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Opinions Oct. 18, 2011

October 18, 2011
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7th Circuit Court of Appeals
Bruce Barton v. Zimmer Inc.
10-2212
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment for Zimmer Inc. on Barton’s claims for discrimination and retaliation in violation of the Age Discrimination in Employment Act and for interference with his right to reinstatement under the Family Medical Leave Act. Barton’s ADEA claims fail for lack of causation and any available remedy. There is also no evidence of retaliation, and he has no claim under FMLA because when Barton returned to work after his medical leave, the company assigned him equivalent duties without regard to his medical leave.

Indiana Supreme Court
Nathan Brock v. State of Indiana
38S02-1101-CR-8
Criminal. Affirms conviction of Class C felony operating a motor vehicle after forfeiture of driving privileges for life. Although Brock did not consent to a mistrial, his second trial didn’t violate the Double Jeopardy Clause of the Fifth Amendment because the trial court did not abuse its discretion in concluding that a mistrial was justified by manifest necessity.

Jeffery W. Cain v. State of Indiana
17S00-1008-CR-684
Criminal. Affirms convictions of murder and armed robbery and Cain’s sentence of life without parole. The trial court was within its discretion to deny Cain’s motion to exclude a witness’ testimony. A statement made by the prosecutor during her closing argument was not fundamental error.

Indiana Court of Appeals
Espiridion Estudillo v. Maria E. Estudillo
91A02-1102-DR-97
Domestic relation. Affirms property division following dissolution proceedings. The trial court did not abuse its discretion in considering the husband’s interest in property he titled to his adult daughter when dividing the marital estate nor when it determined two cars were not marital property. The trial court didn’t err by determining the extensive evidence of dissipation justified an unequal distribution of the marital property.

Gregg Miller v. America's Directories Inc. and Studio A Advertising and Marketing (NFP)
71A04-1011-CT-738
Civil tort. Affirms summary judgment for America’s Directories Inc. and Studio A Advertising and Marketing on Miller’s wrongful termination claim.

Joaquin Starks v. State of Indiana (NFP)
82A01-1006-CR-266
Criminal. Affirms conviction of felony murder.

Justin A. Van Brunt v. State of Indiana (NFP)
59A01-1104-CR-177
Criminal. Reverses sentence following guilty plea to three counts of Class B felony burglary and three counts of Class D felony theft. Reduces sentence to 10 years.

Timothy Platt v. Indianapolis Public Transportation Corporation (NFP)
49A02-1105-CT-417
Civil tort. Affirms order dismissing Platt’s petition for “declaration of rights & status” regarding a contract.

Indiana Tax Court had posted no opinions at IL deadline.
 
 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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