ILNews

Judges won’t revisit associational standing issue on same case

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT