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Opinions June 18, 2013

June 18, 2013
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7th Circuit Court of Appeals
Robert Yeftich, et al. v. Navistar Inc. and Indianapolis Casting Corp.
12-2964
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms dismissal of complaint filed by group of unionized workers alleging breach of collective-bargaining agreement under Section 301 of the Labor Management Relations Act. The complaint lacked enough factual content to plead a plausible claim for breach of the duty of fair representation, which is required to pursue this litigation.

Indiana Supreme Court
Tim Berry, Auditor of State; M. Caroline Spotts, Principal Clerk of the House of Representatives; and The State of Indiana/ Brian C. Bosma, Speaker v. William Crawford, et al.
49S00-1201-PL-53 and 49S00-1202-PL-76
Civil plenary. Reversed the judgment of the trial court, remands and directs the trial court to grant the defendants’ motion to dismiss for lack of justiciability. A split court ruled the  House of Representatives has the authority, granted by the Indiana Constitution, to levy fines against members of the House Democratic Caucus for leaving during the 2011 and 2012 legislative sessions. Moreover, the doctrine of separation of powers precludes judicial consideration of the Democrats’ claims for relief. Justice Robert Rucker dissented, arguing the House’s constitutionally granted discretion to punish its members does not include the ability to reduce its members’ compensation.

Indiana Court of Appeals
Nationstar Mortgage, LLC v. Jeffrey A. Curatolo, Et Al.,
45A03-1211-MF-469
Mortgage foreclosure. Reverses order modifying Nationstar Mortgage’s mortgage agreement with Curatolo. The trial court lacked the authority to modify the agreement without the consent of both parties.

Bertram A. Graves, M.D. v. Richard Kovacs, M.D., Edward Ross, M.D., and Indiana University Health f;/k/a Clarian Health Partners, Inc.
49A05-1301-PL-1
Civil plenary. Reverses the granting of judgment on the pleadings in favor of Kovacs and Ross and remands for further proceedings. The court found that although Graves’ complaint may have been unartfully drafted, the trial court erred in concluding that the complaint failed to state any actionable claim against Kovacs and Ross.     
 
Duane Crocker v. State of Indiana

79A04-1210-CR-542
Criminal. Affirms trial court’s denial of Crocker’s motion to suppress evidence. The court ruled Crocker should have been Mirandized as soon as he entered the police car and therefore his incriminating statements should have been suppressed. However, Crocker had signed a ‘Pirtle’ form and did not admit to knowing he was transporting marijuana until after he consented to the search of his vehicle.

Dartanyan Porche v. State of Indiana (NFP)
79A04-1206-CR-328
Criminal. Affirms Porche’s conviction of felony murder and 55-year sentence.

Term. of the Parent-Child Rel. of J.F. and D.F. and S.K. v. Indiana Department of Child Services (NFP)
48A02-1211-JT-905
Juvenile termination. Affirms trial court’s judgment to terminate parental rights of S.K. and D.F.

Frank Tiller v. State of Indiana (NFP)
49A05-1211-CR-571
Criminal. Affirms Tiller’s conviction of felony murder following a jury trial. The court ruled that given the blood stain evidence and the close proximity in time and location that Tiller was to the victim, a reasonable trier of fact could conclude Tiller was guilty beyond a reasonable doubt.  

Thomas A. Dexter v. State of Indiana (NFP)
79A05-1210-PC-557
Post conviction. Affirms the denial of Dexter’s petition for post-conviction relief.   

Lake Shore Estates MHC, LLC. v. Michael H. Lane, Et Al. (NFP)
71A05-1210-PL-512
Civil plenary. Affirms grant of summary judgment in favor of the government defendants and the collection agent.  

Charles C. Hitt v. State of Indiana (NFP)

42A04-1210-CR-508
Criminal.  Affirms denial of Hitt’s motion to withdraw his guilty plea to a Class B felony conspiracy to commit dealing in methamphetamine. The court ruled Hitt did not show that the trial court abused its discretion by denying his request to withdraw his plea.  

David Lautenschlager v. State of Indiana (NFP)
49A04-1211-PC-653
Post conviction. Affirms denial of Lautenschlager’s petition for post-conviction relief.

Term. of Parent-Child Rel. of C.M. and M.M.; R.M. and Indiana Department of Child Services, Annette Marion and Kenneth Marion (NFP)
02A04-1209-JC-468
Juvenile. Affirms the trial court’s order or judgment of the court awarding custody of C.M. and M.M. to their grandparents, K.M. and A.M.  

Term. of the Parent-Child Rel. of J.C. and R.C. and S.C. and R.C. Sr., S.C. & R.C. Sr. v. Indiana Department of Child Services (NFP)
71A03-1211-JT-501
Juvenile termination. Affirms court’s order to terminate parental rights to J.C. and R.C., Jr.

The Indiana Tax Court issued no opinions prior to IL deadline.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. 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.

  4. 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.

  5. 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)

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