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Opinions June 26, 2014

June 26, 2014
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The following opinions were posted after IL deadline Wednesday:
7th Circuit Court of Appeals
Chris Cabral and Nancy Tarsitano v. City of Evansville, Ind.; Appeal of: West Side Christian Church
13-2914
U.S. District Court, Southern District of Indiana, Evansville Division, Judge Sarah Evans Barker.
Civil. Dismisses West Side Church’s appeal of the court order that permanently enjoined the city from permitting the erection of the church’s crosses on the public riverfront. West Side does not have standing to bring the appeal because the court cannot redress any injury the church might have suffered because Evansville is not a party to this appeal and could prohibit the display’s erection regardless of any issue ordered.


Indiana Court of Appeals
First American Title Insurance Company v. Darrell Calhoun and Barbara Calhoun, Successors to Marcus Burgher III, for Issuance of Tax Deed
13A01-1304-MI-177
Miscellaneous. Affirms order denying the original intervenor/mortgage foreclosure judgment holder’s motion for summary judgment, in which it sought to set aside the tax deed issued to the tax sale purchaser and original petitioner, Burgher, for property he later quitclaim deeded to substitute petitioners, the Calhouns. There are questions of fact regarding the constitutional adequacy of the 4.6 Notice and regarding the balancing of the parties’ interests and regarding whether Burgher gave notice in a manner reasonably calculated to inform WM of the issuance of the tax deed.

Indiana Tax Court
Clark County, Indiana v. Indiana Department of Local Government Finance
39T10-1102-TA-9
Tax.  Affirms the DLGF’s final determination that denied Clark County’s petition for an excess property tax levy for the 2011 budget year. The county’s decision to not charge the maximum property tax levy that was allowed under statute for the 2008 year is not an “error in data” that the DLGF can later fix.

Thursday’s opinions

Indiana Court of Appeals
Traci Nelson v. Tony Nelson
41A01-1309-DR-424
Domestic relation. Affirms order denying Traci Nelson’s motion to relocate and modifying custody of her child in favor of father Tony Nelson. Finds mother’s reasons for relocation were legitimate and in good faith and that the conclusion that the Relocation Statute factors disfavored relocation and merited a change in custody to father was not clearly erroneous.

Terry Weisheit Rental Properties, LLC v. David Grace, LLC and Dance Central Academy, LLC

19A05-1310-PL-488
Civil plenary. Reverses judgment finding the existence of a prescriptive easement permitting Grace and the dance academy use of portions of land used by Weisheit for ingress and egress from Grace’s property. The trial court erred in construing the provision of the plaintiffs’ deed.

Lindsay Washmuth and Kristopher Washmuth v. Johnny Wiles and Amy Wiles
48A04-1310-SC-515
Small claims. Reverses judgment in favor of the tenants, Johnny and Amy Wiles. The small claims court erred when it determined that the Washmuths’ notice to the tenants was untimely. Remands for calculation of the amount of damages incurred by the landlords and the amount of security deposit, if any, that should be returned to the tenants.

James R. Sapp v. Flagstar Bank, FSB
49A02-1311-PL-935
Civil plenary. Affirms the trial court properly determined that FSB could issue a charge back to Sapp’s account in accordance with the agreement and Uniform Commercial Code. The trial court correctly found Sapp personally liable for the amount of the check that had been lost. Affirms the amount of attorney fees that the trial court awarded to FSB and remands to decide the amount of appellate attorney fees to which FSB may be entitled.

Rebecca Roberts v. State of Indiana (NFP)
03A01-1311-CR-498
Criminal. Affirms decision ordering Roberts to serve the entire previously suspended sentence following her probation violation.

Thomas Schultheis v. State of Indiana (NFP)
60A04-1311-CR-582
Criminal. Affirms conviction of Class D felony intimidation of a law enforcement officer.

E. Rodney Lewis Blair v. State of Indiana (NFP)
45A03-1311-CR-432
Criminal. Affirms denial of motion to withdraw guilty plea to Class B felony dealing in cocaine.

Desmond McGee v. State of Indiana (NFP)
49A05-1311-CR-555
Criminal. Affirms conviction of Class B misdemeanor battery.

Garry D. Jackson v. State of Indiana (NFP)
39A01-1310-CR-457
Criminal. Affirms conviction of Class A misdemeanor driving while intoxicated, finding Jackson is a habitual offender, and four-year prison sentence.

L.P. Richardson v. Eric Armstrong, Jonathon Postell, Tyrone Postell, Lambert Barnes (NFP)
49A02-1309-PL-826
Civil plenary. Affirms dismissal of Richardson’s complaint and award of attorney fees and court costs to Armstrong.

Shawn P. English v. State of Indiana (NFP)
02A03-1311-CR-457
Criminal. Affirms convictions of Class D felony resisting law enforcement and Class D felony battery.

Rick Whipple v. State of Indiana (NFP)
29A02-1312-CR-1000
Criminal. Affirms conviction of Class A misdemeanor possession of paraphernalia.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline Thursday. The 7th Circuit Court of Appeals posted no Indiana opinions by IL deadline.
 

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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