§ 36-4-4-5 — Uncertainty or dispute in nature of power or duty

(a) If uncertainty exists or a dispute arises
concerning the executive or legislative nature of a power or duty
exercised or proposed to be exercised by a branch, officer, department,
or agency of the government of a municipality, a petition may be filed
in the circuit court or superior court of the county in which the
municipality is located by the municipal executive, another municipal
elected official, the president of the municipal legislative body, or any
person who alleges and establishes to the satisfaction of the court that
the person is or would be adversely affected by the exercise of the
power; however, in a county that does not contain a consolidated city
and that has a superior court with three (3) or more judges, the petition
shall be filed in the superior court and shall be heard and determined
by the court sitting en banc.
(b) In a county containing a consolidated city, the petition shall be
heard and determined by a five (5) member panel of judges from the
superior court. The clerk of the court shall select the judges
electronically and randomly. Not more than three (3) members of the
five (5) member panel of judges may be of the same political party. The
first judge selected shall maintain the case file and preside over the
proceedings.
(c) The petition must set forth the action taken or the power
proposed to be exercised, and all facts and circumstances relevant to a
determination of the nature of the power, and must request that the
court hear the matter and determine which branch, officer, department,
or agency of the municipality, if any, is authorized to exercise the
power. On the filing of the petition, the clerk of the court shall issue
notice to the municipal executive, each municipal elected official, and
the president of the municipal legislative body, unless the petition was
filed by that person, and to the municipal attorney, department of law,
or legal division.
(d) The court shall determine the matters set forth in the petition and
shall affix the responsibility for the exercise of the power or the
performance of the duty, unless it determines that the power or duty
does not exist. Costs of the proceeding shall be paid by the
municipality, except that if an appeal is taken from the decision of the
court by any party to the proceeding other than the municipal
executive, another municipal elected official, or the president of the
municipal legislative body, the costs of the appeal shall be paid by the
unsuccessful party on appeal or in the manner directed by the court
deciding the appeal.
[Pre-Local Government Recodification Citation:
18-1-1.5-28.]
As added by Acts 1980, P.L.212, SEC.3. Amended by
P.L.69-1995, SEC.5; P.L.141-2007, SEC.3; P.L.84-2016,
SEC.172.