City of Gary v. Major

OPINION

BAKER, Judge.

Appellants-defendants the City of Gary; Mayor Scott King, in his official capacity; and the City of Gary Common Council— consisting of Roy Pratt, Marilyn Krusas, Robert White, Mary Brown, Carolyn Roger, Jerome Prince, Alex Cherry, Charles Hughes, and Kyle Allen, Sr., in their official capacities—(collectively, the City) appeal the trial court’s finding of contempt and award of damages in favor of appel-lees-plaintiffs Ronnie Major d/b/a Affordable Towing and Associates; James Mako, Jr., d/b/a Mako’s Towing; and Hewlin Major d/b/a Hugh’s Towing (collectively, Towing Companies). Specifically, the City claims that the January 17, 2001 trial court order was “very vague in directing” the City to establish a procedure for the bidding of towing contracts regarding the police-ordered removal of vehicles or automobile parts within the City. Appellant’s Br. p. 5. Moreover, the City maintains that the award of $150,000 in damages in unsupported by the evidence. Concluding that the trial court exceeded its authority in issuing the January 17, 2001 order, we reverse.

FACTS

The facts reveal that in 1989, the Common Council passed a vehicle towing ordinance over then-Mayor Thomas Barnes’s veto. The ordinance read, in relevant part:

In order to facilitate the removal of vehicles or parts, the City, with authorization from the Common Council may employ personnel and acquire equipment, property and facilities and/or enter into towing contracts as necessary.

Appellant’s App. p. 65 (emphasis added). In 2000, the Common Council established a Towing Committee—a subcommittee within the Common Council itself—that awarded contracts for the police-ordered towing of vehicles. Before the creation of the Towing Committee, the Towing Companies had been performing towing services for the City. After the Towing Committee was formed, however, the City terminated the Towing Companies’ contracts.

On September 7, 2000, the Towing Companies filed a complaint for declaratory judgment, asking the trial court to rule that the towing ordinance was invalid because it allowed the legislative body of the City of Gary to enter into contracts, a function the Towing Companies alleged was reserved for the executive branch. On January 17, 2001, the trial court entered an order wherein it found that the towing ordinance violated statutory proscriptions against the separation of powers ¹ and, thus, was void. Furthermore, the trial court ordered the Mayor of Gary to “establish a fair and equitable procedure for the bidding and awarding of towing contracts to qualified towing entities for the police ordered towing of vehicles.” Appellant’s App. p. 25.

On July 28, 2001, the Towing Companies filed a motion wherein they requested a finding that the City was in contempt for “willfully and intentionally” refusing to comply with the January 17, 2001 order. Appellant’s App. p. 54. Additionally, the Towing Companies requested $150,000 in damages. On November 1, 2001, the May- or of Gary signed an executive order stating that “oversight of the licensing and the conduct of towing businesses within the City of Gary shall be conducted by the designated Chairman of the Towing Committee.” Appellant’s App. p. 67.

The trial court held a hearing on the Towing Companies’ request for contempt on June 12, 2002. The Towing Companies charged that the Mayor’s executive order still left the Towing Committee of the Common Council with the authority to enter into contracts. The City responded that the executive order only allowed oversight of the licensing and conduct of towing companies but did not delegate the contracting authority to the Common Council. On June 27, 2002, the trial court agreed with the Towing Companies’ contention, found the City in contempt, and ordered it to pay the Towing Companies $150,000. The City now appeals.

DISCUSSION AND DECISION

On appeal, the City argues that the trial court’s January 17, 2001 order was vague and that the amount of damages awarded is not supported by evidence in tRe record. The City does not challenge the trial court’s determination that the towing ordinance violated the separation of powers. Thus, though we owe a trial court no deference in matters of law, we adopt this determination as .the law of this case. Tincher v. Davidson, 784 N.E.2d 551, 553 (Ind.Ct.App.2003).

While the City argues that the trial court’s order was vague and that the damages awarded are not supported by evidence in the record, we focus first on our contempt statute:

A person who is guilty of any willful disobedience of any process, or any order lawfully issued:

(1) by any court of record, or by the proper officer of the court;

(2) under the authority of law, or the direction of the court; and

(3) after the process or order has been served upon the person;

is guilty of an indirect contempt of the court that issued the process or order.

Ind.Code § 34-47-3-1 (emphasis added). The determination of whether a party is in contempt of court is a matter within the sound discretion of the trial court. Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct.App.1997). However, we note that before a finding of contempt may be entered, the order the contemnor has flouted must be a “lawfully issued” order. I.C. § 34-47-3-1. An order is lawfully issued if “it is authorized, sanctioned, or at any rate not forbidden, by law.” Black’s Law Dictionary 885 (6th ed.1990). We review questions of law—such as whether an order is authorized by law—de novo. Tincher v. Davidson, 784 N.E.2d 551, 553 (Ind.Ct.App.2003).

In determining whether the trial court’s January 17, 2001 order was “lawfully issued,” we first acknowledge that Indiana Code section 34-14-1-8 provides that “further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.” Notwithstanding this authority, however, our supreme court has held that “it is the general rule ... that writs of mandate will not be granted to control the discretionary action of a public officer, board or commission.” Knutson v. State ex rel. Seberger, 239 Ind. 656, 658, 157 N.E.2d 469, 471 (Ind.1959). Only when a “clear legal duty” exists or an act is ministerial will a court mandate a public officer, board, or commission to act. Id. A “legal duty” is “that which the law requires to be done or forborne.” Black’s Law Dictionary 893 (6th ed.1990). An act is “ministerial” if the body carrying out the act does so “without regard to or the exercise of [its] own judgment upon the propriety of the act being done.” Id. at 996, 157 N.E.2d 469.

We have searched the Indiana Code in vain to find a legal duty on the part of the City to “establish a fair and equitable procedure for the bidding and awarding of towing contracts to qualified towing entities for the police ordered towing of vehicles.” Appellant’s App. p. 25. It is Indiana Code section 9-21-1-3 that provides the authority for the City to enforce parking regulations. However, the statute does not contain any provision as to the procedures that are required. We cannot say that the City had any legal duty to “establish a fair and equitable procedure for the bidding and awarding of towing contracts.” Appellant’s App. p. 25.

We also note that the award of a contract is not necessarily a ministerial act. For instance, in Weatherbee v. Indiana Civil Rights Commission, we held that a statute requiring that a busing contract be awarded to the “lowest responsible bidder” required an exercise of discretion, as the “responsibleness” of the bidder had to be ascertained. 665 N.E.2d 945, 949 (Ind.Ct. App.1996). Thus, we held that the selection of a busing contractor was not a ministerial act. Id. As previously stated, our statutes do not detail exactly what procedures the City must undertake to enforce parking regulations. If the determination of which busing company is “responsible” qualifies as an exercise of discretion, then the development of an entire scheme of parking enforcement certainly does as well.

Moreover, the General Assembly has left the creation of such enforcement schemes to the City through the Home Rule Act. Specifically, Indiana Code section 36-1-3-3 states that “any doubt as to the existence of a power of a unit shall be resolved in favor of its existence.” When coupled with Indiana Code section 9-21-1-3—which provides the authority for the City to enforce parking regulations—it is clear that the development of parking enforcement policies has been left to the City.

Having determined that no legal duty exists to “establish a fair and equitable procedure for the bidding and awarding of towing contracts” and that the selection of methods for enforcing parking regulations is within the discretion of the City, we must conclude that the “general rule” applies: “Writs of mandate will not be granted to control the discretionary action of a public officer, board or commission.” Knutson, 239 Ind. at 658, 157 N.E.2d at 471. Thus, the trial court’s January 17, 2001 order was not a “lawfully issued” order.² Because the order was not a “lawfully issued” order, the trial court erred in finding the City in contempt and ordering the payment of damages. Accordingly, we reverse the trial court’s finding of contempt and award of damages.

Reversed.

DARDEN, J., concurs. SULLIVAN, J., concurs in part and dissents in part.

1 . Ind.Code §§ 36-4-4-2, -3, and -4.

2 . We note a disturbing irony in the trial court's January 17, 2001 order. The trial court found that the towing ordinance was unlawful because it reposed the power to enter into contracts—an executive power—in the Common Council, the City’s legislative body. Appellant's App. p. 24-25. Notwithstanding its finding, the trial court then ordered the City to conduct bidding for towing contracts. In essence, the trial court was deciding that the best policy for the City of Gary was for towing services to be secured through a bidding process. While this may be the case, in our tripartite form of government, such policy decisions are entrusted to the executive and legislative branches.