Thomas Clements v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
Feb 19 2013, 9:19 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
THOMAS R. CLEMENTS GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS CLEMENTS, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A03-1205-CR-200
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Charles C. Wicks, Judge
Cause No. 20D05-0601-FD-30
February 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Thomas Clements appeals the trial court’s denial of his verified petition to limit
access to criminal history. We do not reach the merits of his appeal, however, because
the trial court’s order is void for lack of personal jurisdiction.
We reverse and vacate the trial court’s order.
FACTS AND PROCEDURAL HISTORY
Clements filed his verified petition to limit access to criminal history on March 16,
2012. Clements sought an order from the trial court “to the State police department not
to disclose [information regarding charges in Cause Number 20D05-0601-FD-30] to any
non-criminal justice organization or individual[.]” Appellant’s App. at 11. Clements’
certificate of service indicated that he had served the Elkhart County Prosecutor’s office
and the State “central repository for records” with copies of his petition, but it did not
indicate that he had served the State Attorney General’s office. Id. at 12. The trial court
ultimately denied Clements’ petition, and he initiated this appeal.
DISCUSSION AND DECISION
The State points out that Indiana Trial Rule 4.6(A)(3) provides that service may be
made, “[i]n the case of a state governmental organization[,] upon the executive officer
thereof and also upon the Attorney General.” Our supreme court has clarified that
service upon the Attorney General is mandatory, despite use of the word “may” in the
rule. See Evans v. State, 908 N.E.2d 1254, 1258 (Ind. Ct. App. 2009) (citing Smock v.
State, 257 Ind. 112, 272 N.E.2d 611, 613 (1971)). And Professor William F. Harvey has
observed:
2
Normally, in suing a governmental agency or organization, service must be
made on the director or head of that agency, and upon the Attorney General
of Indiana. If the Attorney General is not served, then the time for an
Answer will not commence until that occurs. Indiana law is very firm on
the duty to serve the Attorney General, in addition to the head of agency[.]
1 William F. Harvey, Indiana Practice: Rules of Procedure Annotated § 4.6 at 341 (3d ed.
1999).
Because Clements did not serve the Attorney General, his service of process was
ineffective in this case. The trial court did not have personal jurisdiction over the
respondents and, therefore, could not enter any order in this case. See Guy v. Comm’r,
Ind. Bureau of Motor Vehicles, 937 N.E.2d 822, 826 (Ind. Ct. App. 2010). The trial
court’s order is void.
Reversed and trial court’s order vacated.
FRIEDLANDER, J., and BRADFORD, J., concur.
3