*1 question only we will consider “To determine this together appellee, most favorable evidence may be drawn reasonable inferences which therefrom. can only
It is lead an will is without conflict and evidence where conclusion, trial has reached and the court but to one conclusion, trial opposite decision of the court ground contrary to law.” on the set aside relating opinion earlier the evidence As in this discussed conflicting. negligence passenger contributory We alleged conflicting relating have set out evidence Thus, guidelines Pokraka, negligence appellee. under court cannot aside as supra, trial be set decision being contrary to law.
Judgment affirmed. Lybrook, JJ.,
Hoffman concur. Individually Hatcher, Albert Richard Jenkins Gordon Mayor City Gary, Indiana, as Fire Members, Civil Service Commission Individual Lowery, Wallace, Robert Eli Mandich and Paul G. Board Safety, Members, Public Works and the Individual Henry Coleman, Plumb, Holcomb, Mahlon James
Gary, Indiana and Rixie H. Mc Carroll. January Rehearing Filed [No. 3-1073A136. March denied January 1975. Transfer denied 1976.] *2 Bradley, Gary, appellant. Hilbert L. Ruckman, Corporation Counsel, Gregory
Charles A. S. Reis ing, City Attorney, Gary, appellees. Assistant On July31, 1973, court, finding no J. the trial
Hoffman, genuine granted any fact, summary judg as issue material defendants-appellees ment favor of in an wherein action plaintiff-appellant sought Albert Jenkins had reinstatement his former rank Depart chief battalion Fire ment, damages allegedly improper for his demotion to the injunctive of captain prohibiting rank relief the promotion captains acting or other firemen as battalion chiefs. Whether granting judgment summary the trial correct court was single confronting is the issue appeal. this court on record discloses that on January Jenkins alleged a complaint which filed his demotion from the compliance rank of was battalion chief not carried out statutory regarding procedure demotions. The alleged complaint promised also Jenkins was reinstate- upon subsequent opening ment promise and that such was breached. 8, 1973,
On March defendants filed denying an answer all allegations material contained in complaint. Jenkins’ On 12, 1973, March defendants filed Summary a “Motion for contending Judgment” that even if veracity each every allegation admitted complaint factual of Jenkins’ were legal no This motion for his established. basis claim would be parties and, pleadings was submitted on and briefs of July no on there the trial court found existed genuine summary granted as issue material fact and judgment Subsequently, defendants-appellees. in favor of motion to correct errors filed overruled and Jenkins was present appeal perfected. disagreement parties
The briefs of the indicate as to the nature 12, 1973, motion filed defendants March by the entered trial court and the standard of review applied. to be mo- Jenkins asserts that defendant’s tion, Judg- although Summary “Motion for denominated a ment”, actually a motion for failure state a to dismiss granted claim which relief Rules can be under Ind. *3 Procedure, 12(B)(6). Rule de- Trial He contends that cision of the trial court was incorrect unless it is from clear complaint granted. that under no set facts relief of could Defendants-appellees contend that theirs a motion for summary judgment by and that facts reason fact all alleged by genuine Jenkins there were admitted existed no of issue material fact. summary judgment
Defendants’ motion for ac- was not companied by supporting or affidavits documents other than pleadings. functionally made, it is When is so
the same as motion for pleadings a on the Procedure, 12(C). of under Rules Trial Rule Harvey, Proc., See: Ind. Prac.—Rules Civ. summary judgment,
In their motion for defendants admitted alleged by facts all Jenkins and themselves confined to a relief, discussion of whether such facts entitle Jenkins to thus indicating judg- that the motion was intended as motion for a pleadings. ment on turn
We next an complaint examination Jenkins’ order whether, to determine as a matter law, pre- he is cluded relief. violation to relief for asserts that he was entitled
Jenkins relating demotion of statutory removal and procedures allegations his Specifically, reveal that firemen. his factual not captain chief to from the rank of battalion hearing notice, opportunity for and attended written action taken. He con- statement reasons for the written procedures violated failure to follow the above tends 1971, 18-1-11-3, Ind. Ann. Stat. part, 1974), pertinent provides, in as follows: which including forces, police the fire “Every member of and signal operators and fire alarm police police radio mayor, the commissioners operators, appointed public sioners, metropolitan safety police commis- or the board of they by said are removed office until shall hold than may other They cause be removed board. politics, upon member such served after written person place of by copy left at his last usual or place notifying her of time him or residence given, hearing, opportunity for after an demanded, for such removal shall reasons if and the written (Em- such ***.” the records of board. be entered supplied.) phasis cannot, 1971, 18-1-11-3, supra, procedures outlined By its however, demotion. be deemed to Jenkins’ only question applies terms, the statute relevant agree appellant to “removal.” We do comprehends the term “removal” demotion. 18-1-11-3, supra, pro- further first note We vides : from right from such “Any any any to member of period in excess of appeal other force, decision.” *** as such but aforesaid, fire or shall not have ten *4 police or is [10] force suspended days,1 shall who right is therefrom dismissed have appeal provision prevent judicial would not review
While rights, e.g., appellant’s Lugar see Dortch denial v. of a 25; 545, City 266 N.E.2d Mann v. (1971), Ind. Terre 255 1971, by providing P.L. 252 amended the statute 1. Acts suspensions exceeding days. appeal ten Before amendment suspensions thirty days appealable. in excess of were
99 Haute, 577, al. et it never- Ind. 163 N.E.2d legislative theless applicability indicates a limit intent statutory hearing procedures. Furthermore, statute, adoption since the of this several specific plan” regarding “merit adopted Acts have been policemen 19-1-7-1, seq. firemen. et Ind. Ann. IC and/or 48-6204, 1974), seq. (Burns et Burns Supp. and § relating cities, applicable to first class firemen and to both policemen, provides specific procedures and demotion procedures establishes different to the de- high ranking provides motion expressly officers. The Act that it any power does “confer to remove dismiss person force”, such from service that it supplemental other Acts.2 19-1-21-1, seq., 48-6241, seq.
IC et Ind. Ann. et Stat. § (Burns Supp. 1974), applicable 1963 and Burns to certain expressly provide cities of the pro second class demotion cedures, exempt but the rank of chief. See also: IC seq. 48-6250, et 19-1-29-1, seq. (Burns Ind. Ann. et Stat. § 1974) ; Supp. 1971, 19-1-14-1, seq. 1963 and Burns et IC 48-6260, seq. (Burns Supp. Ann. Stat. et and Burns § 1974) ; 48-6286, 19-1-20-1, seq. et IC Ann. Stat. § seq. (Burns Supp. 1974) ; 1971, 19-1-14.5-1, seq. et et IC seq. (Burns 1974). 48-6287, Ind. Ann. Stat. et running through consistent thread these statutes they expressly provide general procedures expressly they procedures exclude those certain Yet, 18-1-11-3, supra, ranks offices. or if were demotions, apply necessarily apply would to all demotions hearings and would board of works render would superfluous procedure plan much of the merit statutes. 1971, 18-1-11-3, supra, note that
We also has been substantially present During force in its form since 1905. only span, expressly one case considered this statute in with a In Coleman connection demotion. 19-1-7-7, 1963). Ind. Ann. Stat. § *5 held Supreme 446, 101, Court 220 Ind. N.E.2d our adequately a cause action policeman stated rank of asserting the
in been demoted he had sergeant Although statute the court had without cause. its to base opinion, it before it chose and discussed procedure upon upon Act rules decision not but the Civil Service adopted by city pursuant had been Gary. Commission Act 1969, 488, Acts procedure different be ch. establishes a against disciplinary followed in firemen or other taken action employees qualify. civil This act service in cities which specifically appear con- refers to to be would trolling However, appellant-Jenkins’ in the demotion. case of 1969, 18, 488, August Acts supra, ch. was not in effect on 1970, question The Act in date Jenkins was demoted. by 15, 1969, vetoed and was Governor on March passed Legislature January 22, over such veto on Subsequently, 1972, approved Acts which was on P.L. January 21, 1972, specifically repealed Acts ch. supra, 4, may provisions as amended. Acts P.L. The be 19-1-37.5-23, found at IC 19-1-37.5-1 to Ind. Ann. 1974). short, In 48-6249a 48-6249x §§ regarding specific procedures Act no followed cases department personnel of demotion of civil service or fire August City Gary 18, 1970, effect the critical question. Legislature, by date in subsequently providing specific procedures demotion, demonstrated that IC supra, 18-1-11-3, was not embrace intended to demotions. Appellant’s regard asserted claim to breach of em- ployment dependent vitality upon contract its applicability 1971, 18-1-11-3, supra, of either or Acts 488, supra. ch. Such is vitiated determina- claim above indicating tion. assertion that the admitted facts a mere promise subsequent opening to reinstate does entitle Jenkins to relief as matter of and does not law merit further discussion. having shown,
No reversible error been *6 trial court is affirmed.
Affirmed.
Garrard, concurs; Staton, P.J., opinion. J., dissents with
Dissenting Opinion I respectfully P.J. dissent from the ex views Staton, pressed majority opinion in the on two distinct inde and grounds. pendent First, my 18-1-11-3; is view that IC Ann. 1974) Ind. be should hearing construed to notice and where all cases charges against “good the levied a fireman constitute cause” Second, for removal under I the statute. feel that the due process requires clause of the Fourteenth Amendment that a be fireman written notice of the accorded reasons his opportunity prior an heard on the merits pay. reduction in rank and his
I. Hearing Notice and opinion’s majority interpretation restrictive of IC prior 18-1-11-3 inconsistent with our decisions of courts, importance recognized which have the the statute’s of safeguards legisla effectuating underlying its City Wayne purpose. Bishop (1950), tive Fort 228 Ind. of v. 544; (1932), 92 State ex rel. N.E.2d Richards v. Felthoff 596; City 203 180 Coates v. Ind. N.E. Evansville of (1971), 862; Tryon App. 149 N.E.2d 273 v. 377; App. Terre Haute 136 193 N.E.2d of City Washington Boger (1961), App. v. 132 Ind. of Richards, supra, 484. In State ex rel. N.E.2d Felthoff Supreme of stated: Court Indiana recognized Assembly public “The General policy men has the sound retaining public policemen service fire- increasingly who have become valuable reason of has, experience by statute, public
their
assured these
during good
position
indefinite tenure
servants an
be-
satisfactory performance
of their duties.
In
havior
protect
position
order to
Assem-
this tenure
General
bly
provided
police-
proper
has
for a
charges.
man or fireman under
hearing required by
hearing,
con-
“The
ducted
law
fair
one
is a
good
the
solely
faith and
desire
dominated
Further,
charges.
person
of the
determine
the notice must
fitness
under
apprise
accused of
acts
dereliction
pur-
personal
or
pose
defects
constitute
‘cause.’ The
which
merely
the notice
inform
time and
place
proposed
par-
hearing,
but also
disclose
delinquency
particular
act
ticular
or
acts of
or
defect
constituting incompetency.
If
relator
dismissed
hear-
without ‘cause’ or
ing,
he
if
was dismissed without a fair
illegal;
.
then his
. .”
Ind. at 641-
dismissal
42,
The that when fireman is “neglect duty, neglect of or rules, the or violation of or incapacity, or orders, disobedience or without absence leave, injurious public or immoral or conduct conduct to peace unbecoming officer, or welfare or conduct an or other discipline, may . reprimand, breach of . .” he suffer “. . . forfeiture, suspension by reducing pay, without dismissal or grade pay.’’ him her to or a lower 18-1-11-3. primary purpose broadly of the statute is to delimit grounds legitimate personnel which adverse action safeguards may taken. The provided be basic the statute control function to the discretion of the Board. Statutory provisions charges for written notice of and a penal may insure that no imposed sanction hand, not enumerated in the reason statute. On the other imposes the statute no limit on the choice of available sanc- tions. Safety When Board of decides Public Works and reprimand offending fireman, remove merely or to an punishment wholly choice of a matter of administrative any specifically discretion. provides Since statute proscribed employ- may conduct culminate in removal from ment, charged fireman act enumerated with an or omission right the statute must be accorded the written notice against charges hearing. him and a majority’s interpretation of the statute cedes impose any sanction, Board unbridled penal discretion to except employment, removal stating any without reason implies for its decision. Such construction the Board parte offending must make ex decision an to remove an em ployee employee before the is entitled to written notice charges removal, which constitute basis for his or the right charges. Yet, to be on the it is heard clear that authority impose any Board lacks sanction unless first statutorily grounds determines that one of the enumerated exist. App. Coates Evansville 149 Ind. legislative principal 273 N.E.2d 867. One statutory objectives underlying scheme was insure that no action could be taken adverse absence a fair principled merits, thereby determination on the ex cluding any legislative political policy considerations.1 This *8 designed safeguards procedural to delimit the Board’s wholly inoperative discretion are rendered unless the statute interpreted hearing to a all cases charges against “good where the raised fireman constitute for removal. cause” judicial
The statute’s limitation on review of Board de- impliedly availability does not limit the terminations of its safeguards. expressly The statute authorizes an 18-1-11-3; (Burns Supp. 1974), Ann. Stat. §48-6105 1. IC provides: may They [policemen be removed . . firemen] “. cause politics, .”.. other than days ten appeal suspensions more than from Board language duration, though statutory upon which even suspended majority that a appear indicate relies would to hearing. right The statute’s fireman has no to notice and a suspension express provision appeal Board for an from a rights hearing in no clearly that fireman’s are indicates way statutory judicial limitation on circumscribed legisla- Moreover, many adopted by our review. other statutes operate preclude judicial ture beyond to review either agency trial court or administrative It is clear level.2 cognate statutory right these appellate on the to restrictions impliedly initial, or de preclude novo review do some principled judicial determination the relevant or admin- contrary, manifestly istrative tribunal. On the it is unsound to legislature “finality” maintain that intended to accord to administrative decisions arrived rudi- at without the most mentary process safeguards. majority’s due position suggests provision intentionally the drafters sought negate underlying controlling its purpose Board preventing political discretion and determinations based on considerations. majority adoption procedures contends that
pertaining plan” firemen under “merit legislative right deny acts manifests a intent to notice those and a firemen demoted under the more general provisions of the statute under consideration. It plan” legislation should noted that the “merit to which See, e.g., 1971, 18-7-8-15; (Burns IC Ind. Ann. Stat. 48-8515 § (limitation Supp.) grounds appeal from action of the Rede- velopment Commission); 1971, 19-4-13-8; IC Ind. Ann. Stat. 48-4609 § (Burns (no Supp.) appeal judicial de novo review aof disputed assessment); 1971, 25-9-1-14; Board of Public Works (Bums (no Ed.) appeal Ann. judicial Code from initial decisions). review of State Athletic Commission Other statutes ex- pressly provide that the decision of the administrative official or tribunal rights appellate precluded. “final” and See, all review are e.g., 1971, 6-1-46-8; (Burns Ed.) Ind. Ann. Stat. §64-1911 Code (precludes any judicial review of certain decisions of the State Board Commissioners); 1971, 6-1-1-25; of Tax Ind. Ann. Stat. §64-1915 Ed.) (precludes appeal Code from decision of the State Board upon validity of Tax municipal Commissioners issue). bond
105 majority opinion quite scope. refers These limited system specifically civil applicable service acts are made to municipalities provisions presumably individual their are special particular tailored to fire municipal meet needs of departments.3 hand, police general On other provisions 1971, apply personnel ad IC 18-1-11-3 to police policies municipal depart ministration of all fire and ments, expressly specialized unless altered civil service light legislative general scheme, In enactments. of this majority’s that “. . assertion . were to IC 18-1-11-3 [i]f apply demotions, necessarily apply would to all demotions hearings super . and would . render . that would plan” procedures appears fluous” “merit demotion in plan” correct. sup The “merit acts do not constitute mere legislation. plementary Todd See ex Hatcher State rel. App. 144, 158 Ind. 301 769. These N.E.2d radically existing personnel enactments altered administration practices, municipalities, as many affected areas having Moreover, connection “specific no with demotions. adopted by plan procedures” demotion the merit acts reflect legislative departure general provisions substantial example, For IC 18-1-11-3. 19-1-7-6; IC (Burns Supp.), Ann. Stat. provides which § procedure applicable cities, to firemen in first class municipal empowers the fire chief demote members of safety. prior public department action board of among It also noted that there is uniformity should little regard plan” the “merit acts details significant imposition personnel There are to the sanctions. Eg, 19-1-21-1—19-1-21-9; Stat., IC 48-6241—48- § Ann. ; 1963) (civil system Department) (Burns Police service 19-1-37.5-1—19-1-37.5-23; Ind. Ann. IC Stat. 48-6249a—48-6249x § Supp. 1974) (civil system municipal (Burns departments service fire County); 1971, 19-1-29-1—19-1-29-8; Ind. Ann. in Lake Stat. §48- (Burns Supp. 1974) system (civil service for Evansville 6250—48-6257 19-1-14-1—19-1-14-26; Michigan police departments); (Burns 1974) Supp. (civil 48-6260—48-6285 service Ind. Ann. ; police departments) for Muncie and Terre fire and svstem Haute 19-1-20-1—19-1-20-8; 48-6286a—48-6286g Ind. Ann. Stat. § system police department). 1974) (civil Wayne service for Fort *10 as, among the matters differences these enactments such on entity, decision-making the identity composition the of the notice, scope of nature of form and content E.g., appellate availability review. initial of and the (h) compare 1971, 19-1-37.5-7; Ind. Ann. 48-6249 IC Stat. § 1971, 19-1-14-13; Ind. Ann. Stat. (Burns Supp.) with 1974 compare 1971, & ; (Burns Supp.) 19-1-21-3 48-6272 1974 § 1963) (Burns 19-1-21-5; 48-6243 & 48-6245 Ind. Ann. Stat. § 1971, 19-1-7-6; 1974 Ind. Ann. Stat. with IC procedures in divergent demotion Supp.). presence support hardly quite specialized plan can merit statutes these legislature majority’s has sweeping that assertion firemen, who are deprive manifested an intent demoted legislation, of plan merit from the benefits of the excluded basic fairness.
II. Due Process my is an the trial There additional reason for belief granting City Gary’s motion for court erred alleges complaint facts pleadings. I feel that Jenkins’ process to state a claim under due clause sufficient alleges: complaint Fourteenth Amendment. Jen- position from his chief to kins demoted of battalion fire was captain Safety; rank Board of Public arbitrary capricious in that evidence no presented provide were nor reasons stated to a basis demotion; viola- and that the demotion was therefore for the 1971, the Fourteenth Amendment. 18-1-11-3 and tive of IC complaint, favorable Thus, fashion most construed alleges “property” deprivation interest Jenkins, of an minimum, At process clause. protected by the due right em- limited to continued operates to confer a 18-1-11-3 some pay, in the absence of rank and ployment the same at expressly the statute. “good enumerated for demotion cause” arbitrary from clearly an protects Jenkins The statute right statutorily demotion; created groundless Jenkins’
107 arbitrary free adversely affecting public state action his employment protected by is an interest the Fourteenth Amend Regents (1972), ment. Board v. Roth 92 408 U.S. 548; Perry (1972), S. Ct. 33 L.Ed.2d v. Sindermann 408 S. U.S. 92 Ct. 33 L.Ed.2d This conclusion supported by holding pro the decisions of this Court that the incorporated visions impliedly of IC 18-1-11-3 are in the municipal Lipinski employment. See, e.g., fireman’s contract of (1972), App. v. Town Chesterton 278 N.E.2d 302; Ely City Montpelier App. 175, N.E.2d 286. *11 deprived
Jenkins has been protected his interest in a manner violative of process guaranty due person the Fourteenth Amendment. Before a deprived can be encompassed by process shield, an interest the due he must opportunity afforded and an notice for some form of hearing prior deprivation. to the effective date Bell v. (1971), 90; Burson 402 U.S. 91 S. Ct. 29 L.Ed.2d Boddie v. Connecticut 401 U.S. 91 S. Ct. 113; Goldberg Kelley (1970), L.Ed.2d U.S. complaint clearly S. 25 L.Ed.2d Ct. 287. Jenkins’ alleges prior that he was demoted without hear- ing in Amendment; alleged violation of the Fourteenth properly constitutional violation was within the framework appellant’s motion correct errors and was adequately majority’s briefed. I cannot understand the refusal to discuss this crucial issue. foregoing reasons,
For the I feel that the trial court should be reversed and case remanded to the Safety Board of Public for a on the merits appellant’s Jenkins demotion. should also be awarded compensation lost as a result proceed of the Board’s failure to in accordance 18-1-11-3 and the Fourteenth Amendment.