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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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