Miller v. City of Mission, Kan., 81-1785

• Decision Date: 11 April 1983
• Docket Number: No. 81-1785,81-1785
• Citation: 705 F.2d 368
• Parties: Harold Lee MILLER, Plaintiff-Appellee, v. CITY OF MISSION, KANSAS; Roland R. Warman, Jr.; George C. Lauber, Jerry Schmitz, Warren C. Neal, Robert M. Mellott, and William M. King, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 368

705 F.2d 368

Harold Lee MILLER, Plaintiff-Appellee, v. CITY OF MISSION, KANSAS; Roland R. Warman, Jr.; George C.

Lauber, Jerry Schmitz, Warren C. Neal, Robert M.

Mellott, and William M. King,

Defendants-Appellants.

No. 81-1785.

United States Court of Appeals, Tenth Circuit.

April 11, 1983.

James L. Eisenbrandt, Overland Park, Kan. (Sylvester Powell, Jr., of Heilbron & Powell, Kansas City, Mo., with him on brief), for defendants-appellants.

Bryan E. Nelson, Overland Park, Kan. (Mary Ellen Rose, Overland Park, Kan., with him on brief) of Alder, Nelson & McKenna, Overland Park, Kan., for plaintiff-appellee.

Before SETH, Chief Judge, McWILLIAMS, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Harold Miller sued the City of Mission, Kansas (City), its former mayor, and several former City council members under 42 U.S.C. Sec. 1983 (1976). ¹ Miller claimed that defendants' termination of his employment as assistant police chief deprived him of liberty and property interests in violation of the Fourteenth Amendment. The case was tried to a jury, which returned its verdict by answers to special questions. The court awarded damages to Miller in the amount of $288,395.

On appeal, defendants contend that: (1) the trial court erred in holding, as a matter of law, that Miller's post-termination hearing failed to provide due process; (2) the evidence of a liberty interest deprivation was insufficient to warrant presentation to the jury; (3) the evidence was insufficient to support the damage award against the individual council members; (4) the award of damages for employment compensation was improper; (5) the awards of punitive damages were improper; (6) the instruction on qualified immunity was erroneous; and (7) certain evidence was admitted erroneously. We affirm in part and reverse in part.

I. BACKGROUND

We begin with a brief recitation of the circumstances giving rise to this case, viewed in the light most favorable to the jury verdict. E.g., Gardner v. General Motors Corp., 507 F.2d 525, 527 (10th Cir.1974). A more detailed presentation of the facts will be included in our discussion of the issues on appeal.

Miller began his employment with the City as a police patrolman in 1960. He became a sergeant in 1965, and was later promoted to lieutenant and then to captain and assistant police chief. At the time of his termination he was fifty-two years old. Until his dismissal, he had never received a reprimand or been given any official notice that his job performance was unsatisfactory.

Defendant Roland Warman was elected mayor of the City in 1975. In September and October of that year, several meetings were called by Warman and attended by defendant council members. These meetings were held in private homes and were not announced to the public. Various City personnel matters were discussed, including the possible termination of both the chief of police, Ivan J. Pike, and plaintiff Miller. The mayor stated his belief that action by the council as a body was required to fire a person, and that he needed council support of his decision to terminate Miller and Pike. The city attorney advised the group that termination would have to be based on "some good reasons." Rec., vol. III, at 398.

On October 13, 1975, Miller was called to a meeting with the mayor and the city attorney, told that he was terminated, and given the option of tendering his resignation. The mayor told Miller that he was being dismissed because he was to blame for the low morale and high turnover in the police department. The city attorney informed Miller that he was entitled to a hearing; however, the City did not offer Miller either a pre-termination hearing or a private one. Miller tendered his resignation and then withdrew it shortly thereafter. His last day of work was October 16.

Miller received a letter from the mayor on October 22 informing him that he was entitled to a public hearing on his dismissal and listing seven reasons for his termination. ² Miller requested a hearing, which was held January 17, 1976. At the beginning of the hearing, Miller was given a list of additional reasons for his termination. Following the hearing the mayor refused to reinstate Miller.

The dismissal of Miller and Chief Pike generated great public interest and received extensive media coverage. The mayor publicly announced the terminations by press releases on October 16 and 17, and numerous newspaper articles on the situation appeared during this period. The January hearing was attended by a large crowd and the press.

After his dismissal, Miller sought law enforcement employment in several nearby cities without success. He also looked for employment in numerous positions unrelated to police work, and ultimately found a job selling carpets in May 1976. Miller held that job until December 1976, and was then unemployed until July 1977, when he began work as a janitor at a local school. He subsequently worked briefly as a guard at a hospital, and as a janitor for an airline company. He was employed in the maintenance department of a hospital at the time of trial.

In a pretrial hearing on the parties' cross motions for summary judgment, the district court ruled as a matter of law that Miller had been deprived of a property interest by his discharge. This ruling is not challenged by defendants on appeal. The court concluded that Miller had therefore been entitled to a pre-termination hearing unless defendants could show that extraordinary circumstances had existed at the time of termination justifying denial of that hearing. Whether such extraordinary circumstances existed was a matter left to subsequent determination.

II. DUE PROCESS

The Fourteenth Amendment prohibits a state from depriving a person of liberty or property without due process of law. "The fundamental requirement of due process is In its rulings on the cross motions for summary judgment, the district court determined as a matter of law that the hearing officer who presided over the January proceeding was biased, that the hearing was defective, and that it did not afford Miller due process. In response to defendants' motion at the close of the evidence to set aside the summary judgment, the trial judge reaffirmed these rulings and instructed the jury that the January hearing did not comply with the requirements of due process.

                the opportunity to be heard 'at a meaningful time and in a meaningful manner.' "   Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965))
                

On appeal, defendants contend that the court below erred in holding the hearing defective as a matter of law. They also urge as error the court's failure to apply the Rule of Necessity to uphold the hearing. We find these arguments unpersuasive.

An impartial tribunal is an essential element of a due process hearing. Staton v. Mayes, 552 F.2d 908, 913 (10th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); Bogart v. Unified School District No. 298, 432 F.Supp. 895, 903 (D.Kan.1977). A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing. Staton, 552 F.2d at 914-15; Bogart, 432 F.Supp. at 904. The trial court concluded that the public hearing was unfair because the hearing officer "had a prejudiced mind when he went into this case." Rec., vol. XVIII, at 1756. The hearing officer's own testimony supports this finding. Rec., vol. XVII, at 1479-81.

Due process also requires that one be given notice of the charges against him a reasonable time before the hearing is to take place. Staton, 552 F.2d at 912. The court found that the hearing process was deficient because Miller had not been given adequate notice of the charges he would have to meet. The evidence is undisputed that Miller first learned of many of the alleged grounds for dismissal when the mayor read them into the record at the beginning of the hearing. Thus the trial court did not err in concluding as a matter of law that the hearing did not provide Miller due process.

Moreover, except in emergency situations, due process requires that the hearing be held before termination becomes effective. Board of Regents v. Roth, 408 U.S. 564, 569-70, 570 n. 7, 92 S.Ct. 2701, 2705 n. 7, 33 L.Ed.2d 548 (1972); see also Hatch v. Goerke, 502 F.2d 1189, 1194-95 (10th Cir.1974). In ruling on post-trial motions, the trial court found that no "emergency existed which would justify a failure to afford plaintiff a pre-termination hearing." Rec., vol. II, at 302. Defendants do not contend on appeal that the trial court's conclusion on this issue is erroneous. Consequently, the January hearing did not satisfy due process in three particulars: it was not conducted by an impartial tribunal; it was not preceded by reasonable notice of the charges; and it was not held prior to Miller's termination.

Defendants' argument that the Rule of Necessity is applicable is without merit. Under this rule, even if a tribunal has an interest in the matter to be decided, which would ordinarily be grounds for disqualification, it may proceed if the matter cannot otherwise be heard. United States v. Will, 449 U.S. 200, 214, 101 S.Ct. 471, 480, 66 L.Ed.2d 392 (1980). Defendants have offered no reason why an unprejudiced hearing officer could not have been selected to preside over the hearing. Furthermore, defendants do not allege that the failure to give either adequate notice or a pre-termination hearing was unavoidable. The Rule of Necessity is simply irrelevant to the due process violations present in this case.

III. LIBERTY INTEREST

In its answers to special interrogatories, the jury found that Mayor Warman and the City deprived Miller of his liberty without Defendants contend that the evidence was insufficient to support the jury verdict on the issue of liberty interest deprivation. They argue that...