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 Judge Rules Against Home on Injunction

May 27, 2009 - A Rush County judge issued a 13-page ruling late Tuesday afternoon denying a request to issue a preliminary injunction that would have kept the Indian Soldiers' and Sailors' Children's Home open until lawmakers hold a special legislative session.

In his ruling, Rush Circuit Court Judge David Northam said the plaintiffs, a 15-year-old youth who was attending the Home and the Home's alumni association, had not met their burden in the case. Northam's decision now clears the way for the Indiana State Department of Health to move forward with plans to close the Home this Saturday, with the National Guard Youth Challenge Program Academy taking up residence at the Home in 2010.

Northam held a hearing last Thursday on the request for a preliminary injunction. The hearing started at 10 a.m. and included a little more than six hours of testimony and argument, adjourning at a little past six that evening.

Sixteen witnesses testified at the hearing, with 14 of those being for the plaintiffs' side. These witnesses included four students who were living at the Home, three parents and an uncle of these students, two state lawmakers, two educators from the Home, the president of the Home alumni association, and the chief administrative officer for the American Legion Department of Indiana. The two witnesses who testified for the defense included the ISDH's director of special institutions and the current director of the state's Department of Children Services.

In yesterday's ruling, Northam said the plaintiffs had not shown they would suffer irreparable harm if the injunction were not granted. He also said they had not shown a likelihood that they would be able to succeed on the merits of their case.

"If the Plaintiffs would have filed a complaint attacking the authority of the ISDH to close the (Home)," Northam wrote in his ruling, "based upon the current state of the law, Plaintiffs would have no reasonable likelihood of being successful on the merits of the case."

Northam noted that Indiana statutes governing the Home do not restrict the ISDH or state health commissioner's authority to close the Home. He also noted that in a 2006 case, which dealt with the Silvercrest facility in New Albany, the Court of Appeals ruled, based on similar statutory language, that the health commissioner's "complete administrative control" over the facility included the authority to close it. While the General Assembly could have placed restrictions on the ISDH's ability to close the Home, the judge noted they had not done so.

Everett Powell II, attorney for the plaintiffs, held a press conference on the front steps of the Home's administration building Tuesday at 4:30 p.m. With a crowd of Home employees, alumni, and local and Indianapolis news media present, Powell announced the court's ruling, which had been faxed to him at the Home just before 4 p.m.

Powell said that some of the children who have left the home and returned to their families have already gotten in trouble with the criminal justice system. He said he didn't think the governor had made the right decision in closing the Home and called on state lawmakers to step in during their upcoming special legislative session to reverse this decision.

"These are their constituents," Powell said of the children who lived and employees who worked at the Home, "and I think (lawmakers) have a duty to take care of their own constituents."

Powell said he respected the decision that Northam made, and acknowledged it was probably not an easy one for him to make. However, he made it clear he did not agree with the outcome.

"Just because something is legal, doesn't mean it's right," Powell said. Asked whether the plaintiffs plan to appeal Northam's ruling, Powell said they do. News of Northam's ruling was clearly not what those attending the press conference had hoped to hear. The feelings Diane Love expressed were indicative of the prevailing mood.

"I think this is the biggest travesty there ever was," Love said. As for Gov. Mitch Daniels, a co-defendant in the case with the ISDH, Love said she didn't think the governor had been honest and forthcoming about plans to close the Home, and said the people need to "ditch Mitch."


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