State of Missouri, ex rel., John Young, Respondent, v. City of St. Charles, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, ex rel., John Young, Respondent, v. City of St. Charles, Appellant. Case Number: 72566 Handdown Date: 02/10/1998 Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff Counsel for Appellant: Kevin M. O'Keefe Counsel for Respondent: Richard Andrew Barry II Opinion Summary: City of St. Charles ("City") appeals from the St. Charles County circuit court's judgment that issued a writ of mandamus directing City to issue pre-hearing deposition subpoenas at respondent John Young's request. City first alleges mandamus was unavailable because this was a "contested case" and further, Young had not exhausted his administrative remedies. Second, City claims mandamus was unavailable because Young had no clearly established and presently existing right to pre-hearing deposition subpoenas. AFFIRMED IN PART, QUASHED IN PART. Division One holds: The trial court did not err in issuing a writ of mandamus where (1) though the matter was a "contested case," the writ was sought pursuant to the denial of a request for discovery rather than sought to review a decision following a hearing; and (2) Young had a clearly established and presently existing right to the subpoenas because the City's charter creating the Personnel Board had the force and effect of a legislative enactment and, therefore, the Board was an "agency" for purposes of RSMo sections 536.073.1 and 536.077. Citation: Opinion Author: Gary M. Gaertner, Judge Opinion Vote: AFFIRMED IN PART, QUASHED IN PART. Grimm, P.J., and Pudlowski, J., concur. Opinion:

Appellant, City of St. Charles ("City"), appeals from the judgment of the Circuit Court of St. Charles County wherein it issued a writ of mandamus directing City to issue pre-hearing deposition subpoenas at the request of respondent, John Young. We affirm in part and quash in part. Young was a police officer with the Police Department of the City of St. Charles. On August 1, 1996, Young was dismissed from the Department by order of the Chief of Police, David King.(FN1) Young appealed his dismissal to the City Administrator, as provided in section 14.3 of the Employee Personnel Manual for the City of St. Charles ("Personnel Manual"). The City Administrator upheld Young's dismissal. Thereafter, Young filed a request for a hearing before the Personnel Board of the City of St. Charles ("Personnel Board"), as provided in section 14.4(b) of the Personnel Manual. On September 10, 1996, prior to the Personnel Board setting the matter for a hearing, Young served notices of deposition upon Chief King and Captain Jack Banas. City informed Young that King and Banas would not consent to having their depositions taken. City subsequently filed a motion to quash the depositions in which it alleged Young cited no authority in support of his discovery request and contended Young was attempting to reach information that was not accessible. On September 27, 1996, the Personnel Board issued its "Order Refusing to Issue Subpoenas for Depositions." On October 23, 1996, Young sent a notice of deposition to City's attorney seeking to depose William Storer, a handwriting expert whom King and Banas claimed told them Young had falsified papers he submitted while defending the disciplinary action.(FN2) Prior to the date of Storer's scheduled deposition, City filed a motion to quash the deposition of Storer setting out the same argument made in its motion to quash the depositions of King and Banas.(FN3) Young thereafter requested the Personnel Board issue subpoenas to compel the attendance of Storer at a pre-hearing deposition.(FN4) Young subsequently filed a Petition for Writ of Mandamus with the St. Charles County Circuit Court alleging he had a "clear legal right" to take the discovery depositions of King, Banas, and Storer, and alleging City, through its Personnel Board, had a "clear legal duty" to issue the subpoenas. On April 17, 1997, the trial court issued a writ of mandamus against City and all of its representatives, directing the Personnel Board to issue subpoenas no later than sixty days from the date of the order to compel the attendance of witnesses King, Banas, and Storer at the pre-hearing depositions. The trial court further ordered the Personnel Board was not to convene Young's hearing until thirty days after the depositions of the

above witnesses had been taken. City appeals the trial court's issuance of the writ of mandamus raising two points. City's first point alleges mandamus was unavailable because this was a "contested case" and further, Young had not exhausted his administrative remedies. City's second point claims mandamus was unavailable because Young had no clearly established and presently existing right to pre-hearing deposition subpoenas. We address the second point first. Mandamus is available to compel performance of a particular act by a party who has an unequivocal duty to perform the act. State ex rel.Treasurer v. Siedlik, 851 S.W.2d 80, 81 (Mo.App.E.D. 1993). "The right to be enforced must be clearly established and presently existing." Id. We review the grant of a writ of mandamus under an abuse of discretion standard. Bluffs Golf Joint v. St. Charles Bd. of Equal, 943 S.W.2d 752, 754-755 (Mo.App.E.D. 1997). "A writ of mandamus will not be reversed where it appears to have been lawfully exercised and no abuse is shown." Id. Young claimed he had a "clear legal right" to take discovery depositions, and further claimed the Personnel Board had a "clear legal duty" to issue subpoenas to compel the witnesses to attend the discovery depositions, based upon the following statutory provisions: In any contested case before an agency created by the constitution or state statute, any party may take and use depositions in the same manner, . . . [as] in civil actions in the circuit court . . . RSMo section 536.073.1 (1994)(emphasis ours). In any contested case before an agency created by the constitution or state statute, such agency shall upon the request of any party issue subpoenas. . . . RSMo section 536.077 (1994)(emphasis ours). City's argument, in essence, is that the Personnel Board is not an "agency," as defined by RSMo sections 536.073.1 and 536.077 because it was not "created by the constitution or state statute." We are not persuaded. "Municipal charters are adopted by a vote of the citizens of a municipality." State ex rel. Childress v. Anderson, 865 S.W.2d 384, 387 (Mo.App.S.D. 1993). Charter cities have the right to legislate for themselves and, "[i]f consistent with and subject to the constitution and laws of this state, charter provisions have the force and effect of enactments of the legislature." Id. See also Bueche v. Kansas City, 492 S.W.2d 835, 842 (Mo.banc 1973). City adopted its charter in 1981. Section 7.9 of City's charter authorized the creation of its Personnel Board. The provision of City's charter creating the Personnel Board had the force and effect of an enactment of the legislature. Accordingly, City's Personnel Board was "an agency" for purposes of RSMo sections 536.073.1

and 536.077. Young, therefore, had a right pursuant to those provisions to request subpoenas to compel attendance of witnesses at pre-hearing depositions, and the Personnel Board was required to issue those subpoenas. The above finding is consistent with this Court's decision in Tullock v. City of St. Charles, 602 S.W.2d 860, 862 (Mo.App.E.D. 1980), in which we noted a right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know and meet the claims of the opposing party. In Tullock, we affirmed the judgment of the trial court which found Tullock, a police officer, was denied a fair hearing and due process by virtue of the fact he was denied the opportunity to see an investigation report used against him prior to his hearing before the police and fire personnel board. In the case at hand, to require Young to attend his hearing before the Personnel Board without having the opportunity to depose the witnesses who will testify against him would deny Young his right to a "fair hearing." We now address the allegation, raised in City's first point on appeal, that Young was not entitled to mandamus because this was a contested matter. City appears to be arguing mandamus is not available for the sole reason that this is a "contested matter." We disagree. The parties stipulated this was a contested matter. That, however, does not decide the matter. The cases City relies upon are cases in which mandamus was denied following a hearing after which a decision was rendered. Such is not the case here and serves to distinguish this case from the cases City relies upon. We do not have before us the review of a decision following a hearing; instead, we are asked to review a discovery order. Therefore, RSMo section 536.140(1994) which does not provide for mandamus as a method to review an agency decision following a hearing is not applicable and does not serve to bar mandamus in this instance. City also argues, within its first point on appeal, Young was not entitled to mandamus because he had not exhausted his administrative remedies. Again, we are not persuaded. City's suggestion Young must attend his hearing before the Personnel Board without having had the opportunity to conduct discovery, then appeal any adverse decision is contrary to the requirement Young be afforded a fair hearing. See Tullock, 602 S.W.2d at 862-63. We do, however, find the matter premature with respect to the deposition of Storer. The record reveals the Personnel Board has not ruled on City's motion to quash Storer's deposition, nor has it ruled on Young's request for a subpoena to compel Storer's attendance at his deposition. Therefore, we quash that portion of the writ compelling City to issue a deposition subpoena for Storer. Footnotes:

FN1. During oral argument, counsel stated Young had been dismissed for working a second job without prior approval. FN2. During oral arguments, counsel for City stated Young falsified the documents which he claimed authorized him to work a second job. FN3. The record indicates the Personnel Board has not ruled on the motion. FN4. The record indicates the Personnel Board has not ruled on the request. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.