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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. 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...

  2. 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

  3. 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!

  4. 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.

  5. 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.

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