I hate it when newspapers use the question marked headline; and here I’m doing it. But I’m doing that because I think the reasoning of a portion of the Court of Appeals decision in Waldrip v. Waldrip, City of Bloomington, and Monroe County is reasonable but its reach perhaps uncertain.
First of all, just a note of approval on the lawyers. I am not familiar with plaintiff’s counsel; but that’s some fine lawyering going on for the defense – Andy Wirick for the City of Bloomington; Jim Stephenson and Ian Stewart for Monroe County.
But I digress. In general, the case had to do with a domestic dispute – husband and wife were at odds. Wife said husband was battering her, husband denied it. Husband was arrested by City police, prosecuted in the county courts, and was acquitted. Adding a wrinkle, Wife was court reporter for the Monroe Circuit Court. I’m simplifying, but husband alleged that there were improprieties in his arrest and prosecution. As to the county, Husband alleged claims of false imprisonment, abuse of process, malicious prosecution, defamation, respondeat superior liability for wife’s actions, and negligent hiring and/or retention of wife.
What caught my eye, in particular, was the discussion of the county’s liability under theories of respondeat superior liability and negligent hiring of wife. Respondeat superior is the theory by which an employer is liable for wrongful acts of an employee acting within the scope of employee’s employment. She was a court reporter for the circuit court. Now, it’s long been clear that trial court judges in Indiana are employees of the state. So, even though the judge is the judge of the Monroe County Circuit court, the judge is a state official. Less clear has been the status of his or her staff. They are under the judge’s control and direction; but they are paid by county and, in most places, I think, treated as county employees — subject to the county’s personnel policies, etc.
The Court of Appeals discussion of the allegations against Monroe County starts at part 3 (p. 24 of the opinion.) The Court of Appeals noted that wife’s claims were properly dismissed because she had only sued the county – which, without more description in the case, necessarily meant the county’s board of commissioners as opposed to, say, the Sheriff.
First, with respect to Angela’s employment as a reporter for the Monroe County Circuit Court, she necessarily was appointed to that position by a judge and likewise was subject to removal by the judge. See I.C. §§ 33-41-1-1, 33-41-1-4 (stating that official circuit court reporters are appointed by judge and subject to removal by judge). Although the courts in any given county are thought of as county courts, and although funded by county government, such courts are actually state courts. Allen County Council v. Allen Circuit Court, 38th Judicial Dist., 549 N.E.2d 364, 365 (Ind. 1990). “County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system . . . .” Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 434 (Ind. Ct. App. 1996) (citing Ind. Const. art. 3, § 1), trans. denied. Therefore, the Monroe County Circuit Court is a state, not county, entity. See id. If certain criteria are met and if the Indiana Supreme Court gives it approval, a trial court may mandate county governments to pay court employees a salary demanded by the court. Allen County Council, 549 N.E.2d at 367. This is further indication that state trial court employees are not subject to control by the county executive. Given Angela’s employment by the Monroe County Circuit Court, a state entity, at the discretion of the Circuit Court judge, she was not subject to hiring, supervision, or firing by Monroe County and its Board of Commissioners. All claims against Monroe County related to alleged vicarious liability for Angela’s actions, or her hiring and retention, were properly dismissed.5 See Delk v. Board of Comm’rs of Delaware County, 503 N.E.2d 436, 440 (Ind. Ct. App. 1987) (holding county commissioners could not be held vicariously liable for actions of county sheriff, which was a separate constitutional office not subject to control by the commissioners).
(Emphasis added) So, it appears that if you want relief against a court’s employee, you have to sue the State as opposed to the county. Husband found himself having similar problems with his allegations against the Sheriff and the Prosecutor. The Prosecutor is also a state actor (this is not new law). But, even his allegations concerning his incarceration – false arrest and imprisonment – did not state a claim against the county. While it’s true that a county’s board of commissioners has a duty to maintain a jail, Husband’s claim concerned the operation of the jail – a duty of the Sheriff. Because the Sheriff is a constitutionally created office separate from the county executive, those claims were dismissed as well.
The stuff about the Prosecutor and Sheriff was not too surprising to me; but the holding as it pertained to the court reporter was a clearer statement than I had seen before on what I had regarded as a muddy area of the law. (See, for example, this prior post of mine on judicial mandates.)
I do not like the Three-Card Monty governmental entities play when the matter is tort liability. When a party resorts to the Final Theory of Torts—nothing that has to do with the “end of days” but the theory I used on torts finals in which the student really is supposed to find a theory upon which to base liability against everyone (named, curiously, Adams, Baker, Charles, etc., in alphabetical order)—one risks sanctions under 34-1-52-1 for bringing a frivolous action.
I’m not a huge fan of vicarious liability generally. When an individual hurts you, you generally know who that individual is, and have no problem suing them. Things get a little murkier when, what you’re really after, is a pot of money more or less associated with the individual who hurt you.
I mean, I know why we have theories of vicarious liability like respondeat superior. Someone has caused harm. It seems unfair to make the injured party bear the cost of the loss they sustained through little or no fault of their own. The individual who is directly at fault doesn’t have any money. So, you make an employer foot the bill under a theory that the employee caused the damage while acting in the scope of their employment; even though “scope of employment” can be awfully broad at times.
Not that I have a better solution, even were someone to ask me for one. In this case though, it matters who you sue and who you serve notice on — you should at least notify the person you expect to cut the check that you want them to do so. I can definitely see why, in this case, the Board of Commissioners would balk at paying for the wrongdoing of an individual whose behavior it was without authority to control.
I am DEFINITELY not a fan of this ruling (at least as to the claims against Monroe County). Unlike Judges and Sheriffs, the Reporter’s salary is paid by county funds. As such, it would seem she is a County employee. Yes, she does report to a “state” official, (one that is elected by county officials), but she is subject to the employee handbook and can be terminated by the Commissioners (or the Council) at any time. To say that she is a state employee simply because judges have this (extremely rarely used) mandate procedure is contrary to reality.
Let me put it this way…. all unelected employees are subject to the same county employee manuals, except for court staff, as of now. It makes no sense to create and further this exception.
I’m not sure if your analysis is accurate. Check out IC 34-41-1. The reporter is appointed by and can be terminated by the judge. No provision is in that statute saying that the Commissioners have to be consulted in these decisions. And, yes, the court reporters are paid out of the county budget, but as the Court of Appeals pointed out, the courts can issue mandates compelling higher salaries if the courts find those salaries inadequate.
What would happen if the court reporter violated the county’s employee handbook and the Commissioners tried to terminate the court reporter or dock her salary over the objection of the trial court? Good question.
There might be a bigger game afoot here. Over the years, it seems to me, there has been an effort by the Indiana Supreme Court to rationalize the operation of the trial courts and make the judiciary a more unitary sort of entity. Court staff has (in my opinion) long been in a sort of limbo – sort of county employees; but sort of judicial employees. Part of the rationalization of trial courts into a unitary judiciary might involve getting them out of the county employee category altogether. To be clear, I’m just speculating on this.
In any event, the rationale for imposing liability on an employer for the act of the employee is premised on the employer’s ability to control those actions. Who has more authority over a court reporter – the county board of commissioners or the state judge? Based on what I know, I’d contend the latter. But that could hinge on what employment related standard she violated — if she parked negligently in the county parking garage, causing injury somehow, maybe that’s a Board of Commissioner issue – but if it’s the wrongful performance of court reporting functions, that’s more of a state court issue.
Another problem you sometimes get is with Plaintiffs just sort of broadly alleging negligence – not specifying what, exactly, someone did wrong because they want to go fishing for awhile and make up a theory of wrongful behavior later. Generally, that’s good strategy. But, if the proper defendant depends on the theory of wrongdoing, that strategy can cause you problems.
I understand and agree with much of your analysis. The only part I contend is the top paragraph. While the judge may be the supervisor, the county is the payor. The County Council can refuse to fund that employee’s line item if they chose to do so. Granted, the Judge can try to mandate if they chose to, but that is not a normal procedure. They are also the administrator of the insurance and other benefits. There is some county control here, and this is a partnership between state and local, much like Medicaid is between state and federal. I would rather have both entities considered the employer for this purpose.
Regarding handbooks:
http://indianacourts.us/times/2011/02/employee-handbooks-neither-fish-nor-fowl/
Another interesting document concerning the applicability of county personnel policies to these county-based, quasi-state employees is Indiana Attorney General Op. 2001-11 (pdf) concerning the applicability of county personnel rules to deputy prosecutors.
In my experience (as Co. attorney in Starke County) court staff are not under the supervision of the commissioners. It’s true that they are paid through the Auditor’s office, and therefore are, in that sense, county employees. But the judge has independent control over court staff. It’s not merely a question of ‘state or county employee’ it’s also a separation of powers issue. Consider the effect on the independence of the judiciary if this weren’t the case. So I think the ruling is correct, but would suggest legislation to clarify the proper way to perfect a lawsuit like the one in question.
In Starke County, what happens if court staff performs an action that requires termination (an employee allegedly showed up drunk recently in my county), but the judge doesn’t want to do it? What happens if court staff wants to sell back vacation time (as occurs frequently in my county as well)? These are items that are covered in our employee manual. Does the manual apply to court staff?
Good questions. For starters, one hope judges will manage their staffs effectively. My first impression (without resorting to research) is that discipline of an allegedly intoxicated employee would be within the control of the judge, but the vacation time would be controlled by the policies set out in the employee handbook, as a form of compensation. If a judge believes compensation is insufficient or impinging on judicial independence, then the judge can file a mandate — but the council can defend saying funds are not available. It is a fine and muddy line, I’m afraid. Our handbooks come in “flavors” — including one for judicial staff — to (hopefully) make it easier for everybody to understand these issues.
Kernan-Shepard Recommendation Number 7:
Transfer the responsibility for all funding of the state’s trial court system to the state.
The court is making the decision based upon the context of the dispute. Had to dispute involve compensation, the brewing may have gone the other way since the county is the entity responsible for compensation this person. However, since the speed focused upon her hiring it would appear best to hold the state responsible. take a look at our brief on the issue of state legislators as state employees for compensation purposes.
Apologize, poor voice recognition. Speed should read, dispute.
I assume “brewing” would mean “ruling.”
I’m mostly interested in the case for the situations where a third party is suing over the negligence of the court staff. Who is the superior that’s bound to respondeat? This ruling suggests that it’s the State where I would’ve guessed it to be the County not too many years ago.
Also raises the question, is it the Attorney General who should be defending against the claim?