Chesterton Tribune

Court rejects Porter County RDA appeal

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By KEVIN NEVERS

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.

 

 

Posted 3/2/2011