Indiana State Emp. Ass'n, Inc. v. Boehning

• Decision Date: 10 March 1975
• Docket Number: No. 73--1521,73--1521
• Citation: 511 F.2d 834
• Parties: INDIANA STATE EMPLOYEES ASSOCIATION, INC., an Indiana not-for-profit corporation, and Phyllis A. Musgrave, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Richard A. BOEHNING, Individually and as Chairman, Commissioner of the IndianaState Highway Commission, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 834

511 F.2d 834

INDIANA STATE EMPLOYEES ASSOCIATION, INC., an Indiana

not-for-profit corporation, and Phyllis A.

Musgrave, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Richard A. BOEHNING, Individually and as Chairman,

Commissioner of the IndianaState Highway

Commission, et al., Defendants-Appellees.

No. 73--1521.

United States Court of Appeals, Seventh Circuit.

Argued April 16, 1974.

Decided March 10, 1975.

Donald R. Anderson, Indianapolis, Ind., for plaintiffs-appellants.

Theodore L. Sendak, Atty. Gen., Donald P. Bogard, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and PELL and STEVENS, Circuit Judges.

FAIRCHILD, Chief Judge.

This appeal was taken from an order of the district court abstaining from decision on the merits until the Indiana courts have had an opportunity to construe certain Indiana statutes. Plaintiffs (appellants) are the Indiana State Employees Association, Inc., and Phyllis Musgrave, a discharged highway commission employee. Defendants (appellees) are members and officials of the Indiana State Highway Commission. Plaintiffs brought this action as a class action. They sought damages on account of the Musgrave discharge, a declaratory judgment, injunction and attorney's fees. They claim that plaintiff Musgrave was dismissed from state employment in violation of a federal due process right to a pretermination hearing. On appeal they argue that the district court improperly invoked the doctrine of abstention.

APPELLATE JURISDICTION

We have recently held that an abstention order like this one, though not a dismissal, is appealable as a final judgment. Drexler v. Southwest Du Bois School Corporation, 504 F.2d 836, 838 (7th Cir. 1974).

ABSTENTION

After trial, the district court held that abstention was appropriate and declined to decide the merits 'until the Indiana courts have had an opportunity to consider the applicability of and authoritatively construe the Bi-Partisan Personnel System Act (Ind.Code 8--13--1.5 (1973)) and/or the Administrative Adjudication and Court Review Act (Ind.Code 4--22--1 (1973)) in determining whether employees of the Indiana State Highway Commission have a right to a pre-discharge hearing under Indiana law.' Indiana State Employees Association, Inc. v. Boehning, 357 F.Supp. 1374, 1378 (S.D.Ind.1973). For the reasons which follow, we reverse the decision to abstain and reach the merits.

The Administrative Adjudication and Court Review Act prescribes the procedure to be followed by state agencies, including notice and an opportunity to be heard and present evidence, in the course of 'administrative adjudication.' By definition 'administrative adjudication' generally excludes 'the dismissal or discharge of an officer or employee by a superior officer' except that it includes 'hearings on discharge or dismissal of an officer or employee for cause where the law authorizes or directs such hearing.'

The Bipartisan Personnel System Act applies to the State Highway Commission. Section 5 provides that the commission shall not have more than 60% of the employees in each pay classification, as adherents to any one political party, and '(T)o meet the requirements of this section, the commission is hereby authorized Defendants point out that these statutes have not been construed by the Indiana courts, but they do not point out any area of doubtful meaning or outline an arguable construction of either or both Acts which would, as a matter of state law, entitle plaintiff to a hearing or a remedy for lack of one. If the action were brought in an Indiana court, that court would presumably address the question whether the due process clause of the Fourteenth Amendment would require a hearing, but that would be adjudication of the same claim of federal right advanced in this action, and not a resolution of any real question of state common, statutory, or constitutional law identified as such by the district court or by counsel. ¹ As we read Sec. 5 of the Act, there may well be questions of construction as to exactly how it is designed to work in particular situations, and these, of course, are state law questions, but we do not perceive, nor have counsel suggested, how the resolution of those questions would affect the question of entitlement to notice and hearing as a matter of due process.

to discharge at least twenty per cent (20%) of all employees employed under the provisions of this chapter at the beginning of each governor's administration.' It also provides in Sec. 6 that any employee may be dismissed, demoted, suspended or laid off for cause (thereafter defined). The statute does not, in terms, authorize or direct a hearing for either type of dismissal, and therefore the motion and hearing provisions of the Administrative Adjudication Act do not apply. Defendants claim justification for discharge of Ms. Musgrave only under the 'for cause' provision. She was denied a hearing.

' Abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.' Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967). Rights under the federal constitution are the proper subject of adjudication by federal courts. That jurisdiction may not be declined simply because the federal right may be asserted and vindicated in some other forum. McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1962).

Only in 'special circumstances' may the federal court abstain from deciding a properly presented federal question. One set of such circumstances may possibly exist when a state statute is alleged to be unconstitutional. The susceptibility of the statute to a clarifying construction that would alter or eliminate the constitutional question might justify abstention by the federal court. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Another such set of circumstances may exist when a claimant asserts that the defendant's act is in violation of state law as well as federal constitutional law. The necessity for ruling on the constitutional question would be avoided if a definitive ruling on the state issue would resolve the controversy. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). 'Thus our abstention cases have dealt with unresolved questions of state law which only a state tribunal could authoritatively construe.' Wisconsin v. Constantineau, 400 U.S. 433, 438, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971).

Where, as here, no such substantial question as to the applicable state law can be identified, 'abstention is equivalent The matter was fully tried before the district court decided to abstain. The facts are almost entirely stipulated. The parties have briefed and argued here the merits question whether plaintiff Musgrave had the type of interest in her employment so that her dismissal without a hearing was a denial of due process. Since there are no unresolved issues of fact relating to this question of law, we think it appropropriate to decide it here.

to an impermissible requirement of exhaustion of state remedies.' Drexler, supra, 504 F.2d p. 839. The right to a hearing under the federal constitution is the question presented in this action, and the same question would be presented if plaintiffs were required to bring an action in an Indiana court. Under these circumstances, abstention by a federal court is inappropriate. McNeese v. Board of Education, 373 U.S. 668, 674, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1962).

FACTS

Plaintiff Musgrave was hired by the Commission as stockroom clerk at the Dale Garage January 19, 1970. In February, 1973 she was notified by defendant Scheessele that her employment would be terminated. She requested a hearing, but her request was denied. Defendants claim she was fired for cause. It is stipulated that her political affiliation is not at issue and that the employee who replaced plaintiff is affiliated with the same political party as plaintiff. Defendants take the position that no hearing need be held upon the request of any employee covered by the Bipratisan Personnel System Act prior to the dismissal of such employee.

DUE PROCESS

'Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.' Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

Proof of the legitimacy of a claim of entitlement 'would obligate . . . officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.' Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972).

We conclude that the Indiana State Highway Commission Bipartisan Personnel System Act sufficiently supports a claim of entitlement to continued employment of employees in positions similar to plaintiff's. Section 6 of the Act authorizes dismissal for cause, and describes the type of conduct which constitutes cause. ² If this were the only ground for dismissal provided by the Act, there could be no question, under the modern cases, of the legitimacy of an employee's claim of entitlement to continued employment, and of his due process right to notice and an opportunity to be heard before dismissal.

Section 5 of the Act authorizes dismissal of employees on account of their political affiliation for the purpose of achieving a balance of the proportion of employees adhering to different political The...