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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