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Opinions Feb. 11, 2011

February 11, 2011
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7th Circuit Court of Appeals
Mouhamadou M. Sow v. Fortville Police Department, et al.
10-2188
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young
Civil. Affirms District Court’s grant of summary judgment to the Fortville Police Department, Officer Michael Fuller of the Fortville Police Department, and the McCordsville Police Department. Sow’s action was brought under 42 U.S.C. sections 1983, 1985, and 1986 after he was arrest for forgery but the charges were later dropped. Sow also alleged numerous state law claims, asserting that the District Court had supplemental jurisdiction over those claims.

The Indiana Supreme Court
In the Matter of Patrick K. Rocchio
98S00-0911-DI-533
Discipline. Suspends Rocchio from the practice of law for at least 180 days without automatic reinstatement. He was charged with violating Indiana Professional Conduct Rules 7.2(c)(3) and 5.5(b)(2), but found to also have violated 7.2(d)(2), 7.3(c). His conduct during the disciplinary process demonstrates his inability to recognize his clear violations of this state's disciplinary rules, his contempt for those rules and this disciplinary process, and his lack of appreciation for the role of the court's hearing officer and Disciplinary Commission members and staff led to his suspension without automatic reinstatement. Justice Rucker dissents to length of suspension.

Indiana Court of Appeals
Amir H. Sanjari v. State of Indiana
20A03-1007-CR-384
Criminal. Vacates Sanjari’s conviction and five-year sentence on his second count of Class C felony nonsupport of a dependent due to double jeopardy constraints. Affirms his conviction of and five-year sentence for the first count of Class C felony nonsupport of a dependent, with fines, costs, and restitution.

Alexander R. Pala v. Annare L. Pala Loubser
91A05-1004-DR-271
Civil. Affirms trial court’s grant of Loubser’s motion to terminate maintenance award. Based upon review of the record, the appellate court can’t say that the evidence leaves them with the firm conviction that a mistake was made or that the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it.

T.L. v. Review Board of the Indiana Dept. of Workforce Development
93A02-1007-EX-773
Civil. Reverses and remands denial of T.L.’s motion to reinstate his appeal from an adverse determination of his claim for unemployment benefits. The following issue was presented for review: whether the board abused its discretion by adopting the findings and conclusions of the director, thereby affirming the denial of the request to reinstate T.L.’s appeal.

P.K.E. v. Review Board of the Indiana Dept. of Workforce Development and D.Z.
93A02-1007-EX-799
Civil. Affirms administrative law judge’s decision that P.K.E. had not discharged D.Z. for just cause and D.Z. was therefore entitled to unemployment benefits. The review board affirmed the ALJ’s decision and P.K.E. appealed.

David Martinez Zarate v. State of Indiana (NFP)
54A01-1007-CR-356
Criminal. Affirms sentence for conviction of dealing in cocaine, a Class B felony.

Juan Salazar-Arvisu v. State of Indiana (NFP)
20A03-0908-PC-379
Post-conviction. Affirms denial of petition for post-conviction relief.

Anthony A. Coffey v. State of Indiana (NFP)
27A02-1006-CR-753
Criminal. Affirms revocation of probation.

William T. Sexton v. State of Indiana (NFP)
71A05-1005-CR-352
Criminal. Affirms convictions of Class B misdemeanor false informing and Class D felony attempting to acquire a legend drug by fraud, deceit, misrepresentation, or subterfuge.

Robert W. Gard v. State of Indiana (NFP)
20A03-1004-CR-249
Criminal. Reverses trial court’s grant of the state’s motion for relief from order, which set aside its previous order granting Gard’s motion to suppress.

Michael J. Huffman v. State of Indiana (NFP)
48A02-1003-PC-421
Post-conviction. Affirms denial of petition for post-conviction relief.

Paternity of C.F.; Rita K. Manns v. Richard A. Faler (NFP)
37A04-1009-JP-573
Juvenile. Reverses and remands order of the trial court emancipating Manns’ son and terminating the support obligation of Faler.

William E. Cathey v. State of Indiana (NFP)
82A01-1006-CR-314
Criminal. Affirms sentence following convictions of two counts of Class D felony theft.

Candace Brewer v. State of Indiana (NFP)
29A02-1008-CR-1024
Criminal. Affirms conviction of Class D felony possession of a controlled substance.

Donald R. Tweedy v. State of Indiana (NFP)
55A01-1007-CR-327
Criminal. Affirms convictions of maintaining a common nuisance as a Class D felony, and driving while suspended as a Class A misdemeanor.

David Alan Davis Sr. v. State of Indiana (NFP)
48A02-1005-CR-648
Criminal. Reverses termination from the Madison County Drug Court Program and remands with instructions.

Michael Todd Hughes v. State of Indiana (NFP)
34A02-1008-CR-891
Criminal. Affirms denial of Hughes’ motion to withdraw his guilty plea.

James E. McGee v. State of Indiana (NFP)
45A04-1007-CR-413
Criminal. Affirms conviction of two counts of child molesting as Class A felonies.

Kenneth L. Duckworth Jr. v. State of Indiana (NFP)
35A04-1009-CR-543
Criminal. Affirms trial court’s finding Duckworth is a habitual offender following his three convictions for dealing in a controlled substance, one as a Class A felony and the other two as Class B felonies.

The Indiana Tax Court posted no opinions before IL deadline.
 

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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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