                                                                             FILED
                                                                       Dec 04 2017, 6:03 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Zachary S. Kester                                         Scott L. Bunnell
Charitable Allies, Inc.                                   Joshua A. Atkinson
Indianapolis, Indiana                                     Michelle K. Floyd
                                                          Hunt Suedhoff Kalamaros LLP
                                                          Fort Wayne, Indiana
                                                          Attorneys for Patricia Roe

                                                          Linda L. Vitone
                                                          Kimberly E. Howard
                                                          Smith Fisher Maas Howard & Lloyd, PC
                                                          Indianapolis, Indiana
                                                          Attorneys for Aliza Anderson, Lorri
                                                          Bryant, Dr. Cathi Cornelius, Lauren
                                                          Peterson, Lauren Wright, and Robert
                                                          Dotson
                                                          John W. Mervilde
                                                          Rick D. Meils
                                                          Meils Thompson Dietz & Berish
                                                          Indianapolis, Indiana
                                                          Attorneys for Marshawn Wolley
                                                          Jeffrey D. Hawkins
                                                          Mark D. Gerth
                                                          Adam S. Ira
                                                          Kightlinger & Gray, LLP
                                                          Indianapolis, Indiana
                                                          Attorneys for Chi Blackburn, Brooke
                                                          Dunn, Frances L. Hudson, Tanjla
                                                          Lawrence, Frances Malone, Latika
                                                          Warthaw, Flanner House Elementary
                                                          School, Inc.
                                                          Curtis T. Hill, Jr.
                                                          Attorney General of Indiana
                                                          Kyle Hunter
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
                                                          Attorneys for the State of Indiana




Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017                      Page 1 of 21
                                           IN THE
    COURT OF APPEALS OF INDIANA

Flanner House of Indianapolis,                            December 4, 2017
Inc.,                                                     Court of Appeals Case No.
                                                          49A02-1612-PL-2942
Appellant-Plaintiff,
                                                          Appeal from the Marion Superior
        v.                                                Court.
                                                          The Honorable John F. Hanley,
                                                          Judge.
Flanner House Elementary                                  Trial Court Cause No.
School, Inc., Aliza Anderson,                             49D11-1508-PL-26396
Chi Blackburn, Lorri Bryant, Dr.
Cathi Cornelius, Robert Dotson,
Brooke Dunn, Frances L.
Hudson, Tanjla Lawrence,
Frances Malone, Lauren
Peterson, Patricia Roe, Latika
Warthaw, Marshawn Wolley,
Lauren Wright, and Liberty
Mutual Insurance Group,
Appellees-Defendants,

and

State of Indiana,

Appellee-Intervenor.




Friedlander, Senior Judge




Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017             Page 2 of 21
[1]   Flanner House of Indianapolis, Inc. (Flanner House) appeals the trial court’s

      entry of summary judgment in favor of Flanner House Elementary School, Inc.

      (Flanner School, Inc.) and its individual directors and officers (collectively
                       1
      “Appellees”). We affirm.


[2]   Flanner House presents three issues for our review, which we restate as:


              1. Whether the trial court erred in granting summary judgment in
              favor of the Appellees on the issue of compliance with the notice
              requirement of the Indiana Tort Claims Act (the Act).
              2. Whether application of the Act to charter schools and their
              organizers violates the equal privileges and immunities clause of
              the Indiana Constitution.
              3. Whether application of the Act to charter schools and their
              organizers violates the open courts clause of the Indiana
              Constitution.
[3]   Flanner School, Inc. is a nonprofit Indiana corporation that was established in

      early 2002. On February 27, 2002, Flanner School, Inc. entered into a charter

      school agreement with the Mayor of Indianapolis to establish a charter school

      named Flanner House Elementary School (Elementary School). Flanner

      School, Inc. operated the Elementary School as a charter school under this

      agreement until its charter was revoked on September 11, 2014. During that




      1
       Flanner House filed a motion to dismiss Chi Blackburn, Brooke Dunn, and Frances Malone, which the trial
      court granted on November 21, 2016. On January 24, 2017, Tanjla Lawrence was also dismissed from the
      case. Finally, on February 6, 2017, the trial court granted Flanner House and Liberty Mutual Insurance
      Group’s stipulation of dismissal of Liberty Mutual from this cause.

      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017                  Page 3 of 21
      time, Flanner School, Inc. leased its school building from Flanner House, a

      separate nonprofit Indiana corporation.


[4]   In August 2015, Flanner House sued Flanner School, Inc. for breach of

      contract, sued the Appellees for negligence and fraud, and sued Liberty Mutual

      Insurance Group for bad faith. In its complaint, Flanner House alleged that

      Flanner School, Inc. breached the lease by failing to pay monthly rent and that

      the Appellees owed a duty to Flanner House, which they recklessly breached by

      failing to hold regular meetings, operating the school without adequate

      oversight, and failing to adequately oversee the financial and educational

      activities of the school. To support its claims of fraud, Flanner House also

      claimed that the Appellees made false statements that caused it harm. In

      November 2016, on Flanner House’s motion, the trial court dismissed all of the

      fraud claims.


[5]   From July through October 2016, the Appellees, some individually and some

      jointly, filed motions for summary judgment. All of the Appellees argued that

      Flanner House had not provided them with notice under the Act, and Appellee

      Patricia Roe additionally argued in the alternative that no duty was owed to

      Flanner House. Flanner House responded that the Appellees were not entitled

      to notice under the Act and alleged that extending the protections of the Act to

      the Appellees violates the Indiana Constitution. Having received notice from

      the court that the constitutionality of the Act was being challenged in this

      action, the State filed motions to intervene and to bifurcate the constitutional

      issues, both of which were granted. After hearing argument on the motions for

      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 4 of 21
      summary judgment, the trial court entered final judgment for the Appellees.

      This appeal followed.


[6]   On appeal from a summary judgment, we apply the same standard of review as

      the trial court: summary judgment is appropriate only where the designated

      evidentiary matter shows there is no genuine issue as to any material fact and

      that the moving party is entitled to judgment as a matter of law. Young v. Hood’s

      Gardens, Inc., 24 N.E.3d 421 (Ind. 2015); see also Ind. Trial Rule 56(C). Where

      the challenge to the trial court’s summary judgment ruling presents only legal

      issues, not factual ones, we review the issues de novo. Ballard v. Lewis, 8

      N.E.3d 190 (Ind. 2014).


                                           1. “Charter School”
[7]   Flanner House asserts the trial court erred by granting summary judgment for

      the Appellees on the issue of its compliance with the tort claim notice

      requirement. The Act governs civil lawsuits against governmental entities and
                                                                                       2
      their employees. Ind. Code §§ 34-13-3-1 (1998), -3 (2016). Under the dictates

      of the Act, a charter school is a governmental entity. Ind. Code § 34-6-2-49(a)

      (2013). The Act provides that a claim against a governmental entity is barred

      unless notice is filed with the governing body of the governmental entity within

      180 days after a loss occurs. Ind. Code § 34-13-3-8 (1998).




      2
       There being no disagreement about the particular version of a statute applicable to this case, we cite the
      current version for the sake of efficiency and ease of the reader, unless otherwise noted.

      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017                          Page 5 of 21
[8]   In this litigation, Flanner House did not provide notice of its claims to the

      Appellees as required by the Act. The thrust of Flanner House’s argument is

      that Flanner School, Inc. is not a “charter school,” as that term is used in the

      Act, and therefore is not entitled to the notice required under the Act.

      Although Flanner House acknowledges that the Elementary School is a charter

      school, it contends Flanner School, Inc. is not a charter school but is instead an

      organizer of a charter school and therefore a distinct entity from the charter

      school itself. Accordingly, Flanner House argues that Flanner School, Inc. is

      not entitled to the notice provisions of the Act because it is not a governmental

      entity under the Act. The question before us then is whether our legislature

      intended to include the nonprofit organizer of a charter school in the meaning

      of that term for purposes of the Act.


[9]   A question of statutory interpretation is a matter of law, and we are neither

      bound by, nor are we required to give deference to, the trial court’s

      interpretation. Perry-Worth Concerned Citizens v. Bd. of Comm’rs of Boone Cnty.,

      723 N.E.2d 457 (Ind. Ct. App. 2000), trans. denied. Accordingly, our review is

      de novo. Ballard, 8 N.E.3d 190. When interpreting a statute, we look to the

      express language of the statute and the rules of statutory construction. Ind. State

      Teachers Ass’n v. Bd. of Sch. Comm’rs of City of Indianapolis, 693 N.E.2d 972 (Ind.

      Ct. App. 1998). This court is required to ascertain and execute legislative intent

      and to interpret the statute in such a manner as to prevent absurdity and to

      advance public convenience. Id. In so doing, we must be aware of the purpose

      of the statute, as well as the effect of such an interpretation. Id. We read the


      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 6 of 21
       individual sections of an act as a whole and strive to give effect to all of its

       provisions such that no part of the act is held meaningless if it can be reconciled

       with the rest of the statute. Citizens Action Coal. of Ind., Inc. v. Ind. Statewide Ass’n

       of Rural Elec. Coops., Inc., 693 N.E.2d 1324 (Ind. Ct. App. 1998). We presume

       that our legislature intended its language to be applied in a logical manner

       consistent with the underlying goals and policy of the statute. Id. Moreover, in

       this case we are mindful that because the Act is in derogation of the common

       law, it must be strictly construed against limitations on a claimant’s right to

       bring suit. Simpson v. OP Prop. Mgmt., LLC, 939 N.E.2d 1098 (Ind. Ct. App.

       2010).


[10]   A charter school is a public elementary school that is established by and

       operates under a charter. Ind. Code § 20-24-1-4 (2005). A charter is a contract

       between an organizer (a nonprofit corporation and its independent board) and

       an authorizer (the executive of a consolidated city) for the establishment of a

       charter school. Ind. Code §§ 20-24-1-3 (2013), -7 (2017), and -2.5(3) (2015). In

       the present case, Flanner School, Inc. is the organizer, and the Mayor of

       Indianapolis is the authorizer.


[11]   To establish a charter school, an organizer may submit to the authorizer a

       proposal, which is a detailed implementation plan that includes both

       governance and educational matters, all of which are the ultimate responsibility

       of the organizer. The proposal must contain at least the following information:


       (1) identification of the organizer,

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017     Page 7 of 21
(2) a description of the organizer’s organizational structure and governance
plan,

(3) the following information for the proposed charter school:

        (a) name,

        (b) purposes,

        (c) governance structure,

        (d) management structure,

        (e) educational mission goals,

        (f) curriculum and instructional methods,

        (g) methods of pupil assessment,

        (h) admission policy and criteria,

        (i) school calendar,

        (j) age or grade range of students to be enrolled,

        (k) description of staff responsibilities,

        (l) description of the physical plant,

        (m) budget and financial plans,

        (n) personnel plan, including methods for selection, retention, and
        compensation of employees,

        (o) transportation plan,

        (p) discipline program,

        (q) plan for compliance with any applicable desegregation order,

        (r) date when the charter school is expected to:

                 (i) begin school operations, and

                 (ii) have students attending the charter school,


Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 8 of 21
               (s) arrangement for providing teachers and other staff with health
               insurance, retirement benefits, liability insurance, and other benefits, and

       (4) the manner in which the authorizer must conduct an annual audit of the
       program operations of the charter school.

       See Ind. Code § 20-24-3-4 (2017).


[12]   The authorizer reviews and evaluates the application under criteria consistent

       with nationally recognized principles and informs the organizer whether the

       proposal is accepted or rejected. Ind. Code §§ 20-24-3-4.5 (2015) and -9 (2017).

       If the proposal is rejected, the organizer may amend and resubmit the proposal

       to the same authorizer or submit a proposal to another authorizer. Ind. Code §

       20-24-3-11 (2017). If the proposal or amended proposal is accepted, the

       organizer is granted a charter by the authorizer, and the organizer may begin

       operation of the charter school in accordance with the operating plan as

       submitted in its proposal as well as the rights and obligations set forth in its

       charter. Ind. Code § 20-24-3-1 (2013), see also Ind. Code § 20-24-4-1 (2017)

       (setting forth charter requirements).


[13]   The organizer’s duties do not end when the charter is signed and the charter

       school is operational. Once established, each charter school must set annual

       performance targets designed to help the school meet applicable federal, state,

       and authorizer expectations. Ind. Code § 20-24-4-1(b). Moreover, at the time

       period covered by Flanner House’s complaint, the organizer was required each

       year to submit to the department of education information concerning: (1) the

       number of students enrolled in the charter school, (2) the name and address of

       each student, (3) the name of the school corporation in which the student has
       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 9 of 21
       legal settlement, (4) the name of the school corporation, if any, that the student

       attended during the immediately preceding school year, and (5) the grade level

       in which the student will enroll in the charter school. Ind. Code § 20-24-7-2

       (2009) and (2013).


[14]   Additionally, the organizer is the fiscal agent for the charter school and has

       exclusive control of the financial matters of the school and of funds received by

       the school. Ind. Code § 20-24-7-1 (2015). On behalf of a charter school, an

       organizer may apply for and accept independent financial grants and funds

       from sources other than the department of education. Further, an organizer

       must make all applications, enter into all contracts, and sign all documents

       necessary for aid, money, or property received by the charter school from the

       federal government. Ind. Code § 20-24-7-5 (2005). An organizer also may be

       requested at any time to provide to the authorizer the financial reports of the

       school. Ind. Code § 20-24-7-8 (2013).


[15]   Moreover, the organizer is required to publish an annual performance report

       that provides information regarding student enrollment, graduation rate,

       attendance rate, test scores, average class size, the school’s performance

       category, number and percentage of students in special programs, advanced

       placement, course completion, percentage of graduates considered college and

       career ready, school safety, financial information, teacher

       certification/licensing, percentage of grade 3 students reading at grade 3 level,

       number of students expelled, chronic absenteeism, habitual truancy, number of

       students who have dropped out of school, number of in and out of school

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 10 of 21
       suspensions, number of student work permits revoked, and number of students

       receiving an international baccalaureate diploma. Ind. Code §§ 20-24-9-6

       (2005), 20-20-8-8 (2017).


[16]   If an organizer is notified by the authorizer that it is failing to comply with the

       conditions of the charter, applicable federal and state laws, or generally

       accepted fiscal management and government accounting principles, or if the

       school is failing to meet the educational goals set out in the charter, it must

       remedy the deficiencies or face revocation of the school’s charter. Ind. Code §

       20-24-9-4 (2017). The authorizer also has the authority to decline to renew a

       school’s charter. In both instances, the organizer is allowed representation by

       counsel and time to prepare a response, as well as an opportunity to submit

       documents and testimony in support of continuation of the charter school. Ind.

       Code § 20-24-4-3 (2013). In the event of a school closing, the organizer must

       ensure the transfer of all school records, including student records, to the

       department of education. Ind. Code § 20-24-9-4.6 (2017).


[17]   As demonstrated by the statutes, the organizer determines the organization and

       management of the school, receives the charter for the charter school, is

       responsible for the implementation of the charter, is accountable for the

       financial and academic viability of the school, and insures compliance with

       federal and state laws and authorizer expectations. A charter school cannot

       exist without an organizer, and the organizer is required to have nonprofit

       status. Based upon our review of the relationship, responsibilities, duties, and

       authority of a charter school organizer as set out in these statutes, we conclude

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 11 of 21
       that an organizer of a charter school is not an entity separate from the charter

       school. Rather, an organizer and a charter school jointly are the charter school.


[18]   In making this determination, we note the similarity of charter school

       organizers to public school corporations, and we recognize that organizers are

       indeed considered school corporations for certain state and federal funding

       opportunities. Ind. Code § 20-24-7-15 (2016). Public school corporations are

       political subdivisions under the Act with governing bodies (boards) that

       administer the affairs of the school corporations. Ind. Code § 34-6-2-110(9)

       (2007); Ind. Code § 20-26-2-2 (2005). Like charter school organizers, public

       school corporations may take charge of, manage, and conduct the educational

       affairs of the school corporation; employ certain staff; make budgets and

       appropriate and disburse funds; make all applications, enter into contracts, and

       sign all documents necessary for the receipt of aid, money, or property from the

       state, the federal government, or any other source. Ind. Code § 20-26-5-4

       (2016). Additionally, public school corporations are required by Indiana Code

       section 20-20-8-3 (2015) to publish an annual performance report.


[19]   Thus, we conclude that an organizer of a charter school is included in the term

       “charter school” for purposes of Ind. Code § 34-6-2-49(a). Accordingly,

       Flanner School, Inc. was entitled to notice of Flanner House’s claims as




       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 12 of 21
       provided for in the Act, and the trial court properly granted summary judgment
                                        3
       for Flanner School, Inc.


[20]   Understanding that Flanner House gave no notice of its tort claim and having

       determined that a charter school organizer is a “charter school” and entitled to

       notice of Flanner House’s tort claim, we turn to the charter school directors and

       officers named by Flanner House as additional defendants. The notice

       requirement of the Act applies not only to suits against governmental entities

       but also to suits against employees of governmental entities. Ind. Code § 34-13-

       3-3; Davidson v. Perron, 716 N.E.2d 29 (Ind. Ct. App. 1999), trans. denied.


[21]   We further note that the Act prohibits suits against individual board members

       concerning acts taken by the board where the member was acting within the

       scope of the member’s employment. Ind. Code § 34-13-3-5 (2003). A suit filed

       against a board member individually must allege, including a reasonable factual

       basis, an act or omission by the member that is criminal, clearly outside the

       scope of the employee’s employment, malicious, willful and wanton, or

       calculated to benefit the employee personally. Id. Here, Flanner House named

       the directors and officers individually concerning their actions taken as a whole

       board. There were no allegations of individual board members acting outside




       3
         In the Statement of the Facts section of its brief to this Court, Flanner House briefly mentions that Appellee
       Wolley had notice of its claim. See Appellant’s Br. p. 16. To the extent that this could be considered an
       argument of substantial compliance with the notice provision under the Act, Flanner House’s claim is waived
       for failure to present cogent argument and citation to authority. See Thacker v. Wentzel, 797 N.E.2d 342 (Ind.
       Ct. App. 2003) (stating this Court will not consider appellant’s assertion on appeal when appellant fails to
       develop argument and present cogent argument supported by authority); see Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017                        Page 13 of 21
       the scope of their employment or in an improper manner. Thus, entry of

       summary judgment for the directors and officers was also proper based upon

       Flanner House’s failure to provide a notice of tort claim.


                        2. Equal Privileges and Immunities Clause
[22]   By granting summary judgment for the Appellees, the trial court implicitly

       found constitutional the provisions of the Act relating to charter schools.

       Flanner House claims that application of the Act to include not only charter

       schools but also their organizers violates two provisions of the Indiana

       Constitution.


[23]   When a statute is challenged as violating the Indiana Constitution, our standard

       of review is well settled. “A statute is presumed constitutional until the party

       challenging its constitutionality clearly overcomes the presumption by a

       contrary showing.” VanDam Estate v. Mid-America Sound, 25 N.E.3d 165, 168

       (Ind. Ct. App. 2015), trans. denied. If there are two reasonable interpretations of

       the statute, one constitutional and the other not, we will choose the

       interpretation that will uphold the constitutionality of the statute. Sims v. U.S.

       Fid. & Guar. Co., 782 N.E.2d 345 (Ind. 2003). We do not presume the General

       Assembly violated the constitution unless we are compelled to do so by the

       unambiguous language of the statute. VanDam Estate, 25 N.E.3d 165. This

       Court should nullify a statute on constitutional grounds only where such result

       is clearly rational and necessary. Id.




       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 14 of 21
[24]   First, Flanner House asserts that extending the notice and governmental

       immunity provisions of the Act to charter schools and their organizers violates

       the equal privileges and immunities clause. Article I, section 23 of the Indiana

       Constitution provides, “The General Assembly shall not grant to any citizen, or

       class of citizens, privileges or immunities, which, upon the same terms, shall

       not equally belong to all citizens.” To determine a statute’s validity under this

       provision, we employ a two-part test: 1) the disparate treatment accorded by

       the legislation must be reasonably related to inherent characteristics that

       distinguish the unequally treated classes, and 2) the preferential treatment must

       be uniformly applicable and equally available to all persons similarly situated.

       Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195 (Ind. 2016). Both

       parts of the test must be satisfied for the statute to be constitutional. Id. In

       evaluating a statute under this test, we must give considerable deference to

       legislative discretion. Giles v. Brown Cty., 868 N.E.2d 478 (Ind. 2007). Further,

       the burden is on the party challenging the statute to negate every conceivable

       basis for disparate treatment of two classes. Whistle Stop Inn, Inc., 51 N.E.3d

       195.


[25]   Flanner House contends the disparately treated classes are charter schools,

       private schools, and nonprofit corporations. Flanner House, however, does not

       engage in any meaningful discussion or analysis of the required two-part test.

       Instead, it merely argues that allowing charter schools and their organizers to be

       protected by the Act is unfair, and it characterizes charter schools as having

       only public school “status” for the purpose of dealing with students and their


       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 15 of 21
       parents but maintains that charter schools are actually private, nonprofit

       corporations with regard to their transactions with other businesses.

       Appellant’s Br. p. 29.


[26]   Charter schools are neither private schools nor nonprofit corporations; rather,

       by the plain terms of the statute creating them, they are public schools. See Ind.

       Code § 20-24-4-1. Contrary to Flanner House’s argument, this legislative

       designation does not change depending on with whom the charter school is

       dealing. Further, although an organizer of a charter school is an entity that has

       been determined by the Internal Revenue Service to be operating under

       nonprofit status, see Ind. Code § 20-24-1-7, it is not a nonprofit entity separate

       from the school. Rather, as we determined earlier in this opinion, an organizer

       and a charter school, together, are the charter school. See Issue 1, supra. As

       discussed previously in this opinion, charter schools must be organized and

       operate according to a charter agreement and are subject to extensive,

       particularized statutes for their governance and educational matters with a

       considerable level of governmental oversight. These stringent statutory

       guidelines and requirements apply only to charter schools and their organizers

       who, although having the status of a nonprofit entity, are a very specific type of

       nonprofit performing under a specific charter agreement as the organizer,

       administrator, and fiscal agent of a charter school. These characteristics are

       unique and inherent to charter schools, and they distinguish charter schools

       from both private schools and other nonprofit corporations.




       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 16 of 21
[27]   In addition, the disparate treatment conferred by the legislation must be

       reasonably related to the inherent characteristics differentiating the classes.

       Whistle Stop Inn, Inc., 51 N.E.3d 195. As our Supreme Court has explained:


               Legislative classification becomes a judicial question only where
               the lines drawn appear arbitrary or manifestly unreasonable. So
               long as the classification is based upon substantial distinctions
               with reference to the subject matter, we will not substitute our
               judgment for that of the legislature; nor will we inquire into the
               legislative motives prompting such classification.
       Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).


[28]   The matter of developing the public school system rests with the legislature,

       which has considerable discretion as to the methods of organization and

       administration of the system. Hoagland v. Franklin Twp. Cmty. Sch. Corp., 27

       N.E.3d 737 (Ind. 2015). In exercising this discretion, the legislature established

       charter schools as unique education entities that exist as public schools. The

       legislature also classified charter schools as government entities for purposes of

       the Act. In fact, all public schools are classified as government entities under

       the Act. See Ind. Code § 34-6-2-110(9).


[29]   The Act was adopted to establish procedures for cases involving the prosecution

       of tort claims against governmental entities. Hasty v. Floyd Mem’l Hosp., 612

       N.E.2d 119 (Ind. Ct. App. 1992). By establishing notice requirements and

       limitations on recovery from government entities, including public schools, the

       Act advances the legislative policies of protecting the State’s finances while

       ensuring that public employees can exercise their independent judgment


       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 17 of 21
       necessary to carry out their duties without the threat of civil litigation over

       decisions they make within the scope of their employment. Noble Cty. v. Rogers,

       745 N.E.2d 194 (Ind. 2001). By their very definition, charter schools are public

       schools, and, as such, they are reasonably classified by the legislature as

       governmental entities under the Act as are traditional public schools. See Meury

       v. Eagle-Union Cmty. Sch. Corp., 714 N.E.2d 233 (Ind. Ct. App. 1999) (citing Ind.

       Code § 34-13-3-8 and stating that notice provision of Act applies to public

       school corporations and their employees).


[30]   Moreover, the legislative intent underlying the establishment of charter schools

       was to provide innovative and autonomous programs that serve the different

       learning styles and needs of public school students, offer public school students

       appropriate and innovative choices, provide varied opportunities for

       professional educators, allow public schools freedom and flexibility in exchange

       for exceptional levels of accountability, and provide parents, students,

       community members, and local entities with an expanded opportunity for

       involvement in the public school system. Ind. Code § 20-24-2-1 (2005). By

       extending the liability protections of the Act to charter schools, the legislature

       furthered its overall purpose of providing innovative programs for public school

       students and educators while preserving the public treasury and protecting

       public employees acting within the scope of their employment. We conclude

       the disparate application of the Act in this instance constitutes treatment that is

       reasonably related to the inherent characteristics that differentiate charter

       schools from private schools and other nonprofit corporations.


       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 18 of 21
[31]   As to the second part of the test, Flanner House does not dispute that the

       preferential treatment of charter schools under the Act is uniformly applicable

       and equally available to all charter schools. Flanner House has not met its

       burden to negate every conceivable basis which might support the
                          4
       classification. We conclude that application of the notice and liability

       limitations of the Act to charter schools is constitutional under section 23.


                                           3. Open Courts Clause
[32]   Flanner House asserts that extending the immunity under the Act to charter

       schools and their organizers will violate the open courts clause of the Indiana

       Constitution. The open courts clause provides: “All courts shall be open; and

       every person, for injury done to him in his person, property, or reputation, shall

       have remedy by due course of law. Justice shall be administered freely, and

       without purchase; completely, and without denial; speedily, and without

       delay.” Ind. Const. art. I, § 12.


[33]   The courts of our state have uniformly held that in cases involving injury to

       person or property, article I, section 12 does not prevent the legislature from

       modifying or restricting common law rights and remedies. McIntosh v. Melroe




       4
         In arguing that application of the Act in this case violates our state’s equal privileges and immunities clause,
       Flanner House states that the damages it sustained stem from its contractual relationship with Flanner School
       Inc. and that applying the Act to charter schools and their organizers improperly gives the government a
       competitive advantage in its commercial dealings, such as entering leases. These contentions are not
       applicable here as the Act provides immunity for governmental entities only with regard to civil actions in
       tort. See Ind. Code § 34-13-3-1; see also Orem v. Ivy Tech State Coll., 711 N.E.2d 864 (Ind. Ct. App. 1999)
       (holding the Act is inapplicable to breach of contract cause of action), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017                          Page 19 of 21
       Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972 (Ind. 2000). Yet, the

       legislature’s actions in this regard are not without limits; any legislative

       alteration must not interfere with constitutional rights. Martin v. Richey, 711

       N.E.2d 1273 (Ind. 1999). Legislation that restricts a complete tort remedy must

       be a rational means to achieve a legitimate legislative goal. Id.


[34]   As we have noted in this opinion, one of the primary concerns the Act was

       intended to address was protection of the public treasury, and by extension the

       taxpayers, from a multitude of tort lawsuits and the possibility of enormous

       monetary liabilities if government entities were held legally accountable in civil

       litigation in the same fashion as private entities and persons. VanDam Estate, 25

       N.E.3d 165. With regard to governmental immunity in the Act, our supreme

       court has stated, “In tort cases, the source of authority or lack thereof to sue the

       State originally arose from rights at common law, not from rights contained in

       the Constitution. Thus, it is within the legislature’s authority to expand or

       restrict the scope of sovereign immunity through the Tort Claims Act.” State v.

       Rendleman, 603 N.E.2d 1333, 1337 (Ind. 1992). Rendleman concerned a suit

       against the State for damages allegedly sustained in a motor vehicle accident

       involving Rendleman and an Indiana State Trooper. In holding that the law

       enforcement immunity section of the Act was a constitutional exercise of

       legislative authority, the Court stated: “That [the law enforcement immunity

       section] may result in Rendleman bearing the full economic burden of his

       injuries and damages without the ability to insure himself against such losses, is

       a matter of policy for the legislature, not this Court, to address.” Id.


       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 20 of 21
[35]   Similarly, the extension of the immunity provision of the Act to a charter

       school and its organizer, which we determined are, jointly, a charter school, is a

       rational means to achieve the legitimate legislative goal of protecting the public

       treasury. Accordingly, we conclude that Indiana Code sections 34-13-3-3 and

       34-6-2-49(a) reflect a proper exercise of the legislature’s authority and do not

       violate article I, section 12 of the Indiana Constitution.


[36]   Having concluded that the trial court properly entered summary judgment for

       the Appellees and that there are no constitutional violations, we affirm the trial

       court’s judgment.


[37]   Judgment affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017   Page 21 of 21
