Indiana Court Decisions: April 6-19, 2023

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7th Circuit Court of Appeals

April 7

John M. Kluge v. Brownsburg Community School Corp.


7th Circuit sides with school district following teacher’s ‘forced resignation’ over transgender name policy

A Central Indiana school district did not violate the religious rights of a former teacher who resigned after refusing to follow the district’s policy for how to address transgender students, the 7th Circuit Court of Appeals has ruled in affirming a district court’s decision.

Brownsburg Community School Corporation hired John Kluge as a music and orchestra teacher at the high school in 2014, and he was employed until the end of the 2017-2018 school year.

Prior to the start of that school year, school officials became aware that several transgender students were enrolled as freshmen, leading to a discussion about how to address those students’ needs.

School staff became aware of the discussions in January 2017, when administrators invited Craig Lee, a Brownsburg teacher and faculty adviser for the high school’s Equality Alliance Club, to speak about transgenderism at a faculty meeting.

After a series of faculty meetings, Kluge and three other teachers approached the principal, Bret Daghe, with a letter expressing religious objections to transgenderism, taking the position that the school should not treat gender dysphoria as a protected status and urging the school not to require teachers to refer to transgender students by names or pronouns that the teachers deemed inconsistent with the students’ sex recorded at birth.

Kluge identifies as Christian and believes gender dysphoria “is a type/manifestation of effeminacy, which is sinful.” He said he also believes calling students by their preferred names would be “encouraging them in sin.”

Daghe suggested teachers use students’ names and pronouns as recorded in the school’s student database. The three teachers who signed Kluge’s letter accepted the suggestion. While Daghe thought all four teachers were in agreement with the practice, Kluge believed he was “on the same page” with Daghe that he could continue using students’ “legal names.”

About a week before the start of the 2017–2018 school year, a guidance counselor sent emails to several teachers, including Kluge, informing them that they would have a transgender student in their classrooms. Because the emails to Kluge said “feel free to use” a student’s preferred name and pronoun, Kluge read the emails as “permissive, not mandatory.”

Kluge met with Daghe the day before classes started and said he would not call the two transgender students in his classroom by their preferred names and pronouns. Daghe consulted Superintendent Jim Snapp, who told Kluge he was required to use the names in the student database.

Snapp gave Kluge three options: comply with the policy, resign or be suspended pending termination. Kluge refused to comply or resign, so Snapp suspended him and told him to go home.

Kluge then presented them with two requested accommodations: that he be allowed to call students by their last names only — “like a gym coach” — and that he not be responsible for handing out gender-specific orchestra uniforms to students.

Snapp and the HR director agreed to the accommodations, and Kluge agreed to an altered draft agreement.

Within a month, Daghe started to hear complaints about Kluge from Lee, the Equity Alliance Club adviser. The complaints included how the two transgender students in Kluge’s class said he was referring to them by their last names only, which they found insulting and disrespectful, and that Kluge would occasionally slip up and use first names or gendered honorifics.

The transgender students gave sworn statements about their experiences in Kluge’s class. One of the students said Kluge referred to him as “miss” several times.

The other student left Brownburg at the end of the school year, citing harassment he faced after Kluge left the school.

Kluge emailed Snapp and Daghe to say he didn’t believe the last-names-only policy was limited to the 2017-2018 school year. Kluge secretly recorded a subsequent meeting with Daghe and the HR director, who reaffirmed the new policies.

The conversation then turned to Kluge’s resignation/termination. The HR director explained that because his position was difficult to fill, the school would need to begin the search as soon as possible. Kluge interpreted this offer as allowing him to submit a conditional resignation that he could withdraw before some agreed date.

Kluge submitted his resignation by email on April 30, 2018, and said he would resign as of early August at the end of his contract for the academic year.

In May, the HR director wasn’t present at a scheduled meeting with Kluge and Daghe, who told Kluge not to meet with the director that day.

Instead, Kluge delivered a letter to her office saying he wanted to meet to withdraw his resignation and request a continuation of accommodations. A few hours later, Brownsburg locked Kluge out of the school buildings and online services and posted his job as vacant.

In June, Kluge was denied a request to speak at a school board meeting, but he gave a brief statement during the public comment portion, asking the board to allow him to withdraw his resignation. The board instead accepted his resignation without comment.

Kluge brought a Title VII religious discrimination and retaliation suit against Brownsburg Community School Corporation. He also brought claims under the First and 14th amendments and Indiana law.

The U.S. District Court for the Southern District of Indiana, Indianapolis Division, dismissed the claims under the First and 14th amendments as well as the state law claims and the Title VII claim for hostile work environment.

The district court granted summary judgment in favor of the school after concluding that the school was unable to accommodate Kluge’s religious beliefs and practices without imposing an undue hardship on the school’s conduct of its business of educating all students. The district court also granted summary judgment in favor of Brownsburg on Kluge’s retaliation claim.

Kluge appealed.

For the discrimination claim, he asked the 7th Circuit to remand to the district court to enter summary judgment in his favor because Brownsburg withdrew a reasonable accommodation and forced him to resign without demonstrating that the accommodation caused undue hardship. He also asked the court to find that he preserved his retaliation claim and presented sufficient evidence in support of that claim to merit summary judgment in his favor. Alternatively, he sought a trial on the retaliation claim.

The 7th Circuit disagreed with Kluge in both cases.

Because Kluge established a prima facie case of failure to accommodate, the 7th Circuit opinion says the burden shifted to Brownsburg to demonstrate it could not reasonably accommodate Kluge without undue hardship on the employer’s business.

The 7th Circuit concluded Brownsburg met its burden of establishing undue hardship as a matter of law.

“Kluge has produced no evidence to the contrary,” the opinion states. “That is, he has produced no evidence tending to show that the transgender students were not emotionally harmed by his practice or that the learning environment was not disrupted.”

The opinion continues: “Education is, indeed, the business of every school. Thus, emotional harm to students and disruptions to the learning environment are objectively more than de minimis or slight burdens to schools.”

The opinion also states that no other reasonable accommodation was available.

“Kluge was the school’s only music teacher, and so students could not, for example, be transferred to another classroom (if we assume that transfer to another classroom would not be equally stigmatizing),” the opinion says.

Kluge sought to prove his retaliation claim using the burden-shifting method outlined by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

That means Kluge would have to demonstrate that: he engaged in statutorily protected activity; he suffered a materially adverse action; and there is a but-for causal connection between the two events.

The 7th Circuit noted that the district court found Kluge “waived his retaliation argument at summary judgment with meager briefing, simply reciting his version of the facts without discussing how those facts meet the legal requirements of a retaliation claim.”

But the 7th Circuit said even though Kluge’s briefing was “thin,” the argument wasn’t waived. Still, he wasn’t successful.

“Kluge’s claim fails on the causation element,” the opinion states. “That is, he failed to produce evidence that established a but-for causal link between protected activity and the adverse action, and so failed to make out a prima facie case of retaliation.”

The opinion says Kluge relied on “outdated precedent” on appeal and that he cited nothing supporting but-
for causation.

Judge Ilana Rovner wrote the majority opinion.

The case is John M. Kluge v. Brownsburg Community School Corp., 21-2475.

Judge Michael Brennan concurred in part and dissented in part with a separate opinion.

Brennan dissented on the religious accommodation claim, concluding that a “genuine issue of material fact exists on undue hardship” and that he would remand that issue for trial. He concurred in the judgment for the school district on Kluge’s retaliation claim.


April 19

United States of America v. Michael Thomas


Suspected drug dealer who used alias to rent condo wins reversal at 7th Circuit

Although he had used an alias to hide from law enforcement and rent a condo, law enforcement did not have the right to search a suspected drug dealer’s residence with only his landlord’s consent, the 7th Circuit Court of Appeals has ruled.

Federal officials had suspected Michael Thomas of supplying large amounts of illegal drugs in Indiana. He was also wanted by state officials, and warrants had been issued for his arrest.

In order to keep a low profile, Thomas obtained fake identification documents, including one issued in North Carolina under the name Frieson Dewayne Alredius. Using that name, he was able to lease a condo in Atlanta.

From there, federal officials tracked Thomas and arrested him outside the condo building. With the landlord’s consent, they searched the condo and found drugs, drug paraphernalia and six cellphones.

After obtaining warrants to search the phones, federal officials found evidence that Thomas was trafficking methamphetamine. A grand jury subsequently indicted him for conspiracy to distribute meth.

Thomas filed a motion to suppress the evidence obtained from the search of the condo, arguing his landlord could not consent to the search of property he had leased. The government admitted the lease gave Thomas the expectation of privacy, but because he had used a fake identity to obtain the lease — a crime in Georgia — the expectation of privacy was unreasonable. The Indiana Southern District Court agreed and denied the motion.

Thomas then pleaded guilty but reserved his right to appeal the suppression order. He was sentenced to 15 years in prison.

Thomas then appealed the denial of the suppression order, and the 7th Circuit reversed and remanded.

“The warrantless search of his condo violated the Fourth Amendment if he had a subjective expectation that his landlord could not invite the police to search his residence and society is prepared to recognize that expectation as reasonable,” Judge Frank Easterbrook wrote, citing Katz v. United States, 389 U.S. 347 (1967). “That Thomas had a subjective expectation of privacy is not in dispute. The question, then, is whether deceiving one’s landlord to obtain a lease alters society’s understanding that a landlord may not consent to a search on the tenant’s behalf.”

The appellate court then cited Chapman v. United States, 365 U.S. 610 (1961), which holds that a tenant can lawfully exclude others, including the police, even if the landlord consents to a search.

“To be sure, some people may consent to a search even when they cannot evict a tenant,” Easterbrook wrote. “… But Chapman holds that a landlord is not among them. … Thomas’ landlord could not summarily terminate his protections without violating the Georgia Code, nor could she consent to a warrantless search of his condo.

“… Under the approach proposed by the United States, by contrast, a search may be deemed valid or invalid depending on facts discovered later, in the course of prosecution,” Easterbrook continued. “At the time of the search, law enforcement knew that Thomas was a fugitive but did not know whether he had shown a fake identity card to the landlord, whether the landlord ran background checks, and so on.

“What the agents knew at the time of the search,” the 7th Circuit concluded, “was not enough to defeat Thomas’s expectation of privacy in the condo.”

The case of United States of America v. Michael Thomas, 21-3169, was thus remanded for further proceedings.

Court of Appeals of Indiana

April 11

Amy Rainey v. Indiana Election Commission, Daniel Holtz


COA dismisses appeal of woman kept off May 2022 GOP primary, citing mootness

A would-be candidate in last year’s Republican primary cannot now appeal the challenge to her candidacy that ultimately kept her off the ballot.

The Court of Appeals of Indiana dismissed the case as moot, noting the appellant could have appealed before the May 2022 primary date.

Judge Dana Kenworthy penned the unanimous opinion in Amy Rainey v. Indiana Election Commission, Daniel Holtz, 22A-PL-1548, dismissing as moot Amy Rainey’s appeal, filed after the Marion Superior Court declined to grant her relief after she was kept of the May 2022 Republican primary ballot.

Rainey was seeking to run in the Republican primary for the Indiana House District 49 seat, which is now held by Republican Rep. Joanna King.

Before the May 2022 primary, Elkhart County Republican Party Chair Daniel Holtz challenged Rainey’s candidacy, alleging she was “not affiliated with the party in the way Indiana Code Section 3-8-2-7 requires.”

That statute requires a “statement of the candidate’s party affiliation,” with the candidate proving they are “affiliated” with the party by either proving that the most recent primary in which they voted was a primary held by the applicable political party, or with the county chairman of the party or the county in which the candidate resides certifying that the candidate is a member of the party.

Rainey seemed to address those requirements in a video posted to her campaign Facebook page on April 28, 2022, in which she said, “It’s clear that the major parties do not consider you to actually be a member of the major party if you are simply a voter. So you have to engage with the process, you have to vote in the primaries, even if there’s only one choice.

“A lot of us who are common-sense people would think, ‘Well I won’t go vote in the primary because there’s only one person on the ticket, so taking time off work to drive over there, to request a ballot, to vote for the only option on the ballot doesn’t make a lot of sense,’” Rainey said in the video. “But know that the decision not to take time off work and to drive over and vote for the candidate that you will be checking the box for will count against you if you ever want to get engaged with the party.”

Holtz’s challenge to Rainey’s candidacy went before the Indiana Election Commission, which upheld the challenge. Rainey responding by seeking judicial review.

Rainey also sought a preliminary injunction, given that she filed for judicial review in March and the primary was scheduled for May.

On March 31, the trial court denied preliminary relief.

“At that point, Rainey did not pursue an interlocutory appeal,” Kenworthy wrote. “Put differently, she did not immediately seek an appellate decision about granting preliminary relief. Because of the status quo, Rainey did not appear on the primary ballot.”

The case continued post-primary, with Rainey arguing that the commission made a mistake in upholding Holtz’s challenge and deprived her of due process, and that I.C. 3-8-2-7(a)(4) violated the state and federal constitutions. The trial court ultimately denied Rainey relief.

Rainey then filed her instant appeal, which was dismissed as moot.

“Was Rainey required to pursue an interlocutory appeal? No,” Kenworthy wrote. “… May Rainey appeal now? Absolutely. … Yet by waiting for the election to pass, Rainey changed the nature of her case.

“That is, before the election, it was possible for Rainey to appear on the ballot,” Kenworthy continued. “But after the election, no court could turn back the clock. Therefore, regardless of the outcome — indeed, even if Rainey had prevailed — a judicial opinion would not change the legal relationship between Rainey and the defendants (Holtz and the Commission). There was no longer a concrete controversy between them.”

The appellate court then declined to issue an advisory opinion under the public-interest exception to mootness, noting the unique facts of Rainey’s case are not likely to recur.

“That said, the public would benefit from an advisory opinion in many kinds of cases,” Kenworthy wrote. “Even so, we must remain mindful of the judicial function, respecting constitutional boundaries calling for restraint.

“Finally, and even more to the point, we cannot ignore that Rainey could have appealed before the election,” the appellate court concluded. “Indeed, she had the chance for a timely and effective judicial opinion.”


April 12

Evansville Automotive, LLC, d/b/a Kenny Kent Toyota v. Samantha M. Labno-Fritchley, individually; as next friend of Penelope Rose Fritchley, a minor; and as personal representative of the estate of John Henry Fritchley II, deceased


COA reverses, remands summary judgment denial after explosion death

An Evansville car dealer is entitled to summary judgment in an accidental death case in which a man’s widow claimed negligence, the Court of Appeals of Indiana ruled in reversing and remanding the denial of summary judgment.

The case involves John Fritchley II, a Boonville resident who attempted to remove the top of an empty 55-gallon metal drum with a cutting torch in February 2018. The torch exploded, blowing the top off the drum and killing Fritchley instantly, according to court records.

The top of the drum — at which Fritchley would have had to looked as he cut — bore a warning label, which included a red pictogram of a flame with the words, “FLAMMABLE LIQUID” and, “Do not flame cut, braze or weld empty container.”

The drum had initially been in the possession of Superior Solvents and Chemicals Inc., which filled it with a flammable brake-cleaning solution. The drum then went to Busler Enterprises Inc., then Kenny Kent Toyota, who allowed a man named Paul Rhoades to collect empty drums, apparently for resale.

In December of 2018, Samantha M. Labno-Fritchley, John’s widow, filed suit against Superior Oil, Busler and Kenny Kent Toyota on her behalf, as next friend of her and John’s daughter and as personal representative of John’s estate. The suit included allegations of negligence, violations of the Indiana Products Liability Act, negligent infliction of emotional distress and wrongful death.

Kenny Kent moved for summary judgment, which the Vanderburgh Circuit Court denied in April 2022.

The Court of Appeals reversed that denial, remanding for summary judgment to be entered in Kenny Kent’s favor.

In its opinion, the appellate court ruled that the designated evidence allowed only one conclusion: that John Fritchley was more than 50% at fault for the explosion as a matter of law.

“Because Samantha cannot show that Kenny Kent is at least 50 percent at fault, she cannot recover, and Kenny Kent is therefore entitled to summary judgment on Samantha’s negligence claim,” the opinion reads.

Labno-Fritchley also argued that Kenny Kent did not have to actually sell drums in order to be subject to the Indiana Products Liability Act, and that Kenny Kent was a “distributor” pursuant to the federal Occupational Safety and Health Act.

But the court determined that even if it agreed with Labno-Fritchley, her arguments do nothing to establish that Kenny Kent is in the business of selling drums.

“The designated evidence, i.e., evidence that Kenny Kent occasionally gave empty drums to Rhoades and that the drums were nothing more than ‘a waste product’ to be discarded, without more, falls short of establishing that it was ‘engaged in the business’ of selling them,” the COA held.

Judge Cale Bradford wrote the opinion for the appellate court, with Judge Melissa May and Judge Paul Mathias concurring.

The case is Evansville Automotive, LLC, d/b/a Kenny Kent Toyota v. Samantha M. Labno-Fritchley, individually; as next friend of Penelope Rose Fritchley, a minor; and as personal representative of the estate of John Henry Fritchley II, deceased, 22A-CT-1601.


April 14

Tiffance Fields v. Constance Gaw


COA affirms summary judgment, rules for landlord in dog bite case

A landlord whose tenant’s pit bulls bit a mail carrier isn’t liable for damages, the Court of Appeals of Indiana ruled in affirming a trial court’s summary judgment ruling.

Tiffance Fields, a Hammond United States Postal Service mail carrier, had filed a complaint for damages in Lake Superior Court after being attacked by two pit bulls on June 1, 2019.

Fields sued the dogs’ owners for damages and included Constance Gaw, the landlord of the dog owners, in the complaint, claiming she also qualified as an owner under the state’s Dog Bite Statute.

The trial court granted summary judgment in Gaw’s favor, ruling that the landlord owed no common duty of care to Fields and that the dog bite statute didn’t apply to Gaw.

Fields appealed, but the appellate court affirmed, finding no genuine issue of material fact existed to preclude summary judgment.

Gaw’s summary judgment motion argued that her tenants owned the dogs, she wasn’t present on the day of the attack and she didn’t own any dogs located at or near the rental property.

Fields argued that by permitting her tenants to have two dogs at the property, Gaw qualified as an “owner” under the Dog Bite Statute.

The appellate court found that the word “harbors” in the statute was clear and had a specific meaning when it came to dog ownership.

“We conclude that it is a person who directly lodges, shelters, or gives refuge to a dog who is harboring a dog, as opposed to a person who merely owns and rents out the place where the dog is lodged, sheltered, or provided refuge,” Judge Patricia Riley wrote for the appellate court.

Riley said the court’s reading of the state’s statute found nothing that showed the Legislature wanted to expand it to include individuals responsible for dog bites as Fields claimed in her damages complaint.

The judge said there was no evidence that Gaw had any interaction with the pit bulls or personally afforded them lodging, shelter of refuge.

Chief Judge Robert Altice and Judge Rudolph Pyle III concurred.

The case is Tiffance Fields v. Constance Gaw, 22A-CT-2687.


Bradley Cooley v. Shelly Cooley


In 1st impression case, COA reverses life insurance subsidization as part of equalization payment

Addressing an issue of first impression, the Court of Appeals of Indiana has reversed an order for a man to subsidize his ex-wife’s life insurance premiums as part of an equalization payment, finding that order violated state statute.

The case of Bradley Cooley v. Shelly Cooley, 22A-DN-1202, began in August 2021, when Shelly Cooley filed for divorce from her now-ex-husband, Bradley.

When the Morgan Superior Court issued its final dissolution decree, the couple’s marital estate was valued at $1.26 million and was divided equally.

Also as part of the dissolution decree, Bradley was awarded his pension but was ordered to make an equalization payment to Shelly of $475,043.29.

However, Bradley doesn’t have sufficient liquid assets to make that payment, and he testified that it was “possible” he would ignore an order to pay Shelly one half of his future retirement benefits to satisfy the payment.

Instead, the trial court ordered Bradley to make payments to Shelly over time. Part of that payment plan included ordering Bradley to obtain a $475,000 life insurance policy that named Shelly as the owner and beneficiary. Shelly would pay the premiums, but those payments would be added to the equalization payment, meaning Bradley would essentially subsidize the premiums.

Bradley challenged the life insurance order on appeal, and in an issue of first impression, the Court of Appeals agreed with his challenge and reversed.

“Here, the trial court’s decree increases the amount of the equalization payment to Wife with every premium payment and thus, in effect, increases the value of the marital estate and the share of the marital estate awarded to Wife beyond the date of the parties’ final separation,” Judge Paul Mathias wrote. “Accordingly, we hold that portion of the decree violates Indiana Code section 31-15-7-4, and we reverse that part of the decree with respect to payment of the life insurance premiums.”

The COA remanded for the trial court to determine, “either by agreement of the parties or by way of submissions or another hearing, the cost of the life insurance premiums in light of Husband’s life expectancy.

“With those factors determined, the trial court shall include the total projected cost of the life insurance policy in the marital estate as security for the marital asset of Husband’s pension and recalculate the equalization payment to Wife so that Wife and Husband share the cost of this security equally.”

Bradley also argued the trial court abused its discretion by failing to consider the tax consequences he would incur when he starts to draw on his pension and pay half of the benefits to Shelly. But the appellate court agreed with Shelly that Bradley had invited any error.

“… (H)usband did not present evidence and can only speculate as to the amount he will owe in taxes on those benefits,” Mathias wrote, citing Hardin v. Hardin, 964 N.E.2d 247, 254 (Ind. Ct. App. 2012). “Accordingly, Husband has not preserved this issue for our review.”


April 19

Thomas Charles Bookwalter v. Indiana Election Commission, Gregory L. Irby, and Cody Eckert


Would-be Republican candidate in 2022 primary failed to preserve suit for review, COA rules

A would-be Republican candidate in the May 2022 primary failed to preserve his lawsuit for appellate review, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision. The Court of Appeals also ruled other claims were moot.

Thomas Bookwalter submitted a declaration of candidacy to the Indiana Election Division on Jan. 6, 2022. He was seeking placement on the Republican Party’s primary ballot for the U.S. House of Representatives.

About a month later, two people filed a challenge to Bookwalter’s candidacy with the Indiana Election Commission, alleging Bookwalter’s filing was incomplete and that he didn’t vote in two Republican primaries. Pursuant to Indiana Code § 3-8-2-7, a candidate can show their affiliation with a political party by voting for that party in the two most recent primary elections in which they voted, or they can obtain certification of affiliation from the party’s county chairperson.

The commission conducted a hearing on Feb. 18, 2022, when Bookwalter testified that he had not voted in the 2020 Republican primary because the candidates were unopposed. He also said the county chair “refused to certify that I’m a party member despite my having provided her with an affidavit detailing my lifelong support for the party and of living its best core values.”

Bookwalter argued the statute governing party affiliation is unconstitutional and asked the commission to not enforce it, but the commission voted unanimously to uphold the challenges to his candidacy.

Bookwalter petitioned for judicial review with the Marion Superior Court 24 days after the commission’s decision. He filed a complaint for declaratory and injunctive relief and petitioned for an emergency stay.

His petition asked the trial court to reverse the commission’s decision and restore his name to the ballot, arguing the statute violated his right to freedom of association under the Fifth and 14th amendments. Bookwalter also argued the statute is vague and overbroad, and that it is an invalid ex post facto law as applied to him.

The trial court denied the petition for stay on April 1, 2022, observing that the day Bookwalter filed his petition for judicial review was the deadline for counties to receive delivery of printed absentee ballots.

On April 27, 2022, Bookwalter filed a motion to certify the trial court’s denial of his petition for interlocutory appeal. The primary election was held May 3.

The commission moved to dismiss on May 11, arguing Bookwalter didn’t file the agency record as required by the Administrative Orders and Procedures Act and that because the primary election was over, his complaint for declaratory and injunctive relief was moot.

Following a hearing, the trial court declined to certify the denial of Bookwalter’s petition for a stay for interlocutory appeal.

The trial court granted the commission’s motion to dismiss in August, determining Bookwalter had not timely filed the official certified agency record, thereby mandating dismissal of his AOPA complaint. The trial court also concluded Bookwalter’s complaint for declaratory and injunctive relief was moot.

Bookwalter appealed, arguing the trial court erred in dismissing his AOPA suit on the grounds that he did not file the agency record on time, his claims for declaratory and injunctive relief on the grounds that they are moot, and his constitutional challenges to the statute on the grounds that they lack merit.

The Court of Appeals disagreed.

In its opinion, the court noted Bookwalter had 30 days after he filed his petition on March 14, 2022, to file the agency record or request an extension.

“It is undisputed that Bookwalter did not file the agency record by the April 13, 2022, deadline or at any time thereafter,” the opinion states.

Bookwalter pointed to Indiana Supreme Court precedent including Teaching Our Posterity Success, Inc. v. Ind. Dept. of Educ. and State Bd. of Educ. (TOPS), 20 N.E.3d 149 (Ind. 2014), to argue dismissing a petition for judicial review for failure to file the agency record is not appropriate when the facts are undisputed. But the Court of Appeals said it didn’t need to determine whether TOPS allows for what Bookwalter referred to as a “Meyer exception” to the filing rule because the facts of that case were “easily distinguished.”

“The Meyer exception — even if we assume that TOPS recognizes one — only seems to apply when a factual issue is dispositive of the case and the respondent on judicial review concedes its error,” the opinion states, referencing Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010). “Neither of those circumstances are present here.”

Bookwalter also argued the public-interest exception to the mootness doctrine renders his appeal justiciable, an acknowledgement the court said both sides recognize. The commission argued, however, that the additional element of the issue evading review must also be present.

But the Court of Appeals ruled it didn’t need to address the question of whether the issue evades review because it concluded Bookwalter failed to establish either that the issues in the case are of great public interest or likely to recur.

Bookwalter maintained the issue is likely to recur — including to himself — because most Hoosiers don’t vote in primaries. But the court ruled Bookwalter argued the issue “could” recur.

“Moreover, we cannot ignore the fact that Bookwalter chose to wait over three weeks to petition for judicial review following the Commission’s ruling,” the opinion states.

The court continued, “Bookwalter could have petitioned for judicial review the day after the Commission’s ruling, or soon thereafter, but chose to wait twenty-four days, until the very day absentee ballots were required by law to be delivered to counties.”

Judge Cale Bradford wrote the opinion.

The case is Thomas Charles Bookwalter v. Indiana Election Commission, Gregory L. Irby, and Cody Eckert, 22A-PL-1981.•

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