STATE OF WISCONSIN
STEVEN A. RUNICE, Plaintiff, VS.
VILLAGE OF ARENA, LESTER BAKER, DAVID ENO, and JOANN MILLER, Defendants.
VERN SACKETT, ANN SACKETT, WAYNE BAHR, and HELEN BAHR, Plaintiffs, vs.
VILLAGE OF ARENA, LESTER BAKER, DAVID ENO, and JOANN MILLER,
Defendants.
CIRCUIT COURT
IOWA COUNTY
Case No. 99 CV 151 CircuitCourt,IowaCoun~WI FILJ;D ' SEPl 2 2000
CAROLYN K. OLSON,CLERK
Case No. 99 CV 152
ORDER
This matter comes before the Court as a result of efforts by defendants to eliminate their police department and to zero out the police budget.
It became apparent to the Court during the course of these proceedings that for reasons not disclosed to the Court there was a continuing dispute between the village board
• of trustees and the village police department, and that the board had determined that it would
execute an end-run and avoid the provisions of Section 61.65 Wis. Stats. by eliminating the department budget. The procedural requirements of 61.65 Wis. Stats. require a "fair review prior to removal of a police chief. 11 As a part of the board's decision to terminate the services of Chief Runice as a village police officer, the village chose to deny funding for the year 2000 in its annual budget. A member of the board on an earlier occasion had threatened the chief with a disciplinary action in what the board felt was his II interference" with the directives of the village board. The village board dissolved the police committee and sought to replace the police committee with the village board as committee of the whole. The board then chose not to fund the department.
As a consequence, plaintiffs herein brought action in Circuit Court on December 29, 1999. The board responded promptly and immediately entered into a stipulation for order that was signed on the day after the lawsuit was filed. This Court did not have a hand in the process of stipulating for the order, did not dictate the order, and did not mediate the stipulation for order. That negotiation was conducted by the parties and their respective counsel. The stipulation and order required the village to adopt a budget for law enforcement purposes for the year 2000 and to fund the village police department in the amount of $68,967 for the year 2000. The consent order also required the village to reinstate Plaintiff Runice as chief of police for the Village of Arena.
The board's actions and the subsequent commencement of legal actions prompted a great deal of public interest in the proceedings and resulted in a series of newspaper articles and constituent letters both for and against the action of the board and the plaintiffs. The Court's file includes both letters received and copies of newspaper accounts of public
response, which I acknowledge reading.
Resolution of this dispute compels discussion of citizen recourse to the ballot box.
An informed citizenry with appropriate civic interest has the capacity to exercise its discretion in discussing and legislating the future course of the village, and that is the way it should be. A Court must draw appropriate lines limiting its duties to those issues properly before it. There are sound reasons for application of judicial restraint thereby leaving those ballot box issues to the electorate. This Court is aware that there have been actions taken which have addressed irregularities in village elections. Nevertheless, blanket corrective orders which, while they may tempt a Court to act, must be limited in the exercise of the Court's thirst for a cure. Part of the resolution of this dispute lies within the electoral process. This Court will try to limit itself to the remedies compelled by defendants' failure to follow their commitments.
The board allegedly failed to comply with the stipulation it had entered into, and this Court then held a series of hearings. Following a motion to set aside the consent order this Court found the board in contempt for failure to comply with the order stipulated for on December 30, 1999.
Paragraphs 1 and 2 of the stipulation for order sought to continue a police department for the village and budget for that department.
Paragraphs5 and 6 related to the statusof Chief Runice.
This Court recognizes that Chief Runice elected midway during this proceeding for compelling reasons satisfactory to himself, to accept employment in another municipality and was not reinstated by the village. This Court is unable to ascertain with any clarity what the 3
village's efforts were to reinstate Chief Runice. Suffice it to say, it did not do so.
During the course of the proceeding, this Court became convinced that the village was disingenuous in its representations to the Court and consistently failed to proceed with a diligent, sincere effort to meet the responsibilities the village created for itself in the consent for order. Defendant's effort to blame Chief Runice for the delay in resolving this dispute is not credible and is indicative of the indifference defendant exhibited toward implementing the Court's order. It is apparent to this Court that the village repeatedly and willfully looked for a method to avoid meeting the responsibilities it created for itself in stipulating for the order of December 30, 1999.
The Court determines that the primary overall objective of the two legal actions was to continue to provide police services for the Village of Arena.
This Court finds that at all times following the making of the stipulation for order that the village board had notic.e and knowledge of that order, that at all times following making of that consent for order the village had the ability to comply with that order, that the village failed to comply with the order by an unreasonable and undue delay in providing funding and failed specifically to reinstate Chief Runice in his capacity as chief of police of the Village of Arena, and that Paragraphs 1, 2, 5 and 6 of the Court's order were willfully and unreasonably flouted. This Court determined that the village was in contempt on July 3 and advisedthe villageboard that the effectivedate of that contemptwas February 1, that the contempt was continuing and would continue as a daily violation until the village board had reinstated police service for the Village of Arena.
"The power of the Court to punish for contempt is drastic and extraordinary and 4
exists for the purpose of enabling the Court to enforce a fair and orderly administration of justice and to maintain the dignity and discipline essential to that end." (In Re: Cichon, 227 Wis. 62)
"It is well settled beyond any question in Wisconsin that all courts have an inherent power to hold in contempt those who disobey the Court's lawful orders. In Re Kading. 70 Wis 2d 508 (1975). Despite the fact that the power exists independently of statute, this Court ruled over one hundred years ago that when the procedures and penalties for contempt are prescribed by statute, the statute controls. State ex. rel. Lanning v. Lonsdale, 48 Wis 348 (1880)" See contempt in State v. Lehman, 137 Wis. 2d, 65.
Section 785.04(1)(a)(c)(d) and (e) Wis. Stats. is, in this Court's opinion, applicable to this proceeding. The Court finds that expenses incurred by plaintiff in obtaining an injunctional order are within the frame of the statute applicable to contempt.
Pursuant to 785.04(1)(a), to compensate plaintiffs for losses and injuries suffered by that party as a result of the contempt of court, this Court will order as follows.
AS TO 99 CV 151
The village shall pay to Steven A. Runice the sum of $10,575.00, which recognizes a two-month period of salary loss incurred by Chief Runice, together with five percent prejudgment interest commencing April 1 and continuing until paid in full.
As to attorney fees to Attorney Michael C. Witt for loss incurred by Chief Runice in representing Chief Runice before this Court in 99 CV 151; the Court finds that the fair and reasonablefee for thoseservicesis $125per hour. The Courtfindsthat plaintiff'scounsel expended 50 hours in representation of plaintiff and, therefore, sets the fees payable to plaintiff's counsel in the amount of $6,250.00, together with prejudgment interest at 5 percent (Sec. 138.04 Wis. Stats.) from January 1, 2000, until paid in full.
As the Court recognizes a duty of payment to plaintiff's counsel in 99 CV 151, the Court also recognizes an obligation for payment of attorney's fees incurred by Plaintiff's Sackett and Bahr in 99 CV 152.
AS TO 99 CV 152
The Court will thereupon determine that the fees incurred by plaintiffs in 99 CV 152 are $19,468.68. The Court enters that as the sum due plaintiff to reimburse plaintiff for loss or injury suffered by plaintiff as a result of defendant's contempt of court.
The·Court looks at the attorneys' fees reimbursed to Sackett and Bahr with realization that they are aggrieved citizens, that they have sought redress against a governmental entity, and that it is consistent with sound public policy and fairness, that aggrieved citizens, who feel compelled to litigate grievances against a unit of local government and who prevail in that litigation and who are frustrated by the defendant's failure to comply properly with the commitments made by defendant shall not then be required to bear the cost of that intervention. This Court finds that the sum of $125 per hour is a fair fee being used in Iowa County for professional services. Plaintiffs herein hired an attorney whose fee is somewhat larger than that, and while the Court might feel persuaded to reduce the fee to that being used in Iowa County, defense counsel and defendants were fully aware of the exposures they subjected themselves to, and the Court cannot in good conscience require a prevailing party to subsidizethe activitiesof the defendant.
Regarding the subject of attorney fees, I must also remind counsel that while in the midst of a hearing I did not order disclosure of defense counsel's fees, I had no need to do so. The costs and fees incurred by the village are a matter of public record and shall be
compiled and disclosed in the ordinary course of business to the village board and are proper subject of public scrutiny.
As to Sec. 785.04(1)(c) Wis. Stats., the Court has been advised and will accept representation of the village that the village did reestablish a law enforcement service for the village on July 17th of 2000. The village acted to create a position of village marshall pursuant to Section 61.28 Wis. Stats. In doing so the village hired a marshall who will serve as an employee at will and who was given a one-year probationary period. The Court
. concludes that the village failed to comply with the order until it created and filled a position on July 17, 2000.
I, therefore, find the per diem forfeitures to apply from February 1 to July 17, 2000inclusive of both dates, and impose a sum of forfeiture pursuant to 785.04(1)(c) in the amount of $250 per day. The sum of that forfeiture is computed at $42,000 (250 x 168).
Courts of record have the power to punish for contempt those who offend the authority or dignity of the Court. The defendant herein took it upon itself to delay and dance around the direct objectives of the consent order of December 30, 1999. They created straw man arguments, they lacked diligence, they lacked respect for the order, respect for their obligations and through dilatory and disingenuous behavior, unnecessarily prolonged this action.
Indicative of defendant's beguiling behaviors is the decision to employ a village marshall, put him on probation for a year and describe him as an employee at will. This Court is cognizant of Section 61.195 (Wis. Stats.), which will allow the village at any time to discontinue the office of marshall or constable, which this Court will not tolerate.
The Court will look to the essence of the consent order as being for the purpose of providing the village with a police department.
The actions of the village board have not inspired this Court to place confidence in their desire to provide independent, fair and impartial police services. It appears fundamental to the duties inherent in law enforcement that the function be handled without political influence or favor so long as these enforcement activities are in keeping with the principles of fairness and impartiality and are efficiently administered.
Pursuant to 785.04(1)(d) and (e), Wis. Stats. the Court will order the following:
The village board shall, pursuant to Section 61.65(1)(am)(l) Wis. Stats., create a police department and reinstate a three-person citizen committee. This Court's objective is to provide for a police department for the Village of Arena consistent with the order that was entered December 31, 1999. Efforts to further circumvent that order will not be tolerated. In order to effectuate the restoration of police services of the village board, there will be a three-person citizen committee to administer the law enforcement responsibilities of the Village of Arena. As soon as that committee is created, the three positions filled and rules for their procedures are in place and the citizen committee is functioning, the sum ordered as a per diem forfeiture for contempt will be vacated. If the three-person citizen committee is not in place and functioning by February 1, 2001, the $42,000 forfeiture shall be paid to the Clerk of Court for Iowa County. In order to effectuate the reinstatement of a three-person citizen committee, plaintiff herein, i.e. Sackett and Bahr, shall recommend one person to serve on that committee. The village board may recommend one person to serve on that committee, and the two persons nominated shall cooperate in finding a third person who will
agree to be nominated to serve on the 61.65 committee, all of whom shall be nominated to the village board for appointment. The village board shall then act on the recommendations and reinstate a police committee. The village marshall shall then report to the citizen committee. The village will not escape its responsibilities to provide law enforcement by further delay and dilatory behaviors.
The objective of the order was to assure a police department for the Village of Arena, and that defendants are ordered to do. You have the ability to comply. If you fail to do that by February 1, 2001, the forfeiture set forth above in the amount of $42,000 will be paid to the Clerk of Courts of Iowa County. If you set up that citizen committee, you may avoid a forfeiture of $42,000. Thus, you have the keys to compliance in your own hands. If you fail to exercise that, you do so at your peril.
DATED: September \) , 2000 ...
BY THE COURT:
William D. Dyke Circuit Judge