Judges divided over whether city attorney could participate in demolition decision

Two judges on the Indiana Court of Appeals Wednesday believed that a Hammond resident didn’t have the benefit of an impartial decision maker in the proceeding that ordered demolition of his property. They believed the city attorney, whose office prosecuted the case, couldn’t sit on the city board that conducted the hearing.

The city of Hammond declared a residence of Hugo Torres uninhabitable. The city conducted a hearing on the order, and the hearing board consisted of the city controller, the city engineer and the city attorney. They ordered the property demolished. The trial court affirmed.

In Hugo Torres v. City of Hammond and City of Hammond Board of Public Works and Safety, 45A03-1306-PL-205, Judges Melissa May and Chief Judge Nancy Vaidik reversed, finding Torres was deprived of his due process right to an impartial decision maker when the Hammond city attorney served on the board at the hearing while an assistant city attorney represented Hammond. The judges cited City of Hammond v. State ex rel. Jefferson, 411 N.E.2d 152, 153 (Ind. Ct. App. 1980) in support of their decision.

Judge Patricia Riley dissented, writing she did not find Jefferson to be controlling. She believed Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind. 1996) provides guidance.

“Giving due consideration to the presumption of honesty, integrity, and conscientiousness, I find that the present situation is free from an appearance of impropriety as Torres fails to point to any evidence — besides the city attorney’s mere presence on the Board — establishing the city attorney’s actual bias or prejudice. Nor was there any actual bias or prejudice on the part of the two other participating members of the Board,” Riley wrote.