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Opinions March 12, 2014

March 12, 2014
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The following 7th Circuit Court of Appeals opinions were posted after IL deadline Tuesday:
Cindy Golden v. State Farm Mutual Automobile Insurance Company
12-3901
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Affirms dismissal of Golden’s complaint under Rule 12(b)(6) and denies her motion to certify questions of state law to the Indiana Supreme Court. She alleges in her lawsuit that State Farm owes its insureds a duty to explain at the time a policy is issued that in-house counsel may be used to defend its insureds against third-party claims.

David R. Snyder v. J. Bradley King, Trent Deckard, Linda Silcott and Pam Brunette
13-1899
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal of the state-affiliated defendants King and Deckard on immunity grounds and finding that Snyder failed to state a claim against the county-affiliated defendants Silcott and Brunette. Snyder filed a lawsuit after he was turned away from the polls because his registration had been revoked while he was incarcerated. The lawsuit was properly dismissed on immunity and Monell grounds alone. Chief Judge Wood concurs in result.

Wednesday’s opinions
Indiana Supreme Court

State of Indiana v. I.T.
20S03-1309-JV-583
Juvenile. Affirms trial court’s grant of I.T.’s motion to dismiss a delinquency petition filed against him based on information discovered during a polygraph exam administered as part of his probation. Concludes the state could appeal the decision because the trial court essentially suppressed evidence ending the proceeding. Reconciles the limited immunity in part (b) of the Juvenile Mental Health Statute with the constitutional privilege against self-incrimination, and construes the statute to conform to that privilege. Here, I.T.’s statements during a court-ordered therapeutic polygraph were impermissibly used against him.

Indiana Court of Appeals
Kimberly D. Blankenship v. State of Indiana
55A05-1307-CR-342
Criminal. Affirms convictions of Class D felonies unlawful possession of a syringe and maintaining a common nuisance. The officers’ reliance on the search warrant was objectively reasonable under Article 1, Section 11 of the Indiana Constitution and, as such, any defect in probable cause underlying the warrant does not render the evidence inadmissible under the exclusionary rule.

In re the Adoption of: J.T.D. & J.S. (Minor Children), Children to be Adopted, and N.E. (Prospective Adoptive Parent) v. Indiana Department of Child Services
45A03-1308-AD-310
Adoption. Affirms denial of DCS’ motions that N.E.’s petition to adopt be transferred from Lake Superior Court to juvenile court, where proceedings are pending for the involuntary termination of parental rights regarding the children. Pursuant to statute, the Civil Division of the Lake County Court System, which includes the Lake Superior Court, has exclusive jurisdiction to adjudicate adoption petitions.

Steven Cox v. State of Indiana (NFP)
79A05-1305-CR-216
Criminal. Affirms conviction of Class A felony conspiracy to commit dealing in methamphetamine.

Arafat Isa v. Catherine A. Adams, Christopher J. Perry, and State Farm Insurance Company (NFP)
64A04-1307-CT-349
Civil tort. Affirms judgment on the evidence in favor of Adams, Perry and State Farm on Isa’s complaint seeking damages arising from a multi-vehicle collision.

Personal Resource Management, Inc., and Margaret A. Ditteon v. Evanston Insurance Company (NFP)
84A01-1304-PL-157
Civil plenary. Affirms summary judgment in favor of Evanston Insurance Co. on Personal Resource Management Inc.’s and Ditteon’s complaint alleging breach of contract and seeking of damages and a declaration that claims they submitted are covered.

Ty Wilkerson v. State of Indiana (NFP)
79A02-1303-CR-234
Criminal. Affirms denial of motion to set aside guilty plea to Class A felony dealing in methamphetamine.

Tasha Ensley, et al. v. Veterans of Foreign Wars, et al. (NFP)
02A03-1308-CT-340
Civil tort. Affirms summary judgment in favor of the Veterans of Foreign Wars, Department of Indiana, in the plaintiffs’ negligence action.

In the Matter of the Termination of the Parent-Child Relationship of: K.S. (Minor Child), and W.W. (Father) v. The Indiana Department of Child Services (NFP)
34A02-1310-JT-876
Juvenile. Affirms termination of parental rights.

Kaneka S. Kidd v. State of Indiana (NFP)
45A04-1308-CR-398
Criminal. Affirms conviction and sentence for felony murder.

Richard W. Tome v. State of Indiana (NFP)
61A05-1307-CR-324
Criminal. Affirms sentence following open plea of “guilty but mentally ill” on four counts of Class B felony criminal confinement.  

Miguel A. Lazcano v. State of Indiana (NFP)
49A02-1311-CR-914
Criminal. Affirms trial court order reducing bond to $170,000.

The Indiana Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by 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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