Commissioner, Indiana Department of Insurance v. Alvin C. Putman
Commissioner, Indiana Department of Insurance v. Alvin C. Putman
Dissenting Opinion
[21] I respectfully dissent from the majority's decision to reverse the trial court's decision and to revoke Putman's bail agent license based on his conviction for a Class A misdemeanor. While I agree with the majority that the main issue focuses on whether a Class A misdemeanor battery includes an element of violence, I reach the opposite result.
[22] The Commissioner is authorized to revoke a bail agent license if the bail agent is convicted of a "disqualifying offense." See I.C. § 27-10-3-8(d). A disqualifying offense is defined as either a felony or "[a] misdemeanor if an element of the offense involves dishonesty, violence, or a deadly weapon." I.C. § 27-10-1-6 (emphasis added). Accordingly, because Putman was convicted of a Class A misdemeanor, the revocation of his license would only be justified if "an element of the offense [included] dishonesty, violence, or a deadly weapon." I.C. § 27-10-1-6. Turning to the elements of a Class A misdemeanor battery, the legislature has defined the offense as:
A person who knowingly or intentionally:
(b)(1) touches another person in a rude, insolent, or angry manner; or (2) in a rude, insolent, or angry manner places any bodily fluid or waste on another person; commits battery, a Class B misdemeanor.
(c) the offense described in subsection (b)(1) or (b)(2) is a Class A misdemeanor if it results in bodily injury to any other person.
I.C. § 35-42-2-1(B)(c). "Bodily injury" requires a finding of "any impairment of physical condition, including physical pain." I.C. § 35-31.5-2-29. Therefore, as the elements of a Class A misdemeanor battery include a finding of 'bodily injury' amounting to 'physical pain' but is silent as to an element of 'violence,' I conclude that a Class A misdemeanor battery is not a disqualifying offense for the purpose of revoking Putman's bail agent license. See, e.g. , Halligan v. State ,
Opinion of the Court
[1] The Commissioner of the Indiana Department of Insurance appeals the trial court's order reversing its decision to revoke Alvin C. Putman's bail agent license. The issue is whether the court erred in entering its order. We reverse and remand.
Facts and Procedural History
[2] On September 17, 2015, the Enforcement Division of the Indiana Department of Insurance filed a Motion to Revoke Bail Agent License with the Commissioner which alleged that Putman had been found guilty of battery as a class D felony on September 16, 2015, in Fulton County (the "Criminal Cause") and which requested an order revoking Putman's bail agent license. That same day, the Commissioner issued an order revoking Putman's license and providing that he may not reapply for a license until ten years from the date of his conviction or release from prison, parole, or probation, whichever is later. On January 21, 2016, Putman filed a motion to rescind the Commissioner's order stating that he was convicted of battery as a misdemeanor.
[3] On February 3, 2016, the Enforcement Division filed a Motion to Modify Revocation Order on Bail Agent License stating that the court in the Criminal Cause entered a sentence against Putman on November 24, 2015 as a class A misdemeanor and requesting that the Commissioner issue a modified order which reflected the appropriate restriction on reapplication of five years instead of ten years as originally ordered. Putman filed a reply arguing that his misdemeanor battery conviction did not constitute a qualifying offense to revoke his license because it was not a misdemeanor in which an element of the offense involves violence under
[4] On April 6, 2016, an administrative law judge (the "ALJ") held a hearing. At the hearing, the following exchange occurred:
[ALJ]: Yes. So I think it boils down to a question of whether or not a person who commits a Class A misdemeanor battery causes injury.
*101[Putman's Counsel]: Okay. And injury is defined as to include pain, your Honor. And I would ask the Court to take judicial notice of Indiana Code 35-31.5-2-29... that defines bodily injury: Any impairment of physical condition including physical pain. The fact is that Mr. Putman was convicted of battery based upon spanking his grandson. And the whole purpose of spanking his grandson was to dissuade his grandson from doing the behavior, continuing the behavior of which he was engaged in. It was to inflict some degree of transient physical pain. That's the whole purpose of spanking a child.
[ALJ]: Yes. There's a difference between pain and injury.
[Putman's Counsel]: Well, not really. Not according to that statute. Bodily injury includes physical pain.
[ALJ]: Includes.
[Putman's Counsel]: Okay. The testimony that was provided at trial and that we'll provide you again today is there was no injury, no visible injury of any kind to this child. No marks. No redness. No bruises. Nothing.
Appellant's Appendix Volume II at 120-121. Counsel for the Commissioner noted that the dictionary definition of violence "is using or involving the use of physical force to cause harm or damage to someone or something."
On the recording, [her son] is screaming and crying that he is being choked. He was being carried because when he goes into full meltdown, he flops on the ground kicking and screaming. So my father picked him up the best he knew how, trying to not get kicked and bit and scratched, and when he accidentally hit the dial button and it went to a recording, [her son] is screaming and hollering, "You're choking me," on the recording, screaming.
[5] On April 21, 2016, the ALJ issued Findings of Fact, Conclusions of Law and Recommended Order. The ALJ concluded that Putman's conviction of battery as a class A misdemeanor warrants the revocation of his bail agent license with a five-year waiting period before being eligible to reapply under
[6] On June 6, 2016, Putman filed a Petition for Judicial Review and for Stay of Final Order with the trial court. In his petition, Putman stated that his conviction for battery as a class A misdemeanor resulted from a spanking which he administered to his grandchild and argued that battery as a class A misdemeanor does not include an element of violence and that his *102bail agent license should be restored. On August 17, 2016, this court affirmed Putman's conviction for battery as a class A misdemeanor in the Criminal Cause by memorandum decision. See Putman v. State , No. 25A03-1512-CR-2253,
[7] On March 6, 2017, the trial court held a hearing on Putman's petition for judicial review at which it took judicial notice of this Court's August 17, 2016 memorandum decision. On April 18, 2017, the trial court entered Findings of Fact, Conclusions of Law and Judgment. It found that, because Putman was convicted of battery as a class A misdemeanor, the Commissioner's revocation of Putman's license would be in accordance with Indiana law if an element of the offense involved violence and concluded that "[a]n A misdemeanor battery in the State of Indiana does not include an element of violence." Appellant's Appendix Volume II at 15. The court ordered that the Commissioner's May 6, 2016 Final Order be set aside. It also ordered that Putman was authorized to continue exercising the rights and privileges associated with his bail agent license and that his license shall not be revoked or otherwise restricted based upon the misdemeanor conviction.
[8] On May 9, 2017, the Commissioner filed a motion to correct error arguing that the relief the court granted in ordering that Putman's license would not be restricted based upon the misdemeanor conviction was not available on judicial review and requested that the court vacate its order with respect to prohibiting future actions of the Commissioner and remand to the Commissioner for further proceedings. On May 30, 2017, the trial court issued an Order on Motion to Correct Error which granted the Commissioner's motion and remanded the matter to the Commissioner for any further proceedings which are or may become necessary. On June 29, 2017, the Commissioner filed a notice of appeal.
*103Discussion
[9] The issue is whether the trial court erred in reversing the Commissioner's decision to revoke Putman's bail agent license. The Administrative Orders and Procedures Act limits judicial review of agency action. Fishburn v. Ind. Pub. Ret. Sys. ,
[10] A trial court and an appellate court both review the decision of an administrative agency with the same standard of review. Fishburn ,
[11] The Commissioner argues that battery as a class A misdemeanor fits the definition of a disqualifying offense under
[12] Putman responds that battery does not require an act of violence and that the Commissioner failed to properly apply
*104[13]
[14]
[15] To the extent we must interpret these statutes, our goal is to determine and give effect to the intent of the legislature. Fishburn ,
[16] In addition, an interpretation of a statute by an administrative agency charged with the duty of enforcing the statute "is entitled to great weight, unless this interpretation would be inconsistent with the statute itself."
[17] The Commissioner determined that Putman's offense, battery *105against his grandchild as a class A misdemeanor, constituted a disqualifying offense under
[18] In addition, according to Putman's petition for judicial review, his battery conviction resulted from a spanking which he administered to his grandchild. Putman's daughter testified before the ALJ that Putman accidentally hit the dial button, it went to a recording, and in the recording her son is screaming and hollering that he was being choked. While we do not attempt to establish the boundaries of the occurrences in which an element of a misdemeanor offense involves violence, we cannot conclude that the Commissioner was unreasonable in determining that Putman's battery of his grandchild resulting in bodily injury included an element which involved violence for the purpose of revoking his bail agent license in this case. See Fishburn ,
Conclusion
[19] For the foregoing reasons, we reverse the ruling of the trial court and remand consistent with this decision.
[20] Reversed and remanded.
Baker, J., concurs.
Riley, J., dissents with opinion.
Putman argues in his appellee's brief that the Commissioner's appeal is untimely and that the trial court's order granting the Commissioner's motion to correct errors did not extend the period during which the Commissioner was required to file a notice of appeal. Ind. Appellate Rule 9(A) provides in part that a party initiates an appeal by filing a notice of appeal with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court within thirty days after the entry of a final judgment is noted in the chronological case summary. Appellate Rule 9(A) further provides: "However, if any party files a timely motion to correct error, a Notice of Appeal must be conventionally filed within thirty (30) days after the court's ruling on such motion is noted in the Chronological Case Summary ...." (Emphasis added). Here, the trial court's ruling on the Commissioner's motion to correct error is noted in the chronological case summary in an entry dated May 30, 2017, and the Commissioner's notice of appeal is file-stamped by the Clerk on June 29, 2017. The Commissioner's notice of appeal is not untimely. Also, to the extent Putman asserts the Commissioner may raise only claims on appeal which were raised in its motion to correct error, we have observed that "a party filing a motion to correct error need not raise every issue in the motion that will be raised on appeal," Dixon v. State ,
To the extent Putman challenges portions of the Commissioner's brief which cites language from this court's August 17, 2016 memorandum decision, we note that, at the March 6, 2017 hearing, counsel for the Commissioner asked if the trial court would like to take notice of the memorandum decision, the court answered "I mean, I can certainly take notice of that," and Putman's counsel stated: "We certainly-there's no discussion, no disputed facts, that he was convicted of a Class A misdemeanor. We knew that when we before and that hasn't changed." Transcript Volume 2 at 3. We decline to strike the portions of the Commissioner's brief which recite language from this court's August 17, 2016 memorandum decision.
While the dissent asserts that the revocation of Putman's license would only be justified if "an element of the offense [included ] ... violence," (emphasis added and bracketed text added by dissent), we observe that Ind. Code 27-10-1-6 merely provides that a misdemeanor is a disqualifying offense "if an element of the offense involves ... violence." (Emphasis added).
In Halligan v. State , which is cited by the dissent, this Court observed that the offense of assault and battery, as codified at the time, was defined as "[w]hoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery," whereas the elements of the separate crime of assault were different and that offense was defined as "[w]hoever ... attempts to commit a violent injury upon the person of another, is guilty of an assault ...."
To the extent Putman cites Flores v. Ashcroft ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.