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Opinions July 18, 2012

July 18, 2012
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7th Circuit Court of Appeals posted no Indiana opinions at IL deadline.

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

Indiana Court of Appeals

Annette Pittman v. State of Indiana
49A02-1112-CR-1132
Criminal. Affirms conviction of Class B misdemeanor public intoxication. I.C. 12-23-15-2 did not require the arresting officer, or other law enforcement personnel elsewhere, to perform an evaluation so thorough as to eliminate all other possible causes for each of the symptoms of alcoholic intoxication that Pittman exhibited.

Howard Justice v. American Family Mutual Insurance Co.
49A02-1112-PL-1078
Civil plenary. Reverses summary judgment for American Family on its claim that the workers’ compensation setoff provision reduced the limits of the liability policy such that its liability under Justice’s policy was zero. After a determination of liability and damages, Justice’s damages award should be reduced by the $25,000 recovery from Wagner and the percentage of workers’ compensation benefits paid to Justice based upon Wagner’s percentage of comparative fault, up to a maximum of $25,000. Remands with instructions.

Covered Bridge Homeowners Association, Inc., Clark County, Indiana Commission, et al. v. Town of Sellersburg, Indiana
10A01-1101-PL-13
Civil plenary. Affirms ruling in favor of Sellersburg that the town’s annexation proceedings should take priority over an incorporation proceeding and the dismissal of remonstrance filed against annexation. The annexation proceeding is first in time and takes priority over the incorporation proceeding because it was validly instituted in June 2008 and Sellersburg’s initial failure to comply with the statutory notice provisions and hold a public hearing did not invalidate the annexation. Holds that the statutory remonstrance waiver requirements were substantially complied with and thus the remonstrance lacks sufficient valid signatures.

Demarco Davis v. State of Indiana (NFP)
82A01-1109-CR-454
Criminal. Affirms conviction of Class B felony dealing in cocaine.

Curtis L. Bass v. State of Indiana (NFP)
84A01-1110-CR-473
Criminal. Affirms sentence imposed following guilty plea to two counts of Class B felony burglary and a subsequent order revoking community corrections placement and committing Bass to the DOC for six years.

In the Matter of M.W. and K.W.-N., Minor Children Alleged to be in Need of Services; M.W. v. Indiana Dept. of Child Services (NFP)
34A05-1201-JC-27
Juvenile CHINS. Affirms finding that children are in need of services.
 

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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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