Sowder v. Board of Police Com'rs

• Decision Date: 27 June 1977
• Docket Number: No. KCD,KCD
• Citation: Sowder v. Board of Police Com'rs, 553 S.W.2d 525 (Mo. App. 1977)
• Parties: William M. SOWDER, Appellant, v. BOARD OF POLICE COMMISSIONERS and John D. McNamara, Respondents. 28408.
• Court: Missouri Court of Appeals

Page 525

553 S.W.2d 525

William M. SOWDER, Appellant, v. BOARD OF POLICE COMMISSIONERS and John D. McNamara, Respondents.

No. KCD 28408.

Missouri Court of Appeals, Kansas City District.

June 27, 1977.

J. Martin Kerr, Tittle & Kerr, Independence, for appellant.

Manfred Maier, Kansas City, Kansas City Police Dept., for respondents.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

Appellant police officer Sowder was suspended without pay for sixty days by the Board of Police Commissioners for Kansas City, Missouri, for use of unnecessary force against citizen Rose Mary Neal and for his false oath that Wilbur Neal had refused the breathalyzer after request and warning of consequences, when in fact none was made or given.

The charges against Sowder resulted from conduct during a routine surveillance when Sowder, in the company of a fellow officer, undertook to question the occupants of an automobile, including Wilbur Neal. An argument developed during the interrogation and Sowder struck Neal to the ground. Mrs. Neal came to the defense of her husband and was herself struck by Sowder. Thereafter, appellant Sowder prepared and executed documents that Neal was in control of an automobile while intoxicated and refused to submit to the breathalyzer.

Three separate actions followed from these events: The Chief of Police imposed a sixty day suspension discipline on Sowder under § 84.500; the Board brought charges and specifications under § 84.600; and the Neals brought citizens complaints to the Board under § 84.430.

In due course Sowder appealed the Police Chief suspension order to the Board under § 84.610 and so, as convened, the Board had for determination this review procedure, its own citation against Sowder and the complaint brought by the Neals. At the conclusion of the evidence, the Board found that Sowder had used unnecessary force by striking Rose Mary Neal in the face with his fist and that he had sworn a false affidavit that Wilbur Neal had refused a breathalyzer after warning and request. The Board concluded that his conduct violated specified Rules of Conduct as well as the Code of Ethics of the Kansas City Police Department. The decision of the Board to suspend Sowder for sixty days without pay in effect coincided with the discipline imposed upon the officer by the Chief of Police in the first instance.

The appellant brought his petition for review to the circuit court under § 536.100. That court rejected the contentions made that Sowder had been denied due process before the Chief of Police and the Board and that the decision of the Board was without support of substantial evidence and affirmed the decision of the Board. The appellant asserts these same grounds on this appeal.

Our review of a decision by a city board of police commissioners is limited by § 536.140 to a determination of whether that action is unsupported by substantial evidence, violates provision of constitution or law, is otherwise arbitrary or an abuse of discretion. Johnson v. Priest, 398 S.W.2d 33, 35(1, 2) (Mo.App.1965).

This principle of administrative review quickly dispenses the contention that the findings that Sowder used unreasonable force upon Mrs. Neal and swore falsely that Mr. Neal had refused the breathalyzer were without support in substantial evidence or otherwise an unreasonable determination.

As to the first of these findings: Mrs. Neal testified she saw two males (Officers Sowder and Mathis dressed in mufti) in conversation with her husband as he sat in a parked car, and that when she asked what was happening, Sowder ordered her to shut up and get away. She began to argue with Sowder and he first grappled her husband and threw him against the car, then gripped her around the neck and beat upon her face, so that she cried and screamed. Mrs. Neal held fast to Sowder to keep from falling, and the officer struck her at her back with his pistol. This description of the events was fully corroborated by six witnesses at the scene. The testimony of Officer Sowder confirmed by his partner Mathis, was that he acted in self-defense against Mrs. Neal and struck her only once with less than a full impact of his fist. On this countervailing evidence the Board could have reasonably made the finding actually concluded and a court of review is bound by that determination of fact. Schrewe v. Sanders, 498 S.W.2d 775, 780(7, 8) (Mo.1973).

As to the second of these findings: There was evidence that Mr. Neal was taken to a hospital for treatment of the injuries he suffered from the encounter, while Officer Sowder proceeded to Police Headquarters to complete his reports. From there he telephoned Officer Ludwig on duty at the hospital to learn if Ludwig had offered Neal the breathalyzer test. Ludwig replied that Neal had refused the test, and on the basis of that information, Sowder completed and signed the Breathalyzer Refusal Form. (That document recites in conformance with § 564.444 that the officer whose signature subscribes the report swears on his oath that he asked the person arrested to take a breathalyzer test and warned of the consequences of refusal and that he refused.)

The appellant Sowder does not dispute that he completed the form without prior personal inquiry of Neal, contrary to the attestation of his signature, but argues rather that the form was not an affidavit, and so the finding of the Board was invalid. It may be conceded, for argument, that the sworn report of the officer for submission to the Director of Revenue which preconditions revocation does not require a jurat, and so does not rise to an essential affidavit. 3 Am.Jur.2d Affidavits, §§ 12 and 16. Sowder does not dispute that the gist of the charge laid against him was that he swore to a false statement. That the Board cast its finding in terms of the colloquial affidavit rather than the literal statute does not impair the force of the undisputed proof that Sowder swore falsely and so breached his duty under the law.

The appellant Sowder next iterates the contention that the findings of fact were not inferable from the evidence, but this time claims the error as an abuse of discretion which requires the decision of the Board to be set aside under § 536.140.2(7). What we have already said on that issue, now presented in a different guise, suffices as answer. Sowder contends yet another abuse of discretion: the conclusion of law entered by the Board that, notwithstanding departmental order for an advisory board, the law (§ 84.500) places on the Chief of Police sole responsibility for discipline, so his failure to consult before the decision to punish Sowder was not unlawful. The conclusions of law reached by an administrative agency do not rest on discretion but on the application of valid juridical precepts to the facts of the proceeding. There is no discretion which binds a court to conclusions of the tribunal which misconceive the law. Gilmore v. Thompson, 413 S.W.2d 20, 22(1) (Mo.App.1967). The conclusion reached by the Board that the Chief of Police is solely responsible for the discipline of police officers, however, comports with the clear meaning of § 84.500.

We defer response to one aspect of this general contention that the Board abused a discretion by the order which consolidated the three procedures against Sowder since that point recurs in another context.

The other broad complaint asserts that Sowder was denied due process of law in the disciplinary action taken against him. He cites three particulars. He objects to procedures followed by the Chief of Police on the citizens complaints, the consolidation of his appeal with the Neal complaints, and the participation of Manfred Maier as an attorney for the Board.

The arguments on these points assume that the procedureswhich culminated in the discipline enjoyed the protection of constitutional due process. The scheme of the statute does not support that conclusion nor do general principles of law. The commission of a...