ILNews

Opinions Feb. 4, 2014

February 4, 2014
Keywords
Back to TopE-mailPrintBookmark and Share

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
United States of America v. Darnell Jackson
13-1496
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms conviction and sentence for unlawful possession of a weapon as a convicted felon. By selling the Ruger pistol to David Dircks, who like Jackson was prohibited from possessing a firearm, Jackson transferred the firearm in connection with a felony offense separate and distinct from the possession offense of which he was charged and convicted. Consequently, the District Court properly increased Jackson’s offense level pursuant to section 2K2.1(b)(6)(B).

Tuesday’s opinions
7th Circuit Court of Appeals

Eric Smith v. Executive Director of the Indiana War Memorials Commission, et al.
13-1939
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses denial of Smith’s motion for a preliminary injunction against the enforcement of a policy that requires a permit before gathering on commission properties. The new policy, revised shortly after the District Court denied the motion, retains the problematic features of the old policy. Also, Smith has met the requirements for obtaining a preliminary injunction. Remands with instructions to enter an appropriate preliminary injunction.

Indiana Court of Appeals
Ruben Gonzalez v. State of Indiana
52A02-1306-CR-526
Criminal. Reverses conviction for Class B felony aggravated battery because of a double jeopardy violation. Remands for trial court to reduce restitution award by $41,200, the amount of a permanent partial impairment settlement paid to Rodney Gahl, a correctional officer Gonzalez severely beat while incarcerated. A PPI payment is compensation for an injured employee’s permanent loss of physical function(s) rather than for an inability to work. Gahl, himself, could not have sought restitution at the criminal proceeding for loss of physical function, as it does not encompass already-incurred lost wages or medical expense. Accordingly, JWF Specialty Company, the third-party administrator for the state’s workers’ compensation benefits, cannot recover the PPI payment via its status as a surrogate victim.

In the Matter of C.U., A Child in Need of Services, C.U. and J.U. v. Indiana Department of Child Services
49A05-1307-JC-354
Juvenile. Affirms adjudication that child is a child in need of services. The evidence supports the designation under I.C. 31-34-1-1 that the parents abandoned the child. Rejects the parents’ claim that the boy should have been adjudicated under I.C. 31-34-1-6 because he substantially endangers his own health or the health of his family members.  

Jason A. Fishburn v. Indiana Public Retirement System
49A02-1305-MI-391
Miscellaneous. Affirms summary judgment for INPRS and the revised determination that Fishburn’s total monthly disability benefit payment from the 1977 fund is 79.85 percent of monthly salary of a first-class patrol officer. Although the statute is ambiguous, the court finds INPRS’ interpretation to be reasonable. Also, based upon the General Assembly’s inaction in the face of the INPRS’ interpretation of Ind. Code 36-8-8-13.5(f), the General Assembly is deemed to have acquiesced in INPRS’s interpretation of the disability benefit statutes.

In the Matter of Des.B. and Dem.B., Minor Children in Need of Services, E.B. v. Indiana Department of Child Services

49A02-1306-JC-487
Juvenile. Affirms determination the children are children in need of services. The evidence supports the trial court’s findings that, as of the fact-finding hearing, the mother continued to have extensive problems with drugs and violent relationships with the children’s fathers. The evidence also supports the trial court’s findings that these problems are harmful to the children. The trial court’s findings support its judgment that “there is a substantial risk of endangering the children” and that the children are in need of care, treatment, or rehabilitation that they are not receiving and that is unlikely to be provided or accepted without the coercive intervention of the court.

Jerry Cooper v. State of Indiana (NFP)
02A03-1309-CR-366
Criminal. Affirms conviction of Class B felony unlawful possession of a firearm by a serious violent felon and remands with instructions to correct a sentencing error.

James B.Wynne v. Review Board of the Indiana Department of Workforce Development and Thyssenkrupp Presta (NFP)
93A02-1306-EX-536
Agency action. Affirms finding that Wynne voluntarily left his employment without good cause.

Steven Smith v. State of Indiana (NFP)
22A05-1306-CR-317
Criminal. Affirms conviction of Class A felony attempted dealing in cocaine and adjudication as a habitual offender. Remands with instructions that the trial court clarify in its records that it did not enter a judgment of conviction on Class B felony possession of cocaine.

Paul Fletcher v. National Financial Services d/b/a Fidelity Investments and Mark Zupan (NFP)
45A03-1306-PL-211 
Civil plenary. The trial court did not err in considering the issue of the ownership of the 401(k) account because Fidelity filed a complaint for interpleader of the account and the parties filed a joint motion acknowledging that the account was at issue. The trial court erred in granting Zupan’s motion for summary judgment because Fletcher designated some evidence creating a genuine issue of material fact with regard to forgery. The trial court did not abuse its discretion when it closed discovery after the case had been pending for more than three years.

Ramon Santana, Jr. v. State of Indiana (NFP)
45A03-1306-CR-213
Criminal. Affirms convictions of Class B felony rape and criminal deviate conduct.

Bradly Hornsby v. State of Indiana (NFP)
49A02-1306-CR-523
Criminal. Affirms convictions of Class B misdemeanors public intoxication and disorderly conduct.

Brian Brough v. C. Richard Rush (NFP)
88A04-1304-PL-204
Civil plenary. Affirms summary judgment in favor of Rush on Brough’s legal malpractice complaint.

Junius U. Brooks v. State of Indiana (NFP)
02A04-1305-CR-266
Criminal. Affirms sentence for Class B felony robbery.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

ADVERTISEMENT