ILNews

Court rules in favor of municipal utilities

Michael W. Hoskins
January 1, 2007
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The state's eminent domain statute allows Indiana municipalities to acquire operations of privately owned water and sewer utilities that serve recently annexed portions of that community, the Indiana Supreme Court ruled today.

The split 3-2 decision came in Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, Indiana, 02S04-0706-CV-248.

This case from Allen Circuit Judge Thomas Felts involves Fort Wayne's initiation of condemnation proceedings against a company operating a competing public water utility in and around the city, which also owns its own water and sewer utility. The trial court granted the city's motion for relief and denied Utility Center's, though the Court of Appeals reversed and remanded in 2005.

However, the justices decided to grant transfer and have now affirmed the trial court's judgment with respect to its decision in granting summary judgment in favor of the city.

In its opinion, the court dissects specific portions of Indiana's eminent domain statute applying to utilities, weaving through history of the law and how it's organized.

Justice Frank Sullivan authored the opinion, and Justices Ted Boehm and Brent Dickson dissented. Chief Justice Randall T. Shepard concurred with a separate, two-page opinion that shows the divided court almost could have gone the other way.

"The complicated order of events in this case and the way in which the litigants have positioned themselves makes the task of statutory interpretation more difficult than usual," the chief justice wrote. "There are grounds on which I anticipated that Utility Center might prevail, but those grounds turn out not to have been part of how the situation or the litigation evolved."

Justice Boehm wrote the dissent with Justice Dickson concurring. The two justices believed the lower appellate judges ruled correctly and would have denied transfer.

"Distressed utilities would seem to be the best candidates to be acquired by a governmental entity to assure stable service," Justice Boehm wrote. "On its face, it is odd that the legislature would choose to prevent governmental acquisition of this perhaps imaginary class distressed utilities but permit it as to healthy ones."

Ten water and utility companies were amici curiae parties on this case, including Indiana-American Water Co. and Indiana Association of Sewer Companies.
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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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