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Indiana's tax judge to retire

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When comparing his past two jobs, Judge Thomas G. Fisher admits that he finds stories from his prosecutor days more interesting than those in the past quarter century when he’s presided over the state’s appellate tax court.

Anyone listening at a cocktail might agree, the veteran judge said with a laugh.

But that story-telling excitement – or lack of one as he sees it - can’t diminish the fact that Judge Fisher has made history on the bench. He is the first and only person to serve on the appellate tax court since it’s creation in 1986, and he’s been a pivotal force in reshaping Indiana’s tax laws.

But after 24 years, he’s decided it’s time to hang up his robe. Judge Fisher announced Aug. 12 that he’ll retire at the end of the year, meaning the state will have to find a new appellate judge to preside over that unique court that is the only one in the state to have both a trial and appellate function.

Though Judge Fisher won retention in 2008, the 70-year-old judge is approaching the mandatory retirement age of 75 and he said this was the best time to move on.

“There was not any one thing,” he said. “It’s just an intangible feeling that makes you decide to go on to other things in life. I’m not so vain to think litigants can’t do better than me in getting a freshness for the court with fresh ideas and thinking.”

Fisher Judge Thomas G. Fisher

Judge Fisher was appointed July 1, 1986, by then-Gov. Robert Orr. Prior to that time, tax cases were heard at the Circuit or Superior level in either the county where the property was located or where a resident lived.

Before taking the bench, the Michigan native – who graduated in 1965 from what is now Indiana University Maurer School of Law – Bloomington – worked in private practice for a couple years with offices in Rensselaer and Remington. Gov. Roger Branigin in 1967 appointed him to be Jasper County prosecutor, a position that Fisher would hold for nearly two decades.

He’d chaired the Indiana Prosecuting Attorneys Council and received the Eugene “Shine” Feller award. Aside from prosecutor, Fisher also served as attorney for the towns of Demotte and Remington and counsel for the Jasper County Economic Development Commission.

But when lawmakers decided to establish a state-level tax court, they looked to the longtime prosecutor to be the sole judge.

Greenwood attorney Bill Barrett at law firm Williams Barrett & Wilkowski said the state had a “patchwork” of taxation caselaw before that, and leaders wanted to provide one cohesive voice and path for tax cases to take.

“He’s taken very seriously that obligation as the sole pathfinder, laying out caselaw to serve as a guide for counsel and taxpayers in every area of tax law,” said Barrett, who clerked for Judge Fisher in the earl ’90s. “As the first judge, not only did he have to plow new ground, but there also wasn’t anyone in the wings when he was going through that process because we didn’t have someone who had a career directly and solely on that path.”

During the judge’s Tax Court tenure, the Indiana Supreme Court reported he’s decided about 800 cases that involve tax issues and whether the government correctly taxed a person or business. Most of the appeals involve decisions by the Indiana Board of Tax Review. The tax court also maintains a small-claims docket for processing refund claims less than $5,000 from the state Department of Revenue and Board of Tax Commissioner-assessed values less than $15,000 for any year. The court also has the ability to hear cases in Allen, Jefferson, Lake, St. Joseph, Vanderburgh, and Vigo counties.

Overall, the judge doesn’t prefer to place any more significance to one case than another. But he does recognize one property case that clearly stands out through the years: State Board of Tax Commissioners v. Town of St. John, 702 N.E.2d 1034 (Ind. 1998), in which the Indiana Supreme Court affirmed Judge Fisher’s ruling from two years earlier in finding the state’s property tax assessment system unconstitutional and resulted in the fair-market value system.

“That’s the biggest case I’ve had and would probably be the signature case of my career,” he said. “The sheer magnitude of it is still being measured in the past several years, as assessors have been trying to comply with regulations put into place in response to St. John.”

However, Judge Fisher is proud of every case he’s handled through the years, like a first impression issue a couple years ago when he ruled a bank didn’t need to have a physical presence in the state to be subject to the Indiana Financial Institutions Tax. That’s a national issue he hopes the U.S. Supreme Court will consider at some point.

“I’ve tried to give citizens a good, consistent body of caselaw,” he said. “That’s important, to have that kind of body of law that offers guidance to both lawyers and the public about what our state tax laws say.”

When he started, Judge Fisher said property-tax cases outweighed other state court tax issues by 2-1, but the judge said that trend has completely reversed. He said one significant change has been that no evidence is debated on property-tax cases now since an administrative record-producing statute went into effect about a decade ago.

“Facts are rarely in dispute before me because the books say what they say,” he said. “The question is how the law applies to those numbers and data.”

Former Tax Court Clerk Martha Wentworth, who clerked in the court for two years and now serves as tax director of the Indiana-based multi-state group of Deloitte Tax, said that Judge Fisher has a national reputation for building a unified body of common taxation law in Indiana. He has upheld the balance of fairness between state tax administration and taxpayer rights, she said.

Indianapolis attorney Mark Richards in Ice Miller’s tax group agreed, saying that his practice beginning in 1985 has coincided with the tax court creation one year later and most of his practice has been before Judge Fisher.

“I wish him the best in his retirement, and he’s earned it, but this is a loss for the state of Indiana,” Richards said. “He’s always been a very fair and no-nonsense judge.”

The judge’s son, Indiana Solicitor General Thomas M. Fisher, said retirement is a big deal for his father, who’s taken so much pride in what he has done. Aside from being a significant influence in establishing state taxation caselaw, Judge Fisher has also had a monumental impact on the younger Fisher’s life in inspiring him to follow in those legal footsteps.

“Every kid thinks their dad is Superman, and I’m no exception,” he said. “Dad has been a pillar in every community he’s lived, and that was so inspirational as a kid, to see that impact on the community where we lived and then on the state as a whole. His professional, deep commitment to the rule of law was been clear to me as a kid, and that’s impacted my views of the world. I think this was a difficult decision and he was hesitant to move on, but that’s a period in life that comes for all of us.”

Though Judge Fisher said he hopes to stay on as a senior judge as needed, he doesn’t have any specific plans for his retirement. One possibility is increasing his involvement in civic activities, such as the Rotary Club that he joined in 1970 and most recently served as district governor for the 45 central Indiana clubs.

The Indiana Judicial Nominating Commission will interview applicants in the coming months for the vacancy, with first interviews Sept. 27 and semi-finalist interviews Oct. 27. An application deadline had not been set by IL deadline, but based on past appellate vacancy application deadlines the applications will likely be due by mid-September. The seven-member commission will choose three names to submit to Gov. Mitch Daniels, who makes the final choice.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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