Memorandum in Support of Joint Motion for an Order for Production of Documents; Memorandum Opposing Protective Order

     [||23d7b883-888d-4423-894a-ecacaf6e0c62||] IN THE UNITED STATES DISTRICT COURT 

  

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al.; 

Plaintiffs, 

Civil No. H76-373 Ve 

METHODIST HOSPITAL OF 

GARY, INC., ‘er al., 

Defendants. 

RICHARD GORDON HATCHER, 

et al., 

Plaintiffs, 

) 
) 
) 
) 
) 

Vv. ) Civil No. H77~154 
) : 

METHODIST HOSPITAL OF ) 

GARY, INC., et al., ) 

) 
) Defendants. 

MEMORANDUM IN SUPPORT OF 

JOINT MOTION FOR AN ORDER 

FOR THE PRODUCTION OF DOCUMENTS 
  

BACKGROUND   

During the depositions of officials of the Pepsriment of 

Health, Education and Welfare (HEW) taken ty Defendant Methodist 

Hospital of Gas, Inc., and by Plaintiffs on February 22-23, 1978, 

oral requests were made by the deposing parties that Defendant 

Califano produce certailn documents identified by the deponents 

in response to questions they were asked. Counsel for 

Defendant Califano orally objected to those requests and asserted 

 



  

that some or all of the requested documents were privileged 

on various grounds, including that the documents were protected 

from discovery as "intra-governmental communications." 

At the conclusion of those depositions, counsel for 

Methodist Hospital and for Plaintiffs orally informed counsel 

for Califano that they intended to move this Court for an 

order compelling Califano to produce the requested documents. 

Methodist Hospital and Plaintiffs SHEA ASHETY served counsel 

for Califano and filed with this Court a Joint Request for 

Production of Documents (pursuant to Rule 34 of the Federal 

Rules of Civil Procedure) and a Joint Motion for an Order 

for the Production of Documents (pursuant to Rule 37 of the 

Federal Rules of Civil Procedure). The Request and Motion 

each specify the requested documents to the extent they were 

identified by the deponents from HEW. In the tPtorais of 

resolving this matter prior to trial, this Motion is being 

brought before this Court in an expedited manner procedurally 

agreed upon by counsel for all concerned parties. 

ARGUMENT   

It is undisputed that the requested documents constitute 

or contain evidence relevant and material to matters involved 

in this action and that the documents are in the possession 

of Defendant Califano. Abu dinnive tie sole issue to be 

decided is whether the scope of the privilege asserted by 

Califano may prevent the discovery of the requested documents 

under the circumstances of this case. 

 



® | ® 

  

The principal ground relied upon by Califano for 

withholding the requested documents is that they constitute 

intra-governmental communications which are confidential and 

must remain free from disclosure through normal discovery 

procedures. Since the Supreme Court's landmark decision in 

United States V. Nixon, 418 U.S. 683 (1974), there can be no   

doubt that this Court has the power and authority to resolve 

the parties' instant dispute underlying this motion. 

In an extensive analysis of the intra-governmental 

communication privilege, the U.S. District Court for the District 

of Columbia has discussed the history and judicial foundation 

  underlying this concept in Carl Zeiss Stiftung v. V.E.B. 

Carl Zeiss, Jena, 40 F.R.D. 318 (1966). It declared that   

"the privilege obtains with respect to intra-governmental 

documents reflecting advisory opinions, recommendations and 

deliberations comprising part of the process by which govern-— 

mental decisions and policies are formulated." Id. at 324. 

However, the court clearly recognized that the intra- 

governmental communication privilege 1s not absolute, but 

rather is a limited and qualified one which must yield under 

particular circumstances. In this regard, the court wrote: 

"This privilege, as do all evidentiary 

privileges, effects an adjustment between important 

but competing interests. There is, on the one 

hand, the public concern in revelations facilitating 

the just resolution of legal disputes, and, on the, 

other, occasional but compelling public needs for   

confidentiality. In striking the balance in favor 

or nondisclosure of intra-governmental advisory 

 



  

*® Co» 

and deliberative communications, the privilege 

subserves a preponderating policy of frank expression 

and discussion among those upon whom rests the 

responsibility for making the determinations that 

enable government to operate, and thus achieves an 

objective akin to those attained by other privileges 

more ancient and commonplace in character. Nowhere 

is the public interest more vitally involved than 

in the fidelity of the sovereign's decision- and 
policy-making resources. 

xk % 

"To restate the Government's claim and its 

justifications is not to say that nondisclosure is 

to follow in all instances where the conditions 

prerequisite to invoking the privilege are found 

to exist. Nor is it to suggest that the interests 
it protects cannot be outweighed in particular 
situations by a sufficiently strong showing of 

necessity for examination.” Id. at 327+323 

(footnotes omitted; emphasis added). 

  

  

  

  

    

  

  

  

See Kaiser Aluminum & Chemical Corp. v. U.S., 157 F.Supp. 939, 946 
  

(Ct. Cl. 1958); Timken Roller Bearing Ce. v. U.S., 38 ¥.R.D. 57,   

64 (N.D. Ohio 1964). 

The qualified nature of the privilege was never demonstrated 

  more profoundly than in U.S. v. Nixon, op. cit. In Nixon, 

certain tape recordings and documents of the President ors 

subpoenaed by the Special Prosecutor for use in the prosecution 

of former government officials. The President sought to quash 

that sulbeena by claiming that because the requested items 

manifested the "confidential conversations between a President 

and his close advisors that it would be inconsistent with the 

public interest to produce” [them]. 418 U.S. at 703. Since 

the President ALE hot assert that the subpoenaed materials 

contained matters of military secrecy or national security 

(id. at 710), the privilege claimed by the President is no 

 



  

different than that asserted here by Califano: a general 

privilege based upon the need for free intra-governmental 

communication. 

In Nixon, the Supreme Court wrote: 

"Since we conclude that the legitimate needs 

of the judicial process may outweigh Presidential 
privilege, it is necessary to resolve those competing 

interests in a manner that preserves the essential 

functions of each branch. .. .. . 

"The expectation of a President to the 

confidentiality of his conversations and 

correspondence, like the claim of confidentiality 

of judicial deliberations, for example, has all 

the values to which we accord deference for the 

privacy of all citizens and, added to those values, 

is the necessity for protection of the public 

interest in candid, objective, and even blunt or 

harsh opinions in Presidential decisionmaking. A 
President and those who assist him must be free to 

explore alternatives in the process of shaping 

policies and making decisions and to do so in a way 

many would be unwilling to express except privately. 

These are the considerations justifying a presumptive 

privilege for Presidential communications. . . . 

"But this presumptive privilege must be 

considered in light of our historic commitment to 

the rule of law." Id. at 707-708. 

The high court then proceeded to examine the Special 

Prosecutor's need for discovery of the subpoenaed materials, 

which it then weighed against the President's need for 

preserving confidentiality. In so doing, the Court relied 

heavily upon the constitutional rights of the Special 

Prosecutor as the people's representative and of the 

defendants in the matter for which the materials had been 

subpoenaed. The Court declared, "The right to the production 

 



  

of all evidence at a criminal trial similarly has constitutional 

dimensions." Jd. at 711. 

In conclusion, the Court directed the District Court 

to conduct an in camera examination of the subpoenaed documents 

to ascertain which materials or parts thereof must be released 

pursuant to the subpoena. To guide that process, the Court 

ruled: 

"We conclude that when the ground for asserting 
privilege as to subpoenaed materials sought for use 

"in a criminal trial is based only on the generalized 
interest in confidentiality, it cannot prevail over 
the fundamental demands of due process of law in 
the fair administration of criminal justice. The 
generalized assertion of privilege must yield to 
the demonstrated, specific need for evidence in a 
pending criminal trial.” Id. at 713, 

While the instant case is a civil case, unlike the 

criminal matter involved in U.S. v. Nixon, the principles 
  

propounded by the Supreme Court are no less applicable here. 

The government, through Califano, asserts a generalized 

privilege designed to encourage free communication among 

federal officials as they carry out their respective jobs. 

However, the Plaintiffs here have brought into question precisely 

how those officials carried out their duties and whether their 

acts satisfied the federal government's statutory and consti- 

tutional obligations. Within the scope of the issues raised 

by this case, the documents being sought constitute aivine 

evidence of what HEW aia and how they did it. Because Plaintiffs 

have alleged that Defendant Califano acted in an unconstitutional 
  

manner by extending federal financial assistance in a manner 

 



  

- 7 - 

which discriminates on the basis of race, Plaintiffs! 

need for the requested documents is congruent with 

their statutory right to seek to compel the government 

to act in a manner which fully comports with the Constitution. 

Therefore, Califano’'s generalized assertion of privilege 

must yield to the "demonstrated, specific need for 

evidence" in the pending litigation. 

Defendant Methodist Hospital no less has a "demonstrated 

specific need" for the requested documents. To properly 

defend itself, Methodist Hospital must prove not only 

that all of its actions complied with its statutory 

obligations, but also that HEW, which Srodsssed and - 

approved its applications for federal financial assistance, 

did so in a full counties with its regulatory, statutory 

and constitutional requirements. Moreover, if HEW 

possesses any documents of information which Arguably 

suggests that Methodist Hospital is not in full compliance 

with the law, the Hospital's need to discover that 

material before trial is manifest. 

Should the privilege asserted by Califano prevent 

the pre-trial discovery (and, a fortiori, the introduction 
  

into evidence at trial) the requested documents, not 

only would the Plaintiffs and Methodist Hospital be 

precluded from properly presenting their respective 

 



    

cases, but the government will, in essence, be protected 

from being held accountable for its actions. While 

it once had been the rule that a judicial proceeding 

could not be used to probe the government's decision- 

making process (United States v. Morgan, 313 U.S. 403, 
  

422 [1341]), the increased involvement of government 

in societal affairs has caused the abandonment of this 

principle in favor of a rule demanding greater accountability 

of the Executive Branch. This was made clear in Citizens 
  

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 
  

(1971), where the basic issue was whether the Secretary 

of Transportation had satisfied the statutory preconditions 

before approving the use of federal funds for constructing 

a highway through a public park. Because the Supreme 

Court was unable to determine from the record if the 

Secretary had in fact considered and decided the statutorily 

mandated pre-requisite questions, it remanded the case 

to the District Court for "plenary review" of the Secretary's 

decision-making process. In this regard, the Court 

explained: 

That review is to be based on the full adminis- 
trative record that was before the Secretary 
at the time he made his decision. But since 

the bare record may not disclose the factors 
that were considered or the Secretary's con- 
struction of the evidence it may be necessary 
for the District Court to require some explana- 
tion in order to determine if the Secretary 
acted within the scope of his authority and 
if the Secretary's action was justifiable 
under the applicable standard. 

Id. at 420 
(citations omitted) 

 



  

Yet, the Court went even further and suggested that 

the District Court might "require the administrative 

officials who participated in the decision to give 

testimony explaining their action; . . . it may be 

that the only way there can be effective judicial review 

is by examining the decisionmakers themselves." Ibid. 

The Motion before the Court here asks nothing 

other than what the Supreme Court directed in Overton Park. 
  

When the acts of the Executive Branch are called into 

question as being contrary to law, the Goverment. 

interposition of the intra-governmental communication 

Seivilege, if upheld, would prevent that fundamental 

question from being resolved. 

Accordingly, the privilege claimed by Califano 

must yield to the greater need of the moving parties 

for the requested documents. Plaintiffs and Defendant 

Methodist Hospital, therefore, respectfully pray for 

an order compelling their production. 

 



  

- 10 - 

Respectfully suwmitted, 

  

oe, A AN Ce; / a J An 

22 Bruce EB. Sayirs 
. "i ie - be” 

& ; : 5 fv 

  

  

Marc S. Krass 

HODGES, DAVIS, GRUENBERG, 

COMPTON & SAYERS 

5525 Broadway 

Gary, Indiana 46410 
(219) 981-2557 

SEYFARTH, SHAW, FAIRWEATHER & 

GERALDSON 

55 East Monroe Street 

Suite 4200 

Chicago, Illinois 60603 
(312) 346-8000 

Attorneys for Defendants 

Methodist Hospital of Gary, Inc., 

and Denis E. Ribordy gl 

gra ERATE 
  

  

Beth J. LYQF ja ag 
10 Columbus Circle 

New York, New York 10019 

Attorney for Plaintiffs 

 



  

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BARBARA WESSON, ET AL., 

Plaintiffs, 

ais 
CIVIL NO. H 76-373 

METHODIST HOSPITAL OF GARY, 

INC., BT. AL., 

Defendants. 

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RICHARD GORDON HATCHER, ET AL.,) 

Plaintiffs, 

CIVIL NO. H 77-154 Ve 

METHODIST HOSPITAL OF GARY, 

INC., : 

Defendants. 

MEMORANDUM OF METHODIST HOSPITAL OF GARY, INC. 

IN OPPOSITION TO MOTION OF 

GARY HUMAN RELATIONS COMMISSION 

FOR PROTECTIVE ORDER 
  

FACTS 

A Civil Subpoena was served upon Stephen Tallackson, 

Executive Director of the Gary Human Relations Commission 

on February 3, 1978 compelling his deposition and the pro- 

duction of certain documents from the Gary Human Relations 

Commission files, Exhibit A to Motion for Protective Order. 

Documents were delivered pursuant to Stephen Tallackson's 

request to the office of Hodges, Davis, Gruenberg, Compton 

& Sayers on afternoon of February 15, 1978. On February le, 

 



  

1978, Stephen Tallackson testified at his deposition that 

after receiving the Subpoena he discussed it with Attorney 

Julian Allen and the Gary Human Relations Commission 

Attorney William R. Norman prior to the delivery of the. 

documents and the deposition of February 16, 1978. 

At the start of the Zool ion on February 16, 1978, 

Attorney Norman presented colise for Eh Zives time of 

the Motion for Protective Order apparently filed February 15, 

1978 including a Notice of Hearing which indicated no date 

for hearing. The Affidavit of Service indicated, in error, 

that copies had been mailed to all attorneys of record ex- 

cept those of Methodist Hospital on February 15, 1978. 

Thereafter, a new Affidavit of Service indicating delivery 

to all attorneys of record was prepared on February 16, 1978 

after the deposition of Stephen Tallackson had been partially 

taken and continued due to his vefusal to prodide documents 

or testify concerning complaints filed by or with the Gary 

Human Relations Commission against Metro Corps, Inc., a 

plaintiff in this cause. 

Rules 26(c), 30(c) and 37(d) of the Federal Rules of 

Civil Procedure require that a Motion to quash or limit a 

subpoena or for a protective order be filed and a hearing 

held thereon prior to the date established for the production 

of documents or testimony. The failure of either the 

plaintiffs’ attorneys and the attorney for the Gary Human 

Relations Commission to present such a Motion within the 

time frame set forth in the Rules referred to above has 

 



  

necessitated the delay of the deposition and production of 

  

documents to the inconvenience in time and expense of 

Methodist Hospital. 

The Motion for Protective Order requests that the 

Hospital or others be prohibited from asking questions or 

obtaining documents concerning Metro Corps, THE, AS set 

forth in the Subpoena and/or any such documents which 

Stephen Tallackson "claims is confidential" (Motion, Para- 
  

graphs 2, 3). 

The Motion further contends without identifying the 

documents or allowing testimony that such an examination of 

Stephen Tallackson regarding Metro Corps, Inc., would be 

irrelevant and not pertinent to this lawsuit, although 

Metro Corps, Inc., is a plaintiff herein and has been con- 

ditionally named a class representative (Motion, Paragraph 4). 

Peponant Stephen Tallackson did teliity at his PAE LLAL 

deposition on February 16, 1978 that a complaint had been 

filed against Metro Corps, Inc., with the Gary Human Relations 

Commission. TNSTeRTLor; he was instructed not to answer any’ 

further questions by Attorney Norman, notwithstanding refer- 

ences by the attorney for the Hospital to the Federal Rules 

of Civil Procedure requiring Znswers over objection. The 

Tallackson Affidavit in Support filed with the Motion for 

Protective Order also confirms that a complaint has been 

filed with the Gary Human Relations Commission against Metro 

Corps, Inc. Such Affidavit contends that the Gary Civil 

Rights Ordinance, Section 7 (C) prohibits the publication 

 



  

% od * 

Of details of a concilliation. 

ARGUMENT 
  

Methodist Hospital's Subpoena and attempted question- 

ing at the deposition of February 16, 1978 sought documenta- 

tion of any complaint received by the Gary Human Relations 

Connisslion soalnet Metro Corps, Inc. Even assuming that 

the documentation concerning concilliation might not be 

obtainable in this matter pursuant to the Federal Rules of 

Civil Procedure, certainly the complaint and any other 

documentation other than "the details of a concilliation” 

should be produced and testimony permitted to that extent. 

Copies of the gary Municipal Code, Title 7, Chapter ], 

Section 7-101 and subsequent portions thereof, the Gary 

Civil Rights ordinance, have been attached hereto for the 

Court's consideration in this matter. That Ordinance de- 

fines 2 "Complainant" as an individual charging on his own 

behalf that he has been personally agrieved by an unlawful 

discriminatory practice, or the director or the deputy 

director charging that such an unlawful ido intnaiany 

practice was committed against a person or class of persons 

other than himself. Further, the term "complaint" is de- 

fined as a written grievance filed by a complainant (Section 

7-103). Further provisions of the Ordinance set forth the 

Commission's procedures upon the receipt or issuance of a 

‘complaint, which must be verified, and in Section 7-107 (C) 

states the following: "The Commission shall not make public 

the details of any concilliation and/or consent agreement 

 



| 

® i ® 

  

except when so authorized by the person against whom the 

complaint was made or when a party to the concilliation 

and/or consent agreement has not complied with the agreement." 

Obviously, if a deponent is allowed to determine what 

is immaterial or irrelevant, particularly with respect to 

a lawsuit in which he or it is not a party, the taking of 

-a deposition would be hopelessly confused and delayed. 

Further, to contend that a deponent should be able to 

determine what testimony or documents are confidential 

would result in the same frustration of the Federal Rules 

and is totally without any support in the Rules or in 

interpretive decisions. 

Defendant Methodivt Hospital has Alsmuted the alle- 

gations of plaintiff Metro Corps, ne. itis standing, and 

its conditional designation as a class representative of 

the black residents of Gary. Discovery of a verified com- 

plaint against this plaintiff and purported class repre- 

sentative alleging unlawful &tscrininstory practices would, 

therefore, be particularly material and cSlevant £0 thls 

lawsuit. 

Methodist Hospital has also denied that Metro Corps, 

Inc., 1s entitled to certain equitable relief sought in 

its complaint and further set forth in its Affirmative 

Defense that by Metro Corps, Inc.'s actions it is not en- 

titled to such relief. The details of the complaint, which 

undisputedly has been filed against Metro Corps, Inc., with 

 



  

* ; " 
with the Gary Human Relations Commission would bear directly 

on the issue of "clean hands" pursuant to the prayer for 

equitable relief. 

Wherefore, Defendant Methodist Hospital of Gary, Inc,, 

requests that this Court deny the Motion for Protective 

Order of the Gary Human Relations Commission and its Execu- 

tive Director, Staanen Tal lackson, results the. production 

of documents and testimony sought in the Civil Subpoena 

troperly served upon Director Stephen Tallackson on Feb- 

ruary 3, 1978. Further, Methodist Hospital requests that 

this Court award it appropriate attorneys' fees and expenses, 

{huolay as’it Has Desh required to continue the deposition 

of Stephen Tallackson on February 16, 1978, present its 

Memorandum in Opposition to the Motion for Protective Order 

and appear before this Court in opposition thereto, none 

of which would have been required had the Federal Rules of 

Civil Procedure been properly complied with initially. 

Respectiully submitted, 

Aes 
One/Bf the AttorneyS¢Ior 

METHODIST HOSPITAL /OFy GARY, INC. 

  

Hodges, Davis, Gruenberg, 

Compton & Sayers 

~ 5525 Broadway 

Gary, Indiana 46401 

(219) 981-2557 

Seyfarth, Shaw, Fairweather 

& Geraldson 

55 East Monroe Street 

42nd Floor 

Chicago, Illinois 60603 

(312) 346-8000 

 



- 

- TITLE 7—REGULATION OF BUSINESS 
CHAPTER. : : : CHAPTER. 
*1. GARry Crvir RIGHTS ORDINANCE, §§ 7- 23. 
ttt 1017-110, es as 

LICENSES, § 7-206. 2305.1—7-2305.6. 
[REPEALED] 24. [DELETED.] : 

. FooD ESTABLISHMENTS — RESTAU- 27. Dxy CLEANING PLANT LESTABLISH- 
RANTS, §§ 7-1012—7-1023, . -. : MENTS, §§ 7-2701—7-2705. 

PAWNBROKERS, § 7-1702. "28. GASOLINE SzRVICE STATIONS, §§7- 
PLUMBING CONTRACTORS, § 7-1923. 2301—7-2803. "4 

. .. TAXICABS, §§ 7-2208, 7-2213, 7-2265-— : sims 
T-2267. ig a 

LIC AMUSEMENTS, §§7-2301.3, 7- 

- 

CHAPTER 1—GARY CIVIL RIGHTS ORDINANCE 

SECTION. : 
: RE 7-106. Unlawful discriminatory prae- 
Ly : tices. 

7-107. Procedure—Enforcement. 
7-108. Penalties. > 
7-109. Pending suits. 
7-110. Severability. 

SECTION. 

7-101. Title. 
7-102. Purpose. 
7-103. Definitions. 
7-104. Commission — Creation — Mem- 

bership. 
7-105.. Commission—Powers and duties. 

+ 7-101. 'Title~This ordinance shall be known and may be cited 
and referred to as the “Gary civil rights ordinance.” [1970 Ord. No. 
4458, § 1.] : 
Repeal. Section 7-101 as it appears in 
the bound volume was specifically re- 
pealed by §10 of 1965 Ord. No. 4050, 

which in turn was specifically repealed by 
§ 11 of 1970 Ord. No. 4458. 

- 7-102. Purpose.—lt is the public policy of the city of Gary, Indiana 
- to provide all of its citizens equal opportunity for education, employment, 
access to public conveniences and accommodations and acquisition 
through purchase or rental of real property including but not limited 
to housing, and to eliminate segregation or separation based solely on 
race, color, religion or national origin, since such segregation is an 
impediment to equal opportunity. The promotion of equal opportunity 
without regard to race, creed, color, national origin, ancestry or sex is 

. the purpose of this act. It is also the public policy of this city to pro- 
tect employers, labor organizations, employment agencies, property 
owners, real estate brokers, builders and lending institutions from un-- 
founded charges of discrimination. : 

Equal educational and employment opportunities and equal access to 
and use of public accommodations and equal opportunity for acquisition 
of real property, to the extent that remedies for the prevention of 
their denial are herein provided, are hereby declared to be civil richts. 
The practice of denying these rights to persons by reason of the race, 
creed, color, ancestry, or sex of such person is contrary to the principles 
of freedom and equality of opportunity and is a burden to the ob- 
Jectives of the public policy of this city [and] are hereby declared to 
be unlawful discriminatory practices. [1970 Ord. No. 4458, §2.] 

104 

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Repeal. Section 7-102 a 
- the bound volume was : 

7-103. Definitions.- 
ing terms, phrases, w: 
given herein. When 1 
the present tense incl 
include the singular 1 
include the plural nu 
not merely directory. 

(A) The term “per: 
associations, organize 

tives, legal represent 
and other organized g 

_ (B). The term “con 
of the city of Gary, 
~ (C) The term “cor 

~ the human relations 
(D) The term “dir 

commission.. . 7. 
(B) The term “dt 
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-(F) The term “er 

civil subdivision the: 
persons within the 
include any not for 
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religious institution d 

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(G) The term “e 
by his parents, spot 
person. via | 

- (H) The term “la} 

exists for the purpo 
for dealing with emr 
of employment, or { 
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~: (I) The term “‘emj 
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(J) The term “pub 
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(K) The term “e 
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7-104 -- REGULATION OF BUSINESS 

eAL) The term “owner” 
ship or possession or the right to sell, ren 
including but not limited to a lessee, s 
agent. : : 

t or lease any housing unit, 
ublessee, assignee or managing 

. (M) “Real estate operator” means any individual or combin 
individuals, labor unions, joint 
associations, corporations, legal representatives, mutual companies, trusts, unincorporated organizations, trustees in bankruptcy, receivers, or other legal or commercial entity, 

+ branch, or subdivision thereof, that is e 
ing, purchasing, exchanging, renting, 

+ improvements thereon, including options, or that derives income, in whole or in part, from the sale, purchase, exchange, rental or lease of . real estate; or any individual emplo 
of these, "45. We ie 

~~ (N) “Financial institution” means banks, banking organization, mort- "gage company, insurance company, or other lender to whom application ... 1s made for financial assistance for the purchase, lease, acquisition, -." construction, : rehabilitation, repair, maintenance, or improvement of ...-real property, or an individual employed by or acting on behalf of any - + of these. TL aes CO ed FUL Ea igh Bad 
~~ . (0) The term “complainant” means any individual charging on his ~~ own behalf to have been personally aggrieved by an unlawful diserimi- -. natory practice, or the director, deputy director, or charging that an’ ‘unlawful discriminatory practice was committed against a person or ~ class of persons other than himself. - dls ro ol oe rl 
~~: (P) The term “complaint” 
complainant pursuant to the provisio 

"Repeal. Section 7-103 as it appears in .repealed all ordinances and parts of ordi- . the bound volume was repealed by impli- nances in conflict therewith. g “an +.- cation by 1970 Ord. No. 4458, § 11 which. .- ie 5 
-— 

il is, . - > 

ation of 

ngaged in the business of sell- 
or leasing real estate, or the 

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* A RIE . ERP Le 

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ns of this ordinance. [1970 Ord. No. 

+. 7-104. Commission—Creation—Nembershij 
established in the city of Gary a commi 

- carry out the provisions of this ordinanc 
...sist of fifteen (15) members. All members of 
"commission shall be appointed by the mayor, s 

and consent of the common council, 
2 (B) All commissioners appointed. under the authority of Ordinance 
"4050 and whose terms have not expired by the effective date of this . ordinance, shall continue to serve for the term of their appointment. 
‘Thereafter the term of service shall be four (4) years. Each member 

- of the commission shall continue to serve after his term until his 

1p—(A) There is hereby 
ssion on human relations to 
e. The commission shall con- 

the human relations 
ubject to the advice 

successor is appointed. 

.(C) Upon the death or resignation of any member, a successor dont 
be appointed by the mayor, subject to the advice and consent of the common council, to serve for the unexpired term of the member. 

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means any person having the right of owner. = 

apprenticeship committee, partnerships, 

or any governmental agency, 3 

ved by or acting on behalf of any - 

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107 

(D) The memb: 
tion but they ma: 
in the performan 
made by the com 

(BE) Any mem! 
successive regula: 
a majority vote 

* Repeal. Section 7-1 
the bound volume wa 
cation by 1970 Ord. I 

7-105. Commis 
elect one of ifs m 
as it may deem 
each month and 
sary. Eight (8) 1 
for the transactiqg 
commission excel 
a2 quorum of mer 

. .the entire comm 
this ordinance. 

~~ (B) The com 
such other perso 
assist the commi 

(C) To create 
ment will aid in 

. (D) To gathe 
man relations an 

..(E) To reduce 
in relations betv 

(F) To make 
policies of this { 
the public. 

(G) To discou 
tices by inform: 
compliance with 

.- (FH) To preve 
discriminating 2 
testified in any 
sisted the comn 

(I) To invest 
compel the atte 
documents and x 
findings and req 
quiring remedial 
stitute actions £ 
superior court 
subpoena. All s 

   



a zation, educational institution, financial institution, or real estate oper- 

.. word “institution” was inserted to cor- 
: Tweet an obvious error. 

7-107 REGULATION OF BUSINESS 

any prospective student or enrollee, or to deny any service offered by such : 
- institution to any person, otherwise qualified for such service, on the : 
ground of race, color, religion or national origin. 

(XK) Nothing contained in this section shall be constr wel to prevent = 
the termination of the employment of any person who is unable to 4 
‘perform satisfactorily his duties, or to affect the retirement policy +: 
or system of any employer where such policy or system is not merely 
a subterfuge to evade the purposes of this section unless such policy 

~or system, if established on or after (July 1, 1965), is provided for a 
mandatory retirement age of less than 65; nor shall anything in this * 
‘section be deemed to preclude the varying of insurance coverages ac- 
cording to an employee’s age. 

(L) It is an unlawful discriminatory practice for any person, includ- 
ing but not limited to any employer, employment agency, labor organi- 

ator to discharge, expel, or penalize any individual in any manner 
because he has filed a complaint, assisted or participated in any manner 
in an investigation, proceeding, or hearing under this ordinance. [1970 3 
“Ord. No. 4458, § 6.] 
“ Compilers Note. The bracketed words 
“qualify” in subdivision (E)(4) and 
“with” in subdivision (G)(2) were in- 
.serted by the compiler for a proper read- - 
ing of the section, and the bracketed 

pealed by §10 of 1965 Ord. No. 4050, 

§ 11 of 1970 Ord. No. 4458. 

7-107. Procedure—Enforcement.—(A) No ompliint 1 may h ac- 
pi by the commission unless it substantially Comes with ihe 

it following requirements: 

(1) The complaint must sufficiently show the full name and stress 
3 2 the complainant; the full name and the address of the person, em- 

ployer, employment agency, labor organization, real estate operator, 
i financial institution or educational institution against whom the com- 

- plaint is made; the alleged discriminatory practice and a statement of 
particulars thereof; the date or dates of the alleged discriminatory 

practice, and if the alleged discriminatory practice is of a continuing 
. nature, the dates between which said continuing acts of discrimination 

a 
ra Su a 59 Ba 

are alleged to have occurred; and a statement as to any other action, 
civil or criminal, instituted in any other form based upon the same 
grievance as is alleged in the complaint, together with a statement as . 

- to the status or disposition of such other action. 
(2) The original complaint must be signed, and verified Yitnre 1) 

- notary public or any other person duly authorized by law to administer : 
oaths and take acknowledgments. 

© (3) No complaint shall be valid unless filed within ninety (90) days 
from the day of the occurrence of the alleged discriminatory practice. 

(B) The commission shall make a prompt and full investigation of 
each complaint that is properly filed. The commission may, by its rules 
and regulations authorize such an investigation by an individual com- 
missioner, by any committee or subcommittee of the commission, by the 

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Repeal. Section 7-106 as it appears in ge! 
the bound volume was specifically re- = 

which in turn was specifically repealed by 3 

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113 

director of the com 
sion as may be desi 

(C) If the comm 
cause exists for th 

attempt to eliminat 

tion. The commissi 

tion and/or consen 

son against whom 

conciliation and/or 

. ment. 

(D) In any case 
charged in the cor 
commission shall hy 

unlawful discriming 

shall serve upon 

or engaging in th 

“ferred to as the ri 

complaint and a n 

ing shall be held 

the statement of ¢ 

an answer to the 

~ person or to be re 
examine and Ccrosy 

(BE) If upon all 
the respondent ha 

it shall state its 

(F) If upon al 

respondent has en 

cause to be serve 

person to take s 

purposes of this g 

that the person u 

is not complying 

with such order, 

the commission r 

forcement of its 

a failure to com 

a failure to coms 

(G) If it app: 
gaint that ther 
damage to the 

act, the directo) 

such complaint, 
" appears that: 

41) the { 
‘subject of 

(2) the f 
(8) ther 

harm to th  



ESS Si 112 

‘any service offered by such 
d for such service, on the 
in. 

11 be construed to prevent 
person who is unable to 
ect the retirement policy 
y or system is not merely 
section unless such policy 
, 1965), is provided for a 
nor shall anything in this 
bf Insurance coverages ac- 

ice for any person, includ- 
ent agency, labor organi- 
ution, or real estate oper- 
individual in any manner 
participated in any manner 
hder this ordinance. [1970 

Section 7-106 as it appears in 
1 volume was specifically re- 
§10 of 1965 Ord. No. 4050, 

urn was specifically repealed by 
[0 Ord. No. 4458. 

5 * 

AN ral 
Rg Bi 

0 complaint may be | ac- 
tially comptes wily toe 

Lhe full name and daisens 
ddress of the person, em- 
ion, real estate operator, 
against whom the com- 

actice and a statement of 
he alleged discriminatory 
ractice is of a continuing 
ing acts of discrimination 
nt as to any other action, 

rm based upon the same 
ther with a statement as 
tion. 2% 

2d, and verified before a 
ized by law to administer 

1 within ninety (90) days 
d discriminatory practice. 

and full investigation of 
mission may, by its rules 

ion by an individual com- 
of the commission, by the 

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113 GARY CIVIL RIGHTS ORDINANCE 

  

7-107 

director of the commission, or by such staff members of the commis- 
sion as may be designated. : 

(C) If the commission determines after investigation that probable 
cause exists for the allegations made in the complaint, it shall first 
attempt to eliminate the discriminatory practice by means of concilia- 
tion. The commission shall not make public the details of any concilia- 
tion and/or consent agreement except when so authorized by the per- 

son against whom the complaint was made or when a party to the 

conciliation i or consent agreement has not complied with the agree- 
ment. 

(D) In any case of failure to eliminate the discriminatory practice 
charged in the complaint by means of conciliation or persuasion the 
commission shall hold a public hearing to determine whether or not an 

- unlawful discriminatory practice has been committed. The commission 
shall serve upon the person charged with having been engaged in 
or engaging in the unlawful discriminatory practice, hereinafter re- 
ferred to as the respondent, a statement of the charges made in the 

complaint and a notice of the time and place of the hearing. ‘The hear- 

ing shall be held not less than fifteen (15) days after the service of 
. the statement of charges. The respondent shall have the right to file 
an answer to the statement of charges, to appear at the hearing in 
person or to be represented by an attorney or amy: other person, and to 
examine and cross-examine witnesses. 

. (BE) If upon all the evidence presented, the commission finds that 
the respondent has not engaged in any unlawful discriminatory practies, 
it shall state its findings of fact and dismiss the complaint, : 

(F) If upon all the evidence presented the commission finds that 
respondent has engaged in an unlawful discriminatory practice, it may 

cause to be served on such person or oder [an order] requiring such 
person to take such further affirmative action as will effectuate the 
purposes of this ordinance. If the commission subsequently determines 
that the person upon whom the cease and desist order has been served 
is not complying with such order, or is making no effort to comply 
with such order, (or is making no effort to comply with such order,) 

. the commission make [may] seek and obtain a decree of court for the en- 
forcement of its order in the circuit or superior court. Provided, that 
a failure to comply with 2 consent agreement shall be considered as 

a failure to comply with a cease and desist order. : 

“(G) If it appears from the facts alleged in 2a properly filed com- 
plaint that there is a great probability of immediate and irreparable 
damage to the complainant as a result of the alleged discriminatory 
act, the director or a deputy director may immediately investigate 

such complaint, and if upon the completion of such investigation, it 
appears that: : 

(1) the facts allege a discriminatory practice that is the proper 
‘subject of a hearing by the commission; and : 

(2) the facts as allezed in the complaint are true; and 
(3) there is a great probability of immediate and frreparable 

“harm to the complainant, 

  

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IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs 

VS. No. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 
er ‘al,, 

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Defendants 

RICHARD GORDON HATCHER, et al., 

Plaintiffs 

VS. No. H 77-154 

METHODIST HOSPITAL OF GARY, INC. , 
et al., : 

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Defendants 

AFFIDAVIT OF SERVICE 
  

Marc S. Krass, first being duly sworn upon his oath, 
alleges and says: 

1. That he is one of the attorneys for the defendants, 
Methodist Hospital of Gary, Inc. and Denis E. Ribordy. 

2. That on the 2nd day of March, 1978, he served copies 
of the following, to-wit: 

Memorandum in Support of Joint Motion for an 
Order for the Production of Documents; and 

Memorandum of Methodist Hospital of Gary, Inc. 
in Opposition to Motion of Gary Human Relations 
Commission for Protective Order 

upon the following named attorneys of. record in this matter, 
to-wit: 

Julian B. Allen 
Attorney at Law 
2009 Broadway 
Gary, Indiana 

Beth J. Lief 
Attorney at Law 
Suite 2030 

10 Columbus Circle 
New York, New York 10019 

 



  

Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D. C. 

Marvin G. Gavin and Edward L. Koven 
Regional Attorney and General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady 
Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 
Hammond, Indiana 46325 

Marilyn G. Rose 
Christine B. Hickman 

1751 N Street, N.W. 
Washington, D. C. 20036 

Theodore Sendak 
Attorney General 
State House 
Indianapolis, Indiana 46320 

by depositing the same in the United States Mail, postage 
prepaid, and addressed to each of the above-named individuals. 

3. Further affiant sayeth not. 
27 

    

  

Subscribed and sworn to before me, a Notary Public, 
this 2nd day of March, de’ 

J a 4 N72 IY. 

. My Commission Expires: 
: ’ ; ) : 

  

Mare 2, 1981 
. ) [||23d7b883-888d-4423-894a-ecacaf6e0c62||]