Jones v. Womacks
| Decision Date | 24 August 2006 |
| Docket Number | No. 49A02-0509-CV-853.,49A02-0509-CV-853. |
| Citation | 852 N.E.2d 1035 |
| Parties | Bruce JONES, Appellant-Plaintiff, v. Martha WOMACKS, in her official capacity as Marion County Auditor, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Kenneth J. Falk, American Civil Liberties Union of Indiana, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant, Bruce Jones, brought suit against Appellee, Martha Womacks in her capacity as Marion County Auditor, claiming that Indiana Code § 6-1.1-20-3.2 (Burns Code Ed. Supp.2005), which governs petition and remonstrance procedures for building projects proposed by political subdivisions, was unconstitutional. The trial court ultimately granted summary judgment in favor of Womacks. Upon appeal, Jones claims that the trial court erred in granting summary judgment, arguing both that the current case is not moot and that the statute at issue violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in that it restricts the right to participate in the petition/remonstrance process to owners of real property living within the political subdivision.
The State1 agrees with Jones's statement of the facts, which reveal that the Indianapolis Public Schools ("IPS") has a plan, known as the Capital Improvement Program, to renovate, expand, and remodel its existing school facilities. The plan is estimated to cost in excess of $800 million. The plan will be funded by IPS incurring property tax-backed debt. IPS is proceeding with the plan in stages, with $250 million in debt having already been incurred and IPS taking steps to raise $200 million more. It is the process of raising this latter $200 million which is at issue in the present case.
Because IPS was planning to incur debt, notice was sent pursuant to Indiana Code § 6-1.1-20-3.1 (Burns Code Ed. Supp. 2005). Section 3.1 states that a political subdivision, such as IPS, may not impose property taxes to pay debt service or lease rentals without completing several procedures, among which is that a notice be published,2 which "must include the following information:
* * *
(E) A statement that any owners of real property within the political subdivision who want to initiate a petition and remonstrance process against the proposed debt service or lease payments must file a petition that complies with subdivisions (4) and (5) not later than thirty (30) days after publication in accordance with IC 5-3-1." I.C. § 6-1.1-20-3.1(3).
After giving the appropriate notice, a "petition requesting the application of a petition and remonstrance process may be filed by the lesser of ... one hundred (100) owners of real property within the political subdivision" or "five percent (5%) of the owners of real property within the political subdivision." I.C. § 6-1.1-20-3.1(4). The carriers and signers of the petition forms (which are designed by the state board of accounts and sent to the county auditor) "must be owners of real property" and the carrier "must be a signatory on at least one (1) petition." I.C. § 6-1.1-20-3.1(5). The petition(s) must be filed with the county auditor not more than thirty days after the original notice was given. I.C. § 6-1.1-20-3.1(7). Thereafter, the county auditor must file a certificate and each petition with either the township trustee (if the political subdivision is a township) who shall then present the petition(s) to the township board, or (if the political subdivision is not a township) the body that has the authority to issue the bonds. This filing of the certificate must occur within fifteen business days of the filing of the petition requesting a petition and remonstrance process, and the certificate must state the number of petitioners who are owners of real property in the political subdivision. I.C. § 6-1.1-20-3.1(8)(A) and (B). If a sufficient petition requesting a petition and remonstrance process is not filed by owners of real property, the political subdivision may issue bonds or enter into a lease. I.C. § 6-1.1-20-3.1(8).
In the present case, owners of real property in the IPS school district timely filed the sufficient number of signatures pursuant to Section 3.1 to initiate a petition and remonstrance process. Where a sufficient "initiation" petition requesting a petition and remonstrance process has been filed, a political subdivision, such as IPS, may not impose property taxes to pay debt service or lease rentals without meeting the procedures set forth in I.C. § 6-1.1-20-3.2.
Pursuant to Section 3.2, the political subdivision must give notice by publication and first-class mail which includes a statement that owners of real property in the subdivision who want to either petition in favor of or remonstrate against the proposed debt must file the respective petitions or remonstrances not earlier than thirty days nor later than sixty days after the publication of the notice. I.C. § 6-1.1-20-3.2(1).
Section 3.2 then provides that:
"(2) Not earlier than thirty (30) days or later than sixty (60) days after the notice under subdivision (1) is given:
(A) petitions (described in subdivision (3)) in favor of the bonds or lease; and
(B) remonstrances (described in subdivision (3)) against the bonds or lease;
may be filed by an owner or owners of real property within the political subdivision. Each signature on a petition must be dated and the date of signature may not be before the date on which the petition and remonstrance forms may be issued under subdivision (3). A petition described in clause (A) or a remonstrance described in clause (B) must be verified in compliance with subdivision (4) before the petition or remonstrance is filed with the county auditor under subdivision (4)." (emphasis supplied).
Similar to the initiation process under Section 3.1, the county auditor must provide the petition or remonstrance forms (designed by the state board of accounts) to owners of real property who request such forms. I.C. § 6-1.1-20-3.2(3). The forms must come with instructions that explain certain requirements, which include that "the carrier and signers must be owners of real property." I.C. § 6-1.1-20-3.2(3)(A).
The petitions and remonstrances must then be verified and filed with the county auditor within the sixty-day period earlier mentioned. I.C. § 6-1.1-20-3.2(4). Within fifteen days, the auditor must then file a certificate and the petitions/remonstrances with the body of the political subdivision charged with issuing the bonds. I.C. § 6-1.1-20-3.2(5). The auditor may take an additional five days to review and certify the petitions/remonstrances for each additional five thousand signatures, up to a maximum of sixty days. Id. This certification "must state the number of petitioners and remonstrators that are owners of real property within the political subdivision." Id. (emphasis supplied).
If there are more owners of real property within the political subdivision who sign a remonstrance against the debt (or lease) than the number who signed a petition for the debt (or lease), the debt (or lease) may not be entered into. I.C. § 6-1.1-20-3.2(6). Further, the political subdivision may not make a preliminary determination to issue bonds or enter into a lease for the defeated project, or any other project that is not substantially different, within one year of the date of the auditor's certification. Id. "Withdrawal of a petition carries the same consequences as a defeat of the petition." Id.
In the present case, Jones limits his challenge to the requirement of ownership of real property to the petition/remonstrance contest in Section 3.2 and does not directly challenge the "initiation petition" process in Section 3.1. Jones lives within the IPS district and has two children who attend IPS schools. Although Jones is employed and pays local taxes, he does not own real property within the IPS district. Instead, Jones rents an apartment. Because Jones does not own real property within the IPS district, he is not permitted to participate in the petition/remonstrance process under Section 3.2.
On December 15, 2004, Jones filed a "Complaint for Declaratory and Injunctive Relief/Notice of Claim of Unconstitutionality of Indiana Statute" in the Marion Circuit Court. Jones also filed that day a Motion for Preliminary Injunction. The named defendant was Martha Womacks in her official capacity as Marion County Auditor. On December 22, 2004, the parties entered into and filed with the trial court a "Stipulation in Lieu of Preliminary Injunction," which reads in pertinent part as follows:
"Come now the parties, by their counsel, and stipulate and agree as follows:
1. Plaintiff has filed this action seeking, among other things, a preliminary injunction to allow him to sign either a remonstrance or petition in the on-going petition/remonstrance procedure in the Indianapolis Public School district.
2. His participation in this procedure is barred by Indiana Code § 6-1.1-20-3.2 which restricts participation to property owners only.
3. As plaintiff has indicated by his Affidavit, he is not a property owner but asserts an interest in the procedure.
4. In lieu of a preliminary injunction hearing and ruling, the parties agree that Bruce Jones shall be allowed to sign either a petition or remonstrance which shall then be sealed and filed with this Court at some time prior to the conclusion of the procedure on, or before, December 30, 2004.
5. The parties agree that the signed petition or remonstrance shall remain sealed. In the event that the on-going petition/remonstrance procedure ends in a tie, the parties request the Court to at that point conduct a preliminary injunction or other hearing to determine if Mr. Jones['s] signature should be counted.
6. The parties agree to notify the Court within ten (10) days after the...
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