ILNews

Court: private cause of action allowed

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
Tackling an issue of first impression, the Indiana Court of Appeals determined the "Equal Access Law" in Indiana Code creates a private cause of action for bail agents.

In Dave Galloway in his capacity as Hendricks County Sheriff v. David Hadley, d/b/a D & D Bonding, No. 32A-04-0707-CV-400, Galloway appealed the trial court order granting Hadley a preliminary injunction against the use of a "preferred agent list" by the Hendricks County Sheriff's Department. The list contains the names of preferred bail agents, and at the request of an arrestee, an officer can contact an agent on the arrestee's behalf by using the list.

For years, Hadley, a licensed bondsman, was on this list; however, once Galloway took office as sheriff, Hadley's name was removed. The new preferred agent list only contained the names of bail agents who had made financial contributions to Galloway's political committee during his 2006 campaign. When Hadley discovered he was no longer on the list, he filed a complaint and sought a preliminary injunction against the use of the list.

At a hearing, Galloway testified he had learned from jail officers that Hadley wasn't on the list because he won't write bonds for African-Americans or Hispanics. Hadley said his insurance carrier prevents him from issuing bail for illegal immigrants. Hadley testified his business had sustained a dramatic reduction in volume since his name was taken off the list.

The court issued the injunctive order that prevented Galloway from using the preferred agent list.

In a matter of first impression, the Court of Appeals had to decide whether the Equal Access Law creates a private cause of action, which would allow the trial court subject-matter jurisdiction to hear Hadley's complaint.

Indiana's Equal Access Law, I.C. 27-10-3-18, states: "A person who holds a valid bail agent's license issued by the insurance commissioner and registered as required in section 17 of this chapter may have equal access to the jails of this state for the purpose of making bond, subject to this article and rules adopted under this article."

A statute creates a private cause of action when a statute imposes a duty for a particular individual's benefit, but not when the duty is for the public's benefit, wrote Judge Edward Najam. However, if the public receives an ancillary benefit when the duty is for an individual's benefit, it will not preclude a private cause of action. In this instance, the Equal Access Law doesn't explicitly state whether it confers a public or private benefit. The Court of Appeals ruled it confers a private benefit to bail agents, but the public does receive benefit as well, so Hadley can bring his private cause of action.

Galloway argued private causes of action can't be brought because the Indiana Department of Insurance has the authority to enforce Indiana's Bail Law, and when a statute includes a specific enforcement provision, a private cause of action cannot occur. However, the IDOI's jurisdiction doesn't pertain to the enforcement of the Equal Access Law, wrote Judge Najam, so Hadley's private cause of action is allowable.

The Court of Appeals also affirmed the grant of the preliminary injunction on the use of the preferred agent list. The trial court found that Hadley satisfied all of the requirements for a preliminary injunction, including that Hadley suffered irreparable harm, and there is a threat of continuing injury and harm if the injunction is not ordered.

Galloway argued Hadley wasn't denied access to the jail, the trial court abused its discretion in finding Hadley suffered irreparable harm, the court erroneously concluded no harm would befall Galloway should the injunction incur, the court abused its discretion in ruling public interest would be served by granting the injunction, and Hadley cannot seek injunctive relief because he has unclean hands.

The Court of Appeals was not persuaded by Galloway's arguments on each of the challenges he raised. In regards to Galloway's unclean hands argument, Judge Najam wrote that even though Hadley had once been a part of the preferred agent list it does not mean he has unclean hands. While Hadley's position is hypocritical in that he now has a problem with the use of the list, hypocrisy is not a cognizable legal issue.
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. The Conour embarrassment is an example of why it would be a good idea to NOT name public buildings or to erect monuments to "worthy" people until AFTER they have been dead three years, at least. And we also need to stop naming federal buildings and roads after a worthless politician whose only achievement was getting elected multiple times (like a certain Congressman after whom we renamed the largest post office in the state). Also, why have we renamed BOTH the Center Township government center AND the new bus terminal/bum hangout after Julia Carson?

  2. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  3. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  4. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  5. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

ADVERTISEMENT