Busche v. Bosman, Civ. A. No. 76-C-559.

• Decision Date: 15 August 1979
• Docket Number: Civ. A. No. 76-C-559.
• Citation: 474 F. Supp. 484
• Parties: Robert Leslie BUSCHE, Plaintiff, v. Robert L. BOSMAN and Wallace E. Burkee, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

474 F. Supp. 484

Robert Leslie BUSCHE, Plaintiff, v. Robert L. BOSMAN and Wallace E. Burkee, Defendants.

Civ. A. No. 76-C-559.

United States District Court, E. D. Wisconsin.

August 15, 1979.

Walter W. Stern, III, and Myron P. Keyes, Kenosha, Wis., for plaintiff.

James W. Conway, Kenosha City Atty., Kenosha, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action brought pursuant to 42 U.S.C. §§ 1983 and 1985 for damages and injunctive relief arising out of the plaintiff's allegedly unlawful initial termination from employment with the Kenosha Police Department and, following his reinstatement, his subsequent sixty-day suspension without pay. Trial to the court was held on June 5, 6, and 25, 1979. On June 6, 1979, the Court granted the plaintiff's motion to dismiss the action against the defendant Joseph H. Trotta. On June 25, 1979, the action was dismissed by stipulation against the defendants Bernice Nagy, Jack Rice, Fred Hopf, Gregg Vigansky, Bernard Dunlap, and Jerold W. Breitenbach. Thus, there remain as defendants in the action Robert L. Bosman, formerly the Chief of Police in Kenosha, Wisconsin, and Wallace E. Burkee, formerly the Mayor of Kenosha, Wisconsin.

Plaintiff alleges that his rights to due process arising under the Fourteenth Amendment to the United States Constitution were violated by the manner of his initial termination from employment on August 12, 1974, by the conduct of the subsequent Police and Fire Commission ("Commission") investigation of the charges against the petitioner, and by selective prosecution of the petitioner for acts which had also been committed by other members of the Kenosha Police Department.

The Court held as a matter of law during the trial that plaintiff's initial termination from employment was unconstitutional. It had previously ruled in a decision and order issued September 15, 1978, that any collateral consequences which plaintiff suffered as a result of the unlawful termination and which were not cured by his subsequent reinstatement with back pay were compensable. With regard to the conduct of the Police and Fire Commission hearing, however, the Court finds that no compensable due process violations occurred. Plaintiff has challenged the adequacy of the notice provided to him prior to the hearing, the jurisdiction of the Commission to hear the charges, the failure of the Commission to set forth explicitly the standard of proof which it was applying to the case, and the adequacy of the written findings issued by the Commission.

The Court finds that the notice was indeed insufficient. It provided plaintiff with a statement of the nature of the violation with which he was charged and the approximate date of commission of the violation, but failed to provide him with a statement of the evidence which would be presented with respect to the charges. See Exhibit 23; Dahlinger v. Town Board of Town of Delavan, 389 F.Supp. 977 (E.D. Wis.1974); Weyenberg v. Town of Menasha, 401 F.Supp. 801 (E.D.Wis.1975). The Court concludes, however, that plaintiff waived his right to object to the sufficiency of the notice. Shortly after the commencement of the Police and Fire Commission hearing, he was offered an adjournment for the purpose of receiving an elaboration of the charges and declined the offer. Plaintiff also stipulated in court on June 5, 1979, that he had sufficient time to prepare for the hearing, and he testified that he was able to present to the Commission all of the evidence which he wished presented.

As for plaintiff's objection to the jurisdiction of the Commission to hear the charges, the Court is of the opinion that any objections which the plaintiff had to the composition or jurisdiction of the Commission should have been raised on appeal in state court and are not, at least under the circumstances of this case, a matter of constitutional dimension. This Court is concerned only with possible violations of the Fourteenth Amendment to the United States Constitution and not with possible violations of § 62.13(5), Wis.Stats. Plaintiff's objection to the failure of the Commission to specify the standard of proof which it was applying is also without merit, since the plaintiff admitted the charges and thus they were proven both by a preponderance of the evidence and beyond a reasonable doubt. Finally, as to the Commission's findings, the Court finds that while they could have been more specific, they were minimally sufficient.

With regard to plaintiff's claim of selective prosecution, the Court has no doubt that the impetus for plaintiff's termination from employment and for the Police and Fire Commission hearing was the federal indictment which named plaintiff as an unindicted co-conspirator. The Court also recognizes that plaintiff was never charged with or convicted of a criminal offense. The fact remains, however, that plaintiff had committed the acts for which he was disciplined by the Commission, as had officer Fredericksen who also disciplined, and that while there was evidence of other officers having improperly filled out 2101 vehicle registration forms, there was no evidence that other officers had filled out such forms in blank. Consequently, the Court believes that there was a legitimate basis for the charges against the plaintiff, that the Commission's findings were not arbitrary and capricious, and that no violation of the equal protection clause of the Fourteenth Amendment occurred.

Finally, before making its formal findings of fact and conclusions of law, the Court will consider whether the circumstances of plaintiff's initial termination from employment warrant an award of punitive damages. In Stolberg v. Members of Board of Trustees for State Colleges of State of Connecticut, 474 F.2d 485 (7th Cir. 1973), the Court noted that punitive damages may be awarded in an appropriate case under 42 U.S.C. § 1983 even in the absence of an award of compensatory damages. The Court declined to decide, however, whether the standard should be that "`a defendant has acted wilfully and in gross disregard for the rights of the complaining party,'" or whether it should be extended to instances "where the defendant acted with knowledge that he was violating the plaintiff's rights or with reckless disregard of whether he was violating such rights." 474 F.2d at 489. See also, e. g., Sexton v. Gibbs, 327 F.Supp. 134, 142-143 (N.D.Tex. 1970), aff'd 446 F.2d 904 (5th Cir. 1971); Lee v. Southern Home Sites Corporation, 429 F.2d 290 (5th Cir. 1970); Morales v. Haines, 486 F.2d 880, 882 (7th Cir. 1973).

Even under the stricter standard, the Court finds that punitive damages in this case are appropriate against the defendant Burkee. As set forth in the findings of fact, the defendant Burkee was advised prior to ordering the termination of the plaintiff that he lacked authority to terminate and could merely suspend; he was specifically informed of plaintiff's rights under § 62.13(5), Wis.Stats., to due process prior to a termination from employment, which rights are consistent with plaintiff's rights under the Fourteenth Amendment, Dahlinger v. Town Board of Town of Delavan, supra; Weyenberg v. Town of Menasha, supra; and yet knowing the rights to which plaintiff was entitled, the defendant Burkee committed a willful violation of those rights by ordering plaintiff's termination without a prior hearing. With regard to the defendant Bosman, however, who is the only other defendant remaining in this action, the Court finds that in the matter of the plaintiff's termination, he acted only as an agent of the Mayor and, therefore, is entitled to dismissal with prejudice of the action against him.

Upon the record, proceedings, testimony, exhibits, stipulations, and evidence in this action, therefore, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The plaintiff Robert L. Busche is an adult resident of the State of Wisconsin and the City and County of Kenosha.

2. The defendant Robert L. Bosman was at all times pertinent the Chief of Police for the City of Kenosha, Wisconsin, and acted in that capacity under color of state law and the ordinances and regulations in effect in the City of Kenosha and State of Wisconsin. He was on the Kenosha Police Department from September 16, 1948 to January 31, 1977, and was Chief of Police from February 1, 1968 until January 31, 1977, and more specifically, he was the duly appointed Chief of Police in August 1974.

3. The defendant Wallace E. Burkee was the duly elected Mayor of the City of Kenosha from April 1967 to April 1976, and more specifically during the month of August 1974, and acted in that capacity under color of state law and the ordinances and regulations in effect in the City of Kenosha and State of Wisconsin.

4. On May 1, 1969, Robert L. Busche was appointed to the position of patrolman in the Police Department of the City of Kenosha, Wisconsin.

5. From May 1, 1969 until August 6, 1974, Robert L. Busche was rated by his superiors as an average to above average police officer based upon the following range of rating classifications: unsatisfactory, barely acceptable, below average, average, above average, and outstanding. During this period of time, Robert L. Busche had no formal reprimands or disciplinary actions recorded in his personnel file against him. He was at all times a hardworking and conscientious officer, and prior to August 6, 1974, received several commendations.

6. In May of 1974, the Chief of Police, Robert L. Bosman, was informed by a member of the Federal Bureau of Investigation ("FBI") that officers Busche and Fredericksen, two Kenosha police officers, were cooperating in a federal investigation involving a multi-state stolen car ring.

7. In May of 1974, the Kenosha Police Department conducted an investigation in conjunction with the FBI, involving the activities of White Auto Sales, Robert L. Busche, and Thomas A. Fredericksen...