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Opinions Jan. 21, 2011

January 21, 2011
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7th Circuit Court of Appeals
Maria Tara Sutherland v. Wal-Mart Stores Inc.
10-2214
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms summary judgment in favor of Wal-Mart on Sutherland’s hostile work environment and negligent infliction of emotional distress claims. She did not present evidence that would allow a jury to conclude Wal-Mart is liable for the assault committed against her by Aguas.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Robert Hollis, et al. v. Defender Security Company
49A02-1004-PL-464
Civil plenary. Affirms dismissal of Hollis’ wage claims brought under the Wage Payment Statute. An employee’s status at the time he or she files the claim is the relevant inquiry in determining whether to proceed under the Wage Payment Statute or the Wage Claims Statute. Robert was involuntarily separated from Defender Security Co. when he filed his claims, so they fell under the Wage Claims statute. Because he didn’t allege any Wage Claims Statute violations and submit his claim to the Department of Labor, the trial court properly dismissed his claims.

Darren Matlock v. State of Indiana
49A02-1006-CR-609
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated. Where the possibility exists that a defendant accused of OWI may at some point in the future regain competency and be released back into society, and when that release also may include the defendant driving, the state may pursue an OWI conviction even if the defendant’s incompetency caused he or she to be detained for a period in excess of the maximum possible sentence for OWI.

Benjamin H. Steinberg v. State of Indiana
53A01-1001-CR-16
Criminal. Affirms conviction of and 65-year sentence for murder. There was no reversible error in any of the issues Steinberg raised on appeal and his sentence is appropriate.

John P. Osburn v. State of Indiana
38A04-1004-CR-281
Criminal. Affirms convictions of Class D felonies theft and insurance fraud and vacates the Class D felony obstruction of justice conviction and sentence on double jeopardy grounds. There is enough evidence to support his convictions, but a review of the record indicates that the jury likely used the same facts to convict Osburn of both theft and obstruction of justice.

Zachary K. Gootee v. State of Indiana
67A05-1006-CR-74
Criminal. Affirms sentence imposed upon re-sentencing for convictions of four counts of Class C felony forgery, three counts of Class D felony fraud, one count of Class D felony theft, and the determination that Gootee is a habitual offender. The trial court did not abuse its discretion upon re-sentencing by imposing the same aggregate sentence of 24 years and by imposing consecutive sentences.

Brian Bronaugh v. State of Indiana
49A02-1004-CR-384
Criminal. Affirms convictions of Class B felony attempted robbery, Class B felony possession of a firearm by a serious violent felon, Class D residential entry, and Class A misdemeanor carrying a handgun without a license. The trial court did not abuse its discretion when it denied Bronaugh’s trial counsel’s motion to withdraw and Bronaugh was not denied due process when he was forced to attend the first day of trial wearing his jail clothes.

Jodi McGookin, et al. v. Guidant Corporation, et al.
71A04-1001-CT-101
Civil tort. Affirms denial of motion to correct error, following the trial court ruling in favor of Guidant on the McGookins’ state law complaint following the death of Jodi McGookin’s newborn daughter. The trial court properly found the claims pre-empted by federal law. The label on the pacemaker had been pre-approved by the FDA and Guidant wasn’t required to include additional warnings.

Christopher K. Washington v. State of Indiana
45A03-1004-CR-226
Criminal. Affirms 35-year sentence following guilty plea to Class A felony battery. Washington’s mental illness bears little weight on the analysis of his character and he failed to carry his burden of proving his sentence has met the inappropriateness standard of review.

Brandy Lozier v. State of Indiana (NFP)
15A01-1007-CR-347
Criminal. Affirms revocation of probation and imposition of four years of Lozier’s previously suspended sentence.

S.R. v. T.R. (NFP)
79A02-1005-DR-617
Domestic relation. Affirms decision to allow father T.R. to have unsupervised parenting time with the parties’ minor children. Holds that trial court’s admonishment concerning any future contempt findings does not violate mother S.R.’s due process rights.

David D. Williams v. State of Indiana (NFP)
45A04-1004-CR-242
Criminal. Affirms conviction of and sentence for Class B felony burglary and determination that Williams is a habitual offender.

Mark W. Phillips v. State of Indiana (NFP)
35A05-1005-CR-343
Criminal. Affirms conviction of Class A felony child molesting but reverses sentence imposed on that count. Revises it to 40 years, to be served concurrently with the eight-year sentence previously imposed on Class C felony touching or fondling a 10-year-old child with the intent to arouse or satisfy his own sexual desires or that of the child.

Adoption of T.D.V. and M.B.V.; B.R. v. J.V. (NFP)
15A05-1006-AD-364
Adoption. Affirms denial of stepfather B.R.’s petition to adopt T.D.V. and M.B.V.

Josh R. Crager v. State of Indiana (NFP)
17A03-1006-CR-283
Criminal. Affirms sentence following guilty plea to Class B felony possession of methamphetamine within 1,000 feet of a public park.

Bonnie Warren v. State of Indiana (NFP)
49A02-1007-CR-713
Criminal. Affirms convictions of Class C felony burglary and Class A misdemeanor resisting law enforcement.

Paternity of B.W.; D.W. v. T.P. (NFP)
71A05-1006-JP-455
Juvenile. Affirms modification of legal and physical custody of B.W. in favor of mother T.P.

Indiana Tax Court had posted no opinions at IL deadline.
 

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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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