Opposition Brief — Felder v. Casey

>. Supreme Court, U.S,

{ FILED

OCT 21 1987

No. 87-526 JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1987

BOBBY FELDER,

DUANE CASEY, et al

Ri »p Mae nts,

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE WISCONSIN SUPREME COURT

Grant F, Laneciey

Milwaukee City Attorney

Room 800—City Hall

200 East Wells Street

Milwaukee, Wisconsin 53202

(414) 278-2601

Attorney for Respond nts

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

an

i

TABLE OF CONTENTS

| TABLE OF AUTHORITIES

4 STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT 2. m

I. THE EXISTENCE OF A SPLIT OF AUTHOR-

ITY AMONG STATE COURTS OF LAST RE-

SORT DOES NOT FORM THE BASIS FOR

THE GRANTING OF THE WRIT

Il. THE WRIT SHOULD BE DENIED BECAUSE

THE DECISION BELOW DOES NOT RAISE

IMPORTANT ISSUES IMPLICATING ES-

TABLISHED PRINCIPLES OF FEDERAL-

SEITE shaieiihenseibinnteeetnionermmeninmimeeinentntnaninets

Ill. THE WRIT SHOULD BE DENIED BECAUSE

THE DECISION OF THE WISCONSIN SU-

PREME COURT DOES NOT CONFLICT WITH

PRIOR DECISIONS OF THIS COURT RE-

QUIRING STATE COURTS THAT ENTER-

TAIN FEDERALLY-CREATED ACTIONS,

INCLUDING SEC, 1983 ACTIONS, TO APPLY

THE ENTIRE FEDERAL CAUSE OF AC-

TION WITH ALL ITS REMEDIAL ATTRIB-

UTES .

. THE WRIT 1 SHOULD BE DENIED BECAUSE

THE DECISION OF THE WISCONSIN SU-

PREME COURT IS NOT IN CONFLICT WITH

PRINCIPLES DEVELOPED BY THIS COURT

IN CONSTRUING SEC. 1983 8

Se

ee ain DE =) ao Pal at eS ee ees ~ee er TS 4 a ae a = i

Re ee! par ee 4 ‘Pegs 1 it gee 3d - aad

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TABLE OF AUTHORITIES

" Pages

ASES:

Clark v. Indiana Dept. of Public Welfare, 478 N.E.2d

699, (Ind. Ct. —_ 1985). cert. denied, 106 S.Ct.

2893 (1986) . sctemttsinsinaiteciam an 1,6, 11

423 South Salina Street v. City of me’ 68 N.Y.2d

474, 503 N.B.2d 63, 410 N.Y.S.2d 507 _— senate

dismissed, 107 S.Ct. 1880 (1987) .. ens

Free v. Bland, 369 U.S. 663 (1962) senna s

vr

Gibbons v. Ogden, 22 U.S. 1 (1824) . a ae

Gutter v. Seamandel, 103 Wis.2d 1, 308 N.W.2d 403

Harte v. Eagle River, 45 Wis.2d 513, 173 N.W.2d

683 (1970) . cae ee paca *, = ceacanioe i

Kramer v. Horton, 128 Wis.2d 404, 383 N.W.2d 54

Kurtz v. City of Waukesha, 91 Wis.2d 103, 280 N.W.2d

i ) | eS Ba

Maine v. Thiboutot, 448 U.S. 1 (1980) 0 5 q

Mills v. County of Monroe, 59 N.Y .2d 307, 464 N.Y-S.

2d 709, 451 N.E.2d 456, cert. denied, 464 U.S. 1018

(1983) . ccniatetinaiiaieal secoaebilaeial a

Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982). 5

Patsy v. Board of Reagents is the State of Florida,

457 U.S. 496 (1982) . mee niieees ae

Patterman v. Whitewater, 32 Wis.2d 350, 145 N.W.2d

705 (1966) _.. nssnensestnetnsiniicsniassimniaamm

Perez v. Campbell, 402 U.S. 637 (1970) : 8

Ridgway v. Ridgway, 454 U.S. 46 (1981) 8

Robertson v. Weqman, 436 U.S. 584 (1978) 10

ill

TABLE OF AUTHORITIES—Continued

Pages

Thompson v. Village of Hales Corners, 115 Wis.2d

DBO, B40 N.W.2e TOS (1983) nnn cccccececccceeeseeeneeenesB, 7, 8, 10

Wilborn v. City of Tulsa, 721 P.2d 803 (Okla. 1986)... i)

Williams v. Horvath, 16 Cal.3d 834, 548 P.2d 1125,

129 Cal. Bptr. 453 (1976) ....................................... . i)

Wilson v. Garcia, 471 U.S. 261 (1985) 00. 13

FEDERAL CONSTITUTIONAL PROVISIONS:

Article VI, clause 2 .............. Te al i

Tenth Amendment (Article X) 00000... dian

FEeperaAL STATUTES:

i sseeneeveveeennerenvoen .

a U3. See. 1963 6, 7, 8, 9, 10, 11, 123,13

I ecanenenenernereneesecsecneeseces 7

WISCONSIN STATUTES:

Ch. 63, Laws of 1981 ww... cas 6

Ch, 285, Laws of 1977 ........ ae be 4

Bes. 650.00, State... Say

See. 893.80(1), Stats. .. | 4,6,11, 12,15

See, 893.80(1)(a), Stats. | ~ @

Sec, 893.80(1)(b), Stats. _. an ae

See. 893.80(3), Stats. 7 6

STATEMENT OF THE CASE

Respondents accept Petitioner’s statement of the case,

as supplemented by the following information concerning

the decision by the Wisconsin Supreme Court. Respon-

dents further accept the Appendix of Petitioner, and will

make reference thereto in the same manner employed by

Petitioner.

In its decision, the Wisconsin Supreme Court care-

fully analyzed and obviously replied heavily upon the deci-

sions of two other state appellate courts, from Indiana and

New York, wherein a state notice of claim statute was held

applicable to a federal cause of action brought in state

court. In diseussing Clark v. Indiana Dept. of Public

Welfare, 478 N.E.2d 699 (Ind. Ct. App. 1985), cert. denied,

106 S. Ct. 2893 (1986), the Wisconsin Supreme Court ac-

cepted the Clark court’s position that such a claim stat-

ute

is a procedural precedent which must be fulfilled

before filing suit in state court... Because it is a pro-

cedural precondition to sue, it overrides the procedural

framework of See. 1983 when the litigant chooses a

state court forum. 478 N.F.2d at 702 (citations

omitted). {A-10]

Similarly, the Wisconsin Supreme Court quoted the

New York decision, Wills v. County of Monroe, 59 N.Y.2d

307, 464 N.Y.S.2d 709, 451 N.E.2d 456, cert. denied, 464

U.S. 1018 (1983), wherein the New York Court of Appeals

stated:

Although Congress established no timeliness or notice

requirements to apply to section 1981 actions brought

in Federal court, these courts have been instructed

that, when interstices or voids oceur in the Federal

law, they should borrow the applicable State rule of

law so long as it is not ‘inconsistent with the Constitn-

tion and laws of the United States’. ... This court

... does not find that the State’s notice requirements

are antithetical to the poliey underlying the civil

rights laws. 59 N.Y.2d at 309-310, 451 N.E.2d at 457

(quoting 42 U.S.C. See. 1988; case citations omitted).

[| A-10]

The Wisconsin Supreme Court also discussed its prior

decisions on the beneficial purposes served by See. 893.80,

Stats., referring to Patterman v. Whitewater, 32 Wis 2d

350, 145 N.W.2d 705 (1966) and Harte v. Eagle River, 45

Wis. 2d 513, 173 N.W.2d 683 (1970). The Court stated:

It has been said that the primary purpose of a notice

of claim statute is to give the municipality the oppor-

tunity to attempt to compromise the claim and effect

settlement before the parties are foreed to proceed

with a lengthy or costly lawsuit. Patterman, 32 Wis.

2d at 357. | A-9 |

The Wisconsin Supreme Court went on to point out

that

The remedial and deterrent purposes underlying

See. 1983 actions are not frustrated simply because a

state court litigant must abide by state court proce-

dures. The notice of claim statute does not operate

to limit the amount that a piaintiff might recover for

a violation of his or her civil rights. {footnote omitted |

Nor does the notice requirement operate to preclude a

plaintiff’s possibility for recovery .... | A-12]

Finally, it should be noted that, having concluded that

Sec. 893.80, Stats., is a condition precedent to the bringing

of a federal civil rights cause of action in a Wisconsin

state court, the Wisconsin Supreme Court then concen-

trated its attention upon whether Petitioner Felder had

complied with the notice of injury portion of the statute,

as set forth in Sec. 893.80 (1)(a), Stats., and coneluded that

Felder had not.

Accordingly, the court was not called upon to decide

whether Felder had complied with the second portion of

that statute, i.e., See. 893.80 (1)(b), Stats., with respect

to the filing of an ‘‘itemized statement of the relief

sought.’’ The record in this case is completely devoid of

any such filing.

=

REASONS FOR DENYING THE WRIT

I. THE EXISTENCE OF A SPLIT OF AUTHORITY

AMONG STATE COURTS OF LAST RESORT DOES

NOT FORM THE BASIS FOR THE GRANTING OF

THE WRIT

The narrow issue decided by the Wisconsin Supreme

Court in the instant action was whether, in balancing the

interests of all concerned, the procedural aspects of See.

895.80 (1), Stats., should apply as a condition precedent

to bringing a federal cause of action in a Wisconsin state

court in the same manner as it applies to any other cause

of action.

That decision is founded in the hornhook principle that

“While the Constitution vests in Congress ‘the power

to prescribe the basic procedural scheme under which claims

may be heard in federal courts,’ ’’ Kramer v. Horton, 128

Wis. 2d 404, 417, 383 N.W.2d 54 (1986), quoting Patsy rv.

Board of Regents, 457 U.S. 496 at 501 (1982), the Tenth

Amendment to the Constitution of the United States ‘‘re-

serves to the state legislatures and state courts the power

to prescribe the procedural scheme under which claims may

be heard in state court."’ Aramer v. Horton, 128 Wis. 2d

at 417.

The Tenth Amendment te the Constitution of the

United States provides that ‘‘The powers not delegated

to the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively,

or to the people.’’

As the Wisconsin Supreme Court pointed out in its

decision, while Wisconsin’s notice of claim statute was

limited, in previous versions, only to tort actions, the stat

ute was amended (and ti.ereby expanded) by passage by

the Wisconsin legislature of Chapter 285, Laws of 1977,

to apply to any cause of action | A-Y).

Accordingly, that act represents a conscious decision

on the part of the Wisconsin legislature to require, as a

matter of sound public policy and judicial economy, com-

pliance with the notice of claim provisions of See. 03.5)

(1), Stats., as a condition precedent to the bringing of any

action in state court.

Given the judicially recognized purpose of the statute,

i.e., to ‘‘afford the municipality an opportunity to compro-

mise the claim and settle it without a costly and expensive

lawsuit,’’ Gutter v. Seamandel, 103 Wis. 2d 1, 9, 308

N.W.2d 403 (1981), such a requirement can hardly be said

to be inconsistent with the Constitution and the laws of

the United States. Notice to the municipality of an al-

leged injury, coupled with a demand for relief which pro-

vides the municipality with an opportunity to settle the

claim prior to litigation, is clearly not, as the New York

cr

Court of Appeals agreed, ‘‘antithetical to the policy

underlying the civil rights laws.’’ Mills v. County of

Monroe, 451 N.E.2d at 457. Indeed, providing such a pro-

cedural framework may well foster early resolution of

such claims, certainly a laudable result beneficial to both

the claimant and the municipality involved.

As Petitioner correctly points out, there has been a

<plit among state courts of last resort on the issue of

viether a state notice of claim statute should apply to

eral civil rights eases brought in state court. Cali-

fornia. in Williams v. Horvath, 16 Cal.3d 834, 548 P.2d

1125, 129 Cal. Ry

A n. 102 Idaho 795, 654 P.2d S88 (1982), and Oklahoma,

n Wilborn v. City of Tulsa, 721 P.2d 803 (Okla. 1986), have

analyzed their state statutes and concluded that such stat-

tr. 453 (1976). Idaho, in Overman v.

ites are inapplicable to federal actions brought in their

state courts.

On the other hand, two states, in addition to Wiscon-

sin, have now held, based upon their own analysis of their

state notice of claim statutes, the policies behind such stat-

utes, the impact of requiring compliance with such stat-

utes, and the applicable caselaw, that such statutes are not

violative of the Constitution or the laws of the United

States.

As indicated earlier, the New York Court of Appeals

upheld the applicability of a notice of claim requirement

to a state court action under 42 U.S.C. See. 1981 in Mills

vr. County of Monroe, 59 N.Y %d 307, 451 N.B.2d 456, 464

N.Y.S.2d 486, cert. denied, 464 U.S. 1018 (1983). That

same court also applied the notice of claim requirement

to a state court Sec. 1983 action in 423 South Salina Street

6

vr. Cty of Syracuse, 68 N.Y.2d 474, 503 N.E.2d 63, 410

\-Y¥.S.2d 507 (1986), appeal dismissed, 107 S.Ct. 1880

(1987).

More recently, in an extremely well reasoned opinion,

the Ind‘ana Court of Appeals upheld the applicability of

the Indiana state tort claim act notice provision in Clari

v. Indiana Dept. of Public Welfare, 478 N.E.2d 699 (Ind.

Ct. App. 1985), cert. denied, 106 S.Ct. 2893 (1986).

Clearly, the procedural requirement of each such

notice of claim statute, and the impact of such requirement

on the viability of the See. 1985 claim in the particular

state, is unique to that state. In that respect, this Court

should note that while compliance of the notice of claim

statute. Sec. 893.80 (1), Stats., is, by virtue of the Wiscon-

sin Supreme Court’s decision in the instant action, a con-

dition precedent to state court Sec. 1983 actions in Wiscon-

sin, the Wisconsin Supreme Court has also opined that

the statutory recovery limit set forth in See. 893.80 (3),

Stats., ($25,000, raised to $50,000 by ch. 63, Laws of 1981)

is not applicable to See. 1983 actions in Wisconsin state

courts, since ‘‘the purpose behind See. 1983 would be. . .

defeated if deprivation of constitutional rights was not

fully compensated because of a state statutory recovery

eeiling.”” Thompson v. Village of Hales Corners, 115 Wis.

2d 289, 298, 340 N.W.2d 704 (1983).

In analyzing the issue, the Thompson court stated:

State law cannot be used where its application

would frustrate federal policies. The policy behind

sec. 1983 civil rights actions is one of compensation

for act.4] injury. Insofar as the state recovery ceil-

ing prevents realization of that policy, it must give

way. We conclude that the limitation on municipal

liability set forth in sec. 893.80, Stats. has no applica-

tion to a damage award under 42 U.S.C. see. 1983.

The Thompson court also upheld the awarding of

attorney’s fees pursuant to 42 U.S.C. See. 1988 to a pre-

vailing plaintiff in a See. 1983 action. Thompson v. Village

of Hales Corners, 115 Wis.2d at 309.

Accordingly, ii is apparent that the Wisconsin Su-

preme Court not only recognized the federal policy behind

See. 1983, but has also concluded that the procedural no-

tice of claim requirements of See. 893.80, Stats., do not

frustrate that policy.

However, since each state's statutes on notice of claim

varies, both in procedural requirements and iinpact on the

aforementioned federal policy, the existence of a split in

authority in state courts of last resort does not, a priori,

result in the conclusion that the split must be reconciled.

Rather, it merely serves to recognize the proposition that

state appellate courts, rather than federal courts, are the

best forums for interpretation of state statutes. While

this Court may decide to review the decision of the Wis-

consin Supreme Court in the case at bar on the issue of

whether applicability of Wisconsin’s notice of claim stat-

ute frustrates the policy behind Sec. 1983 actions, it should

not do so merely because of the aforementioned split of

authority.

II. THE WRIT SHOULD BE DENIED BECAUSE THE

DECISION BELOW DOES NOT RAISE IMPOR-

TANT ISSUES IMPLICATING ESTABLISHED

PRINCIPLES OF FEDERALISM

Petitioner has cited a number of authorities for the

proposition that a number of federal courts of appeal have

rejected the application of state notice of claim require-

ments to Sec. 1983 litigation (Petitioner’s Brief at p. 14).

However, the cited cases are irrelevant to the issue at bar,

since they stand for the proposition, in general terms,

that state notice of claim requirements are inapplicable

to Sec. 1983 litigation in federal court. Respondents have

not in the instant action suggested the contrary. The is-

sue at bar is whether a state notice of claim requirement

is applicable to See. 1983 litigation in state court.

In Thompson v. Village of Hales Corners, 115 Wis.2d

289, 296-297 (1983), the Wisconsin Supreme Court dis-

cussed the Supremacy Clause of the United States Con-

stitution, stating:

Article VI, clause 2 of the United States Con-

stitution provides: ‘‘[T]his constitution, and the

Laws of the United States which shall be made in pur-

suance thereof ... shall be the supreme law of the

land.’’ The United States Supreme Court has inter-

preted the Supremacy Clause to require that ‘‘any

state law, however clearly within a state’s acknowl-

edged power, which interferes with or is contrary to

federal law, must yield.’’ Free v. Bland, 369 U.S. 663,

444 (1962); Gibbons v. Ogden, 22 U.S. 1, 210-211

(1824). In considering the validity of a state act un-

der the Supremacy Clause, the question is whether

the challenged statute ‘‘stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress,’’ Perez v. Campbell, 402 U.S.

637, 649 (1970) or results in ‘‘frustration and erosion

of the congressional policy embodied in federal

rights.”’ Ridgway v. Ridgway, 454 U.S. 46, 54 (1981).

Given the many laudable benefits to both claimant

and governmental entity which compliance with the no-

9

tice of claim statute provides, including, without limita-

tion, the opportunity to promptly compromise the claim

in a non-adversarial setting, without the expense and in-

evitable delays which accompany litigation, it is difficult

to conceive of how such a requirement of compliance ‘‘frus-

trates’’ federal policy, or would serve to force plaintiffs

out of the state court system and into the federal courts.

This is particularly true because in Wisconsin, the

statutory recovery limit and Sec. 1988 attorney’s fees is-

sues have already been resolved in plaintiff’s favor. Ac-

cordingly, the kind of concern expressed by Justice Bren-

nan on behalf of the majority in Maine v. Thiboutot, 448

U.S. 1, 11 n.12 (1980) that ‘‘[i]f fees were not available

in state courts, federalism concerns would be raised be-

cause most plaintiffs would have no choice but to bring

their complaints concerning state actions to federal courts”’

is not a legitimate argument.

There was no suggestion in the decision of the Wis-

consin Supreme Court in the instant ease, nor ean there

be, that the court was unwilling or unable to apply the

substantive aspects of Sec. 1983 law to any such cases

brought in the Wisconsin state court system. Indeed, the

eourt’s history proves the contrary.

Accordingly, this Court should not grant the Peti-

tioner’s writ because of some hypothetical suggestion

that, in the future, the decision will encourage ‘‘the adop-

tion by state courts of policies inhospitable to plaintiffs

who prefer to litigate their See. 1983 claims in state

courts.’’ (Petitioner’s Brief at p. 15).

10

III. THE WRIT SHOULD BE DENIED BECAUSE THE

DECISION OF THE WISCONSIN SUPREME

COURT DOES NOT CONFLICT WITH PRIOR DE-

CISIONS OF THIS COURT REQUIRING STATE

COURTS THAT ENTERTAIN FEDERALLY-CRE-

ATED ACTIONS, INCLUDING SEC. 1983 ACTIONS,

TO APPLY THE ENTIRE FEDERAL CAUSE OF

ACTION WITH ALL ITS REMEDIAL ATTRI-

BUTES

Petitioner’s third argument in favor of granting the

writ is based upon the false premise that the decision of

the Wiseonsin Supreme Court below fails to apply the

entire federal cause of action (See. 1983) with all its re-

medial attributes. The fact that the Wisconsin Supreme

Court described the state notice of claim requirement as

procedural and that petitioner disagrees with that char-

acterization does not render the requirement substantive,

nor does it *‘limit access to state courts by litigants.’’

(Petitioner’s Brief at p. 19).

The Wisconsin Supreme Court has long recognized

that state courts do have subject matter jurisdiction over

claims based upon See. 1983. Kurtz v. City of Waukesha,

91 Wis.2d 108, 108, 280 N.W.2d 757 (1969), and that

‘*{s]tate law cannot be used where its application would

frustrate federal policies. The policy behind Sec. 1983

Civil Rights Actions is one of compensation for actual

injury.’’ Thompson v. Village of Hales Corners, 115 Wis.

2d 289, 304 (1983).

As pointed out earlier in Argument I, infra, this

Court has stated that state procedural statutes should be

utilized as long as they are ‘‘not inconsistent with the

Constitution and Laws of the United States.’’ Robertson

v. Weqman, 436 U.S, 584, 588 (1978).

ll

Also, the Wisconsin Supreme Court’s characteriza-

tion of See. 893.80(1), Stats., as procedural! is not unique.

In Clark v. Indiana Dept. of Welfare, 478 N.E.2d 699

(1985), a decision by the Court of Appeals of Indiana,

First Distriet, the court stated at p. 712:

The ITCA [Indiana Tort Claims Act] notice pro-

vision is not a statute of limitation [citation omitted].

Rather, it is a procedural prerequisite which must be

fulfilled before filing suit in state court [citation

omitted]. Because it is a procedural precondition to

sue, it overrides the procedural framework of See.

1983 when a litigant chooses a state court fornm [ci-

tations omitted]. Despite the holding in Bell we find

the 180 day notice of claim provision applies to See.

1983 actions brought in state court [citation omitted].

Not only was a petition for rehearing denied (July

10, 1985) in that ease, but certiorari was denied by this

Court, Clark v. Indiana Dept. of Public Works, 106 S.Ct.

2893 (1986).

Compliance with the requirement of See. 895.80(1),

Stats., much like compliance with the filing and service

requirements for initiation of a lawsuit in Wisconsin state

courts, is a well-founded procedural rule which plaintiffs

should be required to follow. Where followed, the doors

to the courthouse swing open, and the substantive aspects

of the federal cause of action under See. 1983, with its

panoply of remedial attributes, is available to a plain-

tiff in the same way, and to the same extent, that they are

available in federal court.

12

IV. THE WRIT SHOULD BE DENIED BECAUSE

THE DECISION OF THE WISCONSIN SUPREME

COURT IS NOT IN CONFLICT WITH PRINCIPLES

DEVELOPED BY THIS COURT IN CONSTRUING

SEC. 1983

Petitioner’s final argument is based in part upon the

conclusion that this Court, in deciding in Patsy v. Board

of Regents of the State of Florida, 457 U.S. 496 (1982),

that exhaustion of state administrative remedies should

not be required as a prerequisite to bringing an action

pursuant to See. 1983, was somehow doing so because to

require such exhaustion prior to commencement of liti-

gation would deny plaintiffs immediate access to judicial

forums.

However, a more careful reading of the Patsy decision

reveals that this Court engaged in a thorough analysis

of Congressional intent on the exhaustion of administra-

tive remedies issue, and after recognizing the obviously

difficult questions concerning the design and scope of

such an exhaustion requirement, concluded

These and similar questions might be answered swift-

ly and surely by legislation, but would create costly,

remedy-delaving, and court-burdening litigation if

answered incrementally by the judiciary in the con-

text of diverse constitutional claims relating to thou-

sands of different state agencies.

Patsy v. Board of Regents of the Siate of Florida, 457

U.S. 496 at 514.

Similarly, in the instant case, the Wisconsin Supreme

Court looked to the intent of the Wisconsin legislature in

passing the most recent amendment to See. 893.80(1),

Stats., whereby the scope of the notice of claim require-

13

ment was expanded to all causes of action. Having easily

discerned to intent of the legislature, the court merely

enunciated it. Thereafter, having determined that re-

quiring compliance with Sec. 893.80(1), Stats., would not

frustrate the federal policy underlying Sec. 1983, the court

was properly able to rule as it did.

With respeet to Petitioner’s statute of limitations

argument, it should be noted that while the Wisconsin

Supreme Court was asked in this case to determine which

Wisconsin statute of limitations was applicable to See.

1983 actions [A-5], in the light of this Court’s decision

in Wilson v. Garcia, 471 U.S. 261 (1985), the court declined

to do so, deciding the case on the notice of claim issue.

Undoubtedly, the Wisconsin Supreme Court will be called

upon, in some late ease, to decide which statute of limi-

tations will apply to all See. 1983 cases in Wisconsin.

However, See. 893.80(1), Stats., is not a statute of limi-

tations. It is a procedural notice of claim provision, one

which any claimant should be able to comply with as easily

as such claimant might be able to draft a See. 1983 plead-

ing to file in court.

Petitioner appears to be arguing inconsistent posi-

tions, ie., that a plaintiff should, on one hand, be allowed

to immediately rush into state court with a Sec. 1983 ae-

tion, and yet that the same plaintiff is unable to provide the

municipality with the factual bases for his claim (notice

of claim). Such a position defies logic.

This Court should recognize that Wisconsin’s notice of

claim requirement, as set forth in See. 893.80(1), Stats.,

is consistent with the principles developed by this Court

in construing Sec. 1983, as discussed in this and earlier

sections of this argument.

—_—_— OU 1D —

14

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari to review the judgment and opinion of the Wis-

econsin Supreme Court should be denied.

Respectfully submitted,

October, 1987 Grant F. LANGLEY

Milwaukee City Attorney

Room 800—City Hall

200 East Wells Street

Milwaukee, Wisconsin 53202

(414) 278-2601

Attorney for Respondents