Opinions Aug. 30, 2012

August 30, 2012
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Virgil Hall III v. Michael Zenk, superintendent
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.
Civil. Vacates the grant of Hall’s habeas petition and remands for a hearing to determine whether Hall was prejudiced by extraneous information that reached his jury.

Thursday’s opinions
7th Circuit Court of Appeals

Sung Park v. Indiana University School of Dentistry, et al.
11-1933, 11-2109
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal for failure to state a claim in Park’s suit alleging equal protection and due process violations and claims for state law breach of contract. She has no state law claim for breach of contract, and Park has not identified a protectable property interest.

Indiana Supreme Court and Indiana Tax Court posted no opinions at IL deadline.

Indiana Court of Appeals

Dana Young v. State of Indiana
Juvenile miscellaneous. Affirms conviction of Class B misdemeanor failure to ensure school attendance. Young was adequately advised of and waived her right to a jury trial.

Lane Alan Schrader Trust as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust v. Larry Gilbert and Nancy J. Malecki
Civil plenary. Reverses and remands to the trial court with instructions to enter a new order consistent with this opinion. The trial court did not err by concluding that the legal survey was not conducted through the use of good surveying practices, but did err by imposing the two previous surveys.

Peabody Energy Corp., Peabody Coal Company, LLC, and Black Beauty Coal Company v. Richard F. Roark, Beelman Truck Co., and North American Capacity Insurance Co.
Civil tort. Reverses summary judgment in favor of NAC and against Peabody regarding whether Peabody is an insured under the NAC policy. Roark was injured because of Peabody’s sole negligence, and his injuries arose out of his employer Beelman’s operations. Affirms summary judgment that Beelman did not breach the master performance agreement entered into by Beelman and Peabody. Remands for further proceedings.

F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually v. Indiana Dept. of Family Services, Vanderburgh Co. Office of Family & Social Services, Evansville Police Dept., et al.

Civil tort. Affirms summary judgment in favor of DCS and the police department for DCS’ and the police department’s failure to inform parents J.D. and M.D. of their daughter’s molestation. Finds the police department is not a proper party to this case. Indiana Code 31-33-18-4, the statute the parents say gives rise to DCS’ duty to notify them of their daughter’s molestation, does not confer a private right of action. Judge Crone concurs in part and dissents in part; Judge Bradford concurs in part, dissents in part, and concurs in result.

Michael Kern v. State of Indiana (NFP)
Miscellaneous. Affirms denial of Kern’s petition for writ of habeas corpus.

Keith Allen Abell v. State of Indiana (NFP)
Criminal. Affirms aggregate 36-year sentence for various convictions, including Class B felony attempted rape and Class B felony attempted criminal deviate conduct.

Leroy Hall v. State of Indiana (NFP)

Post conviction. Affirms denial of petition for post-conviction relief.

Chris B. Davis v. Rhonda S. Davis (NFP)
Domestic relation. Affirms denial of Chris Davis’ petition to modify custody.

Danielle Kelly v. State of Indiana (NFP)
Criminal. Affirms denial of motion to suppress.

In the Matter of the Commitment of D.W. v. Wishard Health Services Midtown Mental Health (NFP)
Mental health. Affirms temporary involuntary commitment to mental health facility.

Tommy Goldman v. State of Indiana (NFP)
Criminal. Affirms sentence imposed following probation revocation.


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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?