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Bloomington requests “magic language” from the judge in order to appeal the adverse annexation verdict



Bloomington, Indiana – Judge Nathan Nikirk’s decision from mid-June, which determined that a 2019 state statute regarding annexation remonstrance waivers was not unconstitutional despite the city’s argument, is something that Bloomington plans to fight.

The city of Bloomington filed a motion last Tuesday, July 2, requesting that Nikirk take one of two actions.

The city is requesting that Nikirk either certify the city’s application for an interlocutory appeal or make it clear that his decision on the constitutional question was final and appealable. A ruling on an appeal filed prior to the conclusion of the trial is known as an interlocutory appeal.

The gist of the technical motion is that Bloomington intends to challenge Nikirk’s decision in some capacity.

The Monroe County government was shut down for a week due to a hack, which is probably why the city’s motion did not appear to be uploaded to the online docket until Monday, July 8.
The city’s move is justified by the fact that, in addition to the constitutional matter Nikirk decided, there are still unresolved questions in the litigation.

The unresolved matters concern whether the Monroe County auditor counted any remonstrance petitions that were deemed deficient and so should not have been counted.

The lawsuits pertaining to Area 3, Area 4, Area 5, Area 1C, and Area 2 all highlighted the same problem regarding potentially flawed petitions. The five territories in which the city filed litigation were combined into one cause.

By requesting on July 2, Bloomington is essentially asking Nikirk to include what the Indiana Supreme Court has referred to as “magic language” in his mid-June ruling so that it would be regarded as a final decision, to which the city would be entitled to appeal.

Bloomington requests that if Nikirk fails to comply, the city may request that an interlocutory appeal be heard by the court of appeals prior to a final decision being made.

An interlocutory appeal differs from an appeal of a final verdict in that it is not subject to the court of appeals’ acceptance of jurisdiction.

The “magic language” would come from a couple of trial rules, one of which is Trial Rule 54(C), which reads in part (emphasis added): “A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties.”

The mid-June order from Nikirk acknowledges that his decision does not resolve one of the difficulties, but it omits the precise wording—also known as the “magic language”—that states there is “no just reason for delay.”

Nikirk’s decision from mid-June about the constitutional challenge was related to annexation ordinances that Bloomington’s city council passed in the fall of 2021.

Protesters in five of the seven regions that Bloomington sought to annex had collected enough signatures by the third week of February 2022—from over 65 percent of landowners—to prevent Bloomington from moving forward with its annexation plan.

However, the 2019 law—which has an impact on the status of the waivers of the right to remonstrate—which were executed by numerous property owners in return for a city sewer connection—was vital to the signatures.

According to the 2019 law, these waivers of the right to remonstrate are only valid for a period of 15 years. A property owner may sign a petition for remonstrance at any time after 15 years.
Bloomington filed its cases on the grounds that the 2019 law violates both the U.S. Constitution and the contracts provision of the state constitution of Indiana.

Many of the protestors’ signatures would not have been valid if the 2019 law had not been passed. Actually, none of the five regions would have gotten legitimate remonstrance signatures from more than 65 percent of landowners in the absence of the 2019 law.

A bench trial was conducted in early May about two additional locations (Area 1A and Area 1B) unrelated to Bloomington’s move on July 2. One could anticipate a decision about the validity of annexing those areas in August.