author: DIANE S. SYKES, J. ANN WALSH BRADLEY, J.

text:
    In re the Commitment of Lenny P. Keding: State of Wisconsin, Plaintiff-Respondent, v. Lenny P. Keding, Defendant-Appellant.
    Supreme Court

      No. 00-1700.

      Oral argument May 29, 2002.

    Decided July 3, 2002.

    2002 WI 86
    (Also reported in 646 N.W.2d 375.)

      For the defendant-appellant there were briefs and oral argument by Margaret A. Maroney, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Warren D. Weinstein, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶ 1. This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (1999-2000) on the question of whether a circuit court is required to consider alternatives to revocation before revoking a sexually violent person's supervised release under Chapter 980.

¶ 2. The court is evenly split on the answer to this question. Chief Justice Abrahamson and Justices Bablitch and Bradley would say yes; Justices Wilcox, Crooks, and the author of this opinion would say no. Justice Prosser did not participate.

¶ 3. Despite the tie vote on the legal issue, we nevertheless affirm the circuit court's order revoking Lenny Keding's supervised release under Wis. Stat. § 980.08(6m) (1999-2000), because four members of the court — Justices Bablitch, Wilcox, Crooks, and the author of this opinion — agree that the circuit court in this case did in fact inquire about whether there were any alternatives to revocation before revoking Keding's supervised release, and was advised that there were none.

I

¶ 4. Lenny Keding was convicted in 1993 of second-degree sexual assault of a child. A sentence of four years in prison was imposed and stayed in favor of probation. In 1994, Keding's probation was revoked and he was sent to prison. As he neared the end of his prison term, the State initiated Chapter 980 proceedings against him. Keding's case was tried to a jury, and he was ultimately determined to be a sexually violent person as defined by Wis. Stat. § 980.01(7). The Wood County Circuit Court, the Honorable James M. Mason, considered Keding an appropriate candidate for supervised release, but because no facility was available in Wood County, Keding was committed to the Wisconsin Resource Center (WRC).

¶ 5. Keding appealed the circuit court's order to the extent that it placed him in institutional treatment rather than on supervised release. The court of appeals reversed and remanded, holding that the circuit court had erroneously exercised its discretion by limiting its consideration of potential supervised release facilities to those in Wood County. See State v. Keding, 214 Wis. 2d 363, 571 N.W.2d 450 (Ct. App. 1997). On remand, however, the circuit court, based on reports regarding Keding's behavior at WRC, concluded that Keding was no longer an appropriate candidate for supervised release. Keding remained in institutional treatment at WRC.

¶ 6. Keding again appealed, and the court of appeals remanded for an evidentiary hearing on the issue of ineffective assistance of counsel. The parties subsequently entered into a stipulation to the effect that Keding would agree to forego his post-conviction claims and the State would agree that Keding was an appropriate candidate for supervised release. Based on the stipulation, and after some initial difficulty locating a suitable community placement for Keding, the circuit court ordered supervised release, and on January, 20, 2000, Keding was released from WRC to a duplex in Wisconsin Rapids.

¶ 7. On the day of his release, Keding reported to his supervising agent. The agent searched his belongings and found a photo album stuffed with pictures of young boys from magazines and newspapers. During the first few weeks of his supervised release, Keding met with his psychotherapist a number of times, and reported that he was fantasizing about young boys and masturbating to the fantasies. His medication was increased and Keding later reported to his psychotherapist and agent that he was no longer having such fantasies.

¶ 8. On March 13, 2000, the Department of Health and Family Services (DHFS) petitioned the. court for revocation of Keding's supervised release pursuant to Wis. Stat. § 980.08(6m). The petition alleged that Keding had violated the terms of release by contacting residents at WRC, including one with whom he had had a sexual relationship; possession of sexually explicit letters; purchasing items on a credit card while prohibited from doing so; and lying to his agent.

¶ 9. Keding admitted to three of the violations: writing letters to WRC residents, possessing sexually explicit letters, and lying to his agent. He argued, however, that the violations were not significant enough to warrant revocation of supervised release. At the revocation hearing, Keding's psychotherapist testified that in his opinion, Keding was "slipping" and was "a high risk to re-offend." After hearing argument from counsel, the circuit court inquired: "Is there an alternative to returning him to the Resource Center which the State considers appropriate or is [revocation] the only option which is available?" Keding's supervising agent replied that she had discussed the matter with a representative of DHFS and concluded that there were no community alternatives to revocation.

¶ 10. The circuit court ordered Keding's supervised release revoked, concluding that Keding had violated the terms of his supervised release by contacting residents at WRC, making unauthorized credit purchases, and lying to his agent, and that these violations were serious enough to warrant revocation. The circuit court held that "Lenny Keding has established himself as too great a risk to re-offend to be continued in supervised release. On the basis of his performance and attitude since supervised release was ordered, it's doubtful that Lenny Keding will comply with the rules of supervised release in the near future. He presents a danger to others."

¶ 11. Keding appealed, arguing that the circuit court was required to consider alternatives to revocation before making a decision to revoke supervised release under Wis. Stat. § 980.08(6m). The court of appeals certified the case to us for determination of the following question: "[Wlhether the circuit court is required to consider alternatives to revocation when a proceeding is brought to revoke the supervised release of a person committed under Wis. Stat. ch. 980, the sexual predator statute." We accepted the certification.

II

¶ 12. Keding argues that Wis. Stat. § 980.08(6m), either alone or read together with Wis. Stat. § 51.61(1)(e), requires a circuit court to consider alternatives to revocation before revoking a sexually violent person's supervised release. Alternatively, he argues that consideration of alternatives to revocation is required by due process. Finally, he argues that the record does not support the circuit court's decision to revoke his supervised release.

¶ 13. Whether a circuit court is required to consider alternatives to revocation before revoking supervised release under Wis. Stat. § 980.08(6m) is a question of law subject to independent review (in any event, neither lower court decided the question); the revocation decision itself is a discretionary one, subject to a deferential standard of review. We will uphold a circuit court's exercise of discretion if the court employs a process of reasoning based on the facts of record and reaches "a conclusion based on a logical rationale founded upon proper legal standards." State ex rel. J.H. Findorff v. Milw. Cty., 2000 WI 30, ¶ 21, 233 Wis. 2d 428, 608 N.W.2d 679 (quoting McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971)).

¶ 14. Wisconsin Statute § 980.08(6m) provides, in pertinent part:

An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5). A person on supervised release is subject to the conditions set by the court and to the rules of the department.... If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court.... The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section.

Wis. Stat. § 908.08(6m) (emphasis added).

¶ 15. The "patient's rights" statute, Wis. Stat. §51.61, is applicable to sexually violent persons committed under Ch. 980, see Wis. Stat. § 51.61(1), and provides that persons committed for treatment "have the right to the least restrictive conditions necessary to achieve the purposes" of commitment. Wis. Stat. § 51.61(1)(e). Keding argues that Wis. Stat. § 980.08(6m), on its own or read in conjunction with the patient's rights statute, requires consideration of alternatives to revocation before supervised release can be revoked.

¶ 16. Keding relies primarily on State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 217 N.W.2d 641 (1974), and Van Ermen v. DHSS, 84 Wis. 2d 57, 267 N.W.2d 17 (1978). Plotkin held that alternatives to revocation must be considered before revocation of probation could occur; Van Ermen imposed the same requirement on parole revocations. Plotkin, 63 Wis. 2d at 544-45; Van Ermen, 84 Wis. 2d at 68. Keding also argues that to avoid a violation of due process, Wis. Stat. § 980.08(6m) must be construed to require consideration of alternatives prior to revocation of supervised release.

¶ 17. In opposition, the State relies on State v. Jefferson, 163 Wis. 2d 332, 340, 471 N.W.2d 274 (Ct. App. 1991), which held that the circuit court was not required to consider alternatives to revocation before revoking the conditional release of a person committed for treatment following a finding of not guilty by reason of mental disease or defect. The State also cites Black v. Romano, 471 U.S. 606, 611 (1985), in which the United States Supreme Court declined to impose an affirmative due process requirement that alternatives to revocation be considered before probation or parole could be revoked.

¶ 18. As noted above,, the court is evenly split on the issue of whether a circuit court is required— statutorily, constitutionally, or as a matter of policy as in Plotkin and Van Ermen — to consider alternatives to revocation prior to revoking a sexually violent person's supervised release under Wis. Stat. § 980.08(6m). Accordingly, we do not resolve the certified question. We nevertheless affirm the circuit court's order revoking Keding's supervised release, because the record reflects that the court inquired about alternatives to revocation, and was advised that there were none.

¶ 19. We also reject Keding's contention that the record does not support the decision to revoke. Keding argues that the rules violations were too minor to justify revocation. We do not reverse a discretionary judgment of the circuit court where, as here, the record reflects a process of reasoning based upon facts of record and a proper standard of law. Findorff, 2000 WI 428, ¶ 21.

¶ 20. The circuit court based its decision to revoke on the three rules violations that were substantiated and the testimony of Keding's psychotherapist that Keding was a "high risk to re-offend." Although the court is divided on the question of whether the circuit court was required to consider alternatives to revocation, such consideration is certainly permissible in the circuit court's exercise of its discretion. Here, the circuit court inquired about available alternatives, and was advised that there were none.

¶ 21. While reasonable minds might differ on the issue of whether these particular rules violations were sufficiently serious to warrant revocation, we perceive no erroneous exercise of discretion. The circuit court was entitled to rely upon the psychotherapist's opinion that Keding was "slipping" and "at risk to re-offend," considered together with the rules violations, in concluding that Keding was too great a danger to maintain on supervised release. Accordingly, we affirm the circuit court's order revoking Keding's supervised release pursuant to Wis. Stat. § 980.08(6m).

By the Court. — The order of the Wood County Circuit Court is affirmed.

ANN WALSH BRADLEY, J.

¶ 22. (dissenting). In affirming the circuit court's order revoking Lenny Keding's supervised release, the majority concludes that the court considered whether there were any alternatives to revocation. I conclude that the circuit court's inquiry here was meaningless because no alternatives exist.

¶ 23. The majority states: "the record reflects that the court inquired about alternatives to revocation, and was advised that there were none." Majority op. at ¶ 18. Here is what the record reflects. First, the circuit court inquired as follows:

THE COURT: Is there an alternative to returning him to the Resource Center which the State considers appropriate or is that the only option which is available?

The State began to respond, but then deferred to Keding's probation agent. She explained as follows:

I had talked to Matt Kaesermann from the Department of Health & Family Services because he and I actually batted around the idea of — because we figured that it would come up at the hearing.
We both agree — he has no knowledge of any place that would be — that would be an alternative, because if it was a regular revocation, we could look at minimum security camps and things like that. Since this is not a revocation of the probation, he said that there really isn't any place. And since there were so many difficulties trying to get him placed in an appropriate residence, he said that, you know, he has no knowledge of anything — any living situation that would be an appropriate alternative.

¶ 24. The reason that "there were none" is because the State has failed to provide for necessary alternatives. No one in the community is willing to take a Wis. Stat. ch. 980 respondent. See State v. Sprosty, 227 Wis. 2d 316, 322, 595 N.W.2d 692 (1999); State v. Krueger, 2001 WI App 76, ¶ 2, 242 Wis. 2d 793, 626 N.W.2d 83; State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996); see also State v. Rachel, 2002 WI 81, ¶ 76, 254 Wis., 2d 215, 647 N.W.2d 762 (Bradley, J. dissenting).

¶ 25. Keding was on both ch. 980 supervised release status and probation status. It is clear from the record that had his probation status been revoked, an alternative would have been available: "minimum security camps and things like that." However, the court was unable to consider alternatives to revocation of ch. 980 supervised release because none existed.

¶ 26. Just as there were no alternatives available at the time of Keding's revocation, there were no alternatives available when he first became eligible for supervised release. At that time, a community placement was attempted in Wood County, but no suitable housing could be found. Next, another placement was attempted in a group home in Richland County, but the group home decided against it because of concern about the community's reaction. Yet another placement was attempted, this time in a group home in Jefferson County, but the group home ultimately rejected Keding because of friction with the county sheriff. Still other placements also failed.

¶ 27. Ultimately, and despite the fact that the record shows that Keding has an IQ of 72, the placement provided for his supervised release was an empty duplex in which he lived alone, subject to electronic monitoring. Even that placement was proving to be unacceptable at the time that he became subject to revocation. . .

¶ 28. It is hardly surprising, given the nature of Keding's placement, that he committed some minor violations of the rules attached to his supervised release. As a result, he was confined indefinitely to the Wisconsin Resource Center.

¶ 29. To my mind, the question this case raises is why did this ch. 980 respondent, who the circuit court deemed a proper candidate for supervised release, ultimately end up back in a secure facility? The answer is not because he broke some rules. The answer is because the State failed to devote the necessary resources to provide a viable alternative in order to properly effectuate supervised release.

¶ 30. The constitutionality of ch. 980 hinges in part upon its provisions for supervised release. I conclude that these provisions require a circuit court to consider alternatives to revocation before revoking supervised release under ch. 980. Just as the State failed to provide a viable community placement at the time of Keding's supervised release, it failed to provide any viable alternative to revocation.

¶ 31. If, as here, the State fails to ensure that viable alternatives exist, then the necessary inquiry into alternatives to revocation is fanciful, and so is the constitutionality of ch. 980 as applied to Keding. Accordingly, I respectfully dissent.

¶ 32. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON, joins this opinion.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       Wisconsin Statute § 980.01(7) provides:

        "Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness and, who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

       Upon questioning at oral argument, the State acknowledged the unavailability of the placements in Wood, Richland, and Jefferson Counties, then added: 'You forgot La Crosse and Dane Counties."

       When the landlord at the duplex informed the State that someone was about to move into the other unit in the duplex, the staff of the agency with which the State contracted to provide monitoring did not think the duplex placement would continue to be a good idea.


source: Caselaw Access Project

author: DIANE S. SYKES, J. WILLIAM A. BABLITCH, J.

license: Public Domain

text:
    Karen R. Bammert, Plaintiff-Appellant-Petitioner, v. Don's SuperValu, Inc., Defendant-Respondent.
    Supreme Court

      No. 00-2473.

      Oral argument March 5, 2002.

    Decided July 3, 2002.

    2002 WI 85
    (Also reported in 646 N.W.2d 365.)

      For the plaintiff-appellant-petitioner there were briefs by Matthew A. Biegert and Doar, Drill & Show, S.C., New Richmond, and oral argument by Brian H. Sande.

    For the defendant-respondent there was a brief by Phillip M. Steans and Phillip M. Steans, S.C., Meno-monie, and oral argument by Phillip M. Steans.

   DIANE S. SYKES, J.

¶ 1. This is an action for wrongful discharge, and it presents a single question of first-impression: can the public policy exception to the employment-at-will doctrine be invoked when an at-will employee is fired in retaliation for the actions of his or her non-employee spouse? We answer this question no.

¶ 2. Karen Bammert worked at Don's Super Valu, Inc. in Menomonie. Her husband is a Menomonie police officer. Don's is owned by Don Williams, whose wife, Nona, was arrested for drunk driving. Bammert's husband assisted in the arrest by administering a breathalyzer test. Shortly thereafter, Bammert was fired, allegedly in retaliation for her husband's participation in the arrest of her boss's wife. She sued for wrongful discharge, invoking the public policy exception to the employment-at-will doctrine. The circuit court dismissed for failure to state a claim, and the court of appeals affirmed. We accepted review.

¶ 3. The public policy exception to the employment-at-will doctrine is a narrow exception that allows at-will employees to sue for wrongful discharge if they are fired for fulfilling, or refusing to violate, a fundamental, well-defined public policy or an affirmative legal obligation established by existing law. It has never been extended to terminations in retaliation for conduct outside the employment relationship; neither has it been applied to terminations in retaliation for the conduct of someone other than the terminated employee. To allow it here would therefore expand the exception beyond its present boundaries in two significant and unprecedented ways, with no logical limiting principles.

¶ 4. Accordingly, we decline to recognize a cause of action for wrongful discharge under the public policy exception to the employment-at-will doctrine for terminations in retaliation for the conduct of a non-employee spouse. The allegations in this case, if true, make Karen Bammert's termination reprehensible, but not actionable.

HH

¶ 5. The case is before us on the circuit court's order dismissing the complaint for failure to state a claim pursuant to Wis. Stat. § 802.06(2) (1999-2000), and so we accept the facts alleged as true for purposes of our review. Strozinsky v. School Dist. of Brown Deer, 2000 WI 97, ¶ 7, 237 Wis. 2d 19, 28, 614 N.W.2d 443. Karen Bammert was employed at Don's Super Valu, Inc. in Menomonie for approximately 26 years. Her husband is a Menomonie police sergeant. Don's is owned by Don Williams, whose wife, Nona, was arrested for drunk driving on June 7, 1997. Bammert's husband participated in the drunk driving field investigation by administering a portable breathalyzer test to Nona Williams, which she failed.

¶ 6. On August 28, 1997, Bammert was fired by Don's in retaliation for her husband's participation in Nona Williams' drunk driving arrest. At the time of her termination, she was an assistant manager at the supermarket.

¶ 7. Bammert sued for wrongful discharge. Don's moved to dismiss, and the Dunn County Circuit Court, the Honorable Eric J. Wahl, dismissed the complaint for failure to. state a claim, concluding that the employment-at-will doctrine's public policy exception, announced by this court in Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983), did not apply. The court of appeals affirmed. We accepted review and now affirm.

II

¶ 8. The question of whether the circuit court properly dismissed the complaint for failure to state a claim is a question of law that we review de novo. Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 662, 571 N.W.2d 393 (1997). Bammert was an at-will employee. In general, at-will employees are terminable at will, for any reason, without cause and with no judicial remedy. Whether Bammert has an actionable claim for wrongful discharge turns on the question of whether the public policy exception to the employment-at-will doctrine can be extended to a retaliatory discharge based upon the conduct of a non-employee spouse.

¶ 9. The starting point for any wrongful discharge case is Brockmeyer. There, we adopted a public policy exception to the long-standing employment-at-will doctrine which allows an at-will employee to sue for wrongful discharge "when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law." Brockmeyer, 113 Wis. 2d at 573. Brockmeyer noted that ordinarily, an employer may discharge an at-will employee " 'for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong.'" Id. at 567 (footnote omitted).

¶ 10. The court in Brockmeyer specifically declined to engraft a broad implied duty of good faith onto the at-will employment relationship. Id. at 569. "Imposing a good faith duty to terminate would unduly restrict an employer's discretion in managing the work force" and " 'subject each discharge to judicial incursions into the amorphous concept of bad faith.'" Id. (quoting Parnar v. Americana Hotels, Inc., 652 P.2d 625, 629 (Haw. 1982)). Instead, the court concluded that "in the interests of employees, employers and the public, a narrow public policy exception" was justified, applicable only where the discharge "clearly contravenes the public welfare and gravely violates paramount requirements of public interest." Id. at 572-73.

¶ 11. In adopting the exception, the court recognized that "public policy" is too broad a concept to be sufficient as a legal standard for evaluating discharge claims, and therefore articulated several guidelines:

The public policy must be evidenced by a constitutional or statutory provision. Am employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held bable for those terminations that effectuate an unlawful end.
We intend to recognize an existing limited public policy exception. An employer may not require an employee to violate a constitutional or statutory provision with impunity. If an employee refuses to act in an unlawful manner, the employer would be violating public policy by terminating the employee for such behavior. To say that the employer could be prosecuted for criminal involvement as a result of the activities would be little solace for the discharged employee.
Courts should proceed cautiously when. making public policy determinations. No employer should be subject to suit merely because a discharged employee's conduct was praiseworthy or because the public may have derived some benefit from it.

Id. at 573-74.

¶ 12. Accordingly, to state a claim for wrongful discharge under Brockmeyer, a plaintiff must identify a constitutional, statutory, or administrative provision that clearly articulates a fundamental and well-defined public policy. Strozinsky, 2000 WI 97, ¶ 39; see also Winkelman v. Beloit Mem'l Hosp., 168 Wis. 2d 12, 23-24, 483 N.W.2d 211 (1992) (extending public policy exception to public policies found in administrative rules). Not every statutory, constitutional, or administrative provision invariably sets forth a clear public policy mandate. Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 112, 564 N.W.2d 692 (1997). The determination of whether a public policy is sufficiently fundamental and well-defined is made by reference to the content of the provision. Id. (citing Winkelman, 168 Wis. 2d at 24.) If a plaintiff identifies a public policy sufficient to trigger the exception, and further demonstrates that the termination violated that public policy, the burden shifts to the employer to show just cause for the termination. Strozinsky, 2000 WI 97, ¶ 37.

¶ 13. Our cases since Brockmeyer have cautioned against interpreting the public policy exception too broadly. The employment-at-will doctrine is a "stable fixture" of our common law, and has been since 1871. Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 112, 579 N.W.2d 217 (1998) (citing Prentiss v. Ledyard, 28 Wis. 131, 133 (1871)); see also Strozinsky, 2000 WI 97, ¶ 33. It is central to the free market economy and "serves the interests of employees as well as employers" by maximizing the freedom of both. Batteries Plus, LLC v. Mohr, 2001 WI 80, ¶¶ 13-15, 244 Wis. 2d 559, 565, 628 N.W.2d 364 (citing Mackenzie v. Miller Brewing Co., 2001 WI 23, ¶ 12, 241 Wis. 2d 700, 623 N.W.2d 739). The "antidote" to the potential for unfairness in employment-at-will "is an employment contract." Batteries Plus, 2001 WI 80, ¶ 15.

¶ 14. The prevailing general rule is that an at-will employee has no legal remedy for "an employer's unjustified decision to terminate the employment relationship." Strozinsky, 2000 WI 97, ¶ 33 (citing Brockmeyer, 113 Wis. 2d at 574). The employment-at-will doctrine thus inhibits judicial "second-guessing" of discharge decisions — even those that are unfair, unfortunate, or harsh. Strozinsky, 2000 WI 97, ¶ 33.

¶ 15. Substantive expansions of the public policy exception since Brockmeyer have been few and limited in nature. See Hausman, 214 Wis. 2d at 669 (public policy exception applies where employee is fired for fulfilling an affirmative legal or public policy duty even though there was no command from the employer to violate public policy); Winkelman, 168 Wis. 2d at 23-24 (public policy can be embodied in an administrative rule, even though Brockmeyer had referred only to the constitution and statutes); Wandry v. Bull's Eye Credit Union, 129 Wis. 2d 37, 46-47, 384 N.W.2d 325 (1986) (a discharge can violate public policy if it violates the spirit, if not the letter, of a statute).

¶ 16. More often than not, the cases have emphasized the limited scope of the exception. See, e.g., Batteries Plus, 2001 WI 80, ¶ 33 (warning that a broad interpretation of the public policy exception would "interject government agencies and the courts into traditional employment relations in a manner inconsistent with employment-at-will"); Strozinsky, 2000 WI 97, ¶ 64 (suggesting that an expansion of the exception would open a "Pandora's Box for employment litigation"); Kempfer, 211 Wis. 2d at 113 (emphasizing that the exception is "very narrow"); Hausman, 214 Wis. 2d at 667-668 (declining to expand the exception to include a broad "whistle-blower" concept); Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 142, 396 N.W.2d 167 (1986) (stressing the importance of summary judgment as a means of screening out cases that seek to expand the exception beyond its traditionally narrow scope).

¶ 17. Bammert's claim must be evaluated against this backdrop. She has identified two public policies as being implicated here: Wis. Stat. § 346.63, which prohibits the operation of a motor vehicle while under the influence of an intoxicant; and Wis. Stat. § 765.001(2), which describes the intent of the Family Code as including the promotion of the institution of marriage, for the preservation of the family, society, the state, morality, and indeed, all civilization.

¶ 18. We would be hard-pressed to say that these are not fundamental, well-established public policies. Clearly, both statutes reflect compelling public interests — one requiring the diligent pursuit and punishment of drunk drivers and the other requiring the vigorous promotion of the institution of marriage. But on the assumed facts of this case, that conclusion doesn't get us very far.

¶ 19. Bammert was not fired for her participation in the enforcement of the laws against drunk driving; she was fired for her husband's participation in the enforcement of those laws. Discharges for conduct outside of the employment relationship by someone other than the discharged employee are not actionable under present law. The public policy generally favoring the stability of marriage, while unquestionably strong, provides an insufficient basis upon which to enlarge what was meant to be, and has always been, an extremely narrow exception to employment-at-will.

¶ 20. Bammert advocates an expansion of the public policy exception far beyond that contemplated by our case law, and she cites no authority for it. Up to now, where the exception has been applied, the public policy at issue has always been vindicated by the employee himself or herself, within the context of the employment relationship. See, e.g., Strozinsky, 2000 WI 97, ¶ 2 (payroll clerk refused to violate tax withholding regulations); Hausman, 214 Wis. 2d at 659-61 (nursing home employee complied with legal obligation to prevent abuse or neglect of patients by reporting it); Kempfer, 211 Wis. 2d at 106-07 (commercial truck driver refused to drive without a commercial driver's license); Winkelman, 168 Wis. 2d at 16-18 (nurse refused to work in area of hospital for which she was not qualified); Wandry, 129 Wis. 2d at 39-40 (credit union clerk refused to comply with credit union demand for reimbursement of customer's bad check).

¶ 21. In contrast, Bammert's claim identifies a public policy completely unrelated to her employment, being enforced by someone else, who is employed elsewhere. That the "someone else" is her husband makes her discharge obviously retaliatory, and reminds us of the sometimes harsh reality of employment-at-will, but it does not provide acceptable grounds for expansion of the public policy exception beyond its present boundaries.

¶ 22. The public policy exception is rooted in the principle that "[a]n employer may not require an employee to violate a constitutional or statutory provision with impunity. If an employee refuses to act in an unlawful manner, the employer would be violating public policy by terminating the employee for such behavior." Brockmeyer, 113 Wis. 2d at 573 (emphasis added).

¶ 23. In Hausman, the most recent case to entertain any expansion of the public policy exception, we held that "[w]here the law imposes an affirmative obligation upon an employee.. . and the employee fulfills that obligation," termination for that reason violates public policy. Hausman, 214 Wis. 2d at 669. Thus, as it currently stands, the public policy exception applies to discharges in retaliation for the fulfillment of "an affirmative obligation" which the law places "upon an employee." Extending it to discharges for fulfillment of an affirmative obligation which the law places on a relative of an employee would go too far, and have no logical stopping point.

¶ 24. Line-drawing would be required but almost impossible to do in any principled way. For now, the rule would apply to police officers' spouses fired in retaliation for the officers' conduct in the line of duty — but what about the spouses of prosecutors, or judges, or DNR investigators, or IRS agents? What about discharges in retaliation for the conduct of the employee's parents, children, or- siblings? The Family Code's strong endorsement of the stability of marriage is accompanied by an equally strong endorsement of the. family as a central and fundamentally important societal institution. See Wis. Stat. § 765.001(2). If the statute is sufficient to justify application of the public policy exception to discharges in retaliation for the conduct of non-employee spouses, it is certainly sufficient to justify extension of the exception to discharges in retaliation for the conduct of non-employee parents, children, and siblings.

¶ 25. Public policy comes in many variations, is implicated in many contexts, and is carried out by many people, both publicly and privately. Once expanded in the manner argued here, the public policy exception would no longer be subject to any discernable limiting principles. It would arguably apply to retaliatory discharges based upon the conduct of any non-employee relative, for the fulfillment of or refusal to violate public policy in a wide variety of ways and in a manner completely unconnected to the employment relationship.

¶ 26. The public policy exception cannot be stretched that far and still be recognizable under Brockmeyer's limited formulation. Accordingly, we decline to recognize a cause of action for wrongful discharge under the public policy exception to the at-will employment doctrine for terminations in retaliation for the conduct of a non-employee spouse.

¶ 27. Of course, a natural sense of outrage over the facts alleged in this case brings on a desire to see the law provide a remedy, but it does not. Sergeant Bam-mert was doing his duty, for the benefit of the public, but Brockmeyer made it clear that the public policy exception does not apply where the "conduct [precipitating the discharge] was praiseworthy or because the public may have derived some benefit from it." Brockmeyer, 113 Wis. 2d at 573-74. To expand the public policy exception to fit this case would invite future applications to retaliatory discharges based upon the conduct of any close relative, conduct which is wholly unconnected to the employment relationship. This clearly would be inconsistent with Brockmeyer's intention that the public policy exception remain narrow in scope. The case was properly dismissed for failure to state a claim, and we affirm.

By the Court. — The decision of the court of appeals is affirmed.

WILLIAM A. BABLITCH, J.

¶ 28. (dissenting). Karen Bammert's (Bammert) 26 years of employment at Don's Super Valu ended by her being fired. Bammert was not fired for showing up late to work or treating customers poorly. In fact, she was not fired for any job-related reason at all.

¶ 29. She was fired for her husband's actions.

¶ 30. Her husband made no mistake either. He was a police officer. He fulfilled his obligation to society by assisting in the drunk driving arrest of Nona Williams. Nona is the spouse of Bammert's employer.

¶ 31. Retaliation for Bammert's husband's actions as a police officer was the reason Bammert was fired. In my view, this is unacceptable. There is a strong public policy in vigorous enforcement of the law. Society is not served by police officers being influenced in how they do their job because of the potential consequences of a retaliatory firing. Furthermore, extending the employment at-will doctrine to protect police officers is consistent with past precedent. Unfortunately, the majority opinion does not agree. The result is that an individual will be able to influence a police officer in the form of a retaliatory firing. For these reasons, I respectfully dissent.

¶ 32. Bammert was an at-will employee of Don's Super Valu. The general rule regarding employment relationships in Wisconsin is the at-will doctrine. The doctrine generally allows an employer to "discharge an employee 'for good cause, for no cause, or even for a cause morally wrong, without being thereby guilty of legal wrong.'" Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 567, 335 N.W.2d 834 (1983) (footnote omitted). However, Wisconsin law does allow narrow exceptions to the at-will employment doctrine for public policy reasons. The public policy exception allows the firing of employees to recover if the firing violates a well-established and important public policy. Id. at 572-73. The exception that I propose is a narrow one, and certainly is a well-established, important public policy — retaliatory firing in response to a police officer's lawful actions in his or her capacity as a police officer is actionable.

¶ 33. The exception I propose is narrow in that it covers only a police officer acting lawfully in his or her capacity as an officer. This exception will not open the floodgates to litigation, as there are very few instances when a firing could fit into this exception. And when it does, it should.

¶ 34. The public policy in the case at hand is well-established and of utmost importance. Police officers have to be able to do their jobs without being influenced by the possibility of a retaliatory firing. A police officer must be able to arrest a drunk driver without his or her spouse being fired because of the arrest. Public policy dictates the vigorous enforcement of the law no matter who is on the receiving end of the enforcement. Without an exception to the at-will doctrine for retaliatory firings against police officers acting lawfully in their capacity, this public policy will be undermined.

¶ 35. Although there is little doubt that influencing, intimidating, or bribing a police officer is against public policy, Brockmeyer dictates that public policy must be shown by a constitutional or statutory provision. Id. at 573. Wisconsin Stat. § 946.10(1) (1997-98) states:

946.10 Bribery of public officers and employes. Whoever does either of the following is guilty of a Class D felony:
(1) Whoever, with intent to influence the conduct of any public officer or public employe in relation to any matter which by law is pending or might come before the officer or employe in the officer's or employe's capacity as such officer or employe or with intent to induce the officer or employe to do or omit to do any act in violation of the officer's or employe's lawful duty transfers or promises to the officer or employe or on the officer's or employe's behalf any property or any personal advantage which the officer or employe is not authorized to receive;....

See also State v. Rosenfeld, 93 Wis. 2d. 325, 286 N.W.2d 596 (1980); Wis. Stat. §946.17 (1997-98) ("Corrupt means to influence legislation; disclosure of interest.").

¶ 36. As Wis. Stat. § 946.10 (1997-98) clearly points out, as a society we do not allow a person to bribe, intimidate, or otherwise illegally influence police officers about any pending matter or any matter that "might come before the officer". In turn, there is no reason to allow an employer to bribe, intimidate or otherwise influence a police officer in this regard. There is no reason to give an' employer a get-out-of-jail free card that is not afforded to the rest of society, simply because the employer has some retaliatory influence over a police officer. There should not be one standard of the law for employers and one standard for everyone else.

¶ 37. There is no legitimate reason to protect the conduct of this employer. In a normal circumstance, this employer could not reach the person that the employer wishes to retaliate against. In this circumstance, the employee is married to one of the officers participating in the arrest, which allows the employer to therefore reach this officer. Normally, the officer would be protected from the disgruntled arrestee, but in this case, the arrestee can reach the officer. As stated previously, we do not allow retaliation against a police officer for performing his or her duty, but in this circumstance the employer has a way around the protection of the officer. In my opinion, this loophole that allows an employer to retaliate against a police officer must be put in line with the rest of our laws, and the loophole that provides a retaliatory tool for the employer must be closed, thereby protecting police officers.

¶ 38. Furthermore, society owes its police officers a duty not to put them in the no-win position that Bammert's husband was placed in. On the one hand, he was sworn to uphold the laws of Wisconsin. On the other hand, if he keeps his oath and upholds the laws of our state, he is put in the position that the person that he assists in arresting could retaliate against him. The majority gives Bammert's husband a choice: either do your job and assist in the arrest of the drunk driver or protect your family by looking the other way. I want to eliminate this no-win situation by giving police officers the tools to do their job without the fear of retaliation. We owe such officers, like Bammert's husband, that much.

¶ 39. Moreover, the exception that I propose is consistent with past precedent. This court has recognized that compliance with an affirmative legal duty requiring action comports with a well-defined public policy, and the rationale of the public policy exception to the employment at-will doctrine. See Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 571 N.W.2.d 393 (1997). In Hausman, we gave employees that fulfilled their legal duty protection from retaliatory firing. The idea behind the exception is simply that we want people to fulfill their legal duties. In Hausman, it took the form of reporting abuse in a nursing home. We do not want people to be afraid to report nursing home abuse because they are afraid to be fired; therefore, we protect them. In the present case, we do not want a police officer to not enforce the law because the officer is afraid of a retaliatory firing. We should protect the officer, not subject him to retaliatory firing.

¶ 40. I recognize the reluctance to expand the at-will doctrine, and I too appreciate the importance of keeping with the policy of the well-defined narrow policy exception rule. We have a well-defined, extremely important policy, and we should carve out a very narrow exception that is consistent with past precedent. Therefore, I respectfully dissent.

¶ 41. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.

       All other statutory references are to the 1997-1998 version of the Wisconsin Statutes.

       Bammert had initially filed a claim with the Wisconsin Equal Rights Division of the Department of Workforce Development claiming that she had suffered employment discrimination as a result of her marital status, prohibited under Wis. Stat. §§ 111.31-111.395. Her claim was dismissed, the dismissal was affirmed by the Labor and Industry Review Commission (LIRC), and ultimately sustained on judicial review in the circuit court and the court of appeals. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 369, 606 N.W.2d 620 (Ct. App. 1999) ("Bammert I"), rev. denied, 2000 WI 21, 233 Wis. 2d 86, 609 N.W.2d 475. The court of appeals in Bammert I agreed with LIRC's conclusion that the statute protected against discrimination on the basis of marital status in general, not the status of being married to a particular person. Bammert I, 2000 WI App 28, ¶ 14. Some of the record items from the administrative and judicial proceedings in Bammert I were put into the record on the motion to dismiss in this case, by way of an affidavit from Don's counsel. Accordingly, the motion to dismiss should have been treated as a motion for summary judgment pursuant to Wis. Stat. §§ 802.06(2)(b) and 806.08. This procedural irregularity does not affect our review of the legal issue presented.

       There are various statutory exceptions to the employment-at-will doctrine. See Strozinsky v. School Dist. of Brown Deer, 2000 WI 97, ¶ 35, 237 Wis. 2d 19, 39, 614 N.W.2d 443. For instance, Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act each prohibit employers from discharging an employee on the basis of race, color, religion, sex, or national origin. Other statutes make it unlawful for employers to terminate workers because of participation in union activities, jury service, military service, or testifying at an occupational, safety, and health proceeding. Id. at ¶ 34.

        Brockmeyer also held that the cause of action for wrongful discharge pursuant to the public pobcy exception sounds in contract, not tort: "The contract action is essentially predicated on the breach of an implied provision that an employer will not discharge an employee for refusing to perform an act that violates a clear mandate of public policy." Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 575-76, 335 N.W.2d 834 (1983).

       That is, Bammert cites no authority in the employment-at-will context. She does cite NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088 (7th Cir. 1987), but that case involved an action for unfair labor practices under the National Labor Relations Act, and so its analysis is not applicable here.

       As noted above, Hausman also expressly rejected an expansive "whistle-blower" exception, even though we conceded that such an exception would better protect citizens from reprisal for carrying out " 'their civil duty of reporting infractions of rules, regulations, or the law pertaining to public health, safety, and the general welfare.'" Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 666, 571 N.W.2d 393 (1997) (quoting Palmer v. Brown, 752 P.2d 685 (Kan. 1988)). Acknowledging that adoption of "such a wide-ranging" exception would advance the public interest, we declined to do so, because "[s]uch a wide extension of existing law... would be contradictory to our established precedent." Hausman, 214 Wis. 2d at 666.

       The dissent would expand the public policy exception to cover any retaliatory discharge of a police officer's spouse, citing Wis. Stat. § 946.10, the bribery statute. That statute, however, criminalizes the transfer or promise of some item of property or personal advantage as an inducement before the public official acts. Bammert's discharge occurred after Nona Williams' drunk driving arrest. She did not cite the bribery statute, which has no application here.


author: ANN WALSH BRADLEY, J. N. PATRICK CROOKS, J.

text:
    Jeanette Ocasio, Plaintiff-Appellant-Petitioner, v. Froedtert Memorial Lutheran Hospital, Defendant-Respondent, Michael Refer, M.D., Defendant, ABC Insurance, DEF Insurance, GHI Insurance, JKL Insurance, and Wisconsin Patients Compensation Fund, Defendants-Respondents, Medical College of Wisconsin and Gary L. Swart, M.D., Defendants.
    Supreme Court

      No. 00-3056.

      Oral argument May 28, 2002.

    Decided July 3, 2002.

    2002 WI 89
    (Also reported in 646 N.W.2d 381.)

      For the plaintiff-appellant-petitioner there were briefs by Thomas A. Ogorchock and Miller & Ogor-chock, S.C., Milwaukee, and Timothy J. Aiken and Aiken & Scoptur, S.C., Milwaukee, and oral argument by Thomas A. Ogorchock and Timothy J. Aiken.

    For defendants-respondents there was a brief by Todd M. Weir, Jennifer A. Slater Carlson, and Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee, and oral argument by Jennifer A. Slater Carlson.

    An amicus curiae brief was filed by Mark E. Larson, Bradley S. Foley, and Gutglass, Erickson, Bonville,

      Seibel & Falkner, S.C., Milwaukee, on behalf of the Civil Trial Counsel of Wisconsin.
    An amicus curiae brief was filed by Randall E. Reinhardt and David M. Skoglind, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Jeanette Ocasio, seeks review of a court of appeals decision affirming a circuit court order dismissing her medical malpractice action against Froedtert Memorial Lutheran Hospital and other defendants. She asserts that the court of appeals erred by concluding that dismissal is mandated for noncompliance with the provision in Wis. Stat. § 655.44(5) (1999-2000) requiring a medical malpractice claimant to wait until the end of the statutory mediation period before filing a summons and complaint. We agree with Ocasio that failure to comply with that provision does not require as a remedy the circuit court's dismissal of the action. Accordingly, we reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion.

HH

¶ 2. The parties agree to the facts necessary to our decision in this case. Ocasio was treated at Froed-tert on October 17,1996. She alleges that she sustained an injury to her arm after a nurse negligently injected her with Benadryl, an antihistamine used to treat symptoms of allergic reactions.

¶ 3. Ocasio mailed a request for mediation to the Director of State Courts by registered mail on October 8, 1999, as required by Wis. Stat. ch. 655. Chapter 655 provides, among other things, for the establishment of a mediation system for medical malpractice actions as defined in the statute. See Wis. Stat. §§ 655.006, 655.007, and 655.42.

¶ 4. Section 655.44(5) provides that no court action may be commenced until the expiration of a 90-day mediation period. The mediation period is intended to be a "cooling off' period. Schulz v. Nienhuis, 152 Wis. 2d 434, 441, 448 N.W.2d 655 (1989).

¶ 5. On October 18, 1999, well before the end of the mediation period, Ocasio filed a summons and complaint in circuit court. No party's answer to the complaint raised the issue of the premature commencement of the action.

¶ 6. Because of scheduling problems, mediation was not held within the statutory period. Instead the mediation session was conducted on February 4, 2000, approximately three weeks outside the mediation period. A few days later, Ocasio filed an amended summons and complaint, essentially to drop a party from the action, but she otherwise repeated the originally asserted allegations against the remaining defendants.

¶ 7. On February 17, 2000, the statute of limitations expired. Subsequently, the defendant, Medical College of Wisconsin, raised the noncompliance with § 655.44(5) by asserting that the court lacked jurisdiction and competence over the defendants. Froedtert, however, made no assertion of Ocasio's noncompliance with § 655.44(5) in its answer to the amended complaint.

¶ 8. The Medical College of Wisconsin moved for dismissal on March 17, 2000, and argued that Ocasio failed to comply with § 655.44(5) by filing her action before the expiration of the statutory mediation period under Wis. Stat. § 655.465(7). Section 655.44(5) states:

Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this section and until the expiration of the mediation period under s. 655.465(7).

Froedtert then joined in the motion to dismiss, and the circuit court concluded that because Ocasio had failed to comply with § 655.44(5), her suit must be dismissed.

¶ 9. In the court of appeals, Ocasio argued that the circuit court erred in dismissing her suit because the requirement in § 655.44(5) that a claimant must wait for the mediation period to expire before filing a medical malpractice action was merely directory. In addition, she asserted that her amended pleadings rectified any problem, and that Froedtert waived any jurisdictional objections.

¶ 10. The court of appeals concluded that the expiration of the mediation period is a condition precedent to the commencement of a medical malpractice action and that noncompliance required dismissal of Ocasio's claim. Further the court opined that there was no waiver here because there can be no waiver of a court's lack of competency to proceed. Accordingly, the court of appeals affirmed the decision of the circuit court.

HH HH

¶ 11. The question we address is whether a circuit court must dismiss an action when a ch. 655 claimant fails to comply with the provision in § 655.44(5) stating that no court action may be commenced until the expiration of the mediation period under § 655.465(7). This issue of statutory interpretation presents a question of law subject to independent appellate review. Patients Comp. Fund v. Lutheran Hosp., 223 Wis. 2d 439, 454, 588 N.W.2d 35 (1999).

H-1 HH HH

¶ 12. The language in § 655.44(5) is clear and unambiguous as applied to the facts here: "Except as provided in s. 655.445, no court action may be commenced ... until the expiration of the mediation period under s. 655.465(7)." Ocasio failed to comply with this statutory provision. The question becomes what is the proper remedy.

¶ 13. Section 655.44(5) is silent as to the remedy for failure to comply with the timing provision. Thus, we look to the purpose of § 655.44(5) and previous interpretations given other timing provisions in ch. 655 in order to determine the proper remedy.

¶ 14. The purpose of ch. 655 is apparent from the statement of legislative intent in the statutes. The legislature expressly stated that the mediation system is intended to provide claimants with an "informal, inexpensive, and expedient means for resolving disputes." Wis. Stat. § 655.42(1). The informal, flexible nature of the mediation system under ch. 655 has been recognized repeatedly by this court. See Eby v. Kozarek, 153 Wis. 2d 75, 83, 450 N.W.2d 249 (1990); Schulz, 152 Wis. 2d at 439. The court also has indicated that ch. 655 is intended to provide a cooling off period regardless of whether a mediation session occurs during that period. Schulz, 152 Wis. 2d at 441.

¶ 15. This court and the court of appeals previously have concluded that dismissal for failure to comply with certain timing requirements in ch. 655 is inconsistent with the purpose of ch. 655. Eby, 153 Wis. 2d at 83; Schulz, 152 Wis. 2d at 443; Gauger v. Mueller, 149 Wis. 2d 737, 742, 439 N.W.2d 637 (Ct. App. 1989).

¶ 16. For example, in Eby, this court addressed a plaintiffs failure to comply with the statutory requirement in § 655.44's companion statute, Wis. Stat. § 655.445, that a claimant file a request for mediation within 15 days of filing an action. The court concluded that failure to comply did not require dismissal despite the use of the word "shall" in the statute. Eby, 153 Wis. 2d at 77.

¶ 17. Similarly, in Gauger, the court of appeals addressed whether the time period in § 655.465(7) was mandatory where the plaintiff failed to participate in mediation within the statutory period. 149 Wis. 2d at 739. Despite the use of the term "shah" in the statute, the court of appeals concluded that the statute was directory rather than mandatory, and that dismissal was not required. See id. at 743.

¶ 18. Finally, in Schulz, this court concluded that failure to participate in a mediation session within the statutory mediation period under § 655.465(7) does not require the circuit court to dismiss the action. 152 Wis. 2d at 436. The court noted that its decision was consistent with that of the court of appeals in Gauger. Id. at 439.

¶ 19. In all of these decisions, the courts relied on the purpose of the statute as providing for a system of informal, flexible procedures. Dismissal for failure to comply with a ch. 655 timing provision was considered inconsistent with this purpose despite the legislature's use of the term "shall." Thus, in none of these cases did the courts determine that failure to comply with the statute necessitated dismissal.

¶ 20. A conclusion that the failure to abide by the timing provision in § 655.44(5) mandates dismissal would be inconsistent with these prior holdings. All of the statutory provisions are part of the same mediation system. Each was created by the legislature to serve the same objectives, as stated in § 655.42(1).

¶ 21. Accordingly, we follow Eby, Schulz, and Gauger in determining that failure to comply with the timing provision in § 655.44(5) also does not require dismissal. We agree with this reasoning by the court in Schulz and apply it here:

If the legislature intended the result the defendants urge, it could have expressly stated that a claimant's failure to participate in a mediation session within the statutory mediation period results in dismissal. It did not do so. In the absence of express language, we are unwilling to read the harsh penalty of dismissal of the lawsuit into the mediation statute. The tenor of modern law is to avoid dismissal of cases on technical grounds and to allow adjudication on the merits.

152 Wis. 2d at 443. Holding claimants to "precise and inflexible requirements" does not comport with the legislature's stated intent in § 655.42 to make procedures in medical malpractice cases informal and flexible. Eby, 153 Wis. 2d at 83; see also Bertorello v. St. Joseph's Hosp., 685 F. Supp. 192, 195 (W.D. Wis. 1988).

¶ 22. In addition, if failure to comply with § 655.44(5) mandated dismissal, the statute would promote game playing rather than an informal, flexible procedure for dispute resolution. An interpretation of the statute to mandate dismissal would allow defendants to lie in the weeds until the statute of limitations ran, then move to dismiss based on the plaintiffs failure to comply with § 655.44(5). The statute would serve as a trap for the unwary, not the informal and flexible system intended.

¶ 23. In short, we follow precedent and the purpose of the statute to conclude that a plaintiffs failure to comply with the timing provision in § 655.44(5) does not mandate that the circuit court dismiss an action. As in Schulz, in the absence of language expressly mandating the remedy of dismissal, we are unwilling to read into the statute the requirement of such a harsh remedy for noncompliance with this mediation provision.

¶ 24. The chronology of events in this case reinforces our concern that interpreting § 655.44(5) to mandate the remedy of dismissal will result in game playing by defendants and a trap for unwary plaintiffs. Here, the defendants filed their initial answers before the statute of limitations on Ocasio's claim had run, and they made no objection to Ocasio's failure to comply with § 655.44(5). It was only after the running of the statute of limitations that the defendants raised Ocasio's failure to comply with § 655.44(5) as grounds for dismissal.

¶ 25. Having concluded that the failure to comply with the timing provision in § 655.44(5) does not mandate dismissal, we still must determine what sanction is available for failure to comply with the statute. A defendant is not without any recourse when a plaintiff fails to comply with § 655.44(5). We follow Eby in concluding that the circuit court retains discretion to determine the appropriate sanction, if any, for the failure to comply with the timing provision in § 655.44(5). See 153 Wis. 2d at 82. The sanction may range from no sanction to dismissal in the most egregious cases. Id.

IV

¶ 26. In sum, we conclude that failure to comply with the timing provision in § 655.44(5) does not require the circuit court to dismiss the ch. 655 claimant's action. We therefore reverse the court of appeals, and we remand for the circuit court to exercise its discretion in determining what sanction, if any, is appropriate for Ocasio's failure to comply with the statute.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

N. PATRICK CROOKS, J.

¶ 27. (dissenting). I cannot join the majority's opinion because I disagree that failure to comply with Wis. Stat. § 655.44(5) does not necessitate dismissal. The majority acknowledges that Ocasio failed to comply with § 655.44(5), but then concludes that the statute is silent as to the appropriate remedy, requiring the court to look to the purpose of the statute and previous interpretations given other timing provisions in ch. 655.1 respectfully dissent because this analysis is wholly unnecessary. The language in § 655.44(5) unambiguously states, "no court action may be commenced" unless two conditions are satisfied. I find this language unambiguous and instructive regarding the appropriate remedy for failure to comply with the statute. Failure to comply with § 655.44(5) necessitates dismissal since a statutory condition precedent was not met.

¶ 28. The majority first turns to the purpose of the medical malpractice mediation system and states that ch. 655 is intended to provide claimants with an "informal, inexpensive, and expedient means for resolving disputes." Majority op. at ¶ 14 (citing Wis. Stat. § 655.42(1)). After examining case law interpreting various sections of ch. 655, the majority then concludes, "in the absence of language expressly mandating the remedy of dismissal, we are unwilling to read into [§ 655.44(5)] the requirement of such a harsh remedy for noncompliance with this mediation provision." Id. at ¶ 23.1 agree with the objectives and purpose of ch. 655. I disagree, however, that § 655.44(5) does not expressly mandate the remedy of dismissal for noncompliance. Furthermore, I conclude that mandating dismissal for failure to comply with § 655.44(5) is consistent with the purpose of ch. 655.

¶ 29. The majority needs to look no further than the statute itself to determine that Wis. Stat. § 655.44(5) mandates that Ocasio's medical malpractice cause of action must be dismissed. Wisconsin Stat. § 655.44(5) states: "Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this section and until the expiration of the mediation period under s. 655.465(7)." (Emphasis added). It is undisputed that Ocasio did not follow the statutory requirements because she filed the summons and complaint 83 days before the mediation period expired. To determine the appropriate remedy for noncompliance, therefore, we need simply to interpret the meaning of this language: "no court action may be commenced."

¶ 30. By holding that Ocasio's lawsuit does not necessitate dismissal, the majority apparently concludes that the statutory language, "no court action may be commenced," is directory rather than mandatory. I disagree. Although the statute uses the word "may," which often indicates directory language, here it is coupled with "no." Using "may" in a negative sense— such as "may not" — makes the statute mandatory. For example, in Brookhouse v. State Farm Mutual Insurance, 130 Wis. 2d 166, 170, 387 N.W.2d 82 (Ct. App. 1986), the court of appeals concluded that the statutory language "may not be enlarged" is mandatory.

The distinction is not between "shall" and "may" but between "may" and "may not." "May not" is a negative term. Where statutory restrictions are couched in negative terms, they are usually held to be mandatory. Negative words in a grant of power should never be construed as directory... . Thus, where the statute says that the time for motions after verdict may not be enlarged, these are negative words regarding the grant of power. We hold that the language is mandatory.

(Citations omitted.)

¶ 31. This case presents a similar question and accordingly, I conclude that "no court action may be commenced" is mandatory. When statutory language is unambiguous, the court's duty is to give that language its ordinary meaning. Gauger v. Mueller, 149 Wis. 2d 737, 740, 439 N.W.2d 637 (Ct. App 1989). Section 655.44(5) is unambiguous and means exactly what it states. Acting under the statute at issue, Ocasio may not commence a court action until the mediation period has expired. The unambiguous language in § 655.44(5) prohibits the commencement of Ocasio's court action here; thus, failure to comply with the statute necessitates dismissal.

¶ 32. I find further support for this conclusion because the plain language of Wis. Stat. § 655.44(5) creates a condition precedent, which, when not complied with, means that the cause of action has not been properly commenced. "If an action may not be brought except upon the happening of an event, then the occurrence of that event is a condition precedent to the commencement of the action." Siemering v. Siemering, 95 Wis. 2d 111, 114, 288 N.W.2d 881 (Ct. App. 1980). The plain language in § 655.44(5) states that a cause of action may not be brought except upon the expiration of the mediation period under § 655.465(7). Expiration of the mediation period, therefore, is a condition precedent and a suit filed prematurely is void because of the failure to comply with the condition precedent.

¶ 33. Applied here, Ocasio failed to comply with the condition precedent in Wis. Stat. § 655.44(5); thus, the circuit court did not have competency to hear the case. See Colby v. Columbia County, 202 Wis. 2d 342, 362, 550 N.W.2d 124 (1996) ("A cause of action is not properly commenced when a plaintiff prematurely files a summons and complaint. ... "); McMillan-Warner Mut. Ins. v. Kauffman, 159 Wis. 2d 588, 594, 465 N.W.2d 201 (Ct. App. 1990) (noting that the court has "competency to act when a properly subscribed summons and complaint is filed with the court."). I conclude, therefore, that the circuit court properly dismissed Ocasio's medical malpractice claim since the circuit court lacked competency to proceed with the matter.

¶ 34. Contrary to the majority's approach, I further conclude that mandating dismissal for failure to comply with Wis. Stat. § 655.44(5) is consistent with the purpose of the medical malpractice mediation system. The majority claims that dismissal is a harsh penalty in a system where procedures are intended to be informal and flexible. Majority op. at ¶ 21. Again, I disagree.

¶ 35. In establishing the mediation system in ch. 655, the legislature provided for flexibility by creating two options for commencing a medical malpractice case. See Eby v. Kozarek, 153 Wis. 2d 75, 82, 450 N.W.2d 249 (1990) (describing the current statutory scheme as "two alternatives for pursuing redress"); Seaquist v. Physicians Ins. Co., 192 Wis. 2d 530, 541, 531 N.W.2d 437 (Ct. App. 1995) ("A claimant must choose one of two ways of participating in the mediation system."). First, under Wis. Stat. § 655.445 a plaintiff can initially file a claim in court and then within fifteen days file a request for mediation. Second, under § 655.44, which Ocasio relied on, a plaintiff can initially request mediation and then, after the mediation period has expired, file a claim in court. These two procedures are clearly written in the statutes to provide the flexibility that the legislature intended for medical malpractice cases. The majority's decision here unnecessarily bends those procedures to allow for further options that are contrary to the unambiguous language of § 655.44.

¶ 36. Finally, mandating dismissal for failure to comply with the condition precedent in Wis. Stat. § 655.44(5) is consistent with the legislature's intent of having a "cooling off' period. Chapter 655 provides that during the mediation period, the statutes of limitations are tolled, and furthermore, no discovery, pretrial conference, or scheduling conference is to take place until the mediation period expires. Wis. Stat. § 655.445(2) and (3). Moreover, this court discussed the mediation period in Schulz v. Nienhuis, 152 Wis. 2d 434, 448 N.W.2d 655 (1989). Now Chief Justice Abrahamson, writing for a unanimous court, described the mediation period:

Section 655.445(3) provides that "no trial, pretrial conference or scheduling conference may be held until the expiration of the mediation period under sec. 655.465(7)." Thus litigation cannot proceed until the statutory mediation period ends. The prohibition on pretrial activities applies to the entire 90-day period. No provision is made for allowing parties who complete the mediation session before the statutory mediation period expires to proceed to trial. The period for mediation under the statutes therefore seems to he a statutory "cooling off' period, apparently unrelated to whether a mediation session occurs during that period.

152 Wis. 2d at 441 (emphasis added). I acknowledge that Schulz was addressing the procedure in § 655.445, rather than § 655.44(5). Nonetheless, the purpose of the mediation period — to allow the parties to "cool off' — applies to both statutes. The legislature intended that litigation neither be initiated nor proceed during the mediation period. Consequently, the circuit court appropriately dismissed Ocasio's claim for failure to follow that statutory mandate.

¶ 37. In conclusion, ch. 655 unambiguously and explicitly provides two options for commencement of a medical malpractice claim. Ocasio did not follow either. Her actions were contrary to the unambiguous language in Wis. Stat. § 655.44(5). I agree with the circuit court and the court of appeals, therefore, that her failure to comply with § 655.44(5) mandates dismissal of her medical malpractice claim since the circuit court lacked competency to hear the case. For these reasons, I respectfully dissent.

¶ 38. I am authorized to state that Justice DIANE S. SYKES joins this dissent.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Because Ocasio sent her request for mediation by registered mail, the mediation period spanned 93 days, beginning with the date her request was mailed. Wis. Stat. § 655.465(7).

       Counsel for Ocasio stated at oral argument that this was the reason for the delay.

       The statute of limitations was tolled from the date Ocasio mailed the mediation request until 30 days after the last day of the mediation period. Wis. Stat. § 655.44(4).

       Although the court of appeals discussed competence and subject matter jurisdiction, we do not view this case as implicating those concepts. There is no question that Ocasio failed to comply with the language of the statute. The question is what remedy ensues as a result of this statutory violation, since the statute does not provide one.

       This interpretation of Wis. Stat. § 655.44(5) is consistent with this court's previous decision in Eby v. Kozarek, 153 Wis. 2d 75, 82, 450 N.W.2d 249 (1990). In that case, Justice Bablitch, writing for a unanimous court, cited § 655.44(5) and stated: "Once the request [for mediation] has been filed, the patient may not commence a court action until the mediation period under sec. 655.465(7) has expired."

       The court of appeals correctly noted that the terms "competence" and "jurisdiction" are not synonymous. Ocasio v. Froedtert Memorial Lutheran Hospital, 2001 WI App 264, ¶ 1 n.2, 248 Wis. 2d 932, 637 N.W.2d 459. In Figgs v. City of Milwaukee, 121 Wis. 2d 44, 51-52 n.6, 357 N.W.2d 548 (1984), this court specifically discussed the difference:

        [W]e point out that this court has stated that [] statutory conditions or conditions precedent have nothing to do with subject matter jurisdiction of a circuit court. They deal only with the appropriate conditions set by the legislature as a prerequisite for commencing or maintaining an action. Subject matter jurisdiction is conferred on the circuit courts by the constitution. Whether or not a proper claim has been filed, the circuit court has jurisdiction of the subject matter.
      (Internal citations omitted). Several years later this court revisited that language with approval in Gillen v. City of Neenah, 219 Wis. 2d 806, 824-825, 580 N.W.2d 628 (1998).

       As the court of appeals in this case noted, the condition precedent in Wis. Stat. § 655.44(5) is analogous to notice of claim statutes. Ocasio, 2001 WI App 264, ¶ 16 (analogizing to § 893.80 where failure of a plaintiff to give notice within the statutory time period results in the party losing the right to proceed).