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ATTORNEYS FOR PETITIONERS: ATTORNEYS FOR RESPONDENT:
KATHRYN D. SCHMIDT JEFFREY A. MODISETT
JOSEPH E. COSTANZA Attorney General of Indiana
KEVIN E. STEELE Indianapolis, Indiana
BURKE COSTANZA & CUPPY
Merrillville, Indiana ANGELA L. MANSFIELD
Deputy Attorney General
INDIANA TAX COURT
JOHN S. MATONOVICH, personally and as )
North Township Assessor, )
BOOKER BLUMENBERG, personally and as )
Calumet Township Assessor, and )
HANK ADAMS, personally and as St. John )
Township Assessor, )
v. ) Cause No. 49T10-9809-TA-00111
STATE BOARD OF TAX COMMISSIONERS, )
ON APPEAL FROM A REASSESSMENT ORDER OF THE STATE BOARD OF TAX
February 15, 1999
John S. Matonovich and other Lake County township assessors (hereinafter
referred to collectively as Petitioners) have filed an original tax appeal challenging
portions of an order of the State Board of Tax Commissioners (State Board) requiring a
reassessment of all real property in Lake County.See footnote
A division of the State Board, the Division of Tax ReviewSee footnote
studied the need to
reassess real property in Lake County. In its study, the Division of Tax Review
concluded that there was a need to conduct a reassessment of all real property in Lake
County due to an endemic problem with the uniformity of assessments within classes of
property. See Ind. Const. art. X, § 1. On April 1, 1998, in response to the study, the
State Board issued a Reassessment Resolution and Order. In the Reassessment
Resolution and Order, the State Board found sufficient cause to hold hearings
regarding the reassessment of all real property in Lake County.See footnote
On May 19 and 20,
1998, the State Board conducted those hearings.
On August 14, 1998, after considering the evidence presented at the hearings
as well as supplemental evidence, the State Board ordered the reassessment of all real
property in Lake County as of March 1, 2000 pursuant to the State Board's authority
under section 6-1.1-4-9. In its order, the State Board stated that it would hire a
contractor to conduct and oversee the reassessment. (State Bd. Ord. ¶¶ 53-54) The
contractor would be paid out of the Lake County Reassessment Fund.See footnote
In addition, the
State Board ordered Lake County assessing officials to submit a statement detailing
what assistance they could make available to the contractor hired by the State Board.
(State Bd. Ord. ¶ 53). ANALYSIS AND OPINION
On September 11, 1998, the Petitioners filed this original tax appeal. On
October 22, 1998, after hearing the arguments of counsel, the Court enjoined the State
Board from contracting with any entity for purposes of allowing that entity to conduct
the Lake County reassessment. On November 25, 1998, the Petitioners filed a motion
for summary judgment. In its response, the State Board asked the Court to grant
summary judgment in its favor.See footnote
On January 26, 1999, the Court heard the arguments
of counsel on the Petitioners' motion, and the Court now issues its decision. Additional
information will be supplied as necessary.
Although neither party raises the issue of this Court's subject matter jurisdiction,
the Court will do so sua sponte. See City Securities Corp. v. Department of State
Revenue, No. 49T10-9505-TA-00049, slip op. at 4 (Ind. Tax Ct. Dec. 30, 1998).
Nowhere in the statutory provisions governing reassessment orders is there any
mention of judicial review procedures or remedies available to aggrieved parties.
However, under Ind. Code Ann. § 33-3-5-2 (1998), the Court has jurisdiction over initial
appeals of final determinations of the State Board. See Miller v. Gibson County Solid
Waste Management Dist., 622 N.E.2d 248, 249 (Ind. Tax Ct. 1993). The reassessment
order at issue in this case constitutes a State Board final determination for purposes of
section 33-3-5-2, thereby making judicial review of the State Board's reassessment
order available to the Petitioners. See Bowman v. State Bd. of Nursing, 663 N.E.2d
1217, 1219 (Ind. Ct. App. 1996); see also Mills v. State Bd. of Tax Comm'rs, 639
N.E.2d 698, 701 (Ind. Tax Ct. 1994); Johnson County Planning Comm'n v. Ramshead
Corp., 463 N.E.2d 295, 299-300 (Ind. Ct. App. 1984). Consequently, this Court has
jurisdiction over the Petitioners' claims.
Standard of Review
The State Board is afforded great deference when it acts within the scope of its
authority. Accordingly, the Court reverses State Board final determinations only when
those determinations are unsupported by substantial evidence, are arbitrary or
capricious, constitute an abuse of discretion, or exceed statutory authority. See Clark
v. State Bd. of Tax Comm'rs, 694 N.E.2d 1230, 1233 (Ind. Tax Ct. 1998).
Summary judgment is proper only when no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. See Ind. T.R. 56(C);
Dana Corp. v. State Bd. of Tax Comm'rs, 694 N.E.2d 1244, 1246 (Ind. Tax Ct. 1998).
Cross motions for summary judgment do not alter this standard. See Hyatt Corp. v.
Department of State Revenue, 695 N.E.2d 1051, 1052-53 (Ind. Tax Ct. 1998), review
denied. The summary judgment procedure is designed to terminate cases in which
there can be no factual dispute and that may be decided as a matter of law. See
Mayfield v. Continental Rehabilitation Hosp., 690 N.E.2d 738, 740 (Ind. Ct. App. 1998),
trans. denied. Questions of statutory construction are particularly amenable to
resolution by summary judgment. See State Teachers Ass'n v. Board of Sch. Comm'rs,
693 N.E.2d 972, 974 (Ind. Ct. App. 1998). Discussion
In their summary judgment motion
, the Petitioners do not challenge the State
Board's authority to order a county-wide reassessment under section 6-1.1-4-9.
Instead, the Petitioners maintain that portions of the reassessment order are invalid
because the reassessment order unlawfully infringes upon the Petitioners' authority to
conduct that reassessment. Specifically, the Petitioners contend that the State Board
has no authority to conduct the reassessment it has ordered and therefore has no
authority to hire a contractor to do so on its behalf. The Petitioners also contend that
although the State Board has the authority to oversee the reassessment, it does not
have the authority to employ contractors to do so on its behalf.See footnote
Both contentions will
be addressed in turn.
It is axiomatic that as a creature of the Legislature the State Board only has
those powers granted by statute. See State Bd. of Pub. Welfare v. Tioga Pines Living
Ctr., 622 N.E.2d 935, 939 (Ind. 1993), cert. denied, 510 U.S. 1195 (1994); ANR Pipeline
Co. v. Department of State Revenue, 672 N.E.2d 91, 94 (Ind. Tax Ct. 1996); Vehslage
v. Rose Acre Farms, Inc., 474 N.E.2d 1029, 1033 (Ind. Ct. App. 1985) (Administrative
boards, agencies, and officers have no common law or inherent powers, but only such
authority as is conferred upon them by statutory enactment.). In addition, [a]ll doubts
regarding a claim to power by a governmental agency are resolved against the
agency. ANR Pipeline Co., 672 N.E.2d at 94 (citing Adkins v. City of Tell City, 625
N.E.2d 1298, 1302 (Ind. Ct. App. 1993)). However, this rule should not be employed by
courts to unduly restrict authority granted to an agency by the Legislature.
the State Board only has that authority granted to it by statute, in resolving the issues
raised in the Petitioners' summary judgment motion, the Court must look to the statutory
provisions governing the State Board's authority.
One of the duties of the State Board is to see that all property assessments are
made in a manner provided by law. Id. § 6-1.1-35-1(3) (1998); see also Bielski v. Zorn,
627 N.E.2d 880, 886 (Ind. Tax Ct. 1994); cf. Ind. Code § 6-1.1-4-31(a) (1998) (State
Board required to check conduct of a general reassessment). In carrying out this duty,
the State Board has the authority to supervise a county-wide reassessment it has
ordered. Under Ind. Code § 6-1.1-30-10 (1998), the State Board has the authority to
delegate to a field representative or supervisor the board's powers with respect to any
duty of the board. Under Ind. Code § 6-1.1-30-8 (1998), the State Board may employ
field representatives and supervisors so that the State Board may perform its duties.
This gives the State Board the authority to select whomever it chooses to oversee and
supervise the Lake County reassessment.
As for the State Board's authority to conduct the Lake County reassessment, the
law is not so clear. The Court's research has disclosed no statutory provision explicitly
allowing the State Board to conduct the Lake County reassessment. Therefore, the
resolution of this dispute turns on whether the State Board's authority to order that
reassessment and its authority to supervise that reassessment necessarily imply the
authority to conduct that reassessment. From the Court's examination of the specific
statutory provisions relied on by the parties and the general tenor of the laws governing
the assessment of property, the Court concludes that the State Board does not have
the authority to conduct the Lake County reassessment and therefore does not have
the authority to hire contractors to do so on its behalf.
The State Board argues that section 6-1.1-4-9 itself allows the State Board to
conduct the reassessment. However, the plain language of section 6-1.1-4-9See footnote
in terms of the State Board ordering a reassessment, not conducting a reassessment.
This strongly implies that the State Board is not the body charged with actually
conducting that reassessment. In general, a person does not order himself to do
something. Rather, an order is usually given to others to do something. In addition,
the fact that section 6-1.1-4-9 requires the State Board to specify in its order the time in
which the reassessment must be completed strongly suggests that the reassessment is
conducted by someone other than the State Board.
The State Board strenuously argues that the fact that the State Board may order
itself to do something means that, under section 6-1.1-4-9, it may order itself to conduct
the Lake County reassessment. The Court must reject this argument. The State Board
may only order itself to do something that it is permitted to do by law. It may not, under
the guise of ordering itself to do something, expand its powers beyond those granted
by statute. The State Board has great discretion in carrying out its statutory duties;
however, this discretion does not include assuming authority not granted by the
Legislature. See Auburn Foundry, Inc. v. State Bd. of Tax Comm'rs, 628 N.E.2d 1260,
1263 (Ind. Tax Ct. 1994) (As broad as the State Board's discretion is, it ends where
the State Board's authority ends.). To hold otherwise would run afoul of the rule that
an administrative agency only has that authority granted by the Legislature and allow
administrative agencies to add to their powers by bootstrapping. In addition, the State
Board's argument misses the mark. The issue is not whether the State Board may
order itself to do something in one of its orders. Rather, the issue is what the State
Board may order itself to do.
Other statutory provisions inform the Court's analysis as well. Township
assessors are charged with the duty of conducting assessments. See Ind. Code § 36-
see also id. § 6-1.1-1-1.5 (1998) (defining assessing official). This
strongly suggests that township assessors are to conduct reassessments ordered by
the State Board pursuant to section 6-1.1-4-9. Moreover, under Ind. Code § 6-1.1-4-
29(b) (1998), the State Board is required to estimate the cost of conducting a
reassessment. Under subsection 6-1.1-4-29(b), the local assessing officials, the
county assessor, the county property tax board of appeals, and the county auditor may
not spend more than the amount estimated by the State Board. Once again, this
strongly implies that the local officials are the ones engaged in the reassessment.
The State Board invites this Court's attention to Ind. Code § 6-1.1-35-13 (1998).
The Court finds the State Board's invocation of that statutory provision to support its
position unpersuasive. Under section 6-1.1-35-13, the State Board is empowered to
prepare a report, plat, or other property tax record if a local official does not make a
report required by the laws governing assessments or fails to deliver a plat or property
tax record to an appropriate official or board. It is difficult to construe the plain
language of this statutory provision as allowing the State Board to conduct a
A reassessment is not a report, plat, or property tax record. See Peele
v. Gillespie, 658 N.E.2d 954, 958 (Ind. Ct. App. 1995) (In construing statute, it is just as
important to recognize what statute does not say as it is to recognize what it does say.),
trans. denied; see also Garcia v. State Bd. of Tax Comm'rs, 694 N.E.2d 794, 799 (Ind.
Tax Ct. 1998).
Moreover, construing section 6-1.1-35-13 to allow the State Board to conduct a
reassessment would have palpably absurd results. See 3551 Lafayette Road Corp. v.
Department of State Revenue, 644 N.E.2d 199, 201 (Ind. Tax Ct. 1994) (court will not
construe statute to require absurd result). Under subsection 6-1.1-35-13(b), a local
official who fails to prepare a report or to deliver a plat or other property tax record can
be personally liable for the amount it cost to prepare the report, plat, or property tax
record. If the State Board is authorized to conduct a reassessment under this statutory
provision (i.e., because the terms report, plat, or other property tax record include a
reassessment), theoretically, at least, an official could be held personally liable for the
entire cost of the reassessment. If the Legislature intended this result, it would have
said so in much clearer terms.
In addition to these specific statutory provisions, the general tenor of Indiana's
property tax assessment system also militates against the State Board's position in this
case. In general, assessments are done locally, and the State Board, in general, does
not determine the assessed value of property, except in property tax appeals. See
North Park Cinemas, Inc. v. State Bd. of Tax Comm'rs, 689 N.E.2d 765, 771 (Ind. Tax
Ct. 1997). Therefore, an exception to this general rule must be explicit.See footnote
Board has not identified any statutory provision explicitly allowing it to conduct a
reassessment. Accordingly, the general rule that assessments are done locally applies
to the Lake County reassessment.
Based on its analysis of the relevant law, the Court concludes that the State
Board is without the statutory authority to conduct the Lake County reassessment and
therefore cannot delegate this task to a contractor.
In reaching this conclusion, the
Court is not unaware of the State Board's finding that [t]he weight of the testimony and
evidence reflects a widespread recognition that an assessment problem exists in Lake
County. (State Bd. Reassessment Ord. ¶ 14). In response to this problem, the State
Board has ordered a reassessment of Lake County real property.See footnote
Any reading of the
reassessment order makes it quite clear that the State Board believes that it must play
a large role in the conduct of this reassessment because otherwise the reassessment
will not be done in accordance with the law.See footnote
The Court recognizes the State Board's
However, the fact that a problem exists (even one of constitutional magnitude)
does not allow an agency to act in a manner inconsistent with the law. If the State
Board is without the power to conduct the Lake County reassessment, nothing that
happens in Lake County can confer that power. The powers of the State Board are
granted by the Indiana General Assembly, not the exigencies of any particular
For the reasons stated above, the Court GRANTS summary judgment to the
Petitioners in part and to the State Board in part. The Court REVERSES those portions
of the Lake County reassessment order authorizing the State Board to employ
contractors to conduct the Lake County reassessment. The Lake County reassessment
order is hereby REMANDED to the State Board for modification of those portions
authorizing the State Board to employ contractors to conduct the Lake County
reassessment. In all other respects, the Lake County reassessment order is
AFFIRMED. The Court hereby makes permanent its preliminary injunction issued on
October 22, 1998. The State Board is ENJOINED from contracting with any entity for
the purpose of allowing that entity to conduct the Lake County reassessment.
Footnote: 1See Ind. Code § 6-1.1-4-9 (1998).
Footnote: 2See Ind. Code § 6-1.1-33-1 (1998).
Footnote: 3See Ind. Code § 6-1.1-4-10 (1998).
Footnote: 4See Ind. Code § 6-1.1-4-29 (1998).
Footnote: 5The State Board did not file an actual motion for summary judgment. However,
when one party files a motion for summary judgment, the Court may grant summary
judgment to any party upon the issues raised by the motion although no motion for
summary judgment is filed by such party. Ind. T. R. 56(B). Accordingly, the State
Board's summary judgment request will be treated as a motion for summary judgment.
Footnote: 6In their complaint, the Petitioners also alleged that, to the extent the
reassessment order requires that the data collected during the reassessment will be
used for the March 1, 2001 state-wide general reassessment, see Ind. Code § 6-1.1-4-
4 (1998), the order is unlawful because it will infringe upon the Petitioners' duty to
conduct the 2001 general reassessment. However, the Petitioners do not raise this
issue in their summary judgment motion. Consequently, the Court declines to discuss
Footnote: 7The Court notes that the State Board has not issued any regulations
interpreting this statutory provision.
Footnote: 8Section 6-1.1-35-13 also predicates the State Board's ability to act on the
failure of an assessing official to act. Accordingly, the State Board contends that to
make an inaccurate report is to fail to make a report. (State Bd. Resp. Br. at 8). This
contention is without merit. That a report is inaccurate does not mean that it was not
Footnote: 9One example is found under Ind. Code § 6-1.1-14-10 (1998). Under section 6-
1.1-14-10, the State Board is empowered to review an assessment or reassessment of
any property sua sponte. See Joyce Sportswear Co. v. State Bd. of Tax Comm'rs, 684
N.E.2d 1189, 1194 (Ind. Tax Ct. 1997), appeal dismissed; Bielski, 627 N.E.2d at 885-86
(discussing purpose behind State Board's ability to review property assessments under
section 6-1.1-14-10). Because the State Board has expressly disclaimed reliance on
this statutory provision for the authority to conduct a county-wide reassessment, the
Court expresses no view concerning whether the State Board could accomplish a
county-wide reassessment under this statutory provision.
Footnote: 10As Indiana's assessing expert, the State Board is in a unique position to
determine whether the reassessment is in fact warranted, and it is not the place of this
Court to second guess the State Board's decision to order a reassessment in Lake
County, absent the clearest abuse of discretion.
Footnote: 11In its brief, the State Board makes reference to Mr. Matonovich's deposition
testimony and a political pamphlet he circulated to support its contention that the Lake
County reassessment will not be conducted in accordance with the law. The Court
takes no position regarding the remedies available to the State Board if one or more of
the Lake County township assessors fail to follow the law in conducting the Lake
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