INDIANAPOLIS – Aqua Indiana made its case before the Indiana Supreme Court on Thursday that a jury should decide how much the city should pay for its 2002 takeover of the utility’s northern system.

Meanwhile, attorneys for Fort Wayne argued the utility is only allowed a limited review by a judge on the price and can’t offer new evidence to counter city appraisals.

It was the second time the state’s highest court has stepped into the decade-old debate.

In 2007, the Supreme Court upheld the city’s takeover of Aqua Indiana north. While that settled the legal dispute over the city’s authority to declare eminent domain and take over the utility, the price the city must pay is still in dispute.

The city, through its Board of Public Works, said the company should get about $17 million.

Misty Smith Kelley, attorney for Aqua Indiana, pointed out that, under the state law that governs such takeovers, or condemnations, property owners have a right to have the value set in a trial involving three independent appraisers.

But the appellate court ruling in this case said no jury trial is allowed and the judge is limited to reviewing evidence already provided to the Board of Public Works.

Kelley called them “two drastically different procedures for condemnation.”

The reason the utility is pushing for a full review is that Aqua Indiana didn’t submit its own appraisal at the time to the board. It merely filed a written brief alleging what was wrong with the city’s estimate of worth.

She said the utility didn’t boycott or loaf through the administrative procedure.

“It simply never occurred to the company that our one-and-only shot to present an appraisal was in a written response with 10 days’ notice,” she said.

Kelley, a Tennessee-based attorney specializing in eminent domain utility cases nationally, said the final price in such purchases is usually double what a municipality offers.

She argued the statute specifically allows for a de novo review – a Latin term meaning “from the beginning” or “beginning again” – and that it means just that, the process gets to start over.

Robert Keen, attorney for the city, said the utility’s argument doesn’t make sense because “by its very nature, an appeal doesn’t involve a jury trial.”

Supreme Court Justice Mark Massa pointed out that condemnation is the most extreme government power – taking of property – and asked why the term doesn’t mean what it says.

The court will rule in the coming months.

The conclusion of the case is considered vital before the city considers any effort to acquire Aqua Indiana’s southwest utility.

nkelly@jg.net