Ten days ago, on Aug. 5, a hearing was held about Bloomington’s motion to dismiss a lawsuit that could affect the membership the city’s plan commission.
On Friday (Aug. 14), special judge Erik Allen issued an order that lets the lawsuit go ahead.
Allen denied Bloomington’s motion to dismiss the case in a 125-word order that included a lifting of a previously imposed stay on the discovery process. That means both sides can now proceed with document requests and deposition of witnesses.
On one side are Monroe County GOP chair William Ellis and his pick for city plan commissioner, Republican Andrew Guenther. On the other side is Bloomington’s mayor, John Hamilton, with his pick, Republican Chris Cockerham.
Bloomington’s plan commission is scheduled to convene a regular monthly meeting on Monday, July 13.
The meeting agenda includes two residential projects—one on 3rd Street near the police station, and another at Johnson Creamery—which together could mean 179 additional bedrooms for Bloomington’s housing inventory.
Andrew Guenther won’t be helping to decide whether those projects are approved. That’s because the city of Bloomington has rejected Guenther’s claim to a plan commission seat, which is based on an attempted appointment by the Monroe County’s Republican Party chair, William Ellis.
Instead of Guenther, it will be Chris Cockerham serving in that seat on Monday. Cockerham is a Republican, who’s the choice of Bloomington’s mayor, Democrat John Hamilton. Cockerham has already served for one meeting as plan commissioner, on June 8, which is what prompted a lawsuit.
Now the judge in the case is being asked to decide whether the commissioner who previously held the seat met the statutory conditions for appointment.
The plaintiffs—Monroe County Republican Party chair William Ellis and would-be plan commissioner Andrew Guenther—are asking the judge to find that Nick Kappas’s appointment was void ab initio (from the beginning).
They’re not saying that Kappas himself did anything wrong.
It was Kappas who previously served in the seat, from 2016 to the end of 2019. But Bloomington mayor John Hamilton did not reappoint him.
Hamilton and the city’s legal team don’t agree with Ellis’s position. So Hamilton appointed Chris Cockerham, who is a Republican like Guenther. At Cockerham’s first meeting as a plan commissioner Guenther asserted his right to the seat. When Cockerham did not yield it, Ellis and Guenther filed the lawsuit.
How does Kappas get drawn into the mix, given that he is making no claim to the current seat?
In the pending lawsuit over the rightful appointee to a city plan commission seat, the city of Bloomington filed a motion on Monday to have Andrew Guenther’s claim dismissed, based on the idea that Guenther lacks standing to file the lawsuit.
Bloomington’s claim that neither Guenther nor Republican county chair William Ellis have standing is based on Bloomington’s contention that even if the facts alleged by Guenther and Ellis are assumed to be true, they “are incapable of supporting relief.”
In this case, Guenther and Ellis are challenging the right of Chris Cockerham to hold the plan commission seat, based on an appointment by Bloomington mayor John Hamilton, made in early May.
Guenther and Ellis say that Guenther is the rightful appointee to the seat, under Indiana state law, which says: “The county chair of the political party of the member whose term has expired shall make the appointment.”
Bloomington’s argument for dismissal hinges on the fact that “the member whose term has expired,” namely Nick Kappas, was not a Republican.
In the lawsuit, Andrew Guenther asserts that he has been duly appointed by GOP Monroe County chair William Ellis, and should serve on the commission instead of Cockerham.
It’s not yet decided which judge will hear the case. Owen County circuit judge Kelsey Hanlon, who’s facilitator of District 20, has been asked to appoint a special judge. One of 26 judicial districts the state, District 20 is made up of Monroe, Owen, Lawrence, and Greene counties.
In mid-April, Ellis declared his right to make the appointment as chair of the Republican Party. The announcement from Ellis came after Hamilton for several weeks did not fill the vacancy that was left when Hamilton decided not to re-appoint Nick Kappas. Kappas’s term expired at the end of 2019.