Miskovich v. City of Helena, 13210

• Decision Date: 24 June 1976
• Docket Number: No. 13210,13210
• Citation: 170 Mont. 138,551 P.2d 995
• Parties: George D. MISKOVICH, Plaintiff and Respondent, v. CITY OF HELENA, Montana, a Municipal Corporation, et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 995

551 P.2d 995

170 Mont. 138

George D. MISKOVICH, Plaintiff and Respondent, v. CITY OF HELENA, Montana, a Municipal Corporation, et al Defendants and Appellants.

No. 13210.

Supreme Court of Montana.

Submitted April 21, 1976.

Decided June 24, 1976.

C. W. Leaphart, Jr. (argued), Helena, for defendants and appellants.

Loble, Picotte & Pauly, Gene A. Picotte (argued), Helena, for plaintiff and respondent.

DALY, Justice.

The City of Helena appeals from a judgment of the district court, Lewis and Clark County, Hon. Nat Allen presiding reversing the Helena Police Commission's findings and adjudication and restoring policeman George D. Miskovich to the rank of sergeant with retroactive pay.

On April 25, 1974, Sergeant Miskovich an eight year veteran of the Helena Police Department, with a spotless record and an early appointment to the rank of sergeant, was charged by the Chief of Police with three specific episodes, each alleged to constitute 'misconduct in office', 'conduct unbecoming an officer' and conduct 'such as to bring reproach upon the police force'. The charges were in writing:

1. Cameron arrest, February 3, 1974.

(a) Striking arrestee Cameron in the face while transporting him to police station, breaking Cameron's nose.

(b) Grabbing Cameron by the hair in the police station and pounding his head upon the booking desk on two or more occasions.

(c) Throwing Cameron to the floor and beating him with fists after Cameron requested permission to take a breathylizer test.

2. Coldwell arrest, March 4, 1973.

Putting a 'full Nelson' upon an arrestee named Coldwell, then releasing Coldwell, grabbing him with one hand and hitting him in the face.

3. St. Marks arrest, June 23, 1973.

Arresting a woman named Mrs. St. Marks for public drunkenness, and when this woman indicated that she did not desire to go into the police station, grabbing her, pulling her forward and 'hitting her in the face with her purse', at the same time shouting accusations at her and holding her by the hair.

All three charges were contained in one written document. The first occurred about three months prior to charges, the remaining two approximately a year before. It specifically recited that all charges were brought under section 11-1806(1), R.C.M.1947, notifying Miskovich that he would be tried before the police commission in accordance with the statute. In the same paragraph Miskovich, on those identical charges, was suspended without pay and without hearing, effective immediately. This suspension without notice or hearing was expressly done by the Chief of Police in accordance with section 11-1806(10), R.C.M.1947.

Miskovich filed a mandamus proceeding in the district court, Lewis and Clark County, successfully obtaining a writ of mandate to forbid the summary suspension beyond the last day of April 1974, because the statute provided a maximum suspension under subsection (10) of ten days in any one calendar month, and he was suspended on April 25. Miskovich appealed this summary five day suspension to the police commission, as provided in the statute. That appeal was heard on the same evidence as were the charges under subsection (1). The police commission held against Miskovich on the suspension appeal, and because the legislature did not provide for a further appeal, the summary discipline under subsection (10) became final.

The Helena Police Commission, a three man body, was officially chaired by Commissioner Pfeiffer, who became ill and left the hearing. At his departure it was apparently stipulated by all parties that Pfeiffer would be excused and would not participate further in the case. The parties agree there was a stipulation but the specific terms are in doubt. Pfeiffer missed the testimony of several witnesses, plus most of the direct examination of Miskovich. He returned to the hearing in the course of Miskovich's direct examination, and proceeded to participate in the commission's findings and decision, signing as chairman of the police commission.

The police commission found the charges arising out of the Coldwell arrest of March 1973 were not proven. Those arising out of the St. Marks arrest of June 1973, were found proven in their entirety. Those arising from the Cameron incident of February 1974 were found proven in part, specifically the use of excessive force in backhanding Cameron and slamming his face into the booking counter. In accordance with these findings, the commission suspended Miskovich an additional thirty days and permanently reduced his rank from sergeant to patrolman.

These penalties were approved by the city manager. The statutory action for review in the district court by Miskovich ensued. The district court reviewed the record in the manner directed by the decision of this Court in a prior proceeding by the City of Helena in supervisory control, (City of Helena v. District Court, 166 Mont. 74, 530 P.2d 464, 32 St.Rep. 52.), reversed the police commission decision and restored Miskovich retroactively to his pay, emoluments and rank. This appeal by the City of Helena followed.

The City presents four issues for review:

(1) Whether the district court exceeded its scope of review in reversing the police commission findings on the weight of the evidence.

(2) Whether a policeman subject to charges under section 11-1806(1), R.C.M.1947, can also be suspended on the same charges under section 11-1806(10), R.C.M.1947.

(3) Whether the district court erred in concluding the police commission findings were nullified by the absence of Commissioner Pfeiffer.

(4) Whether certain evidentiary rulings of the police commission materially prejudiced Sergeant Miskovich.

The City contends the district court exceeded its scope of review of the police commission proceedings. In support of its position the City relies on the Montana Administrative Procedure Act, specifically section 82-4216(7), R.C.M.1947, which states in pertinent part:

'The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. * * *'

First, the Montana Administrative Procedure Act, Title 82, Chapter 42, is not applicable to the administrative functions of metropolitan police commissions. The full title of the Montana Administrative Procedure Act, Chapter 2, Laws of Montana 1971, Extraordinary Session, reads in pertinent part:

'An act prescribing uniform procedures for state administrative agencies * * *'. (Emphasis supplied.)

The Montana Administrative Procedure Act defines 'agency' at section 82-4202(1), R.C.M.1947, as:

'* * * any board, bureau, commission, department, authority or officer of the state government authorized by law to make rules and to determine contested cases * * *.' (Emphasis supplied.)

Though city police commissions are creations of state statute, they are obviously entities of municipal government. It is the mayor or city manager who appoints the police commissioners with the consent of the city council or commission. The city council or city commission determines the compensation of police commissioners, section 11-1804, R.C.M.1947. It is the duty of the police commission to oversee the hiring and discipline of police officers, the police officers being municipal employees, sections 11-1805, 11-1806, R.C.M.1947. See State of Montana v. District Court, Mont. 550 P.2d 382, 33 St.Rep. 464. Since the metropolitan police commission is not a state administrative agency as defined in the Montana Administrative Procedure Act, the act is not applicable to the question of the scope of district court review of police commission findings.

The controlling statute is the Metropolitan Police Law, Title 11, Chapter 18. Section 11-1806(7), R.C.M.1947, states:

'When a charge against a member of the police force is found proven by the board, and is not vetoed by the mayor, the mayor must make an order enforcing the decision of the board, or if modified by the mayor, then such decision as modified, and such decision or order shall be subject to review by the district court of the proper county on all questions of fact and all questions of law.' (Emphasis supplied.)

This Court in disposition of a previous application by the City of Helena for a writ of supervisory control directed to the district court (City of Helena v. District Court, 166 Mont. 74, 530 P.2d 464, 32 St.Rep. 52, 54), interpreted district court review of police commission findings in this manner:

'* * * However, to review the law is to ascertain whether the rulings thereon were correct; to review the facts is to determine whether the evidence supports the police commission findings. This would be similar to the review of law and facts as in an equity case. See section 93-216, R.C.M.1947.'

It has long been held by this Court that review of facts in an equity case is based on the substantial evidence test. White v. Nollmeyer, 151 Mont. 387, 443 P.2d 873; Bender v. Bender, 144 Mont. 470, 397 P.2d 957; Kyser v. Hiebert, 142 Mont. 466, 385 P.2d 90. Thus the district court's power to make its own determination as to the weight of the evidence resulting from the police commission hearings is analogous to this Court's power to do the same in equity cases. Here, the district court determined there was not substantial evidence to warrant the police commission findings.

Upon review of the transcript of the police commission hearing, we agree with the district court's determination as to the weight of the evidence bearing in mind the two basic principles espoused by this Court in State ex rel. Wentworth v. Baker, 101 Mont. 226, 53 P.2d 440. In that case, the city council and mayor suspended a policeman. After issuing a writ of certiorari and holding a hearing, the district court set aside the suspension and ordered the policeman reinstated. In reviewing the district court's action, this Court first said the district court judgment is presumed to be correct and therefore the burden is on the...