913 F.2d 327 (7th Cir. 1990), 89-3051, Lohorn v. Michal

Docket Nº:89-3051.
Citation:913 F.2d 327
Party Name:James M. LOHORN, Plaintiff-Appellant, v. Philip Q. MICHAL, City of Crawfordsville, Indiana, Crawfordsville Metropolitan Board of Police Commissioners of the City of Crawfordsville, Cal Black, John Bowerman, C. Hotopp Zachary, Reverend, and Unidentified Co-Conspirators, Defendants-Appellees.
Case Date:August 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 327

913 F.2d 327 (7th Cir. 1990)

James M. LOHORN, Plaintiff-Appellant,

v.

Philip Q. MICHAL, City of Crawfordsville, Indiana,

Crawfordsville Metropolitan Board of Police Commissioners of

the City of Crawfordsville, Cal Black, John Bowerman, C.

Hotopp Zachary, Reverend, and Unidentified Co-Conspirators,

Defendants-Appellees.

No. 89-3051.

United States Court of Appeals, Seventh Circuit

August 30, 1990

Argued April 9, 1990.

Page 328

Terry Harris and Donald G. Thompson, Young, Harris & Harvey, Crawfordsville, Ind., for plaintiff-appellant.

John S. Capper, IV, Berry, Capper & Tulley, Crawfordsville, Ind., for defendants-appellees.

Before BAUER, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

James Michael Lohorn sued the City of Crawfordsville, Indiana, the Mayor of the City, the City Police Board, and various unnamed defendants under 42 U.S.C. Sec. 1983 for alleged violations of his first and fourteenth amendment rights arising from the Mayor's decision to demote Mr. Lohorn from the rank of Assistant Chief of Police of Crawfordsville to Detective Sergeant. The district court granted the defendants' motion for summary judgment, and Mr. Lohorn appealed. For the following reasons, we believe that summary judgment was granted prematurely. Accordingly, we reverse the judgment of the district court and remand for further proceedings.

I

BACKGROUND

  1. Facts

    Mr. Lohorn has been employed by the Crawfordsville Police Department since

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    March 1976. During his time on the force, Mr. Lohorn has received several promotions. In 1981 he was promoted from the rank of Patrolman to that of Sergeant; in 1983 he was promoted from Sergeant to Detective Sergeant; and on August 8, 1985, during the course of a single meeting of the Crawfordsville Metropolitan Board of Police Commissioners (the Police Board), Mr. Lohorn was first promoted from the rank of Detective Sergeant to Captain of Detectives, and then also was promoted from the rank of Captain of Detectives to Assistant Chief of Police.

    In November 1987, Philip Q. Michal, a Republican, was elected the new Mayor of Crawfordsville. Mr. Lohorn is a Democrat. On December 29, 1987, Mayor-elect Michal sent Assistant Chief Lohorn a letter notifying him that, as of January 1, 1988, he was relieved of his duties as Assistant Chief of Police and would assume the rank of Detective Sergeant. Mr. Lohorn sought a hearing before the Police Board concerning the demotion, but the Police Board denied this request.

    Mr. Lohorn then brought suit under 42 U.S.C. Sec. 1983 against Mayor Michal, the City of Crawfordsville, the Police Board, and other individual named and unnamed defendants. Mr. Lohorn alleged that Mayor Michal's decision to demote him violated his first amendment free speech rights because the decision was politically motivated. He also alleged that the demotion without a hearing violated his due process rights under the fourteenth amendment.

    The defendants moved for summary judgment, relying primarily on section 36-8-3-4(m) of the Indiana Code, which states an exception to the general procedural steps required by Indiana law before a member of the police force can be fired, demoted, or otherwise disciplined. The statutory exception states as follows:

    The executive may reduce in grade any member of the police or fire department who holds an upper level policy making position. The reduction in grade may be made without adhering to the requirements of subsections (b) through (l ). However, a member may not be reduced in grade to a rank below that which the member held before the member's appointment to the upper level policy making position.

    Ind.Code Sec. 36-8-3-4(m) (emphasis supplied). The parties agree that the Assistant Chief of Police of Crawfordsville qualifies as an "upper level policymaking position" under the terms of Indiana Code section 36-8-1-12, which provides in pertinent part:

    "Upper level policymaking position" refers to the position held by the police chief or fire chief and to each position held by the members of the police department or fire department in:

    (1) the next rank and pay grade immediately below the chief, if the authorized size of the department is:

    (A) more than ten (10) but less than fifty-one (51) members, in the case of a police department....

    The defendants contended that, for purposes of Mr. Lohorn's due process claim, section 36-8-3-4(m) foreclosed any property interest in the position of Assistant Chief and removed any procedural protections that might otherwise have been required before relieving Mr. Lohorn of the position. The defendants also relied on section 36-8-3-4(m), in conjunction with section 36-8-1-12, to support their motion for summary judgment on the first amendment claim. Because the Assistant Chief position met the statutory definition of an "upper level policymaking position," the defendants argued that, as a matter of law, the Assistant Chief position fell within the "policymaker" exception to the general rule established in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), that politically motivated firings of public employees violate the first amendment. 1

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    Mr. Lohorn both moved for partial summary judgment and opposed the defendants' motion for summary judgment on the first amendment and due process claims. He opposed the defendants' motion by contending, among other things, that whether the Assistant Chief position indeed was an "upper level policymaking position" was a question of material fact on which the defendants had produced no evidence other than the conclusory language of section 36-8-1-12. Mr. Lohorn also submitted an affidavit from the former Crawfordsville Chief of Police, who testified that Mr. Lohorn performed no policymaking functions during his tenure as Assistant Chief of Police.

    With regard to the due process claim, Mr. Lohorn contended that the Police Board was vested, by local ordinance, with the authority to determine the grounds on which a member of the police force could be removed and that the Police Board, therefore, had an independent duty to grant him a hearing. He also argued that the rules and regulations promulgated by the Police Board and the custom and practice in Crawfordsville, in conjunction with the Crawfordsville City Ordinance, all served to create a property interest in the position of Assistant Chief of which he could not be deprived without due process.

    As a fallback position on his due process claim, Mr. Lohorn argued that, even if Mayor Michal had the authority under section 36-8-3-4 to demote him, Michal still had violated his due process rights under that section by demoting him to a lower rank than he held prior to his assumption of the Assistant Chief position. This dispute concerned the effect of Mr. Lohorn's promotion, during the course of the August 8, 1975 meeting of the Police Board, from Detective Sergeant to Captain of Detectives, and then from Captain of Detectives to Assistant Chief of Police. The defendants contended that the rank Mr. Lohorn actually "held" before his promotion to Assistant Chief was the position of Detective Sergeant, rather than Captain of Detectives. They asserted that the "promotion" from Detective Sergeant to Captain of Detectives was merely "en route" to Mr. Lohorn's promotion to Assistant Chief. The defendants claimed that Mr. Lohorn never performed any duties as Captain of Detectives and never drew any salary at that position. Thus, the defendants asserted, the new Mayor's demotion of Mr. Lohorn from Assistant Chief to Detective Sergeant complied with section 36-8-3-4(m) in that Detective Sergeant was the rank Mr. Lohorn held prior to his assumption of the Assistant Chief position.

    Mr. Lohorn, by contrast, pointed to the minutes of the August 8, 1985 Police Board meeting, which clearly stated that he was promoted to the "permanent rank of Captain of Detectives," R.6 (attachment), before he was promoted to the position of Assistant Chief. Mr. Lohorn also submitted his certificate of promotion, which stated that on August 8, 1985, he had been promoted to the rank of Captain of Detectives. Mr. Lohorn thus contended that, even if Mayor Michal's decision to demote him from Assistant Chief of Police was permissible under section 36-8-3-4(m), the demotion to Detective Sergeant rather than Captain of Detectives was in violation of his rights conferred under that statute.

  2. District Court Opinion

    1. The first amendment claim

    The district court relied solely on sections 36-8-3-4(m) and 36-8-1-12 of the Indiana Code as its basis for rejecting Mr. Lohorn's first amendment claim. Utilizing the statutory designation of Mr. Lohorn's job as an "upper level policymaking position," the district court turned to Seventh Circuit case law on the question of...

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