ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Douglas M. Grimes Hamilton L. Carmouche
Gary, Indiana Gary, Indiana
Gilbert King
Gary, Indiana
Willie Harris
Gary, Indiana
James B. Meyer
Gary, Indiana
Thomas J. Brunner
South Bend, Indiana
Carl A. Greci
South Bend, Indiana
IN THE
SUPREME COURT OF INDIANA
Charles Hughes and Alex Cherry, )
)
Appellants (Plaintiffs Below ),)
)
v. ) No. 45S00-0011-CV-636
)
CITY OF GARY, et al., )
)
Appellees (Defendants Below ). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis
Cause No. 45D02-0007-CP-0199
January 12, 2001
SHEPARD, Chief Justice.
Two members of the Gary city council appeal a trial court order that
they post a $2.35 million bond or face dismissal of their lawsuit challenging
the approval of funding for a $47 million public improvement project. We
affirm the order to post bond and subsequent dismissal of the lawsuit.
Facts and Procedural History
Plaintiffs Charles Hughes and Alex Cherry are two of nine members of the
Gary Common Council. On June 20, 2000, the Council considered a proposal
that would pledge about one-third of the City’s riverboat casino gaming revenues over
the next four years as security for bonds that will finance part of
certain public improvements, including:
the renovation of the Genesis Center,
See footnote the renovation, construction and equipping of the
former Mercy Hospital as a public safety and police headquarters building, renovation of
parking facilities to service the Genesis Center, the acquisition, construction and equipping of
a professional baseball stadium, and certain environmental remediation and demolition associated with the
City’s efforts to redevelop the City’s waterfront (collectively, the “Project”). . . .
(R. at 37.) The Gary Redevelopment Commission will issue the bonds, totaling
$31 million. The overall estimated project cost is $47 million.
The Council’s agenda for its meeting of June 20, 2000, included the resolution
pledging the gaming proceeds. The Council voted unanimously to defer a vote
on the resolution until the next regular meeting, scheduled for July 5, 2000.
On June 22, 2000, Gary Mayor Scott King called a special meeting of
the Council for June 27
th, for the sole purpose of a final reading
and vote on the resolution. The Council met on June 27th, with
all members present, and passed the resolution by a margin of five to
four. Mayor King signed it on July 3, 2000.
The plaintiffs filed suit on July 19, 2000. On August 16th, the
trial court certified the action as a public lawsuit as defined by Ind.
Code § 34-6-2-124, and it held an interlocutory evidentiary hearing two days later.
At that hearing, the defendants presented evidence that delays caused by the
litigation exposed the City to increased expense and losses due to inflation in
construction industry costs, financing risk, and potential breach of contractual commitments.
On August 28, 2000, the trial court stated, as a conclusion of law,
that the plaintiffs had not presented a substantial question for trial. Under
Ind. Code § 34-13-5-7(c) and (e), it therefore ordered the plaintiffs to post
bond to cover the minimum potential costs of delays caused by the lawsuit,
in the amount of $2.35 million. It further ordered, per the statute,
that the suit be dismissed with prejudice if the plaintiffs failed to post
the bond within ten days.
The plaintiffs did not post bond, and the court dismissed the action on
September 8, 2000. The plaintiffs appealed. Because this matter involves significant
public interest and substantial sums of money, we granted transfer on November 9,
2000, to expedite its resolution.
See footnote
I. Is There a Substantial Question to Be Tried?
It is undisputed that this action involves a public lawsuit under Ind. Code
Ann. 34-13-5 (West 2000). Therefore, the following provisions of Ind. Code §
34-13-5-7 apply:
(a) At any time before the final hearing in a public lawsuit, the defendant
may petition for an order of the court that the cause be dismissed
unless the plaintiff posts a bond with surety to be approved by the
court. The bond must be payable to the defendant for the payment
of all damages and costs that may accrue by reason of the filing
of the lawsuit if the defendant prevails.
(b) A hearing shall be held on a petition described in subsection (a) in
the same manner as the hearing on temporary injunctions under IC 34-26-1.
If, at the hearing, the court determines that the plaintiff cannot establish facts
that would entitle the plaintiff to a temporary injunction, the court shall set
the amount of bond to be filed by the plaintiff in an amount
found by the judge to cover all damages and costs that may accrue
to the defendants by reason of the pendency of the public lawsuit in
the event the defendant prevails.
(c) If the plaintiff does not file a bond with sureties approved by the
court within ten (10) days after the order to do so is entered,
the suit shall be dismissed.
Under this statute, plaintiffs must introduce sufficient evidence that there is a substantial
issue to be tried in order to avoid the bond requirement. Boaz
v. Bartholomew Consol. School Corp., 654 N.E.2d 320, 322-23 (Ind. Tax Ct. 1995)
(citing Johnson v. Tipton Community School Corp., 253 Ind. 460, 464-65, 255 N.E.2d
92, 94 (1970)).
The purpose of the public lawsuit statute and its related bond requirement is
“to protect the public against a ‘flood of harassing litigation’ which obstructs and
delays public improvement at prohibitive costs . . . .” Johnson, 253
Ind. at 464, 255 N.E.2d at 94 (quoting State ex rel. Haberkorn v.
DeKalb Circuit Court, 251 Ind. 283, 288, 241 N.E.2d 62, 65 (1968)).
The statutes:
provide for a vehicle for the citizens and taxpayers of the community to
be represented in a suit that questions the validity of the actions taken
by the local government unit for public construction, but at the same time
provide for a means to limit the delay and frustration of the public
project by those citizens who would bring an action or a series of
actions for the sole purpose of delaying or changing the financing and construction
of the proposed project.
Pepinsky v. Monroe County Council, 461 N.E.2d 128, 132 (Ind. 1984).
Plaintiffs assert that, because they have raised two substantial questions for trial, the
trial court erred in ordering them to post bond. These claims are:
(1) that the resolution is invalid because the June 27, 2000 meeting
was not properly convened, and (2) that the Council improperly delegated its powers
in the resolution.
A. The “Special Order” Ordinance. At its June 20th meeting the Council voted
unanimously to move its next regular meeting from July 4th to July 5th.
It also voted to defer final action on the redevelopment resolution to
the July 5th meeting. The Mayor’s call of a special Council meeting
for June 27th derived from Gary Ordinance 842 § 32.07(A) (“[s]pecial meetings of
the Common Council may be held at the Council Chamber at any time
on call of the Mayor or on call of any three or more
members of the Common Council.”) (See R. at 338.)
Plaintiffs argue that the Council’s deferral of the final resolution vote from June
27th to July 5th converted the matter to a “special order” falling under
Gary Ordinance 842 § 32.24. (Appellants’ Br. at 14.) This ordinance
states: “A matter before the Common Council may be set down as a
special order of business at a time certain only by consent of a
majority vote of all the members-elect of the Common Council.” (See R.
at 339.)
Nothing in the record supports the assertion that the Council did anything other
than put the matter over to its next scheduled meeting as a normal
item of business. The trial court’s factual finding that “[i]n the minutes
of the June 20, 2000 meeting, the vote to defer action on [the
resolution] is not designated as a special order” is accurate. (R. at
197.) Therefore, the court correctly concluded that Mayor King acted within his
statutory authority when he called the June 27th special meeting for a vote
on the resolution, and that a two-thirds Council vote was not required to
take the matter up on that date.
B. The Council’s Delegation of Power. The plaintiffs claim that the resolution is
invalid because the Council failed to allocate the total anticipated $31 million in
bond proceeds among the various components of the redevelopment project. (Appellants’ Br.
at 15.) In their statement of the case, they say
See footnote that the
resolution violates Ind. Code Ann. § 36-4-6-18 (West 2000), which gives a city’s
legislative body the power to “pass ordinances, orders, resolutions, and motions for the
government of the city, the control of the city’s property and finances, and
the appropriation of money.” They assert that the resolution impermissibly “confers arbitrary
power and unregulated discretion on the Commission to appropriate and spend the bond
proceeds.” (Appellants’ Br. at 15.)
In support of their argument on improper delegation, the plaintiffs cite two cases,
but neither is relevant to the issue of whether the Council resolution is
sufficiently detailed. (Appellants’ Br. at 15-16.) They offer no further justification
for their claim that the Council has overstepped its statutory authority. The
plaintiffs therefore raise no substantial question of improper delegation. See footnote
Record Supports the Court’s Findings
The plaintiffs argue that many of the trial court’s findings of fact are
unsupported by evidence of record. We review a trial court’s findings of
fact under a “clearly erroneous” standard and do not reweigh evidence or determine
the credibility of witnesses. Ind. Trial Rule 52; Chidester v. City of
Hobart, 631 N.E.2d 908, 910 (Ind. 1994). We consider the evidence most
favorable to the judgment, with all reasonable inferences drawn in favor of the
judgment. Id. (citations omitted).
Three of the disputed findings basically establish that the Council passed the resolution,
which contained provisions described above, by a five to four margin.
See footnote The
plaintiffs correctly point out that the June 27
th Council meeting minutes contained in
the record only evidence approval of an amendment to the resolution, not approval
of the resolution itself. (Appellants’ Br. at 9, R. at 130-32.)
The record copy of the resolution, however, carries the signature of the presiding
Council officer affirming that the Council passed the resolution on June 27th as
amended. (R. at 37-39.) Furthermore, the plaintiffs themselves conceded in their
verified complaint that “the motion [that the resolution be adopted as amended] was
seconded and passed on a vote of 5 yes votes and 4 no
votes.” (R. at 17.)
Three challenged findings
See footnote relate to the issue of whether the Council’s deferral of
a vote on the resolution constituted a “special order” and, therefore, whether the
June 27
th meeting was properly convened. Another relates to whether the plaintiffs
have met their burden to produce sufficient evidence of a substantial question to
be tried.
See footnote These issues are addressed above and require no further discussion.
Another challenged findingSee footnote is that the plaintiffs’ lawsuit has delayed progress on the
project. At the August 18
th evidentiary hearing, the trial court heard testimony
by an investment banker with experience in public finance. She testified that
the lawsuit was holding up the letter of credit necessary for issuance of
the bonds that will finance the project. This testimony sufficiently supports the
trial court’s finding of fact.
Yet another challenged finding
See footnote is that a delay will increase the significant anticipated
cost of renovating Mercy Hospital. (Appellants’ Br. at 11.) Mayor King
testified at the August 18
th hearing that $15 million would be allocated to
the hospital renovation. A civil engineer with knowledge of the construction industry
in the northwest Indiana and Chicago area testified that the annual rate of
construction cost inflation in that area is five percent. The evidence supports
both this finding and the challenged finding
See footnote that a one-year project delay could
increase the $47 million cost (all of which is for construction, per the
affidavit of Gary Deputy Mayor Suzette Raggs) by $2.35 million. (R. at
85.)
Finally, plaintiffs challenge the findingSee footnote that a delay due to the lawsuit puts
the City at risk of failing to meet certain contractual commitments. This
finding is supported by the testimony of Mayor King, (R. at 444-46), the
testimony of the investment banker, (R. at 406), and an affidavit by Deputy
Mayor Raggs, (R. at 84).
In summary, the trial court’s findings of fact are not clearly erroneous.
Conclusion
We affirm the trial court order requiring the plaintiffs to post bond, and
its subsequent order dismissing this action with prejudice.
Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs with separate opinion, in which Sullivan, J., joins.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DOUGLAS M. GRIMES HAMILTON L. CARMOUCHE
Gary, Indiana Gary, Indiana
GILBERT KING
Gary, Indiana
WILLIE HARRIS
Gary, Indiana
JAMES B. MEYER
Gary, Indiana
THOMAS J. BRUNNER
South Bend, Indiana
CARL A. GRECI
South Bend, Indiana
IN THE
SUPREME COURT OF INDIANA
CHARLES HUGHES and ALEX CHERRY, )
in their official capacity, as duly elected )
members of the City of Gary, Indiana )
Common Council, ) Supreme Court Cause Number
) 45S00-0011-CV-636
Appellants-Plaintiffs, )
)
)
)
v. ) Court of Appeals Cause Number
) 45A03-0010-CV-385
CITY OF GARY, et al., )
)
Appellees-Defendants. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis, Judge
Cause No. 45D02-0007-CP-0199
January 12, 2001
RUCKER, Justice, concurring
In an expedited hearing before the trial court, Gary City Councilmen Charles Hughes
and Alex Cherry (“Councilmen”) raised a number of concerns that they contended presented
substantial questions to be tried. For example they argued that by mandating
that the City of Gary pledge gaming tax revenues to the Mayor, the
resolution violated Ind. Code § 5-1-14-4; that by granting the Mayor the exclusive
right to control all gaming tax revenues to the exclusion of the Gary
City Council, the resolution violated Article 3 Section 1 of the Indiana Constitution;
that because the bonds are not payable solely from and secured by a
lien upon the revenues of the facilities being financed, the resolution violated Ind.
Code § 13-21-8 et seq.; that the resolution is unconstitutionally overbroad because it
prohibits the Gary City Council from taking legislative action to amend or repeal
the resolution; and that the resolution impairs the contract rights of the City
of Gary under certain agreements between Trump Indiana, Inc. and Majestic Star Casino
that provide for the rehabilitation of the Sheraton Hotel and Union Station in
downtown Gary. R. at 353-56.
Without commenting on the strength or validity of these arguments, I note they
have not been presented to this Court on appeal. Instead, the “substantial
question” claim presented here is addressed solely to two contentions: (1) that
the resolution is invalid because the June 27, 2000 meeting was not properly
convened; and, (2) that the Gary City Council improperly delegated to the Mayor
the power to appropriate the bond proceeds “without restriction, or indication in a
discernable manner, the amount of the proceeds to be allocated for each project
or a method of ascertaining a maximum that may be used for each
project, or who shall make the expenditures.” Brief of Appellant at 14-15.
I fully concur with the majority that the record does not support the
proposition that the June 27 meeting was improperly convened. I also agree
that the two cases cited in the Brief of Appellant do not support
Councilmen’s claim that the Gary City Council overstepped its statutory authority.
See footnote
However,
I write separately to explore in greater detail the question of whether Councilmen
presented a substantial question on this latter point.
Relevant case authority does not make clear what is meant by a “substantial
question” in the context of a public lawsuit. The public lawsuit statute
itself requires the posting of a bond where “the court determines that the
plaintiff cannot establish facts that would entitle the plaintiff to a temporary injunction.”
Ind. Code § 34-13-5-7. We have held that in seeking a
temporary injunction a plaintiff is required to present evidence that:
(1) the question to be tried was a substantial one, proper for investigation
by a court of equity. It is not necessary that such a
case should be made out as would entitle appellants to relief on the
final hearing; (2) the status quo should be maintained until the final hearing
or appellants will certainly be injured irreparably before a trial on the merits
can be had; (3) there is no adequate remedy at law; and, (4)
any damages to the appellants may be adequately indemnified by the bond posted
by the plaintiff.
Johnson v. Tipton Comty. Sch. Corp., 253 Ind. 460, 464-65, 255 N.E.2d 92,
94 (1970). However, in a public lawsuit where the plaintiff is not
seeking a temporary injunction, only the first element is applicable. Id.
Unlike Johnson, here the plaintiffs were seeking a temporary injunction. Indeed the
record shows that Councilmen sought temporary as well as permanent injunctive relief.
R. at 24-25. Thus, it appears that not only were Councilmen required
to show the existence of a substantial question, but also the remaining elements
for a temporary injunction as well. Johnson, 253 Ind. at 464, 255
N.E.2d at 94. In any event, the question remains what is meant
by a “substantial question.”
Not since
Johnson has this Court identified the factors necessary for obtaining a
temporary injunction. However, those factors have evolved over the years. As
a result of a long line of cases from the Court of Appeals,
it appears that the propriety of issuing a temporary injunction is now generally
measured by the following: (1) whether plaintiff’s remedy at law is inadequate
thus causing irreparable harm pending the resolution of the substantive action if the
injunction does not issue; (2) whether plaintiff has demonstrated a reasonable likelihood of
success at trial by establishing a prima facie case; (3) whether the threatened
injury to the plaintiff outweighs the threatened harm that the grant of the
injunction may inflict on the defendant; and (4) whether by the grant of
the preliminary injunction the public interest would be disserved. See, e.g., Daugherty
v. Allen, 729 N.E.2d 228, 232-33 (Ind. Ct. App. 2000); Union Twp. Sch.
Corp. v. State ex rel Joyce, 706 N.E.2d 183, 189 (Ind. Ct. App.
1998), trans. denied; Reilly v. Daly, 666 N.E.2d 439, 443 (Ind. Ct. App.
1996); Indiana State Bd. of Pub. Welfare v. Tioga Pines Living Ctr., Inc.,
637 N.E.2d 1306, 1311 (Ind. Ct. App. 1994); College Life Ins. Co. of
Am. v. Austin, 466 N.E.2d 738, 741 (Ind. Ct. App. 1984); Indiana Pacers
L.P. v. Leonard, 436 N.E.2d 315, 318 (Ind. Ct. App. 1982); Rees v.
Panhandle E. Pipe Line Co., 377 N.E.2d 640, 646-48 (Ind. Ct. App. 1978).
Although the requirements for obtaining a temporary injunction as set forth in
Johnson
are stated somewhat differently than those recited above, they still advance the same
general idea: maintaining the status quo until the case can be heard
on the merits. Importantly, the “reasonable likelihood of success at trial” language
parallels the “substantial question” language in Johnson. As Johnson points out “[i]t
is not necessary that such a case should be made out as would
entitle appellants to relief on the final hearing.” Johnson, 253 Ind. at
464, 255 N.E.2d at 94. This is similar to the requirement that
a plaintiff show a reasonable likelihood of success at trial “by establishing a
prima facie case.” See, e.g., Sch. City of Gary v. Cont’l Elec.
Co., 149 Ind. App. 416, 273 N.E.2d 293 (1971) (indicating that to obtain
a temporary injunction, it is necessary only that the pleadings and evidence be
such that they make out a case for proper investigation by a court
of equity and that the status quo will be maintained pending trial).
In this appeal, Councilmen essentially argue that Resolution 2736 is invalid because it
lacks detail concerning (i) the amount of money to be spent on each
of the public works improvements; and (ii) who will be responsible for making
the expenditures. According to Councilmen, these are substantial issues to be tried,
and thus they should not have been required to post bond nor should
their lawsuit have been dismissed. In the context of what now appears
to be the law of this State, it may be stated differently that
Councilmen contend they presented sufficient evidence of a prima facie case and thus
demonstrated a reasonable likelihood of success on the merits at trial. As
explained below, Councilmen have not carried their burden.
Although a legislative body may not delegate its lawmaking authority to another branch
of government, “the power and authority to administer legislative enactments may be and
necessarily are delegated to various boards, bodies and commissions.”
Y.A. by Fleener
v. Bayh, 657 N.E.2d 410, 415 (Ind. Ct. App. 1995). The only
limitation on the delegation of authority is that reasonable standards be established to
guide the entity to which the authority has been delegated. Indiana Dep’t
of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 340 (Ind.
1994). However, those standards need only be “as specific as the circumstances
permit, considering the purpose to be accomplished by the statute.” Id. (quoting
Barco Beverage v. Alcoholic Beverage Comm’n, 595 N.E.2d 250, 254 (Ind. 1992)).
By enacting Resolution 2736,
See footnote
the Gary City Council did not delegate to the
executive branch its lawmaking authority. Rather, the Council delegated its authority to
administer the terms and conditions of the resolution—a legislative enactment. The
Council is invested with this authority and the propriety of so doing is
not subject to judicial scrutiny.
See footnote
See, e.g., Dvorak v. City of Bloomington,
702 N.E.2d 1121, 1125 (Ind. Ct. App. 1998) (holding that a city ordinance
was not unconstitutional simply because the court might consider it born of unwise,
undesirable, or ineffectual policies). The critical inquiry here is whether the resolution contained
reasonable standards specific enough to accomplish the purposes for which the resolution
was enacted.
By its express terms the purpose of Resolution 2736 is to provide a
pledge of gaming revenues to secure payment of bonds for various public works
projects. The General Assembly has expressly authorized the pledge of gaming revenue for
such purposes.
See Ind. Code § 4-33-12-6(d)(3) (providing in part that the
taxes on gaming boat admissions that are paid to a local government “may
be used for any legal or corporate purpose of the unit, including the
pledge of money to bonds, leases, or other obligations . . . .”);
Ind. Code § 4-33-13-6(a)(3) (providing in part that wagering taxes that are paid
to a local government also “may be used for any legal or corporate
purpose of the unit, including the pledge of money to bonds, leases or
other obligations. . . .”). The General Assembly also has expressly authorized
a city’s legislative body to “pass ordinances, orders, resolutions, and motions for the
government of the city, the control of the city’s property and finances, and
the appropriation of money.” Ind. Code § 36-4-6-18.
As Councilmen correctly point out Resolution 2736 contains neither details about the amount
of money to be spent on specific projects nor who will actually spend
the money. However, my research has revealed no authority that such specificity is
required. To the contrary in at least one case, the Court of Appeals
declined to declare an appropriations ordinance invalid even though it failed to define
or itemize the costs for a new city hall.
Blinn v. City
of Marion, 390 N.E.2d 1066, 1072 (Ind. Ct. App. 1979). Here the
resolution contains a great deal of specificity as to how the pledge of
gaming revenues will be accomplished. Nothing more is required.
Based on the contentions Councilmen present in this appeal namely, that Resolution 2736
is invalid because it lacks certain details, Councilmen have not established facts that
would entitle them to a temporary injunction. More specifically they have not
put forth a prima facie case demonstrating a reasonable likelihood of success at
a trial on the merits. Accordingly, the trial court properly required Councilmen
to post a bond and thereafter properly dismissed this action when a bond
was not posted. For the reasons set forth I therefore concur in
the majority opinion.
SULLIVAN, J., concurs.
Footnote:
The Genesis Center is a convention facility in Gary.
Footnote: We granted transfer under Ind. Appellate Rule 4(A)(9), which states:
When an appeal is filed in the office of the clerk, in the
Court of Appeals, appellant or appellee may petition the Supreme Court to transfer
such an appeal to the Supreme Court upon a showing, under oath, that
the appeal involves a substantial question of law of great public importance and
that an emergency exists for speedy determination. The Supreme Court in its
discretion may grant such petition and thereby take jurisdiction of such appeal.
Footnote: These assertions are as follows:
31. The Resolution grants to the Mayor of the City of Gary,
Indiana, the exclusive right and privilege of controlling all gaming tax revenues, to
the exclusion of the Gary Common Council in violation of IC 36-4-6-18.
32. Gaming tax revenue collected by the State of Indiana on behalf of the
City from riverboat facilities licensed to operate in Gary are public funds that
must be appropriated by the Council prior to expenditure. IC 36-4-6-18.
(Appellants’ Br. at 7.)
Footnote: In their reply brief, appellants add an assertion that “[t]he Resolution also
attempts to pledge casino tax revenue as security for revenue bonds in violation
of IC 13-21-8 et seq. in that the bonds are not payable solely
from and secured by a lien upon the revenues of all or part
of the facilities being financed with the revenue bond proceeds.” (Appellants’ Reply
Br. at 3-4.) They make no argument in support of this claim,
which in any event was belatedly raised, so again there is no substantial
question for trial.
Footnote: These specific findings read as follows:
2. On June 27, 2000, the Gary Common Council passed [the resolution], which pledged
approximately one-third of the gaming revenues received by the City of Gary (“City”
or “Gary”) over the next four years as security for bonds which will
partially fund certain public improvements.
3. These public improvements are: (a) the renovation of the Gary Genesis Center
and its parking facilities; (b) the renovation, construction and equipping of the former
Mercy Hospital as a public safety and police headquarters building; (c) the acquisition,
construction and equipping of a professional baseball stadium; and, (d) certain land preparation,
road construction and building demolition work associated with the City’s efforts to redevelop
the City’s waterfront (all collectively referred to as the “Project”).
9. [The resolution] was passed by a five to four margin [].
(R. at 197-98.)
Footnote: These read as follows:
6. In the minutes of the June 20, 2000 meeting, the vote to defer
action on [the resolution] is not designated as a special order.
7. On June 22, 2000, Mayor Scott King called a special meeting of the
Common Council to be held on June 27, 2000, for the purpose of
conducting a final reading and vote on [the resolution]. This action by
the mayor was authorized under both Gary Ordinance 842, and I.C. Sec. 36-4-6-7(b).
8. On June 27, 2000, the Common Council convened with all members of the
Council present. This action was not contrary to Indiana statute, or City
of Gary Ordinance.
(R. at 197.)
Appellants argue that any of the trial court’s findings of fact that are
stated as conclusions of law cannot be considered in reviewing the trial court’s
legal conclusions. (Appellants’ Br. at 13.) We have held, however, that
“where a trial court has made special findings pursuant to a party’s request
under Trial Rule 52(A), the reviewing court may affirm the judgment on any
legal theory supported by the findings.”
Mitchell v. Mitchell, 695 N.E.2d 920,
923 (Ind. 1998). Any debate over the classification of each trial court
finding as one of fact versus law does not, therefore, affect our analysis.
Footnote:
This reads, in part:
11. Plaintiffs have failed to meet their burden under I.C. Sec. 34-13-5,
et seq.,
to produce sufficient evidence to demonstrate the existence of a substantial question that
the actions and procedures set out in the Resolution are contrary to Indiana
Statute, the Indiana State or United States Constitutions or the Separation of Powers
Doctrine as it applies to Indiana cities . . . .
(R. at 198.)
Footnote:
This reads:
10. Two of the four councilpersons that voted against [the resolution] filed this suit
in Lake Superior Court Room II. The existence of this action delays
the bond issuance and blocks the Project.
(R. at 198.)
Footnote: This reads:
12. A substantial part of the bond proceeds will be used to renovate and
remodel the former Mercy Hospital building into a police and public safety facility.
Any delay in this project will increase the costs of this renovation
and remodeling due to increased construction costs as a result of inflation within
the construction market.
(R. at 198.)
Footnote: This reads:
23. All of the estimated $47 million cost of the Project . . .
are for construction costs. In light of a five- percent per annum
increase in construction costs due to inflation within the construction industry, a delay
of one year in the Project will; result in an increase of $2,350,000.00,
to the Project.
(R. at 200.)
Footnote: This reads:
21. The renovation of the Genesis Center is part of a contractual commitment by
Gary to the Continental Basketball Association (“CBA”) that the Center will be renovated
and upgraded to certain standards and capacity so that the new CBA team’s
home games can be played at the Genesis Center. Also, the renovations
to the Center are required of Gary because of its contractual commitments to
the promoters of the Miss U.S.A. Pageant, which will be held in Gary
for the next three years. This lawsuit blocks the Project from proceeding
and risks the City’s failure to meet these contractual commitments.
(R. at 200.)
Footnote:
The cases cited are: Park Hill Dev. Co. v. City of
Evansville, 190 Ind. 432, 130 N.E. 645 (1921) (invalidating a city ordinance regulating
cemeteries because it attempted to confer upon certain city officials the arbitrary power
to approve or disapprove cemetery plats for any reason officials might choose); and
City of Elkhart v. Murray, 165 Ind. 304, 75 N.E. 593 (1905) (voiding
a city ordinance that required street cars to be equipped with particular fenders
because the ordinance was not uniform and was arbitrarily discriminatory).
Footnote:
The terms “resolution” and “ordinance” are frequently used interchangeably, and an
ordinance merely connotes a more formal and solemn declaration. Town of Walkerton
v. New York, Chi. & St. Louis R.R. Co., 215 Ind. 206, 18
N.E.2d 799 (1939). No issue has been raised in this appeal concerning
how these terms are used.
Footnote:
And this is so even though a number of Gary residents
apparently have expressed “outrage” at the proposed expenditure of city revenue for,
among other things, constructing and equipping a professional baseball stadium. R. at
113.