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

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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.