The Indiana Supreme Court heard oral arguments at the University of Indianapolis in front of central Indiana high school students on Tuesday April 11. Photo from Indiana Supreme Court.

By Niki Kelly
Indiana Capital Chronicle

A Ball State University student who wants a refund for his pandemic-interrupted classes in early 2020 took his case to the Indiana Supreme Court Tuesday, arguing his class-action suit should be allowed to continue although lawmakers blocked it.

The matter boils down to a disagreement on separation of powers: does the judicial branch or legislative branch hold authority to curb class-action suits?

College student Keller Mellowitz was enrolled at Ball State for the Spring 2020 semester when the university “sent students home, cancelled in-person classes and closed campus facilities as a result of COVID-19,” according to court filings.

He filed a class action complaint against the university and its board of trustees in Marion County Superior Court in May 2020, accusing them of “breach of contract and unjust enrichment” over decisions to cancel in-person classes and close campus facilities due to the pandemic.

Specifically, Mellowitz cites Ball State’s retention of tuition and “numerous” fees, including those for student services, university technology, student recreation, student health, and student transportation.

The lawsuit estimated as many as 20,000 Ball State students were due some sort of reimbursement.

The General Assembly, however, enacted a retroactive law in 2021 that prohibited class-action complaints against state universities related to COVID-19. Instead, Mellowitz — and any other students impacted — would have to file individual suits.

A trial court tossed the case out under the new law, but the Indiana Court of Appeals disagreed.

The Case Specifics

At issue is Trial Rule 23, which creates the right to file a class action.

Essentially, if the legislative change is found to be procedural, then the trial rule controls. But if the law is found to be substantive, then the law controls.

Attorney Colin Flora responds to questions from the Indiana Supreme Court on Tuesday, April 11. Photo from Indiana Supreme Court.

Colin E. Flora, the attorney for Mellowitz, argued that the judicial branch grants the right to file a class action and only the judicial branch can take it away.

“The statute at issue here was not trying to protect the health and well-being of the students or telling the students that they have to go home,” he said. “The statute now is trying to say, you students who otherwise under contract law would be entitled to these refunds, we’re not going to give you a viable mechanism to recover your money. Because in this circumstance, the government, the state of Indiana, has decided both it and institutions primarily run by it should be shielded from this liability.”

A key question for the five supreme court justices to decide is if the law the legislature passed was predominantly policy-oriented. Chief Justice Loretta Rush questioned how to determine that.

“You’re asking us to sort of look behind the curtain on the legislature on why they did it as opposed to the direct language because you would agree that there are procedural elements to the statute. It restricts the method in which somebody can bring a lawsuit,” she said.

Ball State Response

But attorney Brian Paul, representing Ball State, argued the legislature made a purposeful policy statement against class action suits because they are prohibitively expensive and unfairly pressure defendants to settle.

“The situation was unprecedented. Yet, the schools provided the education students had paid for — and then some — and still the schools have been sued,” he said. “Worse, they faced the prospect of having to defend against plaintiffs seeking to represent tens of thousands of other students who not only received credit for the courses they completed, but who have never taken a single step to join this lawsuit, let alone file their own.”

Justice Mark Massa noted that Mellowitz still has an option to sue individually.

Flora said that with only a few thousand dollars at stake, it is not feasible.

“The purpose of a class action is … to provide a remedy where often the claims are too small to even viably gain counsel,” he said. “As shown in this case, the defense of Ball State is vigorous.”