State ex rel. Kaczkowski v. Board of Fire and Police Com'rs of City of Milwaukee

• Decision Date: 31 January 1967
• Citation: 33 Wis.2d 488,148 N.W.2d 44
• Parties: STATE ex rel. Alfred KACZKOWSKI, Appellant, v. BOARD OF FIRE & POLICE COMMRS. OF the CITY OF MILWAUKEE, Respondent. STATE ex rel. Joseph E. NIEDZIEJKO, Appellant, v. BOARD OF FIRE & POLICE COMMRS. OF the CITY OF MILWAUKEE, Respondent.
• Court: Wisconsin Supreme Court

Page 44

148 N.W.2d 44

33 Wis.2d 488

STATE ex rel. Alfred KACZKOWSKI, Appellant, v. BOARD OF FIRE & POLICE COMMRS. OF the CITY OF MILWAUKEE, Respondent.

STATE ex rel. Joseph E. NIEDZIEJKO, Appellant, v. BOARD OF FIRE & POLICE COMMRS. OF the CITY OF MILWAUKEE, Respondent.

Supreme Court of Wisconsin.

Jan. 31, 1967.

Rehearing Denied April 11, 1967. See 149 N.W.2d 547.

Louis J. Ceci, Milwaukee, for appellants.

John J. Fleming, City Atty., George A. Bowman, Jr., Asst. City Atty., Milwaukee, for respondent.

BEILFUSS, Justice.

Subsequent to filing of the notice of appeal the respondent, Board of Fire and Police Commissioners, filed a motion to dismiss these appeals upon two grounds,--(1) that the supreme court is without jurisdiction to hear the appeal, and (2) that the petition for writ of certiorari contains no issues of law to be decided. Although the motion to dismiss the appeals was denied, we deem it advisable to re-examine the question of jurisdiction.

By means of ch. 586 of the Laws of 1911 (part of ch. 29, Milwaukee City Charter), the legislature provided for the duties and powers of the Board of Fire and Police Commissioners in cities of the first class. This chapter has remained in force substantially unchanged since passage. Pertinent to these cases are sec. 1, subs. 20, 21, 22, and 23, which provide:

'20. Any officer or member of either department discharged, suspended, or reduced, may within ten days after the decision and findings hereinbefore provided for are filed with the secretary of said board, bring an action in the circuit court of the county in which said city is located to review said order; said action shall be begun by the serving of a notice on the secretary of said board making such order and the city attorney of such city, which notice may be in the following or similar form:

'* * *

'21. Upon the service of said demand the board upon whom said service was made shall within five days thereafter certify to the clerk of the circuit court of said county all charges, testimony, and everything relative to the trial and discharge, suspension, or reduction in rank of said member. Upon the filing of said return with the clerk of said court, said actions for review shall be deemed at issue and shall have precedence over any other cause of a different nature pending in said court, and said court shall be considered always open for the trial thereof, and upon the application of the discharged member or the board, the court shall fix a date for the trial thereof which shall not be later than fifteen days from and after the date of such application except upon agreement between the board and such discharged or suspended member. Such action shall be tried by the court without a jury and shall be tried upon the return made by said board. In determining the question of fact presented, the court shall be limited in the review thereof to the question: 'Under the evidence was the decision of the board reasonable?' The court shall have the right to require further and additional return to be made by the board of fire and police commissioners, and may also require such board to take further and additional testimony and make return thereof.

'22. No costs shall be allowed in said action to either party and the clerks' fees shall be paid by the city in which said department is located. If the decision of such board is reversed, the discharged or suspended member shall forthwith be reinstated in his former position in the said department and shall be entitled to his pay the same as if he had not been discharged or suspended. If the decision of the board is sustained the order of discharge, suspension, or reduction shall be final and conclusive in all cases.

'23. The chief engineer of the fire department and the chief of police of said cities, shall be the head of their respective departments and shall have power to regulate said departments and prescribe rules for the government of its members. The chief of police shall cause the public peace to be preserved and see that all laws and ordinances of the city are enforced. He shall be responsible for the efficiency and general good conduct of the department under his control. Each of said chiefs shall have the custody and control of all public property pertaining to said departments and everything connected therewith and belonging thereto. They shall have the custody and control of all books, records, machines, tools, implements, and apparatus of every kind whatsoever necessary for use in each of said departments.'

The petitioners contend that certiorari should lie to upset the action of the Board of Fire and Police Commissioners upon the following grounds:

(1) The board did not act according to law in permitting the use of testimony obtained under threat of discharge and testimony obtained during a polygraph examination.

(2) Records or testimony of a secret John Doe investigation were revealed contrary to sec. 954.025, Stats.

(3) Persons other than the district attorney in a criminal prosecution used the records and testimony taken in a secret John Doe investigation.

Even if the petitioners' three main contentions find basis in the record, there is a serious question of the jurisdiction of the courts to further review the petitioners' discharge by way of certiorari. In ch. 586, Laws of 1911, the legislature provided an expeditious method of review of discharge orders by the Milwaukee board of fire and police commissioners. Sec. 1, sub. 22 of that chapter provides for the finality of the circuit court review of a discharge order:

'* * * If the decision of the board is sustained the order of discharge, suspension, or reduction shall be final and conclusive in all cases.' (Emphasis supplied.)

In Clancy v. Board of Fire and Police Commissioners (1912), 150 Wis. 630, 138 N.W. 109, the appellants contended that they had a right to appeal from the judgment of the circuit court reviewing the board's order in a discharge case. The appellants were confronted with a motion to dismiss, and, while contesting that motion, moved this court for issuance of a writ of certiorari directed to the circuit court for the purpose of reviewing the judgment. This court dismissed the appeal and denied the motion for issuance of certiorari on the ground that the legislative intent of ch. 586 was that the proceeding should be finally closed with the decision of the circuit court. In so deciding the court held that the review procedure provided by the legislature was intended to perform the function of a writ of certiorari where the writ is directed to review the action of a tribunal of this nature. Therefore certiorari would not lie because the review procedure provided in ch. 586 is exclusive and conclusive. At page 634, 138 N.W. at page 110 the court stated:

'Subsection 22 provides that, if the decision of the board is reversed by the court, the discharged man shall be at once reinstated in his position, and entitled to his pay as if never discharged, and that, if the decision of the board be sustained, the order of discharge shall be final and conclusive in all cases.

'The purpose to absolutely terminate the proceeding with the decision of the circuit court seems here very certain.

'Doubtless the pbobable demoralizing effect on the public service of long drawn-out proceedings, during which time no permanent appointment could be made, was fully appreciated. Every clause of the law indicates the intention to make the entire proceeding as speedy as possible and yet give the accused person the right to fully make his defense, and in view of the very significant provisions of the section last cited we entertain no doubt that the statute means, and was intended to mean, that the proceeding should be finally closed by the decision of the circuit court. It follows that the appeal will be dismissed.'

The court further states, at pages 636, 637, 138 N.W. at page 111:

'In substance this appeal was intended to perform the functions of a writ of certiorari in a case where the writ is directed to a tribunal of this nature, namely, to review the evidence to ascertain only whether there was reasonable ground for the decision made. State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 61, 100 N.W. 1048. It is a method provided by statute by which the power of superintending control which is vested in the circuit courts by the constitution is to be exercised.

'The constitution (article 7, § 8) provides that the circuit courts shall have a supervisory control over all inferior courts and tribunals and shall have power 'to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments, and decrees, and give them a general control over inferior courts and jurisdictions.'

'While no formal writ issues in the present case and the proceeding is termed an appeal, it accomplishes the same result as though it had been commenced by the issuance of the ancient writ, and there can be no doubt of the legislative power to reach the desired end by procedure termed an appeal as well as by an original common-law writ. It is true that by the last clause of subsec. 21 it is provided that the court may require the board to make a further return and also 'to take further and additional testimony and make return thereof.' The appellants claim that this clause authorizes the circuit court to try and decide the case on testimony which has never been considered by the board, and thus that in such cases the court is authorized to pass de novo upon the question as to whether the accused is guilty or not.

'We do not so construe the clause in question. * * *'

The Clancy Case is cited and followed in Jendrzejewski v. Board of Fire and Police Commissioners (1950), 257 Wis. 536, 44 N.W.2d 270. In Jendrzejewski the matter did not come to the court by certiorari but by an appeal from an order of the circuit court. However, the...