Kellogg v. City of Gary

Citation562 N.E.2d 685
Decision Date08 November 1990
Docket NumberNo. 45S03-9011-CV-710,45S03-9011-CV-710
PartiesDemuth KELLOGG, John W. Richardson, Hervey Burnett, and Mary Wilusz, et al., Petitioners (Appellees/Plaintiffs below), v. CITY OF GARY, Richard G. Hatcher, Virgil L. Motley, and Frederick P. Kowsky, Respondents (Appellants/Defendants below), and John Shettle, (Appellee/Defendant below).
CourtSupreme Court of Indiana

Hilbert L. Bradley, Terry C. Gray, Gary, J. Michael Katz, Katz, Brenman & Angel, Merrillville, for petitioners.

John P. Price, Jon D. Krahulik, Grace M. Curry, Nana Quay-Smith, Bingham Summers Welsh & Spilman, Indianapolis, Gilbert King, Jr., Corp. Counsel, City of Gary, Gary, for respondents.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Third District Court of Appeals. Transfer is sought by Plaintiffs, a class of citizens, who brought action against the city of Gary, certain city officials, and the superintendent of state police, John T. Shettle, for alleged violations of the Federal Civil Rights Statute, 42 U.S.C. Sec. 1983 and the Indiana Firearms Act (now codified at Ind.Code Sec. 35-47-2-3), by denying citizens blank handgun application forms. The trial court entered judgment on a jury verdict in favor of the citizens and against the city and the named city officials. No damages were awarded against the state superintendent. On appeal, the Court of Appeals reversed, and found the failure of the citizens to wait until their claim had been denied in whole or part before bringing suit against the city violated section 12 of the Indiana Tort Claims Act, Ind.Code Sec. 34-4-16.5-12, and was fatal to their claim. City of Gary v. Kellogg (1988), Ind.App., 519 N.E.2d 570. Because the holding of the Court of Appeals contravenes that of the United States Supreme Court in Felder v. Casey (1988), 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123, we grant transfer and hereby vacate the opinion of the Court of Appeals.

The facts show that for approximately ten years prior to January 1, 1980, applications for handgun permits were routinely available at the office of the Gary, Indiana, Chief of Police. These were state forms which the Gary Police Department obtained from the Indiana State Police and made available to Gary citizens. In an effort to control the number of handguns on the streets in Gary, however, an agreement apparently was reached between Gary's acting chief of police, Virgil L. Motley, and its mayor, Richard G. Hatcher, that these applications no longer would be distributed from Motley's office. A sign to this effect was posted on the Chief's office door, announcing: "No more gun applications will be given out effective January 1, 1980. Thank you.!!! Chief Office." Thereafter, although the Gary Police Department never refused to accept applications, the application forms no longer were available there, and the record indicates citizens of Gary could not obtain these forms elsewhere. Suit was brought in 1980 by business persons, an attorney, and a homeowner in the community, who testified they needed the guns for security. All were refused gun applications due to the blanket policy discussed above. Motley v. Kellogg (1980), Ind.App., 409 N.E.2d 1207, 1208-09, trans. denied. Plaintiff sought a preliminary injunction prohibiting further withholding of handgun license applications. The trial court entered an order enjoining State Police Superintendent Shettle from the arbitrary and capricious distribution of applications for handgun permits. Shettle was further ordered to make available to Acting Gary Police Chief Motley such number of handgun permits as he shall request to be made available to the citizens of Gary requesting the same for the purpose of applying for handgun permits. Defendants appealed from the granting of the preliminary injunction, and the Court of Appeals affirmed. Id.

Two and one-half years later, Charles Boone obtained leave to file a complaint and petition for issuance of a temporary restraining order against Superintendent Shettle and Police Chiefs Motley and Frederick P. Kowsky. Boone alleged that those officials denied his request to process about fifty (50) handgun applications for B & W Security Agency. The trial court allowed Boone to join the plaintiffs' class and issued a restraining order against the officials. The officials filed their motion for partial summary judgment which alleged non-compliance with the Indiana Tort Claims Act ("ITCA"). The trial court denied the motion and the case went to trial, resulting in a jury verdict in the citizens' favor and against the city and its officials. No monetary damages were assessed against Superintendent Shettle. The trial court subsequently issued a declaratory judgment and permanent injunction in the citizens' favor and awarded $524,600.00 in attorneys fees to the citizens' counsel. The city and its officials appealed and the Court of Appeals reversed, finding the citizens' action was procedurally barred by their failure to comply with the ITCA.

Pursuant to the ITCA, tort claims against a political subdivision of the State are barred unless proper notice is given within one-hundred and eighty (180) days. IC 34-4-16.5-7. The ITCA also provides that within ninety (90) days after notice, the governmental entity must approve or deny the claim in writing or it is automatically denied. IC 34-4-16.5-10. Finally, a person may not initiate suit unless a claim has been denied in whole or in part. IC 34-4-16.5-12.

The citizens complied with the notice requirement, but did not wait until their claim had been denied before initiating suit. The defendants raised this violation as a defense but the trial court ruled the ITCA did not apply.

The citizens claim they did not have to comply because they alleged a federal claim under 42 U.S.C. Sec. 1983. Citing the law in Indiana and other jurisdictions, the Court of Appeals found this argument was without merit, holding when a litigant chooses a state court forum, the procedural framework of the ITCA overrides that of Sec. 1983. The opinion of the Court of Appeals appeared to be correct until the United States Supreme Court handed down Felder v. Casey (1988), 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123, on June 22, 1988. Felder came from the State of Wisconsin and involved the same set of circumstances and a tort claims act with provisions similar to Indiana's. The Court held that under the principles of federalism and the supremacy clause (Art. VI, cl. 2) of the Federal Constitution, 42 U.S.C. Sec. 1983 preempted the application of Wisconsin's notice of claim statute to a Sec. 1983 action brought in Wisconsin state court, because the enforcement of the statute stood as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The Court went on to hold that state notice-of-claim statutes are inapplicable to federal Sec. 1983 litigation for two main reasons, as follows First, ... the application of the notice requirement burdens the exercise of the federal right by forcing civil rights victims who seek redress in state courts to comply with a requirement that is entirely absent from civil rights litigation in federal courts. This burden ... is inconsistent in both design and effect with the compensatory aims of the federal civil rights laws. Second, ... the enforcement of such statutes in Sec. 1983 actions brought in state court will frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court. States may not apply such an outcome-determinative law when entertaining substantive federal rights in their courts.

Felder, 487 U.S. at 141, 108 S.Ct. at 2308, 101 L.Ed.2d at 139-40 (emphasis added); Werblo v. Hamilton Heights School Corp. (1989), Ind., 537 N.E.2d 499. See also Howlett v. Rose (1990), --- U.S. ----, 110 S.Ct. 2430, 110 L.Ed.2d 332 (state as well as federal courts have jurisdiction over Sec. 1983 cases, but individual states may not rely on their own common law heritage to exempt from federal liability persons that Congress subjected to liability).

Felder is dispositive of this issue. Accordingly, we now grant transfer and vacate the opinion of the Court of Appeals reported at 519 N.E.2d 570.

Because the Court of Appeals' decision did not address all of the issues raised by the city and its officials on appeal below, our vacating its decision leaves the following consolidated issues to be resolved:

1. Whether the citizens have a cause of action for damages pursuant to 42 U.S.C. Sec. 1983;

2. Whether the officials and the city of Gary are immune from suit;

3. Whether the trial court erred in excluding Gary residents from the jury;

4. Whether the trial court erred in certifying this as a class action for damages and whether the jury's award of compensatory and punitive damages was improper;

5. Whether certain of the trial court's jury instructions were improper; and

6. Whether attorneys' fees were properly awarded pursuant to 42 U.S.C. Sec. 1988.

Because the citizens did not comply with the provisions of the ITCA, the trial court's separate award of compensatory and punitive damages under this "state tort" theory is hereby reversed. Whether the citizens could have maintained a separate cause of action for damages in tort under Indiana law is a moot issue which we do not decide.

For reasons set forth below, we now hold the citizens have a cause of action for damages pursuant to 42 U.S.C. Sec. 1983 and the city and its officials (at times herein collectively referred to as "city") are not immune from suit under Sec. 1983. We find the city has waived any objection it may have had to the trial court's excluding Gary residents from the jury. We further hold, however, the trial court erred in certifying this as a class action for damages; accordingly, we limit the amount of compensatory and punitive damages awarded to those...

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