Heminger v. Police Commission of City of Fort Wayne

• Citation: 314 N.E.2d 827,161 Ind.App. 72,43 Ind.Dec. 122
• Decision Date: 29 July 1974
• Docket Number: No. 3--473A45,3--473A45
• Parties: Thomas HEMINGER et al., Plaintiffs-Appellants, v. The POLICE COMMISSION OF the CITY OF FORT WAYNE, Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 827

314 N.E.2d 827

161 Ind.App. 72

Thomas HEMINGER et al., Plaintiffs-Appellants, v. The POLICE COMMISSION OF the CITY OF FORT WAYNE, Defendants-Appellees.

No. 3--473A45.

Court of Appeals of Indiana, Third District.

July 29, 1974.

J. Byron Hayes, Marvin S. Crell, G. Stanley Hood, Tourkow, Danehy & Crell, Fort Wayne, for appellants.

William F. McNagny, James M. Prickett, Barrett, Barrett & McNagny, Roy S. Dale, Fort Wayne, for appellees.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, Patricia J. Gifford, Deputy Attys. Gen., Indianapolis, for State.

HOFFMAN, Chief Judge.

On May 25, 1972, appellants, members of the Police Department of the City of Fort Wayne, Indiana, filed a complaint in the Allen Circuit Court seeking a temporary restraining order without notice, temporary and permanent injunctions and a declaratory judgment to enjoin the implementation of IC 1971, 19--1--20--1 et seq., Ind.Ann.Stat. § 48--6286 et seq. (Burns' Supp.1973), by appellees herein, the Police Commission of the City of Fort Wayne (Commission), and to determine the respective rights, duties and obligations of all parties.

The statutes in question provide, among other things, for the appointment of a five-member Police Commission in second class cities coming within particular population requirements. The Commission is authorized, under certain guidelines, to establish rules and regulations affecting the rating and promotion of all policemen below the rank of Captain. In short, the statutes constitute the basic framework of a police merit system.

Appellants' complaint challenged, in several respects, the constitutionality of IC 1971, 19--1--20--1 et seq., supra, and further alleged that Commission had acted arbitrarily and capriciously in adopting particular rules and regulations controlling the implementation of the statutes.

On May 25, 1972, the trial court ordered that appellees be temporarily restrained from implementing IC 1971, 19--1--20--1 et seq., supra, and on June 16, 1972, the question of the granting of the temporary injunction was tried to the court. On November 22, 1972, the trial court found for appellees, thereby dissolving the temporary injunction. Thereafter, on January 17, 1973, the trial court, on its own motion, denied appellants' motion for a permanent injunction. On the same day, appellants filed their motion to correct errors. Such motion was subsequently overruled on February 8, 1973, and appellants thereupon filed a motion for stay of proceedings pending the outcome of this appeal. Also, on February 8, 1973, the trial court issued the requested stay and the instant appeal followed.

Appellants' argument on appeal is predicated upon two general points alternatively. They first contend that certain of the statutory provisions in question are unconstitutional as applied to them. Secondly, it is asserted that Commission, given the power to implement the merit system, acted in an arbitrary and capricious manner.

I.

The first issue to be considered is whether IC 1971, 19--1--20--4, Ind.Ann.Stat. § 48--6286c (Burns' Supp.1973), which provides, in part, that seniority rights shall be valued as 40% of the promotion ratings for the first two years following the effective date of the statute is violative of equal protection guarantees. ¹

Appellant contend that the seniority provision of IC 1971, 19--1--20--4, supra, discriminates against those members of the police department, such as themselves, who have served for less than a ten-year period. It is also asserted that the provision in question is completely arbitrary and bears no relation to the purpose for which the classification is drawn.

It must be noted at the outset that when a party questions the constitutionality of a statute or an action of the Legislature, he assumes the burden of overcoming a strong presumption favoring the constitutionality of such statute or action. Roeschlein v. Thomas (1972), Ind., 280 N.E.2d 581.

Concededly, appellants do not purport to come within the reach of a classification currently considered to possess an inherently suspect quality; nor do they contend that the classification in question impinges upon a fundamental right. As a consequence, defendants-appellees are not required to demonstrate a compelling State interest or a necessary relationship between the classification and such interest.

Sturrup v. Mahan (1974), Ind., 305 N.E.2d 877. See also: Frontiero v. Richardson (1973), 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583.

Accordingly, we are not enjoined to apply the analysis mandated by the concomitant stricter standard of review. See Decatur Cty. R.E. Mem. Corp. v. Public Serv. Co. of Ind. (1973), Ind. 301 N.E.2d 191; State ex rel. Miller v. McDonald (1973), Ind., 297 N.E.2d 826.

Under the 'traditional' standard which must be applied in the instant case the validity of legislation is presumed despite the fact that in operation statutory provisions may give rise to some inequality. See: San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. Moreover, it has been stated that, '(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. State of Maryland (1961), 366 U.S. 420 at 426, 81 S.Ct. 1101, at 1105, 6 L.Ed.2d 393, at 399; Prog. Imp. Assoc. v. Catch All Corp. (1970), 254 Ind. 121, 258 N.E.2d 403. Cf: Castro v. Beecher (1st Cir. 1972), 459 F.2d 725.

Although the Equal Protection Clause does not deny to the States the power to treat different classes of persons in different ways, McDonald v. Board of Election (1969), 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739; Railway Express v. New York (1949), 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533, it does, however, preclude the States from enacting legislation which accords dissmilar treatment to persons placed by statute into separate classes on the basis of criteria which bear no relation to the purpose or objective of the statute. Reed v. Reed (1971), 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. Further, in Royster Guano Co. v. Virginia (1920), 253 U.S. 412, at 415, 40 S.Ct. 560, at 561, 64 L.Ed. 989, at 990--991, it is stated that,

'(T)he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'

The present case involves a classification of individuals on the basis of seniority. Such classification applies to members of the police departments in cities qualifying under IC 1971, 19--1--20--1, supra, and, under the provisions of IC 1971, 19--1--20--4, supra, is a factor initially comprising 40% of the rating used to determine the eligibility of such individuals for promotion. The question presented with regard to equal protection then, is whether the distinction effectuated through the application of the 40% seniority factor bears a rational relationship to a State objective that is sought to be promoted by the operation of IC 1971, 19--1--20--1 et seq., supra.

The statutes in question exhibit a legislative intent to avoid the effect of personal and political influence upon police promotions. In more general terms, the enactment of the statutes can be considered to stem from a desire on the part of the Legislature to supplant the uncertainty of subjective evaluation with a more systematic scheme under which eligibility for promotion is determined largely on the basis of objective criteria. In order to realize this objective, the Legislature has formulated and provided for the orderly implementation of a merit system which places emphasis upon individual experience and ability.

While any system which attempts to distinguish among personnel on the basis of pre-determined factors cannot be regarded as a panacea, such a method is superior to one which is subject to the potential of personal and political influence. The existence of competition for a desired benefit naturally portends that lines will be drawn and distinctions made. It is perhaps a hallmark of a system based upon merit that these lines and distinctions are not secreted in the minds of a handful of men but are held out for all to see, to derive motivation from and, in some instances, to challenge and improve.

Seniority often tends to divorce promotion from ability. See: Developments in the Law--Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1155--1157 (1971). While this appraisal would, on its face, indicate a lack of relevance between merit and seniority, it does not, however, do violence to the proposition that seniority, per se is reasonably related to the purpose underlying the statutory provisions in the instant case. For, as previously noted, the legislative objective with which we are here concerned comprehends considerably more than a mere effort to prescribe promotion criteria. Indeed, the statutes evidence a broad plan of reform designed to facilitate efficiency of personnel evaluation, provide motivation and incentive to employees and ensure an orderly transition from the old system to the new.

Seniority, in general, has been justified on the grounds that it provides an objective standard of eligibility; gives employees a degree of independence from the personal whims and preferences of their superiors; and affords employees a basis for predicting their future. See: Cooper & Sobel, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1604--1607 (1969). That the criterion has these effects, demonstrates its relevance and utility with regard to the purpose of the legislation. In effect, seniority constitutes an integral part of the overall scheme adopted by IC 1971, 19--1--20--1 et seq., supra, and could not be excised from the formula without...