ILNews

Court mulls non-competes, parental rights

Michael W. Hoskins
January 1, 2007
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Two sets of arguments before the Indiana Supreme Court this morning gave justices a look at the scope of non-compete agreements, and how much parental privilege exists when it comes to discipline and corporal punishment.

First, the jurists posed questions in Central Indiana Podiatry P.C. v. Kenneth J. Krueger, Meridian Health Group P.C., 29S05-0706-CV-256, which the Court of Appeals ruled on in January. The appellate court overturned a lower court decision and held the podiatrist, Krueger, should have stopped working pending trial after his former company sued him in 2005 for violating a contract's restrictive covenants about working in about a dozen surrounding counties for two years after leaving his former practice.

Attorneys offered suggestions to the court that ranged from eliminating non-compete agreements entirely, using the territorial-focused blue pencil doctrine to narrow agreements, or to leave the system unchanged.

Justice Frank Sullivan asked the most questions of both sides, at one point describing this area of law "fascinating." He cited two recent cases from Supreme Courts in Illinois and Tennessee, which held respectively this year that clinics can enforce non-competes even if they interfere with patients' rights to choose medical providers, and that prohibited enforcement of non-competes.

Justice Sullivan seemed to lean more to deferring to the medical community on the issue, rather than paving new ground.

"Doctors know more than lawyers on this, maybe we should defer to the medical profession and [American Medical Association] rather than prescribe for them what their ethics should be," he said. "Just like we wouldn't like it if physicians told us lawyers what our ethics should be."

His reference to the AMA guidelines came from Krueger's attorney, Joseph Reiswerg, who mentioned that the association considers non-compete clauses unethical if they are excessive in scope.

Attorneys Jim Knauer and Steve Runyan argued that thousands of non-compete agreements that exist in Indiana could be affected by this ruling, while Reiswerg contended this comes down to the patient's ability to chose a doctor.

Following a short break between arguments, the half dozen people from the first arguments were joined by multiple rows of onlookers, including television news cameras, for the corporal punishment case arising from Marion County.

That case, Sophia Willis v. State of Indiana, 49S02-0707-CR-295, drew more pointed questions and philosophical discussion from justices as they considered what kind of guidance appellate courts could give to trial judges, child welfare workers, prosecutors, and parents on this issue.

The case stemmed from a single mother's use of a belt, or extension or electrical cord in spanking her 11-year-old son five to seven times. She was disciplining him for a February 2006 incident of stealing her clothes and taking them to school, which a teacher contacted her about. After sending the child away for the weekend, Willis was unable to resolve the situation and decided to use corporal punishment, attorneys said.

The boy reported the incident to school officials, who contacted child protective services. Willis was later charged with felony child battery and convicted during a bench trial by a commissioner. The conviction was reduced to a Class A misdemeanor, and Willis received a suspended sentence.

Since the case began, the deputy attorney general handling the appeal told the justices that Child in Need of Services proceedings began but were abandoned, and Willis has agreed to give up custody of her son to the boy's father.

"There are spankings, and there are spankings," Nicole Schuster told the justices. "There are facts that told the judge there was a line here. This crossed that line."

The number of whippings goes to demonstrate the unreasonableness of the mother's actions, Schuster contended.

But Indianapolis attorney Robert King Jr., representing Willis, said this was a punishment of last resort as she had previously sent her son to his room as an alternative disciplinary method - but without success. He encouraged the court to consider multiple testing prongs established in Mitchell v. State, 813 N.E.2d 427 (Ind. Ct. App. 2004), which held that dropping a 4-year-old to the floor and kicking him was child battery. His suggestions included using age, intent, injuries sustained, prior attempts at discipline, and the punishment to crime relationship.

"This was a punishment of last resort and was enhanced just like we have in the criminal justice system," he said, referring to how courts and juries can enhance criminal sentences. "This is like pornography. We know it when we see it."

He noted the trial record reflects the sad nature of this case, as Willis told the trial court she was concerned about her son ending up in the criminal justice system because her "tool" to discipline was taken away.

"That's the battle you face as a parent these days," King said.

Justice Brent Dickson took a strong presence at arguments, interrupting Schuster within the first seconds of her statement and at several points noting the difficult issue of parental privilege in this case.

"Some of us are exploring this because of the possibility there may be an absence of guidance here in the law helping prosecutors decide which cases to pursue, and parents decide how to go about fulfilling their responsibilities to raise children to be law-abiding citizens," Justice Dickson said. "Can you help us in crafting an interpretation that could help guide the development here?"

Justice Sullivan mentioned that this was the first case he recalls in his nearly 14 years on the court where a parental-discipline case has been prosecuted. He noted that it might be better for the court to err on the side of caution, especially in light of the high volume of child abuse reports and cases in Indiana.

The arguments for both cases are available online at http://www.indianacourts.org/apps/webcasts.
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  1. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  2. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

  3. Lots of potential "good boys" right in the heart of our nation .... "Nashville, TN has gained a reputation as a new “Ellis Island,” a magnet for immigrants from around the world. The number of foreign-born residents in the area has grown from 2 percent to almost 12 percent." Some 30 percent of students in Metro schools live in homes in which English is not the primary language. In 2012 Nashville had the fastest-growing immigrant population of any American city. It is the home of the nation’s largest Kurdish population, as well as sizable numbers from other countries such as Somalia, Sudan, Egypt, Eretria and Bhutan. Nashville has traditionally had a sizable and prominent African-American community, which accounts for nearly 16 percent of its population." http://www.tennessean.com/story/opinion/contributors/2015/05/17/nashville-welcoming-immigrants/27479183/ SMILE & CELEBRATE DIVERSITY!

  4. This story linked below about FBI shooting an unarmed Chechen suspect in his apartment six times in the chest and once in the back of the head, is unrelated. IT has NOTHING to do with Tsaernayev. And the agent was cleared of wrongdoing, even though the story says nothing of the other agents there with him at the time. Maybe the unarmed suspect was making a move for a butter knife on the table before they began punching him full of holes. Sad but of course, wholly unrelated....nothing to see here, keep moving http://www.npr.org/sections/thetwo-way/2014/03/21/292441681/reports-fbi-agent-who-killed-chechen-during-boston-bombing-probe-is-cleared

  5. Oh, bsides these troubled youts, maybe a few ex-contractors they had to relocate after Russia crushed the Western instigated insurgency, that's all. Nice boys. But when they go wrong, they need to be silenced. http://www.reuters.com/article/2009/09/24/us-russia-chechnya-cia-idUSTRE58N5S120090924

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