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Opinions March 15, 2012

March 15, 2012
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7th Circuit Court of Appeals and Indiana Tax Court issued no Indiana opinions by IL deadline.

Indiana Supreme Court

Charlie White, et. al. v. Indiana Democratic Party, through its Chairman , Daniel J. Parker
49S00-1202-MI-73
Miscellaneous. Reverses a decision by Marion Circuit Judge Lou Rosenberg, which found that Charlie White was not eligible to take office following the November 2010 election because he had improperly registered to vote at an address where he was not living. Justice Brent Dickson concurred in result, but wrote separately to say that he agreed with the election contest being dismissed because he sees the Legislature’s attempt to impose additional eligibility qualifications on candidates as unconstitutional and not a basis to contest someone’s eligibility for office.

Michael R. Kole, Joseph L. Weingarten, and Glenn J. Brown, et al. v. Scott Faultless, Daniel Henke, Eileen Pritchard, Stuart Easley, et al.
94S00-1112-CQ-692
Certifiable question. Responding to a certifiable question from Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, the Supreme Court held that Indiana’s Government Modernization Act does allow a town to reorganize as a second class city wherein a city council elected at large then elects a mayor. If voters approve of referendums to that effect in November, the reorganization of the town of Fishers and Fall Creek Township may proceed as proposed.

Indiana Court of Appeals
Canon Harper v. State of Indiana
10A01-1012-CR-687
Criminal. Affirms convictions for dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors; and maintaining a common nuisance, a Class D felony. Holds that even though Harper did not possess the contraband found in a search of a purse and hotel room, the fact that the purse was in his car and the hotel room was rented in his name was sufficient to establish constructive possession.

Ayanna Wright and American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL-CIO v. City of Gary, Indiana
45A04-1107-PL-362
Civil plenary. Reverses trial court’s determination that an arbitrator in a collective bargaining agreement dispute exceeded his powers when he determined that Wright should be placed into another job, despite a city ordinance that stated the new position was not covered by the CBA.

Irmina Gradus-Pizlo, M.D., and Select Specialty Hospital Indianapolis, Inc. v. Donald Acton
49A02-1106-CT-503
Civil tort. Reverses trial court’s denial of motion for summary judgment in favor of Acton, holding that genuine issues of material fact exist with respect to the commencement of the statute of limitations for Acton’s proposed medical malpractice complaint.

Brad A. Altevogt, et al. v. Dennis L. Brand, et al.
44A03-1106-MI-237
Miscellaneous. Affirms trial court’s grant of summary judgment in favor of the defendants, holding the trial court did not err in rejecting the plaintiffs’ claim of title of the disputed land by public dedication because the plat did not dedicate the Indian Trail to the public, but instead indicated that the Indian Trail was for the use of the lot owners and their guests. The trial court also properly concluded that the plaintiffs had not established all of the elements of adverse possession.

T.H. b/n/f Sonja Lynetter (Walls) Fitzgerald v. Troy Hutchison (NFP)
82A01-1109-JP-438
Juvenile. Reverses trial court’s order suspending parenting time for and issuing protective order against father. Affirms court’s finding that mother was in contempt.

Susan R. May v. State of Indiana (NFP)
47A05-1103-CR-178
Criminal. Affirms sentence for murder.

Charles R. Smith v. State of Indiana (NFP)
78A04-1110-CR-585
Criminal. Affirms sentence for Class B felony dealing in a Schedule II controlled substance.

Ernest Wireman v. State of Indiana (NFP)
75A05-1008-CR-545
Criminal. Affirms convictions of and sentence for murder, Class A felony attempted murder and Class B felony arson.

Odonis D. Parker v. State of Indiana (NFP)
02A03-1108-CR-381
Criminal. Affirms sentence for Class B felony robbery.

Shawn McDonald v. State of Indiana (NFP)
35A05-1110-CR-529
Criminal. Affirms conviction of Class C felony possession of cocaine.

KSM, LLC v. Lighthouse Storage, LLC, Lawyers Title Ins. Corp., Inc., and Kevin and Stephen Corp. (NFP)
02A03-1106-PL-232
Civil plenary. Affirms grant of summary judgment in favor of Lighthouse Storage, holding court did not abuse its discretion in ordering rescission of the purchase contract. Reverses trial court’s grant of summary judgment in favor of Lawyers Title on KSM’s negligent misrepresentation claim and grant of summary judgment in favor of a KSM manager on Lighthouse’s actual fraud claim. Remands for further proceedings.

John Mitchem v. State of Indiana (NFP)
49A04-1108-CR-421
Criminal. Affirms conviction of Class B felony burglary and Class D felony theft.

Tyson Keplinger v. State of Indiana (NFP)
35A02-1104-PC-359
Post conviction. Affirms denial of petitions for post-conviction relief.

 

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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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