SURVEY OF INDIANA ADMINISTRATIVE LAW M ANUEL “M ANNY” HERCEG * TABITHA L. B ALZER ** INTRODUCTION Administrative agencies— performing quasi-judicial, legislative, and executive functions— serve as a direct link between Indiana’s citizens and their government. Because of this connection, agencies present the courts with a range of legal problems touching all corners of Indiana’s legal landscape and affecting wide-ranging interests. W hile courts have developed steadfast principles to address these issues, it is important to review how the courts apply those principles in the context of an evolving administrative state. That is the purpose of this survey Article. I. A CCESS TO JUDICIAL R EVIEW A. Exhaustion of Administrative Remedies An individual or entity aggrieved by the actions or inactions of the state must generally exhaust administrative remedies before seeking court intervention. But1 in some instances, the aggrieved party can circumvent the administrative process. One such instance is when it is futile to seek recourse through that process. Two2 recent cases, Ellis v. State and B ragg v. Kittle’s Home Furnishings, Inc.,3 4 demonstrate the intersection between the exhaustion requirement and the futility exception. Ellis v. State involved the claim of an inmate for educational credit time based upon his completion of coursework while incarcerated. Ellis first5 subm itted his request to the Department of Correction (DOC) facility program director, who instructed him to contact his case worker. He did so, and the6 caseworker responded that the inmate had “maxed out for any more time cuts per policy.” Ellis appealed to the Indiana State Prison superintendent, who denied7 the appeal. Ellis then submitted an appeal to the postconviction court alleging8 that he had exhausted his administrative remedies. The postconviction court9 denied the appeal without a hearing, finding the DOC had administrative * Associate, Taft Stettinius & Hollister LLP. ** Associate, Lewis Kappes P.C. A 2010 graduate of the Indiana University Maurer School of Law, Tabitha Balzer’s primary areas of practice include utility law and commercial litigation. 1. IND. CODE § 4-21.5-5-4(a) (2016). 2. See, e.g., Bragg v. Kittle’s Home Furnishings, Inc., 52 N.E.3d 908 (Ind. Ct. App.), trans. denied, 62 N.E.3d 1201 (Ind. 2016). 3. 58 N.E.3d 938 (Ind. Ct. App.), trans. denied, 64 N.E.3d 1205 (Ind. 2016). 4. Bragg, 52 N.E.3d 908. 5. 58 N.E.3d at 939-40. 6. Id. at 940. 7. Id. 8. Id. 9. Id. http://doi.org/10.18060/4806.1164 1116 INDIANA LAW REVIEW [Vol. 50:1115 responsibility over the award of credit time.10 At the Indiana Court of Appeals, the parties disputed whether Ellis had exhausted his administrative remedies, and thus whether the postconviction court had subject matter jurisdiction. The court first clarified that exhaustion of11 administrative remedies is a question of procedural error, and that claims based on procedural defects do not implicate subject matter jurisdiction. The court12 then explained that the DOC must implement grievance procedures that inmates are required to exhaust before they may appeal to the postconviction court. In13 this case, the appellate court found the postconviction court erred by denying the inmate’s petition without considering whether he had exhausted his administrative remedies. On remand, the postconviction court was instructed to14 consider the exhaustion question and to dismiss the inmate’s petition without prejudice if it found failure to exhaust. However, if the postconviction court15 determined on remand that the inmate did exhaust his remedies, it was instructed to hear the petition on its merits.16 Though the court of appeals in Ellis had explained that failure to exhaust does not implicate subject matter jurisdiction, the court of appeals reached the opposite conclusion in Bragg v. Kittle’s Home Furnishings, Inc. Bragg involved a claim17 by a furniture sales employee for failure of her employer to pay commissions within the ten-day limit set forth in the Indiana W age Payment Statute (Indiana Code section 22-2-5-1(b)). The case was brought both on behalf of the18 employee herself, as well as on behalf of a class of unknown current and former employees paid in a similar fashion. The plaintiff only alleged that the19 employer’s payment of commissions was untimely, conceding that all amounts due were ultimately paid.20 The trial court dismissed the claims of the unknown purported class members whose em ployment was involuntarily terminated prior to the complaint (“terminated class members”), finding that these members had failed to exhaust their administrative remedies under the W age Claims Statute because their claims were not submitted to the Department of Labor (“DOL”) prior to filing. The trial21 court also dismissed, on summary judgment, the claims of the remaining class m em bers and the plaintiff herself, finding the commissions at issue did not 10. Id. 11. Id. 12. Id. 13. Id. at 941. 14. Id. 15. Id. at 941-42. 16. Id. at 941. 17. 52 N.E.3d 908 (Ind. Ct. App.), trans. denied, 62 N.E.3d 1201 (Ind. 2016). 18. Id. at 911. 19. Id. 20. Id. 21. Id. at 913-14. 2017] ADM INISTRATIVE LAW 1117 qualify as wages under the W age Payment Statute.22 On appeal, the employee argued that the claims of the terminated class members were governed by the W age Payment Statute rather than the W age Claims Statute. The Indiana Court of Appeals disagreed, finding the23 determination of which statute applies depends on the employment status of employees at the time their claims are brought. It concluded the W age C laims24 Statute applies to any employee whose employment is involuntarily terminated prior to the filing of a complaint, and the W age Payment Statute applies to other employees.25 The plaintiff argued, in the alternative, that any failure of the terminated class m embers to exhaust administrative remedies is excusable on futility grounds because the DOL has no investigative or enforcement apparatus; therefore, its procedures would not have provided any benefit. The court disagreed with her26 contention that the informal, nonbinding nature of the D O L’s claim resolution process offered no benefit to the terminated class members. The court explained27 that the DOL’s dispute resolution procedures are in the nature of mediation, and that the procedures “prom ote judicial economy by allowing all wage claimants the opportunity to resolve their wage disputes at the administrative level first before engaging in the often time-consuming and expensive process of litigation.” The court concluded the trial court properly dismissed the claims of28 the terminated class members due to lack of subject matter jurisdiction, based on their failure to exhaust administrative remedies.29 Finally, the court upheld the trial court’s dismissal on summary judgment of the claims of the plaintiff and the remaining purported class members, finding the commissions at issue were not “wages” under the W age Payment Statute, and therefore the statute’s ten-day time limit did not apply.30 II. SCOPE AND EFFECT OF A GENCY A CTIONS A. Standard of Review and Deference to Agency Fact-finding Determinations Courts review agency fact-finding determinations with deference. In M arion County Assessor v. Simon DeBartolo Group, LP, the Indiana Tax Court reviewed a decision by the Indiana Board of Tax Review (the “Board”) involving the 2006 and 2007 valuation of the Lafayette Square M all property in Indianapolis.31 22. Id. at 913. 23. Id. at 914. 24. Id. at 915. 25. Id. 26. Id. at 914, 918. 27. Id. at 917-18. 28. Id. at 918. 29. Id. at 912, 915, 918. 30. Id. at 912, 925-26. 31. 52 N.E.3d 65 (Ind. T.C. 2016). 1118 INDIANA LAW REVIEW [Vol. 50:1115 Simon DeBartolo Group, LP, DeBartolo Realty Partnership, LP, and SPG Lafayette Square, LLC (collectively, “Simon”), owned the mall in 2006 and 2007. In December 2007, Simon sold the mall to the Ashkenazy Acquisition32 Corporation for $18,000,000. At that time, however, Simon had already initiated33 an administrative appeal challenging the mall’s assessed value of $56,341,000.34 W hile that appeal was pending before the M arion County Property Tax Assessment Board of Appeals (“PTABOA”), Simon appealed the mall’s 2007 assessment.35 The PTABOA reduced the mall’s 2006 assessm ent to $28,000,100 and its 2007 assessment to $20,000,000 in two separate decisions. Still unsatisfied with36 the values, Simon appealed to the Board.37 At the Board hearing, Simon presented testimony “explaining that in the spring of 2007, it began to market the M all for sale because it was suffering from vacancy and leasing issues and the property no longer fit Simon’s strategic investment mission.” Ultimately, Simon closed on the sale with the highest38 bidder, Ashkenazy. Simon also presented analysis prepared by Sara Coers, a39 certified general appraiser and an M AI (Coers Analysis). The Coers Analysis40 “independently verified the terms of the M all’s sale and concluded that it had been consummated in an arm’s-length transaction.” It also developed trending41 factors. The record showed that the Coers Analysis relied on a number of42 sources to develop these findings, including changes between January 2005 and D ecember 2007 in the capitalization rates applicable to sales of regional malls, cost of consum er goods and services, and the cost to construct real property improvements. In this case, Simon argued that the mall’s 2006 assessment43 32. Id. at 66. All three are part of the Simon Property Group. Id. 33. Id. 34. Id. 35. Id. 36. Id. 37. Id. 38. Id. at 66-67. 39. Id. at 67. 40. Id. “The MAI designation is held by individuals who are experienced in the valuation and evaluation of commercial, industrial, residential and other types of properties, and who advise clients on real estate investment decisions.” Designation Requirements, APPRAISAL INST., http://www.appraisalinstitute.org/designation-requirements/ [https://perma.cc/2BHZ-J58Q] (last visited May 10, 2017). 41. Simon, 52 N.E.3d at 67. 42. Id. “A trend is the general direction the market is taking during a specified period of time. Trends can be both upward and downward, relating to bullish and bearish markets, respectively. While there is no specified minimum amount of time required for a direction to be considered a trend, the longer the direction is maintained, the more notable the trend.” Trend Analysis, INVESTOPEDIA, http://www.investopedia.com/terms/t/trendanalysis.asp [https://perma.cc/ZM65- BYJR] (last visited May 6, 2017). 43. Simon, 52 N.E.3d at 67 n.3. 2017] ADM INISTRATIVE LAW 1119 should have been $15,281,398 and its 2007 assessment should have been $16,849,758.44 The M arion County Assessor (“Assessor”), on the other hand, challenged whether the mall’s sale was an arm’s-length transaction because of the seemingly quick sale, the gradual declination of the mall’s value, the faulty calculation of the trending factors in the Coers Analysis, and that the sale price did not reflect value-in-use. The Assessor submitted an income approach that she prepared45 valuing the mall at $34,600,000 for 2006 and $30,800,000 for 2007.46 Following the hearing, the Board decided the m all’s December 2007 sales price of $18,000,000 was “the best indication of its market value as of that date”47 and that “Simon’s evidence established a prima facie case that its 2006 assessment should have been $15,281,398 and its 2007 assessment should have been $16,849,758.” The Assessor appealed, arguing that the Board’s decision48 was contrary to law, or constituted an abuse of discretion because it was unsupported by substantial or reliable evidence.49 The court summarily dismissed the Assessor’s argument that the Board’s decision was contrary to law. The court noted that because the Assessor failed50 to present a sufficient legal analysis on the issue, it waived the argument. N ext,51 the court addressed the Assessor’s claim that the Board’s decision was an abuse of discretion. T o succeed, the Assessor had to show that the Board “either52 misinterpreted the law or acted clearly against the logic and effect of the facts and circumstances before it when it relied on the M all’s sales price and the Coers Analysis to reduce the M all’s assessed value.” The Assessor argued that the53 B oard erred because: (1) the mall’s 2007 sale was “too remote from either valuation date of January 1, 2005 or January 1, 2006 to be considered relevant[;]” (2) the 2007 sale was only one sale and thus not indicative of the54 market; (3) the valuation presented by Simon incorrectly included the Ayres55 (M acy’s) store and M ichael’s Tire Improvements because the sale did not encompass those stores; and (4) the analysis by Sara Coers was flawed because56 she failed to link the trending factors to the mall’s value and failed to take into account the declined value of the mall between January 2005 and December 44. Id. at 67. 45. Id. 46. Id. at 68. 47. Id. 48. Id. 49. Id. 50. Id. at 69. 51. Id. 52. Id. 53. Id. 54. Id. 55. Id. at 70. 56. Id. at 71-72. 1120 INDIANA LAW REVIEW [Vol. 50:1115 2007.57 The court was unpersuaded by these arguments. First, the court noted the58 “administrative record in this case reveals that Simon presented evidence indicating that it sold the M all to Ashkenazy for $18,000,000 in a transaction” where the buyer and the seller were typically motivated, well-informed, and acted in their own best interests; the M all was exposed on the open market for a reasonable period of time; the payment for the M all was made in terms of cash or a comparable arrangement; the M all’s sales price was unaffected by any special financing or concessions; and Ashkenazy purchased the M all with the intent to continue operating it as a mall.59 The onus was, therefore, on the Assessor to submit evidence to the Board that demonstrated that the sale was not an arm’s-length transaction or that other comparable properties were selling for more than the sale price. T he A ssessor60 could not meet its burden.61 Second, the court addressed the Assessor’s argument that the Coers Analysis did not support or relate the 2007 sales price to the valuation dates. In particular,62 the Assessor argued that the Coers evidence was improper because the Assessor showed: “1) the M all declined in value between January 2005 and December 2007[;] 2) the trending factors contained in the Coers Analysis had no relevance to the M all’s value; and 3) the trending factors were applied to the M all’s sales price by Simon’s attorney and not by an appraiser.” A gain, the court was63 unconvinced. The Coers Analysis was not meant to value the property, but to64 verify the terms of the sale and to develop trending factors. In fact, “as a65 certified general appraiser . . . she could not— and would not— render any independent opinion as to the value of the M all or whether the $18,000,000 represented the value of the M all.” So, in other words, the A ssessor argued that66 the Board could not rely on an opinion that M s. Coers could not provide.67 Third, the court rejected the Assessor’s claim of a gradual decline. Although68 the Assessor argued that the M acy’s store and M ichael’s Tire Superstore were not part of the transaction, the administrative record indicated otherwise. And69 57. Id. at 72. 58. Id. at 69-72. 59. Id. at 70. 60. Id. at 71. 61. Id. 62. Id. 63. Id. 64. Id. at 71-72. 65. Id. at 72. 66. Id. 67. Id. at 72-73. 68. Id. at 72. 69. Id. 2017] ADM INISTRATIVE LAW 1121 because those stores were included in the sale, the declination of value calculation was more drastic than the Assessor presented.70 Finally, the Assessor’s argument about the trending factors was similarly unsupported. And because the court had no authoritative sources to indicate how71 they should be calculated, it held the Assessor failed to show the trending factors in the Coers Analysis were improper.72 In sum, the court upheld the Board’s factual determinations because the A ssessor could not show, through authority or evidence, that the Board either “misinterpreted the law or acted clearly against the logic and effect of the facts and circumstances before it.”73 The same standards of review that apply to state agencies also apply to local agencies. The court of appeals’ decision in M acFadyen v. City of Angola is an74 example of the standard of review employed by courts to review agency decisions. This case brings to light the pervasiveness of the administrative state and the importance of the court’s analysis of state agency and local agency decisions.75 In M acFadyen, Trine University (“Trine”) petitioned the Angola Plan Commission (“Commission”) to vacate an unim proved portion of an alley on Trine property in the City of Angola. The M acFadyens, who owned an adjacent76 portion of the alley, objected, even though Trine’s petition did not involve the part of the alley along the M acFadyen’s lot or cut off access to the M acFadyen property. Trine presented evidence before the Commission that the value of the77 land that Trine did not own would not be diminished; in fact, Trine’s activities in the area may have increased property values. The M acFadyens disagreed. M r.78 79 M acFadyen testified that vacation of the “part of the alley on Trine’s property would have ‘substantial negative impact’ on the value of his property because ‘[o]ne could drive west through the alley all the way to College (now University) [Street], or turn southbound to access G ale Street. [Trine] now seeks to cut off this access.” The Commission approved Trine’s petition, and the M acFadyens80 sought judicial review, afforded to them through the relevant statute.81 70. Id. 71. Id. 72. Id. 73. Id. at 69, 73. 74. 51 N.E.3d 322 (Ind. Ct. App. 2016). 75. See generally id. 76. Id. at 324. 77. Id. 78. Id. 79. Id. 80. Id. 81. Id. Sometime after the MacFadyens sought judicial review, the legislature amended the statute at issue, Indiana Code section 36-7-4-1003, to remove the “aggrieved by” language. The legislature, however, kept untouched the party’s right to seek judicial review of zoning decisions like the one at issue. Id. at 324 n.1. 1122 INDIANA LAW REVIEW [Vol. 50:1115 On appeal, the court examined the M acFadyens’ claim that the Commission’s decision was clearly erroneous. The court also noted that “[w]hen reviewing a82 decision of a zoning board, we are bound by the same standard of review.”83 There is also a presumption that decisions of a zoning board, “as an administrative agency with expertise in the area of zoning problems[,]” are correct and “should not be overturned unless they are arbitrary, capricious, or an abuse of discretion. A decision is arbitrary, capricious, or an abuse of discretion if it is not supported by substantial evidence.” This is identical to the court’s84 review of a state agency decision under Indiana’s Administrative Orders and Procedures Act.85 Ultimately, the court ruled against the M acFadyens because they lacked standing: viz. they were not aggrieved by the Commission’s decision. The86 Commission heard evidence that the M acFadyens had access to the rear of their property and the value of the property was not diminished. Because the court87 cannot reweigh evidence, it affirmed the decision.88 B. Deference to Administrative Agencies’ Interpretation of Statutes They Are Charged with Enforcing A s the M acFadyen case demonstrates, courts review the factual determinations of administrative agencies with deference. Likewise, courts treat89 agency interpretations of the statutes they are charged with enforcing with deference. W hen faced with “two imperfect constructions of an inartfully90 drafted statute” in West v. Indiana Secretary of State, the Indiana Supreme Court deferred to agency statutory interpretation. In W est, an auto dealer with an91 existing facility in M adison County (“M adison Dealer”) planned to relocate to Hamilton County— a county with over 100,000 people. The proposed location92 would be within a radius of more than six, but less than ten, miles from several other dealers (“Dealers”). The D ealers protested, seeking declaratory judgment93 from the Auto Dealer Services Division of the Office of the Indiana Secretary of State (“Division”) pursuant to a statute that permits dealers to protest the establishment or relocation of a dealership, Indiana Code section 9-32-13-24.94 82. Id. at 325. 83. Id. 84. Id. at 325-26. 85. See IND. CODE § 4-21.5-5-14(d) (2016). 86. MacFadyen, 51 N.E.3d at 326. 87. Id. 88. Id. 89. Id. at 325. 90. See, e.g., West v. Ind. Sec’y of State, 54 N.E.3d 349, 355 (Ind. 2016). 91. Id. 92. Id. at 351. 93. Id. 94. Id. 2017] ADM INISTRATIVE LAW 1123 The manufacturer of the automobiles at issue filed a motion to dismiss. T he95 manufacturer claimed that the Dealers lacked standing because they were outside the “relevant market area,” as defined by Indiana Code section 9-32-2-20, which96 defines “relevant market area” as follows: (1) W ith respect to a new motor vehicle dealer who plans to relocate the dealer's place of business in a county having a population of more than one hundred thousand (100,000), the area within a radius of six (6) miles of the intended site of the relocated dealer . . . . (2) W ith respect to a: (A) proposed new motor vehicle dealer; or (B) new motor vehicle dealer who plans to relocate the dealer's place of business in a county having a population of not more than one hundred thousand (100,000); the area within a radius of ten (10) miles of the intended site of the proposed or relocated dealer . . . .97 The Division found the Dealers lacked standing because each dealer was outside of a six-mile radius. The court of appeals reversed, finding the98 Division’s interpretation of the statute unreasonable. The court of appeals99 determined the “proposed new motor vehicle dealer” language in subsection 20(2)(A) could not be limited to newly created dealerships since another statute, Indiana Code section 9-32-13-24(e), contemplates a proposed dealer’s move.100 The court determined that “a proposed new motor vehicle dealer is simply ‘a dealer that proposes to enter a market where that dealer is not already doing business.’” The court further determined that the “in a county” language in101 sections 20(1) and 20(2)(B) must refer only to dealers making an intra-county move. The court concluded because the M adison Dealer was not making an102 intra-county move, it fit under subsection 20(2)(A). Transfer was granted.103 104 The Indiana Supreme Court first discussed the deference granted to administrative agencies, noting that judicial review of agency action is “intentionally limited” in recognition of the agency expertise in its field. The105 court affirm ed the familiar principle that an agency’s interpretation of a statute it is charged with enforcing is entitled to “great weight,” and that if the agency’s 95. Id. 96. Id. 97. IND. CODE § 9-32-2-20 (2016). 98. West, 54 N.E.3d at 351. 99. Id. at 352. 100. Id. 101. Id. 102. Id. 103. Id. 104. Id. 105. Id. 1124 INDIANA LAW REVIEW [Vol. 50:1115 interpretation is reasonable, courts stop their analysis and need not move forward with any other proposed interpretation.106 The court then examined the language and legislative intent of the statute, and concluded the statute “reflects a legislative determination that relocating more than six miles away from another dealership in a densely populated area will not have such a negative effect on the market to allow incumbent dealers to stifle competition through the protest procedure.” The court explained that “the107 Statute contemplates three types of market disruptions that yield a specified relevant market area: (1) dealers ‘who plan[] to relocate’ in large counties, (2)(A) ‘proposed’ dealers, and (2)(B) dealers ‘who plan[] to relocate’ in small counties.” The protest range for dealers in the first category is six miles,108 whereas the protest range for the latter two categories results in a ten-mile area.109 The court then upheld the Division’s determination that this case fits squarely into the first category, because the M adison Dealer planned to relocate into a large county.110 C. Agency Fact-Finding Procedures Though the fact-finding decisions of agency decisions are treated with deference, agencies must nevertheless undergo proper fact-finding procedures. Union Township v. Department of Local Government Finance illustrates this111 point. In 2012, Union Township (“Township”) in St. Joseph County requested permission from the Department of Local G overnment Finance (“DLGF”) to impose an excess property tax levy to make up for a $40 million budget shortfall allegedly caused by an error in the calculation of the township’s net assessed valuation. The shortfall depleted a local fire protection territory’s reserves,112 requiring the Township to utilize its own financial reserves to cover the territory’s operating expenses. The Township indicated that the shortfall occurred because113 the valuation used by St. Joseph County to issue the tax bills was lower than the Township’s 2011 DLGF-certified budget. The Township filed two appeals114 115 with the DLGF pursuant to Indiana Code section 6-1.1-18.5-12, which permits civil taxing units to seek relief by stating that the unit will be unable to carry out its governmental functions and by supporting its allegations with reasonably 106. Id. at 353. 107. Id. at 355. 108. Id. at 354 (quoting IND. CODE § 9-32-2-20 (2016)). 109. Id. 110. Id. 111. 45 N.E.3d 523 (Ind. T.C. 2015). 112. Id. at 524. 113. Id. at 527. 114. Id. at 524. 115. Id. The second appeal was sent because the Township presumably had not received a determination on the first appeal. The DLGF later indicated it did not receive the first appeal, so the Township resent it. Id. at 524 n.1. 2017] ADM INISTRATIVE LAW 1125 detailed statements of fact. The D LG F denied the Township’s first appeal on116 three alternative grounds: (1) because the Township failed to utilize the DLGF’s prescribed appeal template; (2) because the Township failed to substantiate the alleged error; and (3) because the Township failed to request relief with sufficient specificity. The DLGF rejected the second appeal solely on the grounds that the117 Township failed to provide it with the actual county forms at issue.118 On appeal, the tax court determ ined the Township had provided documentation establishing the cause of the shortfall and the resulting impairment on the ability of the township and the fire protection territory to fund their operating budgets, thereby satisfying the Township’s requirements under Indiana Code section 6-1.1-18.5-12. The tax court found nothing in the statute requires119 a township to utilize a particular form in presenting its excess levy appeal, and the DLGF had therefore erred in denying the Township’s first appeal on this basis.120 The court also rejected the DLGF’s second argument that the Township had failed to substantiate the alleged error. The court noted the DLGF’s contention121 that it was required to use a previous year’s assessment was not on point, and observed that the DLGF has pointed to no evidence which would support a finding that the St. Joseph County Auditor had reduced the assessed valuation.122 The court pointed out that the DLGF failed to answer the “$40 million question:” whether an “error” existed.123 In addition, the court found the DLGF’s third reason for denying the first appeal— that the Township failed to request relief with the requisite specificity— unpersuasive. The court stated that “it is abundantly clear what124 relief Union Township seeks: it wants to recoup the $51,992 in property tax revenue it was unable to collect in 2011 as a result of the $40 million discrepancy.” Finally, with respect to the rejection of the second appeal, the125 court observed that the parties disagreed regarding whether the county forms had been provided, but explained it need not determine whether the DLGF erred in denying the Township’s appeal for that reason. The court described that both126 the first and second appeals to the DLG F hinge on whether a $40 million error gave rise to a property tax revenue shortfall, which is a factual question appropriate for the DLGF, not the tax court.127 The tax court reversed and remanded the case to the D LGF with instructions 116. Id. at 526. 117. Id. 118. Id. at 529. 119. Id. at 527. 120. Id. 121. Id. at 529. 122. Id. at 528. 123. Id. 124. Id. at 529. 125. Id. 126. Id. at 530. 127. Id. 1126 INDIANA LAW REVIEW [Vol. 50:1115 that it determine whether an error occurred to cause the $40 million discrepancy. If so, the DLGF was ordered to issue a correction to be applied to128 the Township’s levy limitations, and levy for the ensuing year to offset the cumulative effect caused by the error. The court concluded by stating that “this129 case demonstrates yet another instance where infirmities in the DLGF’s fact- finding process have hindered the tax court’s review of the final determination and certified administrative record.” The court then “strongly encourage[d] the130 DLGF to correct these infirmities so that its adjudicatory process can develop all the relevant facts and legal arguments for possible review by the Court.”131 D. Consideration of Evidence in Agency Proceedings Administrative agencies apply different rules of evidence in certain contexts, such as the admissibility of hearsay evidence. Blesich v. Lake County Assessor132 provides an example of the intersection of the rules of evidence with administrative law. Blesich and the St. John Township Assessor disagreed133 about the assigned value of a residential property. After a failed attempt to134 come to an agreement, Blesich appealed to the Lake County Property Tax Assessment Board of Appeals (“PTABOA ”). In April 2013, the PTABOA135 issued a Notification of Final Assessment Determination that reduced Blesich’s assessment some $25,000. Blesich was still unsatisfied, and appealed to the136 Indiana Board of Tax Review (the “Board”), electing to litigate the appeal under the Board’s small claims rules.137 At the Board hearing, Blesich presented an appraisal that valued his property more than $20,000 less than the PTABOA assessment, and he also presented a letter documenting the St. John Township Assessor’s previous offer to reduce Blesich’s assessment. This is where the seemingly benign decision earns its138 place in this review. Naturally, the Lake County Assessor (“Assessor”) objected to the appraisal and the letter, arguing that the appraisal was inadmissible hearsay and that the letter was irrelevant and concerned negotiations to which the Assessor was not a party. And in response, the Assessor provided the Board139 with details of sales data for several comparable properties indicating that the 128. Id. 129. Id. 130. Id. 131. Id. 132. See, e.g., Blesich v. Lake Cty. Assessor, 46 N.E.3d 1285 (Ind. T.C. 2015). 133. Id. 134. Id. at 1285. 135. Id. 136. Id. 137. Id. 138. Id. at 1285-86. 139. Id. at 1286. 2017] ADM INISTRATIVE LAW 1127 PTABOA’s valuation was “more than fair.”140 The Board issued a final determination, “finding that the A ppraisal was admissible hearsay evidence that was ‘arguably probative’ of the subject property’s value” but that it could not be the sole basis for a reduction of141 Blesich’s assessment because the Assessor had properly objected. The Board142 also found the settlement letter lacked probative value and ultimately decided that Blesich had not made a prima facie case for a reduction. Blesich appealed.143 144 On appeal, the Indiana Tax Court noted that it will reverse a final judgment of an agency if “it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of or short of statutory jurisdiction, authority, or limitations; without observance of the procedure required by law; or unsupported by substantial or reliable evidence.” Blesich’s main argument on appeal was that145 the Board erred in disregarding his offered appraisal and the settlement letter.146 He also complained that the Board failed to hold the administrative hearing in the time prescribed by statute. The court disagreed with Blesich on all counts.147 148 First, the court observed that because Blesich elected to litigate the case under the Board’s small claims rules— those rules provide that hearsay is admissible— the Board’s “final determination cannot be based solely upon hearsay evidence when it is properly objected to and does not fall within a recognized exception to the hearsay rule.” Here, the court decided the Board’s149 decision to exclude the appraisal was proper. The A ssessor properly objected150 to the appraisal, and Blesich did not provide the court with an applicable hearsay exception to offering the appraisal without the availability of cross-examining the appraiser.151 Second, the court disagreed with Blesich’s contention that the settlement letter should have been admitted. The court disposed of this issue in short152 order, noting that the Indiana Rules of Evidence “prohibit the use of settlement terms and settlement negotiations to prove either the liability for or the invalidity of a claim or its amount.”153 140. Id. The court also noted, in footnote 2, that Indiana Code section 6-1.1-15-3(b) required the County Assessor to defend the PTABOA’s valuation of Blesich’s property. Id. at 1286 n.2. 141. Id. at 1286. 142. Id. 143. Id. 144. Id. 145. Id. 146. Id. at 1286-87. 147. Id. at 1288. 148. Id. at 1287-88. 149. Id. at 1287. 150. Id. 151. Id. 152. Id. 153. Id. at 1288 (citing IND. R. EVID. 408). 1128 INDIANA LAW REVIEW [Vol. 50:1115 Third, the court rejected Blesich’s argument that he was prejudiced by the Board’s delay in holding a hearing. Blesich pointed out that the relevant statute,154 Indiana Code section 6-1.1-15-4(e), provides that “absent an extension, the Indiana Board was to issue its final determ ination on [an appeal from the PTABOA] within 90 days of its hearing.” The Board did not comply with this155 section. But despite B lesich’s contentions, he was not prejudiced by the156 Board’s delay. Instead, he waited when he could have sought judicial review157 (as the statute permitted). The court therefore affirmed the Board’s final158 determination.159 III. A GENCY TRANSPARENCY EXAM INED T he survey period has produced an unusual number of important and (in some cases) high-profile decisions concerning government transparency. In fact, there is a case currently pending that speaks to this very issue and concerns the Vice President of the United States.160 The first of these cases is an Indiana Supreme Court decision that addressed separation of powers issues in connection with the A ccess to Public Records A ct (“APRA”), Indiana Code section 5-14-3-1 to 5-14-3-10. In Citizens Action Coalition v. Koch, the Energy and Policy Institute had submitted three APRA161 requests to Indiana House Representative Eric Koch seeking correspondence with business organizations in relation to specific legislation. The first two requests162 were denied by the Chief Counsel of the Republican Caucus on the grounds that 154. Id. at 1289. 155. Id. at 1288. 156. Id. 157. Id. at 1289. 158. Id. at 1288-89. 159. Id. at 1289. 160. See Fatima Hussein, Mike Pence’s Redacted Emails Could Head to Indiana Supreme Court, INDYSTAR, http://www.indystar.com/story/news/politics/2017/02/07/mike-pences-redacted- emails-could-head-indiana-supreme-court/97570462/ [https://perma.cc/TS7Z-KRTW] (last updated Feb. 8, 2017, 8:12 PM). This case arose when Indianapolis labor attorney William Groth requested disclosure of communications and documents related to then-Governor Pence’s decision to hire a private organization to pursue a lawsuit against the United States following an executive order by President Obama regarding immigration. Id. Groth filed a request under the Indiana Access to Public Records Act and received documents that were redacted. Id. Particularly at issue is a “white paper” that was not disclosed. Id. The court of appeals sided with the Governor’s decision to withhold the document. Id. Groth has petitioned the Indiana Supreme Court for transfer. Id. Notably, however, the court of appeals’ opinion stated that the Citizens Action Coalition v. Koch case does not apply to the facts at issue and the request directed to the Governor. Groth v. Pence, 67 N.E.3d 1104, 1109 (Ind. Ct. App. 2017). 161. 51 N.E.3d 236 (Ind. 2016), reh’g denied, (July 12, 2016). 162. Id. at 239. 2017] ADM INISTRATIVE LAW 1129 it is “House tradition” to treat all correspondence as confidential. A complaint163 was then filed with the Public Access Counselor, who concluded that although the APRA applies to the Indiana General Assembly, the majority of the information requested is exempted from disclosure under the APRA pursuant to the legislative work product exception. A third request was made to164 Representative Koch and was again denied, this time also on grounds of legislative work product. The Public Access Counselor again determined that165 the information sought in the third request was exemptible because the “disclosure or denial of the work product is at the discretion of the legislature.”166 The E nergy and Policy Institute, joined by Citizens Action Coalition of Indiana and the Common Cause of Indiana (“Plaintiffs”), filed a complaint in trial court against Representative Koch and the Indiana House Republican Caucus (“D efendants”). Defendants moved to dismiss, arguing that the Plaintiffs’167 requests should be found non-justiciable because they would “interfere with the internal workings of the legislature.” A lternatively, D efendants argued that (1)168 two of the Plaintiffs lacked standing to sue; (2) neither Representative Koch nor the Republic Caucus is a “public agency” subject to the APRA; and (3) the Caucus was not a proper party because the requests were only made to Representative Koch. The trial court granted the motion to dismiss finding the169 issue non-justiciable, without reaching the other arguments. The Plaintiffs170 appealed and sought immediate review by the Indiana Supreme Court, which the Indiana Supreme Court granted.171 The Indiana Supreme Court first explained the distinction between jurisdiction and justiciability, noting that jurisdiction addresses the power of a court to decide a case or issue a decree, while justiciability addresses whether the issue is appropriate or suitable for adjudication by the court. The court172 explained that it has subject matter jurisdiction over the case pursuant to Indiana Appellate Rule 56(A), which permits the Indiana Supreme Court to accept jurisdiction over a case that would otherwise be at the court of appeals “upon showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination.”173 Turning to the issue of justiciability, the court noted that it may determine that an issue over which it has subject matter jurisdiction is nevertheless non-justiciable 163. Id. 164. Id. 165. Id. 166. Id. 167. Id. 168. Id. 169. Id. at 239-40. 170. Id. at 240. 171. Id. 172. Id. 173. Id. at 240-41. 1130 INDIANA LAW REVIEW [Vol. 50:1115 “for prudential reasons.” The court explained that it “should not intermeddle174 with the internal functions of either the Executive or Legislative branches of Government.”175 The court examined the APRA and determined the General Assembly had not created an exemption reserving to the legislative branch the authority to determine whether the A PRA would apply to the legislature, and also found that no constitutional provision expressly reserves this right to the legislative branch, either. Accordingly, the court found the question of whether the APRA applies176 to the legislature to be justiciable. The court then determ ined that the APRA177 clearly contemplates application to the General Assembly and its members because the statute contains a specific exemption for the work product of individual General Assembly members and partisan staffs. Accordingly, the178 court held the APRA does apply to the General Assembly and its members.179 The court then turned to the question of whether the requested information constitutes “work product” exemptible from disclosure under the APRA. The180 court noted that “work product” is not defined by rule or statute. The court181 declined to implement a “court-created” definition of the word, explaining that “to define for the legislature what constitutes its own work product, and to then order the disclosure of such documents, would indeed be an interference with the internal operations of the G eneral A ssembly.” The court further explained that182 defining work product “falls squarely within a ‘core legislative function’” because only the General Assembly can properly define what work product may be produced while engaging in its legislative duties. The court finally observed183 that the statute establishing the legislative work product exemption permits the exemption to be exercised “at the discretion of a public agency,” thereby expressly reserving to the General Assembly the authority to disclose or not disclose work product.184 Justice Rucker submitted a separate opinion concurring in part and dissenting in part. Justice Rucker agreed that APRA applied and that the question of185 whether it applied was justiciable. However, he pointed out that though186 Representative Koch and the Republican Caucus made the “work product” 174. Id. at 241. 175. Id. (quoting State ex rel. Masariu v. Marion Super. Ct., 621 N.E.2d 1097, 1098 (Ind. 1993)). 176. Id. at 241-42. 177. Id. at 241. 178. Id. at 242. 179. Id. 180. Id. 181. Id. 182. Id. 183. Id. 184. Id. 185. Id. at 243 (Rucker, J., concurring in part, dissenting in part). 186. Id. 2017] ADM INISTRATIVE LAW 1131 argument originally in response to the APRA request, they did not make this argument on appeal: “[C]onspicuously absent from Defendants’ second reason is any mention whatsoever of ‘work product’ as a ground for dismissal.”187 Justice Rucker noted that the majority attempted to circumvent this issue by citing authority for the proposition that the court “m ay affirm the grant of a motion to dismiss if it is sustainable on any theory.” However, Justice Rucker188 pointed out that the trial court did not grant the motion to dismiss, but simply refused to address the issue on justiciability grounds. As such, he concluded,189 it cannot be said that the court is affirming the trial court’s grant of a motion to dismiss. He also pointed out that the trial court’s judgment must be supported190 by the evidence, noting “affirming the trial court on an alternative theory is appropriate only ‘where the parties have addressed themselves to the merits of the theory on which the judgment is ultimately sustained.’”191 Justice Rucker stated that while the APRA unquestionably exempts from disclosure the work product of the General Assembly, the Defendants did not raise this argument before either the trial court or the Indiana Supreme Court.192 He also noted that “Defendants never alleged a work product exemption or asserted emails, draft records, notes, minutes, scheduling records, text messages, and all other correspondence or records fall within the exemption umbrella.”193 He concluded, “The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record. I would refrain from so doing and instead remand this matter to the trial court for further proceedings.”194 ESPN, Inc. v. University of Notre Dame Police Department was one of the195 highest profile cases of the year, resolving a recurring and thorny public access issue; viz. whether a university police department is a “public agency” within the meaning of the APRA. In this case, an ESPN investigative reporter requested196 information from the Notre Dame Security Police Department (“Department”) about 275 student-athletes. The Department “was established in 1977 by197 Resolution of the University of Notre Dame trustees” and was granted general police powers. The Department also enforces student code and other rules,198 offers private transportation to students with private needs, escorts students at night, and “coordinates internal disciplinary reviews, and implements safety 187. Id. at 244. 188. Id. 189. Id. 190. Id. 191. Id. (quoting Havert v. Caldwell, 452 N.E.2d 154, 157 (Ind. 1983)). 192. Id. at 244-45. 193. Id. at 245 (internal quotations omitted). 194. Id. 195. 62 N.E.3d 1192 (Ind. 2016). 196. Id. at 1196. 197. Id. at 1193-94. 198. Id. at 1193. 1132 INDIANA LAW REVIEW [Vol. 50:1115 educational programs.”199 The request was broad, encompassing all incident reports, whether the student-athlete was “named as a victim, suspect, witness, or reporting party.”200 The Departm ent denied the request, relying on three previous Public Access Counselor (“PAC”) advisory opinions “that concluded private university police departments are not ‘lawful enforcement agencies’ under Indiana’s Access to Public Records Act.” ESPN filed a formal complaint with the PAC, alleging a201 violation of the APRA. The PAC deviated from his predecessors, deciding that202 the D epartment was a “public law enforcement agency” and thus subject to APR A ’s disclosure requirements. In doing so, he reasoned that the203 “Department was acting under the color of law by enforcing the Indiana criminal code.” ESPN then renewed its request with the Departm ent, which was again204 denied. ESPN made yet another request, albeit a more specific one, seeking205 daily logs. The Department denied the request, and ESPN filed a second formal206 complaint with the PAC. The PAC concluded the daily logs must be released,207 that incident reports may be released, and that the D epartment may withhold any investigatory records.208 ESPN then sued the Department. The trial court decided the Department209 was not a law enforcement agency under APRA, and was therefore not required to disclose the requested documents. ESPN appealed. ESPN argued that the210 211 Department fits into three definitions of a “public agency”: “[I]t is a ‘law enforcement agency,’” it exercises executive powers of the state, and it212 213 exercises traditional governmental power. ESPN also argued that the PAC214 opinions were entitled to consideration in support of legislative acquiescence; namely, that the legislature was aware of the decisions interpreting APRA and did not take corrective action. Presumably, none was needed. The court of appeals215 sided with ESPN and held the Department is a “law enforcement agency.” The216 199. Id. at 1193-94. 200. Id. at 1194. 201. Id. (citing IND. CODE § 5-14-3 (2014)). 202. Id. 203. Id. 204. Id. 205. Id. 206. Id. 207. Id. 208. Id. (citing IND. CODE § 5-14-3-4 (2014)). 209. Id. 210. Id. at 1194-95. 211. Id. at 1195. 212. Id. (citing IND. CODE § 5-14-3-2(n)(6) (2014)). 213. Id. (citing IND. CODE § 5-14-3-2(n)(1) (2014)). 214. Id. (citing IND. CODE § 5-14-3-2(n)(2)(C) (2014)). 215. Id. 216. Id. 2017] ADM INISTRATIVE LAW 1133 court declined to apply the doctrine of legislative acquiescence because the PAC’s opinions were not sufficiently long-standing.217 The Department sought transfer, which the Indiana Supreme Court granted.218 The court initially observed that the APRA was enacted with the purpose of providing transparency. The court also observed that while APRA should be219 “liberally construed,” that directive applied “in determining what records are subject to disclosure, not who is covered by APR A .” It further noted its220 responsibility to give statutory language its “plain meaning” and “give effect to the intent of the legislature.”221 Turning to the argument that the D epartment is a law enforcement agency, the court looked to the definition of “law enforcement agency” in APRA. The222 definition states, An agency or a department of any level of government that engages in the investigation, apprehension, arrest, or prosecution of alleged criminal offenders, such as the state police department, the police or sheriff’s department of a political subdivision, prosecuting attorneys, members of the excise police division . . . .223 ESPN argued that the Department is a “law enforcement agency” under this definition because it engages in government functions by exercising police powers. The Department, on the other hand, countered that it is not “any level224 of government” as required by a plain reading of the statute. The court agreed225 with the Department’s take.226 The court observed that private educational institutions “have been granted statutory authority to appoint police officers to protect their campuses[,]” that those officers are vested with general police powers, and that they are also “uniquely entrusted to enforce the rules and regulations of their appointing educational institution.” Since the officers take an oath “in the form and227 manner prescribed by the appointing governing board,” the Department acts228 under the control of the trustees, who are free from government interference.229 As such, the Department cannot fit the plain language in APRA that the law 217. Id. 218. Id. 219. Id. at 1196 (citing IND. CODE § 5-14-3-1 (2014)). 220. Id. (citing IND. CODE § 5-14-3-1 (2014)). 221. Id. at 1195-96 (internal citations omitted). 222. Id. at 1196. 223. Id. (quoting IND. CODE § 5-14-3-2(n)(6) (2014)). 224. Id. 225. Id. 226. Id. at 1197. 227. Id. (citing IND. CODE § 21-17-5-2, -5-4(a)(1), (3) (2016)). 228. Id. (quoting IND. CODE § 21-17-5-3 (2016)). 229. Id. 1134 INDIANA LAW REVIEW [Vol. 50:1115 enforcement agency be “of any level of government.” It is a university agency,230 not a state agency.231 Next, the court turned to ESPN’s argument that the Department is a public agency because it exercises police powers. ESPN tethered its argument to232 language in APRA that states, in relevant part, that a public agency includes “any . . . department, division, . . . agency, office, . . . by whatever name designated, exercising any part of the executive, . . . power of the state.” The Department,233 however, argued that it did not derive its power from the executive but from the trustees. The court took this argument to heart. Because the Department was234 exercising powers passed to it through the trustees, it was shielded from becoming a public agency despite the fact that the power the trustees were given came from the power of the state. Glossing over this point, the court continued235 and focused on the ancillary functions the Department performed. “W hile the236 trustees permit these officers to perform some traditional police functions, they are also tasked with many University-specific duties, for example, enforcing the student code, escorting students late at night, and acting as student caretakers.”237 Since there was no government control, the court noted, these “mere interconnections between a public and private entity are insufficient.”238 The court then cemented the issue using statutory interpretation principles.239 Specifically, the court opined that the Department could not be a public agency because to hold otherwise would be to interpret a statute in a way that renders a part of it meaningless or superfluous. And such an exercise is clearly240 antithetical to the goal of statutory interpretation to give words their plain meaning.241 The court added that if it found the Department was a public agency, such a conclusion would lead to two absurd results. First, because the Department is242 not separate from a private university, holding that the Department is a public agency would necessarily subject private universities to public scrutiny, which is clearly not intended under the law. Second, it would be absurd to count a law243 230. Id. 231. Id. The court rejected precedent from Ohio that ESPN offered, noting the dissimilar language in the relevant statute. Id. at 1197-98. 232. Id. at 1198. 233. Id. (quoting IND. CODE § 5-14-3-2(n)(1) (2014)). 234. Id. 235. Id. at 1199. 236. Id. 237. Id. 238. Id. (citing Perry Cty. Dev. Corp. v. Kempf, 712 N.E.2d 1020, 1026-27 (Ind. Ct. App. 1999) (internal citation and explanatory parenthetical omitted)). 239. Id. 240. Id. 241. Id. 242. Id. 243. Id. at 1199-1200. 2017] ADM INISTRATIVE LAW 1135 enforcement agency as a public agency because APRA requires disclosure of investigatory records, and those are expressly exempted for law enforcement agencies.244 The court, therefore, held the Department is not a public agency subject to APRA, and affirmed the decision of the trial court.245 V iolations of APRA can, in some cases, entitle the requesting party to attorneys’ fees. M arion County Election Board v. Bowes addressed that very246 247 issue and involved a pro se attorney’s claim for attorney fees and expenses after the attorney brought a successful claim under the APRA on behalf of himself and others. The attorney had submitted a request to the M arion County Board of248 Voter Registration (“M CVR”) for electronic records containing information on M arion County voters. The M CVR responded that it could not provide copies249 of voter registrations because the M arion County Election Board (“M CEB”) had not yet adopted a uniform policy on the issues as required by Indiana law. The250 M CVR claimed that this was not a denial under the APRA, but rather an acknowledgement that a condition must be satisfied before the M CVR could respond more fully. The attorney took the matter to the Indiana Public Access251 Counselor, who agreed that the M CEB needed to adopt a uniform policy, but advised that this action needed to be taken immediately because the M CEB may not refuse to adopt a policy as a way to avoid responding to an A PRA request.252 After receiving the Public Access Counselor’s advisory opinion, the attorney sued in trial court on behalf of other plaintiffs and himself. The trial court253 found in favor of the plaintiffs and set the matter for hearing on the issue of attorney fees and expenses. The attorney submitted evidence of $975 in actual254 expenses for deposition transcripts and filing fees, as well as $47,000 for his own attorney fees. T he attorney, who had been practicing for over thirty years and255 had experience in APRA matters, calculated the fees based on his hourly rate of $250. The trial court reduced the attorney’s hourly rate as well as his time for256 work spent benefitting the other plaintiffs, ultimately finding him entitled to approximately $7500 in attorney fees, plus all expenses. The trial court257 244. Id. at 1200. 245. Id. 246. See, e.g., Marion Cty. Election Bd. v. Bowes, 53 N.E.3d 1203 (Ind. Ct. App.), trans. denied, 57 N.E.3d 817 (Ind. 2016). 247. Id. 248. Id. 249. Id. at 1205. 250. Id. 251. Id. 252. Id. 253. Id. 254. Id. at 1205-06. 255. Id. at 1206. 256. Id. 257. Id. 1136 INDIANA LAW REVIEW [Vol. 50:1115 reasoned that the $7500 com pensated the attorney for missed work, other opportunities for employment, and time the attorney could have spent doing other activities.258 On appeal, the Indiana Court of Appeals explained that the general rule in the United States is that pro se litigants who are lawyers cannot earn attorney fees; independent counsel must be engaged. The court cited to Kay v. Ehrler, a259 260 U.S. Supreme Court case that explained the word “attorney” assumes an agency relationship. Kay was quoted by the Indiana Supreme Court for the proposition261 that public policy supports creating an incentive to retain counsel, because ethical considerations may prohibit pro se attorneys from appearing as witnesses and because engaging independent counsel offers litigants the opportunity to evaluate the case through an independent third party. The court distinguished the present262 case from a case in which an attorney, after successfully defending an allegedly frivolous Fair Debt Collection Protection Act claim by a former client, was awarded attorney fees in a subsequent malicious prosecution case. The court263 noted that the latter case involved damages allegedly suffered by the victim of a tort. In contrast, in the present case the court found the attorney fees were264 “speculative” because the attorney paid no money when he forewent potential business opportunities to pursue the litigation. The court reversed the portion265 of the trial court’s award of attorney fees, upholding only its award of $975 in expenses.266 Indiana’s Open Door Law is meant to ensure that Hoosiers have access to the meetings of Indiana’s public agencies. Warren v. Board of School Trustees of267 Springs Valley Community School Corp. addresses the outside parameters of268 the Open Door Law. W arren was a second grade teacher at Springs Valley269 Elementary School until December 2012. The facts giving rise to this case270 occurred in November 2012. In November, W arren reprimanded a student who271 failed to make an effort on an examination. In fact, “[w]hen W arren discovered272 258. Id. 259. Id. at 1207. 260. 499 U.S. 432, 435-36 (1991). 261. Bowes, 53 N.E.3d at 1207. 262. Id. at 1208 (citing Miller v. West Lafayette Cmty. Sch. Corp., 665 N.E.2d 905, 906-07 (Ind. 1996)). 263. Id. at 1209. 264. Id. 265. Id. at 1210. 266. Id. 267. IND. CODE § 5-14-1.5-1 (2016). 268. 49 N.E.3d 559 (Ind. Ct. App. 2015), reh’g denied, (Apr. 15, 2016). 269. IND. CODE § 5-14-1.5 to -8 (2016). 270. Warren, 49 N.E.3d at 561. 271. Id. 272. Id. 2017] ADM INISTRATIVE LAW 1137 the student’s lack of effort, she took the student to see the school principal” and273 on the way to the principal’s office, another teacher overheard W arren (who was crying and upset) say she was going to kill the student. W hen W arren arrived274 at the principal’s office, she demanded to see an administrator but none were available. She exclaimed, “If you don’t get me an administrator now, I’m going275 to kill her!” None of the secretaries believed the threat to be credible, but they276 nonetheless sent W arren home early.277 On November 26, 2012, W arren received written notice of the principal’s preliminary decision to terminate her employment because of her violation of a school rule prohibiting threats or acts of violence. W arren requested a private278 conference with the superintendent in accordance with statutory termination procedures for teachers. After the conference concluded a few days later, the279 superintendent issued a recommendation to the Board of Trustees of the Springs Valley Community School Corporation (“Board”) to terminate W arren. W arren280 then timely requested a private conference with the Board. The superintendent281 responded to W arren with a notice outlining the time, place, and procedure for the B oard conference, noting that a special meeting would be held following the executive session. The Board also gave public notice of the meeting, which282 provided that the executive session would begin at 5:00 PM and that a regular session would begin at “7:00 P.M . or immediately following the Executive Session, whichever comes later.”283 The Board conducted the private conference during an executive session at the time and place provided in the public notice. W arren attended with her284 attorney and a union representative and the B oard heard testimony “from nine different witnesses and received twelve exhibits.” After the conference, the285 Board left to deliberate. D uring that time, the Board’s attorney offered a286 settlement, and W arren presented a counteroffer, remaining in a separate room “expecting to hear again from the school board attorney.” Deliberations,287 however, continued for hours and W arren did not receive a response to her 273. Id. 274. Id. 275. Id. 276. Id. 277. Id. 278. Id. at 562; see also IND. CODE § 20-28-7.5-2 (2016). 279. Warren, 49 N.E.3d at 562. 280. Id. 281. Id. 282. Id. 283. Id. 284. Id. 285. Id. 286. Id. at 563. 287. Id. 1138 INDIANA LAW REVIEW [Vol. 50:1115 counteroffer. “Then, at approximately 2:30 A.M ., W arren noticed through a288 window that cars were leaving the parking lot outside.” It turns out that the289 Board made its decision, held a public meeting and voted to terminate W arren’s contract without notifying W arren that the executive session had ended. The290 meeting memorandum stated that the Board’s regular (public) session began at 2:25 AM and voted to terminate W arren at 2:33 AM . W arren was unaware of291 the public m eeting, although several members of the public attended, including W arren’s sister and stepmother.292 W arren filed a claim for unemployment benefits, which the claims deputy denied because W arren was dismissed for cause; a decision the Review Board of the Indiana Department of W orkforce Development affirmed. W arren also filed293 suit against the Board alleging violations of Indiana’s Open Door Law, which she later amended to include claims for breach of contract and defamation. The294 Board filed for summary judgment on all claims, noting specifically that W arren was estopped from asserting her breach of contract claim because of the court’s prior determination (in the unemployment benefits case) that she was terminated for just cause. The trial court granted the Board’s motion, and W arren295 appealed.296 On appeal, the court held neither W arren’s breach of contract claim nor her defamation claim were collaterally estopped by the decision of the Indiana Department of W orkforce Development because that adjudication was “solely concerned with the existence of just cause.” Yet the court ultimately ruled for297 the Board on those claims: because W arren “failed to demonstrate the grant of summary judgment on these claims was otherwise improper” and because she298 “ma[de] no argument and provide[d] no citations to designated evidence showing a genuine issue of material fact relevant to these claims[,]” she waived299 appellate review.300 Turning to the Open Door Law claim, the court considered W arren’s argument that the Board provided inadequate notice of the date and time of the public meeting after the executive session, and the Board’s contention that even 288. Id. 289. Id. 290. Id. 291. Id. 292. Id. 293. Id.; see also Warren v. Review Bd. of Ind. Dep’t of Workforce Dev., No. 93A02-1311- EX-949, 2014 WL 1390567 (Ind. Ct. App. May 7, 2014). 294. Warren, 49 N.E.3d at 563. 295. Id. 296. Id. at 563-64. 297. Id. at 564-65. 298. Id. at 566. 299. Id. 300. Id. 2017] ADM INISTRATIVE LAW 1139 if there was a violation, it was merely a technical one. The court held the public301 notice failed to satisfy the Open Door Law’s notice requirement “because the School Board convened the meeting at a time unreasonably departing from the time stated in the notice.” Citing the purpose of the law, the court explained302 how the Board’s public notice lacked sufficient specificity. The court stated,303 “[The Open Door Law] requires public notice of the ‘date, time, and place of any meetings,’ and ‘whichever comes later’ is not a concrete ‘time’ from the public’s perspective.” And, the court also expounded on the weakness of the Board’s304 argument that the violation was merely a technical violation. Specifically, the305 court noted: The notice for the meeting did not comply with the requirements of the Open Door Law, and the violation both impaired public access to the meeting and affected the substance of the final action taken at the meeting. The School Board voted to cancel W arren’s contract by a 4-0-3 vote, with three members abstaining. H ad the meeting been timely held with proper notice, the designated evidence shows W arren would have attended and objected to two of the board members voting, both of whom voted in favor of her termination.306 Thus, the meeting was “plainly contrary to the purpose of the Open Door Law.”307 The court reversed the trial court’s decision on the Open Door Law claim.308 An ancillary issue arose in this case that warrants some attention. W arren filed a “M otion to Compel Answers to Deposition Questions regarding communications that occurred during the School Board’s executive session.”309 The court noted that the Open Door law “permits public agencies to meet in executive session for limited purposes” but that it does not expressly address whether discussions during such sessions are privileged. The court observed310 that W arren’s discovery request “goes to deliberative processes of the School Board and its members[,]” which is improper. Thus, the court held the311 deliberations are not discoverable “because ‘judicial inquiries into the private motivation or reasoning of administrative decisionmakers is a substantial 301. Id. 302. Id. at 567. 303. Id. 304. Id. 305. Id. at 568. 306. Id. (internal citations omitted). 307. Id. 308. Id. at 569. 309. Id. 310. Id. 311. Id. at 570 (citing Med. Licensing Bd. of Ind. v. Provisor, 669 N.E.2d 406, 409 (Ind. 1996) (holding there is a “general bar against probing the mental processes involved in administrative decision-makers’ deliberations”). 1140 INDIANA LAW REVIEW [Vol. 50:1115 intrusion into the functions of the other branches of government.’”312 IV. PROCEDURAL D UE PROCESS All administrative agencies must comport with traditional due process principles. The following cases are emblematic of how courts address these issues and continue to consistently apply due process principles despite the myriad of scenarios that come through the administrative process. The Indiana Professional Licensing Agency (“IPLA”) filed an administrative complaint before the Indiana Athletic Trainers Board (“Board”) against an athletic trainer for engaging in a consensual sexual relationship with a nineteen- year-old high school student in her care. The complaint alleged that the trainer313 “engaged in a course of lewd or immoral conduct in connection with delivery of services to the public” and that she “engaged in sexual contact with an athlete in her care,” thereby violating Indiana Code sections 25-1-9-4(a)(5) and 4(a)(11).314 Due to embarrassment the trainer felt over the allegations and the fact that the D eputy Attorney General intended to display nude photographs that the trainer exchanged with the student, the trainer chose to send her attorney to appear on her behalf, and to admit the factual allegations but not the sanctions. The Board315 determined the presence of only the trainer’s attorney was insufficient, and issued a Notice of Proposed Default. After a hearing, the Board unanimously found316 the trainer in default and in violation of Indiana Code sections 25-1-9-4(a)(5) and 4(a)(11), and placed her on indefinite suspension for seven years.317 The trainer filed a complaint under 42 U.S.C. § 1983, arguing the decision violated her constitutional rights, and she also sought administrative review under the A O PA . The Board and the IPLA moved to dismiss the complaint on the318 grounds that the agency record was not filed within thirty-two days of the filing of the complaint. After awaiting the decisions in Teaching Our Posterity319 Success, Inc. v. Indiana Departm ent of Education, 20 N.E.3d 149 (Ind. 2014), and First American Title Insurance Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014), amended on reh’g, 27 N.E.3d 768 (Ind. 2015), the trial court ultimately320 312. Id. (quoting Med. Licensing Bd., 669 N.E.2d at 409). 313. Melton v. Ind. Athletic Trainers Bd., 53 N.E.3d 1210, 1212-13 (Ind. Ct. App. 2016). 314. Id. 315. Id. at 1213. 316. Id. 317. Id. 318. Id. 319. Id. 320. Id. at 1214 n.2. Both of these cases underscored the Indiana Supreme Court’s bright-line rule that failing to file the administrative record as defined by the AOPA results in dismissal of the petition for judicial review of an administrative decision. For a full review of these cases, see Joseph P. Rompala, Survey of Indiana Administrative Law, 48 IND. L. REV. 1147, 1157 (2015); see also Tabitha L. Balzer & Manny Herceg, Survey of Indiana Administrative Law, 49 IND. L. REV. 929 (2016). https://doi.org/10.18060/4806.0037 https://doi.org/10.18060/4806.01114 2017] ADM INISTRATIVE LAW 1141 dismissed both counts of the complaint.321 The court of appeals reversed on due process grounds, without addressing the tim ing of the filing of the agency record. The court explained that the due322 process claim required consideration of two factors: whether there was a deprivation of a constitutionally protected property or liberty interest, and if so, a determination of what procedural safeguards are required. The court found323 the first factor satisfied, explaining that the right of a person to a license for employment is a recognized property interest. The second factor turned on the324 proper interpretation of the word “party” in Indiana Code section 4-21.5-3-24, the statute governing default or dismissal under the AOPA. The court held the term325 “party” includes counsel, and the trial court therefore erred in entering its notice of default. To determine whether this error violated due process, the court then326 examined the three factor due process test: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, along with the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.327 The court found the private interest at stake to be of paramount importance to the trainer, there was no government interest in disregarding the procedures established by the legislature, and the risk of erroneous deprivation was great because she was not entitled to any further process. The court concluded the328 trainer was denied an opportunity to be heard “at a meaningful tim e and in a m eaningful manner,” the fundamental requirement of due process. The case329 was remanded with orders to vacate the Board’s decision and to provide the trainer with an administrative hearing that comports with the dictates of due process.330 In re F.S. addressed the issue of whether compelling a parent to permit the Department of Child Services (“DCS”) to interview her children based solely on the uncorroborated accusations of an undisclosed informant violates due process. The mother had four children and was living with the father of her two331 321. Melton, 53 N.E.3d at 1214. 322. Id. at 1212, 1220. 323. Id. at 1215. 324. Id. at 1216. 325. Id. at 1216-17. 326. Id. at 1218-19. 327. Id. at 1219 (citing Mathews v. Eldridge, 424 U.S. 319, 321 (1976)). 328. Id. at 1220. 329. Id. (quoting Mathews, 424 U.S. at 333). 330. Id. 331. 53 N.E.3d 582, 585 (Ind. Ct. App. 2016). 1142 INDIANA LAW REVIEW [Vol. 50:1115 youngest children. The family had a history of DCS contacts, including a recent332 Child in Need of Services (“CHINS”) case, and the mother was on probation for theft. On four separate occasions within a month, an anonymous caller333 contacted DCS alleging drug use by the parents in the presence of the children, domestic abuse in front of the children, and an unsafe home environment. DCS334 investigated the first allegation by m aking a home visit, and found no evidence of drug use or an unsafe home. Though the mother refused a drug test, DCS335 ultimately closed the case after meeting with the mother again in the presence of her attorney and after the father took a drug test. DCS ruled the allegations336 unsubstantiated.337 The second anonymous report to DCS coincided with an anonym ous report to the county probation department. The probation officer, a DCS case338 manager, and a police officer went to the home together to investigate the allegations. The mother denied entry to DCS but permitted the other two to339 enter. The probation officer requested a urine sample from the mother at the340 home, but rejected the sample given on grounds of color and temperature.341 However, a second sample was taken at the police department and the screen came back clean.342 The probation officer told the DCS case manager that the home was in good shape, and the DCS case manager stated that she was satisfied there was no evidence of drug use in the home and that the children were safe. Despite this,343 DCS filed a motion to compel conduct, indicating that to complete an assessment, interviews with both parents and the children were needed. Prior to the hearing344 on the motion, another anonymous report was submitted to DCS, which alleged that the children were improperly disciplined in addition to the drug allegations. A DCS case manager investigated the home and determined it345 appropriate and that there was no evidence of domestic violence or drug abuse, though the mother did refuse a drug test.346 At the hearing, the mother’s counsel argued that “some quantum of evidence” was necessary for the children to be ordered to testify over their mother’s 332. Id. 333. Id. 334. Id. at 586-87, 598. 335. Id. at 586. 336. Id. 337. Id. 338. Id. 339. Id. 340. Id. 341. Id. 342. Id. 343. Id. 344. Id. at 587. 345. Id. 346. Id. 2017] ADM INISTRATIVE LAW 1143 objection. DCS responded that interviews with the children were necessary to347 perm it DCS to confirm or deny the allegations in the reports. The trial court348 issued an order allowing DCS to interview the oldest two of the four children, but stayed the order after the mother filed an appeal. Shortly thereafter while the349 appeal was pending, the mother was arrested after testing positive for methamphetamine and amphetamine. She signed a consent permitting her350 children to be interviewed, and the children were adjudicated CHINS after the mother admitted she was unable to care for the children while incarcerated.351 DCS argued that these subsequent events mooted the mother’s appeal.352 However, the court of appeals heard the case on its merits anyway, finding that the case “involves a matter of constitutional proportions and is of great public interest.” The court of appeals discussed both procedural due process (ensuring353 that a party will be given notice and an opportunity to be heard in a meaningful manner) and substantive due process (protection from laws that infringe upon a fundamental right or liberty interest deeply rooted in our nation’s history and from laws that do not bear a substantial relation to permissible state objectives).354 The court explained that the sanctity of family is deeply rooted in this Nation’s history and tradition, and therefore the Due Process Clause protects personal choice in family matters. This includes the rights of parents to raise their355 children without undue interference by the state, though the state has authority to intervene when parents neglect, abuse, or abandon their children.356 The court of appeals noted that DCS is statutorily required to investigate all reports of child abuse and neglect that it receives, but that the agency is not statutorily required to interview the child in all circumstances. A trial court may357 issue an order requiring children to be interviewed over the objection of their parents, but only if good cause is shown. To demonstrate good cause, D C S358 must allege more than merely that it needs to interview the child to complete its assessment; rather, DCS must show “some evidence beyond a report from an undisclosed source that neglect or abuse is occurring.” The court determined359 that in the present case, no such evidence was produced.360 The court of appeals concluded that the procedure for assessing reports of 347. Id. at 588. 348. Id. 349. Id. 350. Id. 351. Id. at 589-90. 352. Id. 353. Id. at 591. 354. Id. at 591-92. 355. Id. at 592. 356. Id. 357. Id. at 596-97. 358. Id. 359. Id. at 598. 360. Id. 1144 INDIANA LAW REVIEW [Vol. 50:1115 child abuse and compelling interviews with children does not necessarily violate due process. However, in the present case, the statutory procedure was not361 followed because DCS did not demonstrate any evidence that an interview was necessary.362 Accordingly, the court held that application of the law in the present case “impermissibly infringe[d] upon the parent’s fundamental right to raise her children without undue interference by the State.” The court concluded that the363 trial court erred by issuing an order requiring the mother to submit her children to an interview with DCS.364 C ONCLUSION This survey Article represents only a small number of decisions issued by Indiana’s appellate courts concerning, in one way or another, agency decisions and related issues. In other words, this Article is not comprehensive and only seeks to glean an understanding of how courts continue to address the diverse and complex issues arising out of the administrative process. Despite its limited scope, this Article hopefully addresses— for scholars, students, and H oosiers alike— the impact of administrative agencies on our daily lives and the courts’ diligence in its role. 361. Id. at 599. 362. Id. 363. Id. 364. Id. A. Exhaustion of Administrative Remedies