Colvin v. Bowen, No. P

Docket NºNo. P
Citation399 N.E.2d 835
Case DateFebruary 04, 1980
CourtCourt of Appeals of Indiana

Page 835

399 N.E.2d 835
Richard COLVIN, Appellant (Plaintiff Below),
v.
Otis BOWEN, Individually and as the Governor of Indiana;
Albert P. Tutsie, Individually and as the Chairman of the
Indiana Parole Board; Glenn E. Douthitt, Individually and as
a member of the Indiana Parole Board; Ruth M. Pappert,
Individually and as a member of the Indiana Parole Board;
Harland C. Hicks, Individually and as a member of the
Indiana Parole Board; John J. Barton, Individually and as a
member of the Indiana Parole Board, Appellees (Defendants Below).
No. P.S. 415.
Court of Appeals of Indiana, Third District.
Feb. 4, 1980.

Page 836

Richard Colvin, pro se.

Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellees.

HOFFMAN, Judge.

This action for injunctive relief and damages under the Federal Civil Rights Act (42 U.S.C.A. § 1983) was filed in the LaPorte Superior Court by plaintiff-appellant Richard Colvin against Otis Bowen, the Governor of Indiana, and the individuals who comprise the Indiana Parole Board. In his complaint plaintiff alleged that the procedures utilized by the defendants to deny him clemency impinged upon Article 1, § 18 of the Indiana Constitution and violated his Fourteenth Amendment rights under the United States Constitution. Defendants moved to dismiss the suit for lack of subject matter jurisdiction and because the complaint failed to state a claim upon which relief could be granted. In ruling on this motion the trial court issued the following order:

"The Court being duly advised finds:

1. That it lacks jurisdiction to hear and determine this matter.

2. That even assuming it had jurisdiction, the plaintiff has failed to state a cause of action since there is no statutory or constitutional right to clemency, such relief being solely discretionary and therefore, not subject to any procedural safeguards.

Page 837

"This cause is therefore dismissed."

The issues presented by this appeal include:

(1) whether the trial court erred in declining to assume jurisdiction;

(2) whether the trial court erred in ruling on the defendants' Ind.Rules of Procedure, Trial Rule 12(B)(6) (12(B)(1)) motion after concluding it did not have subject matter jurisdiction over the action; and

(3) whether the trial court erred by not appointing indigent counsel.

It is the plaintiff's contention that unless Congress confers exclusive jurisdiction on the federal courts then the state courts have concurrent jurisdiction to enforce rights created by a federal statute. Indeed the majority view has recognized that state courts do have concurrent jurisdiction over actions arising under § 1983. New Times, Inc. v. Arizona Board of Regents (1974), 110 Ariz. 367, 519 P.2d 169; Brown v. Pitchess (1975), 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772; Alberty v. Daniel (1974), 25 Ill.App.3d 291, 323 N.E.2d 110; Dudley v. Bell (1973), 50 Mich.App. 678, 213 N.W.2d 805; Brody v. Leamy (1977), 90 Misc.2d 1, 393 N.Y.S.2d 243; Williams v. Greene (1978), 36 N.C.App. 80, 243 S.E.2d 156; Kish v. Wright (1977), Utah, 562 P.2d 625; Terry v. Kolski (1977), 78 Wis.2d 475, 254 N.W.2d 704. While not disputing this majority rule, defendants nevertheless maintain that the trial court has the discretionary power to refuse to invoke jurisdiction. This assertion is erroneous.

"State judges, like judges of the United States, take an oath to support the Constitution of the United States. Article VI, paragraph 2, of the United States Constitution, provides in part:

'This constitution and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.'

"This constitutional provision not only permits state courts to exercise jurisdiction in enforcement of federal laws, to the extent permitted by Congress, but mandates that federal causes of action and federal rights, unless exclusively reserved to the federal courts, must be enforced by state courts.

"The ordinary rule, therefore, mandated upon the states is that they and their courts shall enforce the laws of Congress. Only if the Congress has exclusively reserved jurisdiction to the federal courts are state courts without power to act."

Terry v. Kolski, supra, 254 N.W.2d at 705, 706, 707.

And in Brown v. Pitchess, supra, there is the following language:

"The Attorney General's remaining contribution to the discussion is catastrophic metaphor, characterizing the finding of concurrent jurisdiction in this case as having loosed a Johnstown flood of litigation which unless checked promises to inundate the judicial system of this State.

"This dire prophecy is beside the point, implying as it does that exercise of jurisdiction is discretionary here. To the contrary, the existence of (concurrent) jurisdiction creates the duty to exercise it. (Gerry of California v. Superior Court (1948), 32 Cal.2d 119, 122, 194 P.2d 689, 692; see International Prisoners' Union v. Rizzo (E.D.Pa.1973), 356 F.Supp. 806, at 810.)"

119 Cal.Rptr. at 207, 531 P.2d at 775.

Thus state courts of general jurisdiction are not free to deny enforcement of claims growing out of a valid federal statute such as § 1983. See also: Dudley v. Bell, supra; Holt v. City of Troy (1974), 78 Misc.2d 9, 355 N.Y.S.2d 94.

The LaPorte Superior Court in which the instant action was brought is a court of general jurisdiction. It is vested with jurisdiction to entertain "all cases and actions at law and in equity whatsoever." IC 1971, 33-5-31-4 (Burns Code Ed.). Since the...

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13 practice notes
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • May 12, 1981
    ...courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 Page 898 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (1978); Rosacker v. Multnomah County, 43 Or.App......
  • Harlan Sprague Dawley, Inc. v. Indiana Dept. of State Revenue, No. 49T05-9007-TA-00038
    • United States
    • Indiana Tax Court of Indiana
    • December 6, 1991
    ...entertain a federal Sec. 1983 claim. Indiana accepted its obligation to adjudicate Sec. 1983 claims in Colvin v. Bowen (1980), Ind.App., 399 N.E.2d 835: Indeed the majority view has recognized that state courts do have concurrent jurisdiction over actions arising under Sec. 1983. [citations......
  • Marx v. Truck Renting and Leasing Ass'n Inc., No. 57130
    • United States
    • United States State Supreme Court of Mississippi
    • September 30, 1987
    ...729 P.2d 1075 (1986); Illinois: Alberty v. Daniel, 25 Ill.App.3d 291, 294-95, 323 N.E.2d 110, 113-14 (1974); Indiana: Colvin v. Bowen, 399 N.E.2d 835, 837-38 (Ind.Ct.App.1980); Iowa: Blessum v. Howard County Bd. of Supervisors, 295 N.W.2d 836, 844 (Iowa 1980); Kansas: Cooper v. Hutchinson P......
  • Harrah v. Leverette, Nos. 14321
    • United States
    • Supreme Court of West Virginia
    • October 7, 1980
    ...courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (1978); Rosacker v. Multnomah County, 43 Or.App. 583, 60......
  • Request a trial to view additional results
13 cases
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • May 12, 1981
    ...courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 Page 898 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (1978); Rosacker v. Multnomah County, 43 Or.App......
  • Harlan Sprague Dawley, Inc. v. Indiana Dept. of State Revenue, No. 49T05-9007-TA-00038
    • United States
    • Indiana Tax Court of Indiana
    • December 6, 1991
    ...entertain a federal Sec. 1983 claim. Indiana accepted its obligation to adjudicate Sec. 1983 claims in Colvin v. Bowen (1980), Ind.App., 399 N.E.2d 835: Indeed the majority view has recognized that state courts do have concurrent jurisdiction over actions arising under Sec. 1983. [citations......
  • Marx v. Truck Renting and Leasing Ass'n Inc., No. 57130
    • United States
    • United States State Supreme Court of Mississippi
    • September 30, 1987
    ...729 P.2d 1075 (1986); Illinois: Alberty v. Daniel, 25 Ill.App.3d 291, 294-95, 323 N.E.2d 110, 113-14 (1974); Indiana: Colvin v. Bowen, 399 N.E.2d 835, 837-38 (Ind.Ct.App.1980); Iowa: Blessum v. Howard County Bd. of Supervisors, 295 N.W.2d 836, 844 (Iowa 1980); Kansas: Cooper v. Hutchinson P......
  • Harrah v. Leverette, Nos. 14321
    • United States
    • Supreme Court of West Virginia
    • October 7, 1980
    ...courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (1978); Rosacker v. Multnomah County, 43 Or.App. 583, 60......
  • Request a trial to view additional results

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