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Opinions Sept. 10, 2010

September 10, 2010
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7th Circuit Court of Appeals
Joseph Finch, David E. Hensley, and Peter W. Mungovan v. Bart Peterson, individually and in his official capacity, et al.
09-2676
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Debra McVicker Lynch.
Civil. Affirms denial of the city officials’ motion for judgment on the pleadings in a suit filed by three white officers alleging discrimination in promotions. The 1978 consent decree between the Indianapolis Police Department and the U.S. Department of Justice does not operate to confer qualified immunity on city officials who were involved in making the challenged promotions. Nothing in the decree required them to take race into consideration when making promotions.

Indiana Supreme Court
Lyn Leone, et al. v. Commissioner, BMV
49S02-0910-CV-505
Civil. Affirms denial of preliminary injunction sought by the plaintiffs to prevent the BMV from revoking driver’s licenses when the names from BMV and Social Security Administration records do not match. The class hasn’t shown a likelihood of success. Dissolves the preliminary injunction entered by the Indiana Court of Appeals as a stay pending appeal.
 
Indiana Court of Appeals
Charles Adam Trotter v. State of Indiana
29A02-0910-CR-974
Criminal. Reverses denial of motion to suppress and the grant of the state’s motion to clarify. The trial court ruled that although the warrantless entry into the residence was unconstitutional, the suppression of the evidence wasn’t necessary based upon the doctrine of attenuation. The warrantless entry violated both federal and state constitutions. The proper remedy for the constitutional violation is the suppression of evidence. Remands for further proceedings.  

Crown Coin Meter Company, et al. v. Park P, LLC  
34A02-1002-PL-185
Civil plenary. Reverses summary judgment in favor of Park P in its complaint to quiet title and seeking a declaratory judgment that the lease between Crown Coin and the prior owner of the apartment building is void as to Park P. There is a genuine issue of material fact as to whether Park P had actual implied notice of Crown Coin’s outstanding rights at the time Park P purchased the property and whether Park P was a bona fide purchaser. Remands for further proceedings.

Eclipse Consulting, Inc. v. Community Bank (NFP)
29A05-0912-CV-696
Civil. Affirms grant of partial summary judgment in favor of Community Bank in Eclipse’s suit alleging breach of contract, fraud, conversion and bad faith. Remands for proceedings.

David L. Howard v. State of Indiana (NFP)
46A03-0907-CR-299
Criminal. Affirms conviction of and 65-year sentence with five years suspended to probation for murder.

Jeanette Haggard v. Brent Boyd (NFP)
32A04-1001-DR-33
Domestic relation. Affirms granting the dependent tax exemption to Boyd. Reverses calculation of the amount of child support Boyd has overpaid since he filed his petition to modify and remands with instructions to amend its order on father’s petition to modify custody and support accordingly.

D.L.S. v. J.S. (NFP)
85A02-0910-CV-985
Civil. Affirms order granting physical custody of D.S.’s children to mother J.S.

Edna Taylor Living Trust v. Kokomo/Howard County Plan Comm. (NFP)
80A05-1004-PL-289
Civil plenary. Affirms summary judgment in favor of the commission on the Taylor Trust’s complaint for mandate.

Chance Ross Carper v. State of Indiana (NFP)
48A05-1002-CR-96
Criminal. Affirms revocation of probation.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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