Questions from Supreme Court justices point to heart of annexation law case involving Bloomington: Was the governor the right person to sue?

In 2017, Bloomington filed suit against Indiana’s governor, Eric Holcomb, over a law enacted by the state legislature as a part of the biennial budget bill.

As Bloomington’s city attorney, Mike Rouker, described the legislation on Thursday morning, during oral arguments in front of Indiana’s Supreme Court, the law “prohibited Bloomington and only Bloomington from taking any further action toward its ongoing municipal annexation…”

Rouker continued: “[I]t prohibited Bloomington and only Bloomington from pursuing any further municipal annexation for a period of more than five years.”

The case was heard by the state’s highest court after Bloomington won a favorable ruling on both of its constitutional arguments in Monroe County’s circuit court. Briefly put, the lower court agreed with Bloomington that the law was impermissible special legislation and that it violated the single-subject rule of the state’s constitution.

A third issue on which the lower court ruled was the question of whether the governor was the right person to sue. The state’s contention that Holcomb can’t be the defendant in such a case was rejected by the Court of Appeals during the lower court proceedings.

On Thursday morning, in front of the state’s highest court, the two constitutional questions did not get aired at all. That’s because the justices interrupted the lawyers on both sides maybe a minute into their presentations to grill them on the issue of the governor’s status as defendant.

Joel Schumm, who’s a clinical professor of law at Indiana University’s Robert H. McKinney School of Law in Indianapolis described it this way for The Beacon: “[T]he justices had tough questions for both sides about whether Governor Holcomb was the proper defendant. I think it’s safe to say that issue is the heart of the appeal.” Schumm attended the hearing with students from his constitutional law class.

Does the lack of any questions from the justices on the constitutional issues mean they’re already sufficiently convinced by Bloomington’s arguments on those topics, which won the day in the lower court?

No, Schumm indicated in an emailed response to a question from The Beacon. “Questions at oral argument highlight concerns of the justices, but it’s risky to predict an outcome based on the questions (or lack of questions),” Schumm said.

Schumm said he thinks Bloomington has a strong special legislation argument, and is likely to prevail—if the court is able to reach that issue.

If the court doesn’t even reach that issue, it would be because the court finds Holcomb was an inappropriate defendant. Then it wouldn’t matter if Bloomington’s arguments on the merits of the constitutional issues are correct. The case would be dismissed.

On the question of Governor Holcomb as a proper defendant, on Thursday justices dosed out skepticism to both sides.

One of the precedents cited during oral arguments was a court of appeals case from 2009 called Stoffel v Daniels. A key part of that opinion reads: “[C]hallenging the constitutional validity of a statutory scheme by bringing a declaratory judgment action against the executive branch official charged with the statute’s implementation is a well-recognized approach. ”

Did the governor qualify as the executive branch official charged with the annexation law’s implementation? Solicitor general Thomas Fisher’s answer was no, because no official is named in the annexation law passed by the General Assembly in 2017 for enforcement of the law.

Here’s part of the exchange between Justice Geoffrey Slaughter and Fisher:

Slaughter: My concern is, really, frankly, what strikes me as an extraordinary argument by the governor that the governor doesn’t have authority. He may win this battle but lose the war, which he has no power unless the legislation says he does. Isn’t that a concern we should have as well?

Fisher: I think what we have to to do is look at what constitutes a proper case in this court or in the state courts in general. And there has never been a case where the court has said or permitted the governor to be sued as an all-purpose defendant.

Slaughter put the same win-the-battle-lose-the-war question to Bloomington’s city attorney Mike Rouker:

Slaughter: Are you at all concerned with the flip side of the question I asked of Mr. Fisher, you might win the battle and lose the war? If we agree with you that the governor does have “take care” authority to enforce the annexation statutes, therefore, he’s a proper defendant here. That you open the door to this governor or any future governor, against the city of Bloomington or any other municipality across the state to start taking an active role in seeing to it annexation statutes are followed and complied with? Is that really something the city of Bloomington is eager to see happen? … That’s like an an astonishing result, frankly.

Rouker: It’s not concerning to us. The annexation statute is incredibly detailed. And we followed the strictures of the annexation statute with meticulous certainty in our 2017 annexation proposal. So we have no concern with anybody who might want to —

Slaughter: So, bring it on?

Rouker: Excuse me?

Slaughter: Bring it on?

One of the questions put to solicitor general Fisher was: If not Governor Holcomb, who was Bloomington supposed to sue? In the state’s briefs, one suggestion put forward was for Bloomington to have sued a remonstrating landowner whose property was set to be annexed into the city.

On Thursday, Fisher floated a new idea: the county surveyor and auditor:

Fisher: Another possibility, candidly, would be the county officials in charge of recording where the tax money goes. I think that’s — in this case, it’s the auditor and the surveyor. They’re the ones where the rubber hits the road, you have an annexation ordinance, they are tasked with the obligation to note where the tax monies go. And, you know, they would be the ones that you would go to and say, here, make this ordinance effective and they would invoke … statute, say, no, that’s invalid and then you’ve got a real live dispute suitable for judicial resolution.

Responding to the idea that the Monroe County auditor and surveyor should have been the ones to be sued, Rouker said later during the arguments:

Rouker: Now, we could go back I guess and name county officials. I’m sure they do not want to be named, having spoken with our friends over at the county. We certainly could try do that. We’d file the same briefs and be back here and we’d probably be receiving some sort of standing argument from the attorney general how the county officials weren’t the correct people to name.

What’s next? According to Professor Schumm, after oral arguments, the justices meet in their conference room to discuss the case, take a preliminary vote, and assign a justice to write the majority opinion. They circulate drafts, and as they’re considered, views can shift, Schumm said.

Chief Justice Loretta Rush, who’d noted Schumm’s attendance, with his class, at the start of the hearing, bookended the roughly 40 minutes of proceedings with a mention of the law students:

And to all of the law students out there today, you were treated to excellent advocacy by both parties. I appreciate the briefing and arguments today. We will be discussing the case and issue an opinion in due course. Thank you very much.

[This lightly corrected transcript came from the closed captioning to the live video stream, with formatting and several corrections made by The Beacon. It’s still rough in spots.]

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