Opinions

Opinions June 28, 2016

June 28, 2016
Indiana Supreme Court
In the Matter of Charles P. White
49S00-1203-DI-156
Attorney discipline. Suspends the former Indiana Secretary of State for at least two years without automatic reinstatement. Finds that Charlie White’s felony convictions of perjury, voting outside a precinct of residence and theft are violations of Indiana Professional Conduct Rules.
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Opinions June 27, 2016

June 27, 2016
Indiana Court of Appeals
BC Osaka, Inc. and City Inn, Inc. v. Kainan Investment Groups, Inc.
45A03-1510-CT-1587
Civil Tort. Reverses decision granting Kainan Investment’s cross-claim on summary judgment that BC Osaka indemnify them against a woman’s personal injury claims. Finds the lease agreement did not specify whether the indemnification extended to negligence by the landlord and the landlord controlled the parking lot where the injury happened. Remands for jury trial.
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Opinions June 24, 2016

June 24, 2016
Indiana Court of Appeals
Willis G. Heck v. State of Indiana (mem. dec.)
84A01-1601-CR-126
Criminal. Affirms Willis Heck’s five-year sentence after he pleaded guilty to Level 5 felony burglary.
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Opinions June 23, 2016

June 23, 2016
Indiana Court of Appeals
Trondo L. Humphrey v. State of Indiana
48A02-1508-PC-1238
Post conviction. Reverses and remands denial of Trondo Humphrey’s petition for post-conviction relief after the court found Humphrey’s counsel was ineffective for not objecting to the use of statement for impeachment only. Also finds that Humphrey’s appeal was not barred by laches.
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Opinions June 22, 2016

June 22, 2016
Indiana Court of Appeals
Ricky E. Arion v. State of Indiana
08A02-1508-CR-1278
Criminal. Dismisses burglary, sexual battery and criminal confinement charges against Ricky Arion. COA rules the fact that the trial court never received a return of the arrest warrant did not absolve the trial court of following Arion’s motion for a speedy trial.
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Opinions June 21, 2016

June 21, 2016
Indiana Court of Appeals
In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services
49A02-1510-JT-1711
Juvenile. Affirms termination of father’s parental rights after COA found the Americans with Disabilities Act cannot be used as a defense and the father waived his right to appeal on these grounds by not bringing up the issue at the trial court level.
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Opinions June 20, 2016

June 20, 2016
Indiana Court of Appeals
Town of Cedar Lake v. Review Board of the Indiana Department of Workforce Development, and Nicole Hoekstra (mem. dec.)
93A02-1512-EX-2165
Agency action. Affirms the Department of Workforce Development Review Board’s ruling that Nicole Hoekstra was fired without just cause.
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Opinions June 17, 2016

June 17, 2016
Indiana Court of Appeals
Richard C. Gallops and Patricia A. Gallops v. Shambaugh Kast Beck & Williams, LLP
02A03-1509-CT-1401
Civil tort. Dismisses Richard and Patricia Gallopses’ appeal of orders preceding their agreed judgment with Shambaugh Kast Beck & Williams on their legal malpractice suit because agreed judgments are not appealable.
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Opinions June 16, 2016

June 16, 2016
Indiana Supreme Court
Thomas L. Hale v. State of Indiana
35S02-1601-CR-37
Criminal. Reverses conviction of dealing in methamphetamine, holding that the trial court abused its discretion by failing to grant Hale depositions of two state witnesses at public expense. Advises trial courts denying an indigent defendant’s motion to depose state witnesses at public expense should issue findings supporting the denial.
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Opinions June 15, 2016

June 15, 2016
Indiana Court of Appeals
Northeastern Rural Electric Membership Corporation v. Wabash Valley Power Association, Inc.
49A02-1508-PL-1312
Civil plenary. Affirms summary judgment for Wabash Valley Power Association after Northeastern Rural Electric Membership Corp. challenged Wabash’s statute of limitations defense. Finds that the breach of contract would have happened in 2004, when Wabash switched regulations from state to federal and not 2008, when Wabash’s rates began to increase.
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Opinions June 14, 2016

June 14, 2016
Indiana Court of Appeals
Gregory Schafer v. Kathryne Borchert d/b/a Southlake Realty.
56A04-1507-CP-977
Civil plenary. Affirms judgment for Kathryne Borchert after Gregory Schafer appealed the judgment on Schafer’s claims that a tax sale notice was sent to him one day late when Borchert filed for a quiet title. Schafer had filed on cross-appeal to have the tax deeds set aside. The Court of Appeals found the trial court misinterpreted Trial Rule 6(A), counting the number of days between the notice and sale incorrectly.
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Opinions June 13, 2016

June 13, 2016
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday.

Matthew D. Claussen, et al. v. Michael R. Pence, Governor of the State of Indiana, et al.
16-1003
United States District Court for the Northern District of Indiana, Hammond Division, Philip P. Simon, chief judge.
Civil. Affirms Indiana Code 3-5-9-5, which states that a government employee may not also hold an elected position in the municipality they work in, does not violate the First Amendment or the Equal Protection Clause of the 14th Amendment. The 7th Circuit held that the interest Indiana has in avoiding corruption or the appearance of corruption outweighs any First Amendment violations the plaintiffs’ may suffer by not being able to serve in elected office.
 

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Opinions June 10, 2016

June 10, 2016
Indiana Court of Appeals
Timothy A. Williamson v. U.S. Bank National Association
49A05-1506-MF-521
Mortgage foreclosure. Affirms summary judgment for U.S. Bank after the court found a mistake in making the deed for the property didn’t mean Timothy Williamson did not own the property at the time of a modification agreement. Williamson’s name was not on the deed after it was accidentally included in the sheriff’s sale and sold to the bank but the bank rectified the issue.
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Opinions June 9, 2016

June 9, 2016
Indiana Court of Appeals
Edwin Guzman v. State of Indiana (mem. dec.)
20A05-1509-CR-1548
Criminal. Affirms denial of Edwin Guzman’s motion to correct error following his conviction as a habitual traffic offender, a Level 6 felony.
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Opinions June 8, 2016

June 8, 2016
7th Circuit Court of Appeals
Anastazia Schmid v. Steven McCauley, superintendent, Indiana Women’s Prison
14-2974
United States District Court for the Southern District of Indiana, Indianapolis Division, William T. Lawrence, judge.
Civil. Rules mentally ill woman appealing her murder conviction and sentence should have had an attorney appointed to her in District Court. Remands for court to appoint her one, as well as hold a possible evidentiary hearing.  
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Opinions June 7, 2016

June 7, 2016
Indiana Court of Appeals
Otter Creek Trading Company Inc. and Daniel Pohle v. PCM Enviro PTY, LTD.
40A01-1509-MI-1432
Miscellaneous. Affirms $147,000 default judgment for PCM after COA found the trial court did not abuse its discretion when it ruled Otter Creek’s reply to the complaint was too short after PCM sued for breach of contract because Otter Creek did not send a smelter PCM paid for. Also finds it didn’t matter that PCM did not have a certificate of authority and was not a full business, Otter Creek still needed to fulfill its contractual obligations.
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Opinions June 3, 2016

June 3, 2016
Indiana Tax Court
John and Sylvia Von Ermannsdorff v. Indiana Department of State Revenue
49T10-1112-TA-93
Tax. Denies the Department of State Revenue’s motion for summary judgment with respect to whether the von Erdmannsdorffs rebutted the presumption of correctness afforded to the department’s best information available assessments. Grants the von Erdmannsdorffs’ counter-motion for partial summary judgment with respect to whether the department erred in calculating their adjusted gross income by combining the gross receipts but failing to account for the additional business expense deductions.
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Opinions June 2, 2016

June 2, 2016
Indiana Court of Appeals
Tahj R. Thomas v. State of Indiana (mem. dec.)
02A04-1511-CR-2069
Criminal. Affirms Tahj R. Thomas’ aggregate eight-year sentence after he pleaded guilty to rape and criminal deviate conduct as Class A felonies.
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Opinions June 1, 2016

June 1, 2016
Indiana Supreme Court
David  P. Allen v. Kimberly W. Allen
13S01-1601-DR-00053
Domestic relations. Rules that divorced parents without an agreement to pay college expenses do not have to pay their children’s graduate or professional school expenses. Postsecondary in Indiana Code 31-16-6-2 means a technical or undergraduate school.
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Opinions May 31, 2016

May 31, 2016
Indiana Court of Appeals
Tracy K. Barber v. Amy Henry
87A01-1510-JP-1639
Juvenile. Affirms calculation of weekly child support owed by father after imputing just minimum wage to mother. The record shows mother, who is a doctor, is unemployed with just cause based on the special needs of her sons.  Reverses the order with respect to the civil attorney fees father is ordered to pay in his son’s juvenile case and remands with instructions to determine which part of the total amount claimed can be attributed to the protective order petition.
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Opinions May 27, 2016

May 27, 2016
Indiana Court of Appeals
J.B. v. State of Indiana
49A02-1509-JV-1372
Juvenile. Rules a trial court cannot order a juvenile to pay restitution as a civil judgment after the court ordered $1,250 in fees for breaking probation in four causes. The order was rescinded so the matter was moot, but the court ruled on the case for public interest.
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Opinions May 26, 2016

May 26, 2016
Indiana Court of Appeals
John Doe #1, et al. v. Indiana Department of Child Services
49A02-1506-CT-682
Civil tort. Reverses and remands summary judgment in favor of Indiana Department of Child Services after court found in a 2-1 decision DCS had the duty under common law to protect the identity of a caller who reported children as being in need of services. Chief Judge Nancy Vaidik dissents, noting she doesn’t think the code which DCS broke by identifying him supplies a private right of action.  
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Opinions May 25, 2016

May 25, 2016
Indiana Court of Appeals
Kelly C. Mullen v. State of Indiana
02A05-1511-CR-1959
Criminal. Affirms on interlocutory appeal the denial of Kelly C. Mullen’s motion to suppress evidence of a gun obtained during a search of his person. Rules that the officer who stopped him had sufficient reason, including the increased drug and gun violence in the area, the fact the apartment complex asked the police department to help with loitering issues, and Mullen’s actions during the stop.
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Opinions May 24, 2016

May 24, 2016
Indiana Court of Appeals
Tresa Megenity v. David Dunn
22A04-1506-CT-722
Civil tort. Reverses and remands summary judgment for David Dunn after the majority ruled Dunn’s kick while Tresa Megenity was holding a bag during a karate drill constituted an issue of material fact. The COA ruled the type of kick Dunn did may not have been normal activity for the drill the two were involved in at the time. Judge Patricia Riley dissented, saying the majority ruled too narrowly. She thought the kick was normal behavior in the sport of karate itself and would have ruled to uphold summary judgment.
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Opinions May 23, 2016

May 23, 2016
Indiana Court of Appeals
Douglas Costella and Profit Search Inc. v. Gersh Zavodnik
49A04-1504-PL-163.
Civil plenary. Reverses and remands summary judgment for Gersh Zavodnik for $30,044.07 after Court of Appeals ruled Zavodnik abused Trial Court Rule 36(B) which governs the withdrawal of admissions, using it for his own gain. Remands for trial court to determine whether case should be dismissed because of Trial Rule 41(E) which provides for dismissal when a plaintiff does not diligently prosecute a case or comply with court rules.
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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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