Gray v. City of Florissant

• Decision Date: 28 August 1979
• Docket Number: No. 40537,40537
• Citation: 588 S.W.2d 722
• Parties: John GRAY, Appellant, v. CITY OF FLORISSANT, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 722

588 S.W.2d 722

John GRAY, Appellant, v. CITY OF FLORISSANT, Missouri, Respondent.

No. 40537.

Missouri Court of Appeals, Eastern District, Division Three.

Aug. 28, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 15, 1979.

Gary H. Lange, Bartley, Goffstein, Bollato & Lange, Clayton, for appellant.

V. Jack Muehlenkamp, Dellwood, for respondent.

REINHARD, Presiding Judge.

Plaintiff appeals from an order of the circuit court affirming the Personnel Commission of the City of Florissant in its disciplinary action against plaintiff for violation of Section 14-30, Physical Requirements for Commissioned Personnel, Manual of Policies and Procedures of the Florissant Police Department.

Plaintiff became a police officer with the City of Florissant on July 10, 1967. The record reveals that plaintiff's application for employment as an officer was initially rejected because he was overweight. Plaintiff was hired after having lost some weight and apparently he was hired pursuant to a stipulation that he would not again become overweight. On April 1, 1976, specific minimum-maximum weight regulations for all commissioned personnel, including plaintiff, were established as part of the Manual of Policies and Procedures. ¹

For a male officer of plaintiff's height (5'5 ) the chart provided a weight range of minimum: 128 pounds, maximum: 171 pounds. Applying the 10% Allowance to this range, plaintiff could have weighed a maximum of 188 pounds and still have been in compliance with the regulation standards. In November 1976 plaintiff was first informed that his weight exceeded the allowable maximum for his height. He was given 90 days in which to comply with the regulation. On June 24, 1977 seven months from the time of initial notice plaintiff was informed that he would suffer the loss of six recreational days as a result of his inability to lose weight. Plaintiff appealed to the Personnel Commission of the City of Florissant and, following a hearing, the Commission sustained the Police Chief's disciplinary order. The Commission found that plaintiff "was given ample time To at least make an attempt to lose weight or offer evidence from a doctor of his choice that, for some reason, he was unable to physically lose or make an attempt to bring himself to the proper weight guidelines . . .". (Emphasis in the original). The Commission confirmed the finding that plaintiff was in violation of Section 14-30.

At the Personnel Commission's hearing, the City offered into evidence the regulation, reports of Officer Gray's weight at various intervals following his initial notice to comply, and evidence showing that Gray actually gained weight following the first notification. Plaintiff confined his evidence to that which tended to show that he was a good officer and that his weight had not affected his ability to function as an officer.

On appeal, plaintiff raises two points which, as alleged in the brief, overlap. However, we perceive plaintiff's points to be that (1) the rule is unconstitutional on its face and that the trial court erred in failing to rule on the constitutional issue, and (2) the application of the rule to him is arbitrary and capricious.

Since plaintiff did not properly assert his constitutional claim in his Petition for Review, it was not preserved for circuit court review and thus the court committed no error by not expressly ruling on it. To properly raise a constitutional question plaintiff is required to: (1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; (4) preserve the constitutional question throughout for appellate review. City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372 (Mo. banc 1949); Perez v. Webb, 533 S.W.2d 650 (Mo.App.1976).

Plaintiff's Petition for Review states only that the action of the agency "is violative of constitutional provisions." Such allegations do not comply with the second requirement set forth in City of St. Louis v. Butler Company, supra, for preserving constitutional questions for review. Furthermore, courts reviewing administrative decisions are not required to scour the record to perceive exactly what constitutional question a litigant is raising. Perez v. Webb, supra.

Although the constitutional claim has not been properly preserved, we have nevertheless considered the substance of plaintiff's constitutional challenge. In his first point on appeal, plaintiff states only that the regulation creates an irrebuttable presumption violating his rights to due process. Plaintiff relies upon Turner v. Department of Employment Security and Board of Review of the Industrial Commission of Utah, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975) as authority for this due process challenge. In Turner, the Supreme Court struck down a Utah statute which made pregnant women ineligible for unemployment benefits for a period extending from 12 weeks before the expected date of birth until six weeks after childbirth. The Court held the statute an unconstitutional violation of the Fourteenth Amendment noting that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause." Id. at 46, 96 S.Ct. at 250.

Turner is, however, inapplicable to this case. In Weinberger v. Salfi, 422 U.S. 749 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Supreme Court drew a distinction between those cases involving irrebuttable presumptions impinging upon fundamental rights pertaining to matters of marriage and family life and those wherein legislative choices concerning matters of economics, business and social policy were involved. In the latter category of cases, the Court held that the appropriate standard of review was whether the regulation in question bore any rational relationship to a legitimate legislative goal, and not the more exacting scrutiny applied in cases like Turner.

Under the rational relationship standard, plaintiff bears the burden of proving that the challenged regulation is irrational and he must negative every conceivable basis upon which the rule may be justified. Barhorst v. City of St. Louis, 432 S.W.2d 843 (Mo. banc 1967). The fact that a rule-making body has not stated any specific policy goal is not fatal to a finding that a regulation is valid. In reviewing the regulation,...