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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. 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

  2. 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!

  3. 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.

  4. 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.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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