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Opinions Dec. 16, 2010

December 16, 2010
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
William Hurst v. State of Indiana
49A02-1004-CR-378
Criminal. Affirms denial of motion to suppress evidence obtained upon the execution of a search warrant. To the extent the trial court concluded that Eric Thomas was inherently credible simply because he was a cooperating citizen informant, the trial court erred. A texted photo to Thomas corroborated the hearsay and there was sufficient evidence to support a finding of probable cause.

Anne W. Murphy, et al. v. Paul Terrell, et al.
49A04-1003-PL-198
Civil plenary. Reverses summary judgment in favor of Terrell and the class on their suit for injunctive relief against the state. Unsuccessful applicants for Medicaid disability benefits do not have a constitutional right to an in-person administrative hearing. Remands for summary judgment in favor of the state.

St. Mary Medical Center v. Marsha Bakewell
45A03-1004-CT-227
Civil tort. Affirms grant of Bakewell’s motion to correct error. Bakewell’s allegation may proceed under a premises liability theory, even though originally she also pursued as a medical malpractice claim.

Lightpoint Impressions, LLC v. Metropolitan Dev. Comm. of Marion County
49A02-1004-MI-435
Miscellaneous. Affirms that the Metropolitan Development Commission may hear appeals of decisions of the Lawrence Board of Zoning Appeals. Reverses grant of the MDC’s motion for summary judgment because it’s not clear whether the MDC had issued a final decision in the matter before Lightpoint appealed.

City of Kokomo, et al. v. Florence Pogue, et al.
34A02-1003-MI-356
Miscellaneous. Reverses denial of Kokomo’s motion to dismiss a remonstrance petition filed by a group of landowners whose land Kokomo wants to annex. The trial court erred in finding certain waivers of the right to remonstrate in exchange for connecting to the sewer system to be ineffective. Excluding those people’s signatures on the remonstrance petition causes the percentage of valid landowner signatures to fall below the statutorily-mandated minimum 65 percent.

R.D. v. Review Board
93A02-1005-EX-559
Civil. Reverses denial of R.D.’s application to attend the Art Institute for retraining because of the cost difference between that school and Ivy Tech. There is no substantial evidence supporting the review board’s denial. R.D.s’ request satisfies the “reasonable cost” requirement of 20 C.F.R. section 617.22(a)(6) and is consistent with the purpose of the Trade Act of 1974. Remands for further proceedings. Chief Judge Baker dissents.

Joseph Prewitt v. State of Indiana (NFP)
36A05-1004-CR-314
Criminal. Affirms sentence following guilty plea to Class D felony theft. Remands with instructions to award the proper amount of credit time and to correct clerical errors.

Carlos Morales v. State of Indiana (NFP)
49A02-1005-CR-599
Criminal. Affirms conviction of Class D felony sexual battery and reverses conviction of Class D felony criminal confinement. Remands with instructions to vacate the criminal confinement conviction.

Byron Dixon v. State of Indiana (NFP)
49A04-1005-CR-314
Criminal. Affirms conviction of Class B felony carjacking.

Term. of Parent-Child Rel. of K.R.; C.P.R. v. IDCS and Guardian Ad Litem program (NFP)
47A04-1007-JT-458
Juvenile. Affirms termination of parental rights.

Joseph Prewitt v. State of Indiana (NFP)
36A01-1004-CR-238
Criminal. Affirms sentence following guilty plea to Class D felony operating a motor vehicle while privileges are suspended.

Terrence L. Oliver v. State of Indiana (NFP)
10A01-0912-CR-564
Criminal. Affirms convictions of and sentence for Class A felony dealing in a narcotic drug and Class D felony maintaining a common nuisance.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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