Lincoln v. Board of Com'rs of Tippecanoe County, 79A04-8610-CV-315

• Citation: 510 N.E.2d 716
• Decision Date: 22 July 1987
• Docket Number: No. 79A04-8610-CV-315,79A04-8610-CV-315
• Parties: Cherie LINCOLN, Appellant (Plaintiff Below), v. BOARD OF COMMISSIONERS OF TIPPECANOE COUNTY, Appellee (Respondent Below).
• Court: Court of Appeals of Indiana

Page 716

510 N.E.2d 716

Cherie LINCOLN, Appellant (Plaintiff Below), v. BOARD OF COMMISSIONERS OF TIPPECANOE COUNTY, Appellee

(Respondent Below).

No. 79A04-8610-CV-315.

Court of Appeals of Indiana,

Fourth District.

July 22, 1987.

Ann G. Davis, Lafayette, for appellant.

James A. Gothard, Lawrence B. O'Connell, Lafayette, for appellee.

MILLER, Judge.

Cherie Lincoln appeals from the trial court's dismissal of her appeal of an executive decision of the Board of Commissioners of Tippecanoe County discharging her from her employment as a courthouse custodian. The trial court dismissed Lincoln's appeal as not timely filed within the thirty day period specified by IND.CODE 36-2-2-27. Lincoln argues the Board's decision terminating her employment was judicial in nature and not ministerial, and therefore she has the right of appeal under I.C. 36-2-2-27. Lincoln next argues the statute, I.C. 36-2-2-27, is unconstitutionally vague, and that Trial Rules 6(A) and 6(E) should be applied to determine when the statute of limitations begins and ends. Lincoln also argues that the Board's decision was made when she received notice and that her appeal was timely filed. Finally, Lincoln claims notice sent by ordinary mail constitutes a denial of due process so the notice provided was inadequate as a matter of law.

We find the Board's decision was quasi-judicial in nature and therefore Lincoln has the right to appeal under I.C. 36-2-2-27. Because I.C. 36-2-2-27 does not specify the method of computing the thirty day statute of limitations, we find Trial Rules 6(A) and 6(E) apply and the statute is not therefore unconstitutionally vague. We hold "the date the executive decision was made" is the date on which the Board posted notice to Lincoln, November 25, 1986. We conclude under Trial Rule 6(A) and 6(E) Lincoln's appeal was timely filed and that notice by ordinary mail was adequate here.

We reverse and remand with instructions to reinstate Lincoln's appeal of the executive decision of the Tippecanoe County Board of Commissioners.

FACTS

Cherie Lincoln began working as a courthouse custodian for the Board of Commissioners of Tippecanoe County in May, 1984. Lincoln was discharged on October 9, 1985 and initiated the grievance procedure pursuant to the Personnel Policy Manual adopted by the Board. ¹ Lincoln claims although her superiors had been critical of both the quality and the quantity of her work earlier in her tenure, she was not provided with a written warning prior to her dismissal as required by the Tippecanoe County Code. Lincoln also claims that although she followed all of the requirements for the five step grievance procedure in a timely fashion, the Board failed to (1) provide a face to face meeting between Lincoln and her Department Head as required by Step 3 of the grievance procedure, and (2) admit Lincoln's mother and sister to the formal hearing as required by Step 5 of the grievance procedure. See footnote 1. Lincoln apparently claims the Board failed to follow its own grievance procedure.

The formal hearing required by Step 5 of the grievance procedure was scheduled for and held on November 21, 1985. On November 25, 1985 both parties agreed that the Board wrote, dated, and posted in the ordinary mail its decision to affirm Lincoln's discharge in a letter ² notifying Lincoln of its decision. The parties also agree that Lincoln received the Board's November 25, 1985 letter on November 27, 1985.

Lincoln filed her appeal of executive decision in the Tippecanoe Circuit Court, together with the required bond for payment of costs, on December 27, 1985. On June 4, 1986, the Board filed a Motion to Dismiss on grounds that the appeal of the executive decision had not been filed within thirty days of October 9, 1985, the date Lincoln was discharged. A hearing was held on the Board's motion to Dismiss on July 1, 1986. The trial court denied Lincoln's Appeal of Executive Decision and granted the Board's Motion to Dismiss on July 16, 1986. Lincoln now appeals.

Issues

Lincoln presents five issues, restated, for consideration on appeal:

I. Whether the decision of the Board of Commissioners of Tippecanoe County terminating Lincoln's employment was quasi-judicial in nature, and therefore appealable to the Circuit Court under I.C. 36-2-2-27.

II. Whether I.C. 36-2-2-27 is unconstitutionally vague because the aggrieved party has no method of ascertaining precisely when the thirty day period of limitations specified by the statute begins to run and ends.

III. Whether the trial court erred in granting the Board's Motion to Dismiss because Lincoln's Appeal of Executive Decision was timely filed.

IV. Whether notice of the executive decision provided to Lincoln by ordinary mail constitutes a denial of due process.

DISCUSSION and DECISION

I. Board Acting in Quasi-Judicial Capacity

Lincoln argues the final decision affirming her discharge made by the Tippecanoe County Board of Commissioners is quasi-judicial in nature and therefore she is entitled to appeal the Board's determination, under I.C. 36-2-2-27, to the Circuit Court. The Board responds that the "decision to terminate or not to terminate an employee by the employer could not possibly be determined a judicial function, but rather must be one of administration in the performance of the job description and duties of the particular employee." Appellee's Brief p. 18. The Board relies on three cases for support; Neswick v. Board of Commissioners of Newton County (1981), Ind.App., 426 N.E.2d 50; Hyde v. Board of Commissioners of Wells County (1936), 209 Ind. 245, 198 N.E. 333; and Potts v. Bennett (1895), 140 Ind. 71, 39 N.E. 518. These three cases demonstrate that the rule in Indiana is well-settled: Only "judicial decisions" of the county board of commissioners may be appealed to the circuit court. Any act which is administrative, ministerial, discretionary, or legislative in nature is not reviewable. ³

The threshold question is whether the Board's acts in this case are judicial. Only three recent cases address this issue and all three clearly involve the same kind of legislative actions by a county board of commissioners. In Neswick v. Board of Commissioners of Newton County, supra, the Fourth District found the passing of an amendatory zoning ordinance is a legislative function of the county board of commissioners and thus no appeal lies under I.C. 17-1-14-26 (1976 Ed.) which authorized appeals from "all decisions" of the county board, the previous version of I.C. 36-2-2-27, unless the zoning ordinance was challenged as exceeding the board's authority, illegal or unconstitutional. In Bryant v. Lake County Trust Company (1975), 166 Ind.App. 92, 334 N.E.2d 730, trans. denied, Judge Hoffman writing for the Third District, held that the enactment of amendatory zoning ordinance is a legislative function of the board of county commissioners and no appeal lies from such board action under I.C. 17-1-14-24 (1971). In Christy v. Board of County Commissioners of Porter County (1973), 156 Ind.App. 268, 295 N.E.2d 849, the Third District found the passage of a rezoning ordinance by the board of county commissioners was a legislative act and not subject to judicial review. While all of these cases state the rule that the right of appeal under the predecessor of our current statute lies only from "judicial decisions", none of these case define a "judicial decision". Other cases discussing what constitutes a judicial act by a county board of commissioners date back to the early years of this century and before, and consequently offer little guidance as to what appears to have been arbitrary labeling. ⁴

In a more recent case decided under I.C. 36-2-2-29, Pastrick v. Geneva Township of Jennings County (1985), Ind.App., 474 N.E.2d 1018, Judge Neal was not presented with the question of whether the county board's action in reviewing the denial of assistance to a poor-relief applicant by the township trustee was "judicial in nature". Rather, the township argued the applicant should have filed a petition for mandate and the First District found the trial court had jurisdiction under I.C. 36-2-2-29 to hear the applicant's complaint appealing the unfavorable decision of the board of county commissioners on her application for assistance in paying her electric bill. The Board of Commissioner's review of the trustee's decision to deny poor relief to an individual applicant was accepted by the court and the parties as "judicial in nature".

The term "quasi-judicial" or "judicial in nature" is used by our sister jurisdictions to designate a judicial function and to indicate that it is being exercised by a person other than a judge. 1 Am.Jr.2d Administrative Law Sec. 161; 35A Words and Phrases, Quasi-Judicial. The authority of an administrative agency to act in a judicial way is explained as follows:

"The power to hear and determine, or to ascertain facts decide by the application of rules of law to the ascertained facts, is undoubtedly a part of the judicial power or a judicial function, but this power is not peculiar to the judicial office. It appertains as well to the other departments of the government as to the judiciary. Administrative agencies may hear and determine, or ascertain facts and decide by the application of rules of law to the ascertained facts, and even determine the facts upon which their jurisdiction depends, and the power exercised by them is not judicial in the sense of a violation of the principle of separation of powers, but is administrative or quasi-judicial. Particularly is it classified as quasi-judicial for procedural purposes.

The power of administrative and executive officers to hear and determine many matters more or less directly affecting public or private rights, not being in the nature of a suit or of an action between parties, is not the exercise of judicial power within the meaning of the constitution. Congress and the state legislatures have long...