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Torres v. City of Hammond

Court of Appeals of Indiana

June 25, 2014

HUGO TORRES, Appellant-Plaintiff,
v.
CITY OF HAMMOND and CITY OF HAMMOND BOARD OF PUBLIC WORKS AND SAFETY, Appellees-Defendants

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable John M. Sedia, Judge. Cause No. 45D01-1302-PL-15.

ATTORNEY FOR APPELLANT: DAVID PAUL ALLEN, Hammond, Indiana.

ATTORNEYS FOR APPELLEES: STEVEN J. SERSIC, KEVIN C. SMITH, KRISTINA KANTAR, Smith, Sersic, Munster, Indiana.

VAIDIK, C.J., concurs. RILEY, J., dissents with separate opinion.

OPINION

MAY, Judge

Hugo Torres appeals a trial court decision upholding an order by the City of Hammond Board of Public Works and Safety (" the City" ) to demolish his house. As Torres did not have the benefit of an impartial decision maker in the proceeding that ordered demolition of his property, we reverse.[1]

FACTS AND PROCEDURAL HISTORY

Torres owns a residence in Hammond. In October of 2012, the City declared the residence uninhabitable. The building commissioner issued an order to repair or demolish it. In January 2013 the City conducted a hearing on the order. The board that conducted the hearing and ordered the demolition was comprised of the city controller, the city engineer, and the city attorney. As the city attorney served on the board, the City's case was argued by his assistant city attorney. After the hearing, the board found the house posed a health and safety danger to nearby occupied residences and ordered the house demolished. The trial court affirmed the City's order.

DISCUSSION AND DECISION

Torres was deprived of his due process right to an impartial decision maker when the Hammond city attorney served as a deciding member on the board of

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public works and safety at a hearing where the assistant city attorney represented the City.

Due process requires a neutral, or unbiased, adjudicatory decision maker. 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 decision making. Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind. 1996). In City of Hammond v. State ex rel. Jefferson, 411 N.E.2d 152, 153 (Ind.Ct.App. 1980), we determined Jefferson's hearing was improper when, as in the case before us, an assistant city attorney represented the city while the city attorney sat as a decision making member of the public works and safety board. Id. at 155.

Jefferson was alleged to have violated rules and tardiness policies, and the Fire Chief recommended his dismissal. Proceedings were conducted before the Hammond Board of Public Works and Safety, of which the city attorney, McIllwain, was a member. McIlwain indicated he would serve only in his capacity as a board member, and the assistant city attorney represented the city in the action against Jefferson. The board suspended Jefferson and placed him on probation. Jefferson appealed the board's findings to the trial court, which reversed the board's decision. The trial court determined Jefferson was not afforded a fair hearing because the city attorney's office participated in both the prosecution and decision-making processes.

We agreed, relying on City of Mishawaka v. Stewart, 261 Ind. 670, 310 N.E.2d 65 (1974), in which our Indiana Supreme Court held a city attorney cannot serve the dual functions of board member and advocate for the ...


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