State Ex Rel. Cittadine v. Indiana Department of Transportation

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEYS FOR APPELLEE

Nancy A. McCaslin INDIANA DEPT. OF MICHIGAN SOUTHERN

RAILROAD

McCaslin & McCaslin TRANSPORTATION COMPANY

Elkhart, Indiana Steve Carter William G. Lavery

Attorney General Ian J. Forte

Whisler & Lavery

Janet L. Parsanko Elkhart, Indiana

Deputy Attorney General

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

STATE OF INDIANA ON THE ) Supreme Court No.

RELATION OF JACK P. CITTADINE, ) 20S03-0306-CV-260

Petitioner/Appellant, )

Relator Below )

) Court of Appeals No.

v. ) 20A03-0010-CV-395

)

INDIANA DEPARTMENT OF )

TRANSPORTATION, )

Respondent/Appellee, )

Respondent Below )

)

MICHIGAN SOUTHERN RAILROAD )

COMPANY, et. al., )

Respondent/Appellees, )

Intervenors Below )

________________________________________________

APPEAL FROM THE ELKHART SUPERIOR COURT

The Honorable L. Benjamin Pfaff, Judge

Cause No. 20D01-0008-CP-00547

________________________________________________

On Petition To Transfer

June 24, 2003

DICKSON, Justice

The relator-appellant Jack Cittadine appeals from the trial court's

denial of his petition for an emergency and permanent writ of mandamus to

require the Indiana Department of Transportation ("INDOT") to enforce

Indiana's Clear View Statute[1] against Michigan Southern Railroad

("Michigan Southern") and any other railroad in violation of the

statute.[2] The Court of Appeals affirmed, finding that Cittadine lacked

standing to bring this action. Cittadine v. Indiana Dept. of Transp., 750

N.E.2d 893, 896 (Ind. Ct. App. 2001). We grant transfer to acknowledge the

availability of the public standing doctrine in Indiana courts.

Our standing requirement is a matter of Indiana jurisprudence. The

judicial doctrine of standing is intended to assure that litigation will be

actively and vigorously contested. Schloss v. City of Indianapolis, 553

N.E.2d 1204, 1206 (Ind. 1990). It focuses on whether the complaining party

is the proper person to invoke the court's power. Id. Unlike the language

of Article III, Section 2 of the United States Constitution, the Indiana

Constitution contains no "case or controversy" requirement. We have

observed that an analogous function is fulfilled by the distribution of

powers

provision in Article 3, Section 1, of the Indiana Constitution.[3] See

Dept. of Environmental Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331

(Ind. 1994). While noting this source of judicial restraint, however, we

stated: "While this Court respects the separation of powers, we do not

permit excessive formalism to prevent necessary judicial involvement.

Where an actual controversy exists we will not shirk our duty to resolve

it." Id. at 337.

Under our general rule of standing, only those persons who have a

personal stake in the outcome of the litigation and who show that they have

suffered or were in immediate danger of suffering a direct injury as a

result of the complained-of conduct will be found to have standing. Oman

v. State, 737 N.E.2d 1131, 1135 (Ind. 2000); Hammes v. Brumley, 659 N.E.2d

1021, 1029-30 (Ind. 1995); Shourek v. Stirling, 621 N.E.2d 1107, 1109 (Ind.

1993); Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985). Absent this

showing, complainants may not invoke the jurisdiction of the court.

Higgins, 476 N.E.2d at 101. It is generally insufficient that a plaintiff

merely has a general interest common to all members of the public. Terre

Haute Gas Corp. v. Johnson, 221 Ind. 499, 505, 45 N.E.2d 484, 486 (1942).

Cittadine seeks to avoid this general rule by invoking the public

standing exception. He does not contend that he has suffered a specific

injury, but argues that, because the object of the mandate is to procure

the enforcement of a public duty, he has standing under Indiana's public

standing doctrine. Br. of Appellant at 6. As we recently noted in

Schloss:

Indiana cases recognize certain situations in which public rather than

private rights are at issue and hold that the usual standards for

establishing standing need not be met. This Court held in those cases

that when a case involves enforcement of a public rather than a

private right the plaintiff need not have a special interest in the

matter nor be a public official.

Schloss, 553 N.E.2d at 1206 n.3 (quoting Higgins, 476 N.E.2d at 101).

Specifically, the public standing doctrine eliminates the requirement that

the relator have an interest in the outcome of the litigation different

from that of the general public. Higgins, 476 N.E.2d at 101.

The public standing doctrine has been recognized in Indiana case law

for more than one hundred and fifty years. In Hamilton v. State ex rel.

Bates, 3 Ind. 452 (1852), a citizen and taxpayer of Marion County urged

that a 15% increase in the county's land valuation by the State

Equalization Board was invalid because it was made in the absence of a

representative from the Sixth District. Ordering a peremptory mandamus to

issue commanding the Marion County Auditor to disregard the increase, this

Court addressed the relator's right to bring the claim:

Were this a case merely for private relief, the relator would have to

show some special interest in the subject-matter. But here the case

is different. The defendant, who was County Auditor, refused to issue

the legal duplicate for the collection of the taxes, and a mandamus

was applied for to compel him to discharge this duty of his office.

It is a case for the enforcement, not of a private, but of a public

right; and it is not necessary, in such cases, that the relator should

have a special interest in the matter, or that he should be a public

officer. That the defendant should discharge, correctly, the duties

of his office, was a matter in which Bates, as a citizen of the

county, had a general interest; and that interest was, of itself,

sufficient to enable him to obtain the mandamus in question, and have

his name inserted as the relator.

Id. at 458. Similarly, in Bd. of Comm'rs of Decatur County v. State ex

rel. Hamilton, 86 Ind. 8 (1882), this Court stated that:

[W]here the question is one of public concern, and the object of the

mandate is to procure the enforcement of a public duty, the relator

need not show that he has any legal or special interest in the result

sought to be accomplished. In such a case it is only necessary that

the relator shall be a citizen, and as such interested in the

execution of the laws.

Id. at 12-13. In Wampler v. State ex rel. Alexander, 148 Ind. 557, 47 N.E.

1068 (1897), the Court expressed the principle as follows:

Where the question involved in a mandamus proceeding is of a public

concern, as is the one herein, and the object of the action is to

enforce the performance of a public duty or right in which the people

in general are interested, the applicant for the writ is not required

to show any legal or special interest in the result sought to be

obtained.

Id. at 571-72, 47 N.E. at 1072. In determining that "the relators are

shown to have the requisite degree of interest to enable them to maintain

this action[,]" the Court relied not upon their status as trustees, but as

citizens "interested in common with other citizens in the execution of the

law." Id. at 572, 47 N.E. at 1071-72. See also, Brooks v. State, ex rel.

Singer, 162 Ind. 568, 70 N.E. 980 (1904); Meyer v. Town of Boonville, 162

Ind. 165, 70 N.E. 146 (1904); Zuelly v. Casper, 160 Ind. 455, 67 N.E. 103

(1903); State ex rel. Cutter v. Kamman, 151 Ind. 407, 51 N.E. 483 (1898);

Bd. of Comm'rs of Clarke County v. State ex rel. Lewis, 61 Ind. 75 (1878);

Bd. of Comm'rs of Clay County v. Markle, 46 Ind. 96 (1874).

In addition to cases involving the enforcement of a public right or

duty, the principles embodied in the public standing doctrine have also

frequently been applied in cases challenging the constitutionality of

governmental action, statutes, or ordinances. In Bd. of Comm'rs of Clay

County v. Markle, 46 Ind. 96 (1874), nine residents, citizens, taxpayers,

and voters charged that a statute and county-seat relocation proceedings

predicated thereon were unconstitutional. Id. at 100. In response to the

defendants' claims that the plaintiffs' injuries were in common with other

taxpayers, citizens, and voters of the county, the Court analyzed not only

Indiana case law, but also that of Iowa,[4] Illinois,[5] Maryland,[6] and

New Hampshire,[7] concluding that "remedy may be had by any tax-payer in

his own name." Id. at 104 (citing City of Lafayette v. Cox, 5 Ind. 38

(1854); Oliver v. Keightley, 24 Ind. 514 (1865)). Similarly, in Brooks v.

State, ex rel. Singer, 162 Ind. 568, 70 N.E. 980 (1904), this Court

addressed the constitutionality of the legislative apportionment act of

1903 upon the request of a resident, citizen, and voter of Ripley County.

Id. at 570, 70 N.E. at 980. The Court stated:

We entertain no doubt of the right of the relator to maintain this

action. Every male inhabitant of the State, over the age of twenty-

one years at the time the last preceding enumeration of such

inhabitants was taken, has a direct interest in the constitutional

apportionment of senators and representatives throughout the State,

and if, by an apportionment act, his rights in this respect are denied

or impaired, he may obtain redress by proper action in the courts.

Id. at 577, 70 N.E. at 983. In Davis Const. Co. v. Bd. of Comm'rs of Boone

County, 192 Ind. 144, 132 N.E. 629 (1921), a township resident and taxpayer

challenged both a county contract and the act of 1919 upon which it was

based. The Court rejected the Board of Commissioners' argument that the

taxpayer had no standing to challenge the statute's constitutionality:

And a taxpayer clearly has sufficient interest to question the

constitutionality of the statute under which it is sought to impose a

burden upon the property of a taxing district in which he lives and

owns property subject to assessment, where the action seeking to

impose a burden under such statute remains otherwise undefended.

Id. at 147, 132 N.E. at 630. The public standing doctrine was also applied

to permit constitutional challenges in Graves v. City of Muncie, 255 Ind.

360, 264 N.E.2d 607 (1970), Mitsch v. City of Hammond, 234 Ind. 285, 125

N.E.2d 21 (1955), Zoercher v. Agler, 202 Ind. 214, 172 N.E. 186 (1930),

Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912), Fesler v. Brayton, 145

Ind. 71, 82, 44 N.E. 37, 40 (1896), and Denney v. Balser, 144 Ind. 503, 42

N.E. 929 (1895).

Public standing principles have also been applied to permit numerous

actions challenging various governmental activities or ordinances on

grounds other than constitutionality. See, e.g., Miller v. City of

Evansville, 244 Ind. 1, 189 N.E.2d 823 (1963); Hamer v. City of Huntington,

215 Ind. 407, 21 N.E.2d 594 (1939); Noble v. Davison, 177 Ind. 19, 96 N.E.

325 (1911); Jordan v. City of Logansport, 171 Ind. 280, 86 N.E. 47 (1908);

Meyer v. Town of Boonville, 162 Ind. 165, 70 N.E. 146 (1904); Scott v. City

of Laporte, 162 Ind. 34, 68 N.E. 278 (1903); Bd. of Comm'rs of Owen County

v. Spangler, 159 Ind. 575, 65 N.E. 743 (1902); Myers v. City of

Jeffersonville, 145 Ind. 431, 44 N.E. 452 (1896); Bd. of Comm'rs of Henry

County v. Gillies, 138 Ind. 667, 38 N.E. 40 (1894); Town of Winamac v.

Huddleston, 132 Ind. 217, 31 N.E. 561 (1892); Gemmil v. Arthur, 125 Ind.

258, 25 N.E. 283 (1890); City of Valparaiso v. Gardner, 97 Ind. 1 (1884);

City of Madison v. Smith, 83 Ind. 502 (1882); O'Boyle v. Shannon, 80 Ind.

159 (1881); Warren County Agric. Joint Stock Co. v. Barr, 55 Ind. 30

(1876); Rothrock v. Carr, 55 Ind. 334 (1876); Bd. of Comm'rs of Benton

County v. Templeton, 51 Ind. 266 (1875); Hurd v. Walters, 48 Ind. 148

(1874); English v. Smock, 34 Ind. 116 (1870); Harney v. The Indianapolis,

Crawfordsville, & Danville R.R. Co., 32 Ind. 244 (1869).

The public standing doctrine is not unique to Indiana. The Illinois

Supreme Court stated in Retail Liquor Dealers Protective Ass'n v.

Schreiber, 47 N.E.2d 462 (Ill. 1943): "Where the object is the enforcement

of a public right, the people are regarded as the real party, and the

relator need not show that he has any legal interest in the result. It is

enough that he is interested as a citizen in having the laws properly

executed." Id. at 464. The Florida Supreme Court used nearly identical

language in State ex rel. Village of North Palm Beach v. Cochran, 112 So.2d

1, 5 (Fla. 1959). In Tax Equity Alliance for Massachusetts v. Comm'r of

Revenue, 672 N.E.2d 504 (Mass. 1996), the Massachusetts Supreme Court said

that "[u]nder the public right doctrine, any member of the public may seek

relief in the nature of mandamus to compel the performance of a duty

required by law." Id. at 508. In the same year, the South Dakota Supreme

Court discussed public standing in Stumes v. Bloomberg: "If the taxpayer or

elector seeks to protect a public right, no special injury or special

interest need be established." 551 N.W.2d 590, 592 (S.D. 1996).

Similarly, the West Virginia Supreme Court "has consistently held that the

enforcement of a public right may be sought by anyone who shares a common

interest in that right with the public at large." Daily Gazette Co., Inc.

v. Comm'n on Legal Ethics of the West Virginia State Bar, 326 S.E.2d 705,

707-08 n.2 (W. Va. 1984). In the case of Wells v. Purcell, 592 S.W.2d 100

(Ark. 1979), the Arkansas Supreme Court stated that:

The rule is well settled, that when, in the absence of statutory

regulation, the proceedings are for the enforcement of a duty

affecting not a private right, but a public one, common to the whole

community, it is not necessary that the relator should have a special

interest in the matter, or that he should be a public officer.

Id. at 103. Other states that recognize the public standing doctrine

include Ohio,[8] California,[9] and Pennsylvania.[10]

In the present case, the appellees INDOT and Michigan Southern urge

that Cittadine's claim of public standing is foreclosed by Pence v. State,

652 N.E.2d 486 (Ind. 1995). Our Court of Appeals agreed, believing that

Pence had "revisited" and adopted a "change in emphasis" regarding the

public standing doctrine. Cittadine, 750 N.E.2d at 895.

In Pence, the plaintiffs sought to challenge provisions of a

statutory enactment that brought Indiana into accord with the federal

Americans with Disabilities Act, but which also included provisions related

to the salary of members of the Indiana General Assembly. The plaintiffs

claimed that the salary provisions violated Article 4, Section 19 of the

Indiana Constitution which generally requires that legislative enactments

be "confined to one subject and matters properly connected therewith."

Noting that the plaintiffs were allegedly interested as citizens and, as to

one plaintiff, as a taxpayer, this Court declined to address the

plaintiffs' claim applying the general standing rule because the plaintiffs

"failed to demonstrate any interest beyond that of the general public." 652

N.E.2d at 488.

Significantly, the majority opinion in Pence did not expressly

discuss the public standing doctrine, but observed:

While the availability of taxpayer or citizen standing may not be

foreclosed in extreme circumstances, it is clear that such status will

rarely be sufficient. For a private individual to invoke the exercise

of judicial power, such person must ordinarily show that some direct

injury has or will immediately be sustained.

Id. (emphasis added). This language clearly does not abrogate but rather

acknowledges the public standing doctrine. We view application of the

standing rule in Pence merely to express our exercise of judicial

discretion with cautious restraint under the circumstances. We hold that

Pence did not alter the public standing doctrine in Indiana.

The public standing doctrine, which applies in cases where public

rather than private rights are at issue and in cases which involve the

enforcement of a public rather than a private right, continues to be a

viable exception to the general standing requirement. The public standing

doctrine permits the assertion of all proper legal challenges, including

claims that government action is unconstitutional.

However, persons availing themselves of the public standing doctrine

nevertheless remain subject to various limitations. Thus, for example, the

doctrine does not prevent application of the Indiana Public Lawsuit Act,

Ind. Code § 34-13-5-1 through -5-12, or the requirement of exhaustion of

administrative remedies, see, e.g., State Bd. of Tax Comm's v. Ispat

Inland, 784 N.E.2d 477, 482 (Ind. 2003); Fratus v. Marion Community Schools

Bd. of Trustees, 749 N.E.2d 40, 46-47 (Ind. 2001); Town Council of New

Harmony v. Parker, 726 N.E.2d 1217, 1224 (Ind. 2000); Austin Lakes Joint

Venture v. Avon Util., Inc., 648 N.E.2d 641, 644-45 (Ind. 1995).

Similarly, although the Indiana Declaratory Judgment Act expressly

authorizes Indiana courts to "declare rights, status, and other legal

relations whether or not further relief is or could be claimed," Ind. Code

§ 34-14-1-1, to the extent that persons claiming public standing may be

seeking only declaratory relief, they must be persons "whose rights,

status, or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise . . . ." I.C. § 34-14-1-2. See Town of

Munster v. Hluska, 646 N.E.2d 1009, 1012 (Ind. Ct. App. 1995) ("In order to

obtain declaratory relief, the person bringing the action must have a

substantial present interest in the relief sought, not merely a theoretical

question or controversy but a real or actual controversy, or at least the

'ripening seeds of such a controversy,' and that a question has arisen

affecting such right which ought to be decided in order to safeguard such

right.") (quoting Morris v. City of Evansville, 180 Ind.App. 620, 622, 390

N.E.2d 184, 186 (1979)).

Application

Cittadine commenced this action on August 30, 2000, as a member of

the motoring public, seeking to require INDOT to enforce, against Michigan

Southern and other railroads in the state, Indiana Code § 8-6-7.6-1

(1998),[11] which expressly prohibited railroads from allowing obstructions

to block motorists' views for a distance of 1500 feet in each direction of

an intersection of public roadways with railroad tracks. The trial court

initially granted his request for an emergency writ of mandamus but,

following a full evidentiary hearing, denied the petition for a permanent

writ on September 19, 2000, on grounds other than lack of standing. Record

at 257-58. The Court of Appeals affirmed, but on grounds that Cittadine

lacked standing to bring the action. We conclude that Cittadine's claim,

which involves the enforcement of a public right, qualifies for the public

standing doctrine. His action is thus not prevented by the requirement

that he have an interest in the outcome of the litigation different from

that of the general public. See Higgins, 476 N.E.2d at 101.

We note, however, that the challenged statute was amended effective

July 1, 2001, to grant INDOT the authority to adopt rules, based on certain

factors, that vary the unobstructed view requirement. The amended statute

also reduces the unobstructed-view requirement for crossings with train-

activated crossing gates. I.C. § 8-6-7.6-1 (Supp. 2001).[12] Because the

relief sought by Cittadine's petition for a writ of mandamus is the

enforcement of statutory provisions that no longer exist but have since

been substantially amended, his claim is now moot.

On grounds of mootness, we affirm the trial court's denial of

Cittadine's petition for permanent writ of mandamus.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.

-----------------------

[1] At the time of the commencement of this action, Indiana Code § 8-6-

7.6-1 provided that each railroad "shall maintain each public crossing

under its control in such a manner that the operator of any licensed motor

vehicle has an unobstructed view for fifteen hundred (1500) feet in both

directions along the railroad right-of-way subject only to terrain

elevations or depressions, track curvature, or permanent improvements." As

more fully described in footnote 12, infra, this statute has since been

amended.

[2] Michigan Southern was made a party to the action below and is a

party on appeal.

[3] "The powers of the Government are divided into three separate

departments; the Legislative, the Executive including the Administrative,

and the Judicial; and no person, charged with official duties under one of

these departments, shall exercise any of the functions of another, except

as in this Constitution expressly provided."

[4] Rice v. Smith, 9 Iowa 570 (1859).

[5] Colton v. Hanchett, 13 Ill. 615 (1852).

[6] Mayor of Baltimore v. Gill, 31 Md. 375 (1869).

[7] Merrill v. Plainfield, 45 N.H. 126 (1863).

[8] State ex rel. White v. City of Cleveland, 295 N.E.2d 665, 668

(Ohio 1973) ("[W]here the question is one of public right and the object of

the mandamus is to procure the enforcement of public duty, the people are

regarded as the real party.") (quoting 35 Ohio Jurisprudence 2d 426, §

141.)

[9] Kinlaw v. State, 814 P.2d 1308, 1319 (Cal. 1991) (Noting that

public standing "promotes the policy of guaranteeing citizens the

opportunity to ensure that no governmental body impairs or defeats the

purpose of legislation establishing a public right.")

[10] Sprague v. Casey, 550 A.2d 184, 187 (Pa. 1988). Pennsylvania

allows taxpayers having no direct, substantial, and immediate interest in

the outcome of a matter to nevertheless challenge a governmental action if

it would otherwise go unchallenged.

[11] The text of the statute is provided in footnote 1, supra.

[12] This statute was amended in 2001 by adding the introductory

clause "Except as provided in subsection (b) or in a rule adopted by the

Indiana department of transportation" and by adding the following

sentence:

However, the Indiana department of transportation may adopt

rules under IC 4-22-2 to adjust the distance of the unobstructed view

requirement under this subsection based on variances in train speeds,

number of tracks, angles of highway and rail crossing intersections,

elevations, and other factors consistent with accepted engineering

practices.

2001 Ind. Acts 103-2001, § 1. In addition, a new subsection (b) was added

that provides an exemption for public crossings equipped with a train

activated crossing gate "if the railroad maintains an unobstructed view for

at least two hundred fifty (250) feet in both directions along the railroad

right-of-way." Id.