Case of disputed Bloomington plan commission seat gets final papers filed, now wait begins on court of appeals

On Friday morning, the city of Bloomington filed its last brief with the state’s court of appeals, in the case that will decide who has the rightful claim to a Bloomington city plan commission seat.

Screenshot of the disputed plan commission seat history from the city of Bloomington’s onBoard system for organizing information about city boards and commissions. Image links to onBoard.

Is it Chris Cockerham, the appointment made in summer 2020 by Bloomington’s mayor, Democrat John Hamilton? Or is it Andrew Guenther, the appointment made earlier, in the spring of 2020, by Monroe County GOP chair William Ellis?

Both Cockerham and Guenther are currently Republicans, under the statutory definition of party affiliation. The appointee could not be a Democrat, because that would exceed the limit of appointees who are members of the same political party.

Now starts the wait for the court of appeals to decide how to handle the case. It seems somewhat unlikely that the whole lawsuit would be wrapped up before the plan commission considers the question of an upcoming citywide zone map revision. Cockerham has bee serving on the plan commission since summer 2020.

Bloomington lost its initial motion to dismiss the case, which was filed by Guenther and Ellis last June.

The lower court ruling was made by special judge Erik Allen out of Greene County. Before Allen heard the rest of the case, Bloomington filed its appeal. Such an appeal, filed in the middle of the lower court proceedings, is called an interlocutory appeal.

As the appealing side, Bloomington filed the first brief with the court of appeals. Then came the response from Guenther and Ellis.  Friday’s brief by Bloomington was the reply to Guenther and Ellis’s response.

Bloomington contends that the mayor made a valid appointment to the plan commission last summer in Chris Cockerham, who is a commercial real estate broker.

Further, Bloomington says that Guenther and Ellis don’t meet the basic threshold for bringing a lawsuit on the question. That threshold is called legal “standing” to bring the case.

Because Guenther and Ellis don’t have standing, Bloomington says, the case should be dismissed. The lower court said Guenther and Ellis do have standing.

In its reply brief filed on Friday, Bloomington legal team focused on how a key question of law in the case is part of the nexus of its argument based on standing.

The key question of law involves a state statute that defines what political party affiliation means for a partisan-balanced board like the city plan commission.

The city’s position is that the state law allows for someone to serve on a partisan-balanced board, even if they don’t have a party affiliation.

Monroe County Republican Party chair William Ellis interprets the law in a different way. Ellis says the effect of the statute is to require someone appointed to a partisan-balanced board to pick a side—they have to have some party affiliation or other.

Lacking a party affiliation was Nick Kappas, who held the disputed plan commission seat through 2019, but was not re-appointed at the start of 2020.

Because Kappas had no party affiliation, but was required to have one, Ellis contends, the Republican party affiliation of Kappas’s predecessor decides the question of the appointing authority in favor of Ellis, because the mayor left the seat vacant for more than 90 days.

Kappas’s predecessor was Chris Smith, a Republican.

In Bloomington’s reply brief, the distinction is made between a fact and a “legal conclusion.” It’s only a legal conclusion by Ellis and Guenther, Bloomington says, and not a fact, that Ellis had the right to made the appointment. So the court is not required to assume their claim is true, when settling the question of standing, Bloomington says.

In fact, Bloomington says, the question of standing is tied to the legal conclusion that Ellis had a right to make the appointment, which is based on the interpretation of the state statute that defines party affiliation.

If the statute defining party affiliation for a partisan-balanced board or commission is interpreted to allow for someone with no party affiliation to serve on a partisan-balanced board or commission, then Ellis would not have the authority to make the appointment fill the vacancy left by Kappas. And that means Ellis would not have standing to file the lawsuit, according to Bloomington’s argument.