Opinions

Opinions March 24, 2011

March 24, 2011
7th Circuit Court of Appeals
United States of America v. Rollie Mitchell
10-1831
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms sentence of life imprisonment for distributing cocaine base, stating the District Court properly calculated the guidelines range and did not improperly consider Mitchell’s exercise of his Sixth Amendment right to counsel.
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Opinions March 23, 2011

March 23, 2011
Indiana Court of Appeals
Troy R. Smith v. State of Indiana
35A02-1008-CR-996
Criminal. Reverses trial court’s order to revoke Smith’s probation due to non-payment of weekly child support – a condition of Smith’s probation. The state failed to prove Smith knowingly, recklessly, or intentionally failed to pay weekly child support and failed to prove Smith’s ability to pay.
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Opinions March 22, 2011

March 22, 2011
7th Circuit Court of Appeals
United States of America v. Robert B. Long and Jason P. Edwards
09-3493, 09-3636
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms Edwards’ convictions of one count of narcotics conspiracy, two counts of possession with intent to distribute marijuana, and one count of attempted possession with intent to distribute marijuana. The government’s affidavit in support of the wiretap established necessity. Affirms Long’s sentence for the same convictions, plus one additional count of possession with intent to distribute marijuana.
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Opinions March 21, 2011

March 21, 2011
Indiana Court of Appeals
Darryl Harris v. United Water Services, Inc.
93A02-1010-EX-1164
Civil. Reverses the decision by the Full Worker’s Compensation Board affirming the grant of United Water’s motion to dismiss. Harris’ deposition testimony doesn’t support the board’s finding that he admitted that his condition stemmed from a single incident and the board applied the wrong burden of proof. Remands for further proceedings.
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Opinions March 18, 2011

March 18, 2011
7th Circuit Court of Appeals
United States of America v. Dennis Jamison
10-1515
United States District Court for the Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Jamison’s conviction of possessing a sawed-off shotgun, in violation of 26 U.S.C. sections 5861(d) and 5845(a). During his trial, the district court permitted the government to elicit testimony from Jamison’s wife on cross-examination regarding Jamison’s aggressiveness. Jamison appeals his conviction, arguing that the question and his wife’s response were irrelevant, unfairly prejudicial, unduly cumulative, and lacked foundation. The government claims that the evidence demonstrated Mrs. Jamison’s bias and motive to lie.
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Opinions March 17, 2011

March 17, 2011
Indiana Court of Appeals
C.G. LLC v. Review Board of the Indiana Dept. of Workforce Devel., et al.
93A02-1004-EX-441
Civil. Reverses and remands decision by Appellee Review Board of the Indiana Department of Workforce Development that determined appellees/employees T.A., et al. were entitled to unemployment insurance benefits.
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Opinions March 16, 2011

March 16, 2011
7th Circuit Court of Appeals
Mark Siliven, et al. v. Indiana Department of Child Services, et al.
10-2701
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms District Court conclusion that Terry Suttle, director of the Wayne County DCS, and case manager Amber Luedike were entitled to summary judgment on the federal claims on qualified immunity grounds, finding the constitutional rights allegedly violated were not clearly established in January 2008. Probable cause existed to remove C.S. from his father’s custody so there was no Fourth Amendment violation. The use of state action to protect C.S. from his father was reasonable.
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Editorial - SB 590: An Arizona-style invitation for litigation

March 16, 2011
The past weeks have brought heated debate about immigration policy to our state. The Indiana General Assembly is currently considering various anti-immigrant bills. Among them is Senate Bill 590, modeled after Arizona’s immigration law. Currently being challenged in Federal District Court on constitutional grounds, Arizona’s law has invited much criticism and proved costly to the state’s economy. Indiana should not be next in line.
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Morris: Internet is the Wild West of blog posting

March 16, 2011
When you post a comment to a story on a media website, you are responsible for your words. At least that is the case at this time. Contrary to that opinion, many people think hiding behind an anonymous identity online should be a protected right.
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Limitation of liability provision enforceable

March 16, 2011
David Temple
On March 2, 2011, the federal district court in Indianapolis issued a rather innocuous and unassuming opinion in SAMS Hotel Group, LLC v. Environs, Inc. (S.D. Ind. 2011), No. 1:09-CV-00930-TWP-TAB. However, its ramifications may be far-reaching and are surely welcomed by design professionals working on projects in Indiana.
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Opinions March 15, 2011

March 15, 2011
Indiana Supreme Court
Debra L. Walker v. David M. Pullen
64S05-1101-CT-6
Civil tort. Reverses grant of Pullen’s motion to have a new trial and remands for the trial court to reinstate the original jury verdict of $10,070. The trial court judge only made general findings and not special findings as required by Indiana Trial Rule 59(J). Justice Dickson concurs in result.
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Opinions March 14, 2011

March 14, 2011

7th Circuit Court of Appeals
In Re: Gerald W. Davis Jr.; Linda Reeves v. Gerald W. Davis Jr.
10-2757
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms District Court’s affirmation of the bankruptcy court ruling that Davis’ debt owed to Reeves was dischargeable. There was no finding of fraudulent intent on Davis’ part, as is required for the application of 11 U.S.C. Section 523(a)(2) to prevent Davis’ debt to Reeves from being dischargeable. The decision in United States v. Childs forecloses a challenge to the reasonableness of the traffic stop.

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Opinions March 11, 2011

March 11, 2011
Indiana Court of Appeals
Molly C. Wilson v. Charles W. Wilson (NFP)
62A04-1004-DR-269
Domestic relation. Affirms order dissolving marriage and distributing marital property.
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Opinions March 10, 2011

March 10, 2011

Indiana Court of Appeals
Paternity of X.K.T.; J.L.H. v. B.L.T. (NFP)
67A01-1005-JP-212
Juvenile. Dismisses father’s appeal of the trial court order against him finding him in contempt for failure to pay child support.
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Opinions March 9, 2011

March 9, 2011
7th Circuit Court of Appeals
Peggy Abner and Linda Kendall v. Scott Memorial Hospital
10-2713
U.S. District Court, Southern District of Indiana, New Albany Division, Chief Judge Richard L. Young.
Civil. Denies motion to file an oversized brief and affirms summary judgment for Scott Memorial Hospital in a suit under the False Claims Act. Finds the appeal has no merit and the appellant’s attorney flagrantly violated the word limit for the brief.
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Opinions March 8, 2011

March 8, 2011
Indiana Court of Appeals
Lisa Gray v. State of Indiana
82A01-1005-CR-223
Criminal. Reverses Gray’s conviction of possession of marijuana as a Class A misdemeanor. She contended there was insufficient evidence that she constructively possessed the marijuana. Judge Cale Bradford dissents, writing that Gray was in close proximity to the marijuana and that it was in plain view, as officers had testified at trial.
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Opinions March 7, 2011

March 7, 2011
7th Circuit Court of Appeals
United States of America v. Martin Avila
09-2681
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Criminal. Affirms 365-month sentence for drug offenses following re-sentencing on remand. The District Court corrected the drug quantity attributable to Avila. The District Court did not violate the cross-appeal rule and acted within the scope of the remand.
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Opinions March 4, 2011

March 4, 2011
7th Circuit Court of Appeals
In Re: Rich Bergeron
10-3279
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Denies Bergeron’s petition for mandamus removing Judge Barker from Eppley v. Iacovelli, pending in the District Court. Bergeron is involved in that suit and was held in contempt for not removing web postings. Regarding Bergeron’s contempt proceeding, Bergeron didn’t ask the 7th Circuit to stay the proceeding in the District Court and it’s now too late to order the judge removed from the case because she’s through with it. The appearance of impropriety in this case is too attenuated to justify that extraordinary remedy.
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Opinions March 3, 2011

March 3, 2011
Indiana Court of Appeals
Indiana Association of Beverage Retailers, Inc. v. Indiana Alcohol and Tobacco Commission, et al.
49A02-1002-PL-125
Civil plenary. Affirms denial of the Indiana Association of Beverage Retailers’ motion for a preliminary injunction against the Indiana Alcohol and Tobacco Commission to enjoin the commission from issuing new beer dealer’s permits in locations in which the statutory limits on the number of beer dealer’s permits have been met or exceeded. The Commission’s interpretation of 7.1-3 is reasonable and doesn’t violate Title 7.1. The IABR also failed to show its members are likely to suffer irreparable harm if no injunction is issued.
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Opinions March 2, 2011

March 2, 2011
Indiana Court of Appeals
County Council of Porter County v. Northwest Indiana Regional Dev. Authority, et al.
37A04-1004-CT-291
Civil tort. Affirms summary judgment for the Northwest Indiana Regional Development Authority and the denial of the council’s motion for summary judgment on the council’s complaint seeking declaratory judgment it has the right to withdraw from the RDA. Porter County cannot withdraw from the RDA and the council waived its argument that the original legislation establishing the RDA Act is unconstitutional special legislation.
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Opinions March 1, 2011

March 1, 2011
Indiana Court of Appeals
Auto-Owners Insurance Company v. Gary Hughes
18A02-1006-PL-659
Civil. Reverses and remands entry of judgment in favor of appellee-plaintiff Gary Hughes on his contract claim in the amount of $166,792.83. Auto-Owners contends, inter alia, that the trial court erred in denying its summary judgment motion on the basis that Hughes’ suit was barred by a one-year limitation in the relevant insurance policy.
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Opinions Feb. 28, 2011

February 28, 2011
Indiana Court of Appeals
David E. Schalk v. State of Indiana
53A01-1005-CR-210
Criminal. Affirms conviction of Class A misdemeanor attempted possession of marijuana. Schalk arranged a drug buy to try to discredit a witness against his client. An attorney is not exempt from criminal law even if his only purpose is the defense of his client.
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Opinions Feb. 25, 2011

February 25, 2011
Indiana Court of Appeals
Brian Holtzleiter v. Angela Holtzleiter
48A02-1006-DR-736
Domestic relation. Reverses denial of Brian’s petition to modify child support. He hasn’t waived his argument that he is entitled to modification of child support under the requirement that the current support obligation was 20 percent different from what would be required under the guidelines and it had been at least a year since the support order was issued. Remands for the issuance of a new child support order.
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Opinions Feb. 24, 2011

February 24, 2011
Indiana Court of Appeals
French C. Mason v. State of Indiana
49A02-1005-CR-475
Criminal. Affirms convictions of Class D felonies resisting law enforcement and unlawful use of body armor. The trial court had sufficient evidence to show Mason resisted law enforcement and his crime rose to the Class D felony level and to conclude Mason intended to wear body armor in the aid of the felony of resisting law enforcement through the use of a vehicle.
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Opinions Feb. 23, 2011

February 23, 2011
Indiana Court of Appeals
Debra K. Sands v. Helen HCI, LLC
06A01-1005-CC-231
Civil collections. Reverses denial of Sands’ motion to enforce a settlement agreement between herself, Helen HCI LLC and two other companies, providing for dismissal with prejudice of Helen HCI’s complaint against Sands in Indiana and dismissal with prejudice of Sands’ complaint against Helen HCI and the other companies in a Wisconsin suit. The parties entered into a binding contract which required the subsequent execution of a document memorializing their agreement and there is no uncertainty as to any substantial term of the settlement contract.
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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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