Indiana Behavioral Health and Human Services Licensing Board v. Jenna Thomas (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 10 2018, 5:32 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Brian A. Karle
Attorney General of Indiana Jason Ramsland
Lafayette, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Indiana Behavioral Health and August 10, 2018
Human Services Licensing Court of Appeals Case No.
Board, 79A02-1712-PL-2904
Appellant-Respondent, Appeal from the Tippecanoe
Circuit Court
v. The Honorable Sean M. Persin,
Judge
Jenna Thomas, The Honorable Thomas H. Busch,
Appellee-Petitioner Senior Judge
Trial Court Cause No.
79C01-1704-PL-42

Altice, Judge.

Case Summary

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[1] Following an administrative hearing, the Indiana Behavioral Health and

Human Services Licensing Board (the Board) issued an order imposing

disciplinary sanctions on Jenna Thomas. Thomas sought judicial review. The

trial court found in Thomas’s favor and concluded that the Board’s order was

void because the Board failed to issue it within ninety days of the administrative

hearing, pursuant to Ind. Code § 4-21.5-3-27(g). On appeal, the Board argues

that it did not lose jurisdiction to issue an order after the statutory ninety-day

timeframe passed.

[2] We reverse.

Facts & Procedural History

[3] Thomas is a licensed clinical social worker in Indiana. On June 9, 2016, the

State filed an administrative complaint against her for professional misconduct.

The Board, acting as both the ultimate authority and an administrative law

judge (ALJ) for the agency, conducted an administrative hearing on October

24, 2016. Thomas filed a motion to dismiss on February 24, 2017, arguing that

“the Board ha[d] failed to comply with the requirements of AOPA in issuing an

order within ninety (90) days following the hearing”. Appellee’s Appendix Vol. 2

at 3. On March 30, 2017, the Board issued its disciplinary order against

Thomas, along with findings of fact. The Board placed Thomas’s license on

indefinite probation and imposed several terms and conditions. The Board also

issued an order denying the motion to dismiss.

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[4] On April 4, 2017, Thomas filed a petition for judicial review in which she did

not challenge the facts underlying the disciplinary order or the sanctions

imposed. Rather, Thomas argued that the order was untimely and therefore

invalid. The trial court heard oral argument on October 31, 2017, and then

issued an order granting the petition for judicial review on November 16, 2017.

Ultimately, the court determined that when the Board failed to issue its order

within ninety days, the Board lost jurisdiction of the case and its untimely

subsequent order was void. The Board now appeals.

Discussion & Decision

[5] I.C. § 4-21.5-3-27(g) provides:

An order under this section shall be issued in writing within
ninety (90) days after conclusion of the hearing or after
submission of proposed findings in accordance with subsection
(f), unless this period is waived or extended with the written
consent of all parties or for good cause shown.

The Board concedes that it failed to issue the order within ninety days of the

hearing but argues that this failure did not affect its jurisdiction or act to

invalidate the subsequent order. Thomas, on the other hand, argues that the

order is void because it was issued outside of ninety days.

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[6] Our court has addressed this issue before with respect to a related AOPA

statute. In Roman Marblene Co. v. Baker, 88 N.E.3d 1090, 1098 (Ind. Ct. App.

2017), trans. denied, we dealt with I.C. § 4-21.5-3-29(f),1 which provides:

A final order disposing of a proceeding or an order remanding an
order to an administrative law judge for further proceedings shall
be issued within sixty (60) days after the latter of:

(1) the date that the order was issued under section 27 of
this chapter;

(2) the receipt of briefs; or

(3) the close of oral argument;

unless the period is waived or extended with the written consent
of all parties or for good cause shown.

Relying on State v. Langen, 708 N.E.2d 617 (Ind. Ct. App. 1999), we held that

despite the use of the word “shall” in the statute, the sixty-day time period was

directory rather than mandatory. Roman Marblene, 88 N.E.3d at 1098. We

observed that “the legislature did not intend the prescribed time period to be

essential to the validity of the ultimate authority’s final order.” Id. We quoted

the following language from Langen with approval:

Our review of subsection (f) leads us to believe that the legislature
did not intend the prescribed time period to be essential to the
validity of the Commission’s final order. As is evident from the

1
I.C. § 4-21.5-3-29 applies in situations where the ALJ and the ultimate authority are not one in the same. In
that instance, the ultimate authority reviews the order that was issued by the ALJ under section 27 and then
issues a final order. When the ALJ is the ultimate authority, as in the case at hand, the final order is issued
by the ALJ pursuant to section 27. Both sections provide time periods in which the orders “shall” be issued.

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 statute, no consequences attach in the event of an untimely order
and under no circumstances has the legislature deprived the
Commission of its ultimate authority to issue its final order. The
statute neither purports to restrain the Commission from issuing
a final order outside of the prescribed time period nor specifies
that “adverse or invalidating consequences follow.” Moreover,
the purpose and intent of the sixty day time period is to promote
the prompt and expeditious resolution of the administrative
matters by the ultimate authority. The time period is not
intended as a jurisdictional prerequisite to a valid final order.
Accordingly, a mandatory construction of subsection (f) would
thwart the intention of the legislature.

Roman Marblene, 88 N.E.3d at 1098 (quoting Langen, 708 N.E.2d at 622

(citations omitted)). We then held, “although we understand Roman

Marblene’s frustration with the length of time it took for the ICRC to issue its

final order, the order issued is not void.” Id.

[7] In light of Roman Marblene and Langen, we conclude that the statutory period set

forth in I.C. § 4-21.5-3-27(g) is directory rather than mandatory and, therefore,

the Board’s belated order is not void. See Roman Marblene, 88 N.E.3d at 1098;

Langen, 708 N.E.2d at 621-22. Accordingly, the trial court erred when it

vacated the Board’s final order.

[8] Judgment reversed.

Najam, J. and Robb, J., concur.

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