*1 coun- 75(A)(8), venue lies preferred may the Act an action
ty where commenced. in the
Here, petition her filed Shazi residence, compliance with county of her 34-26-5-4(b). As Indiana Code section county in a petition her Shazi filed venue, find no abuse dis- we preferred Muneer’s motion to denying cretion venue. transfer Affirmed. BARNES, J., J.,
RILEY, concur. ELMHURST SCHOOL: SAVE OUR SCHOOL, Indiana unincor HIGH association, Appellant-Plain porated tiff, FORT WAYNE COMMUNITY Wayne and Fort Commu
SCHOOLS nity Trus Board School Schools tees, Appellees-Defendants.
No. 02A04-1012-PL-746. Appeals of Indiana. Court 23, 2011. June Denied Oct. Transfer
Robert Owen Vegeler, Vegeler Law Of- fice, LLC, IN, Wayne, Fort Attorney for Appellants. Elliott,
Matthew Lawson, J. Beckman LLP, Wayne, IN, Fort Attorney Ap- pellee.
OPINION
BARNES, Judge. Summary
Case Save Our School: High Elmhurst School (“SOS”) appeals the trial court’s granting of the motion to dismiss SOS’s complaint filed Wayne Fort Community Schools Wayne and the Fort Community Schools Board of School (collectively Trustees “FWCS”). We affirm.
Issues
The restated issues before us are: Analysis decision FWCS’s I. whether (“Elm- School High Elmhurst motion Although to dis FWCS’s hurst”) judi- subject action *3 to this miss was not transmitted court on potentially violating as review cial agree parties apparently the that it appeal, Constitution; and Indiana the was a motion to dismiss under Indiana subject that decision is to II. whether 12(B)(6) Trial Rule for failure to state a allegedly an arbi- review as judicial granted. upon claim which relief could capricious governmental and trary legal sufficiency Such a motion tests the action. agency claim, not it. supporting the the facts Showclub, Jaba, Lair, Babes Inc. Facts (Ind.2009). 308, a N.E.2d Review of high operated six previously FWCS grant of a trial court’s or denial motion Elmhurst, Snider, Side, North schools: 12(B)(6) Rule novo. Id. is de “When Side, How- Northrop, Wayne. and South dismiss, we reviewing a motion to view the 22, 2010, ever, FWCS decided on March in the light most favorable to the pleadings necessary, budgetary rea- was for that it every nonmoving party, with reasonable sons, Elmhurst stu- to close Elmhurst. construed in the nonmovant’s fa inference faculty were to be transferred to dents and may Id. A not be complaint vor.” dis Side, Side, begin- or South Wayne, North for a claim missed failure to state unless it year. 2010-11 ning with the complaint on the is clear face of the that comprised par- is an association SOS complaining is not to party entitled who attended ents of children relief. Id. district apparently also other FWCS contends that taxpayers. merits, SOS property turning Before to the we Side, North and South Side all Wayne, briefly address contention that FWCS’s institutions, poorer in terms of educational appeal argues is SOS’s moot. FWCS that In performance, than Elmhurst. academic point, highly impractica it at this would be contention, pointed of this SOS support reopen that ble to Elmhurst and such an scores, comparative as ISTEP things such re-open only action event would rates, graduation assessments physical building Elmhurst and would not Department of Education. SOS Indiana staff, faculty, the identical restore and stu the financial and other rea- disputes also dents that had at Elmhurst existed before choosing to given sons for A closing. its' case becomes moot when it Elmhurst. longer parties is no live and the lack a legally cognizable interest the outcome 2010, complaint filed a
On June
SOS
or when no effective relief can be rendered
FWCS,
declaratory judgment against
parties.
High
to the
Sch. Athletic
seeking
Elmhurst
apparently
to force
Ass’n,
Durham,
Inc. v.
748 N.E.2d
although
prayer for relief
open,
remain
its
(Ind.Ct.App.2001). Even if we
were to
on that point.1
filing
was not clear
Before
this
deciding
assume without
case is
answer,
an
FWCS filed a motion
dismiss
moot,
17, 2010,
however,
exception
now
to the
complaint.
On November
court
complaint.
permits
mootness doctrine
to de
the trial court dismissed
if it
cide a moot case on the merits
involves
appeals.
SOS now
filing
apparently
preju-
complaint
1. The
of this
fol-
dismissed
the federal court without
complaint
lowed an earlier
filed in state
dice.
court,
court, then removed
federal
then
great public
meaningful
interest.
Id. at
and lawful
question
opportu-
educational
questions usually
411-12. Such
involve is- nity for the Plaintiffs and similarly situat-
likely
recur.
Id. at 412.
sues that are
App.
ed Elmhurst students.”
p.
Questions concerning
closing
of schools
Defendants,
additionally alleged, “The
pur-
budgetary
questions
for stated
reasons are
decision,
suant to
an unlawful
deny
great public
likely
interest and are
to the
Plaintiffs
reasonable education that
moot,
recur.
or not this case is
Whether
adequate
general
because it is not
we will address it on the merits.
uniformity.”
lacks
Id. SOS also contended
that the Education
and Equal
Priv-
*4
I. Constitutional Claims
ileges and
imposed
Immunities Clause
a
argument
We first address SOS’s
duty upon
“to meet a
FWCS
certain mini-
complaint against
that
its
ade
mal standard of
failing
education because a
quately stated claims for violations of the
system
educational school
provides
and
no
namely,
the Edu
Constitution —
system
education at all and is not a
that is
document,
cation
of that
as well
Clause
as general and uniform as required by the
Equal Privileges
the
and Immunities
Indiana Constitution.” Id. at 17-18. SOS
The
Clause.
Education Clause is found
repeats
appeal;
these assertions on
it also
8,
Article
Section of the Indiana Consti
claims that the Education Clause “creates
tution and states:
judicially
by
enforceable standards
which
Knowledge
learning, generally
and
dif-
the
provide
Defendants must
general
fused throughout
community, being
a
and uniform
system
school
to the Plain-
essential to the preservation of a free
Appellant’s
tiffs.”
Clearly,
Br. at 13.
the
government;
it shall
duty
be the
of the
underlying thrust of SOS’s constitutional
General Assembly
encourage, by
to
all
arguments is that
may second-guess
courts
means, moral, intellectual,
suitable
scien-
a school board’s determination to
a
tific,
agricultural improvement;
and
and
school,
certain
based on considerations of
law,
provide, by
to
general
for a
and
alleged
the
inferiority
academic
of the
Schools,
system
uniform
of Common
schools that
the
keep
board decides to
wherein tuition
charge,
shall be without
open. Simply labeling its claim as one
and equally open to all.
“general
aimed at the
and uniform” re-
Equal Privileges
The
and Immunities
quirement of the Education Clause does
23,
Clause is found in Article
Section
not mask what is
clear
the
substance of
states,
“The General Assembly shall
argument:
SOS’s
by being
that
forced to
citizen,
grant
not
to
or class of citi-
attend schools other than
zens,
immunities, which,
or
privileges
upon
students who used to attend there will not
terms,
the same
equally belong
shall not
receive the “superior” level of schooling
all citizens.”
alleged
Elmhurst is
to have provided.2
complaint,
In its
alleged,
“the
Despite
attempts
to claim
Plaintiffs
other
general
to a
and uni-
[sic]
wise,
system
we believe that
its
being
by
arguments
form school
are
violated
entirely
supreme
Defendants
decision to close Elm-
foreclosed
court’s
[sic]
forcing
hurst and
transfer
to the
decision in
three
Bonner ex rel. Bonner v. Dan
iels,
(Ind.2009).
transferee high
by denying
schools
a
Guided
rights
in the context of
benefits or
provision
corporations
constitutional
history,
general
we conclude that the Edu-
This is the
its
withheld from others.
*5
system contemplated by
of the Indiana Constitu-
cation Clause
and uniform
Schenck,
impose upon government
tion does not
v.
102
Constitution.” Robinson
(1885).
318,
698,
duty
par-
to achieve
an affirmative
1 N.E.
705
Ind.
resulting educational
ticular standard of
exclusively upon
SOS relies almost
Jus-
delegated
This determination is
quality.
Rucker’s dissent and Justice Boehm’s
tice
legislative discretion of the
to the sound
support
argument
in
of its
concurrence
And in
Assembly.
General
the absence
apply
does not
here.
In
that Bonner
duty,
a constitutional
there is no
of such
event, Justice Boehm’s concurrence does
judiciary
for the
to evaluate wheth-
basis
arguments.
support
not seem to
breached.
er it has been
provides
Rucker’s dissent
Justice
Bonner,
It
specifically
is true that Bonner dealt
particular
where a
student’s continued free
with a claim that the governor, State su-
Here,
public education
at
risk.
none of
instruction,
perintendent
the former Elmhurst students are being
State board of education were violating the
education;
denied a continued free public
Clause,
Education
whereas here SOS is
they all
opportunity
have the
to continue
FWCS,
challenging
politi-
actions of
their schooling
elsewhere
the FWCS
cal subdivision of the State. See Ind.Code
district. As is often the case with school
36-1-2-10,
§§
-13. The difference in the
closings, which can be traumatic for stu
governmental nature of the defendants is
dents, many Elmhurst
students
likely
irrelevant,
stated,
however. Bonner
“the
would have preferred
stay
they
where
Education
of the
Indiana Constitu-
desire, however,
were. That
does not
impose
tion does not
upon government an
protectable
translate into a
property inter
duty
affirmative
any particular
achieve
est in
keeping
open.
resulting
standard of
educational quality.”
Bonner, 907 N.E.2d at
(emphasis
add-
*6
disposes
Bonner also
of SOS’s
ed).
governmental
FWCS is a
entity. As
claim
Equal
under the
Privileges and Im
supreme
our
court
many years
observed
munities Clause of the Indiana Constitu
ago,
Assembly
the General
and others in tion.
It held that because
plaintiffs
government
State
essentially are entrusted
had no
right
constitutional
to receive an
with establishing
guidelines
broad
for the
education,
“adequate” public
they had no
tuition-free,
establishment of a
“general
right
declaratory
relief under the Equal
system
schools,
and uniform”
of public
Privileges and Immunities Clause. Bon
while local
corporations
school
must handle ner, 907
at
Equal
N.E.2d
522. SOS’s
Priv
particulars
of running those schools on ileges and
argument
Immunities
likewise
day-to-day
Robinson,
basis. See
102
sum,
must fail. In
SOS has failed to state
313-14,
at
Ind.
We is that claim that it has some kind of property FWCS is an administrative agency that keeping interest open. Elmhurst rendered an administrative decision in recognized Courts have a property closing and that decision should a free education generally. See be being arbitrary reversed as capri B.S. ex rel. evident, Schneider v. Board School might cious. As SOS is bor of Trustees, Fort Wayne Community rowing terminology developed under the Id. at application. from AOPA’s eluded and Proce- Orders Administrative
Indiana Blanch, we held that Relying on (“AOPA”) making this claim. 314.4 Act dures of from express exclusion IU legislature’s must, however, that concedes, as it SOS actions that IU’s scope meant AOPA’s whose decisions “agency” not an is Id. at judicial review. excluded from were deci- “agency” whose An AOPA. fall under words, the em- rejected we In other under AOPA to review subject sions are a “common that there was claim ployee’s of subdivision” political “a include does not of ac- judicial review IU’s right law” 4-21.5-1-3, -12. “Po- §§ I.C. the State. tions. as a “munici- is defined litical subdivision” district,” taxing special pal corporation reject conten- we must Similarly, corporations. in turn includes which right law” any there is “common tion that 36-1-2-10, -13. §§ I.C. corpora- the actions of a school to review Department Indiana In Blanck v. expressly as FWCS. FWCS tion such (Ind.2005), Correction, 829 N.E.2d application, AOPA’s from excluded prison whether court addressed statutory provi- point cannot challenge Depart was able inmate proceed its suit to that would allow sion (or lack enforcement ment of Correction’s Hayes indi- FWCS. As Blanch against enforcement) regard statutes of certain not rec- cate, generally courts do The court noted discipline. prisoner ing non-statutory, “common law” ognize “ related to action ‘agency governmental judicial review of of the de jurisdiction within the offender does note Indiana decision-making. SOS ” ex expressly was partment of correction’ 20-26-5-4(1), permits which Section Code agen of reviewable scope from the cluded body corporation of a school governing Blanch, AOPA. cy actions in the name of the and be sued” “to sue § 4-21.5-2- (quoting I.C. N.E.2d at clearly does provision This corporation. 5(6)). legis expression clear Given this cause of action give rise to a not itself intent, pris held that the the court lative *7 or corporation a school any against kind of action to right private oner had no provides body. merely It governing its disciplinary deci prison judicial review by otherwise-proper which mechanism sions. Id. may brought tenable lawsuits be legally or Hayes Blanck in v. upon expanded We defended, possibly as for breach of University, 902 Indiana Trustees tort, guidelines or in contract de (Ind.Ct.App.2009), trans. N.E.2d 303 Act. the Indiana Tort Claims University Hayes, an Indiana nied. In believe, however, neces that it is We do (“IU”) it IU after terminat employee sued court’s deci our sary to address employee’s The com employment. ed her School Board Soll in South Gibson IU, sion of contract breach plaint alleged (Ind.2002). There, man, N.E.2d 437 768 judicial law” re “common sought and also from challenged expulsion his student agency an of the action as view of IU’s This de marijuana. possessing at 306. Hayes, 902 N.E.2d With State. court, this a trial was reviewed judicial re cision “common law” respect to the court, supreme court. Our finally claim, educational we noted that state view identify the basis did not supreme court expressly ex- such as IU institutions 4- Indiana Code Section have been proposition, we cited should support of this 4. In 21.5-2-4(a)(3). This was a Section 4-21.5-2-5. Indiana Code error, correct citation as the scrivener’s DARDEN, J., decision was sub upon expulsion which the concurs. stated, judicial simply review. It
ject to J., RILEY, concurs in result with board is an administrative “A school separate opinion. of the body,” provision and cited a Indiana in repealed that was later Code RILEY, Judge, concurring result with Sollman, (citing N.E.2d at 441 I.C. separate opinion. 1—3(5)(2002)).5 noted, § It then “as 20^4— body, judicial with administrative re Although agree I majority’s with the An agency view of its decisions is narrow. decision to affirm the trial court’s motion will not be overturned unless it is decision dismiss, I respectfully disagree with the arbitrary or an error of law has purely majority’s analysis. Whereas the majority been made.” Id. The court also cited a lengthy embarks on a constitutional evalu- AOPA, provision of Indiana Code Section ation, I would declare appeal to be 4-21.5-5-14(d), stating applicable outcome, Regardless moot. of the it is review. Id. standard of clear that no effective relief can be ren- providing We do not read Solimán as parties. dered to the See High right quasi-AOPA judicial review of Ass’n, Durham, Sch. Athletic Inc. v. corporation might that a school decision N.E.2d 410 (Ind.Ct.App.2001). Elm- right judicial make. The review of an doors, hurst has closed its its former stu- expulsion unchallenged decision was dents and teachers have transferred to case, judi- here the right whereas schools, other equipment most of the squarely cial review is before us. Addi- redeployed has been elsewhere. More- tionally, expulsion impacts decision over, FWCS asserts that due to its collec- constitutionally-protected prop- student’s agreement, tive bargaining teachers could in a erty free education. position re-opened bid for a at a B.S., F.Supp.2d By at 898. con- See result, facility, and as if forced to re- held, trast, already we have as open, probably would completely differ- any constitutionally-protect- not identified ent. right upon ed or interest which FWCS when it decided to Elm- infringed opinion, In its the majority develops a such, hurst. As we decline to create a constitutional analysis of the Education challenge “common law” that deci- Equal Privileges and the and Im- sion. munities very Clause based on a limited *8 Conclusion clearly fact-situation. The record reflects failed to state a claim that it is majority that the bases its evaluation on entitled to relief for either a violation of complaint; the assertions listed in SOS’s the Indiana Constitution or un- conducted, discovery no has been the sum- a theory der of a “common law” to mary judgment stage has not even been judicial review of FWCS’s decision to close reached. While I do not po- dismiss the Elmhurst. We affirm the trial court’s here, tential I involved granting of FWCS’s motion to dismiss. prefer would to embark on a constitutional analysis
Affirmed. after more facts known and 20-4-1-3(5) stated, education, Indiana Code Section der the control of a local board of " trustees, ‘Administrative unit' shall mean a school board of school or board of school corporation comprising all the area under a commissioners." single system of local administration and un- created the case would precedent State, See Juskulski v. valuable. more (A (1934) N.E. Ind. light be considered in must precedent to which it cause
the circumstances addressed). was of the COMMITMENT In the Matter S.S., Appellant-Respondent, OF SERVICES, HEALTH MID WISHARD TOWN COMMUNITY MENTAL CENTER, Appellee-Peti
HEALTH tioner.
No. 49A02-1011-MH-1251. Appeals Indiana. Court 24, 2011. June Anglemeyer,
Matthew D. Marion Coun- ty Public Agency, Indianapolis, Defender IN, Attorney Appellant. Counsel, Bandy, Deputy
Robin Wishard Services, IN, Health Indianapolis, Attor- ney for Appellee.
OPINION KIRSCH, Judge. appeals
S.S. from the trial court’s order for her temporary *9 Although commitment. already S.S.’s expired, commitment has following she raises the consolidated and restated issue for our review: whether the trial jurisdiction preside court lacked her proceedings over commitment because report emergency her following deten- tion was of her period filed after deten-