Millsap v. Cedar Rapids Civil Service Com'n

• Decision Date: 19 January 1977
• Docket Number: No. 2--57276,2--57276
• Citation: 249 N.W.2d 679
• Parties: Kenneth E. MILLSAP, Appellant, v. CEDAR RAPIDS CIVIL SERVICE COMMISSION et al., Appellees.
• Court: Iowa Supreme Court

Page 679

249 N.W.2d 679

Kenneth E. MILLSAP, Appellant, v. CEDAR RAPIDS CIVIL SERVICE COMMISSION et al., Appellees.

No. 2--57276.

Supreme Court of Iowa.

Jan. 19, 1977.

Robert C. Nelson and Stephen B. Jackson, Cedar Rapids, for appellant.

David F. McGuire, City Atty., and Benjamin W. Blackstock, Cedar Rapids, for appellee.

Heard by MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

MOORE, Chief Justice.

Plaintiff policeman appeals from district court judgment upholding decision of Cedar Rapids Civil Service Commission wherein he was temporarily suspended without pay and demoted from lieutenant to detective. We affirm.

By stipulation the factual record made before the Commission constituted the record in the lower court.

We believe the following is a reasonable summary of the facts: On March 19, 1973, Kenneth Millsap, a 15-year veteran Cedar Rapids policeman and then lieutenant of detectives, and other off-duty police officers, traveled to Guttenburg, Iowa to fish from a barge in the Mississippi River. The excursion commenced at 3:00 a.m. and continued until after 3:00 p.m. when the men in Millsap's automobile returned to Cedar Rapids. Millsap and various other officers present on the trip testified he drank beer early in the morning prior to becoming ill; thereafter he switched to apricot brandy. There was conflicting testimony as to whether the combination of his weakened physical condition and alcohol resulted in his intoxication by the time he left Guttenburg. His passengers noticed nothing peculiar; other officers testified he was intoxicated when he left the barge and drove 'erratically' later that afternoon upon his return to Cedar Rapids.

At approximately 6:30 p.m. Millsap drove two fellow officers to their homes and was enroute to his home when his vehicle ran out of gas. Millsap pulled into the May Drug parking lot at 42nd Street and Center Point Road, N.E., in Cedar Rapids, and later claimed he was attempting to call his wife from a public telephone. A private citizen, after observing Millsap for several minutes, called the police department and reported a man was 'going through the phone book page by page and acted as if he were drunk or something.' Patrolmen Young and Walton were dispatched to the scene. Several private citizens observed the events following the arrival of the two patrolmen. They testified the officers did not exercise excessive force in meeting Millsap's resistance to arrest and removal from his vehicle.

Both Young and Walton testified at the Commission hearing that Millsap was intoxicated and refused to show identification when asked. Furthermore he had stated his name was 'Smith', said the car was stolen, and threatened that he had a gun and would 'blow them apart' if the harassment did not cease. After telling both officers to 'get fucked', Millsap attempted to drive away and almost ran over one of them. Later they were able to bodily remove him from his automobile after a violent struggle. It was only then that the officers recognized Millsap, a fellow police officer. Millsap was unshaven and was wearing a jacket or sweatshirt with a hood down over his head and around his face. One of the civilian witnesses testified he could not see Millsap's face until after he was removed from the automobile. An eight-year civilian police secretary testified she did not recognize Millsap at the police station booking until he spoke. She opined he was intoxicated.

Millsap did not deny the events at the scene of his arrest but testified the two officers knew who he was from the outset but were harassing him for the purpose of setting him up.

As a result of the incident Millsap was arrested, booked and confined in the city jail for over two hours. Young and Walton signed informations charging Millsap with intoxication and resisting an officer. He was later taken home by other officers. They opined he was not intoxicated at that time.

The next morning Millsap met with Chief of Police George Matias and Assistant Chiefs Clift and Vanous. At this meeting Millsap admitted he had overreacted and said he was sorry the incident had gotten out of control. After it was agreed the informations would not be filed and the matter would be handled within the police department, Millsap signed a release of any liability and agreed to a two-week leave with pay.

After his return there was interdepartmental dissension over the March 19 incident. Millsap testified there were rumors and innuendos which seriously impaired his ability to perform his duties. As a consequence he wrote a letter to Chief Matias detailing his complaints. On advice of counsel, he filed a notice of tort claim against the City on May 18 which alleged he and his wife had suffered damage in the amount of $500,000.

On May 24 Chief of Police Matias advised Millsap he had been 'indefinitely suspended.' Millsap appealed to the Civil Service Commission as provided by section 365.20 of the 1973 Code--now section 400.20 as renumbered in 1974. The Chief of Police thereafter filed written specifications charging that on March 19, 1973, (1) Millsap had conducted himself in a manner unbecoming a police officer and detrimental to the service contrary to chapter 365 of the 1973 Code and the Cedar Rapids Police Rules and Regulations, (2) that he was intoxicated and (3) that he resisted, assaulted and threatened police officers performing their duties.

The Civil Service Commission, after hearing 32 witnesses and study of several exhibits, found the first and third written specifications had been proven. It found intoxication had not been sufficiently shown due to conflict of opinions and the lack of a scientific test for sobriety. The Commission unanimously modified the suspension to 60 days without pay and ordered Millsap demoted to the rank of detective. He returned to work as a detective.

Subsequently, he appealed to the district court as provided by section 365.27 and raised the issues of constitutionality of section 365.19 and Cedar Rapids Police Rule 20, section 6 and also alleged each was inapplicable to his off-duty conduct. Additionally he asserted the findings and order of the Chief of Police and the Commission were arbitrary and capricious. Defendants denied plaintiff's claims and affirmatively alleged waiver of the right to appeal by acceptance of reinstatement.

After reviewing de novo the entire record of the administrative hearing, the trial court concluded Millsap's off-duty actions constituted 'misconduct' within the meaning of section 365.19 and affirmed the Commission ruling. This appeal followed.

I. Our review is de novo. We give weight to trial court's findings of fact but are not bound by them. Brightman v. Civil Serv. Com'n of City of Des Moines, Iowa, 204 N.W.2d 588, 590. Rule 344(f) 7, Rules of Civil Procedure.

II. We first consider defendants-appellees' pleaded affirmative defense that by accepting the benefits inherent in the Commission's ruling consisting of pay and reinstatement, plaintiff-appellant waived his right to appeal. The lower court rejected this contention.

Generally compliance with a judgment is deemed a waiver of the right to appeal. City of Cedar Rapids v. Cox, 250 Iowa 457, 467, 93 N.W.2d 216, 222; 4 C.J.S. Appeal & Error § 212; Annot. 'Appeal--Compliance with Judgment as Barring Right to Appeal', 39 A.L.R.2d 153. The burden is on one who claims the loss of rights by an adverse party through acquiescence to show facts supporting his contention. Union County Board v. Hotel Inv. Co., 250 Iowa 59, 61, 92 N.W.2d 397--9.

Defendants properly raised this matter in their answer in district court. However they presented no evidence when the case was submitted which indicated Millsap's employment status. Thus we could well dispose of the issue on the basis that defendants failed to carry their burden of proof.

We elect however to proceed to the merits of this issue and find defendants' arguments unpersuasive for two reasons. First, we disagree that plaintiff acquiesced in a benefit as that term is generally understood. After having been 'indefinitely suspended' he was reinstated, but docked 60 days wages and demoted from lieutenant to detective. To hold that by going back to work he waived his right to appeal any discipline meted out to him by his superiors is a degree of sophistry in which we refuse to indulge.

A further reason for rejecting defendants' argument is that in recent years we have retreated from the severe appellate waiver doctrine which they espouse. In Vermeer v. Sneller, Iowa, 190 N.W.2d 389, 395 we held that payment of court costs pending an appeal did not constitute waiver and stated:

'We have said waiver is the voluntary relinquishment of a known right. Babb's, Inc. v. Babb, 169 N.W.2d 211, 213 (Iowa 1969); Perkins v. City National Bank of Clinton, 253 Iowa 922, 935, 114 N.W.2d 45, 52--53 (1962). It must be made intentionally and with knowledge of the circumstances. Grandon v. Ellingson, 259 Iowa 514, 521, 144 N.W.2d 898, 903 (1966). Certainly it would be ignoring realities to say these plaintiffs, in paying the minimal costs below, knowingly and intentionally, with knowledge of the circumstances, waived their right to a decision from this court.'

In Hegtvedt v. Prybil, Iowa, 223 N.W.2d 186, 188--189, we held that payment of a judgment under compulsion did not amount to a voluntary waiver of the right to appeal.

In In re Marriage of Abild, Iowa, 243 N.W.2d 541, 543, we stated that when an appellant accepts only that which the appellee concedes is due him under the judgment, he is not barred from prosecuting his right to a further recovery on appeal.

Consistent with this recent trend we again fail to find a voluntary waiver of the right to appeal. To hold that in order to pursue an appeal plaintiff must refuse reinstatement and thus remain outside the area of law enforcement where he has earned his livelihood for 15 years while his appeal is processed, a period of...