Early Wednesday morning, special judge Nathan Nikirk heard procedural arguments in the Bloomington annexation trials for Area 1A and Area 1B, which are west of the city.
Nikirk said he would likely issue a ruling on the question in front of him “first thing in the morning,” which would mean early Thursday, Oct. 19.
The question for Wednesday was whether Nikirk should grant the city of Bloomington’s request that he lift his stay, which Nikirk had imposed in early September, on the annexation trials for Area 1A and Area 1B.
The stay, which is the legal term for a pause, was meant to allow a constitutional question concerning annexation waivers to get resolved, before conducting the statutorily defined trials for the two areas. The constitutional question bears on a 2019 law that invalidated older annexation waivers, which is the subject of some separate lawsuits filed by Bloomington.
If Nikirk’s decision on Thursday is for Bloomington, that would mean going ahead with the annexation trials for the two areas, just as soon as they can be put on the court’s calendar.
But even if Nikirk rules for Bloomington, the Area 1A and Area 1B trials would probably not start until early 2024.
It was Bose McKinney attorney Andrew McNeil, who estimated that time frame when he gave Bloomington’s side of the argument on Wednesday morning. Giving arguments for the remonstrators on Wednesday was Bunger Robertson attorney William Beggs.
Remonstrators in the two areas are in front of Nikirk in the first place, because they collected signatures from more than 50 percent of property owners, which was enough to force a trial as defined in the state’s annexation statute. The trials would be on the merits of Bloomington’s annexations, which were approved by the city council in September, more than two years ago.
In Area 1A and Area 1B, the number of signatures fell short of 65 percent, which would have been enough to stop the annexation outright. In other areas, the number of signatures exceeded 65 percent.
Bloomington launched lawsuits for each area based on the constitutionality of the 2019 law. That’s because the number of remonstration signatures that actually count would be diminished, if the 2019 law were found to be unconstitutional. A finding of unconstitutionality would mean that Area 1A and Area 1B would not meet the 50-percent standard for getting a judicial review.
So the remonstrators in Area 1A and 1B do not want to see a scenario unfold where they go through a 5-day annexation trial, win on the merits, but eventually see that win undone based on the constitutionality claims.
It’s the same kind of issue that Nikirk ruled on in early September, when he imposed a stay. Nikirk’s stay order indicated it would stay in place until the separate lawsuits that Bloomington filed over Area 1A and Area 1B—in connection with the constitutional claims about the 2019 law—were resolved.
Bloomington took the step of getting its own lawsuits over constitutional claims in Area 1A and Area 1B dismissed, which appears to satisfy Nikirk’s condition for lifting the stay. That’s why Bloomington went back to Nikirk to ask that the stay be lifted.
So the question in front of Nikirk on Wednesday morning was just procedural—having nothing to do with the issues that get addressed in an annexation trial as defined by the statute.
In the early September proceedings, Beggs had argued for a stay based on the idea that Nikirk’s court could potentially lose subject matter jurisdiction. The loss of subject matter jurisdiction would come about when the city asserted its defense that the remonstrators had not actually achieved the 50-percent signature threshold—and that defense would be based on the city’s contention that the 2019 law is not constitutional.
[Updated at 10:25 p.m. on Oct. 18, 2023. The city has filed with the court a stipulated waiver of any defense over the constitutionality of the 2019 law. ]
But on Wednesday, arguing for the city of Bloomington, McNeil cited an Indiana court of appeals case that appeared to be on point for the question of subject matter jurisdiction in an annexation trial. [Fight Against Brownsburg Annexation v. Town of Brownsburg, Indiana, 32 N.E.3d 798, 804 (Ind. Ct. App. 2015)]
The Brownsburg case found that the issue of adequate numbers of signatures was not properly addressed with the concept of subject matter jurisdiction.
On Wednesday, Beggs agreed with McNeil’s assessment of the Brownsburg case.
McNeil took Beggs’s agreement to be enough to decide the question—because the remonstrators had relied on the idea of subject matter jurisdiction in their successful argument to persuade Nikirk to grant the stay.
But on Wednesday, Nikirk pointed out he had not cited subject matter jurisdiction as the reason for granting the stay.
At one point Nikirk cautioned McNeil, when McNeil appeared to be implying that Beggs might have violated ethical rules, because Beggs did not apprise the court of the Brownsburg case. “I demand civility,” Nikirk said. He added that any issues concerning ethical conduct were between the two attorneys, and did not involve him.
McNeil indicated that he was not accusing Beggs of unethical conduct, saying he did not think it was an ethical disciplinary issue—specifically not a “3.3 issue.” That’s the section of the rules of professional conduct for lawyers that requires them to advise the court of controlling precedent, even if that precedent is adverse to their client’s interest.
Even if Nikirk rules on Thursday in favor of the remonstrators, by keeping a stay in place, Bloomington has initiated the process for an interlocutory appeal of Nikirk’s stay order.
An interlocutory appeal, if successful, could eventually lead to a faster resolution to the question of Bloomington’s annexation of Area 1A and Area 1B than would be expected if the trials, if they are even necessary, did not start until after Bloomington’s separate constitutional lawsuits were resolved.
Readers can track Nikirk’s expected Thursday ruling by visiting Indiana’s online court system.