State ex rel. Fortney v. Joiner, WD
| Decision Date | 02 October 1990 |
| Docket Number | No. WD,WD |
| Citation | 797 S.W.2d 848 |
| Parties | STATE of Missouri, ex rel., Sergeant Jerry FORTNEY, Respondent, v. Chief Larry JOINER, Appellant. 42874. |
| Court | Missouri Court of Appeals |
Michael A. Wee, Torrence & Wee, Kansas City, for appellant.
James L. McMullin, Kansas City, for respondent.
Before TURNAGE, P.J., and MANFORD and BERREY, JJ.
Sergeant Gerald Fortney was suspended for ten days with forfeiture of all pay and allowances from the Kansas City Police force by the Chief of Police. Fortney contested the suspension by filing a petition for a writ of certiorari in the circuit court. The court entered judgment making the writ permanent and set aside the suspension. The Chief appeals and contends the petition for writ was not timely filed, and that the court erred in finding that the suspension was the result of an arbitrary and capricious act on the part of the Chief. Reversed and remanded.
Fortney was in charge of a special squad of detectives investigating a homicide in August, 1986. Sherman Wells was arrested as a suspect and brought to headquarters to be questioned by Fortney's squad. Wells was questioned by a number of detectives, among them Gibson and Glynn. After Wells had made a confession and a murder charge was filed, Gibson reported to the prosecuting attorney that after Wells had signed a waiver of his rights pursuant to Miranda, Wells had requested an attorney. Gibson stated that he reported this to Fortney, who was in charge of the investigation, and that Fortney had ordered Gibson to continue questioning Wells in spite of his request for an attorney. The prosecuting attorney dropped the murder charge against Wells and the Chief of Police ordered an Internal Affairs Investigation into the matter. The object of the investigation was to resolve the factual question of whether or not Fortney ordered Gibson to violate Wells' rights and whether Wells' rights were violated by Gibson through continued interrogation after Wells requested an attorney.
The Internal Affairs Investigator took a number of statements, among which were statements from Fortney, Gibson and Glynn. 1 Fortney stated that he did not recall anything about the Wells interrogation. Gibson, in his statement, stated that when he began the interrogation of Wells, Wells had already signed a Miranda Waiver. Later Wells told Gibson that he would like to have an attorney present and did not want to talk any more without one. Gibson said he thereupon went out of the room and told Fortney that Wells had requested an attorney and because of that Gibson could not talk with him any more. Gibson said Fortney told him to go back in and get a statement from Wells. Gibson said he told Fortney that Wells was not kidding and could not be manipulated into thinking that he did not want an attorney. Gibson said Fortney thereupon told Glynn to go in with Gibson to question Wells. Gibson said that when he and Glynn went into the room Wells said he wanted to call his father and asked if he was going to get an attorney. Gibson said they told him he would have to tell them about the murder first. Wells later confessed to Gibson and Glynn and agreed to give a video statement.
Prior to taking the video statement Gibson said Fortney ordered him to simply show Wells the Miranda Waiver Wells had previously signed and ask if that was the waiver he had signed. Gibson said Fortney did not want Gibson to go into detail on camera about the Miranda Waiver form because Fortney did not want to give Wells a chance to back out of making a statement.
Police department procedures for recording a video statement required that the Miranda warning be read on camera to the subject and required the subject to sign the form on camera. Gibson stated that procedure was not followed with Wells because of Fortney's orders.
In his statement to the investigator, Glynn stated that he and Gibson were present when Wells confessed and that Wells never requested an attorney while Glynn was present. He said that Gibson told him that before Glynn became involved in the interrogation Wells had requested an attorney. 2 He said Gibson told him that Gibson had advised Fortney of the request. Glynn said he did not hear the conversation between Fortney and Gibson.
Because of the factual dispute of whether Fortney had ordered Gibson and Glynn to interrogate Wells in the face of Wells' request for an attorney, Fortney, Gibson, and Glynn were all ordered to submit to a polygraph examination. The conclusion reached by the examiners was that in answers bearing on the disputed facts, Fortney showed deception, but Gibson and Glynn did not.
The immediate supervisor of Fortney recommended to the Chief that Fortney be suspended for ten days with forfeiture of all pay and allowances. The Chief followed this recommendation. 3
The first issue presented on this appeal is the timeliness of the filing of the petition for a writ of certiorari. The petition was filed about four months after Fortney received his suspension and alleged that his suspension was the result of a noncontested administrative decision and sought review and reversal of that decision. The Chief, among other things, contended that the petition was untimely filed and for that reason the court did not have jurisdiction. The Chief renews his contention in this court that the petition was not timely filed. Primary reliance is placed upon State ex rel. Day v. County Court of Platte County, 442 S.W.2d 178 (Mo.App.1969). In Day, this court held that a petition for review of a contested case before an administrative body must be filed within thirty days after the mailing of the notice of the decision pursuant to § 536.110, now RSMo 1986. 4 The court held that the § 536.110 time limit applies because the statutes providing for the agency's action did not contain a time limit for seeking judicial review. The trouble with this contention is that § 536.110 applies to contested cases before administrative agencies. Consequently, Day, is distinguishable from this case in light of the fact that the parties agree that the petition for writ of certiorari was filed pursuant to § 536.150 seeking judicial review of an administrative decision in a noncontested case.
The Police Department of Kansas City is governed by § 84.350 to § 84.860. The suspension was imposed by the Chief under the power conferred upon him by § 84.500, and under that section there is no right of appeal or further review available for a suspension of less than fifteen days. Thus, this case meets the requirement of § 536.150 for a noncontested case.
No statute, nor Rule 100 relating to judicial review of administrative decisions, sets forth any time limitation on the filing of a petition under § 536.150 by which review may be had in a noncontested case. Because there is no time limit established for an action seeking review of a noncontested case, the only requirement is that the petition be filed within a reasonable time. No argument is made that Fortney sought review in this case beyond a reasonable time. In that situation the petition for review by way of writ of certiorari was timely filed.
When this case came on for hearing, the parties appeared and stipulated that the file developed by the Internal Affairs Investigation consisting of all of the statements taken and other documents would be submitted to the court as the evidence in this case. The court made no finding of whether or not Fortney ordered Gibson to interrogate Wells in violation of the law. The court entered judgment finding that the action of the Chief was an abuse of discretion and was not based upon competent and substantial evidence and was arbitrary and capricious. The contentions of the Chief on this appeal can be consolidated into the question of whether the judgment is erroneous in view of the record before the court.
In Phipps v. School Dist. of Kansas City, 645 S.W.2d 91 (Mo.App.1982), this court explained the...
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Martin-Erb v. Mo Com'n On Human Rights
...The only requirement is that the petition under section 536.150 be filed within a reasonable time. Id.; State ex rel. Fortney v. Joiner, 797 S.W.2d 848, 851 (Mo.App. W.D.1990). This Court remands to permit consideration of any motion to amend to name the proper party Ms. Martin-Erb argues t......
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State v. Public Service Com'n
...Bar 3rd ed.2000). This is because, in noncontested cases, "there is no record from the administrative body." State ex rel. Fortney v. Joiner, 797 S.W.2d 848, 852 (Mo.App.1990). The Supreme Court has declared that the lawfulness and reasonableness standard in Section 386.510 is essentially t......
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Kendrick v. Board of Police Com'rs of Kansas City, Mo.
...this court has previously determined that they may, nonetheless, be used in lawful investigations. State ex rel. Fortney v. Joiner, 797 S.W.2d 848, 853 (Mo.App. W.D.1990); See Campbell v. Personnel Bd. of Kansas City, 666 S.W.2d 806, 811 (Mo.App. W.D.1984). Moreover, polygraph examinations ......
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State v. Mo Comm'n on Human Rights, 83704
...The only requirement is that the petition under section 536.150 be filed within a reasonable time. Id.; State ex rel. Fortney v. Joiner, 797 S.W.2d 848, 851 (Mo. App. W.D. 1990). This Court remands to permit consideration of any motion to amend to name the proper party Ms. Martin-Erb argues......