Peterson v. Borst

• Citation: 786 N.E.2d 668
• Decision Date: 19 March 2003
• Docket Number: No. 49S02-0302CV71.,49S02-0302CV71.
• Parties: PETERSON, Bart, et al., Appellants, v. BORST, Philip C., Appellee, and Boyd, Rozelle, et al., Appellants, v. Sadler, Doris Anne, et al., Appellees.
• Court: Supreme Court of Indiana

786 N.E.2d 668

PETERSON, Bart, et al., Appellants, v. BORST, Philip C., Appellee, and Boyd, Rozelle, et al., Appellants, v. Sadler, Doris Anne, et al., Appellees.

No. 49S02-0302CV71.

Supreme Court of Indiana.

March 19, 2003.

William R. Groth, Geoffrey S. Lohman, A. Scott Chinn, Anthony W. Overholt April E. Sellers, Fred R. Biesecker, Michael A. Wukmer, Indianapolis, IN, for Appellants.

William Bock, III, Mark J. Colucci, Matthew T. Klein, Indianapolis, IN, for Appellee.

Edward W. Harris, III, Maggie L. Smith, Thomas F. O'Gara, Indianapolis, IN, for Amicus Curiae.

ON MOTION TO TRANSFER PURSUANT TO APPELLATE RULE 56(A)

PER CURIAM.

At issue in this appeal is the validity of the redistricting plan for the City-County Council of the City of Indianapolis and of Marion County, Indiana ("Council"), which was adopted in the final judgment of the Marion Superior Court, sitting en banc. We reverse because we conclude that the Superior Court's adoption of a plan that has been uniformly supported by one major political party and uniformly opposed by the other is incompatible with applicable principles of both the appearance and fact of judicial independence and neutrality. Because of the emergency nature of this appeal, we adopt a plan that we have drawn with the consideration of only factors required by applicable federal and State law, and without consideration of party affiliation or incumbency. This plan will be in effect for the May 6, 2003, primary election unless a different plan is adopted by ordinance prior to March 26, 2003.

Background and Applicable Statutes

In 1969, the Indiana General Assembly enacted what is commonly referred to as the "Unigov" Act,¹ which reorganized the municipal and county governments in counties containing a city of the first class, and which then and now applies only to Marion County and the City of Indianapolis. This legislation enabled consolidation of certain governmental functions, eliminating the overlapping jurisdictions of various county and municipal boards and departments. See Dortch v. Lugar, 255 Ind. 545, 550, 266 N.E.2d 25, 30 (1971) (upholding the constitutionality of the Unigov Act).

[T]he Act provides that the Mayor of the consolidated city shall be elected by all of the voters of the consolidated city and the county voting for such office. The Mayor is to be the chief executive and administrative officer of the consolidated city with the power to supervise the work of its departments, special taxing districts and special service districts. A twenty-nine (29) member City-County Council is also provided for which is to operate as the primary legislative body of the consolidated city and county. Its powers . . . include generally the power to adopt budgets, levy taxes, make appropriations and adopt resolutions or ordinances necessary to the exercise of such powers. Four (4) members of the Council are elected from the county-at-large with the remaining twenty-five (25) elected individually from single-member electoral districts as equal as practicable in population.

255 Ind. at 562, 266 N.E.2d at 36-37 (citations omitted).

Boundaries of the twenty-five single-member electoral districts are drawn after every federal decennial census according to the following "Redistricting Statute:"

(a) The city-county legislative body shall, by ordinance, divide the whole county into twenty-five (25) districts that:

(1) are compact, subject only to natural boundary lines (such as railroads, major highways, rivers, creeks, parks, and major industrial complexes);

(2) contain, as nearly as is possible, equal population; and

(3) do not cross precinct boundary lines.

This division shall be made in 1992 and every ten (10) years after that, and may also be made at any other time, subject to IC 3-11-1.5-32.

. . . .

(d) If the legislative body fails to make the division before the date prescribed by subsection (a) or the division is alleged to violate subsection (a) or other law, a taxpayer or registered voter of the county may petition the superior court of the county to hear and determine the matter. There may not be a change of venue from the court or from the county. The court sitting en banc may appoint a master to assist in its determination and may draw proper district boundaries if necessary. An appeal from the court's judgment must be taken within thirty (30) days, directly to the supreme court, in the same manner as appeals from other actions.

Ind.Code § 36-3-4-3 (1998) (emphasis added).

With inapplicable exceptions, ordinances enacted by the city-county legislative body (i.e., the Council) are subject to veto by the Mayor of Indianapolis under the following statute:

(a) Within ten (10) days after an ordinance or resolution is presented to him, the executive shall:

(1) approve the ordinance or resolution, by entering his approval on it, signing it, and sending the legislative body a message announcing his approval; or

(2) veto the ordinance or resolution, by returning it to the legislative body with a message announcing his veto and stating his reasons for the veto. . . .

. . . .

(c) Whenever an ordinance or resolution is vetoed by the executive, it is considered defeated unless the legislative body, at its first regular or special meeting after the ten (10) day period prescribed by subsection (a), passes the ordinance or resolution over his veto by a two-thirds ( 2/3) vote.

Ind.Code § 36-3-4-16 (1998) (emphasis added).

In 2002, the Council began the redistricting process pursuant to the Redistricting Statute. Among the plans considered were the "Borst Plan" proposed by Phillip C. Borst ("Councillor Borst"), Republican leader of the Council, and the "Boyd Plan" proposed by Rozelle Boyd ("Councillor Boyd"), the Democratic leader of the Council. On October 7, 2002, the Council passed an ordinance approving the Borst Plan. The vote was 15 to 14, with all Republican members voting in favor of the plan and all Democrats voting against it. On October 19, 2002, Indianapolis Mayor Bart Peterson, a Democrat, vetoed the ordinance, asserting among other things that the Borst Plan violated the requirement of I.C. § 36-3-4-3(a) that the Council districts be compact.

The Council did not attempt to override Mayor Peterson's veto. Instead, on October 25, 2002, Councillor Borst, in his individual capacity and as Vice President of the Council, filed a "Petition for Determination by the Marion Superior Court En Banc," requesting that the Marion Superior Court declare that the Borst Plan was valid under I.C. § 36-3-4-3 and order that it be implemented in the upcoming municipal elections scheduled for May 6, 2003. Mayor Peterson intervened in this action.

On November 8, 2002, Councillor Boyd and others (together "Councillor Boyd") filed "Complaint for Declaratory and Injunctive Relief and Petition to Redistrict," naming various members of the Marion County Election Board as defendants. Councillor Boyd asked, among other things, that a master be appointed to assist the Superior Court in drawing new district boundary lines. Mayor Peterson also intervened in this action. The Superior Court consolidated the two actions,² conducted a trial on February 6, 2003, and issued its decision on February 14, 2003.

The Superior Court is composed of 32 judges, of whom 17 are Republicans and 15 are Democrats.³ Sixteen judges—all Republican—voted in favor of approving the Borst Plan. Thirteen judges—all Democrats—voted against this result. Three judges did not participate in the decision.

On February 14, 2003, Councillor Boyd and Mayor Peterson filed a notice of appeal. On February 20, 2003, this Court accepted jurisdiction over the appeal pursuant to Appellate Rule 56(A) and directed an expedited appellate process. The City of Fort Wayne was granted amicus curiae status. With the cooperation of the parties and the Superior Court, the record on appeal was submitted to the Court, the matter has been fully briefed, and oral argument was conducted March 6, 2003.

The demands of the election calendar have imposed special problems in hearing this appeal. The filing period for seeking an election to the Council had nearly expired when the case was brought to this Court. We directed that filing should remain open until further order. As noted above, we required that the case be briefed and argued in a matter of days. Our own decision-making has been treated as a matter of urgency, in which we have dispensed with certain customs. Once it became apparent that there was not a majority to affirm the Superior Court's judgment, we have concentrated on fashioning the remedy. As is sometimes the case in appellate courts, today's per curiam does not necessarily reflect the initial position of each of the members. In light of the press of time, we have joined in today's decision without taking the time required to iron out or explicate those differences.

The dispositive issue raised by Councillor Boyd and Mayor Peterson in this appeal is whether the Superior Court violated its duty of neutrality by adopting a redistricting plan developed by one political party. Councillor Boyd and Mayor Peterson request this Court to reverse the judgment of the Superior Court and to appoint a special master to assist this Court in drawing proper district boundaries. Councillor Borst urges this Court to affirm the Superior Court's decision, contending that the proceedings before the Superior Court were fundamentally fair, that the Superior Court's judgment is supported by the evidence, and that its decision is entitled to substantial deference.

The Judiciary's Duty of Independence and Neutrality

This is the first time that the Redistricting Statute has ever been invoked, and none of the parties have called to our attention, and we are not aware of, any Indiana state court decisions resolving partisan redistricting disputes.Thus, we write on a clean slate as to the duties and obligations of the Indiana judiciary in such...