Late Tuesday, a petition was filed with the Indiana Supreme Court, to hear a case involving the rightful appointee to fill a vacant seat on Bloomington’s plan commission.
Filing the petition were former Monroe County Republican Party chair William Ellis, who is now vice chair, and Andrew Guenther, who at the time was affiliated with the Republican Party.
They say Guenther should now be sitting in the seat left vacant by Nick Kappas in January 2020, when Bloomington mayor John Hamilton chose not to reappoint him. Their claim is based on a state law that allows a party chair to make an appointment under certain circumstances. Ellis chose Guenther as his appointee.
The city of Bloomington’s position is that Chris Cockerham is the rightful appointee. Cockerham was the person Hamilton appointed. He has been serving for the last two years on the plan commission as the successor to Kappas.
Giving rise to the dispute is the statutory partisan balancing requirement for the five mayoral appointees to city plan commissions in the state of Indiana. No more than three of the five can be affiliated with the same political party.
Is there also a statutory requirement that plan commission appointees must be affiliated with some political party or other? That’s the key question of law at the heart of the case.
If there is such a requirement, then Kappas should not have been able to serve on the plan commission, because he was unaffiliated with any party.
Ellis argues that because Hamilton delayed in filling the vacancy, that gave him as GOP county chair the right to fill the vacancy—because Kappas’s predecessor was a Republican.
In late 2020, Ellis used the same statutory right to appoint a Republican member to the Bloomington Transit board, after the city council failed to fill a vacancy in a timely way.
The initial ruling at the circuit court level, by special judge Erik Allen, decided the case in Ellis and Guenther’s favor. But everything was put on hold as the case worked its way through the appeals process.
In mid-May, a three-member panel from the court of appeals overturned the lower court’s ruling.
When it decided the case in favor of the city of Bloomington and Hamilton, the court of appeals boiled the complex set of issues down to just one: Is there a statutory requirement that a member of a partisan-balanced board or commission be affiliated with some party or other?
The court of appeals said: No, there’s no such requirement—which means someone who is unaffiliated with any party can be appointed to a partisan-balanced board.
That’s the key question of law that Ellis and Guenther are asking the Indiana Supreme Court to consider.
The question that Ellis and Guenther want to put in front of the state’s highest court is phrased in their petition like this:
Whether an individual who claims no political party affiliation can be appointed by a city executive to a city plan commission when the statute prescribing the appointment process specifically requires that the appointee share membership in a political party.
It is disputed by the court of appeals and Bloomington whether “the statute prescribing the appointment process specifically requires that the appointee share membership in a political party.”
The statute in question reads like this [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.
But the statute that defines plan commissions does not itself say that the appointees must have some party affiliation or other—just that no more than three can be affiliated with the same party.
The city of Bloomington argued, and the court of appeals agreed, that IC 36-1-8-10 is merely the test that has to be applied, in order to determine which party someone belongs to. It’s not supposed to be interpreted as a requirement that appointees be a member of some party or other, according to the court of appeals.
It’s not certain that the Indiana Supreme Court will agree to hear the case. The city of Bloomington has 20 days to file a response to the petition. After that, Ellis and Guenther have 10 days to reply to the response. Then it is up to the court to decide if it wants to weigh in.
A potential wrinkle for the disposition of the case involves the soon-to-change composition of the five-member Indiana Supreme Court. Justice Steven David has announced he will retire in fall 2022.
Indiana governor Eric Holcomb has announced that his choice to replace David on the court is a current court of appeals judge, Derek Molter.
Molter served on the three-member court of appeals panel that has already ruled on the Bloomington plan commission case. The B Square has a pending question with the Indiana Supreme Court’s media relations office about any rules for disqualification or substitution that might apply in that situation.
[Updated July 8, 2022 at 11:37 a.m. The Indiana Supreme Court media relations office has provided a statement with some clarity on various points. For now, Molter is a judge on the court of appeals and has not yet been sworn-in as a justice on the Indiana Supreme Court. No date has yet been set for him to take the bench of the higher court, according to the statement.
If a petition to transfer has been filed with the clerk, it’s the current court—which does not include Molter—that will review the petition when appropriate, according to the statement.
When Molter does take the bench as a justice later this year, if there are any cases in which he recuses, that will be public record, the statement says.
The court has set up a website where residents can track acceptance or denial of transfers, as soon as they are announced: Indiana Supreme Court transfers.]