Fraternal Order of Police Lodge 73, et al. v. City of Evansville, Indiana & the Public Employees Retirement Fund (6/3/04 IndCtApp) [Statutory Interpretation]
ROBB. Judge
The Fraternal Order of Police (“FOP”) appeals the trial court’s grant of the City of Evansville’s (“the City”) motion for summary judgment. We reverse. * * *State of Indiana v. Theodore L. Allen (6/2/04 IndCtApp) [Juvenile Law]In 1999, the Retirees and the FOP sued the City and the Indiana Public Employees Retirement Fund to recover additional retirement benefits. More specifically, the Retirees and the FOP argue that the City incorrectly calculated their police pension benefits because the City did not base the pension benefits upon the salary of a first-class patrolman with at least twenty years of service who receives corporal pay. The City subsequently moved for summary judgment. After oral arguments on the motion, the trial court granted the City’s motion for summary judgment after concluding that corporal pay is an incentive pay or bonus and should not be considered as “salary.” * * *
Furthermore, corporal pay is not an incentive pay or bonus. The reason first class patrolmen in the Criminal Investigation division receive corporal pay is because they perform the same duties and share the same responsibilities as corporals in that division. The “equal pay for equal work” provision in the CBA required that these first class patrolmen be compensated for their duties and responsibilities. Therefore, corporal pay is not an incentive given to “encourage” conduct, but rather is an adjustment mandated by the “equal pay for equal work” provision in the CBA.
Conclusion. Because the City should have calculated the police pension benefits based upon the salary of a first class patrolman receiving corporal pay, we reverse the trial court’s grant of the City’s motion for summary judgment and remand this cause for further proceedings consistent with this opinion. Reversed and remanded.
SHARPNACK, J., and DARDEN, J., concur.
Plaintiff-Appellant State of Indiana (“the State”) appeals from the trial court’s order granting Defendant-Appellee Theodore L. Allen’s (“Defendant”) motion to dismiss the notice of probation violation. * * *J.H. v. State of Indiana (6/3/04 IndCtApp) [Juvenile Law]In the present case, Defendant never received a written copy of the conditions of his probation prior to his alleged violation of probation. Although the oral advisement of the conditions of probation is fairly specific, there is no evidence in the record showing Defendant’s acknowledgement and understanding of the conditions of his probation. The trial judge pro tempore announced that the oral advisement was the order of the court and then turned to the issue of when Defendant could report for work release. The judge did not ask Defendant if he acknowledged and understood the conditions. For the error to be harmless, as the State suggests, the record would need to indicate such. * * * The trial court did not err by ordering the dismissal of the notice of probation violation. Affirmed.
NAJAM, J., and DARDEN, J., concur.
The dispositive issue here is whether, as the State argues, the appeal must be dismissed because J.H. was obligated to file a motion for relief from judgment in accordance with Indiana Trial Rule 60(B). As our supreme court observed in Tumulty v. State, “[o]ne consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal.” So too, in juvenile cases, our supreme court has determined that a defendant may not appeal a delinquency adjudication following his admission to the facts of the offense. ... While post-conviction remedies are not available to juveniles, ..., the appropriate remedy for relief that a juvenile defendant must seek is through the filing of a Trial Rule 60 motion. ... Inasmuch as J.H. is attacking the validity of his admission to the offense and he has failed to file a motion pursuant to Trial Rule 60, we are compelled to dimiss this appeal. Thus, we remand this cause to the trial court for the purpose of permitting J.H. to file therein a motion for relief from judgment. Appeal dismissed.William Hays v. Paul Harmon (6/3/04 IndCtApp) [Estates & Trusts]
FRIEDLANDER, J., concurs.
BAILEY, J., concurs with opinion:I concur with the majority’s holding that, because seventeen-year-old J.H. admitted to committing the offense of driving a vehicle without a license, he may only challenge his adjudication of delinquency in a subsequent motion for relief from judgment pursuant to Indiana Trial Rule 60. ... However, I write separately to express my concern that the Marion Superior court’s jurisdiction and subsequent adjudication of J.H. as a juvenile delinquent, rather than an adult offender, may be in contravention of Article I, Section 23 of the Indiana Constitution. * * *
Because the issue of whether Indiana Code Section 31-30-1-8 violates Article I, Section 23 of the Indiana Constitution is not squarely before us today, and because this Court does not issue advisory opinions on constitutional issues, I decline to express an opinion on the constitutionality of the statutes at issue.
However, Indiana Code Sections 31-30-1-8 and 33-5-29.5-4 may not survive constitutional scrutiny because they give Marion and Lake counties the authority to adjudicate certain misdemeanor traffic offenders as juveniles, rather than to try them as adult offenders. As such, these statutes are juxtaposed to Indiana Code Section 31-30-1-2, which exposes children—sixteen years of age or older—in the other ninety Indiana counties to criminal liability for commission of the same misdemeanor traffic offenses. Thus, this constitutional issue is still viable for debate inasmuch as the county wherein a juvenile commits the misdemeanor traffic offense may not be rationally related to the ultimate disposition for that offense.
For these reasons, I concur and write separately.
Because the trust provision in Rains’ will evinced a charitable purpose and was sufficiently definite to ascertain with reasonable certainty the six elements of a valid trust pursuant to Indiana Code § 30-4-2-1(b), the trust provision created a valid charitable trust. We affirm the circuit court’s grant of partial summary judgments for the Estate, finding that Rains had testamentary capacity at the time he executed the will that gave life to a valid charitable trust. Affirmed.Posted by Marcia Oddi at June 3, 2004 01:51 PM
SHARPNACK, J., and MATHIAS, J., concur.