Opinions

Opinions Oct. 27, 2010

October 27, 2010
7th Circuit Court of Appeals
James L. Parkey v. Jason E. Sample
09-3966
U.S. District Court, Northern District of Indiana, South Bend Division, Judge William C. Lee
Civil. Affirms District Court’s grant of Indiana State Trooper Jason Sample’s motion for summary judgment, which found James Parkey, who sued under 42 U.S.C. § 1983, had not brought forth any evidence to demonstrate a lack of probable cause. Parkey claimed Sample had violated his rights under the Fourth Amendment by searching his home and seizing his property without probable cause. Suspecting Parkey had a marijuana grow operation, Sample did two trash pulls near Parkey’s residence where Sample found marijuana cigarettes and stems from marijuana plants, evidence he presented to a Lake County Superior magistrate, who issued a search warrant for Parkey’s home.
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Opinions Oct. 26, 2010

October 26, 2010
Indiana Court of Appeals
Allstate Insurance Company v. Timothy Clancy, et al.
45A03-0910-CV-498
Civil. Reverses trial court’s order granting a motion to compel the production of documents. In its interlocutory appeal, Allstate Insurance Company raised the following issue: whether the trial court abused its discretion by compelling production of documents subject to the attorney-client privilege on the ground that Allstate has implicitly raised an advice of counsel defense, thereby waiving the attorney-client privilege.
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Opinions Oct. 25, 2010

October 25, 2010
Indiana Court of Appeals
Alesa Pack v. Indiana Family and Social Services Administration
89A05-1004-PL-240
Civil plenary. Reverses denial of Medicaid benefits. The administrative law judge’s decision is defective for failing to consider the totality of the evidence provided and in its presentation of and engagement with the findings of basic fact when applying the law to reach a finding of ultimate fact that Pack’s health conditions didn’t substantially impair her ability to work. Remands to the ALJ for further proceedings.
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Opinions Oct. 22, 2010

October 22, 2010
Indiana Court of Appeals
Belle City Amusements, Inc. v. Doorway Promotions, Inc.
35A05-0912-CV-711
Civil. Reverses award of damages for lost profits for the years 2010 through 2013 in the amount of $17,500 for each year to Doorway after Belle City cancelled its agreement with the company to provide rides and concessions for a festival. The damages were not a foreseeable consequence of the breach of the agreement between Belle City and Doorway and Indiana doesn’t allow for recovery for perceived loss of reputation or goodwill in an action for breach of contract. Affirms $24,000 award to Doorway for the 2009 rent of the Coliseum to house the festival. Remands for further proceedings.
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Opinions Oct. 21, 2010

October 21, 2010
Indiana Court of Appeals
Brenda Moore v. State of Indiana
49A04-1001-CR-46
Criminal. Reverses conviction of Class B misdemeanor public intoxication. Under the circumstances, Moore was not in a public place and therefore the evidence is insufficient to support a conviction of public intoxication. Judge Vaidik dissents.
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Opinions Oct. 20, 2010

October 20, 2010
Indiana Court of Appeals
J.B. v. E.B.
34A04-1002-DR-110
Domestic relation. Reverses trial court decision to exclude son’s counseling records at a custody modification hearing. The instant case is a proceeding within the purview of Indiana Code Section 31-32-11-1 and the counselor/client privilege does not apply. Remands for further proceedings. 
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Opinions Oct. 19, 2010

October 19, 2010
Indiana Court of Appeals
Carla Johnson and Michael Johnson v. State of Indiana (NFP)
49A05-0911-CR-651
Criminal. Affirms Carla’s convictions of Class B felonies neglect of a dependent and battery, and affirms Michael’s conviction of Class B felony neglect.
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Opinions Oct. 18, 2010

October 18, 2010
7th Circuit Court of Appeals
Tom George, et al. v. National Collegiate Athletic Association
09-3667
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Vacates opinion reversing District Court’s dismissal of claims with prejudice, stays the appeal, and certifies three questions to the Indiana Supreme Court: Do the plaintiffs’ allegations about the NCAA’s method for allocating scarce tickets to championship tournaments describe a lottery that would be unlawful under Indiana law? If the plaintiffs’ allegations describe an unlawful lottery, would the NCAA’s method for allocating tickets fall within the Ind. Code Section 35-45-5-1(d) exception for “bona fide business transactions that are valid under the law of contracts”? If the plaintiffs’ allegations describe an unlawful lottery, do plaintiffs’ allegations show that their claims are subject to an in pari delecto defense as described in Lesher v. Baltimore Football Club and Swain v. Bussell?
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Opinions Oct. 15, 2010

October 15, 2010
Indiana Court of Appeals
Southlake Community Mental Health Center, Inc., et al. v. Board of Zoning Appeals of the City of Crown Point, Indiana, et al.
45A03-1002-MI-81
Miscellaneous. Reverses determination that the Board of Zoning Appeals of the City of Crown Point correctly concluded that Southlake and Watertower South’s proposed use of a certain parcel was inappropriate for the parcel’s zoning classification. The original appeal of the Crown Point Plan Commission’s decision by Feather Rock Professional Office Park was untimely. Remands with instructions to grant Southlake and Watertower’s certiorari petition.
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Opinions Oct. 14, 2010

October 14, 2010

Indiana Court of Appeals
Town of Culver Board of Zoning Appeals v. Roderick J. Ratcliff and Pamela A. Ratcliff
50A03-1004-MI-179
Miscellaneous. Affirms judgment in favor of the Ratcliffs on their petition for writ of certiorari from an adverse decision of the Board of Zoning Appeals. The storage sheds on a landscaped gravel lot supplied with electricity aren’t considered “structures” within the definition of Culver’s zoning ordinances.
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Opinions Oct. 13, 2010

October 13, 2010

7th Circuit Court of Appeals
United States of America v. Cruz Saenz
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms conviction of conspiring to distribute more than 5 kilograms of cocaine but vacates his 293-month sentence. Rejects Saenz’s speedy trial challenge because nearly all of the delay is attributable to requests by Saenz or his co-defendants and the court didn’t error in imposing an obstruction of justice enhancement by concluding Saenz willfully lied about whether he knew the money he was transporting was drug money. Remands for the District Court to reconsider whether Saenz should receive the minor role adjustment as there is no evidence in the record of his involvement in a conspiracy beyond the single transport of money.

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Opinions Oct. 12, 2010

October 12, 2010
7th Circuit Court of Appeals
United States of America and State of New York, et al. v. Cinergy Corp., et al.
No. 1:99-CV-1693
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses District Court ruling in the government’s favor regarding modifications involving sulphur dioxide emissions because Cinergy met the standard that was authorized by a state plan the Environmental Protection Agency approved. Finds the District Court should not have admitted evidence by the EPA’s expert witnesses. Rules that without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution. Dismisses cross-appeal.
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Opinions Oct. 11, 2010

October 11, 2010
The Indiana Supreme Court, Court of Appeals, and Tax Court were closed today in observance of Columbus Day.
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Opinions Oct. 8, 2010

October 8, 2010
Indiana Court of Appeals
Richmond State Hospital, et al. v. Paula Brattain, et al.
49A02-0908-CV-718
Civil. Reverses finding that the merit employees, represented by Veregge and Strong, are entitled to 20 years of back pay and remands with instructions to recalculate the merit employees’ back pay based on the time period beginning 10 days before the July 29, 1993, complaint was filed and ending when the state abolished the split class system. Instructs the trial court to determine whether the state abolished the split class system on Sept. 12 or Sept. 19, 1993. Affirms in all other respects.
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Opinions Oct. 7, 2010

October 7, 2010
Indiana Court of Appeals
Dorris Merriweather III v. State of Indiana (NFP)
02A04-0912-CR-691
Criminal. Affirms conviction of Class A felony child molesting and Class C felony child molesting.
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Opinions Oct. 6, 2010

October 6, 2010
Indiana Court of Appeals
Charles J. Kennedy v. State of Indiana
89A04-0907-CR-380
Criminal. Affirms conviction of and 27-year sentence for Class A felony robbery and Class A felony conspiracy to commit robbery. Rules the trial court properly admitted DNA evidence and properly allowed testimony of a witness not discovered until mid-trial. Also rules sentence is appropriate.
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Opinions Oct. 5. 2010

October 5, 2010
Indiana Supreme Court
Wayne D. Kubsch v. State of Indiana
71S00-0708-PD-335
Post-conviction. Affirms judgment of the post-conviction court. Kubsch appeals, raising several issues for review, nine of which are waived because they were known and available at the time of Kubsch’s direct appeal and another three issues are barred because of the doctrine of res judicata. Regarding claims the prosecutor failed to disclose exculpatory evidence, rules information was not material and he failed to establish the nine requirements for obtaining a new trial due to newly discovered evidence so his Brady v. Maryland, 373 U.S. 83 (1963), claim fails. Also rules Kubsch failed to demonstrate that counsel rendered ineffective assistance.
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Opinions Oct. 4, 2010

October 4, 2010

Indiana Court of Appeals
Donald L. Pruitt v. State of Indiana
55A01-0912-CR-597
Criminal. Affirms denial of Pruitt’s motion to suppress, who was charged with operating a motor vehicle after driving privileges had been forfeited for life as a Class C felony. The lack of limiting language in Indiana Code Section 9-30-10-17 supports that Indiana Code sections 9-21-18-1 to 9-21-18-15 do not bar law enforcement officers from investigating violations in private parking lots in the absence of a contractual agreement with the property owner. Concludes the police officer had reasonable suspicion to stop Pruitt for driving without headlights.

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Opinions Oct. 1, 2010

October 1, 2010
7th Circuit Court of Appeals
Annex Books, Inc., et al. v. City of Indianapolis, Ind.
09-4156
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms preliminary injunction of ordinance requiring adult bookstores to be closed certain hours. The single article introduced by Indianapolis didn’t support its argument and the evidence of arrest data near the plaintiffs’ store appears to support the plaintiffs.
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Opinions Sept. 30, 2010

September 30, 2010
Indiana Court of Appeals
State of Indiana v. James G. Lucas
91A05-1003-CR-247
Criminal. Reverses and remands Lucas’s motion to suppress results from a Datamaster chemical breath test in jail, following two failed portable breath tests in the field. Rules a portable breath test mouthpiece is not a foreign substance that will act to invalidate the results of a Datamaster.
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Opinions Sept. 29, 2010

September 29, 2010
Indiana Supreme Court
Efren R. Diaz v. State of Indiana
20S05-0911-PC-521
Post conviction. Refusing to admit the chart on grounds of hearsay was an error. It was prepared by an expert witness of Diaz on the misinterpretations between what the court said in English and what the translator told Diaz in Spanish, and the witness’ expertise was hindered by its exclusion. The evidence before the post-conviction court doesn’t reveal whether Diaz was provided with accurate interpreting. Directs the trial court to commission its own translation of the plea hearing and the sentencing hearing to rehear such evidence to answer whether Diaz’s plea was voluntary and intelligent.
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Opinions Sept. 28, 2010

September 28, 2010
Indiana Court of Appeals
Sarah Haag, et al. v. Mark Castro, The Indiana Youth Soccer Association, et al.
29A04-1001-CT-10
Civil. Affirms summary judgment in favor of Virginia Surety Co. Members of the Carmel Commotion Soccer Team traveled to Colorado for a soccer tournament. While in Colorado, the team decided to go on a white-water rafting trip as a team-building activity. While traveling to raft, the van collided with another vehicle and team members were injured. Virginia Surety argued that while the team was sanctioned to attend and compete at the tournament, the use of the van to go white-water rafting was not a use “in the business of the Named Insured” and Indiana Youth Soccer Association did not have knowledge of or authorize the rafting activity. Judge Riley dissents.
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Opinions Sept. 27, 2010

September 27, 2010
Indiana Court of Appeals
Brian P. White v. State of Indiana (NFP)
53A01-0910-CR-515
Criminal. Affirms conviction of and sentence for murder.
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Opinions Sept. 24, 2010

September 24, 2010
Indiana Court of Appeals
Subpoena to Crisis Connection, Inc., State of Indiana v. Ronald Keith Fromme
19A05-0910-CR-602
Criminal. Grants rehearing for clarification and affirms original decision outlining the threshold a defendant must make before obtaining an in camera review of records that are privileged.
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Opinions Sept. 23, 2010

September 23, 2010
Indiana Court of Appeals
Commitment of A.L.
49A02-1001-MH-76
Mental health. Affirms order of temporary commitment. Any error in the admission of evidence or consideration of Wishard’s argument as to A.L.’s dangerousness was not a blatant violation of fundamental fairness and didn’t cause substantial and apparent harm to her.
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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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