HB 1063 – De Novo Judicial Review of Agency Action
Authored by Rep. Chris Jeter (R-Fishers)
This bill, as introduced, requires a court in a judicial review of an agency action to review all issues of law and fact de novo and without deference to any previous interpretation made by the agency. It provides that the burden of proving the validity of an agency action is on the agency.
Chamber Position: Oppose
The latest: House Bill 1063 was heard in the House Judiciary Committee Wednesday. Representative Jeter offered an amendment at the committee hearing, which passed (by consent). The amendment changed the burden of proof in an action for judicial review to the party that had the burden of proof before the administrative law judge (which is what current law states). The amendment also added back in the long-established standard that the court shall grant relief if it determines that a person seeking judicial relief has been prejudiced by an agency action that is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
Several witnesses testified in opposition or were neutral to the bill with only one witness testifying in support. Although testimony was offered, no vote was taken. Instead, Rep. Jeter committed to work on making the bill better. The committee may vote on the amended bill at a future committee meeting.
Indiana Chamber action/commentary: Administrative proceedings are typically brought to seek review of an agency’s decision, whether that decision relates to a permit, license, approval, rule or enforcement action. Typically, it is a challenge brought before an administrative law judge who conducts a fact-finding hearing that looks very much like a streamlined trial. This judge issues an order on the matter after taking evidence and hearing the parties’ legal arguments. If one of the parties disagrees, they can appeal that decision to the ultimate authority (board or commission) that has oversight of the agency. Once the ultimate authority makes a determination, all administrative remedies are exhausted and an administrative record is created (under the executive branch of government). The matter can then be appealed to the judicial branch, typically at the local trial court level, but under some statutes directly to the Court of Appeals.
We testified in opposition to the bill. It would change the long-standing process to the review/challenge of agency actions by requiring the case to start over once the appeal reached the judicial branch. Creating a new evidentiary record would be duplicating what has already been done. This would likely overburden the court system, increase costs overall, decrease regulatory certainty and increase delays for businesses. Having two distinct but parallel legal proceedings for what will likely be the same outcome is a bad idea. It is also worth noting that the Indiana Office of Administrative Law Proceedings was created (under HB 1223 in 2019) to improve the administrative appeals process in Indiana.
Resource: Greg Ellis at (317) 264-6881 or email: gellis@indianachamber.com
