Jenkins v. Hatcher

• Citation: 322 N.E.2d 117,163 Ind.App. 95
• Decision Date: 28 January 1975
• Docket Number: No. 3--1073A136,3--1073A136
• Parties: Albert JENKINS, Plaintiff-Appellant, v. Richard Gordon HATCHER, Individually and as Mayor of the City of Gary, Indiana, et al., Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 117

322 N.E.2d 117

163 Ind.App. 95

Albert JENKINS, Plaintiff-Appellant, v. Richard Gordon HATCHER, Individually and as Mayor of the City of Gary, Indiana, et al., Defendants-Appellees.

No. 3--1073A136.

Court of Appeals of Indiana, Third District.

Jan. 28, 1975.

Rehearing Denied March 10, 1975.

Hilbert L. Bradley, Gary, for plaintiff-appellant.

Charles A. Ruckman, Corp. Counsel, Gregory S. Reising, Asst. City Atty., Gary, for defendant-appellees.

HOFFMAN, Judge.

On July 31, 1973, the trial court, finding no genuine issue as to any material fact, granted summary judgment in favor of defendants-appellees in an action wherein plaintiff-appellant. Albert Jenkins had sought reinstatement to his former rank of battalion chief in the Gary Fire Department, damages for his allegedly improper demotion to the rank of captain and injunctive relief prohibiting the promotion of captains or other firemen acting as battalion chiefs. Whether the trial court was correct in granting summary judgment is the single issue confronting this court on appeal.

The record discloses that on January 26, 1973, Jenkins filed a complaint which alleged that his demotion from the rank of battalion chief was not carried out in compliance with the applicable statutory procedure regarding demotions. The complaint also alleged that Jenkins was promised reinstatement upon a subsequent opening and that such promise was breached.

On March 8, 1973, defendant filed an answer denying all material allegations contained in Jenkins' complaint. On March 12, 1973, defendants filed a 'Motion for Summary Judgment' contending that even if the veracity of each and every factual allegation of Jenkins' complaint were admitted no legal basis for his claim would be established. This motion was submitted on the pleadings and briefs of the parties and, on July 31, 1973, the trial court found that there existed no genuine issue as to any material fact and granted summary judgment in favor of defendants-appellees. Subsequently, a motion to correct errors filed by Jenkins was overruled and the present appeal was perfected.

The briefs of the parties indicate disagreement as to the nature of the motion filed by defendants on March 12, 1973, the judgment entered by the trial court and the standard of review to be applied. Jenkins asserts that defendants' motion, although denominated a 'Motion for Summary Judgment', was actually a motion to dismiss for failure to state a claim upon which relief can be granted under Ind.Rules of Procedure, Trial Rule 12(B)(6). He contends that the decision of the trial court was incorrect unless it is clear from the complaint that under no set of facts could relief be granted. Defendants-appellees contend that theirs was a motion for summary judgment and by reason of the fact that all facts alleged by Jenkins were admitted there existed no genuine issue of material fact.

Defendants' motion for summary judgment was not accompanied by supporting affidavits or documents other than the pleadings. When it is so made, it is functionally the same as a motion for judgment on the pleadings under Ind.Rules of Procedure, Trial Rule 12(C). See: 1 Harvey, Ind.Prac.--Rules of Civ.Proc., 602.

In their motion for summary judgment, defendants admitted all facts alleged by Jenkins and confined themselves to a discussion of whether such facts entitle Jenkins to relief, thus indicating that the motion was intended as a motion for judgment on the pleadings.

We next turn to an examination of Jenkins' complaint in order to determine whether, as a matter of law, he is precluded from relief.

Jenkins asserts that he was entitled to relief for a violation of statutory procedures relating to removal and demotion of firemen. Specifically, his factual allegations reveal that his demotion from the rank of battalion chief to captain was not attended by written notice, opportunity for hearing and a written statement of reasons for the action taken. He contends that failure to follow the above procedures violated IC 1971, 18--1--11--3, Ind.Ann.Stat. § 48--6105 (Burns Supp.1974), which provides, in pertinent part, as follows:

'Every member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board. They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual palce of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board. * * *.' (Emphasis supplied.)

The procedures outlined in IC 1971, 18--1--11--3, supra, cannot, however, be deemed applicable to Jenkins' demotion. By its relevant terms, the statute in question applies only to 'removal.' We do not agree with appellant that the term 'removal' comprehends demotion.

We first note that IC 1971, 18--1--11--3, supra, further provides:

'Any member of such fire or police force who is dismissed from such force, as aforesaid, or is suspended therefrom for any period in excess of ten (10) days, ¹ shall have the right to appeal * * * but shall not have the right of appeal from any other decision.'

While this provision would not prevent judicial review of a denial of appellant's rights, see e.g., Dortch v. Lugar (1971), 255 Ind. 545, 266 N.E.2d 25; Mann v. City of Terre Haute et al. (1960), 240 Ind. 245, 163 N.E.2d 577, it nevertheless indicates a legislative intent to limit applicability of the statutory hearing procedures.

Furthermore, since the adoption of this statute, several specific 'merit plan' Acts have been adopted regarding policemen and/or firemen. IC 1971, 19--1--7--1 et seq., Ind.Ann.Stat. § 48--6204 et seq. (Burns 1963 and Burns Supp.1974), relating to first class cities, and applicable to both firemen and policemen, provides specific demotion procedures and establishes different procedures to be applicable to the demotion of high ranking officers. The Act expressly provides that it does not 'confer any power to remove and dismiss any such person from service upon the force', and that it is supplemental to other Acts. ²

IC 1971, 19--1--21--1 et seq., Ind.Ann.Stat. § 48--6241 et seq. (Burns 1963 and Burns Supp.1974), applicable to certain cities of the second class expressly provide demotion procedures, but exempt the rank of chief. See also: IC 1971, 19--1--29--1 et seq., Ind.Ann.Stat. § 48--6250 et seq. (Burns 1963 and Burns Supp.1974); IC 1971, 19--1--14--1 et seq., Ind.Ann.Stat. § 48--6260 et seq. (Burns 1963 and Burns Supp.1974); IC 1971, 19--1--20--1 et seq., Ind.Ann.Stat. § 48--6286 et seq. (Burns Supp.1974); IC 1971, 19--1--14.5--1 et seq., Ind.Ann.Stat. § 48--6287 et seq. (Burns Supp.1974).

The consistent thread running through these statutes is that they expressly provide general demotion procedures and they expressly exclude from those procedures certain ranks or offices. Yet, if IC 1971, 18--1--11--3, supra, were to apply to demotions, it would necessarily apply to all demotions and would require board of works hearings that would render superfluous much of the procedure in the merit plan statutes.

We also note that IC 1971, 18--1--11--3, supra, has been in force in substantially its present form since 1905. During that span, only one case expressly considered this statute in connection with a demotion. In Coleman v. City of Gary (1942), 220 Ind. 446, 44 N.E.2d 101, our Supreme Court held that a Gary policeman adequately stated a cause of action in asserting that he had been demoted from the rank of sergeant without cause. Although the court had the statute before it and discussed it in the opinion, it chose to base its decision not upon this Act but upon rules of procedure that had been adopted by the city pursuant to the Civil Service Commission Act applicable to Gary.

Acts 1969, ch. 488, establishes a different procedure to be followed in disciplinary action taken against firemen or other civil service employees in cities which qualify. This act specifically refers to demotion and would appear to be controlling in the case of appellant-Jenkins' demotion. However, Acts 1969, ch. 488, supra, was not in effect on August 18, 1970, the date Jenkins was demoted. The Act in question weas vetoed by the Governor on March 15, 1969, and was passed by the Legislature over such veto on January 22, 1971. Subsequently, Acts 1972, P.L. 4, which was approved on January 21, 1972, specifically repealed Acts 1969, ch. 488, supra, as amended. The provisions of Acts 1972, P.L. 4, may be found at IC 1971, 19--1--37.5--1 to 19--1--37.5--23, Ind.Ann.Stat. §§ 48--6249a to 48--6249x (Burns Supp.1974). In short, no Act regarding specific procedures to be followed in cases of demotion of civil service of fire department personnel in the City of Gary was in effect on August 18, 1970, the critical date in question. The Legislature, by subsequently providing specific procedures for demotion, demonstrated that IC 1971, 18--1--11--3, supra, was not intended to embrace demotions.

Appellant's asserted claim with regard to breach of employment contract is dependent for its vitality upon the applicability of either IC 1971, 18--1--11--3, supra, or Acts 1969, ch. 488, supra. Such claim is vitiated by the above determination. The assertion that the admitted facts indicating a mere promise to reinstate upon a subsequent opening does not entitle Jenkins to relief as matter of law and does not merit further discussion.

No reversible error having been shown, the judgment of the trial court is affirmed.

Affirmed.

GARRARD, J., concurs.

STATON, P.J., dissents with opinion.

STATON, Presiding Judge (dissenting).

I respectfully dissent from the views expressed...