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Opinions May 28, 2014

May 28, 2014
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The following Indiana Tax Court opinion was posted after IL deadline Tuesday:
Hamilton County Assessor v. SPD Realty, LLC
49T10-1104-TA-28
Tax. Affirms the Board of Tax Review’s final determination that SPD Realty’s real and personal property qualified for a charitable purposes exemption for the 2009 tax year. The board’s final determination is not contrary to law and unsupported by substantial evidence because New Life occupied and used the property for a charitable purpose; SPD owned the property for a charitable purpose; and the property was predominately used for charitable purposes.

Wednesday’s opinions
7th Circuit Court of Appeals

Joshua Bunn v. Khoury Enterprises Inc.
13-2292
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms summary judgment for Bunn’s former employer, a Dairy Queen franchise, on his claims that his employer violated the Americans with Disabilities Act. Bunn’s failure-to-accommodate claim falls short because his employer did reasonably accommodate his disability. His disparate treatment claim fails because he has not introduced sufficient evidence to create a triable issue of material fact and because the undisputed facts show that the defendant is entitled to judgment as a matter of law.

Indiana Court of Appeals
Craig Alvey v. State of Indiana
20A04-1310-MI-533
Miscellaneous. Affirms denial of Alvey’s petition to expunge the records of his conviction. He did not meet all the requirements of the expungement statute because he admitted twice to violating his probation before successfully completing his sentence.

Melisa R. Digbie v. Review Board of the Indiana Department of Workforce Development and Eaglecare LLC
93A02-1312-EX-1054
Agency action. Reverses decision of the Review Board of the Department of Workforce Development in favor of Eaglecare LLC on Digbie’s claim for unemployment benefits and its determination that Digbie received notice of the Aug. 6 hearing. The DWD presented no evidence that it mailed notice of the hearing to Digbie, so it was not entitled to the rebuttable presumption that she received notice. Remands for a new evidentiary hearing.

Tyrece Robertson v. State of Indiana
49A05-1310-CR-487
Criminal. Reverses convictions of Class D felony attempted residential entry and Class B misdemeanor criminal mischief. The trial court erred when it overruled Robertson’s Baston challenge contesting the state’s use of a peremptory challenge to strike a juror.

A.H. v. State of Indiana
49A05-1309-JV-450
Juvenile. Affirms juvenile court’s restitution order requiring A.H. to provide restitution to the probation department for the electronic monitoring bracelet she cut off and left at a park. The admission agreement left disposition open to the juvenile court and the court did not fail to inquire into her ability to pay.

Jeremy L. Honaker v. State of Indiana (NFP)
39A01-1306-PC-291
Post conviction. Affirms denial of petition for post-conviction relief.

Napoleon Wilson v. State of Indiana (NFP)
45A04-1308-CR-434
Criminal. Affirms denial of motion to suppress the results of a traffic stop.

Jory D. Peters v. State of Indiana (NFP)
45A03-1305-CR-177
Criminal. Affirms murder conviction.

Idowa Hood v. State of Indiana (NFP)
48A02-1309-CR-828
Criminal. Reverses sentence and orders trial court to resentence Hood and calculate his pretrial credit time in accordance with I.C. 35-38-3-2(b)(4).

In the Matter of the Termination of the Parent-Child Relationship of: S.S. (Minor Child), and S.S. (Mother) v. The Indiana Department of Child Services (NFP)
49A02-1309-JT-784
Juvenile. Affirms order denying mother’s motion for relief under Indiana Trial Rule 60(B) and involuntarily terminating her parental rights.

Rachel M. Swaney and Eric Swaney v. Chrysler Group LLC and Grieger's Motor Sales, Inc. (NFP)
64A03-1401-CT-25
Civil tort. Reverses dismissal of the Swaneys’ complaint for failure to prosecute and remands for further proceedings.

Gary Maxwell v. State of Indiana (NFP)
49A05-1308-CR-427
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated in a manner that endangers a person.  

In the Matter of the Termination of the Parent-Child Relationship of: A.C. (Minor Child) and E.C. (Mother) and R.C. (Father) v. The Indiana Department of Child Services (NFP)
48A02-1310-JT-875
Juvenile. Affirms involuntary termination of parental rights.

Johnnie Winford v. State of Indiana (NFP)

22A01-1307-CR-303
Criminal. Affirms conviction of Class C felony nonsupport of a dependent child.

Mercedes Jones v. State of Indiana (NFP)
49A02-1311-CR-962
Criminal. Affirms conviction of Class A misdemeanor theft.

Jeffrey Duncan v. State of Indiana (NFP)
32A01-1310-CR-456
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle with a BAC equivalent to 0.15 and determination as a habitual substance offender.

Kevin A. Deubner v. State of Indiana (NFP)
49A05-1309-CR-439
Criminal. Affirms revocation of placement in community corrections program.

Deandrew Russell v. State of Indiana (NFP)
79A04-1308-CR-389
Criminal. Affirms sentence for Class C felony criminal confinement.

Vincent W. Hren v. State of Indiana (NFP)
32A01-1310-CR-436
Criminal. Affirms sentence for Class D felonies operating a vehicle as a habitual traffic violator and operating a vehicle while intoxicated.

Michael Widup v. State of Indiana (NFP)
49A02-1310-CR-861
Criminal. Affirms conviction for Class A felony child molesting and three convictions of Class C felony child molesting but vacates one conviction of Class C felony child molesting as it violates double jeopardy. Vacates sentence imposed on that count.

William Crockett v. State of Indiana (NFP)
71A04-1307-PC-374
Post conviction. Affirms denial of petition for post-conviction relief.

Jesse Clements v. Davina Curry (NFP)
49A02-1308-CT-713
Civil tort. Affirms dismissal of Clements’ counterclaim, reverses grant of summary judgment to Curry and remands for a hearing.

Rashawn Speed v. State of Indiana (NFP)
35A02-1308-CR-696
Criminal. Affirms convictions of Class A felony child molesting, Class C felony child molesting and Class B felony sexual misconduct with a minor.

Steve D. Boyd v. State of Indiana (NFP)
73A01-1310-CR-438
Criminal. Affirms convictions of Class A felony dealing in cocaine and Class B felony dealing in narcotics.

Justin M. Alexander v. State of Indiana (NFP)
02A03-1310-CR-403, 02A03-1310-CR-404, 02A03-1310-CR-405
Criminal. Affirms convictions and sentences in three separate, but related, criminal appeals. Remands for clarification of the sentencing orders.

Jason Johnson v. State of Indiana (NFP)
49A02-1310-CR-891
Criminal. Affirms convictions of Class D felony residential entry, Class A misdemeanor interference with reporting a crime and Class A misdemeanor conversion.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline Wednesday.
 

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  1. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  2. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  3. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

  4. For some strange reason this story, like many on this ezine that question the powerful, seems to have been released in two formats. Prior format here: http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 That observed, I must note that it is quite refreshing that denizens of the great unwashed (like me) can be allowed to openly question powerful elitists at ICE MILLER who are on the public dole like Selby. Kudos to those at this ezine who understand that they cannot be mere lapdogs to the powerful and corrupt, lest freedom bleed out. If you wonder why the Senator resisted Selby, consider reading the comments here for a theory: http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263

  5. Why is it a crisis that people want to protect their rights themselves? The courts have a huge bias against people appearing on their own behalf and these judges and lawyers will face their maker one day and answer for their actions.

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