Agenda - Planning Commission - 07/09/2009

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i: " Ii i: il I Ii I) !I II Ii II II .11 II II II Ii 11 Ii i I I i j . ~ II I, II II :1 !1 Ii II if II Ii ii Ii I' :1 " ii :1 ii il !! ii ii II .1 ii Ii II !I il !I II I, tI 1! I- i! ll__~ Zoning Bulletin June 10, 2009 I Volume 31 No. 11 /~ , ) Later, the trial court found that the Commission had acted in bad faith in failing to approve the subdivision after having granted its attor- neys (who had agreed to the Agreement) full settlement authority. How- ever, the trial court held that the Commission could not be sanctioned for that bad faith action. It held that was because governmental entities were not subject to sanctions under the Indiana Alternative Dispute Res- olution Rules ("APR Rules"). LCTC and the Commission both appealed. The Court of Appeals consolidated the appeals, and ultimately held that: (1) the Commission was immune from any sanctions under the ADR Rules; and (2) the Com- mission did not act in bad faith in failing to promptly approve the plat, The Supreme Court of Indiana granted a petition for transfer. DECISION: Judgment vacated. (') ,. The Supreme Court of Indiana held that: (1) government entities are sub- ject to sanctions under the ADR Rules; and (2) in this case, the Commission did not act in bad faith for failing to approve the subdivision because it re- mained subject to the Commission's final approval at a public meeting. The court explained that under the ADR Rules that applied to me- diation (Rules 2.7(E)(3) and 2.10), a 'court could impose sanctions: for "any breach or failure to perform under the agreement;" and "against any attorney, or party representative who fails to comply with [the ADR] mediation rules." The court noted that the ADR Rules did "not exempt governmental entities." Rather, they: applied "in all civil and domestic" cases in Indiana court; and to "any" breach and against "any" party- without exception for governmental entities or their attorneys. More- over, the court emphasized, when governmental entities entered the coU1;t (and mediation proceedings were deemed to be "in court"), they were placed on "the same basis as any other litigant; subjecting [themselves] to the inherent authority of the court to control actions"-including the inherent authority to impose sanctions. As to the issue of whether the Commission acted in bad faith for fail- ing to approve the subdivision, the Commission had argued that it did nQt act in bad faith because the Agreement .was subject to the Indiana Open Door Law. The Open Door Law (Ind. Code ~~ 5-14-1.5-1 to -8) sought to assure that governmental business "be conducted openly so that the general public [could] be fully informed." The Commission maintained that, under the Open Door Law, its attorneys in the medla- tion could not bind the Commission to a settlement. Rather, the Com- mission maintained that the Agreement "could only be a provisional agreement," subject to Commission approval ina public meeting. LCTC disagreed, arguing that the settlement discussions d~ing mediation did not amount to "meetings" of the Commission that had to be'open to the public under the Ope'n Door Law. Alternatively, LCTC argued that the i i 'I. / ....'--,....: @ 2009 Thomson Reuters 11 63