Cantwell v. Hudnut, Civ. A. No. IP 75-721-C.

Decision Date09 September 1976
Docket NumberCiv. A. No. IP 75-721-C.
PartiesPaul CANTWELL et al., Plaintiffs, v. William H. HUDNUT, III, Mayor of Indianapolis, et al., Defendants.
CourtU.S. District Court — Southern District of Indiana


Edward O. DeLaney, of Barnes, Hickam, Pantzer & Boyd and Theodore R. Boehm of Baker & Daniels, Indianapolis, Ind., for plaintiffs.

Harry T. Ice and George B. Gavit, of Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for defendants.



STECKLER, Chief Judge.

I. The Historical Background

1. This litigation relates to the constitutionality of the provisions of the "Consolidated First-Class Cities and Counties Act" IC 18-4-1-1 et seq. commonly referred to as "The Uni-Gov Act"1 dealing with the composition of the "special service district" councils. The pertinent parts of the Act took effect on June 30, 1969 and January 1, 1970. IC XX-X-XX-X. Both prior to and after the passage of Uni-Gov the City of Indianapolis was wholly within Marion County, Indiana. The city residents totalled somewhat more than 60% of the population of the county. It was the only "First Class" city in the State. Like most other American cities, however, it was within a County which had powers of its own. Pursuant to the Uni-Gov Act, the then City of Indianapolis was abolished as a separate entity and merged into the Consolidated City of Indianapolis which consists of the then City together with the rest of Marion County. See IC 18-4-1-3. The other large local units, the City of Beech Grove and the towns of Lawrence and Speedway, were excluded from the consolidation and retained their own separate local governments.2 The Uni-Gov Act provided for a mayor to be elected county-wide and a city county council of 29 members, 25 from single member districts and 4 to be elected from the county at-large.

2. Uni-Gov did not provide for a complete consolidation of metropolitan government. Although the right to participate in the election of the mayor of Indianapolis was extended to all residents of Marion County, certain other services were left as before. Notable among these were police and fire services which continued to be performed by the Indianapolis police and fire departments for the area that used to be the City and by the Marion County Sheriff and various fire departments for the remainder of the county. The area of the police and fire special service districts could be extended by the City-County Council and some insignificant areas have been added.

3. The Uni-Gov Act specifies two "special service districts" at issue here.3 The first is the Police Special Service District which was set up with boundaries coterminous with that of the now-dissolved City of Indianapolis. IC XX-X-XX-X(b). The Fire Special Service District was set up at the same time and with the same boundaries. IC XX-X-XX-XX(b). Provision was made for future expansion of the boundaries of these districts. IC XX-X-XX-X and IC XX-X-XX-XX. Special Service Districts are defined by the act as having the "purpose of providing the property owners therein with a service or services." IC 18-4-1-2(l) and 18-4-15.5-1(p). The districts are separate bodies corporate without the power to issue general obligation bonds. IC 18-4-1-2(l). These districts provide police and fire service for the area of the former city.

4. The Act sets up a legislative body, or "council", for each special service district. As originally enacted in 1969 it provided that the members were to come from the combined city-county council as follows:

"A `Special Service District Council' shall be comprised of the members of the City-County Council elected from all those districts which encompass any part of a Special Service District" Acts 1969, ch. 173, § 102(m).

In 1970 this Court entered its judgment in Bryant v. Whitcomb, which observed, inter alia, that the statute as it read was ambiguous as to whether the at-large members of the city-county council were to sit on the special service district councils. Since their presence would raise serious constitutional issues, the court construed § 102(m) not to permit the at-large council members to sit on the special service district councils. The City-County Council's response to the Bryant opinion came in the form of Ordinance No. 48 Indianapolis Code § 2-84 now repealed.

5. In 1971, after Ordinance 48, § 102(m) was amended by Acts 1971, P.L. 258, § 1, to read as follows:

18-4-1-2(m). A "Special Service District Council" shall be composed of all the members of the City-County Council elected from an electoral district consisting of the entire County, provided sixty per cent 60% or more of the population in the county is encompassed within the territorial limits of said District. Such council shall also consist of any member of the city-county council elected from a single electoral district under IC 1971 18-4-3-6 with fifty per cent 50% or more of its population within the territorial limits of said special service district.
Where the population of a special service district is less than sixty per cent 60% of the entire county at any time, the members elected from the electoral district consisting of the entire county shall cease to be members of the Special Service District Council. Where the population of a portion of a Special Service District within a single electoral district falls below, or rises above, such fifty per cent 50%, the members shall cease to be, or shall become, respectively, a member of the Special Service District Council. Such Special Service District Council shall also include members who are appointed to fill vacancies in any district from which any Special District Council member was elected.

As a result of the 1971 amendment, the statute clearly provided for the selection of members of the special service district councils by constituencies including substantial numbers of non-residents of the districts.4 The ambiguity found in Bryant was removed.

6. As originally established, the Special Service District Councils had the following powers:

The Special Service District Council of any Special Service District shall, with respect to such District have exclusive power by ordinance to approve its budget and make appropriations and tax levies required to be made under applicable law therefor; and that shall be its sole function. Acts 1969, ch. 173, § 405.

This Court in its opinion in Bryant declared the statutory limitations on the authority of the Special Service District Councils over legislation relating solely to the districts unconstitutional on the basis that it diluted the voting rights of the residents of the districts. The possibility of effective control of the districts by the City-County Council was the source of this problem. It was left to the City-County Council to deal with the problem. In Ordinance No. 48 that body set up a procedure allowing the Special Service District Councils legislative control of affairs within their purview and this was incorporated into the judgment in Bryant.

7. However § 405 was then amended by 1971, P.L. 258, § 6 to read as follows:

18-4-4-5. Special service district council.—The special service district council of any special service district shall, with respect to such district have exclusive power by ordinance to approve its budget and make appropriations and tax levies required to be made under the provisions of this article XX-X-X-X-XX-X-XX-XX. No special service district council shall have authority to originate or separately to adopt any other ordinance. However any ordinance adopted by the city-county council relating solely or exclusively to a special service district shall be suspended and of no effect until separately approved and concurred in by a majority of a special service district council when, but only when, the Constitution of the United States or the Constitution of the state of Indiana prohibits such ordinance taking effect without such approval.

The effect of this structure is that except for fiscal matters the special service district councils are again able to be controlled by the 29 member city-county council which includes both the four at-large members and nine councilmen from districts outside the special service districts.5

8. Thus as of the date of the judgment entry in Bryant (March 6, 1970) this Court found no constitutional problems remaining in the structure or functioning of the special service districts and entered judgment for the defendants. As of that moment in time Uni-Gov was a functioning reality with the scope and membership of the Special Service District Councils set by statute and an interpretative ordinance. In the interim since March 6, 1970 this structure was changed by Acts 1971 P.L. 258 as set forth above and by the repeal of Ordinance 2-84. In sum, P.L. 258 did the following: (1) it restored the at-large councilmen to the special service district councils. (P.L. 258 § 1 quoted supra at para. 5) and (2) it restricted the functions of these councils, (P.L. 258 § 6, (quoted supra at para. 6). The repeal of Ordinance 2-84 in 1976 only served to confirm these effects and constituted an approval of P.L. 258 by the defendants herein. The same repeal leaves the special district councils with only fiscal powers and no effective device to police the use of this power. Neither P.L. 258 nor the repeal of Ordinance 2-84 were shown to be a response to any change in the structure, functioning or area served by the two special service districts at issue. Neither P.L. 258 nor the repeal of Ordinance 2-84 was shown to contribute in any way to the creation or continuation of Uni-Gov. Thus, any Constitutional defects found therein will not be able to be justified by any progress towards metropolitan consolidation. The services at issue were not consolidated in 1969 nor since.

II. The Parties

9. Plaintiffs Cantwell,...

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