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    Wisconsin Lawyer
    October 12, 2018

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Harmless Error – Erroneously Excluded Evidence

    State v. Monahan, 2018 WI 80 (filed 28 June 2017)

    HOLDING: The erroneous exclusion of exculpatory evidence was harmless error.

    SUMMARY: The defendant was injured and a passenger, his girlfriend, killed in a rollover accident that occurred while the vehicle was being operated at high speeds. Both were ejected from the car. The defendant had been drinking. At trial, the issue was which person had been driving. Various witnesses testified that the defendant had admitted driving the car at the time of the accident. The state’s expert testified that the defendant was the driver. The defense expert testified that he could not determine to a reasonable degree of certainty who had been driving. The defendant claimed no memory of the incident.

    The main issue concerned the admissibility of evidence from a GPS device, which the defendant contended showed a pattern of driving (high speeds) consistent with his girlfriend’s typical driving. The circuit court admitted some of the GPS evidence but excluded a key part that the defendant claimed was exculpatory.

    The jury convicted the defendant of homicide by the intoxicated use of a vehicle and other charges. In an unpublished decision, the court of appeals affirmed on harmless-error grounds after the state conceded that the exclusion of the GPS evidence was error.

    The supreme court affirmed in a majority opinion authored by Justice Gableman that held the error was harmless. After reviewing the standard for harmless error, the majority applied seven “non-exclusive factors” to the facts of record (¶ 35). Several favored the defendant, but most preponderated in the state’s favor. Especially vital were the defendant’s “numerous admissions that he was driving” (¶ 58). Although the analysis was necessarily fact intensive, the court closed with the concession that harmless error “is not subject to precise mathematical precision” (¶ 63).

    Justice R.G. Bradley filed a dissent that was joined in by Justice A.W. Bradley and Justice Abrahamson. The dissent argued that exclusion of the GPS evidence created a reasonable doubt, discounting the defendant’s admissions to driving in light of his lack of memory and serious injuries. Harmless error is for small and inconsequential defects (see ¶ 72).

    Employment Law

    University Professors – Academic Freedom

    McAdams v. Marquette Univ., 2018 WI 88 (filed 6 July 2018)

    HOLDING: The university breached its contract with the plaintiff, a tenured faculty member, when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: McAdams is a tenured faculty member at Marquette University. In 2014 he published a post on his personal blog in which he criticized a philosophy instructor who was also a graduate student, with respect to an exchange she had with a student in her theory of ethics class.

    “Dr. McAdams’ blog post said that, after [the instructor] listed a number of issues on the board, including ‘gay rights,’ she ‘airily said that “everybody agrees on this, and there is no need to discuss it”’ (¶ 7). “One of the students approached [the instructor] after class and said that the issue of gay rights should have been open for discussion. The blog post says [the instructor] replied that ‘some opinions are not appropriate, such as racist opinions, sexist opinions,’ that ‘you don't have a right in this class to make homophobic comments,’ that she would ‘take offense’ if a student opposed women serving in certain roles, that a homosexual individual would take similar offense if a student opposed gay marriage, and that ‘[i]n this class, homophobic comments, racist comments, will not be tolerated.’ The blog post says [the instructor] ‘then invited the student to drop the class’” (id.).

    “Dr. McAdams commented that [the instructor] employed ‘a tactic typical among liberals now,’ namely that ‘opinions with which they disagree are not merely wrong, and are not to be argued against on the merits, but are deemed “offensive” and need to be shut up’” (id.). The blog post contained a clickable link to the instructor’s contact information and to her own, publicly available website.

    The instructor filed a formal complaint against McAdams with the university. She later received strongly worded and offensive communications from third parties. The university suspended McAdams with pay (later identifying the blog post as the basis for the suspension); thereafter it notified him of its intent to revoke his tenure and terminate his employment because his “‘conduct clearly and substantially fails to meet the standards of personal and professional excellence that generally characterizes University faculties’” (¶ 9).

    Pursuant to university statutes, the matter was then referred to the faculty hearing committee (FHC), a body consisting solely of faculty members whose role is to advise the university president on such matters as termination of tenured faculty. Following a four-day hearing and the preparation of a lengthy report, the FHC recommended to the university president that McAdams be suspended without pay, but with benefits, for one to two semesters. The president accepted that recommendation and imposed a suspension, but he also added a requirement that McAdams write a letter that, among other things, would acknowledge that the blog post “was reckless and incompatible with the mission and values of Marquette University” and would “express deep regret for the harm suffered by our former graduate student and instructor” (¶ 14). McAdams refused to write the letter.

    McAdams commenced this action against the university, asserting that it had breached his contract by suspending him. The circuit court granted summary judgment in favor of the university. In reaching its decision the court indicated that it had deferred to the results of the university’s internal discipline procedure. McAdams appealed, and the supreme court granted his petition to bypass the court of appeals. In a majority decision authored by Justice Kelly, the supreme court reversed.

    Before reaching the merits, the majority considered the university’s argument that the supreme court, like the circuit court, should defer to the results of the university’s internal discipline procedure. The circuit court had deferred to the university’s conclusion that it had not breached McAdams’ contract for three reasons.

    First, the circuit court said McAdams agreed to be bound by the university’s discipline procedure. Second, the circuit court analogized the discipline procedure to an arbitration and concluded that it must afford the results of the university’s process the same deference courts give to arbitration awards. And third, the circuit court said it should defer to the university for the same reasons courts have historically given either “great weight” or “due weight” deference to administrative agency decisions (¶ 22).

    The supreme court declined to defer to the university’s procedure for suspending and terminating tenured faculty members. “[W]e do not defer to the University for contractual reasons because the Contract does not say the Discipline Procedure either substitutes for litigation in our courts or limits our review. We also do not afford arbitration-style deference to the University’s decision because the FHC was compositionally biased [it included a faculty member who had previously signed a letter published in the university newspaper that was critical of McAdams and his blog post], the Discipline Procedure did not (and could not) produce an authoritative decision [the FHC’s role was only advisory to the president], and the individual with the authority to resolve the dispute [the university president] was subject to no procedures whatsoever” (¶ 57).

    “Finally, we do not defer to the university in the manner we have previously deferred to administrative agencies because that practice is unsound in principle [see Tetra Tech EC Inc. v. DOR, 2018 WI 75, in which the supreme court ended the practice of deferring to administrative agencies’ conclusions of law]” (id.). (The bracketed material in the preceding quotations was added by the case-digest editors.)

    Turning to the merits of McAdams’ lawsuit, the majority concluded that “the undisputed facts show the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom” (¶ 3). Academic freedom applies to “extramural comments” – a type of expression made in a professor’s personal, not professorial, capacity.

    The parties agreed that the blog post was an extramural comment and, according to documents relied on by both parties, an extramural comment loses the protection of academic freedom if it clearly demonstrates the faculty member’s unfitness for his or her position. If it meets this threshold standard, deciding whether the extramural comment is protected should take into consideration the broader context of the faculty member’s complete record as a teacher and scholar (see ¶ 67).

    The majority concluded that “Dr. McAdams’ blog post qualifies as an extramural comment protected by the doctrine of academic freedom. The post is incapable of clearly demonstrating Dr. McAdams is unfit to serve as a professor because, although the University identified many aspects of the blog post about which it was concerned, it did not identify any particular way in which the blog post violated Dr. McAdams’ responsibilities to the institution’s students. Consequently, the blog post retains the protection it presumptively enjoyed as an extramural comment” (¶ 77). See paragraphs 73-76 regarding the university’s concerns and the court’s response thereto.

    Because the doctrine of academic freedom protects the blog post, the majority had to determine whether the university breached its contract with McAdams when it suspended him for writing the post. A tenured faculty member at Marquette can only be dismissed on a showing of absolute or discretionary cause. This case involved discretionary cause. However, under the faculty statutes, discretionary cause cannot include activity encompassed by the doctrine of academic freedom (see ¶ 79).

    “There can be no genuine dispute that the University commenced proceedings against Dr. McAdams because of his blog post …” (¶ 81). Thus, “the blog post … is a contractually-disqualified basis for discipline” (¶ 84).

    Accordingly, the supreme court reversed the judgment of the circuit court and remanded the matter with instructions to the circuit court to 1) enter judgment in favor of McAdams on his contract claims; 2) enter an order requiring the university to reinstate him with unimpaired rank, tenure, compensation, and benefits; and 3) determine damages, including back pay (see ¶ 95).

    Justice R.G. Bradley joined the majority opinion in full but also filed a concurring opinion. Justice Kelly, author of the majority opinion, also wrote a concurrence that was joined in by Justice R.G. Bradley.

    Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Justice Ziegler did not participate in this decision.

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