Opinions

7th Circuit Court of Appeals
The following opinion was posted after IL deadline Tuesday:
United States of America v. Eugene Clarke
14-3515
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division
Judge Rudy Lozano
Criminal. Affirms conviction for seven counts of filing a false claim with the United States in violation of 18 U.S.C. 287. Rules the government did not have to prove Clarke willfully submitted false claims. Finds Clarke’s “patently false and utterly groundless” tax returns provided sufficient evidence that he knew he was filing claims with false information. Concludes the District Court did not abuse its discretion when it refused to give Clarke’s good faith instruction to the jury.

Indiana Court of Appeals
Deonte R. Hester v. State of Indiana (mem. dec.)
82A01-1411-CR-515
Criminal. Affirms 30-year aggregate sentence and convictions of Class A felony possession of cocaine, Class C felony operating a vehicle while privileges are forfeited for life and Class A misdemeanor counts of resisting law enforcement and possession of marijuana.

7th Circuit Court of Appeals
Grace Schools, et al., and Diocese of Fort Wayne-South Bend, Inc., et al. v. Sylvia Mathews Burwell, et al.
14-1430-1431
Appeals from the U.S. District Court for the Northern District of Indiana
Judge Jon De Guilio
Civil. Reverses preliminary injunction in favor of the plaintiffs, preventing the federal government from enforcing the “contraceptive mandate” of the Patient Protection and Affordable Care Act. However, extends the injunction for 60 days to allow the District Court the time to address additional arguments made by the parties. Finds the accommodation does not impose a substantial burden on the plaintiffs’ religious beliefs. Judge Daniel Manion dissents, arguing nonprofits have shown accommodation violates the federal Religious Freedom Restoration Act.

Indiana Court of Appeals
Memory Gardens Management Corporation, Inc. v. Liberty Equity Partners, LLC, and Old Bridge Funeral Home, LLC
49A02-1501-CC-1
Civil collection. Affirms grant of the Old Bridge parties’ motion for summary judgment and affirms the denial of Memory Gardens’ cross-motion for summary judgment. Remands to decide reasonable appellate attorney fees. Finds Memory Gardens’ failure to object to receiver’s final report forever bars it from claiming the $450,000 demand note. Also rules receiver abandoned Memory Gardens’ claims for the demand note.

Indiana Supreme Court
David Anderson, Joe Wray, John Kennard, Commissioners, and Board of Trustees, Brown County Fire Protection District v. Susanne Gaudin, Janet Kramer, and Ruth Reichmann
07S01-1505-PL-284
Civil plenary. Reverses summary judgment finding that a county board of commissioners lacked authority to amend an ordinance that previously established a countywide fire protection district. Majority concludes that under the Home Rule Act, boards of county commissioners are authorized to amend fire protection districts, even if an amendment dissolves the district. The opinion written by Justice Brent Dickson was joined by Justice Mark Massa and Chief Justice Loretta Rush; Justice Steven David concurred with a separate opinion. Justice Robert Rucker dissented and would affirm the trial court judgment in favor of property owners.

7th Circuit Court of Appeals
Neal D. Secrease Jr. v. The Western & Southern Life Insurance Co., et al.
15-1328.
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division
Judge Jane Magnus-Stinson
Civil. Affirms District Court dismissal with prejudice of Secrease’s sex and age discrimination and retaliation complaints. While the sanction of dismissal with prejudice is severe, it is justified in this case where Secrease attempted to perpetrate a fraud on the court by submitting a purported employment contract that contained an arbitration agreement that was not a provision in the contract he signed.
 

7th Circuit Court of Appeals
Michael A. Kelley v. Greg Zoeller, Indiana Attorney General
14-2961
Appeal from the U.S. Court for the Northern District of Indiana, Hammond Division
Judge Theresa L. Springmann
Affirms the District Court’s dismissal for lack of jurisdiction of Kelley’s suit alleging that under a plea deal struck in a robbery case in 1975, his conviction should have been expunged. No expungement statute existed then, and Indiana courts have determined that Kelley waited too long to challenge the 1975 robbery conviction.

7th Circuit Court of Appeals
JMB Manufacturing Inc., d/b/a/ Summit Forest Products Co. v. Child Craft, LLC, et al
14-3306
Harrison Manufacturing, LLC, f/k/a Child Craft, LLC v. Ron Bienias
14-3315
Civil tort. Reverses judgment on Child Craft’s negligent misrepresentation counterclaim against Bienias and Summit. Directs the District Court to enter final judgment in favor of Bienias and Summit on that counterclaim. Affirms dismissal of Child Craft’s breach of contract against Summit and Summit’s claims against Child Craft.  

Indiana Supreme Court    
In Re the Involuntary Term. of the Parent-Child Relationship of K.E., a Minor Child, and His Father, J.E., and His Mother, S.S. v. Ind. Dept. of Child Services
82S04-1508-JT-491
Juvenile. Reverses termination of parental rights of J.E. to his son, K.E. Finds although J.E. is currently incarcerated, he has taken steps to improve himself, address his drug addiction and bond with his child. Concludes the evidence is not sufficient to support the reasonable probability that the conditions that led to K.E.’s removal are unlikely to be remedied or that J.E. poses a threat to the child.

7th Circuit Court of Appeals
The following opinion was filed after IL deadline Wednesday:
Jeffrey Allen Rowe v. Monica Gibson, et al.
14-3316
Appeal from the U.S. District Court, Southern District of Indiana, Indianapolis Division
Judge Sarah Evans Barker
Civil. Affirms in part, reverses in part and remands. Affirms summary judgment in favor of prison defendants on most claims of deliberate indifference to inmate Rowe’s claim of pain for being denied Zantac to treat esophageal reflux, but reverses as to Dr. William Wolfe, a contract physician at the Department of Correction. Also reverses summary judgment in favor of two defendants on Rowe’s claim of retaliation. Judge Richard Posner wrote for the majority joined in a separate concurrence by Judge Ilana Rovner that the District Court erred in granting summary judgment on those it reversed, finding that Rowe’s claims of pain, the timeline of his inability to obtain Zantac and the limited Internet research the judge undertook substantiated disputes that could not be disposed on summary judgment. Judge David Hamilton would allow Rowe’s retaliation claims to proceed, but not his deliberate indifference claims. The majority’s independent research was “an unprecedented departure from the proper role of an appellate court” that “runs contrary to long-established law and raises a host of practical problems the majority fails to address,” Hamilton wrote.

7th Circuit Court of Appeals
Kyle D. Alaura v. Carolyn W. Colvin
15-1727
Appeal from the U.S. District Court for the Northern District of Indiana, Fort Wayne Division
Chief Judge Philip P. Simon
Agency action. Reverses denial of application for total disability benefits, which was premature, and remands to the District Court for further consideration of Alaura’s claim.

7th Circuit Court of Appeals
Carlton Hart v. Christine Mannina, et al.
14-1347
Appeal from the District Court for the Southern District of Indiana, Indianapolis Division
Judge William T. Lawrence
Affirms grant of summary judgment in favor of Mannina, an Indianapolis Metropolitan Police Department detective, and other police defendants. Hart was arrested in a murder investigation recorded for the reality television series “The Shift,” but charges later were dismissed. He sued police and the city claiming various violations of his constitutional rights. Because police had probable cause to arrest him, summary judgment in favor of the defendants was neither an abuse of discretion nor actual and substantial prejudice.

7th Circuit Court of Appeals
Rebecca Riker v. Bruce Lemmon, in his official capacity, et al.
14-2910
Appeal from the United States District Court for the Southern District of Indiana
Judge Tanya Walton Pratt
Civil. Reverses District Court grant of summary judgment in favor of defendants on Riker’s claim that she was improperly denied permission to marry a Department of Correction inmate. Riker is a former contract employee at Wabash Valley Correctional Facility who was terminated after a sexual relationship with an inmate. The District Court erred in granting summary judgment and concluding the DOC’s denial of her request for a one-time visit to participate in a marriage ceremony did not violate her constitutional right to marry.

7th Circuit Court of Appeals
Robert E. Spierer, et al. v. Corey E. Rossman, et al.
14-3171
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division
Judge Tanya Walton Pratt
Civil. Affirms summary judgment in favor of defendants sued by the family of missing Indiana University student Lauren Spierer. Plaintiffs failed to state a plausible claim under Indiana common law for negligence.

7th Circuit Court of Appeals
Wayne Kubsch v. Ron Neal, superintendent, Indiana State Prison
14-1898
Appeal from the U.S. District Court, Northern District of Indiana, South Bend Division
Chief Judge Philip Simon
Criminal. Affirms denial of Kubsch’s habeas corpus petition. Majority rules the exclusion of testimony by neighbors which could have exonerated Kubsch was hearsay and, therefore, not admissible. In a dissent, Chief Judge Diane Wood argues the testimony should have been admitted under Chambers v. Mississippi, 410 U.S. 284 (1973).

Indiana Court of Appeals
Fifty Six LLC, individually and, alternatively, in the name of the State of Indiana on relation of Fifty Six LLC v. The Metropolitan Development Commission of Marion County
49A05-1407-PL-323
Civil plenary.  Reverses and remands denial of landowner Fifty Six LLC’s motion to correct error and granting of the development commission’s cross motion for summary judgment regarding the adoption of the Millersville Plan to guide development of a northeast-side Indianapolis community. Fifty Six had standing to challenge the Millersville plan and the MDC did not comply with required notice and hearing provisions before the hearing on the Millersville Plan’s adoption. Remanded for proceedings.

Indiana Court of Appeals
LHO Indianapolis One Lessee, LLC v. Esther Bowman, Individually and on Behalf of Other Similarly Situated Individuals
49A02-1411-CT-811
Civil tort. Reverses the trial court’s certification of a class defined by Bowman. Finds members of the class did not meet the requirement of Indiana Trial Rule 23(B)(3) by showing their illnesses were caused by eating the same contaminated food. Remands with the options of either redefining the class under Indiana Trial Rule23(C)(4)(a) or continuing under T.R. 23(B)(3) with respect to the hotel’s general liability only. 

7th Circuit Court of Appeals
United States of America v. Dennis R. Williams and Leslie Ann Williams and Indiana Dept. of Revenue and Clark County Indiana
13-2359
Appeal from U.S. District Court, Southern District of Indiana, New Albany Division
Chief Judge Richard Young
Civil. Affirms order the property belonging to the Williamses be sold and the receipts divided among the Internal Revenue Service, the state of Indiana and Clark County. Finds the U.S. secretary of the treasury did authorize the proceedings and the attorney general did direct the action to commence. Holds the Williamses did receive notification of the amount of taxes they owed. Rules the state and county claims belong in the proceeding. Concludes the District Court’s decision is sensible and not an abuse of discretion.

7th Circuit Court of Appeals
The following opinion was posted after IL deadline Thursday
United States of America v. Jeffrey P. Taylor
14-3790
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division
Judge Rudy Lozano
Criminal. Vacates sentence for Taylor convicted in 2007 of attempted transferring obscene materials to minors and remands to the District Court to remove a special condition of probation barring Taylor from viewing otherwise legal adult pornography. Taylor must make all Internet-accessible devices available for inspection without reasonable suspicion. A ban on contact with minors is overly broad. Judge David Hamilton concurred in part but dissented on lifting the pornography ban, finding no abuse of discretion. Judge Frank Easterbrook concurred separately to cite jurisdictional conflicts.

7th Circuit Court of Appeals
United States of America v. Sandra McGuire
14-3545
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division
Judge James Moody
Criminal. Dismisses appeal over the denial of McGuire’s motion to withdraw a guilty plea to money laundering for depositing $2,200 in drug proceeds into her checking account. McGuire’s plea agreement included a waiver of appeal, and this applies to her motion to withdraw the plea after it was accepted but before she was sentenced.