Ferguson Police Officers Ass'n v. City of Ferguson, 46696

Citation670 S.W.2d 921
Decision Date17 April 1984
Docket NumberNo. 46696,46696
PartiesThe FERGUSON POLICE OFFICERS ASSOCIATION, a not-for-profit corporation, Plaintiff-Appellant, v. The CITY OF FERGUSON, Defendant-Respondent.
CourtCourt of Appeal of Missouri (US)

David Michael Johnson, Clayton, for plaintiff-appellant.

Alphonse E. Nick, St. Louis, for defendant-respondent.

KAROHL, Presiding Judge.

Plaintiff-appellant Ferguson Police Officer's Association (hereinafter FPOA), a not-for-profit corporation, sought a declaratory judgment that Article IV, § 29 of defendant-respondent City of Ferguson's Charter was unconstitutional in that it violated the resident members' freedom of speech and association guaranteed by the First Amendment of the United States Constitution and Article I, Sections 8 and 9 of the Missouri Constitution. 1 The FPOA also asked for an injunction preventing enforcement of § 29. Section 29 severely restricted Ferguson employees' political activities regarding city council elections. The trial court found § 29 to be valid, constitutional, and not in violation of the FPOA's rights and denied the FPOA relief.

Plaintiff corporation is a fraternal organization composed of thirty-five of the fifty-nine employees of the Ferguson Police Department. Twenty FPOA members are residents of the City of Ferguson. The FPOA is affiliated with the International Fraternal Order of Police. Among the corporation's stated purposes are the promotion of the welfare of its members and the improvement of its members' working conditions.

Defendant Ferguson is a charter city in St. Louis County. Ferguson's Charter was adopted by the electorate in 1954, and the challenged section has not been amended since adoption. It provides as follows:

Section 29. ADMINISTRATIVE OFFICERS NOT TO ENGAGE IN POLITICAL ACTIVITY. Neither the City Manager nor any person holding an administrative office or position under his supervision shall, while holding the office or position, be a candidate for City Councilman or engage, directly or indirectly, in sponsoring any person as a candidate for Councilman or in any way electioneer for or against a candidate for Councilman. All such persons shall retain the right to vote as they choose and express their opinions on all political subjects. Any person violating the provisions of this section shall be removed in the manner provided in this Charter for the removal of persons holding the office or position. 2

The FPOA sought a declaratory judgment interpreting the Charter provision and finding it unconstitutional insofar as it prohibits Ferguson police officers who are also Ferguson residents from (1) making voluntary contributions of money or something else of value to candidates for city council; (2) making voluntary contributions of time while off duty and out of uniform to the campaign of a candidate for city council; (3) speaking publicly while off duty and out of uniform on behalf of or in opposition to a council candidate. The resident officers contended they should be permitted to speak both literally and figuratively, i.e. to wear buttons and display yard signs and bumper stickers. Police officers who were also Ferguson residents testified at trial that they wanted to take these actions but did not do so because they were afraid they would be fired for violating § 29. Ferguson agreed that it would discipline violators who committed "overt" acts such as those mentioned above.

Our first concern is whether the FPOA had standing to bring the suit.

[T]he matter of standing does not relate to legal capacity to sue, a defense waived unless timely asserted [Rule 55.27(a) ], but to the interest of an adversary in the subject of the suit as an antecedent to the right to relief. It is a matter, in a sense, jurisdictional in limine and so within the notice of a court, even on appeal, for dismissal.

State ex rel. Schneider v. Stewart, 575 S.W.2d 904, 909 (Mo.App.1978).

Generally the plaintiff must have an interest of its own in the outcome to bring suit. Crigler v. Frame, 632 S.W.2d 94, 95 (Mo.App.1982). The regulation at issue here is directed at the political rights of individuals, and it is those individuals whose jobs would be put in jeopardy should a violation occur. See Wisconsin State Employees Association v. Wisconsin Natural Resources Board, 298 F.Supp. 339, 343-44 (W.D.Wis.1969). Nevertheless courts have been increasingly willing to allow associations to bring suit as representatives of their members. United Federation of Postal Clerks v. Watson, 409 F.2d 462, 469 (D.C.Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 212, 24 L.Ed.2d 178 (1969). In Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 133-34 (Mo.App.1982), the court applied the United States Supreme Court's test for associational standing to a Missouri nonprofit incorporated association.

A voluntary membership association .... may have standing in one of two ways--either (1) by seeking judicial relief from injuries to its own rights (derivative capacity) or (2) by seeking to vindicate whatever rights its members may enjoy (representative capacity). Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975).


The criteria which must be met before an association can bring suit on behalf of its members were summarized and restated by the [United States Supreme] Court as follows: (1) the members must have standing to bring suit in their own right; (2) the interests the association seeks to protect must be germane to its purpose; and (3) neither the claim asserted nor the relief requested must require the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).

648 S.W.2d at 133.

We apply the three criteria taken from Hunt to the FPOA to determine whether it is a proper party to bring this suit. Initially, we must determine if the FPOA members themselves could have brought the suit. The possibility of representational standing does not eliminate the need for a justiciable controversy. "The association must allege that its members, or any of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." Warth v. Seldin, 442 U.S. 490, 511, 95 S.Ct. 2197, 2211 (1975).

Although plaintiff's petition alleged only that in the past the members had wanted to participate in elections for council but had not done so, resident members of the organization testified at trial, without objection, of a present desire to perform specific acts with regard to the council election, which they would perform but for the provision of the Charter. The City Charter calls for termination of employees who violate the challenged provision. The city manager indicated that all of the acts proposed by the resident members violated § 29, and that some disciplinary action would be taken for an "overt" violation. Although the City might choose to exercise some discretion in disciplining a particular violator, the Charter called for termination, and the City did not deny that they would take such action in a given case.

The plaintiff sought declaratory and injunctive relief. The purpose of the Declaratory Judgment Act "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and [it] is to be liberally construed and administered." § 527.120, RSMo 1978; see also Pollard v. Swenson, 411 S.W.2d 837, 841 (Mo.App.1967). The broad remedy afforded by the Declaratory Judgment Act, however, does not eliminate the necessity of a justiciable controversy. City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 413 (1942). The plaintiff must present a case in which specific relief can be given in a decision which will be res judicata as to the issues presented. 161 S.W.2d at 413. The individual members request a declaration as to whether the provision prohibits particular political acts and, if so, whether it is constitutional insofar as it forbids the acts. The Declaratory Judgment Act is peculiarly suited to interpreting and declaring the validity of statutes, ordinances and provisions of a charter such as we have here. See City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 237 S.W.2d 94, 96 (1951); City of Joplin v. Jasper County, 161 S.W.2d at 412-413.

"There must be a sufficiently complete state of facts presenting issues ripe for determination before a court may declare the law." 161 S.W.2d at 413. A difference of opinion is not sufficient. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 72 (banc 1949). The question in the instant case is how far the officers must go before they have a case ripe for determination. An injury need not have occurred prior to bringing a declaratory action; one of the main purposes of the remedy is to resolve conflicts in legal rights before a loss occurs. Higday v. Nickolaus, 469 S.W.2d 859, 863 (Mo.App.1971); see also State ex rel. Eagleton v. McQueen, 378 S.W.2d 449, 452 (Mo. banc 1964); Marshall v. Kansas City, 355 S.W.2d 877, 879 (Mo. banc 1962). In the instant case the members contend that the provision violates their First Amendment rights. "Requirements of ripeness are less strictly construed in the first amendment context due to the chilling effect on protected expression which delay might produce." Planned Parenthood Association of Chicago Area v. Kempiners, 700 F.2d 1115, 1122 (7th Cir.1983). When the First Amendment is at issue, the injury occurs not only when an employee loses his or her career by challenging the provision and losing, but when countless employees lose their political freedom by obeying an improper regulation until someone successfully challenges it. 13 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3532 at 251 (1975). See Dombrowski v. Pfister,...

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