Andrade v. City of Phoenix

• Decision Date: 12 October 1982
• Docket Number: Nos. 80-5426,81-5150,s. 80-5426
• Citation: 692 F.2d 557
• Parties: Antonio A. ANDRADE, Plaintiff-Appellant, v. CITY OF PHOENIX and Lawrence Wetzel, Defendants-Appellees. Clifford D. FUGATE and Robert Dennis Barnhart, Plaintiffs-Appellants, v. PHOENIX CIVIL SERVICE BOARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 557

692 F.2d 557

Antonio A. ANDRADE, Plaintiff-Appellant, v. CITY OF PHOENIX and Lawrence Wetzel, Defendants-Appellees.

Clifford D. FUGATE and Robert Dennis Barnhart, Plaintiffs-Appellants, v. PHOENIX CIVIL SERVICE BOARD, et al., Defendants-Appellees.

Nos. 80-5426, 81-5150.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 12, 1981.

Decided Oct. 12, 1982.

Robert R. Clarke, Napier & Jones, Phoenix, Ariz., for plaintiffs-appellants.

William R. Jones, Jr., Jones, Teilborg, Sanders, Haga & Parks, Phoenix, Ariz., argued, for defendants-appellees; Don C. Stevens, II, Jones, Teilborg, Sanders, Haga & Parks, Phoenix, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Before BAZELON, ^* WALLACE, and NELSON, Circuit Judges.

PER CURIAM:

Police officers Andrade, Fugate and Barnhart were suspended by the Phoenix police department (the department) for engaging in sexual relations with women who were not their wives. Disciplinary action against Andrade was based upon charges of commission of a crime and immorality, both of which designated adultery as the underlying offensive conduct. Fugate and Barnhart were charged, in addition, with neglect of duty and conduct unbecoming an officer or which tends to bring discredit upon the department. The crime and immorality charges against Fugate designated adultery as the underlying offensive conduct. The crime and the immorality charges against Barnhart designated lewd and lascivious acts in addition to adultery as the underlying offensive conduct.

Andrade's twenty-day suspension without pay was upheld by the Phoenix Civil Service Board (the civil service board). Fugate and Barnhart were dismissed by the department. The civil service board reinstated them, but let stand suspensions of sixty-eight and sixty-one days respectively. All three officers filed complaints in the district court arguing that their suspensions violated their constitutional rights. The district court dismissed all three complaints, granting summary judgment in favor of the City of Phoenix (the city), the civil service board, and the chief of police. The officers appeal from these judgments, and their appeals have been consolidated for decision.

These appeals present several questions: whether the officers committed the crime of adultery as it is defined by Arizona law; if not, whether the police department and the civil service board would have imposed any disciplinary sanctions upon the officers absent a mistaken belief that their conduct constituted a crime; and whether discipline for extramarital sexual behavior, whether criminal or not, is constitutionally permissible.

In disciplinary proceedings within the department and before the civil service commission, the officers were charged with violation of departmental rules prohibiting the commission of a crime. Andrade and Fugate were charged with adultery in violation of Ariz.Rev.Stat. Secs. 13-1408 and 13-221 (current version at Sec. 13-1408 (1978)); Barnhart was charged with adultery in violation of id. Sec. 13-221 (current version at Sec. 13-1408 (1978)), and with the commission of lewd and lascivious acts, in violation of id. Sec. 13-652 (current version at Sec. 13-1412 (1978)).

We find no constitutional infirmity in a disciplinary rule prohibiting the commission of crimes by police officers. It seems clear that criminal activity by an officer charged with enforcement of the law will diminish his respect in the eyes of the community, arouse cynicism, discourage public cooperation, and perhaps encourage crime by others. Furthermore, a policeman who commits a crime places himself in a position where his interests as an individual and his interests as an officer may conflict. We therefore conclude that a rule prohibiting the commission of a crime has a rational basis.

There is a question, however, whether the officers have committed the crime of adultery as it is defined under Arizona law. The Arizona statute criminalizing adultery provides:

A. A married person who has sexual intercourse with another than his or her spouse, and an unmarried person who has sexual intercourse with a married person not his or her spouse, commits adultery and is guilty of a class 3 misdemeanor. When the act is committed between parties only one of whom is married, both shall be punished.

B. No prosecution for adultery shall be commenced except upon the complaint of the husband or wife.

Ariz.Rev.Stat. Sec. 13-1408. ¹ The officers have not denied their participation in extramarital sexual relations. At first blush, it would appear that they have committed the crime of adultery. It is not clear, however, whether the provision regulating the prosecution of adultery (part B) is merely a procedural mandate, or whether it modifies the definition of the crime, making adultery a crime only when a spousal complaint has been made. We have found only one case interpreting the statute. State v. Lynch, 115 Ariz. 19, 562 P.2d 1386 (Ct.App.1977). That decision, rendered by an intermediate appellate court in Arizona, holds that the prosecution provision modifies the definition of the crime. Id. at 24, 562 P.2d at 1391.

The courts of a state alone can define the authoritative meaning of state law. See, e.g., United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135, 82 S.Ct. 676, 677, 7 L.Ed.2d 623 (1962) (per curiam). If there were a decision by the Supreme Court of Arizona construing this statute, the federal courts would be bound by that decision. Gurley v. Rhoden, 421 U.S. 200, 208, 95 S.Ct. 1605, 1610, 44 L.Ed.2d 110 (1975). In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decisions of the intermediate appellate courts of the state unless there is " 'convincing evidence that the highest court of the state would decide differently.' " Community National Bank v. Fidelity & Deposit Co., 563 F.2d 1319, 1321 n.1 (9th Cir. 1977), quoting Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 n.2 (9th Cir. 1974). See West v. American Telephone and Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940), cited in Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). Because the district court did not address this issue, we cannot determine whether there is evidence that the Arizona Supreme Court would decide this issue differently than the court in Lynch ; we therefore remand to the district court to determine how the Arizona Supreme Court would interpret the statute. If the crime of adultery requires only the act of extramarital sexual relations, the three officers were disciplined for conduct which is criminal under Arizona law. If, however, a spousal complaint is an indispensable element of the crime itself, discipline of Fugate and Barnhart for the commission of a crime would be improper. A complaint against Andrade was made to the department by an unidentified woman who turned out to be his wife. Whether Andrade committed the crime on the basis of that complaint is also a question of Arizona law which we remand for consideration by the district court.

Should the district court find that the officers have committed the crime of adultery as it is defined by Arizona law, the decision of the civil service board must be upheld if discipline is constitutionally permissible. If, on the other hand, the district court should determine that the officers have not committed the crime of adultery as it is defined by Arizona law, the first charge against Andrade and Fugate cannot support the disciplinary action. It does not inexorably follow that the imposition of discipline is itself contrary to law. However, it is unclear whether the charges against the officers were deemed by the agency and the civil service commission to constitute separate or cumulative grounds for discipline. If the officers have been charged erroneously with the commission of a crime, we cannot treat the error as harmless since we do not know that a finding on the other charges alone would have resulted in the same or any discipline. Meehan v. Macy, 392 F.2d 822, 839 (D.C.Cir.1968), aff'd on rehearing en banc, 425 F.2d 472 (D.C.Cir.1969) (per curiam).

The same difficulty exists with respect to Officer Barnhart. Even though he is charged with a second crime, i.e., the commission of lewd and lascivious acts, it is not clear that the department and the civil service commission would have imposed the same or any discipline had they not determined that he had committed the crime of adultery.

Therefore, if, on remand, the district judge decides that the officers have not committed the crime of adultery, he should frame an order retaining jurisdiction pending a determination of that question by the department and the civil service board. See Railroad Commission v. Pullman Co., 312 U.S. 496, 502, 61 S.Ct. 643, 646, 85 L.Ed. 971 (1941) (jurisdiction retained pending state court proceedings). If the department and the civil service board fail to act within a reasonable time, the district judge should proceed as he deems appropriate.

We do not reach the difficult question whether discipline for extramarital sexual activity is constitutionally permissible because it is uncertain that discipline will be imposed. If, on remand, the district judge determines that the officers have committed the crime of adultery or if, despite a contrary determination, the department and the civil service board nevertheless impose the same or some modified form of discipline based on the other charges, that question may again be raised.

AFFIRMED IN PART, VACATED AND REMANDED.

BAZELON, Senior Circuit Judge, concurring in part and dissenting in part:

I agree that we should remand these section 1983 actions to the district court to determine whether the police officers' conduct violated Arizona law. I also agree that, because resolution of this question...