July 17, 2013

High court to take lawsuit

Arguments scheduled for September in case between city, Kitchell.

by Mitchell Kirk

---- — The Indiana Supreme Court has agreed to take on a lawsuit filed by a Logansport citizen against city officials over legislation regarding the city's power plant project. Arguments are scheduled for later this fall.

The suit was originally filed and subsequently dismissed in Cass County Superior Court II by Julie Kitchell, represented by attorney Jim Brugh, against Logansport Mayor Ted Franklin and City Council. The suit states the city engaged in a public-private agreement process to develop a new power plant before adopting legislation authorizing it to do so.

Following the case's dismissal, Kitchell appealed in the Indiana Court of Appeals and attorneys representing the city filed a motion with the state supreme court, hoping for a quicker and more absolute decision on the matter as negotiations with the plant's developer, Pyrolyzer LLC, continue. Opening arguments have been scheduled for 10:30 a.m. Sept. 5.

"This is big, it's exciting and hopefully it's the end," Franklin said.

Brugh argues public-private agreement statutes within the Indiana Code state a city must adopt legislation authorizing itself to engage in the public-private agreement process before doing so. The city adopted this legislation in March, about four months after it released a request for proposals regarding the plant.

Mark Crandley, representing Franklin in the case, and John Molitor, representing the council, argue the language does not dictate a specific sequence for matters like this for unconsolidated cities like Logansport.

Molitor said he doesn't think he and Crandley are interpreting this legislation incorrectly, but even if they are, the city cited a state statute allowing for the ratification of prior actions when it passed the legislation authorizing negotiations to begin with Pyrolyzer.

Brugh was out of the country Tuesday and could not be reached for comment.

Brugh filed an affidavit in Cass County Superior Court II in June alleging Franklin and Logansport Clerk-Treasurer Carol Sue Hayworth backdated the legislation in question, which he said should have been automatically vetoed after going without proper signatures for more than 10 days.

While the county court has already dismissed the case, that affidavit could give it reason to be reopened.

Crandley and Molitor argue those claims are conjecture and should have been mentioned in the original suit. And if they are enough to reopen the case, they say Brugh should be dismissed as Kitchell's counsel after having made himself a witness in the case.

Molitor said that allegation will not be heard at the Supreme Court this fall, as the only arguments the court will accept are those that have already been filed with the court itself and the court of appeals.

Franklin said the city will continue to pursue the reimbursement of its attorneys' fees from Kitchell, which he estimates to total around $75,000 after the case is decided.

Molitor said he anticipates the supreme court will come to a decision by the end of the year.

"It would surprise me if we don't get a ruling by the end of the year," he said. "It could be a couple weeks, it could be Thanksgiving."

Mitchell Kirk is a staff reporter at the Pharos-Tribune. He can be reached at 574-732-5130 or