State ex rel. Hennekens v. City of River Falls Police and Fire Com'n

Decision Date24 June 1985
Docket NumberNo. 83-1894,83-1894
Citation369 N.W.2d 670,124 Wis.2d 413
PartiesSTATE ex rel. David HENNEKENS, Petitioner-Appellant-Petitioner, v. CITY OF RIVER FALLS POLICE AND FIRE COMMISSION, Respondent-Cross-Petitioner. *
CourtWisconsin Supreme Court

Randall Schneider, Milwaukee, argued, for petitioner-appellant-petitioner; Linda S. Vanden Heuvel and Vanden Heuvel Law Offices, Milwaukee, on brief.

Stuart J. Krueger, River Falls, argued, for respondent-cross-petitioner; Bye, Krueger & Goff, S.C., River Falls, on brief.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals which affirmed in part and reversed in part a judgment of the Pierce county circuit court, Judge William E. McEwen, and remanded the matter to the circuit court. We affirm the court of appeals in part, reverse in part, and remand the cause to the circuit court.

On May 20, 1982, the chief of police suspended David Hennekens for thirty days without pay from his position as a police officer for the city of River Falls. The suspension resulted from alleged violation of three of the River Falls Police Department rules. 1 Hennekens requested a hearing on his suspension before the River Falls Police and Fire Commission (Commission). On June 14, 1982, amended charges were filed against Hennekens by the Chief of Police. The amended charges alleged that Hennekens had committed five violations of police department rules. 2

The first charge stated that Hennekens had left his assigned post of duty without authorization and had entered a meeting of the police and fire commission, carrying a recording device which was not for departmental use. The second and third charges stated that Hennekens had failed to conform to work standards established for his position in that he had failed to identify unlocked doors on his foot patrol beat. 3 The fourth charge alleged that Hennekens had continuous associations with a person he knew or should have known was under criminal investigation and/or who had a reputation in the community or police department for present involvement in felonious or criminal behavior. The fifth charge alleged that Hennekens had divulged information to persons not connected with the police department.

On July 13, 1982, a hearing on the charges was held before the River Falls Police and Fire Commission. The first charge, which alleged that Hennekens had left his post of duty without authorization, was not sustained. The Commission did sustain the other four charges and ordered that Hennekens be removed from the department.

Hennekens filed an appeal in Pierce county circuit court from the Commission's decision pursuant to sec. 62.13(5)(i), Stats. The sole issue to be determined by the circuit court on the appeal was: Upon the evidence was the order of the Commission reasonable? The circuit court found the Commission's order to be reasonable.

On January 13, 1983, Hennekens brought a writ of certiorari before the Pierce county circuit court an order quashing the writ of certiorari was filed on March 29, 1983. On August 17, 1983, the court issued its findings of fact, conclusions of law, and judgment in the matter. The court found that the Commission had acted within its jurisdiction and according to law; that its action was not arbitrary, oppressive, or unreasonable; and that there was evidence which, if the Commission believed it, would support the Commission's order.

Hennekens appealed the circuit court's decision quashing the writ of certiorari to the court of appeals. The court of appeals found that the Commission had failed to act in accordance with due process guarantees as to the fifth charge, which dealt with divulging information, in that the charge failed to give Hennekens adequate notice of his alleged violation. The court of appeals, therefore, reversed the circuit court's judgment as it pertained to the fifth charge and affirmed the circuit court as to the second, third, and fourth charges. The court of appeals noted it could not assume that a finding on charges two, three, and four alone would have resulted in Hennekens' dismissal. Thus, it remanded the matter to the circuit court with directions to remand it to the Commission for a redetermination of the penalty.

Hennekens petitioned this court for review of that portion of the court of appeals' decision which upheld the three charges against him. The Commission filed a cross-petition seeking review of that portion of the court of appeals' decision which held that the fifth charge did not comport with due process guarantees. We granted both the petition and the cross-petition.

We note at the outset that this matter is properly before this court on the common law writ of certiorari. We have, in previous cases, stressed the limited nature of the writ.

"Where the legislature provides for a final and conclusive judicial review of the action of a board, commission or other non-judicial body, the courts have jurisdiction to review by certiorari only those strictly legal questions which were not or could not have been raised by way of the judicial review proceeding provided by the legislature." State ex rel. Kaczkowski v. Fire & Police Comm., 33 Wis.2d 488, 500, 148 N.W.2d 44, 149 N.W.2d 547 (1967).

The general scope of review pursuant to the writ of certiorari is limited to whether a board: (1) acted within its jurisdiction; (2) proceeded on a correct theory of law; (3) was arbitrary, oppressive, or unreasonable; or (4) might have reasonably made the order or finding that it made based on the evidence. State ex rel. Smits v. City of De Pere, 104 Wis.2d 26, 31, 310 N.W.2d 607 (1981). Because sec. 62.13(5)(i), Stats., provides for review based on the issue of whether the board acted reasonably, our scope of review is narrowed, and the issues presented in this action are whether the Commission kept within its jurisdiction and whether it proceeded on a correct theory of the law. 104 Wis.2d at 32, 310 N.W.2d 607.

Hennekens first argues that he was denied due process because several of the rules which he was charged with violating are unconstitutionally vague and overbroad. The specific rules which he challenges as vague are as follows:

"1.02. Unbecoming Conduct. Officers shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an officer shall include that which brings the Department into disrepute or reflects discredit upon the officer as a member of the Department, or that which impairs the operation or efficiency of the Department or officer.

"1.11. Unsatisfactory Performance. Officers shall maintain sufficient competency to properly perform their duties and assume the responsibilities of their positions. Officers shall perform their duties in a manner which will maintain the highest standards of efficiency in carrying out the functions and objectives of the Department. Unsatisfactory performance may be demonstrated by a lack of knowledge of the applications of laws required to be inforced [sic]; an unwillingness or inability to perform assigned tasks; the failure to conform to work standards established for the officer's rank, grade, or position; the failure to take appropriate action on the occasion of a crime, disorder, or other condition deserving police attention; or absence without leave. In addition to other indicia of unsatisfactory performance: repeated poor evaluations or a written record of repeated infractions of rules, regulations, directives or orders of the Department.

"1.27. Associations. Officers shall avoid regular or continuous associations or dealings with persons whom they know, or should know, are persons under criminal investigation or indictment, or who have a reputation in the community or the Department for present involvement in felonious or criminal behavior, except as necessary to the performance of official duties, or where unavoidable because of other personal relationships of the officers."

The concept of vagueness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. State v. Courtney, 74 Wis.2d 705, 709, 247 N.W.2d 714 (1976). We have framed the inquiry as:

"... Is the statute read as a whole so indefinite and vague that an ordinary person could not be cognizant of and alerted to the type of conduct, either active or passive, that is prohibited by the statute?" State v. Woodington, 31 Wis.2d 151, 181, 142 N.W.2d 810, 143 N.W.2d 753 (1966).

A fair degree of definiteness is all that is required to uphold a statute or regulation, and a statute or regulation will not be voided merely by showing that the boundaries of the area of proscribed conduct are somewhat hazy. State v. Courtney, 74 Wis.2d at 710-11, 247 N.W.2d 714.

"... Before a ... rule may be invalidated for vagueness, there must appear some ambiguity or uncertainty in the gross outlines of the duty imposed or conduct prohibited such that one bent on obedience may not discern when the region of proscribed conduct is neared, or such that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the ... rule." Id. at 711, 247 N.W.2d 714.

We find that rules 1.02, 1.11, and 1.27 are sufficiently definite so as to survive Hennekens' vagueness challenge.

Hennekens also contends that rule 1.27 is overbroad. A rule is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate. Milwaukee v. Wilson, 96 Wis.2d 11, 19, 291 N.W.2d 452 (1980). We reject Hennekens' argument that rule 1.27 is overbroad. The rule does not contain such sweeping prohibitions against associations so as to render it unconstitutionally infirm.

Hennekens also asserts that he was denied due...

To continue reading

Request your trial
39 cases
  • Turney v. Civil Service Com'n, No. 08CA0215.
    • United States
    • Colorado Court of Appeals
    • April 16, 2009
    ...("highest standards of efficiency" included in sub-definition of "competency"); State ex rel. Hennekens v. City of River Falls Police & Fire Comm'n, 124 Wis.2d 413, 369 N.W.2d 670, 674-75 (1985) ("highest standards of efficiency" not unconstitutionally vague where it was part of department ......
  • Larson v. Burmaster, 2005AP1433.
    • United States
    • Wisconsin Court of Appeals
    • June 27, 2006
    ...that procedural due process requires fair notice and proper standards for adjudication. State ex rel. Hennekens v. River Falls Police Fire Comm'n, 124 Wis.2d 413, 420, 369 N.W.2d 670 (1985). A vagueness to a statute is subject to a two-prong test: The first prong of the vagueness test is co......
  • City of Milwaukee v. K.F., s. 87-0936
    • United States
    • Wisconsin Supreme Court
    • July 20, 1988
    ...that procedural due process requires fair notice and proper standards for adjudication." State ex rel. Hennekens v. City of River Falls Police & Fire Commission, 124 Wis.2d 413, 420, 369 N.W.2d 670, reconsideration denied 126 Wis.2d 39, 373 N.W.2d 672 (1985). The constitutional demand of pr......
  • State v. Padley
    • United States
    • Wisconsin Court of Appeals
    • May 22, 2014
    ...that procedural due process requires fair notice and proper standards for adjudication.” State ex rel. Hennekens v. City of River Falls Police & Fire Comm'n, 124 Wis.2d 413, 420, 369 N.W.2d 670 (1985). A challenge to a statute based on vagueness is subject to a two-prong test: The first pro......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT