FOR PUBLICATION Aug 23 2013, 5:32 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE,
State of Indiana:
MATTHEW S. TARKINGTON
Lewis & Kappes, P.C. GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES,
The Trustees of Purdue University and
Charles A. Hibberd:
BARRY L. LOFTUS
JORDAN J. SZYMIALIS
Stuart & Branigin, LLP
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JORDAN PARKER, a minor, individually, and by )
JAMES PARKER and CHERYL PARKER, as )
Natural parents and next friends of Jordan Parker, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1212-PL-1003
)
INDIANA STATE FAIR BOARD, an agency of )
The State of Indiana, )
)
Appellee-Respondent, )
)
THE TRUSTEES OF PURDUE UNIVERSITY )
and DR. CHARLES A. HIBBERD, )
)
Appellees/Intervenors. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49D07-1205-PL-19708
August 23, 2013
OPINION – FOR PUBLICATION
BARNES, Judge
Case Summary
Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as
his parents and next friends (collectively, “the Parkers”) appeal the trial court’s denial of
their petition for judicial review of a decision by the Indiana State Fair Board (the
“Board”). We affirm in part, reverse in part, and remand.
Issues
The Parkers raise several issues. We reorganize and restate the dispositive issues
as:1
I. whether application of the Indiana State Fair’s
Handbook violated the Administrative Orders and
Procedures Act (“AOPA”);
II. whether the administrative proceedings were improper
due to ex parte communications; and
1
The Parkers also argued that they were denied their equal protection rights and that the prohibition
against excessive and unconstitutional penalties was violated.
2
III. whether the Parkers were denied their due process
rights.
Facts
In August 2011, fifteen-year-old Jordan entered a lamb at the Indiana State Fair.
Jordan and his mother, Cheryl, signed the “Sheep Enrollment Form.” Appellants’ App.
p. 275. By doing so, Jordan agreed “to follow the rules, policies and expectations of the
4-H program” and to “conduct [himself] in a courteous and respectful manner by
exhibiting good sportsmanship and good behavior.” Id. Jordan agreed that “failing to do
so will result in sanctions, discipline, and/or dismissal from the program.” Id. By
signing the form, Cheryl also agreed to “abide by, follow, and comply with the rules,
policies and expectations of the 4-H program” and to “conduct [herself] in a courteous
and respectful manner by exhibiting good sportsmanship and being a positive role model
for youth.” Id. Cheryl agreed that “failing to do so will constitute grounds for sanctions
and/or dismissal of the member from the program.” Id.
Jordan and Cheryl also signed the “4-H Animal Affidavit,” which provided: “My
submission of a 4-H entry expressly binds me to all terms and conditions contained in
any and all parts of the Indiana State Fair 4-H/FFA Handbook/Premium List, to include,
but not limited to, consent to drug, steroid, tissue tests, examination of my animal’s
carcass . . . as a condition of entering the Indiana State Fair.” Id. at 277. The Indiana
State Fair 4-H/FFA Handbook/Premium List (“Handbook”) contained General Terms and
Conditions that prohibited the animals from having drugs, steroids, or chemicals at
greater than federally established standards. The Handbook also provided: “The test
3
results from the testing laboratories are final and binding upon the exhibitor, the
exhibitor’s parents and/or legal guardian even if the exhibitor, or the parents and/or
guardians did not administer the drug or foreign substance to the exhibitor’s animal. . . .”
Id. at 172.
Jordan’s lamb won the Grand Champion Market Lamb and participated in the Sale
of Champions, where it sold for $23,300. The lamb was then transported to the Purdue
Meat Lab, where it was slaughtered and drug testing samples were taken. The drug
testing was performed at the Indiana Animal Disease and Diagnostic Laboratory. Two
urine samples tested negative for foreign substances. However, a retinal sample tested
positive for the presence of Zilpaterol, which is not FDA-approved for sheep. Zilpaterol
is a feed additive used in cattle to “enhance leanness and growth rates.” Id. at 157. The
second retinal sample was sent to the Texas Veterinary Medical Diagnostic Laboratory,
and the second retinal sample was also positive for Zilpaterol. Both samples were
completely exhausted through the testing.
On September 20, 2011, the Board notified Jordan of the positive Zilpaterol
testing and informed him of the following penalties: (1) a disqualification and forfeiture
of all entry and other fees and all premiums, trophies, and awards from the Sheep
Department, including sale proceeds from the Sale of Champions; (2) a two-year ban
from the Sheep Department; (3) a permanent ban from participation in any 4-H sale at the
Indiana State Fair; and (4) a lifetime ban from all participation in the Indiana State Fair in
the event of further infractions. The Board informed the Parkers that they could appeal
this decision within fifteen days pursuant to the procedures set out in the Handbook.
4
On October 1, 2011, the Parkers appealed the September 2011 decision and
contended that they had never administered Zilpaterol to the lamb. Pursuant to the
Handbook, the Board scheduled an appeal hearing before three members of the Board
(“ALJ Panel”). On March 5, 2012, the Parkers filed a motion for summary judgment. In
their motion, the Parkers argued that the retinal testing results were inadmissible because
they were unable to perform independent testing of the retinal material. All of the retinal
material had been exhausted during the prior testing. The Parkers claimed due process
required that they have an opportunity to perform independent testing. Because there was
no other evidence of the Zilpaterol, the Parkers argued that, if the retinal testing was
inadmissible, they were entitled to have the Board’s decision revoked.
On March 23, 2012, the Board filed its response to the Parkers’ motion for
summary judgment and filed its own motion for summary judgment. The Board argued
that the Parkers were bound by their agreement that the test result were final and binding.
The Board also argued that the Parkers’ due process claim failed because: (1) Jordan did
not have a constitutionally protected property interest in participation in the State Fair or
the 4-H sale at the State Fair; (2) Jordan was given all of the due process required under
the circumstances; and (3) due process did not require that the Parkers have an
opportunity for independent testing.
The Parkers filed a combined reply to the Board’s motion for summary judgment
and in support of their own motion for summary judgment. The Parkers argued that: (1)
Jordan had a property right in the lamb, the sale proceeds, his reputation, and continued
participation in the State Fair; (2) Jordan was entitled to a “due process” hearing to
5
challenge the drug test results; (3) the denial of a “due process” hearing would violate the
equal protection clause; (4) Jordan did not knowingly, voluntarily, and intelligently waive
his constitutional rights by agreeing to the terms of the Handbook; (5) Jordan, a minor,
could not waive his constitutional rights; (6) the Board’s rules were not drafted pursuant
to Indiana Code Chapter 4-22-2; (7) the punishment was excessive under the Indiana
Constitution; and (8) the Board’s policy of the test results being final and binding was
unconstitutional on its face.
The Board then filed a response to the Parkers’ arguments. The Board again
argued that Jordan did not have a constitutionally protected property right and that he had
no constitutionally protected right to participate in the State Fair. The Board argued that
the Parkers’ equal protection argument failed because they had elected to proceed via
summary judgment rather than an evidentiary hearing. Finally, the Board argued that the
lack of independent testing did not require the exclusion of the testing results, the
Parkers’ waiver argument failed because comparisons to the juvenile waivers in the
criminal justice system were inappropriate, and the excessive punishment argument
failed. Finally, the Parkers filed a sur-reply addressing the same issues.
An oral argument was held before the ALJ panel regarding the motions for
summary judgment on April 12, 2012. The ALJ panel filed its “Recommended Findings
of Fact, Conclusions of Law and Final Order Granting [the Board’s] Motion for
Summary Judgment and Denying [the Parkers’] Motion for Summary Judgment.”
Appellants’ App. p. 41. The Recommended Order provided, in part:
6
1. The [Board] was created by Indiana Code § 15-13-15-
1. It is required to “hold an agricultural fair each year
emphasizing agriculture and agribusiness.” IC § 15-
13-7-1. The [Board] has duly enacted General Terms
and Conditions to implement the responsibilities
granted by the legislature.
2. The General Terms and Conditions are a valid exercise
of the authority granted [the Board] by the General
Assembly. Id.
3. When [the Board] received confirmation that [the
Parkers’] lamb tested positive for Zilpaterol, a
substance not approved by the U.S. Food and Drug
Administration, [the Board was] within their authority
under the General Terms and Conditions to assess the
penalties it did against [Jordan].
4. [Jordan’s] and his parent’s signatures on the
enrollment form and 4-H Animal Affidavit bound
them to the General Terms and Conditions, including
but not limited to the “final and binding” nature of the
results of the drug testing conducted on the Lamb even
if [Jordan], his parents, and/or guardians did not
administer Zilpaterol to the Lamb.
*****
9. The General Terms and Conditions give the [Board]
broad discretion to interpret its rules, administer a drug
testing program and assess appropriate penalties.
There are no “factual conditions” delineating
entitlements in the General Terms and Conditions that
give rise to procedural due process rights. [Fincher v.
South Bend Heritage Found., 606 F.3d 331, 334 (7th
Cir. 2010), cert. denied.]
10. No constitutionally protected property interest exists in
this Matter entitling [the Parkers] to procedural due
process. The only due process to which he is entitled
is the procedures outlined in the [Board’s] General
Terms and Conditions. See Turner v. City of Kokomo,
7
804 N.E.2d 272, 275 (Ind. Ct. App. 2004), reh’g
denied, trans. denied.
11. As a matter of law, [the Parkers] are not entitled to
summary judgment under Indiana Code § 4-21.5-3-23.
12. As a matter of law, [the Board] is entitled to summary
judgment under Indiana Code § 4-21.5-3-23.
Id. at 44-45. The ALJ Panel “affirmed and adopted” the September 2011 decision
regarding Jordan and his animal.
The Parkers filed their objections to the ALJ Panel’s decision, and the Board
responded to the objections. The full Board conducted a hearing on the Recommended
Order on May 10, 2012. At the beginning of the hearing, board member Dr. Charles
Hibberd, the director of the Cooperative Extension at Purdue University, recused himself.
The Board president noted that Dr. Hibberd would not participate or vote on the matter
but would be allowed to hear the arguments. After arguments by counsel, the Board
discussed the matter. At that time Dr. Hibberd made comments regarding the testing
procedures. The Parkers’ counsel objected to Dr. Hibberd giving testimony, but Dr.
Hibberd continued making comments. The Board voted to affirm the ALJ Panel’s
Recommended Order.
The Parkers filed a petition for judicial review on May 15, 2012. The Board filed
a brief in opposition to the petition for judicial review, and the Parkers filed a reply.
After a hearing before the trial court, the trial court entered findings of fact and
conclusions thereon denying the Parkers’ petition for judicial review. The trial court
found that: (1) the Board did not act in excess of its statutory authority in promulgating
8
the Handbook’s General Terms and Conditions; (2) by agreeing to be bound by the
General Terms and Conditions, the Parkers waived their right to challenge the test results;
(3) the Parkers did not have a constitutionally protected interest at stake; (4) even if they
had a constitutionally protected interest, the Board’s procedures comported with due
process; (5) the Parkers’ equal protection rights were not violated; and (6) the penalties
were not excessive. The Parkers now appeal.
Analysis
The parties do not dispute that the Administrative Orders and Procedures Act
(“AOPA”) governs this action. See Ind. Code Article 4-21.5. When we review the
decision of an administrative agency, we are bound by the same standard as the trial
court. Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 899 (Ind. Ct. App. 2012),
trans. denied. We do not try the case de novo and do not substitute our judgment for that
of the agency. Id. Pursuant to the AOPA, we will reverse the administrative decision
only if it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) contrary to a constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or (5) unsupported by substantial
evidence. I.C. § 4-21.5-5-14. Although an appellate court grants deference to an
administrative agency’s findings of fact, no such deference is accorded to its conclusions
of law. Musgrave, 964 N.E.2d at 899-900 (citing LTV Steel Co. v. Griffin, 730 N.E.2d
1251, 1257 (Ind. 2000)). The burden of demonstrating the invalidity of the agency action
is on the party who asserts the invalidity. Id. at 900.
9
The Board’s order at issue here was entered on cross motions for summary
judgment. “In an administrative proceeding, a party may, at any time after the matter has
been assigned to an administrative law judge, move for a summary judgment in the
party’s favor as to all or any part of the issues in the proceeding.” Id. (citing I.C. § 4-
21.5-3-23). “When a party files a summary judgment motion, the administrative law
judge considers the motion as a court would if considering a motion for summary
judgment filed under Trial Rule 56.” Id. Pursuant to Indiana Trial Rule 56(C), summary
judgment is appropriate when there are no genuine issues of material fact and when the
moving party is entitled to judgment as a matter of law. “ʻA genuine issue of material
fact exists where facts concerning an issue which would dispose of the litigation are in
dispute or where the undisputed facts are capable of supporting conflicting inferences on
such an issue.ʼ” Id. (quoting Mahan v. American Standard Ins. Co., 862 N.E.2d 669, 675
(Ind. Ct. App. 2007), trans. denied). The party moving for summary judgment bears the
burden of making a prima facie showing that there is no genuine issue of material fact
and that he or she is entitled to a judgment as a matter of law. Id. Once the moving party
meets these two requirements, the burden shifts to the non-moving party to show the
existence of a genuine issue of material fact by setting forth specifically designated facts.
Id. The fact that the parties made cross-motions for summary judgment does not alter our
standard of review. Id. Instead, we consider each motion separately to determine
whether the moving party is entitled to judgment as a matter of law. Id.
I. Applicability of the Handbook and Its General Terms and Conditions
10
We first address the Parkers’ argument that the Handbook’s General Terms and
Conditions, which include the statement that the drug testing results are final and binding,
were void because the Board did not follow the AOPA rule-making procedures in
creating the General Terms and Conditions. According to the Parkers, the Board acted in
excess of its statutory jurisdiction and authority.
The Parkers did not raise this argument in their motion for summary judgment. In
their response to the Board’s motion for summary judgment, the Parkers briefly
mentioned the “rulemaking provision” of the AOPA, but they never argued that the
General Terms and Conditions were void or that the Board acted in excess of its statutory
authority. Appellee’s App. p. 61. In their objections to the ALJ Panel’s Recommended
Order, the Parkers again mentioned that the General Terms and Conditions were not
adopted in accordance with the AOPA, but they did not argue that the General Terms and
Conditions were void. See id. at 160-61. The Parkers first argued that the General Terms
and Conditions were void in their brief in support of their petition for judicial review.
See Appellants’ App. pp. 89-92. “A party may only obtain judicial review of an issue
that was raised before the administrative agency and preserved for review[.]”2 Dev.
Servs. Alternatives, Inc. v. Indiana Family & Soc. Servs. Admin., 915 N.E.2d 169, 178
(Ind. Ct. App. 2009), trans. denied; see also I.C. § 4-21.5-5-10 (limiting judicial review of
issues not raised before the agency). We conclude that the Parkers waived this issue by
2
A person may obtain judicial review of an issue not raised before the agency if: (1) “the issue concerns
whether a person who was required to be notified by this article of the commencement of a proceeding
was notified in substantial compliance with this article” or (2) “the interests of justice would be served by
judicial resolution of an issue arising from a change in controlling law occurring after the agency action.”
I.C. § 4-21.5-5-10. Neither of these exceptions is applicable here.
11
failing to raise it before the Board. Consequently, for purposes of this appeal, we apply
the General Terms and Conditions.
II. Ex Parte Communications
The Parkers argue that the administrative proceedings were improper because of
communications between Dr. Hibberd and the Board during the Board’s deliberations.
At the beginning of the hearing before the full Board, Dr. Hibberd recused himself. The
Board president noted that Dr. Hibberd would not participate or vote on the matter but
would be allowed to hear the arguments. After arguments by counsel, the Board
discussed the matter. At that time Dr. Hibberd made comments regarding the testing
procedures. The Parkers’ counsel objected to Dr. Hibberd giving testimony, but Dr.
Hibberd continued with his comments.
The Parkers first argue that Dr. Hibberd’s comments were improper ex parte
communications. The reliance on ex parte communications is not allowed in
administrative hearings of an adjudicatory nature. Worman Enterprises, Inc. v. Boone
Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 375 (Ind. 2004). “Black’s Law
Dictionary defines ex parte communications as ‘a generally prohibited communication
between counsel and the court when opposing counsel is not present.’” Id. at 374-75
(quoting BLACK’S LAW DICTIONARY 597 (7th ed. 1999)). “[E]x parte communications
most often become an issue if a judge communicates outside the courtroom without
disclosing those communications to everyone involved.” Id. at 375. The communications
at issue here were made during the Board’s deliberations and in front of the parties and
their counsel. Thus, the communications were not ex parte.
12
The Parkers also argue that the communications violated Indiana Code Section 4-
21.5-3-13(a), which provides: “An individual who has served as investigator, prosecutor,
or advocate in a proceeding or in its preadjudicative stage may not serve as an
administrative law judge or assist or advise the administrative law judge in the same
proceeding.” The Board concedes that Dr. Hibberd “certainly should have been advised
not to make any comments to the State Fair Board . . . .” Board’s Br. p. 24. However,
the Board argues that Indiana Code Section 4-21.5-3-13(a) is inapplicable because Dr.
Hibberd was not advising the administrative law judge; rather, he was advising the full
Board.
We need not determine whether Indiana Code Section 4-21.5-3-13(a) is applicable
here because we conclude that any error in Dr. Hibberd’s comments was harmless.
“[T]he harmless error doctrine applies to the judicial review of administrative hearings.”
Indiana State Bd. of Embalmers & Funeral Directors v. Kaufman, 463 N.E.2d 513, 520
(Ind. Ct. App. 1984). “An appellant has the burden of showing reversible error.” Id.
During the Board’s deliberations, Dr. Hibberd discussed that Purdue had performed a
retinal test on Jordan’s animal that was positive for Zilpaterol and an independent test
was performed on the other retina in Texas. Dr. Hibberd noted that they had followed the
drug testing policy, that they tested the champion and reserve champion animals and did
random testing in the barn, and that the only positive test results were in winning animals.
Dr. Hibberd also noted that the amount of retinal material available was limited, so they
sent the remainder to an outside lab for verification.
13
The drug testing policy and procedures in general and specific to Jordan’s animal
had already been extensively briefed in the summary judgment proceedings. Thus, the
Board already had evidence regarding the drug tests. The Parkers have not demonstrated
how they were harmed by Dr. Hibberd’s comments. Although Dr. Hibberd’s comments
were improper because he had recused himself from the Board’s deliberations and the
Board was incorrect in allowing him to speak, we conclude that the error was harmless.
III. Due Process Rights
The crux of the Parkers’ argument is that Jordan was denied his due process rights.
The Due Process Clause of the Fourteenth Amendment declares that no State shall
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Due process contains both substantive and procedural elements.
Procedural due process requires a two-part inquiry: “ʻThe first inquiry in every
due process challenge is whether the plaintiff has been deprived of a protected interest in
property or liberty. Only after finding the deprivation of a protected interest do we look
to see if the State’s procedures comport with due process.’” Perdue v. Gargano, 964
N.E.2d 825, 832 (Ind. 2012) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
59, 119 S. Ct. 977, 989 (1999)). “[T]he fundamental requirement of procedural due
process is the opportunity to be heard at a meaningful time and in a meaningful manner.”
Id. When a deprivation is contemplated, “these principles require . . . an effective
opportunity to defend by confronting any adverse witnesses and by presenting his own
arguments and evidence orally.” Id. (footnote omitted). “When protected property
14
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).
“ʻSubstantive due process ensures that state action is not arbitrary or capricious
regardless of the procedures used.ʼ” Honeycutt v. Ong, 806 N.E.2d 52, 58 (Ind. Ct. App.
2004) (quoting N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000), trans.
denied). “To set forth a claim for violation of substantive due process, a party must show
(1) that the law infringes upon a fundamental right or liberties deeply rooted in our
nation’s history; or (2) that the law does not bear a substantial relation to permissible
state objectives.” Id. “To succeed, the party must demonstrate that the State’s conduct is
arbitrary and capricious.” Id. “The State will prevail if any rational basis for its action
can be hypothesized.” Id.
According to the Parkers, they had a constitutionally protected property right
under the Due Process Clause, the drug test results were inadmissible because the Parkers
were unable to perform independent testing, which they argue was required under the
Due Process Clause, they did not waive their due process rights by agreeing to the
General Terms and Conditions, the “final and binding” drug test provision is
unconstitutional as a “zero tolerance” policy, and they were improperly denied an
evidentiary hearing.
A. Waiver
Even if we assume, for purposes of this appeal, that the Parkers had a
constitutionally protected property right here, we conclude that they waived their alleged
constitutional rights. “It is without question that an individual may waive his or her
15
procedural due process rights.” Domka v. Portage Cnty., Wis., 523 F.3d 776, 781 (7th
Cir. 2008) (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185, 92 S. Ct. 775
(1972)). “A constitutional waiver is considered to be valid if it is knowing and
voluntary.” Id.
The Board concluded, in part:
[Jordan’s] and his parent’s signatures on the enrollment form
and 4-H Animal Affidavit bound them to the General Terms
and Conditions, including but not limited to the “final and
binding” nature of the results of the drug testing conducted on
the Lamb even if [Jordan], his parents, and/or guardians did
not administer Zilpaterol to the Lamb.
Appellants’ App. p. 44. The Parkers argue that they did not knowingly and voluntarily
agree to waive their right to challenge the results of the drug test. When they entered the
lamb at the State Fair, Jordan and Cheryl signed the “4-H Animal Affidavit,” which
provided: “My submission of a 4-H entry expressly binds me to all terms and conditions
contained in any and all parts of the Indiana State Fair 4-H/FFA Handbook/Premium List,
to include, but not limited to, consent to drug, steroid, tissue tests, examination of my
animal’s carcass . . . as a condition of entering the Indiana State Fair.” Id. at 277. The
Handbook’s General Terms and Conditions prohibited the animals from having drugs,
steroids, or chemicals at greater than federally established standards. The General Terms
and Conditions also provided: “The test results from the testing laboratories are final and
binding upon the exhibitor, the exhibitor’s parents and/or legal guardian even if the
exhibitor, or the parents and/or guardians did not administer the drug or foreign substance
to the exhibitor’s animal. . . .” Id. at 172.
16
The Parkers argue that they did not knowingly or voluntarily consent to the “final
and binding” nature of the drug test results because they did not separately sign the
Handbook or its General Terms and Conditions. However, Cheryl admitted that she
agreed to be bound by the terms of the 4-H Affidavit, that she consented to the drug
testing, and that she agreed to be bound by the Handbook. Id. at 399-400. Although he
did not sign the 4-H Affidavit, James was aware of the drug testing policy and had read
the Handbook’s General Terms and Conditions. Id. at 404-10. Further, Jordan agreed
that he had consented to the drug testing and the terms of the Handbook. Id. at 352-56.
We conclude that the Parkers knowingly and voluntarily agreed to be bound by the
Handbook and its General Terms and Conditions.
They also argue that the language of the General Terms and Conditions is
ambiguous. An agreement “is ambiguous only if reasonable people reading the contract
would differ as to the meaning of the terms.” Dreibelbiss Title Co., Inc. v. Fifth Third
Bank, 806 N.E.2d 345, 349 (Ind. Ct. App. 2004), trans. denied. Our review of the 4-H
Affidavit, Handbook, and General Terms and Conditions does not reveal any language
that would result in reasonable people reaching differing conclusions as to the meaning.
We conclude that the 4-H Affidavit, which Jordan and Cheryl signed, clearly and
unambiguously bound them to the terms of the Handbook. Further, we conclude that the
Handbook’s General Terms and Conditions clearly and unambiguously provided and
emphasized that the test results were final and binding.
17
Finally, the Parkers also argue that Jordan, a minor, could not waive his
constitutional due process rights under these circumstances. In support of their argument,
the Parkers cite Indiana Code Section 31-32-5-1, which provides:
Any rights guaranteed to a child under the Constitution of the
United States, the Constitution of the State of Indiana, or any
other law may be waived only:
(1) by counsel retained or appointed to represent the child if
the child knowingly and voluntarily joins with the waiver;
(2) by the child’s custodial parent, guardian, custodian, or
guardian ad litem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person
and the child; and
(D) the child knowingly and voluntarily joins with the waiver;
or
(3) by the child, without the presence of a custodial parent,
guardian, or guardian ad litem, if:
(A) the child knowingly and voluntarily consents to the
waiver; and
(B) the child has been emancipated under IC 31-34-20-6 or
IC 31-37-19-27, by virtue of having married, or in accordance
with the laws of another state or jurisdiction.
However, this statute pertains to juvenile delinquency proceedings, and the Parkers cite
no authority for the proposition that the statute applies to juvenile waivers in a civil
context. Moreover, Cheryl, as Jordan’s parent, also signed the 4-H Affidavit, which
18
referred to the General Terms and Conditions, and the Parkers make no argument that she
was unable to bind Jordan to the agreement and General Terms and Conditions.3
B. Zero Tolerance Policy
The Parkers argue that the “final and binding” provision regarding the drug test
results is an unconstitutional “zero tolerance policy.” Appellants’ Br. p. 24. However,
the only authority cited by the Parkers is a Texas Court of Appeals memorandum
opinion, Hinterlong v. Arlington Independent School Dist., No. 2-09-050-CV, 2010 WL
522641 (Tex. Ct. App. 2010). In Hinterlong, a student was found with a small amount of
alcohol in his vehicle on school property and was placed in an alternative school based on
the school’s zero tolerance policy. The court noted:
School districts’ zero tolerance policies, as a whole, have
promoted consistency over rationality. See generally
Christopher D. Pelliccioni, Note, Is Intent Required? Zero
Tolerance, Scienter, and the Substantive Due Process Rights
of Students, 53 Case W. Res. L.Rev. 977, 990-91 (2003).
Arguments can be made that appeals, processes, and
procedures provided to a student after application of a zero
tolerance policy are worthless because each appeal, process,
or procedure simply affirms zero tolerance; that is, such
procedural due process is meaningless because no one within
the process can circumvent the policy. Moreover, strict
adherence to zero tolerance policies without consideration of
the student’s mens rea would appear to run afoul of
substantive due process notions. See Seal v. Morgan, 229
F.3d 567, 578 (6th Cir. 2000) (stating that “the Board’s Zero
Tolerance Policy would surely be irrational if it subjects to
punishment students who did not knowingly or consciously
possess a weapon”).
3
Because the Parkers’ waived their due process claim related to the “final and binding” provision of the
Handbook, we need not address their inability to obtain an independent drug test or whether they had a
constitutionally protected property interest.
19
Hinterlong, No. 2-09-050-CV, 2010 WL 522641 *2. However, the court concluded that
the student had an opportunity for the school to consider his mens rea and avoid
application of the zero tolerance policy. Although the student had this opportunity, the
student presented no evidence to escape application of the zero tolerance policy, and his
“applied due process challenge” failed. Id.
The Parkers appear to be making both a substantive and procedural due process
argument here. However, as in Hinterlong, although the Handbook contains a provision
that the drug test results are “final and binding,” participants are given the opportunity to
submit evidence in their defense. Appellants’ App. p. 172. This is evident when A.M.’s
situation is considered.
A.M. was another 2011 State Fair participant and also had a positive drug test
result for his animal. A.M. was initially given the same sanctions as those received by
Jordan. During an evidentiary hearing before an ALJ panel, A.M. presented mitigating
evidence from a feed supplier that his “animal’s feed was accidentally contaminated with
residue from feed containing Zilpaterol.” Appellants’ App. p. 236. A.M. did not
challenge the results of the drug testing. The ALJ panel used its discretion to set aside
A.M.’s two-year ban from the Swine Department, his permanent ban from participation
in any 4-H sales at the State Fair, and his lifetime ban for further infractions. However,
A.M. was still “disqualified and forfeit[ed] all entry and other fees and all premiums,
trophies and awards from the Swine Department including sale proceeds from the Sale of
Champions or regular marketing channels for the 2011 Indiana State Fair.” Id. The
forfeiture of the sale proceeds is reasonably related to a legitimate state interest of
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preventing contaminated animals from entering the food supply. The Parkers have failed
to demonstrate that the “final and binding” policy results in a due process violation.
C. Evidentiary Hearing
The Parkers argue that Jordan was improperly denied his due process rights
because he did not receive an evidentiary hearing. Indiana Code Section 4-21.5-3-25(c)
provides: “To the extent necessary for full disclosure of all relevant facts and issues, the
administrative law judge shall afford to all parties the opportunity to respond, present
evidence and argument, conduct cross-examination, and submit rebuttal evidence, except
as restricted by a limitation under subsection (d) or by the prehearing order.” According
to the Parkers, Jordan was denied an opportunity to present a meaningful defense and to
test the validity of the charges by the failure to have an evidentiary hearing.
The Board points out that the Parkers moved for summary judgment and that the
Board responded with a cross motion for summary judgment. Indiana Code Section 4-
21.5-3-23 allows summary judgment in administrative proceedings. It provides in part:
(a) A party may, at any time after a matter is assigned to
an administrative law judge, move for a summary
judgment in the party’s favor as to all or any part of
the issues in a proceeding.
(b) Except as otherwise provided in this section, an
administrative law judge shall consider a motion filed
under subsection (a) as would a court that is
considering a motion for summary judgment filed
under Trial Rule 56 of the Indiana Rules of Trial
Procedure.
I.C. § 4-21.5-3-23.
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The Parkers’ motion for summary judgment only concerned the admissibility of
the drug test results. Although not labeled as such, the Parkers’ motion was clearly a
motion for partial summary judgment only. The Board’s cross motion for summary
judgment also concerned the admissibility of the drug test results, the Parkers’ agreement
to abide by the Handbook, and the “final and binding” nature of the drug test results. As
with the Parkers’ motion, although not labeled as such, the Board’s motion was a motion
for partial summary judgment. The Parkers’ response to the Board’s cross motion
argued, in part, that the penalties imposed were excessive under the Indiana Constitution.
Despite the limited issues presented in the briefs, the ALJ Panel treated the
Board’s motion as a motion for summary judgment on all the issues. The ALJ Panel
denied the Parkers’ motion for summary judgment, granted the Board’s motion for
summary judgment, and adopted the September 2011 decision, including the penalties.
The ALJ Panel’s recommended order did not address the Parkers’ argument regarding the
penalties. The full Board then adopted the ALJ Panel’s recommended order.
The Parkers compare their situation to that of A.M., who had an evidentiary
hearing and presented evidence that his animal’s feed was accidentally contaminated.
The ALJ panel used its discretion to reduce the penalty imposed on A.M. as a result of
the positive drug test. The Parkers were denied an opportunity to present such evidence.
Neither party moved for summary judgment regarding the penalties; rather, the focus of
the motions was the admissibility of the drug test results. In fact, in a reply brief during
the summary judgment proceedings, the Board noted that Jordan still has “the same
opportunity as A.M. to present evidence at a hearing before another ALJ panel” and that
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“once briefing is completed” Jordan still had the opportunity for a hearing at which he
could present evidence. Appellee’s App. pp. 91, 95. However, the ALJ Panel’s order
adopted the prior decision on the penalties against Jordan, and the full Board similarly
adopted the ALJ Panel’s decision. We conclude that the Board improperly granted full
summary judgment here.
We remand for the Board to conduct an evidentiary hearing regarding the penalties
imposed on Jordan. We note that, even in this appeal, the Parkers’ main focus remains
challenging the admissibility of the drug test results. However, we conclude that issue
was properly resolved in summary judgment proceedings. Consequently, on remand, the
Parkers may not challenge the admissibility of the drug test results or the policy that the
drug test results are “final and binding.” Because of our remand for an evidentiary
hearing regarding the penalty imposed by the ALJ Panel, we need not address the
Parkers’ equal protection and excessive penalty arguments.
Conclusion
The Parkers waived their argument that the Handbook’s General Terms and
Conditions are void. Further, they agreed to be bound by the Handbook, including its
requirement that the drug testing was “final and binding.” We also conclude that any
error in Dr. Hibberd’s comments during the Board’s deliberations was harmless error.
However, because the summary judgment motions addressed only the admissibility of the
drug test results, we conclude that Jordan was entitled to an evidentiary hearing regarding
the penalties imposed on him. We affirm in part, reverse in part, and remand for further
proceedings.
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Affirmed in part, reversed in part, and remanded.
NAJAM, J., and BAILEY, J., concur.
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