Molly A. Melton v. Indiana Athletic Trainers Board, David Craig, A.T., in his official and individual capacity, Larry Leverenz, A.T., in his official and individual capacity ( 2016 )

FILED
Apr 27 2016, 8:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Kevin W. Betz Gregory F. Zoeller
Courtney E. Endwright Attorney General of Indiana
Betz + Blevins Frances Barrow
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Molly A. Melton, April 27, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1508-CT-1123
v. Appeal from the Marion Superior
Court
Indiana Athletic Trainers Board, The Honorable Gary L. Miller,
David Craig, A.T., in his official Judge
and individual capacity, Larry Trial Court Cause No.
Leverenz, A.T., in his official 49D03-1403-CT-6878
and individual capacity, Scott
Lawrance, A.T. in his official
and individual capacity, Jennifer
Vansickle, in her official and
individual capacity, John Miller,
M.D., in his official and
individual capacity, and John
Knote, M.D., in his official and
individual capacity, and the
Indiana Professional Licensing
Agency,
Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016 Page 1 of 19
Appellees-Defendants.
Brown, Judge.
[1] Molly A. Melton appeals orders of the trial court granting a motion to dismiss
and a motion for judgment on the pleadings in favor of the Indiana Athletic
Trainers Board (the “Board”), David Craig, A.T., Larry Leverenz, A.T., Scott
Lawrance, A.T., Jennifer VanSickle, John Miller, M.D., John Knote, M.D.,
each in their individual and official capacities, and the Indiana Professional
Licensing Agency (the “IPLA”, and collectively with the Board and the other
named parties, the “Appellees”). The motion was filed following the Board’s
decision finding Melton in default and ordering that her Indiana athletic
training license be indefinitely suspended for a period of at least seven years.
Melton raises a number of issues, one of which we find dispositive and revise
and restate as whether the court erred in dismissing Melton’s complaint filed
under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We reverse and
remand.
Facts and Procedural History
[2] On August 2, 2012, Melton was hired by IU Health Paoli Hospital’s Rehab and
Sports Medicine Department as an athletic trainer. A few months later, she
began a consensual sexual relationship with a patient, who was a nineteen-year-
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old adult male high school student.1 On May 10, 2013, the State, through the
Indiana Professional Licensing Agency (“IPLA”), filed an administrative
complaint before the Board against Melton alleging that she “engaged in a
course of lewd or immoral conduct in connection with delivery of services to
the public” and “engaged in sexual contact with an athlete in her care” in
violation of Ind. Code § 25-1-9-4(a)(5) and -4(a)(11). Appellant’s Appendix at
15. The allegations recited in the complaint caused Melton “a great deal of
embarrassment and humiliation . . . .” Id.
[3] On September 17, 2013, the Board held a hearing on the matter, in which
Melton received proper notice of the hearing. Due to the embarrassment she
felt regarding the allegations, as well as the Deputy Attorney General’s
intention to display nude photographs she had exchanged with the student, she
chose to send her attorney to appear on her behalf at the hearing and admit to
the factual basis but not to admit to sanctions. The Board deemed the
appearance by only Melton’s counsel to be insufficient, and it issued a Notice of
Proposed Default.
[4] On September 27, 2013, Melton filed a motion responding to and opposing the
Notice of Proposed Default, in which she noted her reason for not appearing in
person, including “the direct embarrassment or direct humiliation that would
have been caused by such a hearing, particularly as Ms. Melton did not oppose
1
In her brief Melton asserts that she was twenty-three years old at the time she was hired. Appellant’s Brief
at 6. However, the record does not contain a statement relating to her age.
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the facts underlying this Complaint but only disputed the proposed punishment,
admissions, and sanctions sought by the Board.” Id. at 16. On November 20,
2013, Deputy Attorney General Amanda Elizondo (“DAG Elizondo”) sent
Melton’s counsel an email “stating that a hearing would ‘probably’ be going
forward,” and then on January 16, 2014, DAG Elizondo emailed Melton’s
counsel “that the hearing was ‘set for Tuesday.’” Id. at 16. The next day,
Crystal Heard of the IPLA sent an email “which simply stated that ‘[t]he
Default is on the agenda for January 21, 2014 at 10am.’” Id. Neither Melton
nor her counsel received notice from the Board of a hearing.
[5] On the morning of January 21, 2014, the Board held the hearing and, on
February 3, 2014, issued its Order stating that it had considered Melton’s
motion opposing the proposed default and that it found Melton in default by a
vote of 5-0. Also by a vote of 5-0, the Board concluded that Melton violated
Ind. Code § 25-1-9-4(a)(5), -4(a)(11), and it ordered that she be placed on
indefinite suspension for at least seven years and that prior to petitioning for
reinstatement she provide the Board proof of successful completion of a course
related to ethical boundaries in a patient-practitioner relationship.
[6] On March 6, 2014, Melton filed her Verified Complaint and Petition for
Review of Administrative Ruling (the “Complaint”) in which she brought, in
Count I, an action under 42 U.S.C. § 1983 that the Board’s Order violated her
federal constitutional rights, and, in Count II, she petitioned for review of the
Board’s Order under the Indiana Administrative Orders and Procedures Act
(the “AOPA”). On April 28, 2014, the Appellees filed their Answer to
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Complaint and Statement of Affirmative Defenses. That same day, the
Appellees filed a Motion to Dismiss Petitioner’s Verified Petition for Judicial
Review of the January 21, 2014 Order Entered by the Board, seeking to dismiss
Count II, because Melton “failed to file the agency record by April 7, 2014,”
which was thirty-two days after Melton filed her Complaint. Id. at 41. On July
1, 2014, the court held a hearing on the Appellees’ motion and continued the
hearing by agreement of the parties until after the Indiana Supreme Court ruled
on “the issue of what needs to be filed in terms of the Agency record.” July 1,
2014 Transcript at 2.
[7] On February 11, 2015, the Appellees filed their Renewed Motion to Dismiss
Petition for Review seeking dismissal of Melton’s petition for administrative
review “[n]ow that the Supreme Court has decided unequivocally that a case
must be dismissed when a party fails to file the agency record . . . .”2
Appellant’s Appendix at 80-81. That same day, the court granted the
Appellees’ motion with respect to Count II and “ordered that Ms. Melton’s
petition for judicial review is hereby DISMISSED.” Id. at 9.
[8] On April 10, 2015, the Appellees filed their motion for judgment on the
pleadings (the “12(C) Motion”) seeking dismissal of Melton’s § 1983 claim. On
April 28, 2015, Melton filed her response in opposition to defendants’ motion
2
On November 13, 2014, the Indiana Supreme Court handed down Teaching Our Posterity Success, Inc. v. Ind.
Dep’t of Educ., 20 N.E.3d 149 (Ind. 2014), as well as First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind.
2014), amended on reh’g by, 27 N.E.3d 768 (Ind. 2015) which addressed issues relating to the filing of an
agency record on petitions for judicial review.
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for judgment on the pleadings, and on May 4, 2015, she requested a hearing.
On May 12, 2015, the court rejected Melton’s request for a hearing, in which
the court wrote: “case was dismissed 2/2015.”3 Id. at 170. On June 4, 2015,
Melton filed her Motion for Reconsideration and/or Motion to Clarify Court’s
Order on Plaintiff’s Motion for Hearing on Defendants’ Motion for Judgment
on the Pleadings (the “Motion to Reconsider”) which stated that the court
“[had] yet to substantively rule on Ms. Melton’s Section 1983 claim” and that
the court’s “February 2015 Order dismissed only Ms. Melton’s petition for
administrative review (not her Section 1983 claim).” Id. at 171. On June 8,
2015, the court granted Melton’s Motion to Reconsider and set the matter for a
hearing. On June 25, 2015, the court held a hearing, and on July 16, 2015, it
entered a summary order granting the Appellees’ 12(C) Motion and dismissing
her Section 1983 claim.
Discussion
[9] The dispositive issue is whether the court erred in dismissing Melton’s
complaint filed under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We
review de novo a trial court’s ruling on a Rule 12(C) motion for judgment on the
pleadings. Consol. Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192, 1196
(Ind. Ct. App. 2013) (citing Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731
3
The May 12, 2015 Order consisted of what appears to be a proposed order granting Melton’s request for a
hearing in which the court crossed out the word “GRANTING” in the title and wrote by hand: “Denied –
case was dismissed 2/2015.” Appellant’s Appendix at 170.
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(Ind. 2010)), trans. denied. We accept as true the well-pleaded material facts
alleged in the complaint, and base our ruling solely on the pleadings. Id. A
Rule 12(C) motion for judgment on the pleadings is to be granted “only where
it is clear from the face of the complaint that under no circumstances could
relief be granted.” Id. (quoting Murray, 925 N.E.2d at 731 (quoting Forte v.
Connerwood Healthcare, Inc., 745 N.E.2d 796, 801 (Ind. 2001) (quoting Culver-
Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind. 1994)))).
[10] When reviewing a Rule 12(C) motion, we may look only at the pleadings and
any facts of which we may take judicial notice, with all well-pleaded material
facts alleged in the complaint taken as admitted. Id. “The ‘pleadings’ consist of
a complaint and an answer, a reply to any counterclaim, an answer to a cross-
claim, a third-party complaint, and an answer to a third-party complaint.” Id.
“Pleadings” also consist of any written instruments attached to a pleading,
pursuant to Ind. Trial Rule 9.2. Id.; see also Ind. Trial Rule 10(C) (“A copy of
any written instrument which is an exhibit to a pleading is a part thereof for all
purposes.”).
[11] Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
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42 U.S.C. § 1983.
[12] Section 1983 creates no substantive right of its own, but acts only as a vehicle to
afford litigants a civil remedy for deprivation of their federal rights. Myers v.
Coats, 966 N.E.2d 652, 657 (Ind. Ct. App. 2012) (citing Albright v. Oliver, 510
U.S. 266, 271, 114 S. Ct. 807 (1994), reh’g denied). To prevail on a Section 1983
claim, “the plaintiff must show that (1) the defendant deprived the plaintiff of a
right secured by the Constitution and laws of the United States, and (2) the
defendant acted under the color of state law.” Id. (citing J.H. ex rel Higgin v.
Johnson, 346 F.3d 788, 791 (7th Cir. 2003), reh’g and reh’g en banc denied, cert.
denied, 541 U.S. 975, 124 S. Ct. 1891 (2004)).
[13] The Fourteenth Amendment of the United States Constitution prohibits any
state from depriving a person of life, liberty, or property without due process of
law. Also, Article 1, Section 12 of the Indiana Constitution states that “[a]ll
courts shall be open; and every person, for injury done to him in his person,
property, or reputation, shall have remedy by due course of law. Justice shall
be administered freely, and without purchase; completely, and without denial;
speedily, and without delay.” Indiana courts have consistently construed
Article 1, Section 12, also known as the due course of law provision, as
analogous to the federal due process clause. See, e.g., Doe v. O’Connor, 790
N.E.2d 985, 988 (Ind. 2003); see also McIntosh v. Melroe Co., 729 N.E.2d 972, 976
(Ind. 2000).
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[14] “A due process claim requires the consideration of two factors: first, there must
be the deprivation of a constitutionally protected property or liberty interest;
and second, a determination of what procedural safeguards are then required.”
Ross v. Ind. State Bd. of Nursing, 790 N.E.2d 110, 120 (Ind. Ct. App. 2003); see
also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493
(1985)) (“Once it is determined that the Due Process Clause applies, ‘the
question remains what process is due.’”). “The United States Supreme Court
has defined constitutionally protected ‘property’ in this context as ‘a legitimate
claim of entitlement.’” Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind. Ct.
App. 2006) (quoting Austin v. Vanderburgh Cnty. Sheriff Merit Comm’n, 761
N.E.2d 875, 879 (Ind. Ct. App. 2002)). “The source of such entitlements is not
to be found in the Constitution, but generally arises from a statute, ordinance,
or contract.” Id. “When protected property interests are implicated, the right to
some kind of prior hearing is paramount.” Charnas v. Estate of Loizos, 822
N.E.2d 181, 185 (Ind. Ct. App. 2005) (citing Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 569-570, 92 S. Ct. 2701, 2705 (1972)). “In determining
whether due process requirements apply, courts look not to the weight but to
the nature of the interest at stake.” Id. (citing Roth, 408 U.S. at 571, 92 S. Ct. at
2706). This court has recognized that a person has a property interest in a
license for employment issued to that person. See Ross, 790 N.E.2d at 120-121
(noting that “[w]hether one has a property interest in a license depends upon
whether an individual has a legitimate claim of right to it, which in turn is
dictated by the amount of discretion given to the licensing authority,” that
“there is not a great deal of discretion in the granting of a license,” and that
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“[a]ccordingly, Ross had a property interest in the nursing license issued to
him”). We must therefore determine whether the amount of process Melton
received is insufficient.
[15] Following the September 17, 2013 hearing at which her counsel appeared but
Melton did not personally appear, the Board entered a Notice of Proposed
Default. At the time of the September 17, 2013 and January 21, 2014 hearings,
the relevant statute governing default or dismissal under the AOPA provided:
(a) At any stage of a proceeding, if a party fails to:
(1) file a responsive pleading required by statute or rule;
(2) attend or participate in a prehearing conference,
hearing, or other stage of the proceeding; or
(3) take action on a matter for a period of sixty (60) days,
if the party is responsible for taking the action;
the administrative law judge may serve upon all parties written
notice of a proposed default or dismissal order, including a
statement of the grounds.
(b) Within seven (7) days after service of a proposed default or
dismissal order, the party against whom it was issued may file a
written motion requesting that the proposed default order not be
imposed and stating the grounds relied upon. During the time
within which a party may file a written motion under this
subsection, the administrative law judge may adjourn the
proceedings or conduct them without the participation of the
party against whom a proposed default order was issued, having
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due regard for the interest of justice and the orderly and prompt
conduct of the proceedings.
(c) If the party has failed to file a written motion under
subsection (b), the administrative law judge shall issue the default
or dismissal order. If the party has filed a written motion under
subsection (b), the administrative law judge may either enter the
order or refuse to enter the order.
(d) After issuing a default order, the administrative law judge
shall conduct any further proceedings necessary to complete the
proceeding without the participation of the party in default and
shall determine all issues in the adjudication, including those
affecting the defaulting party. The administrative law judge may
conduct proceedings in accordance with section 23 of this
chapter to resolve any issue of fact.
Ind. Code § 4-21.5-3-24 (West 2013) (subsequently amended by Pub. L. No. 72-
2014, § 5 (eff. July 1, 2014)).4
[16] Melton argues that in general a plaintiff can state a claim for deprivation of
procedural due process “by ‘show[ing] that state procedures as written do not
supply basic due process or that state officials acted in an [sic] “random and
unauthorized” fashion in depriving the plaintiff of his protected interest.’”
Appellant’s Brief at 20 (quoting Strasburger v. Bd. of Educ., 143 F.3d 351, 358
(7th Cir. 1998), reh’g and suggestion for reh’g en banc denied, cert. denied, 525 U.S.
4
Subsection (a)(2) of this statute, regarding a party’s failure to attend or participate in a prehearing
conference, hearing, or other stage of the proceeding, is found at subsection (a)(3) in the current version of
the statute, after a new subsection (a)(1) was added to the statute effective July 1, 2014.
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1069, 119 S. Ct. 800 (1999)). She maintains she was wrongly held in default in
that her counsel attended the September 17, 2013 hearing, which is sufficient in
any other forum. She argues that it is not clear that only her counsel’s
attendance at the September 17, 2013 hearing violated Ind. Code § 4-21.5-3-
24(a)(2),5 especially where she was not contesting the factual allegations and
was concerned only with the sanction, and that this error is compounded where
Ind. Code § 4-21.5-5-4(b)(2) precludes her from seeking judicial review of the
entry of default.
[17] The Appellees argue that Melton received proper notice about the September
17, 2013 hearing, she simply decided not to attend, the Board issued its Notice
of Proposed Default Order on September 20, 2013, which complied with and
satisfied Ind. Code § 4-21.5-3-24(a), and that she has not alleged facts regarding
this failure to appear that would entitle her to relief under Section 1983. They
argue that to the extent Melton filed a motion responding to and opposing the
Notice of Proposed Default, the Board was not persuaded by her arguments
and entered the default. They assert that the dictate of Ind. Code § 4-21.5-3-24
that a board proceed without the participation of the party in default “makes
sense” because it “ensures the prompt and efficient resolution of disputes,”
noting that the statute also permits a party to explain a failure to appear and,
here, the Board was unpersuaded by Melton’s reasons. Appellees’ Brief at 23.
5
Both briefs cite to the current version of the statute and particularly subparagraph Ind. Code § 4-21.5-3-
24(a)(3), which is identical to Ind. Code § 4-21.5-3-24(a)(2) (West 2013) recited above. As we observed, the
2013 version of Ind. Code § 4-21.5-3-24 applied to the relevant time period in question.
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They maintain that Melton has not explained how she could litigate the issue of
sanctions without personally appearing before the Board and that the
September 17, 2013 hearing “was her opportunity to provide her side of the
story and present evidence of any mitigating circumstances.” Id. at 21.
Melton’s response to this argument in her reply brief is that the Appellees do
not explicitly argue that Ind. Code § 4-21.5-3-24(a)(2) required her presence at
the hearing, and that she “could have (and did) oppose the ‘Board’s’ ‘sought’
punishment through her attorney,” noting again that she did not contest the
facts and that her attorney could have presented argument regarding other
similar cases regarding punishment. Appellant’s Reply Brief at 10.
[18] To the extent this question requires us to interpret Ind. Code § 4-21.5-3-24, we
note that we review an issue of statutory interpretation de novo. Chrysler Grp.,
LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind.
2012). “Clear and unambiguous statutes leave no room for judicial
construction.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009). But when
a statute is susceptible to more than one interpretation it is deemed ambiguous
and thus open to judicial construction. Id. If the statutory language is clear and
unambiguous, we require only that the words and phrases it contains are given
their plain, ordinary, and usual meanings to determine and implement the
legislature’s intent. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind.
2008), reh’g denied. If a statute is susceptible to multiple interpretations, we
must try to ascertain the legislature’s intent and interpret the statute so as to
effectuate that intent. Fight Against Brownsburg Annexation v. Town of Brownsburg,
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32 N.E.3d 798, 806 (Ind. Ct. App. 2015). We presume the legislature intended
logical application of the language used in the statute, so as to avoid unjust or
absurd results. Hauck v. City of Indianapolis, 17 N.E.3d 1007, 1015 (Ind. Ct.
App. 2014), trans. denied. A statute should be examined as a whole, avoiding
excessive reliance upon a strict literal meaning or the selective reading of
individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind. 2008).
[19] We find that the Board’s decision to find Melton in default at the September 17,
2013 hearing was error. Although Ind. Code § 4-21.5-3-24(a) of that statute
states that “[a]t any stage of a proceeding, if a party fails to” do certain things
including attend a hearing, reviewing similar language in subsections (b) and (c)
demonstrates that the statute’s reference to “party” includes counsel. Ind. Code
§ 4-21.5-3-24(a) (emphasis added). Indeed, subsection (b) provides that
“[w]ithin seven (7) days after service of a proposed default or dismissal order,
the party against whom it was issued may file a written motion requesting that the
proposed default order not be imposed,” and subsection (c) provides that “[i]f
the party has failed to file a written motion under subsection (b), the
administrative law judge shall issue the default or dismissal order” and “[i]f the
party has filed a written motion under subsection (b), the administrative law
judge may either enter the order or refuse to enter the order.” Ind. Code § 4-
21.5-3-24(b), -24(c) (emphases added). Thus, construing the term “party” as
contemplating only the petitioner is erroneous because, under such
interpretation, it follows that in order for a party to comply with subsection (b)
a party must personally file the motion opposing default, rather than counsel,
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which we do not believe was the legislature’s intent. Indeed, we observe that an
appearance by counsel at an administrative hearing has been sufficient under
Indiana law for decades. See Foltz v. City of Indianapolis, 234 Ind. 656, 685, 130
N.E.2d 650, 664 (Ind. 1955) (“If a party has been duly notified of a meeting for
a hearing, and he fails to appear personally or by counsel, he waives any right to
complain of the action taken, so long as it is within the authority of the
administrative body holding the meeting.”) (emphasis added).
[20] Also, Ind. Code § 4-21.5-3-24(a)(2) is not limited to participation in a hearing –
a written notice of proposed default may also be served upon a “party” who
does not participate in a prehearing conference. However, it is common for
prehearing conferences under the AOPA to be conducted by counsel. See, e.g.,
Galvan v. Alliance Ems/Transport Loving Care, Inc., Respondent, 2015 WL
10381762, at *2 (Ind. Civ. Rts. Com. August 28, 2015) (noting in its findings of
fact that “[t]he ALJ advised the parties in the Notice of Initial Pre-Hearing
Conference, “CORPORATIONS [] must be represented by counsel pursuant to
Indiana law . . . . A party who fails to attend or participate in a Pre-Hearing
Conference, Hearing, or other later stage of the proceeding may be held in
default or the matter may be dismissed”) (italics added); In the Matter of the
Petition of the Town of Huntertown, Ind., 2014 WL 4748688, at *1 (Ind. U.R.C.
September 14, 2014) (“Counsel for Huntertown, Fort Wayne, the Indiana
Office of Utility Consumer Counselor (‘OUCC’), Twin Eagles and the Allen
County Regional Water and Sewer District (‘District’) appeared and
participated at the Prehearing Conference.”); In the Matter of: Comm’r, Ind. Dep’t
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of Env. Mgmt, Case No. 2010-19215-S v. Nicola Haddad, d/b/a Marathon Gas
Station, Hobart, Lake Cnty., Ind., 2013 WL 9576700, at *2 (Ind. Off. Env. Adjud.
November 14, 2013) (“Respondent Haddad’s legal counsel appeared at the
September 19, 2011 Prehearing Conference, and represented that the Station
had new ownership, but requested additional time to submit leak detection
information to IDEM.”); In the Matter of: Arvina Joyce Carlson d/b/a State
Bonding d/b/a State Bonding Cal., 2010 WL 3466023, at *1 (Ind. Div. Sec.
August 18, 2010) (noting that both parties at telephonic prehearing conference
were represented by counsel). Indeed, the Board in a past decision has
contemplated that appearance by counsel was sufficient. See In the Matter of
Kent Robert Lindsay, 2005 ATB 0001, at 1 (Ind. A.T.B. November 15, 2006)
(“Respondent failed to appear in person or by counsel.”).
[21] We find that the Board erred in entering its Notice of Proposed Default. 6 The
question we must address is whether such entry denied Melton her due process
rights. Due process is not a technical conception with a fixed content unrelated
to time, place and circumstances. Wilson v. Bd. of Ind. Emp’t Sec. Div., 270 Ind.
302, 309, 385 N.E.2d 438, 444 (1979) (citing Cafeteria Workers v. McElroy, 367
U.S. 886, 895, 81 S. Ct. 1743, 1748 (1961), reh’g denied), cert. denied, 444 U.S.
874, 100 S. Ct. 155 (1979). Rather, due process is a flexible concept which calls
6
Regarding the Appellees’ argument that Melton has not explained how she could litigate the issue of
sanctions without personally appearing before the Board, we observe that, to the extent Melton’s testimony
may have been required in order to address a particular argument regarding sanctions raised by Melton’s
counsel at the hearing, the Board could have found that particular argument was waived due to her decision
not to appear.
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for such procedural protections as the particular situation demands. Id. (citing
Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976)). The
requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty
and property. McKinney v. McKinney, 820 N.E.2d 682, 687 (Ind. Ct. App. 2005)
(citing Roth, 408 U.S. at 569, 92 S. Ct. at 2705).
[22] “Generally stated, due process requires notice, an opportunity to be heard, and
an opportunity to confront witnesses.” Morton v. Ivacic, 898 N.E.2d 1196, 1199
(Ind. 2008) (quoting Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842
N.E.2d 885, 889 (Ind. Ct. App. 2006)). “The ‘opportunity to be heard’ is a
fundamental requirement of due process.” Id. (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)); see also Mathews,
424 U.S. at 333, 96 S. Ct. at 902 (“The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a meaningful
manner.”) (internal quotations omitted). In order to determine the specific
dictates of due process in a given situation, it is necessary to balance three
distinct factors: (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. Mitchell v. State, 659 N.E.2d
112, 114 (Ind. 1995) (citing Wilson, 270 Ind. at 309, 385 N.E.2d at 444 (quoting
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Matthews, 424 U.S. at 335, 96 S. Ct. at 903)). As we review and balance these
three interests first enunciated in Mathews v. Eldridge, we recognize that,
“although due process is not dependent on the underlying facts of the particular
case, it is nevertheless ‘flexible and calls for such procedural protections as the
particular situation demands.’” Lawson v. Marion Cnty. Office of Family &
Children, 835 N.E.2d 577, 580 (Ind. Ct. App. 2005) (quoting Thompson v. Clark
Cnty. Div. of Family & Children, 791 N.E.2d 792, 795 (Ind. Ct. App. 2003), trans.
denied).
[23] The failure to properly follow statutory requirements can lead to a violation of a
person’s procedural due process rights. See A.P. v. Porter Cnty. Office of Family
and Children, 734 N.E.2d 1107, 1117 (Ind. Ct. App. 2000) (holding that the
failure of the Porter County Office of Family and Children to comply with
statutes relating to Child in Need of Services and termination proceedings
deprived the parents of their due process rights), reh’g denied, trans. denied. In
this case, the private interest affected by the official action, Melton’s athletic
trainer’s license, is of paramount importance to Melton because it is required
for her to pursue the work she had invested years preparing to perform.
Conversely, there is no apparent governmental interest that would justify a
disregard of procedures set forth by the legislature; rather, those procedures
must be followed, especially when such an important private interest is at stake.
Finally, the risk of an erroneous deprivation of Melton’s interest in her athletic
trainer’s license through the Board’s decision to enter the Order of Proposed
Default is great because she was not entitled to any further process following the
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entry. Also, under Ind. Code § 4-21.5-5-4(b)(2) a person who is in default under
the AOPA has waived their right to seek judicial review.
[24] The Board’s entry of the Notice of Proposed Default following the September
17, 2013 hearing, in which Melton’s counsel appeared, deprived Melton of her
opportunity to be heard “at a meaningful time and in a meaningful manner,”
which is the fundamental requirement of due process. Mathews, 424 U.S. at
333, 96 S. Ct. at 902. Under the circumstances, we must reverse the court’s
grant of the Appellees’ 12(C) Motion dismissing Melton’s Section 1983 claim,
remand with instructions to vacate the Board’s Order, and order the Board to
provide Melton with an administrative hearing concerning the complaint filed
against her Indiana athletic training license which comports with the dictates of
due process.
Conclusion
[25] For the foregoing reasons, we reverse the court’s grant of the Appellees’ 12(C)
Motion dismissing Melton’s Section 1983 claim and remand with instructions
consistent with this opinion.
[26] Reversed and remanded.
Kirsch, J., and Mathias, J., concur.
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