Cantrell v. Morris

Decision Date21 June 2006
Docket NumberNo. 94S00-0505-CQ-243.,94S00-0505-CQ-243.
Citation849 N.E.2d 488
PartiesJohn CANTRELL, Appellant (Plaintiff below), v. Sonya A. MORRIS, Appellee (Defendant below).
CourtIndiana Supreme Court

Adrian P. Smith, David S. Gladish, Highland, IN, Attorneys for Appellant.

Michael K. Sutherlin, Nicholas D. Conway, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Civil Liberties Union.

Steve Carter, Attorney General, Thomas M. Fisher, Solicitor General, Frances Barrow, David L. Steiner, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

BOEHM, Justice.

We respond to a question certified from the United States District Court for the Northern District of Indiana as follows: 1) we do not resolve whether Article I, Section 9 of the Indiana Constitution imposes any restrictions on government officials in dealing with political activity or affiliation of public employees; 2) to the extent that tort doctrines give a civil damage remedy to a public employee terminated for political activity or affiliation in violation of Article I, Section 9 of the Indiana Constitution, any such wrongful discharge claim is governed by the Indiana Tort Claims Act (ITCA); and 3) the Indiana Constitution does not of itself give rise to any such claim, and does not prevent the ITCA from applying to such a claim.

Facts and Procedural History

Public defenders in the Criminal Division of the East Chicago City Court are appointed by the elected judge of that court. In 2002, former East Chicago Judge Eduardo Fontanez appointed John Cantrell. Judge Fontanez did not seek reelection in 2004 and Cantrell actively and openly supported the candidacy of Corinth Bishop II for the post. Sonya A. Morris won the election and took office on January 1, 2004, and terminated Cantrell thirty days later.

Cantrell sued Morris in the United States District Court for the Northern District of Indiana, alleging that she terminated his employment as public defender because of his support for her opponent. Cantrell asserted that the termination gave rise to a claim under 42 U.S.C. § 1983 and also independent claims for violation of his rights of free speech and association under both the federal and Indiana constitutions. Specifically, Cantrell asserted a right to recover compensatory and punitive damages for violation of his right to free speech guaranteed by Article I, Section 9 of the Indiana Constitution. He also asked for equitable relief in the form of an injunction ordering reinstatement.

Morris moved to dismiss the claim for violation of Section 9, arguing that an allegation of violation of the Indiana Constitution does not support a private cause of action for damages. The district court denied the defendant's motion to dismiss and certified the following question to this Court:

Does a private right of action for damages exist under Article I, Section 9 of the Indiana Constitution, and if so, what are the elements of the action the plaintiff must prove?

The district court invited us to rephrase the question if we choose to do so, and we accept the invitation. We do not believe the question as phrased is susceptible of a generally applicable response. The question is limited to violations of Article I, Section 9, but even as so limited it embraces a broad range of potential claims. For example, we think the facts of this case and the government's ordering the closing of a newspaper do not necessarily invoke the same considerations, but both would implicate Section 9 of the Indiana Constitution. Accordingly, we are reluctant to attempt to address this question without some factual context. We therefore narrow the question to the more specific one presented by the allegations of this complaint:

Does an employee of a state or local governmental agency whose discharge is alleged to have violated rights of free speech guaranteed by Article I, Section 9 of the Indiana Constitution assert a claim for money damages against the unit of government or any individual responsible for the firing, and, if so, what is the source of that claim and what are its elements?

We understand the certified question as framed by the federal court to ask whether the Indiana Constitution gives rise to a civil damage remedy, as opposed to whether, if a violation of Section 9 is established, common law tort doctrines support a damage claim. Although some authorities seem to treat these two questions as one, as explained below we think these two issues are distinct.

We think the answer to the certified question, as rephrased, is informed by a number of distinct bodies of federal and state law. These include: 1) the federal law concerning the rights of public employees terminated for political activity or affiliation; 2) Indiana statutory provisions specifically addressing rights of court employees; 3) the Indiana Tort Claims Act and related immunity doctrines; 4) Indiana state employment law; 5) basic state law tort doctrines; and 6) the decisions of the Supreme Court of the United States and courts in other states recognizing a tort remedy for some violations of the federal or state constitution, and rejecting it for others.

I. Public Employee Terminations Alleged to Violate Article I, Section 9

This Court has never considered whether Article I, Section 9 of the Indiana Constitution affords public employees any protection at all from termination for political affiliation or activity or for expressions of fact or opinion.1 Determination of rights under the Indiana Constitution may involve "the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996) (internal quotation marks omitted). Claims of First Amendment rights of public employees have arisen in a wide variety of contexts and have been held to depend on several different factors, including the nature of the statements made or activities conducted by the employee, the position held by the employee, and others.2 We need not explore whether any similar rights are conferred by Article I, Section 9, and if so under what circumstances. For the reasons given below, we conclude that whether or not Article I, Section 9 of the Indiana Constitution affords any protection to public employees under some circumstances, a terminated employee has no private right of action for damages that arises under that Section.

We can resolve a few preliminary issues. First, Article I, Section 9 limits only governmental actions, not the acts of private citizens. A termination by a private employer, therefore, can have no Section 9 implications. Second, we do not agree that legislation is the only activity subject to Section 9. Just as the First Amendment to the United States Constitution provides that "Congress shall make no law" abridging the right of free speech, Article I, Section 9 provides that "No law shall be passed" restraining free speech. Based on this language, the State argues that a violation of Section 9 requires the passage of a statute, so there can be no violation of this provision for terminating employment. We have held, however, that the executive branch is subject to Section 9. Whittington v. State, 669 N.E.2d 1363, 1370 (Ind.1996) (an individual's right to speak was not violated when he was arrested for speaking loudly toward a private individual, not the police officers during a reported domestic dispute investigation); Price v. State, 622 N.E.2d 954, 960 (Ind. 1993) (police officers cannot materially burden an individual's opportunity to engage in political expression). Third, the termination in this case is by a judicial officer, but the challenged action is as an employer. As such it is subject to the same legal framework as an action of the executive branch, and is not entitled to the absolute immunity afforded judicial acts. See Forrester v. White, 484 U.S. 219, 229-30, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (in a suit for damages under § 1983, a state court judge was not entitled to absolute judicial immunity for his decision to demote and discharge a subordinate court employee because such employment decisions are administrative.) "[I]t [is] the nature of the function performed, not the identity of the actor who performed it," that controls the degree of immunity given to the function. Id. at 229, 108 S.Ct. 538.

II. Existing Remedies for Wrongful Discharge

Several existing Indiana statutory provisions and judicial precedents are relevant to the resolution of the question presented by the federal court.

A. Express Statutory Damage Remedies

A few states have enacted statutes creating or regulating claims for damages for state constitutional torts.3 Indiana, however, has no statutory provision comparable to 42 U.S.C. section 1983 creating an explicit civil remedy for constitutional violations by either individual officers or governmental entities.

Indiana does have legislation expressly affirming the free speech rights of "court employees." Ind.Code § 33-23-12-1 through 33-23-12-3 (2004). Specifically, the General Assembly has acknowledged that "the right of every citizen to freely participate in political activity is inherent in the guarantee of free speech contained in Article 1, Section 9" and that "employees in the judicial branch of state government have the same rights guaranteed to all Indiana citizens." I.C. § 33-23-12-1(1), (4). The same chapter provides that "a court employee" may not be "discouraged from engaging in political activity." I.C. § 33-23-12-3(1). A "court employee" includes any "person employed by . . . a city or town court." I.C. § 33-23-12-2(10). Assuming that to terminate employment for political activity is to "discourage" political activity by the terminated employee and others, there is no express remedy for violation of this statute.

B. Individual Liability for Official...

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