Olivia Covington for www.theindianalawyer.com

A former Indiana state employee can continue her case against the Indiana Department of Environmental Management after the Court of Appeals decided Thursday that her unlawful termination complaint stated a claim upon which relief can be granted and that sovereign immunity cannot apply.

Suzanne Esserman had been an employee of the Indiana Department of Environmental Management for 25 years when she was fired. During her employment, Esserman discovered that certain IDEM officials were misusing state funds.

Specifically, she alleged that applicants for funds from the Excess Liability Trust Fund, which pays for projects such as the remediation of contamination cause by leaking underground storage tanks, had not properly documented their claims and were, therefore, not reasonable and cost effective.

Esserman claims she was fired in retaliation for her reporting the alleged misuse of state funds, so she filed a complaint against the state agency in Marion Superior Court. IDEM moved to dismiss the claim, asserting that the state had not waived its right to sovereign immunity from retaliation claims under the False Claims Act, so Esserman’s complaint did not invoke the subject matter of the trial court. Further, IDEM argued that the facts alleged in Esserman’s complaint failed to state a claim upon which relief could be granted.

The trial court agreed and dismissed Esserman’s complaint, prompting her appeal in Suzanne E. Esserman v. Indiana Department of Environmental Management, 49A02-1605-PL-1129. The Indiana Court of Appeals disagreed with both of IDEM’s arguments and reversed the trial court’s decision Thursday.

First, Judge Edward Najam, writing for the unanimous panel, noted that the Indiana Supreme Court had previously defined “three limited circumstances in which common law sovereign immunity still exists: crime prevention, appointments to public office and judicial decision-making.” Esserman’s complaint does not invoke any of those three circumstances, Najam wrote, so IDEM is not entitled to common law sovereign immunity.

But IDEM had argued that in cases such as Skillman v. Ivy Tech Community College, 52 N.E.3d 11, 16 (Ind. Ct. App. 2016), the appellate court had stated “the general principle” that a “state may not be sued in its own courts unless it has waived its sovereign immunity by expressly consenting to such suit through a ‘clear declaration’ of that consent.’” But that case is different, Najam said, because it involves a suit against the state under federal law, which implicates the 11th Amendment, not Indiana common law.

In response to IDEM’s second argument, Najam wrote that Esserman’s complaint did state a claim upon which relief can be granted because she alleged that she was terminated in retaliation for her “numerous objections,” which is actionable under Indiana Code 5-11-5.5-8(a). Further, Najam wrote that Esserman did not state a qui tam action, so the False Claims Act’s limit to citizens’ ability to bring such an action on behalf of the state for the recovery of funds does not apply.

Thus, the appellate panel reversed the dismissal of Esserman’s complaint and remanded her case for further proceedings.

Jennifer Nelson for www.theindianalawyer.com

In a “he said, she said” case before the Indiana Court of Appeals Thursday, the judges were divided on whether admission of a gun into evidence prejudiced a woman’s convictions of resisting law enforcement and battery against a public safety official and her boyfriend’s battery conviction.

Summer Snow called police because her boyfriend was in the backseat of her car parked on her driveway and wouldn’t leave. Gary Police officer Terry Peck responded and attempted to get Reginald Harris out of the car. Harris refused, argued with Peck, and struck and pulled Peck into the car. Peck was able to handcuff Harris and place him in his vehicle.

During this time, Snow began cheering on her boyfriend. Peck asked her to be quiet and told her to go inside her house or face arrest. He heard the house door close and when she came back, Snow began shouting. The two ended up in a physical altercation after Peck tried to handcuff her. During this incident, Peck felt an object hit his knee and boot. It turned out to be a handgun.

Snow was arrested and admitted the handgun was hers. The state charged her with two counts of Level 5 felony battery against a public safety official, one count of Level 6 felony resisting law enforcement, and Class B misdemeanor disorderly conduct. She filed a motion in limine to prohibit the state from making any reference to or seeking to elicit from witnesses that a weapon was found at the scene.

The trial court denied the motion, finding the state’s proffer that Snow having a gun on her showed she was aggressive and trying to conceal a weapon can go before a jury. She was convicted of one of the battery charges and the felony resisting law enforcement charge.

She appealed, arguing the trial court abused its discretion in admitting the evidence of the handgun. The majority of Judges Elaine Brown and Cale Bradford upheld the trial court’s decision in Summer C. Snow v. State of Indiana, 45A03-1605-CR-1175 .

“The fact a concealed weapon fell from Snow’s person during the scuffle has at least some tendency to show, in light of the fact she had entered and exited her house and shouted at and dared Officer Peck, that Snow was acting in an aggressive manner. A defendant is not entitled to have her actions sanitized when evidence is presented to a jury,” Brown wrote. “On the record and circumstances before us, we cannot say the trial court abused its discretion in admitting testimony regarding Snow’s possession and concealment of a gun on her person at the time she shouted at and physically struggled with Officer Peck”

The majority also found any error in the admission of the testimony regarding the handgun is, at most, harmless.

Chief Judge Nancy Vaidik dissented, writing that this cased boiled down to Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the state. She found the admission, and the state’s “inflammatory characterization of it as ‘unregistered’ and ‘literally against the law,’ to not be a harmless error.

Vaidik also questioned the state’s argument, wondering why Snow would choose to attack a police officer if she was trying to hide her gun. In addition, she legally possessed the gun as she had it on her own property.

Vaidik would reverse and remand for a new trial.

The same panel was divided regarding Harris’ appeal regarding his Level 5 felony battery against a public safety official conviction, which the majority affirmed. Harris argued that the trial court erred in admitting evidence that Snow had a gun on her during the altercation with the officer. The majority pointed to its opinion in Snow, and noted that the jury heard extensive testimony regarding Harris’ actions and that it was “unlikely that the jury was significantly influenced” by the testimony regarding Snow’s gun.