Indiana Court Decisions – July 15-28, 2021

7th CircuitCourt of Appeals

July 19

Civil Plenary-Death Penalty/Habeas Relief

Chadrick Fulks v. T.J. Watson

20-1900

An incarcerated man waiting on federal death row has for the third time unsuccessfully sought relief from capital punishment. This time, the 7th Circuit Court of Appeals rejected his argument under the “savings clause” that recent changes in clinical diagnostic standards show that he is intellectually disabled and ineligible for the death penalty.

In 2004, Chadrick Fulks pleaded guilty to several federal charges, including two death-eligible offenses arising from the carjacking, kidnapping and death of Alice Donovan in 2002. Fulks, now located at the U.S. Penitentiary in Terre Haute, had escaped from a Kentucky jail with a fellow inmate before killing Donovan.

Prior to his third attempt at seeking relief, Fulks had also unsuccessfully sought to be taken off death row in his direct appeal and subsequent post-conviction petition brought under 28 U.S.C. § 2255.

Although numerous experts explained that Fulks suffered from borderline intelligence with IQ scores ranging from 75 to 79, along with moderate brain and cognitive impairments, he stopped short of arguing that he was intellectually disabled. But in the case at hand, Fulks invoked 28 U.S.C. § 2241, the last resort “savings clause” in § 2255(e), and the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), arguing that recent changes in clinical diagnostic standards show that he is — and since at least age 18 has been — intellectually disabled and therefore ineligible for the death penalty.

The Indiana Southern District Court denied Fulks’ § 2241 petition as procedurally barred by 28 U.S.C. § 2255(e) and concluded that because Fulks failed to show a structural problem with § 2255, he could not use § 2241 to raise his Atkins claim. Affirming the district court, a panel of the 7th Circuit agreed in Chadrick Fulks v. T.J. Watson, 20-1900, that Fulks cannot now pursue his Atkins claim under § 2241.

It rejected Fulks’ argument that he can pursue his Atkins claim through § 2241 because the recent adjustments to present day legal and clinical diagnostic standards came after his sentencing and § 2255 petition. That means he could not have pursued or prevailed on his intellectual disability claim until now, Fulks contended.

“But Fulks cannot satisfy the saving clause’s requirements either, and this deficiency stops his § 2241 petition in its tracks. We reached the same conclusion on similar facts less than a year ago in the capital case of Alfred Bourgeois,” Circuit Judge Michael Scudder wrote for the 7th Circuit.

Guided in large measure by its decision in Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020), the 7th Circuit concluded that any updates to the clinical diagnostic standards for intellectual disability did not convince it that the remedy available to Fulks in his original § 2255 motion was inadequate or ineffective.

“Fulks sought at sentencing to avoid the death penalty by relying on his cognitive impairments and fetal alcohol spectrum disorder — owing in no small part to his horrific upbringing — and he had every opportunity to take the next step and argue, whether measured more functionally or under a strict application of clinical standards (or both), that he was intellectually disabled,” the 7th Circuit wrote.

It therefore concluded that it was not aware of any “Supreme Court or Fourth Circuit case on the books at the time of Fulks’s § 2255 petition that would have foreclosed him from raising an arguable Atkins claim.”

“In the end, then, we are unable to identify any structural defect in § 2255 that rendered it an inadequate or ineffective device to challenge his capital sentence. The consequence is that Fulks cannot use § 2241 to claim for the first time that he is ineligible for the death penalty under Atkins,” Scudder wrote.

It similarly rejected Fulks’ second ground for habeas relief invoked by relying Madison v. Alabama, 139 S. Ct. 718 (2019), finding it had no import to Fulks’ intellectual disability claim.

“Although Fulks has not prevailed today and cannot access § 2241 through the savings clause, he has identified — through the assistance of very able counsel — a potential structural limitation that may require additional assessment in a future case,” the 7th Circuit concluded.

“The difficult question on the horizon is whether a capital prisoner can access § 2241 to vacate a death sentence in the face of a monumental change to the clinical definition of intellectual disability that occurs after the prisoner completed one round of § 2255 proceedings,” Scudder wrote. “Assuming a substantial change in the clinical standards allows a newfound diagnosis of intellectual disability, his execution would offend the Eighth Amendment. But the prisoner would have no way to raise his Atkins claim as a second or successive motion under § 2255(h)’s two express exceptions.”

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Civil Plenary-Elections/Voter Rolls

League of Women Voters of Indiana, Inc., et al., v. Holli Sullivan, in her official capacity as Secretary of State of Indiana, et al.

20-2815 & 20-2816

The 7th Circuit Court of Appeals has affirmed the preliminary injunction against the enforcement of an Indiana law that allows election officials to remove voters from the state’s voting rolls without getting consent from the individuals themselves.

In a ruling issued July 19, the appellate court found little difference between the state’s previous participation in the controversial Crosscheck Program and Senate Enrolled Act 334, which established the Indiana Data Enhancement Association that was touted as a replacement. The 7th Circuit described the state’s IDEA program as “functionally identical to Crosscheck.”

“… (W)hat Act 334 took with the left hand, it gave away with the right, and the net result is continued inconsistency with the (National Voter Registration Act),” Judge Diane Wood wrote for the court. “Therefore, we find that portions of it, too, are preempted by federal law.”

SEA 334 allows county election officials to remove a voter if three conditions are met: the individual is registered to vote in the county; has registered to vote in a second state after registering to vote in Indiana; and has authorized the cancellation of the Indiana registration.

However, the 7th Circuit found that additional provisions in the law violated the NVRA.

Specifically, the statute mandates that when county officials receive a written notice from the Indiana Election Division, they should consider that as authorization from the voter to cancel his or her registration. County officials must presume the voter wants to be removed from the rolls even if Indiana does not possess proof that the voter ever submitted such a consent.

“If this new scheme sounds familiar, that’s because it is the same as the procedure found in Act 442 that violated the NVRA,” Wood wrote, referring to Senate Enrolled Act 442, which was passed in 2017 and permitted the use of Crosscheck. “Just like Act 442, Act 334 impermissibly allows Indiana to cancel a voter’s registration without either direct communication from the voter or compliance with the NVRA’s notice-and-waiting procedures.”

The 7th Circuit affirmed the Southern Indiana District Court’s grant of summary judgment to the plaintiffs-appellees in League of Women Voters of Indiana, Inc., et al. v. Holli Sullivan, in her official capacity as Secretary of State of Indiana, et al., 20-2815 and 20-2816.

However, the appellate court affirmed in part and vacated in part the district court’s permanent injunction. The panel ruled the district court went too far when it enjoined the enforcement of multiple sections of Indiana Code § 3-7-38.2-5.5, including those provisions that mandated county officials get express authorization from the voter before removing anyone from the rolls.

“We see nothing in the NVRA that would prohibit the second method of passing along the voter’s choice to Indiana,” Wood wrote.

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July 21

Civil Plenary-Abstention/Comity

City of Fishers, Indiana, et al. v. DIRECTV, et al.

20-3478

The Southern Indiana District Court is in the clear after it abstained from a lawsuit filed by several Indiana cities against popular streaming services like Netflix and Hulu. The 7th Circuit Court of Appeals found the district court acted properly in removing itself from the fight.

In August 2020, Fishers, Indianapolis, Evansville and Valparaiso sued video-streaming services Netflix, Disney, Hulu, DIRECTV and DISH Network. The class-action lawsuit alleged that major video streaming services must pay a 5% franchise fee of gross revenue to the localities where their customers reside because of the use of internet equipment in the public right of way to transmit programming.

Specifically, the cities sought a declaration that the streaming platforms provide “video service” as defined by the Indiana Video Service Franchises Act of 2006 and therefore must pay past and future franchise fees.

After the streaming platforms responded by removing the case from state to federal court under 28 U.S.C. §§ 1441 and 1453, the cities filed a motion to remand to state court on abstention grounds. It pointed to Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010), arguing that federal courts have long declined to exercise jurisdiction over cases involving local revenue collection and taxation.

The Indiana Southern District Court agreed with the cities and remanded, relying on the Levin comity abstention doctrine. Only answering one question — whether the district court properly abstained under the teachings of Levin and like cases — the 7th Circuit Court of Appeals affirmed in a July 21 decision.

Circuit Judge Michael Scudder, writing for the 7th Circuit in City of Fishers, Indiana, et al. v. DIRECTV, et al., 20-3478, noted that Levin delivered a clear message that federal courts “should think twice before taking too couched a view of the comity abstention doctrine.”

“On balance, we conclude that the comity doctrine has something to say about the propriety of a federal court adjudicating this dispute, and the district court did not err by applying the Levin abstention factors,” Scudder wrote, agreeing with the district court that all signs pointed to the need for comity-based abstention.

None of the streaming platforms’ counterpoints opposing abstention were persuasive, Scudder wrote, adding that the companies failed to preserve their arguments in the district court.

As to the streaming platforms’ main argument on appeal, the 7th Circuit doubted their contention that the Class Action Fairness Act of 2005 provides an exhaustive list of exceptions under which a federal court may decline the exercise of jurisdiction.

“For starters, the Supreme Court has limited (its holding in Thermtron Products, Inc., v. Hermansdorfer, 423 U.S. 336 (1976)) in more recent years. In Carnegie-Mellon University v. Cohill, the Court rejected the argument that because ‘the removal statute explicitly authorizes remands in two situations,’ Congress must have ‘intended to preclude district courts from remanding’ on any other ground. Such an interpretation, the Court reasoned, ‘is based not on the language of Congress, but on its silence.’ We think the same interpretive flaw undermines, if not defeats, the streaming platforms’ argument here. The fact that Congress considered federal-state comity in the CAFA exceptions does not mean that it swept decades of abstention doctrines off the table,” Scudder wrote.

“But we can stop short of reaching any definitive conclusion, for the streaming platforms’ CAFA-based argument faces an insurmountable and independent hurdle — waiver,” the 7th Circuit wrote. “The streaming platforms’ CAFA argument falls squarely within that rule and falls out of this appeal. The platforms failed to cite Thermtron in their district court filings. And they never argued that federal courts lack authority under CAFA to remand properly removed cases on non-statutory grounds. We will not reverse the district court’s determination on a ground not presented to it.”

The streaming platforms also waived their final argument invoking Quackenbush v. Allstate Insurance Co., arguing “federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary.”

“The Supreme Court is sure to say more about the limits of comity abstention in years to come,” the 7th Circuit concluded. “Today, though, informed in part by substantial issues of waiver, we are satisfied that the district court did not abuse its discretion by granting the cities’ motion to remand to Indiana state court.”

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July 27

Civil Plenary-Nursing Homes/Private Rights of Action

Gorgi Talevski, by next friend Ivanka Talevski v. Health and Hospital Corporation of Marion County, et al.

20-1664

In considering the plight of a northern Indiana man whose health worsened when he was a resident of Valparaiso Care and Rehabilitation, the 7th Circuit Court of Appeals has aligned with the 3rd and 9th Circuits in finding patients can enforce the rights offered under the Federal Nursing Home Reform Act.

Gorgi Talevski, through his wife, Ivanka, sued Valparaiso Care, the Health and Hospital Corporation of Marion County and American Senior Communities alleging violations of the FNHRA. But the Northern Indiana District Court dismissed the complaint, ruling the plaintiffs had failed to state a claim on which relief could be granted because FNHRA does not provide a private right of action that may be remedied under 42 U.S.C. § 1983.

The family appealed, and the 7th Circuit reversed July 27 in Gorgi Talevski, by next friend Ivanka Talevski v. Health and Hospital Corporation of Marion County, et al., 20-1664.

On appeal, Ivanka Talevski narrowed her arguments to two provisions in the FNHRA section commonly referred to as the Residents’ Bill of Rights. She alleged Valparaiso Care violated Gorgi’s statutory right to be free from chemical restraints by overprescribing psychotropic drugs to restrain him chemically. Also, she asserted the facility violated his rights related to residential transfer and discharge procedures because he was not allowed to remain at Valparaiso Care and did not receive timely notice of his transfer.

The 7th Circuit relied on Blessing v. Freestone, 520 U.S. 329 (1997), which identified three factors to help determine whether a federal statute creates a private right enforceable under § 1983.

In part, the appellate court found that the language of the federal statute was clear that Congress intended sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) to benefit nursing home residents.

“Valparaiso Care argues that Ivanka cannot show the necessary individual focus because the protections at issue serve only as directives to nursing facilities and physicians, and FNHRA as a whole is addressed to states that receive federal Medicaid funding,” Judge Diane Wood wrote. “But it is ignoring the language Congress chose in the sections on which Ivanka is relying.

“Congress told the facilities to respect the rights it had singled out, just as a facility must respect a person’s right to be free from sex or race discrimination,” Wood continued. “It is thus of no consequence that section 1396r(c)(1)(A) begins with the phrase ‘[a] nursing facility must … .’ What must it do? ‘[P]rotect and promote the rights of each resident … .’”

Also, the 7th Circuit found the plaintiffs met the second and third Blessing factors — the right protected by the statute is not so vague that its enforcement would strain judicial competence, and the provision giving rise to the right is couched in mandatory rather than precatory terms.

Finally, the Chicago-based court ruled the right was enforceable under Section 1983.

“Valparaiso Care and its fellow defendants have not shown that, despite the express rights-creating language in the statute we are considering, there is no private action here,” Wood wrote. “Were there any lingering doubt, it should be put to rest in the general guidance provided in section 1396r(h)(8): ‘The remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law.’”

The case was remanded for further proceedings.

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IndianaCourt of Appeals

July 20

Adoption-Parental Consent/Paternity

In the Matter of the Adoption of R.A.K.R.: J.L.J.; In the Matter of the Paternity of R.A.K.R.: S.R., M.J., J.L.J.

21A-AD-187

A stepfather seeking to vacate a paternity determination and adopt his wife’s child was not permitted to do so after the Indiana Court of Appeals concluded that the biological father’s consent to the adoption was required.

At the time of their child’s birth in 2013, mother M.J. and father S.R. executed a paternity affidavit indicating that S.R. was the baby’s biological father. Then, after M.J. married J.L.J. in 2019, M.J. and S.R. admitted in court that S.R. was the biological father, and the court granted him visitation and ordered mediation for the remaining issues.

While those issues were pending, J.L.J petitioned to adopt the child, arguing that S.R. was not the biological father and that his consent was not required. The trial consolidated the two cases and allowed J.L.J. to intervene in the paternity action “for the limited purpose of allowing the parties to proceed with the Motion to Dismiss in the Adoption cause of action.”

During a hearing on the issues, M.J. flipped and testified that she was three months pregnant with the child when she met S.R. and that S.R. knew he was not the biological father. But the trial court denied J.L.J.’s request for DNA testing and granted S.R.’s motion to contest and dismiss the petition, also doing away with J.L.J.’s motion to vacate the paternity determination. The trial court noted that it was unwilling to “de-parent” the child because “mother has found a new husband and now wants to undo what she previously has done.”

An appellate panel affirmed in In the Matter of the Adoption of R.A.K.R.: J.L.J.; In the Matter of the Paternity of R.A.K.R.: S.R., M.J., J.L.J., 21A-AD-187.

The panel acknowledged there is a substantial public policy in correctly identifying parents and their offspring.

“But here, we do not have a man alleging to be Child’s biological father petitioning the court to establish paternity; rather, we have a prospective adoptive parent trying to set aside paternity in order to obviate the requirement for Father’s consent,” Judge Elizabeth Tavitas wrote.

The court further concluded that because S.R.’s paternity had already been established, Indiana Code § 31-14-21-8(b)(2) did not allow the stepfather to request DNA testing. Neither could he request it under § 31-14-21-9.1(a).

“Because Stepfather cannot seek to rescind or set aside the paternity affidavit in order to obviate the requirement for Father’s consent, the paternity affidavit stands. Accordingly, Father’s consent to the adoption of Child is required. Because Father has not given that consent, the trial court properly dismissed Stepfather’s petition to adopt Child,” the appellate court concluded.

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Post-Conviction-Habitual Offender/Waiver

Christopher Bell v. State of Indiana

20A-PC-2295

A Vanderburgh County man convicted of multiple felonies including murder has convinced the Indiana Court of Appeals to overturn his habitual offender adjudication.

Christopher Bell was found guilty of felony murder and Class A felony conspiracy to commit robbery in 2013. The Vanderburgh Superior Court then moved to the habitual offender phase, where Bell told the court he was voluntarily and by his own free will stipulating he was a habitual offender because of his two prior unrelated felony convictions.

The court told Bell he had the right to a hearing that was “not exactly a trial but they would have to prove these (convictions) beyond doubt.” Bell said he understood and confirmed he wanted to proceed with his admission.

Subsequently, he was sentenced to an aggregate of 90 years. The Court of Appeals affirmed and the Indiana Supreme Court denied transfer.

Bell then filed for post-conviction relief. He argued that by admitting to his prior convictions with respect to the habitual offender count without personally waiving his right to a jury, he entered an involuntary guilty plea. Also, he contended his appellate counsel was ineffective for failing to raise the jury waiver issue on appeal.

The post-conviction court found that because Bell stipulated to his prior convictions in a bench trial and did not enter a guilty plea, the trial court was not required to advise him of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and obtain his waiver of those rights. Also, it found Bell’s appellate counsel did not render ineffective assistance.

The COA disagreed on both counts in Christopher Bell v. State of Indiana, 20A-PC-2295, vacating the habitual offender determination and remanding for a new trial on the habitual offender information.

In reaching that decision, the appellate court found Perkins v. State, 541 N.E.2d 927,929 (Ind. 1989), to be “particularly instructive.”

“There is no disputing, here, that the colloquy between Bell and the trial court, following the jury’s verdict and prior to the ‘hearing’ on the habitual offender allegation, was not a constitutionally sufficient waiver of Bell’s jury trial rights,” Judge Elizabeth Tavitas wrote. “… (T)he PC Court’s decision is contrary to law. We conclude that the trial court failed to advise Bell of his right to a jury trial regarding the habitual offender finding and Bell’s personal expression of his desire to forgo a jury trial is not apparent from the trial record.”

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July 21

Civil Plenary-Rehearing/Jury Verdict

Randy C. Axelrod, M.D. v. Anthem, Inc., and all of its affiliates, WellPoint, Inc., and Amgen, Inc.

19A-PL-1171

Members of the Indiana Court of Appeals haven’t changed their minds in a case involving a former Anthem executive’s failed appeal of a jury verdict for the insurance company, granting a rehearing only to clarify its ruling to his raised contentions.

Former WellPoint vice president Dr. Randall C. Axelrod alleged he was wrongly fired after testifying in a case concerning pharmaceutical pricing. Axelrod was removed as vice president of health care management for WellPoint’s Virginia-based east region in July 2006 and soon left the company.

He claimed WellPoint asked him to sign a form stating he was resigning, and when he refused, the company withheld severance and pension benefits, prompting him to sue.

Axelrod alleged he was fired shortly after testifying for Ortho Biotech in a federal lawsuit the company brought against Amgen. A jury ruled against him and the Indiana Court of Appeals affirmed.

In its previous ruling, the COA held that the trial court did not misapply Indiana Trial Rule 60(B)(3), the jury verdict against Axelrod was not unfairly procured, and the trial court did not abuse its discretion by denying Axelrod’s motion for post-trial discovery.

The appellate court reaffirmed its original decision in Randy C. Axelrod, M.D. v. Anthem, Inc., and all of its affiliates, WellPoint, Inc., and Amgen, Inc. 19A-PL-1171.

“Axelrod has filed a petition for rehearing, arguing that this Court ‘inaccurately cited’ the trial court’s June 27, 2017 order, which led to an ‘incorrect quote,’ and failed to address two contentions in our opinion,” wrote Senior Judge Randall Shepard.

First addressing Axelrod’s assertion that the jury verdict had been unfairly procured due to witness tampering by opposing counsel, the appellate court noted that it was apparent that the problems Axelrod’s counsel had experienced in securing testimony from out-of-state witnesses arose from the use of improper procedure.

“By directly quoting the trial court’s language that ‘the subpoenas must be quashed as improper and illegal,’ we sought to convey what was evident to us — the referenced impropriety and illegality had to do with the failure to follow proper procedure and not with any criminal behavior or consequences,” Shepard wrote.

The Court of Appeals concluded that a new trial was still not warranted upon finding that Axelrod’s attempts to subpoena Virginia witnesses were not illegal in any criminal sense, “just not in compliance with the applicable trial rules and the trial court’s guidance.”

Axelrod also alleged opposing counsel violated the trial court’s orders in limine. But the appellate court remained unswayed, noting Axelrod did not object when the evidence was first offered at trial.

“We are convinced that the particular behavior does not constitute a violation of the court’s order as it is represented to us, and that Axelrod has not demonstrated that he is entitled to a new trial,” Shepard concluded.

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July 23

Criminal-Bail Bonds/Forfeiture

Timothy O’Connor, Umesh Kaushal v. State of Indiana

21A-CR-220

A bail bondsman has been freed from an order to pay up on a $20,000 bond he posted after the Indiana Court of Appeals found the bond had expired.

In 2015, Timothy O’Connor posted a $20,000 recognizance surety bond on behalf of Umesh Kaushal, leaving Kaushal free to go pending a trial for his charge of Level 4 felony child molesting. Five years passed while prosecution in Kaushal’s case languished, during which Kaushal pleaded guilty, withdrew that plea, pleaded guilty again, unsuccessfully sought to withdraw from that plea and then appealed that denial twice. After that appeal proved unsuccessful, Kaushal failed to appear for a scheduled court hearing in December 2019.

The Marion Superior Court ordered O’Connor and the surety to surrender Kaushal or prove within 120 days that Kaushal’s absence was due to his illness or death, that he was in government custody or that notice was deficient. Almost one year later, O’Connor filed a petition to release surety, arguing the bond had expired under Indiana law three years after it was posted for Kaushal and prior to his final failure to appear. Regardless, the bond was forfeited and O’Connor was billed, despite his claims that he couldn’t produce Kaushal because Kaushal was living in India with a lapsed U.S. visa.

In reversing that decision, the Indiana Court of Appeals concluded the $20,000 bond had indeed expired years prior. The COA found that although the trial court initiated bond forfeiture proceedings in December 2019, it did not order the bond forfeited until January 2021. As such, O’Connor timely raised his bond expiration defense in December 2020.

“In light of these circumstances, the language at issue in Kaushal’s bond — ‘from day to day and from term to term thereof . . . until such cause is determined’ — cannot be construed reasonably as an agreement to extend the bond beyond the 36-month statutory expiration date,” Judge Leanna Weissmann wrote for the appellate court.

“By law, Kaushal’s bond expired on August 9, 2018, which was 36 months after it was posted. Consequently, the forfeiture proceedings initiated on December 27, 2019, were invalid because by that time there was no bond left to forfeit,” Weissmann concluded in Timothy O’Connor, Umesh Kaushal v. State of Indiana, 21A-CR-220.

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July 28

Civil Plenary-Rental Properties/Discrimination

Gregory Wilson, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission v. Betty Jo Wilkening

20A-PL-1960

A new trial has been ordered for a Lake County father who was refused a rental home after telling the owner that he had children.

Darrin Bowman, who has two minor children, was considering renting a Lake County home from Betty Jo Wilkening. The unit was available and Bowman was qualified, but once Wilkening learned his children would live with him on the weekends, she refused to allow him to complete a rental application.

When Bowman’s single friend without children was later shown the same home and encouraged to apply, Bowman brought his concerns to the Indiana Civil Rights Commission. The commission issued a notice that found there was “reasonable cause” to conclude Wilkening had violated the Indiana Fair Housing Act on the basis of familial status. Gregory Wilson Sr., in his capacity as the executive director of the commission, thus sued Wilkening on behalf of Bowman and the commission.

Wilkening countered that the commission had neither made its determination of reasonable cause within 100 days of Bowman filing his complaint, nor found that it was impracticable to make its determination within the 100-day time period.

The Lake Superior Court granted her motion for judgment on the evidence, but the Indiana Court of Appeals reversed, agreeing with the commission that the trial court misinterpreted the “shall” in I.C. § 22-9.5-6-8 as mandatory rather than directory.

The appellate court noted the statute neither specifies any express or implied adverse consequences for the commission’s failure to comply with the 100-day notice provision, nor contains language indicating the 100-day deadline was jurisdictional.

“In addition, compliance with the 100-day notice provision does not go to the essence of the statute’s purpose, which is to assure fair housing practices in Indiana,” Judge Rudolph Pyle wrote for the appellate court.

“… Lastly, a mandatory construction of the word ‘shall’ in INDIANA CODE § 22- 9.5-6-8 would thwart the legislative purpose of the statute by requiring the dismissal of potentially valid IFHA cases based simply on the Commission’s delay. This would be an absurd and unjust result, which would be patently inconsistent with the intent of the IFHA,” Pyle wrote.

The COA therefore reversed and remanded the case for a new trial in Gregory Wilson, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission v. Betty Jo Wilkening, 20A-PL-1960.•