Ind. Bureau of Motor Veh. v. Simmons

233 N.E.3d 1016

INDIANA BUREAU OF MOTOR VEHICLES and Joseph B. Hoage, in his official capacity as Commissioner of the Indiana Bureau of Motor Vehicles, Appellants-Defendants,

v.Fitz SIMMONS, A.G., S.D., C.O., K.W., W.A., B.W., K.H., S.R., J.T., K.O., S.O., and J.L.,¹ Appellees-Plaintiffs.

Court of Appeals Case No. 23A-PL-899

Court of Appeals of Indiana.

Filed April 9, 2024

Appeal from the Monroe Circuit Court, The Honorable Holly M. Harvey, Judge, Trial Court Cause No. 53C06-2106-PL-1347

Attorneys for Appellants: Theodore E. Rokita, Attorney General of Indiana, James A. Barta, Solicitor General of Indiana, Katelyn E. Doering, Deputy Attorney General, Indianapolis, Indiana

Attorneys for Appellees: Jon Laramore, Indiana Legal Services, Inc., Indianapolis, Indiana, Megan Stuart, Jessica Meltzer, Indiana Legal Services, Inc., Indianapolis, Indiana, Brent A. Auberry, David A. Suess, Faegre Drinker Biddle & Reath, LLP, Indianapolis, Indiana

Shepard, Senior Judge.

[1] The Appellees initiated litigation seeking to compel the Indiana Bureau of Motor Vehicles and Commissioner Joseph B. Hoage to include a third gender option on driver’s licenses and identification cards. The trial court so ordered. Finding error, we reverse and remand with instructions.

Facts and Procedural History

[2] In 2019, BMV began recognizing a third gender option on state driver’s licenses and identification cards. This option was represented by an "X" and meant "Not Specified." That same year, the Appellees applied to amend the gender markers on their state credentials to "X" in order to reflect their nonbinary gender. However, in 2020, BMV stopped offering or processing transactions with the gender indicator of "X." Consequently, it denied the Appellees’ applications.

[3] Appellees Simmons, S.R., K.H, A.G., and S.D. sought administrative review of the denial. The Administrative Law Judge issued her recommended order affirming BMV’s denial in February 2021.

[4] In June, all Appellees filed a complaint against BMV seeking declaratory and injunctive relief from BMV’s binary-only policy. The complaint alleged violations of the Administrative Rules and Pro- cedures Act (ARPA), the Fourteenth Amendment’s Equal Protection and Due Process Clauses, and the First Amendment. It included a petition for judicial review of the ALJ’s decision concerning Simmons, S.R., K.H, A.G., and S.D. The BMV moved to dismiss the complaint, and the court granted the motion as to the First Amendment claim but denied the motion as to the remainder. The court subsequently denied BMV’s motion for summary judgment and granted the Appellees’ petition for judicial review and motion for summary judgment. The court then entered a declaratory judgment and permanently enjoined BMV from refusing to allow non-binary designations on state credentials. BMV appeals.²

Issues

I. Whether the court erred by granting judicial review; and

II. Whether the court erred in granting summary judgment for the Appellees.

Discussion and Decision

I. Judicial Review

[1] [5] BMV contends the trial court erred in granting the petition for judicial review of the ALJ’s decision regarding Simmons, S.R., K.H, A.G., and S.D. because they failed to comply with the processes of the Administrative Orders and Procedures Act (AOPA). Specifically, BMV argues the request for review was untimely.

[6] The AOPA requires a party to petition for judicial review within thirty days after service of notice of the agency action. Ind. Code § 4-21.5-5-5 (1986). A party who fails to timely petition waives its right to judicial review. Ind. Code § 4-21.5-5-4(b)(1) (1986). This Court has found it significant that the AOPA " ‘establishes the exclusive means for judicial review of an agency action’ " and that it does not include a provision similar to Appellate Rule 1 that permits deviation from the AOPA’s procedural rules. Hunter v. State, Dep’t of Transp., 67 N.E.3d 1085, 1091 (Ind. Ct. App. 2016) (quoting Ind. Code § 4-21.5-5-1 (1994)), trans. denied. Citing Indiana Code section 4-21.5-2-2 (1986), the Court further emphasized that a person may waive any right conferred upon them by AOPA and concluded therefore that "there is no mechanism allowing the trial court to resurrect a waived right to judicial review." Hunter, 67 N.E.3d at 1091.

[7] Here, the ALJ issued her recommended order in February 2021, and the five Appellees neither objected nor sought reconsideration of that order. Likewise, they did not seek judicial review at any time before this lawsuit was filed in June 2021. Thus, their petition was untimely. The trial court erred in excusing the untimeliness. Accordingly, we reverse the court’s grant of the petition for judicial review.

[8] Nevertheless, the Appellees’ procedural waiver of their right to judicial review does not adversely affect their claims here because these five Appellees, indeed the Appellees as a whole, have brought a declaratory judgment action, which is distinct from judicial review of the decision of an administrative agency.

[9] The purpose of the Uniform Declaratory Judgment Act is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations …. " Ind. Code § 34-14-1-12 (1998). More particularly, a declaratory judgment action is a discrete action in which a person whose rights, status, or other legal relations are affected by a statute may seek a determination of any ques- tion of construction or validity arising under the statute to obtain a declaration of rights, status, or other legal relations thereunder. Ind. Code § 34-14-1-2 (1998).

[10] Accordingly, these Appellees are not challenging an agency action subject to judicial review but rather are contesting BMV’s binary-only policy. They asked the court to construe Indiana Code section 9-24-11-5, enter a declaratory judgment that BMV’s enforcement of the statute violated their rights, and permanently enjoin BMV from enforcing the policy.

[11] This Court has previously determined that "a challenge to the content of an agency’s rules and regulations was not properly raised in a petition for judicial review[ ] but is more appropriately considered in a declaratory judgment action." Ind. Dep't of Env't Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199, 1203 (Ind. Ct. App. 1992) (citing Ind. & Mich. Elec. Co. v. Public Serv. Comm’n, 495 N.E.2d 779 (Ind. Ct. App. 1986), trans. denied), trans. denied. The Court further noted our Supreme Court’s observation that " ‘under some circumstances a declaratory judgment is an available alternative to exhaustion of administrative remedies and judicial review,’ " Chem. Waste Mgmt. of Ind., 604 N.E.2d at 1203 (quoting State ex rel. State Election Bd. v. Superior Ct. of Marion Cnty., 519 N.E.2d 1214 (Ind. 1988)).

[12] A recent decision of our Supreme Court sheds further light on this subject. There, the Court considered whether the merits of a declaratory judgment action should have been considered by the trial court where the plaintiff had filed for judicial review and included a claim for declaratory judgment. The trial court denied the declaratory judgment request partly because the plaintiff did not file a separate complaint for a declaratory judgment. Concluding the trial court should have considered the declaratory judgment request on the merits, the Supreme Court emphasized the importance of the judicial system’s principle of judicial economy and stated, "While a party typically can only obtain judicial review of issues raised before an agency, [the plaintiff] was not seeking judicial review of this issue—it was seeking a declaratory judgment…. [The plaintiff] could have filed this declaratory judgment request as a separate action …." ResCare Health Servs., Inc. v. Ind. Fam. & Soc. Servs. Admin. - Off. of Medicaid Pol’y & Plan., 184 N.E.3d 1147, 1152 (Ind. 2022); see also Wilson v. Bd. of Ind. Emp. Sec. Div., 270 Ind. 302, 305, 385 N.E.2d 438, 441 (1979) (holding that, given the constitutional character of the issue presented, it was not necessary for plaintiff "to press the issue through administrative channels as a precondition to judicial review" where her action for declaratory judgment and injunctive relief was constitutional challenge to procedures employed by board in suspending and terminating benefits).

[13] Thus, we conclude that while the petition for judicial review was untimely filed and therefore improvidently granted, the action for declaratory judgment and injunctive relief as it relates to Simmons, S.R., K.H, A.G., and S.D. may nevertheless proceed as it is a distinct action.

II. Summary Judgment

[14] BMV next asserts the trial court erred by entering summary judgment in favor of the Appellees on their claims that BMV violated the Administrative Rules and Procedures Act (ARPA) and violated the Appellees’ rights to equal protection and due process. We address each argument in turn.

[2, 3] [15] When reviewing the grant or denial of summary judgment, our standard of review is similar to that of the trial court; summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); City of Indianapolis v. Cox, 20 N.E.3d 201, 205-06 (Ind. Ct. App. 2014), trans. denied. We consider only those materials properly designated pursuant to Trial Rule 56, and we construe all factual inferences and resolve all doubts as to the existence of a material issue in favor of the non-moving party. Young v. Hood's Gardens, Inc., 24 N.E.3d 421, 424 (Ind. 2015). We review a summary judgment de novo, and the fact that the parties have filed cross-motions for summary judgment does not alter the standard of review or change our analysis; "the party that lost in the trial court has the burden of persuading us that the trial court erred." Speedy Wrecker Serv., LLC v. Frohman, 148 N.E.3d 1005, 1008 (Ind. Ct. App. 2020).

A. Violation of ARPA

[16] In...