Disputed plan commission seat: Court of appeals rules against Bloomington

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.

Ellis made his appointment under a state statute that gives a party chair the right to make the appointment if the mayor does not make it in a timely way—within 90 days after the expiry of the appointee’s term.

Hamilton’s appointment of Cockerham came after Ellis announced he had appointed Guenther. Cockerham has been serving as Bloomington mayor John Hamilton’s appointee to the city’s plan commission since summer 2020.

Tuesday’s ruling from the court of appeals, affirming the denial of Bloomington’s motion to dismiss, arose from an appeal that was made before the lower court case was over. The special kind of appeal used during a lower court’s hearing is called an interlocutory appeal. So now it will go back to judge Allen for adjudication on the questions of law in the case.

Some of Bloomington’s arguments that Ellis and Guenther lacked standing were intertwined with arguments on the questions of law raised by the case. So the ruling that Ellis and Guenther do, in fact, have standing might be analyzed in their favor on the questions of law.

The mid-Tuesday press release issued by Guenther does not assume a final outcome in his favor. The release states, “The 3-0 decision by the Court of Appeals clears the way for both parties in the case to proceed with discovery and then trial, putting this case one step closer to being resolved after being filed in June of 2020.”

Questions of standing

The only specific question to be reviewed by the court of appeals was whether Guenther and Ellis have legal standing to file the case.

About the question of standing, the court of appeals said: “We conclude that [Guenther and Ellis] have stated sufficient facts to demonstrate that they have standing to bring their complaint for declaratory judgment and request for a writ of quo warranto.” A writ of quo warranto is a legal device  used to challenge someone’s right to hold a public office.

The court continued, “Clearly, Petitioners have a personal stake in the outcome of the proceedings, and such is distinct from that of the general public.”

The ruling includes the statement, “[U]nder [Guenther and Ellis’s] interpretation of IC 36-1-8-10(b) and (d), Ellis had the rightful authority as Chairman of the Republican Party to appoint Guenther to the Plan Commission and Mayor Hamilton usurped that authority when he rejected that appointment and instead appointed Cockerham.” [IC 36-1-8-10]

Questions of law

Tuesday’s court of appeals ruling points to the fact that the matters of law in the case are yet to be adjudicated: “The resolution of the underlying dispute is a matter of statutory interpretation. In this appeal, however, we need only consider whether Petitioners have standing to challenge the construction and interpretation of the relevant statutes.”

The questions of law involve partisan balancing requirements for boards and commissions, like a city plan commission, and the way those requirements should be interpreted in the context of the state statute that Ellis relied on when he appointed Guenther.

Monroe Republican Party chair William Ellis claimed that the appointment to fill the vacancy on the Bloomington plan commission at the start of 2020 was his to make, under IC 36-1-8-10. The claim is based on the idea that Bloomington’s mayor, Democrat John Hamilton, did not fill the vacancy within 90 days of the end of the previous appointee’s term.

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 since summer 2020, and Guenther, who filed suit in early June 2020, are Republicans.

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 the 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?

Here’s how the state statute currently reads [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.

Impact on UDO hearings

It’s not clear what the immediate impact of Tuesday’s ruling will be on the plan commission’s recent work towards a significant revision to the city’s unified development ordinance (UDO) and the citywide zoning map.

On Monday, the day before the court of appeals ruling was issued, the plan commission concluded its votes on recommendations for a 10-ordinance package of UDO revisions.

One of the proposed ordinances was amended on a 5–4 vote—to allow duplexes as a permitted use in R1, R2, R3, and R4 zoning districts. Cockerham was on the prevailing side of that vote.

Responding to a question from The Square Beacon, Ellis and Guenther’s attorney, Carl Lamb, said that if Guenther is found to be the rightful appointee to the disputed seat, then potentially every vote taken by the plan commission with Cockerham’s participation could be contested.

[Added April 7, 2021, 3:15 p.m.] On Wednesday afternoon, Bloomington’s communication director Yael Ksander relayed a statement from the city’s legal team about the validity of Cockerham’s votes: “Indiana courts have long recognized and applied the ‘de facto officer doctrine.’ In its briefest formulation, from the United States Supreme Court, the de facto officer doctrine ‘confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.’ Ryder v. United States, 515 U.S. 177, 180 (1995).”

The statement from the city’s attorneys continued, “there is no question that Commissioner Cockerham satisfies the elements required to fit within the protection of the de facto officer doctrine, and his actions cannot be subsequently called into question.”

One thought on “Disputed plan commission seat: Court of appeals rules against Bloomington

  1. The case against Kappas’s appointment seems legally ironclad and moot. I thought the case against Cockerham’s appointment had to do with the 90-day deadline. (?)

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