Petition — Gore v. Wochner

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Supreme Court, U.S

FILE

g0-18l AUG 6 1980

“WICHAEL RODAK, JR., CLERK

No.

IN THE

Supreme Court of the United States

———— TERM, 1980

— ip,

>

State of Missouri ex rel.

Minnie E. T. Gore, and

Jennye Robinson,

Petitioners

VS.

R. Dean Wochner, M.D., et al

Respondents

ee

On Writ of Certiorari to the

United States Court of Appeals

for the Eight Circuit

a

PETITION FOR WRIT OF CERTIORARI

i ol

Stephen J. Nangle

7 North Brentwood, Suite Cl

Clayton, Missouri

(314) 725-4114

Attorney for Petitioners

SISSON PRESS, 1627 Locust Street, St. Louis, Mo. 63103 — 314/241-5956

>

—_ji_—

QUESTIONS PRESENTED FOR REVIEW

This cause presents the following questions of interest and

importance which warrant (and require) the attention of this

Honorable Court, to-wit:

A. What violations of state and municipal laws, enacted to

insure the orderly administration of tenured civil service

within a municipal corporation, constitute an “infringment” of

acknowledged federally protected rights sufficient to plead a

claim under 42 U.S.C. §1983?

B. When does the widespread malfeasance, misfeasance,

and nonfeasance in the enforcement of the regulatory proced-

ures established by city charter and ordinances to secure and

promote the civil service within a municipal corporation rise

to the level of a federal constitutional violation by the munici-

pal corporation and its executive officers under 42 U.S.C. §1983

after Monell v. Department of Social Services of the City of

New York, 436 U.S. 658? ) aa

C. Whether the opinion of the Eighth Circuit Court of

Appeals erroneously interprets Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 for the reasons

that Monell dealt with a municipal corporation’s liability for

constitutionally impermissive conduct which may be fairly said

to constitute the policy, custom, or usage of the corporation

itself, whereas, the Court below held that the gross deviation

of mandatory procedures by various interrelated department

heads as they “touch and effect” plaintiffs’ acknowledged fed-

erally protected rights does not state a cause of action under

42 U.S.C. §1983?

D. Does the opinion of the Eighth Circuit below directly

conflict with controlling Missouri case law interpreting 42

U.S.C. §1983 as enunciated in Tyler v. Whitehead, 583 S.W. 2d

gs an

240 (Mo. App. 1979); the Supreme Court of Missouri having

previously held that state courts have concurrent jurisdiction of

42 U.S.C. §1983 claims as stated in Shapiro v. Columbia Union

National Bank and Trust Company, 576 S.W. 2d 310, 316, (Mo.

Banc 1978)?

E. Whether the opinion of the Eighth Circuit Court of

Appeals is in conflict with Sigler v. Lowrie, 404 F. 2d 659, 662

(8th Cir. 1968) cert. denied 395 U.S. 940 (1969) in that Sigler

dealt with rights derived solely from state law, but the Court

below, in the instant case, while acknowledging that federally

protected rights are properly plead, held that the plead viola-

tions of state law which underpin and enumerate said pro-

tected rights do not state a cause of action sufficient to plead

a claim under 42 U.S.C. $1983?

F. Whether the opinion of the Eighth Circuit Court of

Appeals is in conflict with Boyer v. Wisconsin, 345 F. Supp.

564 (E.D. Wisc. 1972) in that Boyer held the violation of state

law which results in an infringement of a federally protected

right states a cause of action under 42 U.S.C. §1983, but the

Court below, in the :nstant case, determined no cause of action

exists, as plead, even while it stated that properly raised feder-

ally protected rights were plead; but pervasive violations of

state laws which touch and effect the orderly administration of

those rights is not actionable under 42 U.S.C. §1983?

G. What gross deviations from an integrated statutory

scheme of state and local laws establishing the administrative

appellate rights of employees within the tenured civil service

is actionable under 42 U.S.C. §1983 in light of Monell when

the city counselor’s office of a municipal corporation represents

an appointing authority who allegedly tendered and then sub-

sequently represented a civil service commissioner who alleg-

edly accepted a bribe to deny admitted federally protected

— iii —

rights at a time when said city counselor was the statutory

lawyer for other department heads whose alleged misfeasance,

malfeasance, or nonfeasance casually contributed to the suc-

cess of the bribe in question?

— ivy —

STATE OF MISSOURI, ex rel.

MINNIE E. T. GORE, and JENNYE ROBINSON,

Petitioners

vs.

R. DEAN WOCHNER, M.D., individually and in his official

capacity as the Director of the Department of Health and Hos-

pitals for the City of St. Louis, and FRED GOULD, individu-

ally and in his official capacity as a Civil Seryice Commissioner

for the City of St. Louis, and DAVID V. ESSEX, SR., individu-

ally in his official capacity as a Civil Service Commissioner for

the City of St. Louis, and, CHARLES MARINO, individually

and in his official capacity as a Civil Service Commissioner for

the City of St. Louis, and, JOHN POELKER, individually and

in his former official capacity as the Mayor of the City of St.

Louis, and JOHN BASS, individually and in his former official

capacity as the Comptroller for the City of St. Louis, and,

R. ELLIOTT SCEARCE, individually and in his former official

capacity as the Director of the Department of Personnel for

the City of St. Louis, and JAMES CONWAY, individually and

in his official capacity as the Mayor of the City of St. Louis,

and, RAYMOND PERCICH, individually and in his official

capacity as the Comptroller for the City of St. Louis, and,

WILLIAM DUFFE, individually and in his official capacity as

the Director of the Department of Personnel for the City of

St. Louis, and, ROBERT CUMMINGS, individually and in his

official capacity as a Civil Service Commissioner for the City

of St. Louis, and, THE CITY OF ST. LOUIS, a municipal

corporation, and, THE CIVIL SERVICE COMMISSION, a

municipal agency established under the Charter of the City of

St. Louis, and THE DEPARTMENT OF PERSONNEL, a

municipal department under the municipal corporation of the«

City of St. Louis, Respondents.

—-— Y —

TABLE OF CONTENTS

Cuestions Presented for Review ........:.::::seseeseseeereererenenenens i

PCIE OD nw PYOCOCRIARE ....0.0sssesescosccervaccnsnahhicesatnensesnsessbed iv

MN A CINE a iaiacicccecssinsssncuscsssitnsplpbiehebablieapenedidieaiian Vv

I, soins i csaindanssnensnnncevecnsuvcnssahonamenscensesiosaiiiainaal vi

Opinions Below .0.....0.....cccccccssscssscosecnsessoncavessvoecsceescocnsesestonstes 1

PAPI RTNRTI osssircssvccsscsovsersseccescsesonssseisvensecivoasivadscmsenendessveseretoce 2

i MII. saciosacnsijinianassindiseneneestaniiibandipeelticilll 2

SINS WT WI II och scecosncvecesessnsabuegutinapetiniassasiiiainean 2

Reasons for Granting the Wit .............:sccsssssrsseeseeeneeesees 6

NOIR kn, scpiapasbnnltiniaeiniseciiicnopecsuancemiielseitadbeipabaiael 13

POI cncensnsesescsvisscoodsesnsconersusncccescecnsnonendeeneesecsnnansigeanennas A

A. Opinion of United States Court of Appeals for

the Eighth Circuit, 620 F. 2d 183 (8th Cir.

BOI back sieecantsinsccivisaincsattsoosniccciasatebitereteniaiicnakaciial A-l

B. District Court Order and Memorandum, June

GIT aaisesivntniccrsenvisinctsisessviiciitnsiitiatagiilatiasiiadmedbabins A-5

C. District Court Order Denying Re-Considera-

tion, August ©, 1979 .......c..rsccccccosorsssscserscserscensceeeeers A-18

D. District Court Order, August 28, 1979 .........0++ A-19

E. Notice of Appeal, September 4, 1979 ............:++ A-20

F. Eighth Circuit Order. Dated May 8, 1980........... A-22

G. Second Amended Complaint. Filed October 17,

WED swiicssiinssninotasesisicireasievonnessinnsicatawensachsnatianesiteinetion A-23

— vi —

AUTHORITIES WHICH THE CASE INVOLVES

Constitution of the United States, Amendment Fourteen 7

I ii ooieckccsiccssssanctovemtored i, ii, 4, 5, 6, 7, 8, 9

MN, WOU cic ccicessssiscabssaicccsnnenveschec heed, ee 4

i i a Po, 2

se A RETR RN cs PN 8

PD UE ne 5

MY TO ei ak em 6

We RU FRIIOY icons ssecscosicccrronsdeubtoccemmeune 9

Monell v. Department of Social Service of City of New

York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed2d 611 (1978)

i, 6, 8, 11

Owens v. City of Independence, Missouri, 560 F.2d 925

(8th Cir. 1977); On remand 589 F.2d 335 (8th Cir.

Tn MONIS “shcesings Shae 79-1779 (April 16, 1980) 6, 11

Gomez v. Toledo, .0......cccccccccceess Gee ees 79-5601

I SS NI els oc acconpenasribiehsan babbsadasbocaplimbnatamitiog 8

Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598,

OF RP IE CRT E cases ccsonconssisaiteresisciccecrildehess ccdessana 11

Screws v. U.S., 325 U.S. 91, 65 S.Ct. 1031 §: . } Sareeeree 9

Sigler v. Lowrie, 404 F2d 659, (8th Cir. 1968) cert. denied

le Oe CBE) vce susesonsictisopasisasoseosarhaigsersiclllibace ait) ii, 8

Boyer v. Wisconsin, 345 F.Supp. 564 (E.D. Wisc. 1972)

ii, 8, 9

Leite v. City of Providence, 463 F.Supp. 585 (1978).......... 11

Gore v. Wochner, 475 F. Supp. 274 (E.D. Mo. 1979) 2, 5, 8

Tyler v. Whitehead, 583 SW 2d 240 (Mo. App. 1979) .... i, 7

Shapiro v. Columbia Union National Bank & Trust

Company, 476 S.W. 2d 310 (Mo. Banc, 1978) .......sss00 ii

No.

_>

IN THE

Supreme Court of the United States

—>_

———— TERM, 1980

~—_-

State of Missouri ex rel.

Minnie. E. T. Gore, and ©

Jennye Robinson,

Petitioners

vs,

R. Dean Wochner, M.D., et al

Respondents

Oe

On Writ of Certiorari to the

United States Court of Appeals

for the Eight Circuit

—_>

PETITION FOR WRIT OF CERTIORARI

aaa

MINNIE E. T. GORE and JENNYE ROBINSON, the Peti-

tioners heréin, pray that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for the

Eighth Circuit, rendered in the above-captioned case on April

15, 1979. Appellants’ Motion for Rehearing En Banc was denied

on May 8th, 1980.

OPINIONS BELOW

The opinions of the United States Court of Appeals for the

Eighth Circuit is reported at 620 F2d 183, The opinion is

sym

printed in the Appendix (A) hereto, filed on April 15, 1980.

The opinion of the United States District Court of the Eastern

District of Missouri is reported at 475 F. Supp. 274. The

opinion is printed in the Appendix (B) hereto, filed June 29,

1979.

JURISDICTION

The judgment of the United States Court of Appeals for the

Eighth Circuit was eutered on April 15, 1980. (See Appendix

A.) A timely Motion for Rehearing was denied on May 8th,

1980. (See Appendix F.) The jurisdiction of this Honorable

Court is invoked under 28 U.S.C. §2101 c.

STATUTE INVOLVED

42 U.S.C. §1983. Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance,

regulation, custom or usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party injured in any

action at law, suit in equity, or other proper proceeding for

for redress.

RS. § 1979

STATEMENT OF THE CASE

Petitioners, Minnie E. T. Gore, former Director of the Muni-

cipal School of Nursing of the City of St. Louis, and Jennye

Robinson, former staff instructor at said School, were tenured

civil service employees in June, 1973. On June 25, 1973, R. D.

Wochner, Director of the Department of Health and Hospitals

and petitioners’ “appointing authority” within the framework

of the Civil Service structure of the defendant City of St.

Louis, dismissed both employees for alleged misconduct,

improprieties, and incompetency with respect to both their

aE

qualifications and the performance of duties within their em-

ployment. A timely appeal was pursued before the Civil Serv-

ice Commission of the City of St. Louis.

Petitioners were afforded an adversary hearing before a three

member panel known as the Civil Service Commission. Peti-

tioners were represented by an attorney of their choice and

petitioners’ “appointing authority”, Dr. R. D. Wochner, was

represented by a City Counselor of the defendant City of St.

Louis. Extensive hearings lasting two (2) years were held and,

in an unanimous opinion, the Civil Service Commissioners, in

their capacity as the triers of fact, upheld petitioners’ dismissal

and ratified the position of their appointing authority, Dr. R.

D. Wochner. Prior to the decision, but after the case had been

submitted to the Commission for decision and unbeknown to

petitioners; secret meetings were held between Dr. Wochner

and the chairman of the Civil Service Commission, one Charles

Marino. As Chairman of the Commission Mr. Marino, though

not a lawyer, had acted in a capacity analogous to that of a

law judge. As a result of the secret meetings and prior to a

formal vote of decision by the full commission, Dr. Wochner

orally offered to Marino a position entitled, “Executive Assist-

ant to the Director of Health and Hospitals.” Dr. Wochner was

then the “Director of the Department of Health and Hospitals”

and acceptance of the position made Marino the doctor's exec-

utive assistant. This offer occurred prior to October 14, 1975,

the day on which the full commission voted on the case previ-

ously submitted to it. The Commission’s decision unanimously

against the petitioners was published on October 17, 1975.

The position, as offered by Dr. Wochner, was not within the

organizational structure of the Department of Health and Hos-

pitals of said defendant municipality as required by the Civil

Service Regulations and the City Charter. On October 20, 1975,

petitioners learned of the Commission’s unanimous ruling and

the fact that Charles Marino had begun his employment in the

Department of Health and Hospitals. His employment con-

tinued for two (2) years in said capacity.

pe” Yi

Petitioners filed suit on March 22, 1977, alledging that a

bribe had occurred between defendants Wochner and Marino

in violation of their civil rights under 42 U.S.C. §1983 and 28

U.S.C, §1343 and prayed judgment for actual, special, and

punitive damages, job reinstatement, attorney’s fees, and costs.

On June 9, 1978 petitioners filed their first amended complaint

in three counts naming additional party defendants, including

the City of St. Louis. Count One reiterated the alleged bribe

between Wochner and Marino; Count Two was against the

performance bond carrier of each defendant for their act of

oppression in office; and Count Three was against the munici-

pal corporation, City of St. Louis, for alleged misfeasance, mal-

feasance, and nonfeasance of various department heads in their

respective treatment of petitioners as their activities touched

and effected the Civil Service Appeal of petitioners and their

knowledge of the improprieties of defendants Wochner and

Marino which petitioners alledge ripened into.an unconstitu-

tional “custom and practice” of said municipal corporation.

After a Motion for Summary Judgment was granted as to

the performance bond carrier and a Motion to Dismiss was

was sustained as to the City of St. Louis, the trial court

granted the remaining defendants’ Motion For a Mistrial as to

whether Plaintiffs’ damages were proximately caused by the

acts of the defendants; this occurred after 31% days of trial on

August 11, 1978. On October 17, 1978, petitioners lodged their

Second Amended Complaint in ten counts and, on November

22, 1978, the trial Court granted leave to amend. The Second

Amended Complaint is attached at Appendix G.

Beginning with the alledged arbitrary and capricious termi-

nation by the defendant Dr. Wochner, petitioners alledge that

each party-defendant, all of whom were either department

heads within the structure of the municipal corporation of De-

fendant City of St. Louis or one of its elected officials, had

pe ys

knowledge of the progress of petitioners’ appeal as it wound

its way through the appellate process. Further, they did wil-

fully and intentionally fail or refuse to perform their respective

specific duties, which were mandatorily imposed by law under

applicable charter and/or ordinance provisions, directly and

proximately causing petitioners to lose their federally protected

rights under color of state law.

As tenured employees within the civil service of said muni-

cipal corporation, petitioners were afforded the protection of

an elaborate statutory scheme of state statutes, city charter,

ordinances, Civil Service rules, and regulations to guarantee

their due process rights if a dispute arose concerning their em-

ployment. Petitioners’ ten count complaint alledges the re-

spective malfeasance, misfeasance, and nonfeasance of each

party-defendant as their individual duties touched and effected

petitioners’ appeal and the corsupt bargain which was effecu-

ated against them by. both Wochner and Marino. Further,

petitioners contend that the knowing acquiesence in said cor-

rupt bargain by the respective interrelated department heads

constituted an unconstitutional policy, custom, practice, and

procedure of the City of St. Louis.

The Trial Court dismissed nine of ten counts of petitioners’

Second Amended Complaint. See 475 F. Supp. 274 (App. B),

Counts I-IV, VI-X were dismissed for failing to state a claim

under 42 U.S.C. $1983 as to several counts and a statute of lim-

itations bar as to others under Missouri’s applicable law. A

timely Rule 54(b) F.R.C.P. request was made and granted. See

(App. D.) The petitioners abandoned all allegation of error as to -

Count IX on appeal and the respondent admitted the specious-

ness of the Statute of Limitation issue before the Eighth Cir-

cuit Court of Appeals,

-— > —

REASONS FOR GRANTING THE WRIT

This matter is before this Honorable Court on the question

of whether petitioners have properly plead a cause of action in

eight counts pursuant to 42 U.S.C. §1983. A Rule 54(b)

F.R.C.P. request was certified by the trial court and the instant

appeal ensued. See (App. D.) The Eighth Circuit Court of Ap-

peals adopted the trial court’s opinion that, even though peti-

tioners had properly plead specific federally protected rights;

alleged malfeasance, misfeasance, or nonfeasance by the vari-

ous interrelated department heads within a municipal corpora-

tion as their statutorily mandated duties touched and effected

petitioners’ rights; said pleading failed to state a cause of action

under 42 U.S.C. §1983. "etitioners feel that the Eighth Circuit

Court of Appeals has taken an unduly restrictive view of the

procedural reality which confronted petitioners and this Hon-

orable Court’s decision in both Monell' and Owens*. The

Eighth Circuit Court of Appeals determined that alledged

widespread violations of a statutory scheme of state and local

laws, enacted to structure and define procedural rights of ag-

grieved individuals before an administrative hearing tribunal

to permit said aggrieved parties to secure protection for their

federally protected rights, did not state a cause of action. This

leaves petitioners without a forum in which to adjudicate their

federal constitutional rights. This is especially true when the

statutory scheme in question was specifically enacted to insure

and guarantee tenured civil servants certain rights found by

the trial court to be federally protected.

* Monell v. Department of Social Services of City of New York,

436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed2d 611 (1978)

*Owens v. City of Independence, Missouri, 560 F2d 925 (8th

Cir. 1977) on remand, 598 F2d 335 (8th Cir. 1979), —--———

U.S._——_——— 78-1779 (April 16, 1980)

ok, Vee

However viewed, the holding of the Court below is consid-.

erably more restrictive in its interpretation of §1983 than Mis-

souri courts. In Tyler v. Whitehead, 583 S.W. 2d 240 (Mo. App.

1979), the Kansas City Court of Appeal reversed the dismissal

of a complaint on the grounds that the pleading before the

court did state a cause of action under §1983 from a narrow,

but critical, complaint which attacked how a county sheriff

exercised his discretion in assigning prisoners their place within

the confines an an antiquated jail.

Petitioners’ position can not be understood without refer-

ing this Honorable Court to Count V still pending before

the district court. There, petitioners allege that a corrupt

bargain was entered into by a department head of a municipal

corporation and the chairman of the Civil Service Commission

of said corporation, the intent and purpose of which was to

adversely rule against petitioners’ then pending appeal for re-

instatement to their former positions within the department in

question. Struck sua sponta by the district court was paragraph

16 of Count V which stated that throughout the appellate

process, the City Counselor’s Office of the defendant municipal

corporation had provided gratuitous legal services for both the

department head and the commissioner involved in the

corrupt bargain; and, by virtue of said relationship, the City

Counselor was in a position to observe the bribe and its rip-

pling effect within the corporate structure and its officers.

The Court of Appeals decision adopts in toto the position

taken by the district court that, while petitioners have properly

plead a federally protected property right in *heir continued

employment and a liberty interest in the safeguarding their

reputation, honor, and integrity so as to warrant the protection

of the due process clause of the 14th Amendment of the United

States Constitution in the termination of their employment; the

alleged violations of statutorily mandated duties by interre-

oe yea

lated department heads as they touched and effected petition-

ers’ procedural rights during petitioners’ attempt to vindicate

those rights, does not rise to the level of a constitutional protec-

tion. Compare Appendix A with App. B or 620 F 2d 183 (8th

Cir., 1980) with 475 F. Supp.274(E.D. Mo. 1979). Petition-

ers feel such a view separates the reality of the interrelation-

ship of duties imposed upon officeholders by the defendant

municipal corporation’s own laws from the clearly found and

articulated federal protection of petitioners’ constitutional

rights.

It is universally recognized that §1983 suits are expressly de-

signed to provide “...a broad remedy for the violation of

federally protected rights...” Monell 436 U.S. at 685, 98 S.

Ct. at 2033. Pleadings are to be afforded liberal construction

mandated by Rule 8(a) F.R.C.P. and, when confronted with

a motion to dismiss under Rule 12(b) (6) F.R.C.P., the court

must assume as true the allegations of facts contained therein

and any reasonable inferences to be drawn from said facts.

See Gomez v. Toledo, ——— US ——-——— 79-5601 (May

27, 1980).

Petitioners feel that the Eighth Circuit has erroneously relied

on Sigler v. Lowrie, 404 F. 2d 659 (8th Cir.1968) cert. denied

395 U.S. 940 (1969) and Boyer v. Wisconsin, 345 F. Supp. 564

(E. D. Wisc. 1972) since both cases are premised on a finding

that no federally protected right was, in fact, encroached upon.

In the instant case, petitioners’ federally protected rights were

specifically held to have been properly plead by the district

court. Yet, pleading wholesale violations of state laws which

touch and effect the process enacted to administratively

preserve and promote those same federally protected rights are

held not actionable under 42 U.S.C. §1983 by the Eighth Cir-

cuit Court of Appeals. Such a holding belies the procedural

reality of the administrative appellate process in which peti-

re ye

tioners’ were confronted and were by state law required to

follow.

On the one hand, the Eighth Circuit states that “a violation

of state law that results in an infringement of a federally pro-

tected rights is actionable,” under $1983 citing Boyer v. Wis-

consin, supra, and Screws v. U.S., 325 U.S. 91, 65 S. Ct. 1031

(1945); but then went on to hold that violations of state law

occurring during the administrative appeals process adjudicat-

ing petitioners’ admitted federally protected rights do not rise

to the level of a federal violation. Petitioners are at a loss to

discern the difference between a state law violation that in-

fringes upon a federally protected right and a state law viola-

tion that infringes a federally protected right, which doesn’t

rise to the level of a federal violation.

Pivotal to petitioners pleadings before this Honorable Court

is the appreciation of reasonable inferences raised by Count V.

Petitioners allege that a bribe occurred between a depart-

ment head and a civil service commissioner of defendant city,

the avowed purpose of which was to contravene petitioners’

federally protected rights. The said bribe occurred under the

scrutiny of the defendant city’s attorney, the city counselor.

After publication of both his resignation as a commissioner to

accept this unauthorized position and his decision affecting

petitioners’ appeal, knowledge of this activity filters through-

out various levels of responsibility without anyone moving to

correct the abuse, especially the city counselor, see Rule 4.

om 10) "an

DR 7-102, (A) 6-8and (B) 1 and 2 (S.C.Mo.1980) *. A course

of conduct by all departments within the executive branch of

the municipal corporation, which ratifies or obscures the con-

stitutionally impermissive conduct, ensues. Petitioners allege

that the city counselor's role constitutes actual knowledge as

the statutory agent for the corporate principal.

The acts complained of in the eight counts in question were

at such a variance from established procedures that ministerial

functions normally handled by second level functionaries were

curiously omitted or tolerated by all departments over a two

year period without question. The only reasonable inference to

® DR 7-102. Representing a Client Within the Bound of the

Law.

(A) In his representation of a client, a lawyer shall not:

6. Participate in the creation or preservation of evidence

when he knows or it is obvious that the evidence is

false..

7. Counsel or assist his client in conduct that the lawyei

knows to be illegal or fraudulent.

8. Knowingly engage in other illegal conduct or conduct

contrary to a Disciplinary Rule.

(B) A Lawyer who receives information clearly establish-

that:

1. His client has, in the course of the representation, per-

petrated a fraud upon a person or tribunal shall

promptly call upon his client to rectify the same, and

if his client refuses or is unable to do so, he shall reveal

the fraud to the affected person or tribunal.

2. A person other than his client has perpetrated a fraud

upon a tribunal shall promptly reveal the fraud to the

tribunal.

-1ll-

be drawn from that tolerance or omission is that it was done

deliberately, with approval of the various department heads,

in direct contravention of petitioners’ employment rights or in

support of the oppression in office as alleges. Yet the Eighth

Circuit Court of Appeals states:

“.,. that the violation of any rights that might arise ex-

clusively by failure to comply with some of the procedures

provided by city charter, ordinances, and regulations

thereunder, do not rise to the level of a federal constitu-

tional violation.”

Finally, petitioners feel that the Eighth Circuit Court of

Appeals has erroneously interpreted Monell, supra, and Owens

v. City of Independence, supra. Assume in aguendo, which

petitioners do not, that individual acts alleged were properly

held not to have stated a cause of action against the various

officeholders in question; what collective responsibility does

the corporate entity, City of St. Louis, have as a result of the

various acts of oppression in office visited upon petitioners

during the administrative appellate process. Certainly respond-

eat superior has no relevance in a discussion about the knowing

acquiesence by members of the executive branch of a munici-

pal corporation in a bribe. Do not the individual acts of all the

party-defendants, which contributed to the totality of petition-

ers’ problem, constitute the corporation’s modus operendi in

their treatment of the petitioners. Does not the city counselor’s

role provide the implicit authorization, approval, and acqui-

escence found wanting in Rizzo v. Godde, 423 U.S. 362, 96

S.Ct. 598, 46 L.Ed.2 561 (1976). See also Leite v, City of

Providence, 463 F.Supp. 585 (1978).

As set forth last term by this Honorable Court in Owens v.

City of Independence: —-——— U.S, ——---—— (April 16, 1980)

100 S.Ct. 1398, 1410 (1980):

~~

“There is nothing in the character of a municipal cor-

poration which entitles it to an immunity from liability for

such malfeasances as private corporations or individuals

would be liable for in a civil action. A municipal corpora-

tion is liable to the same extent as an individual for any

act done by the express authority of the corporation, or of

a branch of its government, empowered to act for it upon

the subject to which the particular act relates, and for any

act which, after it has been done, has been lawfully rati-

fied by the corporation.” T. Shearman & A. Redfield, A

Treatisie on the Law of Negligence $120, at 139 (1869)

hereinafter Shearman & Redfield).

Accord, 2 Dillian $764, at 875 (“But as respects muni-

cipal corporation proper,... it is, we think, universally

considered, even in the absence of statute giving the ac-

tion, that they are liable for acts of misfeasance positively

injurious to individuals done by their authorized agents or

officers, in the course of the performance of corporate

powers constitutionally conferred, or in the execution of

corporate duties.”) (emphasis in original), See 18 E.

McQuillin, Municipal Corporations §53.02 (3d rev. ed.

1977) (hereinafter McQuillin). Under this general theory

of liability, a municipality was deemed responsible for any

private losses generated through a wide variety of its

operations and functions, from personal injuries due to its

defective sewers, thoroughfares, and public utilities, to

property damage caused by its trespasses and uncompen-

sated takings.

= pe

CONCLUSION

The interpretation of 42 U.S.C. §1983 in light of Monell and

the oblique view of the procedural reality confronting peti-

tioners in the administrative appellate process as outlined sug-

gests the Eighth Circuit Court of Appeals has little understand-

ing of the interrelated function of various departments in a

municipal corporation. To allow the Eighth Circuit Court of

Appeals to erroneously apply both Sigler, supra, and Boyer,

supra, is to allow that Court to judicially determine not only

what state law violations infringe a federally protected right,

but also to determine when that infringement rise to the level

of a federal constitutional violation sufficient to give a federal

forum for vindication (pleaders emphasis ).

Petitioners request this Honorable Court to review the issues

highlighted heretofore to correct a manifestly erroneous

application of law and provide some guidelines for the district

court concerning the municipality’s tort liabiliay in the instant

case.

Respectfully submitted,

STEPHEN J. NANGLE

#7 North Brentwood

Suite Cl

Clayton, Missouri 63105

(314) 725 4114

BARBARA C. NANGLE

#7 North Brentwood

Suite Cl

Clayton, Missouri 63105

(314) 725 4114

JOHN J. RELLES

Co-Counsel

1108 Olive Street

St. Louis, Missouri 63141

(314) 421-4242

ey ke

(Appendix “A”)

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 79-1759

STATE OF MISSOURI, EX REL.

MINNIE E. T. GORE, JENNYE ROBINSON,

Appellants,

Vv.

R. DEAN WOCHNER, M.D., ET AL.,

Appellees.

Appeal from the United States District Court for the

Eastern District of Missouri

Submitted: March 13, 1980

Filed: April 15,1980

Before BRIGHT, ROSS and ARNOLD, Circuit Judges.

ROSS, Circuit Judge.

Appellants Minnie Gore, former Director of the Municipal

School of Nursing, and Jennye Robinson, a former staff in-

structor at the school, allege violations of their civil rights

under 42 U.S.C. § 1983 resulting from the termination of their

employment with the Department of Health and Hospitals of

the City of St. Louis. In the district court,: appellees moved

to dismiss appeallants’ second amended complaint on the basis

that it failed to state a cause of action and that the statute of

1 The Honorable Edward L. Filippine, United States District

Judge for the Eastern District of Missouri.

ps ae

limitations had run as to some defendants. The district court

granted the motion as to Counts I through IV, and Counts

VI through X and directed that the dismissal of these counts

be entered as a final judgment pursuant to Rule 54(b) of the

Federal Rules of Civil Procedure. Appellants now w appeal this

dismissal. We affirm.

Count I of the second amended complaint basically chal-

lenges the truthfulness of charges levied against appellants by

Wochner as reasons for their dismissal. Additionally Count I

alleges that the former Mayor of St. Louis, by acts of omission,

permitted Wochner’s conduct in making these malicious

charges to exist. Counts II, III, IV, VI, VII, VIII and X allege

various failures of city officials to perform their required duties

resulting in appellants’ failure to keep or recover their jobs

and their failure to be vindicated. Count IX alleges failure

of officials to require city appointees to post a bond as al-

legedly required by state statute. Appellants abandoned any

claim of error in their brief and at oral argument with respect

to the district court’s ruling in Count IX. Appellants alleged

in Count V that their appointing authority, Director R. Dean

Wochner, induced appellee Charles Marino to uphold the

firing of appellants in their appeal to the Civil Service Com-

mission of which Merino was Commissioner. Appellee Woch-

ner allegedly did so by promising Marino a position as Woch-

ner’s assistant. Count V was not dismissed by the district

court.

In order for appellants to bring a claim under 42 U.S.C.

§ 1983, a specific and articulable constitutional right must have

been transgressed and a cognizable claim for relief must be

stated on the face of the pleading. Landrum v. Moats, 576

F.2d 1320, 1324 (8th Cir.), cert. denied, 439 U.S. 912 (1978).

Rights which derive solely from state law, however, cannot

be the subject of a claim for relief under 42 U.S.C. § 1983,

a

Sigler v. Lowrie, 404 F.2d 659, 662 (8th Cir.), cert. denied,

395 U.S. 940 (1969). Only when a violation of state law re-

sults in an infringement of a federally protected right can a

cause of action be said to exist. Boyer v. Wisconsin, 345 F.

Supp. 564 (E.D. Wis. 1972). See Screws v. United States,

325 U.S. 91, 108, 65 S.Ct. 1031 (1945). “A violation of a

federal constitutional provision must be shown.” Ortega Ca-

brera v. Municipality of Bayamon, 562 F.2d 91, 102 (1st Cir.

1977).

The district court found that appellants had sufficiently

pleaded a property interest in continued employment and a

liberty interest in the safeguarding of their reputation, honor

and integrity so as to warrant the protection of due process of

law, as provided by the fourteenth amendment, in their ter-

mination from employment. See Churchwell v. United States,

545 F.2d 59, 62 (8th Cir. 1976); Ampleman v. Schlesinger,

534 F.2d 825, 827-28 (8th Cir. 1976). This protection, the

court determined, affords appellants notice of the charges, a

hearing on the merits before an impartial body, a chance to

be represented and confronted with witnesses, and a decision

based on some substantial evidence, citing Buggs v. City of

Minneapolis, 358 F.Supp. 1340, 1344 (D.C. Minn. 1973). The

Supreme Court has stated that “where a person’s good name,

reputation, honor or integrity is at stake ° ° ° notice and an

opportunity to be heard are essential.” Board of Regents v.

Roth, 408 U.S. 564, 573 (1972).

As appellants had notice and a hearing before the Civil

Service Commission, which hearing consisted of 18 sessions

from 1973-1975, the district court correctly concluded that

appellants did not seek redress for any federally protected

right. We agree with the conclusion of the court that the

violation of any rights that might arise exclusively by failure

to comply with some of the procedures provided by city

ia Mal

charter, ordinances and regulations thereunder, do not rise

to the level of a federal constitutional violation.

We therefore affirm the decision of the district court as to

the dismissal of Counts II through IV, Counts VI through

VHI, and Count X on the basis that none of the dismissed

counts state an issue of constitutional dimension to enable a

claim to be stated under 42 U.S.C. § 1983. We further believe

that for the same lack of alleged constitutional violation, the

district court correctly dismissed Count I. Count IX has been

abandoned on appeal. The only apparent count which, if it

could be proved, might present a claim under section 1983

is the bribery charge of Count V. We must remark, however,

that we fail to understand why this count was singled out and

this appeal permitted to reach this court in such a piece-meal

fashion. It would have been preferable for the trial court to

require the trial of Count V rather than certifying the appeal

under Rule 54(b) of the Federal Rules of Civil Procedure.

The judgment of the trial court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.

i

(Appendix “B”)

United States District Court, Eastern District of Missouri

Eastern Division

STATE OF MISSOURI, ex rel.,

MINNIE E. T. GORE, and JENNYE ROBINSON,

Plaintiffs,

V.

R. DEAN WOCHNER, M.D., et al.,

Defendants.

No. 77-305 C (4)

ORDER

This matter is before the Court on the motion of defendants

to dismiss. After consideration of the matter, and in accord-

ance with the Memorandum filed this date and incorporated

herein,

IT IS HEREBY ORERED that defendants’ motion be and

is GRANTED.

IT IS FURTHER ORDERED that Counts I, II, III, IV, VI,

VII, VIII, IX, and X be and are DISMISSED as to all de-

fendants therein named.

Dated this 29th day of June, 1979.

EDWARD L. FILIPPINE,

United States District Judge

x 7

United States District Court, Eastern District of Missouri

Eastern Division

STATE OF MISSOURI, ex rel.,

MINNIE E. T. GORE, and JENNYE ROBINSON,

Plaintiffs,

Vv.

R. DEAN WOCHNER, M.D., et al.,

Defendants.

No. 77-305 C (4)

MEMORANDUM

This matter is before the Court on the motion of defendants

to dismiss plaintiffs’ Second Amended Complaint. Defendants

claim that the complaint, brought pursuant to 42 U.S.C.

§ 1983, fails to state a cause of action against certain of the

defendants, and that the statute of limitations has run as to

others. After careful consideration of the matter, it is the

opinion of the Court that defendants’ motion must be granteu.

On June 25, 1973, plaintiffs Gore and Robinson were dis-

missed from their positions as Director of the Municipal

School of Nursing and as a staff teaching nurse at that school

by defendant R. Dean Wochner, Director of Health and Hos-

pitals for the City of St. Louis. Plaintiffs were informed of

their right to appeal Wochner’s actions to the Civil Service

Commission of the City of St. Louis, and on October 5, 1973,

hearings were commenced on plaintiffs’ appeals.

A decision upholding defendant Wochner’s actions was

rendered by the Commission on October 14, 1975. On Octo-

ber 20, 1975, defendant Char'es Marino, a Civil Service Com-

me me ees

missioner at the time the decision was rendered, accepted a

position with the City of St. Louis as an assistant to R. Dean |

Wochner.

Plaintiffs first filed their 42 U.S.C. § 1983 action against

defendants Wochner, Marino, Duffe, and the John Doe In-

surance Company on March 22, 1977. A first amended com-

plaint was filed on June 9, 1978, and named as defendants

were Wochner, Marino, Reliance Insurance Company, the City

of St. Louis, Mayor Conway, Comptroller Percich, and Paul

Simon, president of the St. Louis Board of Aldermen. As

indicated by the record before the Court, a second amended

complaint was brought to this Court for leave to file on Octo-

ber 17, 1978, and was actually filed after said leave was granted

on November 22, 1978. For purposes of this motion, the

Court will consider the second amended complaint as having

been filed on October 17, 1978. The second amended com-

plaint names as defendants those persons hereinafter discussed

in light of defendants’ motion to dismiss.

In the case at bar, the central allegation is that defendant

Wochner induced defendant Marino to uphold his firing of

the plaintiffs in the appeal to the Civil Service Commission

by promising Marino a position as his (Wochner’s) assistant.

Plaintiffs further allege in Counts II, III, IV, VI, VII, VIII

and X various failures of city officials to perform their duties,

all of which are alleged to have denied plaintiffs due process

of law. Plaintiffs also claim that if the city officials had done

their jobs, then the irregularity of the hiring of defendant

Marino by defendant Wochner would have been discovered,

and plaintiffs vindicated.

42 U.S.C. § 1983 authorizes a civil suit for damages for

violation of rights secured by the United States Constitution

and laws. Rights which derive solely from state law, however,

core WH

cannot be the subject of a claim for relief under 42 U.S.C.

§ 1983. Sigler v. Lowrie, 404 F.2d 659, cert. den. 395 U.S.

940 (8th Cir. 1968); Papish v. Board of Curators of the Uni-

versity of Missouri, 331 F.Supp. 1321 (W.D.Mo. 1971), affd.

464 F.2d 136; rev'd. on other grounds 410 U.S. 667, reh’g. den.

411 U.S. 960; Parkway Bank & Trust Co. v. City of Darien,

43 ll. App.3d 400, 357 N.E.2d 211 (Ill.App. 1976). It is only

when a violation of state law results in an infringement of a

federally protected right that a cause of action may be said to

exist. Boyer v. State of Wisconsin, 345 F.Supp. 564 (E.D.

Wisc. 1972).

Plaintiffs have sufficiently pleaded, for the purpose of this

motion, a property interest in continued employment and a

liberty interest in the safeguarding of their reputation, honor,

and integrity so as to warrant the protection of due process

of law, as provided by the Fourteenth Amendment, in their

termination from employment. See Churchwell v. United

States, 545 F.2d 59 (8th Cir. 1976); Ampleman v. Schlesinger,

534 F.2d 825 (8th Cir. 1976); Williams v. Jones, 562 S.W.2d

391 (Mo. App. 1978). The due process clause may thus be

invoked to protect plaintiffs as public employees from an im-

proper manner of discharge. Birnbaum v. Trussel, 371 F.2d

672 (2d Cir. 1966).

The protection afforded by the Fourteenth Amendment due

process clause requires that, where injury to reputation is at

stake, the discharged employee be granted a hearing that

provides the employee with an opportunity to clear his good

name. Vorbeck v. McNeal, 560 S.W.2d 245 (Mo.App. 1977).

See also Board of Regents v. Roth, 408 U.S. 564 (1972). Where

the suspension or termination is based on allegations of mis-

conduct, due process requires that there be notice of the

charges, a hearing on the merits before an impartial person

or body, a chance tc be represented and confronted with wit-

ii he

nesses, and a decision based on some substantial evidence.

Buggs v. City of Minneapolis, 358 F.Supp. 1340 (D.C.Minn.

1973). See also Dennis v. S & S Consolidated Rural High

School District, 577 F.2d 338 (5th Cir. 1978).

The allegations that plaintiffs make regarding the failure of

defendant Scearce to conduct an investigation of the charges

made against the plaintiffs prior to the commencement of the

Civil Service Commission hearings; the failure of defendant

Civil Service Commissioners Gould, Cummings, Essex and

Marino, the Department of Personnel, the Civil Service Com-

mission, and the City of St. Louis to require Scearce to make

the investigation prior to the hearings, or to halt the hearings

until he did so; the failure of defendant Comptroller Bass to

make defendant Scearce file a complete audit, and to make an

inquiry into why there was a change in plaintiffs’ status; the

claim that defendant Scearce allowed defendant Marino's name

as being properly on the city payroll all stem from an alleged

failure to follow procedures established by the Charter of the

City of St. Louis and ordinances and regulations promulgated

thereunder. Even assuming that these procedures were set up

to afford protection to the plaintiffs as municipal employees,

any so called rights derived therefrom arise by virtue of state

(municipal ) law.

As previously noted, rights created by state law are not prop-

erly the subject of a claim brought pursuant to 42 U.S.C. §1983,

unless the violation of those rights also infringes upon some

federally protected rights. It is the opinion of the Court that

the alleged violations of any rights that might arise exclusively

by virtue of the procedures provided by city charter, ordi-

nances and regulations thereunder for failure to comply with

said procedures do not rise to the level of a federal Constitu-

tional violation. Due process for employees in the position

pleaded by plaintiffs, as already noted, requires only notice and

— A-10—

a hearing before an impartial body or person; it does not

require strict adherence to the City’s statutory scheme as

argued by plaintiffs. The Court, therefore, finds that plaintiffs

are not seeking redress for any federally protected right as

regards Counts II, III, IV, VII and VIII, and that these counts

therefore fail to state a claim pursuant to 42 U.S.C. $1983.

Accordingly, Counts II, III, IV, VI, VII and VIII will be dis-

missed as to all defendants therein named.

Additionally, it is the opinion of the Court that several counts

of plaintiffs’ second amended complaint must be dismissed as

being barred by the statute of limitations, or for failure to state

a claim on grounds other than those just discussed.

Because 42 U.S.C. §1983 does not contain its own period of

limitation, the Court must apply the most appropriate limita-

tions period provided by state law. Johnson v. Railway Ex-

press Agency, 421 U.S. 454 (1975). The choice of which statute

to apply “ultimately rests upon a determination of which

statute will best effectuate the congressional policies underly-

ing the federal claims.” Green v. Ten Eyck, 572 F.2d 1233,

1239 (8th Cir. 1978).

As the Court set out earlier in this Memorandum, the under-

lying claim is that plaintiffs were denied a fair hearing before

an impartial body by virtue of the alleged bribe between de-

fendants Wochner and Marino. Plaintiffs also charge in various

counts that this was possible because other public officials, the

Civil Service Commission, the Department of Personnel, and

the City of St. Louis discharged their duties in an unlawful

manner, or unlawfully failed to discharge their duties. Addi-

tionally, it is charged that this failure to strictly adhere to the

procedures established by city charter, ordinances and regula-

tions was a custom and policy of the City of St. Louis.

— A-ll —

It is the opinion of the Court that the Missouri statute of lim-

itations which deals expressly with actions against a public

officer for a “liability incurred by the doing of an act in his

official capacity and in virtue of his office, or by the omission of

an official duty .. .” is the statute that would best effectuate the

congressional policies underlying plaintiffs’ claim. Mo. Rev.

Stat. (1969) §516.130(1). In accordance with decisions pre-

viously rendered in this district and circuit, the Court finds that

this three year statute of limitations is most directly applicable

to the issues at bar. See Green v. Ten Eyck, supra; Peterson v.

Fink, 515 F.2d 815 (8th Cir. 1975); and Tyler v. Ryan, 419

F.Supp. 905 (E.D.Mo. 1976). Accordingly, the three year peri-

od set forth in Mo. Rev. Stat. §516.130(1) will be controlling.

Plaintiffs allege in Count I of their second amended com-

plaint that defendant Wochner lodged false, malicious, and

frivolous charges against the plaintiffs on June 25, 1973. Plain-

tiffs further claim that defendant Mayor Poelker knew of

Wochner’s acts and did not intercede to prevent his “constitu-

tionally deprivacious” conduct. —

Because the claim asserted in Count I of the second amended

complaint arose out of the occurrence set forth in the original

complaint filed on March 22, 1977, this new claim relates back

to the date of filing of the original complaint as it concerns

defendant Wochner. Fed.R.Civ.P. 15(c). Because the es-

sence of Count I is a challege to the truthfulness of the charges

levied against plaintiffs, the three year statute of limitations

began to run as of the date those charges were filed. There-

fore, even after adopting March 22, 1977, as the appropriate

tolling date, this challenge to the charges brought against plain-

tiffs was filed more than three -years after the cause of action

arose. Accordingly, plaintiffs’ complaint against defendant

Wochner on this claim is barred.

— A-12 —

Plaintiffs’ allegations that defendant Poelker should have

interceded to halt defendant Wochner’s actions are likewise

barred. Count I is merely a new claim asserted by plaintiffs.

Assuming that Mayor Poelker could have interceded at any

time after the charges were leveled, the limitations period

began to run after June 25, 1973. Accordingly, this suit having

been filed on October 17, 1978, it is clear that this action

against Mayor Poelker was not timely filed.

Count II of plaintiffs’ second amended complaint contains

allegations that defendant Scearce, the Director of Personnel,

failed to investigate the charges brought against the plaintiffs

prior to the Civil Service Commission hearings, as purportedly

required by Civil Service Rules. Plaintiffs claim that if Scearce

had investigated, he would have found the charges false. Plain-

tiffs would have thus been continued on salary, and the burden

of the appeal would have fallen on defendant Wochner. Con-

struing the allegations in a manner most favorable to plaintiffs,

this Court assumes without deciding that defendant Scearce

could have conducted the investigation as at any time prior to

the rendering of the Civil Service Commission decision on

October 14, 1975. The three year period of limitations, there-

fore, had run by the time this action was first filed against

defendant Scearce on October 17, 1978.

The plaintiffs further allege that the failure of defendant

Scearce to conduct this investigation was known by all defend-

ants named in this complaint; that Scearce had on “numerous

simifiar occasions” failed or refused to make obligatory inves-

tigations. Plaintiffs go on to claim that Scearce’s approach to

his duty was arbitrary and capricious, and that he was selec-

tive in the application of Civil Service Rules. Plaintiffs further

allege that this approach to Scearce’s position was considered

“usage, custom and policy of the City of St. Louis by and

through the Department of Personnel, its agents and employees

and the Civil Service Commission, its agents and employees.”

— A-13 —

For this allegation, plaintiffs seek special, actual, and punitive

damages against the Department of Personnel, the Civil Serv-

ice Commission, and the City of St. Louis.

It is the opinion of the Court that Count II cannot state a

cause of action against the Department of Personnel because

the Department is not a proper party defendant. The Depart-

ment of Personnel is an integral part of the City of St. Louis

government, and is merely the administrative arm whereby

employment functions are performed. The Department of Per-

sonnel lacks a legal identity apart from that of the City of St.

Louis, and as such is not a suable entity. See Simon v. St. Louis

County Police Department, 14 FEP 1363 (E.D.Mo. 1977).

Count II will therefore be dismissed as to the Department of

Personnel.

The allegation that the other defendants had knowledge of

and tacitly agreed to Scearce’s alleged failure to perform an

investigation prior to the commencement of hearings by the

Civil Service Commission on October 5, 1973, must also fail as

to all defendants except the City of St. Louis for not being

brought within the three year statute of limitations. The Civil

Service Commission was first brought into this action in the

second amended complaint filed on October 17, 1978, a period

of greater than three years. However, the City was first named

as a defendant, though subsequently dismissed out, in the first

amended complaint filed June 9, 1978. The time of filing this

charge against the City thus may properly relate back to that

June date, so that the action was commenced within a period

of three years. Accordingly, Count II must be dismissed as to

the Civil Service Commision, but will not be dismissed on these

grounds against the City of St. Louis.

Count III of plaintiffs’ second amended complaint alleges

that Civil Service Commissioners Gould and Cummings began

the appeals hearing before receiving, and without requiring,

—A-14—

defendant Scearce’s investigation of the charges brought

against the plaintiffs. Said hearings having begun on October

5, 1973, and this complaint having been filed on October 17,

1978, it is clear that the three year statute of limitations has

run. Count III will therefore be dismissed as to defendants

Gould and Cummings.

Count IV seeks damages from Civil Service Commissioners

Essex and Marino for not,halting the Civil Service Commission

hearings for lack of Scearce’s investigation. Count IV also con-

tains allegations that Essex and Marino are liable because they

knew of the negligent failure of defendants Gould and Cum-

mings to require Scearce to make his investigation.

Assuming that this charge would state a cause of action

against defendant Essex, the claim would be barred by the

statute of limitations. At the latest, the statute began running

on October 14, 1975, the date of the Civil Service Commission

decision. Suit having been filed against defendant Essex on

October 17, 1978, the action was filed after a period of greater

than three years, and thus is barred. The three year statute of

limitations, however, has not run as to defendant Marino be-

cause of the relation-back provision of Fed.R.Civ.P. 15(c).

Count VI alleges that defendant Bass, as Comptroller of the

City of St. Louis, failed to make defendant Scearce file a com-

plete audit or to make any reasonable inquiry into why there

was a change in plaintiffs’ status, Plaintiffs plead that the date

of Bass’s alleged negligent acts are August 1, 1973, as to plain-

tiff Robinson, and January 1, 1974, as to plaintiff Gore. Comp-

troller Bass having first been named as a defendant in plaintiffs’

lawsuit on October 17, 1978, this claim is barred by the three

year statute of limitations,

— A-15 —

Plaintiffs’ claims in Counts VII and VIII allege that defend-

ant Scearce allowed defendant Marino’s name to be placed on

the payroll certification, and that defendants Bass and Percich

as Comptrollers did not verify Marino’s name as being properly

on the payroll. Defendant Marino is alleged by plaintiffs to

have accepted his position with defendant Wochner on Octo-

ber 20, 1975. Accordingly, this claim was filed against defend-

ants Scearce, Bass, and Percich, within the three year limita-

tions, period and thus is not barred on these grounds.

Count IX charges that defendant Mayors Poelker and Con-

way failed to-require appointees to post a bond as required by

§73.470 R.S.Mo. 1969, Because this section of the Missouri

statutes was repealed in 1975, and Mayor Conway assumed

office in 1977, a cause of action cannot be said to exist as to

Mayor Conway. Nor can a cause of action be said to exist as

to Mayor Poelker for failure to require a bond from any officer

elected or appointed after 1975. This would include Comptrol-

ler Percich.

Eurthermore, the Court believes that §73.470 is not applica-

ble to constitutional charter cities such as the City of St. Louis.

See Leoffler v. Kansas City, Mo., 485 S.W.2d 633 (Mo.App.

1972). Plaintiffs have therefore failed to state a cause of action

and Count IX will be dismissed.

In Count X, plaintiffs seek injunctive and monetary relief for

their claim that all of the named defendants have refused, and

continue to refuse, to “correct, rectify, or change” the admin-

istration of charter and ordinance provisions cited in the afore-

mentioned counts, and that the refusal has been the custom and

policy of the City of St. Louis. By virtue of the previously

enumerated actions taken, or which should have been taken,

by the several public officials, plaintiffs claim that they were

denied a

— A-16 —

legal, objective, and unbiased forum in which to adjudi-

cate their innocence of the serious charges as leveled by

Dr. Wochner, and have been directly damaged by the

failure of the aforementioned office holder (sic) to fulfill

their Charter and Ordinance duties and obligations of

their respective offices as previously plead; all of which

inure to the detriment of the plaintiffis’ (sic) due to the

activities complained of since June 1973 when the unsub-

stantiated charges were preferred by Dr. Wochner.

As previously discussed, the alleged actions and inactions of

the individual defendants in failing to strictly adhere to the

procedures established to deal with discharged employees do

not rise to the level of a constitutional violation. Count X must

therefore fail for not stating a cause of action for denial of due

process of law.

Additionally, because defendants are alleged to have ac-

quiesced in and affirmed this policy by virtue of taking those

actions, or failing to act, in the manner pleaded in the preced-

ing counts, the Court must look to when those actions occurred

in light of the applicable statute of limitations. Plaintiffs have

set forth no additional acts by the defendants in Count X, so

that the previous discussion by the Court regarding the run-

ning of the statute of limitations is applicable to each of the

- defendants named in this final count. Count X must therefore

be dismissed as to defendants Gould, Essex, Cummings, Poel-

ker, the Department of Personnel and the Civil Service Com-

mission as being time-barred.

Furthermore, there being no additional acts alleged, beyond

those pleaded in Counts II and IX, Count X must be dismissed

as to the Department of Personnel and Mayors Conway and

Poelker for failure to state a cause of action for the reasons

heretofore stated.

—A-17—

In considering whether Count X states a cause of action as

to the City of St. Louis, the Court must look to Monell v. De-

partment of Social Services of the City of New York, 436 U.S.

658 (1978), wherein the Supreme Court held that a munici-

pality is a person within the meaning of 42 U.S.C. §1983. While

the Court expressly disclaimed the doctrine of respondeat

superior as a theory of liability under this section, the Court

did hold that a city itself could be liable where the conduct

of the city executes or implements official policy. Such policy

might be found in an ordinance, regulation, policy statement

or decision officially adopted by the city’s officers, or it could

be found in a pattern of “persistent practices” sufficiently

known to and approved by city officials to constitute a custom

of “equivalent though unofficial authoritativeness.” Smith o.

Ambrogio, 456 F.Supp. 1130 (D.Conn, 1978). See also Adickes

v. S.H. Kress & Co., 398 U.S. 144, 167 (1970).

To state a cause of action against a municipality under 42

U.S.C. $1983, there must be alleged conduct by the city that

subjects a person to a denial of a constitutional right or causes

him to be subjected to such a denial. Smith v. Ambrogio, supra

at 1134, Because the acts of the defendants, with the exception

of the allegations contained in Count V against defendants

Wochner and Marino, do not rise to the level of a constitutional

violation, charging the City of St. Louis with legal responsi-

bility for such conduct fails to state a cause of action. The City

of St. Louis also cannot be held legally responsible for the

alleged conduct of defendant Wochner in bribing defendant

Marino, because the imposition of liability here would be by a

theory of respondeat superior. Monell, supra. Therefore,

Count X must be dismissed as to the City of St. Louis.

— A-18 —

For the reasons heretofore enumerated, Counts I, II, III, IV,

VII, VIII, [IX and X will be dismissed as to all defendants.

Dated this 29th day of June, 1979.

Edward L. Filippine /ss/

UNITED STATES DISTRICT JUDGE

(Appendix C)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 77-305 C (4)

STATE OF MISSOURL, ex rel.,

MINNIE E. T. GORE, and

JENNYE ROBINSON,

Plaintiffs,

v.

R. DEAN WOCHNER, M.D., et al.,

Defendants

ORDER

This matter is before the Court on plaintiffs’ motion for

reconsideration of the Court’s order and judgment of dismissal

as to certain counts of plaintiffs’ petition.

After consideration of the matter,

IT IS HEREBY ORDERED that the motion be and is

DENIED.

Dated this 9th day of August, 1979.

Edward L. Filippine

UNITED STATES DISTRICT JUDGE

—A-19 —

(Appendix D)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 77-305 C (4)

STATE OF MISSOURI ,ex rel.,

MINNIE E. T. GORE, and

JENNYE ROBINSON

Plaintiffs,

Vv.

R. DEAN WOCHNER, M.O., et al.,

Defendants.

ORDER OF THE DISTRICT COURT

The Court hereby order and adjudges that it’s order dismis-

sing Fred Gould, David V. Essex, Jr., John Poelker, John Bass,

R. Elliott Scearce, James Conway, Raymond Percich, William

Duffee, R. Cummings, City of St. Louis, The Civil Service

Commission, The Department of Personnel is hereby adjudi-

cated and decreed to be a final judgment as between the plain-

tiff's and the above-named defendant’s. Further ,this Honorable

Court finds that their is no just reason for delay. This order

of final judgment is entered to permit the named plaintiff's to

perfect their appeal as provided by Rule 54(B) F.R.C.P.

Date: Aug. 28, 1979

Edward L. Filippine

U.S. District Judge

— A-20 —

(Appendix E)

STATE OF MISSOURI

COUNTY OF ST. LOUIS

IN THE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 77-305-C(8)

STATE OF MISSOURI, ex rel.,

MINNIE E. T. GORE, and

JENNYE ROBINSON,

Plaintiff,

vs.

R. DEAN WOCHNER, M.D., et al.,

Defendants.

NOTICE OF APPEAL

Notice is hereby given that MINNIE E. T. GORE and

JENNYE ROBINSON, Plaintiffs above named, hereby appeals

to the U.S. Court of Appeals for the Eight Circuit from the

Trial Court granting Defendant’s motion to dismiss as to

Counts I, II, III, IV, VI, VII, VIII, IX, X and all Defendants

therein named entered June 29, 1979 and made a final judg-

ment pursuant to Rule 54(b) F.R.C.P. on August 28; 1979 dis-

missing the above-enumerated counts of Plaintiffs second

amended petition.

September 4, 1979

— A-21—

Stephen J. Nangle

STEPHEN S. NANGLE

Attorney at Law

226 S. Meremec — Suite 204

Clayton, Missouri 63105

J. J. Relles by S. J. Nangle

JOHN J. RELLES

1108 Olive Street

St. Louis, Missouri 63141

>.

ocr ll

(Appendix F)

UNTED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1979

No. 79-1759

State of Missouri ex rel,

Minnie E. T. Gore, et al,

Appellants,

Vs.

R. Dean Wochner, M. D., et al,

Appellees.

Appeal from the United States District Court for the

Eastern District of Missouri.

The Court, having considered appellants’ petition for rehear-

ing and suggestions for rehearing en banc and being now fully

advised in the premises, hereby orders the petition for rehear-

ing and suggestions for rehearing en banc denied.

May 8, 1980

— A-23 —

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

Cause No. 77-0305-C (4)

STATE OF MISSOURI ex rel.

MINNIE E. T. GORE, JENNYE ROBINSON,

Petitioners,

VS.

R. DEAN WOCHNER, M.D. et al.,

Respondent.

SECOND AMENDED PETITION

COUNT I

COMES NOW the plaintiffs and for their cause of action

against the defendants state as follows: to-wit:

1, Jurisdiction of this Court is founded upon Titles 42 U.S.C.

1983 and 28 U.S.C. 1343. Defendants herein and each of

them jointly and severally at all times hereinafter mentioned,

acting under color of state law and of the Charter of the City

of St. Louis, State of Missouri, and duly enacted ordinances

thereof, at all times mentioned in full force and effect, sub-

jected plaintiffs to deprivation of their rights, privileges, and

immunities, and, particularly, to their right to due process of

law secured by the 14th Amendment of the United States Con-

stitution; as hereinafter more particularly detailed.

2. Plaintiffs Minnie E. T. Gore and Jennys Robinson are

residents of the State of Missouri, and reside in the jurisdiction

of this District.

— A-24 —

3. This cause is brought in the name of the State of Missouri,

by the relation of plaintiffs, due to allegations contained in

Count IX of the petition against defendants, and is mandatory

as to allegations contained in said Count.

4. Defendant Wochner, is a resident of the County of St.

Louis, Missouri and was at all timed mentioned employed by

the City of St. Louis, as Director of Health and Hospitals, and

Acting Hospital Commissioner, and is sued here both individ-

ually and in the capacities as heretofore mentioned.

5. Defendant John Poelker is a resident of the City of St.

Louis, Missouri, and is sued here both individually and as the

former elected Mayor of the City of St. Louis, a charter city

under the laws of the State of Missouri; that he did during the

times hereafter set forth have the authority, right and capacity

to continue employment or terminate defendant, R. Dean

Wochner, at his pleasure.

6. Plaintiffs were employees in the Civil Service of said City

and prior to their dismissal employed in the following posi-

tions: plaintiff Gore as Director of the Municipal School of

Nursing, plaintiff Robinson was a staff teaching nurse of the

said School.

7. Prior to the defendants wrongful acts hereafter men-

tioned and while the plaintiffs engaged in their lawful profes-

sions, defendant Wochner, as appointing authority, lodged

against plaintiffs charges of misconduct, impropriety, and in-

competance and as a result thereof dismissed plaintiffs on June

25, 1973, from their positions.

8. That charges lodged against the plaintiffs by the defend-

ant Wochner were done under color of the law; that defendant

Wochner, was designated by the Charter of the City of St.

Louis and ordinances thereof, as the appointing authority of

x belt a

said plaintiffs, and had authority to terminate them for cause;

that all of the charges then made against plaintiffs and each

of them were untrue and false; that acts of defendant Wochner

in dismissing plaintiffs breached his duty to plaintiffs of fair-

ness, impartiality and consistency of administration of his

duties as the appointing authority, and deprived them of equal

protection of the law under the Constitution of the United

States of America.

9. That a letter by defendant Wochner to plaintiff Robinson

dismissing her for enumerated reasons and dated June 26,

1973, contained a statement that she could file a notice of

appeal to the Civil Service Commission of the City of St. Louis,

State of Missouri within ten (10) days. The charges as pre-

sented to plaintiff Robinson are as follows:

1. Materially misstated academic qualifications on appli-

cation for employment and to the Director of the

Department of Health and Hospitals.

2. That you failed to perform assigned work duties, you

were absent from work assignments, necessitating per-

formance of these duties by other employees. This was

done at increased cost to the City.

3. You applied for and accepted overtime compensation

without documentation and without having worked

those hours.

4, That you took excessive and unreasonable sick leave

without approval of your appointing authority.

5. That you failed to supervise through your absence the

student nurses who were on clinical rotation to the

patient management and emergency and disaster

courses.

6. You applied for and accepted double compensation.

(a) Specifically, you were paid a standard 80 hour,

bi-weekly compensation and overtime compensa-

yy

tion without having performed overtime responsi-

bilities.

(b) Specifically, you were employed as an emergency

graduate nurse at St. Louis City Hospital and as a

Nurse Instructor II at the St. Louis Municipal

School of Nursing. You were paid by both agen-

cies for the same periods of time.

7. You failed to comply with the directives and regula-

tions of the St. Louis Municipal School of Nursing.

8. Allowed your academic transcript from the Homer G.

Phillips School of Nursing to be altered and you used

this altered document to your personal advantage.

10. Prior to said letter, plaintiff Robinson did file with the

Civil Service Commission a timely notice of appeal on June

25, 1973.

11. Plaintiff Gore was verbally notified by defendant Woch-

ner she was dismissed June 25, 1973, but said charges and the

specifications of her dismissal were not lodged with the Civil

Service Commission until October 3, 1973, two (2) calendar

days prior to commencement of hearings of her discharge, by

the Civil Service Commission. Despite the time variance of

the charge against plaintiff Gore, the Civil Service Hearings

that commenced October 5, 1973, heard the charges as filed

against plaintiff Gore by the defendant Wochner which are

as follows:

1. You permitted Jennye M. Robinson to fail to perform

her assigned duties as Instructor in the School of

Nursing while she was a fulltime employee of the City

of St. Louis.

2. You altered the Sign-In/Sign-Out Sheets to list addi-

tional time for Miss Robinson.

3. You approved overtime for Miss Robinson without

documentation that this overtime duty was performed.

— A-27 —

4. You caused to be altered the Homer G. Phillips School

of Nursing student final record of Jennye Robinson and

signed the same as her record and placed it in her offi-

cial files.

5. You caused the record described to be forwarded to

St. Louis University as the official student final record

of Jennye M. Robinson.

6. You approved sick leave for Miss Robinson in excess

of your authority.

7. You misrepresented the facts and attempted to conceal

these matters from me in my investigation.

12. That at all times herein mentioned, the acts of the ap-

pointing authority, R. Dean Wochner, were conducted under

color of state law and the authority of the Charter of the City

of St. Louis, and ordinances thereof, and the said acts were,

capricious, spiteful, and malicious as to each plaintiff and con-

stituted a deprivation of plaintiffs’ rights, privileges and im-

munities and right to due process; that the defendant Poelker

knew or in the exercise of ordinary care should have known

of the acts; he condoned the acts of defendant Wochner and

refused to intercede to prevent the constitutionally deprivaci-

ous conduct by defendant Wochner.

13. That all of the aforesaid acts by defendant Wochner as

set forth relating to plaintiffs Robinson and Gore, were known

to defendant or should have been known to defendant to be

untrue, false, malicious, and done solely to injure and harm

plaintiffs and each of them; that said acts were ratified and

approved by the acts of omission of defendant Poelker, who

permitted the same to exist while having the absolute au-

thority to terminate their continuation.

14. That the charges of complaint lodged against plaintiffs

by defendant Wochner, as set forth above, are frivolous and

untrue; that they were preferred against plaintiffs by Wochner

— A-28 —

without probable cause or legal foundation; that some of the

complained of acts did in any event pre-date in time the as-

sumption of duties by the defendant Wochner of his posi-

tions as the appointing authority, and also the election of the

defendant Poelker by whose grace the defendant Wochner

continued in his capacity as the appointing authority.

15. That as a direct and proximate result of said acts of

Wochner and Poelker, and each of them jointly and severally,

plaintiffs suffered shame, humiliation, and embarrassment due

to their loss of professional reputation and standing in their

profession and community at large, and as a further result of

said acts they, plaintiffs and each of them suffered great

mental anguish that additionally plaintiff Robinson suffered

loss of salary and income justly due her from June 26, 1973

to October 5, 1973 in the sum of Three Thousand Five Hun-

dred ($3,500.00) Dollars.

WHEREFORE, plaintiffs pray for judgment against the de-

fendants Wochner and Poelker and each of them jointly and

severally for actual damages in the sum of Two Hundred Fifty

Thousand ($250,000.00) Dollars actual damages, and plaintiff

Robinson prays in addition for her special damages of lost

income in the sum of Three Thousand Five Hundred ($3,-

500.00) Dollars, and each plaintiff prays judgment against the

aforementioned defendants jointly and severally in the sum of

Two Hundred Fifty Thousand ($250,000.00) Dollars punitive

damages; further, that plaintiffs and their attorney be awarded

a reasonable sum of money to adequately compensate them

for the cost, time and, expense of bringing this action as pro-

.vided for by the Civil Rights Attorney’s Fee Award act, 42

U.S.C. 1988.

— A-29 —

COUNT II

COMES NOW the plaintiffs and for their cause of action in

Count II hereof state and over as follows:

1, Plaintiffs incorporate herein as plead paragraphs one

through fifteen of Count I.

2. Said defendant Scearce is sued here individually and in

his official capacity as hereafter more fully set forth and de-

scribed.

3. Defendant, R. Elliott Scearce, is a resident within the

jurisdiction of this court and was employed as the Director of

the Department of Personnel of the City of St. Louis, State

of Missouri, a municipal agency within the corporate structure

of the defendant City of St. Louis.

4, That as Director, the defendant Scearce was responsible

for the administration of the Civil Service Commission of the

City of St. Louis, and was the Secretary of the Civil Service

Commission as prescribed by Article XVIII Section 9(a) of

the Charter of the City of St. Louis.

5. That the Civil Service Commission of the defendant City

of St. Louis, is a commission and agency of said city by virtue

of the charter provision of said defendant City. The com-

mission itself is composed of three members appointed by the

Mayor who thereafter serve a staggered term or until their

successors are appointed. The commission members them-

selves serve as part-time overseers of the Department of Per-

sonnel which, is charged by charter with the administration

of the Civil Service system. The system is responsible for the

employment of some eighty-five (85%) percent of all mu-

nicipal employees under a merit system. The commission is

— A-30 —

charged with monitoring and adjudicating the complaints of

employees working under said system, whereas the Director

of Personnel, defendant Scearce, is by charter the administra-

tor of said system. The Director of Personnel is by charter

the Secretary of the Commission, carrying out and implement-

ing the mandates and directions of the Commission within

their area of charged responsibility.

6. There was at all times here mentioned in full force and

effect the following provisions of the Charter of the City of

St. Louis, to-wit:

“Removals and demotions. — For removals, demotions and

decreases in pay in the case of employees whose service

rendered is below satisfactory standards, designed to pro-

mote the efficiency of the service. Such action shall be

effective only after written notice to, with right of appeal

in, the employees affected, and after such investigation as

is appropriate to insure that the action taken is on the

sole ground of merit and fitness.” Article XVIII, Section

2(n)

7. That pursuant the powers and duties of the Director of

Personnel set forth in Article XVIII, Section 7(b); defendant

Scearce had, prior to the time here in at issue, recommended

and said Commission had adopted, Certain rules and regula-

tions known as the Civil Service Rules which were necessary

to implement the authority in Article XVIII, Section 2(n),

supra. Further, the Civil Service Commission had adopted as

one of the rules, the following, to-wit:

Rule IX Sec. 4 “(d) Dismissal, reduction in pay, demotions:

Any dismissal, demotion, or reduction in pay shall be re-

ported to the Director in writing and copy of such notice

shall be given to the employee and shall include notice of

his right of appeal and the reasons for the action. The

Director shall, within a reasonable time, in every such

case, investigate the circumstances surrounding the action

— A-31 —

to insure that it is being taken on the sole grounds of merit

and fitness, and shall indicate his approval or disapproval

in writing to the appointing authority to the employee. In

case the action is approved, it shall become immediately

effective, but the employee shall retain the right to appeal

to the Commission. In case the action is dousictel. the

employee shall be continued in the same status in the

position, but the appointing authority shall retain the right

of appeal to the Commission. Such appeals from the deci-

sion of the Director shall be taken in accordance with

Rule XIII.”

8. Plaintiffs state they timely notified the said Commission

and defendant Scearce of their appeal from the actions of de-

fendant Wochner.

9. That defendant Wochner in his attempts to dismiss plain-

tiff Gore was without authority. Article XVIII, Section 7

states, in part, as follows:

Section 7. Commission power and duties, — The Commis-

sion shall have power, and it shall be its duty:

(a) Administration — To prescribe, and to amend from

time to time as such action is deemed to be desira-

ble, rules for the administration and enforcement of

the provisions of this article, and of any ordinance

adopted in pursuance thereof, and not inconsistent

therewith.

(b) Ordinances.—To recommend to the mayor and

aldermen in accordance with this article, ordinances

to provide for:

....(2) a plan for a system for retirement of super-

annuated and otherwise incapacitated em-

ployees, if and when permissible under the

constitution and laws of the State of Mis-

souri;”

— A-32 —

10. Plaintiff Gore states upon her information and belief

that there has never been enacted any legal or ordinance

authority complementing the above cited Charter prescrip-

tion; yet, despite the lack of authority, the Civil Service Rules

state, inter alia,

“Rule LX — Separations and Disciplinary Action"

Section c. DISCIPLINARY ACTION:

Employees in the classified service may be removed,

demoted, reduced in pay, fined, or suspended without pay

for just cause.

(a) Reasons for disciplinary action; appointing authority

to take such action:

When any employee in the classified service is unable or

unwilling to perform the duties of his position in a satis-

factory manner, or has committed any act or acts to the

prejudice of the service, or has omitted to perform any

act or acts it was his duty to perform, or who has ceased to

reside in St. Louis, or whose service rendered is below sat-

isfactory standards or otherwise has become subject to

disciplinary or other corrective measures, the appointing

authority shall have the power and its shall be his duty

to take action in one of the following ways:

..++ (6) To dismiss the employee from the City Service.

(7) To retire the employee under the terms of any

retirement act for City employees in existence

at the time or removal and under which the em-

ployee is entitled to benefits.

11, That, the appointing authority did not have the power

to order the retirement of plaintinff Gore, and, the Civil Serv-

ice Commission could not thereafter uphold such an order;

that, in either event, the defendant Scearce was negligent in

the conduct of his office in that he failed to follow the manda-

tory prescription of Article XVIII Section 2 (n) and the Civil

Service Rule IX Section 4(d), supra, and plaintiffs here state

— A-33 —

that said defendant Scearce made no investigation before the

termination of either the facts of said charges as to plaintiff

Robinson and as to plaintiff Gore; further, that such acts were

wilfully and maliciously negligent or in conscious disregard

of the rights of both plaintiffs.

12, That, as a direct and proximate cause of the negligent

acts of defendant Scearce in his failure to perform his duties,

imposed by Charter and Rule for the protection of a class of

people to which plaintiffs belong by reason of the acts of de-

fendants Wochner and Poelker as set forth above; the plain-

tiffs, and each of them, suffered as a result thereof a loss of

salary during the entire period of their appeal caused by the

capricious acts of defendant Wochner in terminating them.

13, As a matter of policy and custom, the defendant Scearce

did on numerous similar occasions, fail or refuse to make ob-

ligatory investigations as required by Civil Service Rules, that

said defendant when he did investigate, did so selectively;

but that said act of the defendant Scearce in failing and neg-

lecting his duty, save and except as was his whim and caprice,

was in fact an approach to his position that was arbitrary,

capricious, and selective in the application of said laws, fur-

ther, over a course of time it was considered usage, custom,

and policy of the City of St. Louis by and through the De-

partment of Personnel, its agents and employees and the Civil

Service Commission, its agents and employees. Further, it

was considered the same by all parties herein named as de-

fendants; and, that irrespective of any other act of commis-

sion or omission, there was to all named defendants before

this court a knowledge, agreement, the approval of the above

acts which were carried on in complete deprivation and total

disregard to the rights of plaintiffs, both individually and as

members of a class of people who were subject to disciplinary

action by any appointing authority of said City. Further, said

ey Y ee

deprivation impaired the rights, priviliges and immunities of

the plaintiffs which are secured and guaranteed under the

Constitution of the United States of America.

14. That all parties, individually and in their official capaci-

ties while holding a position within the scheme of the Civil

Service framework of the City of St. Louis or the Depart-

ment of Pecsonnel whether named herein as defendant or not,

were aware of and had knowledge of the arbitrary, capricious,

and whimsical manner in which said defendant Scearce se-

lectively carried out his prescribed duties. Further, further,

with the knowledge and the tacit agreement of said parties,

there developed an administration which established the man-

ner of application of laws of the Department of Personnel of

the City of St. Louis as they dealt with the Civil Service,

established by the Charter of the Charter of the City of St.

Louis and ripened into defendant City’s usage, custom, action,

and policy.

15. That, had defendant Scearce discharged his duty, the

plaintiffs would have, during the protracted hearings before

the Civil Service Commission, been paid full salary; and that,

additionally as provided by said rule, the appeal would have

fallen on defendant Wochner: the effect of which would have

greatly reduced and diminished the shame, embarrassment,

and humiliation suffered by plaintiffs’ and would have re-

moved the sting of disfavor and rejection suffered by plain-

tiffs, both professionally and in society as a whole, which re-

sulted when the aforementioned acts of defendant Wochner

were visited on plaintiffs.

WHEREFORE, plaintiff Robinson prays special damages

against the defendant Scearce, City of St. Louis, Department

of Personnel, and the Civil Service Commission, jointly and

severally, for her lost wages in the sum of Thirty Five Thou-

— A-35 —

sand ($35,000.00) Dollars, from August 1, 1973 to October

20, 1975; for actual.damages for her humiliation and’ disgrace

professionally and personally, and her mental anguish, in the

sum of Two Hundred Fifty Thousand ($250,000.00) Dollars,

and punitive damages in the sum of Two Hundred Fifty

Thousand ($250,000.00) Dollars; plaintiff Gore prays special

damages against the aforementioned defendants jointly and

severally in the sum of Forty Thousand ($40,000.00) Dollars

lost wages from January 1, 1974 to October 20, 1975, and ac-

tual damages for her humiliation and disgrace and mental

anguish in the sum of Two Hundred Fifty Thousand ($250,-

000.00) Dollars, punitive damages in the sum of Two Hundred

Fifty Thousand ($250,000.00) Dollars; further, that plaintiffs

and their attorneys be «warded a reasonable sum of money to

adequately compensate them for the cost, time and expense

of bringing this action as provided for by the Civil Rights

Attorney's Fee Award Act, 42 U.S.C. 1988.

COUNT III

COMES NOW the plaintiffs and for Count III of their

petition states as follows, to-wit:

1. Plaintiffs hereby incorporate, as plead, paragraph one

through fifteen of Count II.

2. Defendant Fred Gould, a resident of the State of Mis-

souri, is within the Court’s jurisdiction and is here sued both

individually and in his official capacity as a member of the

Civil Service Commission of the City of St. Louis.

3. Defendant Cummings, a resident of the State of Mis-

souri, is within the Court’s jurisdiction and is here sued both

individually and in his official capacity as a member of the

Civil Service Commission of the City of St. Louis.

a

4. At the time of plaintiffs’ verbal notice of dismissal on

June 25, 1973; the Civil Service Commission was then com-

posed of defendant’s Cummings, Gould, and George Stemmler,

now deceased.

5. That on or about October 5, 1973 said commission mem-

bers were present and acting both individually and in their

capacity as members of the said Commission. Further, they

were charged with the knowledge of rules of procedure, and

had, as a condition of the commencement of said hearings,

a duty to insure that the Secretary of the Commission, as the

Director of Personnel, had discharged his duty of inquiry as

set forth above; but that each of the said members failed or

refused to discharge his obligations and commenced the said

hearing without requiring that provisions of both the City

Charter and Civil Service Rules be adhered to as a condition

precedent of said hearings.

6. That their individual breach of this duty was clear; since,

in fact, the conclusions of the Director of Personnel as to his

investigation as set forth above in Rule IX, Section 4(d) was

required to have been in writing and thus was necessarily a

part of the personnel file of plaintiffs herein: and that the said

defendants negligently and carelessly failed to pursue said an

inquiry to determine if compliance with the Civil Service Rules

as it pertained to defendant Scearce duties, was satisfied. That

said acts of the herein named defendants were wilfully and

intentionally done or were done with a conscious disregard

for the rights of plaintiffs.

7. That the failure of the defendants, and each of them,

constituted a fundamental breach of their duties to each of

the plaintiffs in that the prescription of the Charter, as rein-

forced by the Civil Service Rules, was enacted to guard against

the very arbitrary, capricious, and selective conduct herein

— A-37 —

complained of. Further, that the plaintiffs, individually, had

a right to rely upon the said defendant Commissioners, and

each of them jointly and severally, at every state of the pro-

ceedings in which plaintiffs had been cast as members of the

class of people for whom the Charter provisions of the Civil

Service Rules had been adopted to protect. Further, they

relied that the various duties and functions of the office which

defendants, both individually and in their official capacities,

would be exercised and discharged according to their sworn

duty; but that the said defendants, and each of them, totally

disregarded their responsibilities to said class of people.

8. That said acts or omissions to act deprived the plaintiffs,

both individually and as members of the class of persons under

the aforecited Charter and Rules in which they were cast, of

their rights, privileges, and immunities secured and guaranteed

by the United States Constitution under color of state law.

WHERETOFORE, plaintiff Robinson prays special damages

against the defendants Gould and Cummings jointly and sev-

erally for her lost wages in the sum of Thirty Five Thousand

($35,000.00) Dollars, from August 1, 1973 to October 20,

1975; for actual damages for her humiliation and disgrace

professionally and personally in the hum of Two Hundred

Fifty Thousand ($250,000.00) Dollars, and punitive damages

in the sum of Two Hundred Fifty Thousand ($250,000.00)

Dollars; plaintiff Gore prays special damages against the

aforementioned defendant jointly and severally in the sum of

Forty Thousand ($40,000.00) Dollars lost wages from January

1, 1974 to October 20, 1975, and actual damages for her hu-

miliation and disgrace in the sum of Two Hundred Fifty

Thousand ($250,000.00) Dollars, punitive damages in the sum

of Two Hundred Fifty Thousand ($250,000.00) Dollars; fur-

ther, that plaintiffs and their attorney be awarded a reason-

able sum of money to adequately compensate them for the

— A-38 —

cost, time and expense of bringing this action as provided for

by the Civil Rights Attorney’s Fee Award Act, 42 U.S.C.

1988.

COUNT IV

COMES NOW the plaintiffs and for Count IV of their peti-

tion state as follows, to-wit:

1. Plaintiffs hereby incorporate herein as plead paragraphs

one through eight of Count III of said petition.

2. That shortly after the commencement of the Civil Serv-

ice Commission hearings on or about October 5, 1973, wherein

said Commission began hearing the appeals of plaintiffs Gore

and Robinson; there was affected certain changes in the com-

position of said Civil Service Commission the effect of which

was to remove as a Commissioner, and, therefore, as Hearing

Judge of said Commission, members Cummings and Stemmler.

They were replaced on the Commission by defendants Marino

and Essex.

3. Defendant Marino is a resident of the State of Missouri

and resides within the jurisdiction of this court, and is sued

here both individually and in his official capacity as a mem-

ber of the Civil Service Commission of the City of St. Louis.

4. Defendant Essex is a resident of the State of Missouri

and resides within the jurisdiction of this court, and is sued

here both individually and in official capacity as a member of

the Civil Service Commission of the City of St. Louis.

5. That upon each of the above named defendants assum-

ing their duties as members of the Civil Service Commission,

they represented and stated that they had read and familiar-

— A-39 —

ized themselves with the prior proceedings then in progress

and were aware and informed of the charges and specifica-

tions against the plaintiffs. Further, that they were familiar

with the Charter requirements of the City of St. Louis, the

ordinances enacted pursuant thereto, and had knowledge of

the rules and procedures of the Civil Service Commission of

the City of St. Louis then in force and effect.

6. That by said statements and assertions the above named

defendants admitted that they had actual or constructive

knowledge of the negligent failure of defendant Scearce in

the fulfillment of his duty as herein plead. Further, said de-

fendants admitted that they had actual or constructive knowl-

edge of the negligent failure of defendants Gould and Cum-

mings in the fulfillment of their duty as herein plead. The

above named parties in their failure to demand a cessation

of the hearings then in progress until defendant Scearce had

performed his duty were negligent and in direct violation of

their sworn duty prescribed and defined as follows:

“Section 7. Commission powers and duties.—The commis-

sion shall have power, and it shall be its duty:

(a) Administration. — To prescribe, and to amend from

time to time as such action is deemed to be desirable,

rules for the administration and enforcement of the

provisions of this article, and of any ordinance

adopted pursuance thereof, and not inconsistent

therewith. Article XVIII, Section 7(a) the Charter of

the City of St. Louis.

“Section 1. APPEALS:

The Commission shall have power, and it shall be its

duty to consider and determine any matter involved in

the administration and enforcement of Article XVIII 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

sp CM as

taxpayer of the City, from any act of the Director or of

any appointing authority. The decision of the Commis-

sion in all such matters shall be final, subject, however,

to any right of action under any law or the State or of

the United States.” Section 1 Appeals, Hearings, & In-

vestigations: Rule XIII Civil Service Rules.

7. That said negligence was done under color of state law

and was violative of plaintiffs’ due process rights secured by

the Constitution of the United States of America.

WHERETOFORE, plaintiff Robinson prays special damages

against the defendants, Marino and Essex jointly and severally

for her lost wages in the sum of Thirty-Five Thousand ($35,-

000.00) Dollars, from October 5, 1973 to October 20, 1975;

for actual damages for her humiliation and disgrace profes-

sionally and personally in the sum of Two Hundred and

Twenty Five Thousand ($225,000.00) Dollars, and punitive

damages in the sum of Two Hundred and Twenty Five Thou-

sand ($225,000.00) Dollars; plaintiff Gore prays special dam-

ages against the aforementioned defendants jointly and sev-

erally in the sum of Forty Thousand ($40,000.00) Dollars lost

wages from January 1, 1974 to October 20, 1975, and actual

damages for her humiliation and disgrace in the sum of Two

Hundred and Twenty Five Thousand ($225,000.00) Dollars;

further, that plaintiffs and their attorney be awarded a reason-

able sum of money to adequately compensate them for the

cost, time and expense of bringing this action as provided for

by the Civil Rights Attorney’s Fee Award Act, 42 U.S.C,

1988.

— A-4] —

COUNT V

COMES NOW the plaintiffs and for Count V of their peti-

tion state and avers as follows, to-wit:

1, Plaintiffs hereby incorporate herein as plead paragraphs

one through seven of Count IV of this petition.

2. That, as a result of the above, Civil Service Commission

commenced hearing the appeals of plaintiffs on October 5,

1973 and that said hearings continued through 18 seperate

sessions concluding June 25, 1975 and resulted in one thousand

seven hundred and fifty (1,750) pages of transcribed testi-

mony.

3. Many charges of misconduct, as stated above, placed

against plaintiffs by defendant Wochner, were alleged to have

occurred during the years 1967-1970, prior to defendant Woch-

ner’s assumption of office. The case was not finally submitted

to the Commission until June, 1975.

4, That defendant Marino, since his appointment in Decem-

ber, 1973, as Chairman of the said Commission, assumed con-

trol of the hearings, ruled on admissibility of evidence, struc-

tured time frames for all proceedings, and was in fact the

dominant member of the Commission exercising persuasive

control over fellow members, stating in the course of the hear-

ings that he, Marino, “speaks for” other members of the Com-

mission although the other members of the Commission were

present, heard such assertions and made no rejoinder denying

the accuarcy of such assertions.

5. Defendant Marino had been dismissed from employment

with Blue Cross in March, 1975, prior to the conclusion of the

Commission hearing; and was thereafter without full-time em-

—_ A-49 —

ployment and as a result his personal economic condition be-

came desperate.

6. Prior to conclusion of the said Commission hearings,

Marino, by his own admission, solicitated assistance of Robert

Duffe, the executive administrative aide to defendant Poelker

who was knowledgable in all aspects of municipal employ-

ment, to aid him in the securing of employment within the

City of St. Louis, State of Missouri.

7. After the submission of the plaintiffs’ case to the said

Commission in June, 1975, pleas for employment were made

by Marino to Robert Duffe which covered a period of approxi-

mately four (4) months. Finally, in August, Duffe advised

Marino to contact defendant Wochner for employment, after

discussing the matter with defendant Poelker, the then Mayor

of defendant City of St. Louis.

8. In August or September, 1975 Marino contacted Woch-

ner; a meeting was arranged which concerned the employment

of Marino by defendant Wochner. Further discussions oc-

curred over several weeks between said defendants culminat-

ing in defendant Wochner tendering defendant Marino a job

on or before October 13, 1975. Defendant Wochner’s purpose

and intent in tendering an offer of a job to Marino, in ex-

change for his voting against and influencing the other mem-

bers of the Commission in voting against plaintiffs, was to cure

and make whole the then unsubstantiated charges lodged

against plaintiffs by Wochner in the first instance. Due to the

absence of any meaningful foundation in fact or evidenciary

support for the charges lodged against plaintiffs by defendant

Wochner, the bribery was used by defendant Wochner to

correct the lack of probable cause in the charges as originally

filed,

— A-43 —

Then, on October 14, 1975, Marino as Chairman and con-

trolling member of the said Commission, voted and ruled ad-

versely and against the interest and rights of the plaintiffs and

in favor of plaintiffs’ accuser, defendant Wochner.

10. Less than seventy-two (72) hours after the announce-

ment of the decision in favor of defendant Wochner and

against plaintiffs:

A. Defendant Wochner forwarded to defendant Marino

plaintiffs’ exhibit “A” attached hereto and incorporated herein

as if plead; and

B. Defendant Marino resigned his position as Chairman of

the Civil Service Commission of said City, on October 17, 1975

and accepted the offer contained in plaintiffs’ exhibit “A”,

commencing work under its terms on October 20, 1975.

11. Plaintiffs further state that the time of said offer by

defendant Wochner and its acceptance by defendant Marino,

there was no authority for said position within the table of

organization of the Civil Service Commission of said City; it

was not within the budget of the Department headed by

defendant Wochner and, therefore, the acts of the defendants

were unlawful, malicious, oppressive, and corrupt.

12. There was at all times during the above mentioned

actions in full force and effect the following:

A. Article XVIII. Civil Service in the revised Code of the

City of St. Louis which states:

“h” ‘Excepted position’ means any position in the clas-

sified service not subject to the provisions of this article

requiring competitive tests of fitness for appointment and

such other provisions as, by their terms apply specifically

way y= ek

to competitive positions alone. All such positions, how-

ever, shall be subject to all other provisions of this article

insofar as consistent with law and with this exception.

The following described positions and not other 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 appoint-

ment by the Mayor;

(3) one position of executive secretary and one position

secretary and stenographer to the Mayor;

(4) all positions of paid members of boards;

(5) all officers and employees of the Board of Aldermen;”

B. Article XVIII, Section 3 of the Revised Code of St. Louis

which states:

“(g) Temporary Appointments-— for temporary appoint-

ments without competitive tests, to competitive positions,

for not to exceed sixty days in any case, which shall not

be renewed or extended. Such temporary appointments

to be provided for shall include provisional appointments

in the absence of available eligibles pending establish-

ment of eligible registers and certification and appoint-

ment therefrom, transient appointments for short jobs of

work, and emergency appointments pending filling of va-

cancies by other means than such emergency appoint-

ments.”

C. Article XVIII, Section 18 of the Revised Code of St.

Louis which states:

‘ action 18. Promises of official influence to affect politi-

cal action. — No person, while holding any City office, or

while in nomination to appointment to any such office,

shall corruptly use or promise to use, directly or indirectly,

any official authority or influence, possessed or antici-

pated, to confer upon any person, or to secure or aid any

— A-45 —

person in securing, any office or public employment, or

any nomination, confirmation, promotion or increase of

salary, upon the consideration or condition that the vote

or political influence or action of any person shall be given

or used in behalf of any candidate, officer or party, or

upon any other corrupt condition or consideration. No

person, being an officer of the City, or having or claiming

any such authority or influence, in relation to the nomina-

tion, employment, confirmation, promotion, removal or

increase or decrease of salary, of any employee, shall cor-

ruptly use, or promise or threaten to use, any such au-

thority, or influence, directly or indirectly to coerce or

persuade the vote or political action of any person or the

removal, discharge or promotion of any employee of the

City.”

D. Article XVIII, Section 22 of the Revised Code of the City

of St. Louis, which states:

“Section 22. Violation of civil service provisions, — any

person who shall willfully or through culpable negligence

violate or conspire to violate any provision of this article

or any ordinance made pursuant theretofore which no

other punishment is provided herein, shall be guilty of a

misdemeanor, and upon conviction thereof in any court

of competent jurisdiction, shall be punished by a fine of

not less than one hundred dollars and not more than five

hundred dollars or by imprisonment for not to exceed six

months, or both, in the discretion of the court. The con-

viction of any employee of any such offense shall operate

automatically to terminate his service and to vacate his

position. Any employee so removed from the service shall

not be reinstated, re-employed, or re-appointed, or in any

other manner, re-enter the service of the City of St. Louis

for a period of five years from the date of such convic-

tion, and the comptroller any other fiscal officers respon-

sible for payment of any compensation to such person

are hereby charged with notice thereof. Nothing in this

section shall be construed to supplant or in any way af-

fect any prosecution that may be elected to be initiated

aye We

under any other provision of law relating to nonfeasance,

malfeasance or misfeasance of public officers.”

13, Further, charter provisions and ordinances touching

upon the activities of the defendants Wochner and Marino are

included in ordinances, as follows:

A. Ordinance 52500 of the City of St. Louis which states:

“Section One. Every person who shall 1) directly or in-

directly give, offer any money, goods, right in action or

any other valuable consideration, gratuity or reward,

or any promise, undertaking, or security therefor

to any public officer of the City of St. Louis, Missouri,

or any employee thereof with intent to influence his vote,

opinion, judgment or decision on any question, matter,

election, appointment, cause or proceeding which then

may be pending, or may be law be brought before him

in his official capacity or to induce him to neglect or omit

performance of any official duty, or to perform such duty

with partiality or favor, or otherwise than is required by

B. Ordinance 52814 of the City of St. Louis, which states:

“An ordinance amending Chapter 41 of the Revised Code

of the City of St. Louis by adding two new sections de-

fining the duties of officers and employees of the City and

providing a penalty for the violation thereof.

Be it ordained by the City of St. Louis as follows:

Section One. Chapter 41 of the Revised Code of the City

of St. Louis is hereby amended by adding two new sec-

tions thereto, to be known as Section 41.040 and Section

41.050, which shall read as follows:

Section 41.040. Additional Duties Officers and Employees.

The official duties of officers and employees of the City

shall be performed for the benefit of the public only and

shall be discharged faithfull regardless of personal con-

— A-47 —

siderations. No officer or employee shall, for private gain,

grant any special treatment or advantage to any person.

Nor shall any officer solicit or accept any payment or gift

of money or any other thing of value for any service per-

formed in his official capacity nor for the doing of any

act which he is required by law to do.

Section 41.050. Penalties and Enforcement. Any wilful

violation of any of the provisions of this ordinance shall

constitute cause for a fine of not more than five hundred

dollars ($500.00); suspension or removal from office or

employment, or other disciplinary action.”

14. There was at all times during the above actions in full

force and effect the following enacted revised statutes of the

State of Missouri:

A. “Section 558.010 Bribery of Public officials — penalty

Every person who shall, directly or indirectly, give any

money, goods, right in action or any other valuable con-

sideration, gratuity or reward, or any promise, under

taking or security therefor, to any judge or justice or any

court, magistrate, or to any member of the legislature, or

to any officer or employee thereof, or to any other public

officer or employee of this state or of any county or city,

town, township thereof: First with intent to influence

his vote, opinion, judgment, or decision on any question,

matter, election, appointment, cause or proceeding, which

may be then pending or may by law be brought before

him in his official capacity, or to induce him to neglect

or omit the performance of any official duty or to per-

form such duty with partiality or favor or otherwise than

is required by law; or, second, in consideration that any

such officer or member of the legislature has given any

vote, opinion, judgment, or decision in any particular

manner, or for any particular person, or upon any par-

ticular side or more favorable to one side than the other,

in any matter, question, election, cause or proceeding, or

has omitted to perform any official act or duty, or has

performed such act or duty with partiality or disfavor,

— A-48 —

or in anywise contrary to law, shall be deemed guilty of

bribery, and be punished by imprisonment by the depart-

ment of corrections for a term not exceeding seven years,

or by confinement in the county jail for not more than

one year, or by a fine of not more than one thousand dol-

lars, or by both the fine and confinement.”

B. Section 558,090, Solicitation of bribe by public officer or

employee, penalty.

Every judge or justice of any court, magistrate, mem-

ber of the legislature, or officer of employee thereof, and

any other public officer or employee of this state, or of

any county or city, town, township, or school district

therein, who shall, directly or indirectly, ask, or solicit,

or propose, or offer to take or receive any gift, considera-

tion, gratuity or reward: First, under any agreement that

his vote, opinion, judgment or decision shall be given for

any particular person, or in any particular manner, or

upon any particular side, or more favorable to one side

than the other in any election, matter, cause or proceed-

ing which may be pending or be brought before him in

his official capacity, or that he shall neglect or omit to

perform any official duty to perform the same with par-

tiality or favor, or otherwise than according to law; or

second, for the performance of any ange imposed upon

him by law; or third, in consideration that he will give

his vote, opinion, judgment, or decision for any particular

side, or more favorably to one side than the other; in any

question, election, matter, cause or proceeding, or neg-

lect or omit to perform any official act or duty with par-

tiality or favor, or in anywise contract to law, shall be

deemed guilty of a felony, ....”

15. There was at all times during the above action in full

force and effect the following enacted revised statutes of the

State of Missouri:

— A-49 —

A. “Section 557.100 Juror or arbitrator accepting bribe. —

If any person summoned as a juror, or if any person

chosen as an arbitrator or appointed a referee, shall take

anything to give his verdict, award or report, or shall

receive any gratuity or gift from any party to a suit, pro-

ceeding or prosecution, for the trial of which such person

shall have been summoned or sworn as a juror, or for the

hearing of which he shall have been chosen an arbitrator

or appointed a referee, he shall, on conviction, be pun-

ished in the penitentiary not exceeding five years, or in

the county jail not less than six months, or by fine not

less than one hundred dollars and imprisonment in the

county jail not less than three months.”

B. Section 557.100. Attempt to bribe juror or arbitrator.

Every person who shall corrupt, or attempt to corrupt,

any other person summoned or sworn as a juror, appointed

a referee or chosen an arbitratror, by giving or offering

to give any gift or gratuity, whatsoever, with the intent

to bias the mind of such juror, referee or arbitrator, or

incline him to be more favorable to one side than the

other, in relation to any case, matter or proceeding which

may be pending in the court to which said juror shall have

been summoned, or in which such referee or arbitrator

shall have been chosen or appointed, shall on conviction

be punished as in Section 557.100 is prescribed.”

16. That during all legal proceedings that have taken place

subsequent to the actions set forth above, the defendants,

Wochner and Marino, have enjoyed the free and gratuitous

legal services of the City Counselor of the City of St. Louis,

though there was and has been at all times herein mentioned

the following charter requirement of the said city:

“Article XVIII, Section 24. Legal remedies for payment of

unauthorized compensation ——

— A-50 —

The City counselor, or special counsel designated there-

fore by the board of aldermen, on complaint of any officer

or employee of the City or of any taxpayer, shall prose-

cute, and of his own motion may prosecute, such action

as may be appropriate to restrain the payment of salary

or other compensation to any person appointed to or

holding any position in violation of any of the provisions

of this article or the rules and ordinances thereunder, or

to recover any payment so made, and such right shall not

be limited or denied by reason of the fact that such posi-

tion shall have been classified as, or determined to be,

not subject to competitive tests. All money recovered in

any action brought under the provisions of this section

shall when collected, be paid into the treasury of the City.”

17. Plaintiffs state the unlawful acts engaged in by the de-

fendants Wochner and Marino under the color of state law

were done wilfully, maliciously, oppressively, unlawfully,

and corruptly; and against the interests and rights of plaintiffs,

and each of them; that said acts violated plaintiffs’ rights of

due process of law, impaired their rights, privileges, and im-

munities secured and guaranteed under the Constitution of the

United States of America.

18. That all of the parties holding office, either elective or

appointive within and under the laws of the State of Missouri,

and the City of St. Louis, are charged with the legal responsi-

bility and obligation of enforcing the cited statutes and ordi-

nances. Further, though they were aware of the facts and

allegations set forth above, they and each of them, have

refused and declined to assert the duties of their office in

pursuing the enforcement of said statutes and ordinances to

the harm, detriment and loss of rights, privileges, and immuni-

ties as granted by the U.S. Constitution; all of which has

—A-51 —

resulted in the denial to plaintiffs of a suitable and impartial

forum for the protection of said rights, privileges and immu-

nities.

19. The failure, default, and abdication of authority by the

parties charged with proper enforcement of law is not a bar

to the pursuit of the herein claimed remedy. Section 537.050

of the Revised Statutes of the State of Missouri states:

“537.050. Civil action not merged in criminal prosecution.—

Jn no case shall the right of action of any party in-

jured by the commission of any felony or misdemeanor

be deemed or adjudged to be merged in such felony or

misdemeanor; but he may recover the amount of damages

sustained thereby in an action to be brought before any

court or tribunal of competent jurisdiction.”

20. A. That the oppression of office, malicious and unlawful

conduct engaged in by the defendants Wochner and Marino

is continuing and ongoing in nature and scope and as a result

thereof, as to plaintiff Gore; she has been directly caused to

suffer the following actual damages, to-wit: she has been de-

prived of her rightful salary since 1973 in the sum of One

Hundred Twenty-Five Thousand ($125,000.00) Dollars; she

has been reduced in her rights of pension and retirement in an

amount yet to be determined; as an integral part of her com-

pensation she was afforded a rent free apartment, denied

to her since the year 1974 at a loss of Twelve Thousand

($12,000.00) Dollars; loss of the protection of insurance and

health care rights for which she has had to personally assume

in the sum of Seven Thousand ($7,000.00) Dollars; loss of her

professional reputation within the medical and general com-

munity, the vindication of which has been denied her, to her

damage of Two Hundred and Fifty Thousand ($250,000.00)

Dollars.

— A-52 —

B. That the oppression of office and unlawful and maliciuos

conduct engaged in by the defendants Wochner and Marino

and complained of above is continuing and ongoing in nature

and scope and as a result thereof, as to plaintiff Robinson; and

she has been directly caused to suffer the following actual

damages, to wit: she has been deprived of her rightful salary

since 1973 in the sum of One Hundred Thousand ($100,000.00)

Dollars; she has been reduced in her rights of pension and re-

tirement in an amount yet to be determined; loss of protection

of insurance and health care rights for which she had had to

personally assume in the sum of Seven Thousand $7,000.00)

Dollars; loss of her professional reputation within the medical

and general community, the vindication of which has been

denied her, to her damage of Two Hundred and Fifty Thou-

sand ($250,000.00) Dollars.

WHEREFORE, the above premises considered, plaintiff

Minnie Gore prays actual damages against the defendant R.

Dean Wochner, M.D. and Charles Marino and each of them

jointly and severally the sum of Two Hundred and Fifty Thou-

sand ($250,000.00) Dollars, actual damages and One Million

($1,000,000.00 ) Dollars punitive damages, that plaintiff Jennye

Robinson, the above premises considered, prays actual dam-

ages of Two Hundred Fifty Thousand ($250,000.00) Dollars

and punitive damages of One Million ($1,000,000.00) Dollars;

further, that plaintiffs and their attorney be awarded a reason-

able sum of money to adequately compensate them for the cost,

time and expense of bringing this action as provided for by the

Civil Rights Attorney’s Fee Award Act, 42, U.S.C, 1988.

Aa

COUNT VI

COMES NOW plaintiffs and for Count VI of their petition

state as follows, to-wit:

1. Plaintiffs hereby incorporate by reference paragraphs one

through 20 of Count V of plaintiffs’ petition as though the same

were set forth herein.

2. That the defendant, John Bass was on June 19, 1973 the

duly elected and authorized Comptroller of the City of St.

Louis, and was charged with the obligations of said Office dur-

ing the period here in question.

3. That there was in full force and effect the following rules

as part of the Civil Service Rules, to-wit: Rule XVI

“Section 1. AUDIT BY COMPTROLLER:

Prior to payment of any selary, wage, compensation,

claim, or account for personal services by Treasurer or any

other disbursing officer, the Comptroller or person desig-

nated by him shall certify that the persons named on the

payroll or account have been lawfully employed in a posi-

tion duly authorized and are 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 payrolls or accounts. The Comptroller shall not

approve any item of a payroll or account of any employee

nor issue his warrant for any payment therefor, except on

evidence satisfactory to him that employment complies

with the points stipulated above.”

“Section 2. NOTICE TO COMPTROLLER:

(a) Personnel information’ The Director shall esttablish

procedures for notifying the Comptroller without delay,

of any new positions, new employees, changes in pay or

pay” eee

status, and attendance and absence of employees and of

his approval or disapproval of such actions to be used as

basis for the conduct of the audit specified in Rule XVI,

Section 1. He shall, if so requested by the Comptroller,

make available the official roster for the purpose of making

such audits.

(b) Violation of Compensation Plan: :Whenever the Di-

rector finds that any person is employed or is proposed to

be paid as an employee in the classified service in any

amount not provided for under the provisions of Article

XVIII and any rules and ordinances in effect not incon-

sistent therewith, he shall so notify the Comptroller. After

such notice the Comptroller shall not approve any further

payment to such person except in accordance with such

provisions.”

Rule XVI. Audit of Payrolls.

4. Further, that there was in full force and effect the follow-

ing Article XV, Section 2 of the Charter of the City of St.

Louis, to-wit:

“Section 8. The Comptroller. —....The Comptroller shall

be head of the department of finance and exercise a

general supervision over its divisions, over all the fiscal

affairs of the city and over all its property, assets and

claims, and the disposition thereof. ....He shall be the

general accountant and auditor of the city and the records

in his office shall show the financial operations and condi-

tion, property assets, claims and liabilities of the city, all

expenditures authorized, and all contracts in which the

city is interested. He shall require proper fiscal accounts,

records, settlements and reports to be kept, made and ren-

dered to him by the several departments and offices of the

city,.... Except by this charter or by law or ordinance

otherwise provided he shall prescribe and regulate the

manner of paying creditors, officers and employes of the

city. He shall audit all payrolls, accounts and claims

against the city , and certify thereon the balance as stated

ow ell as

by him and draw his warrant on the treasurer therefor,

but no payroll account or claim, or any part thereof, ex-

cept for the preservation of the credit of the city, or in

case of extraordinary emergency as hereinbefore provided,

shall be audited against the city unless certified by the

officer having knowledge of the facts and authorized by

law or ordinance, and the amount required for payment

of the same appropriated for that purpose by ordinance

and in the treasury....”

5. That there was imposed upon the Comptroller as a result

of the above an affirmative obligation of reasonable inquiry

concerning the absence of plaintiff Robinson’s name upon cer-

tified payrolls submitted to the defendant Bass for all periods

subsequent to August 1, 1973, a date after plaintiff Robinson’s

last scheduled pay period; likewise, said obligation of reason-

able inquiry existed concerning the absence of plaintiff Gore’s

name upon certified payrolls after January 1, 1974. Further,

the said obligation of reasonable inquiry as stated above arose

by virtue of the following specific language of the Civil Service

Rules:

(a) Personal Information: The Director shall establish

procedures for notifying the Comptroller without delay,

of any new positions, new employees, change in pay or

status, and attendance and absence of employees and of

his approval or disapproval of such actions to be used as

basis for the conduct of the audit specified in Rule XVI,

Section 1. (pleaders’ emphasis ) Rule XVI Sec. 2(a)

6. Due to the failure of the defendant Scearce to have made

the necessary and proper investigation as set forth above, there

was as a result thereof no directive of approval or disapproval

as required above at the time the said plaintiffs’ names were

absent and missing from the certified payroll; said Rule places

an affirmative obligation upon the Comptroller of reasonable

inquiry at the time there is, inter alia, a change in pay or

status.

— A-56 —

7. Said act of affirmative reasonable inquiry is clearly im-

posed upon defendant Bass by the following sentence of the

same rule, to-wit:

“He (Scearce) shall, if so requested by the Comptroller,

make available the official roster for the purpose of making

such audit.” Rule XVI Sec. 2(a)

8. That despite the obligation of reasonable inquiry ar here-

tofore stated plaintiffs state that the defendant Bass was negli-

gent in the conduct of his office to the detriment of plaintiffs in

one or more of the following ways:

A. That the defendant Bass failed to require defendant

Scearce to faithfully, accurately, and fully comply with said

rule, by his ( Bass’s ) permitting the filing of an incomplete and,

therefore, inaccurate audit by defendant Scearce which failed

to satisfy the requirements of the rule stated above and there-

after failed or refused to inquire as to how it was incomplete.

B. That defendant Bass knowing full well the inadequateness

of the audit as filed by defendant Scearce, permitted and toler-

ated the same without « jection, and was thereby negligent.

9. As a result of the above the defendant Bass approved the

payrolls and accounts as submitted without demanding the

defendant Scearce comply with this duty, thereby directly and

proximately causing plaintiffs, and each of them, a loss of their

right to having a proper investigation of the properiety of the

appointing authorities act of terminating said plaintiffs. Fur-

ther, the defendant Bass should have refused to issue his

warrant for the payment of any payroll or account until a

proper submission of audit was made by defendant Scearce as

required.

" — A-57 —

10. As a direct and proximate result of defendant Bass’s

negligence as set forth above, the plaintiffs and each of them

were injured and damaged in an amount equal to the loss of

their respective salaries from the date of said negligent acts,

namely August 1, 1973 and June 1, 1974, respectively, as

avered until October 20, 1975, in the sum of Thirty Five Thou-

sand ($35,000.00) Dollars as to plaintiff Robinson, and Forty

Five Thousand ($45,000.00) Dollars as to plaintiff Gore.

WHERETOFORE, plaintiff Robinson prays special damages

against the defendant Bass individually and in his official capa-

city as Comptroller for the City of St. Louis for her lost wages

in the sum of Thirty-Five Thousand ($35,000.00) Dollars,

from August 1, 1973 to October 20, 1975; for actual damages

for her humiliation and disgrace professionally and personally

in the sum of Two Hundred and Twenty-Five Thousand

($225,000.00) Dollars, and punitive damages in the sum of

Two Hundred Twenty-Five Thousand ($225,000.00) Dollars;

plaintiff Gore prays special damages in the sum of Forty-Five

Thousand ($45,000.00) Dollars lost wages from January 1,

1974 to October 20, 1975, and actual damages for her humilia-

tion and disgrace in the sum of Two Hundred and Twenty-Five

Thousand ($225,000.00) Dollars, punitive damages in the sum

£ Two Hundred and Twenty-Five Thousand ($225,000.00)

Dollars; further, that plaintiffs and their attorney be awarded

a reasonable sum of: money to adequately compensate them for

the cost, time and expense of bringing this action as provided

for by the Civil Rights Attorney’s Fee Award Act, 42 U.S.C,

1988.

— A-58 —

COUNT VII

COMES NOW the plaintiffs and for their cause of action

in Count VII state and aver as follows, to-wit:

1. Plaintiff incorporated herein as plead paragraph one

through ten of Count VI.

2. There was at all times here mentioned in full force and

effect the following provisions of the Charter of the City of St.

Louis, to-wit:

“ARTICLE XVIII. Civil Service

Section 1. Definitions. — The terms defined in this section,

when used in this article, have the following meanings ex-

cept 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

delegated authority, to make appointments to any position

in the city service.

(b) “City Service” or “service of the city” means all

tions as herein defined, that are subject to control and

regulation by the City of St. Louis as a municipal corpora-

tion or any of its officers or other agencies as such.

(c) “Class” or “class of positions” means a definitely rec-

ognized kind of employment in the classified service de-

signed to embrace all positions sufficiently alike to be

treated alike.

(d) “Classified service” means all positions in the city

service 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 employee by reason of service in any

position, but does not include any allowances for expenses

authorized and incurred as incidents to employment.

— A-59 —

(f) “Competitive position” means any position in the

classified service not expressly designated as an excepted

position in this section.

(h) “Excepted position” means any position in the classi-

fied service not subject to the provisions of this article

requiring competitive tests of fitness for appointment and

such other provisions as, by their terms, apply specifically

to competitive positions alone. All such positions, how-

ever, shall be subject to all the other provisions of this

article insofar as consistent with law and with this excep-

tion. Thhe following described positions, and no other,

shall be deemed to be excepted positions:

(1) all positions filled by election by the people;

(2) all positions of heads of principal departments and

of independent agencies, that are filled by appoint-

ment by the mayor;

(3) one position of executive secretary and one posi-

tion of secretary and stenographer to the mayor;

(4) all positions of paid members of the boards;

(5) all officers and employes of the board of aldermen.

(m) “Unclassified service” means all positions not subject

to the provisions of the charter, ordinances and civil serv-

ice rules relating exclusively to positions in the classified

service, and includes positions, as follows, and no others:

(1) all positions of members of boards, commissions

or committees serving without cormpensation;

(3) all other positions in which services are rendered

without compensation;

(3) all officers and employes of the board of aldermen.

3. There was at all times hereinafter mentioned in full force

and effect the following provisions of the Charter of the City

of St. Louis, to-wit:

“Article XVIII, Section 3. Scope of Civil Service Rules — To

give effect to the purpose and requirements set forth in the

— A-60 —

next preceeding section, the Civil Service Rules herein-

after required to be adopted shall provide for the follow-

ing things, among others, with relation to the classified

service as defined herein:

(q) Roster of employes.|— For maintenance of a com-

plete official roster of employes showing for each rr

er, his name, address, class title, rate of pay, and changes

in any of them, and such other information as may be

deemed desirable.

(s) Reports by appointing officers.— For reports by

appointing officers of new positions and changes in the

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 compliance with this article

and the rules and ordinances thereunder.”

4, That as a result of the above and foregoing rule-making

authority, the following Rules was properly adopted and were

at all times here mentioned in full force and effect, to-wit,

Civil Service Rules, Rule XVI

“Section 1. AUDIT BY COMPTROLLER:

Prior to payment of any salary, wage, compensation,

claim, or account for personal services by Treasurer or any

other disbursing officer, the Comptroller or person desig-

nated by him shall certify that the persons named on the

payroll or account have been lawfully employed in a

position duly authorized and are 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 payrolls or accounts. The Comptroller

shall not approve any item of a payroll or account of any

employee nor issue his warrant for any payment therefor,

except on evidence satisfactory to him that employment

complies with the points stipulated above.”

“Section 2. NOTICE TO COMPTROLLER:

(a) Personnel information: The Director shall establish

procedures for notifying the Comptroller without delay,

— A-61 —

of any new positions, new employees, changes in pay or

status, and attendance and absence of employees and of

his approval or disapproval of such actions to be used as

basis for the conduct of the audit specified in Rule XVI,

Section 1. He shall, if so requested by the Comptroller,

make available the official roster for the purpose of making

such audits.

(b) Violation of Compensation Plan: Whenever the Di--

rector finds that any person is employed or is proposed to

be paid as an employee in the classified service in any

amount not provided for under the provisions of Article

XVIII and any rules and ordinances in effect not inconsis-

tent therewith, he shall so notify the Comptroller. After

such notice the Comptroller shall not approve any further

payment to such person except in accordance with such

provisions.” Rule XVI. Audit of Payrolls.

5. That as a direct result of a certain corrupt and illegal

agreement between defendants Wochner and Marino, as pre-

viously described, the defendant Marino ostensibly became a

“new employee” as described by the Civil Service Commission

Rules, and that additionally as a condition of certification on

the payroll the name of defendant Marino would have had

to appear on the Roster of Employees defined above.

6. That the defendant Scearce was wilfully and intentionally

negligent in the operation of the Department of Personnel

by permitting the name of defendant Marino to appear on

the list of personnel of the City of St. Louis, certified for pay-

roll, as stated in said Civil Service Rules and Regulations when

he, defendant Scearce, knew or should have known that said

defendant Marino did not qualify as holding a position in the

classified service, or any excepted position or unclassified serv-

ice heretofore defined.

7. That as a direct and proximate result of the wilfull and

intentional acts of the defendant Scearce in his failure to per-

— A-62 —

form the duties of his office, the corrupt and unlawful fiscal

arrangement between defendants Wochner and Marino was

not terminated; that as a result of defendant Scearce’s negli-

gence, he did ratify, condone, and adopt the payroll certifica-

tion of defendant Marino as proper, and by his official acts of

certifying said payroll demonstrated a policy, custom, and

usage of his office that favored and promoted a selective, arbi-

trary and capricious enforcement of the Charter of the City of

St. Louis, and the Civil Service Rule adopted pursuant thereto;

all to the harm, detriment, and damage of plaintiff's rights,

privileges and immunities secured and guaranteed by the

Constitution of the United States of America.

WHERETOFORE, plaintiff Robinson prays special dam-

ages against the defendant Scearce individually and in his

official capacity as Comptroller for the City of St. Louis for

her lost wages in the sum of Thirty-Five Thousand ($35,-

000.00) Dollars, from August 1, 1973 to October 20, 1975; for

actual damages for her humiliation and disgrace profession-

ally and personally in the sum of Two Hundred and Twenty-

Five Thousand ($225,000.00) Dollars, and punitive damages

in the sum of Two Hundred Twenty-Five Thousand ($225,-

000.00) Dollars; plaintiff Gore prays special damages in the

sum of Forty Thousand ($40,000.00) Dollars lost wages from

January 1, 1974 to October 20, 1975, and actual damages for

her humiliation and disgrace in the sum of Two Hundred and

Twenty-Five Thousand ($225,000.00) Dollars, punitive dam-

ages in the sum of Two Hnurded and Twenty-Five Thousand

($225,000.00) Dollars; further, that plaintiffs and their at-

torney be awarded a reasonable sum of money ot adequately

compensate them for the cost, time and expense of bringing

this action as provided for by the Civil Rights Attorney’s Fee

Award Act, 42, U.S.C. 1988.

om A-G3 a

COUNT VIII

COMES NOW the plaintiffs and for Count VIII of their

petition state as follows, to-wit:

1. Plaintiffs replead and incorporate herein as plead para-

graphs one through seven of Count VII of said peititon.

2. Defendant John Bass continued in his capacity as Comp-

troller of the City of St. Louis as aforementioned until April,

1977 at which time he was succeeded by the duly-elected

Comptroller of the City of St. Louis, Raymond Percich.

3. Defendant Raymond Percich is a resident of the City of

St. Louis, State of Missouri and resides within the jurisdiction

of this court and is here sued both individually and in his

official capacity as the duly-elected Comptroller of the City of

St. Louis, State of Missouri.

4. That the Comptroller had the duty under said City

Charter aad Rule XVI of the Civil Service Rules, of reason-

able inquiry concerning the presence of defendant Marino’s

name upon certified payrolls sumbitted to the defendant Bass

for all periods subsequent to October 20, 1975 to the date

after defendant Marino’s first scheduled pay period. The said

duty of reasonable inquiry as stated is by virtue of the fol-

lowing:

(a) Personal Information: The Director shall establish

procedures for notifying the Comptroller without delay,

of any new positions, new employees, change in pay or

status, and attendance and absence of employees and of

his approval or disapproval of such actions to be used as

basis for the conduct of the audit. Sepcified in Rule XVI

Section 1. (pleaders’ emphasis )

aes ty Ve

5. There was in full force and effect the following provision

of the Charter of the City of St. Louis, being part of Article

XV, Section 2.

“....Except as by this charter or by law or ordinance

otherwise provided he shall prescribe and regulate the

manner of paying creditors, officers and employes of the

city. He shall audit all payrolls, accounts and claims

against the city, and certify thereon the balance as stated

by him and draw his warrant on the treasurer therefor, but

no payroll, account or claim, or any part thereof, except

for the preservation of the credit of the city, or in case of

extraordinary emergency as herein before provided, shall

be audited against the city unless certified by the officer

having knowledge of the facts and authorized by law or

ordinance, and the amount required for payment of the

same appropriated for that purpose by ordinance and in

the treasury....”

6. Due to the failure of the defendant Scearce to investi-

gate as set forth above, there was a result thereof no directive

of approval or disapproval as required above at the time the

said plaintiffs’ names were absent and missing from the certi-

fied payroll; and that said Charter provision and Rules places

an affirmative obligation upon the Comptroller of reasonable

inquiry at any time there is, inter alia, a new employee upon

the certified payroll.

7. Said act of affirmative reasonable inquiry is clearly im-

posed upon defendant Bass by the following sentence of the

same rule, to-wit:

“He (Scearce) shall if so requested by the Comptroller,

make available the official roster for the purpose of mak-

ing such audit.”

8. That defendant Bass was negligent in failing to make

reasonable inquiry, as heretofore stated, in the conduct of his

office to the detriment of plaintiffs.

nD i

Further, that had the defendant Bass made reasonable in-

quiry as required; he would have known or should have known

that said defendant Marino was not an employee of the City

of St. Louis in either the classified service as hereafter de-

fined, nor was he employed in the “unclassified service” as

hereafter defined.

9. Article XVIII, Section 1 (b,c, and d) of the Charter of

the City of St. Louis, entitled Civil Service, states as follows,

to-wit:

“Section 1. Definitions.—The terms defined in this section,

when used in this article, have the following meanings

except where the context clearly requires otherwise:

(b) “City service” or “service to the city” means all posi-

tions as herein defined, that are subject to control and

regulation by the City of St. Louis as a municipal corpora-

tion of any of its officers or other agencies as such.

(c) “Class” or “class of positions” means a definitely

recognized 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

service except those specifically placed in the unclassified

service as herein defined.”

10. Article XVIII, Section 1(m) of the Charter of the City

of St. Louis, states as follows, to-wit:

(m) “Unclassified service” means all positions not subject

to the provisions of the charter, ordinances and civil serv-

ice rules relating exclusively to positiions in the classified

service and includes 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

without compensati .on

on. Aa si

(3) all officers and employes of the board of aldermen.

11. That the above an foregoing definations of classified and

unclassified service are mutually exclusive in nature, scope and

effect, and that the defendant Bass’s failure to inquire caused

him to make payment to the defendant Marino without proper

authority or authorization.

12. That the only manner of payment contemplated or au-

thorized by the Charter of the City of St. Louis, other than

the categories heretofore stated, is by contract between the

City of St. Louis and a contracting party. That said contract

relationships are for all purposes subject to the provisions of

Article XXV Section 9, of the Charter of the City of St. Louis,

which reads as follows, to-wit:

“Section 9. Execution of City’s contracts. — All contracts

relating ot city affairs shall be in writing, signed and exe-

cuted in the name of the city. In cases not otherwise

provided by law or ordinance, they shall be made by the

comptroller, and in no case by the board of aldermen or

any committee thereof. Contracts not made by the comp-

troller shall be countersigned by him, and all contracts

shall be filed and registered by number, date and contents

with the register.”

13, That since the defendant Bass neither authorized or

approved any type of employment or consultant contract be-

tween the City of St. Louis and the defendant Marino, now

was any such contract en file in the office of the City Register

as provided; the defendant Bass’s investigation as required

and provided by said Civil Service Rules would have revealed

that defendant Marino was not properly or legally an em-

ployee of the City of St. Louis, since proported position held

by defendant Marino was not within the classified positions

of the City of St. Louis, and the alleged contract, plaintiffs

exhibit “A” was nothing more than a personal retainer or

ment between Wochner and Marino.

ie laa 2

14, That as a direct and proximate result of the above and

foregoing negligence of defendant Bass in his failure to per-

form the duties of his office, the corrupt and unlawful fiscal

arrangement entered by defendants Wochner and Marino was

not brought to an end. Further, that, as a result defendant

Bass ratified and adopted the payroll certification of defendant

Marino in his official capacity, demonstrating his acquiesence

in the selective enforcement of the Charter of the City of St.

Louis, ordinances exacted in pursuance thereof, and the Rules

of the Civil Service Commission; and that the arbitrary, ca-

pricious, and high handed manner in which the Director of

Personnel operated said Department was thereby approved

by the defendant Bass, who thereby adopted and ratified the

manner, custom, usage, and policy of said Director of Per-

sonnel in the management of his office and in his administra-

tion of the Department of Personnel.

15. That defendant Bass continued to negligently, and care-

lessly fail to perform the duties of his office to April, 1977

when the citizens of the City of St. Louis, State of Missouri,

voted in his successor Raymond Percich, as Comptroller of the

‘City of St. Louis, State of Missouri.

16. That Defdenant Percich, upon assuming the duties and

responsibilities of his position as Comptroller of the City of

St. Louis, State of Missouri in April, 1977, represented and

stated that he was familiar with all aspects of the duties and

responsibilities of his ‘office and was aware and informed of

the City of St. Louis, State of Missouri fiscal conditions. Fur

ther, he represented that the accounts of his office conformed

with the requirements of the aforementioned Charter require-

ments, odinances enacted pursuant thereto.

17. That by said statements and assertations defendant Per-

cich admitted that he had actual or constructive knowledge of

the negligence of defendant Scearce in the fulfillment of his

ae aes

duties as herein plead concerning the corrupt and illegal»em-

ployment of defendant Marino. Further, that as a result de-

fendant Percich ratified and adopted the payroll certification

of defendant Marino in his official capacity, demonstrated a

similar acquiesence in and adoption of the custom, usage, and

policy as alleged against his predecssor in time, defendant

Bass, with respect to the conduct of his office.

WHERETOFORE, plaintiff Robinson prays special dam-

ages against the defendant Bass and defendant Percich and

each of them individually and in his official capacity, for her

lost wages in the sum of Thirty-Five Thousand ($35,000.00)

Dollars, from August 1, 1973 to October 20, 1975; for actual

damages for her humiliation and disgrace professionally and

personally in the sum of Two Hundred and Twenty-Five

Thousand ($225,000.00) Dollars, and punitive damages in the

sum of Two Hundred Twenty-Five Thousand ($225,000.00)

Dollars; plaintiff Gore prays special damages in the sum of

Thirty-Six Thousand ($36,000.00) Dollars lost wages from

January 1, 1974 to October 20, 1975, and actual damages for

her humiliation and disgrace in the sum of Two Hundred and

Twenty-Five Thousand ($225,000.00) Dollars, punitive dam-

ages in the sum of Two Hundred and Twenty-Five Thousand

($225,000.00) Dollars; further, that plaintiffs and their attor-

ney be awarded a reasonable sum of money to adequately

compensated them for the cost, time and expense of bringing

this action as provided for by the Civil Rights Attorney’s Fee

Award Act, 42 U.S.C. 1988.

—- At —

COUNT IX

COMES NOW plaintiffs and for Count IX of their petition

state as follows, to-wit:

1. Plaintiffs hereby incorporate by reference paragraphs

one through seventeen of Count VIII of plaintiffs’ petition as

though the same were set forth herein.

2. There was at all times here mentioned in full force and

effect the following statutes of the State of Missouri, namely

Section 73.470 R.S.Mo. (1969), which states as follows:

73.470, Officers shall take oath — Mayor to issue certifi-

cate — certain officers to give bond —

Every officer of the City, before entering upon the du-

ties of his office, shall take and subscribe to an oath before

some officer of the law authorized to administer oaths as

prescribed by the constitution of this State for civil officers,

and that he will faithfully support all laws and ordinances

of the city. The Mayor shall then issue to such officer 2

certificate of election or appointment, and such oath shall

be endorsed thereon or attached thereto. Every officer,

except the Mayor, councilmen, and police judge, shall,

before entering upon the duties of his office, give bond to

the city in such sum as may be prescribed by ordinance,

unless otherwise prescribed by this chapter. Said bond

shall be approved by the comptroller and filed with the

city clerk. For any breach of the condition of said bond,

suit may be instituted thereon by the city, or by any per-

son or persons claiming to have been injured by reason of

such breach, in the name of such city, for the use of such

person or persons.”

3. That plaintiffs here allege and avert that they have caused

the institution of this complaint to be brought by the State

of Missouri by their relation due to the following duly en-

acted statutes of the State of Missouri:

— A-70 —

A. “522.010. Persons injured may proceed against princi-

pals or sureties, how — Persons injured by the neglect or

misfeasance of any officer may proceed against such prin-

cipal or any one or more of his sureties, jointly or severally,

in any proceeding authorized by law against such officer

for official neglect or injury.”

B. “522.020. Suits on official bonds — in whose name to

be brought in — In all cases where, by the law of this state,

any person is authorized to prosecute a suit to his own

use, on any Official bond, he shall sue in the name of the

state, or other obligee named in the bond, stating the

~ process, pleadings, proceedings and record in such action,

that the same is brought at the relation and to the use of

the person so suing.”

4, That the defendant Poelker during his term of office

(1973-1977) and his successor of title as Mayor, defendant

Conway, though required and mandated under the above

statute to require the posting of a bond for all appointees,

failed and neglected to require compliance with the above

statute and wilfully and intentionally ignored same.

5. That as a direct and proximate result of the failure of

said defendants Poelker and Conway to require compliance

with the above cited statutes, the plaintiffs have suffered a loss

of opportunity to enforce their grievances against the entity,

that by statute should be legally obligated to said plaintiffs,

as a result of the wilful neglect of said aforementioned de-

fendants as alleged in Count I through Count VIII.

WHEREFORE, the premises considered, plaintiffs pray

judgment against the defendants Poelker and Conway indi-

vidually and in their official capacity in the sum of One Hun-

dred and Thirty-Five Thousand ($135,000.00) Dollars as to

plaintiff Robinson; the sum of One Hundred and Forty Thou-

sand ($140,000.00) Dollars as to plaintiff Gore; further, that

plaintiffs and their attorney be awarded a reasonable sum of

— A-71 —

money to adequately compensate them for the cost, time and

expense of bringing this action as provided for by the Civil

Rights Attorney’s Fee Award Act, 42 U.S.C. 1988.

COUNT X

COMES NOW pliantiffs and for Count X of their petition

state as follows, to-wit:

1, Plaintiffs hereby incorporate by reference paragraphs one

through five of Count IX of plaintiffs’ petition as though the

same were set forth herein.

2. All herein named defendants to-wit: R. Dean Wochner,

M.D., Fred Gould, David V. Essex, Sr., Charles Marino, John

Poelker, John Bass, R. Elliott Scearce, James Conway, Ray-

mond Percich, William Duffe, Robert Cummings, The City of

St. Louis, The Civil Service Commission, and The Depart-

ment of Personnel, are former or present holders of elective

or appointive office under the Charter of the defendant City

of St. Louis and were at all times here mentioned acting under

color of state law.

3. This count is for declaratory and injunctive relief and

for damages. The rights, privileges and immunities sought to

be declared and redressed are those secured by and through

the Fourteenth Amendment to the United States Constitution.

4. This Count seeks a judgment declaring that the custom,

usage, and policy of the defendants in their agreed to and

selective use of the Charter, Ordinances and Rules above

cited contervenes the constitutional rights, privileges and im-

munities of plaintiffs. This proceeding also seeks an injunction

against said individuals, and said defendant City, enjoining

them from their agreed-upon selective, arbitrary and capricious

— A-72 —

use in the administration of the cited Charter, Ordinances and

Rules as well as damages resulting from said practices which

have become the custom, policy, and usage of said City.

5. Despite the truth and knowledge of facts plead and con-

tained in the foregoing Counts of this petition, all of which

were known to the named defendants, they have refused and

continue to refuse to correct, rectify, or change the admin-

istration of the cited charter ordinances and rules, which by

all of the defendants use thereof have become the policy,

usage, and custom of said City which has affected plaintiffs’.

6. All named defendants aforementioned acted under the

color of law as agents and employees of said City in their re-

fusal to correct, rectify, or alter the termination of plaintiffs

and they thereby deprived plaintiffs of the rights, privileges

and immunities secured to them by the First and Fourteenth

Amendments to the Constitution.

7. As a direct and proximate result of the acts as set forth

plaintiffs have been denied a legal, objective, and unbiased

forum in which to adjudicate their innocence of the serious

charges as leveled by Dr. Wochner, and have been directly

damaged by the failure of the aforementioned office holder

to fulfill their Charter and Ordinance duties and obligations

of their respective offices as previously plead; all of which

inure to the detriment of the plaintiffs’ due to the activities

complained of since June 1973 when the unsubstantiated

charges were preferred by Dr. Wochner.

— A-73 —

8. Plaintiffs Robinson and Gore have loss wages due them

in the following approximate amounts:

Gore Robinson

1973 $ 8,000.00

1974 $ 12,000.00 $ 12€°0.00

1975 $ 20,000.00 $ 18,500.00

1976 $ 22,000.00 $ 19,000.00

1977 $ 24,000.00 $ 20,000.00

1978 $ 24,000.00 $ 20,000.00

$102,000.00 $102,500.00

9. Money damages alone cannot remedy the irreparable

harm done by the plaintiffs’ loss of privileges and immunities,

due process of law as well as the denial of equal protection of

the laws described above. No adequate remedy exists at law

for redress of those deprivations which continue to occur and

will occur in the future unless enjoined by this court.

10. An emergency exists in that the continual denial of the

rights to the due process and equal protection of laws which

have already irrevocably deprived plaintiffs of their job se-

curity and employment positions as stated and that some fu-

ture resoration of rights cannot adequately restore or compen-

sate plaintiffs, and particularly plaintiff Gore who faces a

mandatory retirement; but, further, that the stigma of their

dismissal, coupled with the continual denial of their consti-

tutional protected rights to a fair and impartial hearing, has

cast them into a void of unemployability by the very nature

of their profession and calling which said fact cannot be re-

lieved saved by this court.

— A-74 —

WHEREFORE, plaintiffs demand judgment:

1. Declaring the actions of the aforementioned defendants,

the City of St. Louis its departments and its agency, in refus-

ing plaintiffs reemployment or restoration of pay until a duly

qualified hearing is structured to redress their grievances as

provided by law, are acts done under color of law, are illegal

and unconstitutional;

2. Entering a plenary and permanent injunction directing

and enjoining the City of St. Louis, their agents, employees,

and all persons, in active concert and participation with them,

from the selectively, arbitrarily, capriciously, and illegally en-

forcing the Charter, Ordinances, and Rules of the said City

that have by the acts of the defendants became the custom,

policy, and usage of said City in the application of said Char-

ter, Ordinances, and Rules.

3. Award damages in the amount of One Hundred and Five

Thousand ($105,000.00) Dollars to each plaintiff for their cur-

rent salary losses to date.

4. Further, to reinstate plaintiffs to their former positions

with the Department of Health and Hospitals within the City

of St. Louis, State of Missouri, with commensurate pay and

allowances to date as if they had been employed in the in-

terim, restoration of fringe benefits, including but not limited

to their respective pension rights.

5. Award plaintiffs the reasonable cost of this action in-

cluding attorney fees, as provided for by the Civil Rights At-

torney’s Fee Award Act, 42 U.S.C, 1988.

6. Granting plaintiff such other and further relief as may

be deemed just and proper.

— A-75 —

Respectfully submitted,

By: STEPHEN J. NANGLE/ss/

Co-Counsel for Plaintiffs

226 South Meramec, Suite 204

Clayton, Missouri 63105

(314) 725-4114

and

JOHN J. RELLES

Co-Counsel for Plaintiffs

1108 Olive

St. Louis, Missouri 63141

(314) 421-4242

Plaintiffs’ Exhibit “A”

City of St. Louis

DEPARTMENT OF HEALTH AND HOSPITALS

OFFICE OF THE DIRECTOR

1625 South 14th Street — St. Louis, Missouri 63104

John H. Poelker, Mayor R. Dean Wochner, Director

October 17, 1975

Mr. Charles J. Marino

7161 Lindenwood Ave.

St. Louis, Missouri 63109

Dear Mr. Marino:

This is to confirm our agreement under which you are to be

retained as an Executive Assistant on my staff. This position is

to have a salary equivalent to an annual wage of $17,000 per

yer, paid on a bi-weekly basis, and the duration of this agree-

— A-76 —

ment is indefinite at the present time. In this position, you will

report directly to me, and the responsibilities will be those as

outlined in the attached job description.

I look forward to working with you in this role and I am sure

it will be of assistance to our entire Department as we attempt

to provide better solutions to some of the problems we have

been experiencing in providing patient care.

Please indicate your agreement to this arrangement by signing

in the space provided below.

Sincerely,

/s/ R. DEAN WOCHNER, M.D.

R. Dean Wochner, M.D., Director

Department of Health and Hospitals

RDW:gp

Enclosure

/s/ CHARLES J. MARINO

Charles J. Marino

cc—Hon. John H. Poelker, Mayor

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