holding that Sunshine Promotions was not required to exhaust its administrative remedies because it challenged the constitutionality of a statute and “[i]t is not within the province of an administrative officer to pass on the validity of a statute”
How later courts described this case
- holding that Sunshine Promotions was not required to exhaust its administrative remedies because it challenged the constitutionality of a statute and “[i]t is not within the province of an administrative officer to pass on the validity of a statute”
Written by the judges who cited it.
The opinion
IN THE
Court of Appeals of Indiana
FILED
Callie R. Burke, Jan 28 2026, 9:07 am
CLERK
Appellant-Plaintiff Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Indiana Department of Correction and Indiana State Personnel
Department,
Appellees-Defendants
January 28, 2026
Court of Appeals Case No.
25A-MI-1313
Appeal from the La Porte Circuit Court
The Honorable Julianne K. Havens, Judge
Trial Court Cause No.
46C01-2401-MI-13
Opinion by Chief Judge Tavitas
Judges Bailey and Kenworthy concur.
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 1 of 25
Tavitas, Chief Judge.
Case Summary
[1] Callie Burke appeals the trial court’s dismissal of her petition for judicial
review. Burke was terminated from her employment with the Indiana State
Prison. She appealed her termination to the warden of the State Prison, then
the State Personnel Department (“SPD”), and finally to the State Employees’
Appeals Commission (“SEAC”). After SEAC dismissed Burke’s complaint,
Burke filed a petition for judicial review pursuant to the Indiana Administrative
Orders and Procedures Act (“AOPA”), but she failed to timely file the agency
record, and the trial court dismissed the petition.
[2] On appeal, Burke argues that the trial court erred by dismissing her petition for
judicial review. But our Supreme Court’s opinion in Teaching Our Posterity
Success, Inc. (“TOPS”) v. Indiana Dep’t of Educ., 20 N.E.3d 149 (Ind. 2014),
requires the dismissal of Burke’s petition for judicial review. Accordingly, we
conclude that the trial court properly dismissed the petition for judicial review.
[3] Burke further argues that her petition also presented a claim for declaratory
judgment, which the trial court erred by dismissing. We agree that, under
notice pleading requirements, Burke’s initial petition for judicial review also
included a claim for declaratory judgment. We conclude, however, that
Burke’s classification argument could have been presented through the AOPA
and judicial review process. The trial court, thus, properly dismissed that claim
as part of the petition for judicial review. Burke’s argument regarding the facial
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 2 of 25
constitutionality of the Civil Service Reform Act, however, could not have been
resolved by SEAC. Accordingly, we conclude that this claim may proceed, and
the trial court erred by dismissing it. We affirm in part, reverse in part, and
remand. 1
Issues
[4] Burke raises several issues, which we consolidate and restate as:
I. Whether the trial court erred by dismissing Burke’s
petition for judicial review due to her failure to timely file
the agency record.
II. Whether the trial court erred by failing to consider Burke’s
claims for declaratory relief.
Facts
[5] Burke began working for the Indiana State Prison in May 2016. In November
2016, she began working as a correctional police officer and investigator. The
Indiana Department of Correction (“IDOC”) terminated Burke’s employment
on April 10, 2023, because she “failed to appropriately report and document
information [she] received, as well as appropriately reporting the
use/possession of a cellular device” by an inmate. Appellees’ App. Vol. II p.
30.
1
We held oral argument in this matter on December 16, 2025. We thank counsel for their presentations.
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 3 of 25
[6] Burke filed a Civil Service Employee Complaint, asserting her termination was
wrongful, and seeking reinstatement of her employment. The warden of the
Indiana State Prison denied Burke’s complaint and noted: “IC 4-15-2.2-24(a)-
(b) provides that ‘an employee in the unclassified service is an employee at will
and . . . may be dismissed, demoted, disciplined, or transferred for any reason
that does not contravene public policy.’ The information [Burke] provided does
not show that the reason for [her] dismissal is one which contravenes public
policy.” Id.
[7] The State Personnel Director (“Director”) then reviewed Burke’s complaint.
The Director concluded that: (1) Burke was an at-will employee and could be
dismissed for any reason that did not contravene public policy; (2) Burke’s
dismissal did not contravene public policy; and (3) Burke failed to identify a
law, rule, or policy allegedly violated by the IDOC.
[8] Burke appealed to SEAC, and in June 2023, SEAC entered a notice of
proposed dismissal for lack of jurisdiction under Indiana Code Section 4-15-2.2-
42(e). SEAC noted that Burke was “an unclassified Investigator III with the
Indiana State Prison” and that Burke had not identified a public policy
exception to her at-will employment, which is required for an unclassified
employee. Id. at 43.
[9] Burke filed a response and argued that she met her burden of establishing
jurisdiction. But SEAC entered a final order on December 20, 2023, and
dismissed Burke’s complaint because it “lack[ed] statutory jurisdiction.”
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 4 of 25
Appellant’s App. Vol. II p. 27. SEAC determined that Burke “failed to identify
a recognized public policy exception to her at-will employment as required by
the Civil Service Statute.” Id. SEAC found:
First, Petitioner argues that she should not be classified as an “at-
will” (unclassified) employee under the civil service system (I.C.
[Chapter] 4-15-2.2). However, pursuant to § 4-15-2.2-15(7) it is
the responsibility of the State Personnel (“SPD”) Director to
allocate each position in the state civil service to its proper class.
Pursuant to I.C. 4-15-2.2-26(d)(1) and (2) the SPD Director
periodically shall review positions in the state civil service and
reallocate to the proper classes . . . .
The State Employees’ Appeals Commission (“SEAC”) is
authorized to hear and investigate those appeals from state
employees as set forth in I.C. § 4-15-2.2-42 . . . . See I.C. § 4-15-
1.5-6(1). The civil service system statute allows classified
employees to appeal a dismissal, demotion, or suspension under
I.C. § 4-15-2.2-42. See I.C. § 4-15-2.2-23(b). An unclassified
employee may be dismissed, demoted, disciplined, or transferred
for any reason that does not contravene public policy. I.C. § 4-
15-2.2-24(b).
The civil service statute does not authorize SEAC to review how
the SPD Director has allocated state employees’ position[s]
within the civil service. Nor does Petitioner point out any such
authority. An administrative agency has only those powers
conferred on it by the legislature. LTV Steel Co. v. Griffin, 730
N.E.2d 1251, 1257 (Ind. 2000).
Further, the civil service statute does not provide the civil service
complaint process as an avenue for state employees to challenge
their classification in the civil service. (See I.C. [Chapter] 4-15-
2.2). As such, Petitioner’s argument that she should [be] allowed
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 5 of 25
to proceed on her civil service complaint before SEAC to pursue
her claim that she should be a classified employee instead of an
unclassified employee fails.
*****
Petitioner has not argued or brought forth any further claim in
her response to the Notice. Consequently, Petitioner has failed
to state a policy exception to her at will employment as was
noted in the Notice.
Id. at 27-28.
[10] On January 3, 2024, Burke filed a “Petition for Judicial Review.” Appellant’s
App. Vol. II p. 15. Burke challenged her classification and sought discovery to
determine how the SPD Director makes classification determinations. Burke
also argued that the Civil Service Reform Act, which was adopted in 2011,
violated the Indiana Constitution’s Single-Subject Clause, which states: “An
act, except for the codification, revision or rearrangement of laws, shall be
confined to one (1) subject and matters properly connected therewith.” Ind.
Const. Art. 4, § 19. Burke requested “judicial review regarding the
interpretation of the term ‘classified service’ per I.C. § 4-15-2.2-21(a), the SPD
Director’s discretion to add positions to that classification, and whether
Indiana’s Civil Service ‘Reform’ Act abided by the Single Subject Clause of the
Indiana Constitution. In short, Plaintiff requests a holistic determination as to
whether her termination from the IDOC without Due Process was proper.”
Appellant’s App. Vol. II p. 25.
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 6 of 25
[11] The State filed a response to the “Petition for Judicial Review.” Burke,
however, did not timely file the agency record. In June 2024, the State filed a
motion to dismiss the “Petition for Judicial Review” because Burke failed to
timely file the agency record. Burke responded that dismissal was not required
and that the agency record was not required to address the issues in the case.
On August 1, 2024, Burke filed the agency record.
[12] On January 21, 2025, the same day as a hearing on the motion to dismiss,
Burke filed a motion for leave to amend her “Petition for Judicial Review” to
“more fully lay out a count for Declaratory Judgment.” Appellees’ App. Vol. II
p. 59. The State objected to Burke’s motion for leave to amend her “Petition
for Judicial Review.” The State argued that the AOPA is the exclusive means
for judicial review of an agency action, and filing a declaratory judgment action
is not a suitable alternative to an AOPA action.
[13] On February 28, 2025, the trial court entered an order dismissing Burke’s
“Petition for Judicial Review” and denying her motion for leave to amend
“Petition for Judicial Review.” The trial court found:
6. Here, the Plaintiff failed to file the agency record by February
2, 2024, nor requested an extension of time within which to do
so. Instead, the agency record was produced and filed with the
Court six (6) months after the deadline.
7. The bright-line approach of the Indiana Supreme Court
appears to establish that if an administrative record reaches the
trial court in a way outside the mandatory rules and deadlines,
then the record is procedurally defective, and therefore is not
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 7 of 25
properly before the trial court. Should this occur, the trial court
cannot consider the petition. Allen County Plan Commission v. Olde
Canal Place Assoc., 61 N.E.3d 1266 (Ind. Ct. App. 2016); see also
TOPS[, 20 N.E.3d] at 155.
8. The Motion to Dismiss filed by Defendants herein is well-
taken. The Plaintiff was required to file the agency record or
request an additional extension of time by February 2, 2024, but
failed to do so. Therefore, this Court has no jurisdiction to
further hear the [“Petition for Judicial Review”]. This action
must be dismissed.
Appellant’s App. Vol. II pp. 13-14. Burke filed a motion to correct error, which
was deemed denied. Burke now appeals.
Discussion and Decision
I. Overview of the Civil Service System
[14] Prior to July 2011, the Indiana State Personnel Act served as the framework for
human resource management for state employees. See Ind. Code Chapter 4-15-
2 (repealed). As part of the Civil Service Reform Act, effective July 1, 2011, the
Legislature replaced the Indiana State Personnel Act with the State Civil
Service System codified at Indiana Code Chapter 4-15-2.2. The State Civil
Service System is divided into classified service and unclassified service. I.C. §
4-15-2.2-20.
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 8 of 25
[15] The State Personnel Director determines whether a state employee is in the
classified service or unclassified service. At the time of Burke’s termination,
Indiana Code Section 4-15-2.2-26 2 provided:
(a) The [State Personnel Director], after consulting with
appointing authorities and other qualified authorities, shall
determine, or cause to be determined, the authority, duties, and
responsibilities of all positions in the state civil service.
(b) The director shall prepare a classification plan that groups all
positions in the state civil service in classes, based on the
authority, duties, and responsibilities of each position. The
classification plan must set forth, for each class of positions, the
class title and a statement of the authority, duties, and
responsibilities of the class. Each class of positions may be
subdivided, and classes may be grouped and ranked in such
manner as the director considers appropriate.
*****
(d) The director periodically shall:
(1) review the positions in state civil service; and
(2) reallocate the positions to the proper classes based on
the duties and responsibilities of the positions at the time
of the review under subdivision (1).
2
Indiana Code Section 4-15-2.2-26 was amended effective July 1, 2025. The prior version is quoted here.
Under the amendments, subsections (a) and (b) remained the same, and subsection (d) was moved to
subsection (c).
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 9 of 25
[16] A “classified employee” is defined as an employee who “(1) has been appointed
to a position in the state classified service; (2) has completed the working test
period under section 34 of this chapter[ 3]; and (3) has been certified by the
appointing authority for that classification of positions.” I.C. § 4-15-2.2-4.
Generally, classified employees hold positions that have “a federal statutory or
regulatory requirement for the establishment and maintenance of personnel
standards on a merit basis . . . .” I.C. § 4-15-2.2-21(a) (listing eleven federal
programs that require state employees implementing the programs to be
employed on a merit basis). Classified employees can only be dismissed for just
cause and are entitled to appeal their dismissal. I.C. § 4-15-2.2-23.
[17] An unclassified employee is a state employee not in the state classified service.
I.C. § 4-15-2.2-22(a). The “unclassified service is separate from the state
classified service,” and “[e]xcept as expressly provided in this chapter, the
human resource management systems applicable to the state classified service
do not apply to the unclassified service.” I.C. § 4-15-2.2-22. An unclassified
employee is an “employee at will and serves at the pleasure of the employee’s
appointing authority.” I.C. § 4-15-2.2-24(a). An unclassified employee “may
be dismissed, demoted, disciplined, or transferred for any reason that does not
contravene public policy.” I.C. § 4-15-2.2-24(b).
3
The working test period involves a full performance appraisal of the employee’s work. I.C. § 4-15-2.2-34(a).
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 10 of 25
[18] “An employee in the state civil service system may file a complaint concerning
the application of a law, rule, or policy to the complainant.” I.C. § 4-15-2.2-
42(a). This administrative complaint “must identify the law, rule, or policy that
was allegedly violated.” 4 I.C. § 4-15-2.2-42(b). Unclassified employees may
only appeal a dismissal to the SEAC under the following conditions:
An unclassified employee must establish that [SEAC] has subject
matter jurisdiction to hear the employee’s wrongful discharge
claim by establishing that a public policy exception to the
employment at will doctrine was the reason for the employee’s
discharge. The former employee has the burden of proof on this
issue.
I.C. § 4-15-2.2-42(f) (emphasis added). A public policy exception to at-will
employment protects an employee “exercising a clear statutory right or obeying
4
The following complaint procedure is established:
Step I: The complainant shall reduce the complaint to writing and present the complaint to the
appointing authority or the appointing authority’s designated representative. The appointing
authority or designee shall conduct any investigation considered necessary and issue a decision,
in writing, not later than fifteen (15) calendar days after the date the appointing authority
receives the complaint.
Step II: If the appointing authority or the appointing authority’s designated representative does
not find in favor of the complainant, the complainant may submit the complaint to the director
not later than fifteen (15) calendar days after the date of the appointing authority’s finding. The
director or the director’s designee shall review the complaint and issue a decision not later than
thirty (30) calendar days after the date the complaint is submitted to the director.
Step III: If the employee is not satisfied with the director’s decision, the employee may submit
an appeal in writing to the commission not later than fifteen (15) calendar days after the date the
employee receives notice of the action taken by the director or the director’s designee. The
commission shall determine whether all previous steps were completed properly and in a timely
manner, and, subject to subsection (f), whether the employee and subject of the complaint meet
the jurisdictional requirements. If a procedural or jurisdictional requirement is not met, the
commission shall dismiss the appeal. If the procedural and jurisdictional requirements have
been met, the commission shall conduct proceedings in accordance with IC 4-21.5-3.
I.C. § 4-15-2.2-42(e).
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 11 of 25
a legal duty” from termination. Perkins v. Mem’l Hosp. of S. Bend, 141 N.E.3d
1231, 1235 (Ind. 2020). The public policy exception has been applied in several
situations, including filing a worker’s compensation claim, refusing to commit
an illegal act, or testifying at an unemployment hearing. Id.
[19] Decisions of SEAC “are subject to judicial review in accordance with IC 4-21.5-
3,” which is part of the AOPA. I.C. § 4-15-2.2-42(h). Under the AOPA in
effect when Burke filed her petition, we may set aside an agency’s action if the
“person seeking judicial relief has been prejudiced by an agency action that is”:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(2) contrary to constitutional right, power, privilege, or
immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
I.C. § 4-21.5-5-14(d) (2024).
II. Standard of Review
[20] “When we review an administrative agency’s decision, we stand in the trial
court’s shoes.” Brookston Res., Inc. v. Dep’t Nat. Res., 243 N.E.3d 1127, 1139
(Ind. Ct. App. 2024) (citing Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988,
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 12 of 25
991 (Ind. 2014)), trans. denied. The trial court here granted a motion to dismiss
Burke’s “Petition for Judicial Review.” “The standard of appellate review for
motions to dismiss under Rule 12(B) depends on whether the trial court
resolved disputed facts, and if so, whether there was an evidentiary
hearing.” TOPS, 20 N.E.3d at 151 (citing Wayne Cnty. Prop. Tax Assessment Bd.
of Appeals v. United Ancient Order of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind.
2006)). “We review de novo a court’s ruling on motions to dismiss for failure
to timely file necessary agency records where the court ruled on a paper
record.” Id.
III. The trial court properly dismissed the judicial review portion of
Burke’s “Petition for Judicial Review.”
[21] According to Burke, Burke’s “Petition for Judicial Review” contained both a
petition for judicial review and declaratory judgment claims. We first address
her argument that the trial court’s dismissal of her “Petition for Judicial
Review” on purely procedural grounds was improper. At the time Burke filed
her “Petition for Judicial Review,” Indiana Code Section 4-21.5-5-13 of the
AOPA provided:
(a) Within thirty (30) days after the filing of the petition, or
within further time allowed by the court or by other law, the
petitioner shall transmit to the court the original or a certified
copy of the agency record for judicial review of the agency
action, consisting of:
(1) any agency documents expressing the agency action;
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 13 of 25
(2) other documents identified by the agency as having
been considered by it before its action and used as a basis
for its action; and
(3) any other material described in this article as the
agency record for the type of agency action at issue,
subject to this section.
(b) An extension of time in which to file the record shall be
granted by the court for good cause shown. Inability to obtain
the record from the responsible agency within the time permitted
by this section is good cause. Failure to file the record within
the time permitted by this subsection, including any extension
period ordered by the court, is cause for dismissal of the
petition for review by the court, on its own motion, or on
petition of any party of record to the proceeding.
(emphasis added). Burke filed her “Petition for Judicial Review” on January 3,
2024, and she failed to file the agency record within thirty days. In fact, Burke
did not file the agency record until August 2024.
[22] In TOPS, 20 N.E.3d at 155, our Supreme Court addressed a party’s failure to
timely file an agency record after filing a petition for judicial review. There, the
petitioner “neither filed an official agency record nor requested an extension of
time to do so.” Id. at 151-52. The Court created a bright-line rule and held:
[A] petitioner for [judicial] review cannot receive consideration
of its petition where the statutorily-defined agency record has not
been filed. In our view this bright-line approach best serves the
goals of accuracy, efficiency, and judicial economy. Here
because TOPS did not file the agency record as anticipated by
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 14 of 25
AOPA, the trial court properly dismissed its petition for judicial
review.
Id. at 155 (footnote omitted).
[23] Similarly, in First American Title Insurance Co. v. Robertson, 19 N.E.3d 757, 763
(Ind. 2014), amended on reh’g, 27 N.E.3d 768 (Ind. 2015), First American failed
to transmit the agency record to the trial court as anticipated by AOPA. First
American, however, insisted “that the documents presented to the trial court
were sufficient to decide whether the Commissioner’s hearing order was void.”
First American Title, 19 N.E.3d at 762. Our Supreme Court applied the TOPS
bright-line rule and held that, because First American did not file the agency
record with the trial court, “its petition for judicial review cannot be
considered.” Id. at 763. The trial court, thus, erred by denying the
Commissioner’s motion to dismiss. Id.
[24] Burke argues that her failure to timely file the agency record does not mandate
dismissal and that the trial court was not obligated to dismiss her “Petition for
Judicial Review.” Burke also contends that the agency record was not required
because she “was not arguing a factual dispute that would require the Court to
wade into the agency record[.]” Appellant’s Br. p. 20. Burke, however, relies
upon pre-TOPS decisions. See id. at 18-19. TOPS and First American Title
definitively addressed these same arguments and rejected them. Based upon
TOPS, the trial court was required to dismiss Burke’s “Petition for Judicial
Review.”
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 15 of 25
[25] Next, Burke argues that the dismissal was based upon “a procedural
requirement that the legislature had already deemed unworkable and had
corrected through an amendment signed by the Indiana Governor long before
the [S]tate’s Motion to Dismiss was filed.” Id. at 21. Effective July 1, 2024
(more than six months after Burke filed her “Petition for Judicial Review”),
Indiana Code Section 4-21.5-5-13, which addresses transmittal of the agency
record, was amended to require “the office or ultimate authority,” rather than
the petitioner, to transmit the agency record within thirty days after receipt of
the petition for judicial review. I.C. § 4-21.5-5-13(a). According to Burke,
“[a]llowing this dismissal to stand would ignore the legislature’s clear intent to
create a fairer process for judicial review and effectively deny Appellant her
fundamental due process right to have her constitutional claims heard on the
merits.” Appellant’s Br. p. 21.
[26] “Generally, a statute applies prospectively unless it expressly states otherwise.”
Guzzo v. Town of St. John, 131 N.E.3d 179, 180 (Ind. 2019). There is no
language in Indiana Code Section 4-21.5-5-13 expressly suggesting these
statutory amendments regarding the agency record apply retroactively.
Accordingly, we apply the statutory changes prospectively only, and Burke’s
failure to timely file the agency record was fatal to her “Petition for Judicial
Review.” 5
5
In fact, we note that the amendments to the agency record requirement, which were effective July 1, 2024,
were part of House Enrolled Act 1003-2024. Indiana Code Section 1-1-5.5-24(a), which was added as part of
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 16 of 25
IV. The trial court erred by failing to address Burke’s claim for
declaratory relief.
[27] Next, Burke argues that her “Petition for Judicial Review” also requested
declaratory relief, which should not have been dismissed. According to Burke,
the declaratory relief concerned “the statutory interpretation of ‘classified
service’ [ ], the SPD Director’s discretion to add positions to that classification,
the constitutionality of the [Civil Service Reform Act], and whether the [Civil
Service Reform Act] abided by the Single-Subject Clause of the Indiana
Constitution.” Appellant’s Br. p. 12.
[28] The trial court did not address these arguments because it dismissed Burke’s
“Petition for Judicial Review” for failure to file a timely agency record. Burke’s
“Petition for Judicial Review” did not specifically mention the term
“declaratory relief.” Burke attempted to amend the “Petition for Judicial
Review” to “more fully lay out a count for Declaratory Judgment.” Appellees’
App. Vol. II p. 59. Burke’s motion to amend, however, was denied, and Burke
does not specifically appeal that denial. 6 Accordingly, this Court must
determine: (1) whether Burke’s “Petition for Judicial Review” included a claim
House Enrolled Act 1003-2024, specifically provides: “Except as provided in subsection (b), a SECTION of
HEA 1003-2024 does not apply to an administrative proceeding or a proceeding for judicial review pending
on June 30, 2024.” Confusingly, although the remainder of the amendments in House Enrolled Act 1003-
2024 were effective July 1, 2024, the addition of Indiana Code Section 1-1-5.5-24 was effective July 1, 2025.
Thus, Indiana Code Section 1-1-5.5-24 was not effective until after the trial court’s order here. Regardless,
however, this statute reinforces our view that the agency record amendments apply only prospectively.
6
Burke raised this argument for the first time in her Reply Brief, p. 17. An argument raised for
the first time in a reply brief is waived. Lockerbie Glove Co. Town Home Owner’s Ass’n, Inc. v. Indianapolis Historic
Pres. Comm’n, 194 N.E.3d 1175, 1184 n.7 (Ind. Ct. App. 2022).
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 17 of 25
for declaratory relief; and (2) whether Burke’s arguments could be presented in
a request for declaratory judgment.
1. Burke’s “Petition for Judicial Review” raised a claim for
declaratory judgment.
[29] Our Supreme Court has held that a judicial review petitioner may also include a
declaratory judgment claim in the complaint. See ResCare Health Servs., Inc. v.
Ind. Fam. & Soc. Servs. Admin., 184 N.E.3d 1147 (Ind. 2022) (holding that a
judicial review petitioner was not required to file a separate complaint to raise a
declaratory judgment claim). The issue is, thus, whether Burke pleaded a
declaratory judgment claim in her “Petition for Judicial Review.” Under our
notice pleading standards, “[a]ll that was required was pleading the operative
facts necessary to set forth an actionable claim . . . .” Id. at 1154.
[30] Under the Declaratory Judgment Act, “[a]ny person . . . whose rights, status, or
other legal relations are affected by a statute . . . may have determined any
question of construction or validity arising under the . . . statute . . . and obtain
a declaration of rights, status, or other legal relations thereunder.” Ind. Code §
34-14-1-2. Burke’s “Petition for Judicial Review” did not explicitly mention
declaratory relief. Burke, however, challenged her classification. Additionally,
she sought to determine how the SPD Director makes classification
determinations. Burke also argued that the Civil Service Reform Act, which
was adopted in 2011, violated the Indiana Constitution’s Single Subject Clause.
Accordingly, Burke was challenging her rights under the Civil Service Reform
Act. Under our notice pleading standards, we conclude that Burke pleaded the
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 18 of 25
operative facts in her “Petition for Judicial Review” necessary to present a
declaratory judgment claim.
2. Only Burke’s constitutional claim could be presented in the
declaratory judgment action.
[31] Although we conclude that Burke presented a declaratory judgment claim in
her “Petition for Judicial Review,” we must also determine whether the claims
at issue were properly presented through a declaratory judgment claim or were
required to be presented as part of her “Petition for Judicial Review.” The
AOPA’s judicial review procedures “establish[ ] the exclusive means for judicial
review of an agency action.” Ind. Code § 4-21.5-5-1. Our Supreme Court has
held that “Indiana courts have long recognized that petitioners may not use the
[declaratory judgment] act to sidestep AOPA.” In re R.L., 246 N.E.3d 257, 264
(Ind. 2024). “‘Where such an administrative remedy is readily available, filing
a declaratory judgment action is not a suitable alternative.’” Id. (quoting Carter
v. Nugent Sand Co., 925 N.E.2d 356, 360 (Ind. 2010)). “Holding otherwise
would gut the legislature’s demand that petitioners exhaust agency remedies
before going to court, and it would undermine the very litigation efficiency the
exhaustion requirement seeks to advance.” Id. Accordingly, to the extent
Burke’s claims could have been presented through judicial review, she cannot
avoid the judicial review procedures by arguing that she presented the claim
through a declaratory judgment action instead.
[32] In general, “‘[a]n administrative agency has only those powers that the
legislature has conferred to it, and unless we find the grant of powers and
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 19 of 25
authority in the statute, we conclude that no power exists.’” Ind. Bd. of
Pharmacy v. Elmer, 171 N.E.3d 1045, 1052 (Ind. Ct. App. 2021) (quoting
Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 902 (Ind. Ct. App.
2012), trans. denied), trans. denied. SEAC has the statutory authorization to do
the following:
(1) To hear or investigate those appeals from state employees
as is set forth in IC 4-15-2.2-42, and fairly and impartially
render decisions as to the validity of the appeals or lack thereof.
Hearings shall be conducted in accordance with IC 4-21.5.
(2) To make, alter, or repeal rules by a majority vote of its
members for the purpose of conducting the business of the
commission, in accordance with the provisions of IC 4-22-2.
(3) To recommend to the personnel director such changes,
additions, or deletions to personnel policy which the appeals
commission feels would be beneficial and desirable.
I.C. § 4-15-1.5-6 (emphasis added). Indiana Code Section 4-15-2.2-42(a)
provides: “An employee in the state civil service system may file a complaint
concerning the application of a law, rule, or policy to the complainant.” See
supra note 4 (detailing the administrative complaint procedures). SEAC is not
given statutory authority to make declaratory judgment determinations.
a. Burke’s Classification
[33] Burke argues that the SPD has failed to follow its statutory duties to update the
proper classifications, resulting in Burke’s denial of due process. The State
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contends that Burke’s claims regarding her classification and the SPD
Director’s failure to adjust classifications were “able to be considered” through
the AOPA’s judicial review process. Appellees’ Br. p. 26. Burke counters in
her reply brief that her “request for declaratory relief surrounding classified
service is immune from AOPA review and/or forfeiture.” Reply Br. p. 12.
[34] In its order, SEAC determined that it was not authorized “to review how the
SPD Director has allocated state employees’ positions within the civil service”
and that “the civil service statute does not provide the civil service complaint
process as an avenue for state employees to challenge their classification in the
civil service.” Appellant’s App. Vol. II p. 28. We, however, disagree with
SEAC’s determination.
[35] Under Indiana Code Section 4-15-2.2-26, the SPD Director has the authority
and duty to classify civil service positions. SEAC has the authority “[t]o hear
or investigate those appeals from state employees as is set forth in IC 4-15-2.2-
42,” I.C. § 4-15-1.5-6, and section 42 allows SEAC to consider “the application
of a law, rule, or policy” to the complaining employee, I.C. § 4-15-2.2-42(a).
An employee’s classification involves the application of a “law, rule, or policy”
to the complaining employee. As such, we conclude that SEAC has the
authority to review how the SPD Director has allocated classifications.
Because SEAC has this authority, this argument had to be presented through
the AOPA and judicial review process. Burke cannot sidestep the judicial
review process by arguing that this claim was part of her declaratory judgment
claim. Burke’s classification argument was properly dismissed as part of the
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“Petition for Judicial Review” due to Burke’s failure to file the timely agency
record.
b. Constitutional Challenge
[36] Finally, Burke argues that the 2011 Civil Service Reform Act is unconstitutional
because it was enacted in violation of Article 4, Section 19 of the Indiana
Constitution’s Single Subject Clause. According to Burke, the Act was
improperly included in a “must-pass omnibus bill entitled the ‘Budget Bill.’”
Appellant’s Br. p. 23.
[37] The State argues that Burke’s constitutional claim was able to be presented as
part of the agency review but that Burke failed to present her argument to
SEAC. In her reply brief, Burke argues: “Although the AOPA (I.C. § 4-21.5-5-
14(d)(2)), permits judicial review of agency actions that are contrary to
constitutional rights, this review is an inadequate remedy for challenging the
facial validity of the enabling statute itself. A successful challenge to the
constitutional validity mandates an independent Declaratory Judgment action
under the UDJA (I.C. 34-14-1 et seq.).” Reply Br. p. 11. Burke argues that she
is challenging “the very validity of the statute itself, not merely the agency’s
application of it.” Id. at 20.
[38] Our Supreme Court has held that, “even where ‘the ground of the complaint is
the unconstitutionality of the statute, which may be beyond the agency’s power
to resolve, exhaustion of administrative remedies may still be required because
administrative action may resolve the case on other grounds without
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confronting broader legal issues.’” Johnson v. Celebration Fireworks, Inc., 829
N.E.2d 979, 982 (Ind. 2005) (quoting Ind. Dep’t. of Envtl. Mgmt. v. Twin Eagle
LLC, 798 N.E.2d 839, 844 (Ind. 2003)). The exhaustion of administrative
remedies may be excused, however, “‘if the exercise would be futile.’” Id. at
984 (quoting M-Plan, Inc. v. Ind. Comprehensive Health Ins. Ass’n, 809 N.E.2d 834,
839 (Ind. 2004)). “To prevail upon a claim of futility, ‘one must show that the
administrative agency was powerless to effect a remedy or that it would have
been impossible or fruitless and of no value under the circumstances.’” Id.
(quoting M-Plan, 809 N.E.2d at 840).
[39] The State does not dispute that SEAC lacked the authority to resolve Burke’s
claim that the Civil Service Reform Act is facially unconstitutional.
Determining the facial constitutionality of the Civil Service Reform Act is
beyond SEAC’s statutory authority. See I.C. § 4-15-1.5-6. Accordingly, we
agree that SEAC was powerless to determine whether the Civil Service Reform
Act violated the Indiana Constitution, and we conclude that any requirement
that Burke exhaust her administrative remedies on that issue is excused because
of futility. See, e.g., Sunshine Promotions, Inc. v. Ridlen, 483 N.E.2d 761, 764-65
(Ind. Ct. App. 1985) (holding that Sunshine Promotions was not required to
exhaust its administrative remedies because it challenged the constitutionality
of a statute and “[i]t is not within the province of an administrative officer to
pass on the validity of a statute”), trans. denied. Here, Burke’s facial
unconstitutionality claim could not be resolved through the SEAC action;
however, the request for declaratory judgment regarding the facial
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unconstitutionality claim was viable in the trial court action. Accordingly, the
trial court erred by dismissing that portion of Burke’s “Petition for Judicial
Review.”
Conclusion
[40] We conclude that, under our notice pleading requirements, Burke’s “Petition
for Judicial Review” included both a petition for judicial review under AOPA
and a declaratory judgment claim. Applying our Supreme Court’s bright-line
rule announced in TOPS, the trial court properly dismissed the petition for
judicial review portion because Burke failed to timely file the agency record.
[41] As for Burke’s declaratory judgment claims, we conclude that Burke’s
classification argument was capable of being presented through the “Petition for
Judicial Review.” Burke cannot avoid dismissal of that claim by attempting to
include that claim in the declaratory judgment action. Burke’s facial
constitutionality claim, however, was not capable of being resolved by SEAC,
and thus, we remand for the trial court to consider that declaratory judgment
claim. Accordingly, we affirm in part, reverse in part, and remand.
[42] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Kenworthy, J., concur.
ATTORNEY FOR APPELLANT
Shaw R. Friedman
Laura M. Nirenberg
Friedman & Associates, P.C.
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 24 of 25
ATTORNEYS FOR APPELLEES
Theodore E. Rokita
Attorney General of Indiana
Samuel J. Dayton
Supervising Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-MI-1313 | January 28, 2026 Page 25 of 25