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Opinions Jan. 23, 2013

January 23, 2013
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7th Circuit Court of Appeals
John Doe v. Prosecutor, Marion County, Indiana
12-2512
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Reverses District Court decision to uphold statute prohibiting most registered sex offenders from using certain social networking and holds the law as drafted is unconstitutional. Though content neutral, the law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather specifically targeting the evil of improper communications to minors. Remands with instructions to enter judgment in favor of Doe and issue the injunction.

Indiana Court of Appeals
Fred C. Feitler, Mary Anna Feitler, and The Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, and JM Woodworking Company
17A04-1206-PL-297
Civil plenary. Grants rehearing and concludes that JM Woodworking Co. was not required to issue a pre-lien notice in order to hold a mechanic’s lien, and therefore now affirms the trial court on this point. Denies J. Laurie’s petition for rehearing in full and reaffirms original opinion in all other respects.

D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L. v. Christine Huck, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and IN. Dept. of Child Svcs.
79A04-1202-CT-61
Civil tort. Grants DCS’ petition for rehearing for the limited purpose of reminding counsel that relevant documents must be made a part of the record on appeal, and the record may not be supplemented on rehearing. Grants the family’s petition for rehearing in order to clarify the court’s reading of Indiana Code 31-25-2-2.5; to allow tort claims against DCS to proceed under a theory of vicarious liability, within the ITCA; and to allow federal civil rights claims to proceed. Affirms original opinion as to all matters not revised here.

David Bleeke v. State of Indiana, Edwin G. Buss, Gregory Server, Randall P. Gentry, Thor R. Miller, Valerie J. Parker, William R. Harris, Mia Kelsaw, Damita VanLandingham, and Susan Feasby
02A05-1201-PL-25
Civil plenary. Reverses granting summary judgment for the parole board and denying Bleeke’s motion for summary judgment. Remands with instructions that the trial court: (1) vacate its order granting summary judgment for the parole board and denying Bleeke’s motion for summary judgment; (2) enter an order granting Bleeke’s motion for summary judgment; (3) enter an order enjoining the parole board from enforcing any conditions premised on the fiction that Bleeke is a danger to minors; (4) enter an order enjoining the parole board from enforcing additional parole conditions 8, 5, 17, and 19 against Bleeke; and (5) enter an order enjoining the parole board from requiring Bleeke to incriminate himself as part of the Sex Offender Management and Monitoring Program.

Robert Earl Davis v. State of Indiana (NFP)
45A03-1203-CR-145
Criminal. Affirms murder conviction and 65-year sentence.

In the Matter of the Term. of the Parent-Child Rel. of: A.B. & P.B.; and E.B. v. The Indiana Dept. of Child Services (NFP)

35A05-1206-JT-298
Juvenile. Affirms termination of parental rights.

Michael Gregg v. State of Indiana (NFP)
48A02-1205-CR-400
Criminal. Affirms 20-year aggregate sentence following convictions of Class B felony dealing in methamphetamine and Class A misdemeanors resisting law enforcement and possession of marijuana.

Joshua C. Jackson v. State of Indiana (NFP)

35A02-1207-CR-589
Criminal. Affirms sentence following guilty plea to Class B felony robbery but reverses order Jackson pay restitution. Remands with instructions for the trial court to inquire about his ability to pay restitution, and if he is able, determine the amount to be paid and fix the manner of payment.

Michael L. Harris v. State of Indiana, Elkhart County Sheriff's Dept. (NFP)
20A03-1208-CR-345
Criminal. Dismisses appeal of denial of Harris’ request for return of property as moot.

Dennis Knight v. State of Indiana (NFP)

71A05-1208-CR-436
Criminal. Affirms conviction of Class C felony robbery.

Kevin Gene Rotino v. State of Indiana (NFP)
07A05-1205-CR-259
Criminal. Affirms Class D felony dealing in marijuana conviction.

Nathan Abbott, State of Indiana and Indiana State Police v. Michael Mitchell and Leonard Love (NFP)
45A03-1204-CT-167
Civil tort. Affirms jury verdict in favor of Mitchell and Love on their claims for false imprisonment.
 

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  5. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

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