Indiana Court Decisions – July 29-Aug. 11, 2021

7th Circuit Court of Appeals

Aug. 2

Civil Plenary-Bodily Autonomy/COVID-19 Vaccine

Ryan Klaassen, et al. v. Trustees of Indiana University

21-2326

The 7th Circuit Court of Appeals this month denied a request to enjoin Indiana University’s COVID-19 vaccine mandate, letting the Bloomington-based school system proceed with its requirement that students, faculty and staff be inoculated against the virus before returning to campus this month. The U.S. Supreme Court has also declined to intervene.

Judge Frank Easterbrook wrote for the unanimous appellate panel that also included Judges Michael Scudder and Thomas Kirsch. The panel handed down the order denying the injunction sought by a group of IU students in Ryan Klaassen, et al. v. Trustees of Indiana University, 21-2326.

The eight plaintiffs had argued the mandate violated their 14th Amendment rights to bodily autonomy and integrity and to medical treatment choice.

The school allows exemptions for medical, religious and ethical reasons. Seven of the eight plaintiffs have either been granted an exemption or were eligible. Those granted an exemption must wear a mask, practice social distancing and participate in regular COVID testing.

The Indiana Northern District Court denied the students’ request to enjoin the mandate, then declined to stay its ruling pending appeal.

“Given Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2,” Easterbrook wrote for the 7th Circuit. “Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.”

Jacobson defeats the plaintiffs’ argument that IU’s vaccine mandate violated their fundamental rights, thus implicating substantive due process, Easterbrook wrote. And, he added, “this case is easier than Jacobson for the University, for two reasons.”

First, Jacobson upheld a vaccine mandate that did not allow for exceptions for adults, while IU’s mandate does have exceptions. And second, unlike in Jacobson, “Indiana does not require every adult member of the public to be vaccinated … .”

“Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and more) are common requirements of higher education. Vaccination protects not only the vaccinated person but also those who come in contact with them, and at a university close contact is inevitable,” Easterbrook wrote for the panel.

“We assume with plaintiffs that they have a right in bodily integrity. They also have a right to hold property,” he continued. “Yet they or their parents must surrender property to attend Indiana University. Undergraduates must part with at least $11,000 a year (in-state tuition), even though Indiana could not summarily confiscate that sum from all residents of college age.

“… If conditions of higher education may include surrendering property and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that will help all students remain safe when learning,” the panel concluded. “A university will have trouble operating when each student fears that everyone else may be spread disease. Few people want to return to remote education — and we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks or frequent testing of the unvaccinated) will make in-person operations safe enough.”

The plaintiffs-students asked U.S. Supreme Court Justice Amy Coney Barrett, circuit justice for the 7th Circuit, for a writ of injunction against the vaccine mandate. She denied that request Aug. 12.

Civil Plenary-Vagueness Challenge/Abortion Complications

Planned Parenthood of Indiana and Kentucky, Inc. v. Marion County Prosecutor, et al.

20-2407

An Indiana statute requiring medical providers to report to the state complications “arising from” abortions is not unconstitutionally vague on its face, a split 7th Circuit Court of Appeals has ruled. A dissenting judge, however, would uphold the injunction against the “incomprehensible” law.

Indiana prevailed in the ruling against Planned Parenthood of Indiana and Kentucky. Former Indiana Attorney General Curtis Hill took the case to the 7th Circuit in September 2020.

The suitPlanned Parenthood of Indiana and Kentucky, Inc. v. Marion County Prosecutor, et al., 20-2407 — deals with 2018’s Senate Enrolled Act 340, which required abortion providers to report “complications” to the Indiana Department of Health, which would then file an aggregate report with the Centers for Disease Control and Prevention.

Abortion complications were defined in the law as “any adverse physical or psychological condition arising from the induction or performance of an abortion.”

In 2018, Judge Richard Young of the U.S. District Court for the Southern District of Indiana issued an injunction against that portion of SEA 340. He later granted summary judgment to Planned Parenthood on a vagueness challenge, holding that the phrase “arising from” was unconstitutionally vague.

But the 7th Circuit reversed the district court’s summary judgment ruling and vacated its permanent injunction on that basis, finding that while the statute does have some ambiguity, Planned Parenthood did not show that the law was unconstitutionally vague on its face. The case was remanded for further proceedings.

Judge Diane Wood dissented from the majority of Judges Frank Easterbrook and Amy St. Eve.

The 7th Circuit majority found Indiana’s broad abortion-complications reporting requirement is “unusual” among peer statutes, noting that not all reporting statutes impose criminal penalties on violators. It also found Indiana’s statute to be “atypical” in its exclusion of a mens rea or scienter requirement.

Additionally, the majority noted that many of the other abortion-complications reporting statutes cited by the state use more specific language to guide doctors about the causal relationship required between the abortion and any complications.

“In sum, Indiana’s Complications Statute provides few guideposts to inform practitioners of the conduct that is expected from them, especially when compared with similar statutes in other states,” St. Eve wrote for the majority. “… The vagueness problem here is not that the Statute is missing one element or another. Rather, the factors outlined above create some uncertainty in the aggregate. Most critically, it is unclear what causal relationship is required between the abortion and the complication, and doctors are not provided with an objective standard by which to make that decision.”

Despite that, the 7th Circuit concluded the statute does have a “discernable core” needed to survive the facial challenge at hand. It noted that even Planned Parenthood’s brief stopped short of stating that several of the complications listed in the statute were impossible.

It pointed back to its precedents, particularly Trustees of Indiana University v. Curry, 918 F.3d 537, 541 (7th Cir. 2019), that preclude any other result in the case at hand.

“This ‘core’ of the Complications Statute satisfies the void-for-vagueness test: It is understandable by persons of ordinary intelligence and not subject to arbitrary enforcement,” the majority held, ruling that the statute must survive Planned Parenthood’s preenforcement, facial attack.

“The enforcement of this Statute will inevitably present many uncertainties at the margins, but the resolution of those ‘edge questions’ arising from the enforcement of a state law is a ‘principal role of the [state’s] courts.’”

But in a dissent, Judge Wood opined that the court should not let the “incomprehensible law stand,” and that the “only choice is to strike it down as void for vagueness.”

“My colleagues have voted to overturn (the) injunction, on the theory that they can find an essential ‘core’ meaning to the law. But, without admitting this in so many words, their rationale amounts to a concession that no such permissible core meaning can be discerned without adding critical new terms to the law,” Wood wrote. “It is hard to believe that this is an approach that courts would, or should, generalize. And indeed, I suspect that there is no appetite to do so.

“To my knowledge, there is no rule saying that courts should bend over backwards when faced with an abortion law, but not when the law in question relates to gun ownership or use, violence against women, or immigrants’ rights. I therefore dissent.”

Wood opined that although she doesn’t doubt that it would be possible to write a reporting statute that would avoid unconstitutional vagueness, Indiana has yet to do so.

As such, she noted that while it remains unclear whether the Indiana Department of Health can limit the law “as drastically” as the majority advises, “for now there is no reasonable medical judgment standard, no temporal limitation, no scienter requirement, and no but-for causal standard.”

“The district judge correctly found that this left an empty core that cannot be enforced consistently with the due process clause of the Fourteenth Amendment,” Wood concluded.

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Aug. 6

Criminal-Robbery/Armed Career Criminal Act

United States of America v. Bryant Love

20-2131, 20-2297

A man convicted on several drug counts who argued that a northern Indiana judge was wrong about his armed robbery conviction has lost an argument before the 7th Circuit Court of Appeals, which reversed for the federal government in his case.

On a few occasions, Bryant Love sold crack cocaine to a confidential informant that eventually led to law enforcement searching his apartment. There, police found crack and two guns with ammunition about 15 feet away. As a result, Love pleaded guilty to three drug counts and one felon-in-possession count.

The federal government subsequently proposed three Armed Career Criminal Act predicates for Love’s case, including a 1994 Illinois armed robbery; a 2009 federal distribution of crack cocaine conviction; and Class D battery resulting in bodily injury in 2015 in Indiana.

Indiana Northern District Court Judge Philip Simon held that while the armed robbery conviction satisfied the ACCA, Love’s battery conviction did not, disqualifying him from being considered an armed career criminal. It therefore declined to apply the 15-year mandatory minimum sentence and instead sentenced Love to 96 months on each count, to be served concurrently.

Love appealed, arguing that the judge was wrong about the armed robbery conviction and that he was “mousetrapped.” He also argued that the judge erred in holding that he possessed a firearm “in connection with” drug trafficking and in considering the facts underlying the eight pending charges, but that it was right about the battery conviction.

The government, however, asserted the exact opposite, which the 7th Circuit ultimately agreed with in United States of America v. Bryant Love, 20-2131 and 20-2297. It first concluded that Love’s 1994 armed robbery conviction does count as an ACCA predicate.

“The judge determined that the most persuasive proof came from the Record Officer, who said it was not the practice of the institution that discharged Love to provide restoration-of-rights letters, and who said no such letter was found in Love’s DOC file. So the judge concluded Love had not demonstrated that he received a notice about the restoration of his civil rights that failed to mention a continuing firearms limitation,” Senior Judge Daniel Manion wrote for the 7th Circuit.

“On appeal, Love invites us to re-weigh the evidence. But our review of the facts is limited to clear error, and we do not see any here. So Love’s 1994 Illinois armed robbery conviction counts as an ACCA predicate,” it wrote.

As to his battery conviction, the 7th Circuit concluded that Indiana law required the prosecutor to prove Love touched a police officer in a rude, insolent or angry manner and to prove that this resulted in bodily injury.

“If the touching resulted in bodily injury, then by definition the touching was capable of causing bodily injury. And that is enough for the ACCA. So Love’s 2015 conviction for Indiana Class D battery resulting in bodily injury counts as an ACCA predicate,” it wrote, concluding that Love must be re-sentenced under the ACCA and ordering a remand.

As to his other issues on appeal, the 7th Circuit declined to address them based on Love’s absence of a reply to the government’s argument that it need not address the other two issues if he must be resentenced under the ACCA.

Indiana Court of Appeals

July 30

Civil Tort-Indiana Department of Insurance/Deceased Victim

The Health and Hospital Corporation of Marion County d/b/a Eagle Valley Meadows and American Senior Communities, LLC v. Sharon Dial, as Administrator for the Estate of Robert McFerran, Deceased

20A-CT-2382

A proposed complaint before the Indiana Department of Insurance was not void just because it was filed in the name of a deceased person on behalf of a deceased victim of alleged medical malpractice, the Indiana Court of Appeals has ruled.

Betty McFerran died shortly after her husband, Robert McFerran, died while a resident at Eagle Valley Meadows, a nursing home in Indianapolis.

After her death, an attorney filed a proposed complaint with the Indiana Department of Insurance on Betty’s behalf, individually and as wife of Robert.

The proposed complaint alleged Eagle Valley Meadows provided negligent medical care and, as a result, Robert suffered permanent injuries, pain, emotional distress and death. The couple’s daughter, Sharon Dial, was later appointed successor administrator of Robert’s estate.

When a medical review panel ruled for Eagle Valley, Dial filed a complaint in Marion Superior Court alleging negligence resulting in her father’s death at the nursing home.

But Eagle Valley argued Betty’s proposed complaint was a legal nullity due to her death before the proposed complaint was filed with the IDOI. Therefore, it argued, the proposed complaint did not toll the applicable statute of limitations, which resulted in Dial’s suit being brought outside the statute of limitations period.

The trial court directed both parties to submit post-hearing briefs, noting that it wanted “to see if there’s any more current cases that talk about that rule of law, that black-letter rule as it applies to newly created causes of action such as a claim under the Medical Malpractice Act.”

After receiving the briefs, the court denied Eagle Valley’s motion for summary judgment.

Upon a grant of interlocutory appeal in the case, the Indiana Court of Appeals accepted and affirmed in The Health and Hospital Corporation of Marion County d/b/a Eagle Valley Meadows and American Senior Communities, LLC v. Sharon Dial, as Administrator for the Estate of Robert McFerran, Deceased, 20A-CT-2382.

The appellate court concluded that while a party must be alive to initiate a complaint in state or federal court, the cases Eagle Valley cited did not answer whether a proposed complaint filed before the IDOI by the deceased administrator of the alleged malpractice victim’s estate tolls the statute of limitations.

Noting that neither party provided authority regarding the applicability of Trial Rule 17 or Trial Rule 25 to proceedings before the medical review panel, the COA said both Eagle Valley and Dial cited out-of-state cases that did not involve a proposed complaint filed in front of a medical review panel.

“Dial’s invocation of Indiana Code section 34-11-8-1, which allows for the continuation of an action if it abates or is defeated by the death of a party, is misplaced because the statute also contemplates that the plaintiff was alive when the lawsuit was filed,” Judge Melissa May wrote. “… We are thus left with a question of first impression.”

The COA found that while Robert was the victim of the alleged malpractice, the administrator of his estate is the real party in interest and is therefore required to bring suit in state court because the administrator stands to recover and distribute whatever judgment may be entered against Eagle Valley.

“The presence of a living party able to accept relief is part and parcel of the court performing its judicial function,” May wrote.

The court also found that the medical review process was not thwarted, and Eagle Valley did not show how it was prejudiced because the proposed complaint was filed on behalf of Betty after her death, rather than on behalf of Dial or her other daughter.

“Eagle Valley Meadows chose to allow the medical review panel process to play itself out and did not raise any objection to the proposed complaint being filed in Betty’s name until the actual lawsuit was filed in the name of a living successor administrator of Robert’s estate,” May concluded.

“For all these reasons, we affirm the trial court’s denial of Eagle Valley Meadows’ motion for summary judgment and remand for further proceedings not inconsistent with this opinion.”

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Aug. 4

Juvenile-Delinquency/Social Media Threat

In the Matter of K.Y., a Child Alleged to Be Delinquent, K.Y. v. State of Indiana

21A-JV-330

A Knox County teenager who sent a threatening social media message to numerous middle school students involving guns will retain a delinquency adjudication for felony intimidation, the Indiana Court of Appeals has ruled, though a misdemeanor adjudication was vacated on double jeopardy grounds. The appellate court declined to dismiss the message as a “juvenile antic” in light of the numerous American school shootings in recent years.

Thirteen-year-old K.Y, who was enrolled in e-learning at North Knox School, got in serious trouble after sending what she alleged to be a “joke” message through her friend’s social media account to Clark County Middle School students that included a cartoon character from an online gaming platform brandishing a handgun in each hand. Beneath the image, K.Y. had added the caption, “consider this a f—ing warning all of you don’t come to school on Monday.”

K.Y. told law enforcement that she found the picture and meme “on a school shooting site or something like that” and that she intended it to be “a joke” and was not looking to harm anyone. But the Knox Superior Court concluded there was probable cause to believe K.Y. was a delinquent child and ordered her to house arrest.

The trial court later officially found the teen to be a delinquent child and subsequently concluded she had committed acts that would constitute intimidation as a Class A misdemeanor and as a Level 6 felony if committed by an adult.

K.Y. was ordered to placement in a secure detention facility for 90 days, suspended to one year of probation. She was also ordered to complete 10 hours of community service and participate in in-home therapy services.

While it agreed there was sufficient evidence to support K.Y.’s felony intimidation adjudication, the Indiana Court of Appeals in In the Matter of K.Y., a Child Alleged to Be Delinquent, K.Y. v. State of Indiana, 21A-JV-330, ordered the juvenile court to vacate her misdemeanor adjudication after concluding she could not be adjudicated delinquent for both offenses.

“K.Y. contends, and the State agrees, that her adjudications for both felony and misdemeanor intimidation violate Indiana’s prohibition against double jeopardy because misdemeanor intimidation is an inherently included lesser offense of felony intimidation,” Judge Patricia Riley wrote for the COA.

Turning to the sufficiency of the evidence, the appellate court determined that although K.Y. testified she did not want to harm anyone, she also testified that she understood that school shootings happen and that middle school students would receive her social media message.

“A reasonable inference could be deduced from these circumstances that K.Y. intended to threaten Clark County Middle School students to engage in conduct against their will and to refrain from attending school on Monday, even if she did not intend to actually carry out the shooting,” Riley wrote.

The COA also disagreed with K.Y. that her message was the equivalent of a “juvenile antic” intended as a joke.

“Far too many times within the recent past, our nation has mourned as a result of horrific carnage wrought by gun wielding school students. K.Y. admitted being aware of and acknowledged these school shootings. As such, she must have known the effect the message would have on the students in the wake of these shootings, yet she chose to disseminate the post anyway. Not only did she elect to send a depiction of a violent cartoon, she consciously inserted a caption which left little to the imagination,” the COA wrote.

“In light of this stark reality in which our children attend school, a statement made by a thirteen-year-old student, aware of these realities, not to attend school on a specific day combined with an image of a character pointing handguns, can no longer be ignored or in hindsight be characterized as a joke that can be casually disregarded, but instead must be regarded as an intentional attempt to create fear and apprehension.”

__________

Aug. 6

Criminal-Prescriptions/Narcotics Possession

Latieka Q. Page v. State of Indiana

21A-CR-90

A woman who still had Oxycodone pills after her prescription had expired should not have been convicted for possession of a narcotic drug, the Indiana Court of Appeals has ruled.

In an Aug. 6 reversal, the appellate court overturned an Elkhart Superior Court decision that found Latieka Page guilty of Level 6 felony possession of a narcotic drug after an Indiana State Police trooper found Oxycodone in her vehicle during a July 2019 traffic stop.

Page, who said she was driving to visit her mother, smelled of raw marijuana, according to an officer who approached her vehicle. A search found a bag containing THC cartridges, edibles and a glass jar that contained several grams of marijuana. The bag also had an unlabeled pill bottle with dozens of Oxycodone pills.

Page held fast to her argument that the pills were from a valid prescription for chronic back pain and that she had a larger bottle of the Oxycodone pills at home. She said she used the unmarked pill bottle when she was traveling and took less than prescribed because she “didn’t want to get addicted to it.”

Affirming that some of her pills were from a prescription he wrote, Dr. Ajit Pai, an anesthesiologist and pain specialist with Pain Management Group in Mishawaka, testified that in December 2017 he had written three prescriptions for Page, each for 120 pills for 30 days with zero refills. Page subsequently obtained prescriptions for lesser amounts of the pain pills from three other providers throughout 2018.

Page explained to the judge that, to address her pain, she tried to rely more on marijuana and less on Oxycodone, as marijuana had fewer side effects, resulting in her accumulating “extra pills.” She asked that the court find her not guilty of possession of a narcotic drug but admitted to the misdemeanor marijuana possession.

But the trial court found her guilty of both offenses, concluding that the prescriptions weren’t valid at the time of her traffic stop. It sentenced her to one year in the Elkhart County Jail, with all the time suspended to probation, as well as a concurrent term of 180 days suspended to probation for the misdemeanor conviction.

“We cannot agree with the trial court’s determination that a validly issued prescription becomes invalid for purposes of I.C. § 35-48-4-6 upon a person’s failure to take the medicine as prescribed. There is nothing in the statute from which to infer that a prescription is no longer valid once the prescribed period of use elapses,” Judge Robert Altice wrote for the appellate court.

“The effect of the trial court’s determination is that every person who retains, that is, possesses, a prescription of a controlled substance for any time after the proscribed number of days commits a possession offense. We do not believe the legislature intended such a harsh result,” Altice continued.

“This court has suggested that the ‘valid prescription’ requirement is intended to assure the prescription was not obtained by fraud, misrepresentation, or deceit,” he wrote, citing Schuller v. State, 625 N.E.2d 1243 (Ind. Ct. App. 1993). “There is no evidence of such here. Nor is there any evidence for the proposition that Page obtained the prescriptions from anyone other than a practitioner in the scope of the practitioner’s professional practice.”

As such, the COA found a reversal was warranted for Page on her felony possession conviction, ruling that she proved by a preponderance of the evidence that she had obtained the Oxycodone via one or more prior, validly issued prescriptions.

The case is Latieka Q. Page v. State of Indiana, 21A-CR-90.

Indiana Tax Court

July 30

Tax-Fire Contracts /Subject Matter Jurisdiction

Eric S. Morris v. Hamilton County Assessor

20T-TA-19

A Clay Township property owner who attempted and failed to have his day in court with a Hamilton Superior Court and then with the Indiana Tax Court could not convince either that they had subject matter jurisdiction in his case seeking relief from increased taxes.

Troubles for Eric Morris began years before he brought a lawsuit in Hamilton Superior Court No. 4. In 2012, Morris purchased a property located in an unincorporated area of the township, commonly known as Home Place, adjacent to the city of Carmel.

For nearly 10 years the city provided fire protection services to the residents of Home Place under a series of annual “Contracts for Fire Protection” with Clay Township. The contract required Clay Township to pay its proportionate share of Carmel’s fire department budget based on the ratio of total assessed valuation of unincorporated property compared to the total assessed valuation of the property within Carmel.

The contracts also provided that Clay Township would agree to seek Department of Local Government Finance approval for an appropriation from its Fire Fighting Fund to pay the city.

But Morris sued after Clay Township and Carmel agreed to impose a uniform tax rate on all of the taxable property throughout the township — including Home Place — in order to fund and build two additional fire stations projects.

His small claims complaint, which also stated his claims were based on “Incorrect Taxation” against the township, argued that it had violated the Interlocal Agreement by imposing costs for those facilities solely on areas outside Carmel and that it had imposed taxes on unincorporated areas in violation of its annual fire contract with the city.

Clay Township moved to dismiss Morris’ complaint for lack of subject matter jurisdiction, arguing that the Indiana Tax Court had exclusive jurisdiction over the case, not Hamilton Superior Court No. 4. After the trial court dismissed his case, the Hamilton County Property Tax Assessment Board of Appeals made a similar move and denied Morris’ three notices to initiate an appeal seeking relief under the Indiana Uniform Declaratory Judgments Act.

The Indiana Board in its final determination also dismissed his appeals, which the Indiana Tax Court affirmed in Eric S. Morris v. Hamilton County Assessor, 20T-TA-19.

“The Indiana Board found it had no authority to address Morris’s appeals brought under the UDJA because that Act did not apply to administrative agencies. Now, on appeal, Morris claims that by holding its administrative hearing and reviewing the parties’ evidence, the Indiana Board demonstrated that it actually did have the authority to address the issues raised in his appeals,” Judge Martha Wentworth wrote for the Tax Court.

Acknowledging that Morris did not bring claims that included the assessed valuation of tangible property, property tax deductions, property tax exemptions or property tax credits, the tax court concluded that the Indiana board did not err in its determination.

Neither did Morris show that the Indiana Board erred in dismissing his appeals on the basis that the UDJA extends to the Indiana Board, it concluded.

“At its heart, Morris’s appeal is that Clay Township violated its Interlocal Agreements with Carmel, Fire Fund 1111, and various statutory and constitutional provisions by failing to account for certain expenditures. Morris’s appeal therefore does not arise under the tax laws of Indiana and is not an original tax appeal. Consequently, the Court cannot assume jurisdiction over his appeal under the UDJA,” Wentworth wrote.

In a footnote, the Tax Court noted that while it is “sympathetic to Morris’s predicament, it cannot decide the merits of his case because it is a contract case, not a property tax case. Consequently, Morris’s remedy lies in the plenary courts.”

__________

Aug. 5

Tax-Summary Judgment/Incomplete Properties

Convention Headquarters Hotels, LLC v. Marion County Assessor

19T-TA-21

A decade-old dispute over the assessment of Indianapolis’ largest hotel is headed for trial after the Indiana Tax Court declined to enter summary judgment for either the owner of the downtown JW Marriott or the Marion County assessor.

The case of Convention Headquarters Hotels, LLC v. Marion County Assessor, 19T-TA-21, involves Indianapolis’ blue glass giant, which sits on more than four acres of land in the city’s central business district and is owned by Convention Headquarters Hotels LLC.

Two years after Convention HQ broke ground on the hotel in 2008, the Marion County assessor used a “percentage complete” factor to value the partially complete improvements made to the structure, including the hotel building itself and the enclosed skywalk, at $71,716,700. An assessed value of $15,270,400 was assigned to the land.

Convention HQ protested the 2010 assessment. After the Marion County Property Tax Assessment Board of Appeals failed to act on its protest more than six years later, Convention HQ sought review with the Indiana Board of Tax Review pursuant to Indiana Code § 6-1.1-15-1(o).

After the maximum time elapsed with still no final determination from the Indiana board, Convention HQ appealed to the Indiana Tax Court, alleging that the 2010 assessment of its partially complete hotel violated the Equal Protection and Due Process clauses of the 14th Amendment, its civil rights pursuant to 42 U.S.C. § 1983 and the Property Taxation and Equal Privileges and Immunities Clauses of the Indiana Constitution. It also argued that its land assessment contravened Indiana’s market value-in-use standard.

The assessor denied Convention HQ’s allegations and instead filed a counterclaim asking to raise the 2010 assessment, but the Tax Court bifurcated the parties’ claims, staying all proceedings on their valuation claims until the constitutional claims were fully resolved. Both parties eventually moved for partial summary judgment on various claims, which the Tax Court denied in an Aug. 5 order.

The court first addressed Convention HQ’s argument that the assessor had treated its partially complete hotel differently than he treated similarly situated properties in violation of the Equal Protection Clause. Specifically, Convention HQ argued that seven buildings in Marion County ranging from 40% to 85% complete were assigned assessed values between $411,200 and $80,165,500 on six separate assessment dates. However, the remaining partially complete buildings contained no indication in the “% Comp” column that the building was less than 100% complete, contained no sketches of any portion of a partially complete building and indicated a building value of zero.

But even if Convention HQ’s inference from its evidence was reasonable, the Tax Court held that the hotel owner was not entitled to summary judgment because the assessor designated two affidavits by a Level III certified assessor-appraiser and commercial and industrial valuation analyst “that raise a genuine issue of material fact whether all the similarly situated properties were actually assessed.”

“This averment, as well as the related averments in his second affidavit, albeit thin on detail, directly contradict Convention HQ’s inference that the Assessor did not assess all the commercial properties’ partially-complete buildings for assessment dates from 2006 through 2019,” Judge Martha Blood Wentworth wrote. “… Therefore, the Court finds that the Assessor has raised a genuine issue of material fact for trial on the equal protection claim… .”

Wentworth ruled similarly on Convention HQ’s due process claim, concluding that whether the assessor assessed some, but not all, of the commercial properties with partially complete buildings is a genuine issue of material fact that must be resolved at trial.

“… (A)s the Court has found for each of its other constitutional claims, there is a real dispute about whether Convention HQ’s property was assessed and other similarly situated properties were not,” Wentworth wrote. She added that it was “premature for the Court to consider whether there are inherent differences between Convention HQ’s property and other similarly situated properties or whether preferential treatment is uniformly applicable and equally available to all those similarly situated.”

As for the arguments raised by the assessor, Wentworth concluded the assessor had not shown he was entitled to summary judgment as a matter of law on Convention HQ’s two Indiana constitutional claims.

It also found the assessor was not entitled to judgment on its motion to dismiss Convention HQ’s 42 U.S.C. § 1983 claim on the basis that it was time-barred, under absolute immunity and on its assertion that Convention HQ did not meet the Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978), pleading requirements for bringing a Section 1983 claim.

“In light of the disposition of the issues set forth above, the Court denies each party’s motion for partial summary judgment,” Wentworth concluded. “Under separate cover, the Court will schedule a case management conference with the parties to discuss the issues remaining for trial.”•

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