FILED
Jul 13 2016, 8:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Lynne D. Hammer Robert P. Thomas
Office of Corporation Counsel Thomas & Nugent
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of Indianapolis, July 13, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1510-MI-1765
v. Appeal from the Marion Superior
Court
Bradford Bentley, The Honorable Bruce E. Petit,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
49D01-1409-MI-30056
Baker, Judge.
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[1] An Indianapolis Police sergeant was demoted to patrol officer. He sought
judicial review of the demotion. During the litigation, the City of Indianapolis
(the City) filed the required transcript over six months late and its summary
judgment response and designated evidence over four months late. The trial
court struck all of the untimely filed documents and found in favor of the
officer. The City now appeals. Finding no error, we affirm.
Facts
[2] Sometime in 2013 or 2014, Indianapolis Police Sergeant Brad Bentley was
demoted to patrol officer. On August 26, 2014, the Indianapolis Metropolitan
Police Department Civilian Police Merit Board (Merit Board) upheld the
demotion. Sergeant Bentley filed a petition for judicial review on September
10, 2014, and then filed a motion for summary judgment on November 24,
2014. The City did not file the transcript from the Merit Board hearing within
thirty days of receiving the sergeant’s summons, as required by Indianapolis
Code section 279-237(o).
[3] Sergeant Bentley’s wife works for the Marion County Superior Court. As a
result, the first two trial judges recused themselves. A special judge from
outside of Marion County was appointed on February 6, 2015. On April 8,
2015, the trial court afforded the City twenty-one additional days to file the six-
months-overdue transcript from the Merit Board hearing, though the trial court
did not explicitly state that the transcript would be accepted if filed by the
twenty-one-day deadline. The City filed the transcript on April 27, 2015, but
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the trial court later struck it from the record as untimely filed. On June 16,
2015, the City filed its response to Sergeant Bentley’s summary judgment
motion, but the trial court struck the City’s pleading from the record. 1
Following an argument on the pending summary judgment motion, on October
9, 2015, the trial court found in favor of Sergeant Bentley. In pertinent part, the
trial court found as follows:
5. A second issue addressed at the Pre-Trial Conference held
April 8, 2015, concerned the Defendant’s failure to file a
transcript of the Merit Board proceedings as required
pursuant to Municipal Code of Indianapolis, Section 279-
237. This failure was one of the grounds upon which
Plaintiff was seeking Summary Judgment. The Court
Ordered Defendant to file the transcript within twenty one
(21) days of the Pre-Trial Order and the Defendant did file
that transcript on April 27, 2015. It should be noted that
the Court did not grant leave or approve the late filing of
this transcript in its Order but merely set a deadline to file
that transcript if the Defendant was going to do so. It was
the Court’s intent to address the propriety of a late filing
and Plaintiff’s remedies, if any, at a later time.
***
8. . . . Plaintiff contends that because Defendant failed to file
the transcript of the Merit Board proceedings as required
by the Code Section 279-237, Plaintiff is entitled to
Summary Judgment as a matter of law. . . . . Defendant
did file the transcript on April 27, 2015, and now argues
1
The City’s summary judgment response and designated evidence were filed on June 16, 2015, over four
months past the court-imposed deadline of February 9, 2015.
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that any delay of filing that transcript was de minimis or
non-prejudicial to the Plaintiff and that Defendant has
now substantially complied with the Code’s requirements.
Plaintiff requests that the Court vacate its Order allowing
Defendant to file a transcript outside the thirty (30) day
time limit required by the code and that the Court not
consider same. Defendant responds that the Indianapolis
Municipal Code does not set forth exclusion of the
transcript as a remedy for failure to comply with the time
limits set forth in the Code and that the Code is
inconsistent with the Indiana Administrative Orders and
Procedure Act. . . .
9. The Court rejects Defendant’s argument that because no
remedy is set forth in the Code, then Plaintiff is not
entitled to a remedy for Defendant’s non-compliance. To
rule otherwise would render the Code unenforceable. . . .
There’s no question in this Court’s mind that had the
Plaintiff not complied with the time limits set forth for
filing his Appeal, his Appeal would be subject to a
summary denial. . . . The logical interpretation of the Code
in effectuating its purpose of providing Plaintiff with a
timely means of appeal, is to not allow a late filing of the
transcript without a court order extending the time limits
for good cause or that the reviewing court is granted
discretion with regard to remedies imposed when the Code
is violated. . . . The Court hereby finds that the transcript .
. . was not timely filed and Orders it stricken from the
record.
10. . . . [B]ecause the untimely filed transcript has been
stricken from the record, the Court cannot and does not
find substantial evidence to support the [Merit] Board’s
decision. Further, . . . the Court is unable to make a
determination whether the [Merit] Board’s decision was
arbitrarily [sic] and capricious or an abuse of discretion.
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Although the burden of proof to show the decision was
arbitrary and capricious generally lies with the challenging
party, . . . the Court’s inability to make that determination
and a lack of evidence thereon, is completely through the
fault of the Defendant, not Plaintiff, and Defendant should
not be allowed to benefit from its failure to comply with
the Code’s requirements. The Court finds no basis to
uphold the Merit Board’s decision previously entered.
Appellant’s App. p. 5-8 (internal citations omitted). The trial court reversed the
Merit Board’s ruling and ordered the Merit Board to restore Sergeant Bentley to
the rank of sergeant with retroactive back pay. The City now appeals.
Discussion and Decision
I. Standard of Review
[4] When we review the decision of an administrative agency, we are bound by the
same standard as the trial court. Parker v. Ind. State Fair Bd., 992 N.E.2d 969,
976 (Ind. Ct. App. 2013). We do not try the case de novo and do not substitute
our judgment for that of the agency. Id. Pursuant to the Administrative Orders
and Procedures Act (AOPA), we will reverse the administrative decision only if
it is (1) arbitrary, capricious, 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. Ind. Code § 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. Parker, 992 N.E.2d at 976. The
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burden of demonstrating the invalidity of the agency action is on the party who
asserts the invalidity. Id. In this case, the trial court disposed of the petition by
granting summary judgment in favor of Sergeant Bentley. Summary judgment
is proper where no genuine issue of material fact remains and the movant is
entitled to judgment as a matter of law. Ind. Trial Rule 56(C).
II. Untimely Transcript
[5] The City argues that the trial court erred by striking the untimely-filed
transcript. Our starting point in analyzing this argument must be the City’s
own ordinance, which provides as follows:
Any officer who disagrees with the findings of the merit board
shall have the right to file a verified petition to the Superior or
Circuit Court of Marion County for a review of the decision.
The petition for review must be filed within thirty (30) calendar
days after the written decision of the board. The City of
Indianapolis shall be the sole defendant in the petition for review.
Within thirty (30) calendar days after receipt of a summons, the
city shall cause the merit board to file a true and complete copy
of the transcript of the hearing with the court. The court, without
jury, shall review the record and render its decision as in other
administrative reviews.
Indianapolis Code § 279-237(o) (“the Ordinance”). Initially, we observe that it
is atypical for the respondent, rather than the petitioner, to bear the cost and
responsibility of preparation and filing of the transcript of the administrative
proceeding. But the City drafts and passes its own ordinances, and this is how
it has chosen to structure the review of Merit Board decisions.
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[6] Having decided to structure its procedure in this fashion, the City is bound to
comply with it. The plain language of the Ordinance requires that the City file
the transcript of the Merit Board hearing within thirty days of receipt of the
summons. In this case, the thirty-day deadline passed on October 16, 2014.
The City did not file the transcript until April 27, 2015—193 days late. And
never once, during the course of those six months, did the City request an
extension of time or in any way indicate that it was experiencing difficulty with
preparation of the transcript. This tardiness was not de minimis; it was
extreme. And filing a required document over six months late is not substantial
compliance, as the City argues. The trial court did not err by concluding that
the City did not meet the procedural burden imposed by the Ordinance.
[7] Next, the City argues that because the Ordinance does not set forth a
consequence for an untimely filing, there should be no consequence
whatsoever. We disagree, as reading the Ordinance in this way would make
the thirty-day requirement entirely superfluous.2 Furthermore, it would enable
the City to infinitely delay all petitions for judicial review of Merit Board
decisions, which is a result not intended by the ordinance and which we cannot
countenance. In our view, the absence of a prescribed consequence merely
means that the consequence is left for the trial court to determine. For example,
the trial court could order the City to pay the attorney fees of the petitioner for
2
We also note our certainty that if Sergeant Bentley had filed his petition past the thirty-day deadline
imposed by the Ordinance, the City would have sought dismissal even though the Ordinance does not specify
a remedy for a petitioner’s tardiness.
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the period of delay. We acknowledge that striking the transcript is an extreme
remedy. But as noted above, in this particular case, the City’s delay was
egregious. Therefore, we cannot say that the trial court erred by striking the
transcript that was filed over six months after the deadline had passed.
[8] After the trial court struck the untimely filed transcript and the City’s untimely
filed summary judgment brief and designated evidence, it was left only with
Sergeant Bentley’s summary judgment motion and designated evidence.
Sergeant Bentley still bore the burden, as the petitioner and summary judgment
movant, of establishing that he was entitled to relief. Included among his
designated evidence supporting summary judgment was Sergeant Bentley’s
verified petition for review of the Merit Board’s decision. Appellant’s App. p.
12. In this document, which was signed under oath by Sergeant Bentley and
notarized, id. at 28, Sergeant Bentley stated that on February 10, 2014, the
Merit Board adopted the recommendation that he be demoted from sergeant to
patrolman, id. at 12. As noted above, the AOPA provides that an
administrative decision shall be reversed if, among other things, it is
unsupported by substantial evidence. I.C. § 4-21.5-5-14(d)(5). In this case, with
no transcript and no evidence designated by the City in support of the
demotion, there is no evidence supporting the demotion. Therefore, we find
that the trial court did not err by finding that Sergeant Bentley had met his
burden of establishing that he is entitled to relief as a matter of law and
reversing the Merit Board’s decision.
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III. Remedy
[9] The City argues that even if the trial court properly reversed the Merit Board’s
determination, the trial court’s remedy—ordering the reinstatement of Sergeant
Bentley’s former rank as well as back pay—was improper. According to the
City, the only thing that the trial court was permitted to do was to remand to
the Merit Board for a new hearing. Under the circumstances presented by this
case, we disagree.
[10] We acknowledge the cases cited by the City holding that, following a reversal of
the decision of an administrative agency, the trial court was required to remand
to the agency for reconsideration. Those cases, however, are readily
distinguishable from the case before us. In Hamilton County Department of Public
Welfare v. Smith, this Court affirmed the trial court’s conclusion that the
Department of Public Welfare had made an error of analysis in denying Smith
welfare benefits. 567 N.E.2d 165, 170-71 (Ind. Ct. App. 1991). We found,
however, that the appropriate remedy was to remand to the agency so that it
could further consider Smith’s application in light of this Court’s analysis. Id.;
see also Ind. Alcoholic Beverage Comm’n v. Edwards, 659 N.E.2d 631, 636 (Ind. Ct.
App. 1995) (holding that the trial court had properly reversed the denial of an
alcoholic beverage permit but had improperly ordered the permit awarded;
instead, proper remedy was remand to agency for reconsideration in light of
appellate opinion).
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[11] When an agency errs in its analysis, it makes sense to provide an opportunity
for the agency to reconsider its decision by applying the correct analysis. Here,
however, the trial court did not find that the Merit Board erred in its analysis.
Instead, it found that there was no evidence supporting the Merit Board’s
decision. To remand to the Merit Board under these circumstances would, in
essence, offer the City a chance of a second bite of the apple. Perhaps, the
second time, it could manage to file its documents in a timely fashion. But to
afford the City this chance would be unfair and would also render its own
ordinance entirely meaningless. We do not believe that the City-County
Council intended such a result when it passed the Ordinance, and we decline to
read it in such a fashion. In this case, the only fair remedy is the one ordered by
the trial court—reinstatement to the rank of sergeant and provision of back pay.
In sum, we find no error in the remedy fashioned by the trial court.
[12] The judgment of the trial court is affirmed.
Brown, J., concurs.
May, J., concurs in result with a separate opinion.
Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016 Page 10 of 17
IN THE
COURT OF APPEALS OF INDIANA
City of Indianapolis, Court of Appeals Case No.
49A05-1510-MI-1765
Appellant-Defendant,
v.
Bradford Bentley,
Appellee-Plaintiff.
May, Judge, concurring in result with opinion.
[13] I agree that we must affirm the trial court’s decision to reinstate Officer Bentley
with back pay because the City filed its transcript too late. However, I write
separately to explain why I believe our resolution of this matter of first
impression is correct.
[14] The City cited two decisions in support of its argument the trial court’s order of
reinstatement with back pay was error: Hamilton Cnty Dep’t of Pub. Welfare v.
Smith, 567 N.E.2d 165, 171 (Ind. Ct. App. 1991), and Ind. Alcoholic Beverage
Comm’n v. Edwards, 659 N.E.2d 631 (Ind. Ct. App. 1995). In Smith, we held:
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When a court determines that an administrative agency has made
an error, the court may reverse the agency decision and remand
for further consideration. The reviewing court is without power
to compel any action by the administrative agency; the court only
has the power to order the agency to rehear the case.
567 N.E.2d at 171 (internal citations omitted). That suggests the trial court did
not have the authority to reinstate Bentley and order back pay. Rather,
application of that holding would permit the trial court only to reverse the
agency’s decision and remand for further agency consideration.
[15] This rule was further explained in Edwards:
The express intent of this part of the statute [the precursor to Ind.
Code § 4-21.5-5-15] is to limit the reviewing court’s authority to
remand the case to the administrative agency for further
proceedings after a proper determination that the agency’s
decision was contrary to law. If upon remand the agency
unlawfully withholds or unreasonably delays the redetermination
of the case, then the trial court may compel agency action by
direct order. Otherwise the reviewing court does not have power
to compel agency action as part of the initial review function. It
may only remand the cause for rehearing.
Remanding [the case] to the administrative body gives it an
opportunity to correct the irregularities in its proceedings as
determined by the court. At the same time it avoids the court’s
encroachment upon [the agency’s] administrative functions.
There is no more reason for assuming that the commission will
disregard the law as fixed by this reviewing court than that a
lower trial court will do so.
659 N.E.2d at 636 (internal citations omitted).
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[16] The requirement a trial court remand an issue to an administrative agency in
lieu of taking independent action is also found in federal law. See Fed. Power
Comm’n v. Transcon Gas Pipe Line Corp., 423 U.S. 326, 331 (1976) (“If the
decision of the agency ‘is not sustainable on the administrative record made,
then the . . . decision must be vacated and the matter remanded . . . for further
consideration.’”).
[17] The majority finds Smith and Edwards “readily distinguishable” from the facts
before us. (Slip op. at 9.) The majority correctly characterizes Smith and
Edwards as applicable to scenarios when “an agency errs in its analysis,” id. at
10. In this case, by contrast, the “trial court found that there was no evidence
supporting the Merit Board’s decision.” Id. I do not disagree.
[18] As the majority notes, the ordinance imposing on the City the burden to
produce the transcript provides:
Any officer who disagrees with the findings of the merit board
shall have the right to file a verified petition to the Superior or
Circuit Court of Marion County for a review of the decision.
The petition for review must be filed within thirty (30) calendar
days after the written decision of the board. The City of
Indianapolis shall be the sole defendant in the petition for review.
Within thirty (30) calendar days after receipt of a summons, the
city shall cause the merit board to file a true and complete copy
of the transcript with the court. The court, without jury, shall
review the record and render its decision as in other
administrative reviews.
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Indianapolis Code § 279-237(o). The language of the AOPA is different. See
Ind. Code § 4-21.5-5-13(a) (requiring petitioner to file transcript of proceedings).
Under AOPA, “[f]ailure to file the record within the time permitted by this
subsection, including any extension period ordered by the court, is cause for
dismissal of the petition[.]” Ind. Code § 4-21.5-5-13(b). The majority notes a
similar sanction could be levied on the City for failure to file a transcript when it
has the burden to do so. I agree.
[19] Prior to AOPA’s enactment in 1986, Indiana law required the governmental
body acting as defendant in the appeal of an administrative decision to file a
transcript of the proceedings. Burns Indiana Statutes Annotated § 48-6105
(1951) provided: “Within ten (10) days after the service of summons [indicating
an appeal from the board’s decision] said board shall file in said court a full,
true and complete transcript of all papers, entries and other parts of the record
relating to such particular case.”
[20] Our Indiana Supreme Court interpreted that language in Hansen v. Town of
Highland, 237 Ind. 516, 524, 147 N.E.2d 221, 225 (1958). Hansen, a police
officer and Town Marshal appointed by the outgoing town board appealed the
newly elected board’s decision to relieve him of his duties after the new board
took office. Section 48-6105, which governed decisions by “boards of
metropolitan police officers,” id. at 522, 147 N.E.2d at 224, required the board
to file a transcript within ten days of the date of Hansen’s appeal. Though it is
not entirely clear from the opinion, it seems that procedure was not followed.
With regard to the city’s failure to file a transcript, the Court held:
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The duty is placed upon the city in this case to file the transcript -
not the appellant [Hansen]. The city cannot take advantage of its
own failure to follow a statutory proceeding in regard to
dismissal. . . . A board or public body may not avoid the
statutory obligation of furnishing a transcript in such cases by
failing to file the same within the time directed by the statute, and
thereby thwart an attempt to appeal from its decision.
Id. at 525, 147 N.E.2d at 226. Similarly, here, the City should not be able to
thwart Bentley’s attempt to appeal the Merit Board’s decision by not filing the
record of administrative proceedings.
[21] In James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994), the Supreme Court
of Nebraska interpreted Neb. Rev. Stat. § 84-917(4), which, like the
Indianapolis Ordinance, requires: “Within thirty days after service of the
petition or within such further time as the court for good cause shown may
allow, the agency shall prepare and transmit to the court a certified copy of the
official record of the proceedings had before the agency.”
[22] The facts of James are similar to those here: James appealed a Department of
Social Services (DSS) decision to deny her benefits. The DSS was required to
file the record of the proceedings within thirty days. It did not. Over three
months later, the DSS filed a motion for extension of time, which the trial court
granted. When the DSS did not file the record by the extended due date, James
moved for default judgment. The trial court, in its function as reviewer of
administrative decisions, reversed the DSS’ decision and granted James’ request
for reimbursement of medical expenses.
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[23] In upholding the trial court’s decision, the Supreme Court of Nebraska stated:
It is the duty of courts to prevent dilatory proceedings in the
administration of justice. Aetna Cas. & Surety Co. v. Dickinson, 216
Neb. 660, 345 N.W.2d 8 (1984). In Pressey v. State, 173 Neb. 652,
114 N.W.2d 518 (1962), we recognized the inherent power of the
court to dismiss an action for disobedience of a court order.
However, in this situation it would be inequitable to dismiss the
case because that would penalize James, the party seeking review
of the agency’s order. The district court stated at the hearing on
James’ motion to strike that this was the third or fourth case in
the prior 3 months in which the filing of the transcript by DSS
had been a problem. The court found that DSS’ claim of an
increased workload was not sufficient for the court to make a
finding that good cause had been shown for an extension.
The transcript consisted of 23 pages of testimony and 21 exhibits
which total less than 50 pages. DSS provided no rational
explanation as to why it would take more than 3 months to
produce the transcript. As the court noted, a sanction which
would require DSS to pay the costs of preparing the transcript
would serve no purpose because the agency’s employees prepare
the transcript and because James was proceeding in forma
pauperis. The court determined that the only sanction which
would send a message to DSS concerning its dilatory practice
was to reverse the agency’s order.
James, 246 Neb. at 333-34, 518 N.W.2d at 153.
[24] I believe the James reasoning supports our departure from the general rule that
the trial court is required to remand a matter to the administrative agency on
finding the administrative agency’s decision was not supported by sufficient
evidence or was contrary to law. Instead, when the governmental agency
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acting as the defendant does not do what it is required by law to do when an
individual appeals an administrative board decision, the trial court should have
authority to levy appropriate sanctions, including ordering entry of a result
opposite that reached by the administrative board. Therefore, I respectfully
concur in result.
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