Thursday, March 15, 2012

Stunned By Decision

Kole v. Faultless, the lawsuit I am participating in against the Town of Fishers has been decided. The headline says it all.

More than anything here's the part that just flat out stuns me. We had this as our legal question, from Justice Shepard's decision:
In particular, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana has asked us the following question, certified under Indiana Appellate Rule 64(B):

Whether a political unit may reorganize into a city under Ind. Code art. 36-1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Ind. Code § 36-4-5-2 and Ind. Code § 36-4-6-3(i), including reorganization as a city with (1) a council elected entirely at large; and (2) a mayor appointed by that council.

We have accepted this question and now hold that Article 1.5 of Title 36 does allow a political subdivision to do so.1
Are you kidding me? The question is, 'Can Fishers eliminate voting rights'? The answer is 'Yes!'?

I think the big learning curve for me here is that the consideration is strictly a legal question. Our question was framed in Indiana court, with it imposed against a particular law, the "Reorganization Act". They took an incredibly narrow view of the law. The law doesn't preclude a municipality from forming this kind of government, or any other. Shepherd points to a 'liberalization' over time in Indiana in reducing barriers and restrictions to the municipalities, and evokes a move away from Dillon's Rule, and towards Home Rule.

I'm not sure I buy that. My interest is in the people's self-government. Our petition was sandbagged by the Town Council so they could advance a plan crafted in its' own interest. I don't see that as Home Rule at all. A vote of the elected officials is nowhere near the same thing as a vote of people. Maybe I just badly misunderstand the term. Anything is possible. I thought this case was a slam-dunk.

The language of the decision suggests that a door is open for laws to be written that do specify the forms of municipal government entities can form. It offers no guidelines. So, wanna create a kingdom! Hey hey, go for it! Home Rule, baby!

What move comes next has not been determined. I do expect the Fishers Town Councilors to call a press conference, do a happy dance, and generally drag our names through the mud. Can't wait for that.

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