Opinions

Opinions Dec. 6, 2016

December 6, 2016
7th Circuit Court of Appeals
Gillian Berger, et al. v. National Collegiate Athletic Association, et al.
16-1558
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms district court decision to grant the appellees’ motion to dismiss, holding that student-athletes are not employees and are not entitled to a minimum wage under the Fair Labor Standards Act. Judge David Hamilton concurs with separate opinion.
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Opinions Dec. 5, 2016

December 5, 2016
Indiana Court of Appeals
Andre Anderson v. State of Indiana
49A02-1511-CR-1947
Criminal. Reverses Andre Anderson’s conviction of Level 5 felony carrying a handgun without a license after he appealed the admission at trial of a handgun found pursuant to a search of his car following his arrest. Finds that the search of Anderson’s jacket was not lawful as a search incident to arrest or an inventory search and, thus, the Marion Superior Court abused its discretion when it admitted the handgun into evidence.
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Opinions Dec. 2, 2016

December 2, 2016
Indiana Court of Appeals
First American Title Insurance v. Stephen W. Robertson, Insurance Commissioner of the state of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance
49A05-1512-PL-2309
Civil plenary. Affirms the Marion Superior Court’s dismissal of First American Title Insurance Co.’s complaint against Stephen Robertson, in his official capacity as Indiana insurance commissioner. Finds that the trial court properly granted IDOI’s motion to dismiss because FATIC’s claims are barred by res judicata.
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Opinions Dec. 1, 2016

December 1, 2016
Corey Middleton v. State of Indiana
32A01-1603-PC-592
Post conviction. Affirms denial of petition for post-conviction relief. While Corey Middleton’s defense attorney used the word ‘Negro’ to describe him during voir dire, the offending language does not entitle him to post-conviction relief because of the considerable evidence against him that led to his conviction and 40-year sentence on drug and gun charges. Middleton was also not entitled to PCR when his attorney, who has since been disbarred, failed to inform him of a plea agreement that Middleton said he would have accepted or on other grounds.
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Opinions Nov. 30, 2016

November 30, 2016
Indiana Court of Appeals
Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz
58A04-1602-CT-502
Civil tort. Affirms the Ohio Circuit Court’s grant of summary judgment in favor of Property-Owners Insurance Co. and Joe’s Construction. Finds that Mark Vinup failed to establish that a genuine issue of material fact exists on the issue of whether his status was that of an employee at the time he was injured. Also finds that under the plain language of the policy, Vinup was not a temporary worker, and the trial court did not err when it granted Property-Owners’ motion for summary judgment.
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Opinions Nov. 29, 2016

November 29, 2016
Indiana Supreme Court
Mary Osborne v. State of Indiana
29S02-1608-CR-433
Criminal. Reverses trial court’s denial of Mary Osborne’s motion to suppress. Finds that although the police officer who stopped Osborne was prompted by a genuine desire to serve and protect, under the circumstances, those actions constituted an improper intrusion upon Osborne’s constitutional privileges against unreasonable search and seizure.
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Opinions Nov. 28, 2016

November 28, 2016
Indiana Tax Court
The University of Phoenix, Inc. v. Indiana Department of Revenue
49T10-1411-TA-65    
Tax. Denies the Indiana Department of State Revenue’s motion for protective order. Finds that the University of Phoenix’s request to depose Michael Alley, former department commissioner, is not vexatious.
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Opinions Nov. 23, 2016

November 23, 2016
Indiana Court of Appeals
In the Matter of the Commitment of M.E. v. Department of Veterans Affairs
27A02-1605-MH-987
Mental health. Reverses the involuntary commitment of M.E. Finds that M.E. did not receive appropriate notice, that his waiver was invalid and that Veterans Affairs did not carry its burden of proof with respect to the elements of dangerousness and grave disability. Remands with instructions to vacate the order of involuntary commitment.

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Opinions Nov. 22, 2016

November 22, 2016
Indiana Court of Appeals
C.V. v. C.R.
45A03-1606-PO-1282
Protective order. Reverses protective order issued against C.V. and remands with instructions to vacate the protective order because C.R. did not produce sufficient evidence he stalked her and that a protective order was warranted.
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Opinions Nov. 18, 2016

November 18, 2016
Indiana Court of Appeals
Jane E. Wilson, M.D., and IU Medical Group v. Tyler Lawless b/n/f Mindy R. Lawless
49A05-1511-CT-1814
Civil tort. Affirms the Marion Superior Court’s judgment in favor of Tyler Lawless on a complaint for damages filed by Tyler’s mother, Mindy Lawless, as Tyler’s next friend. Finds that Mindy Lawless’ failure to immediately bring Tyler to see a doctor after he developed flank pain did not constitute an intervening cause of Tyler’s injury.
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Opinions Nov. 17, 2016

November 17, 2016
Indiana Court of Appeals
Gabriel G. Williams v. State of Indiana
71A03-1604-CR-975
Criminal. Affirms Gabriel Williams’ conviction of Level 5 felony criminal recklessness. Finds the bullet lodged in the side of a house fired from Williams’ gun constitutes “into” the dwelling for purposes of the statute.
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Opinions Nov. 16, 2016

November 16, 2016
Indiana Supreme Court
ESPN and Paula Lavigne v. University of Notre Dame Police Department
71S05-1606-MI-359  
Miscellaneous. Affirms trial court dismisall of ESPN’s suit that sought records from the Notre Dame Police Department of incidents involving student athletes.
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Opinions Nov. 15, 2016

November 15, 2016
Indiana Court of Appeals
Marco A. Galindo v. State of Indiana
32A05-1607-CR-1541
Criminal. Affirms Marco Galindo’s conviction of felony murder. Finds that the Hendricks Circuit Court did not abuse its discretion when it refused to instruct the jury on involuntary manslaughter.
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Opinions Nov. 14, 2016

November 14, 2016
Indiana Court of Appeals
William McNeal v. State of Indiana
49A05-1604-CR-838
Criminal. Affirms William McNeal’s conviction of Level 5 felony possession of cocaine. Finds that the Marion Superior Court did not abuse its discretion by admitting evidence that McNeal claims was obtained in violation of his rights pursuant to the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.
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Opinions Nov. 10, 2016

November 10, 2016
Indiana Court of Appeals
In re the Termination of the Parent-Child Relationship of A.W. and G.S.: H.S. (Mother) v. The Indiana Department of Child Services
54A01-1604-JT-1090
Juvenile termination of parental rights. Reverses Montgomery Circuit Court’s order terminating H.S.’s rights to her children, A.W. and G.A.S. Finds that the trial court’s decision to terminate H.S.’s rights knowing she will be living with G.A.S. is incongruous with and antithetical to the finding that the conditions that resulted in the removal of A.W. and G.A.S. will not be remedied.
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Opinions Nov. 9, 2016

November 9, 2016
The following Indiana Tax Court opinion was posted after IL deadline Monday:
Indiana Department of State Revenue, Inheritance Tax Division v. The Estate of Orville J. Rauch
49T10-1207-TA-38
Tax. Affirms the Jasper Circuit Court’s order determining the inheritance liability of the Estate of Orville J. Rauch. Finds that Rauch had an in loco parentis relationship with Robert and Claudia Wandless
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Opinions Nov. 7, 2016

November 7, 2016
The following Indiana Tax Court opinion was posted after IL deadline Friday:
Monroe County Assessor v. SCP 2007-C-26-002, LLC a/k/a CVS 3195-02
49T10-1509-TA-29
Tax. Affirms Indiana Board of Tax Review’s finding that CVS’ appraisals of a Bloomington store location are more credible than the Monroe County Assessor’s assessments between 2009 and 2013. Holds that Tax Court rulings in previous similar cases were decided correctly.
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Opinions Nov. 4, 2016

November 4, 2016
Indiana Court of Appeals
Mickel Thacker v. State of Indiana
49A02-1510-CR-1563
Criminal. Affirms Mickel Thacker’s conviction of Level 6 felony auto theft and Class A misdemeanor resisting law enforcement. Finds that the evidence was sufficient to prove Thacker knowingly or intentionally exerted unauthorized control over a stolen vehicle and resisted law enforcement.
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Opinions Nov. 3, 2016

November 3, 2016
Indiana Court of Appeals
Momar, Inc. v. Watcon, Inc. (mem. dec.)
71A03-1603-PL-621
Civil plenary. Affirms St. Joseph Superior Court’s grant of a preliminary injunction enjoining Momar Inc. from aiding its employee, Michael Janowiak, in soliciting orders from customers of Watcon Inc., from accepting orders from Watcon customers whose business Momar had previously solicited with aid from Janowiak, and from using or divulging any of Watcon’s confidential information.
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Opinions Nov. 2, 2016

November 2, 2016
Indiana Court of Appeals
David McCollough v. Noblesville Schools and Jeff Bryant
29A02-1512-CT-2181
Civil tort. Affirms on interlocutory appeal the denial of summary judgment to Noblesville Schools and Jeff Bryant on ex-basketball coach David McCollough’s defamation claim. Affirms summary judgment in favor of the defendants on McCollough’s other claims of intentional infliction of emotional distress, negligence, breach of contract, and tortious interference with a contract/business relationship.
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Opinions Nov. 1, 2016

November 1, 2016
7th Circuit Court of Appeals
United States of America v. Deandre Armour
15-2170
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms Deandre Armour’s conviction for aiding and abetting using or carrying and/or brandishing a firearm during and in relation to a crime of violence but vacates the sentence on that count and remands for resentencing. Affirms the district court’s decision to sentence Armour as a career offender.
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Opinions Oct. 31, 2016

October 31, 2016
Indiana Court of Appeals
Justin S. Johnson v. State of Indiana
28A05-1602-CR-309
Criminal. Reverses Greene Superior Court decision to revoke Justin Johnson’s home detention and instead sentence him to seven years in the Department of Corrections. Remands with instructions to place Johnson in on work release.
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Opinions Oct. 28, 2016

October 28, 2016
Indiana Court of Appeals
Jennifer R. Quinn v. Daniel P. Quinn
49A02-1509-DR-1321
Domestic relation. Affirms Marion Superior Court order awarding custody of Jennifer and Daniel Quinn’s son to Daniel Quinn. Finds that the trial court did not abuse its discretion in calculating child support. Finds that the trial court abused its discretion in distributing the Quinn’s property because it did not include the value of all of the assets in the marital pot. Remands with instructions to the trial court to redistribute the Quinn’s property without a hearing.
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Opinions Oct. 27, 2016

October 27, 2016
7th Circuit Court of Appeals
Chance T. Kelham v. CSX Transportation, Inc.
16-1544
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge Andrew P. Rodovich.
Civil. Affirms jury finding in favor of CSX Transportation Inc. Finds that Chance Kelham’s back pain existed before his on-the-job fall.
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Opinions Oct. 26, 2016

October 26, 2016
Indiana Supreme Court
F. John Rogers, as Personal Representative of Paul Michalik, Deceased, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers
02S05-1603-CT-114
Civil tort. Reverses summary judgment in favor of Angela Martin on the negligence claim brought by Michalik’s estate. Affirms summary judgment in favor of Martin on the Dram Shop Act claim.
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  1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. 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.

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