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Sunday, September 27, 2009
Ind. Courts - "Indiana small claims courts a return to debtors' prison?"
An important story today in the Evansville Courier & Press, reported by Roberta Heinman ("Special to the Courier & Press" - see ILB footnote):
Valisha Fleming couldn't believe what she saw happening recently in Vanderburgh County's Small Claims Court: A disabled woman with three children at home was sentenced to 30 days in jail for falling $110 behind in court-ordered payments on a debt.There is much more to the story. It concludes:Deputies were called into the courtroom, handcuffed the crying woman, patted her down in the hallway and were going to take her away. She did not have an attorney.
"It just wasn't right," Fleming said.
Fleming said she had never met the woman, Deidre Carter, but she gave $100 of her own money to prevent the woman from being jailed.
The judge in the case, Superior Court Magistrate Richard D'Amour, said Carter was not sentenced for failing to pay a debt, but for failing to obey an earlier court order to pay it. "It may appear to you to be a fine line," D'Amour said, "but it makes a difference."
Other Vanderburgh Superior Court judges said they agree. They contend the court is allowed to sentence and threaten to sentence people to jail if they fail to comply with court orders to pay their debts.
Katherine Rybak, attorney with Indiana Legal Services in Evansville, has long argued that the court's practice is unconstitutional. "No imprisonment for debt means no imprisonment for debt even when the debtor has the ability to pay," she said. Her appeals of the Carter case and a similar case in Perry County have sparked some national discussion over whether the local courts are bringing back a "debtors' prison."
Pay up or go to jail
In the Perry County case, Circuit Judge M. Lucy Goffinet ordered a man to pay $25 a month on a debt or go to jail. The Indiana Court of Appeals reversed her ruling, saying that in such cases, "Even the threat of imprisonment is erroneous." [ILB - here is the summary of the COA decision, originally issued 6/22/09 as NFP]
"Apparently in the southern counties of Indiana, judges are not in sympathy with our state constitution's ban on imprisonment for debt," wrote Alan W. White, a professor of consumer law at Valparaiso University.
He said jailing or threatening to jail people for failure to pay debts "is absolutely not a routine practice anywhere else in the country."
White learned about the cases in a paper written by one of his students, Laura Harris, who spent the summer working as an intern with Rybak in area courts.
White then wrote about the cases in the CL&P Blog, a group blog by lawyers and law professors who practice, teach and write about consumer law and policy across the country. From there it was picked up by Marlys Harris, the consumer reporter on CBS Moneywatch.com. Her report on the cases, "Could Debtors' Prison Make a Comeback?" was noticed by officials at the Indiana AARP, which has sent a reporter to review the cases. [Here is the AARP story.]
In response, Vanderburgh Superior Court Judges Robert Pigman and Robert Tornatta said they're going to ask the Indiana Judicial Center to look at how other courts throughout the state are handling such cases, but they said they're confident the local practice is within the court's authority.
Rybak proposed changes early this year in a letter she submitted for publication in the Evansville Bar Association's newsletter, but it was rejected for publication on grounds that it was "editorial comment." The Bar Association has announced that the newsletter will include editorial comment only by the bar's president. [Note: The ILB would be pleased to publish this letter.]The C&P also has this side-bar, which includes testimony from the Carter hearing described at the beginning of the main story.Pigman, who is chief judge in Superior Court, said on the other hand that he has "heard attorneys on both sides compliment us on how efficient this (Small Claims process) is and what a well-run court this is."
"You have to look at each case," he added. "The plaintiff (creditor) by law is entitled to that money. We have to make that finding." And when a debtor doesn't pay, "the difficult decision we face is the difference in can and won't. Is the person defying a court order? ... I've heard attorneys say we're more inclined to rule in favor of the person who owes."
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*A search shows that Ms. Heinman is likely "League of Women Voters President Roberta Heiman," shown in this May 30, 2008 photo standing next to the Chief Justice.
Posted by Marcia Oddi on September 27, 2009 10:00 AM
Posted to Indiana Courts