COA finds dismissal of judicial review petition not warranted

Noting that the Indiana Supreme Court has been divided on this issue – but will take it up soon – the Indiana Court of Appeals has held that it could review the dismissal of a petition for judicial review even though the company filing the petition did not file a complete, certified agency record.

Teaching Our Posterity Success Inc. sought judicial review of the Indiana Department of Education’s and State Board of Education’s decision to remove TOPS from the list of approved supplemental educational services providers.

The DOE sent TOPS a letter stating it reviewed TOPS’ request for appeal and is keeping TOPS off the provider list. It does not contain any factual findings regarding the decision nor does it reference any other document that would contain such findings.

 When it filed its petition for judicial review, TOPS included a copy of the letter, which it argued failed to make specific findings and was arbitrary, capricious and an abuse of discretion. The company did not submit additional materials.

The trial court granted the DOE’s motion to dismiss.

In Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education, 49A05-1308-PL-386, Judge Michael Barnes pointed out that the Supreme Court is split on the effect of the failure to timely file the agency record on a petition for judicial review. It has granted transfer to two cases that again present this issue. But in the meantime, Barnes wrote that the panel believes that although best practices is to timely file the entire agency record, where the record is not necessary for review, the dismissal of the petition is not warranted.

Before the trial court, the DOE admitted that the letter was a final agency decision, but on appeal argued the letter may not even be genuine and that another document could exist elsewhere that provided the necessary findings and conclusions.

“The DOE’s argument seems to suggest either of the following: that counsel for TOPS, an officer of the court, knowingly filed a verified petition for judicial review, under penalties for perjury, falsely identifying the letter as DOE’s final agency action, or the DOE has somewhere hidden away in its records a document that lists its findings and conclusions regarding TOPS but never provided it to TOPS,” Barnes wrote. “Neither option is palatable and we decline to entertain them, particularly given that the DOE did not make any such arguments regarding the letter before the trial court.”

The trial court erred in dismissing the petition, so the appeals court remanded this case to the DOE for entry of the statutorily mandated findings and conclusions to accompany its final order.