ILNews

Court: private cause of action allowed

Jennifer Nelson
January 1, 2008
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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.
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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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