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Justices asked to accept judicial review case

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A national business group and several state associations want the Indiana Supreme Court to take a case that could impact judicial review of state administrative agency rules, particularly those that may be outside an agency's authority to address.

Seeking to overturn rulings from two lower courts, the four organizations representing thousands of Hoosier businesses and the City of Indianapolis have teamed up on an appeal they say extends beyond this particular case and threatens businesses that are subject to Indiana administrative law and state agency regulation.

Justices are being asked to consider LHT Capital LLC v. Indiana Horse Racing Commission, et al., No. 49A02-0712-CV-1149, which the Court of Appeals decided in an Aug. 7 opinion and addressed again in an October rehearing denial. Those published decisions affirmed Marion Superior Judge Gerald Zore's dismissal of the complaint in favor of the state commission on grounds that LHT didn't exhaust all its administrative remedies when it challenged the commission's rules and regulations.

The case stems from an emergency rule that led to a $9 million fee as part of a deal to sell off a minority interest in Indiana Downs horse racing track in Shelbyville. After lawmakers allowed slot machines at the horse racing casinos, the Indiana Horse Racing Commission, which reviews slot machine licensing, adopted an emergency rule allowing it to impose ownership transfer fees. The commission imposed a $9 million fee on LHT, and the company paid the fee in order to move ahead with the minority ownership transfer before a Nov. 1, 2007, deadline to pay a license fee to add slot machines. But the company objected to the validity of the emergency rule and subsequent fee, which it claimed wasn't authorized by legislators.

Judge Zore and the appellate court both decided that LHT hadn't exhausted its required administrative remedies. But LHT argues that it shouldn't have to exhaust those remedies because the agency can't address constitutional issues, and raising it before those officials would be futile since the regulation is void on its face and beyond the agency's granted powers to address.

The appellate court disagreed, noting that LHT should have raised that issue before the Indiana Horse Racing Commission instead of negotiating a settlement to move the process forward, and that the company could have filed a declaratory judgment action that may have resulted in a different outcome.

A handful of associations and entities - the City of Indianapolis, Indiana Bankers Association, Indiana Health Care Association, Indiana Beverage Alliance, and National Federation of Independent Business Small Business Legal Center - have joined together as amici curiae parties asking the justices to take the case and overturn the trial court's dismissal judgment.

The group isn't suggesting that parties can skip the administrative process and proceed directly to court whenever there may be constitutional issues on the existence or scope of agency authority, the amici brief says. But it wants to ensure judicial review exists for businesses going before those agencies.

In its petition to transfer, LHT's attorney, James Bopp of Terre Haute, argues that the Court of Appeals decision goes against precedent from the state's Supreme Court and that the decision could hurt Hoosier businesses if allowed to stand.

"To uphold the dismissal of this case is to tell Indiana businesses that they better play the State's game of paying whatever 'bribes' are required by unlawful agency rules, or lose their licenses to do business here," the petition states. "Hearings on petitions for licenses or changes in ownership of licenses won't be set until businesses acquiesce to agency demands, and no judicial review is permitted under the rule adopted by the Court of Appeals."

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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