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COA: Dealership not denied due process

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The Indiana Court of Appeals directly addressed for the first time today the due process implications of an administrative law judge conducting a hearing without the participation of a party who received notice but couldn't be contacted by telephone at the time of the hearing. The appellate court found a car dealership's due process hadn't been violated when it failed to participate in a telephone hearing with the administrative law judge and a former employee.

In Art Hill, Inc. v. Review Board of the Indiana Department of Workforce Development, and Terrence Horan, No. 93A02-0801-EX-34, Art Hill appealed the decision by the Unemployment Insurance Review Board to affirm the findings and conclusions of an administrative law judge who granted Terrence Horan's application for unemployment benefits.

Art Hill argued the review board erred in affirming the decision because it didn't participate in the hearing.

The Department of Workforce Development denied Horan's claim for unemployment benefits. After Horan filed a notice of appeal, the administrative law judge in Lafayette sent notice to Horan and Art Hill, who were in Gary, that the hearing would be held by telephone and both parties had to submit a number where they could be reached for the hearing. Art Hill called the administrative law judge's office two days before the hearing and gave a phone number with the extension 5353.

On the day of the hearing, the judge reached Horan but no one answered at the Art Hill number provided. The administrative law judge found the dealership failed to participate in the hearing and granted Horan's application. The review board affirmed the decision.

On appeal, Art Hill explained the 5353 extension didn't have a speakerphone so the dealership moved to a different number. It tried calling the administrative law judge's phone number but only got voicemail.

But the company failed to give reasonable notice that it could be reached at a different phone number and didn't leave someone at the original number who could transfer the call to the new number, wrote Judge Margret Robb. In addition, the company waited until 15 minutes after the hearing began to attempt to reach the judge.

Art Hill wasn't denied due process by not participating in the hearing, the Court of Appeals concluded. The appellate court turned to due process implications of the right to be present at a hearing in other contexts because it hadn't previously tackled the issue regarding a telephone hearing, and it saw no justification for treating the right to be present at an unemployment hearing any differently than the right to be present in any other context.

"Therefore, we hold that a party to an unemployment hearing may voluntarily waive the opportunity for a fair hearing where the party received actual notice of the hearing and failed to appear at or participate in the hearing," wrote Judge Robb.

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

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