Judge says Bloomington annexation trial to be put off until related lawsuit is resolved

The special judge assigned to a Bloomington annexation case has ruled that a standard trial to which remonstrators are entitled will not go ahead in mid-November as originally scheduled.

That’s what remonstrators in Area 1A and Area 1B had requested—a delay on those proceedings, until some related litigation has been settled. The related litigation was initiated by the city of Bloomington, on constitutional grounds.

Remonstrators filed their lawsuit on March 16, 2022.

The related litigation was initiated by the city of Bloomington on March 29, 2022.

The related litigation will start to come into clearer focus in the next three months, because the current case management plan calls for a Dec. 10 hearing on the city’s motion for summary judgment.

Judge Nathan Nikirk’s Tuesday ruling in favor of the remonstrators came after hearing oral arguments for a little more than one hour last Friday morning (Sept. 1). Nikirk is the special judge out of Lawrence County who has been assigned to the case.

The question in front of Nikirk was: Should the standard annexation trial for Area 1A and Area 1B be put off—until a constitutional question about the status of annexation waivers is resolved?

Nikirk’s answer was: Yes, the trial should be put off.

Nikik’s order does not include an opinion on the merits of specific arguments that were put forward by the two sides.

In front of Nikirk last Friday morning, it was Stephen Unger, with Bose McKinney & Evans, who argued Bloomington’s side. Bloomington was against putting the trial on hold until the constitutional question is resolved in the other lawsuit.

Unger talked about the “need to have a trial.” Collecting signatures from more than 50 percent of landowners gives the remonstrators a right to their “day in court” but “it is not is not a right to obstruct the annexation,” Unger said.

Unger said, “The remonstrators need to stop obstructing the city from completing this annexation.”

Arguing the side of the remonstrators last Friday were William Beggs and Ryan Heeb, with Bunger & Robertson. The key concept they hammered was “subject matter jurisdiction.”

The city of Bloomington had offered in its response to the remonstrators’ lawsuit the constitutional question as an affirmative defense, Beggs said. Nikirk’s court would lose subject matter jurisdiction, once the constitutional question came into play, so went the argument by Beggs.

Beggs said that if the city of Bloomington loses the trial on the merits of the annexations for Areas 1A and 1B, then Bloomington will then try to apply the outcome of the constitutional question, to render Nikirk’s ruling moot.

Beggs argued that would be a better use of judicial resources, not to conduct a five-day trial, if it turns out that such a trial is not even needed.

If Bloomington prevails on the constitutional issue in the other lawsuit, there will be no need to conduct a five-day trial on the merits of annexation in Area 1A an Area 1B.

The constitutional question is the subject of the separate litigation initiated by the city of Bloomington.

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.

Based on a disqualification of several waivers—based on a 2019 law that invalidated all such waivers signed before July 1, 2003—remonstrators in Area 1A and Area 1B gathered enough signatures (more than 50 percent of landowners) to force a judicial review of the city’s annexation. But they did not gather enough signatures (more than 65 percent of landowners) to stop the annexation outright.

If the 2019 law is found to violate Indiana’s constitution, then the remonstrators in Area 1A and Area 1B will have fallen short of the 50-percent threshold, and there would be no basis for holding a five-day trial.

If the city prevails in that other litigation, then none of the other five annexation areas, which under the 2019 law, will have gathered enough signatures to stop annexation. But two of the areas would still have more than 50 percent, which would force judicial review of those two annexations.

For the city’s lawsuit that challenges the constitutionality of the 2019 law, there’s a hearing set for Dec. 10 on the city’s motion for summary judgment, according to the case management plan.

What the remonstrators in Area 1A and Area 1B managed to put on hold is the standard trial that has to take place, if remonstrators gather signatures from between 50 and 65 percent of landowners.

When that standard trial takes place, the court is required to order the annexation to go forward, if certain objective conditions are met—and if the city is able to show that the annexation is in the best interest of the owners of land in the territory to be annexed. Among the conditions listed out in the statute is one that says the population density in a proposed annexation area is at least three people per acre. [IC 6-4-3-13]

That’s a sufficient, but not a necessary condition among the objective criteria. Other sufficient conditions are if 60 percent of the territory is subdivided, or if the territory is zoned for commercial, business, or industrial uses.

In addition to the objective criteria, some subjective criteria would need to be met. The other, more subjective criteria include whether the annexation would have a “significant financial impact” on property owners and whether the annexation would be in the “best interests of the owners of land in the territory.”

The constitutional question in the other lawsuit centers on Article I, Section 24 of Indiana’s state constitution, which 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.