Fitzgerald v. City of Maryland Heights

• Decision Date: 21 August 1990
• Docket Number: No. 57124,57124
• Citation: 796 S.W.2d 52
• Parties: Larry D. FITZGERALD, Petitioner-Appellant, v. CITY OF MARYLAND HEIGHTS, Missouri, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 52

796 S.W.2d 52

Larry D. FITZGERALD, Petitioner-Appellant, v. CITY OF MARYLAND HEIGHTS, Missouri, et al., Defendants-Respondents.

No. 57124.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 21, 1990.

Michael A. Turken, Leslie Ann Broome, St. Charles, for petitioner-appellant.

Frank Susman, Clayton, for defendants-respondents.

SATZ, Presiding Judge.

Petitioner, Mr. Larry D. Fitzgerald, a former mayor of the City of Maryland Heights, appeals his impeachment by the City Council of that third class city. The Mayor petitioned the circuit court for review of the City Council's decision, joining both the City Council and the individual Councilmen as respondents. The court affirmed the Council's decision. We likewise affirm that decision.

Section 77.340 ¹ authorizes the impeachment of the Mayor "for cause shown." ² The Mayor argues this statutory language is unconstitutionally vague and, therefore, the statute is void. We disagree.

The "void-for-vagueness" doctrine stems from the Due Process Clauses of the 14th Amendment, United States Constitution, and Art. 1, § 10, Missouri Constitution. These clauses require that statutes whose enforcement may result in a deprivation of liberty or property be worded with precision sufficient to enable reasonable people to know what conduct is proscribed so they may conduct themselves accordingly. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-228 (1972); State ex rel. Cook v. Saynes, 713 S.W.2d 258, 260 (Mo. banc 1986). This requirement of reasonable precision is also directed to those who must apply the statutes and, thus, makes arbitrary or discriminatory law enforcement less likely. Id. By focusing on whether the "for cause shown" standard in § 77.340 provides precision consistent with due process, both parties implicitly acknowledge that the Mayor had a constitutionally protected property interest in retaining his office until the expiration of his term. Therefore, we only decide whether the "for cause shown" standard in § 77.340 is sufficiently precise to pass constitutional muster.

"[T]he degree of vagueness that the Constitution tolerates--as well as the relative importance of fair notice and fair enforcement--depends in part on the nature of the [challenged] enactment." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, 371 (1982). There is greater tolerance of non-criminal laws "because the consequence of imprecision is qualitatively less severe." Id. Language which reasonable people can understand is not impermissibly vague merely because it requires interpretation on a case-by-case basis. Saynes, supra, 713 S.W.2d at 261.

The parties have not cited, nor has our research disclosed, any Missouri case addressing the precise constitutional issue of whether a statutory "for cause" standard is void for vagueness. In the context of § 79.240, which authorizes the impeachment of mayors of fourth class cities, this Court, in dicta, has construed the phrase "for cause shown" to mean "a legally sufficient ground or reason," the determination of which necessarily depends upon the facts of the particular case. State ex rel. Hall v. Wolf, 710 S.W.2d 302, 303 (Mo.App.1986). This definition is consistent with our Supreme Court's interpretation of what "for cause" meant in a predecessor to § 84.150, which permits removal of police officers:

"for cause" means legal cause. It "must be one which specifically relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public."

McCallister v. Priest, 422 S.W.2d 650, 657 (Mo. banc 1968).

Other courts confronted with challenges to the constitutionality of a "for cause" standard have uniformly held that this language is sufficiently precise to pass constitutional muster. E.g. Napolitano v. Ward, 317 F.Supp. 79, 81 (N.D.Ill.1970) Sarisohn v. Appellate Division, Second Dept., 265 F.Supp. 455, 458-59 (E.D.N.Y.1967); Friedman v. New York, 24 N.Y.2d 528, 301 N.Y.S.2d 484, 492, 249 N.E.2d 369, 377 (1969). See also Lehman v. Alabama Board of Public Accountancy, 263 U.S. 394, 395, 44 S.Ct. 128, 129 68 L.Ed. 354, 355 (1923). These courts define the term "for cause" in language similar to that used in Wolf, supra, 710 S.W.2d at 303, and McCallister, supra, 422 S.W.2d at 657. More important, according to these courts, the primary significance of a "for cause" standard is to create a constitutional right to a hearing at which specific cause must be demonstrated. E.g. Napolitano, supra, 317 F.Supp. at 81 ("the words [for cause] connote the necessity for a hearing"); Sarisohn, supra, 265 F.Supp. at 458 ("the phrase employed is only a practical means of providing flexibility"). Based on these interpretations, these courts have held that a "for cause" standard is not void for vagueness. We find their reasoning persuasive.

It would be practically impossible and socially undesirable to enumerate in a statute all conceivably valid grounds for removing a public official. See, e.g., Friedman, supra, 301 N.Y.S.2d at 491, 249 N.E.2d at 376. The inevitable incompleteness of any list of specific causes for removal would be detrimental to the public welfare, which government employees in general and elected officials in particular, are obviously supposed to serve. The "for cause" standard provides the flexibility necessary for assessing the performance of public officials, while also creating a constitutionally protected property interest. The office holder can be deprived of that property interest only upon notice of the specific causes for his proposed removal and after an opportunity to be heard. See, e.g. Sarisohn, supra, 265 F.Supp. at 458.

An additional factor causes us to adopt an even more precise definition of the "for cause" standard, as defined in McCallister, supra, in the context of a statute authorizing the removal of political officials. Political officials obviously make a number of political decisions, the wisdom of which depends upon one's political perspective. Elected political officials are answerable to their constituents for such decisions, either at regularly scheduled elections or special recall votes. § 77.650. City councils should not subvert the electorate's will by impeaching mayors for purely political reasons. Therefore, the appropriate meaning of the "for cause" standard for impeachment of the elected Mayor here should not only "specifically [relate] to and [affect] the administration of [his] office, and ... be ... of a substantial nature directly affecting the rights and interests of the public," McCallister, supra, 422 S.W.2d at 657; it should also be limited to objective reasons which reasonable people, regardless of their political persuasion, could agree would render any mayor's performance ineffective. Such cause would include acts of misfeasance, the improper The Mayor next argues that even if § 77.340 is not unconstitutionally vague, the bill of impeachment on which he was tried was so indefinite it violated the notice required by procedural due process. We disagree.

performance of some act which may lawfully be done, malfeasance, the commission of some act wholly beyond actor's authority, and nonfeasance, the failure to perform a required duty. See, State ex rel. Powell v. Wallace, 718 S.W.2d 545, 549 (Mo.App.1986) and Wolf, supra, 710 S.W.2d at 304-05.

Impeachments of third class city mayors are regarded as administrative proceedings, which do not require that charges be levied with the precision of a criminal indictment or information. Wallace, 718 S.W.2d at 548 (Mo.App.1986). A bill of impeachment which fairly apprises the charged party of the factual allegations for which his removal from office is sought is sufficiently precise to satisfy constitutional requirements. Id.

This Court in Wallace held the mayor impeached in that case was given sufficient notice by charges that he failed to manage the police department competently, misled the city council and the media about the extent of the city's fiscal problems, and lacked the administrative ability to perform his public duties. All nine charges in the bill of impeachment in the present case, are much more specific: each allegation refers to specific acts or omissions allegedly committed by the Mayor on specific dates. See Appendix. The Mayor was thus adequately apprised of the factual reasons for which his removal was sought.

The Mayor also contends that he was deprived of procedural due process because the City Council, sitting as a Board of Impeachment, refused to compel the City to respond to the Mayor's interrogatories and request for production of documents. We disagree.

The only statutorily authorized means of discovery in an administrative proceeding, such as the impeachment of a public official, are depositions, § 536.073, subpoenas and subpoenas duces tecum. § 536.077; Bland v. City of Trenton, 618 S.W.2d 438, 443 (Mo.App.1981). Methods of discovery not specifically permitted by statute are excluded; therefore, neither discovery of documents by request or motion, Id.; Macchi v. Whaley, 586 S.W.2d 70, 75 (Mo.App.1979), nor interrogatories, National Advertising Co. v. State Highway Commission, 549 S.W.2d 536, 541 (Mo.App.1977), are allowed.

A 1985 amendment to § 536.073 underscores our General Assembly's intent to restrict discovery techniques in administrative proceedings. Prior to 1985, § 536.073 consisted solely of the paragraph which now constitutes § 536.073.1. Section 536.073.1 provides in pertinent part that:

in any contested case before an agency ..., any party may take and use depositions in the same manner, upon and under the same conditions, and upon the same notice, as is or may hereafter be provided for with respect to the taking and using of depositions in civil actions in the circuit...