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Full appeals court decides on IPAS case

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Nine months ago, a federal judge in Indianapolis refused to dismiss a case about the state's practices and programs regarding mentally ill inmates, finding an independent state agency had a right to sue on those issues.

But within a week, a three-judge federal appellate panel ruled the opposite way against that the same plaintiff in a different suit, essentially sweeping that first ruling by U.S. Judge David F. Hamilton under a legal rug and forcing him to reconsider the dismissal.

The case that Judge Hamilton handled remains ongoing and is set for bench trial early next year, but not before Judge Hamilton because he's since been elevated to the 7th Circuit Court of Appeals. Now as an appellate jurist and writing for the full court en banc, Judge Hamilton today found a chance to weigh in on identical issues he'd faced a year ago at the lower court level.

Writing for eight other majority members who disagreed with the one dissenter, Judge Hamilton authored a 63-page opinion that essentially came to the same conclusion that he'd reached on the other case - finding the agency has a right to sue and not dismissing the Indiana Protection and Advocacy Services suit.

In rehearing en banc the case of Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, et al. No. 08-3183, the appellate court articulately delved into legislative history and intent as well as caselaw to come up with a decision that touches on broader issues about states rights and federalist principles about when court jurisdiction is appropriate.

The court affirmed a decision from U.S. Judge Larry McKinney, removing the state of Indiana and Family and Social Services Administration as defendants but keeping alive the claims against the named state officials. Specifically, the court held the 11th Amendment does not bar plaintiff IPAS from seeking injunctive and declaratory relief against the state officials because the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986 provides that cause of action, and that plaintiff is entitled to access peer review records of treatment of covered mentally ill patients.

Basically, the court held the opposite of what the three-judge panel found last summer: the agency doesn't have standing to bring suits in federal court because of the 11th amendment and state statutes haven't given IPAS the powers listed in 42 U.S.C Sections 10805 and 10806.

Filed in late 2006, IPAS sued FSSA, LaRue Carter Memorial Hospital, and several state officials in order to gain records on a mentally disabled adult patient who died while at LaRue Carter to find out if she was a victim of abuse. Judge Larry McKinney had decided the defendants had to hand over the records because the victim was an adult and her parents weren't appointed her legal guardians, but the FSSA argued releasing the records would violate the victim's parents' privacy.

Relying the three principal types of exceptions to the 11th Amendment's bar, the majority found that the Supreme Court of the United States has held immunity goes away once a state official acts outside the scope of his or her authority.

"Congress gave each state the choice to establish a protection and advocacy system as either an independent state agency or a private not-for-profit entity," Judge Hamilton wrote. "Indiana made the choice to set up IPAS as an independent state agency. If we gave that choice any weight in the 11th Amendment inquiry, we would be permitting Indiana to use its own choice ... as a means to shield its state hospitals and institutions from the very investigative and oversight powers that Congress funded to protect some of the state's most vulnerable citizens. That result would be strange indeed."

Judge Richard Posner issued a concurring opinion, noting that he joins the majority "without reservation" but wrote separately to emphasize what he sees as practical considerations on the right to sue to obtain patient records for the mentally ill.

"Independent as it is of the governor and the attorney general, IPAS is a state entity in name only, especially in a suit against a state hospital - there it's an agent of the federal government, suing to assure a state's compliance with the federal duties of care for the mentally ill that the state agreed to perform," Judge Posner wrote. "It would be strange if a state could render the federal statute unenforceable by creating (or appointing) a public rather than a private protection and advocacy agent, or if the statute were unenforceable against state hospitals even though there is (as I think we all agree) no issue of state sovereign immunity."

Chief Judge Frank Easterbrook was the sole dissenter, saying that he would have dismissed the suit and let the administrative process take its course.

"Both (plaintiffs and defendants) believe that they have the patients' interests at heart, though they disagree about how to serve those interests," he wrote. "Fights between two state agencies should be resolved within the state (including the state's judiciary, if state law so provides, or through the auspices of the Department of Health and Human Services which administers the federal grant program. This statute establishes a program of cooperative federalism. Cooperation usually requires negotiation and compromise among multiple public bodies. That is the way of the administrative rather than the judicial process."

The chief judge pointed out the majority's rationale seems to fundamentally conflict with SCOTUS precedent. He wrote, "Perhaps my colleagues have a wise view as a matter of policy, but the Supreme Court's perspective is the one we must use in a hierarchical judicial system."

If this ruling stands and isn't appealed to the nation's highest court, it would likely impact the case of IPAS v. Indiana Department of Correction, 1:08-CV-11317, which Judge Hamilton had decided on July 21, 2009, and is now before Chief Judge Richard L. Young. A motion for class certification is pending and the federal court docket shows a five-day bench trial is set for July 25, 2011.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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