Hughes v. City of Gary

RUCKER, Justice,

concurring

In an expedited hearing before the trial court, Gary City Councilmen Charles Hughes and Alex Cherry (“Councilmen”) raised a number of concerns that they contended presented substantial questions to be tried. For example they argued that by mandating that the City of Gary pledge gaming tax revenues to the Mayor, the resolution violated Ind.Code § 5-1-14-4; that by granting the Mayor the exclusive right to control all gaming tax revenues to the exclusion of the Gary City Council, the resolution violated Article 8 Section 1 of the Indiana Constitution; that because the bonds are not payable solely from and secured by a hen upon the revenues of the facilities being financed, the resolution violated Ind.Code § 13-21-8 et seq.; that the resolution is unconstitutionally overbroad because it prohibits the Gary City Council from taking legislative action to amend or repeal the resolution; and that the resolution impairs the contract rights of the City of Gary under certain agreements between Trump Indiana, Inc. and Majestic Star Casino that provide for the rehabilitation of the Sheraton Hotel and Union Station in downtown Gary. R. at 353-56.

Without commenting on the strength or validity of these arguments, I note they have not been presented to this Court on appeal. Instead, the “substantial question” claim presented here is addressed solely to two contentions: (1) that the resolution is invalid because the June 27, 2000 meeting was not properly convened; and, (2) that the Gary City Council improperly delegated to the Mayor the power to appropriate the bond proceeds “without restriction, or indication in a discernable manner, the amount of the proceeds to be allocated for each project or a method of ascertaining a maximum that may be used for each project, or who shall make the expenditures.” Brief of Appellant at 14-15.

I fully concur with the majority that the record does not support the proposition that the June 27 meeting was improperly convened. I also agree that the two cases cited in the Brief of Appellant do not support Councilmen’s claim that the Gary City Council overstepped its statutory authority.12 However, I write separately to explore in greater detail the question of *1175whether Councilmen presented a substantial question on this latter point.

Relevant case authority does not make clear what is meant by a “substantial question” in the context of a public lawsuit. The public lawsuit statute itself requires the posting of a bond where “the court determines that the plaintiff cannot establish facts that would entitle the plaintiff to a temporary injunction.” Ind.Code § 34-13-5-7. We have held that in seeking a temporary injunction a plaintiff is required to present evidence that:

(1) the question to be tried was a substantial one, proper for investigation by a court of equity. It is not necessary that such a case should be made out as would entitle appellants to relief on the final hearing; (2) the status quo should be maintained until the final hearing or appellants will certainly be injured irreparably before a trial on the merits can be had; (3) there is no adequate remedy at law; and, (4) any damages to the appellants may be adequately indemnified by the bond posted by the plaintiff.

Johnson v. Tipton Comty. Sch. Corp., 253 Ind. 460, 464-65, 255 N.E.2d 92, 94 (1970). However, in a public lawsuit where the plaintiff is not seeking a temporary injunction, only the first element is applicable. Id.

Unlike Johnson, here the plaintiffs were seeking a temporary injunction. Indeed the record shows that Councilmen sought temporary as well as permanent injunctive relief. R. at 24-25. Thus, it appears that not only were Councilmen required to show the existence of a substantial question, but also the remaining elements for a temporary injunction as well. Johnson, 253 Ind. at 464, 255 N.E.2d at 94. In any event, the question remains what is meant by a “substantial question.”

Not since Johnson has this Court identified the factors necessary for obtaining a temporary injunction. However, those factors have evolved over the years. As a result of a long line of cases from the Court of Appeals, it appears that the propriety of issuing a temporary injunction is now generally measured by the following: (1) whether plaintiffs remedy at law is inadequate thus causing irreparable harm pending the resolution of the substantive action if the injunction does not issue; (2) whether plaintiff has demonstrated a reasonable likelihood of success at trial by establishing a prima facie case; (3) whether the threatened injury to the plaintiff outweighs the threatened harm that the grant of the injunction may inflict on the defendant; and (4) whether by the grant of the preliminary injunction the public interest would be disserved. See, e.g., Daugherty v. Allen, 729 N.E.2d 228, 232-33 (Ind.Ct.App.2000); Union Twp. Sch. Corp. v. State ex rel. Joyce, 706 N.E.2d 183, 189 (Ind.Ct.App.1998), trans. denied; Reilly v. Daly, 666 N.E.2d 439, 443 (Ind.Ct.App.1996); Indiana State Bd. of Pub. Welfare v. Tioga Pines Living Ctr., Inc., 637 N.E.2d 1306, 1311 (Ind.Ct.App.1994); College Life Ins. Co. of Am. v. Austin, 466 N.E.2d 738, 741 (Ind.Ct.App.1984); Indiana Pacers L.P. v. Leonard, 436 N.E.2d 315, 318 (Ind.Ct.App.1982); Rees v. Panhandle E. Pipe Line Co., 176 Ind.App. 597, 377 N.E.2d 640, 646-48 (1978).

Although the requirements for obtaining a temporary injunction as set forth in Johnson are stated somewhat differently than those recited above, they still advance the same general idea: maintaining the status quo until the ease can be heard on the merits. Importantly, the “reasonable likelihood of success at trial” language parallels the “substantial question” language in Johnson. As Johnson points out “[i]t is not necessary that such a case should be made out as would entitle appellants to relief on the final hearing.” Johnson, 253 Ind. at 464, 255 N.E.2d at 94. This is similar to the requirement that a plaintiff show a reasonable likelihood of success at trial “by establishing a prima facie case.” See, e.g., Sch. City of Gary v. Cont’l Elec. Co., 149 Ind.App. 416, 273 N.E.2d 293 (1971) (indicating that to obtain a tempo*1176rary injunction, it is necessary only that the pleadings and evidence be such that they make out a case for proper investigation by a court of equity and that the status quo mil be maintained pending trial).

In this appeal, Councilmen essentially argue that Resolution 2736 is invalid because it lacks detail concerning (i) the amount of money to be spent on each of the public works improvements; and (ii) who will be responsible for making the expenditures. According to Councilmen, these are substantial issues to be tried, and thus they should not have been required to post bond nor should their lawsuit have been dismissed. In the context of what now appears to be the law of this State, it may be stated differently that Councilmen contend they presented sufficient evidence of a prima facie case and thus demonstrated a reasonable likelihood of success on the merits at trial. As explained below, Councilmen have not carried their burden.

Although a legislative body may not delegate its lawmaking authority to another branch of government, “the power and authority to administer legislative enactments may be and necessarily are delegated to various boards, bodies and commissions.” Y.A. by Fleener v. Bayh, 657 N.E.2d 410, 415 (Ind.Ct.App.1995). The only limitation on the delegation of authority is that reasonable standards be established to guide the entity to which the authority has been delegated. Indiana Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 340 (Ind.1994). However, those standards need only be “as specific as the circumstances permit, considering the purpose to be accomplished by the statute.” Id. (quoting Barco Beverage v. Alcoholic Beverage Comm’n, 595 N.E.2d 250, 254 (Ind.1992)).

By enacting Resolution 2736,13 the Gary City Council did not delegate to the executive branch its lawmaking authority. Rather, the Council delegated its authority to administer the terms and conditions of the resolution — a legislative enactment. The Council is invested -with this authority and the propriety of so doing is not subject to judicial scrutiny.14 See, e.g., Dvorak v. City of Bloomington, 702 N.E.2d 1121, 1125 (Ind.Ct.App.1998) (holding that a city ordinance was not unconstitutional simply because the court might consider it born of unwise, undesirable, or ineffectual policies). The critical inquiry here is whether the resolution contained reasonable standards specific enough to accomplish the purposes for which the resolution was enacted.

By its express terms the purpose of Resolution 2736 is to provide a pledge of gaming revenues to secure payment of bonds for various public works projects. The General Assembly has expressly authorized the pledge of gaming revenue for such purposes. See Ind.Code § 4-33-12-6(d)(3) (providing in part that the taxes on gaming boat admissions that are paid to a local government “may be used for any legal or corporate purpose of the unit, including the pledge of money to bonds, leases, or other obligations....”); Ind. Code § 4-33-13-6(a)(3) (providing in part that wagering taxes that are paid to a local government also “may be used for any legal or corporate purpose of the unit, including the pledge of money to bonds, leases or other obligations.... ”). The General Assembly also has expressly authorized a city’s legislative body to “pass ordinances, orders, resolutions, and mo*1177tions for the government of the city, the control of the city’s property and finances, and the appropriation of money.” Ind. Code § 36-4-6-18.

As Couneilmen correctly point out Resolution 2736 contains neither details about the amount of money to be spent on specific projects nor who-will actually spend the money. However, my research has revealed no authority that such specificity is required. To the contrary in at least one case, the Court of Appeals declined to declare an appropriations ordinance invalid even though it failed to define or itemize the costs for a new city hall. Blinn v. City of Manon, 181 Ind.App. 87, 390 N.E.2d 1066, 1072 (1979). Here the resolution contains a great deal of specificity as to how the pledge of gaming revenues will be accomplished. Nothing more is required.

Based on the contentions Couneilmen present in this appeal namely, that Resolution 2736 is invalid because it lacks certain details, Couneilmen have not established facts that would entitle them to a temporary injunction. More specifically they have not put forth a prima facie case demonstrating a reasonable likelihood of success at a trial on the merits. Accordingly, the trial court properly required Councilmen to post a bond and thereafter properly dismissed this action when a bond was not posted. For the reasons set forth I therefore concur in the majority opinion.

SULLIVAN, J., concurs.

. The cases cited are: Park Hill Dev. Co. v. City of Evansville, 190 Ind. 432, 130 N.E. 645 (1921) (invalidating a city ordinance regulating cemeteries because it attempted to confer upon certain city officials the arbitrary power to approve or disapprove cemetery plats for any reason officials might choose); and City of Elkhart v. Murray, 165 Ind. 304, 75 N.E. 593 (1905) (voiding a city ordinance that required street cars to be equipped with particular fenders because the ordinance was not uniform and was arbitrarily discriminatory).

. The terms “resolution” and "ordinance” are frequently used interchangeably, and an ordinance merely connotes a more formal and solemn declaration. Town of Walkerton v. New York, Chi. & St. Louis R.R. Co., 215 Ind. 206, 18 N.E.2d 799 (1939). No issue has been raised in this appeal concerning how these terms are used.

. And this is so even though a number of Gary residents apparently have expressed "outrage” at the proposed expenditure of city revenue for, among other things, constructing and equipping a professional baseball stadium. R. at 113.