Smith v. Indiana Department of Correction

APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Eric D. Smith Steve Carter
Westville, Indiana Attorney General of Indiana

ATTORNEY FOR AMICUS CURIAE Frances H. Barrow
PUBLIC DEFENDER OF INDIANA Deputy Attorney General
Susan K. Carpenter Indianapolis, Indiana
Public Defender of Indiana
ATTORNEYS FOR AMICUS CURIAE
Gregory L. Lewis INDIANA PROSECUTING ATTORNEYS
J. Michael Sauer COUNCIL
Deputy Public Defenders J. Scott Callahan
Indianapolis, Indiana Bedford, Indiana

Stephen J. Johnson
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court FILED
Apr 09 2008, 11:36 am
_________________________________
CLERK
No. 49S02-0804-CV-166 of the supreme court,
court of appeals and
tax court

ERIC D. SMITH,
Appellant (Plaintiff below),

v.

INDIANA DEPARTMENT OF
CORRECTION, ET AL.,
Appellees (Defendants below).
_________________________________

Appeal from the Marion Superior Court, No. 49D01-0511-CT-43581
The Honorable Cale J. Bradford, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0601-CV-58
_________________________________

April 9, 2008
Boehm, Justice.

In 2004, Indiana enacted a “Three Strikes Law” providing that an inmate “may not file a
complaint” if the inmate has filed three prior lawsuits that were dismissed as frivolous under the
“Frivolous Claim Law.” Other jurisdictions seek to curb litigant abuses by imposing conditions
on lawsuits by “frequent filers.” Indiana’s Three Strikes Law goes further and purports to close
the courthouse door altogether. We hold that this legislation violates the Open Courts Clause of
the Indiana Constitution.

Facts and Procedural History

In 2005, Eric D. Smith was an inmate at the Maximum Control Facility at Westville
Correctional Facility in LaPorte County, Indiana. On July 23, Smith created a makeshift
hammock by tying a bed sheet to some water pipes, climbed into the hammock, and refused to
come down until Department of Correction employees provided him with copies of a brief he
planned to file before the Indiana Court of Appeals. Officers used chemical spray and pepper
balls to force Smith down.

On November 7, 2005, Smith filed a complaint in Marion Superior Court against the
Indiana Department of Correction (“DOC”), the Maximum Control Facility, and various DOC
employees, alleging that the method used to remove him from the hammock caused him injury
and pain. He sought $300,000 in damages and injunctive and declaratory relief.

On December 15, 2005, the defendants moved to dismiss the complaint on the ground
that its filing was prohibited by the Three Strikes Law.1 The Marion Superior Court granted the
defendants’ motion to dismiss, finding that Smith’s prior dismissed cases deprived it of subject
matter jurisdiction over this claim.

1
On November 2, 2005, the LaPorte Superior Court had dismissed another complaint by Smith before
that court under the Frivolous Claim Law, Indiana Code section 34-58-1-2. The LaPorte case was the
third civil action in which a court found that the Frivolous Claim Law barred Smith’s claim, and the
LaPorte order of dismissal included a ruling that the Three Strikes Law, Indiana Code section 34-58-2-1,
prevents Smith from filing a new complaint or petition without a determination that he is in immediate
danger of serious bodily injury.

2
 Smith appealed pro se, challenging the Three Strikes Law as a violation of article I,
section 12 of the Indiana Constitution. The Court of Appeals upheld the statute and affirmed the
trial court. Smith v. Ind. Dep’t of Corr., 853 N.E.2d 127, 129 (Ind. Ct. App. 2006). We grant
transfer today.

Standard of Review

A statute is presumed constitutional. Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 349
(Ind. 2003) (citing Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)). “We do not
presume that the General Assembly violated the constitution unless the unambiguous language of
the statute so mandates.” Id. A statute is nullified on constitutional grounds only where that
result is “clearly rational and necessary.” Id. (quoting Bd. of Comm’rs v. Kokomo City Plan
Comm’n, 263 Ind. 282, 286, 330 N.E.2d 92, 95 (1975)).

Frivolous Claim Law and Three Strikes Law

Both the Frivolous Claim Law and the Three Strikes Law became effective on July 1,
2004, as a part of Public Law 80-2004, section 6, which was designed to screen and prevent
abusive and prolific offender litigation in Indiana. See Smith v. Huckins, 850 N.E.2d 480, 483
(Ind. Ct. App. 2006). The Frivolous Claim Law applies only to “offenders,” defined for these
purposes in Indiana Code section 34-6-2-89(b) as “a person who is committed to the department
of correction or incarcerated in a jail.” (West Supp. 2007). The Frivolous Claim Law provides
in pertinent part:
(a) A court shall review a complaint or petition filed by an offender and shall
determine if the claim may proceed. A claim may not proceed if the court
determines that the claim:
(1) is frivolous;
(2) is not a claim upon which relief may be granted; or
(3) seeks monetary relief from a defendant who is immune
from liability for such relief.
(b) A claim is frivolous under subsection (a)(1) if the claim:
(1) is made primarily to harass a person; or
(2) lacks an arguable basis either in:
(A) law; or

3
 (B) fact.
Id. § 34-58-1-2.
The Three Strikes Law provides:
If an offender has filed at least three (3) civil actions in which a state court
has dismissed the action or a claim under IC 34-58-1-2, the offender may not file
a new complaint or petition unless a court determines that the offender is in
immediate danger of serious bodily injury (as defined in IC 35-41-1-25).
Id. § 34-58-2-1.

Smith does not challenge the constitutionality of the Frivolous Claim Law but argues that
the prohibition of subsequent litigation imposed by the Three Strikes Law violates the Open
Courts Clause found in article I, section 12 of the Indiana Constitution.2 That clause provides
that: “All courts shall be open; and every person, for injury done to him in his person, property,
or reputation, shall have remedy by due course of law. Justice shall be administered freely, and
without purchase; completely, and without denial; speedily, and without delay.” The Court of
Appeals rejected Smith’s claim. The Court of Appeals first found that there is no “fundamental”
right of access to the courts. The Court of Appeals then noted that in Martin v. Richey, 711
N.E.2d 1273 (Ind. 1999), we explained that a statute of limitations limits the substantive right
that gives rise to a claim, but does not abrogate the right to seek redress in court. The court
viewed the Three Strikes Law as comparable to a statute of limitations which acts only as a
limiting device. The Court of Appeals balanced the right of a prisoner to bring a civil action
against the burden of frequent litigation on the court system. Smith v. Ind. Dep’t of Corr., 853
N.E.2d 127, 135 (Ind. Ct. App. 2006) (“Given the General Assembly’s balancing of an
offender’s right to bring a civil action with the heavy burden that those suits have placed on our
judicial system, Indiana Code § 34-58-2-1 does not unreasonably deny offenders the right of
access to the courts and is therefore facially constitutional under the Open Courts Clause.”).3 In

2
Smith also argues that the Three Strikes Law violates article 1, sections 1, 20, and 23 of the Indiana
Constitution. Because we hold that the Three Strikes Law violates the Open Courts Clause, it is
unnecessary to reach the merits of these claims.
3
Some other states have used a similar balancing test for challenges under their open courts provisions.
See, e.g., Smith v. Fisher, 965 So.2d 205, 208 (Fla. Dist. Ct. App. 2007) (“Although courts generally
oppose any burden being placed on the right of a person to seek redress of injuries from the courts, the
legislature may abrogate or restrict a person’s access to the courts if it provides: 1) a reasonable
alternative remedy or commensurate benefit; or 2) a showing of an overpowering public necessity for the
abolishment of the right, and finds that there is no alternative method of meeting such public necessity.”)

4
a similar case decided after Smith, the Court of Appeals again held that the Three Strikes Law
does not violate the Open Courts Clause because the heavy burden on the courts from prolific
filers outweighs the rights of those offenders to bring any more claims. Higgason v. Ind. Dep’t
of Corr., 864 N.E.2d 1133, 1136-37 (Ind. Ct. App. 2007), trans. denied (“Consistent with the
protections of Article I, Section 12, any restriction must be a rational means to achieve a
legitimate legislative goal. . . . I.C. § 34-58-2-1 does not unreasonably deny offenders the right of
access to the courts, but offers a balance between an offender’s right to bring a civil action and
the heavy burden that those claims have placed on our judicial system.”).

For the reasons explained below, we conclude that the Three Strikes Law violates the
Open Courts Clause of the Indiana Constitution. The Indiana Constitution does not balance the
inconvenience of entertaining a claim against the right to seek redress from the courts subject to
reasonable conditions. To the contrary, the right to petition the courts is absolute. This does not
mean that meritless claims may not be summarily dismissed under the Frivolous Claim Law. It
does mean that an individualized assessment of each claim is required, and a claim cannot be
dismissed on the basis of who presents it rather than whether it has merit.

I. The Open Courts Clause

Most other states have a constitutional provision declaring in one form or another that
courts shall be open and a remedy is to be afforded according to the law. Jennifer Friesen, State
Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 6 app. (4th ed. 2006).
There is little direct evidence of the history or purpose of these provisions. Indeed, “[r]esearch
published to date reveals little more than that the provision comes from the Magna Carta Chapter
40, as viewed through the lens of Sir Edward Coke’s Second Institute.” Jonathan M. Hoffman,
By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or.
L. Rev. 1279, 1281 (1995). This court adopted that view of the historical background of
Indiana’s Open Courts Clause in State v. Laramore, 175 Ind. 478, 484-85, 94 N.E. 761, 763

(citation omitted); Leonard v. Abbott, 171 S.W.3d 451, 457 (Tex. Ct. App. 2005) (“A claim of
unconstitutionality under the open courts provision will only succeed if the claimant 1) has a cognizable
common-law cause of action being restricted by a statute, and 2) the restriction is unreasonable or
arbitrary when balanced against the purpose and basis of the statute. In applying this test, we consider
both the statute’s general purpose and the extent to which the claimant’s right to bring a common-law
cause of action is affected.”) (internal citations omitted).

5
(1911). Chapter 40 of the Magna Carta provides “to no one will we sell, to no one deny or delay
right or justice.” William McKechnie, Magna Carta: A Commentary on the Great Charter of
King John 395 (2d ed. 1914). Writing in 1671, Coke understood Chapter 40 to give all citizens
the right of access to a “remedy by the course of the law” for “injury”:
And therefore every Subject of this Realm, for injury done to him in bonis, terris,
vel persona, by any other Subject, be he Ecclesiastical, or Temporal, Free or
Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or
any other without exception, may take his remedy by the course of the Law, and
have justice and right for the injury done to him, freely without sale, fully without
any denial, and speedily without delay.
David Schuman, Oregon’s Remedy Guarantee, 65 Or. L. Rev. 35, 39 (1986) (quoting Faith
Thompson, Magna Carta: Its Role in Making of the English Constitution 1300-1629, at 365
(1948)). Some variation of Coke’s formulation of this right appears in many state constitutions,
including Indiana’s.4

Some states have understood their similar provisions either to limit legislative alteration
of remedies or as no more than a mandate to the courts to administer justice impartially.
Compare Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and
Defenses § 6.02[3], at 6-9 (4th ed. 2006) (“[S]tate court decisions divide sharply on the central
issue of whether (and how) these clauses do limit legislative attempts to alter remedies available
under the common law.”) with Meech v. Hillhaven West, Inc., 776 P.2d 488, 493 (Mont. 1989)
(“The history of the guarantee indicates that framers of state constitutions inserted remedy
clauses to insure equal administration of justice. Clauses insuring administration of justice are
aimed at the judiciary, not the legislature.”). We think neither is a correct understanding of the
Indiana provision.

An Open Courts Clause first appeared in article I, section 11 of the Indiana Constitution
of 1816. The current version was adopted in article I, section 12 of the 1851 Constitution.
Neither the constitutional debates nor contemporary judicial decisions shed light on the meaning
or purpose of this guarantee. In McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000), we

4
“The constitutions of thirty-seven states contain passages which, in substance, provide that the courts
‘shall be open to every person, and speedy and certain remedy afforded for every wrong and for every
injury to person, property, or reputation.’” Note, Constitutional Guarantees of a Certain Remedy, 49 Iowa
L. Rev. 1202, 1202 (1964); see, e.g., Conn. Const., art. I, § 10; Fla. Const., art. I, § 21; Ky. Const., § 14;
Miss. Const., art. 3, § 24; Ohio Const., art. I., § 16; Pa. Const., art. I, § 11; Utah Const., art. I, § 11.

6
considered whether the clause prevented the legislature from altering or abrogating a common
law cause of action. We held it does not, and observed that “apart from the text itself, precedents
of this Court, and precedents from other states with similar provisions, we find no relevant
guideposts on this point. In particular, there appears to be no unique Indiana history surrounding
the adoption of [the Open Courts] Clause in 1816 or its redrafting in 1851.” Id. at 974.

We think the text itself is instructive on the issue before us today. It has been observed
that “[t]he phrase ‘all courts shall be open’ is so indefinite and general that it could be interpreted
in a number of ways.” Robert Twomley, The Indiana Bill of Rights, 20 Ind. L.J. 211, 229
(1945). At the margins, this is presumably true. But as a matter of ordinary usage, the provision
that remedy by due course of law is available to all is readily understood to mean, at a minimum,
that to the extent the law provides a remedy for a wrong, the courts are available and accessible
to grant relief. Moreover, the history of the text itself provides some persuasive evidence
bearing on the issue presented in this case. Two distinct concepts are embedded in Coke’s
explanation of the Magna Carta. Chapter 40 speaks to the availability of a remedy for injury and
also assures impartial and prompt administration of justice. Article I, section 11 of the 1816
Constitution, like the Magna Carta, addressed both in one rather lengthy sentence, “[t]hat all
Courts shall be open, and every person, for an injury done to him, in his lands, goods, person, or
reputation shall have remedy by the due course of law; and right and justice administered
without denial or delay.” Quoted in Charles Kettleborough, Constitution Making in Indiana,
1780-1850, at 86 (Art Craft Press, Inc. 1971) (1916). Article I, section 12 of the 1851
Constitution separated these two concepts into distinct sentences:
All courts shall be open; and every person, for injury done him in his person,
property, or reputation, shall have remedy by due course of law. Justice shall be
administered freely, and without purchase; completely, and without denial;
speedily, and without delay.
We think this demonstrates an embracing of the notion, well accepted by 1851, of an
independent judiciary, and guarantees access to the courts to redress injuries to the extent the
substantive law recognizes an actionable wrong. As such, the first sentence imposes some
limitations on the actions of the legislative and executive branches. The second sentence
addresses the values of speed and impartiality and is, as Meech put it, “aimed at the judiciary, not
the legislature.”

7
 Judicial decisions reinforce the reading suggested by the text. Although some
jurisdictions have taken a more restrictive view of their open courts provisions, Indiana has given
it a more generous interpretation. We have long seen the Open Courts Clause as prohibiting
outright closure of access to the courts. Laramore observed that the second sentence of article I,
section 12 also requires “unpurchased and impartial justice”:
This provision of our Constitution, while getting its substance, as similar
provisions in other state constitutions do, from Magna Carta, may be a broader
guaranty of free, unpurchased and impartial justice than the similar provision in
that great instrument sought to establish.
175 Ind. at 484-85, 94 N.E. at 763. And Square D Co. v. O’Neal, 225 Ind. 49, 56, 72 N.E.2d
654, 657 (1947), held that the Open Courts Clause “does not prohibit the Legislature from
imposing regulations and restrictions as to how this court may take jurisdiction; it cannot,
however, take jurisdiction away from this court. Any regulation which would virtually deny our
citizens the right to resort to this court would necessarily be unreasonable.” More recently, we
held that an occurrence-based statute of limitations violates the Open Courts Clause if it is
applied to bar an otherwise valid claim before the claimant can learn of the claim. Martin v.
Richey, 711 N.E.2d 1273, 1282 (Ind. 1999). But we have also held that the Open Courts Clause
does not prevent the legislature from modifying or restricting common law rights and remedies.
McIntosh, 729 N.E.2d at 977-78; see also Midtown Chiropractic v. Ill. Farmers Ins. Co., 847
N.E.2d 942, 947 (Ind. 2006). Nor does it prevent the legislature from imposing conditions on the
pursuit of a claim in court. Thus, the legislature can require mediation and impose filing fees as
conditions to be met before judicial relief is available. See Fuchs v. Martin, 845 N.E.2d 1038,
1041 (Ind. 2006) (mandatory mediation is not a violation of article I, section 12 because it does
“not prevent a party from obtaining a judicial resolution of a case nor obstruct a party’s access to
the courts”); Laramore, 175 Ind. at 484-85, 94 N.E. at 763 (holding that fees paid to a sheriff did
not violate article I, section 12 because the Clause intended “to prohibit, not fees, like those
prescribed in the fee table, but gratuities, or exactions, given or demanded for the direct purpose
of influencing the course of legal proceedings”) (citations omitted). In short, the Open Courts
Clause does not prohibit all conditions on access to the courts, but it does prevent the legislature
from arbitrarily or unreasonably denying access to the courts to assert a statutory or common law
cause of action that is in itself unmodified and unrestricted. Martin, 711 N.E.2d at 1283.

8
 II. Constitutionality of the Three Strikes Law

Many states have provisions designed to ease the burden of frequent and frivolous filings.
Prolific filers’ access to the courts has been subjected to a variety of conditions, for example,
posting of a security bond or prior screening by the court. See, e.g., Cal. Civ. Proc. Code § 391
(West 2004) (requiring security if plaintiff (a) has lost or delayed five civil actions pro se in the
past seven years; (b) continues to try to relitigate a closed case pro se; (c) repeatedly engages in
frivolous or bad faith tactics pro se; or d) has previously been declared a frequent filer); Colo.
Rev. Stat. § 13-17.5-102.7 (2007) (inmate who has had three civil actions based upon prison
conditions dismissed cannot file any further civil action against a prison in forma pauperis unless
imminent danger of serious bodily injury); Del. Code Ann. tit. 10, § 8803(e) (1999) (requiring
litigant who has filed frivolous or malicious litigation to obtain leave of court to file any actions);
Fla. Stat. Ann. § 68.093 (West 2005) (requiring security from plaintiff who has lost five or more
civil actions pro se in the past five years and is not reasonably likely to prevail on the merits);
Fla. Stat. Ann. § 944.279(1) (West 2006) (subjecting prisoner who brings a frivolous or
malicious suit to discipline from the Department of Corrections); Haw. Rev. Stat. § 634J (1993)
(requiring security from plaintiff who has acted in bad faith or lost five civil actions pro se in the
last seven years, relitigates in bad faith, or has been declared vexatious in another state); Tex.
Civ. Prac. & Rem. Code Ann. § 11 (Vernon 2005) (requiring security from plaintiff who has
either delayed, brought in bad faith, or lost at least five civil suits in past seven years, or has been
declared vexatious; and who has no reasonable probability of success in suit). These conditions
have frequently survived constitutional challenge where the individual litigant has been found to
abuse the right of access to courts. See, e.g., Molski v. Evergreen Dynasty Corp., 500 F.3d 1047
(9th Cir. 2007) (requiring leave of court to file claims pursuant to ADA Title III); Day v. State,
903 So.2d 886 (Fla. 2005) (barring litigant from filing further pro se actions); Grundstein v.
Ohio, No. 1:06 CV 2381, 2006 WL 3499990 (N.D. Ohio Dec. 5, 2006) (requiring leave of court
to file any actions); State ex rel. Lindell v. Litscher, 659 N.W.2d 413 (Wis. Ct. App. 2003)
(barring indigent prisoner from filing in forma pauperis unless asserting a fundamental right).

In addition to legislation in several states, section 101(a) of the Federal Prison Litigation
Reform Act of 1995 (“PLRA”), 28 U.S.C. § 1915(g) (2000), denies a frequent filer inmate the
ability to file in forma pauperis. Federal courts have upheld the PLRA, finding that it does “not

9
deprive [inmates] of adequate, effective, and meaningful access to the courts,” Hampton v.
Hobbs, 106 F.3d 1281, 1284 (6th Cir. 1997), because it does not prevent inmates from pursuing
claims but merely requires that they pay the filing fee. See, e.g., Ashley v. Dilworth, 147 F.3d
715, 716-17 (8th Cir. 1998).5

Indiana is unique in imposing a complete ban on filing based on the plaintiff’s prior
litigation. The Three Strikes Law sweeps with a broader brush than the law of any other United
States jurisdiction because it operates as an indiscriminate statutory ban, not merely a condition
to access to the courts.6 The law bars claims purely on the basis of the plaintiff’s prior activity
without regard to the merits of the claims presented. By its own terms, such a ban on presenting
any claims at all denies a “remedy by due course of law” for obvious wrongs that are otherwise
redressable in court. The exception in the Three Strikes Law for claims of “immediate danger of

5
Smith presents no claim under the Federal Constitution, and the Federal Constitution has no open courts
provision. Nevertheless, federal law is instructive. The Supreme Court has held that prisoners have a
constitutional right to “adequate, effective, and meaningful” access to the courts. Bounds v. Smith, 430
U.S. 817, 821-22 (1977). This forecloses complete denial of court access, even by individually tailored
court order. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1298 (11th Cir. 2002) (“An injunction
designed to protect against ‘abusive and vexatious litigation’ cannot completely foreclose a litigant from
any access to the courts.”); DeLong v. Hennessey, 912 F.2d 1144, 1149 (9th Cir. 1990) (“[O]rders
restricting a person’s access to the courts must be based on adequate justification supported in the record
and narrowly tailored to address the abuse perceived.”); Abdullah v. Gatto, 773 F.2d 487 (2nd Cir. 1985)
(holding that trial court order forbidding prisoner from filing any actions regarding his arrest, trial,
conviction and imprisonment was overbroad because it prevented the filing of meritorious claims); In re
Oliver, 682 F.2d 443, 446 (3d Cir. 1982) (“Access to the courts is a fundamental tenet of our judicial
system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may
be.”); In re Green, 669 F.2d 779, 786 (D.C. Cir. 1981) (holding that a court could impose even “onerous
conditions” on litigants as long as they are “not so burdensome as to deny the litigant meaningful access
to the courts”).
6
Some courts have found that even conditions short of full closure are unconstitutional. See, e.g., In re
Lawsuits of Carter, 510 S.E.2d 91, 94 (Ga. Ct. App. 1998) (holding that requiring the plaintiff to find an
attorney to sign pleadings was unconstitutional because “the order prejudges the case and denies process
altogether, much less due process, unless Carter as plaintiff relinquishes his constitutional right to self-
representation”). Even states without an explicit protection of open access to courts in their respective
state constitutions prohibit complete court closure. See, e.g., Jordan v. State ex rel. Dep’t of Motor
Vehicles & Pub. Safety, 110 P.3d 30, 43-44 (Nev. 2005) (holding that “even though courts may, as a
general rule, restrict vexatious litigants’ access, constitutional considerations prohibit a complete ban on
filings by indigent proper person litigants if the ban prevents the litigant from proceeding in criminal
cases and in original civil actions that sufficiently implicate a fundamental right; such orders are
impermissible”).

10
serious bodily injury” does not cure this defect. For example, simple theft or conversion of an
inmate’s property would be immunized from court redress.

The sweeping ban on all litigation imposed by the Three Strikes Law is unnecessary to
accomplish the legitimate objectives of the legislation. The dissents contend that our holding
today will clog the courts to the exclusion of legitimate litigants. This claim is unfounded. In
order to dismiss a case under the Three Strikes Law, the defendant must present evidence that the
plaintiff is an “offender” and has suffered three previous dismissals under the Frivolous Claim
Law. The court must read these papers, and also the complaint to see that it does not fall within
the exception for bodily injury. The court must then issue a ruling. Processing a frivolous claim,
which the Constitution demands, will impose little more burden on the courts beyond those that
would be required if the Three Strikes Law were upheld. If the claim is truly frivolous, the court
can dismiss it under the Frivolous Claim Law. If not, the Open Courts Clause guarantees to any
person the right of access to the court subject to reasonable conditions and a determination of
whether the law affords a remedy. And, as noted, other courts have upheld other less stringent
methods, such as requiring filing fees, to deter frivolous filing if that is a concern.

The State cites Blanck v. Indiana Department of Correction, 829 N.E.2d 505 (Ind. 2005),
in support of its claim that the Three Strikes Law is a valid exercise of legislative power. Blanck
held that the prison discipline statutes on which the plaintiff relied did not create a private cause
of action. Id. Blanck also upheld the provision in the Administrative Orders and Procedures Act
denying court jurisdiction over claims of prison discipline. Id. Neither holding supports the
view that the legislature may deny inmates access to the courts to present any claim at all.
Indeed, to the extent Blanck speaks at all to the issue before us, it acknowledged that “the Open
Courts Clause requires that where a cause of action has been created (by constitution, statute, or
common law), courts must be open to provide remedy by due course of law.” Id. at 511 (citing
McIntosh v. Melroe Co., 729 N.E.2d 972, 979 (Ind. 2000)). Thus, although there is no right
under the Open Courts Clause to any particular cause of action and the legislature may create,
modify, or abolish a particular cause of action, to the extent there is an existing cause of action,
the courts must be open to entertain it.

The trial court did not address the state’s contention that the complaint must be dismissed
under the Frivolous Claim Law. Accordingly, we express no opinion on that issue.

11
 Conclusion

The trial court’s order dismissing Smith’s complaint under the Three Strikes Law is
reversed. This case is remanded to the trial court to address whether complaint should be
dismissed under the Frivolous Claim Law.

Dickson and Rucker, JJ., concur.

Shepard, C.J., dissents with separate opinion.

Sullivan, J., dissents with separate opinion.

12
Shepard, Chief Justice, dissenting.

Today’s decision means that a good many Hoosiers will have to wait longer for their day
in court. People who have suffered personal injuries will have their jury trials delayed. Children
whose future custody is up in the air will receive a ruling later rather than sooner. Indeed,
criminal defendants seeking relief from unlawful searches will need to stay in custody a little
longer.

The attention these and other litigants now receive is instead being transferred to the very
most abusive of the frequent filers in the state’s prisons.

The Court has chosen an excellent poster boy to highlight the policy embedded in its
ruling. Eric Smith initiated thirteen civil appeals just in 2005-06. Other prisoners being given
relief today have generated even more.

Many of Smith’s lawsuits have been formally adjudicated as frivolous—either by trial
courts or appellate courts or both. This is not easy to achieve in Indiana’s legal system, which
affords all convicted defendants an appeal at public expense and a collateral attack on their
convictions at public expense. And ours is a court system in which judicial officers lean
mightily against declaring claims or lawsuits frivolous in order to keep open the courthouse door.

Against this backdrop, Mr. Smith’s achievement in the field of filing serial lawsuits is an
impressive one.

The majority rates the cause of assuring Smith a hearing on the merits of every lawsuit he
chooses to file as so important to the life of our state that it takes the extraordinary step of
invalidating the General Assembly’s effort to assure access to justice for all of Indiana’s citizens.

The decision to do so is not compelled by the organic documents of Western justice. One
can revere Magna Carta and still say with confidence that those who created it would be appalled
that so many citizens should be pushed aside to make room for prison litigants pursuing their
fifteenth or one hundred fifteenth lawsuit. The majority’s assurance that ordinary citizens will
not be disadvantaged by today’s ruling is really quite paradoxical. Not much time will be
required to afford multiple filers the due process Americans hold as so important, my colleagues
say, because trial judges will normally dismiss their pleadings by doing only a little more than
reading the prisoner’s name.

2
Sullivan, Justice, dissenting.

The majority’s opinion goes much further than necessary on these facts to protect a
Hoosier’s cherished right of access to the courts. The principle that the majority admirably seeks
to vindicate could be just as easily accomplished by declaring the statute constitutional as applied
here, but recognizing that there may be circumstances when that would not be so.

By going further than it must, the majority needlessly creates opportunities for those who
would abuse the right of access by filing multiple frivolous lawsuits. For every case these
frequent filers pursue, a trial or appellate court either has less time for cases of divorce, child
abuse, and crime, or the Legislature and property tax payers must provide additional resources to
the courts so that all the above needs may be met. The Legislature struck a reasonable balance
here in saying that a prisoner who abuses his rights under article I, section 12, of the Indiana
Constitution three times may not do so again unless in immediate danger of serious bodily injury.
There may be other appropriate exceptions, as the Court suggests. But because those exceptions
are not present here, I see no basis for finding the statute unconstitutional in this case, either on
its face or as applied.