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High court grants 6 transfers

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The Indiana Supreme Court granted transfer today to decide whether casinos can ban card counters. The high court also granted transfer to five cases Thursday, including a case of first impression regarding post-retirement health-insurance premiums.

In Thomas P. Donovan v. Grand Victoria Casino & Resort, No. 49S02-1003-CV-124, the Indiana Court of Appeals reversed summary judgment for the casino in Thomas Donovan's suit challenging his ban from the casino. The appellate court granted Donovan summary judgment on his request for declaratory judgment that the casino can't exclude him from playing blackjack because of his card counting. The Indiana Gaming Commission hasn't enacted a provision that bans card counting, and Grand Victoria can't simply take refuge in the common law right of exclusion, ruled the appellate court.

In Anne M. Bingley v. Charles B. Bingley, No. 02S03-1002-CV-122, the Court of Appeals ruled for the first time that post-retirement health-insurance premiums paid by a former employer aren't a marital asset subject to a division. The trial court didn't include Charles Bingley's employer-paid, post-retirement health-insurance premiums when dividing the couple's assets during the dissolution process.

Anne Bingley argued the payments fall under subsection 2 of Indiana Code Section 31-9-2-98(b), as a retirement benefit not forfeited upon the termination of employment, and cited several Indiana cases that found pension benefits to be marital assets. But the Court of Appeals ruled the premiums weren't a marital asset subject to division. The cases Anne cited involved monthly monetary payments made directly to the pension-holding spouse; Charles' benefit wasn't payable to him but was non-elective and couldn't be divided or transferred, wrote Judge Elaine Brown.

In his concurring opinion, Judge Terry Crone encouraged the Indiana General Assembly to address a perceived ambiguity in the definition of "retirement benefits" and "vested" in terms of the Internal Revenue Code.

In Indiana High School Athletic Association v. Jasmine S. Watson, No. 71S03-1002-CV-119, a majority on the Court of Appeals affirmed the trial court's finding that the Indiana High School Athletic Association acted arbitrarily and capriciously when it ruled Jasmine Watson was ineligible to play basketball at a high school she transferred to just before her senior year. The majority also upheld an injunction placed by the trial court to prevent the IHSAA from enforcing the decision.

Watson's family claimed the transfer was caused by her mother's work hours being cut, the impending foreclosure of their home, and extended family living in South Bend.

Even though Watson has since graduated, the Court of Appeals took the case because if they found she was ineligible, it could force the high school to forfeit wins or awards. Even taking into account the IHSAA evidence that Watson and her mother had spoken about transferring prior to her mother's work hours being cut, the majority focused on the family's financial situation as the primary reason they moved to South Bend.

Judge Ezra Friedlander dissented because he thought the evidence supported the finding Watson was ineligible to play her senior year.

The justices granted transfer to In the Matter of the Estate of Harry L. Rickert, No. 18S04-1002-CV-118, in which one Court of Appeals judge believed In Re Estate of Banko, 622 N.E.2d 476, 480 (Ind. 1993), was binding, causing his dissent. Judge Michael Barnes disagreed with the majority that Banko doesn't apply to Rickert. He urged the high court to reconsider Banko's breadth given that an unscrupulous caregiver could take advantage of someone and get joint tenancy of accounts.

Carole Baker, as personal representative and beneficiary, argued the accounts opened by Harry Rickert's caretaker should be considered property of the estate. The trial court ruled the accounts presumptively belong to caregiver Keta Taylor unless the estate could prove "a different intention" on Rickert's part when they were created. The majority reversed and remanded for further proceedings because Rickert couldn't have had any intention regarding the ownership of the accounts at his death because he was allegedly incompetent in the last few years of his life when the accounts were made. The majority also held Banko doesn't require application of the Non-Probate Transfer Act statutory presumption in favor of Taylor as payable on death beneficiary or joint account holder under the facts of the case.

In U.S. Bank N.A. v. Integrity Land Title Corp., No. 17S03-1002-CV-120, the appellate court reversed the trial court's denial of U.S. Bank's motion to correct error and motion for relief from judgment in its contract claim against Integrity. There was a genuine issue of material fact whether Integrity contracted as a principal or an agent and whether Integrity breached the contract. Later on rehearing, a majority of COA judges allowed the parties to raise arguments for the first time in a response to a hearing before the appellate court. In response to U.S. Bank's petition for rehearing, Integrity raised new issues. Judge Melissa May dissented, finding the court's rules don't allow Integrity to raise the new argument and allowing it to do so effectively deprived U.S. Bank of an opportunity to respond.

In Christine Dugan v. Mittal Steel USA Inc., and Jay Komorowski, No. 45S05-1002-CV-121, the appellate court affirmed summary judgment for Mittal and Jay Komorowski as to the statements described in Paragraph 6 of Dugan's complaint for defamation. Dugan was fired from Mittal following an investigation of an alleged theft ring in the department where she worked. The judges reversed summary judgment in favor of Mittal and Komorowski as to Paragraph 7 of Dugan's complaint and remanded for further proceedings on that portion of her defamation claim. Mittal failed to establish as a matter of law that the statement is protected by the common interest privilege.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. 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)

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