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Property tax assessment prevents township from controlling cemetery

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Because a couple had paid taxes on the land where a cemetery existed since 1967, the township did not have authority under Indiana law to exercise control over that cemetery, the Indiana Court of Appeals affirmed Monday.

George and Zelma Bitzer purchased land in Wabash County in 1967 that contained one acre of land that previous owners Solomon and Nancy Fry deeded in 1872 “to the public” to be used as a cemetery. There is a dispute as to how many people are buried in the Belden Cemetery. The cemetery was not maintained by the township trustee and became overgrown. The cemetery was also mistakenly taxed as part of the Bitzers’ property since they purchased it. The couple cleared the area except for the grave markers of the Frys and placed a fence around it. The township trustee believed the Bitzers desecrated the cemetery, but the county prosecutor declined to prosecute.

The township then filed a complaint seeking to quiet title, establish its interest in preserving the cemetery, and recover damages for the Bitzers’ actions. The trial court granted summary judgment for the couple and denied the township’s motion.

Under I.C. 23-14-68-1, the township does not have authority over the cemetery because the Bitzers paid taxes on the assessed land on which the cemetery sits, the COA ruled.

“The statute authorizing a Township Trustee to exercise control over cemeteries located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there is no genuine issue of material fact with regard to the Bitzers’ payment of property taxes on the land on which the Belden Cemetery is located for decades. For this reason alone, the Township’s claims of authority over the Belden Cemetery must fail,” Judge Paul Mathias wrote in Lagro Township and Karen Pinkerton Tatro v. George E. Bitzer and Zelma E. Bitzer, 85A02-1306-PL-520.

“Although the Township makes an extensive argument that the Bitzers’ actions have desecrated the Belden Cemetery contrary to law, this is a criminal matter left to the discretion of the county prosecutor. As indicated above, to date, the County Prosecutor has declined to file charges against the Bitzers, and the claim of intentional infliction of emotional distress filed against the Bitzers was dismissed.”

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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