ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEYS FOR APPELLEE
Nancy A. McCaslin INDIANA DEPT. OF MICHIGAN SOUTHERN
RAILROAD
McCaslin & McCaslin TRANSPORTATION COMPANY
Elkhart, Indiana Steve Carter William G. Lavery
Attorney General Ian J. Forte
Whisler & Lavery
Janet L. Parsanko Elkhart, Indiana
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
STATE OF INDIANA ON THE ) Supreme Court No.
RELATION OF JACK P. CITTADINE, ) 20S03-0306-CV-260
Petitioner/Appellant, )
Relator Below )
) Court of Appeals No.
v. ) 20A03-0010-CV-395
)
INDIANA DEPARTMENT OF )
TRANSPORTATION, )
Respondent/Appellee, )
Respondent Below )
)
MICHIGAN SOUTHERN RAILROAD )
COMPANY, et. al., )
Respondent/Appellees, )
Intervenors Below )
________________________________________________
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable L. Benjamin Pfaff, Judge
Cause No. 20D01-0008-CP-00547
________________________________________________
On Petition To Transfer
June 24, 2003
DICKSON, Justice
The relator-appellant Jack Cittadine appeals from the trial court's
denial of his petition for an emergency and permanent writ of mandamus to
require the Indiana Department of Transportation ("INDOT") to enforce
Indiana's Clear View Statute[1] against Michigan Southern Railroad
("Michigan Southern") and any other railroad in violation of the
statute.[2] The Court of Appeals affirmed, finding that Cittadine lacked
standing to bring this action. Cittadine v. Indiana Dept. of Transp., 750
N.E.2d 893, 896 (Ind. Ct. App. 2001). We grant transfer to acknowledge the
availability of the public standing doctrine in Indiana courts.
Our standing requirement is a matter of Indiana jurisprudence. The
judicial doctrine of standing is intended to assure that litigation will be
actively and vigorously contested. Schloss v. City of Indianapolis, 553
N.E.2d 1204, 1206 (Ind. 1990). It focuses on whether the complaining party
is the proper person to invoke the court's power. Id. Unlike the language
of Article III, Section 2 of the United States Constitution, the Indiana
Constitution contains no "case or controversy" requirement. We have
observed that an analogous function is fulfilled by the distribution of
powers
provision in Article 3, Section 1, of the Indiana Constitution.[3] See
Dept. of Environmental Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331
(Ind. 1994). While noting this source of judicial restraint, however, we
stated: "While this Court respects the separation of powers, we do not
permit excessive formalism to prevent necessary judicial involvement.
Where an actual controversy exists we will not shirk our duty to resolve
it." Id. at 337.
Under our general rule of standing, only those persons who have a
personal stake in the outcome of the litigation and who show that they have
suffered or were in immediate danger of suffering a direct injury as a
result of the complained-of conduct will be found to have standing. Oman
v. State, 737 N.E.2d 1131, 1135 (Ind. 2000); Hammes v. Brumley, 659 N.E.2d
1021, 1029-30 (Ind. 1995); Shourek v. Stirling, 621 N.E.2d 1107, 1109 (Ind.
1993); Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985). Absent this
showing, complainants may not invoke the jurisdiction of the court.
Higgins, 476 N.E.2d at 101. It is generally insufficient that a plaintiff
merely has a general interest common to all members of the public. Terre
Haute Gas Corp. v. Johnson, 221 Ind. 499, 505, 45 N.E.2d 484, 486 (1942).
Cittadine seeks to avoid this general rule by invoking the public
standing exception. He does not contend that he has suffered a specific
injury, but argues that, because the object of the mandate is to procure
the enforcement of a public duty, he has standing under Indiana's public
standing doctrine. Br. of Appellant at 6. As we recently noted in
Schloss:
Indiana cases recognize certain situations in which public rather than
private rights are at issue and hold that the usual standards for
establishing standing need not be met. This Court held in those cases
that when a case involves enforcement of a public rather than a
private right the plaintiff need not have a special interest in the
matter nor be a public official.
Schloss, 553 N.E.2d at 1206 n.3 (quoting Higgins, 476 N.E.2d at 101).
Specifically, the public standing doctrine eliminates the requirement that
the relator have an interest in the outcome of the litigation different
from that of the general public. Higgins, 476 N.E.2d at 101.
The public standing doctrine has been recognized in Indiana case law
for more than one hundred and fifty years. In Hamilton v. State ex rel.
Bates, 3 Ind. 452 (1852), a citizen and taxpayer of Marion County urged
that a 15% increase in the county's land valuation by the State
Equalization Board was invalid because it was made in the absence of a
representative from the Sixth District. Ordering a peremptory mandamus to
issue commanding the Marion County Auditor to disregard the increase, this
Court addressed the relator's right to bring the claim:
Were this a case merely for private relief, the relator would have to
show some special interest in the subject-matter. But here the case
is different. The defendant, who was County Auditor, refused to issue
the legal duplicate for the collection of the taxes, and a mandamus
was applied for to compel him to discharge this duty of his office.
It is a case for the enforcement, not of a private, but of a public
right; and it is not necessary, in such cases, that the relator should
have a special interest in the matter, or that he should be a public
officer. That the defendant should discharge, correctly, the duties
of his office, was a matter in which Bates, as a citizen of the
county, had a general interest; and that interest was, of itself,
sufficient to enable him to obtain the mandamus in question, and have
his name inserted as the relator.
Id. at 458. Similarly, in Bd. of Comm'rs of Decatur County v. State ex
rel. Hamilton, 86 Ind. 8 (1882), this Court stated that:
[W]here the question is one of public concern, and the object of the
mandate is to procure the enforcement of a public duty, the relator
need not show that he has any legal or special interest in the result
sought to be accomplished. In such a case it is only necessary that
the relator shall be a citizen, and as such interested in the
execution of the laws.
Id. at 12-13. In Wampler v. State ex rel. Alexander, 148 Ind. 557, 47 N.E.
1068 (1897), the Court expressed the principle as follows:
Where the question involved in a mandamus proceeding is of a public
concern, as is the one herein, and the object of the action is to
enforce the performance of a public duty or right in which the people
in general are interested, the applicant for the writ is not required
to show any legal or special interest in the result sought to be
obtained.
Id. at 571-72, 47 N.E. at 1072. In determining that "the relators are
shown to have the requisite degree of interest to enable them to maintain
this action[,]" the Court relied not upon their status as trustees, but as
citizens "interested in common with other citizens in the execution of the
law." Id. at 572, 47 N.E. at 1071-72. See also, Brooks v. State, ex rel.
Singer, 162 Ind. 568, 70 N.E. 980 (1904); Meyer v. Town of Boonville, 162
Ind. 165, 70 N.E. 146 (1904); Zuelly v. Casper, 160 Ind. 455, 67 N.E. 103
(1903); State ex rel. Cutter v. Kamman, 151 Ind. 407, 51 N.E. 483 (1898);
Bd. of Comm'rs of Clarke County v. State ex rel. Lewis, 61 Ind. 75 (1878);
Bd. of Comm'rs of Clay County v. Markle, 46 Ind. 96 (1874).
In addition to cases involving the enforcement of a public right or
duty, the principles embodied in the public standing doctrine have also
frequently been applied in cases challenging the constitutionality of
governmental action, statutes, or ordinances. In Bd. of Comm'rs of Clay
County v. Markle, 46 Ind. 96 (1874), nine residents, citizens, taxpayers,
and voters charged that a statute and county-seat relocation proceedings
predicated thereon were unconstitutional. Id. at 100. In response to the
defendants' claims that the plaintiffs' injuries were in common with other
taxpayers, citizens, and voters of the county, the Court analyzed not only
Indiana case law, but also that of Iowa,[4] Illinois,[5] Maryland,[6] and
New Hampshire,[7] concluding that "remedy may be had by any tax-payer in
his own name." Id. at 104 (citing City of Lafayette v. Cox, 5 Ind. 38
(1854); Oliver v. Keightley, 24 Ind. 514 (1865)). Similarly, in Brooks v.
State, ex rel. Singer, 162 Ind. 568, 70 N.E. 980 (1904), this Court
addressed the constitutionality of the legislative apportionment act of
1903 upon the request of a resident, citizen, and voter of Ripley County.
Id. at 570, 70 N.E. at 980. The Court stated:
We entertain no doubt of the right of the relator to maintain this
action. Every male inhabitant of the State, over the age of twenty-
one years at the time the last preceding enumeration of such
inhabitants was taken, has a direct interest in the constitutional
apportionment of senators and representatives throughout the State,
and if, by an apportionment act, his rights in this respect are denied
or impaired, he may obtain redress by proper action in the courts.
Id. at 577, 70 N.E. at 983. In Davis Const. Co. v. Bd. of Comm'rs of Boone
County, 192 Ind. 144, 132 N.E. 629 (1921), a township resident and taxpayer
challenged both a county contract and the act of 1919 upon which it was
based. The Court rejected the Board of Commissioners' argument that the
taxpayer had no standing to challenge the statute's constitutionality:
And a taxpayer clearly has sufficient interest to question the
constitutionality of the statute under which it is sought to impose a
burden upon the property of a taxing district in which he lives and
owns property subject to assessment, where the action seeking to
impose a burden under such statute remains otherwise undefended.
Id. at 147, 132 N.E. at 630. The public standing doctrine was also applied
to permit constitutional challenges in Graves v. City of Muncie, 255 Ind.
360, 264 N.E.2d 607 (1970), Mitsch v. City of Hammond, 234 Ind. 285, 125
N.E.2d 21 (1955), Zoercher v. Agler, 202 Ind. 214, 172 N.E. 186 (1930),
Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912), Fesler v. Brayton, 145
Ind. 71, 82, 44 N.E. 37, 40 (1896), and Denney v. Balser, 144 Ind. 503, 42
N.E. 929 (1895).
Public standing principles have also been applied to permit numerous
actions challenging various governmental activities or ordinances on
grounds other than constitutionality. See, e.g., Miller v. City of
Evansville, 244 Ind. 1, 189 N.E.2d 823 (1963); Hamer v. City of Huntington,
215 Ind. 407, 21 N.E.2d 594 (1939); Noble v. Davison, 177 Ind. 19, 96 N.E.
325 (1911); Jordan v. City of Logansport, 171 Ind. 280, 86 N.E. 47 (1908);
Meyer v. Town of Boonville, 162 Ind. 165, 70 N.E. 146 (1904); Scott v. City
of Laporte, 162 Ind. 34, 68 N.E. 278 (1903); Bd. of Comm'rs of Owen County
v. Spangler, 159 Ind. 575, 65 N.E. 743 (1902); Myers v. City of
Jeffersonville, 145 Ind. 431, 44 N.E. 452 (1896); Bd. of Comm'rs of Henry
County v. Gillies, 138 Ind. 667, 38 N.E. 40 (1894); Town of Winamac v.
Huddleston, 132 Ind. 217, 31 N.E. 561 (1892); Gemmil v. Arthur, 125 Ind.
258, 25 N.E. 283 (1890); City of Valparaiso v. Gardner, 97 Ind. 1 (1884);
City of Madison v. Smith, 83 Ind. 502 (1882); O'Boyle v. Shannon, 80 Ind.
159 (1881); Warren County Agric. Joint Stock Co. v. Barr, 55 Ind. 30
(1876); Rothrock v. Carr, 55 Ind. 334 (1876); Bd. of Comm'rs of Benton
County v. Templeton, 51 Ind. 266 (1875); Hurd v. Walters, 48 Ind. 148
(1874); English v. Smock, 34 Ind. 116 (1870); Harney v. The Indianapolis,
Crawfordsville, & Danville R.R. Co., 32 Ind. 244 (1869).
The public standing doctrine is not unique to Indiana. The Illinois
Supreme Court stated in Retail Liquor Dealers Protective Ass'n v.
Schreiber, 47 N.E.2d 462 (Ill. 1943): "Where the object is the enforcement
of a public right, the people are regarded as the real party, and the
relator need not show that he has any legal interest in the result. It is
enough that he is interested as a citizen in having the laws properly
executed." Id. at 464. The Florida Supreme Court used nearly identical
language in State ex rel. Village of North Palm Beach v. Cochran, 112 So.2d
1, 5 (Fla. 1959). In Tax Equity Alliance for Massachusetts v. Comm'r of
Revenue, 672 N.E.2d 504 (Mass. 1996), the Massachusetts Supreme Court said
that "[u]nder the public right doctrine, any member of the public may seek
relief in the nature of mandamus to compel the performance of a duty
required by law." Id. at 508. In the same year, the South Dakota Supreme
Court discussed public standing in Stumes v. Bloomberg: "If the taxpayer or
elector seeks to protect a public right, no special injury or special
interest need be established." 551 N.W.2d 590, 592 (S.D. 1996).
Similarly, the West Virginia Supreme Court "has consistently held that the
enforcement of a public right may be sought by anyone who shares a common
interest in that right with the public at large." Daily Gazette Co., Inc.
v. Comm'n on Legal Ethics of the West Virginia State Bar, 326 S.E.2d 705,
707-08 n.2 (W. Va. 1984). In the case of Wells v. Purcell, 592 S.W.2d 100
(Ark. 1979), the Arkansas Supreme Court stated that:
The rule is well settled, that when, in the absence of statutory
regulation, the proceedings are for the enforcement of a duty
affecting not a private right, but a public one, common to the whole
community, it is not necessary that the relator should have a special
interest in the matter, or that he should be a public officer.
Id. at 103. Other states that recognize the public standing doctrine
include Ohio,[8] California,[9] and Pennsylvania.[10]
In the present case, the appellees INDOT and Michigan Southern urge
that Cittadine's claim of public standing is foreclosed by Pence v. State,
652 N.E.2d 486 (Ind. 1995). Our Court of Appeals agreed, believing that
Pence had "revisited" and adopted a "change in emphasis" regarding the
public standing doctrine. Cittadine, 750 N.E.2d at 895.
In Pence, the plaintiffs sought to challenge provisions of a
statutory enactment that brought Indiana into accord with the federal
Americans with Disabilities Act, but which also included provisions related
to the salary of members of the Indiana General Assembly. The plaintiffs
claimed that the salary provisions violated Article 4, Section 19 of the
Indiana Constitution which generally requires that legislative enactments
be "confined to one subject and matters properly connected therewith."
Noting that the plaintiffs were allegedly interested as citizens and, as to
one plaintiff, as a taxpayer, this Court declined to address the
plaintiffs' claim applying the general standing rule because the plaintiffs
"failed to demonstrate any interest beyond that of the general public." 652
N.E.2d at 488.
Significantly, the majority opinion in Pence did not expressly
discuss the public standing doctrine, but observed:
While the availability of taxpayer or citizen standing may not be
foreclosed in extreme circumstances, it is clear that such status will
rarely be sufficient. For a private individual to invoke the exercise
of judicial power, such person must ordinarily show that some direct
injury has or will immediately be sustained.
Id. (emphasis added). This language clearly does not abrogate but rather
acknowledges the public standing doctrine. We view application of the
standing rule in Pence merely to express our exercise of judicial
discretion with cautious restraint under the circumstances. We hold that
Pence did not alter the public standing doctrine in Indiana.
The public standing doctrine, which applies in cases where public
rather than private rights are at issue and in cases which involve the
enforcement of a public rather than a private right, continues to be a
viable exception to the general standing requirement. The public standing
doctrine permits the assertion of all proper legal challenges, including
claims that government action is unconstitutional.
However, persons availing themselves of the public standing doctrine
nevertheless remain subject to various limitations. Thus, for example, the
doctrine does not prevent application of the Indiana Public Lawsuit Act,
Ind. Code § 34-13-5-1 through -5-12, or the requirement of exhaustion of
administrative remedies, see, e.g., State Bd. of Tax Comm's v. Ispat
Inland, 784 N.E.2d 477, 482 (Ind. 2003); Fratus v. Marion Community Schools
Bd. of Trustees, 749 N.E.2d 40, 46-47 (Ind. 2001); Town Council of New
Harmony v. Parker, 726 N.E.2d 1217, 1224 (Ind. 2000); Austin Lakes Joint
Venture v. Avon Util., Inc., 648 N.E.2d 641, 644-45 (Ind. 1995).
Similarly, although the Indiana Declaratory Judgment Act expressly
authorizes Indiana courts to "declare rights, status, and other legal
relations whether or not further relief is or could be claimed," Ind. Code
§ 34-14-1-1, to the extent that persons claiming public standing may be
seeking only declaratory relief, they must be persons "whose rights,
status, or other legal relations are affected by a statute, municipal
ordinance, contract, or franchise . . . ." I.C. § 34-14-1-2. See Town of
Munster v. Hluska, 646 N.E.2d 1009, 1012 (Ind. Ct. App. 1995) ("In order to
obtain declaratory relief, the person bringing the action must have a
substantial present interest in the relief sought, not merely a theoretical
question or controversy but a real or actual controversy, or at least the
'ripening seeds of such a controversy,' and that a question has arisen
affecting such right which ought to be decided in order to safeguard such
right.") (quoting Morris v. City of Evansville, 180 Ind.App. 620, 622, 390
N.E.2d 184, 186 (1979)).
Application
Cittadine commenced this action on August 30, 2000, as a member of
the motoring public, seeking to require INDOT to enforce, against Michigan
Southern and other railroads in the state, Indiana Code § 8-6-7.6-1
(1998),[11] which expressly prohibited railroads from allowing obstructions
to block motorists' views for a distance of 1500 feet in each direction of
an intersection of public roadways with railroad tracks. The trial court
initially granted his request for an emergency writ of mandamus but,
following a full evidentiary hearing, denied the petition for a permanent
writ on September 19, 2000, on grounds other than lack of standing. Record
at 257-58. The Court of Appeals affirmed, but on grounds that Cittadine
lacked standing to bring the action. We conclude that Cittadine's claim,
which involves the enforcement of a public right, qualifies for the public
standing doctrine. His action is thus not prevented by the requirement
that he have an interest in the outcome of the litigation different from
that of the general public. See Higgins, 476 N.E.2d at 101.
We note, however, that the challenged statute was amended effective
July 1, 2001, to grant INDOT the authority to adopt rules, based on certain
factors, that vary the unobstructed view requirement. The amended statute
also reduces the unobstructed-view requirement for crossings with train-
activated crossing gates. I.C. § 8-6-7.6-1 (Supp. 2001).[12] Because the
relief sought by Cittadine's petition for a writ of mandamus is the
enforcement of statutory provisions that no longer exist but have since
been substantially amended, his claim is now moot.
On grounds of mootness, we affirm the trial court's denial of
Cittadine's petition for permanent writ of mandamus.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] At the time of the commencement of this action, Indiana Code § 8-6-
7.6-1 provided that each railroad "shall maintain each public crossing
under its control in such a manner that the operator of any licensed motor
vehicle has an unobstructed view for fifteen hundred (1500) feet in both
directions along the railroad right-of-way subject only to terrain
elevations or depressions, track curvature, or permanent improvements." As
more fully described in footnote 12, infra, this statute has since been
amended.
[2] Michigan Southern was made a party to the action below and is a
party on appeal.
[3] "The powers of the Government are divided into three separate
departments; the Legislative, the Executive including the Administrative,
and the Judicial; and no person, charged with official duties under one of
these departments, shall exercise any of the functions of another, except
as in this Constitution expressly provided."
[4] Rice v. Smith, 9 Iowa 570 (1859).
[5] Colton v. Hanchett, 13 Ill. 615 (1852).
[6] Mayor of Baltimore v. Gill, 31 Md. 375 (1869).
[7] Merrill v. Plainfield, 45 N.H. 126 (1863).
[8] State ex rel. White v. City of Cleveland, 295 N.E.2d 665, 668
(Ohio 1973) ("[W]here the question is one of public right and the object of
the mandamus is to procure the enforcement of public duty, the people are
regarded as the real party.") (quoting 35 Ohio Jurisprudence 2d 426, §
141.)
[9] Kinlaw v. State, 814 P.2d 1308, 1319 (Cal. 1991) (Noting that
public standing "promotes the policy of guaranteeing citizens the
opportunity to ensure that no governmental body impairs or defeats the
purpose of legislation establishing a public right.")
[10] Sprague v. Casey, 550 A.2d 184, 187 (Pa. 1988). Pennsylvania
allows taxpayers having no direct, substantial, and immediate interest in
the outcome of a matter to nevertheless challenge a governmental action if
it would otherwise go unchallenged.
[11] The text of the statute is provided in footnote 1, supra.
[12] This statute was amended in 2001 by adding the introductory
clause "Except as provided in subsection (b) or in a rule adopted by the
Indiana department of transportation" and by adding the following
sentence:
However, the Indiana department of transportation may adopt
rules under IC 4-22-2 to adjust the distance of the unobstructed view
requirement under this subsection based on variances in train speeds,
number of tracks, angles of highway and rail crossing intersections,
elevations, and other factors consistent with accepted engineering
practices.
2001 Ind. Acts 103-2001, § 1. In addition, a new subsection (b) was added
that provides an exemption for public crossings equipped with a train
activated crossing gate "if the railroad maintains an unobstructed view for
at least two hundred fifty (250) feet in both directions along the railroad
right-of-way." Id.