Opinions

Opinions May 8, 2014

May 8, 2014
Indiana Court of Appeals
Belinda Douglas v. Neil Spicer and L.S.
32A01-1309-JP-403
Juvenile. Affirms order that Spicer pay $6,600 in back child support. The trial court did not err when it determined that father’s court-ordered child support obligation terminated after 33 weeks in October 2005.
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Opinions May 7, 2014

May 7, 2014
Indiana Supreme Court
Mayor Gregory Ballard v. Maggie Lewis, John Barth, and Vernon Brown
49S00-1311-PL-716
Civil plenary. Reverses partial summary judgment to Maggie Lewis, holding Mayor Greg Ballard is entitled to summary judgment on redistricting ordinance issue. Justices exercise judicial restraint and leave redistricting in the hands of the two branches of local government responsible for the task. Also reverses any order requiring Ballard to pay part of the cost of a master brought in on the issue.
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Opinions May 6, 2014

May 6, 2014
7th Circuit Court of Appeals
Cung Hnin v. TOA (USA), LLC
13-3658
Civil. Affirms summary judgment in favor of TOA on Cung Hnin’s claims of discrimination based on national origin and retaliation after his firing from TOA. Hnin presented no evidence suggesting TOA officials did not believe their reasons for firing him after employees raised concerns about his behavior. Likewise, Hnin had not presented circumstantial evidence that would permit a jury to infer that TOA retaliated against him for voicing his concerns about the promotion of ethnic Chin workers.
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Opinions May 5, 2014

May 5, 2014
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Opinions May 2, 2014

May 2, 2014
U.S. 7th Circuit Court of Appeals
Sarah E. Frey, Kevin Enright and Protect Our Woods Inc. v. Environmental Protection Agency and Gina McCarthy, Administrator
13-2142
Civil. Affirms District Court rulings of summary judgment in favor of EPA and denial of motion for U.S. District Court Chief Judge Richard Young to disqualify himself based on prior rulings. Young correctly found plaintiffs’ motions were moot because a Bloomington PCB cleanup is ongoing, because plaintiffs are not prevailing parties or parties to the original consent decree, and as such they also are not entitled to attorney fees. Young’s decision not to disqualify himself did not deny plaintiffs due process.
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Opinions May 1, 2014

May 1, 2014
Indiana Supreme Court
Alva Electric, Inc., Arc Construction Co., Inc., Danco Construction, Inc., Deig Bros. Lumber & Construction Co., Inc., et al. v. Evansville-Vanderburgh School Corporation and EVSC Foundation, Inc.
82S01-1307-PL-473
Civil plenary. Affirms summary judgment in favor of the defendants on the antitrust claim. Reverses summary judgment for the defendants on the issue of a public bidding violation. Holds the procedure employed by the school corporation to renovate one of its buildings violated Indiana’s Public Work Statute, but not the Antitrust Act. Remands with instructions to enter summary judgment in favor of the taxpayers who brought the lawsuit as well as a declaration that the transactions by the school corporation violated the Public Work Statute.
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Opinions April 30, 2014

April 30, 2014
7th Circuit Court of Appeals
United States of America v. James V. Carroll
13-2600
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Criminal. Affirms denial of motion to suppress following Carroll’s guilty plea to one count of possession of child pornography and six counts of sexual exploitation of a child. The information in the detective’s affidavit was sufficient to establish fair probability that the computer or other digital storage devices within Carroll’s home would contain evidence of child pornography or exploitation of a child, despite the fact that the photographs were taken approximately five years earlier.
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Opinions April 29, 2014

April 29, 2014
Indiana Supreme Court
In the Matter of: Karl N. Truman
10S00-1401-DI-55
Attorney discipline. Issues a public reprimand for violation of Indiana Professional Conduct Rule 5.6(a) by making an employment agreement that restricted the rights of a former associate to practice after termination of the employment relationship. The court also accepted the parties’ stipulation that Truman violated Rule 1.4(b), failure to explain a matter to the extent reasonably necessary to permit client to make informed decisions regarding representation.
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Opinions April 28, 2014

April 28, 2014
Indiana Court of Appeals
John M. Weidman v. State of Indiana
03A01-1306-CR-255
Criminal. Affirms 14-year sentence following guilty pleas in two separate causes. Weidman specifically agreed in his plea agreement that he was not entitled to credit for the time he was on electronic monitoring as a condition of his release on bond. Accordingly, he may not now claim that he was entitled to credit for the time he was on electronic monitoring.
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Opinions April 25, 2014

April 25, 2014
Indiana Court of Appeals
Marvin Garner v. State of Indiana
49A02-1310-CR-834
Criminal. Affirms aggregate 60-year sentence for four counts of Class A felony child molesting. His offenses were committed against multiple victims and against the same victims repeatedly, and his victims were young and he abused this position of trust.
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Opinions April 24, 2014

April 24, 2014
Indiana Court of Appeals
Donnetta Newell v. State of Indiana
49A02-1309-CR-744
Criminal. Affirms Class A misdemeanor intimidation conviction. The trial court did not abuse its discretion in admitting evidence of the incident that led to Newell’s eviction and there is sufficient evidence for the finder of fact to conclude that Newell knew her statement to a security guard would be transmitted to the subject of her threat.
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Opinions April 23, 2014

April 23, 2014
Indiana Court of Appeals
Matthew P. Wilhoite v. State of Indiana
34A04-1303-CR-138
Criminal. Affirms conviction of Class B felony “conspiracy to commit attempted armed robbery.” Wilhoite argued his conviction is invalid because a person may not be convicted of “conspiring to attempt” any crime. Although the state referenced a non-existent crime when it listed “conspiracy to commit attempted robbery” on the charging information as the crime committed, Wilhoite has not demonstrated fundamental error.
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Opinions April 22, 2014

April 22, 2014
Indiana Court of Appeals
Shelly Bailey v. Lance Bailey
25A04-1309-DR-452
Domestic relation. Reverses trial court’s modification of physical custody of the two children. Finds the Parallel Parenting Time Order did not enable the court to modify the children’s custody to joint custody especially since neither parent petitioned for a change in custody. Judge John Baker dissented, writing that, as instructed by the Parallel Parenting Time Order, the trial court was trying to act in the best interest of the children and to prevent any further destructive behavior by the parents.
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Opinions April 21, 2014

April 21, 2014
Indiana Court of Appeals
Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pamela Sandefur v. Utica Township, John Durbin, Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, et al.
10A05-1308-PL-388
Civil plenary. Reverses trial court grant of summary judgment in favor of Utica Township defendants and remands for proceedings on their claims. Old Utica School Preservation plaintiffs are entitled under the public standing doctrine to proceed with their claim that the township violated language in a quitclaim deed requiring the former school to be operated by the township solely for park and recreation purposes. Plaintiffs sued when the township leased the building for purposes including temporary housing or a halfway house for criminal offenders.
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Opinions April 17, 2014

April 17, 2014
Indiana Court of Appeals
Jason Taylor v. State of Indiana
45A03-1310-CR-406
Criminal. Reverses denial of petition for expungement. Determines that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement.
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Opinions April 16, 2014

April 16, 2014
Indiana Supreme Court
David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al.
02S05-1305-PL-364
Civil plenary. Reverses the trial court’s grant of summary judgment in favor of the parole board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19 and 20, and remands with instructions that it enter an order enjoining the parole board from enforcing those conditions. Affirms the trial court’s grant of summary judgment to the parole board with respect to Bleeke’s claims about the constitutionality of the Sex Offender Management and Monitoring Program.
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Opinions April 15, 2014

April 15, 2014
7th Circuit Court of Appeals
United States of America v. Marcus Henderson
13-2483
Criminal. Affirms denial of motion to suppress and conviction of being a drug user in possession of firearms in violation of 18 U.S.C. Section 922(g)(3). The record is replete with specific and articulable facts which the SWAT officers reasonably relied upon to conclude that the officers or others faced a dangerous situation without a protective sweep of his house.
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Opinions April 14, 2014

April 14, 2014
Indiana Court of Appeals
Ball State University v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband
45A03-1307-DR-296
Domestic relation. Dismisses Ball State’s appeal of the order to release the college transcript of Jennifer Irons’ child. This appeal was not properly brought under Appellate Rule 14(A)(3). Denies Jennifer Irons’ request for appellate attorney fees. Judge Brown concurs in part and dissents in part.
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Opinions April 11, 2014

April 11, 2014
Indiana Court of Appeals
Randall Langford v. State of Indiana (NFP)
30A01-1309-CR-431
Criminal. Affirms conviction of Class A misdemeanor operating a motor vehicle while intoxicated.
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Opinions April 10, 2014

April 10, 2014
Indiana Court of Appeals
HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company
49A04-1307-PL-313
Civil plenary. Reverses dismissal of HRC Hotels’ amended petition for judicial review, which substituted I-465 LLC as the real party in interest instead of HRC Hotels. The standing requirements under I.C. 36-7-4-1603 are procedural rather than jurisdictional, so HRC Hotels’ alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. It should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. Remands for further proceedings.
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Opinions April 9, 2014

April 9, 2014
Indiana Court of Appeals
In re the Order for the Payment of Attorney Fees and Reimbursement of Expenses, State of Indiana v. Jeffrey Cook
48A02-1307-MI-615
Miscellaneous. Affirms order the state should pay Pendleton Correctional Facility inmate Jeffrey Cook’s appellate counsel $5,232.35 in attorney fees and expenses. I.C. 33-37-2-4, which recognizes the financial burden placed on counties containing state correctional facilities, and shifts the burden to the state to pay both trial and appellate costs.
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Opinions April 8, 2014

April 8, 2014
Indiana Court of Appeals
Michael A. Ney v. Susan A. Ney (Beery) (NFP)
49A02-1309-DR-836
Domestic relation. Affirms denial of Michael Ney’s motion to decrease his child support obligation.
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Opinions April 7, 2014

April 7, 2014
7th Circuit Court of Appeals
United States of America v. Stephanie L. Donelli
13-2548
Criminal. Affirms 60-month sentence for convictions of wire fraud and tax evasion. Donelli’s claim that the trial court erred by failing to consider her mental illness, bipolar II disorder, as a principal argument in mitigation was rejected because she failed to present the diagnosis as a principal argument in mitigation, and because she waived the argument by failing to object to her sentence apart from the fact that it was above the guidleline range.
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Opinions April 4, 2014

April 4, 2014
7th Circuit Court of Appeals
The following opinion was issued after IL deadline Thursday.

United States of America v. Lori Hargis
12-2153
Criminal. Affirms 60-month sentence for Lori Hargis’ conviction of conspiracy to use fire to commit wire fraud for her role in recruiting a man to set fire to her home to collect insurance proceeds. Circuit judges rejected Hargis’ argument that the District Court erred when it adjusted her sentence from the guideline range of 15 to 21 months in prison, finding that the judge adequately explained his rationale for imposing sentence.
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Opinions April 3, 2014

April 3, 2014
Indiana Court of Appeals
Jeffrey M. Miller and Cynthia S. Miller v. Federal Express Corporation and 500 Festival, Inc.
49A02-1307-PL-619
Civil plenary. Affirms summary judgment in favor of Federal Express and 500 Festival. The panel held that the entities were immune from the Millers’ claims of defamation and intentional infliction of emotional distress due to online comments critical to his leadership of Junior Achievement of Central Indiana. The entities are immune to the claims under the Communications Decency Act, which recognizes them as providers, not publishers, of Internet content.
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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. 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

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