DISCLAIMER: This information is meant as general guidance only. The administrative process for your case may vary depending on subject matter and issues raised. You are responsible for complying with all legal requirements whether different from or the same as the information contained in this summary. Administrative Law Judges will make every attempt to inform you about the hearing process, but you are ultimately responsible for presenting your case.
Unless prohibited by law or regulation, OALP favors scheduling conferences and evidentiary hearings telephonically. However, any party, or the administrative law judge, may request an in-person evidentiary hearing. Such requests should be granted absent extraordinary circumstances.
Steps in the Administrative Proceeding Process
Petition for Review
The first step in the OALP administrative proceeding process is to submit a Petition for Review. Depending on the type of review you need, this petition will either be submitted by you or by a state agency. Refer to information you received from the state agency as to who should submit a review petition.
Assignment of an Administrative Law Judge
Once OALP receives a Petition for Review, an administrative law judge will be assigned to your matter and will promptly schedule an initial prehearing conference. All administrative law judges must adhere to the Code of Judicial Conduct. The ALJ will keep all matters of the case confidential and between the parties, per Indiana Code § 4-21.5-3-11, so any communications between a party and the ALJ, including emails and phone calls, will be disclosed to both of the parties.
Burden of Proof
Indiana Code § 4-21.5-3-14(c) provides that at each stage of an administrative review, “the agency or other person requesting that an agency take action or asserting an affirmative defense specified by law has the burden of persuasion and the burden of going forward with the proof of the request or affirmative defense.” This means that, in cases where the Petitioner is requesting that the agency, board, or commission do something (i.e. approve its grant application, grant its variance request, etc.), the Petitioner will be responsible for proving it is entitled to whatever it is asking for. However, that burden rests upon the agency, board, or commission, when it is prosecuting a petitioner for a regulatory violation (i.e. imposing a sanction, revoking a license or certificate, etc.). There are some cases where the burden of proof is specifically designated by administrative rule so check with the ALJ regarding which party has the burden of proof.
At a minimum, the ALJ’s findings in the appeal must be based upon the kind of evidence that is substantial and reliable. Indiana Code § 4-21.5-3-27(d). “[S]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the decision.” St. Charles Tower, Inc. v. Bd. of Zoning Appeals, 873 N.E.2d 598, 601 (Ind. 2007). It is “something more than a scintilla, but something less than a preponderance of the evidence.” State ex rel. Dep’t of Natural Res. v. Lehman, 177 Ind. App. 112, 119, 378 N.E.2d 31, 36 (1978). In certain cases, the burden may be higher.
The ALJ will discuss the burden of proof with the parties prior to the evidentiary hearing or submission of briefs, either during a prehearing conference or in the order setting the briefing schedule/notice of hearing.
Initial Prehearing Conference
The initial prehearing conference will provide the parties and the administrative law judge an opportunity to discuss the issues being contested in the proceeding, a schedule going forward, a hearing date, mediation or resolution of the contested issues through dispute resolution, and any other matters the parties need to discuss.
Parties may also discuss whether either party believes the proceeding should be dismissed for a legal reason. Any party believing a proceeding should be dismissed may file a motion to dismiss for the ALJ to review. The administrative law judge will allow the other party an opportunity to respond to any motion to dismiss prior to making a ruling on the motion.
Although the process will vary depending on the type of action being contested, following a prehearing conference you can expect to participate in the discovery process (this will allow you and the other party to seek information and documents from each other). Additional information on agency actions may be found here.
Discovery is a process where the parties to a matter are permitted to seek information and documents from other parties, or from non-parties. Discovery is most commonly sought through interrogatories (written questions) and requests for production of documents. OALP generally uses the Indiana Trial Rules for Discovery to guide this process.
At the conclusion of discovery, if one party believes based on the facts and law that they are entitled to summary judgment they may file a motion for summary judgment. The other party will have an opportunity to respond to the motion and designate evidence in support of their position. OALP generally uses the standard set by Indiana Trial Rule 56.
If the administrative law judge determines a hearing is necessary to review remaining issues following summary judgment motions, an evidentiary hearing will take place where each party can submit evidence and question witnesses.
An evidentiary hearing is a less formal trial. Each party will have the opportunity to present its side of the matter and introduce evidence before the administrative law judge. Evidence may be in the form of testimony, documents, affidavits, or photographs, for example. The administrative law judge is only permitted to consider the evidence admitted by the administrative law judge into the record during the hearing. While some evidence may be offered into evidence, not all evidence is admitted.
Absent a law to the contrary, Indiana’s Administrative Orders and Procedures Act allows an administrative law judge to consider evidence that otherwise would not be admitted under the Indiana Rules of Evidence. The purpose of this is to comply with the Indiana law and provide all parties the opportunity for a fair and impartial review of an agency action.
This means that if evidenced is offered and objected to by the opposing party, the administrative law judge will exclude proffered evidence that is subject to privilege, irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds per Indiana Code § 4-21.5-3-26(a). Additionally, hearsay evidence (a recount by one individual about what another person said that is offered to prove the truth of the matter asserted) may be admitted but may not be the sole reason for an administrative law judge’s order if properly objected to by the opposing party.
Unless prohibited by law or regulation, OALP favors scheduling hearings telephonically. However, any party, or the administrative law judge, may request an in-person hearing. Such requests should be granted absent extraordinary circumstances.
Post-Evidentiary Hearing Briefs
Following an evidentiary hearing, the administrative law judge may allow the parties an opportunity to submit post-hearing briefs or submit their own proposed findings of fact and conclusions of law for review by the administrative law judge. The administrative law judge will issue Proposed Findings of Fact, Conclusions of Law, and a Recommended Order deciding the issues in dispute.
The majority of Recommended Orders are directly reviewable by the ultimate authority associated with your matter.
Not all cases will follow this process. Refer to the statutes, administrative rules, federal regulation (if any) and the administrative law judge assigned to your case for any detailed requirements or discuss your unique situation with an attorney.
Following the evidentiary hearing or submission of briefs, the ALJ must issue Findings of Fact, Conclusions of Law, and a Non-Final Order within ninety (90) days. Indiana Code § 4-21.5-3-27. This will be sent to all parties and to the ultimate authority for review unless otherwise stated on the ALJ’s Non-Final Order.
Agency Review of ALJ’s decision
The ultimate authority of the agency against which the appeal is taking place will review all non-final orders issued by the ALJ, and will issue a final order affirming, modifying, or dissolving the ALJ’s order. The ultimate authority may also remand the case back to the ALJ for additional proceedings. However, if no objection is filed regarding the ALJ’s order, then the ultimate authority shall affirm the order. If an objection is not filed, the ultimate authority may review any issue related to the order but must provide notice if it wishes to do so, per Indiana Code § 4-21.5-3-29(e). The ultimate authority will have sixty (60) days to issue a final order or remand the case.