Turner v. City of Evansville

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES

Jeffrey W. Waggoner Michael D. Marine
Indianapolis, Indiana Indianapolis, Indiana

Bradley L. Williams
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

BRADLEY A. TURNER, )
)
Appellant (Plaintiff Below), )
) 82S05-0008-CV-479
) in the Supreme Court
v. )
) 82A05-9908-CV-
358
CITY OF EVANSVILLE, et al., ) in the Court of Appeals
)
Appellees (Defendants Below). )

APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt
Cause No. 82C01-9812-CP-397

January 18, 2001

SHEPARD, Chief Justice.

The Chief of the Evansville Police Department imposed discipline on an
officer, who appealed to the City’s Police Merit Commission. The officer
then sued the Commission, the Chief, and others, seeking to prevent a
hearing on the merits of his appeal and challenging the Chief’s right to
hold office, the lawfulness of the Commission’s existence and the validity
of an agreement between the City and the Fraternal Order of Police. We
hold that these matters may be the subject of review sought after any final
decision of the Commission but may not be pursued collaterally through this
lawsuit.

Facts and Procedural History

Appellant Bradley A. Turner began his service with the Evansville
Police Department in January 1995, hired from a list created by the
Evansville Police Merit Commission. The current dispute began when Chief
of Police Arthur A. Gann issued Turner written reprimands on two occasions
in 1997, once for failing to use reasonable care in the use of a motor
vehicle, and again for failing to follow the police department’s standard
operating procedures.

Chief Gann suspended Turner in early August 1998 for twenty-one days,
with pay, for giving false information in a statement to Internal Affairs
and in testimony to the Merit Commission regarding a disciplinary action
against another officer. Turner filed a notice of appeal with the Merit
Commission regarding this suspension.

When Marvin D. Guest replaced Gann as Chief of Police in late August
1998, Chief Guest amended Turner’s suspension to be served without pay.
Turner appealed this amended suspension to the Merit Commission. In late
1998, Guest suspended Turner two more times, first for failing to follow
standard operating procedures and “repeated violations,” and later for
being absent from roll call and his assigned posts at the time prescribed
and for “repeated violations.” (R. at 127-28, 130-31.) Turner filed a
notice of appeal for each of these suspensions.

All three of Turner’s appeals remain pending before the Merit
Commission. Before they could be heard, Turner filed a lawsuit challenging
the past and present Chiefs’ right to office, the ordinance establishing
the Merit Commission and an agreement between the City and the Fraternal
Order of Police. He asked the court to enjoin the Commission from
conducting a disciplinary hearing while his lawsuit proceeded. The court
issued such an order, and it still pends.

The trial court granted summary judgment for the defendants. The
Court of Appeals affirmed. Among other things, it held the Evansville
Police Merit Commission was properly constituted under the relevant
statutes and that the Chief of Police was obliged by Article 6, section 6
of the Indiana Constitution to live inside the city limits. Turner v. City
of Evansville, 729 N.E.2d 149 (Ind. Ct. App. 2000). We grant transfer and
vacate the decision of the Court of Appeals.

Subject Matter Jurisdiction

It has long been Indiana law that a claimant with an available
administrative remedy must pursue that remedy before being allowed access
to the courts. City of East Chicago v. Sinclair Refining Co., 232 Ind.
295, 111 N.E.2d 459 (1953). If a party fails to exhaust administrative
remedies, the trial court lacks subject matter jurisdiction. Town Council
of New Harmony v. Parker, 726 N.E.2d 1217 (Ind. 2000).[1]

We recently re-emphasized the value of completing administrative
proceedings before resorting to judicial review in State Bd. Of Tax Com’rs
v. Montgomery, 730 N.E.2d 680, 684 (Ind. 2000)(quoting State v. Sproles,
672 N.E.2d 1353, 1358 (Ind. 1996)),
The reasons for requiring a party to seek administrative remedies are
well established. Premature litigation may be avoided, an adequate
record for judicial review may be compiled, and agencies retain the
opportunity and autonomy to correct their own errors. Even if the
ground of complaint is the unconstitutionality of the statute, which
may be beyond the agency’s power to resolve, exhaustion may still be
required because ‘administrative action may resolve the case on other
grounds without confronting broader legal issues.’

(Citation omitted.)

Turner appropriately filed a notice of appeal of each of his
suspensions with the Merit Commission, which would go forward but for the
restraining order obtained by Turner. This right of appeal from discipline
by a Chief is common in Indiana’s various statutory schemes. See, e.g.,
Ind. Code Ann. § 36-8-3.5-19(b)(West 1997). A decision by the commission
is also subject to judicial review. Ind. Code Ann. § 36-8-3.5-18 (West
1997). Turner’s challenges to the Chief’s authority, and the Commission’s
own compliance with relevant statutes may be challenged before the body and
subsequently raised in court through the process of judicial review. See,
e.g., City of Marion v. Antrobus, 448 N.E.2d 325 (Ind. Ct. App. 1983)(board
whose composition was challenged at officer’s disciplinary hearing later
held on judicial review to be unlawfully constituted, officer’s suspension
reversed). To preserve these issues for judicial review, Turner must first
present them at the administrative hearing. See Sullivan v. City of
Evansville, 728 N.E.2d 182 (Ind. Ct. App. 2000)(plaintiff waived challenge
to authority of police chief by failing to make a timely objection at the
hearing).

Turner was required to pursue his administrative remedies and may not
avoid doing so through this collateral action.[2] Consequently, the trial
court lacked subject matter jurisdiction to address the merits of Turner’s
amended complaint.

Conclusion

Having heard the City’s motions, the trial court granted summary
judgment and also ordered dismissal. It was the latter action that was
appropriate. We affirm the dismissal and direct the court to dissolve the
injunction preventing the Merit Commission from hearing Turner’s appeal.

Dickson, Sullivan, Boehm, Rucker, JJ., concur.
Boehm, J., concurs with opinion, in which Dickson and Rucker, JJ., join.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES

Jeffrey W. Waggoner Michael D. Marine
Indianapolis, Indiana Indianapolis, Indiana

Bradley L. Williams
Indianapolis, Indiana

________________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

________________________________________________________________________

BRADLEY A. TURNER, )
)
Appellant(Plaintiff Below), ) Indiana Supreme Court
) Cause No. 82S05-0008-CV-479
v. )
) Indiana Court of Appeals
CITY OF EVANSVILLE et al., ) Cause No. 82A05-9908-CV-358
)
Appellees (Defendants Below). )
________________________________________________________________________

APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9812-CP-397
________________________________________________________________________

ON PETITION FOR TRANSFER

__________________________________________________________________
January 18, 2001[DATE]

BOEHM, Justice, concurring.
I join in the opinion of the Court. Because that opinion adequately
disposes of this case, I would normally be content to leave resolution of
the issue presented by the merits of this case for another day. However,
the Court of Appeals addressed an important question in holding that the
Indiana Constitution requires that the police chief reside within the
Evansville city limits.
I agree that Turner has no standing to raise that issue in this
lawsuit. Nevertheless, for better or worse, the Court of Appeals has
resolved the issue in a published opinion that I assume affects a number of
public safety officials and perhaps others serving local governmental units
across Indiana. Rather than leave these public servants in doubt as to the
need to resign their positions or relocate their families, I would address
the question of who is an “officer” within the meaning of Article VI,
Section 6 of the Indiana Constitution. It is my view that the Evansville
Chief of Police is not subject to the residency requirement in Article VI,
Section 6.
The origin of the residency provision can be traced to Article XI,
Section 6 of the Indiana Constitution of 1816:
All officers shall reside within the state; and all District, County,
or Town officers, within their respective Districts, Counties, or
towns (the trustees of the town of Clarkesville [sic] excepted) and
shall keep their respective offices, at such places therein, as may be
directed by law; and all Militia officers shall reside within the
bounds of the Division, Brigade, Regiment, Battalion or company to
which they may severally belong.

The proceedings of the 1850 constitutional convention shed little light on
the purpose of the original provision or the modified version we now find
in Article VI, Section 6. The 1850 debate was concerned solely with the
exception for the trustees of the town of Clarksville. That exception did
not survive the constitutional convention.[3] The constitutions of 1816
and 1851 were written in an era of vastly simpler government, when
transportation and communications were extremely difficult.[4] In 1815,
Indiana’s population was fewer than 64,000 women, men, and children living
in small communities dotting a 36,000 square mile expanse.
It seems to me that the “officers” contemplated by this constitutional
provision are those identified in the Indiana Constitution itself as
“officers” and those county, township, and town officials who have been
identified by statute as those who, in the terms of Article VI, Section 3,
are elected or appointed “by law” to perform similar functions. I assume
no one would argue that every statutorily provided public employee is an
“officer” for these purposes. If that is correct, some rather bright line
is required here to permit these public servants and their employers to go
about their business with confidence that there will not be constant
skirmishing over eligibility to hold municipal and county jobs.
Since 1863, a number of appellate decisions have struggled to
determine which local officials are “officers” within the meaning of
Article VI, Section 6. Everyone seems to agree that the term, at a
minimum, embraces the “officers” identified as such in the constitution
itself. These are the county clerk, auditor, recorder, treasurer, sheriff,
coroner, and surveyor. In addition, the senior legislative components of
local government are required to live in their jurisdictions. All of the
foregoing are elected to their posts. Some decisions have held other
public servants to be constitutional officers. Relender v. State ex rel.
Utz, 149 Ind. 283, 288, 49 N.E. 30, 32 (1898) (“Members of a board of
commissioners are certainly county officers . . . .”); Yonkey v. State ex
rel. Cornelison, 27 Ind. 237, 240-41 (1866) (county recorder is “officer”);
State ex rel. Cornwall v. Allen, 21 Ind. 516, 521 (1863) (county auditor is
“officer”); City of Marion v. Antrobus, 448 N.E.2d 325, 330 (Ind. Ct. App.
1983) (members of the city Board of Public Works and Safety are
“officers”); Willsey v. Newlon, 161 Ind. App. 332, 334, 316 N.E.2d 390, 392
(1974) (township justice of peace is an “officer”).
In 1980, the General Assembly imposed residency requirements on twenty
county, township, and town positions that were specifically identified as
subject to Article VI, Section 6.[5] This list did not include any law
enforcement personnel beyond the constitutionally created office of county
sheriff. In addition to the list tied specifically to Article VI, Section
6, a variety of statutes impose other residency requirements. Ind.Code §
33-14-1-1.5 (Supp. 2000) (prosecuting attorney must reside in same judicial
circuit); id. § 36-4-9-11 (1998) (corporation counsel of city with
population greater than 6,000 must live within county); id. § 36-7-4-216
(citizen members of plan commission must be residents of the jurisdictional
area of the commission); id. § 36-7-14-7 (Supp. 2000) (redevelopment
commissioner must be resident of unit that he serves); id. § 36-8-3.5-6
(1998) (member of merit commission must have been resident of local unit
for three years before appointment); id. § 36-8-4-2 (Supp. 2000) (members
of police and fire departments must live within county where city, town, or
township is located, or in a contiguous county).
Although this Court is certainly not bound by the legislature’s
interpretation of the term “officer” as used in Article VI, Section 6, it
seems to me that the General Assembly’s conclusions are correct. The top
executive individuals and bodies of counties, towns, and townships are
included, as are the analogs to the constitutionally created offices. The
elected sheriff, who reports to no one, is the sole law enforcement
official on the list. In contrast, a city chief of police normally is
accountable to a mayor, a board of safety or merit commission, or both.
Here, the police chief’s control over the police department is not
absolute; it is tempered by the mayor’s oversight and the Evansville Merit
Commission’s exclusive authority over hiring, firing, and disciplinary
matters. Evansville, Ind., Code § 3.30.37.509(B) & 30.37.505 to .528.
I agree that various public servants, including chiefs of police, may
be “officers” within the meaning of some statutes. However, this is purely
a matter of legislative construction. Thus, I have no trouble agreeing
that the legislature intended to include the chief of police in an anti-
corruption prohibition applicable to local “officers.” State v. Carey, 241
Ind. 692, 175 N.E.2d 354 (1961). But Carey seems to shed little light on
the use of the same term in the 150-year-old residency requirement of the
state constitution, which presumably had in mind the goals of political
accountability and familiarity with local issues. Moreover, the word
“officer” is used in various statutes to describe a number of public
servants whom no one would identify as constitutional officers. For
example, although the code refers to “law enforcement officers,” I do not
believe that anyone would suggest that every policeman or deputy throughout
the state of Indiana is subject to Article VI, Section 6. Secondly, the
test sometimes cited for identifying an “officer”—one who exercises
“sovereign authority”—clearly applies to law enforcement and regulatory
officials.
In sum, practical considerations of geography and limited
communication undoubtedly influenced the constitutional residency
requirement at its origin. These are no longer as significant, but the
assumed goals of political accountability and familiarity with local issues
remain. In my view, neither goal is sufficiently served by extension of
Article VI, Section 6 to an appointed city chief of police who is himself
accountable to a layer of constitutional officers.

DICKSON and RUCKER, JJ., concur.

-----------------------
[1] A party may gain judicial review without satisfying this prerequisite
in limited circumstances, such as where pursuit of administrative remedies
would be futile, or where strict compliance would cause irreparable harm,
or where the applicable statute is alleged to be void on its face. Bellamy
v. Gillis, 722 N.E.2d 905, 909 (Ind. Ct. App. 2000). None of these seem to
apply here.

[2] A proper challenge to an office is made by filing a quo warranto
action. Hovenac v. Diaz, 397 N.E.2d 1249, 1250 (Ind. 1979).

[3] Clarksville has a unique origin. It was created by the state of
Virginia in 1783 out of lands granted to the “Illinois regiment.” The
Virginia legislature set aside one thousand acres for the creation of the
town of Clarksville and appointed ten men, including George Rogers Clark,
as the board of commissioners of the town. It was their duty to survey and
distribute the resulting parcels. The 1783 act also gave the board of
commissioners the unusual ability to choose its own successors. The
propriety of the entire arrangement was challenged in a dispute that
reached the United States Supreme Court in 1832. Hughes v. Trustees of
Clarksville, 31 U.S. (6 Pet.) 369 (1832). An opinion authored by Chief
Justice Marshall upheld the strange composition of the Clarksville town
trustees. I have been unable to find any explanation of the 1816 Indiana
Constitution’s exemption of the trustees of Clarksville from the residency
requirement of Article XI, Section 6. In any event, by 1850,
constitutional delegates had lost any sympathy for the trustees of one
town—no matter how unique its origins—who chose to live in another. 1
Report of the Debate and Proceedings of the Convention for the Revision of
the Constitution of the State of Indiana 930-31 (Indiana Historical
Collections Reprint, 1935).
[4] William Huff, a delegate to the constitutional convention of 1850,
reminded the convention of the difficulties of travel. He first pointed
out the scarcity of good roads and bridges, and continued:
The two counties [Spencer and Perry] front about one hundred miles on
the Ohio river, and there are some five or six considerable sized
streams emptying into the Ohio . . . which makes it very inconvenient
for the citizens . . . to get to and from their county seats. In
fact, it is sometimes almost impossible without going to the river and
boarding a boat; or, if they cannot get a boat without waiting too
long, they sometimes throw a couple of logs in and fasten them
together and board them. This kind of conveyance will do very well if
they wish to go down stream, but it will not do so well for traveling
up stream, and consequently they have to depend entirely on a boat;
and if no boat comes in time, they cannot go at all. Debates at 932.
[5] Those positions are: city court judge (Ind.Code § 33-10.1-3-2 (1998));
member of the county “executive” (id. § 36-2-2-5); member of the county
“fiscal body” (id. § 36-2-3-5); county auditor (id. § 36-2-9-2); county
treasurer (id. § 36-2-10-2); county recorder (id. § 36-2-11-2); county
surveyor (id. § 36-2-12-2); county sheriff (id. § 36-2-13-2); county
coroner (id. § 36-2-14-2); county assessor (id. § 36-2-15-2); executive of
UNIGOV (id. § 36-3-3-4); city-county council of UNIGOV (id. § 36-3-4-2);
mayor (id. § 36-4-5-2); common council/city legislative body (id. § 36-4-6-
2); city clerk (id. § 36-4-10-3); town legislative body (id. § 36-5-2-6);
town clerk-treasurer (id. § 36-5-6-3); township trustee (id. § 36-6-4-2);
township assessor (id. § 36-6-5-1 (Supp. 2000)); and township legislative
body (id. § 36-6-6-3 (1998)).