Opinions

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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Opinions Sept. 22, 2010

September 22, 2010
Indiana Supreme Court
Rosalyn West v. Betty Wadlington,et al.
49S02-1009-CV-509
Civil. Reverses trial court’s grant of Larkin and the Indianapolis Metropolitan Police Department’s motions to dismiss West’s defamation and invasion of privacy claims for lack of subject matter jurisdiction. Holds that a trial court with general jurisdiction to adjudicate claims of defamation and invasion of privacy is not ousted of jurisdiction merely because a religious defense to the claims is asserted. Remands for further proceedings.
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Opinions Sept. 21, 2010

September 21, 2010
Indiana Supreme Court
Max Koenig v. State of Indiana
42S04-1009-CR-505
Criminal. Affirms conviction of dealing in a schedule II controlled substance as a Class B felony. The admission of the laboratory report without letting Koenig confront the person who created it was harmless beyond a reasonable doubt under Chapman v. California.
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Opinions Sept. 20, 2010

September 20, 2010
Indiana Court of Appeals
Obed Kalwitz, Jr., et al. v. Eugene Kalwitz, et al.
46A03-0912-CV-574
Civil. Affirms small claims judgment in favor of siblings Eugene Kalwitz and Sharon Greiger in Obed Kalwitz Jr.’s suit alleging the siblings stole items from land that now belong to the siblings. Affirms ruling on counterclaim for $1,750 compensatory damages for abuse of process, $2,750 in punitive damages, and $900 in attorney’s fees. Obed and Rolene’s request for a change of judge was untimely, and their claim is barred by res judicata. Remands to the small claims court for a determination of the amount of appellate attorney’s fees and costs to which Eugene and Sharon are entitled.
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Opinions Sept. 17, 2010

September 17, 2010
Indiana Supreme Court
In the Matter of Kenneth E. Lauter
55S00-0906-DI-267
Discipline. A per curiam decision publicly reprimands attorney Kenneth E. Lauter of Morgan County because he didn’t indicate to the client what the additional retainer should be or how it would be determined, thus violating Indiana Professional Conduct Rules 1.5 (b) and (c).
Justices Brent Dickson and Robert Rucker dissented, believing that the Indiana Supreme Court Disciplinary Commission did not prove a charged violation by clear and convincing evidence and that the hearing officer correctly found no violation and recommended a finding in favor of Lauter.
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Opinions Sept. 16, 2010

September 16, 2010
Indiana Supreme Court

Foundations of East Chicago, Inc., Successor by Merger to East Chicago Community Development Foundation, Inc. and Twin City Education Foundation, Inc. v. City of East Chicago
No. 49S02-0908-CV-00383
Civil. Justices granted a rehearing petition, holding that the city didn’t follow Indiana Appellate Rule 65(E) and was premature in filing a motion at the trial court level before a previous appellate ruling was certified. Justices found the trial court correctly denied the city’s request, and it kept intact its original opinion from May.

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Opinions Sept. 15, 2010

September 15, 2010
Indiana Court of Appeals
Alexander Gatzimos, M.D. v. Boone County and State of Indiana
06A05-0911-CV-664
Civil. Grants the state’s motion to dismiss Dr. Gatzimos’ appeal of the trial court order denying his petition for expungement. Remands to the trial court to allow Gatzimos the opportunity to present admissible evidence as to whether his charges were dismissed because of mistaken identity; no offense was actually committed; or there was an absence of probable cause.
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Opinions Sept. 14, 2010

September 14, 2010

Indiana Court of Appeals
Gerald L. Wilkerson v. State of Indiana
26A01-0909-CR-457
Criminal. Affirms trial court’s denial of motion to suppress. Compliance with the Pirtle requirement (Pirtle v. State, 323 N.E.2d 634 (Ind. 1975)) was unnecessary and consent to pat-down search was valid.

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Opinions Sept. 13, 2010

September 13, 2010


Indiana Court of Appeals
Kevin Moncrief v. State of Indiana (NFP)
49A05-1004-PC-245
Post conviction. Affirms denial of petition for post-conviction relief.

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Opinions Sept. 10, 2010

September 10, 2010
7th Circuit Court of Appeals
Joseph Finch, David E. Hensley, and Peter W. Mungovan v. Bart Peterson, individually and in his official capacity, et al.
09-2676
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Debra McVicker Lynch.
Civil. Affirms denial of the city officials’ motion for judgment on the pleadings in a suit filed by three white officers alleging discrimination in promotions. The 1978 consent decree between the Indianapolis Police Department and the U.S. Department of Justice does not operate to confer qualified immunity on city officials who were involved in making the challenged promotions. Nothing in the decree required them to take race into consideration when making promotions.
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Opinions Sept. 9, 2010

September 9, 2010
Indiana Supreme Court
Matter of the Estate of Harry L. Rickert
18S04-1002-CV-118
Civil. Reverses judgment in favor of Taylor, who was Rickert’s power of attorney, that she receive the money from accounts in which she was a joint holder. The presumption is that Taylor’s use of her power of attorney to benefit herself made those accounts invalid, and she failed to overcome that presumption to allow her to inherit the money. Remands with direction to order restoration to the estate of bank accounts owned of record by Rickert and Taylor that were created through use of Taylor’s power of attorney from Rickert and lacking any support documentation indicating participation by Rickert.
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Opinions Sept. 8, 2010

September 8, 2010
7th Circuit Court of Appeals
Letecia D. Brown v. Automotive Components Holdings, LLC and Ford Motor Co.
09-1641
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms summary judgment dismissing Brown’s FMLA claim following her termination from Ford. The undisputed facts show Brown was absent without leave after failing to give proper FMLA notice for an extension of a previously requested leave period.
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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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