Opinion
1:03-cv-1289-JDT-TAB.
June 29, 2004
ENTRY ON DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter comes before the court on the Defendant's Motion for Partial Judgment on the Pleadings. In the initial pretrial conference on this matter on December 12, 2003, almost all of the issues raised in the Defendant's Motion were deemed moot because they were addressed by the parties' stipulations and the subsequent amendment of the Complaint. One issue remains: whether there is a private right of action for monetary damages under the Indiana Constitution for violations of one of its provisions. Plaintiff contends her rights under Article I, § 11 and § 15 of the Indiana Constitution were violated and that she is permitted to recover damages for the violations. Defendant argues that the constitutional claims should be dismissed because Indiana courts do not recognize private rights of action for damages under the Indiana Constitution. After considering argument from both parties, the court again holds that the Indiana courts do not recognize a private right of action under the sections of the Indiana Constitution asserted by the Plaintiff.
I. Background
Plaintiff brings action against the Defendant, alleging that Defendant violated her rights under Indiana Constitution Article I, § 11 and § 15. Article I, § 11 of the Indiana Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." Ind. Const. art. I, § 11. Article I, § 15 provides: "No person arrested, or confined in jail, shall be treated with unnecessary rigor." Ind. Const. art. 1, § 15.
In exercising supplemental jurisdiction over this state law issue, the court is required to determine the issue presented as it believes the Indiana courts would under the circumstances. See Kutsugeras v. Avco Corp., 973 F.2d 1341, 1346 (7th Cir. 1992) (citing Collins v. Ridge Tool Co., 520 F.2d 591, 595 (7th Cir. 1995)). "`Under the principles of Erie v. Tompkins, a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state.'" Id. (quoting Affiliated FM Ins. Co. v. Trane Co., 831 F.2d 153, 155 (7th Cir. 1987) (citing Erie v. Tompkins, 304 U.S. 64 (1938)), and citing Phelps v. Sherwood Med. Indus., 836 F.2d 296, 306 (7th Cir. 1987)).
In Boczar v. Kingen, No. IP 99-0141-C-T/G, 2000 WL 1137713, at *24-25 (S.D. Ind. Mar. 9, 2000), this court held that there was no implied private right of action under the Indiana Constitution. The court reasoned that it was unlikely that the Indiana Supreme Court would recognize an implied right under the Indiana Constitution because Indiana courts have been hesitant to recognize implied rights of action under statutory law and also because the framers of the Indiana Constitution would not have intended to create such a right because they would have believed sovereign immunity to bar such action. Id.
At the time Boczar was issued, one federal court had held that the Indiana courts would recognize an implied right of action under the Indiana Constitution for violation of the equal protection clause. See Discovery House v. Consol. City of Indianapolis, 43 F. Supp. 2d 997, 1004 (N.D. Ind. 1999). The Discovery House court relied on three Indiana cases for its holding. In Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), the Indiana Supreme Court did not explicitly address the question, but held that the claim failed on the merits. Orr v. Sonnenburg, 542 N.E.2d 201 (Ind.Ct.App. 1989), and Hilburt v. Town of Markleville, 649 N.E.2d 1036 (Ind.Ct.App. 1995), only assumed that an implied right existed, without discussion. This court found the basis for the Discovery House holding unpersuasive; instead the court was persuaded by Judge Hamilton's unpublished opinion in Craig v. Christ, IP 96-1570-C H/G (Entry on Defs.' Mots. for Summ. J. and to Dismiss and City's Mot. to Strike at 5 (Dec. 15, 1998)), in which the court held that it was unwilling to find that an implied right of action was available under the Indiana Constitution until the Indiana courts provided clearer indication that such a right existed.
In the Northern District of Indiana, two district courts have examined the issue since Discovery House. The first, Schele v. Porter Memorial Hospital, 198 F. Supp. 2d 979, 993 (N.D. Ind. 2001) (Springmann, M.J.), permitted the plaintiff's claim under the Indiana Constitution to survive the summary judgment motion. However, the court in Schele held only that it was premature to grant summary judgment for the defendant because the parties did not fully brief relevant issues, including the issue of whether the equal privileges clause of the Indiana Constitution applies both to violations by statutes and violations by state actors. Additionally, one other Northern District opinion in 2004 assumed such an implied right exists, but without discussion. See Kelley v. City of Michigan City, 300 F. Supp. 2d 682 (N.D. Ind. 2004) (Sharp, J.).
Since Boczar, all other opinions to address this issue in the Southern District of Indiana have also been unwilling to hold that an implied right of action exists under the Indiana Constitution without clearer indication from the Indiana courts. See, e.g., Estate of O'Bryan v. Town of Sellersburg, No. 3:02CV00238-DFH-WGH, 2004 WL 1234215, at *21 (S.D. Ind. May 20, 2004) (Hamilton, J.); Malone v. Becher, No. NA 01-101-C H/H, 2003 WL 22080737, at *18-19 (S.D. Ind. Aug. 29, 2003) (Hamilton, J.); Schreiber v. Lawrence, No. 1:02-CV-1319-DFH, 2003 WL 1562563, at *6-7 (S.D. Ind. Mar. 4, 2003) (Hamilton, J.); Bublitz v. Cottey, No. IP 99-167-C-TS, 2002 WL 31242499, at *5 (S.D. Ind. Aug. 8, 2002) (Tinder, J.); Curry v. Consol. City of Indianapolis, No. IP 00-1534-C-T/K, 2002 WL 655705, at *7 (S.D. Ind. Feb. 27, 2002) (Tinder, J.); Willits v. Wal-Mart Stores, Inc., No. IP99-0276-C-M §, 2001 WL 1028778, at *15 (S.D. Ind. July 30, 2001) (McKinney, C.J.); Baker v. Washington Bd. of Works, No. IP 99-0642-C T/G, 2000 WL 33252101, at *8 (S.D. Ind. June 8, 2000) (Tinder, J.).
In Estate of O'Bryan, the most recent opinion from the Southern District, Judge Hamilton reaffirmed his earlier holding in Craig.
[R]ecognizing such an implied right to sue for damages under the Indiana Constitution would work a dramatic change in Indiana law, in the relationships between citizens and their state and local governments, and between those governments and their employees. If such a step is to be taken, it will need to be taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law.Id. at *21 (citing Craig, No. IP 96-1570-C H/G). Judge Hamilton correctly notes that policy implications counsel that a federal district court must be cautious in determining whether a private cause of action exists under the Indiana Constitution. Moreover, nothing in the language of the constitutional provisions at issue, the history of these provisions, or the development of Indiana common law portends that the Indiana courts would recognize an implied right of action for damages under the Indiana Constitution.
II. Plaintiff's Arguments
Plaintiff asks that this court reconsider its holding in Boczar and has raised several arguments criticizing the court's reasoning in the opinion. Plaintiff first argues that comparison of the Indiana courts' unwillingness to find implied rights under statutory law is not predictive of what the courts would do with respect to implied rights under the Indiana Constitution. She argues: "Constitutions are principles and statutes are rules. . . . Statutes, by their nature, are more specific and express. The broader purpose of the constitutions, on the other hand, suggests a wellspring of implied rights rather than express rights in constitutions." Plaintiff's argument focuses only on the differences between constitutional and statutory construction; however, there are both differences and similarities between how Indiana courts interpret statutes and the Indiana Constitution. See State v. Nixon, 384 N.E.2d 152, 156 (Ind. 1979). In Indiana, "many rules of statutory construction are equally applicable to constitutional construction," but the rules are not applied to constitutions with as much rigidity. Id. The Plaintiff, although identifying one difference, has not provided an explanation for why such a difference would persuade the Indiana courts to find an implied right of action under constitutions, but not statutes.On the other hand, shared principles for statutory and constitutional construction make comparison meaningful. The objective of both statutory and constitutional construction is to arrive at the intent of the drafters. Id. The primary object in interpreting the Indiana Constitution "is to ascertain the common understanding as to the meaning of any provision entertained by both those who framed and those who ratified it." Id. at 157 (internal quotations and citations omitted). The Indiana Supreme Court "ordinarily resolves questions that arise under the Indiana Constitution by `examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of [Indiana's] constitution, and case law interpreting the specific provisions.'" Cheatham v. Pohle, 789 N.E.2d 467, 472-73 (Ind. 2003) (quoting Richardson v. State, 717 N.E.2d 32, 38 (Ind. 1999)).
As an aside, nothing in the drafters debates regarding the 1851 Indiana Constitution provides guidance about whether either of the cited sections was intended to supply the basis of a damage action.
Similarly, in determining whether an implied right of action exists under a statutory law, Indiana courts have examined similar factors. Indiana courts begin by examining legislative intent. See Americanos v. State, 728 N.E.2d 895, 897 (Ind.Ct.App. 2000) (citing Bartholomew County Beverage Co. v. Barco Beverage Corp., 524 N.E.2d 353, 356 (Ind.Ct.App. 1988)). To determine legislative intent, Indiana courts have examined such factors as the text of the statute, see, e.g., Stulajter v. Harrah's Indiana Corp., 808 N.E.2d 746, 748-49 (Ind.Ct.App. 2004); Americanos, 728 N.E.2d at 898; Right Reason Publ'ns v. Silva, 691 N.E.2d 1347, 1351-52 (Ind.Ct.App. 1998); Vukovits v. Bd. of Sch. Trs., 659 N.E.2d 174, 179 n. 4 (Ind.Ct.App. 1995); Walling v. Appel Serv. Co., 641 N.E.2d 647, 652 (Ind.Ct.App. 1994); Coons v. Kaiser, 567 N.E.2d 851, 852-53 (Ind.Ct.App. 1991), and also the purpose of the legislation, see, e.g., Americanos, 728 N.E.2d at 898; Borne v. Northwest Allen County Sch. Corp., 532 N.E.2d 1196, 1203 (Ind.Ct.App. 1989).
Moreover, Indiana courts that have looked to the text of a statute to determine legislative intent have construed the text narrowly. The courts have been unwilling to infer legislative intent to create a private right of action when the statute explicitly confers a specific remedy or when there is no explicit indication from the text of the statute that a private right of action was intended. For example, in Stulajter v. Harrah's Indiana Corp., 808 N.E.2d 746, the Indiana Court of Appeals held that no private right of action existed for the violation of Indiana statutes governing the regulation of riverboat gambling, specifically provisions which required casinos to create and honor a self-exclusion list. The Indiana Court of Appeals stated that the proper enforcement of the provision was through the Indiana Gaming Commission, not a private right of action. Id. at 749. The Court explained: "If the legislature intended to create a right to a private cause of action under the Commission rules for riverboat gambling, it could have included such a provision." Id. In Right Reason Publications v. Silva, 691 N.E.2d 1347, the Indiana Court of Appeals held that a statute which imposed criminal penalties for select civil rights violations could not be enforced through a private cause of action. The court reasoned that when a statute provides a particular remedy, a court should not expand the statute to subsume other remedies. It noted that "`[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.'" Id. at 1352 (quoting Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers, 414 U.S. 453, 459 (1974)). Similarly, in Coons v. Kaiser, 567 N.E.2d 851, the Indiana Court of Appeals held that there was no private right of action under legislation that prohibited striking by teachers. The court noted that legislative intent must be determined from the statutory language. Id. at 852 (citing Marsym Dev. Corp. v. Winchester Econ. Dev. Comm'n, 447 N.E.2d 1138 (Ind.Ct.App. 1983)). The court then applied the same principle as the court in Silva — that "`[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.'" Id. (quoting Nat'l R.R., 414 U.S. at 459). The court stated that the statute was clear, and given the absence of legislative history to contradict the clear mandate of the statute, a private cause of action was not intended. Id.
Indiana courts have also refused to find an implied right of action when the statute does not explicitly provide for one. In Vukovits v. Board of School Trustees, 659 N.E.2d 174, the Indiana Court of Appeals noted that there was no implied right of action under the Indiana Staff Performance Evaluation Statute. The court explained that "there is no indication that [the statute] is intended to give teachers a private cause of action or remedy for non-renewal of their contracts." Id. at 179 n. 4. Similarly, in Walling v. Appel Service Co., 641 N.E.2d 647, the Indiana Court of Appeals held that there was no private right of action under a statute that prohibited depositing contaminants on land using methods not approved by the solid waste management board. The court reasoned the express language of the statute demonstrated that only suits "on behalf of the state" were authorized. Id. at 652.
Additionally, in determining whether an implied right of action exists, at least one Indiana court has considered the availability of other remedies to the plaintiff, looking both to state and federal law. See Americanos, 728 N.E.2d at 898 ("If [the plaintiff] believes he was treated differently than the other applicants, such a claim would be more appropriately brought under legislation designed to protect against discrimination such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, or the Indiana Civil Rights Act."). Similarly, in the present case, there are alternative methods of redress for the Plaintiff. As an example, Plaintiff can and has brought action under federal law, such as an action under § 1983.
In summary, while it is true that constitutional principles ought to be applied more broadly than legislative dictates, such a view does not suggest that the Indiana Supreme Court would expansively infer the existence of a monetary damage claim on the basis of Indiana constitutional provisions. It is far more likely that the Indiana Supreme Court would apply a similar approach in examining its own Constitution as it does in scrutinizing statutory enactments when determining whether damage actions can be based on those provisions.
Next, Plaintiff argues that the framers of the Indiana Constitution would have recognized a private right of action under the Constitution. She argues that, given the historical context, sovereign immunity would have been given lower priority in relation to abusive police powers.
The Indiana Supreme Court has noted that § 8 of the 1816 Constitution and § 11 of the 1851 Constitution were both added "without significant debate or change." Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994). An examination of the historical context does not demonstrate that the framers would have intended for the government to be subject to private causes of action under the Indiana Constitution.
The constitutional convention met in late 1850 and early 1851 against a backdrop of problems associated with states' efforts to develop their infrastructures and stimulate economic progress. Beginning in 1836, the State of Indiana had engaged in a general system of internal improvements, issuing bonds which were then sold in the market at a heavy discount, with the resulting money squandered on various railroads and canals, none of which were completed. The bonds greatly depreciated in value, the state's credit was utterly ruined in the money market, and the state abandoned the completion of the improvement projects in 1842. Our legislature then authorized the continuance of these public works by private companies and empowered counties to purchase stock therein, financed by issuing bonds or levying taxes. By 1850, the state had become bankrupt and many of the counties had created heavy and onerous debts.Collins v. Day, 644 N.E.2d 72, 76 (Ind. 1994) (internal quotations and citations omitted). At the time of ratification, the framers, even fearing abusive police powers, would have known that the state government could not afford to pay damages as a result of private suits. In 1972, the Indiana Supreme Court abolished the defense of sovereign immunity against the State. Peavler v. Bd. of Comm'rs, 528 N.E.2d 40, 42 (Ind. 1988) (citing Campbell v. State, 284 N.E.2d 733, 737 (Ind. 1972)). However, there is no question that at the time of the ratification of the Indiana Constitution, the notion of sovereign immunity prevailed.
In further support of her argument, Plaintiff cites Moran v. State, 644 N.E.2d 536, and Peterson v. State, 674 N.E.2d 528 (Ind. 1996), cert. denied, 525 U.S. 1108 (1999). She points out that in Moran the Indiana Supreme Court stated that the framers of the State Constitution, like the framers of the United States Constitution, intended to protect against "abuses of the police power like those experienced at the hands of the British during colonial times." Moran, 644 N.E.2d at 539. However, the fact that the framers of the Indiana Constitution would have been concerned with abuse of police power does not mean that they would have recognized a private right of action. Aside from private damages, § 11 of the Indiana Constitution offers other protections against abusive police power, including the right to suppression of evidence that is gathered against an individual as a result of a constitutional violation. In Moran, for example, the defendant brought a motion to suppress evidence and testimony relating to a warrantless search and the execution of a search warrant, both of which were alleged to have been in violation of the defendant's rights under the Fourth Amendment of the United States Constitution and § 11 of the Indiana Constitution. Similarly, in Peterson, the defendant argued that a shotgun introduced into evidence was obtained in violation of his federal and state constitutional rights to be free from unreasonable search and seizure.
Next, Plaintiff offers reasons for why Indiana courts should recognize an implied right of action. The Plaintiff argues the Indiana Constitution affords rights not found under the federal constitution and that the danger of not recognizing an implied right of action under the Indiana Constitution is that a litigant who may lose in federal court may win in state court. Additionally, the Plaintiff argues that state constitutional analysis may result in a different outcome than federal constitutional analysis, again, presenting the same danger that a litigant who may lose in federal court may win in state court. Although these may be persuasive arguments for why the Indiana courts may someday decide to recognize an implied right of action under § 11, it does not change the fact that, as of today, they have not. See, e.g., Young v. Ind. Dep't of Natural Res., 789 N.E.2d 550, 559 n. 5 (Ind.Ct.App. 2003) (stating that question of whether implied right of action exists under Indiana Constitution need not be addressed because issue was resolved on other grounds). Furthermore, as discussed above, even if § 11 of the Indiana Constitution affords more or different rights to individuals than the federal constitution, individuals are able to receive the benefits of the protection of both constitutions through other remedies, including suppression of evidence at the criminal proceeding.
Finally, Plaintiff contends that the Indiana cases weigh more in favor of recognition of an implied right of action than they do against. Plaintiff argues that "If the Indiana courts were more likely to deny than recognize a right of action under the Indiana Constitution, they would have done so" and that "[t]he Indiana courts have effectively recognized such a right by their very acquiescence." As this court stated in Boczar, the court will not hold that there exists an implied right of action under the Indiana Constitution without clearer indication from the Indiana courts that such rights exist. Furthermore, as discussed above, there are reasons to infer from the Indiana courts' silence on this issue that the courts would not recognize an implied right under the Indiana Constitution.
III. Conclusion
For the foregoing reasons, Defendant's Motion for Partial Judgment on the Pleadings for Plaintiff's claims under the Indiana Constitution will be GRANTED.ALL OF WHICH IS ORDERED.