Court opinions

County must pay for parent's appointed attorneyRestricted Content

August 7, 2009
Jennifer Nelson
Noting a paradigm shift in parental rights termination cases due to House Enrolled Act 1001, one Indiana Court of Appeals judge believed the Department of Child Services instead of the counties should be responsible for the costs of appointed counsel in these types of proceedings.
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COA: physical condition, injury equal one injury

August 6, 2009
Michael Hoskins
The Indiana Court of Appeals isn't convinced it needs to address the issue of pre-existing, non-work related physical conditions as it relates to a pizzeria cook's worker compensation case.
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Couple should be allowed truck title

August 5, 2009
Jennifer Nelson
The Indiana Court of Appeals affirmed summary judgment in favor of a couple in a vehicle title dispute, ruling the pair should be allowed to take the title free of an auto auction's security interest in the truck.
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Insurer must provide underinsured coverage

August 4, 2009
Jennifer Nelson
An insurance policy that doesn't provide uninsured or underinsured motorist coverage to all insureds is contrary to public policy based on Indiana statute, affirmed the Indiana Court of Appeals.
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COA: Trial delays not defendant's fault

August 4, 2009
Jennifer Nelson
The Indiana Court of Appeals reversed the denial of a motion for discharge pursuant to Criminal Rule 4(C) because the court incorrectly attributed delays to the defendant.
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Police officer not entitled to qualified immunity

August 3, 2009
Jennifer Nelson
The 7th Circuit Court of Appeals affirmed a police officer isn't entitled to qualified immunity in a suit claiming excessive force because the officer didn't have a reason to point a submachine gun at the plaintiffs during the execution of a search warrant.
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COA reverses one dismissal of inmate's suit

August 3, 2009
Jennifer Nelson
The New Castle inmate with a history of filing frivolous lawsuits got a minor victory in the Indiana Court of Appeals today. The judges reinstated his complaint against the only person who presided over the inmate's disciplinary hearing for a Department of Correction rule violation for filing a frivolous claim.
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Court: Murderer not eligible for parole

July 31, 2009
Jennifer Nelson
The Indiana Supreme Court ruled that a man serving two life sentences for his 1975 murder convictions isn't eligible to seek parole under the laws in effect at the time the murders took place, but could seek clemency though the Indiana Parole Board.
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District Court erred in drug sentence

July 31, 2009
Jennifer Nelson
The 7th Circuit Court of Appeals vacated a man's sentence for conspiracy to distribute methamphetamine because the District Court failed to figure out the quantity of the drug reasonably attributable to the defendant.
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COA: University should get summary judgment

July 30, 2009
Jennifer Nelson
The Indiana Court of Appeals ruled in favor of the trustees of Indiana University, finding the trial court erred when it denied summary judgment for the school and concluded a provision in an agreement between the school and a fired professor was ambiguous.
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COA reverses small claims judgment

July 29, 2009
Jennifer NelsonMore

Court failed to include all assets in marital pot

July 29, 2009
Jennifer Nelson
For the second time in the same case, the Indiana Court of Appeals reversed a trial court's division of assets in a marital dissolution because the trial court excluded from the marital pot the property the parties brought into marriage.
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Court: Suit doesn't belong in federal courtRestricted Content

July 28, 2009
Jennifer Nelson
In a ruling that could impact pending litigation involving Indiana Protection and Advocacy Services, the 7th Circuit Court of Appeals decided the agency doesn't have standing to bring suits in federal court.
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Judge awards $42 million in back pay suit

July 28, 2009
Michael Hoskins
A Marion Superior judge is awarding more than $42.4 million to a class of thousands of former state employees who sued to recover back pay for unequal wages earned between 1973 and 1993.
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Apartment creates issue of first impression

July 27, 2009
Jennifer Nelson
In an issue of first impression, the Indiana Tax Court decided housing owned by a non-profit that receives governmental subsidies to rent to low- and moderate-income people at below-market rates is not property used for a charitable purpose.
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COA rules on coal bed gas dispute

July 24, 2009
Jennifer Nelson
In settling a dispute between two Illinois companies regarding who has the legal right to recover coal bed methane gas, the Indiana Court of Appeals made its decision based on public safety and ruled in favor of the company assigned the coal bed gas lease.
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COA splits in application of statute in med-mal suit

July 23, 2009
Jennifer Nelson
The issue of whether the Journey's Account Statute applied to a woman's medical malpractice claim filed after the statute of limitations expired caused a split of an Indiana Court of Appeals panel.
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Judges disagree in police entry case

July 23, 2009
Jennifer NelsonMore

Court rules on suspended sentence issue

July 23, 2009
Jennifer Nelson
A panel of Indiana Court of Appeals judges ruled on an issue that has generated a split of opinion among them: whether a fully executed sentence is equivalent to a sentence of equal length but partially suspended to probation for purposes of review under Appellate Rule 7(B).
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COA declines ruling on constitutionality of plan

July 22, 2009
Jennifer Nelson
The Indiana Court of Appeals declined to address the constitutionality of a Department of Correction program for sex offenders based on the deficient record before it and because the appellate court could decide the case without ruling on the constitutionality of the program.
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Alarm company's actions not covered by policies

July 21, 2009
Jennifer Nelson
The Indiana Supreme Court reversed the denial of summary judgment on an insurance company's coverage defenses, ruling its insured's actions leading to a lawsuit were "errors or omissions," and so weren't covered by the commercial general liability or umbrella policies.
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Statute doesn't authorize dismissal of charges

July 21, 2009
Jennifer Nelson
Even if the Indiana Court of Appeals concluded the trial court violated statute by failing to set a juvenile delinquency hearing within the 60-day time limit, the appellate court doesn't believe the statute authorizes dismissal of the charges as the defendant argues.
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Judges differ on allowance of trustee's appeal

July 20, 2009
Jennifer Nelson
Judges on the 7th Circuit Court of Appeals, including Northern District Judge Joseph Van Bokkelen - who was sitting in designation - disagreed whether a bankruptcy trustee's appeal should be dismissed for lack of appellate jurisdiction because he didn't file a petition for permission to appeal.
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COA: Only deceased's parent can have visitation

July 20, 2009
Jennifer Nelson
A paternal grandmother whose son was convicted of manslaughter in the death of his child's mother doesn't have standing to petition for visitation with her grandchild under the Grandparent Visitation Act, the Indiana Court of Appeals ruled today.
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Judges: Court should have questioned jurors

July 15, 2009
Jennifer Nelson
Judges on the Indiana Court of Appeals disagreed as to whether a man's murder conviction should be overturned because the trial court failed to investigate the impact of threats made against the jury. The majority determined the lack of action by the trial court resulted in a fundamental error that required reversing the conviction, but that he could be retried.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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