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Judges: amendment not retroactive

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The 7th Circuit Court of Appeals ruled today that an estate's interpretation of a 2003 amendment to Indiana Code would threaten the fiscal health of governmental entities and that the amendment isn't retroactive.

"Making the entities suddenly responsible for liability imposed during the first term of the Reagan Administration would neither preserve the treasury nor discourage excessive litigation," wrote Judge Robert M. Dow Jr., sitting in designation from the Northern District Court of Illinois.

The federal appellate court decided in Estate of Christopher A. Moreland v. Erich Dieter and Michael Sawdon, and St. Joseph County Board of Commissioners, et al., No. 08-1478, that an amendment to Indiana Code Section 34-13-4-1 didn't apply retroactively to a judgment imposed against St. Joseph County jail officers Erich Dieter and Michael Sawdon. The two were found civilly liable for the beating death of inmate Christopher A. Moreland in 1997. The jury returned a $56.5 million verdict, with $29 million in compensatory damages, against the two in 2002; a third officer was found not liable in September 2003.

The estate relied on the 2003 amendment to attempt to recover the $29 million from St. Joseph County and its board of commissioners. The amendment made changes to the state's statutory schemes covering indemnification by governmental entities for the conduct of their employees. It converted a discretionary indemnification provision into a mandatory one for non-punitive damages and when the entity defends or has the chance to defend the employee.

The District Court denied the estate's motion for writ of execution to collect against the county.

The 7th Circuit rejected the estate's three arguments on appeal: that the amendment applies to the judgment because the interpretation that it seeks isn't retroactive at all; the language of the amendment requires retroactive application; and the amendment was a remedial statute whose purpose requires retroactive application.

The estate relies on re-enacted language, which makes it difficult for the judges to "swallow" the argument that the legislature intended to give retroactive effect to the 2003 amendment by resorting to language that already existed in Indiana code, wrote Judge Dow.

"In sum, the language to which the Estate points falls far short of the unambiguous language that Indiana courts require for a statute to be applied retroactively. Tellingly, Indiana's legislature has revealed itself more than capable of making its statutes explicitly retroactive ...," he wrote.

The estate's argument the amendment is remedial also fails, because it's doubtful the amendment qualifies as remedial as the state's courts use the term in evaluating retroactivity and giving retroactive effect to the amendment would allow one purpose of it to trump other purposes that are evident from the structure and language of the statute, wrote the judge.

"The Estate's interpretation would threaten the fiscal health of governmental entities by opening them up to twenty years' liability, because that is how long a person has to enforce an Indiana judgment," wrote Judge Dow.

St. Joseph County may choose to compensate the estate for the conduct of its officers, but because I.C. Section 34-13-4-1 isn't retroactive, it's not a choice the Circuit Court has the authority to impose.

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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