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
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 ). )
March 12, 2002
Certain Indiana fireworks sellers (Sellers) formulated a plan to use Section 2 to
avoid Section 8s 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.
See footnote 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. (
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. (Appellees Br. at
6-7.) He brought this action under Indianas 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. Assn v. Boatwright, 741 N.E.2d 1262, 1264-65 (Ind. Ct.
App. 2001). We granted transfer. 753 N.E.2d 18 (Ind. 2001).
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. Assn, 741 N.E.2d at 1265;
Ind. Appellate Rule 58(A)(1).
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. (Appellees 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 marshals 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.
(Appellees Pet. to Trans. at 7, 10.)
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
See footnote but declares that to be a substantial step. (Appellees 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
The Fire Marshal seeks a way to solve a longstanding problem without economically
disrupting the fireworks industry. (Appellees 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,See footnote and Boatwright says he fears suits for discriminatory enforcement
and potential civil rights claims if he uses his statutory seizure powers.
(Appellees 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.See footnote
We reverse the judgment of the trial court, and remand for dismissal of