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Vol. 72, No. 7, July 1999

Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Appellate Procedure | Civil Procedure | Employment Law |
| Habeas Corpus | Real Property | Torts |

Time Extensions - Sanctions - Dismissal

State v. Smythe, No. 97-3191 (filed 14 May 1999)

The defendant filed an appeal from a finding that his refusal to submit to a breath test was unreasonable and an order revoking his operating privileges. His attorney filed a request for an eight-day extension (five working days) in which to file a brief. The request related to a scheduled vacation by an associate in the attorney's office. The court of appeals denied the request and dismissed the appeal as a sanction for failure to file the brief. Wis. Stat. § (Rule) 809.83(2) (1995-96). The court of appeals looked, in part, at the attorney's "long history" of requesting time extensions and the past record of "stern warnings."

The supreme court, in an opinion written by Justice Prosser, reversed the court of appeals. This case did not involve the loss of jurisdiction because of an attorney's tardiness in filing a notice of appeal. Rather, it concerned a discretionary decision to grant a time extension within which to file a brief. An appeal can be dismissed based on an attorney's "bad faith or egregious conduct." In its succinct holding, the supreme court stated that "a court of appeals decision to dismiss an appeal may be reversed when there is compelling evidence that that court based its decision, in part, on the past practices of counsel in unrelated matters." (Emphasis added.) Because the court had considered such unrelated matters in this case, the supreme court remanded the case for reconsideration.

Nothing in the record revealed the client's "complicity in or knowledge of the delay in filing the brief nor his involvement in any of [the attorney's] previous motions for extension." The opinion also addresses the possible range of sanctions for "attorneys whose slipshod practices abuse the system, create unnecessary work, and delay speedy justice for others."

Justice Bradley concurred, joined by Chief Justice Abrahamson. The concurrence disagreed with the majority's conclusion that a reconsideration on remand was necessary. The record did not reveal bad faith or egregious conduct.

Issue Preclusion - Prior Criminal Proceeding - Privity

Paige K.B. v. Steven G.B., No. 97-0873 (filed 28 May 1999)

Steven was the father of two children. In 1992 he was convicted of sexually assaulting his children in June and August of 1991. The children and their mother sued Steven, his parents, and their insurer alleging a variety of claims. The claims against Steven's parents alleged negligence and negligent infliction of emotional distress "for failing to properly supervise Steven's contact with the children while the children were staying" in the parents' home. Based on issue preclusion, the trial court limited the parents' discovery as to the children and the sexual assault allegations. Put another way, the trial judge concluded that the fact of the sexual assaults had been conclusively determined by Steven's criminal conviction and his parents could not litigate that issue. The court of appeals certified the case to the supreme court.

The supreme court, in a decision authored by Justice Bablitch, reversed. First, the court clarified the standard of review governing issue preclusion. Parsing prior case law, the court held "that whether issue preclusion applies against a litigant who was not a party to a prior proceeding requires a two-step analysis. ... If, as a matter of law, the litigant against whom issue preclusion is being asserted is not in privity or does not have sufficient identity of interest with a party to the prior proceeding, applying issue preclusion to the litigant would violate his or her due process rights and the analysis ends. If, however, as a matter of law, the litigant is in privity or has a sufficient identity of interest with a party to the prior proceeding, the court should turn to the second step." This second step "is whether actually applying issue preclusion to the litigant comports with principles of fundamental fairness."

The supreme court held that neither Steven's parents nor their insurer were in privity with Steven in the criminal case. "They were not parties to the criminal action; they had no opportunity to examine or cross-examine witnesses. They were, in essence, bystanders." Their agreement to supervise the children within their home did not create privity or an identity of interest. The case was remanded to the circuit court for a determination of the continuing propriety of the order limiting discovery.

Certiorari Petitions - Fee Waiver Statute

Luedtke v. Bertrand, No. 97-3238-W (filed 28 May 1999)

The supreme court was equally divided over whether to reverse or affirm the lower court's decision in this case (Justice Wilcox did not participate). For that reason the court of appeals' decision was affirmed. The case involved a certiorari petition filed by a state prisoner based on his loss of recreational time and its eligibility under the fee waiver statute. See 220 Wis. 2d 574, 583 N.W.2d 858 (Ct. App. 1998).

Qualified Immunity - Property Interest Under State Law - Pre-discipline Due Process Under Federal Law

Arneson v. Jezwinski, No. 95-1592 (filed 5 May 1999)

The plaintiff filed suit under 42 U.S.C. section 1983 alleging that when the defendants demoted him and suspended him without pay for 30 days following a sexual harassment complaint filed against him by a subordinate employee, they violated his clearly established constitutionally protected property interests in his wages and continuous employment. These events occurred in April 1990. Before the supreme court the case required resolution of the following issues:

1. Did state law clearly establish in April 1990 that the plaintiff had a property interest in his wages and in his continuous employment with the University of Wisconsin?
2. If so, did federal law clearly establish in April 1990 the amount of due process the plaintiff was entitled to receive prior to being deprived of his property interests?

These questions were critical because if the answer to either of them is in the negative, then the various U.W. defendants are entitled to qualified immunity.

In a unanimous decision authored by Justice Steinmetz, the supreme court concluded that in April 1990 Wisconsin law clearly established that the plaintiff had a property interest in his wages and continuous employment. The plaintiff did enjoy permanent status in his management information specialist position, could only be dismissed for "just cause" and, therefore, had a property interest in continued employment under clearly established state law. See Wis. Stat. § 230.34(1)(a).

Nevertheless, the supreme court concluded that federal law did not clearly establish in April 1990 the amount of due process the plaintiff was entitled to receive prior to being deprived of his property interests. The amount of process due is a matter of federal constitutional law and, to present a cognizable claim, the plaintiff had to show that the amount of due process which the defendants were required to accord him was clearly established in 1990. In Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985), the U.S. Supreme Court held that prior to termination, "the tenured public employee is entitled to oral and written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story."

In this case the state supreme court agreed with the defendants that Loudermill did not clearly establish the process due an employee whose discipline falls short of termination. There is evidence in Seventh Circuit cases decided after the plaintiff was disciplined that the due process requirements attendant upon deprivations of property interests less significant than continued employment may be less than that required by Loudermill for terminated employees.

Thus, the Wisconsin Supreme Court concluded that in 1990 the breadth of Loudermill was unclear as to the necessary process due an employee prior to discipline short of termination. The court could not say that the unlawfulness of failing to provide the plaintiff with a pre-demotion or pre-suspension hearing would have been apparent to a reasonable official at the time the plaintiff was disciplined.

Accordingly, the court concluded that the U.W. defendants are entitled to qualified immunity in this lawsuit.

Chief Justice Abrahamson did not participate in this decision.

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