ILNews

Court mulls non-competes, parental rights

Michael W. Hoskins
January 1, 2007
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. My husband left me and the kids for 2 years, i did everything humanly possible to get him back i prayed i even fasted nothing worked out. i was so diver-stated, i was left with nothing no money to pay for kids up keep. my life was tearing apart. i head that he was trying to get married to another lady in Italy, i look for urgent help then i found Dr.Mack in the internet by accident, i was skeptical because i don’t really believe he can bring husband back because its too long we have contacted each other, we only comment on each other status on Facebook and when ever he come online he has never talks anything about coming back to me, i really had to give Dr.Mack a chance to help me out, luckily for me he was God sent and has made everything like a dream to me, Dr.Mack told me that everything will be fine, i called him and he assured me that my Husband will return, i was having so many doubt but now i am happy,i can’t believe it my husband broke up with his Italian lady and he is now back to me and he can’t even stay a minute without me, all he said to me was that he want me back, i am really happy and i cried so much because it was unbelievable, i am really happy and my entire family are happy for me but they never know whats the secret behind this…i want you all divorce lady or single mother, unhappy relationship to please contact this man for help and everything will be fine i really guarantee you….if you want to contact him you can reach him through dr.mac@yahoo. com..,

ADVERTISEMENT