City of Marion v. Antrobus

• Decision Date: 02 May 1983
• Docket Number: No. 2-582A143,2-582A143
• Citation: 448 N.E.2d 325
• Parties: CITY OF MARION, Appellant (Defendant Below), v. Jack ANTROBUS, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 325

448 N.E.2d 325

CITY OF MARION, Appellant (Defendant Below), v. Jack ANTROBUS, Appellee (Plaintiff Below).

No. 2-582A143.

Court of Appeals of Indiana,

Second District.

May 2, 1983.

Rehearing Denied Aug. 1, 1983.

James F. Kocher, Stephen Johnson, Biddinger & Johnson, Marion, for appellant.

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

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant City of Marion (the City) appeals a summary judgment denying dismissal of policeman-plaintiff-appellee Jack Antrobus (Antrobus), claiming among other things that the trial court lacked subject matter jurisdiction, that the court erred in concluding the Marion Board of Public Works and Safety (the Board) lacked a quorum to conduct business, and that attorney's fees should not have been awarded.

We affirm in part and reverse in part.

FACTS

The uncontroverted facts reveal that in October, 1980, the Chief of the Marion, Indiana, Police Department filed a complaint with the Board ¹ for disciplinary action against Antrobus, a nine and one half year veteran of the Marion Police Department.

The Board held a hearing on October 27, 1980. At the beginning of the hearing, and prior to any evidence being submitted, the city attorney disqualified himself as a voting member of the Board. The city attorney indicated that the City had employed a special independent hearing judge to preside over the proceedings who would not be a voting member. Antrobus then moved for a dismissal of the pending charges based upon the illegal composition of the Board claiming the two remaining board members were ineligible to serve on the Board and that therefore there was no legal quorum of members to conduct official business. The hearing officer denied the motion in part and took the rest under advisement. The hearing proceeded, and at its conclusion, the Board dismissed Antrobus from the Marion Police Department.

Antrobus appealed the Board's decision to the Grant County Superior Court ² on the basis that the Board lacked a legal quorum to conduct business for two reasons: First, the city civil engineer, James Weagley (Weagley), resided outside the corporate limits of the city of Marion and therefore did not meet the statutory residency requirements. Second, Evelyn Copeland (Copeland), city controller, was ineligible to sit on the Board because she had been illegally appointed to the Board and also because she was the mother of one of the police officers who was listed as a witness against Antrobus.

On March 18, 1981, Antrobus filed his motion for summary judgment with supporting exhibits and a memorandum. The City responded with several affidavits and a response to the motion for summary judgment.

On December 2, 1981, the trial court, finding no genuine issue of material fact, entered summary judgment in favor of Antrobus because, as a matter of law, the Board lacked a legal quorum and therefore its decision was illegal and void. The trial court ordered that Antrobus be reinstated to the police department retroactive to October 27, 1980, with full restoration of pay and all other benefits, plus interest. The trial court also awarded Antrobus $3,000.00 in attorneys fees.

On December 10, 1981, the City filed a motion to dismiss for lack of subject matter jurisdiction, a motion to stay the enforcement of the court's judgment, and a combined motion to correct errors and petition for rehearing. After a hearing, the trial court denied these motions, and the City now appeals.

ISSUES

The issues are essentially three in number:

1. Did the trial court have jurisdiction?

2. Did the Board lack a legal quorum so that its actions were a nullity?

3. Did the trial court err in awarding attorney's fees? ³

DECISION

ISSUE ONE--Did the trial court have jurisdiction?

PARTIES' CONTENTIONS--The City claims the trial court lacked subject matter jurisdiction because Antrobus failed to post the bond with his verified complaint as required by IC 18-1-11-3(b). ⁴

Antrobus responds that the City waived this jurisdictional issue by not objecting timely.

CONCLUSION--The trial court properly exercised jurisdiction.

As there appears to be no genuine issue of material fact in this case, the sole question is whether the law was properly applied. Campbell v. Eli Lilly & Co., (1980) Ind.App., 413 N.E.2d 1054; Stout v. Tippecanoe County Dept. of Public Welfare, (1979) Ind.App., 395 N.E.2d 444.

Ordinarily, the failure to adhere strictly to statutory procedures for perfecting appeals results in a jurisdictional defect that precludes judicial review of an administrative adjudication as a matter of law. See e.g., Indiana State Personnel Board v. Parkman, (1969) 252 Ind. 44, 245 N.E.2d 153; Gleason v. Real Estate Commission, (1973) 157 Ind.App. 344, 300 N.E.2d 116. However, the jurisdictional defect involved in the present case--failure to post bond--does not involve subject matter jurisdiction, only jurisdiction of the particular case. ⁵

Jurisdiction of the subject matter refers to jurisdiction over the class of cases to which the particular case belongs. See, e.g., State ex rel. Johnson v. Reeves, (1955) 234 Ind. 225, 125 N.E.2d 794. Jurisdiction of the subject matter must be derived from the constitution or from a statute, and cannot be conferred by consent of the parties. State ex rel. Wilson v. Howard Circuit Court, (1957) 237 Ind. 263, 145 N.E.2d 4; Farley v. Farley, (1973) 157 Ind.App. 385 300 N.E.2d 375; 1 A. BOBBITT, IND. APPELLATE PRACTICE AND PROCEDURE ch. 5 Sec. 3 (1972). By virtue of IC 18-1-11-3(b), the trial court had subject matter jurisdiction of this case.

Jurisdiction of the particular case refers to the right, authority, and power to hear and determine a specific case within that class of cases over which a court has subject matter jurisdiction. See, e.g., State ex rel. Gilbert v. Kosciusko Circuit Court, (1960) 241 Ind. 122, 170 N.E.2d 51; State ex rel. Oviatt v. Knowles, (1957) 236 Ind. 517, 141 N.E.2d 854; State ex rel. Johnson v. Reeves, supra; Farley v. Farley, supra; 1 A. BOBBITT, supra, ch. 5 Sec. 4.

Although questions concerning subject matter jurisdiction may be raised at any time, attacks on the trial court's jurisdiction of the particular case must be raised at the earliest opportunity possible or they are waived. State ex rel. Dean v. Tipton Circuit Court, (1962) 242 Ind. 642, 181 N.E.2d 230, 235-36; State ex rel. Johnson v. Reeves, supra; State ex rel. Sacks Brothers Loan Co., Inc. v. DeBard, (1978) Ind.App., 381 N.E.2d 119, 120. In the present case the City did not raise the issue of Antrobus's failure to post bond in the trial court until after judgment. This was too late to preserve the issue for appellate review, and the City is thus bound by the trial court's determination that it had jurisdiction. State ex rel. Allman v. Grant Superior Court, (1939) 215 Ind. 249, 19 N.E.2d 467, 469-70; State ex rel. Sacks Brothers Loan Co. v. DeBard, supra.

ISSUE TWO--Did the trial court err in concluding the Board lacked a legal quorum?

PARTIES' CONTENTIONS--The trial court found that the Board lacked a legal quorum because, in part, Weagley (the City Engineer) resided outside the corporate limits of the city of Marion at the time of the hearing and therefore did not meet the statutory residency requirements of Ind.Code 18-1-6-5 (1976). The City contends this conclusion was contrary to law and to the evidence. The City reasons the statute only required Board members to be residents for one year prior to appointment and Weagley's affidavit establishes that he had been a resident for one year prior to his appointment. If the court required residency at the time of the hearing, it was acting contrary to law, the City asserts.

Antrobus responds that, although the statute does not specifically require residency at the time of the hearing, such must have been the intent of the legislature.

CONCLUSION--The trial court correctly concluded that the Board lacked a legal quorum.

IC 18-1-11-3 guaranteed that before being dismissed by the Board, a police officer is entitled to a hearing and an adjudication on the record. The due process clauses of the United States and Indiana Constitutions require that such a hearing before the Board be full and fair, conducted in good faith and before an impartial body. Wong Yang Sung v. McGrath, (1950) 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; Morgan v. United States, (1938) 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129; City of Mishawaka v. Stewart, (1974) 261 Ind. 670, 310 N.E.2d 65, 68; Tryon v. City of Terre Haute, (1964) 136 Ind.App. 125, 193 N.E.2d 377. Any decision of the Board predicated upon a hearing devoid of the requisite requirements is illegal and void. State ex rel. Felthoff v. Richards, (1932) 203 Ind. 637, 180 N.E. 596. One of the requisites of a fair hearing is that the administrative board have a legal quorum, which in this case consisted of two of three members. Ind.Code 18-1-11-2 (1976) (recodified as Ind.Code 36-8-3-3 (1982)); City of Mishawaka, supra.

Here the parties agree that the composition of the Board was controlled by statute. As it then existed, IC 18-2-1-4.2 provided that in second class cities the Board of Public Works and Safety was to be composed of the city controller, the city civil engineer and the city attorney. It is uncontroverted that the city attorney disqualified himself on the grounds of a conflict of interest. This disqualification notwithstanding there appeared to be a quorum present to conduct business inasmuch as the city controller (Copeland) and the city civil engineer (Weagley) were present. However, prior to the beginning of the hearing, Antrobus objected to the composition of the Board. His objection as to Copeland was overruled but his objection as to Weagley was taken under advisement. In any event, if we find that either one of the two remaining Board members was not legally sitting on the Board, ...