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COA: Suit against sewer district isn’t a public lawsuit

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The Spencer Circuit Court erred in finding a lawsuit filed by property owners challenging the requirement they connect to a new sewer system is a public lawsuit and the property owners must pay $9 million in bond to proceed with the suit, the Indiana Court of Appeals ruled Tuesday.

In Steven Buse, et al. v. Trustees of the Luce Township Regional Sewer District, No. 74A05-1009-PL-590, Steven Buse and other property owners brought an interlocutory appeal of the trial court’s holding that four counts of the owners’ complaint constitute a public lawsuit against Luce Township Regional Sewer District under Indiana Code 34-6-2-124. The property owners filed the suit, claiming the sewer district was installing a new sewer near their properties and required the property owners to tie into the line at their own expense. The property owners all had functioning septic tank soil absorption systems. The property owners also alleged that they would have to pay more than the homeowners who did grant the sewer system easements over their property.

The trial court relied on I.C. 34-6-2-124 to find the lawsuit was a public lawsuit and ordered the property owners post a $9 million in bond within 10 days of the order.

But the trial court didn’t determine whether the property owners were pursuing the lawsuit as citizens or as taxpayers. This is an important distinction that needs to be made by the court, as spelled out by the Indiana Supreme Court in Dible v. City of Lafayette, 713 N.E.2d 269 (Ind. 1999). The justices held that an action by an individual landowner seeking to protect his or her private interest in property doesn’t constitute the basis for a public lawsuit.

The plain language of the complaint shows that the property owners didn’t bring the suit in their capacity as taxpayers, wrote Judge Edward Najam, so the trial court’s findings don’t support its conclusions that the complaint is a public lawsuit.

“We also hold that the trial court’s order that the Property Owners’ claims are within the ambit of the public lawsuit statute misapplies the statute,” he wrote. “… the trial court focused only on the language of the statute. But, as summarized in Dible, the controlling factor is whether the Property Owners seek to protect public or private interests.”

The appellate judges also rejected the sewer district’s claim that the private interests of the property owners are so commingled with the public interests that the public lawsuit aspect of the counts should trump the private interests. The convergence of private interests with public interests isn’t enough in itself to convert an action that doesn’t otherwise qualify into a public lawsuit, wrote Judge Najam.

The COA reversed and remanded for further proceedings on the claims, noting that nothing in the opinion shall be taken as comment on the merit of those claims.

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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