COA: Open door lawsuit requires a bond to continue

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Residents of Cass County who challenged the local government’s actions to lure a zinc oxide manufacturing facility to their community will have to put more skin in the game to continue their fight after the Court of Appeals of Indiana found they filed a public lawsuit that requires the setting of a bond.

The residents assert Cass County officials violated Indiana’s Open Door Law and negotiated in secret to convince Waelz Sustainable Products to construct its new plant in the county.

Specifically, the residents allege Cass County created a secret “WSP Incentive Committee” to negotiate financial and environmental terms for the construction project. Also, they assert the public was not granted proper access to the county council’s Sept. 18, 2020, meeting where officials approved the ordinances required for the building of the facility.

Initially, the residents filed two complaints, but the Cass Superior Court granted a motion to consolidate.

Cass County responded to the residents’ allegations by filing a motion for a hearing to set bond pursuant to the Public Lawsuit Statute, Indiana Code § 34-13-5-7(a). At the three-day trial, the residents presented their open door allegations and added their concerns about the environmental impact of the project on their health and property.

The Cass Superior Court found the Public Lawsuit Statute did not apply because the main basis of the consolidated case was “the protection of the plaintiffs’ own private interests.”

The Court of Appeals reversed in Tracy Williamson, et al., as the Cass County Council, and David Arnold, et al., as the Cass County Redevelopment Commission v. Patricia Razer, et al., 21A-PL-1167, finding the heart of the residents’ complaints allege open door violations.

Namely, the appellate panel ruled the residents’ claims of open door violations did not seek to protect their private interests, but rather, they wanted to protect the public’s interest in accessing the decision-making process of its government.

“We recognize that the Plaintiffs, during the bond hearing, expressed concerns of the environmental impact of the Project on their health and land. However, the Plaintiffs’ two causes allege Open Door violations, and the remedy the Plaintiffs ultimately seek — the invalidation of the ordinances and the resolution necessary to begin the Project — are public interests,” Judge Rudolph Pyle wrote for the court, citing Tipton Cty. Bd. Comm’rs v. Prather, 75 N.E. 3d 536 (Ind. Ct. App. 2017).

“… Because the Plaintiffs’ two causes alleging Open Door violations are a public lawsuit and the interests the Plaintiffs seek to protect are public interests, we conclude that the trial court erred by denying Cass County’s motion for the Plaintiffs to post bond pursuant to Indiana Code § 34-13-5-7(a),” Pyle concluded. “Accordingly, we reverse and remand this consolidated cause to the trial court for further proceedings, including the setting of a bond as set forth in the Public Lawsuit Statute.”

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