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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

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