07-10-06 Council Meeting Minutes

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REGULAR MEETING JULY, 10, 2006 not have that power. That rule of law is now gone. The statute specifically says that Cities have all powers granted by statute and all other powers necessary or desirable in the conduct of its affairs even though not granted by statute.Another section specifically talks about that the statute should be interpreted broadly to effectuate its purposes. In any situation where new legislation, an ordinance comes into effect, there is no 100% guarantee that the courts will interpret that legislation in a way that is favorable to the body that passes that legislation. Courts in fact take a variety of factors into account and in fact they interpret the laws in different ways. The language is fairly specific, his research has determined that across the country in cities where municipal ordinances have been enacted, he stated that he believed only three (3) nationwide have been in fact struck down for various reasons. He did not have a list of exactly why that is. For the most part, those ordinances have been upheld and found to be constitutional in several different states. It’s hard of course to go state by state, because some states have home rule acts that are different than Indiana’s Home Rule Act. Although, Indiana’s Act is in fact is fairly broad and fairly specific. So under those circumstances, there is clearly a good argument, good foundation, good support for the Council accepting the authority to enact this ordinance under those circumstances his thinks it is appropriate. Council President Rouse asked Mr. Leone if any other city has an ordinance like this one. st He was only aware that Indianapolis, a 1 Class City is the only other city in the State of Indiana with an ordinance like this, and it was passed just last year in 2005. nd Councilmember Rouse stated that South Bend is a 2 Class City and if challenged, South nd Bend would be the first 2 Class City to have a mandatory ordinance. He noted that South Bend would be going from nothing to a mandatory ordinance. He also stated that he believes that the Council was misinformed that there were other cities that have such and ordinance and that is not the case. Mr. Leone responded that the Home Rule Issues are not specific to civil rights acts. The Home Rule Issues apply to virtually every ordinance that this Council considers and in fact regulates the way that people act within the city limits of the City of South Bend, so as he discusses Home Rule, he is not talking about just what the City of South Bend is doing or the City of Indianapolis is doing, he is talking about everything that the Council’s passes. The scrap yard ordinance, the adult business ordinance, any of these ordinances and in fact, that’s what he relies on, he relies on the authority that the legislation has given the City.If you read it, it says that the city has a lot of authority. Council President Rouse asked that in December, 2005, both the lawyer for the Human Rights Commission and Council Attorney Kathleen Cekanski-Farrand issued opinions that kind of flied contrary to what you are presenting here today. Mr. Leone stated that he did not think that they flied contrary to what he is saying today. What he is saying is that there are strong basis for supporting this ordinance. There are clearly concerns and of course as the Council is always debate within the legal community. No one knows until a judge tells that if in fact an ordinance is valid or not valid. The City of South Bend has had in the past ordinance’s struck down. The City also has had ordinances upheld.That is the role of the judicial branch. The City cannot wait, obviously if this is the right thing to do, then what legislatures typically do is go ahead an enact the ordinance or the statute depending upon the legislature and in fact if the court says at some point, yes it is a valid enactment or no, it is not a valid enactment. So there is certainly some risk in getting the bill passed. Councilmember Varner stated that the Council is in possession of an opinion or a brief one by the attorney for the Human Rights Commission, Aladean DeRose that pointed out a conflict which she saw, and one from the Council’s Attorney Kathleen Cekanski- Farrand, who points out conflicts which she saw. Councilmember Varner stated that when it comes times to make a decision, that there are three (3) separate opinions from respected legal minds from people that we have no reason to believe are biased, they are simple presenting opinions and we will be forced at this time to make some sort of decision in one way or the other. Either one of which may be correct, but the Council should make a decision based on that. 5