KOLE et al v. FAULTLESS et al

Filing 76

REPORT AND RECOMMENDATIONS re 69 Plaintiffs' MOTION to Reopen Case and to Certify Question of State Law to the Indiana Supreme Court. Signed by Magistrate Judge Debra McVicker Lynch on 11/18/2011. (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL R. KOLE,
JOSEPH L. WEINGARTEN, and
GLENN J. BROWN, individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
SCOTT FAULTLESS, DANIEL HENKE,
EILEEN PRITCHARD, STUART EASLEY,
DAVID GEORGE, ARTHUR LEVINE,
THE TOWN COUNCIL OF FISHERS,
INDIANA, and FALL CREEK TOWNSHIP,

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CASE NO. 1:10-cv-01735-TWP-DML

Defendants.

Report and Recommendation on Plaintiffs’ Motion to Reopen Case
and to Certify Question of State Law to the Indiana Supreme Court
The Honorable Tanya Walton Pratt designated this magistrate judge, as provided by 28
U.S.C. § 636(b)(1)(B), to issue a report and recommendation on the plaintiffs’ Motion to Reopen
Case (Dkt. 69). The Motion to Reopen Case asks the court to lift its earlier-imposed stay for the
purpose of this court certifying a question of state law to the Indiana Supreme Court. The
plaintiffs’ motion thus also requires the magistrate judge to provide a report and recommendation
on the plaintiffs’ corresponding Motion to Certify a Question of State Law (Dkt. 69-1). The
proposed question involves the interplay between Indiana citizens’ statutory voting rights in local
elections and a municipality’s powers to reorganize under more-recently enacted laws. The
Fishers defendants (meaning all defendants except Fall Creek Township, which did not file a
response to either motion) have responded that they do not object to the plaintiffs’ request that

the court reopen the case and certify a question of state law to the Indiana Supreme Court. The
parties do, however, propose different wording and scope for the question(s) to be certified.
Background1
This lawsuit challenges a proposed reorganization of the Town of Fishers that would
combine it with Fall Creek Township and become a city. Under that proposed reorganization,
the mayor will not be elected by voters but appointed by members of the council. In addition, all
of those council members would be elected by voters at-large, in contrast to a council made up
of both at-large members and members elected solely by the voters in that member’s
geographical district. The proposed reorganization has been approved by the current Town
Council of Fishers (whose members are the individual defendants in this case), and it is
scheduled for a vote during the next general election within the Town in November 2012. The
plaintiffs are registered voters within either of the Town of Fishers or Fall Creek Township.
On May 3, 2010—before the Fishers Town Council formally considered what eventually
became its proposed reorganization—the plaintiffs had filed a petition with the Fishers’ Town
Clerk under Ind. Code § 36-4-1.5-2 requesting the Town Council to adopt a resolution
submitting to the Town’s voters the question whether Fishers should be changed from a town to
a “traditional city.”2 That “traditional city” would, among other things, have a mayor elected by
the citizens of the city. The plaintiffs’ referendum is also scheduled for a vote in the November
2012 general election.

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This background section is taken largely from the court’s Entry on Defendants’ Motion to
Dismiss and Alternative Motion to Set a Bond on Plaintiffs’ State Claims (Dkt. 68 ), entered
September 2, 2011.
2

“Traditional city” is not a statutory term or a term used in the plaintiffs’ petition, but
rather is the court’s shorthand for referring to the proposal embodied in the plaintiffs’ petition.
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The plaintiffs’ amended complaint asserts that the proposed reorganization deprives them
of certain voting rights Indiana law unequivocally grants—the right to elect a mayor and to elect
some council representatives by geographic district—in violation of state law and, as a
consequence, in violation of the First and Fourteenth Amendments to the United States
Constitution. The plaintiffs principally rely on two Indiana statutes: (1) Ind. Code § 36-4-5-2(a),
which provides, for a second class city, “[a] mayor, who is the city executive, shall be elected
under IC 3-10-6 by the voters of each city,” and (2) Ind. Code § 36-4-6-3(i), which provides, for
a second class city, that “[e]ach voter of the city may vote for three (3) [city council member]
candidates for at-large membership and one (1) candidate from the district in which the voter
resides.”3
The Fishers defendants moved to dismiss the plaintiffs’ amended complaint on the
ground that their complaint failed to allege federal constitutional claims on which relief may be
granted and, without viable federal claims, the court should decline to exercise supplemental
jurisdiction over the state law claims. The lynchpin of the defendants’ argument was the
Reorganization Act, at Ind. Code art. 36-1.5. The Fishers defendants argued that the
Reorganization Act, passed by the Indiana General Assembly in 2006, contemplates and
legitimizes a town’s choice to reorganize as a city in a non-traditional way, such as the proposed
reorganization passed by the Fishers Town Council, without running afoul of any of the statutory

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The plaintiffs also emphasize other provisions of the Indiana Code, including the general
Local Government provisions, Ind. Code ch. 36-1-2, and the general Election Code, Ind. Code
ch. 3-5-2, as sources of the inviolable right of a citizen of a city to elect the city’s mayor and city
legislative members by geographic district. They further point out that the Election Code
defines a city by reference to a statutory section, Ind. Code § 36-4-1-1, within the same title and
article as the voting rights at the center of this litigation. In short, the plaintiffs argue that the
mosaic of these various statutes prohibit a town from reorganizing as a city without preserving
rights under the Election Code for electing a city’s executive and members of its legislative
body.
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voting rights that otherwise may be recognized under the statutes cited by the plaintiffs. The
defendants’ argument pointed to the broad purposes of the Reorganization Act, the broad powers
granted to local entities under the Act, and the General Assembly’s directive that the Act be
“liberally construed,” as described, respectively, in Ind. Code § 36-1.5-1-1, § 36-1.5-4-4, and §
36-1.5-1-5. In addition, they relied on the provisions of the Reorganization Act regarding any
conflict between it and other laws, citing Ind. Code § 36-1.5-1-4, which states that a political
subdivision may exercise powers granted by the Act “without complying with the provisions of
any other law, statute, or rule,” and Ind. Code § 36-1.5-1-6, which states that “[e]xcept as
otherwise specifically provided by law, to the extent the provisions of this article are inconsistent
with the provisions of any other general, special, or local law, the provisions of this article are
controlling, and compliance with this article shall be treated as compliance with the conflicting
law.”
As the court found, the decision whether the plaintiffs’ federal constitutional claims are
viable or should be dismissed under Rule 12(b)(6) requires a threshold determination whether the
Reorganization Act authorizes a local government entity to reorganize in a manner that
eliminates voting rights recognized by other state statutes. That question—as examined and
explained by the district court—is one that requires the construction of Indiana state statutes not
readily discerned and susceptible to plausible competing interpretation, for which Indiana courts
have not yet had the opportunity to provide guidance. In addition, the Indiana statutory
provisions concerning the structure of municipalities and the voting rights of Indiana citizens in
local elections address matters of profound importance to the state. These considerations led the
court to abstain from deciding the plaintiffs’ federal claims to “provide the state with an
opportunity to, for the first time, shed light on the meaning and scope of the Reorganization Act

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and clarify the extent of authority a local governmental entity has to reorganize its structure and
administration under Indiana law.” (Dkt. 68 at p. 15). The court has retained jurisdiction over
the plaintiffs’ federal claims but has abstained “from deciding questions of federal constitutional
law pending an authoritative determination of Plaintiffs’ state law claims and interpretation of
the contested state statutes by an Indiana state court.” (Id. at p. 21). The court contemplated that
the plaintiffs would file an action in state court to obtain that determination.
Analysis
A. Whether the Court Should Certify a Question of State Law to the Indiana Supreme
Court
The plaintiffs’ motion to reopen asks the court to find that, instead of the plaintiffs filing
a new case in state court, a more expedient manner for obtaining an authoritative determination
of the state law claims that underlie the plaintiffs’ federal constitutional claims is the court’s
certification of the state law question to the Indiana Supreme Court, as provided by Rule 64(A)
of the Indiana Rules of Appellate Procedure. The plaintiffs point out that even if they bring a
new state court case, any decision on the question of Indiana state law likely would be appealed,
and the issues eventually would reach the Indiana Court of Appeals, and then the Indiana
Supreme Court on a discretionary basis—but many months, if not years, later than if this court
now directly requests the Indiana Supreme Court to accept or refuse the state law questions for
its determination. Delay may prejudice all the parties too, because the reorganization proposal
and the plaintiffs’ competing proposal are scheduled for a vote of Fishers and Fall Creek
Township voters in November 2012, and a decision later than the November 2012 vote could
significantly affect the parties’ remedies and the governmental structure of Fishers. And, as
noted above, the Fishers defendants have not disputed the propriety of certification.

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Rule 64 of the Indiana Rules of Appellate Procedure permits a federal district court to
certify a question of Indiana law to the Indiana Supreme Court “when it appears to the federal
court that a proceeding presents an issue of state law that is determinative of the case and on
which there is no clear controlling Indiana precedent.” Only in a rare case will this court find it
appropriate to ask the Indiana Supreme Court to accept a question for decision. Certification is
appropriate, however, “‘when the case concerns a matter of vital public concern, where the issue
will likely recur in other cases, where resolution of the question to be certified is outcome
determinative of the case, and where the state supreme court has yet to have an opportunity to
illuminate a clear path on the issue.’” Green v. Ford Motor Co., 2010 WL 2673926 at *3 (S.D.
Ind. June 30, 2010) (quoting State Farm Mut. Auto Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir.
2001)).
These considerations are virtually identical to those that persuaded the court to abstain
from deciding the state law issues underlying the plaintiffs’ federal constitutional claims, as
addressed in detail by the court’s Entry on Defendant’s Motion to Dismiss ( Dkt. 68). And for
the same reasons that the court determined that abstention was appropriate, certification to the
Indiana Supreme Court of the pivotal question regarding the Reorganization Act’s affect on
statutory voting rights is an appropriate vehicle for obtaining an authoritative determination of
the issues underlying the plaintiffs’ state law claims. In addition, determination of the state law
issue will be outcome determinative of the federal constitutional claims. Those claims present
vital issues of state law affecting the structure of Indiana municipalities and voting rights of
Indiana citizens, and the Indiana courts have not had occasion to address them. Moreover, the
court is persuaded that the nature of the questions presented militates in favor of determination

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by certified question rather than the far more lengthy process abstention, coupled with a separate
state court action, would require.
B. The Scope and Wording of the Question(s) to Be Certified
Although the parties do not disagree that this court should certify a question to the
Indiana Supreme Court regarding the state law voting rights issues and the effect of the
Reorganization Act, they disagree on the appropriate scope and wording of the question(s).
Three specific issues relating to scope and wording require discussion. First, the defendants’
proposed wording incorporates a question regarding the “timing” of the votes scheduled on both
the reorganization proposal and the separate petition for Fishers to become a “traditional” city.
Second, the plaintiffs propose that the issue presented be articulated in two separate questions.
Third, the defendants want the court to pose an additional, unrelated question to the Indiana
Supreme Court.
1. The “timing” question
The plaintiffs alleged in this case that the Fishers Town Council’s delay in scheduling a
vote on the plaintiffs’ petition (to more than two years from the date of that petition) violated
their voting rights. The court dismissed that claim (see Dkt. 68), and the plaintiffs’ motion to
reopen and to certify a question of state law does not challenge or even address that ruling. The
plaintiffs also made the related argument that it would be inherently confusing to voters and
unconstitutional to have both the defendants’ “non-traditional city” and their “traditional city”
referenda combined on the same ballot. This court has not yet specifically addressed that
argument. The Fishers defendants now want this “combination” issue to be incorporated into the
question certified to the Supreme Court. The court finds it inappropriate to do so. First, to the
extent the issue revolves around an alleged improper delay in putting the plaintiffs’ proposal on

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the ballot, this court has already ruled, and it is not appropriate (or necessary) for the court to
seek guidance from the Indiana Supreme Court on that claim. Second, whether the Fishers
defendants’ proposed reorganization is properly put to the voters at all is within the question to
be certified to the Indiana Supreme Court. The Supreme Court’s determination of that question
could render the “combination” question moot. Finally, whether having both petitions on the
same ballot is impermissibly confusing is a separate question, and the defendants have not
offered any reason why it is worthy of certification under Indiana Appellate Rule 64. Indeed, it
may not even present a question of Indiana law. If and when that question is squarely presented
for determination, this court can rule on it.
2. The plaintiffs’ two-part question
In addition to the issue specifically implicated by the claims in this case (whether voting
rights granted by certain Indiana statutes can be eliminated by a governmental structure
purportedly authorized by the Reorganization Act), the plaintiffs propose that the court certify a
more general question as well:
Whether a political unit may reorganize into a city under Ind. Code § 36-4-1.5 (the
“Reorganization Act”)4 in a manner that defines a “city” differently than Ind. Code § 3-52, Ind. Code § 36-1-2 and/or Ind. Code § 36-4-1.
This articulation of the issue posits a broader question than that presented by this case.
The plaintiffs’ claims are premised on what they contend is an unconstitutional deprivation of
voting rights conferred by Indiana statutes. Whether the Reorganization Act permits other sorts
of variances from the attributes of a “city” outlined in Indiana statutes goes beyond the issues
underlying the claims the plaintiffs have asserted in this case. Asking the Indiana Supreme Court
to opine on this theoretical question is not appropriate. Moreover, even if the plaintiffs were
4

The plaintiffs’ proposed question also incorrectly cites the Reorganization Act, which is
at Ind. Code art. 36-1.5.
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challenging in this case the legality of other (non-voting rights) attributes of the defendants’
proposed reorganization, they have not demonstrated that those challenges implicate federal
constitutional rights. When a plaintiff has brought a purely state law claim in federal court and
then asked the federal court to certify the question to the state supreme court, that factor militates
against certification. See Brown v. Argosy Gaming Co., 384 F.3d 413, 417 (7th Cir. 2004) (court
is entitled to take into account whether the request for certification came from a plaintiff who
chose federal jurisdiction in the first place).
3. The bond question
The Fishers defendants request that this court include in its certification another question
of state law they would like the Indiana Supreme Court to answer.5 They want the Supreme
Court to say whether the plaintiffs are required by Ind. Code ch. 34-13-5 (the Public Lawsuit
Act) to post a bond in order to challenge the Town of Fishers reorganization proposal. This court
has already ruled on the bond issue. It denied the defendants’ request, and the defendants have
not set forth any basis for this court to reconsider its ruling, made any attempt to demonstrate that
the court’s decision was wrong, nor shown that this issue is worthy of certification under the
stringent standards to be applied under Ind. App. R. 64.
C. The Question to Be Certified to the Indiana Supreme Court
This court should fashion the certified question in an objective manner not suggestive of
any particular outcome. The defendants’ proposed wording is not appropriately objective, so it
requires modification on that basis. The magistrate judge recommends that the question certified
to the Indiana Supreme Court be formulated as follows:

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The defendants did not bring a separate motion on this matter as required by Local Rule

7.1(a).
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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.
The court notes that if the Indiana Supreme Court decides to accept the question for
decision, it may word it as it chooses. See Green v. Ford Motor Co., 942 N.E.2d 791, 796 (Ind.
2011) (revising and restating certified question).

Conclusion
For the reasons set forth in this entry, the magistrate judge recommends that the court
certify to the Indiana Supreme Court the foregoing question of Indiana law, under Rule 64 of the
Indiana Rules of Appellate Procedure. The Clerk is directed promptly to mail a copy of this
report and recommendation to each party in accordance with Fed.R.Civ.P. 72(a).
Any objections to this report and recommendation must be filed with this court in
accordance with Fed.R.Civ.P. 72 and 28 U.S.C. § 636(b)(1) within 14 days of service. Failure to
object will result in waiver of objection or appeal of the issues addressed in this report and
recommendation.
So ORDERED.
11/18/2011
Date: __________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

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Distribution:
Sara R. Blevins
LEWIS & KAPPES
[e-mail]
Mark Jason Crandley
BARNES & THORNBURG LLP
[e-mail]
Steven Walter Griesemer
LEWIS & KAPPES
[e-mail]
Kirk A. Horn
MANDEL HORN MCGRATH & REYNOLDS, P.C.
[e-mail]
Gary P. Price
LEWIS & KAPPES
[e-mail]

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