The city of Bloomington is now executing a two-pronged approach to overcoming a setback in early September, in its effort to get a standard annexation trial moving ahead.
In early September, special judge Nathan Nikirk put off a standard judicial review of the Area 1A and Area 1B annexations, which were approved by Bloomington’s city council two years ago. The areas are located to just to the west of the city boundary.
Nikirk’s Nov. 5 ruling said that the standard annexation trials for Area 1A and Area 1B would be delayed, until Bloomington’s related, but separate litigation—over constitutional questions related to annexation waivers—is resolved. At the time, resolution seemed like a couple years away.
But that separate litigation is now resolved—at least as far as it affects Area 1A and Area 1B. On Sept. 19, special judge Kelsey Hanlon out of Owen County granted Bloomington’s motion for dismissal of the Area 1A and Area 1B constitutional cases, and agreed to reconsolidate just the five remaining lawsuits.
That appears to satisfy the “until” condition in Nikirk’s Sept. 5 order. That is, the separate litigation, as it relates to Area 1A and Area 1B, is now resolved.
With Hanlon’s dismissal now in hand, Bloomington has requested that Nikirk lift his order on the delay, so that Bloomington can go ahead and make its case to Nikirk for the annexations.
The legal team for the annexation remonstrators reacted to the city’s motion that Nikirk end the delay—by filing a document that indicates their intent to respond—within seven days. Based on the date of the filing, that would mean the response could be expected by Friday, Sept. 29.
As of 6 p.m. on Friday, Indiana’s online court system did not yet show the response to Bloomington’s motion to end the delay. But according to Margaret Clements, with County Residents Against Annexation, Inc., which is a plaintiff in the lawsuit, the response had been filed, even if not posted.
According to Clements, the response includes the idea that Bloomington’s defense in the standard annexation trial will still include the idea that not enough signatures were collected, which relies in part on the city’s claim that a 2019 law about annexation waivers is unconstitutional. The constitutional question internal to one set of cases can’t be circumvented by dismissing the other separate lawsuits—so goes the argument.
Even if Nikirk denies Bloomington’s request to end the delay, which he previously ordered, Bloomington has started the process to appeal that order. The appeal is the second prong of Bloomington’s attempt to get the annexation trials started for Area 1A and Area 1B—sooner and not later.
Because it’s an appeal of an order that was issued before the conclusion of the case, it’s called an interlocutory appeal. As a first step, Bloomington has to ask Nikirk to certify his order for the purpose of the appeal.
The legal team for the remonstrators has filed an objection to that motion for certification.
The objection revisits many of the same arguments that were made during oral arguments on Sept. 1. The arguments were on the motion that the remonstrators made, and which Nikirk eventually granted, to delay the standard annexation trial until the related constitutional litigation is resolved.
During oral arguments, the legal team for the remonstrators contended that if the city of Bloomington loses the trial on the merits of the annexations for Areas 1A and 1B, then Bloomington would then try to apply the outcome of the constitutional question, to render Nikirk’s ruling moot.
They contended that it’s 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. Otherwise put, if Bloomington prevails on the constitutional issue in the other lawsuit, then there is no need to conduct a five-day trial.
The five-day trial would review the statutory criteria that Bloomington has to meet in order to complete its annexations.
Why would the annexation trial be moot, if Bloomington prevails on the constitutional question about waivers?
It’s because a Bloomington victory on the constitutional question would mean that a 2019 law could not apply, and many signatures by remonstrators would be disqualified. If those signatures were disqualified, the remonstrators in Area 1A and Area 1B would not have achieved signatures from at least 50 percent of property owners. That 50-percent figure is the threshold for forcing a judicial review.
Other annexation areas, besides Area 1A and Area 1B, would also be affected by a Bloomington win on the constitutional question. Other annexation areas collected signatures from more than 65 percent of landowners, which was enough to stop the annexation outright. But if Bloomington wins its constitutional challenge of the 2019 law, those other areas would fall short of the 65-percent threshold, and for all but two of them, also fall short of the 50-percent bar.
Later next week, the short-term future scheduling of events in the case. A status conference among the parties has been set by Nikirk for Oct. 5.
Depending on the outcome of the status conference, and Nikirk’s ruling on the city’s request that his previous order be lifted, the standard annexation trial could start before the end of the year, or be put off for at least several more months.