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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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