Meijer Successfully Appeals Property Tax Bill; Millions of Dollars at Stake for Indiana Counties

The Indiana Board of Tax Review recently ruled that a Meijer store located in Indianapolis should have been assessed at the equivalent of $30 per square foot, not at $83 per square foot as originally determined by the Marion County Assessor in 2012. This means Meijer would only be responsible for paying almost one-third less than the original assessment.

The court’s decision covered 9 years of assessments, going back as far as 2002. Therefore, Marion County could owe Meijer a $2.4 million refund. According to Meijer, it will not be pursuing property-tax appeals for all of its Indiana stores. Instead, Meijer is hoping to enter into a settlement agreement with Marion County.

The Marion County Assessor’s office has not yet confirmed whether it will appeal the decision to a higher court. Unless this decision is successfully appealed and reversed, this case will change how all Indiana big-box stores are assessed in the future. In coming to its conclusion, the court agreed with Meijer’s assertion that “big-box” stores should be valued looking strictly at the value of the “box,” not the “highest and best use” value. Valuing the store based only on the value of the “box” means treating all big-box stores the same, whether operational or vacant.

Since millions of tax dollars are at stake, which many counties depend on for revenue, the Indiana legislature was quick to respond on Tuesday, February 17, 2015, with a bill addressing tax bills on big-box stores. The bill, which would require certain special-purpose properties to be assessed based on the cost of construction for the first seven years, unanimously passed the Indiana Senate Tax and Fiscal Policy Committee.

Because the assessed value of commercial property can greatly affect Indiana commercial real estate owners, the attorneys are Bowers Harrison are closely monitoring this issue as it develops. Please subscribe to our blog or check back for more details. If you have any questions regarding the assessed value of your land, or any other real estate issues, please contact us at (812) 426-1231.

Bowers Harrison Partner Greg Granger Elected Warrick County Circuit Court Judge

Bowers Harrison Partner Greg Granger has been elected Warrick County Circuit Court Judge. He won his bid Tuesday night earning nearly 60% of the ballots cast.

Greg, a lifelong Indiana resident, has been an attorney dedicated to his clients for more than 30 years, representing a variety of local residents and businesses in criminal, business, immigration, and sports law matters. He has also served as attorney for the Warrick County Council since 2001.

“The attorneys and staff at Bowers Harrison have been like a second family to me since I moved to the Evansville area more than 28 years ago,” said Greg. “Throughout this period I have had the pleasure of working with many dedicated and extremely talented individuals. As I prepare to commence a new journey in my legal career I will always cherish the friendships and adventures I have experienced during my time at Bowers Harrison.”

Upon hearing the news of Greg’s election, Bower Harrison Partner David Gray had this to say:

“It has been my pleasure to work with Greg for many years. He is an excellent attorney and a good and honorable man. I and everyone else at Bowers Harrison will miss him, but the sting of our loss will be lessened by the knowledge that the good people of Warrick County will be gaining yet another dedicated and capable judge.”

Greg will continue to practice law and represent his clients at Bowers Harrison for the remainder of 2014 as he transitions into his new role as Warrick County Circuit Court Judge beginning January 2015.

One Battle Is Over, But The War Over Energy Production In Southern Indiana Rages On

A few months ago, the Indiana Supreme Court came down with a decision that greatly impacts the ongoing, energy dispute in Southern Indiana.  To be specific, the Supreme Court’s decision upheld a contract between the Indiana Finance Authority (“IFA”) and Indiana Gasification, LLC for the purchase and sale of substitute natural gas (“SNG Contract”). Signed in early 2011, the SNG Contract authorized the construction of a new plant in nearby Rockport, Indiana that would allegedly generate substitute natural gas, bring a substantial number of construction, plant, and mining jobs to the region, and save energy customers money. It was heralded as “big step forward” in achieving Indiana’s goal of “becom[ing] a national leader in homegrown clean energy production,” according to the Natural Resources Defense Council.

Certain advocacy groups and recent studies, however, argue that the SNG Contract will not benefit the region. As background, the $2.65 billion dollar SNG Contract arose out of the Indiana General Assembly’s adoption of pro-SNG legislation starting in 2009. The legislation was intended to address growing concerns about the short supply of natural gas markets and the exponentially increasing prices of that resource. Since that time, however, unforeseen technological advances and increases in production of natural gas have caused supply to rise and prices to drop.  Those market forces have dropped the price of natural gas so much so that the price of synthetic or substitute natural is more expensive than natural gas. Opponents to the SNG Contract now predict that the combination of these recent changes and the SNG Contract will cost Indiana government and Indiana citizens between $1.2 to $1.9 billion dollars in gross domestic product over the next decade and reduce Indiana employment rates.

That dire prediction is why some interested parties recently sought to invalidate the SNG Contract through the court system. Opponents to the SNG Contract argued that the 30-year, $2.65 billion dollar SNG Contract should be deemed invalid and unenforceable because the definition of “retail end use customers” in the SNG Contract was not consistent with Indiana’s Substitute Natural Gas Act (“SNG Act”). The SNG Act requires that the SNG purchased by the government must be allocated to “retail end use customers,” which are defined as customers acquiring energy “at retail for the customer’s own consumption.” The original version of the SNG Contract, however, defined industrial “transport customers” as “retail end use customers,” which opponents to the SNG Contract argued was not consistent with the statutory language of the SNG Act.

Based on that argument, the Indiana Court of Appeals reversed the government’s original approval of the SNG Contract, and in response to the Court of Appeals decision, IFA and Indiana Gasification amended the SNG Contract by deleting the improper definition. All other provisions of the SNG Contract, save that definition, remained untouched. The Court of Appeals denied rehearing of the issue, even after the SNG Contract had been amended, asserting that the SNG Contract had already been invalidated. Upon motion by the IFA and Indiana Gasification, the Indiana Supreme Court of Indiana then granted a transfer so that it could examine the validity of the SNG Contract.

Like the Court of Appeals, the Supreme Court found that the original definition of “retail end use customers” of the SNG Contract was incompatible with the statutory definition laid down in the SNG Act. The Supreme Court then tackled the issue of whether the revised SNG Contract was enforceable. IFA and Indiana Gasification argued that, by amending the definitional language, the definitional problem was no longer a ground to render the SNG Contract invalid. The opponents of the SNG Contract, however, argued that the previous ruling by the Court of Appeals rendering the SNG Contract invalid made the revised SNG Contract “void and unenforceable in its entirety.”

After examining the issues, the Indiana Supreme Court held that the amended SNG Contract properly defined “retail end use customers” and was thereby compatible with the SNG Act. Moreover, the amendment rendered moot the definition issue, which had served as the basis for the appeal. The Indiana Supreme Court further explained that the argument that the SNG Contract was void after the Court of Appeals decision was unsuccessful because, when the Indiana Supreme Court grants a transfer, the underlying opinion of the lower court is, for all purposes, vacated. The Indiana Supreme Court therefore held that “upon [the] Court’s grant of transfer, any invalidation of the [retail end use customers] definitional provision was undone.” Since the SNG Contract was no longer invalid under the Court of Appeals decision and because the SNG Contract had been amended to include definitional language consistent with the SNG Act, the Supreme Court found that the controversy no longer existed and that the SNG Contract remains valid and enforceable.

The Indiana high court’s decision is essentially a win for the proponents of the SNG Contract. Under that decision, the IFA and Indiana Gasification do not have regulatory review and approval of the agreement. That being said, while the opposition to the SNG Contract may have lost the battle in the courts, it is certainly not admitting defeat. The opponents to the SNG Contract could reignite this ongoing dispute in the houses of congress. In January 2013, Indiana Senator Doug Eckerty brought forth Indiana Senate Bill 510, which is intended to void the SNG Contract. While Indiana Senate Bill 510 has already been passed in the Indiana Senate, it has not yet been passed by the house and signed into law. If passed and signed into law, that bill could potentially invalidate the SNG Contract for the Rockport facility and/or jeopardize potential funding for the project. With the recent Indiana Supreme Court decision and the battle in the courts coming to a close, it is possible that the battle over energy production in Southern Indiana could be revving up, with the houses of congress as the new theater of war.

If you have questions pertaining to the content of this article or any other questions about natural resource law, please contact the attorneys at Bowers Harrison.

Indiana’s Expungement Law

In Indiana this year, a new law was passed that makes it easier for individuals, who were arrested or convicted of certain crimes, to restrict the access to those records.  Also, for employers, the law changes the types of questions it may ask of applicants, making it illegal to discriminate against any individual on the basis of a criminal conviction or arrest that has been sealed or expunged.

What is ‘Expungement’ in Indiana?

In Indiana, ‘expungement’ can either mean the court-ordered destruction or sealing of records.  If the records are destroyed, they are no longer available to the general public or any state or federal agency. If the records are sealed, access to them is restricted and may only be released by court order or to a law enforcement officer acting in the course of his or her official duty.

What is the Effect of Indiana’s Expungement Law on Individuals?

Previously, Indiana only allowed criminal records to be expunged if (1) a person was arrested but not charged with a crime, or (2) if a person was arrested and criminal charges were filed but those charges were later dropped because of (a) mistaken identity, (b) no offense was in fact committed, or (c) there was an absence of probable cause. 

With the new law, an individual may have his or her criminal records expunged if 1) there are no charges pending against the individual, 2) his or her driver’s license is not suspended, and 3) he or she has not been convicted of a criminal offense for a certain period of years.  The period of years depends on the level of criminal offense:

  • For an eligible misdemeanor or a Class D felony that was reduced to a misdemeanor, criminal records of that conviction may be expunged after five years from the date of conviction;
  • For a less serious Class D felony, records may be expunged after 8 years from the completion of the sentence, including probation; and
  • For certain serious felony convictions, records may be expunged after 10 years from the completion of the sentence, including any supervised release.

What is the Effect of Indiana’s Expungement Law on Employers?

Employers must now be mindful of the fact that an applicant may have had his or her criminal record expunged and may not use that information against the applicant. While employers may still ask about non-expunged criminal history, the law proscribes the type of question that an employer may ask

Take Note

For individuals, in Indiana, an individual may only file one petition for expungement in his or her lifetime.  The only exception to that rule is if your petition for expungement is denied, you may file another petition after 3 years. For employers, employers may be liable for damages, if they reject an applicant based upon an expunged criminal record.

If you have questions on this issue or any other criminal law issue, please contact us.

Indiana Supreme Court Upholds Indiana’s Cap on Punitive Damages

The Indiana Supreme Court has upheld Indiana’s statutory limit on the amount of punitive damages that may be awarded in a civil action. The Court’s ruling overturned a Marion County Superior Court’s decision that found the statutory punitive damage limit violated the Indiana Constitution.  Punitive damages, sometimes known as “exemplary damages,” are “intended to punish and thereby deter blameworthy conduct” and can be ordered on top of compensatory damages that cover actual losses or costs.

Indiana’s statute on punitive damages places a limit on the amount of punitive damages that may be awarded in a civil action: “A punitive damage award may not be more than the greater of: three (3) times the amount of compensatory damages awarded in the action or $50,000.”  I.C. § 34-51-3-4. The statute proscribes that if a jury awards punitive damages in excess of that amount, the “court shall reduce the punitive damage award to [reflect Ind. Code Section 34-51-3-4].” Further, the statute states that 25% of the reduced punitive damage award goes to the injured party, while 75% of the reduced punitive award goes to the “Violent Crime Victims Compensation Fund.”  I.C. § 34-51-3-6.

In State of Indiana v. John Doe, No. 49S00-1201-CT-14, a jury awarded John Doe $150,000 in punitive damages as part of a judgment in his lawsuit against Father Jonathan Lovill Stewart for childhood sexual abuse.  The Defendant, Stewart, moved to reduce the punitive damages pursuant to the statutory punitive damage limit.  The trial court denied the motion holding that those statutes violated two provisions of the Indiana Constitution: Article 3, Section 1, which requires the separation of governmental powers, and Article 1, Section 20, which guarantees the right to trial by jury in civil case.

In determining Indiana’s statutory limits on punitive damages does not violate the Indiana Constitution’s Right to Jury Trial, the Court cited to its prior decisions upholding statutory caps on compensatory damages in medical malpractice cases and the constitutionality of the allocation provision of the punitive damages statute.  See Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585, 602 (Ind. 1980); see Cheatham v. Pohle, 789 N.E.2d 467, 473 (Ind. 2003).

The Court also held that the judiciary’s power in determining the punitive damages award in civil litigation rests in applying any limits enacted by the legislative branch.  Just “as the legislative branch has broad power to limit common law causes of action,” it has the power to limit remedies of those causes of action, “including punitive damages.”  See Cheatham, 789 N.E.2d at 471.

The Court therefore reversed the trial court’s ruling and remanded the case with the instructions to (1) grant the Defendant’s motion to reduce the punitive damages to the statutory maximum and (2) order that 75% of the reduced punitive damage award be deposited into the Violent Crime Victim Compensation Fund.

 

If you have any questions on this issue or other litigation issues, place contact us.

COURT IS REQUIRED TO ADDRESS THE AWARD OF THE DEPENDENCY TAX EXEMPTION IN DISSOLUTION AND PATERNITY CASES

With tax season beginning, a common question for family law clients is, who is entitled to claim the dependency tax exemption for the child or children for this tax year.  For many clients whose divorce has been finalized or paternity action is complete, this question is answered by the dissolution decree or an order on the paternity action.  Sometimes, however, the dissolution decree or order in the paternity action are silent on this issue or maybe a client is contemplating filing a dissolution or paternity action.  In these scenarios, it is important to understand Indiana law regarding the dependency tax exemption. 

Prior to June 30, 2011, Indiana statutory law did not specify factors that the Court could consider in either a paternity or child support action to determine which parent to award the dependency tax exemption to for a child or children.  However, on July 1, 2011, a new law become effect that requires the Court, in a divorce action (under I.C. § 31-16-6-1.5) or a paternity action (under I.C. § 31-14-11-2.5), to specify which parent of a child may claim the child as a dependent for purposes of federal and state taxes. 

The Indiana Statute now provides a non-exhaustive list of factor that the Court shall consider in determining which parent may claim the child as a dependent.  The Court is to consider the value of claiming the child at the marginal tax rate of each parent, the income of each parent, the age of the child or children, the number of years that the child or children could be claimed as a dependent or dependents, each parent's percentage of the costs of supporting the child or children, financial aid benefit (if any) for postsecondary education and the financial burden (if any) each parent assumed under a property settlement in a dissolution proceeding.  This, of course, is not an exhaustive list but does provide the Court with some guidance on addressing the issue of which parent should be entitled to the dependency tax exemption.

If you have questions on how this may affect you, please contact one of the attorneys in our Family Law and Adoption practice group.

ARE ELECTED OFFICIALS BOUND BY EMPLOYMENT CONTRACTS EXECUTED BY PRIOR, ELECTED OFFICIALS? NOT ALWAYS

The Indiana Court of Appeals recently held that if an employment contract delegates certain statutory authority from a board of commissioners to a hired human resources director – whose contract outlasts a board member’s elected term – the contract may be voided as against public policy.  The Court in Board of Com’rs of Delaware County v. Evans v. Beverly J. Evans, 979 N.E.2d 1042 (Ind. Ct. App. 2012) found that the terms of the employment contract delegated statutory authority to the employee, by making her a “policymaker,” which includes “making policy judgments, ranking and evaluating policy objectives and making choices among competing goals and priorities.”  The Court voided the employment contract declaring that binding a successor elected official to that employment contract “would inhibit the Board, as newly constituted, from exercising the discretionary powers entrusted to it by the electorate.”  While a member of the Court dissented by finding that the employee had a “role in certain discretionary function,” it did not rise to the level of limiting the commissioners overseeing the position.

As a result, both elected officials and their employees that outlast the elected term must recognize that Indiana courts look unfavorably upon any limitation of an elected official’s statutory duties and will go to great lengths to protect those entrusted rights, even if it means voiding an otherwise valid employment contract.

If you have any questions on this issue or other employment law issues, place contact us.

NEW INDIANA PARENTING TIME GUIDELINES EFFECTIVE MARCH 1, 2013

The Indiana Supreme Court has recently approved the long awaited revisions to the Indiana Parenting Time Guidelines (IPTG).  The new IPTG go into effect March 1, 2013 and will not retroactively modify existing parenting time orders.  Instead, parties wanting to follow the new IPTG must file a written agreement with the court or petition to the court for an order adopting the new IPTG.

The changes set forth in the new IPTG are numerous and substantial and cannot all be addressed here.  However, some of the most significant changes include but are not limited to:

Holiday parenting time has been extended to include Martin Luther King Day, Presidents' Days and Fall Break in the list of holidays.  New Year's Eve and New Year's Day are no longer considered separate holidays but are now considered part of Christmas Vacation.  Christmas Vacation has been redefined, and Christmas Eve and Christmas Day parenting time has been modified.

Alternating weekends shall now be maintained throughout the year.  This may result in a parent having three (3) consecutive weekends of parenting time due to a holiday.

The new IPTG define "High Conflict Parents" as those "parties who demonstrate a pattern of ongoing litigation, chronic anger and distrust, inability to communicate about and cooperate in the care of the child, or other behaviors placing the child's well-being at risk."  In these situations, the new IPTG suggest a deviation from the regular parenting time guidelines and the institution of a Parallel Parenting schedule.  While not a permanent arrangement, a Parallel Parenting schedule allows each parent to make day-to-day decisions about the child while the child is with the parent and works to limit communications between the parents.

Our Family Law and Adoption practice group will continue to monitor these recent changes to the IPTG.  If you have questions on this issue or any other Family Law and Adoption issues, please contact us at (812) 426-1231.
 

INDIANA SENATE BILL 6’S PROPOSED CHANGES TO DISSOLUTION STATUTE WOULD MAKE IT CONSISTENT WITH INDIANA’S CURRENT PATERNITY STATUTE

SB 6, which is presently pending in the Indiana Senate after its first reading on January 7, 2013, proposes amending the dissolution statute regarding post-secondary educational need orders.  The bill provides that “[a] child who is receiving child support under an order issued before July 1, 2012, may file a petition for educational needs until the child becomes twenty-one (21) years of age.”  Further, “[a] child who is receiving child support under an order issued after June 30, 2012, may file a petition for educational needs until the child becomes nineteen (19) years of age.”  The proposed bill proposes that it be retroactive to July 1, 2012.

If passed, SB 6 would amend the dissolution statute and make the dissolution statute consistent with Indiana’s paternity statute.  Indiana’s paternity statute was amended in July 2012 to grant the child the ability to file a petition for an educational needs order.  The current paternity statute as amended in July 2012 requires a child receiving child support under an order issued before July 1, 2012 to file a petition for educational needs before the child turns 21 years of age and also requires a child receiving child support under an order issued after June 30, 2012, to file a petition for educational needs before the child becomes 19 years of age.  It is important to note that while SB 6 would make the dissolution statute consistent with Indiana’s current paternity statute involving educational needs order, SB 6 does not effect any other portion of the dissolution statute involving child support or emancipation.

      
Our family law department will continue to monitor this proposed bill and its progress through the Indiana Legislature.  If you have questions on this issue or any other Family Law and Adoption issues, please contact us at (812) 426-1231.