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Opinions Oct. 31, 2013

October 31, 2013
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7th Circuit Court of Appeals
Mark Suesz, individually and on behalf of a class v. Med-1 Solutions LLC
13-1821
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal of Suesz’s complaint that Med-1 Solutions violated the Fair Debt Collection Practices Act after obtaining a favorable judgment against him in Marion County Small Claims Court in Pike Township because he neither lived nor signed the contract in that township. Small claim courts are not judicial districts for purposes of the FDCPA. Judge Posner dissents.

Katherine Cerajeski, guardian for Walter Cerajeski v. Greg Zoeller, Attorney General of the State of Indiana, et al.
12-3766
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Jane Magnus-Stinson. Reverses dismissal of lawsuit challenging the constitutionality of part of the Indiana Unclaimed Property Act on the ground it authorizes the state to confiscate private property without any compensation to the owner. Interest on a bank account is considered property the owner is entitled to claim.

Indiana Supreme Court
Robert Bowen v. State of Indiana
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/october/10311301per.pdf
08S02-1306-CR-423
Criminal. Grants rehearing for the limited purpose of modifying the remand instructions to expand them since the judge who originally sentenced Bowen is no longer on the bench. Denies Bowen’s request that the case be remanded for imposition of concurrent sentences.

Indiana Court of Appeals
Gary Tibbs v. State of Indiana
49A05-1210-CR-517
Criminal. Affirms convictions of two counts of Class A felony child molesting, three counts of Class B felony child molesting and one count each of Class D felonies intimidation and child solicitation. The prosecutor’s comments did not amount to fundamental error as the comment was merely one upon the evidence, which is permitted during closing argument.

Michael R. Houston v. State of Indiana
02A03-1303-CR-84
Criminal. Reverses conviction of Class D felony possession of cocaine due to insufficient evidence. The state did not prove Houston had constructive possession of the drug.

A.C. v. N.J.
20A04-1301-DR-37
Domestic relation. Reverses ruling that A.C. does not have standing to seek visitation of a child that her domestic partner gave birth to. Remands with instructions to reconsider A.C.’s request for visitation under the standard set forth in third-party visitation cases. Affirms denial of request for joint custody.


Richard Prancik, b/n/f, Renee Prancik v. Oak Hill United School Corporation
27A05-1302-CT-86
Civil tort. Affirms summary judgment to Oak Hill on Prancik’s claim that the school corporation breached a duty to him when a fellow student assaulted him. The teacher was acting in accordance with reasonable protocol for supervising students at the time of the incident, neither she nor the school were on any kind of notice that K.M. could be violent, either generally or towards Prancik specifically, and he and Prancik were left unsupervised at most for a mere matter of minutes.

Courtney Glenn v. State of Indiana
49A04-1302-CR-79
Criminal. Affirms convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. Glenn’s feet-dragging and multiple attempts to pull away from the arresting officer were forcible resistance, and her actions were likely to result in serious bodily injury. Finds no double jeopardy violations.

David Wise v. State of Indiana
49A02-1301-CR-1
Criminal. Dismisses Wise’s interlocutory appeal of the order denying his pre-trial motion in limine to exclude evidence regarding video recordings of video files found on his mobile phone. The motion to certify was deemed denied by operation of Ind. Appellate Rule 14(B)(1)(e).

Tin Thang v. State of Indiana
49A04-1303-CR-110
Criminal. Reverses conviction of Class B misdemeanor public intoxication because the evidence is insufficient to establish that the intoxicated Thang alarmed another person within the meaning of the statute or endangered either his life or another person’s life.

George Small v. State of Indiana (NFP)
49A05-1304-CR-179
Criminal. Affirms conviction and sentence for Class D felony battery by bodily waste.

James Tinzley v. State of Indiana (NFP)
49A02-1303-CR-267
Criminal. Affirms conviction of Class A misdemeanor battery.

Gerald M. Joyce v. State of Indiana (NFP)
49A02-1302-CR-120
Criminal. Affirms convictions of Class C felony burglary and Class D felony theft.

In Re The Marriage of Brian C. Dickerson v. Shannon Dickerson (NFP)
32A04-1211-DR-579
Domestic relation. Affirms award of spousal maintenance to Shannon Dickerson; assignment of certain firearms to Shannon in the property division; finding that Brian Dickerson is in arrears in his child support obligation; conclusion that Shannon had not improperly diverted payments made pursuant to the provisional order; and conclusion that Brian’s military pension is not a marital asset. Remands with instructions to consider evidence and establish the amounts of Brian’s child support arrearage and the Lowe’s debt, the latter of which was assigned to Shannon.

In the Matter of A.G.(Minor Child), A Child Alleged to be a Child in Need of Services J.G.(Mother) v. Indiana Department of Child Services (NFP)
34A02-1306-JC-514
Juvenile. Dismisses appeal of CHINS finding as it is not a final appealable order.

Andre C. Greene v. State of Indiana (NFP)
02A03-1304-CR-161
Criminal. Affirms sentence following guilty plea to Class D felony domestic battery.

Bryce Leighton v. State of Indiana (NFP)
53A04-1303-CR-106
Criminal. Affirms sentence following guilty plea to Class B felony causing death when operating a motor vehicle with an ACE of 0.15 or more, Class D felony auto theft and Class D felony theft.

In the Matter of Custody of: L.T. and A.B., minor children, R.L. and P.L. v. A.B. and R.B. (NFP)
39A05-1305-MI-235
Miscellaneous. Affirms dismissal of the grandparents’ petition to modify custody.

Charles L. Hubbell v. State of Indiana (NFP)
20A04-1303-CR-145
Criminal. Affirms conviction of Class D felony failure to register as a sex offender.

Kevin James Porter v. State of Indiana (NFP)
71A03-1303-CR-94
Criminal. Affirms conviction of Class C felony burglary.

James Averitte v. State of Indiana (NFP)
49A04-1303-CR-119
Criminal. Affirms conviction of Class B misdemeanor harassment.

Steven Wilson v. State of Indiana (NFP)
33A04-1304-CR-189
Criminal. Affirms the seven-year habitual substance offender enhancement of Wilson’s two-and-a-half year sentence for Class D felony operating a vehicle while intoxicated.

In Re the Contempt of Dorothy Davis v. State of Indiana (NFP)
49A05-1307-CR-337
Criminal. Affirms imposition of 180-day sentence for indirect contempt after not appearing as a trial witness in court.

Sharon Jasinski v. Mirian Brown (NFP)
45A03-1212-SC-552
Small claim. Affirms $6,000 judgment in favor of Brown in a small claims action to recover property damages and loss of use damages after an auto accident.

Steven L. O'Bryant v. State of Indiana (NFP)
75A03-1301-CR-3
Criminal. Affirms convictions of four counts of Class A felony child molesting.

Jeffrey E. Howell v. State of Indiana (NFP)
33A01-1305-MI-245
Miscellaneous. The trial court had subject matter jurisdiction to consider Howell’s claims and therefore erred when it denied Howell’s motions on jurisdictional grounds. Moreover, the Sex Offender Management and Monitoring program’s requirements that Howell admit guilt and/or submit to a polygraph violate the Fifth Amendment. Remands with instructions to enter an order granting Howell’s renewed motion for restoration of credit time and class and to enter an order enjoining the DOC from requiring Howell to incriminate himself as part of the SOMM program.

Lyle B. Steele v. Asbury Glen Homes (NFP)
48A02-1209-SC-768
Small claim. Affirms judgment in favor of Asbury Glen Homes on its claim for damages and against Steele on his counterclaim for damages.

George Abel v. State of Indiana (NFP)
49A02-1206-PC-487
Post conviction. Affirms denial of petition for post-conviction relief.

The Indiana Tax Court posted no opinions by 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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