Delaney v. Carmichael, Cause No. IP 86-1643-C.

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Citation670 F. Supp. 255
Docket NumberCause No. IP 86-1643-C.
PartiesMichael J. DELANEY, Plaintiff, v. Gary CARMICHAEL, Individually and as Sheriff of Delaware County, Jim Hendricks, Individually and as a member of the Reserve Review Board, Randy Johnson, Individually and as a member of the Reserve Review Board, Earl Roberts, Individually and as a member of the Reserve Review Board, James St. Meyer, Individually and as a member of the Reserve Review Board, Larry Clark, Individually and as a member of the Reserve Review Board, Rich Lopez, Individually and as a member of the Reserve Review Board, Defendants.
Decision Date26 August 1987

Wesley D. Schrock, Shearer & Schrock, Anderson, Ind., for plaintiff.

Edwin L. Gagnon, Byrum, Gagnon & Diehl, Indianapolis, Ind., for defendants.


BARKER, District Judge.

This matter is before the court on cross-motions for summary judgment by the plaintiff Michael Delaney and the defendants Gary Carmichael, et al. Both parties argue that there is no genuine issue as to any material fact and each claims entitlement to judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56(c). Set forth below are the decision and reasoning of the court.

I. Background

In June of 1980 Michael L. Delaney was appointed to the Delaware County Police Reserves in Delaware County, Indiana. Mr. Delaney served as a reserve police officer for approximately four and one-half years but, apparently, at some point questions were raised about Mr. Delaney's adherence to the Rules and Regulations of the Delaware County Police Reserves. On January 10, 1985, Mr. Delaney was questioned about these alleged violations at a meeting of the Reserve Review Board, an entity which had as members Jim Hendricks, Randy Johnson, Earl Roberts, James St. Meyer, Larry Clark, and Rich Lopez, all defendants in this action. Shortly after the January 10, 1985 meeting on January 15, 1985, the Sheriff of Delaware County, Gary Carmichael, sent a letter to Mr. Delaney discharging him from the reserve police force.

In response, Mr. Delaney filed this action against the members of the Reserve Review Board and Mr. Carmichael. Mr. Delaney claims that his termination was ineffective and that the manner of his termination violated his rights to due process as guaranteed by the fourteenth amendment to the United States Constitution. Because Mr. Delaney is bringing the suit pursuant to 42 U.S.C. § 1983, this court has jurisdiction under 28 U.S.C. § 1343(a)(3).

Mr. Delaney moves for summary judgment on his claim and posits three basic arguments as to why his motion should be granted. First, he urges that the Delaware County Ordinance which grants the sheriff authority to discharge reserve police officers without notice or cause is void because it conflicts with state statutes. Second, the plaintiff argues that state statutes forbid a sheriff from unilaterally discharging a reserve police officer and instead require that the sheriff obtain approval from the sheriff's merit board of the county. Finally, Mr. Delaney argues that his summary discharge violated his right to procedural due process.

The defendants respond by denying all of Mr. Delaney's allegations. In addition, they have moved for summary judgment in their favor on the ground that Mr. Delaney was an employee at will and thus was properly discharged by Mr. Carmichael. Alternatively, the defendants urge that they are immune from this section 1983 claim because their acts were performed as discretionary functions.

II. Discussion

Delaware County has by ordinance specifically authorized its sheriff to summarily dismiss reserve police officers. Delaware County Code § 1-9-1 declares: "(C) Members of `the Delaware County Police Reserves' shall be appointed by the Sheriff of Delaware County.... (E) A member of the Delaware County Police Reserves may be removed by the Sheriff at anytime, without notice, and without assigning any cause." Mr. Delaney urges, however, that the county ordinance is in conflict with statutes enacted by the Indiana General Assembly and that, therefore, the county ordinance must be struck down as void.

This court fails to perceive any such conflict between the Delaware County Ordinance and any of the referenced state statutes. The plaintiff argues that the appointment procedure established by the Delaware County Code violates the provisions of Indiana Code §§ 36-8-3-20 and 36-8-10-10. In its relevant portion, section 36-8-3-20 provides that "police reserves shall be appointed by the same authority that appoints regular members of the department" and § 36-8-10-10, in turn, limits appointment of regular members of the police department to "only those applicants who in the opinion of the Sheriff and the merit board best meet the prescribed standards and prerequisites."

The plaintiff argues that the Delaware County Code conflicts with these state statutes because it allows appointments of reserve police officers without approval of the merit board. Mr. Delaney was appointed prior to the 1984 enactment of Delaware County Code § 1-9-1. Furthermore, as the defendants point out, Delaney's complaint does not challenge his appointment to the reserves, only his dismissal. The court, therefore, will not directly address or attempt to resolve this issue because it is not properly presented in the case at bar.

The plaintiff also urges that the Delaware County Ordinance is void because its sanctioning of unilateral dismissals of reserve officers by the sheriff is in conflict with Indiana Code § 36-8-10-11 which, in pertinent part, provides that "the Sheriff may dismiss, demote, or temporarily suspend a county police officer for cause after preferring charges in writing and after a fair public hearing before the merit board.... A notice of the charges must be delivered by certified mail to the officer to be disciplined...." The plaintiff acknowledges that the term "county police officer" expressly encompasses only regular police officers. He argues, however, that this language of I.C. § 36-8-10-11 should be seen as impliedly encompassing the dismissals of reserve police officers as well. See Plaintiffs' Brief in Support of Summary Judgment at 4.

Of course, if the court were to adopt the plaintiff's interpretation of I.C. § 36-8-10-11, the Delaware County Ordinance allowing the Sheriff to summarily dismiss reserve police officers would have to be struck down as inconsistent. The plaintiff argues in favor of interpreting the dismissal procedures of I.C. § 36-8-10-11 to apply equally to reserve police officers, by noting that the Indiana Code is

clear about reserve police officers being appointed by the same authority which appointed the regular police officers. I.C. § 36-8-3-20. Further, the Code provides that regular police officers can be removed by the Sheriff with approval of the Board. This implies that reserve police officers shall be treated the same as regular county police officers for the purpose of discipline and removal.

Plaintiff's Brief in Support of Motion for Summary Judgment at 4. The logic of this argument escapes the court. How the fact that the Code requires reserve police officers to be appointed by the same authority as regular police officers and then sets out a procedure for removing regular police officers "implies" that reserve police officers should be removed in the same way is unclear at best. If anything, the fact that the Code expressly requires that reserve police officers only be appointed — but not removed — by the same authority as regular police officers (see I.C. § 36-8-3-20), combined with the fact that § 36-8-10-11 refers only to "county police officer" and not to "police reserves" "implies" that the state legislature had every intention of excluding reserve police officers from the procedural protections of I.C. § 36-8-10-11. The language of section 36-8-3-20 makes it clear that the legislature was aware of how to make a statute expressly applicable to reserve police officers. The reading of other sections of the Code makes it equally clear that the state legislature maintained a distinction between the terms "county police officer" and "police reserves" — and that the former did not include the latter. The fact that reserve officers are treated differently than regular county police officers does not necessarily establish a conflict in the controlling statutes and ordinance. That clearly appears to be what the legislative bodies intended in this instance, and it is the duty of this court to give effect to the "plain language" of a statute when the legislative intent is sufficiently clear in its context. See Ernst and Ernst v. Hochfelder, 425 U.S. 986, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976). Furthermore, even if the statutory language here is arguably ambiguous, it should be read in a way that preserves the clear intent of the legislature. Cf. C.I.R. v. Engle, 464 U.S. 206, 104 S.Ct. 597, 78 L.Ed. 2d 420 (1984). Given this, the court finds that the terms of I.C. § 36-8-10-11 are not applicable to dismissals of reserve police officers and Delaware County Ordinance § 1-9-1-E is not in conflict with the state statute.

The plaintiff's second argument for summary judgment is equally flawed. He urges that, regardless of whether Ordinance § 1-9-1-E is void, the sheriff's unilateral dismissal of Mr. Delaney violates Indiana statutes. Again the plaintiff looks to I.C. § 36-8-3-20 and argues that "by failing to provide a different means of terminating reserve county police officers from that of regular county police officers, while stating that the manner of appointment shall be the same, our legislature has, by implication, expressed the intent that the two classes of police officers shall be treated the same when it comes to dismissal or termination from the department." Plaintiff's Brief at 7-8.

This is a somewhat baffling argument. Express provision of an appointment procedure for the...

To continue reading

Request your trial
2 cases
  • Shannon v. Bepko, IP 87-327-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 14 Marzo 1988 the question before the court is whether the plaintiff had any protectible property interest in his job. Delaney v. Carmichael, 670 F.Supp. 255, 259 (S.D.Ind.1987). It is equally well settled that property interests that are entitled to procedural due process protection "are created and ......
  • Kennedy v. McCarty, IP 90-228-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 25 Noviembre 1991 may reflect on the likelihood that the legislature intended it to be protected. Finally, this court turns to Delaney v. Carmichael, 670 F.Supp. 255 (S.D.Ind. 1987). In Delaney, on facts somewhat similar to this case, Judge Barker of this district ruled the fact that the Code expressly re......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT