Kole v. Faultless
| Decision Date | 15 March 2012 |
| Docket Number | No. 94S00–1112–CQ–692.,94S00–1112–CQ–692. |
| Citation | 963 N.E.2d 493 |
| Parties | Michael R. KOLE, Joseph L. Weingarten, and Glenn J. Brown, individually and On Behalf of all Others Similarly Situated, Plaintiffs, v. Scott FAULTLESS, Daniel Henke, Eileen Pritchard, Stuart Easley, David George, Arthur Levine, individually and in their official capacity as the Town Council of Fishers, Indiana, and Fall Creek Township, Defendants. |
| Court | Indiana Supreme Court |
963 N.E.2d 493
Michael R. KOLE, Joseph L. Weingarten, and Glenn J. Brown, individually and On Behalf of all Others Similarly Situated, Plaintiffs,
v.
Scott FAULTLESS, Daniel Henke, Eileen Pritchard, Stuart Easley, David George, Arthur Levine, individually and in their official capacity as the Town Council of Fishers, Indiana, and Fall Creek Township, Defendants.
No. 94S00–1112–CQ–692.
Supreme Court of Indiana.
March 15, 2012.
[963 N.E.2d 494]
Steven W. Griesemer, Gary P. Price, Joseph P. Rompala, Indianapolis, IN, Attorneys for Plaintiffs.
Mark J. Crandley, Indianapolis, IN, Attorney for Defendants.
SHEPARD, Chief Justice.In 2006, the Indiana General Assembly liberalized the framework within which local governments may reorganize themselves. It is clear that this new framework substantially reduces the barriers to rearranging local units. This case asks to what extent earlier statutes continue to limit the resulting forms that reorganizing local governments may take.
In particular, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana has asked us the following question, certified under Indiana Appellate Rule 64(B):
Whether a political unit may reorganize into a city under Ind.Code art. 36–1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Ind.Code § 36–4–5–2 and Ind.Code § 36–4–6–3(i), including reorganization as a city with (1) a council elected entirely at large; and (2) a mayor appointed by that council.
We have accepted this question and now hold that Article 1.5 of Title 36 does allow a political subdivision to do so.1
Over 76,000 people reside in the Town of Fishers, making it the largest town in Indiana—more than twice as large as the next largest town—and the eighth largest municipality overall.
The present structure of the Town of Fishers adheres to the standard arrangement for towns as set out in Article 5 of Title 36 of the Indiana Code. Citizens of the Town elect a Town Council at large. The Town Council, in turn, selects a Town Board President from among its own members.
On May 3, 2010, some 1700 citizens of the Town of Fishers—the Plaintiffs among them—filed a petition with the Fishers Town Clerk seeking a referendum on whether the Town should convert itself from a town into a second class city. Under the standard structure for second class cities as set out in Article 4 of Title 36, citizens directly elect a city mayor for the city, plus six city council members from legislative districts and three more at large.
On May 5, 2010, two days after receiving the petition, the Fishers Town Council passed a resolution proposing a reorganization with Fall Creek Township. The resolution called for a commission to study the possibility of merging the two entities into a reorganized city. The authority for such a merger is the Government Modernization Act, a recently enacted statute that appears as Article 1.5 of Title 36.
As proceedings on the Town Council's proposal moved forward, the Plaintiffs' petition
[963 N.E.2d 495]
did not. The Plaintiffs filed suit in Hamilton Superior Court on September 30, 2010, seeking to compel the Fishers Town Council to schedule their petition for a referendum. They voluntarily dismissed that suit and refilled in U.S. District Court on December 30, 2010.
While the litigation continued, the commission studying the Fishers/Fall Creek merger approved the reorganization plan on November 11, 2010. In its final form, the reorganization plan proposed reorganizing the Town of Fishers and Fall Creek Township along the following lines:
(1) The Town of Fishers and the Township would merge into a single political subdivision;
(2) The new political subdivision, called the City of Fishers, would become a “nontraditional” second class city that combined attributes of a second class city and a town;
(3) The citizens of Fishers would elect a nine-member City Council at large;
(4) The City Council would appoint a City Mayor to a four-year term by a majority vote;
(5) The City Mayor would not have the power to veto ordinances passed by the City Council;
(6) The City Council would approve a City Manager recommended by the City Mayor by a majority vote;
(7) The existing Town Council Members and the Township trustee would remain in office as part of the new City Council until municipal elections in 2015.
(Joint App. at 38; Joint Add. at 5–10.)
On December 20, 2010, the Fishers Town Council and the Township held a public meeting during which both entities adopted the final reorganization plan. A referendum on the reorganization plan will occur in the November 2012 general election.
On February 21, 2011, the Town Council passed a resolution acknowledging the Plaintiffs' petition to incorporate the Town of Fishers into a second class city. The resolution further ordered a referendum on that proposal in the next general election, the same election in which residents would vote on the reorganization plan.
Back in federal court, the Defendants moved to dismiss the Plaintiffs' complaint, arguing that it failed to present a federal question, thereby depriving the District Court of subject matter jurisdiction. The court denied the Defendants' motion to dismiss but otherwise abstained from acting so a state court would have a chance to address a novel question of state law that might allow the District Court to avoid needlessly addressing a constitutional question. The Plaintiffs moved to reopen the case and further moved to certify that question to this Court.2
Like many other states, Indiana historically adhered to the Dillon Rule that a municipal corporation could exercise only the following powers:
First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable.
Tippecanoe Cnty. v. Ind. Mfr.'s Ass'n, 784 N.E.2d 463, 465 (Ind.2003) (citing Dillon,
[963 N.E.2d 496]
Municipal Corporations (1st ed. 1872) (emphasis in original))....
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