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COA: Case for relief against INDOT may continue

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The Indiana Court of Appeals allowed a local government entity to continue seeking relief against the Indiana Department of Transportation Friday, holding that the local unit of government had standing to seek both injunctive and declaratory relief.

When the Indiana Department of Transportation performed construction and repair work on State Highway 27 in Union County in 2010 and 2011, it allegedly damaged septic systems on the properties of three private landowners as a result of improper or negligent work, which “may (have impacted) other properties and may (have implicated) a broader public health and safety concern … .” The county board of commissioners asked INDOT to investigate and remedy the damage, but INDOT failed to do so.

The commissioners filed for declaratory judgment and injunctive relief against INDOT and Brandye Hendrickson in her official capacity of INDOT commissioner in July 2015. The motion sought an order declaring that State Highway 27 and any associated storm drain was the responsibility of INDOT and not the county and compelling INDOT to immediately remedy any negligent work that caused septic or public health issues.

INDOT moved to dismiss, arguing that the county lacked standing. The commissioners responded with an affidavit from Ron Parker, the county sanitarian, who stated “the highway repair has resulted in raw sewage flowing outside appropriate septic and drainage systems.”

The Union Circuit Court granted INDOT’s motion to dismiss on the basis of a lack of standing, but did not indicate whether Parker’s affidavit was considered. The county moved to correct error, and INDOT requested that Parker’s affidavit be stricken and the motion to correct error be denied. The trial court denied the motion to correct error but did not expressly rule on the motion to strike.

In the Indiana Court of Appeals’ reversal, Judge Michael Barnes first wrote that the panel had determined that the appeal should be reviewed as a Trial Rule 12(B)(6) dismissal, not a Trial Rule 56 dismissal, because the trial court erred when it did not make clear whether it was considering Parker’s affidavit. Thus, because the review proceeded as a 12(B)(6) dismissal, the appellate panel disregarded Parker’s affidavit. Barnes wrote that on remand, either party could file for summary judgment under Trial Rule 56.

In regard to the county’s motion for declaratory judgment, Barnes wrote that the commissioners were entitled to seek declaratory relief. The appellate court found that because INDOT is required to designate which roads constitute the state highway system and also to maintain maps of the highway system, “it should be possible to determine and issue a declaration as to who bears responsibility for State Highway 27 and its drainage system.”

Further, Barnes wrote that the county commissioners had standing to seek injunctive relief, even though the board did not suffer a direct injury as a result of INDOT’s actions, because the public standing doctrine allows actions against governmental activities even if the plaintiff does not have a special interest in the outcome of litigation different from that of the general public.

The panel also found that the commissioners had standing under the associational standing doctrine, which holds that an “association” – here, the county – can sue on behalf of its members if the members would individually have standing to sue yet would not be required to participate in the association’s suit, and if the interests the suit seeks to protect are relevant to the organization’s purpose.

The case is The Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Indiana Department of Transportation, and the State of Indiana, 81A01-1603-Pl-696.
 

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  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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