Worman Enterprises v. BOONE COUNTY SOLID WASTE MGT., 06S01-0306-CV-254.

• Decision Date: 09 March 2004
• Docket Number: No. 06S01-0306-CV-254.,06S01-0306-CV-254.
• Citation: 805 N.E.2d 369
• Parties: WORMAN ENTERPRISES, INC., Appellant (Plaintiff below), v. The BOONE COUNTY SOLID WASTE MANAGEMENT DISTRICT, Appellee (Defendant below).
• Court: Indiana Supreme Court

805 N.E.2d 369

WORMAN ENTERPRISES, INC., Appellant (Plaintiff below), v. The BOONE COUNTY SOLID WASTE MANAGEMENT DISTRICT, Appellee (Defendant below).

No. 06S01-0306-CV-254.

Supreme Court of Indiana.

March 9, 2004.

Mark R. Waterfill, Cynthia M. Kirk, Indianapolis, IN, Attorneys for Appellant.

Larry J. Kane, Katherine L. Shelby, Indianapolis, IN, Attorneys for Appellee. On Petition To Transfer from the Indiana Court of Appeals, No. 06A01-0206-CV-202

BOEHM, Justice.

We hold that the board of a solid waste management district is not subject to the strict prohibition on ex parte communications that applies to a court or an administrative agency acting in a purely adjudicatory role.

Factual and Procedural Background

The Boone County Solid Waste Management District (District) was created pursuant to Indiana Code Article 13-21. That Article authorizes the District, inter alia, (1) "to develop and implement a district solid waste management plan"; (2) "to otherwise do all things necessary for the reduction, management, and disposal of solid waste; and recovery of waste products from the solid waste stream"; and (3) "to adopt resolutions that have the force of law." Ind.Code § 13-21-3-12 (2002). Worman's facility processes trees, brush, leaves, grass, and dirt and sells the resultant mulch. Worman also processes concrete and bricks and sells the resultant stone.

At some point before September 1998 the District sued Worman, claiming that Worman's facility was an illegal and unpermitted site. In that month, the District adopted Resolution 98-3, prescribing "certain requirements for the permitting and operation of solid waste facilities and clean fill sites within the Boone County Solid Waste Management District." Worman and the District then settled the lawsuit on October 6, 1998. The parties agreed, among other things, that Worman would submit a permit application for a Long-Term Clean Fill Processing and Recycling Facility. The lawsuit was to be dismissed only when the permit issued to Worman contained terms mutually acceptable to Worman and the District. On July 28, 1999, Worman submitted its application. The Board received comments on the application at its July and September public meetings. Outside of the public hearings, Board members viewed the site and engaged in conversations with citizens who were interested in Worman's permit.

After its October 11, 2000, meeting, the Board issued Worman a Long-Term Clean Fill and Recycling Permit. Worman then returned to court arguing that the District did not have the authority to issue the permit and that the permitting process was unlawful because of ex parte communications between the Board and private citizens. Worman also contended that even if the permitting process was lawful, certain conditions imposed by the permit were illegal. The District successfully moved for summary judgment. On appeal, the Court of Appeals held that the District, as a matter of law, has the authority to regulate Worman's facility, but that genuine issues of material fact existed concerning the propriety of ex parte communications during the permit process. Accordingly, summary judgment was inappropriate. This Court granted transfer.

"The standard of review of a grant or denial of a motion for summary judgment is the same as that used in the trial court: summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party." Corr v. Am. Family Ins., 767 N.E.2d 535, 537-38 (Ind.2002) (citing Bemenderfer v. Williams, 745 N.E.2d 212, 215 (Ind.2001)).

I. The District's Authority over Solid Waste

Worman argues that because the conduct regulated in the permit is regulated by the Indiana Department of Environmental Management (IDEM), the District's power to regulate Worman's facility is preempted. Ind.Code § 36-1-3-8(a)(7) (1998). The Home Rule Act significantly expanded the powers of "units" of local government, but expressly prohibited regulation by local agencies of conduct already regulated by a state agency. Id. Worman points out that the Indiana Department of Environmental Management regulates solid and hazardous waste in Indiana pursuant to Indiana Code section 13-19-3-1. Worman argues that IDEM "routinely inspects Worman's facility," so the Home Rule Act bars regulation by the District because IDEM regulates Worman's facility. The Court of Appeals held that the Home Rule Act's prohibitions do not apply to the District because the District is not a governmental "unit" to which the Home Rule Act applies. I.C. § 36-1-3-1. As the Court of Appeals noted, a "unit" is defined in the Home Rule Act as a "county, municipality, or township." I.C. § 36-1-2-23. Though the District is none of these, Worman argues that because the members of the Board are executive officials of Boone County, as required by statute, I.C. § 13-21-3-6(a), the District is an arm of the County and is therefore a "unit" of local government.

We conclude that the Home Rule Act does not prohibit solid waste management districts from regulating solid waste. The districts are not technically "units" as the Home Rule Act uses that term. Not all solid waste management districts are coterminous with a county. The statute governing solid waste management districts permits counties to join to form a single solid waste management district. I.C. § 13-21-3-1. If a county chooses to "designate itself as a county solid waste management district" or if the county fails to join or designate itself, the county will be designated by the IDEM commissioner as a county solid waste management district. Id. The Boone County Solid Waste Management District was established for Boone County either by designation or by default. Further, the statute expressly grants solid waste management districts specific powers that counties already possess, such as the power to adopt resolutions with the force of law and the power to sue and be sued. I.C. § 13-21-3-12. If the District were the same as the county, these grants of power would be surplusage. The District's Board includes executive officials of municipalities within the District as well as executives of county government. I.C. § 13-21-3-5(a). Thus, although the District is coterminous with Boone County, and in that sense the County itself is designated as the District, the District's governance is not the same as the County's.

Perhaps more importantly, even if the District is viewed as the County and therefore a "unit," the specific grant of authority in the Solid Waste Management District Act governs over the general terms of the Home Rule Act. Ind. Dep't Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004). The statute creating and governing Districts specifically grants authority to regulate solid waste, I.C. § 13-21-3-12, and calls for the districts to collaborate with IDEM to deal with solid waste issues. See I.C. § 13-21-5-1 ("Each district shall adopt and submit to the [IDEM] commissioner for approval a district solid waste management plan."). If the Home Rule Act precluded solid waste management districts from regulating this conduct because IDEM regulates the conduct, then there would be no purpose to solid waste management districts at all. In sum, the District is not precluded by the Home Rule Act because it is separate in organization and power from Boone County and enjoys express authority to regulate solid waste.¹

II. Ex Parte Communications

On several occasions while Worman's permit was pending, members of the Board communicated with public citizens about the permit. For example, one member of the Board spoke with citizens who called her home with specific complaints about Worman's facility. Citizens also approached that member at the post office and grocery store to discuss the Worman facility. Another member viewed the site through binoculars from a neighbor's home. Worman argues that these communications between members of the Board and private citizens regarding its permit application constituted impermissible ex parte communications that prejudiced the Board against Worman's application and violated Worman's due process rights. The trial court disagreed and granted the District's motion for summary judgment. The Court of Appeals reversed, concluding that the Board's action was adjudicatory in nature and that there was a genuine issue of material fact whether the Board made these communications with the public known and whether those communications influenced the permitting process.

Black's Law Dictionary defines ex parte communications as "a generally prohibited communication between counsel and the court when opposing counsel is not present." Black's Law Dictionary 597 (7th ed.1999). As this definition suggests, ex parte communications most often become an issue if a judge communicates outside the courtroom without disclosing those communications to everyone involved. These communications are prohibited. See Ind. Judicial Conduct Canon 3(B)(8); see, e.g., In re Kern, 774 N.E.2d 878, 879 (Ind.2002)

(judge participated in improper ex parte communications when he communicated with and aided a father in a custody dispute without the knowledge of the mother); Garrard v. Stone, 624 N.E.2d 68, 70 (Ind.Ct.App.1993) (even testimony by a family therapist could not cure the error when a trial judge initiated communication with the therapist without informing either party). Due process may be denied if the parties are not given the opportunity to hear and comment on all of the evidence considered in their case. See Majors v. State, 773 N.E.2d 231, 234 (Ind. 2002). For the same reason, reliance on ex parte communications is not allowed in administrative hearings of an adjudicatory nature. State Bd. of Tax Comm'rs v. Oliverius, 156 Ind.App. 46, 54, ...