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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
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.
 

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

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  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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