Lawsuit now filed in dispute over Bloomington plan commission seat

On Tuesday, a lawsuit was filed over the disputed seat on Bloomington’s plan commission.

Guennther and Chris Cockerham Screen Shot 2020-06-08 at 4.46.53 PM
Chris Cockerham (left) took his seat on the plan commission on Monday night, as Andrew Guenther (right) asserted a claim to the seat in the Zoom video conference chat window. A lawsuit was filed on Tuesday over the seat.

In the lawsuit, would-be plan commissioner Andrew Guenther and Monroe County GOP chair William Ellis ask the court to grant a writ of quo warranto, which is a challenge to someone’s right to hold office.

In this case, Guenther and Ellis are challenging the right of Chris Cockerham to hold the plan commission seat, based on an appointment by Bloomington mayor John Hamilton, made in early May.

Cockerham has already served as planning commissioner for one meeting, on Monday this week.

In mid-April, Ellis declared his right to make the appointment as chair of the Republican Party. The announcement from Ellis came after Hamilton for several weeks did not fill the vacancy that was left when Hamilton decided not to re-appoint Nick Kappas. Kappas’s term expired at the end of 2019.

How does Ellis argue that he has the authority as Monroe County GOP chair to make a plan commission appointment that’s normally made by the mayor?

The reasoning starts with the fact that five spots on the nine-member plan commission are normally appointed by the mayor. And no more than three of the five can be affiliated with the same political party. On that basis, the seat in dispute cannot go to a Democrat.

Under Indiana Code IC 36-1-8-10  if the mayor doesn’t make the appointment to fill the vacancy, that job falls to the chair of the political party to which the member with the expired term belongs:

(d) Notwithstanding any other law, if the term of an appointed member of a board expires and the appointing authority does not make an appointment to fill the vacancy, both of the following apply:

(1) The member may continue to serve on the board for only ninety (90) days after the expiration date of the member’s term.
(2) The county chair of the political party of the member whose term has expired shall make the appointment.

So one of the key legal issues in the case involves how party affiliation is defined for purposes of the required partisan balance for a plan commission. Was Kappas a Democrat, or a Republican, or neither?

When it comes to counting up Democrats and Republicans on a commission, party affiliation is based on the most recent primary in which the appointee voted, or by certification by the party chair. The statute reads as follows:

[A]t the time of an appointment, one (1) of the following must apply to the appointee:

(1) The most recent primary election in Indiana in which the appointee voted was a primary election held by the party with which the appointee claims affiliation.
(2) If the appointee has never voted in a primary election in Indiana, the appointee is certified as a member of that party by the party’s county chair for the county in which the appointee resides.

By that definition, Nick Kappas had no party affiliation.

Why does Ellis appear to take the position that he is “the county chair of the political party of the member whose term has expired” when that member, Kappas, had no party affiliation?

In the complaint filed with the court, Ellis traces the lineage of the seat back to Kappas’s predecessor, who was Chris Smith. Smith counted as a Republican based on participation in primary elections. In 2003, Smith also ran for the city council’s District 6 seat as a Republican.

Part of the complaint filed with the court involves whether Cockerham was a Republican under the statutory definition at the time he was appointed by the mayor. Cockerham voted in the 2019 Democratic Party’s primary, making him a Democrat at that time.

But Cockerham voted early in the Republican Party primary this year. It looks like the city of Bloomington could be relying on that early vote to establish that Cockerham was a Republican for appointment purposes.

So one of the issues that is likely to be argued about is whether Cockerham’s early vote already counted as voting in the primary, when Election Day, June 2, was still a few weeks off.

Another issue highlighted by the complaint is that the seat in question was vacant for more than 90 days. That’s the timeframe mentioned in the statute for the period during which a plan commissioner can serve past the expiration of their term. Because that time period had lapsed, that gives Ellis the right to make the appointment as GOP county chair, Ellis argues.

Based on Indiana’s rules of trial procedure  it looks like the city will have 20 days to respond to the complaint filed by Ellis and Guenther.

Representing Ellis and Guenther in the case is local attorney Carl Lamb.

Lamb is a Republican, and currently running for the Division 1 circuit court judgeship against Democrat Geoff Bradley. The judge’s seat is currently held by Elizabeth Cure, a Democrat, who is retiring from the bench.