§ 20-23-5-10 — Remonstrances; form; filing; contents

(a) A remonstrance under section 8 of this
chapter must be in the following or a substantially similar form:
"The undersigned hereby remonstrate against the annexation of
the following described territory situated in ______ County,
Indiana, whereby it would be transferred from ______ (the losing
corporation) to _______ (the acquiring corporation):
(Description of the annexed territory sufficient to identify it.)".
The remonstrance may be filed in any number of counterparts. Each
counterpart shall have attached to it the affidavit of the person
circulating it that each signature appearing on the remonstrance was
affixed in the presence of the person circulating the petition and is the
true and lawful signature of the person who made the signature. The
person who makes the affidavit does not have to be one (1) of the
persons who signs the counterpart to which the affidavit is attached.
The remonstrance must be accompanied by a complaint filed by one (1)
or more of the remonstrators (who shall be treated as a representative
of the entire class of remonstrators) and signed by the remonstrator or
the remonstrator's attorney, stating the reasons for the remonstrance.
The reasons for the remonstrance are limited to the following:
(1) There is a procedural defect in the manner in which the
annexation is carried out that is jurisdictional.
(2) The annexed territory does not form a compact area abutting
the acquiring corporation.
(3) The benefits to be derived from the annexation are outweighed
by the detriments, taking into consideration the respective
benefits and detriments to the schools and of the students residing
in the acquiring school corporation, the losing school corporation,
and the annexed territory.
(4) The:
(A) disposition of assets and liabilities of the losing school
corporation;
(B) allocation of school tax receipts between the acquiring
school corporation and the losing school corporation; and
(C) amount to be paid by the acquiring school corporation as set
out in the annexation resolution;
are inequitable. Except with respect to subdivision (1), the
allegations may be made in the statutory language.
(b) The plaintiff in a remonstrance under section 8 of this chapter
must be the person whose name appears on the complaint. The
defendants in a remonstrance under section 8 of this chapter shall be
both the acquiring school corporation and the losing school
corporation. Service of process shall be made on the defendants as in
other civil actions.
(c) To determine if a petition was timely filed, the time of filing is
the time of filing with the clerk without regard to the time of issuance
of the summons. If the thirtieth day falls on Sunday, a holiday, or any
other day when the clerk's office is not open, the time shall be extended
to the next day when the office is open.
(d) The issues in a remonstrance under section 8 of this chapter are
made up by the complaint. The allegations in the complaint shall be
treated as denied by each defendant. A responsive pleading may not be
filed except that any defendant may, if appropriate, file a motion to
dismiss the remonstrance on the ground that:
(1) the requisite number of qualified remonstrators have not
signed the petition;
(2) the remonstrance was not timely filed; or
(3) the complaint does not state a cause of action.
A responsive pleading to this motion may not be filed. With respect to
a motion under subdivisions (1) and (2), the allegations of the pleading
shall be treated as denied by the remonstrators. To determine whether
there are the requisite number of qualified remonstrators, a person may
not withdraw the person's name after a remonstrance has been filed or
add the person's name to the remonstrance. Any person may, however,
at the trial of the cause and in support or derogation of the substantive
matters in the complaint, introduce into evidence a verified statement
that the person wishes the person's name added to or withdrawn from
the remonstrance. The court may either hear all or a part of the matters
raised by the motion to dismiss separately or may consolidate for trial
all or a part of the matters with the matters relating to the substance of
the case. A complaint may not be dismissed for failure to state a cause
of action if a fair reading of the complaint supports one (1) of the
grounds for remonstrance provided in subsection (a). The court may
permit an amendment of the complaint if the amendment does not state
a new ground of remonstrance.
(e) The trial of a remonstrance shall be conducted as other civil
cases by the court without the intervention of a jury on the issues raised
by the complaint or a motion to dismiss, or both. A change of venue
from a judge may be permitted. A change of venue from the county
may not be permitted. The court shall expedite the hearing of the case.
The court's judgment, except with respect to any matter raised under
subsection (a)(4), shall be either that:
(1) the annexation shall take place;
(2) the annexation shall not take place; or
(3) the remonstrance shall be dismissed.
If the court finds that the remonstrators have proved any of the reasons
for the remonstrance described in subsection (a)(1) through (a)(4), the
court's judgment shall be that the annexation may not take place.
Unless the remonstrators have proved at least one (1) of the reasons for
a remonstrance described in subsection (a)(1) through (a)(4), the court's
judgment shall be that the annexation shall take place. With respect to
any matter raised under subsection (a)(4), the court's judgment may be
either that the disposition, allocation, and amount set out in the
annexing resolution is equitable or that it is inequitable. In the latter
event, the court in the court's judgment shall provide for an equitable
disposition, allocation, and amount. Costs shall follow judgment.
Appeals may be taken from any judgment of the court in the same
manner as appeals are taken in other civil cases.
[Pre-2005 Elementary and Secondary Education
Recodification Citation: 20-4-4-5.]

Legislative History

As added by P.L.1-2005, SEC.7.