dissenting.
As one of my colleagues often wryly notes, “No good deed goes unpunished.”
After sixteen months, Roberts’s appeal to the Whitley Circuit Court, and Roberts’s appeal to this court, the Board is back to square one and must give Roberts the process that is purportedly “due” him. In my view, such a result makes a mockery of the justice system and cheapens the very due process tradition our courts seek to uphold.
The Merit Board would have been well within its discretion to proceed with the public hearing in Roberts’s absence on March 29, 2001. Employees subpoenaed from the probation department, two detectives who had investigated the case, and another witness were all present to testify at 8:30 a.m. that morning. Roberts’s attorney was also present and had even brought a witness and prepared exhibits for Roberts’s defense. Nevertheless, the Board graciously agreed to continue the hearing on the flimsiest of last-minute excuses: Roberts left a message on his attorney’s answering machine on the morning of the hearing claiming that he was ill.
The farce begins, innocently enough, with an attorney’s plea for a continuance in exchange for a conditional stipulation to a default judgment. The attorney will stipulate to the charges if his client’s proof of medical disability is deemed less than compelling at the continued hearing. The Board agreed that, to avoid the proposed default judgment, Roberts must “show very compelling proof that he was physically unable to come here because of medical disability.” Appellant’s App. p. 39. At the continued hearing thirteen days later, the Board had before it Roberts’s proof of disability: (1) a one-page form from a prompt-care clinic; (2) a section on migraines published in the Mayo Clinic Family Health book; and (3) Roberts’s self-serving testimony about his medical condition.
His evidence is not compelling. First, the prompt-care form noted that Roberts complained of nausea and headache, that he was diagnosed with a migraine, and that he had a medical history of migraine headaches. The prompt-care report showed, however, that Roberts decided to seek treatment two and a half days after the March 29 hearing and from someone other than his regular treating physician. Second, the Mayo book informed the Board that in general migraines can strike suddenly and can cause intense pain, nausea, and vomiting. But the Mayo book did not show that Roberts was experiencing intense pain, nausea, and vomiting on the morning of the hearing. Third, when asked why it took two and a half days to seek treatment, Roberts’s response drifted into utter incoherency:
[Roberts]: Quite frankly, I’ve been off work since October with headaches. And when I get them, they — sometimes they come on — come on very suddenly, sometimes they don’t. But in this particular case, I was not able to come to work, come on to the doctor until Saturday because—
[Board Member]: Or answer the phone on [the day of the hearing]?
[Roberts]: Exactly. I turn my ringers off because — if you’ve never had migraine headaches, you couldn’t understand, but they’re very severe, and they come on very sudden. As far as the opinion that [my attorney] was talking about, I did ask, and I won’t— him his — him his name, as a — unless they require that, but it did come on, *857and I asked the friend to take me home, and I went to bed, [the night before the hearing] 8:00 at night.
Appellant’s App. p. 60.
The majority asserts: “Upon these facts, no reasonable person could conclude other than that Roberts missed the March 29 hearing because he was suffering from a migraine headache.” Slip op. at 7. To the contrary, a reasonable person could conclude that Roberts skipped the hearing, invented an unverifiable medical disability to account for his absence, and offered this story to the Board to forestall his termination. In an attempt to explain the dearth of compelling proof, Roberts complains to this court that the. thirteen days between the March 29 hearing and the April 11 hearing were insufficient to prepare proof of his medical disability. He contends that the April 11 date did not allow him “to be heard, in a meaningful time and in a meaningful manner.” Appellant’s Br. p. 16. But Roberts never explains why the thirteen-day continuance lacks meaningfulness. He does not, for instance, show that more time would have allowed his attorney to talk to the prompt-care physician or Roberts’s regular physician and, as a result, present a stronger case before the Board.
As the majority notes, we review the decisions of a Merit Board for abuse of discretion or a showing that the Board acted in an arbitrary and capricious manner. Slip op. at 4 (citing Bird v. County of Allen, 639 N.E.2d 320, 327 (Ind.Ct.App.1994)). Had the Board denied Roberts’s attorney’s request for a continuance on the morning of the hearing, it would have done so without any abuse of discretion. Cf., e.g., Tapia v. State, 753 N.E.2d 581, 586-87 (Ind.2001) (finding no abuse of discretion in denying a post-conviction petitioner’s request for a continuance where petitioner failed to show what he would have gained by forestalling an evidentiary hearing); Troutman v. State, 730 N.E.2d 149, 153 (Ind.2000) (finding no abuse of discretion in denying motion for continuance for, among other reasons, State’s potential inability to coordinate schedules of witnesses and defendant’s failure to show prejudice); Maxey v. State, 730 N.E.2d 158, 161 (Ind.2000) (finding no abuse of discretion in denying motion for continuance where defense counsel had ample time to prepare for trial and there was no showing of prejudice). The record shows that a number of witnesses had appeared for the March 29 hearing and that Roberts’s attorney was prepared to go forward at the hearing. In fact, his attorney stressed that he “had spent a lot of time to be prepared for [the March 29 hearing].” Appellant’s App. p. 56. But for defense counsel’s plea for a continuance in exchange .for a stipulated default judgment, the Board would have proceeded with the March 29 hearing. Appellant’s App. p. 34-35. If such a procedure constitutes error, it was invited and may not be challenged on appeal. See Joyner v. State, 736 N.E.2d 232, 237 (Ind.2000) (“A defendant may not invite error and then complain on review.”).
Today’s result isn’t the process due Roberts under our once venerable, and now deservedly maligned, Anglo American tradition of protecting citizens from arbitrary and capricious government. If it is, then the process due mendacious litigants is the suspension of well-founded disbelief and the abandonment of common sense. Moreover, no future board will make the same mistake of extending mercy to a party whose attorney makes a last-minute, faintly suspicious request for a continuance. Any board that values its time, witnesses’ time, and the time of attorneys appearing before it would be foolish to waste the opportunity to proceed and risk *858sixteen months of litigation on an issue completely irrelevant to the merits. Unless, of course, a yet-to-be-discovered due process emanation will someday forbid the denial of any continuance request.
Accordingly, I respectfully dissent and vote to affirm the trial court in all respects.