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Wednesday, January 12, 2005

Ind. Decisions - Two posted today by Court of Appeals, One by Tax Court

Sean Strong v. State of Indiana (1/12/05 IndCtApp - On Rehearing) [Criminal Law & Procedure]
Bailey, Judge
We issued our opinion in this appeal on November 5, 2004. On December 6, 2004, the State filed a Petition for Rehearing arguing that we had erroneously held that Strong “did not waive his Blakely claim.” Appellee’s Pet. Reh’g at 1. We grant the State’s petition for rehearing for the limited purpose of clarifying this issue, and we affirm our original opinion. * * * [Read for details]

For the foregoing reasons, we grant the State’s Petition for Rehearing for the sole purpose of clarifying the waiver issue. In all other respects, we affirm the Strong opinion. SHARPNACK, J., and MAY, J., concur.

William A. McKinney v. Katherine J. McKinney (1/12/05 IndCtApp) [Family Law; Protective Order]
Bailey, Judge

Case Summary. Appellant-Respondent William A. McKinney (“Husband”) appeals the trial court’s issuance of a protective order against him and for the protection of Appellee-Petitioner Katherine J. McKinney (“Wife”). We affirm.

Issue. On appeal, Husband raises two issues, which we consolidate and restate as whether his state, federal, and statutory procedural due process rights were violated when the trial court ordered him to forfeit the marital residence, which he and Wife jointly owned, without affording him the opportunity to present evidence and cross-examine witnesses. * * *

The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The nature of process due in a given situation turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. The balancing of these factors recognizes that, although due process is not dependent upon the underlying facts of the particular case, it is nevertheless “flexible and calls for such procedural protections as the particular situation demands.” Id. at 334 (quotations omitted).

In the case at bar, both the private interests and the countervailing governmental interests that are affected by the protective order proceeding are substantial. In particular, this action concerns the issuance of a protective order, which includes prohibiting a party from the marital residence, to prevent domestic abuse between a husband and a wife. As such, Husband’s interest in maintaining his property and Wife’s interest in remaining free from abuse are significant. Further, the State’s, i.e., court’s, interest in promoting the protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner, as well as preventing future domestic and family violence is likewise substantial.

When balancing the competing interests of the parties and the State, noting that Wife’s interest is aligned with the State’s, we must also consider the risk of error created by the challenged procedure. See Mathews, 424 U.S. at 333. Here, the risk of error created by conducting a protective order hearing with the respondent and his counsel present is not substantial because he had the opportunity to present his position to the trial court through testimonial evidence at the hearing. In light of the State’s compelling interest, which is consistent with Wife’s interest, coupled with the fact that the challenged procedure did not create a substantial risk of error, Husband received the process that he was due under these circumstances. Accordingly, we find no error under the United States or Indiana Constitutions.

For the foregoing reasons, we affirm the trial court’s issuance of the protective order in question. Affirmed. FRIEDLANDER, J., and DARDEN, J., concur.

Wm. & Dorothy Long v. Wayne Twp. Assessor (1/12/05 IndTaxCt) [Property Assessment; Statutory Construction]
Fisher, J.
The Petitioners, William and Dorothy Long (the Longs), appeal from a final determination of the Indiana Board of Tax Review (Indiana Board) assessing their real property for the 2002 assessment. The matter is currently before the Court on the Wayne Township Assessor’s (Assessor) motion to dismiss. For the reasons stated below, the Court DENIES the Assessor’s motion. * * *

When a rule of procedure and a statute conflict, the rule will govern. Ziegler v. Indiana Dep’t of State Revenue, 797 N.E.2d 881, 886 (Ind. Tax Ct. 2003) (citing Jackson v. City of Jeffersonville, 771 N.E.2d 703, 705 (Ind. Ct. App. 2002), trans. denied). Consequently, when a taxpayer appeals a final determination of the Indiana Board to this Court, the taxpayer is not subject to the provisions of Indiana Code § 4-21.5-5-13, but rather to the provisions of Indiana Tax Court Rule 3(E).

The Longs have informed this Court that they requested the agency record from the Indiana Board on April 30, 2004, and that they received notice from the Indiana Board that the record was prepared on June 2, 2004. Pursuant to Indiana Tax Court Rule 3(E), the Longs had thirty days after receiving that notice to file the record with the Court. They filed the record on June 7, 2004 – well within the time frame prescribed by Tax Court Rule 3(E).

CONCLUSION. For the above stated reasons, the Assessor’s motion to dismiss is DENIED. A separate opinion, in which the Court will decide the merits of the Longs’ appeal, is forthcoming. SO ORDERED this 12th day of January, 2005.

Posted by Marcia Oddi on January 12, 2005 12:00 PM
Posted to Ind. App.Ct. Decisions