Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Douglas M. Grimes

Douglas M. Grimes, PC

Gary, Indiana

ATTORNEYS FOR APPELLEE

KAREN FREEMAN-WILSON

Jewell Harris, Jr.

Nicholas A. Snow

Harris Law Firm, P.C.

Crown Point, Indiana

ATTORNEYS FOR 

APPELLEE/INTERVENOR 

ATTORNEY GENERAL OF INDIANA

Gregory F. Zoeller

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sharon Mallory,

Appellant-Plaintiff,

v.

Karen Freeman-Wilson, in her 

official capacity as Mayor of the 

City of Gary, Indiana,

August 16, 2016

Court of Appeals Case No.

45A04-1510-MI-1883

Appeal from the 

Lake Superior Court

The Honorable 

John M. Sedia, Judge
Court of Appeals of Indiana | Memorandum Decision 45A04-1510-MI-1883 | August 16, 2016 Page 2 of 7

Appellee-Defendant,

Attorney General of Indiana,

Appellee/Intervenor.

Trial Court Cause No.

45D01-1505-MI-16

Kirsch, Judge.

[1] Sharon Mallory (“Mallory”) appeals the trial court’s order affirming the 

decision of Karen Freeman-Wilson, in her capacity as Mayor of the City of 

Gary, Indiana (“Freeman-Wilson”), to remove Mallory from the Board of 

Commissioners of the Gary Sanitary District. Mallory raises several issues for 

our review, which we consolidate and restate as: whether the trial court erred 

in its determination that Mallory was properly removed as a commissioner of 

the Gary Sanitary District.

[2] We affirm.

Facts and Procedural History

[3] Richard Comer (“Comer”), President of the Board of Commissioners of the

Gary Sanitary (“the Board”), filed with Freeman-Wilson “Verified Charges in 

Support of the Removal of a Sanitary District Commissioner,” which sought 

the removal of Mallory from her position as a member of the Board based on 

charges of neglect of duty. Appellant’s App. at 15-17. His actions were initiated 
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under the authority of Indiana Code section 36-9-25-5, and subsection (a) of the 

statute states the requirements concerning the administrative hearings on the 

removal of commissioners. On October 17, 2014, a letter was sent via certified 

mail to Mallory, informing her of the charges and that a hearing on the charges 

would occur on October 28, 2014. Id. at 12-13. A certified mail receipt dated 

October 18, 2014 showed that Mallory received the letter. Id. at 14. 

[4] Mallory failed to attend the hearing on October 28. The hearing was held 

before Freeman-Wilson, in her capacity as the Municipal Executive of the City 

of Gary, and evidence was presented by Comer. On October 31, 2014, 

Freeman-Wilson issued an order, removing Mallory as a Gary Sanitary District 

Commissioner. Pursuant to Indiana Code section 36-9-25-5(b), Mallory could 

appeal the findings made by the municipal executive within ten days of the 

order. On November 10, 2014, Mallory filed a complaint with the Lake 

Superior Court, appealing the decision by Freeman-Wilson to remove her as a 

Commissioner. 

[5] Freeman-Wilson responded by filing a motion to dismiss Mallory’s complaint, 

arguing that Mallory failed to exhaust her administrative remedies. On January 

19, 2015, Mallory filed a “Motion for Order Finding Ind. Code § 36-9-25-5 

Unconstitutional.” Appellant’s App. at 49. The trial court conducted a hearing 

regarding the parties’ motions on September 23, 2015. On September 28, 2015, 

the trial court issued an order that affirmed the decision to remove Mallory 

from the Board and, as to any other issues, dismissed the complaint with 

prejudice. Id. at 9-11. Mallory now appeals.
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Discussion and Decision

[6] Mallory argues on appeal that the trial court erred in concluding that it lacked 

subject matter jurisdiction over the case due to her failure to exhaust 

administrative remedies. However, contrary to Mallory’s contention, the trial 

court did not dismiss her appeal of Freeman-Wilson’s decision due to lack of 

subject matter jurisdiction. Instead, the trial court affirmed Freeman-Wilson’s 

decision to remove Mallory from the Board. 

[7] Mallory was removed from the Board pursuant to Indiana Code section 36-9-

25-5, which states:

(a) A commissioner may not be removed from office except upon 

charges preferred before the municipal executive and a hearing 

held on them. The only permissible reasons for removal are 

neglect of duty and incompetence. The commissioner must be 

given at least ten (10) days’ notice of the time and place of the 

hearing and the opportunity to produce evidence and examine 

and cross-examine witnesses. All testimony shall be given under 

oath. The municipal executive shall put his findings in writing 

and file them with the municipal clerk.

(b) If the charges are sustained and the commissioner removed, 

he may appeal the findings within ten (10) days after the date 

they are filed with the clerk to the circuit or superior court of the 

county in which the municipality is located. The commissioner 

shall file an original complaint against the executive, stating the 

charges preferred and the findings made. The court shall hear the 

appeal within thirty (30) days after it is filed without a jury and 

shall either ratify or reverse the finding of the executive. The 

judgment of the court is final and an appeal may not be taken.
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[8] Judicial review of an administrative determination is limited to determining 

whether the administration possessed jurisdiction of the subject matter, whether 

the administrative decision was made pursuant to proper procedures, was based 

upon substantial evidence, was not arbitrary or capricious, and was not in 

violation of any constitutional, statutory or legal principle. City of Kokomo v. 

Kern, 852 N.E.2d 623, 627 (Ind. Ct. App. 2006) (citing Rynerson v. City of 

Franklin, 669 N.E.2d 964, 971 (Ind. 1996)). The court reviewing an 

administrative determination may not determine questions of credibility or 

weigh conflicting evidence and choose that which it sees fit to rely upon in 

determining whether there was substantial evidence to support an 

administrative action. Id. 

[9] Here, the evidence showed that Mallory was provided with a copy of the 

charges against her and written notice of the date and time of the hearing, 

which provided her an opportunity to present evidence on her behalf and 

question the witnesses against her. Mallory failed to participate in the hearing 

despite evidence that she received the notice through certified mail. Appellant’s 

App. at 14. Therefore, the record of the hearing reviewed by the trial court 

consisted of the written charges against Mallory, the notice provided to 

Mallory, and the order by Freeman-Wilson removing Mallory from the Board. 

In its order affirming the decision by Freeman-Wilson, the trial court found that 

“the statute conferred jurisdiction upon Freeman-Wilson as municipal 

executive to hear the matter, the decision was made pursuant to proper 

procedure, was based upon substantial evidence, and was not arbitrary or 
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capricious or in violation of any constitutional, statutory or legal principle.” Id. 

at 10. 

[10] Pursuant to Indiana Code section 36-9-25-5, the judgment of the trial court is 

final, and no appeal may be taken. Ind. Code § 36-9-25-5(b). However, 

Indiana Appellate Rule 5(A) states, “Except as provided in Rule 4, the Court of 

Appeals shall have jurisdiction in all appeals from Final Judgments of Circuit, 

Superior, Probate, and County Courts . . . .” This court has previously stated, 

“It is a fundamental rule of law in Indiana that in cases where procedural 

statutes conflict with procedural rules adopted by the Indiana Supreme Court, 

the procedural rules take precedence. In re J.H., 898 N.E.2d 1265, 1269 (Ind. 

Ct. App. 2009) (citing Bowyer v. Ind. Dep’t of Nat. Res., 798 N.E.2d 912, 916 (Ind. 

Ct. App. 2003)). Further, when there is a conflict between a statute and the 

Indiana rules of trial procedure, the rules of procedure will govern, and phrases 

in statutes contrary to the rules of procedure are considered a nullity. Id. at 

1270. We, therefore, find that we have jurisdiction to decide this appeal 

notwithstanding the language in Indiana Code section 36-9-25-5(b) to the 

contrary.1

 

1 Mallory argues that Indiana Code section 36-9-25-5 is facially unconstitutional because of the statement 

that no appeal may be taken from the judgment of the trial court. However, we decline to decide Mallory’s 

constitutional claim as we decide the case on the merits. “It is long established that ‘a constitutional question 

unnecessary to a determination of the merits should not be decided.’” Bureau of Motor Vehicles v. Scott, 497 

N.E.2d 557, 559 (Ind. 1986) (quoting Passwater v. Winn, 248 Ind. 404, 405, 229 N.E.2d 622, 623 (1967)). 
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[11] Based on the record before us, we find nothing to contradict the trial court’s 

findings. As the mayor of Gary, Freeman-Wilson was the municipal executive 

of the Gary Sanitary District and had subject matter jurisdiction over the 

removal of Mallory from the Board. The evidence showed that the proper 

procedure was followed in that Mallory was given at least ten days’ notice of 

the hearing and the opportunity to present evidence and question the witnesses 

and Freeman-Wilson issued written findings in her decision to remove Mallory 

from the Board. Evidence was presented at the hearing to support the 

allegations of Mallory’s neglect of duty and incompetence pursuant to Indiana 

Code section 36-9-25-5; therefore, the decision to remove Mallory from the 

Board was based on substantial evidence, was not arbitrary and capricious, and 

was not in violation of any constitutional, statutory, or legal principle. The trial 

court did not err in affirming Freeman-Wilson’s decision to remove Mallory 

from the Board. 

[12] Affirmed.

[13] Riley, J., and Pyle, J., concur.