Opinions Feb. 4, 2014

February 4, 2014
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
United States of America v. Darnell Jackson
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.
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
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
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
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

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)
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)
Agency action. Affirms finding that Wynne voluntarily left his employment without good cause.

Steven Smith v. State of Indiana (NFP)
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)
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)
Criminal. Affirms convictions of Class B felony rape and criminal deviate conduct.

Bradly Hornsby v. State of Indiana (NFP)
Criminal. Affirms convictions of Class B misdemeanors public intoxication and disorderly conduct.

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

Junius U. Brooks v. State of Indiana (NFP)
Criminal. Affirms sentence for Class B felony robbery.

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


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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?