Latest filing in Bloomington annexation case: Remonstrators ask for more time due to ”pestilence”
In a June 6 court filing, remonstrators in Bloomington annexation Area 1A and Area 1B have argued for additional time to collect remonstrance signatures against the city council’s annexation ordinances, which were approved in September 2021.
The remonstrators’ basic argument stems from the fact that the COIVD-19 pandemic had caused Indiana governor Eric Holcomb to issue an emergency health order, which covered the time for signature collection.
The original 90-day window for remonstrance closed on Jan. 6 of this year (2022).
Area 1A is just west of Bloomington. Area 1B lies to the southwest.
The June 6 court papers include a response to the city of Bloomington’s previous motion on the same topic. Bloomington asked the court to disallow any extension of time to collect more signatures.
The lawsuit involving Area 1A and Area 1B is separate from the lawsuits initiated by Bloomington, one for each annexation area, filed against various parties, based in part on the idea that many of the remonstrance signatures come from property owners who had previously waived their right to remonstrate.
In Area 1A and Area 1B, property owners in each area separately achieved remonstrance signatures from more than 50 percent of property owners, but less than 65 percent, according to the county auditor’s certified results. If signatures from 65 percent of property owners had been collected, that would have meant an automatic stop to Bloomington’s annexations of the two areas, without review by a court. But achieving 50 percent meant that Bloomington’s annexation ordinances for those areas were able to get a review by a court.
The idea of an extension for more time to collect signatures is not new—it was a part of the original complaint filed by remonstrators in mid-March.
But now, the arguments on either side for and against an extension are starting to get fleshed out. A hearing is currently set for July 29 in front of judge Nathan Nikirk.
Nikirk is the Lawrence County circuit judge who was appointed as the special judge in the case, after Monroe County judges recused themselves. Nikirk’s appointment came after Frank Nardi, Brown County circuit court magistrate, declined to be appointed as special judge.
Nardi was the local judge for Bloomington’s 2017 lawsuit against Indiana state governor Eric Holcomb over the state legislature’s suspension of the city’s annexation process. That’s the same annexation process that is now getting litigated again for different reasons. The Indiana Supreme Court agreed with Nardi’s ruling, for Bloomington, on a 3-2 vote.
Nikirk recently served as a special judge in another recent case originating in Monroe County. He determined that Myra Kinser’s name should not appear on the Republican Party’s May 3 primary election ballot lineup for the District 62 seat in the Indiana legislature’s house of representatives.
On May 6, Bloomington gave an initial response to the basic idea that remonstrators should get more time to collect signatures. The city’s motion for a ruling in its favor, against any extension of time, was based on the idea that there’s nothing in the annexation statute that allows for such an extension.
The June 6 filing by remonstrators gives two arguments for additional time—one based on an emergency powers statute and the other based on basic fairness, which in legal terms is “equitable tolling.”
The June 6 filing cites the emergency powers in IC 34-7-6-1 as allowing for an extension, because, they contend, the collection of signatures is part of a “proceeding…pending before a court, a body, or an official, that exists under the constitution or laws of Indiana.”
The remonstrators point to the Bloomington city council as the body before which the proceeding was pending.
The remonstrators further contend that the COVID-19 pandemic, which resulted in an emergency health order that lasted through the period of the remonstration, was “pestilence” as described in IC 34-7-6-1. Under that statute, if pestilence causes an emergency, then the legal limitations of time that are included in a “proceeding” can be excluded for the period of time the emergency existed.
The legal “limitations of time” that are included in the annexation statute are 90 days for collecting remonstrance signatures. So the remonstrators are asking the court to allow for an additional 90 days to collect signatures.
In addition to the argument based on the emergency powers law, the June 6 filing appeals to the legal principle of “equitable tolling,” which remonstrators contend gives the court the ability to extend the 90-day remonstration window. In the wording of the June 6 filing, the court has “the inherent authority to do what is fair and just, including tolling deadlines when such a remedy is equitable.”
