right for civil remedy

1415

CONSTITUTIONAL LAW—RIGHT TO REMEDY—ARTICLE 1, SECTION 9 OF THE INDIANA

CONSTITUTION DOES NOT GIVE RISE TO A CIVIL DAMAGE REMEDY FOR A VIOLATION OF FREE SPEECH

RIGHTS. Cantrell v. Morris, 849 N.E.2d 488 (Ind. 2006).

Elizabeth K. Merrill*

I. INTRODUCTION

In Cantrell v. Morris,1 the Supreme Court of Indiana narrowly held that a private cause of action for damages based on a violation of the constitutional right to freedom of expression, which was manifested in the termination of a public employee as a result of his political activities, did not expressly or impliedly arise under the relevant provision of the Indiana Constitution. After providing an overview of the facts of the case, this Comment will explore the history of the interpretation and applicability of Indiana constitutional guarantees, as well as the availability of existing remedies for violations of these fundamental rights. This Comment will then offer a brief account of the state supreme court’s analysis of this matter, followed by a discussion on the soundness of this analysis and implications of the decision. Suggesting that the court failed to adequately consider the potential sources of an implied right of action, and that such hasty reasoning will have ominous consequences for the development of state constitutional law and for the livelihood of state constitutional protections, this Comment will conclude that the Indiana Supreme Court misguidedly rejected a crucial invitation to begin to define the scope of this state’s bill of rights.

* J.D. Candidate, Rutgers University School of Law-Camden, May 2008; B.S.

Business Administration, Monmouth University, 2004. 1. 849 N.E.2d 488 (Ind. 2006).

1416 RUTGERS LAW JOURNAL [Vol. 38:1415

II. STATEMENT OF THE CASE

Appointed by Judge Eduardo Fontanez, John Cantrell began his work as a public defender in the Criminal Division of the East Chicago City Court in 2002.2 A year later, with the end of Judge Fontanez’s term approaching and without his seeking reelection, Cantrell became openly supportive of another candidate for the position.3 However, this candidate’s rival, Sonya Morris, was victorious in the election and replaced the former judge in January 2004.4 By the end of that month, the newly elected judge informed Cantrell that his employment was being terminated.5

Alleging that his firing was based on his support for Morris’s primary challenger and, as such, a violation of his right to freedom of speech, Cantrell filed a complaint in the United States District Court for the Northern District of Indiana against Morris and the City of East Chicago.6 He sought compensatory and punitive damages as well as equitable relief under both federal law, the First Amendment and 42 U.S.C. § 1983,7 and under state

2. Id. at 490. Although hired as a public defender, Cantrell quickly began serving as a

judge pro tempore, which involved hearing trials, ruling on motions and evidentiary matters, and even entering judgments. Cantrell v. Morris, No. 2:04CV364, 2006 WL 3743109, at *2 (N.D. Ind. Dec. 15, 2006). Throughout his employment, however, Cantrell’s title and salary remained listed as that of public defender. Id.

3. Cantrell, 849 N.E.2d at 490. Cantrell and his father were both active in local politics, and in this election specifically, they supported Corinth Bishop II in the Democratic primary election. Cantrell, 2006 WL 3743109, at *2.

4. Cantrell, 849 N.E.2d at 490. Morris won the primary, defeating Bishop, and had no opponent in the final election. Cantrell, 2006 WL 3743109, at *2. She testified that she was not aware of Cantrell’s participation in her challenger’s campaign, although she admitted to knowing of such support by his father, and, furthermore, that she was not even aware of John Cantrell at all until after her election to office. Id.

5. Cantrell, 849 N.E.2d at 490. Explaining her replacement of Cantrell with a supporter of her campaign, Morris stated that she needed someone that she knew and trusted in that position. Cantrell, 2006 WL 3743109, at *3.

6. Cantrell, 2006 WL 3743109, at *3. The original complaint was filed on August 31, 2004 and only named Morris; an amended complaint was filed on May 5, 2006 and named Morris, in both her individual and official capacities, and the City. Id.

7. Section 1983 expressly provides a civil remedy for constitutional violations, stating, in pertinent part:

Every person who . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983 (2000).

2007] RIGHT TO REMEDY: CANTRELL v. MORRIS 1417

law, article I, section 9 of the Indiana Constitution.8 In response, Morris filed a motion for summary judgment.9 With regard to the state constitutional claim, she asserted that a private right of action for damages does not exist for an alleged violation of a state constitutional right.10 Unable to settle this issue on its own, the district court certified the question of whether there is an implied private right of action under this provision of the Indiana Constitution to the Indiana Supreme Court.11

Upon review, the supreme court opted to rephrase the question posed by the district court, which originally asked, “Does a private right of action for damages exist under Article I, Section 9 of the Indiana Constitution, and if so, what are the elements of the action the plaintiff must prove?”12 The court instead narrowed the issue to address the following question specifically:

Does an employee of a state or local government agency whose discharge is alleged to have violated rights of free speech guaranteed by Article I, Section 9 of the Indiana Constitution assert a claim for money damages against the unit of government or any individual responsible for the firing, and, if so, what is the source of that claim and what are its elements?13

After analysis and interpretation of the state’s constitutional law, as discussed below,14 the Indiana Supreme Court provided the federal district court with some, albeit minimal, guidance regarding this issue of state law, holding that “a terminated employee has no private right of action for damages that arises under [article I, section 9].”15

8. Cantrell, 849 N.E.2d at 490-91. Article I, section 9 provides: “No law shall be

passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.” IND. CONST. art. I, § 9.

9. Cantrell, 849 N.E.2d at 491. 10. Id. 11. Id. Although the Northern and Southern District Courts of Indiana had both

previously ruled on this issue, the state legislature and the state courts had yet to address the question of the existence of an implied right of action. Cantrell v. Morris, No. 2:04CV364, 2005 WL 1159416, at *6-8 (N.D. Ind. May 17, 2005).

12. Cantrell, 849 N.E.2d at 491. 13. Id. 14. See infra Part IV. 15. Cantrell, 849 N.E.2d at 492. Following this decision of the Indiana Supreme Court,

the district court subsequently determined that the defendant’s motion to dismiss the state constitutional claim should be granted. Cantrell v. Morris, No. 2:04CV364, 2006 WL 3743109, at *11 (N.D. Ind. Dec. 15, 2006). By this decision, the court made clear that the


III. HISTORY OF INDIANA CONSTITUTIONAL LAW

A. Interpreting the Indiana Constitution and implying remedies

Next to the extensively developed field of federal constitutional law, there is relatively little state legislative or judicial authority interpreting Indiana constitutional guarantees and remedies.16 Amidst this historical void, however, there is some guidance as to the interpretational method adopted by the state supreme court—“an historical/originalist approach.”17

Still, the question of the existence of an implied cause of action for damages after a constitutional violation has been established has never been answered by this court, leaving the state’s federal district courts, in addition to the state appellate court, to essentially guess how the high court would rule.18 Tellingly, the Indiana Court of Appeals seems to have recognized such a right on separate occasions, only to have the supreme court explain those decisions as turning on entirely distinct issues, none of which implicate a constitutionally implied remedy.19 With similar confusion, the state’s

asserted provision of the state constitution would not provide a remedy in such a case. Id. at *10. Furthermore, Cantrell could not bring a successful claim under common law tort doctrine, as the Indiana Tort Claims Act would bar his claim for noncompliance with the Act’s notice requirement. Id. at *10-11.

Still, the plaintiff’s federal law claim survived the defendant’s motion for summary judgment, as the district court denied this motion. Id. at *10. The court explained that a reasonable person could find that Morris could be held personally liable under the federal statute, and regardless, Cantrell still had a valid claim for injunctive relief. Id.

16. Rosalie Berger Levinson, Recognizing a Damage Remedy to Enforce Indiana’s Bill of Rights, 40 VAL. U. L. REV. 1, 3 (2005). Part of this lack of state constitutional law development has been attributed to the “broad expansion of federal constitutional liberties,” which negates the demand for an avenue of state redress. Id. As a result, many claims of state constitutional violations end up being addressed in federal court, as they are supplemental to federal civil rights claims. Id.

17. Id. at 5. In Boehm v. Town of St. John, the supreme court laid out the factors to be considered while interpreting constitutional rights: “the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions.” 675 N.E.2d 318, 321 (Ind. 1996).

18. Levinson, supra note 16, at 3. 19. Cantrell, 849 N.E.2d at 491-92 n.1, 500. In Orr v. Sonnenburg, the court of appeals

affirmed a judgment granting mental institution patients just compensation—$28 million—for their manual labor at the institution, relying on article I, section 21, the takings clause. 542 N.E.2d 201, 205 (Ind. Ct. App. 1989), vacated, 573 N.E.2d 398 (Ind. 1991). On review, the Indiana Supreme Court vacated the lower court’s decision on other grounds and specifically declined to comment on “the distinction between an award of damages and back wages.” Bayh v. Sonnenburg, 573 N.E.2d 398, 421 (Ind. 1991). In an attempt to clarify the


district courts have come to opposing conclusions when deciding whether or not to recognize an implied cause of action.20

B. Available remedies for article I, section 9 violations

With no explicit remedy for free speech violations written into the text of the constitution, challenges brought under section 9 have only been subject to equitable relief.21 Although a private right to recover damages has not been established by the court or the legislature, the availability of other remedies—declaratory and injunctive relief—has already been acknowledged.22 In one notable Indiana Supreme Court decision, Price v. State,23 this constitutional provision was allowed to successfully serve as immunity from prosecution.24 In Price, the court considered whether a defendant’s political expressions could serve as the basis for a disorderly conduct conviction without illegally invading the individual’s constitutional right to freedom of expression.25 In an effort to protect the section 9 constitutional guarantees, it held that it must be shown that the state has not imposed a material burden on a core value such as the right to engage in political expression.26 In a parallel civil context, the court also determined

significance of that case, the Cantrell court described the takings clause decision as narrow, “not hav[ing] any more general implication for constitutional violations.” 849 N.E.2d at 500.

Similarly, the Cantrell court denounced another possible creation of an implied remedy, which was argued to have come out of the appellate court’s decision in Lach v. Lake County, 621 N.E.2d 357 (Ind. Ct. App. 1993). 849 N.E.2d at 500. There, the supreme court explained, a remedy for a free speech violation was based on a relevant statute governing sheriff’s employees, not any constitutional provisions. Id.

20. Compare Discovery House, Inc. v. Consol. City of Indianapolis, 43 F. Supp. 2d 997, 1004 (N.D. Ind. 1999) (finding an implied right to damages under the state constitution, specifically article I, section 23, the equal privileges and immunities clauses, based on the earlier state appellate court decision in Orr), with Raines v. Strittmatter, No. 1:03-CV-10289-JDTTAB, 2004 WL 2137634, at *7 (S.D. Ind. June 29, 2004) (inferring from its silence on the issue that the state’s high court would not imply such a constitutional remedy), and Estate of O’Bryan v. Town of Sellersburg, No. NA 02-238-CH/H, 2003 WL 21852320, at *4 (S.D. Ind. July 2, 2003) (refusing to imply a constitutional remedy where no Indiana state court had yet indicated the existence of such).

21. Cantrell, 849 N.E.2d at 499. 22. Id. Such remedies have also been recognized for several other constitutional

provisions under article I, including sections 1, 4, 6, 23, and 24. See Levinson, supra note 16, at 15-16 & n.70.

23. 622 N.E.2d 954 (Ind. 1993). 24. Id. at 964-65. 25. Id. at 956. 26. Id. at 960.


that an assertion of section 9 rights could serve as immunity from civil liability.27

IV. THE INDIANA SUPREME COURT’S ANALYSIS

In a unanimous opinion, the Indiana Supreme Court provided a faint hint of its take on the heretofore neglected issue of the existence of an implied cause of action for damages for violations of constitutional rights.28 However, the court immediately forestalled the tackling of the broader issue by prefacing its decision with a fatal narrowing of the question certified by the federal district court,29 explaining that it was wary of the inevitable wide, overreaching applications in which any less fact-specific answer would result.30 Thus the question became not whether a private action could be brought under the Indiana Constitution, but rather whether “an employee . . . whose discharge is alleged to have violated rights of free speech guaranteed by . . . the Indiana Constitution [can] assert a claim for money damages.”31 Following the rephrasing, the court set the tone for this indefinable opinion, asserting its ultimate determination—with less than adequate explanation and reasoning—that regardless of whether section 9 provides any protection for terminated public employees, it does not support a damages remedy under such circumstances.32 Quickly, the court turned to the glaring question of what, if any, remedies are available for free speech violations; it began with an analysis of the existing statutory and common law remedies for wrongful discharge, followed by a survey of any possible constitutional remedies.

27. See Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind. 1999)

(recognizing the commitment to freedom of expression by requiring clear evidence of actual malice before plaintiff could succeed on a defamation claim based on comments of public interest).

28. Cantrell v. Morris, 849 N.E.2d 488, 490 (Ind. 2006). 29. See supra Part II. 30. Cantrell, 849 N.E.2d at 491. As the court described, “Responses to certified

questions run the risk of excessively broad declarations unanchored by the facts of a specific case. We think resolution of this issue in the abstract is particularly inappropriate because of the wide range of situations in which it may arise.” Id. at 498. The court took great care to make it clear that this holding should not be applied under factually different circumstances; it was only relevant to the specific allegations of this case. See id. at 491.

31. Id. 32. Id. at 491-93. Although it declined to explore the topic any further, the court noted

that it was not foreclosing the possibility that there may be certain situations in which a terminated public employee could find some kind of constitutional protection (excluding a private right of action for damages) under section 9. Id. at 492.


A. Existing statutory and common law remedies

The supreme court first looked to existing legislation regarding such constitutional infringements, only to find that Indiana had yet to provide any explicit civil remedy.33 While the state did enact a provision specifically concerning the free speech rights of court employees, it failed to include an express remedy .34

With no guidance from the legislature, the court turned to common law. It determined that “to the extent Article I, Section 9 is relevant to any claim for discharge, the claim is simply a common law claim for wrongful discharge.”35 Refusing to declare that, or to even engage in a discussion whether, a section 9 violation (or any constitutional right violation) may give

33. See id. The court noted that Indiana did not have a state counterpart for federal

statute 42 U.S.C. § 1983. See id. Section 1983 allows a private right of action for a violation of federal rights by state actions; it also provides for civil remedies, including damages. See 42 U.S.C. § 1983 (2000). Other states have enacted their own versions of section 1983, expressly allowing a cause of action for damages when a state constitutional violation is established. See, e.g., CAL. CIV. CODE § 52.1(b) (West 2006); ME. REV. STAT. ANN. tit. 5, § 4682 (2006); MASS. GEN. LAWS ANN. ch. 12, § 11H (West 2007). See generally 1 JENNIFER FRIESEN, STATE

CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES 7-68 to 7-80 (4th ed. 2006) (summarizing enactments of such laws by state).

34. IND. CODE § 33-23-12-1 to 33-23-12-3 (2004). This statute provides: [Sec. 1.] The general assembly finds that: (1) the right of every citizen to freely participate in political activity is inherent in the guarantee of free speech contained in Article 1, Section 9 of the Constitution of the State of Indiana and in Amendment I to the Constitution of the United States; (2) the right to freely participate in political activity is guaranteed to state employees under IC 4-15-10-2; (3) the judiciary is not less subject to constitutional strictures against governmental interference with the free exercise of speech than are the executive and legislative branches of government; and (4) employees in the judicial branch of state government have the same rights guaranteed to all Indiana citizens. . . . . [Sec. 3.] Except when on duty or acting in an official capacity and except where otherwise provided by state or federal law, a court employee may not be: (1) discouraged from engaging in political activity; or (2) denied the right to choose to refrain from engaging in political activity.

Id. 35. Cantrell, 849 N.E.2d at 494. The court qualified this statement by expressly not

“embracing [the] general principle” that a wrongful discharge claim arises when an employee is terminated for “exercising a statutory right or for refusing to violate the law.” Id.


rise to a civil damage claim under a constitutionally-implied tort action,36 the court explained that just as a discharge for an exercise of a statutory right provides for a wrongful discharge cause of action, so too can a discharge based on the exercise of a constitutional right.37 The court took great lengths to ensure that it would not be misinterpreted as recognizing an implied tort under section 9, restating that instead, this constitutional provision was merely “supply[ing] the duty required for a conventional tort claim.”38 As a “conventional tort claim,” it would therefore be subject to the Indiana Tort Claims Act (“ITCA”), which applies when the defendant is a governmental entity or official, such as a judge.39

B. Constitutional remedies

Further exploring the available remedies for a section 9 violation, the court considered the possibility of explicit and implicit constitutional causes of action for damages. It did not take long, however, for the court to determine that there was no explicit right to a civil damage remedy in the Indiana Constitution itself, and thus the only support from this source of law

36. Id. at 498. Such a claim could be supported by applying the tort doctrine set out in

the Second Restatement of Torts through which a damage claim can be accorded by the court to an injured party after establishing a violation of a constitutional provision that does not expressly provide a civil remedy. Id. at 497-98 (citing RESTATEMENT (SECOND) OF TORTS § 874A (1979)). See generally FRIESEN, supra note 33, at 7-14 to 7-18 (discussing section 874A and its use to imply a cause of action for damages). Declaring that legislative intent must be the determinative factor in deciding whether to adopt this doctrine and supply a court-created remedy, the court analyzed the issue here in one sentence: “[E]arly Indiana history is replete with examples of politically motivated job termination or replacement, and legislative recognition of free expression rights of public employees is relatively recent.” Cantrell, 849 N.E.2d at 498. Without further explanation, the court expressed its disinclination to provide any conclusive response regarding this basis for such a possible remedy. See id.

37. Cantrell, 849 N.E.2d at 498. 38. Id. 39. Id. at 494. The court explained that the ITCA as applied under the basic facts of this

case would provide the defendant with qualified immunity for her “discretionary act,” which would not shield her from liability if it was shown that she violated a “clearly established” statutory or constitutional right about which a reasonably competent official should have known. Id. at 495-97.

The court also noted that, under the ITCA, timely notice must be given to the attorney general or the state agency involved for the claim to survive. Id. at 495 n.5. This would become significant for John Cantrell, as his claim against Morris was ultimately barred because of his failure to give the proper notice. Cantrell v. Morris, No. 2:04CV364, 2006 WL 3743109, at *10-11 (N.D. Ind. Dec. 15, 2006).


for a remedy would have to be an implied right of action.40 First, the court seemed to acknowledge the argument that section 9 is a self-executing provision; it just as soon declined to explore this possibility, stating only that it would not address the issue “divorced from factual context[],” as “embracing a broad principle . . . presents that problem in an extreme form.”41 Having instantly foreclosed that prospect, the court next looked to Indiana court precedent to determine if the state constitution has ever been held to implicitly provide a civil damage remedy for constitutional rights violations.42 While several appellate court and federal district court decisions were offered as supporting this principle, the supreme court concluded that all of these cases were distinguishable and that none could stand for “the general proposition” of an implied constitutional damage remedy.43

After hastily determining that no implied cause of action had been read into the Indiana Constitution, the court continued with an in-depth description of implied damage remedies under federal law and, further, with an attempt to reconcile the differences between the federal and state positions on this issue.44 The court began with a discussion of the landmark Supreme Court decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,45 where a federal implied civil right to damages was first recognized.46 It explained that since Bivens, however, the Supreme Court has

40. Cantrell, 849 N.E.2d at 499. The court rejected the view that a civil damage remedy

could be extrapolated from article I, section 12, which states in pertinent part: “All courts shall be open; and every person, for injury done to him . . . shall have remedy by due course of law. Justice shall be administered . . . completely, and without denial . . . .” IND. CONST. art. I, § 12. The court found that section 12 “does not specify any particular remedy for any particular wrong,” and that it would work to such an end only with a provision such as the takings clause, where the clause specifically “creates within itself” a clearly defined remedy—just compensation. Cantrell, 849 N.E.2d at 499.

41. Cantrell, 849 N.E.2d at 499-500. While providing a definition for a “self-executing” provision, the court conceded that it was not “clear as to the precise content of the concept.” Id. For a short discussion on self-executing provisions, see FRIESEN, supra note 33, at 7-11 to 7-13.

42. Cantrell, 849 N.E.2d at 500-01. 43. Id.; see also supra notes 19-20 and accompanying text. 44. Cantrell, 849 N.E.2d at 501-507. 45. 403 U.S. 388 (1971). 46. Cantrell, 849 N.E.2d at 501 (citing Bivens, 403 U.S. at 396-97). In Bivens, the

complainant alleged that agents of the Federal Bureau of Narcotics entered and searched his apartment without a warrant and arrested him on narcotics charges without probable cause. 403 U.S. at 389. Bivens sought damages in the amount of $15,000 per agent to compensate for the “great humiliation, embarrassment, and mental suffering” that he sustained as a result of the intrusion of his constitutional rights. Id. at 389-90. Finding an implied right of action for


become “reluctant” to extend this implied right to damages in other circumstances.47 This led the Indiana court to consider the factors initially identified by the federal courts as supportive of an implied damage remedy,48 and to misguidedly resolve that because of the significant distinctions between federal and state constitutional remedies, such factors are not directly applicable to violations of state constitutional rights.49 With this, the

damages, the Supreme Court held that money damages are recoverable for injuries incurred from a violation of an individual’s Fourth Amendment rights by federal officers. Id. at 397.

47. Cantrell, 849 N.E.2d at 501-04. First, though, the Indiana court cited two Supreme Court cases following Bivens in which the Court relied on an implied constitutional remedy to uphold civil actions for damages resulting from constitutional violations. Id. at 501-02 (citing Carlson v. Green, 446 U.S. 14, 18-23 (1980) (upholding a damage claim against federal prison officials based on alleged Eighth Amendment, due process, and equal protection rights violations resulting in death, as the only alternative remedy—the Federal Tort Claims Act (“FTCA”)—was insufficient as a deterrent for such violations); Davis v. Passman, 442 U.S. 228, 230-31, 245 (1979) (allowing a claim for damages based on a violation of the Due Process Clause under the Fifth Amendment where a female employee was allegedly the victim of sex-based discrimination by her employer—a former U.S. Congressman—and where no other remedy was available)).

In contrast, the state court highlighted several Supreme Court decisions that declined to follow the Bivens line of reasoning and imply a right of action for damages. Cantrell, 849 N.E.2d at 502-04 (citing FDIC v. Meyer, 510 U.S. 471, 485-86 (1994) (finding that a civil claim for damages cannot be brought against a federal agency, as opposed to an individual officer, because it would be counterproductive to the purpose of Bivens); Schweiker v. Chilicky, 487 U.S. 412, 425-27 (1988) (rejecting a cause of action for damages relating to an alleged denial of due process in the handling of Social Security claims, as Congress specifically provided an administrative remedy and not a damage remedy); Bush v. Lucas, 462 U.S. 367, 386-89 (1983) (declining to provide a NASA employee with a civil damage remedy against his director for an alleged First Amendment violation where an administrative remedy was already available, on the basis that Congress is better positioned to determine the appropriate avenue of redress for federal employees)).

For a brief survey of the posture of other states on the Bivens issue, see generally FRIESEN, supra note 33, at 7-20 to 7-66, which provides summaries of the states that have adopted, or at least remained open to Bivens, and of those that have strayed from it.

48. Cantrell, 849 N.E.2d at 501-02. The court looked to the rationales employed in Bivens and Carlson, finding that, “‘it is damages or nothing,’” was the most prominent factor upon which the Court relied. Id. at 506 (quoting Bivens, 403 U.S. at 410). Other factors considered included the inability of other available remedies to sufficiently deter unlawful conduct, to provide punitive damages, and to allow for jury trials, in addition to the need for uniform federal law (i.e., not controlled by state law, as is the case in an FTCA claim) regarding constitutional remedies. Id. at 502 (citing Carlson, 446 U.S. at 21-24).

49. Id. at 505-07. First, the court noted that while it is essential to determine whether a remedy in federal court arises under the Federal Constitution so as to sanction federal jurisdiction, this is immaterial in state court; a violation of a state constitutional right will inevitably be governed by state law, whether the remedy is provided by the state constitution or state common law. Id. at 505. Another important distinction, the court explained, is the


court concluded that if a terminated public employee can establish a wrongful discharge claim based on a violation of section 9 rights, the remedy will be based in tort and subject to the limitations of the ITCA; the Indiana Constitution itself does not provide a remedy for such a claim.50

V. ANALYSIS AND IMPLICATIONS

Through this case, the Indiana Supreme Court had its opportunity to at least speak to the development of state constitutional law and to, ideally, define the confines of the state’s bill of rights. However, with brevity and evasiveness the court disappointingly declined this invitation, leading one to question the soundness of its analysis and ultimate holding. Part A will suggest that the court’s analysis lacked the necessary depth and completeness to adequately address this significant, current issue because the court failed to fully consider and explain its views on the myriad of arguments regarding the recognition of a right of action under the state constitution. Subsequently, Part B will describe the possible implications of this decision as leaving a gaping hole in the meaningful development of state constitutional law and, consequently, in the protection of individuals’ constitutional rights, as this opinion skirted the issue and left many questions unanswered.

A. Soundness of the court’s analysis

By its acceptance of this certified question, it was expected that the Indiana Supreme Court would directly address the broader issue of and resolve the questions surrounding implied rights of action under the state constitution.51 However, the court’s rephrasing of the question posed by the availability of other remedies provided by the state, such as common law tort doctrine, which may not always exist in the federal system. Id. at 505-06. While a federally implied right of action can be justified by a lack of alternative remedies, this is not so in Indiana where “state tort law is generally available even if restricted by the ITCA.” Id. at 506. Lastly, the court addressed the concern that the proscription of punitive damage awards under existing remedies would leave complainants without complete redress and future offenders with no effective deterrent. Id. The court argued that legislatively imposed limits on damage remedies are not unconstitutional, save express constitutional language to the contrary, and that “if the legislature believes that a broader remedy is needed to redress that constitutional violation or others, then it is free to provide one.” Id.

50. Id. at 507. The court refused to opine whether a violation of section 9 can in fact support a claim for wrongful discharge. Id. It also “expressly decline[d] to address whether termination of a public employee may give rise to a violation of the Indiana Constitution.” Id.

51. See, e.g., Levinson, supra note 16, at 3-4 (anticipating that the Indiana Supreme Court would shed some light on the scope of the Indiana Bill of Rights and answer the


district court immediately foreclosed the possibility of any substantial clarification.52 While the court’s legitimate fear of “excessively broad declarations unanchored by the facts of a specific case” 53 may arguably justify its narrowing of the issue, its subsequent analysis of and ultimate answer to the revamped question may be more difficult to justify. From the outset, the court described the remedies available for a tort claim of wrongful discharge, yet it expressly would not even admit whether a free speech violation, like the one alleged by Cantrell, can suffice as such a claim.54 Such dead-end analyses interrupt this opinion, providing more ambiguity and little guidance, and suggest that the court did not satisfactorily explore the confines of this issue.

Fostering further frustration, the court went on to casually disregard other possible arguments for the acknowledgement of an implied remedy without complete explanations. For one, the doctrine of the Restatement (Second) of Torts, section 874A, was given little attention, as just three short sentences were dedicated to this “analysis” before the court defaulted to its refusal to address any general issues.55 Similarly, in its brief, four sentence analysis of the “self-executing provision” argument, the state court declined to “expound more generally on the availability of a civil damage remedy” in this regard.56 Although it did acknowledge the argument, the mere mention of this possible source of support without more offered nothing to the court’s substantive analysis other than an additional unanswered question.

“critical question” of whether a private damages action could be brought under this constitutional provision).

52. See supra Part II. 53. Cantrell, 849 N.E.2d at 498. 54. Id. at 507 (“If a violation of Section 9 can supply the invasion of a right necessary

for a wrongful discharge claim . . . .” (emphasis added)). The court went so far as to explain the principle behind Indiana law’s recognition and application of this common law tort, only to declare—absent any reasoning—that it would not embrace that principle here. Id. at 494.

55. Id. at 498. In contrast to the Indiana court’s hurried rejection of this doctrine, others have relied at least in part on section 874A in support of an implied right of action under state constitutional provisions. E.g., Brown v. State, 674 N.E.2d 1129, 1138-40 (N.Y. 1996) (reasoning that the judicially-created implied damage remedy for violations of the state’s equal protection and search and seizure clauses was consistent with section 874A); see also FRIESEN, supra note 33, at 7-14 to 7-18 (discussing section 874A and its use to imply a cause of action for damages); John M. Baker, The Minnesota Constitution as a Sword: The Evolving Private Cause of Action, 20 WM. MITCHELL L. REV. 313, 322-24 (1994) (suggesting that states may rely on the Restatement’s rule, in addition to the “self-executing” rights doctrine, the common law of England, and Bivens, to imply a damage remedy).

56. Cantrell, 849 N.E.2d at 499-500.


In stark contrast, however, the court devoted its longest and most detailed analysis to the history and current state of the federal law on this issue.57 While many other states have looked to the Supreme Court’s line of reasoning to support their decisions both in adoption and rejection of implied rights of action for constitutional violations,58 the Indiana court’s extensive emphasis on this external source of law overshadowed its own jurisprudence.59 Thus, in misapplying its focus, the court granted its federal counterpart much more weight than was warranted and imprudently rested on the assumption that such was the authoritative, and maybe the only, grounds for implying a damage remedy.60 With this, the court tied its hands and potentially dimmed the light on the advancement of Indiana state constitutional law.

B. Implications of the decision

Perhaps more disconcerting than the deficiencies of the court’s analysis are the implications that this decision may have regarding the parameters and legitimacy of state constitutional protections. By repeatedly declining to

57. Id. at 501-07. 58. E.g., Brown v. Ely, 14 P.3d 257, 261 (Alaska 2000) (relying on the Bivens rationale

to conclude that a private cause of action for damages will not be implied when alternative means of redress are available); Katzberg v. Regents of Univ. of Cal., 58 P.3d 339, 354-58 (Cal. 2002) (relying on Bivens factors to evaluate whether a monetary remedy should be implied); Binette v. Sabo, 710 A.2d 688, 700 (Conn. 1998) (explaining that it will look to, among other factors, the considerations of Bivens and its progeny in determining whether an implied damage remedy will be available for a claim).

59. The court dedicated a mere fraction of its discussion to Indiana jurisprudence relevant to this issue as compared to its complete survey and analysis of federal law. See Cantrell, 849 N.E.2d at 500-01.

60. While state courts may reasonably consider the Bivens holding and rationales in determining whether to recognize an implied damage remedy under state constitutional law, state judges would be remiss to ignore the unique concerns of federal courts that may render such reasoning irrelevant to their decisions. See Jennifer Friesen, Recovering Damages for State Bills of Rights Claims, 63 TEX. L. REV. 1269, 1275 (1985) (“State judges should not suffer from the conservatizing influences, which affect federal courts, of the need to make nationally uniform rules . . . .”); Levinson, supra note 16, at 12 & n.49 (“Because federal courts make laws that bind all states and state officials, their decisions raise unique concerns.”).

Moreover, Professor Jennifer Friesen explains that “there is a much older body of law generated by state courts”—section 874 of the Second Restatement of Torts—“which more directly supports judicial creation of a damage remedy for state constitutional deprivations, even in the absence of legislative implementation.” Friesen, supra, at 1281; see also supra note 36 and accompanying text.


comment on relevant issues, the Indiana Supreme Court left the district court, in addition to any state courts, to subsequently face such matters with more questions than answers.61

Most significant, as the court both denied Cantrell a private right of action under the constitutional provision violated and refused to secure him relief under a wrongful discharge claim—the only other remedy possible—he was left with potentially no means of redress for the harm suffered.62 This not only suggests that the state’s guarantee of freedom of expression may be feeble, but also that the state’s bill of rights generally may not be capable of any practical protection.63 Furthermore, with such a fact-specific holding, the Indiana state and district courts left to interpret this indecisive precedent in the future will have little guidance concerning the possible existence of constitutionally implied rights of action under different circumstances or different provisions of the Indiana Constitution.

Recognizing the need for some definite direction in this area, the court pointed to the legislature for a resolution.64 Thus, the judicial inaction of Cantrell may be said to implicate the need for legislative action, being that the one clear assertion of this less-than-clear decision is that the court is not inclined, at least currently, to tackle the issue from the bench. This disinclination, however, may be justifiable, as a “legislative solution is preferable to judicial action in this area.”65 Nonetheless, where the legislature

61. The crucial questions at the forefront of this case of whether a termination can give

rise to a constitutional violation and whether a violation of the freedom of speech provision can suffice as the basis of a wrongful discharge claim were both left untouched by the state’s highest court. Only by a mere technicality was the district court subsequently able to resolve this case, as Cantrell’s failure to comply with the ITCA’s notice requirement preempted any possibility of proceeding on a wrongful discharge claim. Cantrell v. Morris, No. 2:04CV364, 2006 WL 3743109, at *10-11 (N.D. Ind. Dec. 15, 2006).

62. While equitable relief has been recognized for such a violation, as discussed above in Part III.B of this Comment, injunctive or declaratory relief would not have benefited Cantrell because the injuries he incurred since his termination (i.e., income lost during the period of unemployment) could only be redressed through monetary compensation.

63. See Friesen, supra note 60, at 1272 (arguing that “states must resolve these issues now unless the rights secured under state constitutions are to become a false promise”).

64. Cantrell, 849 N.E.2d at 506-07 (“[I]f the legislature believes that a broader remedy is needed to redress [a] constitutional violation . . . then it is free to provide one.”).

65. Friesen, supra note 60, at 1284. Professor Friesen suggests that there are four reasons in support of legislative action: (1) it is more cost- and time-efficient than the judicial process; (2) a statute can provide clearer standards to which persons and organizations can conform their conduct; (3) it may result in more “sensible and workable rules” by allowing for participation by the parties likely to be affected; and (4) the legislative process can provide an “educative function,” creating a greater sense of awareness of and commitment to the issue.


has failed to take action—Indiana has no such statute addressing private causes of action for constitutional violations—the courts may be the only means of supplying a remedy.66 Until some action is taken to protect the fundamental rights guaranteed under the Indiana Constitution, claims of infringement of such will continue to be, at worst, without redress and, at best, paradoxically subordinate to the ITCA.67

VI. CONCLUSION

Through its decidedly narrow declaration that article I, section 9 of the Indiana Constitution does not give rise to a civil damage remedy for the termination of a public employee based on a violation of his right to freedom of expression, the Indiana Supreme Court provided little guidance as to the future development of this state’s constitutional law. The court’s unwillingness to address significant issues and the lack of clarity of its analysis not only left the individual here without redress for the infringement of his fundamental constitutional guarantees, but it also left the state’s bill of rights with uncertain force. While the reluctance of the court to establish a judicially-created damage remedy is understandable, as the legislature may be better positioned to do so, the implications of this evasive decision suggest that Indiana constitutional law will remain stagnant, if not paralyzed, until some body (be it the legislature or the courts) takes action.

Id. In support of this proposition, a few states have already enacted legislation creating civil remedies for violations of constitutional rights. See id. at 1284-88.

66. In Indiana, the idea that the state constitution may provide a remedy for a violation of its guarantees was acknowledged by the very legislature that was responsible for drafting revisions of the document: “‘[I]f the Legislature neglects to carry out the details, the Constitution will itself afford the remedy.’” Levinson, supra note 16, at 6-7 (quoting 2 REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE

CONSTITUTION OF THE STATE OF INDIANA 1850, at 1279 (1850)) (emphasis omitted). 67. As the Cantrell court suggests, such a violation of the constitutional right to

freedom of expression will be subject to the limitations and requirements of a piece of legislation—the ITCA—thereby creating the paradox of a state statute controlling the state constitution.

right for civil remedy

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