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. Continue reading “Disputed plan commission seat: Court of appeals rules against Bloomington”

Case of disputed Bloomington plan commission seat gets final papers filed, now wait begins on court of appeals

On Friday morning, the city of Bloomington filed its last brief with the state’s court of appeals, in the case that will decide who has the rightful claim to a Bloomington city plan commission seat.

Screenshot of the disputed plan commission seat history from the city of Bloomington’s onBoard system for organizing information about city boards and commissions. Image links to onBoard.

Is it Chris Cockerham, the appointment made in summer 2020 by Bloomington’s mayor, Democrat John Hamilton? Or is it Andrew Guenther, the appointment made earlier, in the spring of 2020, by Monroe County GOP chair William Ellis?

Both Cockerham and Guenther are currently Republicans, under the statutory definition of party affiliation. The appointee could not be a Democrat, because that would exceed the limit of appointees who are members of the same political party.

Now starts the wait for the court of appeals to decide how to handle the case. It seems somewhat unlikely that the whole lawsuit would be wrapped up before the plan commission considers the question of an upcoming citywide zone map revision. Cockerham has bee serving on the plan commission since summer 2020.

Bloomington lost its initial motion to dismiss the case, which was filed by Guenther and Ellis last June. Continue reading “Case of disputed Bloomington plan commission seat gets final papers filed, now wait begins on court of appeals”

Bloomington plan commission lawsuit: Appeals court has almost all papers for decision on standing

In the lawsuit filed last year over a rightful appointment to the Bloomington plan commission, a responding brief was due on Friday to the court of appeals.

Screenshot of Bloomington’s onBoard system for maintaining information about boards and commissions. Image links to onBoard.

It came from  would-be commissioner Andrew Guenther and would-be appointing authority, GOP county chair William Ellis.

Their brief responded to the city of Bloomington and mayor John Hamilton’s initial substantive filing with the court, which was made on Jan. 21.

The city’s brief  outlined why Bloomington thinks the court of appeals should overturn the lower court’s ruling, which was in favor of Guenther and Bloomington, and denied Bloomington’s attempt to dismiss the case.

Bloomington contends that the mayor made a valid appointment to the plan commission last summer in Chris Cockerham, who is a commercial real estate broker.

The city of Bloomington could still file a reply to Friday’s brief, but would have just seven days to do that, based on the accelerated timeline granted by the court of appeals last December.

After the deadline for a reply expires, it will be up to the court of appeals to decide.

It seems somewhat unlikely that the whole lawsuit would be wrapped up before the plan commission considers the question of an upcoming citywide zone map revision.

But the timeframe for the map revision had originally called for a plan commission review in the second half of January, and that scheduling has slipped. A revised timeline for the zone map revision has not yet been announced, but it’s not expected to slide by more than a month or two.

Cockerham is currently serving on the commission. Continue reading “Bloomington plan commission lawsuit: Appeals court has almost all papers for decision on standing”

Plan commission lawsuit update: Bloomington makes First Amendment argument against GOP reading of statute

In the ongoing lawsuit over the rightful appointee to Bloomington’s plan commission, Bloomington’s most recent brief has introduced an argument that has not been a part of its previous papers.

The argument is based on the clause of the First Amendment that establishes a right of free association, or non-association.

The lawsuit is now in front of the court of appeals, after Bloomington lost an initial ruling seeking dismissal.

Currently serving on the plan commission since last summer, as the mayor’s appointee, is commercial real estate broker Chris Cockerham.

Litigating the right of Bloomington mayor John Hamilton to make the appointment is Monroe County Republican Party chair William Ellis, who appointed Andrew Guenther, a city environmental commissioner, to the same seat. Continue reading “Plan commission lawsuit update: Bloomington makes First Amendment argument against GOP reading of statute”

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.

Greene County Courthouse Screen Shot 2020-08-05 at 12.25.18 PM
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”