CHAPTER 5. JUDICIAL REVIEW
IC 4-21.5-5
Chapter 5. Judicial Review
IC 4-21.5-5-1
Exclusive means for judicial review; exceptions
Sec. 1. Except as provided in IC 22-9 and IC 22-9.5, this chapterestablishes the exclusive means for judicial review of an agencyaction. However, a subpoena, discovery order, or protective orderissued under this article may be contested only in an action for civilenforcement under IC 4-21.5-6-2.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.17;P.L.14-1994, SEC.1.
IC 4-21.5-5-2
Petition; persons entitled to judicial review
Sec. 2. (a) Judicial review is initiated by filing a petition forreview in the appropriate court.
(b) Only a person who qualifies under:
(1) section 3 of this chapter concerning standing;
(2) section 4 of this chapter concerning exhaustion ofadministrative remedies;
(3) section 5 of this chapter concerning the time for filing apetition for review;
(4) section 13 of this chapter concerning the time for filing theagency record for review; and
(5) any other statute that sets conditions for the availability ofjudicial review;
is entitled to review of a final agency action.
(c) A person is entitled to judicial review of a nonfinal agencyaction only if the person establishes both of the following:
(1) Immediate and irreparable harm.
(2) No adequate remedy exists at law. (The failure of a personto comply with the procedural requirements of this article maynot be the basis for a finding of an inadequate remedy at law.)
As added by P.L.18-1986, SEC.1.
IC 4-21.5-5-3
Standing
Sec. 3. (a) The following have standing to obtain judicial reviewof an agency action:
(1) A person to whom the agency action is specifically directed.
(2) A person who was a party to the agency proceedings that ledto the agency action.
(3) A person eligible for standing under a law applicable to theagency action.
(4) A person otherwise aggrieved or adversely affected by theagency action.
(b) A person has standing under subsection (a)(4) only if:
(1) the agency action has prejudiced or is likely to prejudice theinterests of the person; (2) the person:
(A) was eligible for an initial notice of an order orproceeding under this article, was not notified of the order orproceeding in substantial compliance with this article, anddid not have actual notice of the order or proceeding beforethe last date in the proceeding that the person could object orotherwise intervene to contest the agency action; or
(B) was qualified to intervene to contest an agency actionunder IC 4-21.5-3-21(a), petitioned for intervention in theproceeding, and was denied party status;
(3) the person's asserted interests are among those that theagency was required to consider when it engaged in the agencyaction challenged; and
(4) a judgment in favor of the person would substantiallyeliminate or redress the prejudice to the person caused or likelyto be caused by the agency action.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.18;P.L.178-2002, SEC.1; P.L.219-2007, SEC.5.
IC 4-21.5-5-4
Exhaustion of administrative remedies; waiver of right to review
Sec. 4. (a) A person may file a petition for judicial review underthis chapter only after exhausting all administrative remediesavailable within the agency whose action is being challenged andwithin any other agency authorized to exercise administrative review.
(b) A person who:
(1) fails to timely object to an order or timely petition forreview of an order within the period prescribed by this article;or
(2) is in default under this article;
has waived the person's right to judicial review under this chapter.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-5-5
Time for filing
Sec. 5. Except as otherwise provided, a petition for review istimely only if it is filed within thirty (30) days after the date thatnotice of the agency action that is the subject of the petition forjudicial review was served.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-5-6
Venue
Sec. 6. (a) Venue is in the judicial district where:
(1) the petitioner resides or maintains a principal place ofbusiness;
(2) the agency action is to be carried out or enforced; or
(3) the principal office of the agency taking the agency actionis located.
(b) If more than one (1) person may be aggrieved by the agency
action, only one (1) proceeding for review may be had, and the courtin which a petition for review is first properly filed has jurisdiction.
(c) The rules of procedure governing civil actions in the courtsgovern pleadings and requests under this chapter for a change ofjudge or change of venue to another judicial district described insubsection (a).
(d) Each person who was a party to the proceeding before theagency is a party to the petition for review.
As added by P.L.18-1986, SEC.1. Amended by P.L.198-2001, SEC.3;P.L.219-2007, SEC.6.
IC 4-21.5-5-7
Petition; filing; contents
Sec. 7. (a) A petition for review must be filed with the clerk of thecourt.
(b) A petition for review must be verified and set forth thefollowing:
(1) The name and mailing address of the petitioner.
(2) The name and mailing address of the agency whose actionis at issue.
(3) Identification of the agency action at issue, together with acopy, summary, or brief description of the agency action.
(4) Identification of persons who were parties in anyproceedings that led to the agency action.
(5) Specific facts to demonstrate that the petitioner is entitled toobtain judicial review under section 2 of this chapter.
(6) Specific facts to demonstrate that the petitioner has beenprejudiced by one (1) or more of the grounds described insection 14 of this chapter.
(7) A request for relief, specifying the type and extent of reliefrequested.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.19.
IC 4-21.5-5-8
Service; rules of procedure
Sec. 8. (a) A petitioner for judicial review shall serve a copy ofthe petition upon:
(1) the ultimate authority issuing the order;
(2) the ultimate authority for each other agency exercisingadministrative review of the order;
(3) the attorney general; and
(4) each party to the proceeding before an agency;
in the manner provided by the rules of procedure governing civilactions in the courts. If the ultimate authority consists of more thanone (1) individual, service on the ultimate authority must be made tothe secretary or chairperson of the ultimate authority.
(b) The petitioner shall use means provided by the rules ofprocedure governing civil actions in the courts to give notice of thepetition for review to all other parties in any proceedings that led tothe agency action.As added by P.L.18-1986, SEC.1.
IC 4-21.5-5-9
Stay of order pending court decision
Sec. 9. (a) If a petition for judicial review concerns a matter otherthan an assessment or determination of tax due or claimed to be duethe state, and the law concerning the agency whose order is beingreviewed does not preclude a stay of the order by the court, theperson seeking the review may seek, by filing a verified petition, anorder of the court staying the action of the agency pending decisionby the court. The court may enter an order staying the agency orderpending a final determination if:
(1) the court finds that the petition for review and the petitionfor a stay order show a reasonable probability that the order ordetermination appealed from is invalid or illegal; and
(2) a bond is filed that is conditioned upon the due prosecutionof the proceeding for review and that the petitioner will pay allcourt costs and abide by the order of the agency if it is not setaside. The bond must be in the amount and with the suretyapproved by the court. However, the amount of the bond mustbe at least five hundred dollars ($500).
(b) If a petition for review concerns a revocation or suspension ofa license and the law governing the agency permits a staying of theaction of the agency by court order pending judicial review, any stayordered under subsection (a) is effective during the period of thereview and any appeal from the review and until the review is finallydetermined, unless otherwise ordered by the court granting the stay.If the stay is granted as provided in this section and the determinationof the agency is approved on final determination, the revocation orsuspension of the license immediately becomes effective.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.20.
IC 4-21.5-5-10
Issues not raised before agency
Sec. 10. A person may obtain judicial review of an issue that wasnot raised before the agency, only to the extent that:
(1) the issue concerns whether a person who was required to benotified by this article of the commencement of a proceedingwas notified in substantial compliance with this article; or
(2) the interests of justice would be served by judicialresolution of an issue arising from a change in controlling lawoccurring after the agency action.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.21.
IC 4-21.5-5-11
Fact issues confined to record
Sec. 11. Judicial review of disputed issues of fact must beconfined to the agency record for the agency action supplemented byadditional evidence taken under section 12 of this chapter. The courtmay not try the cause de novo or substitute its judgment for that of
the agency.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-5-12
Evidence; remand to agency for further factfinding
Sec. 12. (a) The court may receive evidence, in addition to thatcontained in the agency record for judicial review, only if it relatesto the validity of the agency action at the time it was taken and isneeded to decide disputed issues regarding one (1) or both of thefollowing:
(1) Improper constitution as a decision-making body or groundsfor disqualification of those taking the agency action.
(2) Unlawfulness of procedure or of decision-making process.
This subsection applies only if the additional evidence could not, bydue diligence, have been discovered and raised in the administrativeproceeding giving rise to a proceeding for judicial review.
(b) The court may remand a matter to the agency before finaldisposition of a petition for review with directions that the agencyconduct further factfinding or that the agency prepare an adequaterecord, if:
(1) the agency failed to prepare or preserve an adequate record;
(2) the agency improperly excluded or omitted evidence fromthe record; or
(3) a relevant law changed after the agency action and the courtdetermines that the new provision of law may control theoutcome.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-5-13
Transmittal of agency record; costs; corrections or additions
Sec. 13. (a) Within thirty (30) days after the filing of the petition,or within further time allowed by the court or by other law, thepetitioner shall transmit to the court the original or a certified copyof 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 beenconsidered by it before its action and used as a basis for itsaction; and
(3) any other material described in this article as the agencyrecord for the type of agency action at issue, subject to thissection.
(b) An extension of time in which to file the record shall begranted by the court for good cause shown. Inability to obtain therecord from the responsible agency within the time permitted by thissection is good cause. Failure to file the record within the timepermitted by this subsection, including any extension period orderedby the court, is cause for dismissal of the petition for review by thecourt, on its own motion, or on petition of any party of record to theproceeding. (c) Upon a written request by the petitioner, the agency taking theaction being reviewed shall prepare the agency record for thepetitioner. If part of the record has been preserved without atranscript, the agency shall prepare a transcript for inclusion in therecord transmitted to the court, except for portions that the parties tothe judicial review proceeding stipulate to omit in accordance withsubsection (e).
(d) Notwithstanding IC 5-14-3-8, the agency shall charge thepetitioner with the reasonable cost of preparing any necessary copiesand transcripts for transmittal to the court, unless a person files withthe court, under oath and in writing, the statement described byIC 33-37-3-2.
(e) By stipulation of all parties to the review proceedings, therecord may be shortened, summarized, or organized.
(f) The court may tax the cost of preparing transcripts and copiesfor the record:
(1) against a party to the judicial review proceeding whounreasonably refuses to stipulate to shorten, summarize, ororganize the record; or
(2) in accordance with the rules governing civil actions in thecourts or other law.
(g) Additions to the record concerning evidence received undersection 12 of this chapter must be made as ordered by the court. Thecourt may require or permit subsequent corrections or additions tothe record.
As added by P.L.18-1986, SEC.1. Amended by P.L.11-1987, SEC.6;P.L.3-1989, SEC.24; P.L.98-2004, SEC.47.
IC 4-21.5-5-14
Burden of proof; standards of review
Sec. 14. (a) The burden of demonstrating the invalidity of agencyaction is on the party to the judicial review proceeding assertinginvalidity.
(b) The validity of agency action shall be determined inaccordance with the standards of review provided in this section, asapplied to the agency action at the time it was taken.
(c) The court shall make findings of fact on each material issue onwhich the court's decision is based.
(d) The court shall grant relief under section 15 of this chapteronly if it determines that a person seeking judicial relief has beenprejudiced by an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise notin accordance with law;
(2) contrary to constitutional right, power, privilege, orimmunity;
(3) in excess of statutory jurisdiction, authority, or limitations,or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.22.
IC 4-21.5-5-15
Disposition
Sec. 15. If the court finds that a person has been prejudiced undersection 14 of this chapter, the court may set aside an agency actionand:
(1) remand the case to the agency for further proceedings; or
(2) compel agency action that has been unreasonably delayed orunlawfully withheld.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.23.
IC 4-21.5-5-16
Decisions on petitions; appeal
Sec. 16. Decisions on petitions for review of agency action areappealable in accordance with the rules governing civil appeals fromthe courts.
As added by P.L.18-1986, SEC.1.