Wencke v. City of Indianapolis, 2-681A203
| Docket Nº | No. 2-681A203 |
| Citation | 429 N.E.2d 295 |
| Case Date | December 29, 1981 |
| Court | Court of Appeals of Indiana |
Page 295
v.
CITY OF INDIANAPOLIS, Eugene Gallagher, Chief of the
Indianapolis Police Department, and Donald Adams, Lieutenant
in charge of Personnel of the Indianapolis Police
Department, Appellees (Defendants Below).
Page 296
William A. Hasbrook, Ruckelshaus, Roland & O'Connor, Indianapolis, for appellant.
Richard S. Ewing, Chief Litigation Counsel, Susan L. Macey, Asst. Corp. John P. Ryan, Corp. Counsel, Indianapolis, for appellees.
SHIELDS, Judge.
Elwood Wencke appeals the decision of the trial court denying his petition to enjoin enforcement of the Indianapolis Police Department's mandatory retirement age of 65. He raises the following issues on appeal:
1) whether application of a mandatory retirement age of 65 to Wencke violated the constitutional prohibition against impairment of contracts;
2) whether the Indianapolis Police Department is estopped from enforcing a mandatory retirement age of 65;
3) whether the trial court erred in admitting expert testimony concerning the fitness of 65 year old police officers to serve on the Indianapolis Police Department; and
4) whether the mandatory retirement age of 65 as applied to Indianapolis police officers violates the Federal Age Discrimination Act.
Because the disposition on Wencke's first issue requires reversal of the trial court's decision, we do not address his additional allegations of error.
Reversed and remanded.
Elwood Wencke, born March 31, 1915, was employed by the Indianapolis Police Department as a Field Sector Lieutenant. He was first appointed to the department on June 16, 1946. At the time of his appointment the mandatory retirement age of Indianapolis police officers was 70 years. I.C. 19-1-1-1 (now repealed) provided in pertinent part:
"The board of public safety of every city of the first class shall hereafter appoint originally as regular members of the fire or police departments of such city only persons whose age at the time of such appointment does not exceed thirty-five (35) years:
"The board shall also have authority to retire from service any policeman or fireman, of either sex, who has reached the age of seventy (70) years, regardless of physical condition or any other reason ..." (emphasis added)
This provision was not expressly repealed by our legislature until 1981.
In 1970, however, the legislature enacted the "Consolidated First Class Cities and Counties Act" which reorganized the local municipal and county government in Marion County, thus eliminating the overlapping
Page 297
jurisdictions of various county and municipal boards and departments. I.C. 18-4-1-1-18-4-15-2 (now repealed). Chapter 12 of that act specifically provides for the organization and operation of the Department of Public Safety of the Consolidated City of Indianapolis. Because the act did not contain any provision concerning the mandatory retirement of Indianapolis police officers, I.C. 19-1-1-1 apparently remained the operative statute governing the mandatory retirement of policemen. Then, in 1975, the legislature added I.C. 18-4-12-20.5 (now repealed) to the Unigov Act which lowered the mandatory retirement age to 65. It provided:"A member of the police force shall be required to retire from the force no later than the day of his sixty-fifth birthday."
Wencke was notified by the City he was to be officially retired from the police department pursuant to I.C. 18-4-12-20.5 effective March 31, 1980, his sixty-fifth birthday. The City acknowledged Wencke was physically and mentally fit and that he satisfactorily performed his duties as a field sector lieutenant. His retirement, however, was mandated by the City in accordance with the statute.
Wencke contends the application of I.C. 18-4-12-20.5 in the present case impairs a contractual obligation and runs afoul of the contract clause of both the United States and Indiana Constitutions. U.S.Const. Art. 1 § 10; Ind.Const. Art. 1 § 24. He asserts I.C. 19-1-1-1, which was in effect at the time he was appointed to the department and which had not been expressly repealed at the time this action was initiated,...
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