Column: Fighting hen’s tooth and nail over a Bloomington plan commission seat

The latest twist in the ongoing legal dispute over a seat on Bloomington’s plan commission came two weeks ago, when the city of Bloomington asked the local judge to allow for an interlocutory appeal of the judge’s first significant ruling.

The proud bird is part of a local backyard flock in Bloomington’s Elm Heights.

That ruling was to deny Bloomington’s motion to dismiss the case of Andrew Guenther, who is laying claim to the plan commission seat—by virtue of an appointment made by Monroe County GOP chair William Ellis. It’s normally a mayoral appointment. Chris Cockerham is Bloomington mayor John Hamilton’s pick for the commission.

Based on the ruling, the possibility of swapping out Cockerham for Guenther is still in play.

An interlocutory appeal is one that is made to the court of appeals in the middle of a case, on an intermediate lower court ruling, instead of waiting for the judge to make a final ruling.

Under Indiana’s trial rules [Indiana Appellate Rule 14(B)(1)], the local judge has to certify the ruling to be appealed, so that a request can be made of the court of the appeals to accept jurisdiction.

The whole thing is discretionary. The two sides get to argue over whether the local judge should certify his ruling so that the court of appeals can decide if it wants to hear the case.

Whether the judge should certify his order to allow an interlocutory appeal is the same question that came up in 2017 in connection with a different recent high profile local case. That was Bloomington’s lawsuit against the governor of the state, over the annexation law enacted that year by the General Assembly, as a part of its biennial budget bill. The case is still waiting for a decision from Indiana’s Supreme Court.

For the 2017 case, it was the state that wanted the local judge to certify his ruling, so that a request could be made to the court of appeals. The state had made a motion to dismiss, based on the idea that the governor was the wrong person to sue. It’s the issue that eventually drew all of the focus of supreme court justices during January’s oral arguments.

In 2017, the local judge certified his order so that an interlocutory appeal could be made, but the court of appeals declined to accept jurisdiction.

The upshot is that in 2017, Bloomington was arguing against certification of the judge’s ruling. And that’s the opposite side of the legal fence from its position in the plan commission case.

And on that side of the fence, there are no chickens. But three years ago, those birds were scratching around in Bloomington’s legal papers.

In 2017, Bloomington argued against the state’s bid for interlocutory appeal by citing previous cases describing the frequency of such appeals. “Discretionary interlocutory appeal is the exception, not the rule,” Bloomington’s objection states on its first page. It continued, “The First Circuit Court of Appeals has described interlocutory appeal as being as rare as hens’ teeth.”

Bloomington’s 2017 objection wraps up 10 pages later with a kick-out that also includes critters: “Discretionary interlocutory appeals are rare beasts. They should only be used when necessary.”

Arguing the opposite side of the interlocutory appeal question in the dispute on the plan commission seat, Bloomington spotlights the criteria for such an appeal. For example, an interlocutory appeal can be granted if it involves “a substantial question of law, the early determination of which will promote a more orderly disposition of the case.”

Bloomington says that the local judge’s ruling denying its motion to dismiss has “… broad implications not just for the parties to this litigation, but for all citizens and municipalities in Indiana.”

That’s based on the idea that the judge’s ruling opens the question of what counts as party affiliation for all local boards and commissions across the state that have a partisan balancing requirement under state law.

A crucial question in the case: For a board or commission that has a partisan balancing requirement, is a member required to have some party affiliation or other? Bloomington says no, the member of such a board doesn’t need to have a party affiliation. Ellis and Guenther say yes, the member does need to have a party affiliation.

Both Guenther and Cockerham, the two who lay claim to the plan commission seat, are now affiliated with the Republican Party. The crucial legal question is connected to the seat’s predecessor, Nick Kappas, who lacked any party affiliation.

How common is it across the state of Indiana that an appointee to a local board or commission lacks any party affiliation, when the board or commission has a partisan balancing requirement?

That statistical frequency could be a part of special judge Erik Allen’s analysis for deciding whether the interlocutory appeal can be requested. If he agrees with Bloomington, that it’s a common circumstance, it would tend to weigh in favor of granting Bloomington’s motion.

It would tend to weigh against Bloomington’s motion, if Allen thinks such appointees are odd ducks.

2 thoughts on “Column: Fighting hen’s tooth and nail over a Bloomington plan commission seat

  1. We have many folks with no party affiliation. Some who choose not to vote in primaries so that their affiliation is unknown. Some are affiliated with Libertarian or Green Parties, or are simply Independents. So should all of those people be denied the opportunity to serve merely because they don’t identify as a Democrat or Republican.

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