Disputed plan commission seat: Judge denies Bloomington’s bid to get case dismissed

Ten days ago, on Aug. 5, a hearing was held about Bloomington’s motion to dismiss a lawsuit that could affect the membership the city’s plan commission.

Greene County Courthouse Screen Shot 2020-08-05 at 12.25.18 PM
Greene County courthouse, Bloomfield, Indiana, the home court of special judge Erik Allen, and the scheduled location of the Aug. 5 hearing. The hearing was switched to a telephonic conference. Image links to image source, which is Google Street View.

On Friday (Aug. 14), special judge Erik Allen issued an order that lets the lawsuit go ahead.

Allen denied Bloomington’s motion to dismiss the case in a 125-word order that included a lifting of a previously imposed stay on the discovery process. That means both sides can now proceed with document requests and deposition of witnesses.

On one side are Monroe County GOP chair William Ellis and his pick for city plan commissioner, Republican Andrew Guenther. On the other side is Bloomington’s mayor, John Hamilton, with his pick, Republican Chris Cockerham.

For now, it’s Cockerham, a commercial real estate broker, who serves in the disputed seat. It became vacant at the start of the year when Bloomington’s mayor John Hamilton decided not to re-appoint Nick Kappas to the plan commission.

3-guenther kappas cockerham
From left: Andrew Guenther, Nick Kappas, Chris Cockerham.

When the vacancy persisted through mid-April, Ellis claimed authority under a state statute to make the replacement, and named Andrew Guenther to the seat. Bloomington’s mayor Hamilton did not recognize the authority Ellis was claiming to make the appointment.

Hamilton then made his own appointment to the plan commission, which was Cockerham.

The lawsuit was filed after the first meeting when Cockerham was seated on the commission, in early June.

Five of the seats on a plan commission in Indiana are appointed by the mayor. They have a partisan balancing requirement: No more than three of the five seats can be filled by members of the same party.

Currently serving in the other four seats on Bloomington’s plan commission are three Democrats and a Republican. That means the appointment to the disputed seat cannot be a Democrat.

Ellis claimed authority to make what is normally a mayoral appointment by citing a state law that says if the vacancy is not filled by the mayor, then the county chair of the political party of the member whose term has expired makes the appointment.

Bloomington’s basic legal argument for dismissal rested on an undisputed fact: Kappas is the member whose term expired, and Kappas is not a Republican. It was that fact that led Bloomington to ask for a dismissal of the case, saying that Ellis and Guenther did not even have legal standing to bring the lawsuit.

If Kappas is not a Republican, Bloomington’s argument goes, then the state statute giving Kappas’s party chair the right to make the appointment cannot give the right to the Republican Party chair, which is Ellis.

The wrinkle in the case is that under the statutory definition, Kappas is unaffiliated with any political party. But Ellis and Guenther interpret the state statute defining party affiliation—for purposes of partisan balancing of a plan commission—to mean that an appointee has to have some party affiliation. They argue that because Kappas was unaffiliated with any party, his appointment to the plan commission in 2016 was not valid.

So Ellis and Guenther look to the party affiliation of Kappas’s predecessor, Republican Chris Smith, as the foundation of Ellis’s authority to fill the vacancy left by Kappas.

A key question of law that Allen could wind up deciding in the case: Does the state law defining partisan affiliation for partisan-balanced boards and commissions entail that an appointee have some affiliation or other?

Here’s how the state statute currently reads [IC 36-1-8-10]:

[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.

What is left in front of the court after the denial of Bloomington’s motion is the amended complaint for a writ of quo warranto and a motion for a preliminary injunction against Cockerham’s participation in meetings of the plan commission.

Based on various deadlines in trial court rules, it looks like the timeframe for the next hearing could be a month and a half or so. As of the end of the day on Friday, no next hearing date had been set.

Previous coverage of the disputed plan commission seat is available in The Square Beacon archives.