MEMORANDUM DECISION                                                      FILED
                                                                    Aug 16 2016, 8:36 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                         CLERK
this Memorandum Decision shall not be                                Indiana Supreme Court
                                                                        Court of Appeals
regarded as precedent or cited before any                                 and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Douglas M. Grimes                                        KAREN FREEMAN-WILSON
Douglas M. Grimes, PC                                    Jewell Harris, Jr.
Gary, Indiana                                            Nicholas A. Snow
                                                         Harris Law Firm, P.C.
                                                         Crown Point, Indiana
                                                         ATTORNEYS FOR
                                                         APPELLEE/INTERVENOR
                                                         ATTORNEY GENERAL OF INDIANA
                                                         Gregory F. Zoeller
                                                         Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sharon Mallory,                                          August 16, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         45A04-1510-MI-1883
        v.                                               Appeal from the
                                                         Lake Superior Court
Karen Freeman-Wilson, in her                             The Honorable
official capacity as Mayor of the                        John M. Sedia, Judge
City of Gary, Indiana,



Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016       Page 1 of 7
      Appellee-Defendant,                                      Trial Court Cause No.
                                                               45D01-1505-MI-16
      Attorney General of Indiana,
      Appellee/Intervenor.




      Kirsch, Judge.


[1]   Sharon Mallory (“Mallory”) appeals the trial court’s order affirming the

      decision of Karen Freeman-Wilson, in her capacity as Mayor of the City of

      Gary, Indiana (“Freeman-Wilson”), to remove Mallory from the Board of

      Commissioners of the Gary Sanitary District. Mallory raises several issues for

      our review, which we consolidate and restate as: whether the trial court erred

      in its determination that Mallory was properly removed as a commissioner of

      the Gary Sanitary District.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Richard Comer (“Comer”), President of the Board of Commissioners of the

      Gary Sanitary (“the Board”), filed with Freeman-Wilson “Verified Charges in

      Support of the Removal of a Sanitary District Commissioner,” which sought

      the removal of Mallory from her position as a member of the Board based on

      charges of neglect of duty. Appellant’s App. at 15-17. His actions were initiated

      Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016   Page 2 of 7
      under the authority of Indiana Code section 36-9-25-5, and subsection (a) of the

      statute states the requirements concerning the administrative hearings on the

      removal of commissioners. On October 17, 2014, a letter was sent via certified

      mail to Mallory, informing her of the charges and that a hearing on the charges

      would occur on October 28, 2014. Id. at 12-13. A certified mail receipt dated

      October 18, 2014 showed that Mallory received the letter. Id. at 14.


[4]   Mallory failed to attend the hearing on October 28. The hearing was held

      before Freeman-Wilson, in her capacity as the Municipal Executive of the City

      of Gary, and evidence was presented by Comer. On October 31, 2014,

      Freeman-Wilson issued an order, removing Mallory as a Gary Sanitary District

      Commissioner. Pursuant to Indiana Code section 36-9-25-5(b), Mallory could

      appeal the findings made by the municipal executive within ten days of the

      order. On November 10, 2014, Mallory filed a complaint with the Lake

      Superior Court, appealing the decision by Freeman-Wilson to remove her as a

      Commissioner.


[5]   Freeman-Wilson responded by filing a motion to dismiss Mallory’s complaint,

      arguing that Mallory failed to exhaust her administrative remedies. On January

      19, 2015, Mallory filed a “Motion for Order Finding Ind. Code § 36-9-25-5

      Unconstitutional.” Appellant’s App. at 49. The trial court conducted a hearing

      regarding the parties’ motions on September 23, 2015. On September 28, 2015,

      the trial court issued an order that affirmed the decision to remove Mallory

      from the Board and, as to any other issues, dismissed the complaint with

      prejudice. Id. at 9-11. Mallory now appeals.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016   Page 3 of 7
                                     Discussion and Decision
[6]   Mallory argues on appeal that the trial court erred in concluding that it lacked

      subject matter jurisdiction over the case due to her failure to exhaust

      administrative remedies. However, contrary to Mallory’s contention, the trial

      court did not dismiss her appeal of Freeman-Wilson’s decision due to lack of

      subject matter jurisdiction. Instead, the trial court affirmed Freeman-Wilson’s

      decision to remove Mallory from the Board.


[7]   Mallory was removed from the Board pursuant to Indiana Code section 36-9-

      25-5, which states:


              (a) A commissioner may not be removed from office except upon
              charges preferred before the municipal executive and a hearing
              held on them. The only permissible reasons for removal are
              neglect of duty and incompetence. The commissioner must be
              given at least ten (10) days’ notice of the time and place of the
              hearing and the opportunity to produce evidence and examine
              and cross-examine witnesses. All testimony shall be given under
              oath. The municipal executive shall put his findings in writing
              and file them with the municipal clerk.


              (b) If the charges are sustained and the commissioner removed,
              he may appeal the findings within ten (10) days after the date
              they are filed with the clerk to the circuit or superior court of the
              county in which the municipality is located. The commissioner
              shall file an original complaint against the executive, stating the
              charges preferred and the findings made. The court shall hear the
              appeal within thirty (30) days after it is filed without a jury and
              shall either ratify or reverse the finding of the executive. The
              judgment of the court is final and an appeal may not be taken.



      Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016   Page 4 of 7
[8]   Judicial review of an administrative determination is limited to determining

      whether the administration possessed jurisdiction of the subject matter, whether

      the administrative decision was made pursuant to proper procedures, was based

      upon substantial evidence, was not arbitrary or capricious, and was not in

      violation of any constitutional, statutory or legal principle. City of Kokomo v.

      Kern, 852 N.E.2d 623, 627 (Ind. Ct. App. 2006) (citing Rynerson v. City of

      Franklin, 669 N.E.2d 964, 971 (Ind. 1996)). The court reviewing an

      administrative determination may not determine questions of credibility or

      weigh conflicting evidence and choose that which it sees fit to rely upon in

      determining whether there was substantial evidence to support an

      administrative action. Id.


[9]   Here, the evidence showed that Mallory was provided with a copy of the

      charges against her and written notice of the date and time of the hearing,

      which provided her an opportunity to present evidence on her behalf and

      question the witnesses against her. Mallory failed to participate in the hearing

      despite evidence that she received the notice through certified mail. Appellant’s

      App. at 14. Therefore, the record of the hearing reviewed by the trial court

      consisted of the written charges against Mallory, the notice provided to

      Mallory, and the order by Freeman-Wilson removing Mallory from the Board.

      In its order affirming the decision by Freeman-Wilson, the trial court found that

      “the statute conferred jurisdiction upon Freeman-Wilson as municipal

      executive to hear the matter, the decision was made pursuant to proper

      procedure, was based upon substantial evidence, and was not arbitrary or


      Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016   Page 5 of 7
       capricious or in violation of any constitutional, statutory or legal principle.” Id.

       at 10.


[10]   Pursuant to Indiana Code section 36-9-25-5, the judgment of the trial court is

       final, and no appeal may be taken. Ind. Code § 36-9-25-5(b). However,

       Indiana Appellate Rule 5(A) states, “Except as provided in Rule 4, the Court of

       Appeals shall have jurisdiction in all appeals from Final Judgments of Circuit,

       Superior, Probate, and County Courts . . . .” This court has previously stated,

       “It is a fundamental rule of law in Indiana that in cases where procedural

       statutes conflict with procedural rules adopted by the Indiana Supreme Court,

       the procedural rules take precedence. In re J.H., 898 N.E.2d 1265, 1269 (Ind.

       Ct. App. 2009) (citing Bowyer v. Ind. Dep’t of Nat. Res., 798 N.E.2d 912, 916 (Ind.

       Ct. App. 2003)). Further, when there is a conflict between a statute and the

       Indiana rules of trial procedure, the rules of procedure will govern, and phrases

       in statutes contrary to the rules of procedure are considered a nullity. Id. at

       1270. We, therefore, find that we have jurisdiction to decide this appeal

       notwithstanding the language in Indiana Code section 36-9-25-5(b) to the

       contrary.1




       1
         Mallory argues that Indiana Code section 36-9-25-5 is facially unconstitutional because of the statement
       that no appeal may be taken from the judgment of the trial court. However, we decline to decide Mallory’s
       constitutional claim as we decide the case on the merits. “It is long established that ‘a constitutional question
       unnecessary to a determination of the merits should not be decided.’” Bureau of Motor Vehicles v. Scott, 497
       N.E.2d 557, 559 (Ind. 1986) (quoting Passwater v. Winn, 248 Ind. 404, 405, 229 N.E.2d 622, 623 (1967)).



       Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016               Page 6 of 7
[11]   Based on the record before us, we find nothing to contradict the trial court’s

       findings. As the mayor of Gary, Freeman-Wilson was the municipal executive

       of the Gary Sanitary District and had subject matter jurisdiction over the

       removal of Mallory from the Board. The evidence showed that the proper

       procedure was followed in that Mallory was given at least ten days’ notice of

       the hearing and the opportunity to present evidence and question the witnesses

       and Freeman-Wilson issued written findings in her decision to remove Mallory

       from the Board. Evidence was presented at the hearing to support the

       allegations of Mallory’s neglect of duty and incompetence pursuant to Indiana

       Code section 36-9-25-5; therefore, the decision to remove Mallory from the

       Board was based on substantial evidence, was not arbitrary and capricious, and

       was not in violation of any constitutional, statutory, or legal principle. The trial

       court did not err in affirming Freeman-Wilson’s decision to remove Mallory

       from the Board.


[12]   Affirmed.


[13]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016   Page 7 of 7
