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Opinions June 29, 2010

June 29, 2010
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The following opinion was posted after IL deadline Monday.
Indiana Supreme Court
Sylvia B. Piven, et al. v. ITT Corporation, Inc., et al.
94S00-0911-CQ-508
Certified question. The District Court of New York correctly applied instructive Delaware caselaw to determine the demand futility standards that Indiana would apply. Holds that the Indiana Business Corporation Law employs the same standard for showing - lack of disinterestedness - both as to the composition of special board committees under Indiana Code Section 23-1-32-4 and to the requirement that a shareholder must make a demand that the corporation‘s board act unless the demand would be futile.

Today’s opinions
Indiana Supreme Court
Andre Peoples v. State of Indiana
79S02-0912-CR-549
Criminal. Affirms finding Peoples is a habitual offender. People’s instant dealing offense is to be counted in calculating the total number of unrelated felony convictions an individual has for drug dealing. While a single felony drug conviction is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the instant offense.

Myron Owens v. State of Indiana
49S02-0910-CR-429
Criminal. Affirms Owens’ convictions of and sentence for dealing cocaine and obstruction of justice, and that he has accumulated two unrelated convictions to be sentenced under the habitual offender statute. Holds conspiracy to deal conviction is not equivalent to a dealing conviction for purposes of the Indiana habitual offender statute.

Indiana Court of Appeals
Randy Edward Johnson v. State of Indiana
53A01-1002-CR-38
Criminal. Affirms conviction of Class A felony child molesting. No actual conflict existed that required the defense attorney to make a choice advancing his own interests to the detriment of his client’s interests, but only a potential conflict occurred between Johnson and his counsel. Finds that the trial court’s action of formally noting Johnson’s displeasure on the chronological case history and forwarding his request to the Monroe County Public Defender Officer reasonable. The State did not commit prosecutorial misconduct during closing arguments.

Paternity of H.S.; P.S. v. R.F.
91A02-1003-JP-334
Juvenile. Affirms summary judgment in favor of R.F. in P.S. and H.S.’s paternity action against him and the denial of their request for genetic testing of R.F. Any objections to Judge Overbeck’s presiding over the adoption were waivable and H.S. and P.S. have done just that due to mother P.S.’s failure to raise the issue in 1975. Concludes that a mere desire to know the identity of one’s biological father, whatever the reason, is insufficient once establishing legal paternity is not possible. The trial court correctly denied H.S and P.S.’s motion to compel genetic testing on R.F.

Paternity of K.D.; T.N. v. B.D.
49A02-0907-JV-693
Juvenile. Reverses juvenile court order prohibiting mother T.N. from discussing legal proceedings with the media following the establishment of paternity of her child K.D. The order is an invalid prior restraint on mother’s free speech rights, and the confidentiality provisions in Indiana Code and Administrative Rule 9 don’t prohibit her from talking to others about the case based on her knowledge obtained independent of the juvenile proceedings. Remands with instructions.

Lorenzo A. Taylor v. State of Indiana

29A02-0912-CR-1212
Criminal. Reverses conviction of conspiracy to commit dealing in cocaine as a Class A felony and remands with instructions to enter as a Class B felony and resentence accordingly. Taylor’s convictions and sentences for both dealing in cocaine and conspiracy to commit dealing in cocaine don’t violate the prohibition against double jeopardy.

City of Indianapolis v. Olive Duffitt

49A04-0911-CV-661
Civil. Reverses denial of City of Indianapolis’ motion for summary judgment in Duffitt’s tort action for damages arising out of injuries sustained from falling on a sidewalk. Given the budgetary considerations and cost-benefit analyses that produced the city’s prioritization scheme, Indianapolis’ designated evidence demonstrates that its decisions are discretionary under the “planning-operational test” as it is interpreted in Pairsh and Rutherford. In cases where certain policy decisions have been delegated to individual employees, discretionary immunity may be established through affidavits. Remands with instructions to enter summary judgment in favor of the city.

Michael Harrison v. Veolia Water Indianapolis, LLC
49A04-0912-CV-722
Civil. Reverses summary judgment in favor of Veolia Water Indianapolis on the basis that Harrison failed to provide Veolia with notice of his injury pursuant to the Indiana Tort Claims Act. Concludes after considering the evident purposes of ITCA and the development of the common law predating Indiana Tort Claims Act’s adoption that Veolia is not a governmental entity or a political subdivision of the State entitled to ITCA’s protections. Remands for further proceedings

Adam Gibson v. State of Indiana (NFP)
47A01-1001-CR-28
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary.

Kathy Hardesty v. Larry Vickery (NFP)

08A04-1001-PO-117
Order of protection. Affirms order of protection against Hardesty.

Christopher Deardorff v. State of Indiana (NFP)
02A03-0911-CR-550
Criminal. Affirms conviction of Class D felony theft.

James Daugherty v. State of Indiana (NFP)
21A01-1001-CR-55
Criminal. Affirms sentence following guilty plea to public intoxication as a Class B misdemeanor.

Term. of Parent-Child Rel. of L.C. & G.C.; G.C. v. Marion County Dept. of Child Services and Child Advocates (NFP)

49A02-0912-JV-1253
Juvenile. Affirms termination of parental rights.

Saundra and Clyde Smithson v. Howard Regional Health System (NFP)

34A02-1001-CT-73
Civil. Reverses and remands summary judgment in favor of Howard Regional Health System that it was immune from liability under the Indiana Tort Claims Act.

S.C. v. State of Indiana (NFP)

49A02-0912-JV-1186
Juvenile. Affirms adjudication for false informing, a Class A misdemeanor if committed by an adult.

Sheldon Fogleman v. State of Indiana (NFP)
30A01-1002-CR-62
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Billy Dix v. Indiana State Department of Health, et al. (NFP)
03A01-1001-MI-13
Miscellaneous. Affirms order on judicial review affirming the Indiana State Department of Health’s administrative determination that Dix’s involuntary transfer was in compliance with Indiana’s regulations.

Spencer Jones v. State of Indiana (NFP)
49A05-0912-CR-719
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Donald Fisher v. Tower Bank and Trust Co. (NFP)
02A05-1002-MF-97
Mortgage foreclosure. Affirms summary judgment in favor of Tower Bank upon the court’s determination that the bank’s lien on property owned by Stauffer Development was first in priority.

L.M. v. State of Indiana (NFP)
49A02-1001-JV-15
Juvenile. Affirms adjudication for Class B felony child molesting if committed by an adult.

Cynthia Sericati v. State of Indiana (NFP)
49A04-0911-CR-673
Criminal. Affirms conviction of Class D felony neglect of a dependent.

Alvino Pizano v. State of Indiana (NFP)
45A04-1002-CR-128
Criminal. Affirms denial of motion to remove defendant from Indiana’s Sex Offender Registry Act’s Residency Restriction Portion.

Kevin Holloway v. State of Indiana (NFP)
49A05-0911-CR-649
Criminal. Affirms conviction of Class C felony child solicitation.

Indiana Tax Court had posted no opinions at IL deadline.

 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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