Small Claims Court has a duly authorized (Small Claims Rule 2) dual-purpose form which is a Notice of Claim (Complaint) on one side and a Summons/Return of Summons on the other. For State law traffic infractions plus municipal code violations¹ (traffic or not) IC 9-30-3-6(c) provides another convenient hybrid complaint and summons for the commencement of a civil action.
Beyond these two substantial exceptions, civil actions are governed by the Trial Rules, including: the TR 3 requirement of a complaint (or equivalent pleading authorized by statute) to commence a civil action; the TR 4(A) requirement of service of summons to acquire personal jurisdiction; the TR 4(B) and (C) descriptions of the preparation and content of a summons; and the “general rules of pleading” set out in TR 8(A).
It may be appropriate to recall here that municipal ordinance cases are exclusively civil. See IC 36-1-3-8(a)(8) for the “home rule” limitation prohibiting a municipality from legislatively declaring a criminal offense. Accordingly, the law is clear to the effect that an ordinance violation may be prosecuted only by way of a conventional complaint and summons (per the Trial Rules) or by way of the statutory form of complaint and summons (created for State law traffic infractions) found at IC 9-30-3-6(c).²
Having viewed the law applicable to the prosecution of municipal ordinance violations, let’s have a look at the reality of how such prosecutions are conducted, particularly in the government-friendly venue of a City Court. I have no statistics to offer nor any research other than my own anecdotal experience in the City Courts of Hammond and Gary. In the Hammond City Court (scheduled for dissolution at the end of 2018) one may expect an “Ordinance Violation Notice” (likely not even served on the defendant) purporting to give notice of the ordinances violated and the court date. The document is neither complaint nor summons under the Trial Rules or under IC 9-30-3-6(c). The lack of service is remedied (after the court date is missed) by an “Order to Appear” (by judicial authority) issued without personal jurisdiction (by service of summons) and without so much as the lawful commencement of an action (by the filing of a real complaint). When the defendant appears pro se in response to the Order, he thereby concedes personal jurisdiction.
In contrast to the Hammond experience the City of Gary makes an effort to commence ordinance cases with a Summons and Complaint but fails miserably. In the Gary City Court an ordinance case defendant may receive (by regular mail) a document titled “Complaint and Summons for City Ordinance Violations” in a form other than that permitted by IC 9-30-3-6(c). But is it a complaint and/or summons per the Trial Rules?
The Gary “Complaint and Summons” will likely be found to lack a Trial Rule 11 verifying signature. It will definitely lack a Trial Rule 8(A)(2) demand for relief. Moreover, it will likely be found lacking the required averment of “operative facts” necessary to state an actionable claim as required by Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 135 (Ind. 2006). By any standard, the Gary document falls short of stating a legally adequate complaint under the Trial Rules.
How does the Gary “Complaint and Summons” fare as a summons? The Gary instrument is defective per TR 4(B) for the obvious lack of a signature and a date from the clerk and the presumptive lack of review by the clerk. It will lack a statement under TR 4(C)(5) of the time (generally 20 to 23 days) within which the Trial Rules require a response. The court date declared in the document may be found to be less than 20 days prior to any date of purported service.
What about TR 4.15(F) and its rule of lenity for a technically defective summons or technically defective service? It seems that the municipal lawyers resistant to compliance with the Trial Rules always cite TR 4.15(F) which states a rule of lenity to excuse mere technical defects in a summons or its service. The Rule applies to a “summons or the service thereof.” Accordingly, a substantially compliant summons is a prerequisite to application of the rule of lenity. The Gary instrument is far from being a substantially compliant summons.
I have heard the excuse that compliance with rules of service would be too burdensome for a municipality that is a high-volume filer. My answer is that the municipalities shouldn’t file so many cases that they can’t observe the Trial Rules in each and every one.
It seems to strike municipal jurists as a novelty when I appear with Motion to Dismiss and a supporting Memorandum. The practice of ignoring the Trial Rules in municipal ordinance cases is tolerated as the norm because it works, because too few lawyers (like me) raise a fuss, and because those in authority care too little about the rights of (mostly pro se) ordinance case defendants. The low incidence of objecting lawyers arises in part from the high incidence of pro se defendants in municipal ordinance cases. I encourage my fellow lawyers to help me in changing a lawless practice by objecting each and every time to notices of ordinance violations that are so woefully defective.
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¹While IC 34-28-5-1(c)(1) provides that an action to enforce an ordinance is governed by the Trial Rules, IC 34-28-5-1(e) eases the rule by providing that an ordinance violation may be charged by way of the “complaint and summons described in IC 9-30-3-6.”
²There appears to be no express statutory authorization for the use in municipal ordinance prosecutions of the complaint and summons of IC 9-30-3-6(c) in the electronic format described at IC 9-30-3-2.5.
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