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Opinions Jan. 12, 2012

January 12, 2012
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7th Circuit Court of Appeals
United States of America v. Michael Redmond and Charles Avery Jr.
10-1947, 10-3914
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms denial of Avery’s request to withdraw his guilty plea to crack cocaine distribution, the calculation of the crack cocaine quantity attributed to him and his sentence. Remands for the District Court to reconsider Redmond’s sentence following a guilty plea to conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base in light of United States v. Corner.

Indiana Supreme Court
Keith M. Ramsey, M.D., The Methodist Hospitals, Inc. v. Shella Moore
45S05-1105-CT-281
Civil tort. Holds that because the trial court’s order dismissing the portion of Moore’s proposed complaint dealing with the death of the fetus but refusing to dismiss her complaint in its entirety based on the lateness of her submission is not a final appealable judgment, there is no subject matter jurisdiction to hear the appeal. The trial court order did not dispose of all the claims as to all parties.

Thomas Dexter v. State of Indiana
79S05-1106-CR-367
Criminal. Reverses Dexter’s habitual-offender sentencing enhancement and holds that an unsigned judgment is not sufficient to prove beyond a reasonable doubt the fact of a prior conviction. Holds that the Double Jeopardy Clause of the Fifth Amendment doesn’t bar the state from retrying Dexter on the habitual offender enhancement. Summarily affirms the Indiana Court of Appeals in all other respects.

Indiana Court of Appeals
Jason Quinn v. Accurate Builders (NFP)
93A02-1108-EX-698
Agency appeal. Affirms decision of the Full Worker’s Compensation Board denying application for adjustment of claim.

Robert Weybright v. Kathy Weybright n/k/a Kathy Scaggs (NFP)
43A03-1105-DR-191
Domestic relation. Affirms determination that Kathy Weybright was not in contempt of a court order, that Robert Weybright maintain health insurance for the parties’ minor daughter, and that Kathy retain sole custody of the daughter. Remands for the court to modify its order so that Robert isn’t required to reimburse Kathy for certain bills.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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