Opinion
Cause No. IP97-2013-C-D/F, Cause No. IP97-2013-C-F/D.
September 15, 1999.
ENTRY on Defendants' Motion for Clarification (doc. no. 95).
In its July 15, 1999 Entry on summary judgment, the Court found that, despite the literal language of the First Amended Complaint, the plaintiffs were asserting their claims under the Indiana Constitution and Indiana Code § 35-33-5-7(e) against the individual defendants, not just the Sheriff of Marion County in his official capacity. Entry on Defendants' Motion for Summary Judgment (doc. no. 94), p. 5, n. 9. The defendants filed the above-entitled motion seeking clarification of the Court's holding because it was their understanding that all of the plaintiffs' state law claims were asserted only against the Sheriff officially and it therefore appeared to them that the Court was sua sponte amending the plaintiff's complaint. At the August 31, 1999 pretrial conference, the plaintiffs gave their oral response to the motion and discussion was had on the issues.
In their original complaint, the plaintiffs asserted claims against the defendants under the Fourth Amendment of the United States Constitution; Article I, § 11 of the Indiana Constitution; Indiana Code § 35-33-5-7(d) and (e); and the state common law of trespass, false arrest, battery, and confinement. The Complaint did not associate specific defendants with specific claims. The individual defendants moved for partial judgment on all of the plaintiffs' state law claims on the ground that Indiana Code § 34-13-3-5(a) permits actions against only the responsible government agency when defendant employees are alleged to have acted within the scope of the employees' employment and the plaintiffs have consistently so alleged. (Motion for Partial Judgment on the Pleadings (doc. no. 10), p. 1; Memorandum in Support of Partial Judgment on the Pleadings (doc. no. 11), pp. 5-6.) After the plaintiffs failed to file any response, the district judge granted the defendants' motion, writing in relevant part:
Insofar as the plaintiffs assert pendent state law claims against defendants Tomey, Buckner, and McAtee, such claims are extinguished under Indiana law by a portion of the Indiana Tort Claims Act, Ind. Code § 34-4-16.5-5 [now § 34-13-3-5(a)]. This provision renders a tort claim against the government entity involved, in this case Marion County, the exclusive remedy. Weber v. City of Fort Wayne, 511 N.E.2d 1074, 1077 (Ind.App. 1987).
Entry of February 23, 1998 (doc. no. 15), pp. 2-3. Following this ruling, the plaintiffs moved for, and this magistrate judge granted, leave to file the First Amended Complaint in order to address deficiencies in their original complaint and otherwise conform the complaint to the district judge's partial judgment on the pleadings. In this magistrate judge's ruling on the defendants' motion for summary judgment, it was determined that, although the state law claims of the First Amended Complaint were literally asserted only against the Marion County Sheriff, the plaintiffs were construed to be asserting their state law constitutional and statutory claims against the individual defendants as well. Such was this magistrate judge's impression of the actual course of this litigation, the discussions at pretrial conferences, and the nature of the common law, constitutional, and statutory claims asserted.
Contrary to the last quoted sentence, the tort claims are not against "Marion County" but against the Marion County Sheriff in his official capacity. In Indiana, counties and sheriffs are separate and independent entities.
This cause was removed to this Court on December 22, 1997. On January 19 and 20, 1998, the plaintiffs and defendants respectively executed a consent form to have this Cause tried by this magistrate judge. Consent to the Exercise of Jurisdiction by a Magistrate Judge (doc. no. 14). On the day that the defendants executed their consent, they filed their motion for partial judgment on the pleadings. The district judge ruled on the defendants' motion on February 23, 1998 and then, on March 4, 1998, referred this Cause to this magistrate judge for all further proceedings pursuant to the parties' consents. Order of Reference (doc. no. 16).
In support of their objections to the Court's construction of the plaintiffs' state law claims, the defendants primarily rely on the language of the First Amended Complaint and the status of the district judge's partial judgment on the pleadings as law of the case. In a similar situation of a consent reassignment to a magistrate judge following a dispositive ruling by a district judge, the Seventh Circuit explained the effect of the law of the case doctrine on a subsequent judge's reconsideration of a previous judge's ruling:
We are dealing here with the variant of the law of the case doctrine that relates to the re-examination of a prior ruling by a different member of the same court, as opposed to a judge's reconsideration of her own earlier ruling, or a lower court's obligation to honor the mandate of a superior court within a single judicial system. * * * [T]he law of the case doctrine in these circumstances reflects the rightful expectation of litigants that a change of judges mid-way through a case will not mean going back to square one. Although the second judge may alter previous rulings if he is convinced they are incorrect, "he is not free to do so . . . merely because he has a different view of the law or facts from the first judge." Instead, the presumption is that earlier rulings will stand, even though it can be overcome for compelling reasons (such as new controlling law or clear error).
Best v. Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997) (citations omitted). See also Williams v. Commissioner of Internal Revenue, 1 F.3d 502, 503 (7th Cir. 1993). The Court has also given a less restrictive scope to the doctrine:
Controversy over the doctrine of law of the case properly focuses on its invocation by a judge asked to change a previous ruling of his in a case, or by judges asked to change a previous ruling by a coordinate (as distinct from superior) court in a case. In these, the only interesting applications of the doctrine, it is a doctrine about reconsideration. That is how it normally is expressed. Here is a typical formulation: "a court will ordinarily not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling." Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir. 1982). It is important to give full weight to the word "decision." No one thinks that if a trial judge overrules an objection to the admission of some piece of evidence, and a moment later the lawyer against whom he ruled asks him to reexamine his ruling, the judge may not do so unless he has "clear and convincing reasons." No judge is so rigid. Judges are constantly reexamining their prior rulings in a case on the basis of new information or argument, or just fresh thoughts, without excogitating a "clear and convincing" reason for their change of heart. On the other hand, once a case has been decided, then, unless the decision was avowedly tentative (for example, a decision granting or denying a preliminary injunction or — our earlier example — a decision by a motions panel), there is a natural and healthy reluctance not to reconsider the decision unless powerful reasons are given for doing so. Otherwise parties would have an incentive constantly to pester judges with requests for reconsideration.
Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991). Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985) ("[W]hile a district judge should carefully consider the propriety of re-examining a prior ruling of another district judge in the same case, when good reasons for doing so appear (such as new evidence or controlling law, or clear error), the `law of the case' doctrine must yield to rational decisionmaking." . . . `[A] trial judge should not court reversal because of the erroneous ruling of another judge any more than because of an erroneous ruling of his own.'"); Champaign-Urbana News Agency, Inc. v. J. L. Cummins News Co., Inc., 632 F.2d 680, 683 (7th Cir. 1980) ("The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal."); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294 (7th Cir. 1975) ("Federal rule of the case doctrine is a rule of practice. It does not limit a court's power. A district judge has the power to undo the work of his predecessor in the same action." (citations omitted)), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976). We conclude from these explanations that, when there has been a reassignment of judges in the same court, the subsequent judge should not undo the previous judge's rulings except for changes in controlling facts or law, or for clear errors that are reversible on appeal. Because trial judges enjoy varying degrees of discretion under the law, different, even opposing, views of the facts and law in a case may be equally sustainable on appeal. A subsequent judge should be reluctant to reconsider a previous judge's different, but not reversible, rulings on the facts or law.
In order to discourage judge and forum shopping in the context of judge reassignments within coordinate courts, the law of the case doctrine is likely more restrictive when a judge is faced with reconsidering a previous judge's ruling than one of his own.
In this case, I conclude that, in the present context of this cause, the district judge's ruling that Indiana Code § 34-13-3-5(a) bars the plaintiffs' claims under the Indiana Constitution and I.C. § 35-33-5-7(e) against the individual defendants should be vacated. The Indiana General Assembly enacted the Indiana Tort Claims Act ("I.T.C.A."), including § 34-13-3-5(a), in response to the Indiana Supreme Court's abrogation of the last vestiges of the state's sovereign immunity in Campbell v. State of Indiana, 259 Ind. 55, 284 N.E.2d 733 (Ind. 1972), which culminated a series of appellate decisions that abrogated cities' and counties' sovereign immunities, Brinkman v. City of Indianapolis, 141 Ind. App. 662, 231 N.E.2d 169 (Ind.App. 1967), trans. denied (city sovereign immunity); Klepinger v. Board of Commissioners, 143 Ind. App. 155, 239 N.E.2d 160 (Ind.App. 1968), trans. denied. Quakenbush v. Lackey, 622 N.E.2d 1284, 1288 (Ind. 1993). The I.T.C.A. applies generally "to a claim or suit in tort", I.C. § 34-13-3-1, and encompasses "all torts committed against either persons or property", Holtz v. Board of Commissioners of Elkhart County, 560 N.E.2d 645, 647-48 (Ind. 1990). Whether the I.T.C.A. applies to the plaintiffs' claims under the Indiana Constitution and I.C. § 35-33-5-7(e) depends on whether, in general, the I.T.C.A. governs constitutional and statutory as well as common law torts, and whether the specific provisions of the I.T.C.A. apply to the plaintiffs' specific claims.
Because the Indiana Supreme Court has not declared whether a private cause of action for damages exists to remedy violations of Indiana Constitutional rights, there is no case law on point whether the I.T.C.A. applies to Indiana Constitutional torts. In Indiana Dept. of Public Welfare v. Clark, 478 N.E.2d 699 (Ind.Ct.App. 1985), the Court of Appeals held that the I.T.C.A. applied to federal constitutional torts under 42 U.S.C. § 1983, relying on the United States Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), that § 1983 suits are most analogous to tort claims for personal injuries (for the purpose of determining the applicable state statute of limitation). Clark, 478 N.E.2d at 702. However, the United States Supreme Court has since held that, under the doctrine of federal supremacy, states may not impose their procedural requirements on federal causes of action if those requirements are inconsistent with the remedial goals of or otherwise obstruct the federal action. Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 2306-07, 101 L.Ed.2d 123 (1988). Werblo v. Board of Trustees of the Hamilton Heights School Corp., 537 N.E.2d 499 (Ind. 1989) (Felder prohibits application of the I.T.C.A.'s 180-day notice requirement to § 1983 actions in state's courts). If a private tort action exists under the Indiana Constitution, Clark provides support for applying the provisions of the I.T.C.A., including § 34-13-3-5(a), to the tort, but Bivens and Felder provide support for the independent nature of constitutional torts and judicial review of potentially inconsistent statutory obstructions of such actions.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971).
Although Felder was based on the doctrine of federal supremacy, it is also an analogy for the supremacy of constitutional tort actions vis-a-vis obstructionist statutory procedures. Cf. Meury v. Eagle-Union Community School Corp., 714 N.E.2d 233, 242 (Ind.Ct.App. 1999) (in assuming in its analysis that "a [state] constitutional tort would not be barred for failure to comply with ITCA notice requirements", the court recognized the independent nature of constitutional torts and the necessity for judicial review to determine the applicability of statutory procedural requirements to them).
The Court has already determined to certify the question of the existence, nature, and scope of a private cause of action to remedy violations of the Indiana Constitution to the Indiana Supreme Court, including the relationship of the I.T.C.A. to the action. Therefore, it is premature to hold that I.C. § 34-13-3-5(a) applies to the plaintiffs' claims under Article I, § 11 of the Indiana Constitution.
The I.T.C.A. applies to "a claim or suit in tort," I.C. § 34-13-3-4(a), including statutory torts, see, Scott County v. Stamper, 425 N.E.2d 264 (Ind.Ct.App. 1981) (competency provision of I.T.C.A. applies to wrongful death actions); Speidel v. State of Indiana, 179 Ind. App. 392, 386 N.E.2d 180 (Ind.Ct.App. 1979) (I.T.C.A.'s exemption of the State from liability for interest on judgments applied in wrongful death action). Therefore, I.C. § 34-13-3-5(a) would ordinarily apply to the remedy for wrongful entries provided by I.C. § 35-33-5-7(e). However, by its own terms, § 35-33-5-7(e) allows plaintiffs to recover damages against "the responsible authority and the law enforcement officer or officers". Because this statute was enacted after the I.T.C.A. and is more specific than the I.T.C.A., it takes precedence over the I.T.C.A. Clearly, an action for damages brought pursuant to I.C. § 35-33-5-7(e) may be brought against the individual defendants.
Therefore, the defendants' motion to reconsider is granted. Paragraph 3 of the Entry of February 23, 1998 (doc. no. 15) is vacated to the extent that it applies to the plaintiffs' claims under the Indiana Constitution and I.C. § 35-33-5-7, and footnote 9 of the Entry on Defendants' Motion for Summary Judgment (doc. no. 94) stands.
Done this 15th day of September, 1999.