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Sunday, October 23, 2005

Ind. Decisions - Indiana attorney general's office denied a "do-over"

The Indianapolis Star's Sunday column, Behind Closed Doors, has a great item today on the AG's office. It is based on the Indiana Tax Court's Judge Fisher's opinion issued Wednesday in Miller Brewing Company v. Ind. Dept. Revenue. Per the Star:

The Indiana attorney general's office had a unique defense recently in appealing a decision by the Indiana Tax Court. It admitted to ignorance and asked for a do-over.

Judge Thomas G. Fisher, though, wasn't impressed by the extraordinary mea culpa and denied the state's so-called "motion to correct errors."

Andrew Swain, a deputy attorney general, had asked Fisher to reconsider his decision in favor of Miller Brewing Co. and against the Indiana Department of Revenue in a tax case. Trouble was, the state wanted to make a case now that it hadn't made when the case was first heard in 2002.

Swain didn't mince words in describing the miserable job the attorney general's office had done. "The reason we didn't give this (argument) to you the first time, your honor, is, plain and simple, ignorance on the part of the attorney general's office," Swain said. "The attorneys who handled the case before did not understand this case. They didn't understand the law. They did not understand anything about it, and that's absolutely a shock."

Tough, said Fisher, saying lawyers don't get to make arguments later that they didn't make the first time.

The opinion itself contains a longer version of the quote from the oral argument, including:
The attorneys who handled this case before did not understand this case, they didn’t understand the law, they did not understand anything about it, and that’s absolutely a shock, it was shocking to me when I read the briefs in this case and I read the transcript in this case. At one point you asked counsel why all this mattered and whether or not your opinion was going to result in an absurd result and counsel’s response was ‘Your Honor, I didn’t research that point’ and that’s just shameful on our part and I apologize for that[.]
Moreover, as Judge Fisher points out at the beginning of Wednesday's opinion, as a footnote to the case caption of "Order on respondent's motion to correct error":
The Indiana Department of State Revenue (Department) filed its petition for rehearing in this Court on August 24, 2005, and the Court held oral argument on the petition on October 3, 2005; however, a petition for rehearing is inappropriate at this juncture. When this Court hears cases protesting the final determinations of the Department, the Court acts as a trial court. See IND. CODE ANN. § 6-8.1-9-1(d) (West Supp. 2005-2006); Chrysler Fin. Co. v. Indiana Dep't of State Revenue, 761 N.E.2d 909, 911 (Ind. Tax Ct. 2002), review denied. The proper method to challenge a judgment entered by a trial court, prior to filing an appeal, is a motion to correct error. See Ind. Trial Rule 59. Therefore, the Court will treat the Department’s petition as such, referring to it as “motion.”
The Star story adds that "Attorney General Steve Carter, a Republican first elected in 2000, issued a statement saying that those ignorant attorneys who messed up aren't there any more."

Posted by Marcia Oddi on October 23, 2005 07:01 AM
Posted to Ind. App.Ct. Decisions