                                                                    Dec 11 2015, 9:29 am




APPELLANT, PRO SE                                         ATTORNEY FOR APPELLEE
Jason J. Maraman                                          Ashley M. Ulbricht
Indianapolis, Indiana                                     Carmel Assistant City Attorney
                                                          Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason J. Maraman,                                         December 11, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A05-1504-OV-145
        v.                                                Appeal from the Hamilton
                                                          Superior Court
City of Carmel, Indiana,                                  The Honorable Wayne Sturtevant,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          29D05-1410-OV-8818



May, Judge.




Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                Page 1 of 11
[1]   Jason Maraman challenges his citation for speeding. As the Carmel city

      ordinance under which Maraman was ticketed was void, the trial court should

      have granted Maraman’s motion to dismiss. We must accordingly reverse. 1


                                    Facts and Procedural History
[2]   Maraman was stopped for speeding in Carmel. The complaint and summons

      issued to Maraman indicated he was driving 30 miles per hour when the speed

      limit was 20, 2 “[c]ontrary to the form of the . . . Local Ordinance in such case

      made and provided. L.O. No. 8-2.” 3 (Appellant’s App. at 10.) The Carmel

      City Court entered judgment against him and he asked for a trial de novo.


[3]   When the cause was moved before the trial court, Maraman filed a motion to

      dismiss that alleged, in pertinent part:




      1
        As we reverse on that ground, we need not address Maraman’s argument the trial court erred in denying
      his jury demand.
      2
        The Complaint and Summons indicates the “vehicle speed” was “30” and the “prima facie speed” where
      Maraman was stopped was “20.” Both numbers appear incorrect. Ind. Code § 9-21-8-53 provides that in
      every charge of violation of a speed regulation, the complaint “must specify the following: (1) The speed at
      which the defendant is alleged to have driven. (2) The prima facie or fixed speed applicable within the district
      or at the location.”
      There was evidence the officer clocked Maraman “at a speed of thirty-five (35) miles per hour in a posted
      twenty (20) miles per hour zone [sic] construction zone.” (Br. of Appellee at 4.) The officer testified he
      “wrote [Maraman] for 30 in a 20 mile per hour” instead of “35 in a 20” because he “tried to be
      compassionate due to the area.” (Tr. at 17.) The area where Maraman was driving was a construction zone,
      but the officer did not “cite this in a construction zone” because of “[a]gain, compassion.” (Id.)
      Nor does it appear the “prima facie” speed at that location was twenty miles per hour. There was testimony
      the normal speed limit in the area, i.e., the “prima facie” speed, was thirty miles per hour and not twenty as
      indicated on the Complaint and Summons. The speed limit had been reduced to twenty due to construction.
      3
        That part of the complaint and summons included two boxes that could be checked – one for the applicable
      “State Statute” and one for the “Local Ordinance.” (Appellant’s App. at 10.) The “State Statute” box was
      not checked. The “Local Ordinance” box was.

      Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                         Page 2 of 11
              Failure to State a Claim Upon Which Relief Can Be Granted


              12. The complaint in the above captioned matter alleged
              Defendant violated Carmel City Ordinance 8-2 which states:


                       Unless otherwise provided herein, the provisions set forth
                       in I.C.,[sic] 9-21-1-1 through 9-21-20-3 (Traffic
                       Regulations) are adopted by reference and made a part of
                       this chapter with the same force and effect as though set
                       forth here verbatim. (Carmel City Ordinance 8-2)


              13. The powers granted to and specifically withheld from a city
              are governed by I.C. 36-1-3, commonly referred to as the Home
              Rule Act.


              14. The power to prescribe a penalty for conduct constituting a
              crime or infraction under statute is a power which is specifically
              withheld pursuant to I.C. 36-1-3-8(a)(8).


              15. Carmel City Ordinance 8-2 simply incorporates by reference
              the portion of Indiana Code which defines motor vehicle
              infractions. Therefore, the ordinance is a prima facie violation of
              I.C. 36-1-3-8(a)(8) rendering the ordinance null and void. As
              such, the ordinance is unenforceable and fails to state a claim
              upon which relief may be granted. Thus the complaint should be
              dismissed.


      (Appellant’s App. at 16) (header bolded in original).


[4]   The trial court denied Maraman’s motion to dismiss. Thereafter, the court

      found Maraman “did commit . . . the infraction of Speeding under Carmel City

      Code 8-2,” (id. at 5) (emphasis added), and it entered judgment against him.


      Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015   Page 3 of 11
                                       Discussion and Decision
[5]   We review purely legal issues de novo, and an issue presented on appeal is a pure

      question of law when it does not require reference to extrinsic evidence,

      inferences drawn from that evidence, or the consideration of credibility

      questions. Cunningham v. State, 835 N.E.2d 1075, 1076 (Ind. Ct. App. 2005),

      trans. denied. This is such a question.


[6]   The trial court found Maraman violated “Carmel City Code 8-2.” (App. at 5.)

      That portion of Carmel’s Code provided that it “adopted by reference and made

      a part of this chapter with the same force and effect as though set forth here

      verbatim” chapters 1 through 20 of Indiana Code Article 9-21, which controls

      traffic regulations. 4 Carmel City Code 8-2. Included in the sections of the

      Indiana Code that Carmel asserts to have adopted through that ordinance are

      numerous statutes that define traffic infractions. 5




      4
       The only chapter of Article 9-21 that was not adopted was Chapter 21, which is entitled “Farm Vehicles
      Involved in Commercial Enterprises.”
      5
        See, e.g., Ind. Code § 9-21-3-11 (“A person who violates section 7, 8, or 9 of this chapter commits a Class C
      infraction.”); Ind. Code § 9-21-4-19 (“A person who violates section 4, 5, 6, 16, 17, or 18 of this chapter
      commits a Class C infraction.”); Ind. Code § 9-21-5-1(b) (“A person who drives at a speed greater than is
      reasonable and prudent for the given weather or road conditions commits a Class C infraction.”); Ind. Code §
      9-21-5-2(b) (“A person who violates subsection (a) [setting speed limits on various kinds of highways and in
      urban districts] commits a Class C infraction.”); Ind. Code § 9-21-5-4(b) (“A person who fails to drive at a
      reduced speed as required under subsection (a) commits a Class C infraction.”); Ind. Code § 9-21-5-5(b) (“A
      person who operates [an oversized] vehicle to which subsection (a) applies at a speed greater than fifty-five
      (55) miles per hour commits a Class C infraction.”); Ind. Code § 9-21-5-7(b) (“A person who fails to give
      right-of-way as required by subsection (a) commits a Class C infraction.”); Ind. Code § 9-21-5-8.5(b) (“A
      person who operates a low speed vehicle on a highway that has a speed limit in excess of thirty-five (35) miles
      per hour commits a Class C infraction.”); Ind. Code § 9-21-5-9(d) (“A person who violates this section
      commits a Class C infraction.”); Ind. Code § 9-21-5-10(d) (“A person who exceeds the speed limit sign posted
      on a bridge or other elevated structure under this section commits a Class C infraction.”); Ind. Code § 9-21-5-
      14(c) (“A person who knowingly or intentionally exceeds a speed limit set forth in subsection (a) or (b) [for

      Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                       Page 4 of 11
[7]   Maraman notes Indiana’s “Home Rule” laws, found in Indiana Code Chapter

      36-1-3, provide municipalities do “not have . . . [t]he power to prescribe a

      penalty for conduct constituting a crime or infraction under statute.” Ind. Code

      § 36-1-3-8(a)(8). He also cites Mitsch v. City of Hammond, 234 Ind. 285, 125

      N.E.2d 21 (1955), reh’g denied, in which our Indiana Supreme Court held an

      earlier version of our Home Rule law 6 meant that an Indiana city could not




      buses] commits a Class C misdemeanor.”); Ind. Code § 9-21-6-3 (“A person who violates this chapter
      [regarding speed contests] commits a Class B misdemeanor . . . .”); Ind. Code § 9-21-7-13 (“A person who
      violates this chapter [regarding vehicle equipment] commits a Class C infraction.”); Ind. Code § 9-21-8-35
      (defining Class A and Class B infractions related to emergency vehicles); Ind. Code § 9-21-8-49 (“Except as
      provided in [other sections] of this chapter, a person who violates this chapter commits a Class C
      infraction.”); Ind. Code § 9-21-8-50 (creating Class B misdemeanor for reckless operation of tractor-trailer);
      Ind. Code § 9-21-8-51 (failing to dim lights for others is a Class B infraction); Ind. Code § 9-21-8-52 (creating
      misdemeanor reckless driving offenses); Ind. Code § 9-21-8-55 (defining misdemeanor aggressive driving);
      Ind. Code § 9-21-8-56 (defining misdemeanor reckless driving in work zone); Ind. Code § 9-21-8-58 (improper
      carrying of metal coils is a misdemeanor); Ind. Code § 9-21-9-7 (“A person who violates this chapter
      [regarding slow moving vehicles] commits a Class C infraction.”); Ind. Code § 9-21-10-13 (“A person who
      violates this chapter [regulating motorcycles] commits a Class C infraction.”); Ind. Code § 9-21-11-14 (“A
      person who violates this chapter [regulating bicycles and motorized bicycles] commits a Class C infraction.”);
      Ind. Code § 9-21-12-1 (failing to heed school bus arm signal is a Class A infraction); Ind. Code § 9-21-12-5
      (creating infraction and misdemeanor for failure to follow rules at railroad crossing); Ind. Code § 9-21-12-7
      (creating infractions related to fire trucks); Ind. Code § 9-21-12-13 (failure to extend signal arm on school bus
      is a Class C misdemeanor); Ind. Code § 9-21-12-14 (school bus driver who knowingly fails to use turn signal
      commits Class C misdemeanor); Ind. Code § 9-21-12-15 (school bus driver’s knowing failure to appropriately
      use flashing stop lights commits Class C misdemeanor); Ind. Code § 9-21-12-16 (creating Class C
      misdemeanors related to “prohibited area” of school bus); Ind. Code § 9-21-12-18 (creating Class C
      misdemeanor for operating bus with obstructed exits); Ind. Code § 9-21-13-7 (“A person who violates this
      chapter [regarding funeral processions] commits a Class C infraction.”); Ind. Code § 9-21-14-8 (“A person
      who violates this chapter [regarding marching bands] commits a Class C infraction.”); Ind. Code § 9-21-15-8
      (“A person who violates this chapter [regarding disabled vehicles] commits a Class C infraction.”); Ind. Code
      § 9-21-16-9 (“A person who violates this chapter [regarding parking] commits a Class C infraction.”); Ind.
      Code § 9-21-17-24 (“A person who violates this chapter [regarding pedestrians] commits a Class C
      infraction.”); Ind. Code § 9-21-18-15 (improper installation of sign is a Class C infraction); Ind. Code § 9-21-
      19-8 (“A person who violates this chapter commits a Class C infraction.”).
      6
        The statute the Mitsch court addressed was a motor vehicle law at Ind. Code § 47-1827, Burns’ 1952 Repl.,
      which provided “the provisions of this act shall be applicable and uniform throughout this state and in all
      political subdivisions and municipalities therein and no local authority shall enact or enforce any rule or
      regulation in conflict with the provisions of this act unless expressly authorized herein.” Our Supreme Court
      determined the expression “no local authority shall enact or enforce any rule or regulation in conflict with the
      provisions of this act unless expressly authorized herein” could not “be construed as . . . authorizing the

      Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                         Page 5 of 11
       enforce an ordinance that duplicated a penal statute of Indiana. Id. at 292, 125

       N.E.2d at 24-25.


[8]    In response, Carmel provides a number of arguments to support the validity of

       its ordinance despite the Home Rule law. 7 We shall address each individually.


[9]    Carmel first argues that its ordinance “does not prescribe a penalty for conduct

       constituting a crime or infraction under statute.” (Appellee’s Br. at 20) (internal

       citations omitted). However, as Carmel’s one sentence ordinance merely

       adopted wholesale the very statutes that define traffic infractions, see supra notes

       4 and 5, Carmel’s argument is not well taken. 8


[10]   Carmel also argues it had authority to adopt City Code 8-2 because it “seeks to

       enforce moving traffic violations which [sic] occur on local City roadways.”

       (Br. of Appellee at 20.) 9 However, as we explained nearly forty years ago:




       duplication of state criminal statutes by municipal ordinances.” Mitsch v. City of Hammond, 234 Ind. 285, 292,
       125 N.E.2d 21, 24-25 (1955), reh’g denied.
       7
           Carmel does not however address, or even acknowledge, the Mitsch decision.
       8
         Carmel also asserts Carmel City Code § 8-2 is valid because it “is not ambiguous. It is clear, precise, and
       can be understood with reasonable certainty.” (Appellant’s Br. at 19.) We cannot disagree -- that one
       sentence adopting and incorporating the majority of Indiana Code Article 9-21 is neither ambiguous nor
       difficult to understand. Nevertheless, Maraman did not assert the Ordinance was vague. He asserted it was
       invalid because it attempted to create a penalty for conduct that was already an infraction under State law.
       In light of the thrust of Maraman’s argument, we fail to see the relevance of Carmel’s “precise wording”
       argument.
       9
         It cites in support Ind. Code § 36-1-6-3, but nothing in that section has any apparent application to this case.
       That section first provides certain ordinances may be enforced by a municipal corporation “without
       proceeding in court through . . . an admission of the violation . . . or administrative enforcement.” Ind. Code
       § 36-1-6-3. But here, Carmel did proceed in court. Next, that section provides an ordinance defining a
       moving traffic violation must be enforced in accordance with Ind. Code chapter 34-28-5. Id. But here,

       Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                          Page 6 of 11
               There is no question that the State controls all public highways and
               streets in Indiana. Under such authority, the State enacted IC
               1971, 9-4-1-57 (Burns Code Ed.), which provides for a thirty mile
               per hour speed limit in any urban district, and a fifty-five mile per
               hour speed limit on interstate roads and other locations.


       State, By and Through Indiana State Bd. of Accounts v. Town of Roseland, 178 Ind.

       App. 661, 667, 383 N.E.2d 1076, 1080 (1978) (emphasis added). See also Ind.

       Code § 9-21-1-1 (“Except as provided in sections 2, 3, and 3.3 of this chapter,

       this article applies throughout Indiana.”).                Municipalities may “adopt by

       ordinance additional traffic regulations,” but such ordinances “may not conflict

       with or duplicate a statute.” Ind. Code § 9-21-1-2(a).


[11]   Carmel next asserts its ordinance is valid because a speeding ordinance is

       “deemed effective when signs providing notice of the local traffic regulations

       are posted upon or at the entrances to the highway affected.” (Br. of Appellee at

       20) (citing Ind. Code § 9-21-1-3(b)). That subsection provides: “An ordinance

       or regulation adopted under subsection (a)(4), (a)(5), (a)(6), (a)(7), (a)(8),

       (a)(10), (a)(11), (a)(12), (a)(13), or (a)(14), is effective when signs giving notice

       of the local traffic regulations are posted upon or at the entrances to the

       highway or part of the highway that is affected.” Ind. Code § 9-21-1-3(b).


[12]   Carmel does not indicate which, if any, of those ten subsections might be

       relevant to these proceedings or offer explanation why the Carmel ordinance




       Maraman has not alleged Carmel failed to follow the proper procedure in enforcing its ordinance; rather, he
       is arguing no valid ordinance exists to be enforced.

       Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                     Page 7 of 11
       was effective pursuant to that statute. We therefore cannot uphold the

       ordinance on that ground. See, e.g., Ind. R. App. P. 46 (argument on appeal

       must be supported by cogent reasoning); and see Daniels v. State, 515 N.E.2d 530,

       530 (Ind. 1987) (failure to present cogent argument operates as waiver of issue

       on appeal).


[13]   Notwithstanding the waiver, while placing traffic signs on the affected roads

       makes the ordinance “effective,” Ind. Code § 9-21-1-3(b), the ordinance first

       had to be adopted under Ind. Code § 9-21-1-3(a). To meet the requirements of

       subsection (a), any action taken by a municipality must occur “in accordance

       with sections 2 and 3.3(a) of this chapter,” Ind. Code § 9-21-1-3(a), and each of

       those sections expressly states any ordinance adopted “may not conflict with or

       duplicate” state law. Ind. Code § 9-21-1-2(a) (“may not conflict with or

       duplicate a statute”); Ind. Code § 9-21-1-2(b) (“may not conflict with or

       duplicate state law”); Ind. Code § 9-21-1-3.3(a) (“may not . . . conflict with or

       duplicate another state law”). Thus, Carmel’s reliance on Ind. Code § 9-21-1-

       3(b) leaves it in the same predicament that caused its ordinance to be invalid

       under the Home Rule cited by Maraman – Carmel’s wholesale adoption of

       chapters of Indiana Code resulted in its ordinance being nothing more than a

       “duplicate” of already existing State law.




       Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015   Page 8 of 11
[14]   Carmel’s next argument relies on a statute dealing with construction zones.10

       Carmel correctly notes one of the adopted statutes permits a local authority to

               establish temporary maximum speed limits in their respective
               jurisdictions and in the vicinity of a worksite without conducting
               an engineering study and investigation required under this article.
               The establishing authority shall post signs notifying the traveling
               public of the temporary maximum speed limits established under
               this section.


       Ind. Code § 9-21-5-11(a). Nevertheless, the fact that the State gave

       municipalities the power to modify speed limits in work zones within their

       municipalities did not, ipso facto, also give the municipalities the authority to

       collect fines by local ordinance on any such modified speed limit. That the

       State did not relinquish such authority is evident from the other subsections of

       the statute that Carmel cites:

               (d) . . . a judgment for the infraction of violating a speed limit set
               under this section must be entered as follows:


                        (1) If the person has not previously committed the
                        infraction of violating a speed limit set under this section, a
                        judgment for a Class B infraction and a fine of at least
                        three hundred dollars ($300) shall be imposed.


                        (2) If the person has committed one (1) infraction of
                        violating a speed limit set under this section in the




       10
         This reliance is premised on the allegation that Maraman was in a construction zone when he was ticketed
       for speeding, although the officer did not write the ticket to so indicate. See supra n.2.

       Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015                   Page 9 of 11
                        previous three (3) years, a judgment for a Class B
                        infraction and a fine of at least five hundred dollars ($500)
                        shall be imposed.


                        (3) If the person has committed two (2) or more infractions
                        of violating a speed limit set under this section in the
                        previous three (3) years, a judgment for a Class B
                        infraction and a fine of one thousand dollars ($1,000) shall
                        be imposed.


                 (e) . . . the funds collected as judgments for the infraction of
                 violating a speed limit set under this section shall be transferred
                 to the Indiana department of transportation to pay the costs of
                 hiring off duty police officers to perform the duties described in
                 IC 8-23-2-15(b).


       Ind. Code § 9-21-5-11. Thus, while a city may modify a speed limit in a

       construction zone within the city, the recourse for the violation of such speed

       limit remains an infraction prohibited and punishable according to state statute.

       See id.


[15]   Finally, Carmel directs us to Ind. Code § 36-1-5-4, which provides “[t]he

       legislative body of a unit may incorporate by reference into an ordinance or

       code any material.” Carmel does not offer argument or explanation why this

       section has the effect of nullifying the Home Rule statute, Ind. Code § 36-1-3-8,

       or the statutes in the Article controlling Traffic Regulation, e.g., Ind. Code § 9-

       21-1-2, and we decline to hold it nullifies those other statutes. While Carmel

       may incorporate material by reference, it may not incorporate in a way that

       duplicates the statutes that create statewide traffic infractions. See, e.g., Ind.


       Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015     Page 10 of 11
       Code §§ 9-21-1-2, 36-1-3-8. If a city wishes to establish local speed limits, it

       may do so in accordance with Ind. Code §§ 9-21-5-3(1), 9-21-5-6, and 9-21-1-

       3(a)(11) which gives the city the authority to adopt ordinances altering speed

       limits within the city; however, it is nevertheless prohibited from simply

       duplicating state imposed speed limits as Carmel City Code § 8-2 attempts to

       do.


                                                  Conclusion
[16]   As the ordinance under which Carmel wished to prosecute Maraman was

       invalid, Maraman’s motion to dismiss should have been granted. We must

       therefore reverse.


[17]   Reversed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 29A05-1504-OV-145 | December 11, 2015   Page 11 of 11
