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Opinions Jan. 11, 2012

January 11, 2012
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

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

Indiana Court of Appeals
Daniel E. Serban v. State of Indiana
02A03-1106-CR-285
Criminal. Declines to revise Serban’s 11-year sentence following guilty plea to Class C felony corrupt business influence and Class D felony theft. Serban failed to demonstrate his sentence is inappropriate, and his stealing from his clients injured not only them, but also the legal profession.

Nicholas Williams v. State of Indiana
49A02-1103-CR-266
Criminal. Reverses trial court’s grant of the Indiana Board of Pharmacy’s motion to quash Williams’ subpoena for a certified copy of “any and all” of Williams’ prescription records. The confidentiality provisions of the applicable statute were enacted to protect Williams’ physician-patient privilege and pharmacist-patient privilege and he waived those privileges by requesting his prescription records in the exercise of his constitutional right to present a complete defense to the charged crimes. Williams’ request is sufficiently particular, the requested information is material to his defense, not all the information requested would be available from his doctors and the board has failed to show a paramount interest in not disclosing the information.

Dave's Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana
33A04-1104-PL-199
Civil plenary. Affirms two orders entered granting summary judgment to New Castle in its suit against Dave’s Excavating on breach of a construction contract and against Liberty Mutual under a performance bond. Dave’s refusal to resume work on the project constituted a breach of construction contract, and Liberty Mutual did not show that it asserted its rights to elect how to mitigate damages “promptly.”

Anthony J. Rehl, Sr. and Bessie A. Rehl v. Robert V. Billetz and Joy A. Billetz
52A05-1105-PL-246
Civil plenary. Affirms judgment in favor of the Billetzes regarding an access easement. The trial court did not err in making its findings of facts related to the relative use or increased use of the easement area and interference with the use of the Rehl property.

Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg
10A05-1102-PL-68
Civil plenary. Affirms in part and reverses in part summary judgment for Isgrigg. Isgrigg, in his official capacity as county surveyor, had standing to seek declaratory relief from the Clark County Drainage Board’s actions. The drainage board’s subdivision project didn’t establish a regulated drain under Indiana Code, and therefore, the board wasn’t required to utilize the county surveyor. The board’s removal of an obstruction from a natural watercourse without the county surveyor’s participation did violate Indiana Code.

Charles Lawrence, Sr. v. State of Indiana
02A03-1105-CR-194
Criminal. Affirms murder conviction. The state presented sufficient substantive evidence to establish that Lawrence was in his sister’s apartment around the time of the shooting and had the opportunity to commit murder.

Shandaleigha M. Tharp v. State of Indiana (NFP)
48A05-1105-CR-292
Criminal. Vacates Tharp’s aggregate 27-year sentence following a guilty plea for various offenses, including forgery, burglary, and theft and imposes an aggregate sentence of 19.5 years, with 14.5 executed and five years suspended.

Diyon Evans v. State of Indiana (NFP)
49A04-1104-CR-227
Criminal. Affirms convictions of Class B felony rape and Class B felony criminal deviate conduct.

Arnold W. Cook v. Consolidated Roofing, Inc. (NFP)
34A02-1104-CC-339
Civil collection. Affirms judgment substantially in favor of Consolidated Roofing on Cook’s complaint for injunctive and declaratory relief and damages.

Vincent Barrett and Sarah Barrett v. City of Logansport, Indiana; Michael Nicoll, in his capacity as Sexton of Mount Hope Cemetery; and James McDonald (NFP)
09A02-1103-PL-252
Civil plenary. Affirms judgment in favor of Logansport, Nicoll and McDonald on the Barretts’ claims for negligence, breach of contract, fraud and injunctive relief.

R.W. v. Indiana Department of Child Services (NFP)
71A03-1107-JT-309
Juvenile. Affirms involuntary termination of parental rights.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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