ILNews

COA finds dismissal of judicial review petition not warranted

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT