*1 eyewitness lant here was identified an III person filling in the in the of a customer tri Appellant also claims that the accomplice. There was station and his by giv reversible error court committed al probative value as evidence of substantial penalty on each ing him the maximum every charged crimes. element upheld appeal on A sentence will be count. error. We find no that manifestly unreasonable unless it is so error, Finding no we affirm the trial find the sen person could no reasonable court. appropriate to the offense and to tence 2; Ind.R.App.Rev.Sen. Williams
offender. 434, State, (1981) C.J., DeBRULER, GIVAN, 275 Ind. HUNT- v. PRENTICE, JJ., found the The trial court concur. 328. ER and not Appellant would aggravating factors: rehabilitation, lesser susceptible to depreciate the seriousness
sentence would Appellant’s past Appellant’s crimes and justify maxi history attitude
criminal Here, Appellant confront
mum sentences. to rob him of the victim with an intent money taking to the Bank. sack he was POOLE, Jay Appellant L. go refused to let the victim When (Plaintiff Below), sack, Appel Appellant killed him. shot and Appellant accomplice testified lant’s because the victim stated he shot the victim CLASE, Appellee Stephen D. refusing to hand over was stubborn (Defendant Below), The facts of the crimes as committed loot. aggravating and the circumstances here regard to the found the trial court Land, Cross-Appellant, Vickie Appel demonstrate that perpetrator do not (Defendant Below). manifestly were unreason lant’s sentences No. 485S156. able. Indiana. Supreme Court of IV April Appellant Finally, claims 6, 1985. Rehearing May Denied ver was not sufficient to sustain
evidence charges. Our guilty on all three dicts sufficiency questions
standard review
is: evidence,
“Upon for sufficient a review will look to the evidence
this Court rea- to the State and all
most favorable drawn there- inferences to be
sonable If of each element
from. the existence there- charged may crime be found doubt, from, beyond a reasonable disturbed, will not be
verdict [citation review, not In such a we will
omitted].
weigh conflicting nor will we evidence credibility of the witnesses.”
judge 404, 407, State, (1980) 272 Ind.
Loyd v.
1260, 1264,
449 U.S.
cert. denied
Appel-
The facts age show that re- ceived a traffic citation speeding for and appear 18, 1978, May to on in the town Edgewood, Indiana, court of where Clase Judge served as both pursuant and Clerk to challenge statute. We note that no authority made to Clase’s to so act as both Judge and Clerk. Poole appear did not before Clase on assigned date because he misplaced his Consequently, ticket. May Clase issued a warrant for the arrest of Poole. When Poole later found paid the traffic citation and July his fine on 6, 1978, Clase stated that the warrant would be recalled and that the matter was However, closed. the warrant was not re- arrested, called transported and Poole was to the Madison County Jail and detained in general holding July cell on incarcerated, While Poole was attacked Sutherlin, Michael K. Indianapolis, for stripped inmates who and assaulted him appellant. attempted and to sodomize him. Aikman, Jr., E. Wray, Richard Donn H. complaint Poole filed a damages for Stewart Irwin Meyer, GilliomFuller & Indi- against individually Clase both and in his anapolis, appellee cross-appellant. for and capacity Judge official and Clerk of the Stephen Schrumpf, E. City-County Legal Edgewood against Town Court and Land Div., Indianapolis, for amicus curiae. individually capaci- both her official ty as an assistant to said Town Court PIVARNIK, Justice. alleged complaint Clerk. Poole in said This petition cause comes to us on a negligently Clase and Land failed to recall transfer from the Second District Court of that, proxi- warrant and as a direct and Appeals by Defendant-Appellee Stephen D. negligence, mate result of such he was Clase and Defendant-Cross-Appellant Vick-. arrested, wrongfully detained and at- Plaintiff-Appellant Jay ie Land. L. Poole response complaint, tacked. In to Poole’s appealed from a dismissal of his claim Clase and Land filed a motion to dismiss against Defendant-Appellee alleging Clase 12(B)(6) claiming under Ind.R.Tr.P. improperly court decided “new” Poóle had failed to with the notice questions involving of law Indiana’s Tort Act, requirements of the Tort Claims Ind. §§ Act, Claims Ind.Code 34-4-16.5-1—34- § [political Code 34-4-16.5-7 subdivisions (Burns 4-16.5-19 Supp.1984), and the Doc- provision], they protect- and that both were Immunity. trine of Judicial Defendant- Immunity the Doctrines of Judicial Cross-Appellant cross-appealed Land from Quasi-Judicial Immunity. Poole now granting the trial court order Poole’s mo- raises the two issues: tion to reinstating correct errors and 1. whether Poole’s claims are barred against Poole’s claim Land. The Court of Act; provision the notice of the Tort Claims Appeals reversed the trial court in its dis- against missal of Poole’s action Clase and Appeals properly affirmed the trial 2. whether the Court of court its reinstatement interpreted of Poole’s claim the Doctrine of Land. Poole v. Judicial Immu- Clase, (1983) Ind.App., nity regard reh. to Clase and the Doctrine of Quasi-Judicial Immunity regard denied. to Land. dispose I beyond Since resolution Issue will sued in state court cause, Issue will not consider II. we boundaries the state Indiana.” give Edgewood Poole did not Town pursuant any notice Ind.Code 34-4- provides 34-4-16.5-7 that a Moreover, 16.5-7. Poole not name the did claim subdivision is *3 only employ- as a defendant town but sued gov- barred notice is the unless filed with directly. ees Clase and Land It is Poole’s erning body political that of subdivision holding contention and the of the Court of within after the Ind. days 180 loss occurs. pursuant Appeals that to the above cited § 34-4-16.5-5, “Immunity Code entitled of sections, political code notice to a subdivi- provides Employees,” Public follows days required 180 sion within is not when added): (emphasis suing employees political of the subdivision
“(a) respect A judgment only political rendered with and when the subdivision is by governmen- party to or a settlement made a not named as a We defendant. dis- entity by agree tal an action the claimant interpretation bars because this does not against employee gave comport Legisla- an whose conduct with the of the intention resulting judg- in rise to the claim that ture. ment or settlement. (1981) Ind., Bolerjack, In Burks (b) Subject the of IC 34-4- this Court had occasion to in- 16.5-4, 34-4-16.5-13, 34-4-16.5-14, IC IC (a) terpret Code sub-section of Ind. 34-4- 34-4-16.5-15, and governmental IC the jail guard Willie Burks 16.5-5. was a who entity pay any com- judgment, shall prosecuted had been and found innocent of
promise, or settlement a or claim aiding conspiracy allegedly jail- of for in a employee suit an the against act He break. thereafter sued Sheriff Boler- causing or omission the loss is within County jack Joseph and St. for malicious scope employment, regardless the his prosecution imprisonment. of and false The employee whether cannot the can or Burks had court determined that not personally be held liable the loss County given pursuant for the 34- governor, in and when the the case of a against action 4-16.5-7 dismissed the against employee, claim or suit a state or County. This the Court found transfer governing body political the of the subdi- from the Court of that the effect vision, in or the case of a claim suit § 34-4-16.5-5(a) was that if a against employee political an of a subdi- government employee’s gives conduct rise vision, judg- paying determines that the in against employing to a claim tort the ment, compromise, or is in settlement the entity, any judgment governmental then governmental entity. best interest respect governmental rendered to the (c) governmental entity pro- The shall entity or settlement it bars an ac- pay vide counsel all costs and against employee. specifically the We tion for incurred or on an the of Burks’ found that dismissal suit fees behalf of employee or suit in claim Joseph against County St. was a final and defense of occurring a loss because acts or appealable judgment nothing left for for scope the his em- omissions within parties between the resolution Burks regardless ployment, whether the em- therefore could not maintain his action ployee personally cannot be can or held against Bolerjack. found We further that liable loss. the in precise presented the issue the instant for (d) Nothing chapter contained in the appropriate notice to cause—whether governmental entity shall as a required be construed waiver is when suit against brought governmental eleventh to the is the em- amendment Constitution States, ployee of the United as consent the not us in before Burks. —was the employees Although state of Indiana or its to be Court of made this court, finding, Judge expressed sued in consent any federal or as same Garrard the opinion liability employer. as dicta in his for the ment in the There also majority: is merit the contention of Land and Clase
“Finally, plain the we note that while the absence of a reservation of language 5(a) applied of section could be rights employer, grounds in the there are governmental to bar a claim by defending, for the contention that the employee individually judgment where a employer agrees pay as- had been entered favor of the suggest sessed. Land and Clase further grounds of failure to subdivision on light government of the realities of requirements, with the notice employment, employer will almost al- apparent application section has no to ways paying find its best interest lies with employee circumstances where the judgment. pre- It could as well be sued no action commenced but was Legislature contemp- sumed that the governmental entity. lating parties that all would be be- *4 conse- That would result an absurd fore the trial court these when determina- A quence. claimant who had failed to tions are made and did not surmise that give properly notice could sue the em- § interpreted Ind.Code 34-4-16.5 would be ployee individually, only but in the event escape by suing only to create an the em- governmen- joined he had not sued or the Moreover, ployee directly. we believe the Legisla- entity tal as a defendant. The Legislature intention the was that the presumed ture is not to intend such con- employer entity might logically elect to “es- sequences.” cape” paying the where the act (1980) Ind.App., 411 Bolerjack, Burks v. employee scope was so far out of the (Staton, J., dissenting). 151 employment of his or her as to amount to statutory Considering the entire scheme interpret fraud or criminal conduct. To the § 34-4-16.5, of Ind.Code we do not con- Legislature intention of the otherwise Legislature clude that the intended the “ab- provision complete a would have this allow By by Judge surd” result noted Garrard. purposes circumvention of all of the other governmental entity is providing that the the Tort Claims Act since em- required to defend the sued individual the subdivision would have virtual- places precisely the ployee, the statute ly responsibilities only the same the upon entity same the which it burden being is employee sued but without accord- if it sued. Even if the would have were holding of notice. This is ed the benefits employee properly lia- sued cannot be held holding Geyer our not inconsistent with individual, employing entity is ble as an the (1977) Logansport, 267 Ind. City v. Thus, required to defend him. whether a Geyer 333. was decided under plaintiff entity, only the elects to sue prior “City or Notice” stat- Tort Claims entity employee, the or both the and the § ute, 18-2-2-1 48- [Ind.Code employee, there no difference to the em- is (Burns [repealed Supp.1973)] effec- entity provide it still must ploying since 19, 1974], did not re- February tive legisla- interpretation defense. The gov- quire for suit individual intent the Court of tive employers it did not ernmental since obli- appears glorify to form over sub- case entity defend em- gate employer to its and creates a distinction without stance statute, governmental ployees. In that assuming, arguendo, difference. Even discretionary power provide to entity had a governmental entities have some dis- indemnity employees. a defense or Un- they pay will on a cretion as to whether city, der that statute a such as the town scope such discretion judgment, here, or not to was free to decide whether practicalities. limited Even very is provide a defense and/or indemnification. employee, an individual a suit to, city city If the decided not employing implead the employee can completely the hook” and could not be “off theory entity respondeat superior under through the judg- brought back into the action exists for ultimate so an avenue still employee. We now hold that Poole's action against Clase should dismissed for fail- HURST, Individually Edward and as Next requirements
ure the notice with Hurst, Friend of Michael Edward Hurst Likewise, of Ind.Code 34-4-16.5-5. we Kathryn Butler, Co-Special as Ad- against Land hold that Poole’s claim also ministrators of the Estate of Linda should be dismissed. Hurst, Hurst, Deceased and Edward Hurst, Jr., Deceased, Father Edward opinion The of the Court of is Hurst, Deceased, Appel- and Thomas vacated and this cause remanded to the lants, modify instructions its court with opinion. judgment consistent with this The BOARD OF COMMISSIONERS OF GIVAN, C.J., HUNTER, and PREN- The COUNTY OF PULASKI and
TICE, JJ., concur. County, Indiana, Appellees. Pulaski DeBRULER, J., separate dissents with No. 485S157. opinion. Supreme Court of Indiana.
DeBRULER, Justice, dissenting. April opinion line concur down the Ap- of the Second District of the Court
peals
appears
which
at
The one hundred and notice
requirement applies I.C. 34-4-16.5-7 express against polit-
by its terms to claims public
ical subdivisions and not individual
employees. employees protect- Public are discretionary payment 34-4-16.5-5. claims I.C. Poole’s are individuals and not a subdi-
vision. Therefore Poole’s claims are not the failure
barred with the provision in the Tort Claims Act. issue, agree
On the second I the Court with judge that when a serves the court,
office clerk of and takes those
simple steps and routine ministerial neces- warrant, perform-
sary to recall a he is not act,
ing judicial closely or a related act
requiring the exercise of or dis- agree
cretion. And I further with rea-
soning Court of third
issue, judicial immunity should not be
extended to assistants of a clerk court engaged simple, routine ministerial I permit
tasks. would therefore claims However, go forward in the trial court. point legal also to hasten out that this does not reflect a breach
view a belief that duty consequent injury exists in the gave
circumstances rise to the insti- of this
tution action.