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Opinions Sept. 13, 2011

September 13, 2011
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7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.

The Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Yasin Hory v. State of Indiana
01A04-1011-IF-717
Infraction. Affirms conviction of Class C infraction illegal parking, holding that Hory failed to establish an express or implied pre-emption of local traffic safety laws by federal motor safety regulations.

Gary R. Shepherd v. Linda S. (Shepherd) Tackett
72A01-1012-DR-692
Domestic relations. Affirms trial court’s post-dissolution order modifying the parties’ property division as stated in the Decree of Dissolution, holding that the order clarified the property division, but did not make substantial changes to the decree.

Mauel Gaeta; Roche Surety & Casualty v. State of Indiana
79A02-1011-CR-1196
Criminal. Affirms trial court’s decision finding Roche Surety & Casualty liable for Gaeta’s bond. On cross-appeal from the state, holds the trial court erred in not finding Roche Surety liable for forfeiture of 20 percent of the bond’s face value, and remands to the trial court for judgment consistent with its opinion.  

Zachariah D. Reese v. State of Indiana
38A05-1104-CR-171
Criminal. Reverses denial of Reese’s request for court-appointed counsel, holding that the record shows that Reese lacked the means to hire an attorney. Remands for a new indigency determination and new trial.

Charles David Kelly v. National Attorneys Title Assurance Fund
69A04-1104-CT-215
Civil tort. Affirms trial court’s grant of summary judgment in favor of National Attorneys Title Assurance Fund, holding undisputed facts support the trial court’s judgment.

Joseph N. Meade v. Kathleen F. Meade (NFP)
64A03-1101-DR-56
Domestic relation. Reverses trial court’s modification of child support, holding the court abused its discretion in failing to pro rate Kathleen Meade’s severance pay when it reduced her obligation to $100 per week. Remands to the trial court for proceedings consistent with opinion.

Janice A. Devlin and Kenneth F. Devlin v. AC Roofing, Inc. and Arnold W. Cook (NFP)
34A02-1012-MI-1375
Miscellaneous. Reverses trial court’s denial of the Devlins’ motion to dismiss pursuant to Trial Rule 12(B)(8). Remands for further proceedings.

Robert A. Predaina v. State of Indiana (NFP)
45A03-1006-CR-348
Criminal. Affirms conviction of Class A misdemeanor criminal mischief.

Shannon Saddler v. State of Indiana (NFP)
49A02-1102-CR-120
Criminal. Reverses sentence for Class A misdemeanor criminal mischief, holding the trial court abused its discretion in requiring Saddler to pay restitution before sentencing her.

Jerry Craig v. State of Indiana (NFP)
49A02-1012-CR-1421
Criminal. Affirms trial court’s denial of Craig’s motion to correct erroneous sentence.

Ross Pushor v. State of Indiana (NFP)
03A05-1011-CR-706
Criminal. Affirms trial court’s order revoking probation.

Indiana State Board of Dentistry v. Julia Francis (NFP)
55A01-1101-PL-28
Civil plenary. Vacates trial court’s denial of Indiana State Board of Dentistry’s motion to dismiss, holding the court did not have the jurisdiction to hear Francis’ appeal. Accordingly, the appeals court did not address subsequent issues outlined in the appeal.

James E. Sims v. State of Indiana (NFP)
02A04-1101-CR-94
Criminal. Affirms aggregate sentence for Class D felony attempted theft and Class A misdemeanor criminal mischief.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. 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.

  2. 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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