Attorney for Appellant Attorneys for Appellees
E. Scott Treadway Steve Carter
Tabbert, Hahn, Earnest & Weddle LLP Attorney General of Indiana
Indianapolis, Indiana Indianapolis, Indiana
David L. Steiner
Deputy Attorney General
George T. Patton, Jr.
Bose McKinney & Evans
Appeal from the Marion Superior Court, No. 49F12-0103-CP-001074
The Honorable Michael E. Keele, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-0111-CV-505
June 22, 2004
The Breitweisers filed a petition with the Indiana Department of Environmental management (IDEM) to halt an animal feeding operation. The petition was initially handled by an administrative law judge, whom the Breitweisers moved to disqualify. She recused, and the chief ALJ assumed responsibility for the case. He refused the Breitweisers request that he also disqualify and entered a default judgment against them.
The question before us is: does a petitioners motion to disqualify an
ALJ at IDEM relieve that party of the statutory necessity under the Administrative
Orders and Procedures Act to respond to a possible default? We say
Lasley subsequently disqualified herself from continued participation in the interest of efficient case
administration, and Chief ELJ Penrod presided over the case. On May 19,
1999, the Breitweisers moved to disqualify Judge Penrod and to vacate Lasleys prior
rulings. On May 26
th, Judge Penrod issued a Notice of Proposed Order
of Default, noting that the Breitweisers did not file discovery responses or responses
to a pending motion for summary judgment by the designated deadline. The
Breitweisers did not file a direct written response to this notice as permitted
by Indiana Code Annotated § 4-21.5-3-24.
Instead, on June 2, 1999, the day before an IDEM hearing on the
proposed default order, the Breitweisers filed a Verified Complaint for Writ of Mandate,
for Temporary Restraining Order and for Preliminary and Permanent Injunction in Marion Superior
Court. On June 15, 1999, the court entered the following dismissal order:
Defendants . . .agree to rule upon all pending motions in the underlying administrative matter. Defendants further agree to stipulate that Chief Environmental Law Judge Penrod will rule on Plaintiffs Motion to Disqualify Chief Administrative Law Judge Penrod and Motion for change of Administrative Law Judge filed May 19, 1999, prior to ruling upon other pending motions. Defendants further agree that Chief Environmental Law Judge Penrod will rule upon Plaintiffs Motion to Vacate All Prior Rulings of Administrative Law Judge Lasley filed May 19, 1999.
(Appellants App. at 306-07.) Two days after this ruling, Judge Penrod entered three orders; he denied the Breitweisers motion for his disqualification, denied the motion to vacate Lasleys rulings, and found that the Breitweisers were in default for failure to respond to discovery requests or the proposed order of default.
The Breitweisers subsequently filed a petition for judicial review of Judge Penrods ruling,
in Marion Superior Court. Judge Gerald Zore denied a motion to dismiss
this petition and a parallel motion for partial summary judgment. The case
was later transferred to Judge Michael Keele, who presided over a division of
the Marion Superior Court specializing in environmental matters. Judge Keele held that
the court lacked jurisdiction over the matter because the Breitweisers were in default;
he entered an order dismissing the Breitweisers complaint.
The Breitweisers appealed, and the Court of Appeals held that Judge Penrod improperly
denied the disqualification motion and that the Breitweisers were entitled to judicial review
on the merits of their claim. Breitweiser v. Indiana Office of Environmental
Adjudication, 775 N.E.2d 1175 (Ind. Ct. App. 2002). The OEA and Judge
Penrod petitioned for transfer, which we granted. Ind. Appellate Rule 58.
An appellate court may reverse an agency decision only where it is purely
arbitrary or an error of law has been made. Indiana State Bd.
of Public Welfare v. Tioga Pines Living Center, Inc., 622 N.E.2d 935, 939
(Ind. 1993), cert. denied, 510 U.S. 1195 (1994); see also Ind. Code Ann.
§ 4-21.5-5-14(d) (2002).
The Breitweisers argue that default was improper because they were not compelled to
file a response to the proposed notice of default.
See footnote They rely on
Indiana Code Ann. § 4-21.5-3-24(b), which states that within seven days, a party
may file a written motion against the proposed notice of default. While
the Breitweisers were not obligated to respond to the proposed notice of default,
they are not saved from the consequences associated with their decision not to
respond. It is apparent that the legislature had foreseen that a person
may not wish to respond, for it has declared that if a party
has failed to file a written motion under subsection (b), the administrative law
shall issue the default or dismissal order. Ind. Code Ann. §
We have customarily regarded shall as imposing a mandatory obligation. See Indiana Civil Rights Commn v. Indianapolis Newspapers, 716 N.E.2d 943, 947 (Ind. 1999) It was well within the Breitweisers right to decide not to reply to the proposed notice of default, as they suggest. Judge Penrod, on the other hand, was compelled by statute to issue a default ruling against the Breitweisers when they did not submit a response to the proposed notice of default within seven days.
The legislature has also said that a person has waived (his) right to
judicial review when he fails to follow the default guidelines provided under Indiana
Code Annotated § 4-21.5. Ind. Code Ann. § 4-21.5-5-4(b) (Michie 2002).
We have earlier observed the effect of this provision:
Indiana Code § 4-21.5-3-29 provides that an objection to an order of an
administrative law judge must be timely to preserve that objection for judicial review.
Indiana Code § 4-21.5-5-4 similarly provides that a person who fails
timely to object to an order waives the right to judicial review.
We have recently held that failure to file a timely assignment of errors
deprives any subsequent court of jurisdiction and any appeal would have to be
dismissed. Claywell v. Review Board, 643 N.E.2d 330 (Ind. 1994). Therefore,
the law is clear: failure to file timely objections leads to waiver
of that issue on appeal.
Indiana Civil Rights Commn v. Delaware County Circuit Court, 668 N.E.2d 1219 (Ind.
So what could the Breitweisers have done? The Breitweisers had the option
to respond to the notice of default while they continued to pursue disqualification
of Judge Penrod. Had they succeeded on judicial review, we expect the
earlier administrative rulings would have been set aside. Because they elected not
to respond as AOPA permits, AOPA specifies the consequences.
Sullivan, and Boehm, JJ., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs.
The majority relies upon the Breitweisers' failure to timely respond to the proposed
notice of default. The Breitweisers point out, however, that they did respond
within the time allowed. They filed a verified complaint for writ of
mandate, for temporary restraining order, and for preliminary and permanent injunction against the
OEA and Judge Penrod, which clearly asserted their claim that Judge Penrod should
be disqualified and "could not properly make any decisions in the case let
alone an entry of default." Br. of Appellants at 28.
Particularly significant is the fact that it was only after the Breitweisers filed
motions to disqualify Judge Penrod and to vacate his orders, and for an
expedited ruling on such motions, that the judge immediately entered his notice of
proposed default against them. Judge Penrod's May 26, 1999, notice of proposed
order of default recited as its basis the Breitweisers' failure to file discovery
responses due May 21, seven days earlier, and their failure to respond to
a motion to quash or modify a subpoena duces tecum, and to a
motion to dismiss or for summary judgment, both of which responses were due
on May 21, five days before the judge's notice of proposed order of
See footnote The judge's issuance of the order suggests the possibility that it
was motivated by vindictive retaliation.
Recognizing the importance of a neutral, unbiased adjudicatory decisionmaker as a core requirement
of fair adjudicatory decision-making, the Court of Appeals concluded that the Breitweisers were
entitled to judicial review on the merits of their claim that Judge Penrod
improperly denied the disqualification motion.
Breitweiser v. Indiana Office of Environmental Adjudication,
775 N.E.2d 1175, 1182 (Ind. Ct. App. 2002). I agree.
Rucker, J., concurs.