Tammy Kaser, et al. v. Jerry Barker, et al. (7/19/04 IndCtApp) [Statutory Construction]
Kirsch, Chief Judge
Tammy Kaser and the Fraternal Order of Police Lodge No. 86, Inc. (collectively “Kaser”) appeal the trial court’s entry of summary judgment in their suit against Jerry Barker, the Chief of the Indianapolis Police Department, the Indianapolis Civilian Merit Board, and the City of Indianapolis (collectively the “City”). She argues that the trial court erred in interpreting the city ordinance governing promotions within the police department as giving the police chief and merit board discretion in selecting individuals for promotions. We affirm. * * *Frank Wenning v. Lottie Calhoun (7/19/04 IndCtApp) [Real Estate; Remedies]Kaser contends that the trial court erred in interpreting the ordinance because it requires individuals to be selected for promotion based solely on their performance in the promotion process and does not give the police chief and merit board discretion in selecting individuals for promotions. * * *
We agree with Kaser that the statute appears to be intended to encourage promotion based on an objective merit system. However, the statute specifies that the opinion of the chief and merit board are also to be considered. Although we may review the power of the legislature to act, we must not evaluate the policies adopted by the legislature. Town of Porter v. Brandstetter, 770 N.E.2d 832, 836 (Ind. Ct. App. 2002), trans. denied. The right and responsibility to determine these public policies, and to adopt, improve, refine, and perfect legislation directed thereto, falls to the legislature, not the courts. Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 971 (Ind. 1986). Our role is to construe and apply these enactments so as to carry out legislative intent. Id. Regardless of the wisdom of the policy, the ordinance clearly gives the police chief and the merit board some input on the qualifications of the candidates for promotion. The trial court did not err. Affirmed.
NAJAM, J., and RILEY, J., concur.
Frank Wenning appeals the trial court’s judgment ordering specific performance of a land sale contract executed between Wenning and Lottie Calhoun. He raises two issues for review, one of which we find dispositive: whether a trial court may order specific performance of a land contract where the contract does not specifically describe the land that is the subject of the contract. We reverse and remand with instructions. * * *Ann Reyes Robbins v. Canterbury School, et al. (7/19/04 IndCtApp) [School Law][Neither the oral contract nor the written agreement described the land being conveyed: "I, Frank Wenning, am saleing[sic] 3 acres of 28 acres to Lottie Calhoun with opion[sic] to buy more if desired. I am saleing[sic] at $3,000 a[sic] acre for a total of $9,000."]
Here, the only designation in the Contract of the land at issue is three acres of Wenning’s twenty-eight acres, plus the street address of 5910 W. Fairground Rd. There is simply no way for third parties to discern from this description precisely which three acres Wenning intended to convey. Accordingly, the contract is too indefinite to specifically enforce because it is impossible to determine how to enforce it.
This conclusion, however, does not end the analysis. Although Calhoun may not be entitled to specific performance, it does not follow that she has no remedy. Another contract remedy is rescission. Rescission of a contract is the annulling, abrogating, or unmaking of a contract. The remedy of contract rescission functions to restore the parties to their precontract position, that is, the status quo. Upon the rescission of a contract, a party must return the property received or the reasonable value thereof if return of the property is impossible. [cites omitted]
Here, rescission of the contract is appropriate. Calhoun is entitled to the return of all of the amounts she expended in reliance on the void Contract. The evidence at trial showed that Calhoun made numerous payments to Wenning and expended sums to have utilities connected and a driveway constructed. We remand to the trial court for a determination and entry of a judgment against Wenning in this amount. Reversed and remanded with instructions.
NAJAM, J., and RILEY, J., concur.
Mother and Jeffrey Schroeder (Father) are the divorced parents of A.R. In 1998, Mother enrolled A.R. at Canterbury School (“School”), a private school in Ft. Wayne, Indiana. A.R. attended School for several years, but in 2003, a dispute arose between School and Mother, apparently in regard to School’s provision of services to help manage A.R.’s diabetes during the school day. As a result of this disagreement, the parties and their representatives exchanged a flurry of correspondence and telephone calls. These communications culminated in the School’s expulsion of A.R. as of March 10, 2003. Mother and Father then met with School officials to negotiate terms for A.R.’s completion of the school year, and Mother drafted an “Agreement” memorializing the parties’ discussions.Charles Schlesinger v. State of Indiana (7/19/04 IndCtApp) [Criminal Law & Procedure]On May 11, 2003, Father filed a formal complaint with the Board of Trustees of School regarding the Agreement. The Board’s investigation produced a report, of which Mother received a copy in July 2003. Mother requested copies of the underlying documents cited in the report. School provided a number of documents, but Mother, apparently not satisfied, filed her “Verified Petition to Compel Compliance with IC 20-10.1-22.4 et seq.” demanding further access to A.R.’s education records. School moved to dismiss based on Ind. Trial Rule 12(B)(6). The trial court granted the motion, and Mother now appeals. * * *
The trial court did not err. Affirmed.
NAJAM, J., and RILEY, J., concur.
Charles W. Schlesinger appeals from his conviction for operating a vehicle with a blood alcohol content of at least .08% but not more than .15%, a Class C misdemeanor, raising the following dispositive issue for review: whether the trial court erred in admitting the results of a hospital toxicology blood test where the test was obtained without a warrant and was not necessary for Schlesinger’s medical care. We reverse. * * *Pamela E. Bryant v. Review Board of Indiana and Hoechst Marion Roussel, Inc. (7/19/04 IndCtApp) [Administrative Law]In this case, the only charge upon which Schlesinger was convicted was operating with a blood alcohol content over .08% but less than .15%. Schlesinger’s counsel advocated for the exclusion of the results of the test of the Hospital sample, but did not prevail. The trial court admitted the results over his objection, and the jury therefore heard evidence that these test results showed a blood alcohol content of .13%. After the admission of these results, Schlesinger’s counsel admitted the results of the test of the State sample. The State sample was inconsistent with the Hospital sample results and was admitted in an effort to cast doubt on the reliability of the Hospital test results. But for the erroneous admission of the Hospital test results, the State sample results would not have been admitted. Under these circumstances, we cannot conclude that the error in the admission of the results was harmless. See id. (finding erroneous admission of blood alcohol test not harmless, even though trial court properly admitted results of second test). Reversed.
NAJAM, J., and RILEY, J., concur.
Pamela Bryant appeals the decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) with respect to her claim for unemployment benefits. We reverse.Robert G. Keys v. State of Indiana (7/19/04 IndCtApp) [Criminal Law & Procedure]Issue. The dispositive issue for our review is whether the administrative law judge (“ALJ”) erred by granting Hoechst Marion Roussel, Inc.’s (“Hoechst”) request to reinstate its appeal from the order granting Bryant unemployment benefits. * * *
There is no written motion or request in the record filed by Hoechst to obtain the reinstatement. As a result, there is no explanation of the reason justifying the reinstatement. It is impossible, therefore, to determine whether good cause existed to warrant the reinstatement. The Board concedes that the record is silent as to why the ALJ reinstated the appeal. Furthermore, Bryant did not receive any notice that Hoechst had requested a reinstatement. Consequently, Bryant had no opportunity to respond to the request or to object to the reinstatement. Based on this record, we cannot find a basis for the reinstatement or conclude anything other than that the reinstatement was an abuse of discretion. Even if the ALJ had the discretion to grant a reinstatement here, it was still obligated to follow the dictates of fairness by requiring Hoechst to demonstrate good cause and by allowing Bryant an opportunity to respond to the request before granting it. The ALJ did not, and, therefore, we find no basis for the reinstatement of the appeal.
Conclusion. Because the record provides no basis for the reinstatement, we conclude that the ALJ erred when it reinstated Hoechst’s appeal. We reverse the reinstatement. Reversed.
CRONE, J., and BAKER, J., concur.
Robert G. Keys appeals his conviction for operating a vehicle with a blood alcohol content of over .08% and less than .15%, a Class C misdemeanor, raising the following issue for review: whether exposure to second-hand cigarette smoke within twenty minutes of the administration of a chemical breath test invalidates the test results as a matter of law. We affirm. * * *Doris A. Sadler, et al. v. State of Indiana, et al. (7/19/04 IndCtApp) [Election Law; Statutory Construction]The regulation, however, specifically spells out prohibited activities: eating, drinking, smoking, and placing foreign substances in the mouth. It does not prohibit exposure to second-hand smoke. Presumably, because certain activities are specifically mentioned, had second-hand smoke exposure been intended to be a prohibited activity, it would have been mentioned as well. See State v. Willits, 773 N.E.2d 808, 813 (Ind. 2002) (enumeration of certain items or words creates implication that other items or words not so specified or enumerated are excluded). Exposure to second-hand smoke is not the equivalent of smoking and is not specifically prohibited. Accordingly, the test results were admissible, and the trial court did not err.
This conclusion notwithstanding, Keys could have challenged the evidence on reliability grounds by presenting evidence, such as expert testimony, that showed that exposure to second-hand smoke renders chemical breath test results unreliable. He failed to do so. Although much has been written about the implications of exposure to second-hand cigarette smoke, we have no evidence in the record before us of any reason such exposure would interfere with a chemical breath test. Nonetheless, we note that it would be a better practice for law enforcement officers transporting suspects for chemical breath tests to refrain from smoking. Affirmed.
NAJAM, J., and RILEY, J., concur.
[Issues] I. Whether the trial court erred in enjoining the Board from using an “office block” ballot format with its optical scan voting system; and II. Whether the trial court erred in enjoining the Board from including the words “The A Team” within a ballot device used to designate candidates of the Marion County Republican Party. * * *[More] The Indianapolis Star has a story on this ballot ruling this afternoon, titled "Court only fuels ballot controversy: Ruling on what Marion County election ballots should look like leaves Democrats, Republicans squabbling over its interpretation."[I Ballot Format] In sum, we affirm the trial court’s grant of the preliminary injunction with respect to the Board’s use of an office block ballot format. Given our determination that the Board failed to assess the practicability of using a party-column ballot format, rather than erred in making such an assessment, issues regarding the meaning of “practicable” and the standard by which a county election board should assess practicability are not squarely before us. It seems clear, however, that a board should develop a record of its deliberations regarding ballot format as a means of forestalling possible challenges and preparing for any challenges that do arise. The legislature’s stated preference for the party-column ballot format may be likened to a “rebuttable presumption” in its favor, and a county election board must overcome that presumption with sufficient proof of that format’s impracticability before it may use another ballot format with a given voting system in a given election.
[II. Republican Party Device] * * * Bearing in mind the principles of statutory interpretation, we conclude that only a state political party chairman may file a copy of a device with a county election board. We first observe that subsection (d) of the statute specifically refers to state political party chairmen, whereas subsection (e) does not specifically refer to county political party chairmen. See J.A.W. v. Marion County Dep’t of Pub. Welfare, 687 N.E.2d 1201, 1210 n.21 (Ind. 1997) (applying rule of ejusdem generis, which provides that “‘where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned’”) (quoting Black’s Law Dictionary 517 (6th ed. 1990)). Our interpretation is further buttressed by subsection (e)’s requirement that a copy of a device be filed in each county in which the political party will be placed on the ballot; it would be absurd to suggest that a county political party chairman possesses this statewide authority.
Accordingly, we conclude that Keeler had no authority to file a copy of the “A Team” device in the first place, and that the likelihood of the state Republican party chairman filing a copy of a similar device in the future is so remote as to be purely speculative. Because this issue is both moot and unlikely to recur, we decline to address it. Affirmed.
BAKER, J., and BARNES, J., concur.
[Update 7/20/04] Here is the updated Star story from today's paper.
Posted by Marcia Oddi at July 19, 2004 01:51 PM