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Appeals court: Homeless woman must comply with panhandling ordinance

April 16, 2019

A homeless woman challenging an Indianapolis ordinance restricting panhandling must comply with an injunction prohibiting her from violating the local code after the Indiana Court of Appeals reversed a grant of relief from judgment initially entered in her favor.

In May 2017, Ginger Tichy was permanently enjoined from violating Section 431-702 of the Indianapolis Municipal Code, which prohibits pedestrians from soliciting from or talking to a person in a vehicle that is on the road if the pedestrian is standing in a median or is within 50 feet of an intersection. The city subsequently moved to have Tichy found in contempt for allegedly violating the injunction.

Tichy responded by moving for relief from injunction under Indiana Trial Rule 60(B), arguing the injunction was overbroad and “impose(d) a serious burden on Ms. Tichy’s ability to engage in lawful, passive panhandling — an activity vital to her survival … .” Tichy also testified that on windy days she sometimes fell off of road medians but had never been hit by a car.

The Marion Superior Court granted relief to Tichy, finding the local ordinance was pre-empted by Indiana code. But the Indiana Court of Appeals reversed Tuesday, with Judge Edward Najam writing “(n)othing at all about Tichy’s testimony on her motion for relief from judgment under Trial Rule 60(B)(7) demonstrates exceptional circumstances that were not reasonably foreseeable at the time of the entry of the injunction.”

“Indeed, the circumstances to which she testified at the hearing on her Rule 60(B) motion were the exact same circumstances that were the factual predicate for the injunction in the first place,” Najam wrote. “In effect, then, her motion under Rule 60(B)(7) simply sought to relitigate the merits of the original judgment, which is not an appropriate basis for relief under Trial Rule 60(B).”

The appellate court also found Tichy was not eligible for relief under Rule 60(B)(8), rejecting her argument that her lack of counsel during the original injunction proceedings was a basis for relief. Not being represented by counsel is not an “extraordinary circumstance” considered under the rule, Najam said.

Thus, the court reversed the grant of relief to Tichy, declining to reach the merits of the case because of the error under Rule 60(B). The case is City of Indianapolis v. Ginger Tichy, 18A-OV-2202.  

Tichy has also brought a federal suit against Indianapolis Police Chief Bryan Roach in his official capacity, arguing Section 431-702 is unconstitutional. However, Indiana Southern District Magistrate Judge Tim A. Baker granted the chief’s motion to dismiss last month.

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