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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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