Bailey v. City of Lawrence, Ind.

• Decision Date: 02 October 1992
• Docket Number: No. 91-2745,91-2745
• Citation: 972 F.2d 1447
• Parties: Jack L. BAILEY, Plaintiff-Appellant, v. CITY OF LAWRENCE, INDIANA, Thomas D. Schneider, as Mayor of the City of Lawrence, as a member of the Lawrence Board of Public Works and Safety and individually, Harry D. Inskeep, as a member of the Lawrence Board of Public Works and Safety and individually, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1447

972 F.2d 1447

Jack L. BAILEY, Plaintiff-Appellant, v. CITY OF LAWRENCE, INDIANA, Thomas D. Schneider, as Mayor of the City of Lawrence, as a member of the Lawrence Board of Public Works and Safety and individually, Harry D. Inskeep as a member of the Lawrence Board of Public Works and Safety and individually, et al., Defendants-Appellees.

No. 91-2745.

United States Court of Appeals Seventh Circuit.

Argued Feb. 27, 1992.

Decided Aug. 20, 1992.

As Amended on Denial of Rehearing Oct. 2, 1992.

John C. Ruckelshaus, David T. Hasbrook (argued), Ruckelshaus, Roland, Hasbrook

& O'Connor, Indianapolis, Ind., for plaintiff-appellant.

David F. Rees (argued), Lawrence, Ind., for defendants-appellees.

Before COFFEY and MANION, Circuit Judges, and SHABAZ, District Judge. ^*

MANION, Circuit Judge.

Pursuant to Ind.Code § 36-8-4-7, a person may not be appointed to the police department after the person has "reached thirty-six (36) years of age." In 1987, the City of Lawrence, Indiana (Lawrence), appointed Jack L. Bailey to the Lawrence Police Department the day before Bailey's thirty-sixth birthday. In 1990, Lawrence discharged Bailey without a hearing, and Bailey filed suit against the defendants in Indiana state court alleging violations of 42 U.S.C. § 1983 and Indiana law. The defendants removed the case to federal district court, and both parties filed cross-motions for summary judgment. The district court entered summary judgment for the defendants. The court reasoned that Bailey had been ineligible for appointment to the police force because Indiana had adopted the "coming of age" rule under which Bailey had "reached thirty-six (36) years of age" the day before his birthday. Since Bailey's appointment was void ab initio, the court concluded that Bailey was not entitled to any of the termination procedures provided in Ind.Code § 36-8-3-4. We conclude that under Indiana law a person does not reach a given age until his or her birthday; thus we vacate the judgment and remand the case to the district court for further proceedings.

I. Background

The Indiana Code explicitly states that "a person may not be appointed to the police department after the person has reached thirty-six (36) years of age." Ind.Code § 36-8-4-7. Jack L. Bailey was born on December 10, 1951. On December 10, 1987, the Board of Public Works and Safety of the City of Lawrence ("Board") approved the appointment of Jack Bailey as a Lawrence police officer effective December 9, 1987, the day before Bailey's thirty-sixth birthday.

Two-and-a-half years later, on June 18, 1990, the City Attorney wrote to the Board and the Chief of Police and explained that under Indiana law Bailey had already reached 36 years of age on December 9, 1987 and therefore had been ineligible for appointment to the Lawrence police force under Ind.Code § 36-8-4-7. On June 28, 1990, the Board ruled that Bailey's appointment to the police force had been invalid, and in a letter dated June 28, 1990, the Lawrence Chief of Police notified Bailey that he was discharged. Because Bailey's appointment was deemed void ab initio, Lawrence did not afford Bailey the procedures provided in Ind.Code § 36-8-3-4 for termination of police officers.

On appeal we must determine whether the district court correctly concluded that Bailey had not met the age restriction in Ind.Code § 36-8-4-7 and was therefore invalidly appointed to the Lawrence police force on December 9, 1987.

II. Analysis

In examining the district court's grant of summary judgment we will review de novo the record and the controlling law. Woods v. City of Michigan City, 940 F.2d 275, 277 (7th Cir.1991). Bailey and the defendants generally agree upon the facts found by the district court. When the parties do not dispute the factual basis of a motion for summary judgment, our review centers on whether the district court should have issued summary judgment as a matter of law. Id.

As the basis of his section 1983 action, Bailey contends that the defendants violated his constitutional rights by discharging him from the Lawrence police force without due process. To prevail, Bailey must establish a property interest in his employment. Wolf v. City of Fitchburg 70 F.2d 1327, 1330 (7th Cir.1989). As both parties recognize, however, the Constitution does not create property interests.

Rather, [property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Therefore, to ascertain Bailey's property interest in his employment on Lawrence's police force, we turn to Indiana law.

The defendants agree that if Bailey had been validly appointed to the police force, he would have a property interest in his position and would have been entitled to due process before being discharged. Parrett v. City of Connersville, 737 F.2d 690, 693-94 (7th Cir.1984), cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985) (Ind.Code § 36-8-3-4(b) confers on a member of the police force a property interest in his employment). Nevertheless, the district court determined (and the defendants insist on appeal) that Bailey's appointment was invalid. If Bailey's appointment was invalid, then he had no property interest and therefore no right to due process before being discharged. See Hannon v. Turnage, 892 F.2d 653, 656-59 (7th Cir.), cert. denied sub nom. Hannon v. Derwinski, --- U.S. ----, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990) (physician who did not meet the statutory requirements for employment with the Veterans Administration at the time of appointment had no property right in employment); cf. City of Frankfort v. Logan, 168 Ind.App. 81, 341 N.E.2d 510, 513-515 (1976) (employment contract between city and policeman void because policeman had been more than 36 at time of the contract; policeman not entitled to due process before discharge).

The validity of Bailey's appointment turns on whether Bailey was 36 years old on December 9, 1987 (the day before his thirty-sixth birthday). This in turn depends on the precise words used in Ind.Code § 36-8-4-7. Prior to 1986, the age requirement in Ind.Code § 36-8-4-7 read: "A person may not be appointed as a member of the police department after he has reached his thirty-sixth birthday." Ind.Code Ann. § 36-8-4-7 Historical and Statutory Notes (West Supp.1991) (emphasis added). Bailey's thirty-sixth birthday was not until December 10, 1987. Under the prior statute, therefore, his December 9, 1987 appointment would have met the age requirement. At the time the Board purportedly appointed Bailey, however, Ind.Code § 36-8-4-7 provided (as it does now):

A person may not be appointed as a member of the police department after the person has reached thirty-six (36) years of age.

Ind.Code Ann. § 36-8-4-7 (West Supp.1991) (emphasis added). Fixing its attention on the italicized phrase, the district court concluded that Indiana adopted the "coming of age" rule in Wells v. Wells, 6 Ind. 447 (1855), so that a given age is attained the day before one's birthday. Consequently, Bailey had already "reached thirty-six (36) years of age" on December 9, 1987. Under the district court's analysis, then, Bailey was ineligible for appointment to Lawrence's police force. Since Bailey's appointment was invalid, the district court determined that Bailey lacked a property interest in his position and was not entitled to any procedural protections before being discharged. Mem. Op., Jul. 10, 1991, at 5.

The "coming of age" rule is a curiosity of common law of uncertain origin. 5 A.L.R.2d 1143, 1145 (1949). Although the rule supposedly applies to the determination of any age, courts have used the rule most often to ascertain the date upon which the incapacities of infancy are removed. 5 A.L.R.2d at 1143. Indeed, Wells, on which the defendants rely, addressed the removal of a minor's incapacity.

In 1853, E.R. Wells sought to reopen an 1834 case in which the court had transferred title to property from E.R. Wells to his father. Wells, 6 Ind. at 447. At the time of the 1834 transfer, E.R. Wells was only six years old. Although a guardian ad litem had filed an answer to the father's bill in chancery on behalf of E.R. Wells when the transfer was made, the court had neither heard evidence nor provided any process to E.R. Wells. The Wells court determined that November 1853 was not too late for E.R. Wells to reopen the case on the basis of the alleged procedural errors and made the following observation:

If ... we fix his birth-day [sic] at September 23, 1828, he was of age September 22, 1849. That was the date of the removal of the disability. From that date he had five years to bring error. The transcript was filed, and errors assigned in this Court, November 12, 1853. So that he is entitled to his writ of error....

Id. at 448 (emphasis added). The defendants maintain that the italicized language shows that the Indiana Supreme Court adopted the "coming of age" rule and determined that a person attains a given age the day before his birthday.

We think that the defendants read too much into the Wells decision. Whether or not E.R. Wells became 21 on September 23, 1849 or September 22, 1849 had no bearing on the court's decision since in either case his November 12, 1853 filing fell within the five year period for bringing error. Therefore, the court's mention of the date on which E.R. Wells was "of age" is dicta. Even if the court's statement was not dicta, however, it did not establish a general rule that a person attains a given age on the day before the person's birthday. At most Wells simply recognized an exception to the general rules for computing time which provided (and continue to provide) that the day of the initiating event...