Sec. 5. (a) If uncertainty exists or a dispute arises concerning the executive or legislative nature of a power or duty exercised or proposed to be exercised by a branch, officer, department, or agency of the government of a municipality, a petition may be filed in the circuit court or superior court of the county in which the municipality is located by the municipal executive, another municipal elected official, the president of the municipal legislative body, or any person who alleges and establishes to the satisfaction of the court that the person is or would be adversely affected by the exercise of the power; however, in a county that does not contain a consolidated city and that has a superior court with three (3) or more judges, the petition shall be filed in the superior court and shall be heard and determined by the court sitting en banc.

     (b) In a county containing a consolidated city, the petition shall be heard and determined by a five (5) member panel of judges from the superior court. The clerk of the court shall select the judges electronically and randomly. Not more than three (3) members of the five (5) member panel of judges may be of the same political party. The first judge selected shall maintain the case file and preside over the proceedings.

Terms Used In Indiana Code 36-4-4-5

  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
  • Clerk: means the clerk of the court or a person authorized to perform the clerk's duties. See Indiana Code 1-1-4-5
  • En banc: In the bench or "full bench." Refers to court sessions with the entire membership of a court participating rather than the usual quorum. U.S. courts of appeals usually sit in panels of three judges, but may expand to a larger number in certain cases. They are then said to be sitting en banc.
     (c) The petition must set forth the action taken or the power proposed to be exercised, and all facts and circumstances relevant to a determination of the nature of the power, and must request that the court hear the matter and determine which branch, officer, department, or agency of the municipality, if any, is authorized to exercise the power. On the filing of the petition, the clerk of the court shall issue notice to the municipal executive, each municipal elected official, and the president of the municipal legislative body, unless the petition was filed by that person, and to the municipal attorney, department of law, or legal division.

     (d) The court shall determine the matters set forth in the petition and shall affix the responsibility for the exercise of the power or the performance of the duty, unless it determines that the power or duty does not exist. Costs of the proceeding shall be paid by the municipality, except that if an appeal is taken from the decision of the court by any party to the proceeding other than the municipal executive, another municipal elected official, or the president of the municipal legislative body, the costs of the appeal shall be paid by the unsuccessful party on appeal or in the manner directed by the court deciding the appeal.

[Pre-Local Government Recodification Citation: 18-1-1.5-28.]

As added by Acts 1980, P.L.212, SEC.3. Amended by P.L.69-1995, SEC.5; P.L.141-2007, SEC.3; P.L.84-2016, SEC.172.

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