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Opinions Feb. 7, 2012

February 7, 2012
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7th Circuit Court of Appeals
Roy Wirtz, et al. v. City of South Bend
11-3811
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms dismissal of the city’s motion to appeal a case arising under the First Amendment’s establishment clause. Although the city is challenging two appealable orders, the challenge is untimely. The appeal is also moot.

Indiana Supreme Court and Indiana Tax Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Mitchell A. McCarter v. State of Indiana
26A04-1106-CR-409
Criminal. Reverses conviction of Class D felony sexual battery and remands with instructions to enter judgment as Class B misdemeanor battery. The state did not prove the element that D.H. perceived that she was compelled to submit to the groping of her buttocks through force or threat of force.

Benjamin Crossing Homeowners' Association, Inc. v. Rose Heide and David F. Wilkerson

79A04-1103-PL-185
Civil plenary. Reverses summary judgment for Heide and Wilkerson in their suit seeking declaratory judgment that the homeowners’ association couldn’t enforce a restrictive covenant to prohibit the operation of a child care business in their residences. The planned unit development ordinance has no affect on the association’s authority to enforce the private restrictive covenants at issue. Remands with instructions to enter summary judgment for the association on its request for injunctive relief and for further proceedings to determine an award of damages, if any.

Justin Woodhouse v. State of Indiana (NFP)
56A04-1105-CR-324
Criminal. Dismisses appeal of the trial court’s denial of Woodhouse’s motion to dismiss the state’s notice of a probation violation.

Christopher Short v. State of Indiana (NFP)
48A05-1107-CR-362
Criminal. Affirms denial of motion for discharge pursuant to Indiana Criminal Rule 4(B).

R.W. v. M.R. (NFP)
48A04-1106-MI-331
Miscellaneous. Reverses order on clarification granting M.R. visitation with R.W.’s minor children. Remands with instructions.
 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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