                                                                                   FILED
                                                                               Apr 27 2016, 8:05 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Kevin W. Betz                                              Gregory F. Zoeller
Courtney E. Endwright                                      Attorney General of Indiana
Betz + Blevins                                             Frances Barrow
Indianapolis, Indiana                                      Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Molly A. Melton,                                           April 27, 2016
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A05-1508-CT-1123
        v.                                                 Appeal from the Marion Superior
                                                           Court
Indiana Athletic Trainers Board,                           The Honorable Gary L. Miller,
David Craig, A.T., in his official                         Judge
and individual capacity, Larry                             Trial Court Cause No.
Leverenz, A.T., in his official                            49D03-1403-CT-6878
and individual capacity, Scott
Lawrance, A.T. in his official
and individual capacity, Jennifer
Vansickle, in her official and
individual capacity, John Miller,
M.D., in his official and
individual capacity, and John
Knote, M.D., in his official and
individual capacity, and the
Indiana Professional Licensing
Agency,


Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                  Page 1 of 19
      Appellees-Defendants.




      Brown, Judge.


[1]   Molly A. Melton appeals orders of the trial court granting a motion to dismiss

      and a motion for judgment on the pleadings in favor of the Indiana Athletic

      Trainers Board (the “Board”), David Craig, A.T., Larry Leverenz, A.T., Scott

      Lawrance, A.T., Jennifer VanSickle, John Miller, M.D., John Knote, M.D.,

      each in their individual and official capacities, and the Indiana Professional

      Licensing Agency (the “IPLA”, and collectively with the Board and the other

      named parties, the “Appellees”). The motion was filed following the Board’s

      decision finding Melton in default and ordering that her Indiana athletic

      training license be indefinitely suspended for a period of at least seven years.

      Melton raises a number of issues, one of which we find dispositive and revise

      and restate as whether the court erred in dismissing Melton’s complaint filed

      under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We reverse and

      remand.


                                        Facts and Procedural History

[2]   On August 2, 2012, Melton was hired by IU Health Paoli Hospital’s Rehab and

      Sports Medicine Department as an athletic trainer. A few months later, she

      began a consensual sexual relationship with a patient, who was a nineteen-year-




      Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 2 of 19
      old adult male high school student.1 On May 10, 2013, the State, through the

      Indiana Professional Licensing Agency (“IPLA”), filed an administrative

      complaint before the Board against Melton alleging that she “engaged in a

      course of lewd or immoral conduct in connection with delivery of services to

      the public” and “engaged in sexual contact with an athlete in her care” in

      violation of Ind. Code § 25-1-9-4(a)(5) and -4(a)(11). Appellant’s Appendix at

      15. The allegations recited in the complaint caused Melton “a great deal of

      embarrassment and humiliation . . . .” Id.


[3]   On September 17, 2013, the Board held a hearing on the matter, in which

      Melton received proper notice of the hearing. Due to the embarrassment she

      felt regarding the allegations, as well as the Deputy Attorney General’s

      intention to display nude photographs she had exchanged with the student, she

      chose to send her attorney to appear on her behalf at the hearing and admit to

      the factual basis but not to admit to sanctions. The Board deemed the

      appearance by only Melton’s counsel to be insufficient, and it issued a Notice of

      Proposed Default.


[4]   On September 27, 2013, Melton filed a motion responding to and opposing the

      Notice of Proposed Default, in which she noted her reason for not appearing in

      person, including “the direct embarrassment or direct humiliation that would

      have been caused by such a hearing, particularly as Ms. Melton did not oppose



      1
       In her brief Melton asserts that she was twenty-three years old at the time she was hired. Appellant’s Brief
      at 6. However, the record does not contain a statement relating to her age.

      Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                         Page 3 of 19
      the facts underlying this Complaint but only disputed the proposed punishment,

      admissions, and sanctions sought by the Board.” Id. at 16. On November 20,

      2013, Deputy Attorney General Amanda Elizondo (“DAG Elizondo”) sent

      Melton’s counsel an email “stating that a hearing would ‘probably’ be going

      forward,” and then on January 16, 2014, DAG Elizondo emailed Melton’s

      counsel “that the hearing was ‘set for Tuesday.’” Id. at 16. The next day,

      Crystal Heard of the IPLA sent an email “which simply stated that ‘[t]he

      Default is on the agenda for January 21, 2014 at 10am.’” Id. Neither Melton

      nor her counsel received notice from the Board of a hearing.


[5]   On the morning of January 21, 2014, the Board held the hearing and, on

      February 3, 2014, issued its Order stating that it had considered Melton’s

      motion opposing the proposed default and that it found Melton in default by a

      vote of 5-0. Also by a vote of 5-0, the Board concluded that Melton violated

      Ind. Code § 25-1-9-4(a)(5), -4(a)(11), and it ordered that she be placed on

      indefinite suspension for at least seven years and that prior to petitioning for

      reinstatement she provide the Board proof of successful completion of a course

      related to ethical boundaries in a patient-practitioner relationship.


[6]   On March 6, 2014, Melton filed her Verified Complaint and Petition for

      Review of Administrative Ruling (the “Complaint”) in which she brought, in

      Count I, an action under 42 U.S.C. § 1983 that the Board’s Order violated her

      federal constitutional rights, and, in Count II, she petitioned for review of the

      Board’s Order under the Indiana Administrative Orders and Procedures Act

      (the “AOPA”). On April 28, 2014, the Appellees filed their Answer to

      Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 4 of 19
      Complaint and Statement of Affirmative Defenses. That same day, the

      Appellees filed a Motion to Dismiss Petitioner’s Verified Petition for Judicial

      Review of the January 21, 2014 Order Entered by the Board, seeking to dismiss

      Count II, because Melton “failed to file the agency record by April 7, 2014,”

      which was thirty-two days after Melton filed her Complaint. Id. at 41. On July

      1, 2014, the court held a hearing on the Appellees’ motion and continued the

      hearing by agreement of the parties until after the Indiana Supreme Court ruled

      on “the issue of what needs to be filed in terms of the Agency record.” July 1,

      2014 Transcript at 2.


[7]   On February 11, 2015, the Appellees filed their Renewed Motion to Dismiss

      Petition for Review seeking dismissal of Melton’s petition for administrative

      review “[n]ow that the Supreme Court has decided unequivocally that a case

      must be dismissed when a party fails to file the agency record . . . .”2

      Appellant’s Appendix at 80-81. That same day, the court granted the

      Appellees’ motion with respect to Count II and “ordered that Ms. Melton’s

      petition for judicial review is hereby DISMISSED.” Id. at 9.


[8]   On April 10, 2015, the Appellees filed their motion for judgment on the

      pleadings (the “12(C) Motion”) seeking dismissal of Melton’s § 1983 claim. On

      April 28, 2015, Melton filed her response in opposition to defendants’ motion




      2
       On November 13, 2014, the Indiana Supreme Court handed down Teaching Our Posterity Success, Inc. v. Ind.
      Dep’t of Educ., 20 N.E.3d 149 (Ind. 2014), as well as First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind.
      2014), amended on reh’g by, 27 N.E.3d 768 (Ind. 2015) which addressed issues relating to the filing of an
      agency record on petitions for judicial review.

      Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                           Page 5 of 19
      for judgment on the pleadings, and on May 4, 2015, she requested a hearing.

      On May 12, 2015, the court rejected Melton’s request for a hearing, in which

      the court wrote: “case was dismissed 2/2015.”3 Id. at 170. On June 4, 2015,

      Melton filed her Motion for Reconsideration and/or Motion to Clarify Court’s

      Order on Plaintiff’s Motion for Hearing on Defendants’ Motion for Judgment

      on the Pleadings (the “Motion to Reconsider”) which stated that the court

      “[had] yet to substantively rule on Ms. Melton’s Section 1983 claim” and that

      the court’s “February 2015 Order dismissed only Ms. Melton’s petition for

      administrative review (not her Section 1983 claim).” Id. at 171. On June 8,

      2015, the court granted Melton’s Motion to Reconsider and set the matter for a

      hearing. On June 25, 2015, the court held a hearing, and on July 16, 2015, it

      entered a summary order granting the Appellees’ 12(C) Motion and dismissing

      her Section 1983 claim.


                                                    Discussion

[9]   The dispositive issue is whether the court erred in dismissing Melton’s

      complaint filed under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We

      review de novo a trial court’s ruling on a Rule 12(C) motion for judgment on the

      pleadings. Consol. Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192, 1196

      (Ind. Ct. App. 2013) (citing Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731




      3
       The May 12, 2015 Order consisted of what appears to be a proposed order granting Melton’s request for a
      hearing in which the court crossed out the word “GRANTING” in the title and wrote by hand: “Denied –
      case was dismissed 2/2015.” Appellant’s Appendix at 170.

      Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                     Page 6 of 19
       (Ind. 2010)), trans. denied. We accept as true the well-pleaded material facts

       alleged in the complaint, and base our ruling solely on the pleadings. Id. A

       Rule 12(C) motion for judgment on the pleadings is to be granted “only where

       it is clear from the face of the complaint that under no circumstances could

       relief be granted.” Id. (quoting Murray, 925 N.E.2d at 731 (quoting Forte v.

       Connerwood Healthcare, Inc., 745 N.E.2d 796, 801 (Ind. 2001) (quoting Culver-

       Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind. 1994)))).


[10]   When reviewing a Rule 12(C) motion, we may look only at the pleadings and

       any facts of which we may take judicial notice, with all well-pleaded material

       facts alleged in the complaint taken as admitted. Id. “The ‘pleadings’ consist of

       a complaint and an answer, a reply to any counterclaim, an answer to a cross-

       claim, a third-party complaint, and an answer to a third-party complaint.” Id.

       “Pleadings” also consist of any written instruments attached to a pleading,

       pursuant to Ind. Trial Rule 9.2. Id.; see also Ind. Trial Rule 10(C) (“A copy of

       any written instrument which is an exhibit to a pleading is a part thereof for all

       purposes.”).


[11]   Section 1983 provides:

               Every person who, under color of any statute, ordinance,
               regulation, custom, or usage, of any State or Territory or the
               District of Columbia, subjects, or causes to be subjected, any
               citizen of the United States or other person within the jurisdiction
               thereof to the deprivation of any rights, privileges, or immunities
               secured by the Constitution and laws, shall be liable to the party
               injured in an action at law, suit in equity, or other proper
               proceeding for redress . . . .

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 7 of 19
       42 U.S.C. § 1983.


[12]   Section 1983 creates no substantive right of its own, but acts only as a vehicle to

       afford litigants a civil remedy for deprivation of their federal rights. Myers v.

       Coats, 966 N.E.2d 652, 657 (Ind. Ct. App. 2012) (citing Albright v. Oliver, 510

       U.S. 266, 271, 114 S. Ct. 807 (1994), reh’g denied). To prevail on a Section 1983

       claim, “the plaintiff must show that (1) the defendant deprived the plaintiff of a

       right secured by the Constitution and laws of the United States, and (2) the

       defendant acted under the color of state law.” Id. (citing J.H. ex rel Higgin v.

       Johnson, 346 F.3d 788, 791 (7th Cir. 2003), reh’g and reh’g en banc denied, cert.

       denied, 541 U.S. 975, 124 S. Ct. 1891 (2004)).


[13]   The Fourteenth Amendment of the United States Constitution prohibits any

       state from depriving a person of life, liberty, or property without due process of

       law. Also, Article 1, Section 12 of the Indiana Constitution states that “[a]ll

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

       property, or reputation, shall have remedy by due course of law. Justice shall

       be administered freely, and without purchase; completely, and without denial;

       speedily, and without delay.” Indiana courts have consistently construed

       Article 1, Section 12, also known as the due course of law provision, as

       analogous to the federal due process clause. See, e.g., Doe v. O’Connor, 790

       N.E.2d 985, 988 (Ind. 2003); see also McIntosh v. Melroe Co., 729 N.E.2d 972, 976

       (Ind. 2000).




       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 8 of 19
[14]   “A due process claim requires the consideration of two factors: first, there must

       be the deprivation of a constitutionally protected property or liberty interest;

       and second, a determination of what procedural safeguards are then required.”

       Ross v. Ind. State Bd. of Nursing, 790 N.E.2d 110, 120 (Ind. Ct. App. 2003); see

       also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493

       (1985)) (“Once it is determined that the Due Process Clause applies, ‘the

       question remains what process is due.’”). “The United States Supreme Court

       has defined constitutionally protected ‘property’ in this context as ‘a legitimate

       claim of entitlement.’” Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind. Ct.

       App. 2006) (quoting Austin v. Vanderburgh Cnty. Sheriff Merit Comm’n, 761

       N.E.2d 875, 879 (Ind. Ct. App. 2002)). “The source of such entitlements is not

       to be found in the Constitution, but generally arises from a statute, ordinance,

       or contract.” Id. “When protected property interests are implicated, the right to

       some kind of prior hearing is paramount.” Charnas v. Estate of Loizos, 822

       N.E.2d 181, 185 (Ind. Ct. App. 2005) (citing Bd. of Regents of State Colleges v.

       Roth, 408 U.S. 564, 569-570, 92 S. Ct. 2701, 2705 (1972)). “In determining

       whether due process requirements apply, courts look not to the weight but to

       the nature of the interest at stake.” Id. (citing Roth, 408 U.S. at 571, 92 S. Ct. at

       2706). This court has recognized that a person has a property interest in a

       license for employment issued to that person. See Ross, 790 N.E.2d at 120-121

       (noting that “[w]hether one has a property interest in a license depends upon

       whether an individual has a legitimate claim of right to it, which in turn is

       dictated by the amount of discretion given to the licensing authority,” that

       “there is not a great deal of discretion in the granting of a license,” and that
       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 9 of 19
       “[a]ccordingly, Ross had a property interest in the nursing license issued to

       him”). We must therefore determine whether the amount of process Melton

       received is insufficient.


[15]   Following the September 17, 2013 hearing at which her counsel appeared but

       Melton did not personally appear, the Board entered a Notice of Proposed

       Default. At the time of the September 17, 2013 and January 21, 2014 hearings,

       the relevant statute governing default or dismissal under the AOPA provided:


               (a) At any stage of a proceeding, if a party fails to:


                        (1) file a responsive pleading required by statute or rule;


                        (2) attend or participate in a prehearing conference,
                        hearing, or other stage of the proceeding; or


                        (3) take action on a matter for a period of sixty (60) days,
                        if the party is responsible for taking the action;


               the administrative law judge may serve upon all parties written
               notice of a proposed default or dismissal order, including a
               statement of the grounds.


               (b) Within seven (7) days after service of a proposed default or
               dismissal order, the party against whom it was issued may file a
               written motion requesting that the proposed default order not be
               imposed and stating the grounds relied upon. During the time
               within which a party may file a written motion under this
               subsection, the administrative law judge may adjourn the
               proceedings or conduct them without the participation of the
               party against whom a proposed default order was issued, having

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016      Page 10 of 19
                due regard for the interest of justice and the orderly and prompt
                conduct of the proceedings.


                (c) If the party has failed to file a written motion under
                subsection (b), the administrative law judge shall issue the default
                or dismissal order. If the party has filed a written motion under
                subsection (b), the administrative law judge may either enter the
                order or refuse to enter the order.


                (d) After issuing a default order, the administrative law judge
                shall conduct any further proceedings necessary to complete the
                proceeding without the participation of the party in default and
                shall determine all issues in the adjudication, including those
                affecting the defaulting party. The administrative law judge may
                conduct proceedings in accordance with section 23 of this
                chapter to resolve any issue of fact.


       Ind. Code § 4-21.5-3-24 (West 2013) (subsequently amended by Pub. L. No. 72-

       2014, § 5 (eff. July 1, 2014)).4


[16]   Melton argues that in general a plaintiff can state a claim for deprivation of

       procedural due process “by ‘show[ing] that state procedures as written do not

       supply basic due process or that state officials acted in an [sic] “random and

       unauthorized” fashion in depriving the plaintiff of his protected interest.’”

       Appellant’s Brief at 20 (quoting Strasburger v. Bd. of Educ., 143 F.3d 351, 358

       (7th Cir. 1998), reh’g and suggestion for reh’g en banc denied, cert. denied, 525 U.S.




       4
         Subsection (a)(2) of this statute, regarding a party’s failure to attend or participate in a prehearing
       conference, hearing, or other stage of the proceeding, is found at subsection (a)(3) in the current version of
       the statute, after a new subsection (a)(1) was added to the statute effective July 1, 2014.

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                          Page 11 of 19
       1069, 119 S. Ct. 800 (1999)). She maintains she was wrongly held in default in

       that her counsel attended the September 17, 2013 hearing, which is sufficient in

       any other forum. She argues that it is not clear that only her counsel’s

       attendance at the September 17, 2013 hearing violated Ind. Code § 4-21.5-3-

       24(a)(2),5 especially where she was not contesting the factual allegations and

       was concerned only with the sanction, and that this error is compounded where

       Ind. Code § 4-21.5-5-4(b)(2) precludes her from seeking judicial review of the

       entry of default.


[17]   The Appellees argue that Melton received proper notice about the September

       17, 2013 hearing, she simply decided not to attend, the Board issued its Notice

       of Proposed Default Order on September 20, 2013, which complied with and

       satisfied Ind. Code § 4-21.5-3-24(a), and that she has not alleged facts regarding

       this failure to appear that would entitle her to relief under Section 1983. They

       argue that to the extent Melton filed a motion responding to and opposing the

       Notice of Proposed Default, the Board was not persuaded by her arguments

       and entered the default. They assert that the dictate of Ind. Code § 4-21.5-3-24

       that a board proceed without the participation of the party in default “makes

       sense” because it “ensures the prompt and efficient resolution of disputes,”

       noting that the statute also permits a party to explain a failure to appear and,

       here, the Board was unpersuaded by Melton’s reasons. Appellees’ Brief at 23.



       5
        Both briefs cite to the current version of the statute and particularly subparagraph Ind. Code § 4-21.5-3-
       24(a)(3), which is identical to Ind. Code § 4-21.5-3-24(a)(2) (West 2013) recited above. As we observed, the
       2013 version of Ind. Code § 4-21.5-3-24 applied to the relevant time period in question.

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                       Page 12 of 19
       They maintain that Melton has not explained how she could litigate the issue of

       sanctions without personally appearing before the Board and that the

       September 17, 2013 hearing “was her opportunity to provide her side of the

       story and present evidence of any mitigating circumstances.” Id. at 21.

       Melton’s response to this argument in her reply brief is that the Appellees do

       not explicitly argue that Ind. Code § 4-21.5-3-24(a)(2) required her presence at

       the hearing, and that she “could have (and did) oppose the ‘Board’s’ ‘sought’

       punishment through her attorney,” noting again that she did not contest the

       facts and that her attorney could have presented argument regarding other

       similar cases regarding punishment. Appellant’s Reply Brief at 10.


[18]   To the extent this question requires us to interpret Ind. Code § 4-21.5-3-24, we

       note that we review an issue of statutory interpretation de novo. Chrysler Grp.,

       LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind.

       2012). “Clear and unambiguous statutes leave no room for judicial

       construction.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009). But when

       a statute is susceptible to more than one interpretation it is deemed ambiguous

       and thus open to judicial construction. Id. If the statutory language is clear and

       unambiguous, we require only that the words and phrases it contains are given

       their plain, ordinary, and usual meanings to determine and implement the

       legislature’s intent. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind.

       2008), reh’g denied. If a statute is susceptible to multiple interpretations, we

       must try to ascertain the legislature’s intent and interpret the statute so as to

       effectuate that intent. Fight Against Brownsburg Annexation v. Town of Brownsburg,


       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 13 of 19
       32 N.E.3d 798, 806 (Ind. Ct. App. 2015). We presume the legislature intended

       logical application of the language used in the statute, so as to avoid unjust or

       absurd results. Hauck v. City of Indianapolis, 17 N.E.3d 1007, 1015 (Ind. Ct.

       App. 2014), trans. denied. A statute should be examined as a whole, avoiding

       excessive reliance upon a strict literal meaning or the selective reading of

       individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind. 2008).


[19]   We find that the Board’s decision to find Melton in default at the September 17,

       2013 hearing was error. Although Ind. Code § 4-21.5-3-24(a) of that statute

       states that “[a]t any stage of a proceeding, if a party fails to” do certain things

       including attend a hearing, reviewing similar language in subsections (b) and (c)

       demonstrates that the statute’s reference to “party” includes counsel. Ind. Code

       § 4-21.5-3-24(a) (emphasis added). Indeed, subsection (b) provides that

       “[w]ithin seven (7) days after service of a proposed default or dismissal order,

       the party against whom it was issued may file a written motion requesting that the

       proposed default order not be imposed,” and subsection (c) provides that “[i]f

       the party has failed to file a written motion under subsection (b), the

       administrative law judge shall issue the default or dismissal order” and “[i]f the

       party has filed a written motion under subsection (b), the administrative law

       judge may either enter the order or refuse to enter the order.” Ind. Code § 4-

       21.5-3-24(b), -24(c) (emphases added). Thus, construing the term “party” as

       contemplating only the petitioner is erroneous because, under such

       interpretation, it follows that in order for a party to comply with subsection (b)

       a party must personally file the motion opposing default, rather than counsel,


       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 14 of 19
       which we do not believe was the legislature’s intent. Indeed, we observe that an

       appearance by counsel at an administrative hearing has been sufficient under

       Indiana law for decades. See Foltz v. City of Indianapolis, 234 Ind. 656, 685, 130

       N.E.2d 650, 664 (Ind. 1955) (“If a party has been duly notified of a meeting for

       a hearing, and he fails to appear personally or by counsel, he waives any right to

       complain of the action taken, so long as it is within the authority of the

       administrative body holding the meeting.”) (emphasis added).


[20]   Also, Ind. Code § 4-21.5-3-24(a)(2) is not limited to participation in a hearing –

       a written notice of proposed default may also be served upon a “party” who

       does not participate in a prehearing conference. However, it is common for

       prehearing conferences under the AOPA to be conducted by counsel. See, e.g.,

       Galvan v. Alliance Ems/Transport Loving Care, Inc., Respondent, 2015 WL

       10381762, at *2 (Ind. Civ. Rts. Com. August 28, 2015) (noting in its findings of

       fact that “[t]he ALJ advised the parties in the Notice of Initial Pre-Hearing

       Conference, “CORPORATIONS [] must be represented by counsel pursuant to

       Indiana law . . . . A party who fails to attend or participate in a Pre-Hearing

       Conference, Hearing, or other later stage of the proceeding may be held in

       default or the matter may be dismissed”) (italics added); In the Matter of the

       Petition of the Town of Huntertown, Ind., 2014 WL 4748688, at *1 (Ind. U.R.C.

       September 14, 2014) (“Counsel for Huntertown, Fort Wayne, the Indiana

       Office of Utility Consumer Counselor (‘OUCC’), Twin Eagles and the Allen

       County Regional Water and Sewer District (‘District’) appeared and

       participated at the Prehearing Conference.”); In the Matter of: Comm’r, Ind. Dep’t

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 15 of 19
       of Env. Mgmt, Case No. 2010-19215-S v. Nicola Haddad, d/b/a Marathon Gas

       Station, Hobart, Lake Cnty., Ind., 2013 WL 9576700, at *2 (Ind. Off. Env. Adjud.

       November 14, 2013) (“Respondent Haddad’s legal counsel appeared at the

       September 19, 2011 Prehearing Conference, and represented that the Station

       had new ownership, but requested additional time to submit leak detection

       information to IDEM.”); In the Matter of: Arvina Joyce Carlson d/b/a State

       Bonding d/b/a State Bonding Cal., 2010 WL 3466023, at *1 (Ind. Div. Sec.

       August 18, 2010) (noting that both parties at telephonic prehearing conference

       were represented by counsel). Indeed, the Board in a past decision has

       contemplated that appearance by counsel was sufficient. See In the Matter of

       Kent Robert Lindsay, 2005 ATB 0001, at 1 (Ind. A.T.B. November 15, 2006)

       (“Respondent failed to appear in person or by counsel.”).


[21]   We find that the Board erred in entering its Notice of Proposed Default. 6 The

       question we must address is whether such entry denied Melton her due process

       rights. Due process is not a technical conception with a fixed content unrelated

       to time, place and circumstances. Wilson v. Bd. of Ind. Emp’t Sec. Div., 270 Ind.

       302, 309, 385 N.E.2d 438, 444 (1979) (citing Cafeteria Workers v. McElroy, 367

       U.S. 886, 895, 81 S. Ct. 1743, 1748 (1961), reh’g denied), cert. denied, 444 U.S.

       874, 100 S. Ct. 155 (1979). Rather, due process is a flexible concept which calls




       6
         Regarding the Appellees’ argument that Melton has not explained how she could litigate the issue of
       sanctions without personally appearing before the Board, we observe that, to the extent Melton’s testimony
       may have been required in order to address a particular argument regarding sanctions raised by Melton’s
       counsel at the hearing, the Board could have found that particular argument was waived due to her decision
       not to appear.

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016                     Page 16 of 19
       for such procedural protections as the particular situation demands. Id. (citing

       Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976)). The

       requirements of procedural due process apply only to the deprivation of

       interests encompassed by the Fourteenth Amendment’s protection of liberty

       and property. McKinney v. McKinney, 820 N.E.2d 682, 687 (Ind. Ct. App. 2005)

       (citing Roth, 408 U.S. at 569, 92 S. Ct. at 2705).


[22]   “Generally stated, due process requires notice, an opportunity to be heard, and

       an opportunity to confront witnesses.” Morton v. Ivacic, 898 N.E.2d 1196, 1199

       (Ind. 2008) (quoting Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842

       N.E.2d 885, 889 (Ind. Ct. App. 2006)). “The ‘opportunity to be heard’ is a

       fundamental requirement of due process.” Id. (quoting Mullane v. Cent. Hanover

       Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)); see also Mathews,

       424 U.S. at 333, 96 S. Ct. at 902 (“The fundamental requirement of due process

       is the opportunity to be heard at a meaningful time and in a meaningful

       manner.”) (internal quotations omitted). In order to determine the specific

       dictates of due process in a given situation, it is necessary to balance three

       distinct factors: (1) the private interest that will be affected by the official action;

       (2) the risk of an erroneous deprivation of such interest through the procedures

       used, along with the probable value, if any, of additional or substitute

       procedural safeguards; and (3) the government’s interest, including the function

       involved and the fiscal and administrative burdens that the additional or

       substitute procedural requirements would entail. Mitchell v. State, 659 N.E.2d

       112, 114 (Ind. 1995) (citing Wilson, 270 Ind. at 309, 385 N.E.2d at 444 (quoting

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016    Page 17 of 19
       Matthews, 424 U.S. at 335, 96 S. Ct. at 903)). As we review and balance these

       three interests first enunciated in Mathews v. Eldridge, we recognize that,

       “although due process is not dependent on the underlying facts of the particular

       case, it is nevertheless ‘flexible and calls for such procedural protections as the

       particular situation demands.’” Lawson v. Marion Cnty. Office of Family &

       Children, 835 N.E.2d 577, 580 (Ind. Ct. App. 2005) (quoting Thompson v. Clark

       Cnty. Div. of Family & Children, 791 N.E.2d 792, 795 (Ind. Ct. App. 2003), trans.

       denied).


[23]   The failure to properly follow statutory requirements can lead to a violation of a

       person’s procedural due process rights. See A.P. v. Porter Cnty. Office of Family

       and Children, 734 N.E.2d 1107, 1117 (Ind. Ct. App. 2000) (holding that the

       failure of the Porter County Office of Family and Children to comply with

       statutes relating to Child in Need of Services and termination proceedings

       deprived the parents of their due process rights), reh’g denied, trans. denied. In

       this case, the private interest affected by the official action, Melton’s athletic

       trainer’s license, is of paramount importance to Melton because it is required

       for her to pursue the work she had invested years preparing to perform.

       Conversely, there is no apparent governmental interest that would justify a

       disregard of procedures set forth by the legislature; rather, those procedures

       must be followed, especially when such an important private interest is at stake.

       Finally, the risk of an erroneous deprivation of Melton’s interest in her athletic

       trainer’s license through the Board’s decision to enter the Order of Proposed

       Default is great because she was not entitled to any further process following the

       Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016   Page 18 of 19
       entry. Also, under Ind. Code § 4-21.5-5-4(b)(2) a person who is in default under

       the AOPA has waived their right to seek judicial review.


[24]   The Board’s entry of the Notice of Proposed Default following the September

       17, 2013 hearing, in which Melton’s counsel appeared, deprived Melton of her

       opportunity to be heard “at a meaningful time and in a meaningful manner,”

       which is the fundamental requirement of due process. Mathews, 424 U.S. at

       333, 96 S. Ct. at 902. Under the circumstances, we must reverse the court’s

       grant of the Appellees’ 12(C) Motion dismissing Melton’s Section 1983 claim,

       remand with instructions to vacate the Board’s Order, and order the Board to

       provide Melton with an administrative hearing concerning the complaint filed

       against her Indiana athletic training license which comports with the dictates of

       due process.


                                                     Conclusion

[25]   For the foregoing reasons, we reverse the court’s grant of the Appellees’ 12(C)

       Motion dismissing Melton’s Section 1983 claim and remand with instructions

       consistent with this opinion.


[26]   Reversed and remanded.


       Kirsch, J., and Mathias, J., concur.




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