Jessen v. Village of Lyndon Station, 81-C-371.

Citation519 F. Supp. 1183
Decision Date31 July 1981
Docket NumberNo. 81-C-371.,81-C-371.
PartiesWilliam G. JESSEN, Plaintiff, v. VILLAGE OF LYNDON STATION; Law Enforcement Standards Board; Howard Bjorklund, individually and as Administrator and Secretary of the Law Enforcement Standards Board; William A. Harvey, individually and as Chairman of Law Enforcement Standards Board, Defendants.
CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin

Daniel W. Hildebrand, James R. Cole, Ross & Stevens, Madison, Wis., for plaintiff.

Nadim Sahar, Asst. Atty. Gen., Madison, Wis., and Thomas J. Curran, Mauston, Wis., for defendants.

ORDER

CRABB, Chief Judge.

This is a civil action for injunctive relief brought pursuant to 42 U.S.C. § 1983, with jurisdiction premised on 28 U.S.C. §§ 1331 and 1343. Presently before the court is plaintiff's motion for a preliminary injunction enjoining defendants from causing plaintiff's employment to be terminated without a pretermination hearing. The parties have presented their arguments on this motion in written briefs and at a non-evidentiary hearing on July 17, 1981.

From the papers filed in this case, as well as from the oral arguments, it appears that the material facts are not in issue. Based on the entire record, I find that for purposes of deciding this motion, there is no genuine issue as to the material facts set forth under the heading "Facts."

FACTS

On April 27, 1973, plaintiff Jessen was convicted in a Wisconsin state court of 26 felony counts of misconduct in public office. The acts for which he was convicted consisted of falsifying traffic citations while serving as chief deputy sheriff of Juneau County, Wisconsin. Plaintiff was sentenced to 26 concurrent one-year terms for each conviction, but the sentences were stayed and he was placed on probation for two years. Plaintiff completed his probation and received a Certificate of Discharge from the Wisconsin Department of Health and Social Services, effective June 5, 1975.

On September 30, 1974, the Village Board of Lyndon Station, Wisconsin, appointed plaintiff as chief of police, sanitary landfill attendant and sewer operator. The initial appointment was for a six-month probationary period. At the time of the appointment, board members were aware of plaintiff's convictions for misconduct in public office, but the members and Jessen believed that the convictions were misdemeanors.

At the time of the appointment of Jessen, the village board did not notify the Wisconsin Law Enforcement Standards Board or the Training and Standards Bureau of plaintiff's appointment and it did not submit an "Application for Enrollment in a Training and Standards Program" form DJLE-303 to the board or bureau.

The board and the bureau learned of plaintiff's appointment as police chief through their field representatives. By letter dated October 14, 1974, the director of the Training and Standards Bureau informed the mayor of the Village of Lyndon Station that the village was required to submit the form DJLE-303 so that the bureau could assess plaintiff's eligibility and qualifications to be chief of police. By letter dated November 18, 1974, an assistant attorney general of the State of Wisconsin informed the mayor that the form had to be submitted, and that if it was not submitted, the assistant attorney general would seek a court order compelling submission. On or about December 2, 1974, the bureau received the requested form.

Based upon the information provided in the form, the Law Enforcement Standards Board determined that plaintiff did not meet the minimum eligibility requirements to be a law enforcement officer because of his prior felony convictions. The board refused to certify plaintiff as eligible to serve as a law enforcement officer, and the board continues to refuse to certify plaintiff as eligible.

By letter dated December 9, 1974, an assistant attorney general informed the mayor of Lyndon Station of the board's determination that plaintiff was ineligible for appointment as a law enforcement officer. The village did not accept the board's determination and refused to terminate plaintiff's appointment. By letter dated January 2, 1975, an assistant attorney general reiterated the board's position that plaintiff was not eligible to serve as a law enforcement officer.

On March 24, 1975, the village board considered plaintiff's employment and determined that he had performed well as police chief, and the board terminated plaintiff's probationary status and hired him to serve on a full-time basis, effective April 1, 1975. The village and plaintiff entered into an employment agreement effective April 1, 1975. The agreement included provisions that plaintiff could be removed only for cause, and that plaintiff would not be removed "except upon notice and hearing before an impartial decision-maker appointed by the Village Board."

In July, 1977, the Law Enforcement Standards Board petitioned the Circuit Court of Juneau County for a writ of mandamus compelling the village to remove plaintiff as chief of police. The circuit court granted the writ and its decision was subsequently affirmed by the Wisconsin Court of Appeals and the Wisconsin Supreme Court. Wis. Law Enforce. Stds. Bd. v. Lyndon Station Vil., 98 Wis.2d 229, 295 N.W.2d 818 (Ct.App.Wis.1980), aff'd, 101 Wis.2d 472, 305 N.W.2d 89 (1981).

Plaintiff was not a party to any of the proceedings in the state courts. The state supreme court denied his request to intervene in the case, but the court did allow plaintiff to file an amicus curiae brief. Plaintiff has not been afforded any kind of hearing regarding termination of his job as chief of police. The board has made no provision for either a pre-termination or a post-termination hearing or proceeding to which plaintiff would be a party.

Since commencing employment as chief of police of Lyndon Station, plaintiff has performed his duties satisfactorily. Plaintiff has participated in criminal investigations and his testimony will be necessary at trial. Plaintiff is 54 years old, and earns $700 per month from his job as police chief, sanitary landfill attendant and sewer operator. Plaintiff supports his wife and one minor child.

OPINION

"The purpose of a preliminary injunction is to preserve the object of controversy in its then existing condition, i. e., to preserve the status quo." Equal Emp. Opp. Com'n v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980) (citation omitted). In order to succeed on his motion for a preliminary injunction, plaintiff must show 1) a reasonably good chance to succeed on the merits of his complaint; 2) a significant threat of irreparable harm to plaintiff if the injunction is not granted; 3) that the balance of harms to defendants and plaintiff if an injunction is or is not issued favors issuance; and 4) that the public interest will not be disserved by issuance of the injunction. American Dairy Queen v. Brown-Port Co., 621 F.2d 255, 257 (7th Cir. 1980); Banks v. Trainor, 525 F.2d 837, 841 (7th Cir. 1975) cert. denied, 424 U.S. 978, 96 S.Ct. 1484, 47 L.Ed.2d 748 (1976).

Plaintiff bases his motion for a preliminary injunction on both substantive and procedural arguments.

A. Equal Protection

Plaintiff claims that the rule under which the Law Enforcement Standards Board operated to determine that plaintiff was not eligible to be a law enforcement officer is unconstitutional as a violation of his right to equal protection under the law. Plaintiff is unlikely to succeed on the merits of this claim.

Pursuant to Wis.Stats. § 165.85, the Wisconsin Law Enforcement Standards Board may establish criteria governing who may be law enforcement officers in the state. The board has adopted a rule providing that

The applicant for a position as a law enforcement officer shall not have been convicted of any federal felony or of any offense which if committed in Wisconsin could be punished as a felony unless the applicant has been granted an absolute and unconditional pardon.

Wis.Adm.Code LES 2.01(1)(d).

In its decision affirming the issuance of a writ of mandamus requiring the Village of Lyndon Station to discharge plaintiff, the Supreme Court for the State of Wisconsin construed this administrative rule as disqualifying from positions as law enforcement officers those persons who have been convicted of felonies which bear "a substantial relationship to the duties of a police officer." Law Enforce. Stds. Bd. v. Lyndon Station, 101 Wis.2d at 490-92, 305 N.W.2d 89. (In the same opinion, the court held that the felonies of which this plaintiff was convicted bore a substantial relationship to his job as a police officer.)

Because it appears that neither a fundamental right nor a suspect class (e. g., classification based on race) is involved in this case, it is likely that a "rational basis" standard of review will be applied to the rule attacked by plaintiff. See e. g., Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). Under the rational basis test, plaintiff's chance of success on the merits of his equal protection claim is dubious at best, particularly in light of the Wisconsin supreme court's construction of the rule under attack. Accordingly, plaintiff's equal protection claim does not entitle him to a preliminary injunction.

B. Due Process: Liberty Interest

Plaintiff claims that he has a right to procedural due process before he may be terminated from his position as police chief. He contends that the proposed termination is stigmatizing in that it calls into question his good name, honor and integrity, and forecloses his future chances of employment and, therefore, impinges upon a liberty interest requiring due process protection. Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). It is unlikely that plaintiff will succeed on the merits of this claim. While it may be difficult for plaintif...

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