Cantrell v. Morris

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Adrian P. Smith Steve Carter

David S. Gladish Attorney General

Highland, Indiana

Thomas M. Fisher

ATTORNEYS FOR AMICUS CURIAE Solicitor General

INDIANA CIVIL LIBERTIES UNION

Michael K. Sutherlin Frances Barrow

Nicholas D. Conway David L. Steiner

Indianapolis, Indiana Deputy Attorney Generals

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 94S00-0505-CQ-243

JOHN CANTRELL,

Appellant (Plaintiff below),

v.

SONYA A. MORRIS,

Appellee (Defendant below).

_________________________________

On Certified Question from the United States District Court,

Northern District of Indiana, No. 2:04-CV-364-PPS-APR

The Honorable Andrew P. Rodovich, Judge

_________________________________

June 21, 2006

Boehm, Justice.

We respond to a question certified from the United States District Court for the Northern

District of Indiana as follows: 1) we do not resolve whether Article I, Section 9 of the Indiana

Constitution imposes any restrictions on government officials in dealing with political activity or

affiliation of public employees; 2) to the extent that tort doctrines give a civil damage remedy to

a public employee terminated for political activity or affiliation in violation of Article I, Section

9 of the Indiana Constitution, any such wrongful discharge claim is governed by the Indiana Tort

Claims Act (ITCA); and 3) the Indiana Constitution does not of itself give rise to any such claim,

and does not prevent the ITCA from applying to such a claim.

Facts and Procedural History

Public defenders in the Criminal Division of the East Chicago City Court are appointed

by the elected judge of that court. In 2002, former East Chicago Judge Eduardo Fontanez ap-

pointed John Cantrell. Judge Fontanez did not seek reelection in 2004 and Cantrell actively and

openly supported the candidacy of Corinth Bishop II for the post. Sonya A. Morris won the elec-

tion and took office on January 1, 2004, and terminated Cantrell thirty days later.

Cantrell sued Morris in the United States District Court for the Northern District of Indi-

ana, alleging that she terminated his employment as public defender because of his support for

her opponent. Cantrell asserted that the termination gave rise to a claim under 42 U.S.C. § 1983

and also independent claims for violation of his rights of free speech and association under both

the federal and Indiana constitutions. Specifically, Cantrell asserted a right to recover compensa-

tory and punitive damages for violation of his right to free speech guaranteed by Article I, Sec-

tion 9 of the Indiana Constitution. He also asked for equitable relief in the form of an injunction

ordering reinstatement.

Morris moved to dismiss the claim for violation of Section 9, arguing that an allegation of

violation of the Indiana Constitution does not support a private cause of action for damages. The

district court denied the defendant’s motion to dismiss and certified the following question to this

Court:

Does a private right of action for damages exist under Article I, Section 9 of the

Indiana Constitution, and if so, what are the elements of the action the plaintiff

must prove?

The district court invited us to rephrase the question if we choose to do so, and we accept the in-

vitation. We do not believe the question as phrased is susceptible of a generally applicable re-

sponse. The question is limited to violations of Article I, Section 9, but even as so limited it em-

braces a broad range of potential claims. For example, we think the facts of this case and the

government’s ordering the closing of a newspaper do not necessarily invoke the same considera-

2

tions, but both would implicate Section 9 of the Indiana Constitution. Accordingly, we are reluc-

tant to attempt to address this question without some factual context. We therefore narrow the

question to the more specific one presented by the allegations of this complaint:

Does an employee of a state or local governmental agency whose discharge is al-

leged to have violated rights of free speech guaranteed by Article I, Section 9 of

the Indiana Constitution assert a claim for money damages against the unit of

government or any individual responsible for the firing, and, if so, what is the

source of that claim and what are its elements?

We understand the certified question as framed by the federal court to ask whether the

Indiana Constitution gives rise to a civil damage remedy, as opposed to whether, if a violation of

Section 9 is established, common law tort doctrines support a damage claim. Although some

authorities seem to treat these two questions as one, as explained below we think these two is-

sues are distinct.

We think the answer to the certified question, as rephrased, is informed by a number of

distinct bodies of federal and state law. These include: 1) the federal law concerning the rights

of public employees terminated for political activity or affiliation; 2) Indiana statutory provisions

specifically addressing rights of court employees; 3) the Indiana Tort Claims Act and related

immunity doctrines; 4) Indiana state employment law; 5) basic state law tort doctrines; and 6) the

decisions of the Supreme Court of the United States and courts in other states recognizing a tort

remedy for some violations of the federal or state constitution, and rejecting it for others.

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

This Court has never considered whether Article I, Section 9 of the Indiana Constitution

affords public employees any protection at all from termination for political affiliation or activity

or for expressions of fact or opinion. 1 Determination of rights under the Indiana Constitution

1

Both the Seventh Circuit and the Indiana Court of Appeals have predicted that we would adopt the fed-

eral approach to government employees seeking protection under Article I, Section 9 for expressions on

matters of public concern, without regard to whether the employee’s position is one of policymaking.

Klunk v. County of Saint Joseph, 170 F.3d 772, 777-78 (7th Cir. 1999) upheld the termination of an em-

ployee of the probation department who intended to run for the local school board, an activity his em-

ployer determined was incompatible with the position. In Lach v. Lake County, 621 N.E.2d 357, 358

(Ind. Ct. App. 1993), trans. denied the Court of Appeals held that the suspension of a lieutenant in the

Lake County Sheriff’s Department for publishing letters questioning the relative qualifications of a candi-

3

may involve “the language of the text in the context of the history surrounding its drafting and

ratification, the purpose and structure of our constitution, and case law interpreting the specific

provisions.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996) (internal quotation

marks omitted). Claims of First Amendment rights of public employees have arisen in a wide

variety of contexts and have been held to depend on several different factors, including the na-

ture of the statements made or activities conducted by the employee, the position held by the

employee, and others. 2 We need not explore whether any similar rights are conferred by Article

I, Section 9, and if so under what circumstances. For the reasons given below, we conclude that

whether or not Article I, Section 9 of the Indiana Constitution affords any protection to public

employees under some circumstances, a terminated employee has no private right of action for

damages that arises under that Section.

We can resolve a few preliminary issues. First, Article I, Section 9 limits only govern-

mental actions, not the acts of private citizens. A termination by a private employer, therefore,

can have no Section 9 implications. Second, we do not agree that legislation is the only activity

subject to Section 9. Just as the First Amendment to the United States Constitution provides that

date for public office and the sheriff, violated Article I, Section 9. Both cases turned less on affiliation

than on content of the speech the employee had made (Lach) or might make (Klunk).

2

Although the First Amendment protects many public employees from partisan termination, political af-

filiation or activity may be considered in employment decisions as to some public employees. In Elrod v.

Burns, 427 U.S. 347, 375 (1976) the Supreme Court held that firings of low-level public employees be-

cause of their party affiliation could violate their First Amendment rights, but the controlling concurring

opinion of Justice Stewart made clear that the holding was limited to “a nonpolicymaking, nonconfiden-

tial government employee.” In Branti v. Finkel, 445 U.S. 507, 518 (1980) the Supreme Court explained

Elrod and rephrased the issue as “whether the hiring authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the public office involved.” The Court held in

Branti that an assistant public defender whose duties were confined to representation of clients could not

be fired for political reasons. This result turned importantly on the public defender’s responsibilities to

clients, as distinct from the broader public responsibilities of officials such as prosecutors. Id. at 519.

A related line of authority addresses termination of a public employee based on what the person

said as opposed to whether the employee is of the same party or faction. Under the “Pickering/Connick”

test, if the employee addresses a matter of public concern, it becomes necessary to balance the employee’s

interest in free expression against the government’s interest, as an employer, in promoting efficient opera-

tion. Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

Every issue in a public office is not a matter of public concern. Connick, 461 U.S. at 153-54.

Most recently, the United States Supreme Court held that although public employees retain their

rights as citizens, the employee’s statements in the course of the employee’s duties are not protected by

the First Amendment. Garcetti v. Ceballos, 126 S. Ct. 1951, 2006 U.S. LEXIS 4341, *21 (U.S. May 30,

2006).

4

“Congress shall make no law” abridging the right of free speech, Article I, Section 9 provides

that “No law shall be passed” restraining free speech. Based on this language, the State argues

that a violation of Section 9 requires the passage of a statute, so there can be no violation of this

provision for terminating employment. We have held, however, that the executive branch is sub-

ject to Section 9. Whittington v. State, 669 N.E.2d 1363, 1370 (Ind. 1996) (an individual’s right

to speak was not violated when he was arrested for speaking loudly toward a private individual,

not the police officers during a reported domestic dispute investigation); Price v. State, 622

N.E.2d 954, 960 (Ind. 1993) (police officers cannot materially burden an individual’s opportu-

nity to engage in political expression). Third, the termination in this case is by a judicial officer,

but the challenged action is as an employer. As such it is subject to the same legal framework as

an action of the executive branch, and is not entitled to the absolute immunity afforded judicial

acts. See Forrester v. White, 484 U.S. 219, 229-30 (1988) (in a suit for damages under § 1983, a

state court judge was not entitled to absolute judicial immunity for his decision to demote and

discharge a subordinate court employee because such employment decisions are administrative.)

“[I]t [is] the nature of the function performed, not the identity of the actor who performed it,”

that controls the degree of immunity given to the function. Id. at 229.

II. Existing Remedies for Wrongful Discharge

Several existing Indiana statutory provisions and judicial precedents are relevant to the

resolution of the question presented by the federal court.

A. Express Statutory Damage Remedies

A few states have enacted statutes creating or regulating claims for damages for state

constitutional torts. 3 Indiana, however, has no statutory provision comparable to 42 U.S.C. sec-

tion 1983 creating an explicit civil remedy for constitutional violations by either individual offi-

cers or governmental entities.

3

The first state civil rights statute was enacted in Massachusetts in 1979. It was known as “little 1983” or

the “baby civil rights bill.” See Mass. Gen. Laws Ann. Ch. 12, §§ 11H-I (West 1996). At least three

other states have enacted civil rights statutes similar in scope to 42 U.S.C. § 1983. See Ark. Code Ann. §

16-123-101 to 108 (1995); Cal. Civ. Code § 52.1(b) (West 1997); Me. Rev. Stat. Ann. tit. 5, § 4682

(1996). Nebraska has enacted a limited right of action for violations of state constitutional rights. See

Neb. Rev. Stat. § 20-148(a) (1996).

5

Indiana does have legislation expressly affirming the free speech rights of “court employ-

ees.” Ind. Code § 33-23-12-1 through 33-23-12-3 (2004). Specifically, the General Assembly

has acknowledged that “the right of every citizen to freely participate in political activity is in-

herent in the guarantee of free speech contained in Article 1, Section 9” and that “employees in

the judicial branch of state government have the same rights guaranteed to all Indiana citizens.”

I.C. § 33-23-12-1(1), (4). The same chapter provides that “a court employee” may not be “dis-

couraged from engaging in political activity.” I.C. § 33-23-12-3(1). A “court employee” in-

cludes any “person employed by . . . a city or town court.” I.C. § 33-23-12-2(10). Assuming

that to terminate employment for political activity is to “discourage” political activity by the ter-

minated employee and others, there is no express remedy for violation of this statute.

B. Individual Liability for Official Acts

We have recognized that an officer of a private corporation may be personally liable for

torts committed in the person’s capacity as an officer or agent of the corporation. See, e.g.,

Comm’r Ind. Dep’t of Envtl. Mgmt. v. RLG, Inc., 755 N.E.2d 556, 558 (Ind. 2001); State of Ind.

Civil Rights Comm’n v. County Line Park, Inc., 738 N.E.2d 1044, 1050 (Ind. 2000) (“an officer

is personally liable for the torts in which she has participated or which she has authorized or di-

rected”).

We do not appear to have addressed directly whether this doctrine applies to municipal

corporations or other governmental entities. We have, however, addressed the common law im-

munity of individual public officers for tort liability. By addressing immunity of individual gov-

ernment employees, we implicitly assume that in the absence of immunity, ordinary principles of

personal liability would apply. We have held that the qualified immunity applicable to 42 U.S.C.

section 1983 claims applies equally to claims against government officials under state law. Fos-

ter v. Pearcy, 270 Ind. 533, 538, 387 N.E.2d 446, 450 (1979) (“the employment and supervision

of deputies and employees in governmental offices, including the prosecutor’s office, is a discre-

tionary function” and as such the government official enjoys a qualified immunity for those

acts); see also Earles v. Perkins, 788 N.E.2d 1260, 1267 (Ind. Ct. App. 2003); Adams v. Schnei-

der, 71 Ind. App. 249, 255-56, 124 N.E. 718, 720 (1919) (in the absence of corruption an officer

is not liable when exercising discretion); Ind. Legal Encyclopedia, Officers § 40 (West 2001).

6

The qualified immunity doctrine has been largely displaced by the Indiana Tort Claims Act

(ITCA) immunity for discretionary acts described below.

C. Wrongful Discharge

Indiana law generally follows the employment at will doctrine that permits both the em-

ployer and the employee to terminate the employment at any time for a “good reason, bad rea-

son, or no reason at all.” See, e.g., Sample v. Kinser Ins. Agency, Inc., 700 N.E.2d 802, 805

(Ind. Ct. App. 1998). There are limits to this doctrine, however. Frampton v. Central Indiana

Gas Co., 260 Ind. 249, 253-54, 297 N.E.2d 425, 428 (1973) held that an employee who has been

terminated for filing a worker’s compensation claim may sue for damages. In Holtz v. Board of

Commissioners of Elkhart County, 560 N.E.2d 645, 647-48 (Ind. 1990), this Court held the

plaintiff’s claim was barred for failure to comply with the notice provisions of the ITCA. We did

not address the more general issue of whether employment at will was limited by public policy

exceptions, but Holtz seems to assume that the allegation that a county employee was terminated

in retaliation for reporting to the state highway department flaws in the county’s bridge inspec-

tion procedures stated a claim, albeit a claim governed by the ITCA. And McClanahan v. Rem-

ington Freight Lines, Inc., 517 N.E.2d 390, 393 (Ind. 1988), upheld a wrongful discharge claim

for damages by a truck driver who alleged he was fired for refusing to violate Illinois state

weight limits. These cases have been generalized to the proposition that an employee who has

been fired for exercising a statutory right or for refusing to violate the law has a claim for wrong-

ful discharge. Ind. Legal Encyclopedia, Employment § 45. Without embracing this general

principle, we agree 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.

We have specifically held that a wrongful discharge claim is a tort under Indiana law

governed by the ITCA if a governmental unit or official is the defendant. Holtz, 560 N.E.2d at

647-48. 4

4

The Indiana Tort Claims Act defines “loss” as “injury to or death of a person or damages to property.”

I.C. § 34-6-2-75. The parties agreed that the ITCA’s definition of “loss” does not include a claim for re-

taliatory discharge because employees at will have no property interest in their jobs. Both parties cite the

decisions of the Court of Appeals in Holtz v. Bd. of Comm’rs of Elkhart County, 548 N.E.2d 1220, 1221

(Ind. Ct. App. 1990), and Underwood v. City of Jasper Mun. Util. Sav. Bd., 678 N.E.2d 1280, 1284 (Ind.

7

D. Indiana Tort Claims Act

Unlike the Federal Tort Claims Act, the ITCA does not create causes of action and did

not constitute a waiver of sovereign immunity. The ITCA was the legislature’s response to

Campbell v. State, 259 Ind. 55, 61-62, 284 N.E.2d 733, 736-37 (1972) which abolished sover-

eign immunity in Indiana for most purposes. See Brownsburg Cmty. Sch. Corp. v. Natare Corp.,

824 N.E.2d 336, 345 (Ind. 2005); King v. Northeast Sec., Inc., 790 N.E.2d 474, 478 (Ind. 2003).

In general, the ITCA requires notice of claims against governmental entities and public employ-

ees to be given soon after the event. 5 It immunizes both the governmental entity and its officers

acting “within the scope of” their employment from liability in a number of areas. I.C. § 34-13-

3-3. Notably Indiana Code section 34-13-3-3(7) confers immunity for “[t]he performance of a

discretionary function.” This provision governs claims subject to the ITCA, and operates simi-

larly, but not identically, to the common law qualified immunity doctrine applicable to section

1983 claims. The immunity for discretionary acts insulates only those “significant policy and

political decisions which cannot be assessed by customary tort standards.” Peavler v. Bd. of

Comm’rs of Monroe County, 528 N.E.2d 40, 45 (Ind. 1988). “Discretionary acts,” for purposes

of the ITCA, does not mean “mere judgment or discernment,” but rather “refers to the exercise of

political power which is held accountable only to the Constitution or the political process.” Id.

We earlier held that employment decisions are “discretionary” under common law quali-

fied immunity, and also observed that they would be so for purposes of the ITCA. Foster v.

Pearcy, 270 Ind. 533, 538, 387 N.E.2d 446, 450 (1979) (“While we base our decision primarily

on the common law immunity traditionally accorded to prosecuting attorneys, we also note that

Ct. App. 1997), trans. denied, which relied on the Court of Appeals decision in Holtz. For reasons we

cannot explain, until very recently the Lexis report of the Court of Appeals decision in Holtz did not re-

veal the decision of this Court granting transfer, thereby vacating the Court of Appeals opinion, and

reaching the opposite result. The Court of Appeals in other recent cases has recognized this anomaly and

held the ITCA applicable to all torts committed against persons or property. See Irwin Mortgage Corp. v.

Marion County Treasurer, 816 N.E.2d 439, 446 (Ind. Ct. App. 2004); Ind. Dep’t of Transp. v. Shelly &

Sands, Inc., 756 N.E.2d 1063, 1077 (Ind. Ct. App. 2001), trans. denied; Burke v. Bd. of Dir. of the Mon-

roe County Pub. Library, 709 N.E.2d 1036, 1041-42 (Ind. Ct. App. 1999), vacated in part on reh’g, 711

N.E.2d 1288, trans. denied, 726 N.E.2d 314 (Ind. 1999).

5

The Indiana Tort Claims Act provides that a claim against the State is “barred unless notice is filed with

the attorney general or the state agency involved within two hundred seventy (270) days after the loss oc-

curs.” I.C. § 34-13-3-6(a). A claim against a political subdivision is barred unless notice is filed with the

governing body of that political subdivision and the Indiana political subdivision risk management within

180 days after the loss occurs. I.C. § 34-13-3-8(a).

8

the duty to inform the public can be characterized as a discretionary function and thus would fall

within the absolute immunity granted under the Indiana Tort Claims Act.”). Several years after

Foster, Peavler made clear that the immunity for discretionary acts attaches only to those “sig-

nificant policy and political decisions which cannot be assessed by customary tort standards.”

528 N.E.2d at 45. We think Peavler dictates that if there is a claim for termination in violation of

free speech rights, whether based on the state or Federal Constitution, it is subject to the same

standard.

The net result of the discriminating act immunized under the ITCA as applied to public

employee discharge claims is a retention of the substance of the common law doctrine of quali-

fied immunity. In Kellogg v. City of Gary, 562 N.E.2d 685, 703 (Ind. 1990) we applied quali-

fied immunity to a claim under 42 U.S.C. section 1983. Although Kellogg was applying federal

law, its description of the qualified immunity doctrine is equally valid as a description of “discre-

tionary acts” in the hiring and firing of public employees:

Nonjudicial public officers of course are not required to err at their own risk; they

are protected by an immunity, albeit in most cases a narrower one. Scheuer v.

Rhodes, 416 U.S. 232 (1974). “Government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). A public official may, however, be held liable if he violated

constitutional or statutory rights that were clearly established at the time he acted

such that a reasonably competent official should have then known the rules of law

governing his conduct, unless the official pleads and proves in his defense ex-

traordinary circumstances by virtue of which he neither knew nor should have

known of the relevant legal standard.

562 N.E.2d at 703 (emphasis in original) (quoting the standard for qualified immunity as set

forth in Thomas v. Sams, 734 F.2d 185, 190 (5th Cir. 1984)). Kellogg also quoted the standard

for qualified immunity as stated by the U.S. Supreme Court:

Whether an official may prevail in his qualified immunity defense depends upon

the “objective reasonableness of his conduct as measured by reference to clearly

established law.” No other “circumstances” are relevant to the issue of qualified

immunity.

Id. at 703-04 (quoting Davis v. Scherer, 468 U.S. 183, 191 (1984)). See also Kiddy-Brown v.

Blagojevich, 408 F.3d 346, 352 (7th Cir. 2005) (“Government officials performing discretionary

9

functions are entitled to qualified immunity from suit ‘as long as their actions could reasonably

have been thought consistent with the rights they are alleged to have violated.’”).

The Court of Appeals in Earles expressly adopted the Seventh Circuit’s two-step inquiry

for determining whether a government official’s conduct violated clearly established law and

therefore lost its immunity. 788 N.E.2d at 1266-67. First, the plaintiff must show that “the law

was clear in relation to the specific facts confronting the public official when he or she acted.”

Id. (citing Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993)). Second, courts should “evaluate

the objective reasonableness of the official’s conduct” considering “whether reasonably compe-

tent officials would agree on the application of the clearly established right to a given set of

facts.” Id. at 1267.

In short, as we stated in Foster, as applied to claims for wrongful discharge, we think this

body of law remains subject to the “discretionary act” immunity of the ITCA. Finally, in most

circumstances the ITCA provides practical immunity to the government officer in his or her in-

dividual capacity by providing that the governmental unit is to defend and pay any judgment for

actions taken within the scope of employment, including actions not immunized as “discretion-

ary” under Indiana Code section 34-13-3-3(7). I.C. § 34-13-3-5(b), (d). 6

E. Damage Claims for Wrongful Discharge in Violation of Section 9

Under traditional tort doctrines a violation of a statutory or constitutional obligation may

give rise to a civil damage claim. This doctrine is expressed in section 874A of the Second Re-

6

The ITCA explicitly immunizes government officials from personal civil liability for acts that the gov-

ernmental entity “answers the complaint” by responding that the individual acted outside the scope of the

individual’s employment unless:

an act or omission of the employee that causes a loss is:

(1) criminal;

(2) clearly outside the scope of the employee’s employment;

(3) malicious;

(4) willful and wanton; or

(5) calculated to benefit the employee personally.

I.C. § 34-13-3-5(c). A complaint against an employee personally must contain a “reasonable factual basis

supporting the allegations.” Id. A complaint against a government employee that does not allege a causal

relationship between the employee’s employment and the plaintiff’s injury falls outside the ITCA. Burke,

709 N.E.2d at 1040.

10

statement of Torts, which supports a common law tort damage remedy for some, but not all con-

stitutional violations. 7 The Restatement provides:

When a legislative provision protects a class of persons by proscribing or requir-

ing certain conduct but does not provide a civil remedy for the violation, the court

may, if it determines that the remedy is appropriate in furtherance of the purpose

of the legislation and needed to assure the effectiveness of the provision, accord to

an injured member of the class a right of action, using a suitable existing tort ac-

tion or a new cause of action analogous to an existing tort action.

Restatement (Second) of Torts § 874A (1979). A comment to this section of the Restatement

explains that “legislative” provisions include constitutional provisions. Id. at cmt. (a). This ap-

proach is similar to that of the seminal constitutional tort case, Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which cited earlier cases upholding

implied civil damage remedies for violations of federal statutes. 8 In order to invoke this doc-

trine, a plaintiff must be a member of the class of citizens the statute or constitutional provision

is designed to protect. 9 Whether a civil damage claim is available is deemed a matter of legisla-

tive intent. See Lachenman v. Stice, 838 N.E.2d 451, 461 (Ind. Ct. App. 2005), trans. denied

(“The unexcused or unjustified violation of a duty prescribed by a statute or ordinance consti-

tutes negligence per se if the statute or ordinance is intended to protect the class of persons in

which the plaintiff is included and the statute or ordinance is intended to protect against the risk

of the type of harm which has occurred as a result of its violation.”).

Here, the class of persons protected by Section 9 is all persons. Every individual and the

community as a whole benefits from the free exchange of ideas and the ability of all to partici-

pate in the political process. On the other hand, early Indiana history is replete with examples of

7

See, e.g., Binette v. Sabo, 710 A.2d 688, 693-94 (Conn. 1998); Dorwart v. Caraway, 58 P.3d 128, 136

(Mont. 2002); Brown v. State, 674 N.E.2d 1129, 1138 (N.Y. 1996); Shields v. Gerhart, 658 A.2d 924, 932

(Vt. 1995).

8

See Nixon v. Condon, 286 U.S. 73 (1932) and Nixon v. Herndon, 273 U.S. 536, 540 (1927) (civil dam-

age remedy for violation of federal statute forbidding racial discrimination at the voting polls); see also

Swafford v. Templeton, 185 U.S. 487 (1902) and Wiley v. Sinkler, 179 U.S. 58 (1900) (civil damage ac-

tion for unlawful rejection of plaintiffs’ votes at federal elections).

9

See Right Reason Publ’ns v. Silva, 691 N.E.2d 1347, 1352 (Ind. Ct. App. 1998) (“When a civil tort ac-

tion is premised upon violation of a duty imposed by statute, the initial question to be determined by the

court is whether the statute in question confers a private right of action.” In the case of a statute, this de-

termination begins with an examination of legislative intent.). See also City of Gary v. Smith & Wesson,

801 N.E.2d 1222, 1245 (Ind. 2003).

11

politically motivated job termination or replacement, 10 and legislative recognition of free expres-

sion rights of public employees is relatively recent. Responses to certified questions run the risk

of excessively broad declarations unanchored by the facts of a specific case. 11 We think resolu-

tion of this issue in the abstract is particularly inappropriate because of the wide range of situa-

tions in which it may arise. We therefore explicitly leave open the extent to whether public em-

ployees enjoy Indiana constitutional protection against employment action. To the extent there is

any such protection, however, termination of an employee for exercise of a constitutional right is

entitled to no lower status in tort law than termination for exercise of a statutory right. This does

not constitute recognition of an implied tort arising under the Constitution. Rather it recognizes

that the already established tort of wrongful discharge can be based on termination for exercise

of a constitutional as well as a statutory right. Otherwise stated, a constitutional provision can

supply the duty required for a conventional tort claim.

The General Assembly may not invade the constitutional rights of public employees, but

it may limit the circumstances under which civil damages may be recovered for violation of

those rights. As the Restatement noted, the legislative branch can establish, modify, or abolish

remedies for torts. Restatement (Second) of Torts § 874A at cmt. (b). The Indiana legislature

has done that in the ITCA as to claims against governmental units or government employees.

III. Constitutional Remedies

We turn now to the question whether the Indiana Constitution itself provides a damage

remedy for a public employee terminated in violation of Section 9.

10

Limiting terms of elected officials was advocated in the 1851 Constitution Convention as a means of

assuring periodic purging of patronage employees. 2 Report of the Debates & Proceedings of the Con-

vention for the Revision of the Constitution of the State of Indiana, 1310 (1850) (remarks of Delegate

Holman).

11

Citizens Nat’l Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241-42 (Ind. 1996) (“[C]ertified ques-

tions almost inevitably conflict with the longstanding policy of judicial restraint in constitutional matters.

. . . [S]uch questions tend to separate the constitutional claim from the specifics of the case. . . . Applica-

tion of the law to case-specific facts has always been relevant to this Court’s constitutional jurisprudence,

and though our consideration of certified questions promotes the accurate application of state law in fed-

eral courts, we also acknowledge the shortcomings of such proceedings.”); see also Matter of Zumbrun,

626 N.E.2d 452, 455 (Ind. 1993); Bureau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559 (Ind. 1986);

see generally Randall T. Shepard, Is Making State Constitutional Law through Certified Questions a

Good Idea or a Bad Idea?, 38 Val. U. L. Rev. 327 (2004).

12

A. Explicit Constitutional Remedies

There is no explicit language in the Indiana Constitution providing any specific remedy

for violations of constitutional rights. Cantrell argues that Article I, Section 12 evidences a dis-

position on the part of the framers to supply a civil damage remedy. That Section guarantees that

a remedy “by due course of law” is available to anyone “for injury done to him in his person,

property, or reputation” and that “[j]ustice shall be administered . . . completely, and without de-

nial.” But Article I, Section 12 does not specify any particular remedy for any particular wrong.

Rather, it leaves the definition of wrongs and the specification of remedies to the legislature and

the common law. 12 Nor does Section 12 mandate jurisdiction over any particular statutory or

constitutional claim. 13 We agree that the Takings Clause creates within itself the requirement of

just compensation and that Article I, Section 12 constitutionally mandates judicial enforcement

of that remedy. But remedies for Article I, Section 9 are not so clearly defined. Injunctions, 14

immunity from civil liability, 15 and immunity from prosecution 16 have already been identified as

available remedies to vindicate Section 9 rights. In short, whether a civil damage remedy exists

under Section 9, and if so, against whom, and for what types of violation are not resolved by the

text of the Constitution or by any Indiana precedent.

B. Implicit Causes of Action for Damages

1. Self-Executing Provisions

12

McIntosh v. Melroe Co., 729 N.E.2d 972, 978 (Ind. 2000) (“the General Assembly’s abrogation of the

common law of product liability through the statute of repose does not run afoul of the ‘substantive’ due

course of law provision of Article I, Section 12.”).

13

See Blanck v. Ind. Dep’t of Corrections, 829 N.E.2d 505, 511 (Ind. 2005) (rejecting an implied cause of

action under Section 12 because “[i]f the Open Courts Clause, either standing alone or as kind of a juris-

diction-conferring mechanism for statutory rights, entitles Blanck to judicial review, then it would also

entitle any person with appropriate standing to judicial review to enforce the rights provided by any stat-

ute,” which would implausibly foreclose the need “to analyze whether the Legislature intended that a pri-

vate right of action be inferred from a statute.”).

14

Fair Share Org. v. Mitnick, 245 Ind. 324, 327-28, 198 N.E.2d 765, 766 (1964) (upholding an order

permanently enjoining appellant from picketing appellee’s place of business despite Article I, Section 9).

15

Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind. 1999) (clear evidence of actual

malice required for a defamation suit based on comments of public interest).

16

Price, 622 N.E.2d at 960 (the State may not punish expression when doing so would impose a material

burden upon a core constitutional value).

13

The Indiana Civil Liberties Union, as Amicus, argues that at a minimum a damage rem-

edy is implied for violations of constitutional provisions that are “self-executing,” i.e. provisions

that supply “a sufficient rule by means of which the right given may be enforced and protected,

or the duty imposed may be enforced,” as opposed to those that “merely indicate principles,

without laying down rules by means of which those principles may be given the force of law.” 17

We have already observed the difficulty of addressing certified questions divorced from factual

contexts. Even if we were clear as to the precise content of the concept of a self-executing pro-

vision, embracing a broad principle, such as drawing a line on that basis, presents that problem in

an extreme form. We therefore decline this request to expound more generally on the availabil-

ity of a civil damage remedy.

2. Indiana Jurisprudence to Date

The parties cite authorities in which violations of constitutional provisions have sup-

ported civil damage remedies, but none of these supports the general proposition that the Indiana

Constitution itself provides a damage remedy for a violation of its provisions. The Court of Ap-

peals has suggested that a state constitutional requirement of prompt arraignment would furnish

support for the prisoner’s tort claim for false imprisonment. Matovina v. Hult, 125 Ind. App.

236, 245, 123 N.E.2d 893, 898 (1955). This decision seems to rest essentially on common law

tort principles. In Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), this Court vacated an opin-

ion of the Court of Appeals that had affirmed a 28 million dollar judgment in favor of mental in-

stitution patients who performed manual labor at the institution. See Orr v. Sonnenburg, 542

N.E.2d 201, 205 (Ind. Ct. App. 1989). We held that this labor did not constitute “particular ser-

vices” subject to the Takings Clause of Article I, Section 21. Bayh, 573 N.E.2d at 414. We ex-

pressly did not address “the distinction between an award of damages and back wages.” Id. at

421. It seems that some form of payment of money was assumed to be recoverable if the plain-

tiffs had rendered “particular services,” but we think this turns on the peculiar language of the

17

Cooley, Constitutional Limitations at 121 (7th ed. 1903), quoted in Older v. Super. Ct., 109 P. 478, 482

(1910); accord State v. Rodrigues, 629 P.2d 1111, 1114-15 (Haw. 1981). See also Corum v. Univ. of

N.C., 413 S.E.2d 276, 289 (N.C. 1992) (since the right of freedom of speech is self-executing it must

therefore support a cause of action for damages); Shields, 658 A.2d at 928 (“A constitutional provision

may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be

enjoyed and protected, . . . and it is not self-executing when it merely indicates principles, . . . In short, if

complete in itself, it executes itself.” (quoting Davis v. Burke, 179 U.S. 399, 403 (1900))).

14

Takings Clause, which itself requires “just compensation,” and does not have any more general

implication for constitutional violations.

Cantrell argues that the Court of Appeals recognized an implied private right of action

under Article I, Section 9 of the Indiana Constitution in Lach v. Lake County, 621 N.E.2d 357,

358-60 (Ind. Ct. App. 1993), trans. denied. The Indiana Court of Appeals there held “the free

speech guarantees of the Constitutions of Indiana and the United States demand that a govern-

mental body demonstrate the necessity for squelching speech matters of public concern. . . .

Indiana’s Constitution, statutory provisions, and common law require a finding that Lach’s

statements constituted protected speech.” Id. at 360. But the remedies for violation of that right

were based on the statute governing sheriff’s employees, Indiana Code section 36-8-10-11, and

that decision did not address any implied constitutional remedy.

The federal district courts in Indiana have divided on the broad question of whether a

right of action for damages is implied for violations of the Indiana Constitution. Relying on de-

cisions from the Indiana Court of Appeals, the Northern District of Indiana concluded that a

claim of discriminatory zoning based on animus against drug users could support a damage claim

for violation of the equal privileges and immunities clauses of Article I, Section 23 of the Indiana

Constitution. See Discovery House, Inc. v. Consol. City of Indianapolis, 43 F. Supp. 2d 997,

1004 (N.D. Ind. 1999). One year later, the Southern District of Indiana questioned Discovery

House and certified to this Court the question whether a violation of the search and seizure pro-

visions of Article I, Section 11 of the Indiana Constitution gives rise to a private right of action

for damages. See Turner v. Marion County Sheriff Dep’t, 94 F. Supp. 2d 966, 988 (S.D. Ind.

2000). That case was settled before this Court reached the issue. Three more recent cases in the

Southern District of Indiana have found no civil damage remedy for searches and seizures in vio-

lation of the Indiana Constitution. In each of these cases the plaintiff alleged facts that also con-

stituted violation of the Fourth Amendment. 18

18

See Raines v. Chenoweth, 2004 U.S. Dist. LEXIS 19575, *16 (S.D. Ind. June 29, 2004) (court did not

believe this Court would expansively infer the existence of a monetary damage claim for an alleged abuse

of police power under Article I, Sections 11 and 15 of the Indiana Constitution); Malone v. Becher, 2003

U.S. Dist. LEXIS 15790, *54 (S.D. Ind. Aug. 29, 2003) (“If such a step is to be taken, it will need to be

taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law”); Estate of

O’Bryan v. Town of Sellersburg, 2003 U.S. Dist. LEXIS 13757, *11-12 (S.D. Ind. July 2, 2003) (finding

15

C. Federal Constitutional Torts

It is now established that violations of federal constitutional rights by federal officers

may give rise to civil liability under some circumstances. This implied federal “constitutional

tort” was first recognized by the Supreme Court of the United States in Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case the Supreme

Court upheld an implied civil action for damages against federal officers alleged to have engaged

in a search and seizure in violation of a citizen’s rights under the Fourth Amendment. Specifi-

cally, agents of the Federal Bureau of Narcotics had unlawfully entered the plaintiff’s home and

arrested him without a warrant or probable cause. The Court acknowledged that Congress had

never provided for a private right of action against federal officers, and that “the Fourth Amend-

ment does not in so many words provide for its enforcement by award of money damages for the

consequences of its violation.” Id. at 396. Nevertheless, relying largely on earlier decisions

finding implied private damage actions for violation of various federal statutes, and finding “no

special factors counseling hesitation in the absence of affirmative action by Congress,” the Court

held that the plaintiff was “entitled to recover money damages for any injuries he [had] suffered

as a result of the agents’ violation of the [Fourth] Amendment.” Id. at 396, 397.

Since Bivens, implied federal civil damage remedies for constitutional violations have

been found in few other circumstances. In Davis v. Passman, 442 U.S. 228 (1979), the plaintiff

alleged that her employer, a former United States congressman, discriminated against her on the

basis of sex in violation of the due process clause of the Fifth Amendment. Id. at 230-31. The

Court upheld a right of action chiefly because the plaintiff lacked any other remedy, adopting

language first appearing in Justice Harlan’s concurrence in Bivens: “For Davis, as for Bivens, ‘it

is damages or nothing.’” Id. at 245 (citing Bivens, 403 U.S. at 410 (Harlan, J., concurring in

judgment)).

In Carlson v. Green, 446 U.S. 14 (1980), the plaintiff sued on behalf of the estate of her

deceased son, alleging that he died as a result of violations by federal prison officials of his “due

process, equal protection, and Eighth Amendment” rights. Id. at 16. The Court upheld a right of

no private right of action for damages under the Indiana Constitution against a city and its police officers

when an officer unlawfully entered plaintiff’s residence and shot him several times, because this Court

had never recognized such a claim).

16

action against individual prison officials where the plaintiff’s only alternative was a Federal Tort

Claims Act (FTCA) claim against the United States. Id. at 18-23. First, the Court found it “crys-

tal clear” that Congress intended the FTCA and Bivens to serve as “parallel” and “complemen-

tary” sources of liability. Id. at 20. The Court pointed to the legislative history of the 1974

amendment to the FTCA, which created a cause of action against the United States for the inten-

tional torts of federal law enforcement officials, 28 U.S.C. § 2680(h), which demonstrated the

Congressional assumption that a Bivens claim might be asserted against the individual officials.

The Court noted that a Bivens action might be defeated in two situations: 1) “when defendants

demonstrate ‘special factors counseling hesitation in the absence of affirmative action by Con-

gress,’” and 2) “when defendants show that Congress has provided an alternative remedy which

it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as

equally effective.” Id. at 18-19 (emphasis in original) (quoting Bivens, 403 U.S. at 396, 397, and

Davis, 442 U.S. at 245-47). The Court in Carlson however found that neither situation existed.

The Court reasoned that the threat of suit against the United States under the FTCA was insuffi-

cient to deter the unconstitutional acts of individuals, and concluded that a damage recovery

against individuals was “a more effective deterrent than the FTCA remedy.” Id. at 21.

Carlson also identified other factors which supported a damage claim against individuals

as a deterrent to unlawful action. These included the availability of punitive damages in a

Bivens action contrasted with the statutory prohibition against punitive damages in an FTCA ac-

tion, and the unavailability of a jury trial in an FTCA action. The Court also noted that a claim

under the FTCA was controlled by state law, which was inconsistent with the need for uniform

law governing remedies for violation of constitutional rights. Id. at 21-24. Carlson seems to rep-

resent the high water mark of expansion of implied federal constitutional torts. Since that deci-

sion the Supreme Court has consistently refused to find an implied civil damage remedy for vio-

lation of constitutional rights in other circumstances. In Bush v. Lucas, 462 U.S. 367 (1983), the

plaintiff was an aerospace engineer employed by NASA who had sought review by the Civil

Service Commission of two reassignments. Id. at 369. While his administrative appeals were

pending, he made several public statements that were highly critical of the agency. In response,

a director demoted him, but the review board recommended reinstatement to his former position

with back pay. The plaintiff then brought a civil cause of action for damages against the director

individually. The Supreme Court assumed, without deciding, that the personnel action violated

17

the plaintiff’s First Amendment rights. Id. at 372. The Court also recognized that Congress had

neither provided for such a damage claim nor expressly provided that the administrative remedy

was the only mode of redress. Id. at 372-73. Ultimately, the Court held that the administrative

procedure provided meaningful redress and obviated the need to fashion a new judicially crafted

cause of action. 19 Id. at 378 n.14, 386-88. The Court expressly deferred to Congress’ institu-

tional competence in crafting appropriate relief for aggrieved federal employees as a “special

factor[] counseling hesitation in the creation of a new remedy,” noting that “Congress is in a far

better position than a court to evaluate the impact of a new species of litigation between federal

employees.” Id. at 380, 389. Thus, in Bush the Court retreated from the view expressed in Carl-

son that a claim under the FTCA against the government was an insufficient deterrent and there-

fore a Bivens action against individual officials was appropriate.

The Supreme Court’s reluctance to find implied damage remedies was further reflected in

Chappell v. Wallace, 462 U.S. 296, 305 (1983) (“enlisted military personnel may not maintain a

suit to recover damages from a superior officer for alleged constitutional violations,” even where

the defendants were alleged to have been civilian personnel), and United States v. Stanley, 483

U.S. 669, 684 (1987) (extending Chappell to disallow a Bivens action where a serviceman’s inju-

ries arose out of activity “incident to service”). Similarly, in Schweiker v. Chilicky, 487 U.S.

412 (1988), the Court rejected a damages action against individual government employees al-

leged to have denied the plaintiff due process in handling Social Security claims. In Schweiker,

the Court observed that it had “responded cautiously to suggestions that Bivens remedies be ex-

tended into new contexts.” Id. at 421. The Court explicitly rejected the claim that a Bivens rem-

edy should be implied simply because there is no other means to challenge a constitutional dep-

rivation in federal court: “[t]he absence of statutory relief for a constitutional violation . . . does

19

The Supreme Court described the current state of implied civil damage remedies for constitutional vio-

lations as follows:

The federal courts’ statutory jurisdiction to decide federal questions confers adequate

power to award damages to the victim of a constitutional violation. When Congress pro-

vides an alternative remedy, it may, of course, indicate its intent, by statutory language,

by clear legislative history, or perhaps even by the statutory remedy itself, that the courts’

power should not be exercised. In the absence of such a congressional directive, the fed-

eral courts must make the kind of remedial determination that is appropriate for a com-

mon-law tribunal, paying particular heed, however, to any special factors counseling

hesitation before authoring a new kind of federal litigation.

Bush, 462 U.S. at 378.

18

not by any means necessarily imply that courts should award money damages against the officers

responsible for the violation.” Id. at 421-22. The Court held that administrative remedies may

be sufficient and a legislative decision to forego a damage remedy should be honored. Id. at

425-27. “So long as the plaintiff had an avenue for some redress, bedrock principles of separa-

tion of powers foreclosed judicial imposition of a new substantive liability.” Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 69 (2001) (citing Schweiker, 487 U.S. at 425-27). Thus, congressional

inaction that is not inadvertent is among the “special factors counseling hesitation” to recognize

an implied civil damage remedy. Schweiker, 487 U.S. at 423.

More recently, in FDIC v. Meyer, 510 U.S. 471 (1994) the Court rejected a Bivens claim

against a federal agency, even though Congress had waived sovereign immunity. Meyer empha-

sized that “the purpose of Bivens is to deter the officer,” not the agency. Id. at 485 (emphasis in

original). The Court reasoned that if given the choice, plaintiffs would sue a federal agency in-

stead of an individual who could assert qualified immunity as an affirmative defense, so to allow

a Bivens claim against federal agencies “would mean the evisceration of the Bivens remedy,

rather than its extension.” Id. The Court also noted that “special factors” counseled hesitation in

light of the “potentially enormous financial burden” that agency liability would entail. Id. at

486. 20

D. Constitutional Torts in Other States

In the wake of Bivens, several states have found violations of various state constitutional

rights to support private civil actions for damages, and a roughly equal number have rejected

such an action. 21 Several jurisdictions have followed the approach used by the Bivens line of

cases, and have upheld or rejected an implied civil tort based on the presence or absence of alter-

20

Similarly, in Malesko, the Court refused to extend a Bivens remedy to allow recovery against a private

corporation operating a halfway house under contract with the Bureau of Prisons. 534 U.S. at 71. The

Court emphasized that the purpose of Bivens is to deter individual federal officers from committing con-

stitutional violations and that where Congress has provided for some avenue of relief and remedy that

courts should not create a new remedy. Id. at 70, 73-74. The Court held that since the plaintiff was “not a

plaintiff in search of a remedy as in Bivens and Davis” nor did the plaintiff “seek a cause of action against

an individual officer, otherwise lacking, as in Carlson,” that the plaintiff sought an extension of Bivens

“to contexts that would not advance Bivens’ core purpose of deterring individual officers from engaging

in unconstitutional wrongdoing.” Id. at 74.

21

Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses 7-7 (3d

ed. 2000).

19

native remedial schemes. 22 In most cases where a remedy is upheld, it is against the State or its

agency, not individual officers. At least two states have cited the availability of compensation

under the state constitution’s “takings” clause as supporting damage claims for violation of other

constitutional provisions. 23 Other jurisdictions have rejected constitutional tort claims against

either the State or its officials in their official capacity on the ground of sovereign immunity. 24

Some states have declined to imply a damage remedy for a constitutional tort on the ground of

separation of powers, concluding that recognition of any such claim is up to the legislature. 25

Yet others have found that a constitutional violation is sufficient to supply the breach of duty to

support a common law tort: “there is no need to imply a new right of action because, under the

common law, there already exists an action for damages to remedy violations of constitutional

22

See, e.g., Dick Fischer Dev. No. 2, Inc. v. Dep’t of Admin., 838 P.2d 263, 268 (Alaska 1992) (“We are

. . . hesitant to extend the Bivens decision, and will not allow a claim for damages except in cases of fla-

grant constitutional violations where little or no alternative remedies are available”); Phillips v. Youth

Dev. Program, Inc., 459 N.E.2d 453, 457 (Mass. 1983) (noting in dicta that when there are no other reme-

dies for an alleged dismissal from employment without due process, it is appropriate for the courts to im-

ply one under the state constitution); Corum, 413 S.E.2d at 289 (“in the absence of an adequate state rem-

edy, one whose state constitutional rights have been abridged has a direct claim against the State under

our Constitution”); Provens v. Stark County Bd. of Mental Retardation & Dev. Disabilities, 594 N.E.2d

959, 961-62 (Ohio 1992) (public employees have no right of action against their public employer for al-

leged violations of free speech when there are adequate statutory remedies); Shields, 658 A.2d at 934

(private civil action for damages not available against a state agency and its personnel because an existing

administrative scheme created a reasonably adequate remedy).

23

See, e.g., Widgeon v. E. Shore Hosp. Ctr., 479 A.2d 921, 929 (Md. 1984) (involuntary placement in a

state mental hospital); accord Corum, 413 S.E.2d at 291 (relying on common law remedies).

24

See, e.g., Figueroa v. Hawaii, 604 P.2d 1198, 1207 (Haw. 1979) (the Hawaii Tort Liability Act does not

provide for money damages against the State for violation of state constitution); Rockhouse Mountain

Prop. Owners Ass’n, Inc. v. Conway, 503 A.2d 1385, 1385 (N.H. 1986) (immunity for a town and its of-

ficials in the exercise of a legislative, judicial, or executive planning function involving policy decisions

cuts against the creation of a state cause of action); Livingood v. Meece, 477 N.W.2d 183, 191 (N.D.

1991) (holding that state sovereign immunity bars state constitutional claims against state officials acting

in their official capacities). But see Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 751 (Mich. 1987)

(holding that where it is alleged that the State has violated rights conferred by the Michigan constitution,

governmental immunity is not available in state court action, and a claim for damages against the State

“arising from violation by the state of the Michigan Constitution may be recognized in appropriate

cases”), aff’d, 491 U.S. 58 (1989).

25

See, e.g., Moody v. Hicks, 956 S.W.2d 398, 402 (Mo. Ct. App. 1997) (“Whether such a cause of action

should be permitted [against city police officers] is best left to the discretion of the General Assembly.”);

Provens, 594 N.E.2d at 961-62 (holding that the legislature was the more appropriate body to create

remedies for employment discrimination based on race by a county board); City of Beaumont v. Bouil-

lion, 896 S.W.2d 143, 149 (Tex. 1995) (holding that absent express authority from the legislature, it

would not recognize an implied private cause of action for damages against a city police department, un-

der the free speech and free assembly protections of the Texas Constitution for being “constructively dis-

charged” after holding a press conference to report official misconduct in departmental promotions).

20

rights.” Widgeon v. E. Shore Hosp. Ctr., 479 A.2d 921, 929 (Md. 1984). These decisions have

arisen in a wide variety of contexts. As already observed, we think generalizing on the availabil-

ity of a damage remedy for constitutional violations is not possible, and we confine our response

to wrongful discharge for political activity or affiliation in violation of Section 9.

E. Federal and State Constitutional Torts Compared

We think there are important differences between federal and state constitutions, insofar

as implied damage remedies are concerned. In the case of a federal “constitutional tort” the

question whether the Constitution itself is the source of a civil damage remedy is of paramount

significance because federal court jurisdiction typically turns on whether the claim arises under

federal law. Indeed, in Bivens, the defendants conceded that a state law tort remedy might lie for

the acts of federal officials conducting a search in violation of the Fourth Amendment. 403 U.S.

at 390-91. If the same is true of a violation of a state constitutional right, it is of little practical

significance whether the damage remedy arises under the state Constitution itself or under state

common law tort doctrines. In either case, the claim is cognizable and indisputably arises under

state law.

There is a second difference between federal and state Constitutions that derives from the

structure of our federal system. Ultimately, whether the Federal Constitution itself gives rise to a

damage remedy turns significantly on the need for such a remedy to protect the substantive con-

stitutional right. A principal reason to infer a federal constitutional civil damage remedy is the

need to vindicate the constitutional rights in the absence of other available remedies. In Justice

Harlan’s oft-quoted phrase, Bivens is justified because it is “damages or nothing.” Bivens, 403

U.S. at 410 (concurring in judgment). If state tort law is generally available even if restricted by

the ITCA, it is unnecessary to find a state constitutional tort. Similarly, the other reasons cited in

Bivens and its progeny are largely inapplicable to the implied state constitutional tort. Unlike the

FTCA, a jury trial is available for tort claims against the State, a governmental unit or public of-

ficial. We have no legislative history similar to the 1974 FTCA amendments recognizing an in-

dependent constitutional tort remedy. See 28 U.S.C. § 2680 (h). Indeed, to the extent the Gen-

eral Assembly has acted it suggests the contrary. And a state constitutional claim raises no need

for nationwide uniformity similar to that required by the FTCA.

21

Carlson also identified the unavailability of punitive damages in the FTCA as another

reason to find an implied constitutional tort. 446 U.S. at 22. The ITCA imposes statutory limita-

tions on compensatory damages and, like the FTCA, prohibits an award of punitive damages

against a governmental entity or an employee of a governmental entity acting within the scope of

employment. I.C. § 34-13-3-4(b); cf. 28 U.S.C. § 2674. We do not believe that statutory limits

on damages and the unavailability of punitive damages are unconstitutional constraints on the

damage remedy for wrongful discharge in violation of the Indiana Constitution. Indeed, as ex-

plained in Cheatham v. Pohle, 789 N.E.2d 467, 472-73 (Ind. 2003), as a general proposition we

think the legislature is free to modify or restrict punitive damages as it sees fit. We do not regard

the tort alleged in this case to be one that requires any unique treatment. Of course, if the legisla-

ture believes that a broader remedy is needed to redress that constitutional violation or others,

then it is free to provide one.

Indiana law imposes a number of legislative constraints on civil damages against gov-

ernmental units and individual government officials. The question thus becomes whether any-

thing in the state Constitution precludes application of these restraints to common law claims for

violations of state constitutional rights. By reason of the Supremacy Clause and principles of

federalism, to the extent the Federal Constitution prohibits conduct by state officers, state laws

are ineffective to shield the officers from federal remedies. See Felder v. Casey, 487 U.S. 131,

141 (1988) (42 U.S.C. § 1983); Martinez v. California, 444 U.S. 277, 284 (1980) (“It is clear that

the California immunity statute does not control this claim [42 U.S.C. § 1983] even though the

federal cause of action is being asserted in the state courts.”). Specifically, the ITCA does not

apply to claims based on 42 U.S.C. § 1983. 26 Kellogg, 562 N.E.2d at 688 (citing Felder). But

state law remedies for state constitutional violations are subject to no comparable restriction im-

posed by a superior sovereign.

26

It is now well established that section 1983 creates “a species of tort liability” in favor of persons de-

prived of their federal constitutional rights. See Carey v. Piphus, 435 U.S. 247, 253 (1978) (quoting Im-

bler v. Pachtman, 424 U.S. 409, 417 (1976)). Section 1983 permits recovery against individual officers

and units of local government, but not against the State itself. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (Neither states, nor state officials acting in their official capacities, are “persons”

susceptible to damage suits under section 1983. This precludes a suit in state court against a State for

damages under section 1983); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)

(States are immune from suit under section 1983 in federal court because of the Eleventh Amendment).

22

Unless the state Constitution precludes statutory limitations of remedies for constitutional

violations, the damage remedy is itself subject to those statutory restrictions. We have observed

that assessing punitive damages against a governmental entity places the burden ultimately on

innocent taxpayers. See Brownsburg Comm’ty Sch. Corp., 824 N.E.2d at 345-46. The same is

true of a government employee who acts within the scope of employment because in Indiana that

employee is statutorily entitled to be indemnified by the governmental entity. We are therefore

of the belief that it is well within the power of the legislature to bar any punitive damages for a

claim for wrongful discharge.

We recognize that some contend that full vindication of rights conferred by the Constitu-

tion requires a civil damages remedy as a deterrent to violations. 27 Indeed, Bivens itself pro-

ceeds from that rationale. But Bivens and its progeny proceed from the premise that the deter-

rent effect of personal liability of government officers is needed. The countervailing considera-

tion in the context of employment decisions by public officials is that excessive exposure to civil

liability will discourage innovation and promote stagnant leadership. The ITCA has resolved

that issue in favor of limiting the individual liability of government employees. The Constitution

does not mandate any specific remedy for violations, so balancing of these competing interests is

a matter well within the power of the General Assembly.

IV. Conclusion

In summary, we expressly decline to address whether termination of a public employee

may give rise to a violation of the Indiana Constitution. If a violation of Section 9 can supply the

invasion of a right necessary for a wrongful discharge claim, the civil damages remedy against

the government for a wrongful discharge is limited by the ITCA, and the individual official is

entitled to immunity and indemnity to the extent provided by the ITCA.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

27

See Rosalie Berger Levinson, Recognizing a Damage Remedy to Enforce Indiana’s Bill of Rights, 40

Val. U. L. Rev. 1, 17-18 (2005); Friesen, supra, note 21, at 7-6.

23