Waller v. City of Madison

• Decision Date: 03 February 2022
• Docket Number: Court of Appeals Case No. 21A-PL-928
• Citation: 183 N.E.3d 324
• Parties: Robert J. WALLER, Appellant-Petitioner, v. CITY OF MADISON, Appellee-Respondent.
• Court: Indiana Appellate Court

183 N.E.3d 324

Robert J. WALLER, Appellant-Petitioner,

v.CITY OF MADISON, Appellee-Respondent.

Court of Appeals Case No. 21A-PL-928

Court of Appeals of Indiana.

FILED February 3, 2022

Attorney for Appellant: R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana

Attorney for Appellee: William Joseph Jenner, Jenner, Pattison & Sharpe, Madison, Indiana

Weissmann, Judge.

[1] The Mayor of Madison revoked Robert Waller's appointments to both the City of Madison Plan Commission (Plan Commission) and the Board of Zoning Appeals (BZA) after a heated exchange at a meeting of the Madison Board of Public Works and Safety (Board of Public Works). Waller believes he was wrongfully removed from those positions, and he wants them back. The trial court denied his request for a preliminary injunction, and he now appeals. We find the trial court applied the wrong meaning of "for cause" in determining whether the mayor properly removed Waller from these two appointed boards. We also find the trial court misapplied the law related to Waller's free speech claims. We reverse and remand for further proceedings.¹

Facts

[2] Waller was a member of several community boards and commissions in the City of Madison, including the Plan Commission, the BZA, and the Police Merit Commission, also known as the Police Merit Board.² The former mayor appointed Waller to the Plan Commission and the BZA. Police officers selected Waller to serve on the Police Merit Commission.

[3] On December 21, 2020, the Board of Public Works conducted a public hearing during which it discussed the revision of the Madison Police Department's standard operating procedures (SOPs). The current Mayor, Bob Courtney (the Mayor), sits on this board. Waller appeared before the Board of Public Works, apparently on behalf of the Police Merit Commission, to "stop a vote" on revisions to the SOPs. App. Vol. II, p. 50. A "lengthy and argumentative" exchange ensued between Waller and the Mayor, in which they squabbled over the proper name for the Police Merit Commission and whether Waller had previous opportunities to comment on the revision of the SOPs. Id.

[4] About three weeks later, Waller received a letter from the Mayor rescinding Waller's appointments to the BZA and the Plan Commission. App. Vol. II, pp. 18-19. The letter stated, "I take no pleasure in this action [rescinding your appointments] but given the manner of your conduct at the Board of Public Works and Safety meeting dated December 21, 2020, you have left me no choice." Id. at 18. The letter listed the following six causes for removal:

• Combative nature of conduct which is unbecoming of a mayoral appointment.

• Making false allegations against the Mayor and the Chief of Police and the Mayor's appointments to the Board of Public Works and Safety and the Police Merit Board regarding their ability to evaluate recommendations independently and professionally to the police standard operating procedures.

• Condescending attitude toward the civilian formed Public Steering Committee, which comprised of nine members of the community, including two current members of the police department. Your statement that they are disqualified due to "personal emotions" is unfounded. In fact, this group is racially diversified and bring (sic) a wealth of personal and professional experience to the process. Community safety greatly depends on community participation.

• False allegations that the Mayor possesses a "disdain" for the City of Madison Police Merit Board.

• Lack of involvement and interest in providing meaningful feedback to the process despite multiple opportunities. And,

• Loss of trust that you can competently and fairly carry out your duties to these boards.

Id.

[5] In response, Waller filed a complaint alleging his removal was unlawful. He then moved for a preliminary injunction to return him to both the Plan Commission and the BZA during the pendency of the lawsuit. In support of his request for injunctive relief, Waller cited Indiana's removal statutes and the free speech protections of the First Amendment of the United States Constitution and Article I, Section 9 of the Indiana Constitution. After the trial court denied Waller's request for an injunction, Waller appealed pursuant to Indiana Appellate Rule 14(A)(5), which permits, as a matter of right, the appeal of interlocutory orders denying preliminary injunctions.

Discussion and Decision

[6] Because a trial court's decision to grant or deny a preliminary injunction is discretionary, we review for an abuse of discretion. State v. Econ. Freedom Fund , 959 N.E.2d 794, 800 (Ind. 2011). "An abuse of discretion occurs when the trial court misinterprets the law." Id.

[7] To obtain a preliminary injunction below, Waller was required to show by a preponderance of evidence that:

1. his remedies at law are inadequate, meaning he will experience irreparable harm pending the resolution of the substantive action;

2. he is reasonably likely to be successful at trial;

3. his threatened injury (here, his continued removal) outweighs potential harm to the City were the injunction granted; and

4. the injunction does not disserve the public interest.

B&S of Fort Wayne, Inc. v. City of Fort Wayne , 159 N.E.3d 67, 73 (Ind. Ct. App. 2020) (citing Econ. Freedom Fund , 959 N.E.2d at 803 ). When a court determines that a party's actions are unlawful, "the public interest is so great that the injunction should issue regardless of whether the plaintiff has actually incurred irreparable harm or whether the plaintiff will suffer greater injury than the defendant." Id. (citing Union Twp. Schs. Corp. v. State ex rel. Joyce , 706 N.E.2d 183, 192 (Ind. Ct. App. 1998) ; Short on Cash.net of New Castle, Inc. v. Dep't of Fin. Insts. , 811 N.E.2d 819, 823 (Ind. Ct. App. 2004) ).

[8] Waller argues that the trial court erred in denying his motion for a preliminary injunction because his removal was contrary to statute. He argues that the Mayor did not follow the procedure described in Indiana Code § 5-8-1-35 (2021) (Removal Statute).³ He also argues that his removal was not "for cause" as required by Indiana Code §§ 36-7-4-218(f) and -906(f), the statutes outlining removal procedures for the Plan Commission and the BZA. Alternatively, he argues that his removal violated his free speech rights. We reverse and remand for further proceedings on both his claim that his removal was not "for cause" and his constitutional claim.

I. Statutory Claims

A. Removal Under the Removal Statute

[9] Waller claims that as an officer under Chapo v. Jefferson Cty. Plan Comm'n , 164 N.E.3d 131, 133-34 (Ind. Ct. App. 2021), trans. denied , he can only be removed pursuant to the Removal Statute, which outlines removal procedures for officers guilty of specific acts of misconduct.⁴ Though this is one path to removal, it is not the only one.

[10] Indiana Code §§ 36-7-4-218(f) and -906(f) permit removal for more banal acts or omissions by empowering the "appointing authority" to remove members of the Plan Commission and the BZA "for cause." These procedures allow for broader discretion than the Removal Statute, which requires specific acts of misconduct. The broader discretion reflects the specific relationship between appointees to the Plan Commission and the BZA and their "appointing authority." As Waller's "appointing authority," the Mayor can follow Indiana Code §§ 36-7-4-218(f) and -906(f).

[11] Neither the Removal Statute nor Indiana Code §§ 36-7-4-218(f) and -906(f) claims to be the exclusive means for removal. See Neff , 117 N.E.3d at 1267 ("[O]ur Constitution provides ways to remove an official outside of an election in certain circumstances. One such way is through a judicial proceeding pursuant to the Removal Statute." (internal citations omitted)). The Mayor did not err by employing Indiana Code §§ 36-7-4-218(f) and -906(f) rather than the Removal Statute. The existence of one form of removal does not offend the existence of another; they are two paths to the same destination.

B. "For Cause" Removal Under Indiana Code §§ 36-7-4-218(f) and -906(f)

[12] Waller's case hinges on the meaning of "for cause." Indiana Code §§ 36-7-4-218(f) and -906(f), which govern the Plan Commission and the BZA, respectively, state: "The appointing authority may remove a member ... for cause." But "for cause" is not defined anywhere in the relevant Title, nor have we had occasion to define the term previously in this context. Waller argues that these provisions prohibit a board or commission member's removal for anything except a "miscarriage of his obligations as a member." Appellant's Br., p. 17.

[13] The City argues that the provisions are not so narrow. Even if they were, the City maintains that the causes listed in the Mayor's letter reflected the Mayor's belief that Waller could no longer fulfill his duties. In applying the "for cause" standard below, the trial court determined "for cause" required something less than "good cause" and that the Mayor's reasons qualified. App. Vol. II, p. 66. The implication of the trial court's order is that any reason or justification proffered by the Mayor would have been sufficient to remove Waller.

[14] To resolve the meaning of "for cause" in Indiana Code §§ 36-7-4-218(f) and - 906(f), we turn to our well-established rules of statutory interpretation.

When interpreting a statute, our first task is to give its words their clear and plain meaning, while considering the structure of the statute as a whole. As we interpret the statute, we are mindful of both what it does say and what it does not say. To the extent there is an ambiguity, we determine and give effect to the intent of the legislature as best it can be ascertained. We may not add new words to a statute which are not the expressed intent of the legislature.

City of Lawrence Utils. Serv. Bd. v. Curry , 68 N.E.3d 581, 585 (Ind. 2017) (cleaned up).

[15] "For cause" expresses "a common standard governing the removal of a civil servant or an...