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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.