Court of appeals hears Messer appeal

Clark County

Reason to travel

• The Indiana Court of Appeals has traveled to hear more than 300 cases around the state since 2000 as a way of informing the public on the procedures of the court.

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Indiana Court of Appeals Judge John Baker fields questions from the audience following oral arguments in the case of Jack Messer v. City of New Albany Police Department Wednesday morning at Silver Creek High School. Staff photo by C.E. Branham
Attorney Bart Betteau, representing appellant Jack Messer, delivered his argument and answered questions from the Indiana Court of Appeals Wednesday morning at Silver Creek High School. Staff photo by C.E. Branham
Attorney Brandon Smith, representing appellee City of New Albany Police Department, delivered his argument and answered questions from the Indiana Court of Appeals Wednesday morning at Silver Creek High School. Staff photo by C.E. Branham

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February 8, 2012

Attorneys argue whether civil rights comments were protected speech

By DANIEL SUDDEATH Daniel.Suddeath@newsandtribune.com The News and Tribune Wed Feb 08, 2012, 11:09 PM EST

SELLERSBURG — Attorney Brandon Smith was questioned at length by a panel of Indiana Court of Appeals judges Wednesday as to why police officer Jack Messer was suspended for alleged racist comments when it was later ruled his words were not prejudice.

Smith, who was representing the New Albany Police Merit Commission, said Messer’s words damaged perceptions of the NAPD and stirred up emotions in the community because of the sensitivity of the subject of civil rights.

Messer — a former New Albany City Councilman, mayoral candidate and a 28-year NAPD veteran — was suspended 40 days without pay in 2010 by the commission for conduct unbecoming an officer and for abusing sick leave policy.

During a police roll call meeting in January of 2010, Messer made a statement to the effect “the worst thing we ever did was to give those people their civil right,” in reference to black people.

Messer did not deny the statement, but said he poorly chose his words to criticize the government for the role he feels it has played in repressing black people. The managing officer at the time of the incident wrote in his report that while his words weren’t wisely chosen, he didn’t feel Messer was inferring racism with his comments.

But the suspension was ordered, as merit commission President Robert Dusch said Messer showed little remorse for the “suspicions of racism and appearance of impropriety raised against the NAPD due to his comments and failure to timely apologize.”

Thirty of the 40 days Messer was suspended were for his comments, and he appealed that ruling to Floyd County Superior Court No. 2. Messer did not appeal the 10-day suspension for abusing the NAPD sick leave policy.

Counseled by attorney Bart Betteau, the basis of Messer’s appeal was that his words were constitutionally-protected free speech. But Special Judge Roger Duvall upheld the merit commission’s decision in 2011.

In his ruling, Duvall stated that in order for speech by a public employee to be protected, it “must be on a matter of public concern and the employee’s interest in expressing himself on the issue must not be outweighed by any injury the speech could cause to the interests of the government employer.”

Unsatisfied with the ruling, Messer petitioned the Indiana Court of Appeals to consider overturning Duvall’s summary judgment. As part of its “Appeals on Wheels” program, a three person panel of Indiana Court of Appeals judges heard about 40 minutes of oral arguments from Betteau and Smith at Silver Creek High School Wednesday.

Betteau argued that Messer’s conversation with fellow officers was held during a closed door roll call meeting, and that he “could not have foreseen” that his comments would have been leaked to the media and made public.

Judge John Baker questioned Smith as to why Messer’s speech was considered controversial when “the fact finder found that it is not racist” in reference to prior decisions made by the lower court and commission.

Smith said Messer made a racially charged speech that could hurt the public perception of the department and led to complaints by groups such as the NAACP.

“An officer can be disciplined even if the speech is not racist,” Smith said.

Messer’s comments were audible across the entire meeting room and he even admitted his choice of words were “stupid,” Smith said. Messer must work with black residents and co-workers to adequately perform his job, and their perception of him could be hampered by the comments he made even if they weren’t intended to be racist, Smith continued.

Furthermore, Duvall was justified in his summary judgment for multiple reasons, including the fact that Betteau didn’t raise the free speech argument during the commission’s hearings, Smith said.

Betteau countered that while government as an employer has the right to punish workers for intentional divisive and harmful comments, it cannot impede on free speech nor control how the public reacts to constitutionally-protected statements that aren’t intended to cause damage.

Betteau added the place where the conversation took place —a police meeting room — is a critical factor in the case because in his opinion, it’s a private setting.

“I think that’s a critical distinction,” Betteau said of the public versus private definition of the roll call meeting room.

Messer was not in attendance during Wednesday’s oral arguments.

The panel will form an opinion on the case and release its decision in the coming months. The arguments were held before a crowd of students and members of the community, as Leadership Southern Indiana held an event that coincided with the hearing.