rigid briefs and is then provided the factual basis of this case but i want to start out just highlighting a few very important facts of the case that i think would be significant for the allow this court to two thousand and eleven a judgment sentence was filed in the circuit court and on june the second of two thousand and eleven he was transferred to the only department of corrections the sheriff of swing county keith brown as required by the statute that we're discussing here today provided to the circuit clerk a number of days out for it been incarcerated slane county jail so that he would get appropriate time  credit for the time he served i it's not a white elephant room or anything i get the facts are very simple there was a miscalculation this case of the number of days that mr cowper was entitle to for the time served in the swing county jail there was no question about that that occurred and i'm not going to run from that fact but i also know that the fact in this case is looked in the statute that the circuit clerk  and its mention by judge labored in his of order the circuit clerk then do anything other than what he was required to do under the statute the stages very clear that share is to provide certain number of da want to highlight in light of this particular case is that on june twenty third of two thousand and eleven which would be about three weeks after mr cowper was transferred to the apartment corrections department of corrections and i think that's an important fact i'm going to come back to that issue because i believe when we get to the implied whether it's implied right private cause of action that mr cowper trinity in this case is not under the sentencing stage is remedy in this case is what he did in the trial court when he felt that found that be they trying to break he filed his motion in the trial court asking the trial court to recalculate the time credit for that he served in sling county jail to be transferred to department corrections and i think we'll get into the private cause of action but that is this really and i think that's how the white private right fails on the can file a civil cause of action pursuant to this section of the sentencing code the code of corrections five dash four days one efore and further on paragraph thirteen of page six of the opinion and you have to look at that in this particular case because there is no cause of action by this section for a private individual is remedy is what he tried to do in this state court and of information that's not really ready available to the court it's requiring the clerk to go second guess second check how many days someone's been in jail army bases been incarcerated it's not his not his department or his or cause of action this court there's really three cases this court has decided issues of whether or not there's an implied cause of action for wrong test you're a freeman talk about the court has implied a right of action under statute only in cases only in cases where the statute would then would be ineffective as a practical matter found that there was no one by writer private action under the retaliation of the nursing home care that facts in that case are you would think if there was a reason to have a private cause of action when the legislature did not issue one that would be the case under the fact that was a case where a resident of the nursing home essentially choked herself on a half rail the supervisor nurses got the nurses together and tried to devise their shorey as to what happened and the supervisor says you're not supposed to talk to anybody but one of these nurses then told the family as to statute which where there is one paragraph out of twelve sections that would allow for private right back that's not a primary purpose of a co that's not a primary purpose of this sport comply the only case that we can fi case where they talked about the legislation ten of the code of corrections what happened was is to assist the judges in their sentencing is to sentencing code corrections as  remedy under the grievance code to solve any alleged miscalculation that was the i mean you made your brief assholes yes so you're making a new argument here today i'm adding on to that are yes and that is because you have to find a private and it talks about the remedy was in the facts of the argument it was in the facts of the brief it's in the record that he did in fact have a remedy in that regard and that's the very he chose that's the gravity it should be provid for the trial court he did that that's correct and what happened he never brought it to the attention i don't know but that for some reason his attorney who was a public defender failed to bring it to the court  or yes ma'am i'm sorry excuse me yes it was filed and in fact if you read the record the state after he was mr cowper was out of jail that's when the state finally responded to the petition  then you would be flooded with any private action that they made could find any violation of the code would provide a private right of action can't create private action as one subsection and then not open up to the other sections of code of towards hell that it should only do so in very circumstances where there is not a remedies i think there is an apple records in this case and the broad spectrum if it would apply ever applied private cause of action is remedy available that in this particular case this particular defendant didn't benefit from utilizing their the i mean i would disagree on the basis that it requires an inmate to take me i think he it's out of the record but you live there for his attorney his attorney took whatever time it was to file a motion it is filed i think that was a twenty day period that still there's a twenty day period where he's still in prison waiting for this to get her act if that were the case in the future they're still go this time period where before the motion actually gets heard people waiting in prison with no recourse never get that time back if that was the sole remedy and i don't believe that isn't help but remedy in this there is just a few other share now that is if you were surprised by the statute however in this case for the pleading stage so what numbers the clerk received from the sheriff what number she transferred from sure are all questions in fact that will be able to get it later i agree with that one hundred percent i think right now we have to keep both parties on the case because we don't know what was transmitted to the clerk we don't know what the clerk or read again those questions affect book come up later and we'll be able to resolve that issue that time private right of action is one of the statute is remedial you don't contend do you that this is a remedial statute do you know i would say so however i do think that they're just moving through those  oil of factors to determine whether an implied by the right of action is proper and that offshore of those elements are met and i do agree that we need to be careful line of private right of action but i think this is one of those instances where it is indeed the  standard this court's case law you know just looking at one of the stance you contains the word shell right it's considered directory rather than mandatory right if it doesn't the provide a consequence for a failure to comply you'd agree with it yes and this statute does not provide a consequence for a failure to comply so it would be considered directory under cases right at least and doesn't seem it all in congress to imply a private rate of action for the violation of a directory st arguing but just briefly looking at those nor of actors i don't think there's much dispute on some of the factors specifically the first and whether or not the plaintiff is a member of the class for the statute is intended to protect i think the case was clear easily how the second element whether private cost action is consistent with the underlying purpose of the statute again i think this is the statute speaks for itself when looking at the underlying purposes there's two or three sports total but two of them specifically by this case one of those would be to prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents and the second one is to restore offenders to use citizenship so to have these purposes applied states that the code is primarily an actor to provide course with direction when imposing sentences with a desire to return an offender to useful citizenship that the two purposes mentioned in the statute itself indicate that the private cause of in this case i would say so i mean this case where you know we're not saying that the courts did anything tensional that's why we're basing our claim on the theory there is a negligence so i would say not as good prevent that from happening and that kind of rolls into factor number three what specifically is this injury design one of the problems that the statute is designed to again we see that work prevent and prevent is one of the stated purposes agreed to this decision and expanded on of the little bit by stating the legislature's statutory designation of making the clerk in the shirt responsible for the mandatory assembling in transmission of of the credit against  additional evidence of the statutory intent and taking a little step further than that in reviewing the legislative history of this and i did not put this in my brief but it is in the record on my motion to reconsider the trout court level the legislative history talks about you can see the transcripts of the legislature in crafting the bill and they specifically talk about the allotment of what's called good time credit in going against person sentences so you can kind of that was back in the seventy's to see what they were thinking when they were drafting th statute it's pacifically to try to prevent people from staying in prison for too long now the fourth and final element is the one that mr blair art most about which is whether this is necessary to provide an adequate i also don't believe though file this case and looking at the cases that cite this i think there's about eight or nine total they all deal with grievances that her out person was in prison one deals with improper ventilation of  one deals of medical treatment he was receiving well northeast of the medical meal plan they were put on so these were all grievances that the inmates put it made while they were in there trying to fix them and those grievance procedure with the correctional facility now in this case mr cowper the correctional facility didn't do anything wrong in this case because if you filed a grievance they could have said you know ok we can't do anything about it and we know they can't do anything about it because of the other case law we have ev hypothetical grievance for review if they said oh you're right they can't they they have to follow the sentence so they would have felt so in this case i don't believe the section three point eight in your court to not apply private action because of action because they found that one already exists in this case the common law theory of negligence based on the safety statute nature of the lead poisoning prevention act in this case the unified correction certainly isn't safe is that your sanity checks human life and so i don't believe that would apply to this case and further evans patton and shaw all direct you you're telling us that you believe that there is a cause of action no matter how much time is incorrectly calculated if it's one day two days or just in the fact  medical treatment while in prison there that kind of tension that fourth element whether there was another remedy and there that section three dash dash eight remedy grievances section would have helped him because he was in prison talking about problems he was having in so i guess what same question all four of the required elements to apply a private right of action are met this case but if found otherwise then the statute becomes useless as far as mr cowper is concerned there would be no remedy for him we've discussed he didn't itself states that one of his purposes is to prevent arbitrary and oppressive treatment of persons adjudicated offenders or delinquents i don't know if said that a lot but i think that's one of the most important purpose sections revolving this case it was designed to prevent this kind of thing so it didn't is not i mean that's is really now again you argue this what you're doing if but if i might i might in your brief your conclusion is that because the adequate remedy it was seven thirty i also yes i have three desh because if the department of corrections receives a certain amount of days that that's what sense of them that they have to keep men that want so he could not be given a remedy under the section that you have provided here in your brain if you look at