In Dillenberg v. Hobart/Lawrence Police & Fire Commission, No. 2015AP1313 (March 30, 2016), the Wisconsin Court of Appeals provided a clear overview of the two different procedural paths available after a Police and Fire Commission levies discipline. The decision—which upheld Dillenberg’s discharge from the police department—is an excellent primer on statutory and certiorari review under Wisconsin law.
George Dillenberg was a police officer with the Hobart/Lawrence Police Department from June 2007 to December 10, 2013. The Police Chief filed a statement of charges with the Hobart/Lawrence Police & Fire Commission (PFC), recommending that Dillenberg be terminated in response to nine violations of departmental rules. Following five days of public evidentiary hearings, extensive legal briefing, and deliberations, the PFC rendered a decision finding “just cause” to sustain the charges and discharge Dillenberg from the police department.
Dillenberg appealed to the Circuit Court for Brown County under both of two distinct avenues of appeal: (1) statutory appeal under Wis. Stat. § 62.13(5)(i) and (2) a common law appeal by writ of certiorari.
Statutory review focuses on whether the PFC reached the right answer. To make that determination, the court holds a full trial and examines the facts anew, deciding for itself whether the PFC had just cause to sustain the charges presented. Once the Circuit Court has held that trial and rendered a verdict, its determination is “final and conclusive,” such that there is no appeal from its judgment.
Certiorari review, by contrast, provides a more limited review of PFC action. It does not entail a full trial in the Circuit Court. Certiorari review examines four questions: (1) whether the PFC acted within its jurisdiction; (2) whether the PFC proceeded under a correct theory of law; (3) whether the PFC acted in a manner that was arbitrary, oppressive, or unreasonable; or (4) whether the PFC might have reasonably made the order or finding that it made based on the evidence presented. If the answer to these questions is yes—regardless of whether the Circuit Court believes the PFC ultimately reached the right outcome—then the writ must be denied. An appeal may be taken from the Circuit Court’s determination on the narrower certiorari review.
Note that, where, as in Dillenberg’s case, both statutory appeal and certiorari review are sought, the full trial provided for the statutory appeal renders some of the questions normally considered on certiorari review unnecessary. The Circuit Court trial is itself a test of the evidence presented to the PFC and whether the evidence supports a rational inference of just cause. As a result, where a statutory review has been taken, certiorari review focuses even more narrowly on only the first two of the four questions ordinarily presented. See Dillenberg, No. 2015AP1313, ¶ 8. Thus, as the Court of Appeals explained, the full trial provided by the statutory appeal comes at a cost to the certiorari appeal: “the aggrieved receives a decision from the circuit court on the common law certiorari review but only as to the commission’s jurisdiction or whether the commission proceeded on a correct theory of law.” Id., ¶ 9. Moreover, an appeal from the circuit court’s decision on certiorari, “goes solely to those same two issues: whether the commission acted within its jurisdiction and whether it proceeded on a correct theory of law.” Id.
In Dillenberg’s case, the Circuit Court determined after the trial held pursuant to the statutory appeal that there was “just cause” for the PFC’s ruling and therefore affirmed Dillenberg’s termination. The Circuit Court separately denied the petition for a writ of certiorari, because it determined that the PFC had acted within its jurisdiction and under a correct theory of law.
The Court of Appeals noted that it had no jurisdiction to review the Circuit Court’s judgment after the retrial provided by the statutory appeal. It acknowledged jurisdiction over the certiorari petition, though it noted that its role in that process was not to review the Circuit Court’s ruling but the underlying PFC determination.
Dillenberg’s sole argument on certiorari appeal was that the PFC proceeded on an incorrect theory of law as it “tried” the case against him rather than acting as an impartial body. The Court of Appeals dismissed this argument that the PFC was biased as lacking sufficient evidentiary support. See id., ¶¶ 12-13. Thus, the Court affirmed the PFC’s decision to discharge Dillenberg from the police department.
The Dillenberg decision provides a clear and helpful explanation of the differing standards of review depending on how and through what avenue the officer seeks review of the PFC’s decision. The opinion thus provides a useful reference to anyone seeking judicial review of a PFC order. For additional information about the PFC process in general, including appellate options, see Stafford's previous blog post on this topic.
If you have any questions about the PFC disciplinary process, contact a member of Stafford Rosenbaum LLP’s Government Law team members.