ILNews

Opinions August 12, 2013

August 12, 2013
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7th Circuit Court of Appeals
Thomas H. Hurlow v. United States of America
12-1374
Criminal. Reverses the district court’s denial of Hurlow’s 2255 petition and remands for further proceedings. Rules Hurlow’s allegation - he would not have entered into the plea agreement had his counsel informed him of his potentially meritorious Fourth Amendment claim - was sufficient to overcome the wavier in his plea agreement not to contest his conviction or sentence under 28 U.S.C. 2255.


Indiana Tax Court
Miller Pipeline Corporation v. Indiana Dept. of State Revenue

49T10-1012-TA-64
Tax Court. Denies Miller Pipeline’s petition for partial summary judgment on its appeal of a Department of Revenue final determination denying its claim for a refund of gross retail sales and use tax paid between 2005-2007. The court held that evidence submitted in support of the motion was not properly designated and is inadmissible. The court will by separate order schedule a case management conference with parties to discuss pre-trial matters and scheduling.


Indiana Court of Appeals
Billy Savoy v. State of Indiana (NFP)
49A02-1301-CR-14
Criminal. Reverses and remands to the trial court with instructions to vacate Savoy’s conviction for theft, a Class D felony, leaving as is his conviction and sentence for criminal mischief, a Class D felony. Rules Savoy has shown that there is a reasonable possibility that the trial court used the same evidentiary facts to establish the essential elements of theft and criminal mischief thus violating Indiana’s Double Jeopardy Clause.

Martin Mendoza v. State of Indiana (NFP)

49A04-1302-CR-68
Criminal. Reverses and remands the denial of Mendoza’s motion for return of his $658 taken at the time of his arrest. Rules there is no finding based on admissible evidence that Mendoza could not lawfully posses the property under the State forfeiture statutes or that Mendoza failed to file his motion properly. Consequently, the trial court was without authority to deny his motion for return of property.


Tammy Coleman v. Darryl Davis (NFP)

49A02-1210-PO-793
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/august/08121303pdm.pdf
Order of Protection. Affirms trial court’s decision to enter a protective order against Coleman and in favor of Davis. Concludes the evidence was sufficient to permit the trial court, acting as the trier of fact, to reasonably conclude that Coleman was a “family or household member” who threatened physical harm to Davis or placed Davis in fear of physical harm, thereby committing “domestic or family violence” under the Civil Protection Order Act. In his dissent, John Baker argued the evidence presented in court failed to establish a sufficient threat under the CPOA.

The Indiana Supreme Court issued no opinions before IL deadline.

 

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  1. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  2. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

  3. She must be a great lawyer

  4. Ind. Courts - "Illinois ranks 49th for how court system serves disadvantaged" What about Indiana? A story today from Dave Collins of the AP, here published in the Benton Illinois Evening News, begins: Illinois' court system had the third-worst score in the nation among state judiciaries in serving poor, disabled and other disadvantaged members of the public, according to new rankings. Illinois' "Justice Index" score of 34.5 out of 100, determined by the nonprofit National Center for Access to Justice, is based on how states serve people with disabilities and limited English proficiency, how much free legal help is available and how states help increasing numbers of people representing themselves in court, among other issues. Connecticut led all states with a score of 73.4 and was followed by Hawaii, Minnesota, New York and Delaware, respectively. Local courts in Washington, D.C., had the highest overall score at 80.9. At the bottom was Oklahoma at 23.7, followed by Kentucky, Illinois, South Dakota and Indiana. ILB: That puts Indiana at 46th worse. More from the story: Connecticut, Hawaii, Minnesota, Colorado, Tennessee and Maine had perfect 100 scores in serving people with disabilities, while Indiana, Georgia, Wyoming, Missouri and Idaho had the lowest scores. Those rankings were based on issues such as whether interpretation services are offered free to the deaf and hearing-impaired and whether there are laws or rules allowing service animals in courthouses. The index also reviewed how many civil legal aid lawyers were available to provide free legal help. Washington, D.C., had nearly nine civil legal aid lawyers per 10,000 people in poverty, the highest rate in the country. Texas had the lowest rate, 0.43 legal aid lawyers per 10,000 people in poverty. http://indianalawblog.com/archives/2014/11/ind_courts_illi_1.html

  5. A very thorough opinion by the federal court. The Rooker-Feldman analysis, in particular, helps clear up muddy water as to the entanglement issue. Looks like the Seventh Circuit is willing to let its district courts cruise much closer to the Indiana Supreme Court's shorelines than most thought likely, at least when the ADA on the docket. Some could argue that this case and Praekel, taken together, paint a rather unflattering picture of how the lower courts are being advised as to their duties under the ADA. A read of the DOJ amicus in Praekel seems to demonstrate a less-than-congenial view toward the higher echelons in the bureaucracy.

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