Utility Center, Inc. v. City of Fort Wayne

*699ROBB, Judge,

concurring in part and dissenting in part.

I concur in the majority's opinion with respect to the City's Motion to Strike the Long Affidavit. Utility Center's assertion that "Senator Long's affidavit reaffirms the plain language of the statute," Appellant's Br. at 17, proves the point that the trial court did not err in striking it. If the language of the statute is "plain," and the legislation is not susceptible to widely differing interpretations, we are constrained by Supreme Court precedent regardless of how insightful the legislator's comments are. For that reason, I concur with the majority in affirming the trial court on this issue.

However, I respectfully dissent from the majority's resolution of the summary judgment issue. The majority concludes that the trial court should have granted summary judgment for Utility Center because the City was required to, but did not, proceed under Indiana Code chapter 8-1-30. The majority holds that Indiana Code section 8-1-30-6 does not limit its application to troubled utilities, and is therefore applicable to all utilities Although I agree that the express language of section 6 does not reference a troubled utility, I believe when considered in the context of the entire chapter, it is clearly intended only for troubled utilities. Section 6 requires that the procedural mandates of chapter 30 be satisfied, and the procedural mandates of chapter 30 include a finding that the utility is in violation of law or commission order or has severe unreme-died deficienciese-ie., is a troubled utility. If, as the majority holds, section 6 applies to all public utilities, and the regular eminent domain provisions do not apply to any public utility because section 6 is the more specific statute, then the end result is that a municipality can only ever buy a troubled utility. I do not believe that this is the result intended by the legislature. I would therefore hold that the Commission's interpretation that section 6 applies only to troubled utilities is correct, and that in the absence of a troubled utility, the regular eminent domain statute applies.