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Opinions Aug. 9, 2013

August 9, 2013
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7th Circuit Court of Appeals
Paul Hester v. Indiana State Department of Health
12-3207
Civil. Affirms District Court ruling granting summary judgment in favor of the Department of Health. The panel held that there was evidence that Hester was fired for cause, and that Hester failed to produce evidence showing age, race or gender discrimination supporting his claim that his firing violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, or Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e17.

Indiana Court of Appeals
Thomas W. Oster, II v. State of Indiana
84A05-1208-CR-437
Criminal. Affirms in part, reverses in part and remands a man’s conviction and aggregate 18-year sentence on charges of Class C felony burglary, Class A misdemeanor criminal mischief and an enhancement as a habitual offender. The majority found sufficient evidence to affirm the burglary conviction and habitual offender finding, but ruled the mischief conviction was double jeopardy, ordering the conviction and sentence vacated. The aggregate sentence will be unchanged because the one-year sentence on the mischief charge is served concurrently with a seven-year sentence on the burglary conviction. Judge Patricia Riley would order the burglary conviction vacated, finding in dissent that the state produced insufficient evidence to support the theft intent element of the charge.

Eddie Spalding v. State of Indiana
49A04-1210-CR-534
Criminal. Affirms denial of Spalding’s motion to dismiss and discharge. Finds although nearly 400 days had passed since Spalding’s arrest, his right to a speedy trial had not been violated. Since Spalding was held during most of that time in federal custody, Indiana did not have exclusive control and therefore Indiana Criminal Rule 4(C) does not apply. The time Spalding spent in foreign jurisdictions does not count in Indiana.  

Tranell Nash v. State of Indiana (NFP)
49A02-1210-PC-874
Post conviction. Affirms denial of Nash’s post-conviction relief petition for his conviction for Class A felony attempted robbery.

In the Matter of S.K., A Child in Need of Services; and A.R. v. The Indiana Dept. of Child Services (NFP)
84A05-1301-JC-7
Juvenile. Affirms trial court’s determination that S.K. is a child in need of services.
 
Andrew Wright, Jr. v. State of Indiana (NFP)
71A03-1212-CR-522
Criminal. Affirms conviction for murder.

Nephrology Specialists, P.C., Shahabul Arfeen, M.D., Sanjeev Rastogi, M.D., Maher Ajam, M.D. and Raied Abdullah, M.D. v. Asim Chughtai, M.D., Rafael Fletes, M.D., Kupusamy Umapathy, M.D., et al. (NFP)
45A03-1212-CT-535
Civil tort. Affirms, in this rehearing, its opinion that non-compete provisions continue in certain employment contracts of the departing physicians. Clarifies that the court’s reference to an attorney’s testimony does not indicate the document was inherently unclear.

Eddie Spalding v. State of Indiana
49A04-1210-CR-534
Criminal. Affirms denial of Spalding’s motion to dismiss and discharge. Finds although nearly 400 days had passed since Spalding’s arrest, his right to a speedy trial had not been violated. Since Spalding was held during most of that time in federal custody, Indiana did not have exclusive control and therefore Indiana Criminal Rule 4(C) does not apply. The time Spalding spent in foreign jurisdictions does not count in Indiana.  

 

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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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