Lead Opinion
Pursuant to U.C.A., 1953, §§ 77-6-1 to -9, adopted in 1980, appellant, the mayor of Grantsville, was removed from office upon the jury’s determination that appellant’s participation in the killing of dogs constituted sanctionable “malfeasance in office.” Appellant contends that removal proceedings are “quasi-criminal” in nature and seeks clarification as to his right against self-incrimination and his right to a unanimous verdict in such proceedings. Appellant also asserts that the jury applied the wrong standard of “malfeasance in office” because both the jury instructions and counsel’s closing arguments allegedly suggest that appellant could be removed from offiсe without a showing that he was acting under a specific mayoral duty when the alleged wrongful acts or omissions occurred.
On appeal, appellant seeks an order vacating the judgment of removal and reinstating him as mayor. Alternatively, he seeks a new trial.
On July 22, 1982, Officer Candelaria of the Grantsville City Police Department picked up four loose dogs after receiving a citizen’s complaint. Loose dogs were customarily disposed of at appellant-mayor’s farm. While Candelaria and Police Chief Maycock were enroute to the farm, they saw appellant in downtown Grantsville. They stopped and told appellant wherе they were going, and appellant decided to accompany them. Upon arrival at the farm, Maycock shot and killed three dogs, and appellant shot and killed one dog (allegedly to demonstrate the quickest and most humane method to destroy the animals).
On July 27, 1982, Wayne Madsen discovered the carcass of his dog on appellant’s property, along with the remains of several other dogs. Madsen invited reporters and investigators to the site, whereupon appellant, assisted by Maycock, removed the carcasses from the farm.
Appellant pleaded nolo contendere to a class B misdemeanor charge of cruelty to animals. Five Grantsville citizens initiated the presеnt action, alleging that the misdemeanor constituted grounds for removal from office. The petition was later amended to charge appellant with theft, conspir
Prior to trial, appellant moved for summary judgment on the malfeasance in office charge on the grounds that there were no disputed facts and that any misconduct by aрpellant was performed in his private rather than his official capacity. The motion was denied, and the case went to trial. At the conclusion of the presentation of evidence, appellant moved for a directed verdict, alleging that no evidence had been introduced that appellant had any official duty with respect to animal control. This motion was also denied, and the jury returned a verdict of guilty. Subsequent motions for judgment notwithstanding the verdict or a new trial were also denied. Pursuant to the judgment of guilty of malfeasance in office, appellant has been removed from office.
Removal Procedures
Appellant asserts that the trial cоurt committed reversible error by denying appellant the right against self-incrimination and instructing the jury that appellant could be removed from office by a less-than-unanimous verdict. Respondents contend that neither issue was properly preserved for appeal. Under long-standing principles recently reiterated in several Utah cases,
Respondents also urge that the issue as to whether the removal of an officer requires a unanimous verdict was not properly preserved for appeal because appellant failed to exercise his right to poll the jury under Rule 47(q) of the Utah Rules of Civil Procedure. Rule 47(q) was not intended to impose such a requirement, nor does it contemplate the situation now before this Court. The clear intent of the polling provision is to allow the parties the opportunity to ensure that the requisite number of jurors concurred in the verdict. It is not a vehicle to bring into issue the court’s instruction as to the number of concurring jurors required to reach a verdict. Appellant’s timely objection to the instruction that a plurality of six of eight jurors was required to reach a verdict was therefore sufficient to preserve the issue for appeal.
The issue as to the number of jurors required to reach a verdict is an issue of law and as a result requires a standard of review as described in Betenson v. Call Auto & Equipment Sales, Inc., Utah,
Applying this standard, the Court first examines the origins of its removal authority. Paraphrasing language from State v. Jones,
The legislature, as recently as 1980, exercised its sole prerogative to prescribe the manner by which a public officer may be removed from office. The new removal statute significantly alters the procedures prescribed under the former law. The new removal statute deletes, inter alia, the provision that a removal trial “must be by jury and be conducted in all respects in the same manner as the trial of an indictment or information for a felony.” See U.C.A., 1953, § 77-7-11, repealed in 1980. Trial procedures in removal proceedings currently are established under U.C.A., 1953, § 77-6-7, as amended, which states as follows: “If the defendant denies the accusation or refuses to answer or appear, the court shall proceed to try the accusation. The rights of the parties and procedures used shall be the same as in any civil proceeding.” (Emphasis added.)
The above statute apparently provides that appellant does not have a right to an instruction that differs from that to which he would be entitled in any civil proceeding. Under Rule 47(q) of the Utah Rules of Civil Procedure, a verdict in a civil proceeding only requires the concurrence of three-fourths of the jurors.
Appellant bases his contention that he was entitled to an instruction that a unanimous verdict was required for removal on the language of U.C.A., 1953, § 77-6-8, as amended, which states in part as follows: “If the defendant admits the accusation or is convicted, the court shall enter judgment against him directing the defendant be removed from office and setting forth the causes of removal.” (Emphasis added.)
Appellant asserts that the word “convicted” requires the application of criminal standards of proof, including both a beyond-a-reasonable-doubt standard and a unanimous verdict. Appellant also urges that State v. Geurts,
Appellant points to the substantial repu-tational interests of the accused in a removal proceeding and suggests that because a removal judgment declares the accused unfit to retain thе public trust, rather than merely assessing money damages, the accused is entitled to criminal procedure safeguards. Appellant also points to the public’s interest in protecting its duly elected public officers. He argues that because a removal action allows the voice of only a few citizens to negate the vote of the electorate, the jury should be required to be unanimous in its decision.
Removal proceedings, however, are statutory proceedings not of common law origin. State v. Jones,
Therefore, the Court looks to the rules of statutory construction to resolve the apparent contradiction between section 77-6-7 and section 77-6-8. In cases of apparent conflict between provisions of the same statute, it is the Court’s duty to harmonize
There seems to be no double meaning in section 77-6-7. However, the term “convicted” in section 77-6-8 is susceptible of two meanings, one of which would reconcile it with section 77-6-7. The term “convicted” from section 77-6-8, considered in context, could reasonably be interpreted to mean a determination by the court that the acсusations constituting the basis for removal were true, as opposed to the alternative basis for judgment of removal, the defendant’s admission.
This interpretation reconciles the two provisions and is a more reasonable assessment of legislative intent than the interpretation urged by appellant. Appellant urges that the term “convicted” determines the rights of the parties and procedures at trial in conflict with the preceding provision passed for that very purpose. Section 77-6-7 specifically addresses the issue of the rights and procedures to be used to try the accusations that form the basis of removal, whereas section 77-6-8 dеals with the court’s responsibility once it has been determined that the accusations are true.
It is a long-standing rule of statutory construction that a provision treating a matter specifically prevails over an incidental reference made thereto in a provision treating another issue, not because one provision has more force than another, but because the legislative mind is presumed to have stated its intent when it focused on that particular issue, 73 Am. Jur.2d Statutes § 255 (1974). The Court concludes, therefore, that the legislature clearly prescribed that the rules of civil procedure apply to removal trials and that the trial court did not err in refusing thе instruction that a unanimous verdict was required to remove a public officer.
Standard of Malfeasance in Office
Appellant’s remaining contentions relate to the trial court’s alleged application of an improper standard of “malfeasance in office.” Appellant contends that the trial court erred in giving the jury inconsistent and improper instructions regarding the standard of malfeasance in office and in allowing respondents’ counsel in his closing argument to urge the jury to apply an incorrect standard. He also alleges error in that the evidence is legally insufficient to support the jury’s verdict under the proper standard of malfeasance in office. Apрellant contends, therefore, that failure to grant his motions for summary judgment, directed verdict, judgment notwithstanding the verdict or new trial constituted reversible error. These errors allegedly permitted him to be removed from office for misconduct unrelated to his official duties.
According to Rule 61, Utah Rules of Civil Procedure, the judgment of the trial court should not be disturbed unless the alleged errors were “substantial and prejudicial.” Such an assessment requires definition of the proper standard of malfeasance in office. In State v. Geurts, supra, this Court, while rejecting an argument that the term “malfeasance in office” was unconstitutionally vague, stated as follows:
On the contrary, by usage the phrаse “malfeasance in office” has acquired a commonly understood meaning: it requires an intentional act or omission relating to the duties of a public office, which amounts to a crime, or which involves a substantial breach of the trust imposed upon the official by the nature of his office, and which conduct is of such a character as to offend against the commonly accepted standards of honesty and morality.
The question as to whether appellant’s activities “amount[ed] to a crime” was dismissed by the trial court and therefore is not at issue.
The standard urged by appellant does not coincide with the commonly understood meaning of the term “malfeasance in office” or the intent of removal statutes to protect and preserve the office and to free the public of unfit officers. State v. Schroeder,
There is a range of conduct that can occur while an officer is acting under color of office, but outside any specified official duty as defined by statute or ordinance that sufficiently relates to the duties of office so as to taint the office itself or establish that a particular officer is unfit to retain the public trust. This range of conduct is included in the commonly understood meaning of malfeasance in office. R. Perkins, Perkins on Criminal Law 487 (2d ed. 1969) states that malfeasance in office can occur when an officer exercises official duties or acts under color of office. The term “under color of office” is further defined in R. Perkins, supra, at 483: “The act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office.”
The object of the requirement that the act or omission relate to thе duties of the public office is to ensure that an official is not removed for malfeasance in office when the alleged wrongful acts or omissions occurred while the officer was acting in his private capacity as opposed to his capacity as a public officer. This requirement has not been interpreted to preclude removal where the official was acting in his public capacity outside specifically defined duties of his office. The question as to whether the alleged misconduct occurred while the accused was acting in his public, as opposed to his private, capacity is a question to be dеcided by the trier of fact based on all the evidence, not merely on the evidence as to the specific duties as created by statute or ordinance.
Having further defined “malfeasance in office,” this Court now examines the jury instructions and closing arguments to determine if there is a reasonable likelihood that the jury applied the wrong standard. Appellant’s specific claim of error is that the instructions infer that appellant could be removed from office for any violation of law or for allowing another to commit any violation of law because Instruction No. 13, which was the only statement of the mayor’s duties, indicated as follows: “Yоu are instructed that under Grantsville City ordinances a mayor shall perform all duties which are or may be prescribed by law or ordinance and shall see that the laws and ordinances are faithfully executed.”
Instruction No. 13 then proceeds to tell the jury that animal control is the responsibility of the chief of police rather than the mayor, implying that the mayor did not have any specific duties in that area.
You are further instructed that under Grantsville City ordinances, it is the duty of the Chief of Police to take up and impound all dogs whether licensed or not, found running at large within the corporate limits of the city, or any dogs within the corporate limits of the city that arе not wearing collars with the registration plate attached.
The reasonable import of this instruction is to allow the jury to conclude that appellant was not acting under a specific mayoral duty, rather than to remove from the jury the issue as to whether the appellant was acting as mayor when the alleged misconduct occurred. Instruction No. 13, therefore, may have violated the strict standard of malfeasance in office urged by appellant’s counsel, that removal requires a breach of a specifically defined mayoral duty but, considered in light of other instructions, did not contradict the commonly understood meaning of the term as described herein.
On the basis of these instructions, this Court also concludes that there is no reasonable likelihood that the jury vеrdict would have been different absent the allegedly prejudicial closing arguments of respondents’ counsel. Although the arguments may have implied that appellant could be removed for any violation of law, the instructions effectively precluded reaching a verdict on that basis.
Sufficiency of the Evidence
The sole remaining issue is whether the evidence is legally sufficient to support the finding that the alleged misconduct occurred while appellant acted in his capacity as mayor. Because this was a factual determination, this Court may reverse the jury’s verdict only if that verdict is without foundation in the evidence or is based on evidence so fragmentary that no reasonable minds could have so concluded. Prince v. Peterson, Utah,
Applying this standard, the evidence is sufficient to support the jury’s conclusion that the alleged misconduct occurred while appellant acted in his capacity as mayor. The mayor was present at City Hall when the complaint about the dogs was discussed. It could reasonably be inferred from the evidence that Officer Candelaria and Chief Maycock stopped on their way to appellant’s farm to report to the mayor that the complaint had been resolved. It could also reasonably be inferred from the evidence that although appellant had no specific duty in the arеa of animal control, because of his position as chief executive officer of the city, he exercised his discretion to “supervise” or assist in disposing of the dogs. The evidence also supports the conclusion that when approached in his capacity as mayor by one of the dog owners, appellant failed to explain what had happened. Appellant and the police chief later removed the carcasses from appellant’s property in what the jury could reasonably have concluded was an effort to avoid public view. In light of the foregoing evidence, no error was committed in the dеnial of appellant’s motions.
Accordingly, the judgment of the trial court is affirmed.
Notes
. See, e.g., Bangerter v. Poulton, Utah,
. Instruction No. 10:
You are instructed that under our law a court may remove certain officials from office for malfeasance in office. A mayor of a city such as Grantsville is one of the officers who may be so removed.
Because a jury of only a few citizens can remove an official who was elected by many citizens, however, the law requires great caution in such a proceeding. For this reason the charge of malfeasance in office requires proof beyond a reasonable doubt.
. Instruction No. 12:
If you find Mayor Brown guilty of malfeasance, to further find that the malfeasance was committed in the course of Mаyor Brown’s duties as mayor, you must conclude that Brown, in fact, was acting as mayor rather than in his private capacity when he committed that offense.
Commission of a crime or misconduct unrelated to official duties does not constitute malfeasance in office; rather you may find Keith Brown guilty of malfeasance in office only if you conclude that any misconduct on his part clearly occurred during the course of his duties as mayor rather than for his own purposes.
. Instruction No. 17a:
In order to find the defendant Keith Brown guilty of malfeasance in office you must be convinced beyond a reasonable doubt that each of the following is true:
1. That the acts Mayor Brown is charged with were committed by him; and
2. That they were of such a character as to constitute "malfeasance” as that term will be defined herein; and
3. That they were committed in the course of his duties as mayor.
If you do not find beyond a reasonable doubt each of these and all of them are true, then you must return a verdict in favor of the defendant.
.Instruction No. 13a:
The term “malfeasance" means evil doing; ill conduct or the commission of some act which is positively unlawful with knowledge at the time that it was so. Malfeasance requires an intentional act or omission relating to the duties of the public office, which amounts to a crime, or which involves a substantial breach of the trust imposed upon the official by the nature of his office, and which conduct is of a character as to offend against the commonly accepted standards of honesty and morality.
Dissenting Opinion
(dissenting):
The majority holds that a duly elected mayor of a city may be removed from office by a court decree because he shot and killed a dog that had been running loose in the city. Utah Code Ann., 1953, § 77-6-1, which the majority holds authorizes that result, was never intended, in my view, to permit a court to nullify an election on such flimsy grounds. Because the Court construes § 77-6-1 to permit a handful of citizens to override the voice of the majority on such frivolous grounds, I dissent.
Section 77-6-1, which is part of the criminal procedure code, provides for the removal of individuals who are unfit to serve in public office. It states: “All justices of the peace and all officers of any city, county or other political subdivision of this state not liable to impeachment shall be subject to removal as provided in this chapter for high crimes and misdemeanors or malfeasance in office.” (Emphasis added.) Formerly, actions for removal had to be initiated by grand juries, district attorneys, or county attorneys.
The issue in this case is whether the mayor of Grantsville violated § 77-6-1 by committing “malfeasance in office,” since his action clearly does not qualify as a “high crime and misdemeanor.” Even assuming that Mayor Brown acted in his official capacity when he participated in disposing of the dogs, the question is whether that conduct shows that he is unfit to act as mayor. Malfeasance in office has nothing to do with an official’s acts affecting only his personal character as a private individual; “the character of the man must be separated from his character as an officer.” State ex rel. Martin v. Burnquist,
Not every illegal, wrongful, or unjust act that may be committed by a public official amounts to malfeasance in office. This Court has stated that malfeasance in office means “an intentional act or omission relating to the duties of a public office, which amounts to a crime, or which involves a substantial breach of the trust imposed upоn the official by the nature of his office, and which conduct is of such a character as to offend against the commonly accepted standards of honesty and morality.” State v. Geurts,
Malfeasance requires an evil or criminal intent, a conscious wrongdoing. McQuillin states:
[T]he courts have prevented the common-law crime of misconduct in office from becoming a means for oppressive prosecutions premised upon vague morаl principles by making wilfullness an element of the crime. Wilfulness ... means, in the context of malfeasance arising out of*1095 the breach of a duty of public concern, an evil purpose or mental culpability, ... guilty knowledge, mens rea, bad purpose, or corruption.
4 E. McQuillin, Municipal Corporations § 12.237 at 265 (footnotes omitted). The law presumes that a public official conducts himself in good faith, and the burden to show evil intent rests on the complainant. Id.
The nature of the misconduct which the term “malfeasance” was intended to reach is suggested by the words in the statute which precede the word malfeasance, i.e., “high crimes and misdemeanors.” State v. Jones,
Malfeasance requires more than an error of judgment or a minor violation of duty or of the law. Acts which the courts have held do not constitute sufficient grounds for removal include failure by a mayor to report liquor law violations to the county attorney, State v. Corwine,
Mayor Brown’s acts simply do not, in my judgment, constitute malfeasance in office, as a matter of law. For all that appears in the record, Mayor Brown’s error seems to have been that he became more involved in trying to solve a community problem than he needed to be, even though he may well have used poor judgment in disposing of the dogs. In truth, the owners of the dogs which were allowed to run loose were primarily at fault in the first instance, and given the finding that loose dogs were customarily disposed of in the manner that occurred in this case and that the City of Grantsville has no dog pound, one might wonder what alternative course of action there was.
Finally, the evidence shows no evil intent. The mayor simply acted to solve a community problem. He received no personal benefit from his actions. Perhaps his actions were both wrong and harsh, but, if so, that was not a sufficient ground for removing him from office and short-circuiting the electoral process.
. Section 77-7-2 (repealed, 1980 Utah Laws, ch. 15, § 1) stated:
An accusation in writing against any district, county, precinct or municipal officer, or an*1094 officer of any board of education, for any high crime, misdemeanor or malfeasance in office may be presented to the district court by the grand jury or by the district attorney, or by the county attorney of the county in which the officer accused was elected or appointed.
. Section 77-6-2 states:
An action for the removal of a justice of the peace or officer of a city, county, or other political subdivision of this state shall be commenced by presenting a sworn, written accusation to the district court. The accusation may be initiated by any taxpayer, grand jury, county attorney for the county in which the officer was elected or appointed, or by the attorney general.
Concurrence Opinion
(concurring in the result):
Although I concur with the result reached by the majority, I must also express considerable support for the concerns expressed by the dissent. A duly elected public official must not be subject to removal simply because his or her popularity wanes. Nor should an elected official’s minor pecadillos provide a basis for removal. Judicial removal of an elected official is a remedy that should be available only when that official’s conduct clearly establishes that he or she is unfit to hold office. In my view, the evidence here adequately establishes Mayor Brown’s unfitness to hold office.
The uncontradicted evidence established that the mayor was present when the dogs were killed, although he was aware that a complaint about them had been made only that morning. The evidence also established that killing the dogs was unlawful. But more importantly, testimony at trial established that the mayor lied and actively attempted to conceal his knowledge of the animals’ fate, as well as the evidence of his participation jn their destruction. Under these circumstances, there is ample record evidence to support the jury’s conclusion that the mayor’s conduct constituted malfeasance.