Judge concerned remonstrators may not have enough time to ask for a stay

October 2, 2014

The Indiana Court of Appeals affirmed the annexation by the city of Martinsville of approximately 3,000 acres, finding the remonstrators’ appeal is moot because they did not ask for a stay of the annexation approval. But one judge had concerns that municipality clerks may be able to make an annexation final before remonstrators have enough time to consider requesting a stay.

In Certain Martinsville Annexation Territory Landowners v. City of Martinsville, 55A01-1402-MI-64, remonstrators appealed the trial court judgment Jan. 15 upholding the city of Martinsville’s annexation of 3,030 acres. The remonstrators never asked for a stay of the judge’s decision before appealing.

Based on statute, an annexation becomes effective when the clerk of the municipality complies with the filing requirement of I.C. 36-4-3-22(a), which includes filing the affirmed annexation ordinance with several entities, such as the office of the secretary of state and the circuit court clerk of each county affected.

In this case, Martinsville complied with the statute by Jan. 24. The remonstrators did not ask for a stay at any time before their appeal. Because the annexation has been finalized, their appeal is moot, the judges ruled. A court cannot order an annexation undone.

Judge John Baker concurred, but wrote separately to express concerns about the time period during which remonstrators may request a stay. He fears a clerk of the municipality may be able to finalize an annexation without allowing a reasonable time for remonstrators to determine if they will appeal and request a stay.

“I would interpret the annexation statute to allow a reasonable time period to request a stay. In the case before us, the Remonstrators never requested a stay, and I fully concur,” he wrote.


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