Plan commission lawsuit: Injunction filed against meetings; Bloomington wants amended complaint dismissed

Bloomington’s plan commission is scheduled to convene a regular monthly meeting on Monday, July 13.

3-guenther kappas cockerham
From left to right: Andrew Guenther, who claims that he’s the rightful appointee to the city plan commission seat; Nick Kappas, who served in the seat through 2019; Chris Cockerham who was appointed by the mayor to the seat.

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.

A court hearing is now set for Aug. 5. If any part of the hearing goes Guenther’s way, it might not be Cockerham who serves in the seat for the next while. Guenther and Ellis are asking the court to keep Cockerham on the sidelines of any plan commission meetings, until the matter is resolved.

The next plan commission meeting after Monday’s session falls on Aug. 10.

But if the judge rules for the city of Bloomington on its motion to dismiss the lawsuit, that could end local court action, leaving it up to Guenther to appeal.

Developments last week in the pending lawsuit included several filings: an amended complaint; Bloomington’s motion to dismiss the amended complaint; a motion for a preliminary injunction against holding plan commission meetings; and a motion by the city to convert an Aug. 5 hearing to one about dismissing the case, instead of about a preliminary injunction.

Guenther and Ellis’s amended complaint, filed early last week, made explicit a claim that had been only implicit in the initial filing—that the predecessor for the contested seat, Nick Kappas, was not a valid appointment. Kappas was appointed by Hamilton in 2016, but not reappointed at the start of 2020.

When Hamilton did not appoint anyone for over 90 days, Ellis announced he was making the appointment as GOP county chair.

In the amended complaint, Guenther and Ellis contend that Kappas’s appointment was not valid, because he lacked any party affiliation whatsoever, when he was required to have one under their reading of the state statute.

In order to apply the statute on which Ellis relies for his authority to make an appointment, Ellis needs to be the “county chair of the political party of the member whose term has expired.” If Kappas’s appointment is considered not valid, then Ellis wants the judge to look to Kappas’s predecessor, who was Chris Smith, a Republican.

The city’s motion for a dismissal of the amended complaint includes arguments based on the legal standing of Guenther and Ellis to bring the lawsuit—they are the same kind of arguments the city made in its motion to dismiss the initial claim.

Based on Bloomington’s motion to dismiss, two key legal questions in the case appear to be: Is a plan commission appointee in Indiana required to have some kind of partisan affiliation? What is the correct legal remedy for a situation when the mayor does not replace an appointee who lacks a party affiliation?

Requirement of party affiliation?

On the first question, the Bloomington’s answer is no. In answering no, Bloomington has to interpret the undisputed partisan balancing requirement for an Indiana plan commission in a way that’s consistent with a different statute—the one on which Ellis and Guenther rely.

Both sides agree that the five mayoral appointees on an Indiana plan commission have to have a kind of partisan balance. Specifically, no more than three can be members of the same party. The statute defining plan commissions does not itself say that the appointees must have some party affiliation or other.

The requirement for some party affiliation or other, which Guenther and Ellis see in a different statute, currently reads as follows [IC 36-1-8-10]:

[A]t the time of an appointment, one (1) of the following must apply to the appointee:

(1) The most recent primary election in Indiana in which the appointee voted was a primary election held by the party with which the appointee claims affiliation.
(2) If the appointee has never voted in a primary election in Indiana, the appointee is certified as a member of that party by the party’s county chair for the county in which the appointee resides.

Bloomington says that this statute does not impose a requirement of some party affiliation. In its argument, Bloomington appeals to a distinction between two kinds of partisan balancing requirements for boards and commissions.

Some board and commissions have a requirement that an appointee be a member of a specific, limited set of political parties. County election boards are an example of such a board or commission. They have to include “one (1) member from each of the major political parties.” There are two major political parties—the Republican Party and the Democratic Party. In Monroe County, Hal Turner is the Republican Party member of the election board. Carolyn VandeWiele is the Democratic Party Member.

How would the party affiliation criteria apply to a proposed election board appointee who is claimed to be a Republican? Bloomington’s motion for dismissal says the criteria would be applied this way: “[If] the proposed appointee has not voted in a Republican primary and has not been certified by the Republican party chair for the county, then the appointee cannot be appointed to the board and such appointment would be void.”

But for other boards and commissions, like a plan commission or a board of health, the partisan balancing requirement is expressed not in terms of a membership requirement in some party or other, but rather in terms of a prohibition against having too many members of one party.

Bloomington says that the partisan affiliation criteria for this second kind of appointment should be applied this way:

If there are three Republicans on the board, and a proposed additional appointee either voted in a Republican primary or has been certified by the county Republican party chair as a Republican, then the appointee is a Republican, and cannot be appointed to the board. However, if neither of those are true, then the appointee is not a Republican, and his/her appointment would not result in a violation of Indiana Code, Section 36-7-4-207(a).

Bloomington appears to be contending that, for a situation like this example, the only goal of applying the criteria is to test whether the limit on three Republicans is exceeded. Bloomington’s reasoning is that the criteria can be used to achieve that goal without establishing that the appointee is affiliated with some other party.

Bloomington’s position seems to be that the statutory partisan affiliation criteria are there only to provide a way of testing whether a claim of party affiliation is true—if such a claim were to be made—but do not themselves entail that an appointee claim a party affiliation.

The version of the affiliation criteria that was in place in 2016, when Kappas was appointed, includes a third way to satisfy the statutory partisan affiliation criteria.

[A]t the time of an appointment, one (1) of the following must apply to the appointee:

(1) The most recent primary election in which the appointee voted was a primary election held by the party with which the appointee claims affiliation.
(2) If the appointee has never voted in a primary election, the appointee claims a party affiliation.
(3) The appointee is certified as a member of that party by the party’s county chairman for the county in which the appointee resides.

That version looks like it can be understood to entail explicitly that an appointee must at least assert a bare claim to an affiliation with some party—if they didn’t participate in a primary or have certification from the county party chair.

Whether the inclusion of criterion (2) in the earlier version of the statute, and its subsequent deletion by the state legislature, has a bearing on the statute’s proper interpretation, could be the topic of arguments in upcoming hearings and filings.

The possibility of simply asserting a bare claim of a party affiliation, without having voted in a primary or being certified by a county party chair, was removed by the state legislature in 2017.

What remedies are available?

The 2017 amendment to the statute, through P.L. 193–2017, reduced the number of party affiliation criteria to two—those about primary voting and party chair certification.

That’s also the amendment that gave authority for the first time to county party chairs to make an appointment to fill a vacancy on a board or commission.

And that 2017 amendment, enacted a year after Kappas was appointed, factors into Bloomington’s discussion about whether Ellis has the authority to make the appointment to fill the vacancy left by Kappas.

In 2016, when Kappas was appointed, Ellis did not have any statutory authority to make the appointment, because that part of the statute didn’t even exist. From Bloomington’s motion to dismiss: “Indiana Code, Section 36-1-8-10(d), upon which Petitioners rely for this assertion, did not exist until July 2017, over a year after Kappas’s appointment.”

Bloomington says, in its motion to dismiss, that up to 2017 the correct legal remedy for dealing with a situation where the mayor had not filled a vacancy—no matter what the party affiliation of the departing member—would have been to file a mandamus action. That’s a kind of lawsuit that seeks to compel a public official to perform a specific duty under the law.

It’s only the 2017 amendment that gave the county chair of a party the authority to fill a vacancy, and then only in situations where the departing member is affiliated with the same party as the county chair.

The attempted appointment of Guenther by Republican Party chair Ellis came after 90 days passed, with no action by the mayor to make an appointment. But Bloomington says that’s a situation that can’t be remedied by Ellis’s appointment, because Kappas, the departing member, was not a Republican.

Based on Bloomington’s motion to dismiss, the correct way for Ellis to have proceeded, when the position was still vacant, would have been the same as before 2017, namely to file a mandamus action:

Therefore the correct legal procedure to follow under the current law when there is a vacant seat of a member without party affiliation is not to rewrite the statute as Petitioners propose, but to follow the same procedure the statute operated under for the 31 years before the addition of subpart (d) in 2017. In other words, where a member lacks a party affiliation, the appointing authority retains its legal duty to make the appointment, and can be required by mandamus action to make an appointment…”

But given that Hamilton has already made an appointment, he’s already met the demand that a mandamus action would have made in this situation.

What’s next?

There’s more to the case besides those two questions.

An additional question raised by Ellis and Guenther is whether Cockerham met the affiliation criteria as a Republican at the time he was appointed. Cockerham had voted early in the June 2 Republican Party primary, but before that voted in the 2019 Democratic Party Primary.  Previous coverage of the case is available in The Square Beacon’s archives.

As of July 12, the online court system does not show  as a separate entry the Aug. 5 hearing date for the motion on a preliminary injunction.

But the hearing date is mentioned in Guenther and Ellis’s motion as follows: “As determined at the most recent attorney conference, hearing on the instant request has been set for Aug. 5, 2020.” The Aug. 5 date is also mentioned in Bloomington’s motion to convert the hearing to one about its motion to dismiss the complaint.

The preliminary injunction, if granted, would stop the plan commission from meeting until the lawsuit is resolved, or keep Cockerham from participating in plan commission proceedings until the lawsuit is resolved.

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