Bolerjack v. Forsythe, 3-882

CourtCourt of Appeals of Indiana
Citation461 N.E.2d 1126
Docket NumberNo. 3-882,3-882
PartiesDean BOLERJACK, Sheriff, St. Joseph County; Thomas J. Roemer, Police Merit Board Member; Walt P. Risler, Police Merit Board Member; Gustav C. Schuttros, Police Merit Board Member; Daniel Clark, Police Merit Board Member; St. Joseph County Police Merit Board; St. Joseph County Board of County Commissioners, Defendants-Appellants, v. Keith W. FORSYTHE, Plaintiff-Appellee. A 228.
Decision Date10 April 1984

Robert F. Gonderman, South Bend, for defendants-appellants.

John C. Ruckelshaus, Walter F. Lockhart, Ruckelshaus, Roland & O'Connor, Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

In May of 1976, Keith W. Forsythe was a police officer with the St. Joseph County Police Department. Dean Bolerjack was the sheriff of that county.

On May 6, 1976 Forsythe had a conversation with Bolerjack in Bolerjack's office. Forsythe mentioned the possibility that he and other officers might file an impeachment suit against Bolerjack. During the conversation, Forsythe revealed a body microphone he was wearing purportedly to record the conversation, although in fact no recording was made.

On June 15, 1976 the Prosecuting Attorney of St. Joseph County filed a suit for impeachment against Bolerjack in the St. Joseph County Circuit Court. That same day, Bolerjack filed charges against Forsythe and temporarily suspended him pending hearing before the sheriff's merit board, all pursuant to IC 17-3-14-7. 1 The charges alleged that on May 6, 1976 Forsythe did "engage in conduct unbecoming a police officer" and did "willfully commit an act of overt insubordination against his superior officer" by concealing the microphone on his body during the conversation with Bolerjack.

On July 1, 1976 the merit board rendered its decision finding Forsythe guilty of both charges filed against him and ordering Bolerjack to permanently discharge him.

On July 16, 1976 Forsythe filed for judicial review of the merit board's decision in the St. Joseph Circuit Court naming as defendants Bolerjack, the St. Joseph County Police Merit Board and its four individual members, 2 and the St. Joseph County Board of Commissioners. The cause was transferred to Starke County on Forsythe's motion for change of venue.

On August 30, 1979 the Starke Circuit Court entered its Findings of Fact, Conclusions of Law, and Judgment. The relevant conclusions reached by the court were as follows:

1) There was insufficient evidence to show that Forsythe was guilty of "insubordination." 3 Tr. 67.

2) The charge of "conduct unbecoming an officer" was unconstitutionally vague as applied to the facts presented. Tr. 68, 69.

3) The merit board decision was further defective because it was based on perjured testimony and contrary to the evidence, and was therefore illegal, arbitrary and capricious. Tr. 69.

The court reversed and vacated the merit board decision and ordered the merit board and the present sheriff 4 to reinstate Forsythe effective September 1, 1979. The court also set a hearing to be held to determine the amount of damages suffered by Forsythe during his wrongful suspension. At the damage hearing, Forsythe was awarded $18,500 5 plus $653.40 transcript costs. The court ordered that the reinstatement effective September 1, 1979 was to be at full salary. The court also ordered the enforcement of the judgment stayed pending the appeal of the decision and further order of the court.

We dismissed the appeal without decision on the merits under Cause No. 3-280 A 55 on February 6, 1981. The petition for rehearing was denied on March 27, 1981 and the petition for transfer to the Indiana Supreme Court was denied on July 13, 1981. On July 17, 1981 the Starke Circuit Court removed the stay on the enforcement of the judgment. Forsythe was reinstated with the St. Joseph County Police Department soon after the removal of the stay.

On February 22, 1982 Forsythe filed his "Verified Motion for Proceedings Supplemental or, in the Alternative, Action for Mandate of Funds to Satisfy Judgment." This motion resulted in another hearing to determine the additional amount Forsythe would have earned had he been reinstated on September 1, 1979 and employed by the police department during the appeal.

On May 18, 1982 the Starke Circuit Court entered its order on the Verified Motion for Proceedings Supplemental finding, pursuant to IC 34-1-44-7, 6 that Forsythe had previously been awarded $19,153.40, which amount had been paid to the Clerk of Starke County on January 6, 1982, and that Forsythe would have earned $25,657.65 had he worked for the police department from September 1, 1979 until his reinstatement. The order continued as follows:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Clerk of Starke County immediately release to plaintiff the amount of $19,153.40 paid into Court in satisfaction of the prejudgment wages and transcript costs;

IT IS FURTHER ORDERED that defendants, St. Joseph County Police Merit Board, its members, and the St. Joseph County, Indiana, Board of Commissioners, by the St. Joseph County Auditor, forthwith draw a draft and pay to plaintiff Kevin W. Forsythe, $25,657.65 as the amount of wages he would have received from September 1, 1979 to the date of his reinstatement, that such sum be paid out of unappropriated funds of St. Joseph County, Indiana, and that the St. Joseph County, Indiana, Board of Commissioners take whatever procedural or authorizing action which may be necessary or desirable to accomplish the payment of said $25,657.65 to Mr. Keith W. Forsythe by the Auditor."

Bolerjack, the merit board and its individual members, and the St. Joseph County Board of Commissioners now bring this appeal.

The appellants raise several issues on appeal. However, because we find one to be controlling, we will consider the remaining issues only as they peripherally affect the controlling issue, which is: Whether the judgment orders of the Starke Circuit Court were void for lack of jurisdiction to either compel action by the St. Joseph County Merit Board or to award damages to Forsythe. We believe the trial court was acting outside its jurisdiction and the judgments entered were not merely voidable but were void. The judgments therefore were open to collateral attack at the trial court and upon this appeal.

Forsythe sought judicial review pursuant to IC 17-3-14-7 7 which provides that actions of the sheriff and the merit board are "reviewable in the circuit court." Review by the court of a county merit board's determination is governed by general principles of administrative law, not by the Administrative Adjudication Act (the AAA), IC 4-22-1-1 et seq., which covers only state-wide agencies. Yunker v. Porter County Sheriff's Merit Board (1978), 178 Ind.App. 364, 382 N.E.2d 977.

Although the AAA does not apply directly to this case, this does not mean that decisions involving the AAA's provision for judicial review, IC 4-22-1-8, are inapposite to a consideration of the general principles of administrative law. It is true that the AAA has been found inapplicable to cases involving local agencies and preliminary procedural issues. See South Bend Community School Corporation v. National Education Association--South Bend (1983), Ind.App., 444 N.E.2d 348 (procedure for perfecting appeal of administrative adjudication by school board not governed by AAA); Yunker v. Porter County Sheriff's Merit Board (1978), 178 Ind.App. 364, 382 N.E.2d 977 (requirement in AAA of at least five-day notice of matters to be determined by administrative agency not applicable to sheriff's merit board); Wolfcale v. Wells County (1977), 173 Ind.App. 569, 364 N.E.2d 1023 (deputy sheriff suspended by merit board not limited by AAA's fifteen day period in which to seek judicial review). However, issues concerning the permissible scope of judicial review are governed by principles common to both the AAA and general principles of administrative law, regardless of whether the agency is local or state-wide. Article 3, Section 1 of the Indiana Constitution imposes the separation of powers as the most significant and stringent limitation on the extent of judicial review of an administrative adjudication. See Public Service Commission v. Chicago, Indianapolis and Louisville Railway Company (1956), 235 Ind. 394, 134 N.E.2d 53; State ex rel. Public Service Commission v. Johnson Circuit Court (1953), 232 Ind. 501, 112 N.E.2d 429; Wolf, Judicial Intervention in Administrative Agency Proceedings, 22 Res Gestae 548 (1978). A court is not a legislative or executive agency and has no authority to usurp or exercise the functions delegated to such agencies. Johnson Circuit Court, 112 N.E.2d at 431.

One case expressly adopts the AAA's standards for judicial review in a situation not specifically covered by the AAA. Indiana Department of Public Welfare v. DeVoux (1974), 161 Ind.App. 40, 314 N.E.2d 79. We believe that resolving the essential issue of the permissible scope of judicial review in this case should be considered without distinguishing cases arising under the AAA from ones that do not. 8

Section 18 of the AAA states the parameters for judicial review of an administrative adjudication.

"Sec. 18. On such judicial review such court shall not try or determine said cause de novo, but the facts shall be considered and determined exclusively upon the record filed with said court pursuant to this act.

On such judicial review if the agency has complied with the procedural requirements of this act, and its finding, decision or determination is supported by substantial, reliable and probative evidence, such agency's finding, decision or determination shall not be set aside or disturbed.

If such court finds such finding, decision or determination of such agency is:

(1) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or

(2) Contrary to constitutional right, power, privilege or...

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