ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
John H. Brooke Steve Carter
Casey D. Cloyd Attorney General of Indiana
Brooke & Cloyd, P.C.
Muncie, Indiana Jon Laramore
Deputy Attorney General
Douglas R. Brown Indianapolis, Indiana
Philip R. Thompson
Stewart & Irwin ATTORNEYS FOR AMICUS
Indianapolis, Indiana MR. FIREWORKS, INC.
Bradley D. Hamilton
Hamilton Law Office
Kokomo, Indiana
IN THE
SUPREME COURT OF INDIANA
THE INDIANA FIREWORKS DISTRIBUTORS )
ASSOCIATION, THE INDIANA FIREWORKS )
USERS ASSOCIATION, INC., )
CELEBRATION FIREWORKS, INC., and )
PATRIOTIC FIREWORKS, INC., ) No. 49S02-0106-CV-316
) in the Supreme Court
Appellants (Defendants Below),)
)
v. ) No. 49A02-0004-CV-225
) in the Court of Appeals
M. TRACY BOATWRIGHT, in his )
official capacity as INDIANA STATE )
FIRE MARSHAL, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable William Lawrence, Judge
Cause No. 49C01-9712-CP-2847
March 12, 2002
SHEPARD, Chief Justice.
In this case, the Indiana State Fire Marshal has asked for a court
interpretation of the statute prohibiting the retail sale of certain
fireworks. He says the Court of Appeals erred in concluding that he lacks
standing to seek a declaratory judgment in his official capacity. We agree
with the Court of Appeals, but granted transfer to emphasize that this
conclusion does not restrain the Fire Marshal from enforcing the law as he
reads it.
Facts and Procedural History
Indiana Code Ann. § 22-11-14-8 (West 2001) (Section 8) prohibits the
retail sale of fireworks, except for certain relatively harmless items such
as wire sparklers, party poppers and cigarette loads. Indiana Code Ann. §
22-11-14-2 (West 2001) (Section 2) authorizes supervised public displays of
fireworks by “organizations or groups of individuals” who obtain properly
issued permits.
Certain Indiana fireworks sellers (Sellers) formulated a plan to use
Section 2 to avoid Section 8’s prohibitions on retail sale. These Sellers
entered into license agreements with the Indiana Fireworks Users
Association (IFUA), a not-for-profit corporation associated with the
Indiana Fireworks Distributors Association.[1] Retail customers who wish
to buy prohibited fireworks must pay two dollars for IFUA memberships. One
dollar goes to IFUA; the other to Safe-PAC, a state political action
committee that contributes to candidates for legislative and executive
offices.
When a retail customer pays this fee and signs an agreement not to
use items purchased in an unlawful manner, the seller lets him or her
purchase otherwise prohibited fireworks. IFUA obtains Section 2 permits
and operates about two dozen “display sites” on the Fourth of July and a
day before and/or after. (R. at 690.) IFUA members may take their
purchases to these sites, where pyrotechnicians will ignite their
fireworks. (Id.) The Sellers do not compel retail buyers to use their
fireworks only at these public display sites. (R. at 692.)
Fire Marshal M. Tracy Boatwright asserts that IFUA membership does
not legitimize the retail sale of fireworks not exempted by Section 8.
(Appellee’s Br. at 6-7.) He brought this action under Indiana’s Uniform
Declaratory Judgment Act (the Act), asking the court to hold that Section 2
does not authorize the retail sale of prohibited fireworks. The trial
court held for Boatwright, granting him summary judgment.
The Court of Appeals reversed. It applied Indiana Wholesale Wine &
Liquor Co. v. State ex rel. Indiana Alcoholic Beverage Commission, 695
N.E.2d 99 (Ind. 1998) (state agencies lack standing under the declaratory
judgment statute) and held that state officials acting in their official
capacity also lack standing under the Act. Ind. Fireworks Distrib. Ass’n
v. Boatwright, 741 N.E.2d 1262, 1264-65 (Ind. Ct. App. 2001). We granted
transfer. 753 N.E.2d 18 (Ind. 2001).
I. The Fire Marshal Lacks Standing . . .
The Court of Appeals was correct in holding that although Boatwright
is a natural person, and “[a]ny person interested” may bring a declaratory
judgment action under Ind. Code Ann. § 34-14-1-2 (West 2001), state
officials lack standing when acting on behalf of state agencies as
Boatwright does here. Indiana Code Ann. § 34-14-1-13 (West 2001), which
defines “person” for purposes of the Act, does not encompass state
agencies.[2] We agree with the Court of Appeals that it would be
incongruous to hold that state agencies have no right of action per our
decision in Indiana Wholesale Wine & Liquor, 695 N.E.2d at 103, but then
allow agency officials to bring identical actions. See Ind. Fireworks
Distrib. Ass’n, 741 N.E.2d at 1264. Among other things, such lawsuits in
effect allow state agencies to inappropriately shift some of their
enforcement responsibilities to the courts.
We therefore adopt and incorporate the clear, concise and correct
opinion of the Court of Appeals, which concluded, “A state official, acting
in his or her official capacity, may not bring a declaratory judgment
action pursuant to Indiana Code sections 34-14-1-2 and -13.” Ind.
Fireworks Distrib. Ass’n, 741 N.E.2d at 1265; Ind. Appellate Rule 58(A)(1).
II. . . . But He Does Not Lack Enforcement Authority
Marshal Boatwright says that a declaratory judgment is necessary “to
vindicate this public policy [i.e., safety] and protect the public.”
(Appellee’s Pet. to Trans. at 5.) He describes his goal in bringing this
action as “trying to clarify – once and for all – the scope of Section 8”
by “seeking a declaration to determine exactly what Section 8 prohibits.”
(Id. at 5-6.)
He seems to harbor no doubts, however, about how Section 8 works. He
says Sellers wrongly read Section 2 as containing “a loophole big enough to
drive an explosives truck through.” (Appellee’s Br. at 10.) In fact,
“Section 2 does not permit retail sale of non-Section 8 fireworks. It
allows only for the public display of non-section 8 fireworks under
controlled conditions.” (Id. (emphasis in original)). He concludes,
“Sellers are unable to show any basis in the statutory language for their
contention that mere membership in [IFUA] permits retail customers to
purchase fireworks not listed in Section 8.” (Id. at 12-13.)
The marshal’s petition to transfer is equally adamant. In describing
the need for “clarification of the law,” it says, “The plain language of
the statute clearly prohibits the retail sale of all non-Section 8
fireworks, and a court need not go beyond the plain language to construe
the statute.” (Appellee’s Pet. to Trans. at 7, 10.)
Because state officials lack statutory standing to obtain declaratory
judgments, we do not say whether we agree with this reading of the law.
Fortunately, the State Fire Marshal has authority to protect public safety
without the prerequisite of a declaratory judgment.
Indiana Code Ann. § 22-11-14-5(a) (West 2001) says, “The state fire
marshal shall remove at the expense of the owner, all stocks of fireworks
or combustibles possessed, transported, or delivered in violation of
[Chapter 14, ‘Regulation of Fireworks by Fire Marshal’].” (Emphasis
added.) The State Fire Marshal therefore has the power to confiscate
inventories of sellers who violate the fireworks statutes.
Furthermore, Ind. Code Ann. § 22-11-14-5(b) (West 2001) empowers the
State Fire Marshal to revoke the required certificate of compliance of any
manufacturer, wholesaler, importer, or distributor if that certificate
holder violates any Chapter 14 provisions. Indiana Code Ann. § 22-11-14-7
(West 2001) requires retailers selling fireworks at temporary stands to
obtain retail sales permits from the State Fire Marshal.
In short, the Fire Marshal does not need our go-ahead to enforce the
fireworks statutes. He acknowledges that he has alternatives available,
namely, enforcing the law,[3] but declares that to be a “substantial step.”
(Appellee’s Rep. Br. on Trans. at 2.) It is an unusual approach to law
enforcement by a regulatory agency: the agency continues to issue licenses
to applicants whom it believes are violating the law, forswears taking
action against any of the violators, and seeks declaratory judgment in the
hope they will cease and desist.
The Fire Marshal seeks “a way to solve a longstanding problem without
economically disrupting the fireworks industry.” (Appellee’s Pet. to
Trans. at 6-7.) Of course, any enforcement action or court judgment
favorable to Boatwright would be disruptive to an industry described by the
Fire Marshal as rife with violations.
To be sure, enforcement actions are subject to judicial review under
the Administrative Orders and Procedures Act,[4] and Boatwright says he
fears suits for discriminatory enforcement and potential civil rights
claims if he uses his statutory seizure powers. (Appellee’s Pet. to Trans.
at 5, 7.) This anxiety cannot be grounded in actual experience. Over the
past fifteen years, fire chiefs, prosecutors, and the Fire Marshal have
prevailed in every reported Indiana decision we can find.[5]
Conclusion
We reverse the judgment of the trial court, and remand for dismissal
of this action.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Licensees must also be members of the Indiana Fireworks Distributors
Association, a trade association comprised of over seventy percent of the
fireworks dealers in Indiana. (R. at 688.)
[2] “Person” as used in the Act includes “any person, partnership, limited
liability company, joint stock company, unincorporated association, or
society, or municipal or other corporation . . . .” Ind. Code Ann. § 34-14-
1-13 (West 2001).
[3] But see Jennifer Wagner, Panel Passes Major Fireworks Bill,
Indianapolis Star, Feb. 14, 2001, at D3; George Stuteville, Pyrotechnic
Laws Frustrate Fire Marshal; Lack of Enforcement, Confusion Reign in State,
Indianapolis Star, July 2, 2001, at B1 (“You can flagrantly break the law
and nothing happens to you,” says the Fire Marshal, because the law leaves
him powerless.).
[4] See Ind. Code Ann. §§ 4-21.5-5-4, 14 (West 2001).
[5] See, e.g., Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450 (Ind.
2000) (affirming summary judgment for fire chief in defamation action
because plaintiff fireworks company did not comply with notice provisions
of Indiana Tort Claims Act); State v. Windy City Fireworks, Inc., 608
N.E.2d 699 (Ind. 1993) (buyer’s execution of statement of intent to ship
prohibited fireworks out of state did not render retail sale of fireworks
to general public legal); Hill v. State, 488 N.E.2d 709 (Ind. 1986) (retail
fireworks dealers could not avoid prosecution for selling illegal fireworks
simply by having buyers sign statements to the effect that they were
nonresidents who planned to immediately ship the contraband out of state);
Brandmaier v. Metro. Dev. Comm’n, 714 N.E.2d 179 (Ind. Ct. App. 1999)
(upholding zoning restriction prohibiting sale of fireworks in C-3 zones);
Boatwright v. Celebration Fireworks, Inc., 677 N.E.2d 1094 (Ind. Ct. App.
1997) (reversing preliminary injunction granted by trial court to fireworks
corporation challenging fire marshal’s authority to require certificates of
compliance for each wholesale outlet location); Hauer v. BRDD of Indiana,
Inc., 654 N.E.2d 316 (Ind. Ct. App. 1995) (fireworks wholesaler lacked
standing to challenge legality of certificates of compliance issued to its
competitors); State v. King, 502 N.E.2d 1366 (Ind. Ct. App. 1987) (trial
court erred in dismissing information alleging unlawful sale of fireworks
based on defendants’ claim that they came within statutory exception to
charged crime).