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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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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

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  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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