Indiana Civil Rights Com'n v. City of Muncie, 2-1082A350

• Decision Date: 08 February 1984
• Docket Number: No. 2-1082A350,2-1082A350
• Citation: 459 N.E.2d 411
• Parties: INDIANA CIVIL RIGHTS COMMISSION, Appellant (Defendant Below), v. CITY OF MUNCIE, Muncie Police Pension Board, Cordell Campbell, Jack E. Turner, Donald R. Scroggins, Larry McCaffrey, Muncie City Police Department and Harold B. Duke, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 411

459 N.E.2d 411

INDIANA CIVIL RIGHTS COMMISSION, Appellant (Defendant Below), v. CITY OF MUNCIE, Muncie Police Pension Board, Cordell Campbell, Jack E. Turner, Donald R. Scroggins Larry McCaffrey, Muncie City Police Department and Harold B. Duke Appellees (Plaintiffs Below).

No. 2-1082A350.

Court of Appeals of Indiana Third District.

Feb. 8, 1984.

Linley E. Pearson, Atty. Gen., Frederick S. Bremer, Deputy Atty. Gen., Indianapolis, for appellant.

Thomas L. DeWeese, Asst. City Atty., Muncie, for appellees.

HOFFMAN, Judge.

Milton Smith, a black, was employed by the City of Muncie as a special police officer. In seeking to secure a permanent position as a regular police officer, Smith was required to apply for membership in the Muncie Police Pension Fund. On September 4, 1973, the Pension Board denied Smith's application for admission. The Indiana Civil Rights Commission (ICRC) made a determination that Smith had been discriminated against based on race, and the Pension Board appealed to the Delaware Superior Court. The trial court reversed and entered findings of no discrimination. ICRC now appeals that decision.

ICRC argues inter alia that the Delaware Superior Court was without jurisdiction to review its determination for failure to meet the specific requirements of IND.CODE Sec. 4-22-1-14. This provision states in part that:

"4-22-1-14 Petition for review

Sec. 14. Any party or person aggrieved by an order or determination made by any such agency shall be entitled to a judicial review thereof in accordance with the provisions of this act. Such review may be had by filing with the circuit or superior court of the county in which such person resides, or in any county in which such order or determination is to be carried out or enforced, a verified petition setting out such order, decision or determination so made by said agency, and alleging specifically wherein said order, decision or determination is:

(1) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or

(2) Contrary to constitutional right, power, privilege or immunity; or

(3) In excess of statutory jurisdiction, authority or limitations, or short of statutory right; or

(4) Without observance of procedure required by law; or

(5) Unsupported by substantial evidence.

"Said petition for review shall be filed within fifteen (15) days after receipt of notice that such order, decision or determination is made by any such agency. Notice shall be given in the manner prescribed by section 6 of this act. Unless a proceeding for review is commenced by so filing such petition within fifteen (15) days any and all rights of judicial review and all rights of recourse to the courts shall terminate."

In judicial review of an administrative determination, compliance with the requirements of this section is a condition precedent to jurisdiction. Personnel Board v. Parkman, (1969) 252 Ind. 44, 245 N.E.2d 153; White v. Bd. of Med. Regis. and Exam. (1956) 235 Ind. 572, 134 N.E.2d 556; Ind. Civil Rights Comm. v. Int'l. Union, (1979) 179 Ind.App. 407, 385 N.E.2d 1176; Gleason v. Real Estate Comm., (1973) 157 Ind.App. 344, 300 N.E.2d 116.

ICRC now attacks the jurisdiction of the Delaware Superior Court on several different grounds. First, ICRC alleges that the Pension Board's petition for review to the superior court and petition to introduce newly discovered evidence to ICRC were not properly verified under Ind.Rules of Procedure, Trial Rule 11(B). This rule provides as follows:

"(B) Verification by affirmation or representation. When in connection with any civil or special statutory proceeding it is required that any pleading, motion, petition, supporting affidavit, or other document of any kind, be verified, or that an oath be taken, it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following langauge:

'I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.

(Signed) ________________'

Any person who falsifies an affirmation or representation of fact shall be subject to the same penalties as are prescribed by law for the making of a false affidavit."

The Supreme Court of Indiana has held that " '[v]erification ... includes both the actual swearing to the truth of the statements by the subscriber and also the certification thereto by the notary or other officer authorized by law to administer oaths.' " State ex rel. Hodges v. Kosciusko Circuit, (1980) Ind., 402 N.E.2d 1231, at 1233; Gossard v. Vawter, (1939) 215 Ind. 581, at 584-586, 21 N.E.2d 416, at 417.

In Bader v. State, (1911) 176 Ind. 268, at 274, 94 N.E. 1009, 1011-1012, the Supreme Court defined verification as:

" 'the certificate that the writing is true.' 2 Bouvier's Law Dict. (15th ed.) 781.

"Black's Law Dict. (2d ed.) 205 says: ... Verification is defined as a 'confirmation of the correctness, truth, or authenticity of a pleading, account or other paper, by an affidavit, oath, or deposition.' Black's Law Dict. (2d ed.) 1203.

" 'In 8 Words and Phrases 7296 it is said: "The term 'verified,' as applied to pleadings and statements of claims filed with municipal officers, has a settled meaning, and refers to an affidavit attached to such a statement of claim, as to the truth of the matter set forth." '

"In the case of Patterson v. City of Brooklyn (1896), 6 App.Div. 127, 128, 40 N.Y.S. 581, the action related to a claim filed with the controller of the city of Brooklyn, which claim, under the law, was required to be verified. The court said: 'The term "verified," as applied to pleadings and statements of this character, has a settled meaning in our statutory law, and it refers to an affidavit attached to the statement as to the truth of the matters therein set forth.'

"In the case of State v. Trook (1909), 172 Ind. 558, 560, , the word 'verify' is defined as follows: 'The primary definition of the verb "verify," when used in matters of law, as given in the Standard Dictionary, is: "To affirm under oath; confirm by formal oath; as, to verify pleadings in an action; to verify accounts, etc." ' "

ICRC contends that appellees' verified petition fails to properly assert the truth of the matters attested to under oath. The relevant parts of the superior court petition appear as follows:

"Comes now Alan K. Wilson, Mayor of the City of Muncie, who swears as he is informed and verily believes:

* * * * * *

                                                   [signed]
                                                   ---------------------------------
                                                   Alan K. Wilson, Mayor
                                                   City of Muncie, Indiana
                "Subscribed and sworn to before me this 2nd day of December, 1980.
                My Commission Expires:             [signed]
                                                   ---------------------------------
                                                   Thomas L. DeWeese, Notary
                January 12, 1984                   Public Residing in Delaware
                                                   County, IN."
                

The language of T.R. 11(B) requires an affiant to represent that statements made in a verified pleading or notice are true. Hodges, supra; Aetna Glass Corp. v. Mercury Builders, Inc., (1969) 145 Ind.App. 286, 250 N.E.2d 598. Concerning whether verification must be positive, affirming the absolute truth of the matter concerned or whether verification on information and belief is sufficient, it has long been held that:

"No statement can go beyond the belief of the party making it. That belief may arise from personal observation, from sight or from sound, from information derived from others, or as the result of a logical conclusion from other known facts. But we know that sight or sound may deceive, as information derived from other persons may mislead. They can, at most, when united, produce but one result, conviction of the mind, or in other words, belief. When, therefore, one states his belief in the truth of a statement, the assertion is as strong as language can make it." (Emphasis added.) Curry v. Baker, Governor, (1869) 31 Ind. 151, at 155-156; Workman v. Workman, (1943) 113 Ind.App. 245, at 264, 46 N.E.2d 718, at 725.

The verification in this petition substantially complies with T.R. 11(B) and the cases cited. The affiant affirmed (swore) under oath, based on information he believed to be true (verily believes), the requisite information for the trial court to take jurisdiction under IND.CODE Sec. 4-22-1-14. This petition was executed before a notary public, and implicitly subjected the affiant to penalties for perjury.

Appellees' petition to introduce newly discovered evidence to ICRC was not properly verified. The relevant portions appear as follows:

"Come now the respondents, by Alan K. Wilson, Mayor of the City of Muncie, who being first duly sworn alleges as follows:

* * *

* * *

"Subscribed and sworn to before me this 2nd day of December, 1980.

                My Commission Expires:  [signed]
                                        ------------------------
                                        Thomas L. DeWeese,
                January 12, 1984        Notary Public Residing
                                        in Delaware County, IN."
                

This petition fails for the same reasons stated in Hodges, supra, 402 N.E.2d 1231, at 1232:

"The petition in the instant case was not verified. While petitioners swore that they made certain statements, they did not swear that the statements they made were true."

ICRC was therefore correct in denying appellees' petition to introduce new evidence. Nevertheless, the trial court legally assumed jurisdiction based on appellees' properly verified petition of December 2, 1980.

ICRC next contends that the trial court lacked jurisdiction for failure to join Milton Smith, the original complainant, as a party to the review proceedings. ICRC maintains that Smith was an indispensable party under Ind.Rules of Procedure, Trial Rule 19(A)(2)(a). This rule provides that:

"(A) Persons to...