STATE OF INDIANA

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COUNTY OF MARION

Indy-Vision Funding I, LLC,

Plaintiff
-vsThe City-Council of Marion County and
Indianapolis, Gregory A. Ballard, in his
Official capacity as Mayor of Indianapolis,
Indiana, and The Consolidated City of
Indianapolis, Indiana
Defendant

IN THE MARION SUPERIOR COURT

CAUSE NO: 49D07-1506-PL-019126

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DEFENDANTS MOTION TO DISMISS

Defendant, the Indianapolis Marion County City-County Council (Council), by
counsel, moves that the Court pursuant to Indiana Trial Rule 12(B)(2) dismiss Plaintiffs Petition
for Relief Pursuant to IC 36-4-4-5 and Request for Declaratory Judgment (Petition) without
prejudice, because the court lacks subject matter jurisdiction to determine the case and grant the
requested relief under Ind. Code 36-4-4-5. In support, Defendant states as follows:
A.

INTRODUCTION
1.

On June 8, 2015, the Council, by a bipartisan vote of 23 to 6, authorized the filing

of a lawsuit challenging the legal validity of the Vision Fleet contract. That same evening,
Plaintiff filed its Petition against (1) the Council, (2) Gregory A. Ballard in his official capacity
as Mayor of Indianapolis, and (3) the Consolidated City of Indianapolis and sought a five-judge
panel to preside over the action pursuant to Ind. Code 36-4-4-5.

2.

On June 11, 2015, the five-judge panel was assigned by the Marion County

Circuit Court Clerks Office.

3.

Ind. Code 36-4-4-5, however, is a special statute. It is reserved for only very

rare and very narrow questions about whether a particular power or duty exercised by a city are
either executive or legislative in nature. Id.
4.

Specifically, Declaratory Judgment actions cannot be heard nor can contracts

declared valid or invalid under Ind. Code 36-4-4-5 by a five-judge panel of the Marion
Superior Court. Additionally, Vision Fleets Petition otherwise only questions whether the
Council has the power to challenge the validity of the Citys contract in court. It does not
question whether that power is either legislative or executive as required by Ind. Code 36-4-45; it questions whether the power to initiate a lawsuit to invalidate a contract executed by the
City and a third-party (a.k.a. standing) exists at all for the Council.
5.

The issues raised in Vision Fleets Petition do not fit under the very rare and very

narrow subject matter jurisdiction conferred by Ind. Code 36-4-4-5. The Petition should
accordingly be dismissed without prejudice and be refiled as the simple Declaratory Judgment
action it is (without a five-judge panel) in accordance with local Marion County trial rules.
B.

LEGAL ANALYSIS
6.

Ind. Code 36-4-4-5 states in its entirety as follows (emphasis added):

(a) If uncertainty exists or a dispute arises concerning the executive or legislative

nature of a power or duty exercised or proposed to be exercised by a branch,
officer, department, or agency of the government of a municipality, a petition may
be filed in the circuit court of the county in which the municipality is located by
the municipal executive, another municipal elected official, the president of the
municipal legislative body, or any person who alleges and establishes to the
satisfaction of the court that the person is or would be adversely affected by the
exercise of the power; however, in a county that does not contain a consolidated
city and that has a superior court with three (3) or more judges, the petition shall

be filed in the superior court and shall be heard and determined by the court
sitting en banc.
(b) In a county containing a consolidated city, the petition shall be heard and
determined by a five (5) member panel of judges from the superior court. The
clerk of the court shall select the judges electronically and randomly. Not more
than three (3) members of the five (5) member panel of judges may be of the same
political party. The first judge selected shall maintain the case file and preside
over the proceedings.
(c) The petition must set forth the action taken or the power proposed to be
exercised, and all facts and circumstances relevant to a determination of the
nature of the power, and must request that the court hear the matter and determine
which branch, officer, department, or agency of the municipality, if any, is
authorized to exercise the power. On the filing of the petition, the clerk of the
court shall issue notice to the municipal executive, each municipal elected
official, and the president of the municipal legislative body, unless the petition
was filed by that person, and to the municipal attorney, department of law, or
legal division.
(d) The court shall determine the matters set forth in the petition and shall affix
the responsibility for the exercise of the power or the performance of the duty,
unless it determines that the power or duty does not exist. Costs of the proceeding
shall be paid by the municipality, except that if an appeal is taken from the
decision of the court by any party to the proceeding other than the municipal
executive, another municipal elected official, or the president of the municipal
legislative body, the costs of the appeal shall be paid by the unsuccessful party on
appeal or in the manner directed by the court deciding the appeal.

7.

Essentially, in any action under Ind. Code 36-4-4-5, the panel of judges is

limited to three and only three possible and mutually exclusive conclusions:
(1)
(2)
(3)

8.

A finding that the power/duty at issue is exclusively executive, as opposed to

legislative, in nature;
A finding that the power/duty at issue is exclusively legislative, as opposed to
executive, in nature; or
A finding that the power/duty at issue does not exist for either the executive or the
legislative branches of local government.
Under no circumstances does a judicial panel created under Ind. Code 36-4-4-5

have the power or jurisdiction to declare a contract valid or invalid.

9.

Count II of the Petition should accordingly be dismissed. The dismissal should be

without prejudice so that the Petition can be refiled and assigned to a single court according to
the Marion Superior Court local rules.
10.

Ind. Code 36-4-4-5 only authorizes a petition and the use of a five-judge panel

in Marion County for a very rare and very specific subset of intra-governmental disputes, namely
when uncertainty exists or a dispute arises concerning the executive or legislative nature of a
power or duty exercised or proposed to be exercised. (emphasis added).
11.

There is no such dispute or uncertainty in the case presented by Vision Fleet. To

the extent any uncertainty as to any powers or duties at issue exists between the Council, the
Mayor and the City it has been entirely contrived by Vision Fleet in an attempt to improperly
place a run-of-the-mill declaratory judgment contract action under the jurisdiction of a fivejudge panel of the Superior Court.
12.

Initially in order to dispel any supposed uncertainty the Council hereby states

that it does not have the power or authority to negotiate with Vision Fleet concerning any
amendment to its fleet management services contract. Nor does it seek to do so. That alleged
dispute never existed.
13.

Additionally, the Council has only voted to authorize a lawsuit to advance its own

independent interests and standing as a body to determine the validity of a city contract that the
Council believes was unlawfully procured, but yet for which the Council has been and will be
called upon to acquire revenue and appropriate funds.
14.

The question of whether the Council as an independent body (or its members in

their individual or official capacities) can independently initiate some as yet unknown and

unfiled civil action declaratory, statutory, equitable, or otherwise to challenge the lawfulness
of the procurement of a city contract is just a routine question of standing.
15.

Standing is a separate threshold of justiciability that the Council must overcome

in any lawsuit that the Council may file based on the separate alternative causes of action the
Council may ultimately raise to challenge the procurement. Snyder v. King, 958 N.E.2d 764, 787
(Ind. 2011).
16.

Depending on the causes of action the Council may raise in its lawsuit, there are

numerous potential bases for the Councils standing to question the procurement in court,
including but certainly not limited to the following:

The Council could qualify as an person aggrieved under Ind. Code 5-22-19-2 so as to
have standing to pursue judicial review of the Vision Fleet contract procurement pursuant
to Ind. Code 5-22.

The Council could have standing under the Public Standing Doctrine recognized in State
ex rel. Cittadine v. Indiana Dep't of Transp., 790 N.E.2d 978, 979 (Ind. 2003) and Embry
v. O'Bannon, 798 N.E.2d 157 (Ind. 2003)

The Council could have standing in a Declaratory Judgment action under Ind. Code 3414-1-2.

The Council or its individual members as taxpayers could have standing under Indiana
Anti-Trust law per Ind. Code 24-1-2-5.

The Council could have standing as the legislative and fiscal body of the Consolidated
City and County.

The Council could also have standing simply as an interested party in law or equity.

17.

Fortunately Vision Fleets litigation tactics are far more transparent than the

procurement of their contract with the City that underlies this entire dispute. Vision Fleet is
attempting to use Ind. Code 36-4-4-5 to boot-strap a blanket, preemptory standing challenge
to any future lawsuit by the Council without regard to any of the separate alternative legal
theories the Council may choose to raise.
18.

In Vision Fleets view of Indiana law and civil procedure, the Council has to first

survive a separate challenge under Ind. Code 36-4-4-5 to prove it has standing to initiate a
lawsuit, and only if it wins that separate lawsuit before a five-judge panel does it have access to
the courts to then file its substantive lawsuit.
19.

It cannot be true that every time a legislative or executive body seeks to

independently assert its interests in court it must first survive a challenge before a five-member
panel of the Superior Court under Ind. Code 36-4-4-5 to determine the legislative or executive
nature of its ability to do so.
20.

A more inefficient and wasteful abuse of judicial resources tying up five

separate Superior Court dockets to determine a simple preliminary issue of standing and a
routine declaratory judgment action is hard to imagine.
21.

By contrast it is important that this court preserve the uniquely narrow scope of

subject matter jurisdiction intended and stated in Ind. Code 36-4-4-5 for only those disputes in
which a characterization of a municipal power as either executive or legislative in nature is
necessary. That question is truly not presented here. Applying Ind. Code 36-4-4-5 to Vision
Fleets Petition will create a precedent that will forever cloud Indiana jurisprudence so as to
invite the creation of five-judge panel under this statute in each and every city government
political dispute across the state.

C.

CONCLUSION
22.

For these reasons, the Council requests that the court dismiss the current Petition

without prejudice and disband the current five-judge panel so that Vision Fleet may
appropriately either file a traditional declaratory judgment action or wait a short period for the
Council to file the lawsuit so authorized on June 8, 2015.
WHEREFORE, Defendant, the Marion County City-County Council, requests that the
Plaintiff takes nothing by way of its Petition, that the Court dismiss Plaintiffs Petition without
prejudice pursuant to Ind. T.R. 12 (B)(2), and for all other just and proper relief in the premises.
DREWRY SIMMONS VORNEHM, LLP

Andrew J. Mallon (#23055-49)

Attorney for Defendants

Drewry Simmons Vornehm, LLP

736 Hanover Place, Suite 200
Carmel, Indiana 46032
(317) 580-4848
(317) 580-4855 (fax)
amallon@DSVlaw.com

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon the following counsel
of record by US Mail this 12th day of June, 2015:
Wayne C. Turner
Michael Limrick
Jonathan Turpin
Hoover Hull Turner, LLP
111 Monument Circle, Suite 4400
P.O. Box 44989
Indianapolis, IN 46244-0989

Andy Seiwert
Office of Corporation Counsel
City-County Building, Suite 1600
200 East Washington Street
Indianapolis, IN 46204

Andrew J. Mallon (#23055-49)

Attorney for Defendants

Drewry Simmons Vornehm, LLP

736 Hanover Place, Suite 200
Carmel, Indiana 46032
(317) 580-4848
(317) 580-4855 (fax)
amallon@DSVlaw.com