Indiana Court Decisions – July 30-Aug. 12, 2020

7th Circuit Court of Appeals

Aug. 4

Criminal — Petition for Writ of Habeas Corpus/Murder

John Myers v. Ron Neal

19-3158

The murder conviction against the man found guilty of killing Indiana University student Jill Behrman has been reinstated after the 7th Circuit Court of Appeals determined that his counsel was deficient, but not prejudicial.

The appellate panel overturned last year’s grant of habeas relief to John Myers in John Myers v. Ron Neal, 19-3158.

Indiana Southern District Judge James Sweeney granted habeas relief to Myers in October, finding that his counsel in his 2006 trial was prejudicially deficient when he made false statements to the jury during opening statements and failed to object to two categories of evidence.

Sweeney later ordered that Myers be released from prison pending the state’s appeal in light of the COVID-19 pandemic. The 7th Circuit, however, blocked the order for Myers’ COVID-19 release.

In also overturning the grant of habeas relief, the 7th Circuit panel — judges Joel Flaum, Amy St. Eve and opinion author Michael Scudder — agreed with Sweeney that Myers’ counsel performed deficiently during opening arguments.

“Defense counsel alternatively sought to place blame on Brian Hollars, a Bloomington resident who worked with Behrman at the Student Recreational Sports Center,” Scudder wrote. “But in contending that Hollars was responsible for Behrman’s murder, defense counsel made certain misrepresentations.

“He promised the jury evidence that Hollars and Behrman were romantically involved and were seen fighting the day before she disappeared,” the judge continued. “Counsel also represented that a bloodhound followed Behrman’s scent in the direction of Hollars’s house but that an officer stopped the dog before it could reach the front door.

“All of those promises rang hollow,” Scudder wrote, “as defense counsel never presented any such evidence.”

Additionally, the “starkest example” of deficient performance, the panel held, was the failure of Myers’ counsel to object to testimony that Behrman was raped before she was killed. But those errors aside, the appellate panel determined the state’s case against Myers was still strong enough to secure a conviction.

“… (E)ven without the testimony about rape, the state painted the pictured about Myers through other means. The jury heard testimony showing that Myers lost his girlfriend, Carly Goodman, and had no luck trying to restore the relationship, including by unexpectedly showing up at her senior class trip and trying to join her at an amusement park in Louisville before being turned away,” Scudder wrote. “The jury also heard from John Roell, who shared a cell with Myers in May 2005, that Myers spoke about Behrman using degrading language and saying that nothing had to happen to her if she would not have said anything — statements evincing Myers’s attempt to exert control over her. With all of this evidence, the state portrayed a defendant who lost control of one relationship and committed a horrific crime as part of trying to exercise control over a young woman of a similar age.”

Also, Scudder continued, “The incriminating statements Myers made to so many different people following Behrman’s disappearance make all the difference in determining whether defense counsel’s errors substantially affected the outcome of the trial. … Aside from these statements to family members, the jury heard from an array of friends, acquaintances, and community members recalling similar comments.

“… Our examination of the record leaves us of the firm conviction that even without counsel’s errors, the jury would have reached the same conclusion and found John Myers guilty of murdering Jill Behrman,” Scudder concluded. “Because of the strength of the evidence presented at trial, our confidence in the jury’s decision is not undermined.”

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Aug. 5

Civil Plenary — Medicaid/Injunction, Order for Self-Directed Care

Karen Vaughn v. Jennifer Walthall

19-1244

A quadriplegic woman requiring nearly around-the-clock care was stripped of a federal court ruling permitting her to dictate the terms of her own home health care at the state’s expense. In so ruling, the 7th Circuit Court of Appeals asked, “How much state expenditure outside the scope of the Medicaid program may a court command?”

The case involves Hoosier Karen D. Vaughn, who was awarded summary judgment by Chief Judge Jane Magnus Stinson after she sued the Indiana Family and Social Services Administration over its failure to provide her with in-home care.

After she became sick with pneumonia in 2016, Vaughn was cleared for discharge from the hospital after about a week, but the state could not find suitable home health providers, so she was placed in a nursing home against her wishes. Vaughn sought permission to self-direct her care, a request supported by her doctor and the hospital’s social worker. In some cases, she would permit trained non-nurse attendants to handle routine tasks.

Magnus-Stinson ultimately issued a permanent injunction requiring the state to “‘do whatever is necessary to achieve the result’ that Vaughn wanted: round-the-clock home-based care, fully paid for by the state.” The state complied, spending funds outside those it was reimbursed for under Medicaid, but also appealed summary judgment in Vaughn’s favor and the injunction.

The 7th Circuit Court of Appeals reversed and vacated both rulings in Karen Vaughn v. Jennifer Walthall, et al., 19-1244, and remanded for proceedings.

“The district court, apparently thinking that some reshuffling of Medicaid funds was possible, thought that it was reasonable for Indiana to direct the FSSA to provide whatever care Vaughn needs. We do not read the law and regulations that way,” Judge Diane Wood wrote for the panel. “Indiana contends, and we agree, that only if the accommodations comport with federal requirements for Medicaid service approval and funding must it offer them. If, on the other hand, federal requirements preclude the changes Vaughn wants, Indiana need not go outside its approved programs and relinquish federal reimbursement.”

The panel noted that an Indiana pilot program that began in May 2020 and permits self-directed skilled medical care may meet Vaughn’s medical needs at home. However, the panel remanded decisions of the district court it deemed too broad.

“This case is about Indiana’s Medicaid program, not its general social-welfare regime. It is thus troublesome for the court to issue an injunction requiring Indiana to furnish Vaughn’s care entirely out of its own funds, unreimbursed and unsupplemented by Medicaid. Today it is Vaughn, but it easily could be someone else tomorrow. How much state expenditure outside the scope of the Medicaid program may a court command? We could understand this kind of order if one of the conditions of the Medicaid program itself required this action, but we cannot find any such provision in the federal statute or regulations,” Wood wrote.

“We say this with great sympathy for people who find themselves in Vaughn’s situation. Indeed, never have we seen a time when the advantages of home-based, community-integrated provision of services to the disabled have taken on greater importance,” the panel noted, citing the COVID-19 pandemic, during which 44% of deaths in Indiana have occurred in nursing homes.

“It is entirely understandable that people strongly prefer to avoid institutional living arrangements,” Wood wrote. “Nonetheless, our task is only to determine whether Vaughn is entitled to the services she has requested under Indiana’s version of the Medicaid program. We have concluded that, as the program was structured before the state adopted its new pilot program, the answer is no. That means that the permanent injunction entered by the district court must be vacated.

“Vaughn is entitled to receive at-home care by providers of her choosing only to the extent that, working with the state, she can craft a program that complies with federal and state law and does not deprive Indiana of the ability to receive its share of federal reimbursement through the Medicaid program for services provided. The state is not obligated to reimburse Vaughn’s providers at rates above the approved Medicaid caps, nor must it use funds outside the Medicaid program to comply with a rule about accommodation within the program,” the panel concluded.

Indiana Supreme Court

Aug. 5

Criminal — Child Molesting/Criminal Rule 4(C) Dismissal

Brandon Battering v. State of Indiana

20S-CR-31

The Indiana Supreme Court has ordered discharge of child molesting counts, finding the defendant is entitled to the discharge because the state waited too long to bring a stay of the proceedings in order to toll Indiana Criminal Rule 4(C)’s one-year limitation.

Justices previously granted transfer in Brandon Battering’s case, which had divided the Indiana Court of Appeals in October 2019. Battering was charged with child molesting and child solicitation based on allegations that he engaged in sexual conduct with his 12-year-old stepsister.

Shortly before Battering’s scheduled trial date, the Pulaski Circuit Court granted his motion to suppress certain statements made to police. The state then sought interlocutory appeal, but did not request a stay of the trial proceedings until five months later.

Battering appealed the denial of his motion for discharge under Indiana Rule of Criminal Procedure 4(C), but the trial court denied it and a majority of the Indiana Court of Appeals affirmed. However, Senior Judge John Baker argued that Battering’s motion should have been granted and the Indiana Supreme Court agreed to take the case.

“The issue now presented for our review upon Battering’s interlocutory appeal is whether, for the purposes of Criminal Rule 4(C), the State’s action of seeking an interlocutory appeal automatically stayed the proceedings so as to toll Rule 4(C)’s one-year limitation. In other words, was the State required to specifically move for a stay of the proceedings, or did the interlocutory appeal create an automatic stay?” Justice Steven David posed for the Supreme Court.

“Reviewing the plain language of Indiana Rule of Appellate Procedure 14 in conjunction with Criminal Rule 4(C), we find that Rule 4(C)’s clock continued to tick until the State formally moved for a stay of the proceedings. Because this time continued to count against Rule 4’s one-year limitation in prosecuting the charged crimes and the State exceeded this limitation, we reverse the trial court and find that Battering is entitled to discharge,” the unanimous high court ruled.

First, the high court noted that the language of Criminal Rule 4(C) and Appellate Rule 14(H), in light of the Indiana Supreme Court’s precedent in Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009) and State v. Larkin, 100 N.E.3d 700, 703 (Ind. 2018) led it to the conclusion that the state’s motion for continuance was not a stay under Criminal Rule 4(C).

“We can glean from these decisions that Rule 4(C)’s one-year limitation always tolls when a stay is in place. If a stay is not in place, however, the clock continues to tick against the State. So the question in this case is whether the State’s interlocutory appeal constituted a stay even if the State did not formally request one,” the high court wrote.

Indiana Appellate Rule 14(H) answers that question, the justices concluded, of which a plain reading provides that an interlocutory appeal only constitutes a stay if the trial court or the appellate court so orders.

“Nevertheless, the State urges that it complied — either constructively or substantially — with the spirit of the rule and should not be punished with the continued ticking of the Criminal Rule 4(C) clock. The State further argues that it had no other option in this case than to initiate an interlocutory appeal after the trial court’s adverse ruling to Battering’s motion to suppress. Be that as it may, the State did have an appropriate remedy available to it when it sought an interlocutory appeal: Request a stay. It failed to do so here,” the high court concluded.

It thus reversed the trial court in Brandon Battering v. State of Indiana, 20S-CR-31 and discharged Battering.

Indiana Court of Appeals

July 30

Civil Plenary — Zoning/Transfer Station Permitting

Monster Trash, Inc. v. Owen County Council, et al.

20A-PL-00918

A family-owned trash collection business hoping to set up a new transfer station in Owen County won a reversal from the Indiana Court of Appeals following its struggle to proceed due to a dispute with county officials.

In 2018, Monster Trash, a Spencer-based trash collection business, applied to the Indiana Department of Environmental Management for a license to operate a solid waste transfer station at 2243 State Highway 43 in Owen County.

But the trash collectors hit a roadblock during the application process when the Owen County Board of Zoning Appeals, the Owen County Council, and the Owen County Commissioners refused to issue a document required by IDEM indicating that no rezoning or variance would be necessary for Monster Trash’s operation of a waste transfer station on the property.

Monster Trash petitioned for a declaratory judgment that its intended use of the property was permitted pursuant to the Owen County Zoning and Subdivision Control Ordinance, but the Morgan Circuit Court ultimately entered declaratory judgment in favor of the county.

The Indiana Court of Appeals reversed after disagreeing with the trial court’s ruling, siding with the trash collectors in Monster Trash, Inc. v. Owen County Council, et al., 20A-PL-00918.

“The BZA apparently refused to issue the requested document because it interprets the Ordinance as absolutely prohibiting the operation of a solid waste transfer station on the Property (an interpretation the County urges on appeal), but this is simply not true. Subsection 3.5 of the Ordinance clearly provides that such stations are prohibited unless they are “licensed and approved by the State of Indiana[,]” which means that they are, in fact, not absolutely prohibited,” Chief Judge Cale Bradford wrote for the appellate court.

Upon finding that obtaining a state-issued license is the only way to legally operate a waste transfer station in the Owen County Jurisdictional Area and that applying for a variance would change nothing, the appellate court had little trouble concluding that the county’s refusal to issue the requested document was not in accordance with the clear provisions of subsection 3.5.

It likewise concluded that the refusal also qualifies as arbitrary, capricious, and an abuse of discretion.

“We can conceive of no legal justification for refusing to issue a document that does nothing more than accurately state the law. Moreover, Monster Trash has clearly shown prejudice resulting from the refusal, as it is entirely possible that the County’s refusal is the only thing keeping Monster Trash from obtaining their State-issued license at this point,” the appellate court wrote.

It therefore reversed and remanded with instructions to, within 30 days of the certification of its memorandum decision, “order the BZA to issue a document to IDEM and/or Monster Trash confirming that zoning requirements are not required for the location of a solid waste transfer station on the Property.”

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Aug. 6

Civil Tort — Personal Injury/Good Samaritan Law

Eric McGowen and Vision Logistics, Inc. v. Bradley Montes

19A-CT-1707

The Indiana Court of Appeals has partially reversed the denial of summary judgment to a truck driver involved in a car accident after finding both he and his employer are entitled to protection under the Good Samaritan Law.

While driving through heavy fog in the early morning hours, Eric McGowen came to a stop on the two-lane county road he was driving on to check on a damaged vehicle in a nearby ditch. McGowen, who was driving his employer’s semi-tractor, had his foot on the brake of his semi and had not completely put the vehicle in park.

As McGowen asked if the driver needed someone to call 911, Bradley Montes drove up behind McGowen on the road and, without braking, crashed into the back of the semi. Both McGowen and Montes were injured as a result, and each in turn sued the other for negligence. Montes also sued McGowen’s employer, Vision Logistics, as a third-party defendant, alleging McGowen had been working for Vision at the time of the collision.

The Tippecanoe Superior Court later ruled on McGowen and Montes’ cross-motions for summary judgment, determining that while there was no dispute of material fact that McGowen was rendering emergency care for purposes of the Good Samaritan Law when he stopped and offered to call 911, a dispute of material fact existed as to whether McGowen’s act in stopping on the road amounted to gross negligence or willful or wanton misconduct, for purposes of the GSL.

Thus, the trial court granted in part and denied in part McGowen’s and Vision’s motion for summary judgment, and denied Montes’ cross-motion for partial summary judgment. It later granted a motion for interlocutory review, which the Indiana Court of Appeals accepted in Eric McGowen, et al. v. Bradley Montes, 19A-CT-01707.

The appellate court affirmed in part and reversed in part, first disagreeing with Montes and amicus curiae Indiana Trial Lawyers Association’s argument that the GSL statute in its entirety encompasses only medical care or first aid.

“We conclude from the unambiguous language of the GSL that stopping and asking if a person who has been involved in an accident needs help is ‘emergency care,’” Senior Judge Ezra Friedlander wrote for the appellate court.

It further found that the scene of the vehicle collision qualified as an emergency for purposes of the GSL, and thus, the denial of Montes’ motion for partial summary judgment was not an error.

Additionally, the appellate court disagreed with Montes’ assertion that there are several material disputes of fact that justify the trial court’s partial denial of McGowen’s and Vision’s motion for summary judgment on the issue of gross negligence. Rather, it concluded the opposite.

On the issue of willful and wanton conduct, the appellate court concluded that the undisputed facts demonstrated McGowen was aware of dangerous road conditions and attempted to drive carefully while rendering aid to the vehicle’s driver.

Thus, the appellate court concluded his conduct did not meet the standard of willful or wanton misconduct and the trial court ultimately erred in denying in part McGowen and Vision’s motion for summary judgment because they are entitled to the protection of the Good Samaritan Law.

It therefore affirmed the judgment of the trial court in part, reversed in part, and remanded with instructions to grant McGowen and Vision’s motion for summary judgment.

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Aug. 6

Child Molesting/Admission of Victim’s Forensic Interview Video

Jared J. Gorby v. State of Indiana

19A-CR-02925

The Indiana Court of Appeals has affirmed a man’s child molesting conviction after finding that the admission of a forensic interview video played for the jury under Indiana Rule of Evidence 803(5) was not an abuse of discretion.

In Jared J. Gorby v. State of Indiana, 19A-CR-02925, Jared Gorby was convicted of Level 3 felony child molesting and sentenced to the advisory sentence of nine years, with five years served in the Department of Correction and four years suspended to probation.

During his trial, the St. Joseph Superior Court allowed a video of the forensic interview of the victim to be played for the jury under Indiana Rule of Evidence 803(5). Gorby later appealed, arguing that allowing the video was an abuse of the trial court’s discretion.

In his appeal, Gorby contended that the victim’s forensic interview was inadmissible hearsay that should not have been shown to the jury. But the Indiana Court of Appeals affirmed, finding that the trial court did not abuse its discretion in allowing the jury to see the video.

“To the extent B.B. gave conflicting answers, it was up to the trial court to decide whether B.B. couldn’t remember the events or simply did not want to talk about them. The trial court — after seeing and hearing B.B. testify — concluded that she could not remember the events and that Evidence (Rule) 803(5)(A) was therefore satisfied. We will not second guess that conclusion.”

On the third element of Rule 803(5), the appellate court similarly declined to disturb the trial court’s conclusion that the victim had adequately vouched for the accuracy of the statements she made during the interview and that the rule was therefore satisfied.

It thus found the trial court did not abuse its discretion by admitting the victim’s forensic interview into evidence under Evidence Rule 803(5).

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Aug. 10

Civil Tort — Negligent Management/Indiana Tort Claims Act

Shannon Murphy v. Indiana State University and Nick D. Pledger

20A-CT-313

A former Indiana State University volleyball player who sued the university upon learning a campus locker room was being secretly filmed by a fellow student could not convince the Indiana Court of Appeals that granting ISU’s motion for summary judgment was a mistake.

In 2017, ex-ISU student Nick Douglas Pledger pleaded guilty to two counts of Level 6 felony voyeurism, and two counts of Level 6 felony public voyeurism after he was caught secretly filming female student-athletes in an ISU campus locker room and sharing the videos online. He was sentenced to five years.

Not long after Shannon Murphy and her ISU women’s volleyball teammates were alerted to the hidden cameras, Murphy’s teammate, Stephanie Bindernagel, filed a notice of tort claim with ISU, the Indiana Political Subdivision Risk Management Commission, and the Attorney General regarding her claim for damages against ISU for negligent management.

Murphy then filed a complaint against ISU and Pledger, alleging, in part, that ISU was negligent in the management and security of the locker room, which allowed Pledger to access the locker room. In the complaint, Murphy stated that she filed a notice of tort claim with the Indiana Attorney General’s Office.

The Vigo Superior Court granted in part and denied in part ISU’s motion for a protective order, but later granted its second motion for a protective order against Murphy. It also in October 2019 entered an order that considered ISU’s motion to dismiss as a motion for summary judgment in light of Murphy’s submitted exhibits, ultimately granting ISU’s motion for summary judgment.

The trial court concluded that Murphy did not substantially comply with the notice requirements of the Tort Claims Act, and subsequently denied her motion to correct error.

In affirming the trial court, the Indiana Court of Appeals first concluded that Murphy did not provide timely notice of her claim to ISU as required by Indiana Code Section 34-13-3-8. Instead, it noted that she provided notice of her claim only to the Attorney General using a form found on the Attorney General’s website, which was intended for tort claims against the state or a state agency.

Even considering together Bindernagel’s proper notice of tort claim, Murphy’s notice to the Attorney General and ISU’s investigation, the appellate court concluded that Murphy did not substantially comply with the Tort Claims Act’s notice requirements.

“The General Assembly has specifically articulated the notice of tort claim requirements, and, our Supreme Court and this Court have clearly expressed the purpose of such requirements. Murphy’s notice, which was provided to the wrong entity, did not satisfy the purpose of the notice requirements. Although the facts of this case are appalling and no doubt continue to substantially impact Murphy, the notice requirements of Indiana Code Section 34-13-3-8 and the cases interpreting the Tort Claims Act require us to conclude the trial court properly granted ISU’s motion for summary judgment based on the record before us,” Judge Elizabeth Tavitas wrote for the appellate court.

The case is Shannon Murphy v. Indiana State University and Nick D. Pledger, 20A-CT-313.

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Aug. 10

Criminal — Rape/Unconstitutional Condition of Probation

Amjad Nabil Salhab v. State of Indiana

19A-CR-03059

An appeals court upheld an aggregate 24-year sentence for a man convicted of three counts of rape, but it also found a condition of probation that barred him from visiting “businesses that sell sexual devices or aids” was unconstitutionally broad.

A Marion Superior jury convicted Amjad Nabil Salhab as charged with three counts of Level 3 felony rape, as well as Level 5 felony counts of child seduction and criminal confinement and Level 6 felony child seduction. At sentencing, the trial court vacated the Level 5 felony counts over concerns about double jeopardy violations.

Salhab was sentenced to eight years for each of the rape convictions, with two years suspended from each of those individual sentences, and to one year for his Level 6 felony child seduction conviction. He was ordered to serve his three rape sentences consecutively because the trial court believed the evidence showed each charge constituted a distinct act, and there was a “significant” aggravating circumstance of his having care, custody and control over the victim. Salhab was also sentenced to three years’ probation.

The Indiana Court of Appeals affirmed the sentence in Amjad Salhab v. State of Indiana, 19A-CR-3059.

“Salhab essentially argues that the trial court’s imposition of below-advisory individual sentences shows that it found that the mitigators outweighed the aggravators, and, thus, that it was an abuse of the trial court’s discretion to impose consecutive sentences. However, Salhab’s argument is based on an inaccurate premise, as the trial court did not find that the mitigators outweighed the aggravators in his case; it made no statement regarding its balancing of the aggravators and mitigators,” Judge Patricia Riley wrote for the court.

“In addition, after the General Assembly adopted our present advisory sentencing scheme in 2005, a trial court is no longer obligated to identify and weigh the aggravating and mitigating circumstances upon rendering its sentence,” the panel noted, citing to Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

However, the panel did reverse a condition of Salhab’s probation barring him from “businesses that sell sexual devices or aids.” The panel noted that identical parole and probation conditions were struck as unconstitutionally overbroad in Bleeke v. Lemmon, 6 N.E.3d 907, 921 n.8 (Ind. 2014); Custance v. State, 128 N.E.3d 8, 12 (Ind. Ct. App. 2019); and Collins v. State, 911 N.E.2d 700, 714 (Ind. Ct. App. 2009), trans. denied.

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Aug. 12

Civil Plenary — Teacher Contracts/Judicial Review

Culver Community Teachers Association, et al. v. Indiana Education Employment Relations Board

19A-PL-2989

A divided appellate panel overturned the Indiana Education Employment Relations Board’s final decisions that three contracts negotiated and ratified by Indiana teachers unions and their respective school employers did not comply with state law.

In Culver Community Teachers Association, et al. v. Indiana Education Employment Relations Board, 19A-PL-2989, the Culver Community Teachers Association, Decatur County Education Association, Smith-Green Community Schools Classroom Teachers Association, and West Clark Teachers Association appealed a denial of their joint verified petition for judicial review of the board’s final decisions regarding their respective collective bargaining agreements.

Issues for the teacher associations began following their submission of ratified contracts for the 2017-2018 academic school year to an IEERB compliance officer for review.

Upon issuing a report and recommendations, however, the compliance officer found that the four CBAs each contained a provision that was noncompliant with Indiana Code Section 20-29-6-4, which enumerates the mandatory subjects of collective bargaining for teachers.

In affirming the finding of noncompliance, the board found in all four CBAs that the “parties may not bargain a limitation on the assignment of an ancillary duty.”

The Marion Superior Court affirmed, holding that the board’s four final decisions were not arbitrary and capricious. It further denied the teachers associations’ petition for judicial review, but a split Indiana Court of Appeals reversed Aug. 12.

“Identifying agreed-upon ancillary duties is not the same as bargaining them. A plain and ordinary reading of the CBAs does not indicate that the parties bargained regarding which ancillary duties teachers would be required to perform. Rather, the parties identified the compensable ancillary duties and bargained the compensation accordingly,” Judge Elizabeth Tavitas wrote for the majority, joined by Judge Paul D. Mathias.

“… Although the trial court discounted (IEERB v. Nettle Creek Classroom Teachers Ass’n, 26 N.E.3d 47 (Ind. Ct. App. 2015) and Jay Classroom Teachers Ass’n v. Jay School Corp., 45 N.E.3d 1217 (Ind. Ct. App. 2015)) as mere dicta, the holdings of these cases are not dicta. These cases are directly on-point and set forth legal holdings that directly relate to the issue at-bar. The trial court’s findings and conclusions thereon dismissing Nettle Creek and Jay Classroom I as dicta are clearly erroneous,” the majority wrote.

Given the willingness of the school employers to bargain regarding the ancillary duties at issue, the appellate majority thus concluded that it could not agree with the IEERB’s conclusion that the challenged provisions interfered with the school employers’ collective bargaining rights.

“To the contrary, by including the challenged provisions in the final, negotiated, and ratified CBAs, the School Employers assented to and permitted bargaining thereon, and the Teachers Associations did not impermissibly dictate bargaining subjects for negotiation,” the majority wrote.

Finding that the teachers associations carried their burden to prove that the IEERB’s final decisions regarding their respective CBAs are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the appellate majority concluded that their petition was denied in error.

Judge Patricia Riley, however, dissented with a separate opinion, arguing that the majority relied on dicta contained Nettle Creek and Jay Classroom I, “neither of which addressed the issue at hand, which is properly framed as whether Indiana Code section 20-29-6-4 provides teachers the authority to bargain with a school corporation as to what constitutes an ancillary duty.

“As the majority acknowledges, we accord deference to an administrative agency’s interpretation of a statute it is charged with enforcing. Given the plain terms of the statute and the lack of binding legal authority for the Teachers Associations’ position, I cannot conclude that the trial court erred when it denied the petition for judicial review,” Riley wrote in dissent.

Regardless, the majority reversed and remanded to the IEERB to adopt the ratified contracts.•