City of Mishawaka v. Stewart

Decision Date30 April 1974
Docket NumberNo. 474S90,474S90
Citation261 Ind. 670,310 N.E.2d 65
PartiesCITY OF MISHAWAKA, Indiana, Respondent-Appellant, v. Thomas J. STEWART, Petitioner-Appellee.
CourtIndiana Supreme Court

Myron J. Hack, South Bend, for petitioner-appellee.

PRENTICE, Justice.

This case is before us on a petition to transfer from the Court of Appeals, District Three, the decision and opinion of that Court having been filed on January 31, 1973 and reported at 291 N.E.2d 900. Rehearing was denied March 22, 1973.

Although more issues were formed and responded to in the Court of Appeals, only two are pertinent to our determination.

I. Must a litigant proceeding under Acts of 1905, ch. 129, § 160, as amended by Acts of 1933, ch. 86, § 1, Acts of 1935, ch. 282, § 1 and by Acts of 1971 P.L. 252, § 1, the same being IC 18--1--11--3 and 1973 Supp. to the 1963 Repl. Burns Ind.Stat.Ann. § 48--6105, file a petition for rehearing within ten days of the decision of the trial court as a prerequisite to perfecting an appeal to the Court of Appeals?

II. Were the 'due process' rights of the petitioner, as guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Article I, Section 12 of the Constitution of Indiana, violated by virtue of the City Attorney, in his capacity as a member of the Board of Public Works and Safety, participating as a voting member thereof in determining the disciplinary issue before it, while also presenting the case against the petitioner?

This proceeding began as a disciplinary hearing before the Board of Public Works and Safety of the City of Mishawaka, hereinafter referred to as 'the board,' to determine charges of misconduct against Stewart, hereinafter called 'the petitioner,' pursuant to the statute above cited and hereinafter referred to as § 48--6105. The petitioner was found guilty of insubordination and was reduced from the rank of captain to private in the Fire Department of the city. He was further found guilty of conduct unbecoming an officer and misconduct in the violation of fire department rules, in that he knowingly received stolen property. For this offense, the petitioner was dismissed from the fire department.

From the aforesaid decision of the board, the petitioner sought and obtained a judicial review by the Circuit Court, as to the count of misconduct. The matter was presented to the Circuit Court solely upon the basis of a written transcript of the hearing before the board, and that court determined, inter alia, that the board was without a quorum at the time of the hearing and therefore not legally constituted. Accordingly, it vacated the dismissal order of the board and ordered the petitioner reinstated. Respondent (City of Mishawaka) filed a motion to correct errors without first filing a petition for rehearing as provided by § 48--6105. Following the overruling of the motion to correct errors by the Circuit Court, the respondent perfected this appeal to the Court of Appeals, Third District, which reversed the Circuit Court.

Following the filing of a petition for rehearing and a denial thereof by the Court of Appeals, the petitioner timely filed a procedurally correct petition to transfer to this Court. The said petition to transfer is now granted. The aforesaid decision of the Court of Appeals is hereby vacated, and the judgment of the trial court is now affirmed.

ISSUE I. Upon this issue, we adopt the opinion of the Court of Appeals as written by Judge Sharp, as follows:

'* * * It is the contention of Stewart that the Board must file a petition for rehearing within ten days of the decision of the trial court as a prerequisite to perfecting an appeal to this court.

'In the instant case, the Board filed a Motion to Correct Errors within the perscribed time limit, but did not file a petition for rehearing. The issue is whether the Indiana Rules of Procedure have superseded the statutory provisions of § 48--6105 to the extent that a motion to correct errors rather than a petition for rehearing is the proper method for perfecting an appeal from a decision of a trial court reviewing Board action.

'The pertinent parts of § 48--6105 read as follows:

'Either party to such appeal may file, within ten (10) days after such decision, a petition for a rehearing and the judgment of the court shall be stayed pending the decision thereon. The final judgment of the court shall be binding upon all parties and no further appeal therefrom shall be allowed.

'* * *

'The provisions of the civil code shall govern in all matters of procedure upon such appeal that are not otherwise provided for by this section; but such appeal and the proceedings thereof shall not constitute a civil action, as designated by the civil code.'

'The statute provides that no appeal will be permitted beyond the Circuit Court level and, in lieu of such an appeal, provides for a petition for rehearing before the trial court. Our Supreme Court, however, has specifically held that an appeal to the Supreme or Appeals Court is permissible. City of Elkhart v. Minser, 211 Ind. 20, 5 N.E.2d 501 (1937).

'While there was considerable controversy and confusion as to the proper method to perfect such an appeal prior to the adoption of the Indiana Rules of Procedure, we believe that said rules have settled the question.

'Numerous cases have held that proceedings for judicial review of decisions of Board of Public Works and Safety concerning dismissals of policemen or firemen are 'in the nature of civil proceedings.' Ely v. City of Montpelier, supra (146 Ind.App. 175, 253 N.E.2d 286); City of Fort Wayne v. Bishop, 228 Ind. 304, 92 N.E.2d 544 (1950).

'Trial Rule 1, Indiana Rules of Procedure, IC 1971, 34--5--1 (sic), provides:

'Except as otherwise provided, these rules govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature whether cognizable as cases at law, in equity, or of statutory origin. They shall be construed to secure the just, speedy and inexpensive determination of every action.'

'It will be noted that the rules apply to 'all suits of a civil nature', while the proceeding in this case is 'in the nature of a civil proceeding'. Although the wording is not identical, the meaning is synonymous. Also, since the statute did not contemplate an appeal beyond the circuit court level, it failed to provide for any procedure for such an eventuality. There being no procedural guidelines provided in the statute for an appeal from the proceeding which is of a civil nature, the procedure is governed by the Indiana Rules of Procedure.

'Trial Rule 59(G) provides that:

'In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefore each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.'

'The filing of a motion to correct errors with trial court is a condition precedent to perfecting an appeal from a final judgment. Lows v. Warfield, Ind.App. 259 N.E.2d 107 (1970); Bradburn v. County Department of Public Welfare of St. Joseph County, 148 Ind.App. 387, 266 N.E.2d 805 (1971). Therefore, the Board followed the correct procedure in filing a motion to correct errors with the trial court in the instant case.

'The question now becomes whether the necessity of a Motion to Correct Errors obviates the need for a Petition for Rehearing as contemplated by § 48--6105, or whether both are required before the appeal is properly perfected. The Petition for Rehearing is not required by the Indiana Rules of Procedure. As was pointed out earlier, the petition for rehearing was originally intended to be in lieu of an appeal from the decision of the trial court. Since an appeal is now permitted and, further, since the procedure for such an appeal is governed by the Indiana Rules of Procedure, the Petition for Rehearing serves no useful purpose and should not be considered a condition precedent to the perfection of an appeal. We hold that the Indiana Rules of Procedure requiring the filing of a motion to correct errors has superseded the requirement of § 48--6105 for the filing of a petition for rehearing.'

ISSUE II. There is no dispute but that the petitioner had tenure during good behavior under the statute. State ex rel. Felthoff v. Richards (1932), Ind. 637, 180 N.E. 596. Nor is it disputed that such an interest is protected by the due process provisions of both our state and federal constitutions.

Although holding that the respondent had no such interest, the United States Supreme Court in Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, said that protected interests are those that a person has already acquired in specific benefits and referred to them as property interests that may take many forms. This Court has heretofore held that the tenure rights of policemen and firemen are legally protected rights that the courts will safeguard as carefully as if they were legally protected contract or property rights. State ex rel. Felthoff v. Richards, supra.

The problem before us then is: What are the due process requirements attendant to the deprivation of the petitioner's right to continue in his employment? The statute, § 48--6105, provides that he may be removed for cause after an opportunity for a hearing. A hearing was had and cause was therein established. But did the hearing comport with due process requirements? We have previously said that the purpose of giving the board...

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