Bloomington wants a quick appeal to intermediate ruling in lawsuit over disputed plan commission seat

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.

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From left: Andrew Guenther, Nick Kappas, Chris Cockerham.

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.

Assuming Allen goes ahead and grants Bloomington’s request, that pauses the discovery process for the next phase of case.

Key background to the case is that five of the seats on a plan commission in Indiana are appointed by the mayor. They have a partisan balancing requirement: No more than three of the five seats can be filled by members of the same party.

Currently serving in the other four seats on Bloomington’s plan commission are three Democrats and a Republican. That means the appointment to the disputed seat cannot be a Democrat. Both Cockerham, who has been serving in the seat for a couple of months, and Guenther, who filed suit in early June, are Republicans.

Ellis claimed authority to make what is normally a mayoral appointment by citing a state law that says if the vacancy is not filled by the mayor, then the county chair of the political party of the member whose term has expired makes the appointment.

Bloomington’s basic legal argument for dismissal rested on an undisputed fact: Kappas is the member whose term expired, and Kappas is not a Republican. It was that fact that led Bloomington to ask for a dismissal of the case, saying that Ellis and Guenther did not even have legal standing to bring the lawsuit.

If Kappas is not a Republican, Bloomington’s argument goes, then the state statute giving Kappas’s party chair the right to make the appointment cannot give the right to the Republican Party chair, which is Ellis.

The wrinkle in the case is that under the statutory definition, Kappas is unaffiliated with any political party. But Ellis and Guenther interpret the state statute defining party affiliation—for purposes of partisan balancing of a plan commission—to mean that an appointee has to have some party affiliation. They argue that because Kappas was unaffiliated with any party, his appointment to the plan commission in 2016 was not valid.

So Ellis and Guenther look to the party affiliation of Kappas’s predecessor, Republican Chris Smith, as the foundation of Ellis’s authority to fill the vacancy left by Kappas.

A key question of law that a decision in the case could wind up establishing: Does the state law defining partisan affiliation for partisan-balanced boards and commissions entail that an appointee have some affiliation or other?

In its request filed Monday, Bloomington’s legal team points to the clarification of key questions of law as a part of its reasoning.

A key part of Bloomington’s argument for dismissal of the case had been based on a claim that Guenther and Ellis do not have standing to bring the lawsuit. A lack of standing stemmed from the fact that Kappas was not a Republican. The means the necessary condition was not met for the GOP chair to make the appointment under the statute, Bloomington said.

In its request of the local judge to allow the interlocutory appeal to go forward, Bloomington points to the question of legal standing as one that needs to be resolved quickly:

[Judge Allen’s] order presents substantial questions of law, which have broad implications not just for the parties to this litigation, but for all citizens and municipalities in Indiana. Given the significance of the Court’s Order, which opens the door to retroactive challenges to municipal commission members, and extensive litigation involving competing statutory interpretation and prospective appointments to municipal boards and commissions, the threshold issue of standing should be addressed sooner rather than later.

Bloomington also points to the cost of going through the whole process of a lawsuit, if Bloomington were to prevail in the end:

Respondents will be forced, at considerable expense of time and resources to the City of Bloomington and its taxpayers, to conduct potential lengthy discovery and defend against Petitioners’ claims. Such time-consuming and costly efforts could be avoided altogether if the appeal of Respondents’ Second Motion to Dismiss on the basis of standing is decided in Respondents’ favor.

Under court rules, an early decision on an issue to avoid substantial expense, or to settle a substantial question of law, to allow for a more orderly disposition of a case, are reasons for pursuing an interlocutory appeal.

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