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Monday, August 28, 2006

Ind. Decisions - Three editorials today on last week's remonstrance ruling

Three editorials today on the Court of Appeals decision in Bruce Jones v. Martha Womacks (access ILB entry here - 3rd decision; see also this 8/25/06 entry).

From the Lafayette Journal & Courier:

All residents should be provided the chance to have a say in whether a school corporation should proceed with a building project.

That was the ruling from the Indiana Court of Appeals, which on Thursday declared the petitioning process used in remonstrance processes to be unconstitutional.

The petitioning process involves getting supporters and opponents of a particular project to sign competing petitions. But participation, under state law, has been limited to those who own property in the affected school corporation.

Remonstrances have occurred in a number of local corporations, including Tippecanoe School Corp. and Benton Central.

Now the appeals court ruled that the remonstrance process is a kind of election. The state cannot restrict traditional elections or referendums to property owners, so it can't place that requirement on remonstrance efforts.

It's a sensible ruling, one that recognizes that all Hoosiers should have a voice in government.

The ruling also recognizes that school projects affect not only those who own property, but also those who have children in school, and those who rent property and, presumably, pay property taxes through their rent.

The appeals court ruling won't go into effect until after the next legislative session, giving state lawmakers a chance to change the system used to challenge school boards' decisions to issue bonds to finance their projects.

A possible remedy would be to open the petitioning process to everyone living in the affected area.

But Rep. Jeff Espich, R-Uniondale, told the Associated Press he would prefer to hold a public vote on certain school bonds.

Some people may not want to put their name on a petition, which is a public document, but they would vote in an election, which allows for more anonymity.

"The whole idea is to give the public a say in these kinds of issues," Espich said.

According to the AP, 78 school bond remonstrance efforts have been attempted since state legislators passed the current bill in 1995. Forty succeeded and 38 failed.

Those numbers indicate that residents do want a voice in building projects; they do want some means of recourse when building projects are planned by corporation officials.

As they work to revamp the law to make it constitutional, state lawmakers should recognize the rights of residents to play a role in such decisions. But they also need to make sure that they don't make the process unwieldy, time-consuming or expensive for either schools or those challenging bonding issues.

From the Indianapolis Star:
Let's give renters a voice in how local governments, including school districts, spend money.
As it stands in Indiana, only property owners have the right to sign a petition either in support of or against proposed bonds. The Indiana Court of Appeals, however, ruled last week that renters also have a stake in blocking or approving such decisions.

In a case involving a recent $200 million bond issue by Indianapolis Public Schools, the three-judge panel correctly noted that higher property taxes lead to higher rents. Increased taxes on commercial property also are passed along to renters and non-renters in the form of higher prices.

State legislators should follow the court's lead by giving renters the right to participate in remonstrances and petitions that address paying for schools, libraries and other major capital projects.

As the U.S. Supreme Court said in an Arizona case, while property owners can have interests different from renters, "there is no basis for concluding that non-property owners are substantially less interested in the issuance of these securities."

The ruling, which doesn't affect the annexation process, won't take effect until after legislators have an opportunity to fix the law.

Lawmakers also should examine how the entire approval process works.

Studies show Indiana school districts spend a far high percentage of education money for interest on long-term debt than do schools in other states. The state's remonstrance process makes it difficult to mount opposition to projects such as the Central Library expansion, made by an unelected board, let alone to defeat them.

Perhaps big-ticket items should be subject to a referendum. Perhaps an arbitration process could lead to the type of negotiations that substantially cut the price tag of a recent school bond issue in Washington Township. Maybe postponing the issuance of bonds until after an intervening election of board members is the answer.

Perhaps less reliance on property taxes for building projects is the best answer of all.

From the Fort Wayne Journal Gazette, a lengthy editorial that begins:
The Indiana Court of Appeals forcefully and rightly ruled the state’s procedure of allowing dueling petition drives to determine the fate of large local government projects was unconstitutional because only property owners can participate.

Now, state lawmakers will be challenged to weigh a variety of compelling yet sometimes competing arguments to determine how much of a say the public should have in reviewing the spending decisions of their government officials. Of more immediate concern is whether the court’s decision should affect the pending petition drive over a Carroll High School expansion in Northwest Allen County Schools and Fort Wayne Community Schools’ plans for a multimillion-dollar, system-wide building renovation project.

State law allows property owners to challenge major building projects through a remonstrance petition that only property owners could sign. When 100 property owners sign a remonstrance petitions, it triggers a dueling-petition process in which supporters and opponents collect signatures of property owners, and the side with the most valid signatures wins.

The process is the equivalent of a vote that excludes renters and others who don’t own property. Paradoxically, it includes property owners who may not even live in the district or county. The process is appallingly exclusive.

“The petition/remonstrance process … is a de facto election or referendum,” the court ruled in a decision written by Patrick Sullivan, the dean of the appeals court judges. “We see no reason why the State, which could not constitutionally restrict the franchise to owners of real property in a traditional election or referendum by ballot regarding school bonding issues, should be able to accomplish effectively the same thing by providing for a petition/remonstrance signature-collecting competition. The State may not accomplish indirectly what it may not do directly.” * * *

Lawmakers need to seriously consider whether any kind of direct citizen vote on such projects is even necessary. Elected officials make other decisions that affect their constituents’ pocketbooks, and voters show their approval or opposition when those officials face re-election. * * *

Perhaps the simplest step lawmakers could take is to continue the petition procedure but allow any legal resident of voting age to sign. This step would undoubtedly increase the number of signatures, greatly increasing the workload for county auditors, who must verify the validity of all signatures.

Any new procedure the legislature develops is bound to have advantages and drawbacks. But almost any procedure is better than one that is not only unfair but, as the Indiana Court of Appeals determined, unconstitutional as well.

Posted by Marcia Oddi on August 28, 2006 08:10 AM
Posted to Ind. App.Ct. Decisions