Old B Square

Bloomington launches salvo of lawsuits over remonstrance waivers, one for each area

On Tuesday, Bloomington filed seven separate lawsuits as part of its effort to complete the annexations of seven different territories into the city—one lawsuit for each annexation area.

image of the title page from one of Bloomington's lawsuits

All seven lawsuits appear to be essentially identical. They focus on the question of remonstrance waivers.

Such waivers are legal documents signed by a property owner giving up the right to remonstrate against annexation, in consideration of the ability to purchase sewer service from the city.

The city of Bloomington’s legal position is that any such waivers are valid, despite a 2019 law that invalidated all such waivers signed before July 1, 2003.

The lawsuits filed on Tuesday were expected. And their disposition will be decisive for the remonstrance efforts that were made in each of the seven areas.

The reason the status of the waivers is crucial is that they make the difference between completely successful and completely failed remonstrance efforts in some areas, based on the county auditor’s certified results.

In five of the areas, the 65-percent threshold for property owner signatures was reached, if the 2019 law is applied to some existing remonstrance waivers. Those areas are Area 1C (71.43 percent); Area 2 (71.98 percent); Area 3 (66.67 percent); Area 4 (70.79 percent); and Area 5 (66.67 percent).

The 65-percent threshold means annexation is automatically stopped in those five areas. But if all the waivers are valid, annexation would automatically go through in five of the seven areas. That’s because if all the waivers are valid, those five areas would have less than 51 percent of property owner signatures.

map showing the city of Bloomington and the annexation areas with the percentages of property owner signatures collected in each area For annexation areas that achieve at least 51 percent, but less than 65 percent, property owners can file suit to get a court to review the city’s annexation. In mid-March, property owners in Area 1A and Area 1B took that step.

The court action by Area 1A and Area 1B property owners is contingent on the status of the waivers. So it would not be surprising if some mechanism were found to coordinate and consolidate those cases with the city’s lawsuits filed on Tuesday.

The named defendant in all the cases filed on Tuesday is Monroe County’s auditor, Catherine Smith. That’s because it’s the auditor’s office that is responsible for evaluating remonstrance signatures and providing a count. The auditor’s role included the application of the 2019 state statute that voided pre-2003 waivers.

One of the arguments Bloomington is making is independent of the waiver issues. Bloomington is alleging that Smith counted signatures she should not have, because they were improperly notarized, not delivered on time, or signed by someone who was not eligible to sign.

In its lawsuits, Bloomington is also making constitutional claims about the 2019 law, which voids some remonstrance waivers.

Bloomington claims that the 2019 law violates Indiana’s constitution as well as the U.S. Constitution.

Article I, Section 24 of Indiana’s state constitution reads: “No ex post facto law, or law impairing the obligation of contracts, shall ever be passed.”

And Article I, Section 10 of the U.S. Constitution states, “No state shall … pass any … Law impairing the Obligation of Contracts.”

In addition to its constitutional claims, Bloomington is saying that the 2017 start to the current annexation effort should factor into the application of the 2019 law.

After Bloomington initiated its annexation effort, but before it was complete, in 2017 Indiana’s General Assembly passed a new law that had the effect of stopping Bloomington’s annexation effort. That 2017 law was eventually found to be a violation of Indiana’s state constitution by a 3–2 vote of the Indiana Supreme Court. The ruling came in late 2020.

The 2019 law voiding some annexation waivers was passed while Bloomington was litigating its claims on the 2017 law. In its lawsuits filed on Tuesday, Bloomington says that if the 2019 law were applied to Bloomington’s already in-progress annexation attempts, the General Assembly would “benefit” from its passage of the unconstitutional 2017 law.

On this point, Bloomington doesn’t cite a specific law, but rather a general principle: “Fundamental fairness dictates that Bloomington’s 2017 annexation cannot be scuttled by a 2019 law rendered applicable only due to an unconstitutional delay.”

Although the county auditor is the named defendant in Bloomington’s lawsuits, Indiana attorney general Todd Rokita has also been notified, given the constitutional claims involved.

Bloomington’s annexation ordinances were enacted by the city council in the third week of September 2021, all on 6–3 votes. Under those ordinances, the annexations take effect at the start of 2024. It’s not clear if the litigation connected to the waivers will be resolved before then.

It was in May 2017, when Bloomington started its lawsuit over the General Assembly’s 2017 law.

To reach a conclusion just in the circuit court, before the appeal was made, it took until April 2019—a little less than two years.

Adding in time for appeals, by the time the annexations are supposed to take effect in 2024, it seems likely that the litigation will still be in progress.

It also seems certain that the litigation on annexation will form the backdrop to 2023 mayoral campaigns, will likely be up and running no later than nine months from now. And continued pursuit of the litigation could become a campaign issue.

At a candidate forum in spring 2019, Amanda Barge, who challenged incumbent John Hamilton in the Democratic Party’s primary that year, said as mayor she would be inclined to withdraw from that lawsuit and take a more collaborative approach.

Documents

Resources:

Single OCRed .pdf file of combined areas certified remonstrance results from MC auditor
Google Sheet of combined table of information from auditor’s certified results