In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1478
E STATE OF C HRISTOPHER A. M ORELAND,
Plaintiff-Appellant,
v.
E RICH D IETER and M ICHAEL S AWDON,
Defendants,
and
S T. JOSEPH C OUNTY B OARD OF C OMMISSIONERS,
S T. JOSEPH C OUNTY, et al.,
Third-Party Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 99-cv-607—Philip P. Simon, Judge.
A RGUED F EBRUARY 9, 2009—D ECIDED A UGUST 11, 2009
2 No. 08-1478
Before P OSNER and S YKES, Circuit Judges, and D OW,
District Judge.
D OW, District Judge. Plaintiff-Appellant, the Estate
of Christopher Moreland (the “Estate”), filed a motion
for a writ of execution to enforce a judgment against St.
Joseph County, Indiana and its Board of Commissioners
(the “County”), pursuant to Indiana Code § 34-13-4-1
and Rule 69 of the Federal Rules of Civil Procedure. The
district court denied the Estate’s motion. Because we
conclude that the state law that the Estate seeks to
invoke was not intended to apply retroactively, we
affirm the order of the district court.
I. Background
The Estate has appeared before this Court twice, both
stemming from the beating of Christopher Moreland. In
1997, Moreland was detained in St. Joseph County’s jail
on a drunk driving charge. Erich Dieter and Michael
Sawdon, officers at the jail, took part in a beating of
Moreland that would result in the imposition of massive
civil liability against them. Its more immediate effect
was Moreland’s death.
The details of the assault are reported in Estate of More-
land v. Dieter, 395 F.3d 747 (7th Cir. 2005). For present
The Honorable Robert M. Dow, Jr., of the United States
District Court for the Northern District of Illinois, sitting by
designation.
No. 08-1478 3
purposes, we note only that Moreland’s beating and
subsequent denial of medical care spanned multiple
floors of the jail, lasted several hours, and was ruthless.
Moreland was physically restrained for much of the
incident. Ultimately, he was placed (unconscious) into
the jail’s “drunk tank” and left for dead.
Pursuant to 42 U.S.C. § 1983, the Estate filed suit against
Dieter, Sawdon, and a third officer, Paul Moffa,
alleging violations of Moreland’s constitutional rights. The
County paid for the officers’ defenses. In May 2002, a jury
returned a verdict against Dieter and Sawdon and deter-
mined that they were liable for $56.5 million in damages
($29 million of which were compensatory). The jury
deadlocked, however, on the claims against Moffa; a
new trial was held, and a jury returned a verdict in his
favor in September 2003. This Court subsequently
upheld the verdict against Dieter and Sawdon. Estate
of Moreland, 395 F.3d at 761.
On July 1, 2003—prior to the Moffa retrial, but more
than a year after the jury returned the verdict against
Dieter and Sawdon, and nearly ten months after the
County stopped paying their legal bills—an amendment
to the Indiana Code took effect. See 2003 Ind. Acts 1193,
1203-04 (the “2003 Amendment” or the “Amendment”).
As discussed below, the 2003 Amendment made changes
to Indiana’s statutory scheme governing indemnifica-
tion by “governmental entities” for the conduct of their
employees. Critically, the Amendment converted a discret-
ionary indemnification provision into one that is manda-
tory—although only for non-punitive damages and only
4 No. 08-1478
when the governmental entity “defends or has the op-
portunity to defend” the employee.
In 2007, the Estate sought to invoke the 2003 Amend-
ment, filing with the district court a motion for a writ of
execution to collect against “St. Joseph County and/or its
Board of Commissioners” on the Dieter-Sawdon judg-
ment. The Estate argued that the 2003 Amendment re-
quired St. Joseph County to pay the $29 million in compen-
satory damages for which Dieter and Sawdon were
found liable. The district court denied the motion, and
this appeal followed.
II. Indiana Code § 34-13-4-1 1
Section 34-13-4-1 of the Indiana Code relates to indemni-
fication for civil rights claims against public employees.
It provides, with the key language in italics:
If a present or former public employee, including a mem-
ber of a board, a committee, a commission, an author-
ity, or another instrumentality of a governmental
entity, is or could be subject to personal civil liability for
a loss occurring because of a noncriminal act or omis-
sion within the scope of the public employee’s employment
which violates the civil rights laws of the United
States, the governmental entity (when the governmental
entity defends or has the opportunity to defend the public
1
Indiana Code provisions are set out by their title number,
article number, chapter number, and then section number.
Hence, Ind. Code § 34-13-4-1 refers to Title 34, Article 13,
Chapter 4, Section 1.
No. 08-1478 5
employee) shall, subject to IC 34-13-3-4, IC 34-13-3-14, IC
34-13-3-15, and IC 34-13-3-16, pay:
(1) any judgment (other than for punitive damages)
of the claim or suit; or
(2) any judgment for punitive damages, compro-
mise, or settlement of the claim or suit if; . . .
[the statutorily specified officer or governing body]
determines that paying the judgment for punitive
damages, compromise, or settlement is in the best
interest of the governmental entity. The govern-
mental entity shall also pay all costs and fees incurred
by or on behalf of a public employee in defense of
the claim or suit.
Ind. Code § 34-13-4-1 (emphasis added).
After a relatively stable existence,2 Section 1 was ex-
panded by the 2003 Amendment. As amended, the provi-
2
Before 1998, the operative provision was found at Ind. Code
§ 34-4-16.7-1 (1976). The General Assembly recodified it in 1998
at Ind. Code § 34-13-4-1. See 1998 Ind. Acts 62. The recodified
provision was nearly identical to its predecessor, but omitted
some language that clarified who is an employee under the
law (it had specifically “include[d] a member of a board,
a committee, a commission, an authority, or another instrumen-
tality of a governmental entity”) and added two sections that
are not germane to the issues in this case. In 2001, the General
Assembly reinstated the language that clarified who qualifies
as an employee (see 2001 Ind. Acts 1256, 1258-59) but other-
wise left the statutory scheme intact. Thus, the 2003 Amendment
brought about the only meaningful changes in more than a
quarter century to the provision that is at issue.
6 No. 08-1478
sion has two noteworthy features. First, in certain cases
and subject to a $300,000 cap,3 the code requires a gov-
ernmental entity to indemnify its public employees for
compensatory damages growing out of their noncriminal
acts, where the governmental entity “defends or has the
opportunity to defend the public employee.” Under the
prior version of the Act, the governmental entity—no
matter how active it was in its employee’s defense—could
decide whether or not to indemnify its employee. See
Ind. Code § 34-13-4-1 (2001 supp.); City of Muncie v.
Peters, 709 N.E.2d 50, 56 (Ind. Ct. App. 1999) (citing
Kapitan v. City of Gary, Ind., 12 F.3d 678, 680 (7th Cir. 1993)).
The second noteworthy feature of amended Section 1 is
that it keeps punitive damages and settlements on the
same footing as all damages had been under prior
law. That is, while indemnification for compensatory
damages is in some cases mandatory, indemnification for
punitive damages and settlements remains a matter of
grace: the governmental entity must foot the bill only if
the pertinent officer or governing body “determines that
paying . . . is in the best interest of the governmental
entity.”
As we discuss in greater depth in Part III, infra, the at-
times mandatory payment of judgments combined with
discretionary payment of settlements creates a regime
3
The $300,000 cap is incorporated by reference from Ind. Code
§ 34-13-3-4. The Estate argues that the $300,000 cap does not
apply, but the Estate’s restrictive interpretation would read
the cross-reference out of the code.
No. 08-1478 7
which allows governmental entities to decide whether
they would rather pay a settlement or risk a judgment.4
III. Analysis
The district court ruled that the 2003 Amendment to
Section 1 did not apply to Dieter and Sawdon, concluding
that the Amendment was not intended to apply retroac-
tively. Indiana Code § 34-13-4-1 has not been exten-
sively interpreted by the Indiana courts, and we review
the district court’s interpretation of the Indiana Code
de novo. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991);
United States v. Rosenbohm, 564 F.3d 820, 822 (7th Cir. 2009).
In Indiana, the lodestar of statutory interpretation is
legislative intent, and the plain language of the statute
is the “best evidence of . . . [that] intent.” Cubel v. Cubel, 876
N.E.2d 1117, 1120 (Ind. 2007). Generally, the words
in a statute should be given their ordinary meaning.
While courts should try to give effect to each word in a
statute, they ought not to do so myopically. Instead, “[t]he
statute should be examined as a whole, avoiding both
excessive reliance on strict literal meaning and selective
reading of individual words.” Id.; Tormoehlen v. State, 848
N.E.2d 326, 330 (Ind. Ct. App. 2006) (noting that “legisla-
tive intent as ascertained from the whole prevails over the
strict, literal meaning of any word or term used” in a
statute).
4
Ind. Code § 34-13-3-14, incorporated into Section 34-13-4-1 by
reference, allows the governor to “compromise or settle a claim
or suit brought against the state or its employees.”
8 No. 08-1478
Indiana courts presume that the General Assembly’s
laws apply prospectively only, unless the statute con-
tains explicit language mandating retroactive applica-
tion. State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005) (“Stat-
utes are to be given prospective effect only, unless the
legislature unequivocally and unambiguously intended
retrospective effect as well.”); see also Landgraf v. USI Film
Prods., 511 U.S. 244, 286 (1994) (Scalia, J., concurring). The
presumption against retroactivity is deeply rooted. See,
e.g., Citizens’ State Bank of Noblesville v. Julian, 55 N.E. 1007,
1011 (Ind. 1899); United States v. Heth, 7 U.S. (3 Cranch) 399,
408 (1806) (laws should be applied prospectively unless
“the words are too imperious to admit of a different
construction”).
An oft-cited (and occasionally invoked) exception to the
general rule is that remedial statutes—those “intended to
cure a defect or mischief that existed in a prior statute”
(Bourbon Mini-Mart, Inc. v. Gast Fuel & Svcs., Inc., 783
N.E.2d 253, 260 (Ind. 2003) (retroactive application to
certain state environmental laws))—will be applied
retroactively to carry out the statute’s purpose “unless to
do so violates a vested right or constitutional guaranty.”
Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002) (retroactive
application where a legislative amendment was an ap-
parent corrective to a judicial decision). In the end, how-
ever, legislative intent remains the overriding goal of
the retroactivity analysis, just as it is for statutory inter-
pretation more generally. Bourbon Mini-Mart, 783 N.E.2d
at 260; Cubel, 876 N.E.2d at 1120.
The Estate argues that the 2003 Amendment applies
to the Dieter-Sawdon judgment because (1) the inter-
No. 08-1478 9
pretation that it seeks is not retroactive at all, (2) the
language of the Amendment requires retroactive ap-
plication, and (3) the Amendment was a remedial statute
whose purpose requires retroactive application. We
examine each argument in turn.
A. The Estate Seeks a Retroactive Interpretation
The Estate’s most ambitious argument is that applica-
tion of the 2003 Amendment to this case would not be
retroactive at all because there was no final judgment at
the time that the 2003 Amendment took effect.5 The
final judgment cut-off rule that the Estate proposes,
however, is not one that Indiana courts have adopted as
a bright line rule in their retroactivity analysis. Rather
the retroactivity inquiry centers on whether application
of a new rule will “attach[] new legal consequences to
events completed before [the law’s] enactment.” Landgraf,
511 U.S. at 269-70; Stewart v. Marson Constr. Co., 191
N.E.2d 320, 321 (Ind. 1963). Plainly, that is what the
Estate seeks to do in this case. Prior to the enactment of
the 2003 Amendment, a governmental entity was
required to “pay all costs and fees incurred by or on behalf
of a public employee in defense of [a] claim or suit” (Ind.
Code § 34-13-4-1 (2001 supp.)), but the governmental
entity did not have to pay a judgment unless it decided
that payment was in its best interest. Id. Thus, under the
5
As noted above, while the jury returned a verdict against
Dieter and Sawdon in May 2002, a final judgment was not
entered until after Moffa’s second trial in September 2003.
10 No. 08-1478
law as it existed at the time that the County elected to
defend Dieter and Sawdon, the County had the option
not to pay the ensuing judgment.
The 2003 Amendment changed the calculus for the
governmental entity. Under the Amendment, once the
governmental entity defends (or has the opportunity to
do so), it is at least partially on the hook for any subse-
quent judgment. Had the 2003 Amendment been in effect
prior to the trials of Dieter and Sawdon, the County at least
could have urged the two to settle. It is no answer to say
that the County had the opportunity to defend Dieter
and Sawdon on appeal. The point is that the 2003 Amend-
ment “attache[d] new legal consequences to” an event—the
trial—that was “completed before [the Amendment’s]
enactment.” Landgraf, 511 U.S. at 269-70. After all, there
are only limited bases for reversing a jury verdict at the
appellate stage, in large part because the facts are con-
strued in favor of the prevailing party. Tate v. Executive
Mgmt. Svcs., Inc., 546 F.3d 528, 532 (7th Cir. 2008) (“[W]e
will overturn a jury only if we conclude that no rational
jury could have found for the [prevailing party].”) (quota-
tion marks omitted); McRoberts Software, Inc. v. Media 100,
Inc., 329 F.3d 557, 564 (7th Cir. 2003); see also Latino v.
Kaizer, 58 F.3d 310, 314 (7th Cir. 1995) (even greater defer-
ence for a jury-tried case with “simple issues but highly
disputed facts”).
Even the cases cited by the Estate to prop up its
proposed final judgment rule do not support its argu-
ment. For instance, in Int’l Fidelity Ins. Co. v. State, 567
N.E.2d 1161, 1164 (Ind. Ct. App. 1991), the Indiana Court
No. 08-1478 11
of Appeals held merely that a statute that was amended
after a final judgment could not be applied retroactively
to the pre-amendment judgment. Similarly in Speidel v.
State, 386 N.E.2d 180, 181-83 (Ind. Ct. App. 1979), the
court held that a 1974 amendment to a statute governing
interest owed on judgments was applicable to a judg-
ment obtained in 1975, even though the underlying cause
of action accrued before the amendment took effect.
Neither case supports the argument that final judgments
qua final judgments play a special role in the retroactivity
analysis. In Int’l Fidelity, the fact that the judgment was
final seems merely to have made the retroactivity
analysis easier. In Speidel, the statute in question dealt
only with interest on final judgments. And while in that
case the critical moment for purposes of determining
retroactivity was the final judgment, the court’s reasoning
revealed that it was not adopting a one-size-fits-all ap-
proach to retroactivity.6 386 N.E.2d at 182-83. Indeed, the
cases cited by the Estate do a better job of demonstrating
the disutility of bright line rules in the retroactivity analy-
sis than they do of advancing the Estate’s case. See also
Peacock v. Drew Mun. Separate Sch. Dist., 433 F. Supp. 1072,
1075 (N.D. Miss. 1977) (application of attorney fees provi-
sion would be impermissibly retroactive where the
6
Notably, the Speidel court distinguished the facts of that case
from an earlier case in which the court of appeals concluded
that a date related to the filing of an action was key for pur-
poses of the retroactivity analysis. Speidel, 386 N.E.2d at 182-83
(discussing Palmer v. State, 363 N.E.2d 1245, 1248 (Ind. Ct. App.
1977)).
12 No. 08-1478
district court “already . . . acted . . . in the first instance” on
the substantive claims in the case).
B. The Language of the 2003 Amendment Does Not
Support the Estate’s Argument
The Estate also advances two distinct arguments that the
language of the statute explicitly spells out its intended
retroactive effect. We are unconvinced.
The Estate first argues that by indemnifying both present
and former employees for conduct “within the scope of the
public employee’s employment,” the legislature
“elucidate[d] the temporal application of the statute” and
indicated its intent that the Amendment apply retroac-
tively. Appellant Br. at 29. Temporal yes, retroactive no.
Indeed, the code provision by its terms does apply to
former public employees who commit civil rights viola-
tions within the scope of employment. The natural reading
of this provision is that Ind. Code § 34-13-4-1 includes
within its purview employees who engage in actionable
conduct and then get fired (or quit) before a plaintiff files
suit. The plain language is fatal to the Estate’s argument;
because a plausible alternative construction exists, the
Estate’s proposed interpretation fails. Lindh v. Murphy,
521 U.S. 320, 328 n.4 (1997) (retroactive application of a
statute based on its language is appropriate only where
the language is “so clear that it [can] sustain only one
interpretation”); see also Sholes v. Sholes, 760 N.E.2d 156,
159 (Ind. 2001) (stating that courts must respect a
statute’s plain language and finding no evidence that the
legislature used an “unusual or stylized meaning of a
No. 08-1478 13
commonly understood word”); Ind. Bell Tel. Co., Inc. v. Ind.
Util. Regulatory Comm’n, 715 N.E.2d 351, 354-55 (Ind. 1999)
(relying on the “plain and obvious meaning” of the
words in a public utility statute).7
Moreover, the language that the Estate emphasizes has
been part of the statute for more than a quarter of a
century. See Ind. Code § 34-4-16.7-1 (1976). The 2003
Amendment added only the “defends or has the opportu-
nity to defend” language and mandated indemnification
for compensatory damages. The rest of the language
had been unchanged for decades.8 That the Estate leans
so heavily on language that predated the Amendment in
making its retroactivity argument counsels against our
accepting it, for it is difficult to swallow the argument
that the legislature intended to give retroactive effect to
the 2003 Amendment by resorting to language that
already resided in the Indiana Code.
The Estate’s second textual argument also relies on
reenacted language, and it too falls short of that which
is required to gain retroactive effect. According to the
Estate, because Section 1 requires indemnification of a
public employee who “is or could be subject to personal civil
liability,” it applies to cases that were decided, and in
7
At most the language in Ind. Code § 34-13-4-1 is redundant,
as the language related to current and former public employees
nearly mirrors, right down to its illustrative examples, the
definition of a “public employee” under Indiana law. See
Ind. Code § 34-6-2-38.
8
See supra note 2.
14 No. 08-1478
which personal civil liability attached, prior to 2003. The
logic of the argument appears to be that if liability is
predicated on a certain state of affairs—in this case, a
public employee being subject to liability—and that
state of affairs existed when the Amendment was
enacted, then the legislature intended the law to apply
in those cases. Appellant Br. at 31 (noting that the
General Assembly could have used “shall” to indicate
prospective application).
There are many flaws with the Estate’s argument. First,
it simply ignores the presumption against retroactivity.
The legislature’s use of a present tense verb, or predicating
liability on the existence of a certain state of affairs,
does not somehow reverse the presumption against
retroactivity. See, e.g., Bourbon Mini-Mart, 783 N.E.2d at
259, 262 (conceding that the language of the statute in
question, which was worded in the present tense, did “not
demonstrate that the Legislature meant for recovery to be
retroactive”); Ind. Dept. of Envtl. Mgmt. v. Med. Disposal
Svcs., 729 N.E.2d 577, 581 & n.8 (Ind. 2000) (no retroactive
effect to a definition); State ex rel. Ind. State Bd. of Dental
Examiners v. Judd, 554 N.E.2d 829, 831, 832 (Ind. Ct. App.
1990) (denying retroactive effect under circumstances
logically equivalent to the Estate’s argument); In re
Hershman, 403 B.R. 597, 601-06 (Bnkr. N.D. Ind. 2009)
(same). The Estate cannot overcome the presumption
against retroactivity simply by disregarding it.
Nor is the argument rescued by the Estate’s invocation
of the rule against surplusage, which directs courts to give
effect to each word used by the legislature. Lincoln Nat’l
No. 08-1478 15
Bank & Trust Co. of Fort Wayne v. Nathan, 19 N.E.2d 243, 247
(Ind. 1939); Hatcher v. State, 762 N.E.2d 189, 192 (Ind. Ct.
App. 2002). But see Chickasaw Nation v. United States, 534
U.S. 84, 94 (2001) (noting that the canon is “sometimes
offset by the canon that permits a court to reject words
as surplusage if inadvertently inserted or if repugnant to
the rest of the statute”) (quotation marks omitted). As
noted above, Section 34-13-4-1 applies to an employee
who (1) is or (2) could be subject to personal civil liability.
The Estate argues that, from the moment that the 2003
Amendment was enacted, every public employee cum
constitutional tortfeasor could be subject to personal civil
liability. Therefore, in order to avoid violating the rule
against surplusage, the phrase “is . . . subject to personal
civil liability” must be read to refer to employees who
were already liable at the time that the Amendment was
enacted.
The problem with the Estate’s syllogism is that it
ignores both the plain language and the structure of the
statutory scheme. See Sales v. State, 723 N.E.2d 416, 420
(Ind. 2000); Ind. Ins. Guar. Ass’n v. Davis, 768 N.E.2d 902,
904 (Ind. Ct. App. 2002) (cautioning that interpretation
should not overemphasize “a strict literal or selective
reading of individual words”). Statutory interpretation,
courts often remind litigants, is a holistic endeavor. Trs. of
Chi. Truck Drivers, Helpers and Warehouse Workers Union v.
Leaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)
(quoting United States Nat’l Bank of Or. v. Indep. Ins. Agents,
508 U.S. 439, 454-56 (1993)).
Both the plain language and the structure of the 2003
Amendment reveal plausible, non-retroactive interpreta-
16 No. 08-1478
tions. In this case, the Estate urges that “is . . . subject to
personal civil liability” means “is liable” or more precisely
“was already liable at the date of enactment.” But the
ordinary meaning of “subject to liability” is that a person
is “susceptible to a lawsuit that would result in an
adverse judgment . . . [i.e.,] having engaged in conduct that
would make the actor liable for another’s injury . . . .”
B LACK’S L AW D ICTIONARY 1466 (8th ed. 2004) (emphasis
added). The phrase “could be subject to personal civil
liability” indicates only that the General Assembly was
attempting to use broad language, perhaps explicitly
including the innocent public employee within the
statute’s ambit—after all, the innocent public employee
would not have “engaged in conduct that would make
the actor liable for another’s injury.” Cf. Vroegh v. J & M
Forklift, 651 N.E.2d 121, 124-25 (Ill. 1995) (one who had
not committed a wrongful act was not “subject to liability”
for purposes of a contribution statute). In any event, the
use of the phrase “is or could be subject to personal civil
liability” hardly evinces an unequivocal intent by the
General Assembly to hurl its indemnification provision
backward in time.
Moreover, the Amendment’s structure counsels against
the Estate’s retroactivity argument. Section 1’s language
pertaining to public employees who (1) are or (2) could
be subject to liability applies to both (A) compensatory
judgments, for which indemnification is mandatory and
necessarily involves a court proceeding, and (B) settle-
ments and punitive damage judgments, which are
matters of grace and (in the case of settlements) may be
based on discussions that take place prior to the initia-
No. 08-1478 17
tion of a lawsuit. In other words, applying the canon
against surplusage in light of the statute’s structure does
not require a retroactive result: “is . . . subject to
personal civil liability” plausibly refers to compensatory
damages judgments, while “could be subject to personal
civil liability” refers to settlements. Again, the existence
of a plausible alternative non-retroactive construction
is fatal to the Estate’s interpretation. See Lindh, 521 U.S. at
328 n.4.
In sum, the language to which the Estate points falls far
short of the unambiguous language that Indiana courts
require for a statute to be applied retroactively. Tellingly,
Indiana’s legislature has revealed itself more than
capable of making its statutes explicitly retroactive—for
example, by making a statute’s effective date prior to its
date of passage (see 2004 Ind. Acts 1548) or stating that the
law applies to events that occurred before its enactment
(see Wyrick v. Gentry, 796 N.E.2d 342, 347, 349 (Ind. Ct.
App. 2003) (explaining that a provision that “applie[d] to
a will executed before, on, or after July 1, 2003” had
retroactive effect)).
Indeed, the General Assembly has shown in the
specific context of statutes related to recovery against the
government that it knows how to make provisions retro-
active when it wants to do so. It did so with the statutory
cross reference in Ind. Code § 34-13-4-1, which caps the
compensatory damages of the 2003 Amendment at
$300,000. See 2004 Ind. Acts 1389, 1548 (damages cap
passed on March 16, 2004, retroactive to July 1, 2003).
Given the General Assembly’s evident acumen in this
18 No. 08-1478
realm, it would be particularly inappropriate for us to
stretch the language of Ind. Code § 34-13-4-1 and burden
it with a construction that was never intended. Ind.
Bell, 715 N.E.2d at 356 (reasoning that reversing a “con-
scious choice” of the legislature, as evidenced by its ability
to use certain language when it wanted to, would under-
mine separation of powers). As this Court has reminded
litigants before, those who seek “novel applications” of
state law “would be better advised to bring their claims
in the state courts.” Freeman v. Mayer, 95 F.3d 569, 574 (7th
Cir. 1996).
C. Even if “Remedial,” Applying the 2003 Amendment
Retroactively Would Not Further the Purposes of
the 2003 Amendment
The Estate also argues that even if not explicitly retro-
active, the statute is remedial and therefore should be
given retroactive effect. The argument fails for two princi-
pal reasons. First, it is doubtful that the 2003 Amend-
ment qualifies as “remedial” as Indiana courts use the
term in evaluating retroactivity. Second, giving retroactive
effect to the 2003 Amendment would allow one purpose
of the Amendment to trump other purposes that are
evident from the language and structure of Ind. Code § 34-
13-4-1.
The Indiana courts teach that remedial statutes are
those that are intended to “cure a defect or mischief that
existed in a prior statute.” Martin, 774 N.E.2d at 44; see
also W.H. Dreves, Inc. v. Oslo Sch. Twp. of Elkhart County,
28 N.E.2d 252, 254-55 (Ind. 1940) (determining whether a
No. 08-1478 19
statute is remedial itself presents a question of legislative
intent). If a statute is remedial, then a court will apply
the statute retroactively “to carry out [its] legislative
purpose unless to do so violates a vested right or constitu-
tional guaranty.” Martin, 774 N.E.2d at 44. However,
retroactive application of remedial statutes remains the
exception rather than the rule in Indiana (Pelley, 828
N.E.2d at 919-20), and such application will be denied
absent “strong and compelling reasons.” Gosnell v. Ind. Soft
Water Svc., Inc., 503 N.E.2d 879, 880 (Ind. 1987) (superseded
by statute on other grounds); Walsman v. State, 855
N.E.2d 645, 650 (Ind. Ct. App. 2006); Sack v. Estate of
Hubbell, 613 N.E.2d 868, 869-70 (Ind. Ct. App. 1993).
As a threshold matter, it is not clear to us that the 2003
Amendment is the sort of enactment that Indiana courts
have construed as remedial for purposes of the retro-
activity analysis. Statutes that merely clarify legislative
intent (Martin, 774 N.E.2d at 45), or which are passed on
the heels of (and abrogate) a judicial decision (Hurst v.
State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008); Wyrick, 796
N.E.2d at 346-47), or which are modeled after federal laws
long understood to have retroactive effect (Bourbon Mini-
Mart, 783 N.E.2d at 260-61), all have been held to apply
retroactively by Indiana courts.9 None of these situations
9
It is true that Indiana courts also have applied statutes
retroactively where they provided a new remedy for an
existing right or a modification of procedure. See, e.g., Cardinal
Indus., Inc. v. Schwartz, 483 N.E.2d 458, 460 (Ind. Ct. App. 1985).
(continued...)
20 No. 08-1478
are present in this case. While it is true that the 2003
Amendment altered the state’s long-standing regime of
discretionary indemnification, making it—in some in-
stances—mandatory, the mere alteration of a statutory
scheme, even if significant, does not by itself support
the conclusion that a statute is remedial. Ind. Dept. of
State Revenue, Inheritance Tax Div., 735 N.E.2d 340, 345 (Ind.
Tax. 2000) (denying retroactive application to sizable
expansion of the estate tax exemption).
And if the purpose of compensating victims is, as we
conclude, one among many purposes of the statute, then
denying a retroactive application does not necessarily
frustrate the purposes of the legislature. See Bourbon Mini-
Mart, 783 N.E.2d at 263 (allowing retroactive application in
part because that would “best achieve” the “Legislature’s
intent”); see also William N. Eskridge, Jr., et al., L EGISLA-
TION AND S TATUTORY INTERPRETATION 228-30 (2d ed. 2006)
9
(...continued)
However, we know of no authority allowing retroactive
application of a statute that imposed a new remedy on a
person who was not already liable. In contrast, courts have
concluded that statutes increasing liability were not intended
to have retroactive effect. Stewart v. Marson Constr. Corp., 191
N.E.2d 320, 321 (Ind. 1963) (citing Herrick v. Sayler, 245 F.2d 171,
174 (7th Cir. 1957)); cf. Malone v. Conner, 189 N.E.2d 590, 591
(Ind. Ct. App. 1963), abrogated on other grounds by Martin v. State,
774 N.E.2d 43, 44. n.1 (Ind. 2002). See also Hyder v. Jones, 245
S.E.2d 123, 125 (S.C. 1978) (legislation providing new right
of action where previously there was none was not to be
applied retroactively).
No. 08-1478 21
(discussing interpretive difficulties that may arise when
statutes have multiple purposes).
Indeed, the language and structure of Ind. Code § 34-13-
4-1 reveal that some of the purposes of this amended
provision would be frustrated by giving retroactive effect
to the 2003 Amendment. To be sure, one purpose of the
Amendment was to allow constitutional tort victims to
recover from governmental entities for the wrongs of their
employees. However, the text and structure of the 2003
Amendment evince other concerns as well. Protection of
the government fisc, for instance, is a purpose whose
importance is plain from the language of Ind. Code § 34-13-
4-1. The code limits (by cross-reference) indemnification
by a governmental entity for compensatory damages to
$300,000. “Liability limitations on a person’s recovery
against the state or a political subdivision are designed
to preserve public treasuries, protect against the possi-
bility of unusually large recoveries, and discourage
excessive litigation.” In re Train Collision at Gary, Ind. on
Jan. 18, 1993, 654 N.E.2d 1137, 1146 (Ind. Ct. App. 1995).
The Estate’s interpretation would threaten the fiscal
health of governmental entities by opening them up to
twenty years’ liability, because that is how long a person
has to enforce an Indiana judgment. Ind. Code § 34-11-2-12.
Making the entities suddenly responsible for liability
imposed during the first term of the Reagan Administra-
tion would neither preserve the treasury nor discourage
excessive litigation. And, of course, that the Estate seeks
such a sweeping interpretation based on modest statutory
changes itself counsels against the conclusion that the
22 No. 08-1478
General Assembly intended the result. We presume, to
paraphrase the Supreme Court, that the General
Assembly “does not alter the fundamental details of a
[statutory indemnification] scheme in vague terms or
ancillary provisions—it does not, one might say, hide
elephants in mouseholes.” Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 468 (2001).
The Estate’s interpretation would frustrate another
purpose of the 2003 Amendment, as well. We have already
discussed how the Amendment’s structure changed the
equation for governmental entities when their em-
ployees are faced with lawsuits. The Amendment allows
those entities to decide, ex ante, whether they would
rather face the possibility of a $300,000 indemnification
or accept a settlement (presumably for less). It cannot be
gainsaid that for at least some number of cases in the last
twenty years, a governmental entity—if faced with that
choice—would have entered into settlements for less
than $300,000. Retroactive application of the 2003 Amend-
ment necessarily denies governmental entities that
choice and may result in a governmental entity owing
more than it would have if the scheme had been allowed
to function as the amended statute anticipates.
Applying the provision prospectively compensates
victims of constitutional torts, protects the government’s
fiscal health, and allows governmental entities to make
calculated choices about their litigation strategies. The
modest changes wrought by the 2003 Amendment do not
support the notion that compensating victims was in-
tended to trump the other purposes embodied in the
Amendment.
No. 08-1478 23
D. The County’s Defense of Dieter and Sawdon Does
Not Alter the Analysis
Finally, we note briefly the Estate’s argument that the
County satisfied the “defends or has the opportunity to
defend” statutory predicate. The County’s satisfaction of
the 2003 Amendment’s requirements, however, would
matter only if we concluded that the statute applied
retroactively.
IV. Conclusion
The beating death of Christopher Moreland reminds us,
as this Court recently put it, that “[t]he distance
between civilization and barbarity, and the time needed to
pass from one state to the other, is depressingly short.”
United States v. Bartlett, 567 F.3d 901, 903 (7th Cir. 2009).
When public employees reveal through their actions
exactly how short that distance is, they necessarily erode
popular confidence in public institutions. Nevertheless,
absent the predicates for direct legal liability against a
governmental entity, determining how to restore that
confidence is a matter of public policy rather than judicial
construction. St. Joseph County, Indiana, may choose to
compensate the Estate for the conduct of its officers, but
because the Indiana General Assembly did not make
its amendment to Ind. Code. § 34-13-4-1 retroactive, it is
not a choice that we have the authority to impose. The
order of the district court is
A FFIRMED.
8-11-09