Attoe v. Madison Professional Policemen's Ass'n

• Decision Date: 01 July 1977
• Docket Number: No. 75-576,75-576
• Citation: 79 Wis.2d 199,255 N.W.2d 489
• Court: Wisconsin Supreme Court
• Parties: , 96 L.R.R.M. (BNA) 2370 Roger ATTOE, Appellant, v. MADISON PROFESSIONAL POLICEMEN'S ASSOCIATION, a Wisconsin Corporation, Frank Trostle, Edward W. Corcoran, Robert G. Uselmann, Richard J. Miller, Brent N. Larsen, Peter V. Cerniglia, Glen J. Bell and Douglas S. Rosemeyer, Respondents.

Page 489

255 N.W.2d 489

79 Wis.2d 199, 96 L.R.R.M. (BNA) 2370

Roger ATTOE, Appellant, v. MADISON PROFESSIONAL POLICEMEN'S ASSOCIATION, a Wisconsin Corporation, Frank Trostle, Edward W. Corcoran, Robert G Uselmann, Richard J. Miller, Brent N. Larsen, Peter V Cerniglia, Glen J. Bell and Douglas S. Rosemeyer, Respondents.

No. 75-576.

Supreme Court of Wisconsin.

Argued May 31, 1977.

Decided July 1, 1977.

Roger Attoe, plaintiff-appellant, a member of the Madison Professional Policemen's Association, commenced action against the association and the directors thereof to recover damages alleged to have been sustained as a result of his expulsion from the board of directors and his removal as secretary thereof. The trial court sustained a demurrer to the complaint, and the plaintiff appeals.

Earl Munson, Jr., Madison, for appellant; La Follette, Sinykin, Anderson & Abrahamson, Madison, on brief.

Richard V. Graylow, Madison, for respondents; Jean Helen Lawton and Lawton & Cates, Madison, on brief.

CONNOR T. HANSEN, Justice.

The Madison Professional Policemen's Association (MPPA) is a non-stock corporation /labor organization representing, for labor negotiation purposes, all police officers employed by the city of Madison. MPPA is organized and exists under and by virtue of the laws of the State of Wisconsin, and is operated and governed pursuant to its published articles of incorporation and by-laws. Trostle, Corcoran, Uselmann, Miller, Larsen, Cerniglia, Bell and Rosemeyer, defendants-respondents, are members and directors of MPPA. MPPA and the directors will hereinafter be referred to jointly as the defendants. Attoe had been a member of MPPA since 1961, and at the times material to this action was a member of the board of directors and the secretary thereof.

The "Articles and By-Laws" of MPPA are attached to the complaint, made a part thereof, and contain the following provisions:

ARTICLE V, Section 10.

"Section 10. The board shall have the power to expel any member of the association and also to remove any of their own number from office who may be guilty of a violation of the Articles or (sic) Organization, its by-laws, of a breach of trust, of conduct detrimental to the welfare of the association or any other official misconduct. Such expulsion or removal shall require a two-thirds vote of said board."

ARTICLE V, Section 11.

"Section 11. The board of directors shall have authority to make such rules and regulations as it may deem necessary to conduct the affairs of the association, provided such rules and regulations are not inconsistent with the provisions of the Articles of Organization and its by-laws; and the said board shall have the right and authority to require its officers to perform such additional or different duties as from time to time shall be imposed or required by said board, or as may be prescribed from time to time by the members of the association, consistent with its Articles of Organization and by-laws."

The complaint alleges that on January 13, and June 9, 1971, respectively, the board of directors of MPPA adopted the following resolutions:

"Any member of the association who wishes to engage in any political activity acting on his own without the knowing use of his police or association title, may do so without interference from any other officer or director of the association."

"Only the President of MPPA will make any public statement of MPPA policy, actions, resolutions, or general business of the MPPA or its members unless first having submitted orally or in writing to the President of the MPPA and is agreed to by the majority of the members of the Board of Directors. Violation of this will be subject to Section 10, Article 5, the Articles and By-Laws of the MPPA. This resolution is not to prohibit any member or officer from expressing his personal opinion on any matter concerning the department or MPPA."

The complaint further alleges that on July 31, 1974, the plaintiff, acting as an elector of the city of Madison, made a written statement to the board of police and fire commissioners at an official public hearing concerning the Madison police chief that " 'unless the entire matter is concluded in some manner in the immediate future that the department and the public will suffer irreversible damage (crime is already up 13%).' "; that the plaintiff was quoted in an article appearing in a general circulation newspaper dated August 1, 1974, as stating: " 'Crime is up 13% from June of 1973,' " and " '(u) nhappy police may not be working as hard as they could be because of dissension under (police chief) Couper.' "; that on August 1, 1974, the individual defendants acting as the board of directors of MPPA expelled the plaintiff, in his absence, as a member of the board of directors and removed him as MPPA's secretary; that the plaintiff remained a member of the association; that the reason for the expulsion and removal was the statements made by the plaintiff the previous evening to the board of police and fire commissioners; and that the directors' action was taken pursuant to Article V, Section 10 of the by-laws of MPPA.

The plaintiff alleges four causes of action against the defendants, all resulting from his removal as a director and officer of MPPA:

(1) Breach of contract against MPPA for removing the plaintiff in violation of the two resolutions, and a tort action against the individual defendants for vindictively, wrongfully and maliciously removing the plaintiff in breach of their duty as MPPA directors;

(2) Violation of the plaintiff's constitutional right of free speech and violation of the Civil Rights Act, 42 U.S.C., sec. 1983;

(3) Violation of sec. 111.70(3)(b)(1), Stats.; and

(4) Violation of sec. 181.20(4), Stats.

The defendants demurred to the complaint, alleging several objections to defects appearing upon the face of the complaint. The trial court sustained the demurrer on the grounds that the plaintiff, as to each cause of action, failed to allege facts sufficient to state a cause of action. The trial court overruled the demurrer as to each of the other objections to defects appearing on the face of the complaint.

Thus the issue presented on this appeal brought by the plaintiff is whether his complaint alleged facts sufficient to state any cause of action?

The rules governing this court's review of a trial court's order sustaining or overruling a demurrer to a complaint have been stated many times. They were recently set forth in Int'l Found. Emp. Ben. Plans v. Brookfield, 74 Wis.2d 544, 548, 549, 247 N.W.2d 129 (1976). Suffice it to emphasize that on demurrer, the pleadings are to be liberally construed with a view to substantial justice between the parties. The question which must be answered by the court is whether any cause of action has been stated upon which relief can be granted. It is not the theory of the plaintiff's case that is controlling. The plaintiff is bound by the facts he has alleged, not by his theory of recovery. Val-Lo-Will Farms v. I. Azoff & Asso., 71 Wis.2d 642, 238 N.W.2d 738 (1976). A court is not necessarily compelled to determine whether a complaint states more than one cause of action. If a cause of action is stated in a complaint, although it may be combined with other allegations not constituting a separate cause of action, the demurrer must be overruled. Schwartz v. Milwaukee, 43 Wis.2d 119, 122, 168 N.W.2d 107 (1969).

The facts which gave rise to the instant action, as pleaded by the plaintiff, must for the purposes of this demurrer, be deemed true. The essential facts are that the plaintiff was a member, director and officer of the defendant labor union, MPPA; that in addition to its articles and by-laws, the board of directors of MPPA, as authorized by the by-laws, had adopted the two resolutions referred to in the complaint which granted a measure of political action freedom and free speech rights to members of MPPA; that the plaintiff, acting as an elector of the city of Madison, made certain public statements at a public hearing to a public body; that as a direct result of the statements the plaintiff was expelled as a director and removed as an officer of MPPA; that the action of expulsion and removal by MPPA was taken pursuant to Article V, Section 10 of the by-laws; and that the plaintiff was damaged by such removal and expulsion.

The plaintiff commenced this action to recover damages for his alleged wrongful removal as an officer and director of a voluntary association. The management and internal affairs of such an association are governed by the constitution and by-laws and constitute a contract between the members of the association. ¹ In Herman v. United Automobile, A. & A. I. Workers, 264 Wis. 562, 567, 59 N.W.2d 475, 478 (1953), it was stated:

" * * * The courts are reluctant to interfere in the internal affairs of such organizations unless personal or property rights are involved. The rule has been stated by this court in Callahan v. Order of Railway Conductors, 169 Wis. 43, 47, 171 N.W. 653, 654 (1919) as follows:

" '* * * courts will not look into the technical correctness of either the proceedings prescribed or the proceedings followed, and * * * any reasonable or permissible construction which an order gives to its own constitution, laws, or rules will govern unless clearly subversive of personal or property rights. * * *' "

See also: Fray, supra, 9 Wis.2d 638, 101 N.W.2d 782; Hamilton v. Van Laanen, 203 Wis. 559, 563, 234 N.W. 740 (1931); Wickham v. United Brotherhood, 178 Wis. 564, 573, 190 N.W. 436 (1922).

Therefore, to ascertain whether or not a breach of contract has occurred and to consider adequate remedies is not necessarily an interference with the internal affairs of the association if the complaint alleges that personal or property rights are involved. This court has frequently entertained suits based upon breaches of contracts existing between association members and voluntary...