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Opinions Aug. 28, 2012

August 28, 2012
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7th Circuit Court of Appeals
Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security
11-3589
Civil. Reverses District Court’s affirmation of the decision to deny disability insurance benefits. The Social Security Administration Appeals Council did not follow its own regulations which require it to consider “new and material evidence.” Also finds the administrative law judge’s residual functional capacity determination is based on an incomplete assessment of the record. Remands for further proceedings.

David Schepers, et al. v. Commissioner, Indiana Department of Correction
11-3834
Criminal/sex offender registry. Reverses and remands to the District Court a grant of summary judgment in favor of the DOC, holding that its new procedures to allow current prisoners to challenge information in their pending listing in the Sex and Violent Offender Registry failed to provide any process for registrants who are not incarcerated.

Indiana Supreme Court and Indiana Tax Court posted no opinions prior to IL deadline.

Indiana Court of Appeals

James T. Mitchell v. 10th and The Bypass, LLC, and Elway, Inc.
53A01-1112-PL-593
Civil plenary. Affirms trial court’s vacation of partial summary judgment in favor of Mitchell, holding that the court properly exercised its discretion when new evidence was tendered during an interlocutory appeal.

Anthony Mark Sewell v. State of Indiana
73A01-1112-CR-609
Criminal. Affirms trial court’s conviction of a Class D felony sex offender residency offense, rejecting ex post facto arguments.

Gunther Kranz and Carol Kranz v. Meyers Subdivision Property Owners Association, Inc.,Christopher Bartoszek, and Indiana Dept. of Natural Resources
75A03-1112-PL-577
Civil plenary/rehearing. Reaffirms its prior ruling, that the Natural Resources Commission has jurisdiction to make property-rights decisions necessary to issue permits; that the NRC properly interpreted its rule; that the evidence supports the NRC’s ruling; and there was no unconstitutional taking of the Kranzes’ property.

FLM, LLC, and Daimler Chrysler Corp., n/k/a Chrysler LLC v. The Cincinnati Insurance Company
49A02-0902-CV-127
Civil Plenary. Reverses and remands the trial court’s entry of summary judgment in favor of the insurance company, finding language in an insurance policy to be ambiguous.
 
Ann Rachelle Johnson v. Dr. A., Dr. B., and Medical Provider
90A05-1109-PL-487
Civil plenary. Dismisses Johnson’s appeal of a trial court order that required a physician retained as her expert witness to execute a release indemnifying one of his prior employers from liability that may arise for the inadvertent disclosure of confidential information. The court held that Johnson does not yet face actual prejudice from the trial court’s order.

Jamar Washington v. State of Indiana
49A02-1202-CR-79
Criminal. Affirms and remands convictions of Class D felony battery, Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct, ordering the court to correct the abstract of judgment to accurately reflect the conviction of resisting law enforcement as a Class A misdemeanor rather than a Class D felony.

Terrell Hawkins v. State of Indiana
49A04-1201-CR-12
Criminal. Affirms denial of request for educational credit time. The 2011 amendment that ended state funding for educational expenses of inmates convicted of a felony and confined in a penal facility is not an ex post facto law nor did it violate Hawkins’ federal or state constitutional rights.

K.W. v. State of Indiana
49A02-1201-JV-9
Juvenile. Reverses juvenile court’s adjudication as a delinquent child, holding that a student who pulled away from a school resource officer attempting to handcuff him did not commit the equivalent of Class D felony resisting law enforcement because the officer was not acting as a law enforcement officer at the time and the elements of resisting law enforcement had not been met.

Term. of Parent-Child Rel.: T.V. (Minor child) and M.M. (Father) v. The Indiana Dept. of Child Services (NFP)
48A02-1112-JT-1178
Juvenile termination. Affirms termination of parental rights.

In the Matter of M.S. (Minor Child), Child in Need of Services; M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)
49A02-1201-JC-26
Juvenile. Affirms trial court determination of child in need of services.

Donald E. Wrobel v. State of Indiana (NFP)
71A05-1204-CR-180
Criminal. Affirms 30-year sentence for conviction of two counts of Class B felony sexual misconduct with a minor and being a habitual offender.

Kenneth Johnson v. State of Indiana (NFP)
49A02-1112-CR-1110
Criminal. Affirms conviction of Class D felony theft.
 
David D. West v. State of Indiana (NFP)
18A02-1202-CR-146
Criminal. Affirms convictions of two counts of Class C felony child exploitation and two counts of Class D felony possession of child pornography.

Bradley Berry v. State of Indiana (NFP)
49A05-1201-CR-40
Criminal. Affirms conviction of Class B misdemeanor public intoxication.

Londale D. Madison v. State of Indiana (NFP)
71A03-1203-CR-109
Criminal. Affirms Class C felony conviction of burglary.

William Bruce v. State of Indiana (NFP)
79A05-1112-CR-671
Criminal. Affirms two Class A felony convictions of child molesting.

Steven Wayne Minor v. State of Indiana (NFP)
03A05-1111-CR-586
Criminal. Affirms conviction of Class D domestic battery.

Gerald W. Town v. State of Indiana (NFP)
35A04-1112-CR-675
Criminal. Affirms convictions of Class C felony sexual misconduct with a minor and Class D felony battery.

Gregory C. Walbridge v. JP Morgan Chase Bank, N.A. (NFP)
02A03-1112-CC-589
Collections. Affirms trial court’s judgment for Morgan Chase Bank.

In the Matter of the Adoption of C.E.H., minor; W.S. and E.H. v. J.T.C. and S.L.C. (NFP)
29A05-1111-AD-683
Adoption. Affirms trial court grant of J.T.C. and S.L.C.’s adoption petition.
 

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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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