State ex rel. Smits v. City of De Pere

• Citation: 104 Wis.2d 26,310 N.W.2d 607
• Decision Date: 06 October 1981
• Docket Number: No. 80-414,80-414
• Parties: STATE ex rel. Thomas SMITS, Plaintiff-Appellant-Petitioner, v. CITY OF DE PERE, Board of Police and Fire Commissioners, Defendant-Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 607

310 N.W.2d 607

104 Wis.2d 26

STATE ex rel. Thomas SMITS, Plaintiff-Appellant-Petitioner, v. CITY OF DE PERE, Board of Police and Fire Commissioners,

Defendant-Respondent.

No. 80-414.

Supreme Court of Wisconsin.

Argued Sept. 9, 1981.

Decided Oct. 6, 1981.

Ken Bowman, De Pere, for petitioner-appellant-petitioner.

Richard J. Dietz, City Atty., De Pere, for defendant-respondent.

CALLOW, Justice.

This is a review of a decision of the court of appeals, 99 Wis.2d 807, 301 N.W.2d 462, affirming a judgment of the circuit court for Brown county, Robert J. Parins, Judge, which dismissed petitioner's writ of certiorari.

This dispute arises from the following facts. In December of 1977, the chief of police for the city of De Pere filed nine charges of misconduct with the Board of Police and Fire Commissioners against petitioner, Thomas Smits, a former city of De Pere police officer. Seven of the charges were sustained and Smits' employment was terminated.

Smits appealed the board's decision to the circuit court for Brown county pursuant to sec. 62.13(5)(i), Stats. That court determined that four of the charges were not substantiated by the evidence, reversed the board's order of termination, and on December 29, 1978, remanded the remaining three charges ¹ to the board for reevaluation of the sanction.

On April 2, 1979, after a delay of more than three months, the board conducted further proceedings on the remaining three charges and on April 24, 1979, reaffirmed its decision to discharge Officer Smits. Smits again appealed this decision, and the circuit court reversed on the ground that the sanction (termination of employment) was too severe. ² In his decision of June 25, 1979, Judge Parins issued the following guideline to the board:

"The court is satisfied however that it should supply some guideline to the Board in an effort to finally conclude these proceedings. With that thought in mind, the court suggests to the Board that the appropriate exercise of discretion, under all of the circumstances reflected in the record made in 1978 and 1979, would dictate suspension without pay not to exceed one year. (Emphasis added.)

In addition to reversing the board's second order of termination, Judge Parins remanded the following to the board for further proceedings:

"1. Reinstatement of Mr. Smits forthwith with pay (to be calculated according to State ex rel. Schilling & Klingler v. Baird, 65 Wis.2d 394, 222 N.W.2d 666 (1974); State ex rel. Klingler & Schilling v. Baird, 56 Wis.2d 460, 202 N.W.2d 31 (1972)) as though he had been in continuous service.

"2. Re-evaluation of its order as to impose a sanction appropriate to the findings made by the Board and approved by the court."

On the same day that Judge Parins entered his order of reversal, the board issued an amended order "retroactively" suspending Smits without pay for a period of fifty-two (52) work weeks, which is the equivalent of fifteen (15) months and twelve (12) days. The board's amended order, however, allowed Smits to return to work on July 27, 1979.

Smits did not appeal this order, but he did appear before the board during its regular meetings in October and November, requesting reconsideration of the board's amended order. On November 5, 1979, the board denied Smits' request for reconsideration. Smits then instituted the present certiorari proceedings in the circuit court for Brown county, seeking reversal of the board's amended order on the grounds that it was contrary to the circuit court's final order, contrary to sec. 62.13(5)(i), Stats., and that it resulted from the board's exceeding its jurisdiction or applying an incorrect theory of law.

Judge Parins dismissed the writ of certiorari, holding that the board had acted within its authority. The court of appeals affirmed, holding that the retroactive suspension without pay was legitimate and not contrary to sec. 62.13(5)(i), Stats. Although we agree with the court of appeals that such a retroactive suspension was permissible, we reverse and remand on the issue of the proper sanction in this case.

We perceive the pivotal issue in this case as follows: Did the Board of Police and Fire Commissioners act within its jurisdiction and apply a correct theory of law in retroactively suspending the petitioner Smits for fifty-two (52) work weeks? We believe not.

At the outset we observe that this matter is properly before the court on the common law writ of certiorari. Sec. 62.13(5)(i), Stats., provides that on appeal, "(t)he question to be determined by the court shall be: Upon the evidence was the order of the board reasonable?" Nevertheless, where no specific legislative provision exists, the writ of certiorari procedure provides for judicial review of a board's actions. State ex rel. Kaczkowski v. Fire & Police Commission, 33 Wis.2d 488, 148 N.W.2d 44, 149 N.W.2d 547 (1967); State ex rel. Wasilewski v. Board of School Directors, 14 Wis.2d 243, 111 N.W.2d 198 (1961); State ex rel. Heffernan v. Board, 247 Wis. 77, 18 N.W.2d 461 (1945); Petition of Heffernan, 244 Wis. 104, 11 N.W.2d 680 (1943). We have, however, 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 nonjudicial 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." Kaczkowski, supra, 33 Wis.2d at 500, 148 N.W.2d 44.

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. Coleman v. Percy, 96 Wis.2d 578, 292 N.W.2d 615 (1980); State ex rel. Harris v. Annuity & Pension Board, 87 Wis.2d 646, 275 N.W.2d 668 (1979); State ex rel. Ball v. McPhee, 6 Wis.2d 190, 199, 94 N.W.2d 711 (1959). Because sec. 62.13 (5) (i) provides for review based on the issue of reasonableness, the potential for overlap narrows our scope of review even further. Kaczkowski, supra, 33 Wis.2d at 501, 148 N.W.2d 44. " 'Whether the board kept within its jurisdiction' " and " 'whether it proceeded on correct theory of the law' " are not necessarily encompassed in sec. 62.13(5)(i), and, therefore, the legislature did not provide for judicial review for these two elements. Thus we appropriately confine our review in this case to questions of excess of jurisdiction and incorrect theory of law. Kaczkowski, supra at 501-02, 148 N.W.2d 44.

This case presents a matter of first impression with respect to the application of the provisions for disciplining police officers and fire fighters pursuant to sec. 62.13(5) Stats. ³ The specific question regarding retroactivity of a suspension order after a discharge order has been reversed is a unique one before this court, and it calls upon us to interpret certain statutory provisions.

We note that sec. 62.13(5)(a), Stats., provides for two types of suspensions: one as a penalty and one "pending the disposition of charges." Only the former is allowed to be without pay since sec. 62.13(5)(h) mandates that "(n)o person shall be deprived of compensation while suspended pending disposition of charges." Id. The chief may order a penalty suspension, but if it is challenged, charges must be filed. Sec. 62.13(5)(c). Once he requests a hearing, the suspended subordinate would, then, have to receive compensation, pending the disposition of those charges.

The issue then, as addressed by the parties, is as follows: When are the charges disposed of, and hence when can a subordinate, under charges, be ordered suspended without compensation?

We would conclude that the language of the statute and the progression of its subsections indicates that the charges are disposed of when the board makes its findings. Sec. 62.13(5)(h), Stats., providing that a suspended subordinate must receive pay pending disposition of charges, is the last subsection following board procedure. It immediately precedes sub. (i), the judicial review provision which is limited to the review of the reasonableness of the penalty assessed. Subsection (i) also includes a provision for reinstatement and back pay, indicating that the subordinate has been penalized by the time his case is reviewed by the court. The conclusion we reach is as follows: Once the board makes its findings, the charges are disposed of, and the subordinate may be suspended as a penalty without pay. Sec. 62.13(5)(i) provides that the reasonableness of the board's assessed penalty may be judicially reviewed. We note that in sub. (i) the legislature has provided for acceleration of the court proceedings: thus, a subordinate who has been unreasonably penalized may, upon application to the court, have that penalty quickly reviewed.

Petitioner next argues that because sec. 62.13(5)(i), Stats., provides that, upon reversal of the board's order, the subordinate "shall be forthwith reinstated and entitled to his pay as though in continuous service," the board cannot turn around and retroactively suspend him without pay. Petitioner claims that, because the legislature has mandated reinstatement with back pay, any new sanction imposed by the board must be prospective only from the date of the new order.

The board responds that it was within the power of the trial court to remand the disciplinary proceedings to the board (as it did in the final order dated July 18, 1979) so that the board could then properly amend its order to reflect an appropriate penalty. Thus, where the court found that Smits should not be terminated, nothing prevented the board from reevaluating the penalty and imposing a suspension which reached back to the time after the initial hearings were held and findings were...