2000 Significant Court Decisions

by Daniel W. Hildebrand

Constitutional Law - Public School Finance

Probably the most difficult case decided in 2000 was Vincent v. Voight,1 which challenged the constitutionality of the state school finance system under Chapter 121 and sections 79.10 and 79.14 of the Wisconsin Statutes. Petitioners argued that the state school finance system is unconstitutional under the Wisconsin Constitution 1) article X, § 3 - the uniformity clause of the education article; and 2) under article I, § 1 - the equal protection clause.

The court concluded that the purpose of article X, § 3 - the uniformity clause, is to require that each student be provided with an equal opportunity for a sound basic education, one that will equip students for their roles as citizens and enable them to succeed economically and personally. Petitioners failed to prove beyond a reasonable doubt that the statutes were unconstitutional. Although petitioners argued that there were inequities in the school finance system resulting from disparity in the tax base and application of the state aid formulae, the Wisconsin Legislature's standards must be respected because the Legislature is uniquely equipped to evaluate and respond to such questions of public policy. The court relied upon previous cases indicating that disparity in the revenue-raising capacity of a school district does not constitute a violation of the uniformity clause.

The court also held that revenue limits were not unconstitutional. Such limits do not absolutely bar school districts from increasing spending - they merely require a voter referendum to do so. Further, revenue limits were intended to provide property tax relief and actually have an equalizing effect because districts that spend less can increase their spending by a greater percentage without first seeking a referendum.

The court also held that the school finance system did not violate the equal protection clause. Acknowledging that Wisconsin children have a fundamental right to an equal opportunity for a sound basic education, the equal protection clause does not require absolute equality or precisely equal advantages on the basis of wealth. Absolute equality in per-pupil expenditures is not required. The school financing system provides all school districts with a guaranteed tax base.

Chief Justice Abrahamson, together with Justices Bablitch and Bradley, dissented in part. They argued that the parties and the lower courts did not have the opportunity to consider the state school finance system under the constitutional standard set forth in the majority opinion. They noted the concern that the state school finance system may be failing to provide each of the property-poor districts with necessary resources to provide all students with the opportunity for a sound basic education. Also, they were concerned that the state school finance system may be providing inadequate resources to those districts with disproportionately large numbers of high-need students. The parties should have a chance to present evidence and argument regarding the constitutional standards set forth in the majority opinion.

Justices Prosser and Sykes, while agreeing that the state school finance system is not unconstitutional, could not agree with the majority's definition of an expansive new state constitutional right to an equal opportunity for a sound basic education defined as an education that will equip students for their roles as citizens and enable them to succeed economically and personally. Any definition of education or standard for educational adequacy is inherently a political and policy question, not a judicable question.

Constitutional Law - Statutes of Repose

In Aicher v. Wisconsin Patients Compensation Fund2 the court upheld the constitutionality of sections 893.55(1)(b) and 893.56 of the Wisconsin Statutes. Section 893.55(1)(b) establishes the statute of limitations for medical malpractice actions of one year from the date of discovery and also operates as a statute of repose, tolling at five years from the date of the act or omission. Section 893.56, another statute of repose, extends the time for minors to initiate medical malpractice claims to the tenth birthday. The court overruled Estate of Makos v. Wisconsin Health Care Fund.3

Aicher was born with a defective right eye, known as a "poor red reflex." Had the condition been treated within six months of her birth, the problem would have been correctable. However, as a result of failure to treat, Aicher is now blind in her right eye. Under the statutes, Aicher would have had to file the malpractice action by her tenth birthday, about nine months before she claims to have discovered her condition. Relying upon Makos, the circuit court held the statutes unconstitutional because they violated the "right to remedy" clause of article I, § 9 of the Wisconsin Constitution, a provision that guarantees that every person shall be afforded a remedy for wrongs committed against his or her person, property, or character.

A party has the burden of proving statutes unconstitutional beyond a reasonable doubt. Statutes of limitation are based upon policy considerations best suited to the Legislature. Statutes of repose are different. A statute of repose limits the time within which an action may be brought based on the date of the act or omission and bears no relation to the accrual of a cause of action. Thus, a statute of repose can toll before an injury is discovered or even before an injury has occurred. Both types of statutes represent legislative policy decisions that dictate when the courthouse doors close for particular litigants.

The Legislature has provided that there is a right for medical malpractice claims only when the plaintiff seeks recovery either within three years of the injury or within one year of discovery, provided that five years have not passed since the act or omission. These provisions reflect the Legislature's view that prompt litigation assures fairness to the parties. The physician allegedly responsible is now deceased and is no longer able to defend himself. The court also concluded that the statutes did not violate the due process or equal protection clauses of the state and federal constitutions.

Justices Crooks and Bablitch dissented. The result of the decision is to deny children the opportunity to have their day in court. The statutes at issue are unconstitutional as applied to the facts of this case because the time for filing an action expired before the child discovered her injury. This closes the doors of the courthouse to young children and denies them the right to a remedy in violation of article I, § 9 of the Wisconsin Constitution.

The "Sham-affidavit" Rule

In Yahnke v. Carson4 the court adopted the so-called "sham affidavit" rule for application to summary judgment cases, citing several federal cases.5 The sham affidavit rule requires a trial court to disregard an affidavit directly contradicting prior deposition testimony. Contradictory affidavits tend to create sham, rather than genuine, issues. In announcing the rule, the court held that an affidavit that directly contradicts prior deposition testimony generally is insufficient to create a genuine issue of fact for trial, unless the contradiction is explained adequately. To determine whether the witness's explanation is adequate, the court should examine whether the deposition afforded the opportunity for direct and cross-examination, whether the witness had access to pertinent evidence or information prior to or at the time of the deposition, whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition, and whether the earlier deposition testimony reflects confusion, lack of recollection, or other legitimate lack of clarity that the affidavit justifiably attempts to explain.

Justice Bablitch, with Chief Justice Abrahamson and Justice Bradley, dissented. They argued that the rule is unwise because it puts the court into the position of weighing the evidence and choosing between competing reasonable inferences, a task heretofore prohibited on summary judgment. The rule is not needed because there are other remedies. If affidavits are made in bad faith, the party submitting those affidavits could be ordered to pay the other party the costs and attorney fees, which the filing of the affidavits caused the other party to incur. An attorney who files an affidavit for an improper purpose faces sanctions. If the case proceeds to trial, the witness may be impeached with prior inconsistent statements.

Family Code - Maintenance Based in Part Upon Contributions Prior to Marriage

In Re Marriage of Meyer v. Meyer6 the court held that it is appropriate to consider a spouse's premarital contributions to the education of a spouse in determining maintenance. The case arose from a relationship that spanned 12 years, during which time respondent received his undergraduate and medical degrees, completed his residency, and was at the threshold of beginning his career as a physician. The parties began dating in 1985, began living together in 1986 while respondent was pursuing his undergraduate education, and married in 1993. During the time they lived together, petitioner continued to work while respondent attended school. In 1997, petitioner filed for divorce.

One of the factors that a circuit court can consider when making a maintenance award is the contribution by one party to the education, training, or increased earning power of the other.7 There is nothing in the statute that limits the contributions to those that arose during the marital period. Also, the Legislature directed that the Family Code be liberally construed.

Justices Sykes, Wilcox, and Crooks dissented. The Family Code does not apply to claims of parties who are dissolving nonmarital cohabitation relationships. There is nothing in the maintenance statutes that can be reasonably read to authorize circuit courts to award maintenance for periods of premarital cohabitation. The court has expanded the statute beyond the intent of the Legislature because it has in effect extended the "marital period" beyond the dates that the marriage was actually in effect. The absence of language of expansion is more significant than the absence of language of limitation. Furthermore, the Family Code pertains only to the institutions of marriage and the family, neither of which is defined in such a way as to include either nonmarital or premarital cohabitation.

Negligence - Inmate Confined in a Health Care Center

In Jankee v. Clark County,8 Jankee, a mentally disabled patient who was committed to Clark County's care facility, was seriously injured during an attempted escape. He sued Clark County for negligently failing to adequately supervise him while he was in the county's custody and control. He also pursued negligence claims against the building contractor, the subcontractor who installed the windows, and the manufacturer of the windows for failure to design and manufacture a reasonably safe product. The court of appeals affirmed summary judgment granted to the contractor defendants holding that the defense of government contract immunity applied. The court of appeals, however, reversed summary judgment on the claim against Clark County, concluding that if Jankee were incapable of controlling or appreciating his conduct, he could not be held contributorily negligent.

The first issue is whether a mentally disabled plaintiff who is involuntarily committed to a mental health facility can be held contributorily negligent for injuries sustained during an escape attempt. The court held that Jankee's claims were barred because his negligence exceeded the negligence of each defendant. Jankee's hospitalization resulted from his failure to comply with a medication program that controlled his mental disability. A reasonable person would understand that he was required to maintain his prescribed medication in order to avoid potential ramifications of his mental disability. Also, Jankee was bound to exercise the duty of ordinary care when he tried to escape. Wisconsin holds mentally disabled defendants to the reasonable person standard of care. The rare exception to this standard applies only when the person has no prior notice or forewarning of the potential for becoming disabled and the disability renders the person incapable of conforming to the standard of ordinary care.

Clark County's custody and control of Jankee did not create a duty that overrode Jankee's duty to exercise ordinary care for his own safety. Clark County established a special relationship resulting in a duty to aid or protect Jankee. Clark County voluntarily took the custody of Jankee under circumstances such as to deprive him of his normal opportunities for protection. Hospital and prison settings alter expectations of responsibility for safety and reasonably deprive people of their normal opportunities for protection. However, Clark County could not have foreseen Jankee's escape attempt. A hospital is not the insurer of its patients against injury inflicted by themselves, but is only required to use such means to restrain and guard its patients as would seem reasonably sufficient to prevent foreseeable harm. No cause of action arises unless the hospital has notice of an individual patient's disposition to inflict self-injury. Jankee had no history of escape attempts, and had expressed no thoughts of elopement during his confinement.

Chief Justice Abrahamson and Justice Bradley dissented. They agreed that Clark County assumed the duty to provide reasonable care to shield the plaintiff - a protected person - from foreseeable harm while he was at the facility. However, the majority reached its decision by weighing conflicting evidence and inferences. Given Jankee's extensive history of mental illness, including violent and irrational tendencies known to the county, it is possible that Jankee could prove at trial that the county was negligent in failing to protect Jankee from acting out his irrational impulses.

Endnotes

1 Vincent v. Voight, 2000 WI 93, 236 Wis. 2d 588, 614 N.W.2d 388.

2 Aicher v. Wis. Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, http://www.wisbar.org/Wis3/98-2955.htm.

3 Estate of Makos v. Wis. Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997).

4 Yahnke v. Carson, 2000 WI 74, 236 Wis. 2d 257, 613 N.W.2d 102.

5 See Babrocky v. Jewel Food Co., 773 F.2d 857, 861-62 (7th Cir. 1985); Russell v. Acme Evans Co., 51 F.3d 64, 67 (7th Cir. 1995); Adelman - Tremblay v. Jewel Cos. Inc., 859 F.2d 517, 521 (7th Cir. 1988).

6 In Re Marriage of Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382.

7 Wis. Stat. § 767.26(9).

8 Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297.

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