Indiana Court Decisions: Jan. 25-Feb. 7, 2024

Indiana Supreme Court

Jan. 25

Penny Korakis v. Memorial Hospital of South Bend, Michael R. Messmer, D.O., and David A. Halperin, M.D.

23S-CT-109

Justices reverse summary judgment for doctor, clarify requirements of medical experts’ affidavits

A doctor must face a patient’s medical malpractice complaint after the Indiana Supreme Court overturned a summary judgment ruling. In its decision, the high court clarified that a medical expert is not required to expressly state the applicable standard of care in an affidavit.

In August 2017, Penny Korakis was taken to Memorial Hospital of South Bend for pain from her left hand to her left shoulder. She received emergency care and treatment from Dr. David A. Halperin, who diagnosed her with an acute soft tissue injury.

Korakis returned a week later, this time receiving treatment from a nurse practitioner who ordered additional X-rays of her left shoulder, elbow and wrist. The nurse practitioner referred Korakis to treatment with Dr. Michael R. Messmer.

Messmer ordered more X-rays of Korakis’ wrist but did not order a magnetic resonance imaging exam of her left elbow. He also referred her to physical therapy.

Korakis began physical therapy but returned to Messmer due to lasting and worsening pain in her left elbow. A nurse from Messmer’s office called Korakis and told her she could choose to return to physical therapy, wait two weeks to schedule an MRI or see Dr. John Kelbel.

Korakis chose to see Kelbel, who noted that the initial X-rays revealed an occult radial fracture in her left elbow. The injury had enough time to heal and had likely reached maximum medical improvement. He ordered an MRI of her left elbow along with her right ankle.

Korakis returned to Messmer to discuss the results from the MRIs. He explained that the results were fine, but after she informed him about the possible occult radial fracture, he reported in his notes that she may have suffered a facture.

In 2019, Korakis filed a proposed complaint with the Indiana Department of Insurance against Halperin, Messmer and the hospital, alleging the care and treatment she received from them was negligent and below the standard of care.

A medical review panel concluded that the evidence didn’t support a finding that the defendants failed to meet the applicable standard of care as charged in the complaint.

Korakis then filed a lawsuit in which she alleged the defendants failed to properly identify, diagnose and treat her injuries, which included broken bones that required corrective surgery. She also claimed negligence and negligent infliction of emotional distress that resulted in economic and noneconomic damages.

Halperin moved for summary judgment based on the MRP opinion along with Messmer and the hospital.

Korakis designated a medical expert affidavit from Dr. James E. Kemmler, who testified about the relevant medical record and the chronology of her treatment.

Halperin argued that the affidavit was insufficient because Kemmler did not state whether he was familiar with the applicable standard of care for an emergency medicine physician in the same or similar circumstances.

The St. Joseph Circuit Court granted both summary judgment motions in favor of the defendants.

Following an unsuccessful motion to correct error, Korakis appealed to the Court of Appeals of Indiana. The appellate court affirmed the trial court’s judgment in November 2022.

The high court granted transfer last May, then addressed the applicable standard of care in the Jan. 25 opinion.

The court cited Jordan v. Deery, 609 N.E.2d 1104 (Ind. 1993), which it embraced. It also retired the portion of Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992), that required a medical expert to expressly state the applicable standard of care in his affidavit.

“Thus, an express statement of the standard was not required to defeat summary judgment. Rather, it could be inferred based on the content in the affidavit,” Justice Mark Massa wrote.

The high court then found that Kemmler’s affidavit created a genuine issue of material fact as to Messmer’s alleged breach of the applicable standard of care.

“In sum, Dr. Kemmler put forth a detailed qualified judgment about the care Dr. Messmer provided to Korakis,” Massa wrote.

The high court thus reversed summary judgment for Messmer. However, it affirmed summary judgment for Halperin and the hospital.

All justices concurred in Penny Korakis v. Memorial Hospital of South Bend, Michael R. Messmer, D.O., and David A. Halperin, M.D., 23S-CT-109.

__________

Jan. 30

Tailar L. Spells v. State of Indiana

23S-CR-232

IN justices: Cash bail can be retained for representation costs, but other fines, fees, costs require hearing

State statute authorizes trial courts to retain cash bail for the payment of public defender fees, but an indigency hearing is required before the cash can be retained for most other fines, fees and costs.

That ruling came in Tailar L. Spells v. State of Indiana, 23S-CR-232.

The case began in November 2021, when Tailar Spells spit on a police officer who was trying to break up a fight outside an Indianapolis bar. Spells was arrested and charged with Level 6 felony battery by bodily waste and Class A misdemeanor resisting law enforcement.

A woman named Diane Rolle paid Spells’ $250 cash bond. Rolle and Spells also signed an agreement, pursuant to Indiana Code § 35-33-8-3.2, permitting the Marion Superior Court to retain the cash to pay the costs of representation and fines, costs, fees and restitution.

A public defender was appointed for Spells, which came with a $100 supplemental fee.

Spells was convicted at a bench trial on the battery charge and was sentenced to 365 days, with 363 days suspended and 40 hours of community service. She was also ordered to pay a $20 fine and $185 in fees and costs, although she was found indigent as to probation fees.

Later, the trial court granted the probation department’s request to apply $245 from Spells’ cash bond to her fine, costs and fees, leaving $60 still owed. That amount has since been paid, according to the chronological case summary.

Spells completed her community service, and her conviction was reduced to
a misdemeanor.

She then appealed, arguing the trial court had not adequately inquired into her ability to pay the fines, costs and fees.

But the Court of Appeals of Indiana affirmed, relying on Wright v. State, 949 N.E.2d 411 (Ind. Ct. App. 2011). It also found that Spells’ payment of the outstanding $60 balance mooted her appeal as to that money.

The Indiana Supreme Court granted transfer to Spells’ case, which the justices partially remanded.

Justice Christopher Goff began with the agreement Spells made under I.C. 35-33-8-3.2(a), which the justices found “permits the retention of public-defender costs — but not most other fines, costs, or fees — without an indigency determination.”

Specifically, the statute provides that a trial court can require a defendant and the person depositing bail to sign an agreement authorizing the court to retain the deposit “to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.”

Spells argued that the phrase “publicly paid costs of representation” did not include her $100 supplemental public-defender fee. She also said the statute only allows retention of costs that the trial court may order after an indigency determination.

The justices disagreed with both of those arguments, holding instead that the court here had the authority to retain the $100 fee from Spells’ cash bail. They pointed to I.C. 35-33-7-6(c), which holds that if the court finds a defendant “is able to pay part of the costs of representation,” the court “shall order” a $100 supplemental fee.

In a footnote, the justices added that “the supplemental public-defender fee need not be assessed at the initial hearing, but can be left for the sentencing hearing.”

Further, “(R)epresentation costs are not, in most cases, costs ‘that the court may order the defendant to pay if the defendant is convicted,’” Goff wrote. “Rather, they may be imposed under two code provisions whether the defendant is convicted or not.

“… From this textual and structural analysis, we hold that a trial court may retain the whole of a defendant’s incremental representation costs without making the indigency determination that is otherwise required for assessment of a supplemental public-defender fee,” the court held, following Wright and Obregon v. State, 703 N.E.2d 695.

But the justices emphasized the permissive language of the statute, which “allows” the court to retain cash for representation costs. Also, in a footnote, they differentiated I.C. 35-33-8-3.2(a)(2) regarding 10% cash bail agreements.

“Here, the trial court was required to make an indigency determination under Indiana Code section 35-33-7-6.5 before imposing Spells’s supplemental public-defender fee. However, the trial court was also authorized by the cash-bail agreement to apply $100 from Spells’s cash bail to the cost of her defense without inquiring into her ability to pay,” Goff wrote. “It is, therefore, a moot question in this case whether the trial court made an adequate indigency determination respecting the supplemental fee.”

But regarding most other costs, fines and fees, the high court found that an indigency hearing is required before retaining cash bail, pointing to I.C. 35-38-1-18(a), 33-37-2-3(a) and 33-37-4-1.

“However,” Goff added, “the $2 jury fee authorized by code section 33-37-5-19 is not part of the ‘costs’ for which a defendant is liable, because it is not prescribed by code section 33-37-4-1. No indigency hearing appears, therefore, to be necessary for the jury fee.”

The question then became whether Spells’ cash bail agreement supplanted the indigency hearing requirement — a question the justices answered with a no.

“The key phrase in the cash-bail statute refers to the expenses ‘that the court may order the defendant to pay if convicted,’” Goff wrote. “‘May’ could refer here to what the court is permitted or authorized to do, or to what it might possibly do.

“… We find the latter reading the more natural of the two: the defendant agrees to retention of whatever fines, costs, and fees the trial court might possibly order — under its authority granted elsewhere,” Goff continued. “In short, this is a statute dealing with the disposition of cash-bail, not one authorizing the imposition of fines, costs, and fees without hearings.

“… The cash-bail statute does not, therefore, provide trial courts as much authority to retain money for fines, costs, or fees as it does for publicly paid costs of representation.”

Finally, the justices examined whether the trial court made an adequate indigency determination on the retention of $143 in fines, fees and costs in Spells’ case. The court reached that amount by considering the $245 deducted from Spells’ cash bail, minus $100 in representation costs and the $2 jury fee.

First, the justices disagreed with the Court of Appeals that Spells’ appeal of the $60 she paid is moot.

“Here, reimbursement of Spells’s $60 would be effective relief, so her appeal remains justiciable as to the $60 balance payment,” Goff wrote.

The court then pointed to I.C. 35-33-7-6.5(a), which requires courts to consider assets, income and necessary expenses in making an indigency determination.

“We reiterate that it is incumbent on trial courts to consider these factors,” Goff wrote. “This means that if the parties fail to provide the information, courts themselves must make inquiries calculated to bring out the necessary evidence.”

As for appellate review, “If one of the mandatory factors, especially either the defendant’s income or necessary expenses, is passed over, or if the inquiry is unreasonably superficial, it may be appropriate to vacate and remand for another hearing.”

In Spells’ case, the justices determined remand is necessary.

“We find it a close question whether the trial court’s inquiries were adequate under the standard we set out today,” Goff wrote, noting that “the court entered its order without knowing for sure the amount of Spells’s income or any necessary expenses like rent or prenatal healthcare.”

“… We think that the trial court, having found Spells indigent as to representation and probation fees, should have investigated more deeply just what Spells could afford to pay in fines, costs, and other fees,” the high court concluded. “On these facts and under the standard announced in this opinion, we conclude that the trial court did not undertake a sufficient indigency inquiry.”

Court of Appeals of Indiana

Jan. 26

David Freed v. Elizabeth Freed

23S-DC-129

On issue of 1st impression, COA lays out test for deciding who gets pre-embryo from fertility treatments

Ruling on an issue of first impression, the Court of Appeals of Indiana has upheld the award of a pre-embryo to a woman in a divorce case, laying out a test for trial courts to apply when faced with disposition of a pre-embryo.

The appellate court found that “the trial court applied the appropriate test and considered the appropriate factors” in the case involving David and Elizabeth Freed.

The Freeds hoped to have two children, so they visited a fertility doctor. The couple also signed an agreement with a cryopreservation company.

The Freeds went through multiple cycles of in vitro fertilization and ultimately had one child.

They also had one remaining pre-embryo.

Elizabeth filed for divorce in March 2022, and the parties’ partial settlement agreement resolved all issues except disposition of the pre-embryo.

Elizabeth requested that the Johnson Circuit Court award her the pre-embryo, which she hoped would result in another child.

But David asked the trial court to award him the pre-embryo so he could ask the storage facility to dispose of it.

The trial court found that the cryopreservation contract offered no directive for the disposition of the pre-embryo if the Freeds’ marriage was dissolved.

Further, because Indiana lacks a statutory scheme or caselaw on that issue, the court looked to other jurisdictions for guidance.

Ultimately, the trial court ruled that Elizabeth’s interest in using the pre-embryo to conceive a child outweighed David’s interest in avoiding parenthood.

David appealed, raising the issue of whether the trial court’s award of the pre-embryo to Elizabeth over his objection violated his fundamental right of procreation.

Rejecting that argument, Judge Dana Kenworthy wrote, “Father’s argument assumes but does not provide legal authority to explain how the trial court’s order amounts to state action.”

Indiana law supports the trial court’s determination that pre-embryos deserve special respect, Kenworthy wrote.

She also noted that generally, other states have taken three approaches in pre-embryo disposition cases: the contract approach, the balancing test approach and the contemporaneous mutual consent approach.

While the contract approach “is the preferred method of deciding pre-embryo disposition cases,” the COA ruled that if that approach does not dissolve the dispute, trial courts should seek to balance the parties’ interests.

“The balancing approach reflects Indiana trial courts’ role in dissolution proceedings: Mother and Father have an interest in disposition of the pre-embryo after their divorce, and the trial court must weigh their interests and award the pre-embryo ‘in a just and reasonable manner,’” Kenworthy wrote, citing Indiana Code § 31-15-7-4(b).

Because pre-embryos are entitled to special respect, factors beyond those outlined in that section of Indiana Code must be considered, she added.

The additional factors include the intended use of the pre-embryos by the party seeking to preserve them; the reasonable ability of the party seeking implantation to have children through other means; the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; the potential burden on the party seeking to avoid becoming a genetic parent; either party’s bad faith attempt to use the pre-embryos as leverage in the dissolution proceeding; and other considerations relevant to the parties’ unique situation.

“Father appeals the trial court’s use of the balancing test, not the trial court’s balancing of the factors in favor of Mother. And although we disagree with the trial court’s statement that Father is relieved of the potential burden of child support, the error is harmless,” Kenworthy wrote. “Father’s testimony focused on the emotional — not financial — burden of raising a child outside of marriage. He explained his preference for discarding the pre-embryo arises from ‘the fact that [he] would not be present … in that child’s life’ because he and Mother would be divorced.

“Father described how it was already difficult for him to raise G. in that context,” Kenworthy continued. “Father did not provide evidence of — and the trial court placed little emphasis on — any financial burden an additional child would place on Father. Further, the pre-embryo has not resulted in the birth of a child, and any questions regarding support are hypothetical.

“The parties are litigating the disposition of the pre-embryo, not potential support of a potential child. That issue would require a separate hearing when the issue is squarely before the court.”

Judges Peter Foley and Paul Felix concurred in David Freed v. Elizabeth Freed, 23A-DC-129.

__________

Jan. 31

Amanda Ping v. Margaret Inman, M.D.

23A-CT-251

Evidentiary hearing ordered after juror fails to disclosure knowledge of expert witness

A trial court must hold an evidentiary hearing to determine how familiar a potential juror in a medical malpractice case was with a doctor who was called an expert for the defense, the Court of Appeals of Indiana has ruled.

In Amanda Ping v. Margaret Inman, M.D., 23A-CT-251, Amanda Ping was a patient of Dr. Margaret Inman, who performed an exploratory laparoscopy on Ping.

In 2017, Ping filed a proposed medical malpractice complaint with the Indiana Department of Insurance alleging that Inman had sewn Ping’s vaginal cuff to her bladder during the procedure.

A medical review panel found no malpractice, and Ping filed suit with the Marion Superior Court.

During voir dire, Juror 11 indicated that she knew of Dr. Aaron Ludwig and Dr. Maret Cline, two of Ping’s experts. But the juror did not indicate that she recognized one of Inman’s experts, Dr. William Cheadle.

Juror 11 went on to explain that she worked with doctors and nurses as a medical device vendor. She was ultimately seated on the panel.

The jury ruled in favor of Inman, and the trial court allowed counsel to speak with the jurors.

While there is no record of that meeting, counsel for both Ping and Inman provided affidavits claiming that Juror 11 admitted to knowing of Cheadle.

Ping moved to correct error, claiming she was entitled to a new trial and an evidentiary hearing based on juror misconduct.

The trial court denied that motion without a hearing, but the Court of Appeals reversed.

“Because the record shows that there was a possibility of juror bias, the trial court should have held an evidentiary hearing,” Judge Rudolph Pyle wrote, likening the case to Barnes v. State, 330 N.E.2d 743 (Ind. 1975), Lopez v. State, 527 N.E.2d 1119 (Ind. 1988), and Diehl v. Clemons, 12 N.E.3d 285 (Ind. Ct. App. 2014), trans. denied.

“At the evidentiary hearing, the trial court can determine the extent of Juror 11’s knowledge of Dr. Cheadle and if it interfered with her ability to render a verdict solely on the evidence presented at trial,” Pyle wrote. “Much like we had previously held in Diehl, ‘the inquiry that should have occurred during voir dire must now occur in a post-trial evidentiary hearing.’

“Accordingly,” the COA concluded, “we remand to the trial court with instructions to hold an evidentiary hearing to determine whether Juror 11 was actually biased or prejudiced against Ping due to her familiarity with Dr. Cheadle through her work as a medical device vendor.”

__________

Feb. 2

Willow Haven on 106th Street, LLC v. Hari Nagireddy and Saranya Nagireddy

22A-PL-2931

COA upholds preliminary injunction against construction of Carmel senior living group home

Construction of a proposed senior group home in Carmel cannot move forward after a split panel of the Court of Appeals of Indiana affirmed a preliminary injunction.

The case began in December 2020, when Willow Haven on 106th Street LLC applied for a permit to build the senior home at 2080 W. 106th St. in Carmel.

The home, a residential structure, would hold up to 10 senior citizens who have been diagnosed with Alzheimer’s disease or other forms of dementia. The plan was to provide food and entertainment to the residents, but not medical care, so Willow Haven did not obtain any sort of medical or caregiver license.

But Hari and Saranya Nagireddy lived directly adjacent to the lot where the home was being built, and they told the city they believed it would be an unlicensed assisted living facility in violation of the city’s Unified Development Ordinance. According to the Nagireddys, that meant Willow Haven needed to obtain a variance from the local Board of Zoning Appeals.

But the city declined to issue a stop-work order, citing Mike Hollibaugh, the city’s director of the department of community services who had previously determined that a nearly identical proposal for a group home did not require a variance.

The Nagireddys responded with a complaint for injunctive relief against Willow Haven, which the Hamilton Superior Court granted.

Willow Haven filed an interlocutory appeal, but the Court of Appeals affirmed.

Willow Haven’s first argument on appeal was that the Nagireddys weren’t entitled to a preliminary injunction because they did not timely pursue administrative challenges to the building permit.

But pointing to Bixler v. LaGrange County Bldg. Dept., 730 N.E.2d 818 (Ind. Ct. App. 2000), Chief Judge Robert Altice wrote, “They (the Nagireddys) are adjoining landowners who are not responsible for monitoring the issuance of building permits for which they have not applied. Here, they had no notice of the issuance of the building permit until after it was too late to appeal such issuance to the BZA. Under these circumstances, the Nagireddys were not required to exhaust administrative remedies with the BZA before pursuing declaratory and injunctive relief with the trial court.”

As for the injunction itself, the COA ruled, “Clearly, the Home does not fall within the UDO’s black-letter definition of group home as it is not a licensed facility of any kind.”

Further, “Even assuming the Home is a statutorily authorized housing with services establishment, whether such is a permitted use in an S1 (single family residential) district or the result of a reasonable accommodation under federal law is a matter to be addressed and decided by the BZA.”

Finally, “The trial court concluded that enforcing the UDO as it is written and enjoining further construction of the Home serves the public interest. We agree,” Altice concluded.

“The UDO states that an impermissible use is a public nuisance. Willow Haven’s intended use for the Home is not a permitted use under the express language of the UDO. Under the circumstances presented, imposition of a preliminary injunction best serves the public interest.”

Judge Peter Foley concurred.

But in a dissent, Judge Leanna Weissmann said the majority’s ruling has two flaws.

First, she wrote, “Because Carmel adopted its UDO three years before the legislature added this category of group homes, it is of no moment that the UDO fails to reference them.”

And second, “The majority’s definition of group home risks illogical application by allowing residential zoning for licensed group homes but requiring variances for unlicensed group homes which closely emulate traditional family environments.”

“Carmel interpreted its UDO to allow Willow Haven’s construction within its S1 zoning,” Weissmann wrote. “Because this interpretation is correct, I would reverse and remand for the trial court to vacate the preliminary injunction.”

The case is Willow Haven on 106th Street, LLC v. Hari Nagireddy and Saranya Nagireddy, 22A-PL-2931.

__________

Bryan J. Jackson v. Samantha DeJean, Ryan DeJean

23A-DC-1410

New trial ordered in custody dispute

A new trial has been ordered in a Warrick County custody dispute after the Court of Appeals of Indiana determined that a successor judge abused her discretion when ruling based only on a review of prior transcripts.

Mother S.D. and R.D. were married for seven years and had two daughters together.

During the marriage, S.D. became pregnant with M.D. R.D. believed that M.D. was his son, but shortly after his birth, R.D. took a paternity test and learned that he was not M.D.’s biological father.

S.D. and R.D.’s marriage was dissolved a year later.

In fall of 2019, S.D., her two daughters and M.D. moved in with B.J., and in February 2020, B.J. filed a petition to establish paternity of M.D.

S.D. and B.J. were married in July 2020 and had another child.

In January 2021, S.D. filed a petition to dissolve her marriage to B.J. Also, she and R.D. modified their dissolution decree to agree that M.D. was a child born of the marriage.

The Warrick Superior Court approved the modification, and R.D. began paying child support for M.D. The trial court also consolidated the paternity and dissolution cases for the purpose of conducting hearings.

In August, R.D. filed a motion to intervene in both cases and argued that he was M.D.’s legal custodian. The trial court granted his motion to intervene in the paternity case.

The court held evidentiary hearings across several days in 2022, then decided S.D. would have joint custody of M.D. while B.J. would have parenting time with the children. R.D. received no custody or visitation rights to M.D.

The court also ordered B.J. to pay $207 in child support per week, and it found that the de facto custodian statute did not give the court authority to grant visitation between R.D. and M.D.

Shortly after issuing the final orders, the trial judge resigned.

Before the successor judge was appointed, S.D. and R.D. filed joint motions to reconsider and correct error. They argued that the trial court’s ruling was not supported by evidence, and that it erred as a matter of law when it concluded R.D. was not M.D.’s de facto custodian.

The successor judge held a hearing on S.D. and R.D.’s motions and informed them she would listen to the recorded hearings before ruling on the motions. Then, the court held another hearing at which B.J. argued it should deny the motions because the prior judge was in a better position to weigh the evidence after observing the demeanor of the witnesses.

The trial court granted S.D. and R.D.’s motions to reconsider and to correct error in the paternity case but concluded that a new trial was not necessary. It also found that the trial court erred in its previous ruling and that B.J. is not fit to have custodial rights to M.D.

Further, the trial court found that it was in M.D.’s best interest to award equal legal and physical custody to both S.D. and R.D. B.J. would have no custody rights to M.D. but would have supervised parenting time.

The court later issued a separate order granting S.D.’s post-trial motion in the dissolution proceeding.

B.J. filed his appeal, raising the issue of whether the successor trial judge erred in reweighing the evidence and credibility of the witnesses.

The appellate court found an abuse of discretion, determining the successor judge did not have an opportunity to hear the evidence and observe the demeanor of witnesses for herself when she didn’t hold a new evidentiary hearing.

“For all of these reasons, the trial court abused its discretion when it deviated from the direction provided under Trial Rule 63(A) and issued new findings of fact and new conclusions of law based only upon a review of the transcripts,” Judge Paul Mathias wrote.

The appellate court thus reversed the trial court’s orders granting S.D.’s and R.D.’s post-trial motions and remanded for a new consolidated trial on the parenting time and custody issues presented by S.D. and B.J.’s divorce case and paternity case concerning M.D.

Judges Elizabeth Tavitas and Peter Foley concurred in Bryan J. Jackson v. Samantha DeJean, Ryan DeJean, 23A-DC-1410.

__________

In re the Petition for Expungement of R.L.: Indiana Law Enforcement Training Board v R.L.

23A-XP-144

COA reverses declaratory judgment for officer facing discipline whose arrest was expunged

The Court of Appeals of Indiana has reversed declaratory judgment entered in favor of a law enforcement officer facing discipline following his arrest, even though that arrest was expunged.

The officer, R.L., was arrested in July 2021 and charged with a criminal offense.

In April 2022, the Indiana Law Enforcement Training Board sent a letter to R.L. stating that it had “learned of the event that may lead to the revocation of [his] Indiana Law Enforcement Basic Training Certification and authority to act as a law enforcement officer.”

In July 2022, R.L. petitioned to expunge all records associated with his arrest.

He claimed that he was charged with operating a vehicle with an alcohol concentration equivalent to at least .08 but less than .15, and it was dismissed.

The Martin Circuit Court expunged the records.

R.L. then sent a letter to the board claiming that the anti-discrimination statute, Indiana Code § 35-38-9-10, prohibited it from using the arrest as a basis to deny him his license.

He further asserted that the board’s failure to immediately dismiss the disciplinary charges subjected it contempt proceedings under the anti- discrimination statute.

The board did not dismiss its action, so R.L. filed a motion requesting a declaratory judgment concerning the expungement of his arrest record.

In August 2022, the trial court entered a declaratory judgment in favor of R.L.

When the trial court issued the judgment, the board was not a party to the cause.

The board then intervened and argued that it was entitled to an opportunity to be heard.

It also argued that the trial court erred in entering judgment because, under Whaley v. Med. Licensing Bd. of Ind., 184 N.E.3d 721 (Ind. Ct. App. 2022), the anti-discrimination statute does not apply, so the board was free to conduct disciplinary proceedings regarding the events of the day R.L. was arrested without relying on the expungement records.

The trial court vacated the declaratory judgment and held a hearing.

The court then again granted the requested declaratory judgment in favor of R.L.

In its written judgment, the trial court determined that the anti-discrimination statute prohibited the board from using any facts from the expunged arrest as a basis to revoke or deny R.L.’s license to act as a law enforcement officer.

The board then appealed the trial court’s judgment.

The appellate court looked to Whaley in making its determination.

In that case, a physician was subjected to restrictions on her medical license due to a conviction that was later expunged. She argued that under the anti-discrimination statute, the restrictions were unlawful discrimination because her conviction had been expunged.

The appellate court ultimately concluded that the licensing authority could maintain restrictions on the professional license without running afoul of the anti- discrimination statute.

The COA reached a similar conclusion in this case, reversing declaratory judgment for R.L.

“We conclude that, although the Board must not consider the expunged arrest records in its proceedings, the Board may consider independent evidence of the facts underlying those arrest records,” Judge Peter Foley wrote.

Chief Judge Robert Altice and Judge Melissa May concurred in In re the Petition for Expungement of R.L.: Indiana Law Enforcement Training Board v. R.L., 23A-XP-144.•