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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 sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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