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Opinions Oct. 30, 2012

October 30, 2012
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Indiana Supreme Court
Lisa J. Kane v. State of Indiana
30S04-1206-CR-372
Criminal. Reverses conviction of Class D felony receiving stolen property and remands for retrial. The trial court improperly instructed the jury on the mental state required to convict Kane.

Indiana Court of Appeals
In the Matter of the Estate of Nathaniel Kappel v. William Kappel, Judith Kappel, and Mark Kappel
32A01-1111-ES-526
Estate, supervised. Affirms denial of the estate’s recovery of insurance proceeds, directive that William and Mark Kappel withdraw their claims against the estate, and the denial of the complaint for contribution. Also affirms denial of the request the estate pay William, Judith and Mark Kappel’s attorney fees. The probate court’s judgment is not clearly erroneous based on the evidence.

Boulder Acquisition Corp. (n/k/a Affiliated Computer Services, LLC), et al. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development
93A02-1202-EX-127
Agency appeal. Reverses liability administrative law judge’s decision to combine BAC’s unemployment experience account with all its subsidiaries’ accounts and in recalculating BAC and the subsidiaries’ contribution rates. BAC is not a successor employer to the subsidiaries under I.C. 22-4-10-6(a) or 22-4-11.5-7. Remands to the Department of Workforce Development to adjust their respective experience accounts accordingly and to refund any overpayment by BAC and/or the subsidiaries.

Mark Carter and John E. Carter, Co-Personal Rep. of the Estate of John O. Carter, M.D., Deceased v. Loretta Robinson, Individually and as Admin. of the Estate of John E. Robinson, Deceased
45A05-1110-CT-563
Civil tort. Affirms $550,000 verdict in favor of Loretta Robinson, individually and as administratix of the estate of John E. Robinson, deceased, following John Robinson’s complaint for medical malpractice. Concludes Dr. James Bryant’s expert opinion is based on a proper use of the differential etiology methodology, that the trial court did not abuse its discretion when it excluded Dr. Michael Kaufman as a witness in support of Carter. Denies Robinson’s request for attorney fees.

Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al. v. Indiana Finance Authority and Indiana Gasification, LLC
93A02-1112-EX-1141
Agency appeal. Reverses approval by the Indiana Utility Regulatory Commission of a substitute natural gas purchase and sale agreement between the Indiana Finance Authority and Indiana Gasification. The utilities and industrial group’s claims are justiciable, the commission did not exceed its jurisdiction when it approved the contract, and the contract’s definition of retail end use customer inappropriately included industrial transportation customers even though the Legislature did not intend for these customers to be subject to the Substitute Natural Gas Act as retail end use customers. Chief Judge Robb concurs in part and dissents in part.

Kevin Reaves v. State of Indiana (NFP)
49A02-1202-CR-131
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

In the Matter of the Revocable Trust of Mary Ruth Moeder (NFP)
49A02-1205-TR-377
Trust. Affirms order modifying the trust agreement.

Thomas R. Clements v. State of Indiana (NFP)
20A03-1204-CR-161
Criminal. Affirms denial of verified petition for permission to file a belated notice of appeal.

State of Indiana v. Christopher Holloway (NFP)
49A02-1203-CR-240
Criminal. Reverses revision of Holloway’s sentence and remands with instructions to reinstate the original sentence.

Demetriese Gunn v. State of Indiana (NFP)
49A02-1202-CR-152
Criminal. Affirms convictions of Class C felony neglect of a dependent and Class D felony strangulation.
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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