State ex rel. Dunlap v. Cross, No. 3-579A125

Docket NºNo. 3-579A125
Citation403 N.E.2d 885
Case DateApril 28, 1980
CourtCourt of Appeals of Indiana

Page 885

403 N.E.2d 885
STATE of Indiana ex rel. LaVerne DUNLAP, Appellant (Plaintiff Below),
v.
Robert J. CROSS, Raymond H. Rowe and Larry Kramer,
Individually and as Members of the Police Civil Service
Commission, David LaRocco, Individually and as Chief of the
Police Department, and City of Michigan, Indiana, Appellees
(Defendants Below).
No. 3-579A125.
Court of Appeals of Indiana,
Third District.
April 28, 1980.

Page 886

Hilbert L. Bradley, Gary, for appellant.

Steven C. Snyder, Michigan City, for appellees.

STATON, Judge.

LaVerne Dunlap, a Michigan City police officer, sought judicial review of a decision of the Police Civil Service Commission 1 which suspended her from the police force, without pay, for a period of 10 working days. The LaPorte Superior Court granted a motion to dismiss as to defendants Robert J. Cross, Raymond H. Rowe, and Larry Kramer, individually and as members of the Police Civil Service Commission and David LaRocco, individually and in his capacity as Police Chief. 2 It granted a motion for summary judgment on behalf of the City of Michigan City.

On appeal, Dunlap raises three issues for our consideration:

(1) Were her procedural due process rights to prior notice and a hearing violated when she was suspended without pay for a period of 10 working days?

(2) Did she have a cause of action for willful and malicious deprivation, independent of IC 1971, 18-1-11-3?

(3) Did the trial court err in failing to order a transcript and enter special findings of fact?

We affirm.

The facts relevant to our disposition of the case indicate that Officer Dunlap was observed by fellow police officers playing pool in a local tavern on March 4, 1978 between 7:30 p. m. and 3 a. m. the following morning. At that time, Officer Dunlap was scheduled to be on duty, but had requested a sick leave absence. On March 8, 1978, she received a letter from the Chief of Police which recited these facts and informed her that she had been charged with neglect of duty and suspended, without pay, for a period of 10 working days. The letter also stated that additional disciplinary action was being sought before the Police Civil Service Commission. The Commission conducted a hearing and heard evidence on the question of whether additional disciplinary action was appropriate. On May 4, 1978, it entered an order denying the Chief of Police's request for additional disciplinary action. Dunlap instituted this action on May 25, 1978.

I.

Due Process Rights

(a) IC 1971, 18-1-11-3

Dunlap bases her claim upon the provisions found in IC 1971, 18-1-11-3, the firefighters' and police officers' Tenure Act. The pertinent section 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 shall have the right to appeal to the circuit court or superior court of the county in which such city is located, from such decision of dismissal or suspension by said board, but shall not have the right of appeal from any other decision. Such

Page 887

appeal shall be taken by such party filing in such court; within thirty (30) days after the date such decision is rendered, a bond as herein required and a verified complaint stating in concise manner the general nature of the charges against him or her, the decision of the board thereon, and a demand for the relief asserted by plaintiff. . . ." (Emphasis supplied.).

It is undisputed that, on March 8, 1978, the Police Chief suspended Dunlap for a period of 10 working days, without pay. The statute, upon which she is relying, clearly states that only the action of the board which results in a suspension "in excess of 10 days" is subject to judicial review. Dunlap has failed to meet this requirement. As a matter of statutory construction, she is not entitled to any sort of judicial review.

Despite these statutory obstacles, Dunlap contends that "the Appellate Courts of this state have jurisdiction and a duty to establish a policy that there are certain instances in which a policeman or fireman is entitled to a judicial review in order to prevent the kind of injustice which occurred in the case at bar." She claims that there is a "dearth of Indiana decisions" on this point; our research indicates otherwise.

The Court in City of Muncie v. Campbell (1973), 156 Ind.App. 59, 295 N.E.2d 379, considered a suspension "for a period not exceeding ten (10) days" 3 in conjunction with further disciplinary action. In approving the use of such suspension, it said at 382:

"It is our opinion that the salutary purpose . . . is two-fold: First, to allow expeditious treatment of minor infractions; and secondly, to allow immediate suspension of an officer who is suspected of more serious misconduct, in order to remove him from the responsibilities of his position in the interval between the occurrence of the misconduct and the full hearing by the Commission. The necessity of removing a serious offender from his sensitive position of authority pending a fair hearing cannot be denied. As appropriately stated in McElroy v. Trojak (1959), 21 Misc.2d 145, 189 N.Y.S.2d 824, 826-827:

'Police officers occupy a unique status in the maintenance of law and order in a community and the public interests would be seriously jeopardized in the case of a police officer if he were allowed to be incompetent or charged with misconduct and it was required that he be retained in office pending the hearing of the charges or the...

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10 practice notes
  • Bailey v. Canan, No. IP97-1483-CM/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • January 25, 2000
    ...in suspensions of less than [ten] days." Defs.' Br. In Supp. Of Mot. For Summ.J. at 36 (citing State ex rel. Dunlap v. Cross, 403 N.E.2d 885, 888 (Ind.Ct.App.1980)). Defendants rely upon State ex rel. Dunlap v. Cross, 403 N.E.2d 885 (Ind.Ct.App.1980), and other cases for the propositio......
  • Estate of Wilson, Matter of, No. 48A05-9209-CV-329
    • United States
    • Indiana Court of Appeals of Indiana
    • March 10, 1993
    ...involved. Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; State ex rel. Dunlap v. Cross (1980), Ind.App., 403 N.E.2d 885. The question of whether the state's involvement with nonclaim statutes, such as I.C. 29-1-7-17, is sufficient to implicate state action was......
  • Smith v. Town of Eaton, Ind., No. 89-2563
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 17, 1990
    ...83 L.Ed.2d 820 (1985). An Indiana court came to the opposite conclusion when it interpreted the predecessor statute. Dunlap v. Cross, 403 N.E.2d 885, 887-88 (Ind.Ct.App.1980). It appears that the Dunlap court placed great emphasis on the lack of appellate recourse in the statute for a suspe......
  • Metropolitan Dade County v. Sokolowski, No. 82-1949
    • United States
    • Court of Appeal of Florida (US)
    • October 11, 1983
    ...381 N.E.2d 510 (1978). Compare Krause (statute applies both to dismissal and suspension) with State ex rel. Dunlap v. Cross, Ind.App., 403 N.E.2d 885 (1980) (statute provided for appeal only for suspension of greater than ten days, employee had no property interest in suspension not in exce......
  • Request a trial to view additional results
10 cases
  • Bailey v. Canan, No. IP97-1483-CM/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • January 25, 2000
    ...interest in suspensions of less than [ten] days." Defs.' Br. In Supp. Of Mot. For Summ.J. at 36 (citing State ex rel. Dunlap v. Cross, 403 N.E.2d 885, 888 (Ind.Ct.App.1980)). Defendants rely upon State ex rel. Dunlap v. Cross, 403 N.E.2d 885 (Ind.Ct.App.1980), and other cases for the propos......
  • Estate of Wilson, Matter of, No. 48A05-9209-CV-329
    • United States
    • Indiana Court of Appeals of Indiana
    • March 10, 1993
    ...involved. Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; State ex rel. Dunlap v. Cross (1980), Ind.App., 403 N.E.2d 885. The question of whether the state's involvement with nonclaim statutes, such as I.C. 29-1-7-17, is sufficient to implicate state action was......
  • Smith v. Town of Eaton, Ind., No. 89-2563
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 17, 1990
    ...83 L.Ed.2d 820 (1985). An Indiana court came to the opposite conclusion when it interpreted the predecessor statute. Dunlap v. Cross, 403 N.E.2d 885, 887-88 (Ind.Ct.App.1980). It appears that the Dunlap court placed great emphasis on the lack of appellate recourse in the statute for a suspe......
  • Metropolitan Dade County v. Sokolowski, No. 82-1949
    • United States
    • Court of Appeal of Florida (US)
    • October 11, 1983
    ...381 N.E.2d 510 (1978). Compare Krause (statute applies both to dismissal and suspension) with State ex rel. Dunlap v. Cross, Ind.App., 403 N.E.2d 885 (1980) (statute provided for appeal only for suspension of greater than ten days, employee had no property interest in suspension not in exce......
  • Request a trial to view additional results

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