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Judges won’t revisit associational standing issue on same case

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Finding it had already ruled on an associational standing question six years ago in the same case, the Indiana Court of Appeals has denied an electric utility's attempt to re-litigate that issue based on the law-of-the-case doctrine.

A unanimous decision comes in Indiana-Kentucky Electric Corp., et al. v. Save the Valley, et al., No. 49A02-1011-MI-1178, a case that had been remanded to Marion Superior Court after the state’s intermediate appellate court ruled on the suit back in 2005.

The case involves the Indiana-Kentucky Electric Corp’s (IKEC) solid waste permit to operate a coal-fired electric generation station in Jefferson County, known as the Clifty Creek Station. Several environmental groups including Save the Valley Inc. and Hoosier Environmental Council wanted that permit reviewed by the Indiana Office of Environmental Adjudication in late 2002 because of environmental and public health concerns, and IKEC moved to have the review petition dismissed on grounds that it didn’t have standing.

The citizens groups argued they had associational standing, but the trial judge granted summary judgment and that issue went before the Indiana Court of Appeals. The appellate court ruled on that issue of first impression in January 2005, reversing the local judge and holding that Save the Valley and the other groups did have associational standing to bring the administrative review claim.

On remand, the Marion Superior judge sent the case back to the Office of Environmental Adjudication for further administrative proceedings and in March 2010 the state office found in IKEC’s favor on the merits. But IKEC wanted judicial review in part to get a court ruling that an organization can’t have administrative review under state law even if that organization states facts demonstrating its members are aggrieved or adversely affected by an agency action.

The trial judge declined to allow that associational standing argument, and granted the citizens group petition to dismiss the IKEC petition for judicial review. That led to this latest appeal.

On appeal, IKEC argues that the Court of Appeals didn’t have subject matter jurisdiction to rule on associational standing in the initial Save the Valley appeal because it had ruled the trial court didn’t have subject matter jurisdiction – therefore that issue of associational standing was “saved for another day;” and “IKEC claims that day has now arrived.”

Relying on the long-established law-of-the-case doctrine that provides an appellate court’s determination of a legal issue is binding on both the trial and appellate court in any subsequent appeal in the same case, the appellate panel rejected IKEC’s newest claim to re-litigate that issue on associational standing. After it affirmed its ruling on rehearing and the Indiana Supreme Court denied transfer, the appellate court’s ruling in Save the Valley I became the law of the land on that issue.

“The case and facts have remained essentially the same,” Judge Nancy Vaidik wrote for the court. “IKEC, however, appears to argue that there are extraordinary circumstances which require us to revisit our decision.”

Judges on the appeals court rejected IKEC claims that the state justices didn’t adequately consider a similar case pending at the time, even though the original Court of Appeals panel did address that issue and the Supreme Court denied transfer; and also dismissed arguments that the past ruling wasn’t valid after the justices later issued K.S. v. State, 849 N.E.2d 538 (Ind. 2006), that the electric utility says voided the Save the Valley I issue of associational standing.

“The issue in Save the Valley I was whether Citizens Groups had standing to challenge IKEC’s permit and therefore whether the OEA had subject matter jurisdiction, not whether any procedural requirements were satisfied,” Judge Vaidik wrote. “Although we used the phrase ‘jurisdiction over the case,’ we used it just like the Supreme Court meant – that the OEA had jurisdiction over the general class of actions to which the case belonged. K.S. did not abrogate Save the Valley I’s discussion of associational standing, and it is therefore not an extraordinary circumstance under the law-of-the-case doctrine.”

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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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