ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
FOUNDATIONS OF EAST CHICAGO, INC. CITY OF EAST CHICAGO
Peter J. Rusthoven James A. Knauer
Mark J. Crandley William Bock, III
Deborah Pollack-Milgate Steven E. Runyan
Paul L. Jefferson Indianapolis, Indiana
Indianapolis, Indiana
STATE OF INDIANA
ATTORNEYS FOR AMICI CURIAE Gregory F. Zoeller
SAINT STANISLAUS CHURCH AND SCHOOL, Attorney General of Indiana
THE TWIN CITY MINISTERIAL ALLIANCE, AND
THE NORTHWEST INDIANA FEDERATION, Thomas M. Fisher
F/K/A INTERFAITH FEDERATION Solicitor General of Indiana
Kathleen A. DeLaney
Amanda Couture Heather L. Hagan
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
FILED
NEIGHBORS INCORPORATED OF HAMMOND,
INDIANA, ST. CATHERINE HOSPITAL, INC.,
WORKFORCE DEVELOPMENT SERVICES, INC.,
CALUMET COLLEGE OF ST. JOSEPH, INC., Sep 16 2010, 12:14 pm
JANELLE SCOTT, AND
THE HON. WILLIAM H. HUDNUT CLERK
Stephen J. Peters of the supreme court,
court of appeals and
tax court
David I. Rubin
Indianapolis, Indiana
In the
Indiana Supreme Court
No. 49S02-0908-CV-00383
FOUNDATIONS OF EAST CHICAGO, INC.,
SUCCESSOR BY MERGER TO EAST CHICAGO
COMMUNITY DEVELOPMENT FOUNDATION,
INC. AND TWIN CITY EDUCATION
FOUNDATION, INC.,
Appellant (Plaintiff below),
v.
CITY OF EAST CHICAGO,
Appellee (Defendant below),
and
STATE OF INDIANA,
Appellee (Intervenor-Defendant
below).
Appeal from the Marion Superior Court, No. 49D13-0705-PL-019348
The Honorable S.K. Reid, Judge
On Petition for Rehearing
September 16, 2010
Shepard, Chief Justice.
The present appeal concerns the constitutionality of a 2007 amendment to Indiana’s
gaming law that the City of East Chicago has contended authorizes it to redirect to itself,
unilaterally, certain revenue from the riverboat gaming licensee operating in East Chicago
dedicated in support of economic development.
We earlier declined to address the constitutionality of that amendment after concluding
that there was a nonconstitutional basis for resolving the instant dispute. We rejected the
arguments advanced by appellant Foundations of East Chicago that the amendment impaired its
contract rights. We held instead that the amendment merely recognized what had been true
before its adoption: that at least within certain bounds the City was free to change its mind about
the local development agreement it had consummated with the original license applicant, but that
the flow of funds in support of local economic development was governed by the license issued
by the Indiana Gaming Commission and that alteration of this distribution was within the
authority, judgment, and supervision of the Commission. Foundations of East Chicago v. City of
East Chicago, 927 N.E.2d 900 (Ind. 2010).
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By way of petition for rehearing, Foundations reports that even before our decision had
been certified the City moved the trial court to terminate the escrow account into which the
licenseholder’s economic development contributions have been deposited and return the balance
in the account to the City of East Chicago. (Foundations Add. Ex. A.) This motion was, of
course, premature under the appellate rules. Ind. Appellate Rule 65(E) (“[P]arties shall not take
any action in reliance upon the opinion or memorandum decision [by a court on appeal] until the
memorandum or decision is certified.”). The trial court rightly denied the City’s request on that
ground alone.
Even if timely, however, the request that the trial court order the economic development
funds redirected to the City on the basis of its ordinance and the 2007 amendment fell within the
core of our decision in this case, and that decision was adverse to the City’s position that it
possessed unilateral authority to redirect the funds. Thus, the City’s motion for an order
directing that the escrowed funds be transferred to the City should be denied on its merits if
timely filed.
We grant rehearing for purposes of this clarification of our mandate, and otherwise leave
intact our original opinion.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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