INDIANAPOLIS, Ind. (March 18, 2023) – A three-judge panel of the Indiana Court of Appeals unanimously ruled the trial court did not err when concluding the Clinton County Commissioners exceeded its authority when they amended the county smoking ordinance in an attempt to prohibit inmates from purchasing and using tobacco-free products within the jail.
The appellate ruling issued March 9th came after oral arguments in Indianapolis on January 10th regarding whether or not Special Judge Samuel Swaim erred in his October 8, 2021, ruling in favor of Clinton County Sheriff Kelly’s suit when Judge Swaim said in part, “that the Board cannot regulate by ordinance the conduct of inmates housed in the Clinton County Jail and cannot restrict the right of the Sheriff to sell or of inmates in the Clinton County Jail to purchase and use e-cigarettes and nicotine pouches that do not contain tobacco products within the confines of the Clinton County Jail.”
On appeal, the Commissioners contended Judge Swaim erred when he ruled in the Sheriff’s favor because, pursuant to the Indiana Home Rule Act, the Sheriff had only the powers expressly granted by statute. Based on their interpretation of the Home Rule Act and cases cited, the Commissioners asserted the relevant statutes do not grant the Sheriff unlimited discretion regarding what is sold to inmates at the Clinton County Jail.
Sheriff Kelly contended the Indiana Alcohol and Tobacco Commission regulated the Sheriff’s sale of the e-cigarettes and Indiana law expressly entrusts the Sheriff with the care of the jail and the prisoners therein – known as the “take care” provision.
The Court of Appeals ruled that while the Commissioners “had authority under the Home Rule Act to enact the revised county smoking ordinance as a general ordinance governing the use of e-cigarettes in county buildings, Indiana Code section 36-2-13-5(a)(7) – (the “take care” provision) – expressly gives the Sheriff’s Office the power to “take care” of prisoners and the revised ordinance does not apply to the activity of prisoners in the county jail.”
No public statement as of publishing on whether the Commissioners will appeal this ruling to the Indiana Supreme Court.
