Pollard v. Board of Police Com'rs

• Decision Date: 15 February 1984
• Docket Number: Nos. 64637,65300,s. 64637
• Citation: 665 S.W.2d 333
• Parties: Roger POLLARD, Respondent, v. BOARD OF POLICE COMMISSIONERS, et al., Appellants. (Two cases)
• Court: Missouri Supreme Court

Page 333

665 S.W.2d 333

Roger POLLARD, Respondent, v. BOARD OF POLICE COMMISSIONERS, et al., Appellants. (Two cases)

Nos. 64637, 65300.

Supreme Court of Missouri En Banc.

Feb. 15, 1984.

Rehearing Denied March 20, 1984.

J. Emmett Logan, Karl F. Schmidt, Manfred Maier, Kansas City, for appellants.

Gerald H. Rosen, Richard H. Anton, Kansas City, for respondent.

BLACKMAR, Judge.

The respondent, Roger Pollard, was a sergeant in the Kansas City, Missouri Police Department. On July 5, 1982 he contributed $1,000, out of his own ample funds, to a political committee formed to promote the candidacy of John Carnes for nomination in a party primary for Representative in Congress from Missouri's Fifth District. Pollard's contribution was not solicited by or paid to a member of the Police Department, and was not made on public premises or while he was in uniform. The contribution was reported to the Missouri Secretary of State as required by law ¹ and was the subject of newspaper comment.

When news of Pollard's contribution came to the attention of his superiors in the police department, steps were taken to terminate his employment pursuant to the following portions of § 84.830, RSMo 1978.

1. * * * No officer or employee in the service of said police department shall directly or indirectly give, pay, lend, or contribute any part of his salary or compensation or any money or other valuable thing to any person on account of, or to be applied to, the promotion of any political party, political club, or any political purpose whatever.

7. Any officer or any employee of the police department of such cities who shall be found by the board to have violated any of the provisions of this section shall be discharged forthwith from said service. It shall be the duty of the chief of police to prefer charges against any such offending person at once....

Pollard filed suit under 42 U.S.C. § 1983 seeking an injunction against his termination, and also declaratory relief, claiming (i) that § 84.830 could not be enforced with regard to federal campaigns because the field had been preempted by certain federal legislation, (ii) that prohibition of political contributions by police officers violated his first amendment rights, and (iii) that § 84.830 deprived persons in his position of the equal protection of the laws.

The appellant Board of Police Commissioners introduced substantial evidence about the circumstances leading to the adoption of the statute under challenge. In 1932 this Court held that the existing statutes providing for state control of the Kansas City Police Department were unconstitutional. State ex rel. Field v. Smith, 329 Mo. 1019, 49 S.W.2d 74 (banc 1932). After control reverted to the city the police department became heavily politicized. Policemen who belonged to the party out of power were discharged. Those who remained, and those newly hired, were obliged to profess adherence to and to contribute a portion of their salaries to the support of the dominant political party. There followed substantial discoveries of corruption touching not only the police department but the entire governmental structure of Kansas City and Jackson County. ²

The predecessor of § 84.830 was enacted in 1939 as a part of the act returning the Kansas City Police Department to state control by placing it under the direction of a board consisting of the mayor and four commissioners appointed by the governor. Laws of Missouri, 1939 p. 545. The statute was enlarged in 1943, when the provision now before us was added. ³ The evidence showed that compulsory political contributions from public employees (known colloquially as "the lug") ⁴ were important to a scheme of political control.

The appellants sought to demonstrate by evidence and argument that the challenged portion of the statute was designed to protect police officers and the public from political impaction of the law enforcement machinery. The law seeks to assure persons aspiring to careers in law enforcement that they are not obliged to make public display of political affiliation or defer to the wishes of political dignitaries in order to guarantee retention and promotion, and that they may have the full benefit of their often meager compensation undiminished by the lug. The statute additionally serves to proclaim that police protection will be available to the public, free from political overtones, and that the police will deal impartially with all who give them concern. The legislature may have had the further thought that ranking police officers might function as political power brokers if they could freely induce contributions from their subordinates. All of these reasons are matters of substantial state interest and concern. We of course are not concerned with the wisdom of the legislation, and the factual background is appropriate only to demonstrate the considerations which might have influenced the legislature.

The trial judge, although recognizing that there is "a vital state interest in eliminating corruption from the police department, in eliminating political interference," nevertheless held that the area had been preempted by federal legislation, insofar as federal elections are involved, and that the statute deprived Pollard of first amendment rights. Reinstatement with back pay was ordered along with attorneys' fees pursuant to 42 U.S.C. § 1988. The judge analyzed the issues and stated his conclusions in a thoughtful memorandum opinion, which we have considered carefully. We nevertheless disagree with his conclusions and reverse the judgments. ⁵

I. Preemption

The trial court found preemption in the wording of 2 U.S.C. § 453, reading as follows:

The provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.

2 U.S.C. § 453 assumed its present form in 1974, as a part of a bill amending a 1971 enactment known as the "Federal Election Campaign Act of 1971." ⁶

The 1971 statute expressed a purpose as follows:

To promote fair practices in the conduct of election campaigns for Federal political offices ...

The statute contained four titles, covering subject matter as follows: (1) campaign communications, treating of relations between political campaigns and the media (2) amendments to the Criminal Code, Title 18, U.S.C.; (3) disclosure of federal campaign funds; and (4) "General Provisions," including in Section 403, then codified as 2 U.S.C. § 453, a disclaimer of federal preemption. None of the provisions had the least relationship to the protection of the public service from political influences.

The purpose of the 1974 federal statute ⁷ is expressed as follows:

To impose overall limitations on campaign expenditures and political contributions; to provide that each candidate for Federal office shall designate a principal campaign committee; to provide for a single reporting responsibility with respect to receipts and expenditures by certain political committees; to change the times for the filing of reports regarding campaign expenditures and political contributions; to provide for public financing of Presidential nominating conventions and Presidential primary elections; and for other purposes.

Only Titles 2 and 3 of the 1974 statute are amendatory of the 1971 statute. The 1974 act amends the corresponding section of the 1971 act to provide for express preemption, in the language set out above.

Even if a reader of the bare language might have some question as to the scope of the express preemption, the legislative history shows clearly that Congress did not intend the preemption language of § 453 to annul state little Hatch Acts, and other state laws, such as § 84.830, having similar incidence and purpose. The overwhelming concern was revision of the Federal Election Campaign Act of 1971. The legislative history makes it clear that 2 U.S.C. § 453 was intended only to preempt the limited field of statutes imposing restrictions on candidates for federal office and their campaign committees. The Conference Committee explained that purpose of § 453, as follows:

It is clear that the Federal Law occupies the field with respect to reporting and disclosure of political contributions to and expenditures by Federal candidates and political committees, but does not affect State laws as to the manner of qualifying as a candidate, or the dates and places of elections.

S.Conf.Rep. No. 1237, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 5587, 5618, 5668 (emphasis added).

The Conference Committee also noted that the inclusion of amendments to the federal Hatch Act in the 1974 amendatory act was not an expression of a desire to preempt state laws in that field of concern. The report stated:

It is the intent of the conferees that any State law regulating the political activities of State and local officers and employees is not preempted or superseded by the amendments to title 5, United States Code, made by this legislation.

Id. at 5669 (emphasis added). Similarly, the House Report states that "[t]he regulation of political activities of State and local employees would be left largely to the States." H.Rep. No. 1239 93rd Cong., 2d Sess. 11, reprinted in FEC, The Legislative History of the 1974 Amendments to the Federal Election Campaign Act, at 1092.

An examination of the Senate debate on the 1974 amendatory act further emphasizes that, by including amendments to the federal Hatch Act in the bill, the legislature did not intend to preempt state laws regulating the political activities of state and local employees in federal elections. The following exchange between Senator Stevens and Senator Cannon, the floor manager of the bill, exemplifies this point:

MR. STEVENS: Mr. President, just 1 minute. I should like to clarify something, if I may, with the manager of the bill.

A provision of this bill amends section 1502 of title 5 relating to the...