Wednesday, November 13, 2013
Ind. Decisions - Supreme Court (SCOIND) issues a third opinion today
In Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and the Common Council of the City of Logansport, an 11-page, 5-0 opinion in a case which was granted emergency Rule 56(A) transfer, direct from the trial court, and for which oral argument took place on Sept. 5th (the same day as the Rockport argument), Justice Rucker writes:
In this case we address whether Indiana’s Public-Private Agreements statute requires a local legislative body to first adopt the statute before it may issue a request for proposals or begin contract negotiations as provided for under the statute. We hold it does not. * * *Here is a long list of earlier ILB entries on the Kitchell suit.
In this case Kitchell contends that Ordinance 2013-07 is invalid because “the City did not have the authority to pass the ordinance.” Kitchell insists that the Public-Private Agreements Act dictates that before the City could issue an RFP to enter into a public-private agreement, the City was first required to have an ordinance in place empowering itself to enter into such agreements. Noting that the City issued the RFP on November 28, 2012 and the Ordinance was not passed until March 4, 2013, Kitchell argues, “[l]egislation enabling a city to use the statutory Public-Private Agreement Law must come first; any RFPs, negotiations, or legislation must follow.” * * *
[N]owhere does the [Public-Private Agreement] Act require a political subdivision to “adopt” the Act before taking any further action consistent with the Act. A reading of the Act as a whole indicates that it is designed to promote economic development which is executed in way that is transparent and open to public input and scrutiny. The record before us reflects that the City complied with the Act in every particular. Viewing the pleadings in the light most favorable to Kitchell, and with every inference construed in her favor, we conclude that as a matter of law Kitchell is not entitled to relief. Thus the trial court properly granted the City’s motion to dismiss for failure to state a claim upon which relief can be granted. * * *
The City requests an award of appellate attorneys’ fees pursuant to Indiana Appellate Rule 66(E), which provides in part: “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” But the City makes no argument and cites no authority that would support such an award in these circumstances. We thus decline to exercise our authority to award appellate attorneys’ fees.
Posted by Marcia Oddi on November 13, 2013 04:33 PM
Posted to Ind. Sup.Ct. Decisions