Eric Holcomb, in his official capacity as Governor of the State of Indiana v. City of Bloomington

IN THE FILED
Indiana Supreme Court Dec 15 2020, 8:39 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

Supreme Court Case No. 19S-PL-304

Eric Holcomb, in his official capacity as Governor of
the State of Indiana,
Appellant (Defendant),

–v–

City of Bloomington,
Appellee (Plaintiff).

Argued: January 9, 2020 | Decided: December 15, 2020

Appeal from the Monroe Circuit Court,
No. 53C06-1705-PL-1138
The Honorable Frank M. Nardi, Special Judge

On Direct Appeal

Opinion by Justice Goff
Chief Justice Rush concurs.
Justice David concurs in result.
Justice Slaughter dissents with separate opinion in which Justice Massa joins.
Goff, Justice.

In 2017, the legislature passed a statute stopping Bloomington’s
proposed annexation of several areas of land and prohibiting the city from
trying to annex the areas for five years. Bloomington, which had been in
the process of educating and engaging the public about the proposed
annexation but had not yet sought formal adoption of its plan, challenged
the constitutionality of the statute in a declaratory judgment action against
Governor Holcomb. The trial court ultimately found the statute
unconstitutional. On appeal, the parties present us with two issues: (1)
whether Bloomington can seek declaratory relief in this case from the
Governor, and (2) whether the statute is unconstitutional.

First, we conclude that Bloomington can challenge the statute in this
declaratory judgment action against the Governor. Because Bloomington
has suffered an injury, and due to the unique way in which the statute
was drafted, Bloomington’s suit satisfies the requirements of a declaratory
judgment action. Prudential concerns further compel us to reach the
merits of this case.

Second, we conclude that the statute is unconstitutional special
legislation in violation of Article 4, Section 23 of the Indiana Constitution
because the legislature enacted a special law—one that targeted only
Bloomington—when it could have enacted a law that applied generally
throughout Indiana. We thus affirm the trial court on these issues.

Factual and Procedural History
In early February 2017, Bloomington Mayor John Hamilton announced
plans for a proposed annexation of several areas of land. He and his team
then began the regimented, statutory process that they hoped would
result in the City of Bloomington Common Council formally adopting
ordinances annexing the land.

At a February 15 meeting, the City Council considered whether to
adopt resolutions formally initiating the annexation process. Over the
course of four hours, the City Council discussed the proposed annexation

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of each area and heard from members of Mayor Hamilton’s team, Monroe
County officials, and members of the public. The City Council ultimately
adopted the initiating resolutions.

As required by statute, city officials then published and mailed notices
of six public-outreach meetings to be held in March at the Bloomington
City Hall. Officials were available to answer questions at these “open-
house format” meetings, and members of the public were invited to
review additional information regarding the proposed annexation.

On March 29, the City Council considered whether it should formally
introduce—but not yet adopt—the proposed annexation ordinances.
Mayor Hamilton spoke in favor of the ordinances and, as at the February
15 meeting, the City Council also heard from members of the mayor’s
team, Monroe County officials, and members of the public. All told, the
City Council spent over six hours at this meeting discussing and
considering the introduction of the ordinances. It ultimately declined to
introduce the ordinance proposing to annex an area northeast of
Bloomington, but it introduced the other annexation ordinances.

Continuing to move through the steps in the statutory annexation
process, city officials planned to hold a public hearing on May 31 in a
high-school gym regarding the introduced annexation ordinances, and
they hoped that the City Council would officially adopt the ordinances on
June 30. But legislative developments would eventually put a stop to these
plans.

While Bloomington was taking its initial steps toward annexation, the
General Assembly passed legislation, codified at Indiana Code section 36-
4-3-11.8 (“Section 11.8”), concerning the annexation plan. Section 11.8 cut
off Bloomington’s proposed annexation and prohibited Bloomington from
trying to annex the same areas for the next five years.

In response, the City of Bloomington did not hold the planned public
hearing on the annexation ordinances but instead brought this suit against
the Governor, in his official capacity, seeking declaratory and injunctive
relief. Specifically, Bloomington sought declarations that Section 11.8
constitutes special legislation that violates Article 4, Section 23 of the

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Indiana Constitution and that Section 11.8 violates Article 4, Section 19’s
single-subject rule. The Governor sought to dismiss Bloomington’s
complaint, arguing that he was not a proper defendant because he does
not enforce the statute, but the trial court denied the motion. Both parties
eventually sought summary judgment. The trial court reiterated its prior
finding that the Governor was a proper defendant; declared Section 11.8
unconstitutional under Article 4, Sections 19 and 23 of the Indiana
Constitution; and entered summary judgment in favor of Bloomington.

The Governor filed a direct appeal, over which this Court has
mandatory jurisdiction pursuant to Indiana Appellate Rule 4(A)(1)(b). We
now affirm the judgment of the trial court.

Standard of Review
The issues in this case—whether Bloomington can bring this
declaratory judgment action against the Governor and whether Section
11.8 is unconstitutional—turn on legal questions such as the proper
interpretation and application of statutes and constitutional provisions.
See City of Hammond v. Herman & Kittle Props., Inc., 119 N.E.3d 70, 78 (Ind.
2019); City of Lawrence Utils. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind.
2017). “When ‘the challenge to summary judgment raises questions of law,
we review them de novo.’” City of Lawrence Utils. Serv. Bd., 68 N.E.3d at
585 (citation omitted). However, a statute comes “clothed with the
presumption of constitutionality until clearly overcome by a contrary
showing.” State v. Buncich, 51 N.E.3d 136, 141 (Ind. 2016).

Discussion and Decision
The annexation process generally involves three stages: (1) adoption of
an annexation ordinance by a municipality’s legislative body; (2) an
opportunity for affected landowners to object to, or remonstrate against,
the annexation; and (3) judicial review triggered by remonstrance. Town of
Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195,
1197 (Ind. 2016). See generally Ind. Code ch. 36-4-3 (2017). Before a
municipality can complete the first stage by adopting an annexation

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ordinance, it must take a series of statutorily prescribed steps that include
conducting an outreach program, introducing the ordinance, and holding
a public hearing. I.C. § 36-4-3-1.7, I.C. § 36-4-3-2.1. In this case,
Bloomington was moving through the steps toward ordinance adoption
when the legislature passed the budget bill that codified Section 11.8.

Although the proposed annexation ordinances had not yet been
adopted, the legislature intervened in the process by enacting Section 11.8
to stop Bloomington’s—and only Bloomington’s—proposed annexation.
The legislature achieved this purpose by first limiting the applicability of
Section 11.8 so that it would apply to Bloomington’s proposed annexation
alone. See I.C. § 36-4-3-11.8(a)–(d) (limiting its applicability to certain
annexation ordinances introduced between January 1, 2017 and June 30,
2017—when Bloomington’s were introduced on March 29—that had not
been adopted as of the statute’s effective date of April 30, 2017). Then, the
legislature declared that such an annexation ordinance falling within its
scope—namely, Bloomington’s—“is void and the annexation action is
terminated.” I.C. § 36-4-3-11.8(d). It further prohibited a municipality from
taking “any further action to annex any of the property to which this
section applies until after June 30, 2022, including introducing another
annexation ordinance covering some or all of the property covered by this
section.” Id.

With Section 11.8 blocking Bloomington from moving forward with its
proposed annexation, the parties raise the same two issues as before the
trial court: whether the Governor is the proper defendant and whether
Section 11.8 is unconstitutional. First, we conclude that, through no fault
of the Governor’s but because of the way the legislature drafted Section
11.8 and because of the prudential concerns involved, Bloomington can
bring its declaratory judgment action against the Governor. Second, we
conclude that Section 11.8 is unconstitutional special legislation in

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 5 of 25
violation of Article 4, Section 23 of the Indiana Constitution.1 We address
each conclusion in more detail below.

I. Bloomington can bring this declaratory judgment
action against the Governor.
In addressing whether the Governor is the proper defendant in this
declaratory judgment action, we proceed in three parts. In Part I.A., we
describe the Governor’s specific argument challenging the justiciability of
this suit and lay out the standard that controls this case. In Part I.B., we
consider whether this case is nonjusticiable based on the Governor’s
argument that he does not enforce Section 11.8. In Part I.C., we determine
whether this case is nonjusticiable due to prudential concerns. Ultimately,
based on all this analysis, we conclude that this case is justiciable, and
Bloomington can bring this declaratory judgment action.

A. As a threshold matter, we need only consider the
Governor’s specific justiciability challenge to
Bloomington’s declaratory judgment action, not broad
principles of standing.
The Governor’s preliminary argument that he is not the proper
defendant is a very specific, narrow attack on the justiciability of this case.
He does not dispute Bloomington’s injury; indeed, Bloomington has spent
over $800,000 on the proposed annexation so far, but Section 11.8
precludes it from completing the annexation process. In fact, the Governor
does not focus on Bloomington’s ability to bring a suit at all. He instead
focuses on Bloomington’s ability to seek a declaratory judgment against
him. Specifically, he argues that Bloomington cannot bring this
declaratory judgment action against him because he does not enforce
Section 11.8, so a judgment against him would not help Bloomington. To

1Because we find Section 11.8 unconstitutional under Article 4, Section 23, we do not consider
Bloomington’s argument regarding the statute’s constitutionality under Article 4, Section 19.

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 6 of 25
address this narrow argument, we must first examine the requirements of
a declaratory judgment action.

The Uniform Declaratory Judgments Act, as relevant here, allows a city
“whose rights, status, or other legal relations are affected by a statute . . .
[to] have determined any question of construction or validity arising
under the . . . statute” via declaratory judgment. I.C. § 34-14-1-2. See also
I.C. § 34-14-1-13 (including municipal corporations in the definition of a
person who may obtain declaratory relief). While the Act “is to be liberally
construed and administered,” I.C. § 34-14-1-12, it does not open the courts
to resolving theoretical cases; it still “requires a justiciable controversy or
question.” Ind. Dep’t of Environmental Management v. Twin Eagle, LLC, 798
N.E.2d 839, 843 (Ind. 2003). To satisfy this requirement, it’s enough that
the “ripening seeds” of a controversy exist and that the plaintiff has “a
substantial present interest in the relief sought.” Ind. Educ. Emp’t Relations
Bd. v. Benton Cmty. Sch. Corp., 365 N.E.2d 752, 755 (Ind. 1977) (quoting City
of Mishawaka v. Mohney, 156 Ind. App. 668, 297 N.E.2d 858, 860 (1973)
(quoting Zoercher v. Alger, 202 Ind. 214, 172 N.E. 186, 189 (1930))).

Here, Bloomington has a substantial present interest in the declaratory
relief it seeks because a declaration that Section 11.8 is unconstitutional
would remove the statute as a barrier to its proposed annexation. But, if
the Governor has no connection to Section 11.8, Bloomington’s declaratory
judgment action against him would lack even the ripening seeds of a
controversy and Bloomington could not obtain relief from him.
Accordingly, our task in addressing the Governor’s argument that
Bloomington cannot bring this suit against him boils down to one limited
question: What connection does the Governor have to Section 11.8?

This case does not turn on broad principles of standing. Justiciability, in
the context of declaratory judgment actions, merely requires that the
“ripening seeds” of a controversy exist and that the plaintiff has “a
substantial present interest in the relief sought.” Id. This relaxed standard
aligns with the purpose of declaratory judgment actions: “to settle and to
afford relief from uncertainty and insecurity with respect to rights, status
and other legal relations.” I.C. § 34-14-1-12. Here, Bloomington brought its
declaratory judgment action seeking relief from uncertainty and insecurity

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surrounding Section 11.8, and the Governor has raised a narrow challenge
to the justiciability of the dispute based on his alleged lack of connection
with the statute. None of this turns on broad principles of standing.

Keeping in mind the Governor’s narrow justiciability argument, we
consider the unique impact of annexation statutes like Section 11.8;
analyze what the structure and application of Section 11.8 mean for its
enforcement; and review the potential sources of the Governor’s
enforcement authority to see what, if any, connection the Governor has to
the statute.

B. The legislature drafted Section 11.8 in a unique way
that vests enforcement authority in the Governor, and
Bloomington can bring this declaratory judgment action
against him because of it.

1. Annexation is a unique area of law primarily dealing
with public rather than private relations.
Our annexation statutes, including Section 11.8, represent a unique area
of law. They provide a detailed process by which municipalities may try
to expand their boundaries to incorporate adjacent territory with urban
characteristics. See City of Carmel v. Certain Southwest Clay Township
Annexation Territory Landowners, 868 N.E.2d 793, 796 (Ind. 2007). When a
municipality annexes territory, no property changes hands and no private
rights of landowners are affected. Bradley v. City of New Castle, 764 N.E.2d
212, 215 (Ind. 2002) (citation omitted). Rather, “the act simply changes the
property and its owner, in their civil relation to certain public authority.”
Id. (quoting Stilz v. City of Indianapolis, 55 Ind. 515, 523 (1877)). These
unique attributes distinguish annexation statutes from statutes that impact
private rights or that do more than adjust civil relations to public
authority, which some federal courts have determined cannot be
challenged in a suit against a governor due to their impact on primarily
private relations. See, e.g., Shell Oil Co. v. Noel, 608 F.2d 208, 212 (1st Cir.
1979) (citing cases that rejected challenges to statutes that “determine[d]

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 8 of 25
the right of one private person to recover from another” or “set[] the
jurisdictional requirements for divorce,” among others). Since our
annexation statutes, as a whole, represent a unique area of the law that
primarily impacts public rather than private relations, the Governor’s
potential connection to Section 11.8 cannot be dismissed out of hand. This
is true because of the unique powers and responsibilities vested in the
office of the Governor by our state constitution.

2. Unlike other annexation statutes, the legislature did
not tie Section 11.8’s enforcement to remonstrances.
While annexations generally deal with public concerns, our annexation
statutes provide a method—remonstrance—by which owners of property
within the area to be annexed can challenge the annexation.2 See generally
I.C. §§ 36-4-3-11, -11.2, -11.3; I.C. § 36-4-3-13. The Governor argues that
this statutory remonstrance process proves that property owners—not the
Governor—enforce annexation laws, including Section 11.8. And in most
cases, this argument would certainly carry the day. However, Section 11.8
is not and could not be tied to the statutory remonstrance process, so
neither that process nor property owners control Section 11.8’s
enforcement.

On its face, Section 11.8 has no connection with the statutory
remonstrance process. It contains no provision that conditions its
application on the filing of a remonstrance petition. Instead, it flatly
declares that any introduced annexation ordinance falling within its scope
“is void and the annexation action is terminated.” I.C. § 36-4-3-11.8(d). The
lack of connection between Section 11.8 and the remonstrance process
stands in stark contrast to other annexation statutes. The only other
provision of our annexation law that declares an annexation ordinance
void does so only if a certain percentage of affected landowners sign a
written remonstrance petition. I.C. § 36-4-3-11.3(b). Similarly, the

2There are also other, limited ways to challenge an annexation. See, e.g., I.C. §§ 36-4-3-15.5, -
15.7. But neither party argues, and we do not find, that those methods are relevant here.

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provision allowing affected landowners to appeal an annexation to a court
requires a written remonstrance petition. I.C. § 36-4-3-11.3(c). The
legislature clearly knows how to provide for enforcement of annexation
statutes through the remonstrance process, but it did not do so with
Section 11.8.

Even if we were to ignore the legislature’s decision not to expressly
condition enforcement of Section 11.8 on a remonstrance proceeding,
interpreting Section 11.8 as being enforced through a remonstrance would
conflict with Section 11.8’s own language. Section 11.8 voids and
terminates specific annexation ordinances that were introduced but not
yet adopted. See I.C. § 36-4-3-11.8(b), (c), (d). Because Section 11.8 cuts off
a proposed annexation before the municipality’s legislative body has
formally adopted the annexation ordinance, it understandably speaks in
terms of terminating the annexation action. I.C. § 36-4-3-11.8(d) (declaring
the introduced ordinance “void” and the annexation action “terminated”).
But Section 11.8’s focus on terminating an annexation before the ordinance
has been adopted renders it incompatible with the remonstrance process
because a remonstrance requires an adopted annexation ordinance. A
remonstrance petition must include dated signatures of the remonstrators,
and a remonstrator cannot sign a petition before the municipality’s
legislative body adopts the annexation ordinance being challenged. See
I.C. § 36-4-3-11(d); I.C. § 36-4-3-11.2(c)(1), (e)(7); I.C. § 36-4-3-11.1(b), (c). In
short, Section 11.8 halts a proposed annexation before the annexation
ordinance has been adopted, precluding a remonstrance proceeding.
Therefore, we cannot accept the argument that the primary method for
enforcing Section 11.8 is in a remonstrance proceeding that Section 11.8
itself precludes. By decoupling Section 11.8 from the remonstrance
process, the legislature showed that Section 11.8 is different even from the
related statutes and normal procedures in the unique area of annexation
law.

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 10 of 25
 3. The Governor enforces Section 11.8 thanks to the
combination of his broad constitutional duties and
the statute’s one-of-a-kind nature, so Bloomington
can bring this suit.
Keeping in mind Section 11.8’s uncommon characteristics, we turn to
the specific question of whether the Governor plays a role in enforcing the
statute and, thus, whether he can be sued in this declaratory judgment
action. Bloomington supports its decision to bring its declaratory
judgment action against the Governor with two main arguments: first,
prior cases challenging the constitutionality of a statute in Indiana have
included the Governor as a defendant;3 and, second, the Constitution vests
the Governor with the executive power of the State and obliges him to
faithfully execute the law. The Governor disagrees, distinguishing
precedent and arguing that his broad constitutional duties do not give
him the ability to enforce Section 11.8. We agree with the Governor that
the precedent cited by Bloomington does not control here, but we find that
the Governor does enforce Section 11.8 thanks to the peculiar combination
of his constitutional authority and the unique nature of Section 11.8.

As to Bloomington’s first argument, prior cases do not address the
specific issue here and do not control. Bloomington acknowledges, as it
must, that Section 11.8 does not expressly confer duties on the Governor
or any other executive branch officials but that the statutes at the heart of
the precedent it cites did reference members of the executive branch. Br. of
Appellee, pp. 30–31 n.10 (discussing Stoffel v. Daniels, 908 N.E.2d 1260,

3Bloomington primarily relies on the Court of Appeals opinion in Stoffel v. Daniels, 908 N.E.2d
1260 (Ind. Ct. App. 2009). But it also cites six cases from this Court. See Bonney v. Ind. Fin.
Auth., 849 N.E.2d 473 (Ind. 2006); D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898 (Ind. 2003);
State v. Nixon, 270 Ind. 192, 384 N.E.2d 152 (1979); Whitcomb v. Young, 258 Ind. 127, 279 N.E.2d
566 (1972); Welsh v. Sells, 244 Ind. 423, 192 N.E.2d 753 (1963); Orbison v. Welsh, 242 Ind. 385, 179
N.E.2d 727 (1962).

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 11 of 25
1265, 1272 (Ind. Ct. App. 2009)).4 As a result, Bloomington’s cases did not
involve the Governor as the sole defendant; instead, they primarily
involved suits against the Governor and other executive branch officials
referenced in the challenged statute. See, e.g., Bonney v. Ind. Fin. Auth., 849
N.E.2d 473 (Ind. 2006) (naming Governor Daniels, the Indiana Finance
Authority, and the Indiana Department of Transportation, among others,
as defendants). And none of the cases considered whether the Governor,
specifically, should have been included as a defendant. See, e.g., Stoffel, 908
N.E.2d at 1271–72 (considering whether the plaintiff properly sued a
group of defendants, which included Governor Daniels and the Indiana
Department of Local Government Finance). Ultimately, most of the cases
Bloomington cites address situations when a plaintiff challenges a statute
by suing the Governor along with other executive branch officials
expressly referenced by the statute. But this case does not fit that mold,
and Bloomington’s precedent provides little help in determining whether
Bloomington can seek declaratory judgment here.

So, we move on to Bloomington’s second argument and consider how
Section 11.8 might implicate the Governor’s general constitutional power
and authority. A state official’s role in implementing or enforcing a statute
can arise from the statute itself or the general law. See Ex parte Young, 209
U.S. 123, 157 (1908) (“The fact that the state officer by virtue of his office
has some connection with the enforcement of the act is the important and
material fact, and whether it arises out of the general law, or is specifically
created by the act itself, is not material so long as it exists.”).5 In most

4Although Bloomington cited it for support of its suit against the Governor, we exclude
Whitcomb v. Young from this discussion of Bloomington’s precedent. Young is distinguishable
for another reason: the plaintiff sued Governor Whitcomb in his capacity as a member of the
Indiana State Election Board to obtain an interpretation of a constitutional amendment. 258
Ind. at 130, 279 N.E.2d at 569. Here, by contrast, Bloomington sued the Governor in his official
capacity as Governor to challenge a statute.
5Federal decisions in this area involve requirements that do not apply in Indiana state courts,
see U.S. Const. art. III, § 2 (providing the case-or-controversy requirement); U.S. Const. amend.
XI (limiting states’ amenability to suit in federal court), so we cannot import their holdings
directly into our analysis. However, the more general principles discussed by the federal
courts apply equally in Indiana.

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 12 of 25
situations, the general law provides an insufficient connection between
the Governor and enforcement of a particular statute to give rise to the
ripening seeds of a controversy required for a declaratory judgment
action. See Doe v. Holcomb, 883 F.3d 971, 976 (7th Cir.), cert. denied, 139 S.
Ct. 126 (2018) (quoting Shell Oil Co., 608 F.2d at 211) (stating, under the
federal standard, that “[t]he mere fact that a governor is under a general
duty to enforce state laws does not make him a proper defendant in every
action attacking the constitutionality of a state statute” (emphasis added)).
But under rare circumstances, unique aspects of the statute combine with
the general law to provide enforcement or implementation authority to
the Governor. See, e.g., Allied Artists Picture Corp. v. Rhodes, 679 F.2d 656,
665–66 n.5 (6th Cir. 1982) (finding Ohio’s governor a proper defendant
based on the Ohio Constitution and “the substantial public interest in
enforcing” the challenged legislation despite “the absence of specific state
enforcement provisions”); HRPT Props. Trust v. Lingle, 715 F. Supp. 2d
1115, 1127 (D. Haw. 2010) (finding Hawaii’s governor a proper defendant
based on her constitutional duty to faithfully execute the laws). This is one
such rare case.

Our Constitution provides that “[t]he executive power of the State shall
be vested in a Governor” who “shall take care that the laws are faithfully
executed.” Ind. Const. art. 5, §§ 1, 16. We have described these as broad,
general provisions of authority and obligation in the Governor. Tucker v.
State, 218 Ind. 614, 652–53, 656, 35 N.E.2d 270, 284, 286 (Ind. 1941). And
these broad provisions of power and duty include those incidental powers
and duties necessary to exercising executive power and carrying out the
Governor’s duties. Id. at 670–71, 35 N.E.2d at 291 (noting that the power to
appoint subordinate officers to carry out laws was “a necessary incident to
the power to execute the laws”). As a result, these provisions have been
found to support a Governor’s authority and duty to act to ensure the
proper execution of laws, even absent specific statutory language
directing the Governor to do so. See Cato v. Chaddock, 175 Ind. App. 514,
518, 373 N.E.2d 172, 175 (1978) (relying on the Governor’s constitutional
duty to faithfully execute the laws in affirming Governor Whitcomb’s
declaration of the effective date of the 1970 Census, despite finding no
specific statutory authority for him to make such a declaration).

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 13 of 25
 The two unique aspects of Section 11.8 discussed in Parts I.B.1. and
I.B.2. above bring the Governor’s executive authority and his faithful-
execution duty into play here. First, as an annexation statute, Section 11.8
deals with citizens’ “civil relation to certain public authority” rather than
specific private rights. Bradley, 764 N.E.2d at 215 (quoting Stilz, 55 Ind. at
523). In other words, Section 11.8 impacts citizens’ civil relationship to
counties, cities, towns, and the like—all subdivisions of the State. See, e.g.,
I.C. §§ 36-1-2-10, -11, -13, -23 (providing that counties, cities, and towns
are political subdivisions); City of Huntington v. N. Ind. Power Co., 211 Ind.
502, 519, 5 N.E.2d 889, 896 (1937) (“[A] municipal corporation is a
subordinate branch of the domestic government of the state . . . .”);
Applegate v. State ex rel. Pettijohn, 205 Ind. 122, 125, 185 N.E. 911, 912 (1933)
(“Counties are but subdivisions of the state . . . .”). As the constitutional
officer vested with the executive power of the State and the duty to
oversee the faithful execution of its laws, the Governor has an interest in
these relationships between the public and the State’s subdivisions.

Second, the legislature drafted Section 11.8 to apply to proposed
annexations before an annexation ordinance had been adopted,
preventing the use of the standard method of enforcing annexation law—
remonstrances. When remonstrances are available to enforce annexation
statutes, the Governor sees that the annexation laws as a whole (including
the provisions setting out annexation requirements and the remonstrance
provisions) are faithfully executed by allowing the remonstrance process
to play out. But the Governor cannot take this route when, as here, the
legislature precludes using the statutory remonstrance process to enforce
an annexation statute. In short, the legislature drafted Section 11.8 to
impact public rather than private relations at a chosen moment before
anyone could remonstrate to enforce the statute, and it created a situation
where the Governor was uniquely situated to exercise his executive power
and enforce the statute. Thus, under these extraordinary circumstances,
the Governor had enforcement authority under Section 11.8.

Based on this analysis, the Governor is a proper defendant here. The
unique features of Section 11.8 show that the Governor enforces the
statute pursuant to his general executive power and his duty to take care
that the laws are faithfully executed. Because the Governor enforces

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 14 of 25
Section 11.8 under these rare circumstances, a judgment in Bloomington’s
favor here will provide redress to the city by removing the statute as a
barrier to its proposed annexation.6 Therefore, Bloomington’s suit against
the Governor easily presents the ripening seeds of a controversy that our
Declaratory Judgments Act requires. We emphasize, however, that the
Governor’s argument will win in most cases—his general constitutional
powers and duties will not establish enough of a connection to a statute to
allow a suit like this one under most circumstances. But, given the one-of-
a-kind statute involved, the Governor’s constitutional authority and duty,
the significant injury suffered by Bloomington, and the ability to afford it
redress through declaratory judgment, we must reach this unusual result.

C. Prudential concerns involved in the Governor’s
argument do not render this case nonjusticiable but,
instead, compel us to reach the merits.
Notwithstanding our conclusions that the Governor enforces Section
11.8 and that Bloomington has satisfied the requirements of our
Declaratory Judgments Act, we have stated that “prudential concerns may
render a dispute nonjusticiable by the courts.” Berry v. Crawford, 990
N.E.2d 410, 417 (Ind. 2013). So, we continue our analysis of the Governor’s
justiciability argument and consider the prudential concerns involved in
this case.

Prudential concerns involving justiciability often arise in connection
with our separation-of-powers doctrine, and we have cited these concerns
to find an issue nonjusticiable in two recent cases. See Citizens Action Coal.
of Ind. v. Koch, 51 N.E.3d 236, 241–243 (Ind. 2016) (declining to define

6Since the Governor enforces the statute and is a party to this lawsuit, he will be bound by
this Court’s judgment. If we declare Section 11.8 unconstitutional here, the Governor will be
barred from enforcing it—even without an injunction. See Dep’t of Fin. Insts. v. Gen. Fin. Corp.,
227 Ind. 373, 86 N.E.2d 444, 447 (1949) (citation omitted) (“When the law is settled it will be
obeyed. It is therefore immaterial whether the proper proceeding is an application for a
restraining order or a petition for a declaratory judgment. A final interpretation of the law in
either form of proceeding would be binding upon these parties.”).

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 15 of 25
legislative “work product” for purposes of Indiana’s Access to Public
Records Acts because doing so would have interfered with the internal
workings of the legislative branch); Berry, 990 N.E.2d at 417–20 (declining
to weigh in on the House of Representatives’ discipline of some of its
members because doing so would have interfered in the internal workings
of the legislative branch). But prudential concerns need not be limited to
those related to separation of powers. They may also relate to judicial
economy and awareness of the pitfalls of a suggested course of action or
its alternatives.7 And here, we find four specific prudential concerns
relevant, which, rather than rendering the case nonjusticiable, actually
compel us to reach the merits.

First, requiring Bloomington to sue a different defendant would result
in substantial delay and cost to taxpayers, but we would ultimately reach
the same result as we do here: Section 11.8 would remain unconstitutional
special legislation. In such a case, Bloomington and the Attorney General
would present the same arguments regarding Section 11.8’s
constitutionality. See I.C. § 34-33.1-1-1; I.C. § 34-14-1-11. But everyone
would just have to wait longer to have the dispute resolved, and, in the
meantime, the Governor, Attorney General, Bloomington, and the courts
would continue devoting scarce public resources to the dispute. In the
end, with the same arguments before us, we would come to the same
conclusion we do below—that Section 11.8 is unconstitutional special
legislation—but only after everyone involved spent more time and public
funds on the case.

7 To be sure, the Berry Court held that “prudential concerns may render a dispute
nonjusticiable by the courts.” 990 N.E.2d at 417 (emphasis added). But it does not necessarily
follow, as the dissent concludes, that prudence is strictly “a ground for withholding merits
relief in cases otherwise within a court’s jurisdiction.” Post, at 7. Our consideration of
prudential concerns is necessary to determine whether judicial action is required here. And,
unfortunately, it is. The actions of the General Assembly stood in clear violation of the plain
language of the Indiana Constitution. Those actions injured Bloomington. And a refusal on
our part to address this injury—effectively creating a blueprint for the legislature to enact
allegedly unconstitutional laws beyond judicial review—would do lasting damage to our
system of government. Put differently, it would not be prudent.

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 16 of 25
 Second, even if a hypothetical suit against someone else could bring
some benefit, there is no other defendant to sue. A potential lawsuit
against the suggested alternative defendants—landowners in the
proposed annexation areas, the Monroe County Auditor, or the Monroe
County Surveyor—would not be ripe because the proposed annexation
ordinances have merely been introduced, not adopted. At this stage, it’s
unclear which, if any, of the proposed ordinances might have been
adopted or what changes might have been made to them before adoption.
Indeed, the City Council rejected the introduction of one proposed
ordinance, and the majority of the ordinances that were introduced faced
opposition from some council members. These uncertainties show that a
suit against landowners or county officials would not have presented the
required ripening seeds of a controversy.

Third, with no other defendant, Bloomington was forced to choose
between (a) bringing this declaratory judgment action against the
Governor, (b) violating the express terms of Section 11.8 by moving
forward with its annexation, or (c) accepting that the legislature may have
violated the Constitution in terminating the proposed annexation but that
there was nothing Bloomington could do about it. We cannot approve of
options (b) and (c). We share the concerns of our federal colleagues on the
Sixth Circuit that, “[w]ere this action unavailable to [Bloomington], [it]
would be unable to vindicate the alleged infringement of [its]
constitutional rights without first violating an [Indiana] statute . . . .” See
Allied Artists Picture Corp., 679 F.2d at 666 n.5. Such an outcome would not
only leave an alleged constitutional violation unaddressed but also create
a blueprint for the legislature to enact allegedly unconstitutional laws
beyond judicial review. Option (a), which Bloomington chose, and which
we find permissible under these circumstances, is the only way forward
here.

Fourth, and most importantly, having concluded that Bloomington’s
suit satisfies the requirements of our Declaratory Judgments Act,

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separation-of-powers principles compel us to reach the merits of this case.8
The dissent seems to view separation of powers as almost exclusively a
prohibition on action—a command that we stay out of our co-equal
branches’ spheres. We wholeheartedly agree that this command is an
extremely important part of our separation-of-powers doctrine. See Boehm
v. Town of St. John, 675 N.E.2d 318, 322 (Ind. 1996) (citation omitted)
(noting the risk that this Court could exceed the limits of its constitutional
power in trying to keep another branch within its limits). But that’s only
half the story. While separation of powers requires restraint in many
cases, it mandates judicial action in others.

As we’ve said before, “[t]he separation of powers provision exists not
only to protect the integrity of each branch of government, but also to
permit each branch to serve as an effective check on the other two.” State
v. Monfort, 723 N.E.2d 407, 413 (Ind. 2000). See also Horner v. Curry, 125
N.E.3d 584, 589 n.4 (Ind. 2019) (noting that separation of powers “works
both ways” in terms of restraint and action). Thus, “in exercising the
judicial function of government,” the judiciary has the power and “the
inevasible duty” in cases such as these “to declare legislative enactments
void when that body has, in such an enactment, gone beyond or outside of
the power granted to it.” Ellingham v. Dye, 178 Ind. 336, 387, 391, 99 N.E. 1,
19, 21 (1912). Accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–78
(1803) (noting that the federal legislature’s powers are limited by the
United States Constitution, “that an act of the legislature, repugnant to the
constitution, is void,” and that the judiciary has an obligation in cases and
controversies before it to declare unconstitutional laws as such). In fact,
the ability of an independent judiciary to check the other branches and
declare statutes unconstitutional “was one of the central principles
underlying the thinking of the framers of the Indiana Constitution and
also the Constitution of the United States.” Monfort, 723 N.E.2d at 413

8Article 3, section 1 of the Indiana Constitution provides that the “powers of Government are
divided into three separate departments; the Legislative, the Executive including the
Administrative, and the Judicial” and, thus, supplies the basis for our separation-of-powers
doctrine. See State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000).

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 18 of 25
(relying on The Federalist No. 78, at 426, 428–29 (E.H. Scott ed., 1894), and
Noble Cnty. Council v. State ex rel. Fifer, 234 Ind. 172, 181–82, 125 N.E.2d
709, 714 (1955)). And the ability of the judiciary to enforce separation of
powers by checking the other branches is even more important in a case—
such as this one—where a party alleges that a statute is unconstitutional
special legislation because preventing special legislation “was the most
potent argument” for adopting our current Constitution. See Herman &
Kittle Props., Inc., 119 N.E.3d at 80. Cf. Berry, 990 N.E.2d at 416–17 (relying
on cases from other jurisdictions finding questions to be justiciable when
legislative power granted in a constitution—as relevant here, the power to
legislate—is limited by other constitutional provisions—as relevant here, a
limitation on special laws).

In the end, while this Court exercises cautious restraint in checking the
other branches under separation-of-powers principles, “we do not permit
excessive formalism to prevent necessary judicial involvement. Where an
actual controversy exists we will not shirk our duty to resolve it.” Boehm,
675 N.E.2d at 322 (citation omitted). Bloomington’s declaratory judgment
action presents an actual controversy, and prudential concerns compel us
to resolve it.

II. Section 11.8 is unconstitutional special legislation.
Article 4, Section 23 of the Indiana Constitution places limits on special
legislation, “which is a law that ‘pertains to and affects a particular case,
person, place, or thing, as opposed to the general public.’” Herman & Kittle
Props., Inc., 119 N.E.3d at 78 (citation omitted). In relevant part, it provides
that “in all . . . cases where a general law can be made applicable, all laws
shall be general, and of uniform operation throughout the State.” Ind.
Const. art. 4, § 23. Bloomington contends that Section 11.8 violates Article
4, Section 23 because the legislature enacted Section 11.8 as a special law
when it could have enacted a general law. The Governor admits that
Section 11.8 is special legislation, but he defends Section 11.8’s
constitutionality, arguing that a general law could not be made applicable
here given certain aspects of Bloomington’s proposed annexation. In
resolving this disagreement, we first review the framework for

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 19 of 25
determining a law’s constitutionality under Article 4, Section 23, and then
we apply that framework to the facts here.

A. We recently clarified the framework for determining
whether a statute violates Article 4, Section 23.
Just last year we examined the development of our Article 4, Section 23
jurisprudence and clarified the broad framework applicable to challenges
under that provision. See generally Herman & Kittle Props., Inc., 119 N.E.3d
at 79–85. Under that framework, we begin our analysis by determining
“whether the law is general or special.” Id. at 82. Our next step depends on
the answer to that initial question: “if the law is general, we decide
whether it is applied generally throughout the State; but if the law is
special, we decide whether the law is nevertheless constitutionally
permissible.” Id. As we move through this framework, we keep in mind
the “overarching presumption that the statute is constitutional.” Id. at 84.
Since the parties here agree that Section 11.8 is special legislation, we focus
the remainder of our review of this framework on the specific analysis
involved in determining whether a special law is constitutional.

“[T]he constitutionality of special legislation hinges on the uniqueness
of the identified class and the relationship between that uniqueness and
the law.” Id. A special law is permissible “when an affected class’s unique
characteristics justify the differential treatment the law provides to that
class.” Id. But a special law is not permissible “when there are no unique
circumstances of an affected class that warrant the special treatment—
meaning that a general law could be made applicable.” Id.

Once a law is determined to be special, the parties bear alternating
burdens in connection with the question of the law’s constitutionality.
Initially, the proponent of the law must “clear a low bar” by
demonstrating a link between the alleged unique characteristics of the
class covered by the law and the legislative fix—i.e., the law’s special
treatment of that class. Id. If the proponent shows such a link, “then the
opponent of the legislation must show why the specified class’s
characteristics are not defining enough to justify the special legislation,”

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 20 of 25
essentially challenging the uniqueness of the class covered by the special
law. Id. at 85.

While the parties acknowledge this framework, they disagree as to
whether it controls here or whether we announced a rule approving of
special legislation regarding local government structure in Dortch v. Lugar,
255 Ind. 545, 266 N.E.2d 25 (1971). See Br. of Appellant, p. 30 (relying on
Dortch for the argument that “the legislature can enact special laws
directly affecting the structure of local governments”). Reading Dortch to
control this case with a bright-line rule overextends its holding and
overstates its position in our Article 4, Section 23 jurisprudence. Rather
than announcing a bright-line rule, Dortch rejected a special-law challenge
to the Unigov legislation, which affected only Indianapolis and Marion
County, because the population-based limitation to the law’s applicability
had a rational relationship to the legislature’s goal in passing the law. 255
Ind. at 552–53, 266 N.E.2d at 31–32. And, although we’ve noted that Dortch
came to the correct result, see Mun. City of S. Bend v. Kimsey, 781 N.E.2d
683, 693 (Ind. 2003), its focus on the rationality or reasonableness of a
law’s population-based limitation on applicability has been “replaced by a
more fine-tuned approach,” Herman & Kittle Props., Inc., 119 N.E.3d at 81.
See also Kimsey, 781 N.E.2d at 688–89 (noting Dortch’s position in a line of
cases focusing on this reasonableness inquiry but stating that “neither the
‘per se’ nor ‘reasonableness’ view of population categories is
determinative of constitutionality”). Thus, Dortch does not control this
case, and we apply the standard Article 4, Section 23 framework here.

B. Bloomington’s proposed annexation presents no unique
circumstances justifying Section 11.8’s special
treatment.

The parties agree that Section 11.8 is special legislation, so our task is to
determine whether it is nevertheless constitutional. As the proponent of
the law, the Governor offers two aspects of Bloomington’s attempted
annexation as unique characteristics justifying Section 11.8’s special
treatment: (1) the speed of the process despite opposition to the proposed
annexation; and (2) Bloomington’s consideration, in drawing the

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 21 of 25
annexation areas, of waivers that precluded property owners from
remonstrating against the annexation. We address each of these aspects in
turn.

The first characteristic offered to support Section 11.8’s constitutionality
is the speed of Bloomington’s proposed annexation, despite the opposition
of some members of the community. This characteristic is linked to
Section 11.8’s legislative fix by the argument that the statute “allows for
additional time to discern, plan, and implement any restructuring of local
governments in Monroe County.” Br. of Appellant, pp. 36–37. While this
may be a sufficient link for our purposes here, Bloomington shows that its
situation was not unique.

Had everything gone according to plan, Bloomington would have
completed the statutory annexation process in 133 days. This length of
time would have been in line with the detailed annexation schedule
provided by statute, which allows annexations to take place in 120 days.
See I.C. §§ 36-4-3-1.7, -2.1. Bloomington’s 133-day schedule also would
have been consistent with the City of Boonville’s 2017–2018 annexations,
which took 154 days. The speed of Bloomington’s proposed annexation
was not unique.

Similarly, opposition to Bloomington’s proposed annexation did not
render the situation unique. Bloomington presented evidence that affected
landowners commonly oppose proposed annexations. The legislature has
recognized this fact by providing for the statutory remonstrance process.
See generally I.C. §§ 36-4-3-11, -11.2, -11.3, -13. And our caselaw shows that
landowners do not shy away from challenging annexations. See, e.g., Town
of Brownsburg v. Fight Against Brownsburg Annexation, 124 N.E.3d 597 (Ind.
2019). Bloomington’s proposed annexation was not unique because some
members of the community opposed it.

Because Bloomington’s situation was not unique, the legislature could
have enacted a general law that “allows for additional time to discern,
plan, and implement any restructuring of local governments,” Br. of
Appellant, pp. 36–37, by increasing the statutory minimum amount of
time before an annexation can occur. In fact, the legislature has done it
before. See Pub. L. No. 248-1999, § 1, 1999 Ind. Acts 1722 (amending

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 22 of 25
Indiana Code section 36-4-3-2.1 and adding 90 days to the statutory
minimum amount of time for an annexation). The pace of and opposition
to Bloomington’s proposed annexation does not support the
constitutionality of this special legislation.

The second characteristic of the proposed annexation advanced to
justify Section 11.8’s special treatment is Bloomington’s consideration of
waivers of remonstrance, some of which were old and unrecorded,9 in
drawing its annexation areas to minimize opposition. The link presented
between this characteristic and the legislative fix is that the legislature
could have concluded that Bloomington was misusing the process and
decided to halt the proposed annexation. But Bloomington again shows
that its situation was not unique. Bloomington presented evidence that
“remonstrance waivers are commonly discussed and incorporated into
determining which areas are suitable to annex by the city or town.”
Appellant’s App. Vol. XX, p. 186, ¶ 7. And Boonville’s 2017–2018
annexation included many properties subject to waivers of remonstrance,
some of which were old and long unrecorded. Because Bloomington’s use
of waivers of remonstrance was not unique, the legislature could have
regulated the use of such waivers with a general law. Again, the
legislature itself provides us with an example. See Pub. L. 257-2019, § 112,
2019 Ind. Acts 3419 (amending Indiana Code section 36-4-3-11.7 to limit
the use of old and unrecorded waivers of remonstrance). Bloomington’s
use of waivers of remonstrance does not support Section 11.8’s
constitutionality.

In short, “there are no unique circumstances of [Bloomington’s
proposed annexation] that warrant the special treatment—meaning that a
general law could be made applicable.” Herman & Kittle Props., Inc., 119
N.E.3d at 84. If the legislature were truly concerned with the pace and
mood of Bloomington’s proposed annexation or Bloomington’s use of

9Under certain circumstances when extending sewer lines to property, a municipality must
obtain a waiver of the right to remonstrate that runs with the property by binding successors
in title of the property owner. I.C. § 36-9-22-2(c). This can sometimes lead to complications in
the record-keeping process.

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 23 of 25
remonstrance waivers, that concern would have applied equally across
Indiana. But the legislature did not pass a law prohibiting such activity by
every municipality in the state. Instead, it singled out Bloomington. Under
the circumstances here, that special treatment doled out by Section 11.8 is
unconstitutional.

Conclusion
This declaratory judgment action involves the following two issues:
whether Bloomington properly sought declaratory relief from the
Governor, and whether Section 11.8 is unconstitutional. We find that the
Governor, in light of his constitutional authority and duty, does enforce
Section 11.8 and Bloomington can bring its declaratory judgment action
against him here because of the unique way in which the legislature
drafted the statute, and because prudential concerns compel us to reach
the merits. We also find that the legislature drafted Section 11.8 as a
special law when a general law could have been made, so Section 11.8
violates Article 4, Section 23’s limitation on special laws. Accordingly, we
affirm the trial court’s order granting summary judgment and declaratory
relief to Bloomington and ruling that Section 11.8 constitutes
impermissible special legislation in violation of Article 4, Section 23 of the
Indiana Constitution.

Rush, C.J., concurs.
David, J., concurs in result.
Slaughter, J., dissents with separate opinion in which Massa, J., joins.

ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana

Thomas M. Fisher
Solicitor General

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 24 of 25
Kian J. Hudson
Deputy Solicitor General

Julia C. Payne
Deputy Attorney General
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Michael Rouker
City Attorney

Larry D. Allen
Assistant City Attorney
Bloomington, Indiana

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 25 of 25
Slaughter, J., dissenting.

Rejecting Governor Holcomb’s argument that he is the wrong
defendant in this declaratory-judgment suit, the Court holds that broad
principles of standing do not apply here but prudential considerations do.
I respectfully disagree on both points and would not give our state
constitution’s separation-of-powers mandate such short shrift under either
doctrine. Our constitution confines courts to deciding cases over which
they have jurisdiction. A justiciable case—one suitable for judicial
resolution—has essential constitutional requirements like standing and
nonessential considerations like prudence. Today’s decision conflates the
essential with the nonessential and thus erodes separation of powers.
When a plaintiff lacks standing, any court action exceeds our
constitution’s grant of judicial power. Prudence, in contrast, presumes
standing and permits a court to skirt a case over which it has jurisdiction.
It does not authorize a court to proceed where jurisdiction is lacking.
Simply put, Bloomington lacks standing here, which means the courts lack
jurisdiction, and prudential considerations cannot fix this fatal flaw.

Although the Court invokes prudential concerns as an independent
basis for reaching the merits, what animates the Court’s analysis is its
finding that the City has standing. Standing requires a plaintiff to prove
injury, causation, and redressability in all cases, including actions for
declaratory relief. The Court’s contrary decision contravenes both our case
law on declaratory judgments and our constitution’s structural limits on
judicial power. And the Court’s rationale that a declaratory judgment
against the governor on this record will redress the City’s injury depends
on a view of executive power that is deeply flawed. Under the Court’s
conception, the governor’s duty to “take care” that the laws are faithfully
executed is subject to judicial and legislative meddling. This interpretive
approach to Article 5, Section 16 purports to empower the governor to
enforce statutes over which he claims no authority when the courts say
so—thus requiring that he defend unwelcome lawsuits—yet leaves him
vulnerable to having his inherent powers rescinded or reassigned when
the legislature says so. I cannot subscribe to a view of executive power in
which the governor’s “take care” authority serves as neither his shield nor
his sword.
 I

Our constitution divides governmental powers among the legislative,
executive, and judicial departments and forbids any official in one
department from exercising the functions of another, except as the
constitution expressly permits. See Ind. Const. art. 3, § 1. In allocating
these powers, the constitution charges courts with exercising the “judicial
power”, id. art 7, § 1, which confides in courts the power to “resolv[e] real
controversies”. Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995). Stated
differently, judicial power “is the power to resolve actual disputes
between adverse parties by issuing binding decrees that pronounce the
parties’ rights and responsibilities and afford meaningful relief to the
prevailing party.” Seo v. State, 148 N.E.3d 952, 969 (Ind. 2020) (Slaughter,
J., dissenting); see also Pence, 652 N.E.2d at 488 (contrasting “real cases”
with “abstract speculation”).

Standing protects separation of powers by preventing courts from
deciding matters properly left to the executive or the legislature. Horner v.
Curry, 125 N.E.3d 584, 589 (Ind. 2019) (“[Standing] is a vital element in the
separation of powers”.); Allen v. Wright, 468 U.S. 737, 752 (1984) (Standing
is “built on a single basic idea—the idea of separation of powers.”). By
requiring the plaintiff to prove actual injury, causation, and redressability,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), standing “limits
the judiciary to resolving concrete disputes between . . . litigants”. Horner,
125 N.E.3d at 589; Seo, 148 N.E.3d at 969 (“[S]tanding . . . ensures that a
judicial decree redresses an actual injury attributable to the defendant’s
wrong.”). These requirements are especially important where, as here, the
legal challenge concerns the constitutionality of another branch’s act.
Raines v. Byrd, 521 U.S. 811, 819–20 (1997) (describing “especially
rigorous” standing analysis when a court decides whether action by
another branch of government is unconstitutional). A rigorous approach
to standing does not abdicate judicial duties but acknowledges the
important though limited role of courts in our constitutional system.
Employed correctly, standing confines courts to their proper role and thus
protects the delicate balance among the three co-equal departments of
state government.

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 2 of 8
 Although the Court attempts to frame this issue as the Governor’s
“very specific, narrow attack on the justiciability of this case”, ante, at 6,
his litigation approach affects neither the outcome nor the analysis.
Standing is a jurisdictional question. Pence, 652 N.E.2d at 488; Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 86, 103–04 (1998). Thus, we can, and
should, raise questions of standing ourselves before reaching the merits.
Horner, 125 N.E.3d at 592 (recognizing standing as a “threshold matter”);
Pence, 652 N.E.2d at 487 (providing that “threshold question of standing”
precedes merits discussion); see Steel Co., 523 U.S. at 91–93 (discussing
well-established duty to raise constitutional standing questions sua
sponte). Despite the Court’s proclamation that “broad principles of
standing” do not apply here, the opposite is true. Broad standing
principles apply in every case.

The Court shrugs off standing by invoking a view of the Declaratory
Judgment Act that requires only a plaintiff’s “substantial present interest
in the relief sought” and the “ripening seeds of a controversy”. Ante, at 7.
Yet the Act speaks only to a court’s ability to determine the legal rights
between parties: “Courts . . . have the power to declare rights, status, and
other legal relations”. Ind. Code § 34-14-1-1. The Act is not an independent
basis for exercising judicial power outside our limited constitutional role.
And we have held as much. “To invoke the jurisdiction of the court under
the declaratory judgment statute, there must be an actual, existing
justiciable controversy between the parties”. City of Mishawaka v. Mohney,
156 Ind. App. 668, 673, 297 N.E.2d 858, 860 (1973) (cleaned up).

A

Standing’s first requirement is that the plaintiff suffer an injury.
Without injury, there is no proper plaintiff, no actual controversy, and no
jurisdiction. See Pence, 652 N.E.2d at 488. In a typical case, the injury has
already occurred. But the Declaratory Judgment Act contemplates
declaring parties’ rights anticipatorily if the likelihood of breach and
resulting injury, though not fully matured, are imminent—or, in the
words of the Act, “whether or not further relief is or could be claimed.”
I.C. § 34-14-1-1. Shortly after the Act took effect, we explained that courts
can adjudicate claims under the Act while staying within their

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 3 of 8
constitutional mandate by hearing cases where “an actual controversy
exists between parties”. Rauh v. Fletcher Sav. & Tr. Co., 207 Ind. 638, 642,
194 N.E. 334, 336 (1935). And this was true although no wrong had yet
occurred. Id. at 335. Thus, a plaintiff facing an imminent breach can bring
a declaratory-judgment suit to define each party’s rights before a breach
occurs. And our Court, recognizing that breach and injury can be
anticipatory, has refined our standing requirements for such suits but not
eliminated them. Thus, Rauh explains that a plaintiff’s claim under the Act
requires the “ripening seeds” of a controversy, along with the plaintiff’s
“substantial present interest” in the relief sought. Id. at 335.

We used these very terms to discuss the plaintiff’s injury in Indiana
Education Employment Relations Board v. Benton Community School
Corporation, 266 Ind. 491, 496–97, 365 N.E.2d 752, 754–55 (1977). Benton
involved a school corporation’s constitutional challenge to a statute
permitting public employees to organize for collective-bargaining
purposes, and the named defendants included executive-branch officials
charged with enforcing the statute. Id. at 753. A labor union intervened
and argued the school district was “neither injured” nor threatened “with
injury sufficient to pose a justiciable controversy”. Id. at 754. On appeal,
we rejected the labor union’s arguments and, on the merits, held the
statute invalid. Id. at 760. In the process, we said that a plaintiff meets the
injury requirement by showing the “ripening seeds of a controversy” in
which it has a “substantial present interest”. Id. at 754–55.

Here, the parties and the Court agree that the injury element is satisfied
because the challenged statute prevents the City from carrying out its
proposed annexation. Thus, the issue of the statute’s constitutionality
presents a sufficiently ripened controversy in which the City has a
substantial present interest. But these two aspects of injury, while
necessary, are not sufficient for courts to exercise jurisdiction under the
Act. We must ask not only whether we have the correct plaintiff, but also
whether we have the correct defendant.

B

Standing’s other two requirements—causation and redressability—
focus on the defendant. Causation and redressability are, to be sure,

Indiana Supreme Court | Case No. 19S-PL-304 | December 15, 2020 Page 4 of 8
distinct elements, but they are two sides of the same coin. Taken together,
they require that the plaintiff’s injury be “fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the
requested relief.” Allen, 468 U.S. at 751.

Without explanation, the Court ignores causation and holds that a
declaratory judgment here will redress the City’s injury. It is not clear why
the Court discusses redressability at all if it believes standing in
declaratory-judgment actions requires only an injury. The Court offers no
answer. But its analysis, in any event, fails as a matter of logic and law.
Without knowing whether the defendant caused the harm, a court cannot
determine whether the relief sought against the defendant will likely
redress the plaintiff’s harm. The Court’s reliance on Benton does not
support today’s conclusion that general standing requirements of injury,
causation, and redress do not apply to declaratory-judgment suits. We
limited our discussion in Benton to injury not because it is the only
requirement for maintaining a declaratory-judgment suit, but because
injury was the only requirement at issue there. No one in Benton disputed
that the named defendants enforced the statute or that a favorable
judgment against them would redress the plaintiff’s complained-of injury.

Elsewhere, we have rejected the view that some lawsuits have one set
of justiciability criteria and declaratory-judgment suits have another,
expressly requiring causation and confirming the necessity of a proper
defendant in a declaratory-judgment suit. See Bd. of Comm’rs of Union
Cnty. v. McGuinness, 80 N.E.3d 164, 168 (Ind. 2017). In McGuinness, we
applied our “general rule of standing”, which includes the requirement of
a “direct injury as a result of the [defendant’s] complained-of conduct”,
and affirmed the dismissal of Union County’s request for declaratory
relief for lack of standing. Id. (emphasis added). What we held in
McGuinness remains true today: the general requirements of standing—
including causation—apply in declaratory-judgment suits.

The Act itself underscores the importance of the causation element. It
speaks of “legal relations”, I.C. § 34-14-1-1, and is concerned with
“controversy between the parties”. Mishawaka, 297 N.E.2d at 860.
Declaring the legal relations between parties presupposes that one party

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has caused, or is about to cause, harm to another party. Without a link
between the defendant’s conduct and the plaintiff’s injury, the parties
would have nothing of legal import between them for a court to
adjudicate. Thus, the Act does not displace causation but rests on it.

C

Questions of causation and redressability here turn on whether the
governor enforces the disputed statute. If he does not enforce it, he cannot
cause the resulting injury, and a judgment against him will not provide
redress. The Court addresses enforcement in connection with the
supposed “uniqueness” of both the governor’s constitutional role and the
disputed statute. Yet the disputed statute mentions neither the governor
nor any subordinate official accountable to him. The Court nevertheless
holds that the statute somehow gives the governor a special, one-time-
only enforcement power, relying on the statute’s structure and the
governor’s constitutional duty to “take care that the laws are faithfully
executed.” Ind. Const. art. 5, § 16. The plainest reading of “the laws” is
that it means all the laws, including the disputed annexation law. I agree
with the Court that the governor enjoys inherent powers beyond those the
legislature has conferred expressly. But the Court’s application fails to
embrace a robust view of this principle. To the contrary, the Court says
today’s “unusual result” is prompted by the “one-of-a-kind statute
involved”. Ante, at 15. In other words, the take-care clause is the expedient
by which the Court makes the governor a defendant of last resort.

The implications of the Court’s view are both troubling and far-
reaching. Under the Court’s conception, a governor’s take-care power is
not durable but fleeting. It exists only if the legislature has not stripped it
from him. The governor has such authority, in other words, only if the
legislature lets him keep it. If the legislature elects to confer enforcement
authority in someone else—remonstrators, the attorney general, some
other “enforcer”—then the governor has no such power. But that cannot
be right. A constitutional power—one conferred by our organic law—is
not subject to the legislature’s whim. Just as constitutional rights are
inviolable and not subject to legislative abrogation, the same is true of the
constitutional powers conferred upon coordinate branches of state

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government. The legislature can no more rescind or rewrite the governor’s
take-care power than the governor can repeal the legislature’s power of
the purse.

II

The Court’s final foray into separation of powers holds that prudential
concerns compel the Court to reach the merits of the City’s claim. Yet
invoking prudential concerns to justify awarding relief to the City has
things backward. Justiciability presupposes that jurisdiction is secure and
asks whether courts should nevertheless decline to reach the merits
because of other policy considerations, like comity to another branch. As
we have held, “prudential concerns may render a dispute nonjusticiable
by the courts.” Berry v. Crawford, 990 N.E.2d 410, 417 (Ind. 2013).
“Prudence”, then, is a ground for withholding merits relief in cases
otherwise within a court’s jurisdiction; it is not a basis for awarding relief
in cases over which a court lacks jurisdiction. Prudence does not counsel
that where jurisdiction is absent due to lack of standing, we should reach
the merits anyway because the case is sufficiently important. The Court
does not acknowledge this key difference, despite citing only cases where
prudence rendered issues nonjusticiable. Ante, at 15–16. The problem with
the Court’s view of justiciability is that by throwing off the structural
shackles that limit judicial power, we no longer confine ourselves to
resolving actual disputes. Instead, we suffer the predictable mission creep
of expanding our portfolio by issuing advisory opinions, in violation of
separation-of-powers principles that keep courts—and all departments of
state government—in their place.

Despite this threat to our constitutional structure, the Court says that
separation-of-powers principles “compel us” to decide the merits of the
City’s claim. Ante, at 19. The Court also commends itself for its “cautious
restraint” in enforcing these principles. Ibid. But there is nothing
“restrained” about today’s decision, which is a full-throated exercise of
judicial power. Despite the Court’s assurance that the duty to “stay out of
our co-equal branches’ spheres … is an extremely important part of our
separation-of-powers doctrine”, it justifies today’s decision by observing
that judicial self-restraint is only “half the story”. Ante, at 18. That is

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certainly true, and I do not quarrel with the Court’s view that the story’s
other half is that the judiciary has an affirmative duty to curb unlawful
action by the other branches. But our affirmative duty to ensure other
branches stay within the law comes with its own set of principles—the
first of which is to ensure that a case is properly before us. That is what
separation of powers means. It is not a blank check giving courts
unfettered authority to ensure other branches toe the line. We have our
own, independent obligation to heed that line ourselves. Unfortunately,
we cross that line today.

* * *

Under my proposed framework, the governor might well be a proper
defendant in a declaratory-judgment action if his enforcement of an
unconstitutional statute were actual or imminent. I could accept this
outcome if required by a faithful application of our standing principles—
all of them—and a fair reading of the take-care clause. The Court’s
approach, however, is neither. The Court says our standing requirements
do not apply. And it fails to adopt a straightforward reading of the take-
care clause. In one fell swoop, the Court assumes the power to hold the
governor accountable for laws as it sees fit while hobbling the governor’s
exercise of his own take-care power.

Because our decision cannot be reconciled with the structural limits on
judicial power compelled by Article 3, Section 1, and the governor’s grant
of power under Article 5, Section 16, I respectfully dissent.

Massa, J., joins.

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