Bollhoffer v. Wolke
| Decision Date | 20 December 1974 |
| Docket Number | No. 354,354 |
| Citation | 66 Wis.2d 141,223 N.W.2d 902 |
| Parties | Bonald BOLLHOFFER, Appellant, v. Michael S. WOLKE, Milwaukee County Sheriff, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Gimbel, Gimbel & Reilly, Milwaukee, for appellant.
Robert P. Russell, Corp. Counsel, Patrick J. Foster, Asst. Corp. Counsel Milwaukee, for respondents.
This action for declaratory judgment relief was commenced by Ronald Bollhoffer, plaintiff-appellant, (hereinafter plaintiff) against Michael S. Wolke, Milwaukee County Sheriff and the individual members of Milwaukee County Civil Service Commission, defendants-respondents, (hereinafter defendants).
The plaintiff, Ronald Bolhoffer, a Milwaukee County Deputy Sheriff since 1962, brought this action seeking to have Sec. 63.05(2), Stats., declared null and void under the facts alleged in the complaint and seeking an injunction against defendants enjoining them from advancing any deputy sheriff to the position of sergeant on the basis of veterans' preference points if such treatment is not afforded the plaintiff.
The complaint alleges and the answer admits that it is part of the defendants' responsibilities to provide examinations and certify those employees of the sheriff's department qualified for advanced positions within the department and the among the factors considered are the provisions of Sec. 63.05(2), Stats., which gives preference points on civil service examinations to certain veterans. The plaintiff is eligible for promotion but is not entitled to nor will he become entitled to veterans' preference points. There was to be an examination given to qualify deputy sheriffs for consideration for promotion on January 27, 1973 and among those taking the examination would be individuals who would be entitled to veterans' preference points but who did not have the same amount of experience or education as the plaintiff.
The complaint also alleges that the plaintiff was a member of the United States Armed Forces between July, 1955 and July, 1958 and that the plaintiff received an honorable discharge. However, that term of service is not included in the statutory provisions which specify when preference points are to be granted.
The plaintiff alleged that Sec. 63.05(2), Stats., as applied against him, interfered with and impaired his legal rights and privileges and violated his property rights without due process and denied him equal protection of the laws.
Following the defendants' answer, the plaintiff moved for summary judgment. The court denied the motion for summary judgment, the request to declare Secs. 63.05(2) and 45.35(5), Stats., unconstitutional, the stay requested in the motion for declaratory judgment and all motions of the plaintiff.
We note at the outset that the record does not show that the attorney general was served with a copy of the proceeding in this case. Whenever a declaratory judgment action is brought challenging the constitutionality of a statute or ordinance, the attorney general must be served with copies of the proceedings, as required by Sec. 269.56(11), Stats.:
'. . . (I)f the statute, ordinance or franchise is alleged to be unconstitutional, the attorney-general shall also be served with a copy of the proceeding and be entitled to be heard.'
Since Sec. 269.56(15), Stats., directs uniformity of...
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Fessler's Estate, Matter of
...728, 735, 264 N.W.2d 561 (1978); Town of Center v. City of Appleton, 70 Wis.2d 666, 669, 235 N.W.2d 504 (1975); Bollhoffer v. Wolke, 66 Wis.2d 141, 144, 223 N.W.2d 902 (1974). This conclusion is mandated by the language in sec. 806.04(11). See Bollhoffer v. Wolke, supra, at 143, 223 N.W.2d ......
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...561, 564 (1978); Town of Center v. City of Appleton, 70 Wis.2d 666, 668-69, 235 N.W.2d 504, 505 (1975); Bollhoffer v. Wolke, 66 Wis.2d 141, 143-44, 223 N.W.2d 902, 903 (1974). Several reasons have been offered for those holdings. One reason is that "[b]ecause the declaratory action itself i......
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