In a 3–2 decision on the five-member panel, Indiana’s Supreme Court has ruled in favor of the city of Bloomington in a case that was prompted by the state legislature’s passage of a law in 2017 that stopped the annexation process Bloomington was pursuing.
The highest court in the state upheld the lower court’s ruling that the law enacted in 2017 by the General Assembly was unconstitutional, because it was impermissible special legislation, applying uniquely to Bloomington, when general legislation could have been enacted.
Tuesday’s opinion does not appear to take up the other constitutional argument made by Bloomington. That argument was that the 2017 annexation law violated the single-subject rule of the state’s constitution, because it was included as part of the biennial budget bill.
The decision comes almost a year after oral arguments were heard, in early January. City attorney Mike Rouker appeared before the court on behalf of the city.
Bloomington mayor John Hamilton told The Square Beacon, “I am frustrated, of course, that we had to wait three and a half years to have the conclusion that the state legislature overreached, and violated the state constitution, but it is good to have that affirmed.”
As far as restarting an annexation process, Hamilton said, “Nothing is imminent.” He added, “We have to figure out, with advice of counsel and our county counterparts, how to proceed.”
The city issued a press release about the decision early Tuesday afternoon.
The opinion was written by justice Christopher Goff. Chief justice Loretta Rush concurred with Goff’s opinion. Justice Steven David concurred only in the result, but that was enough to make for a majority on the court.
Justice Geoffrey Slaughter dissented, and wrote a separate opinion joined by justice Mark Massa.
The case was heard by the state’s highest court, after Bloomington won a favorable ruling on both of its constitutional arguments in Monroe County’s circuit court. Briefly put, the lower court agreed with Bloomington that the law was impermissible special legislation and that it violated the single-subject rule of the state’s constitution.
A third issue on which the lower court ruled was the question of whether the governor was the right person to sue. The lower court said yes. That was a threshold question for reaching the point of deciding the constitutional questions.
The two dissenting justices agreed with Indiana governor Eric Holcomb’s position that he was the wrong person to sue over this situation, because he was not charged with the responsibility of enforcing the annexation law. The majority view on the court was that the governor has a general “take care” responsibility for enforcing laws.
The dissent did not even get to the point of discussing the constitutional issues, because the dissenting view was that Governor Holcomb was not even a proper defendant for the case. During oral arguments in January, it was clear that the main question of interest for the justices was whether Holcomb was the right defendant.
The argument about the proper defendant is based on the idea of separation of powers.
The dissent reads: “But our affirmative duty to ensure other branches stay within the law comes with its own set of principles—the first of which is to ensure that a case is properly before us. That is what separation of powers means.”
The dissent continues: “It is not a blank check giving courts unfettered authority to ensure other branches toe the line. We have our own, independent obligation to heed that line ourselves. Unfortunately, we cross that line today.”
The majority opinion relies in part on the unique application of the 2017 law to Bloomington in reaching its conclusion that Holcomb was the right person to sue, because it’s the governor who must enforce the law: “The unique features of [the annexation law] show that the Governor enforces the statute pursuant to his general executive power and his duty to take care that the laws are faithfully executed.”
Since 2017, two pieces of legislation have been enacted that make Bloomington’s prospects of picking up where it left off with its 2017 annexation process less than clear cut.
One involves the use of remonstrance waivers. The other involves the retention of fire protection district levy, even after annexation.
In 2019 the state legislature passed a law that voids remonstrance waivers in several circumstances. Such waivers have been attached to deeds in the past as a condition of providing utility service by the city. The new 2019 law means that more property owners would be eligible to remonstrate against a proposed annexation.
For example, remonstrance waivers executed before July 1, 2003 are just void. More recent remonstrance waivers, executed after June 30, 2003, and before July 1, 2019 are subject to certain conditions. If the waiver was not recorded with the county, it is void. More recent remonstrance waivers are void unless they are recorded with the county record in a timely way.
Another law passed in 2019 has the effect of leaving an annexed area as a part of a fire protection district, even after annexation. The fire protection district has to continue to provide fire protection services to the annexed area.
The preservation of the fire district levy and service area was a factor in recent discussions that have led to several townships to join the Monroe Fire Protection District.
In an interview with The Square Beacon on Tuesday, Hamilton pointed out that in the 12 years before he took office no annexations had been done. He’s now been in office for nearly five years without any annexations, because of the state legislature’s action.
Hamilton said, “So that’s a very long period of a growing city, not adjusting its boundaries. And that was, of course, one of the reasons that I felt it was important from the beginning.” He added, “There’s much logic in practical, efficient government to bring urbanized areas into the fold, to be a part of those services that cities provide.”
One city service that some non-city residents already get is sewer service. Non-city residents pay higher sewer rates. So a benefit to being annexed would be lower sewer rates.
The revision to the law on how fire protection district levies work undercuts what would be a standard argument for annexation: Annexed areas get fire protection from the city. About that change to the state law, Hamilton said, “My view is that was not well thought out, but it is what it is.”
Asked what other benefits property owners would still get on annexation to the city of Bloomington, Hamilton pointed to police protection, sanitation pick up, road clearing, and road construction and maintenance. Hamilton said, “I think it’s also fair to say that if you’re just purely thinking about self interest, one of the best places to live is right next to the city boundary. That’s why we have annexation—because there’s something of a freeloader issue. That’s why cities gradually grow, too.”