Sunday, January 22, 2012

The Tri-Partisan lawsuit - part 2

In a prior post, I introduced a discussion about how 3 Fishers residents, a Republican, a Democrat, and a Libertarian, filed a Federal Court lawsuit against the "hybrid" city proposal but forth by the former members of the Fishers Town Council (3 new members were elected in November).  That lawsuit challenges the legality and constitutionality of the "hybrid" proposal as obstructing and attempting to trump the rights of Fishers' citizens for voting for a Mayor and council of a real City organized as other Indiana cities are organized.  The Federal Court has now certified the state law questions to the Indiana Supreme Court, and oral argument is set in the Supreme Court this coming Thursday, January 26th.

The parties have now filed their briefs with the Supreme Court, and there is some real interesting reading in them.  Let me summarize some of the points made in the briefs:

THE CITIZEN'S ARGUMENTS:

  • Since the Reorganization Plan (the official document creating the "hybrid" proposal) calls for NO election for a Mayor by the citizens, and NO election of the first "City" council, that it violates both Indiana law and the state Constitution.  The Reorganization Plan makes the Town Council 7 of the 9 members of the new "hybrid" council, and appoints (not elects) the Fall Creek Township Trustee as the 8th member and allows the President of the Fall Creek Township Board, the President of the Fishers Town Council, and the President of the Hamilton County Commissioners to appoint the ninth member.  There is NO election by the voters until 2015, at least. 
  • That the Reorganization Act does NOT provide for creation of new forms of government, but does allow governmental bodies to reorganize into an already-accepted form.   This means any merger into a City would have a Mayor elected by citizens and a Council elected with real districts as all other second-class cities in Indiana.
  • That the Reorganization Act does not allow for elimination of citizen's rights to vote for a Mayor or city council.  
  • That the Reorganization Plan cannot trump the Indiana Constitution and Indiana laws, and believe it or not, it says it DOES, rather like Mr. Faultless et al. wanted to set up their own independent country.
Not surprisingly, the brief filed by Fishers takes a much different tune.

FISHERS' ARGUMENTS:
  • That the Reorganization Act "authorizes previously unheard of local government arrangements and allows the voters to decide what is best for them".
  • That the Reorganization Act is an act of home rule which would allow all local governments to reorganize into any form of government at all, subject only to voter approval.
  • In footnote 5 of Fishers' brief, they state:  "In the event that the citizens of Fishers approve both referendum (sic) and the citizens of Fall Creek Township approve the plan, Fishers would become a reorganized city", in other words, the hybrid wins.  
MY CONCLUSIONS:

Fishers never argues, as some have, that the "hybrid" (which is nothing of the sort) was not intended to block the referendum to change to a traditional City.  Indeed, they simply ignore it and play a game of "gotcha", claiming that they can literally do whatever they want under the Reorganization Act.  This is almost exactly what Scott Faultless told me at the outset of the reorganization study process when I said their interpretation would allow for formation of a monarchy, a dictatorship, or any other absurd result, and he agreed and shrugged it off.  

However, in a later discussion with State Senator Beverly Gard, she told me that the General Assembly intended nothing of the sort, but intended that merging or reorganizing bodies end up as a currently recognized form, such as a city.  Otherwise, two or more townships for example could create their own county, or dukedom, or whatever.  It sounds absurd, and it is, but that is exactly where the Fishers' version leads us.  

The Fishers version not only leads to something not intended by the legislature, but to something which CANNOT BE CHANGED.  And Mr. Faultless has said so, as there is nothing in State law, or the Reorganization Plan, which would allow for voters to change it, EVER.  

The ""hybrid" is structurally identical to the current "town" form of government.  All that is really changed is the number of council members and the name.  So the dual referenda, by Fishers' own argument, give three out of four chances to keep the current version of government that many want to change to something more democratic.  Instead, by playing "fool the voter", they are trying to lock their self-interested structure that the citizens can never try to change, ever again.  

"Fool the voters" indeed.  Shame on Scott Faultless and all the others who were a party to this sham.  I hope the Courts and the voters of Fishers see through this blatant fraud.