                                                                   FILED
                                                              Oct 25 2016, 5:54 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




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



                                            IN THE
    COURT OF APPEALS OF INDIANA

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




Riley, Judge.




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

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

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

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

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

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

      Rule 12(b)(6). 1


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


                                                     ISSUES

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


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

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

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

              mandate.


                            FACTS AND PROCEDURAL HISTORY

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

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

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



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

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

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

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

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

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

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

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

      only provide initial assessments, while others are permanency workers who

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

      smaller counties, one FCM may often perform both functions.


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

      department,” that:

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


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


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


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



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

      25-2-10, which clarifies:

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


              (b) The department of child services:


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


                       (A) fulfill the purpose of this article;


                       (B) comply with the maximum caseload ratios for:


                                (i)      Family case managers; and


                                (ii)     Child welfare caseworkers;


                                as set forth in [I.C. § ] 31-25-2-5.


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

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

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

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

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

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

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

      comply with the caseload standards mandated by Indiana law. Although

      additional money was appropriated to hire more FCMs during the 2015

      Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 4 of 25
      legislative session, insufficient money was made available to allow the

      mandated statutory caseload standards to be achieved.


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

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

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

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

      (Appellant’s App. p. 26).


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

      and Injunctive and Declaratory Relief, contending that DCS violated Indiana

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

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

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

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

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

      DCS.


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

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

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

      putative class cannot enforce the explicit caseload standards contained in the

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

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

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


      Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 5 of 25
[10]   On January 6, 2016, the trial court conducted a hearing on DCS’s motion for

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

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

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

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

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

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

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

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

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

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

       through the Civil Service Complaint procedure.


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


                                      DISCUSSION AND DECISION


                                               I. Standard of Review


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

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

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

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

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

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

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

       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 6 of 25
       circumstances under which a plaintiff would be entitled to relief.’” Id. (quoting

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

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

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

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

       occurred. Id.


                                            II. Private Cause of Action


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

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

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

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

       private cause of action because

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


       (Appellant’s Br. p. 22).


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

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

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

       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 7 of 25
       N.E.3d 119, 127 (Ind. Ct. App. 2015), trans. denied. To find the existence of a

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

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

       statutory scheme contains an enforcement mechanism or remedies for violation

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

       designed to protect the public in general and containing a comprehensive

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

       is a question of law for the court. Id.


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

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

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

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

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

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

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

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

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

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

       22). We disagree.


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

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

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

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

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

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

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

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

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

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

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

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


                                                    III. Mandate


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

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

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

       maintain the prescribed staffing levels.


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

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


               (1) act that the law specifically requires; or


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


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

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

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

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

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

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

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

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

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

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

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

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

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

       disturbed by the courts.” Id.


                                                    A. Standing


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

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

       seeking mandate must show actual injury by the challenged governmental

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

       App. 2010), trans denied.


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

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

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




       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 10 of 25
               The public standing doctrine, which applies in cases where public
               rather than private rights are at issue and in cases which involve
               the enforcement of a public rather than a private right, continues
               to be a viable exception to the general standing requirement. The
               public standing doctrine permits the asserting of all proper legal
               challenges, including claims that government action is
               unconstitutional.


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

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

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

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

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

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

       public right where allegedly unconstitutional statute sought to impose property

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

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

       County had a public interest in the constitutional apportionment of senators

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

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

       county auditor correctly discharging the duties of his office).


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

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

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

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

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

       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 11 of 25
       Accordingly—and the State does not contest—Price, as member of the general

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


                                            B. Exhaustion of Remedies


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

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

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

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

       meant to accomplish what cannot otherwise be accomplished through ordinary

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

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


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

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

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

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

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

       administrative proceedings and the effective application of judicial review, and

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

       a factual record as necessary for judicial review. Id.


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

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

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

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

       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 12 of 25
       Trades Council v. Warsaw Cmty. Sch. Corp., 493 N.E.2d 800, 806 (Ind. Ct. App.

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

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

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

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

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

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


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

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


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

       Because the trial court concluded that Price had not exhausted the

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

       trial court dismissed Price’s complaint.


       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 13 of 25
[26]   The Indiana Civil Service Complaint procedure, as defined in I.C. § 4-15-2.2-

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

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

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

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

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

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

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

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

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

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

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

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

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

       exhaustion of these administrative remedies, a judicial review may be

       requested. I.C. § 4-15-2.2-2(h).


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

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

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

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

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

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

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


       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016       Page 14 of 25
       matter before us concerns a systemic deficiency which is not unique to her but

       is experienced by hundreds of case workers in Indiana.


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

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

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

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

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

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

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

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

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

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

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

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

       systemic challenge brought by Price falls outside the boundaries of this

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

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

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

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

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




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

       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016                         Page 15 of 25
       important but instead challenges the agency’s policy, pattern, and practice or

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

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

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

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

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

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

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

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

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

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

       procedure addresses. Therefore, no adequate remedy is available.


                                         C. Clear Duty Imposed by Law


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

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

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

       separation of powers doctrine and dictate the performance of discretionary

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

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

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

       engage in specific discretionary acts. We disagree.




       Court of Appeals of Indiana | Opinion 49A05-1602-PL-380 | October 25, 2016   Page 16 of 25
[30]   The statutory caseload maximums included in I.C. § 31-25-2-5(a) & (b) are not

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

       declares, in pertinent part:


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


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


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


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


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

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

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

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

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

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

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

       Ct. App. 2012).




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

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

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

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

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

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

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

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

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

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

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

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

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


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

       imperative duty on DCS to comply with maximum caseload standards as

       determined by the legislature and no administrative remedy is available to




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

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

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

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

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


                                                CONCLUSION

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

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

       action for mandate.


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


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


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




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

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

                 v.

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




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


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

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

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

       result.


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

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

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

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

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

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

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

       upon that conclusion.


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

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

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

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

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

       remedy Price could obtain through the civil service complaint procedure would

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

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

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

       extent possible,”

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

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

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

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

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

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

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




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

       the cost of a child’s welfare.


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

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

       determined that the Civil Service Complaint procedure does not provide an

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

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

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

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

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

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

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

       (beginning at 26:10).


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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       asserting it.” Id. at 978.


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

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

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

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

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

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


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

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

       accordance with the statute.


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

       Price’s action was in error.




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

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

               v.

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




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


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

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

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

       had an adequate remedy under the Indiana Civil Service Complaint procedure

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

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




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