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Opinions March 21, 2012

March 21, 2012
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The following Indiana Supreme Court opinions were posted after IL deadline Tuesday:
LaPorte Community School Corporation v. Maria Rosales
46S04-1105-CT-284
Civil tort. Reverses and remands for a new trial on the issue of liability only. One of the jury instructions given by the trial court could have misled the jury about a key issue regarding liability in this child wrongful death case. Justice Sullivan dissents.

Randall L. Woodruff, Trustee, U.S. Bankruptcy Court, on Behalf of Legacy Healthcare, Inc.d/b/a New Horizon Develop. Center v. In. Family & Social Serv. Admin., Office of Medicaid Policy & Planning
29S02-1110-PL-598
Civil plenary. Affirms trial court finding that FSSA breached its contract with respect to the remaining pre-decertification claims and awarded New Horizon $93,666.09. It also allowed FSSA an equal amount as a set-off for the receivership costs.

Wednesday’s opinions
7th Circuit Court of Appeals and Indiana Tax Court  posted no opinions by IL deadline.


Indiana Supreme Court
State of Indiana v. International Business Machines Corporation
49S00-1201-PL-15
Civil plenary. Holds that Indiana Code 34-29-2-1 – providing that the governor of the state of Indiana is “privileged from arrest on civil process, and from obeying any subpoena to testify” – operates to preclude a trial court from issuing an order to compel the governor’s deposition in a contract dispute brought by the state of Indiana against a contractor. Justice Sullivan concurs in result.

John Witt, HydroTech Corp, and Mark Shere v. Jay Petroleum, Inc., and Jack R. James
38S02-1110-CV-608
Civil. Affirms trial court order holding John Witt, HydroTech Corp. and attorney Mark Shere in contempt of court for violating the terms of a temporary restraining order. The court order was sufficiently clear and certain to unambiguously direct the cessation of all further activities by Witt, Shere, and Hydrotech at the site. Justices Rucker and Sullivan dissent.

Marion County Auditor, and McCord Investments, LLC v. Sawmill Creek, LLC a/k/a Saw Creek Investments, LLC
49S02-1106-CV-364
Civil. Reverses trial court decision to set aside the tax deed on grounds that the auditor’s effort to notify Sawmill Creek of the tax sale was constitutionally deficient for failing to meet the requirements of due process. The auditor satisfied the due process requirement articulated in Mullane, Dusenbery and Flowers. Justice Rucker dissents.     

Rodney Nicholson v. State of Indiana
55S01-1107-CR-444
Criminal. Affirms conviction of Class C felony stalking. Holds that the lag in time between the harassing calls in 2006 and the subsequent single call in 2008 didn’t foreclose the conviction for stalking, particularly since much of the break in time between the calls was due to Nicholson’s incarceration.

Indiana Court of Appeals
Michael J. Griffin v. State of Indiana
53A05-1106-CR-288
Criminal. Affirms murder conviction but revises Griffin’s sentence to 45 years. The state produced sufficient evidence to negate Griffin’s claim that he was acting in sudden heat when he killed the victim, and the reckless homicide instruction was properly refused.

Kristine Bunch v. State of Indiana
16A05-1007-PC-439
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. The fire victim toxicology evidence does constitute newly discovered evidence and the state’s failure to turn over a report from the Bureau of Alcohol, Tobacco and Firearms testing of floor samples violates Brady. Judge Crone dissents.

Bill Musgrave v. Squaw Creek Coal Co. and Indiana Dept. of Natural Resources
49A05-1104-MI-164
Miscellaneous. Affirms order in favor of Squaw Creek Coal Co. and the Indiana Department of Natural Resources on SCCC’s petition for judicial review on an order issued by the Indiana Natural Resources Commission administrative law judge vacating the DNR’s decision to release certain portions of SCCC’s reclamation bond on its surface mining permit. The trial court did not err by refusing to dismiss SCCC’s petition even though it did not pay a filing fee and SCCC’s process and service was sufficient. The trial court was correct to conclude that Musgrave is not collaterally estopped from challenging the release of the bond on Permit S-008.

Jody Brewster v. State of Indiana (NFP)
49A02-1109-CR-450
Criminal. Affirms conviction of Class D felony theft.

John W. Kimbrough v. State of Indiana (NFP)
45A04-1106-CR-328
Criminal. Affirms four convictions of Class A felony child molesting. Reverses sentencing order and remands to the trial court to enter a sentence as outlined in the opinion. Judge Mathias concurs in part and dissents in part.


 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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