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Opinions July 16, 2010

July 16, 2010
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7th Circuit Court of Appeals
Tom George, et al. v. National Collegiate Athletic Association
09-3667
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses dismissal of the plaintiffs’ entire second amendment complaint alleging the NCAA’s ticket-allocation process is an illegal lottery. Because plaintiffs sufficiently pleaded that the NCAA conducted a lottery, the bona-fide-business-transaction exception to the statutory definition of gambling is of no effect. The District Court erred in holding that the doctrine of in pari delicto bars plaintiffs from seeking relief from the court. Remanded for further proceedings. Judge Cudahy dissents.

Tamika Jones v. Res-Care, Inc. and Shane McFall
09-3076
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms summary judgment for Res-Care and McFall in Jones’ suit alleging race discrimination, retaliation, and various state-law claims. Jones’ Title VII claims, with the exception of her retaliation claim, are barred, and affirms summary judgment with respect to the state claims of defamation and vicarious liability. She failed to establish a prima facie case under the direct method on her retaliation claim.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Nathaniel L. Williams v. State of Indiana
18A02-0911-CR-1092
Criminal. Affirms convictions of two counts of Class A felony dealing in cocaine, one conviction of Class C felony possession of a controlled substance and Class D felony maintaining a common nuisance. Reverses and vacates one Class C felony conviction and remands for the trial court to correct its records to reflect the vacation of the conviction. The admission of the confidential informant’s statements did not violate Williams’ right to confront witnesses. Williams didn’t preserve for appellate review his claim that the trial court failed to properly admonish the jury.

Ruth M. Brown v. Alliance Environmental, Inc. v. R. Bruce Wallace (NFP)
49A02-0909-CV-854
Civil. Reverses part of order that awarded Brown compensatory damages resulting from Wallace’s breach of the fiduciary duty that he owed to Brown and in finding Brown held a 12 percent ownership interest in Alliance at the time of the asset sale in 2005. Remands for further proceedings. Affirms order in all other respects.

Aaron Spears v. State of Indiana (NFP)
49A02-0912-CR-1194
Criminal. Affirms conviction of Class A misdemeanor battery.

Wendy G. Thomas, as personal representative of the estate of William T. Dollard, deceased v. Carol Sparks Drake, et al. (NFP)
06A05-0907-CV-427
Civil. Grants estate’s petition for rehearing and affirms original opinion affirming summary judgment in favor of Drake.  

D.L. v. State of Indiana (NFP)
49A02-0908-JV-781
Juvenile. Affirms placement at Kokomo Academy.

Michael Shelton Scott v. State of Indiana (NFP)
48A02-1003-CR-235
Criminal. Affirms 40-year sentence for Class A felony child molesting.

Raymond Baird and George M. Cox v. State of Indiana (NFP)
31A01-0910-CR-514
Criminal. Affirms denial of Baird and Cox’s motion for review of numerous claims of error relating to the trial court’s bond schedule and conditions of bond.

Estate of Mary L. Riley and Marjorie R. Potts v. James Riley (NFP)
08A02-1001-ES-33
Estate supervised. Affirms decision in favor of James Riley’s son, trust, and grandchildren.

G.M. v. I.D.C.S. (NFP)
49A02-1001-JT-13
Juvenile. Affirms involuntary termination of parental rights.

J.M.O. v. J.C.D; J.M.O. v. D.H.M. (NFP)
07A01-0910-CV-478
Civil. Reverses denial of J.M.O.’s petitions for protective orders against her child’s father and his fiancée. Remands for further proceedings.

Aaron R. Ross v. State of Indiana (NFP)
49A05-0911-CR-637
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class C felonies possession of cocaine and a firearm, and carrying a handgun without a license, and three counts of Class D felony possession of a controlled substance.

Joseph Matthews v. City of Indianapolis (NFP)
49A02-1002-CT-110
Civil tort. Reverses summary judgment for City of Indianapolis in Matthews’ complaint alleging the city negligently failed to place or replace a stop sign at an intersection and that proximately caused his injuries.

M.L. v. State of Indiana (NFP)
49A02-1001-JV-68
Juvenile. Affirms adjudication for committing what would be Class D felony possession of cocaine if committed by an adult.

Charles Orr v. State of Indiana (NFP)
28A01-0912-CR-603
Criminal. Affirms sentence following guilty plea to burglary as a Class B felony.

K.W. v. L.C. (NFP)
14A01-0911-CV-542
Civil. Affirms denial of K.W.’s petition to terminate guardianship.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. 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

  3. 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!

  4. 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.

  5. 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.

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