Madsen v. Brown

• Decision Date: 05 June 1985
• Docket Number: No. 19478,19478
• Citation: 701 P.2d 1086
• Parties: Patsy MADSEN, Gerald Lewis, Shirley Cowdell, Bonnie Wallace, and David A. Wallace, Plaintiffs and Respondents, v. Keith BROWN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1086

701 P.2d 1086

Patsy MADSEN, Gerald Lewis, Shirley Cowdell, Bonnie Wallace and David A. Wallace, Plaintiffs and Respondents, v. Keith BROWN, Defendant and Appellant.

No. 19478.

Supreme Court of Utah.

June 5, 1985.

Douglas J. Parry, Michael M. Later, Salt Lake City, for defendant and appellant.

Barrie A. Vernon, Tooele, for plaintiffs and respondents.

CULLEN Y. CHRISTENSEN, District Judge:

Pursuant to U.C.A., 1953, §§ 77-6-1 to -9, adopted in 1980, appellant, the mayor of Grantsville, was removed from office upon the jury's determination that appellant's participation in the killing of dogs constituted sanctionable "malfeasance in office." Appellant contends that removal proceedings are "quasi-criminal" in nature and seeks clarification as to his right against self-incrimination and his right to a unanimous verdict in such proceedings. Appellant also asserts that the jury applied the wrong standard of "malfeasance in office" because both the jury instructions and counsel's closing arguments allegedly suggest that appellant could be removed from office without a showing that he was acting under a specific mayoral duty when the alleged wrongful acts or omissions occurred.

On appeal, appellant seeks an order vacating the judgment of removal and reinstating him as mayor. Alternatively, he seeks a new trial.

On July 22, 1982, Officer Candelaria of the Grantsville City Police Department picked up four loose dogs after receiving a citizen's complaint. Loose dogs were customarily disposed of at appellant-mayor's farm. While Candelaria and Police Chief Maycock were enroute to the farm, they saw appellant in downtown Grantsville. They stopped and told appellant where they were going, and appellant decided to accompany them. Upon arrival at the farm, Maycock shot and killed three dogs, and appellant shot and killed one dog (allegedly to demonstrate the quickest and most humane method to destroy the animals).

On July 27, 1982, Wayne Madsen discovered the carcass of his dog on appellant's property, along with the remains of several other dogs. Madsen invited reporters and investigators to the site, whereupon appellant, assisted by Maycock, removed the carcasses from the farm.

Appellant pleaded nolo contendere to a class B misdemeanor charge of cruelty to animals. Five Grantsville citizens initiated the present action, alleging that the misdemeanor constituted grounds for removal from office. The petition was later amended to charge appellant with theft, conspiracy obstruction of justice, illegal sale of property, obstruction of the collection of municipal fees, and malfeasance in office. All charges were dismissed except the issue as to whether appellant's actions constituted malfeasance in office sufficient to justify removal.

Prior to trial, appellant moved for summary judgment on the malfeasance in office charge on the grounds that there were no disputed facts and that any misconduct by appellant was performed in his private rather than his official capacity. The motion was denied, and the case went to trial. At the conclusion of the presentation of evidence, appellant moved for a directed verdict, alleging that no evidence had been introduced that appellant had any official duty with respect to animal control. This motion was also denied, and the jury returned a verdict of guilty. Subsequent motions for judgment notwithstanding the verdict or a new trial were also denied. Pursuant to the judgment of guilty of malfeasance in office, appellant has been removed from office.

Removal Procedures

Appellant asserts that the trial court committed reversible error by denying appellant the right against self-incrimination and instructing the jury that appellant could be removed from office by a less-than-unanimous verdict. Respondents contend that neither issue was properly preserved for appeal. Under long-standing principles recently reiterated in several Utah cases, ¹ issues not raised by the parties at the trial court level will not be considered for the first time on appeal. Because the record is devoid of any indication that appellant asserted the right against self-incrimination or was denied the protections afforded by the right, the self-incrimination issue is not properly before this Court.

Respondents also urge that the issue as to whether the removal of an officer requires a unanimous verdict was not properly preserved for appeal because appellant failed to exercise his right to poll the jury under Rule 47(q) of the Utah Rules of Civil Procedure. Rule 47(q) was not intended to impose such a requirement, nor does it contemplate the situation now before this Court. The clear intent of the polling provision is to allow the parties the opportunity to ensure that the requisite number of jurors concurred in the verdict. It is not a vehicle to bring into issue the court's instruction as to the number of concurring jurors required to reach a verdict. Appellant's timely objection to the instruction that a plurality of six of eight jurors was required to reach a verdict was therefore sufficient to preserve the issue for appeal.

The issue as to the number of jurors required to reach a verdict is an issue of law and as a result requires a standard of review as described in Betenson v. Call Auto & Equipment Sales, Inc., Utah, 645 P.2d 684 (1982), and Automotive Manufacturers Warehouse, Inc. v. Service Auto Parts, Inc., Utah, 596 P.2d 1033 (1979). Because this Court stands in as good a position as the trial court to determine this legal issue, this Court is not bound to defer to the trial court's determination as it would be if the issue were strictly factual.

Applying this standard, the Court first examines the origins of its removal authority. Paraphrasing language from State v. Jones, 17 Utah 2d 190, 195, 407 P.2d 571, 574-75 (1965), we restate the principle that the privilege of choosing and electing public officials and the attendant authority to repudiate them belong exclusively to the people. In order to preserve this fundamental privilege and the greatly valued balance of power between one branch of government and another, the Court may not act to remove a public officer unless the people have granted the Court clear legislative or constitutional authority to do so. The Court has no inherent authority to remove from office a duly elected public officer.

Accordingly, the Court must look to the Constitution of Utah and the removal statute to determine what role it is prescribed to play in removal proceedings. The Constitution of Utah does not empower the Court to remove public officers or prescribe procedures therefor. Rather, article VI, section 21 empowers the legislature to establish the manner in which officers may be removed: "All officers not liable to impeachment shall be removed for any of the offenses specified in this article [high crimes, misdemeanors, or malfeasance in office], in such manner as may be prescribed by law." (Emphasis added.)

The legislature, as recently as 1980, exercised its sole prerogative to prescribe the manner by which a public officer may be removed from office. The new removal statute significantly alters the procedures prescribed under the former law. The new removal statute deletes, inter alia, the provision that a removal trial "must be by jury and be conducted in all respects in the same manner as the trial of an indictment or information for a felony." See U.C.A., 1953, § 77-7-11, repealed in 1980. Trial procedures in removal proceedings currently are established under U.C.A., 1953, § 77-6-7, as amended, which states as follows: "If the defendant denies the accusation or refuses to answer or appear, the court shall proceed to try the accusation. The rights of the parties and procedures used shall be the same as in any civil proceeding." (Emphasis added.)

The above statute apparently provides that appellant does not have a right to an instruction that differs from that to which he would be entitled in any civil proceeding. Under Rule 47(q) of the Utah Rules of Civil Procedure, a verdict in a civil proceeding only requires the concurrence of three-fourths of the jurors.

Appellant bases his contention that he was entitled to an instruction that a unanimous verdict was required for removal on the language of U.C.A., 1953, § 77-6-8, as amended, which states in part as follows: "If the defendant admits the accusation or is convicted, the court shall enter judgment against him directing the defendant be removed from office and setting forth the causes of removal." (Emphasis added.)

Appellant asserts that the word "convicted" requires the application of criminal standards of proof, including both a beyond-a-reasonable-doubt standard and a unanimous verdict. Appellant also urges that State v. Geurts, 11 Utah 2d 345, 359 P.2d 12 (1961), and State v. Jones, supra, establish that removal procedures are "quasi-criminal" in nature, and therefore, the number of jurors required to remove an officer should be the same as in a criminal proceeding.

Appellant points to the substantial reputational interests of the accused in a removal proceeding and suggests that because a removal judgment declares the accused unfit to retain the public trust, rather than merely assessing money damages, the accused is entitled to criminal procedure safeguards. Appellant also points to the public's interest in protecting its duly elected public officers. He argues that because a removal action allows the voice of only a few citizens to negate the vote of the electorate, the jury should be required to be unanimous in its decision.

Removal proceedings, however, are statutory proceedings not of common law origin. State v. Jones, 407 P.2d at 572. Where the legislature has clearly spoken as to the procedures to apply to removal trials and the constitutionality of the statute is not at issue, the Court is not at liberty to consider the wisdom of such procedures or apply procedures that...