Milwaukee Police Ass'n v. Bd. of Fire & Police Comm'rs of Milwaukee

• Decision Date: 26 February 2013
• Docket Number: No. 11–2314.,11–2314.
• Parties: MILWAUKEE POLICE ASSOCIATION and Melissa Ramskugler, Plaintiffs–Appellants, v. BOARD OF FIRE & POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Edward Flynn, and the City of Milwaukee, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

708 F.3d 921

MILWAUKEE POLICE ASSOCIATION and Melissa Ramskugler, Plaintiffs–Appellants,

v.BOARD OF FIRE & POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Edward Flynn, and the City of Milwaukee, Defendants–Appellees.

No. 11–2314.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 2012.

Decided Feb. 26, 2013.

Jonathan Cermele (argued), Brendan P. Matthews, Attorneys, Cermele & Associates, Milwaukee, WI, for Plaintiffs–Appellants.

MaryNell Regan (argued), Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants–Appellees.

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge.

In June 2009, Melissa Ramskugler found herself trapped in a frustrating liminal state. She had satisfied the State of Wisconsin's requirements to become a police officer but had not yet completed the additional probationary period mandated by Milwaukee's Board of Fire & Police Commissioners. As a result, when the Board fired Ramskugler, it claimed it did not need to follow Wisconsin's statutorily prescribed procedures for terminating police officers. Feeling that she was treated unfairly, Ramskugler sued. The Milwaukee Police Association, the union representing Milwaukee officers, joined her. Together, they claimed that Ramskugler was wrongfully deprived of property without due process. After the district court granted summary judgment in favor of the defendants, the plaintiffs appealed. Prior to oral argument, however, Ramskugler signed a complete settlement and release. The union never had standing to bring suit on its own behalf, and any claims previously derived from its membership are now moot. Accordingly, we dismiss this appeal.

I. Background

In Wisconsin, police recruits must successfully complete a period of probation before becoming fully qualified officers. Statewide requirements are set by the Law Enforcement Standards Board (“LESB”) and include over 400 hours of training. SeeWis. Stat. § 165.85. After a recruit completes this curriculum, the local police department requests that the LESB certify the recruit as a “law enforcement officer.” In the City of Milwaukee, however, LESB certification does not end the probationary period. As a city with a population over 150,000 people, Milwaukee is classified under Wisconsin law as a “1st class” city. SeeWis. Stat. § 62.05(1)(a). First class cities have their own boards of fire and police commissioners, which have the authority to “adopt rules to govern the selection and appointment” of city police officers. Wis. Stat. § 62.50(3)(b). Milwaukee's Board has interpreted that provision as conveying authority to adopt more demanding probation requirements than those mandated by the LESB. Specifically, no new recruit in Milwaukee becomes a full officer until she has accrued sixteen months of “actual active service.” Board Rule XI, Section 7(a). Because the LESB curriculum is often completed in less than sixteen months, a police recruit in Milwaukee can remain in probationary status even after satisfying the statewide requirements.

Melissa Ramskugler found herself mired in that precise predicament. Ramskugler's probation with the Milwaukee Police Department (“the Department”) began on October 8, 2007. Just three days later, Ramskugler injured her right knee during training. To give her recuperation time, the Department assigned Ramskugler to clerical duties for approximately one month. Then, in November, she was given 2.5 months of leave for surgery on the injured knee. Ramskugler subsequently returned to duty but remained in a clerical capacity for a number of months. In that time, she obtained medical clearance for unrestricted duty and then had to wait for the next recruit class to begin.

On June 8, 2008, Ramskugler started training with that class. Unfortunately, two weeks before graduating in November, Ramskugler re-injured the same knee. She had already completed the course requirements, however, so the Department still sent her name to the LESB for certification. After more leave and a second surgery on her knee, Ramskugler returned to clerical duties on January 27, 2009. Then, in March, the LESB certified her. At that point, Ramskugler was a “law enforcement officer,” as defined by the LESB. Yet, she was still on probation in the eyes of the Milwaukee Board. The Board did not consider Ramskugler's time performing clerical duties as “actual active service.” Therefore, she still had several more months of service to complete before fulfilling Milwaukee's sixteen-month probationary period. Doing so proved elusive for Ramskugler. Months later, she had still failed to obtain a new medical clearance for unrestricted duty. As a result, on June 11, 2009, Police Chief Flynn notified the Board that he had terminated Ramskugler for being unable to proceed with required training.

Subsequently, Ramskugler, along with the Milwaukee Police Association (“MPA”), filed suit in the Milwaukee County Circuit Court. Together, they argued that Ramskugler was deprived of property without due process. Specifically, when firing Ramskugler, the Board did not follow the provisions of Wis. Stat. § 62.50(11)–(18), which set out mandatory procedures for terminating police officers. These provisions require, for example, discharge only “for cause and after trial,” Wis. Stat. § 62.50(11), and continued pay while a charge against an officer is pending, Wis. Stat. § 62.50(18).¹ Importantly, these protections apply only to a “member of the police force” or a “member of the force”—the two terms used consistently throughout the provisions. SeeWis. Stat. § 62.50(11)– (18). The statute, however, does not define “member of the force,” nor does it distinguish probationary officers when using the term. In the absence of further guidance, Ramskugler argued that the protections should apply to anyone who has completed the state training requirements and has been certified by the LESB.

The Board disagreed. It countered that Wis. Stat. § 62.50(3)(b) gives it the authority to set rules governing appointment of officers; therefore, an appointee does not become a “member of the force” until completing the city's extended probation. Since Ramskugler had completed only the state, but not the city, requirements, the Board could end her employment without following the statutorily prescribed procedures. See Board Rule XI, Section 7(a). According to Ramskugler, this reading of the statute is too broad; the state legislature did not give local boards the authority to extend probationary periods beyond the time mandated by the LESB.

The co-defendants—the Board, Edward Flynn (the Police Chief), and the City—removed the case to the United States District Court for the Eastern District of Wisconsin. On May 23, 2011, that court issued an order granting the defendants' motion for summary judgment. For unknown reasons, the district court did not address the claims with respect to the MPA in that ruling. On June 8, Ramskugler and the MPA timely filed a notice of appeal. They challenged the grant of summary judgment and requested that we certify two questions to the Wisconsin Supreme Court: (1) whether the protections afforded by Wis. Stat. § 62.50 apply to someone in Ramskugler's position; and (2) whether the Board has the authority to create probation requirements that exceed those set by the LESB.

On July 15, while this appeal was pending, Ramskugler signed a Settlement Agreement and General Release. This Agreement released all claims against the defendants and waived any right to a hearing or other process that Ramskugler may have had. The Agreement also provided Ramskugler with $150,000 “for alleged compensatory damages, for alleged personal physical injuries, and for disputed workers' compensation claims and attorneys fees.” (Dkt. 11–2 at ¶ 3.) The Agreement, however, allowed for this appeal to continue “as a declaratory judgment action only.” ( Id. at preamble.) On July 21, the MPA signed a separate Agreement that pledged not to seek damages or attorney's fees if it succeeded in this appeal. (Dkt. 11–3 at ¶ 1.) Again, the Agreement allowed this suit to proceed solely as a declaratory judgment. ( Id. at preamble.) The MPA has not identified any other union member in Ramskugler's position.²

II. Analysis

To begin, we note that we need only address the claims as they relate to the MPA. At oral argument, Appellants' counsel acknowledged that, at most, only the MPA could now bring suit. We agree. Under the Settlement Agreement, Ramskugler no longer has a personal stake in the outcome of this case. She has received monetary compensation, waived any right to a hearing she may have had, and has released all other potential claims. There is no further relief this court can grant. Accordingly, Ramskugler no longer satisfies the requirements of federal jurisdiction. See Camreta v. Greene, ––– U.S. ––––, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (“parties must have the necessary stake not only at the outset of litigation, but throughout its course”); see also Ameritech Corp. v. Int'l Bhd. of Elec. Workers, Local 21, 543 F.3d 414, 419 (7th Cir.2008) (“settlements on appeal generally result in the dismissal of an appeal”). The MPA, however, still seeks reversal of the summary judgment and certification of the two aforementioned questions to the Wisconsin Supreme Court. Appellees contend that the MPA no longer has standing to bring this claim and that, alternatively, its claims are also moot. We address each argument in turn.

A. Standing

Article III, § 2 of the Constitution limits the jurisdiction of federal courts to “Cases” or “Controversies.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). As such, federal courts are prohibited from rendering advisory opinions; they cannot divine on “abstract dispute[s] about the law.” Alvarez v. Smith, 558 U.S. 87, 130 S.Ct. 576, 580, 175 L.Ed.2d 447 (2009). This restriction is implemented in the...