Edmonds v. Board of Fire and Police Com'rs of City of Milwaukee

• Decision Date: 07 January 1975
• Docket Number: No. 320,320
• Citation: 66 Wis.2d 337,224 N.W.2d 575
• Parties: William D. EDMONDS et al., Respondents, v. BOARD OF FIRE & POLICE COM'RS OF the CITY OF MILWAUKEE, Appellant.
• Court: Wisconsin Supreme Court

Page 575

224 N.W.2d 575

66 Wis.2d 337

William D. EDMONDS et al., Respondents, v. BOARD OF FIRE & POLICE COM'RS OF the CITY OF MILWAUKEE, Appellant.

No. 320.

Supreme Court of Wisconsin.

Jan. 7, 1975.

James B. Brennan, City Atty., Rudolph T. Randa, Asst. City Atty., Milwaukee, for appellant.

Gerald P. Boyle, Milwaukee, for respondents.

WILKIE, Chief Justice.

This appeal involves the review of a ruling by the trial court declaring certain proceedings of the appellant, Board of Fire & Police Commissioners of the city of Milwaukee, a nullity. The board had judged respondents, William D. Edmonds and Leonard Lesnieski, two Milwaukee policemen, guilty of 'conduct unbecoming police officers' and ordered them suspended for six days. When the officers petitioned the circuit court for a writ of certiorari to review the board decision, the court issued the writ, declared the findings of guilty a nullity, and ordered the suspensions set aside. The board appeals.

The circumstances giving rise to the misconduct charges occurred on June 28, 1971, in Milwaukee's McGovern park. A complaint was filed with the board charging three Milwaukee policemen, identified only by badge number, with improper conduct on that date and at that place. The complaint by Cleora and Donald Bost, citizens of Milwaukee, alleged that one policeman mishandled Mrs. Bost's daughter and restrained her from leaving the park. The complaint also charged that after repeated requests by the mother, the police officer turned the girl loose but, in the meantime, a crowd had gathered, yelling at the officer to let the child go. The complaint further charged that as the crowd moved in closer, more policemen arrived at the scene, surrounded the whole group, and ordered it to disperse. The officers allegedly grabbed individuals at random, telling them to move out. It was charged that one policeman said to an onlooker named LeRoy Allen, Jr., 'Come on Bum, hit me, hit me, that's what I want you to do, so I can kill you.' It was charged that Allen refused and that he was then grabbed and thrown against a wall by this officer and another who had allegedly drawn guns. There were further allegations that the officers threatened to beat up Allen's sister who tried to come to his aid, and that the officers told Mrs. Bost 'Oh get out of here before we kill all of you.' It was alleged in this complaint that the policemen made derogatory and racist remarks to Allen and placed him and Mrs. Bost's daughter in a squad car and took them to the police station. The complaint did not contain any charges alleging misconduct occurring in the car or at the station.

A hearing was held before the board on this complaint as to two of the officers charged. There were several witnesses, including Mrs. Bost who, while presenting her case without assistance of counsel, testified in accordance with her complaint and identified the respondents as the officers who grabbed Allen at the park, drew their guns and made the threatening statement to her. Allen also testified, substantiating the allegations in the complaint concerning how he was grabbed, thrown to the wall and taunted with requests to hit the respondent Lesnieski. He further testified that both respondents pulled their guns and that one pointed the gun at Allen's stomach. Allen also testified that after he was taken to the police station he was pushed, grabbed, and racially insulted. Three additional witnesses substantiated the testimony of both Mrs. Bost and Allen, but one of these witnesses did not remember seeing any guns drawn.

The respondents testified in their own defense. Both admitted being at McGovern park, trying to disperse the crowd, and scuffling with and arresting LeRoy Allen. Both said, however, that Allen had cursed and taken a swing at one of the officers, and both denied drawing their revolvers or using undue force to subdue and arrest Allen. In addition to respondents, five other witnesses, including three policemen and two bystanders, testified for the defense. All said they had seen no guns drawn. However, the three additional policemen apparently arrived at the scene too late to witness the scuffle with Allen. One of the bystanders said she did not even see the two respondents at the scene, and the other was 40 to 50 years away and said he did not see the confrontation between Allen and the police.

After the hearing was concluded, the chairman of the board read the following:

'. . . the Board having heard the testimony of the witnesses and the arguments of the persons represented by counsel and the persons in their own stead, and having been fully advised in the premises, now, by a vote of three to one, makes its findings as follows:

'That the complainant, Cleora Bost, is an adult and a resident of the City of Milwaukee.

'Two, that the complaint was filed on behalf of herself and a minor, LeRoy Allen, Jr., age sixteen.

'Three, that it was established by a preponderance of the evidence that the conduct of the accused officers toward one LeRoy Allen, Jr., and other persons present at the time of the incident alleged in the complaint, constituted conduct unbecoming police officers.'

The following interchange then occurred between defense counsel and the chairman:

'Mr. Boyle: Well, may I ask for the purposes of the record, Mr. Chairman--the allegation of conduct unbecoming an officer, that is the finding of the Commission? There are no specific acts constituting that misconduct?

'The Chairman: No.'

Six days later, the respondents moved the board for a new hearing based on newly discovered evidence and also to make the finding of 'conduct unbecoming an officer' more definite and certain.

The newly discovered evidence consisted of affidavits from two persons who had witnessed the McGovern park incident at close hand, had read about the board's decision in the paper and desired 'to set the record straight as to what really happened.' One affiant was employed by the park to supervise boat rentals, and the other was on a family picnic at the time. Both said they were less than 20 feet from the respondents at all times during the incident, that respondents did not pull any weapons or use any profane language, and that respondents used force only to restrain a child and take him to the squad car. The board denied both defense motions, with the chairman stating as a reason that its decision to find the officers guilty did not depend 'on whether a specific act did or did not occur,' but rather was based upon 'the totality of the conduct of the accused officers.'

The respondents petitioned the circuit court for Milwaukee county for a writ of prohibition and the Hon. JOHN A. DECKER presiding for the circuit court ordered the board to reconsider its denial of the motion for a further hearing on the grounds of the alleged newly discovered evidence. After the board reconsidered the matter on the basis of the five standards applicable to motions for new trials based on newly discovered evidence in civil cases, ¹ the board reiterated its position and denied the further hearing.

After the court dissolved its previous order restraining the board from proceeding further, the board itself held a punishment hearing with 11 character witnesses appearing on behalf of the respondents, and then ordered each respondent to be suspended from work for a period of six days.

The respondents appealed the board's decision to the circuit court for Milwaukee county. Later this appeal was abandoned and the respondents shifted their request for a review to a petition for a writ of certiorari. The circuit court issued the writ and ordered an outright dismissal of the charges against the respondents and it is from that order that the board now appeals.

Two preliminary issues are presented:

1. Is the circuit court's order appealable?

2. To what extent is the judgment issued by the circuit court, Judge JOHN A. DECKER presiding, res adjudicata as to the claims asserted by the respondents in the certiorari proceeding later brought in the circuit court for Milwaukee county?

The order is appealable.

In the first place, the matter was brought by certiorari to the circuit court. This procedure is sanctioned by what we said in State ex rel. Kaczkowski v. Fire & Police Comm., ² as follows:

'. . . We hold, therefore, that certiorari is available to review orders of the board of fire and police commissions under ch. 586, Laws of 1911 when it is alleged that the board acted beyond its jurisdiction or that it proceeded upon an incorrect theory of the law.' ³

This court also noted, however:

'. . . we wish to point out that this remedy should be used sparingly and only when those errors clearly appear.' ⁴

Thus, the trial court had certiorari jurisdiction to review the board's decision as to any errors of law.

In the circuit court, the respondents' challenge to the board's action was on two principal grounds: the board's findings were not sufficiently explicit and the board erred in refusing to hold a further hearing. Both questions present issues of law, and as such were properly determined on certiorari. In turn, since these are issues of law, that determination is reviewable on appeal to this court insofar as it pertains to questions of law only.

The second preliminary issue arises from the fact that in seeking a writ of prohibition from the circuit court with Judge JOHN A. DECKER presiding, respondents argued that the board's findings were insufficiently specific and that the board erred in not granting a further hearing. Although the petition was dismissed 'on its merits,' the board now argues that that determination was res adjudicata as to the respondents' claims in the certiorari proceedings. The board's contentions are without merit. In the first place, the issue was not raised below ⁵ and for that reason alone cannot be raised here. ⁶ Furthermore, the basis for the dismissal by the trial court of the petition for the writ of...