Indiana Dept. of Highways v. Dixon

• Decision Date: 25 July 1989
• Docket Number: No. 82S01-8907-CV-569,82S01-8907-CV-569
• Citation: 541 N.E.2d 877
• Court: Indiana Supreme Court
• Parties: INDIANA DEPARTMENT OF HIGHWAYS, Appellant, v. Kenneth E. DIXON, Appellee.

Page 877

541 N.E.2d 877

INDIANA DEPARTMENT OF HIGHWAYS, Appellant, v. Kenneth E. DIXON, Appellee.

No. 82S01-8907-CV-569.

Supreme Court of Indiana.

July 25, 1989.

Linley E. Pearson, Atty. Gen., David R. Treeter, Deputy Atty. Gen., Indianapolis, for appellant.

Thomas G. Krochta, Vanstone & Krochta, Evansville, for appellee.

ON CIVIL PETITION TO TRANSFER

GIVAN, Justice.

The Court of Appeals reversed a decision of the trial court ordering reinstatement of appellee as an Indiana Department of Highways' employee. Indiana Dept. of Highways v. Dixon (1987), Ind.App., 512 N.E.2d 1113. We grant transfer and affirm the trial court.

The issue on transfer is whether an at will public employee may be discharged for commenting upon matters of public concern. We hold that he may not.

The facts are: Kenneth Dixon was a Maintenance Worker IV for the Indiana Department of Highways (DOH) in the Evansville Sub-District. One day after work, Dixon visited the home of Mark Hardaman, a summer DOH employee. He told Hardaman about a possible job opening in the Princeton unit of the department. Dixon said, however, that he had heard DOH supervisors imply that Hardaman would not be hired because he had filed a racial discrimination claim with the National Association for the Advancement of Colored People against DOH.

When DOH management heard about this conversation, they determined that these statements were potentially damaging to the department and warranted further disciplinary action. Dixon's work record indicated that he had progressed through four formal steps of discipline and that the next appropriate step was dismissal. On September 25, 1984, DOH discharged Dixon for violating work rules which proscribed verbal abuse of a supervisor.

The department complaint board heard evidence on the dismissal and determined that Dixon's statements were serious and harmful to the department. The board found that because Hardaman believed what Dixon had told him, he therefore felt compelled to file a racial complaint against the department. Although Hardaman never actually filed this complaint, the board determined that DOH was put in jeopardy and that Dixon's statements warranted disciplinary action. Based on Dixon's work record, the board upheld his dismissal.

Dixon appealed the outcome of the hearing to the director of DOH. The appeal was denied. Dixon then filed a petition for judicial review under Indiana's Administrative Adjudication Act (AAA).

The trial court found that DOH dismissed Dixon for making off-duty statements about matters of public concern which are protected under the First Amendment. This finding required DOH to prove that these statements had actually harmed the department's operation. The trial court determined, as a matter of law, that such a finding was not supported by sufficient evidence. The trial court ordered Dixon reinstated and remanded the case to the department for a hearing to determine Dixon's back wages.

The Court of Appeals reversed the trial court's decision based on the finding that the trial court lacked subject matter jurisdiction. It reasoned that because Dixon was an at will employee, he was not entitled to a judicial review under the AAA.

DOH argues that Dixon did not file his petition for judicial review within the fifteen day time limit provided in the AAA and therefore the trial court lacked jurisdiction to review the case. Ind.Code Sec. 4-22-1-14(b) (Burns 1986 Repl.) ¹

DOH contends that the time limitation began to run when Anna Jean Seale, Dixon's mother and the resident at his last known address, signed the certified mail receipt on the letter which contained notice of DOH's final decision. Seale, who had signed other certified mail receipts from DOH for Dixon, signed the receipt on March 1. DOH maintains that Dixon's April 2 filing is therefore untimely and he loses all rights to judicial recourse. Dixon counters that he did not receive notice on March 1 but sometime later that month because he no longer lived at the address to which DOH sent the notice.

In an action for judicial review of an administrative determination, statutory compliance is a condition precedent to subject matter jurisdiction in the trial court. City of South Bend v. Brooksfield Farm (1981), Ind.App., 418 N.E.2d 305. The provisions concerning time are mandatory and a condition precedent to a court acquiring jurisdiction where review is sought from an administrative determination. State v. Van Ulzen (1983), Ind.App., 456 N.E.2d 459.

The statutory language of Ind.Code Sec. 4-22-1-14(b) provided:

"Said petition for review shall be filed within fifteen (15) days after receipt of notice that such order, decision or determination is made by any such agency. Notice shall be given in the manner prescribed by section 6 [4-22-1-6] of this act. Unless a proceeding for review is commenced by so filing such petition within fifteen (15) days any and all rights of judicial review and all rights of recourse to the courts shall terminate." (Emphasis added.)

The original wording of this section required a petitioner to file within fifteen days after the contested order, decision, or determination is made by the agency. Ind.Acts 1947, ch. 365 Sec. 14. In 1957, the legislature changed the wording of this section. The new section provided that the petition for review "be filed within fifteen (15) days after receipt of notice that such order, decision or determination is made by any such agency." Ind. Acts 1957, ch. 355 Sec. 4. (Emphasis added.) Although no comments accompany these amendments, obviously the legislature was concerned that the time period not begin until the aggrieved party has actual notice of the agency's final decision. The word "receipt" also distinguishes this time period from those which begin on the date when judgment is entered, e.g., Ind.Code Sec. 34-1-2-8 (Burns 1986 Repl.). After reviewing the legislative history of this act, we find that the legislature's use of the word "receipt" in starting the time period to run is significant.

In Solar Sources, Inc. v. Air Pollution Control Board (1980), Ind.App., 409 N.E.2d 1136, the Court of Appeals held that notice served on a party's attorney was not sufficient notice to start the fifteen day time limitation to run. It based its decision on the agency's failure to comply with Ind.Code Sec. 4-22-1-6's requirements that notice be addressed to the party and sent to its place of business or last place of residence. Id. at 1138-39. Because of the Air Pollution Control Board's noncompliance, Solar did not receive actual notice until several days after its attorney did.

DOH, unlike the Air Pollution Control Board in Solar Sources, complied with the requirements of Ind.Code Sec. 4-22-1-6. It sent notice by certified mail, addressed to Dixon at his last known place of residence, with return receipt requested. Dixon, however, no longer lived at that address and therefore did not receive notice of DOH's final decision until sometime after Seale signed the certified mail receipt.

Dixon argues that DOH has the burden to establish that he actually received notice on March 1. As explained above, without "receipt" of notice, the time period for filing does not begin. Dixon's petition on its face alleges compliance with the requirements and fulfillment of the conditions precedent embodied in Ind.Code Sec. 4-22-1-14. Furthermore, Dixon signed an affidavit which stated that he did not receive notice on March 1 but sometime later in the month. The only evidence which DOH presents to refute Dixon's contentions is the certified mail receipt which Seale signed.

We can analogize the petition for review to a complaint. When a complaint alleges on its face statutory compliance, the moving party in a motion to dismiss has the burden to affirmatively show by affidavit or other evidence that the trial court lacks jurisdiction. Sekerez v. U.S. Reduction Co. (1976), 168 Ind.App. 526, 344 N.E.2d 102. DOH was therefore required to come forward with affidavits or other affirmative evidence to establish that Dixon received actual notice on March 1. Because it failed to do this, it did not sustain its burden of proof. The trial court did not err in denying DOH's motion to dismiss for lack of subject matter jurisdiction.

DOH argues that Dixon was an employee at will, and as such, he is not entitled to a hearing or judicial review because he could be fired for any reason or no reason at all. The Court of Appeals agreed with this position and reversed the trial court's decision. Dixon asserts that because he was terminated for exercising a constitutionally protected right, not only did the trial court have jurisdiction pursuant to AAA, but also DOH did not have the right to discharge him for the stated reason.

DOH, in support of its position, points to the statute which excluded from the definition of administrative adjudication "the dismissal or discharge of an ... employee ... but includ[es] hearings on discharge ... for cause where the law authorizes or directs such [a] hearing." Ind.Code Sec. 4-22-1-2.

First, judicial review is not restricted to decisions made after an administrative adjudication. Ind.Code Sec. 4-22-1-14. The statute provides that "[a]ny party or person aggrieved by an order or determination made by any such agency shall be entitled to a judicial review thereof...." Id. Second, where the legislature intends to preclude judicial review of constitutional claims, its intent to do so must be clear. Webster v. Doe (1988), 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632. Finally, in Indiana there exists a constitutional right to judicial review of administrative actions. State ex rel. State Board of Tax Commissioners v. Marion Superior Court (1979), 271 Ind. 374, 392 N.E.2d 1161. Therefore, Dixon did have a right to a hearing and judicial review of the department's decision.

We next address the issue of Dixon's rights under the First Amendment. The United States...