January 12, 2015
DAVID ANDERSON, COMMISSIONER, JOE WRAY, COMMISSIONER, JOHN KENNARD, COMMISSIONER, and BOARD OF TRUSTEES, BROWN COUNTY FIRE PROTECTION DISTRICT, Appellants-Defendants
SUSANNE GAUDIN, JANET KRAMER, and RUTH REICHMANN, Appellees-Plaintiffs
APPEAL FROM THE BROWN CIRCUIT COURT. The Honorable Kathleen Tighe Coriden, Special Judge. Cause No. 07C01-1108-PL-0364.
FOR APPELLANT: KURT A. YOUNG Anderson, Wray, and Kennard Nashville, Indiana.
FOR APPELLANT: WANDA E. JONES, Jones Law Offices, Nashville, Indiana.
FOR APPELLEE: E. PAIGE FREITAG, Jones, McGlasson & Freitag, P.C., Bloomington, Indiana; WILLIAM C. LLOYD, Lloyd Law, L.L.C., Bloomington, Indiana.
VAIDIK, Chief Judge. FRIEDLANDER, J., and MAY, J., concur. VAIDIK, Chief Judge.
VAIDIK, Chief Judge
In 2007 the Brown County Commissioners enacted an ordinance establishing a county-wide fire-protection district. In 2011 the Commissioners amended the ordinance, reducing dramatically the scope of the ordinance and the powers granted to the Board of Trustees. County-resident freeholders first filed suit for declaratory judgment, and then the Commissioners and the freeholders filed cross motions for summary judgment, asking the trial court to determine whether the amended ordinance was a valid exercise of the Commissioners' authority. The trial court granted summary judgment in favor of the freeholders, finding that the amendment was a de facto dissolution of the ordinance, in contravention of the Fire District Act and this Court's opinion in Gaudin v. Austin, 921 N.E.2d 895 (Ind.Ct.App. 2010). On appeal, the Commissioners contend that the amended ordinance was a valid exercise of their authority. We affirm the trial court, finding that the " amendment" made to the ordinance amounted to a de facto dissolution, and that the Commissioners did not have the authority to amend the ordinance at all.
Facts and Procedural History
In 2007 the then-governing Brown County Board of Commissioners (" the Commissioners" ) enacted County Ordinance
No. 09-04-07-01 (" the Ordinance" ), which created the Brown County Fire Protection District (" BCFPD" or " the District" ), a municipal corporation created to provide comprehensive fire-protection and fire-prevention services throughout Brown County. Pursuant to the Ordinance, the BCFPD included all four of the townships in Brown County--Hamblen, Jackson, Van Buren, and Washington--but excluded the town of Nashville. The Ordinance states in relevant part as follows:
This ordinance does hereby establish a fire protection district for the following purposes:
(1) Fire protection, including the capability for extinguishing all fires that might be reasonably expected because of the types of improvements, personal property, and real property within the boundaries of the district.
(2) Fire prevention, including identification and elimination of all potential and actual sources of fire hazard.
(3) Other purposes or functions related to fire protection and fire prevention.
(A) These purposes and functions are to effectively have jurisdiction and govern fire services throughout the District, and shall include educational initiatives and efforts within the community for fire and hazard recognition and prevention, volunteer recruitment, proper training and working conditions for the safety of volunteers, and expeditiously establishing, implementing, supervising, and having full and proper accountability as to all applicable safety and operational standards and expectations.
(B) Responsive and best effort services, with planning and due diligence coordination, are to be provided throughout the District.
(C) The area selected for this Fire Protection District shall include all of the following: Hamblen, Jackson, Van Buren, and Washington townships . . . . and excluding only the Town of Nashville . . . .
(4) Other emergency services.
Appellant's App. p. 139-40.
The Ordinance incorporated many sections of the Fire District Act found at Indiana Code chapter 36-8-11, including the appointment of a five-member board of fire trustees, trustee's meetings, trustee's powers and duties, tax levies, and the purchase of firefighting equipment. Paragraph G(a)(1) of the Ordinance provides that the board of trustees " has the same powers and duties as a township executive . . . with respect to fire protection functions . . . ." Id. at 142. Paragraph G(a)(4) provides that the trustees " shall exercise general supervision of and make regulations for the administration of the district's affairs. This shall include establishing the authority and protocols for Incident Command." Id. And paragraph G(a)(17) authorizes trustees to " levy taxes at a uniform rate on the real and personal property within the district," subject to certain limitations and special accounting procedures and administration. Id. at 143.
The Ordinance has been the subject of two previous cases: Sanders v. Bd. of
Comm'rs, 892 N.E.2d 1249 (Ind.Ct.App. 2008), trans. denied, and Gaudin, 921 N.E.2d 895. In Sanders, several freeholders filed an action against the Commissioners, requesting declaratory judgment that the Ordinance was void because the Commissioners lacked the statutory authority to create a fire-protection district. See Sanders, 892 N.E.2d at 1250. This Court affirmed the trial court, holding that the Commissioners did have the authority to create the district pursuant to Indiana Code section 36-8-11-4.
Thereafter, in January 2009, the Commissioners attempted to dissolve the fire district, which led to another legal challenge by county-resident freeholders. In Gaudin, freeholders challenged the Commissioners' attempt to dissolve the fire-protection district, and this Court reversed the trial court's grant of summary judgment for the Commissioners, holding that while the Fire District Act explicitly provides in two discrete sections for establishment of a district either by ordinance or by freeholder petition, the Act sets forth only one method of dissolution--the freeholder-petition process described in Indiana Code section 36-8-11-24--and thus the Commissioners lacked authority to unilaterally dissolve the district. See Gaudin, 921 N.E.2d at 897-900; see also Ind. Code § 36-8-11-24 (" (a) Proceedings to dissolve a fire protection district may be instituted by the filing of a petition with the county legislative body that formed the district. . . . (b) The petition must be signed: (1) by at least twenty percent (20%), with a minimum of five hundred (500), of the freeholders owning land within the district; or (2) by a majority of those freeholders owning land within the district; whichever is less." ).
After Gaudin, in March 2011, the Commissioners amended the Ordinance. The Amended Ordinance provided in part:
WHEREAS, in September 2007, the Board of Commissioners of Brown County, Indiana, adopted Ordinance Number 09-04-07-01;
* * * *
WHEREAS, the Board of Commissioners has reviewed, studied and considered said Ordinance;
WHEREAS, as a result of such review, study and consideration, the Board of Commissioners has concluded that parts of the area included in the district by said ordinance, particularly Hamblen Township, which has an existing fire protection district, were included in error and, as a result, the district board of trustees was improperly constituted;
WHEREAS, as a result of such review, study and consideration, the Board of Commissioners has concluded that all of the purposes for which the district was established are unnecessary, because those purposes are currently being served by other more cost-effective means;
* * * *
BE IT THEREFORE RESOLVED that [the Ordinance] is amended to read as follows:
1. This ordinance does hereby reaffirm the establishment of the [BCFPD] . . . includ[ing] Jackson, VanBuren and Washington townships . . . .
2. Pursuant to IC 36-8-11-4(a)(3), the sole purpose of the [BCFPD] shall be to conduct fire prevention education within the District. . . .
* * * *
19. Upon this Ordinance as amended taking effect, all provisions of the initial pre-amendment Brown County Ordinance Number 09-04-07-01 are of no force and effect.
Appellant's App. p. 148, 155.
Thus, the Amended Ordinance dramatically reduced the overall purpose(s) of the District: from providing fire-protection and fire-prevention services to providing nothing more than " fire[-]prevention education within the District." Id. at 155 (emphasis added). The Amended Ordinance also changed the composition of the board of trustees from five members--including a Hamblen Township representative and an " at large" member--to three members representing the three townships " actually served by the District" and outlined a procedure for appointing the new three-person board. Id. at 149. Moreover, the Amended Ordinance removed the special accounting procedures, restricted the District to levying taxes on only real property (and not personal property, as permitted in the Ordinance), and provided that " [t]he District shall seek funding through non-tax sources, such as grants and donations, to fund its activities so as to minimize or eliminate any tax impact on Brown County property owners." Id.
In August 2011 Brown County residents and property owners (" the Freeholders" ) filed a suit for declaratory judgment against the Commissioners and the Board of Trustees, seeking to set aside the amendment to the Ordinance. After mediation in September 2013, the parties agreed upon a stipulated question to be resolved by cross-motions for summary judgment presented to the trial court: " Is the amended ordinance 09-04-07-01, a valid exercise of the authority of the Brown County Commissioners?" Id. at 37. In March 2014 the trial court granted summary judgment in favor of the Freeholders. The trial court's order provided in relevant part:
A. A history of events leading to the narrow issue before the court is helpful:
* * * *
3. Th[e Sanders, 915 N.E.2d 978] decision led opponents of the Fire District to run for office and, once elected, the majority of the [C]ommissioners voted to dissolve the Fire District. This action was challenged by other Brown County freeholders with the trial court ruling the [C]ommissioners were acting within their authority in dissolving the Fire District. However, the Court of Appeals concluded the [C]ommissioners' action was void as being contrary to the statute [Indiana Code section 36-8-11-24] . . . . See Gaudin , 921 N.E.2d 895 . . . . The result was the Fire District remained as established by the 2007 ordinance.
4. Having been thwarted in their efforts to dissolve the Fire District the Commissioners then embarked upon a course of action to essentially " gut" the Fire District of its powers by passage of an amendment on March 3, 2011 . . . .
* * * *
L. The court finds the Commissioners['] unilateral actions in gutting the Fire District ordinance, except for the sole purpose of conducting " fire prevention education within the District" was an obvious " end-run" around the Gaudin ruling to obtain the result the Commissioners intended without determining the wishes of the freeholders within their district.
M. Any Brown County freeholder has the right, per statute, to institute a petition to dissolve the Fire District. This procedure is available to the [C]ommissioners as well. Just as the Commissioners
are not permitted to dissolve the Fire District except as set forth by statute neither are they permitted to exercise authority, once that authority has been granted to another entity, here the Fire District. . . .
Id. at 7-10 (formatting altered).
The Commissioners now appeal the trial court's order.
Discussion and Decision
When we review the grant or denial of summary judgment, we use the same standard as the trial court. Gaudin, 921 N.E.2d at 896. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Where the issue presented on appeal is a pure question of law, we review the matter de novo. Id. The interpretation of a statute presents a pure question of law for which summary judgment is particularly appropriate. Id.
The goal of statutory construction is to determine, give effect to, and implement the intent of the General Assembly. Id. We presume the legislature intended the language used in a statute to be applied logically and not to bring about an unjust or absurd result. Id. Statutes relating to the same general subject matter are in pari materia and should be construed together so as to produce a harmonious statutory scheme. Id. To determine legislative intent, we read the sections of an act together so that no part is rendered meaningless if it can be harmonized with the remainder of the statute. Id. If two statutes or two sets of statutes appear inconsistent in some respects, but can be rationalized to give effect to both, then we are obliged to do so. Id. at 896-97.
On appeal, the Commissioners argue that the amendment of the Ordinance is permitted under Indiana's Home Rule Act, set forth in Indiana Code chapter 36-1-3. According to Section 36-1-3-1, Home Rule applies to all " units," and " unit" means county, municipality, or township. See Ind. Code § 36-1-3-1, Ind. Code § 36-1-2-23. Thus, Home Rule applies to the Commissioners. Section 36-1-3-3 provides:
(a) The rule of law that any doubt as to the existence of a power of a unit shall be resolved against its existence is abrogated.
(b) Any doubt as to the existence of a power of a unit shall be resolved in favor of its existence. . . .
Ind. Code § 36-1-3-3 (emphasis added). But there are limitations to this power: Section 36-1-3-5(a)(2) provides: " [A] unit may exercise any power it has to the extent that the power . . . is not expressly granted to another entity. . . ." And according to Section 36-1-3-8(a)(3): " [A] unit does not have . . . [t]he power to impose duties on another political subdivision, except as expressly granted by statute."
Fire Protection Districts are governed by Indiana Code chapter 36-8-11 (" the Fire District Act" or " the Act" ). A fire-protection district is a " municipal corporation" and therefore a " political subdivision." Ind. Code § 36-1-2-10, Ind. Code § 36-1-2-13 (" 'Political subdivision' means municipal corporation or special taxing district." ) & Ind. Code § 36-8-11-16. The Fire District Act provides two different means of establishing a fire-protection district: by ordinance--as was done in this case--or by freeholder petition. Ind. Code § § 36-8-11-4, -5; see also Sanders, 892 N.E.2d at 1254. However, the Fire District Act provides only one method for dissolution, outlined in Indiana Code section 36-8-11-24:
(a) Proceedings to dissolve a fire protection district may be instituted by the
filing of a petition with the county legislative body that formed the district. . . .
(b) The petition must be signed:
(1) by at least twenty percent (20%), with a minimum of five hundred (500), of the freeholders owning land within the district; or
(2) by a majority of those freeholders owning land within the district; whichever is less.
Ind. Code § 36-8-11-24.
Returning now to the Commissioners' amendment to the Ordinance, we observe that as a general matter, the Amended Ordinance eliminated virtually every purpose for which the Ordinance was originally created, stating in the preamble: " the Board of Commissioners has concluded that all of the purposes for which the district was established are unnecessary . . . ." Appellant's App. p. 148. Whereas the Ordinance was created for the broad purposes of fire protection and prevention, conferring on the Board of Trustees the " same powers and duties as a township executive . . . with respect to fire protection functions . . . .," id. at 142, and permitting the Trustees to " exercise general supervision of and make regulations for the administration of the district's affairs[,]" id., the Amended Ordinance provided that " the sole purpose of the District shall be to conduct fire prevention education within the District." Id. at 148 (emphasis added). The Amended Ordinance also provided that " [t]he District shall seek funding through non-tax sources, such as grants and donations, to fund its activities so as to minimize or eliminate any tax impact on Brown County property owners." Id. at 149. In other words, we agree with the trial court's characterization of the Commissioners' treatment of the Ordinance: they " gut[ted]" it. Id. at 10. Thus, the inescapable conclusion is that the " amendment" the Commissioners made to the Ordinance was so extreme and far-reaching as to amount to a de facto dissolution of the Ordinance, in contravention of both Section 36-8-11-24 and Gaudin, 921 N.E.2d 895.
Having determined that the Amended Ordinance was not a valid exercise of the authority of the Commissioners because it amounted to a de facto dissolution, we now address the question of whether the Commissioners had the authority to amend the Ordinance at all. Because there is no mention in the Fire District Act of any procedure for amending an ordinance establishing a fire-protection district, the Commissioners argue that Home Rule supports their position. See Appellant's Br. p. 13. In particular, they assert that " [a]ny doubt as to the existence of [the] power of [the County to amend the Fire District Ordinance] shall be resolved in favor of its existence." See id. at 15 (citing I.C. § 36-1-3-3(b), which actually provides: " [A]ny doubt as to the existence of a power of a unit shall be resolved in favor of its existence." ). They also cite Section 36-1-3-4(b)(2), which provides: " A unit has . . . all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute." And they put forth Section 36-1-3-5(a)(2), which provides: " a unit may exercise any power it has to the extent that the power . . . is not expressly granted to another entity."
But as to that last statute, the Freeholders argue that the Commissioners did grant the power to another entity: once the Commissioners established the District, it became a " separate and independent entity" ; therefore, the Freeholders' argument continues, " the Commissioners' authority over the District ceased upon its establishment, except to the extent that the Fire District Act allows." Appellee's
Br. p. 9, 10 (" [B]y establishing the district, which then became a separate entity, the Commissioners necessarily and expressly granted to the Board of Trustees all of the powers and authority enumerated in the original ordinance." ).
The trial court agreed. In granting summary judgment in favor of the Freeholders, the trial court wrote: " By passage of the 2007 ordinance establishing the Fire District the Commissioners granted the authority to the Fire District to undertake the statutory purposes outlined in both the Indiana Statute and the ordinance itself." Appellant's App. p. 9. Accordingly, once the Commissioners--as a " unit" --granted this authority to the District, they " relinquished the power to exercise control over those functions set forth in the Ordinance." Id.; see also I.C. § 36-1-3-5(a)(2) (" [A] unit may exercise any power it has to the extent that the power . . . is not expressly granted to another entity." ). As stated in the trial court's order: " Nothing within Indiana Code [chapter] 36-8-11 suggests the 'unit' retains any authority over the Fire District, once established." Appellant's App. p. 9. We agree.
We find that in creating the District, which then became a separate entity (or
political subdivision) with the Trustees at the helm, the Commissioners did expressly grant to the District and the Trustees the powers and authority enumerated in the Ordinance. See I.C. § 36-1-3-5(a)(2); see also Appellee's Br. p. 10. They therefore relinquished the power to amend the Ordinance. Accordingly, we affirm the trial court.
FRIEDLANDER, J., and MAY, J., concur.