Court of appeals could now weigh in on Bloomington plan commission case

Bloomington’s nine-member plan commission has continued to meet and consider petitions for the last few months, even as litigation proceeds on the question of the rightful appointment to one of its seats.

On Monday, local judge Erik Allen cleared the way for Indiana’s court of appeals to review a ruling in the middle of the lawsuit over the appointment.

Called an “interlocutory appeal,” the court of appeals could now accept jurisdiction over an appeal to review Allen’s ruling, which was made in mid-August to deny Bloomington’s motion to dismiss the case.

The case involves a claim made by Monroe Republican Party chair William Ellis—that the appointment to fill a vacancy on the plan commission at the start of the year was his to make. The claim is based on the idea that Bloomington’s mayor, John Hamilton, did not fill the vacancy in a timely way.

The case will decide who serves on Bloomington’s plan commission: Chris Cockerham or Andrew Guenther. Cockerham, the mayor’s pick, has been serving for a few months now and will continue to serve on the commission until the case is decided. That includes tonight’s plan commission meeting, which starts at 5:30 p.m.

The option for the court of appeals to weigh in, before the proceedings at the lower court are finished, was made possible by Allen’s order, issued on Monday, to certify his order of dismissal.

Ellis’s pick was Republican Andrew Guenther. Hamilton’s eventual pick was Chris Cockerham, also a Republican. One of the disputed issues in the case is whether Cockerham was a Republican at the time of the appointment.

Probably a more significant disputed question of law is whether Nick Kappas, who served a four-year term in the seat through the start of the year, was required to have a party affiliation in order to serve on the partisan-balanced plan commission. Bloomington says no. Guenther and Ellis say yes.

And because Kappas did not have a party affiliation, Guenther and Ellis look to Kappas’s predecessor’s affiliation, which was with the Republican Party.

Bloomington’s motion for dismissal was based on the city’s contention that Ellis and Guenther lacked standing to bring the case, because Kappas was not a Republican.

The court of appeals has the option to reject jurisdiction in the case. Or the court of appeals could accept jurisdiction and issue a ruling that either affirms or reverses Allen’s ruling.

For previous coverage of the case, see The Square Beacon’s archives.