City of Mishawaka v. Stewart

Decision Date31 January 1973
Docket NumberNo. 3-772A29,3-772A29
Citation291 N.E.2d 900
PartiesCITY OF MISHAWAKA, Indiana, Respondent-Appellant, v. Thomas J. STEWART, Petitioner-Appellee.
CourtIndiana Appellate Court

R. Wyatt Mick, Jr., Mishawaka, for respondent-appellant.

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

SHARP, Judge.

This proceeding originally began as a disciplinary hearing before the Board of Public Works and Safety of the City of Mishawaka (Board) pursuant to I.C.1971, 18-1-11-3, Ind.Ann.Stat. § 48-6105 (Burns' 1963 Repl.). From the evidence adduced at said hearing Thomas J. Stewart (Stewart) was found guilty of insubordination and was reduced to the rank of private in the Mishawaka Fire Department. Stewart was further found guilty of conduct unbecoming an officer, misconduct and violation of Article XIV, Section 7 of the Rules and Regulations of the Mishawaka Fire Department in that he knowingly received stolen property. Stewart was dismissed from the Fire Department for the latter offense.

Respondent-Appellee, Stewart, filed a verified complaint seeking judicial review as to Count Two of the charges brought against him. The trial court concluded, solely on the basis of the written transcript of the hearing, that there was insufficient evidence to support the Board's determination, that the decision of the Board was arbitrary and illegal, and that the Board was not legally constituted to conduct said hearing and was without a quorum by virtue of the fact that the City Attorney performed the dual function of prosecutor and judge. The trial court vacated and set aside the decision of the Board and ordered the petitioner, Stewart, reinstated. The City of Mishawaka duly filed its Motion to Correct Errors and, when said Motion was overruled, perfected this appeal.

The decision of the trial court was based both upon procedural irregularities during the hearing and upon the merits of the decision itself. Our consideration of this appeal will be similarly structured.


The basic issues regarding the alleged procedural deficiencies of the hearing may be summarized as follows:

(1) Whether it is unlawful and unconstitutional for a City Attorney, who is one of only two members of the Board to participate in an adversary capacity in conducting a hearing by framing the charges and introducing evidence, and also to participate in the decision of the Board.

(2) Whether the trial court was correct in deciding that because the statute required that two members shall constitute a quorum and one of the requisite two was the City Attorney, who operated in a dual capacity, the Board was not legally constituted to conduct hearings and was without a quorum.

A hearing before the Board concerning the dismissal of an officer of the Fire Department must be full and fair, conducted in good faith and before an impartial body. Guido v. City of Marion, Ind.App., 280 N.E.2d 81 (1972); Tryon v. City of Terre Haute, 136 Ind.App. 125, 193 N.E.2d 377 (1964). The right to such a hearng is embodied both in the Fourteenth and Fifth Amendments to the United States Constitution and in the due process clause of the Indiana Constitution. Wong Yang Sung & McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); Tryon v. City of Terre Haute, supra. Any decision of the Board predicated upon a hearing devoid of the requisite requirements is illegal and void. Guido, supra; State ex rel. Felthoff v. Richards, 203 Ind. 637, 180 N.E. 596 (1932).

In Guido, supra, this court was called upon to consider a similar situation and, in line with the great weight of authority, we concluded that:

'Even so, a combination of functions in the administrative body is not per se a violation of due process.' 280 N.E.2d 85.

In Guido, the City Attorney was the presiding member of the board and the Assistant City Attorney took an active part in the elicitation of the facts, either as attorney for the Police Chief or as Attorney for the Board. This court held that the hearing depended upon the particular facts determination of whether there was a fair of each individual case. On the basis of the facts presented, we rejected the contention that the presence of the Assistant City Attorney at the hearing was a denial of due process. We now similarly reject the contention that it was a denial of due process for the City Attorney in this case to frame the charges, conduct the examination of witnesses and to participate in the decision of the Board absent a showing of bias or political motivation.

A hearing before the Board of Public Works and Safety is not an adversary proceeding, but rather an examination by an impartial tribunal to determine the fitness of the officer to continue serving as a member of the Fire Department. State ex rel. Felthoff v. Richards, supra. The hearing is in the nature of a civil proceeding, Ely v. Montpelier, 146 Ind.App. 175, 253 N.E.2d 286 (1969), but the Board is not functioning in the capacity of an adversary, Rose v. State Bd. of Reg. for Healing Arts, 397 S.W.2d 570 (Mo.1965), Idaho Mut. Ben. Ass'n v. Robison, 65 Idaho 793, 154 P.2d 156 (1944).

The Board of Public Works and Safety, by statute, is endowed not only with the power to make a decision resulting in dismissal, but also with the power to examine witnesses. I.C.1971, 18-1-11-3, Ind.Ann.Stat. § 48-6105 reads, in pertinent part, as follows:

'Upon any investigation of the conduct of any member of the fire or police force, or upon the trial of any charge preferred against any member of either such forces, such board of commissioners shall have power to compel the attendance of witnesses, and to examine them under oath, and to require the production of books, papers and other evidence, at any meeting of such board, and for that purpose may issue subpoenas and cause the same to be served and executed in any part of the county where such city is located.' (our emphasis)

Thus, the Board is specifically granted both the power to elicit facts and then the power to make a decision based on said facts. Contrary to the contentions of Stewart, the hearing contemplated by § 48-6105 is not a trial where the Fire Department, through the City Attorney, prosecutes the person against whom charges have been brought. Rather, it is a fact-finding tribunal established to elicitate facts concerning the charges that have been brought. The Board, to be able to fulfill its function, is empowered to examine witnesses in its own right. It cannot be said that because the City Attorney, in his capacity as presiding member of the Board, made use of the power conferred upon him, he prosecuted Stewart on behalf of the Fire Department. This distinction was recognized in Guido at page 85 of 280 N.E.2d, as follows:

'Accordingly, we cannot accept Guido's analogy of the present case to a situation where a trial judge is biased by a 'conflict of interest' with an attorney litigating a case before him. The purpose of a criminal trial is to prove the guilt of the accused person(s). To the contrary, the purpose of a hearing before the Board of Public Works and Safety is not to criminally prosecute. The purpose is only to inquire into the circumstances and ascertain the facts concerning the charges lodged. As stated by our Supreme Court in State ex rel. Felthoff v. Richards, supra, the hearing must be 'dominated solely by a desire to determine the fitness of the person under charges.' (203 Ind. at 642, 180 N.E. at 598.)'

The City Attorney, acting as attorney for the Fire Department, drew up the charges against Stewart and then participated in a determination of those charges. But due process is not necessarily denied by the fact that the hearing is before the same authority which preferred the charges upon which the hearing is had. Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947).

As pointed out earlier in this opinion, the duality of functions is not a per se violation of due process, but rather each case must turn on the particular facts associated therewith. In this case, there are no allegations of personal bias or political motivation. The trial court specifically found that 'there is absolutely no showing that such proceedings were motivated by politics, malice or any vengeful or vindictive spirit.'

Since the City Attorney was performing his statutory duty in examining witnesses and in participating in the ultimate decision of the Board, and further, since Stewart has not shown any bias on the part of the City Attorney, we conclude that the vote cast by the City Attorney was valid. It necessarily follows that the second contention of Stewart that the Board did not have a quorum is unfounded.


Having determined the procedural issues adversely to the judgment of the trial court, there still remains the substantive issues of whether the decision of the Board was based upon substantial evidence and whether the decision was arbitrary and illegal.

The first question is whether all presumptions should be indulged in favor of the decision of the Board or the decision of the trial court. In City of Evansville v. Nelson, 245 Ind. 430, 199 N.E.2d 703 (1964), this precise question confronted our Supreme Court, which held that it would examine the evidence before the hearing authority for the purpose of determining if there was substantial evidence to support its finding and decision. Thus, our Supreme Court implicitly rejected the argument that there is a presumption in favor of the validity of the judgment of the trial court which had set a decision of Civil Service Commission aside. Instead, the Supreme Court again look directly to the decision of said commission and made its own evaluation of whether there was substantial evidence to support the decision of the Commission.

In City of Anderson v. Hadley, 122 Ind.App. 8, 102 N.E.2d 385, 387 (1951), the...

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4 cases
  • City of Mishawaka v. Stewart
    • United States
    • Indiana Supreme Court
    • 30 Abril 1974
    ...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, Although more issues were formed and responded to in the Court of Appeals, only two are pertinent to our det......
  • City of Indianapolis v. Nickel
    • United States
    • Indiana Appellate Court
    • 31 Julio 1975
    ...Court's order of July 29, 1969, adopting the new rules, has superseded it. 2 This same question arose in City of Mishawaka v. Stewart (1973), Ind.App., 291 N.E.2d 900, 906, under a different, but almost identical statute, Ind.Acts 1971, P.L. 252, § 1, being also IC 1971, 8--1--11--3 and Ind......
  • O. Q. v. L. R., 1--1074A163
    • United States
    • Indiana Appellate Court
    • 19 Mayo 1975
    ...and following an adverse ruling thereon appealed to this court. We reversed the decision of the Circuit Court in City of Mishawaka v. Stewart (1973), Ind.App., 291 N.E.2d 900. The Supreme Court granted Stewart's petition to transfer and affirmed the decision of the Circuit Court. Stewart ar......
  • City of Gary v. Gause
    • United States
    • Indiana Appellate Court
    • 31 Octubre 1974
    ...were present in Martin's restaurant for a 'shakedown' or as part of a legitimate police gambling raid. Although City of Mishawaka v. Stewart (Ind.App.1973), 291 N.E.2d 900, was reversed by our Supreme Court, 1 factual similarities between that case and the one at bar necessitate application......

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