*1 client his of manipulation selfish dent's suspen- of period significant
warrants
sion. respon- we order
Accordingly, lawof practice from suspended dent months, than fewer not period auto- February beginning reinstatement.
matic is directed this Court of
The Clerk in accordance order this notice
provide 28(8)(d) provide Admis.Dise.R.
with Court States United Clerk Circuit, the Clerk Seventh Appeals District States United each each state, the Clerk in this
Courts Courts Bankruptey States the United address known last
this state in the records reflected respondent the Clerk. assessed proceeding this
Costs respondent.
against TURNER, Appellant
Bradley A. Below),
(Plaintiff al., EVANSVILLE, et OF
CITY (Defendants Appellees
Below).
No. 82S05-0008-CV-479. Indiana.
Supreme 18, 2001.
Jan.
Merit Commission regarding this suspen- sion.
When Marvin D. Guest replaced Gann as Chief of Police in late August 1998, Chief Guest amended Turner's suspension Jeffrey W. Waggoner, Indianapolis, to be served without pay. Turner appeal- Indiana, Attorney Appellant. for ed this amended suspension to the Merit 1998, Commission. In Marine, Michael late D. Guest Bradley Williams, suspend- L. ed times, Turner two Indiana, more Indianapolis, first for Attorneys failing for Appel- to follow standard operating procedures lees.
and "repeated violations," and later for being absent from roll call and his as- ON PETITION FOR TRANSFER signed posts at the prescribed time and for SHEPARD, Chief Justice. (R. "repeated violations." 127-28, 130- 31.) Turner filed a notice appeal for The Chief of the Evansville Police De- each of these suspensions. partment imposed discipline officer, on an who appealed to the City's Police Merit All three of Turner's appeals remain Commission. The officer then sued the pending before the Merit Commission. Commission, Chief, others, seeking they heard, Before could be Turner filed a prevent a hearing on the merits of his lawsuit challenging past present appeal and challenging the Chief's right to right office, Chiefs' the ordinance estab- ' office, hold the lawfulness of the Commis- lishing the Merit Commission and an sion's existence and the validity of an agreement between the City and the Fra- agreement between City and the Fra- ternal Order of Police.: He asked the ternal Order of Police. We hold that these enjoin court to the Commission from con- may matters be the subject of review ducting a disciplinary hearing while his sought any after final decision of the Com- lawsuit proceeded. The court issued such mission but may not be pursued collateral- order, an and it still pends. ly through this lawsuit. The trial summary judg Facts and History Procedural ment for the defendants. The Court of Appeals affirmed.
Appellant
Among other
Bradley
things,
A.
it
Turner began his
held the Evansville
service with
Police Merit
Commis
Evansville
Depart-
Police
sion was properly
ment in January
constituted under the
hired from a list
relevant statutes and that
created
by the
Chief of
Evansville Police Merit
obliged
Police was
by Article
Commission. The
section 6 of
current dispute began
the Indiana Constitution
when
to live
Chief of
inside the
Police Arthur A. Gann is-
city limits.
Turner v. City
sued Turner
reprimands
written
on two
Chief
suspended
Gann
Turner in early
a claimant with an available administrative
August 1998 for twenty-one days, with remedy
pursue
must
that remedy before
pay, for giving false
information
a state-
being allowed access to the
courts.
ment to Internal Affairs and in testimony
Chicago
Co.,
East
Refining
Sinclair
to the Merit Commission regarding
a disci-
Ind.
jurisdiction. constituted, unlawfully to be review dicial (Ind.20 Parker, 726 N.E.2d mony v. pre To suspension officer's 00).1 reversed). review, Tur issues serve the value re-emphasized recently We admin at the them present first *3 ner be proceedings administrative completing v. hearing. See Sullivan istrative in State judicial review to resorting fore (Ind.Ct.App. N.E.2d 182 728 730 Montgomery, v. Tax Com'rs Bd. Of authori 2000) challenge to waived (plaintiff v. (Ind.2000)(quoting State 680, 684 N.E.2d a to make by failing chief ty (Ind.1996)), 1353, 1358 672 N.E.2d Sproles, hearing). the objection at timely to party a requiring The reasons his pursue to required was Turner well remedies administrative seek not avoid may remedies may administrative litigation Premature established. action.2 this collateral through doing so judi- avoided, record adequate an be sub lacked the trial court agen- Consequently, compiled, and may be review cial the to address jurisdiction ject matter and autono- opportunity the cies retain complaint. Turner's amended if merits of Even own errors. their my to correct unconsti- is the complaint ground of the Conclusion statute, may be which
tutionality
the
resolve,
to
agency's power
beyond the
motions, the
City's
the
heard
Having
because
may
required
still be
exhaustion
summary judgment
trial court
the
resolve
may
action
'administrative
the latter
It was
dismissal.
alsoordered
confront-
without
grounds
case on other
affirm
We
appropriate.
was
action
issues.'
legal
ing broader
to dis-
the court
and direct
dismissal
the
Merit
injunction preventing
solve
omitted.)
(Citation
appeal.
Turner's
hearing
from
Commission
filed a notice
appropriately
Turner
suspensions
of his
appeal of each
BOEHM,
SULLIVAN,
DICKSON,
Commission,
go
would
which
the Merit
JJ.,
RUCKER,
concur.
ob
restraining order
but for
forward
appeal
right
This
by Turner.
tained
in
BOEHM, J.,
opinion,
concurs with
in
is common
by a Chief
discipline
RUCKER, JJ., join.
from
DICKSON
which
Seq,
statutory schemes.
various
Indiana's
Justice, concurring.
BOEHM,
36-8-8.5-19(b)
(West
Ann.
e.g., Ind.Code
Be-
the Court.
opinion
in
join
I
1997).
by the commission
A decision
disposes
adequately
opinion
cause that
review.
Ind.Code
judicial
to
also
case,
content
1997).
normally be
(West
would
this
I
Turner's
§Ann. 36-8-8.5-18
presented
of the issue
resolution
leave
authority, and
challenges to
Chief's
day.
for another
of this case
the merits
rele
compliance with
own
Commission's
addressed
However,
Appeals
the Court
before the
may
challenged
statutes
vant
that the
holding
in
important question
an
subsequently raised
body and
po-
that the
requires
Indiana Constitution
review.
process
through
within the Evansville
Antrobus,
reside
lice chief
448
See,
e.g., City Marion
has no stand-
that Turner
I
limits.
(board
(Ind.Ct.App.1983)
N.E.2d
lawsuit.
in this
issue
to raise
ing
offi-
challenged was
composition
whose
(Ind.Ct.App.2000).
Noneof
N.E.2d
may gain judicial review
party
A1.
apply
here.
these seem
circum-
prerequisite in limited
satisfying this
stances,
administra-
pursuit
where
such as
challenge
is made
to an office
proper
futile,
2. A
strict
or where
would be
tive remedies
harm,
Hovanec v.
action.
filing
quo
or
warranto
irreparable
compliance
cause
would
Diaz,
alleged to be
statute is
397 N.E.2d
applicable
where 272 Ind.
Gillis, 722
Bellamy v.
void on its face.
Nevertheless,
Brigade, Regiment, Battalion or compa-
worse,
for better
Appeals
Court of
has
ny
resolved the issue in
to which they may severally belong.
published
opinion that I assume affects a The proceedings of the 1850 constitutional
public safety
number of
per-
officials and
convention shed little light on the purpose
haps
serving
others
local governmental
of the original provision or the modified
units across Indiana. Rather than leave version
we now find in Article
servants in doubt as to the
6. The 1850 debate was
solely
concerned
need to resign
positions
or relocate with the exception for the trustees of the
families,
I would address the ques-
town of Clarksville: That exception did
tion of who is an "officer" within the mean-
not survive the constitutional convention.3
ing of Article
Section 6 of the Indiana The constitutions of 1816 and 1851 were
Constitution.
It my
view that
written in
the Ev-
an era of vastly simpler govern
*4
ment,
ansville Chief of
Police is not
when transportation
to the
and communi
cationswere
extremely
difficult.4 In
residency
VI,
requirement
in
Article
See-
population
Indiana's
64,000
was fewer than
tion 6.
women, men, and children living in small
The origin of the residency provision can
36,000
communities dotting a
square mile
XI,
be traced to Article
Section 6 of the
expanse.
Indiana Constitution of 1816:
It seems to me that the "officers" con-
All
state;
officers shall reside within the
templated by this
provision
constitutional
District,
and all
County, or Town offi- are those
in
identified
the Indiana Consti-
cers, within
respective Districts,
tution itself as "officers" and
county,
those
(the
Counties, or towns
trustees of the
township, and town officials who have been
town of Clarkesville
by
excepted)
identified
[sic]
and
who,
statute as those
in the
keep
offices,
shall
their respective
at
VI,
terms of Article
Section
are elected
therein,
places
such
as may be directed
appointed
"by law"
perform
to
similar
law;
by
and all Militia officers shall
functions.
I assume no one
argue
would
that every statutorily provided public em-
reside within
Division,
the bounds of the
3.
unique origin.
Clarksville has a
It was cre-
Convention
the Revision
the Constitution
for
of
by
Virginia
ated
the
(Indiana
state of
in 1783
the State
out of
Indiana 930-31
His-
of
of
lands
regiment."
to the "Illinois
1935).
The
Reprint,
torical
Collections
Virginia legislature set aside one thousand
acres for
the creation of the town of Clarks-
Huff,
4. William
delegate
a
to the constitution-
men,
appointed
ville and
ten
including
al convention of
reminded the conven-
Clark,
George Rogers
as the board
of
commis-
tion of the
difficulties of
travel. He first
pointed
sioners of
out the scarcity
good
the town.
It
of
duty
was their
to
roads and
bridges,
survey
and
and
continued:
resulting parcels.
distribute
the
gave
The 1783 act also
the board of commis-
The
[Spencer
two counties
Perry]
and
front
ability
sioners the unusual
to choose its own
river,
about one hundred miles on the Ohio
propriety
successors.
The
of the entire ar-
and there are some five or six considerable
rangement
challenged
was
dispute
in a
that
emptying
sized streams
into the Ohio ...
reached
Supreme
the United States
in
very
which makes it
inconvenient
for
Clarksville,
Hughes
1832.
v. Trustees
get
citizens ...
to
county
to and from their
(6
Pel.)
U.S.
X1, Section 6. In event, go 1850, constitu- to down but it will not do so well any delegates tional any had sympathy lost stream, for the traveling up consequently and boat; they depend have entirely to on a trustees and of one town-no maiter how unique origins-who its time, chose to live in another. 1 if they go no boat comes in cannot at Report Proceedings Debate and all. Debates at 932. coun office of constitutionally created purposes. these "officer" is an ployee spe list tied to the In addition bright ty line sheriff. correct, rather some If that 6, variety Article Section cifically to permit to here required residency re go about other employers impose of statutes servants there § 88-14-1-1.5 confidence with Ind.Code quirements. their business eligi- skirmishing over must attorney constant (prosecuting not be (Supp.2000) will county jobs. municipal bility to hold circuit); § 36- id. in same reside (1998) counsel (corporation deci 4-9-11 appellate 1863, number Since 6,000 must than greater population which to determine struggled have sions (citi § 36-7-4-216 county); id. live within within "officers" are officials local must commission plan Everyone zen members of Article meaning of the term, area jurisdictional a mini of the residents seems identified mum, the "officers" commission); (Supp.2000) embraces 36-7-14-7 id. are itself. These must be constitution commissioner (redevelopment in the such recorder, auditor, trea clerk, serves); § 36- county he id. unit that resident coroner, surveyor. surer, sheriff, (1998) (member of merit commis 8-3.5-6 components addition, legislative the senior local unit have been resident sion to live required government of local id. appointment); years before for three *5 foregoing of the All jurisdictions. (members po (Supp.2000) § 36-8-4-2 decisions Some posts. are elected live within departments and fire lice con servants to be public other have held town, township is city, county where ex v. Relender State stitutional officers. county). located, contiguous inor 30, 288, 283, 32 49 N.E. Utz, Ind. 149 rel. certainly not is Although this (1898) ("Members of commis of a board interpretation ..."); legislature's bound county officers. certainly sioners in Article Cornelison, used Ind. as 27 the term "officer" rel. v. ex Yonkey State the General 6, to me that it seems (1866) Section is "of (county recorder 236, 240-41 The are correct. Allen, 21 Assembly's conclusions v. ficer"); Cornwall ex rel. State and bodies of (1863) individuals is "of top executive 516, (county auditor Ind. 521 Antrobus, 448 ficer"); Marion v. are includ- counties, towns, townships (mem 325, (Ind.Ct.App.1983) 330 N.E.2d constitutional- ed, analogs to the as are the Works and sheriff, Board of Public city bers of the The elected offices. ly created Newlon, "officers"); Willsey v. Safety are one, law is the sole no reports to who 390, 332, 334, 392 N.E.2d 316 Ind.App. list. In con- on the official enforcement (1974) an "of justice peace normally is (township trast, police city chief ficer"). safety mayor, a board to a accountable Here, commission, or both. Assembly imposed or merit the General de- police over the chief's control police county, twenty on residency requirements absolute; tempered it is not partment that were positions and town township, and the Evans- oversight mayor's subject to Article identified specifically author- exclusive ville Merit Commission's include This list did not 6.5 disciplinary firing, and hiring, ity over beyond personnel any law enforcement (Ind. 36-3-3-4); judge (id. city-county council of § positions are: 5. Those GOV (id. 36-3-4-2); § (id. mayor 36- § (1998)); UNIGOYV of the member § Code 33-10.1-3-2 36-2-2-5); body (id. § 4-5-2); council/city legislative member county common "executive" 36-2-3-5); (id. § body" county of the "fiscal 36-4-10-3); (id. (id. 36-4-6-2); § city clerk § 36-2-9-2); (id. county § trea- county auditor 36-5-2-6); (id. § town body legislative town (id. 36-2-10-2); (id. county § recorder surer 36-5-6-3); (id. township § clerk-treasurer (id. 36-2-11-2); § county surveyor 36-2- § 36-6-4-2); (id. township § assessor trustee 36-2-13-2) (id. 12-2); § county sheriff township (id. (Supp.2000)); and § 36-6-5-1 36-2-14-2); (id. county § as- county coroner (1998)}. (id. body § 36-6-6-3 legislative 36-2-15-2); (id. of UNI- § executive sessor Ind., matters. Code 3.30.37.509(B) & 30.37.505to .528. LODEN, Appellant Donald O. -Petitioner, servants, I that various in- cluding police, chiefs of may be "officers" v. within the meaning of some statutes. Mary LODEN, J. Appellee-Respondent. However, this is purely a matter legisla- No. 79A05-9911-CV-525. Thus, tive construction. I have no trouble agreeing legislature intended to Court of Appeals of Indiana. include the chief of in an anti-cor- ruption prohibition applicable to local "offi- Oct. 2000. cers." State Carey, 241 Ind. Publication Ordered Nov. N.E.2d 354 But Carey seems to shed light little on the use of the same
term in the year old residency require- constitution,
ment of the state which pre-
sumably had in mind goals of political
accountability and familiarity with local is- Moreover,
sues. the word "officer" is used
in various statutes to describe a number of
public servants whom no one would identi-
fy as constitutional officers. For example,
although the code refers to "law enforce- officers,"
ment I do not any- believe that
one would suggest every policeman or
deputy throughout the state of Indiana is *6 to Article Secondly,
the test sometimes cited for identifying an
"officer"-one who exercises "sovereign
authority"-clearly applies to law enforce-
ment regulatory officials. sum, practical geog- considerations of
raphy and limited communication undoubt-
edly influenced the constitutional residency
requirement at origin. its These are no
longer as significant, but the assumed
goals of political accountability and famil-
iarity with local issues remain. In my
view, goal neither is sufficiently served
extension of Article Section 6 to an
appointed city chief of who is him-
self layer accountable to a of constitutional
officers. RUCKER, JJ.,
DICKSON and concur.