COA reverses for Madison man removed from community boards by mayor

A Madison man who was removed from two community boards by the mayor after a heated exchange during a public meeting could still be reinstated after a split Court of Appeals of Indiana found multiple errors were made by the trial court in its legal reasoning for denying him injunctive relief.

Robert Waller was a member of several community boards and commissions in Madison, including the Plan Commission, the Board of Zoning Appeals and the Police Merit Commission, also known as the Police Merit Board.

In December 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. The current mayor of Madison, Bob Courtney, sits on the 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. A “lengthy and argumentative” exchange ensued between Waller and the mayor, in which they discussed the proper name for the Police Merit Commission and whether Waller had previous opportunities to comment on the revision of the SOPs.

About three weeks later, Waller received a letter from the mayor rescinding his appointments to the BZA and the Plan Commission. The letter listed six causes for Waller’s removal, including making false allegations against the mayor and chief of police, as well as demonstrating “combative conduct.”

Waller responded with a complaint alleging his removal was unlawful and moved for a preliminary injunction to reinstate him to both the Plan Commission and the BZA during the pendency of the lawsuit. Supporting his request for injunctive relief, he cited Indiana’s removal statutes as well as the free speech protections of the First Amendment and Article I, Section 9 of the Indiana Constitution.

After the Jefferson Circuit Court denied Waller’s request for an injunction, he appealed pursuant to Indiana Appellate Rule 14(A)(5).

In reversing in Waller’s favor, the majority judges found the removal statute did not affect the case, as “(n)either the Removal Statute nor Indiana Code §§ 36-7-4-218(f) and -906(f) claims to be the exclusive means for removal.”

However, the judges looked at the three tiers of removal for municipal appointees that aid in understanding “for cause” removals. They determined Waller’s removal was improper under State ex rel. Manning v. Mayne, 68 Ind. 285, 1879 WL 5667 (Ind. 1879).

“Using Manning as our guide, we conclude that an appointee removable ‘for cause’ may be removed only for acts or omissions that diminish the appointee’s ability or fitness to perform the duties of the appointment,” Judge Leanna Weissmann wrote for the majority. “Such cause must be sufficient under law and not merely any reason that the removing authority in the exercise of unlimited discretion may deem sufficient.”

The majority judges thus reversed and remanded for further proceedings to determine whether Waller’s conduct at the Board of Public Works meeting diminished his ability or fitness to perform his duties on the Plan Commission and the BZA.

The COA also found multiple legal errors by the trial court as it pertained to the First Amendment claims.

“First, the trial court initially found that ‘the City did not interfere’ with Waller’s First Amendment rights because he was ‘afforded generous time during which he freely expressed himself’ at the meeting of the Board of Public Works. But the City can violate First Amendment rights without interrupting speech,” Weissmann wrote. “For example, in First Amendment retaliation cases, the government has not interrupted speech, but punished it. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).

“… Second, Waller asked the court to apply the test from Pickering, which balances public employees’ First Amendment interests against the government’s interest as an employer in operational effectiveness and efficiency,” Weissmann continued. “The trial court refused to apply this test because Waller was an unpaid appointee rather than a public employee. It erred, however, when it failed to apply an alternative First Amendment analysis in Pickering’s place.”

Because the COA found the trial court erred in its constitutional analysis, it remanded for the lower court to apply the Pickering line of doctrine to determine whether Waller’s free speech claims meet the requirements for issuance of a preliminary injunction.

But Judge Elizabeth Tavitas dissented from the majority opinion in Robert J. Waller v. City of Madison, 21A-PL-928, writing that she would’ve affirmed the denial of a preliminary injunction.

“Although Indiana Trial Rule 52 provides that the trial court shall ‘make special findings of fact without request … in granting or refusing preliminary injunctions,’ the trial court did not address the applicability of the per se standard or the other elements,” Tavitas wrote. “The trial court addressed only the reasonable likelihood of success in its findings of fact and conclusions thereon.

“On appeal, although Waller briefly cites to the per se standard, he fails to explain how the per se injunction standard applies here, and I would find that he waived the issue,” she continued. “Without the per se exception, Waller was required to present evidence on all four elements, which he failed to do. Thus, I would find that the trial court did not abuse its discretion by denying Waller’s motion for a preliminary injunction.

“… Moreover, we must keep in mind that we are reviewing only the denial of the motion for preliminary injunction. We are not, at this time, tasked with addressing the merits of Waller’s petition for judicial review, despite Waller’s efforts to have us do just that.”