Petition — Cantwell v. Hudnut

Supreme Court, U.S.

FILED \

MAY 12 1978

\

IN THE MICHAEL RODA

SUPREME COURT OF THE UNITED STATES———<~% CLERK

OCTOBER TERM, 1977

No. 99-1615

Paul Cantwell, Glen Howard

and Rozelle Boyd,

Petitioners,

Vs.

William H. Hudnut III, Mayor

of Indianapolis, Joyce Brinkman,

George Tintera, Alan Kimbell and

Paula Hart, Members of the Indianap-

olis-Marion County City-County

Council,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

JAMES A. STRAIN

EDWARD O. DeLANEY

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Attorneys for Petitioners

Paul Cantwell,

Glen Howard and

Rozelle Boyd

Le a

INDEX

SUGREGRS BOIGD caw arcsecitereccescsose 1

SU. wie de ce shecvenevnucecedes 2

ee De 445 bb 50 60 ude eve 2

DERIOES TUES oo dc cbdicien wescccces 3

Statement of the Case, Including

Basis for Jurisdiction ............ 4

Reasons for Granting the Writ ....... 12

mi The Decision of the Court of

Appeals for the Seventh Circuit

Conflicts with the Controlling

Decisions of This Court ...... 12

2. This Case Presents the Ques-

tion of the Propriety of Dilu-

tion of the Franchise in the

Context of Overinclusivity,

an Issue Not Directly Re-

solved by This Court and of

Such Importance as to Require

Solution by This Court ....... 19

GAGE 6 kw eddan dk Coltedunek ciaccas 22

Appendix I--Opinion of the Court

' OE BUGGED Socdcsescensis Al

Appendix II--Opinion of the District

Court for the Southern

District of Indiana ....A44

SO

Table of Authorities Page

Cases Holt Civic Club etc.

et al. v. City of

Page Tuscaloosa etc. et

al. No. //-515, 46

Associated Enterprises v. | U.S.L.W. 3555 re 19

~ Toltec Watershed etc., |

, ee 7: | » ae 18, 20 | Mahan v. Howell, 410

P 73) iS ee ae 8

Avery v. Midland County, 13, 19

355 U.S. 474 (1968)......... 10, 12,

17, 20 Reynolds v. Sims, 377 U.S.

rT 1 « «ine div@ind & © é 6.6 8, 10,

Bryant v. Whitcomb, 419 > ae: #

e Supp. 1290 (S5.D. 14, 18,

i oe el 15 / 19, 20,

22

City of Phoenix v.

olodziejski, 9 U.S. Salyer Land Co. v.

KI Faas Se a 20 Tulare Lake etc., 410

soe, go... a 18, 20,

Chark v. Town of 22,

reenburgh, 436 F.2d

on 6 SS ear i. 2 Swann v. Adams, 385

| Se Se ccc uvieeews we 8, 14,

Hadley v. Junior 19

~ Colle e Districe.

397 U.S. 50, (1970)......... 10, 12, | Town of Lockport etc.

13, 14, | v. Citizens for

17, 18, | Community Action etc.,

19, 20, | OP OB Fae 17

22 !

Holt Civic Club etc. | Statutes - Federal

et al. v. City of

Tuscaloosa etc. et | ge & Bee ss BPE 2

a :

fie eee 20, 21 ) Free Se eee +

22

EF eS i # £7 4

ae wate, Oe as ob cc'¥scsece 2

Fk Bo ae 4

ii iii

Page

Statutes - Indiana

IC 18-4-3-6 (1974 Burns),

C1976) .ccccscectuuevacueuen 7

IC 18-4-1-2 (1976)........44.- 5

IC 18-4-1-2(1) (1976)......... 6

IC 18-4-1-2(m) (1976)......... ; e°

IC 18-4-3-8 (1976)............ 11, 18

IC 18-4-3-13 (1976)........... 6

IC 18-4-4-5 (1976)........44.. f 6,

IC 18-4-5-8 (1976)............ 6

IC 18-4-12-6(b) (1976)........ 5

IC 18-4-12-34(b) (1976)....... 5

iv

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

Paul Cantwell, Glen Howard

and Rozelle Boyd,

Petitioners,

vs.

William H. Hudnut III, Mayor

of Indianapolis, Joyce Brinkman,

George Tintera, Alan Kimbell and

Paula Hart, Members of the Indianap-

olis-Marion County City-County

Council,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

The petitioners request that a Writ

of Certiorari issue to review the judg-

ment of the Court of Appeals entered in

the above cause on December 2, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals

reversing the District Court by a vote

of 2-1 is reported at 566 F.2d 30

(7th Cir. 1977). A copy is appended

as Appendix I. The District Court's

opinion is reported at 419 F. Supp. 1301

(S.D. Ind. 1976). A copy is appended as

Appendix II.

JURISDICTION

The judgment of the Court of Ap-

peals was dated and entered December 2,

1977. A petition for rehearing timely

filed by petitioners was denied on

February 15, 1978 with Chief Judge

Fairchild and Judge Swygert voting to

rehear the matter in banc. The juris-

diction of this Court is invoked under

28 U.S.C. §§ 1254(1) and 2101(c).

QUESTIONS PRESENTED

Is Equal Protection denied by a franchise

in governmental units having general

governmental powers which is diluted

nearly 40% through the votes of non-

residents who are neither taxed nor

served by the units?

Is Equal Protection denied where the

legislature of a municipal corporation

with general governmental powers is

controlled in large measure by another

legislature containing members elected

at-large from a county-wide district

having only 60% of its residents lo-

cated within the limits of the munici-

pal corporation?

Can relief mandated by a denial of Equal

Protection be refused because granting

it may result in exacerbating another

such denial?

STATUTES INVOLVED

Indiana Code (IC) 18-4-1-2(m)

(1976) provides:

(m) A "Special Service Dis-

trict Council” shall be compose of

all the members of the city-county

council elected from an electoral

district consisting of the entire

county, provided sixty per cent

[60%] or more of the population in

the county is encompassed within

the territorial limits of said

district. Such council shall also

consist of 1 member of the city-

county council elected from a

single electoral district under IC

1971, 18-4-3-6 with fifty per cent

[50%] or more of its gree

within the territorial limits of

said special service district.

Where the population of a

special service district is less

t sixty per cent [60%] of the

entire county at any time, the

members elected from the electoral

district consisting of the entire

county shall cease to be members of

the special service district

council. Where the population of

a portion of a special service

district within a single electoral

district falls below, or rises

above, such | per cent [50%],

the members shall cease to be, or

shall become, tn peat & a men-

ber of the special service district

council. Such special service

district council shall also include

members who are appointed to fill

vacancies in any district from

which any special district council

member was elected.

afte

IC 18-4-4-5 (1976) provides:

18-4-4-5. Special Service

District Council. The Special

Service District Council of any

Special Service District shall,

with respect to such district have

exclusive power by ordinance to

approve its budget and make appro-

priations and tax levies required

to be made under the provisions of

this article. No Special Service

District Council shall have au-

thority to originate or separately

to adopt any other ordinance.

However any ordinance adopted by

the City-County Council relating

solely or — to a Special

Service District shall be suspended

and of no effect until separately

approved and concurred in by a

majority of a Special District

Council when, but only when, the

Constitution of the United States

or the Constitution of the state of

Indiana prohibits such ordinance

taking effect without such approval.

STATEMENT OF THE CASE

INCLUDING BASIS FOR JURISDICTION

Jurisdiction was invoked pursuant

to 28 U.S.C. §§ 1343(3) and (4) since

violations of 42 U.S.C. § 1983 and the

Equal Protection Clause of the Four-

teenth Amendment were at issue. The

petitioners are each residents in and

registered voters of the Marion County

(Indiana) Police and Fire Special Serv-

ice Districts. Respondent William Hud-

nut III is the Mayor of the consoli-

dated government of Indianapolis and

Marion County, Indiana. The remaining

o4-

respondents are the four members of the

Indianapolis-Marion County Council who

are elected from the County at large.

(App. II, pp. A 58-59.)

Prior to 1969 Indianapolis was a

"First Class" city located wholly within

Marion County, Indiana and containing

slightly more than 60% of the avy s

residents. In 1969 a form of consolidated

government called "Uni-Gov" was begun.

Indianapolis was abolished as a separate

entity and merged into the Consolidated

City of Indianapolis which consists of

the then city together with much of the

rest of Marion County. The city of

Beech Grove and the towns of Lawrence

and Speedway are located in the same

county but were excluded from Uni-Gov.

(IC 18-4-1-2 (1976)) (App. I, p. A 3 and

App. yrs A 47.) Under the Uni-Gov

law a combined legislative body called

the City-County Council was created. It

has 25 members chosen from single-member

districts plus four elected from the

County at large. Some of the legislative

powers of the city and county were

combined in the City-County Council.

Other significant functions were not

consolidated.

Under Uni-Gov, police and fire

services within the county were not

merged. The residents from outside the

old city continued, as before, to be

served a the Sheriff and various fire

departments. The residents of the

former city were served by the same

police and fire departments that had

served the former city. The latter were

organized within the boundaries of the

former city under the name of Police and

Fire Special Service Districts. IC 18-

4-12-6(b) and IC 18-4-12-34(b) (1976).

These districts are separate bodies

corporate and while they do not enjoy

the power to issue general obligation

bonds, the activities of the two special

districts are broad. IC 18-4-1-2(1)

(1976). (App. II, pp. A 49-50.) Their

combined 1976 budget including pensions

exceeded $50 million of which $3i million

came from local tax levies. (Ibid at

A 59.)[1] These funds are expended

solely on services within the districts

(IC 18-4-3-13 (1976)). Similarly the

districts levy no taxes beyond their

boundaries. (IC 18-4-5-8 (1976)).

App. II, pp. A 62-64.)

(See

Each of these districts serving the

old city is

tive body called a Special Service

District Council, and not m the City-

County Council. IC 18-4-1-2(m). The

Special District Councils are given the

exclusive power to approve the district

budgets, appropriations and tax levies.

Ic 18-4-4-5. They may not adopt or

originate any other ordinance unless the

federal or state constitution requires

such approval. All remaining legis-

lative power for these districts lies

with the City-County Council elected

from the entire county. Ibid.

las the district court found,

the districts control property, purchase

supplies, regulate the members of the

police and fire forces and fix compen-

sation for employees. (App. II, p. A 60.)

The police force has full police powers.

Police and fire officers are provided

educational, insurance and pension

benefits. Ibid.

overned by a separate legisla-

a ee ween et eee eee — + >

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Ae hoe ee om me

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Pursuant to IC 18-4-1-2(m) the

Special Service District Councils are

made up of those single-district council-

men whose districts are at least 50%

within the Special Service Districts

plus the four councilmen elected from

the county at-large if the Special

Service Districts contain at least 60%

of the county population. Based on the

applicable census and districting data

the Special District Councils consist of

16 of the 25 single-district councilmen

who serve on the City-County Council

plus the four councilmen elected from

the county at-large. The latter repre-

sent both residents (60%) and non-

residents (40%)[2].

Certain cities in Marion County

were not included in the scheme of

consolidation. Like non-residents of

the districts who are located within the

consolidated city, residents of the

"excluded cities" are represented on the

Special District Councils by the four

councilmen elected from the county at-

large. IC 18-4-3-6 (1974 Burns) and 18-

4-3-6 (1976). Residents of the special

districts have no vote for members of

legislative bodies controlling the

2since the lines of the single

member districts are not consistent with

those of the Special Service Districts

there are residents of the Special

Service Districts whose single-district

councilman does not sit on the Special

District Councils. Conversely some non-

residents of these districts are repre-

sented on the councils both by the four

at-large councilmen and their single-

member district councilman. (App. I,

pp. A 5-8.)

police or fire affairs of such excluded

areas.

The amended complaint raised two

central issues. These were (1) the

denial of equal protection through

dilution resulting from the seating of

the councilmen elected from the county

at-large on the Special District Councils

although 39.2% of their constituents do

not reside in the districts, are not

subject to tax by the districts at their

place of residence and are not served by

these districts, and (2) the denial of

equal protection resulting from the

exercise of legislative control over the

Special District Councils by the overall

City-County Council which includes the

same at-large councilmen.

The District Court granted relief

as to both statutes attacked. It found

as to IC 18-4-1-2(m) that the special

districts enjoyed general governmental

powers (App. II, pp. A 59-61, 77-79) and

that the plaintiffs' franchise was

diluted to the extent of 39.2% in the

selection of the at-large councilmen.

(App. II, p. A 84-85.) It found the

extent of this dilution beyond constitu-

tionally oe limits under Mahan v.

Howell, 410 U.S. 315, 328 (1973) and

Swann v. Adams, 385 U.S. 440 (1967).

This dilution was found not to effect

any rational state policy. Reynolds v.

Sims, 377 U.S. 533 (1964). (App. II,

pp. A 84-89.) The trial court concluded

that the statute limiting the powers of

the special service district councils

(IC 18-4-4-5) also provided an improper

role in distric= affairs for the at-

large councilmen. (Ibid at A 89-91.)

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In reversing on the issues pre-

sented here by a 2-1 vote (Chief Judge

Fairchild dissenting) the Court of

Appeals relied on several theories. [3]

As a basis for the first theory it

granted arguendo that "a state law

allowing strangers to participate in the

vote for representatives to a local

legislative body having general govern-

mental powers over a particular terri-

tory would offend the equal protection

rights of the resident voters." (App.

I, p. A 23-4.) It further agreed with

the District Court's conclusion that

police and fire protection are general

governmental functions. (Ibid)

However, the Court of Appeals

concluded that “at most it can be said

that only part of the power to exercise”

such general governmental functions was

delegated to the Special Service Dis-

tricts while a "substantial part” of

this power was delegated to the

county-wide government. (Ibid) In fact

the Court of Appeals concluded that

under the scheme at issue the police and

fire powers “7 with the county-wide

government. e legislature was held to

have granted the Special Service Dis-

trict voters “added weight" as to fiscal

aspects of the districts without any

requirement to do so. (Ibid at 24-25.)

There was found to be no need to grant

the districts autonomy.

3Petitioners do not raise here a

third issue dealing with the confirma-

tion of the Public Safety Director. The

district court's denial of relief on

this issue was affirmed unanimously.

In reaching these conclusions the

Court of Appeals held that "the fran-

chise apportionment cases wit with

Reynolds v. Sims, 377 U.S. 533 (1964)

are .. . inapplicable here. . [since

petitioners] complain not that other

voters uave greater participation or

that districts are unequally appor-

tioned, see Hadley v. Junior College

District, 397 U.S. 50, 56 (1970), fot

that other persons are also allowed some

participation.” (App. I, p. A 28.)

Aside from its refusal to apply

Reynolds the Court of Appeals found

against petitioners on their dilution

theory. It held that non-residents of

the districts shared a "community of

interests" that justified giving them a

franchise. It also concluded that the

franchise structure at issue was ra-

tionally related to the "need for simpli-

fication and unification of metropoli-

tan" government, citing Avery v. Mid-

land County, 390 U.S. L7% CLOBy

(App. I, pp. A 32-34.) While accepting

this rationale, the Court of Appeals did

not overturn the District Court's

finding of a 40% dilution. It ques-

tioned whether the District Court's

finding of peo | 40% was "realistic"

but concluded only that non-residents of

the district have a "relatively minor

voice in the election of members of the

district councils." (App. I, pp. A 3l-

32 n. 13.) This "voice" was not quanti-

fied.

Lastly, the Court of Appeals noted

that if the councilmen elected from the

county at-large were excluded from

district affairs some district residents

who had no single member representative

on the Special Service District Councils

-10-

would be without representation. This

effect, which is a product of districting

not of statute, was apparently felt to

justify a denial of relief. [4]

Chief Judge Fairchild in dissent

found the same system "fraught with

unjustified classification of residents

of the districts and inequality of

representation." (App. I, p. A 41.)

Judge Fairchild would have held that the

granting of the franchise to an elec-

torate containing 40% non-residents

results in a "substantial dilution of

the voting power of the residents of the

special service districts." (App. I,

pp. A 38-39.) As proof of this he noted

that in 1975 this expanded electorate

seated four councilmen elected from the

county at large on the Special Service

District Councils who had received only

42% of the vote in the districts. The

candidates receiving 58% of the resi-

dents' votes were not seated. (Ibid at

A 39.)

Judge Fairchild did not find this

system permissible under the rubric of a

"valid response to the need for flexi-

bility in local government" (Ibid at p.

A 43) but rather concluded that:

4 Under the statutory scheme here

the district boundaries are set by the

City-County Council. The districts are

to be "compact" and to be wholly within

or wholly without the special service

district lines "where practicable”. IC

18-4-3-8 (1976). The district lines

at issue were drawn by the City-County

Council after the passage of Uni-Gov.

(Ibid. )

itn

"We do not have before us a

simple mechanism which could be

claimed to afford representation to

the overall government in recogni-

tion of some relationship it has to

the problems and decisions of the

special service districts, whatever

might be the proper result if that

were the case." (Ibid at p. A 41.)

Petitioners sought a rehearing in

banc. This was denied on February 15,

I978 with Judges Fairchild and Swygert

dissenting.

REASONS FOR GRANTING THE WRIT

Ba The Decision of the Court of

Appeals for the Seventh Circuit

Conflicts with Controlling Deci-

sions of This Court.

Under the decisions of Avery v.

Midland County, 390 U.S. 474 and

ey v. Junior College District, 397

U.S. a0 (1970) this Court concluded that

where units of elected local government

having "general governmental powers" are

at issue (Avery at 484-5) apportionment

Must not “deprive any voter of his right

to have his own vote given as much

weight, as far as is practicable, as

that of any other voter in the...

district." Hadley at 52. Any failur

to meet the norm of "one man, one vote"

must be “based on legitimate considera-

tions incident to the effectuation of a

rational state policy" (Reynolds v.

Sims, 377 U.S. 533 at 579 TI 3855) and

given such a policy must be within

constitutionally allowable limits.

Mahan v. Howell, 410 U.S. 315, 328

(1973).

siGe

The Court of Appeals specifically

rejected the applicability of Reynolds

and its progeny on the apparent ground

that dilution of the voting franchise is

only a relevant inquiry in cases where

there is malapportionment or where one

class of voters is alleged to have too

much participation (App. I, p. A 28.)

It concluded that the principles of

Reynolds do not apply to the device of

aitucion through extension of the

franchise to voters with no significant

interest on the affairs of a political

unit enjoying general governmental

powers. Thus Reynolds was held in-

applicable to cases of overinclusivity.

The rule of Reynolds as applied to

local governmental units with general

governmental powers in Hadley requires

that each vote of a person in the dis-

trict be given as much weight as that of

any other voter to the extent practica-

ble. Hadley supra at 52. The rule, as

stated, is not qualified by allowing

dilution through the device of allowing

non-residents to vote. The Court of

Appeals creates such an exception to the

rule. If the rules of Hadley and Mahan

are applied to the instant Facts without

this new exception, the structure at

issue fails to pass constitutional

muster.

The Court of Appeals placed primary

reliance on the case of Clark v. Town of

Greenburgh, 436 F.2d 770 (ind Cir.

1971). But as was noted by the trial

court (App. II, pp. A 82-83) Clark does

not support the position of the Court of

Appeals. In Clark a claim of overinclu-

sivity failed where the challenged

x)

franchise extended to voters who paid

sore taxes and got some services. Here

the challenged Seonchiae is given not to

taxpayers, residents or recipients of

services. No interest rising to the

level of that seen in Clark has been

shown that would support the exten-

sion of the franchise beyond special

district boundaries.

If Reynolds applies[5], the com-

plained of statutes must fail. The

dilution of nearly 40% found here is 50%

greater than that disallowed in Swann

v. Adams, 385 U.S. 440 (1967). Aside

from the scope of this dilution the

District Court and Chief Judge Fairchild

in dissent found no rational basis for

its existence. The District Court

specifically rejected the only two

rationales for dilution presented to it.

(App. II, pp. A 85-89.) The trial court

The Court of Appeals apparently

would diminish the efficacy of the Equal

Protection Clause on the basis that the

Indiana Te ger granted residents of

the Special Service Districts more voting

power than necessary. Petitioners' con-

tention, however, is that once the fran-

chise is granted, it must comply with

the mandate of the Equal Protection

Clause. As this Court said in Hadley,

supra at 56:

[W]henever a state . . government

decides to select persons by pop-

ular election to perform govern-

mental functions, the Equal Protec-

tion Clause of the Fourteenth

Amendment requires that each quali-

fied voter must be given an equal

7 to participate in that

electiom. . .

obs

held that the franchise attacked did not

contribute to 7 “flexibility” in

solving the problems of local govern-

ment. Nor was the granting of the

franchise to all residents of the county

seen to fit with any protection of the

interests in the Special Service Dis-

tricts of those county residents from

outside the Special Service Distr. :ts

who owned property in the districts.

(Ibid)

The trial court's conclusion as to

"flexibility" was based on the fact that

the complained of wrongs were created

after Uni-Gov's formation. See Bryant

v. Whitcomb, 419 F. Supp. 1290 (S.D.

nd. and (APP - a pp. A 8-13.)[6]

The violations of Equal Protection at

issue here could not have contributed to

the formation of Uni-Gov as a solution

to local government problems. In fact

the local government at issue abrogated

the complained of role of the at-large

councilmen in the course of settling

Bryant, an earlier suit attacking Uni-

Gov. (Ibid.) The Court of Appeals

ignored, but did not overturn, the

The Court of Appeals also pointed

to the fact that debt for capital ex-

penditures in the special services dis-

tricts are supported by a county-wide

tax base. (App. I, pp. A 20-21.) The

decision fails to note that since this

power does not lie with the Special Dis-

tricts the interests of non-district

residents need no protection there. In

fact the bond issues alluded to are

voted on by the whole City-County Council

in which the interests of non-residents

of the Special Service Districts are

fully protected.

-15-

District Court's conclusion on flexi-

bility. Nor did it disagree with the

trial court's rejection of the second

suggested rationale--the interests of

non-residents owning district property.

Ir. seeking a rationale for a denial

of Equal Protection the Court of Appeals

justified the 40% dilution largely on

the basis of recognition of a “community

of interests" in the way of social,

political aud economic ties between the

‘districts and the rest of the Uni-Gov

territory." (App. I, p. A 23.) This

conclusion is in direct conflict with

the conclusion of the District Court

based upon the record that:

"In sum, persons inside Marion

County, but outside the districts

hold no relationship to the dis-

tricts any different from the

relationship of persons living

outside Marion County altogether in

other parts of Indiana . =

(App. II, p. A 69.)

The District Court's conclusion which

was not overturned by the Court of

Appeals was based directly on a stipu-

lation signed by counsel for the re-

spondents which conceded that the common

social and economic interests pointed to

by the Court of Appeals extended —

the county boundaries i.e. beyond the

Uni-Gov territory. APP II, pp. A 68-

69 and R. following p. 73 at Stipulation

para. 21.) There is, therefore, no more

‘community of interest" basis for ex-

tending the Special Service District

franchise to Marion County residents

than there is to residents in the eight

counties surrounding Marion County or,

indeed, to residents ®™f the entire

state.

-16-

ee See a cles tadliites

If such vague interests can justify

the extension of the franchise beyond

the Special District boundaries then the

franchise of the residents of any local

government unit can be eroded by ex-

panding the franchise to "interested"

residents of nearby communities. The

line could be drawn to fit the pvlitical

convenience of the draftsman. Thus the

purpose of Avery and Hadley would be

defeated. ere the “community of

interests" rationale has been applied by

the legislature in one-direction only.

The Special Service District residents

are given no say over affairs of the

police departments of "excluded" areas

within the county. This only makes the

effect of dilution greater and belies

the claim that community of interests is

anything but an after-the-fact rationale

for control by "strangers."[7]

As another possible rationale for

dilution the Court of Appeals pagpess

that the device of seating councilmen

elected from the county at naan "“af-

ford[s] representation to nearly 200,000

of the districts’ residents who would

Petitioners recognize the possible

propriety of "stranger" voting in the

context of adjacent governmental units

operating in tandem and sharing some

veto power over each other. Cf. Town

of Lockport etc. v. Citizens for Com-

munity Action etc., 430 U.S. 259 (1977).

Here there is no such mutuality - the

residents of the special service dis-

tricts enjoy no control over police and

fire service in "excluded cities" out-

side their districts while residents of

those “excluded cities" are given con-

trol over special district affairs.

x\*

have no representation whatsoever on the

special service district councils if ;

only councilmanic districts wholly

within the special service districts sat

on these councils." (App. I, pp. A 30-

31.) There is no support in the statu-

tory scheme for this hypothetical

rationale. The district lines at issue

were drawn, not by statute, but by the

City-County Council after Uni-Gov was

effective. IC 13-4-3-8. No one has sought

to exclude these 200,000 voters from any

franchise. Rather the goal is to main-

tain the fullness of their franchise to-

ng with that of other district resi-

ents.

in _— =

ee ee ee a a

The Court of Appeals, while re-

jecting both Reynolds and the limits

imposed by Mahan and Swann, did note the

significance of certain of this Court's

earlier opinions. It noted (App. I, pp.

A 29-30) that petitioners argument is in

effect that the rules of Salyer Land Co.

v. Tulare Lake etc., 410 U.S. 7195

(1973) and Associated Enterprises v.

Toltec Watershed etc., 410 i 743

(1973) and Hadley hold in the converse

i.e. that onl ae benefited and/or

burdened by the operations of a govern-

ment unit having general governmental

porate should have the franchise. To

old otherwise is to run the risk of

control by non-residents. Under the

facts of the present case as was rec-

ognized by Chief Judge Fairchild in

dissent, the non-residents did not merely

et "some voice" they got a voice suf-

iciently great to control the outcome

of the election for members elected by

the county at-large who sit on the

Special Service District Councils.

Thus one-fifth of the governing bodies

represents a point of view cortrary to

-18-

that of a majority of the voters of the

special service districts." (App. lI, p.

A 39, Fairchild J. dissenting.)

The Court of Appeals despite Mahan

and Swann has decided that Equal Pro-

tection in the granting of a franchise

can be diluted to the extent of 39.2% in

favor of non-residents. This decision

has no adequate rationale under Reynolds.

The decision of the Court of Appeals on

the important federal Equal Protection

question presented is thus in conflict

with the applicable decisions of this

Court and should be reversed.

2. This Case Presents the Ques-

tion of the Propriety of Dilution

of the Franchise in the Context of

Overinclusivity, an Issue Not

Directly Resolved by this Court and

of Such Importance as to Require

Solution by this Court.

On March 6, 1978, this Court granted

review of Holt Civic Club etc. et al. v.

City of Tuscaloosa etc. et al. No. 77-

postponing its consideration of the

question of jurisdiction to the hearing

of the case on the merits. 46 U.S.L.W.

3555 (1978). Holt deals with an under-

inclusive franchise in a local govern-

mental system under which the City of

Tuscaloosa exerts extraterritorial

powers over adjacent non-residents who

are not enfranchised in Tuscaloosa

elections. It also raises the question

of whether the en < o non-residents

must seek the Tuscaloosa franchise in

order to state a cause of action.

At the heart of the Holt case is

the question of the application of the

decisions of this court in Hadley supra,

-19-

Salyer supra, and Associated Enterprises,

supra. ese cases when read together

re) that the rule of one man - one vote

of Reynolds v. Sims, 377 U.S. 533

(1964) and Avery v. Midland County, 390

U.S. 474 (1968) does apply to local

governmental units enjoying general

governmental powers but not to certain

narrow purpose units of government

affecting certain "definable groups of

constituents more than other constituents.

Salyer at 720-21 quoting Avery at 483-4.

The issue of dilution of the prin-

ciple of one man - one vote has arisen

in many forms. In Holt the question is

the constitutional propriety of the

franchise in a district which affects

non-residents through police and sani-

tary regulations while denying the same

non-residents the vote. Cf. Holt Civic

Club, etc. et al. v. City of Tuscaloosa

etc. et al., 525 F.2d Z5% (5th Cir.

1975). Dilution is discussed in Hadle

and Salyer where the contention was that

some voters had too much weight. Dilu-

tion by exclusion of interested resi-

dents was the wrong barred in City of

Phoenix v. Kolodziejski, 399 U.S. 204

(1970) which forbade the exclusion of

non-property owners from elections for

the approval of the issuance of general

obligation bonds. Id. at 213. The

present case presents the issue of

dilution in the form of overinclusivity.

Here non-residents of the Special Serv-

ice Districts do enjoy a franchise for

electing district officials although the

district's services and taxes are con-

fined to the districts.

At its heart the issue of dilution

is the same whatever its guise. It is

submitted that this question can best be

examined at the same time whether par-

ticular form of dilution is under- or

=20-

a ee ee ee. eS Bee es ee See fred ——

over-inclusivity. Consideration of Holt

and the instant case together would be

of real benefit in fixing the parameters

of Equal Protection in voting.

Beyond "dilution" there is yet

another parallel between the present

case and Holt. The Court of Appeals

notes in dicta its dissatisfaction with

the remedy sought. It observes that

since districting has left some Special

Service District residents without a

single district councilman on the

Special District Councils they will have

no representation if councilmen elected

from the county Pa are excluded

from these councils. [8 (App. I, p.

A 19.) The dissent while aware of this

concern rejected the possibility of

exacerbating one wrong as a justifi-

cation for preserving a second one.

(App. I, pp. A 42-43.) In lay terms the

Court of Appeals hints that "two wrongs

make a right" or at least justify the

continuance of the only wrong before the

court. This logic should not compel the

denial of any relief nor does the Court

of Appeals explain why it might.

Bat App. I, p A 20, n. 9 the Court

of Appeals also voices concern that a

ruling for petitioners would result in

litigation for the redistricting of

cinglo-neaber districts that contain

non-residents. This was not an issue

before the court. The existence of this

separate wrong is surely no basis for

preserving the wrong actually before the

Court.

=21l-

Whether the focus is on dilution or

on the appropriate remedy for it, the

issues suggested involve important

questions of federal law not yet fully

settled by the Court.

Conclusion

The decision of the Court of Appeals

on the question of overinclusivity is in

conflict with this Court's decisions in

Reynolds, Salyer and Hadley. There is a

real need for guidance on this issue

from the Supreme Court lest Equal Protec-

tion in local government be eroded. It

is respectfully suggested that this

Court hear this petition together with

Holt or defer ruling on it until after

the decision therein.

Respectfully submitted,

Edward 0. DeLaney

James A. Strain

1313 Merchants Bank

Buildin

tndienenelio, Indiana

46204

Attorneys for Petitioners

-22-

ee eee ee a eer eae

Al

APPENDIX I

[566 F.2d 30]

[Nos. 76-2076 and 76-2077]

PAUL CANTWELL, GLEN HOWARD and

ROZELLE BOYD,

Plaintiffs-Appellees,

Vv.

WILLIAM H. HUDNUT, III, Mayor of

Indianapolis; JOYCE BRINKMAN,

GEORGE TINTERA, ALAN KIMBELL and

PAULA HART, Members of the

Indianapolis-Marion County City-

County Council,

Defendants-Appellants.

PAUL CANTWELL, GLEN HOWARD and

ROZELLE BOYD,

Plaintiffs-Cross-Appellants,

Vv.

WILLIAM H. HUDNUT, III, Mayor of

Indianapolis; JOYCE BRINKMAN,

GEORGE TINTERA, ALAN KIMBELL and

PAULA HART, Members of the

Indianapolis-Marion County City-

County Council,

Defendants-Cross-Appellees.

United States Court of Appeals

For the Seventh Circuit

December 2, 1977

Before FAIRCHILD, Chief Judge;

TONE and WOOD, Circuit Judges.

A2

TONE, Circuit Judge.

Uni-Gov statute,

Indiana's

unifying the local

gqvernments of Indianapolis and Marion

County, is chalienged in this action as

denying certain voters the equal pro-

tection guaranteed by the Fourteenth

Amendment. The specific statutory

provisions under attack allow four city-

county councilmen elected at large from

the entire Uni-Gov area (a) to sit on

the councils of special police and fire

districts, the territory of which con-

sists of only part of the Uni-Gov area,

(b) to vote at Uni-Gov council meetings

on the business of those special dis-

tricts, and (c) to vote on the issue of

the confirmation of the Uni-Gov Direc-

tor of Public Safety, who is appointed

by the Mayor-Chief Executive subject to

confirmation by the city-county coun-

cil and whose principal duties related

l. The Act's formal designation

"Consolidated First Class Cities A. _

Counties Act," Chapter 173 of the Acts

of 1969, Ind. Code §§ 18-4-1-] to

18-4-15-2 (1971).

ee ee eT. ——

ee

et@ewd

ee ee ee a ie et eet ee). ee a ee

A3

to the special service districts. The

District Court held that (a) and (b)

but not (c) denied equal protection

to the plaintiffs, who are voters of

the special service districts. 419

F. Supp. 1301 (S.D. Ind. 1976). We

hold all three provisions valid and

therefore reverse in part and affirm

in part.

I.

The Uni-Gov statute consolidates

the local governments of the City of

Indianapolis and surrounding Marion

County. The statute creates special

police and fire service districts, each

of which consists essentially of the

area of the old City of Indianapolis,

but leaves police and fire services in

certain cities in the county which

are excluded from the new consolidated

government to the police and fire

departments of those cities and in the

rest of the county to the sheriff. The

city-county government has extensive

power over the police and fire special

A4 A5

.

service districts. In the words of the | not just the special service dis-

District Court, tricts (IC 18-4-3-1). (6) Beyond

“The Act as amended ties the the limited legislative powers of

special service districts into | the districts, their legislative

the county-wide administrative | affairs are controlled by the

structure. Thus, (1) the Police | entire City-County Council includ-

and Fire Special Service Districts ing both the at-large councilmen

are under the authority of the as well as single-district coun-

Department of Public Safety, IC cilmen from outside the districts."

18-4-12-1 et seq. (2) The same . 419 F. Supp. at 1307.

department is responsible for ; The special service districts have

weights and measures, civil defense their own councils made up of 20 of the

and the dog pound. IC 18-4-12-2. 29 city-county councilmen. Those

(3) The mayor appoints a Director councils have power to levy taxes and

of Public Safety subject to approval © make appropriations for the districts

by a majority of the entire City- and to approve the budgets for the

County Council. IC 18-4-3-4. districts, which are prepared by the

(4) The budgets for the districts : Director of Public Safety (and which

are prepared by the Director. i are ultimately subject to veto by the

IC 18-4-12-11 and 18-4-12-37. : Mayor-Chief Executive of the city-

(5) Upon the approval or modifica-

tion thereof by the special coun- ;

cils, the budget is subject to a |

council government).

Of the 29 members of the city-

county council, one is elected from

veto by the mayor of the con- each of the 25 councilmanic districts

soliated city-county (IC and four are elected from the county at

18-4-5-2(c)) who is elected by

the voters of the entire county,

Aé

large.” (Ind. Code § 18-4-3-6.)

The 25 districts are substantially

equal in population~ and no question

is raised concerning their configura-

tion or equality of population among

them.

The 20 councilmen who serve on

each special service district council

include the four elected at large,

whose participation as members of those

councils and in special service dis-

trict matters before the city-county

council is challenged, and 16 others,

who are elected from councilmanic

districts having at least 60 percent of

2. The city-county council repiaced

a nine-member council elected at large

from six councilmanic districts, with

each political party entitled to one

nominee from each district. At the

general election each voter could cast

a vote for nine persons, and the nine

having the highest number of votes

were elected members. (Ind. Code

§ 18-2-8-1 to Sal

3. Population varies not more than

one percent above or below the norm,

based on 1970 Census Data.

A7

their populations living within those

districts. Nine of these are wholly

within. The other seven are partly

within and partly without:

Councilmanic Residents’ Location

District Within Outside

5 28 , 666 1,967

7 28,276 3,248

8 27,508 1,743

12 20,096 8,145

14 25,622 5,849

17 29,307 1,127

20 20,545 9,744

Totals 180,020 31,823

Three councilmanic districts are partly

within and partly without the special

service districts but are not repre-

sented on the latter districts’ coun-

cils, because less than 60 percent of

their populations are within the latter

districts:

Councilmanic Residents’ Location

District Within Outside

3 5,357 26,572

4 3,572 28,273

24 5,486 26,202

Totals 14,415 81,047

A8

The 14,415 residents of these three

councilmanic districts who reside with-

in the special service districts are

represented in the special service

district councils only by the councilmen-

at-large. The remaining residents of

the special service districts are of

course represented on the special

service district councils both by the

councilmen from their own councilmanic

districts and by the councilmen-at-

large.

II.

Litigation concerning the special

service districts began shortly after

the passage of Uni-Gov in 1969. In

Bryant v. Whitcomb, 419 F. Supp. 1290

(S.D. Ind. 1970), in which the court

4. Regardless of where a councilman

or his constituents reside, he, of

course, represents all of his con-

stituents, residents as well as non

residents of the special service dis-

tricts. Cf. Dallas County v.

421 U.S. 477 TT neers

: sch v

387 U.S. 112, 115-117 (1967).

_ a ee ae ee ~~

A9

rejected a contention that the entire

Uni-Gov plan was a form of racial

gerrymandering, the composition of the

special service district councils was

also challenged. At that time the

statute was unclear as to whether

councilmen elected at large were t«

on the councils:

"A ‘Special Service District

Council’ shall be comprised of

members of the City-County Council

elected from all those districts

which encompass any part of a

Special Service District.”

Id. at 1296-1297. Noting that this

provision could be construed to allow

councilmen-at-large to sit on the

district councils, inasmuch as their

constituencies included the residents

of the districts, the District Court

neverthless declined to adopt that

construction, on the ground that it

“would raise serious constitutional

issues since approximately forty

percent of the voters for such

sit

Al0

councilmen will reside outside the

special service districts."" Id. at

1297.

The statute also gave the special

service district councils "exclusive

power by ordinance to approve [their]

budget[s] and make appropriations and

tax levies required to be made under

applicable law therefor; and that shall

be [their] sole function." Id. The

court noted that this limitation or the

district councils’ power left "the

entire residue of legislative authority

over important special service district

functions" in the hands of city-county

council. It also noted that the

projected composition of the city-

county council was such that councilmen

representing non-district residents

could overrule "the vote of a substan-

tial majority of the councilmen

actually representing the voters and

citizens of the special service dis-

tricts, including those constituting

[a] cognizable, racial minority." Id.

at 1298. Because the statutory

All

limitation on the special service

district councils’ authority allowed

representatives elected in part by

nonresidents of the districts to vote

on matters that concerned the districts

alone, the court held that limitation

to be an unconstitutional dilution of

the voting rights of the districts’

residents. Id.

The court abstained from ruling on

the severability of this provision from

the rest of the statutory scheme and

withheld further action to allow time

for the effect of the limitation found

to be invalid to be "nullified by the

state courts . . or by local or

legislative action," thus bringing the

Act in conformity with "constitutional

standards on this point.” Id. Shortly

thereafter, the city-county council

passed an ordinance providing that

police and fire district councils

could propose ordinances on all legisla-

tive matters concerning the districts

and that only councilmen representing

constituencies within the districts

Al2 Al3

th Pas ———

could vote on those proposals when they

were brought before the city-county | (Footnote continued from preceding page.)

council. On the basis of this ordi-

nance, the court entered judgment for

the defendants.

ee

limits of said District. Such

council shall also consist of any

member of the city-county

council elected from a single

electoral district .. . with

els «4 rt

;

In 1971 the Indiana legislature ;

abrogated 4 fifty per cent [50%] or more of

gated the ordinance by adopting a its population within the

variation of the original plan, speci- , territorial limits of said

fically including on the special ser- 4 special service district.

vice district councils both councilmen- Acts 1971, P. L. 258, § 1, Ind. Code

at-large and councilmen elected in § 18-4-1-2(m).

councilmanic districts in which more : "The special service district

than 60 , council of any special service

percent of the population is district shall, with respect to

within the special service districts. such district have exclusive power

The amendm by ordinance to approve its budget

ent also limited the powers and make appropriations and tax

of the special service district coun- ; levies required to be made under

:

|

|

the provisions of this article

[Ind. Code §§ 18-4-1-1 to

18-4-24-25.] No special service

district council shall have

authority to originate or sepa-

rately to adopt any other ordi-

nance. However any ordinance

adopted by the city-county council

relating solely or exclusively to

a special service district shall

be suspended and of no effect

until separately approved and

concurred in by a majority of a

special service district council

when, but only when, the Con-

stitution of the United States or

cils, as before, to fiscal matters.»

5. The amendment provided i -

nent part as deileus: Bi sens

"A 'Special Service District

Council’ shall be composed of

all the members of the City-

County Council elected from an

electoral district consisting of

the entire County, provided sixty

per cent [60%] or more of the

population in the county is en-

compassed within the territorial

Al4 ;

This action was then filed against

the Mayor-Chief Executive of the con-

solidated city-county government, the

four councilmen elected at large, and

the seven councilmen from those coun-

cilmanic districts with more than 60

p2rcent of their populations within the

special service districts. Plaintiffs

asserted that their votes as residents

of the special service districts were

unconstitutionally diluted by the

participation of those councilmen as

members of the special service district

councils, in special district matters

before the city-county council, and in

the confirmation of the Director of

Public Safety, and sought an injunction

(Footnote continued from preceding page.)

the constitution of the state of

Indiana prohibits such ordinance

taking effect without such

approval."

Acts 1971, P. L. 258

er Bly » § 6 Ind. Code

id siaeewss ee a

os plex hana eaves

Al5

against such participation. They also

sought an injunction "prohibiting

defendants from in any way limiting the

legislative power of the special ser-

vice district councils." The seven

councilmen from split councilmanic

districts were later dismissed out and

the contentions as to them abandoned.

The case was assigned to the same

district judge. Adhering to the posi-

tion he had announced earlier, he held

unconstitutional the statutory provi-

sions allowing the councilmen-at-large

to sit on the special service district

councils and to vote in the city-

county council on special district

matters. Id. at 1313. He reached the

opposite conclusion, however, on the

issue of the confirmation of the

Director of Public Safety. See Part V,

infra. These rulings are the subject

of the appeal and cross appeal.

On the issue of the limitations on

the powers of the districts, the Dis-

trict Court's judgment granted no

relief other than limiting the powers

Al6

of the councilmen-at-large. It is

therefore unnecessary, as plaintiffs

correctly state, to rule on the defend-

ants' arguments on this point, which

appear to be addressed to contentions

made by plaintiffs in the District

Court and to some expressions in that

court's opinion rather than its judg-

ment. See 419 F. Supp. at 1306, 1309,

1313-1314. No issue relating to the

limitations on the powers of the

special service districts is before us.

Plaintiffs do not contend that the

challenged statute dilutes the votes of

a racial minority, the earlier claim to

that effect in Bryant having been based

on Chavis v. Whitcomb, 305 F. Supp.

1364 (S.D. Ind. 1969), which was

reversed in Whitcomb v. Chavis, 403

U.S. 124 (1971).° Nor do plaintiffs

6. In that case the District Court's

order, which the Supreme Court reversed,

would have required reapportionment of

the state's legislative districts to

eliminate Marion County's multi-member

district, on the ground that the

Al7

question the apportionment of the

councilmanic districts.

IIl.

The interests of three groups are

involved in the Indiana legislature's

allocation of governmental authority

with respect to the special service

districts: (1) Residents of the six

councilmanic districts wholly within

the special service districts. (2) Resi-

dents of the special service districts

living in councilmanic districts which

lie partly within and partly without

the special service districts. (3) Resi-

dents of the county outside the special

service districts. The first group

does not require further attention at

this point, but the other two do.

(Footnote continued from preceding page.)

multi-member device operated to dilute

or cancel the voting strength of an

identifiable racial group.

Al8

A.

The four councilmen-at-large are

in essentially the same situation, so

far as the issues in this case are con-

cerned, as the seven councilmen elected

from the split councilmanic districts

with more than 60 percent of their

populations within the special service

districts.’ A majority of the con-

stituents of each of these councilmen

reside inside the special service

districts and a minority without .°®

re Plaintiffs' counsel acknowledged

as much in oral argument before us and,

in fact, as we have noted, the original

complaint challenged the participa-

tion of these seven councilmen. Plain-

tiffs abandoned that part of their

claim, as their counsel explained in

oral oegeent:, not because it was based

on a different legal theory, but

because the remedy it required,

redistricting, would unnecessarily

complicate and prolong the proceedings.

8. Over 60 percent of the consti-

tuents of the councilmen-at-large are

residents of the special service

Gistricts, including the 14,415 whose

only representation is through the

four councilmen-at-large. Defendants

Alg

More important for present purposes, if

the four councilmen-at-large were

excluded from participation in special

service district matters, 14,415 of

their constituents living in those

districts (in split councilmanic dis-

tricts 3, 4, and 24) would be disenfran-

chised as to those matters; and if the

seven were also excluded from partici-

pation in special service district

matters, their 180,020 constituents

within the districts would likewise be

disenfranchised as to those matters.

Thus, if these two categories of coun-

cilmen could not participate

(Footnote continued from preceding page.)

point out that if the registered voters

who live in the special service dis-

tricts had turned out in the same

proportion as those outside the dis-

tricts, the political party that won

the majority of votes within the dis-

tricts could have won the four at-large

seats, assuming the same proportion of

votes for that party if more persons

had voted.

A20

in special service district matters,

extensive redistricting would be

required in order to afford repre-

sentation to all persons who live in

the special service districts.”

B.

The county residents living out-

side the special service districts

comprise about 40 percent of the

county's population. Perhaps their

most easily identifiable interest

9. A _ oo with respect to the

four will apply to the seven not

only theoretically but, in all prob-

ability, practically. Nothing will

prevent other residents of the nine

councilmanic districts that are wholly

within the special service districts,

or the present plaintiffs if they are

so inclined, from bringing an action

to declare the participation of the

seven unconstitutional. The decision

here would be controlling in such a

case. In reality, cheegtaat. the

seats of eleven of the twenty members

of the special servi

pe By ce councils are at

A21

arises from the absence of any separate

debt capacity in the special service

districts: Expenditures on behalf of

the districts for facilities and

equipment which are not paid from cur-

rent funds must be financed through

obligations payable from taxes col-

lected countywide. Taxpayers who

participate in paying for capital

expenditures have an interest in how

facilities and equipment are used.

Other interests of the nonresi-

dents are less direct. Although the

districts levy taxes only on property

within their boundaries, +? between 60

and 70 percent of that property,

measured in terms of assessed valu-

ation, is owned directly or indirectly

by residents of the county who live

10. The District Court noted:

"Within Marion County there

are 49 tax rates applied to 83

different geographical areas. No

property taxes are (or could law-

fully be) collected by the special

service districts on property lo-

cated outside these districts."

419 F.Supp. at 1307

A22

11 Because the

outside the districts.

special service districts contain the

seat of the county-city government,

places of employment, shopping centers,

hospitals, and other public facilities,

nonresidents have an interest in police

and fire protection within the districts

which is of a magnitude lesser than the

interest of district residents but

greater than that of those who live

further away and do not rely on the

facilities of the district. Thus, for

example, over 70 percent of the county's

workers who live outside the districts

have their places of employment within

ll. This figure includes apartment

buildings, whose owners presumably pass

on the tax costs to their tenants.

This passing-on effect dilutes the

significance of defendants’ assertion

that the residents of the districts

pay directly only 9.37 percent and

12.6 percent of the taxes to support

the districts’ budgets. Cf. City of

Phoenix v. Kolodziejski, 399 0.5. 204,

210-211 (1970).

A23

them. +? Accordingly, as a result of

the economic and social, as well as

political, interrelationships between

the districts and the rest of the Uni-

Gov territory, all residents of the

county share a community of interests

in the proper operation of the police

and fire districts as well as the city-

county government of which they are a

part.

IV.

A.

Although there are no decisions on

the point, we shall assume the cor-

rectness of the District Court's view

that a state law allowing strangers to

participate in the vote for represen-

tatives to a local legislative body

having general governmental powers over

a particular territory would offend the

12. This figure is based on an esti-

mate (72.2 percent) by a representative

of the Bureau of the Census in a letter

to the Mayor-Chief Executive, William

H. Hudnut, dated January 19, 1976.

A24

equal protection rights of the resident

voters in that territory. Our diffi-

culty with applying that proposition

here is that it does not fit the facts.

Although police and fire protection are

certainly general governmental func-

tions, at most it can be said that only

part of the power to exercise those

functions is delegated to the special

service districts; a substantial part

of that power is delegated to the

county-wide government; and the exer-

cises of the police and fire protec-

tion powers within the districts by the

county-wide and district governmental

units are interrelated and interde-

pendent. Indeed, it is more accurate

to say that the Indiana legislature

delegated the police and fire protec-

tion functions in the districts to the

city-county government, which it

plainly had the right to do, except

for certain fiscal responsibilities,

which it elected to delegate to the

district councils in order to give the

votes of the residents of the districts

A25

added weight with respect to the fiscal

aspects of the districts’ affairs.

We know of no requirement that the

legislature give the votes of the dis-

tricts' residents that added weight.

If the police and fire functions had

been left entirely with the city-

county government, the districts’ resi-

dents would have had no grounds for

complaint except, perhaps, that taxes

levied outside the districts should

bear a part of the cost of police and

fire protection within the districts.

Such a claim is not before us. The

question is whether Indiana, having

elected to give some added voice to

citizens particularly affected by

particular governmental functions, must

give them autonomy with respect to

those functions.

An argument similar to that ad-

vanced by plaintiffs here was made to

the Second Circuit in Clark v. Town of

Greenburgh, 436 F.2d 770 (1971), in

which the “town,” comparable to the

county here, included six incorporated

A26

villages and an unincorporated area.

The plaintiffs were residents of the

unincorporated area, which had only

47 percent of the town's population but

was the source of 95 percent of the

town's property taxes and received 95

percent of the town's services. They

argued that their votes were unconsti-

tutionally diluted when residents of

the incorporated villages were allowed

to vote in town elections:

"They argue that since a state

may not dilute their vote by

maintaining election districts

of unequal population, Reynolds

vy. Same, 377 U.8. 339... @

state may not dilute their vote

by granting the vote to persons

having ‘no substantial interest

in and deriving no substantial

benefit from’ the Town govern-

ment.'' Id. at 772 (quoting

from plaintiffs' brief).

The Court rejected the plaintiffs' ar-

gument, finding the village residents'

interest in the town, government

|

:

3

4

4

|

;

:

n

&

;

.

4

:

:

a

A27

sufficient, not only to allow, but to

compel, the state to accord them the

franchise. The Court also said:

"That the village residents

may have less interest in Town

elections than the residents of

the unincorporated area does not

'dilute' the votes of the latter

group; if anything, their votes

are thereby strengthened since

the less interested group will be

less likely to vote. More funda-

mentally, voter ‘interest’ in

this sense wil] always vary from

group to group and issue to issue,

but this does not ‘dilute’ the

vote of any group in the consti-

tutional sense. It is true that

the Supreme Court has intimated

that in some specialized instances

the 'one-man-one-vote' rationale

may not apply, thereby perhaps

allowing the exclusion of some

class of voters. But this would

hardly help these plaintiffs, who

rely on the 'one-man-one-vote'

A28

analogy for their main consti-

tutional argument." Id. at 772.

Cf. also Rutledge v. Virginia, 330 F.

Supp. 336 (W.D. La. 1971); see also

Glisson v. Mayor and Councilmen of

Town of Savannah Beach, 346 F.2d 135,

137 (5th Cir. 1965).

The franchise apportionment cases

beginning with Reynolds v. Sims, 377

U.S. 533 (1964), are as inapplicable

here as they were in Clark v. Town of

Greenburgh. Plaintiffs here, like the

plaintiffs in that case, complain not

that other voters have greater partici-

pation or that districts are unequally

apportioned, see Hadley v. Junior

College District, 397 U.S. 50, 56

(1970), but that other persons are also

allowed some participation.

B.

Alternatively, even if we were to

view the problem before us as a dilu-

tion of plaintiffs' votes rather than

simply a delegation of governmental

functions within a local government

A29

with undisputed power over those

functions, we would not find the action

of the Indiana legislature violative of

equal protection. Although Salyer Land

Co. v. Tulare Lake Basin Water Storage

District, 410 U.S. 719 (1973), and»

Associated Enterpises, Inc. v. Toltec

Watershed Improvement District, 410 U.S.

743 (1973), involved special purpose

political units and on plaintiffs'

theory are inapplicable here for that

reason, plaintiffs are in reality

attempting to apply the principle of

those cases in reverse. Those cases

permitted the franchise to be limited

to the class of voters primarily bur-

dened and benefited by the activity

of the political unit. Plaintiffs

argue that they and others in their

position are the only ones burdened

and benefited and therefore only they

should have the franchise. Even as-

suming that this reverse twist on

Salyer and Associated Enterprises

should be accepted as a principle of

constitutional law, its applicability

A30

here would depend upon whether the

residents of the county outside the

districts, whose inclusion in the

franchise arguably dilutes the votes

of the districts' residents, lack any

interests which would justify allowing

them some participation in the election

of representatives whose responsibili-

ties include special service district

affairs. Cf. Lockport v. Citizens

for Community Action, 430 U.S. 259,

271 (1977).

Here those residents have interests

both as residents of the city-county

area whose government is responsible

to a large extent for the performance

of the police and fire functions in

the districts and as sharers to some

extent in the burdens and benefits of

that police and fire protection.

Indiana was justified in recognizing

those interests and at the same time

affording representation to nearly

200,000 of the districts' residents

who would have no representation what-

soever on the special service district

A31

councils if only councilmanic districts

wholly within the special service dis-

tricts sat on those councils. The

problem of the appropriate weight to be

given the various interests in allocat-

ing the franchise is not ems (am of

precise mathematical solution. The

13. The magnitude of the "dilution"

depends on the point of view. Focus-

ing on the four councilmen-at-large,

the District Court accepted the plain-

tiffs' view that it is approximately

40 percent, because that proportion of

the constituents of the councilmen-at-

large live outside the districts. 419

F.Supp. at 1309. Defendants argue

that the correct figure is 8 percent,

because the four councilmen-at-large

constitute only 20 percent of the

membership of the special district

councils (40% x 20% = 8%). We think

the latter approach is somewhat more

realistic. Plaintiffs’ approach not

only ignores the fact that 60 percent

of the constitutents of the council-

men-at-large are residents of the

special service districts but gives no

weight to the ratio of councilmen-at-

large to other special service dis-

trict council members. Thus that ap-

proach would show a 40 percent dilu-

tion if only one of the 20 special

service councilmen were elected at

large and the other 19 were elected

A32

Supreme Court has recognized the need

for flexibility in local government.

In Avery v. Midland County, 390 U.S.

474, 485 (1968), the Court said:

"This Court is aware of

the immense pressures facing units

of local government, and of the

greatly varying problems with which

they must deal. The Constitution

does not require that a uniform

straitjacket bind citizens in de-

vising mechanisms of local govern-

ment suitable for local needs and

efficient in solving local prob-

lems.

(Footnote continued from preceding page.)

entirely within the districts. On the

other hand, neither approach takes

account of the minorities outside the

special service districts who vote for

the seven councilmen from split council-

manic districts who sit on the special

service district councils. Either ap-

proach, in our view is of limited

value. It is enough to say that Uni-

Gov residents outside the special ser-

vice districts have been given a rela-

tively minor voice in the election of

members of the district councils.

A33

"The Sailors [Sailors v. Board

of Education, 387 U.S. 105 (1967)]

and Dusch [Dusch v. Davis, 387 U.S.

112 (1967)] cases demonstrate that

the Constitution and this Court are

not roadblocks in the path of inno-

vation, experiment, and development

among units of local government.

We will not bar what Professor Wood

has called 'the emergence of a new

ideology and structure of public

bodies, equipped with new capaci-

ties and motivations. .. .' R.

Wood, 1400 Governments, at 175

(1961) "+4

14. The Court goes on to say:

"Our decision today is only that

the Constitution imposes one

ground rule for the development

of arrangements of local govern-

ment: a requirement that units

with general governmental powers

over an entire geographic area

not be apportioned among single-

member districts of substantially

unequal population." 390 U.S.

at 485-486.

That ground rule is not violated by

the provisions attacked in the case at

bar.

A34

The passage in Professor Wood's book

referred to by the Court has reference

to the need for simplification and uni-

fication of metropolitan governmental

units, whose balkanized structures pre-

vent planning and social progress in

urban areas. This is the kind of prob-

lem Indiana has attempted to solve

with Uni-Gov.

The allocation of the franchise

of which plaintiffs complain is a rea-

sonable accommodation of the various

interests involved. Uni-Gov is a com-

lex experiment devised to solve diffi-

cult problems of local government. It

necessarily contains many interdepend-

ent parts designed to give recognition

to various interests and needs and to

serve the community of interests of all

the residents of the urban area. Among

those interdependent parts are the loca-

tion of councilmanic district boundaries,

the allocation of responsibilities be-

tween the city-county council and the

special service district councils, and

the assignment of councilmen to the

district councils. We find no

A35

constitutional bar to the solution

Indiana has chosen, inasmuch as that

solution was not invidiously discrim-

inatory, cf. Lockport v. Citizens for

Community Action, supra, 430 U.S. at

268, and was rationally related to the

furtherance of a legitimate state

policy. The injunctive order that

would exclude the councilmen-at-large

from serving on the special service

district councils or participating in

matters pertaining to the districts

that come before the city-county

council is reversed.

15. The proper test when the plain-

tiffs complain of dilution of their

votes for local government representa-

tives is not strict scrutiny (as in

a case of total denial, Kramer v.

Union Free School District No. 15,

ut whether the

dilution is reasonable in extent and

necessary to further a permissible

state polic Mahan v. Howell, 410

U.S. 315, 3 1- 323, 325, 326 (1973) ;

Abate v. Mundt, 403 U.S. 182 (1971) ;

Swann v. Adams, 385 U.S. 440 (1967).

A36

V.

The Director of Public Safety is

appointed by the Mayor-Chief Executive

of Uni-Gov subject to the approval of

the city-county council. The Director

is responsible for supervising the

special service districts, coordinating

“the activities of the department [of

Public Safety] with the sheriff and the

coroner of the county," and the other

county-wide responsibilities described

above. (Ind. Code § 18-4-12-5.)

Plaintiffs argue, in support of

their cross appeal, that an unconsti-

tutional dilution of their voting power

results from allowing the councilmen-at-

large to vote on the confirmation of the

Director. The District Court rejected

that claim on the authority of Sailors

v. Board of Education, supra, 387 U.S.

at 108, because the Director is a non-

legislative officer. We agree, noting

that our holding in Part IV, above,

would require the same result apart

from the principle stated in Sailors.

Plaintiffs argue, however, that

the District Court erred in not

A37

applying the rule of collateral estoppel

on this issue, which would have bound

defendants by the court's earlier, con-

trary ruling in Bryant v. Whitcomb,

from which defendants did not appeal.

The ruling in Bryant on which plain-

tiffs rely was interlocutory, however.

The court entered final judgment in

favor of the defendants, not plain-

tiffs, after a city ordinance had

been passed incorporating the court's

suggested changes. The interlocutory

ruling was not itself appealable, and

it was mooted by the subsequent events.

We therefore affirm the District Court's

judgment insofar as it denies plain-

tiffs' claim with respect to the con-

firmation of the Director of Public

Safety.

REVERSED IN PART, AFFIRMED IN PART.

FAIRCHILD, Chief Judge, dissenting

in part. The Legislature has placed

the residents of the special service

districts in at least three different

classes for the purpose of selecting

the governing bodies for the districts.

A38

One class (which I will designate A)

consists of residents of councilmanic

districts wholly within the coterminous

special service districts. Each member

of Class A has a voice, equal with

every other resident of his council-

manic district, in selecting one mem-

ber (1/20) of the governing bodies.

The voice of a member of Class A in

this selection is not subject to any

dilution by sharing it with resicents

of an area outside the special service

districts, and thus not having the same

interest in its affairs.

A member of Class a aiso nas a

voice in selecting an additional four

members (1/5) of the governing bodies,

but he shares this voice with all other

residents of Marion County. Although

he and his fellow residents of the

special service districts comprise

60% of that electorate, it seems clear

to me that the 40% who do not reside

in the special service districts, and

who thus do not have the same interest

in its affairs, produce a substantial

A39

dilution of the voting power of the resi-

dents of the special service districts.

The impact of this dilution is

dramatically illustrated by the 1975

election returns. In the election for

the four councilmen at large, the four

candidates who received approximately

58% of the vote in the special service

districts were not elected because they

lost the other areas of the county by

a larger margin than they carried the

special service districts. Thus one-

fifth of the governing bodies repre-

sents a point of view contrary to that

of a majority of the voters of the

special service districts.

A second class of residents of the

special service districts (which I

will designate B) consists of resi-

dents of councilmanic districts

partly outside the special service dis-

tricts, but with 50% of their resi-

dents within. Each member of Class B

has a voice equal with every other

resident of his councilmanic district,

in selecting one member (1/20) of the

governing bodies. He shares that

A40

voice, however, with residents of an

area outside the special service dis-

tricts and thus not having the same

interest in its affairs. Because of

this dilution, members of Class B have

a presumably less effective voice in

the election of their respective mem-

bers of the governing body elected by

districts than do members of Class A.

A member of Class B also has a voice in

selecting the additional four members-

at-large. In this respect his voice is

equal to that of each member of Class A

and C, but subject to the same dilution.

A third class of residents of the

special service districts (which I will

designate C) consists of residents of

councilmanic districts partly outside

the special service districts, and with

less than 50% of their residents within.

Although a member of Class C has a voice

in selecting one member of the council

of Uni-gov, that member does not sit

on the governing bodies of the special

service districts. Thus a member of

Class C has no voice corresponding to

the voice of members of Class A and B

A41

in electing a member of the governing

bodies from a councilmanic district. A

member of Class C does have a voice in

selecting the four members at large. In

this respect his voice is equal to that

of each member of Class A and B, but

subject to the same dilution.

Clearly the system of selection of

the governing bodies of the special

service districts is fraught with un-

justified classification of residents

of the districts and inequality of

representation. We do not have before

us a simple mechanism which could be

claimed to afford representation to the

overall government in recognition of

some relationship it has to the problems.

and decisions of the special service

districts, whatever might be the proper

result if that were the case.

The three plaintiffs are shown to

be residents of the special service

districts. The record does not show

whether they are members of Class A, B,

or C. In the present posture of the

case the challenge is directed solely

A42

at the participation of the four members

at large in the governing bodies of the

special service districts. If the

plaintiffs are all members of Class A,

there could well be argument as to their

standing to challenge the structure from

the point of view of a member of Class B

or C.

Moreover, one of the problems in-

herent in the relief granted by the

district court, excluding the four

councilmen-at-large from the governing

bodies of the special service districts,

is that it destroys any possible voice

on those boards of members of Class C.

Arguably affirmance of that relief

would be inappropriate because it exac-

erbates one problem while seemingly cor-

recting another. The various aspects

of inequality of the system are so

interdependent that if a court is to

deal with any, it arguably must deal

with all.

In any event, since the system

denies equal protection in several

aspects, I am unable to join in validat-

ing the system upon the principle that

A43

the council member-at-large device is a

recognition and reasonable accommoda-

tion of the interests of residents of

the overall municipality in the affairs

of the special service districts, or a

valid response to the need for flexi-

bility in local government.

A true Copy:

Teste:

Clerk of the United

States Court of Ap-

peals for the Seventh

Circuit

ASS

APPENDIX II

[419 F. Supp. 1301]

PAUL CANTWELL et al.,

Plaintiffs,

7 a

WILLIAM H. HUDNUT, III,

MAYOR OF INDIANAPOLIS, et al.,

Defendants.

Civ. A. No. IP 75-721-C

United States District Court,

S. D. Indiana,

Indianapolis Division.

Sept. 9, 1976.

FINDINGS OF FACT, CONCLUSIONS

OF LAW

THE COURT FINDS AND CONCLUDES

AS FOLLOWS :

STECKLER, Chief Judge.

Be The Historical Background

A4S5

Act"'+

the "special service district" councils.

The pertinent parts of the Act took

dealing with the composition of

Bs This action for declaratory and

injunctive relief relating to equal

protection in local Marion County,

Indiana elections was filed on Decem-

ber 16, 1975. Defendants answered on

January 13, 1976. Defendants moved to

strike portions of the womplaint. Plain-

tiffs then consented on January 20, 1976

to the dismissal without prejudice of

such portions of the complaint. On

February 2, 1976 plaintiffs answered

certain interrogatories clarifyin

the relief sought. On March 9, 1876

the parties filed a stipulation as

to facts which "may be accepted as if

the same were established by competent

proof upon the trial of this cause"

subject to objection on the ground of

relevancy. At the oral argument held

herein the parties further stipulated

that the last sentence of Stipulation

No. 20 be amended to reflect that in

March 1976 Exhibit Y thereto was ap-

proved by the Mayor and became an Ordi-

nance. [References to "Stipulation"’

are to a stipulation evidenced by all

parties to this action.] No objections

were made to the facts established by

1 1. i

a : This litigation relates to stipulation. No other evidence was

the constitutionality of the provisions presented.

of the "Consolidated First-Class Cities Briefing was completed on May 19

and Counties Act" IC 18-4-1-1 et seq. 1976 and oral argument was heard on

commonly referred to as "The Uni-Gov June 28, 1976.

A46

effect on June 30, 1969 and January 1,

1970. IC 18-4-15-2. Both prior to and

after the passage of Uni-Gov the City

(Footnote continued from preceding page.)

In addition to all the evidence

and the argument the court pursuant to

agreement and/or its inherent power

took judicial notice of the following:

(a) the acts of the Indiana General

Assembly which provided for the

government of Marion County, and

all units of government within

Marion County before Chapter 173

of the Acts of the Indiana General

Assembly for the year 1969, and of

that act and of all such sub-

sequent acts;

(b) published United States Census

Bureau data and material; and

(c) the Municipal Code of the City of

Indianapolis; the ordinances,

resolutions and minutes of the

City-County Council and of the

Police Special Service District

and the Fire Special Service

District.

(d) Its opinion rendered February 3,

1970, in Bryant, et al v.

Whitcomb, et al, No. IP 69-C-115,

and of the Final judgment in said

cause entered March 6, 1970, and

of City-County General Ordinance

No. 48, all of which are attached

to Plaintiffs' complaint as

exhibits in this cause.

A47

of Indianapolis was wholly within

Marion County, Indiana. The city

residents totalled somewhat more than

60% of the population of the county.

It was the only "First Class" city in

the State. Like most other American

cities, however, it was within a

County which had powers of its own.

Pursuant to the Uni-Gov Act, the then

City of Indianapolis was abolished as

a separate entity and merged into the

Consolidated City of Indianapolis

which consists of the then City

together with the rest of Marion

County. See IC 18-4-1-3. The other

large local units, the City of Beech

Grove and the towns of Lawrence and

Speedway, were excluded from the con-

solidation and retained their own

separate local governments. * The

, Since this Act relates to only

ia locality and is not of state-wide

application there is no need for a ‘.

three-judge panel. For fur-her back-

ground on Uni-Gov and the special

service districts at issue here see

"Special Service Districts in a City-

County Consolidation. Conflict between

A48 A49

Uni-Gov Act provided for a mayor to

be elected county-wide and a city

county council of 29 members, 25 from

single member districts and 4 to be

elected from the county at-large.

a Uni-Gov did not provide for

a complete consolidation of metropoli-

tan government. Although the right to

participate in the election of the

mayor of Indianapolis was extended to

all residents of Marion County, cer-

tain other services were left as

before. Notable among these were

police and fire services which con-

tinued to be performed by the Indianap-

olis police and fire departments for

the area that used to be the City and

by the Marion County Sheriff and

various fire departments for the

remainder of the county. The area of

the police and fire special service

districts could be extended by the

City-County Council and some insig-

nificant areas have been added.

De The Uni-Gov Act specifies

two "special service districts" at

issue here.” The first is the Police

Special Service District which was

set up with boundaries coterminous

with that of the now-dissolved City

of Indianapolis. IC 18-4-12-6(b).

The Fire Special Service District was

set up at the same time and with the

same boundaries. IC 18-4-12-34(b).

Provision was made for future e pan-

sion of the boundaries of these

districts. IC 18-4-12-8 and IC

18-4-12-36. Special Service Districts

are defined by the act as having the

"purpose of providing the property

owners therein with a service or

services." IC 18-4-1-2(1) and

18-4-15.5-1(p). The districts are

separate bodiks s corporate without the

(Footnote continued from preceding page.) 3. No hare s presented here as to

other far more Limited governmental

rate hi = Reform and 'One-Man institutions such as ens Solid Waste

e-Vote in Indianapolis--Marion Special Service District. Ic

County." 47 Ind.L.J. 101 (1971). 19-2-14.5-1 et seq

A50

power to issue general obligation bonds.

IC 18-4-1-2(1). These districts

provide police and fire service for

the area of the former city.

4. The Act sets up a legislative

body, or "council", for each special

service district. As originally

enacted in 1969 it provided that the

members were to come from the combined

city-county council as follows:

"A 'Special Service District

Council’ shall be comprised of the

members of the City-County Council

elected from all those districts

which encompass any part of a

Special Service District" Acts

1969, ch. 173, § 102(m).

In 1970 this Court entered its judgment

in Bryant v. Whitcomb, which observed,

inter alia, that the statute as it read

was ambiguous as to whether the at-

large members of the city-county

council were to sit on the special

service district councils. Since

their presence would raise serious

constitutional issues, the court con-

strued § 102(m) not to permit the

A51

at-large council members to sit on the

special service district councils.

The City-Council's response to the

Bryant opinion came in the form of

Ordinance No. 48 [Indianapolis Code

§ 2-84 now repealed].

5. In 1971, after Ordinance 48,

§ 102(m) was amended by Acts 1971, P.L.

258, § 1, to read as follows:

[18-4-1-2(m)]. A "Special

Service District Council" shall be

composed of all the members of the

City-County Council elected from

an electoral district consisting

of the entire County, provided

sixty per cent [60%] or more of

the population in the county is

encompassed within the territorial

limits of said District. Such

council shall also consist of any

member of the city-county council

elected from a single electoral

district under [IC 1971] 18-4-3-6

with fifty per cent [50%] or more

of its population within the

territorial limits of said special

service district.

A52 A53

selection of members of the special

service district councils by con-

stituencies including substantial

numbers of non-residents of the

districts.* The ambiguity found in

Where the population of a

special service district is

less than sixty per cent [60%]

of the entire county at any

time, the members elected from

the electoral district consist- Bryant was removed.

ing of the entire county shall 6. As originally established,

cease to be members of the the Special Service District Councils

Special Service District Council. had the following powers:

Where the population of a portion The Special Service District

of a Special Service District Council of any Special Service

within a single electoral dis- District shall, with respect to

trict falls below, or rises above such District have exclusive

such fifty per cent [50%], the power by ordinance to approve its

members shall cease to be, or budget and make appropriations

shall become, respectively, a

member of the Special Service

District Council. Such Special

Service District Council shall

also include members who are

appointed to fill vacancies in

any district from which any

Special District Council member

was elected.

As a result of the 1971 amendment, the

Statute clearly provided for the

and tax levies required to be

made under applicable law there-

for; and that shall be its sole

function. Acts 1969, ch. 173,

§ 405.

b.

four at-large councilmen would qualify

Based upon the 1970 census the

to serve on the special district

councils under IC 18-4-1-2(m) as

amended. The 1970 data is all that is

currently available.

A54

This Court in its opinion in Bryant

declared the statutory limitations on

the authority of the Special Service

District Councils over legislation

relating solely to the districts uncon-

stitutional on the basis that it

diluted the voting rights of the

residents of the districts. The

possibility of effective control of

the districts by the City-County

Council was the source of this problem.

It was left to the City-County Council

to deal with the problem. In Ordinance

No. 48 that body set up a procedure

allowing the Special Service District

Councils legislative control of affairs

within their purview and this was

incorporated into the judgment in

Sryant.

7. However § 405 was then

amended by 1971, P.L. 258, § 6 te read

as follows:

[18-4-4-5]. Special service

district council.--The special

service district council of any

special service district shall,

A55

with respect to such district

have exclusive power by ordinance

to approve its budget and make

appropriations and tax levies

required to be made under the

provisions of this article

[18-4-1-1--18-4-24-25]. No

special service district council

shall have authority to originate

or separately to adopt any other

ordinance. However any ordinance

adopted by the city-county council

relating solely or exclusively

to a special service district

shall be suspended and of no

effect until separately approved

and concurred in by a majority

of a special service district

council when, but only when, the

Constitution of the United States

or the Constitution of the state

of Indiana prohibits such ordinance

taking effect without such approval.

The effect of this structure is that

except for fiscal matters the special

service district councils are again

A56

able to be controlled by the 29 member

city-county council which includes both

the four at-large members and nine

councilmen from districts outside the

special service districts. >

8. Thus as of the date of the

judgment entry in Bryant (March 6, 1970)

this Court found no constitutional

problems remaining in the structure

or functioning of the special service

districts and entered judgment for the

defendants. As of that moment in

time Uni-Gov was a functioning reality

with the scope and membership of the

Special Service District Councils

set by statute and an interpretative

ordinance. In the interim since

March 6, 1970 this structure was

changed by Acts 1971 P.L. 258 as set

forth above and by the repeal of

Ordinance 2-84 In sum, P.L. 258 did

Fe Ordinance No. 48 also responded

to the Court's guidance as to the

proper method for selection of a Public

Safety Director.

A57

the following: (1) it restored the

at-large councilmen to the special

service district councils. (P.L. 258

§ 1 quoted supra at para. 5) and

(2) it restricted the functions of

these councils, (P.L. 258 § 6, (quoted

supra at para. 6). The repeal of

Ordinance 2-84 in 1976 only served to

confirm these effects and constituted

an approval of P.L. 258 by the defend-

ants herein. The same repeal leaves

the special district councils with

only fiscal powers and no effective

device to police the use of this

power. Neither P.L. 258 nor the

repeal of Ordinance 2-84 were shown

to be a response to any change in the

structure, functioning or area served

by the two special service districts

at issue. Neither P.L. 258 nor the

repeal of Ordinance 2-84 was mam Se

contribute in any way to the creation

or continuation of Uni-Gov. Thus,

any Constitutional defects found

therein will not be able to be jus-

tified by any progress towards

A58

metropolitan consolidation. The ser-

vices at issue were not consolidated

in 1969 nor since.

Il. The Parties

9. Plaintiffs Cantwell, Howard

and Boyd are all citizens of the

United States, registered voters in

Marion County, Indiana, and residents

of the Police and Fire Special Service

Districts which are defined in

IC 18-4-1-2(1) and IC 18-4-15.5-1(p),

and as established by IC 18-4-12-6(b)

and IC 18-4-12-34(b). Defendant

William H. Hudnut, III, is and has

been the Mayor of the City of Indianap-

Olis and the Chief Executive Officer

of the consolidated government for

Indianapolis and Marion County, Indiana

since January 1, 1976. He was

elected at the general election held

on November 4, 1975, and is the

successor to Richard G. Lugar in this

action pursuant to F.R.C.P. 25(d).

Defendants Tintera, Kimbell, Hart and

Brinkman are the four "at-large"

A59

members of the Indianapolis-Marion

County City-Council elected at the

general election held on November 4,

1975, each of whom represents a dis-

trict consisting of the entire area of

Marion County, pursuant to IC 18-4-3-6.

Defendants Hart and Brinkman are

successors in this action to former

councilmen Roger Brown and John Ruckelshaus

pursuant to F.R.C.P. 25(d).

III. The Nature of Special

Service Districts

10. There can be no doubt that

this case arises in the context of

significant governmental units.

Defendants have not argued differently.

Among the most fundamental and ancient

governmental services are police and

fire protection.

ll. The 1976 budget reveals that

the Police and Fire Special Service

District budgets including pensions

exceeds $50 million of which about $31

million comes from local tax levies.

No single item in the combined

A60

county-wide budget equals this total.

Only the Health and Hospital budget

($47 million) approaches it. Even

Welfare ($35 million) and the combined

budget for Roads and Transportation

($29.5 million) are smaller. The

activities of the special districts

are broad. By statute the Police and

Fire Special Service Districts through

the Director of Public Safety control

property, purchase supplies, regulate

the members of the police and fire

forces, ana fix compensation for

employees. IC 18-4-12-5. The police

force enjoys the fullness of the

police powers. IC 18-4-12-16. A

community relations office is a

functional part of the police force.

IC 18-4-12-28. Police and fire

officers are provided with insurance

and/or educational benefits. IC

18-4-12-30 and 31 and 18-4-12-50.

Pension funds are provided. IC

18-4-12-33. In sum, the constitutional

questions raised by the structuring

of elections for and powers of the

A6l

special service districts arise in the

context of municipal corporations

which are large in size and pervasive

in activity. These constitutional

problems are not temporary. Despite

the statutory provisions for the

expansion of the special districts and

their absorption by the consolidated

government there has been no substan-

tial change in the boundaries of the

districts.

as, The Act as amended ties the

special service districts into the

county-wide administrative structure.

Thus, (1) the Police and Fire Special

Service Districts are under the

authority of the Department of Public

Safety, IC 18-4-12-1 et seq. (2) The

same department is responsible for

weights and measures, civil defense

and the dog pound. IC 18-4-12-2.

(3) The mayor appoints a Director of

Public Safety subject to approval by

a majority of the entire City-County

Council. IC 18-4-3-4. (4) The

budgets for the districts are prepared

A62

by the Director. IC 18-4-12-11 and

18-4-12-37. (5) upon the approval or

modification thereof by the special

councils, the budget is subject to a

veto by the mayor of the consolidated

city-county (IC 18-4-5-2(c)) who is

elected by the voters of the entire

county, not just the special: service

districts (IC 18-4-3-1). (6) Beyond

the limited legislative powers of the

districts, their legislative affairs

are controlled by the entire City-

County Council including both the

at-large councilmen as well as single-

district councilmen from outside the

districts.

13. Within Marion County there

are 49 tax rates applied to 83 differ-

ent geographical areas. No property

taxes are (or could lawfully be)

collected by the special service

districts on property located outside

these districts.

A63

IV. The Department of Public Safety

and Its Relation to the Special

Service Districts

14. One of Uni-Gov's several

executive departments is known as the

"Department of Public Safety." The

present Director of Public Safety is

Murrill E. Lowry who has occupied

that office since May 20, 1974. Lowry

was appointed by Mayor William H.

Hudnut, III for a one year term in

January, 1976. The appointment was ap-

proved by the City-County Council.

The at-large members have consistently

participated in the voting on the

subject of confirmation of the Public

Safety Director by the Special Service

District Councils since 1969. Certain

minimal activities of the Department

of Public Safety extend beyond the

area of the Special Service Districts.

That is to be expected since the Uni-

Gov Act gives that Department, as Op-

posed to the Special Districts, certain

limited county-wide powers. See

IC 18-4-12-2. The Districts however

A64

have no right to serve non-residents

unless statutorily allowed. IC 18-4-

3-13. There was no showing of the

existence or use of any such authority

(if there be such) with the possible

exception of the reference to contracts

to provide fire service to non-resident

properties. (Exhibit X at pp. 5-7).

This is specifically permitted by

IC 18-4-2-9 and 10. With this minor

"exception" of no legal significance

the record establishes only that (a)

the Department of Public Safety has

certain county-wide functions paid on

that basis, (b) that the Department

administers the geographically-limited

Police and Fire Districts which have

separate financial structures and

(c) that the Department of Public

Safety and the Indianapolis Police and

Fire Districts cooperate with other

police and fire agencies. This cooper-

ation does not constitute anything

unusual and is typical of ordinary

governmental interaction. Such cooper-

ation does not approach a merger of

A65

district and county services. Since

1971 the districts have expanded only

through marginal annexations of indi-

vidual commercial sites, presumably

due to quirks in the Indiana liquor

laws. There has been no annexation

through the broad population growth

allowed by IC 18-4-12-8 and 18-4-12-36.

The Special Service Districts, as

opposed to the Department, have acted

only within their districts. They

tax only property located therein.

1S. In Indiana voting rights are

conferred according to the residence

of the voter regardless of place of

employment, property ownership or

other factors. See Indiana Constitu-

tion Article 2, Section 2 and IC 3-l-

16-9, 3-1-7-26 and 18-4-3-6. The pro-

visions plaintiffs attack are those

permitting all residents cf Marion

County to vote on the seating of

at-large councilmen on the Special

Service District Councils.

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A68

Thus while receiving only about 41% of

the vote in the Special Service Dis-

tricts, the four at-large councilmen

defendants are given representation in

their legislative bodies. The at-

large candidates who received over 58%

of the vote in the special service

districts do not sit by virtue of hav-

ing lost the other areas of the county

by a larger ->rgin than they carried

the special service districts.

18. No precise figures were made

available, but it was stipulated and

the Court finds that the ownership of

commercial and industrial businesses,

located within the Police and Fire

Special Service Districts rests with

individuals residing both within and

outside of such districts, and within

Marion County as well as outside of the

county. Also, residents residing both

within and outside of the Police and

Fire Special Service Districts and

within and outside of Marion County

hold substantial interests in the form

of stock in corporations which have

A69

major investments in some of the many

businesses located within such dis-

tricts. In addition, there are many

national corporations active in the

districts and owning real property

therein which have shareholders re-

siding both within and outside of the

districts and both within and also out-

side of Marion County. These corpora-

tions own substantial taxable property

within the districts. Such business

enterprises have employees who live

in Marion County, both within and with-

out such Special Service Districts, as

well as outside of Marion County. How-

ever, stock in such corporations is

also held by persons residing outside

of Marion County. In sum, persons in-

side Marion County, but outside the

districts hold no relationship to

the districts any different from the

relationship of persons living out-

side Marion County altogether in other

parts of Indiana, or even outside

Indiana.

A70

{2} 19. The calculation of the

extent of the dilution involved in the

selection of at-large councilmen (if

allowed to serve on the special district

councils) is relatively simple. at

least 39.2% of the county's population

lives outside the special service dis-

trict (Stipulation 7), thus since the

franchise is based on residence (Ic 18-

4-3-6) ome concludes that the vote of

the average resident, including plain-

tiffs, suffers a substantial dilution

through the votes of non-residents.

Plaintiffs contend this is a 39% dilu-

tion and clearly impermissible. at

oral argument the defendants suggested

for the first time that the apprc ximately

40% dilution in the election of the at-

large councilmen must be reduced by

multiplying it by 20% since the at-

large make up only 20% (4 of 20) of

the membership of the special service

district councils. Since 40% X 20% «=

Si the dilution thus becomes 8%. This

argument has a surface appeal but

misses the point. The denial of equal

protection here is determined by the

A71

dilution of plaintiffs* vote for the

at-large councilmen through the voie

of non-residents of the district. The

extent of the dilution cannot depend

upon the size of the legislative body

where the at-large sit. A 50: dilu-

tion in a Congressional race would not

be discounted because the elected Con-

gressman is only one of 435 represen-

tatives chosen to serve all the pecple

of this Country. Im any event, the

practical impact of the dilution is

the ultimate test and it is clear that

the very sizable vote cast by persons

outside the district had the effect of

reversing the selections of the resi-

dents of the district for their

councils.

20. The conclusions expressed in

Paragraph 6, supra as to the ability

of the City-County Council to control

the Special Service District Councils

is buttressed by a review of the

statutory and ordinance provisions

relating to the City-County Council

Committees. Each department of the

county-wide government has a standing

committee with powers as follows:

A72

18-4-3-1l1. Committees of the

council--Internal auditor.--The

city-county council shall set up

standing committees of not less

than three [3] council members for

each department, with full power

to investigate the policies and

jitures of the

phasis added.)

21. By ordinance the Department

of Public Safety has a Standing Con-

mittee (Indianapolis Code § 2-76(9))

but since March 1976 the Police and

Fire Special Service District Councils

have not enjoyed the powers of such a

committee which they had enjoyed prior

to the repeal of Indianapolis Code

§ 2-84. The provision of standing

A73

committee powers to the Special Service

District Councils had been incorporated

in the judgment in Bryant v_ Whitcomb

but was repealed by action of the City-

County Council as 4 whole taken during

the pendency of this case. This repeal

when taken together with IC 18-4-4-5

leaves the Special Service District

Councils with little if any power to

supervise the Police and Fire Depart-

ment for which they sedly serve

as legislative bodies.

22. This legislative structure

of the Act includes obvious grants of

power to non-residents of the district

since they can control the district

through their single-district council-

men as well as through their influence

on the at-large councilmen. However,

the property outside the district is

not subject to taxation by the dis-

trict. Taxation_is limited to property

solely within the districts. IC 18-4-

5-8. Similarly, unless specially pro-

wided, the special service districts

6. The Ordinances referred to here-

in are included in Appendix A hereto.

A74&

cannot provide service to non-residents.

IC 18-4-3-13. (See also Para. 12

supré.)

V. The Constitutional Issues

Raised by the Special Service

District as Implemented by

P.L. 258

23. This Court has subject matter

jurisdiction pursuant to 28 U.S.C.

§ 1343(3) and (4) and has jurisdiction

and venue of this suit since violations

of 42 U.S.C. § 1983 and the Equal Pro-

tection Clause of the 14th Amendment

are established. The Court has power

to order relief pursuant to 28 U.S.C.

§§ 2201 and 2202 on which this action

was brought.

24. At the time of the implemen-

tation of Uni-Gov, substantial liti-

gation was directed towards questioning

the constitutionality of the Act. See

ar (1971) 255 Ind. 545,

A75

266 N.E.2d 25 and Bryant v. Whitcomb,

supra.’ Virtually all of the provisions

of the Act withstood judicial scrutiny.

However, in Bryant the Court noted sev-

eral constitutional problems raised by

the structure of the special service

districts. These related to (1) the

membership of the special service dis-

trict councils, (2) the legislative

powers of these councils and (3) the

method of appointment of the public

safety director. The same issues

were raised by the plaintiffs herein.

In light of the changed factual cir-

cumstances discussed herein the Court

has decided these issues anew rather

than relying on the principle of col-

lateral estoppel.

d@ be noted that in Dortch

a aed eme Court did not rule

on the issue of “unequal protection

in the context of the special service

districts finding such issue to have

been waived by appellant there. 255

Ind. at 575-6, 265 N.E.2d at 44.

A76

[3} 25. This Court has recog-

mized the need for “flexibility” or

“experimentation” in local government.

See e.g., Dusch v. Davis (1967) 387

U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2¢

65€; Sailors v. Board of Education

(1966) 387 U.s. 105. 110-111, 87 S.cr.

1549, 18 L.Ed.24 650 ang Avery v. Mid-

land County (1968) 390 U.S. 474, 485.

88 S.Cr. 1114, 20 L.Ed.2d 45. Such a

need can justify a dilution of voting

power otherwise impermissible under

the Equal Protection Clause.” But

there is no showing that the legisla-

tion at issue here “may reasonably be

Saic to advance the rational state

policy” of providing flexibility in

local government. See Mahan v. Howell

(1973) 410 U.s. 315, 328, 93 S.Ct.

979, 987, 35 L.Ed.2¢ 320.

9. There is reason to doubt whether

this rationale could ever justify the

nearly 40% dilution found here. How-

ever, in light of the evidence that

issue need not be faced at this time.

A77

26. This Court is compelled by

Avery v. Midland County (1967) 390

U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d

45 and Hadley v. Junior College Dis-

trict (1970) 397 U.S. 50, 90 S.ct. 791,

25 L.Ed.2d 45 to conclude that the

units of elected local government at

issue here have such “general govern-

mental powers” (Avery at 484-5, 88

$.Ct. 1114) to require an apportion-

ment that “does not deprive any voter

of his right to have his own vote

given as much weight, as far as is

practicable, as that of any other

voter in the... district.” Hadley

10

at 52, 90 S.Ct. at 793. This

result should obtain a fortiori when

the dilution is in favor of a non-

resident.

“The. ing of Hadley is not

solialt =) a Vv. are Lake

3 : : : Ge.

ea asta} a8 659 which deals with

an exception to the rule of Hadley.

A7&

27. That these districts have

general governmental powers is obvious

when one compares the facts here with

those in Hadley. Here the powers of

the special service district are fully

as broad as those in Radley. Police

and fire services are normally the

very heart of those local governments

having "general responsibility". The

members of the Special Service Dis-

trict Councils do not have duties "far

removed from normal governmental

activities" or disproportionately

affecting only some citizens. Ibid.

at 56, 90 S.Ct. at 795. As with edu-

cation police and fire services have

traditionally been governmental func-

tions. Cf. Salyer 410 U.S. at 728-

729, 93 S.Ct. 1224. See also Baker v.

Regional School District No. 5 (2nd

Cir. 1975) 520 F.2d 799, cert. den.

423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d

369, where a district far more limited

than that in Hadley was found to be

within the rule of that case. The

question of whether participation in

A79

voting by non-residents constitutes an

impermissible "dilution" in violation

of the Equal Protection Clause has

rarely arisen. There is no reported

case other than this one where such

unique "representation without taxa-

tion" has in fact occurred.

(4, 5] 28. The defendants argue in

effect that the allowance of the at-

large councilmen on the special dis-

trict councils can be justified on a

property-based franchise theory. This

ignores the fact that the Constitution

of the State of Indiana, Article 2,

Section 2, specifically ties the right

to vote to residence only, not property

ownership or use of services. The

qualifications for voting in municipal

elections are limited to those set up

by the Constitution and the general

election laws. IC 3-1-16-9. These

latter are similarly limited to resi-

dence. IC 3-1-7-26. Under the Uni-

Gov Act it is this system of election

which is provided. IC 18-4-3-6. At

least in Indiana, defendants’

A80

discussion of other factors is irrele-

vant. The statute makes residence,

not property or other interests, the

test; the issue is whether residence

in Marion County outside the district

‘is a permissible selection.

29. Defendants assert that

Glisson v. Mayor and Councilmen of the

Town of Savannah Beach, (5th Cir. 1965)

346 F.2d 135 is "in point". That case

legitimized the use of a complicated

franchise based under the statute on

residence and/or property ownership.

The Fifth Circuit approved this fran-

chise in the context of a resort

community which allows the vote to

permanent residents of that city and

to residents of the county where the

city is located if they own property

in the city. There is no such two-

tiered franchise here. Voting for

ll. The rights of property owners who

lived outside the county were not ad-

judicated because of a standing

problem. Oliver v. Mayor et al., (5th

Cir. 1965) 246 F.2d 3s

A81

at-large councilmen here is based

solely on residence anywhere in the

county. IC 18-4-3-6. This franchise

does not require that any voter live

in the special service districts, work

therein or own property therein. It

does not deal with these questions at

all. Thus, many of the voters in

question here would not meet either of

the tests approved in Glisson. In

Glisson there was a "fit" between the

franchise granted by the statute and

the interests sought to be repre-

sented.‘ Here there is no such fit

as to the theory defendants assert.

hown

; he extent of the fit was st

oy nn in that case indicating

that 64% of the value of the real ;

estate in the city was owned by —

residents of the Sify O06 Soa-resisents

tial majority o -

ates 8 at Savannah ~o - ss

onths a year. ere

nny nor does it appear ing

thane is much of a useful analogy -

tween a beach resort and an urbanize

state capital.

A82

[6] 30. Defendants' aiso rely

on Clark v. Town of Greenburgh (2d

Cir. 1971) 436 F.2d 770. The "“out-

siders'' there both paid some taxes and

received some services from the govern-

mental body at issue. 436 F.2d at

772. Here by statute the property of

non-residents of the special service

districts located outside the district

cannot be taxed by the districts (IC

18-4-5-8) and the districts cannot

provide services outside the districts

except as provided by statute. IC 18-

4-3-13. Even if services are provided

to "outside" parts of Marion County by

contract, they cannot be a basis for

granting votes to broad numbers of

other non-residents of the district.

Moreover, to permit contracts to

require the Courts to hold otherwise

would be to induce a nation-wide

rejection of inter-government coopera-

tion for fear that it would permit, or

require, a change in the franchise.

It is this Indiana statutory arrange-

ment that is before the Court, as it

A83

was in Bryant. The New York structure

is so different as to be irrelevant.

31. Rutledge v. State of

Louisiana (W.D. La. 1971) 330 F. Supp.

336 is simlarly distinguished on the

issues of services and taxes. There

students from the city could attend

city or parish schools. Here, police

and fire services are geographically

limited. There, the chief source of

local revenue was local sales taxes

apparently collected from the whole

area of the parish. Here the main

local revenue comes from property

solely within the district. None

comes from property without the

district, and none comes from Marion

County outside the district as such,

i.e., as distinguished from any other

part of the state outside the dis-

trict. The other major sources of

revenue are federal revenue sharing

and Criminal Justice Revenues. Stip.

Ex. I.(2), H.(2). The case is not

controlling in any way.

a8.

[7} 32. The defendants made

much of the non-local source of some

Gistrict funds. This Court cannot

conclude that because federal revenu

sharing comes from all over the United

States certain residents of Marion

County get a vote for members of the

Special Service District Councils.

There is again no logical relationship

between the franchise granted and the

asserted justification.

{8} 33. It is the Court's

Gecision that in light of the nature

of the electorate which selects the

at-large city-county councilmen there

is a dilution of at least 39.2% of the

wote of the plaintiffs in the selec-

tion of these officials if they are

allowed to serve on the special ser-

vice district councils. This is an

obvious violation of the Equal Protec-

tion Clause and therefore IC

i8-4-1-2(m) as amended must be

¢eclared unconstitutional pursuant to

that Clause and 42 U.S.C. § 1983 since

it allows this result unless the

a&s5

defendants have shown that this

dilution is “based on legitimate

considerations incident to the effec-

tuation of a rational state policy.”

slds v. Sims (1964) 377 U.S. 533

at 579, 84 S.Ct. 1362 at 1391, 12

L.Ed.2¢ 506 and that given such 4

policy the dilution is within con-

nergy 23 tolerable limits. See,

han v. Howell (1973) 416 U.S. 315,

328, — S.Ct. 979, 35 L.Ed.2d 320.

Defendants have wholly failed to meet

this test.)>

34. The only two justifications

for the dilution suggested by defend-

ants were the need for flexibility to

achieve and maintain consolidation and

the desire to give non-resident

that this

13. Im light of the fact ct

Act permits the unique phenomer

— voting”, this Court is

<a to a the more rigid

A86

Property owners a voice in district

affairs. Both theories fail. There

is no showing th-t in 1969, let alone

i971, the provisions for excluding

police and fire services from con-

solidation furthered the effort to get

consolidated government. Even if this

had been shown there still was no

showing as to how this particular

method for seating the at-large

councilmen on the special district

councils was a suitable device

Gesigned to aid the flexibility needed

to make consolidated government

acceptable. Perhaps more obvious is

the point that the present system

enacted in 1971 reversed the structure

of a properly constituted council that

was the effect of the Original Uni-Gov

Act as implemented in General Ordi-

mance 48. These 1971 ordinances were

mot @ part of a compromise or general

plan and cannot claim any justifica-

tion in the name of flexibility.

Secondly, this Statutory scheme was

A8&?7?

plainly not designed to give any

representation to those county resi-

dents net outside the districts but

a portion of the Act ‘adie

only of “residents” (IC 18-4-3-6) and

mot of property. Defendants" property-

based rationale is clearly an after-

the-fact effort to justify the result

they seek and does not fit with the

Indiana constitutional or statutory

voting law.

35. AS was pointed out in Mahan

v. Howell, defendants cannot merely

assert a rational basis for deviation

from Equal Protection. They must go

on and show that:

“It can reasonably be said

that the state policy urged [by

them] to justify the divergences

in the legislative reapportion-

ment plan ... is, indeed,

furthered by the plan .. . and

whether, if so justified, the

divergences are also within

tolerable limits." 410 U.S. at

326, 93 S.Ct. at 986.

Defendants have failed to show that

this structure obtains any needed

flexibility, aids consolidation or

gives non-resident proper ers

alone a special voice in district

affairs. For all defendants have

shown the interests of non-resident

property owners who do not live in

Marion County have been swallowed in

a deluge of voting by Marion County

residents from without the districts

who own no property therein. This

measure has failed to give any impetus

to consolidation of the services at

issue nor has it been shown to have

led to any consolidation of any other

service at any time. Thus, the method

of selecting the members of the

Special Service District Councils is

lacking rational justification. More-

over, under no stretch of the imagina-

tion does this plan justify a 39.2%

dilution. Such a dilution is 50%

greater than that disallowed in

A&9

Swann v. Adams (1969) 385 U.S. 440, 87

S.Ct. 569, 17 L.Ed.2d 501. See Mahan,

410 U.S. at 328, 93 S.Ct. 979. In

light of the size of this dilution 4s

well as in light of its effect on the

akeup of the district councils we

must note the Supreme Court's caveat

in Mahan:

[a] State's policy urged

in justification of disparity in

district population, however

rational, cannot constitutionally

be permitted to emasculate the

goal of substantial equality.

410 U.S. at 326, 93 S.Ct. at 986.

To the extent that IC 18-4-1-2(=)

allows the at-large councilmen to

sit on the Special Service District

souncils, it is hereby declared uncon-

stitutional. Appropriate injunctive

relief should be entered.

[9] 36. The heart of the con-

stitutional wrong just found in IC

18-4-1-2(=) is in its effect, not its

form. Thus the Court must pay

A390

attention to any other device thar

allows the at-large councilmen an

improper say in the affairs of the

Gistricts. IC 18-4-4-5 has this

effect. It so limits the legislative

powers of the Special Service District

Coumcils as to make it impossible for

them effectively to control the ser-

vices for which they alone are allowed

to approve budgets, 2ppropriations and

tax levies. With those three limited

exceptions IC 18-4-4-5 throws the

legislative powers of the districts

into the hands of the entire City-

County Council including the four at-

large councilmen Gefendants. This

Court views this allocation of control

to the at-large councilmen to include

the unconstitutional effect of giving

power over district affairs to legis-

lators who are elected by an improp-

erly diluted vote. No constitution-

ally acceptable justification is

found. Therefore, it is declared

that IC 18-4-4-5 is unconstitutional

insofar as it allows the at-large

A91

councilmen any control over the affairs

of the special service districts in

their role as city-county councilmen

and insofar as it prevents those

councilmen properly representing

plaintiffs on said special councils

from effectively carrying out their

legislative duties. Appropriate

injunctive relief should be entered.

37. Plaintiffs have argued this

case largely in the context of IC

18-4-1-2(m) dealing with the member-

ship of the Special Service District

Coumcils and IC 18-4-4-5, to the

extent it purports to limit the powers

of said councils. The Court's views

as to the limitations on power as

set forth in IC 18-4-4-5 have been

presented supra in paragraph 36. In

addition, the Court has judicially

moticed several other statutory provi-

sions dealing with powers of the

Special Service District Councils.

Several of these statutory provisions

ptible of construction in

conflict with the Court's overall

A92

determination as to the proper member-

ship of and powers of the Special

Service District Councils. They are

discussed separately.

(a) IC 18-4-4-4 refers to the

City- County Council as the “primary

legislative body" of the consolidated

city and county. The same section

gives the City-County Council "exclu-

sive power to adopt budgets, to levy

taxes or special taxes and to make

appropriations required to be made

for... its special taxing districts

.". This provision could be

construed to be in conflict with IC

18-4-4-5 giving the Special Service

District Councils "exclusive power by

ordinance to approve" their budgets,

appropriations and tax levies.

(b) IC 18-4-5-5 deals with

methods of exercising powers provided

by the Act. It notes that "where no

method is provided for the exercise

of a power or to the extent the

method prescribed is incomplete, it

A93

may be established by ordinance of the

city-county council" subject to certain

limitations. This proviso could be

read to give the defendants herein

when acting together with the entire

City- County Council, residual authority

to control or overrule the actions of

the Special Service District Councils.

(c) IC 18-4-4-4.5 relates to

budget procedures and allows in some

instances for the making of additional

appropriations or transfers of funds

between budgets by the City-County

Council. Such proviso could be read

in such a fashion as to permit the

effective emasculation of the powers

properly belonging to the Special

Service District Councils.

(d) IC 18-4-3-11 provides inter

alia that the City-County Council

“shall also have the power to estab-

lish such other committees with such

powers as it shall determine by ordi-

nance." This proviso could be used by

defendants in conjunction with the

City-County Council in such a fashion

evevee

A94

as to establish committees conflicting

with the powers and responsibility of

the Special Service District Councils.

[10]38. The Court could deal with

the potential problems just raised

through the device of declaratory judg-

ment. It is clear that "a court may

grant declaratory relief even though it

chooses not to issue an injunction or

mandamus ... [but] a declaratory judg-

ment can then be used as a predicate to

further relief including an injunc-

tion." Powell v. McCormack (1969), 395

U.S. 486, 499, 69 S.Ct. 1944, 1952, 23

L.Ed.2d 491 (citations omitted). A

reading of the four provisions just

discussed makes it clear that they are

susceptible of interpretation or ap-

plication in such a manner as to cir-

cumvent this court's determinations as

to the membership of the Special Service

District Councils (IC 18-4-1-2(m) and

the powers of said councils (IC 18-4-

4-5). No such interpretations or ap-

plications have yet been made, however,

and accordingly no relief is required

at this time. The Court will presume

A95

that the defendants intend to act in ac-

cordance with the requirements of the

Constitution.

39. The necessity for injunctive

relief as relates to IC 18-4-4-4, IC 18-

4-5-5, IC 18-4-4-4.5 and IC 18-4-3-11

is not clear at this time. This is

especially true in light of the fact

that the Act does include several safe-

guards which should lead defendants

herein away from any course of conduct

which would require injunctive relief.

Thus, for example, IC 18-4-5-2(c) pro-

vides that as to the Special Service

District Councils the defendant mayor

may not veto its actions to the extent

that they constitute a resolution

setting up rules for the internal man-

agement of the council, or a "resolu-

tion making an appointment provided to

be made by the council under applica-

ble law, or selecting the clerks,

officers, employees, auditor or inde-

pendent auditors of the council.” In

light of this consideration and out of

respect for the independence of legis-

lative bodies, this Court will not

A96

attempt to define or establish the in-

ternal rules for functioning of the

Police and Fire Special Service District

Councils nor will it attempt to create

a specific structure providing for the

interaction between these councils and

the City-County Council. Rather these

legislative bodies are left to work

this problem out among themselves con-

sistent with the requirements of the

Act as construed by this Court.

40. Plaintiffs' request that the

at-large councilmen be excluded from

voting on the confirmation of a Public

Safety Director is denied on the au-

thority of Sailors v. Board of Educa-

tion (1966) 387 U.S. 105, 87 S.Ct. 1549

18 L.Ed.2d 650. The Public Safety

Director is a nonlegislative officer

within the meaning of that case unlike

the at-large defendants. The method

of his selection, unlike the method of

electing the at-large councilmen, may

well lead to some consolidation in

county-wide affairs, such as Weights

and Measures although it leads to no

’

A97

county-wide consolidation of Police

and Fire services.

VI. Relief

The appropriate relief is:

(a) Defendants Brinkman, Tintera,

Kimbell and Hart and their successors

as at-large councilmen should be per-

manently enjoined from serving or at-

tempting to serve on the Police and

Fire Special Service District Councils

since IC 18-4-1-2(m) should be declared

unconstitutional to the extent it allows

them to so act.

(b) IC 18-4-4-5 should be de-

clared unconstitutional insofar as it

improperly limits the powers of the

Special Service District Councils by

allowing defendants Brinkman, Tintera,

Kimbell and Hart and their successors

as at-large councilmen control over

the affairs of the special service dis-

tricts within the sphere of action

statutorily assigned fo such districts.

It should also be declared unconsti-

tutional insofar as it assigns said

Ags

defendants any control over said dis-

tricts denying to that extent the

proper members of said Special Service

District Councils the legislative

powers necessary to carry out their

mandate over the affairs entrusted to

said districts. This declaration is

not intended in any way to extend the

powers of che special service districts

beyond those granted in the Act but

only to allow the Special District

Councils to effectively execute the

powers so granted. Defendants Brinkman,

Tintera, Kimbell and Hart and their

successors as at-large councilmen should

be permanently enjoined from using or

relying on IC 18-4-4-5 to control the

affairs of said Special Service Dis-

trict Councils or to deny the prope

members thereof the legislative powers

necessary to carry out their mandate

under the Act.

(c) Plaintiffs" request that de-

fendants be enjoined from acting to

approve the Public Safety Director

should be denied.

age

(a) Wo relief should be granted

as to IC 18-4-4-4, 18-4-5-5, 18-4-4-4.5

and 18-4-3-11.

Jucoment to enter accordingly.

APPENDIX A

Sec. 2-76. Standing committees enumerat-

ed.

The standing committees of the city-

county council shall be as follows:

(1) The administration committee;

(2) The community affairs com-

mittee;

(3) The county and townships com-

mittee;

(4) The economic development com-

mittee;

(5) The metropolitan development

committee;

(6) The municipal corporations

committee;

(7) The parks and recreation com-

mittee;

(8) The public safety and criminal

justice committee;

(9) The public works committee;

A100

(10) The transportation committee.

(G.0. 293, 1971, § 2 (Rule 3.

§ 5; G.O. 53, 1975, § 1))

Sec. 2-77. Composition and chairmen of

standing committees:

The standing committees of the

city-county council shall consist of

the number of members determined by the

committee on committees, but shall not

be less than three (3) members and shall

have at least one (1) minority member.

The president of the city-county council

shall name the chairman of each standing

committee from among the members named

to the committee by the committee on

committees. (G.0. 293, 1971, § 2 (Rule

3. § 6>)

Sec. 2-78. President of the city-county

council to be an ex officio

member of the standing con-

mittees.

The president of the city-county

council shall be an ex officio member

of each standing committee of the city-

county council and may participate in

Alol

its deliberations. The president shall

not vote unless his vote would break 4

tie, and then only if he chooses to do

so. (G.0. 293, 1971. § 2 (Rule 3, § 7))

Sec. 2-79. Functions of standing com-

mittees.

It shall be the duty of all

standing committees of the city-county

council to consider all proposals re-

ferred to it as provided in these rules.

A standing committee may consider any

other matter properly concerning de-

partments or subject matter indicated

by the name of the standing committee.

Meetings of the standing committees

shall be open to the public. A

standing committee may hear such testi-

mony or public comment 4s the committee

deems proper. In lieu of separate

hearings, standing committees may meet

with the boards of corresponding city

departments. (G.0. 293, 1971. § 2

(Rule 3. § 9))

Al02

Sec. 2-80. Attendance at meetings of

standing committees by city-

county council members who

are mot on the committee.

Any member of the city-county

coumcil shall be entitled to attend

anc participate in the discussions be-

fore any standing committee. The

councilman introducing any proposal

referred to a standing committee shell

be a member of that committee while it

is considering that proposal, but

he shall not be entitled to vote.

(G.0. 293, 1971, § 2 (Rule 3, § 9))

Sec. 2-81. Action and reports on pro-

posals.

Any permanent or standing committee

of the city-county council to which a

proposal has been referred shall report

to the city-county council upon each

such proposal within forty-five (45)

days of its referral, either with or

without a recommendation, unless the

president of the city-county council

shall withdraw the proposal or reas-

Sign it. After any hearing by the

Al03

committee upon a proposal, the chairman

of the committee shall submit a formal

report of the committee's action, in

writing, to the clerk. The report

shall include any recommendations sup-

ported by a majority of the committee

and may, upon request of any member of

the city-county council, include a

minority position. Any member of a

committee may file a minority report.

Such reports shall be filed in sufficient

time to permit the clerk to circulate

copies to all members of the city-county

council prior to the next scheduled

meeting of the city-county council.

Copies of all committee reports shall

remain on file in the clerk's office

readily available to the press and

public. (G.0. 293, 1971, § 2 (Rule 3,

§ 10); G.O. 70, 1972, § 1)

Sec. 2-82. Meetings of standing con-

mittees.

Standing committees of the city-

county council shall establish at least

one (1) regular meeting time and date

each month. Other meetings of standing

Al04

committees shall be held at the call of

the committee chairman upon not less

than twenty-four (24) hours’ actual

motice to each member of the committee.

All proposals referred to the committees

shall be a proper ites of business at

each regular meeting, unless the pro-

posal has been reported back to the

city-county council. at any regular

meeting of a committee. three (3) men-

bers present shall constitute a quorum

for purposes of acting and reporting

om any proposal assigned to the con-

mittee. (C.0. 293, 1971, § 2 (Rule 3,

§ 11); G.0. 31, 1975, ¢§ 1)

Sec. 2-83. Special committees.

Special committees of the city-

county council may be formed by the

president of the city-county council

or by a2 vote of the majority of the

members of the city-county council for

any specific purpose proper for city-

county council consideration. Special

committees shall corsist of an odd

mumber of members aad shall have at

Al05

least ome (1) minority member. (G.O.

293. 1971. § 2 (Rule 3, § 12))

Sec. 2-84. Police special service dis-

trict committee and fire

special service district com-

mittee.

(a) There is hereby created a com-

mittee of the city-county council to be

known as the "fire special service dis-

trict committee" and a committee of the

cit+-counmty council to be known as the

“police special service district com-

mttee.”

>) Each member of the fire spe-

cial service district council, as es-

tebliished pursuant to section 310 of

chapter 173 of the Acts of 1969, or as

shall be established pursuant to sec-

tion 102(m) of chapter 173 of the Acts

of 1969, shall be a member of the fire

special service district committee of

the city-county council.

(c) Each member of the police

special service district council, us

established pursuant to section 310 of

chapter 173 of the Acts of 1969, or

A106

as shall be established pursuant to

section 102(m) of chapter 173 of the

Acts of 1969, shall be a member of the

police special service district com-

mittee of the city-county council.

(d) Each committee established

by this section shall elect a chairman

by majority vote of the committee and

shall provide for its organization,

procedures and meetings by rules to be

adopted by the majority vote of the

committee.

(e) Each committee established

by this section shall have the au-

thority and power of a standing com-

mittee of the city-county council as

specified in section 31l of chapter 173

of the Acts of 1969, with regard to

matters pertaining solely to their

special service districts.

(f) Each committee established

pursuant to this section, or a member

thereof, shall further have the au-

thority to propose ordinances on all

legislative matters relating solely

to their respective special service

districts. Any ordinance pertaining

A107

solely to a special service district

shall be acted upon by the city-county

council in accordance with its rules,

provided that the members of the city-

county council who are not members of

the committee for the district af-

fected by the ordinance shall not be

eligible to debate or vote thereon,

and any such ordinance receiving a

majority vote of those eligible to

vote shall be deemed to be duly passed

and adopted.

(g) The appointment of a director

of the department of public safety pro-

vided for in section 1203 of chapter 173

of the Acts of 1969 shall become ef-

fective, and shall be approved by the

city-county council, only upon approval

of the nominee by a majority vote of

the members of the fire and police

special service district committees

established in this section. (G.O.

48, 1970, §§ 1-7)

a ne ee

Al10&

Sec. 2-85. Investigating committees.

Investigating committees of the

city-county council may be formed by

resolution of the city-county council

for any lawful purpose. The resolu-

tion establishing the committee shall

specify the membership of the con-

mittee, the general nature of its in-

vestigation and the power to subpoena

witnesses, if the power is granted.

(G.O. 293, 1971, § 2 (Rule 3, § 13))

Secs. 2-86--2-90. Reserved.

RULE 4. PETITIONS, MEMORIALS,

SPECIAL RESOLUTIONS AND

COUNCIL RESOLUTIONS*

Sec. 2-91. Petitions.

Any petition directed to the city-

county council, whether specifically

authorized by law or not, shall be

filed with the clerk and called to

the attention of the city-county council

by the clerk under the proper order

*State law reference--Ordinances

and resolutions of the city-county

council, IC 1971, 18-4-5-2.

A109

of business. If the petition is one

specifically authorized by law, the

president shall refer it to a proper

committee. As to all other petitions,

any motion for referral or other ap-

propriate action shall be in order un-

less the motion requires action which

is proper only by a general resolution

or ordinance. In calling the petition

to the attention of the city-county

council, the clerk need not read the

petition in full but shall report,

fairly describing its contents. (G.O.

293, 1971, § 2 (Rule 4, § 1))