Milani v. Miller

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Milani v. Miller, 515 S.W.2d 412 (Mo. 1974)
• Decision Date: 16 December 1974
• Docket Number: No. 2,58390,Nos. 58389,s. 58389,2
• Parties: Sylvio MILANI, Appellant, v. Delbert MILLER, Jr., et al., Respondents. Edwin SCHARIO, Appellant, v. Delbert MILLER, Jr., et al., Respondents

Page 412

515 S.W.2d 412

Sylvio MILANI, Appellant, v. Delbert MILLER, Jr., et al., Respondents.

Edwin SCHARIO, Appellant, v. Delbert MILLER, Jr., et al., Respondents.

Nos. 58389, 58390.

Supreme Court of Missouri, Division No. 2.

Dec. 16, 1974.

London & Greenberg, Norman S. London, Lawrence J. Fleming, St. Louis, for appellants.

Jack L. Koehr, City Counselor, John J. Fitzgibbon, Associate City Counselor, St. Louis, for respondents.

HENRY I. EAGER, Special Commissioner.

This cause involves petitions for review in two cases which were heard before the Board of Police Commissioners of the City of St. Louis. Both decisions were affirmed. Since they involve the same legal contentions, the appeals were consolidated. The appellants have not included in either transcript filed here the evidence heard by the Board, so all findings of fact made by it will be deemed to be conclusively established. Counsel say, in fact, that 'the sufficiency question is not raised in this appeal.' It is appellants' contention that the part of Rule 7 of the Police Manual (7.001 and 7.002) involved here and to be discussed later, is invalid on its face as violative of the due process clauses of the federal and Missouri Constitutions. We have had some doubt of the sufficiency of the procedure employed to raise this issue, and respondents have questioned it, but the matter involved is of some public interest and importance, and we accept jurisdiction; this is particularly appropriate since, if we now transfer the cause, we might be required later to accept it on re-transfer after opinion.

The respondents, members of the Board, have filed a motion to dismiss the appeals for deficiencies in appellants' brief. The brief is deficient in certain respects, but for the reason stated above, we have concluded that we should decide the merits. We sought to supplement one of the transcripts by direction to the appellants' attorneys, through our clerk's office; this was finally accomplished by direct communication with the Circuit Clerk.

Section 84.170, RSMo 1969, V.A.M.S. gives to the St. Louis Board of Police Commissioners the authority to make all such rules and regulations (with exceptions not involved here) as it may judge necessary for the 'discipline, trial and government of the police.' Rule 7.001, thus enacted, provides in part that every member of the department shall conduct themselves (sic) in such a manner that no discredit will be brought upon the Department or themselves (sic) in particular, and (Rule 7.002(c)) that this shall include any conduct, immoral or otherwise, unbecoming to a member of the Department.

By a charge and specifications Officer Milani, who was a Sergeant, was charged with violating Rule 7.002(c) by disturbing the peace of a named individual, and also in that he did at a named time and place attempt to strike two persons with his automobile, all 'without lawful justification or excuse, contrary to the good order and discipline of the Department.' After a hearing, with counsel present, the Board found Milani guilty as charged, found the facts to be as stated, reduced him from Sergeant to Patrolman, and directed the Chief of Police to reassign him. In so doing the Board found: that although off duty at the time Milani was subject to the Rules and Regulations; that after some shouting in a bar at one of two persons named, he did, at a specified street location, operate his automobile 'in such a manner, so as to strike either or both' of such persons requiring them to take affirmative action in avoidance. It concluded that it had the power under § 84.170 aforesaid to discipline the accused, that it had the right to apply its reasonable judgment and discretion to the evidence based upon 'its experience in the government and administration of the Department,' and that Milani had violated Rule 7, Section 7.002(c) and 'brought discredit upon the Department and himself.' A petition for review was filed alleging the facts generally and a contention that the Rule in question was 'so vague and indefinite as not to provide any reasonable standard of enforcement nor to properly and adequately advise Plaintiff of what acts are prohibited or required of him,' and therefore was violative of both the United States and Missouri Constitutions; the petition also alleged that the Rule purported to make Milani responsible for acts in no way connected with his duties as a police officer and thereby violated his constitutional 'rights of privacy.' The Circuit Court affirmed on review, and after an unsuccessful 'Motion to Amend Judgment' Miliani appealed.

Appellant Schario was charged with a violation of Rule 7.001, in that he brought discredit upon the Department and himself by driving a certain police van cruiser over the curb and upon and along the public sidewalk, at a stated time and place while on official duty. This charge is amplified somewhat by statements in Schario's petition for review to the effect that he was charged in 'a warrant' with common assault upon a named person, by means of a police cruiser on the day in question; that charge very clearly arose out of the same acts as were charged by the Board. It was further alleged in the petition: that the assault charge was dismissed about six months after for want of prosecution; that he had been suspended from duty without pay, but was reinstated with back pay after the dismissal. The Board's charges against him were filed shortly after that reinstatement.

The Board also filed a second charge and specification against Schario to the effect that he had violated Rule 3, Sec. 3.108(h) requiring that all officers shall use police vehicles in a safe manner, avoiding hazardous or careless operation, in that he drove the police van upon the sindewalk at a specified time and place, endangering the occupants of the vehicle, pedestrians, and the property of the city. A full hearing was held on both charges with counsel present. The Board made findings of fact, stated its conclusions of law, and found Schario guilty on both charges. On the first charge his punishment was the loss of pay during the period of his suspension, from January 29, 1972 to August 9, 1972; on the second, he was reduced in rank to probationary patrolman for a period of 30 days. The Board found: that Schario had, as charged, driven a police cruiser onto the sidewalk, that he had thus endangered the lives and safety of the occupants of the vehicle, the property of the city, and pedestrians, especially one Nathaniel Jackson who was standing on the sidewalk; that this was done in conveying certain prisoners to a hospital and without justification or legal excuse, and contrary to good order and discipline. The Board stated certain general conclusions as to its authority, rights and discretion in the premises, and further concluded that Schario had brought discredit upon the Department and himself, and had endangered the lives and safety of the occupants of the said vehicle, pedestrians, and the property of the city. Schario filed a petition for review stating the basic facts, the pendency and dismissal of the assault charge against him, and the discipline imposed. He further alleged: that the order of the Board was arbitrary; that it constituted an abuse of discretion; that the regulations in question are so vague as not to provide any reasonable standard of enforcement or properly advise him what acts are prohibited, and that they are violative of the due process and equal protection clauses of the United States and Missouri Constitutions. He also alleged that he had been punished twice for the 'same alleged conduct.' The Circuit Court affirmed on review and Schario appealed.

The primary issue in these cases is the constitutional validity of Sections 7.001 and 7.002(c) of Rule 7, upon their faces and as applied in these cases. We shall consider these sections together. The first requires that an officer's conduct shall be such that no discredit will be brought upon the Department in general or upon himself; the second incorporates into the first any conduct, immoral or otherwise, unbecoming to a member of the Department. We see no essential difference in the two, from the standpoint of validity. Schario was charged under 7.001 and Milani under 7.002(c). Chapter 84 of our statutes and particularly § 84.170 delegates very broad powers and discretion to the St. Louis Police Board in all matters of regulation and 'discipline, trial and government of the police.' The granting of a large degree of discretion to that Board was upheld in ABC Security Service, Inc. et al. v. Miller et al., 514 S.W.2d 521 (Mo.1974), as against the claim that legislative power had been unconstitutionally delegated. By analogy, much that was said in that opinion is applicable here: 'However, the tendency is toward greater liberality in permitting grants of discretion, Milgram Food Stores, Inc. v. Ketchum, 384 S.W.2d 510 (Mo.1964), and the validity of any grant of discretion will depend largely upon the nature of the activity with respect to which it is exercised. Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485 (1940). The courts recognize three general exceptions to the strict rule which requires the inclusion of standards in an ordinance or statute when a delegation is made to an administrative body: (1) where the ordinance or statute deals with situations which require the vesting of some discretion in public officials, and where it is difficult or impracticable to lay down a definite, comprehensive rule; (2) where the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety and general welfare; (3) where personal fitness is a factor to be taken into consideration.'

In Schrewe v. Sanders, 498 S.W.2d 775 (Mo.1973), the dismissal of a police officer of St. Louis for 'conduct unbecoming of an officer' in violation of Rule 7.002 was upheld. The specifications were that...