Petition for Writ of Certiorari — Splittorff v. Aigner (No. 07-1198)

rt, U.S.

6% a Sia

071198 JAN 2 8 2008

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

FRANCIS W. SPLITTORFF

Petitioner,

Vv.

JERRY AIGNER, PAM AIGNER, BEVERLY

CHILDS, AND WARRICK COUNTY INDIANA

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

INDIANA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Robert R. Faulkner

Counsel of Record

400 Court Street

P.O. Box 4208

Evansville, IN 47724

(812) 464-3966

Counsel for Petitioner

QUESTION PRESENTED

I

Did the Indiana Court of Appeals’ opinion

below contravene the authority of this Court’s

opinion in Jones v. Flowers, 547 U.S. ___ 126

S.Ct. _—« 164 L.Ed.2d. 415, 426 (2006), other State

Courts, and various Federal Circuit Courts of Appeal

in conformity with the Jones opinion.

I

Did the Indiana Trial Court and Indiana Court

of Appeals’ violate Francis W. Splittorff’s

(hereinafter “Splittorff’) procedural due process

rights by so readily finding implied waiver of

constitutional rights.

I.

Did the Indiana Trial Court and the Indiana

Court of Appeals render a portion of the Indiana Tax

Sale Statute, specifically I.-C. 6-1.1-25-4.6(h),

unconstitutional on procedural due process and equal

protection grounds by holding that it strictly limits

one whose property has been sold at tax sale to the

sole remedy of a sixty (60) day window of time to

take an appeal, directly from issuance of the tax deed

while affording other litigants broader appellate

nights.

il

PARTIES TO THE PROCEEDINGS

Petitioner is Francis W. Splittorff.

Respondents are Jerry Aigner, Pam Aigner and

Beverly Childs, who were plaintiffs in the Trial

Court and Warrick County, which is a political

subdivision of the State of Indiana. Respondents

were appellees in the Indiana Court of Appeals.

CORPORATE DISCLOSURE STATEMENT

No party to the proceedings is a corporation.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

CORPORATE DISCLOSURE STATEMENT

TABLE OF APPENDICIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING OF THE

PETITION

A. The indiana Court of Appeals’ opinion below

contravened and effectively repudiated the authority

of this Court’s opinion in Jones v. Flowers, 547 U.S.

___:126S8.Ct___—«164. L.Ed.2d. 415, 426 (2006)

iV

and other Federal Circuit Courts of Appeal in

conformity with the Jones pinion. The Indiana

Supreme Court was presented with the opportunity

to correct that result but

PE ig ed ihre oi dornetnenacacs vcuewtsaecuercaen 14

B. The Indiana Trial Court and Indiana Court of

Appeals’ violated Splittorff's procedural due process

rights by so readily finding he had impliedly waived

subsiantial constitutional nghts....................... 19

C. The Indiana Trial Court and the Indiana Court of

Appeals rendered a portion of the Indiana Tax Sale

Statute, specifically I.C. 6-1.1-25-4.6(h),

unconstitutional as being violative of Splittorff’s

procedural due process and equal protection rights.

TABLE OF AUTHORITIES

Able v. Bacarisse, 131 F.3d 1141, 1143 sea Cir.

Adsani v. Miller, 139 F.3d 67, 76-77 (2™ Cir,

1998)(arbitrary denial of appeal is also due process

EE ENE RIES Soe eI mPa rite RO ee od RR RT 24

Atorie Air v. F_A.A., 942 F.2d 954, 959 (5™ Cir.

Bank of America v. Giant, 93 Cal.Rptr. 626, 631-632

a NN I ics vient sniesineaisiidcrnccncutinsinsigrsinsnesustibiwanineieette 15

Benoit v. Panthaky, 780 F.2d 336, 339 (3™ Cir.

Bowyer Excavating Inc. v. Commissioner, Indiana

Department of Environmental Management, 671

N.E.2d 180, 183-184 (Ind.Ct.App. 1996) (Trans.

RE RN Biase ee wba ates Rectan ake ta oe eee anes 26

BP Amoco Corp. v. Szymanski, 808 N.E.2d 683, 690

le I NI eta Sa slscecente andl bana oueeiionsdeeniicocmnany 25

Collins v. Collins, 805 N.W. 2d 410, 413-414

| SRE DEI ere ee ee aN 26

Darling v. Martin, 827 N.E.2d 1199, 1202

kee ee i | 8) en 25

vi

Davis Oil Co. v. Mills, 873 F.2d 774, 788 (5" Cir.

7, Sep aR RAICURE arate EHO RSS ROUSE SR ERR DEER? 21

Diversified Invs., LLC. v. US Bank, NA, 838 N.E.2d

536, 545 (Ind. Ct. App. 2005)(trans. denied).................0...2. 26

Dusenberry v. Dusenberry, 625 N.E.2d 458, 461-462

CR Be i vais hersepsincanedosbsiccesesnnisnnrdsecapiebsodccsereserenns 22

Elizondo v. Read, 588 N.E.2d 501, 504 (Ind. 1992).........00. 15

Gete v. I.N.S., 121 F.3d 1285, 1293 (9™ Cir. 1997)........00000: 20

Goshtasby v. Board of Trustees University of

Illinios, 141 F.3d 761, 771 (7™ Cir. 1998) .0.....c.ccccceeseeeeseeees 26

Grobien v. Lombardy, 765 F.Supp. at 860 ...............0cs00 16,22

In Re: Foreclosure of liens, 922 P.2d 73, 76 (Wash.

a aces aca ash eaanialall 21,22

In Re: Pontes, 310 F.Supp.2d 447, 458 (D.R.I. 2004).......... 18

In Re: Sienkiewicz, 900 F.2d 206, 208 (9" Cir. 1990).....21,22

Johnson v. U.S. Department of Agriculture, 734 F.2d

74, 784 (11™ Cir. 1984).......... DES CTER Rate BARAT AS 20

Jones v. Flowers, 547 U.S. 126 S.Ct. 164

DBZ, 415; SEO CLOG) onan ivcsctinevecvosscoresorssse 1,14,15,16,17,22

Jones v. State of Michigan, 525 F.Supp. 636, 641

(S.D.Mich. 1981)(AfP'd 705 F.2d 454) .0...ceeseeeeeeeee 24

vil

Lake James Fire Department, Inc. v. Burke County

Oneida Indian Nation of New York v. Madison

N.C. 149 F.3d 277, 280 (4 Cir. 1998).........ccseeseeees, eo,

Luessehnop v. Clinton County, New York, 466 F.3d

FO NN sastecislaricis steed a taesiitoniodersingunincssees 15

4

Lynk v. LaPorte Superior Court, No. 2, 789 F.2d

554, 565 (7™ Cir. 1986).......... eR AAAS eT OE aR RT Re 24

Martin v. Amoco Oil Co., 679 N.E.2d 139, 144-145

(Ind.Ct.App. 1997)(affirmed in relevant part, Martin

| v. Amoco Oil Co., 696 N.E.2d 383, 386 (Ind. 1998))........... 20

Mennonite Board of Missions v. Adams, 462 US.

791, 795, 77 L.Ed.2d 180, 185, 103 S.Ct. 2706

CPE FP uh yiassniicic daca em sabicbinensieaasideieceeia ui opsavatnivnsressounis 14,16

Monsanto v. Ruckelshaus, 753 F.2d 649, 654 (8"

ele eI isa: sa Sia vicnsciah ok dtd eaunintee naan edibadeatnde insane: 20

N_L.R.B. v. Heyman, 541 F.2d 796, 801 (9" Cir.

PT Dicievnkskchucicinsibutinn ip cc disivadicihadmanan pasa lieuapentenibniedions 27

Nose v. Attorney General of U.S., 993 F.2d 75, 79

OO a an 20

O’Brien v. Port Lawrence Title and Trust Company,

688 N.E.2d 1136, 1141 (Ohio.Com.Pl. 1997)............ eee 16

Oneida Indian Nation v. Oneida County, 423

F.Supp-26 285, 290 CN.D.N.Y; 2006) ..........:.csccccesrsccesennes 17

County, 401 F.Supp. 219, 230 (N.D.N.Y. 2005 .............. 17,18

Vili

Plemons v. Gale, 396 F.3d 569, 573 (4" Cir. 2004)... 15,16,18

Ross Appeal, 366 Pa. 100, 107, 76 A.2d 749, 753

(FF ickecicssssnicnvcituiniyseiiiadvianiliaheneininignnaal 19

Schwartz v. Dey, 665 S.W.2d 933, 925 (Mo.banc.

SOE ccicsercsinicnvtiphanehsdnciereqniinteiblaetsniiirs liiadlautibianwiniesevesiugule 16

Sonderman v. Remington Construction Company

FNC WES FRAN Sas WII) ti eilcinsbs ictvcserinssvcesisestixieveiniania 18

St. George Antiochian Christian Church vy.

Aggarwal, 603 A.2d 484, 490 (Md. 1992) oo. eee eeeeeeees 16

Tracy v. County of Chester, Tax Claim Bureau,

489 A.2d 1334, 1339 (Pa. 1985)............cccccccccccessseserececees 18,19

Van Raben Homes Inc. v. Dakota View Estates, 546

IN WZ GAS, BSF CUED. BIG oocsccvevsicsiiscnnsescesnciscavseecensconscton 22

Yoder v. Elkhart County Auditor, 632 N.E.2d 369,

372 (Ind. 1994)(Trans.Den.)(Cert.Den.)..................ceee eee 14

INDIANA STATE STATUTES

Fee a isiicscsncorasebcniessciaevenendoeendtceasnenaieaianiaaaae 26

Be so vivibedcic one sicciacccodes tivanbasnandeovqieenenuaaeeaaana 4

BO Bais cs crs oni iviveca dures desnscemldideqpaunninncdoahinaaaaaae 4,6,7,8

Fe hisses eeicicdsesesncacedespsaeutcdeceosestannbencn ena 5

Fer MID. Sivcace oc hssciies cs cneacidechnvvecendocemesessenaswapenenantaanieenan 6

BR eR FEE ve vecesrenescie ccscaccoce ics ck assessudnupesusueesiaenataieiilgleineannn 8

Uo PI sieve secs ecensnnedecentéstonsavineaservansapeieiaaen 17

BA GE Bek ciscniess ccecstsinwnacenesdojassucaanieeie 1, 23 ,24, 25

ix

U.S.C.

IT ia ncn sbcedadbdiredsiadatoven tees vosevssncevesepiotnieusetel 2

i itasitasscatictaien sy eenuinenereonvinvieoeenbelivaeeenls 3

PROCEDURAL RULES

United States Supreme Court Rule 29.4(c) .............cesceceee 3

EY CD HENNE SSUES os cccesscoseescvnevascconebocecessceredecrsevens 2

SONY REOUD UNE OURS D cpviersiscevsncevsssovsreesssoesevevesvosentressens 25

CONSTITUTIONAL PROVISIONS

\

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TABLE OF APPENDICES

Appendix A. - Opinion of the Indiana Court of

Appeals decided April 26, 2007..............s0.008 2

Appendix B -— May 22, 2006 Order of the Pike

County Indiana Circuit Court ..................66- 17.

Appencis C — June 13, 2006 Order of the Pike

County Indiana Circuit Court Quieting Title and

Possessoin of Real Estate................ccceeeecoees 19

Appendix D — Order of Indiana Supreme Court

denying Splittorff's Petition to transfer............. 23

IN THE

SUPREME COURT OF THE UNITED STATES

FRANCIS W. SPLITTORFF

Petitioner,

Vv.

JERRY AIGNER, PAM AIGNER, BEVERLY

CHILDS, AND WARRICK COUNTY INDIANA

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE INDIANA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Petitioner Francis .W. Splittorff (hereinafter

“Splittorff’), by counsel Robert R. Faulkner,

respectfully petitions for a writ of certiorari to

review the judgment of the Indiana Court of Appeals

in this case.

OPINIONS BELOW

The opinion of the Indiana Court of Appeals

is not reported. It is reproduced in Appendix A at

App. p. 2. The July 2, 2007 order of the Indiana

Court of Appeals denying rehearing simply stated,

“APPELLANTS’ PETITION FOR REHEARING

DENIED” and is not reproduced in the appendix due

to its brevity. The order of the Indiana Supreme

Court denying Transfer is reproduced in Appendix D

at App. p. 23. The opinions of the Trial Court

granting Respondents’ Motions for Summary

Judgment are reproduced in Appendix B and

Appendix C at App. p. 17 and p. 19 respectively..

JURISDICTION

The Indiana Court of Appeals entered its

opinion on April 26, 2007. Petitioner then timely

filed a Petition for Rehearing on May 25, 2007

which was denied on July 2, 2007. Petitioner then

filed a timely Petition to Transfer to the Indiana

Supreme Court on August 1, 2007 which was denied

on November 1, 2007. Petitioner has filed this

Petition within ninety (90) days as required by

Supreme Court Rule 13(1). Therefore, this Court

has jurisdiction pursuant to 28 U.S.C. § 1257.

The constitutional issues discussed herein

were raised by Splittorff in his Amended Cross-

Claim against Warrick County and in his filings in

the summary judgment litigation The Trial Court

did not address those arguments, (Appendix B and C

hereto). The constitutional issues discussed herein

were raised by Splittorff at the appellate stage in his

Brief of Appellent and further discussed and argued

in his Reply Brief of Appellant, Petition for

Rehearing and Petition to Transfer the Indiana

Supreme Court. Neither the Indiana Court of

Appeals nor the Indiana Supreme Court addressed

the merits of Splittorffs constitutional issues,

(Appendix A and D hereto).

The provisions of 28 USC § 2403 (b)

Pursuant to Rule 29.4 (c) of the rules of the United

States Supreme Court, the Attorney General of the

State of Indiana is being served with three (3) copies

of this Petition and Appendix.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment 5 to the constitution of the United

States states as follows:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment by a grand jury, except in cases arising

in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same cffense to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself; nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation.”

Section 1 of the Amendment 14 to the Constitution

of the United States states as follows:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they

reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.”

The primary Indiana Statute at issue herein is I.C. 6-

1.1-25-4.6 as follows:

Petition to court for issuance of tax deed: court

orders; refunds; effects of tax deed; appeal

Sec. 4.6. (a) After the expiration of the

redemption period specified in section 4 of this

chapter but not later than six (6) months after the

expiration of the period of redemption:

(1) the purchaser, the purchaser's assignee, the

county executive, or the purchaser of the certificate

of _ sale under IC 6-1.1-24 may; or

(2) in a county where the county auditor and

county treasurer have an agreement under section

4.7 of this chapter, the county auditor shall, upon the

request of the purchaser or the purchaser's assignee;

file a verified petition in the same court and under

the same cause number in which the judgment of

Sale was entered asking the court to direct the county

auditor to issue a tax deed if the real property is not

redeemed from the sale. Notice of the filing of this

petition shall be given to the same parties and in the

same manner as provided in section 4.5 of this

chapter, except that, if notice is given by publication,

only one (1) publication is required. The notice

required by this section is considered sufficient if the

notice is sent to the address required by section

4.5(d) of this chapter. Any person owning or having

an interest in the tract or real property may file a

written objection to the petition with the court not

later than thirty (30) days after the date the petition

was filed. If a written objection is timely filed, the

court shall conduct a hearing on the objection.

(b) Not later than sixty-one (61) days after the

petition is filed under subsection (a), the court shall

enter an order directing the county auditor (on the

production of the certificate of sale and a copy of the

order) to issue to the petitioner a tax deed if the court

finds that the following conditions exist:

(1) The time of redemption has expired.

(2) The tract or real property has not been

redeemed from the sale before the expiration of the

period of redemption specified in section 4 of this

chapter.

(3) Except with respect to a petition for the

issuance of a tax deed under a sale of the certificate

of sale on the property under IC 6-1.1-24-6.1, all

taxes and special assessments, penalties, and costs

have been paid.

(4) The notices required by this section and

section 4.5 of this chapter have been given.

(5) The petitioner has complied with all the

provisions of law entitling the petitioner to a deed.

The county auditor shall execute deeds issued under

this subsection in the name of the state under the

county auditor's name. If a certificate of sale is lost

before the execution of a deed, the county auditor

shall issue a replacement certificate if the county

auditor is satisfied that the original certificate

existed.

(c) Upon application by the grantee of a valid tax

deed in the same court and under the same cause

number in which the judgment of sale was entered,

the court shall enter an order to place the grantee of a

valid tax deed in possession of the real estate. The

court may enter any orders and grant any relief that

is necessary or desirable to place or maintain the

grantee of a valid tax deed in possession of the real

estate.

(d) Except as provided in subsections (e) and (f),

if:

(1) the verified petition referred to in subsection

(a) is timely filed; and

(2) the court refuses to enter an order directing

the courity auditor to execute and deliver the tax

deed because of the failure of the petitioner under

subsection (a) to fulfill the notice requirement of

subsection (a);

the court shall order the return of the amount, if any,

by which the purchase price exceeds the minimum

bid on the property under IC 6-1.1-24-5(e) minus a

penalty of twenty-five percent (25%) of that excess.

The petitioner is prohibited from participating in any

manner in the next succeeding tax sale in the county

under IC 6-1.1-24. The county auditor shall deposit

penalties paid under this subsection in the county

general fund.

(e) Notwithstanding subsection (d), in all cases in

which:

(1) the verified petition referred to in subsection

(a) is timely filed;

(2) the petitioner under subsection (a) has made

a bona fide attempt to comply with the statutory

requirements under subsection (b) for the issuance of

the tax deed but has failed to comply with these

requirements;

(3) the court refuses to enter an order directing

the county auditor to execute and deliver the tax

deed because of the

failure to comply with these requirements; and

(4) the purchaser, the purchaser's successors or

assignees, or the purchaser of the certificate of sale

under IC 6-1.1-24 files a claim with the county

auditor for refund not later than thirty (30) days after

the entry of the order of the court refusing to direct

the county auditor to execute and deliver the tax

deed; the county auditor shall not execute the deed

but shall refund the purchase money minus a penalty

of twenty-five percent (25%) of the purchase money

from the county treasury to the purchaser, the

purchaser's successors or assignees, or the purchaser

of the certificate of sale under IC 6-1.1-24. The

county auditor shall deposit penalties paid under this

subsection in the county general fund. All the

delinquezit taxes and special assessments shall then

be reinstated and recharged to the tax duplicate and

collected in the same manner as if the property had

not been offered for sale. The tract or item of real

property, if it is then eligible for sale under IC 6-1.1-

24, shall be placed on the delinquent list as an initial

offering under IC 6-1.1-24.

(f) Notwithstanding subsections (d) and (e), the

court shall not order the return of the purchase price

or any part of the purchase pprice if:

(1) the purchaser or the purchaser of the

certificate of sale under IC 6-1.1-24 has failed to

provide notice or has provided insufficient notice as

required by section 4.5 of this chapter; and

(2) the sale is otherwise _ valid.

(g) A tax deed executed under this section vests in

the grantee an estate in fee simple absolute, free and

clear of all liens and encumbrances created or

suffered before or after the tax sale except those

liens granted priority under federal law, and the lien

of the state or a political subdivision for taxes and

special assessments that accrue subsequent to the

sale. However, the estate is subject to all easements,

covenants, declarations, and other deed restrictions

and laws governing land use, including all zoning

restrictions and liens and encumbrances created or

suffered by the purchaser at the tax sale. The deed is

prima facie evidence of:

(1) the regularity of the sale of the real property

described in the deed;

(2) the regularity of all proper proceedings; and

(3) valid title in fee simple in the grantee of the

deed.

(h) A tax deed issued under this section is

incontestable except by appeal from the order of the

court directing the county auditor to issue the tax

deed filed not later than sixty (60) days after the date

of the court's order

STATEMENT OF THE CASE

A. Facts

Petitioner seeks review of the ruling of the

Indiana Court of Appeals holding that Splittorff had

waived his right to challenge any deficiencies in

issuance of a tax deed for his property by failing to

comply with sixty (60) day time limitation and

specific procedure imposed by Indiana Statute.

This matter was decided on Summary

Judgment by the Trial Court. Splittorff had

designated evidence to the court as to the following:

Splittorffs homestead had been divided into two

separate Parcel Identification Numbers, which under

Indiana Statute are assigned by the Warrick County

Auditor. Splittorff had been having some difficulty

in getting Warrick County to send tax bills to his

correct address for the subject property. As early as

April 1998 Warrick County was sending tax bills

and notices for a different parcel to his correct

address at 7488 Jenner Road, Chandler, Indiana,

47610. On August 7, 2000 Splittorff submitted an

address correction request to the Warrick County

Auditor for the subject property to make the proper

’ address for purposes of tax bills 7488 Jenner Road,

Chandler, IN 47610. Splittorff was unsuccessful at

10

getting the County Treasurer and Auditor to send tax

bills to the correct address. Notwithstanding the

address correction request submitted on August 7,

2000, in 2001 the tax statements for the 2000 pay

2001 taxes were mailed to the former owners in St.

Charles, Missouri. During this general period of

time Splittorff would periodically come to the

Warrick County Auditor’s office and to the Warrick

County Treasurer’s office to ascertain the status of

tax obligations and would pay any obligations

discovered to be owed. On or about August 7, 2000

Splittorff redeemed the subject property from a prior

tax sale paying to Warrick County six hundred

twenty four dollars fifty cents ($624.50). The

redemption amount was $489.03 and Splittorff

believed the additional amounts paid above and over

the $489.03 were to be applied to any installments

then due and amounts which had been assessed but

not yet due which would have been sufficient to pay

at least two additional installments above and over

what Splittorff had believed the redemption amount

to be.

Prior to the 2001 Warrick County Tax Sale

Splittorff did not receive tax bills from Warrick

County at his mailing address of 7488 Jenner Road

leading up to the tax sale of his property. On August

31, 2001 Warrick County filed application for

judgment and order of sale for Splittorff's property

among others. At approximately the general time

period of the 2001 Tax Sale at which the

Respondents/Plaintiffs purchased a _ tax sale

11

certificate to the subject property an individual who

identified herself as Marilyn from the Warrick

County Treasurer’s Office contacted Splittorff and

left a message on Splittorffs answering machine

indicating that the taxes for the subject property had

been paid and she was not certain where the tax bills

had been sent. Respondents/Plaintiffs purchased a

tax sale certificate to Splittorff's property at the

September 26, 2001 Warrick Tax Sale. On August

27, 2002 plaintiffs filed their verified petition for tax

deed. Splittorff did not receive any notice from the

Warrick County Clerk’s office concerning the tax

sale of the subject real estate. On October 1, 2002

the Warrick Circuit Court issued the first of two

documents captioned “Order for Tax Deed” for the

real estate. On October 8, 2002 the Warrick County

Auditor issued a “Tax Deed” to the subject property.

On December 4, 2002 the Court entered its second

document captioned “Order for Tax Deed” identical

to order entered on October 1, 2002.

As of April 17, 2003 Warrick County still

had Lois L. Brooks of St. Charles, Missouri listed as

the owner of the subject real estate. On September

19, 2003 Edward W. Johnson on behalf of Splittorff

sent to the Warrick County Auditor Correspondence

accompanying a payment of $10,500.00. In making

this redemption it was Splittorff's understanding and

belief that the redemption was applicable to the

improvements and the real estate which is the

subject of this action.

B. Statement of Proceedings and Disposition

in the Courts Below

This matter was initiated with the filing of the

Plaintiffs’ Complaint to Quiet Title and Possession

on December 4, 2003 in the Warrick Superior Court.

On January 28, 2004 Appellant Splittorff filed his

answer, affirmative defense, counterclaim and cross

claim. On February 9, 2004 Plaintiffs’ filed their

answer to Splittorff's counterclaim. On April 22,

2004 the matter was venued to the Pike Circuit

Court. On February 21, 2005 defendant Warrick

County filed its answer to Splittorffs cross claim.

On March 8, 2005 Warrick County filed for leave to

amend its answer to Splittorff's cross claim which

was granted on March 14, 2005. On March 21, 2005

Warrick County filed its first amended answer to

Splittorff’s cross claim. On March 25, 2005 Warrick

County filed its motion for partial summary

judgment and supporting materials as to Splittorff’s

cross claim. On April 21, 2005 Splittorff filed a

motion tor leave to amend his cross claim which was

granted on April 22, 2005. On May 23, 2005

Warrick County filed its answer to Splittorff's

amended cross claim. Pursuant to extension of time

granted by the Trial Court, Splittorff filed his

response to Warrick County’s motion for summary

judgment, motion to publish depositions and

affidavit of Francis Splittorff on June 20, 2005. On

June 20, 2005 the Court granted Splittorff's motion

to publish depositions and ordered that the

13

depositions of Splittorff, Jerry Aigner and Leslie

Childs be published. On June 28, 2005 Warrick

County filed it reply brief in support of its motion

for summary judgment as to Splittorff's cross claim.

On January 30, 2006 Warrick County filed its

second motion for summary judgment. As Warrick

County’s second motion for summary judgment was

not signed it was mailed back to Warrick County’s

counsel and refiled on February 9, 2006. Having

been granted an extension of time to respond to

Warrick County’s second motion for summary

judgment, Splittorff filed his response thereto and

Splittorff's motion for summary judgment on March

2, 2006. On March 22, 2006 Plaintiffs filed their

motion for summary judgment and supporting

materials. On March 22, 2006 Warrick County filed

its reply to Splittorff’s response to Warrick County’s

second motion for summary judgment and Warrick

County’s supplemental designation of evidence. On

April 24, 2006 Splittorff filed his response to

Plaintiffs’ motion for summary judgment. On May

19, 2006 the Trial Court conducted a hearing on all

pending motions. On May 22, 2006 the Trial Court

granted Warrick County’s motions for summary

judgment and the plaintiffs’ motion for summary

judgment. On June 13, 2006 the court entered its

order quieting title and possession of real estate. On

June 19, 2006 Splittorff filed his notice of appeal

and motion for stay..of order. On July 13, 2006 the

Trial Court Clerk filed her notice of completion of

clerk’s record. After the parties filed their respective

briefs, on April 26, 2007 the Indiana Court of

l4

Appeals rendered its non-published opinion. On

May 25, 2007 Splittorff filed his Petition for

Rehearing which was denied on July 2, 2007.

Splittorff then filed a timely Petition to Transfer to

the Indiana Supreme Court on August 1, 2007 which

was denied on November 1, 2007.

REASONS FOR GRANTING OF THE

PETITION

A. The Indiana Court of Appeals’ opinion below

contravened and effectively repudiated the

authority of this Court’s opinion in Jones v.

Flowers, 547 U.S.___—-126 S.Ct. _—- 164 L.Ed.2d.

415, 426 (2006) and other Federal Circuit Courts

of Appeal in conformity with the Jones pinion.

The only evidence designated to the Trial

Court of any notice given Splittorff prior to the tax

sale was a copy of one unclaimed certified mail

receipt. Before taking an action which will affect an

interest in life, liberty or property protected by the

due process of the Fourteenth Amendment the State

must provide notice reasonably calculated under the

circumstances to apprise interested parties of the

pendancy of the action and afford them an

opportunity to present their objections. Yoder v.

Elkhart County Auditor, 632 N.E.2d 369, 372 (Ind.

1994)(Trans.Den.)(Cert.Den.), Mennonite Board of

Missions v. Adams, 462 U.S. 791, 795, 77 L.Ed.2d

180, 185, 103 S.Ct. 2706 (1983). Even if Warrick

County had given notice by publication that, of

15

itself, is insufficient, Jd. Published notice alone in

the absence of actual notice is no more than feint, /d.

Noting many State and Federal Courts have reached

the same conclusion, this Court has specifically held

that when the government learns its attempt at notice

has failed, due process requires the government to do

something more before real property may be sold at

tax sale. Jones v. Flowers, 547 US. __ 126

S.Ct..-—s—« 164 -L.Ed.2d. 415, 426 (2006)(citations

omitted). Chief Justice Roberts then goes on to

point out that Indiana law is not in accord with that

holding. /d. (citing Elizondo v. Read, 588 N.E.2d

501, 504 (Ind. 1992)). The proceedings below

clearly illustrate that the Courts of the State of

Indiana do not adhere to this Court’s holding in the

Jones v. Flowers case cited above. The members of

this Court commented in Jones that they would not

think that one who actually desired to inform a real

property owner of an impending tax sale of his

property would do nothing more when a certified

letter sent to the owner is returned unclaimed. /d.

164 L.Ed.2d. at 427. This Court flatly rejected as

sufficient notice that consisted of no more than

unclaimed certified mail. Jones v. Flowers, 164

L.Ed.2d 428. There, two different notices were sent

by certified mail, came back unclaimed and notice

was given by publication. /d. 164 L.Ed2d at 423.

This was found to be a due process violation. /d. 164

L.Ed2d at 434, (see also Luessehnop v. Clinton

County, New York, 466 F.3d 259, 270 (2 Cir. 2006)

applying Jones v. Flowers) and Plemons v. Gale,

396 F.3d 569, 573 (4" Cir. 2004)). State courts have

16

reached the same result. Bank of America v. Giant,

93 Cal.Rpir. 626, 631-632 (Cal.Ct.App. 2000), Sz.

George Antiochian Christian Church v. Aggarwal,

603 A.2d 484, 490 (Md. 1992). The lack of notice

to Splittorff before selling his property at tax sale

violated Splittorff’s due process rights.

The Indiana Court of Appeals adopted the

Respondents’ argument that since Splittorff may

have had some familiarity with the tax sale process

he should have known the property might be subject

to being sold or had been sold and therefore failure

of notice was irrelevant. Splittorff in response

pointed out that any familiarity he may have had

with the tax sale process arose directly out of

Warrick County’s continued, long standing refusal to

send tax bills and notices to his correct address.

Further, Respondents’ argument in this regard has

been universally rejected by this and many other

courts. A party’s ability to take steps to safeguard its

interests does not relieve the state of its

constitutional obligations. Jones v. Flowers, 164

L.Ed.2d at 429, Mennonite Board of Missions v.

Adams, 462 U.S. at 799, 77 L.Ed.2d at 188, Plemons

v. Gale, 396 F.3d at 574, Schwartz v. Dey, 665

S.W.2d 933, 935 (Mo.banc. 1984), O’Brien v. Port

Lawrence Title and Trust Company, 688 N.E.2d

1136, 1141 (Ohio.Com.Pl. 1997), Grobien v.

Lombardy, 765 F.Supp. at 860. Splittorff's or any

other taxpayer’s familiarity or lack of familiarity

with the tax sale process does not excuse failure of

constitutionally required notice.

17

It is also apparent that one basis for the

court’s opinion was a belief, with the benefit of 20-

20 hindsight, that Splittorff should have done more

to save his property from tax sale. While Splittorff

disputed that proposition, the fact that an owner

should have been more diligent does not excuse

constitutionally inadequate notice. Jones v. Flowers,

164 L.Ed. 2d at 430.

Even if Splittorff, as argued by Respondents

below, received notice in late June 2002, that did not

constitute adequate notice nor did it resurrect a void

tax sale. As noted above, notice “before” a tax sale

is a pre-requisite to the validity of a tax sale.

Further, as argued extensively in the Indiana state

courts, the purported notice provided in late June

2002 was factually inaccurate and misleading by

among other things misrepresenting the redemption

amount and the date the petition for tax deed would

be filed.

In addition, notice sent in late June 2002

notifying of a September 27, 2002 redemption

deadline does not adequately provide the opportunity

to redeem within one year as provided by the tax

sale statute at I.C. 6-1.1-25-4(a). Notice of the

redemption period given well after the tax sale,

which has the effect of abbreviating the statutory

period of redemption constitutes a due process

violation, Oneida Indian Nation v. Oneida County,

423 F.Supp.2d 285, 290 (N.D.N.Y. 2006), Oneida

18

Indian Nation of New York v. Madison County, 401

F.Supp. 219, 230 (N.D.N.Y. 2005). Giving such

belated notice of right of redemption after the right

has become burdened with interest, penalties,

attorney fees, title research fees and Court costs

associated with redemption or resisting the sale

effectively deprives the taxpayer of the right itself

and makes the right of redemption a mere

shibboleth, Jn Re: Pontes, 310 F.Supp.2d 447, 458

(D.R.I. 2004). It matters not that private parties are

charged with giving such “notice” rather than the

County as their participation in the tax sale process

make them government actors, Plemons v. Gale, 396

F.3d at 572 n.3.

It appears that Indiana Courts have never

recognized a concept which should be intuitive and

which other jurisdictions have specifically

recognized and articulated, that the primary purpose

of the tax sale law is not to divest owners of their

property, but to provide a method for collecting

taxes, Sonderman v. Remington Construction

Company Inc., 603 A.2d 1, 8 (N.J. 1992). Justice

Flaherty of the Pennsylvania Supreme Court

articulated this principle very eloquently stating:

“Somehow, over the years, taxing authorities

have lost sight of the fact that it is a

momentous event under the United States and

Pennsylvania Constitutions when a

government subjects a citizen’s property to

forfeiture for non-payment of taxes. We have

19

had occasion before to note that we hold no

brief with wilful, persistent and long standing

tax delinquents, but at the same time, we have

also observed that the “strict provisions of the

Real Estate Tax Sale Law were never meant to

punish taxpayers who omitted through

ovevsight or error...to pay their taxes.” Ross

Appeal, 366 Pa. 100, 107, 76 A.2d 749, 753

(1950). As this Court stated in Hess v.

Westerwick, “the purpose of tax sales is not to

strip the taxpayer of his property but to insure

the collection of taxes.” 366 Pa. 90, 98, 76

A.2d 745, 748 (1950)., Tracy v. County of

Chester, Tax Claim Bureau, 489 A.2d 1334,

1339 (Pa. 1985).

If Justice Flaherty had been presiding in this

case, it would not be necessary for Splittorff to ask

this court to grant Certiorari to uphold this

fundamental principle.

B. The Indiana Trial Court and Indiana Court of

Appeals’ violated Splittorff's procedural due

process rights by so readily finding he had

impliedly waived substantial constitutional rights

Splittorff had objected extensively in the

Trial Court to the unconstitutionality of the

Appellees’ actions. The unconstitutionality of notice

was further raised and discussed in his Brief of

Appellant. Notwithstanding this record the Indiana

Court of Appeals brushed aside Splittorffs

20

constitutional claims as waived. The law does not

presume the waiver of constitutional nghts, Lake

James Fire Department, Inc. v. Burke County N.C.

149 F.3d 277, 280 (4" Cir. 1998), Gete v. LN.S., 121

F.3d 1285, 1293 (9" Cir. 1997). | There is a

presumption against waiver of due process rights,

Johnson v. U.S. Department of Agriculture, 734 F.2d

74, 784 (11" Cir. 1984), Monsanto v. Ruckelshaus,

753 F.2d 649, 654 (8" Cir. 1985). An effective

waiver of a constitutional right has been expressed

as an “intentional relinquishment or abandonment of

a known right or privilege”, Atorie Air v. F.A.A., 942

F.2d 954, 959 (5" Cir. 1991). A waiver of a due

process right must be voluntarily, intelligently and

knowingly made, Martin v. Amoco Oil Co., 679

N.E.2d 139, 144-145 (Ind.Ct.App. 1997)(affirmed in

relevant part, Martin v. Amoco Oil Co., 696 N.E.2d

383, 386 (Ind. 1998)), Nose v. Attorney General of

U.S., 993 F.2d 75, 79 (5™ Cir. 1993), Lake James

Fire Department, Inc. 149 F.3d at 280. In both

criminal and civil cases due process rights may

ordinarily be waived only if it is established by clear

and convincing evidence that the waiver is

voluntary, knowing and intelligent, Gete, 121 F.3d at

1293. A claimed waiver of the constitutional right to

due process is examined with the strictest of

scrutiny, Atorie Air v. F.A.A., 942 F.2d at 959.

Courts indulge every reasonable presumption against

waiver, /d, Gete v. .N.S., 121 F.3d at 1293, Nose v.

Attorney General of U.S. 993 F.2d at 79. The record

here contains no evidence that Splittorff waived due

process or other constitutional rights. The 5"

21

Circuit specifically rejected the Indiana Court of

Appeals’ approach in its reliance upon the legal

fiction of implied waiver of due process rights to

cure constitutional defects in notice. Davis Oil Co. v.

Mills, 873 F.2d 774, 788 (5™ Cir. 1989). This court

should grant Certiorari and incorporate such a

holding in its opinion.

Splittorff’s challenge to the jurisdiction of the

tax sale Court to enter its order for issuance of tax

deed and to the validity of the order and deed were

also rejected as waived by the Indiana Court of

Appeals. The concept of jurisdiction was inherently,

directly implicated by Splittorff’s objections to lack

of notice which, in this case, was even inferior to

that which was rejected as inadequate in Jones v.

Flowers cited above. Chief Justice Roberts at the

very beginning of the opinion writes “Before

[emphasis added] a State may take property and sell

it for unpaid taxes, the Due Process Clause of the

Fourteenth Amendment requires the government to

provide the owner ‘notice and opportunity for

hearing appropriate to the nature of the case.’”

Jones v. Flowers, 164 L.Ed.2d. at 423. Requiring

notice “before” selling property for unpaid taxes

necessarily therefore makes notice a jurisdictional

prerequisite. Constitutionally inadequate notice to

the owner of a property sold at a tax foreclosure is a

jurisdictional defect. Benoit v. Panthaky, 780 F.2d

336, 339 (3 Cir. 1985). This jurisdictional concept

applies to statutory notice requirements as well. /n

Re. Sienkiewicz, 900 F.2d 206, 208 (9" Cir. 1990),

22

In Re: Foreclosure of liens, 922 P.2d 73, 76 (Wash.

1996), Van Raben Homes Inc. v. Dakota View

Estates, 546 N.W.2d 843, 847 (N.D. 1996). This

jurisdictional defect is not waived by failure to

redeem. Van Raben Homes Inc., 546 N.W.2d at 846-

847. In such circumstances the tax sale and tax deed

are void. Jn Re: Foreclosure of Liens, 922 P.2d at

76, In Re: Sienkiewicz, 900 F.2d at 208, (see also

F._D.LC. v. Lee, 130 F.3d 1139, 1143 (5" Cir. 1997)

holding tax sale of property void because sheriff's

failure to give statutorily required notice to and

obtain consent of F.D.I.C.). The statute of

limitations for an action to set aside a tax sale will

not run for a sale conducted without constitutionally

adequate notice. Grobien v. Lombardy, 765 F.Supp

856, 859 (D. Virgin Islands 1991)(upholding delay of

6 years in challenge to tax deed). These authorities

teach that the arbitrary statutory deadlines imposed

by the legislature and Indiana Court of Appeals do

not remedy the due process violation occasioned by

the failure of notice and do not trump Splittorff’s due

process right to notice.

Splittorff's challenge to the jurisdiction of the

tax sale Court to issue the order for issuance of tax

deed was also inherent in his allegation that the order

and resulting tax deed are null and void. A claim

that a judgment is void necessarily implicates an

attack on the trial court’s personal or subject matter

jurisdiction. Dusenberry v. Dusenberry, 625 N.E.2d

458, 461-462 (Ind.Ct.App. 1993). In this matter, the

pi

Court of Appeals has made an exception for

aggrieved owners of properties sold at tax sale.

The record in this matter itself demonstrates

the absurdity of the Indiana Trial Court’s and the

Indiana Court of Appeals’ presumption of waiver of

Splittorff’'s constitutional rights. The Trial Court

and Indiana Court of Appeals apparently believe the

illogical propositon that Splittorff, at a time when

his property could be redeemed for a few hundred

dollars, sat idly by and knowingly, willingly did

nothing instead electing to litigate this matter all the

way to the United States Supreme Court after the

fact. The fact that Splittorff has so vigorously

contested this matter all the way up to this honorable

Court and the fact demonstrated by the record that

Splittorff paid Warrick County more than

$11,000.00 from August, 2000 through September

2003 for two properties on which the total tax bill

was less than $800.00 per year for both, shows that

Splittorff has been ready, willing and able to pay the

taxes and would have but for the County refusing to

send bills and notice to his correct address and

selling the property out from under him

C Indiana Trial Court and the Indiana Court of

Appeals Rendered a Portion of the Indiana Tax

Sale Statute, Specifically I.-C. 6-1.1-25-4.6(h),

Unconstitutional as Being Violative of Splittorff’s

Procedural Due Process and Equal Protection

Rights.

24

The Indiana Trial Court and the Indiana

Court of Appeals rendered a portion of the Indiana

Tax Sale Statute, specifically I.C. 6-1.1-25-4.6(h),

unconstitutional as being violative of Splittorff’s

procedural due process and equal protection rights

by, among other things, holding that it strictly

limited Splittorff, as one whose property has been

sold at tax sale to the sole remedy of a sixty (60) day

window of time to take an appeal, solely directly

from issuance of the tax deed while affording other

litigants broader appellate rights.

On page 6 of the opinion the Indiana Court of

Appeals essentially held that, irrespective of what

debacle had transpired leading to the issuance of a

tax deed, I.C. 6-1.1-25-4.6(h) strictly limits one

whose property has been sold at tax sale to the sole

remedy of a sixty (60) day window of time to take an

appeal, directly from issuance of the tax deed. This

also renders the statute unconstitutional on equal

protection grounds. Having created appellate

remedies the State may not constitutionally

arbitrarily deny them to a particular class of litigants.

Lynk v. LaPorte Superior Court, No. 2, 789 F.2d

554, 565 (7" Cir. 1986), Jones v. State of Michigan,

525 F.Supp. 636, 641 (S.D.Mich. 1981)(Aff'd 705

F.2d 454), Able v. Bacarisse, 131 F.3d 1141, 1143

(5 Cir. 1998), Adsani v. Miller, 139 F.3d 67, 76-77

(2™ Cir, 1998)(arbitrary denial of appeal is also due

process violation).

25

There are various ways in which the absolute

requirement that an aggrieved landowner take a

direct appeal from the order for issuance of tax deed

within sixty (60) days substantially narrows if not

denies such a landowner an effective appellate

remedy. Pursuant to Indiana Trial Rule 60(B), a

Trial Court may relieve a party from an entry of

default, final order or final judgment for mistake,

surprise, or excusable neglect. Darling v. Martin,

827 N.E.2d 1199, 1202 (Ind.Ct.App.

2005)(R’hrg.Den.). Faulty process whereby a party

fails to receive actual notice may. constitute neglect,

mistake or surprise to support relief from judgment.

Id. Pursuant to Trial Rule 60(B) the motion must be

filed within one year. The constraints of I.-C. 6-1.1-

25-4.6(h) makes an exception for landowners’ whose

property has been sold at tax sale who are limited to

a direct appeal initiated within sixty (60) days.

As noted above, Splittorff had taken the

position that the order for issuance of a tax title deed

was void. The Indiana Court of Appeals in this

matter relied upon two of its contradictory holdings

in upholding the tax sale of Splittorfffs property

(Appendix p. 11). It cited authority that an

allegation that a tax deed is void is subject to the

narrow constraints of I.C. 6-1.1-25-4.6(h). B P

Amoco Corp. v. Szymanski, 808 N.E.2d 683, 690

(Ind. Ct. App. 2004) (“Since an appeal to a tax deed

can be filed through either an independent action or

a motion pursuant to T.R. 60(B), both remedies are

subject to the same sixty-day time frame as

26

stipulated in the current I.C. 6-1.1-25-4.6(h)[.]”). On

the other hand it cited authority that an exception to

the sixty-day limit “exists where a motion for relief

from judgment alleges a tax deed is void due to

constitutionally inadequate notice, in which case an

appeal must be brought within a reasonable time

rather than within sixty days.” Diversified Invs.,

LLe. v. US Bank, NA, 838 N.E.2d 536, 545 (Ind. Ct.

App. 2005)(trans. denied). Both of these approaches

put owners of properties sold at tax sale in a

decidedly worse position than other litigants. In

non-tax sale cases, the requirement that motion for

relief from judgment be filed within a “reasonable

time” does not apply to a claim that a judgment is

void. Collins v. Collins, 805 N.W. 2d 410, 413-414

(Ind.Ct.App. 2004). Void judgments can be attacked

directly or collaterally at any time. Bowyer

Excavating Inc. v. Commissioner, Indiana

Department of Environmental Management, 671

N.E.2d 180, 183-184 (Ind.Ct.App. 1996) (Trans.

Den.). Consequently, whichever of the contradictory

holdings of the Indiana Court of Appeals is applied,

owners of property sold at tax sale have much fewer

and narrower remedies to challenge the judgment

and tax deed. Arbitrary and irrational discrimination

violates equal protection clause even under the most

deferential standard of review. Goshtasby v. Board

of Trustees University of Illinios, 141 F.3d 761, 771

(7 Cir. 1998). This statutory discrimination against

owners of properties sold at tax sale violates the

equal protection claus .

27

1.C. 6-1.1-25-4.6(g) creates a presumption

that a tax deed is valid. By placing such an onerous

burden on a landowner challenging the sale of his

property at tax sale, the approach taken by the

Indiana Court of Appeals in this case effectively

renders this an irrebutable, conclusive presumption

by making the presumption practically impossible to

rebut. A statute which creates a presumption which

operates to deny a fair opportunity to rebut it is a due

process violation. N.L.R.B. v. Heyman, 541 F.2d

796, 801 (9" Cir. 1976). Consequently, the statute,

at least as applied here, is violative of procedural due

process.

CONCLUSION

For the foregoing reasons, a writ of certiorari

should be granted.

Respectfully submitted,

Robert R. Faulkner

400 court Street

P.O. Box 4208

Evansville, IN 47724

(812) 464-3966

Counsel for Petitioner