Andrew Guenther is the rightful appointee to Bloomington’s plan commission, according to a lower court ruling issued on Thursday morning.
The ruling was made by Greene County special judge Erik Allen, who was appointed to hear the case after Monroe County circuit court judges recused themselves.
Judge Allen was elected as a Republican. The case is inherently partisan in character.
In the lawsuit, Monroe County Republican chair William Ellis sought to assert a right under state law provided to a party chair, to appoint Guenther to a spot on the Bloomington plan commission.
Bloomington mayor John Hamilton’s position was that he retained the right to make the appointment, even after leaving the seat vacant for more than 90 days.
In any event, it was undisputed that non-affiliation with the Democratic Party was essential—in order to conform with the partisan balancing requirement for the five mayoral-appointed seats on the nine-member plan commission.
Hamilton’s eventual pick to fill the vacancy—which was created when he chose not to re-appoint Nick Kappas at the start of 2020—was real estate broker Chris Cockerham.
Cockerham has been serving in the seat contested by Guenther since May 2020.
One of the points of judge Allen’s ruling was that Cockerham’s appointment was not valid, because Cockerham was at the time of his appointment a Democrat as defined by state law. The most recent primary in which he had participated was a primary of the Democratic Party.
In a news release issued by Guenther’s side, he’s quoted as saying, “I look forward to serving my community and making Bloomington a better place to live for all residents.” The quote from Guenther continues, “Together, we will build a better Bloomington for the world of tomorrow.”
Guenther is currently a graduate student at Indiana University and serves as the chair of Bloomington’s environmental commission.
Ellis is quoted in the news release saying, “We had full confidence during this court battle that we were in the right,”
The quote from Ellis continues, “The Monroe County Republican Party will always stand up for enforcing the laws of the great State of Indiana, even when it is difficult.” Ellis adds, “Today’s ruling is a victory for all those who believe in the rule of law, and proves that no one—not even Mayor Hamilton—is above the laws of our land.”
The key points of the ruling are:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
1. The appointment of Nicholas Kappas to the Bloomington Plan Commission is hereby declared void ab initio;
2. The appointment of Christopher Cockerham to the Bloomington Plan Commission is hereby declared void ab initio;
3. Christopher Cockerham was a “Democrat” for purposes of I.C. 36-1-8-10 at the time of his appointment to the Bloomington Plan Commission and was not eligible for appointment under the circumstances then existing;
4. William Ellis, as Chairman of the Monroe County Indiana Republican Party, had authority to make the appointment of Andrew Guenther to the Bloomington Plan Commission on April 16, 2020;
5. Andrew Guenther is immediately entitled to the appointed seat on the Bloomington Plan Commission; and
6. Christopher Cockerham is hereby ordered to vacate and relinquish his improperly appointed seat on the Bloomington Plan Commission upon receipt of this Writ of Quo Warranto and Declaratory Judgment.
Two key legal questions in the case were: Is a plan commission appointee in Indiana required to have some kind of partisan affiliation? What is the correct legal remedy for a situation when the mayor does not replace an appointee who lacks a party affiliation?
Judge Allen’s ruling concluded that a plan commission appointee is, in fact, required by Indiana state law to have some kind of affiliation or other, and cannot be independent of any political party. Kappas did not have any party affiliation. That meant, under Allen’s ruling, that Kappas’s appointment was not valid.
If the mayor waits too long to fill a vacancy of a plan commission member, then it’s the chair of the party to which the previous member belonged who has a right under state law to make the appointment.
Allen’s ruling effectively concluded that if a plan commission member like Kappas lacked a party affiliation, then the party affiliation of Kappas’s predecessor would be the determining factor. Kappas’s predecessor was Chris Smith, a Republican.
The ruling on the disputed seat comes nearly halfway into the four-year term for the seat, which started in January 2020.
Background on the lawsuit
The lawsuit against Bloomington mayor John Hamilton over the plan commission seat was filed by Monroe County Republican Party chair William Ellis and his intended plan commission appointee, Andrew Guenther, in June of 2020.
In mid-April of 2020, Ellis declared his right as chair of the Republican Party to appoint Guenther to the seat. The announcement from Ellis came after Hamilton, for several weeks, did not fill the vacancy that was left when Hamilton decided not to re-appoint Nick Kappas, who is not affiliated with any party. Kappas’s term expired at the end of 2019.
After the lawsuit over the plan commission seat was filed, Ellis exercised his statutory authority, in late 2020, to fill a seat on the board of Bloomington Transit. Ellis’s action came after Bloomington’s city council failed to make its appointment in a timely way.
The controversy over the plan commission seat is a partisan one, because of the statutory requirement that the five mayoral appointments on the nine-member commission have a partisan balance.
That means that no more than three can be of the same political party. For the appointment in question, it didn’t mean any of the potential appointees had to be a Republican. But whoever the rightful appointee was to the disputed seat, it couldn’t be a Democrat, because three of the other four were already Democrats. Brad Wisler was the sole Republican.
In the lawsuit, would-be plan commissioner Guenther and GOP chair William Ellis asked the court to grant a writ of quo warranto, which is a challenge to someone’s right to hold office.
Guenther and Ellis were challenging the right of Chris Cockerham to hold the plan commission seat, based on an appointment by Bloomington mayor John Hamilton, eventually made in early May, after Ellis had appointed Guenther.
Guenther and Ellis said that Guenther was the rightful appointee to the seat, under Indiana state law, which says: “The county chair of the political party of the member whose term has expired shall make the appointment.”
A central argument for the mayor was the fact that “the member whose term has expired,” namely Nick Kappas, was not a Republican.
That means, Bloomington said, that Ellis was not “the county chair of the political party of the member whose term has expired,” thus did not have the right to make the plan commission appointment.
Guenther and Ellis countered that Kappas, whose vacant seat was to be filled, did not receive a valid appointment in the first place, because he lacked any party affiliation whatsoever, when he was required to have one under their reading of the state statute.
Both sides agreed that the five mayoral appointees on an Indiana plan commission have to have a kind of partisan balance. Specifically, no more than three can be members of the same party.
The statute that defines plan commissions does not itself say that the appointees must have some party affiliation or other.
The requirement for some party affiliation or other, which Guenther and Ellis see in a different statute, currently reads as follows [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.
Bloomington contended that this statute does not impose a requirement of some party affiliation for plan commissioners. Based on judge Allen’s ruling, the plan commission does have a mandatory requirement of a partisan affiliation.
In order to apply the statute on which Ellis relies for his authority to make an appointment, Ellis needed to be the “county chair of the political party of the member whose term has expired.”
If Kappas’s appointment were considered not valid, then Ellis wanted judge Allen to look to Kappas’s predecessor, who was Chris Smith, a Republican. Essentially that’s what Allen did.
The news release from Guenther’s side says that it’s expected that the lower court ruling will be appealed.
In response to an emailed question from the B Square, Bloomington city attorney and interim corporation counsel Mike Rouker wrote that he could not comment about ongoing litigation.
One point of law has already been sent to the court of appeals—the question of Guenther and Ellis’s legal standing to file the lawsuit. On that interlocutory appeal, the court of appeals ruled against the city of Bloomington in April this year, finding that Ellis and Guenther did have standing.
Bloomington’s possible appeal would likely include a request to stay the lower court’s ruling until the appeal is resolved. Absent an appeal filed by Bloomington and a ruling from the court of appeals to grant a stay, Guenther would attend the next plan commission meeting as a commissioner.
The next meeting of the Bloomington plan commission is set for Dec. 13.
Bloomington mayor John Hamilton will in any event need to fill another upcoming vacancy on the plan commission, because current member Beth Cate will be resigning, in order to accept the job of Bloomington’s corporation counsel.
Cate starts that position on Jan. 10, 2022. She’s filling the vacancy left by Philippa Guthrie, who served in that role through mid-October.
Final documents filed