Francis Penterman, Sr. v. Wisconsin Electric Power Company
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SUPREME COURT OF WISCONSIN Case No.: 96-0164 Complete Title of Case: Francis Penterman, Sr. and Ruth Kamnik, Plaintiffs-AppellantsPetitioners, Dupont Mutual Insurance Company, a Wisconsin Insurance Corporation, Involuntary-Plaintiff, v. Wisconsin Electric Power Company, a domestic corporation, Defendant, Daniel M. Dasho, Defendant-Respondent. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 204 Wis. 2d 277, 556 N.W.2d 684 (Ct. App. 1996) UNPUBLISHED Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: July 2, 1997 May 29, 1997 Circuit Outagamie John A. Des Jardins JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the plaintiffs-appellants-petitioners there were briefs by Lynn R. Laufenberg and Cannon & Dunphy, S.C., Brookfield and Scott Lawrence and Lawrence & Des Rochers, S.C., St. Nazianz and oral argument by Lynn R. Laufenberg. For the defendant-respondent the cause was argued by Charles D. Hoornstra, assistant attorney general, with whom on the brief Richard A. Victor, assistant attorney general, and James E. Doyle, attorney general. No. 96-0164 NOTICE ` This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-0164 STATE OF WISCONSIN : IN SUPREME COURT Francis Penterman, Sr. and Ruth Kamnik, FILED Plaintiffs-Appellants-Petitioners JUL 2, 1997 Dupont Mutual Insurance Company, a Wisconsin Insurance Corporation, Marilyn L. Graves Clerk of Supreme Court Madison, WI Involuntary Plaintiff, v. Wisconsin Electric Power Company, a domestic corporation, Defendant, Daniel M. Dasho, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 JANINE P. GESKE, J. This is a Affirmed. review of an unpublished decision of the court of appeals1 affirming the order of the Circuit Court for Outagamie County, John A. Des Jardins, Judge. The circuit court dismissed the claims of Francis Penterman, Sr. and Ruth Kamnik against Daniel Dasho, an employee of the Wisconsin Public Service Commission, for failure to state 1 Penterman v. Wis. Electric Power Co., unpublished slip op. (Wis. Ct. App. Aug. 6, 1996). 1 No. 96-0164, No. 96-0164 a claim upon which relief could be granted. The circuit court also concluded that Dasho was entitled to qualified immunity against the plaintiffs' claims. Penterman and Kamnik alleged in their Dasho amended complaint that deprived them of their constitutionally protected rights, and sought remedies under 42 U.S.C. § 1983. ¶2 2 The court of appeals affirmed the circuit court in part, holding that Penterman and Kamnik failed to state a claim upon which relief could be granted. In a footnote to its decision, the court of appeals concluded that it was unnecessary to address the issue of qualified immunity for Dasho because the amended complaint failed to state a claim. ¶3 This case presents unique Slip op. at 2, n.2. legal claims. Because damage to livestock and loss of use of farm property are not commonly claimed to result from constitutional violations, and because the affirmative defense of qualified immunity turns on whether the established plaintiffs have constitutional alleged rights, a we violation consider of clearly the questions presented in reverse order from the court of appeals. Since we conclude that Penterman and Kamnik have not made a sufficient showing that Dasho violated a clearly established constitutional right, 2 defined in such a way that a reasonable official 42 U.S.C. § 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 2 in No. 96-0164 Dasho's position could believe that his or her conduct violates that right, we do not consider whether the plaintiffs have stated a claim against Dasho upon which relief can be granted. We therefore affirm the mandate of the court of appeals, but on 3 the ground of qualified immunity. law but apply a traditional unusual pleadings. In this case we make no new qualified immunity inquiry to We caution, therefore, that our qualified immunity inquiry is fact-specific, limited to the facts alleged in the pleadings. FACTS AND PROCEDURAL HISTORY ¶4 For purposes of the qualified immunity analysis on review of a motion to dismiss, we accept the facts pled as true. See State v. Wisconsin Telephone, 91 Wis. 2d 702, 720, 284 N.W.2d 41 (1979). Penterman and Kamnik acquired a farm in Waushara County in April, 1992. They operated the property as a dairy line, farm. Defendant A distribution Wisconsin Electric Power owned and Company operated (WEPCo), by provided electrical service to the farm. ¶5 It appears from the complaint that for some time between April 1992 and January 12, 1993, Penterman and Kamnik experienced substantial problems with their dairy operation, including reduced milk production, increased illness and death of cattle, calves, and other livestock, and infertility. On January 12, 1993, Penterman received an electrical shock from the bulk tank in the milk house located on the farm. believed the shock originated from 3 stray Penterman electrical voltage Our decision that Dasho is entitled to qualified immunity has no bearing on the merits of the plaintiffs' underlying claims against the defendant utility. 3 No. 96-0164 accessing his barn through WEPCo s distribution line. On January 31, 1993, Penterman disconnected the barn service cable from the WEPCo distribution line and connected a portable generator to supply power to the barn equipment. Once he took that action, Penterman did not detect any voltage between equipment and fixtures and the concrete floor. ¶6 The next day, February 1, 1993, Penterman contacted the Wisconsin Public Service Commission s ( PSC ) Stray Voltage Analysis Team (SVAT) about the problems on the farm. Penterman was told that SVAT would contact WEPCo on his behalf to advise WEPCo of a possible stray representatives conducted tests voltage at the problem. WEPCo Penterman/Kamnik farm, concluding that the stray voltage was the result of on farm problems. ¶7 On February 8, 1993, WEPCo performed further tests at the Penterman/Kamnik farm. Penterman and Kamnik claimed that WEPCo s testing procedures contained irregularities and reported these claims to Daniel Dasho, Program Manager of SVAT. On February 12, 1993, Dasho and WEPCo representatives came to the Penterman/Kamnik farm. During that visit, Dasho supervised the reinstallation of WEPCo s test equipment and observed voltage readings on Penterman s test equipment. ¶8 again On February 24, 1993, Dasho and WEPCo representatives went additional to tests the Penterman/Kamnik conducted by WEPCo, farm. and Dasho then told observed WEPCo s representatives that the stray voltage was a utility problem. Dasho instructed WEPCo to deep ground its distribution line. 4 No. 96-0164 WEPCo placed grounding rods, but Penterman and Kamnik contend that the excess voltage continued. ¶9 After the February 24, 1993 testing, Penterman and Kamnik continued to ask WEPCo and the PSC for additional testing and further assistance. Dasho informed Penterman and Kamnik that the utility responsibility had been fixed, and that any remaining voltage was from on-farm sources. Dasho also told Penterman and Kamnik that a full SVAT analysis was unnecessary. ¶10 On March 24, 1994, almost fourteen months after Penterman first discovered the stray voltage on his farm, Dasho directed voltage and at supervised the a limited Penterman/Kamnik SVAT farm analysis at for Penterman's stray request. Dasho reported afterwards that SVAT had found no severe levels of stray voltage. Penterman and Kamnik contend that there were irregularities in these SVAT tests and inconsistencies between Dasho s report and the data actually Kamnik filed discovered during the course of the testing. ¶11 January Penterman 25, and 1995, alleging negligence, trespass, violations. After suit strict spoilation conducting of some against liability, evidence, discovery, and WEPCo on nuisance, statutory Penterman and Kamnik filed an amended complaint on June 13, 1995, adding Dasho as a defendant and asserting claims against Dasho and WEPCo for damages under 42 U.S.C. § 1983. that color Dasho, acting under 5 Penterman and Kamnik alleged of state law, deliberately, No. 96-0164 intentionally, 4 and/or recklessly constitutionally protected access courts, to protection. the rights deprived to substantive Specifically, Penterman them procedural of due due process, and Kamnik their process, and equal alleged that Dasho, in concert with WEPCo, (a) failed to follow or employ PSC procedures for the identification and measurement of stray voltage; (b) approved or ratified testing procedures and practices employed by WEPCo which he knew or should have known were ineffective for identifying or eliminating utility-caused stray voltage; (c) attributed stray voltage detected and documents by Penterman and Kamnik to faulty equipment or testing procedures when he knew or should have known that such attribution was false; (d) reported information obtained through testing he knew or should have known was improperly conducted and would produce inaccurate results; (e) attributed stray voltage to on-farm wiring problems or electrical usage patterns when he knew or should have known that such attribution was false; (f) refused to recommend or require WEPCo to implement corrective action which he knew or should have known was required to reduce or eliminate harmful utility-caused stray voltage on the farm; (g) characterized stray voltage on the Penterman/Kamnik farm as not severe" or insignificant when he knew or should have known that such characterization was inaccurate; and (h) conspired with and/or aided and abetted WEPCo in its effort to conceal evidence of utility-caused stray voltage on the farm. 4 The factual allegations of the amended complaint also appear to state a cause of action in negligence. See, e.g., subsections (b) through (g), of paragraph 22 of the amended complaint. To the extent the complaint alleges that Dasho was negligent, we agree with the court of appeals that the due process clause is not implicated by the negligence of an official causing unintended loss of, or injury to, life, liberty, or property. Slip op. at 7 (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)). 6 No. 96-0164 ¶12 On August 3, 1995, Dasho filed a motion to dismiss the amended complaint on the ground that it failed to state a claim upon which relief could be granted. In his brief in support of that motion, Dasho also argued that he was entitled to qualified immunity from the claims. After a hearing, the circuit court granted Dasho s motion to dismiss in an order dated November 27, 1995. The circuit court, basing its decision on the pleadings and the briefs, concluded that Penterman and Kamnik had failed to state a claim upon which relief could be granted against Dasho for interference substantive due with process, their access right to to procedural courts, and to and equal protection. The circuit court also concluded that Dasho was entitled qualified to immunity from Penterman and Kamnik's constitutional claims. ¶13 Penterman and Kamnik appealed. The court of appeals affirmed the circuit court s order, concluding that the amended complaint against Dasho relief could be granted. failed to state a claim upon which The court of appeals further concluded that because Penterman and Kamnik failed to state a claim, it was unnecessary to qualified immunity. determine whether Dasho was entitled to This court granted Penterman s petition for review on both issues.5 5 This court granted Penterman and Kamnik s petition for review on the questions of substantive due process, equal protection, and qualified immunity. Although the petition for review did not seek review of the court of appeals' ruling on procedural due process deprivation and access to the courts, those claims were presented in the briefs and oral arguments by counsel for Penterman and Kamnik as well as for Dasho. The state acknowledged at oral argument that it has not been prejudiced by consideration of these issues. We therefore exercise our discretion to consider all of the issues raised by the petitioners. 7 No. 96-0164 QUALIFIED IMMUNITY ¶14 court We begin our analysis by examining whether the circuit correctly dismissed defendant Daniel action on the ground of qualified immunity. Dasho from this This is a question of law that we decide independently and without deference to the lower courts. Kara B. v. Dane County, 205 Wis. 2d 140, 555 N.W.2d 630, 632 (1996); Barnhill v. Board of Regents, 166 Wis. 2d 395, 406, 479 N.W.2d 917 (1992). If the public official is immune from suit, the lawsuit does not proceed and there is no determination of liability on the merits. appropriately resolved at the summary Qualified immunity is judgment stage6 before extensive measures are taken to defend the public official or employee. Id.(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). ¶15 Although "[q]ualified immunity is an affirmative defense," Burkes v. Klauser, 185 Wis. 2d 308, 327, 517 N.W.2d 503 (1994), cert. denied, 115 S. Ct. 1102 (1995), plaintiffs have the burden to demonstrate by closely analogous case law, that the defendant constitutional right. has violated a clearly established Id. at 330. 6 We note that this case is before us on a motion to dismiss. Although the plaintiffs engaged in some discovery prior to amending the complaint and adding Dasho as a defendant, we must decide a motion to dismiss for failure to state a claim based only on the pleadings. Although usually, the defense of qualified immunity is raised at the summary judgment stage, Penterman and Kamnik do not assert that it is premature for a qualified immunity determination simply because they are here on a motion to dismiss. 8 No. 96-0164 ¶16 Qualified immunity protects government officials from civil liability if their conduct does not violate a person s clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Kara B., 205 Wis. 2d at 146; Burkes, 185 Wis. 2d at 326. In situations of abuse of office, an action damages may offer the only realistic avenue vindication of constitutional guarantees. . . . for for [A]t the same time, however, it cannot be disputed seriously that claims [against public officials] frequently run against the innocent as well as the guilty at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.' Harlow, 457 U.S. at 814 (citations omitted); see also Burkes, 185 Wis. 2d at 325-26; Kara B., 205 Wis. 2d at 146. ¶17 The question is whether the official acted reasonably under settled law in light of the circumstances, not whether another reasonable, or more reasonable, interpretation of events can be constructed after the fact. 408. Barnhill, 166 Wis. 2d at The relevant inquiry, then, is whether a reasonable state official could have believed his or her act was constitutional in light of clearly established law and the information [he or she] possessed at the time of the official's action. Burkes, 185 Wis. 2d at 326 (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). "The plaintiff's claimed right must be sufficiently particularized to put the defendants on notice of analogous case law indicating that their conduct is unlawful." Burkes, 185 Wis. 2d at 331. The doctrine of qualified immunity 9 No. 96-0164 provides ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. Hunter v. Bryant, 502 U.S. 224, 229 (1991). ¶18 The United States Supreme Court has provided some guidance in determining what constitutes a clearly established constitutional right: The operation of this standard . . . depends substantially on the level of generality at which the relevant legal rule is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. . . . The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Barnhill, 166 Wis. 2d at 407-08 (quoting Anderson v. Creighton, 483 U.S. at 640)(citations omitted). Other courts have articulated a similar test: The relevant inquiry is fact specific, and the plaintiff must point to a controlling case, decided before the events at issue, that establishes a constitutional violation on materially similar facts. . . .[P]re-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violated federal law in the circumstances. Wright v. Butts, 953 F. Supp. 1352, 1359-60 (M.D. Ala. 1996) (citations omitted). ¶19 Merely alleging a general violation of a right that may be clearly established in the constitution is insufficient to justify withholding qualified immunity. 2d at 408. Barnhill, 166 Wis. Instead, the test is whether the law was clear in 10 No. 96-0164 relation to the specific facts confronting the defendant at the time of his action. Burkes, 185 Wis. 2d at 330-331. This inquiry focuses on the circumstances with which the official is confronted. ¶20 Consequently, we must determine whether in February, 1993 through March, 1994, according to clearly established law, a reasonable official in Dasho's position could have believed that his voltage falsification at plaintiffs' access to the and Penterman/Kamnik constitutional the concealment courts, rights farm to substantive protection. 11 of evidence would procedural due of violate due process, stray the process, and equal No. 96-0164 SECTION 1983 CLAIM ¶21 Penterman and Kamnik's amended complaint added Dasho as a defendant and seeks damages pursuant to 42 U.S.C. § 1983 against both Dasho and WEPCo. ¶22 Section 1983, by substantive constitutional remedy a deprivation for itself, does rights. of such not Section rights. create 1983 Chapman any provides v. a Houston Welfare Rights Organization, 441 U.S. 600, 617-18 (1979). To state a cause of action under § 1983, a party must allege: (1) that a person acting under the color of state law committed the alleged conduct; and (2) that this conduct deprived the party of rights, privileges, or immunities protected by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Gomez v. Toledo, 446 U.S. 635, 640 (1980). ¶23 In applying this test, we first consider whether Dasho was acting under the color of state law when he falsified and concealed evidence of the Penterman/Kamnik farm. that Dasho extent of stray voltage on the Because the amended complaint alleges was the Program Manager for the Wisconsin Public Service Commission s (PSC) Stray Voltage Analysis Team (SVAT), we conclude that Penterman and Kamnik have satisfied the under the color of state law requirement. inquiry on the second deprived Penterman immunity secured by requirement and the Kamnik of We therefore focus our whether any Constitution or right, laws Dasho s privilege, of States. PROCEDURAL DUE PROCESS AND ACCESS TO COURTS 12 conduct the or United No. 96-0164 ¶24 In Penterman support and concealment of Kamnik of their maintain evidence has procedural that due Dasho's thwarted their process claim, falsification efforts to and seek recovery of compensatory damages in their suit against WEPCo. Similarly, plaintiffs contend that Dasho's falsification and concealment of evidence of the cause of the stray voltage has violated their right Brief at 39. the same of access to the courts. Petitioners' Since both constitutional claims present us with question believed that testing results of whether falsification was a and denial Dasho should concealment of a have of reasonably stray clearly voltage established constitutional right to maintain their action against WEPCo, we consider these claims together. ¶25 In a section 1983 claim for violation of procedural due process, a plaintiff must show a deprivation by state action of a constitutionally protected interest in "life, liberty, or property" without due process of law. Zinermon, 494 U.S. at 125 7 (citing the Due Process Clause of the Fourteenth Amendment). The right of access to the courts is secured by the First 7 U.S. CONST. Amend. XIV, § 1 Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 8 U.S. CONST. Amend. I provides in pertinent part: 13 8 and No. 96-0164 Fourteenth Amendment. It opportunity to his Milwaukee, 746 present F.2d entitles 1205, or the her 1261 claim. (1984) Manzo, 380 U.S. 545, 552 (1965)). individual Bell to fair City of Armstrong (citing v. a v. Such a right exists where the claim has a reasonable basis in fact or law. Bell, 746 F. 2d at 1261 (citing Bill Johnson s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731 (1983)). Judicial effective, and meaningful. access must be adequate, Bounds v. Smith, 430 U.S. 817, 822 (1977). ¶26 To protections whether a determine of whether qualified person in Dasho immunity, Dasho's is the position entitled relevant could have to the inquiry is reasonably believed his or her act was constitutional in light of clearly established law and the information he possessed at the time he acted. Burkes, 185 Wis. 2d at 326 (emphasis added). conduct thus is measured by a standard of Dasho s objective legal reasonableness, and in this context we focus on the degree to which clearly established case law provided him guidance when he acted. Barnhill, 166 Wis. 2d at 407-08 (emphasis added). Consequently, we must determine whether in March 1994, Dasho knew or should have known that his actions would deny Penterman and Kamnik their right to procedural due process and access to the courts. ¶27 Penterman and Kamnik rely on Bell to establish their claim that Dasho s actions denied them access to the courts and, inferentially, procedural due process. In Bell, the Seventh Congress shall make no law . . . abridging . . . the right of the people . . to petition the Government for a redress of grievances. 14 No. 96-0164 Circuit Court of Appeals held that under limited circumstances, this right is denied when key facts which would form the basis for a plaintiff s claim are shielded from a plaintiff. 746 F.2d See also Ryland v. Shapiro, 708 F.2d 967 (5th Cir. at 1261. 1983) (prosecutor murdered Rylands daughter and conspired with other prosecutors to conceal that fact from the Rylands). Penterman and Kamnik argue that Dasho shielded facts which would form the basis of their claim by knowingly reporting that no severe stray voltage existed, when in fact it did exist at such a level on their farm. We disagree and distinguish Bell from the facts of this case on several grounds. ¶28 In Bell, a Milwaukee police officer shot and killed an unarmed youth following a foot chase. 746 F.2d at 1215. The officer then produced a knife and planted it in the victim s hand. Along with his partner, the officers devised a story to justify the killing as self-defense. Id. at 1216. Both officers then falsified reports related to the shooting and lied to their immediate supervisors. contradictions shooting. present in The supervisors did not pursue the officers' accounts soon the The facts surrounding the killing were in the sole province of members of the Milwaukee police department. 1262. of Id. at While the youth s father filed a wrongful death claim after his son s murder, the officers cover-up and concealment of facts interfered with the Bell family s efforts to seek redress in court. ¶29 In contrast, Id. at 1261-62. the facts relating to Penterman and Kamnik s claim were available to any interested party, including the plaintiffs. Indeed, the 15 allegations in the amended No. 96-0164 complaint suggest that the plaintiffs accumulated a substantial body of knowledge relating to their claim prior to the commencement of this action. In their complaint, Penterman and Kamnik allege that Dasho s falsification and concealment of evidence of the extent of the stray voltage testing resulted in continued stray voltage on the farm, which caused, among other things, (1) death of livestock, (2) reduction in value of affected livestock, (3) reduction in milk production, and (4) reduction in the value of property. At oral argument, however, Penterman and Kamnik acknowledged that Dasho played no role in causing the stray voltage on the farm. Further, after detecting stray voltage, Penterman temporarily eliminated the problem by disconnecting the barn service cable from the WEPCo distribution line and connecting a portable generator to supply power to the barn equipment. ¶30 Petitioner's Brief at 4. Penterman and Kamnik were experiencing problems on their new farm before Penterman received an electrical shock on January 12, 1993. It was at that point, according to the amended complaint, that Penterman first discovered there may be stray voltage on the farm. Further, over the course of Dasho's visits to the Penterman/Kamnik farm in 1993 and 1994, Dasho only told the plaintiffs that the stray voltage on their property was insignificant, or not severe. The amended complaint does Amended Complaint, para. 22(h). not allege that Dasho told the plaintiffs that no stray voltage was present on their farm. ¶31 here Unlike the plaintiff in Bell, the amended complaint does Kamnik's not allege claim were that facts shielded 16 related from them. to Penterman and Instead, the No. 96-0164 allegations establish that Penterman and Kamnik, through their own efforts and through the involvement of the PSC, possessed first-hand knowledge of the facts related to the existence, and extent, of knowledge, stray voltage Penterman underlying claims. and on their Kamnik farm. are Armed free to with pursue this their The stray voltage was already present on the plaintiffs' farm prior to Dasho s involvement. Penterman and Kamnik, by installing an alternate energy source, had the means to eliminate or reduce further damage resulting from the stray voltage. ¶32 The court of appeals succinctly distinguished both Bell and Ryland from this case. In those cases, the facts surrounding the defendants. the deaths were Slip op. at 6. in sole the court of appeals of the In contrast, here the evidence Dasho concealed was not in his sole control. with control that Dasho s We therefore agree actions, at worst, hampered Penterman and Kamnik s discovery of evidence. factual assertions clearly established procedural due fall short right process, of such of alleging a access to that reasonable a the violation courts, Such of a or of official in Dasho's position would believe his or her conduct violated those rights.9 9 In fact, the amended complaint tends to support the conclusion that Penterman and Kamnik have suffered no impediment to their right of access to the courts, or to procedural due process. Paragraph 17 of the amended complaint seeks "attorneys fees and costs associated with pursuing rights and remedies afforded by state and federal law." 17 No. 96-0164 ¶33 We further distinguish Bell from the facts of this case because Dasho did not cause Penterman and Kamnik s injury. The Bell court recognized this distinction: This case is especially distinguishable from Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983), since here, unlike Jackson, the underlying injury (i.e., the killing of Daniel Bell) was caused by a government official acting under color of law and member of the subsequent conspiracy. Jackson prudently holds that the due process clause does not impose a duty upon municipal employees to provide flawless and abundant social services. Yet, the constitutional duty imposed in [Bell] is simply the requirement that municipal employees involved in the investigation of a wrong perpetrated by a co-employee under color of state law not conceal the perpetration of that wrong. Bell, 746 F.2d at 1262. ¶34 caused Bell would apply if Dasho, acting under color of law, the injury to Penterman and Kamnik, and subsequently concealed the act which caused the injury during the course of his investigation. Penterman and Kamnik allege, however, that WEPCo, not Dasho, was responsible for the stray voltage which injured their farm property. Bell, therefore, is not Penterman and courts, and applicable. ¶35 Finally, we Kamnik s argument that inferentially, their WEPCo is illusory. are not persuaded their right to access by to procedural the due process against In their brief, the plaintiffs predict that Dasho will be called upon to testify at the trial against WEPCo. They further forecast that a jury in that action will find Dasho more credible public official. ¶36 than the plaintiffs because Dasho is a Petitioners' Brief at 38-39. Penterman and Kamnik do not offer support for this theory of deprivation, and we are unaware of any authority that 18 No. 96-0164 would do so. well The law regarding witness credibility, however, is settled. provide The that juries Wisconsin Jury Instructions are sole judges the of specifically credibility witnesses and the weight to be given to their testimony. JICivil § 215. of Wis (Approved in Collier v. State, 30 Wis. 2d 101, 107, 140 N.W.2d 252 (1966). See also, Shawver v. Roberts Corp., 90 Wis. 2d 672, 681, 280 N.W.2d 226 (1979) (the credibility of witnesses and the weight given to their testimony are matters left to the jury s judgment). ¶37 As the Supreme Court stated in Wolff v. McDonnell, 418 U.S. 539 (1974), the right of access to courts "assures that no person will judiciary be denied Penterman rights". and Kamnik opportunity concerning allegations constitutional the to present violations 418 U.S. remain free at 579 to of to fundamental (emphasis present the added). their claim regardless of whether their discovery is hampered. SUBSTANTIVE DUE PROCESS ¶38 Penterman and Kamnik also argue that Dasho s conduct on their farm resulted in a deprivation of their property in violation of their right to substantive due process. Specifically, Penterman and Kamnik maintain that Dasho deprived them of their rights to use and enjoyment of the farm property by, among other things, (1) failing to follow or employ proper procedures attributing for the identifying and detected stray measuring voltage stray to voltage, on-farm (2) wiring problems or faulty equipment when he knew or should have known such information was false, and (3) conspiring with WEPCo to 19 No. 96-0164 conceal evidence of utility-caused stray voltage on the farm. Petitioners' Brief at 10. ¶39 The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving any person of life, liberty, or property without due process of law. interpreted the constitutional The Supreme Court has guarantee of due process to protect both procedural and substantive rights. See Zinermon v. Burch, 494 U.S. 113, 125 (1990). the Due Process Clause The substantive component of protects individuals from certain arbitrary, wrongful actions regardless of the fairness of the procedures used to implement them. Id. (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). ¶40 In evaluating a substantive due process claim, the threshold inquiry is whether the plaintiff shows a deprivation of a liberty or property interest protected by the Constitution. See Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (citing Regents v. Roth, 408 U.S. 564, 569 (1972)). To determine whether a property interest is protected by the Fourteenth Amendment, courts must look whether state law recognizes and protects that interest. Riedy v. Sperry, 83 Wis. 2d 158, 164 (1978). to See Property interests . . . are not created by the 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. . . . ¶41 Roth, 408 U.S. at 577 (1972). As Dasho concedes, it is well settled that the rights of ownership and use of property have long been recognized by 20 No. 96-0164 10 this state. Respondent's Brief at 9. See State ex rel. Carter v. Harper, 182 Wis. 148, 152 (1923). however, that the due process It is equally clear, clause does not protect all deprivations of property rights, but only those deprivations which were the result of some governmental action. Cospito v. Heckler, 742 F.2d 72, 81 (3rd Cir. 1984), cert. denied, 471 U.S. 1131 (1985). ¶42 As we read the amended complaint, however, the plaintiffs do not really contend that Dasho has deprived them of their right to enjoy and use their property. Penterman and Kamnik have already conceded that Dasho did not cause the stray voltage. Despite substantive allegation due is, their process at attempt violation, bottom, another to make out this third claim for a claim of constitutional deprivation of information for use at trial against WEPCo. ¶43 In an attempt to make a substantive due process claim, Penterman and Kamnik cite Hearn v. City of Gainesville, 688 F.2d 1328 (11th Cir. 1983) for the proposition that the deprivation of a person s property interest by a government official who intentionally reports false information is a violation of the person s substantive due process rights. Petitioners' Brief at 30. 10 The court of appeals misconstrued Penterman and Kamnik's argument when it stated that "mere property interests are not subject to substantive due process claims." Slip op. at 10. We agree with the appellate court that substantive due process protection has traditionally been afforded to liberty interests, such as marriage, family, procreation, and bodily integrity. Nonetheless, we do not take the court of appeals decision to mean that the right to enjoy and use personal property is not subject to constitutional protection. 21 No. 96-0164 ¶44 In Hearn, a city of Gainesville employee, sued the city and the city s personnel director after being laid off. Hearn claimed that the decision to eliminate his position was merely a pretext and that the personnel director s dislike for him was the actual impetus for his termination. Hearn alleged that the personnel director Id. at 1332. gave the city commissioner false information regarding the workload in Hearn s department to cause the city to eliminate his position. 1332. Id. at The court concluded that, under Florida law, Hearn had a property interest in his continued employment. The court also upheld the jury's determination that the personnel director s animosity toward Hearn was the sole cause of his termination. Id. at 1333. ¶45 Penterman and Kamnik contend that Hearn is analogous to the instant case. We disagree. In Hearn, the personnel director s intentional understating of the departmental workload was the direct and sole cause of the employee s property rights deprivation. Presumably, Hearn would not have lost his position absent the false information. the stray Kamnik s voltage loss of was use and Dasho s conduct in results did cause not the See id. at 1332. direct enjoyment supervising the stray and source of of their reporting voltage. As In this case, Penterman farm and property. WEPCo's test Penterman and Kamnik acknowledged at oral argument, at most, Dasho s conduct merely caused the continuation of the property loss. 22 The Hearn No. 96-0164 decision is not, therefore, closely analogous to the facts 11 before us. ¶46 Without providing closely analogous case support for his claim that the continued deprivation of a property interest by a state actor violates a person s substantive due process rights, Penterman has failed to show that Dasho knew or should have known that his falsification and concealment of evidence of stray rights. voltage violated Penterman s substantive due process We, therefore, conclude that Penterman and Kamnik have failed to overcome Dasho s qualified immunity defense as their substantive due process claim. EQUAL PROTECTION ¶47 made a Finally, we consider whether Penterman and Kamnik have sufficient showing of a clearly established right to equal protection, such that a reasonable official in Dasho's position would have known his conduct violated that right. ¶48 Under the Equal Protection Clause of the Fourteenth Amendment, a jurisdiction therefore, state the must may equal treat not deny protection all similarly 11 any of person the within laws. situated persons its States, alike. Although Penterman and Kamnik cite a number of cases to establish a substantive due process violation, we read those cases as merely establishing that property rights, like those asserted here, can merit constitutional protection. We do not read those cases as establishing, by closely analogous case law, that Dasho's falsification and concealment of evidence of stray voltage constituted a deprivation of Penterman and Kamnik's right to substantive due process. See, e.g., Board of Regents v. Roth, 408 U.S. 564 (1972); DeBlasio v. Zoning Bd. of Adjustment for Twp. of West Amwell, 53 F.3d 592 (3d Cir. 1995); Noranda Exploration, Inc. v. M.E. Ostrom, 113 Wis. 2d 612, 335 N.W.2d 596 (1983). 23 No. 96-0164 City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985). ¶49 Traditionally, we have recognized two types of equal protection claims. discrimination group. based See, e.g., The on first membership involves in a intentional particular class or State v. Chosa, 108 Wis. 2d 392, 395-97, 321 N.W.2d 280 (1982). The second involves challenges to legislation alleged to make irrational and arbitrary classifications. See, e.g., State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995). In this case, Penterman and Kamnik do not contend that their equal protection claim falls within either of these generally recognized theories. ¶50 Penterman and Kamnik, however, argue that their claim falls within a third type of equal protection claim recognized by the Seventh Circuit in Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995). In Esmail, a liquor dealer, Esmail, brought a § 1983 claim against the city mayor, maintaining that the mayor violated his equal protection rights by refusing to renew Esmail s liquor licenses due to a deep-seated animosity toward him. Id. at 177-78. In his complaint, Esmail alleged that the mayor denied his two applications for liquor licenses for the sole and exclusive purpose of exacting retaliation and vengeance against Esmail due, in part, to Esmail s success in getting an earlier revocation changed to a brief suspension. maintained that Esmail s previous violations, list examples of the of Id. at 178. license Esmail s where order had been complaint mayor 24 had his liquor license Although the mayor denied provided renewed because an of extensive other license No. 96-0164 applications by applicants serious violations. ¶51 who had been charged with more Id. at 178. In finding that Esmail had sufficiently stated a claim under § 1983, the Seventh Circuit rejected the district court s conclusion that Esmail s complaint failed to state a claim because it did not allege that other liquor dealers, who were not subject to vindictiveness or animosity, received their license renewals at the same time that Esmail s application had been denied. a complaint Id. at 179 (emphasis added). containing such extensive The court found that factual allegations, despite failing to list the dates of the infractions by the other liquor dealers, was sufficient to indicate that the mayor treated Esmail differently than similarly situated persons. See id. at 179-80. ¶52 Unlike Esmail, Penterman and Kamnik do not claim that they were treated differently than other persons who requested Dasho s assistance in dealing with stray voltage problems. In fact, Penterman and Kamnik allege that Dasho s conduct was part of a continuing conspiracy with WEPCo to deprive Wisconsin farmers, including Penterman and Kamnik, of evidence necessary to support recovery of compensatory damages in lawsuits against WEPCo. To establish that Dasho knew or should have known that by concealing and falsifying evidence of stray voltage on the Penterman/Kamnik farm, he violated a clearly established right of equal protection, Penterman and Kamnik must demonstrate that they were singled out as members of a particular class or as individuals. See Albright v. Oliver, 975 F.2d 343, 348 (7th Cir. 1992), aff d, 510 U.S. 266 (1994) (to state an equal protection 25 No. 96-0164 claim, a plaintiff, although a member of a class with only one member, must be singled out because of his membership in the class). ¶53 Penterman and Kamnik do not allege that they treated differently than other persons similarly situated. were We therefore conclude that they have failed to make a sufficient showing of a violation of a clearly established right to equal protection, such that a reasonable official in Dasho s position would have known his conduct violated that right. ¶54 For all of the foregoing reasons, we conclude that Penterman and Kamnik have not met their burden to sufficiently show a violation of clearly established constitutional rights, such that a reasonable official in Dasho's position would know, or should have known, that his conduct violated those rights. Dasho is entitled to qualified immunity against these claims. By the Court. The decision of the court of appeals is affirmed. 26
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