Mary Price, on her own behalf and on behalf of a class of those similarly situated v. Indiana Department of Child Services Director, Indiana Department of Child Services

FILED
Oct 25 2016, 5:54 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth J. Falk Gregory F. Zoeller
Gavin M. Rose Attorney General of Indiana
ACLU of Indiana Frances Barrow
Indianapolis, Indiana Andrea E. Rahman
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Mary Price, on her own behalf October 25, 2016
and on behalf of a class of those Court of Appeals Case No.
similarly situated, 49A05-1602-PL-380
Appellants-Plaintiffs, Appeal from the Marion Superior
Court
v. The Honorable Heather Welch,
Judge
Indiana Department of Child Trial Court Cause No.
Services; Director, Indiana 49D01-1507-PL-23062
Department of Child Services,
Appellees-Defendants.

Riley, Judge.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 1 of 25
 STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Mary Price (Price), on her own behalf and on behalf of a

class of those similarly situated, appeals the trial court’s grant of Appellees-

Defendants’, Indiana Department of Child Services; Director, Indiana

Department of Child Services (collectively, DCS), motion for dismissal of

Price’s Complaint for failing to state a claim for relief pursuant to Indiana Trial

Rule 12(b)(6). 1

[2] We affirm, in part, reverse, in part, and remand.

ISSUES

[3] Price raises two issues on appeal, which we restate as:

(1) Whether Price has a private right of action to enforce the maximum

caseload standard included in Indiana Code section 31-25-2-5; and

(2) Whether Price’s Complaint states a claim for relief as an action for

mandate.

FACTS AND PROCEDURAL HISTORY

[4] Under Indiana law, the DCS is charged with the responsibility of providing

various services to protect children and to strengthen families. The family case

managers (FCMs), employed by the DCS, are “the backbone of Indiana’s child

1
We heard oral argument in this cause on July 20, 2016, at the Indiana Supreme Court Courtroom in
Indianapolis, Indiana. We commend counsel for their excellent advocacy and well-written appellate briefs.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 2 of 25
 welfare system” and the key components in safeguarding the safety of Indiana’s

children. (Appellant’s App. p. 4). They are responsible for, among other

things, investigating reports of abuse or neglect of children in Indiana, ongoing

case management services if the reports indicate that abuse or neglect actually

occurred, providing family support services to strengthen families to help assure

that abuse or neglect will not recur, and offering adoption or other permanency

services if children cannot safely be returned to their homes. Some FCMs may

only provide initial assessments, while others are permanency workers who

monitor and supervise active cases after abuse or neglect is substantiated. In

smaller counties, one FCM may often perform both functions.

[5] Indiana Code section 31-25-2-5 provides, in part, referring to DCS as “the

department,” that:

(a) The department shall ensure that the department maintains
staffing levels of family case managers so that each region has
enough family case managers to allow caseloads to be at not
more than:

(1) Twelve (12) active cases relating to initial assessments,
including investigations of an allegation of child abuse
or neglect; or

(2) Seventeen (17) children monitored and supervised in
active cases relating to ongoing services.

(b) The department shall comply with the maximum caseload
ratios described in subsection (a).

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 3 of 25
 This statutory requirement is further emphasized by Indiana Code section 31-

25-2-10, which clarifies:

(a) This section applies after June 30, 2008.

(b) The department of child services:

(1) must have sufficient qualified and trained staff to:

(A) fulfill the purpose of this article;

(B) comply with the maximum caseload ratios for:

(i) Family case managers; and

(ii) Child welfare caseworkers;

as set forth in [I.C. § ] 31-25-2-5.

[6] Price is currently employed by DCS in Marion County as a permanency

worker. Therefore, pursuant to the statute, her caseload should be limited to no

more than 17 children. However, in the past four years, Price’s caseload has

“always greatly exceed[ed] this number” and at the time of filing the Complaint

amounted to “approximately 43 children.” (Appellant’s App. p. 25). In its

2014 Annual Report to the State Budget Committee and Legislative Council,

the DCS reported that it would need to employ an additional 216.2 FCMs to

comply with the caseload standards mandated by Indiana law. Although

additional money was appropriated to hire more FCMs during the 2015

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 legislative session, insufficient money was made available to allow the

mandated statutory caseload standards to be achieved.

[7] Because of the increasing caseload, Price and other FCMs work much longer

than a 40-hour week in an effort to keep up with their cases. Due to the

excessive caseload, turnover among the FCMs has become a serious problem as

they “frequently leave to find employment that is less stressful and demanding.”

(Appellant’s App. p. 26).

[8] On July 14, 2015, Price filed her Verified Class Action Complaint for Mandate

and Injunctive and Declaratory Relief, contending that DCS violated Indiana

Code section 31-25-2-5 by failing to ensure that the department meets the FCM

standards mandated by statute. Price requested the court to enter an order

mandating or enjoining DCS to take all steps necessary to comply with Indiana

Code section 31-25-2-5. On July 16, 2015, she filed her motion asking to certify

the case as a class action, with the class defined as all FCMs employed by the

DCS.

[9] On September 9, 2015, DCS filed its motion to dismiss for failure to state a

claim for relief pursuant to Indiana Trial Rule 12(b)(6) and supporting

memorandum, arguing for the dismissal of the cause because Price and the

putative class cannot enforce the explicit caseload standards contained in the

statute. Price responded on September 30, 2015, claiming that a cause of action

to enforce the statute existed but that, in any event, she also had a claim for

mandate. In its reply of October 13, 2015, DCS rejected the mandate.

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[10] On January 6, 2016, the trial court conducted a hearing on DCS’s motion for

dismissal. During the hearing, DCS contended, for the first time, that mandate

is not appropriate because Price had an adequate remedy at law in Indiana’s

Civil Service Complaint procedure. On February 22, 2016, the trial court

granted DCS’s motion and dismissed Price’s complaint. The trial court

concluded that no private right of action existed under Indiana Code section 31-

25-2-5 because the protections included in the statute are for the benefit of the

general public. “Any benefit gained by [FCMs] through compliance with I.C. §

31-25-2-5 is ancillary or secondary to that purpose.” (Appellant’s App. p. 17).

Secondly, the trial court held that Price and the putative class of FCMs could

not bring an action for mandate because they had an adequate remedy at law

through the Civil Service Complaint procedure.

[11] Price now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[12] The standard of review on appeal of a trial court’s grant of a motion to dismiss

for the failure to state a claim is de novo and requires no deference to the trial

court’s decision. Bellows v. Bd. of Comm’rs of County of Elkhart, 926 N.E.2d 96,

110 (Ind. Ct. App. 2010). The grant or denial of a motion to dismiss turns only

on the legal sufficiency of the claim and does not require determinations of fact.

Id. “‘A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a

complaint: that is, whether the allegations in the complaint establish any set of

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 circumstances under which a plaintiff would be entitled to relief.’” Id. (quoting

Lei Shi v. Cecilia Yi, 921 N.E.2d 31, 36 (Ind. Ct. App. 2010)). Thus, while we do

not test the sufficiency of the facts alleged with regard to their adequacy to

provide recovery, we do test their sufficiency with regards to whether or not

they have stated some factual scenario in which a legally actionable injury has

occurred. Id.

II. Private Cause of Action

[13] Price first contends that the trial court abused its discretion when it concluded

that Indiana Code section 31-25-2-5 only conferred a public benefit, and did not

grant her a private cause of action. Although Price does not dispute the public

benefits derived from the statute, she argues that the statute also awarded a

private cause of action because

[i]f [Price] and the other FCMs have caseloads that are
manageable they will be able to perform their duties. They will
not have to work overtime to try to keep up with their work.
They will not suffer “burnout” and quit. These are all direct,
private [] benefits to the FCMs. The fact that the FCMs will
have better working conditions if DCS complies with the statute
will inure directly to the public, but it will also bestow a clear and
identifiable private benefit on the FCMs.

(Appellant’s Br. p. 22).

[14] When a civil cause of action is premised upon a violation of a duty imposed by

statute, the initial question to be determined by the court is whether the statute

confers a private right of action. Lockett v. Planned Parenthood of Ind., Inc., 42

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 N.E.3d 119, 127 (Ind. Ct. App. 2015), trans. denied. To find the existence of a

civil cause of action, we first examine legislative intent. Id. We ascertain

whether the statute is designed to protect the general public and whether the

statutory scheme contains an enforcement mechanism or remedies for violation

of the duty. Id. A private party generally may not enforce rights under a statute

designed to protect the public in general and containing a comprehensive

enforcement mechanism. Id. Whether a statute creates a private right of action

is a question of law for the court. Id.

[15] Contending that I.C. § 31-25-2-5 combines a public right of action with a

private benefit, Price relies on Whinery v. Roberson, 819 N.E.2d 465 (Ind. Ct.

App. 2004), trans. dismissed, and Galloway v. Hadley, 881 N.E.2d 667 (Ind. Ct.

App. 2008). In both cases, this court noted that “statutes that confer public and

private benefits . . . establish a private cause of action. Indeed, it makes little

sense to preclude recovery for violations of specific rights merely because the

public receives an ancillary benefit from the statute conferring the rights.”

Whinery, 819 N.E.2d at 475; Galloway, 881 N.E.2d at 672. Applied to I.C. § 31-

25-2-5, Price asserts that “the general benefit to the public flows directly from

the private benefit that the statute provides to the FCMs.” (Appellant’s Br. p.

22). We disagree.

[16] “[W]hen the legislative purpose is general in nature, the mere fact that statutory

language refers to a class of people does not create a private cause of action.”

Americanos v. State, 728 N.E.2d 895, 898 (Ind. Ct. App. 2000), trans. denied.

Examining the legislative intent, we conclude that the imposition of caseload

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 8 of 25
 requirements was intended to protect the public in general through the

consistent, efficient, and effective administration of DCS’s services. Although it

is undeniable that Price and the other FCM’s will benefit from a manageable

caseload, our legislature’s main consideration in enacting the statute was to

protect the children and families in our society. In order to promote this public

duty of protection, the legislature sought to ensure an agreeable work

environment for FCMs. Therefore, as no duty for a particular individual’s

benefit was imposed, no private cause of action flows from I.C. § 31-25-2-5.

III. Mandate

[17] In an attempt to bring the DCS into compliance with its statutory duty

encapsulated in I.C.§ 31-25-2-5, Price also claims the right to bring a mandate

action to compel the DCS to comply with the duty it is shirking, i.e., to

maintain the prescribed staffing levels.

[18] Indiana Code section 34-27-3-1 provides:

An action for mandate may be prosecuted against any inferior
tribunal, corporation, public or corporate officer, or person to
compel the performance of any:

(1) act that the law specifically requires; or

(2) duty resulting from any office, trust, or station.

“An action for mandate, an extraordinary remedy of an equitable nature, is

generally viewed with disfavor.” Hayes v. Trustees of Ind. Univ., 902 N.E.2d 303,

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 9 of 25
 315 (Ind. Ct. App. 2009) (quoting Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.

Ct. App. 2007), trans. denied. Mandamus cannot be invoked unless the

petitioner has a clear and unquestioned right to relief and the respondent has

failed to perform a clear, absolute, and imperative duty imposed by law. Id.

“[T]he mandamus action does not lie to establish a right or to define and

impose a duty.” Id. Public officials, boards, and commissions may be

mandated to perform ministerial acts when under a clear legal duty to perform

such acts. Id. Stated another way, a mandate order will not be granted to

control the discretionary action of a public officer, board, or commission.

Harmony Health Plan of Ind., Inc., v. Ind. Dep’t of Admin., 864 N.E.2d 1083, 1089

(Ind. Ct. App. 2007). “[A]n honest exercise of that discretion will not be

disturbed by the courts.” Id.

A. Standing

[19] It should be mentioned that an action for mandate does not confer automatic

standing upon a plaintiff. We have previously determined that a plaintiff

seeking mandate must show actual injury by the challenged governmental

action. State ex rel. Berkshire v. City of Logansport, 928 N.E.2d 587, 597 (Ind. Ct.

App. 2010), trans denied.

[20] Even though no private cause of action exists to enforce I.C. § 31-25-2-5, in

Cittadine v. Ind. Dep’t of Transp. 790 N.E.2d 978, 980 (Ind. 2003), our supreme

court reaffirmed the continued vitality of Indiana’s public standing doctrine:

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 The public standing doctrine, which applies in cases where public
rather than private rights are at issue and in cases which involve
the enforcement of a public rather than a private right, continues
to be a viable exception to the general standing requirement. The
public standing doctrine permits the asserting of all proper legal
challenges, including claims that government action is
unconstitutional.

Although the supreme court did not define “public right” in this context, it cited

several examples where a public right was found to exist. See, e.g., Miller v. City

of Evansville, 189 N.E.2d 823 (Ind. 1963) (resident-taxpayer has a public right

where city’s waterworks department was allegedly not authorized to contract

for construction of equipment for fluoridation of public drinking water); Davis

Const. Co. v. Bd. of Comm’rs of Boone Co., 132 N.E. 629 (Ind. 1921) (taxpayer had

public right where allegedly unconstitutional statute sought to impose property

tax in district in which he lived and owned property subject to assessment);

Brooks v. State, ex rel. Singer, 70 N.E 980 (Ind. 1904) (citizen-voter of Ripley

County had a public interest in the constitutional apportionment of senators

and representatives throughout the state); Hamilton v. State ex rel. Bates, 3 Ind.

452 (1852) (citizen-taxpayer of Marion County has a public interest in the

county auditor correctly discharging the duties of his office).

[21] Just like the public interest found to exist and confer standing in Cittadine and

other case law referenced, rights created under I.C. § 31-25-2-5 are public and

confer public standing on Price. The purpose of the statutorily defined

maximum caseload ratios is to provide protections to the general public through

consistent, efficient, and effective administration of child and family services.

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 Accordingly—and the State does not contest—Price, as member of the general

public, can avail herself of the statute through the public standing doctrine.

B. Exhaustion of Remedies

[22] Because the issuance of a mandate is an extraordinary remedy, where an

adequate remedy at law is available, mandate should not be imposed to compel

performance of an act. Whitney v. Bd. of Sch. Trustees of DeKalb Co. Eastern Cmty.

Sch. Dist., 416 N.E.2d 1289, 1292 (Ind. 1981). As such, “[t]he mandate itself is

meant to accomplish what cannot otherwise be accomplished through ordinary

legal or equitable remedies.” Ind. Revenue Bd. v. State ex rel Bd of Comm’rs of Co.

of Hendricks, 385 N.E.2d 1131, 1134 (Ind. 1979).

[23] Within the arena of administrative agencies, like here, “[t]here exists a strong

bias in the case law in favor of the requirement that administrative remedies be

exhausted.” Smith v. State Lottery Comm’n of Ind., 701 N.E.2d 926, 931 (Ind. Ct.

App. 1998), trans. denied. The objective of such a requirement is to avoid

collateral, dilatory action, ensure the efficient, uninterrupted progression of

administrative proceedings and the effective application of judicial review, and

provide an agency with an opportunity to correct its own errors and to compile

a factual record as necessary for judicial review. Id.

[24] Nevertheless, exceptions to the requirement of exhaustion of remedies at the

agency level exist. A party is excepted from the exhaustion requirement when

the remedy is inadequate or would be futile, or when some equitable

consideration precludes application of the rule. Ind. State Building & Constr.

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 Trades Council v. Warsaw Cmty. Sch. Corp., 493 N.E.2d 800, 806 (Ind. Ct. App.

1986). To prevail upon a claim of futility, “one must show that the

administrative agency was powerless to effect a remedy or that it would have

been impossible or fruitless and of no value under the circumstances.” Id.

Also, the requirement of exhaustion of administrative remedies “will be relaxed

where there is grave doubt as to the availability of the administrative remedy.”

Ind. High Sch. Athletic Ass’n v. Raike, 329 N.E.2d 66, 82 (Ind. 1975).

[25] Focusing on the exhaustion requirement, the trial court noted:

In this case, the [c]ourt finds that an adequate remedy at law
exists to enforce caseload requirements under Article 25 for
Caseworkers under Indiana’s Civil Service Complaint procedure
established under I.C. § 4-15-2.2-42. I.C. § 4-15-2.2-42 allows
state employees, such as Price, to file a complaint concerning a
Department’s application of a law, rule, or policy and establishes
a procedure for resolution, including a mechanism for
reconsideration of the initial findings by the Director of State
Personnel and an appeal of the decision to the State Employee
Appeals Commission (“SEAC”). The decisions of SEAC
concerning the resolution of the complaint are subject to legal
review in accordance with I.C. [Ch] 4-21.5-3. The Legislature
established this complaint procedure to provide state employees a
fair process to resolve complaints concerning the “application of
a law, rule, or policy to the complainant.”

(Appellant’s App. p. 19) (emphasis in original) (internal citations omitted).

Because the trial court concluded that Price had not exhausted the

administrative remedy of the Indiana’s Civil Service Complaint procedure, the

trial court dismissed Price’s complaint.

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[26] The Indiana Civil Service Complaint procedure, as defined in I.C. § 4-15-2.2-

42(a), provides that “[a]n employee in the state civil service system may file a

complaint concerning the application of a law, rule, or policy to the

complainant.” This complaint must be filed “as soon as possible after the

occurrence of the act or condition complained of, and not later than thirty (30)

calendar days after the employee became aware or by the exercise of reasonable

diligence should have been aware, of the occurrence giving rise to the

complaint.” I.C. § 4-15-2.2-42(c). The complaint must be filed with the

“appointing authority,” which is defined as “the head of a department, division,

board or commission, or an individual or group of individuals who have the

power by law or by lawfully delegated authority to make appointments to

positions in the state civil service.” I.C. § 4-15-2.2-2. An appeal may be taken

to the State personnel director, and a final administrative appeal is available to

the State Employees Appeals Commission. I.C. § 4-15-2.2-2(e). After

exhaustion of these administrative remedies, a judicial review may be

requested. I.C. § 4-15-2.2-2(h).

[27] Accordingly, the administrative procedure is geared towards the resolution of

“acts or conditions” which include the “application of a law, rule, or policy”

with respect to the complainant. See I.C. § 4-15-2.2-42(a)&(c). As we noted in

Abner v. Dep’t of Health of State of Ind. ex rel. Ind. Soldiers’ & Sailors’ Children’s

Home, 777 N.E.2d 778, 782 (Ind. Ct. App. 2002), trans. denied, these terms must

be given a “liberal construction.” While the caseload ratio is arguably a

condition which entails the application of a statute, we agree with Price that the

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 matter before us concerns a systemic deficiency which is not unique to her but

is experienced by hundreds of case workers in Indiana.

[28] A review of the case law of the State Employees Appeals Commission reveals

that its usual issues pertain to individual employment related acts, such as

employee termination (see, e.g., Westville Correctional Facility v. Finney, 953

N.E.2d 1116 (Ind. Ct. App. 2011)); equal pay (see, e.g., Indiana State Employees

Appeal Comm’n v. Bishop, 721 N.E.2d 881 (Ind. Ct. App. 1999); Ind. State

Employees’ Appeals Com’n v. Greene, 716 N.E.2d 54 (Ind. Ct. App. 1999));

reinstatement of employees (see e.g., Evansville State Hosp. v. Perry, 549 N.E.2d 44

(Ind. Ct. App. 1989); and retirement annuity (see, e.g., State v. Young, 855 N.E.2d

329 (Ind. Ct. App. 2006)). In Ahles v. Orr, 456 N.E.2d 425, 426 (Ind. Ct. App.

1983), we noted that the “subjects addressed by the administrative procedures

prescribed in” I.C. § 4-15-2.2-42 2 are “complaints relating to involuntary

changes in employment or claimed unsatisfactory working conditions[.]” The

systemic challenge brought by Price falls outside the boundaries of this

administrative appeals procedure and must be addressed by the judicial system.

It is undeniable that the administrative tribunals cannot order the Governor to

take action or order the legislature to comply with its own statute. “[C]ourts

have recognized the futility of exhaustion where a plaintiff do[es] not challenge

an individual . . . decision by the [agency] where agency expertise would be

2
Ahles refers to I.C. § 4-15-2-35, which has been repealed. The current version of the statute is I.C. § 4-15-
2.2-42.

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 important but instead challenges the agency’s policy, pattern, and practice or

systemic failure to comply with federal law.” Lazaridis v. Social Sec. Admin, 856

F.Supp.2d 93, 98 (D.D.C. Apr. 19, 2012). Therefore, “[i]f the administrative

procedure is incapable of offering a remedy for a party’s complaint and is

incapable of addressing the issues presented by a party’s claim, exhaustion is

not required. . . . ‘When the character of the question presented is beyond the

pale of the agency’s competency, expertise, and authority, failure to exhaust

will be excused.’” Rene ex. rel. Rene v. Reed, 726 N.E.2d 808, 819 (Ind. Ct. App.

2000) (quoting Rambo v. Cohen, 587 N.E.2d 140, 144 (Ind. Ct. App. 1992), trans.

denied). Accordingly, we cannot conclude that Price’s complaint falls within the

purview of the “acts or conditions” that Indiana’s Civil Service Complaint

procedure addresses. Therefore, no adequate remedy is available.

C. Clear Duty Imposed by Law

[29] However, even though the DCS failed to formulate an explicit response to

Price’s systemic deficiencies’ argument, DCS argues that mandate is

inappropriate because any order by the court would entail a violation of the

separation of powers doctrine and dictate the performance of discretionary

agency acts. Specifically, DCS argues that in order to employ more staff to

satisfy the statutory caseload standard established in I.C.§ 31-25-2-5, the

legislature and Governor will have to be ordered to free up funding and to

engage in specific discretionary acts. We disagree.

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[30] The statutory caseload maximums included in I.C. § 31-25-2-5(a) & (b) are not

an aspirational goal but are a clear and definite number to attain. The statute

declares, in pertinent part:

(a) The department shall ensure that the department maintains
staffing levels of family case managers so that each region has
enough family case managers to allow caseloads to be at not
more than:

(3) Twelve (12) active cases relating to initial assessments,
including investigations of an allegation of child abuse
or neglect; or

(4) Seventeen (17) children monitored and supervised in
active cases relating to ongoing services.

(b) The department shall comply with the maximum caseload
ratios described in subsection (a).

I.C. § 31-25-2-5 (emphasis added). By phrasing the statute in mandatory

language, it could not be more specific or absolute. “When the word ‘shall’

appears in a statute, it is construed as mandatory rather than directory unless it

appears from the context or the purpose of the statute that the legislature

intended a different meaning.” City of Wabash v. Wabash Co. Sheriff’s Dep’t, 562

N.E.2d 1299, 1301 (Ind. Ct. App. 1990). And, “absent any legislative direction

to the contrary, ‘must’ means ‘must.’” In re Resnover, 979 N.E.2d 668, 677 (Ind.

Ct. App. 2012).

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 17 of 25
[31] In her Complaint, Price merely requests that the DCS be mandated to comply

with its legal duties, i.e., the caseload maximums. How DCS accomplishes this

is up to the agency. 3 “Courts may and sometimes do exercise authority to

compel public officials to act in matters where discretion is involved, but they

do not undertake to control the discretion.” Ind. State Highway Comm’n v.

Zehner, 366 N.E.2d 697, 701 (Ind. Ct. App. 1977) (see, e.g., Ind. Alcoholic Beverage

Comm’n v. State ex rel. Harmon, 379 N.E.2d 140, 146 (Ind. 1978) (although the

Alcoholic Beverage Commission has discretion as to whether or not to issue a

liquor license, it can be compelled to take action on an application)). Thus,

contrary to the DCS’ argument, Price is not requesting an order that invades the

province of the other branches of government but rather wants the DCS to

merely comply with the statute. As such, the mandate action is directed at the

clear statutory duty, not at the DCS’s discretion.

[32] Accordingly, as Indiana Code section 31-25-2-5 imposes a clear, absolute, and

imperative duty on DCS to comply with maximum caseload standards as

determined by the legislature and no administrative remedy is available to

3
DCS argues that it will be impossible to enforce compliance with the statute as

[i]t would be impractical for the trial court to establish a deadline because DCS’s
compliance with the statute relies on a key external factor that is out of DCS’s control – the
number of people able and willing to work as an FCM. Moreover, other external factors
come into play, such as DCS’s need to obtain sufficient funding to hire the necessary
people and the number of active cases remaining steady or declining.
(Appellee’s Br. p. 43). However, these arguments are directed at a possible future defense DCS might have
against claims that it did not comply with a mandate order. An appeal from a grant of a motion to dismiss is
not the place to consider such possible defenses. The uncertain possibility of such a future eventuality does
not militate against the fact that DCS is under a specific duty today to abide by definite caseload standards.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 18 of 25
 address this systemic violation of Indiana law, we conclude that Price can

proceed with a mandate action. We therefore reverse the trial court’s order to

dismiss with respect to the mandate and remand for further proceedings.

CONCLUSION

[33] Based on the foregoing, we conclude that even though Price has no private case

of action under I.C. § 31-25-2-5, Price’s Complaint states a claim for relief as an

action for mandate.

[34] Affirmed in part, reversed in part, and remanded.

[35] Robb, J. concurs in part and concurs in result in part with separate opinion.

[36] Kirsch, J. concurs in part and dissents in part with separate opinion.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 19 of 25
 IN THE
COURT OF APPEALS OF INDIANA

Mary Price, on her own behalf Court of Appeals Case No.
and on behalf of a class of those 49A05-1602-PL-380
similarly situated,
Appellants-Plaintiffs,

v.

Indiana Department of Child
Services; Director, Indiana
Department of Child Services,
Appellees-Defendants.

Robb, Judge, concurring in part and concurring in result in part.

[37] I concur fully in Part II of the majority opinion affirming the trial court’s

decision that Price does not have a private right of action to enforce the

statutory maximum caseload standard. As to Part III, I respectfully concur in

result.

[38] As Judge Riley notes, mandate is available only where no adequate remedy at

law is available. See slip op. at ¶ 22 (citing Whitney v. Bd. of Sch. Trustees of

DeKalb Co. Eastern Cmty. Sch. Dist., 416 N.E.2d 1289, 1292 (Ind. 1981)). The

dissent believes Price has an adequate remedy under the Indiana Civil Service

Complaint procedure and mandate is therefore inappropriate. See slip op. at ¶ -.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 20 of 25
 I believe we cannot find that an adequate remedy is available through the Civil

Service Complaint procedure, see slip op. at ¶ 28. I write separately to elaborate

upon that conclusion.

[39] The Indiana Civil Service Complaint procedure may be a remedy, but we are

not in a position to say it is an adequate remedy, given DCS’s concession at oral

argument that its caseworkers’ caseload numbers continue to climb and the

money appropriated by the legislature has thus far not been enough to allow

DCS to hire enough caseworkers to meet the statutory caseload limitation. Any

remedy Price could obtain through the civil service complaint procedure would

be to her benefit only, and therefore would be inadequate at best, if not

completely illusory, in addressing the fullness of the problem. Although DCS

professes to want to comply and to intend to comply with the statute “to the

extent possible,”

https://mycourts.in.gov/arguments/default.aspx?id=1981&view=detail

(beginning at 22:58), the fact is DCS is unable to comply with the letter of the

statute, even if through no fault of its own. There is nothing to be gained by

forcing Price to go through the motions of pursuing such a complaint on her

own behalf when many caseworkers across the state would continue to face the

same dilemma; in fact, much stands to be lost by delaying resolution of this

issue. No matter how well-intentioned, people who are overwhelmed are prone

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 21 of 25
 to making mistakes, 4 and in this particular situation, a mistake could come at

the cost of a child’s welfare.

[40] As we have determined herein, Price and similarly-situated caseworkers do not

have a private right of action to enforce the statute. We have further

determined that the Civil Service Complaint procedure does not provide an

adequate remedy for allegations of noncompliance with the statute. And I note

that although DCS asserted at oral argument the statute is for the primary

benefit of children and families, it also acknowledged even a child or a parent

harmed by a caseworker’s caseload in excess of the statutory limitation would

not have a right to sue for violation of the statute. In other words, as DCS

succinctly put it, “there are no potential plaintiffs” for a violation of this statute.

https://mycourts.in.gov/arguments/default.aspx?id=1981&view=detail

(beginning at 26:10).

[41] Price does not specifically rely on Article 1, section 12 of the Indiana

Constitution to support her claim for mandate, but I believe that provision gives

context to our decision in light of the foregoing. Section 12 states, “All courts

shall be open; and every person, for injury done to him in his person, property,

4
For example, our supreme court recently disciplined an attorney for failing to act with reasonable diligence
and promptness, failure to keep a client reasonably informed about the status of a matter, and failure to
explain a matter to the extent reasonably necessary to permit a client to make informed decisions for three
incidents arising out of his service as a contracted county public defender. In re Shoaf, 57 N.E.3d 808 (Ind.
2016). Described as doing “an exceptionally good job as public defender,” the attorney in question was
assigned a caseload in a year’s time that was so high it would be difficult to adequately monitor. Julie
McClure, Local public defender’s law license suspended 60 days, The Republic (Sept. 10, 2016),
http://www.therepublic.com/2016/09/11/local_public_defenders_law_license_suspended_60_days/ (last
visited Oct. 11, 2016).

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 22 of 25
 or reputation, shall have remedy by due course of law.” This constitutional

provision “does not specify any particular remedy for any particular wrong.

Rather, it leaves the definition of wrongs and the specification of remedies to

the legislature and the common law.” Cantrell v. Morris, 849 N.E.2d 488, 499

(Ind. 2006). In McIntosh v. Melroe Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d

972, 978-80 (Ind. 2000), our supreme court held that a products liability statute

of repose that bars a claim that accrues more than ten years after the product

was delivered to its initial user does not violate section 12 precisely because the

legislature is allowed to expand or restrict the scope of a cause of action it has

created. Section 12 requires procedural fairness: in the situation presented by

McIntosh, it protects the remedy of all plaintiffs whose injuries accrue within the

time limitation of the statute of repose, but because the statute of repose

extinguishes the claim after that time, section 12 may not be invoked by those

whose injuries accrue outside that time. Accordingly, the legislative choice to

enact a statute of repose does not violate section 12 because “no one with an

accrued claim is in the position of having the claim but no practical means of

asserting it.” Id. at 978.

[42] Here, the legislature has defined a wrong—an on-going services caseload

greater than seventeen cases at any one time—but has not specified a remedy.

No one, at any time, has a means, practical or otherwise, for asserting a claim

based on a violation of the statutory limit on caseloads, which has to violate the

protections in section 12. In contrast to statutes of repose such as in McIntosh

which cut short a remedy or statutes of limitations cases in which a party slept

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 23 of 25
 on an available remedy, here there is no remedy unless we accept Judge Riley’s

alternate resolution of considering a mandate to compel DCS to act in

accordance with the statute.

[43] For these reasons, I concur with Judge Riley that the trial court’s dismissal of

Price’s action was in error.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 24 of 25
 IN THE
COURT OF APPEALS OF INDIANA

Mary Price, on her own behalf Court of Appeals Case No.
and on behalf of a class of those 49A05-1602-PL-380
similarly situated,
Appellants-Plaintiffs,

v.

Indiana Department of Child
Services; Director, Indiana
Department of Child Services,
Appellees-Defendants.

Kirsch, Judge, concurring in part and dissenting in part.

[44] I fully concur with my colleagues' decision affirming the trial court's

judgment that the appellant does not have a private right of action. I believe,

however, that the trial court was also correct in concluding that the appellant

had an adequate remedy under the Indiana Civil Service Complaint procedure

which she has failed to exhaust. As a result, we should not reach the issue of

whether there is a public right of action under the statute.

Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016 Page 25 of 25