Summary of a Recent
Judicial Development in
Animal Feeding Operations

Motion to Disqualify an ALJ Does Not Excuse
Failure to Respond to a Default

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Breitweiser v. Indiana Office of Environmental Adjudication, 810 N.E.2d 699 (Ind. 2004), the Indiana Supreme Court held that the petitioner's motion to disqualify an Administrative Law Judge does not relieve the party of the statutory necessity to respond to a possible default under the Administrative Orders and Procedures Act.

Background

The Indiana Department of Environmental Management (IDEM) issued a permit to Ferguson to operate a confined animal feeding operation (CAFO) for swine, and the Breitweisers filed a petition for administrative review and stay with the Office of Environmental Adjudication (OEA). Id. at 701. The Breitweisers requested that the Environmental Law Judge (ELJ) Lasley disqualify herself, but Lasley refused. Id. Lasley subsequently disqualified herself, and Chief ELJ Penrod presided over the case. Id. On May 19, 1999, the Breitweisers moved to disqualify Penrod and vacate Lasley's prior rulings. Id. On May 26, 1999, Judge Penrod issued a proposed order of default because the Breitweisers did not file responses to the pending motion for summary judgment or discovery responses within the designated deadline. Id. The Breitweisers did not file a written response to this notice, but instead filed a Verified Complaint for Writ of Mandate. Id. The Marion Superior Court entered a dismissal order stating that Judge Penrod would rule upon the motion to vacate all prior rulings. Id. at 701-02. Two days after this ruling, Judge Penrod entered three orders: he denied the Breitweisers' motion for his disqualification, he denied the motion to vacate Lasley's rulings, and he found the Breitweisers in default for the failure to respond to discovery requests. Id. at 702.

Arguments

The Breitweisers argued that default was improper because they were not compelled to file a response to the proposed notice of default. Id.

Analysis and Holdings

The court held that, although the Breitweisers were not obligated to respond to the proposed notice of default, they are not sheltered from the consequences associated with the non-response. Id. at 703. If a party fails to file a written motion, then the ALJ shall issue the default order. Id. The court found that Judge Penrod was compelled by statute to issue a default ruling. Id. Failing to timely object to an order waived the right to judicial review, therefore barring the Breitweisers' appeal. Id.

The case was decided on June 22, 2004.