Indiana Court Decisions — Aug. 26-Sept. 8, 2021

7th Circuit Court of Appeals

Sept. 8

Civil Plenary-Abortion/Stay of Injunction

Whole Woman’s Health Alliance, et al. v. Todd Rokita, Attorney General of Indiana, et al.

21-2480, 21-2573

An injunction against several provisions of Indiana law that tighten access to abortions was stayed Sept. 8 by the 7th Circuit Court of Appeals. A dissenting judge, however, blasted the majority’s position and state laws that “piously purport to protect women’s health” while “chip(ping) away” at longstanding abortion precedent.

The battle in Whole Woman’s Health Alliance, et al. v. Todd Rokita, et al., 21-2480 and 21-2573, began in 2018 when Virginia-based Whole Woman’s Health Alliance filed the lawsuit fighting the denial of its license to open an abortion clinic in South Bend. The abortion provider challenged numerous provisions of Indiana abortion law on the grounds that the provisions imposed an undue burden on a woman’s right to obtain an abortion.

The case was whittled down before Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana on Aug. 10 issued an expansive ruling that included wins and losses for both the state and abortion providers. She then denied the state’s request to stay the enforcement of the injunction against five Indiana abortion laws, including:

A physician-only law allowing only physicians to perform or prescribe a medication abortion.

A second-trimester hospitalization requirement restricting the provision of second-trimester abortions to hospitals or ambulatory surgical centers.

An in-person counseling requirement for all preabortion counseling.

A telemedicine ban prohibiting health care providers from using telemedicine to prescribe an abortion-inducing drug.

An in-person examination requirement, requiring physicians to “examine a pregnant woman in person” before providing a medication abortion.

The district court also enjoined laws requiring disclosures about fetal pain, the beginning of life and mental health risks of abortion, and various facilities requirements in 158 pages of findings of fact and conclusions of law.

Barker additionally upheld a dozen provisions of the Indiana abortion code, including laws that allow only physicians to perform first-trimester aspiration abortions and that require an 18-hour delay between the receipt of Indiana’s mandatory disclosures and an abortion procedure.

At the 7th Circuit, Indiana Attorney General Todd Rokita argued the district court misapplied Supreme Court and 7th Circuit precedent in her findings and conclusions, and that her ruling would prevent the state from enforcing laws designed to protect women and fetal health.

In staying Barker’s injunction, the 7th Circuit majority in a per curiam opinion held that, “All of the contested provisions have been in force for years,” so a stay would “preserve the status quo pending appellate resolution.”

“And Indiana has made the ‘strong showing’ on the merits necessary to receive a stay,” the 7th Circuit wrote.

State laws requiring abortions to be performed by physicians have been challenged before and upheld as constitutional by the U.S. Supreme Court, the 7th Circuit wrote. It also noted that laws requiring second-trimester abortions to be performed in a hospital or surgical center also have been challenged and sustained by the Supreme Court.

The validity of a requirement for in-person counseling was also established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881–87 (1992), the 7th Circuit wrote. It noted that decision held that a materially identical informed-consent statute does not create an “undue burden” on access to abortion.

“Plaintiffs contend, and the district court found, that developments in videoconferencing make it possible to dispense with in-person meetings, that improvements in medicine make the use of hospitals or surgical centers unnecessary, and that nurses are competent to approve and monitor medication-induced abortions,” it wrote. “The district court concluded that these findings permit it to depart from the holdings of earlier cases. Yet the Supreme Court insists that it alone has the authority to modify its precedents … and we added in (A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002)) that a district judge lacks authority to use new findings to depart from established law.”

Leaving the merits for resolution after full briefing and argument, the 7th Circuit concluded it would only hold in its Sept. 8 order that existing precedents provide strong grounds for concluding that Indiana is likely to prevail on the contested issues.

“To the extent that the injunction bars Indiana from enforcing Ind. Code §§ 16-34-2-1(a)(1), (2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is stayed pending further order of this court,” it concluded.

“The appellate court’s decision in our favor at this juncture signifies the overall strength of our legal position,” Rokita, a Republican, said in a Sept. 9 news release. “We would expect our commonsense laws to be upheld as the appeal continues. Protecting the culture of life is the top priority of my office, and we will continue fighting for every life alongside our legislative partners.”

Rupali Sharma, senior counsel and director at The Lawyering Project, counsel for Whole Woman’s Health, said in a statement to Indiana Lawyer, “We are currently reviewing the court’s decision and considering all legal options to ensure pregnant Indianans can get the care they need with the dignity they deserve.”

Circuit judges Joel Flaum and Frank Easterbrook joined the unsigned opinion.

But in an 18-page dissent, Wood wrote that she would deny the stay and allow the appeal to move forward. The dissenting judge blasted efforts by states in the past 50 years to enact laws that she said “chip away” at Roe v. Wade while “piously purporting to protect women’s health.”

“It is a mystery to me why the State is unwilling frankly to say that its laws regulating abortion are designed to discourage that procedure to the maximum extent that is constitutionally permissible,” Wood wrote in a footnote. “… Rather than insisting that its laws have only the high-minded purpose of protecting women’s health, in the face of overwhelming evidence that they have no such effect, it would be preferable from my standpoint to have an open debate about the outer reaches of the state’s power to implement laws that have the effect of burdening, or even eliminating, access to abortions.”

Indiana Supreme Court

Aug. 31

Civil Tort-Missed Diagnosis/Fraudulent Concealment

Teresa Blackford v. Welborn Clinic

21S-CT-85

The Indiana Supreme Court has reinstated judgment in favor of a now-defunct clinic that missed a woman’s hepatitis C diagnosis, finding that the patient’s medical malpractice claim was untimely. In reaching that decision, the high court declined to eliminate the distinction between passive and active fraud.

Justice Christopher Goff wrote for the unanimous court Aug. 31 in Teresa Blackford v. Welborn Clinic, 21S-CT-85.

The case involves Teresa Blackford and Welborn Clinic, an Evansville facility that dissolved in 2009. In 2003, the clinic told Blackford that she was hepatitis-negative, but she learned from another doctor in 2014 that she was actually positive for hepatitis C.

A medical review panel found Welborn had committed medical malpractice, but the Vanderburgh Circuit Court granted the clinic’s motion for summary judgment, finding Blackford’s claim was time-barred under the Indiana Business Trust Act. Because the clinic dissolved in 2009, the five-year statute of limitations expired on June 30, 2014. Blackford did not file her action until March 2015.

But in July 2020, a split Indiana Court of Appeals reversed in Blackford’s favor, finding the clinic “fraudulently concealed — at the least, passively; at the worst, actively — material medical information from Blackford.” Thus, according to the COA majority, the clinic’s passive fraudulent concealment tolled the five-year limitations period under the IBTA.

Judge Elaine Brown dissented.

The Supreme Court heard oral arguments in the case in April, then reinstated judgment for the clinic in the Aug. 31 opinion.

In that opinion, Goff first held that the IBTA is not a non-claim statute because it “expressly recognizes the enduring application of the state’s common law of business trusts for determining the scope of an entity’s ‘power and authority’ to conduct business. I.C. § 23-5-1-8. And this power and authority, which a trust may surrender ‘at any time’ when dissolving its business, includes, among other things, ‘the right to sue and be sued.’ I.C. § § 23-5-1-8, -11(a).”

Turning then to the question of whether the law is a general statute of limitation or a statute of repose, the court determined it is the latter, precluding equitable rules of tolling.

“While the IBTA created no new right of action (i.e., a right of action unknown to the common law), the Act clearly defines the timeframe in which that right of action may arise, marking the ‘outer boundaries’ of a claimant’s ‘substantive legal rights,’” Goff wrote, citing Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633 (Ind. 2012). “From that view, the IBTA fulfills the purpose of a statute of repose.

“Indeed, rather than creating a deadline for filing suit based on the occurrence of a tort, as a statute of limitations does, the IBTA bars a legal claim ‘after a specific period of time has run from the occurrence of some event other than the injury which gave rise to the claim,’” the justice continued, citing Kissel v. Rosenbaum, 579 N.E.2d 1322 (Ind. Ct. App. 1991). “That event, of course, is the trust’s surrendering of authority to conduct business in the state.”

But even if the IBTA were subject to tolling, Blackford would still not succeed because the clinic’s constructive fraud precludes equitable relief, the court continued.

“Based on our long-standing distinction between active and passive fraud, which we re-affirm yet again today, we hold that, even if the IBTA’s statute of repose were the rare one subject to tolling, that tolling would have ended — and Blackford’s claim accrued — at the latest, upon termination of the doctor-patient relationship on June 30, 2009 (when the Clinic surrendered its authority to conduct business.) And because Blackford filed suit more than five years later — on March 13, 2015 — we consider her claim untimely,” the justices concluded.

“While we sympathize with Blackford’s unfortunate circumstances,” Goff wrote for the court, “we reject her invitation, which, in effect, amounts to nothing more than a request for us to abolish the distinction between active and passive fraud as it applies to her.”

__________

Sept. 2

Criminal-Marijuana Odor/Probable Cause

Jesse R. Bunnell v. State of Indiana

21S-CR-139

If a law enforcement officer believes they smell raw marijuana based on prior training and experience, they may establish probable cause for a search warrant based on that training and experience, the Indiana Supreme Court has ruled on an issue of first impression.

The Supreme Court affirmed the decision by the Greene Superior Court on Sept. 2 in Jesse R. Bunnell v. State of Indiana, 21S-CR-139, overturning a reversal by the Indiana Court of Appeals.

Jesse Bunnell lived in a rental home with Amber Richardson and her two children. In April 2018, police responded to the home for a welfare check after receiving a report that Bunnell had battered Richardson.

When a deputy arrived, he received no response when knocking on the home’s two ground-level doors. The deputy then went up a set of exterior stairs to another door, where he noticed a security camera with wires passing through the door jam and the smell of raw marijuana emanating from the door.

The deputy asked an assisting officer if he also smelled marijuana, which he did.

After contacting Richardson and confirming she and the children were safe at a domestic violence shelter, the deputy applied for a search warrant to further investigate the marijuana odor. The judge granted the search warrant for the house only, and a subsequent search of the premises revealed nine pounds of raw marijuana, multiple marijuana plants under grow lights, smoking pipes, a scale and other drug paraphernalia.

The state thus charged Bunnell with dealing in marijuana, possession of marijuana and maintaining a common nuisance, all Level 6 felonies, and one count of Class C misdemeanor possession of paraphernalia.

Bunnell moved to suppress the seized items, arguing the search violated the Fourth and 14th Amendments to the United States Constitution and Article 1, Section 11 of the Indiana Constitution because the affidavit failed to specify the deputies’ “training and experience” in detecting a specific smell.

After a hearing, the trial court denied Bunnell’s motion to suppress. On Bunnell’s interlocutory appeal, the Court of Appeals reversed, holding that the search warrant affidavit failed to adequately detail the deputies’ relevant training or experience in detecting the odor of raw marijuana. The state petitioned for transfer, which the Supreme Court granted.

In the high court’s opinion, written by Indiana Chief Justice Loretta Rush, the justices found the search warrant was appropriate.

“Because the scent of raw marijuana is so distinctive, and because marijuana is one of the most ubiquitous drugs in today’s society, we hold that a trained officer seeking a search warrant on this basis need not further detail their qualifications to recognize this odor beyond their basic ‘training and experience,’” Rush wrote.

The high court pointed to Johnson v. United States, 333 U.S. 10 (1948), where the U.S. Supreme Court found that the “presence of odors” can establish probable cause for a search warrant if conditions are met.

In addition, the court found that a warrant-issuing judicial officer can reasonably infer a trained law enforcement officer is qualified to recognize the odor of raw marijuana, citing Indiana Code §§ 5-2-1-1, -9.

“While it is better practice to provide additional detail, the absence of such detail does not defeat probable cause under these narrow circumstances,” Rush wrote. “… (W)e find that officers — like Deputies (David) Elmore and (Christopher) Anderson here — who assert their training and experience as the basis of their ability to detect the scent of raw marijuana can present a substantial basis for probable cause. This satisfies the requirement that warrant-issuing judges and magistrates consider the reasonable inferences drawn from the totality of the evidence.”

Rush noted that the high court’s holding stands in tension with some prior Court of Appeals decisions that have suggested or held that an officer’s general statement to this effect may not suffice for a probable cause determination. Such cases included Alexander-Woods v. State, 163 N.E.3d 902, 910 (Ind. Ct. App. 2021), trans. denied; Bean v. State, 142 N.E.3d 456, 463–64 (Ind. Ct. App. 2020), trans. denied; and State v. Hawkins, 766 N.E.2d 749, 751–52 (Ind. Ct. App. 2002), trans. denied.

“To the extent these cases conflict with today’s holding, we disapprove them,” Rush wrote.

Defendants who wish to challenge probable cause remain free to inquire as to officers’ training and experience, though the overarching inquiry remains whether the warrant-issuing judge has a substantial basis to determine that probable cause existed, the high court held.

Justices Steven David and Geoffrey Slaughter both concurred, Justice Christopher Goff concurred in result and Justice Mark Massa concurred with a separate opinion.

“The Court of Appeals decision we vacated might have been summarized thusly: The boilerplate magic words in a search warrant application in these circumstances require more than just ‘based on my training and experience,’” Massa opined. “Some further elaboration was required describing said training and experience.

“Our holding today makes clear those six magic words suffice in cases involving the odor of raw marijuana. In support, we cite a neighboring federal court decision that found, ‘implicit in an officer’s statement that he smelled marijuana is that he knows what marijuana smells like by virtue of his law enforcement experience,’” Massa continued, citing United States v. Conklin, 154 F. Supp. 3d 732, 738 (S.D. Ill. 2016).

“In my judgment, that ought to be enough; it is ‘implicit.’ The next case may well entail an application where an officer says, ‘I smelled raw marijuana,’ but omits the six magic words. Suppression, then, would seem to follow from today’s holding, despite the affiant’s implicit knowledge that many would recognize. Detectives and magistrates should heed the lesson.”

Indiana Court of Appeals

Aug. 30

Miscellaneous-Gender Marker Change/Sufficiency of Evidence

In re the Change of Name and Gender of H.S., a Minor, L.S.

21A-MI-884

A split Indiana Court of Appeals panel has upheld the denial of a mother’s petition asking for a gender marker change for her transgender son on his birth certificate, finding sufficient evidence wasn’t provided to prove the change was in the child’s best interests.

In September 2020, mother L.S. petitioned the Allen Superior Court for a change of name and gender marker on the birth certificate of her 15-year-old transgender son H.S. pursuant to Indiana Code § § 34-28-2-1 and 16-37-2- 10, respectively.

During a hearing on the matter, testimony was provided from the mother, father and H.S., who all advocated for the changes. Mother also submitted into evidence two documents, one described as a letter from H.S.’s physician and the other described as a letter from his “counselor.”

The trial court issued an order granting the petition for a name change but denied the gender marker change, finding insufficient evidence of the child’s best interest due to the absence of expert testimony or authenticated documents.

After applying a “best interests of the child analysis found in Indiana Code Section 31-7-17-2-8 as the standard for deciding cases involving a request for a gender marker change for a minor child,” it found as dispositive “the lack of competent evidence” as to the mental and physical health of the child statutory factor, which it noted was “likely the most significant factor.”

Writing for the appellate majority, Judge L. Mark Bailey affirmed, noting that the court examined the cases of Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), Matter of R.E., 142 N.E.3d 1045 (Ind. Ct. App. 2020), and Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021).

The appellate majority found the totality of the child’s medical history was highly relevant, but the parents “decided to forego expert testimony or the proffer of any relevant medical records, in favor of their conclusory testimony prompted by their teenager’s relatively recent disclosure.”

“Indeed, the trial court aptly pointed out that there was no authenticated document of any sort admitted into evidence. Under these circumstances, I cannot say that the trial court misapplied the law,” Bailey wrote.

Judge Rudolph R. Pyle III concurred in result in a separate opinion, while Judge Terry A. Crone dissented.

“As summarized in this opinion and more fully explained in Matter of A.B. … I do not believe statutory authority exists for the judiciary to invent a procedure for changing a minor child’s gender marker to reflect gender identity and presentation. Further, a fundamental right has not been established allowing the judiciary to grant the remedy sought in this case,” Pyle wrote.

Crone’s dissent — which recognized statutory authority doesn’t exist to change gender markers for minors — said he agreed with Bailey’s conclusion that any application of I.C. 15-37-2-10 “must be accompanied by a best interests analysis,” but he disagreed that the teen’s parents didn’t proffer any relevant medical records.

“The trial court found that ‘no admissible evidence’ was presented on H.S.’s mental and physical health, which obviously is not the case because the court actually admitted the testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor,” Crone wrote. “I would reverse and remand with instructions to grant the requested relief, as the failure to do so was a blatant abuse of the trial court’s discretion.”

Crone opined that the concerns shared by the mother that H.S. wouldn’t be able to get legal documents, such as a driver’s license, with a male gender marker could lead to discriminatory treatment was also a real concern that should’ve held more weight.

“Recent history offers plenty of unfortunate examples of legal, governmental, and social intolerance (including violence) toward transgender persons,” Crone wrote. “In fact, Mother testified that she withdrew H.S. from the local public school because of bullying based on his ‘position as a transgender student.’ … In sum, the trial court was wrong to disregard the wishes of H.S.’s parents as they relate to his best interests.”

The dissenting judge also said that the parents know what’s best for H.S. — not the trial courts.

“It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial court of judging what ‘happiness’ means to their child and what is in his long-term best interests with respect to his gender identity,” the dissent said.

The case is In re the Change of Name and Gender of H.S., a Minor, L.S., 21A-MI-884.

__________

Aug. 31

Juvenile CHINS-Informal Adjustment/Sufficiency of Evidence

In the Matter of A.A.D., A.D., and J.D. (Minor Children) and T.D. (Father) v. Indiana Department of Child Services

21A-JC-665

A trial court was without statutory authority when it ordered a father to participate in an informal adjustment without his consent, the Indiana Court of Appeals has ruled.

In December 2020, the Indiana Department of Child Services filed a petition alleging that A.A.D., A.D. and J.D. were children in need of services. Specifically, the petition alleged that T.D., the father who is the custodial parent of the children, “was found unconscious on [the] kitchen floor with the front door wide open.”

The DCS family case manager believed the father was “under the influence [of drugs] due to his erratic behaviors, [s]cabs on his arms, back and face, and [father] sweating profusely while speaking … .” The petition alleged the father had a history of illegal substance use and the children had reported seeing drugs in the garage.

A factfinding hearing was held this past March in the Allen Superior Court. Following the hearing, the trial court concluded DCS had not proven the allegations of the CHINS petition by a preponderance of the evidence. The court denied the CHINS petition and ordered the children returned to the father’s care.

However, determining “greater protection needs to be in place” due to the “concerning” facts presented, the trial court further ordered the parties to “prepare and institute a plan for an informal adjustment to address the unique needs evidenced by the facts of the case.”

On appeal, the father contended that the trial court was without statutory authority to order him to participate in an informal adjustment without his consent, and further that once the trial court determined that there was insufficient evidence to support a CHINS adjudication, the court was required to discharge the children from its jurisdiction.

DCS agreed that statutory law doesn’t support the trial court’s order and that a reversal was appropriate.

COA Judge Terry Crone pointed to both Indiana Code § 31-34-8-2 and I.C. 31-34-11-3 in the appellate court’s reversal in In the Matter of A.A.D., A.D., and J.D. (Minor Children) and T.D. (Father) v. Indiana Department of Child Services, 21A-JC-665.

__________

Sept. 7

Protective Order-Domestic Violence/Sufficiency of Evidence

Taylor Jones v. G.H., by next friend, K.H.

21A-PO-555

The Indiana Court of Appeals on Sept. 7 upheld a protective order requested by a father on behalf of his son after a domestic incident occurred with his mother’s former boyfriend that left the kid with a bloodied nose.

On Oct. 24, 2020, 6-year-old G.H. was at his mother’s house when an incident took place with her then-boyfriend that left the child injured.

Police responded to a domestic disturbance at the mother’s home, where they found G.H.’s nose bleeding and a red mark on his face, with “blood throughout the bathroom.” The child’s father, K.H., also observed that his son was acting timid and unlike his usual self.

Taylor Jones, who at the time was dating the child’s mother and considered himself “almost like a stepfather,” had said that G.H. was arguing with his 2-year-old sibling and that Jones needed to separate the kids. Later on, however, Jones testified that G.H. told his mom that Jones had “hit him.”

The man was criminally charged with Level 5 felony battery resulting in bodily injury to a person under 14 years of age and Level 6 felony domestic battery.

Two days after the incident, K.H., as his son’s next friend, filed a petition for an order for protection against Jones alleging he had “committed repeated acts of harassment against the child.” The petition, however, didn’t identify the relationship between Jones and G.H.

The Fulton Circuit Court issued an ex parte order for protection. Then, at a subsequent hearing, the trial court ruled that while the petition incorrectly alleged repeated acts of harassment against G.H., Jones had a sufficient relationship with G.H., and K.H. had established by the greater weight of the evidence that domestic or family violence occurred sufficient to justify the issuance of the protection order.

The Indiana Court of Appeals agreed in Taylor Jones v. G.H., by next friend, K.H., 21A-PO-555.

“Child is a minor child, and Mother dated Jones; she engaged in a sexual relationship with Jones; and she has a child in common with Jones. Accordingly, pursuant to subsection (b), Child clearly qualifies as a ‘family or household member’ of Jones,” Judge Elizabeth Tavitas wrote for the appellate panel, citing Indiana Code § 34-6-2-44.8.

The panel further found sufficient evidence existed to demonstrate that Jones caused physical harm to G.H. and, as a result, committed domestic or family violence against the child.

Indiana Tax Court

Aug. 31

Tax-Homestead Deductions/Out-of-State Property

Monroe County Assessor v. Kim Strychalski and Richard Strychalski

20T-TA-11

A Monroe County couple is not entitled to claim homestead deductions on both their Illinois and Indiana homes, which they had done for several years after moving to Indiana, the Indiana Tax Court has ruled.

The Tax Court on Aug. 31 reversed and remanded a final determination from the Indiana Board of Tax Review, which found Kim and Richard Strychalski were entitled to a standard homestead deduction for their Unionville property during the 2015, 2016 and 2017 tax years. At the same time, they also had a homestead deduction on their Illinois home, where they had relocated from in 2014.

According to the Monroe County assessor, the Strychalskis responded in their “Homestead Standard Deduction Audit Questionnaire” that their driver’s licenses, voter registrations and tax return filings were all in Illinois for 2015, 2016 and 2017. Also, they had yet to change their Illinois voter registrations in 2019.

Based on those responses, they were not eligible for Indiana’s homestead deduction for each of the years at issue. The couple appealed to the Monroe County Property Tax Assessment Board of Appeals and to the Indiana Board of Tax Review, the latter of which ruled in their favor.

While Indiana Tax Court Judge Martha Blood Wentworth did not “disturb the Indiana Board’s discrete finding that the Indiana property was the Strychalskis’ principal place of residence during the years at issue,” she reversed the board’s finding that they were entitled to an Indiana homestead deduction.

“The Indiana Board’s reliance on the absence of contrary evidence to show the (Strychalskis’) son would be entitled to the Illinois homestead deduction wrongly turns the burden of proof concept on its head. Indeed, at the administrative level, the Strychalskis, who challenged their assessments, bore the burden to prove they were entitled to Indiana’s homestead deduction; the Assessor was not required in the first instance to prove they were not,” Wentworth wrote.

“… Furthermore, other than Kim Strychalski’s conclusory statement that the Illinois homestead deduction was mistakenly recorded in their names rather than their son’s, there is no additional testimony or other evidence to show their son would have been eligible for the Illinois homestead deduction during the years at issue,” she continued.

Wentworth went on to note the lack of evidence, “conclusory or otherwise,” that a correction was made for the years under appeal in removing the couple’s names from the Illinois homestead deduction and replacing it with their son’s name.

“The sum of the evidence, without contradiction, establishes that the Illinois correction was done for the year the Strychalskis made the change at the Illinois office and prospectively. No evidence relates the correction, however, to the years at issue,” the court wrote. “… Accordingly, the Strychalskis did not show that Illinois removed their names from the homestead deduction or that Illinois retroactively placed the homestead deduction in their son’s name for the years at issue.”

The court therefore found the Strychalskis had more than one homestead deduction in their names for the years at issue in violation of Indiana Code § 6-1.1-12-37(h) and thus reversed. It found the Indiana board’s final determination to be “conclusory, unsupported by probative evidence, and an abuse of discretion because it is clearly against the logic and effect of the facts and circumstances in this matter and misapplies the law.”

The case of Monroe County Assessor v. Kim Strychalski and Richard Strychalski, 20T-TA-11, was thus remanded to the board for the assessor to adjust the Strychalskis’ property tax assessments for the 2015, 2016 and 2017 tax years.•

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