Indiana Court Decisions – Aug. 15-27, 2019

7th Circuit Court of Appeals

Aug. 22

Civil Plenary

Abortion/South Bend Clinic Licensing

Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al.

19-2051

A preliminary injunction issued to allow the doors of a South Bend abortion clinic to open has been affirmed by the 7th Circuit Court of Appeals, but the appellate court narrowed the injunction and struck a compromise between the parties’ dueling views of Indiana’s licensing system.

The federal appeals court answered the question of whether one abortion provider is entitled to a preliminary injunction against one part of Indiana’s “elaborate network” of abortion laws as it relates to one clinic in one city in an Aug. 22 opinion.

That abortion provider, Texas-based Whole Woman’s Health Alliance, was granted an injunction earlier this year by Indiana Southern District Senior Judge Sarah Evans Barker, who allowed the nonprofit to open an abortion clinic in South Bend without a state-required license after the provider was repeatedly denied a license.

WWHA entered a legal battle with Indiana after The Indiana State Department of Health twice denied its license application. The state has maintained that the nonprofit failed to provide requested safety documentation, and Indiana Attorney General Curtis Hill’s office appealed Barker’s injunction ruling to the 7th Circuit after the federal judge declined the state’s request to stay her May 31 ruling.

In Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al., 19-2051, the 7th Circuit declined to delve into Whole Woman’s Health’s broad allegations against Indiana abortion laws and licensing scheme, instead choosing to address the disposition of its motion for a preliminary injunction and the state’s request for a stay.

The panel, in response to the state’s motion to stay, concluded the district court’s preliminary injunction should be narrowed “to one against only the inclusion of facilities that provide medical abortions … and only with respect to the proposed clinic in South Bend.”

Further, the appellate panel held that the district court’s “broad condemnation of Indiana’s licensing scheme runs contrary to Supreme Court precedent.” It noted the state may, for the most part, administer that system in the ordinary course.

“We therefore order the district court to modify the injunction to instruct Indiana to treat the Alliance’s South Bend facility as though it were provisionally licensed,” Chief Judge Diane Wood wrote for the panel joined by judges Joel Flaum and Frank Easterbrook. “This respects the state’s interest in regulating medical facilities, while at the same time it allows the Alliance to keep providing medication abortions at its South Bend clinic while the case proceeds.”

The panel also found the district court strayed from guidance in determining the state’s entire licensing scheme is unconstitutional, pointing to provisions setting standards for sanitation, emergency equipment and follow-up care. Those provisions, Wood said, fall within “accepted medical practices,” and caselaw shows that “to the extent that Indiana’s licensing statute falls within ‘accepted medical practice[s]’ and is ‘legitimately related’ to the state’s interests in women’s health and fetal life, it passes constitutional muster.”

However, the 7th Circuit raised concerns about the state’s handling of the Alliance’s license application, pointing out that while Indiana may use licensing as a legitimate means of vetting and monitoring providers, it acted unconstitutionally to the extent it used its licensing scheme to prevent the South Bend clinic from opening “simply to block access to pre-viability abortions… .”

Focusing on the likelihood of success requirement, the panel relied on instruction from Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), to determine what the ISDH was doing with the Alliance’s license application during the past two years.

“The record before us paints a troubling picture. A seemingly endless cycle of demands for information, responses, and new demands does not suggest a bona fide process,” Wood wrote. “At some point, enough is enough. As courts throughout the nation recognize every day in resolving litigation discovery disputes, there comes a point where record requests become so duplicative, or marginally (if at all) relevant, that they are nothing but harassment.

“Indiana’s most recent requests are particularly concerning. Indiana has a declaration from (Whole Woman’s Health CEO Amy) Hagstrom Miller, made under penalty of perjury, that none of the WWH or Alliance clinics has had trouble obtaining or keeping licenses,” Wood continued. “Nonetheless, the state’s document requests refuse to take her at her word and demand voluminous proof from those organizations’ internal files directly. This strikes us as the equivalent of asking if you have ever had a speeding ticket, and instead of accepting a sworn affidavit, asking you to go to all 50 states, the District of Columbia, and the 14 U.S. territories (or why not all 195 countries in the world?) and obtain certifications from each confirming that you have not.

“There is no need for such scorched-earth tactics. Indiana is entitled to protect patient safety and fetal life through its licensing scheme, but if it is doing little more than throwing up one hurdle after another in an effort to keep the Alliance’s doors closed, it has gone beyond constitutional boundaries,” the panel concluded.

Thus, the 7th Circuit found no clear error in the district court’s conclusion that Indiana did not give Whole Woman’s Health’s application “a fair shake.” It rejected the state’s assertion that its actions were based on constitutionally permissible concerns for women’s health or fetal life and concluded its motion to stay the district court’s injunction, modified by the 7th Circuit, must be denied.

But to ensure the state continues to have its normal regulatory power over the clinic, including the power to conduct inspections, the 7th Circuit directed the district court to issue a revised preliminary injunction under Federal Rule of Civil Procedure 65(d).

“Because we have concluded that, on the present record, the Alliance has shown a likelihood of success on the merits of its undue-burden challenge, we need not address its equal protection arguments,” the panel concluded. “This is also not the time to address the parties’ broader arguments about Indiana’s licensing scheme.”

The court therefore affirmed the granted preliminary injunction as modified in accordance with its opinion.
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Aug. 23

Conspiracy/Machine Gun, Laser Sight Sales

USA v. Vahan Kelerchian

18-1320

A Pennsylvania gun dealer who was convicted of multiple federal counts after he conspired with Lake County law enforcement officers to procure machine guns and laser sights lost his appeal Aug. 23.

The 7th Circuit Court of Appeals affirmed Vahan Kelerchian’s conviction on four counts each of conspiracy and making false writings, as well as a money-laundering charge. A jury in the U.S. District Court for the Northern District of Indiana convicted Kelerchian on all counts except a single bribery charge. He was sentenced to 100 months in prison.

Former Lake County patrolman and SWAT team armorer Ronald Slusser and ex-Deputy Chief Joseph Kumstar of the Lake County Sheriff’s Department also were charged in the conspiracy, pleaded guilty and testified against Kelerchian, who ran a business called Armament Services International.

Inc. Judge David Hamilton wrote that the trio conspired “to fool manufacturers into thinking they were selling to local police forces when the machineguns and laser sights were instead going into private hands.”

Among those sales, the three and Slusser’s cousin in December 2008 ordered 50 machine guns for $83,026 from gunmaker Heckler & Koch. Kumstar provided paperwork on sheriff’s department letterhead saying the weapons were for the department’s exclusive use, and after the Bureau of Alcohol Tobacco Firearms & Explosives approved the sale, the weapons were altered and resold “for a substantial profit,” Hamilton wrote.

Using a similar conspiracy, the three purchased additional machine guns and laser scopes that were said to be bound for the Lake County Sheriff’s Department and the Lowell, Indiana Police Department.

The 7th Circuit rejected all of Kelerchian’s arguments on appeal in United States of America v. Vahan Kelerchian, 18-1320.

“On appeal, Kelerchian raises numerous issues, but we affirm his convictions on all counts,” Hamilton wrote for the panel in a 41-page order, turning away his arguments of sufficient evidence, improper jury instruction and prosecutorial misconduct during closing arguments.
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Aug. 27

Civil Plenary — Abortion/Amended Parental Consent Statute

Planned Parenthood of Indiana and Kentucky, Inc. v. Jerome Adams, et al.,

17-2428

A federal appeals court has upheld an injunction blocking a 2017 Indiana law that would have required parental notification for mature minors seeking an abortion. One member of the three-judge panel dissented, however, and would have allowed the law to take effect.

The ruling in Planned Parenthood of Indiana and Kentucky, Inc. v. Jerome Adams, et al., 17-2428, upheld an injunction issued by Indiana Southern District Senior Judge Sarah Evans Barker blocking Senate Enrolled Act 404 from taking effect. That 2017 legislation would have amended Indiana Code § 16-34-2-4(d), Judge David Hamilton wrote, so that “(e)ven if a judge concludes that a parent need not consent to the abortion, either because the unemancipated minor is mature enough to make her own decision or because the abortion is in her best interests, and even though the (judicial) bypass process is supposed to be confidential … parents still must be given prior notice of the planned abortion unless the judge also finds such notice is not in the minor’s ‘best interests.’”

Writing for the majority, Hamilton, joined by Judge Ilana Rovner, affirmed Barker’s injunction “(i)n light of the lopsided factual record, the deferential standard of review, and the preliminary status of the findings of fact and conclusions of law… .”

The amended statute requires that “(t)he young woman’s attorney ‘shall serve the notice required by this subsection by certified mail or by personal service,’” Hamilton wrote. That notice to parents would come after a judicial bypass hearing, but before an abortion is performed when a judge has authorized it.

Hamilton noted that Barker found Planned Parenthood provided evidence showing 96 percent of minors seeking abortions had obtained parental consent, and just 4 percent had obtained a judicial bypass — about 10 minors a year statewide. In those cases, minors are given the name of a “bypass coordinator” who does not work for Planned Parenthood but maintains a list of attorneys who can represent the young woman. Between October 2011 and September 2017, about 60 minors contacted the coordinator, most of whom were 17 years old and had not told their parents they were pregnant.

Citing the district court evidence, Hamilton wrote, “Some fear being kicked out of their homes. Others fear being punished, or fear that their parents will try to block an abortion,” among other reasons for seeking a judicial bypass. An expert testified that the notice requirement “carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction.”

“The bypass coordinator currently informs young women that no one involved in the bypass process will notify their parents that they are pregnant or seeking an abortion. … As the district court found, however, Indiana’s new law makes this assurance impossible. … The district court also found that bypasses granted to Planned Parenthood’s patients ‘have generally been based on the juvenile court’s finding that the minor was sufficiently mature to make the abortion decision independent of her parents,’ as distinct from the minor’s ‘best interests.’”

Applying the undue burden standard established in Planned Parenthood v. Casey, the majority held that “(f)or those pregnant minors affected by this Indiana law, the record indicates that in a substantial fraction of cases, the parental notice requirement will likely have the practical effect of giving parents a veto over the abortion decision. That practical effect is an undue burden because it weighs more heavily in the balance than the State’s interests.

“… Planned Parenthood’s evidence shows a serious risk that prior notice, instead of giving parents an opportunity to offer wise counsel, will actually give parents an opportunity to exercise a practical veto, preventing the pregnant minor from actually exercising the constitutional right the juvenile court has allowed her to exercise,” Hamilton wrote.

Dissenting Judge Michael Kanne, however, would overturn Barker’s injunction. He wrote that the U.S. Supreme Court has confirmed that both parental consent and parental notification laws are constitutional. “The question presented in this case is straightforward and narrow: does the Constitution prohibit Indiana from requiring a mature minor to notify her parents of an impending abortion when she cannot show that avoiding notification is in her best interests?”

“Planned Parenthood has not introduced evidence that establishes that requiring mature minors to notify their parents that they intend to have an abortion (in a scenario where the judge has found that avoiding notification is not in their best interests) constitutes an undue burden,” Kanne wrote. “We should not invalidate a law passed by a democratically-elected state legislature ‘while the effects of the law (and reasons for those effects) are open to debate.’ A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684, 693 (7th Cir. 2002). Because the majority’s opinion is inconsistent with our precedent — which remains good law despite the majority’s suggestion to the contrary — I respectfully dissent.

“The operative question is whether, given the State’s manifest interest in involving parents in consequential decisions by their children, the notification requirement constitutes a substantial obstacle for mature minors. The record provides no clarity on that point, and so — because the law was enjoined pre-enforcement — we can only speculate. As the majority recognizes, ‘evidence matters,’” Kanne wrote. “The district court abused its discretion by enjoining the law pre-enforcement, and its decision should be reversed.”

The Indiana Attorney General’s office said it was evaluating its appellate options.

Civil Plenary — National Voter Registration Act/Crosscheck Voter Roll Purge Law

Common Cause Indiana et al. v. Connie Lawson, et al.,

18-2491 and 18-2492

A federal appeals court confirmed that Indiana’s attempt to cleanse its voter rolls by using the controversial Crosscheck database violates the National Voter Registration Act. The ruling upholds a lower court ruling in a suit brought by a national public-interest group.

In its Aug. 27 ruling in Common Cause Indiana et al. v. Connie Lawson, et al., 18-2491 and 18-2492, the 7th Circuit Court of Appeals affirmed the preliminary injunction preventing Indiana from implementing Senate Enrolled Act 442 passed in 2017. The law would have allowed Indiana to remove voters from the from the rolls without even trying to provide notification to the voters.

Indiana has been using the Crosscheck system, which pulls voter data from multiple states to identify potential duplicate registrations. However, the 2017 law would have allowed the Hoosier state to kick voters from the rolls if they were registered in another state. The law did not require the state contact the voters directly to confirm they wanted to cancel their registrations.

The 7th Circuit panel noted the NVRA sets boundaries within which states must operate their voter-registration processes. For states to remove a name from the voter rolls, the registrant must either inform the state about his or her change in residence or not respond to a notice inquiring about continued eligibility. Moreover, even when the registrant fails to respond, the state still cannot remove the voter’s name until that individual has not voted or appeared to vote during the period after the notice was sent.

“Not only does Indiana’s reading ignore the common-sense interpretation of the phrase “the registrant confirms,” but also, by allowing an initial piece of information suggesting a change in residency to perform double-duty as confirmation of the change, the state would render the confirmation requirement and the alternative notice provisions ‘insignificant, if not wholly superfluous,’” Chief Judge Diane Wood wrote, citing Duncan v. Walker, 533 U.S. 167, 174 (2001).

Judge Michael Brennan wrote a concurring opinion.

Indiana Supreme Court

Aug. 21

Post-Conviction —Dismissal Reversal/Second Appeal

Troy R. Shaw v. State of Indiana

19S-PC-466

A man convicted of murder may proceed in his second pursuit of post-conviction relief now that the Indiana Supreme Court has concluded his petition addressed only the grounds arising from his second appeal and was therefore not considered a second or successive petition.

After a fight during a work-related trip resulted in the death of a hotel employee, Troy Shaw was convicted of murder in Allen County in 2002. Shaw’s 60-year sentence was affirmed on direct appeal and he later filed his first petition for post-conviction relief, alleging ineffective assistance of trial and appellate counsel. The post-conviction court denied that first petition, as did the Court of Appeals.

However, the 7th Circuit Court of Appeals ordered that Shaw be issued a writ of habeas corpus unless the state granted him a new appeal. Shaw moved for alternative relief, but that motion was improperly filed and, thus, never officially filed.

In a second direct appeal, Shaw argued he was prejudiced when the state amended his charging information 17 months after the set omnibus date. The appellate court affirmed his conviction and sentence, holding Shaw failed to demonstrate substantial prejudice. It additionally affirmed the dismissal of Shaw’s second petition for post-conviction relief, which alleged his appellate attorney failed to properly argue the issues in his new direct appeal.

But Indiana Supreme Court justices granted transfer to Shaw’s appeal in a per curiam opinion. The high court concluded in Troy R. Shaw v. State of Indiana, 19S-PC-466, that because Shaw’s petition addressed only the grounds arising from his second appeal, it was not a “second” or “successive” petition as defined by Indiana Post Conviction Rule 1(12).

“Here, the issues and events Shaw raises in his second petition for postconviction relief had not yet occurred when he filed his first postconviction petition in April 2007. While a second or successive postconviction petition remains subject to the screening procedure outlined in P-C. R. 1(12), a post-conviction petition that raises only issues emerging from the new trial, new sentencing, or new appeal obtained from a federal court through habeas proceedings is not a ‘second’ or ‘successive’ petition,” the per curiam opinion said. “Therefore, Shaw is entitled to pursue his present post-conviction petition in the trial court without seeking leave from the Court of Appeals.”

Indiana Court of Appeals

Aug. 15

Criminal — Fourth Amendment/Warrantless Search of Sock

Jarvis Peele v. State of Indiana

19A-CR-313

Three Clark County drug convictions were overturned after the Indiana Court of Appeals determined drug evidence found in a suspect’s sock should not have been admitted.

In Jarvis Peele v. State of Indiana, 19A-CR-313, Jeffersonville Police came into contact with Jarvis Peele when the car he was riding in was stopped for failure to use a turn signal. Officer Levi James testified that Peele exhibited behaviors that indicated he might be armed, including patting his pockets and raising his entire body to look in the area around the vehicle’s center armrest.

During a subsequent pat-down search, James felt an object in Peele’s waistband. A sock then rolled out of the leg of Peele’s pants, and inside the sock officers found baggies containing methamphetamine, marijuana and pills.

Peele was charged with possession of meth, marijuana and a controlled substance and proceeded pro se. He moved to suppress the physical evidence acquired during the traffic stop, but the Clark Circuit Court denied the motion, noting the sock had fallen out of Peele’s pants, so it wasn’t a “search.”

Peele was then convicted of a Level 6 felony on the meth charge, a Class B misdemeanor on the marijuana charge and a Class A misdemeanor on the controlled substance charge. In overturning all three convictions, Indiana Court of Appeals Judge L. Mark Bailey initially rejected the state’s argument that Peele had not preserved his evidentiary challenge, noting his objection to the admission of the drugs found in the sock was not merely an objection to “cumulative evidence” to the officers’ testimony.

Turning then to the merits, the Court of Appeals agreed with Peele that the search of the sock exceeded the limits of a Terry search in violation of the Fourth Amendment. Specifically, Bailey said James testified that he thought the object he felt in Peele’s waistband was “possibly a weapon.”

“The testimony of possibility is insufficient,” Bailey wrote, citing D.D. v. State, 668 N.E.2d 1250, 1253-54 (Ind. Ct. App. 1996). “As such, the State did not justify the search of the sock on the basis of the plain feel doctrine.”

Further, when the sock rolled out of Peele’s pants, he was handcuffed and was no longer in possession or control of the sock, the appellate court said, rejecting the state’s argument that Peele had “abandoned” the sock.

“During a patdown for officer safety, Officer James detected a non-anatomical object in Peele’s waistband and came to suspect that he was carrying ‘contraband’ of some type, ‘possibly a weapon,’” Bailey wrote. “When a sock fell from Peele’s person, Officer James was unaware of the nature of its contents.

“But rather than pushing the sock aside and obtaining a warrant, Officer James conducted a general search, ‘possibly’ for a weapon or perhaps for other contraband,” he continued. “In doing so, he broadened the scope of the Terry search beyond its protective purpose.”
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Aug. 20

Criminal — Bond/Slain Defendant

Clifton E. Sharp v. State of Indiana, and Brianna Finney

19A-CR-467

A dispute over who should receive bond money paid on behalf of a now-deceased defendant will proceed in court after the Indiana Court of Appeals reversed summary judgment for the woman who posted the bond.

In Clifton E. Sharp v. State of Indiana, and Brianna Finney, 19A-CR-467, Clifton Sharp was charged in March 2017 with multiple drug felonies. While he was in custody, Sharp negotiated the sale of his vehicle, and $10,000 of the proceeds was used by Brianna Finney to pay Sharp’s bond the following January.

Sharp was released in April 2018, at which point Finney shot and killed him. According to a footnote in the Indiana Court of Appeals opinion, Finney maintains she acted in self-defense, and she has never been charged in connection with Sharp’s death.

Also in April 2018, Finney filed a motion in the criminal case for the bond money to be released to her. Sharp’s estate also made a claim to the money, but Finney filed a summary judgment motion challenging the estate’s standing. She included an affidavit claiming she had posted the bond, though she did not assert the money had belonged to her when it was posted.

Summary judgment was initially denied to Finney, but when a new judge took over the case, the Clark Circuit Court entered judgment as a matter of law for Finney while also determining the estate did have standing to make a claim to the bond money.

In partially upholding that ruling, Indiana Court of Appeals Judge John Baker first wrote that Finney made an “implicit request” of the new judge to reconsider the initial judge’s summary judgment ruling because her counsel engaged the new judge in a discussion on how to proceed. The estate likewise implicitly agreed by also engaging in that discussion. Even so, the COA determined the trial court erred by entering judgment as a matter of law in favor of Finney because she never claimed the bond money was hers. The presumption under Indiana Code § 35-33-8-3.2(b) is that bond money will remit to the defendant or, as in this case, their estate.

“Here, the parties have not had the opportunity to develop a record regarding whether Finney’s claim to the money overcomes the presumption that it should go to the Estate,” Baker wrote. “We find that there is an issue of fact in this regard, as it cannot be determined from the record before us whether Finney was acting as Sharp’s agent when she posted the bond, using his own money on his behalf, or was, instead, acting on her own behest with her own money — or, in either event, whether Sharp was a third-party beneficiary of the bond contract between Finney and the clerk.”

Judgment for Finney was thus reversed, and the case was remanded for further proceedings.
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Aug. 27

Criminal — Harassment/Social Media Threats

Constance J. McGuire v. State of Indiana

18A-CR-02554

A mother who made threatening social media posts toward a police officer after her son’s death has lost an appeal of her harassment conviction. The Indiana Court of Appeals divided on the sufficiency of evidence supporting her conviction, with a dissenting judge declaring the state’s criminal harassment statute “unconstitutionally overbroad and facially invalid because it is susceptible of prohibiting protected expression.”

Constance McGuire was convicted of Class B misdemeanor harassment after she posted on Facebook that members of the Kokomo Police Department “better watch out” and that “this mother is on a rampage and ready to shoot and kill.” McGuire took to social media after the death of her son, who died after consuming methamphetamine during a traffic stop in which Kokomo police officer Jeramie Dodd was involved.

Upon her son’s death, McGuire made a Facebook post that included several threats against Dodd that were later reported to police by one of McGuire’s more than 1,000 Facebook friends. The Indiana Court of Appeals heard oral arguments in the case last month, considering McGuire’s argument on appeal that her specific Facebook posts were constitutionally protected and that her conviction amounted to an unconstitutional impairment of speech.

An appellate panel consisting of Judges L. Mark Bailey, Patricia Riley and Rudolph Pyle III split on McGuire’s conviction, with the majority affirming the trial court in Constance J Mcguire v. State of Indiana, 18A-CR-02554.

First, the majority concluded that McGuire had the expectation that the offending conduct would come to the attention of Dodd when she transmitted the messages online. It additionally found her “profanity-laced threat” urged Dodd to commit suicide, which the majority considered as obscene under Indiana Code § 35-45-2-2(a)(4)(B).

However, Pyle dissented in a separate opinion, finding no evidence was introduced showing McGuire’s Facebook posts fit within an unprotected category. Specifically, Pyle noted that the state failed by charging McGuire with harassment instead of intimidation, and that the harassment statute is “unconstitutionally overbroad.”

The dissenting judge continued to argue that the “true threat” analysis did not apply to the case and the state did not present sufficient evidence of McGuire’s intent.

“This dissent does not condone the disturbing, crass statements made by McGuire about Officer Dodd,” Pyle wrote in his dissent. “However, our primary duty is to uphold the principles enshrined in the Federal and State Constitutions. When a statute falls short, this Court has a duty to reverse a conviction, even if it might leave a sour taste in one’s mouth.”

But in affirming, the majority found McGuire’s speech amounted to a constitutionally proscribable true threat and that her speech could be regulated consistent with federal constitutional principles.

“… [I]n view of the true threat contained in the speech, there is sufficient evidence McGuire lacked the intent to engage in ‘legitimate communication’ with regard to the United States Constitution,” Bailey wrote for the majority.

“Moreover, because the speech was not unambiguously political and posed a threat to safety, there is sufficient evidence McGuire lacked the intent to engage in ‘legitimate communication’ with regard to the Indiana Constitution,” the majority concluded. It therefore found no failure of proof and determined McGuire’s conviction concerned proscribable speech.•