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07/11/83 HAROLD A. BREIER v. MICHAEL BALEN

July 11, 1983

HAROLD A. BREIER, PLAINTIFF-RESPONDENT,
v.
MICHAEL BALEN, FRANKLYN M. GIMBEL, WILLIAM I. GORE, GILBERT JEWELL AND ARLENE KENNEDY, DEFENDANTS-APPELLANTS



Appeal from a judgment of the Circuit Court for Milwaukee County: Ted E. Wedemeyer, Jr., Judge.

Petition to Review Denied.

Voss, P.j., Decker and Moser, JJ. Moser, J. (dissenting).

The opinion of the court was delivered by: Decker

We determine that the Milwaukee Chief of Police Harold A. Breier (Chief) has standing to challenge the validity of a rule prescribed by the Milwaukee Board of Fire and Police Commission which required the Chief to relieve from duty or assign to station house duty a Milwaukee police officer, (1) directly involved in a shooting incident resulting in the death or life threatening injury of another, or (2) who uses force upon a person which results in death or "great bodily harm" to another. We also determine that the named defendants who constitute the Board of Fire and Police Commissioners (Board) exceeded its statutory authority when it prescribed a replacement rule governing a subject not addressed in the rule prescribed by the Chief. We affirm the circuit court.

In this appeal we do not deal with the wisdom or merits of the rule as adopted by the Chief or amended by the Board. The issue presented in this appeal is whether the Board had authority to amend a rule prescribed by the Chief when the subject of the Board's amendment was not addressed by the Chief's rule.

A preliminary issue is whether the Chief has standing to challenge the Board's rule.

Section 62.50(23), Stats. *fn1 specifies the duties and authority of the Chief as the head of the police department and requires that the Chief shall prescribe rules for the government of the department.

Milwaukee Police Department rule 5, sec. 11, as prescribed by the Chief, read: "A leave of absence, with pay, for one day may be granted by a commanding officer to any member of his command in case of serious illness in his immediate family or other extraordinary emergency."

The Board, purporting to exercise its authority pursuant to sec. 62.50(23), Stats., and by letters dated September 18, 1981, and September 23, 1981, "proscribed the following Rule to replace the Rule suspended:"

A police officer directly involved in a shooting incident resulting in the death or life-threatening injury of another, or a police officer who uses force upon a person, which results in death or great bodily harm to another, for the good of the service and the welfare of the officer, shall either be relieved from all police duty by the Chief of Police, no later than at the start of the next regularly scheduled duty day, or be temporarily assigned to station house police duty, with all pay and benefits continuing. "Great bodily harm" means bodily injury which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

The Chief of Police shall immediately report such relief from duty or reassignment to the Fire and Police Commission by submission of a written report to the Executive Secretary of the Fire and Police Commission, and provide a copy of such report to the Milwaukee County District Attorney. This report shall detail the identity of the officer or officers so relieved or reassigned, and identify the incident causing such relief from duty or reassignment. Any officer relieved or reassigned under this section remains a member of the department and subject to all rules and regulations.

Upon completion of a full investigation of the incident, with the resultant determination by the Chief of Police that no additional administrative investigation is required, and a further determination having been made by the Chief of Police that there has been no violation of police department rule or state law, the Chief of Police shall prepare a written report to the Executive Secretary of the Fire and Police Commission with at least three working days' notice that the Chief intends to reinstate any officer relieved or reassigned to their full police duties. Being relieved of duty, under this rule, is not disciplinary in nature, and does not intimate any impropriety of conduct by such officer.

A leave of absence, with pay, for one day may be granted by a commanding officer to any member of his command in case of serious illness in his immediate family or other extraordinary emergency.

We note that sec. 62.50(23), Stats., requires the Chief to prescribe police department rules. The same statutory subsection grants to the Board the following authority: "Any rule prescribed by a chief shall be subject to review and suspension by the board. The board may prescribe a rule to replace any rule the board suspends. A chief may not suspend any rule prescribed by the board." (Emphasis supplied). The focus of this appeal is upon the emphasized sentence.

In Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175, 182 (1982) our supreme court reiterated the standards to be applied by the trial court in the exercise of its discretion to grant a declaratory judgment:

A reasonable summary of Borchard's position would require the following:

"There must exist a justiciable controversy -- that is to say:

"(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.

"(2) The controversy must be between persons whose interests are adverse.

"(3) The party seeking declaratory relief must have a legal interest in the controversy -- that is to say, a legally protectible interest.

"(4) The issue involved in the controversy must be ripe for judicial determination. Borchard, ...


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