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COA affirms trial court dismissal of judicial review but differs on reasoning

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An Allen Superior judge’s determination that the court lacked jurisdiction to hear a zoning issue, thus requiring dismissal, was erroneous, the Indiana Court of Appeals ruled. But the judges affirmed the lower court’s dismissal of the case because of a lack of supporting materials and a late request for a filing deadline extension.

Michael Howard sought judicial review of the Allen County Board of Zoning Appeals decision to grant a use variance allowing property owned by Alvin Schmucker to be used for the operation of a tire business. The men’s properties were near each other.

Howard asked the zoning board to produce a certified record of all materials relevant to its decision, and he had until Sept. 17, 2012, to file the record or seek an extension of the filing deadline. He did neither as of the deadline date, so Schmucker asked for Howard’s request for judicial review to be dismissed. Howard later filed an amended petition asking for the extension. In December, Judge Stanley Levine dismissed Howard’s petition with prejudice, holding the trial court lacked jurisdiction based on his failure to timely file the board record or timely request an extension of the filing deadline.

“Because the timing of filing the board record does not implicate matters of jurisdiction, we conclude that the trial court’s determination was clearly erroneous. But, because we interpret Indiana Code section 36-7-4-1613 to require dismissal where no materials supporting judicial review of the petitioner’s claim are timely filed and an extension of the filing deadline is not timely requested, we affirm the trial court’s judgment,” Judge Cale Bradford wrote in Michael Howard v. Allen County Board of Zoning, Appeals and Alvin Schmucker, 02A04-1301-PL-27.

The judges rejected Howard’s suggestion that under the COA’s April decision in  Lebamoff Enterprises Inc. v. Indiana Alcohol & Tobacco Commission, the trial court’s discretion with regard to untimely filings allows the court to accept a belated record even where an official extension hasn’t been granted. They also rejected his claim under Trial Rule 15 that the relation back doctrine forgives the tardiness of Howard’s second belated extension request. Plus, after a filing deadline has passed, a party is not allowed to amend a petition to cure procedural defects.

 

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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