                                                                              FILED
                                                                         Dec 08 2016, 9:56 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stacy L. Kelley                                           Anthony W. Overholt
      Glaser & Ebbs                                             Maggie L. Smith
      Indianapolis, Indiana                                     Frost Brown Todd LLC
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In Re The Expungement/                                    December 8, 2016
      Sealing of Records of H.M.,                               Court of Appeals Case No.
      Appellant-Defendant,                                      49A02-1604-MI-700
                                                                Appeal from the Marion Superior
              v.                                                Court
                                                                The Honorable Angela Davis,
      State of Indiana and Marion                               Judge
      County Sheriff,                                           Trial Court Cause No.
      Appellee-Plaintiff.                                       49G16-1307-MI-28470




      Bailey, Judge.



                                           Case Summary
[1]   H.M.’s criminal convictions were expunged in 2013. H.M. later applied with

      the Marion County Sheriff (“the Sheriff”) to serve as a volunteer deputy sheriff.

      After conducting a background check, the Sheriff declined H.M.’s application.

      Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016                  Page 1 of 14
      H.M. initiated contempt proceedings alleging discrimination prohibited under

      Indiana’s criminal history expungement statute.1 The contempt petition was

      dismissed upon the Sheriff’s motion. H.M. now appeals.


[2]   We reverse and remand.



                                                    Issues
[3]   H.M. designates two issues for our review:

                    I.     Whether the trial court erred when it denied H.M.’s
                           motion to strike the Sheriff’s motion to dismiss as
                           untimely; and


                   II.     Whether the trial court erred when it dismissed H.M.’s
                           contempt petition.


                                 Facts and Procedural History
[4]   Because of the procedural posture of this case, we take our statement of facts

      from H.M.’s petition and the parties’ related motions. On July 24, 2013, H.M.

      applied for expungement of his convictions and other criminal records in

      certain matters. The Marion Superior Court granted the expungment on

      October 4, 2013.




      1
          Ind. Code § 35-38-9-1 et seq.


      Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016    Page 2 of 14
[5]   On November 12, 2014, H.M. applied with the Sheriff for appointment as a

      volunteer sheriff’s deputy. Such deputies are often deputized as special deputy

      sheriffs under Indiana Code section 36-8-10-10.6.


[6]   As part of the review process, the Sheriff conducted a background check on

      H.M. After the background check, the Sheriff denied H.M.’s application in a

      letter that stated, in relevant part, “[t]he background phase is completed for the

      Reserve Deputy Sheriff position. We regret to inform you that you have not

      been selected for hire.” (App’x at 12.)


[7]   On December 3, 2015, H.M. filed a verified petition for contempt in the Marion

      Superior Court under the cause number for his expungement proceedings. The

      named party in the expungement proceedings was the State of Indiana, and a

      delay of approximately one month ensued during which the trial court

      identified the proper respondent for the contempt petition. Finally, on January

      7, 2016, the Sheriff entered an appearance by counsel.


[8]   On Febuary 3, 2016, a hearing was conducted, during which the Sheriff sought

      leave to file a brief with the trial court. The trial court granted the motion, and

      subsequently granted a request for an extension of time to file the brief. On

      February 17, 2016, the Sheriff filed a motion including legal argument that

      requested the dismissal of H.M.’s contempt petition.


[9]   On March 9, 2016, H.M. moved the trial court to strike the Sheriff’s motion,

      and separately filed his brief in opposition to the Sheriff’s motion to dismiss. A

      hearing was conducted that day, at the conclusion of which the trial court

      Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 3 of 14
       entered an order granting the Sheriff’s motion to dismiss the contempt petition

       and denying H.M.’s motion to strike.


[10]   This appeal ensued.



                                  Discussion and Decision
                                            Motion to Strike
[11]   We turn first to H.M.’s contention that the trial court erroneously denied his

       motion to strike the Sheriff’s motion to dismiss. We review motions to strike

       for an abuse of discretion, which occurs when the court’s decision is contrary to

       the facts and circumstances before it. Allstate Ins. Co v. Hatfield, 28 N.E.3d 248,

       248 (Ind. Ct. App. 2015).


[12]   H.M. contends that the Sheriff’s motion to dismiss should have been stricken

       because it was untimely filed, and directs us to the Indiana timeline rules for the

       filing of motions in response to pleadings. See Ind. Trial Rule 8(C) (setting forth

       the twenty-day period for timely response to a complaint). H.M. argues that his

       petition for contempt is, in essence, a pleading—namely, a complaint. And

       because the Sheriff’s motion to dismiss the petition came outside the twenty-day

       window of time set forth in Rule 8(C) for responses to a complaint, the

       argument goes, the trial court erred when it did not dismiss the Sheriff’s motion.

       H.M. would have us apply the rules for pleading to a motion seeking to enforce

       a judgment, and would have us very narrowly interpret the pleading rules to

       require that the Sheriff’s motion be stricken. For its part, the Sheriff suggests

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 4 of 14
       that strict application of those rules is unnecessary because its motion is not a

       pleading at all, and thus the pleading rules simply do not apply.


[13]   As this Court and our supreme court have noted, “the rules of trial procedure

       ‘are intended to standardize the practice within the court, facilitate the effective

       flow of information, and enable the court to rule on the merits of the case.’”

       Turner v. Franklin Cty. Four Wheelers Inc., 889 N.E.2d 903, 905 (Ind. Ct. App.

       2008) (quoting S.T. v. State, 764 N.E.2d 632, 635 (Ind. 2002)). All parties and

       the court are generally bound by the rules, but “a court should not adhere

       blindly to all of its rules.” Id. Thus, whether the petition for contempt is or is

       not a form of pleading, we would be remiss not to note that an extended period

       of time passed after the petition was filed, during which time it appears that the

       correct responsive party had not been properly identified or filed an appearance.

       During this period, it appears from the CCS that only on December 23, 2015—

       twenty days after the petition was filed—was the requirement for counsel for

       the Sheriff, rather than counsel for the State, established.


[14]   Moreover, we observe that “a court may at any time for cause shown ... upon

       motion made after the expiration of the specific period, permit the act to be

       done where failure to act was the result of excusable neglect.” T.R. 8(B).

       Under the circumstances, and in light of our courts’ policy favoring resolution

       of cases on their merits, Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d

       883, 886 (Ind. Ct. App. 2004), we think the trial court was within its discretion

       to grant an enlargement of time for the Sheriff to file a response to the petition

       for contempt.

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 5 of 14
[15]   H.M. also challenges the denial of his motion to strike on the basis that the

       Sheriff sought leave to file a brief and, instead, filed the motion to dismiss the

       petition for contempt. H.M.’s contention—that the Sheriff had not been

       granted leave to file a motion—is solely a question of terminology. We reject

       H.M.’s argument in this regard as an elevation of form over substance. See id.

       at 888. We accordingly find no abuse of discretion in the trial court’s denial of

       the motion to strike because the Sheriff filed a motion instead of a brief.


                                          Motion to Dismiss
[16]   We turn now to H.M.’s argument that the trial court erred when it dismissed

       the petition for contempt. The parties here differ as to how the order on the

       petition should be reviewed. H.M. contends that because the petition is

       analogous to a complaint, the trial court’s dismissal should be reviewed as an

       order dismissing a complaint for failure to state a claim under Trial Rule

       12(B)(6) that is subject to de novo review, with the facts in the petition for

       contempt deemed facially true, as if the petition were a complaint. See Bellows v.

       Board of Com’rs of Cty. of Elkhart, 926 N.E.2d 96, 111 (Ind. Ct. App. 2010)

       (setting forth the standard of review for an appeal from a dismissal for failure to

       state a claim). The Sheriff does not proffer a standard of review, but addresses

       the dismissal order as a question of statutory construction—that is, as a matter

       of law. See Suggs v. State, 51 N.E.3d 1190, 1194 (Ind. 2016) (setting forth the

       standard used by appellate courts when reviewing questions of statutory

       construction). The result under either approach is the same: a de novo review of

       the order of dismissal.

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 6 of 14
[17]   H.M.’s petition for contempt and his appeal rest on Indiana’s expungement

       statute. This statute has recently been the subject of substantial litigation and

       revision, but the interpretation of its anti-discrimination provisions in light of

       the authority of Indiana’s sheriffs to appoint special and volunteer deputies is a

       matter of first impression. The anti-discrimination provisions of the

       expungement statute state:


               It is unlawful for any person to:


               (1) suspend;


               (2) expel;


               (3) refuse to employ;


               (4) refuse to admit;


               (5) refuse to grant or renew a license, permit or certificate
               necessary to engage in any activity, occupation, or profession; or


               (6) otherwise discriminate against;


               any person because of a conviction or arrest record expunged or
               sealed under this chapter.


       I.C. § 35-38-9-10(b). With specific exceptions related to subsequent criminal

       conduct, “[a] person whose record is expunged shall be treated as if the person

       had never been convicted of the offense.” I.C. § 35-38-9-10(e). “Any person

       that discriminates against a person as described in subsection (b) commits a

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 7 of 14
       Class C infraction and may be held in contempt by the court issuing the order of

       expungement or by any other court of general jurisdiction. Any person may file

       a written motion of contempt,” and “the person is entitled to injunctive relief.”

       I.C. § 35-38-9-10(f). Separate from the anti-discrimination provisions, the

       expungement statute precludes the release of information in sealed or expunged

       records “to anyone without a court order, other than a law enforcement officer

       acting in the course of the officer’s official duty.” I.C. § 35-38-9-6(a).


[18]   The trial court here granted the Sheriff’s motion to dismiss H.M.’s petition, and

       further ruled that the Marion Superior Court was not the correct venue for the

       case, though each ruling was without legal analysis. The Sheriff’s motion to

       dismiss argued that the grant of broad discretion in the statutes concerning

       sheriffs’ powers to access protected information and create special deputy

       sheriffs precluded any possibility that the Sheriff or any of the Sheriff’s

       employees could be held liable under Indiana’s expungement laws. H.M.

       opposed that argument at the trial court and now before this Court, and the

       Sheriff reiterates the argument on appeal.


[19]   Turning briefly to the question of proper venue, both H.M. and the Sheriff agree

       that the trial court was in error, and we in turn agree with them. Section 35-38-

       9-10(f) is explicit that a discrimination complaint may be brought to either the

       court that entered the expungement or to any court of general jurisdiction. This

       includes the Marion Superior Court, which is both the court in which the

       expungement was granted—indeed, the petition for contempt was brought

       under the same cause number as the original expungement proceedings—and a

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016    Page 8 of 14
       court of general jurisdiction. The Marion Superior Court was thus a proper

       venue, and the trial court’s contrary ruling was erroneous.


[20]   We turn now to the order of dismissal as it relates to the Sheriff’s contention

       before the trial court that H.M. could not seek relief against the Sheriff under

       the expungement statute’s anti-discrimination provisions. The Sheriff’s

       argument here rests upon its interpretation of the ability of a law enforcement

       official, pursuant to Section 35-38-9-6(a), to access information that otherwise

       would be subject to non-disclosure as a result of expungement when the Sheriff

       accesses such information in the course of official duties.


[21]   That statute granting Indiana sheriffs authority to appoint special deputy

       sheriffs requires that such individuals meet age and training requirements. It

       also requires that such persons “never have been convicted of a felony, or a

       misdemeanor involving moral turpitude,” and that they “be of good moral

       character.” I.C. §§ 36-8-10-10.6(b)(2) & (3). In light of these requirements, the

       Sheriff contends that access to information related to an individual’s prior

       expunged convictions was permissible as within the scope of official duties.


[22]   We agree with that proposition. However, that does not address the content of

       the petition for contempt or the anti-discrimination provision of the

       expungement statute. Indeed, the Sheriff’s brief before this court does not

       address the anti-discrimination provision at all, except to note its existence and

       that its interpretation has a place in this case. (Appellee’s Br. at 14.) Yet the




       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 9 of 14
       case hinges on the construction of the anti-discrimination provision in light of

       the other statutory provisions on which the Sheriff relies.


[23]   When construing a statute, our primary goal is to ascertain the legislature’s

       intent. Jackson v. State, 50 N.E.3d 767, 772 (Ind. 2016). To discern the

       legislature’s intent, we look first to the language of the statute and give effect to

       the plain and ordinary meaning of statutory terms. Id. Where the language of

       the statute is clear and unambiguous so that the meaning of the statute is plain,

       “we need not resort to other rules of statutory construction to divine intent.” Id.

       The expungement statutory scheme at issue here is a remedial one, namely, “to

       give individuals who have been convicted of certain crimes “a second chance by

       not experiencing many of the stigmas associated with a criminal conviction.”

       Taylor v. State, 7 N.E.3d 362, 367 (Ind. Ct. App. 2014). As a remedial statute,

       we must liberally construe the expungement statute to give effect to that

       remedy. Brown v. State, 947 N.E.2d 486, 490 (Ind. Ct. App. 2011), trans. denied.


[24]   As H.M. notes, Section 35-38-9-10(b)’s anti-discrimination provision is clear:

       no person may use knowledge of another’s expunged criminal history as a basis

       for discrimination in employment, accommodation, or in any other form.

       Section 35-38-9-6(a)’s provision that permits enforcement officers in the course

       of their duties to access information expunged from an individual’s criminal

       history and sealed from public view, is also clear: a person’s records may be

       “releas[ed]” to a law enforcement officer without a court order. The statutory

       requirements for appointing special deputies clearly indicate that a sheriff may

       not appoint as a special deputy sheriff an individual that has previously

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 10 of 14
       committed a felony or misdemeanor indicative of moral turpitude or an

       individual without good moral character. I.C. § 36-8-10-10.6(b). Thus, a sheriff

       may properly access expunged criminal history of a deputy sheriff candidate.


[25]   That does not mean that law enforcement officials are given statutory leave to

       use that information in any manner they please. The anti-discrimination

       provisions of Section 35-38-9-10 expressly contemplate the possibility that

       someone might be asked about an expunged criminal history and limit the

       scope of that inquiry. They provide that “a person may be questioned about a

       previous criminal record only in terms that exclude expunged convictions or

       arrests, such as: ‘Have you ever been arrested for or convicted of a crime that

       has not been expunged by a court.’” I.C. § 35-38-9-10(d). Even if information

       about expunged convictions is disclosed, the statute still precludes use of that

       fact as a basis for adverse action: such action is “unlawful” if taken “because of

       a conviction or arrest record expunged or sealed under this chapter.” I.C. § 35-

       38-9-10(b). Thus, while the Sheriff may access expunged convictions, the

       language of the expungement statute precludes adverse action “because” of

       those convictions. Moreover, neither party directs us to any express statutory

       language that carves out any exception to the anti-discrimination provisions as

       they relate to appointing deputy sheriffs, nor have we found such an exception.


[26]   If the expungement statute thus does not permit sheriffs to deny a privilege or

       status “because of” an expunged conviction or arrest, the rest falls in line.

       Here, the trial court granted a motion to dismiss a petition for contempt that

       alleged that the Sheriff had discriminated against H.M. because of his expunged

       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 11 of 14
       convictions. H.M. couched this in terms of the denial of a position as a

       volunteer sheriff’s deputy; the Sheriff contends H.M. sought special deputy

       status so that he could engage in certain security business activities. In either

       event, H.M. alleged that the denial of his applied-for status occurred because of

       his prior expunged convictions: “Pursuant to I.C. 35-38-9-10(b) the Marion

       County Sheriff’s Department has unlawfully discriminated against [H.M.] by

       refusing to employ him based upon a conviction or arrest record expunged or

       sealed” by court order. (App’x at 08.)


[27]   It may well be that the Sheriff had other bases upon which to deny H.M.’s

       application. But given the precise nature of H.M.’s allegation in the petition

       and the breadth of the anti-discrimination provisions of the expungment statute,

       we cannot say as a matter of law that the petition failed to adequately set forth a

       basis upon which H.M. might proceed in an effort to prove discrimination

       solely based upon his prior expunged convictions.


[28]   We recognize the Sheriff’s need to appoint deputy sheriffs who are qualified

       under the deputization statutes, as well as the scrutiny to which law

       enforcement is subjected. Yet the Indiana General Assembly has not limited

       the scope of the expungement statute by carving out an exception to the anti-

       discrimination provisions for the designation of deputy sheriffs. It is thus to the

       legislature—the same body that governs the powers of sheriffs to appoint their

       deputies—that the Sheriff’s arguments are best directed.




       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 12 of 14
[29]   Accordingly, we conclude that the trial court erred when it granted the Sheriff’s

       motion to dismiss, and we reverse the order of dismissal. We therefore remand

       the case for further proceedings consistent with our decision today.



                                                Conclusion
[30]   The trial court did not err when it denied H.M.’s motion to strike. The trial

       court erred when it dismissed H.M.’s contempt petition.


[31]   Reversed and remanded.


       Riley, J., concurs.
       Barnes, J., concurs with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016   Page 13 of 14
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In Re The Expungement/Sealing
       of Records of H.M.,                                       Court of Appeals Case No.
                                                                 49A02-1604-MI-700
       Appellant-Defendant,

               v.

       State of Indiana and Marion
       County Sheriff,

       Appellee-Plaintiff.




       Barnes, Judge, concurring with separate opinion


[32]   I concur with my colleagues in full. I write, though, to urge our Legislature to

       examine this provision of Indiana law and carve out some sort of law-

       enforcement exception.


[33]   While I respect and strongly favor an orderly and warranted expungement

       process, I believe law enforcement ought to be able to thoroughly examine

       one’s past criminal history and make judgments accordingly. A multitude of

       remedies would remain for those who would feel unfairly treated. I simply

       favor, for some of the most sensitive positions in our society, an approach that

       would provide more discretion to hiring agencies.




       Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016            Page 14 of 14
