Oddsen v. Board of Fire and Police Com'rs for City of Milwaukee
| Decision Date | 02 July 1982 |
| Docket Number | Nos. 80-1726,81-684,s. 80-1726 |
| Citation | 321 N.W.2d 161,108 Wis.2d 143 |
| Parties | Timothy J. ODDSEN, Plaintiff-Respondent-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS FOR the CITY OF MILWAUKEE, Defendant-Appellant. In the Matter of the Appeal of Timothy J. ODDSEN. Timothy J. ODDSEN, Petitioner-Respondent-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS FOR the CITY OF MILWAUKEE, Defendant-Appellant. Gail A. QUADE, Plaintiff-Appellant-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Defendant-Respondent. STATE ex rel. Gail QUADE, Petitioner-Appellant-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Respondent. |
| Court | Wisconsin Supreme Court |
Bruce B. Jacobson, Milwaukee, argued, for plaintiff-petitioner in No. 80-1726; Piano, Duffy & Jacobson, Milwaukee, and Charles J. Rainey, River Hills, of counsel, on brief.
Laurie A. Eggert, Madison, and Kenneth J. Murray, Milwaukee, for plaintiff-petitioner in No. 81-684; Richard D. Moake and Murray & Moake, S. C., attys., Milwaukee, on brief.
Rudolph M. Konrad, Asst. City Atty., for defendant-appellant; James B. Brennan, City Atty., on brief.
We review two separate decisions of the court of appeals, 103 Wis.2d 689, 309 N.W.2d 889, 105 Wis.2d 764, 318 N.W.2d 23. Because the cases arose out of the same incident, present substantially the same questions of law and fact, and by direction of this court were argued on the same day, we consider it appropriate to consider the review of the decisions of the court of appeals in a single opinion.
Both cases involve discharges of police officers of the city of Milwaukee. In each case, after interrogation in the police headquarters, the two police officers, Gail A. Quade, a female officer, and Timothy J. Oddsen, a male officer, confessed to sexual intercourse, each with the other, on three separate occasions. Following the interrogation, Chief Harold Breier of the Milwaukee Police Department directed the discharge of each of the officers, and pursuant to sec. 62.50(13), Stats., he filed a complaint with the Board of Fire and Police Commissioners setting forth the reasons for the discharge. In his notice to the board, he specifically stated that Gail Quade and Timothy J. Oddsen had failed to conform to the adultery statute, sec. 944.16, Stats.
Pursuant to the statutes, Gail A. Quade and Timothy J. Oddsen took separate appeals. The board conducted separate hearings and affirmed the chief's action in respect to each of the officers and directed their discharge. Appeal was then taken separately by each of the police officers to the circuit court for Milwaukee county.
In respect to Gail A. Quade, the circuit court for Milwaukee county, WILLIAM A. JENNARO, Circuit Judge, affirmed the order of the Board of Fire and Police Commissioners by an order dated January 8, 1981. The court of appeals by unpublished opinion dated December 23, 1981, affirmed the order of the circuit court approving the discharge.
Oddsen also took an appeal from the order of the Board of Fire and Police Commissioners. Oddsen's case was heard in the circuit court for Milwaukee county, JOHN E. McCORMICK, Circuit Judge. That court on September 15, 1980, reversed the order of the Board of Fire and Police Commissioners. Appeal was taken by the board to the court of appeals. The court of appeals, by unpublished opinion dated June 23, 1981, reversed the circuit court and reinstated the discharge order of the Milwaukee Board of Fire and Police Commissioners.
In respect to each of these cases we accepted review on petition of the police officers. We review the decisions of the court of appeals; and in each case, we reverse the court of appeals and direct the reinstatement of each of the police officers without prejudice and without loss of entitlement to pay for the period since discharge. The causes are remanded to the respective circuit courts for the purpose of calculating the pay to which each of the officers is now entitled, after making a determination of what earned income each of the officers has accrued during the period of suspension, which income, if any, shall be an offset against the liability of the city for the pay the officers would otherwise have accrued during the period that runs from the date of their discharge, April 11, 1978, to the date of reinstatement.
Numerous issues are posed in each of these cases. We find it unnecessary, however, to resolve all the issues, because we find controlling in each case the same dispositive issue--that the confessions extracted from Quade and Oddsen, as a matter of fact and law, were coerced, involuntary, the result of denial of due process, and contrary to fundamental principles of decency and fair play. Because we set aside each of these confessions in their entirety, there is no evidence whatsoever to support the decision of the board; and, accordingly, we need not decide whether the board, in making its decision on the basis of the preponderance of the evidence, rather than upon the basis of clear and convincing evidence, committed error in determining misconduct when the underlying conduct was alleged to be criminal. Here, there was no evidence in respect to the guilt of either Quade or Oddsen in the posture in which the Board of Fire and Police Commissioners decided the two cases other than that contained in the coerced confessions. It should be noted that no charge was filed in respect to any conduct at Officer Quade's house on March 22, 1978. All the charges stemmed from information revealed in the coerced confessions.
We recount the facts as revealed by the record. Gail A. Quade was a woman police officer and, at the time of her discharge, had been an officer for approximately two and one-half years. She was twenty-three years of age. Timothy J. Oddsen had been with the force for approximately nine years. From the record it appears that each of them worked out of the same district headquarters, and on occasion Quade was assigned to duty with Oddsen. Officer Oddsen was single. Officer Quade was married to Richard Quade. The record indicates that the Quades were estranged. A divorce was contemplated, but the actual departure of Richard Quade from the couple's home had occurred only a day or two before the March 21-22 incident.
On March 21, 1978, after Officer Quade completed the work of her shift at approximately 12 midnight, she invited several off-duty police officers to a party at her home. Oddsen was not invited by Quade, but was called by a fellow police officer and arrived later. By 5:30 a. m., all except Oddsen and Gail Quade had left the home. Those two had breakfast in the early morning hours. According to the police records, Richard Quade, Gail's estranged husband, stopped at the house to see whether Gail needed anything. He said that he found Oddsen and Gail in bed. Richard Quade, who was not a police officer, went to the phone and called police headquarters and used the code meaning "an officer needs assistance." The response must have exceeded Richard Quade's wildest expectations, for within minutes 10 squad cars and at least 20 officers were at the Quade home. 1 At the time the squad cars arrived, both Oddsen and Gail Quade were fully dressed.
Shortly thereafter, at approximately 8 o'clock, Oddsen and Gail Quade were taken to the headquarters of the Fifth District, and each was separately interrogated by more senior officers. About the time the police arrived at the Quade home, Gail Quade became ill and vomited blood. She called her doctor and told him of her condition and made an appointment for that morning at 10 a. m.
Upon arrival at District Station 5, she was questioned about her off-duty conduct. Although she told the sergeants who were interrogating her that she had made an appointment with her own doctor, and although they knew that she was complaining about vomiting blood, she was not allowed to leave in order to keep the appointment with her own physician. She was instructed to submit to the investigation or be subject to further charges. It is undisputed that she knew that her failure to answer questions could result in her discharge.
At about 10 a. m. she gave a statement in which she admitted no wrongdoing. Under the scrutiny of her interrogators, she called her doctor again, telling him that she could not leave the police station, and a new appointment was made for 2:15 p. m.
There is evidence in the record adduced at the hearing before the Board of Fire and Police Commissioners that indicates that, following her first statement, one of the interrogating officers tore up some of the sheets of Gail Quade's statement which he thought were false and kept those he considered useful. He indicated to her that she would stay there until she gave the information which the interrogators thought to be truthful.
At around 10 a. m., Quade again vomited blood, and she reported this to Sergeant Parys. At about 2 p. m., Quade was taken to the First District Central Police Headquarters; and there, apparently, Lieutenant Starke took charge of the interrogation. He was told by either Sgt. Parys or Sgt. Eccher that Quade was spitting up blood. Quade told Starke that she had an appointment with her physician at 2:15 p. m., but when she asked Lt. Starke for permission to see her own physician, he said, Lt. Starke, however, allowed Quade to call her doctor. Her conversations with her physician were always made in the presence of one or more of the interrogating police officers. She told her physician that she had continued to vomit blood, had very severe stomach pains, and was very nervous and upset. Her doctor then said he would see her later in the afternoon if she at that time would be able to leave the police headquarters. At or about the time of this phone call, Lt. Starke told Quade that, if she...
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