The following email was sent to Indiana Horse Racing Commission Executive Director Joe Gorajec, Assistant Executive Director Deana Pitman, General Counsel Lea Ellingwood, and Chairman Bill Diener.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of '71 IAC 10-2-3 Summary suspension' to conform with IC 4-21.5 Administrative Orders & Procedures Act (AOPA). Please consider this correspondence as IBOP’s petition for the IHRC to amend 71 IAC 10-2-3 by striking 71 IAC 10-2-3(c). Our view is that this subsection directly contradicts portions of IC 4-21.5-4 Special Proceedings; Emergency and Other Temporary Orders, which is attached for your review and reference. IBOP would appreciate the change to this administrative rule be considered as an agenda item at the next regularly scheduled IHRC meeting.
Both IC 4-31-12-15(a)(2) and IC 4-31-13-2(a)(2) 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." We feel an order of this type would then be governed by IC 4-21.5-4 which is a view reinforced by the 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)
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 a suspension without a hearing. In a scenario where a summary suspension of a person’s license is issued without first having a hearing, we believe the order would be authorized and issued under IC 4-21.5-4-2(a)(1), and therefore, any subsequent hearing would be governed by IC 4-21.5-4-4. In other words, if 71 IAC 10-2-3(a) is an accurate representation of the IHRC's statutory responsibilities, which we believe it is, then 71 IAC 10-2-3(c) should not exist.
What IC 4-21.5-4-4 promises is an evidentiary hearing “as quickly as is practical" with an administrative law judge having the ability to determine one of five potential outcomes; the judges' or stewards' decision is either “voided, terminated, modified, stayed, or continued.” We feel the language in 71 IAC 10-2-3(c) directly contradicts 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.
Thank you for your consideration of this matter.
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chair Schaefer
Commissioner Grimes
Commissioner Barclay
Commissioner Schenkel"
The file mentioned in this email "IC 4-21.5-4 Special Proceedings; Emergency and Other Temporary Orders" can be found at http://freepdfhosting.com/503b9c513b.pdf
Sunday, March 24, 2013
Friday, March 1, 2013
Administrative Rule of the Month - Rulings By Judges or Stewards
This month's Indiana Breeder & Owner Protection, Inc. (IBOP) Administrative Rule of the Month takes a look at '71 IAC 10-2-7 Ruling'
from the "Due Process and Disciplinary Action" of the Indiana Horse Racing Commission's (IHRC) administrative rulebook. This particular administrative rule is specific to only disciplinary actions handed down by judges and stewards. The entire administrative rule is copied below; however, our focus will be on 71 IAC 10-2-7(f) which simply states, "The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the violation under IC 4-31-13-2(b)." In other words, the stewards and judges can issue suspensions and fines only if the penaly is issued within the sixty days immediately following a violation.
For example, if we assume a violation date of June 1st, the judges and stewards would then have until July 31st to issue their fine or suspension. We can only presume that the legislature's intent was to make sure that a licensee's right to appropriate due process was respected. With that said, the large majority of suspensions and fines issued by the judges and stewards are fairly routine; whip infractions, careless riding, late to the salix barn or paddock, etc. and can be handled within days of a rule violation. We use the analogy of a traffic court issuing minor violations. While the language in 71 IAC 10-2-7(f) seems fairly clear, judges and stewards do, however, issue fines and suspensions outside of the state-mandated sixty day window. IBOP pointed this out to the IHRC at their February 22, 2013, meeting while they were reviewing the 'Ruling Log' from October 1, 2012 through January 31, 2013, which was met with an underwhelming concern.
71 IAC 10-2-7 Ruling
Authority: IC 4-31-3-9
Affected: IC 4-21.5-3-1; IC 4-31-13-2
Sec. 7. (a) The issues at a disciplinary hearing shall be decided by a majority vote of the judges. If the vote is not unanimous, the dissenting judge shall include with the record of the hearing a written statement of the reasons for the dissent.
(b) A ruling by the judges must be on a form prescribed by the commission and include the following:
(1) The full name, Social Security number (optional), date of birth, last record address, license type, and license number of the person who is the subject of the hearing.
(2) A statement of the charges against the person, including a reference to the specific section of the Act or rules of the commission that the licensee is found to have violated.
(3) The date of the hearing and the date the ruling was issued.
(4) The penalty imposed.
(5) If there was a settlement, the settlement that was agreed to.
(6) Any changes in the order of finish or purse distribution.
(7) A statement of the available procedures and time limit for appealing the ruling to the commission.
(8) Other information required by the commission.
(c) A ruling must be signed by a majority of the judges.
(d) If possible, the judges or their designee shall hand deliver a copy of the ruling to the person who is the subject of the ruling.
If hand delivery is not possible, the judges shall mail the ruling to the person's last known address, as found in the commission's
licensing files, by regular mail. If the identity, address, or existence of a person is not ascertainable, service shall be made by a single publication in a newspaper of general circulation under IC 4-21.5-3-1. If the ruling includes the disqualification of a horse, the judges shall provide a copy of the ruling to the owner of the horse in the manner provided by this subsection.
(e) At the time the judges inform a person who is the subject of the proceeding of the ruling, the judges shall inform the person
of the person's right to appeal the ruling to the commission.
(f) The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the
violation under IC 4-31-13-2(b).
(g) All fines imposed by the judges shall be paid to the commission in accordance with 71 IAC 7-5-3. (Indiana Horse Racing
Commission; 71 IAC 10-2-7; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1199; emergency rule filed Jan 27, 1995, 3:30
p.m.: 18 IR 1506; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2164; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899;
readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
For a little more background, 71 IAC 10-2-7(f) copies, almost word-for-word and refers directly to, the language in Indiana statute in IC 4-31-13-2(b) which is from the chapter entitled "Offenses and Enforcement." That portion of Indiana Code is copied below:
IC 4-31-13-2
Disciplinary hearings; suspension of license; limitation of actions; appeal
Sec. 2. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings under the jurisdiction of the commission the power to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates this article or the rules or orders of the commission:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) 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.
(3) Suspension of a license held by the licensee for not more than sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges at a racing meeting must concur in a suspension or civil penalty.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days after the date of the violation.
(c) A suspension or civil penalty under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.44; P.L.50-1995, SEC.11.
What 71 IAC 10-2-7(f) in the IHRC rulebook fails to recognize, either purposely or inadvertently, is that IC 4-31-12-15(b) from the chapter of the law entitled "Medication of Race Horses" has the same sixty day requirement for the stewards to hand out suspensions and fines for medication violations. IC 4-31-12-15(b) also states, "The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation." In other words, medication violations have to be wrapped up by the judges and stewards within sixty days too, but they don't always do so. Indiana's law regarding 'Sanctions imposed by stewards and judges' for medication violations is copied below:
IC 4-31-12-15
Sanctions imposed by stewards and judges
Sec. 15. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings the authority to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates sections 2 through 13 of this chapter:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) A temporary order or other immediate action in the nature of a summary suspension where a licensee's actions constitute an immediate danger to the public health, safety, or welfare.
(3) Suspension of a license held by the licensee for up to sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges must concur in a sanction.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation.
(c) A sanction under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.39; P.L.50-1995, SEC.9.
Based upon the IHRC's own Ruling Log, the definition of 'violation date' for medication violations is the date a specimen was taken from the horse in question. In other words, if a post-race specimen taken on June 1st was found to be positive for either a prohibited substance or an overage of a permitted substance, a fine or suspension coming from either the judges or stewards would have to be issued by July 31st. During that sixty days, which is again required by Indiana law but not included in the IHRC's rulebook, primary test results would have to be processed and received, any split sample testing would have to be completed, a hearing (unless waived) would have to take place, and any penalty imposed. If the judges and stewards cannot meet this sixty day requirement, then they have no statutory authority to issue a fine or a suspension, unless a licensee somehow waives their right to that sixty day time frame. (An attorney could even argue, based upon the definition of "imposition," that even an appeal of a fine or suspension from the judges or stewards would have to take place in the sixty day window as well.)
While we don't expect to see a statement from the IHRC regarding their apparent lack of adherence to state law, we do want to make sure horsemen are aware of the requirements placed on the IHRC by state law. We all have the right to a 'speedy trial' as guaranteed by the Sixth Amendment to our constitution and the state-imposed sixty days is the equivalent for horsemen. In addition, in a scenario where a purse would be redistributed due to disqualification, other horsemen can benefit with adherence to the sixty days, especially where condition eligibility or stakes eligibility of their horses are concerned.
To review the IHRC's Ruling Log from October 1, 2012, to January 31, 2013, please follow this link: http://freepdfhosting.com/f7fb8051e1.pdf. To view this file in a landscape format, you may have to select 'View' from your pdf reader tool bar, then click 'Rotate View', and then click 'Counterclockwise.' Please note: The Violation Date for Ruling Number 12727 on page 3, which is a perfect example of the lack of adherence to the sixty day window, was reported in this log as October 13, 2012, when in fact the first Violation Date was August 7, 2012. If you'd like a copy of the steward's ruling for verification purposes, please contact us at ibopindy@aol.com.
from the "Due Process and Disciplinary Action" of the Indiana Horse Racing Commission's (IHRC) administrative rulebook. This particular administrative rule is specific to only disciplinary actions handed down by judges and stewards. The entire administrative rule is copied below; however, our focus will be on 71 IAC 10-2-7(f) which simply states, "The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the violation under IC 4-31-13-2(b)." In other words, the stewards and judges can issue suspensions and fines only if the penaly is issued within the sixty days immediately following a violation.
For example, if we assume a violation date of June 1st, the judges and stewards would then have until July 31st to issue their fine or suspension. We can only presume that the legislature's intent was to make sure that a licensee's right to appropriate due process was respected. With that said, the large majority of suspensions and fines issued by the judges and stewards are fairly routine; whip infractions, careless riding, late to the salix barn or paddock, etc. and can be handled within days of a rule violation. We use the analogy of a traffic court issuing minor violations. While the language in 71 IAC 10-2-7(f) seems fairly clear, judges and stewards do, however, issue fines and suspensions outside of the state-mandated sixty day window. IBOP pointed this out to the IHRC at their February 22, 2013, meeting while they were reviewing the 'Ruling Log' from October 1, 2012 through January 31, 2013, which was met with an underwhelming concern.
71 IAC 10-2-7 Ruling
Authority: IC 4-31-3-9
Affected: IC 4-21.5-3-1; IC 4-31-13-2
Sec. 7. (a) The issues at a disciplinary hearing shall be decided by a majority vote of the judges. If the vote is not unanimous, the dissenting judge shall include with the record of the hearing a written statement of the reasons for the dissent.
(b) A ruling by the judges must be on a form prescribed by the commission and include the following:
(1) The full name, Social Security number (optional), date of birth, last record address, license type, and license number of the person who is the subject of the hearing.
(2) A statement of the charges against the person, including a reference to the specific section of the Act or rules of the commission that the licensee is found to have violated.
(3) The date of the hearing and the date the ruling was issued.
(4) The penalty imposed.
(5) If there was a settlement, the settlement that was agreed to.
(6) Any changes in the order of finish or purse distribution.
(7) A statement of the available procedures and time limit for appealing the ruling to the commission.
(8) Other information required by the commission.
(c) A ruling must be signed by a majority of the judges.
(d) If possible, the judges or their designee shall hand deliver a copy of the ruling to the person who is the subject of the ruling.
If hand delivery is not possible, the judges shall mail the ruling to the person's last known address, as found in the commission's
licensing files, by regular mail. If the identity, address, or existence of a person is not ascertainable, service shall be made by a single publication in a newspaper of general circulation under IC 4-21.5-3-1. If the ruling includes the disqualification of a horse, the judges shall provide a copy of the ruling to the owner of the horse in the manner provided by this subsection.
(e) At the time the judges inform a person who is the subject of the proceeding of the ruling, the judges shall inform the person
of the person's right to appeal the ruling to the commission.
(f) The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the
violation under IC 4-31-13-2(b).
(g) All fines imposed by the judges shall be paid to the commission in accordance with 71 IAC 7-5-3. (Indiana Horse Racing
Commission; 71 IAC 10-2-7; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1199; emergency rule filed Jan 27, 1995, 3:30
p.m.: 18 IR 1506; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2164; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899;
readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
For a little more background, 71 IAC 10-2-7(f) copies, almost word-for-word and refers directly to, the language in Indiana statute in IC 4-31-13-2(b) which is from the chapter entitled "Offenses and Enforcement." That portion of Indiana Code is copied below:
IC 4-31-13-2
Disciplinary hearings; suspension of license; limitation of actions; appeal
Sec. 2. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings under the jurisdiction of the commission the power to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates this article or the rules or orders of the commission:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) 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.
(3) Suspension of a license held by the licensee for not more than sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges at a racing meeting must concur in a suspension or civil penalty.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days after the date of the violation.
(c) A suspension or civil penalty under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.44; P.L.50-1995, SEC.11.
What 71 IAC 10-2-7(f) in the IHRC rulebook fails to recognize, either purposely or inadvertently, is that IC 4-31-12-15(b) from the chapter of the law entitled "Medication of Race Horses" has the same sixty day requirement for the stewards to hand out suspensions and fines for medication violations. IC 4-31-12-15(b) also states, "The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation." In other words, medication violations have to be wrapped up by the judges and stewards within sixty days too, but they don't always do so. Indiana's law regarding 'Sanctions imposed by stewards and judges' for medication violations is copied below:
IC 4-31-12-15
Sanctions imposed by stewards and judges
Sec. 15. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings the authority to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates sections 2 through 13 of this chapter:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) A temporary order or other immediate action in the nature of a summary suspension where a licensee's actions constitute an immediate danger to the public health, safety, or welfare.
(3) Suspension of a license held by the licensee for up to sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges must concur in a sanction.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation.
(c) A sanction under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.39; P.L.50-1995, SEC.9.
Based upon the IHRC's own Ruling Log, the definition of 'violation date' for medication violations is the date a specimen was taken from the horse in question. In other words, if a post-race specimen taken on June 1st was found to be positive for either a prohibited substance or an overage of a permitted substance, a fine or suspension coming from either the judges or stewards would have to be issued by July 31st. During that sixty days, which is again required by Indiana law but not included in the IHRC's rulebook, primary test results would have to be processed and received, any split sample testing would have to be completed, a hearing (unless waived) would have to take place, and any penalty imposed. If the judges and stewards cannot meet this sixty day requirement, then they have no statutory authority to issue a fine or a suspension, unless a licensee somehow waives their right to that sixty day time frame. (An attorney could even argue, based upon the definition of "imposition," that even an appeal of a fine or suspension from the judges or stewards would have to take place in the sixty day window as well.)
While we don't expect to see a statement from the IHRC regarding their apparent lack of adherence to state law, we do want to make sure horsemen are aware of the requirements placed on the IHRC by state law. We all have the right to a 'speedy trial' as guaranteed by the Sixth Amendment to our constitution and the state-imposed sixty days is the equivalent for horsemen. In addition, in a scenario where a purse would be redistributed due to disqualification, other horsemen can benefit with adherence to the sixty days, especially where condition eligibility or stakes eligibility of their horses are concerned.
To review the IHRC's Ruling Log from October 1, 2012, to January 31, 2013, please follow this link: http://freepdfhosting.com/f7fb8051e1.pdf. To view this file in a landscape format, you may have to select 'View' from your pdf reader tool bar, then click 'Rotate View', and then click 'Counterclockwise.' Please note: The Violation Date for Ruling Number 12727 on page 3, which is a perfect example of the lack of adherence to the sixty day window, was reported in this log as October 13, 2012, when in fact the first Violation Date was August 7, 2012. If you'd like a copy of the steward's ruling for verification purposes, please contact us at ibopindy@aol.com.
Sunday, February 24, 2013
IHRC's Administrative Law Judge - You Be The Judge
On February 15th, Indiana Breeder & Owner Protection, Inc. (IBOP) expressed our outrage (and filed multiple public records requests) to Indiana Horse Racing Commission (IHRC) Chairman Bill Diener and General Counsel Lea Ellingwood regarding one of the administrative law judges (ALJ) under contract with the IHRC. We voiced our outrage that ALJ Kathryn (Janeway) Hostetter, who had been arrested twice in 2012 for operating a vehicle while intoxicated, was still in a position to pass judgment on horseman through the IHRC's adjudication process. On February 22nd, The Blood-Horse picked up this story which can be read at the following link:
http://www.bloodhorse.com/horse-racing/articles/76418/ihrc-cuts-ties-with-administrative-judge
This particular article will expand on a few facts included in the Blood-Horse article, challenge some of the statements made by the IHRC's General Counsel, raise a few issues not covered in the Blood-Horse article and provide documentation so you can judge for yourself. The documents and links provided in this article are all available as public records.
According to the Chronological Case Summary, https://mycase.in.gov with a case number of 32D02-1202-CM-000156 under Criminal & Citation Case Records, Mrs. Hostetter was arrested on Wednesday, February 8, 2012, with charges of operating a vehicle while intoxicated endangering a person, following too closely, and speeding in a school zone. The latter two charges were dismissed as part of a plea agreement on February 24, 2012 which included a judgment of a conviction on the charge of operating a vehicle while intoxicated endangering a person, which is a Class A misdemeanor. In Indiana, operating a vehicle while intoxicated is a Class C misdemeanor which is a lesser offense than the Class A misdemeanor.
Mrs. Hostetter was sentenced to 365 days of confinement and given two days of jail credit and 363 days suspended which required her to be on probation. In addition, the plea agreement required a substance abuse evaluation and treatment plan through IU Health Methodist Hospital, 20 hours of community service, a 30-day suspended license followed by 180 days of a restricted license, and an order to attend a Survivor's Speak Out Program.
As you will see from The Blood-Horse article, Mrs. Hostetter was also employed as a Deputy Prosector for Hendricks County (Ind.). IBOP filed a public records request with the human resources department for Hendricks County for verification of Mrs. Hostetter's employment dates. Follow this link to the file we received from Hendricks County Human Resources Director Ronald Love: http://freepdfhosting.com/35d16ae599.pdf What you will see is that Mrs. Hostetter, Janeway at the time, was first employed as a Deputy Prosecutor with Hendricks County on January 16, 2007 at a salary of $43,000. What you will also see is that Mrs. Hostetter was terminated from her position effective on February 8, 2012 which was the date of her first arrest. She is also indicated as not being subject to rehire. At the time of her termination, she was earning a salary of $58,711. While she was immediately terminated from her role as a deputy prosecutor for a govermental agency, the question we are raising is should the IHRC, another governmental agency, have also immediately terminated her contract as an ALJ? Because of her conviction Mrs. Hostetter was facing her own administrative proceeding that could have had an affect on her ability to practice law in Indiana, but you be the judge.
On January 28, 2013, Mrs. (Janeway) Hostetter was disciplined for her first offense by the Indiana Supreme Court in the form of a public reprimand. The order from the Indiana Supreme Court can be found at the following link: http://www.in.gov/judiciary/files/order-discipline-2013-32S00-1207-DI-421.pdf What you will see is that Mrs. Hostetter agreed to violating Indiana Professional Conduct Rule 8.4(d), which prohibits lawyers from engaging in conduct prejudicial to the administration of justice. This admitted violation was pointed out in the Blood-Horse article; however, let's examine the phrase "prejudicial to the administration of justice."
As an ALJ for the IHRC, Mrs. Hostetter was contracted as part of what the IHRC believes is the administration of justice where administrative proceedings are concerned. When we consulted Bing Dictionary, the first definition of prejudicial is "resulting in harm: causing disadvantage or harm to somebody or something." In this case then, Mrs. Hostetter admitted to causing disadvantage or harm to the administration of justice. With her admission, did the disadvantage or the harm begin when she was arrested on February 8, 2012 or with the Indiana Supreme Court's reprimand on January 28, 2013? You be the judge.
As noted in The Blood-Horse article, Mrs. Hostetter was once again arrested on December 3, 2012. The Chronological Case Summary,
https://mycase.in.gov with a case number of 32D02-1302-FD-000123 under Criminal & Citation Case Records, indicates that Mrs. Hostetter was arrested for operating a vehicle while intoxicated endangering a person which due to her prior conviction is now a Class D felony. She was also charged with having a blood alcohol content of .15% or greater (the legal limit in Indiana is .08%), following too closely, and traveling at an unreasonable speed for the conditions. Mrs. Hostetter's initial hearing on these charges is scheduled for March 22, 2013. As with anyone, Mrs. Hostetter should be assumed to be innocent until proven otherwise. IBOP was founded on the concept of the protection of rights, and Mrs. Hostetter is entitled to the very same presumption. With her second arrest, an initial hearing on a possible probation violation was scheduled for February 22, 2013, and that hearing was continued with no date scheduled at this time.
You can infer from The Blood-Horse article that the IHRC knew about Mrs. Hostetter's conviction. IBOP has filed public records requests for correspondence between the IHRC staff, the Attorney General's Office, and each individual commissioner in this matter. The goal is to determine who knew what and when, in an effort to provide transparency on why Mrs. Hostetter wasn't immediately terminated. According to state law 'IC 4-21.5-3-10 Disqualification of administrative law judge' through "Sec. 10. (a) Any individual serving or designated to serve alone or with others as an administrative law judge is subject to disqualification for: (1)....(4) any cause for which a judge of a court may be disqualified." In short, judges are supposed to follow the law and an arrest and conviction would be grounds to have a judge removed. But, you be the judge.
After IBOP informed the IHRC of Mrs. Hostetter's second arrest, we were told by Chairman Bill Diener that he instructed the IHRC staff to report this information to the Indiana Supreme Court Disciplinary Commission. While Mrs. Hostetter self-reported her first arrest and conviction to the both the IHRC and the Indiana Supreme Court Disciplinary Commission, she did not self-report her second arrest to either as required. Does a failure to comply with a professional, ethical, and contractual obligation expose a person's character? Again, you be the judge.
While not a direct quote from Ms. Ellingwood, The Blood-Horse article suggests that since no criminal matters were pending when Mrs. Hostetter's contract came up for renewal, which was on June 30, 2012, that the IHRC had no issue with renewing her contract. Our view is that every day a person wakes up while on probation, there is a pending legal issue until the probation expires. Would a licensee, under IHRC probation, not have to report the probation as a pending matter with any other racing jurisdiction when applying for a license? The article also suggests that "no questions were raised about Hostetter's ability to do her job or complaints about her performance throughout 2012." We see that reported statement, if accurate, as being abolutely false.
Mrs. Hostetter's most high profile case was sitting in judgment of Janey Adams, an owner-trainer accused of mistreating a horse. Ms. Adams was summarily suspended by the IHRC in July, 2011, with a recommended penalty of a 10-year license suspension. Ms. Adams appealed the suspension and Mrs. Hostetter assigned as the ALJ. Ms. Adams requested a stay from the suspension while her appeal was being adjudicated. That motion for a stay was denied by Mrs. Hostetter. On June 23, 2012, the third day of Ms. Adams hearing in front of Mrs. Hostetter, IHRC attorney Robin Babbitt asked to read from the stay petition. Mrs. Hostetter responded, "Sure. Can you remind me, was the stay granted or denied?" (Page 591, Lines 17 through 18 of the offical transcript) While she was the one who denied the stay, after months of being the ALJ and three days of hearings, she had to be reminded of her own actions. This fact was pointed out to the IHRC in IBOP's communication regarding Mrs. Hostetter's second arrest. We were directly commenting on her performance as an ALJ.
Also, Michael Red, who represented Ms. Adams, questioned Mrs. Hostetter's preformance as an ALJ directly in front of the IHRC on August 30, 2012. Once an ALJ authors an opinion on a matter, the IHRC holds a hearing to consider the opinion. Mr. Red delivered multiple complaints about Mrs. Hostetter as an ALJ. With the 'judge for yourself' theme, this link will take you to pages 11 through 16 of the official transcript of the August 30, 2012 hearing: http://freepdfhosting.com/a4062715a3.pdf. What you'll see is Mr. Red raises significant questions about Mrs. Hostetter's ability to do her job. In addition, the result of the August 30th hearing was that the IHRC remanded Mrs. Hostetter's opinion, meaning the opinion was sent back to her, with instructions that pointed out that she hadn't done her job correctly. So, the IHRC even had issues with Mrs. Hostetter's performance as an ALJ. The relevant pages from the transcript regarding the remand decision can be found at the following link: http://freepdfhosting.com/baee1ad912.pdf
We also take issue with a quote from Ms. Ellingwood in The Blood-Horse article with her saying, "We have a very active commission that carefully vets all cases sent along for review." That is hardy the case. At the beginning of page 13 of the above mentioned transcript, one of the commissioners actually interrupted Mr. Red to ask if the horse in question was a race horse. A commissioner who would have 'vetted' a case (or even cared to read the case) where a person's livlihood is possibly at risk would never have asked such a ignorant question.
While this article is not intended to delve into Ms. Adams case, it does serve as an example of Mrs. Hostetter's sutiability as an ALJ. However, we've found an even more potentially egregious issue, and we stress potentially, as it relates to Mrs. Hostetter and her contract renewal with the IHRC. Mrs. Hostetter's contract, which paid her $175 per hour, expired on June 30, 2012. The same terms applied to her new two-year contract which can be found at the following link: https://fs85.gmis.in.gov/IDOAcontracts/public/66209-000.pdf. As you will see, the Executive Document Summary indicates a "Date Prepared" of August 15, 2012 which is six weeks after her prior contract's expiration. Mrs. Hostetter's signature was applied to the contract on August 16, 2012. In between the one contract's expiration on June 30, 2012, and August 15, 2012, Mrs. Hostetter delivered her opinion on Ms. Adams to the IHRC.
The apperance of impropriety of Mrs. Hostetter first delivering her opinion in support of a 10-year suspension for Ms. Adams, which was issued on July 23, 2012, then signing a new contract has significance, especially considering that IHRC Executive Director signed the contract on behalf of the IHRC with a date of Sunday, July 1, 2012. We've pointed this peculiarity out to Chairman Diener. We've received no explanation, but you be the judge.
http://www.bloodhorse.com/horse-racing/articles/76418/ihrc-cuts-ties-with-administrative-judge
This particular article will expand on a few facts included in the Blood-Horse article, challenge some of the statements made by the IHRC's General Counsel, raise a few issues not covered in the Blood-Horse article and provide documentation so you can judge for yourself. The documents and links provided in this article are all available as public records.
According to the Chronological Case Summary, https://mycase.in.gov with a case number of 32D02-1202-CM-000156 under Criminal & Citation Case Records, Mrs. Hostetter was arrested on Wednesday, February 8, 2012, with charges of operating a vehicle while intoxicated endangering a person, following too closely, and speeding in a school zone. The latter two charges were dismissed as part of a plea agreement on February 24, 2012 which included a judgment of a conviction on the charge of operating a vehicle while intoxicated endangering a person, which is a Class A misdemeanor. In Indiana, operating a vehicle while intoxicated is a Class C misdemeanor which is a lesser offense than the Class A misdemeanor.
Mrs. Hostetter was sentenced to 365 days of confinement and given two days of jail credit and 363 days suspended which required her to be on probation. In addition, the plea agreement required a substance abuse evaluation and treatment plan through IU Health Methodist Hospital, 20 hours of community service, a 30-day suspended license followed by 180 days of a restricted license, and an order to attend a Survivor's Speak Out Program.
As you will see from The Blood-Horse article, Mrs. Hostetter was also employed as a Deputy Prosector for Hendricks County (Ind.). IBOP filed a public records request with the human resources department for Hendricks County for verification of Mrs. Hostetter's employment dates. Follow this link to the file we received from Hendricks County Human Resources Director Ronald Love: http://freepdfhosting.com/35d16ae599.pdf What you will see is that Mrs. Hostetter, Janeway at the time, was first employed as a Deputy Prosecutor with Hendricks County on January 16, 2007 at a salary of $43,000. What you will also see is that Mrs. Hostetter was terminated from her position effective on February 8, 2012 which was the date of her first arrest. She is also indicated as not being subject to rehire. At the time of her termination, she was earning a salary of $58,711. While she was immediately terminated from her role as a deputy prosecutor for a govermental agency, the question we are raising is should the IHRC, another governmental agency, have also immediately terminated her contract as an ALJ? Because of her conviction Mrs. Hostetter was facing her own administrative proceeding that could have had an affect on her ability to practice law in Indiana, but you be the judge.
On January 28, 2013, Mrs. (Janeway) Hostetter was disciplined for her first offense by the Indiana Supreme Court in the form of a public reprimand. The order from the Indiana Supreme Court can be found at the following link: http://www.in.gov/judiciary/files/order-discipline-2013-32S00-1207-DI-421.pdf What you will see is that Mrs. Hostetter agreed to violating Indiana Professional Conduct Rule 8.4(d), which prohibits lawyers from engaging in conduct prejudicial to the administration of justice. This admitted violation was pointed out in the Blood-Horse article; however, let's examine the phrase "prejudicial to the administration of justice."
As an ALJ for the IHRC, Mrs. Hostetter was contracted as part of what the IHRC believes is the administration of justice where administrative proceedings are concerned. When we consulted Bing Dictionary, the first definition of prejudicial is "resulting in harm: causing disadvantage or harm to somebody or something." In this case then, Mrs. Hostetter admitted to causing disadvantage or harm to the administration of justice. With her admission, did the disadvantage or the harm begin when she was arrested on February 8, 2012 or with the Indiana Supreme Court's reprimand on January 28, 2013? You be the judge.
As noted in The Blood-Horse article, Mrs. Hostetter was once again arrested on December 3, 2012. The Chronological Case Summary,
https://mycase.in.gov with a case number of 32D02-1302-FD-000123 under Criminal & Citation Case Records, indicates that Mrs. Hostetter was arrested for operating a vehicle while intoxicated endangering a person which due to her prior conviction is now a Class D felony. She was also charged with having a blood alcohol content of .15% or greater (the legal limit in Indiana is .08%), following too closely, and traveling at an unreasonable speed for the conditions. Mrs. Hostetter's initial hearing on these charges is scheduled for March 22, 2013. As with anyone, Mrs. Hostetter should be assumed to be innocent until proven otherwise. IBOP was founded on the concept of the protection of rights, and Mrs. Hostetter is entitled to the very same presumption. With her second arrest, an initial hearing on a possible probation violation was scheduled for February 22, 2013, and that hearing was continued with no date scheduled at this time.
You can infer from The Blood-Horse article that the IHRC knew about Mrs. Hostetter's conviction. IBOP has filed public records requests for correspondence between the IHRC staff, the Attorney General's Office, and each individual commissioner in this matter. The goal is to determine who knew what and when, in an effort to provide transparency on why Mrs. Hostetter wasn't immediately terminated. According to state law 'IC 4-21.5-3-10 Disqualification of administrative law judge' through "Sec. 10. (a) Any individual serving or designated to serve alone or with others as an administrative law judge is subject to disqualification for: (1)....(4) any cause for which a judge of a court may be disqualified." In short, judges are supposed to follow the law and an arrest and conviction would be grounds to have a judge removed. But, you be the judge.
After IBOP informed the IHRC of Mrs. Hostetter's second arrest, we were told by Chairman Bill Diener that he instructed the IHRC staff to report this information to the Indiana Supreme Court Disciplinary Commission. While Mrs. Hostetter self-reported her first arrest and conviction to the both the IHRC and the Indiana Supreme Court Disciplinary Commission, she did not self-report her second arrest to either as required. Does a failure to comply with a professional, ethical, and contractual obligation expose a person's character? Again, you be the judge.
While not a direct quote from Ms. Ellingwood, The Blood-Horse article suggests that since no criminal matters were pending when Mrs. Hostetter's contract came up for renewal, which was on June 30, 2012, that the IHRC had no issue with renewing her contract. Our view is that every day a person wakes up while on probation, there is a pending legal issue until the probation expires. Would a licensee, under IHRC probation, not have to report the probation as a pending matter with any other racing jurisdiction when applying for a license? The article also suggests that "no questions were raised about Hostetter's ability to do her job or complaints about her performance throughout 2012." We see that reported statement, if accurate, as being abolutely false.
Mrs. Hostetter's most high profile case was sitting in judgment of Janey Adams, an owner-trainer accused of mistreating a horse. Ms. Adams was summarily suspended by the IHRC in July, 2011, with a recommended penalty of a 10-year license suspension. Ms. Adams appealed the suspension and Mrs. Hostetter assigned as the ALJ. Ms. Adams requested a stay from the suspension while her appeal was being adjudicated. That motion for a stay was denied by Mrs. Hostetter. On June 23, 2012, the third day of Ms. Adams hearing in front of Mrs. Hostetter, IHRC attorney Robin Babbitt asked to read from the stay petition. Mrs. Hostetter responded, "Sure. Can you remind me, was the stay granted or denied?" (Page 591, Lines 17 through 18 of the offical transcript) While she was the one who denied the stay, after months of being the ALJ and three days of hearings, she had to be reminded of her own actions. This fact was pointed out to the IHRC in IBOP's communication regarding Mrs. Hostetter's second arrest. We were directly commenting on her performance as an ALJ.
Also, Michael Red, who represented Ms. Adams, questioned Mrs. Hostetter's preformance as an ALJ directly in front of the IHRC on August 30, 2012. Once an ALJ authors an opinion on a matter, the IHRC holds a hearing to consider the opinion. Mr. Red delivered multiple complaints about Mrs. Hostetter as an ALJ. With the 'judge for yourself' theme, this link will take you to pages 11 through 16 of the official transcript of the August 30, 2012 hearing: http://freepdfhosting.com/a4062715a3.pdf. What you'll see is Mr. Red raises significant questions about Mrs. Hostetter's ability to do her job. In addition, the result of the August 30th hearing was that the IHRC remanded Mrs. Hostetter's opinion, meaning the opinion was sent back to her, with instructions that pointed out that she hadn't done her job correctly. So, the IHRC even had issues with Mrs. Hostetter's performance as an ALJ. The relevant pages from the transcript regarding the remand decision can be found at the following link: http://freepdfhosting.com/baee1ad912.pdf
We also take issue with a quote from Ms. Ellingwood in The Blood-Horse article with her saying, "We have a very active commission that carefully vets all cases sent along for review." That is hardy the case. At the beginning of page 13 of the above mentioned transcript, one of the commissioners actually interrupted Mr. Red to ask if the horse in question was a race horse. A commissioner who would have 'vetted' a case (or even cared to read the case) where a person's livlihood is possibly at risk would never have asked such a ignorant question.
While this article is not intended to delve into Ms. Adams case, it does serve as an example of Mrs. Hostetter's sutiability as an ALJ. However, we've found an even more potentially egregious issue, and we stress potentially, as it relates to Mrs. Hostetter and her contract renewal with the IHRC. Mrs. Hostetter's contract, which paid her $175 per hour, expired on June 30, 2012. The same terms applied to her new two-year contract which can be found at the following link: https://fs85.gmis.in.gov/IDOAcontracts/public/66209-000.pdf. As you will see, the Executive Document Summary indicates a "Date Prepared" of August 15, 2012 which is six weeks after her prior contract's expiration. Mrs. Hostetter's signature was applied to the contract on August 16, 2012. In between the one contract's expiration on June 30, 2012, and August 15, 2012, Mrs. Hostetter delivered her opinion on Ms. Adams to the IHRC.
The apperance of impropriety of Mrs. Hostetter first delivering her opinion in support of a 10-year suspension for Ms. Adams, which was issued on July 23, 2012, then signing a new contract has significance, especially considering that IHRC Executive Director signed the contract on behalf of the IHRC with a date of Sunday, July 1, 2012. We've pointed this peculiarity out to Chairman Diener. We've received no explanation, but you be the judge.
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