A hen’s tooth grows in Bloomington: Court of appeals agrees to review ruling mid-trial in plan commission seat case

On Friday morning, a three-judge panel from the Indiana court of appeals decided unanimously that it would hear an appeal made in the middle of a trial about the rightful appointee to a Bloomington plan commission seat.

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.

Each side filed a brief with the court of appeals arguing that the court should either accept the case, or not. [Bloomington’s memorandum in support] [Ellis and Guenther’s memorandum in opposition]

An initial ruling went against the city of Bloomington, when local judge Erik Allen, out of Greene County, denied Bloomington’s motion to dismiss the case. The case is being handled by Allen, a special judge, after Monroe County judges recused themselves. Continue reading “A hen’s tooth grows in Bloomington: Court of appeals agrees to review ruling mid-trial in plan commission seat case”

Court of appeals could now weigh in on Bloomington plan commission case

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.

The case will decide who serves on Bloomington’s plan commission: Chris Cockerham or Andrew Guenther. 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. That includes tonight’s plan commission meeting, which starts at 5:30 p.m. Continue reading “Court of appeals could now weigh in on Bloomington plan commission case”

Column: Fighting hen’s tooth and nail over a Bloomington plan commission seat

The latest twist in the ongoing legal dispute over a seat on Bloomington’s plan commission came two weeks ago, when the city of Bloomington asked the local judge to allow for an interlocutory appeal of the judge’s first significant ruling.

The proud bird is part of a local backyard flock in Bloomington’s Elm Heights.

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.

The whole thing is discretionary. The two sides get to argue over whether the local judge should certify his ruling so that the court of appeals can decide if it wants to hear the case. Continue reading “Column: Fighting hen’s tooth and nail over a Bloomington plan commission seat”

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. Continue reading “Bloomington wants a quick appeal to intermediate ruling in lawsuit over disputed plan commission seat”

Disputed plan commission seat: Judge denies Bloomington’s bid to get case dismissed

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.

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Greene County courthouse, Bloomfield, Indiana, the home court of special judge Erik Allen, and the scheduled location of the Aug. 5 hearing. The hearing was switched to a telephonic conference. Image links to image source, which is Google Street View.

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.

For now, it’s Cockerham, a commercial real estate broker, who serves in the disputed seat. It 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. Continue reading “Disputed plan commission seat: Judge denies Bloomington’s bid to get case dismissed”

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.

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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. Continue reading “Plan commission lawsuit: Injunction filed against meetings; Bloomington wants amended complaint dismissed”

Amendment filed in lawsuit over Bloomington plan commission seat

An amended complaint filed on Monday, in the already pending lawsuit over a Bloomington city plan commission seat, adds a new legal question to the mix.

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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.

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.

When Hamilton did not appoint anyone to the seat for 90 days, Monroe County Republican Party chair William Ellis announced he had the authority to make the appointment, and chose Andrew Guenther to fill the seat.

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?

It’s a matter of political party affiliation. Kappas did not have one, from the time he was appointed through his time of service on the plan commission. Continue reading “Amendment filed in lawsuit over Bloomington plan commission seat”

Bloomington files for dismissal of case over disputed plan commission 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.

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Chris Cockerham (left) and  Andrew Guenther (right) have claims to the same seat on Bloomington’s plan commission. Cockerham, the mayoral appointment, is now serving on the commission. Guenther has filed suit challenging that appointment.

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 the lawsuit, would-be plan commissioner Guenther and GOP chair William Ellis ask the court to grant a writ of quo warranto, which is a challenge to someone’s right to hold office.

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 that “the member whose has term expired,” namely Nick Kappas, was not a Republican.

Continue reading “Bloomington files for dismissal of case over disputed plan commission seat”

Partisan case for partisan judges: Who rules on lawsuit over Bloomington plan commission seat?

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Art based on one of the recusals made by assigned judges in Guenther & Ellis v. Cockerham & Hamilton.

On June 9, a lawsuit was filed in Monroe County’s circuit court disputing the mayoral appointment of the plan commission seat where Chris Cockerham had sat the day before.

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.

What makes picking a judge a challenge for this case? Partisanship. Continue reading “Partisan case for partisan judges: Who rules on lawsuit over Bloomington plan commission seat?”

Lawsuit now filed in dispute over Bloomington plan commission seat

On Tuesday, a lawsuit was filed over the disputed seat on Bloomington’s plan commission.

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Chris Cockerham (left) took his seat on the plan commission on Monday night, as Andrew Guenther (right) asserted a claim to the seat in the Zoom video conference chat window. A lawsuit was filed on Tuesday over the seat.

In the lawsuit, would-be plan commissioner Andrew Guenther and Monroe County GOP chair William Ellis ask the court to grant a writ of quo warranto, which is a challenge to someone’s right to hold office.

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.

Cockerham has already served as planning commissioner for one meeting, on Monday this week.

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.

How does Ellis argue that he has the authority as Monroe County GOP chair to make a plan commission appointment that’s normally made by the mayor? Continue reading “Lawsuit now filed in dispute over Bloomington plan commission seat”