The Indiana Court of Appeals has denied the Porter County Council’s appeal
of a Jasper County judge’s ruling in April 2010 that the County Council
cannot legally withdraw from the Northwest Indiana Regional Development
Authority (RDA).
This morning the Court of Appeals upheld Jasper Circuit Court Judge Harry
Potter’s ruling and rejected the County Council’s two main arguments for the
appeal: namely, that Potter erred in his judgment that the original
legislation forbids withdrawal; and that the original legislation is
unconstitutionally “special.”
Withdrawal is
Forbidden
The Court of Appeals notes first in its ruling that both the County Council
and RDA “acknowledge” that the original legislation “is silent about
participant counties’ ability to withdraw from the RDA” but that they each
“draw opposing inferences from this silence.” While the RDA contends that
the General Assembly’s failure to “mention a right to withdraw means there
is no such right,” the County Council “contends that the most notable aspect
of this silence is the lack of prohibition against withdrawal.”
The County Council’s “strongest argument in favor of its interpretation,”
according to the Court of Appeals, is the fact that two subsequent
amendments to the original legislation—enacted in July 2009 and requiring
Porter County to continue paying its $3.5 million annual membership fees
even if it were to withdraw—do address the possibility of the County
Council’s withdrawal from the RDA.
But, the Court of Appeals states, “We are not inclined to view this
legislative response to Porter County’s attempt to withdraw as reflecting
the view of the 114th Indiana General Assembly—the legislative body that
adopted the RDA Act—that Porter County could opt out at its pleasure.
Rather, we conclude the amendments, which it should be noted were passed by
a different legislative body, i.e., the 116th Indiana General
Assembly, were legislative responses to Porter County’s attempt to withdraw
from the RDA, or more specifically, to Porter County’s attempt to escape its
financial obligations under the RDA Act.”
The Court of Appeals also takes note, in its ruling, of the “compelling
nature of the legislature’s concerns in enacting the RDA” and states that
its “goals and purposes” in doing so “were neither trivial nor transitory.”
Thus “the RDA has played a significant role in several major projects in the
region, including the development of the Gary Airport, the Chicago Dash
commuter bus, the Marquette Greenway, and the Portage Lakefront Pavilion and
Park. Taken together, these factors do not evince an intention on the part
of the Indiana General Assembly that Porter County could sever its
membership in the RDA at its pleasure.”
Finally, the Court of Appeals cites the fact of the General Assembly’s
creation of a statutory framework for the establishment of other development
authorities in other regions of the state, in which framework a five-year
minimum participation period was mandated for counties and cities electing
to join a given development authority. “These provisions reflect that when
the General Assembly wishes to authorize withdrawal from a local development
authority, it has demonstrated the ability and wherewithal to do so,” the
Court of Appeals states.
Not
Unconstitutionally Special
The Court of Appeals begins its ruling on constitutionality with this
observation: that the County Council did not in fact challenge the
constitutionality of the original authority legislation but rather the
constitutionality of the subsequent amendments requiring Porter County to
pay its RDA fees even if it were to withdraw.
“Clearly, a challenge to the constitutionality of the original RDA Act
represents a fundamentally different question than a challenge to the
aforementioned amendments, albeit on the same grounds, i.e., that they are
forbidden special legislation,” the Court of Appeals states. “The former
rests upon the claim that the RDA Act impermissibly targeted Porter County
to join the RDA, while the latter rests upon the claim that the amendments
to the RDA Act impermissibly compelled Porter County to pay funds to be
administered by a group of which it was not a member.”
The problem for the County Council is this, the Court of Appeals ruled: it
could have challenged the constitutionality of the original authorizing
legislation in Potter’s court but did not, choosing instead to make the
constitutional argument in its appeal.
“‘Challenges to the constitutionality of a civil statute may be waived if
they could have been raised to the trial court but were not,’” the Court of
Appeals states, citing a prior case and then promptly waiving the County
Council’s challenge.
For its part the County Council had argued that the constitutionality of the
original authorizing legislation did not become a legal issue until after
Potter made his ruling.