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Opinions Feb. 22, 2013

February 22, 2013
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7th Circuit Court of Appeals
Northeastern Rural Electric Membership Corp. v. Wabash Valley Power Association

12-2037
Vacates preliminary injunction granted by the U.S. District Court of the Southern District of Indiana, and remands the case to the district court so it may remand it to state court. Found the federal court does not have jurisdiction because the key questions of whether the contract was valid and whether the contract was breached are not questions of federal law.

Indiana Supreme Court
K.W. v. State of Indiana
49S02-1301-JV-20
Juvenile. Affirms Court of Appeals reversal of trial court ruling designating K.W. a delinquent for resisting law enforcement, and orders the delinquency adjudication vacated. Justices held that evidence was insufficient that K.W. acted “forcibly” to resist a school resource officer when he pulled away as the officer was attempting to handcuff him.

Indiana Court of Appeals
Clematine Hollingsworth v. State of Indiana
49A02-1207-CR-617
Criminal. Affirms conviction for Class B misdemeanor public intoxication, holding that an amendment to the statute could not be retroactively applied.

Nathan Carl Gilbert v. State of Indiana
10A05-1204-CR-220
Criminal. Affirmed in part, reversed in part and remands for resentencing of a Kentucky inmate on four counts of burglary, holding he was denied due process at his sentencing hearing when he wasn’t allowed sufficient time to prepare or properly examine his pre-sentence investigation report. The court held that the “anti-shuffling” provision of the Interstate Agreement on Detainers was not violated when Gilbert was returned to Kentucky before his sentencing hearing could be held in Indiana because the proceeding did not constitute a trial as defined under that provision.

Joshua King v. State of Indiana

49A02-1204-CR-351
Criminal. Affirms King’s convictions for Class C felony battery, Class A misdemeanor battery, and Class D felony strangulation and remands for correction of the Abstract of Judgment which incorrectly lists King’s second battery conviction as a Class C felony. Ruled the court did not violate King’s rights under the Confrontation Clause when it admitted testimony given by a police officer based on statements from the victim. Also found the trial court did not abuse its discretion when it admitted recordings of calls of King discussing the crime from jail.

John Kennendy v. State of Indiana (NFP)
49A02-1206-CR-450
Criminal. Affirms conviction of Class D felony theft.

Shawn W. Nicosin v. William J. Mesaeh and Loretta D. Mesaeh (NFP)

11A01-1207-MI-308
Miscellaneous/grandparent visitation. Reverses and remands the trial court’s grant of visitation of G.N. with her maternal grandparents, holding that the court erred by deviating from the requirements established in In re Guardianship of A.L.C., 902 N.E.2d 343, 356 (Ind. Ct. App. 2009).

Kelvin Hampton v. State of Indiana (NFP)
84A04-1209-CR-483
Criminal. Reverses and remands a denial of request for return of $146 in $1 bills and a photograph seized during a search of his residence, holding there was no indication the state instigated civil forfeiture proceedings.

Kevin Smith v. State of Indiana (NFP)
45A04-1205-PC-264
Post conviction. Affirms denial of post-conviction relief on convictions of Class A felony rape and criminal deviate conduct, Class B felony criminal confinement and Class C felony sexual battery.

Pablo C. Gallo v. Sandra Moira Hyland (NFP)
79A02-1207-DR-624
Domestic relations. Reverses and remands the trial court’s distribution of marital property order with instructions that the court follow the statutory presumption of equal distribution of property or set forth its rationale for deviating from it.

The Indiana Tax Court issued no opinions prior to IL deadline.
 

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  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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