MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 10 2018, 5:32 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                      Brian A. Karle
Attorney General of Indiana                              Jason Ramsland
                                                         Lafayette, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Indiana Behavioral Health and                            August 10, 2018
Human Services Licensing                                 Court of Appeals Case No.
Board,                                                   79A02-1712-PL-2904
Appellant-Respondent,                                    Appeal from the Tippecanoe
                                                         Circuit Court
        v.                                               The Honorable Sean M. Persin,
                                                         Judge
Jenna Thomas,                                            The Honorable Thomas H. Busch,
Appellee-Petitioner                                      Senior Judge
                                                         Trial Court Cause No.
                                                         79C01-1704-PL-42



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 79A02-1712-PL-2904 | August 10, 2018          Page 1 of 5
[1]   Following an administrative hearing, the Indiana Behavioral Health and

      Human Services Licensing Board (the Board) issued an order imposing

      disciplinary sanctions on Jenna Thomas. Thomas sought judicial review. The

      trial court found in Thomas’s favor and concluded that the Board’s order was

      void because the Board failed to issue it within ninety days of the administrative

      hearing, pursuant to Ind. Code § 4-21.5-3-27(g). On appeal, the Board argues

      that it did not lose jurisdiction to issue an order after the statutory ninety-day

      timeframe passed.


[2]   We reverse.


                                       Facts & Procedural History


[3]   Thomas is a licensed clinical social worker in Indiana. On June 9, 2016, the

      State filed an administrative complaint against her for professional misconduct.

      The Board, acting as both the ultimate authority and an administrative law

      judge (ALJ) for the agency, conducted an administrative hearing on October

      24, 2016. Thomas filed a motion to dismiss on February 24, 2017, arguing that

      “the Board ha[d] failed to comply with the requirements of AOPA in issuing an

      order within ninety (90) days following the hearing”. Appellee’s Appendix Vol. 2

      at 3. On March 30, 2017, the Board issued its disciplinary order against

      Thomas, along with findings of fact. The Board placed Thomas’s license on

      indefinite probation and imposed several terms and conditions. The Board also

      issued an order denying the motion to dismiss.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-PL-2904 | August 10, 2018   Page 2 of 5
[4]   On April 4, 2017, Thomas filed a petition for judicial review in which she did

      not challenge the facts underlying the disciplinary order or the sanctions

      imposed. Rather, Thomas argued that the order was untimely and therefore

      invalid. The trial court heard oral argument on October 31, 2017, and then

      issued an order granting the petition for judicial review on November 16, 2017.

      Ultimately, the court determined that when the Board failed to issue its order

      within ninety days, the Board lost jurisdiction of the case and its untimely

      subsequent order was void. The Board now appeals.


                                          Discussion & Decision


[5]   I.C. § 4-21.5-3-27(g) provides:


              An order under this section shall be issued in writing within
              ninety (90) days after conclusion of the hearing or after
              submission of proposed findings in accordance with subsection
              (f), unless this period is waived or extended with the written
              consent of all parties or for good cause shown.


      The Board concedes that it failed to issue the order within ninety days of the

      hearing but argues that this failure did not affect its jurisdiction or act to

      invalidate the subsequent order. Thomas, on the other hand, argues that the

      order is void because it was issued outside of ninety days.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-PL-2904 | August 10, 2018   Page 3 of 5
[6]   Our court has addressed this issue before with respect to a related AOPA

      statute. In Roman Marblene Co. v. Baker, 88 N.E.3d 1090, 1098 (Ind. Ct. App.

      2017), trans. denied, we dealt with I.C. § 4-21.5-3-29(f),1 which provides:


               A final order disposing of a proceeding or an order remanding an
               order to an administrative law judge for further proceedings shall
               be issued within sixty (60) days after the latter of:

                        (1) the date that the order was issued under section 27 of
                        this chapter;

                        (2) the receipt of briefs; or

                        (3) the close of oral argument;

               unless the period is waived or extended with the written consent
               of all parties or for good cause shown.


      Relying on State v. Langen, 708 N.E.2d 617 (Ind. Ct. App. 1999), we held that

      despite the use of the word “shall” in the statute, the sixty-day time period was

      directory rather than mandatory. Roman Marblene, 88 N.E.3d at 1098. We

      observed that “the legislature did not intend the prescribed time period to be

      essential to the validity of the ultimate authority’s final order.” Id. We quoted

      the following language from Langen with approval:


               Our review of subsection (f) leads us to believe that the legislature
               did not intend the prescribed time period to be essential to the
               validity of the Commission’s final order. As is evident from the



      1
        I.C. § 4-21.5-3-29 applies in situations where the ALJ and the ultimate authority are not one in the same. In
      that instance, the ultimate authority reviews the order that was issued by the ALJ under section 27 and then
      issues a final order. When the ALJ is the ultimate authority, as in the case at hand, the final order is issued
      by the ALJ pursuant to section 27. Both sections provide time periods in which the orders “shall” be issued.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-PL-2904 | August 10, 2018             Page 4 of 5
              statute, no consequences attach in the event of an untimely order
              and under no circumstances has the legislature deprived the
              Commission of its ultimate authority to issue its final order. The
              statute neither purports to restrain the Commission from issuing
              a final order outside of the prescribed time period nor specifies
              that “adverse or invalidating consequences follow.” Moreover,
              the purpose and intent of the sixty day time period is to promote
              the prompt and expeditious resolution of the administrative
              matters by the ultimate authority. The time period is not
              intended as a jurisdictional prerequisite to a valid final order.
              Accordingly, a mandatory construction of subsection (f) would
              thwart the intention of the legislature.


      Roman Marblene, 88 N.E.3d at 1098 (quoting Langen, 708 N.E.2d at 622

      (citations omitted)). We then held, “although we understand Roman

      Marblene’s frustration with the length of time it took for the ICRC to issue its

      final order, the order issued is not void.” Id.


[7]   In light of Roman Marblene and Langen, we conclude that the statutory period set

      forth in I.C. § 4-21.5-3-27(g) is directory rather than mandatory and, therefore,

      the Board’s belated order is not void. See Roman Marblene, 88 N.E.3d at 1098;

      Langen, 708 N.E.2d at 621-22. Accordingly, the trial court erred when it

      vacated the Board’s final order.


[8]   Judgment reversed.


      Najam, J. and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-PL-2904 | August 10, 2018   Page 5 of 5
