Andrew Guenther is the rightful appointee to Bloomington’s plan commission, according to a lower court ruling issued on Thursday morning.
The ruling was made by Greene County special judge Erik Allen, who was appointed to hear the case after Monroe County circuit court judges recused themselves.
Judge Allen was elected as a Republican. The case is inherently partisan in character.
In the lawsuit, Monroe County Republican chair William Ellis sought to assert a right under state law provided to a party chair, to appoint Guenther to a spot on the Bloomington plan commission.
Bloomington mayor John Hamilton’s position was that he retained the right to make the appointment, even after leaving the seat vacant for more than 90 days.
In any event, it was undisputed that non-affiliation with the Democratic Party was essential—in order to conform with the partisan balancing requirement for the five mayoral-appointed seats on the nine-member plan commission.
Hamilton’s eventual pick to fill the vacancy—which was created when he chose not to re-appoint Nick Kappas at the start of 2020—was real estate broker Chris Cockerham.
Cockerham has been serving in the seat contested by Guenther since May 2020.
On Tuesday morning, a three-judge panel from Indiana’s Court of Appeals issued a unanimous ruling that goes against Bloomington’s mayor John Hamilton and the city of Bloomington.
The ruling could be pivotal in the case of a disputed city plan commission seat that dates back to spring 2020. But Tuesday’s ruling leaves unresolved some crucial matters of statutory interpretation.
When the case goes back to the circuit court, it’s possible the special judge in the case, Erik Allen, could eventually issue an order that recognizes Andrew Guenther as the rightful appointee to the Bloomington plan commission, instead of Chris Cockerham.
Or Allen could decide that Cockerham is the right person for the spot.
That will depend on how Allen analyzes the questions of law in the case, which involve partisan balancing of boards and commissions
Tuesday’s order from the court of appeals panel simply affirmed Allen’s decision to deny the city of Bloomington’s motion to dismiss the case. The motion to dismiss was based on the idea that Guenther, and Monroe County GOP chair William Ellis, lacked legal standing to file their lawsuit.
In spring 2020, Ellis claimed a right under a state statute to make the plan commission appointment, and designated Guenther as his appointee. Under normal circumstances, it’s a mayoral appointment.
On Friday morning, the city of Bloomington filed its last brief with the state’s court of appeals, in the case that will decide who has the rightful claim to a Bloomington city plan commission seat.
Is it Chris Cockerham, the appointment made in summer 2020 by Bloomington’s mayor, Democrat John Hamilton? Or is it Andrew Guenther, the appointment made earlier, in the spring of 2020, by Monroe County GOP chair William Ellis?
Both Cockerham and Guenther are currently Republicans, under the statutory definition of party affiliation. The appointee could not be a Democrat, because that would exceed the limit of appointees who are members of the same political party.
Now starts the wait for the court of appeals to decide how to handle the case. It seems somewhat unlikely that the whole lawsuit would be wrapped up before the plan commission considers the question of an upcoming citywide zone map revision. Cockerham has bee serving on the plan commission since summer 2020.
The city’s brief outlined why Bloomington thinks the court of appeals should overturn the lower court’s ruling, which was in favor of Guenther and Bloomington, and denied Bloomington’s attempt to dismiss the case.
Bloomington contends that the mayor made a valid appointment to the plan commission last summer in Chris Cockerham, who is a commercial real estate broker.
After the deadline for a reply expires, it will be up to the court of appeals to decide.
It seems somewhat unlikely that the whole lawsuit would be wrapped up before the plan commission considers the question of an upcoming citywide zone map revision.
But the timeframe for the map revision had originally called for a plan commission review in the second half of January, and that scheduling has slipped. A revised timeline for the zone map revision has not yet been announced, but it’s not expected to slide by more than a month or two.
The case will decide who serves on Bloomington’s plan commission: Chris Cockerham or Andrew Guenther. Both are Republicans. Cockerham, the mayor’s pick, has been serving for a few months now and will continue to serve on the commission until the case is decided.
Friday’s ruling means the usual sequence of written legal memoranda submitted by the two sides can start. Now that it has permission to file its appeal, the city will do that, along with a brief in support. Guenther and GOP Monroe County chair William Ellis, who are represented by local Bloomington attorney Carl Lamb, will have a chance to file a brief responding to Bloomington’s arguments. Finally, Bloomington will get a chance to reply to the response.
Either side can ask for oral arguments to be heard. Whether oral arguments are heard is at the court’s discretion. The court can itself decide to hear oral arguments, even if neither side requests it.
Given the allowable timelines for each step in the rules of Indiana appellate procedure, it seems unlikely that a ruling will come on the appeal before year’s end. The lawsuit was filed in June of this year.
Bloomington’s nine-member plan commission has continued to meet and consider petitions for the last few months, even as litigation proceeds on the question of the rightful appointment to one of its seats.
On Monday, local judge Erik Allen cleared the way for Indiana’s court of appeals to review a ruling in the middle of the lawsuit over the appointment.
Called an “interlocutory appeal,” the court of appeals could now accept jurisdiction over an appeal to review Allen’s ruling, which was made in mid-August to deny Bloomington’s motion to dismiss the case.
The case involves a claim made by Monroe Republican Party chair William Ellis—that the appointment to fill a vacancy on the plan commission at the start of the year was his to make. The claim is based on the idea that Bloomington’s mayor, John Hamilton, did not fill the vacancy in a timely way.
That ruling was to deny Bloomington’s motion to dismiss the case of Andrew Guenther, who is laying claim to the plan commission seat—by virtue of an appointment made by Monroe County GOP chair William Ellis. It’s normally a mayoral appointment. Chris Cockerham is Bloomington mayor John Hamilton’s pick for the commission.
Based on the ruling, the possibility of swapping out Cockerham for Guenther is still in play.
An interlocutory appeal is one that is made to the court of appeals in the middle of a case, on an intermediate lower court ruling, instead of waiting for the judge to make a final ruling.
Under Indiana’s trial rules [Indiana Appellate Rule 14(B)(1)], the local judge has to certify the ruling to be appealed, so that a request can be made of the court of the appeals to accept jurisdiction.
After a judge ruled on Friday to deny Bloomington’s motion to dismiss a lawsuit about a plan commission seat, on Monday the city asked the judge to allow for a quick appeal on the ruling.
By ruling on Friday against Bloomington’s bid to get the case dismissed, local special judge Erik Allen was allowing the lawsuit to go forward. If successful, the lawsuit could change the membership of Bloomington’s city plan commission.
If the lawsuit filed by Monroe County GOP chair William Ellis and would-be plan commissioner Andrew Guenther is successful, Guenther would replace Bloomington mayor John Hamilton’s appointment to the seat, Chris Cockerham.
The seat became vacant at the start of the year when Bloomington’s mayor John Hamilton decided not to re-appoint Nick Kappas to the plan commission.
On Monday, Bloomington filed a request asking local special judge Erik Allen to certify his denial of the city’s bid to get the case dismissed, so that Bloomington can ask for the court of appeals to look at Allen’s ruling.
It’s called an interlocutory appeal, which is a way for a party in a lawsuit to ask for a second opinion on a ruling during a case, before proceedings have concluded in the lower court.