Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER PETER L. BOYLES
Attorney General of Indiana Rhame & Elwood
Portage, Indiana
FRANCES BARROW
Deputy Attorney General FILED
Indianapolis, Indiana Jun 18 2012, 9:54 am
CLERK
of the supreme court,
IN THE court of appeals and
tax court
COURT OF APPEALS OF INDIANA
INDIANA STATE POLICE, )
)
Appellant-Respondent, )
)
vs. ) No. 45A04-1110-MI-568
)
EARNEST HOWARD, JR. )
)
Appellee-Petitioner. )
APPEAL FROM THE LAKE CIRCUIT COURT
The Honorable George C. Paras, Judge
The Honorable Robert G. Vann, Magistrate
Cause No. 45C01-1007-MI-85
June 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Earnest Howard’s handgun license was revoked following an administrative hearing.1
Howard filed a petition for judicial review with the trial court and, ultimately, moved to
overturn the administrative decision. The trial court granted Howard’s motion and
overturned the administrative decision. The Indiana State Police raise two issues for our
review, one of which we find dispositive: whether the trial court abused its discretion by
denying the Indiana State Police’s motion to dismiss Howard’s petition. Concluding the trial
court did abuse its discretion, we reverse the trial court’s order overturning the administrative
decision.
Facts and Procedural History
In April 2010, the Indiana State Police conducted an administrative hearing to
determine whether Howard’s handgun permit should be revoked. The administrative law
judge (“ALJ”) issued a final decision in June 2010, making findings of fact and determining
Howard “is not a proper person to be licensed to carry a handgun under I.C. 35-47-1-7(3).
Therefore, his license to carry a handgun should be revoked.” Appendix to Brief of
Appellant at 64.
Thereafter, Howard appealed the ALJ’s determination by filing a petition for judicial
review on July 15, 2010. The summons and petition were served by certified mail on the
Indiana State Police and Indiana Attorney General on August 25, 2010. On September 17,
2010, the Indiana State Police moved to dismiss Howard’s petition, arguing Howard did not
1
Indiana Code section 35-47-2-5(a) grants authority to the Superintendent of the Indiana State Police
to suspend or revoke a handgun license “if he has reasonable grounds to believe that the person’s license
2
timely file an agency record or motion for extension of time. On September 24, 2010,
Howard filed a petition for extension of time, arguing confusion at the clerk’s office led to
late service of the petition and created good cause for an extension. The trial court granted
Howard’s petition for extension of time. On November 1, 2010, Howard filed the agency
record. After a hearing on the Indiana State Police’s motion to dismiss, the trial court denied
the motion on November 29, 2010. On May 9, 2011, Howard filed a motion to overturn the
administrative decision. In September 2011, the trial court granted Howard’s motion and
overturned the ALJ’s decision. The Indiana State Police now appeal.
Discussion and Decision
“We review de novo a court’s ruling on motions to dismiss for failure to timely file
necessary agency records where the court ruled on a paper record.” Ind. Family & Soc.
Servs. Admin. v. Meyer, 927 N.E.2d 367, 370 (Ind. 2010) (citing Wayne Cnty. Prop. Tax
Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove #29, 847 N.E.2d 924,
926 (Ind. 2006)). Indiana Code section 4-21.5-5-13 provides:
(a) Within thirty (30) days after the filing of the petition [for judicial review],
or within further time allowed by the court or by other law, the petitioner shall
transmit to the court the original or a certified copy of the agency record for
judicial review of the agency action, consisting of:
(1) any agency documents expressing the agency action;
(2) other documents identified by the agency as having been considered by it
before its action and used as a basis for its action; and
(3) any other material described in this article as the agency record for the type
of agency action at issue, subject to this section.
(b) An extension of time in which to file the record shall be granted by the
court for good cause shown. Inability to obtain the record from the responsible
agency within the time period permitted by this section is good cause. Failure
to file the record within the time permitted by this subsection, including any
should be suspended or revoked.”
3
extension period ordered by the court, is cause for dismissal of the petition for
review by the court, on its own motion, or on petition of any party of record to
the proceeding.
***
Our supreme court recently addressed the time requirement this statute imposes. In
Meyer, Alice Meyer formed a trust for the benefit of her descendants and gave the trust a
remainder interest in her family farm. 927 N.E.2d at 368. When Meyer applied for
Medicaid, the Indiana Family and Social Services Administration (“FSSA”) denied her
request. The denial was, among other factors, based on Meyer’s transfer of the farm to the
trust rather than liquidating it and using the proceeds to support herself. Meyer sought a
hearing before an ALJ. After a hearing, the ALJ valued the farm at $210,000. Meyer’s trust
requested review of the ALJ’s decision, arguing the value of the remainder interest was
approximately $104,000, not the full $210,000 value of the farm.
The FSSA affirmed the ALJ’s decision on November 13, 2006. On December 8,
2006, the trust filed a petition for judicial review. On January 5, 2007, the trust filed a
request for the agency to prepare the record, and filed a request with the trial court for a
sixty-day extension to submit the record, which the trial court granted, setting March 5, 2007,
as the due date. However, the trust did not file the agency record or otherwise request further
extension by March 5, and on April 12, the FSSA moved to dismiss the petition. On April
18, the trust responded and requested permission to file a belated agency record. The trial
court granted the trust’s request. The FSSA appealed, arguing it was improper for the trial
court to deny its motion to dismiss.
Our supreme court agreed, stating:
4
We believe [Indiana Code section 4-21.5-5-13] is clear. The statute
places on the petitioner the responsibility to file the agency record timely.
Although the statute allows a petitioner to seek extensions of time from the
trial court, and requires that extensions be granted if the petitioner
demonstrates “good cause” for a delay in filing the record, the statute does not
excuse untimely filing or allow nunc pro tunc extensions. . . . In short, the
statute acknowledges possible difficulties in preparing and submitting the
agency record, but places the burden on the petitioner to file or seek an
extension within the statutory period or any extension.
Id. at 370-71. In summary, the supreme court concluded, “[w]e hold that a trial court has no
authority to grant an extension of time to file the record in a petition for review of an
administrative agency action . . . if the record is not filed within the required statutory period
or any authorized extension of this period.” Id. at 368.
Howard does not address Meyer. Rather, he argues the statute gives trial courts the
discretion to dismiss petitions when agency records are untimely filed, but does not require
trial courts to dismiss such untimely petitions. Pursuant to Meyer, this is incorrect. Howard
also asserts that the trial court found good cause for which to grant Howard an extension and
that the trial court found Howard did in fact timely file a request for an extension of time. He
is correct that the trial court found that his request for an extension of time was timely;
however, such finding was in error. Howard filed his petition for judicial review of the
administrative decision on July 15, 2010, and did not file a petition for extension of time until
September 24, 2010. This is well beyond the thirty day time period allotted by Indiana Code
section 4-21.5-5-13(a), and, as our supreme court stated in Meyer, the statute does not allow
nunc pro tunc extensions. We therefore need not consider whether Howard’s delay in filing
the agency record was for good cause because even if it was, the statute requires a petitioner
5
to request an extension of time within the thirty day period if the agency record cannot be
filed within the thirty day period, even where the delay in filing the record is for good cause.
Indiana State Police’s motion to dismiss should have been granted, and we therefore reverse
the trial court’s order overturning the administrative decision.
Conclusion
The trial court erred in granting Howard an extension of time and denying the Indiana
State Police’s motion to dismiss the petition. We therefore reverse the trial court’s order
overturning the administrative decision, and the ALJ’s decision is reinstated.
Reversed.
BAILEY, J., and MATHIAS, J., concur.
6