Dvorak v. City of Bloomington

• Decision Date: 17 May 2002
• Docket Number: No. 53A01-0105-CV-188.,53A01-0105-CV-188.
• Citation: 768 N.E.2d 490
• Parties: Peter DVORAK, Imram Aziz, Brian Gach, Eric Himes, Scott Albright, and Alan Lutz, Appellants-Defendants, v. CITY OF BLOOMINGTON, Appellee-Plaintiff.
• Court: Indiana Appellate Court

768 N.E.2d 490

Peter DVORAK, Imram Aziz, Brian Gach, Eric Himes, Scott Albright, and Alan Lutz, Appellants-Defendants, v. CITY OF BLOOMINGTON, Appellee-Plaintiff.

No. 53A01-0105-CV-188.

Court of Appeals of Indiana.

May 17, 2002.

Michael L. Carmin, Andrews, Harrell, Mann, Carmin & Parker, P.C., Bloomington, IN, Julia Blackwell Gelinas, Nelson D. Alexander, Locke Reynolds LLP, Indianapolis, IN, Attorneys for Appellants.

R. Michael Flory, City of Bloomington, Bloomington, IN, Attorney for Appellee.

J. Alexander Tanford, Bloomington, IN, Kenneth J. Falk, Indianapolis, IN, Attorneys for Amicus Indiana Civil Liberties Union. Michael J. Lewinski, Timothy E. Ochs, Ice Miller, Attorneys for Amicus Indiana Association of Cities & Towns.

OPINION

KIRSCH, Judge.

Peter Dvorak, Imram Aziz, Brian Gach, Eric Himes, Scott Albright, and Alan Lutz (Appellants) appeal the trial court's adverse decision on the complaint filed against them by the City of Bloomington (City). They present the following issues for appeal:

I. Whether a municipal zoning ordinance is state action for purposes of an Equal Privileges and Immunities challenge.

II. Whether a zoning ordinance restricting the number of unrelated adults who may reside in the same house violates the Equal Privileges and Immunities Clause of Article I, Section 23 of the Indiana Constitution where the City's stated objectives for such an ordinance are to control trash, noise, and traffic and to maintain core neighborhoods by reducing adult population density.¹

We reverse.

FACTS AND PROCEDURAL HISTORY

Peter Dvorak is the owner of a residential property in Bloomington. On April 23, 1996, the City filed a complaint against Dvorak, claiming that he violated a zoning ordinance in the Bloomington Municipal Code (Ordinance) by permitting the property to be occupied by more than the designated number of adults who were unrelated by blood, marriage, or adoption.² The City alleged that the remaining five Appellants violated the Ordinance by occupying the residence.

The City's complaint sought to enjoin Dvorak from future use of the property inconsistent with the Ordinance and to impose a fine of $2,500 per day from the time the violation began until the time it ceased.

Appellants filed a motion for summary judgment, claiming that the Ordinance was void as an ultra vires act, that it violated the Equal Privileges and Immunities Clause of the Indiana Constitution, and that it violated the concept of due process embodied in the Indiana Constitution. After a hearing and the submission of briefs by the parties, the trial court denied the motion, finding that the Ordinance was neither ultra vires nor unconstitutional. At Appellants' request, the trial court certified the ruling for interlocutory appeal. On appeal, we vacated the decision of the trial court and remanded for further proceedings, including a determination of the goals the Ordinance was designed to promote. See Dvorak v. City of Bloomington, 702 N.E.2d 1121 (Ind.Ct.App.1998) ("Dvorak I").

On March 1, 2000, the trial court conducted a bifurcated bench trial on the constitutionality of the Ordinance. It subsequently issued a judgment finding the Ordinance constitutional. After a motion to correct error challenging the inclusion in the trial court's judgment of findings related to the breach of the Ordinance in this case, the trial court issued an order granting the motion to correct error. On April 6, 2001, the trial court entered an agreed order on the remaining issues. Appellants now appeal.

DISCUSSION AND DECISION

I. State Action

Neither party discusses whether the Equal Privileges and Immunities Clause of the Indiana Constitution applies to actions of a municipal zoning authority. However, Amicus Indiana Civil Liberties Union argues that the City's actions are subject to Equal Privileges and Immunities analysis.

Article I, Section 23 of the Indiana Constitution provides: "The General Assembly shall not grant to any citizen, or any class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Thus, by its express terms, the provision applies only to acts of the General Assembly. However, the clause has been interpreted broadly: "`Since [Haas v. South Bend Comm. Sch. Corp., 259 Ind. 515, 289 N.E.2d 495 (1972) ], the supreme court has not limited application of Art. I, § 23 to actions of the general assembly. Therefore, when the state is sufficiently involved to treat decisive conduct as state action, Art. I § 23 applies.'" Palin v. Indiana State Pers. Dep't, 698 N.E.2d 347, 353-54 (Ind.Ct.App.1998) (quoting Indiana High Sch. Athletic Ass'n v. Avant, 650 N.E.2d 1164, 1169 (Ind.Ct.App.1995), overruled on other grounds by Indiana High Sch. Athletic Ass'n v. Reyes, 694 N.E.2d 249 (Ind. 1997) (footnote omitted)). Courts have therefore employed the "state action" test to determine whether a plaintiff may invoke the Equal Privileges and Immunities Clause. Lutz v. Fortune, 758 N.E.2d 77, 84 (Ind.Ct.App.2001). In order for there to be state action, it must be determined that 1) the claimed deprivation has resulted from the exercise of a right or privilege having its source in governmental authority; and 2) there is some figure present in the action who can be fairly characterized as a state actor. Osmulski v. Becze, 638 N.E.2d 828, 833 (Ind.Ct.App.1994); Wilson v. Kauffman, 563 N.E.2d 610, 612 (Ind.Ct. App.1990), trans denied cert. denied 502 U.S. 968, 112 S.Ct. 439, 116 L.Ed.2d 458 (1991).

While we have found no Indiana cases discussing the applicability of the Clause in the case of a municipal zoning authority, Indiana courts have applied the Clause in a variety of other situations. See Indiana High Sch. Athletic Ass'n v. Carlberg, 694 N.E.2d 222, 229 (Ind.1997) (decisions of the IHSAA with respect to student-athletes constitute state action for purposes of review under the Equal Protection and the Privileges and Immunities Clause); Palin, 698 N.E.2d at 353-54 (decisive actions of administrative agency may be state action); Osmulski, 638 N.E.2d at 833 (motion for an automatic change of venue filed by litigant was state action because it was based on court rules); Wilson, 563 N.E.2d at 612 (litigant's use of a statutorily granted peremptory challenge is an exercise of a right rooted in governmental authority).

Here, the claimed deprivation, exclusion from certain neighborhoods, has resulted from the exercise of the City's zoning power, a power granted to local governments by the state. The City's municipal zoning body can also fairly be characterized as a state actor, as it is a unit of municipal government. Accordingly, we hold that the acts of a city through its municipal zoning authority are state action subject to the Equal Privileges and Immunities Clause. In doing so, we note that our decision today comports with the treatment that Indiana courts have historically given municipalities in Equal Privileges and Immunities Clause challenges. See Kersey v. City of Terre Haute, 161 Ind. 471, 68 N.E. 1027 (1903) (applying Privileges and Immunities Clause to municipal taxation scheme). See also Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (holding that municipal ordinances adopted under state authority constitute state action and are subject to equal protection analysis under United States Constitution).

II. Equal Privileges and Immunities Challenge

Appellants claim that the Ordinance violates the Privileges and Immunities Clause of the Indiana Constitution. When we review a constitutional challenge to a municipal ordinance, we consider the ordinance to stand on the same footing as an act of the legislature. Dvorak I, 702 N.E.2d at 1124 (citing Whitewater Valley Canoe Rental, Inc. v. Bd. of Franklin County Comm'rs, 507 N.E.2d 1001, 1004 (Ind.Ct.App.1987), trans. denied). Accordingly, a zoning ordinance is cloaked with a presumption of constitutionality. Cowart v. State, 756 N.E.2d 581, 583 (Ind. Ct.App.2001), trans. denied (2002); Dvorak I, 702 N.E.2d at 1124.

Upon appellate review, we accord the ordinance every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Dvorak I, 702 N.E.2d at 1124 (citing State v. Costas, 552 N.E.2d 459, 461 (Ind.1990) (discussing standard of review for constitutional challenge to a statute)). Before an ordinance will be declared repugnant to the Constitution, its fatal constitutional defects must be clearly apparent. Id. An ordinance is not unconstitutional simply because the court might consider it born of unwise, undesirable, or ineffectual policies. Id.

Equal privileges and immunities analysis uses a single standard to determine whether a law violates the Indiana Constitution as opposed to a system of varying degrees of scrutiny depending on whether the classification involves a suspect class or a fundamental right, as with Fourteenth Amendment analysis. Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994). That standard consists of two requirements. First, the differential statutory treatment must be reasonably related to inherent characteristics that distinguish the unequally treated class. Ben-Yisrayl v. State, 753 N.E.2d 649, 656 (Ind.2001), petition for cert. filed, No. 01-8443 (Feb. 1, 2002); Schulz v. State, 731 N.E.2d 1041, 1045 (Ind.Ct.App.2000), trans. denied. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Ben Yisrayl, 753 N.E.2d at 656; Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 696 (Ind.2000). Courts must employ this standard while giving substantial deference to the legislature. Boggs, 730 N.E.2d at 696; Collins, 644 N.E.2d at 80; Schulz, 731 N.E.2d at 1045.

Here, Appellants assert that the Ordinance fails both prongs of the Equal Privileges and Immunities analysis.³ First, they argue that the disparate treatment is not reasonably...