A Tale of Two Appeals

gavelYesterday Charlestown buzzed over the Indiana Court of Appeals’ decision regarding the preliminary injunction issued against the City by Judge Jason Mount. When both the defendants and plaintiffs in a case claim victory after a decision, who are we to believe? I prefer to let the order speak for itself.

The three-judge panel was tasked with considering two different appeals.

  1. The City asked the appellate court to review Judge Mount’s findings that
    • they incorrectly enforced their own Property Maintenance Code (PMC),
    • they violated the Equal Protection Clause of the U.S. Constitution, and
    • they violated the Privileges and Immunities Clause of the Indiana Constitution.
  2. The Neighborhood asked the appellate court to review Judge Mount’s findings that the city did not violate the Indiana Unsafe Building Law (UBL).

Collectively the two different appeals asked the panel to review all of the rulings made by Judge Mount.

In the end, the panel overturned Judge Mount’s preliminary injunction, but only based on the appeal of the Neighborhood, and only, some would say, temporarily.  

What does this mean? The Neighborhood argued that the wording of Indiana’s Unsafe Building Law “establishes that the City is required to follow the UBL” since they agreed to do so in a council decision in 2001. The three judges agree with the Neighborhood (Appeal Order p 11). Because they agree that the City is bound to the Unsafe Building Law, they have ordered the case back to Judge Mount for him to re-write his original preliminary injunction. This gives Judge Mount the ability to issue the injunction on all four of the claims made against the City by the Neighborhood rather than on just the three he used in the first injunction. (For sports fans, that’s a 4-0 victory instead of a 3-1.)

Is this a win for the Neighborhood? Yes. With the granting of their appeal, the Neighborhood now has an even stronger case than before. The City claims that the Indiana Home Rule Act gives them the right to develop and enforce their own Property Maintenance Code.

Remember that one? It was revised right after Judge Mount ruled against the City early this year. You can refresh your memory HERE

In any other case the City’s invocation of the Home Rule Act might work, but not this time. When the City, during Bob Hall’s first term as Mayor, adopted the Indiana Unsafe Building Law in 2001, they agreed to the parameters that it establishes. The UBL allows cities to establish many of their own standards for safety and health, but it controls the way in which fines and penalties are applied in cases of non-compliance.

Specifically, it

  • tells a City how they have to notify someone that their home is in non-compliance,
  • allows for a timely appeal of the notice,
  • allows a grace period in which the owners can remedy the problems and avoid fines and penalties, and
  • places caps on the amount of penalties and the frequency with which they can accrue if assigned.

These are all rules that are not followed in the City’s Property Maintenance Code and were not followed in the issuing of fines in Pleasant Ridge. The City argued that it is not required to follow the rules of the Unsafe Building Law but has the right to choose between the UBL and their own Property Maintenance Code at their leisure. The judges disagreed. All three of them. (Appeal Order p 16).

So what’s next? The appellate ruling will be certified after 30 days if neither the City or the Neighborhood challenge the decision. Following that, the case goes back into the hands of Special Judge Jason Mount who has been ordered by the higher court to reconsider his injunction based on the fact that the City DID violate the Unsafe Building Law.

In the meantime…the City is spinning. This morning a notice appeared on the window at City Hall announcing a special meeting of the Common Council for tomorrow, Wednesday the 12th. The topic of this meeting is the Unsafe Building Law. Although Citizens have not been adequately informed about the purpose and intent of this meeting, it’s a safe bet that Mayor Hall will likely ask the Council to do away with the law. Just as he re-wrote the Property Maintenance Code earlier this year to cover the mistakes noted by Judge Mount (see the link above), he will probably act in haste to take the City out of the control of the Unsafe Building Law in an effort to continue his attack on homeowners in Pleasant Ridge. This is not a decision that should be taken lightly. It is one that should be considered carefully, not made in haste in less than 48 hours since a judgement was issued.

We all want our City to have safe houses. But we should also all want our elected officials to act with integrity and compassion in their oversight of our safety.

In less than 24 hours we will know what Mayor Hall’s next move is. Here’s hoping it is one of honor.

You can read the entire order for yourself here: Appeal Order 09/10/2018

Author: Treva Hodges

Resident of Charlestown, Indiana. Advocate.

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