[NOTE: DUBOIS CIRCUIT COURT (19C01-9601-MI-0002) AFFIRMED NRC FINAL ORDER (DECISION FOLLOWING ADMINISTRATIVE FINDINGS). COURT OF APPEALS ORDER REMANDING TO TRIAL COURT, WITH INSTRUCTIONS TO DISMISS PHOENIX'S PETITION FOR LACK OF JURISDICTION, FOLLOWS THE TRIAL COURT FINDINGS. TRIAL COURT'S ORDER OF DISMISSAL FOLLOWS APPELLATE FINDINGS. ] {THE UNDERLYING PERMIT HAS EXPIRED.}
The Administrative Law Judge in the case at bar concludes that he is bound by that decision of the commission [determining a party to a proceeding, before the Commission under the AOPA, is not required to be represented by an attorney] until it is reversed by the commission or a court of competent jurisdiction. Accordingly, the motion to disqualify is denied
FINDINGS OF FACT
On July 26, 1995, the Hoosier Environmental Council and Protect Our Woods jointly filed a petition for review of the decision by the department of the decision to issue surface coal mine permit S-139-5 allowing the disposition of coal combustion waste on a Phoenix Natural Resources, Inc. active mine site. The petition was signed by Jeffrey Stant, Executive Director of the Hoosier Environmental Council and Robert Klawitter, Executive Director of Protect Our Woods, both non-attorneys. The two claimants appeared by the same non-attorneys at the prehearing conference held August 18, 1995. On August 7, 1995, Phoenix filed a motion to disqualify the non-attorneys from representing their organizations in the administrative proceeding. Phoenix contends that by appearing in an administrative proceeding which is brought pursuant to IC 4-21.5, Stant and Klawitter are practicing law. While agreeing that the court system has created an exception in State ex rel. Pearson v. Gould (1982), Ind. 437 N.E.2d 41, for informal proceedings not administered by lawyers, Phoenix contends with some justification that a surface mine administrative review is complicated legal proceeding that does not fit under the Gould exception. The recent case of Indiana Department of Natural Resources v. United Refuse, Company, Inc., (1993) 615 N.E.2d 100 also provides Phoenix some ammunition since the Indiana Supreme Court ruled that in an administrative hearing before an administrative law judge, the administrative law judge performs a duty similar to that of a trial judge sitting without a jury. There is no question that if this were a proceeding commenced in the court system, the claimants would be required to appear by counsel. See IC 34-1-60-1.
The Natural Resources Commission, as the ultimate authority for the department of natural resources in matters brought under IC 4-21.5, has issued a clear and unambiguous recent decision on this issue. At the April 1992 meeting, the Natural Resources Commission considered an order by Administrative Law Judge Lucas in which Judge Lucas had granted a motion similar to Phoenix's and ruled that Save the Dunes, Inc., had to be represented by counsel. The Commission reversed the ruling by the administrative law judge and found that Save the Dunes could proceed with lay representation. The minutes of that meeting are attached to this order. [The Natural Resources Commission Meeting, April 14, 1992 meeting minutes are not attached to this CADDNAR entry.]
DUBOIS CIRCUIT COURT
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
This Court, having examined the parties' briefs addressing Petitioner's Verified Petition for Judicial Review requesting the Court to overturn the decision of the Natural Resources Commission ("NRC") and enter an order disqualifying non-attorneys from representing their corporations in administrative evidentiary proceedings, now enters the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner Phoenix Natural Resources ("Phoenix"), an Indiana corporation, conducts surface coal mining operations in Daviess County, Indiana, under a permit issued by the Indiana Department of Natural Resources ("DNR") pursuant to the Indiana Surface Mining Control and Reclamation Act of 1977 ("ISMCRA"), Indiana Code 14-34 (formerly Indiana Code 13-4.1) [Footnote 1].
2. Respondents DNR and NRC are agencies within the meaning of the Administrative Orders and Procedures act ("AOPA"), Ind. Code Section 4-21.5, which governs these proceedings.
3. The NRC, among other things, is the "ultimate authority" for DNR under ISMCRA and AOPA and reviews non-final determinations of Administrative Law Judges ("ALJ") who function as fact-finders on its behalf.
4. DNR is an administrative agency of the State of Indiana with responsibility for, inter alia, the administration and enforcement of a program for the regulation of the environmental aspects and effects of surface coal mining and reclamation pursuant to ISMCRA and its implementing rules set forth at 310 IAC 12.
5. All surface coal mining operations must be permitted by the state. Ind. Cod 14-34.
6. DNR issues the ISMCRA mining permits and administers, and enforces ISMCRA and its implementing regulations including permit conditions via enforcement mechanisms such as the issuance of NOVs for noncompliance. Ind. Cod Section 14-34-5-5; 310 IAC 12-3-4; 310 IAC 12-6-6.
7. The subject surface mine, Phoenix's American Pit, permit #S-104, is a surface coal mining operation or activity within the meaning of Ind. Code 14-34 and as such is under the jurisdiction of DNR pursuant to ISMCRA.
8. On June 22, 1995, the DNR notified Phoenix of its approval of Phoenix's application for a permit to conduct coal combustion waste disposal operations at its surface mining permit #S-104 American Pit, Daviess County, Indiana.
9. On or about July 28, 1995, Hoosier Environmental Council ("HEC") and Protect Our Woods ("POW") jointly filed a petition for administrative review, under Ind. Code 4-21.5, AOPA, challenging the DNR decision to allow the disposition of coal combustion waste on a Phoenix active coal mine site. The petition was signed by non-attorneys Jeffrey Stant, Executive Director of HEC, and Robert Klawitter, Executive Director of POW.
10. Phoenix moved to intervene on August 7, 1995, and filed a Motion to Disqualify and Dismiss, alleging that Stant and Klawitter, because they are not attorneys, should be disqualified from representing their respective non-profit corporations.
11. On September 25, 1995, the ALJ, following DNR precedent set by the NRC in 1992 (SAVE THE DUNES, INC. v. DNR et al., DNR Administrative Cause No. 91-266W), denied Phoenix's motion in a non-final order which was before the NRC on November 30, 1995.
12. On December 5, 1995, the NRC affirmed, in writing, without modification the findings and conclusions of the ALJ.
13. phoenix filed its Petition for Judicial Review of the NRC final order asking this Court to (a) overturn the NRC determination and enter an order disqualifying Stand and Klawitter from representing HEC and POW, and (b) dismiss this matter.
CONCLUSIONS OF LAW
14. The AOPA applies to all agencies except those specifically exempted. Ind. Code Section 4-21.5-2-3. The DNR/NRC and the actions which were the subject of administrative review below and which are the subject of the instant litigation are not exempted. Ind. Code Section 4-21.5-2-4 and -5.
15. The AOPA is the exclusive means for judicial review of an agency action. Ind. Code Section 4-21.5-5-1.
16. Ind. Code Section 4-21.5-3-15, which, therefore, clearly applies to the administrative action below, states:
(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.
17. AOPA defines "party" as either "a person to whom the agency action is specifically directed" or as "a person expressly designated in the record of the proceeding as a party to the proceeding." The definition of the word "person," at Ind. Code Section 4-21.5-1-11, includes a "corporation". Thus, both HEC and POW were "parties" within the meaning of Ind. Code 4-21.5-3-15 who might participate, be advised, and/or be represented by counsel by another duly authorized representative in the administrative proceeding "unless prohibited by law."
18. The "unless prohibited by law" language refers to statutory law, not the case law mistakenly relied upon by Phoenix (prohibiting the practice of law by non-attorneys in civil cases.) Ind. Code Section 4-21.5-2-3. AOPA is the specific statute which governs administrative review and subsequent judicial review of administrative determinations; and it allows for non-attorney representation.
19. No regulation prohibits non-attorney representation in front of either the DNR, the NRC, or its ALJs.
20. The right of HEC and POW to be represented by a person other than a lawyer is given by statute, the specific statute which governs administrative proceedings in general and the subject administrative in particular, i.e. Ind. Code 4-21-5. HEC and POW have the statutory right to be represented by a duly authorized representative other than a lawyer.
21. The NRC correctly and lawfully allowed non-lawyer representation of corporations.
22. Any Findings of Fact which should be designated Conclusions of Law and any Conclusions of Law which should be designated Findings of Fact are so designated.
JUDGMENT
23. The Final Order of the Natural Resources Commission denying Phoenix's Motion to Disqualify is affirmed.
COURT OF APPEALS (Memorandum Decision-Not for Publication)
STATEMENT OF THE CASE
Phoenix Natural Resources ("Phoenix") appeals the determination by the Natural Resources Commission ("Commission") that a person who is not an attorney may represent a corporation in an evidentiary proceeding before that agency. We remand for an order of dismissal.
FACTS
Phoenix held a surface mine permit from the Department of Natural Resources ("DNR") for a certain mine. Subsequently, DNR granted Phoenix an amendment to that permit that allowed Phoenix to conduct coal combustion waste disposal at the site. Hoosier Environmental Council ("HEC") and Proctect Our Woods ("POW") jointly petitioned DNR for administrative review, and the petition was signed by their respective executive directors, both non-attorneys. Phoenix moved to intervene and filed a motion to disqualify and dismiss which alleged that because the executive directors were not attorneys they should be disqualified from representing the non-profit corporations. [Footnote 1.]
The administrative law judge ("ALJ") issued a non-final order denying the motion to disqualify and dismiss. The ALJ followed precedent from a 1992 agency decision in which the Natural Resources Commission reversed an ALJ non-final order to the contrary, thereby establishing that a corporation may be represented by a person who is not an attorney in an administrative hearing before the agency under the Administrative Orders and Procedures Act. Phoenix filed its objection, and argument was heard by the Natural Resources Commission. The Commission's final order affirmed the ALJ.
Phoenix petitioned for judicial review. The trial court found that actions of the DNR and NRC were governed by the Indiana Administrative Orders and Procedures Act ("AOPA"), found at Ind. Code 4-21.5, and that the AOPA allowed the respective executive directors to represent HEC and POW before the DNR and NRC.
DECISION
Phoenix claims the trial court's conclusion that the AOPA allowed the executive directors to represent their respective entities in an administrative hearing was erroneous as a matter of law because "representation of a corporation by a lay person in an administrative evidentiary hearing constitutes the unauthorized practice of law." Phoenix' Brief at 9.
Although circuit courts are presumed to have subject matter jurisdiction, Indiana courts have only such jurisdiction as is granted by our constitution and statutues. STATE v. SPROLES, 672 N.E.2d 1353, 1356 (Ind. 1996). Circuit courts have original jurisdiction in all civil cases "except where exclusive jurisdiction is conferred by law upon other courts of the same territorial jurisdiction." Id. (quoting Ind.Code section 33-4-4-3(a)). Pursuant to the Constitution of the State of Indiana as well as statute and appellate rule, our supreme court has "exclusive original jurisdiction in matters concerning the unauthorized practice of law" in this state. STATE ex REL. DISCIPLINARY COMM'N v. OWEN, 486 N.E.2d 1012, 1013 (Ind. 1986) (citing Ind. Const. Art. 7, section 4, Ind.Code section 33-2-3-1, and Ind.Appellate Rule 4(A)(3)).
"The determination of what constitutes the unauthorized practice of law in specific circumstances is the exclusive jurisdiction of "our supreme court. MILLER v. VANCE, 463 N.E.2d 250, 253 (Ind. 1984). Therefore, both the trial court and this court are without jurisdiction to consider Phoenix' argument that the NRC and DNR erroneously denied Phoenix' petition to dismiss an adminstrative review pursued by laymen representatives. The absence of subject matter jurisdiction cannot be waived and renders a judgment void. STATE ex REL. HIGHT v. MARION SUPER. CT., 547 N.E.2d 267, 269 (Ind. 1989). Because the trial court did not have jurisdiction to enter judgment on the issue raised by Phoenix, the judgment thereon is void. Accordingly, we remand with instructions that the trial court dismiss Phoenix' petition for lack of jurisdiction. See FOSHEE v. SHONEY'S, INC., 637 N.E.2d 1277, 1281 (Ind. 1994).
FOOTNOTE
1. In its Statement of Facts, Phoenix suggests that its filing of a motion to disqualify and dismiss followed an administrative pre-hearing where "it became apparent that [the executive directors] intended to represent their respective organizations in these proceedings." Phoenix' Brief at 8. However, the record shows the motion alleging the executive directors could not act in a representative capacity before the agency without holding a license to practice law was filed on August 7, 1995, and the pre-hearing conference was not held until August 18, 1995.
RILEY, J., concurs
CHEZEM, J., concurs in result.
DUBOIS CIRCUIT COURT ORDER This Court, having lacked jurisdiction regarding the matters contained in the order entered herein on September 5, 1996, the petition of appellant-petitioner, Phoenix Natural Resources, is accordingly dismissed.
SO ORDERED this 6th day of January, 1998. (Signed Hugo C. Songer, Senior Judge, Dubois Circuit Court.)