Gerhardt v. City of Evansville, No. 1-779A207

Docket NºNo. 1-779A207
Citation408 N.E.2d 1308
Case DateAugust 26, 1980
CourtCourt of Appeals of Indiana

Page 1308

408 N.E.2d 1308
Paul GERHARDT, Clyde Carlile, Appellants (Plaintiffs Below),
v.
CITY OF EVANSVILLE, David Graham, Dan Worden, John Lahanis,
Members of the Police Civil Service Commission of
the City of Evansville, Indiana,
Appellees (Defendants Below).
No. 1-779A207.
Court of Appeals of Indiana, Fourth District.
Aug. 26, 1980.

Page 1309

Roy A. Tyler, Tyler, Carithers & Brinson, Evansville, for appellants.

Thomas P. Norton, Evansville, for appellees.

YOUNG, Presiding Judge.

Paul Gerhardt and Clyde Carlile were members of the Evansville Police Department. They were suspended for five days without pay. Their suspensions were reduced from five days to three days without pay by the Police Merit Commission of the City of Evansville.

Gerhardt and Carlile sought judicial review of the suspensions in the Superior Court of Vanderburgh County. The trial court dismissed the case on the belief that it lacked subject matter jurisdiction. The trial court found that it had no jurisdiction to hear such appeal relying on IC 18-1-11-3. This statute permits an appeal only where the suspension of a police officer is for more than ten days. The trial court held that the ten day limitation was constitutional and dismissed their complaint.

We reverse.

The issue here is whether the appellants are entitled to judicial review of the action of the Police Civil Service Commission of the City of Evansville suspending them for three days.

The Indiana statute in question reads in part, as follows:

Any member of such fire or police force who is dismissed from such force, as aforesaid, or is suspended therefrom for any period in excess of ten (10) days or reduced in grade shall have the right to appeal to the circuit court or superior court of the county in which such city is located, from such decision of dismissal or suspension or reduction in grade by said board, but shall not have the right of appeal from any other decision.

IC 18-1-11-3(b) (Emphasis added.) Gerhardt and Carlile assert that to allow suspensions for a period of up to ten days without right to appeal and judicial review violates their constitutional rights to due process.

We agree.

Historically, there was no right of appeal from a ministerial act of an administrative board unless such right was specifically given by the statute. See Cushman v. Hussey (1918) 187 Ind. 228, 118 N.E. 816; State Board of Health, etc. v. Ort, Township Trustee (1926) 84 Ind.App. 260, 151 N.E. 31.

It was further held that the right of appeal from administrative boards applied only to decisions involving the exercise of judicial power. See Financial Aid Corp. v. Wallace, Dir. of the Dept. of Financial Inst., et al. (1939) 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736; Board of Commissioners of Dearborn County v. Droege et al. (1946) 224 Ind. 446, 68

Page 1310

N.E.2d 650; Hall et al. v. Kincaid et al. (1917) 64 Ind.App. 103, 115 N.E. 361.

It was previously held that where the special statutes regulating procedure before administrative boards failed to provide for appellate review of the findings of the Court which reviewed the orders of administrative board, such appellate review could not be taken. See Cincinnati I. & W. R. Co. et al. v. Board of Public Works of the City of Indianapolis et al., 187 Ind. 235, 118 N.E. 957; Luten v. Schmidt et al. (1928) 88 Ind.App. 134, 163 N.E. 536; Stockton et al. v. Yeoman et al. (1912) 179 Ind. 61, 100 N.E. 2; Hughes et al. v. Parker et al. (1897) 148 Ind. 692, 48 N.E. 243; Randolph v. City of Indianapolis et al. (1909) 172 Ind. 510, 88 N.E. 949; Brown et al. v. Porter (1871) 37 Ind. 206.

The rule as set out in the foregoing cases is no longer valid since the holding of our Supreme Court in the case of Warren v. Indiana Telephone Co. In that case, the Supreme Court stated that even when the legislature has not provided for an appeal to the Supreme Court, such right exists under constitutional authority. See Warren v. Indiana Telephone Company (1940) 217 Ind. 93, 26 N.E.2d 399; Joseph E. Seagram and...

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4 practice notes
  • Colburn v. Trustees of Indiana University, No. IP87-430-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • May 15, 1990
    ...created by a mutually explicit understandings where the parties had "incompletely addressed" the issue); Gerhardt v. City of Evansville, 408 N.E.2d 1308, 1311 (Ind.App.1980) (stating that existence of property interest is "at least in part" a question of fact, and remanding to trial court w......
  • Hardesty v. Bolerjack, No. 3-681A160
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 1982
    ...taken by the Board was within both its discretion and power, it must accordingly stand. Gerhardt v. City of Evansville (1980) Ind.App., 408 N.E.2d 1308. Appellant finally contends that the decision of the trial court is contrary to law. Appellant has wholly failed to set forth specific, cog......
  • City of Crown Point v. Knesek, No. 45S04-8611-CV-950
    • United States
    • Indiana Supreme Court of Indiana
    • November 6, 1986
    ...requires judicial review even when the legislature has failed to provide for it. Gerhardt v. City of Evansville (1980), Ind. App., 408 N.E.2d 1308. We have visited this question before. When the General Assembly reorganized the municipal government of Indianapolis, this Court was called upo......
  • Gerhardt v. City of Evansville, No. 1-799A207
    • United States
    • Indiana Court of Appeals of Indiana
    • February 4, 1981
    ...REHEARING YOUNG, Presiding Judge. The City of Evansville petitions this court to rehear our decision entered August 26, 1980, found at 408 N.E.2d 1308. They represent that we erred in our decision contravening a precedent of the Indiana Supreme Court, Dortch v. Lugar, (1971) 255 Ind. 545, 2......
4 cases
  • Colburn v. Trustees of Indiana University, No. IP87-430-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • May 15, 1990
    ...created by a mutually explicit understandings where the parties had "incompletely addressed" the issue); Gerhardt v. City of Evansville, 408 N.E.2d 1308, 1311 (Ind.App.1980) (stating that existence of property interest is "at least in part" a question of fact, and remanding to trial court w......
  • Hardesty v. Bolerjack, No. 3-681A160
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 1982
    ...taken by the Board was within both its discretion and power, it must accordingly stand. Gerhardt v. City of Evansville (1980) Ind.App., 408 N.E.2d 1308. Appellant finally contends that the decision of the trial court is contrary to law. Appellant has wholly failed to set forth specific, cog......
  • City of Crown Point v. Knesek, No. 45S04-8611-CV-950
    • United States
    • Indiana Supreme Court of Indiana
    • November 6, 1986
    ...requires judicial review even when the legislature has failed to provide for it. Gerhardt v. City of Evansville (1980), Ind. App., 408 N.E.2d 1308. We have visited this question before. When the General Assembly reorganized the municipal government of Indianapolis, this Court was called upo......
  • Gerhardt v. City of Evansville, No. 1-799A207
    • United States
    • Indiana Court of Appeals of Indiana
    • February 4, 1981
    ...REHEARING YOUNG, Presiding Judge. The City of Evansville petitions this court to rehear our decision entered August 26, 1980, found at 408 N.E.2d 1308. They represent that we erred in our decision contravening a precedent of the Indiana Supreme Court, Dortch v. Lugar, (1971) 255 Ind. 545, 2......

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