Justices to consider certified question on municipal reorganization

December 23, 2011

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.



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