Supreme Court hears INDOT case during Rucker’s final oral arguments

In his last oral arguments on the bench of the Indiana Supreme Court, Justice Robert Rucker and three other justices considered the public standing doctrine and the concept of parens patriae as they weighed granting transfer to a case involving a dispute between a state agency and a local municipality.

The court, minus Justice Geoffrey Slaughter, heard arguments in the case of Board of Commissioners of Union County, Indiana v. Joe McGuinness, in his official capacity as Commissioner of the Indiana Department of Transportation, 81A01-1603-PL-00696, on Tuesday, the last day Rucker hear arguments. The milestone for the retiring justice was marked with little fanfare, with Chief Justice Loretta Rush telling audience members at the beginning of arguments they were part of history as they witnessed his final thoughts and questions as a justice. The court then got down to business, hearing the case and making no other public reference to the most senior justice’s retirement next week.

The case stems from roadwork the Indiana Department of Transportation completed on State Highway 27 in Union County in 2010 and 2011, when INDOT allegedly damaged septic systems on the properties of three private landowners, causing raw sewage to leak into a ditch. In its case before the Union Circuit Court, Union County claimed INDOT’s alleged negligence “may (have impacted) other properties and may (have implicated) a broader public health and safety concern… .” The trial court dismissed the case, finding the county lacked standing to sue the state.

However, the Indiana Court of Appeals reversed in December, with Judge Michael Barnes holding that the county could seek declaratory relief as to who bears responsibility for State Highway 27. Additionally, the appellate panel held the county could also seek injunctive relief under the public standing doctrine.

But Andrea Rahman, a deputy attorney general who argued before the court on behalf the state, warned the justices that letting the Court of Appeals’ ruling stand would allow Union County and other similar local governmental entities to usurp the state’s parens patriae authority to sue on behalf of its citizens. An affirmation of the decision would circumvent the Supreme Court’s holding in Board of Commissioners of Howard County v. Kokomo City Plan Commission, 263 Indiana. 282, 330 N.E.2d 92 (1975), which reserves parens patriae authority to the state.

But James Williams, counsel for Union County, pointed to the court’s opinion in State ex rel. Cittadine v. Indiana Department of Transportation, 790 N.E.2d 978, 979 (Ind. 2003), a case which links the public standing doctrine to the Declaratory Judgment Act. A municipal corporation such as Union County is defined as a “person” under the Declaratory Judgment Act, Williams said, giving the county public standing to bring its claims against INDOT. Cittadine does not reference “citizens,” Williams said, but rather only references “persons,” disputing Rahman’s arguments that only citizens can bring claims under the public standing doctrine.

Posed with a question from Rucker about why the county’s claim does not satisfy the standing requirements to bring a declaratory judgment claim, Rahman said the only issue the county cited to show its rights were affected was the possibility of a public health concern. If the Court of Appeals decision is affirmed, then the door would be open for counties to bring claims against their own residents based on “vague and speculative claims” of possible public health concerns, she said.

Rather than bringing a claim against INDOT, Rahman said the appropriate remedy for the county would have been to first seek a resolution with the private owners of the leaking septic tanks. If a resolution could not be reached, then the landowners could have joined the state as a party, she said.

Williams agreed that Rahman’s method was one way to approach the issue, but said the county chose to bring claims against INDOT instead because it would have been unfair to sue the citizens because it was unclear if a local ordinance violation had occurred. Instead, he said the county was seeking declaratory judgment as to who is responsible for the ditch where the raw sewage is leaking and, if the state bears that responsibility, an injunction ordering the state to comply with its duty.

Full oral arguments in the case can be viewed here

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