Blythe A. Whinery, et al v. Sue Roberson, et al (12/17/04 IndCtApp) [Employment Law]
Mathias, Judge
Blythe Whinery, on behalf of herself and a class of similarly situated plaintiffs, (“the Employees”) filed a complaint against Sue Roberson (hereinafter “the State”), in her official capacity as Director of the State Personnel Department (“the SPD”), in Marion Superior Court. The trial court entered judgment against the Employees’ complaint by way of summary judgment, and the Employees appeal, presenting the following restated issues for review: [1] Whether the State properly designated evidence to the trial court; [2] Whether the SPD’s conduct complied with the Employees’ contractual rights; [3] Whether the SPD’s conduct complied with the Employees’ statutory rights; [4] Whether the SPD implemented a classification system as required by Public Law 70-1996, section 3 (“P.L. 70-1996”); and, [5] Whether the Employees have a remedy pursuant to 42 U.S.C. section 1983 or the Indiana Constitution. We affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.Posted by Marcia Oddi at December 17, 2004 02:31 PMP.L. 70-1996 states:
The director of the [SPD] established by IC 4-15-1.8-2 shall do the following:* * *Make a survey of state government classification systems and salary schedules for professional employees in the types of natural resources professions that are employed by the department of natural resources for the following states: Michigan, Ohio, Illinois, Kentucky, Wisconsin, Minnesota, Missouri, Kansas and Nebraska.
Prepare a classification system and salary schedule for the professional employees of the department of natural resources who are employed in natural resource professions that: reflect the results of the survey conducted under subdivision (1); and provide for classifications and salary adjustments that are based on education and experience.
Implement the classification system and salary schedule developed under subdivision (2) in the 1997-1998 state fiscal year.
V. Classification System. The Employees claim the SPD failed to implement a classification system as required by P.L. 70-1996. The Employees argue,
Simply put, merely bumping all employees up one skill level does not qualify as preparing a classification system and salary schedule that reflected the results of [P.L. 70-1996]. [P.L. 70-1996] contemplated preparation of a document reflecting the minimum and maximum bi-weekly and annual salaries for state jobs by job category and skill level; what Defendants provided was a simple increase in pay for each employee. As a matter of law this fails to satisfy the dictates of [P.L. 70-1996].It is undisputed that P.L. 70-1996 requires the SPD to implement a classification system that “provide[s] for classifications and salary adjustments that are based on education and experience.” P.L. 70-1996(a)(2)(B). Sue Roberson indicated that the classification system required by the statute means “a document reflecting the minimum and maximum bi-weekly and annual salaries for state jobs by job category and skill level.” Appellants’ App. p. 329.
Br. of Appellant at 45-46.No such document was ever produced by the SPD. Accordingly, we direct the SPD to produce “a document reflecting the minimum and maximum bi-weekly and annual salaries for state jobs by job category and skill level” so as to comply with P.L. 70-1996.
VI. Remedies. The Employees claim they have a remedy under 42 U.S.C. section 1983 and Article One, Section Twenty-One of the Indiana Constitution. * * *
The Employees state: Under [42 U.S.C. § 1983], persons who have been deprived of a property right created by state law under color of law and without due process are entitled to bring a claim to remedy that deprivation.
The Employees’ two-paragraph argument that follows fails to provide citation support for this statement, enunciate the requirements for a successful 42 U.S.C. section 1983 action, or demonstrate they have a property right recognized under 42 U.S.C. section 1983. The Employees’ failures places this court in the position of advocate in developing these arguments. See footnote Accordingly, the Employees’ claim under 42 U.S.C. section 1983 is waived.
The entirety of the Employees’ argument pursuant to the Indiana Constitution states, Alternatively, the Class is entitled to prospective injunctive relief under . . . the Indiana Constitution for the deprivation of property without due process. See State v. Hayes, 378 N.E.2d 924, 931 (Ind. Ct. App. 1978) (Art. I, § 21 of the Indiana Constitution provides cause of action for deprivation of property).
The Employees fail to articulate what constitutes a property deprivation, among other prerequisites, pursuant to the Indiana Constitution and leave the task of developing their argument to this court. In criminal cases—where a defendant’s liberty is at stake—similar attempts to invoke the Indiana Constitution have regularly been held to constitute waiver. See Jackson v. State, 735 N.E.2d 1146, 1151 n.1 (Ind. 2000). Accordingly, the Employees’ claim under the Indiana Constitution is waived.
Conclusion. We affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.
DARDEN, J., and FRIEDLANDER, J., concur.