ATTORNEYS FOR APPELLANT                            ATTORNEYS FOR APPELLEES
James R. Williams                                  Curtis T. Hill, Jr.
Matthew L. Kelsey                                  Attorney General of Indiana        FILED
DeFur Voran LLP
                                                                                  Aug 15 2017, 1:04 pm
Muncie, Indiana                                    Andrea E. Rahman
                                                   David L. Steiner                   CLERK
                                                                                  Indiana Supreme Court
                                                   Deputy Attorneys General          Court of Appeals
                                                   Indianapolis, Indiana               and Tax Court




                                          In the
                        Indiana Supreme Court
                                   No. 81S01-1708-PL-529

THE BOARD OF COMMISSIONERS OF UNION
COUNTY, INDIANA,
                                                           Appellant (Plaintiff below),

                                              v.

JOE MCGUINNESS, IN HIS OFFICIAL
CAPACITY AS COMMISSIONER OF THE
INDIANA DEPARTMENT OF TRANSPORTATION
AND THE INDIANA DEPARTMENT OF
TRANSPORTATION,
                                                           Appellees (Defendants below).


                  Appeal from the Union Circuit Court, No. 81C01-1507-PL-118
                           The Honorable Brian D. Hill, Special Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 81A01-1603-PL-696



                                       August 15, 2017

Massa, Justice.
        The Board of Commissioners of Union County (“Union County”) sought a declaratory
judgment and an injunction against the Commissioner of the Indiana Department of
Transportation, and the Department itself (collectively “INDOT”) alleging that INDOT was
negligent in its highway repair efforts, causing damage to several neighboring septic systems of
Union County residents. The trial court dismissed the suit, finding Union County did not have
standing to sue INDOT for injury done to its residents. We agree, and affirm.




                                     Facts and Procedural History


        In 2010 or 2011, INDOT performed construction and repair work on U.S. Route 27 in
Union County. 1 While undertaking this project, INDOT allegedly caused “septic system issues”
on three landowners’ private property. Appellant’s App. at 25. After broaching the matter with
INDOT with unsatisfactory results, Union County filed this action for a declaratory judgment and




1
  Throughout Union County’s complaint and the parties’ briefing on appeal, U.S. Route 27 is erroneously
referred to as “state highway 27.” Appellant’s Br. at 1; State’s Br. at 12–13. U.S. Route 27 is a part of the
National Highway System, as designated by the Federal Highway Administration of the United States
Department of Transportation. See U.S. Department of Transportation Federal Highway Administration,
National            Highway             System:          Indiana            (August          23,         2016),
https://www.fhwa.dot.gov/planning/national_highway_system/nhs_maps/indiana/in_indiana.pdf; Indiana
Department            of          Transportation,         Indiana           Roadway          Map          2017,
http://www.in.gov/indot/files/2017%20Indiana%20State%20Map%20Part%201.pdf (last visited July 11,
2017); 23 U.S.C. § 103(b) (2012). “U.S. Routes” predate the building of the Interstate Highway System
that began in the 1950s, and like the interstates, they span the nation crossing state lines. U.S. Route 27,
for instance, runs from Miami, Florida to Fort Wayne. The confusion in the record below may stem from
the fact that state transportation departments are tasked with the maintenance of these old U.S. Routes,
rendering U.S. Route 27 a “state” highway for purposes of analyzing this dispute. See 23 U.S.C. § 116(b)
(“It shall be the duty of the State transportation department or other direct recipient to maintain, or cause to
be maintained, any project constructed under the provisions of this chapter or constructed under the
provisions of prior Acts.”); Indiana Department of Transportation, INDOT Facts,
http://www.in.gov/indot/2337.htm (last visited July 11, 2017) (“INDOT is responsible for state roads,
interstates and U. S. routes including adjacent overpasses and ramps on these roadways.”). We nevertheless
will refer to the road by its correct designation, despite its description as “state highway 27” throughout the
record below.



                                                       2
an injunction against INDOT, seeking repair of the septic systems and “[a]n Order declaring [U.S.]
highway 27 and any associated storm drain the responsibility of INDOT and not Union County,
Indiana[.]” Appellant’s App. at 25. INDOT filed a motion to dismiss pursuant to Indiana Trial
Rule 12(B)(6), asserting Union County lacked standing to sue and thus had failed to state a claim
upon which relief could be granted. The trial court agreed, granted the motion to dismiss, and
subsequently denied Union County’s motion to correct error. Union County appealed, and our
Court of Appeals reversed, finding that a declaratory judgment was an appropriate vehicle for
resolving the question of “responsibility” for U.S. Route 27, and Union County could maintain an
action for injunctive relief on behalf of its citizens under third-party standing doctrines, specifically
public standing, associational standing, and parens patriae authority. Bd. of Comm’rs of Union
Cty. v. Hendrickson, 67 N.E.3d 1061, 1067–71 (Ind. Ct. App. 2016). We hereby grant INDOT’s
petition to transfer, and vacate the Court of Appeals’ decision below. Ind. Appellate Rule 58(A).




                                            Standard of Review


        “We review de novo the trial court’s grant or denial of a motion based on Indiana Trial
Rule 12(B)(6).” Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). 2
In so reviewing, “we look at the complaint in the light most favorable to the plaintiff, with every
inference drawn in its favor, to determine if there is any set of allegations under which the plaintiff




2
  We note that, in response to INDOT’s motion to dismiss, Union County designated an affidavit of its
sanitarian, which is evidence outside of the pleadings and thus would ordinarily convert this matter into a
motion for summary judgment, since it was not expressly excluded by the trial court. See Ind. Trial Rule
12(B). However, it is apparent from the trial court’s disposition of this motion that the designated affidavit
played no part in its decision. Thus while it was error for the trial court to not formally exclude the affidavit
in its order, that error was harmless. Cf. Reich v. Lincoln Hills Christian Church, Inc., 888 N.E.2d 239,
244 (Ind. Ct. App. 2008) (holding the trial court’s failure to convert a motion to dismiss into a motion for
summary judgment after an affidavit was filed in response to the motion was harmless error, where the
affidavit had no impact on the decisive Statute of Frauds issue). We therefore shall examine this case from
a posture of a Rule 12(B)(6) dismissal, and similarly exclude the affidavit from our analysis.



                                                       3
could be granted relief.” King v. S.B., 837 N.E.2d 965, 966 (Ind. 2005). “A dismissal under Trial
Rule 12(B)(6) is improper unless it appears to a certainty that the plaintiff would not be entitled to
relief under any set of facts.” Id.




                  Union County Has Not Pled Adequate Facts to Maintain a
                      Declaratory Judgment Action on Its Own Behalf.


        Indiana Trial Rule 8(A) places a lower limit on a plaintiff’s pleading obligation, requiring
only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Nevertheless, “[a]though the plaintiff need not set out in precise detail the facts upon which the
claim is based, [they] must still plead the operative facts necessary to set forth an actionable claim.”
Trail v. Boys & Girls Clubs of Nw. Indiana, 845 N.E.2d 130, 135 (Ind. 2006). Among such
“operative” facts in a declaratory judgment action are those necessary to support that the plaintiff
has personal standing to bring suit. See State ex rel. Cittadine v. Indiana Dep’t of Transp., 790
N.E.2d 978, 984 (Ind. 2003) (upholding the vitality of the public standing doctrine in Indiana, but
noting that with respect to actions brought under the Declaratory Judgment Act, plaintiffs “must
be persons ‘whose rights, status, or other legal relations are affected by a statute, municipal
ordinance, contract, or franchise . . . .’” (quoting Ind. Code § 34-14-1-2)); see also Redev. Comm’n
of Town of Munster v. Indiana State Bd. of Accounts, 28 N.E.3d 272, 276 (Ind. Ct. App. 2015),
trans. denied (“In order to obtain declaratory relief, the person bringing the action must have a
substantial present interest in the relief sought.” (internal quotations omitted)).


        The general rule of standing holds that “the proper person to invoke the court’s power” is
limited to those “who have a personal stake in the outcome of the litigation and who show that
they have suffered or were in immediate danger of suffering a direct injury as a result of the
complained-of conduct[.]” Cittadine, 790 N.E.2d at 979. Our Court of Appeals found that Union
County could maintain its declaratory judgment action, finding the allegations “may be viewed as
akin to a dispute regarding ownership of or title to real property, which is an appropriate matter
for resolution by declaratory judgment.” Hendrickson, 67 N.E.3d at 1066.



                                                   4
        But the inference necessary to adopt this viewpoint is that Union County has some
underlying property interest at issue––and Union County has provided no facts or evidence in its
pleadings to support that inference. 3 Indeed, Union County has identified only INDOT as having
control over U.S. Route 27, and three local landowners who own adjacent property. The only
connection with U.S. Route 27 that Union County has pled is its physical presence within the
county, which does not in and of itself reasonably support the inference that Union County has any
responsibility for it, particularly since it is a federal highway that the State must maintain. See
supra note 1. Moreover, it is not a foregone conclusion that Union County has any direct property
interest at stake (in the absence of pled facts or evidence to the contrary), since U.S. Route 27 may
merely rest upon a public right-of-way, rather than government property acquired through
condemnation or eminent domain proceedings. See, e.g., Contel of Indiana, Inc. v. Coulson, 659
N.E.2d 224, 227 (Ind. Ct. App. 1995) (examining whether the State could grant a telephone
company the right to bury cable adjacent to State Road 63, and noting that typically with former
county roads in Indiana “the property rights of abutting landowners extend to the center of the
roadway subject only to an easement of the public to use the street or highway.”). Nor has Union
County asserted in its pleadings that it owns property separate and apart from U.S. Route 27 which
was impacted by the alleged actions of INDOT, or that Union County could have an interest in
U.S. Route 27 due to the public right-of-way.




3
  At oral argument, counsel for Union County argued that this remains an open question. See Oral Arg.
Video Tr. at 27:45–27:50 (“I’m not certain if it’s a state ditch or a county ditch.”); Oral Arg. Video Tr. at
28:30–28:40 (“The actual place where the cut occurred is clearly state ground, where the sewage is now
being deposited is in dispute.”). While these factual assertions may have made a world of difference had
they been included in the initial complaint, this Court cannot rely upon them when made for the first time
at oral argument, as they are both unsworn and untimely for purposes of INDOT’s motion to dismiss. See
Harris v. State, 427 N.E.2d 658, 662 (Ind. 1981) (noting that Indiana Trial Rule 59, which permits the filing
of affidavits in conjunction with a motion to correct error, is an available mechanism “to bring facts dehors
the record before the trial court and the Court of Appeals.”).



                                                     5
        In short, by crafting its complaint to avoid any connection to U.S. Route 27, Union County
has also managed to avoid pleading any personal interest in its own case. As such, the trial court
did not err in dismissing Union County’s declaratory judgment claim for lack of standing.




                Union County Cannot Maintain Its Claim for Injunctive Relief
                         Under Third-Party Standing Principles.


        Union County also alleges a third-party interest in this suit, namely that INDOT’s actions
“may impact other properties and may implicate a broader public health and safety concern for
Union County, Indiana.” 4 Appellant’s App. at 25. Unlike declaratory judgment actions, a party
may seek equitable relief (such as an injunction) on the basis of third-party standing. Cf. Cittadine,
790 N.E.2d at 984 (holding public standing doctrine permitted action for emergency writ of
mandamus). While the general rule of standing requires a personal interest in the outcome of the
case, there are a number of exceptions which permit third parties to prosecute actions despite
lacking such an interest. INDOT discusses three such exceptions in its petition to transfer, which
we shall address in turn: public standing doctrine, associational standing doctrine, and parens
patriae authority.


        As we discussed extensively in Cittadine, the public standing doctrine dispenses with the
personal interest standing requirement “in cases where public rather than private rights are at issue
and in cases which involve the enforcement of a public rather than a private right.” 790 N.E.2d at
983. Cittadine cited forty Indiana Supreme Court decisions stretching back to 1852 permitting




4
 Union County also made a claim at oral argument that it could pursue injunctive relief in its own right
under Indiana Code section 36-1-6-4 (2012), because INDOT’s conduct caused raw sewage to stand in an
open ditch likely within INDOT’s control, in violation of municipal ordinances. Oral Arg. Video Tr. at
22:30–24:00. This appears to have been Union County’s first reference to this statutory authority to seek
an injunction, and thus we find the argument waived for purposes of this motion to dismiss and appeal. See
State v. Holtsclaw, 977 N.E.2d 348, 350–51 (Ind. 2012).



                                                    6
public standing in some shape or form, but all of them have at least one thing in common: the
action was brought by a citizen. Indeed, that has been a critical aspect of the public standing
doctrine since its inception in this State, because only a member of the public has standing to
enforce rights granted to the public. See Hamilton v. State ex rel. Bates, 3 Ind. 452, 458 (1852)
(“That the defendant should discharge, correctly, the duties of his office, was a matter in which
Bates, as a citizen of the county, had a general interest; and that interest was, of itself, sufficient to
enable him to obtain the mandamus in question, and have his name inserted as the relator.” (italics
omitted)); see also Cittadine, 790 N.E.2d at 984 (finding Cittadine, “as a member of the motoring
public,” could invoke the public standing doctrine); Bd. of Comm’rs of Decatur Cty. v. State, 86
Ind. 8, 12–13 (1882) (holding that under the public standing doctrine, “it is only necessary that the
relator shall be a citizen, and as such interested in the execution of the laws.”). Union County is
thus unable to assert the public standing doctrine, since it is not a citizen.


        Unlike the public standing doctrine, associational standing is largely a creature of federal
law, and permits an association to sue on behalf of one or more of its members if: “(a) its members
would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple
Advert. Comm’n, 432 U.S. 333, 343 (1977). While this Court has found the public standing
doctrine available under the Indiana Constitution, 5 we have never so ruled with respect to
associational standing, though a number of decisions by our Court of Appeals have accepted the
doctrine in Indiana. See, e.g., Bd. of Comm’rs in Cty. of Allen v. Ne. Indiana Bldg. Trades




5
 See Cittadine, 790 N.E.2d at 979 (noting that “[u]nlike the language of Article III, Section 2 of the United
States Constitution, the Indiana Constitution contains no ‘case or controversy’ requirement. We have
observed that an analogous function is fulfilled by the distribution of powers provision in Article 3, Section
1, of the Indiana Constitution.”).



                                                      7
Council, 954 N.E.2d 937, 941 (Ind. Ct. App. 2011), trans. denied.; Save The Valley, Inc. v.
Indiana-Kentucky Elec. Corp., 820 N.E.2d 677, 682 (Ind. Ct. App. 2005), trans. denied.


       Assuming without deciding that associational standing is available in Indiana under the test
articulated in Hunt, Union County has still failed to meet that standard. First, Union County is not
an “association” for purposes of standing. Hunt held that the Washington State Apple Advertising
Commission could qualify as an association, despite being a state agency, because “for all practical
purposes, [it] performs the functions of a traditional trade association representing the Washington
apple industry.” 432 U.S. at 344. Union County serves no such specific associational purpose on
behalf of its residents with respect to septic systems. Second, given that Union County’s prayer
for relief specifically called for “INDOT to immediately remedy any and all negligent and/or
improper construction and repair work that resulted in septic and/or public health issues”,
participation of the three named landowners (i.e. “members”) would clearly be required, as the
individuals whose septic systems were allegedly damaged. Appellant’s App. at 26.


       In truth, it appears Union County has not asserted a standing argument at all, but rather has
attempted to invoke parens patriae authority, which in Latin means “parent of his or her country,”
and refers to “the state in its capacity as provider of protection to those unable to care for
themselves.” Parens patriae, Black’s Law Dictionary 1287 (10th ed. 2014). But it has long been
settled that “a state may act as parens patriae on behalf of its citizens. However, a county has no
sovereign powers and cannot act as parens patriae, asserting the claims of its residents.” Bd. of
Comm’rs of Howard Cty. v. Kokomo City Plan Comm’n, 263 Ind. 282, 295, 330 N.E.2d 92, 101
(1975) (internal citations omitted) (emphasis added); see also Shoemaker v. Bd. of Comm'rs of
Grant Cty., 36 Ind. 175, 183–84 (1871) (holding that the county had no standing to sue the State
to recover taxes illegally obtained from citizens “unless the money belongs to the county.”). Union
County is thus disqualified from claiming such authority in this case.


       In sum, the trial court did not err in dismissing this action, as Union County has failed to
plead any viable theory of standing to support its alleged cause of action.




                                                 8
                                           Conclusion


       For the foregoing reasons, we affirm the trial court’s dismissal of Union County’s
complaint for lack of standing.


Rush, C.J., and David, Slaughter, and Goff, JJ., concur.




                                                9
