Analysis: Parallels between Republicans in General Assembly, Democrats on Bloomington city council

In 2017, Bloomington filed suit against Indiana’s governor, Eric Holcomb, over an annexation law that was enacted by the state legislature as a part of that year’s biennial budget bill.

Indiana’s Supreme Court is still weighing the arguments in the case, which were presented in January this year.

As Monroe County residents inside and outside Bloomington continue to wait for the state’s highest court to rule, it’s worth remembering the reasons why Bloomington filed its lawsuit.

When those reasons are recalled, in the context of a potential new local law in front of Bloomington’s city council, it’s hard to miss the parallels—between the approach taken by Republican-dominated legislature of 2017 and today’s Bloomington city council, which is composed entirely of Democrats.

In Bloomington’s view, when the annexation law was incorporated into the biennial budget bill, that caused the legislation to be unconstitutional—because it was not confined to a single subject, as required by the state’s constitution.

The annexation law was also unconstitutional special legislation, according to Bloomington, because it applied to Bloomington, and only Bloomington.

On the local level, a remarkable parallel to the 2017 annexation legislation could unfold in connection with an ordinance that Bloomington city councilmembers might enact this Wednesday.

It involves a proposal to change the way neighborhood permit parking zones work.

The idea is to create what its sponsor is calling a “parking benefit district” for one of the city’s neighborhood parking permit zones. The parking benefit district would allow more people to purchase permits than in other neighborhood zones—but at a higher price than people who buy them earlier.

A key feature to the proposal, which applies just to Zone 6 and only Zone 6, would put the proceeds from the higher priced permits at the disposal of the residents of the Zone 6 neighborhood. It’s a neighborhood represented on the city council by the sponsor of the parking benefit district, Steve Volan.

So the proposed parking benefit ordinance could be analyzed as “special legislation,” applying just to one neighborhood and not others.

There’s a second way the new parking benefit district law could be analyzed as parallel to the 2017 annexation legislation: It was not introduced to the council at a first reading as part of an ordinance.

Instead, last Wednesday night (Aug. 5), it was presented to a four-member transportation committee, of which Volan is also a member. Volan intends to incorporate the parking benefit district as an “amendment” on Aug. 12 into a different ordinance that was given a first reading, on July 22.

The legislation that got a first reading on July 22 is Ordinance 20-12, which encompasses a raft of separate propositions that make separate changes to Title 15 of Bloomington’s local law. The changes include a street name replacement, adding no-parking zones, adding stop signs and signals, removing a one-way street, adding a loading zone, prohibiting motorcycle parking at bicycle hoops, and alerting speed limits, among other things.

Neither the prices of permits in neighborhood parking permit zones, the eligibility of those to buy permits, nor the use of the surplus funds generated by parking permits, were subjects of any of the separate propositions in Ordinance 20-12. But those are the subjects of the parking benefit district.

So it’s possible to discern a parallel between the parking benefit district’s incorporation into Ordinance 20-12 and the 2017 annexation law’s incorporation into the biennial budget bill. Both pieces of legislation try to inject a new subject into a different piece of proposed legislation that is further along in its legislative process.

That means there’s room to make the same kind of complaint about the parking benefit district now, as Bloomington made about the annexation ordinance in 2017. Namely, the parking benefit district is a different subject from all of the other propositions in Ordinance 20-12.

Of course, these parallels don’t mean that the same legal arguments can be applied to both situations. The prohibition against special legislation in the state’s constitution is about the applicability of a law throughout the state, not the applicability of an ordinance throughout a city: “[A]ll laws shall be general, and of uniform operation throughout the State.”

And the constitutional requirement on single subjects is about bills enacted by the General Assembly, not ordinances enacted by city councils: “An act, except an act for the codification, revision, or rearrangement of laws, shall be confined to one subject and matters properly connected therewith.”

Single-subject: Bloomington local code on germaneness

If the state’s constitution does not require that a local ordinance be confined to single subject, is there anything else that might serve a similar purpose? Or does Bloomington face potential legislative chaos?

Yes, to the first question. No, to the second, if the city council follows local code.

One hint to the answer can be found in the state’s reply to Bloomington’s legal arguments on the 2017 annexation law. The state’s Sept. 27, 2019 reply talks about “a longstanding precedent” of the Supreme Court to defer judgment on single-subject questions to the legislature. According to the state’s memo, the legislature “enforces this constitutional requirement on its own.”

The enforcement of the constitutional single-subject rule is achieved by the state senate and state house rules, both of which hinge on the concept of “germaneness.”

The house rules say: “No motion or proposition on a subject not germane to that under consideration shall be admitted under color of an amendment.”

The senate rules say: “No motion to amend, committee action, concurrence or conference committee action which seeks under color of amendment to substitute or insert subject matter not germane to that of the bill or resolution under consideration shall be in order.”

So the state’s argument goes like this: Because the 2017 annexation law was amended into the biennial budget bill, subject to the rules of both chambers of the legislature, it must have been the case the legislature, under its own rules, judged the annexation law to be germane to the biennial budget bill.

And if that was the legislature’s judgment, it is important for the Supreme Court not to meddle with the legislature’s internal affairs, on pain of undermining the separation of judicial and legislative powers—so goes the argument.

It turns out that Bloomington’s city council’s legislative process is also subject to a germaneness requirement for amendments:

2.04.330 – Ordinances and resolutions—Amendment.
The following rules shall govern the council when considering proposals for amendment of ordinances and resolutions:
…
(2)An amendment must be germane to the proposition to which it is to apply;
…

Testing germaneness |  A bad argument

The parking benefit district is a proposition that changes Title 15, just like all the other propositions in Ordinance 20-12 do.

It’s easy to imagine some kind of attempted argument for the germaneness of the parking benefit district along the following lines: Ordinance 20-12 is a collection of Title 15 changes, so adding one more Title 15 change has to be OK, because Ordinance 20-12, as amended through the parking benefit district, would still be a collection of Title 15 changes.

But an amendment surely cannot be analyzed as satisfying the germaneness test with respect to Ordinance 20-12, just by being a proposition that changes Title 15.

If that were adequate pass the test, then it would render a different part of city code pointless—the requirement that every ordinance get a first and second reading before enactment. In Bloomington’s city code, here’s how that is expressed:

2.04.300 – Ordinances and resolutions—Readings required.
(a) Every ordinance shall be given two readings before a vote may be taken on its passage and no ordinance shall be passed on the same day or at the same meeting as it is introduced except by unanimous consent of the members present, at least two-thirds of the members being present and voting. An ordinance may not be debated or amended at its first reading or introduction unless state or federal requirements provide otherwise.
…

The first and second reading requirement could be rendered moot by introducing at first reading some single placeholder proposition as an ordinance that changes Title 15 in some way. Then, at second reading, that proposition could be deleted, and a couple dozen other propositions could be added. The “amended” ordinance would still include only changes to Title 15, but none of the changes would have been given a first reading in front of the council.

So an appeal to the fact that the parking benefit district modifies Title 15, just like all the other propositions in Ordinance 20-12, reduces to an absurdity—so it does not count as an argument that the parking benefit district is an allowable amendment.

Testing germaneness | A passed test: Amendment applies and is germane

To check whether the parking benefit district passes the city code’s actual germaneness test, first it’s useful to review how an amendment can definitely pass the test.

Other amendments to Ordinance 20-12, which transportation department staff have proposed, alter specific propositions that were in the version of Ordinance 20-12 that was first read on July 22. For example, one proposition in Ordinance 20-12 adds 16 rows to a table of no-parking zones. But staff Amendment 01 says: Strike two of the rows that were to be added in that proposition.

So staff Amendment 01 satisfies the requirement that it apply to some proposition in the ordinance—it applies to the proposition that says to add 16 rows to a table of no-parking zones. Is the amendment germane to the proposition that 16 rows be added? That’s a judgement call. But surely, striking two rows of the table to be added is germane to the proposition that the table be added.

It turns out that all staff amendments alter some existing proposition of Ordinance 20-12 in a way that is germane to the proposition—either by deletion of text or by addition of text that is uncontroversially pertinent to the existing words that sit adjacent to the new, added text.

So it’s hard to deny that those kind of amendments satisfy the code requirement that an amendment be “germane to the proposition to which it is to apply.”

Testing germaneness | A failed test: Amendment doesn’t apply to proposition

What about Amendment 05, the parking benefit district? Is it germane to the proposition to which it is to apply?

It’s hard to find a way to answer yes. That’s because the presupposition of germaneness of ordinance amendments, as defined in city code, is that the amendment must apply to some proposition. So, to consider whether an amendment is germane to the proposition to which it’s meant to apply, the first step is to identify the proposition to which the amendment is meant to apply.

To what proposition does Amendment 05 apply? For example, does it apply to the proposition that additional no-parking zones be established? Objectively, no. Does it apply to the proposition that stop signs and signals be added at specific locations? Objectively, no. And so on. It does not appear to apply to any of the pile of propositions in Ordinance 20-12.

It’s not possible to get to the second, subjective step, which is to ask: Is this amendment germane to the proposition to which it is meant to apply?

Objectively measured, it doesn’t look like Bloomington city code allows for Amendment 05 to be treated like a legal amendment to Ordinance 20-12.

Testing germaneness | A failed test: Amendment applies but isn’t germane

It’s worth considering a kind of amendment that does apply to a proposition in Ordinance 20-12, but would still be ruled out because it isn’t germane.

One of the propositions in Ordinance 20-12 says that the table of locations and prices for metered parking is to be modified by adding three rows, so that metered parking can be enforced on Walnut Grove and Cottage Grove.

It’s possible to imagine an Amendment A that would alter the proposition that adds rows for three block faces of metered parking. Suppose Amendment A, in addition to adding the same three block faces, raised all of the prices listed in the table to $5 instead of $1. Amendment A would certainly apply to a proposition in the ordinance.

But it would fail the part of the code’s definition that says an amendment has to be germane to the proposition. That’s because an amendment that changes price for all locations is not germane to a proposition that adds three locations without changing any prices.

What about repeal-and-replace?

There is, of course, a common approach to code revision that would allow a lot of unrelated changes to an ordinance to count as proper amendments. That’s the repeal-and-replace approach. In the repeal-and-replace approach, a large section of code is repealed and it’s replaced with new text.

In the repeal-and-replace approach, a main proposition in the ordinance would be the one containing the replacement text. After a first reading, any proposed change to the replacement text could be a potential amendment to the ordinance, because it applies to a proposition of the ordinance. The final check would be whether the amendment to the replacement text is germane to the text that it is proposed to be altered.

Ordinance 20-12 does not propose to repeal and replace Title 15. So amendments to Ordinance 20-12 are more constrained than they would be if the ordinance proposed to repeal and replace Title 15.

Parking benefit district as ordinance?

The parking benefit district could stand alone as its own ordinance. That means the parking benefit district could have been given its own first reading. And it looks like that first reading could have come on July 29, when the council had a regular meeting scheduled. That’s because July 29 is the date that appears on Volan’s parking benefit district legislation, which is labeled “Amendment 05.”

Granted, the agenda for the July 29 meeting will have been set a few days before July 29, but as president of the city council, Volan would have been in position at the start of the July 29 meeting to ensure that he entertained a motion to amend the agenda. At its July 29 meeting, the council could have referred Amendment 05 to a committee for an Aug. 5 committee meeting, which is the same date as the committee meeting when Volan unveiled Amendment 05.

If that approach had been taken, the city council could have decided for itself which committee heard the proposal for the parking benefit district—the transportation committee or the committee of the whole. Given the potential for the proposal eventually to impact all neighborhoods of the city in a controversial way, it’s possible to imagine that a majority of councilmembers would have wanted the committee of the whole to hear it, instead of the transportation committee.

By labeling the parking benefit district as an amendment to an ordinance that had already been first read (Ordinance 20-12 on July 22), there was no need to give the parking benefit district its own first reading, before adding it to the transportation committee’s Aug. 5 discussion.

So the parking benefit district was not day-lighted to the public until Aug. 5—a week later than if it had been treated as a stand-alone ordinance. Even then, it was day-lighted only to members of the public who were vigilant enough to stay up through a late-night transportation committee meeting.

Even now, based just on the city council’s posted agendas, it’s not possible to discern that the neighborhood parking permit system could be altered on Wednesday night.

History of parking benefit district at parking commission

It’s worth mentioning that the public did have an opportunity to get familiar with the idea of parking benefit district, before Aug. 5. That’s because on July 9 Volan presented a version of his proposal to the parking commission, of which he is also a member. The pushback against it was so strong from staff and other commissioners that he withdrew it. That meant it was not included in Ordinance 20-12 when it was introduced at first reading to the city council at its July 22 meeting.

But at the parking commission’s next meeting, on July 23, Volan introduced a different version, about which other commissioners still had concerns. Put to a vote, that version of the parking benefit district failed 3–3.

Volan further revised his parking benefit district after the failed parking commission vote. But the third version, the current one discussed by the council’s transportation committee, was not reviewed or recommended by the parking commission.

That’s raises another potential challenge to acceptance of the parking benefit district as an amendment to Ordinance 20-12: How can the failure of the parking commission to recommend the parking benefit district be reconciled with the “Whereas” clause of the ordinance? It reads:

“WHEREAS, the Traffic Commission, Parking Commission, and City staff from Parking Enforcement, the Planning and Transportation Department, and the Legal Department recommend certain changes be made in Title 15 of the Bloomington Municipal Code entitled “Vehicles and Traffic,…”

Last Wednesday, Volan’s parking benefit district got support from just one of the other three committee members, two of whom “abstained” in the committee’s straw poll.

Committee straw polls have no legal impact on the outcome of legislation. An ordinance does not have to get a majority in a committee straw poll in order to go back to the full council for a vote. That is, a committee’s straw poll does not affect the status of an proposed ordinance one way or another.

Legislative surprises?

The requirement that an ordinance get two separate readings, coupled with the requirement that an amendment be germane to the proposition to which it’s meant to apply, serve as a kind of safeguard against legislative surprises.

Anyone who watched the parking commission’s failed vote to recommend the parking benefit district, and observed that the parking benefit district was not included as a part of Ordinance 20-12 when it was first read, would likely be surprised that it’s under consideration this Wednesday for enactment.

Even now, on the city council’s second-reading agenda, there’s no mention of the specific part of Title 15 that would need to be changed in order to implement the parking benefit zone. On Wednesday’s agenda, there’s an “Am 05” listed, but without further research a reader would have no reason to suspect that “Am 05” relates to a part of Title 15 that is not in the list of chapters that Ordinance 20-12 proposes to change.

What explains that kind of opaqueness? It’s a consequence of a failure to conform to the two-reading requirement for ordinances and the germaneness requirement for amendments.

Of course, not every legislative surprise can be prevented. That’s because on the occasion of a second reading, just before the vote on the adoption of an ordinance, councilmembers can propose significant amendments, which pass the germaneness test, but that no one has contemplated before.

They are sometimes called “floor amendments.” They still have to be in writing, but they’re offered “from the floor” instead of being included in the meeting packet of written materials distributed to the public in advance of the meeting.

An example of a floor amendment came on the night when the council took the final vote on the electric scooter legislation last year. On the night of the scooter legislation’s adoption (July 31, 2019), an amendment was offered that allowed scooter parking on the unimproved surfaces between sidewalks and the street. It was Steve Volan who proposed the amendment, which eventually was approved by the council on a split vote (6–1–1–1).

A couple weeks later at a meeting of the council, Bloomington resident Carol Thompson took a turn at the public podium to object to the substance of Volan’s scooter parking amendment. She also objected to the process. “The public had no advanced notice that this amendment was going to be introduced and voted on, during the same night,” Thompson said.

That comment resonated with recently-retired council administrator/attorney Dan Sherman, who brought up the topic at a meeting of the council’s rules committee that following morning.

Sherman said: “Thinking about last night, it would be be nice to talk about floor amendments and how we handle them.”

Volan’s quick response to Sherman was: “Good call.” None of other members of the committee—Dorothy Granger, Jim Sims and Isabel Piedmont-Smith, or city clerk Nicole Bolden (ex officio)—had an objection to adding floor amendments to the set of items to be considered. But that’s where the consideration of floor amendments ended.

The rules committee, chaired by Volan, did not bring recommendations on council procedures to the full council by the end of the year. At the start of the year, several standing committees were established amid considerable controversy. And the rules committee’s work was supposed to be continued by the newly-established administration committee.

The administration committee consists of councilmembers Dave Rollo, Sue Sgambelluri, Jim Sims and Steve Volan. In the first seven and a half months of the year, the administration committee has not met to discuss the kind of procedural issues identified by the rules committee a year ago.

What’s next?

The city council’s agenda for Wednesday has Ordinance 20-12 slotted last among the ordinances to be considered. So the raft of revisions to the traffic code are scheduled to come after two significant pieces of legislation.

One is the planned unit development proposal by Habitat for Humanity. The other is the $2 million appropriation ordinance that is meant to jumpstart Bloomington’s economic recovery after COVID-19.

It’s hard to predict how much time the council will spend on any given item. But the order of scheduling means it’s possible that deliberations on the parking benefit district could take place sometime towards 9 p.m. or later.