Rudnick v. City of Jamestown

Decision Date29 November 1990
Docket NumberNo. 900027,900027
Citation463 N.W.2d 632
PartiesGerald RUDNICK, Plaintiff, Appellant and Cross-Appellee, v. CITY OF JAMESTOWN and the Jamestown Police Department, Defendants, Appellees and Cross-Appellants. Civ.
CourtNorth Dakota Supreme Court

Robert W. Martin (argued) and James A. Wright (argued), of Weiss, Wright, Paulson & Merrick, Jamestown, for plaintiff, appellant, and cross-appellee.

Joseph F. Larson II (argued), Asst. City Atty., Jamestown, for defendants, appellees, and cross-appellants.

ERICKSTAD, Chief Justice.

Gerald Rudnick appeals from an amended judgment denying his request to enjoin the defendants, the City of Jamestown and the Jamestown Police Department, from demoting him from sergeant to corporal. The defendants cross-appeal from the court's determination that it had jurisdiction over Rudnick's independent action to challenge the constitutionality of the demotion procedure. We affirm.

Rudnick has been continuously employed by the Jamestown Police Department since 1966, and he held the rank of sergeant from 1973 until he was demoted to corporal in the proceedings that precipitated this action. On March 30, 1987, Officer Kevin Gebhardt submitted a report to the Chief of Police, Thomas Jensen, alleging that, on February 28, 1987, Rudnick left his post as shift commander for about one hour to move snow for his snow-removal business and that Rudnick's conduct constituted neglect of duty in violation of Section 3.11 of the Jamestown Police Department's Rules on Conduct and Performance. 1 On March 31, 1987, Rudnick was notified of the allegations by his supervisor, Lieutenant Lanny Bell.

Chief Jensen appointed Detective Ardel Wolff to investigate the allegations. After conducting an investigation, Wolff filed a written report stating "that Sgt. Rudnick did flagrantly neglect his duty when he abandoned his assigned duties as a police officer to operate his snow removal equipment, which is a business that should be conducted only on his own time." Wolff recommended that the incident be placed on the agenda of the Discipline Review Board for the Jamestown Police Department.

Rudnick received a copy of Wolff's report and filed a written response with Chief Jensen:

"When Lt. Bell informed me of the complaint issued March 30, 1987 of an incident occurring February 28, 1987, I told him it was true that I had taken a portable radio and left in my personal vehicle for approximately 30-45 minutes. I also stated to him that it would never happen again. I also stated that I still had 4 holiday hours coming and I would just forfeit those hours for the time that I used. I also said that I could always say 'I was on my lunch break.' I was always in uniform and never lost radio contact with the communication center. In the past, other officers have used their lunch break for varying reasons, such as leaving work a half hour to an hour early, or for other personal business. I had no idea as shift commander I had to first okay my actions with a patrolman. Who is a patrolman to question a supervisor?"

Ed Steckler, the Assistant Chief of Police and chairman of the Discipline Review Board for the Jamestown Police Department, notified Rudnick that the Board would conduct a hearing on June 17, 1987, to consider the allegations of misconduct against Rudnick. The Board consisted of Steckler, Lt. Gary Peterson, Lt. Lanny Bell, Sgt. Leonard Palmer, and Officer David Carpenter. Rudnick appeared at the hearing before the Discipline Review Board and explained his conduct:

"Asst. Chief: The first one we can skip, let's go over to neglect of duty, you state in there that you have 4 holiday hours.

"Sgt. Rudnick: That's the four unofficial holiday hours.

"Asst. Chief: The only thing is that has to be approved before it can be taken.

"Sgt. Rudnick: Not if you are the shift commander.

"Off. Carpenter: There is some discrepancy as to whether you were in uniform or not.

"Sgt. Rudnick: Full uniform, except for jacket and I had my uniform jacket beside me in the truck.

"Lt. Bell: Did you move snow any other place?

"Sgt. Rudnick: Only sidewalks that I had to have done before I got off work and we were short all that time so I could not get off in any way, shape or form.

"Asst. Chief: How long were you there?

"Sgt. Rudnick: About 45 minutes.

"Asst. Chief: Have you done this before?

"Sgt. Rudnick: Never.

"Lt. Bell: Did you try to get someone else to help you?

"Sgt. Rudnick: No.

"Lt. Peterson: What do you mean you didn't have to OK it with a patrolman before you took off?

"Sgt. Rudnick: I felt I did not have to ask him. The only excuse I have is that over the years other people have done the same things, either left early or come late.

"Asst. Chief: You were saving those four hours to use at your convenience?

"Sgt. Rudnick: More or less."

The Board found that the allegations against Rudnick had been established and recommended that he be demoted from sergeant to corporal with a corresponding pay reduction. By letter dated June 25, 1987, Rudnick was notified that Chief Jensen and Mayor James Lusk concurred in the Board's findings and recommendation; that the demotion was effective July 1, 1987; and that he could appeal to the Jamestown Civil Service Commission within five days.

Rudnick appealed to the Civil Service Commission and a hearing was held on July 22, 1987, before the Commission's duly-appointed members, Keith Prentice, William Guthmiller, and Ken Wick. Rudnick and his attorney were present at the hearing. The Commission found that Rudnick had violated Section 3.11 by leaving his post to perform snow removal operations for his personal business and confirmed Rudnick's demotion from sergeant to corporal, effective July 1, 1987. 2

Rudnick then commenced this independent action in district court, alleging that the defendants violated his due process rights, the Police Department's Policy and Procedure Manual, and the Police Department's Rules on Conduct and Performance. Rudnick sought to permanently enjoin the defendants from demoting him from sergeant to corporal and from filling his position as sergeant. The defendants answered, contending that the district court lacked jurisdiction to hear the action and that a writ of mandamus should have been sought because no appeal from the decision of the Civil Service Commission was authorized by law. The defendants also contended that Rudnick was not deprived of a property or liberty interest and therefore was not entitled to due process or, alternatively, that he received due process.

The district court concluded that it had jurisdiction to resolve the alleged violations of Rudnick's due process rights. The court concluded that its scope of judicial review was the same as any civil trial because courts are the final interpreters of the constitution. Finally, the court determined that the procedures before the Discipline Review Board and the Civil Service Commission did not deny Rudnick due process.

In their cross-appeal, the defendants contend that the district court did not have jurisdiction to entertain Rudnick's independent action. The defendants characterize this action as an attempted appeal and argue that there is no statutory authority for an appeal to the district court from a decision of the Civil Service Commission. They assert that Rudnick's remedy was to seek a writ of mandamus under ch. 32-34, N.D.C.C.

Rudnick responds that this action was not an appeal but was an independent action and was within the original jurisdiction of the district court under Article VI, Sec. 8, N.D. Const. He asserts that the district court correctly determined that it had jurisdiction to determine the alleged violations of his due process rights.

Jurisdiction is the power of a court to hear and determine a cause of action. Zent v. Zent, 281 N.W.2d 41 (N.D.1979). The constitution is the ultimate source of the judicial power of courts. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106 (1948). Art VI, Sec. 8, N.D. Const., gives a district court two distinct classes of jurisdiction: (1) original jurisdiction of all causes, except as otherwise provided by law, and (2) appellate jurisdiction as may be provided by law or by rule of the supreme court. 3 See Bryan v. Miller, 73 N.D. 487, 16 N.W.2d 275 (1944). Section 27-05-06, N.D.C.C., 4 also defines a district court's jurisdiction.

Initially, we disagree with the defendants' characterization of this action as an appeal. Appellate jurisdiction is the power of a superior court to review and revise a decision that has been rendered by an inferior court or tribunal. Bryan v. Miller, supra. A district court does not have appellate jurisdiction unless authorized by statute. Investment Rarities, Inc. v. Bottineau County Water Resource District, 396 N.W.2d 746 (N.D.1986). In Investment Rarities, supra, we affirmed a district court's dismissal of an attempted appeal from a decision by the North Dakota State Engineer because there was no statutory authorization for that appeal.

Pursuant to Section 40-44-01, N.D.C.C., 5 the Jamestown City Council enacted Jamestown City Ordinance ch. 11, which adopts a Civil Service System for employees of the City of Jamestown and creates a Civil Service Commission. As a full-time employee of the police department, Rudnick was a classified employee under the Jamestown Civil Service System. Section 40-44-08, N.D.C.C.; 6 Section 11-3, Jamestown City Ordinance. 7 However, ch. 40-44, N.D.C.C., does not include statutory authorization for an appeal from a decision of a municipal Civil Service Commission and the parties have not called our attention to any other statutory provision authorizing an appeal. Compare Domek v. North Dakota State Personnel Board, 430 N.W.2d 339 (N.D.1988); Choukalos v. North Dakota State Personnel Board, 429 N.W.2d 441 (N.D.1988). Rudnick's action therefore is not an appeal.

The constitutional grant of original jurisdiction to the district court creates a court of general...

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