MEMORANDUM DECISION
                                                                     Jan 20 2016, 6:53 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the purpose
of establishing the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                       ATTORNEY FOR APPELLEES
W. Edward Skees                                              Rosemary L. Borek
The Skees Law Office                                         Stephenson Morow & Semler
New Albany, Indiana                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Shepherd Thompson,                                    January 20, 2016

Appellant-Plaintiff,                                         Court of Appeals Case No.
                                                             10A05-1506-PL-652
        v.                                                   Appeal from the Clark Circuit Court
                                                             No. 4

City of Jeffersonville, Indiana                              The Honorable Larry W. Medlock,
                                                             Special Judge
and its Fire Department Merit
Commission,                                                  Trial Court Cause No.
                                                             10C04-1408-PL-108
Appellees-Defendants.




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016      Page 1 of 7
                                          Case Summary
[1]   Joshua Shepherd Thompson (“Thompson”), a firefighter in Jeffersonville (“the

      City”), was determined ineligible for promotion after a change in policy by the

      City’s Fire Department (“the Fire Department”) Merit Commission (“the

      Commission”). He sought judicial review of this determination, and the trial

      court dismissed his claim. He now appeals.


[2]   We affirm.



                                                    Issues
[3]   Thompson presents several issues for our review, but we find one dispositive:

      whether the trial court properly dismissed Thompson’s petition for judicial

      review for lack of subject-matter jurisdiction.



                            Facts and Procedural History
[4]   Thompson appeals the dismissal of his claim, and we accordingly take our

      statement of facts from his complaint.


[5]   Thompson was hired as a merit employee of the Fire Department in August

      2010. In September 2011, the Commission’s rules were changed to require two

      years of “on-line” service prior to employees being eligible for certain

      promotions. (App’x at 8.) This policy change was not distributed to

      department member as required under statute. See Ind. Code § 36-8-3.5-22.



      Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016   Page 2 of 7
[6]   In January 2012, Thompson took a position as a political appointee within the

      Fire Department, but retained his length of service and merit status for

      promotion consideration. In July 2012, Thompson applied to begin the merit

      system promotion process, and in August 2012 the Commission and its

      attorney notified Thompson that he was eligible to participate in the promotion

      process.


[7]   In October 2012, after written and oral testing, Thompson was ranked second

      among seven Fire Department members eligible for promotion. The following

      month, the firefighters’ union challenged Thompson’s eligibility for merit

      promotion. In apparent response, the Commission removed Thompson from

      the eligibility list for merit promotion. In January 2013, 1 Thompson appealed

      this determination, and the Commission denied his appeal.


[8]   In November 2013, the Commission adopted new eligibility rules. In April

      2014, Thompson left his political appointment and returned to “on-line” service

      with the Fire Department. He was at this time notified that he was not eligible

      for promotion within the merit system until 2016.


[9]   In June 2014, Thompson appealed this determination, seeking to be returned to

      the merit status he held in October 2012. On August 14, 2014, the Commission

      denied Thompson’s appeal.




      1
       Thompson’s complaint reads “January 2012.” The Commission appears to agree that Thompson intended
      January 2013, and we construe his complaint accordingly.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016   Page 3 of 7
[10]   On August 29, 2014, Thompson filed his verified complaint, which challenged

       the Commission’s decision and sought monetary damages and a permanent

       injunction ordering the Commission to restore to Thompson his merit status as

       of October 2012. Thompson’s suit named the City and the Commission as

       defendants.


[11]   On November 19, 2014, the Commission filed a motion to dismiss. In its

       motion, the Commission argued that the trial court lacked subject matter

       jurisdiction over Thompson’s claim, that Thompson had belatedly sought

       judicial review, and that Thompson had not named the proper defendants.


[12]   A hearing on the motion to dismiss was conducted on April 24, 2015. The trial

       court entered its order dismissing Thompson’s complaint on May 15, 2015.


[13]   This appeal ensued.



                                   Discussion and Decision
[14]   Thompson appeals the trial court’s order dismissing his verified petition for

       judicial review under Trial Rule 12(B)(1).2 If the facts before the trial court are

       not in dispute, the question of subject matter jurisdiction is purely one of law.




       2
         The trial court also dismissed Thompson’s petition for judicial review as untimely filed. Because we resolve
       the appeal on a jurisdictional basis, we do not reach the remainder of Thompson’s issues on appeal.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016             Page 4 of 7
       GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). We review such

       decisions de novo. Id.


[15]   At issue here is the proper interpretation of the judicial review provisions of

       Indiana’s police and fire department merit system statute. See I.C. § 36-8-3.5-1

       et seq. Courts receive subject-matter jurisdiction over a class of cases only

       through the constitution or legislative enactment. In re Adoption of J.T.D., 21

       N.E.3d 824, 828 (Ind. 2014). Where the language of a statute is unambiguous,

       “‘[w]e may not expand or contract the meaning of a statute by reading into it

       language which will, in the opinion of the Court, correct any supposed

       omissions or defects.’” Williams v. State, 952 N.E.2d 317, 319-20 (Ind. Ct. App.

       2011) (quoting Grody v. State, 257 Ind. 651, 659-60, 278 N.E.2d 280, 285

       (1972)).


[16]   In its motion to dismiss, the Commission argued that the trial court lacked

       jurisdiction over the class of case at issue because the statute permits “appeal to

       the circuit or superior court” by “[a] member who is aggrieved by a decision of

       the commission to suspend him for a period greater than ten (10) calendar days,

       demote him, or dismiss him.” I.C. § 36-8-3.5-18(a). The Commission argued

       that the determination of eligibility for promotion does not fall within the three

       enumerated bases—suspension for more than ten calendar days, demotion, or

       dismissal—upon which an appeal may be premised. The trial court agreed,

       concluding that “the law does not provide this court with subject-matter

       jurisdiction over promotion eligibility requirements for police or fire

       departments” and that “the situation would not qualify as an event of

       Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016   Page 5 of 7
       discipline, demotion, or dismissal.” (App’x at 7.) Thompson argues that

       removal from the promotion eligibility list was a demotion, and thus the trial

       court erred when it dismissed his petition for judicial review.


[17]   We think the trial court was correct in its determination that removal from the

       promotion eligibility list was not disciplinary action, demotion, or dismissal

       from employment within the meaning of Section 36-8-3.5-18. The statute’s

       terms relate to employment decisions that directly affect the pay and work

       status of an employee, and the scope of appealable disciplinary actions is

       narrower than the overall scope of actions a merit commission may take. See

       I.C. § 36-8-3.5-17(a) (providing that a merit commission may suspend with or

       without pay, demote, or dismiss an employee). Demotion and promotion are

       commonly understood to mean increase or reduction in position, that is,

       relegation to a subordinate or superordinate rank. Thompson was not demoted

       in rank, and the trial court was thus without statutory authority to hear his

       appeal. Thus, the court was without subject-matter jurisdiction to review the

       Commission’s decision and properly dismissed his appeal.


[18]   In his briefs, Thompson argues that this result would render the police and fire

       merit system statutes unenforceable. In particular, Thompson directs us to his

       allegation in the verified petition that the Commission did not properly

       distribute the 2011 changes to the promotion eligibility policies, and argues that

       without jurisdiction over this class of case the statutes cannot be properly

       enforced. Yet to the extent his argument is with the language and scope of a

       legislative enactment, his complaint is properly directed toward the Indiana

       Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016   Page 6 of 7
       General Assembly, which enacted the statute that defines the scope of judicial

       review of merit board decisions. See In re Adoption of J.T.D., 21 N.E.3d at 828;

       Boehm v. Town of St. John, 675 N.E.2d 318, 321-22 (Ind. 1996) (recognizing the

       legislature’s role in defining the public policy of the state, and expressing

       caution with respect to potential violations of the separation of powers).

       Further, if Thompson had any constitutional due-process claims that could

       have served as means to enforce statutory provisions concerning notification of

       policy changes, we note that he failed to pursue such a claim and has made no

       cognizable Indiana constitutional claim.3


[19]   Having found no error in the trial court’s decision that it lacked subject-matter

       jurisdiction over Thompson’s claim, we affirm the order of dismissal.


[20]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       3
        On October 21, 2014, Thompson filed a stipulation with the trial court that he was not asserting any federal
       constitutional claims. (App’x at 4.) Thompson’s briefs before this Court make a single reference to the
       Indiana Constitution, with no subsequent argument sounding in constitutional doctrine.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1506-PL-652 | January 20, 2016            Page 7 of 7
