Kriss v. Brown

• Decision Date: 29 May 1979
• Docket Number: No. 1-778A191,1-778A191
• Citation: 390 N.E.2d 193,180 Ind.App. 594
• Parties: Richard J. KRISS, Plaintiff-Appellant, v. Ward E. BROWN, Commissioner Indiana High School Athletic Association, Inc., Charles F. Maas, Anderson Community School Corporation by its Board of School Trustees, Dr. Harold E. Gallagher, Leonard Austin, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 193

390 N.E.2d 193

180 Ind.App. 594

Richard J. KRISS, Plaintiff-Appellant, v. Ward E. BROWN, Commissioner Indiana High School Athletic

Association, Inc., Charles F. Maas, Anderson Community

School Corporation by its Board of School Trustees, Dr.

Harold E. Gallagher, Leonard Austin, Defendants-Appellees.

No. 1-778A191.

Court of Appeals of Indiana, First District.

May 29, 1979.

Al S. Woolbert, David W. Stone, IV, Woolbert, Cunningham & Hulse, Anderson, for plaintiff-appellant

Stephen F. Burns, Cadick, Burns, Duck & Peterson, Indianapolis, for Ward E. Brown, Indiana High School Athletic Ass'n, Inc., and Charles F. Maas.

David W. Gotshall, Anderson, for Anderson Community School Corp., Dr. Harold E. Gallagher, and Leonard Austin.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Richard J. Kriss (Kriss) brings this appeal after the Henry Circuit Court entered judgment denying his request for a permanent injunction and dissolving a restraining order entered against defendants-appellees Ward E. Brown, Indiana High School Athletic Association, Inc. (IHSAA), Charles F. Maas, Anderson Community School Corporation by its Board of School Trustees, Dr. Harold E. Gallagher, and Leonard Austin, restraining them from enforcing an order entered by the IHSAA declaring Kriss ineligible to participate in interscholastic athletic events as a student at Anderson Highland High School for the school year 1977-78.

FACTS

Kriss played varsity basketball for his high school in North Judson during the 1976-77 school year. After school ended that spring, Kriss moved from his mother's residence in North Judson to the home of Mr. and Mrs. Adrian Richie in Anderson. In July of 1977 Mr. and Mrs. Richie were appointed guardians of Kriss.

The IHSAA is a voluntary organization which administers a program of interscholastic athletics for Indiana high schools. The IHSAA has adopted certain rules which must be followed by all member high schools.

Officials of North Judson High School notified the IHSAA during the summer of 1977 that rules of the IHSAA might have been violated when Kriss moved from North Judson to Anderson. After investigating the controversy, Commissioner Brown of the IHSAA issued a decision on September 1, 1977, declaring Kriss ineligible to participate in interscholastic athletics at Anderson because (1) the guardianship had been created primarily for the purpose of making Kriss eligible for athletic competition at Anderson, and (2) certain facts indicated that Kriss' move to Anderson had been the product of undue influence.

Kriss perfected an appeal. Pursuant to Rule 17, Section 3, of the IHSAA rules, the Executive Committee of the IHSAA provided Kriss a hearing at its next regular meeting. After considering the evidence presented, the Executive Committee ruled that Kriss was not eligible to participate in athletic competition at Anderson. The Executive Committee based its determination upon the same two reasons given previously by the Commissioner.

Kriss subsequently obtained a restraining order preventing enforcement of the order of ineligibility. He played basketball for Anderson Highland High School until January 20, 1978, the date on which the trial court entered the judgment from which Kriss brings this appeal.

ISSUES

1. Is the determination of the IHSAA supported by substantial evidence of probative value?

2. Did Kriss demonstrate hardship which should excuse him from operation of the IHSAA rules?

3. Did the trial court err in refusing to conduct a hearing de novo?

4. Did the IHSAA have a duty to provide Kriss procedural due process?

5. Was Kriss denied procedural due process?

6. Are the rules of the IHSAA void for vagueness and overbreadth?

7. Are the rules of the IHSAA void as an improper delegation of authority by public schools to a private organization?

8. Is the IHSAA's Rule 19 contrary to public policy?

9. Did the IHSAA fail to follow its own rules, and did the IHSAA act in an arbitrary and capricious manner?

DISCUSSION AND DECISION

Issue One

Kriss argues that the trial court erred in finding that the order of the IHSAA was supported by substantial evidence of probative value. Kriss insists that the evidence does not show that his change of residence was secured by undue influence or that the creation of the guardianship was for the primary purpose of gaining transferee eligibility.

Undue Influence

Undue influence presents a question of fact. It is usually proved by circumstantial evidence since it involves an operation of the mind. Direct evidence is required only to establish facts from which the trier of fact can make a proper inference of the presence of undue influence. Huber v. Huber, (1960) 131 Ind.App. 96, 164 N.E.2d 651; Love v. Harris, (1957) 127 Ind.App. 505, 143 N.E.2d 450.

Rule 20 of the IHSAA provides, in part:

"Section 1.

C The use of undue influence by any person or persons to secure or to retain a student or to secure or to retain one or both of the parents or guardians of a student as residents, may cause the student to be ineligible for high school athletics for a period subject to the determination of the Committee and shall jeopardize the standing of the high school in the Association.

Section 2.

C No member school student shall be eligible to participate in any interschool contest under the rules of the Association, if it shall be shown that they or any member of their family are receiving any remuneration, either directly or indirectly, to influence them or their family to reside in a given school district or territory in order to establish eligibility on the team of said schools, and any school permitting such participation shall, upon satisfactory evidence, submitted to the Committee, be suspended from membership in the Association for a term of not less than 365 days.

* * * "ee,

Immediately following Rule 20, the IHSAA sets forth examples of what may be considered undue influence:

"Q. What constitutes the use of undue influence?

A. An all-inclusive answer for all time and under all conditions cannot be given, but the use of any of the following inducements may come under the rule:

1. Offer or acceptance of money or other valuable consideration.

4. Offer or acceptance of board, room or clothing.

6. Free transportation.

7. Transportation by coach, principal, teacher or school official.

12. Any inducement to get parents or students to change residence for athletic reasons."

Kriss' own witnesses provided the following evidence.

Kriss' mother referred to the contents of a note Kriss left her when he went to Anderson initially:

"He did not want to be a burden to me or Larry, my boy, and wanted to play basketball, and he had to play by himself. He wanted to go to keep up his basketball."

Coach Fuller of Anderson Highland High School had coached at North Judson prior to his move to Anderson. Kriss and Coach Fuller had known one another at North Judson.

The Richies moved to the Anderson school district after a coach at North Judson refused to let their son play on the varsity team. The Richies and the Fullers became good friends after the Richies moved to Anderson.

Late in May 1977 Kriss arrived unannounced at the home of the Richies, and they agreed to let him live with them. Thereafter the Richies provided Kriss room board, lunch money, and as Kriss stated, "everything I need."

In June 1977 Coach Fuller provided Kriss with transportation to Anderson after Kriss had been to North Judson. This was arranged, in part, by a man who was interested in becoming assistant coach at Anderson Highland High School and who had discussed that possibility with Coach Fuller. When Kriss' sister visited Kriss in August 1977, Kriss took her to meet Coach and Mrs. Fuller at their home.

Kriss' witnesses offered explanations for the events described above. The Richies may have been interested only in providing Kriss a better home; Coach Fuller may have been returning a favor owed the Richies when he provided transportation for Kriss; Kriss may have had an unhappy home life in North Judson and may have moved solely for the purpose of gaining a better home. This court, however, cannot judge credibility of witnesses and cannot weigh the evidence. The direct evidence is required only to establish facts from which the trier of fact can make a proper inference of the presence of undue influence. Huber v. Huber, supra; Love v. Harris,supra. The record also includes other evidence favorable to the decision, all of which was admitted without objection from Kriss' attorney. ¹ We find substantial evidence of probative value supporting the factual determination that undue influence was exercised.

Guardianship

Rule 19, Section 3, of the IHSAA rules provides as follows:

"Section 3.

C When students transfer without a corresponding change of residence by parent-guardian the principal of the receiving school may certify residence eligibility provided there is no evidence of transferring for athletic reasons and bona fide evidence is on file that one or more of the following criteria has been met:

b. Student is a ward of a guardian whose residence is in the new district or territory.

A guardian appointed for the primary purpose of making an athlete eligible shall not be accepted.

* * * "n a

The IHSAA determined that the Richies were appointed guardians for the primary purpose of making Kriss eligible for athletics at Anderson Highland High School.

In the brief provided this court, Kriss contends that the guardianship was created for the primary purpose of making him eligible for enrollment in school at Anderson. Kriss' testimony before the Executive Committee does not support this contention. He informed the Executive Committee:

"A. The reason the guardianship was not done first is because my mom and my dad don't know Mr. and Mrs. Richie; I knew them a long time ago. They were like second parents to me; like an aunt and uncle. We wanted to find out if...