[CITE: Collins & Pressner v. Town of Ogden Dunes (Attorney Representation), 13 CADDNAR 226 (2014)]
[VOLUME 13, PAGE 226]
Caption: Collins & Pressner v. Town of Ogden Dunes (Attorney Representation)
Administrative Law Judge: Lucas
Attorneys: pro se (Claimants); Parkinson (Town); Wells (DNR)
Date: January 27, 2014
FINAL ORDER DENYING REQUEST BY COSTANZA TO SERVE AS THE DULY AUTHORIZED REPRESENTATIVE OF PRESSNER
Charlie Costanza’s request is denied to serve in this proceeding as the duly authorized representative for Gayla Pressner.
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH
On November 11, 2013, Connie G. Collins (“Collins”) and Gayla S. Pressner (“Pressner”) filed by United States Priority Mail 2-Day™ their “Petition for review of the Special Control Deer Permit” (the “Petition”) with respect to a Special Purpose Deer Control Permit (the “Special Permit”) issued by the Department of Natural Resources (the “DNR”) to the Town of Ogden Dunes (the “Town”) on October 28, 2013. The Town and the DNR are collectively the “Respondents”. On November 14, the Natural Resources Commission (the “Commission”) received the Petition. The Petition initiated a proceeding that is subject to IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA. Under AOPA, the Commission is the “ultimate authority” for administrative reviews of special deer control permits issued by the DNR. Howe v. DNR, 13 Caddnar 20, (2012); IC 4-21.5-1-15, IC 14-10-2-3; and 312 IAC 3-1-2.
The Petition included a request for a discretionary stay of effectiveness of the Special Permit pursuant to IC 4-21.5-3-4(e). This subsection provides in part:
(e) If a petition for review of an order described in [IC 4-21.5-3-4(a)] is filed within the period set by [IC 4-21.5-3-7] and a petition for stay of effectiveness of the order is filed by a party…, an administrative law judge shall, as soon as practicable, conduct a preliminary hearing to determine whether the order should be stayed in whole or in part. The burden of proof in the preliminary hearing is on the person seeking the stay. The administrative law judge may stay the order in whole or in part. The order concerning the stay may be issued after an order described in subsection (a) becomes effective. The resulting order concerning the stay…must include a statement of the facts and law on which it is based.
Although not specified in the Petition, a reasonable inference is that Collins and Pressner asserted the Special Permit was issued wrongly by the DNR under IC 4-21.5-3-4(a)(2) which authorizes the grant of a noncommercial hunting license.
A hearing on the requested stay was scheduled for and conducted at Chesterton on November 22. On the previous day, Jon Machuca and Joan Machuca (collectively the “Machucas”) had filed a “Notice of Motion and Motion to Intervene; Declarations of Jon Machuca and Joan Machuca” in which they sought to be joined in support of the Petition. During the course of the November 22 stay hearing, the Machucas’ motion to intervene was granted. Collins, Pressner, and the Machucas are collectively the “Claimants”. The Claimants, the DNR and the Town are collectively the “Parties”.
On November 26 and again on December 5, Charlie Costanza (“Costanza”) filed an email which included a request that he be granted leave to serve in this proceeding as the authorized representative for Pressner. Attached in support of Costanza’s request was an email from Pressner which stated in pertinent parts:
I Gayla Pressner hereby authorize Charlie Costanza to act as my proxy or “duly authorized representative” as allowed by law IC 4-21.5-15(a) [sic., IC 4-21.5-3-15(a)], to participate for Me in these proceedings. Due to my work schedule, I am unable to attend any meetings or participate in these proceedings. [Emphasis provided by Pressner]
On December 6, the administrative law judge issued a “Schedule for Filing Response to Request for Charlie Costanza to Serve as Duly Authorized Representative for Gayla S. Pressner” in which the Parties were provided until December 20 to file any response. On December 12 the Machucas filed an email in which they stated they were “in support of this request”. On December 20, the “Town of Ogden Dunes’ Response and Objection to Motion of Charlie Costanza” was filed. On the same day, Costanza filed an email in which he objected to the Town’s response.
Representation of another person in an AOPA proceeding is addressed generally at IC 4-21.5-3-15:
Sec. 15. (a) Any party may participate in a proceeding in person or, if the party is not an individual or is incompetent to participate, by a duly authorized representative.
(b) Whether or not participating in person, any party may be advised and represented at the party’s own expense by counsel or, unless prohibited by law, by another representative.
The provision cited by Costanza, IC 4-21.5-3-15(a), allows a “duly authorized representative” to participate for another in two circumstances. The represented person must be other than an “individual”, or the represented person must be “incompetent”. To qualify as an authorized representative for Pressner under subsection 15(a), Costanza must demonstrate either: (1) Pressner is not an individual, or (2) Pressner is incompetent.
An “individual” is one form of “person” recognized by AOPA at IC 4-21.5-1-11:
Sec. 11. “Person” means an individual, agency, political subdivision, partnership, corporation, limited liability company, association, or other entity of any character.
An “individual” is defined for all purposes in 312 IAC, including 312 IAC 3-1 that assists the Commission in the implementation of AOPA, at 312 IAC 1-1-20:
Sec. 20. “Individual” is a human person.
Pressner is a human person and thus an individual. Costanza cannot qualify as the duly authorized representative of Pressner on the basis she is not an individual.
To qualify as the duly authorized representative of Pressner, Costanza must demonstrate Pressner is incompetent. “Incompetent” is not defined in AOPA. When the Indiana General Assembly has not defined a word, the word is given its common and ordinary meaning. Reference may be made to English language dictionaries. Applying these principles, the court defined “incompetent” in Youngblood v. Jefferson County DFC, 838 N.E.2d 1164, 1171 (Ind. App. 2005) as being:
“[o]f inadequate ability or fitness; not having the requisite capacity or qualification; incapable.” THE OXFORD ENGLISH DICTIONARY (2nd ed. 1989)…. In addition, “incompetency” is the “[l]ack of ability, knowledge, legal qualification, or fitness to discharge the required duty or professional obligation.” BLACK’S LAW DICTIONARY 765 (6th ed. 1990).
Pressner may have other responsibilities that make participation in the proceeding impracticable. She may be too busy to participate. She may fear harm that could result if she is absent from her place of employment. She may have other priorities that are higher than participation in the proceeding. But these circumstances do not constitute incompetence. The Town’s December 20 response and objection to Costanza’s motion is persuasive. Costanza has not shown facts that qualify him to serve as Pressner’s authorized representative under IC 4-21.5-3-15(a). This alone requires that Costanza’s request be denied.
[VOLUME 13, PAGE 227]
But the Town makes another point worthy of consideration. “Costanza is not a licensed attorney in any state, let alone the State of Indiana, and the request, therefore, borders upon the unauthorized practice of law.”
The Indiana Supreme Court “has exclusive jurisdiction over matters involving the unauthorized practice of law. See Ind. Const. art 7, § 4; see also Ind. Code § 33-24-1-2.” State ex rel. ISBA v. UPSC, 926 N.E.2d 8 (Ind. 2010). Every person is entitled to act as his or her own attorney, both in and out of court, and to assume the consequences of acts performed. State v. Indiana Real Estate Association, Inc., 244 Ind. 214, 226 n. 2, 191 N.E.2d 711, 717 n. 2. (Ind. 1963). But this right is possessed only by those who are parties to the transaction. Id. at 226, 191 N.E.2d 717. Only a qualified, licensed attorney may appear for another person. Matter of Estate of Rondinelli, 692 N.E.2d 915, 918 (Ind. App. 1998) (“only persons duly admitted to practice law in this state may appear on behalf of other persons”) (citing Butler v. State, 668 N.E.2d 266, 268 (Ind. App. 1996). Similarly, a litigant may bring his own claim in federal court without counsel, but not the claims of others, because the competence of a layman is clearly too limited to allow him to risk the rights of others. Johnson-Bey v. Indiana Department of Corrections, 668 F. Supp.2d 1122 (N.D.Ind. 2009).
“Only the Indiana Supreme Court can determine what constitutes the unauthorized practice of law…. But…the Commission must be sensitive to the consequences of representation by one person of another in an AOPA proceeding.”
Reported decisions from other states support the possibility that a person who represents another before a state agency is engaged in the practice of law. Reference is made to recent decisions from Pennsylvania and Ohio. When an individual engages in cross-examination, argument, or other acts of advocacy before a state agency, the individual is engaged in the practice of law. Plunti v. Corn, 900 A.2d 1017 (Pen. 2006). Cross-examination of witnesses, argument, and other acts of advocacy (such as summary motions, discovery, and separation of witnesses) are typical of AOPA proceedings. A layperson generally may not represent another person or take any legal action on behalf of another person before an administrative agency. Cleveland Bar Assn. v. Comp-Management, Inc., 857 N.E.2d 95, 111 Ohio St.3rd 444 (Ohio 2006).
Edwards v. Pressler & Tomei (Attorney Representation), 12 Caddnar 325, 327 (2011). [Paragraph enumerations omitted.] The activities referenced in the cited Pennsylvania and Ohio decisions are also common to an AOPA proceeding.
The need for Commission sensitivity, to the potential for unauthorized practice of law in an AOPA proceeding, was underscored recently by an Indiana Supreme Court amendment to Rule 3 (Admission of Attorneys) of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys. The amendment became effective in 2012 and requires an out-of-state attorney, seeking to practice before an administrative agency, must first petition and be granted permission by the Supreme Court. The result would be anomalous if an attorney licensed to practice (for example) in Illinois were required to petition and obtain permission by the Indiana Supreme Court before practicing before the Commission, but a non-attorney required no permission.
Costanza seeks authority to serve as the duly authorized representative for Pressner under IC 4-21.5-3-15(a). The facts do not support his request, and the request must properly be denied. Even if he had sought authority more broadly by citing to IC 4-21.5-3-15(b) as well as IC 4-21.5-3-15(a), what he is seeking may constitute the unauthorized practice of law. In either event, Costanza has not demonstrated an appropriate basis for granting the request.
 As provided in IC 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent. In 1988, the Commission adopted Caddnar as its index of agency decisions.
 In an email filed on December 26, Pressner repeated that she gave “Charlie Costanza permission to represent [her] in the hearings. I sent an email directly to Charlie Costanza. We have spoken verbally in addition to the email, as I cannot take a day off from work in order to attend the hearing.”