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Jefferson County Plan Commission v. Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC.

Jefferson County Plan Commission v. Joseph Chapo and Sherry Chapo.

Joseph Chapo and Sherry Chapo v. Jefferson County Plan Commission.

Joseph Chapo, Sherry Chapo, Deputy Big Shot, LLC v. Jefferson County, Indiana; Darrell M. Auxier, R. Patrick Magrath, Jefferson County Plan Commission, Warren Auxier, Jeffrey Daghir, Lonnie Mason, Gene Riedel, Jerry Yancy, Dennis Boyer, Virginia Franks, Laura Boldery, Jefferson County Board of Zoning Appeals, James Griffith, Robert Jacobson, Mike Shelton, Alana G. Jackson, Jesse Duquette, Tamara Duquette, Jeffrey Sharp, Jefferson County Circuit Court, Court of Appeals of Indiana.

Jefferson County Plan Commission v. Joseph Chapo and Sherry Chapo.
Joseph Chapo and Sherry Chapo v. Jefferson County Plan Commission.
Joseph Chapo, Sherry Chapo, Deputy Big Shot, LLC v. Jefferson County, Indiana; Darrell M. Auxier, R. Patrick Magrath, Jefferson County Plan Commission, Warren Auxier, Jeffrey Daghir, Lonnie Mason, Gene Riedel, Jerry Yancy, Dennis Boyer, Virginia Franks, Laura Boldery, Jefferson County Board of Zoning Appeals, James Griffith, Robert Jacobson, Mike Shelton, Alana G. Jackson, Jesse Duquette, Tamara Duquette, Jeffrey Sharp, Jefferson County Circuit Court, Court of Appeals of Indiana.

The applicants’ attorney informs as follows:
In 1991, the applicants, Joseph and Sherry Chapo, purchased their property in Deputy, Indiana and set up a shooting range.  They own and operate the only public shooting range in Jefferson County, Deputy Big Shot, LLC.
In August of 2012, Jefferson County passed the Jefferson County Zoning Ordinance.  The ordinance did not address shooting ranges or gun shops in the Agricultural Zone in which the Chapo’s property was now located.  The Chapos made an inquiry with the Jefferson County Plan Commission regarding both uses and were instructed by the Secretary of the Jefferson County Board of Zoning Appeals and the Jefferson County Plan Commission that a permit was required for each use.  The applicants filed the required applications.  On October 2, 2012, the Board of Zoning Appeals approved the gun shop application and deferred the range application.  On November 11, 2012, the Board of Zoning Appeals denied the range conditional use application.
 
On October 24, 2012, the applicants “organized and registered Deputy Big Shot[,] LLC in Indiana to include a gun shop and expand the original shooting range to accommodate the public.”  By January 2013, Deputy Big Shot, LLC had applied for and received a federal firearms license and had registered with Indiana to sell handguns. 
On November 7, 2012, the Jefferson County Board of Zoning Appeals denied the range conditional use application solely on noise, without any such provision in the cited ordinance and contrary to state law.
On March 31, 2016, neighbors Jesse and Tamara Duquette filed a complaint with the Jefferson County Zoning Officer against Deputy Big Shot, LLC and the Chapos.  On April 6, 2013, the Zoning Enforcement Officer served the applicants with an enforcement order to discontinue the illegal use of the land, building, and structures.  On April 19, 2016, the applicants responded in writing to the zoning enforcement order.  A public hearing regarding these alleged zoning violations was held on April 20, 2016.  On April 27, 2016, the Zoning Enforcement Officer issued an amended enforcement order.  
On May 25, 2016, the Jefferson County Plan Commission filed a complaint and injunction only against the Chapos, even though Deputy Big Shot, LLC was actually operating the shooting range.  On November 17, 2016, the Madison County Circuit Court issued a preliminary injunction enjoining Joseph and Sherry Chapo from operating the range.  The applicants filed an interlocutory appeal on December 14, 2016.  
Deputy Big Shot, LLC was added as a Defendant in an amended complaint on December 20, 2016.  On January 4, 2017, a preliminary injunction was issued enjoining Joseph and Sherry Chapo and Deputy Big Shot, LLC from operating the range.  The applicants appealed the granting of the preliminary injunctions to the Indiana Court of Appeals.  On June 15, 2017, the applicants filed their appellate brief.  On August 14, 2017, Jefferson County Plan Commission filed its appellate brief and a motion to strike.  On October 2, 2017, the applicants filed their reply brief.
In the meantime, litigation continued in the trial court.  On February 1, 2017, the applicants filed a 12(b)(6) motion to dismiss based on the following grounds:
The Amended Complaint fails to state a claim upon which the Court can grant relief for the following reasons:
1. JCPC fails to establish an ordinance or provision of an ordinance was violated;
2. The attempt to enjoin the defendants from operating a shooting range is in violation of the 2nd Amendment right to bear arms and Article I, Section 32;
3. The attempt to enjoin the Defendants from operating a shooting range is prohibited by the Jefferson County Home Rule; and
4. The attempt to regulate the Defendants from operating a shooting range is in violation of the Indiana Range Protection Act §14-22-31.5[.]
On July 14, 2017, the Jefferson County Plan Commission filed a citation for contempt and a motion to enforce.
On September 7, 2017, the trial court heard the applicants’ motion to dismiss and the Jefferson County Plan Commission’s motion for contempt.  On October 17, 2017, the trial court issued an order denying the applicants’ motion to dismiss and granted the Jefferson County Plan Commission’s motion for contempt. 
On October 26, 2017, the Jefferson County Plan Commission filed a motion for a permanent injunction.  On October 30, 2017, the Circuit Court stayed the proceedings pending the appeal.  The stay, however, did not affect the preliminary injunctions nor the finding of contempt.  
On November 17, 2017, the applicants filed, with the Indiana Court of Appeals, an emergency motion to stay the proceedings in the trial court pending the appeal.  On May 29, 2018, the Indiana Court of Appeals denied the motion for an emergency stay and issued an opinion upholding the Circuit Court’s opinion.  Both the November 17, 2017, order and the January 4, 2018, order were upheld by the Court of Appeals.  On June 26, 2018, the applicants filed a petition for rehearing, which was denied on November 1, 2018. 
  The original judge recused himself in November of 2017, and, on December 6, 2018, a new judge was assigned to the case.  On January 11, 2019, the new judge lifted the stay.  On February 10, 2019, the applicants filed an answer.  On February 11, 2019, the applicants filed a motion for judgment on the pleadings.  On February 20, 2019, the JCPC filed a response and a motion to strike to which the applicants field a reply and a response.  On February 26, 2019, the applicants filed responses thereto.  A hearing occurred on July 12, 2019, on the motions.  On November 25, 2019, the Court ruled adversely on the applicant’s motions but denied Jefferson County’s motion for sanctions against the applicants.
The applicants filed a motion for summary judgment.  A March 3, 2020, order set a hearing date on the motion for May 27, 2020, and a trial date was set for July 7, 2020.  However, on May 21, 2020, the applicants filed a Motion to Stay Trial Court pending Appeal.  On June 24, 2020, a stay pending the appeal was granted.
The appeal was taken because Rule 60 of the Indiana Trial Rules allows an interlocutory Rule 60(B) motion to be filed and when the motion is denied it is deemed a final judgment for appeal. The Chapos filed the Rule 60(B)(6) motion based on the JCPC not having standing to bring an action, because of the failure of the members to take and deposit their oaths of office. Since, the offices were vacant as a matter of law, the member are usurpers, not entitled to de facto officer status. These issues are of first impression in the State of Indiana. The Chapos anticipate the appellate court will uphold the law. Otherwise, IC §§5-4-1-1(a) and 5-4-1-1.2 will be rendered meaningless and public officers will be free to violate the requirement to take an oath of office.
On July 30, 2020, the applicants filed a corrected appellants’ brief.  On August 31, 2020, the defendants filed their appellee brief.  On September 14, 2020, the applicants filed their reply brief.
On January 22, 2021, the Indiana Court of Appeals held that “the IC §5-4-1-1 oath requirement applied to the JCPC and that the individuals claiming to hold the JCPC offices were entitled to de facto officer status  …  .  The Court rejected any reliance on the declaration of a vacant office for failing to take and deposit an oath per IC §5-4-1-1.2(c) and (d).”  The applicants filed a petition for rehearing.  On March 8, 2021, the Jefferson County Plan Commission filed its response to the applicants’ petition for rehearing.  On March 8, 2021, the Indiana Court of Appeals denied the applicants’ petition for rehearing.
On April 7, 2021, the applicants filed a motion to transfer jurisdiction to the Indiana Supreme Court.  The question presented was framed as follows:
This court should grant the Petition to Transfer to address the question of “When a Rule 60(B)(6) Motion for Relief from Judgment focused solely on individuals’ failure to take and deposit oaths of office mandated by IC §5-4-1-1.2(c), are the Courts usurping the authority of the Indiana Legislature by granting individuals the status of de facto officers, when the Legislature declared the offices vacant per IC §5-4-1-1.2(d)?”
On May 27, 2021, the Indiana Supreme Court denied the motion to transfer jurisdiction.
On May 26, 2018, the applicants also filed a 1983 action in the United States District Court for the Southern District of Indiana based on the violations of the plaintiffs’ Second- Amendment rights.  The applicant argues as follows:
1. The Jefferson County Board of Zoning Appeals had no Constitutional authority, nor legal authority to require the Chapos to obtain a conditional use permit in 2012, based on the Ezell case, Indiana Shooting Range law, and the fact that the Jefferson County Zoning ordinance had no provision addressing shooting ranges; 
2. The Jefferson County Plan Commission had no Constitutional authority, nor legal authority to initiate an action against the Chapos in 2016, based on the Ezell case, Indiana Shooting Range law, and the fact that the Jefferson County Zoning Ordinance had no provision addressing shooting ranges. Without a violation of a provision the Jefferson County Plan Commission had no jurisdiction [to] initiate the lawsuit;
 
3. [The state court] had no subject matter or personal jurisdiction to hear the case. 
…
The actions of some of the defendants in 2012 also ignored and violated the Indiana Shooting Range statutes, Chapter IC §14-22-31.5 which protected shooting ranges in existence prior to July 1, 1996. The statutes protected said ranges from noise liability (IC §14-22-31.506) and allows said ranges to “Expand or increase the membership of the shooting range or opportunities for public participation at the shooting range,” (IC §14-22-31.5-7(3)). The Indiana Shooting Range statutes prohibit local government from pursuing shooting ranges for activities falling under the Shooting Range statutes. Any actions by local governments in violation of the Shooting Range statutes have strong subject matter jurisdiction implications. The 1983 action also sought preliminary injunctions against the Jefferson County Circuit Court and the Indiana Court of Appeals.
…
The Federal case is waiting on two appeals of the Magistrate’s decision, the one filed on 5/29/2020 appealing the Magistrate’s decision denying a stay pending the appeal in the state case, and the one filed on 8/4/2020 appealing to Magistrate’s decision to allow discovery while the 5/29/2020 appeal was pending. The District Court Judge has yet to rule on either appeal.
On March 10, 2021, the United States District Court issued a show cause order, requiring the applicants to show cause why the federal case should not be dismissed on federalism grounds.  The Court reasoned as follows:
…  Younger v. Harris, 401 U.S. 37 (1971)  …  generally requires federal courts to abstain in cases between a federal plaintiff and a state defendant when there is concurrent state-court litigation brought by the state to vindicate its own policies. 
…
This case seems to tee up a fairly straightforward application of Younger.  First, there is on-going state litigation brought by the state.  The Commission has sued the Chapos in state court.  It so far has obtained a preliminary injunction preventing the Chapos from operating their gun range.  The case is currently on appeal but soon will be proceeding to summary judgment.  Second, this litigation would interfere with the state court litigation because the issue in that litigation—whether the ordinance violates the Chapo’s Second Amendment rights—is identical to this case.  This court cannot possibly rule on that question without interfering with the state court case.  Third, the Chapos have an adequate opportunity to raise their constitutional claims in the state court litigation; in fact, they ‘have vigorously raised the protections of the [Second] Amendment as a defense.’
On March 22, 2021, the applicants filed their response to the order to show cause. 
They argued that Younger is inappropriate for three reasons: (1) the issues in this case do not implicate important state interests, (2) there was no adequate opportunity to bring their constitutional defenses, and (3) extraordinary circumstances counsel against abstention.
On March 25, 2021, the United States District Court held as follows:
None of these arguments are persuasive.  …  The court will therefore abstain under Younger and dismiss the Chapo’s claims for equitable relief. The court will retain jurisdiction over the Chapo’s claims for damages pending the outcome of the state court suit.
The applicant appealed, eventually filing a petition for a writ of certiorari in the United States Supreme Court on or about August 29, 2021.  On September 24, 2021, the Jefferson County Plan Commission filed its brief in opposition to certiorari.  On October 6, 2021, the applicant filed its reply brief.  On November 1, 2021, the United States Supreme Court denied the petition.
In state court, the Circuit Court held a hearing for the motions for summary judgment on January 24, 2022.  The Court denied the applicants’ motion and granted Jefferson County Plan Commission motion on February 24, 2022.  A motion for reconsideration was filed, but it was denied.
Subsequently, “it was determined that the summary judgment order was not a final judgment as the Court failed to address the penalties requested by the Plan Commission.”  
After the Supreme Court decision in New York State Rifle & Pistol Association, Inc., et al, v. Bruen, et al, the applicant’s attorney informs:
The 2nd Amendment right has now been deemed to have superiority over local zoning law per New York State Rifle & Pistol Association, Inc., et al, v. Bruen, Superintendent of New York State Police, et al, 142 S.Ct. 2111 (June 23, 2022). The recent case of Oakland Tactical Supply, LLC. v. Howell Township, Michigan, 2022 U.S. App. LEXIS 21744 (August 5, 2022) has applied Bruen decision to shooting ranges.
On August 12, 2022, the applicant filed a notice of new authority and motion for reconsideration in light of new authority with the Circuit Court.  On August 29, 2022, the Jefferson County Plan Commission filed a response to notice of new authority and motion.  On August 30, 2022, the applicants filed a reply. On September 6, 2022, the Court denied the applicants’ motion for reconsideration.
The Jefferson County Plan Commission filed a motion for a final judgment to address fines and destruction of property.  The Circuit Court held a hearing on that motion on November 14, 2022.  “At the hearing the Court refused to hear any arguments except the ones directly dealing with the issues of fines and the destruction of property.”  
On February 2, 2023, the court granted a final judgment.
On March 3, 2023, the applicants filed their notice of appeal to the Indiana Court of Appeals.  
The Appellant Brief focuses on the Circuit Court’s Summary Judgment order of February 24, 2022,  ...  as it violated numerous legal principles. The essence of the order was that it treated the case as a zoning issue as opposed to a legal and constitutional issue.  A quick summary of the appeal is as follows:
1. Completely misconstrued the 2nd Amendment and the two cases of Bruen and Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) arguments;
2. The court applied the res judicata doctrine to the 2012 decision of the Jefferson County Board of Appeals. This is contrary to Sauer v. Board of Zoning Appeals, 629 N.E.2d 893, 897-898 (Ind. App. 1994) (the court found that it is a derogation of the common law to restrict the free use of property. Such an ordinance must be strictly construed). Thus, the 2012 decision is legally void;
3. The action of the zoning board was void at it violated Indiana law;
4. The action of the zoning board in denying the shooting ranges exceeded its scope of authority under Indiana law;
5. The ordinance claimed to be enforced had no provisions regulating shooting ranges;
6. The Chapos shooting range was built in 1991, not 2012) and the court applied a definition of a shooting range that is not in the Indiana Shooting Range Protection Act;
7. It should also be noted that that neither the JCBZA, nor the JCPC have ever taken an oath of office as required by Indiana law. The prior appeal of the issue did not decide the issue as the appellate court did not address the Indiana law that declared the office vacate if no oath was taken, 164 N.E.2d 131 (January 22, 2021). Thus, it is still a viable issue; and
8. Failed to consider material facts in which there is a genuine dispute: 1.) the Chapos did not prepare the application. It was prepared by the secretary of JCBZA after consulting with JCBZA’s attorney. The Court effectively treated the Chapos’ signature a waiver of the 2nd Amendment rights causing it to conclude the activities of the Chapos in using a shooting range was a zoning violation. Thus, it concluded no 2nd Amendment rights were implicated  ...  “Contrary to the Chapos’ broad and unsupported assertion, their Second Amendment rights have not been implicated by enforcement of the Jefferson County zoning ordinances,[”] and ... “The Jefferson County Plan Commission's enforcement of the Jefferson County Zoning Ordinance does not violate the Chapo’s rights under the Second Amendment[.”]
On December 7, 2023, the Indiana Court of Appeals issued an adverse decision, holding that “the Chapos are barred from challenging the BZA’s 2012 decision that they did not appeal. We also conclude the sanctions were proper.”  On January 5, 2024, the applicants filed a petition for rehearing.  The Court denied the petition on February 19, 2024.
On March 19, 2024, the applicants filed a petition to transfer to the Indiana Supreme Court.  The petition to transfer to the Indiana Supreme Court case is pending.  There has been no activity in the federal case as it is stayed pending the conclusion of the State case.

 

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