Unless deemed to be an emergency, new laws or sections of new laws in Indiana usually become effective on July 1st to coincide with the State's new fiscal year. The exception would be if within the body of the new law there is a later effective date. So, many of the provisions of Senate Bill (SB) 609, which was deemed the "horse racing" bill, go into effect today. This includes a requirement for the Indiana Horse Racing Commission (IHRC) to annually report the competitiveness of Indiana racing versus other states (maybe they will actually learn something by doing so), to annually post to their website a summary of disciplinary actions taken (like most other states), and to "develop internal procedures for accepting, recording, investigating, and resolving complaints from licensees and the general public." In sworn testimony as part of a hearing in 2012, when asked whether the IHRC had a formal written complaint procedure, Executive Director Joe Gorajec said, "I'm not certain." Well, now the IHRC has a requirement to create a complaint and response policy. In addition, all complaints and their resolutions must also be posted to the IHRC website.
Many of the provisions within SB 609 were developed from the 2011 investigation into the IHRC by Indiana's Inspector General (IG). The reaction by the IHRC to many of the recommendations in the IG's report was to say the least underwhelming which necessitated changes in the law to force a few issues. One of those issues was the IHRC's system of due process and disciplinary action, which the IG suggested may actually be detrimental to horse racing. Essentially, what portions of SB 609 are designed to do is force the IHRC to follow existing laws rather than create administrative rules (their own laws) that attempt to circumvent Indiana statute. Given IBOP's interpretation of SB 609, the IHRC should be required to significantly modify, and eliminate, large portions of their administrative rules in '71 IAC 10 Due Process and Disciplinary Action.' This aspect of SB 609, however, doesn't go into effect until January 1, 2014, giving the IHRC the next six months to rework and/or eliminate their administrative rules that conflict with what will be Indiana law. But, will they? One possible answer to that question leads us to our Administrative Rule of the Month,'71 IAC 10-2-3 Summary suspension.'
Knowing that SB 609 would require the IHRC to overhaul or eliminate portions of their administrative rules, in March, IBOP tested the IHRC's willingness to modify a due process administrative rule that is clearly beyond current Indiana statute. So, IBOP petitioned the IHRC to amend '71 IAC 10-2-3 Summary suspension' to conform with 'IC 4-21.5 Administrative Orders & Procedures Act,' which should be the law of the land here in Indiana even for the IHRC. (At the same time, we raised this particular administrative rule to the legislative team that actually drafted SB 609, even suggesting additional language be added to SB 609.) Our petition asked for the IHRC to amend 71 IAC 10-2-3 by striking 71 IAC 10-2-3(c), as being contrary to Indiana law as it is written today. 71 IAC 10-2-3(c) can be seen copied below.
For some background, a summary suspension is simply a suspension of a person's license without first having a hearing. Two Indiana laws, IC 4-31-12-15(a)(2) for medication violations and IC 4-31-13-2(a)(2) for other infractions, provide that judges and stewards may sanction a licensee with "A temporary order or other immediate action in the nature of a summary suspension if a licensee's actions constitute an immediate danger to the public health, safety, or welfare." Neither IC 4-31-12-15(a)(2) or IC 4-31-13-2(a)(2) make any direct reference of an authorization for the judges or the stewards to issue these suspension without a hearing, but is implied by "immediate action." IBOP's view is that an order of this type is governed by Indiana law via IC 4-21.5-4 and not procedures established through the IHRC administrative rules. In fact, our view is actually reinforced by the IHRC's own language used in 71 IAC 10-2-3(a) which is copied below:
71 IAC 10-2-3 Summary suspension
Authority: IC 4-31-3-9
Affected: IC 4-21.5-4; IC 4-31-13
Sec. 3. (a) If the judges determine that a licensee's actions constitute an immediate danger to the public health, safety, or welfare, or are not in the best interest of racing, or compromise the integrity of operations at a track or satellite facility, the judges may summarily suspend the license pending a hearing pursuant to the provisions of IC 4-21.5-4.
(b) A licensee whose license has been summarily suspended by the judges is entitled to a hearing following a written request by the licensee.
(c) The judges shall conduct a hearing on the summary suspension in the same manner as other disciplinary hearings. At a hearing on a summary suspension, the sole issue is whether the licensee's license should remain suspended pending a final disciplinary hearing and ruling.
(d) Notwithstanding the provisions of 71 IAC 10-3-20, the commission delegates to the executive director the authority to summarily suspend licenses at any time that a live race meeting is not being conducted on association premises or when the judges are not otherwise available. The commission delegates to the executive director the authority to summarily suspend licenses at satellite facilities at any time. In the event of a summary suspension by the executive director and if the licensee makes a written request for a hearing, a hearing on the summary suspension shall be conducted by the commission or an administrative law judge as quickly as is practicable. (Indiana Horse Racing Commission; 71 IAC 10-2-3; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1198; emergency rule filed Jan 27, 1995, 3:30 p.m.: 18 IR 1505; emergency rule filed Nov 30, 1995, 1:00 p.m.: 19 IR 688; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2162; emergency rule filed Feb 13, 1998, 10:00 a.m.: 21 IR 2426; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
Very clearly, 71 IAC 10-2-3(a) states that a summary suspension is governed by "IC 4-21.5-4" which is labeled as "Special Proceedings; Emergency and Other Temporary Orders" in the Indiana Code and can be found at: http://www.in.gov/legislative/ic/code/title4/ar21.5/ch4.html. In a scenario where a summary suspension of a person’s license is issued without first having a hearing, that order is actually authorized and issued under IC 4-21.5-4-2(a)(1), and the balance of IC 4-21.5-4 spells out the required procedures. One of those procedures in IC 4-21.5-4-4 promises an evidentiary hearing “as quickly as is practical" with an administrative law judge having the ability to determine one of five potential outcomes. What is supposed to happen is that a hearing takes place where the judges' or stewards' decision is either “voided, terminated, modified, stayed, or continued.” That's the law, or supposed to be the law. The language in 71 IAC 10-2-3(c) directly contradicts what is written in current Indiana law via IC 4-21.5-4-4 which states:
IC 4-21.5-4-4
Hearings
Sec. 4. Upon a request by a party for a hearing on an order rendered under section 2(a)(1) of this chapter, the agency shall, as quickly as is practicable, set the matter for an evidentiary hearing. An administrative law judge shall determine whether the order under this chapter should be voided, terminated, modified, stayed, or continued.
As added by P.L.18-1986, SEC.1.
However, 71 IAC 10-2-3(c) attempts to circumvent the law by forcing a summarily suspended licensee to have a hearing in front of the judges or stewards, not an administrative law judge as per the current law, with only one possible outcome ("sole issue") as to whether or not a stay is granted pending further hearings. This portion of the IHRC's administrative rule is absolutely contrary to Indiana law. In other words, if 71 IAC 10-2-3(a) is an accurate representation of the IHRC's statutory responsibilities, which according to Indiana law it is, then 71 IAC 10-2-3(c) should not exist, yet it does. The IHRC is effectively creating their own law that deviates from current Indiana law. Yet, when petitioned with this information, the IHRC has done nothing to bring their administrative rule into compliance with current Indiana law. It's this attitude that provides no confidence that the IHRC will voluntarily adjust their 'Due Process and Disciplinary Action' section accordingly to comply with any new Indiana law.
As the year progresses, IBOP will be monitoring the progress (or lack of progress) at the IHRC regarding the changes required by SB 609. The best predictor of future behavior is past behavior. With that said, we're not expecting much, so IBOP is armed with a few strategies of our own using some nuances within Indiana's laws that can affect some changes. We'll have more on this subject later.
