                                                                                FILED
                                                                            Oct 18 2018, 8:35 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Joel M. Schumm                                             Bryan H. Babb
      Indianapolis, Indiana                                      Sarah Thompson Parks
                                                                 Bose McKinney & Evans LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Civil                                 October 18, 2018
      Commitment of:                                             Court of Appeals Case No.
                                                                 18A-MH-152
      L.J.,
                                                                 Appeal from the Marion Superior
      Appellant-Respondent,                                      Court
              v.                                                 The Honorable Steven R.
                                                                 Eichholtz, Judge
      Health and Hospital Corp. d/b/a                            The Honorable Kelly Scanlan,
      Eskenazi Health CMHC,                                      Commissioner

      Appellee-Petitioner                                        Trial Court Cause No.
                                                                 49D08-1712-MH-47185



      May, Judge.


[1]   L.J. appeals an order of regular commitment signed only by the commissioner

      who held the hearing on the commitment petition. L.J. argues the order is

      invalid because the trial court judge failed to “enter the final order” as is

      required by Indiana Code section 33-23-5-9(a).

      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018                           Page 1 of 9
[2]   Rather than sign the commitment order, the trial court judge signed an order

      under a separate cause number that purported to approve all decisions entered

      by commissioners and magistrates during the week L.J.’s commitment hearing

      was held. That separate order contained no reference to L.J.’s civil

      commitment. Nor does the Chronological Case Summary (“CCS”) for L.J.’s

      civil commitment contain any reference to the judge’s entry of the business

      record order purporting to approve the commissioner’s actions during the week

      of L.J.’s commitment.


[3]   Under these facts, we hold the trial court judge’s order was ineffective to

      demonstrate the sitting judge considered the merits of L.J.’s case and entered

      the final order as required by statute. As there is no final order from which L.J.

      could appeal, we dismiss this appeal. On remand the trial court judge should

      review whether the evidence in the record supports the commissioner’s

      determination and enter a final order as to L.J.’s civil commitment.



                             Facts and Procedural History
[4]   On December 27, 2017, under cause number 49D08-1712-MH-047185, Health

      and Hospital Corporation, d/b/a Eskenazi Health Midtown Community

      Mental Health (hereinafter “Eskenazi”), filed an application for emergency

      detention of L.J. based on alleged mental illness. The next day, Eskenazi filed

      a report that included a doctor’s statement regarding L.J.’s condition, diagnosis,

      and recommended treatment. On January 2, 2018, the judge reviewed the



      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018       Page 2 of 9
      filings, found probable cause to continue L.J.’s detention, and set an evidentiary

      hearing for two days later.


[5]   On January 4, 2018, the commissioner held the hearing on the petition for

      regular commitment of L.J. At the conclusion of that hearing, the

      commissioner concluded L.J. should be involuntarily committed based on her

      findings L.J. was “gravely disabled” and “dangerous to others.” (App. Vol. 2 at

      6.) The commissioner signed and dated an order of regular commitment that

      same day. The line on which the commissioner signed indicated the order was

      to have been signed by the judge, (id. at 7), but the judge’s signature does not

      appear on that document. The CCS indicates the commissioner’s entry of that

      order and her submission of that order to NICS, 1 but nothing in the record

      indicates the commissioner was appointed special judge or judge pro tem for this

      case. There were no further CCS entries indicating the judge reviewed the case

      or entered a separate final order. 2



                                     Discussion and Decision



      1
       NICS is the “National Instant Criminal Background Check System,” which is maintained by the FBI.
      https://www.fbi.gov/services/cjis/nics (last visited October 2, 2018).
      2
          The CCS contains an additional entry on January 4, 2018, that in its entirety provides:

                 Mentally Ill and Dangerous or Gravely Disabled (Judicial Officer: Eichholtz, Steven R)[.]
      (App. Vol. 2 at 11) (formatting in original). Neither party addresses this entry in its brief. As the vague
      nature of that entry leaves us uncertain its meaning, and as neither party has so asserted, we decline to infer
      therefrom that the judge reviewed and confirmed the commissioner’s decision as the court’s final order.

      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018                                  Page 3 of 9
[6]   L.J. appeals the validity of the order committing her to Eskenazi because it was

      signed by the commissioner but not by the judge. Commissioners can be

      appointed to assist with the Probate Court’s caseload:


              An appointed probate hearing judge or probate commissioner
              shall be vested by the judge of the probate division with suitable
              powers for the handling of all probate matters of the court,
              including the following:


                       (1) Fixing of all bonds.


                       (2) Auditing accounts of estates, guardianships, and trusts.


                       (3) Accepting reports, accounts, and settlements filed in
                       the court.


                       (4) Appointing personal representatives, guardians, and
                       trustees.


                       (5) Probating wills.


                       (6) Taking or hearing evidence on or concerning matters
                       described in this subsection or any other probate,
                       guardianship, or trust matters in litigation before the court.


                       (7) Enforcing court rules.


                       (8) Making reports to the court concerning the judge’s or
                       commissioner’s doings in the proceedings described in this
                       subsection, including reports concerning the
                       commissioner’s findings and conclusions regarding the
                       proceedings.

      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018               Page 4 of 9
               However, all matters handled by a hearing judge or
               commissioner under this subsection are under the final
               jurisdiction and decision of the judge of the probate division.


      Ind. Code § 33-33-49-16(a). As that statute indicates, a commissioner in

      probate court has the authority to hear evidence and report findings and

      conclusions, but the “final jurisdiction and decision” belong to the judge. Id.


[7]   Another subsection of that same statute provides:


              A master commissioner appointed by the court under this section
              has the powers and duties prescribed for a magistrate under IC
              33-23-5-5 through IC 33-23-5-9. A master commissioner shall
              report the findings in each of the matters before the master
              commissioner in writing to the judge or judges of the division to
              which the master commissioner is assigned or as designated by
              rules of the court.


      Ind. Code § 33-33-49-16(e). As to the power of magistrates, the Indiana Code

      in relevant part 3 provides:


              (a) Except as provided under subsection (b), a magistrate shall
              report findings in an evidentiary hearing, a trial, or a jury’s verdict to the
              court. The court shall enter the final order.




      3
        Indiana Code section 33-23-5-5 provides a list of eighteen activities a magistrate “may do,” such as compel
      the attendance of witnesses, administer oaths, punish contempt, enforce court rules, and conduct trials. That
      section does permit magistrates to enter final orders in some specified causes of action, none of which are
      relevant here. See I.C. § 33-23-5-5 (providing power to enter final order in some criminal, small claims, and
      protective order cases).

      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018                               Page 5 of 9
              (b) If a magistrate presides at a criminal trial or a guilty plea
              hearing, the magistrate may do the following:


                       (1) Enter a final order.


                       (2) Conduct a sentencing hearing.


                       (3) Impose a sentence on a person convicted of a criminal
                       offense.


      Ind. Code § 33-23-5-9 (emphasis added). Based thereon, our Indiana Supreme

      Court has stated:


              Magistrates may enter final orders in criminal cases, but
              otherwise may not enter a final appealable order unless sitting as
              a judge pro tempore or a special judge. Instead they may only
              report findings, while the court shall enter the final order.


      In re Adoption I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (internal citations and

      quotations omitted). Thus, a commissioner does not have the authority to enter

      a final order of regular commitment.


[8]   Eskenazi “does not dispute that under ordinary circumstances and with some

      exceptions, a magistrate judge on his or her own does not have the authority to

      issue a final appealable order.” (Br. of Appellee at 12) (formatting in original).

      Instead, Eskenazi asserts we should hold the trial court judge “sufficiently




      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018          Page 6 of 9
      indicated his approval of the Order” by entering an order under a separate

      cause number. 4 (Id.)


[9]   On January 10, 2018, under cause number 49D08-1708-CB-030844, the probate

      court judge signed an “APPROVAL ORDER FOR RECORD OF

      JUDGMENTS AND DAILY ORDERS.” (App. Vol. 2 at 8) (capitalization in

      original). That order provides:


                      The court being advised by the magistrate, commissioner
               and/or referee of this court approves the findings and
               recommendations of the magistrate, commissioner and/or
               referee and adopts the findings and recommendations as the
               order in all cases heard 1-2-2018 through 1-5-2018[.]


      (Id.) The “CB” in the cause number on that order indicates the case is a “Court

      Business record—i.e. court orders that refer to non-case matters such as the

      appointment of judge pro tem, drawing the jury, etc.” Ind. Administrative Rule

      8(B)(3). That business record order contains no reference to L.J.’s civil

      commitment such that we could confirm the sitting judge intended to affirm the

      commissioner’s decision as the final order. Nor does the CCS for L.J.’s

      involuntary commitment action contain an entry indicating the judge reviewed

      this case and then entered the affirmation of the commissioner’s work under




      4
        Eskenazi also asserts we should hold L.J. waived the opportunity to appeal the judge’s failure to enter the
      final order by not objecting at the hearing. However, the commissioner had authority to conduct the hearing
      and enter findings and conclusions. See Ind. Code § 33-33-49-16(a)(6) & (a)(8). Thus, an objection to the
      commissioner at the hearing would have been untimely. Furthermore, as this case involves the peculiar use
      of a court business record, which we disapprove, we choose to address this cause on the merits.

      Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018                               Page 7 of 9
       that business record cause number. For all these reasons, we reject the entry of

       a business record order as a method for meeting the statutory requirement that

       the court “enter the final order” in each trial conducted by a commissioner or

       magistrate. Ind. Code § 33-23-5-9(a).


[10]   The Indiana Legislature has made clear which decisions may be made by a

       commissioner or magistrate alone and which decisions by a commissioner or

       magistrate must be reviewed by a judge. Compare I.C. §§ 33-23-5-5 & 33-23-5-

       9(b) with I.C. §§ 33-33-49-16(a) & 33-23-5-9(a). The use of a business record

       order to summarily affirm multiple unspecified decisions by a commissioner in

       no way suggests the trial judge considered the merits of those decisions. In such

       a circumstance, we are left without any assurance that the court fulfilled its

       obligation to review and “enter the final order.” I.C. § 33-23-5-9(a). Because

       “[r]eview of final orders by the presiding judge is not a mere technicality[,]” In

       re Hawkins, 902 N.E.2d 231, 240 (Ind. 2009) (judge and commissioner

       sanctioned in disciplinary proceedings for “unlawful practice of permitting a

       commissioner to enter final PCR orders”), “[w]e trust the court will observe this

       necessity” in all future cases. I.B., 32 N.E.3d at 1173 n.6 (demanding trial court

       observe necessity of court entering final order on remand).



                                                Conclusion
[11]   Because we reject the trial court’s entry of a business record order with no

       reference to specific case numbers as a method for adopting the findings and

       conclusions of a magistrate or commissioner as to any specific case heard

       Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018        Page 8 of 9
       during a specified time period, the commitment order challenged by L.J. is not

       a final order. Accordingly, we dismiss this appeal and remand for the probate

       court judge to review the matter and enter a final order.


[12]   Dismissed and remanded.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MH-152 | October 18, 2018    Page 9 of 9
