Busche v. Burkee

• Decision Date: 21 May 1981
• Docket Number: Nos. 80-1248,80-1345,s. 80-1248
• Citation: 649 F.2d 509
• Parties: Robert Leslie BUSCHE, Plaintiff-Appellee, Cross-Appellant, v. Wallace E. BURKEE, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 509

649 F.2d 509

Robert Leslie BUSCHE, Plaintiff-Appellee, Cross-Appellant, v. Wallace E. BURKEE, Defendant-Appellant, Cross-Appellee.

Nos. 80-1248, 80-1345.

United States Court of Appeals Seventh Circuit.

Argued Jan. 7, 1981.

Decided May 21, 1981.

James W. Conway, Kenosha, Wis., for defendant-appellant, cross-appellee.

Walter W. Stern, Kenosha, Wis., for plaintiff-appellee, cross-appellant.

Before CUMMINGS and CUDAHY, Circuit Judges, and BONSAL, Senior District Judge. ^*

CUDAHY, Circuit Judge.

This case arises out of the August 12, 1974 termination of plaintiff-appellee, cross-appellant Robert Leslie Busche from his employment as a police officer for the City of Kenosha, Wisconsin. The district court found that this termination violated Busche's due process rights under the Fourteenth Amendment to the United States Constitution and awarded compensatory and punitive damages, attorney's fees and costs to Busche. ¹ Defendant-appellant, cross-appellee Wallace E. Burkee, the former mayor of Kenosha, does not contest the district court's finding that Busche was terminated without due process. Burkee appeals only from the amount of damages, fees and costs awarded to Busche. On cross-appeal, Busche challenges other aspects of the district court's judgment. We affirm the district court, except for its award of attorney's fees, which is remanded for further consideration in light of our opinion in Muscare v. Quinn, 614 F.2d 577 (7th Cir. 1980).

I.

Robert Leslie Busche joined the Kenosha police department as a patrolman on May 1, 1969. ² One of his responsibilities as a patrolman was to complete State of Wisconsin motor vehicle forms entitled "Application for Registration and Certificate of Title" ("Section 2101 forms"). On the back of these forms, which were used to register cars that were new or registered in a different county, the following instructions appear in a box designated "Law Enforcement Officer's Certificate of Inspection": "Identification of Engine and Serial numbers must be taken directly from vehicle. This is to certify that I have personally checked the vehicle described on the reverse side of this application and found the numbers to be: ________."

Sometime in May 1974, Robert L. Bosman, the Kenosha Chief of Police, was informed by a Federal Bureau of Investigation ("FBI") agent that Busche and Thomas A. Fredericksen, also a Kenosha police officer, were cooperating in a federal grand jury investigation of an interstate car theft conspiracy. The Kenosha police department joined in this investigation, which focused, inter alia, on the activities of Busche, Fredericksen and Leslie Eugene White, the owner of White Auto Sales, a car dealership located a few miles outside the Kenosha city limits. Bosman learned from this investigation that Busche and Fredericksen were alleged to have signed 2101 forms for White without physically inspecting the identification numbers of the vehicles for which the 2101 forms were prepared.

In an eleven count indictment returned on August 5, 1974 against White and others, Busche and Fredericksen were named as unindicted co-conspirators in the car theft ring because of their role in signing 2101 forms for White. ³

After learning of this indictment from an article in the August 6, 1974, Milwaukee Sentinel, Mayor Burkee called Bosman to inquire about Busche's and Fredericksen's involvement in the activities described in the indictment. Bosman informed Burkee that the police department had been investigating the matter in conjunction with the FBI since May 1974. Also on August 6, 1974, after consultation with his staff, Bosman decided to suspend Busche with pay until the investigation was completed.

Sometime between August 6, 1974 and August 9, 1974, Mayor Burkee verbally instructed Bosman to terminate Busche's employment. Bosman informed the Mayor that, under Wisconsin law, Busche could not be terminated without a hearing before the Kenosha Police and Fire Commission (the "Commission"). ⁴ Burkee, however, insisted that Busche be terminated without a hearing, stating to Bosman, "Do you want a couple of crooks on the Police Department?"

At a second meeting on August 9, 1974, Mayor Burkee again ordered Bosman to terminate Busche's employment, and said in reference to Busche and Fredericksen, "These men will never be police officers in this city again." At that meeting, Inspector of Police Joseph H. Trotta also informed Burkee that it would be unfair and unjust to terminate Busche and Fredericksen without a hearing. At the direction of Burkee, Busche and Fredericksen were given the option of resigning by August 12, 1974 or being terminated. Neither Busche nor Fredericksen resigned. On August 12, 1974, Bosman sent written notices of termination to both men. ⁵

At the time he was terminated, Busche received a copy of the charges that Bosman had simultaneously filed with the Kenosha Police and Fire Commission. These charges requested the Commission to "uphold the discharge of Robert L. Busche pursuant to Section 62.13 of the Wisconsin Statutes."

Busche made a written demand for a hearing before the Commission on August 15, 1974. The president of the Commission notified Busche on August 26, 1974 that a hearing would be held on September 11, 1974. At that hearing, the Commission ordered Busche and Fredericksen to be reinstated with back pay after determining that it was improper for them to have been terminated before a decision on the merits of their cases had been rendered by the Commission. At his hearing, Busche testified that he had signed blank 2101 forms for White. On September 22, 1974, after three days of hearings, the Commission ordered that Busche be suspended for sixty days without pay or benefits. Although Busche had the right to appeal this decision to the Kenosha County Circuit Court, he did not do so.

On August 9, 1976, Busche filed a complaint in federal district court alleging that Burkee, Bosman, Trotta and the five members of the Commission had violated his rights under the due process clause of the Fourteenth Amendment to the United States Constitution. By stipulation, plaintiff's action was dismissed against all defendants except Bosman and Burkee. After a three day trial, the district court dismissed the action against Bosman with prejudice and found Burkee liable for $10,000 in compensatory damages, $2,000 in punitive damages, reasonable attorney's fees and costs. In its final decision and order dated February 15, 1980, the district court affirmed its earlier decision and granted Busche's request for attorney's fees in the amount of $9,175.

Burkee filed a timely appeal from the district court's judgment, alleging that the district court wrongly assessed damages, fees and costs. On cross-appeal, Busche challenges the district court's rejection of his claims concerning the constitutional sufficiency of the Commission hearing and the allegedly selective prosecution of Busche and Fredericksen. Busche also challenges the district court's dismissal of Bosman from this action.

II.

Busche challenges the constitutional sufficiency both of the charges filed against him before the Commission and of the Commission's written statement of the evidence relied on and the reasons for its decision.

Due process requires that a person receive notice of charges brought against him so that he may understand why he is being investigated and have an opportunity to prepare a response. See Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974). The charges filed against Busche read, in relevant part:

That Robert Busche did, in his capacity as a Police Officer, make entries on a certificate, to-wit, Form 2101, entitled 'Vehicle Registration and Certificate of Title Application', from the Department of Motor Vehicles, Division of Transportation of the State of Wisconsin, which, in a material sense, he intentionally falsified and he knowingly made false statements on said application for certificate of title in that in May of 1973 the said Robert Busche did sign for White Auto Sales located in Kenosha County, a number of the said 2101 forms wherein he certified that he had inspected serial numbers of motor vehicles when, in fact, he had signed and certified said 2101 forms in blank without making an inspection of any motor vehicle; that said acts by the said Robert Busche were in violation of Section 342.06(2) and 946.12(4) of the Wisconsin Statutes and Rules numbered three (3), sixteen (16) and twenty-seven (27) of the General Rules and Regulations of the Kenosha Police Department, Revised January 30, 1967, Kenosha, Wisconsin.

The district court found that this notice was insufficient, since it "failed to provide (Busche) with a statement of the evidence which would be presented with respect to the charges." 474 F.Supp. at 486. The court concluded, however, that Busche had waived any objection to the sufficiency of the notice when he declined the Commission's offer of an adjournment for the purpose of receiving an elaboration of the charges. The district court also found that Busche was not prejudiced by the incomplete notice since "he had sufficient time to prepare for the hearing, and was able to present all of the evidence which he wished presented." Id.

Without deciding whether Busche waived his right to challenge the sufficiency of the notice, ⁶ we believe the district court properly found that Busche was not prejudiced by the incomplete charges. He was well aware of the nature of the Commission's inquiry, since he had participated closely in the grand jury's investigation of the identical activities. ⁷ Both at trial and on appeal, Busche has been unable to identify any prejudice he suffered because of the insufficient notice. He cannot identify any witnesses or physical evidence he might have presented had he received more complete notice. Moreover, at the Commission hearing itself, the district court found that Busche...