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Opinions Nov. 29, 2010

November 29, 2010
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7th Circuit Court of Appeals
American Bank v. City of Menasha, et al.
10-1963
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Theresa L. Springmann.
Civil. Reverses judgment granting a stay requested by Menasha to give American Bank certain records available pursuant to Wisconsin’s Public Records Law. The bank, a plaintiff in a class-action suit charging the city violated federal securities law, requested the documents after the suit was filed. The stay is not a stay of a discovery order and can only be an injunction; only a stay of discovery is authorized by the Securities Litigation Uniform Standards Act of 1998.

Louquetta O’Connor-Spinner v. Michael Astrue, Commissioner of Social Security
09-4083
U.S. District Court, Southern District of Indiana, New Albany Division, Judge David F. Hamilton.
Civil. The administrative law judge’s hypothetical did not supply the vocational expert with information adequate to determine whether O’Connor-Spinner could perform jobs in the national economy. The ALJ also did not address potentially important evidence that she has difficulty taking instructions and responding appropriately to supervisors. Remands for further proceedings.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Donnie Salyer v. State of Indiana
75A05-1003-CR-164
Criminal. Affirms denial of Salyer’s motion to suppress evidence obtained during a search of his residence. The incorrect address information on the warrant did not invalidate it because the executing officer knew the precise location of Salyer’s home, prepared the search warrant and accompanying affidavit, and executed the search warrant.

Walker Whatley v. State of Indiana
49A02-1007-CR-839
Criminal. Affirms dismissal of motion for re-trial under Indiana Trial Rule 60(B). Based upon Whatley’s motion and the dates of his attached documents, he didn’t demonstrate that the alleged newly discovered evidence could not have been discovered by due diligence in time for him to move for a motion to correct error under Rule 59.

S.D. v. State of Indiana
49A02-1004-JV-442
Juvenile. Reverses adjudication for what would be Class C felony child molesting if committed by an adult. The juvenile court erred by admitting S.D.’s confession because he had not been given meaningful consultation with his guardian as required by Indiana’s juvenile waiver of rights statute.

John D. Hemmings v. State of Indiana (NFP)
63A01-1003-CR-162
Criminal. Affirms conviction of and sentence for Class B felony sexual misconduct with a minor.

John V. Guthrie, Jr. v. State of Indiana (NFP)
45A03-1003-CR-166
Criminal. Affirms convictions of Class A felony child molesting and Class C felony child molesting.

James M. Sampson v. State of Indiana (NFP)
49A02-1003-CR-355
Criminal. Affirms sentence for Class D felony residential entry.

Rafael A. DeJesus v. State of Indiana (NFP)
20A03-1002-CR-95
Criminal. Affirms convictions of Class A felony dealing in cocaine.

Michael Nuckols v. State of Indiana (NFP)
49A02-1002-CR-202
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

Travis W. Jackson v. State of Indiana (NFP)
33A04-1006-CR-398
Criminal. Dismisses appeal of validity of guilty plea to Class D felony stalking and Class A misdemeanor resisting law enforcement.

Bruce D. Seal v. Lori L. Seal (NFP)
48A04-0912-DR-750
Domestic relation. Affirms awarding attorney’s fees to Lori but reverses awarding a pension plan solely to Lori. Remands for further proceedings.

Paternity of F.B.; P.B. v. J.M. (NFP)
55A04-1006-JP-360
Juvenile. Reverses finding that P.B. was in contempt and remands with instructions to vacate its original order in this regard. Affirms modified support order reducing his support obligation to $54 per week. The trial court did not abuse its discretion in imputing a $400 a week income to the father based on his previous income of $470 a week.

Cody Lewellen and Cody Dallas v. Brandon Cessna (NFP)
80A05-1005-CT-330
Civil tort. Affirms denial of Lewellen’s Indiana Trial Rule 60(B) motion to set aside default judgment in a personal injury action filed by Cessna.

Eric Hall v. State of Indiana (NFP)
49A05-1003-CR-244
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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