Homoky v. City of Hobart
| Decision Date | 28 July 2017 |
| Docket Number | Court of Appeals Case No. 45A03-1609-MI-2052 |
| Citation | 87 N.E.3d 62 (Table) |
| Parties | Kirk HOMOKY, Appellant-Defendant, v. CITY OF HOBART, Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant : Christopher Cooper, Chicago, Illinois
Attorney for Appellee : Adam J. Mindel, Hobart, Indiana
[1] Kirk Homoky appeals from the trial court's order affirming the decision of the Hobart Board of Public Works and Safety (the Board) to terminate Homoky's employment as an officer of the Hobart Police Department (HPD). Homoky raises numerous issues on appeal, which we consolidate and restate as the following two:
[2] We affirm.
[3] While working as an HPD officer in 2012, Homoky used the Indiana Data and Communication System (IDACS), a police database which accesses national and statewide criminal history and Bureau of Motor Vehicle information, to run numerous inquiries on his estranged wife, Mattie Homoky n/k/a Robbins (Mattie), and individuals with whom Mattie was associating. Homoky told Mattie on several occasions that he had been running her name as well as the license plates of cars parked in front of her home. Homoky also told Mattie that he had run IDACS inquiries on Phillip Crowder, a man Mattie was dating, and Homoky told her about Crowder's criminal history. Both Mattie and Crowder made complaints about Homoky's behavior to the HPD.
[4] On November 28, 2012, Detective Jeremy Ogden spoke to Dan Barton, the manager of Stardust Bowl II, where Homoky had previously worked a side job as a security officer from 2008 until 2010. Barton told Detective Ogden that in early 2010, Homoky had been inadvertently issued several paychecks to which he was not entitled and that those paychecks had been cashed. Barton stated that he had called Homoky and left a voicemail, but Homoky did not return his call. Another investigator spoke to Mattie, who stated that Homoky knew the checks had been issued in error but nevertheless allowed the checks to be deposited into their joint account. Mattie stated that Homoky signed three of the checks himself and she signed the remaining four on his behalf and with his permission.
[5] As a result of an internal investigation, a notice of discipline was filed against Homoky and subsequently amended. The amended notice alleged three violations. Count I alleged that Homoky had used IDACS for non-law enforcement purposes by running Mattie's and Crowder's names and the license plates of vehicles parked in front of Mattie's home. Count III2 alleged that Homoky had allowed the checks from Stardust Bowl to be deposited into his joint bank account with knowledge that he was not entitled to those funds. The notice alleged that Homoky's conduct violated various HPD Rules and Regulations and constituted grounds for discipline under I.C. § 36-8-3-4(b)(2)(B), (F), (G), and (H). The notice indicated that HPD Chief of Police Richard Zormier sought Homoky's dismissal from the HPD as discipline for the alleged violations.
[6] Homoky requested a hearing, and after protracted pretrial proceedings and exhaustive discovery, a four-day evidentiary hearing was held before the Board. On October 7, 2015, the Board unanimously voted to find Homoky guilty of the violations alleged in Counts I and III and to terminate his employment with the HPD. Homoky filed a petition for judicial review on October 19, 2015. Meanwhile, at its next regularly scheduled meeting on October 21, 2015, the Board voted unanimously to approve its written Findings, Conclusions, and Decision regarding the termination of Homoky's employment. Following oral argument, the trial court issued its order affirming the Board's findings, conclusions, and decision on August 10, 2016. Homoky now appeals.
[7] Our review of administrative decisions is very limited. Winters v. City of Evansville, 29 N.E.3d 773, 778 (Ind. Ct. App. 2015), trans. denied.
Deference is to be given by the reviewing court to the expertise of the administrative body. Discretionary decisions of administrative bodies, including those of police merit commissions, are entitled to deference absent a showing that the decision was arbitrary and capricious, or an abuse of discretion, or otherwise not in accordance with law. Further, review is limited to determining whether the administrative body adhered to proper legal procedure and made a finding based upon substantial evidence in accordance with appropriate constitutional and statutory provisions.... Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion.
Id. When determining whether a police officer disciplinary action was based on substantial evidence, a reviewing court may not judge the credibility of witnesses or weigh conflicting evidence. Id. at 778-79.
[8] Before turning to the merits of this appeal, we note that there are numerous deficiencies in Homoky's appellate briefing.3 We first note that Homoky's Statement of the Issues does not correspond to the issues presented in the body of his brief. Indeed, one of the issues set forth in the Statement of the Issues—whether the Board erred in placing Homoky on unpaid administrative leave prior to his termination—is never discussed at all in his brief. See Ind. Appellate Rule 46(A)(4) (). Homoky's Statement of the Facts contains virtually no substantive facts and instead is devoted to providing a recitation of procedural history better suited for the Statement of Case section of the brief. See Ind. App. R. 46(A)(5) (); Ind. App. R. 46(A)(6) (). The Summary of the Argument Section is certainly not a "succinct, clear, and accurate statement of the arguments made in the body of the brief." See Ind. App. R. 46(A)(7). Rather, it consists largely of factual allegations not set forth in the Statement of Facts. To make matters worse, most of the "facts" set forth in the Summary of the Argument section are not supported by citation to the record, are irrelevant and often inflammatory, and/or not stated in accordance with the appropriate standard of review.
[9] The errors that have most hampered our appellate review, however, appear in the Argument section of Homoky's brief. In this section, Homoky's counsel continues to disregard the standard of review by relying upon evidence not favorable to the judgment and arguing that certain testimony is not worthy of credit. Homoky's counsel also fails to cite legal authority in support of many of his arguments, and some of the authority he does cite is inapposite.4 Additionally, throughout his brief, Homoky's counsel has not cited to the volumes and pages of his Appendix as required by our appellate rules. See Ind. App. R. 22(C) (). See also Ind. App. R. 46(A)(5), (6), (8) (providing that citations to the record must be made in accordance with Ind. App. R. 22(C) ). Rather, where Homoky's counsel has provided citation to the record, he has cited to each item in the Appendix by its specific title or an abbreviation thereof and the page numbers of the individual document.5 This has made review of Homoky's arguments unnecessarily cumbersome, particularly because Homoky has submitted a ten-volume Appendix and a six-volume Supplemental Appendix. Homoky's counsel has also cited to materials we have been unable to locate6 and he repeatedly mischaracterizes items appearing in his Appendix.7
[10] Many of the errors in Homoky's Appellant's Brief are repeated and compounded in his Reply Brief. Specifically, the only citations to authority in Homoky's Reply Brief appear in a quote from the Appellees' Brief and in Homoky's prayer for relief. Further, Homoky spends much of his Reply Brief discussing evidence that is irrelevant and/or unfavorable to the judgment. For example, Homoky discusses at length the alleged misconduct of other HPD officers and the evidence presented concerning Count II, which the Board found had not been proven by a preponderance of the evidence.8
[11] "It is incumbent on appellate counsel to accurately represent the record and to provide cogent argument supported with adequate citation to authority." K.S. v. D.S., 64 N.E.3d 1209, 1218 (Ind. Ct. App. 2016). Furthermore, an appellate brief "should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues." Id.(quoting Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) ). Far from being helpful, Homoky's briefing in this case has made our review of his claims unduly burdensome and time-consuming. We have nevertheless endeavored to address Homoky's arguments to the extent his deficient briefing allows. However, to the extent we have not addressed any specific argument set forth in Homoky's brief, it is because we have found such argument to be waived for failure to make a cogent argument. See Countrywide Home Loans, Inc. v. Holland, 993 N.E.2d 184, 186 n.2 (Ind. Ct. App. 2013) ; Ind. App. R. 46(A)(8)(a).
[12] Homoky claims that a...
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