# Petition — Poelker v. Doe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2116%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 432 U.S. 519 ## Text Den ef C= ps IN THE SUPREME COURT OF THE UNITED STATES. , OCTOBER TERM, 1974 rr OF TE om JOHN H. POELKER, Mayor of the City of St. Louis, Missouri, and R. DEAN WOCHNER, M.D., Director of Health and Hospitals, and Acting Commissioner of Hospitals of the City of St. Louis, Missouri, Petitioners, VS. JANE DOE, and a Class, Respondents. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Eighth Circuit - LARK L. KOEHR City selor of the City of St. Louis, te of Missouri GENE P. FREEMAN Deputy City Counselor of the City of St. Louis, State of Missouri Room 314, City Hall 1200 Market Street St. Louis, Missouri 63103 314-453-3366 Attorneys for Petitioners St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477 SB: \\ Cre tar nar aga ALF er AON eee oa LS ate “-e-- — The respondent’s evidence demonstrated that the City’s hos- pitals have an organic medical staff. Private physicians are not allowed to admit or treat patients in them. Each hospital pa- tient is a patient of the City treated by City hospital physicians. The City’s hospitals are also medical instructional institutions having teaching relations with the two medical schools in St. Louis, namely, St. Louis University, a Jesuit, Catholic institu- tion, and Washington University (formerly sectarian but is now nondenominational). Medical schoo! teaching professors are furnished as staff instructors in many of the services of the City’s hospitals and in some services medical students receive some of their clinical instruction. (T.31-33.) The Ob-Gyn service at City Hospital No. | is staffed by physicians and attended by medical students affiliated with St. Louis University Medical School. (T. 33.) Respondent attempted to prove the physicians at City Hospital No. 1, practicing in Gyn-Ob Division No. 2, were prohibited through their affiliation with St. Louis Uni- versity Medical School from performing non-therapeutic abor- tions at the Hospital before medical students. However, the Court overruled such attempts and admitted the personal pro- fessional, ethical, moral and religious views of such physicians as material to their theoretical interpretation and execution of the contested claimed policy. (T. 57-58.) The proof relating to respondent's factual relations was pro- vided by her medical record kept by the Hospital (Resp. Ex. No. 2), the testimony of the Hospital medical personnel who treated her there, and her account of the same occurrences. The medical record and the medical personnel agreed tliat she had a long history of treatment at the Hospital starting in 1963 when she was 17 years old. Immediately relevant to this suit she made a visit on August 7, 1973, at age 26, to the Gyn Clinic compla‘aing of vaginal infection about which she had visited the Clinic about a month before. She also stated she thought she was pregnant and, if @o, wanted to know the fetal age for a possible abortion with “Planned Parenthood.” (T. 86; Exhibit No. 2.) Examination by a third-year medical student (under general supervision) indicated suspected pregnancy, va- ginal infection, some small polyps in her cervical canal, and retroverted uterus. Her general condition of health was good. Routine laboratory tests were ordered including a pregnancy test; and she was given a future appointment to Gyn for August 13, 1973, to learn the outcome of the tests. She was also given medicine for the infection. No medical indications for abor- tion were observed (T. 85). She did not indicate she wanted an abortion at the City Hospital (T. 88). On August 13 1973, respondent returned to the Gyn Clinic where she again was treated by another third-year St. Louis University medical student. She was immediately told the test specimen of August 7, indicated she was pregnant. Whereupon she became very distraught saying because of the possibility of her husband going to prison she wanted a hysterectomy and an abortion (T. 96). The student then consulted with a physician superior who directed that she be given an appointment at the Obstetrics Clinic (T. 94). Because of her upset condition he gave her an appointment to the Ob Clinic for the next day, Au- gust 14, 1975. He found no medical indications for abortion or hysterectomy (T. 91, 94-95), and that, at the time, he was unaware of any City hospital policy against abortion (T. 97). He advised respondent that, under health circumstances, he knew of no physician at the hospital who would perform an abortion for the reasons she related (T. 96-97). On August 14, 1973, she returned to the OB Clinic of the Hospital and was there received by a staff physician who initiated a usual past history investigation when the respondent inter- rupted to ask if such was necessary since she was there only for the purpose of securing a statement of the length of gestation for possible cessation at another facility (T. 101). He told her that because of his personal ethical, professional, moral and Nee AD nae eter eet = Oa tes 16 5D 2) aint se wes: Bernt Arete Bie) e1Ss AT ADRS Me CIPI ee Di A red : — religious beliefs, where she had no medical indications for abor- tion (T. 102 and 104), he would not give her such a statement to be used for abortion, but would refer her to another physician (whose beliefs he did not know) who might give her the state- ment she desired (T. 102). He, too, was unaware at that time of any City hospital policy against abortions. (T. 107-108). Immediately, respondent was referred to Dr. Ziad Abu Dalu, a graduate of the medical school of the University of Cairo, Egypt, who on the occasion was affiliated with St. Louis Uni- versity since 1972, and a resident physician at the City Hospital (T. 110). During Doctor Dalu’s initial interview of her she told him of her personal reasons for wanting to abort her child, amongst which he remembered was the possibility of her hus- band going to jail. She told him she had been to “Planned Parenthood” and had been asked to pay $175 for an abortion which she couldn’t afford and, therefore, wanted the abortion from City Hospital (T. 112-113). He told her “we couldn’t do one at City Hospital and I didn’t explain to her my personal reason or otherwise.” (T. 113). He testified that the reason he told her this was because in his medical judgment an abortion was not medically justified under her circumstances (T. 113, 118-119). He was aware of the University policy regarding abortions but not of a policy of the City (T. 118-119, 123). He gave her the certificate of fetal age she had requested (T. 116- 117); such certificate was later tendered to the abortion clinic for the August 22, 1973, abortion, and procured from its rec- ords (T. 79 and 82; Exhibit B). Respondent appeared again at the Hospital OB Clinic the next day (August 15, 1973) and was immediately referred to Doctor Dalu on her claim of bleeding from the vagina. He found her claim to be false (T. 114). Respondent’s testimonial version of the same occurrences was markedly different in several material respects. She claimed, contrary to the medical personnel, that she initially went to the Hospital to secure an abortion there. Whereas, the medical rec- = ores Oe eet -cuse ca eee oe eee ee - — es — demand of the woman to be aborted (Doe v. Poelker, supra, 515 F.2d l.c. 546). Contrary to the teachings of Roe v. Wade and Doe v. Bolton, supra, the woman is vested with a right to “shop” the medical staff so as to find a compliant physician who will abort her for any “health” reason she asserts. And the City is required to insure that they are available to be found. The Court has disqualified the present physicians from prac- ticing regarding the health of City hospital pregnant patients strictly because their medical views are influenced by their ethical professional views, or their moral opinions, or their religious beliefs. This is a new, novel and startling intrusion into the practice of medicine and, if practiced by the State out- side the context of judicial coercion, would be most certainly within the prohibitions denounced by this Court in Roe v. Wade, supra, 410 U.S. Lc. 163, and Doe v. Bolton, supra, 410 U.S. l.c. 216. The Court of Appeals has effectively intruded where all others are barred. There hardly, at *his time, need be a labored exposition of the fundamental United States First and Fifth Amendments’ constitutional violation implications for such physicians and the City is dealing with them. The Court of Appeals has rejected the truth that it is just as valid a medical position to believe that non-therapeutic abortion is medically un- sound. The institutionalization of “abortion on demand” is certainly contrary to the reasonable import of this Court in Roe v. Wade and Doe v. Bolton, and expressly so declared by the Chief Jus- tice in his concurring opinion. (Roe v. Wade, supra, |. c. 207.) II. Appellate Abuse of Discretion 1. Overturning District Court’s Findings. Petitioners seek Supreme Court review (under its Rule 19 (b) superintending powers) of this case on the basis that the Court of Appeals, in its adjudicatory powers departed so far from = common standards of fairness and impartiality of judicial prac- tice that, in order to preserve important public rights in this litigation and to preserve future judicial regularity through precedent, intervention by this Court is required. Nothing need be said to add to the Court's history of in- sistence upon fairness and impartiality in the judicial process according to the requirements delineated for due process of law as declared through the Fifth Amendment (and Fourteenth) of the Constitution of the United States, and formally recognized by Rule 52(a), Federal Rules of Civil Procedure. We urge that the appellate record of this case most forcibly brings these prin- ciples to the fore for application once again. An examination in some detail of the Court of Appeals’ first opinion (April 14, 1975) gives a clear exposition of the manner that Court totally vitiated an adversary trial, rendering nugatory the District Court's findings and assessment of the believability and accuracy of the witnesses and documents; and thereafter, finally reversing, granting injunctive relief it later had to withdraw; and severely convicting and punishing the petitioner Mayor on the untried issue of “bad-faith” after being obliged to abandon an earlier attorney fees award on a “private attorney general” basis. An impossible impediment the Court of Appeals logically first had to overcome before it could disagree with the findings of the District Court and then finally reverse, involved the inclu- sion of issues raised by the Complaint. The District Court's findings and judgment, reviewed according to the construction placed on the Complaint by the District Court and so tried by it, were unassailable. The evidence amply supports the findings and the trial court had seen and heard the sources at the hear- ings as to better determine truth upon conflicts. To overcome this, the Complaint had to be reconstructed to permit appellate trial de novo. eh ET \ — = The District Court, shortly before trial, upon respondent's attorneys’ inquiry," ruled that as the Complaint stood, attempted proof by respondent into the professional ethics, morality, or religious beliefs of the physicians at the Gyn-Ob Department of City Hospital No. 1, or physicians respondent was treated by, would only be material to the Complaint for the limited question of whether the so-called “Mayor's” City abortion policy in fact biased or interfered with the personal medical opinions of the City physicians and medical personnel who had treated the re- spondent. Evidence going to proof of staffing with physicians of a certain medical, ethical, moral or religious belief was ruled beyond the scope of the Complaint.’ The uncontroverted record showed that the attacked policy continued by the Mayor and which petitioner Wochner did noth- ing substantial to enforce, was not the cause for the City phy- sicians refusing to accede to the respondent's request to be aborted. As a consequence, “clearly erroneous” findings, under ‘he trial court's construction of the Complaint were nonexistent. At appeal, the respondent had failed to point out any erron» No. 73 C 565 (A). MEMORANDUM AND ORDER (Filed March 22, 1974) This matter is before the Court on the motion of the de- fendants, John H. Poelker, Mayor of the City of St. Louis, Missouri, and R. Dean Wochner, M.D., Director of the De- partment of Health and Hospitals and Acting Hospital Com- missioner of the City of St. Louis, Missouri, to dismiss the plaintiff's complaint for lack of standing. Defendants’ motion is based on the defendants’ allegation that the plaintiff has undergone an abortion operation subsequent to the filing of her complaint and is no longer pregnant and that, therefore, plaintiff has no personal standing to continue this action on behalf of herself or as a representative of a class. = Plaintiff, on her own behalf and on behalf of the entire class of women similarly situated,’ filed this action on August 17, 1973, pursuant to 28 USC 1343, 2201 and 2202 and 42 USC 1983, asking for a declaratory judgment and permanent injunction against the existence, application, implementation and enforcement of express and implied policies, rules, regu- lations, procedures and practices barring, thwarting, limiting and infringing upon the utilization of the personnel, facilities and services of the general public hospitals of the City of St. Louis, Missouri, for the performance of abortions. Plaintiff contends that such express and implied policies, rules, regu- lations, procedures and practices are in violation of her con- stitutional rights and the constitutional rights of the class of women similarly situated, as protected and guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. In her complaint plaintiff alleges that she is a resident and taxpayer of the City of St. Louis, and that during the month of August, 1973, on two separate occasions she requested an abortion at Starkloff Memorial Hospital, a public hospital run by the City of St. Louis. Plaintiff further alleges that physi- cians of the obstetrical staff at Starkloff Memorial Hospitai refused to perform an abortion operation on her and that the refusals were based upon the blanket policy of the public hos- pitals of the City of St. Louis against performing abortions except when necessary to save the life of the mother. On both occasions when the public hospital staff physicians re- fused to abort the plaintiff, they advised her to seek an abor- tion elsewhere and then return to the public hospital for a hysterectomy operation, because she suffers from cervical, ! The class was defined in plaintiff's complaint as consisting of pregnant women who are sntdonts of the City of St. Louis, Mis- souri, and who desire to utilize the personnel, facilities and services of public hospitals within the City of St. Louis, Missouri, for the medical termination of their pregnancy. — * po fibroid tumors and polyps, a retroverted uterus, and tricho- mycosis. In defendants’ motion to dismiss they state that they have reason to believe that plaintiff has had an abortion and is no longer pregnant, based upon information reported in the press, radio and television. Defendants argue that when the plaintiff aborted her pregnancy she lost her standing to bring this action on her own behalf or on the behalf of the class the plaintiff purports to represent. What defendants are really saying is that upon termination of her pregnancy before trial in the District Court, plaintiff's claim became moot and should be dismissed for lack of standing. The defendants are correct in their belief that the plaintiff is no longer pregnant. This Court was informed by letter dated February 22, 1974, from plaintiff's counsel (the first paragraph of which letter is attached hereto and marked Exhibit 1), that the plaintiff's pregnancy was terminated by an abortion operation on August 22, 1973, which was five days after the plaintiff filed this action and before the summons in this case was served on the defendant, R. Dean Wochner, M.D. (Served August 28, 1973). This issue presented by defendants’ motion to dismiss which must be decided is whether the plaintiff, who was pregnant and had standing on the date she filed her complaint and who termi- nated her pregnancy by undergoing an abortion operation five days thereafter, still has standing to proceed in this cause in her own behalf or on the behalf of the class she purports to repre- sent. This Court recognizes that the pregnancy which gave rise to the present controversy herein has been resolved by the plain- tiff's termination of her pregnancy, but that the underlying prob- lem of the blanket policy against abortions in the public hos- pitals of the City of St. Louis still remains. This allegedly un- constitutional policy continues to deny abortions to members of the class plaintiff purports to represent. — This Court will first resolve the issue of whether the plaintiff can ‘ill represent the class of pregnant women she purports to represent in her class action allegation. In a very straightfor- ward statement, the Supreme Court in Bailey v. Patterson, 369 U. S. 31, 32-33, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962), while referring to a group of plaintiffs, said, “They cannot represent a class of whom they are not a part. McCabe v. Atchison, T. & S.F.R. Co., 235 U. S. 151, 162-163.” There is no dispute as to the fact that the plaintiff's pregnancy was terminated by an abortion operation on August 22, 1973, and that she is no longer pregnant. Therefore, she is no longer a member of the class she purports to represent (see Footnote 1 ). This Court finds that this action should not be maintained as a class action. The prayer of the complaint is for a declaratory judgment holding that the policies, rules and regulations of the St. Louis City Hospitals which restrict the performance of abor- tions are unconstitutional under the First, Fourth, Fifth and Ninth and Fourteenth Amendments. The prayer also seeks a per- manent injunction restraining the defendants from enforcing said policies, rules and regulations. No damages are requested on behalf of the plaintiff or on behalf of the class. The determina- tion of the constitutional question can be made by the Court and the policies, rules and regulations determined to be constitutional or unconstitutional, regardless of whether this action is treated as an individual action or as a class action. No useful purpose would be served by permitting this case to proceed as a class action. See /Jhrke v. Northern State Power Company, 459 F. 2d 566, 572 (8th Cir. 1972). This Court must resolve the question of whether the plaintiff who had standing on the date she filed her complaint and who terminated her pregnancy by an abortion operation six days thereafter, still has standing to proceed in this cause in her own behalf. —_. The plaintiff contends that the Supreme Court in Roe v. Wade, 410 U. S. 113, 124-125, 93 S. Ct. 705, 35 L. Ed. 147 (1973) unequivocably answered the above question of moot- ness in the negative and the question of standing in the affirma- tive. Plaintiff quotes from Roe v. Wade, supra, l.c. 124 and 125, as follows: “A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For pur- poses of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas. “+ - * * * * _* “The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970, or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe’s case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy. “The usual rule in federal cases is that an actual con- troversy must exist at stages of appellate or certiorari re- view, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972). “But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will sur- vive much beyond the trial stage, and appellate review will a . be effect'vely denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justifica- tion for a conclusion of nonmootness. It truly could be ‘ca- pable of repetition, yet evading review.’ Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953). “We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she pre- sented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.” The plaintiff interprets the above quote from Roe v. Wade, supra, to mean that it is not necessary for the plaintiff to be pregnant at the time of trial to have standing and that termina- tion of the plaintiff's pregnancy before trial does not render her claim moot. This Court does not agree with the plaintiff's in- terpretation. This Court calls attention to the only paragraph plaintiff omitted from the Supreme Court's discussion of stand- ing and mootness in Roe v. Wade, supra, |.c. 124 and 125. This paragraph is of vital importance to the quote, and is as follows (lc. 124): “Viewing Roe’s case as of the time of its filing and there- after until as late as May” (the court is talking about May 21, 1970, the day before trial when plaintiff Roe filed an affidavit with the District Court) “there can be little dis- pute that it then presented a case or controversy and that, wholly apart from class aspects, she, as a pregnant single woman thwarted by Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markie, 452 F. 2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F. 2d 833, 838-839 (CA6 1971); Poe v. Menghini, — 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239 U. S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The ‘logical nexus between the status asserted and the claim sought to be adjudicated,’ Flast v. Cohen, 392 U. S. at 102, and the necessary degree of conteniousness, Golden v. Zwickler, 394 U. S. 103 (1969), are both present.” (Emphasis added. ) Abele v. Markle, supra, cited in the omitted paragraph, is a case involving the constitutionality of an abortion statute, where the Court held that in order to demonstrate Federal standing to assert a personal claim the plaintiff had to allege and prove that she was pregnant. In the words of the Court in Abele v. Markle, supra, l.c. 1125: “Accordingly we hold that nonpregnant female plain- tiffs in this category do not show a sufficient nexus or pre- sent a sufficiently concrete issue in an adversary setting to give them standing, * * *.” In Crossen v. Breckenridge, supra, |.c. 829, the Court like- wise reiterated the crucial element of “personal stake” in the outcome of the case and controversy, and held that where the woman was not pregnant, she had no standing. The same rationale is evident in Poe v. Menghini, see 339 F. Supp., l.c. 990. In Roe v. Wade, supra, the Court at pp. 127-129, in dis- cussing the standing of the Does, who were among the plain- tiffs, held that where the wife was not pregnant at the time the cause was filed and based their claim on the fact Mrs. Doe might become pregnant, the District Court had appropriately dis- missed their claim for lack of standing. In Golden v. Zwickler, 394 U. S. 103, 108, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969) (relied on by the Supreme Court in Roe v. Wade, supra), the Supreme Court said: —_—" “The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed ‘[wJhen this action was initiated.’ The proper inquiry was whether a ‘controversy’ requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on remand. We now undertake that inquiry. “(T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, “concrete legal issues, presented in actual cases, not abstractions,” are requisite. This is as true of declaratory judgments as any other field.’ United Public Workers of America v. Mitchell, 330 U. S. 75, 89 (1947). ‘The difference between an abstract ques- tion and a “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a con- troversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ Mary- land Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).” (Emphasis added. ) The Court went on in Golden v. Zwickler, supra, l.c. 110, to say that constitutional questions must be presented to the courts in the context of a specific live grievance, and said: “No federal court, whether this Court or a district court, has ‘jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U. §S. 33, 39 — trict Court for the Wochner, M.D., Director of the De- Eastern District of partment of Health and Hospitals Missouri. and Acting Hospital Commissioner of the City of St. Louis, Missouri, Appellees. | Submitted: May 17, 1974 Filed: June 4, 1974 Before Bright and Ross, Circuit Judges, and Talbot Smith, Senior District Judge.* Ross, Circuit Judge. This is an action for a declaratory judgment and a permanent injunction against implementation of the policies, rules, regu- lations and procedures barring the performance of abortions in the two public hospitals in the City of St. Louis, Missouri. From an order dismissing the complaint for lack of standing and mootness, Doe appeals. For the reasons hereinafter ex- pressed, we reverse. * Talbot Smith, Senior District Judge, Eastern District of Mich- igan, sitting by designation. — A-12 — Jane Doe alleged in her complaint, and verified by way of affidavit, that she was pregnant, was the mother of two chil- dren, was in severe financial straits, and was suffering from cervical fibroid tumors and polyps, a retroverted uterus, and trichomycosis. Twice she consulted staff members at Starkloff Memorial Hospital, owned and operated by the City of St. Louis, and was advised that she would require a hysterectomy. They told her to procure an abortion elsewhere and then re- turn to the hospital for the hysterectomy. The reasons proffered by the hospital for the two-operation recommendation was the hospital's stated policy’ against performing abortions. Doe thereupon commenced this action against the Mayor of St. Louis and the Director of the Department of Health and Hos- pitals on her own behalf and on behalf of the entire class of pregnant women residents of the City of St. Louis, Missouri, desiring to utilize the personnel, facilities and services of the general public hospitals within the City of St. Louis for the termination of pregnancies. After the complaint had been filed and service perfected upon one of the defendants, but before service on the other de- fendant, Doe procured an abortion from an alternative source.” ' That policy is expressed in the defendants’ joint answer: 10. Abortion, for reasons other than to save the mother from grave physiological injury or death, is against and contrary to the laws and public policy of the State and City. 12. [A]bortion, other than to protect the mother from grave physiological injury or death, is a medical procedure which lawfully can and has been reasonably excluded from such services given by the City’s hospitals. 2 This fact was verified to the court by Doe’s counsel. Through- out the litigation her counsel has sought to protect Doe’s true identity in order to avoid harassment. However, counsel has assured the court that Doe remained ready and able for deposition or other dis- covery procedures. Counsel’s assurances and the fact that Doe her- self, under her pseudonym signature, has filed an affidavit affirming the veracity of the relevant facts, permits us to accept as true, her existence and her pregnant state at the commencement of this action. See Roe v. Wade, 410 U.S. 113, 124 (1973); Doe v. Bolton, 410 U.S. 179, 187 (1973). — A-13 — Defendants thereafter moved the court to dismiss Doe’s com- plaint for lack of standing.* In granting defendants’ motion, the court held that, by virtue of the fact that Doe had obtained an abortion, Doe was no longer a member of the class she pur- ported to represent. The court then ordered that Doe could not represent the class of pregnant female residents of St. Louis. Next, the court determined that although she may have had standing to proceed on her own behalf on the date she filed her complaint, her individual case had become moot after she procured an abortion. Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), compel a different result on both standing and mootness. The question of standing in the federal court is to be con- sidered in the framework of Article III which restricts the judi- cial power to “cases” and “controversies.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151 (1970). In terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. Flast v. Cohen, 392 U.S. 83, 101 (1968). The prerequisites of standing are a “logical nexus between the Status asserted and the claim sought to be adjudicated.” Flast v. Cohen, supra, 392 U.S. at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 108 (1969). These requirements are met on these facts. Plaintiff's injury and that of her class is her inability to obtain an abortion prior to fetal viability in St. Lous public hospitals free from regula- tions other than those that advance interests in maternal health. The interest sought to be protected is the constitutionally guar- anteed right to an abortion prior to viability. The defendants * This motion was brought six months after the filing of the com- plaint and presumably upon defendants’ first notice that Doe had obtained an abortion. => fri No. 73C 565 (A) Wochner, M. D., Director of the Department of Health and Hospitals and acting Hospital Commissioner of the City of St. Louis, Missouri, Defendants. , MEMORANDUM AND ORDER (Filed January 13, 1975) This is an action by plaintiff seeking to have declared as un- constitutional those rules and regulations of the public hospitals of the City of St. Louis, Missouri, which prohibit utilization of city hospital facilities and personnel for the performance of abortions except for medical reasons. Plaintiff, suing under the pseudonym of Jane Doe, is a mar- ried woman who was pregnant at the time of the filing of the complaint. Defendants are John H. Poelker, Mayor of the City of St. Louis, Missouri, and R. Dean Wochner, Director of Health and Hospitals for the City of St. Louis. Plaintiff brings this cause of action on her own behalf and on behalf of the entire class of women who reside in St. Louis — A-20 — and desire to utilize the services of the St. Louis public hospitals in order to obtain abortions. Jurisdiction of this Court is in- voked pursuant to 28 USC 1343, 2201 and 2202, and 42 USC 1983. Plaintiff contends that on two separate occasions dur- ing August of 1973 she sought an abortion at Starkloff Mem- orial Hospital, a public hospital run by the City of St. Louis, but was refused based upon the hospital’s policy against performing non-therapeutic abortions. Such policy is alleged to be vio- lative of various constitutional rights, including the right to privacy within the patient-physician relationship; the right to obtain medical services; the right to determine whether to bear children and maintain marital privacy; the right to receive ade- quate medical advice pertaining to pregnancy; and the right to equal protection and due process of law. Plaintiff seeks a judgment declaring invalid all policies and regulations of the St. Louis public hospitals which restrict the use of their per- sonnel, services and facilities for the performance of non-thera- peutic abortions, and requests that defendants be permanently enjoined from enforcing such policies. St. Louis operates two general public hospitals, Max C. Starkloff Hospital and Homer G. Phillips Hospital, designated City Hospital Numbers 1 and 2, respectively. The policy re- garding performance of abortions in the city hospitals in em- bodied in the hospital by-laws, which provide that abortions shall be performed only for “medical reasons” (Defendants’ Answer to Plaintiff's Interrogatory No. 1). This policy was in effect at both St. Louis public hospitals at all times relevant to this lawsuit, and remains in effect today. At trial plaintiff testified that she has two children and has miscarried five times since being married in 1965. In 1973 her husband was arrested for a felony and faced with possible im- prisonment. In July, 1973, plaintiff missed her menstrual pe- riod and on August 7th she went to the gynecology clinic at St. Louis City Hospital Number 1 to determine if she was — A-21 — pregnant. At the clinic she was examined by a third-year medi- cal student assigned to the hospital. Plaintiff testified that she inquired about abortion services at that time, although the stu- dent who examined her had no recollection of such a conversa- tion. That examination disclosed no medical justification for an abortion. On August 13th, plaintiff returned to the gynecology clinic for the results of her laboratory test. Upon being told she was pregnant she requested that the hospital perform an abortion. The medical student who examined her on this occasion testi- fied that he found nothing to indicate that an abortion should be performed. He stated at trial that he was not aware of the city’s policy against abortions, but told plaintiff that he did not know of anyone at the hospital to refer her to that was not op- posed to abortion for moral reasons. However, he made an appointment for her to visit the obstetrics clinic the next day. On August 14, 1973, plaintiff was interviewed by Dr. Wil- liam J. Ott at the Starkloff Hospital (City Hospital Number 1) obstetrics clinic, who told her that her medical condition did not indicate that an abortion was necessary, and that his per- sonal beliefs precluded him from performing abortions. Plain- tiff was examined the same day and again on August 15th by Dr. Ziad Abu Dalu, who confirmed that there were no medical reasons to justify termination of her pregnancy and that the hospital could not comply with her request for an abortion. Although Dr. Dalu did not discuss his personal beliefs with plain- tiff at that time, the record discloses that as a member of the Moslem faith Dr. Dald would refuse to participate in an abor- tion. The instant suit was filed August 17, 1973. Subsequently, on August 22nd, plaintiff procured an abortion at a private St. Louis abortion clinic. — A-22 — Plaintiff now contends that the above policy of the St. Louis City public hospitals contravenes certain recent court decisions which deal with the constitutionality of abortion regulation. De- fendants maintain that such a policy is in violation of neither express nor judicially established constitutional principles. In addition, defendants state that continued enforcement of this policy has since 1973 been supported by Missouri statute, to wit, RSMo 197.032, which was passed in that year and which provides in part: “1. No physician or surgeon, registered nurse, practical nurse, midwife or hospital, public or private, shall be re- quired to treat or admit for treatment any woman for the purpose of abortion if such treatment or admission for treatment is contrary to the established policy of, or the moral, ethical or religious beliefs of, such physician, sur- geon, registered nurse, midwife, practical nurse or hos- pital. No cause of action shall accrue against any such physician, surgeon, registered nurse, midwife, practical nurse or hospital on account of such refusal to treat or admit for treatment any woman for abortion purposes.” Plaintiff does not seek to challenge RSMo 197.032 in this proceeding. Plaintiff has cited to this Court the recent companion Su- preme Court case of Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), which established the principle that a woman has a qualified right to obtain an abor- tion, which may override the state’s interest in restricting her decision during early stages of pregnancy. The Court’s at- tention is also directed to the subsequent Eighth Circuit Deci- sion of Nyberg v. City of Virginia, 495 F. 2d 1342 (1974). In that case the Court was presented with a request from two duly licensed physicians that they be permitted to use the facili- ties of the public municipal hospital at Virginia, Minnesota, in — A-23 — order to perform abortions on their patients who desired such services. Although plaintiffs were members of the hospital staff, they were precluded from performing abortions there by a hospital resolution similar to that in effect at the St. Louis City public hospitals. In Nyberg the Eighth Circuit Court of Appeals first stated that the abortion procedure was no more complicated than other surgical procedures which the plaintiff-physicians were per- mitted to perform at the hospital. In ruling in favor of the doctors, the Court went on to say at page 1346: “It would be a nonsequitur to say that the abortion de- cision and its effectuation is an election to be made by the physician and his patient without interference by the state and then allow the state, through its public hospitals, to effectively bar the physician from using state facilities to perform the operation.” Plaintiff now claims that under the authority of these decisions, a public hospital must be required to provide facilities and per- sonnel to any woman requesting that such hospital perform an abortion on her. This Court does not believe that the above cases were intended to establish such a broad proposition as that now urged by plaintiff. In Doe v. Bolton, supra, the Supreme Court invalidated cer- tain portions of Chapter 26-12 of the Georgia Criminal Code on grounds that it was over-restrictive of the circumstances under which a physician could perform an abortion. However, the Court explained at page 189 that: “Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand.” (Emphasis added. ) Furthermore, in Doe the Court let stand section 26-1202(e) of the Georgia statute which provided as follows: —_s “Nothing in this section shall require a hospital to ad- mit any patient under the provisions hereof for the pur- pose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b)(5). A physician, or any other per- son who is a member of or associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such per- son to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person.” With regard to this provision, which is very similar to RSMo 197.032, the Supreme Court stated at pages 197-198 of its opinion: “Under § 26-1202(e), the hospital is free not to admit a patient for an abortion. * * * Further, a physician or any other employee has the right to refrain, for moral or re- ligious reasons, from participating in the abortion pro- cedure. * * * § 26-1202(e) affords adequate protection to the hospital * * *.” (Emphasis added. ) It is, therefore, axiomatic that no physician or other hospital employee may be compelled to perform an abortion in viola- tion of his personal beliefs. Nyberg merely held that where a physician on the staff of a public hospital desired to perform a non-therapeutic abortion, the state could not place an absolute bar on that decision. The Court concluded at page 1347 of that opinion: “[W]hile we propose to fashion no specific procedures which must be followed nor to require any individual staff — A-25 — members to participate in abortion procedures, we do so hold that the hospital facilities must be made available for abortion services, as they are for other medical procedures, to those physicians and their patients who have a right to and request such facilities.” (Emphasis added. ) A careful reading of the Nyberg decision discloses that it falls far short of holding that a hospital, albeit open to the pub- lic, must be forced to furnish physicians for women desiring to obtain abortions. The Court was careful to point out that: “Contrary to the view taken by appellant, Roe and Doe do not suggest and no hospital need provide facilities for an abortion merely upon a mother’s demand.” (Emphasis added.) 495 F. 2d at page 1346, footnote 5. In the instant case this Court is not presented with a request from any physician desirous of using the St. Louis City hospital facilities in order to perform an abortion upon his patient. Nor is there anything in the record to show that there is any physician presently on the staff of either public hospital in St. Louis who is willing to admit the plaintiff as his patient for such a purpose. To the contrary, all of the medical personnel who examined plaintiff at Starkloff Hospital stated emphatically that they hold strong personal beliefs against abortion, and at one point plaintiff was told that there was no one to refer her to who was willing to perform such a procedure in the absence of any medical justification. In effect, plaintiff is asking this Court to hold that the City of St. Louis must provide someone to take care of any woman who requests an abortion at one of its hospitals. Such a holding would be clearly contrary to established constitutional principles, and this Court will issue no order designed to have such an effect. — A-26 — This memorandum opinion is adopted by the court as its findings of fact and conclusions of law, and the clerk of the Court is directed to prepare and enter the proper order finding for the defendanis. /s/ ROY W. HARPER U. S. District Judge United States Court of Appeals for the Eighth Circuit St. Louis, Mo. 63101 April 14, 1975 Robert C. Tucker, Clerk Mr. Jack L. Koehr City Counselor Room 314, City Hall 1200 Market Street St. Louis, Missouri 63103 Re: No. 75-1069. Doe v. Poelker. Dear Sir: Enclosed herewith, for use of counsel, printed copy of the opinion of this Court filed today in the above case. Judgment of this Court in accordance with the opinion is also entered today. Very truly yours /s/ ROBERT C. TUCKER Clerk enc. —_—. United States Court of Appeals for the Eighth Circuit No. 75-1069 Jane Doe, et al., ) Appellants, Appeal from the John H. Poelker, Mayor of the City | United States District of St. Louis, Missouri, and R. Dean > Court for the Wochner, M.D., Director of the De- Eastern District partment of Health and Hospitals of Missouri and Acting Hospital Commissioner of the City of St. Louis, Missouri, Appellees. _ Submitted: March 14, 1975 Filed: April 14, 1975 Before Van Oosterhout, Senior Circuit Judge, Ross, Circuit Judge, and Talbot Smith, Senior District Judge.* Ross, Circuit Judge. Jane Doe,' a pregnant resident of St. Louis, Missouri, at the _ * Talbot Smith, Senior District Judge, Eastern District of Mich- igan, sitting by designation. ! “Jane Doe” is a pseudonym for the actual plaintiff. It has been utilized throughout this litigation to protect her true identity in order to avoid harassment due to the controversial nature of subject matter of this action. — A-28 — time the lawsuit was filed, brought this civil rights class action under 42 U.S.C. § 1983 against John H. Poelker, the Mayor of St. Louis, and Dr. R. Dean Wochner, the Director of the Department of Health and Hospitals and Acting Hospital Com- missioner of St. Louis [hereinafter referred to collectively as “the city”) seeking, in her broadly worded complaint, declara- tory and injunctive relief against the existence, application, implementation and en- forcement of express and implied policies, rules, regula- tions, procedures and pract °s barring, thwarting, limit- ing and infringing upon the « lization of the personnel, facilities and services of the general, public hospitals of the City of St. Louis, Missouri . . . for the performance of abortions. The jurisdiction of the federal court was based on 28 U.S.C. § 1343. On March 22, 1974, the district court* sustained a motion by the city and dismissed the complaint for lack of standing and mootness. On appeal this Court reversed and remanded for further proceedings. Doe v. Poelker, 497 F.2d 1063, 1067 (8th Cir. 1974). Accordingly, a trial to the court was held on November 25, 1974, and on January 13, 1975, the court issued a memoran- dum and order finding for the city and dismissing the com- plaint with prejudice. The trial judge appears to have agreed with Doe that there is a city policy prohibiting abortions, but he never considered the constitutionality of such a policy be- cause he felt that Doe had failed to establish that the policy had been applied to her. Instead, it was his opinion that Doe had merely been refused an abortion by certain physicians at the * The Honorable Roy W. Harper, Senior United States District Judge, Eastern District of Missouri. — A-29 — city hospital's obstetrics-gynecology clinic because of their own personal moral and ethical beliefs on that subject. We reverse. The incidents giving rise to this litigation occurred during August, 1973. Doe, the mother of two who was in severe finan- cial straits and who had reason to fear that her husband might be sent to prison, suspected she might be pregnant. She had had five prior miscarriages. She went to the gynecology clinic at Max C. Starkloff Hospital, owned and operated by the city, and was examined by a third-year medical student assigned to the hospital. Although the student did not recall the conversa- tion, Doe testified that she asked him at that time if she could obtain an abortion at the city hospital and that he had responded that it could not be done because it was against hospital policy. Doe returned to the clinic six days later for the results of the laboratory pregnancy test, and when informed by another medi- cal student who was examining her ‘hat the results was positive she requested an abortion at the hospital. The student indicated that he had personal convictions against abortions and that he knew of no one at the city hospital to whom to refer Doe. How- ever, an appointment was made for the next day at the ob- stetrics clinic. At that clinic Doe was seen by Dr. William J. Ott, at that time the chief resident from St. Louis University in the obstetrical service at the city hospital. She told Dr. Ott that she desired an abortion. Dr. Ott, having strong personal beliefs on the subject, refused to consider it and refused to give her even a written statement as to her state of pregnancy. Instead he re- ferred her to another physician at the clinic, Dr. Ziad Abu Dalu, who saw her that same day and the next. Both times Doe re- quested an abortion at city hospital and Dr. Abu Dalu refused, telling her “that we couldn't do one at City Hospital.” Dr. Abu Dalu does have personal convictions against abortions, but did not elaborate them to Doe. Subsequent to the filing of this law- suit, Doe was aborted at a private clinic in St. Louis. —_—s While the students and doctors who saw Doe at the clinic were aware of her personal family and financial problems none of them found any “medical reasons” to justify an abortion, defining such reasons as severe sickness of the patient such as “severe diabetes,” “severe heart condition” or “something of that type.” Doe was suffering from cervical fibroid tumors and polyps, an extremely retroverted uterus and trichomycosis. The district court impliedly found, and there can be no doubt, that there is an official St. Louis city policy promulgated by the mayor prohibiting the performance of abortions in the city- owned public hospitals for reasons other than to save the mother from grave physiological injury or death. The city admitted as much in its answer to the complaint, and the mayor himself testified that, upon taking office in the spring of 1973, he di- rected that the existing policy be continued, understanding that it allowed abortions only if the life of the mother was in danger.* Additionally, Dr. Wochner stated that such a policy had been given to him by the mayor to carry out. In addition to the policy, the evidence reveals that there is a “procedure and practice” which operates to bar the performance of abortions at the city’s hospitals—the-method of staffing the obstetrics-gynecology clinic.‘ The clinic, which is provided by * It is noteworthy that this specific directive was ee by Mayor Poelker several months after the Supreme decisions were announced on January 22, 1973. Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). ‘ urna Wem comme Gate Ge oh) 8 spe Se the district judge thought the com t was not broad enough cover an attack on the staffing of OB-GYN clinic. Ses The complaint specifically mentions “procedures and thwart the performances of abortions as being r attac manner of staffing a ital is certainly a ‘ ieee ond anita” of that hospital. And, of course, any complaint must be read in the light of Fed. R. Civ. P. 8(f), which states that “[ajll pleadings shall be so construed as to do substantial justice.” The city can hardly complain that it was surprised by the staffing issue in view of the broad wording of the complaint. It certainly —_ trict Court for the Wochner, M.D., Director of the De- Eastern District of partment of Health and Hospitals Missouri. and Acting Hospital Commissioner of the City of St. Louis, Missouri, Appellees. | ORDER The petition for rehearing and suggestions for rehearing en banc is denied. This Court in response to the motion of the appellees for rehearing en banc, hereby modifies its memoran- dum opinion filed April 14, 1975, as follows: 1. Pages 11 and 14 are withdrawn and replaced by new pages 11 and 14, attached hereto and by reference made a part hereof. Dated this 7th day of May, 1975. A true copy. Attest Clerk, U.S. Court of Appeals, Eighth Circuit am ft a= the city hospitals to be an unconstitutional denial of equal pro- tection to those indigent pregnant women who, in exercising their right to privacy, may choose to terminate the pregnancy under the guidelines laid down by Roe v. Wade, supra, and Doe v. Bolton, 410 U.S. 179 (1973). We hold that both city owned hospital facilities must be made available for abortion services as they are for other medical procedures. Nyberg v. City of Virginia, supra, 495 F.2d at 1347. We remand the cause to the district court for the fashioning of prompt and appropriate declaratory relief. In addition to de- claring the necessity to change the city’s anti-abortion hospital policy, this relief should, at a minimum, impose upon the city the duty to obtain the services of responsible physicians and other necessary personnel whose personal views on abortion do not prohibit them from providing an abortion. It must also provide the necessary equipment and facilities to accomplish the goal. In short, the city will not be allowed to achieve indirectly through its manner of staffing its hospitals what it cannot ac- complish directly—the prohibition of all nontherapeutic abor- tions in those hospitals. As stated by the Supreme Court in the context of school desegregation: [C)onstitutional rights . . . not to be discriminated against . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nulli- fied indirectly by them through evasive schemes . . . whether attempted “ingeniously or ingenuously.” Cooper v. Aaron, 358 U.S. 1, 17 (1958). We stress, however, that the remedy is to be directed at the city officials acting as such and should declare the necessity court is directed to determine attorneys’ fees and to award them to Doe, together with court costs, against the defendant Poelker —_) for that portion of this case carried on in that court. This should be a fair award based on the guidelines listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (Sth Cir. 1974). Conclusion For the reasons discussed in this opinion the judgment of the district court is reversed and the case is remanded for the prompt fashioning of declaratory'’ relief and for awarding at- torneys’ fees to the appellant Doe for services in the district court. A true copy. Attest /s/ ROBERT C. TUCKER Clerk Court of Appeals (Seal) Eighth Circuit 10 There is no question but that injunctive relief rather than declaratory relief would be the oe remedy in this case. How- ever, after requesting injunctive relief in rer complaint, plaintiff later specifically withdrew that request. Under these circumstances we hesitate to invoke Fed. R. Civ. P. 54(c). —_" = —_—~ United States Court of Appeals for the Eighth Circuit St. Louis, Mo. 63101 June 2, 1975 Robert C. Tucker, Clerk Mr. Jack L. Koehr City Counselor Room 314, City Hall 1200 Market Street St. Louis, Missouri 63103 Mr. Frank Susman Susman, Schermer, Willer & Rimmel! 7733 Forsyth Blvd., Suite 1100 St. Louis, Missouri 63105 Re: No. 75-1069. Doe v. Poelker. Dear Sirs: Enclosed herewith to each of you is copy of order entered by us today in the above case at the direction of the Court. Very truly yours /s/ ROBERT C. TUCKER Clerk eh enc. aw fy O6 ox United States Court of Appeals For the Eighth Circuit No. 75-1069 Jane Doe, et al., ) Appellants, Vv. John H. Poelker, Mayor of the | Appeal from the United City of St. Louis, Missouri, and States District Court R. Dean Wochner, M.D., Di- f for the Eastern rector of the Department of District of Missouri Health and Hospital and Act- ing Hospital Commissioner of the City of St. Louis, Missouri, Appellees. / ORDER (Filed June 2, 1975) This Court, in response to the motion of the appellees to amend judgment by striking that portion of our opinion re- lating to attorneys’ fees based upon the recent case of Ayleska Pipeline Service Co. v. Wilderness Society, 43 U.S.L.W. 4561 (U.S. May 12, 1975), herewith withdraws pages 12, 13 and 14 of the Court's opinion, as revised by our order of May 7, 1975, and substitutes therefor pages 12 to 20, inclusive, the original of which new pages are attached hereto and by ref- erence made a part hereof. —_S Because of the change in substance of the attorneys’ fee portion of the opinion made necessary by Alyeska Pipeline, the appellees are given an additional 14 days within which to file a second petition for rehearing or rehearing en banc. Such petition shall be limited solely to the changes made in the section of the opinion relating to attorneys’ fees, after the rul- ing on which, the appellee may, if it so desires, renew its re- quest for stay of mandate pending appeal. Dated this 2nd day of June, 1975. A true copy. Attest: /s/ ROBERT C. TUCKER Clerk, U. S. Court of Appeals, Eighth Circuit (Seal) — A-46 — to take certain official actions. It should not require that any present member of the staff of the public hospitals or any in- dividual employee of the hospitals participate or assist in any way in the performance of abortions if, as a matter of con- science, he objects to so doing. See Doe v. Hale Hospital, 500 F.2d 144, 147 (1st Cir. 1974), cert. denied, 43 U.S.L.W. 3416 (U.S. Jan. 28, 1975); Nyberg v. City of Virginia, supra, 495 F.2d at 1347. Attorneys Fees On appeal Doe asks that she be awarded attorneys’ fees as costs. The traditional American rule ordinarily disfavors allow- ance of attorneys’ fees to the prevailing party. It is clear, how- ever, that the federal courts do have equitable power to award such fees when, in the interests of justice, the situation calls for them to do so. Hall v. Cole, 412 U.S. 1, 4-5 (1973); Sprague v. Ticonic National Bank, 307 U.S. 161, 166 (1939). Prior to the recent Supreme Court decision in Alyeska Pipe- line Service Co. v. Wilderness Society, 43 U.S.L.W. 4561 (U.S. May 12, 1975), we had believed that one recognized exception to the American rule was where a party acted as a “private at- torney general” in vindicating an important public policy. See Fowler v. Schwarzwalder, 498 F.2d 143, 145-146 (8th Cir. 1974). However, the Alyeska Pipeline opinion has now con- clusively established that the “private attorney general” excep- tion exists only where provided by specific congressional act. Alyeska Pipeline Service Co. v. Wilderness Society, supra, 43 U.S.L.W. at 4570. Therefore, attorneys’ fees may not be awarded under this theory in the instant case. — — A-47 — Nonetheless, we are convinced that an award of attorneys’ fees to Doe is proper here under another exception to the rule which was spcifically recognized and reiterated in Alyeska Pipe- line—“when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Jd. at 4567 (quoting F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129 (1974)). See, e.g., Fowler v. Schwarzwalder, supra, 498 F.2d at 144 (dictum); Bell v. School Foard, 321 F.2d 494, 500 (4th Cir. 1962). The long history of abortion litigation involving the State of Missouri and the City of St. Louis certainly suggests that these governments have delayed complying with the clear dictates of the Supreme Court and this Court relating to abortion to the maximum extent and have obstinately continued to implement and enforce statutes, regulations and policies designed to cir- cumvent the constitutional law declared by the Supreme Court. See Wulff v. Singleton, supra; Doe v. Poeiker, supra; Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974). More specifically, the history of this particular litigation reveals a wanton, callous disregard for the constitutional rights of indigent pregnant women continuing long after those rights had been clearly enunciated by the Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, supra. Mayor Poelker took office in the Spring of 1973, after Roe and Doe were decided in January of that year. Nonethe- less, he deliberately ordered that the city’s anti-abortion policy be kept in effect because “[a]t the early stages there was... . some contest to the decision as it applied [in Missouri)” and because of his “own personal conviction that abortion is murder.” This implementation of his own personal moral pre- ~ — A-48 — cepts was done in spite of the recommendation of Dr. Wochner “that abortions should be provided under circumstances broader than that defined by the phrase, “When the mother’s life is in jeopardy.’ ” When Doe finally challenged the policy by filing the instant complaint the city,“ as soon as it learned that her pregnancy * An indication of the intransigent attitude of the Mayor of the City of St. Louis toward the subject of abortion, and his complete re- jection of the mandates of the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), and Joe v. Bolton, 410 U.S. i79 (1973), is found in his answer to the complaint, some portions of which are set forth as follows: Abortion, for reasons other - to save mf mother from ve physiological injury or death, is against contrary to the laws and public policy of the State and City. Abortion, for reasons other than to safeguard the mother from grave physiological bodily injury or death, has never been within those medical services rendered by the hospitals of the City of St. Louis and has been both illegal (as aforesaid) and outside of, con to and prohibited by medical policies and judgment of the ical authorities of such hospitals. The City and its inhabitants, acting through duly empowered representatives, has the right to make reasonable determinations as to what medical services shall be ied in the public hos- pitals of such City; and abortion, r than to protect the mother from grave ee injury or death, is a medical ape which la y can and has been reasonably excluded rom such services given by the City’s hospitals. All qualified natural persons have an inalienable natural right to participate in the institution of marriage, which no govern- ment has any lawful right to deny or substantially interfere with. = had been terminated, sought to have that complaint dismissed for lack of standing even though, as this Court pointed out on appeal from the resulting dismissal, the “conclusion that Doe has standing is mandated by the resolution of the identical issue —_~ in Roe v. Wade, supra, 41u U.S. at 124, and Doe v. Bolton, supra, 410 U.S. at 187.” Doe v. Poelker, supra, 497 F.2d at The people of the United States, and particularly the ae of the State of Missouri, have a natural right, and a United States Constitutional right to have the Government of the United States, including its judiciary, protect, conserve and guard the institution of marriage in its essential character aforesaid, and to not disturb, negate and destroy such institution by purporting to grant to a female within such institution a unilateral, uncon- ditional right to decide whether to bear children resulting from such marriage, and to carry out through abortion her negative decision. For the Government of the United States to purport to grant such right to such a female as aforesaid, including plaintiff, is a fundamental! violation of the natural rights of the people of the United States and particularly the people of the State of Missouri, and for the Constitution of the United States by as- serting powers prohibited by Article IX of the Amendments of said Constitution and not delegated but reserved by the people according to Article X of the Constitution. For the United States Government to so alter the institution of marriage in its essential nature and character would be a papers amendment of the Constitution of the United States y a method or way unauthorized by said Constitution and par- ticularly Article V, thereof, in violation of said Ninth and Tenth Amendments of the United States Constitution and a violation of the distributive individual rights of the people of Missouri, and person, particularly the husband in each marriage existent of the State of Missouri, to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution. — 1066. (Poelker did not attempt to appeal this decision.) In short, well over a year after Roe and Doe were decided the city was still arguing that a pregnant woman lost her standing to challenge abortion laws once her pregnancy terminated, in spite of the clear dictates of the Supreme Court to the contrary. This, of course, was an effective tactic to delay a decision on the merits; but we believe the record is clear that it was pursued for an oppressive reason—to keep indigent pregnant women from exercising their constitutional rights in the abortion deci- sion for the maximum period of time. — A-50 — We simply cannot close our eyes to a course of conduct in policy-making and litigating which, at the very least, reflects a wanton disregard for the constitutional rights of the plaintiff and other indigent pregnant women in St. Louis. Neither can we ignore the fact that the unconstitutional city policy was de- signed by Mayor Poelker to operate against a class of individ- uals whose economic status was such as to leave them rela- tively defenseless against this violation of their rights. The city has been obdurate and obstinate in compelling these women to conform to the mayor's personal moral beliefs on the abortion issue. The fact that no abortions have been performed in the city’s hospitals since the Roe and Doe decisions attests to the effective and oppressive nature of the mayor's policy and the defense of it in the courts. Accordingly, we award Doe attorneys’ fees for the appellate portion of this litigation in the sum of $3,500 against the de- fendant Poelker.” On remand the district court is directed to * The evidence reveals that defendant Wochner was an appointee of the mayor and that he was simply carrying out his superior’s or- ders in implementing the city policy. Therefore, we do not feel that attorneys’ fees should be awarded against him. _— = determine attorneys’ fees and to award them to Doe, together with court costs, against the defendant Poelker for that portion of this case carried on in that court. This should be a fair award based on the guidelines listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (Sth Cir. 1974). Conclusion For the reasons discussed in this opinion the judgment of the district court is reversed and the case is remanded for the — A-51 — prompt fashioning of the declaratory'’ relief and for awarding attorneys’ fees to the appellant Doe for services in the district court. VAN OOSTERHOUT, Senior Circuit Judge, concurring in part and dissenting in part. The effect of the amended opinion of the majority is to va- cate the award of attorneys’ fees under the private attorney gen- eral exception to the prevailing American rule disallowing at- torneys’ fees to the successful party and the granting of attor- neys’ fees uader the bad faith exception to the general rule. | agree with the majority that the vacation of our prior allowance 10 There is no question but that injunctive relief rather than declaratory relief would be the proper remedy in this case. However, after vesting injunctive relief in her complaint, plaintiff later specifically withdrew that request. Under these circumstances we hesitate to invoke Fed. R. Civ. P. 54(c). —_— sn of attorneys’ fees on appeal under the private attorney general exception is required by Alyeska Pipe Line Service Co. v. Wil- derness Society, — U.S. — (43 U.S.L.W. 4561, May 12, 1975). I dissent from the award of attorneys’ fees on appeal and the remand to the district court with direction to award attorneys’ fees for services in the district court on the basis that the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. My dissent is based on several grounds. I The plaintiffs have not met the burden resting upon them to demonstrate that they properly raised the issue of their right to attorneys’ fees on the basis of the bad faith exception to the general rule. It is well-settled law that issues not raised in the — A-52 — trial court or upon appeal cannot be considered by an appellate court as a basis for reversal. See Smith v. American Guild of Variety Artists, 368 F.2d 511, 514-515 (8th Cir. 1966), and cases there cited. Plaintiffs in their brief upon appeal state: “Appellants respectfully request that pursuant to the jurisdic- tional grounds of their ‘Complaint’, specifically set forth in paragraph | of same, this Honorable Court award to appellants a reasonable attorneys’ fees.” Paragraph 1 of the complaint merely sets out the jurisdictional basis for the action and makes no claim either in that paragraph or in the prayer for attorneys’ fees. Plaintiffs in brief argue that they are entitled to attorneys’ fees under the private attorney general exception to the general rule. No mention is made of the bad faith exception claim. It is unfair to the trial court and the litigants to allow the recovery of attorneys’ fees on the basis of an issue not raised in the trial court or properly raised upon appeal. Under such circumstances, the litigants are not afforded a fair opportunity to meet the issue by evidence or briefs. Upon the original sub- mission of the appeal the bad faith issue was not briefed. II No fact finding on the bad faith issue was made by the trial court. No request for a Rule 52(b) amendment for a finding upon the issue was made. Under Rule 52(a), in cases tried to the court the trial court is the appropriate fact finder. The trial court’s findings can be set aside only if clearly erroneous. We have no right to try cases de novo. Thus if contrary to what has heretofore been said, the bad faith exception is properly before us, the case should be remanded to the trial court for determination of such issue. — A-53 — The discretion for awarding attorneys’ fees under appropriate circumstances, absent statute or contract providing for such fees, rests in the trial court subject to review for abuse of discretion. We cannot substitute our discretion for that of the trial court. IV Alyeska recognizes that upon a proper record attorneys’ fees can be granted in the court's discretion for willful disobedience of a court order or bad faith. The Supreme Court in that case rejected the attorneys’ fees award granted on the basis of private attorney general exception but did not proceed to determine = whether such relief could be granted under another exception to the general rule nor did it remand the case for such determina- tion. Since I am of the view that the resolution of the attorneys’ fees on the bad faith issue is not properly before us, I express no view on the merits of such contention. I dissent from the award of attorneys’ fees on appeal and the remand to the district court for mandatory determination of attorneys’ fees in that court. A true copy. Attest: /s/ ROBERT C. TUCKER Clerk U. S. Court of Appeals, Eighth Circuit (Seal) on» Shen aw fp Git am United States Court of Appeals For the Eighth Circuit No. 75-1069 September Term, 1974 Jane Doe, et al., \ Appellants, Appeal from the United States Dis- trict Court for the Eastern District of Missouri VS. John H. Poelker, etc., et al., Appellees. | (Filed June 24, 1975) The Court having considered second petition for rehearing en banc filed by counsel for appellees and, being fully advised in the premises, it is ordered that the second petition for re- hearing en banc be, and it is hereby, denied. Considering the second petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehear- ing also be, and it is hereby, denied. June 24, 1975 A True Copy. Attest: ROBERT C. TUCKER Clerk U.S. Court of Appeals 8th Circuit (Seal) — A-55 — In the United States District Court Eastern District of Missouri Eastern Division Jane Doe, et al., , Plaintiffs, vs. No. 73C 565(A) John H. Poelker, Mayor of the City of St. Louis, Missouri, et al., Defendants. / ORDER (Filed August 8, 1975) Pursuant to the opinion filed April 14, 1975, as modified on May 7, 1975, and June 2, 1975, and the mandate of the United States Court of Appeals for the Eighth Circuit, issued on July 8, 1975, It Is Hereby Ordered, Adjudged and Decreed as Follows: 1. The policy of defendants prohibiting all nontherapeutic abortions in the general, public hospitals of the City of St. Louis, Missouri, are hereby declared to be unconstitutional. 2. It is further declared that the defendants, in their official capacities, have the duty to take whatever actions may be rea- sonably necessary to effect a change in the policy and procedures prohibiting all nontherapuetic abortions in the general, public hospitals of the City of St. Louis. /s/ ROY W. HARPER U. S. District Judge — A-56 — In the United States District Court Eastern District of Missouri Eastern Division Jane Doe, et al., , Plaintiffs, VS. > No. 73C 565(A) John H. Poelker, Mayor of the City of St. Louis, Missouri, et al., Defendants. / MEMORANDUM AND ORDER (Filed August 8, 1975) This case is before the Court for the prompt fashioning of declaratory relief and for awarding attorneys’ fees to attorneys for the appellant Doe for services in said District Court in ac- cordance with the mandate of the Eighth Circuit Court of Appeals. With respect to the awarding of attorneys’ fees, the Eighth Circuit Court of Appeals at pages 16-17 of its slip opinion said: “On remand the District Court is directed to determine attor- neys’ fees and to award them to Doe, together with court costs, against the defendant Poelker for that portion of this case car- ried on in that court. This should be a fair award based on the guidelines listed in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717-719 (Sth Cir. 1974).” Upon receipt of the mandate from the Eighth Circuit Court of Appeals a hearing was set, and at the hearing testimony was introduced with respect to the atiorneys’ fees. Frank Susman, an attorney for the plaintiffs, testified that he had personally —_Y spent 144 hours working on the case, at a reasonable value of $60.00 an hour; that two of his associates, Newman and Ko- men, had worked on the case; that Newman had worked 102 hours in 1973 and that the value of such services was $35.00 an hour; that Newman had worked 44.4 hours in 1974 and that the reasonable value of said services was $45.00 an hour; that Komen had worked 5.6 hours on the case in 1974, and that the value of such services was $45.00; and that the total fee which had been requested was $11,257.50. Mr. Susman further testified with respect to a letter (Exhibit A), in which he had stated that Jane Doe, the plaintiff, had no obligation to pay any costs or attorneys’ fees in said case. He further testified that in the initial discussion with respect to the case that he, the plaintiff. Joyce Armstrong, the Executive Secretary of American Civil Liberties Union, and associate Newman, had discussed the possibility of bringing the case, and that Jane Doe, the plaintiff, was advised that she would not be responsible for any attorneys’ fees or costs, and that there was no agreement with Jane Doe at that time to turn over any- thing to ACLU. He further testified that he would not receive any fee for the handling of the case, and that any fee allowed would be turned over in full to ACLU, according to their policy. He did not include in his petition any request for an attorney's fee, and no proof was put on before the Court in the trial of the case with respect to attorneys’ fees. He further stated that he is a dues-paying member of the American Civil Liberties Union of Eastern Missouri, and that the petition is signed by him, below which is typed: “FRANK SUSMAN, of the American Civil Liberties Union of Eastern Missouri, Attorney for Plaintiff.” Mr. Susman further testified that some six months ago he had talked with Jane Doe and there was some discussion of fees, and where they would go, and it was clearly understood — A-58 — they would go to ACLU. He further testified that he made no distinction with respect to charges per hour for his work be- tween legal work and investigative work. Courtney Shands, an attorney, testified that the legal rates referred to were reasonable in the St. Louis area. Ben Usetel testified that the $60.00 per hour for Mr. Susman was reasonable, but that in his office, the associates’ rates were $40.00 rather than $45.00 per hour. Jane Doe testified that she had not in writing agreed to turn over any attorneys’ fees to ACLU, nor does she recall any such oral agreement. She further testified she was not aware of any attorneys’ fees to be allowed to her, and that this was the first she knew of it. The record in this case discloses that the actual time spent in court in the trial of this case on the day it was set was ap- proximately two hours and forty-five minutes, and that while the court had conferences with the attorneys, the motions for the most part were submitted on briefs without oral argument. Under the guidelines set out in Johnson v. Georgia Highway Express, Inc., supra, considering the length of time spent in the trial of the case, considering the policy of the attorneys with respect to charging for legal and investigative work, in the court's opinion the sum of $9,317.50 is a reasonable fee for the services in this case, if a fee is to be allowed. The Court of Appeals, as above set out, directed that the attorneys’ fees should be based on the guidelines listed in Johnson, supra, pages 717-719. At page 718, the Court had this to say: “* * * In no event, however, should the litigant be awarded a fee greater than he is contractually bound to pay * + hes — A-59 — In view of the mandate of the Eighth Circuit Court of Ap- peals directing that the attorneys’ fee be based on the guide- lines listed in the Johnson case, and in view of the fact that the above quote is a part of those guidelines, no attorneys’ fee is allowed to the plaintiff, Jane Doe, in this case. /s/ ROY W. HARPER U. S. District Judge —_e In the United States District Court For the Eastern District of Missouri Eastern Division Jane Doe, ef al., ) Plaintiffs, VS. { Cause No. 73C565A John H. Poelker, Mayor of the City of St. Louis, Missouri, e? al., Defendants. / NOTICE OF APPEAL (Filed August 14, 1975) Notice is hereby given that plaintiffs, Jane Doe and the class she represents, hereby appeal to the United States Court of Ap- peals for the Eighth Circuit from an “Order” and “Memoran- dum and Order,” entered on August 8, 1975, failing to award the reasonable amount of attorneys’ fees, determined by the District Court to be Nine Thousand Three Hundred Seventeen and 50/100 Dollars ($9,317.50), and failing to assess Court costs against defendant Poelker. SUSMAN, SCHERMER, WILLER & RIMMEL /s/ FRANK SUSMAN 7733 Forsyth Boulevard—Suite 1100 St. Louis, Missouri 63105 (314) 725-7300 Attorneys for Plaintiffs — A-61 — United States District Court Eastern District of Missouri Office of the Clerk Saint Louis, Missouri 63101 William D. Rund, Clerk Jack L. Koehr City Counselor Rm. 314, City Hall 1200 Market St. St. Louis, Missouri 63103 Re: Case No. 73C 565 (A) Jane Doe vs. John H. Poelker, et al. Enclosed herewith is a copy of a Notice of Appeal filed in the above case together with a copy of the Clerk’s docket en- tries. You are also advised that all parties and counsel are ex- pected to comply strictly with all rules applicable to the ap- pellate process prescribed by the the Federal Rules of Appel- late Procedure, the Rules of the United States Court of Appeals for the Eighth Circuit and to follow the procedural steps set out in the handbook of Practice and Procedure in the United States Court of Appeals for the Eighth Circuit. Very truly yours, WILLIAM D. RUND, Clerk By /s/ JAMES R. VILLANI Deputy Clerk Enclosures ce: Official Court Reporter — A-62 — United States Court of Appeals For the Eighth Circuit St. Louis, Mo. 63101 Robert C. Tucker, Clerk August 22, 1975 Mr. Frank Susman 7733 Forsyth Blvd., Suite 1100 St. Louis, Missouri 63105 Mr. Eugene P. Freeman Deputy City Counselor Room 314 City Hall 1200 Market Street St. Louis, Missouri 63103 Re: 75-1648. Jane Doe, et al. v. Mayor Poelker, et al. Dear Sirs: Enclosed herewith to each of you please find copy of an order entered by us today at the direction of the court. Briefs called for in the order today may be typewritten and Xeroxed on letter-size paper, fastened in the left margin. I will need an original and four copies and additional copies should, of course, be served On opposing counsel. an eG} = It is my intention to set this case down for submission to a panel of judges at the session to be held the week of October 13, 1975, in St. Paul, Minnesota. Very truly yours, ROBERT C. TUCKER Clerk a Enc, copy Mr. William D. Rund, Clerk United States District Court St. Louis, Missouri Appeals Expediter — A-64 — United States Court of Appeals For the Eighth Circuit 75-1648 September Term, 1974 Jane Doe, et al., ) Appeilants, Appeal from the VS. United States Dis- . trict Court for the John H. Poelker, Mayor of the City Eastern District of of St. Louis, Missouri, et al., Missouri. Appellees. | For cause shown it is now here ordered: 1) Counsel for the parties to this appeal may omit prepara- tion of appendix. The court will consider the appeal on a desig- nated record pursuant to local rule 11. Counsel for appellants may have to and including September 2, 1975, in which to file opening rule 11 designation with the clerk of the United States District Court for the Eastern District of Missouri in case No. 73-C-S65(A). 2) It is further ordered that appellants may have to and in- cluding September 12, 1975, in which to serve and file open- ing briefs and appellees may have to and including October 3, 1975, in which to serve and file answer briefs. August 22, 1975 — A-65 — CHARTER of the CITY OF SAINT LOUIS, MISSOURI Adopted by the Vote of the People, June 30, 1914 In Effect From AUGUST 29, 1914 As Amended Pursuant to Ordinances 33644—35368—39898—4202 1—42060—43505 43548—44822—47117—49101—49502—-49540 49821 and 50165 CONTENTS Charter Article DBD 056.0 nbs ccasosdc cedusvieces ES PTT eT Peer e err Tree III Recall of Elective Officers ................. a rr . cceeebeceeuaeces ee St Ca ee ee eke FE ee Be EY di eneehke 66a baeeS dads sede i denes Article XII XII XIV XV XVI XVII XVIIT XIX XX XXI XXII XXII XXIV XXV Chapter Scheme — A-66 — Page EE cabin Ge Sane nee ONS ON OEE 32 Board of Public Service .. 0... ccc cccccnses 33 Art Museum and Zoological Park ........... 43 Department of Fimance ..............0000: 43 Board of Estimate and Apportionment ....... 50 Re ry ere er ee 51 EE sco. i0u bia been Sdaes eheennes 54 DT dire ttuded sue es eek aeeekaeeten 73 SE ES bn beued ban eee cevnredeens 75 DE cc cto dee eaesee eb enenee ae 75 Public Works and Improvements ........... 86 a ee 94 Improvement Bonds and Funds ............. 97 Miscellaneous Provisions .................. 99 Schedule (Transitional Provisions) ........... 101 Scheme Page PPT OTT ETC ORT TEEPE TCO O CTT rn 105 —_—Y Article XVII11. Civil Service* Section |. Definitions.—The terms defined in this section, when used in this article, have the following meanings except where the context clearly requires otherwise: (a) “Appointing authority” means any person or group of persons having power by law or ordinance, or by lawfully dele- gated authority, to make appointments to any position in the city service. (b) “City service” or “service of the city” means all positions as herein defined, that are subject to control and regulation by the City of St. Louis as a municipal corporation or any of its officers or other agencies as such. (c) “Class” or “class of positions” means a definitely recog- nized kind of employment in the classified service designed to embrace all positions sufficiently alike to be treated alike. (d) “Classified service” means all positions in the city serv- ice except those specifically placed in the unclassified service as herein defined. (e) “Compensation” means the salary, wages, fees, allow- ances and all other forms of valuable consideration, earned by or paid to any employe by reason of service in any position, but does not include any allowance for expenses authorized and in- curred as incidents to employment. (f) “Competitive position” means any position in the classi- fied service not expressly designated as an excepted position in this section. (g) “Examination” means all the tests of fitness, taken to- gether, that are applied to determine the fitness of applicants for positions of any class. 4 Editor's note.—This article is an amendment to the charter which was adopted pursuant to Ordinance 42021. — A-68 — (h) “Excepted position” means any position in the classified service not subject to the provisions of this article requiring competitive tests of fitness for appointment and such other pro- visions as, by their terms, apply specifically to competitive po- sitions alone. All such positions, however, shall be subject to all the other provisions of this article insofar as consistent with law and with this exception. The following described positions, and no others, shall be deemed to be excepted positions: (1) all positions filled by election of the people; (2) all positions of heads of principal departments and of independent agencies, that are filled by appointment by the mayor; (3) one position of executive secretary and one position of secretary and stenographer to the mayor; (4) all positions of paid members of boards; (5) all officers and employees of the board of aldermen. (i) “Employe” means a person legally occupying a position. (j) “Grade” means all positions or classes of positions in the city service that are determined to be of the same level with respect to the difficulty and responsibility of their duties and any other measure of value, and for which the same rate or scale of rates of compensation is prescribed, under the provisions of this article. (k) “Position” means any appointive or elective office, and any employment, or two or more of such offices and employ- ments the duties of which call for services to be rendered by one person. (1) “Test of fitness” means any means or measure for deter- mining the merit and fitness of persons for origina! appointment Or promotion to positions of a class; and — A-69 — (m) “Unclassified service’ means all positions not subject to the provisions of the charter, ordinances and civil service rules relating exclusively to positions in the classified service, and in- cludes positions, as follows, and no others: (1) all positions of members of boards, commissions or committees serving without compensation; (2) all other positions in which services are rendered with- out compensation; (3) all officers and employes of the board of aldermen. Sec. 2. Purpose and basic requirements of article.—lIt is the purpose of this article to provide a modern and comprehen- sive system of personnel administration for city, whereby econ- omy and effectiveness in the personal services rendered to the city, and fairness and equity to the employes and the taxpay- ers of the city, alike, may be promoted. To accomplish this end the provisions of this article shall be liberally construed. The following principles and policies shall be observed, as basic requirements: (a) Merit and fitness—All appointments and promotions to positions in the service of the city and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness, which so far as practicable, shall be ascertained by means of competitive tests, or service ratings, or both. (b) Rates of pay.—Fair and equitable rates of pay shall be provided with the consideration of both the employes and the taxpayers and with due observance of the principle of like pay for like work, and suitable differences in pay for differ- ences in work. (c) Employes’ interests——Consideration shall be given to the desires and interests of the employes insofar as consistent — A-70 — with the best interests of the city as an employer, and of the public served. (d) Nature of city service.—The city service, so far as prac- ticable, shall be made attractive as a career, and each em- ploye shall be encouraged to render his best service in willing compliance with the provisions of this article. Sec. 3. Scope of civil service rules—To give effect to the purpose and requirements set forth in the next preceding sec- tion, the civil services rules hereinafter required to be adopted shall provide for the following things, among others, with re- lation to the classified service as defined herein: (a) Classification plan.—For a systematic classification plan providing for the classification of all positicns on the basis of their duties, responsibilities and resulting qualification require- ments; for definitions of the classes in the classification plan; for the allocation of all positions to their appropriate classes in the classification plan; and, for the amendment and continuous administration of the classification plan. No person shall be employed or paid in any position until the class of such posi- tion has been determined by allocation of the position by the director to its appropriate class. (b) Compensation plan.—For dcvelopment and recommen- dation to the mayor and aldermen of a systematic compensa- tion plan, and amendments thereto from time to time as’ deemed necessary, to provide for uniform scales of compen- sation for all positions of the several classes, by grades, with due relationships among scales of compensation of the several grades, and for the continuous administration of such com- pensation plan as is adopted by ordinance. (c) Competitive examinations.—For determining merit and fitness for appointment and promotion to competitive positions by means of competitive examinations held after due public —&Ti — notice. The tests of fitness in such examination shall be prac- tical in character and designed fairly to measure the relative qualifications of candidates for positions of the several classes. (d) Certification and appointment of eligibles —For certifi- cation of eligibles and for appointment and promotion to com- petitive positions on the basis of such tests, subject to a work- ing test period of probation not to exceed one year. One of the highest three (3) eligibles certified or remaining on the list of eligibles certified to be appointed to each vacancy. (e) Filling vacancies; promotions.—For filling vacancies in higher competitive positions, so far as practicable, by means of promotion on competitive examination except where va- cancies are filled, in the interests of the service, by demotion, transfer, reinstatement or re-employment, in the order of pref- erence here indicated, where applicable. Promotion on com- petitive examination shall be deemed to be practicable when- ever there are qualified employes in positions of lower classes who are willing to compete. (f) Tenure of employment.—For indefinite tenure oi em- ployment in positions in the classified service during merito- rious service, except in cases for which indefinite terms are prescribed by law or charter, and except in cases of tempo- rary appointment hereunder, but with due provision for layoff on termination of the need for employment in any position or of funds available therefor. (g) Temporary appointments.—For temporary appointments, without competitive tests, to competitive positions, for not to ex- ceed sixty days in any case, which shall not be renewed or ex- tended. Such temporary appointments to be provided for shall include provisional appointments in the absence of available eligibles pending establishment of eligible registers and certifica- tion and appointment therefrom, transient appointments for —_ kt short jobs of work, and emergency appointments pending filling of vacancies by other means than such emergency appointments. (h) Service standards and ratings.—For the establishment of standards of service and a system of service ratings. The service ratings provided shall be given consideration in ex- aminations for promotions, and in connection with increases in pay, layoffs, reemployments, transfers, reinstatements, reduc- tions in pay, demotions and removals hereunder. Standards of service shall be established which any employe must meet to qualify for an increase in pay, reinstatement, re-employment or promotion, and other standards shall be established, failure to meet which shall result in action for decrease in pay, demotion or removal. (i) Welfare programs.—For cooperation by the director with appointing authorities in promoting programs of employe wel- fare, including such training, health, recreation, economic and other programs as may be deemed desirable. (j) Transfers ——For transfers between competitive positions of the same grade for which no additional or different tests of fitness are required, in the same or different departments, for the benefit of the service directly, or indirectly for such benefit by promotion of satisfaction of the employes, or by elimination of supernumerary positions. (k) Reinstatement.—For reinstatement to and re-employ- ment in competitive positions after layoff, and after other separation without delinquency or misconduct, where the in- terests of the service will be served thereby. (1) Hours of duty, holidays and leaves—For recommenda- tions by the commission to the mayor and aldermen, regarding ordinance provisions to regulate the hours of duty, holidays and leaves of absence, and for administration of any such ordinances ee —_—~ adopted. Such ordinance provisions as are adopted shall be administered and carried into effect by the department of per- sonnel herein provided for. The minimum daily, weekly and annual service required under regular full-time employment shall be fixed by ordinance with due relation to the requirements in private employment in the city and with a view to equity as between positions of different classes and those under different appointing authorities. The requirements may vary for different classes or conditions of employment but shall be uniform in their application to employes of the same classes under like conditions of work. The ordinance provisions shall be enforced by effective control of attendance and absence and audit of pay rolls with reference thereto. Each employe in the classified service shall be required to engage in the actual work of the office or employment held to such extent as his services may be required for the compiete discharge of the duties of such office or employment and a failure so to do shall be ground for re- moval. (m) Part-time services—For payment for part-time services on an equitable basis in relation to the hour employed as com- pared with the requirements for full-time service. Where less than full-time service is required or rendered in any position, compensation for such service shall be paid on the part-time basis established by such rules. (n) Removals and demotions.—For removals, demotions and decreases in pay in the cases of employes whose service rendered is below satisfactory standards, designed to promote the efficiency of the service. Such action shall be effective only after written notice to, with right of appeal in, the employes affected, and after such investigation as is appropriate to insure that the action taken is on the sole ground of merit and fitness. (0) Fines and suspensions.—For fines, and for suspensions without pay for not to exceed thirty days, and for othér dis- — dp a ciplinary measures deemed desirable, of less severity than those set forth in the item next preceding. (p) Resignations —For resignations in good standing, for in- vestigation of reported resignations to determine their good faith, for records of the causes of resignations, and for initiating action to remove causes leading to excessive numbers of resig- nations of capable employes. (q) Roster of employes.—For maintenance of a complete official roster of employes showing for each employe, his name, address, class title, rate of pay, and changes ir. any of them, and such other information as may be deemed desirable. (r) Retirement system.—For recommendation if and when permissible under the constitution and laws of the state of Mis- souri, to the mayor and aldermen by the civil service commission of a suitable system for the retirement of employes who, by reason of injury, ill health or age, have become incapacitated for rendering satisfactory service, and for administration by the department of personnel of such retirement system as may be adopted by ordinance. (s) Reports by appointing officers.—For reports by appoint- ing officers of new positions and changes in the positions au- thorized and in the employments therein, and of attendance and absence, which upon approval by the director shall form basis for audit and approval of pay rolls by the comptroller as to com- pliance with this article and the rules and ordinances thereunder. (t) Audit of pay rolls ——For audit of pay rolls by the comp- troller as a condition precedent to payment by the treasurer or any other disbursing officer of any claim or account for personal services. The comptroller shall not approve any item of a pay roll or account for payment of any employe, or issue his warrant for any payment therefor, except on evidence satisfactory to him = &1§ — that the person named has been lawfully employed in a position duly authorized and is entitled to payment for actual service in such position or authorized absences therefrom at the rates, for the periods and in the amounts, covered by such pay roll or account. (u) List of nonessentiai , ositions.—For the listing of posi- tions deemed nonessential for effective administration of the city’s affairs, and for seeing that, as occasion arises, steps be taken toward transfer of the employes therein to any other vacant positions to which they are eligible to be transferred under the provisions of this article, and for prevention of filling of any vacancy occurring therein. (v) Administration.—For the administration and enforce- ment of the provisions of this article and all provisions of ordi- nances and rules adopted in pursuance thereof, by the director, subject to the rules of the commission and subject to appeal to and review on appeal by the commission. (w) Examination fees——Such rules may provide for the charging and collection of reasonable fees from applicants for examinations as prerequisites to the acceptance of their applica- tions, and in such amounts as are calcuated to pay part or all of the cost of preparing and holding the examinations and rating the results thereof. Sec. 4. Ordinances to be enacted.—The mayor and aldermen shall provide, by ordinance: (a) Compensation plan.—For adoption of a comprehensive compensation plan for the fixing of rates of pay of all employes in the classified service, and amendments thereto on recommen- dation of the civil service commission, and for its application and interpretation. Every appropriation and expenditure for personal services in any position in the classified service therc- —_—< after shall be made in accordance with the compensation plan so adopted and not otherwise. (b) Retirement system.—For a contributory retirement sys- tem on a sound actuarial basis, if and when permissible under the constitution and laws of the State of Missouri, to provide for retirement of employes in the classified service who have become unable to render satisfactory service by reason of physi- cal or mental incapacity. (c) Hours of duty and holidays.—For regulating hours of duty, holidays, attendance and absence, in the classified service. (d) Appropriations for department of personnel.—For appro- priations for the purposes of the department of personnel, ade- quate to provide for the effective administration and enforce- ment of the provisions of this article and the rules and ordi- nances adopted thereunder. In each fiscal year, such appropria- tions shall aggregate not less than one-half of one percent of the amount of all expenditures for personal services in the city service in the fiscal year next preceding, and in default of such minimum appropriations or any part thereof, such minimum appropriations or any deficiency therein, nevertheless shall be deemed to have been made. Sec. 5. Department of personnel.—There is hereby created a department of personnel of the government of the city which shall consist of a director of personnel as head thereof, a civil service commission and such other employes as may be needed. Sec. 6. Civil service commission—Composition.—(a) Quali- fications, appointment and term of members.—The civil service commission shall consist of three members who, on the dates of their appointment, shall have been citizens of the United States and residents of the City of St. Louis for at least two years next preceding. They shall be persons whose past records indicate that they favor the merit system of personnel administration. —* No person shall be eligible to appointment as a member of the civil service commission who holds any other salaried public office or who has held any elective public office or elective posi- tion in any political party, or any paid position in any political party, within the four years next preceding the date of his ap- pointment. Members shall be appointed by the mayor without regard to any political consideration. Within thirty days after the adoption of this section, the mayor shall appoint the first civil service commission, designating one member to serve for a term of two years, a second member for a term of four years and the third member for a term of six years from the first day of July, next preceding. All subsequent appointments of members of the commission shall be for six years, except that any vacancy in the membership of the commission occurring at a time other than the expiration of a term shall be filled by the appointment of a member to serve for the unexpired portion of the term. (b) Removal of members.—The mayor may remove a mem- ber of the commission only upon charges of nonfeasance, mal- feasance or misfeasance in office and after a public hearing to be held not less than ten days after notice to the members so charged, accompanied by a statement in writing of the specific acts charged. At the hearing, the member may be represented by an attorney and shall be entitled to present witnesses in his defense. (c) Compensation.—Each member of the commission shall be paid fifteen dollars for each day on which he has actually attended a meeting of the commission officially held, as a mem- ber thereof, but in no case shall any member be paid more than sixteen hundred and eighty dollars in any one fiscal year. Sec. 7. Commission powers and duties —The commission shall have power, and it shall be its duty: —_* (a) Administration.—To describe, and to amend from time to time as such action is deemed to be desirable, rules for the ad- ministration and enforcement of the provisions of this article, and of any ordinance adopted in pursuance thereof, and not incon- sistent therewith. (b) Ordinances.—To recommend to the mayor and aldermen in accordance with this article, ordinances to provide for: (1) a compensation plan providing properly related scales of pay for all grades of positions and rules for its inter- pretation and application; (2) a plan for a system for retirement of superannuated and otherwise incapacitated employes, if any when permis- sible under the constitution and laws of the State of Missouri; (3) regulation of hours of duty, holidays, attendance and absence; (4) such other matters within the scope of this article as require action by the mayor and aldermen; (5) such changes in any such matters from time to time as may be deemed to be warranted. (c) Investigations—To make such inquiries and investiga- tions as it may deem to be warranted regarding the administra- tion and effect of the provisions of this article and of ordinances and rules adopted in accordance therewith, and to make such recommendations to the director and to the mayor and alder- men as in its judgment may be warranted in the premises. (d) Decisions —To consider and determine any matter in- volved in the administration and enforcement of this article and the rules and ordinances adopted in accordance therewith that may be referred to it for decision by the director, or on appeal by any appointing authority, employee or taxpayer of the city, from any act of the director or of any appointing authority. —< The decision of the commission in all such matters shall be final, subject, however, to any right of action under any law of the state or of the United States. (e) Director —To hold an examination for the position of director, whenever eligibles therefor are needed, and to certify eligibles resulting therefrom to the mayor, and also to perform all such duties with reference to that position as are assigned to the director as to all other positions in the classified service; and (f) Reports.—To transmit to the mayor and aldermen, with such additions and comments as it may desire to make, such annual and special reports as the director of per:onnel may sub- mit for its action. (g) Reinstatement of employes.—To order the reinstatement without loss of pay of any employe who has been discharged, demoted or reduced in rank or compensation for religious, racial or political reasons. (h) Limitations —Except as provided in this section, the com- mission shall have no administrative powers or duties. Except as so provided, it shall have no power to direct or control any employe of the department of personnel or other employe of the city, or the action to be taken by any of them in any matter or case. Neither the commission nor any of its members shall have power to take any action except by majority vote in meet- ing assembled. Sec. 8—Director of personnel—Appointment; qualifications; compensation.—The director of personnel shall be appointed by the mayor from a certification of eligibles made by the civil service commission from an eligible list established by means of competitive tests of fitness conducted by the civil service com- mission, within thirty days after such certification. One of the three eligibles standing highest on such certification who have all such duties with reference to that position as are assigned to — A-80 — indicated their willingness to accept appointment shall be ap- pointed by the mayor. The commission shall secure such infor- mation and assistance as may be practicable in formulating the fitness tests for director and rating the results, from persons ex- perienced in public personnel administration. Any person to become eligible for appointment as director shall have had not less than five years’ experience in personnel administration, of which not less than two years shall have been in public personnel administration, and shall be conversant with the principles and techniques of modern public personnel ad- ministration. He need not be at the time of examination or ap- pointment, a resident of the City of St. Louis. All action under this section shall be subject to the other provisions of this article and the rules adopted in pursuance thereof, as far as consistent with this section. The commission shall fix the initial salary of the director at not less than six thousand dollars a year to be in effect until a compensation plan is adopted hereunder. Thereafter the salary of the director shall conform to such compensation plan. Sec. 9. Director's powers and duties generally; removal from office—The director shall be the head of the department of personnel, responsible for the conduct of all of its affairs except as to such powers and duties as are vested in the commission by this article. He shall have power and it shall be his duty, in person or through the department of personnel: (a) Secretary of commission.—To serve as secretary of the commission, to see to the keeping of the minutes and records thereof, to conduct investigations and prepare reports for the commission in matters under its consideration, and in all other proper ways to faciitate the actions and proceedings of the commission. — A-81 — (b) Appointment of employes; administration.—To appoint all employes of the department of personnel except the director and the members of the commission, and to direct and control their work and, under the customary financial procedures of the city, the expenditures from appropriations for the department. (c) Roster of employes.—To establish and maintain a roster of all city employes showing the salient facts of the employment history of each employe. (d) Preparation of rules—To prepare and recommend, for action by the commission, rules, including a classification plan and a service rating plan, drafts of ordinances for recommenda- tion to the mayor and aldermen in matters requiring such ordi- nances, including a compensation plan, and changes as deemed desirable from time to time in such rules and ordinances. (e) Classification of positions—To allocate each position in the classified service to its appropriate class in the classification plan adopted under the provisions of this article, and reallocate positions as conditions warrant, from class to class. (f{) Definitions of classes and grades.—To prepare and main- tain appropriate definitions of classes and grades in the classi- fication plan and amend them from time to time as he may deem such action warranted. (g) Eligible lists—To hold examinations, pass upon the qual- ifications of applicants, and establish eligible lists, as needed, and to certify names of eligibles to appointing authorities for filling vacancies in competitive positions. (h) Employe programs.—To cooperate with appointing offi- cers and others in providing programs of training for employes, for employe welfare, for promoting of employe morale, and for otherwise raising of standards of performance in the service in every practicable way. 2 — A-82 — (¢) Employment transactions—To pass upon, for compli- ance with the provisions of the charter and ordinances and these rules, and approve or disapprove as to compliance therewith, all appointments, demotions, transfers, promotions, service rat- ings, leaves of absence, changes in rates of pay, suspensions, separations, and other employment transactions affecting the Status of employes. (j) Investigations —To make such investigations as he may deem desirable with respect to the enforcement and effect of the personnel provisions of the charter and ordinances and of the rules, and such special investigations as the commission or the mayor may request and make special reports relative thereto. (k) Compensation plan.—To devise and recommend to the commission a compensation plan consisting of scales of pay for the several grades or classes in due relation to each other and to rates prevailing for like employment in private industry, rules for the interpretation and application of the plan, and changes in such plan and rules from time to time as deemed desirable. (1) Administrative regulations—To make such administra- tive regulations as he may deem necessary, not inconsistent with the charter, ordinances applicable and these rules, relative to matters involved in the administration of the personnel provi- sions of such charter ordinances and rules. (m) Reports—To make annual reports to the commission for its approval and transmission to the mayor and aldermen on the work of the department and the administration and effect of this article, with such recommendations for action as he may deem desirable, and such special reports as may be requested by the commission or the mayor. Such reports shall be public records. (n) Nonessential positions—To aid the mayor and alder- men, and the several appointing officers, in determining the numbers and kinds of positions needed to carry on the city’s — A-83 — business and in discovering and labeling unnecessary positions in order that they may be designated as supernumerary, so that they may be eliminated as opportunity affords for transfer of the employes to other positions, under the provisions of this article, and so that, as they become vacant, steps may be taken to keep them from being filled. (o) Assistance to appointing authorities —To aid the mayor and aldermen, and appointing authorities in all practicable ways in handling other personnel matters relating to positions under their jurisdictions; and (p) Additional powers and duties.—To do all other and fur- ther things necessary or proper for making effective the provi- sions of this article and all rules and ordinances adopted in pur- suance thereof, and not inconsistent therewith, whether of the same kinds as those specified in this section, or of different kinds. The power of the director to make effective the provi- sions of this article and of ordinances shall not be deemed to be contingent on the adoption of rules but, in the absence of rules that are applicable, he shall have power to take such ac- tion, not inconsistent with this article or with ordinances pur- suant thereto, as may be reasonably necessary and proper to effectuate the purposes thereof. The personnel director may be removed from office only upon charges of nonfeasance, malfeasance or misfeasance in office and after a public hearing to be held not less than ten days after notice to the director accompanied by a statement in writ- ing of the specific acts charged. The personnel director may be represented by an attorney and shall be entitled to present wit- nesses in his defense. The public hearing shall be conducted by the civil service commission. At the conclusion of the hearing, the commission shall recommend to the mayor whether or not the personnel director shall be removed from office. The mayor shall have the power to accept or reject the recommendation of the civil service commission and his decision shall be final. —_Y Sec. 10. Selection of examiners and assistants; qualifications of employes.—The director of personnel may select suitable per- sons in the service of the city, with the consent of the ap- pointing authorities, under whom such persons serve, to act as examiners under his direction or otherwise to assist in the ad- ministration of this article and the rules and ordinances adopted thereunder. It shall be deemed part of the official duties of all employes so selected, to render such services without extra com- pensation therefor and in addition to other qualifications re- quired by this charter, all officers and employes, except day laborers, and except in such cases requiring scientific, mechan- ical, professional or educational qualifications as may be de- termined by the civil service commission, must have resided in the city for at least one year and failing or ceasing to so reside, shall forfeit their office or employment. Sec. 11. Offices and facilities to be provided; unauthorized compensation.—lt shall be the duty of all employes of the city to allow the reasonable use of public buildings, and to heat and light them as conditions may require, for holding examinations, and in all other proper ways to facilitate the holding of such examinations. All employes of the city shall grant the director of personnel and any agent authorized by him, free access to the premises, and the records relating to employes, under their control, during the usual business hours, and shall furnish them such facilities, assistance and information as may be required in carrying into effect the provisions of this article and the rules and ordinances adopted thereunder. After notice to the comptroller by the director that any per- son is employed or is proposed to be paid as an employe in the classified service in any amount not provided for under the pro- visions of this article and any rules and ordinances in effect not inconsistent therewith, the comptroller shall be charged with notice thereof and shall not approve any further payment to such person except in accordance with such provisions. — A-85 — Sec. 12. Status of persons employed by city when article takes effect.—Every person who, when this article takes effect, is legally occupying, by regular appointment thereto, a position placed by this article in the classified service, shall be entitled to continue to occupy such position, without further examination for such employment, and shall become subject to the provisions of this article, including the provisions relating to service rating, with the same effect as though he had been appointed to the position occupied, under the provisions of this article. The provisions of this section also shall apply to all persons who, on the date of acquisition of any public utility hereafter acquired by the city, are regularly employed by such utility. Sec. 13. Liability of officers and sureties for payment of un- authorized compensation.—No claim of any person appointed or employed contrary to the provisions of this article or the rules and ordinances thereunder, whose payroll or account is refused approval or payment, shall be paid by the city, but the officer or officers appointing or employing, or attempting to appoint or employ any such person, and the sureties on his or their official bonds, shall be liable jointly and severally for the amount due to such person by reason of such employment or purported em- ployment. No officer, during the time of his official service or thereafter, or his surety, or other person on behalf of either, shall be reimbursed by the city for any sum so paid or recovered. The city counselor, or special counsel designated therefor by the board of aldermen, shall prosecute such actions as may be neces- sary to recover any sums paid contrary to the provisions of this article from any officer or officers making the appointment or continuing the employment on which such payment was based, in contravention of the provisions of this article or of the rules and ordinances made in pursuance thereof, or any officer sign- ing or countersigning or authorizing the signing or countersign- ing of any order or warrant for payment, or making any pay- ment, therefor, or from the sureties of any such officer or officers on their official bonds. —_Y Sec. 14. Examination for licenses —The department of per- sonnel, by agreement with any other department or other agency of the city government, may conduct examinations to determine the qualifications of applicants for licenses issued by such de- partment or other agency, and certify the results thereof, subject to reimbursement of the reasonable costs of such service by transfer from the appropriations of the agency served to those of the department of personnel. Sec. 15. Unlawful conduct relating to examinations.—No pers [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2116%3A01. Public record. Not legal advice.