State ex rel. Sekerez v. Lake Superior Court, Room 4, 275S50

• Decision Date: 16 October 1975
• Docket Number: No. 275S50,275S50
• Citation: 263 Ind. 601,335 N.E.2d 199
• Parties: STATE of Indiana on the relation of Zarko SEKEREZ, Relator, v. LAKE SUPERIOR COURT, ROOM 4, and James T. Moody, as Judge thereof, Respondents.
• Court: Indiana Supreme Court

Page 199

335 N.E.2d 199

263 Ind. 601

STATE of Indiana on the relation of Zarko SEKEREZ, Relator, v. LAKE SUPERIOR COURT, ROOM 4, and James T. Moody, as Judge thereof, Respondents.

No. 275S50.

Supreme Court of Indiana.

Oct. 16, 1975.

Zarko Sekerez, pro se.

Jackie L. Shropshire, Gary, Kenneth D. Reed, Hammond, for respondents.

HUNTER, ^* Justice.

The General Assembly has granted the citizens of Indiana standing either as citizens or taxpayers of municipal Corporations ¹ to challenge:

'. . . the validity, location, wisdom, feasibility, extent or character of construction financing or leasing of any public improvement by any municipal corporation * * * including but not limited to suits for declaratory judgments or injunctions to declare invalid or to enjoin such construction, financing or leasing . . ..' ²

The legislative intent in permitting any citizen of a local community to test the need for and the extent of proposed improvements is founded on the singular hope that such actions will bring to light--prior to construction--any facts which would render the project unnecessary or improper. The desirability of discovering such problems prior to construction lies in the power of the court to enjoin or order appropriate modification of the proposed plans, thereby preventing the squandering away of the community's limited fiscal resources. It fillows that a citizen who brings a public lawsuit does so on behalf of all fellow citizens, ³ for it is to their benefit which any judgment shall accrue. Thus, the Public Lawsuit Statute does not provide a new vehicle for disgruntled bidders, Gariup v. Stern (1970) 254 Ind. 563, 261 N.E.2d 578, or landowners seeking to vindicate their own property interests, City of Elkhart v. Curtis Realty Co. (1970), 253 Ind. 619, 256 N.E.2d 384. In short, the act which authorizes public lawsuits '. . . shall not be construed to broaden any right of action as is now validly limited by applicable law.' ⁴

The grant of standing to one who has no legal injury in fact is not without its downside risks. The General Assembly was aware that Machiavelians--who would use the public lawsuit machinery to serve these ends while purportedly suing on behalf of their fellow citizens--live in Utopian communities. The General Assembly was also aware that those with pure hearts but empty heads might bring such lawsuits, although not in the public interest. To protect the citizens of the community against these hazards, the legislature provided:

'At any time prior to the final hearing in a public lawsuit, the defendant may petition for an order of the court that the cause be dismissed unless the plaintiff shall post a bond with surety to be approved by the court payable to defendant for the payment of all damages and costs which may accrue by reason of the filing of the lawsuit in the event the defendant prevails. A hearing shall be had on such petition in the same manner as the hearing on temporary injunctions under IC 1971, 34--1 (formerly Acts 1881 (Spec.Sess.), ch. 38). If at the hearing the court determines that the plaintiff cannot establish facts which would entitle him to a temporary injunction, the court shall set the amount of bond to be filed by the plaintiff in an amount found by the judge to cover all damage and costs which may accrue to the defendants by reason of the pendency of the public lawsuit in the event the defendant prevails. In the event such bond is not filed by the plaintiff with sureties approved by the court within ten (10) days after such order is entered the suit shall be dismissed. Either plaintiff or defendant may appeal such order to the Indiana Supreme Court within such ten (10) day period by notice of appeal and a statement of error in the same manner as is provided in a petition for mandate or prohibition. The Supreme Court may stay the lower court order pending its own decision, may set a bond to be filed by the plaintiff in connection therewith, may modify the order of the lower court, or may enter its order as a final order in a case. In the event no bond is filed as provided in this section, the public lawsuit shall be dismissed and no court shall have further jurisdiction of the public lawsuit or any other public lawsuit involving any issue which was or could have been raised therein. Provided, That nothing in this section is intended to create nor shall it be construed as creating, any additional cause of action on the part of any municipal corporation, person, partnership, or corporation, unless the defendant is required to and does post bond.' (Emphasis added.) ⁵

This protection was invoked against the first two lawsuits commenced by citizen Sekerez. A hearing was held and it was determined that a bond was required to protect the public's interest pendente lite. Such decision was subsequently affirmed. Sekerez v. Bd. of San. Comm'rs. (1974), Ind.App., 309 N.E.2d 460. When the bond was not filed, the suits were dismissed, as required by the statute. Sekerez v. Bd. of San. Comm'rs., supra.

When relator instituted his third action, several avenues were open to the Board. First the Board might have asserted the defense of res judicata before the Lake Circuit Court, based upon the Court of Appeals' decision, supra, and relying upon that portion of IC 1971, 34--4--17--5, Ind.Ann.Stat. § 3--3305 (Burns Code Ed.) which provides, 'In the event no bond is filed as provided in this section, the public lawsuit shall be dismissed and no court shall have further jurisdiction of the public lawsuit or any other public lawsuit involving any issue which was or could have been raised therein.' (Emphasis added.) Secondly, the Board might have petitioned the Court of Appeals for a writ of prohibition restraining the Lake Circuit Court from exercising jurisdiction in disregard of the Court of Appeals' opinion and order affirming the dismissal of appellant's public lawsuits, based upon the inherent powers of an appellate tribunal to see that its orders are effectuated. See Indiana Rules of Appellate Procedure, Appellate Rule 15(M)(6); see, also, Union Trust Co. v. Curtis (1917), 186 Ind. 516, 116 N.E. 916. Instead, the Board sought and was granted dismissal of relator's third suit under IC 1971, 19--2--14--10, Ind.Ann.Stat. § 48--4208 (Burns 1963 Repl.), a statute which provides remonstrators the right of review of actions of sanitary boards before the superior court of the county, and concludes that the '. . . judgment of said court shall be final and conclusive upon all persons whomsoever, and no appeal shall lie from the judgment of said court.'

When relator indicated that he would in fact appeal such dismissal, and would institute additional suits, the beleaguered Board invoked the equitable powers of the superior court, to halt the legal treadmill on which the Board was being recycled. It is true that this Court will not ordinarily tolerate an injunction of proceedings in one court by another court of coordinate jurisdiction. Such a rule is founded upon the valid policy basis of preventing unseemly conflicts and an equally valid interest in promoting orderly settlement of disputes. State ex rel. Miller v. Sup. Ct. (1965), 246 Ind. 698, 210 N.E.2d 662. The injunction here, however, is not against any court. It runs against an individual who desires to go into court for the purposes of harassment. If an individual disregards an injunction, action is not taken against the court, but rather against the individual. Technically, then, there is no conflict or encroachment of one court upon the jurisdiction of another court.

Assuming arguendo that the net effect of such an injunction is to end the power of the second court to hear the suit before it by requiring the litigant to dismiss the action, we do not find the result to be an affront to the jurisdictional integrity of a sister court. On rare occasions a court may exercise its equitable powers to prevent vexations, oppressive and ruinous litigation. See 42 Am.Jur.2d § 206 and cases cited therein. According to this annotation, the basis for the exercise of the equitable powers of the court is that '. . . the litigation is for the purpose of harassing, annoying and vexing an opponent, and that the jurisdiction of the court is invoked by the numerous proceedings, not for the attainment of justice but rather to further or satisfy individual malice toward another.' In his verified return respondent states, 'The evidence showed, and the court found, malice on the part of defendant- petitioner.' (Verified Return, p. 2.) Under these circumstances, an injunction was entirely proper.

Relief similar to that granted by the trial court herein was denied by the trial court in the case of Haines v. Trueblood (1917), 67 Ind.App. 456, 119 N.E. 383. On appeal, such denial was held to be erroneous. Trueblood petitioned for the establishment of a drainage ditch. Under the applicable statute, the petition would be dismissed if more than two-thirds of the affected landowners filed written remonstrances. The required number of landowners remonstrated and the petition was dismissed. Trueblood refiled his petition, and once again remonstrances were gathered and filed. Whenever a petition was dismissed a new one was filed. Faced with this dilemma, remonstrators petitioned for injunctive relief. In holding that the relief should have been granted, the Appellate Court per Caldwell, J., stated:

'Under the allegations of the complaint the requisite number of qualified landowners are opposed to the drainage improvement. They have repeatedly demonstrated their opposition in the statutory manner. They stand ready to continue to do so, if need be. They have thereby established, and are ready to continue to establish, that the right does not exist in appellees to have the petition here referred. To do so, however, requires in each case much labor and the expenditure of large amounts of money. But appellees declare that they will create in...