Persuasive advocacy remains the same no matter what forum you are in, but there are different rules and traps for the unwary if you don’t understand your environment. Have you prepared lately for an appearance in front of the Alcohol and Beverage Commission seeking an alcohol permit, Natural Resource Commission because you built an unapproved bridge over a creek, or contesting an IOSHA fine at the Department of Labor? Practicing law in our Indiana state agencies, even for experienced litigators, can be a new experience.
Our faculty participant, Lori Torres, Ice Miller LLP, Indianapolis, has generously agreed to provide her expert direction into where to watch for the land mines. Here’s her jump start into preparing to appear at the Indiana state agencies:
Administrative Orders and Procedures Act
The Administrative Orders and Procedures Act, commonly known as AOP A, was passed in 1986, and has seen few changes since then. AOPA can be found at Ind. Code 4-21.5-1 et seq. It has 7 chapters, each one devoted to a different aspect of administrative law. (Editor’s Note: Ms. Torres includes the full Act in her published CLE materials for the seminar entitled “Revealing the Mysteries of Administrative Law: A Practitioner’s Guide to Indiana State Agencies.” The manual is available from ICLEF.) Part of what AOPA was intended to accomplish was to provide a more streamlined way for state agencies to regulate in their substantive areas, as well as unclutter the court system with administrative issues. [Final Report of the Administrative Adjudication Commission].
The first order of business before you work at the state agency level is to ascertain whether AOPA applies. Chapter 2 has a fairly long list of agencies and actions in which AOP A does not apply, either in specific agencies or specific actions. See Ind. Code 4-21.5-2-4 and 5. For example, AOPA does not apply to the Indiana Utility Regulatory Commission, the Department of Workforce Development or the Unemployment Insurance Review Board there. And while it applies to the Indiana Civil Rights Commission as a whole, neither a determination of probable cause or no probable cause, or fact finding conferences of the Civil Rights Commission are subject to AOPA. Ind. Code 4-21.5-2-5(2) and (3). These exceptions have been carved out over many legislative sessions, and run the gamut.
First things first – does AOPA apply, and if not, what does? For example, a driver isn’t entitled to notice and a hearing before the BMV suspends a driver’s license, permit or vehicle title of that person as a result of a
dishonored check. But a driver would have the benefit of AOPA in the case where he or she believes that the BMV erred in the type of suspension. Likewise, since the Indiana Utility Regulatory Commission is specifically exempted from coverage by AOPA, (Ind. Code 4-21.5-2-4(a)(8)), a practitioner has to look to the statutes governing the commission or its administrative code (see 170 lAC 1.1 for Practice and Procedure Before the Commission).
Notice is a primary concern under AOPA. Nearly all of section 3 of AOPA deals with who is entitled to notice, how it must be made, what time frames apply for notice and response to matters. Ind. Code 4-21.5-3-1 to 6. Any sanction or termination of a legal right, duty, privilege, immunity or other legal interest may only be done after a proceeding described by AOPA, unless it is an emergency or temporary order. Ind. Code 4-21.5-3-8.
Know the Culture
You have to do your own “situational analysis” before starting a matter before an agency with whom you are unfamiliar. Agencies differ, and woe to the practitioner that hasn’t studied up or done some kind of prep work in advance. Some are incredibly formal, and mimic a court trial. IOSHA hearings have a judge, court reporter and often multiple lawyers on each side. Utility Regulatory Commission hearings are very formal with many interested stakeholders (including the media) in attendance. Hearings in front of a board of the Professional Licensing Agency can be attended by members of the public and often are attended by aggrieved parties. Others are very informal, like those at the BMV, where only the complainant has a stake in the outcome. You should know if members of the media will be there. Nearly every hearing or meeting is subject to the Open Door Law (Ind. Code IC 5-14-1.5), which provides that they are open to the public at large, and the media in particular.
The best way to understand the environment in which you will be working is to attend one or more of the agency’s hearings in advance of your own. If you have a State Department of Health hearing coming up, attend the meeting the month before (remember that Open Door Law?). Call the agency’s general counsel and ask questions. Even though they may be involved in the disputed matter, my personal observation is that most agency general counsel are focused on fairness and just outcomes, so it is worth asking some questions. Find out when the agenda will be published, and make sure you get a copy in advance. I’ve never done an administrative case without first trying to attend a similar meeting or hearing (without billing the client) to understand the flow, hear the fact finder or adjudicator explain rulings or process. Know whether parties are usually represented by attorneys or they appear generally pro se.
All of this will aid you in your situational analysis, and make you look like a pro in front of your client (and hopefully avoid any embarrassment so you don’t miss an important point of the protocol).
Many thanks to Lori Torres for her valuable insights into Indiana’s state agencies. Keep your ears open as we continue with her specific examples of “Things To Know Before An Administrative Hearing.” If you are interested in the CLE covering the ins and outs of practicing administrative law in Indiana, take a look at ICLEF’s On Demand or Video Replay of “Revealing the Mysteries of Administrative Law: A Practitioner’s Guide to Indiana State Agencies.”
About our Law Tips faculty participants:
Lori Torres, Ice Miller LLP, Indianapolis, is of counsel in the law firm’s Public Affairs Group. She concentrates her practice in the areas of public affairs, public policy planning, economic development, real estate, and labor and employment focusing on state wage and hour issues. Torres is a veteran of Indiana state government, having served in a cabinet post position in the Indiana Department of Labor under Gov. Mitch Daniels for more than six years. Prior to her appointment to the DOL, Torres spent 20 years in private practice in Johnson, Marion and surrounding counties in Indiana.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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