Chris Cockerham will remain a Bloomington plan commissioner. Andrew Guenther will not be installed to replace him.
In June of 2020, Guenther and Ellis had filed a lawsuit against Bloomington mayor John Hamilton over the rightful appointee to the Bloomington plan commission.
The key question of law in the case was this one: Is there a statutory requirement that a member of a partisan-balanced board or commission be affiliated with some party or other?
Guenther and Ellis said yes. Bloomington’s mayor John Hamilton said no.
In a ruling that was issued in late May this year, a three-member panel of the court of appeals sided with Bloomington. The court of appeals decision reversed the initial ruling at the circuit court level, by special judge Erik Allen, who had decided the case in Ellis and Guenther’s favor.
The court of appeals said there is no requirement—that for someone to be appointed to a partisan-balanced board or commission, they have to be a member of some political party or other. That means someone who is unaffiliated with any party can be appointed to a partisan-balanced board.
Tuesday’s notification from the Supreme Court, that it won’t hear the case, means this spring’s court of appeals ruling will now stand.
The question settled by the litigation does not relate to the lack of party affiliation by either Guenther or Cockerham. Instead it turned on the lack of any party affiliation by Nick Kappas, who was Cockerham’s predecessor.
In their original lawsuit, filed in summer 2020, Ellis and Guenther said Guenther should serve in the seat left vacant by Nick Kappas in January 2020, when Bloomington mayor John Hamilton chose not to reappoint him. Their claim was based on a state law that allows a party chair to make an appointment under certain circumstances. Ellis chose Guenther, a Republican at the time, as his appointee.
The city of Bloomington’s position was that Republican Chris Cockerham is the rightful appointee. Cockerham was the person Hamilton appointed. He has been serving for more than the last two years on the plan commission as the successor to Kappas.
Ellis argued that because Hamilton delayed more than 90 days in filling the vacancy, that gave him, as GOP county chair, the right to fill the vacancy—not because Kappas himself was a Republican, but because Kappas’s predecessor was a Republican and Kappas lacked any party affiliation.
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.
So there was not a dispute over Ellis’s right to make a plan commission appointment under the right circumstances. The question was whether the circumstances were right. Kappas’s lack of any party affiliation was the fact that gave rise to the dispute.
Ellis and Guenther contended that Kappas’s appointment was unlawful in the first place, because of his lack of party affiliation—which is why they wanted to look to the party affiliation of Kappas’s predecessor.
Why did Ellis and Guenther believe there’s a requirement that some kind of party affiliation is mandatory?
They did not base their belief on the state law that allows the creation of plan commissions in the state of Indiana. The law on plan commissions just imposes a partisan balancing requirement for the five mayoral appointees to city plan commissions: No more than three of the five can be affiliated with the same political party.
But that state law does not explicitly impose a requirement that a plan commission appointee be affiliated with some party or other.
The statute to which Ellis and Guenther pointed 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.
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, if they belong to some party. That is, the law is not supposed to be interpreted as a requirement that appointees be a member of some party or other, according to the court of appeals.