Herbert Morrison v. Karen Goodwin, City Clerk for the City of Florissant, Missouri

• Court: Missouri Court of Appeals
• Decided: May 16, 2023
• Docket: ED110776
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FIVE

HERBERT MORRISON, ) No. ED110776 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Hon. Nancy Watkins McLaughlin KAREN GOODWIN, CITY CLERK FOR ) THE CITY OF FLORISSANT, MISSOURI, ) ) Respondent. ) FILED: May 16, 2023

Introduction

Herbert Morrison (“Morrison”) appeals from the trial court’s judgment dismissing his

action seeking to compel the city clerk, Karen Goodwin (“Clerk Goodwin”), of the City of

Florissant (the “City”) to process his complaint of police misconduct. Morrison raises seven

points on appeal. Because Clerk Goodwin no longer has authority to receive or forward

complaints of police misconduct under the applicable City ordinance, Morrison’s claim is moot.

Therefore, we do not have jurisdiction over the case and do not reach the merits of his

arguments. Accordingly, we dismiss the appeal.

Factual and Procedural History

On December 14, 2020, the City enacted Ordinance No. 8657,1 which added Section

125.270 to the Florissant Code of Ordinances, thereby establishing a Citizens Police Review

1 All Ordinance references are to the Code of the City of Florissant, Missouri. Board (the “Board”). Section 125.270 allowed individuals to file complaints concerning police

officer misconduct. Section 125.270 defined a “complaint” as “a written statement alleging

misconduct of a police officer or employee of the police department involving interaction with

the public[.]” Under the 2020 version of Section 125.270, complaints could be filed with the

Florissant Police Department (the “Police Department”), the Board, or the city clerk.

By establishing the Board, the City replaced Police Department General Orders 3-4,

Complaint Policy (“General Orders 3-4”), which was the City’s previous mechanism allowing

individuals to file complaints of police misconduct. General Orders 3-4 provided that “[i]f the

complaint was sustained, the person [who filed the complaint] will only be told that ‘appropriate

disciplinary action will be taken.’ The specific disciplinary action may not be released.” Under

General Orders 3-4, the city clerk was not involved in the complaint process.

On April 14, 2021, Morrison submitted to Clerk Goodwin multiple complaints of police

misconduct occurring between November 11, 2013 and April 16, 2015.2 On April 20, 2021,

Clerk Goodwin informed Morrison that his complaints could not be filed with the Board because

the complaints were untimely. Section 125.270(H)(3) (2020) requires complaints to be filed

within one year from the date of the alleged misconduct.3

On March 24, 2022, Morrison filed a pro se pleading styled “Petition for Writ of

Mandamus Amended to Petition for Judicial Review of Administrative Decision” (“Amended

Petition”) in the circuit court. The Amended Petition sought an order requiring Clerk Goodwin

to forward his complaints to the Board. Morrison asserted that General Orders 3-4 contained no

2 Morrison also alleges that in 2017, he filed complaints with the Police Department under General Orders 3-4. 3 In particular, a complaint “must be filed within ninety (90) days from the date of the alleged misconduct, unless the complainant shows good cause for the delay in submitting the complaint, but in all circumstances, complaints must be filed within one (1) year of the alleged misconduct.” Section 125.270(H)(3) (2020) (emphasis added). When timely filed, “[t]he recipient of the complaints shall promptly forward complaints to the Police Chief, and the Police Chief shall notify the Board Chair of the nature of the complaint within forty-eight (48) hours of receipt of the complaint.” Id.

2 temporal limitation and argued that Clerk Goodwin’s “enforcement of Section 125.270(H)(3) of

Ordinance No. 8657 violates Missouri’s constitutional provision against laws retrospective in

operation” and “further violat[es] Article I, Section 9 of the Missouri Constitution by denying

Morrison his binding right to petition the City of Florissant for a redress of grievances regarding

the intentional misconduct by the City’s police officers.” We interpret Morrison’s argument to

be that Clerk Goodwin’s retroactive enforcement of the time requirement for filing complaints

under the 2020 ordinance denied him his vested right to file a complaint of police misconduct

because the prior General Orders 3-4 had no temporal limitation.

In 2022, the Florissant City Council passed Ordinance No. 8787, amending Section

125.270(H)(1) to, inter alia, remove the city clerk as an authorized recipient of any complaint of

police misconduct. Clerk Goodwin subsequently moved to dismiss the Amended Petition as

moot claiming she lacked authority to provide Morrison the relief he sought in his Amended

Petition. The circuit court granted Clerk Goodwin’s motion to dismiss. Morrison now appeals.

Jurisdiction

I. Issue of Mootness

Preliminarily, Clerk Goodwin argues this Court is without jurisdiction to address

Morrison’s appeal because the underlying controversy is moot. Specifically, Clerk Goodwin

posits that she has no authority to receive or forward Morrison’s police complaints because

Ordinance No. 8787 removed the city clerk as a proper recipient of complaints under Section

125.270(H)(1) (2022).

“Mootness implicates the justiciability of a controversy and is a threshold issue to

appellate review.” LeBeau v. Comm’rs of Franklin Cnty., 459 S.W.3d 436, 438 (Mo. banc

2015) (internal citation omitted). “A cause of action is moot when the question presented for

decision seeks a judgment upon some matter which, if the judgment was rendered, would not

3 have any practical effect upon any then existing controversy.” Humane Soc’y of United States v.

State, 405 S.W.3d 532, 535 (Mo. banc 2013) (quoting C.C. Dillon Co. v. City of Eureka, 12

S.W.3d 322, 325 (Mo. banc 2000)). “When an event occurs which renders a decision

unnecessary, the appeal will be dismissed.” Id. “Missouri courts do not decide moot issues.”

MacFarlane v. Wheeler, 285 S.W.3d 818, 819 (Mo. App. E.D. 2009).

We recognize two narrow exceptions to mootness permitting appellate review: “(1) when

a case becomes moot after submission and argument . . . and (2) when the issue raised is one of

general public interest and importance, recurring in nature, and will otherwise evade appellate

review.” State ex rel. Peters-Baker v. Round, 561 S.W.3d 380, 384–85 (Mo. banc 2018)

(internal citations omitted).

In this case, the Amended Petition challenged enforcement of Section 125.270(H)(3)

(2020) under the prior Ordinance No. 8657. Specifically, Morrison sought injunctive relief

asking the circuit court to order Clerk Goodwin to forward his April 2021 complaints to the

Board. Initially, Clerk Goodwin informed Morrison that she could not forward his complaints to

the Board because Morrison did not timely file the complaints as required by ordinance. The

City later enacted Ordinance No. 8787, which modified Section 125.270(H)(1) by removing the

city clerk as a proper recipient of a complaint of police misconduct. Accordingly, under Section

125.270(H)(1) (2022), Clerk Goodwin is no longer authorized to receive or forward police

complaints. The issue before us is whether the enactment of Ordinance No. 8787 in 2022

renders the case moot.

A. Ordinance Amendment Renders Morrison’s Claim Moot

Morrison first argues that Ordinance No. 8787 did not remove Clerk Goodwin as a proper

recipient of citizen police complaints. Morrison misguidedly focuses on a provision in

Ordinance No. 8787 that removed civilian employees within the Police Department from the 4 review process. Morrison maintains that because the city clerk is not a civilian employee of the

Police Department, Clerk Goodwin was not removed as a proper recipient of police complaints.

But Ordinance No. 8787 addressed who could be the subject of a complaint of misconduct and

not who could receive such complaints. Under the prior Ordinance No. 8657, civilian employees

within the Police Department were included among the persons against whom citizens could file

complaints with the Board alleging misconduct. Ordinance No. 8787 simply removed civilians

employed by the Police Department as proper subjects of misconduct complaints. Contrary to

Morrison’s assertion, the reference to civilian employees in Ordinance No. 8657 does not pertain

to the proper recipient of police misconduct complaints.

When analyzing the issue of who is an authorized recipient of a police complaint under

the Florissant Code of Ordinances, we consider the plain language of both Ordinance No. 8657

and the language of Ordinance 8787. We note that Ordinance No. 8657, Section 125.270(H)(1)

(2020) specified that “[c]omplaints may be filed with the police department, the Board or with

the city clerk.” (Emphasis added). Ordinance No. 8787, Section 125.270(H)(1) (2022) directs

that “[a]ny citizen complaint may be filed with the Police Department, or the Board.” Critically,

Section 125.270(H)(1) (2022) removes the city clerk as an authorized recipient of citizen police

complaints. See Penzel Constr. Co., Inc. v. Jackson R-2 Sch. Dist., 655 S.W.3d 434, 440 (Mo.

App. E.D. 2022) (internal citation omitted) (noting “the legislature’s use of different terms . . . is

presumed to be intentional and for a particular purpose, and we cannot simply insert terms that

the legislature has omitted under the pretense of statutory construction”); Piercy v. Missouri

State Highway Patrol, 583 S.W.3d 132, 144 (Mo. App. W.D. 2019) (noting we must give

meaning to the deliberate omission of language previously included in a provision); see also

DMK Holdings, LLC v. City of Ballwin, 646 S.W.3d 708, 712 (Mo. App. E.D. 2022) (citing

5 City of St. Peters v. Roeder, 466 S.W.3d 538, 543 (Mo. banc 2015)) (“Municipal ordinances are

interpreted using the same rules governing statutory interpretation.”). The plain language of

Ordinance No. 8787 expressly removed the city clerk as a proper recipient of police complaints.

Morrison’s reliance on the term “civilian employees” mischaracterizes the use of that term in the

ordinances in question, and renders Morrison’s argument unavailing.

Because Ordinance No. 8787 removed the city clerk as an authorized recipient of police

misconduct complaints, we next address whether that ordinance amendment renders Morrison’s

petition moot. This Court addressed a similar set of facts in Gebru v. St. Louis Cnty., 136

S.W.3d 89 (Mo. App. E.D. 2004). There, the appellants filed an application with the St. Louis

County Department of Public Works for a license to operate a taxicab business. At the time of

the application, the county issued licenses to operate taxicab businesses under Chapter 806 of the

St. Louis County Revised Ordinances (“SLCRO”). Id. The County Council denied the

appellants’ requests for a taxi cab license and the appellants challenged the denial in the circuit

court. Id. at 91–92. While the circuit court judgment was pending, the County Council enacted

an ordinance repealing Chapter 806 of SLCRO, which precluded the county from issuing taxi

cab licenses. Id. at 92. The circuit court dismissed the claim, finding that the appellants’

requested relief was impossible to grant because the County Council lost authority to issue taxi

cab licenses when Chapter 806 of SLCRO was repealed. Id. We then dismissed the appeal as

moot. Id.

As in Gebru, Morrison seeks relief that Clerk Goodwin is without authority to provide

given the superseding ordinance. See id. “This Court has long recognized that, when a

challenged provision is superseded, the challenge becomes moot.” State ex rel. Missouri Coal.

for the Env’t v. Joint Comm. on Admin. Rules, 519 S.W.3d 805, 810 (Mo. banc 2017). Here,

6 Morrison requests that Clerk Goodwin forward his complaints to the Board. Under the newly

enacted Ordinance No. 8787 and its amended Section 125.270(H)(1) (2022), Clerk Goodwin no

longer receives police complaints and lacks any authority to forward such complaints.

Accordingly, the courts have no power to grant such relief. See id. Established judicial

precedent requires us to find the controversy presented in this case to be moot. See id.; Gebru,

136 S.W.3d at 92.

B. Retrospective Application of Ordinances Is Not Unconstitutional

Morrison further argues that because he established a vested right when he filed previous

complaints under General Orders 3-4 and Ordinance No. 8657, his claims cannot be denied as

being moot. Morrison posits that applying Ordinance No. 8657 retrospectively with regard to his

claims of police misconduct is unconstitutional because the new ordinance imposes a temporal

limitation that did not previously exist, and this temporal limitation denied him his vested right to

have Clerk Goodwin forward his complaint.4

“Article I, section 13 of the Missouri Constitution prohibits the enactment of any law that

is ‘retrospective in its operation.’” State v. Young, 362 S.W.3d 386, 390 (Mo. banc 2012)

(quoting Mo. Const. art. I, sec. 13). “A law is retrospective in operation if it takes away or

impairs vested or substantial rights acquired under existing laws or imposes new obligations,

duties, or disabilities with respect to past transactions.” Hess v. Chase Manhattan Bank, USA,

N.A., 220 S.W.3d 758, 769 (Mo. banc 2007) (internal citation omitted). “A vested right ‘must be

something more than a mere expectation based upon an anticipated consequence of the existing

law.’” State ex rel. Koster v. Olive, 282 S.W.3d 842, 848 (Mo. banc 2009) (quoting Beatty v.

State Tax Comm’n, 912 S.W.2d 492, 496 (Mo. banc 1995)). “A ‘vested right’ has been defined

4 Ordinance No. 8787 contains the same temporal limitation, but Morrison’s argument here focuses on Ordinance No. 8657.

7 as ‘a title, legal or equitable, to the present or future enjoyment of property or to the present or

future enjoyment of the demand, or a legal exemption from a demand made by another.’” La-Z-

Boy Chair Co. v. Dir. of Econ. Dev., 983 S.W.2d 523, 525 (Mo. banc 1999) (quoting Fisher v.

Reorganized Sch. Dist. No. R-V of Grundy Cnty., 567 S.W.2d 647, 649 (Mo. banc 1978)).

The focus of our constitutional analysis of Morrison’s claim is whether Morrison

obtained a vested right under General Orders 3-4. We note that under General Orders 3-4, a

sustained complaint required that the complainant be informed that “appropriate disciplinary

action will be taken.” In its most basic terms, General Orders 3-4 simply provided a forum

allowing individuals to file informal complaints with the Police Department. Similarly,

Ordinance Nos. 8657 and 8787 merely established a process allowing individuals to file informal

complaints alleging police misconduct. Neither Ordinance confers on the complainant the right

to be awarded money damages or otherwise obtain a legal or equitable interest as a result of

filing a complaint. We are not persuaded that Morrison’s ability to file a complaint under

General Orders 3-4 or Ordinance Nos. 8657 or 8787 somehow grants him (or any other citizen) a

constitutionally protected vested right. See La-Z-Boy Chair Co., 983 S.W.2d at 525.

Indeed, Missouri courts routinely have held that an individual does not obtain a vested

right merely by filing a request under a prior version of a municipal enactment. See, e.g.,

Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment of Kansas City, 297 S.W.3d 107, 109

(Mo. App. W.D. 2009) (finding “the new ordinance applied because the mere filing of the

application gave the applicant no vested right under the old ordinance”); Metro Fill Dev., LLC v.

St. Charles Cnty., 614 S.W.3d 582, 591 (Mo. App. E.D. 2020) (noting a business’s “filing of its

[conditional use permit] application did not confer upon it a vested right to a particular zoning

procedure scheme”); Lamar Co., LLC v. City of Kansas City, 330 S.W.3d 767, 771 (Mo. App.

8 W.D. 2010) (concluding that an application for a billboard permit under a prior ordinance does

not establish a vested right); State ex rel. Lee v. City of Grain Valley, 293 S.W.3d 104, 108 (Mo.

App. W.D. 2009) (finding in a zoning denial appeal that “[t]he filing of an application alone

would not establish that the [appellants] had a vested right to the continued application of the

prior zoning ordinance to their property”). This case is further distinguishable from the

aforementioned cases because the appellants challenging zoning decisions in those cases

possessed the means of establishing vested rights through demonstrating “actual use” under the

previous ordinance. See Claudia Lee, 297 S.W.3d at 112. Contrastingly, even had Morrison’s

complaints been timely and properly submitted, we find no scenario in which he could have

established a vested right under General Orders 3-4 or Ordinance Nos. 8657 and 8787. See La-

Z-Boy Chair Co., 983 S.W.2d at 525. Absent a vested right, Morrison’s argument that the

retrospective application of the ordinances is unconstitutional, must fail. See Hess, 220 S.W.3d

at 769.

C. Morrison’s Claims Do Not Qualify as Exceptions to Mootness

Finally, even when a case is determined to be moot, we may nevertheless maintain

jurisdiction to review it under two narrow exceptions.5 While having a mechanism to file police

misconduct complaints may generally relate to a matter of public interest and importance, the

issue asserted in Morrison’s petition is not one that is likely to recur or otherwise evade appellate

review as required for the exception. See Round, 561 S.W.3d at 384–85; State ex rel. Allen v.

Parks, 575 S.W.3d 727, 730 (Mo. App. E.D. 2019). Morrison specifically focuses his request for

relief on Clerk Goodwin, who is no longer involved in the police complaint process for the City.

Importantly, the issue presented by Morrison in his petition will not recur because Ordinance No.

5 We note that the first exception does not apply because the underlying mootness arose prior to this case being appealed. See Round, 561 S.W.3d at 384–85.

9 8787 has removed the city clerk as an authorized recipient of police complaints within the City.

See Round, 561 S.W.3d at 384–85. Further, under the current procedures for filing citizen

complaints against Florissant police officers, we see no reason why any issue arising from said

complaint would be incapable of appellate review. Thus, we find the narrow public-interest

exception to mootness is inapplicable given the facts of this case. See id.

Because Clerk Goodwin is no longer an authorized recipient of complaints of police

misconduct under the relevant ordinance and is without authority to forward Morrison’s

complaints, reversing the trial court’s judgment would provide Morrison no remedy. For that

reason, Morrison’s appeal is moot. See Humane Soc’y, 405 S.W.3d at 535. Additionally, the

particular facts of this case do not merit application of the narrow exceptions to mootness. Nor

do such facts support an argument that a retrospective application of the temporal limits for

submitting complaints of police misconduct under the current ordinance deprives Morrison of

any constitutionally vested rights he had under the previous ordinance. See Round, 561 S.W.3d

at 384–85; La-Z-Boy Chair Co., 983 S.W.2d at 525. Therefore, we dismiss the appeal.

Conclusion

The appeal is dismissed as moot.

_________________________________ KURT S. ODENWALD, Judge

Michael E. Gardner, C.J., concurs. Robert M. Clayton III, J., concurs.