author: DAVID T. PROSSER, J.

text:
    Milwaukee District Council 48, American Federation of State, County and Municipal Employees, AFSCME, AFL-CIO and Frank Jurena, Jr., Plaintiffs-Respondents-Petitioners, v. Milwaukee County and Milwaukee County Pension Board, Defendants-Appellants.
    Supreme Court

      No. 98-1126.

      Oral argument September 7, 2000.

    Decided June 15, 2001.

    2001 WI 65
    (Also reported in 627 N.W.2d 866.)

      For the plaintiffs-respondents-petitioners there were briefs by Alvin R. Ugent and Podell, Ugent, Haney & Miszewski, S.C., Milwaukee, and oral argument by Alvin R. Ugent and Robert E. Haney.

    For the defendants-appellants there was a brief and oral argument by Timothy R. Schoewe, deputy corporation counsel.
    An amicus curiae brief was filed by Jeffrey P. Sweetland and Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Milwaukee, on behalf of the Wisconsin Federation of Nurses and Health Professionals, AFT, AFL-CIO.
    An amicus curiae brief was filed by Franklyn M. Gimbel, Aaron M. Hurvitz and Gimbel, Reilly, Guerin & Brown, Milwaukee, on behalf of the Milwaukee Deputy Sheriff s Association.

      An amicus curiae brief was filed by Lucy T. Brown on behalf of the Wisconsin Education Association Council, and oral argument by Lucy T. Brown.

   DAVID T. PROSSER, J.

¶1. This is a review of an unpublished decision of the court of appeals, reversing an order of the Circuit Court for Milwaukee County, Charles F. Kahn, Jr., Judge. The case involves Milwaukee County's procedure for denying pension benefits to employees who have been discharged for "cause."

¶ 2. Under the Milwaukee County ordinances, a Milwaukee County employee has a property interest in a deferred vested pension after ten years of creditable service unless the employee is terminated for "fault or delinquency." This contingency — termination for "fault or delinquency" — nullifies the employee's pension eligibility, irrespective of the length of the employee's service.

¶ 3. The principal issue in this case relates to procedure: May Milwaukee County deny a pension to an employee who has ten years of creditable service after terminating the employee for "cause" (following a due process hearing), without also holding a due process hearing to determine whether the employee was terminated for "fault or delinquency"? A secondary issue is whether a labor organization may seek a declaratory judgment to obtain an answer to the first issue in these circumstances.

¶ 4. Because the record before this court is sparse, we proceed with some reluctance, limiting our holding to acknowledged facts. On this basis, we reverse the court of appeals and declare rights as set forth below.

¶ 5. We conclude that Milwaukee County may not deny a pension to an employee whose length of service with the county has satisfied the minimum requirement for a deferred vested pension without first affording the employee procedural due process, including a hearing to determine whether the employee is being or was terminated for "fault or delinquency," as provided in Milwaukee County Code of General Ordinances, County Employes' Retirement System § 201.24 (4.5) (1996).

BACKGROUND

¶ 6. Milwaukee County employs thousands of people in different capacities for public service work. Milwaukee District Council 48, American Federation of State, County & Municipal Employees (District Council 48 or the union), is the exclusive bargaining agent for approximately 6,000 of these public employees.

¶ 7. Most county employees, including nurses, deputy sheriffs, and the members of District Council 48's bargaining unit are "members" of the Milwaukee County Employes' Retirement System (retirement system or the system), which is the only county-operated retirement system in Wisconsin. Milwaukee County has maintained a retirement system for its employees since 1937. The enabling legislation for the system is Chapter 201, Laws of 1937. This nonstatutory session law has been amended many times since its enactment by the legislature, and today, its provisions, as amended, together with the county ordinances supplementing it, are contained in Chapter 201 of the Milwaukee County Code of General Ordinances, entitled "County Employes' Retirement System."

¶ 8. Milwaukee County's retirement system is a defined benefit plan. In Association of State Prosecutors v. Milwaukee County, 199 Wis. 2d 549, 559 n.3, 544 N.W.2d 888 (1996), the court discussed the county's system and this plan, and it explained the nature of a defined benefit plan:

[A]n actuary projects the amount necessary to fund the future payment of benefits to retirees and then calculates a single appropriate sum to be contributed to the pension fund. Defined benefit schemes benefit "vested" employees only and vested employees must usually wait until retirement age to receive their benefits.

¶ 9. Chapter 201 of the county ordinances lays out the rules determining the size of an employee's pension and the date when the employee becomes eligible to receive the benefit. The chapter also establishes the rules on "vesting." A member who began work for the county after January 1,1971, but before January 1, 1982, "shall not be eligible for a deferred vested pension if his employment is terminated prior to his completion of six (6) years of service." Milwaukee County Code of General Ordinances, County Employes' Retirement System § 201.24 (4.5) (¶ 2) (1996). A member who began employment on or after January 1, 1982, is not eligible "if his employment is terminated prior to his completion of ten (10) years of service." Id.

¶ 10. Most employees understand the concept of ten year vesting. Until they have ten years of creditable service, these employees have no right to any county pension. District Council 48 alleges, however, that many county employees do not understand that, even after they have established ten years of creditable service, they may lose their pensions if they are terminated for "fault or delinquency."

¶ 11. The controlling provision on this point comes out of the 1937 session law and now reads as follows:

A member shall be eligible for a deferred vested pension if his employment is terminated for any cause, other than fault or delinquency on his part, provided that he elects not to withdraw any part of his membership account and that his pension at age sixty (60) is at least ten dollars ($10.00) per month.

Milwaukee County Code of General Ordinances, County Employes' Retirement System §201.24 (4.5) (¶ 1) (emphasis added).

¶ 12. The 1937 session law and the Milwaukee County Ordinance draw a distinction between "cause" and "fault or delinquency," the latter being a subset of the former.

¶ 13. The word "cause" also appears in Wis. Stat. § 63.10 (1997-98), a section included in the chapter entitled "County and City Civil Service." Wisconsin Stat. § 63.10 details procedures for local governments to deal with employees who are allegedly incompetent to perform their duties or who otherwise merit demotion or dismissal. Wisconsin Stat. § 63.10(1) speaks of "cause." for discharge. "At the termination of the hearing the [local personnel] commission shall determine whether or not the charge is well founded and shall take such action by way of suspension, demotion, discharge or reinstatement, as it may deem requisite and proper under the circumstances and as its rules may provide." Wis. Stat. § 63.10(2).

¶ 14. In Milwaukee County, a superior officer (supervisor), the director of human resources, or any citizen may file charges against a county employee seeking the employee's demotion or discharge. These charges must be based on "cause." The employee is given notice of the charges and a due process hearing before the Milwaukee County Personnel Review Board. Milwaukee County Code of General Ordinances, Civil Service Rules for Milwaukee County Government, Rule VII, §§2-4 (1997).

¶ 15. According to the rules, the complaint given to the employee "shall state specifically the facts alleged to constitute cause for. . .discharge, and shall refer to section 4 of this rule under which said charges are brought." Milwaukee County Code of General Ordinances, Civil Service Rules for Milwaukee County Government, Rule VII, § 3(2) (1997).

¶ 16. Section 4 is entitled "Cause for discharge, suspension or demotion and/or reevaluation." The section reads in part:

(1) The following are declared to be cause for discharge, suspension or demotion and/or the approval of or the imposition of an employe reevaluation period as provided in rule VI.. .though charges may be based upon causes and complaints other than those here enumerated.

Milwaukee County Code of General Ordinances, Civil Service Rules for Milwaukee County Government, Rule VII, §4 (1997).

¶ 17. The section then lists 46 specific grounds amounting to "cause" for discharge or demotion, including:

(a) Theft of private or county property.
(m) Threatening, intimidating, coercing or harassing employes or supervision at any time.
(n) Making false or malicious statements, either oral or written, concerning any employe, the county or its policies.
(o) -Unexcused, unauthorized, ■ or excessive absence.
(p) Unexcused, unauthorized, or excessive tardiness.
(t) Failure or inability to perform the duties of assigned position.
(cc) Reporting to work or working while under the influence of intoxicating beverages and/or narcotics -or other drugs or having unauthorized possession of same on county premises during working hours.

Id.

¶ 18. Among other enumerated grounds for discharge or demotion under Rule VII, § 4 are:

(c) Unauthorized use of county premises.
(f) Distributing or posting handbills, pamphlets or other written or printed material in any work area without authorization.
(g) Posting, removing or tampering with county bulletin board material without authorization.
(j) Littering, creating or contributing to unsanitary or unsafe conditions on county premises.
(k) Refusing or failing to obey orders of supervisor whether written or oral.
(r) Leaving place of work during working hours without authorization, wasting time or loitering.
(s) Stopping work before designated quitting time.
(jj) Engaging in horseplay or scuffling on county premises during working hours.
(kk) Engaging in personal activities during working hours.
(rr) Removal of permanent residence to some place outside of Milwaukee County, except as specifically authorized by the commission or failure to establish permanent residence in Milwaukee County within the time limited by the commission.

Id.

¶ 19. When an employee is terminated for "cause," the employee is entitled to certiorari review in circuit court. State ex rel. Iushewitz v. Pers. Review Bd., 176 Wis. 2d 706, 710, 500 N.W.2d 634 (1993) (citing State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 N.W.2d 306 (1971)).

PROCEDURAL HISTORY

¶ 20. On December 6, 1994, District Council 48 sought a declaratory judgment, pursuant to Wis. Stat. § 806.04, against Milwaukee County and the Milwaukee County Pension Board. In its complaint, the union asserted that it had been certified by the Wisconsin Employment Relations Commission as the exclusive representative of more than 6,000 county employees with regard to their wages, hours, and working conditions, and that it was party to a contract with Milwaukee County, governing, among other things, fringe benefits (including pensions). District Council 48 stated that the collective bargaining agreement acknowledged that employees terminated with less than ten years of service were not entitled to a deferred vested pension. It claimed, however, that the county was wrongfully construing the pension ordinance and the labor agreement to mean that if an employee is terminated for "cause" after ten years of service, the employee is disqualified for a deferred vested pension.

¶ 21. The complaint states in part: "Within the past three years, several members of the Bargaining Unit represented by Plaintiff, have been terminated for an alleged 'just cause' after 10 years of service and have been denied pension benefits by said defendants."

¶ 22. District Council 48 also claimed that, normally, employees subject to discharge were given the opportunity to resign instead of having a hearing on their termination "and by so doing, [they] retain their vested pension benefits." However, "[t]hose employees who have exercised their right to a hearing and who have subsequently been terminated by the Milwaukee County Personnel Review Board, were denied a deferred vested pension."

¶ 23. District Council 48 stated that it sought a declaratory judgment to have the court "determine the rights, status and other legal relations" of members of the bargaining unit with regard to their pension benefits.

¶ 24. The case was assigned to Milwaukee County Circuit Judge Laurence C. Gram, Jr. In May 1995, Judge Gram ordered a briefing schedule.

¶ 25. With its first brief, the union argued that the county could not deprive a vested employee of a pension after ten years of service, even though the employee had been terminated for "cause." It said that pension denial was inconsistent with vesting. In addition, the union claimed a breach of its collective bargaining agreement and a misconstruction of the pension ordinance. It contended that county employees had always been allowed to quit rather than wait to see if they would be terminated. According to the union's brief:

If they do not quit, and instead wait for a hearing and a subsequent ruling, their pension benefits are lost if they are terminated by the Personnel Review Board.
No one should be required to risk the loss of 27 years of pension benefits just to have a due process hearing on the question of just cause. Some long term employees rolled the dice and had the hearing only to find that they were terminated and they lost everything.

¶ 26. The union filed portions of deposition testimony by Jac R. Amerell, Executive Director of the Milwaukee County Retirement Plan, tending to support its claim that termination for "cause" led to forfeiture of an employee's pension.

¶27. In its answer, the comity argued strenuously that District Council 48 lacked standing to bring a declaratory judgment action as "the union asserted no claim of right in its own behalf." The county also contended that the matter was not ripe for judicial determination. It also claimed that any rights to a deferred vested pension were "contingent upon leaving county service in good standing." The county said that the union had sought to change this practice through collective bargaining but had failed. The county asked the court to deny the request for declaratory relief and dismiss the case.

¶ 28. The comity filed with its answer an affidavit from Henry H. Zielinski, director of labor relations for Milwaukee County. In his affidavit, Zielinski said: "There is a long standing practice of denying deferred pension benefits to employees who do not leave county service in good standing pursuant to the ordinance adopting the state law."

¶ 29. In its reply brief, the union responded to the claim that it lacked standing, saying that it had been a plaintiff in many court actions to enforce contract provisions for the benefit of its members. "The union has an interest to see to it that its members receive all of the benefits due to them." Claiming its action was ripe, the union argued that "certain Milwaukee County employees have been severely damaged and harmed and have lost substantial pension benefits pursuant to the wrong interpretation given to the pension laws by Milwaukee County and the Pension Board." It submitted an affidavit naming two former county employees, Frank Jurena, Jr., and Ronald Pavelko, who were members of the bargaining unit before being terminated. Both men allegedly "lost all pension benefits." It also filed another affidavit naming a 27-year employee, John Kropp, allegedly in danger of being terminated and thereby losing his benefits.

¶ 30. In November 1995, Judge Gram dismissed the case on the merits, without explaining his reasoning on the record or in a written opinion. The union appealed, and in June 1996 the court of appeals reversed and remanded the cause with directions. The court of appeals reversed because the circuit court "failed to state any basis for its discretionary decision dismissing the union's complaint." Dist. Council #48 v. Milwaukee County, No. 95-3522—FT, unpublished slip op. (Wis. Ct. App. June 25, 1996).

¶ 31. On remand, the case was assigned to Judge Charles F. Kahn, Jr. The union filed an amended complaint in which Jurena was added as a named plaintiff. The union also modified its claims against the county, focusing on the lack of procedure provided by the county in terminating the pension benefits of a discharged employee, as opposed to the ultimate right of the county to deny pension benefits to a discharged employee.

¶ 32. In March 1998, Judge Kahn ruled in favor of the union and Jurena. In his written order, Judge Kahn declared "[t]hat the practice and procedure utilized by [the county] of denying pension benefits to longstanding employees terminated for cause is an unconstitutional denial of due process and denial of equal protection of the laws."

¶ 33. In October 1999, the court of appeals reversed the decision of Judge Kahn. Milwaukee Dist. Council 48 v. Milwaukee County, No. 98-1126, unpublished slip op. (Wis. Ct. App. Oct. 5, 1999). The court of appeals held that the union had failed to establish a due process violation. In addition, the court of appeals ruled that the union had waived any equal protection claim. The union appealed and we granted review.

DECLARATORY JUDGMENT

¶ 34. We must first address whether declaratory relief is appropriate in this case. The county contends that the union lacks standing because it has no claim of right in its own behalf. Furthermore, the case is not ripe because the factual record is inadequate. The county's brief states that "Frank Jurena has yet to be formally denied a pension;" and other allegations have not been established. As a result, the county reasons that any declaratory relief could not be conclusive upon the controversy submitted to the court, and a court has no business entangling itself in abstract disagreements.

¶ 35. The power of courts to issue a declaratory judgment is statutory. Miller v. Currie, 208 Wis. 199, 203, 242 N.W. 570 (1932). Wisconsin Stat. § 806.04 grants broad authority to a circuit court "to declare rights, status, and other legal relations whether or not further relief is or could be claimed."

¶ 36. A decision to grant or deny declaratory relief falls within the discretion of the circuit court. Loy v. Bunderson, 107 Wis. 2d 400, 409, 320 N.W.2d 175 (1982). The circuit court's decision to grant declaratory relief will not be overturned unless the circuit court erroneously exercised its discretion. City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992). This court will uphold a discretionary act if the circuit court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy, 107 Wis. 2d at 414-15 (citing McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971)).

¶ 37. This court has adopted standards to evaluate the appropriateness of declaratory relief. A declaratory judgment is fitting when a controversy is justiciable. Loy, 107 Wis. 2d at 410. In determining justiciability, we employ the following test:

There must exist a justiciable controversy — that is to say:
(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protectible interest.
(4) The issue involved in the controversy must be ripe for judicial determination.

Miller Brands-Milwaukee v. Case, 162 Wis. 2d 684, 694, 470 N.W.2d 290 (1991) (citing Loy, 107 Wis. 2d at 410). "If all four factors are satisfied, the controversy is 'justiciable,' and it is proper for a court to entertain an action for declaratory judgment." Id.

¶ 38. We conclude that the circuit court did not erroneously exercise its discretion in issuing declaratory relief. Both the union and Frank Jurena have interests opposed to the county insofar as pension benefits are concerned. The union is the exclusive representative of approximately 6,000 county employees, many of whom have ten years of service. The union has a duty to represent its members in discharge proceedings and in contemporary proceedings affecting their pensions, but it may not have a duty to represent them many years in the future when, as former members, they apply for pensions. The union must give its members sound advice. It must represent them well. It must also hold down unnecessary legal costs. The union has a tangible interest in knowing what the law is and what rights its members have, so that it can do its duty.

¶ 39. For his part, Frank Jurena wants a pension. Because he served as a county employee for approximately 16 years before he was terminated for "cause," he is vested in the sense that he completed enough years of creditable service to earn a pension — unless he was specifically terminated for "fault or delinquency." Jurena has a protectible property interest, and he asserts a right to make his claim in the proper forum.

¶ 40. On the facts of this case, both Jurena and the union have standing to seek a declaratory judgment.

¶ 41. This suit is also ripe for judicial determination. By definition, the ripeness required in a declaratory judgment is different from the ripeness required in other actions. For example, in a declaratory action involving a forfeiture statute, "[pjotential defendants may seek a construction of a statute or a test of its constitutional validity without subjecting themselves to forfeitures or prosecution." State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 674, 239 N.W.2d 313 (1976). Thus, a plaintiff seeking declaratory judgment need not actually suffer an injury before seeking relief under Wis. Stat. § 806.04(2). Nonetheless, a matter is not ripe unless the facts are sufficiently developed to allow a conclusive adjudication. Id.

¶ 42. The county argues that the matter is not ripe because it has not officially denied Jurena a pension. The county also maintains that the controversy is not ripe because a pension cannot vest under its agreement with the employees before an employee has completed honorable service for the county (i.e., no "fault or delinquency" during service). These arguments fail.

¶ 43. The controversy is ripe because the union seeks a declaration of law concerning the procedural due process available to an employee to contest termination of employment and loss of pension when the determination of one may lead automatically to the determination of the other. The due process at issue is the process afforded to test whether the county has presented the proper grounds and taken the necessary steps to deny a vested employee a pension. This is a prelude to the ultimate question of whether a so-called "vested" employee may be denied a pension.

¶ 44. An employee need not have been denied pension benefits to satisfy the ripeness required in this type of action. See id. at 674. The union seeks a declaration about the decision-making process in which an employee is discharged and then denied benefits. Following his discharge, Jurena wants to know his rights.

¶ 45. The union's standing and the ripeness of this controversy are very much related. The union does not stand wholly apart from its members. In theory, thousands of the union's vested members could have filed suit as individuals seeking a declaration of their due process rights in connection with the potential denial of their pensions. Instead, they took action collectively through the union. On these facts, the union's participation is a logical extension of its normal activities of representing employee members in regard to wages, hours, and working conditions. We see no reason why the union cannot bring a declaratory judgment action to gain "relief from uncertainty and insecurity with respect to rights, status and other legal relations" of its members on such a broad and important legal issue. Wis. Stat. § 806.04(12).

¶ 46. We note that the vast maj ority of individual employees will be in the same position as the union with regard to ripeness. Very few individuals are in a position to assert that their termination for "cause" is imminent and that their loss of pension is imminent. Waiting until both events actually occur would defeat the purpose of the declaratory judgment statute. In Loy, 107 Wis. 2d at 413, the court quotes from Borchard,

Declaratory Judgments:

Perhaps the principal contribution that the declaratory judgment has made to the philosophy of procedure is to make it clear that a controversy as to legal rights is as fully determinable before as it is after one or the other party has acted on his own view of his rights and perhaps irretrievably shattered the status quo.

Edwin Borchard, Declaratory Judgments 58 (2d ed. 1941).

¶ 47. Applying these principles, we think judicial economy and common sense dictate that the union is authorized to seek a declaration of rights.

DUE PROCESS OF LAW

¶ 48. The Fourteenth Amendment to the United States Constitution protects life, liberty, and property from government impairment. No state or political subdivision may deprive any person of life, liberty or property without due process of law. "An essential principle of due process is that a deprivation of. . .property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). "The fundamental requisite of due process of law is the opportunity to be heard." Goldberg v. Kelly, 397 U.S. 254, 267 (1970); Grannis v. Ordean, 234 U.S. 385, 394 (1914). This opportunity to be heard" 'must be at a meaningful time and in a meaningful manner.'" Goldberg, 397 U.S. at 267 (quoting Armstrong v. Manzo, 380 U.S. 545 (1965)).

¶ 49. The type of hearing required depends upon the nature of the case, Armstrong, 380 U.S. at 550, and the hearing "must be tailored to the capacities and circumstances of those who are to be heard." Goldberg, 397 U.S. at 268-69." '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.'" Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

¶ 50. The "property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571-72 (1972). "Property interests, of course, are not created by the [United States] Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577.

¶ 51. We have said that the Fourteenth Amendment protects the property interests of state employees, Arneson v. Jezwinski, 225 Wis. 2d 371, 393, 592 N.W.2d 606 (1999), and county employees, Stas v. Milwaukee County Civil Service Commission, 75 Wis. 2d 465, 470, 249 N.W.2d 764 (1977), in their employment. Due process in this context means that an employee subject to discharge is " 'entitled to the full panoply of due-process protections, the minimum requirements of which include a timely and adequate notice of the reasons for the discharge, an impartial decisionmaker, and the opportunity to confront and cross examine adverse witnesses.’" Stas, 75 Wis. 2d at 470-71 (quoting State ex rel. DeLuca v. Common Coun- oil of City of Franklin, 72 Wis. 2d 672, 679, 242 N.W.2d 689 (1976)).

¶ 52. As noted above, Wis. Stat. § 63.10 also imposes procedural mandates, including a hearing requirement, when the county attempts to discharge an employee. Wis. Stat. § 63.10(1) and (2). There is no dispute that county employees who have passed their probationary period have a protectible property interest in their jobs because state law precludes their discharge without "cause.”

¶ 53. Milwaukee County employees also have a property interest in a pension after they have earned ten years of creditable service. Ass'n of State Prosecutors, 199 Wis. 2d at 552, 560. This property interest is distinct and different from their interest in employment. According to the county ordinance, the Milwaukee County Pension Board is not free to deny an employee a deferred vested pension once the employee has become eligible to receive it unless the employee has been terminated for "fault or delinquency."

¶ 54. Termination of an employee for "cause" is not enough to deprive the employee of a vested pension. Termination for "fault or delinquency" is the statutory prerequisite for denial of a vested pension.

¶ 55. Inasmuch as vested employees have a pro-tectible property interest in their pensions, they may not be deprived of their pensions without due process of law. This requires notice and a hearing.

¶ 56. We have examined the ordinances and rules of Milwaukee County related to the matters at issue. The rules of the Milwaukee County Pension Board are quite specific. Rule 806, "Termination for fault or delinquency," provides:

Pursuant to section 4.5 of the Retirement Act, a member forfeits his pension if he terminates employment with the county for fault or delinquency on his part. For purposes of section 4.5 of the Retirement Act, "fault or delinquency" shall be determined solely by the personnel review board of the county. The pension board shall rely on the determination of "fault or delinquency" made by the personnel review board and shall not independently or separately determine whether a member's termination resulted from fault or delinquency. The pension board shall rely on the determination made by the personnel review board of the county because it believes the personnel review board is operating appropriately. The pension board may periodically review the operation of the personnel review board to determine whether it continues to operate appropriately.

Milwaukee County Code of General Ordinances, Rules of the Employes' Retirement System, Rule 806 (1997).

¶ 57. Rule 806 assumes that the Milwaukee County Personnel Review Board will make a finding of "fault or delinquency." However, we have not discovered any county ordinance or rule explaining what "fault or delinquency" is, or how the Personnel Review Board should make its determination. It is not clear whether the board actually makes this determination.

¶ 58. Looking at Civil Service Rule VII, § 4, we find 46 enumerated grounds of "cause" to discharge a county employee. Milwaukee County Code of General Ordinances, Civil Service Rules for Milwaukee County Government, Rule VII, § 4 (1997). The rule does not clarify whether all 46 grounds, plus others that might serve as the basis for discharge, constitute "fault or delinquency," or whether the Personnel Review Board draws consistent distinctions among the 46 grounds, or whether the board applies the various grounds differently in different cases. Id. If the Personnel Review Board were to regard all 46 grounds for discharge as "fault or delinquency," then it would be saying that a county employee could lose his or her vested pension for tampering with county bulletin board material, stopping work before designated quitting time, horseplay on county premises during working hours, and making malicious statements about county policies.

¶ 59. The record indicates, through the deposition testimony of Jac R. Amerell, that vested employees can be terminated for inability to perform the duties of their assigned position even though the inability stems from a non-work related disability. In these cases, they may still lose their pensions if they do not have 15 years of creditable service. "[M]ore often than not it's my belief that they lose their pension right" in this situation, he said. Is inability to perform duties because of a non-work related disability "fault or delinquency" as opposed to "cause"?

¶ 60. Amerell manages the county's pension system. In his deposition, he described a letter he had written to Ronald J. Pavelko, an employee discharged for "cause." Pavelko had requested a form so that he could apply for pension benefits. Amerell wrote back that the discharged employee was not "qualified" for a pension. Amerell admitted the reason Pavelko was denied pension application paperwork was that he had been discharged for "cause." Amerell did not testify that any additional consideration, namely "fault or delinquency," played a role in his decision to refuse pension paperwork to the discharged employee.

¶ 61. The record shows that Milwaukee County has failed to establish clear rules on "fault or delinquency." It has consistently failed to make individual assessments of whether employee discharges rise to the level of "fault or delinquency." It has failed to provide hearings at which employees may be heard on this issue at a meaningful time in a meaningful manner. It has failed to make evidentiary-based findings that are capable of being reviewed by certiorari in circuit court. In short, the county has failed to give due process consideration to the termination of pension rights based upon "fault or delinquency."

¶ 62. We conclude that Milwaukee County may not deny a pension to an employee who has satisfied the minimum requirements of creditable service for a deferred vested pension without first affording the employee the procedural due process of a hearing to determine whether the employee is being or was terminated for "fault or delinquency." The hearing must be preceded by fair notice. The county must also establish standards for "fault or delinquency." The determination of "fault or delinquency" must provide an evidentiary record capable of review by certiorari in circuit court.

¶ 63. We are not holding or implying that the county must hold a completely separate due process hearing for the denial of a pension. The requirements of procedural due process are flexible enough, Mathews, 424 U.S. at 334, that the county may offer a hearing that considers both "cause" for discharge and "fault or delinquency." We do find, however, that the county must provide a hearing of some type that considers the impact of the discharge on pension benefits. The county must allow the discharged employee to tell "his [or her] side of the story." Cleveland Bd. of Educ., 470 U.S. at 546.

¶ 64. Our holding today is confined to procedural rights. We are neither asked nor required to define the exact interest that a county employee has in a pension after the employee has worked the minimum number of years to qualify for a pension. We find merely that such an employee has a property interest in his or her pension that requires due process before the county can declare the employee ineligible for the pension as a result of discharge.

¶ 65. We decline to rule on whether the 1937 session law and the ordinance place unreasonable pressure on employees to give up their rights for a due process hearing on employment termination to preserve their eligibility for a future pension. This question was insufficiently briefed and argued to this court to require a response.

CONCLUSION

¶ 66. The record is sparse but sufficient to permit a declaration that Milwaukee County may not deny a pension to an employee who meets the minimum requirements of creditable service for a deferred vested pension without first affording the employee procedural due process, including a hearing to determine whether the employee is being or was terminated for "fault or delinquency." Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for entry of a declaratory order consistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

        Milwaukee Dist. Council 48 v. Milwaukee County, No. 98-1126, unpublished slip op. (Wis. Ct. App. Oct. 5, 1999).

       Chapter 201, Laws of 1937, § 6(b) refers to "a member who is rémoved or otherwise involuntarily separated from service for any cause other than fault or delinquency on his part."

       All references to the Wisconsin Statutes are to the 1997-98 volumes unless otherwise noted.

       Wisconsin Stat. § 59.52(8)(b) provides a "just cause" standard for law enforcement employees:

        A law enforcement employee of the county may not be suspended, demoted, dismissed or suspended and demoted by the civil service commission or by the board, based either on its own investigation or on charges filed by the sheriff, unless the commission or board determines whether there is just cause, as described in this paragraph, to sustain the charges.

       The union has failed to address that portion of the circuit court's ruling that declared the county's practices violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. As the court of appeals found, we also find that the union has waived any equal protection claim.

       Wisconsin Stat. § 806.04, the Uniform Declaratory Judgments Act, provides in pertinent part:
      (1) SCOPE. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03 (1).
      (2) POWER TO CONSTRUE, ETC. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that the party holds a license or permit under such statutes or ordinances.
      (3) BEFORE BREACH. A contract may be construed either before or after there has been a breach thereof.
      (5) ENUMERATION NOT EXCLUSIVE. The enumeration in subs. (2), (3) and (4) does not limit or restrict the exercise of the general powers conferred in sub. (1) in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
      (6) DISCRETIONARY. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
      (8) SUPPLEMENTAL RELIEF. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not he granted forthwith.
      (11) PARTIES. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would he affected by the declaration, and no declaration may prejudice the right of persons not parties to the proceeding....
      (12) CONSTRUCTION. This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.

       There are two additional reasons to support our recognition of the union's standing in this case. First, Wisconsin Stat. § 806.04 "is to be liberally construed and administered." Wis. Stat. § 806.04(12). Second, standing is generally a matter of judicial policy rather than a jurisdictional prerequisite. Wis. Bankers Ass'n v. Mut. Sav. & Loan, 96 Wis. 2d 438, 444 n.1, 291 N.W.2d 869 (1980).

       The United States Supreme Court has developed a three-part standing test for associational litigants, including unions, in litigation of federal issues. UAW v. Brock, 477 U.S. 274, 282 (1986). The test allows an association
      to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

        Brock, 477 U.S. at 282 (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). This test, however, limits the power of the federal judiciary, in part to comply with Article III, Section 2 of the United States Constitution. United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996). We do not apply this test here but cite it as persuasive authority for the proposition we adopt on the facts of this case; "[I]n certain circumstances, particular relationships. . .are sufficient to rebut the background presumption.. .that litigants may not assert the rights of absent third parties." Id. at 557.

       The Fourteenth Amendment to the United States Constitution provides in relevant part: "No State shall make or enforce any law which shall. . .deprive any person of life, liberty, or property, without due process of law."

      See also Wis. Stat. § 59.52(8)(b).

        Waste Mgmt. of Wis., Inc. v. Wis. Dep't of Natural Resources, 128 Wis. 2d 59, 78, 381 N.W.2d 318 (1986) (citing Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 313 (1950)).

        State ex rel. Harris v. Annuity & Pension Bd., 87 Wis. 2d 646, 651-52, 275 N.W.2d 668 (1979).


source: Caselaw Access Project

author: WILLIAM A. BABLITCH, J.

license: Public Domain

text:
    Charles Johnson and Karen Johnson, Plaintiffs-Appellants-Petitioners, v. Rogers Memorial Hospital, Inc., Heartland Counseling Services, Defendants-Respondents, South Street Clinic, Defendant, Kay Phillips, Ph.D., Jeff Hollowell and Tim Reisenauer, Defendants-Respondents, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, JKL Insurance Company, MNO Insurance Company and PQR Insurance Company, Defendants, Wisconsin Patients Compensation Fund, Defendant-Respondent.
    Supreme Court

      No. 98-0445.

      Oral argument April 6, 2001.

    Decided June 19, 2001.

    2001 WI 68
    (Also reported in 627 N.W.2d 890.)

      For plaintiffs-appellants-petitioners there were briefs by William Smoler and Smoler Law Office, LLC, Madison, and Gregory P. Seibold and Murphy & Desmond, S.C., Madison, and oral argument by William Smoler and Gregory P. Seibold.

    For defendant-respondent, Rogers Memorial Hospital, Inc., there was a brief by Lori Gendelman, Jeffrey J.P. Conta and Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee, and oral argument by Lori Gendelman.

    For defendant-respondent, Kay Phillips, Ph.D., there was a brief by David E. McFarlane and Bell, Gierhart & Moore, S.C., Madison, and oral argument by David E. McFarlane.

    For defendants-respondents, Jeff Hollowell and Tim Reisenauer, there was a brief by Bradway A. Lid-dle, Jr., Mario D. Mendoza and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Mario D. Mendoza.

   WILLIAM A. BABLITCH, J.

¶ 1. Charles and Karen Johnson (Johnsons) seek review of two determinations by the court of appeals relating to their claims for personal injuries resulting from the alleged negligent treatment of their adult daughter, Charlotte, by various therapists and a hospital. The court first determined that the Johnsons' claims of negligence and negligent infliction of emotional distress against three therapists for implanting false memories of sexual and physical abuse in their child must be dismissed based on public policy concerns of confidentiality in the therapist-patient relationship. Second, the court concluded that the Johnsons' breach of contract claim against the hospital must also be dismissed based on the same public policy concerns. The Johnsons contend that these determinations were based on an insufficient factual record. We agree. Further development of the factual record is necessary before a decision can be made on these issues. We also review and reject the hospital's arguments that the Johnsons lack standing to sue the hospital and that their claim against the hospital is barred by the statute of limitations. Accordingly, we reverse the court of appeals' decision and remand for further proceedings.

hH

¶ 2. On May 29, 1996, the Johnsons filed a complaint against the defendants, alleging the following facts. Beginning in the late summer or fall of 1991, Charlotte began psychotherapy treatment with defendant Kay Phillips (Phillips) and defendant Heartland Counseling Services. Shortly thereafter, Phillips referred Charlotte to defendant Rogers Memorial Hospital (RMH) for treatment in specialty programs that focused on eating disorders, addictive disorders, and sexual and physical abuse issues. Charlotte was admitted to RMH as an inpatient in early November 1991. The Johnsons entered into a financial agreement with RMH in which they agreed to pay for this inpatient care.

¶ 3. At RMH, Charlotte received treatment from defendants Jeff Hollowell (Hollowell) and Tim Reisenauer (Reisenauer). During this treatment, Charlotte developed the belief that her parents had sexually and physically abused her as a young child. Charlotte remained as an inpatient at RMH until November 29, 1991, but continued to receive treatment from Hollo-well and Reisenauer after that time as an outpatient. She confronted her father about this abuse on November 22,1991, and confronted her mother on October 28, 1993. Both confrontations occurred during meetings where Charlotte's therapists were present, although it is unclear who was present, including which therapists.

¶ 4. The Johnsons denied that such abuse occurred. Nevertheless, Charlotte terminated her relationship with her parents. The Johnsons were unsuccessful in reestablishing any relationship with her. Charlotte continues to believe that her parents abused her.

¶ 5. In their complaint, the Johnsons alleged three primary causes of action. First, they alleged negligence against Phillips, Hollowell, and Reisenauer (therapists) for their treatment of Charlotte. They claimed that the treatment provided by the therapists resulted in Charlotte's false beliefs that she had been abused and that their continued treatment of Charlotte reinforced these false beliefs. The Johnsons also contended that the therapists failed or refused to counsel Charlotte to determine the validity of these memories despite being informed by the Johnsons that these beliefs were false. Under this cause of action, they sought the following damages: past and future mental and emotional pain and suffering, past and future loss of enjoyment of life, loss of the relationship of Charlotte, and loss of funds paid for the negligent treatment.

¶ 6. A second cause of action alleged negligent infliction of emotional distress against the therapists. Within this claim, the Johnsons asserted that the therapists' negligent treatment of Charlotte, which included the confrontation meetings, caused them to suffer severe emotional damages.

¶ 7. A third cause of action alleged a breach of contract against RMH for failing to provide appropriate treatment to Charlotte pursuant to its financial agreement with the Johnsons. The Johnsons sought the following damages under this cause of action: emotional pain and suffering, past and future loss of enjoyment of life, loss of the relationship with Charlotte, and loss of payments made for inpatient care.

¶ 8. The complaint also alleged that RMH was liable for the conduct of Hollowell and Reisenauer under an ostensible agency theory. The Johnsons also sought recovery from various unnamed insurance companies for coverage provided to the defendants and from the Wisconsin Patients Compensation Fund for coverage provided to RMH.

¶ 9. The defendants answered and denied the allegations. A series of motions to dismiss followed. In her motion, Phillips argued that the complaint failed to state a claim upon which relief could be granted and that the applicable statute of limitations barred the claim. Hollowell and Reisenauer presented similar arguments in a separate motion. In its motion, RMH alleged a failure to state a claim, a failure to comply with the statute of limitations, and a lack of standing to sue under Wis. Stat. Ch. 655 (1997-98). RMH's motion also sought summary judgment in the alternative.

¶ 10. The Dane County Circuit Court, the Honorable Daniel R. Moeser, dismissed the complaint. The court concluded that the claims against the therapists failed to state claims upon which relief could be granted and that the claims against RMH required dismissal because the Johnsons did not have standing to sue RMH. The court also noted that the Johnsons' claims against RMH were barred by the statute of limitations.

¶ 11. The Johnsons appealed. While their appeal was pending, we decided Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999). Sawyer directly addressed an issue central to the Johnsons' case, that is, whether the parents of an adult child can maintain a third-party professional negligence claim against a therapist when the therapist's treatment resulted in the implanting of alleged false memories of abuse in the child. Id. at 129, 136. Applying public policy concerns from Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988), as well as collateral burdens to a therapist-patient relationship that are presented by such claims, we concluded that the Sawyers' claim was not prohibited by such policy concerns. Sawyer, 227 Wis. 2d at 142-151.

¶ 12. After our decision in Sawyer, the court of appeals affirmed the circuit court's decision to dismiss the Johnsons' complaint. See Johnson v. Rogers Mem'l Hosp., 2000 WI App 166, ¶ 20, 238 Wis. 2d 227, 616 N.W.2d 903. In its decision, the court noted that the Johnsons' claims presented a significant collateral burden on confidentiality within the therapist-patient relationship that was not present in Sawyer, and this burden precluded the Johnsons from continuing their claims. Id. at ¶¶ 17-18. In particular, unlike Sawyer, where the plaintiff parents, as administrators of their deceased child's estate, had custody of the child's medical records, neither the Johnsons nor the therapists had any such access. Id. at ¶¶ 11, 17. Charlotte, the court noted, had neither waived her rights to the confidentiality to her medical records nor relinquished any privilege to the privacy of her communications with her therapists. Id. at ¶ 11.

¶ 13. Because the court of appeals believed that these medical records and confidential communications were necessary to the fair resolution of the Johnsons' claims, it precluded the Johnsons from pursuing their claims "in order to further the public policy of protecting the confidentiality of the therapist-patient relationship." Id. at ¶ 18. The court also dismissed the Johnsons' claims against RMH, concluding that the breach of contract claim was nothing more than a malpractice claim that was similarly precluded because it too relied on Charlotte's confidential communications and health care records. Id. at ¶ 19.

I — I

¶ 14. Our review is limited to the following three issues: (1) whether the Johnsons' claims against the therapists must be dismissed in light of the potential burden of such claims on confidentiality in the therapist-patient relationship; (2) whether the Johnsons have standing to sue RMH in light of Wis. Stat. Ch. 655 and may sustain this claim despite any public policy concerns; and (3) whether the Johnsons' claim against RMH is barred by the statute of limitations.

¶ 15. We first review whether the Johnsons' negligence and negligent, infliction of emotional distress claims against the therapists state claims upon which relief may be granted. The question of whether a complaint states a claim is one of law. Koestler v. Pollard, 162 Wis. 2d 797, 802, 471 N.W.2d 7 (1991). We apply a de novo standard when reviewing such decisions. Elections Bd. v. WMC, 227 Wis. 2d 650, 660, 597 N.W.2d 721 (1999). We proceed in the following manner in determining whether dismissal is warranted:

We review the complaint in the same manner as the circuit court and the court of appeals, benefitting from their analyses and opinions. Pleadings are to be liberally construed, and a claim will be dismissed only if "it is quite clear that under no conditions can the plaintiff recover." The complaint must be viewed most favorably to the plaintiff. Accepting the-allegations as true, we must decide whether a plaintiff has stated a claim upon which relief may be granted.

Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 635-36, 517 N.W.2d 432 (1994) (citation omitted).

¶ 16. The court of appeals determined that dismissal was required based on public policy considerations. Application of such considerations "is a function solely of the court." Id. at 654. As a result, the court may make its public policy determination based solely on the pleadings without proceeding to trial. Id. at 654-55. However, if the issues are complex or the facts not fully presented, it may be desirable for the court to allow further discovery or even a full trial before making its determination. See id. at 655. In this case, the facts of record do not fully present the question of public policy. As a result, we conclude that the court of appeals should not have decided this issue based on the present record.

¶ 17. In Sawyer, we permitted the plaintiffs to move forward on a claim of professional negligence against two therapists to recover for direct injuries resulting from treatment of their adult child that lead to false memories of abuse. Sawyer, 227 Wis. 2d at 137-51. We also permitted the plaintiffs to continue with a claim of negligent infliction of emotional distress against one therapist. Id. at 154-58. The defendants argue that Sawyer does not control this case because, in this case, the claim affects a collateral burden on the therapist-patient relationship, which was addressed but did not apply in Sawyer. See id. at 150. The burden involved the importance of confidentiality in the therapist-patient relationship and the concerns that such claims would jeopardize confidentiality within this relationship and that confidentiality would prevent therapists from being able to adequately defend themselves from such actions. Id. The defendants only focus on these concerns as distinguishing characteristics between this case and Sawyer. The parties have provided detailed analyses on these concerns.

¶ 18. Indeed, these concerns are significant and may prevent a claim from moving forward in some instances. Based on the current record, however, we are unable to determine whether the Johnsons' claims will place a burden on such confidentiality. The facts of record do not reveal whether Charlotte has waived her rights concerning confidentiality of her health care records or her privilege to confidential communications with her therapists. See Wis. Stat. §§ 146.82, 905.04. Further, we are unable to determine whether any privilege applies based on the fact that the Johnsons attended meetings where this therapy method was revealed. See § 905.04(l)(b). In addition, the Johnsons have raised an issue of fact as to whether the privilege applies to the therapists in this case. See § 905.04(l)(e).

¶ 19. Accordingly, we conclude that a determination on whether the Johnsons' claims should be dismissed is premature. As a result, the defendants' motions to dismiss on the claims against the therapists must be denied. This conclusion applies equally to the Johnsons' claims against RMH under their ostensible agency theory.

¶ 20. The second issue presented is whether the Johnsons have standing to bring their breach of contract claim against RMH and may pursue this claim in view of public policy considerations. RMH argues that the Johnsons lack standing because Wis. Stat. Ch. 655, Wisconsin's health care liability law, provides the exclusive remedy for such claims against health care providers and because the Johnsons do not fall within the list of individuals who may bring such a claim under the chapter. We conclude, however, that the question is more appropriately characterized as whether the Johnsons have stated a viable cause of action, rather than whether they have standing to sue. As noted by the court of appeals, this action, although labeled as a contract claim, is actually an action for professional negligence because it is based on whether RMH provided appropriate treatment to Charlotte. We specifically allowed such claims to move forward outside the realm of chapter 655 in Sawyer. See also Schuster, 144 Wis. 2d 223. Accordingly, chapter 655 is not the exclusive remedy for such claims, like the John-sons' claim, brought consistent with our holding in Sawyer. The Johnsons may proceed with their claim. We note that, similar to the claims against the therapists, this claim also presents concerns surrounding the burden it may place on confidentiality in the therapist-patient relationship. However, again, based on the current insufficient state of the record, we decline to make a determination on whether this concern requires dismissal.

¶ 21. The final question on review is whether the statute of limitations barred the Johnsons' claim against RMH because any negligent treatment provided by RMH occurred more than three years prior to the filing of the complaint in violation of Wis. Stat. § 893.55(1). We conclude, however, that this issue also cannot be determined based on the factual record present at this time. The complaint is unclear as to whether Charlotte's treatment with RMH extended beyond her inpatient treatment during November 1991. As Judge Dykman noted in his dissent at the court of appeals in this case, a reasonable inference can be drawn from the complaint that RMH provided care as late as October 28,1993. See Johnson, 2000 WI App 166 at ¶24 (Dykman, P.J., dissenting). The factual record must be developed on this issue before a determination on the statute of limitations can be made. In turn, the defendants' motions to dismiss on the claim against RMH must also be denied.

III

¶ 22. In sum, in view of the current state of the record, we conclude that the Johnsons have presented claims upon which relief may be granted. The record is insufficient for us to determine whether public policy considerations bar the Johnsons' claims. Further, the factual record is insufficient for us to determine whether the statute of limitations bars the Johnsons' claim against RMH. As a result, we reverse the court of appeals' decision, which upheld the circuit court's dismissal of the complaint.

By the Court. — The court of appeals' decision is reversed, and the cause is remanded to the circuit court.

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       Although not filing a separate motion to dismiss, Wisconsin Patients Compensation Fund joined the arguments of the movants. South Street Clinic was dismissed prior to the circuit court's decision on these motions.

       RMH contends that, because it moved for summary judgment, we may review this case under summary judgment standards. However, because the circuit court decided this case as a motion to dismiss based solely on the pleadings, we address the defendants' motions in a similar manner.

       The court of appeals concluded, and the Johnsons concede, that, to the extent the Johnsons' claims allege injuries related to the loss of society and companionship of an adult child, the Johnsons may not recover for such injuries. See Johnson v. Rogers Mem'l Hosp., 2000 WI App 166, ¶ 7 n. 3, 238 Wis. 2d 227, 616 N.W.2d 903 (citing Estate of Wells v. Mount Sinai Med. Ctr., 183 Wis. 2d 667, 677-78, 515 N.W.2d 705 (1994)). We agree with the court of appeals that the Johnsons' claim for loss of relationship with Charlotte must be construed as such and must be barred.


author: JON P. WILCOX, J.

text:
    State of Wisconsin ex rel. Ruven George Seibert, Petitioner-Petitioner, v. Phillip Macht, Director, Wisconsin Resource Center and Circuit Court for Outagamie County, Respondents.

    Supreme Court

      No. 99-3354-W.

      Oral argument April 11, 2001.

    Decided June 19, 2001.

    2001 WI 67
    (Also reported in 627 N.W.2d 881.)

      For the petitioner-petitioner there were briefs by Gregory P. Seibold and Murphy & Desmond, S.C., Madison, and oral argument by Gregory P. Seibold.

    For the respondents the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

      An amicus curiae brief was filed by Joseph N. Ehmann and Glenn L. Cushing, assistant state public defenders, on behalf of the Office of the State Public Defender.
    An amicus curiae brief was filed by Howard B. Eisenberg, Milwaukee.

      Motion for Reconsideration filed 7-9-01.

       See Callaghan's Wisconsin Digest, same topic and section number.

   JON P. WILCOX, J.

¶ 1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis. Stat. Chapter 980 (1999-2000), is constitutionally entitled to assistance of counsel in bringing his or her first appeal as of right from a denial of his or her petition for supervised release. Because due process and equal protection concerns are implicated, we rule that an indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release.

¶ 2. The second issue is whether there is ineffective assistance of counsel where appellate counsel filed an appeal from a petition for supervised release one day late. On the unique facts of this case, we find that there was ineffective assistance of counsel where the notice of appeal for the denial of the petition for supervised release was filed one day late in circuit court. Moreover, we find that under the United States Supreme Court's decisions in Douglas v. California, 372 U.S. 353 (1963), Anders v. California, 386 U.S. 738 (1967), and their progeny, the court of appeals cannot conduct an independent review for error where the individual lacks requested representation, whether that representation encompasses briefing on the merits or an Anders brief. Accordingly, we remand Seibert's cause to the court of appeals with instructions to appoint new appellate counsel who may submit either a brief on the merits or on Anders brief.

¶ 3. The petitioner, Ruven Seibert (Seibert), who was deemed a sexually violent person under Chapter 980, petitioned the Outagamie County Circuit Court, Dee R. Dyer, Judge, for supervised release and the circuit court denied his petition. The court of appeals subsequently dismissed Seibert's appeal as untimely. Seibert v. Macht, No. 99-2046-NM, order (Wis. Ct. App. Sept. 24, 1999). Seibert then filed a petition for a writ of habeas corpus, arguing that his right to effective assistance of counsel had been violated and requesting reinstatement of his right to appeal the denial of his petition for supervised release. Seibert v. Macht, No. 99-3354-W, unpublished slip op. at 1-2 (Wis. Ct. App. Aug. 22, 2000). The court of appeals rejected his petition for writ of habeas corpus in an unpublished decision and order. Id. at 9. We accepted Seibert's pro se petition for review and appointed counsel. For the following reasons, we reverse the decision of the court of appeals and remand the cause with instructions.

I

¶ 4. The facts are undisputed. In January of 1996, Seibert was deemed to be a sexually violent person under Chapter 980 and committed to the custody of the Department of Health and Human Services. Sei-bert then petitioned the circuit court for supervised release. The State Public Defender's office appointed trial counsel to represent Seibert. On November 16, 1998, the circuit court denied Seibert's petition orally on the record and Seibert said, "Your Honor, I would like to appeal this decision." The circuit court responded, "You may talk with [your trial counsel] about all of your appellate rights, Mr. Seibert." The circuit court entered the order of judgment denying the petition on March 12, 1999. Subsequent to the circuit court's ruling, trial counsel filed a Notice of Intent to Pursue Post-Judgment Relief, indicating that Seibert would appeal and requesting that the State Public Defender's office appoint appellate counsel to represent Seibert.

¶ 5. Just over one month later, on April 13,1999, appellate counsel filed notice of appointment to represent Seibert. On June 11,1999 — 91 days after the entry of judgment in the Outagamie County Circuit Court — appellate counsel filed the notice of appeal in the circuit court, which was one day late. See Wis. Stat. § 808.04(1). Even though the notice of appeal was filed timely in the court of appeals for District III in Madison, the court of appeals lacked jurisdiction over the appeal because appellate counsel had filed one day late in Outagamie County. See Wis. Stat. § 809.10(l)(b). Attempting to correct the problem, appellate counsel filed an amended notice of appeal on July 6,1999, which indicated that she would be filing a no merit report per Anders and Wis. Stat. § 809.32. The court of appeals dismissed the appeal as untimely per Wis. Stat. § 808.04(1). Seibert v. Macht, No. 99-1574, order (Wis. Ct. App. July 9, 1999). Appellate counsel then filed another appeal, again indicating that she would be filing a no merit report. The court of appeals responded as it did before, dismissing this second appeal as untimely. Seibert v. Macht, No. 99-2046-NM, order (Wis. Ct. App. Sept. 24, 1999).

¶ 6. Proceeding pro se, Seibert petitioned for habeas corpus relief in the court of appeals, which is the action presently before us. His writ asserts that the assistance of counsel he received was ineffective and seeks reinstatement of his right to appeal the denial of his petition for supervised release. Acknowledging appellate counsel's belated filing of the notice of appeal from the denial of his petition for supervised release, the court of appeals proceeded to conduct an independent review of the trial record of that action in the context of his habeas petition. Seibert, No. 99-3354-W, unpublished slip op. at 3-9. According to the court, this independent review revealed "that any potential appellate issue would lack arguable merit within the meaning of Anders." Id. at 2. On this ground, the court concluded that the case was appropriate for summary disposition and denied Seibert's writ. Id. at 9.

¶ 7. We granted Seibert's petition for review on September 6, 2000, and appointed counsel, directing the parties to address the United States Supreme Court's decisions in Penson v. Ohio, 488 U.S. 75 (1988), and Smith v. Robbins, 528 U.S. 259 (2000).

I — 1 b — t

¶ 8. Seibert asks this court to determine whether he has a constitutional right of counsel on appeal and, if that constitutional right was violated, what is the appropriate remedy. Thus, he presents us with two questions of law, which we undertake our review without deference to the decision of the court of appeals. See State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 647, 579 N.W.2d 698 (1998); State v. Harris, 199 Wis. 2d 227, 237, 544 N.W.2d 545 (1996).

¶ 9. At the outset, we observe that the State and Seibert are in remarkable agreement on most aspects of this case. Both the State and Seibert agree that the court of appeals did what the United States Supreme Court forbade in Penson by independently reviewing the record for reversible error when Seibert was not represented by counsel in the context of his habeas petition. 488 U.S. at 81-83. Thus, the parties agree that the decision of the court of appeals must be reversed. The State and Seibert are also in accord that Seibert has a statutory right of counsel per Wis. Stat. § 980.03(2)(a).

¶ 10. Moreover, the State concedes, as Seibert advances, that Seibert has a constitutional right of counsel upon appeal, but the State urges us to acknowledge only his statutory right to counsel. According to the State, we should decide this issue on the "narrowest possible grounds," and "not reach constitutional issues where the resolution of other issues disposes of an appeal." State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997). However, because an indigent defendant's right of counsel implicates equal protection and due process concerns, we reject the State's argument and acknowledge Seibert's constitutional right of counsel.

¶ 11. The United States Supreme Court has termed the Sixth Amendment right of counsel as fundamental. Powell v. Alabama, 287 U.S. 45, 68 (1932). Thereafter, the Supreme Court ruled that the Sixth Amendment right of counsel applies to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342-44 (1963). On this score, the Supreme Court has noted:

There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.

Douglas v. California, 372 U.S. 353, 357-58 (1963). Although the states are not constitutionally required to provide appellate review of criminal convictions, where such review is afforded, it cannot discriminate against indigent individuals. Griffin v. Illinois, 351 U.S. 12, 18 (1956). Discrimination against indigent individuals on appellate review implicates equal protection and due process concerns: "[b]oth equal protection and due process emphasize the central aim of our entire judicial system — all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.'" Id. at 17. Accordingly, as the Supreme Court made clear in its watershed Douglas decision, the right of counsel for indigent defendants is rooted not only in the Sixth Amendment, but in the Equal Protection and Due Process clauses of the Fourteenth Amendment. 372 U.S. at 356-58.

¶ 12. As Douglas explained, the right of counsel flows along with the right of appeal. Id. at 356. In Wisconsin, the right of appeal from a criminal conviction is afforded to defendants by our state constitution. See Wis. Const. art. I, § 21. In accordance with Griffin, then, we have previously noted that "[d]ue process requires that a criminal defendant receive effective assistance of appellate counsel in bringing the first appeal as of right." State v. Knight, 168 Wis. 2d 509, 511-12, 484 N.W.2d 540 (1992). Although a sexually violent person, committed under Chapter 980, is not a criminal defendant, he or she has the same constitutional rights as a criminal defendant. See Wis. Stat. § 980.05. It therefore follows that an individual committed under Chapter 980 has a constitutional right of counsel in bringing his or her first appeal as of right, emanating from both the Fourteenth Amendment's Equal Protection Clause and Due Process Clause as well as the Sixth Amendment's right of counsel. This right of counsel encompasses the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Flores, 183 Wis. 2d 587, 605, 516 N.W.2d 362 (1994). Consequently, we recognize Seibert's constitutional right of counsel — including the right to effective assistance of counsel — on his first appeal as a matter of right.

J — I I — I HH

¶ 13. An appellant's indigence weighs heavily on his or her constitutional right to effective assistance of counsel, raising the specter of due process and equal protection violations. The crux of the problem is that, as a practical matter, appointed counsel — conserving scarce public resources — is perhaps more apt to withdraw, finding the appeal frivolous, than counsel for a full-paying client. See McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429, 438 (1988) (noting that an Anders brief is "seldom, if ever, filed by retained counsel" but this fact does not compromise the principle of "substantial equality"). Regardless, where an indigent defendant has appointed counsel and desires to pursue his or her first appeal of right, there is a risk that he or she will not receive due process or equal protection of the law.

¶ 14. To address this risk, the Supreme Court devised the Anders "prophylactic framework," which requires that appellate counsel seeking to withdraw after finding the individual's appeal frivolous submit a brief "referring to anything in the record that might arguably support the appeal." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Anders, 386 U.S. at 744. The Anders brief is intended "to vindicate the constitutional right to appellate counsel announced in Douglas." Smith, 528 U.S. at 273. After appellate counsel submits an Anders brief requesting to withdraw because an appeal would be frivolous, it is the duty of the appellate court to conduct "a full examination of all the proceedings" and to determine if the appeal would indeed be wholly frivolous. Anders, 386 U.S. at 744. However, if the appellate court conducts this full examination where the appellant has no representation, even though the appellant has requested representation, it violates the dictates of Douglas and the holding of Pen-son. Penson, 488 U.S. at 86. To be sure, there may be some redundancy inherent in the Anders prophylactic framework because both appellate counsel and the appellate court review the record. But any such redundancy helps vindicate an indigent individual's constitutional right of counsel, thus outweighing the cost of the duplicative review. The Anders brief, then, is a safe harbor when counsel believes that a brief on the merits is inappropriate and, as such, it endeavors to protect an indigent individual's right of counsel on appeal.

¶ 15. In the present case, appellate counsel intended to file a no merit report per Anders, which would have preserved Seibert's right to counsel on appeal from the denial of his petition for supervised release. Although the notice of appeal was filed timely with the court of appeals in Madison, it was not filed until one day late with the circuit court in Outagamie County. The record here indicates that Seibert unequivocally desired to appeal the denial of his petition for supervised relief. The State has not highlighted any fact that indicates otherwise. As we have previously stated in accord with Strickland, "[i]n order to prove a claim of ineffective assistance of counsel, the defendant must show that his or her counsel performed deficiently and that the deficient performance prejudiced the defense." State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996); see Roe v. Flores-Ortega, 528 U.S. 470 (2000) (ruling that Strickland provides the analytical framework where counsel fails to file notice of appeal). In circumstances such as these, missing the deadline to file an appeal is deficient performance that denied Seibert the right to counsel. Id. at 253-54.

¶ 16. Seibert's loss of the right to appeal from the denial of his petition for supervised release under these circumstances was prejudicial because "[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Strickland, 466 U.S. at 692. We recognize that many habeas corpus petitions asserting ineffective assistance of counsel may require an evidentiary hearing by a referee or circuit court for fact-finding, perhaps to ascertain whether the counsel's failure to file was due to instructions to that effect from his or her client. See Knight, 168 Wis. 2d at 521 (appellate court has authority to submit issue of ineffective assistance of counsel to referee or circuit court for fact-finding during habeas proceeding). We therefore confine our holding on ineffective assistance of counsel to the facts of this case, which show that Seibert clearly expressed his desire to appeal from the denial of his petition for supervised release and the notice of appeal was filed timely with the court of appeals in Madison, but missed the deadline in Outagamie County Circuit Court by one day, which abrogated Seibert's constitutional right to assistance of counsel.

¶ 17. But the court of appeals also violated Sei-bert's constitutional right to assistance of counsel when it conducted an independent review of the trial record for error in the context of his habeas proceeding, contrary to the Supreme Court's rulings in Douglas, Anders and their progeny. In fashioning a remedy for Seibert, we turn to the Supreme Court's decision in Penson for guidance. 488 U.S. 75.

¶ 18. In Penson, an indigent defendant, convicted of several counts of felonious assault, desired to appeal. Id. at 77-79. The state appointed him appellate counsel. Id. at 77. His counsel, seeking to withdraw, filed a "Certification of Meritless Appeal and Motion" with the Ohio Court of Appeals, but did not include an Anders brief. Id. at 77-78. Nevertheless, the Ohio Court of Appeals granted counsel's motion to withdraw and then, without assistance of counsel for the petitioner, proceeded with its own examination of the record to determine whether the defendant received a fair trial or whether there were any prejudicial errors. Id. at 79. The court found " 'several arguable claims,'" including plain error as to one count, which it reversed. Id. However, because the defendant did not receive assistance of counsel upon appeal, the Supreme Court found the Ohio Court of Appeals' actions anathema to the Constitution, particularly as explained in its Douglas and Anders decisions. Id. at 83-85. In the present case, as acknowledged by the parties, the court of appeals' independent review of the record without the benefit of counsel is similar to the Ohio Court of Appeals' constitutionally infirm actions in Penson, and compels us to reverse.

¶ 19. Penson, however, not only reiterates the constitutional imperatives regarding the right to appellate counsel outlined in Douglas and Anders, it is also instructive on the appropriate remedy when a court disregards those imperatives. In Penson, the Supreme Court rejected the state's argument that the defendant needed to show "prejudice" under Strickland, 466 U.S. 668. In so doing, the Supreme Court stated that "it is important to emphasize that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process. This is quite different from a case in which it is claimed that counsel's performance was ineffective." Penson, 488 U.S at 88. As such, the denial of counsel in these circumstances gives rise to a "presumption of prejudice," rendering any actual finding of prejudice under Strickland superfluous. Id. at 88-89. Accordingly, we find that Seibert, who clearly indicated his desire to pursue an appeal of the circuit court's order denying his petition for supervised release on the record, is not required to demonstrate prejudice at an evidentiary hearing. While the State urges us to subject Seibert to this procedural hurdle under Strickland, we note that Strickland is applicable only where an individual is represented by counsel. See Jenkins v. Coombe, 821 F.2d 158, 161 (2d Cir. 1987) (finding Strickland inapplicable where defendant had "no counsel or, at best, nominal counsel to represent his interests on the state appeal"). When the court of appeals independently reviewed the trial record for error in the context of Seibert's habeas proceeding, he was not represented by counsel, in violation of the commands of Douglas and Anders.

¶ 20. In light of the denial of counsel Seibert suffered, we decline to remand the present case to the circuit court for an evidentiary hearing on ineffective assistance of counsel as requested by the State. Instead, we remand the present case to the court of appeals, which will appoint Seibert new appellate counsel and reinstate his right to appeal from the circuit court's denial of his petition for supervised release. To secure Seibert's constitutional right of counsel on his first appeal as a matter of right, we adopt the prophylactic framework of Anders and its progeny for Chapter 980 cases. Accordingly, appellate counsel may file a brief on the merits or ana. Anders brief. We urge the court of appeals to provide flexibility in setting the briefing schedule.

IV

¶ 21. In conclusion, we recognize Seibert's constitutional right of counsel on his first appeal as a matter of right. We find that his attorney's failure to timely file Seibert's notice of appeal ran afoul of Strickland under these extraordinary circumstances. Moreover, we find that the court of appeals disregarded his constitutional right of counsel in the context of his habeas proceeding by independently reviewing the record for reversible error. Accordingly, we adopt the prophylactic framework of Anders for Chapter 980 appeals in order to preserve Seibert's constitutional right of counsel on appeal.

By the Court. — The decision of the court of appeals is reversed and the cause remanded to the court of appeals.

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

       An Anders brief is submitted to an appellate court when counsel finds his or her client's case is "wholly frivolous, after a conscientious examination of it." Anders v. California, 386 U.S. 738, 744 (1967). In such a case, counsel may request permission to withdraw. But counsel's request to withdraw must "be accompanied by a brief referring to anything in the record that might arguably support the appeal." Id. This brief is thus commonly referred to as an Anders brief; After an Anders brief is submitted, the appellate court, "after a full examination of all the proceedings," determines "whether the case is wholly frivolous." Id.

       However, there is no constitutional right of counsel for a discretionary appeal. See Ross v. Moffitt, 417 U.S. 600 (1974).

       The schedule in Wis. Stat. § 809.32(2) conflicts with the schedule in Wis. Stat. § 808.04. While we resolve this problem in footnote 8, we observe here that it may have been the source of confusion on the appeal from the denial of Seibert's petition for supervised release in this case.

       The State asked for this evidentiary hearing before the court of appeals as well. Seibert v. Macht, No. 99-3354-W, unpublished slip op. at 3-4 n.3 (Wis. Ct. App. Aug. 22, 2000). The court of appeals, in rejecting the State's argument, stated that "[a] remand is unnecessary. At the end of the November 16, 1998, hearing on Seibert's motion, Seibert stated on the record that he desired to appeal." Id. The court of appeals further noted that "[w]e are satisfied that the failure to file a requested notice of appeal in a timely fashion constitutes ineffective assistance of appellate counsel." Id. at 3.

       The State's evidentiary hearing would fail to address the constitutional violation that occurred in the context of Seibert's habeas petition: the court of appeals' independent review of the record. See Penson v. Ohio, 488 U.S. 75 (1988). As the Supreme Court observed in Smith v. Robbins, 528 U.S. 259, 286 (2000), "[t]he applicability of Strickland's actual-prejudice prong to Robbins's claim of ineffective assistance follows from Penson,
        where we distinguished denial of counsel altogether on appeal, which warrants a presumption of prejudice, from mere ineffective assistance of counsel on appeal, which does not."

       The Sixth, Second, Eighth and Eleventh Circuit Courts of Appeals have found remand to the appellate court with instructions to appoint appellate counsel the appropriate remedy where the defendant's constitutional rights have similarly been infringed. See Freels v. Hills, 843 F.2d 958, 963 (6th Cir. 1988) (refusing to apply two-part Strickland test because "the obligation of advocacy required of counsel by Anders is of such a quality that it is not subject to waiver or excuse"); Jenkins v. Coombe, 821 F.2d 158, 161 (2d Cir. 1987) (cited above); Robinson v. Black, 812 F.2d 1084, 1086-88 (8th Cir. 1987) (asserting that case should be remanded to state supreme court and new counsel appointed where court found "that Anders' dictates were woefully unsatisfied" but not applying Strickland test to counsel's performance); Cannon v. Berry, 727 F.2d 1020, 1021-24 (11th Cir. 1984) (asserting that requiring a defendant to show actual prejudice where appellate court reviewed defendant's trial record for errors and defendant lacked representation would lead to an erosion of Anders).

       As previously noted, the schedule set forth in Wis. Stat. § 809.32(2), which provides 180 days to file a "no merit brief' after the trial transcript is served on the defendant conflicts with the schedule in § 808.04, which provides that an appeal from a civil judgment or order must take place within 45 or 90 days. This discord exists because a no merit brief is submitted on appeal from a criminal conviction. However, Chapter 980 proceedings are civil and, therefore, the schedule set forth in § 808.04, which provides 45 or 90 days, applies. See State v. Post, 197 Wis. 2d 279, 290-307, 541 N.W.2d 115 (1995) (explaining the Chapter 980 statutory scheme); Seibert v. Macht, No. 99-3354—W, unpublished slip op. at 3 n.2 (Wis. Ct. App. Aug. 22, 2000). We leave the issue of whether Chapter 980 appeals should be exempted from § 808.04 to the legislature. We note that the Judicial Council is currently weighing legislation to amend § 808.04(3) to include Chapter 980 proceedings. However, as the law currently stands, § 808.04 governs Chapter 980 appeals, and counsel for an individual committed under chapter 980 who wishes to appeal as a matter of right may either file a brief on the merits or an Anders brief.


author: PER CURIAM, SHIRLEY S. ABRAHAMSON,

text:
    Kathleen Jensen, Bradley Jensen and Erik Jensen (a minor), Plaintiffs-Appellants, State of Wisconsin, Department of Health and Family Services, Plaintiff, v. Wisconsin Patients Compensation Fund, David McPherson, M.D., and Lakeland Medical Center, Defendants-Respondents.
    Supreme Court

      No. 99-2774.

      Filed June 19, 2001.

    2001 WI 66
    (Also reported in 627 N.W.2d 897.)

      Please see original case at 241 Wis. 2d 142.

   PER CURIAM,

¶ 1. (on motion for reconsideration). The defendant-respondent, David McPherson, seeks clarification of our opinion to make clear that on remand the plaintiffs-appellants do not have any right under Wis. Stat. § 801.58(7) to substitution of the original judge assigned to this case with respect to the Court's directive that the circuit court provide counsel (whose pro hac vice status was withdrawn) with notice and an opportunity to respond. The motion is denied.

¶ 2. State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, sets forth the applicable law relating to substitutions on remand, and the circuit court will apply the Findorff case should such a request for substitution be filed.

SHIRLEY S. ABRAHAMSON,

¶ 3. CHIEF JUSTICE (dissenting). In my concurrence in State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30, ¶ 38, 233 Wis. 2d 428, 608 N.W.2d 679, I concluded that this court should state in any decision mandating a remand whether the parties are entitled to seek substitution on the issue for which the cause was remanded.

¶ 4. After Findorff, the Director of State Courts on the recommendation of the Chief Judges and District Court Administrators filed a petition with this court requesting that we promulgate a rule requiring an appellate court remanding a case to a circuit court to state whether the parties have a right to request substitution of a judge. This court denied the petition. See Supreme Court Order No. 00-10 (March 7, 2001).

¶ 5. During the hearing on the petition, the State Bar of Wisconsin and the Litigation Section of the State Bar objected to the proposed rule because it did not give counsel in the case an opportunity to be heard on the right of substitution. The representatives from the Litigation Section did, however, advise this court that they preferred that an appellate court, rather than the circuit court, decide the issue of the right of substitution and that after the appellate decision counsel may determine at the circuit court level whether to exercise that right.

¶ 6. I agree with the State Bar and the Litigation Section that counsel should be given an opportunity to be heard on the issue of substitution and that the appellate court rather than the circuit court should apply Findorff.

¶ 7. Accordingly, on reflection I conclude that my suggestion in the Findorff concurrence that this court decide the issue of substitution in every case mandating a remand was flawed because it failed to ensure that counsel would have an opportunity to be heard in the appellate court on the matter.

¶ 8. In this case, the record is still with this court, and counsel for all parties have had an opportunity to be heard on the issue of substitution. I would therefore clarify our opinion in the present case and, applying the Findorff rule, I would state that the parties have a right to request substitution on the issue for which the case is remanded.

¶ 9. More importantly, we should keep this issue of substitution on remand in perspective, namely, that very few remands involve "merely discharging a ministerial duty," Findorff, 233 Wis. 2d at 432, in which no right of substitution exists.

¶ 10. For the reasons set forth, I dissent.


author: PER CURIAM.

text:
    In re the Commitment of Shawn Schulpius: State of Wisconsin, Petitioner-Appellant, v. Shawn Schulpius, Respondent-Respondent.
    Supreme Court

      No. 00-0095.

      Oral argument December 1, 2000.

    Decided June 22, 2001.

    2001 WI 69
    (Also reported in 628 N.W.2d 349.)

      For the petitioner-appellant the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the respondent-respondent there were briefs and oral argument by Ellen Henak, assistant state public defender.
   PER CURIAM.

¶ 1. This case is before the court on a petition to bypass the court of appeals pursuant to Wis. Stat. § 809.60. The immediate question before the court, however, is whether to accept the notice of voluntary dismissal of this appeal filed by the petitioner, State of Wisconsin.

¶ 2. The respondent, Shawn Schulpius, challenged his Chapter 980 commitment on several constitutional grounds when the Department of Health and Family Services could not find appropriate placement following the August 18, 1997, order that the respondent be placed on supervised release issued by the Circuit Court for Milwaukee County, John Franke, Circuit Court Judge.

¶ 3. On October 27, 1999, the circuit court held that as applied to Schulpius, Wis. Stat. Ch. 980 presented an unconstitutional violation of the double jeopardy, substantive due process, and ex post facto clauses of the United States and Wisconsin constitutions. The circuit court entered an order releasing Schulpius from the Wisconsin Resource Center.

¶ 4. The State petitioned the court of appeals for permission to appeal a nonfinal order and the court of appeals granted the petition, State v. Schulpius, Case No. 00-0095 (order of March 14, 2000). After briefing, Schulpius petitioned this court to bypass the court of appeals.

¶ 5. On November 29, 2000, the circuit court entered an order in which it granted the State's motion for reconsideration, determined that Schulpius was no longer suitable for supervised release, and ordered him committed to the Wisconsin Resource Center. The order further stated that the commitment to institutional care was "still subject, however, to the decision and order requiring release entered in this case on October 27,1999." The State filed a notice of voluntary dismissal in this court on November 30, 2000, and Schulpius responded with a motion for order rejecting notice of voluntary dismissal.

¶ 6. On December 1, 2000, this court heard oral argument on whether to accept the State's notice of voluntary dismissal and on the following three issues: (1) whether the trial court had the authority to issue the November 29, 2000 order; (2) whether the order rendered the case moot; and (3) the possible effect of the United States Supreme Court's decision in Seling v. Young, No. 99-1185. After oral argument, the court received a copy of a December 1, 2000 letter of the circuit court further explaining its November 29, 2000 order. Subsequently, we issued an order holding in abeyance the consideration of the State's notice of voluntary dismissal and the oral arguments on the merits of this appeal pending the United States Supreme Court's decision in Seling v. Young.

¶ 7. The United States Supreme Court issued its decision in Seling v. Young, 531 U.S. 250 (2001) on January 17, 2001. Schulpius then requested an opportunity for supplemental briefing addressing the effect of the circuit court's December 1, 2000 letter on the issue of whether the circuit court intended the October 27, 1999 order to take precedence over the November 29, 2000 order and the effect of the Seling v. Young decision. This court ordered the requested supplemental briefing.

¶ 8. Having considered the supplemental briefs filed by the parties, the court is equally divided on whether to accept the State's notice of voluntary dismissal. Justice Jon P. Wilcox, Justice N. Patrick Crooks, and Justice Diane S. Sykes would accept the voluntary dismissal; Chief Justice Shirley S. Abraham-son, Justice William A. Bablitch, and Justice Ann Walsh Bradley would deny the voluntary dismissal and schedule further argument on the issues of this appeal. Justice David T. Prosser did not participate. Because the court is evenly divided, both the motion for order rejecting the notice and the notice for voluntary dismissal are denied.

¶ 9. Furthermore, given the division of this court, it will promote the efficient resolution of this appeal to remand this case to the court of appeals. We thus vacate our decision to grant bypass and remand the cause to the court of appeals for determination of further proceedings. See Guzman v. St. Francis Hosp., Inc., 2000 WI 34, ¶ 2, 234 Wis. 2d 170, 609 N.W.2d 166.

By the Court. — The order granting bypass is vacated and the cause is remanded to the court of appeals.