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Judgment against ex-state lawyer vacated in long-running puppy mill case

June 5, 2017

A former attorney in the Indiana Attorney General’s Office has been relieved of a $15,000 judgment against him for his role in the raid of an alleged puppy mill, the most recent decision in a long-running case stemming from the state’s seizure of roughly 240 dogs.

After the Indiana Department of Revenue and Office of the Indiana Attorney General received information about the alleged puppy mill operating on a dairy farm without collecting sales tax or adequately reporting sales-related income, state officers conducted a raid on the Harrison County farm. Roughly 240 dogs, including several family pets, were seized in a “dramatically staged” raid in June 2009. The dogs were seized after the owners of the farm and dog breeding business, Virginia and Kristen Garwood, said they could not or would not pay the more than $142,000 they owed in assessed liabilities.

Former Indiana Attorney General Greg Zoeller and then-Chief Counsel for Tax Litigation Andrew Swain celebrated the raid and the so-called “Al Capone” approach to taking down illegal puppy mill operations. Specifically, the state officers had issued jeopardy assessments, or “an immediate tax warrant that turns automatically into a tax judgment which is immediately collectible,” prior to the raid.

Both Garwood women pleaded guilty to Class D felony evasion of income tax, while Virginia Garwood also pleaded guilty to Class D felony failure to remit or collect sales tax. Both women had their sentences suspended to probation.

Meanwhile, prior to their guilty pleas, the Garwoods sought judicial review of the jeopardy assessments in the Indiana Tax Court, which held the jeopardy assessments were “void as a matter of law.” Virginia Garwood then sought a tax refund of more than $100,000, and the Tax Court held in January 2015 the DOR had improperly denied that refund on the value of the dogs. However, the Indiana Supreme Court vacated that ruling one year later.

Further, in the instant case of Virginia Garwood and Kristen Garwood v. State of Indiana, et al., 31A01-1603-CT-679, the Garwoods filed a complaint pleading seven claims against 56 defendants. They alleged state-law torts of conversion, defamation and intentional infliction of emotional distress, as well as federal claims of due process violations, unlawful search and seizure, selective enforcement under the equal protection clause and a conspiracy to violate their civil rights.

The defendants included Zoeller, Swain and state and other officials, but only the claim against Swain was successful. A jury entered a $15,000 compensatory verdict against him, and the court awarded the Garwoods’ counsel a total of $89,500. The Garwoods appealed for a new trial against the same defendants, except Swain, while the state cross-appealed, arguing the Harrison Circuit Court had erred in failing to grant Swain either absolute or qualified immunity.

After clarifying the Indiana Court of Appeals, and not the Indiana Tax Court, had jurisdiction to hear the appeal because “neither the jurisdictional value of finality nor that of validity would be served by returning this case to the tax court to decide the constitutional and tort-law consequences of its earlier tax-law holding,” Judge Paul Mathias wrote in a 59-page opinion Monday that the $15,000 judgment against Swain was not supported by sufficient evidence.

The Garwoods failed to show a procedural due process violation for which Swain could have been held personally liable, because the state’s jeopardy assessment scheme has been held constitutional and because the Garwoods received a post-deprivation hearing in the Indiana Tax Court. Further, the Garwoods confused a state law violation with a due process violation when they claimed the tax’s court ruling made it as if the jeopardy assessments “literally never happened,” he wrote.

Additionally, Mathias wrote “The Garwoods’ substantive due process claim fails because Swain’s conduct was rationally related to a legitimate government interest and did not shock the conscience.” Further, the court rejected the Garwoods’ equal protection claim, finding that because they did not identify favorable comparators, the court “cannot review whether ‘there was no rational basis for difference in treatment.’”

Thus, Swain cannot be held personally liable in the case, Mathias said, which means the Garwoods are not a prevailing party, and their lawyers are not entitled to fees. The appellate court, therefore, vacated the award granting their attorneys nearly $90,000 in fees.

Finally, the appellate panel affirmed the decision of the Harrison Circuit Court in all other respects, finding the trial court did not abuse its discretion in relation to charging information, jury instructions, the admission of a court transcript or its decision to decline to give preclusive effect to the tax court’s decision to void the jeopardy assessments.

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