Justices to consider certified question on municipal reorganization

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The Indiana Supreme Court has accepted a certified question from a federal judge in Indianapolis that asks whether a township can reorganize into a city in a way that deprives some residents of their statutory rights to vote for mayor and city council.

An order from the Supreme Court Tuesday accepts the certified question from U.S. Judge Tanya Walton Pratt in the Southern District of Indiana, where the federal lawsuit of Michael R. Kole, et. al. v. Scott Faultless, et. al., No. 1:10-cv-01735 is pending.

Filed in December 2010, the federal suit involves the Town of Fishers, which in May 2010 began the process to reorganize by combining with Fall Creek Township and became a second-class city. Indiana Code 36-4-1.5 allows for that reorganization by asking residents to vote on the change, and in this situation more than 1,700 residents signed a petition, including the three plaintiffs who are registered voters in Fishers and live in Fall Creek Township.

But the suit alleges that council members didn’t follow the statutory requirements. The suit says the reorganization would establish a city council-appointed mayor rather than a voter-elected one, make it so all council members are elected “at large” instead of some representing specific areas, and keep existing town council members in office as new city council members until the next municipal election in 2015 rather than setting a municipal election in 2011 for voters to choose the new mayor.

The suit comprises 20 counts alleging that the defendants violated state law and the Indiana Constitution, and it requests declaratory judgments against the town and council members.

Earlier this year, Pratt declined to dismiss the federal claims as defendants requested and issued a stay until the federal court could decide on certifying a question to the state courts. U.S. Magistrate Judge Debra McVicker Lynch issued a report in November that granted the certification request, writing that Indiana courts haven’t yet addressed these pivotal state law issues affecting the structure of Hoosier municipalities and voting rights of Indiana residents.

Pratt adopted her magistrate’s report on Dec. 6 and asked the Supreme Court to consider the question, and earlier this week the court agreed to accept the rephrased question: “May a political unit reorganize into a city under Indiana Code article 36-1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Indiana Code sections 36-4-5-2 and 36-4-6-3(i), including reorganization as a city with (1) a council elected entirely at large, and (2) a mayor appointed by that council?”

The justices have ordered simultaneous briefing so that both the plaintiffs and defendants can file a single principle brief with appendix by Jan. 20, 2012. The court will issue an order setting oral arguments once briefing is complete.

 While the justices consider this question, the federal suit remains on hold.



  • Clarification
    The article confuses one important point. A petition to change Fishers into a City with an elected Mayor was submitted PRIOR to the township merger process being started. The township merger process, backed by the incumbent Fishers Town Council, would eliminate the right of residents to vote for a Mayor, and would keep the present "town" form of government, and call it a City. The current Town Council is attempting to subvert the original petition, submitted by a committee which I chaired at the time.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.