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Justices: 'Three Strikes Law' unconstitutional

Michael W. Hoskins
January 1, 2008
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A four-year-old state statute aimed at limiting frivolous lawsuits filed by prison inmates is unconstitutional because it effectively closes the courthouse doors altogether for certain people, a split Indiana Supreme Court ruled today.

Three of the five justices - Justices Theodore Boehm, Robert Rucker, and Brent Dickson - agreed that the state's 2004 "Three Strikes Law" violates the Indiana Constitution's Open Courts Clause. Chief Justice Randall T. Shepard and Justice Frank Sullivan disagreed and observed their colleagues' decision means many Hoosier litigants will have to wait longer for their day in court because of filings from "the very most abusive frequent filers in the state's prisons."

The 3-2 decision comes in Eric D. Smith v. Indiana Department of Correction, et al., No. 49S02-0804-CV-166, but it also brings with it unanimous decisions in three other suits from another inmate based on the majority's rationale in Smith. Those cases are James H. Higgason v. Indiana DOC, Nos. 46S04-0804-CV-167, 46S03-0804-CV-168, and 46S05-0804-CV-169. All four cases were granted transfer with the opinions today.

Smith entered the state's prison system after being convicted of arson in 2001. Specifically, he was found guilty of starting a fire in an apartment complex on the west side of Indianapolis that left 12 families homeless and resulted in $2 million in damages. He was sentenced to 20 years and is incarcerated at the Westville Correctional Facility.

He's filed dozens of suits since then, including the current one that involved his prison cell creation of a makeshift hammock - made from his bed sheet and water pipe - and refusal to come down until correctional officers provided him with copies of a brief he planned to file in litigation before the Indiana Court of Appeals. They used chemical spray and pepper balls to force him down, and he later filed an injury claim that the Marion Superior Court dismissed as frivolous under the state law.

Meanwhile, Higgason is also a state prison inmate incarcerated following a burglary conviction in 1985 that led to 25 years imprisonment because of his habitual offender status. Higgason brought the three claims addressed by the court today over photocopying fees for legal documents in several cases, all of which had been dismissed as frivolous.

At issue is Indiana Code 34-58-2-1, which says inmates are not allowed to file new litigation if they have at least three ongoing civil actions that a state court has dismissed. The only permissible reason would be if a court determines that inmate is in "immediate danger of serious bodily injury."

In theory, legitimate lawsuits move forward. Frivolous cases are dismissed.

The court didn't address the other 2004-adopted law IC 34-58-1-2, known as the Frivolous Claim Law, which Smith and Higgason didn't challenge as it provides that a court shall review complaints and petitions filed by offenders to determine if a claim should proceed.

In writing for the majority, Justice Boehm noted that Indiana's Three Strikes Law goes further than other jurisdictions attempting to limit frivolous claims from inmates.

"The Indiana Constitution does not balance the inconvenience of entertaining a claim against the right to seek redress from the courts subject to reasonable conditions," Justice Boehm wrote. "To the contrary, the right to petition the courts is absolute. This does not mean that meritless claims may not be summarily dismissed under the Frivolous Claim Law. It does mean that an individualized assessment of each claim is required, and a claim cannot be dismissed on the basis of who presents it rather than whether it has merit."

Justices relied on everything from state and federal caselaw in other jurisdictions, those state constitutions, the Indiana Constitution of 1816, and the English Magna Carta charter of 1215.

"Indiana is unique in imposing a complete ban on filing based on the plaintiff's prior litigation," Justice Boehm wrote. "The (law) sweeps with a broader brush than the law of any other United States jurisdiction because it operates as an indiscriminate statutory ban, not merely a condition to access to the courts. The law bars claims purely on the basis of the plaintiff's prior activity without regard to the merits of the claims presented."

But Chief Justice Shepard disagreed in a dissent that the majority describes as unfounded, contending that the decision will clog the courts to the exclusion of legitimate litigants.

Describing Smith as an "excellent poster boy" to highlight the Three Strikes Law and his amount of serial lawsuits as "impressive," the chief justice wrote the majority is taking an extraordinary step that is "quite paradoxal."

"The majority rates the cause of assuring Smith a hearing on the merits of every lawsuit he chooses to file as so important to the life of our state that it takes the extraordinary step of invalidating the General Assembly's effort to assure access to justice for all of Indiana's citizens," he wrote. "The decision to do so is not compelled by the organic documents of Western justice. One can revere the Magna Carta and still say with confidence that those who created it would be appalled that so many citizens should be pushed aside to make room for prison inmates pursuing their fifteenth or one hundred fifteenth lawsuit."

Justice Sullivan wrote in his dissent that the majority goes much further than necessary to protect a Hoosier's cherished right of access to courts, saying the legislature created a reasonable balance between that right and prison inmate litigation.

Both Chief Justice Shepard and Justice Sullivan concurred in result with the Higgason rulings, with Justice Sullivan noting that he believed the Three Strikes Law was constitutional as applied to Higgason but that the claim could be dismissed under the Frivolous Claim Law.

All four cases are reversed and remanded. In Smith, the justices ordered the trial judge to determine whether the claim should be dismissed under the Frivolous Claim Law. Higgason's three claims are to be dismissed under that statute, the court ordered.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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