State ex rel. Cortez v. Board of Fire and Police Com'rs of City of Milwaukee, 225
| Decision Date | 01 December 1970 |
| Docket Number | No. 225,225 |
| Citation | 181 N.W.2d 378,49 Wis.2d 130 |
| Parties | STATE ex rel. Roger M. CORTEZ, Appellant, v. BOARD OF FIRE & POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Respondent. |
| Court | Wisconsin Supreme Court |
Prohibition to compel respondent Board of Fire and Police Commissioners of the city of Milwaukee (hereinafter 'the board') to desist and refrain from any further proceedings on the complaitn filed against the petitioner Roger M. Cortez (hereinafter 'the appellant').
On June 25, 1968, the Common Council of the city of Milwaukee enacted Charter Ordinance No. 341. This enactment became sec. 29.27 of the city charter and will hereinafter be referred to as the ordinance. The pertinent section of that ordinance provides as follows:
(Emphasis supplied.)
Prior to the enactment of this ordinance a citizen of Milwaukee could not file a charge with the board against a police officer unless the citizen was a 'reputable freeholder.' Sec. 29.18, Milwaukee City Charter, Annotated, 1934.
On March 10, 1969, pursuant to the ordinance, one Avelardo Valdez filed a complaint with the board against Milwaukee patrolman Roger M. Cortez. The complaint contained inter alia the following charges:
'CHARGES
'I, Mr. Avelardo Valdez, being a resident and legally qualified voter in the City of Milwaukee, hereby charge that:
The complaint goes on to detail the circumstances surrounding the allegations, but they need not be reproduced here since the merits of the complaint are not an issue on this appeal.
On December 3, 1969, the board caused the appellant to be served with a notice of investigation and a copy of the complaint. Thereafter the appellant was informed that the board had found sufficient cause for a trial, and the appellant was ordered to stand trial before the board on February 23, 1970.
Appellant, through his attorney, made a special appearance before the board challenging the board's jurisdiction to hear the matter. This challenge was denied, and a new date for trial was set.
The appellant then applied to the circuit court for a writ of prohibition, or, in the alternative, an injunction restraining the board from proceeding with this matter. On May 28, 1970, Honorable MAX RASKIN denied the request for an order prohibiting the board from proceeding further and holding instead that the board did have jurisdiction to hear the matter in question. It is from this denial that appellant appeals.
Gerald P. Boyle, Milwaukee, for appellant.
John J. Fleming, City Atty., Thomas E. Hayes and Rudolph T. Randa, Asst. City Attys., Milwaukee, for respondent.
James A. Walrath, Milwaukee, for amicus curiae Avelardo Valdez and Wis. Civil Liberties Union.
The following issues are presented on this appeal:
(1) Is the ordinance a valid exercise of the legislative power of the Milwaukee Common Council, pursuant to sec. 62.03(2), Stats.; (2) Is the ordinance valid because of the home-rule power, pursuant to art. XI, sec. 3, of the Wisconsin Constitution and sec. 66.01, Stats., as read in conjunction with sec. 62.11(5), Stats.; and
(3) Is there anything in Rule 13(12) of the Rules and Regulations of the board which might preclude the appellant from receiving a fair trial?
Interpretation of Sec. 62.03(2), Stats.
Ch. 62 of the Wisconsin statutes sets forth a comprehensive series of regulations which govern the operations of municipal governments in Wisconsin. The provisions of the chapter are automatically applicable to cities of the second, third and fourth classes, but not applicable to cities of the first class (i.e., cities with population in excess of 150,000 residents).
In this case the pertinent portion of ch. 62 is found in sec. 62.13(5), Stats., which deals with suspension and removal procedures for employees of fire and police departments.
'(f) Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.
'(g) Further rules for the administration of this subsection may be made by the board.' (Emphasis supplied.)
When this statute was first enacted, it did not apply to Milwaukee because Milwaukee was a city of the first class and the same were excepted from mandatory compliance with the provisions of ch. 62. Consequently, prior to the enactment of the ordinance by which Milwaukee adopted sec. 62.13(5)(b), Stats., the filing of complaints with the board in Milwaukee was governed by sec. 24.18, Milwaukee City Charter, Annotated, 1934. This older ordinance provided that a citizen could not file a complaint unless he was a 'reputable freeholder.'
Thus, in cities of the second, third and fourth classes in Wisconsin, a citizen could file a complaint if he was an 'elector,' but a resident in the city of Milwaukee could not file a complaint unless he was a 'reputable freeholder.'
Milwaukee sought to correct this rather obvious denial of equal protection by adopting sec. 62.13(5)(b), Stats. Cities of the first class are entitled to adopt those portions of ch. 62 which they deem desirable by virtue of sec. 62.03, Stats., which provides that:
'(2) Any such city may adopt by ordinance the provisions of chapter 62 of the statutes or any section or sections thereof, which when so adopted shall apply to such city.' (Emphasis supplied.)
Appellant's contention is that Charter Ordinance No. 341, by which Milwaukee adopted sec. 62,13(5)(b), Stats., does not comply with sec. 62.03(2), Stats., because sec. 62.03(2) refers to 'section' or 'section,' and that what Milwaukee did was to adopt less than a 'section.' That is, if the council had adopted all of sec. 62.13, Stats., there would be no dispute. But since the council adopted only subsec. (5)(b) of sec. 62.13, Stats., it did not comply with the requirement of sec. 62.03(2) (section or sections).
The trial court found the appellant's argument overly technical, and we think properly so. As pointed out by the trial court, the word 'section' is nowhere defined in the statutes and the interpretation sought by appellant would frustrate the legislative intent of sec. 62.03(2), Stats., which was to allow Milwaukee to adopt whatever portion of ch. 62 it deemed advisable.
Sec. 62.04, Stats., entitled 'Intent and Construction,' expresses the purpose and intent of the legislature in enacting secs. 62.01 through 62.26, Stats. Sec. 62.04 provides, in part:
'* * * For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that sections 62.01 to 62.26, inclusive, shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof.' (Emphasis supplied.)
In view of this admonition to construe sec. 62.03(2), Stats., liberally 'in favor of the rights * * * of cities,' it seems very dubious that the legislature in using the word 'section' was consciously contemplating the fine gradations between sections, subsections and paragraphs.
Moreover, the proposition that the words 'section' or 'sections' should not be technically...
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