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Indiana Supreme Court Declares Failure to File Agency Record Must Result in Dismissal - Appellate Practice News

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Appellate Practice News

Posted on: Nov 14, 2014

By Josh S. Tatum, Plews Shadley Racher & Braun LLP

On November 13, the Indiana Supreme Court resolved “a long-standing lack of consensus” and held that Indiana’s Administrative Orders and Procedures Act (AOPA) requires petitioners seeking judicial review of agency actions to file the official agency record with the trial court. The Court did so in a pair of decisions, both authored by Justice Robert D. Rucker and both unanimous. You can read the decisions in their entirety here. One decision resulted from a case in which the Indianapolis Bar Association’s Appellate Practice Section filed a brief as amicus curiae. Section Chair Stephen J. Peters of Plunkett Cooney PC and Josh S. Tatum of Plews Shadley Racher & Braun LLP filed the amicus brief and related filings on the Section’s behalf.

In Teaching Our Posterity Success, Inc. v. Indiana Department of Education, No. 49S05-1411-PL-0700 (Ind. 2014), and First American Title Insurance Co. v. Robertson, No. 49S04-1311-PL-732 (Ind. 2014), the Court established that failing to file the agency record with the trial court must result in the dismissal of a petition for judicial review. Citing Ind. Code § 4 21.5 5 13(b), the Court’s opinion emphasized that the statute’s requirement of filing “the original or a certified copy of the agency record” does not allow parties to file unofficial documents supporting their claims, even if those documents might provide the trial court enough information to decide the case.

The Court summarized the state of caselaw before today’s dual opinions: “If the trial court cannot decide the issue based on the documents before it,” the trial court  then ‘cause for dismissal’ is read to mean the appeal ‘shall be dismissed.’” But, under previous authority, if the trial court has enough information to decide, even if the information is not prepared by the agency, then the absence of the record permits dismissal but did not require it.

Replacing that more flexible precedent, the Court declared a bright-line rule that trial courts cannot consider judicial-review petitions unless the statutorily defined agency record has been filed. The parties had not filed the agency record in either Teaching Our Posterity Success or First American Title. But the trial courts took different approaches. In Teaching Our Posterity Success, the trial court granted the Department of Education’s motion to dismiss. In First American Title, the trial court denied the Insurance Commissioner’s motion to dismiss. As a result, the Court affirmed the first trial court and reversed the second.

The Appellate Practice Section’s brief asked the Supreme Court to grant transfer to resolve the mixed guidance from previous decisions and to “provide guidance for the bench and bar alike” for the countless proceeding governed by AOPA. The section did not take a position on the merits of the appeal beyond the procedural questions. The Court granted transfer and provided the sought-after guidance.

Josh Tatum, an associate at Plews Shadley Racher & Braun, is an at-large member of the IndyBar Appellate Practice Section’s Executive Committee and serves on its amicus subcommittee.

This article was written by Josh S. Tatum of Plews Shadley Racher & Braun LLP. If you would like to submit content or write an article for the Appellate Practice Section page, please email Mary Kay Price at


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