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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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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

\
y

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1273%3A1. Public record. Not legal advice.