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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT