Turner v. City and County of Denver

• Decision Date: 01 May 1961
• Docket Number: No. 19596,19596
• Citation: 146 Colo. 336,361 P.2d 631
• Parties: John H. TURNER and Albert L. Martinac, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, Richard Y. Batterton, Mayor of the City and County of Denver, the Department of Safety and Excise of the City and County of Denver, and John M. Schooley, Manager of Safety and Excise, Defendants in Error.
• Court: Colorado Supreme Court

Page 631

361 P.2d 631

146 Colo. 336

John H. TURNER and Albert L. Martinac, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, Richard Y. Batterton, Mayor of the City and County of Denver, the Department of Safety and Excise of the City and County of Denver, and John M. Schooley, Manager of Safety and Excise Defendants in Error.

No. 19596.

Supreme Court of Colorado, In Department.

May 1, 1961.

Rehearing Denied May 22, 1961.

Sol Cohen, Joseph E. Maker, Denver, for plaintiff in error, John H. Turner.

Julius J. Ginsberg, Denver, for plaintiff in error, Albert L. Martinac.

Donald E. Kelley, City Atty., Brian H. Goral, Asst. City Atty., Denver, for defendants in error.

Anthony F. Zarlengo, V. G. Seavy, Jr., Denver, amici curiae.

DOYLE, Justice.

Before us for review is a judgment of the district court reversing an order of the Civil Service Commission of the City and County of Denver which reinstated the plaintiffs in error to the positions of police officers which they had previously held. They had been dismissed by the Manager of Safety following a hearing before him. Plaintiffs in error were members of the Police Department in the Classified Service of the City and County of Denver. The charge which resulted in their dismissal involved alleged mistreatment by them of a prisoner entrusted to their custody.

On the day in question they were driving what is referred to as a scout car, a small panel truck used to transport prisoners. They were ordered to pick up one DeHerrera and another prisoner and did so. DeHerrera had been drinking heavily and was causing a disturbance in the back of the scout car. According to their story, they stopped the vehicle for the purpose of investigating the noise which DeHerrera was creating in the back of the truck. As one of the officers opened the double doors in the back of the truck, DeHerrera rushed at him. The officers maintain that the beating administered to DeHerrera was a necessary measure in self-defense or to prevent escape. In concluding that the charges were sustained, the Manager determined that it was wholly unnecessary to stop the vehicle since they were within a few blocks of the police building and also found that the officers had failed to disclose the true facts when the incident was investigated. The officers at first denied any knowledge of the incident and later advanced the 'investigation of noise' version which has been referred to. The Manager of Safety concluded that the evidence fully sustained the charges and ordered the dismissal. He gave a detailed analysis and findings. Thereupon the officers appealed to the Civil Service Commission, and following a hearing had before that body consisting of a review of the evidence adduced before the Manager of Safety, the Commission issued a 'Decision and Order' which contained the following:

'The Commission having carefully reviewed the record of the testimony presented at the hearings before the Manager of Safety and Excise and the Manager's findings and decisions; having studied the application for review, the reasons presented and the relief requested; and having heard argument of counsel pertaining thereto; does by unanimous vote render the following decision and order;

'The decision of the Manager of Safety and Excise is reversed and that it be ordered the petitioners John H. Turner and Albert L. Martinac be restored to their former positions in the classified service of the Denver Police Department without prejudice.'

Pursuant to Rule 106(a)(4), R.C.P.Colo., this action was commenced in the district court to review the order of the Commission by the City and County of Denver, the Mayor and Manager of Safety as plaintiffs and the officers, together with the Civil Service Commission, as defendants. However, after the Civil Service Commission had certified its record of the proceedings before it, the trial court ordered its dismissal from the case. At the same time the trial court held that the city, the Mayor and the Manager of Safety were proper parties to the action. The court reasoned that it was inconceivable that the Civil Service Commission should be a court of last resort and that its action in any particular case could not be reviewed 'by this court in the interest of the people of the city, as well as of the two policemen.'

In holding that there was sufficient evidence to justify the order of the Manager of Safety, the Judge commented:

'The Manager would be naive indeed if he could 'swallow' the story of the policemen that all they could remember about the evening of June 17, was the pick-up of a prisoner at 2056 Larimer Street. True, their denial of any mis-handling at the Police Building was correct; but the Court agrees with the Manager that they deliberately concealed the antics in the alley in the first instance and feigned surprise when their superior officers were trying to pry the whole truth from them.

'And since when, we ask the Manager, has it become routine for a patrolman to stop his scout car in a dark alley, a few blocks from the Police Station, turn out the lights and shut off the engine, to investigate a disturbance by a prisoner inside?

'As far as the general testimony is concerned, the Manager saw and heard all the witnesses in person. He observed their manner and demeanor upon the stand. The picture and impressions he there received convey far more of the real truth about the incident than any review of a transcript could accomplish.

'He is the judge of their credibility; his was the job to determine who was telling the truth. Certainly, no judge or Civil Service Commission could do as well from the cold words on a printed page; and far removed, as they are from the real unfolding of the drama.'

The inadequacy of the Commission's findings was also commented on by the trial court:

'The Commission in its decision and order states no reason therefor, makes no finding of fact, and indicates not the slightest basis for a reversal of the Manager's finding. They haven't said he was arbitrary or capricious in the matter, or that the evidence presented before him was insufficient upon which to make his finding; nor can the Court see how they could brand his action as such. He gave all parties a careful and extended hearing. He weighed the evidence, police rules, Charter provisions and the law carefully; gave long, painstaking attention to the case; and there was sufficient evidence in the record to justify his final conclusions. It seems to the Court that if anybody acted arbitrarily and capriciously in this case, it was the Civil Service Commission.'

In seeking reversal, counsel for the officers urge:

1. That the trial court erred in taking jurisdiction; that it lacked authority to review the ruling of the Manager of Safety or the Civil Service Commission.

2. That it was error to dismiss the Civil Service Commission as a party.

3. That the trial court erred in reversing the Civil Service Commission and affirming the decision of the Manager of Safety for the reason that, assuming that the trial court could conduct a review, its review was limited to a holding that the order of the Civil Service Commission was insufficient and that it should therefore have remanded the case to the Civil Service Commission for further proceedings and specific findings.

I. The question whether the order of the Civil Service Commission was reviewable

in district court under Rule 106(a)(4).

We are of the opinion that the court was correct in entertaining the complaint of the defendants in error made pursuant to Rule 106(a)(4) of the Rules of Civil Procedure.

The Civil Service Commission of the City and County of Denver is created in the Denver City Charter. The Charter does not spell out a procedure for judicial review of the orders of the Commission, but a remedy nevertheless exists through the extraordinary writs, provision for which is found in the Constitution of Colorado, Article VI, sec. 11. See County Commissioners of El Paso County v. City of Colorado Springs, 66 Colo. 111, 180 P. 301 (mandamus); Friesen v. People ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430 (quo warranto). The argument against certiorari under circumstances such as we have here is that it does not lie to review an executive or ministerial act. See Nisbet v. Frincke, 66 Colo. 1, 179 P. 867; State Civil Service Commission v. Cummings, 83 Colo. 379, 265 P. 687. In the latter case it is said that mandamus is the proper remedy. It may well be that mandamus would be proper if an effort were being made to compel the Civil Service Commission to reinstate an aggrieved employee. It would seem, however, that when the Commission is acting in a quasi judicial capacity as here, certiorari is the proper remedy for review of its decision. See State Civil Service Commission v. Colorado State Board of Health, 111 Colo. 109, 138 P.2d 934; State Civil Service Commission v. Hoag, 88 Colo. 169, 293 P. 338; Hawkins v. Hunt, 113 Colo. 468, 160 P.2d 357; Hanebuth v. Patton, 115 Colo. 166, 170 P.2d 526; State Civil Service Commission v. Hazlett, 119 Colo. 173, 201 P.2d 616. We perceive no error arising from the choice of remedy.

II. The question whether the Mayor and Manager of Safety could seek review of an order of the Civil Service Commission.

The basic purpose of civil service laws is to secure governments, local, state and national, efficient public servants. Such laws seek to promote the welfare of the individual civil servant but an overriding policy is promotion of the best interests of the public as...