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.

Coverage for Kole V. Faultless

The case Kole Vs. Faultless rests in the hands of the Supreme Court. In the meantime, there has been some media coverage. The latest is from AtGeist.com, a neighborhood based online and print periodical:

Faultless contends that the Reorganization Act, which was legislated a few years ago in the Indiana State assembly, gives Fishers the ability to create what he calls a “modernized” or “hybrid” form of a Class II city. Under the Town’s current plan, the current Fishers town council would appoint themselves as the first city council and then they would appoint the mayor.

“We feel that all the residents of the city should be able to elect the mayor,” said Mike Kole, a plaintiff in the case.

Faultless thinks it would be delightful to have the new city's Mayor be selected by the new City Council rather than the voters. I guess if I were the current council president and wanted to become mayor without having to bother with campaigning, that would be a pretty snazzy way of going about it. Easy, cheap, free of pesky voters.

Other coverage:

IndyPolitics.org Includes an audio interview with me.

Hamilton County Politics Blog

The Indiana Law Blog

Mr. Smith Goes To Indianapolis

Yesterday, my case went to the Indiana Supreme Court for oral arguments. It was an interesting affair, to say the least.

The case is Kole et al vs. Faultless. To keep from the legal gobbledegook that would make the average reader's eyes glaze over, I'll describe it simply.

I see this as a good government case. In sum, the Fishers Town Council believes that the state's Reorganization law permits units of government to select any form of government it chooses. My position is that a reorganization must fit into existing forms. There are no municipal governments in Indiana with a selected mayor. If they want that, they need to amend the Indiana Constitution. The people get to vote on the mayor.

For instance, their plan advances a type of city that would feature a mayor selected by the new city council members. The people would not directly elect the mayor.

So, in that scenario, you can forget about the executive being a check or balance to the legislative. It is clear to me that they want a rubber stamp mayor. I do not believe this to be in the best interest of the people.

This case arose from a petition that the Town Council sat on. City Yes PAC circulated a petition, which I signed, that wished for a ballot referendum to put the question before the voters- city or town? The rationale was that the population of Fishers was so large (70,000+) that it was time to enter into that form of government. I wasn't entirely sold on that proposition. I was (and remain) wary of the other examples in Hamilton County, such as Carmel or Westfield, where the mayor is a strong arm pushing through pet projects, while their city councils are often the rubber stamps. But- and this is the important point for me- I believe that at the municipal level, the people should decide their form of representative government by their direct election. Put the question on the ballot, and let the people choose. It could go either way. This was done once before, and the people chose to remain a Town.

History could repeat itself, but apparently the Town Council wasn't too confident. So, when they received a valid petition, they did nothing with it. Thus, the lawsuits proceeded.

Link to Greg Purvis' take on the suit.
Link to Abdul Hakim Shabazz's report on the suit, complete with an interview with me.

There was nothing especially surprising in the Supreme Court proceedings, although there was one moment when I had to stifle myself a bit. One Justice asked Fishers' counsel what recourse citizens would have should Fishers get its way, become the city with an appointed mayor, and they find they don't like it. To paraphrase, he said that the people could petition for a referendum.

Are you freakin' kidding me?! This is precisely what happened at the front end of this saga, and it got sandbagged very intentionally. What right thinking person really believes the same people wouldn't do the same thing again?

There are some interesting ramifications that have occurred to me, should Fishers win. The reorganization law allows municipal officials to shape governments however they like, in their view. What's to stop them from eliminating mayors? Being hypothetical here, look at a city that has a strong inclination towards voting Republican or Democrat. Think of Carmel or Anderson. The latter is more apt for what is foreseeable.

Anderson normally votes Democrat, but from time to time, as in 2007, might elect a Republican mayor. Now they still had a predominantly Democratic council. In this scenario, great for checks and balances. But, lets say the council decides that's not politically expedient. So, they get together and put together a reorganization plan that eliminates the mayor. If they have the veto-proof numbers, goodbye mayor.

As a purely personal consideration, the Supreme Court is a very interesting corner of the Statehouse. The space is fairly intimidating, with an absurdly high ceiling, gold leaf pilasters and columns, stained glass, portraits of past Justices, the five Justices on a dais of high-backed throne-like chairs, the works. The Justices ask questions that poke holes in the arguments put forth by both sides.

I found myself trying to analyze the questioning. Did it mean that the Justice found the assertion invalid? Or, was it that he was inviting the counsel to help write the decision? If they did not question an item, was it because it was wholly worthless, or wholly without dispute? It was very hard to read into it.

Nothing to do now but wait for comment from the Court. We could wait months or even years, although we suspect they will decide the case in such time that the question could be placed on the November ballot.

Audio On Fishers Lawsuit

I was recently interviewed by Chris Spangle, Executive Director of the Libertarian Party of Indiana, for the party's podcast. The lawsuit against the Town of Fishers is discussed in detail.

On WXNT Wednesday Morning

Be sure to tune in to 1430-am Wednesday morning at 7am to hear me on the Abdul In The Morning show. I will be Abdul's guest to discuss my lawsuit against the Town of Fishers regarding failure to put the 'City or Town' question on the November ballot.

Where: 1430-am in Central Indiana
Online: http://www.newstalk1430.com/
When: Wednesday, 7-7:30am

A New Bill For Nothing In Particular

(Fishers, IN)- I knew this day would come. Our glorious federal government, via the Environmental Protection Agency and the Congress, has instituted something called Phase Two. In a nutshell, Phase Two addresses less egregious environmental hazards than what was addressed in Phase One, but specifically stormwater.

I'm not aware of a single municipality or county government that said, "No Thanks" to the implementation of the federal mandate. By virtue of my old job in the Hamilton County Surveyor's Office, I heard a lot of officials mumble behind closed doors about "environmental bullshit", but nobody stood up in public to give voice to such sentiments.

I've seen some Central Indiana government agencies deal with the implementation of Phase Two concerns addressing stormwater runoff in different ways, most of which are genuinely ineffective at addressing the problem. For if one truly wants to ensure no pollutants enter the waterways, one must ensure that no water enters the waterways.

Sorry, but it's impossible.

Undaunted and doubtless happy enough to create another layer of bureaucracy, the Town of Fishers circulated letters dated January 31, 2008 to property owners advising of a new Stormwater Utility Bill.

Oh, how grand! Residential property owners would be billed $14.85 per quarter.

And what do we get for our money? Pretty much... nothing. From the letter:

According to state and federal law, the Town of Fishers is required to implement the following six minimum control measures in order to protect local water bodies:

1. Public Participation and Involvement
2. Public Education and Outreach
3. Illicit (Illegal) Discharge Detection and Elimination
4. Pollution Prevention/Good Housekeeping
5. Construction Site Runoff Control, and
6. Post-Construction Runoff Control

Allow me to translate:

1. A tent at the Fishers Freedom Fest
2. A pamphlet for the tent at the Fishers Freedom Fest
3. A Rat-Out-Your-Neightbor program and cleanup crew
4. Back to the tent at the Freedom Fest
5. Permits and inspections on construction sites
6. More inspections on the same sites

Here's some more circular mumbo-jumbo from the letter:

What services will I receive as a result of the stormwater utility?
Fees collected through the Stormwater Utility Fee will be utilized to add additional staff and resources necessary to implement and comply with newly mandated stormwater pollution prevention programs. These additional resources will be utilited to help reduce the amount of polluted runoff associated with construction sites through increased plan review and site inspections procedures. Staff will also be charged with reducing the amount in stormwater pollution associated with illegal connections and discharges to the storm sewer by conducting screening of stormwater outfalls and conveyances. Finally, newly generated revenues will also be utilized to implement stormwater planning and implementation projects to improved localized drainage problems throughout the Town.

That's a lot of verbose BS to cut through. Again, I'll translate:

For my money as a residential fee payer, I'll build the local bureaucracy. I'll help hire a plan reviewer and an inspector or two. I'll subsidize the inspection of construction sites- why those building can't shoulder the burden is unknown. If somebody has a septic system mistakenly discharging into the drain, the inspectors will find it and have the property owner make a proper connection. If there's a drainage problem in Fall Creek Township, all of my Delaware Township neighbors and I can help pay for it, Vive Che!

So, why do I have to pay? Beats me. I mean, if I dumped motor oil or paint into the County Regulated Drain in my backyard, I could understand being held responsible for the clean-up. But it's a County Drain, so I would understand paying the County. By the way, I already pay an assessment for that Drain.

So, why this? The street was built without underdrains, so the water isn't being collected at the curb- until it runs all the way down the street to the catch basin. From there, it runs inside a 48" pipe that is underground at my property line, and discharges into- that's right- the County Regulated Drain.

I don't have loose soil. I don't have erosion. I don't do Chem-Lawn. I do not have a construction site. I am not a farmer. I do not dump chemicals or anything else. But now I have this bill.

It's clear that the lion's share of the bill will go to support the new bureaucracy. The letter was signed by a Stormwater Engineer with two fancy sets of initials- PE and LPG, so we at least have to pay for him... and a secretary... and a couple of inspectors... and an office, with office furniture and computers, and vehicles... and we'll have to provide benefits and insurance... and ...

GODDAMN! Is the water any fucking cleaner yet?

I've been to the Third World lately. America is really clean compared to Ecuador, where pollution is rampant. Can we give ourselves a bit of a break on the guilt trips at least long enough to stop growing more pointless government?

This fading republic is being heaped upon with more and more swindles and bamboozles. A few people get feel-goods about it, but the rest of us just get ripped off. Construction sites and farms are far and away the two biggest sources of water pollution in Hamilton County, so who gets the bill? The residential homeowner. What a steaming pile!

It would have been nice if some one elected official, anyone, had the balls and integrity to have told the feds and the state to stick it up the yin-yang on this farce.

Zoning And God

(Fishers, IN)- I grew up in Parma, Ohio- a town largely built in the post-WW2 boom, when GIs returned home and so many took the opportunity the flee the old cities and get into a new, safer, cleaner suburban community. Parma once held the claim to fame as the world's largest suburb.

There were many churches in my neighborhood, but besides the one I attended, the one that sticks out in my mind was St. Josaphat's Ukranian Church.

It's now known as the Ukranian Catholic Eparchy of Saint Josaphat. Essentially, it is a cathedral, with a Pope-appointed Bishop seated there.

St. Josaphat's Cathedral, Parma OH.

Needless to say, it's a crown jewel of the now-aging neighborhood- a thing of beauty that holds tremendous value (aesthetically, spirtually, monetarily) even as the surrounding area deteriorates a bit. It's bedrock for the community.

So it's interesting to me that my new hometown of Fishers is having a zoning debate over the height of a church. From an Indy Star report:

St. George Orthodox Church is moving from its longtime home on North Sherman Street in Indianapolis to 116th Street and Cumberland Road. The church plans to build a sanctuary more than five stories high but needs the town to make an exception to its zoning code to do so.

More than 20 homeowners who live near the church have told the town they oppose St. George's building plan. They say the size would dwarf the single-family homes in the area and disrupt the residential character of the neighborhood.

This is short-sighted on the part of the homeowners, at least if they plan on living in the community for more than three years. Back in Parma, St. Josaphat's dwarfs everything around it- until you go two blocks south and encounter my old church- St. Francis de Sales. Catch the thing I said about the bedrock of the community? Fishers is largely brand new today, just as Parma was in 1948. Fishers will deteriorate, just as surely as Parma has. Churches that are well-supported, however, are well maintained, and later serve to hold the rest of the community up as the deterioration begins around it. Why wouldn't you want that? More from the Star:

(Bob) Kehlor sees more than aesthetics involved in opposition -- it's a matter of principle.

"I asked for small variance for my property to build a driveway, and the town wouldn't let me do it,' he said. "That was nothing compared to what they want to do. The town should stick to its code, otherwise why even have it."

I can understand his very legitimate gripe. Why should one property owner be restricted while another can have the rules bent? Mr. Kehlor supplies the answer- get rid of the zoning.

As long as there is zoning, there will also be zoning appeals, and therefore variances. And, so long as variances are granted to some and not to others, the accusations of favoritism and unfair dealings will be there and will be legitimized. Zoning does unfairly punish individual property owners, who lack the kind of numbers a church can present- in terms of members-as-lobbyists, and cash for variance fees. Zoning's intent is to protect one property owner from the destructive actions of another. I doubt Kehlor's driveway would have been injurious to his neighbor. I can assure anyone that having a more grand church isn't going to injure anyone either. Quite the contrary. The problem is an overreaching government, that is well-exposed by this example.

If the Church owns the land, the Town shouldn't be able to play Land God over it, any more than it should have over Mr. Kehlor.

The old argument against zoning-free communities is that, "a hog farm could spring up next to you". In case you hadn't noticed, the hog farms in Fishers are long gone. They sold out to developers, because the land was far less valuable as a hog farm. That argument is bunk.

At the end of the day, I think that if this was a building that added assessed value to the Town, there would be no discussion. The variance would be granted- post haste. But, it will add a very different set of values to the Town, but also including property values for the neighborhood that surrounds it. Approve the darned thing!