Justices toss Gary ‘welcoming ordinance’ lawsuit for lack of standing

A lawsuit challenging the city of Gary’s “welcoming ordinance” for immigrants was thrown out Thursday by the Indiana Supreme Court after the justices determined the plaintiffs lacked standing to sue the city.

After hearing oral arguments in June, the justices on Thursday granted transfer then dismissed the case of City of Gary v. Jeff Nicholson, et al., 22S-MI-252.

The case dates back to 2017, when Gary passed its “Welcoming City” ordinance to “ensure that the immigration status of those who live, work, or pass through the city will not affect how they are treated by Gary agencies and agents, including its police department and social services providers.”

Jeff Nicholson, Douglas Grimes, Greg Serbon and Cheree Calabro sued the city over the ordinance, alleging four of its provisions violated Indiana Code §§ 5-2-18.2-3 and -4.

The plaintiffs’ complaint alleged they had statutory and public standing based on their “public interests in the performance of public duties required by Chapter 18.2, including interests in enforcement of the law and public safety.”

The Lake Superior Court granted summary judgment for the plaintiffs, prohibiting Gary from enforcing parts of its ordinance. But a split Court of Appeals of Indiana found that only limited portions of Gary’s ordinance violated state statutes, thus partially affirming and reversing and remanding the case.

“The plaintiffs claim they have standing to sue under principles of public standing and a separate statutory right to sue under Indiana Code section 5-2-18.2-5. … Indiana law is clear that standing requires an injury,” Justice Geoffrey Slaughter wrote. “… But the plaintiffs, acknowledging they have alleged no injury, argue instead that lack of injury is ‘irrelevant’ here because they have statutory and public standing. We disagree. Because the plaintiffs allege no injury, there is no justiciable dispute.”

The plaintiffs argued they had “domicile-standing” under I.C. 5-2-18.2-5. But the high court noted in its six-page opinion that similar to the Endangered Species Act’s “citizen-suit” provision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) — and unlike the utility code’s “adversely affected” provision in Solarize Indiana, Inc. v. Southern Indiana Gas and Elec. Co., 182 N.E.3d 212 (Ind. 2022) — Section 18.2-5 has no injury requirement.

“Thus, the statute upon which the plaintiffs rely for ‘domicile standing’ cannot meet our constitutional requirements for conferring standing,” Slaughter wrote.

It further declined to find that the plaintiffs have public standing, noting that although Indiana’s public-standing doctrine is unsettled, at a minimum it requires some type of injury.

“Finally, the State’s intervention here does not alter our standing analysis,” Slaughter concluded. “The State did not file a separate complaint, sought no relief from Gary, intervened only to ‘offer its view of the meaning of the relevant statutory provisions’, and conceded at oral argument that dismissal would be appropriate if the plaintiffs lack standing. Because we hold that plaintiffs lack standing, we also hold that dismissal is warranted here.”

As such, the unanimous justices remanded to the trial court with instructions to dismiss the action.

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