Kuespert v. State

• Decision Date: 01 August 1978
• Docket Number: No. 1-1077A234,1-1077A234
• Citation: 378 N.E.2d 888,177 Ind.App. 142
• Parties: Thomas L. KUESPERT et al., Plaintiffs-Appellants, v. STATE of Indiana et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 888

378 N.E.2d 888

177 Ind.App. 142

Thomas L. KUESPERT et al., Plaintiffs-Appellants, v. STATE of Indiana et al., Defendants-Appellees.

No. 1-1077A234.

Court of Appeals of Indiana, First District.

Aug. 1, 1978.

Rehearing Denied Sept. 12, 1978.

Gregg & Susong, Thorntown, Locke, Reynolds, Boyd & Weisell, Indianapolis, for plaintiffs-appellants

Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for defendants-appellees.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Plaintiffs-appellants Thomas L. Kuespert, Et al., appeal from the trial court's granting the motion for involuntary dismissal of defendants-appellees State of Indiana, Et al. (the State), and from the trial court's denial of the right of Kuespert, Et al., to bring this action as a class action.

FACTS

On June 6, 1975 a class action was filed by 57 limited police employees of the Indiana State Police on behalf of themselves and all others who were similarly situated against the State of Indiana, the Governor, the State Police Board, the Superintendent of the State Police, the State Budget Agency, the Director of the State Budget Agency, and members of the Budget Committee. The 57 limited police employees were all radio and communications officers for the Indiana State Police. Communications officers, like enforcement officers, are sworn police officers, wear a uniform and a badge, stand roll call, cannot secure other employment without permission, must keep their commander advised of their whereabouts, and are on 24-hour call. Unlike enforcement officers communications officers are not issued a firearm, and have no police authority, unless they are on duty either at their post or on special assignment. They may on occasion, however, be left in charge of a command post or have prisoners entrusted to their care.

From approximately 1958 to 1969 a limited police employee for the Indiana State Police received exactly the same salary as an enforcement officer of the same grade. From 1969 to the present that parity has not been maintained. Prior to 1961 the salaries for all State Police employees were fixed by the State Police Board with the approval of the Governor. Since 1961 the salaries for all State Police employees have been set in the following manner: First, the State Police Board would suggest to the Department of Administration a salary for each pay-grade in the State Police; next the Department of Administration would make salary recommendations to the Budget Agency for its approval.

In 1975 the legislature passed the following appropriation, as found in Acts, 1975, P.L. 343 § 2, p. 1844:

"The above appropriation designated 'emergency service allowance' is for the express purpose of compensating all sworn state police officers for being on call twenty-four (24) hours per day every day of the year. This allowance will amount to eight hundred forty dollars ($840) per year for each officer, and is to be paid in twenty-six (26) equal installments. In addition, all officers shall be paid merit increases and cost of living adjustments approved for state employees."

Limited police officers were not given the $840 annual emergency allowance even though they are sworn police officers and are subject to 24-hour call.

The actionable allegations contained in each of the 11 rhetorical paragraphs of the complaint in this action are found in the appellants' brief of Kuespert, Et al., on pages 11-14, as follows:

"Count I alleges:

'That the defendants, the State Budget Agency, Edison L. Thuma, as Budget Director, and members of the Budget Committee, have engaged in ultra vires activity by approving, establishing, fixing and/or setting the salaries, wages and/or compensation of plaintiffs in violation of Acts 1961, Ch. 123, Sec. 13, p. 247 as amended, (I.C. 4-12-1-13) and of Acts 1937, Ch. 184, Sec. 2, p. 895 (I.C. 4-12-2-2).'

Count II alleges:

'That defendants, the State Police Board of the Indiana State Police Department, its members and said State Police Department have failed to perform their duties by not prescribing or fixing the salaries and/or compensation of the plaintiffs as required by Acts 1945, Ch. 344, Sec. 1, p. 1622 and as amended, (I.C. 10-1-1-1) and Acts 1945, Ch. 344, Sec. 3, p. 1622 (I.C. 10-1-1-3).'

Count III alleges:

'That the defendant, Otis Bowen, Governor of the State of Indiana, has failed to properly and faithfully execute the laws of the State of Indiana in regards to salaries, wages and other compensation of plaintiffs by failing to perform the executive functions as contained in Acts 1961, Ch. 123, Sec. 13, p. 247 and as amended, (I.C. 4-12-1-13); Acts 1937, Ch. 194, Sec. 2, p. 895, (I.C. 4-12-2-2); Acts 1945, Ch. 344, Sec. 1, p. 1622 and as amended, (I.C. 10-1-1-1); and Acts 1945, Ch. 344, Sec. 3, p. 1622 (I.C. 10-1-1-3).'

Count IV alleges:

'That the defendants, the State Police Board of the Indiana State Police Department, its members, Robert DeBard as Superintendent of the State Police and said State Police Department have engaged in ultra vires activity or activities by doing one or more of the following:

(a) Establishing ranks and grades and positions,

(b) Setting standards of qualifications for said ranks and grades and positions, and/or

(c) Formulating and adopting rules and regulations relative to plaintiffs, in violation of the guidelines and reasonable standards established by the State Legislature in Acts 1945, Ch. 344, Sec. 2, p. 1622, and as amended (I.C. 10-1-1-2) and Acts 1945, Ch. 344, Sec. 3, p. 1622 (I.C. 10-1-1-3).'

Count V alleges:

'That the defendants, the Indiana Department of Administration, R. E. Sanders, as Commissioner of the Indiana Department of Administration, and Robert C. Roeder, as Director of the Personnel Division of the Indiana Department of Administration, have engaged in ultra vires activity by approving, establishing, fixing and/or setting the salaries, wages and/or compensation of plaintiffs in violation of Acts 1961, Ch. 269, Sec. 2, p. 610, (I.C. 4-13-1-12) and of Acts 1961, Ch. 269, Sec. 15, p. 610; Acts 1967, Ch. 279, Sec. 2, p. 887; 1971 P.L. 27, Sec. 1, p. 164 (I.C. 4-13-1-15).'

Count VI alleges:

'That the plaintiffs were in fact demoted by defendants effective July 1, 1969, and/or at divers other times thereafter. That said demotions were made in violation of Acts 1945, Ch. 344, Sec. 6, p. 1622, and as amended (I.C. 10-1-1-6).'

Count VII alleges:

'2. That defendants have denied plaintiffs' their rights as guaranteed by the Constitution of the State of Indiana by taking property from plaintiffs without due process of law and/or without just compensation.'

Count VIII alleges:

'2. That plaintiffs and defendants entered into various individual employment contracts of divers dates, whereby plaintiffs agreed to perform certain duties for defendants in return for payment of salary, wages, and/or compensation as prescribed by law.

3. That plaintiffs have performed all conditions of said contract required to be performed by them.

4. That defendants have breached their contracts by refusing to pay the consideration agreed upon.'

Count IX alleges:

'2. That the defendants have denied plaintiffs equal protection of the law as guaranteed by the Constitution of the United States of America.

3. That said denial was created by a category called "Limited Police Employee" and denying to these police employees and/or civilian employees the rights afforded the other police employees and/or civilian employees of the Department.'

Count X alleges:

'That the improper action alleged against defendants in Counts I through IX were done willfully in a wanton or oppressive manner and/or done with reckless disregard of the rights of plaintiffs, and exemplary damages were claimed.'

Count XI alleged and defendants admitted that defendants propose to grant an $840 annual pay increase to certain enforcement personnel while denying the increase to plaintiffs. The plaintiffs alleged and defendants denied the following allegations of Count XI:

'3. That defendants have taken away compensation of some of the plaintiffs by denying them personal use of assigned automobiles while allowing other enforcement personnel to continue using their assigned automobiles for personal use.

4. The defendants propose to and will remove or have removed, by new rules and regulations or other means, all new personnel now classified "limited police employees" from the police pension fund and participation in that program.

5. That defendants will continue to classify plaintiffs as "limited police employees" and deny them their rights and benefits as outlined in Paragraph I, II, III, IV, V, VI, VII, VIII and IX of this Complaint.

6. That defendants will demote and have demoted plaintiffs by reclassification of plaintiffs in a manner unauthorized by law.' " (Citations to transcript omitted)

On June 8, 1976 the State filed a motion for summary judgment. On July 14, 1976 the court granted the State's motion for summary judgment as to paragraphs III, V, VII, IX, and XI of the compliant of Kuespert At trial the State objected to any reference of this action as a class action on the grounds that it had not been previously certified as such by the court. The court sustained the State's objection and denied a motion of Kuespert, Et al., wherein they petitioned the court to hold a hearing at that time for the purpose of determining whether the class action was proper. The court reasoned that it was the responsibility of Kuespert, Et al. to obtain certification from the court and not that of the court to initiate such procedures. The court also suggested that Kuespert, Et al., would not be able to comply with the notice requirements of Ind.Rules of Procedure, Trial Rule 23, even if the court were to certify the action as a class action at that time, in that the court was not amenable to granting a continuance for such purpose.

Et al. Trial on the remaining counts was held on January 31, 1977.

After Kuespert, Et...