*1 G85 KELLOGG, Demuth John Richardson, W.
Hervey Burnett, Mary Wilusz, et al., below), (Appellees/Plaintiffs Petitioners
v
. GARY,
CITY OF Hatcher, Richard G. Virgil Motley, L. and Frederick P. Kow sky, Respondents (Appellants/Defen , below)
dants Shettle,
John
(Appellee/Defendant below).
No. 45S03-9011-CV-710.
Supreme Court of Indiana.
Nov.
PIVARNIK, Justice. petition to on a to us cause comes This District Court Third from the transfer Plaintiffs, sought Transfer Appeals. citizens, brought action who class of city offi Gary, certain po of state cials, superintendent and the Shettle, alleged violations lice, T. John Statute, 42 Rights Civil the Federal Firearms Indiana and the U.S.C. § 85-47-2-8), *4 (now at Ind.Code codified Act handgun applica blank denying citizens by judg court entered The trial forms. tion in favor verdict jury ment on named city and the against and citizens awarded damages were No city officials. ap On superintendent. the state against reversed, and Appeals peal, the Court to wait the citizens the failure found in whole denied had been their claim until against bringing suit part before Indiana Tort 12 of section violated 34-4-16.5-12, Act, Ind.Code § Claims v. Gary City their claim. fatal to was N.E.2d 570. Ind.App., 519 (1988), Kellogg Ap Court of holding of the Because the United States that contravenes peals Casey in Felder Supreme Court hereby vacate grant transfer Appeals. the Court opinion of approximately facts show applica- January prior to years ten routinely handgun permits tions for Indiana, Gary, the office available forms These were Police. Chief of Department obtained Gary Police made Police State the Indiana from effort In an Gary citizens. available handguns on the the number control however, agreement Gary, streets Gary's between reached was apparently Motley, and L. Virgil police, acting chief of Gary, Gray, Terry C. Bradley, Hatcher, L. these Hilbert Richard G. mayor, its Angel, Katz, & Katz, Brenman Michael be distributed longer J. would no applications Merrillville, petitioners. effect sign A Motley's office. door, an- office the Chief's posted on Krahulik, M. Grace Price, D. P. Jon John will applications gun "No more nouncing: Bingham Sum- Quay-Smith, Curry, Nana January out effective Indianapolis, Gil given Spilman, & mers Welsh Thereafter, Office." you.!!! Chief Thank Counsel, Gary, City of Jr., Corp. King, bert nev- Department Gary Police although the respondents. Gary, for er refused to accept applications, appli action was procedurally barred their cation forms no longer were available failure to comply with the ITCA. there, and the record indicates citizens of Gary could not obtain these forms else Pursuant ITCA, tort claims where. Suit was brought in busi political subdivision of the State persons, ness an attorney, and a home are barred unless proper notice given owner in the community, who testified they within one-hundred and eighty (180) days. needed guns for security. All were IC 34-4-16.5-7. The ITCA provides also gun refused applications due to blanket that within ninety (90) days after notice, policy discussed above. Motley v. Kellogg governmental entity must approve or (1980), Ind.App., 409 N.E.2d 1208-09, deny the claim in writing or it is automati trans. denied. Plaintiff sought prelimi cally denied. IC 84-4-16.5-10. Finally, a nary injunction prohibiting further with person may not initiate suit unless a claim holding license applications. has been denied in whole or part. IC The trial court entered an order enjoining 34-4-16.5-12. State Police Superintendent Shettle from the arbitrary capricious complied distribution with the notice re- applications for handgun permits. quirement, Shettle but did not wait until their *5 was further ordered to make claim available to had been denied before initiating suit. Acting Gary Police Chief Motley such num The defendants raised this violation as a ber of handgun permits as he shall request defense but the trial court ruled the ITCA to be made available to the citizens of Gary did not apply. requesting the same for the purpose of applying for handgun permits. Defen The citizens claim they did not have to comply because they alleged a federal appealed dants from the granting of the claim under 42 U.S.C. 1983. Citing § the preliminary injunction, and the Court of in law Indiana and other jurisdictions, the Appeals affirmed. Id. Court Appeals found argument this Two and years later, one-half Charles merit, without holding when a litigant Boone obtained leave to file a complaint chooses a state forum, court procedural the and petition for issuance of a temporary framework of the ITCA overrides that of restraining order against Superintendent 1983. opinion § of the Court of Ap Shettle and Police Chiefs Motley and Fred- peals appeared to be correct until the Unit erick P. Kowsky. alleged Boone that those ed States Supreme Court handed down officials denied his request process to Felder v. Casey (1988), 487 108 fifty (50) about handgun applications for B on June & Security W Agency. The trial court 1988. Felder came from the State of Wis allowed Boone join plaintiffs' the class consin and involved the same set of cireum- and issued a restraining against order the stances and a tort claims act provi with officials. The officials filed their motion sions similar to Indiana's. The Court held partial for summary judgment which al- that under principles the federalism and leged non-compliance with the Indiana Tort the supremacy (Art. VI, clause 2) cl. Claims Act the ("ITCA"). The trial court de- Federal Constitution, 42 U.S.C. nied § the motion and the trial, case went preempted the application resulting in jury Wisconsin's verdict in the citizens' favor against and notice of claim statute and its to a officials. action § brought No in monetary court, Wisconsin state damages were because assessed Superintendent enforcement of the Shettle. statute The trial stood as an court subsequently issued a declaratory obstacle to the accomplishment and execu judgment tion of the full purposes permanent and objectives injunction in Congress. citizens' favor $524,600.00 The Court went on to hold that awarded attorneys fees to the citizens' counsel. The state notice-of-claim statutes inapplica are city and its appealed officials and the ble to federal litigation § for two of Appeals reversed, finding the citizens' reasons, main as follows: trial court's certain of 5. Whether the notice
First, ... improper; and instructions jury the exercise burdens requirement rights vice- civil by forcing federal proper- fees were attorneys' 6. Whether courts in state redress seek who tims 1988. to 42 U.S.C. pursuant § ly awarded entire- that is requirement comply with comply with not did the citizens Because litigation rights civil from ly absent ITCA, the trial court's provisions is incon- ... This burden courts. federal puni- compensatory separate award with effect design and in both sistent theory tort" this "state damages under tive civil federal aims compensatory citizens Whether hereby reversed. enforce- Second, ... laws. rights cause separate maintained have could actions statutes § of such ment Indiana under damages in tort for action frequently will court in state brought we do not decide. issue is a moot law out- different produce predictably litigation rights civil federal comes below, now hold forth set For reasons litigation whether solely on based of action cause have court. federal in state place takes 1988 and 42 U.S.C. pursuant outcome- apply such not may States (at herein times its officials city and entertaining when law determinative "city") are to as collectively referred in their substantive federal We find 1983. from suit immune courts. may it any objection city has waived at Gary Felder, excluding court's trial had to the have added); (emphasis hold, at 139-40 further We jury. residents Corp. School Heights Hamilton Werblo certifying however, erred trial court also See Ind., N.E.2d accord- damages; action as a class *6 — —, Rose Howlett compensatory of limit the amount ingly, we (state well as to those damages awarded punitive and over jurisdiction have courts as federal dan- in immediate were who members class may not cases, states individual but § expire due to licenses having their ger of heritage to law common own rely on their We herein. defendants of the actions the persons liability federal from exempt were the citizens find that because further liability). subjected to Congress of purposes for parties prevailing the Ac- this issue. of dispositive Felder to an entitled 1988, they are U.S.C. § and va- transfer grant now cordingly, we attorney's fee as a reasonable of award Appeals of the opinion the cate of fees costs, amount the but of the part N.E.2d at 519 reported excessive. awarded trial court the Appeals' decision the Court Because where supplied facts will Additional raised issues all address did not necessary. below, appeal officials its city and the follow- the leaves vacating its decision our I. resolved: to be issues ing consolidated a cause have the citizens were 1. Whether civil their claim citizens The to 42 U.S.C. Gary its pursuant and damages city of for the action when violated application supply of off the 1983; cut officials § city of Furthermore, the and officials handgun permits. the 2. Whether for forms injunctive obtained suit; the citizens after even from immune Gary are issue below defendants against the in ex- relief erred court trial the 3. Whether forms, the evi- jury; the process the Gary residents cluding im- its officials city and the showed in certi- dence erred trial court 4. Whether applications certain recommended properly action a class as fying this completely instances in some compen- for denial jury's award and whether applications forward failed improp- damages was punitive satory and police. state superintendent er; Rights Civil Act, 42 U.S.C. § zens were not even able to apply. Even provides, pertinent part, as follows: after they obtained their injunctive relief,
Every person who, under color of evidence showed similarly any per- situated statute, ordinance, regulation, custom, or sons were treated differently with regard usage, any State or Territory or the to whether they received a favorable rec- District Columbia, subjects, or causes ommendation from the Gary Chief of Po- to be subjected, any citizen of the United lice. States or person other within jurisdic- Before proceeding further, we first note tion thereof to the deprivation the trial court designated plaintiffs' rights, privileges, or immunities se- class as follows: cured by the Constitution laws, 1) present all holders of gun permits shall be liable to the party injured in an commencing on January 1978 and end- law, action at suit in equity, or other ing February 1980; [and] proper proceeding for redress. For 2) all citizens of City of Gary who purposes of section, this any Act of Con- are desirous of obtaining gun permit. gress applicable exclusively to the Dis- Record at 66. As trict of class, Columbia shall be considered to citizens be a denied access to statute of the procedure state District of Columbia. obtaining handgun licenses. To this ex- 42 U.S.C. 1983 (emphasis added). tent, agree they were denied protec- citizens claim three bases for recovery un- tion of a procedural law available to der 42 U.S.C. (1) 19838: denial of equal other Indiana citizens. However, protection of the laws in violation of the does not necessarily entitle them to an award of Fourteenth Amendment; (2) violation of a damages. Turning to their claim of dispar- constitutionally protected right to bear ate treatment within of Gary itself, arms under the Second Amendment; presented (8) that, deprivation evidence after a property or liberty in- injunction issued, similarly terest without process due situated of law in viola- Gary citizens tion were not treated Fifth equally. and Fourteenth Amend- The Gary Chief of ments. We Police now address recommended each of these some class theories members' applications of recovery turn, for ap- keeping in proval *7 mind and our some for standard denial. However, of review: the trial court's judgment even if will be certain class affirmed if sus- members received arbi- tainable on any theory or basis found in trary and capricious the recommendations for record on appeal. denial, Havert the class could Caldwell not recover as a (1983), Ind., whole 154, for disparate N.E.2d 157. treatment between its own members. Moreover, the evidence Equal Protection showed that Superintendent Shettle issued handgun The Equal licenses to Protection Clause of plaintiff the class the Fourteenth Amendment provides, in members police over the negative chief's pertinent part, as follows: recommendations. No State shall ... deny to person correctly notes that although within jurisdiction its equal the protec- the citizens alleged equal an protection vio- tion of the laws. lation in their Second Amended Complaint, Const., U.S. XIV, Art. they 1. The never citizens tendered equal an protection maintain they were deprived of equal pro- instruction to jury. the Therefore, the city tection of the argues, because, the jury's verdict could not possibly laws unlike other citizens, Indiana they were denied access based to on alleged an equal protection the procedure which allowed them to violation. Moreover, the damages instruc- register for handgun addition, licenses. In tion submitted to jury the directed them to within the city itself, the citizens claim an base award, their any, if on deprivation equal protection violation because may- of liberty and property under the Four- personal or's bodyguards were able get to teenth Amendment. This pro- instruction handgun licenses while the rest of vided, the citi- pertinent part: to the power and reserved injury usurp police of to the elements Among Amend the Second it and offended states are: consider you should
harm Constitution, the United States to constitutional ment their of The violation 1. provides: of which the defense for arms to bear necessary Militia, being 1, regulated A well Article under the State and themselves Constitution, dep- State, right a free 32, security of Indiana to Section Arms, under property keep and bear liberty and to people rivation applicable Amendment, including infringed. 14th not be shall statutes; federal The Miller Const., II. Amend. at modification 7, given with claims, holding: No. Inst. these rejected as the Insofar record. 491-92 pages tending any evidence In the absence for apply to unable Gary were citizens use of or possession that show January licenses between less than having a barrel "shotgun the laws 1980, right under 5, February this time at length" eighteen inches Indiana other to which this state relationship to the some reasonable has deprived entitled, they were hold we regu- efficiency a well or preservation in violation lawof protection equal the Sec- militia, say that cannot we lated However, Amendment. Fourteenth right guarantees Amendment ond on entered restraining order temporary an instrument. such keep and bear in- temporary 1980, 5, February 818, 83 178, at 59 S.Ct. Miller, at 1980, February on entered junction cases federal 1209. Numerous L.Ed. did The citizens situation. this remedied prop Miller, citing it for have followed an damages compensatory seek not a Amendment the Second osition violation, rather but equal protection only "a limitation right, but grant of deprivation compensation sought Na and the Congress power of upon interest with- or property a claimed See, eg., New Government...." tional Indeed, since law. process of due out N.H. (1976), 116 Hampshire v. Sanne to award not instructed jury was v. Illinois Presser quoting A.2d violation, the equal protection an on based (1886), 116 U.S. theory of consider not to urges us Moreover, the Second L.Ed. the defen- Because appeal. recovery on incorporated never been has Amendment monetary dam- appealing are dants applicable made Fourteenth into the awarded, relief injunctive not the ages and Therefore, is no there states. now ar- cannot the citizens agree keep and Amendment the Second compensato- to either they are entitled gue do not handguns, which arms, such as bear equal damages based ry punitive relationship reasonable some have was never jury theory which protection *8 regulat efficiency of a well or preservation on. instructed militia. ed Amendment Second Process Due theory of recov next The citizens' recovery final basis citizens' v. Miller States In United ery also fails. Clause Due Process on the grounded 816, L.Ed. 174, 83 59 (1939), U.S. 307 pro Amendment, which the Fourteenth Act withstood Firearms 1206, National any person "deprive shall no state vides by Jack brought challenge a constitutional pro due without life, property, liberty, or indict Layton, who Frank Miller XIV, Const., Art. U.S. law...." cess of commerce interstate transporting ed for city deprived is whether 1. At issue shotgun hav twelve-gauge a double-barrel interest property liberty or aof (18) inches the citizens eighteen than less ing a barrel The citizens law. process due firearm without required this The Act length. they established evidence maintain Miller not. and it was registered, be follow or more of one deprived face, were on its the Act challenged Layton without interests property liberty or ing attempt an unconstitutional it was alleging
693
process
due
of law:
"right"
to bear
protected
are
by the Fourteenth Amend
arms,
"right"
to carry a handgun with ment's Due Process Clause:
license,
a
"right"
to a
license,
It
apparent
from our decisions that
"right"
to apply for a handgun license,
there exists
variety
of interests which
"right"
to obtain a blank handgun
are difficult of definition but are never-
license application form. We first turn to
theless comprehended within the mean-
question
whether
of these
ing of
"liberty"
either
or "property" as
"rights"
constitute
a liberty or property
meant in the Due Process Clause. These
interest entitled to Fourteenth Amendment
interests attain this constitutional
status
protection.
by virtue of the fact
they
that
have been
initially recognized
protected
by
In Board
Regents
(1972),
v. Roth
408
law,"
and we have repeatedly ruled
564,
2701,
U.S.
92 S.Ct.
548,
33 L.Ed.2d
procedural
guarantees of the
United States Supreme
spoke
of a
Fourteenth Amendment apply whenever
protectible property interest in the follow
the State seeks to remove
significant-
or
ing terms:
ly alter
protected
status.
To
property
have a
benefit,
interest in a
710-11,
Id.
96
1165,
S.Ct. at
person
clearly must have more than an
at 419. In the footnote to the above-quoted
it,
abstract need or desire for
He must
passage,
the Paul Court noted:
have more than a
expectation
unilateral
interests,
course,
There are other
protect-
must,
of it.
instead,
He
have
legit
by
recognition
ed not
by
virtue of their
the law
imate claim entitlement
to it. Itis a
particular
of a
they
State but
guar-
because
are
purpose of the ancient
institution of
anteed
provisions
in one of the
of the Bill of
Rights
"incorporated"
which has been
property
protect
those
into the
upon
claims
Fourteenth Amendment.
people
rely in
lives,
their daily
5,
Id. at 710-11 n.
Appeals recognized this
by procedural mechanism
(1980), Ind.App.,
v. DeBard
in Schubert
handgun possession,
as
regulates
Indiana
it stated:
when
398 N.E.2d
follows:
our constitution
it clear that
think
We
carry a
desiring a license to
person
A
citizenry
right
to bear
provides our
apply
shall
to:
handgun
self-defense.
arms for their
police
corresponding
(1)
chief of
or
handed down on
was
Id. at 1341. Schubert
municipal-
law enforcement officer
Mayor
after
weeks
January
two
resides;
ity in which he
announc
press conference
Hatcher held his
statute,
appli-
blank
In accordance with
forms would
application
ing
handgun
handgun permits were
cation forms
longer
made available
no
Gary citizens at
available to
normally made
Ap
Court of
agree with the
Gary. We
The
Office.
Gary Police Chief's
Schubert, and now find
peals' analysis in
mechanism at the
procedural
cut off this
citizens to bear
right
Indiana
that this
to distribute
when it refused
outset
and for the
their own self-defense
arms for
The
handgun application forms.
blank
an interest
both
defense of the state
that no one's
quick
point
to
out
protected
which is
liberty
property
confiscated,
application was
no one's
to the Federal
Amendment
the Fourteenth
expire, and no one was ultimate-
allowed
Quilici
Village
v.
Constitution.
Cf.
However, by
handgun permit.
ly denied a
Cir.1982),
695 F.2d
Morton Grove
actions,
ac-
city denied the citizens
its
prohibited
(village control ordinance
procedural process which
the state's
cess to
Ilinois,
Grove,
Morton
handguns within
right under
guaranteed them a substantive
challenge; prohibi
withstood constitutional
the Indiana Constitution.
police
exercise of the
a valid
tion held to be
has
one
city correctly notes whether
Constitution
Illinois
power
to which the
in a firearms
property interest
citizens'
explicitly subjected its
for a
license,
opposed
as
arms),
denied
cert.
keep and bear
license,
large part on
depends in
given to the state
amount of discretion
liberty to the extent
interest
is one of
This
Erdelyi
O'Brien
licensing authorities.
to be
law-abiding citizens
that it enables
Cir
Cir.1982),
F.2d 61. The Ninth
(9th
danger of violent
from the threat
free
held that
Erdelyi
Appeals
cuit
interest
property
also a
There is
crime.
interest
property
not have
plaintiff did
protecting
one's
stake,
example,
handgun license.
first
obtaining her
them, as in
transporting
when
valuables
statutes
pertinent court looked
brings
who
of a businessman
the case
at‘the
stated:
in his bank across
deposit
sum of cash
issuing au-
gives the
state law
town.
[wJhere
*10
deny
grant or
discretion to
thority broad
for the defense
to
arms
This
bear
regulated
closely
in a
applications
license
however,
property,
his
self and
of one's
have a
do not
field,
applicants
initial
regulate the
may
The state
not absolute.
property right in such
protected
licenses
tion to
license").
withhold the
Therefore,
by the Fourteenth Amendment.
provided that all of the conditions of the
Erdelyi,
680 F.2d
Indiana Firearms
at 63. In
met,
Baer v. Wauwatosa
Act are
appli
the
(7
cant
legitimate
has "a
claim
entitle
Cir.1983),
716 F.2d
the
th
ment" in a handgun
Seventh Circuit
Therefore,
Court
license.
Appeals
held that
under the
aspirations
principles set
Roth,
forth in
obtain a firearms
su
license are
pra, provided
not
that all of
constitutionally
the
protected as a
conditions of
property
interest under
the Indiana Firearms
Due
met,
Process
Act
Clause of
are
now
recognize in
this state a liberty
Fourteenth
or property
Amendment.
interest
in carrying
a
with a li
In
case,
the instant
however, no discre-
cense.
tion was involved in granting or denying
Finally, in
applications
McKinney
(7th
v. George
when
application
Cir.
1984),
process
1189-90,
F.2d
itself was cut off
at the
Seventh
very out-
Circuit recognized
set. Obviously,
where state
there can be
substantive
no discretion
grants
law
an individual
liberty
involved in
reviewing
or
application
proper
forms if
they
ty interest,
are not
made available
one
public
deprived
to the
cannot be
of that
substantive
interest
first
without
process
instance.
due
Erdelyti and Baer can
law.
In
be distinguished
McKinney,
police
state
point alone,
on this
officers
since
arrested
plaintiff
they both
and had him
involved an exercise
involun
of discretion
tarily
by the
committed to a
licensing
state mental
authority in
institu
denying one
tion. After holding
firearms
that the
license to single
arresting
offi
citizen. In this
case,
cers
probable
had
the city
cause and
refused to
therefore
distribute
did
blank
not deprive
McKinney of
his
process
application
due
any
forms
its citizens.
rights, the
court
went on
say:
Obviously,
Police
Motley
Chief
could not
exercise his broad discretion in
a state can if
recommend-
it wants confer extra liber-
ing
applications
for approval or
ties
denial
which the
process
due
clause will
since
process was cut
off in
protect
then also
against deprivations
the first
without
instance.
process.
due
were
property and
a
either
and is both
being deranged without
Amendment
suspected
per
purposes of
1983.
liberty
own
interest for
or the officer's
signed petition
§
a
court
McKinney
sonal observation.
injunctive relief was
After
the
procedur
a state created
this was
held that
the
awarded,
from
applications
certain
right which
not a substantive
rule and
al
for de
recommended
class were
plaintiffs'
liberty interest within
the level of a
rose to
nial,
similarly situated
while others
Amend
the Fourteenth
meaning of
the
However, the
approval.
recommended
(quoting Shango
Jurich
at 1190
ment.
Id.
Superintend
showed that
evidence further
(7
1101).
Cir.1982), 681 F.2d
th
to
handgun permits
issued
ent Shettle
maintains,
in
Likewise,
citizens'
the
the
plain
on behalf
those who testified
mere
deprived of a
case were
the instant
negative
police
chief's
class over
tiffs'
Mayor
right
procedural
when
created
state
allege that
The citizens
recommendations.
Motley to cut
Police Chief
directed
Hatcher
ultimately is
licenses were
although these
handgun license
supply
blank
off the
(8)
eight
to
sued,
delay of
there was a
unper
argument is
This
application forms.
(16)
occasioned
processing
sixteen
weeks
access
suasive. Without
negative recom
improper
by
allegedly
underlying substan
process, the citizens'
however,
record,
does
mendations.
a
carry
handgun with
right
to
a
tive
to
The citizens ask us
this out.
not bear
requirements
all
{provided
Superintendent Shet-
a letter from
compare
met),
cut off
Act are
Firearms
Indiana
January
Spence,
Richard
dated
tle to a Mr.
as well.
superintendent
states
in which the
DeRobertis
city cites Azeez v.
Finally, the
(10)
for the
(8)
ten
weeks
eight
to
it takes
(N
8, for
.D.Ill.1982),
F.Supp.
process his
office to
superintendent's
state
state
that the mere violation
proposition
testimony of Charles
with the
application,
is not a
or officials
by a local official
law
(12)
it
twelve
Boone,
testified that
took
who
At issue
right.
federal
of a
violation
(16)
Security
for B & W
weeks
to sixteen
offi
prison
state
the failure of
Azeez was
get
their
employees to
Agency
brought
grievances
act on certain
cials to
Kow-
the Police Chief
permits issued over
court held
The Azeez
prisoner.
a
for denial
negative recommendations
sky's
claims did
plaintiff's
constitutional
record,
it
From this
of 1982.
in the Fall
relief under
claim for
not state a
negative
by a
delay
occasioned
appears
case,
However,
unlike
instant
(4)
four
for denial was
recommendation
merely
of in Azeez were
rights complained
(8)
weeks,
eight
to sixteen
(6)
not
six
Indeed,
Azeez
in nature.
procedural
portion
significant
a
(16).
delay, or
This
proce
"state created
court admitted
to the fact
thereof,
attributed
could also be
a may be evidence
protections
dural
seeking
Security Agency was
that B & W
Azeez, 568
right."
parent
substantive
handgun permits at or about
116-120
case, the
In the instant
F.Supp. at 10.
was further evidence
time. There
same
in the
right
rooted
parent substantive
for denial without
that a recommendation
Accordingly, pursu
Indiana Constitution.
usually resulted in a ten
specified reason
Roth,
progeny,
its
supra, and
ant to
police
processing
while the
(10)day delay
above,
hold this
we
set forth
for reasons
nega
his
required
supplement
chief was
prop
right to be both
parent substantive
appropriate
with
tive recommendation
purposes of
liberty interest
erty and
reasons for denial.
indepen
it
stems
1983 because
of state law.
source
dent
event,
argue these
the citizens
depriva-
processing constituted
delays reasons,
now
foregoing
For all of
interest with-
property
right to bear
of a
created
tion
is a state
hold there
agree.
law. We do
process of
out due
carry
right
includes
arms which
in a
not result
processing
did
delay
This
license,
that all of
provided
handgun with a
underlying substantive
Firearms
deprivation of the
the Indiana
requirements of
a license.
handgun with
carry a
right
protected
met. This
Act are
*12
The state's licensing process is
up
set
in partment which was not previously record
such a way that the
superintendent
state
ed "returned." Her compilation further
can,
discretion,
in his
override a
police
local
showed that there
forty
(45)
five
more
negative
chief's
recommendation. That is
applications returned to
Gary
Police
exactly
happened
what
(4)
here. A four
to Department
than forwarded to the state
(6)
six
delay,
week
even if
by
occasioned
a
superintendent
in 1981 and one hundred
police
local
chief's improper recommenda- ninety
(198)
three
applications
more
re
denial,
tion of
at most constitutes
depri-
turned than forwarded in 1982. It would
vation of a state
procedural
created
right
appear from this compilation that this was
which "is not itself
liberty
a
interest within not a
delay
mere
in the system, but a
the meaning of the Fourteenth Amend- breakdown in
process
doubt,
itself. No
ment." Shango,
G99 omitted). Justice Stevens went on to dis The second component is a claim of sub- cuss whether the existence of an available stantive process. due regard, state remedy would defeat a 1988 claim argue citizens the deprivation herein was and concluded that an available state reme arbitrary capricious and lacked a rea- dy would preclude never a substantive due sonable basis. agree. We mentioned, As process claim, but in certain cireumstances presented. evidence that out of may preclude a procedural process due 600-800 handgun permitees in Lake Coun- claim: ty, only one crime, committed a forgery, *14 If the claim is in the (a first category which did not involve the use of a handgun. violation of one of specific constitu- Suspension of the handgun applica- guarantees tional of the Bill of Rights), a process tion did nothing less deprive than
plaintiff may invoke regardless 1983 § the citizens of right guaranteed to them the availability a state remedy. of under the Indiana of Constitution. The cause
may
noble,
have been
given Hatcher's vocal
concern about the purported rise in the
Similarly, if the claim is in the second
amount of violent crime in Gary, but the
(a
category
violation of the substantive
facts show that handgun permitees were
component of the Due
Clause),
Process
not
the ones committing the crimes.
plaintiff may also invoke
In-
1983 re-
§
deed, there was testimony from Theodore
gardless
the availability
a state
of
of
Abrams,
one member of
plaintiffs'
remedy.
class,
that
crimes
person
his
property had actually been thwarted in the
A claim in the third category-a
proce-
past because he was able to legally arm
process
dural due
claim-is fundamental-
himself with a handgun. Record at 1783-
ly different.
.
deprivation
itself does not necessarily reflect any
"abuse" of
power.
state
In a
pro-
claims the Indiana
Tort
Claims
Act
fulfills federal
process
due
process claim,
cedural due
require-
it is
not
deprivation
However,
of
ments.
property or
liberty
availability
is
of a state
remedy
is a
unconstitutional;
relevant
it
only
consideration
is the deprivation
of
property
regard
with
to
process
without
due
citizens' claim proce-
adequate
process.
law-without
dural due
procedures.
The availability of a
remedy
state
does not enter into
analy-
our
474
337-39,
U.S. at
106
678,
S.Ct. at
88
sis of the citizens' substantive due process
(footnotes
L.Ed.2d at 672-73
and citations
rights. As
Supreme
omitted,
Court stated in
emphasis supplied
part).
This
Zinermon:
three-part analysis was most recently artic
ulated
Supreme
Court in Zinermon
the Due Process Clause contains a sub
v.
—,
Burch
494 U.S.
110 S.Ct.
component
stantive
that bars certain ar
975,
100,
108 L.Ed.2d
a case involving the
bitrary, wrongful government actions
procedural
process
due
rights of a mental
"regardless of the fairness
proce
patient who successfully
claimed he had
dures used
implement
them." Dan
been improperly admitted and detained at
Williams,
iels v.
474
U.S.
88
Florida
Hospital
State
We now turn to
L.Ed.2d
(1986).
less
policy
had
if her claim
O'Brien
him for the
compensate
be available
is true.
denying
applications
all
rights.
of these
deprivation
Zinermon,
only
as
instant
vested with
part, 36-4-5-3
duties of
Mayor Hatcher
its
action,
gun control
council
tive
handgun license
thority when
doubtful
felt
on
guns altogether
withstand
cree alone.
cious
zens
Constitution).
citizens of
availability
above,
The executive
We find the
(5)
(4)
tive
tive
siders
Accordingly,
officials
state level
due
this was
have
arbitrary and
Recommend,
Call
and lacked
body actions
body when
but an abuse
ordinance,
application
then could
case
follows:
proper;
process
L.Ed.2d at
mayors and
special
find
a
enumerates
successfully proven
Gary were
aof
policy to
legislative
adequately demonstrates
challenge under
he
appropriate
is of
such
the actions
Hatcher
cutting off the
post-deprivation
evidence
could
in the
shall:
violation.
a reasonable
suspended the
meetings of the
necessary;
perhaps
have drafted
process
that
wrongful
no moment.
writing,
113-14.
provides,
the reasons
an ordinance
arbitrary
authority.
have
power as well.
city of
—,
the executive
city council who
exceeded
presented
(although it
banning hand-
forms to
proposed his
powers
the Indiana
mayoral de-
government
basis.
Gary, if it
a substan-
remedy on
supply pertinent
The
The citi-
city and
his aw
legisla-
legisla-
in the
stated
would
capri-
voted
con-
city
IC
at
is
is
Erdelyi,
proper
ted).
ant
474 U.S.
post-deprivation
citizens' due
over,
fore
noted
should
from this
ed because
have been
decision
in Daniels
a §
L.Ed.2d
Claims
objection to the
has been
*15
However,
procedures,
process] claim
when the
vides
tion
no other
property or
system of
cases
dures,
a substantive
dural
Once
to the Indiana
1983 claim.
consequence, when
the United
court and obtain
according to the
Accordingly, the
hearing is
remedy for
have been
Act.
again, Justice Stevens'
due
in the other
at 673-74
here do
a
in Damiels.
a valid §
passage alone
constitutionally
Erdelyi was handed
provides some
they,
challenge
alleged.
sought
process
recovery for the
it does not
regime of state
process
339-40,
F.2d at 64 n.
liberty, and
no constitutional
alleged deprivation violates
procedures
federal
is not stated.
not
too,
precluded
States
(footnotes
clearly
Moreover, it should be
damages,
validity of the State's
claim
via
Firearms
1983
two
challenge any of the
106 S.Ct.
to
were able
necessarily follow
right-if
city,
the Indiana
the State's
categories-those
Supreme Court's
[1]
that the citizens
injunction pursu-
[8]
lacks a colorable
not
[procedural
insight:
unobjectionable
available
from
concludes, the
omitted). The
deprivation of
(citation
if
when there
a
tort
the citizens'
feasible,
Act. More
concurrence
any,
predepriva-
For, unlike
at
not violat-
down be-
pursuing
law
violation
679,
go
should
proce-
proce-
omit-
Tort
pro-
into
due
[2]
88
law;
is whether
only issue
state
the citi
whether
consider
We next
clearly
not
hearing was
predeprivation
pur
precluded
have been
zens should
feasible.
claim be
process
due
suing
procedural
case,
predeprivation
no
In the instant
adequate
availability of an
cause
Daniels,
supra,
Unlike
hearing was held.
again cites
city
once
remedy.
negligence),
by jailer's
fall caused
(slip and
Cir.1982),
680 F.2d
(9th
Erdelyi v. O'Brien
predepri-
that a
nothing
suggest
there is
addressed,
in a
61,
the Ninth Circuit
where
"clearly
feasible."
hearing was
present
vation
footnote,
issue
precise factual
(1984), 468
v. Palmer
Hudson
in the instant case:
also
ed
See
517,
U.S.
3194,
104 S.Ct.
82 L.Ed.2d
484,
494).
L.Ed.2d
"An essential principle
(predeprivation hearing not feasible
pre
process
due
is that a deprivation
life,
vent random and unauthorized
pris
acts of
liberty, or property
preceded
'be
by notice
guard)
and Parratt
Taylor (1981),
v.
451 and opportunity for hearing appropriate to
527,
U.S.
1908,
101 S.Ct.
420,
68 L.Ed.2d
the nature of the case'"
Toney-El v.
part
overruled in
by Daniels,
supra,
(pre-
(7th Cir.1985),
Franzen
777 F.2d
deprivation hearing not
prevent
feasible to
(citing Cleveland Board
Education v.
negligent
prisoner's
loss of
kit).
hobby
(1985),
Loudermill
U.S.
Hypothetically, if
city
was able to show
494, 503),
cert.
it was in a state of emergency that necessi
nom.,
denied sub
Toney-El
v. Lane
tated the immediate confiscation of all
106 S.Ct.
90 L.Ed.2d
handguns
suspension
of the licensing 994.
process,
then perhaps a predeprivation
In Eldridge,
supra,
the United States
hearing may not have been feasible. One
Supreme Court heard a Fifth Amendment
would
pressed
be hard
imagine
such a
procedural
process
due
challenge to the
Indeed,
scenario.
city
does not and
constitutionality of
procedures
for ter
cannot advance
argument.
At
minating disability benefits. The Court
least,
very
mayor
could have held an
that,
held
unlike the case of
recipi
welfare
emergency session of
council and
ents treated in Goldberg v. Kelley (1970),
proposed
ordinance banning hand
guns in Gary if he felt that was a reason
no evidentiary hearing
required prior
Quilici
able solution.
Village
*16
Cf.
the termination of Social Security disability
(7th Cir.1982),
Morton Grove
261,
695 F.2d
payments. The Eldridge Court stated the
(1983),
cert. denied
863,
464 U.S.
104 S.Ct.
following:
194,
whether a Supreme Court, United States has the authority to im- in plement a policy which would away (1984), take 183, Davis v. Scherer 468 U.S. 104 right 3012, of all citizens jurisdic- within his 139, S.Ct. 82 L.Ed.2d reh'g denied apply tion to for a 1226, 26, license. We 105 S.Ct. 82 hold he 919, has no such authority. L.Ed.2d qualified As the stated the immunity city's officer, chief executive standard as he has no follows: legislative role other than recommending, Whether may prevail an official in his in writing, legislative body actions qualified immunity depends defense upon that he proper. 86-4-5-8(4). considers IC "objective reasonableness [his] This he did not do. conduct as measured reference to
704 reversed, Supreme Court The United States No other
clearly
law."
established
qualified im
considering only the issue of
to the issue
are relevant
"circumstances"
munity.
immunity.
qualified
"totality of
rejected
L.Ed.2d at
at
The Davis Court
104 S.Ct.
Id. at
in
brought by
test as articulated
a suit
the circumstances"
involved
147. Davis
Rhodes,
on
Scherer,
operator
and based its decision
radio-teletype
supra,
a
Gregory
had "demonstrated no
employer, the Florida
fact that Scherer
against his former
consti
Patrol,
clearly
dis
of his
established
improperly
violation
Highway
Davis,
rights."
468 U.S. at
pretermina
a formal
tutional
charging him without
(em
L.Ed.2d at 148
at
hearing.
prompt post-termination
tion or a
had
found that Scherer
District Court
Court con
phasis
original).
in
The Davis
tinued:
job
and that
interest
his
property
Highway Pa
Florida
which the
procedures
not be held liable
"an official would
discharge him were consti
trol followed
1988 unless the consti-
damages under §
Fourteenth
inadequate under the
tutionally
to have
alleged
he was
tutional
statutory provi
Amendment; that Florida's
at the
'clearly established'
violated
employ
Officials
a state
of the violation."
removal of
governing
time
sions
unconstitutional;
do not
that the offi
for constitutional violations
sued
ee were
had
Highway Patrol
the Florida
immunity merely
cials of
qualified
be-
lose their
immunity from suit
qualified
forfeited their
violates some statu-
cause their conduct
pro
due
because Scherer's
provision.
tory or administrative
at the
clearly established
rights were
cess
at
at
104 S.Ct.
Id. at
days after the
Five
time
his dismissal.
omitted,
origi
(citations
emphasis in
order, the
District Court's
entry of the
nal).
immediately follow
In the footnote
held, in an
Appeals
Fifth Circuit Court
the Davis
above-quoted passage,
ing the
case,
officials
that Florida
unrelated
noted,
pertinent part:
due
violated no well-established
1978 had
rights
con-
sued for violations
officials
permanent
discharging
process rights
like
regulation,
or
ferred
a statute
or
pretermination
employee without
of constitu-
sued for violation
officials
hearing. Weis
post-termination
prompt
their immuni-
rights, do not forfeit
tional
Cir.1981),
(5th
651 F.2d
Donigan
brod v.
or
violating
other statute
ty by
some
reconsideration,
the District Court
334. On
present
case
regulation.
holding that the officials
prior
vacated its
regu-
that the state
there is no claim
...
had forfeit
Highway Patrol
of the Florida
laws that authorized
lation itself or the
violating
immunity by
Scherer's
ed their
a cause of action
promulgation create
its
rights.
constitutional
clearly established
basis for an
provide
Nevertheless,
reaffirmed
the District Court
brought under
action
basis
monetary damage award
its
n.
at 3019
194 n.
Id. at
had violated
proof
that an official
original).
(emphasis in
n. 12
clearly
constitutional
established
case,
claim
the citizens do
In the instant
the offi
way to overcome
the sole
was not
*19
Indiana Constitution
of the
that violations
Citing
immunity.
qualified
claim of
cial's
provide the
Act
Firearms
and the Indiana
232,
(1974), 416 U.S.
v. Rhodes
Scheuer
under
1983.
of action
90,
a cause
1692,
§
basis for
1683,
40 L.Ed.2d
247-48, 94 S.Ct.
arms in
stated,
right to bear
general
a
As
"totality
103,
applied
the District Court
1,
82,
Art.
of the
"if
is rooted
and held:
§
Indiana
test
of the circumstances"
opinion
By our
to-
Constitution.
Indiana
explicit regula
agency's
his
official violates
explicitly recognize a
formally and
day, we
law, it
of state
tions,
have the force
created,
right
carry
a
substantive
state
is unreason
that his conduct
is evidence
license, provided that the
a
handgun with
(N.D.Fla.1981),
v. Davis
able."
Scherer
Act are
Indiana Firearms
of the
provisions
Appeals
4,
F.Supp.
19. The Court
based,
part, on
large
right
met. This
Scherer
Circuit affirmed.
for the Eleventh
v. State
holding in Matthews
this Court's
(11th Cir.1983),
838.
710 F.2d
v. Graham
(1958),
677,
334,
Ind.
148 N.E.2d
police
chiefs under him could not have
police
the state
superintendent has no dis
reasonably believed
they
what
were doing
issuing
cretion in
handgun licenses if an was lawful. Part of
may
this
have been
applicant
qualifications
meets the
based on Hatcher's own statement that he
Indiana Firearms Act. Under Board of
considered this a test case and that if any
Regents
(1972),
564,
v. Roth
92 one wanted to challenge his policy they
2701,
548,
S.Ct.
33 L.Ed.2d
recognize
we
could take him to court. The unlawfulness
right
this
as a
or property interest
of his actions
apparent
was
light
protected by the Fourteenth Amendment to pre-existing law and he knew or reasonably
the United States Constitution. The next
should have known it.
issue we address is whether
right
Nevertheless,
"clearly
1,
established"
January
right
on
claims the
recognize
today was not clearly estab-
Creighton
Anderson
lished on January
and cites the
635,
following language from Matthews:
Supreme
Court elaborated on the term
"clearly established":
Article
supra,
say
does not
right
alleged
official is
to have
that the people shall have
right
to bear
violated must
"clearly
have been
estab-
pistols,
any
or
specific
other
kind
type
or
lished" in
particularized,
a more
of arms.
relevant,
hence more
sense: The con-
Matthews,
686-87,
tion has
previously
unlawful,
been
held
... but
say
it is to
Firearms Act are
light
that in the
met. Carrying
a con
pre-existing law the
cealed
must
firearm is a privilege subject
to li
unlawfulness
apparent.
be
censing by
However,
the state.
as we stat
Matthews,
Id. at
S.Ct. at
ed in
97 L.Ed.2d at
if one
require
meets the
(citations
omitted)
Act,
ments of the Firearms
At
super
issue
Anderson was
police
whether a federal
law en
intendent of
has no discretion and
forcement
participates
officer who
in a
one,
must
issue the license.
including
No
search that violates the Fourth Amendment
officials,
local
has the
to interfere
may be held personally
money
liable for
with this licensing process. As this Court
damages if a reasonable officer could have
expressly
Matthews,
stated in
in upholding
believed that
comported
search
with the
challenge
Firearms Act
the Fourth Amendment. Anderson was an the Due Process Clause of the Fourteenth
agent of the Federal Bureau of Investiga
Amendment
Art.
of the Indiana
tion who conducted a warrantless search of Constitution:
a home with the reasonable belief that a
This is not an action
appellant
where
robbery
bank
suspect might be found
is complaining
any arbitrary
or ca-
there. The
agent
Court found the
should
pricious
action
the local
permitted
argue,
qualified
Chief of
immuni
Police
Superintendent
or the
State
ty grounds, that he is entitled to
summary
Police in denying him a license to
because,
judgment
light
clearly
*20
carry
pistol;
nor is this an attack on
established
principles governing warrant-
any
regulations
rules or
prepared
or
searches,
could,
less
he
law,
as a matter of
promulgated by
licensing
officer.
reasonably
have
believed that the search of
question
the home
The sole
presented
was lawful.
Id. at
then
is
whether the statute is invalid because it
at
Thus it fitness, qualified immunity mis jury instruction on general standard of fixes the instruction read as character, necessary to stated the law. This reputation follows: require the issuance of a license by provides a review the Circuit Court that as to a discre- You are instructed any arbi-
protect
applicant against
tionary
only, a defendant who
function
action
trary, capricious or
rights
the constitutional
has violated
fraudulent
licensing
by the
nonetheless have a de-
will
officers.
good
faith that his
682-84,
(empha
fense if he believed
reasonable Third, defendants must the individual right. We doing violated that what he was them to prove that it was reasonable for find this to have been therefore they did. You will reach the conclusion mayor an- "clearly when the established" part consider this case unless not policy. nounced his plaintiffs('] you have found you may Thus violated. addition, uphold jury's determi proposition that the defen- start from the police Hatcher and his chiefs nation that was, least, mistaken about dant plead prove in their defense failed to of his conduct. You must legality by virtue of extraordinary circumstances his mistake was the sort decide whether they neither knew nor should have prudent defendant that a reasonable [sic] legal the relevant standard. known of might make. (1982), 457 U.S. Fitzgerald Harlow v. respect, there are two condi- In this satisfy in sought that the defendant must legal he tions 411. Hatcher testified Gary city attorney Anton Gill part counsel to establish this of the de- order prove He must both that at the announcing policy. The evi fense. his before the action the law was not give time he took attorney Gill did dence showed established, he relied clearly and that legal opinion, merely a written but Hatcher legal authority support his upon some opinion that the was stated it was his duty provide handgun legal no not al- An defendant actions. [sic] law, or in violation of settled It lowed to act application forms to its citizens. clearly established constitu- to violate the jury the witnesses' up to the to assess Thus, plaintiffs. if rights of the weight it de tional credibility give it the rights of the constitutional served, you set find that objective standard applying clear, you must ren- plaintiffs were Harlow, not dis supra. We will forth *21 judgment jury. Moreover, plaintiffs. residents from the der for the How- ever, city fails to cite to this the mere fact that the law was in any authority dispute is not sufficient to establish a in support of position its in violation of 8.8(A)(7). must, defense for the defendant. He Ind.R.App.P. addition, prove that he relied on some The issue has been waived.
legal authority to establish that his view plaintiffs|('] rights constitutional was IV. reasonable, although ultimately mistak- en. We now turn to the issues of class damages. certification and previ As proof The burden of as to all of these ously stated, the designated class was on elements is on the defendants. The February 1980, as follows: prove do not have to malice, defendant acted from or that 1) present all gun permits holders of defendant intended to violate their commencing January on 1978 and end- rights. Rather the upon burden is ing February 1980; [and] prove defendant to by preponderance 2) all City citizens of the Gary who evidence that violation of are obtaining gun desirous of permit. plaintiffs'] were occasioned his Record at 66. The first subclass covered good reasonable faith belief that his ac- the handful people permits whose would tions were lawful. expired have January or between 1 and 2, given Inst. No. as pages modified at February 1980. This subclass in- also 485-86 of the record. maintains Gary cluded those citizens who had a cur- put instruction the burden on the de- rent permit February as of prove objective fendants both an 1980. The first subclass comprised subjective component good faith immuni- 1,961 citizens. The second subclass cover- ty. agree. We do not We find this instrue- every ed Gary other citizen "desirous of properly tion set forth objective quali- obtaining gun permit," group practical- immunity fied standard articulated in Har- ly impossible identify. jury award- low, supra, spoke as it in terms of the compensatory ed punitive damages to- defendant's good reasonable faith belief. talling eight eighty hundred thousand dol- We find no error in this instruction. ($880,000.00) lars to the first subclass and Accordingly, for all of the reasons set ($12.00) twelve dollars to the second sub- above, forth we find the defendants herein class. judgment The trial court's on the are entitled to neither an qual- absolute nor jury verdict was April entered on immunity ified damages. by way and later corrected of a written January order Supple entered IIL. mental Record at ef. This written order recapitulated can be following man- alleged We now address the trial court ner: excluding Gary error in residents from the jury. We are satisfied plaintiffs' trial court's As to the claimed violation pages remarks at 971-75 of the pursuant record Indiana tort law to Ind. response city's for Mistrial I, Motion Const. Art. See. and the Indiana parties stipulated all Gary exclude Act, Firearms IC 85-28-4.1-5: Compensatory Damages Subclass Subclass 2 $22,800.00
Hatcher: $1.00 3,800.00 Motley: 1.00 2,000.00 Kowsky: 1.00 City: 11,400.00 1.00 *22 Punitive Damages Subclass Subclass 2 $170,000.00 Hatcher: $1.00 20,000.00 Motley: 1.00 10,000.00 Kowsky: 1.00 Rights Act of 1871 found at U.S.C. plaintiffs' As to the claimed violation of the Fourteenth Amendment 1983: § United States and the Civil Constitution Compensatory Damages Subclass 1 Subclass 2 $20,000.00
Hatcher: $1.00 5,000.00 Motley: 1.00 175,000.00 City: 1.00 Punitive Damages Subclass 1 Subclass 2 $400,000.00 Hatcher: $1.00 40,000.00 Motley: 1.00 city regard, The citizens maintain the and its offi- its officials. In this following passage note the any challenge from Monell v. cials have waived by failing amount of awarded City Dept. New York Social Services object jury verdict the citizens forms trial, relying submitted at instead on ver- Supreme a case in which the by Superintendent dict forms tendered governing Court ruled that local bodies and by the trial court. The Shettle but refused capacities local officials their official can citizens maintain the and its officials directly be sued under 1983 for mone § preserve error also failed to their tary, declaratory, injunctive relief: recognize, Errors. Motion to Correct We conclude, therefore, We that a local however, jury that the allowed two sets of government may not be sued under damages, one for a violation of "Indiana injury solely 1983 for by an inflicted its § a violation of 1988. tort law" and one for Instead, employees agents. or it is when judgment jury The trial court's on this ver- government's policy execution of a or single recovery dict allowed a for a double custom, whether made its lawmakers wrong. This constitutes fundamental error may those whose edicts or acts addition, which cannot waived. fairly represent policy, be said to official damages allowed for the claimed violation injury government inflicts the that the as pursuant tort of "Indiana law Ind. entity responsible I, Art. Indiana Const. See. and the 2037-38, Act, Id. at 98 S.Ct. at va- Firearms IC 85-238-4.1-5" must be cated, comply at 638. The edicts and the chief of not since did mayor's Act, police's with the Indiana Tort Claims as dis- certainly acts the instant case beginning opinion. cussed at the of this represented policy" the "official However, Gary. point we must out city Gary continues to ar mayor policy when the announced his gue compensatory if it liable solely January accompanied he was damages, theory it is liable under a only by Gary Motley, Police Chief but Lake respondeat superior and should not County Jack Prosecutor Crawford compensatory damages have been assessed greater Gary City Douglas Judge an amount than those assessed Grimes as well. *23 men, along These with Hatcher Motley, and transcript no because there was no hear- were there on behalf of the Gary. ing. Whether there hearing not, was a Accordingly, the city Gary was not we find the trial court erred in allowing merely vicariously liable for the actions of this class proceed action to as a lawsuit for Mayor Hatcher and Motley. Police Chief damages. The trial court did not err in upholding the When the city cut off supply of hand- jury's compensatory damage award gun application forms, license it was neces- city merely greater it because was than sary proper and for all Gary citizens of to compensatory damages assessed bring a class action to injunctive obtain the Hatcher and declaratory they sought. relief How- We now address the issue of ever, not all members of the class had whether the trial allowing court erred in questions of law or fact common to them this proceed lawsuit to as a class action for when it came assessing to damages. The compensatory punitive damages pursu subclass, second "all citizens of City ant to 42 U.S.C. 1988. Indiana Trial Rule Gary who are desirous obtaining gun 28(A) sets forth prerequisites of a class permit," was practically incapable of defini- action as follows: tion. jury recognized mayor's One or more members of may a class handgun policy them, affected but decided sue or be representative sued as parties only to award de damages. minimus All on behalf of all only if: members of the first subclass were in dan- (1) the class is so join- numerous that ger of having their expire licenses within der of all impracticable; members is years two January Obviously, 1980.
(2) questions there are those with a license about of law or fact expire class; common to the January, were in danger immediate expiration. hand, (8) On the other those the claims or repre- defenses of the parties sentative typical are acquired who handgun claims license in 1979 class; or defenses of the would not have to reapply until They 1981. handgun had their obviously (4) licenses and representative parties will fair- ly adequately protect were unaffected unavailability interests of the class. forms in Janu- 28(4A). Ind.TrialRule ary of 1980. The members of the first damaged subclass varying degrees, We city's argument first note the in its depending personal on their own cireum- Errors, Motion to Correct filed June stances. damage Some suffered no at all. 1988: The trial court allowing therefore erred in 4. The Court erred it ruling It's [sic] the case to be tried as a class action for February [sic, that 1980] damages. cause of action proper was a class action. exemplified by This error is following For the Court made said ruling without jury benefit of a instruction: hearing or waiver of a hear- ing objection and over of counsel. The determining compen- measure of Judge during argument stated that: no satory damages in this class action of necessary evidence was and that he 1,961 persons known and others whose didn't think there argument unknown, exact number you are in- up about who made the class. If the structed that an assessment of Court had hearing pursuant held a require will you that engage in some 23C, may T.R. the Court have made a estimation. It possible prove is not proper class, determination any. if with absolute certainty mathematical the compensatory damages to which the transcript Record at There is no of a hearing record; on class certification in plaintiffs may upon entitled based accordingly, the argue, this Court the conduct Because defendants. cannot review presented the evidence this, the law require does not that prove with hearing. precision actual that maintains there is wrongful court of death dam- tion district of their or actual amount
measure airplane crash requires arising out of only law action ages. The clear passengers evidence to constituted sufficient killed 885 plaintiffs show making a reasonable to invoke ex give discretion sufficient you basis abuse of You are Ninth approximation. mandamus from traordinary estimate or writ of on the basis reasonable estimate *24 Appeals), reach a of cert. denied sub Court Circuit Douglas presented in this case. v. McDonnell Flanagan nom. of the evidence uncer- there is some 1506, fact that 911, The mere (1976), Corp. measure of proof of the tainty in the regarding questions Factual L.Ed.2d 761. your affect determi- damages should type will not damages injuries for of recovery should nation. class, Plaintiffs' class mem to the as each be common they do not impaired because way be no be is different and must ber's situation precise damages in a and prove their independently assessed. may You consider amount. certain Ind., (1980), v. Lee The citizens cite Clark factors, the relevant among other 646, 572, and 406 N.E.2d Skalban 273 Ind. damages multiplying proven amount of (1982), Ind.App., 443 ia Simmons or maximum minimum either examples where this as two N.E.2d mem- of known by the number amounts upheld dam appeals of and our court class, of the defen- the failure bers of the lawsuits. How age in class action awards constitutional comply with the dants to cases, ever, the in of these unlike either pursuant plaintiffs of questions of fact re case involved stant and the Con- Constitution United States not common garding damages which were Indiana, the fail- of the State stitution Moreover, damage claims to the class. comply with defendants to ure of the testified in the trial who and the Indiana the State of statutes of typical of the claims were not court below at Act 1871 found Rights Civil members. of all class Sections States Code United the defen- to which the extent Skalbania, supra, was a class action was inten- compliance brought by a class of season ticket failure of lawsuit dants' tional. Indianapolis Racers holders Skalbania, Team, owner, Nelson modification given with Hockey its Inst. No. Association, its con Hockey the World (emphasis add of the record pages 519-20 sought The class hockey stituent teams. invited ed). this instruction We find ex compensation for their season ticket speculate as to the amount jury to Indianapolis Racers penditures each after the damages sustained compensatory opera hockey to multi franchise ceased professional instructed them class member (18) forty only thirteen of their tion after members by the number of ply this amount damage compensatory (40) games had been The scheduled home in the class. recovery Although The citizens' reliance theories of played. stand. award cannot Ind. Lock Lloyds London v. numerous, on court held the Skalbania were reh'g, App., 454 N.E.2d certifying did not err the trial court modified City v. Rome N.E.2d and Town complaint as a class action. nine-count N.E.2d for (1983), Ind.App., 450 King damages sought in compensatory Skailbe- damages need not that all proposition could in nature and nia were contractual cer mathematical proven with absolute be As the precisely determined. Skalbo- how it can case was a put it: "We fail misplaced since neither see tainty is nia court damages. class action for II be said that Count contract] [breach compensation the in for more than injury, tort asks in cases of mass As pre the tickets. We have paid amount lend itself to class simply did not stant case in the amount differences viously held that question of dam on the action treatment class treatment recovery will not bar Corp. See, Douglas ages. eg., McDonnell (9th whole, Ct., which, is suitable Cal. viewed as a Dist. C.D. a case v. United States Skalbania, 443 approach." for such an Cir.1975), (improper certifica F.2d 1083 Clark, N.E.2d at 358. supra, there set forth the punitive standard for dam questions likewise were common regarding ages in a requiring action as liability damages showing where this Court held of aggravating circumstances or Occupational Income Tax malicious Act of intent. We follow the Seventh Indiana upheld unconstitutional and Circuit's the tri standard in this 1983 action. ordering court, al court's a refund Endicott occupa in upholding part tion taxes collected from district court's judgment members of notwith plaintiffs' standing Skalbania, class. As in the verdict which the indi reversed the jury's damages punitive vidual award of Clork were readily damages, as contin certainable. ued: Such is not the case here. Viewing the entire record in the light But even if readily were Endicott, most favorable to agree ascertainable, they not, there is *25 with the district court that there was yet problem. another subclasses, Both as simply no evidence of aggravating cir- defined, were overbroad. Because of the cumstances or malicious intent in the ini- citizens' getting success in temporary tial denial process of due from which a restraining order issued February jury punitive could award damages. 1980, only Gary those citizens who were There undisputed testimony that the handgun issued a January 1 from Board legal members consulted their ad- 5, 1978, February were danger of visor, Connell, State's Attorney to deter- having expire their licenses due to the mine the necessary and appropriate pro- actions herein. But defendants cedures for public hearing which even these citizens protected by the plaintiff requested in 1974. While Con- trial temporary court's restraining order of nell advised the proceed Board to in a 5, 1980, February Superintendent as Shet- manner later inadequate deemed by the tle enjoined was "taking any from action to Appellate Court, Illinois there was no terminate of the permits of plain- evidence of a malicious intent underlying tiffs which expired have during penden- faulty Connell's advice. Had Connell cy of this cause." Record at 67. After the persisted the Board in their initial temporary restraining order issued on Feb- posture following receipt the Illinois ruary Super- evidence showed Appellate opinion, Court's their action intendent Shettle issued licenses certainly would have "ag- constituted to all representative members, class gravating circumstances." We have al- regardless police chief's recommen- concluded, ready however, that the Coun- dations for Accordingly, denial. even if ty adopted Board appropriate procedures questions there were common of fact re- plaintiff's for the hearing. second garding damages each class member (emphasis added). Id. at 1217 In the in- suffered, not, which there were the over- case, stant mayor we find the acted in breadth of the class resulted in an exces- disregard reckless rights. the citizens' sive award compensatory damages. may While this ordinarily entitle We turn now puni issue of punitive to an award of damages in damages. tive Hatcher and Motley main Indiana, guided we are prece- federal punitive tain damages should not have dent in this 1983 action. question awarded, given been the circumstances of becomes whether there ag- were sufficient addition, this case. In they challenge how gravating present cireumstances to war- jury was instructed on this issue. The punitive rant a damage award. We find argue objection made to this there were. Unlike the case in
instruction at trial sufficiently spe was not cott, supra, mayor and his chief of preserve cific to appeal. the error on We police persist did posture their initial agree. Accordingly, any error in the in after Acting trial court ordered Chief given struction has been waived. Motley of Police "immediately process any applications Circuit, The Seventh provided by received as Endicott v. Huddleston (7 Cir.1980), any way 1208, statute" and "not in or manner 644 F.2d th applications." said processing of delay the punitive damage to the first sub awarded sixty was sufficient evi- nine hundred 126. There class one thousand Record at city's policy presented that (1,961) dence pursuant one members applica- handgun license addition, city Gary is not to be to distribute vicariously dam them punitive held liable for the recommend tions, systematically but delay in a resulted This Motley. for denial. ages assessed Hatcher delay we have held this processing. While Concerts, Newport Fact Inc. See deprivation constitute did not 2748, L.Ed.2d 616 process without due interest property damages cannot (punitive awarded does, opinion, an law, in our constitute it 1988). pursuant against municipality to § circumstance sufficient aggravating postjudgment are entitled to The citizens punitive here. warrant the rate of twelve interest on this award at (12%), April calculated percent however, apparent, It is also only court's order of the class the date of the trial that the overbreadth compen verdict, jury pursuant in an excessive amount to IC resulted entered on the (Burns 1981). artificially inflated 24-4.6-1-101 satory damages, but there damage award as well. We punitive punitive compensatory fore find V. *26 by the trial court below damages awarded jury in city challenges specific nine The First, for two reasons. must be reversed already addressed We have structions. deprivation of a damages sought for the entirety: of them in their instructions three as right should have been constitutional (immunity), (compensatory numbered class, Second, the as individually. sessed (punitive damages). Be damages), and 8 Nevertheless, defined, was overbroad. remaining fore we address the six instruc keeping in economy, judicial interest of tions, finding liability jury's note the we place occurred which took mind the events by wholly supported both the law and a number years ago and affected over ten awarded, damages The how the evidence. residents, choose to exercise elderly ever, of this were excessive. Our review appropri equitable power to fashion an our required has an examination case thusfar present evidence remedy ate based on the city applicable law at the time the of the ed. took their action. Since officials Accordingly, hold those we now impression, many of the issues case of first handgun license from who were issued liability immunity purely are regarding and
January February were foregoing, prob legal. light having their licenses danger immediate alleged by city in the instructions lems expire the actions of the defendants due to jury, they improper, if in fact to the only members of the They are the herein. their cannot be said to have contributed to unable have been first subclass who would finding liability under 1988 and are §$ handgun li- application to obtain therefore, most, error. harmless Con restraining temporary or- cense before the (1982), Ind., Truck, v. Hull Inc. der Lift brief, the citizens con- In their der issued. N.E.2d awarded, compensa- damages tend the both when tory punitive, are not excessive and 5, given as Instruction number by the one thousand one divides award modified, stated: (1,961) sixty one members of nine hundred Under 42 U.S.C. Section [iJt Therefore, citi- subclass. those the first necessary not to find that the defendants handgun license were issued a zens who 5, 1978, are to deprive the January February specific had intent rights in order to plaintiffs of their civil one and 99/100 awarded one hundred plaintiffs. plain- The find in favor of the ($101.99) damages compensatory dollars entitled to relief if the defen- tiffs are twenty four and 38/100 two hundred in a manner which resulted ($224.38) dants acted punitive damages, their dollars rights. plaintiffs('] in a violation of the compensatory pro rata share of city Record at 489. objects The to the tected the Constitution and laws of mandatory language and lack of other ele the United you find, States. And if so tort, ments comprising namely, proximate you then proceed must to determine the damages. amount of the cause and resultant It is undis compensatory actual or puted that the officials herein cut off damages suffered or sustained supply plaintiffs, proximate as a result of the forms to those citizens who needed to re defendants' conduct. new their in January licenses of 1980. If, however, you should find from a There is regarding proximate no issue preponderance of the evidence in the instruction, cause. Under this jury case that the defendants acted within the could have found a 1983 violation and authority bounds of their you lawful then simply is, awarded damages. no This should return a verdict in favor of the essence, they what assessing did in one defendants; for, previously stated, as if ($1.00) dollar in compensatory punitive the defendants acted within the limits of damages against various defendants and in their lawful authority under the state favor of the second subclass. We discern law, then the deprive defendants did not no error here. any liberty "without due city's objection The to instruction num- process of law." ber is that it was supported by Record at 506. objects 1,961 evidence insofar as not all members mandatory language instruction, of the first subclass damages. suffered correctly points mandatory out in- jury instruction invited the spec- structions are not favored in law. ulate as to the amount of to be However, grounds we see no for reversal awarded. We already have resolved this stated, here. As regard with to the second issue in city's favor and it is therefore subclass, jury found a violation of the *27 previous moot. See discussion of instruc- law, only but awarded damages. nominal IV., tion number 29 in supra. Section See discussion of instruction number su- pro. Instruction city presents number set forth The no reversible error the statutory requirements carry a hand here. gun penalties and the for failing comply 22, given Instruction number with modi- provisions. city's with objection The its fication, stated: that there was support no evidence to the [sic], law, However under Indiana tort instruction, giving of this which created if plaintiffs the have established present issues which were not in the case. preponderance of the evidence that an disagree. We jury was entitled to be officer's engaged subordinate was in a requirements instructed on the function, ministerial would Indiana Firearms Act and be aware of the nevertheless be entitled to recover on the
penalties attendant in thereto order to dis respondeat superior, basis of since the why necessary cern it was for the citizens protected by immunity. officer was not permit they obtain a before only Record at 510. This instruction is not legally carry handgun could outside their confusing, but also erroneous. places homes and of business. protected statement: "the officer was not Instruction number 18 reads as fol by immunity" legal is a bare conclusion lows: easily jury which could have confused the find, you If preponder- should from a regard with to "Indiana tort law." Insofar jury's evidence, as we have vacated the award of
ance of the
that the
defendants
damages
plaintiffs'
under the
beyond
"Indiana tort
acted
the
of their
bounds
lawful
however,
theory,
law"
authority
law,
the issue is moot.
at
the time
Regarding
jury's
damage
the
award under
place alleged,
you may
then
further
did,
find that
possible
defendants
"without
it is
this instruction
law,"
process
deprive
plain-
due
jury's
immunity analysis.
tainted the
pro-
tiffs of
secured to them
Nevertheless,
question
immunity
for
mainly question
policy
1983 is
claimed the school district's
violated
purposes of §
reading
on this
which turns
Court's
their First and Fourteenth Amendment
law
Matthews,
already
have
supra. Since we
in
respects.
a number of
The Gar
city's posi-
Court enumerated the issues the
land
this issue
resolved
tion,
prevailed
teachers
on and noted the issues
find no reversible error.
they
Citing Hensley
lost.
v. Eckerhart
jury
allowed the
Instruction number 28
representa-
if it
to infer that
found common
tions were made to individual members
Court set forth
Gorland
proper
setting
a fee
class,
standard
award
plaintiffs'
they
then
would have
only
plaintiff
where the
has achieved
limit
made to each
member. The
been
class
ed success:
argues this instruction was taken from an-
fraud,
involving
class action lawsuit
other
permissible
no fee award is
until
something
alleged
here. We see it as
"statutory
plaintiff has crossed
informing
jury
all class members would
prevailing party sta-
threshold" of
substantially
have been told
the same
typical
tus....
formulation is that
"[a]
things by
they
officials had
tried to
'plaintiffs may
"prevailing
be considered
procure
handgun li
for a
parties"
attorney's
purposes
fees
if
event,
any
January,
cense in
In
since
significant
they
any
succeed on
issue
already resolved the issue of class
we have
litigation which achieves
some of the
city's
fa-
certification and
parties sought
bringing
benefit
vor, this is a moot
issue.
suit.'"
attorney's
We now turn to the issue of
Garland,
789, 109
489 U.S. at
fees.
1491,
As
42 U.S.C. §
pertinent part:
goals
vides
relation to the other
of the lawsuit
is a factor critical to the determination of
proceeding
action or
to enforce a
fee,
eligi-
the size of a reasonable
not to
1981, 1982, 1983,
provision of sections
bility for a fee award at all.
title,
1985, and 1986 of this
title IX of
92-818,
Public Law
or title VI
the Civil
Hensley
decision in
is consistent
Our
*28
court,
1964,
Rights Act of
in its dis-
congressional
regard.
with
intent in this
cretion,
party,
may
prevailing
allow the
Congress clearly contemplated that inter
States, a reason-
other
than the United
im fee awards would be available "where
attorney's
part
fee as
of the costs.
able
prevailed
party
important
has
on an
issue,
purposes
awarding
fees
The
litigation,
in
matter
the course of
even
1988,
under
is whether
the citizens can
ultimately
prevail
§
when he
does not
on
prevailing parties in en-
be considered the
94-1011,
S.Rep.
p.
all issues."
No.
5
forcing their civil
under
1988.
§
(1976);
94-1558,
H.R.Rep.
p.
see also
No.
U.S.Cope
Apmum.Nzws
(1976),
v.
In
8
Cone. &
In Texas State Teachers Garland
1976,
5908,
discussing
pp.
5912.
(1989),
782, 109
dep.
Dist.
489 U.S.
School
1486,
866,
availability
pendente
the United
fees
under
S.Ct.
lite
1988, we have indicated that
such
Supreme
addressed the stan
§
States
determining prevailing party status
proper
party
dard of
awards are
where a
"has
his entitlement
to some relief
brought by
of a
established
in the context
lawsuit
oth
claims,
Texas State Teacher's Association and
on the merits of his
either
Independent
ers
the Garland
School
appeal."
trial court or on
Hanrahan
officials,
754, 757,
Hampton,
100
and various
school
chal
District
(1980).
policy
pro
district's
ally indistinguishable truly and are not vindicating ment the First Amendment fractionable. rights public of employees in the work- Record at 4895. We review the trial place. success materially Their has al- court's decision to award attorney's fees tered the school policy limiting district's and the amount thereof under an abuse of the of teachers to communicate Kahn, supra. dard. the We turn first to concerning employee or-
with each other ganizations and union activities. Peti- fee. The trial reasonableness the base "private court, the citing Georgia Highway tioners have thus served Johnson v. attorney general" Congress role which (5th Cir.1974), Express, 488 F.2d Inc. enacting in promote meant to the Civil finding, in its fifth took into account the Attorney's Fees Awards Act of Rights following factors: the time and labor re prevailed significant They 1976. on a novelty quired; difficulty the and litigation in the and have obtained issue questions; requisite perform skill they sought the relief and are some of legal properly; preclusion service "prevailing parties" within the thus attorney employment due to the meaning re- 1988. We therefore case; fee; acceptance customary Ap- judgment verse the of the Court of contingent; the fee is fixed or whether peals remand this case for a determi- imposed by the and time limitations client or attorney's fee con- nation of a reasonable circumstances; the amount of time in principles with the established sistent obtained; experi volved and the results Hensley our in v. Eckerhart. decision ence, reputation ability and of the attor case; neys; "undesirability" Garland, 109 S.Ct. at L.Ed.2d at 878. length professional rela nature client; tionship with the and awards in The same is true here. The trial court Johnson, cases. similar We note su deciding its discretion in did not abuse enumerating pra, by Congress was cited as attorney's fee. In ad- award a reasonable appropriate determining in standards dition, merely the citizens were because the amount of fees to be awarded under appeal the entire preserve unable to on this S.Rep. No. 94th U.S.C. § compensatory punitive Cong., reprinted 2nd Sess. in at trial does not affect their awarded below Cope Apmin.Nzws 5908, 5918; Cone. & ac purposes prevailing party status for H.R.Rep. Cong., cord No. 94th 2nd especially true since we 1988. This (1976). Sess. 8 We have reviewed the trial explicitly recognize liberty proper- now findings in court's relation to the factors handgun ty carrying in with a interest city's enumerated as well as the nu above license, requirements of the provided all merous citations to the record for evidence Act are met. We also Indiana Firearms significant duplications of effort. created, hold this state substantive clearly Mayor at the time established We discern no abuse of discretion find- policy, Hatcher announced his and there- ing expended the number of hours at trial fore, its officials are not im- reasonably necessary per- order to damages. mune from As was the case legal compen- form the services for which Garland, supra, the citizens' success here- However, sought. trial sation was materially city Gary's has altered clearly court abused its discretion award- pro- policy regard with to the issuance ing attorney's (80) eighty fees for hours cessing spent "preparation sixty of notices" and they are entitled to a forms. We hold (60) "photostating hours of documents." attorney's fees. reasonable award of Clearly, such services cannot be billed at a city challenges lawyer's hourly the amount of Nor can the citizens' rate. duplica due to fees awarded as excessive attorney's counsel reasonable be awarded *30 along program appearing tion of the citizens' counsel fees for on a local radio effort reasonably necessary with the time not discussing part the case. This of the pursuit the of this case. The also obviously award cannot stand. We see no applying finding a mul in the trial court challenges the trial court's abuse of discretion (2) hourly charged, hundred tiplier of two to the fees awarded. As the rates one dol- ($100.00) stated, "preparation" review the trial court's decision lars one ($150.00) attorney's fifty and the amount hundred dollars for "trial to award fees thereof under an abuse of discretion stan services," reasonable. The next issue is whether the trial The statute U.S.C. requires [42 1988] court abused its discretion in applying a fee," tH "reasonable may there be cir-
multiplier (2) of two to the "lodestar" cumstances in which the basic standard amount of attorney's fees. The trial reasonable rates multiplied by reason- court's findings in this regard are ably as fol expended hours results in a fee that lows: is either unreasonably low or unreason- ably high. When, however, 20. That plaintiffs' applicant counsel are for a fee has carried his burden show- entitled to not only fully compensatory ing that the but, claimed fee rate and upon based number exceptional success hours are reasonable, the resulting prod- takes into account those factors uct is presumed to be the not already reasonable fee considered in the first step contemplated by 1988. figure "lodestar" as set above, forth an 897, Id. at enhanced award is 1548, S.Ct. at 79 L.Ed.2d at warranted an ad-
justment thereto and in awarding same the Court considered, has alia, inter The Blum Court discussed an upward relationship between the amount of the adjustment in attorney's fee awards for fee awarded and the results obtained. "exceptional" success with the following 21. That in view of the above and language: performance plaintiffs' coun- Neither complexity nor novelty of the sel contributed to producing law of sig- issues, therefore, is an appropriate factor precedential nificant value in the state determining whether to increase the Indiana, the undesirability basic fee award. case, the limited prelitigation likelihood that The "quality of representation," plaintiffs prevail would on their claim for however, generally is reflected in the compensatory punitive damages, reasonable hourly It, rate. therefore, aggravating conduct of the defendants may justify an upward adjustment only (see para. "11.", supra) the results ob- in the rare case where the fee applicant tained, the delay payment between the specific offers evidence to show that the time legal services were rendered and quality of service rendered superior the time the fees actually will be recov- to that one reasonably should expect in ered, the preclusion of employment by light of the hourly rates charged and the attorney due to acceptance that the success was "exceptional." case, and the time limitations imposed by 898-99, Id. at 1549, S.Ct. at 79 L.Ed.2d the client and the cireumstances of the at 902. The trial court plaintiff's found case, counsel for the are enti- success "exceptional," to be and considered tled multiplier to a of 2.0. the significant precedential value of this Record at 4398. case in awarding an enhanced fee. Al though precedent burden of set proving today signifi that an upward cant adjustment because this is a case necessary to impres first determina sion, we tion of a reasonable fee is on consider appli fee to be in same category cant. as "complexity Blum (1984), v. novelty Stenson [and] U.S. the issues" and S.Ct. therefore an inappropriate 891, 901. consideration in Blum, awarding Supreme enhanced fee. Court reversed the Second Circuit Ap Court of We note the stated, trial court in enhance- peals' fifty percent (50%) enhancement ing awarded, fees it would take into attorney's fees. Although it noted that in account those factors not already con- Hensley Eckerhart sidered in the 461 step first figure "lodestar" as set forth above. In its next set of recognized "in some cases of findings, however, it did exactly that, con- exceptional success an enhanced sidering the undesirability award case, may justified," *31 the Blum Court went on preclusion employment of and the time say: limitations imposed in awarding an en-
718 by the raised novel issues" "new and were al- three factors These fee.
hanced fee reasonable arriving at a case, of the defen in ready used and the stubbornness (1984)- 1431 dants, F.Supp. Johnson, and should not supra, on based enhancing the in in the num already be reflected considered have been should hourly expended and the Moreover, court should of hours the trial ber award. pay- "delay in any considered have not again to in used rate, cannot and fee, since awarding an enhanced in ment" award. the fee crease interest postjudgment expressly ordsred it 734, 107 S.Ct. at at Pennsylvania, percent twelve rate of to accrue J., (O'Connor, con at 603 24-4.6-1-101 IC (12%) with in accordance part). in curring 1981). (Buras reasons, we find foregoing For all of the "limited relied on court also The trial a multi- erroneously applied the trial court plaintiffs would that likelihood prelitigation it awarded. lodestar fee plier compensatory and claim for prevail on their the "results as damages" as well punitive city argues Finally, we note fee. awarding an enhanced in obtained" damages awarded no were since were the citizens stated, merely because As 1988, the citi Kowsky under Police Chief § entire appeal the on this preserve unable to him party" as to "prevailing are not zens punitive compensatory and liable for not be therefore he should not affect their does trial below awarded at Kowsky agree. attorney's fees. We any purposes of for prevailing party status January, in 1980. police not chief of the "re However, affect it does § improper he showed Although the evidence an en purposes for obtained" sults certain ly recommended (We parenthetical note fee award. hanced denial, issued these Shettle applications for not consid expressly did ly the Blum Court negative recom Kowsky's licenses over pre being the the risk of er whether in re part had no Kowsky mendations. may ever case in a vailing party in Jan applications Blum, fusing to distribute the adjustment. fee upward an justify evidence was some uary, 1550 n. 1980. There 104 S.Ct. at n. U.S. at 901 applications Compare n. 17. a number presented 79 L.Ed.2d at Valley Citi returned, v. Delaware Pennsylvania but never completed in 1982. police to the state Air forwarded Clean zens' Council stated, However, the citizens previously as an any of these reversed the Court plurality no evidence presented where attorney's fees based enhancement those members belonged to applications compen Act to 304(d) Air of the Clean jury ulti whom the plaintiffs' class to assuming the risk of attorney's for an sate damages. mately awarded O'Connor, nonpayment. Justice loss and of award of argues that if an also held judgment, in concurring part the citizens obtain- granted based on fees is foreclose consid intend to Congress did not Super- sought, then injunctive relief ing the setting rea fees contingency eration solely respon- Shettle should be intendent fee-shifting statutes. fees under sonable the con- awarded. On for the fees sible intend for Congress did held The dissenters completely correctly and trary, jury cir appropriate adjustment upward an Superintendent Shettle exonerated contingen on a cases taken cumstances money no and awarded any wrongdoing, basis.) cy is not liable him. He damages against erroneously con- court also The trial attorney's to be fees for the manner of the de- conduct aggravating sidered awarded. As awarding enhanced fee. fendants opinion concurring granted, put it in her Transfer O'Connor Justice Gary City supra: Appeals designated Pennsylvania, opinion in Court (1988), Ind.App., 519 N.E.2d by the District Kellogg used The considerations remanded vacated, this cause is justify the enhancement-the *32 the trial court for further proceedings con-
sistent with opinion.
SHEPARD, C.J., DeBRULER and
GIVAN, JJ., concur. DICKSON, J., concurs as to II, sections
III, and V of the majority opinion, but
dissents as I, IV, sections VI, with- separate out opinion.
FIRST NATIONAL BANK OF
INDIANA, Appellant
(Defendant Below), James Byron, R. James H. Milstone, GABONAY, David Greenwell, James Thorne, Grodnik Ransel, & Elkhart, Young, Steve Russell, Daniel Thomas appellant. Marlett, Jent, James Robinson, James Groth, William R. Fillenwarth Dennerline Whitehead, Donald Owens, Jimmie Baird, Groth & Indianapolis, appellees. Gary Gilmore, Roark, Scott Michael Russell, Estes, Bobby Whitt, James Ste SHEPARD, Chief Justice. Jent, ven Russell, Mike Dewey Stinson, When an employer's business is suspend- Webster, (Plain and Steven Appellees ed creditors, employees who are owed Below). tiffs wages have a preferred limited pursu- debt No. 20S04-9011-CV-724. ant to Ind.Code (West 22-2-10-1 1981). The issue in this case is whether Supreme Court of Indiana. pre- ferred debt priority takes over a mortgage Nov. on real estate and security interest accounts receivable and other personal
property. We hold that it does. Plaintiffs were employees of Gratzol & Nicodemus Roofing and Sheet Co., Metal (Gratzol). Inc. First National (Bank) Bank held a mortgage on Gratzol's real estate and a security interest in the company's receivable, accounts personal property, and after-acquired assets. On October 1987, the Bank seized all assets of Gratzol under the terms of the mortgage and se- curity agreements, and Gratzol ceased to operate. On December eighteen of Grat employees zol's filed a complaint demand- ing payment from the Bank for "wages and fringe benefit contributions owed them up per to $600 employee, earned in the (8) three months preceding defendant