Court Error – Theory of Law

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WI Court of Appeals – District I

Case Name: Ryan T. Trapp v. Board of Fire and Police Commissioners of the City of Milwaukee

Case No.: 2016AP1970

Officials: Brennan, P.J., Kessler and Brash, JJ

Focus: Court Error –  Theory of Law

On certiorari review we review the Board’s decision, not the circuit court’s. Herek v. Police & Fire Comm’n of Menomonee Falls, 226 Wis. 2d 504, 510, 595 N.W.2d 113 (Ct. App. 1999). Our review is narrower than the usual certiorari review because Trapp had a statutory review before the circuit court. Id. In these cases, certiorari review is limited to two questions: “whether the [Board] kept within its jurisdiction and whether it proceeded on a correct theory of the law.” Id. Trapp does not challenge the Board’s jurisdiction.

Trapp argues that the Board proceeded on an incorrect theory of law in two respects. First, he argues that the Board improperly deferred to the Chief’s recommendation when it made its “good of the service” determination and that in so doing it violated the law on the preponderance burden. Second, he argues that his right to due process was violated in two ways. He argues he was deprived of his due process right to be judged by an impartial board when the Board “forfeited its independence” and deferred to the Chief on the question of discharge. He also argues that he was deprived of his due process right to fair notice when the Board “disregarded both the Chief’s own written policies and past disciplinary practices,” and sustained discipline that is more severe than Trapp had notice of.

We conclude that the Board proceeded on a correct theory of the law when it determined that the good of the service required that Trapp be permanently discharged. The Board’s written decision makes clear that it properly applied the preponderance of the evidence standard to each of the just cause standards as required by the statute and gave no deference to the Chief on these points. Contrary to Trapp’s assertion, the Board’s ultimate decision as to “the good of the service” did not violate the statute because the statute does not work the way he thinks it does. We conclude that to the extent that Trapp’s due process arguments are about the reasonableness of the discipline, they were addressed by the circuit court and are unreviewable by this court.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.