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Commission OK to rule on territory dispute

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The Indiana Court of Appeals affirmed an order by the Indiana Utility Regulatory Commission, finding the commission had the authority to hear a dispute between a town and a water company.

At issue in Town of Chandler, Indiana v. Indiana-American Water Co., and Town of Newburgh, Indiana, No. 93A02-0801-EX-00005, is Indiana Code Section 8-1-2-86.5, which defines when the commission may determine a territorial dispute within a 4-mile area regarding water utilities.

The town of Chandler owns and operates a water utility for the delivery of water within and around the corporate limits of the town. The town adopted an ordinance that stated it would be the only provider of water within the 4-mile area surrounding the town. Indiana-American Water Co. filed a complaint with the regulatory commission, requesting that it determine the unincorporated areas in the 4-mile area surrounding the town were open competition for water customers.

There was also a dispute involving the town of Newburgh, because it passed a similar ordinance and some of its 4-mile area overlapped with the surrounding Chandler area.

The commission issued an order denying Chandler's second motion to dismiss the complaint and granted Indiana-American's requested relief and ruled that Indiana-American could provide water service to a prospective customer within the 4-mile area, regardless of Chandler's ordinance.

The Court of Appeals examined the construction of I.C. Section 8-1-2-86.5 to determine whether the commission had the authority to determine a territorial dispute. Chandler argued that the commission can't determine a territorial dispute because the statute only applies to the municipalities that meet the conditions of subsections (c)(1) and (c)(2), and since Newburgh doesn't meet those conditions, the commission can't settle the dispute.

The Court of Appeals disagreed with Chandler's arguments, finding the plain reading of the statute leads the court to conclude the exception to the exception, which allows the commission to determine disputes between two municipalities located within the same 4-mile area, applies whenever the territorial dispute concerns an area located within more than one 4-mile area of any municipality, wrote Judge Paul Mathias.

The appellate court also found the commission's treatment of Chandler didn't violate Article I, Section 23 of the Indiana Constitution because a municipal corporation isn't a citizen of Indiana and the section is inapplicable to its case.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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