Court action pending on Chestnut Street

Court action pending on Chestnut Street by David Lias Three of the most vocal opponents of the proposed Chestnut Street improvement project have filed an application for an alternative writ of mandamus in an attempt to stop the work.

In general terms, a writ of mandamus is a writ issued by a superior court commanding the performance of a specified official act or duty.

In their application, filed last May, Neil and Lynette Melby and Jeanette Stone note that 20 days after the Vermillion City Council passed a motion for final approval of the Chestnut Street Project on Dec. 4, 2000, petitions were circulated among citizens in protest of the work.

The petitions were also designed to submit the entire street project to voters for their approval or rejection pursuant to state law.

"Officials in and for the city of Vermillion have failed and to this date refuse to refer the passage of the Chestnut Street Plan to the voters for their approval of rejection as required by law," state the Melbys and Stone in the court document.

Their application for a writ of alternative mandamus in first judicial circuit court was made, they state, because the matters involved are of great public and general interest to the people of the city of Vermillion and Clay County.

It was also filed in the hopes that the court will issue a writ commanding the city to submit the Chestnut Street plan to voters for their approval or rejection pursuant to the timetable and terms established by state law.

The Melbys and Stone also state that they should be awarded their attorney fees and other costs as permitted by law, and any other relief the court may deem just under the circumstances.

A vigorous defense

The city of Vermillion and members of the Vermillion City Council, in their capacity as elected officials, have replied to the application for a writ of mandamus with a vigorous defense.

In court documents filed in mid-June, they state that the application fails to state a claim or cause of action upon which a writ of mandamus may be issued or relief be granted pursuant to state law.

The city council also denies all but three allegations that petitioners Stone and the Melbys contained in their application.

"As an affirmative defense, the Dec. 4, 2000 city council action regarding the Chestnut Street project was an adminstrative decision not subject to the referendum process," states the city's reply. "The action merely puts into execution a plan already adopted."

In other affirmative defenses, the city alleges that the relief sought in the Melbys' and Stone's application is barred by the doctrine of laches � in other words, they claim that the petitioners have waited too long to bring this legal action.

The city claims that the relief sought by the petitioners is barred by the doctrine of waiver, meaning, in general terms, that Stone and the Melbys have done something that has affirmatively waived their claim, such

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as something that indicates that they have waived their right to pursue the action.

In yet another affirmative defense, the city alleges that the relief sought by Stone and the Melbys should be barred by the doctrine of estoppel. Estoppel has several different meanings in different contexts, but it most likely means, in this case, that because of the property owners actions or inactions, the property owners should be barred from bringing their claim because the actions or inactions of the property owners have hurt the city.

Seeking a different judge

Stone and the Melbys have also filed an affidavit for a change of judge when this case appears in First Circuit Court.

They first tried earlier this spring to informally request that Circuit Court Judge Art Rusch recuse himself.

Rusch refused to heed this request in a letter he wrote May 17. Stone and the Melbys replied by filing the affidavit in early June.

Stone and the Melbys state in court papers that "in the ordinary course of litigation such action or some issues therein is expected to come on for trial before Judge Rusch."

They added that they believe they cannot have a fair and impartial trial before Rusch.

Rusch responded to their initial informal request May 17 in a letter to David Palmer, attorney for Stone and the Melbys.

"Although I am a resident of the city of Vermillion, there will be no direct impact on me from this litigation and I know of nothing that would indicate that I should disqualify myself," he states in the letter. "If you want to disqualify me you will have to follow the statutory procedure.

"Under no circumstances," Rusch added, "will I ask the Supreme Court to appoint a judge from other circuit to hear this case. I know of no precedent which would indicate that all of the judges of this circuit should be disqualified merely because the lawsuit involved a municipality. That happens all of the time."

Public vote already set

A public vote on some of the aspects of the street project was scheduled by the Vermillion City Council in late May after petition circulators filed 32 pages of petitions at City Hall May 16.

Those petitions are response to action by the Vermillion City Council in mid-April to condemn three tracts of privately owned property needed to complete the $1.3 million street project.

The scope of this referendum vote, which will be held Nov. 5, is limited only to the condemnation aspects of the project.

It will not be a referendum of the Chestnut Street project as a whole, which the Melbys and Stone are seeking with their application for a writ of mandamus.

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