Opposition Brief — Smith v. Town of Eaton

In The MAR T2 891

Supreme Court of the United

October Term, 1990

=

BRIAN L. SMITH,

Petitioner,

vs.

TOWN OF EATON, INDIANA, Town Board of Eaton

and its Members, Ronald Haggard, as board

member and individually, Gale Pitman, as board

member and individually, David Williams, as board

member and individually, Andy Cavanaugh, as board

member and individually, Charles Hicks, as board

member and individually, Don Mitchell, as board

member and individually, Jimmie Vance, as

Town Marshall and individually,

and Does 1 thru 5,

Respondents

-o- —

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

BRIEF IN OPPOSITION OF

RESPONDENTS TOWN OF EATON, ET AL.

4

Dm S. Wc

Counsel of Record

Tooo l Grass

Warner, WAA, McLagen

& Dacut

400 East Jackson Street

Muncie, Indiana 47305

(317) 288-4425

Attorneys for Respondents

Town of Eaton, Indiana

NR CAL CURT a

QUESTION PRESENTED FOR REVIEW

Did the United States Court of A ls for the Sev-

enth Circuit y affirm the Courts t

of summary judgment, when the Court found the

petitioner's tons of the denial of his constitu-

— rights were meritless and bordered on the frivo-

PARTIES

The respondents object to the petitioner’s List of

Parties to the extent it is incomplete. All parties to this

action should be found on the caption as listed on the

petitioner's original complaint filed in the United States

District Court for the Southern District of Indiana, Indi-

anapolis Division. The petitioner's caption as found in his

petition is in error in that it excludes “Gale Pitman, as

board member and individually.”

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......ccccccccccccccccess i

/// AAC c ii

TABLE OF AUTHORITIES.............. eee, iv

, kedevsevedeeencens i

JURISDICTION 0. ccccceees PPV 2

STATUTES INVOLVED ................ „

STATEMENT OF THE CASE............... N 3

REASONS FOR DENYING THE WRIT............. 6

A. The Seventh Circuit Properly Found the Peti-

tioner Received Adequate Notice and an Oppor-

tunity to be Heard Prior to His Suspensions and

Dismissal From the Police Force............... 7

B. The Petitioner’s Claim the State Statute is Uncon-

stitutional is Waived for His Failure to Allege the

Argument Below, and the Petitioner Stipulated its

Constitutionality at the District Court Level 15

C. The Petitioner’s Collection of Factual Allegations

is a Repetition of the Conduct He Was Admon-

ished by the Seventh Circuit from Repeating,

Entitling the Respondents to A priate Relief

Pursuant to the Rules of This Court 17

, ĩ ² » „eee am

iv

TABLE OF AUTHORITIES

Page

Cases

Anderson d Bessemer City, 470 U.S. 564, 84 L.Ed.2d

eee eee see 20

i v. Wood, 426 US. 341, 96 S.Ct. 1074, 48

r, ³om oc ébeee 8

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28

, one cue buneaveees can

Brasslett v. Cote, 761 F2d 827 (ist Cir. 1985)..... 9. 13

Brown v. ia Department of Revenue, 881 Fd

r a 8

Cleveland Board of Education v. Loudermill, 470 U.S.

532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)

0 8, 9, 12, 13, 14

Crowden v. Lash, 687 F.2d 996 (7th Cir 1982) ........ 16

D’ Acquisito d Washington, 750 a 342 (N.D.111.

%%% Gand cneceukaki 4

Daniels v. Williams, 474 U. 8. 327, 106 S.Ct. a aA

III 20

Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82

L.Ed.2d 139 (1984), wn denied 468 US

EPE 1

Dusanek v. Hannon, 677 F2d 538 (7th Cir. 1982),

cert. denied 459 U.S. 1017, 103 S.Ct. 379....... 21

Fetner v City of Roanoke, 813 F.2d 1183 dim Cir

Fraternal Order of Police ‘tel No. 5 v. Tucker, 868

F.2d 74 (3rd Cir. 1989)... * cccccee Gy Oe We a

*

TABLE OF AUTHORITIES - Continued

Goldberg v Kelly, 397 U.S. 254, 25 L.Ed.2d 287, 90

S.ct. 1011 a . eee „eee eee „e „eee ee „eee „eee e e e 0 0 ©

Goodman d Lukens Steel Co, 482 U.S. 656, 107 S.Ct.

2617, 96 L.Ed.2d 572 d

Graver Tank and Man ing Co. ct. Linde Air

Products, 336 US. „M L.Ed. 672 (1948) ..

Hewitt vo. Helms, 459 U.S. 460, 103 S.Ct. 864, 74

L.Ed.2d 675 (1983) eeeeeeeeeeeeeneeeeeeeeeeeeeee « 5

Kelly o Smith, 764 F2d 1412 dim Cir 165

“Ea we Gas & Water Division 9 Craft, 436

U. S.Ct. 1554, 56 L. Ed ad 30 (1976) .......

Olim v. Wakinekona, 461 US. ee 1748, 75

L.Ed.2d 813 (1983)......

Panozzo v. Rhoads, 711 FSupp. 941 Nom 1989) ..

Parrott v. , 451 US. 527, 101 S.Ct. 1908, 68

L.Ed.2d (1981) „

v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33

1 420 570 (1972) eseeeeeeeeeeeeeeeeeeeeeeeeeee «

Pitts vw. Unarco Industries, Inc. 712 F2d 276 1

e

Rogers v. Lodge, 458 U.S. 613, 73 LEd.2d 1012, 102

t 3272 (1982) eeeeeee eeeceeees

16

15

Smith v. Town of Eaton, 910 F2d 1469 (7th Cir. 1990) _ passin

Statutes ano RT

Indiana Code § 36-8-3-4 (1981)..........

Supreme Court R 29.4(c) ..

vi

TABLE OF AUTHORITIES - Continued

Page

42 United States Code § 1983.................. 2, 3, 20

28 United States Code § 125(l))7)ʒ 2

Supseme Coust BR. D4... .. 2

Orner AUTHORITIES

Asmat... SE Alt ese 20

Asmet., Ta L.ED GO GR: < 060s sccwecetcaeuceet 15

No. 90-1348

=

In The

Supreme Court of the United States

October Term, 1990

*

BRIAN IL. SMITH,

Petitioner,

vs.

TOWN OF EATON, INDIANA, Town Board of Eaton

and its Members, Ronald Haggard, as board

member and ind vidually, Gale Pitman, as board

member and individually, David Williams, as board

member and individually, Andy Cavanaugh, as board

member and individually, Charles Hicks, as board

member and individually, Don Mitchell, as board

member and ——＋ Jimmie Vance, as

Town Marshall and individually,

and Does I thru 5,

Respondents

+

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

a)

BRIEF IN OPPOSITION OF

RESPONDENTS TOWN OF EATON, ET AL.

*

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 910 F.2d 1469 (1990),

1

2

and is printed in the Appendix hereto, infra, pages A-1

through A-10. The judgment, findings of fact and conclu-

sions of law of the United States District Court for the

Southern District of Indiana, Indianapolis Division, Judge

Sarah Evans Barker presiding, is reproduced in the

Appendix attached to the Petition for Writ of Certiorari.

*

JURISDICTION

The petitioner correctly states the jurisdiction of this

petition for review is found at 28 U.S.C. § 1254(1) as toa

petition by a party to a civil case after rendition of judg-

ment or decree in the Court of Appeals. However, the

petitioner did not state the provisions of Supreme Court

Rule 10.1 upon which he relies in his petition, and

respondents respectfully submit this petition falls within

none of the reasons innumerated in R 10.1.

*

STATUTES INVOLVED

The original action filed by the petitioner in the

United States District Court was one pursuant to 42

U.S.C. § 1983, in addition to general allegations of viola-

tions of his procedural and substantive due process and

equal protection rights as found in the Fourteenth

Amendment to the United States Constitution.

The petitioner inaccurately provides the Court in his

Petition an incomplete text of the statute the petitioner

claims to be violative of the United States Constitution,

leaving out pertinent portions of the statute relied upon

3

by the parties below. The petitioner also has not provided

proof of service upon the State of Indiana Office of the

Attorney General, pursuant to Supreme Court R. 29.4(c)

The statute involved, LC. S 36-8-3-4, is reprinted in its

entirety in the Appendix hereto, infra, at pages A-11 to

A-16.

*

STATEMENT OF THE CASE

The petitioner's Statement of the Case is replete with

inaccuracies and misstatements of the record below and

the history of this action. Therefore, the respondents are

compelled to submit an accurate version of the history of

the case herein.

This action was originally filed by the petitioner on

May 6, 1988, in the United States District Court for the

Southern District of Indiana, Indianapolis Division, pur-

suant to 42 USC. § 1983. The complaint was actually

filed one day after the petitioner had been dismissed as a

police officer by the Town Board of the Town of Eaton,

Indiana. The petitioner's dismissal was a culmination of

several disciplinary actions beginning in December of

1987.

Early in December of 1987, Brian Smith was notified

by the Town Marshall of the Town of Eaton of a hearing

to be held on December 29, 1987, regarding a ten (10) day

suspension as a result of Smith's altercation with a fellow

police officer. After the hearing at which Brian Smith was

present, the Town Board approved a suspension of Smith

for ten (10) days between January 15, 1988, and January

29, 1988, pursuant to LC. S 36-8-3-4 (b) and c

On December 18, 1987, the petitioner was again noti-

fied by the Town Marshall of additional disciplinary

action, unrelated to the prior incident, for conduct

unbecoming an officer. The action taken against the peti-

tioner was a forfeiture of certain days off. Neither the

Court of Appeals nor the petitioner confronted this issue

of forfeiture below as a denial of the petitioner's due

process rights under the Constitution. Instead, the peti-

tioner concentrated on the two suspensions and his dis-

missal in his due process arguments. Smith's petition

before this Court does not explain how his forfeiture of

days off implicated a protected property interest. Further-

more, the petitioner failed to establish such a right at the

District Court level, as evidenced by the Court's order

found in the petitioner's appendix, at finding Number

Six.

On February 24, 1988, the Town Board of Eaton,

Indiana, conducted another hearing to investigate further

complaints against Brian Smith's conduct as a police offi-

cer. The suspension was effective for the period of Febru-

ary 19, 1988, through March 4, 1988, pursuant to LC

§ 36-8-3-4 (b) and (c. The petitioner received notice of

this hearing, but apparently chose not to attend. Smith e

Town of Eaton, 910 Fd 1469, 1472 (7th Cir. 1990); Appel-

lant’s Brief below, p. 7

In a general session of the Town Board of Eaton,

Indiana, held on May 4, 1988, it was decided an Emer-

gency Session was necessary in order to discuss addi-

tional complaints against Brian Smith filed by local

citizens. The petitioner was notified, notice was pub-

lished in the local newspaper, and the Emergency Session

was conducted on May 5, 1988. Not only was Brian Smith

present at said meeting, but he was also represented by

counsel, Mr. Thomas Margolis. At that meeting, the com-

plaints against Brian Smith were discussed and the Board

voted to dismiss the petitioner from his duties for con-

duct unbecoming an officer pursuant to LC. § 36-8-3-4.

The very next day, the petitioner and his attorney filed a

complaint in the United States District Court in Indi-

anapolis, containing fifty (50) rhetorical paragraphs and

seeking $7,000,000.00 in compensatory and punitive dam-

ages.

The Town of Eaton filed for summary judgment in

the United States District Court, and a hearing was held

on June 21, 1989. In that hearing, counsel for petitioner

stipulated and agreed he was not contending the appeals pro-

cess provided for in J. C. § 36-8-3-4 was constitutionally inade-

quate. (Appendix to Petition for Writ, at p. A-15). Instead,

the petitioner admitted on several occasions to the Court,

Judge Sarah Evans Barker presiding, his complaint was

based upon the alleged failure of the Town Board of Eaton,

Indiana, to follow the prescribed statutory procedures. As a

result, the District Court found the petitioner's complaint

failed to state claims for violations of his due process or

equal protection rights. Furthermore, the Court added the

State of Indiana had properly safe-guarded Brian Smith's

constitutional rights by codifying constitutionally ade-

quate requirements for notice, opportunity to be heard,

and post-deprivation remedies.

The petitioner appealed the grant of summary judg-

ment to the United States Court of Appeals, Seventh

Circuit, and oral argument was presented on June 11,

1990. In affirming the District Court’s grant of summary

judgment, the Seventh Circuit found the petitioner's

alleged violation of procedural due process was the only

allegation warranting some attention. The Court found

the petitioner had been provided adequate notice and

opportunity to be heard prior to each suspension and his

dismissal from the police force. The Court of Appeals also

affirmed the District Court's finding Brian Smith either

admitted the adequacy of notice and an opportunity to be

heard as found in the record, or presented no competent

evidence to the contrary. Furthermore, the Court found

Brian Smith was either present at the Town Board meet-

ings in question and participated in the discussions, or

had received adequate notice of those meetings. The peti-

tioner’s allegations of substantive due process and equal

protection violations were deemed by the Seventh Circuit

to “border on the frivolous” and were dismissed quickly

The Court thereupon admonished the petitioner's attor-

ney for wasting the Court's valuable time and sanctioned

the attorney $500.00. The petitioner has now petitioned

this Court for a writ of certiorari from the judgment of

the Seventh Circuit Court of Appeals.

—

REASONS FOR DENYING THE WRIT

The petitioner presents a loosely supported and ram-

bling argument that does not support any reason for the

issuance of a Writ. His three questions presented for

review in his Petition are actually excessively worded

allegations the Seventh Circuit misapplied the facts to the

law, and that is simply not the case. In support of the

Writ, the petitioner repeats the numerous facts that were

presented to both the District Court and the Seventh

Circuit, and both Courts found those facts to warrant

outright summary judgment. The petition is different

from the proceedings below in that some of the argu-

ments are being presented for the first time, and therefore

should be deemed waived by the petitioner. In fact, his

claim of the unconstitutionality of the applicable state

statute is moot for both his failure to make this allegation

im the Courts below, and his stipulation at the District

Court level that the statute was constitutional. The find-

ing of the Seventh Circuit was entirely substantiated by

the record below, and the petitioner presents no basis to

in the decision was clearly erroneous or such a depar-

ture from the accepted norms of judicial proceedings as

to warrant the Writ.

A. The Seventh Circuit Properly Found the Petitioner

Received Adequate Notice and an Opportunity to

be Heard Prior to His Suspensions and Eventual

Dismissal From the Police Force.

A detailed and exhaustive examination of the peti-

tiomer’s claims of procedural due process violations was

conducted by both the District Court and the Seventh

Circuit in their attempts to uncover the arguments hidden

by the petitioner's poorly presented briefs and oral argu-

ments. Both courts also examined the application of those

facts to constitutional standards, and both courts con-

cluded summary judgment was necessary. The same

examination of facts and law as conducted by the lower

Courts will now be summarized herein.

The examination into the existence of a property

interest initially looks to an independent source such as

state law, legislation, rules or contracts. State sources,

however, do not in and of themselves decide whether a

property interest has been created. Olim v. Wakinekona,

461 U.S. 238, 103 S.Ct. 1748, 75 L.Ed.2d 813 (1983); Hewitt

v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L. Ed. 2d 675 (1983).

Federal constitutional law determines whether such an

interest rises to the level of a “legitimate claim of entitle-

ment” protected by the due process clause. Mempnis

Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct.

1554, 56 L.Ed.2d 30 (1976); Bishop v. Wood, 426 U.S. 341, 96

S.Ct. 2074, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408

U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Brown v.

Georgia Department of Revenue, 881 F.2d 1018 (11th Cir.

1989). Upon examination of l C. § 36-8-3-4, which requires

cause to be shown before a tenured police or fire fighter

can be dismissed, the Seventh Circuit stated below “we

see no reason to question that Mr. Smith had a property

interest in his employment.” Smith v. Town of Eaton, et al.,

910 F2d 1469, 1471 (7th Cir. 1990). The respondents cer-

tainly agree with the learned Court's decision that a

property interest existed.

Therefore, Smith could not be deprived of his job

without due process of law, which this Court has found

on numerous occassions to require in the least a “preter-

mination opportunity to respond, coupled with post-ter-

mination administrative procedures.” Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84

L.Ed.2d 494 (1985); Fraternal Order of Police Lodge No. 5 5

Tucker, 868 F.2d 74 (3rd Cir. 1989); see also Boddie v. Con-

necticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

The pretermination opportunity to respond incorporates

the requirements of oral or written notice, an explanation

of the employer’s charges against the employee, and an

opportunity to be heard or to present the employee's side

9

of the story. Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012,

82 L.Ed.2d 139 (1984), rehearing denied 468 U.S. 1226;

Cleveland Board of Education v. Loudermill, 470 U.S. at 546,

105 S.Ct. at 1495; Fraternal Order of Police Lodge No. 5 v.

Tucker, 868 F.2d at 79; Brasslett v. Cota, 761 F.2d 827 (ist

Cir. 1985). Of particular importance to the case at hand is

the Supreme Court's recognition that the pretermination

hearing need not be elaborate and can be informal, while

providing less than a full evidentiary hearing. Loudermill,

470 U.S. at 544, 545, 105 S.Ct. at 1494, 1495; Smith v. Town

of Eaton, 910 F.2d at 1472; Tucker, 868 F.2d at 79.

The Court in Loudermill went on to explain why the

pretermination hearing need not be elaborate. A full evi-

dentiary hearing is not required in certain circumstances

where there are protections against possible mistaken

decisions in the pretermination hearing, and post-termi-

nation review procedures are in place and available to the

employee.' “When a discharged employee may receive a

post-termination hearing to review adverse personnel

action, the pretermiantion hearing need only be extensive

enough to guard against mistaken decisions.” Loudermill,

470 US at 545, 105 S.Ct. at 1495. In such a situation, it is

adequate if the pretermination hearing affords the

employee a chance to make “plausible arguments that

might . prevent [the] discharge.” Id. at 544, 105 S.Ct. at

1494; see also, Tucker, 868 F.2d at 79. This is the reasoning

' The only case in which a full pretermination evidentiary

hearing was required can be found in Goldberg v. Kelly, 397 US

254, 25 L.Ed.2d 287, 90 S.Ct. 1011 (1970), which involved the

termination of welfare benefits. See also Brasslett 9 Cota, 761

F.2d 827, 836 (Ist Cir. 1985), at footnote 8.

10

relied upon by the respondents below and ruled upon by

the courts. The writer of the petitioner's brief in support

of a writ, who was not associated with this litigation until

recently, makes the blind accusations the respondents

“offered no evidence of oral or written notice” as to

certain hearings, (Petition, p. 11), and that respondents

argued pretermination notice and opportunity to be

heard was “irrelevant,” (Petition, p. 12). The petition

before the Court is obviously written by one unaware of

the arguments presented below, and the treatment

afforded to due process claims by this Court and the

Seventh Circuit.

The petitioner's arguments in favor of the issuance of

a Writ are simply a rehashing of facts picked selectively

from the record below. Brian Smith and his counsel are

repeating the same arguments heard in the Courts below

to convince the Court to accept their view, and reject the

findings of the Courts below, that the notice and oppor-

tunity to be heard afforded to this petitioner was some-

how insufficient. In the petition, it is claimed no notice

was given except prior to the first hearing on December

29, 1987, and that at no time was Smith afforded a mean-

ingful opportunity to respond to the charges against him

at any of the hearings. (Petition for Writ, p. 11). These are

the same conclusory assertions the petitioner made in the

Courts below. The petitioner goes on to conclude the

Seventh Circuit's ruling on notice was a “clearly erro-

neous, unsupported finding.” (Petition, pp. 16, 17).

The Seventh Circuit examined the record in detail

and found the District Court's ruling that both notice and

an opportunity to be heard had been adequately pro-

vided to the petitioner was not clearly erroneous. Firstly,

11

a formal, written notice was received by the petitioner

prior to the December 29, 1987, hearing. He not only

received the notice, but he attended the hearing, (Peti-

tion, p. 19), and participated in that meeting. See Smith v.

Town of Eaton, 910 F.2d at 1472, footnote 5. Both the

District Court and the Seventh Circuit found this to be

true, and the petitioner “presented no argument that

would allow us to call this determination clearly erro-

neous.” Id., 910 F.2d at 1472. As for his second suspension

of ten (10) days, the Seventh Circuit pointed out the

petitioner admitted in his Appellant Brief that Smith had

received notice. Id. If Smith chose then not to attend the

hearing or otherwise dispute the disciplinary action, he

can not now claim the state failed to provide him due

process of law in not providing a meaningful opportunity

to be heard.

Finally, as for his dismissal hearing, the record

clearly stated, and both Courts below found accordingly,

that Smith received adequate notice prior to the May 5,

1988, hearing at which time he was dismissed from the

police force. The Seventh Circuit again found the peti-

tioner did not show any reason to conclude this was an

erroneous finding, because the petitioner simply alleged

in conclusory fashion he was “not able to defend himself

prior to any of the numerous disciplinary actions and

ultimately his termination.” Id., at footnote 5. Not only

did the minutes of the May 5th meeting show Smith was

present at the hearing, but the appellant's brief in the Sev-

enth Circuit provided proof Mr. Smith was both there and even

represented by counsel, who also participated in the hearing.

12

(Appendix of Appellate Brief, p. 21). (The legal represen-

tation was obviously ongoing, due to the fact an exten-

sive, fifty-paragraph complaint alleging seven million

dollars in damages was filed in federal district court in

Indianapolis, fifty-five miles away, the very next morn-

ing.) Without even mentioning the fact the petitioner was

represented by legal counsel at his dismissal hearing,

both the District Court and the Seventh Circuit concluded

the petitioner “received adequate procedure to satisfy

constitutional requirements of notice and an opportunity

to be heard.” Smith v. Town of Eaton, 910 F.2d at 1472. The

Petition for Writ of Certiorari now before this Court

provides no evidence of an obvious and exceptional

showing of error in this finding as to warrant this writ.

By further examining what is required by due pro-

cess in a pretermination hearing it becomes even more

clear the ruling of the Seventh Circuit is in accord with

the decisions of this Court. As the petitioner claims, the

notice and opportunity to be heard must be “meaning-

ful,” and Loudermill defined meaningful as “sufficient

explanation of the employer's evidence to permit a mean-

ingful response.” See Fraternal Order of Police Lodge No. 5

v. Tucker, supra, 868 F.2d at 80. At no time in the proceed-

ings below, and no where in the Petition for Writ of

Certiorari, does the petitioner allege he was unaware of

the allegations before him. Prior to each hearing, the

petitioner knew the circumstances warranting discipline,

whether it was physical force against a fellow officer,

unauthorized use of police property, or complaints

received from Eaton citizens. Both lower courts found the

record to show the petitioner was present at the hearings

or received notice of them, aware of the charges against

13

him, and even at one point, represented by counsel before

the Town Board of Eaton. Nonetheless, the petitioner

continues to make the blanket charges that he was not

notified in a “meaningful” way, and denied a “meaning-

ful” opportunity to defend himself.

In his petition Smith admits other decisions have

found notices, less substantial than those he received

from. the respondents, to be constitutionally adequate.

Petition at p. 29; See Kelly v Smith, 764 F.2d 1412 (11th Cir.

1985); Brasslett v Cota, 761 F.2d 827 (ist Cir. 1985); Panozzo

v. Rhoads, 711 FSupp. 941, 943 ND im 1989). As the court

stated in Panozzo:

“courts have affirmed the constitutionality

of a pretermination hearing where the employee

received notice of the charges against him at the

hearing. (Citations omitted) . If this sort of on-

the-spot, instantaneous notice does not offend

due process, then surely the advance

notice constitutional muster Pan-

ozzo, 711 FESupp at 943.

Therefore, other circuits faced with less substantial notice

to an employee have uniformly concluded those notices

do not offend due process. The petitioner provides no

support for his general allegation his notices, that were

received prior to any pretermination hearing and suffi-

cient enough to allow his presence and retention of legal

counsel, were somehow constitutionally inadequate even

though the federal courts have uniformly found less sub-

stantial notice to be sufficient.

As stated above, Loudermill explains the pretermina-

tion hearing need not be elaborate when the Court can

identify current, existing post-deprivation procedures

14

that will operate to further protect due process rights of

the employee. I. C. § 36-8-3-4 provides a simple process

whereby disciplinary matters may be appealed to the

local county superior court within thirty days of the

action. Both the petitioner and his attorney were

reminded of this appellate procedure at their disposal at

the May 5, 1988, hearing. (Appellant's Brief below,

Appendix at p. 21). There is no need to have a full

evidentiary pretermination hearing when the employee is

guaranteed judicial review prior to the deprivation. This

is because the pretermination hearing “should be an ini-

tial check against mistaken decisions - essentially a deter-

mination of whether there are reasonable grounds to

believe that the charges against the employee are true

and support the proposed action.” Loudermi!!, 470 U.S.

545-546, 105 S.Ct. at 1495; D’Acquisito v. Washington, 750

F.Supp. 342, 348 (N. D. Inn. 1990). Contrary to the peti-

tioner’s claim, the respondents have maintained this

argument throughout this litigation, and have not argued

the pretermination procedures were “irrelevant.”

Both the District Court and the Seventh Circuit was

cognizant of the requirements of due process and went to

extreme measures to fairly and completely apply those

requirements to the confusing facts brought before them

by the petitioner. The petitioner has failed to show any

obvious and exceptional error by the Court of Appeals.

See Goodman v. Lukens Steel Co., 482 U.S. 656, 665, 107

S.Ct. 2617, 96 L.Ed.2d 572 (1987); Graver Tank and Manu-

facturing Co. v. Linde Air Products, 336 U.S. 271, 275, 93

L.Ed. 672 (1948). The findings of fact of the District Court,

as approved by the Court of Appeals, should not be set

aside without being shown to be clearly erroneous. See

15

Rogers v. Lodge, 458 U.S. 613, 73 L.Ed.2d 1012, 102 S.Ct.

3272; Annot., 72 L.Ed.2d 890 (1981). By bringing to this

Court the same blanket, conclusory allegations that the

Seventh Circuit admonished the petitioner never to

repeat, the petitioner has woefully failed to present any

legitimate reason whatsoever for this Court to find the

Seventh Circuit’s findings were erroneous and unsup-

ported by any fact.

B. The Petitioner's Claim the State Statute is Uncon-

stitutional is Waived for His Failure to Allege the

Argument Below, and the Petitioner Stipulated its

Constitutionality at the District Court Level.

Brian Smith’s petition for writ of certiorari includes

as one of the questions presented for review, the follow-

ing:

Whether a statute which requires no hearing

before a tenured police officer with a statutory

property and liberty interest in his job is sus-

pended for 10 days violates the due process

clause of the United States Constitution.

This alleged issue presented by the petitioner is feck-

less and warrants little response. The allegation is raised

for the first time in the Petition for Writ of Certiorari. At

no time before the Seventh Circuit Court of Appeals did

the petitioner raise a constitutionality issue of the state

statute in question or any other rule. At no time before

the District Court did the petitioner raise a constitu-

tionality question. In fact, the District Court went to

extreme efforts to guarantee the petitioner did not claim

the procedures provided him were unconstitutional, by

going so far as to ask him on more than one occasion. The

16

findings of fact and conclusions of law adopted by the

District Court document the stipulations made by the

petitioner in the hearing on the respondents’ motion for

summary judgment. (Appendix to Petition, at p. A-15).

The petitioner agreed and stipulated he was not alleging

the processes provided for in LC. § 36-8-3-4 were consti-

tutionally inadequate, but that he instead was simply

alleging the respondents had not followed those pro-

cedures provided for in LC. § 36-8-3-4.

Again at the Court of Appeals level, the petitioner

did not allege any portion of LC. § 36-8-3-4 as pro-

cedurally inadequate under constitutional standards.

With no constitutional inadequacies of statutes or rules

before the Seventh Circuit, no treatment of this issue will

be found in the Court's ruling. The respondents would

simply repeat the well known rule issues not presented in

the court below may not be presented for the first time on

appeal. Pitts v. Unarco Industries, Inc, 712 Fd 276, 278

(7th Cir. 1983); Crowden v. Lash, 687 F.2d 996, 1008 (7th

Cir. 1982).

It should be noted the petitioner has failed to notify

the Attorney General of the State of Indiana of his allega-

tion an Indiana State statute is unconstitutional, pursuant

to Supreme Court Rule 29.4(c), which states:

In any proceeding in this Court wherein the

constitutionality of any statute of a State is

drawn into question, and the State sor any

agency, officer or emplovee thereof is not a

party, the initial pleading, motion, or paper filed

in this Court shall recite that 28 US.C. Sec

2403(b) may be applicable and shall be served

upon the attorney general of that State

17

It is also noteworthy the petitioner includes this issue

as the second question presented for review, and yet no

substantive argument of any merit is presented in his

petition. He combines the issue of the statute's alleged

inadequacy with his third issue on appel which is im-

ply a reiteration of the first issue concerning meaningful

notice. In his argument on the second issue on appeal,

(Petition, pp. 30-36), the petitioner repeats his rambling

claims that he was not afforded meaningful notice or an

opportunity to be heard, and provides case law which

establishes due process rights which the respondents

enumerate herein. He concludes the argument on the

second issue alleging LC. § 36-8-3-4 is unconstitutional,

by stating “he was not able to defend himself at any of

the hearings. The Court of Appeals, by its decision,

clearly gave no weight to the obvious implications of the

Petitioner's assertions that he was denied a meaningful

hearing in each of three instances.” (Petition, pp. 35, 36)

The respondents submit not only did the petitioner fail to

raise any issue of constitutionality of state rules or stat

utes in the courts below, but he stipulated to their ade-

quacy and has provided no argument in support of the

issue whatsoever in the petition now before the Court

C. The Petitioner's Collection of Factual Allegations is

a Repetition of the Conduct He Was Admonished

by the Seventh Circuit from Repeating, Entitling

the Respondents to Appropriate Relief Pursuant to

the Rules of This Court.

The several unsupported and frivolous allegations

contained in the petition for writ of certiorari warrant

attention to afford the Court a more accurate rendition of

the proceedings below. The most untenable argument

presented has been discussed above, that the issue of the

constitutionality of LC. § 36-8-3-4 being raised here for

the first time. Similarly, the petitioner includes an affi-

davit of a “David Withers” in his appendix. (Petition, pp

A-33 to A-35). He includes the conclusions stated in that

affidavit in the Statement of Facts. The respondents have

not seen this affidavit prior to the filing of this petition,

and submit it is worthy of absolutely no consideration by

this Court. The “affidavit”, roughly reproduced in the

petition, is not signed nor dated, and no reference to the

affidavit is made to the record of the proceedings below.

The petitioner makes numerous falsehoods within

the body of his arguments that necessitate comment. As

explained above, the respondents did not fail to offer any

evidence or oral or written notice of the hearings on the

petitioner's suspensions and dismissal, as alleged in the

petition at page eleven. Nor did the respondents argue

below that pretermination hearings were “irrelevant.”

(Petition, p. 12). The respondents certainly understand

the premier importance of constitutional pretermination

procedures. The decisions of this Court, however, do

examine procedures available both prior to and after

termination. The lower courts in this matter both found

the pretermination procedures afforded to the petitioner

to be adequate, therefore making the existence of post-

termination judicial review relevant to the question

whether due process was denied this petitioner. It obvi-

ously was not.

Perhaps the most blatantly misleading representation

made by the petitioner is found on pages 13-14 of the

petition. Nowhere in the Seventh Circuit's opinion is

19

there a statement that the “Court of Appeals held that the

District Court's findings of fact were insufficient to dis-

pose of the issues presented on appeal.” This is an out-

right false reading of the Seventh Circuit's opinion. The

petitioner goes on to claim that because of the District

Court's insufficient findings, “[t}]he United States Court

of Appeals was faced with a ‘particularly difficult situa-

tion.’ ” (Petition, p 14). The reference to the Seventh

Circuit's ruling, when read in its entirety, shows the

Court was faced with a difficult situation as d result of the

petitioner's argument, not the District Court's rulings:

We see no functional difference between a

brief containing a mere reference to a

legal argument and one with a low, incoher-

ent ‘argument’ that spans twenty-five pages, the

situation presented here. In both instances, the

court is frustrated in performing its function of

review and evaluation of the judgment before it.

Indeed, when the entire brief exhibits lack of

attention, we are confronted with a particularly

difficult situation.

Smith v. Town of Eaton, 910 F.2d at 1471.

Throughout the petition, Smith alleges the minutes of

the meetings of the Town Board of Eaton fail to mention

the details of the notices, including their content and how

they were given to Smith. He does not explain why the

Board’s minutes are required to state these things and

how their failure to state these things violates his due

process. In fact, his entire argument relative to one hear-

ing, the February 24, 1988 hearing on pages 21 and 22 of

the petition, is that the minutes do not state anything

about the notice given to Smith. The petitioner at no time

denies notice was given, nor that he was aware of the

hearing and the charges against him. He was completely

aware of both the hearing and the charges against him.

He simply chose not to attend. Now he claims because of

this decision he was denied due process.

Another falsehood may be found on page thirteen of

the Petition for Writ of Certiorari, where the petitioner

alleges the District Court merely rubber-stamped the

opponents proposed findings of fact. Although the Court

ordered the respondents to submit proposed findings,

substantial changes were made by the Court in its final

order. Such practice has been found both acceptable and

common. Anderson d Bessemer City, 470 US. 564, 84

. Ed ad 518, 105 S.Ct. 1504 (1985); Annot., L Ed 2d 868

(1973).

Finally, the petitioner makes a fleeting allegation the

District Court misapplied the decision of Parrott U Taylor,

451 US. 527, 101 S.Ct. 1908, 68 L.Ed. 2d 420 (1981), over-

ruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106

S.Ct. 662, 88 L.Ed.2d 662 (1986), and that a conflict

between circuits exists. (Petition, pp. 26, 29). The peti-

tioner does not explain why he feels the application of

Parrott was erroneous. The reliance on Parrott by the

District Court was proper, because Parrott does not

require the exhaustion of administrative remedies prior

to bringing a 42 U.S.C. § 1983 action in federal court A»

the court explained in Fetner v City of Roanoke, 813 Fld

1183 ann Cir. 1987):

Parrott . stands for the proposition that a

plaintiff may sue only in state court if he fails to

state a ral due process claim under sec-

tion 1983. Unlike an exhaustion requirement,

which is based upon principles of comity, the

— *

21

Parrott analysis is based upon the concept that

there is no constitutional violation if a plaintiff

has not been deprived of a protected interest

without due process of law.

4. 813 F.2d at 1185, footnote 5. This is the reasoning

relied upon by the District Court, which also cited the

decision of Dusanek v. Hannon, 677 F.2d 538 (7th Cir.

1982). In Dusanek, the court found, after noting the

administrative procedures provided for both a preter-

mination hearing and post-termination resort to judicial

review, that “the state cannot be held to have violated

due process requirements when it has made procedural

protection available and the plaintiff has simply refused

to avail himself of them.” Id., 677 F.2d at 543. Therefore,

the respondents submit to the Court the lower court's

reliance upon applicable case law was proper, and the

petitioner has failed to explain the legal reasoning of his

discontent.

Finally, the alleged conflict between circuits is no

conflict at all. Again, in a passing reference, the petitioner

claims the Eleventh Circuit found in Fetner that a thirty

minute prior notice of a pretermination hearing was

insufficient, while several other circuits have held less

than twelve hours’ notice to be sufficient. (Petition, p. 29).

A closer reading of Fetner, however, shows the Court

found the violation of due process was the result of the

lack of a written notice that presented the reasons for his

termination, and the lack of a pretermination hearing.

The timing of the notice did not enter into the Court's

discussion. Therefore, the respondents are aware of no

conflict between the Circuits.

22

The Petition for Writ of Certiorari represents the

third time this petitioner has presumed a right to belabor

the courts with the same argument the lower courts have

labeled “meritless” and borderlingl on the frivolous.”

This petition also represents the petitioner's decision to

ignore the Seventh Circuit's admonition that the repeti-

tion of meritless arguments wastes the court's time and

“that such performance is not to be repeated. Any such

repetition may well result in suspension from practice

before this court.” Smith v. Town of Eaton, 910 F.2d at 1473.

Due to the lack of any competent evidence to show the

ruling below to be erroneous, and the petitioner's con-

tinuing refusal to abide by the Court of Appeals admoni-

tion not to waste the Court’s resources as he has done

here, the respondents respectfully submit they are due

interest and damages pursuant to Supreme Court Rule

42.2.

+

CONCLUSION

As both the District Court and the Seventh Circuit

found after laborious review of the petitioner's crusade

of rambling opinions and distorted facts, there was no

denial of due process here. This Petition demonstrates

nothing that would tend to show the Seventh Circuit's

decision to be clearly erroneous or a departure from the

accepted and usual course of judicial proceedings. The

process afforded to this petitioner did not deny him his

due process, and the state can not be held to have vio-

lated the same when the state has provided adequate pre-

termination procedures and adequate post-termination

23

judicial review. For these reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Davio S. Wat

Counsel of Record

Tooo Irww G

Warner, Wattace, McLaren

& Dacur

400 East Jackson Street

Muncie, Indiana 47305

(317) 288-4425

Attorneys for Respondents

Town of Eaton, Indiana

a _ |

on tai ia

Wm a

‘Zs 7 5

7

>.

A-1

In the

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 89-2563

Brian L. Sun,

Plaintiff-Appellant,

v.

Town oF Eaton, INDIANA,

Town Boarp or EATON AND ITs MEMBERS,

RONALD Haccarp, as board member and

individually, Gate Prrman, as board member

and individually, Davio Wut, as board

member and individually, Ad Cavanauci,

as board member and individually,

Cnarwes Hicks, as board member and

individually, Don Muc, as board member

and individually, Jimmie Vance, as Town Marshall

and individually, and Does 1 thru 5,

Defendants-Appellees.

On Appeal from the United States District Court

or the Southern District of Indiana,

Indianapolis Division.

No. 88 C 531 — Sarah E. Barker, Judge.

ArcueD June 11, 1990 - Dectorp Aucust 21, 1990

Before Cupatty, Fiaum, and Rπ]ů .P , Circuit Judges.

Rivete, Circuit Judge. Brian Smith filed a complaint

under 42 U.S.C. § 1983 on May 6, 1988, the day following

his termination as a police officer for the Town of Eaton.

Mr. Smith’s complaint asserted that his dismissal violated

A-2

his constitutional right to procedural due process, sub-

stantive due process, and equal protection. The district

court granted the defendants’ motion for summary judg-

ment, and Mr. Smith appealed. For the following reasons,

we affirm the judgment of the district court.

We must begin with an observation fortunately not

necessary in too many cases that come before us. The

appellant's brief is rambling, almost totally incomprehen-

sible in its treatment of the issues and legal principles.

The treatment of the factual background of the case is

similarly lacking. It is well established that it is the duty

of attorneys preparing cases for this court to examine

carefully the law and apply it in a cogent fashion to the

facts of the case. Under Rule 28(a)(4) of the Federal Ruies

of Appellate Procedure, counsel is required to present a

brief that contains “the contentions of the appellant with

respect to the issues presented, and the reasons therefor.”

We have noted that this rule requires counsel to present

its arguments in a professional manner. John v. Barron, 897

F.2d 1387, 1393-94 (7th Cir. 1990). Unprofessional presen-

tation of arguments not only is a disservice to this court,

but also “is a disservice to other litigants,” who must wait

while this court is forced to undertake the extra duty of

formulating counsel's arguments. Bonds v. Coca-Cola Co.,

806 F.2d 1324, 1328 (7th Cir. 1986). Especially now, when

the court system is burdened to capacity, and when judi-

cial resources are stretched to the very limit, our fiduciary

duty to the institution we serve and to all the litigants

who come before us requires that we be vigilant in

A-3

enforcing the bar’s responsibility to present issues clearly

and comprehensively.’

This case presents a somewhat different problem

from the cases in which we usually invoke Rule 28. Most

of our cases have involved instances where counsel's

submission is far too abbreviated and sketchy? In those

cases, we have stated repeatedly that this court cannot be

called upon to supply the legal research and organization

to flesh out a party’s arguments. See John, 897 Fd at

1393; Zelazny v Lyng, 853 F.2d 540, 542 n.1 (7th Cir. 1988);

Beard v. Whitley County REMC, 840 F.2d 405, 408-09 (7th

Cir. 1988); Bonds, 806 F.2d at 1328; Sanchez v. Miller, 792

F.2d 694, 703 (7th Cir. 1986), cert. denied, 479 U.S. 1056

(1987). We see no functional difference between a brief

containing a mere passing reference to a legal argument

and one with a shallow, incoherent argument“ that

spans twenty-five pages, the situation presented here. In

both instances, the court is frustrated in performing its

— — — —

' The duty that the bar owes to this court is mirrored by

counsel's duty to represent clients competently. As stated by

Rule 1.1 of the ABA Model Rules of Professional Conduct: “A

lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill,

thoroughness and preparation reasonably necessary for the

representation.”

Ser Bonds v Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir.

1986) (“collateral allusions to a legal issue do not require the

court to decide difficult questions”); cf. United States d White,

879 F.2d 1509, 1513 (7th Cir, 1989) (argument raised in passing

in a footnote deemed waived), cert. denied, 110 S. Ct. 1471

(1990); Lachman v. Illinois Stat Bd. of Educ., 852 F.2d 290, 291 n.1

(7th Cir) (issue is waived due to party's failure to present

substantive argument), cert. denied, 109 S. Ct. 308 (1988).

A-4

function of review and evaluation of the judgment before

it.

Indeed, when the entire brief exhibits lack of atten-

tion, we are confronted with a particularly difficult situa-

tion. We recently have made it clear that we shall not

hesitate to dismiss an appeal due to poorly prepared and

researched briefs. See John, 897 F.2d at 1393 (“[Wle

warned that one day the penalty for a perfunctory appeal

could be dismissal of the appeal. That day has arrived

(citation omitted); cf. Spartacus, Inc. v. Borough of McKees

Rocks, 694 F.2d 947, 950 (3rd Cir. 1982) (Garth, J., dissent-

ing) (dismissal of appeal appropriate when party does

not present a court with complete brief) This case comes

close — very close — to meriting that sanction. However,

because we can glean — albeit faintly — the basic facts and

the general lines of argument from the briefs and record,

we shall deal, as best we can under the circumstances,

with what appear to be the basic contentions of the

appellant.

Brian Smith had been employed as a police officer for

the Town of Eaton since 1986. Beginning apparently in

late 1987, Mr. Smith engaged in several activities that

drew the attention of his supervisors and ultimately

* Other federal appellate courts have recognized that dis-

missal as a sanction for poorly presenting a case on appeal is a

necessary and salutary measure. See Annotation, Sanctions in

Federal Circuit Courts of Appeals, for Failure to Comply with Rules

Relating to Contents of Briefs and Appendixes, 55 A.L.R. Fed. 521,

526-27 (1981) (collecting cases).

A-5

resulted in two suspensions of ten days each to be carried

out in January and February, 1988. On May 5, 1988, the

Town Board of Eaton met to investigate additional com-

plaints against Mr. Smith. At that meeting the Board

vote! to dismiss Mr. Smith for conduct unbecoming a

police officer, pursuant to Indiana Code § 36-8-3-4.

Mr. Smith alleges three constitutional violations to

support his section 1983 claim. First, he argues that he

was denied procedural due process. A due process claim

(procedural or substantive) must be based on a violation

of a protected liberty or property interest. Bishop v. Wood,

426 U.S. 341, 343 (1976). On the record before us, we see

no reason to question that Mr. Smith had a property

interest in his employment that was implicated by the ten

day suspensions and his ultimate dismissal. However,

* Indiana Code § 36-8-3-4(b) permits suspension or dis-

missal of a police officer, but only upon the occurrence of

several enumerated reasons. This court has interpreted a pre-

decessor statute of section 36-8-3-4 to provide a property inter-

est. Parrett v City of Connersville, Ind, 737 F.2d 690, 694 (7th Cir.

1984) (in the context of a dismissal), cert. dismissed, 469 U.S

1145 (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 suspension of less than 10 days

But as the Supreme court has made clear, state procedures do

not in themselves decide the question of whether a property

interest has been created. Olim v. Wakinekona, 461 U.S. 238,

250-51 (1983); Hewitt v. Helms, 459 U.S. 460, 471 (1983). Because

(Continued on following page)

A+

his claim cannot succeed if the procedures he received

were constitutionally adequate. The Supreme Court has

established that an employee possessing a property inter-

est in his job must be given notice and an opportunity to

be heard prior to discipline. Cleveland Bd. of Educ. v

Loudermill, 470 U.S. 532, 547 (1985) (dismissal); see also

Garraghty v. Jordan, 830 F.2d 1295, 1299-1300 (4th Cir

1987) (applying Loudermill to five day suspension); Pesce

v. J Sterling Morton High School, 830 F.2d 789, 793 (7th Cir.

1987) (same); cf. Goss v. Lopez, 419 U.S. 565, 581 (1975)

(requiring notice and opportunity to be heard before

student may be suspended). The Supreme Court has

made clear that this procedure need not be elaborate and

can be satisfied with less than a full evidentiary hearing.

Loudermill, 470 U.S. at 545.

The district court found that Mr. Smith received

notice and a hearing prior to his ten day suspension in

January and his dismissal in May. Mr. Smith has pre-

sented no argument that would allow us to call this

determination clearly erroneous The district court did

(Continued from previous page)

we treat Mr. Smith's suspensions, no matter what their length,

as constituting the deprivation of a property interest, we need

not concern ourselves with counsel's convoluted and at times

incomprehensible time computations.

in conclusory fashion, Mr. Smith asserted in his bricf to

this court that he was “not able to defend himself prior to any

of the numerous disciplinary actions and ultimately his termi-

nation.” Appellant's Br. at 16. The minutes from the town

board's May 5 executive session in which Mr. Smith was for-

mally discharged indicate that Mr. Smith was present. R.18 Ex.

4. In addition, Mr. Smith admits in an affidavit that he was

(Continued on following page)

A?

not make a specific finding that Mr. Smith received notice

before his ten day suspension in February, but Mr. Smith

admits in his brief that he received notice. Appellant's Br.

at 7. We conclude, therefore, that Mr. Smith received

adequate procedure to satisfy the constitutional require-

ments of notice and an opportunity to be heard.

Mr. Smith's other two constitutional arguments bor-

der on the frivolous and will be discussed only briefly

Mr. Smith asserts that the actions by the Town Board of

Eaton violated his substantive due process rights. The

board’s actions of suspending and ultimately dismissing

Mr. Smith are based on several problems related to Mr.

Smith's work, including an altercation with another offi-

cer, failure to follow procedure, and a written complaint

by a citizen regarding Mr. Smith's performance of his

duties. R.18 Ex. 4; R.20 Exs. A & D; R.21 at 4. In the face

of these incidents, Mr. Smith presents no argument nor

alleges any facts that would support a finding that the

board’s action was arbitrary or capricious. We conclude,

therefore, that Mr. Smith's substantive due process claim

has no merit.

Mr. Smith’s equal protection argument similarly is

meritless. He claims that the town board had information

(Continued from previous page)

present at the executive session on December 29, 1987 at which

his first 10 days suspension was discussed, Ri at 5, and the

minutes of that meeting indicate that Mr. Smith participated by

asking questions. Rail Ex. I. While mere presence is not

enough to satisfy the requirement that an employce be given

an opportunity to be heard prior to an action that infringes a

property interest, Mr. Smith never has contended that he was

prevented from speaking at the meetings.

A-8

regarding complaints against two other officers and did

not suspend or dismiss them. Appellant's Br. at 15. An

equal protection claim must be based on “intentional

discrimination against [the plaintiff] because of his mem-

bership in a particular class, not merely [because] he was

treated unfairly as an individual.” Huebschen v. Depart-

ment of Health and Social Servs., 716 F.2d 1167, 1171 (7th

Cir. 1983); see also Gray v. Lacke, 885 F.2d 399, 414 (7th Cir.

1989), cert. denied, 110 S. Ct. 1476 (1990). Mr. Smith does

not allege such class-based discrimination, and therefore

this claim also fails.

V

Having disposed of the substantive issues before us,

we now turn to the matter of sanctions. We must con-

clude that appellant’s counsel’s performance in this

appeal has been substandard. We have been impeded in

our review of the case and valuable time has been lost.

We first admonish counsel that such performance is not

to be repeated. Any such repetition may well result in

suspension from practice before this court. Second, we

fine counsel five hundred dollars ($500), payable within

thirty days to the clerk of this court by certified check

made payable to the Treasurer of the United States. This

fine is imposed both as a deterrent and to compensate the

government, at least in part, for the inordinate expendi-

ture of time required. See Westinghouse Elec. Corp. v.

NLRB, 809 F.2d 419, 425 (7th Cir. 1987) (counsel fined

$1,000 for filing excessively lengthy brief and “correct-

ing” the error by changing the format; this action

required the panel to read two sets of briefs); Farguson v.

MBank Houston, N. A., 808 F.2d 358, 360 (5th Cir. 1986)

($500 sanction payable to clerk imposed sua sponte); Van

A-9

Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986) (fine

of $1,500 imposed as sanction “to regulate the docket,

promote judicial efficiency, and most importantly in this

case, to deter frivolous filings”). This fine is not to be

paid by - or passed on to- the appellant. It is imposed on

counsel alone.

Conclusion

Accordingly, the judgment of the district court is

affirmed. The appellee may recover the usual costs. Sanc-

tions against the appellant’s attorney are imposed.

AWA with SANCTIONS

Cuvany, Circuit Judge, concurring:

This is a troubling case, first, because of the plain-

tift's garbled argument, which the majority describes,

and second, because the defendants rely primarily on the

availability of state appellate procedures to satisfy the

requirements of due process. The district court accorded

some weight to the defendants’ position on this latter

point. As the majority holds, Cleveland Board of Education

v. Loudermill, 470 U.S. 532 (1985), and numerous other

authoritative cases require that for a public employee to

be deprived of his property interest in his job, notice and

a pre-deprivation hearing are required. State post-depri-

vation remedies do not suffice, and their availability is

irrelevant here.

There may indeed be substantial reasons to remand

the case to explore Smith’s apparent claim of denial of

notice and an opportunity for a hearing, but ! find it

difficult to disagree that Smith has failed adequately to

explain the alleged absence of notice and of an

A-10

opportunity for a hearing, which are presumably the gist

of his complaint. Smith loses because of these deficiencies

in the presentation of his case on appeal, not because

state appellate remedies were available.

Fraum, Circuit Judge, concurring.

I concur in the well-reasoned judgment of the Court

on the merits of the case. While the majority opinion

accurately reflects the inadequacies of the appellant's

brief and the attendant frustrations involved in address-

ing such a work product, | would forego the public

admonition and imposition of a pecuniary sanction in this

case. Respectfully, if not regretfully, | have concluded that

the papers and argument presented to this Court may

well be the product of a current lack of capacity for the

appellate craft rather than a formulated indifference to

the standards required of counsel in this Court. | would

simply urge that counsel seriously ponder further per-

sonal preparation and possibly the obtaining of outside

professional assistance before attempting to sail again on

the Seventh Circuit seas.

Furthermore, since this particular unsatisfactory per-

formance is somewhat unique and not representative of

the general level of legal competence displayed before

this Court, a non-published admonishment, in my view,

would have sufficed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

A-11

%6-8-3-4. Disciplinary powers of safety boards in

cities, towns and townships. — (a) This section also

applies to all towns and townships that have full time,

paid police or fire departments. For purposes of this

section, the appropriate appointing authority of a town or

township is considered the safety board of a town or

township. In a town with a board of metropolitan police

commissioners, that board is considered the safety board

of the town for police department purposes.

(b) Except as provided in subsection (m), a member

of the police or fire department holds office or grade until

the member is dismissed or demoted by the safety board.

A member may be disciplined by demotion, dismissal,

reprimand, forfeiture, or suspension upon either:

(1) Conviction in any court of any crime; or

(2) A finding and decision of the safety board

that the member has been or is guilty of any one (1) or

more of the following:

(A) Neglect of duty.

(B) A violation of rules.

(C) Neglect or disobedience of orders.

(D) Incapacity.

(E) Absence without leave.

(F) Immoral conduct.

(G) Conduct injurious to the public peace

or welfare.

(H) Conduct unbecoming an officer

(I) Another breach of discipline.

A-12

The safety board may not consider the political affiliation

of the member in making a decision under this section.

(c) Before a member of a police or fire department

may be suspended in excess of ten (10) days, demoted, or

dismissed, the safety board shall offer the member an

opportunity for a hearing, if demanded. Written notice

shall be given either by service upon the member in

person or by a copy left at his last and usual place of

residence. The notice must state:

(1) The time and place of the hearing;

(2) The charges against the member;

(3) The specific conduct that comprises the

charges;

(4) That the member is entitled to be repre-

sented by counsel;

(5) That the member is entitled to call and

cross-examine witnesses;

(6) That the member is entitled to require the

production of evidence; and

(7) That the member is entitled to have sub-

poenas issued, served, and executed in the

county where the unit is located.

(d) Upon an investigation into the conduct of a

member of the police or fire department, or upon the trial

of a charge preferred against a member of either depart-

ment, the safety board may compel the attendance of

witnesses, examine them under oath, and require the

production of books, papers, and other evidence at a

meeting of the board. For this purpose, the board may

issue subpoenas and have them served and executed in

any part of the county where the unit is located. If a

A-13

witness refuses to testify or to produce books or papers in

the witness’s possession or under the witness’s control,

IC 36-4-6-21 controls to the extent applicable. The proper

court may compel compliance with the order by attach-

ment, commitment, or other punishment.

(e) The reasons for the suspension, demotion, or

dismissal of a member of the police or fire department

shall be entered as specific findings of fact upon the

records of the safety board. A member who is suspended

for a period exceeding ten (10) days, demoted, or dis-

missed may appeal the decision to the circuit or superior

court of the county in which the unit is located. However,

a member may not appeal any other decision.

(f) An appeal under subsection (e) must be taken by

filing in court, within thirty (30) days after the date the

decision is rendered, a verifired [sic] complaint stating in

concise manner the general nature of the charges against

the member, the decision of the safety board, and a

demand for the releif [sic] asserted by the member. A

bond must also be filed that guarantees the appeal will be

prosecuted to a final determination and that the plaintiff

will pay all costs adjudged against the plaintiff. The bond

must be approved as bonds for costs are approved in

other cases. The unit must be named as the sole defen-

dant, and the plaintiff shall have a summons issued as in

other cases against the unit. Neither the safety board nor

the members of it may be made parties defendant to the

complaint, but all are bound by service upon the unit and

the judgment rendered by the court.

(g) In an appeal under subsection (e), no pleading is

required by the unit to the complaint, but the allegations

A-14

are considered denied. The unit may file a motion to

dismiss the appeal for failure to perfect it within the time

and in the manner required by this section. If more than

one (1) person was included in the same charges and in

the same decision of dismissal by the safety board, then

one (1) or more of the persons may join as plaintiffs in the

same complaint, but only the persons that appeal from

the decision are affected by it. The decision of the safety

board is final and conclusive upon all persons not appeal-

ing. The decision appealed from is not stayed or affected

pending the final determination of the appeal, but

remains in effect unless modified or reversed by the final

judgment of the court.

(h) A decision of the safety board is considered

prima facie correct, and the burden of proof is on the

party appealing. All appeals shall be tried by the court.

The appeal shall be heard de novo only upon any new

issues related to the charges upon which the decision of

the safety board was made. The charges are considered to

be denied by the accused person. Within ten (10) days

after the service of summons the safety board shall file in

court a complete transcript of all papers, entries, and

other parts of the record relating to the particular case.

Inspection of these documents by the person affected, or

by the person’s agent, must be permitted by the safety

board before the appeal is filed, if requested. Each party

may produce evidence relevant to the issues that it desire,

and the court shall review the record and decision of the

safety board upon appeal.

(i) The court shall make specific findings and state

the conclusions of law upon which its decision is made. If

the court finds that the decision of the safety board

A-15

appealed from should in all things be affirmed, its judg-

ment should state that, and judgment for costs shall be

rendered against the party appealing. If the court finds

that the decision of the safety board appealed from

should not be affirmed in all things, then the court shall

make a general finding, setting out sufficient facts to

show the nature of the proceeding and the court’s deci-

sion on it. The court shall either:

(1) Reverse the decision of the safety board; or

(2) Order the decision of the safety board to be

modified.

(j) The final judgment of the court may be appealed

by either party. Upon the final disposition of the appeal

by the courts, the clerk shall certify and file a copy of the

final judgment of the court to the safety board, which

shall conform its decision and records to the order and

jdugment [sic] of the court. If the decision is reversed or

modified, then the safety board shall pay to the party

entitled to it any salary or wages withheld from the party

pending the appeal and to which the party is entitled

under the jdugment [sic] of the court.

(k) Either party shall be allowed a change of venue

froin the court or a change of judge in the same manner

as such changes are allowed in civil cases. The Indiana

Rules of Trial Procedure govern in all matters of pro-

cedure upon the appeal that are not otherwise provided

for by this section.

(1) An appeal takes precedence over other pending

litigation and shall be tried and determined by the court

as soon as practical.

A-16

(m) The executive may reduce in grade any member

of the police or fire department who holds an upper level

policy making position. The reduction in grade may be

made without adhering to the requirements of subsec-

tions (b) through (1). However, a member may not be

reduced in grade to a rank below that which the member

held before the member’s appointment to the upper level

policy making position. [IC 36-8-3-4, as added by Acts

1981, P.L. 309, § 52; 1981, P.L. 315, § 2; PL. 104-1983, 8 5;

P.L. 58-1989, § 3.]