                                                                         FILED
                                                                     Jun 26 2020, 8:11 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                        Andrea Ciobanu
Attorney General of Indiana                                Ciobanu Law, P.C.
                                                           Indianapolis, Indiana
Benjamin M. L. Jones
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Marion County Circuit Court,                               June 26, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-MI-1536
        v.                                                 Appeal from the Marion Superior
                                                           Court
Dustin King,                                               The Honorable James B. Osborn,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49D14-1711-MI-42083



May, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020                            Page 1 of 17
[1]   Marion Circuit Court (“MCC”) appeals the denial of its motion to dismiss

      Dustin King’s (“King”) claims against it under Title II of the Americans with

      Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the

      Rehabilitation Act, 29 U.S.C. § 794. MCC presents multiple issues for review,

      which we restate as:


              1. Whether the trial court erred when it denied MCC’s motion to
              dismiss King’s claims under Section 504 of the Rehabilitation
              Act; and


              2. Whether the trial court erred when it denied MCC’s motion to
              dismiss King’s claims under Title II of the ADA.


      We reverse and remand.



                             Facts and Procedural History                                 1




[2]   In 2013, King was involved in a family law matter in MCC. As part of that

      matter, MCC ordered King and the other party to engage in mediation. As the

      parties did not have the funds to pay for mediation, they qualified for and were

      accepted into the Marion County Modest Means Mediation Program (“Modest

      Means”). The parties were scheduled to participate in mediation on July 12,

      2013.




      1
        We held oral argument on this matter remotely via Zoom on May 21, 2020. We appreciate counsel’s
      flexibility in participating in an oral argument in this novel manner and commend counsel on their thorough
      presentation of the issues.

      Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020                               Page 2 of 17
[3]   On June 21, 2013, King, who is deaf and communicates through American

      Sign Language (“ASL”), requested the appointment of an ASL interpreter to be

      present at the upcoming mediation. MCC denied his request, stating in its

      order that the “Court does not supply interpreters for mediation hearings.”

      (App. Vol. II at 17.) King filed a motion to reconsider, arguing MCC’s decision

      violated his rights under Title II of the ADA and Section 504 of the

      Rehabilitation Act. MCC denied King’s motion to reconsider but waived

      King’s mandatory participation in mediation in the family law matter.


[4]   King wanted to participate in mediation and filed a motion for MCC to certify

      the issue for interlocutory appeal, which MCC denied. King participated in

      mediation through the previously-approved Modest Means Program with the

      aid of a family member as his interpreter, and the family law matter was

      ultimately resolved.


[5]   On November 7, 2014, in Federal District Court, King filed suit against MCC,

      the Indiana Supreme Court, the Marion County Office of the Court

      Administrator, the Marion County Council, and the Indiana Supreme Court

      Division of State Court Administration, alleging MCC’s actions violated his

      rights under Title II of the ADA and Section 504 of the Rehabilitation Act. On

      May 5, 2015, the Federal District Court dismissed with prejudice King’s claims

      under the Rehabilitation Act as to all defendants. It also dismissed with

      prejudice his ADA claims against all defendants except MCC. King v. Indiana

      Supreme Court, et al., No. 1:14-cv-01092-JMS-MJD, 2015 WL 2092848 (S.D.



      Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020       Page 3 of 17
      Ind. May 5, 2015). King did not appeal the Federal District Court’s dismissals

      of those claims.


[6]   After cross-motions for summary judgment and a bench trial on King’s

      remaining ADA claim against MCC, the Federal District Court ruled in King’s

      favor and awarded him $10,038.00 in damages. King v. Marion Circuit Court,

      No. 1:14-cv-01092-JMS-MJD, 2016 WL 3031085 (S.D. Ind. May 27, 2016).

      MCC appealed, and the Seventh Circuit Court of Appeals reversed, holding the

      language of the ADA did not explicitly abrogate Indiana’s sovereign immunity

      to King’s claim. King v. Marion Circuit Court, 868 F.3d 589, 593 (7th Cir. 2017),

      reh’g denied, reh’g en banc denied, cert. denied. The Seventh Circuit left undecided

      whether Indiana had by state statute or precedent waived its sovereign

      immunity to King’s claim and stated:


              Since we do not decide the merits, King may, if he wishes,
              present his contentions to Indiana’s courts. Even when Congress
              has not abrogated states sovereign immunity, states themselves
              may waive it in full or in part. See Alden v. Maine, 527 U.S. 706,
              755, 119 S. Ct. 2240, 144 L.Ed.2d 636 (1999). Indiana is among
              many states that have consented to be sued in their own courts
              over many alleged wrongs. See Hoagland v. Franklin Township
              Community School Corp., 27 N.E.3d 737, 749 (Ind. 2015); Campbell
              v. State, 259 Ind. 55, 62-63, 284 N.E.2d 733 (1972). We need not
              consider whether King’s claim might be subject to the notice and
              timing rules of the Indiana Tort Claims Act, Ind. Code §§ 34-13-
              3-3, 34-13-3-6, or whether, because it is based on a statute, it is
              outside that law’s requirements. Those and related issues are for
              the state’s judiciary.




      Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020          Page 4 of 17
              The judgment of the district court is reversed, and the case is
              remanded with instructions to dismiss without prejudice to
              raising a Title II claim in state court.


      Id. at 594.


[7]   On November 9, 2017, King filed a complaint against MCC in Marion Superior

      Court. King alleged MCC violated his rights under Title II of the ADA. On

      June 28, 2018, MCC filed a motion to dismiss the complaint. After oral

      argument and briefing of the issues, the trial court denied MCC’s motion to

      dismiss. MCC filed a motion to certify the issue for interlocutory appeal, and

      the trial court denied that request on December 18, 2018.


[8]   On December 21, 2018, King filed an amended claim alleging MCC violated

      his rights under Title II of the ADA and Section 504 of the Rehabilitation Act.

      MCC moved to dismiss King’s complaint under Indiana Trial Rules 12(b)(1)

      and 12(b)(6), arguing that King’s claims were barred by sovereign immunity,

      judicial immunity, waiver, and res judicata, and that each claim failed as a

      matter of law. After oral argument and briefing of the issues, the trial court

      summarily denied MCC’s motion to dismiss on April 29, 2019.


[9]   On May 15, 2019, MCC filed a motion to certify the trial court’s April 29, 2019,

      order denying its motion to dismiss for interlocutory appeal. After briefing and

      a stay in the proceedings, the trial court granted that request. We accepted

      jurisdiction over the matter on August 26, 2019.




      Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020         Page 5 of 17
                                   Discussion and Decision
[10]   Our standard of review for the trial court’s denial of a motion to dismiss under

       Indiana Trial Rules 12(B)(1) and 12(B)(6) is well-settled:


               Trial Rule 12(B)(1) addresses the “[l]ack of jurisdiction over the
               subject matter.” In reviewing a motion to dismiss for lack of
               subject matter jurisdiction pursuant to Trial Rule 12(B)(1), the
               relevant question is whether the type of claim presented falls
               within the general scope of the authority conferred upon the
               court by constitution or statute. Robertson v. Anonymous Clinic, 63
               N.E.3d 349, 356 (Ind. Ct. App. 2016), trans. denied. A motion to
               dismiss for lack of subject matter jurisdiction presents a threshold
               question with respect to a court’s power to act. Id. “The
               standard of review for a trial court’s grant or denial of a 12(B)(1)
               motion to dismiss for lack of subject matter jurisdiction is ‘a
               function of what occurred in the trial court.’” Berry v. Crawford,
               990 N.E.2d 410, 414 (Ind. 2013) (citing GKN Co. v. Magness, 744
               N.E.2d 397, 401 (Ind. 2001)), reh’g denied. Where the facts before
               the trial court are not in dispute, the question of subject matter
               jurisdiction is one of law, and we review the trial court’s ruling de
               novo. Id. Likewise, when reviewing a final judgment, we review
               all conclusions of law de novo. Id.


                                                      *****


               Trial Rule 12(B)(6) addresses the “[f]ailure to state a claim upon
               which relief can be granted.” A motion to dismiss under Trial
               Rule 12(B)(6) tests the legal sufficiency of the plaintiff’s claim,
               not the facts supporting it. Bellwether Properties, LLC v. Duke
               Energy Indiana, Inc., 87 N.E.3d 462, 466 (Ind. 2017). A dismissal
               under Trial Rule 12(B)(6) is improper “‘unless it appears to a
               certainty on the face of the complaint that the complaining party
               is not entitled to any relief.’” Id. (quoting State v. American Family
               Voices, Inc., 898 N.E.2d 293, 296 (Ind. 2008), reh’g denied). We
       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020            Page 6 of 17
                review a Trial Rule 12(B)(6) dismissal de novo, giving no
                deference to the trial court’s decision. Id. In reviewing the
                complaint, we take the alleged facts to be true and consider the
                allegations in the light most favorable to the nonmoving party,
                drawing every reasonable inference in that party’s favor. Id. A
                complaint states a claim on which relief can be granted when it
                recounts sufficient facts that, if proved, would entitle the plaintiff
                to obtain relief from the defendant. Id.


       Metz as Next Friend of Metz v. Saint Joseph Reg’l Med. Ctr.- Plymouth Campus, Inc.,

       115 N.E.3d 489, 493-4 (Ind. Ct. App. 2018).


           1. King’s Claims under Section 504 of the Rehabilitation Act
[11]   Under Section 504 of the Rehabilitation Act,


                [n]o otherwise qualified individual with a disability in the United
                States, as defined in section 705(20) of this title, shall, solely by
                reason of her or his disability, be excluded from the participation
                in, be denied the benefits of, or be subjected to discrimination
                under any program or activity receiving Federal financial
                assistance[.]


       29 U.S.C. § 794. King brought a claim in Federal District Court against MCC 2

       alleging it violated his rights under Section 504 of the Rehabilitation Act when

       it denied his request for an ASL interpreter because MCC was a “recipient[]

       either directly and/or indirectly of federal financial assistance and . . .




       2
         As noted in the facts, King’s claim under Section 504 of the Rehabilitation Act was brought against several
       other defendants, however, those parties are not relevant to this analysis because they are not parties to the
       state action before us.

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020                                 Page 7 of 17
       recipient[] either directly and/or indirectly of federal financial assistance

       specifically for the provision of ASL interpreters and other auxiliary aids and

       services[.]” (Motion for Interlocutory Appeal in State Action, Ex. B at 3.)


[12]   The Federal District Court dismissed with prejudice King’s claim against MCC

       under Section 504 of the Rehabilitation Act because King’s complaint indicated

       Modest Means was “funded by the collection of a $20.00 fee from every party

       filing for legal separation, paternity, or a dissolution case in each respective

       county and a co-payment by participants in the program based on ability to

       pay.” King, 2015 WL 2092848 at *16 (quoting from internal filing). The

       District Court rejected King’s argument trying to directly or indirectly impute

       any federal assistance MCC received to Modest Means by stating: “Any

       ‘economic ripple effects’ that the Modest Means Mediation Program may

       benefit from, such as use of the County Defendants’ office space, are

       insufficient to bind the Modest Means Mediation Program to the Rehabilitation

       Act.” Id.


[13]   When King filed his claim in state court, he again asserted MCC violated his

       rights under Section 504 of the Rehabilitation Act. MCC moved to dismiss that

       claim under the doctrine of res judicata, and the trial court denied that motion.

       On appeal, MCC argues the trial court erred when it denied MCC’s motion to

       dismiss King’s claims under Section 504 of the Rehabilitation Act because the

       Federal District Court’s dismissal with prejudice of that claim precludes it from

       reconsideration.



       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020          Page 8 of 17
[14]   Res judicata serves to prevent repetitious litigation of disputes that are essentially

       the same. Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind. Ct. App. 2003).

       As we have explained, claim preclusion


                 applies where a final judgment on the merits has been rendered
                 and acts as a complete bar to a subsequent action on the same
                 issue or claim between those parties and their privies. When
                 claim preclusion applies, all matters that were or might have been
                 litigated are deemed conclusively decided by the judgment in the
                 prior action. The following four requirements must be satisfied
                 for claim preclusion to apply as a bar to a subsequent action: (1)
                 the former judgment must have been rendered by a court of
                 competent jurisdiction; (2) the former judgment must have been
                 rendered on the merits; (3) the matter now in issue was, or could
                 have been, determined in the prior action; and (4) the
                 controversy adjudicated in the former action must have been
                 between the parties to the present suit or their privies.


       Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013), trans.

       denied.


[15]   Regarding the first factor for claim preclusion, it is undisputed that the District

       Court was a court of competent jurisdiction. See 28 U.S.C. § 1331 (Federal

       district courts “shall have original jurisdiction of all civil actions under the

       Constitution, laws, or treaties of the United States.”); see also Stanley v. Litscher,

       213 F.3d 340, 344 (7th Cir. 2000) (“the Rehabilitation Act is enforceable in

       federal court against recipients of federal largess”). Second, regarding whether

       the former judgment was rendered on the merits, “dismissal with prejudice is

       conclusive of the rights of the parties and is res judicata as to any questions that


       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020             Page 9 of 17
       might have been litigated[.]” Afolabi v. Atlantic Mortg. & Investment Corp., 849

       N.E.2d 1170, 1173 (Ind. Ct. App. 2006) (emphasis added).


[16]   Regarding the third factor, whether the matter here – whether MCC received

       federal funding to operate Modest Means – was, or could have been determined

       in the prior action, we note the virtually identical phrasing in King’s complaints

       before the federal and state courts. (Compare Motion for Interlocutory Appeal

       Ex. B at 3 (alleging in federal claim that MCC “directly and/or indirectly”

       received federal funds to operate Modest Means) with App. Vol. II at 13-14

       (alleging MCC “was recipient of [sic] either directly and/or indirectly of federal

       financial assistance” to operate Modest Means)). 3 Regarding the fourth factor,

       both the federal and state cases have the same defendant: MCC. Therefore, all

       elements of claim preclusion exist here. Based thereon we conclude the trial

       court erred when it denied MCC’s motion to dismiss King’s claims under

       Section 504 of the Rehabilitation Act because those claims were barred by res

       judicata. See, e.g., Freels v. Koches, 94 N.E.3d 339, 344 (Ind. Ct. App. 2018)

       (affirming dismissal of complaint based on res judicata, specifically claim

       preclusion).




       3
         King asserts he has “new facts” (Appellee’s Br. at 28), that indicate MCC receives federal funding that were
       not discovered at the federal level because “there were ongoing issues with discovery” (Oral Argument, May
       21, 2020, at 31:28-31:34) before the District Court. However, any issues in discovery that resulted in an
       incorrect decision by the District Court could have been appealed or cross appealed to the Seventh Circuit,
       and King did neither.

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020                                Page 10 of 17
                       2. King’s Claims under Title II of the ADA
[17]   Title II of the ADA states that “[s]ubject to the provisions of this subchapter, no

       qualified individual with a disability shall, by reason of such disability, be

       excluded from participation in or be denied the benefits of the services,

       programs, or activities of a public entity, or be subjected to discrimination by

       any such entity.” 42 U.S.C. § 12132. The parties do not dispute that King has

       a disability covered by the ADA; instead, they dispute whether Indiana is

       immune from suit based on sovereign immunity.


[18]   The Eleventh Amendment to the United States Constitution gives States

       immunity from “any suit in law or equity, commenced or prosecuted . . . by

       Citizens of another State, or by Citizens or Subjects of any Foreign State.”

       Despite the plain language of that Amendment, which explicitly states it applies

       to citizens of a state other than the state being sued, the United States Supreme

       Court has repeatedly held sovereign immunity under the Eleventh Amendment

       also applies in claims against a state by its own citizens. See, e.g., Bd. of Tr. of the

       Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001) (listing cases extending

       Eleventh Amendment immunity to claims between states and their own

       citizens). The State need not be a named party for Eleventh Amendment

       immunity to apply; sovereign immunity may be asserted by a state’s constituent

       divisions and by those divisions’ officers and employees. Will v. Michigan Dep’t

       of State Police, 491 U.S. 58, 71 (1989). The parties do not dispute that MCC is a

       division of Indiana’s judicial branch of government and entitled to assert

       sovereign immunity.

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020            Page 11 of 17
[19]   Sovereign immunity is not absolute, and it may be waived, generally, in two

       ways – by the plain language of the relevant federal statute, Kimel v. Florida Bd.

       of Regents, 528 U.S. 62, 73 (2000), or through the State’s own action, either by

       consenting to be sued in a similar claim, or by the General Assembly abrogating

       the state’s sovereign immunity with regards to certain claims. Esserman v.

       Indiana Dep’t of Envtl. Mgmt. 84 N.E.3d 1185, 1188-90 (Ind. 2017).


       A. Abrogation of Sovereign Immunity Based on the Plain Language of Title II
                                      of the ADA

[20]   Section Five of the Fourteenth Amendment states: “Congress shall have power

       to enforce, by appropriate legislation, the provisions of this article.” This

       section authorizes Congress to abrogate states’ sovereign immunity in

       circumstances where sovereign immunity under the Eleventh Amendment

       would limit other rights guaranteed under the Fourteenth Amendment. 4

       Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). To exercise this authority,

       Congress must unequivocally intend to do so and act pursuant to a valid grant

       of constitutional authority. Kimel, 528 U.S. at 73.




       4
           The Fourteenth Amendment states, in relevant part:

                  All persons born or naturalized in the United States, and subject to the jurisdiction
                  thereof, are citizens of the United States and of the state wherein they reside. No state
                  shall make or enforce any law which shall abridge the privileges or immunities of citizens
                  of the United States; nor shall any state deprive any person of life, liberty, or property,
                  without due process of law; nor deny to any person within its jurisdiction the equal
                  protection of the laws.
       14th Amendment to the United States Constitution, Section 1.

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020                                  Page 12 of 17
[21]   MCC asserts any argument regarding the abrogation of sovereign immunity by

       operation of the plain language of Title II of the ADA is not available before a

       state court based on issue preclusion under the doctrine of res judicata. As we

       stated supra, res judicata serves to prevent repetitious litigation of disputes that

       are essentially the same. Dawson, 796 N.E.2d at 1195. Issue preclusion, also

       known as collateral estoppel,


               bars the subsequent litigation of a fact or issue that was
               necessarily adjudicated in a former lawsuit if the same fact or
               issue is presented in the subsequent lawsuit. If issue preclusion
               applies, the former adjudication is conclusive in the subsequent
               action, even if the actions are based on different claims. The
               former adjudication is conclusive only as to those issues that
               were actually litigated and determined therein. Thus, issue
               preclusion does not extend to matters that were not expressly
               adjudicated and can be inferred only by argument. In
               determining whether issue preclusion is applicable, a court must
               engage in a two-part analysis: (1) whether the party in the prior
               action had a full and fair opportunity to litigate the issue, and (2)
               whether it is otherwise unfair to apply issue preclusion given the
               facts of the particular case.


       Angelopoulos, 2 N.E.3d at 696.


[22]   As part of its decision on MCC’s appeal in King’s federal claim under Title II of

       the ADA, the Seventh Circuit held:


               We have now run out of theories about how awarding King
               damages under Title II would protect anyone’s constitutional
               rights. King was invited to come to the Marion Circuit Court for
               resolution of his domestic-relations dispute. The Circuit Court


       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020           Page 13 of 17
                  therefore did not actually violate any right falling under Lane’s 5
                  “fundamental access” umbrella. Nor could abrogating sovereign
                  immunity avert future violations. King has not suggested that
                  any constitutional right of access to court is under threat in
                  Marion County. All of this leads to just one conclusion—that
                  this case has no constitutional dimension at all. Title II therefore
                  does not abrogate sovereign immunity here, and the Marion
                  Circuit Court remains immune from this suit in federal court.


       King, 868 F.3d at 594 (internal citations omitted) (footnote added).


[23]   Regarding the factors for issue preclusion, King had a full and fair opportunity

       in federal court to litigate the issue of whether the language of Title II of the

       ADA abrogated Indiana’s sovereign immunity with regard to King’s claims. 6

       The Federal District Court agreed with King that the language of the ADA

       abrogated Indiana’s sovereign immunity and that MCC’s actions violated the

       ADA, and it ordered MCC to pay King over $10,000 in damages. However,

       MCC appealed that decision to the Seventh Circuit Court of Appeals, and the

       Seventh Circuit reversed. King then appealed the Seventh Circuit’s decision to

       the United States Supreme Court, which denied King’s request for certiorari.




       5
           Tennessee v. Lane, 541 U.S. 509, 531 (2004).
       6
         King’s federal and state claims under Title II of the ADA are virtually identical. (Compare Motion for
       Interlocutory Appeal Ex. B at 6 (MCC intentionally discriminated against King in violation of Title II of the
       ADA “by refusing to provide auxiliary aids and services necessary to ensure an equal opportunity for King to
       participate in mandatory mediation, a program and law required and promoted by [MCC].”) with App. Vol.
       II at 22 (MCC intentionally discriminated against King in violation of Title II of the ADA “by refusing to
       provide auxiliary aids and services necessary to ensure an equal opportunity for King to participate in
       mandatory mediation, a program and law required and promoted by [MCC].”)).

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020                              Page 14 of 17
[24]   Further, it is not otherwise unfair to apply issue preclusion here, because the

       State’s sovereign immunity from King’s claim may also be abrogated by the

       State’s own action, and thus the Seventh Circuit left open an avenue by which

       King could pursue his Title II claim in state court. In its opinion, the Seventh

       Circuit explicitly stated it intended its decision on the issue of statutory

       abrogation of sovereign immunity to control, and it stated King was free to

       present before a state court the issue of abrogation of sovereign immunity based

       on a state’s consent to be sued. See id. (“King may, if he wishes, present his

       contentions to Indiana’s courts. Even when Congress has not abrogated states’

       sovereign immunity, states themselves may waive it in full or in part.”).

       Therefore, all elements of issue preclusion are satisfied here. Based thereon, we

       conclude the trial court erred when it denied MCC’s motion to dismiss King’s

       claim under Title II of the ADA as to the issue of whether the language of Title

       II of the ADA abrogates MCC’s sovereign immunity with regard to King’s

       claim.


                           B. Waiver of Sovereign Immunity by State Action

[25]   A state may also waive its sovereign immunity by consenting to be sued in a

       similar claim or by action of the General Assembly abrogating the state’s

       sovereign immunity with regards to certain claims. Esserman, 84 N.E.3d at

       1189. In Esserman, an employee of the Indiana Department of Environmental

       Management (“IDEM”), Esserman, was fired after she alleged irregularities

       regarding IDEM’s dispersal of funds. Id. at 1187. Esserman filed a claim

       against IDEM for wrongful termination, alleging IDEM violated Section 8 of

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020          Page 15 of 17
       the Indiana False Claims and Whistleblower Act (“Whistleblower Provision”).

       IDEM moved to dismiss Esserman’s claims and asserted sovereign immunity.

       Id. Our Indiana Supreme Court noted the two methods by which the State

       could waive its sovereign immunity through state action – by action of the

       legislature and by consent to suit. Id. at 1188.


[26]   Regarding abrogation by action of the Indiana State Legislature, the Court

       outlined the history of waiver of sovereign immunity when the State is sued for

       a tort, dating back to Indiana’s earliest days of statehood. Id. at 1189-90. The

       Court noted that, in the past, Indiana had abrogated sovereign immunity for

       “proprietary functions . . . [and] government functions, too, except for the well-

       known trio of court-prescribed circumstances where the immunity remains

       intact: preventing crime, appointing officials to public office, and decision-

       making by the court.” Id. at 1190. The case history culminated in the

       enactment of the Indiana Tort Claims Act in 1974, “which grants immunity

       from tort liability to many governmental entities, including the State.” Id.

       Thus, because Esserman’s claim was not based in tort, our Indiana Supreme

       Court reasoned, the State retained its sovereign immunity from suit for

       Esserman’s claim under the Whistleblower Provision. Id.


[27]   In the case before us, we do not have a tort claim; instead King’s claims are

       related to decision-making by the court and rooted in federal statute. King does

       not allege MCC was negligent in denying his request for an interpreter; instead

       he claims MCC violated his rights under a federal statute by doing so. Thus,

       based on our Indiana Supreme Court’s holding in Esserman, the State of Indiana

       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020        Page 16 of 17
       has not waived its sovereign immunity. See id. at 1191 (“the common law

       applicable to such non-tort claims . . . is that State sovereign immunity remains

       intact”). The trial court erred when denied MCC’s motion to dismiss King’s

       claim under Title II of the ADA because the State has not waived its sovereign

       immunity by state action.



                                                 Conclusion
[28]   While we are sympathetic to King’s plight, we are procedurally unable to

       provide him relief in this matter. The trial court is precluded by claim

       preclusion under the doctrine of res judicata from considering King’s claims

       under Section 504 of the Rehabilitation Act. Similarly, the trial court is

       precluded by issue preclusion under the doctrine of res judicata from considering

       the issue of abrogation of Indiana’s sovereign immunity based on the language

       of Title II of the ADA. Finally, there has been no state action evincing

       Indiana’s consent to suit under a non-tort claim such as King’s claim under

       Title II of the ADA. Therefore, we conclude the trial court erred when it

       denied MCC’s motion to dismiss King’s claims. Accordingly, we reverse the

       decision of the trial court and remand for dismissal of King’s complaint.


[29]   Reversed and remanded.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-1536 | June 26, 2020          Page 17 of 17
