In a ruling issued Friday morning, Indiana’s court of appeals reversed the decision of a lower court that found Andrew Guenther had been rightfully appointed to Bloomington’s plan commission seat in spring 2020 by then-chair of the Monroe County GOP William Ellis.
The court of appeals found on a 3-0 vote that the lower court’s ruling was “clearly erroneous.”
According to the ruling, Bloomington mayor John Hamilton’s appointment of Chris Cockerham to the contested seat was valid. Cockerham has been serving on Bloomington’s plan commission since his May 2020 appointment by Hamilton.
Reached by The B Square shortly after the ruling was released, Guenther indicated that he was not yet sure if an appeal to Indiana’s Supreme Court would be attempted.
The three-member panel on the court of appeals reduced the various questions of law that were in front of it to just one: For boards and commissions that have a partisan balancing requirement under Indiana state law, is it possible for an appointee to have no affiliation at all with any party?
Guenther and Ellis said no. The city of Bloomington and Hamilton said yes.
The court of appeals agreed with Bloomington and Hamilton.
Friday’s ruling says that the disputed statue should not be interpreted to mean that an appointee to a partisan-balance board or commission, like a plan commission, must have some partisan affiliation or other.
The central question about the lack of party affiliation did not involve either Guenther or Cockerham. It was undisputed that the seat in question could not be filled by a Democrat, because three of the five plan commission seats appointed by the mayor were already filled with Democrats.
Under state law, on a city plan commission, “no more than three (3) may be of the same political party.”
Both Guenther and Cockerham were to be appointed as Republicans to fill a vacancy. The dispute arose because of the lack of party affiliation by the plan commissioner who held the seat before it was vacant. Nick Kappas, who was not reappointed to the plan commission by Hamilton when his term ended at the start of 2020, was unaffiliated with any political party.
Hamilton did not appoint a replacement for Kappas for more than 90 days after the vacancy arose. And that opened the door, according to Guenther and Ellis, for Ellis to make the appointment under a different law.
It is IC 36-1-8-10 that gives the county chair of the party with which the previous member was affiliated to make the appointment, if the appointing authority does not make the appointment.
To assert his authority the law, Ellis looked back to Kappas’s predecessor, who was a Republican.
It’s the same law that Ellis invoked in late 2020 in order to appoint Republican Doug Horn to the Bloomington Transit board, when the Bloomington city council failed to make an appointment in a timely way.
Here’s the disputed requirement, which applies to all appointees to a partisan-balanced board or commission [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.
The city of Bloomington said, and the court of appeals ruled, that the law came into play only when it comes to setting a question about whether there are too many of one party on the board or commission.
The court of appeals put it like this: The law “does not graft a party affiliation requirement” onto the requirement that the five mayoral appointees to a plan commission not exceed three of the same party.
For the Bloomington plan commission, that law would be relevant, only if there’s some question about whether there were too many Democrats serving on the plan commission, according to Friday’s ruling. Because Kappas was neither a Democrat, nor a Republican, nor a member of any other party, he did not satisfy the test in IC 36-1-8-10, which meant specifically that he was not a Democrat, and therefore did not exceed the limit of three for any one party.
Based on Friday’s court of appeals ruling, it appears to be the case that if the appointing authority for a board or commission seat fails to fill the vacancy left by someone who is unaffiliated with any party, then there is no other person who can make the appointment.
In its Friday ruling, the court also found that Cockerham’s status as a Republican, when he was initially appointed by Hamilton, had been conferred as soon as he cast an early vote in the 2020 Republican primary election, and was not delayed until the election was completed.
Up until the 2020 primary, Cockerham had been a Democrat under the statutory definition, because the most recent previous primary he’d voted in was the 2019 Democratic Party primary.