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Indianapolis prevails in US high court on sewer tax case; residents, attorneys stung

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Thirty-one Indianapolis property owners who paid as much as 30 times more than their neighbors for sewer service got resolution from the U.S. Supreme Court in their lawsuit against the city. They lost.

“It hurts,” said Christine Armour, who by virtue of the alphabet is the first and namesake plaintiff in Armour v. City of Indianapolis, No. 11-161. “It’s a total injustice. I just can’t see how they could make a judgment like that.”

The judgment was the U.S. Supreme Court’s 6-3 ruling in favor of Indianapolis, a ruling that upheld a divided Indiana Supreme Court.
 

il-waicukauski04-15col.jpg Attorney Ronald Waicukauski sits behind some of the files from an equal protection tax case that he represented. The case was decided June 4 by the U.S. Supreme Court. (IL Photo/ Perry Reichanadter)

The plaintiffs each paid the full $9,278 to have sewers installed in the Brisbane/Manning neighborhood in northwest Indianapolis. The city used Indiana’s Barrett Law to finance the sewer hookups, apportioning the cost equally among property owners, who could pay in full or in installments.

The suit arose when Indianapolis stopped using Barrett Law and forgave future payments. Those who paid in full wanted refunds; the city refused. Some property owners whose debt was forgiven had paid little more than $300.

Ronald J. Waicukauski, an attorney with Price Waicukauski & Riley in Indianapolis, sued the city on the property owners’ behalf under the federal Equal Protection Clause. He litigated the case until Washington, D.C., attorney Mark Stancil argued before the U.S. Supreme Court.

“I continue to believe that what the city did here was incredibly unfair and was bad public policy for the city, and I also believe that what the Supreme Court has done in refusing to overturn this incredibly unfair decision reflects in a negative way on the opportunity the courts have and will have in the future to correct injustices like this,” Waicukauski said.

But attorneys for the city said the court decided correctly on equal protection and giving deference to governmental lawmaking powers.

Finding for the city

The ruling represented an unusual coalition. Conservative Justice Clarence Thomas and frequent swing vote Justice Anthony Kennedy joined the traditionally liberal bloc of Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor in an opinion written by Justice Stephen Breyer.

The majority agreed with the city that granting refunds would create an administrative hardship and that its decision to forgive Barrett Law payments met a key test.

“The City’s administrative concerns are sufficient to show a rational basis for its distinction. Petitioners propose other forgiveness systems that they argue are superior to the City’s system, but the Constitution only requires that the line actually drawn by the City be rational,” Breyer wrote.

“State law says nothing about forgiveness … To adopt petitioners’ view would risk transforming ordinary violations of ordinary state tax law into violations of the Federal Constitution,” the majority opinion said.

Indianapolis Chief Litigation Counsel Alexander Will said in an email, “We believe the Supreme Court’s opinion is simply an affirmation of existing equal protection jurisprudence. Otherwise, this case must be remanded for determination of the state claims, and the companion case is still pending in the U.S. District Court.”

Will said the city contracted and paid about $200,000 to the firm of high-powered Washington, D.C., attorney Paul Clement, who argued the city’s case before the justices.

“Without commenting on the pending litigation,” Will said, “the Supreme Court’s decision affirms … that administrative burdens and costs can be a rational basis for government decision making.”


rosenbaum-bill-mug.jpg Rosenbaum

The companion case Will refers to involves about 1,400 plaintiffs in a class action against the city seeking about $2.8 million in refunds. William Rosenbaum represents those clients in Owen & Evelyn Cox v. City of Indianapolis, et al., No. 1:09-CV-435. That suit includes property owners who paid varying amounts in numerous Barrett Law projects. The suit contests the city policy that forgave Barrett Law payments and also claims equal protection violations for those who paid more than others who received the same benefit.

Rosenbaum said the federal court had granted summary judgment in favor of the plaintiffs on the equal protection argument. “That obviously goes away as a result of the decision of the U.S. Supreme Court in the Armour case,” he said.

Cox v. Indianapolis remains before Judge Tanya Walton Pratt in the U.S. District Court for the Southern District of Indiana. A determination is pending on a request to reconsider dismissal of the portion of the case arguing violations of state Barrett Law.

Rosenbaum said the high court’s Armour ruling was disappointing. “It’s hard to imagine a set of facts that would come before the Supreme Court that would be a stronger call for the exercise of the Equal Protection Clause for individual taxpayers,” he said.


Jon Laramore Laramore

But Faegre Baker Daniels partner Jon Laramore said units of government also had much riding on the case.

Armour is a helpful decision for local governments,” Laramore said. “It specifically clarifies that administrative convenience will in most cases be sufficient to justify government programmatic decisions. That justification will not raise any equal protection problems.”

With Faegre partner Scott Chinn, Laramore wrote an amicus brief in support of the city on behalf of the International City/County Management Association, National Association of Counties, National Conference of State Legislatures, National League of Cities, and the United States Conference of Mayors.

Armour was a case of national interest because it seemed likely that the court would make law regarding how equal protection applies when there is a significant change in government policy,” he said. The decision probably puts to rest equal protection claims that could arise, for instance, when a government unit changes fee structures or sweeps streets more in one area than another.

Chief concerns

Chief Justice John G. Roberts, who wrote a sharp dissent joined by Justices Samuel Alito and Antonin Scalia, rejected such arguments.

“We have never before held that administrative burdens justify grossly disparate tax treatment of those the State has provided should be treated alike,” Roberts wrote. “Every generation or so a case comes along when this Court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context. … The equal protection violation is plain.”

Roberts also said the city’s actions failed the rational basis test.

“To the extent a ruling for petitioners would require issuing refunds to others who overpaid under the Barrett Law, I think the city workers are up to the task,” he wrote. “…What the city employees would need to do, therefore, is cut the checks and mail them out.”

Plaintiff Bill Main said the ruling was crushing to those expecting a different outcome based on the tenor of oral arguments.

“You had to take it, but it was hard to understand,” Main said. “The courts had a chance to correct what we thought was a gross injustice, and they didn’t do it.”

Despite the outcome, Waicukauski hopes the suit will discourage unfair treatment in the future by government entities.

“I think it’s important to understand that the Supreme Court didn’t say what the city did was right or fair,” he said. “They just said, ‘we’re not going to use the Equal Protection Clause to overturn the state Supreme Court.’”

Main drew a different lesson: “What I learned from it is that you never pay the city up front. I’ve learned to be very suspicious of the city.”•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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