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Opinions Aug. 22, 2011

August 22, 2011
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The following opinion was posted after IL deadline Friday:
Indiana Tax Court
Virginia Garwood, et al. v. Indiana Dept. of State Revenue
82T10-0906-TA-29
Tax. Grants summary judgment for the Garwoods and denies the Indiana Department of State Revenue’s motion for summary judgment. Holds that the 16 jeopardy assessments issued against the Garwoods for all or part of the 2007 through 2009 tax years are void as a matter of law. The department’s use of the jeopardy assessment procedure against the Garwoods exceeded statutory authority. Orders the department to void all of the jeopardy assessments and take any other actions necessary to give full effect to the order.

Today’s opinions
7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.


Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Smith Barney, et al. v. StoneMor Operating LLC, et al.
41A04-1103-MF-96
Mortgage foreclosure. Affirms denial of Barney’s motion to compel arbitration. As a matter of law, Independence Trust was not a “successor in interest” to either of the prior trustees and therefore isn’t bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims.

Dennis Perry v. State of Indiana
49A05-1012-CR-774
Criminal. Perry’s ex-girlfriend’s material statements detailing her physical attack and identifying her attacker were admissible pursuant to the medical diagnosis exception to the hearsay rule. Her statements were nontestimonial and did not implicate Perry’s confrontation rights. The trial court erred by admitting prior misconduct evidence involving Perry and the victim and this error warrants reversal and a new trial.  

Robbie J. Bex v. State of Indiana
53A01-1008-CR-422
Criminal. Affirms conviction of and sentence for Class A misdemeanor operating while intoxicated endangering a person. There is no federal constitutional bar to a defendant’s waiver of the presence and participation of one of the six jurors in a criminal trial. The trial court did not abuse its discretion by imposing the public defender fee as a condition of probation without holding a hearing on Bex’s ability to pay because the fees weren’t due until after she completed the executed portion of her sentence. Senior Judge Sullivan dissents in part.

Marc Van Rowland v. State of Indiana (NFP)
79A02-1010-CR-1161
Criminal. Affirms convictions of Class C felony attempted burglary, Class A misdemeanor resisting law enforcement, and an attendant adjudication of being a habitual offender.

Garry Coleman v. Department of Local Government Finance (NFP)
49A02-1101-MI-40
Miscellaneous. Affirms dismissal of wrongful termination complaint.

A.B. v. State of Indiana (NFP)
49A02-1101-JV-142
Juvenile. Affirms adjudication as a delinquent child for committing what would be Class C felony child molesting if committed by an adult.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court accepted five cases on transfer and denied 37 for the week ending Aug. 19, 2011.
 

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  1. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

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