Indiana Law Review


IV. Constitutional Law

Jeffrey A. Been*

Sheryl A. Donnella**

A. First Amendment

1. School Mail Systems.—In Perry Education Association v. Perry
Local Educators' Association,

1

a sharply divided
2 United States Supreme

Court held that the first amendment 3 was not violated when a union,

which had been elected the exclusive bargaining representative for public

schoolteachers in Perry Township (PEA), was granted access to the in-

terschool mail system while access was denied to a rival union (PLEA).
4

The majority categorized the school mail facilities as "[p]ublic property

which is not by tradition or designation a forum for public

communication." 5 Therefore, the majority held, the state has the power

to reserve the use of its property for its intended purposes as long as

the regulation on speech is reasonable and is not a form of viewpoint

discrimination.
6 The dissenters rejected the majority's "public forum" ap-

proach, finding the crucial issue to be that of equal access.
7 They would

have struck down the restricted-access policy as an impermissible form of

viewpoint discrimination.
8

The majority of the Court rejected arguments by PLEA, the rival
union, that the school system had created, by granting access to groups

*Associate Editor of the Indiana Law Review.
**Associate Editor of the Indiana Law Review.
'103 S. Ct. 948 (1983).

Justices Brennan, Marshall, Powell, and Stevens joined, dissenting. Id. at 960 (Bren-

nan, J., dissenting).
3 "Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the Government for a redress of

grievances." U.S. Const, amend. I. The first amendment applies to the states through the

fourteenth amendment. Bridges v. California, 314 U.S. 252 (1941); Hague v. CIO, 307 U.S.

496 (1939); DeJonge v. Oregon, 299 U.S. 353 (1937); Near v. Minnesota, 283 U.S. 697

(1931); Stromberg v. California, 283 U.S. 359 (1931); Fiske v. Kansas, 274 U.S. 380 (1927);

Gitlow v. New York, 268 U.S. 652 (1925).
4
103 S. Ct. at 958-59.

5
Id. at 955. The Court described three types of public property: (1) places which

have by long tradition or government fiat been dedicated to assembly and debate, such

as streets and parks, (2) public property which the state has opened up for use as a place

for expressive activity, such as university meeting facilities, and (3) public property which

is not by tradition or designation a public forum, such as military installations. Id. at 954-55.
6
Id. at 955 (citing United States Postal Serv. v. Greenburgh Civic Ass'n, 453 U.S.

114, 131 n.7 (1981)).
7

103 S. Ct. at 961 (Brennan, J., dissenting).

'Id. at 969.

79



80 INDIANA LAW REVIEW [Vol. 17:79

such as the Cub Scouts and YMCA, a "limited public forum" from which
it could not later exclude PLEA. Any forum which might have been
created by such grants of access, the Court stated, would have been limited

to groups of "interest and educational relevance to students" and teachers

and would not thereby necessitate a grant of access to a union concerned

only with the terms of teacher employment.
9

Nor did a prior grant of access to PLEA prohibit later exclusion of
the union. When the schoolteachers elected PEA as their exclusive bargain-
ing representative, the status of PLEA and PEA changed. No longer did
PLEA represent any of the teachers in the school system, Thus, the ex-
clusion of PLEA was a result of the union's changed status rather than
an attempt to discriminate against any viewpoint of the union.

10 The Court

emphasized that in a non-public forum the state may restrict access on
the basis of subject matter and speaker identity if such restrictions "are

reasonable in light of the purpose which the forum at issue serves.""

Because the purpose of the internal mail system is "to facilitate internal

communication of school related matters to teachers," 12 the Court found

it reasonable for the school board to limit access to PEA in order for
the union to fulfill its official responsibilities as bargaining representative

for the teachers, while permitting the rival union access only to alter-

native channels of communication such as bulletin boards, meeting

facilities, and the U.S. Postal Service. 13

The arguments of PLEA fared no better under an equal protection
analysis. Because the Court found that PLEA had no fundamental right
of access, it subjected the school's restrictions only to a "rational basis"

level of scrutiny. 14 Once again, the decision to restrict access to the ex-

clusive bargaining representative was found to rationally further a

legitimate state purpose. 15

Justice Brennan, joined by Justices Marshall, Powell, and Stevens,

dissented. In the view of the four dissenting justices, the claim presented

was an "equal access" claim which should not turn on whether the school

mail system was a public forum. 16 Distinguishing a series of cases

upholding content-based exclusions on government property, 17 Justice Bren-

9
Id. at 956.

u
'Id. at 956-57.

"Id. at 957 (citing U.S. Postal Serv. v. Greenburgh Civic Ass'n, 453 U.S. 114 (1981);

Greer v. Spock, 424 U.S. 828 (1976); Adderley v. Florida, 385 U.S. 39 (1966)).

Id. at 956.

"Id. at 958-59.

"Id. at 959-60.

"Id. at 960.
,6
Id. at 961 (Brennan, J., dissenting).

i7
Id. at 963 (citing Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977)

(prison could regulate union organizing activities); Greer v. Spock, 424 U.S. 828 (1976)

(military can ban partisan political demonstrations on military bases); Lehman v. City

of Shaker Heights, 418 U.S. 298 (1974)(city transit system could prohibit political advertis-

ing on buses)).



1 984] SUR VE Y—CONSTITUTIONAL LAW 81

nan described previous exclusions as evenhanded and viewpoint neutral. 1 "

In contrast, Justice Brennan found that the schools had opened their mail

system for discussion of the subject of labor relations in the schools, and

by restricting access later to the exclusive bargaining representative the

schools were engaging in impermissible viewpoint discrimination. 19

Justice Brennan approved the equal protection analysis of the United

States Court of Appeals for the Seventh Circuit, subjecting the exclusionary

access policy to strict scrutiny because viewpoint discrimination implicates

core first amendment values. 20 Justice Brennan found no reason for deny-

ing access to other labor groups, dismissing the state's asserted interest

in preserving labor peace because there was no evidence to support the

contention that granting access to rival labor organizations would pro-

mote labor instability. 21 The failure of the school board to establish even

a substantial state interest in limiting access to the school mail system

would, in the opinion of the four dissenting justices, render the policy

constitutionally infirm.
22

2. Student Demonstrations.—The first amendment rights of high
school students were seriously curtailed in Dodd v. Rambis. 22, On Wednes-
day, September 30, 1981, fifty-four students of Brazil Senior High School

protested school discipline procedures by staging a walkout from classes.

They gathered across the street from the school, within the sight and hear-

ing of persons inside the building. That evening, five students met to

discuss the walkout and drafted a leaflet calling for a meeting of students

at a local restaurant on Thursday evening and proposing another walkout

at 9:00 a.m. on Friday. The leaflet also advised participants in the pro-

posed walkout to stay off school property. These five students distributed

the leaflets at school on Thursday, the day after the first walkout. That

afternoon, all five students were suspended and, after a hearing, were

later expelled for the remainder of the semester 24 for violations of In-

diana Code sections 20-8.1-5-4(a) and (l), 25 and Brazil Senior High School
Student Handbook, page 12, section II, paragraph I, which prohibits

"[a]ny conduct which causes or which creates a reasonable likelihood that

it will cause a disruption or material interference with any school func-

tion ... or that interferes or [sic] a reasonable likelihood that it will
interfere with the health, safety, or wellbeing or the rights of other

students."
26 The suspensions and expulsions were based on the action of

,8
103 S. Ct. at 963 (Brennan, J., dissenting).

19
Id. at 965-66.

20
Id. at 966.

21
Id. at 968.

22
Id. at 969.

23
535 F. Supp. 23 (S.D. Ind. 1981).

"Id. at 25-26.
25 Ind. Code § 20-8.1-5-4(a), (1) (1982).
26
535 F. Supp. at 26.



82 INDIANA LAW REVIEW [Vol. 17:79

the students in distributing the leaflet and on the objectionable content

of the leaflet in advocating the student walkout.
27

The "material interference" language of the Student Handbook

substantially parallels the language of the Supreme Court in Tinker v.

Des Moines Independent Community School District™ in which the Court

struck down a school prohibition against the wearing of black armbands

in protest of the Vietnam War. The Tinker standard permits prohibition

or regulation of student expression where school officials can demonstrate

facts which could reasonably have led them to forecast substantial disrup-

tion of or material interference with school activities.
29 This standard was

utilized by the United States District Court for the Southern District of

Indiana to review the actions of Brazil Senior High School officials.
30

The court held that the principal could reasonably have forecast material

disruption because of the previous day's walkout accompained by a general

atmosphere of excitement in the school, and because of the specific date,

time, and location of another walkout proposed in the leaflets.
31

The Brazil Senior High School principal made no effort to evaluate

21
ld. at 28.

28
393 U.S. 503 (1969).

29
Id. at 513-14.

30535 F. Supp. at 27-31.
il
Id. at 29-30. The deferential approach taken by the court in sustaining the actions

of the school officials is markedly different from that of the Fifth Circuit Court of Appeals

in Butts v. Dallas Indep. School Dist., 436 F.2d 728 (5th Cir. 1971). In Butts, the court

reversed the suspension of students wearing black armbands despite much stronger evidence
of potential disruption. The students involved were participating in a nationwide Vietnam

moratorium which had caused Dallas police officals to predict trouble and call schools in

order to offer police assistance. Disruptive sit-ins had already occurred in nearby communities;

a non-student had phoned in a bomb threat; and students of a differing viewpoint were
wearing white armbands and had already clashed with participants in a student demonstra-

tion across the street from the school. Id. at 729-30. Nevertheless, the court found no sup-

port for the school officials' contention that they could reasonably have forecast a material

disruption. The court interpreted Tinker to be a declaration of

a constitutional right which school authorities must nurture and protect, not ex-

tinguish, unless they find the circumstances allow them no practical alternative.

As to the existence of such circumstances, they are the judges, and if within the

range where reasonable minds may differ, their decisions will govern. But there
must be some inquiry, and establishment of substantial fact, to buttress the

determination.

Id. at 732 (emphasis added).

Because the Dallas school administrators had not conferred with student leaders regard-

ing their intentions and had not utilized school machinery for the voicing of opinions, the

court held that the mere ex cathedra pronouncement of the superintendent, even in light

of the volatile environment, would not suffice to meet the requirment of Tinker. Id. There

is support for this approach in the language of Tinker itself. "Clearly, the prohibition of

expression of one particular opinion, at least without evidence that it is necessary to avoid

material and substantial interference with schoolwork or discipline, is not constitutionally

permissible." 393 U.S. at 511 (emphasis added). Thus, the prohibition of expression would

satisfy the Constitution only if it were necessary, rather than merely expedient.



1984] SURVEY—CONSTITUTIONAL LAW 83

the actual threat posed by the leaflets. The District Court accepted the

prediction of the principal based almost exclusively on the experience of

the first walkout. The court could have required some showing of an in-

quiry such as giving the students an opportunity to present grievances

within the school environment, attending the proposed Thursday evening

meeting to determine student interest in a second walkout, or at least

making some inquiry into the plans for the walkout. 32 A boycott of classes
would not necessarily be disruptive to the school. No mention is made
of whether the 9:00 walkout time 33 was during classes or during a passing

period, which would tend to minimize disruption. In addition, the ad-

monition in the leaflet to stay off school property 34 could have been seen

as evidence of an attempt not to disrupt classes. Such inquiries would

have enabled the principal to make an informed prediction as to the ac-
tual likelihood of material disruption from the proposed walkout. 35 In-

stead, the district court accepted the prediction made only on the basis
of the previous walkout and the bare content of the leaflet. 36

In sustaining the expulsion as an acceptable form of discipline, rather

than limiting the school's remedy to a restraint on the students' speech,

the district court discussed the case of Karp v. Becken, 37 permitting

discipline where school officials can point to a violation of a school rule,

such as the rule in the Brazil Senior High School Student Handbook. 38

However, the Ninth Circuit Court of Appeals invalidated the entire suspen-

sion in Karp because there was no way to determine what part of the
suspension was for protected activities. 39 In Dodd, the district court ex-

plicitly found that the discipline was imposed both for the leaflet distribu-

te Butts, 436 F.2d at 732.
33
535 F. Supp at 25.

i4
Id.

35The Court in Tinker recognized that

[a]ny word spoken . . . that deviates from the views of another person may start
an argument or cause a disturbance. But our Constitution says we must take this
risk ....

. . . [SJchool officials . . . must be able to show that [their] action was caused

by something more than a mere desire to avoid the discomfort and unpleasant-
ness that always accompany an unpopular viewpoint.

393 U.S at 508-09 (citation omitted).
36536 F. Supp. at 29. In the statement of "facts offered by the defendants as justify-

ing a reasonable forecast of material disruption," id., reference is made to an "investiga-
tion" by the principal which helped lead him to his forecast. However, in the court's find-

ing of facts, the only investigation referred to is one which led the principal to identify

two of the plaintiffs as the students responsible for distributing the leaflets. Id. at 26. Any
further "investigation" by the principal appears to have been limited to a discussion of

the incident with the students involved. See id.
37477 F.2d 171 (9th Cir. 1973).
n
Id. at 176, cited in Dodd, 535 F. Supp at 30.

39477 F.2d at 176.



84 INDIANA LAW REVIEW [Vol. 17:79

tion and for the objectionable content of the leaflet. 40 Rather than in-

validating the expulsions because they were based in part upon the students'
protected right to express an unpopular point of view, 41 the court affirmed

the expulsions as being within the discretion of school officials, once the

Tinker standard was met, and within the range of punishment authorized

by statute. 42

The court did, at least, express a warning to school officials not to

prohibit constitutionally protected activity, emphasizing the significance

of the first walkout in the court's decision. 43 However, this warning may
be of little effect in light of the court's deference to school officials and

the court's willingness to uphold discipline imposed even when protected
speech is implicated.

3. Juror Interviews—The interplay between the first amendment
rights of freedom of speech and freedom of the press, and judicial author-

ity under Article III of the Constitution of the United States
44 was carefully

analyzed in United States v. Franklin, 45 a decision in which Judge Sharp

of the United States District Court for the Northern District of Indiana

modified his previous order enjoining all post-trial interrogation of jurors46

in the trial of Joseph Franklin, acquitted of violating the civil rights of

National Urban League President Vernon Jordan. 47

In re-examining the propriety of that order with regard to the press,

Judge Sharp acknowledged the widespread judicial concern with the prob-

lem of post-verdict inquiry into jury deliberations, which has resulted in

40
535 F. Supp. at 28.

"See Ind. Code § 20-8.1-5-4(a) (1982). After enumerating some illustrations of the
sort of student conduct that constitutes grounds for expulsion or suspension, subsection

(a) states: "This subsection shall not ... be construed to make any particular student
conduct a ground for expulsion where such conduct is constitutionally protected as an exer-
cise of free speech or assembly or other under the Constitution of Indiana or the United

States." Id. The Dodd court might have eased its apparent doubts about the propriety of
the punishment imposed in this case by interpreting the above-quoted language as instruc-

tion from the legislature to resolve doubtful cases in favor of protecting the first amend-
ment right in question. See 535 F. Supp. at 30-31. The court, however, apparently did
not view the plaintiff's actions as being "constitutionally protected." See id.

42
535 F. Supp. at 30-31.

43M at 31.
44
U.S. Const, art. Ill, §§ 1-2.

45
546 F. Supp. 1133 (N.D. Ind. 1982).

* 6
Id. at 1136.

47
After the jury had returned a verdict of not guilty on the night of August 17, 1982,

Judge Sharp discharged them with these words: "It is the normal practice of this Court
to enjoin those who are participants in this trial, [and] all others, from attempting to inter-
rogate you about the contents of your deliberations or the reasons for your verdict. And
that is now done in this case." Id. at 1136. A group of news organizations petitioned the
court to reconsider and vacate the injunction. Judge Sharp set a hearing date for September
9, 1982, but upon the petitioner-news organizations' "Emergency Petition for Writ of Man-
damus" filed on August 23 in the Seventh Circuit Court' of Appeals, Judge Sharp was
ordered to render a judgment on the petitioner's motion for reconsideration of his injunc-
tion against juror interviews by August 30, 1982. Id. at 1136-37.



1 984] SUR VEY—CONSTITUTIONA L LA W 85

substantial authority both upholding and denying the power of the courts

to enjoin such interrogations.
48 The particular circumstances surrounding

post-verdict interrogation of jurors appear to be a significant factor in

determining the power of the court to enjoin such questioning. For ex-

ample, the decision in Franklin is specifically limited by the fact that this

defendant was acquitted. 49 In addition, counsel for the petitioners explicitly

conceded the court's power to permanently enjoin the parties and counsel

from interrogating jurors and to enjoin any interrogation on the premises

of the court house.
50

In a similar vein, the news-gathering rights of the

press may be restrained in order to ensure a fair trial 51 or to protect jurors
from harassment. 52

Balancing the competing interests of the jurors, the press, and the

courts, Judge Sharp conceded that his initial order might arguably have

infringed on first amendment rights. He permitted public and press inter-
views with the jurors so long as the jurors desired to be interviewed and

so long as the interviewing did not constitute harassment of the jurors. 53

In so doing, Judge Sharp recognized the persuasive authority of United

States v. Sherman, 54 involving a similar injunction against juror interroga-

tion; at the same time, Judge Sharp emphasized that Sherman is not bind-

ing precedent in the Seventh Circuit. 55 In overturning the injunction of

the trial court, the Ninth Circuit Court of Appeals in Sherman stated,

"The government in order to sustain the order must show that the activ-
ity restrained poses a clear and present danger or a serious and imminent

threat to a protected competing interest." 56 This reasoning would support

Judge Sharp's reservation of the authority to "handle" any harassing in-

terrogation of jurors. 57 Sound policy reasons support prevention of juror

harassment: jurors may be called back for other cases, and they may be
influenced in their deliberations by anticipated questioning. 58 Where in-

terrogation of jurors rises to the level of harassment, the restraint of such

interrogation may be justified under the Sherman rationale as necessary

* % See id. at 1139-44 and cases cited therein.

"Id. at 1138.
50
Id. at 1141-42.

"Id. at 1143 (citing Branzburg v. Hayes, 408 U.S. 665 (1972)).
52546 F. Supp. at 1140-41 (citing Bryson v. United States, 238 F.2d 657 (9th Or.

1956); Rakes v. United States, 169 F.2d 739 (4th Cir. 1948)).
53546 F. Supp. at 1145.
54
581 F.2d 1358 (9th Cir. 1978). The Sherman decision was also cited with approval

in In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982).
55546 F. Supp. at 1144.
56581 F.2d at 1361.
57 "Any conduct by anyone which constitutes harassment of any member of this jury

panel in regard to such interviews will be handled appropriately by this Court." 546 F.

Supp. at 1145.

"See id. at 1140 (citing Rakes v. United States, 169 F.2d 739 (4th Cir. 1948)). For

a comprehensive discussion of the policy issues involved in juror interviews, see Note, Public

Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886 (1983).



86 INDIANA LAW REVIEW [Vol. 17:79

to prevent a "serious and imminent threat" to the government's "com-
peting interest" in the orderly administration of justice.

The order of Judge Sharp, as modified, also satisfies the requirements

expressed by the United States Supreme Court in Globe Newspaper Co.
v. Superior Court. 59 In striking down a Massachusetts statute barring press
and public access to criminal sex offense trials during the testimony of

victims under age eighteen, the Court stated, "Where . . . the State at-
tempts to deny the right of access in order to inhibit the disclosure of

sensitive information, it must be shown that the denial is necessitated by
a compelling governmental interest, and is narrowly tailored to serve that

interest."
60 Although the Court emphasized the narrowness of its deci-

sion in Globe Newspapers, in light of the mandatory nature of the

Massachusetts rule, 61 Judge Sharp's modified order would probably com-

ply with this test in that it prohibited access to jurors only to the extent

that the access would tend to obstruct the orderly administration of justice.

4. Provocation/Fighting Words.—In overturning a conviction under
the Indiana provocation statute, 62 the Indiana Court of Appeals in Evans

v. State
63

applied the rationales of Gooding v. Wilson, 64 and Chaplinsky

v. New Hampshire65 to include an "immediacy" requirement in the In-
diana statute. 66 The defendant in Evans had been convicted of provoca-

tion after she called a police officer "fucking pig" or "fucking prick" 67

while she was walking down a street, and the police officer was driving
in the opposite direction with his car window rolled up. Believing the
woman might need help, the officer then stopped his vehicle, backed up,
got out, and arrested Evans for provocation: "recklessly, knowingly, or

intentionally engaging] in conduct that is likely to provoke a reasonable

man to commit battery . . . ." 68

The court agreed with Evans that the statute must require the show-

ing of an immediacy of a battery in order not to be unconstitutionally

59457 U.S. 5% (1982).
60
Id. at 606-07. See also Press-Enterprise Co. v. Superior Court of California, River-

side County, 104 S. Ct. 819 (1984). The Court applied the Globe standard in determining

the propriety of closed voir dire proceedings. Id. at 824. In holding that these particular

proceedings should not have been closed, the Court balanced juror privacy interests against

the need for openness in judicial proceedings. Id. at 824-26.
6, 457 U.S. at 611 n.27.
62 Ind. Code § 35-42-2-3 (1982). See infra text accompanying note 68.
63434 N.E.2d 940 (Ind. Ct. App. 1982).
64405 U.S. 518 (1972) (Georgia statute prohibiting "opprobrious words or abusive

language, tending to cause a breach of the peace" held unconstitutionally overbroad because

encompassed more than fighting words).
65 315 U.S. 568, 572 (1942)(first amendment does not protect "'fighting' words—those

which by their very utterance inflict injury or tend to incite an immediate breach of the

peace").
66434 N.E.2d at 942-43.
67 "[The officer] testified that he saw Evans lean towards the street where he partially

heard her say and partially read her lips to say 'fucking pig' or 'fucking prick.'" Id. at 941.
68 Ind. Code § 35-42-2-3 (1982).



1 984] SUR VEY—CONSTITUTIONA L LA W 87

overbroad. 69 In reviewing the facts of this case, the court found no show-

ing that the police officer had the immediate capacity to commit a bat-
tery against Evans. The court accorded special weight to the fact that
these words were spoken to a police officer, who should be able to con-
trol his actions while on duty. 70 This concept that words may not be
"fighting words" only because they are spoken to a policeman finds sup-

port in the concurring opinion of Justice Powell in Lewis v. City of New
Orleans.

11 "[W]ords may or may not be 'fighting words,' depending upon
the circumstances of their utterance. . . . [A] properly trained officer may
reasonably be expected to 'exercise a higher degree of restraint' than the

average citizen, and thus be less likely to respond belligerently to 'fighting

words.'
" 72 Thus, the Indiana court upheld the constitutionality of the pro-

vocation statute in Evans by narrowly interpreting it so as to require a
showing that the words uttered are likely to immediately provoke a bat-

tery, but overturned this conviction because the circumstances did not

demonstrate a likelihood that a policeman would be provoked to commit
battery under the circumstances presented in this case. 73

B. Fourth Amendment—Search and Seizure
1. The Automobile Exception.—In Fyock v. State ™ the Indiana

Supreme Court vacated the decision of the Indiana Court of Appeals and

affirmed the trial court's decision that a search of the passenger compart-

69434 N.E.2d at 942-43.
10
Id. at 943 n.2.

71 415 U.S. 130 (1974).
12
Id. at 135 (Powell, J., concurring).

73
In another first amendment case of note, the United States District Court for the

Northern District of Indiana issued a preliminary injunction prohibiting the city of Fort

Wayne from conditioning continued employment of a municipal worker upon payment of
union dues or an equivalent "agency fee." Perry v. City of Fort Wayne, 542 F. Supp.

268, 275 (N.D. Ind. 1982). The court issued the injunction after finding a reasonable likelihood

that the plaintiff would succeed on the merits of her claim that an "agency shop agree-

ment" was unconstitutional on its face as a violation of her first amendment rights, and

after finding it unlikely that the defendant-city would be able to show a sufficiently strong

governmental interest to justify the infringement of those rights. Id. at 273. Although the

court made repeated reference to "First Amendment rights" and "First Amendment viola-
tions," it never identified precisely which of the plaintiff's first amendment rights were

violated, beyond the statement that plaintiff's persistent protests against "the use of her

fees for political purposes show that she had her First Amendment rights in mind when
she refused to pay." Id. at 272. However, the court's reliance on Abood v. Detroit Board
of Education, 431 U.S. 209 (1977), makes it apparent that the first amendment right in

question is "an employee's freedom to associate for the advancement of ideas, or to refrain

from doing so, as he sees fit." Id. at 222; see id. at 233-35. For a more complete discussion

of the City of Ft. Wayne case, see Archer, Labor Law, 1983 Survey of Recent Developments

in Indiana Law, 17 Ind. L. Rev. 245, 247 (1984).
74436 N.E.2d 1089 (Ind. 1982). For a further discussion of this case, see Johnson,

Criminal Law and Procedure, 1983 Survey of Recent Developments in Indiana Law, 17
Ind. L. Rev. 115, 131 (1984).



88 INDIANA LAW REVIEW [Vol. 17:79

ment of an automobile is permissable as a contemporaneous incident of

a lawful custodial arrest of the occupant of that automobile if initially

there was probable cause to effect a warrantless arrest of the occupant. 75

The warrantless search occurred after an off-duty police officer ob-

served a subject he was watching pass a "sock type thing" to Fyock

through the driver's side window of a car in which Fyock and other oc-

cupants were observed smoking a cigarette. The officer smelled the odor

of burning marijuana coming from the car. After the officer identified

himself, Fyock started the car, and the subject and the other occupants

of the car fled on foot. Fyock stopped the car when the officer drew

his gun, then was pulled from the car, patted down, and handcuffed

while police officers searched a sweatsock lying on the rear passenger floor

of the car.
76 The search revealed tablets of methaqualone inside the sock;

Fyock was subsequently convicted upon that evidence of possession of

a controlled substance.
77

The Indiana Court of Appeals reversed the conviction holding that

although there might have been probable cause to effect the warrantless

search of Fyock's person, the search and seizure of the sock on the rear

floor of the car violated his fourth amendment rights. 78 The search was
not within the scope of a search incident to arrest, 79 and, further, the

search could not be justified under the automobile exception as most

recently defined by New York v. Belton, 80 without creating constitutional
issues of retroactivity and ex post facto application. 81

The United States Supreme Court in Belton permitted a search of

the passenger compartment of an automobile as a contemporaneous inci-

dent of arrest. 82 A container within the passenger compartment may also
be searched "whether it is open or closed, since the justificiation for the

search is not that the arrestee has no privacy interest in the container,

but that the lawful custodial arrest justifies the infringement of any privacy

interest the arrestee may have." 83

The crucial issue for the courts was whether Be/ton's holding should

be applied "to a search conducted over a year earlier in light of the fact

75
Id. at 1093.

lb
Id. at 1092-93. Note that as a container search it was a search within a search. Defen-

dant did not contest the first search, that of the person and the automobile, but he did

object to the second search when the officer turned the sock inside out thus revealing the
drugs. Id. at 1093-94.

11
Id. at 1091.

78
428 N.E.2d 58, 64 (Ind. Ct. App. 1981).

19
Id. See Chimel v. California, 395 U.S. 752 (1969) (a search incident to arrest allows

for a search of the arrestee's person and the area within his immediate control). But cf.
Johnson v. State, 413 N.E.2d 335 (Ind. Ct. App. 1980)(search of defendant's purse without

a warrant was improper fifteen minutes after the defendant had been arrested and restrained).
»°453 U.S. 454 (1981).
8, 428 N.E.2d at 63.
82453 U.S. at 462-63.

"Id. at 461.



1 984] SUR VEY—CONSTITUTIONA L LA W 89

that the Indiana Supreme Court, previous to Belton, had assigned a more

narrow scope to similar searches." 84 The Indiana Court of Appeals held

that to give Belton retroactive application without plain and unequivocal

direction by the United States Supreme Court would violate the spirit of

ex post facto limitation.
85 Hence, the search in Fyock had to be governed

by the automobile exception interpretations existing at the time of the

search.
86

The Indiana Supreme Court did not agree that Belton had established

a new constitutional principle in search and seizure law and claimed Belton

merely elaborated on what was already a well settled principle of law. 87

The court, without dissent, held that there could be no question of retroac-

tive application of Belton, and therefore, no ex post facto issue. 88

Moreover, the court believed the decision would have been the same if

Belton had never been decided. 89

In recent years Indiana's case law has paralleled the litigous activity

nationally in automobile search law. 90 Unfortunately, despite the oppor-

tunity for clarification and definition, the litigation has resulted mostly

in irreconcilable opinions differentiated only by a few facts. 91 To justify
the search in Fyock, the Indiana Supreme Court cited Henry v. Stated 2

where a search, upon an informant's tip, of a cigarette package on an

automobile's floor revealed heroin. In both Henry and Fyock the officer
had probable cause to believe not only that the car contained contraband

but also that an item turned up in the search of the car would contain

contraband. However, in Henry the belief was supported by a tip by a

reliable informant as well as the officer's observations. 93 In Fyock prob-

able cause was based only on the personal observations of the police of-

ficer. Still, the court found the officer had probable cause to believe the

sock contained contraband and that alone, under the circumstances,

justified the warrantless search.
94

84428 N.E.2d at 62; see, e.g., Bradford v. State, 401 N.E.2d 77 (Ind. 1980); Johnson

v. State, 413 N.E.2d 335 (Ind. Ct. App. 1980).
85428 N.E.2d at 62-63.
%6
Id. at 63.

87436 N.E.2d at 1092.
%%
Id.

i9
Id.

90
See, e.g., Nicaud v. State, 401 So. 2d 43 (Ala. 1981); Hinkle v. Anchorage, 618

P. 2d 1069 (Alaska 1980); State v. Helm, 89 111. 2d 34, 431 N.E.2d 1033 (1981); Louisiana

v. Cunningham, 412 So. 2d 1329 (La. 1982); State v. Compton, 293 N.W.2d 372 (Minn.

1980); Horton v. State, 408 So. 2d 1197 (Miss. 1982); State v. Jose Roman, 53 N.Y.2d
39, 422 N.E.2d 554, 439 N.Y.S.2d 894 (1981); Christian v. State, 592 S.W.2d 625 (Texas

Crim. App. 1980).
9l
See, e.g., Rogers v. State, 396 N.E.2d 348 (Ind. 1979); Henry v. State, 269 Ind.

1, 379 N.E.2d 132 (1978); Montaque v. State, 266 Ind. 51, 360 N.E.2d 181 (1977).
92269 Ind. 1, 379 N.E.2d 132 (1978).
9i
Id. at 8, 379 N.E.2d at 137.

94436 N.E.2d at 1095. Moreover, the court dismissed the appellant's expectation of



90 INDIANA LAW REVIEW [Vol. 17:79

Frock goes beyond what any previous Indiana case permitted in

automobile search and opens the interior of the car and the interior of

containers within that car to the inspection of an arresting officer. The

expansiveness of Fyock is caused in part by the incorporation of Belton

rationale; however, the decision also appears prompted by the United States

Supreme Court opinion in United States v. Ross, 95 less than one month

earlier, which spoke with the same tongue on the appropriateness of the

search of an automobile if supported by probable cause.

In Ross, the Supreme Court granted certiorari in an attempt to

prescribe clear guidelines for conducting warrantless searches involving

automobiles and containers. 96 The Court acknowledged a lack of uniform-

ity in their previous decisions in New York v. Belton91 and Robbins
v. California

9i The Belton rule authorized a search incident to arrest even

when there was no cause to believe that the container searched held
evidence," while the Robbins rule disallowed a search even when prob-

able cause existed, if the owner had a reasonable expectation of privacy

in the contents of the package or container. 100 The conflicting holdings

of Belton and Robbins set the stage for Ross.

In Ross, police officers acting upon an informant's tip, stopped Ross

in his automobile, instructed Ross to step out of the vehicle, and then

conducted a warrantless search of the passenger compartment, glove com-

partment, trunk and a paper bag within the trunk. Later, at the police

station, the officers reopened the trunk, and found and searched a zip-

pered leather pouch. 101 The officers uncovered heroin in the closed paper

bag and $3,200 in the zippered leather pouch. Ross was convicted on this

evidence.
102

The United States Supreme Court held that once a legitimate search
is under way, practical considerations and interests of "prompt and effi-

cient completion of task at hand," take priority over the fine distinctions

between glove compartments, trunks, upholstered seats, and wrapped

packages. 103 The Court held that the scope of the warrantless search "is

privacy arguments, holding the appellant did not have an actual expectation of privacy in
the sock and society was not prepared to recognize one's privacy expectation in a sock
as reasonable. Id.; see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

95456 U.S. 798 (1982).

"Id. at 800.
97
453 U.S. 454 (1981).

98453 U.S. 420 (1981).

"453 U.S. at 460-61.
I00
453 U.S. at 428. The irony of this juxtaposition is evidenced further by the Justices'

positions in Robbins and Belton. Justices Blackmun, Rehnquist, and Stevens upheld the
searches in both cases. Justices Brennan, White, and Marshall invalidated both searches.
Only the Chief Justice, Justice Stewart, and Justice Powell reached the curious conclusion
that a citizen has a greater privacy right in a package of marijuana enclosed in a plastic
wrapper {Robbins), than in the pocket of a leather jacket (Belton). 453 U.S. at 444 n.l.

I0I 456 U.S. at 800-01.
,02

Id. at 801.

IOi
Id. at 821.



1 984] SUR VEY—CONSTITUTION'A L LAW 91

not defined by the nature of the container in which the contraband is

secreted," but "by the object of the search and the places in which there

is probable cause to believe it may be found." 104

In reviewing the automobile exception and upholding the search of

containers found within automobiles, the majority found the doctrine was

born of practicality, and not of the mobility of the automobile or a per-

son's lesser expection of privacy in the automobile.
105 Further, the ma-

jority stated that a warrant would be unnecessary when the circumstances

demand prompt action and obtaining a warrant would be impractical. 106

The only limitations placed by the majority upon their expansive holding

include probable cause and a reasonable belief that the object searched

will contain the items sought.
107 Probable cause to believe that a con-

tainer placed in the trunk of a taxicab contains contraband or other in-

criminating evidence will not justify a search of the entire cab.
108 The

requirement could pose little restriction. In practice, the Court's rule may
amount to a wholesale authorization for police to search any car from

top to bottom when they have suspicion, whether localized or general,

that it contains contraband or other such evidence.

The dissent in Ross decried the decision as violating the warrant ra-

tionale and obviating the automobile exception. 109 According to the dis-

sent, the Ross majority endows police with the same authority of a

magistrate whenever exigent circumstances require an immediate search

of a container. 110 The determination of probable cause, traditionally made

by a neutral and detached magistrate, will now be judged by the officer
engaged in the enterprise of ferreting out crime. 111

l04
Id. at 824. The Court posited the example that "probable cause to believe that un-

documented aliens are being transported in a van will not justify a warrantless search of

a suitcase." Id. Although a search for some objects may be curtailed by this limitation,
it has no effect on searches for small items such as narcotics.

]05
Id. at 820. The dissent, however, noted that in Carroll v. United States, 267 U.S.

132 (1925), the grandfather of the automobile exception, the item searched was the car

itself, i.e., the upholstered seats were torn apart in search of whiskey; no movable container

was ever searched in Carroll. 456 U.S. at 836 n.7. Where a container is an integral part

of the car, mobility is a practical consideration. However, where the container can be removed,

practical considerations are minimal. A container presents little administrative burden if
seized and taken to the station while a warrant is obtained. See United States v. Dall, 608

F.2d 242 (1st Cir. 1979).
,06456 U.S. at 806-08. Although "impractical" is never precisely defined, one senses

that few searches will be deemed unreasonable in a post hoc judicial review.
107

Id. at 807-08. Thus, the Court held that "the scope of the warrantless search authorized

by [the Carroll] exception is no broader and no narrower than a magistrate could legitimately

authorize by warrant." Id. at 825.
l08United States v. Chadwick, 433 U.S. 1 (1977), seemingly survives under this holding,

if only tenuously. However, where probable cause to search the entire automobile exists,

then every container within it is also subject to search if it is reasonable to believe the

items sought may be contained within.
I09456 U.S. at 828.
1,0

Id.

n,
Id. at 829.



92 INDIANA LAW REVIEW [Vol. 17:79

The dissent's analysis of the automobile exception found a warrantless

search justified, not on probable cause alone, but on probable cause

coupled with the mobility of the automobile which is the exigent cir-

cumstance justifying the exception to the warrant requirement. 112 "The
practical mobility problem—deciding what to do with both the car and
the occupants if an immmediate search is not conducted—is simply not
present in the case of movable containers, which can easily be seized and

brought to the magistrate."
113 The dissent alleged that in equating a police

officer's estimation of probable cause with a magistrate's and in excising

the mobility rationale from the automobile exception, the majority had

violated the principles of the fourth amendment and had taken the first
step toward an unprecendented probable cause exception to the warrant

requirement. 114 In truth, the majority's holding probably does not create

a new exception, but diminishes the need for an exception. By extinguishing

mobility as the underlying basis for the automobile exception, the excep-

tion loses the persuasive justification for its existence. Thus, without ex-

igent circumstances and without a warrant, the officer's determination

of probable cause combined with a reasonable belief that items searched

will yield contraband is sufficient.

The Ross decision is based largely on matters of expediency and prac-

ticality for law enforcement. The significance of Ross and Fyock lies in
the apparent willingness of courts to accept any intrusive warrantless search

provided probable cause is present. Past arguments such as expectation

of privacy, or mobility, may have little effect in the future on courts faced
with a warrantless search of a container within an automobile.

2. Community Caretaking Exception.—In United States v. Pichany, 115
the seventh circuit held that the community caretaking exception did not

extend to a warrantless search of a warehouse undertaken by police of-

ficers investigating an unrelated burglary. The exception generally allows

officers engaged in a community caretaking function, totally divorced from

the detection, investigation, or acquisition of evidence relating to the viola-

tion of a criminal statute, to observe, note and introduce evidence ac-

quired purely because of their role as a police officer in their contact

with the public." 6 The defendant in Pichany was storing stolen tractor

1,2
Id. at 833.

n3
Jd. at 832. Mobility of the container had little persuasive or conclusive force for

the majority. Indeed, the Ross court seems to adopt the same rationale as applied in Chambers
v. Maroney, 399 U.S. 42 (1977). If a container may be searched under the automobile ex-
ception, then it may still be searched later though the justification for the search may have
disappeared.

"M56 U.S. at 827 (White, J., dissenting).
" 5 687 F.2d 204 (7th Cir. 1982). This case is also discussed in Johnson, Criminal Law

and Procedure, 1983 Survey of Recent Developments in Indiana Law, 17 Ind. L. Rev.
115, 130 (1984).

n6See South Dakota v. Opperman, 428 U.S. 364 (1976); Cady v. Dombroski, 413 U.S.
433 (1973). The exception is justified by three distinct "considerations: "the protection of
the owner's property while it remains in police custody, the protection of police against



1984] SURVEY—CONSTITUTIONAL LAW 93

and farm equipment in a leased warehouse which was one of a series

of warehouses in an industrial park." 7 Police officers called to the park

to investigate a burglary in an adjacent warehouse entered defendant's

unlocked warehouse and noted the serial numbers on three suspicious-

looking vehicles stored inside. Upon later discovering the vehicles were
stolen in an unrelated burglary, the officers obtained a search warrant,

returned to the warehouse, seized the vehicles and arrested the defendant."

The government argued on appeal, following the trial court's grant-

ing of the defendant's motion to suppress the evidence found in the

warehouse, that the search was justified under the community caretaking

exception and therefore evidence discovered during the warrantless search

should not be suppressed." 9 The government contended that the officers
were not investigating the defendant's involvement in any crime and entered

his warehouse only to search for a person connected with the unrelated

burglary. Therefore, because they were acting in the community caretak-

ing role, evidence obtained from that entry should not have been

suppressed. 120

The seventh circuit dismissed these arguments, noting the community

caretaking exception applies only to automobiles taken into police

custody.
121 The caretaking exception is justified by concerns for the uninter-

rupted flow of traffic on the highways, or for preservation of evidence. 122

Neither of these concerns should have prompted the officers' actions in

Pichany. The seventh circuit was unwilling to allow the community caretak-

ing exception unless it could be shown that: (1) the officers exercised con-

trol or dominion over the property; (2) the officers were under an obliga-

tion to secure the warehouse or preserve its contents where a threat of

damage or theft was immediately present; or (3) the officers entered the
warehouse to protect the defendent or the public from potential danger. 123

The reluctance of the court to extend the community caretaking ex-

ception beyond the automobile context seems proper given the constitu-

claims of disputes over lost or stolen property, and the protection of the police from poten-

tial danger." Opperman, 428 U.S. at 368.
1,7687 F.2d at 205-06.
u
*Id. at 206.

n9
Id. at 207. The government appealed the district court's decision to suppress the

evidence pursuant to 18 U.S.C. § 3731 (1976) which permits an appeal from a decision

or order suppressing evidence if the appeal is "not made after the defendant had been
put in jeopardy and before the verdict or finding on an indictment or information." 687

F.2d at 205, n.l.
120

Id. at 207.
121

Id. at 208-09. Although no Indiana court has ever alluded to the community caretaking

exception, let alone defined it's application, the seventh circuit's decision that it applies

only to automobiles is consistent with other circuit decisions. See United States v. Markland,

635 F.2d 174 (2d Cir. 1980); United States v. Coleman, 628 F.2d 961 (6th Cir. 1980); United

States v. Staller, 616 F.2d 1284 (5th Cir. 1980); United States v. Newbore, 600 F.2d 452

(4th Cir. 1979).
I22687 F.2d at 207 (citing South Dakota v. Opperman, 428 U.S. 364 (1976)).
,23687 F.2d at 207-08.



94 INDIANA LAW REVIEW [Vol. 17:79

tional difference between houses and cars. 124 Only when exigent cir-
cumstances prevent the officer from first obtaining a warrant should the

search be excepted. 125 In the absence of cases applying the exception to

private homes or business, the seventh circuit properly refused to extend

the community caretaking exception beyond the automobile search context.
3. Plain View.—In another warehouse case, the seventh circuit held

that the incriminating nature of items seized during a search of a warehouse

may be immediately apparent and therefore the seizure is properly within
the scope of the plain view doctrine. 126 Generally, for evidence seized dur-

ing a search to qualify for the plain view exception to the warrant re-

quirement, "it must be shown that (1) the initial intrusion which afforded
the authorities the plain view was lawful; (2) the discovery of the evidence

was inadvertent; and (3) the incriminating nature of the evidence was im-

mediately apparent." 127

In United States v. Thomas, 128 when the warehouse lessor, a former
police officer, collected rent from the defendant-lessee, he observed men
cutting apart an automobile. Upon the lessor's tip, FBI agents began
surveillance, watching stolen cars being driven into the warehouse. Agents

entered with a warrant to seize specific stolen cars and found parts from

numerous autos. 129 The defendant moved to suppress the evidence not
listed in the warrant, but which was seized by the agents while executing

the warrant. 130 The defendant argued the incriminating nature of those

items—disassembled stolen automobile parts—was not immediately
apparent. 131

The seventh circuit found the incriminating nature of the parts seized

was immediately apparent and the seizure was within the scope of the

plain view doctrine. 132 Although officers may not use the pretext of "plain
view" to conduct general inventory searches for items that may have a
suspect character,

133
in the present case agents knew that stolen cars were

being driven into the warehouse, and that cars were being cut up inside

124Although automobiles are "effects" and are protected against unreasonable searches

under the fourteenth amendment, automobile searches may be excepted under the warrant

requirement for reasons that would not justify a similar search of home or office. The

distinction between car and home seems based on the mobility of the automobile and the
lesser expectation of privacy one has in an automobile. See South Dakota v. Opperman,

428 U.S. 364, 367 (1976).
l25The government did not even argue exigent circumstances on appeal. 687 F.2d at

209. However, the government did raise a "good faith" argument for the first time on

appeal, but it was denied for failure to advance it first in the lower court. Id. at 209-10.
126
United States v. Thomas, 676 F.2d 239 (7th Cir. 1980), cert, denied, 450 U.S. 931 (1981).

1 "United States v. Schire, 586 F.2d 15, 17 (7th Cir. 1978) (citations omitted).
,28676 F.2d 239 (7th Cir. 1980), cert denied, 450 U.S. 931 (1981).
,29676 F.2d at 241.
no

Id. at 243.
ni

Id.

132
Id.

'"Id. (citing United States v. Schire, 586 F.2d 15, 18 (7th Cir. 1978)).



1984] SURVEY—CONSTITUTIONAL LAW 95

the building. With this information the incriminating nature of the items

seized was immediately apparent and was properly within the scope of

the plain view doctrine.
134

C. Eighth Amendment and Section 1983

"Persons are sent to prison as punishment, not for punishment."

1. Prison Conditions.—Civil rights actions and eighth amendment
challenges to conditions of prison life have become increasingly prevalent
in recent years.

136 French v. Owens, 131 the most recent case of this trend,

was a class action brought under 42 U.S.C. § 1983 by four inmates in

the Indiana Reformatory on behalf of themselves and the plaintiff class,

defined as "all persons who are or in the future may be confined in the
Indiana Reformatory, Pendleton, Indiana." 138 The inmates complained
of poor living conditions, inadequate medical care, lack of safety and

security, bad food services, inadequate educational and vocational pro-

grams, an arbitrary system of prison discipline, and insufficient access

to the courts.
139 The inmates maintained that the overcrowding of the

prison, coupled with all other conditions constituted cruel and unusual

punishment in violation of the eighth amendment. 140 Plaintiffs sought to

134676 F.2d at 244.
,35

Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977).
li6See generally Estelle v. Gamble, 429 U.S. 97 (1976); Anderson v. Redman, 429

Supp 1105 (D. Del. 1977); Pugh v. Locke, 406 F. Supp 318 (M.D. Ala. 1976).
,37 538 F. Supp. 910 (S.D. Ind. 1982).
138

/</. at 911.
n9

Id.

140
Id. Specifically, the plaintiffs alleged the following deficencies:

1 . The Indiana Reformatory had three cellhouses and two dormitories. In those

units, only 860 cells were available for inmate occupation in January, 1978.

However, the prison population at that time was 1,297 and by January of

1982 it had risen to 1,972. Consequently the cells did not provide an ade-

quate amount of living space for the individuals incarcerated therein.

2 . The cells were inadequately lit, inadequately ventilated and heated, did not

contain hot water and were infected with disease carrying vectors, including

birds, due to lack of such basics as screened windows in the cellhouse.

3 . Each cell contained an uncovered toilet which often leaked as did the sink.

The cells did not contain any chairs or area within which the inmate could

walk or exercise.

4 . The shower areas were unfit for humans due to the inadequate number of

shower heads, the decrepit conditions of the showers, and the filth and mold

that accumulated.

5. The Reformatory had a doctor who could not adequately speak English,

an untrained and inadequate staff, a crumbling and antiquated facility, and

misdiagnosed, leaving the inmate in pain for lengthy periods or with permanent

damage.

6 . The Reformatory failed to reasonably protect an inmate from the constant

threat of violence and sexual assault by his fellow inmates.

7 . The Reformatory failed to provide inmates with food prepared in sanitary

conditions or to provide for special diets.



96 INDIANA LAW REVIEW [Vol. 17:79

enjoin the responsible state officials from further violations of their con-

stitutional rights.
141

Judge Dillin of the United States District Court for the Southern

District of Indiana heard evidence in this case for over a month during

the summer of 1978, and again for five days in March of 1982.
142

In

addition, the Judge, in the presence of counsel, inspected the cellblocks,

infirmary and other areas of the prison on March 5, 1982.
143

Lacking a precise definition of cruel and unusual punishment and

mechanical standards to apply, Judge Dillin invoked the "evolving stand-

ards of decency that mark the progress of a maturing society" against

which the punishment could be measured.
144 The court determined that

the conditions alleged by the plaintiffs should not be viewed in isolation,

but that the "totality of conditions" must be examined in evaluating eighth

amendment claims. 145

Based upon findings of fact that the medical care and mental health

treatment were inadequate;
146

that academic and vocational education op-

portunities for those in idle hold and self-lockup were not in compliance

with state law;
147

that because of overcrowding, lack of planning and fund-

8 . Vocational training shops lacked adequate or proper equipment and did not

provide worthwhile or practical training for inmate participants.

9 . The Reformatory lacked sufficient personnel to deal with the mental health

needs of the prisoners.

1 . The procedures utilized for violation of the disciplinary rules provided for

pre-hearing confinement. At a hearing the inmate's right to call a witness

was not always respected.

1 1 . The Reformatory failed to provide an adequate program of exercise and recrea-

tion for many participants.
1 2 . The Reformatory failed to provide reasonable access to the law library or

to trained legal staff whereby the inmates might gain access to the courts.

See Plaintiff's Post Trial Memorandum and Plaintiff's Proposed Findings of Facts.
The last allegation coupled with the allegation that inmates at Pendleton were treated

more harshly than inmates at the Indiana State Farm, formed the plaintiffs' fourteenth

amendment challenge. The court found no merit in these allegations and dismissed them.

538 F. Supp. at 924.
I4,

538 F. Supp. at 911.
,A2

Id. at 911-12. In the interim period, Judge Dillin reserved ruling pending submission

by the parties of proposed findings of fact and conclusions of law, and the filing of post-

trial briefs. Id. The opinion does not explain the delay of nearly four years between the

original trial in 1978 and the reopening of the cause to hear additional evidence in 1982.
]i,

Id. at 912.
,4i

Id. (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). In the

past, courts have looked mainly to whether the punishment to which an individual or prison

population has been subjected are so far below civilized norms as to be cruel and unusual.

See, e.g., O'Brien v. Moriarity, 489 F.2d 941 (1st Cir. 1974).
,45

538 F. Supp. at 912 (citing Gates v. Collier, 501 F.2d 129 (5th Cir. 1974)).
,46
538 F. Supp at 919.

147
Id. at 920. Idle hold consists of prisoners not yet given a permanent job assignment.

Prisoners in self-lock up are under protective custody in the administrative segregation unit

and are confined for an indeterminate period of time which may last over two years.



1984] SURVEY—CONSTITUTIONAL LAW 97

ing, prisoners were denied proper exercise and recreation; 148 and that the

institution failed to meet state and federal health sanitation, safety and

fire laws,
149 Judge Dillin held the defendants, in their official capacity,

had violated numerous relevant Indiana statutes. 150

To remedy these violations the court ordered that the facilities be
brought into compliance with the standards of the State Board of Health

and the State Fire Marshal; that each inmate be given opportunity and

facilities to engage in recreation; that medical care facilities, proper equip-

ment and qualified medical personnel be obtained for proper diagnosis

and treatment of medical and mental health problems; that efforts be taken

through staff operations to ensure the safety and security of inmates; and

that each inmate be provided with an education, vocation, or job

assignment. 151

No Indiana statute specifically addressed the issue of overcrowding, 152

thus leaving the court to rely upon case law analysis. 153 Although there

was no constitutional prohibition against the use of the double celling

or double bunking policies which led to the crowded conditions, 154 and

despite previous case law which found double celling was not a violation

of the constitutional ban on cruel and unusual punishment, 155 the court

found that the overcrowding of the institution when coupled with all of

the other conditions, constituted cruel and inhuman treatment in viola-

tion of the eighth amendment. 156

The court distinguished those cases where the prisoners were housed

l4 Ud. at 916.
[49

Id. at 921-22.
l50

Id. at 924. See Ind. Code §§ ll-10-3-2(c), 11-10-4-2, 11-10-5-1, 11-10-6-2, 11-10-6-3,
11-10-11-1, 11-10-11-2, 11-11-6-1, and ll-ll-6-2(a) (1982). The blow of this abysmal record

was hardly softened by the court's findings that the plaintiff's had not carried their burden

of proving violations of either state or federal law in the areas of prison discipline and

access to courts. 538 F. Supp. at 924. The federal court's jurisdiction over the plaintiff's

state law claims was pendent to its jurisdiction over the federal § 1983 cause of action.

Id. at 911.
15 '538 F. Supp at 927-28.
152See id. at 924.
,53

In determining the constitutionality of crowded conditions in prisons, the courts most

often look at:

1) the design capacity of the institution;

2) the number of inmates housed in excess of capacity;

3) the square footage per inmate for sleeping and living; and,

4) the type of housing (cell or dormitory).

See, e.g., Costello v. Wainwright, 397 F. Supp. 20 (M.D. Fla. 1975), aff'd, 525 F.2d 1239

(5th Cir. 1976), vacated, 539 F.2d 547 (5th Cir. 1976); Campbell v. Beto, 460 F.2d 765

(5th Cir. 1972).
,54 538 F. Supp. at 924-25.
I$i

ld. at 925 (citing Rhodes v. Chapman, 452 U.S. 337 (1981); Bell v. Wolfish, 441

U.S. 520 (1979)).
156

Id. at 926.



98 INDIANA LAW REVIEW [Vol. 17:79

in relatively modern, bright, clean spacious cells.
157 Inmates occupying

cells at the Indiana Reformatory were provided from 22 to 23.8 square

feet of space, less that taken up by the beds, the lavatory and the

commode. 158 The court pointed out that even a penned animal must be

given at least 24 square feet for exercise under the Indianapolis City

Code, 159 and that expert witnesses, including the defendant's experts,

testified that the "minimum amount of square feet per man thought to

be necessary ... is 50 square feet/' 160

The overcrowding led to more than just aggravation. Severe forms

of violence, including stabbings, bludgeoning, and homosexual rapes, oc-

curred with distressing frequency. Gambling commenced and racial ten-

sions increased. Nightly disturbances and noise frequently prevented quiet

until 2:30 or 3:30 a.m.
161 These considerations prompted the court to order

the population at the Reformatory limited to 1,950 and decreased in in-

cremental amounts on a yearly schedule.
162

Effective January 1, 1983 dou-

ble celling was prohibited and double bunking will not be permitted after

January 1, 1984.
163

l5 The court noted that in Bell v. Wolfish, 441 U.S. 520 (1979), the correctional in-
stitution was described by the Supreme Court as follows: " 'The [institution] differs markedly

from the familiar image of a jail; there are no barred cells, dark, colorless corridors or

clanging steel gates ....'" 538 F. Supp. at 925 (quoting 441 U.S. at 525). Moreover,
the complainants were pretrial detainees, confined to their cells only during normal sleeping

hours, with an average length of detention of about 60 days. 538 F. Supp. at 925. The

court also noted that in Rhodes v. Chapman, 452 U.S. 337 (1981), the district court described

the correctional institution as "unquestionably a top-flight, first class facility," and that

the Supreme Court reversed the district court's conclusion that double celling constituted

cruel and unusual punishment because "[virtually every one of the [district] court's find-

ings tends to refute [the prisoners'] claim . . . ." 538 F. Supp. at 925 (quoting 452 U.S.

at 347-48). Judge Dillin stated that "the two cases . . . merely serve to point up specific

situations in which the facts did not demonstrate a violation of the Eighth Amendment's

ban on cruel and unusual punishment." 538 F. Supp. at 925. "In contrast to the new,

clean and relatively comfortable facilities described in Wolfish and Rhodes ... we find
in the Indiana Reformatory ... a 59 year old structure with inadequate [facilities, services

and living space]." Id. at 925-26.
I58

lt was physically impossible for a double celled occupant of the upper bed to sit

erect. Because there was no room for a chair or stool in the double cell, the inmate could
not sit except upon the floor or the coverless toilet. In the dormitories, conditions were

no less crowded; bunks were as close together as 20 to 24 inches or less, close enough

to touch one bunk while lying in the other. 538 F. Supp. at 914-15. In 1982, the population

level was at least 50 percent over design capacity. See id. at 913.
* 59

Id. at 913 (citing Code of Indianapolis and Marion County, Ind. § 6-7 (1975).
i60

538 F. Supp. at 914.
161

Id. at 922-23. These cumulative incidences of behavior are not surprising in light

of recent prison studies. The number of illness complaints and degree of psychological stress

of prisoners can be correlated to the spacial and social density in the prison. See, e.g.,

McCain, Cox, & Paulus, The Relationship Between Illness Complaints and Degree of
Crowding in a Prison Environment, 8 Environment & Behaviour 283, 290 (1976).

,62538 F. Supp. at 927.
163

Id.



1984] SURVEY—CONSTITUTIONAL LAW 99

The fault of the statute violations and overcrowding, the court noted,

was not entirely that of the defendant's; the blame must also fall on the

Indiana General Assembly in failing to provide for the critical situation.
164

The court took judicial notice of the fact that while legislating lengthened

sentences for violations of criminal law, the legislature failed to allocate

funds to provide for the increasing number of commitments for longer

terms.
165 Without adequate funding in the future, prisons cannot be

reasonably expected to accommodate those persons entrusted to their care

and future violations and consequent litigation will be the certain result.

2. Collateral Estoppel in Previously Litigated Prison Conditions.—An
eighth amendment challenge brought into issue the question of res judicata

and collateral estoppel 166 in Crowder v. Lash, 161 when the conditions com-

plained of had previously been litigated in a class action, in which the

present plaintiff was a class member. 168

In Aikens v. Lash, decided in 1974, the plaintiffs sought injunctive

relief, alleging violations of the following federal constitutional rights:

1) Plaintiffs were denied due process by their transfer from Indiana

Reformatory to the Indiana State Prison without minimum procedural
protections.

i64
Id. at 926.

,65
Id. The court did acknowledge the Indiana General Assembly's appropriation of

funds in 1979 and 1981 for construction or rehabilitation at the reformatory. Id.

'"Because the doctrines of res judicata and collateral estoppel are so frequently con-

fused, a short summary of the principles involved may be helpful.
In Allen v. McCurry, 449 U.S. 90 (1980), the Supreme Court reviewed the requirements

of the two preclusion doctrines in the context of a section 1983 civil rights action. The

Court stated:

The federal courts have traditionally adhered to the related doctrines of res

judicata and collateral estoppel. Under res judicata, a final judgment on the merits

of an action precludes the parties or their privies from relitigating issues that were

or could have been raised in that action. Under collateral estoppel, once a court

has decided an issue of fact or law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a different cause of action involving

a party to the first case ....
In recent years . . . the Court has eliminated the requirement of mutuality

in applying collateral estoppel to bar relitigation of issues decided earlier in federal-

court suits, and has allowed a litigant who was not a party to a federal case
to use collateral estoppel "offensively" in a new federal suit against the party

who lost on the decided issue in the first case. But one general limitation the
Court has repeatedly recognized is that the concept of collateral estoppel cannot

apply when the party against whom the earlier decision is asserted did not have
a "full and fair opportunity" to litigate that issue in the earlier case.

Id. at 94-95 (citations and footnotes omitted). For a discussion of these doctrines under

the specific model presented by Aikens and Crowder, i.e., class action alleging violations

of section 1983 followed by an action for damages brought by an individual member of
the class, see Bodensteiner, Application of Preclusion Principles to § 1983 Damage Actions
After a Successful Class Action for Equitable Relief, 17 Val. U.L. Rev. 347 (1983).

,67687 F.2d 996 (7th Cir. 1982).
,68

371 F. Supp. 482 (N.D. Ind. 1974), aff'd as modified, 514 F.2d 55 (7th Cir. 1975),

vacated on other grounds, 425 U.S. 947 (1976).



100 INDIANA LAW REVIEW [Vol. 17:79

2) Plaintiffs were denied rights under the first, fourth, eighth, ninth

and fourteenth amendments because of their incarceration in two different

administrative segregation units (I.D.U. and D.O. units) under deplorable

conditions of health, nutrition, medical care, and recreation, as well as

inadequate access to literature, legal and otherwise. In the D.O. unit, plain-

tiffs also complained of the spraying of the chemical MACE into occupied
cells as a control tactic.

3) Plaintiffs were denied first, sixth and fourteenth amendment rights

by the practice, at the state prison, of interfering with mail sent between

prisoners and their attorneys. 169

The United States District Court for the Northern District of Indiana

held that mimimum due process standards apply to all disciplinary
transfers, absent an emergency, and outlined the required procedures. 170

The court also found that the conditions in the D.O. unit of administrative

segregation violated the eighth amendment's ban on cruel and unusual

punishment, stating: "The conditions therein existing are shockingly in-
humane and have no place in today's penal programs. The conditions
there threaten the sanity of the inmate and are abhorrent to any efforts

at rehabilitation."
171

Finally, the court witheld judgment on the question

of the censorship of literature and mail sent to and from inmates, pend-

ing the resolution of a similar question by the Seventh Circuit en banc. 172

In Crowder, the plaintiff had been a member of the plaintiff class
in Aikens.

lli He raised substantially the same due process, eighth amend-
ment and censorship issues as had been raised by the plaintiffs in the

preceding class action, 174 but sought damages under section 1983 rather

than equitable relief. At trial, the district court directed a verdict for all

defendants except the warden on grounds of lack of personal

responsibility.
175

Further the district court removed from the jury's con-

sideration all issues except the plaintiff's eighth amendment claim, on which

the jury returned a verdict for the plaintiff.
176

With respect to that claim, the evidence showed that the plaintiff spent

four out of his seven years in prison confined to the D.O. unit of ad-

ministrative segregation in the state prison. He alleged that the condition
of the cell, coupled with the disproportionate amount of time he was forced

to spend in administrative segregation violated the eighth amendment. 177

I69
371 F. Supp. at 486.

no
Id. at 491-92. The Seventh Circuit approved these procedures with some modifica-

tion. See 514 F.2d at 58-62.
,7I

371 F. Supp. at 498.
n2

Id. at 499 (citing Morales v. Schmidt, 489 F.2d 1335 (7th Cir. 1973)).
m687 F.2d at 1008.
'"See id. at 1000-01.
ns

Id. at 1001.
n
*Id. at 1001-02.

'"Id. at 1001.



1984] SURVEY—CONSTITUTIONAL LAW 101

In the court of appeals the defendants argued that becuase of the plain-

tiff's participation in Aikens, he should have been barred by res judicata

principles from bringing his present suit. 178 The appeals court held the
defense waived because of the defendent's failure to raise a res judicata

defense to the plaintiff's eighth amendment claim in the lower court. 179

Even if the defense had been raised properly, the Seventh Circuit

would have rejected it. 180 Aikens sought declaratory and injunctive relief

only;
181 Crowder asked for damages against the prison officials in their

individual capacities.
182 Due to the individual damage claims, the possible

issue of qualified immunity, and the fact that Crowder' s damages had

not been fully incurred at the time he joined Aikens, the court found

Crowder would not be precluded because of res judicata by an earlier

class action in which only declaratory and injunctive relief were sought. 183

In a similar tactic, Crowder raised collateral estoppel arguments in

his suit to preclude the defendants from relitigating the constitutionality

of the conditions. 184 The district court had refused to apply the doctrine,
reasoning that the defendants were entitled to a jury trial in the present

suit and the non-jury verdict in Aikens could not collaterally estop them

from presenting eighth amendment arguments to jury. 185

The court of appeals, however, noted that under Parklane Hosiery

Co. v. Shore,V 86 "a plaintiff in a subsequent legal proceeding may assert
collateral estoppel based upon a prior equitable determination, provided
that the defendant has had a 'full and fair' opportunity to litigate its

claims in the prior action."
187 Because Crowder was a "real" plaintiff

in the previous litigation, and because the defendants had every oppor-

tunity to litigate their eighth amendment liability and were not forced to
litigate in an inconvenient forum, the appeals court held that Crowder

could not be prevented from using collateral estoppel to bar relitigation

of the constitutionality of the conditions. 188 On remand, the district court
was instructed to allow collateral estoppel, but only to the extent allowed

under Parklane. 189

X1%
ld. at 1007-08.

n9
Id. at 1008.

lS0
Id.

lsl See 514 F.2d at 56.
,82687 F.2d at 1008.
18 Ud. at 1009. The Seventh Circuit's dicta is in line with other circuits' decisions. See,

e.g., Cotton v. Hutto, 577 F.2d 453 (8th Cir. 1978); Jones-Bey v. Caso, 535 F.2d 1360

(2d Cir. 1976).
184687 F.2d at 1009.
l85

/tf. at 1010.
186439 U.S. 322 (1979).
187687 F.2d at 1010 (citing 439 U.S. at 328, 332-33).
188687 F.2d at 1011. The court pointed out that this holding established the defen-

dant's liability in this case; however, the issues of good faith and personal responsibility

of the defendants remained to be litigated. Id.
,i9

Id. at 1012. Under Parklane, collateral estoppel should be permitted provided the



102 INDIANA LAW REVIEW [Vol. 17:79

3. Standard for Personal Injury Claims Under Section 1983.—In Burr
v. Duckworth, 1 " an inmate at the Indiana State Prison contended that

he sustained personal injuries as a result of prison officials' alleged indif-

ference to inmate violence and that such indifference constituted a viola-

tion of the eighth amendment. 191 The crucial issue in Burr was the stand-
ard against which the conduct of prison authorities will be measured

when personal injury claims arising in prisoner petitions are brought under

42 U.S.C. § 1983.
192

Plaintiff claimed the proper standard was that of negligence and

argued that the defendants were negligent in failing to transfer him to

another prison facility after he informed prison officials of his fear of

attacks from other inmates and requested transfer from the facility. 193

No circuit court has adopted the negligence standard in regards to per-
sonal injury claims. Moreover, eighth amendment violations require a
showing of deliberate indifference, not negligence. 194 Thus, had the prison

officials manifested an actual intent to deprive the plaintiff of his rights,

or knowingly acquiesced in the violation of the plaintiff's rights, the of-

ficials may have been liable. However, in Burr, safety precautions were
taken to the extent possible by placing the plaintiff in protective

segregation.
195 The plaintiff's refusal to inform officials of his prospec-

tive assailants could not be mutated into deliberate indifference on the

defendant's part. 196

Additionally, although the plaintiff had a right to protection within

his facility, the prisoner had no constitutionally protected right or interest

to be transferred from one facility to another within a corrections system. 197

issues have been fully and fairly adjudicated in a prior proceeding and nothing remains

for trial either with or without a jury. 439 U.S. at 332-33.

The court of appeals also reversed the district court's directed verdict for defendants

on the following issues: plaintiff's right to legal literature and correspondence with his at-

torney, 687 F.2d at 1004; his right to free exercise of religion, id.; his due process rights,

id. at 1005; and the personal responsibility of two of the defendants concerning the first,

eighth and fourteenth amendment claims, id.
I90 547 F. Supp. 192 (N.D. Ind. 1982).
i9

'Id. at 194.

192To state a claim under section 1983, a plaintiff must show that the conduct com-
plained of was committed by a person acting under color of state law and that it deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States. Id. at 195. Because any act by the superintendent of the state prison would

be under color of state law, the only issue was whether the defendant-superintendent's failure

to transfer the plaintiff to another correctional facility, as requested by the plaintiff because

of threats made on his life by other inmates, amounted to a deprivaton of the plaintiff's
eighth amendment right to be free from cruel and unusual punishment. Id. at 196.

l9i
Id. at 196 n.2.

""Id. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
,95 547 F. Supp. at 196.

""Id. at 197.
,91

Id. See Meachum v. Fano, 427 U.S. 215, 223-24 (1976); Montayne v. Haymes, 427



1 984] SUR VEY—CONSTITUTIONA L LAW 1 03

Section 1983 requires liability to be predicated on the deprivation of a

constitutionally protected right. Absent that, no liability can attach. 1 ''"

Burr demonstrates the reluctance of the courts to involve the judiciary

in issues that are not the business of federal judges, but more properly

lie within the discretion of prison authorities. Without a showing that

those officials acted recklessly or with actual intent in depriving a prisoner

of a constitutionally protected right, no claim can rest under section 1983

for personal injuries.

D. Fourteenth Amendment—Equal Protection and Due Process
1. Prisoner Correspondence and Damage Awards.—A section 1983 ac-

tion initiated over eight years ago by a prisoner alleging first and four-

teenth amendment violations was brought closer to an end during this
survey period after years in a judicial labyrinth. In Owen v. Lash, ] " retired
Supreme Court Justice Potter Stewart, sitting by designation, wrote for

the Seventh Circuit Court of Appeals and held that a denial of an in-

mate's right to correspond amounts to a substantive rights violation under

the fourteenth amendment. 200 The significance of the case lies in its lengthy

history, the puzzling rationale of the district court, and the dicta offered

by the Seventh Circuit on a question of first impression.

From March 1973 to February 1974, while an inmate at the Indiana
State Prison, Owen was denied the right to correspond with a newspaper
reporter and two other individuals. 201 In response to Owen's suit for in-

junctive relief and damages, the district court declared the claims were

barred by res judicata in light of Aikens v. Lash. 202 In the first appeal

to the Seventh Circuit, the court ruled the claims were not barred by res

judicata and ordered the district court to determine on remand if there

existed a "rational basis" for the denial and further, whether the defend-

ant was protected from individual liability by qualified immunity. 203

On remand the district court ruled the state's justification for inhibiting
Owen's correspondence did not "pass muster" and amounted to a viola-

tion of plaintiff's constitutional rights. 204 However, the district court found

the rights violated were only "court created procedural due process

rights,"
205

despite the fact that no paper filed in the suit ever mentioned

U.S. 236, 242 (1976)(holding that a prisoner has no liberty interest protected by due process

in remaining in a certain prison within a prison system).
l9iSee Parrat v. Taylor, 451 U.S. 527, 535 (1981).

'"682 F.2d 648 (7th Cir. 1982).
200

Id.

20>
Id. at 650.

202 371 F. Supp. 482 (N.D. Ind. 1974), aff'd as modified, 514 F.2d 55 (7th Cir. 1975),

vacated on other grounds, 425 U.S. 947 (1976). See supra notes 169-72 and accompanying text.
203682 F.2d at 650-51.
20i

Id. at 651.
20S

Id.



1 04 INDIANA LA W REVIEW [Vol . 1 7 : 79

procedural due process, nor had any party ever mentioned the right of

procedural due process. 206 The district court held that when procedural
due process rights are violated, only nominal damages in the sum of one
dollar may be awarded in the absence of actual damages. 207 The judg-
ment ordered was only against Lash in his official capacity, because the

plaintiff allegedly failed to introduce evidence against Lash individually. 208

The case was appealed again, this time before Justice Stewart. The

Seventh Circuit was puzzled by the district court's conclusion that pro-

cedural rather than substantive rights had been violated since Owen alleged
denial of his substantive correspondence rights—the right to send and
receive letters and thereby communicate with the outside world—not the
unconstitutionality of the manner in which the restriction had been

imposed. 209

The district court's ruling on individual and executive liability for

damages was found to be equally confounding. Because the eleventh

amendment bars any action for the recovery of money from the state
in a section 1983 action, unless the states waives its immunity, 210 a damage

award against Lash in his official capacity would, necessarily, be satisfied

from state funds and therefore in violation of the eleventh amendment. 211

Absent waiver of immunity by the state it was error to award the nominal

one dollar in damages. 212 Two questions still remained: 1) Given a proven
violation of substantive rights, could Owen collect damages from Lash,
individually, and, 2) if so, is Owen limited to recovering only the sum
of one dollar?

A state prison official's exposure to personal liability in a section 1983
suit is controlled by the doctrine of qualified immunity which invokes

a standard of negligence in assessing liability. 213 A state prison official
is immune from liability unless "the official 'knew or reasonably should
have known that the action he took within his sphere of official respon-
sibility would violate the constitutional rights of the [citizen] affected, or

if he took the action with the malicious intention to cause a deprivation

of constitutional rights or other injury . . . ,'"
214

Warden Lash's signature appeared on most of the paperwork relating
to the denial of Owen's rights; whether Lash knew or should have known
that his conduct violated the constitutional norm, however, was never

206
Id. at 652.

2t,1
Id. at 651 (citing Carey v. Piphus, 435 U.S. 247 (1977)).

208682 F.2d at 651.
2n9

Id.

2l0Edelman v. Jordan, 415 U.S. 651 (1974).
2 "682 F.2d at 654-55. Both parties in Owen agreed that the district court's decision

violated the eleventh amendment. Id. at 655.
2,2

Id. at 654-55.
2nSee Procunier v. Navarette, 434 U.S. 555 (1978).
2,4

Id. at 562 (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975)).



1 984] SUR VEY—CONSTITUTIONAL LAW 105

discussed by the district court—even after specific instructions by the
Seventh Circuit after the first appeal.

215 The Seventh Circuit remanded

on the issue of qualified immunity. 216

As to the second issue—the limitation of one dollar recovery if Lash,
individually, is found liable for his action and not immune from suit—

a

question of first impression arises in this circuit. Under section 1983 could

Owen recover more than nominal damages against Lash for deprivation
of a substantive right if no actual injury can be shown? Carey v. Piphus2n

held expressly that in cases of procedural due process violations, plain-

tiffs who fail to prove actual injury are limited to nominal damages. 218

In instances were the deprivation is one of a substantive constitutional

right, the Carey court stated the elements and prerequisites for recovery

of damages will vary depending on the facts and the nature of the in-

terest protected by the particular constitutional right in question.
219

Clearly, the rights in Owen were substantive and could be distinguished
from the procedural rights involved in Carey. However, the Seventh Cir-

cuit declined to decide whether a substantive rights violation would war-

rant a compensatory award in the absence of an actual injury. Instead,

the court remanded with instructions for the district court to consider

the issue should it find Lash, in his individual capacity, is not immune
from liability. 220 Should the district court find qualified immunity applies

215682 F.2d at 656. The circuit court stated that because the district court's ruling dismiss-
ing Owen's claim against Lash individually "is phrased in purely conclusory terms, without

any explanation or citation to the record, it is somewhat difficult to discern the exact mean-

ing of the dismissal." Id. at 655. However, the circuit court reasoned that it was "likely"

that the district court had the doctrine of qualified immunity in mind when it dismissed

the complaint against Lash individually, even though the district court failed to explain

its action in those terms. Id. at 656. Justice Stewart stated that given the fact that Lash's

signature appeared on most of the paperwork denying Owen's first amendment rights, and
"[g]iven the complaint, the record, and the other judicial rulings in this case, it is hardly-

possible to read the District Court's decision as holding that Warden Lash was not even
partly responsible for the proven deprivation of Owen's rights." Id. at 655. Still, Lash might

not be personally liable for such deprivaiton because of the doctrine of qualified immunity.
21 6

Id. at 656.
2I7

435 U.S. 247 (1978).
2n

Id. at 266.
219

Id. at 264-65. Circuit courts have split in their interpretation of Carey. The Fifth

Circuit has held that only nominal damages are allowable for an infringement of first amend-

ment liberty where no proof of actual injury exists. Familias Unidas v. Briscoe, 619 F.2d

391 (5th Cir. 1980). In contrast, the Eighth Circuit allowed a damage award for physical
harm, emotional and mental suffering, and for the violation of substantive constitutional

rights of liberty and due process of law, noting that part of the injury was the loss of

these rights themselves. Herrera v. Valentine, 653 F.2d 1220, 1227-28 (8th Cir. 1981). When
compensatory awards are made, the Eighth Circuit has distinguished the substantive rights

involved in the case before it from the procedural rights involved in Carey. See id. at 1230;

see generally Note, Damage Awards for Constitutional Torts: A Reconsideration After Carey
v. Piphus, 93 Harv. L. Rev. 966 (1980).

220682 F.2d at 660.



106 INDIANA LAW REVIEW [Vol. 17:79

to Lash in his individual capacity, the question of nominal or compen-

satory damages becomes moot.

2. Disparate Treatment in Prisoner Security Status.—In Kincaid v.
Duckworth, 121 an inmate brought a civil rights action alleging deprivation

of his equal protection and due process rights. Allegedly, an Indiana

Department of Correction's regulation arbitrarily treated inmates convicted

of murder and sentenced to life imprisonment differently and more harshly

than inmates convicted of murder and sentenced to a term of years under

the 1976 revised Indiana statute.
222

Kincaid, who was convicted in 1975 and given a life sentence, was
assigned the maximum security status. Under the department regulation,
Kincaid was not entitled to seek a lesser security status until 1981. 223

However, an individual convicted of the same crime in late 1977 would

have been able to seek the lesser status in 1979224 because the individual

could not have been given a life sentence since the revised criminal code

repealed the life imprisonment sentence. 225

Neither the district court nor the court of appeals found the disparate

treatment of inmates to be a deprivation of equal protection. Both courts

noted that classification of inmates is a matter of prison administration

and management and that federal courts are reluctant to interfere with

such decisions except in extreme circumstances. 226

Still, statutory classifications which result in disparate treatment of

similarly situated groups violate the equal protection clause if not rationally

related to a legitimate articulated state purpose.
227 The majority in Kin-

caid accepted the "well known and universally recognized prison security

22 '689 F.2d 702 (7th Cir. 1982), cert, denied, 103 S. Ct. 2126 (1983).
222The plaintiff was sentenced to life in prison on July 11, 1975 under Ind. Code §

35-13-4-l(a)(1976) (repealed effective October 1, 1977) (originally enacted by Act of Mar.

8, 1941, ch. 148, § 1, 1941 Ind. Acts 447). The 1976 revision of the Indiana Criminal Code
repealed title 35, article 13 of the Code. Act of Feb. 25, 1976, Pub. L. No. 148, § 24,

1976 Ind. Acts 718, 816. The 1976 revision also amended title 35 by adding a new article

50, id. § 8, 1976 Ind. Acts at 788. The effective date of this revision was to have been

July 1, 1977, id. § 28, 1976 Ind. Acts at 817, but before that date title 35 was re-amended,

essentially by amending Public Law Number 148. See Act of Apr. 12, 1977, Pub. L. No.
340, 1977 Ind. Acts 1533. The life imprisonment sentence having been repealed in 1976,

the 1977 revision of the criminal code then substituted for it the term of years. Id. § 116,

1977 Ind. Acts at 1593 (presently codified at Ind. Code § 35-50-2-3 (1982)). The 1977 revi-
sion of the criminal code became effective October 1, 1977. Id. §§ 151, 152, 1977 Ind.

Acts at 1611.

"'Department of Correction Regulation IV (c)(1) provided that inmates serving a life

sentence would not be eligible for minimun security status until after six years from date
of admission. 689 F.2d at 703.

224
Ind. Code § 35-4. l-5-3(c) (1982) vests discretion with the department in permitting

a change of security status of persons sentenced for murder two years after date of admission.
225See supra note 221.
226689 F.2d at 704.
227 McGinnis v. Royster, 410 U.S. 263, 270 (1973).



1 984] SUR VEY—CONSTITUT/ONAL LAW 1 07

risks attending life termers" as rational reasons to justify the four year

differential for eligibility of change of security status. 228

Lamenting the lack of clearly articulated reasons for the disparate

treatment, the dissent questioned whether the security risks attending life

termers who have been convicted of murder are any greater than the secur-
ity risk attending specific term inmates who have been convicted of the
same crime yet who are treated differently by the regulation. 229 If, in fact,
a rational basis exists it should be articulated in the record and not dis-

guised under the foil of "inherent differences" between life termers and

those sentenced for a term of years. The majority's determination ap-

pears especially harsh in respect that the plaintiff was not seeking an

automatic right to attain the lesser status, but only the eligibility to seek

that status.
230

As to the prisoner's due process claim, the majority found no pro-
tected liberty interest of which the plaintiff was deprived. 231 No Indiana
state law or regulation creates the right to a particular security classifica-

tion. That classification rests solely within the discretion of the depart-

ment. Thus, Kincaid's expectation of eligibility for reclassification, gained

from what the majority termed a "misplaced" reliance upon the depart-
ment's reproduction of regulations in the inmate's handbook, was too

insubstantial to rise to the level of due process protection. 232

3. Appointed Counsel in Civil Proceedings.—In two cases during the
survey period, 233 the necessity of appointing counsel for indigent civil

litigants in order to meet the dictates of due process was evaluated,

resulting in the appointment of counsel in both instances.

In Kennedy v. Wood, 234 the Indiana Court of Appeals required the
appointment of counsel for indigent defendants in paternity actions in-

itiated as a result of Title IV-D of the Federal Social Security Act. 235 The

court relied on the recent Supreme Court decision in Lassiter v. Depart-

ment of Social Services,
236

regarding the appointment of counsel in parental

228689 F.2d at 704.
229

Id. at 706 (Pell, J., dissenting).
2i0

Id. at 707.
2i,

Id. at 704.
23 2

Id. at 704-05.
233Kennedy v. Wood, 439 N.E.2d 1367 (Ind. Ct. App. 1982); Merritt v. Faulkner, 697

F.2d 761 (7th Cir. 1983), petition for cert, filed, 52 U.S.L.W. 3121 (U.S. July 2, 1983) (No.

83-153).

234
439 N.E.2d 1367 (Ind. Ct. App. 1982).

235
Title IV-D of the Social Security Act requires states to create or designate an agency

to obtain and enforce support orders for children receiving AFDC payments, and to establish
paternity, where necessary. 42 U.S.C. §§ 651-60 (1976); see Ind. Code §§ 12-1-6.1-1 to
-21 (1982). Under the Indiana scheme, the state Department of Public Welfare contracts
with county prosecuting attorneys to bring paternity actions in the name of recipients of
public assistance. Ind. Code § 12-1-6.1-10 (1982). See 439 N.E.2d at 1368-69.

236452 U.S. 18 (1981).



108 INDIANA LAW REVIEW [Vol. 17:79

rights termination proceedings, for the proper balancing test to be ap-

plied. As stated in Lassiter, there is a presumption against the right to

appointed counsel in the absence of at least a potential deprivation of

physical liberty.
237 Against this presumption are to be weighed the three

factors, enumerated in Mathews v. Eldridge, 2 ™ to be used in evaluating

the mandates of procedural due process: "the private interests at stake,

the government's interest, and the risk that the procedures used will lead

to erroneous decisions." 239

Because no direct deprivation of liberty is involved in a civil pater-

nity action, the court invoked the presumption against appointed counsel

and weighed that against the Mathews factors. Citing Little v. Streater, 240

the court acknowledged the compelling private interests of both the putative

father and the child involved in the creation of the parent-child relation-

ship. The court of appeals considered not only the emotional, medical,

and financial effects, but also the potential criminal liability for non-

support which could be imposed on both the father 241 and the child. 242

The state's interest, on the other hand, were seen as primarily financial. 243

The court found that the state's financial interest, while legitimate, was

"hardly significant enough to overcome the compelling private interests

of the putative father and child." 244

Finally, the risk of error in the absence of appointed counsel for in-

digent defendants was great in light of the state's intervention on behalf

of the mother245 and in light of the indigent defendant's constitutional

right to a free blood grouping test, 246 which might be rendered mean-

ingless without the aid of counsel. Thus, the private interests of the putative

father and the child and the likelihood of an erroneous determination

of paternity under current procedures were held to outweigh the state's

financial interests and to require the appointment of free counsel despite

237
Id. at 25.

238424 U.S. 319 (1976).
239452 U.S. at 28 (citing Mathews, 424 U.S. at 335).
240
452 U.S. 1 (1981)(holding that an indigent defendant in a paternity action initiated

because of the dictates of Title IV-D has a right to a free blood grouping test).
24l 439 N.E.2d at 1370 (citing Ind. Code § 35-46-1-5 (1982)).
242
439 N.E.2d at 1370-71 (citing Ind. Code § 35-46-1-7 (1982)).

243
439 N.E.2d at 1371.

244
/tf. (footnote omitted).

24
'Id.

li6
Id. at 1372. At this stage of the opinion, i.e., the determination of the putative

father's rights to indigent appointed counsel in a paternity proceeding, the court of appeals

relied on Little v. Streater, 452 U.S. 1 (1981) for the proposition that an indigent putative
father has a constitutional right to a free blood grouping test. 439 N.E.2d at 1372. Later
in the opinion, deciding the issue because it was likely to recur in the retrial of the case,
the court established that the right to such a test exists in Indiana for indigent defendants

in paternity proceedings, relying again on Little, and on Anderson v. Jacobs, 68 Ohio St.
2d 67, 428 N.E.2d 419 (1981). 439 N.E.2d at 1373-74.



1 984] SUR VE Y—CONSTITUTION'A L LA W
\ 09

the presumption stated in Lassiter. 247 The court went even further to pro-
tect the rights of the putative father by holding that due process requires
that the court advise any indigent defendant in this situation of his right
to appointed counsel, rather than merely responding to articulated requests
for the appointment of counsel. 248

In the second case finding the right to appointed counsel, Merrill v.
Faulkner, 2 ™ the Seventh Circuit Court of Appeals reversed the District
Court for the Northern District of Indiana and required the appointment
of counsel for a blind, indigent prisoner pursuing a section 1983 action

against prison officials. 250 In so doing, the court considered the five fac-

tors set forth in the 1981 case of Mac!in v. Freake251 to determine whether,
in the exercise of its discretion, a trial court's refusal to appoint counsel

to an indigent civil litigant "would result in fundamental unfairness im-
pinging on due process rights." 252 These factors are:

( 1 ) [W]hether the merits of the indigent's claim are colorable;

(2) the ability of the indigent plaintiff to investigate crucial facts;

( 3 ) whether the nature of the evidence indicates that the truth
will more likely be exposed where both sides are represented
by counsel;

247439 N.E.2d at 1372.
24
*Id. at 1372-73. Two other states have, since Lassiter, evaluated their obligation to

provide appointed counsel to indigent putative fathers under the same circumstances as those

presented in Kennedy, reaching opposite results. In State ex rel. Hamilton v. Snodgrass,

325 N.W.2d 740 (Iowa 1982), the Iowa Supreme Court applied the Lassiter analysis, but
found that the Mathews factors did not outweigh the presumption against appointed counsel,

primarily because it believed that the right to a free blood grouping test reduced the risk

of error to such a degree that the presence of counsel would not appreciably affect the

outcome of paternity actions. Id. at 743. Four justices dissented, using essentially the

same analysis as the Indiana Court of Appeals. Id. at 744 (Uhlenhopp, J., dissenting).

In contrast, the Pennsylvania Superior Court, in Corra v. Coll, 451 A.2d 480 (Pa.

Super. Ct. 1982), again applying the same Lassiter/Mathews test, found that due process

did require the right to appointed counsel. Their analysis differed somewhat from that of

the Indiana Court of Appeals. First, because of the potentiality of a loss of liberty through

future criminal contempt or non-support proceedings, the Pennsylvania court presumed the

existence of a right to counsel, id. at 484-85, rather than presuming no right to counsel.

Also, the Pennsylvania court, in assessing the state's interests under the second prong of

the Mathews test, found that the state as well as the putative father and child had an in-

terest in an accurate determination of paternity which would be well-served by the appoint-

ment of counsel for indigent defendents. Id. at 485.
249697 F.2d 761 (7th Cir. 1983), petition for cert, filed, 52 U.S.L.W. 3121 (U.S. July

2, 1983) (No. 83-153).
250697 F.2d at 766.
25l 650 F.2d 885 (7th Cir. 1981) (per curiam).
252 LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967), cited in McKeever v.

Israel, 689 F.2d 1315, 1320 (7th Cir. 1982); Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.

1981) (per curiam); Heidelberg v. Hammer, 577 F.2d 429, 431 (7th Cir. 1978).



1 10 INDIANA LA W REVIEW [Vol. 17:79

(4) the capability of the indigent litigant to present the case; and

(5) the complexity of the legal issues raised by the complaint. 253

The Merritt case clarified the factual circumstances which should merit

appointment of counsel, in that the failure to appoint counsel for the

plaintiff was considered a clear abuse of discretion. 254 In Maclin, the plain-

tiff was a paraplegic who, like Merritt, sued prison officials for deliberate

indifference to his serious medical needs in violation of the eighth

amendment. 255 In a 1982 case, McKeever v. Israel, 156 the Seventh Circuit
Court of Appeals again required the appointment of counsel for an in-

digent plaintiff challenging a prison policy limiting the amount of mail

a prisoner could take to and from court appearances. 257 McKeever also

specified medical problems as the basis for his request for counsel. 258 Com-
paring these two cases with the Merritt case, a pattern emerges which

indicates the type of civil litigant whom the Seventh Circuit deems en-
titled to court-appointed counsel.

The court clearly placed some weight on the factor of incarceration

as reducing the ability of the litigant to investigate facts crucial to his

case, but much more important was the presence of a physical handicap.
For Judge Cudahy, Merritt's blindness was a decisive consideration. 259

In addition, all three cases involved complex medical and/or legal

questions.

Judge Posner, in his dissent, re-asserted his belief that the Seventh

Circuit is moving toward routine appointment of counsel in prisoner civil

rights cases.
260

If prisoner civil rights cases are likely to present complex

questions of constitutional law pursued by incarcerated persons who have
virtually no ability to investigate their cases, Judge Posner's assessment

of the current trend in this circuit may be completely accurate.
4. Administrative Segregation.—In Love v. Duckworth 261 the United

State District Court for the Northern District of Indiana held that the

253697 F.2d 764 (citing Maclin, 650 F.2d at 887-89).
254697 F.2d at 766.
255650 F.2d at 886.
256689 F.2d 1315 (7th Cir. 1982).
2S1

Id. at 1316.
25
°Id. at 1321 and n.13.

259697 F.2d at 769 (Cudahy, J., concurring).
260

Id. at 770-71 (Posner, J., dissenting); see McKeever, 689 F.2d at 1325 (Posner, J.,
dissenting). Much of Judge Posner's dissent was based on an economic analysis of the case.
He reasoned that "a prisoner who has a good damages suit should be able to hire a compe-
tent lawyer and ... by making the prisoner go this route we subject the probable merit
of his case to the test of the market." 697 F.2d at 769. Judge Cudahy concurred separately
specifically to comment on Judge Posner's analysis: "Not entirely facetiously, it occurs to
me that the barriers to entry into the prison litigation market might be very high. . . .
Hence, I am not prepared to consign to the verdict of the marketplace the issue of prisoner
representation; and this is, of course, not the law." Id. at 768-69.

26 '554 F. Supp. 1067 (N.D. Ind. 1983).



1984] SURVEY—CONSTITUTIONAL LAW II)

decision whether to place an Indiana prisoner in administrative segrega-

tion does not implicate any liberty interest protected by the due process

clause of the fourteenth amendment. The court found no liberty interest

because an Indiana prisoner has no legitimate, non-unilateral expectation

that he will remain in the general prison population absent the occur-

rence of certain specified events.
262 The court found that the Indiana pro-

cedure permitted placement in administrative segregation at the discretion

of prison officials rather than upon the happening of certain events or

the finding of certain objective criteria. 263 The Indiana procedure was

deemed to be discretionary and "for all practical purposes identical to

the basis for inter-institutional transfers considered in Meachum v.
Fano" 26A found by the United States Supreme Court to implicate no liberty
interest.

265 The court distinguished the Indiana procedure from the Penn-

sylvania procedure in Hewitt v. Helms, 266 held by the United States Court

of Appeals for the Third Circuit to create a liberty interest because Penn-

sylvania prisoners could be placed in administrative segregation only upon
the finding of specified objective criteria. 267

The Love court further found that even if a liberty interest in re-
maining in the general prison population did exist, the prisoner received

all the process due him. He appeared personally before the Classification
Committee and was given the opportunity to be represented by a lay ad-

vocate and call witnesses on his own behalf. 268

No mention was made in the opinion of the Indiana statute govern-
ing the decision to place a prisoner in administrataive segregation.

An offender may be involuntarily segregated from the general
population of a facility or program if the department first finds

that segregation is necessary for the offender's own physical safety
or the physical safety of others. 269

Although 'he language of the statute is not as clear as the "shall . . .

must" language of the statute in Hewitt, 210 it does require a finding by

the Department of Corrections of one of only two possible justifications

262
Id. at 1070.

261
Id.

264
Id.

265Meachum v. Fano, 427 U.S. 215 (1976). The decision in Meachum ultimately rested
upon the prison officials' "discretion to transfer [a prisoner] for whatever reason or for

no reason at all." Id. at 228. The reasons for inter-institutional transfers "often involve

no more than informed predictions as to what would best serve institutional security or

the safety and welfare of the inmate." Id. at 225, quoted in Love, 554 F. Supp. at 1070.
266

655 F.2d 487 (3rd Cir. 1981), rev'd on other grounds, 103 S. Ct. 864 (1983).
267

655 F.2d at 497.
268 554 F. Supp. at 1070-71 (citing Owen v. Heyne, 473 F. Supp. 345 (N.D. Ind. 1978),

aff'd, 605 F.2d 559 (7th Cir. 1979)).
269 Ind. Code § 11-10-1-7 (1982) (emphasis added).
210See 103 S. Ct. at 871 n.6; see infra text accompanying note 275.



112 INDIANA LAW REVIEW [Vol. 17:79

for segregation. As such, the statute would appear to create a non-

unilateral expectation on the part of Indiana prisoners that they will re-

main in the general prison poplulation unless the required findings are

made.

Nevertheless, the result of Love was borne out one month later by
the Supreme Court of the United States in Hewitt v. Helms. 21 ] The Court

held that prior decisions compelled the conclusion that the due process

clause does not, of itself, create a liberty interest in remaining in the general

prison population.
272 "As long as the conditions or degree of confine-

ment to which the prisoner is subjected is within the sentence imposed

upon him and is not otherwise violative of the Constitution, the Due Pro-
cess Clause does not in itself subject an inmate's treatment by prison

authorities to judicial oversight."
273 Because "administrative segregation

is the sort of confinement that inmates should reasonably anticipate receiv-

ing at some point in their incarceration," 274 it is within the sentence im-

posed and violates no liberty interest. The Court did, however, agree with

the Third Circuit Court of Appeals that the state of Pennsylvania had

created a liberty interest in confinement within the general prison popula-

tion through the use of "shall . . . must" language in its procedural

guidelines and through the requirement of findings of specified substan-

tive predicates, such as "the need for control," or "the threat of a serious

disturbance." 275

Even in light of the existence of such a liberty interest, the Court

held that the prisoner had received all the process due him by receiving
notice of the charges against him and by having the opportunity to have

his version reported as part of the record. 276 The Court concluded that,

"an informal, nonadversary evidentiary review [is] sufficient both for the

decision that an inmate represents a security threat and the decision to

confine an inmate to administrative segregation pending completion of

an investigation into misconduct charges against him." 277

In light of the Hewitt decision, the result in Love appears quite sound.

Although there is a strong argument that Indiana has statutorily created

a liberty interst in remaining in the general prison population, 278 the court's

conclusion that in any case the prisoner received all the process due him
is unquestionably correct as the procedure used afforded him greater pro-

cedural safeguards than those endorsed by the Supreme Court in Hewitt.

5. Naming of Illegitimates.—In Doe v. Hancock County Board of

27,
103 S. Ct. 864 (1983).

212
Id. at 869-70.

211
Id. at 869 (quoting Montayne v. Haymes, 427 U.S. 236, 242 (1976)).

274
103 S. Ct. at 870.

21
'Id. at 871.

21f
>Id. at 874.

277
Id.

21
"See supra text accompanying notes 269-70.



1 984] SUR VEY—CONSTITUTIONA L LAW 113

Health, 11 * the Supreme Court of Indiana avoided, on procedural

grounds, 280 a challenge to Indiana Code section 16-1-16-15, which requires
that an illegitimate child be registered under his mother's surname. 281 The

parents, though unmarried, lived together and wished to give their child

the father's surname. The parents argued that the restriction on naming

illegitimate children violated their constitutional rights to privacy and

substantive due process, their right to participate freely in the selection

of their child's name, and their right to equal protection. 282

In his dissent to the dismissal of Doe, Justice Hunter pointed to both

federal
283 and state court 284 decisions finding that the naming of one's

child is a constitutionally protected right with which the state cannot ar-

bitrarily interfere. Also, despite the fact that the statute made classifica-
tions based on illegitimacy and gender, which usually require a higher

level of scrutiny, Justice Hunter found it necessary to apply only a low-

level rational basis scrutiny to reject the state's asserted reasons for limiting

the naming of illegitimate children. 285 He dismissed as meritless the state's
interest in preventing fraud, tracing the child's "changing status," and

protecting the confidentiality of the child's records. Nor were the state's
interests in promoting marriage and family life, and in keeping vital

statistics sufficient, in the opinion of Justice Hunter, to override the

parents' right to name their child. 286 Justice Hunter would have found
Indiana Code section 16-1-16-15 unconstitutional; 287 however, because of
the procedural dismissal, this statute remains in effect.

279
436 N.E.2d 791 (Ind. 1982).

280
Appellants timely perfected their appeal; however, appellees (Hancock County Board

of Health) filed their brief in the Indiana Court of Appeals one day late. The court refused
to accept the belated filing of the brief, resulting in the effective dismissal of the case under

Ind. R. App. P. 8.1(A). Appellants filed a petition to transfer to the Supreme Court of
Indiana. The petition was granted and the case dismissed. Justice Hunter dissented on the

ground that dismissal "effectively deprives the appellants of their constitutional rights of
appellate review" under the Indiana Constitution, article III, section 6. Id. at 791 (Hunter,

J., dissenting to grant of petition to transfer and dismissal). Cf Whittaker v. Burgauer,
144 Ind. App. 106, 111, 244 N.E.2d 445, 447 (1969) ("It is our opinion that dismissal

of a cause is proper only when this court does not have jurisdiction of an appeal."). For

a further discussion of this case, see Harvey, Civil Procedure and Jurisdiction, 1983 Survey

of Recent Developments in Indiana Law, 17 Ind. L. Rev. 55, 75 (1984).
28 Tnd. Code § 16-1-16-15 (1982).
282436 N.E.2d at 792 (Hunter, J., dissenting to grant of petition to transfer and dismissal).
2ii

Id. at 793 (citing O'Brien v. Tilson, 523 F. Supp. 494 (E.D.N.C. 1981); Jech v.

Burch, 466 F. Supp. 714 (D. Hawaii 1979)).
284
436 N.E.2d at 793 (Hunter, J., dissenting to grant of petition to transfer and dismissal)

(citing Jones v. McDowell, 53 N.C. App. 434, 281 S.E.2d 192 (1981); D'Ambrosio v. Rizzo,

425 N.E.2d 369 (Mass. App. 1981); Doe v. Dunning, 87 Wash. 2d 50, 549 P. 2d 1 (1976)).
285436 N.E.2d at 794 (Hunter, J., dissenting to grant of petition to transfer and dismissal).
2i6

Id. at 794-96.
2H1

Id. at 796.