Rynerson v. City of Franklin

• Decision Date: 07 August 1996
• Docket Number: No. 41S05-9603-CV-00209,41S05-9603-CV-00209
• Citation: 669 N.E.2d 964
• Parties: Larry J. RYNERSON, Appellant (Petitioner below), v. The CITY of FRANKLIN, Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 964

669 N.E.2d 964

Larry J. RYNERSON, Appellant (Petitioner below), v. The CITY of FRANKLIN, Indiana, Appellee (Respondent below).

No. 41S05-9603-CV-00209.

Supreme Court of Indiana.

Aug. 7, 1996.

John F. Kautzman, Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, for Appellant.

Richard S. Ewing, John D. Waller, Stewart & Irwin, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

We hold that the procedure in Ind.Code § 36-8-3-4, which permits a city attorney who is a member of a city public works and safety board to prosecute police and fire discipline cases before the board so long as the attorney does not participate as a board member in any police or fire disciplinary proceedings, does not violate due process.

Background

Petitioner Larry J. Rynerson was a police officer with the City of Franklin Police Department. Pursuant to Indiana Code § 36-8-3-4 (1988 & 1989 Supp.), the City of Franklin Board of Public Works and Safety conducted a disciplinary hearing against petitioner on May 10, 1990, based on charges brought by the Franklin Chief of Police, William McCarty.

The board was comprised of three members: Mayor Eddy M. Teets, Loren Wilham, and James Acher, the city attorney. Acher temporarily recused himself from his position on the board to represent Chief McCarty at the hearing. The remaining members of the board concluded that petitioner was guilty on three counts of conduct unbecoming an officer and five counts of neglect of duty. The board terminated petitioner's position with the police department. It is undisputed that Acher did not participate in petitioner's disciplinary hearing as a board member and did not participate in the Board's decision to dismiss petitioner.

Petitioner filed his Verified Petition for Judicial Review and the trial court thereafter entered summary judgment against him on August 18, 1994. Petitioner appealed. The Court of Appeals reversed the trial court and held unconstitutional the statutory "procedure through which a city attorney who serves as an appointed member of the city's Board of Public Works and Safety temporarily resigns from the Board in order to prosecute a disciplinary action before that Board." Rynerson v. City of Franklin, 655 N.E.2d 126, 129 (1995). The Court of Appeals reasoned as follows:

In third class cities, the city attorney is appointed by the city executive. I.C. 36-4-9-8(b)(2). And, "[t]he members of the board of public works and safety are the city executive and two (2) persons appointed by the executive." I.C. 36-4-9-8(c). Under this statute, Mayor Teets appointed Mr. Acher as both city attorney and member of the Safety Board, and that dual appointment ultimately resulted in the impropriety at issue in this appeal. It is consistent that, should the mayor not have named the city attorney to the Safety Board, the city attorney could freely serve as an advocate before the Safety Board without fear of creating the appearance of impropriety.

As is typical in disciplinary proceedings, Rynerson's case turned upon the credibility and persuasiveness of the evidence offered by the prosecution balanced against his own testimony and rebuttal evidence. Mr. Acher was a colleague of the Safety Board and had been appointed to that post by the mayor, who was also a Safety Board member. Further, Mr. Acher planned to return to the Safety Board at the conclusion of the disciplinary proceeding and continue working with Mayor Teets and Wilham. A reasonable person could easily perceive that the Safety Board may give more credence to the arguments of Mr. Acher. This arrangement is fundamentally unfair. Where such unfairness is present, due process is violated.

Rynerson, 655 N.E.2d at 128-29.

The city seeks transfer. The city contends that the decision of the Court of Appeals is erroneous because: (i) the due process standard it requires the city to comply with is too high in light of previous decisions by this court and the United States Supreme Court; and (ii) the decision is based on the presumption that the voting members of the board were biased, contrary to the rule of law that courts presume that an administrative decision maker is unbiased in its functioning. Petitioner responds that the Court of Appeals correctly concluded that the city violated his due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and Article 1, § 12, of the Indiana Constitution. ¹ We granted transfer on March 11, 1996.

Discussion

I

A

Due process requires a neutral, or unbiased, adjudicatory decisionmaker. Scholars and judges consistently characterize provision of a neutral decision-maker as one of the three or four core requirements of a system of fair adjudicatory decisionmaking. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 171, 94 S.Ct. 1633, 1652, 40 L.Ed.2d 15 (1974) (White, J., concurring and dissenting); Verkuil, A Study of Informal Adjudication Procedure, 43 U. Chi. L.Rev. 739 (1976); Friendly, Some Kind of Hearing, 123 U. Pa. L.Rev. 1267 (1975). The requirement dates back at least as far as seventeenth century England. In Bonham's Case, 8 Coke 114a, 188a, 77 Eng.Rep. 646, 652 (1610), the Court used natural law reasoning to announce the principle that no person can be a judge in his own cause. The problem lies in defining and applying the neutral decision-maker requirement. Some forms of bias are permissible, even desirable, in a decision-maker. Other forms of bias are impermissible.

Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 9.8 (1994).

We had occasion to confront the due process requirement of a neutral decisionmaker in City of Mishawaka v. Stewart, 261 Ind. 670, 310 N.E.2d 65 (1974), where a city firefighter faced disciplinary charges before the city's public works and safety board. Concluding that it was "imperative that a strict test of impartiality be applied to the factfinding process," we found that it was improper for the Mishawaka city attorney both to prosecute the disciplinary complaint against the firefighter and chair the board responsible for adjudicating guilt and imposing sanctions. Id., 261 Ind. at 677-78, 310 N.E.2d at 69. Building on this principle, the Court of Appeals has held that a fair hearing is not provided when an assistant city attorney represents the city in a hearing in which the city attorney sits as a decisionmaking member of the public works and safety board. City of Hammond v. State ex rel. Jefferson, 411 N.E.2d 152, 153 (Ind.Ct.App.1980). And in early 1981, the Court of Appeals reaffirmed the holding of City of Mishawaka v. Stewart. Martincich v. City of Hammond, 419 N.E.2d 240, 244 (Ind.Ct.App.1981).

Perhaps in response to the City of Mishawaka and two City of Hammond decisions, the legislature in 1981 amended the police officers and firefighters discipline statute to provide:

If the corporation counsel or city attorney is a member of the [public works and] safety board of a city, he may not participate as a safety board member in a disciplinary hearing concerning a member of either [the police or fire] department.

1981 Ind.Acts P.L. 315 § 2, amending Ind.Code § 36-8-3-4(c). The case before us essentially asks whether this statutory arrangement achieves a sufficient separation of the prosecutorial or advocacy functions and the adjudicative functions involved in city police and fire disciplinary proceedings to meet the due process requirement of a neutral or unbiased adjudicatory decision-maker. ² We hold that it does.

B

The United States Supreme Court has not passed upon the issue here, which we would describe as whether it is constitutional for a member of an administrative body to serve as an advocate or prosecutor before the body in a certain type of adjudicative proceeding so long as the member does not participate in any such adjudicative proceeding. But the court has had occasion to examine the constitutionality of the combination of investigative and adjudicative functions in the hands of administrative body members in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). In Withrow, a Wisconsin physician argued that the medical examining board was not an independent decisionmaker and so it would be unconstitutional for the board to rule on the merits of the same charges it investigated and presented to the district attorney. Id. at 46, 95 S.Ct. at 1464. The court rejected the physician's challenge. Its analysis in doing so suggests two principles helpful in resolving the case before us.

B-1

First, the Withrow court said that the physician's contention that the combination of investigative and administrative functions in the same individuals violated due process had to "overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Id. at 47, 95 S.Ct. at 1464. The court went on to quote an earlier opinion on this presumption, saying that "[w]ithout a showing to the contrary, state administrators 'are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.' " Id. at 55, 95 S.Ct. at 1468, quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941).

From this we conclude that our inquiry into whether the arrangement before us violates due process is subject to the presumption that the members of the board are persons of "conscience and intellectual discipline, capable of judging the particular controversy fairly" and will act with "honesty and integrity." Withrow, 421 U.S. at 55, 95 S.Ct. at 1468. But it is also subject to "a realistic...