FOR PUBLICATION Jul 11 2013, 8:19 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
TODD ESS R. ERIC SANDERS
Indianapolis, Indiana Assistant Corporation Counsel
Office of Corporation Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT M. GATES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1210-OV-503
)
CITY OF INDIANAPOLIS, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Certo, Judge
Cause No. 49F12-1204-OV-14334
July 11, 2013
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Robert Gates appeals the trial court’s order denying his demand for a jury trial in
this action in which the City of Indianapolis (“the City”) alleged that Gates violated three
municipal ordinances. Gates presents a single issue for our review, namely, whether the
trial court erred when it denied his demand for a jury trial.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On February 22, 2012, Indianapolis Animal Care and Control Officer Tiffany
Compton issued three citations to Gates for violations of three ordinances of the Revised
Code of the Consolidated City of Indianapolis and Marion County (“Revised Code”). On
April 10, the City filed a civil complaint against Gates alleging that he had violated the
following ordinances: Section 531-401 (General Requirements for Animal Care and
Treatment); Section 531-202 (Permanent Identification of Dogs and Cats Required); and
Section 531-203 (Curbing). In particular, Officer Compton observed that Gates had
permitted his dog to defecate on a public street without cleaning up after it, and he had hit
his dog multiple times. In addition, Gates’ dog had neither permanent identification nor
proof of rabies vaccination. On June 22, Gates filed his demand for a jury trial,1 which
the trial court denied. This appeal ensued.2
DISCUSSION AND DECISION
Gates contends that he is entitled to a jury trial under Article I, Section 20 of the
Indiana Constitution, which provides that, “[i]n all civil cases, the right of trial by jury
1
The trial court found that Gates’ demand for jury trial was timely filed.
2
Gates filed this interlocutory appeal pursuant to Indiana Appellate Rule 14(B).
2
shall remain inviolate.” As we observed in Cunningham v. State, 835 N.E.2d 1075, 1076
(Ind. Ct. App. 2005), trans. denied, an issue presented on appeal is a pure question of law
when the question does not require reference to extrinsic evidence, inferences drawn
from that evidence, or the consideration of credibility questions. We review purely legal
issues de novo. Id. This is such a question, and we review Gates’ claim de novo. In
doing so, we give no deference to a trial court’s legal conclusions. Id.
It is well settled that Article I, Section 20 of the Indiana Constitution serves to
preserve the right to a jury trial only as it existed at common law. Songer v. Civitas
Bank, 771 N.E.2d 61, 63 (Ind. 2002). And Indiana Trial Rule 38(A) provides:
Causes triable by court and by jury.
Issues of law and issues of fact in causes that prior to the eighteenth day of
June, 1852, were of exclusive equitable jurisdiction shall be tried by the
court; issues of fact in all other causes shall be triable as the same are now
triable. In case of the joinder of causes of action or defenses which, prior to
said date, were designated as actions at law and triable by jury—the former
shall be triable by the court, and the latter by a jury, unless waived; the trial
of both may be at the same time or at different times, as the court may
direct.
In a concurring opinion in Midwest Security Life Insurance Co. v. Stroup, 730 N.E.2d
163, 169-70 (Ind. 2000), Justice Boehm explained the right to a jury trial as follows:
Both Article I, Section 20 and Indiana Trial Rule 38(A) provide for the
right of a trial by jury in certain instances. The right to a jury trial is a
“fundamental right in our democratic judicial system” that must be
“scrupulously guarded” against encroachment. Levinson v. Citizens Nat’l
Bank, 644 N.E.2d 1264, 1267 (Ind. Ct. App. 1994). In my view, the crucial
inquiry, however, is not, as the Court of Appeals put it, whether a cause of
action existed at common law. Rather, it is whether the cause of action is
essentially legal or equitable, as those terms were used in 1852. See
Midwest Fertilizer Co. v. Ag-Chem Equip. Co., 510 N.E.2d 232, 233 (Ind.
Ct. App. 1987) (“[T]he key determination to be made is whether the claim
involved is legal or equitable in character.”). If an action is essentially legal
3
in nature, a jury demand must be honored, but those causes of action that
are equitable may be tried to the court. This formulation can be found in
several Indiana decisions, both recent and ancient. See, e.g., Fager v.
Hundt, 610 N.E.2d 246, 253 n.9 (Ind. 1993); Dean v. State ex rel. Bd. of
Med. Registration & Examination, 233 Ind. 25, 31-32, 116 N.E.2d 503, 507
(1954); Fish v. Prudential Ins. Co., 225 Ind. 448, 452-53, 75 N.E.2d 57, 59
(1947); Martin v. Martin, 118 Ind. 227, 237, 20 N.E. 763, 767-68 (1889).
If the cause of action existed on June 18, 1852, then this issue is
decided by history. Legal actions at that time included replevin, ejectment,
fraudulent conveyances, and actions for money damages, see City of Terre
Haute v. Deckard, 243 Ind. 289, 293, 183 N.E.2d 815, 817 (1962); Howell
v. State Farm Fire & Cas. Co.,530 N.E.2d 318, 319-20 (Ind. Ct. App.
1988), while equitable actions included injunctions, reformations,
derivative actions, accounting, discovery, and land transactions, see Dean,
233 Ind. at 31-32, 116 N.E.2d at 507; Sikich v. Springmann, 221 Ind. 483,
487-88, 48 N.E.2d 808, 809-10 (1943); Lewandowski v. Beverly, 420
N.E.2d 1278, 1282 (Ind. Ct. App. 1981).
If, however, the cause of action is one that was not in existence in
1852, it is necessary to determine whether it is closer to a claim at law or
one in equity. “To determine whether or not a party is entitled to a trial by
jury, we look beyond the label given a particular action and evaluate the
nature of the underlying substantive claim.” Hacienda Mexican Restaurant
v. Hacienda Franchise Group, Inc., 641 N.E.2d 1036, 1041 (Ind. Ct. App.
1994). This involves evaluating “the complaint, the rights and interest[s]
involved, and the relief demanded.” Levinson, 644 N.E.2d at 1267.
In this appeal, Gates contends that our opinion in Cunningham is dispositive and
requires reversal of the trial court’s order denying a jury trial. In Cunningham, we held
that the defendant was entitled to a jury trial after he was issued a traffic ticket for
speeding, a Class C infraction. We agreed with the defendant that he was entitled to a
jury trial under Article I, Section 20 of the Indiana Constitution, and our reasoning was as
follows:
Clearly, the simplest way to determine whether a respondent has the right
to a jury trial in a proceeding for a speeding infraction would be to look at
the 1852 statutes governing speed zones. That approach is of little help
here, however, because the earliest versions of today’s speed zone statutes
4
were not codified until 1939. We must therefore proceed to the alternative
path of analysis that Justice Boehm discusses [in his concurring opinion in
Midwest Sec. Life Ins. Co.]: whether the cause of action at issue is
equitable or legal in nature. We must determine whether an action for a
traffic infraction would have been considered equitable had it existed in
1852. We hold that it would not have been an equitable action.
In making this determination, we note that, until 1981, an infraction
was considered a criminal action and was not governed by what were then
titled the Indiana Rules of Civil Procedure. Wirgau, 443 N.E.2d at 329,
n.1. . . . It is clear that from the time of their inception until 1981, when the
Indiana Rules of Civil Procedure and, now, the Indiana Rules of Trial
Procedure began to govern the enforcement of infraction violations, such
offenses were criminal actions and, as such, were not equitable in nature.
***
Though they are now governed by the Indiana Rules of Trial
Procedure, speeding infractions remain quasi-criminal in nature—they are
enforced by the police; complaints are initiated and litigated by a
prosecuting attorney on behalf of the State; and violators are fined by the
government. Because of this, it logically follows that, just as criminal
actions were outside the scope of equitable actions as provided by our case
history, so, too, would quasi-criminal actions have been historically non[-
]equitable. Instead, in 1852, actions criminal in nature would necessarily
have been legal. In such actions, a jury trial demand must be honored.
Midwest Sec. Life Ins. Co., 730 N.E.2d at 169. We therefore hold that the
trial court improperly denied Cunningham’s request for a jury in violation
of Article I, Section 20 of the Indiana Constitution.
835 N.E.2d at 1077-79 (emphases added, footnotes omitted).
Here, the trial court found, and the parties agree, that the ordinances at issue did
not exist prior to 1852. Accordingly, we must determine whether this cause of action
would have been considered a claim of equity or law in 1852. See id. at 1077. With
respect to the nature of the underlying substantive claim, namely, the ordinance
violations, our supreme court has held that “the violation of city ordinances” are “of a
5
quasi criminal nature.” See Lickey v. City of South Bend, 206 Ind. 636, 640, 190 N.E.
858, 860 (1934).3
We also find Cunningham instructive on this question. While the nature of the
ordinances at issue in this case has not previously been considered by this court, the
violations at issue are quasi-criminal because they are enforced by the Indianapolis
Department of Public Safety,4 complaints are initiated and litigated by a prosecuting
attorney on behalf of the City, and violators are fined by the government. See
Cunningham, 835 N.E.2d at 1079. And we agree with Gates that the mandatory fines
imposed in this case are akin to claims for money damages, which were “exclusively
legal actions in 1852[.]” See id. at 1078.
The City is correct that it is well established that “prosecution for the violation of a
city ordinance in which a monetary penalty only is sought is a civil and not a criminal
action.” See Boss v. State, 944 N.E.2d 16, 21 (Ind. Ct. App. 2011). But in Boss, we
addressed only the question of double jeopardy where the defendant’s criminal charges
“stemmed from the same incident involving Boss’s dogs from which the ordinance
violations arose.” Id. That question is entirely distinct from the question of whether the
violation of the same ordinances would have been addressed in a court of equity or a
court of law in 1852. As such, Boss is not instructive here.
3
In Lickey, the defendant allegedly violated an ordinance that “provided for the licensing of
peddlers and hawkers[.]” 206 Ind. 636, 190 N.E. 858, 860.
4
The Indianapolis Department of Public Safety (“DPS”) is described as a “police agency” on the
complaints filed against Gates, and DPS oversees both the Indianapolis Metropolitan Police Department
and the Animal Care and Control Division. See Indianapolis-Marion County, Ind., City-County
General Ordinance No. 251-101.
6
While the ordinances at issue here can be used to abate and prevent nuisances, the
City has not sought injunctive relief but will impose mandatory fines as provided for in
Section 531-401 and Section 531-203. The trial court points out that the City “likely will
follow its practice and request an injunction against future violations of Chapter 531 if it
prevails against Mr. Gates.” Appellant’s App. at 12. But there is no injunctive relief
requested in the case as it now stands, and it would be improper for us to speculate as to
what the City might do in the future.
The City’s request for monetary relief under the ordinances is unlike, for example,
a foreclosure action, in which a court in equity would be permitted to hear a legal claim
for breach of contract in conjunction with the injunctive relief sought. See Songer, 771
N.E.2d at 66 (holding where the essential features of a suit sound in equity, the entire
controversy is drawn into equity, including incidental questions of a legal nature). Here,
again, only monetary damages are sought and there is no basis for drawing that legal
claim into equity. The nature of the underlying substantive claims brought against Gates
is quasi-criminal, and he is entitled to a jury trial under Article I, Section 20 of the
Indiana Constitution. We reverse and instruct the trial court to grant Gates’ jury trial
request.
Reversed and remanded with instructions.
BAILEY, J., and BARNES, J., concur.
7
Robert M. Gates v. City of Indianapolis
Combined Opinion