Kerr v. City of Bloomington
20 N.E.3d 356
Court of Appeals of Indiana
[29] Accordingly, we cannot find that Kerr has substantially complied with the ITCA‘s notice requirement in this case. While Kerr certainly notified the City as to the odors entering his home, he did not notify the City that he intended to take legal action until 2012. As the City was not aware that Kerr planned on filing a claim against it until this date, it was certainly not given an opportunity to ascertain the nature of Kerr‘s claim and to prepare a defense to that claim. Therefore, we cannot find that Kerr‘s prior communications with the City regarding this issue served the purpose behind the ITCA‘s notice requirement.
[30] Kerr also points to the equitable doctrine of fraudulent concealment, arguing that it should apply in this case to estop the City from asserting that Kerr‘s claims are time-barred. Kerr believes that his communications with Deputy Mayor Coleman may amount to fraudulent concealment on the City‘s part and that this is a question of fact for the jury.
[31] We find the doctrine of fraudulent concealment inapplicable to the facts of this case. Fraudulent concealment is an equitable doctrine which operates to prevent a defendant from asserting the statute of limitations as a bar to a claim where the defendant, by his own actions, prevents the plaintiff from obtaining the knowledge necessary to pursue a claim. When this occurs, equity will toll the statute of limitations until the equitable grounds cease to operate as a reason for delay. Sagarin v. City of Bloomington, 932 N.E.2d 739, 746 (Ind.Ct.App.2010).
[32] Although Kerr is correct that whether fraudulent concealment applies is usually a question to be determined by the factfinder, Kerr has failed to allege that anything was concealed in this case. Kerr‘s claims are predicated on his assertion that fumes have unlawfully entered his home. He was aware of these fumes for years and he does not claim that Deputy Mayor Coleman acted in any way to conceal their presence. To the extent that other equitable tolling doctrines may be available in this case, Kerr has not directed our attention to them, and we will not formulate an argument on his behalf. See
[33] The judgment of the trial court is affirmed in part and reversed in part. On remand, Kerr‘s claim against the City may proceed insofar as it relates to damage to or loss of the use and enjoyment of his property beginning 180 days prior to the filing of his notice of tort claim.
RILEY, J., and BROWN, J., concur.
In the Matter of the Expungement of J.S.
STATE of Indiana, et al., Appellants, v. J.S., Appellee.
No. 16A04-1503-MI-89
Court of Appeals of Indiana
Dec. 28, 2015.
Bryan L. Cook, Indianapolis, IN, Attorney for Appellee.
BRADFORD, Judge.
Case Summary
[1] Effective July 1, 2013, the Indiana General Assembly (the “General Assembly“) adopted a law allowing for the expungement of certain conviction records if the petitioning individual meets certain requirements. On February 27, 2014, Appellee J.S., who held a commercial driver‘s license (“CDL“), petitioned to have the records relating to his April 6, 2009 convictions for Class A misdemeanor operating a vehicle while intoxicated (“OWI“) and Class A misdemeanor resisting law enforcement expunged. On July 7, 2014, the trial court issued an order granting J.S.‘s petition. As part of this order, the trial court prohibited the Indiana Bureau of Motor Vehicles from disclosing J.S.‘s 2009 OWI conviction to the Commercial Driver‘s License Information System (“CDLIS“) as is required by existing federal and Indiana law.
[2] Appellants the State of Indiana, the Indiana Bureau of Motor Vehicles, and Kent W. Abernathy, in his position as Commissioner of the Indiana Bureau of Motor Vehicles (collectively, the “BMV“), now appeal the trial court‘s order prohibiting the BMV from disclosing J.S.‘s conviction to the CDLIS. In challenging the trial court‘s July 7, 2014 order, the BMV argues that the portion of the trial court‘s ruling relating to the BMV is erroneous as it is inconsistent with the intent of the General Assembly. Specifically, the BMV argues that the ruling violates both existing federal and Indiana law and would lead to illogical and absurd results. Concluding that the BMV is not barred from challenging the trial court‘s order and that the trial court erred in prohibiting the BMV from disclosing J.S.‘s conviction to the CDLIS, we reverse and remand to the trial court with instructions to amend its July 7, 2014 order to specifically allow the BMV to comply with the existing federal and Indiana laws requiring the BMV to disclose J.S.‘s conviction to the CDLIS.
[3] On April 6, 2009, J.S. was convicted of Class A misdemeanor OWI and Class A misdemeanor resisting law enforcement. In 2013, J.S. was convicted of Class D felony OWI while having a prior OWI conviction. As a result of his 2013 conviction, J.S., who held a CDL, received a lifetime prohibition from ever carrying a CDL.
[4] Following the General Assembly‘s adoption of a law allowing for the expungement of certain conviction records, on February 27, 2014, J.S. petitioned to have the records relating to his April 6, 2009 convictions for Class A misdemeanor OWI and Class A misdemeanor resisting law enforcement expunged. At the time J.S. filed his petition, he had two pending post-conviction petitions challenging his 2009 convictions. J.S.‘s petition indicated the prosecutor agreed to waive the requirement that J.S. not commit or be convicted of any crime within the five preceding years and that expungement of the 2009 convictions would resolve his pending petitions for post-conviction relief.2 On July 7, 2014, the trial court granted J.S.‘s petition and ordered that the records relating to J.S.‘s 2009 convictions be expunged. In granting J.S.‘s petition, the trial court also held that the BMV was prohibited from disclosing J.S.‘s 2009 conviction for operating while intoxicated to the CDLIS.
[5] On November 10, 2014, the BMV filed a Trial Rule 60(B) motion for relief from judgment. In this motion, the BMV argued that if it were to comply with the trial court‘s July 7, 2014 order, it would be violating existing federal and Indiana law. The trial court conducted a hearing on the BMV‘s motion on January 16, 2015. On February 2, 2015, the trial court issued an order in which it denied the BMV‘s motion. This appeal follows.
Discussion and Decision
[6] On appeal, we are faced with the question of whether the trial court erred in finding that the BMV was prohibited from reporting J.S.‘s 2009 OWI conviction to the national CDLIS database following the expungement of said conviction.
I. Standard of Review
[7] In order to determine whether the trial court erred in finding that the BMV was prohibited from reporting J.S.‘s 2009 conviction to the CDLIS, we must interpret the relevant federal and Indiana statutes.
The interpretation of statutes is a pure question of law we review de novo, and we therefore need not defer to the trial court‘s interpretation. Sanders v. Bd. of Comm‘rs of Brown County, 892 N.E.2d 1249, 1252 (Ind.Ct.App.2008); Johnson v. Morgan, 871 N.E.2d 1050, 1052-53 (Ind.Ct.App.2007). Our goal in construing a statute is to determine, give effect to, and implement the intent of our General Assembly. Sanders, 892 N.E.2d at 1252 (citing Sales v. State, 723 N.E.2d 416, 420 (Ind.2000)). We presume that the General Assembly intended that the
To determine the intent of the legislature, we examine the statute as a whole and also read sections of an act together so that no part is rendered meaningless if it can be harmonized with the remainder of the statute.
Alvey v. State, 10 N.E.3d 1031, 1032-33 (Ind.Ct.App.2014), aff‘d on reh‘g, 15 N.E.3d 72 (Ind.Ct.App.2014).
II. Overview of Relevant Authority
A. Federal Law vs. State Law
[8] “Under the Supremacy Clause of the United States Constitution, federal law is the supreme law of the land, and state law which conflicts with federal law is without effect.” Gibson v. Hand, 756 N.E.2d 544, 546 (Ind.Ct.App.2001) (citing Ziobron v. Crawford, 667 N.E.2d 202, 206 (Ind.Ct.App.1996), trans. denied). “State law actually conflicts with federal law where it is impossible for a citizen to comply with both state and federal requirements or if state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
B. Federal Statutes Relating to CDLs
[9] In order to promote safe travel, to lower the probability and severity of accidents involving commercial motor vehicles throughout the United States, and to ensure that persons responsible for driving commercial motor vehicles are qualified to operate said vehicles, the federal government passed the Motor Carrier Safety Improvement Act of 1999 (“MCSIA“). See Ind. Bureau of Motor Vehicles v. Orange, 889 N.E.2d 388, 390-91 (Ind.Ct.App.2008). To ensure that States would comply with the regulations of the MCSIA, the federal government conditioned the receipt of federal highway funding upon compliance with the MCSIA. See generally,
[10] Title 49 of the Code of Federal Regulations sets forth certain requirements relating to transportation with which States must comply. With regard to an individual who holds a CDL,
Post and maintain as part of the CDLIS driver record:
(1) All convictions, disqualifications and other licensing actions for violations of any State or local law relating to motor vehicle traffic control (other than parking, vehicle weight, or vehicle defect violations) committed in any type of vehicle.
(2) The following medical certification status information:
(i) Driver self-certification for the type of driving operations provided in accordance with
§ 383.71(b)(1) of this chapter, and(ii) Information from medical certification recordkeeping in accordance with
§ 383.73(o) of this chapter.
Further,
The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder‘s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.
[11] Each State‘s CDL program is subject to review by the Federal Motor Carrier Safety Administration (“FMCSA“).
(a) Following the first year of noncompliance. An amount up to 5 percent of the Federal-aid highway funds required to be apportioned to any State under each of sections
104(b)(1) ,(b)(3) , and(b)(4) of title 23 U.S.C. shall be withheld from a State on the first day of the fiscal year following such State‘s first year of noncompliance under this part.(b) Following second and subsequent year(s) of noncompliance. An amount up to 10 percent of the Federal-aid highway funds required to be apportioned to any State under each of sections
104(b)(1) ,(b)(3) , and(b)(4) of title 23 U.S.C. shall be withheld from a State on the first day of the fiscal year following such State‘s second or subsequent year(s) of noncompliance under this part.
C. Indiana‘s Expungement Law
[12] Effective July 1, 2013, the General Assembly adopted a law allowing for the expungement of certain criminal conviction records. See generally,
(b) Not earlier than five (5) years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period), the person convicted of the misdemeanor may petition the sentencing court to expunge conviction records contained in:
(1) a court‘s files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or services to the petitioning person under a court order;
that relate to the person‘s misdemeanor conviction.
(c) A person who files a petition to expunge conviction records shall pay the filing fees required for filing a civil action, and the clerk shall distribute the fees as in the case of a civil action. A person who files a petition to expunge conviction records may not receive a waiver or reduction of fees upon a showing of indigency.
(d) If the court finds by clear and convincing evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person does not have an existing or pending driver‘s license suspension;
(4) the person has successfully completed the person‘s sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence; and
(5) the person has not been convicted of a crime within the previous five (5) years;
the court shall order the conviction records described in subsection (b) expunged in accordance with section 6 of this chapter.
[13] Indiana Code section 35-38-9-6 further provided, in relevant part, that:
(a) If the court orders conviction records expunged under sections 2 through 3 of this chapter, the court shall do the following with respect to the specific records expunged by the court:
(1) Order:
(A) the department of correction;
(B) the bureau of motor vehicles; and
(C) each:
(i) law enforcement agency; and
(ii) other person;
who incarcerated, provided treatment for, or provided other services for the person under an order of the court;
to prohibit the release of the person‘s records or information in the person‘s records to anyone without a court order, other than a law enforcement officer acting in the course of the officer‘s official duty.
(2) Order the central repository for criminal history information maintained by the state police department to seal the person‘s expunged conviction records. Records sealed under this subdivision may be disclosed only to:
(A) a prosecuting attorney if:
(i) authorized by a court order; and
(ii) needed to carry out the official duties of the prosecuting attorney; and
(B) the Federal Bureau of Investigation and the Department of Homeland Security, if disclosure is required to comply with an agreement relating to the sharing of criminal history information.
(3) Notify the clerk of the supreme court to seal any records in the clerk‘s possession that relate to the conviction.
[14] However, effective July 1, 2015,
(a) If the court orders conviction records expunged under sections 2 through 3 of this chapter, the court shall do the following with respect to the specific records expunged by the court:
* * * *
(2) Order the central repository for criminal history information maintained by the state police department to seal the person‘s expunged conviction records. Records sealed under this subdivision may be disclosed only to:
(A) a prosecuting attorney, if:
(i) authorized by a court order; and
(ii) needed to carry out the official duties of the prosecuting attorney;
(B) a defense attorney, if:
(i) authorized by a court order; and
(ii) needed to carry out the professional duties of the defense attorney;
(C) a probation department, if:
(i) authorized by a court order; and
(ii) necessary to prepare a presentence report;
(D) the Federal Bureau of Investigation and the Department of Homeland Security, if disclosure is required to comply with an agreement relating to the sharing of criminal history information;
(E) the:
(i) supreme court;
(ii) members of the state board of law examiners;
(iii) executive director of the state board of law examiners; and
(iv) employees of the state board of law examiners, in accordance with rules adopted by the state board of law examiners;
for the purpose of determining whether an applicant possesses the necessary good moral character for admission to the bar;
(F) a person required to access expunged records to comply with the Secure and Fair Enforcement for Mortgage Licensing Act (12 U.S.C. 5101 et seq.) or regulations adopted under the Secure and Fair Enforcement for Mortgage Licensing Act; and
(G) the bureau of motor vehicles, the Federal Motor Carrier Administration, and the Commercial Drivers License Information System (CDLIS), if disclosure is required to comply with IC 9-24-6-2(d) relating to reporting a conviction for a violation of a traffic control law.
(Emphasis Added).
III. Analysis
[15] The BMV contends that the trial court erred in finding that it was prohibited from reporting J.S.‘s 2009 conviction for OWI to the CDLIS. Specifically, the BMV argues that the trial court‘s interpretation and application of
A. Whether the Trial Court‘s Ruling is Consistent with the General Assembly‘s Intent
1. Conflict with Existing Federal and Indiana Law
[16] The BMV first argues that the trial court‘s ruling should be found contrary to the General Assembly‘s intent because the trial court‘s interpretation of
[17] In Gibson, we were confronted with the question of whether the trial court erred in granting the petitioner, who was employed as a truck driver, a restricted CDL during a period in which his operator‘s license was suspended because of a chemical test failure. 756 N.E.2d at 545. The State argued that the trial court‘s order was in conflict with
“(a) General.—To avoid having amounts withheld from apportionment under section 31314 of this title, a State shall comply with the following requirements:
* * *
(10)(A) The State may not issue a commercial driver‘s license to an individual during a period in which the individual is disqualified from operating a commercial motor vehicle or the individual‘s driver‘s license is revoked, suspended, or canceled.
(B) The State may not issue a special license or permit (including a provisional or temporary license) to an individual who holds a commercial driver‘s license that permits the individual to drive a commercial motor vehicle during a period in which—
(i) the individual is disqualified from operating a commercial motor vehicle; or
(ii) the individual‘s driver‘s license is revoked, suspended, or canceled.
* * *
(b) State satisfaction of requirements.—A State may satisfy the requirements of subsection (a) of this section that the State disqualify an individual from operating a commercial motor vehicle by revoking, suspending, or canceling the driver‘s license issued to the individual.”
[18] In reviewing the trial court‘s ruling together with
This federal statute subjects Indiana to a potential loss of federal funding if it does not comply with
49 U.S.C.A. § 31311 . Clearly, the trial court‘s grant of Hand‘s Petition directly conflicts with49 U.S.C.A. § 31311(a)(10) , as it requires the BMV to issue Hand a restricted CDL during a period in which his operator‘s license was suspended due to a chemical test failure.Consequently, we find that the BMV has presented a prima facie case of error. Although Indiana law does not deny Hand the issuance of a restricted CDL, the BMV has established that Indiana will be subject to a loss of federal funds if it issues Hand a restricted CDL. Thus, it would be impossible to issue Hand a restricted CDL in compliance with the law of Indiana without conflicting and/or creating an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress, i.e.
49 U.S.C.A. § 31311(a)(10) . See Ziobron, 667 N.E.2d at 206. Therefore, we find that the trial court erred in granting Hand‘s Petition.
[19] The situation before us on appeal is similar to that presented in Gibson.
[20] Because we conclude that
2. Illogical or Absurd Results
[21] The BMV also claims that the trial court‘s ruling, which again prohibits the BMV from complying with
[22] Again, Indiana‘s CDL program is subject to review by the FMCSA.
(a) Following the first year of noncompliance. An amount up to 5 percent of the Federal-aid highway funds required to be apportioned to any State under each of sections
104(b)(1) ,(b)(3) , and(b)(4) of title 23 U.S.C. shall be withheld from a State on the first day of the fiscal year following such State‘s first year of noncompliance under this part.(b) Following second and subsequent year(s) of noncompliance. An amount up to 10 percent of the Federal-aid highway funds required to be apportioned to any State under each of sections
104(b)(1) ,(b)(3) , and(b)(4) of title 23 U.S.C. shall be withheld from a State on the first day of the fiscal year following such State‘s second or subsequent year(s) of noncompliance under this part.
[23] In addition, if Indiana fails to comply with the provisions of
[24] Given the substantial statutorily proscribed potential negative economic implications, it would be illogical and absurd to find that the General Assembly intended to create a law that would put Indiana at risk of losing over $32 million in federal aid or having its CDL program de-certified.
3. Recent Amendment
[25] Effective July 1, 2015, presumably in response to the instant case and cases like it, the General Assembly amended
[26] In sum, we cannot foresee a situation where the General Assembly would intend to (1) create a law that is in direct conflict with existing state and federal law, (2) put Indiana at risk of losing substantial sums of federal aid, or (3) risk the de-certification of Indiana‘s CDL program. Likewise, we believe that the recent amendment to
[27] We conclude that the trial court‘s order prohibiting the BMV from doing so is contrary to the intent of the General Assembly. In addition, even if we were to conclude otherwise, pursuant to the Supremacy Clause of the United States Constitution, any application of
[28] The judgment of the trial court is reversed and remanded with instruction.
KIRSCH, J., and ALTICE, J., concur.