State ex rel. Czapiewski v. Milwaukee City Service Commission

• Decision Date: 02 May 1972
• Docket Number: No. 71,71
• Citation: State ex rel. Czapiewski v. Milwaukee City Service Commission, 196 N.W.2d 742, 54 Wis.2d 535 (Wis. 1972)
• Parties: STATE ex rel. Arthur G. CZAPIEWSKI, Respondent, v. MILWAUKEE CITY SERVICE COMMISSION, Appellant.
• Court: Wisconsin Supreme Court

Page 742

196 N.W.2d 742

54 Wis.2d 535

STATE ex rel. Arthur G. CZAPIEWSKI, Respondent, v. MILWAUKEE CITY SERVICE COMMISSION, Appellant.

No. 71.

Supreme Court of Wisconsin.

May 2, 1972.

Milwaukee City Service Commission appeals from an order denying its motion to quash the petition of the respondent Arthur G. Czapiewski for a writ of certiorari. The commission claims the petition is barred by laches; the trial court found otherwise.

John J. Fleming, City Atty., Peter M. Stupar, Asst. City Atty., Milwaukee, for appellant.

Goldberg, Previant & Uelmen, Milwaukee, for respondent.

HALLOWS, Chief Justice.

The petition alleges that on June 5, 1970, Czapiewski was discharged from his job as 'Maintenance Technical II' in the department of city development of the city of Milwaukee. On June 19, 1970, the commission after an appeal hearing, sustained the charges on the ground Czapiewski violated Section 5 of Rule XIII ¹ of the commission's rules and regulations relating to physical defect, incompetency and inefficiency. On June 23, 1970, Czapiewski was informed by letter that the commission sustained the charges but set aside the discharge and placed him on suspension until be obtained a medical clearance. ² The petition also alleges the action of the commission in discharging Czapiewski was error and in excess of its jurisdiction, depriving Czapiewski of due process of law. It is further claimed the decision was not supported by any reasonable view of the evidence since no competent medical evidence was introduced to establish his physical incapacity to perform his job and the discharge was arbitrary, oppressive, unreasonable, and contrary to law. Lastly, the petition alleged Czapiewski was not guilty of laches.

It is to be noted the petition alleges Czapiewski was discharged and made no reference to the fact the commission suspended Czapiewski. We think there is a difference between a discharge and a suspension although both can be final for appeal purposes. The petition was filed, a writ issued on February 11, 1971, and a return ordered; but before the return was made, the city moved to quash the writ on the ground Czapiewski was guilty of laches because he had not sought the writ to review the action of June 19, 1970, until February 11, 1971, which was more than six months after the order of suspension had been made.

In Firemen's Annuity and Benefit Fund v. Krueger (1964), 24 Wis.2d 200, 128 N.W.2d 670, we reasoned that certainty required a definite rule of six months when no statutory time was prescribed within which a petition for a writ of certiorari could be made to review a final order of an agency and stated, p. 206, 128 N.W.2d p. 673, 'Henceforth, where such certiorari proceedings are permitted, they must be commenced within six months.' In State ex rel. Casper v. Board of Trustees (1966), 30 Wis.2d 170, 140 N.W.2d 301, we reviewed the doctrine of laches in its relation to the timeliness of a writ of certiorari for the purpose of statutory review and said the six months' rule by analogy to the time for appeals was akin to the holding of courts of equity that the period of a statute of limitation was to be considered in applying the doctrine of laches to an equitable right 'without inquiring into any change of circumstances.' We think the six months' rule fashioned for statutory certiorari is applicable to a petition for the common-law writ of certiorari which is involved here and is consistent with the settled proposition that one seeking a common-law writ of certiorari may lose his right to such review if he is guilty of laches. State ex rel. Damerow v. Behrens (1960), 11 Wis.2d 426, 105 N.W.2d 866; State ex rel. Hippler v. Baraboo (1970), 47 Wis.2d 603, 178 N.W.2d 1; Consolidated Apparel Co. v. Common Council (1961), 14 Wis.2d 31, 109 N.W.2d 486.

But it is argued the determination of June 19, 1970, was not a final order and therefore the time did not commence to run. Certiorari, of course, lies only to review a final determination. State ex rel. McKenzie v. Brown (1921), 174 Wis. 498, 182 N.W. 602; State ex rel. Meissner v. O'Brien (1932), 208 Wis. 502, 243 N.W. 314; State ex rel. St. Mary's Hospital v. Industrial Comm. (1947), 250 Wis. 516, 27 N.W.2d 478. In determining whether a party is guilty of laches or is within the prescribed time limit, the time may be calculated only from the point his right to relief accrues. McDonald v. McDonald (1972), 53 Wis.2d 371, 192 N.W.2d 903; 27 Am.Jur.2d, Equity, p. 701, sec. 162. The trial court in denying the motion to quash based its determination on the proposition that the letter of June 23, 1970, did not represent a final order of the commission. We disagree.

The action suspending Czapiewski, whether considered to be June 19th or the 23rd, was final although the suspension might have been terminated by a condition ...