Briefs in response to
motion on standing

[What follows are two briefs submitted by Bill Lueders to the Madison Police and Fire Commission in September 1998, in response to a motion from the respondent to dismiss Lueders’ complaint on grounds that he lacked "standing" to bring it.]

As of this writing, I have not seen any arguments advanced by the Respondent in support of this motion. Still, there are a few point I can already make.

I believe the timing of this motion--five months after my complaint--represents an abuse of process. If Respondent really thought he had a shot of beating this complaint by asserting my lack of standing, he should have done so in his initial response, dated April 14, 1998, or at the very latest at the initial hearing on April 20. Yet he never raised the issue here, or in any pleadings. If the Respondent is able to prevail on this claim, I hope and expect that the city of Madison will be seeking to recover all of the attorney's fees that Schwarzenbart has received for the following steps: deposing me, responding to my requests for discovery, filing his Memorandum in support of Karofsky's Motion to Quash and his own Motions in Limine, reviewing my witness lists and exhibits, issuing subpoenas, preparing for and appearing (via phone) at the May 27 hearing and getting his case ready for hearings. All of these steps would have been entirely unnecessary to a proceeding that could have been halted with a simple challenge of standing.

That said, I do not believe the Respondent's challenge of standing has a shred of validity. One of my two causes of action is that Lt. Riley lied to me in denying knowledge of Patty's letters in early February; if the person to whom a police supervisor tells a lie, in violation of department rules, does not have standing to complain about it, who does? My second cause of action is that, on receipt of Patty's letters, Lt. Riley violated the department's policies regarding complaint acceptance and investigation. I am a named plaintiff in an Open Records lawsuit filed by my paper, Isthmus, and the Wisconsin State Journal in 1994. In a strongly worded 1995 decision that was not appealed, Judge Sarah O'Brien ordered the department to release records of complaints received by citizens against police. Pursuant to this ruling and the Open Records Law, I requested and in late January 1998 received access to "all complaints" that the Madison Police received from citizens in 1997. Patty's complaint was not among the 30 citizen complaints that the department released in response to this request, even though it is easily more serious than any of the complaints that were released. The reason this complaint was not provided, I learned, was that Lt. Riley broke the rules regarding complaint acceptance and investigation. As a person who did not receive a record to which I am entitled because of misconduct on Lt. Riley's part, I think I have standing galore.

It is not necessary, however, that I demonstrate a personal grounds for action in order to have standing to pursue this complaint. The state statute governing Police and Fire Commissions, 62.13(5)(b), sets forth that complaints may be filed "by the chief, by a member of the board, by the board as a body, or by any aggrieved person." The statute does not define "aggrieved person," nor does the PFC's Rule 7. By any definition, I think it must inconclude a citizen who has been lied to and deprived of information due to police misconduct.

In fact, I believe this statuatory language regarding "aggrieved person[s]" has been has been interpreted much more broadly. PFC Council Scott Herrick, in a letter to me dated June 2, 1997, stated that the PFC process "is available to any 'aggrieved person.'" Indeed, he continued, "when chiefs use it for discipline purposes they are using the same process that a citizen can use." In a second letter dated June 9, Herrick further advised, "Don't forget that anyone, inside or outside the department, can file a public complaint, get a public hearing, and have the full benefit of subpoena power. Don't forget that [Capital Times' founder Bill] Evjue brought a complaint against [Chief Bruce] Weatherly, and 150+ officers signed a complaint against [Chief David] Couper."

These letters were key to my securing the approval of my supervisors at Isthmus to file this complaint. Either Scott Herrick doesn't know what he's talking about, which I highly doubt, or else it's pretty clearly established as a matter of law that the PFC process is open to anyone, even me. I may have a response to the Respondent's written arguments; but, already, I think there is ample reason for the Commission deny the Respondent's Motion to Dismiss.

Thank you for your time and attention to this matter.

Dated this [11^th] day of September, 1998 by

________________________

Bill Lueders
News Editor

cc: Paul Schwarzenbart

[End of document.]

 THE BOARD OF THE FIRE AND POLICE COMMISSIONERS
OF THE CITY OF MADISON

_________________________________________________________

BILL LUEDERS,
Complainant
vs.
LT. DENNIS GEORGE RILEY,
Respondent

_________________________________________________________

_________________________________________________________

The Respondent, Lt. Dennis George Riley, through his attorney, Paul Schwarzenbart, advances several arguments in support of his contention that I lack standing to file a complaint in this matter with the Police and Fire Commission. Here are some thoughts in response:

The Respondent's arguments are flawed, untimely, and in bad faith. They represent the Respondent's continuing efforts to keep the PFC from hearing evidence in this matter while allowing the Respondent's attorney to continue enriching himself at the city's expense. I believe the Respondent is deliberately seeking to run out the clock on this proceeding until his retirement at year's end, when the Commission's authority to discipline him expires. I believe that if the PFC wants to continue representing that its disciplinary process is available to citizens and not just chiefs, it should not only reject these arguments but rebuke the Respondent and his attorney for their conduct.

I notice that none of the case law the Respondent has dredged up in support of his pleading pertains specifically to PFCs. The brief takes definitions of "aggrieved person" and "person aggrieved" from other statutes and seeks to apply it to PFC proceedings, which have historically been used by all sorts of persons with grievances against police. I would suggest that the PFC is not exactly like other entities in that its authority was deliberately designed to be broader. The statute says: "Charges may be filed against a subordinate by the chief, a member of the board, by the board as a body, or by any aggrieved person." I do not think it is typical or standard for members of quasi-judicial bodies to have the independent authority to initiate disciplinary proceedings; consequently, I think the PFC ought to be subject to rules that govern the PFC, not other entities.

The Respondent claims to divine the intent of the Legislature from its decision to use a particular phrase in its crafting of the statute. I suggest that the intent of the Legislature is more clearly reflected in its deliberate use of broadly inclusive language that gives standing not just to chiefs but board members and "any" aggrieved person. There is no reference in the statute to Sec. 227, which defines aggrieved person as a "person or agency whose substantial interests are adversely affected by the determination of an agency." In this case, however, I submit that I easily meet this standard.

As I noted in my communication to the Commission dated Sept. 11, one of my two causes of action is that Lt. Riley lied to me in denying knowledge of Patty's letters in early February; the Respondent's motion does not challenge my standing with regard this aspect of my complaint. My second cause of action is that Lt. Riley violated the department's policies regarding complaint acceptance and investigation. Again, I submit that I have standing galore.

I am a named plaintiff in an Open Records lawsuit filed by my paper, Isthmus, and the Wisconsin State Journal in 1994. This was an outgrowth of our attempts to report on issues of undeniable concern and relevance to the Madison community--and we won, decisively. Judge Sarah O'Brien ordered the department to release records of complaints received by citizens against police; since then, these records have been routinely provided pursuant to this ruling and the Open Records Law. But this victory is meaningless unless there is some consequence for supervisors who violate department rules and suppress serious complaints. The letters of complaint received from Patty, which contain the most serious accusations of misconduct filed by any citizen against Madison police in all of 1997, should have been released in response to my request to the department for "all complaints" received against officers from citizens that year. It was not because Lt. Riley violated department rules and kept this serious complaint under wraps.

The fact that Isthmus was deprived of information it should have received as the result of its huge investment of time and money in a protracted court battle was instrumental in the decision of my supervisors to allow me to file this complaint in my formal capacity as news editor of Isthmus. Our interests as a paper--and the interests of the community in having access to complaints against officers--are directly affected by Lt. Riley's actions.

Beyond that, I think I also have standing as a citizen to object to misconduct that compromises the rights of people in this community. If police supervisors can violate the department rules in order to suppress a serious complaint from Patty, they can do so with the complaints of other citizens. I do not, as a matter of fact, wish to live in a community where a serious allegation of police misconduct can be suppressed without consequence.

I also think the timing of this motion stinks to high heaven. I am attaching copies of Mr. Schwarzenbart's billing statements to the city of Madison through June 19, 1998. Notice that none of the $6,322.45 for which he has billed the city concerns any investigation into or legal work regarding the issue of standing. Obviously, if Mr. Schwarzenbart intended to advance this argument, he should have done so much earlier in the process. I can think of only two reasons for his failure to do so.

The first: Mr. Schwarzenbart made a deliberate decision to pocket as much money as he could prior to raising this objection. In that case, a ruling in his favor should be followed by an attempt by the city to recover all of the money it has paid Schwarzenbart for these other, wholly unnecessary steps. The second: Schwarzenbart knew all along that this was a losing argument, and he advanced it only in order to further delay the process and force me, the Complainant, to jump through still more hoops before being permitted to take a few hours of the Commission's time to present my case.

I hope the Commission recognizes the Respondent's belated legal hair-splitting regarding standing for what it is: a direct threat to the authority of the PFC. What's next? An attorney arguing that a parent can't file a PFC complaint over police abuse of her five-year-old child, since only the child has "standing"? An attorney claiming that the mayor--or members of the firefighters' union--lack standing to complain about misconduct that fails to draw protest from a given chief? An attorney insisting that the Rape Crisis Center has no standing to complain about the treatment of a rape victim who turned to it in need?

The Respondent's arguments run contrary to the spirit of accessibility to which the PFC aspires. Certainly, I would hope the Commission will henceforth go to even greater lengths to warn potential complainants that the PFC process is user-friendly only to police chiefs and not citizens. I seriously doubt whether many citizens would be as prepared as I have been to press a complaint in the face of these deliberate efforts to delay and complicate the process. In response to these efforts, I ask the Commission to stick to the timetable it has set for hearings and to issue its final ruling, as the law requires, within three days of the conclusion of hearings.

If the PFC agrees that I lack standing pursuant to the Respondent's objections, I urge the members of the Commission to sign on as complainants, as the statute seems to permit. If the PFC agrees that only Patty has the authority to complain about the conduct at issue, then let her sign on as a co-Complainant. I'm enclosing a statement of support from Patty regarding this proceeding.

Finally, I wish to object formally and as a matter of record to the insults that the Respondent's attorney has hurled at me throughout this proceeding. From P. 10 of his brief: "Lueders' only involvement with respect to the Murphy Letter arises from his 'status' as a journalist, having made Murphy's claim of sexual assault, and her prosecution for obstruction, causes celebre in the Isthmus, as a component of what appears to be an obsessive pattern of attacks on the professionalism of the MPD and the Dane County District Attorney's Office." A footnote follows: "The extent of this obsession is revealed by both the number and tone of the articles which Lueders attached to his complaint. Lueders has since published many similar articles of comparable, or even more strident, tone since he filed his complaint in the proceeding."

I ask that the Commission reject this attempt at character assassination. If Mr. Schwarzenbart is able to identify any factual errors in any of my articles or columns on this case, he should do so. To date, no one has. I further submit that the frequency and tone of my coverage has been entirely appropriate to the issues at hand. It's not true that I have obsessively attacked the police; in fact, I have on numerous occasions complimented the Madison Police Department and sided with officers regarding individual disputes. I have given this story the attention it deserves, with the support of my supervisors. My reporting has been fair and accurate. During the time I have covered this case, I have written dozens of other stories on everything from race relations to controversies over tree trimming. In more than a decade of work as a journalist, I have covered many hundreds of stories and never been sued or even publicly accused of misquoting sources; on occasions where I have made mistakes, I have promptly acknowledged them and run appropriate corrections. Looking on my wall as I type, I count 27 journalism awards. In fact, I have been honored three times by the State Bar of Wisconsin for my work on legal issues, including a 1996 Golden Gavel Award for "an outstanding contribution to the public understanding of law and justice." I have done nothing, in reporting on this story and filing this complaint, that is not in keeping with the highest ethical standards of my profession.

Dated this [16^th] day of September, 1998 by

________________________

Bill Lueders
News Editor

cc: Paul Schwarzenbart