Jandura v. Town Of Schererville, Cause No. 45D10-0709-PL-146
| Decision Date | 24 September 2010 |
| Docket Number | Cause No. 45D10-0709-PL-146 |
| Parties | RICHARD JANDURA, Appellant-Plaintiff, v. TOWN OF SCHERERVILLE, Appellee-Defendant. No. 45A04-1005-PL-308 |
| Court | Indiana Appellate Court |
ATTORNEY FOR APPELLANT: STEPHEN BOWER Thiros and Stracci Merrillville, Indiana
ATTORNEYS FOR APPELLEE: DAVID M. AUSTGEN TIMOTHY R. KUIPER MICHAEL J. JASAITIS Austgen Kuiper & Associates, P.C. Crown Point, Indiana
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable John R. Pera, Judge
Richard Jandura appeals the trial court's entry of judgment against him and in favor of the Town of Schererville ("the Town"). We affirm.
Jandura raises several issues, which we combine and restate as whether discipline imposed against him by the Town's Board of Police Commissioners ("the Board") was improperly politically motivated.
Jandura is an officer with the Schererville Police Department ("the Department"). On March 1, 2007, Jandura was off-duty but driving a take-home Department police car to the station when a call went out over the emergency radio regarding a non-breathing child. Rules and regulations of the Department require anyone driving a take-home car to radio in after receiving an emergency report, even when off-duty, and to report to the emergency if nearby. Jandura did not radio in, even though he was very close to the child's residence. Instead, he drove past the residence and, in fact, passed two other Department officers who were heading in the opposite direction to the scene. When Jandura arrived at the station, he told another officer that he had "kept right on going" by the scene and accompanied that statement with a motion imitating a first-down call by a football referee. Appellee's App. p. 3. The child subsequently died.1
On June 5, 2007, David Dowling, the Department Chief of Police, filed formal disciplinary charges against Jandura with the Board. The charges alleged that Jandura had neglected his duties and that he had engaged in conduct unbecoming an officer. On June 19, 2007, Jandura moved to disqualify three of the Board members from hearing the disciplinary action. The reason for this request was that Jandura, as president of the political action committee ("PAC") for the Schererville Fraternal Order of Police ("FOP"), had decided to support the primary campaign of Tony Myszak for a seat on the Town Council. This support included delivering a check to a local newspaper to run a full-page ad for Myszak. Mysazk's opponent was incumbent Rob Guetzloff. Three members of the Board had made monetary contributions to Guetzloff's campaign, as had the Board's attorney. Chief Dowling also financially supported Guetzloff, who ended up winning the primary against Myszak.2 Jandura contended that the Board members who had contributed to Guetzloff's campaign could not be neutral and unbiased because of his support for Myszak. None of the Board members disqualified themselves from considering Jandura's case.
On August 14, 2007, the Board found that Jandura had neglected his duties by failing to respond to the emergency call, but that he had not engaged in conduct unbecoming an officer. Although Chief Dowling had recommended Jandura's outright termination, the Board instead decided to suspend Jandura from duty without pay for ninety days. All five members of the Board voted to impose this discipline.
On September 5, 2007, Jandura filed a four-count complaint with the trial court. The first count alleged that Jandura's discipline was prompted by political motives, in violation of Indiana law; the second count sought judicial review of the Board's decision and alleged that the Board's disciplinary action was arbitrary and capricious; the third count alleged that Jandura's First Amendment rights had been violated by the discipline; the fourth count alleged that Chief Dowling had publicly defamed him. On November 16, 2009, the trial court entered an order seeming to resolve counts one and two of the complaint, effectively denying Jandura's petition for judicial review and affirming the discipline.3 The Town subsequently moved for summary judgment on the remaining counts of the complaint. On April 22, 2010, the trial court granted summary judgment in the Town's favor on those counts. Jandura now appeals.
The standard of review to apply in this case is somewhat complicated by the nature of the complaint Jandura filed. As noted, Jandura filed a four-count complaint. The first two counts, alleging a "political firing" and an arbitrary and capricious disciplinary decision, cited as their basis the judicial review procedures of Indiana Code Section 36-8-3-4. The third and fourth counts alleged First Amendment violations and defamation. As noted, the trial court apparently resolved the first two counts of the complaint on November 16, 2009, and resolved the other two counts via summary judgment on April 22, 2010. On appeal, Jandura appears to have abandoned any First Amendment and/or defamation claims, as he develops no cogent argument regarding them. Given the arguments Jandura has raised, we will treat this appeal solely as one arising out of the denial of Jandura's petition for judicial review under counts one and two of the complaint and will not address the trial court's grant of summary judgment as to the other two counts.
The Town implies that Jandura's appeal as to the trial court's resolution of counts one and two of the complaint is untimely because he did not file a notice of appeal within thirty days of the November 16, 2009 order. We observe, however, that that order was not a final appealable judgment because it did not resolve the other two counts of the complaint. Indiana Trial Rule 54(B) states in part:
A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.·
The November 16, 2009 order did not contain the "magic language" that would have converted it into a final, appealable order. Jandura's notice of appeal filed within thirty days of the April 22, 2010 grant of summary judgment, which finally disposed of the case in its entirety, was timely and sufficient to bring a challenge to the November 16, 2009 order as well. See Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind. 2003) ().
Turning to the merits of the appeal, Indiana Code Section 36-8-3-4 provides the mechanism for the discipline of police officers by a municipal safety board or board of police commissioners. The statute states in part:
Ind. Code § 36-8-3-4(b). Judicial appeals of a safety board's disciplinary action may be brought pursuant to subsections (e) through (l) of the statute.
Judicial review of an administrative disciplinary action under Section 36-8-3-4 is limited to determining whether the board of police commissioners possessed jurisdiction of the subject matter, and whether the board's decision was made pursuant to proper procedures, was based upon substantial evidence, was arbitrary or capricious, and was in violation of any constitutional, statutory, or legal principle. Rynerson v. City of Franklin, 669 N.E.2d 964, 971 (Ind. 1996). A court reviewing a police officer disciplinary action may not judge witness credibility or weigh conflicting evidence in determining whether there was substantial evidence to support the action. Id. Courts must review the record as a whole to determine whether the administrative finding that an officer neglected his or her duties is supported by substantial evidence. Id.
In his opening brief, Jandura completely fails to acknowledge that, during his disciplinary hearing before the Board, he admitted violating rules and regulations of the Department when he did not respond to the emergency call while driving a take-homecar. Jandura further admitted that this neglect of his duties warranted some kind of discipline short of his termination.4 In fact, the Board ended up rejecting Chief Dowling's recommendation that Jandura be terminated and instead imposed a ninety-day suspension. To the extent Jandura seems to now be arguing that he should not...
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