City of South Bend v. Kimsey

• Decision Date: 17 July 2001
• Docket Number: No. 71A03-0101-CV-13.,71A03-0101-CV-13.
• Citation: 751 N.E.2d 805
• Parties: CITY OF SOUTH BEND, Appellant-Defendant, v. John KIMSEY and Denise Kimsey Bradley Hall and Carole Hall Terry Trethewey and Cheryl Trethewey Together with the Remaining Property Owners who are Signatories Hereto and who are Too Numerous to be Included in the Caption of this Remonstrance Complaint, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

751 N.E.2d 805

CITY OF SOUTH BEND, Appellant-Defendant, v. John KIMSEY and Denise Kimsey Bradley Hall and Carole Hall Terry Trethewey and Cheryl Trethewey Together with the Remaining Property Owners who are Signatories Hereto and who are Too Numerous to be Included in the Caption of this Remonstrance Complaint, Appellees-Plaintiffs.

No. 71A03-0101-CV-13.

Court of Appeals of Indiana.

July 17, 2001.

Aladean M. Derose, South Bend, Indiana, Attorney for Appellant.

Don G. Blackmond, Lynn M. Butcher, South Bend, Indiana, Attorneys for Appellees.

OPINION

BAILEY, Judge

Case Summary

Appellant-Defendant City of South Bend, Indiana ("the City") appeals following an order denying annexation of land by the City in a remonstrance action commenced by St. Joseph County land owners, Appellees-Plaintiffs John Kimsey, et al. ("the Remonstrators"). We affirm.

Issue

The City presents for review a single issue: whether Indiana Code section 36-4-3-13(g) [formerly XX-X-X-XX(e) ] is special legislation prohibited by Article IV, sections 22 and 23 of the Indiana Constitution.

Facts and Procedural History

On July 22, 1996, the Common Council of the City of South Bend, Indiana enacted Ordinance No. 8692-96 for the annexation of lands commonly known as the "Copperfield Annexation Area." On September 23, 1996, the Remonstrators filed a complaint in the St. Joseph Superior Court opposing the annexation. The City filed a Motion to Dismiss for Failure to State a Claim. Following a hearing held on December 4, 1996, the motion was denied. The City counterclaimed, seeking a declaratory judgment that Indiana Code section 36-4-3-13(e) was unconstitutional. On October 9, 1997, the City filed a Motion for Summary Judgment. (R. 76-77.) The Indiana Attorney General appeared, alleging the City's lack of standing to pursue the constitutional challenge. On April 30, 1999, the trial court entered an order concluding that the City had standing to raise the issue of the constitutionality of Indiana Code section 36-4-3-13. The Attorney General sought an interlocutory appeal. Following hearings held on July 21, 1999 and on August 11, 1999, the trial court denied the petition for certification for interlocutory appeal.

A summary judgment hearing was held on January 25, 2000. The City's motion for summary judgment was denied on March 6, 2000. The order provided in pertinent part:

The City claims subsection (e) is unconstitutional, specifically that it violates Article IV, Section 23:

In all cases enumerated in the preceding Section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.

While counsel concede that the 200,000 to 300,000 population category applied at the time of enactment, and still applies, to but one county—St. Joseph— there is nothing in the wording that would prevent other counties from ultimately being included depending upon future demographic changes. `The mere fact that no other county presently qualifies does not render the Act unconstitutional.' Dortch v. Lugar, (1971) , 266 N.E.2d 25, at page 31. (referring to the 1969 `Unigov' act).

Assuming the validity of the population based criterion, `population must bear some rational relationship to the subject matter.' North Tp. Advisory Bd. v. Mamala (1986) 490 N.E.2d 725, at p. 727. Unfortunately, counsel stipulated that no legislative history exists concerning the 1993 amendment.

I.C. XX-X-X-XX(a) through (d) recites the requirements the city must fulfill in order to annex. If it is able to do so `the court shall order a proposed annexation to take place.' (emphasis added). Subsection (e), however, creates what might be characterized as an `affirmative defense' available to the remonstrators in a 200,000 to 300,000 population county. If they can adduce convincing evidence showing the existence of (e)(2)(A),(B), and (C) the court `shall ... Order a proposed annexation not to take place.' (emphasis added). Subsection (e) has placed smaller counties (population of less than 200,000) and larger counties (population of more than 300,000) in the same legal category and given what might be called medium sized counties a special status the other two lack.

`An act of the legislature must be afforded a presumption of constitutionality. The challenger of the statute bears the burden to rebut that presumption and all reasonable doubts must be resolved in favor of the statute's constitutionality. Ruge v. Kovach (1984), Ind., 467 N.E.2d 673. When the challenge is to a statutory classification, the petitioner must demonstrate that the classification is arbitrary or capricious or does not bear a reasonable relationship to the legislative objective. Board of Commissioners of the County of Allen v. Jones (1983), Ind.App., 457 N.E.2d 580. North Tp. Advisory Bd., at p. 726.'

The loss of rural land in this and other states has become a concern of which the court takes judicial notice. Arguably, subsection (e) reflects a political decision by the General Assembly that urbanization in this state should be restricted and that: (a) counties of more than 300,000 people have already lost their rural character and (b) that counties of less than 200,000 people are not at risk.

(R. 337-38.) On April 7, 2000, the City filed a Motion to Reconsider Order. On April 12, 2000, the trial court denied the Motion to Reconsider. On the day of trial, the City filed a stipulation of facts, conceding that the factual prerequisites of Indiana Code section 36-4-3-13(e) were established, such that the trial court could properly reach the Constitutional issue. On November 27, 2000, the trial court entered the following order:

This cause having been set for trial on November 27, 2000, and the City of South Bend having submitted a Stipulation of Facts for Trial as to which the Remonstrators make no objection, the Court hereby adopts the City of South Bend's Stipulation of Facts for Trial and incorporates them as if fully recited herein. It is, therefore, ORDERED, that pursuant to IC XX-X-X-XX(e), the City of South Bend's annexation within its corporate boundaries of the land identified in South Bend Ordinance # 8692 commonly known as the "Copperfield Annexation Area" shall not take place.

(R. 355.) From this order the City appeals.

Discussion and Decision

I. Standard of Review

We will presume a statute to be constitutional, and a challenger, against whom all doubts are resolved, must overcome that presumption by clearly demonstrating the provision to be invalid. State v. Hoovler, 668 N.E.2d 1229, 1232 (Ind. 1996), cert. denied, 524 U.S. 905, 118 S.Ct. 2062, 141 L.Ed.2d 140 (1998). If two reasonable interpretations of a statute are available, one of which is constitutional and the other not, we will uphold the statute because we will not attribute unconstitutional intention to the legislature if reasonably avoidable. Price v. State, 622 N.E.2d 954, 963 (Ind.1993). Unless the challenged statute is incapable of constitutional application, the court should limit itself to vindicating the rights of the party before it. Id. at 958.

II. Analysis

The City claims that Indiana Code section 36-4-3-13(g) [formerly XX-X-X-XX(e)] is "special legislation" in derogation of Sections 22 and Section 23 of Article IV of the Indiana Constitution because it is legislation which applies solely to one county.

Article IV, Section 22 of the Indiana Constitution prohibits local or special laws on subjects falling in any of sixteen categories. Article IV, Section 23 provides: "In all the cases enumerated in the preceding Section [Article IV, Section 22], and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State."

A local or special statute, unlike a general statute, is one that applies not to the entire state but to a particular area, person, class of persons or set of circumstances exclusively. Hoovler, 668 N.E.2d at 1233. The drafters of Indiana's Constitution expressed a preference for general laws, but recognized that special laws are sometimes necessary. Id. Accordingly, a local or special law is not ipso facto unconstitutional. Id. If the subject matter of a law is entirely local, the subject is not amenable to a uniform law of general applicability, and thus, a law applicable to the local subject does not violate the Indiana Constitution. In re Train Collision at Gary, 654 N.E.2d 1137, 1141 (Ind.Ct.App. 1995), trans. denied.

At the outset, we observe that the challenged statute, which deals with annexation, does not fall within any of the categories enumerated in Section 22.¹ Accordingly, the dispositive inquiry is whether the challenged statute violates Section 23.² At issue here is the validity of Indiana Code section 36-4-3-13(g) [formerly XX-X-X-XX(e) ], which provides:

This subsection applies only to cities located in a county having a population of more than two hundred thousand (200,000) but less than three hundred thousand (300,000). However, this subsection does not apply if on April 1, 1993, the entire boundary of the territory that is proposed to be annexed was contiguous to territory that was within the boundaries of one (1) or more municipalities. At the hearing under section 12 of this chapter, the court shall do the following:

(1) consider evidence on the conditions listed in subdivision (2).

(2) Order a proposed annexation not to take place if the court finds that all of the following conditions exist in the territory proposed to be annexed:

(A) The following services are adequately furnished by a provider other than the municipality seeking the annexation:

(i) Police and fire protection.

(ii) Street and road maintenance.

(B) The annexation will have a significant financial impact on the residents or owners of land.

(C) One (1) of the following opposes the annexation:

(i) A majority of the owners of land in the territory proposed to be

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