Bloomington files for dismissal of case over disputed plan commission seat

In the pending lawsuit over the rightful appointee to a city plan commission seat, the city of Bloomington filed a motion on Monday to have Andrew Guenther’s claim dismissed, based on the idea that Guenther lacks standing to file the lawsuit.

Bloomington’s claim that neither Guenther nor Republican county chair William Ellis have standing is based on Bloomington’s contention that even if the facts alleged by Guenther and Ellis are assumed to be true, they “are incapable of supporting relief.”

In the lawsuit, would-be plan commissioner Guenther and 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.

Guenther and Ellis say that Guenther is the rightful appointee to the seat, under Indiana state law, which says: “The county chair of the political party of the member whose term has expired shall make the appointment.”

Bloomington’s argument for dismissal hinges on the fact that “the member whose term has expired,” namely Nick Kappas, was not a Republican.

Cockerham has already served as planning commissioner for one meeting, in early June.

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, who is not affiliated with any party. Kappas’s term expired at the end of 2019.

The controversy over the plan commission seat is a partisan one, because of the statutory requirement that the five mayoral appointments on the nine-member commission have a partisan balance. That means that no more than three can be of the same political party.

It doesn’t mean any of them have to be a Republican or a Democrat. But whoever the rightful appointee is to the disputed seat, it can’t be a Democrat, because three of the other four are already Democrats. Brad Wisler is the sole Republican.

Cockerham and Guenther are currently Republicans, although it’s disputed as part of the lawsuit whether Cockerham was a Republican at the time he was appointed.

Guenther’s claim to the seat is based on Ellis’s assertion that he, as GOP county chair, had the right to make the appointment. And Guenther was Ellis’s pick. Ellis’s claim to that right is based on the state statute that says, “The county chair of the political party of the member whose term has expired shall make the appointment.”

Bloomington’s argument for dismissal is based on the simple fact that Kappas was not a Republican. That means, Bloomington says, that Ellis is not “the county chair of the political party of the member whose term has expired,” thus did not have the right to make the plan commission appointment.

Bloomington contends that the facts alleged by Guenther and Ellis “are incapable of supporting relief,” which mean that they lack standing to bring the claim, and on that basis asks the court to dismiss the case.

What might make the case more complex is an issue not addressed in Bloomington’s motion or brief. It’s the question of whether Kappas, as someone unaffiliated with any party, met the statutory requirement to serve on the plan commission in the first place.

Bloomington’s argument for dismissal highlights not just the fact that Kappas wasn’t a Republican but also the fact that he was unaffiliated with any party. The motion for dismissal and the accompanying brief in support of the motion, point out that fact that the partisan balancing requirement for the plan commission is not expressed in terms of the Democratic Party and Republican Party.

Bloomington’s brief says, “Contrary to what Petitioners imply, there are more than two political parties in Indiana. Additionally, many individuals hold office without a political affiliation.”

Bloomington’s brief also says, “The Indiana Code and BMC anticipate that appointees may be from parties other than Democrat and Republican. Neither Indiana Code, Section 36-7-4-207(a)  nor BMC Section 2.13.010  require party affiliation, they only limit the maximum number of members of a single political party.”

But Guenther’s claim to the plan commission seat is based on a different section of Indiana Code from the one that sets forth the maximum number of plan commission members who can be affiliated with a single political party.

Although the section of the state code that defines a plan commission, does not require a party affiliation, a different code section, on which Guenther’s claim is based, appears to impose one. Indiana Code Section 36-1-8-10 says that one of the two conditions “must apply” to an appointee to a group like a plan commission that has a partisan balancing requirement:

(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.

Bloomington’s brief contends that Guenther and Ellis have made an argument that Kappas’s seat must “default” back to Republican appointment because his predecessor on the plan commission, Chris Smith, was a Republican.

Bloomington says that Guenther and Ellis are trying to add language to the state code to cover a situation like the one with Kappas, where the departing members does not claim any party affiliation: “[Ellis and Guenther] ask this Court to read a requirement into the statute granting authority to the predecessor party of the departing member when the departing member claims no party affiliation or is an Independent.”

It appears to be true that the state statute does not have language to cover a procedure for replacements when a departing member doesn’t have a party affiliation. Presumably that’s because the statute appears to impose a requirement that a plan commission member who has a mayoral appointment also have a party affiliation of some kind.

One question the judge might end up deciding is whether Kappas should have been required under the statute to have a party affiliation, and if so, whether the lack of a statutorily-required party affiliation by a departing member of the plan commission can be remedied through this lawsuit.

Hearing the case is Erik (Chip) Allen, a Greene County circuit court judge who was appointed special judge in the case, after two Monroe County judges recused themselves.

Republican Allen was appointed to the court in 2006 by Republican Governor Mitch Daniels. Allen was elected unopposed in the general election of 2018.

Based on Indiana’s rules of trial procedure  it looks like Ellis and Guenther, who are represented by local attorney Carl Lamb, will have 20 days to respond to Bloomington’s motion for dismissal.

The motion for dismissal was submitted by assistant city attorney Daniel Dixon, who was hired into the city’s legal department in April.