COA rejects Lake County residents’ suit against East Chicago’s ‘welcoming ordinance’

Editor’s note: This article has been corrected.

Northern Indiana residents have failed in another attempt to do away with a local city “welcoming ordinance” — this time in the city of East Chicago — after the Court of Appeals of Indiana found that, like in the attempt to remove such an ordinance in Gary, the plaintiffs ultimately lacked standing to bring their claim.

Greg Serbon and John Allen, both residents of Lake County, sued the city of East Chicago and numerous other entities and officials in May 2018 seeking declaratory and injunctive relief from the city’s “welcoming ordinance.”

The plaintiffs, neither of who live in the city but do frequent there, claimed that the ordinance was in violation of  Indiana Code Chapter 18.2, a provision that prevents Indiana cities and towns from becoming a “sanctuary city.”

Their complaint alleged that they had standing pursuant to Section 18.2-5 and public standing. It also claimed that the ordinance violates Chapter 18.2 and that they, therefore, may bring an action to enforce Chapter 18.2 and enjoin any violations thereof.

However, the plaintiffs did not allege or claim that they live in, pay taxes in or vote in the city. Their claim also did not state that they had been personally harmed by the ordinance.

The state of Indiana eventually intervened on behalf of the plaintiffs, who are represented by Terre Haute attorney James Bopp Jr.

Although the Lake Superior Court determined that Serbon and Allen had standing to challenge the ordinance under Section 18.2-5, the Court of Appeals determined otherwise in a Friday decision.

The appellate court concluded that for public standing, there must be some redressable injury, even if it is an injury common to the public. It found the plaintiffs’ arguments to be distinguishable from those cited in State ex rel. Cittadine v. Ind. Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003).

“The only injury the Plaintiffs refer to is the simple fact that the Ordinance allegedly conflicts with Chapter 18.2. The Plaintiffs have not shown how any potential conflict between the Ordinance and Chapter 18.2 has resulted in any injury to the public at large. A potential conflict between an ordinance and a statute, without more, does not necessarily harm the public,” Judge Elizabeth Tavitas wrote.

For support, the COA pointed to the Indiana Supreme Court’s July decision to toss a similar suit in City of Gary v. Nicholson, ___ N.E.3d ___, 2022 WL 2841364 (Ind. July 21, 2022), brought against the city of Gary by one of the same plaintiffs in the case at hand, Serbon.

“The facts of the present case are indistinguishable from those in Nicholson. We therefore conclude that the Plaintiffs here, like the plaintiffs in Nicholson, do not have public standing to challenge the Ordinance,”  Tavitas wrote.

As for statutory standing, the COA found that Huffman v. Ind. Dep’t of Transp., 811N.E.2d 806 (Ind. 2004), does not support the plaintiffs’ argument that the Indiana General Assembly may confer standing to anyone seeking judicial relief regardless of injury.

Judges concluded that although Section 18.2-5 clearly creates a private cause of action to enforce the provisions of Chapter 18.2, it does not confer standing on every legally domiciled Indiana resident regardless of whether the resident has been harmed or injured by the alleged noncompliance with Chapter 18.2.

“Were we to conclude that Section 18.2-5 conferred standing to all residents regardless of harm to them or to the public, it would expand standing well beyond that permitted by our Constitution,” the COA wrote in concluding that the plaintiffs failed to establish personal or public injury and to show any extreme circumstances sufficient to justify judicial intervention.

However, the appellate court noted that its holding does not denote that the ordinance, or other similar measures, cannot be challenged as being contrary to Section 18.2.

It ultimately reversed and remanded to the trial court with instructions for the dismissal of the plaintiffs’ complaint for lack of standing.

The case is Greg Serbon and John Allen v. City of East Chicago, Indiana, City of East Chicago Common Council; Monica Gonzalez, Lenny Franciski, Terrence Hill, Stacy Winfield, Robert Garcia, Gilda Orange, Dwayne Rancifer, Jr., Emiliano Perez, and Kenneth Monroe, in their official capacities as City of East Chicago Common Council Members; Anthony Copeland, in his official capacity as City of East Chicago Mayor; City of East Chicago Police Department; and Hector Rosario, in his official capacity as City of East Chicago Chief of Police, State of Indiana, 21A-PL-1046.