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In Administrative Appeal, the Failure to File a Verified Petition Is Not a Fatal Defect

November 29, 2010

Prior to 2006, the Indiana Court of Appeals had required strict compliance with the Administrative Orders and Procedures Act, I.C. §§ 4-21.5-1-1, et seq, which among other things requires a timely verified petition for judicial review. In 2006, the Indiana Supreme Court held that "[a]ttorneys and judges alike frequently characterize a claim of procedural error as one of jurisdictional dimension" and that this was error. K.S. v. State, 849 N.E.2d 538, 54-41 (Ind. 2006). Thus, on November 24, 2010, the Indiana Court of Appeals revisited its earlier decisions finding that the requirement of a verified petition was jurisdictional and, based on K.S., held that it was merely procedural in St. Joseph Hospital v. Cain, 937 N.E.2d 903 (Ind. Ct. App. 2010), Case No. 02A05-1006-PL-386.

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Cain was employed by the Hospital, but was terminated in 2007. He then filed a charge with the local Human Rights Commission (HRC), claiming that the Hospital had discriminated against him. The HRC found for Cain on February 25, 2010. On March 10, 2010, the Hospital filed an unverified petition for judicial review. On April 5, 2010, it filed an amended petition containing a verification. The HRC moved to dismiss, arguing that the Hospital's failure to timely file a verified petition was a jurisdictional defect. The trial court granted that motion and the Hospital appealed.

In 1996, the Indiana Court of Appeals had held that although an unverified petition was timely filed, the motion to amend the petition was filed after the thirty-day period expired and "the trial court never obtained jurisdiction over the case." Hoosier Envtl. Council v. Dep't of Natural Resources, 673 N.E.2d 811, 815 (Ind. Ct. App. 1996). On appeal, the Court analyzed whether the Supreme Court's decision in K.S. changed this outcome. It held that it did.

First, the HRC offers no explanation as to why the analysis of jurisdictional concepts in K.S. applies with less force in an AOPA case than it does in a juvenile delinquency adjudication. Either a trial court has subject matter jurisdiction—the power to decide the general class to which any particular proceeding belongs—or it does not. Second, although K.S. clarifies certain jurisdictional concepts, we do not believe it is a "new trend." Moreover, the legislature's inaction could even arguably be seen as acquiescence to our supreme court's analysis of subject matter jurisdiction. Thus, the HRC has not convinced us that K.S. does not apply here.

The unverified petition could be amended pursuant to Trial Rule 15, so the trial court's decision dismissing the case should be reversed.

The Hospital tried arguing an alternative basis for dismissal, a lack of a quorum, but the Court refused to rule on the merits of that argument.

Even if the HRC lacked the necessary quorum to approve the final order and its actions are considered invalid, many procedural obstacles associated with the presentation of this issue in this manner prevent us from resolving the quorum question on the merits. Aside from lack of record, a petition for judicial review must set forth specific facts demonstrating that the petitioner has been prejudiced by one or more of the grounds described in Indiana Code Section 4-21.5-5-14, including that an agency action is without observance of procedure required by law. Although the lack of a quorum clearly fits in this category, St. Joseph did not raise the issue in its petition for judicial review. Additionally, St. Joseph has not argued, let alone established, that it was prejudiced by the lack of a quorum. AOPA requires a person to have been prejudiced before a trial court may set aside an agency action.

The quorum question comes to us prematurely in the form of St. Joseph's motion to dismiss. This question is not now appropriate for appellate review.

Lessons:

If pre-2006 cases discuss jurisdictional defects, re-analyze them to determine if they are actually procedural defects.
You cannot raise a defect in an administrative proceeding if it is not included in your petition for judicial review.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us
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TAG AOPA, IN Court of Appeals, Jurisdiction, Procedural Defect, Quorum, Verified Petition

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In Administrative Appeal, the Failure to File a Verified Petition Is Not a Fatal Defect

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