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Opinions June 22, 2010

June 22, 2010
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The following opinion was posted Monday after IL deadline.
7th Circuit Court of Appeals

Medical Assurance Co., Inc. v. Amy Hellman, et al.
08-2887
U. S. District Court, Northern District of Indiana, Hammond Division, Judge Allen Sharp.
Civil. Medical Assurance appealed the District Court’s stay on the company’s declaratory judgment action. The company asked the court to declare that Dr. Mark Weinberger breached his contract obligations when he disappeared while on vacation and hasn’t been participating in his defense in more than 350 medical malpractice claims. As an insurer, it must show that the breach resulted in actual prejudice by showing that the outcome of the underlying case would have been altered by the insured’s cooperation. The District Court had noted it would be impossible for Medical Assurance to show actual prejudice without interfering with the state court processes, but the Circuit Court disagrees. The Circuit Court wrote that summary judgment is a good tool to examine not only whether Medical Assurance can succeed as a matter of law but also whether this case is a suitable candidate for declaratory relief by allowing the company to go forward with its challenge to its duty to defend. Vacates and remands the case for further proceedings.

Today’s opinions
7th Circuit Court of Appeals

United States of America v. Vertran Wheaton
09-3171
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Dismisses appeal of 36-month sentence for violating terms of supervised release. Wheaton admitted having violated the terms, and his counsel filed an Anders brief. The court notes Wheaton didn’t ask to withdraw his admissions but objects only to the sentence and not the revocation of supervised released based on his admissions. Using United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002), the court holds the challenge cannot stand. Grants counsel’s motion to withdraw.

Indiana Supreme Court
In the Matter of Mandate of Funds; St. Joseph County Commissioners and St. Joseph County Council v. The Hon. Peter J. Nemeth and the St. Joseph Probate Court
71S00-0912-MF-569
Civil. On automatic review pursuant to Trial Rule 60.5(B) and Appellate Rule 61, this is the first case utilizing the 2009 amended procedures of T.R. 60.5. Reverses the dismissal of Mandate 1 directing that the commissioners “shall not sell, assign, or otherwise transfer any interest in the land without the court’s consent” and remands it for trial. Affirms in part and reverses in part Mandate 2 about renovations to the Juvenile Justice Center and Mandate 3 regarding raises in salaries. Affirms the award of attorney fees and remands for a determination and award of the court’s appellate attorney fees. Chief Justice Shepard and Justice Rucker concur with author Justice Sullivan. Justice Dickson concurs in part and dissents in part with a separate opinion, with which Justice Boehm concurs.
 
Indiana Court of Appeals
Adam Starr v. State of Indiana
49A04-0912-CR-677
Criminal. Reverses conviction of refusal to identify self, a Class C misdemeanor because Starr did not fall within the purview of the refusal to identify statute.

Indiana Tax Court had posted no opinions and IL deadline.
 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. 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...

  5. 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

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