Jane Hemberger v. Jo Ann Bitzer

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SUPREME COURT OF WISCONSIN Case No.: 96-2973 Complete Title of Case: Jane Hemberger, Plaintiff-Respondent, v. Jo Ann Bitzer, Alice Ruhland and Al Bennin, Defendants-Appellants, Ed Ringgenberg, Kathy Plehn and Douglas Maxwell, Defendants. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: March 13, 1998 December 3, 1997 Circuit Dane P. Charles Jones JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendants-appellants there were briefs by Michael J. Modl and Axley Brynelson, Madison and oral argument by Michael J. Modl. For the plaintiff-respondent there was a brief by Robert J. Gingras, Paul A. Kinne and Gingras & Cates, S.C., Madison and oral argument by Steven J. Schooler of Lawton & Cates, S.C., Madison. No. 96-2973 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-2973 STATE OF WISCONSIN : IN SUPREME COURT FILED Jane Hemberger, MAR 13, 1998 Plaintiff-Respondent, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Jo Ann Bitzer, Alice Ruhland, and Al Bennin, Defendants-Appellants, Ed Ringgenberg, Kathy Plehn and Douglas Maxwell, Defendants. APPEAL from a decision and order of the Circuit Court for Dane County, P. Charles Jones, Judge. ¶1 WILLIAM A. BABLITCH, Affirmed. J. The narrow question presented on appeal is whether 42 U.S.C. § 1983 claims brought in Wisconsin are governed by a three- or six-year statute of limitations. defendants The plaintiff, Jane Hemberger, claimed that the violated her rights to free speech when they allegedly retaliated against her by terminating her employment. She brought termination. six-year this action approximately four years after the Because Wis. Stat. § 893.53 (1991-92),1 providing a statute of limitations, 1 is Wisconsin s residual All references to Wisconsin Statutes are to the 1991-92 version unless otherwise noted. 1 No. 96-2973 personal injury statute of limitations, Hemberger s action was timely filed. ¶2 we conclude that Accordingly, we affirm. The facts relevant to this appeal are not in dispute. Jane Hemberger was terminated from her employment on May 23, 1989. More than four years later, on August 26, 1993, she commenced this action. by her former District, Hemberger alleged that her termination employer, through the Fitch-Rona actions of Emergency people Medical associated Service with her employer, violated her free speech rights protected by the First Amendment of the United States Constitution and secured by 42 U.S.C. § 1983 (reprinted below).2 defendants § 802.06(2), motion to determining dismiss that The circuit court denied the pursuant the to six-year Wis. Stat. statute of limitations of Wis. Stat. § 893.53 applies to actions brought under § 1983 and therefore, the plaintiff s § 1983 action was not time barred. The action proceeded to trial, and the jury found for the plaintiff against three of six defendants: JoAnn Bitzer, Alice Ruhland, and Al Bennin. The defendants timely appealed the entry of judgment against them, raising on appeal 2 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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 No. 96-2973 the issue of whether the plaintiff s § 1983 claims are timebarred. The court of appeals certified the case to this court pursuant to Wis. Stat. § (Rule) 809.61 to decide the appropriate statute of limitations in Wisconsin for claims under § 1983. ¶3 The appropriate Wisconsin statute of limitations to apply to claims brought under 42 U.S.C. § 1983, in accord with the standard set forth in Owens v. Okure, 488 U.S. 235, 249-50 (1989), is a question of statutory construction which this court reviews de novo. Hughes See v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). ¶4 The defendants §§ 893.53 and Court Appeals of 893.54, rely on legislative cases to the language history, assert that and of Wis. two § 893.54 Stat. Wisconsin (reprinted below),3 the three-year statute, is the applicable statute of limitations for actions brought under 42 U.S.C. § 1983. See Hanson v. Madison Service Corp., 125 Wis. 2d 138, 370 N.W.2d 586 (Ct. App. 1985); Kempfer v. Evers, 133 Wis. 2d 415, 395 N.W.2d 812 (Ct. App. 1986). The plaintiff, relying on statutory language and case law, asserts that § 893.53 (reprinted below),4 3 Wis. Stat. § 893.54 Injury to the person. The following actions shall be commenced within 3 years or be barred: (1) An action to recover damages for injuries to the person. (2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another. 4 Wis. Stat. § 893.53 Action for injury to character or other rights. An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred. 3 No. 96-2973 the six-year statute, is the applicable statute of limitations for actions brought under § 1983. See Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989). ¶5 Although this court has not previously addressed the specific issue presented by this case, the United States Supreme Court has given guidelines, and the Court of Appeals for the Seventh Circuit and the Wisconsin Court of Appeals have spoken on the issue. addressed We first provide a chronology of cases which have the issue of which state statute of limitations applies to actions brought under 42 U.S.C. § 1983. ¶6 In (1985), the previous statute April United holdings, of 1985, in States which limitations Wilson Supreme required most v. 471 U.S. 261 recognized that its Garcia, Court courts analogous to to apply the the state underlying 42 U.S.C. § 1983 claim, had resulted in confusion, inconsistency, and time-consuming litigation. See 471 U.S. at 272-73. (Annot., 45 A.L.R.Fed. 548, 554 (1979) provides a comprehensive annotation of cases that have resulted in uncertainty, confusion, and lack of uniformity in selecting the applicable statute of limitations in § 1983 suits. Because the characterization Court of determined § 1983 claims Id. at 272 n.25). that a best fits simple, that broad statute s remedial purpose, the Court held that the most appropriate state statute of limitations applicable statute governing personal injuries. ¶7 Within weeks of the to § 1983 claims is the See id. at 272, 280. Wilson decision, the Wisconsin Court of Appeals concluded that Wis. Stat. § 893.54, providing a 4 No. 96-2973 three-year statute of limitations for injuries to the person, applied to claims brought under 42 U.S.C. § 1983. 125 Wis. 2d at 141. holdings of concluded within ¶8 the and Hanson actions brought three-year the § 893.54. Later, the court of appeals followed the Wilson that See Hanson, without under statute of discussion § 1983 must limitations and be again brought according to See Kempfer, 133 Wis. 2d at 418. In 1989, the United State Supreme Court again faced question of the appropriate statute of limitations for claims brought under 42 U.S.C. § 1983 in Owens v. Okure, 488 U.S. 235 (1989). supplied a The Court acknowledged that although Wilson clear answer in states with only one statute of limitations for all personal injury claims, confusion remained in states enumerated with one or intentional more torts other personal injuries. statutes and a of residual limitations for statute all for See Owens, 488 U.S. at 236, 241. The Court held that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions. The United States Supreme Id. at 249-50 (footnotes omitted). Court believed that the state s general or residual personal injury statute of limitations would be easily identifiable by its language and application. See id. at 247. ¶9 Since Owens no Wisconsin appellate court has published an opinion addressing the specific question of which Wisconsin personal injury statute of limitations applies to claims brought 5 No. 96-2973 under 42 U.S.C. § 1983. The Court of Appeals for the Seventh Circuit, however, relied on Owens to determine that Wis. Stat. § 893.53, which provides a six-year statute of limitations for action[s] to recover damages for an injury to the character or rights of another . . ., is Wisconsin s general or residual statute of limitations for personal injury actions. 885 F.2d at 407-409. support its limitations The court relied on three factors to conclusion for See Gray, § 1983 that the claims is appropriate six years statute under of § 893.53. First, in a case for intentional interference with contractual relations the Wisconsin Court of Appeals interpreted Wis. Stat. § 893.19(5) (1977), the predecessor to § 893.53, as the residual or general personal injury statute of limitations. See id. at 408 (referring to Segall v. Hurwitz, 114 Wis. 2d 471, 339 N.W.2d 333 (Ct. App. 1983)). The language of § 893.53 is virtually the same as the language of its predecessor, § 893.19(5). ¶10 Second, the language of Wis. Stat. § 893.53, the statute of limitations for injury to the character or rights of another except as otherwise provided, is a much broader statute than Wis. Stat. § 893.54. See Gray, 885 F.2d at 408. The broad language of the personal rights statute of limitations is also consistent with the purpose of § 1983, which is to provide a remedy for a wide spectrum of claims that include more than just bodily injury. ¶11 Id. (citing Owens, 488 U.S. at 249). Finally, the court in Gray acknowledged that Wisconsin federal district courts have, since Wilson, determined that Wis. Stat. § 893.53 was the appropriate personal rights statute of 6 No. 96-2973 limitations. See Gray, 885 F.2d at 408 (referring to Saldivar v. Cadena, 622 F. Supp. 949, 955 (W.D. Wis. 1985); Jordi v. Sauk Prairie School Bd., 651 F. Supp. 1566, 1573 (W.D. Wis. 1987); Thompson v. County of Rock, 648 F. Supp. 861, 866 (W.D. Wis. 1986)). The court in Gray also noted that the Wisconsin Court of Appeals earlier determined that the appropriate statute of limitations was three years under Wis. Stat. § 893.54. However, the court recognized that Hanson was decided before Owens and the Hanson court, therefore, did not have the benefit of the Owens analysis. ¶12 issue See Gray, 885 F.2d at 409. With this case law as a backdrop we now turn to the before questions. us. The issue is resolved by to two First, is Wis. Stat. § 893.53, the six-year statute of limitations, a general or residual statute? apply answering personal injury actions? If the If so, does it answer to both questions is yes, we are then constrained by Owens to find that the six-year statute of limitations is controlling for a cause of action under 42 U.S.C. § 1983. ¶13 The answer to the first question is easily decided from the language of the statute. The language of Wis. Stat. § 893.53 makes statute applies except it clear where that a the different 7 is period residual. is It expressly No. 96-2973 prescribed. Wis. Stat. § 893.53.5 a much broader applies to person and caused statute action[s] action[s] by the than to Wis. recover brought wrongful As noted in Gray, § 893.53 is act, to Stat. § 893.54 damages for recover neglect or which injury damages default to for of only the death another. Wis. Stat. § 893.54. ¶14 § 893.53 Wisconsin as courts Wisconsin s have also residual interpreted statute of Wis. Stat. limitations, applying it when no other statute of limitations applies. See, e.g., Segall, 114 Wis. 2d at 487; Acharya v. Carroll 152 Wis. 2d 330, 337, 448 N.W.2d 275 (Ct. App. 1989); Milwaukee Partners v. Collins Engineers, 169 Wis. 2d 355, 364, 485 N.W.2d 274 (Ct. App. 1992). Accordingly, we conclude that § 893.53 is a general or residual statute of limitations. ¶15 § 893.53, We now turn to the second question: whether Wis. Stat. the six-year statute of limitations regarding injur[ies] to the character or rights of another, pertains to personal injuries as the term is used by the Owens Court. The goal of statutory construction is to discern the legislature s intent. See Hughes, 197 Wis. 2d at 978 (citing Scott v. First State Ins. Co., 155 Wis. 2d 608, 612, 456 N.W.2d 152 (1990)). 5 The language of Wis. Stat. § 893.53 is similar to statutory language of other states cited in Owens v. Okure, 488 U.S. 235, 246 n.9 (1989) as general statutes of limitations. For example, Ala. Code § 6-2-38(1) (Supp. 1988) applies to any injury to the person or rights of another not arising from contract and not specifically enumerated. Owens, 488 U.S. at 246 n.9. 8 No. 96-2973 Although we must first look to the plain language of the statute to discern legislative intent, see Hughes, 197 Wis. 2d at 978, the language of § 893.53 does not indicate whether injuries to the character or rights of another includes personal injuries. ¶16 may If the plain language of the statute is ambiguous we turn to the statute s matter, and purpose. context, subject See Hughes, 197 Wis. 2d at 978. Before 1957 the provisions of combined in one scope, Wis. statute, history, Stat. Wis. §§ 893.53 Stat. and 893.54 § 330.19(5) providing a six-year statute of limitations. were (1955), Chapter 435, Laws of 1957, divided the statute in two sections. The legislation amended § 330.19(5) to provide a six-year statute of limitations for action[s] to recover damages for an injury to property, real or personal, or for an injury to the character or rights of another, not different arising period § 330.19(5) is (1957). on contract, expressly The 1957 except in a case prescribed. legislation where a Wis. also Stat. created Wis. Stat. § 330.205 to provide a three-year statute of limitations for an action to recover damages for injuries to the person. Wis. Stat. § 330.205 (1957). (1957) were respectively. ¶17 that Wis. personal later Sections 330.19(5) and 330.205 renumbered as §§ 893.53 and 893.54 See ch. 66, § 2, Laws of 1965. Defendants argue that this legislative history shows Stat. injuries § 893.53 because is not the a 1957 statute that legislation applies removed to all references to personal injury from Wis. Stat. § 330.19(5) (now 9 No. 96-2973 § 893.53) and created § 893.54) applicable Wis. § 330.205 personal to Stat. injuries. (now Wis. This Stat. assertion assumes that personal injury as used in Owens refers only to bodily injury. ¶18 We do not agree with that assumption. Considerable authority exists for the proposition that a personal injury encompasses not only physical injuries but also any affront to the body, reputation, liberty, or sense of enjoyment of persons. Eau Claire County v. Employers Ins., 146 Wis. 2d 101, 113, 430 N.W.2d 579 (Ct. App. 1988). Injuries to the character or rights of another, those covered by the statute of limitations of Wis. Stat. § 893.53, are also personal injuries, albeit not bodily injuries. Accordingly we conclude that § 893.53 covers personal injury actions as the phrase is used in Owens. ¶19 Defendants also argue that the court of appeals holdings in Hanson and Kempfer should control in this case. disagree. We As noted by the Court of Appeals for the Seventh Circuit in Gray, the Wisconsin Court of Appeals decided both Hanson and Kempfer without the benefit of the analysis in Owens. See Gray, 885 F.2d at 409. Even if the holdings of Hanson and Kempfer, applying the three-year statute of limitations of Wis. Stat. § 893.54 to claims brought under 42 U.S.C. § 1983, were appropriate following Wilson, the holding of Owens provides a more clear direction when, as in Wisconsin, there are several statutes of limitation for personal injury residual or general statute of limitations. 10 actions and one No. 96-2973 ¶20 six-year In sum, we hold that Wis. Stat. § 893.53, providing a statute of limitations, is Wisconsin s residual personal injury statute of limitations. is applicable to claims brought under 42 general and Therefore, it U.S.C. § 1983. Accordingly, Hanson is overruled and to the extent that Kempfer relied on Hanson, it too is overruled. Therefore, we conclude that Hemberger s action was timely filed. ¶21 The court of appeals also certified a second question to this court: whether the court of appeals may overrule or modify a previously published decision of this court when the parties dispute whether the decision should or must be overruled or modified in light of later federal law. We conclude that this question was appropriately answered by our holding in In re Marriage of Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997). Only the supreme court, and not the court of appeals, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals. Id. The court of appeals, however, is not powerless if it concludes that a prior decision of the court of appeals or the supreme court is erroneous. It may signal its disfavor to litigants, lawyers and this court by certifying the appeal to this court, explaining that it believes a prior case was wrongly decided. Alternatively, the court of appeals may decide the appeal, adhering to a prior case but stating its belief that the prior case was wrongly decided. Id. at 190 (footnote omitted). By the Court. The order of the circuit court is affirmed. 11 1

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