Opposition Brief — Lacke v. Gray

Supreme Court. U.S.

FITTED

FEB 23 bss |

No. 89-1184 er >

JOSEPH I a L,)* |

ee een |

In The

Supreme Court of the United States

October Term, 1989

———

JEROME LACKE, STANLEY KLEIN,

DAVID NIEMANN, and DIANE KOHN

Petitioners

HERYLL GRAY, f/k/a CHERYLL LENGYEL,

4

Respondent

.

ve

RESPONDENT'S BRIEF IN OPPOSITION

lO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ee

_

Counsel of Record:

ATTORNEY JEFF Scott OLSON

JULIAN, OLSON & LAsKER, S.C.

330 E. Wilson Street

Madison, Wisconsin 53703

(608) 255-6400

On Brief:

ATTORNEY A. STEVEN PORTER

25 W. Main Street

Suite 503

Madison, Wisconsin 53703

~

(608) 255-5170

i

TABLE OF CONTENTS

Page

TABLE OF CASES, STATUTES AND OTHER AU-

oa ee ere re Pee a eee erry Cree ili

ARGUMENT SUMMARY

ARGUMENT

I. THE DECISION RENDERED BY THE UNITED

STATES COURT OF APPEALS FOR THE SEV-

ENTH CIRCUIT ACCORDS WITH THE DECI-

SIONS OF THIS COURT AND DOES NOT

CONFLICT WITH DECISIONS RENDERED IN

OTHER CIRCUITS OR THE WISCONSIN SU-

PREME COURT REGARDING THE SELECTION

OF THE MOST ANALOGOUS WISCONSIN

STATUTE OF LIMITATIONS TO APPLY TO AC-

TIONS UNDER 42 U.S.C. SECTION 1983 IN

FEDERAL COURTS IN WISCONSIN .......... 4

A. The United States Court of Appeals for the

Seventh Circuit Properly Applied this

Court’s Directive, as Set Forth in Wilson v.

Garcia and Owens v. Okure, to Look to the

State’s General or Residual Statute of Lim-

itations for Personal Injury Actions When

Seeking the Most Analogous State Statute of

Limitation to Utilize in Actions Brought Un-

der 42 U.S.C. Section 1983 in Federal Courts

B. The Decision of the United State Court of

Appeals for the Seventh Circuit Is Not in

Conflict with Decisions of the Sixth or Ninth

RR ee ie re alle ale egies 4 11

C. The Court of Appeals Decision in This Case

Is Consistent With Federal Interests....... 13

TABLE OF CONTENTS -—- Continued

Page

D. The Decision of the Court of Appeals Is Not

in Conflict with the Decisions of the High-

est Wisconsin Court ..... 20.602 cs0e2eneess 16

Il. PETITIONERS FAILED :1O TIMELY RAISE BE-

LOW THE ISSUE THEY NOW RAISE CON-

CERNING THE COURT OF APPEALS

DECISION REFUSING TO PRECLUDE PLAIN-

TIFF’'S CLAIMS, AND THEY HAVE, THERE-

FORE WAIVED THAT ISSUE ........05-0055-25 17

A. Petitioners Did Not Raise Below the Question

of the Preclusive Effect of Respondent's Volun-

tary Dismissal of Her Title VII Claims in Her

Action Against the County of Dane......... 17

B. Even If Petitioner Had Raised the Issue of

the Preclusive Effect in This Action of Her

Voluntary Dismissal of Her Title VII Claims

in Her Action Against the County of Dane,

The Issue Would Not Be Ripe for Deter-

mination By This Court. ...........ds-05% 18

i. CONCLUSION ) o..c5 éceveane esses Vaeeeeeees 19

APPENDIX

ill

TABLE OF AUTHORITIES

Page

Cases CITED:

Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W. 2d

275 (App. 1989) ................055. oe:

Anderson v. Continental Inc. Co., 85 Wis. 2d 675, 271

NE A a a a g

Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977)....... 14

Bertoncini v. Schrimpf, 712 F. Supp. 1136 (N.D. Ill.

em eae wes 19

Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989) ..11, 12

Carroll v. Wilson, 787 F.2d 44 (6th Cir.), cert. denied

479 U.S. 923, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986).... 12

Del Percio v. Thornsley, 877 F.2d 785 (9th Cir. 1989)..11, 12

Emmons v. McLaughlin, 874 F.2d 351 (6th Cir. 1989) .11, 12

Felder v. Casey, 150 Wis.2d 458, 441 N.W.2d 725

(1989)

Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003 (1900) 9

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989)

EERE TE EP ewe ides ecic ss eed es 4, 6, 9, 10, 11, 12

Hanson v. Madison Service Corp., 125 Wis. 2d 138,

370 N.W.2d 586 CO | rare re 16, 17

Herman v. City of Chicago, 870 F.2d 400 (7th Cir.

a oa acs slab ae baa eke Ske weak eRe 13

Klingbeil v. Saucerman, 165 Wis. 60, 106 N.W. 1051

1) Ses 9

17

Kuesey v. Powers, 79 FRD 151 (W.D. Wis. 1978)

iv

TABLE OF AUTHORITIES —- Continued

Page

Lindas v. Cady, No. 85-C-5371, Dane County Cir-

= ae. rrr erry er re ey eer rer ree 17

Minor v. Lakeview Hospital, 421 F. Supp. 485 (E.D.

a Me ace aig Ween ne one I Ee See cae alae 14

Owens v. Okure, 488 U.S. __, 109 S.Ct. 573, 102

LR SO CUO E ec ecw e cketee kn kOe meee aaa passim

Reeves v. Westinghouse Electrical Corporation, 430 F.

i ee < B e ) rr err ee ere 14

Saldivar v. Cadena, 622 F. Supp. 949 (W.D. Wis

en eee air ern PoP ress yy 10, 14, 17

Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 292

FUE Ate CUED oe eu tcccns ven eat ene ees 9

Segall v. Hurwitz, 114 Wis. 2d 471, 339 N.W.2d

OT Se | REE ee OORT ene nae ee 10, 15

Shovers v. Hahn, 178 Wis. 615, 190 N.W. 432 (1922)..... 9

Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958).......... 14

Waters v. Wisconsin Steel Works of International Har-

vester Company, 427 F.2d 476 (7th Cir. 1970)....... 14

Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85

Lhe Oe LEOMOD niu kas es kb ee eeseceyhadaae es passim

Woodman v. Goodrich, 234 Wis. 565, 291 N.W. 768

COUNT de DX UNRATE cieits natwd aud cient chee ee anata 15

OrnerR AUTHORITIES:

Comment, 1952 Wis. L. Rev. 105 (1962)............... )

TABLE OF AUTHORITIES - Continued

Page

CITATIONS TO STATUTES AND RULES OF THE UNITED STATES:

Rule 41(a) and (b), Federal Rules of Civil Pro-

cedure

Rule 10.1, Revised Rules of the Supreme Court ...3, 19

42 U.S.C. Section 1983 (1976) ....... 1; 4 5,6. 7; 3%. 20

42 US<.. Section: TRB CIS) oo ew! sce ence oaks aes 13

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e et seq.................. 19

WISCONSIN Statutes CITED:

Wis. Rev. Stat. 1138, Section 17(5) (1858) ............ 15

Wis. Rev. Stat. Ch. 177, Section 4222(5) (1898)....... 15

Section 111.07(14), Wis. Stats.............00....0.0.... lo

CUI Fa. CIN 6 ks oc vn noe eee eee eee Te)

DOCOMO DOU IO 6 o5 ois shown eaves We eee ee es 16

ONO TS on ok oes dae eee passim

ection BRS S6 yo ok an cc acdc noc a pa passim

sections 893.55, .56, .S7, 585, .587.............ceesses 8

Section 893.93(1)(a)

ARGUMENT SUMMARY

The Court of Appeals for the Seventh Circuit re-

versed the district court, below, and held Section 893.53,

Wis. Stats., rather than Section 893.54, Wis. Stats., to be

the statute of limitations applicable to actions brought

under 42 U.S.C. Section 1983 in federal courts in Wiscon-

sin. Section 893.53, Wis. Stats, provides a six-year limita-

tions period for actions “to recover damages for an injury

to character or rights of another, not arising on_con-

tract, ..., except where a different period is expressly

prescribed ...,” and Section 893.54, Wis. Stats., provides

a three-year limitations period for “an action to recover

damages for injuries to the person.” Applying the analy-

sis provided by this Court in Wilson v. Garcia, 471 U.S.

261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and Owens v.

Okure, 488 U.S. __, 109 S.Ct. 573, 102 L.Ed.2d 504 (1989),

the Court of Appeals found that Wisconsin provided

more than one statute of limitations for personal injuries

and that Section 893.53 is Wisconsin’s general or residual

personal injury statute of limitations.

Petitioners contend that the Court of Appeals’ deci-

sion conflicts with the decisions of this Court in Wilson

and Owens, decisions of the Courts of Appeals for the

Sixth and Ninth Circuits, and decisions of Wisconsin’s

court of last resort. Petitioners also claim that the Court

of Appeals’ decision is inconsistent with important feder-

al interests attached to Section 1983.

Petitioners are in error because the Court of Appeals’

determination that Section 893.53, Wis. Stats., is Wiscon-

sin’s general and residual personal injury statute of lim-

itations under Wilson and Owens is well-founded in its

ho

review of the pertinent state-court decisions, the deci-

sions of Wisconsin’s federal district courts, and the lan-

guage of the statutes in question. Petitioners themselves

admit that the Court of Appeals’ decision is not in direct

conflict with the other Court of Appeals’ decisions they

cite. And, neither is it in conflict with the decisions of the

Wisconsin Supreme Court because that court has clearly

held that Section 893.53, Wis. Stats., is its residual person-

al rights statute, and, in a decision rendered three months

prior to the Court of Appeals’ decision in this case, it

expressed that it had not yet decided which of the two

statutes now in issue in this case it finds applicable to

Section 1983 actions in Wisconsin state courts.

Finally, petitioners have not shown that Section

893.53, Wis. Stats., is any more inconsistent with the

important federal interests embodied in Section 1983 than

Section 893.53, Wis. Stats., or any other statute of limita-

tions. The history of the two statutes shows Section

893.53, Wis. Stats., to have remained substantively un-

changed for over one hundred and thirty years while the

substantive provisions of Section 893.54, Wis. Stats., have

been changed by the legislature a number of times in that

period.

Petitioners also claim that the Court of Appeals de-

parted severely from accepted doctrines of preclusion

when it failed to bar respondent’s First Amendment

claims brought under Section 1983 on the basis of her

voluntary dismissal with prejudice of her Title VII claims

brought in an earlier action against the County of Dane

(by whom petitioners were employed as respondent's

supervisors). Petitioners first raised this issue below in

their oral argument before the Court of Appeals after

respondent’s counsel had used up all of his time. The

issue has not been briefed below and neither the Court of

Appeals nor the District court addressed it. Petitioners

have waived the issue of the preclusive effect of her

voluntary dismissal with prejudice of her Title VII claims

in her prior action against the County of Dane.

In addition, it must be noted that resolution of the

preclusion issue would certainly turn upon whether peti-

tioners, as respondent’s employment supervisors, could

have been made proper party defendants in their individ-

ual capacities on respondent's Title VII claims in the prior

action against the County. This issue has not vet been

decided by the Court of Appeals for the Seventh Circuit.

It would be premature for this Court to address this issue

without benefit of an opinion from the Seventh Circuit

Court of Appeals. .

For these reasons, petitioners’ petition for a Writ of

Certiorari should be denied.

,™

_

ARGUMENT

The decision of the United States Court of Appeals

for the Seventh Circuit in this case does not give rise to

“special and important reasons” that would support issu-

ance of a Writ of Certiorari. (Rule 10.1, Revised Rules of

Supreme Court, adopted December 5, 1989, 107 L.Ed.2d i,

v.)

4

I. THE DECISION RENDERED BY THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT ACCORDS WITH THE DECISIONS OF

THIS COURT AND DOES NOT CONFLICT WITH

DECISIONS RENDERED IN OTHER CIRCUITS OR

THE WISCONSIN SUPREME COURT REGARD-

ING THE SELECTION OF THE MOST ANALO-

GOUS WISCONSIN STATUTE OF LIMITATIONS

TO APPLY TO ACTIONS UNDER 42 U.S.C. SEC-

TION 1983 IN FEDERAL COURTS IN WISCONSIN.

The United States District Court for the Western Dis-

trict of Wisconsin interpreted the decision of this Court in

Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d

254 (1985), to require application of Wisconsin’s three-

year limitations period for actions for damages “for inju-

ries to the person” and “for death caused by the wrongful

act, neglect or default of another,” found in Section

893.54, Wis. Stats., to respondent’s claims brought pur-

suant to 42 U.S.C. Section 1983 (hereinafter Section 1983)

in this action. (Petitioners’ Appendix at 34A.) The District

Court rendered its decision prior to this Court’s decision

in Owens v. Okure, _ U.S. __, 109 S.Ct. 573, 102 L.Ed.2d

594 (1989). (Id. at 39A.) On appeal, the Court of Appeals

for the Seventh Circuit, interpreting Wilson in light of the

then-recent Owens decision, determined that Owens man-

dates the application of Wisconsin’s “general or residual

statute for personal injury actions” to respondent's Sec-

tion 1983 claims. Gray v. Lacke, 885 F.2d 399, 407 (7th Cir.

1989) (See Petitioners’ Appendix at 13A.) The Court of

Appeals, applying the Owens criteria, found Wisconsin's

general or residual statute of limitations for personal

injury actions to be Section 893.53, Wis. Stats., which

provides a six-year limitations period for “[a]n action to

recover damages for an injury to the character or rights of

another, not arising on contract, ... , except where a

different period is expressly prescribed... .” Id. at 407-8

(P. App. at 13A.)

Petitioners petition this Court for a Writ of Certiorari

to review the decision of the Court of Appeals, claiming

that the Court of Appeals’ decision is contrary to this

Court’s decisions in Wilson and Owens, and that it is in

conflict with decisions of other United States Courts of

Appeals and of the Wisconsin Court of Appeals. (Peti-

tioners’ Brief, pp. 5-13.) Petitioners’ petition should be

denied because the Seventh Circuit Court of Appeals

carefully and appropriately applied this Court’s direc-

tions in Wilson and Owens to select Wisconsin’s general or

residual personal injury statute of limitations as applica-

ble to actions brought pursuant to Section 1983 in federal

court; because, as petitioners, themselves, admit, the

Court of Appeals decision in this case is not in conflict

with the decisions of other United States Courts of Ap-

peals, (See P. Brief at 10); and, because, again by peti-

tioners’ own admission, the Court of Appeals decision is

not in conflict with any decision of the Wisconsin Su-

preme Court, (See P. Brief at 12); and because petitioners

have not shown that the Court of Appeals decision fails

to protect and further the federa! interests inherent in

Section 1983.

A. The United States Court of Appeals for the Sev-

enth Circuit Properly Applied this Court’s Di-

rective, as Set Forth in Wilson v. Garcia and

Owens v. Okure, to Look to the State’s General

or Residual Statute of Limitations for Personal

Injury Actions When Seeking the Most Analo-

gous State Statute of Limitation to Utilize in -

Actions Brought Under 42 U.S.C. Section 1983 in

Federal Courts.

In Wilson v. Garcia, this Court, in an effort to elimi-

nate the “conflict, confusion and uncertainty,” surroun-

ding the efforts of state and federal courts to devine the

most analogous state statute of limitations to apply in

Section 1983 actions, concluded that Section 1983 actions

are best characterized as conferring a “general remedy

for injuries to personal rights.” 471 U.S. 261, 266, 278, 105

S.Ct. 1938, 85 L.Ed.2d 254, 260, 268; Owens v. Okure, 488

U.S , 109 S.Ct. 573, 102 L.Ed.2d 594, 600 (1989). The

Court then held that, since section 1983 actions are “best

characterized as personal injury actions,” the United

States Court of Appeals for the Tenth Circuit had appro

priately selected New Mexico’s “statute of limitations

governing actions ‘for an injury to the person or reputa-

tion of any person’ ” for application to Section 1983 ac

tions in federal courts in that state. 471 U.S. at 280, 105

S.Ct. 1938, 85 L.Ed.2d at 269

In Owens v. Okure, this Court recognized that Wilson

had not answered the question of what to do when state

law presented more than one statute of limitations for

personal injury actions. 448 U.S , 109 S.Ct. 573, 102

Ed.2d 594, 600 (1989). In Owens, this Court directed

that, in such cases, the appropriate statute of limitations

to apply to Section 1983 actions is “the general or residual

statute for personal injury actions.” 448 U.S. __, 109 S.Ct.

at 582, 102 L.Ed.2d at 605-6.

In the case at bar, the Court of Appeals determined

that Wisconsin has two different personal injury statutes,

Section 893.54, Wis. Stats., which provides a three-year

limitations period “ ‘for injuries to the person’” and

wrongful death actions, and Section 893.53, Wis. Stats.,

ssa’

which provides a six-year limitations period “ ‘for an

oe + +h

ury to the character or rights of another, not arising

under contract except where a different period is

prescribed.’ ” Gray v. Lacke, 885 F.2d 399, 407; (P.

~

App at 12A-13A.) The Court of Appeals then observed

that this Court in Owens had held

“ ‘that where state law provides multiple stat

utes of limitations for personal injury actions,

courts considering Section 1983 claims should

borrow the general or residual statute for per-

sonal injury actions,’ Gray v. Lacke, 885 F2d at

407, quoting from Owens, 109 S.Ct. at 582, 102

L.Ed.2d at 606; (P. App. at 12A-13A.)

and concludgd:

“Owens mandates that for Section 1983 actions

we must choose the Wisconsin statute of limita-

tions which is a general or residual statute for

personal injury actions.” Id

Looking to State Court interpretations of Section 893.53

Wis. Stats.; the language of Section 893.53, Wis. Stats., as

compared to that of Section 893.54, Wis. Stats.; and the

interpretations of federal district courts in Wisconsin, the

Court of Appeals determined that Section 893.53, Wis

Stats., was the general or residual personal injury statute

at

of limitations applicable, under Owens, to Section 1982

actions in federal courts in Wisconsin. /id. at 407-9

App. at 13A-16A.)

Petitioners assert that the Court of Appeals erred

applying Owens to the case at bar, although thev dak

ying

make clear how, exactly, the Court of Appeals erred

Brief at 7-8.) At one point petitioners seem to assert that

the Court of Appeal should not have applied Owens

>»

this case at all because, according to petitioners, Wiscon

sin “has one, and only one, general personal injurv stat

ute of limitations,” that being Section 893.54, Wis. Stats

for “{a]n action to recover damages tor injuries to

person.” (P. Brief at 8.) However, just before making

assertion, petitioners acknowledge that Section 893.53,

Wis. Stats., is a “ ‘residual tort’ statute” embracing “some

of the more esoteric common-law tort actions that do not

have a specified limitation period”, and, petitioners later

recognize that Wisconsin has numerous statutes estab-

lishing limitations periods for “specified intentional torts,

and numerous exceptions for certain types of personal

injury actions, see WIS. STAT. Secs. 893.55, .56, .57, .585,

587, but only one [Section 893.54, Wis. Stats.] which

speaks generally of ‘injuries to the person’.” (Id. at 7-8.) If

petitioners’ argument is that, in Owens, this Court distin-

guished between general personal injury statutes and

residual personal injury statutes, and preferred the for-

mer, (Id.), then petitioners misunderstand the concept of

‘general or residual personal injury statutes” as used in

Owens. If, petitioners’ argument is that Section 893.54,

Wis. Stats., should be construed to be Wisconsin’s general

and residual personal injury statute because Section

893.53, Wis. Stats., does not encompass “personal injury”

actions, then they interpret the scope of the term “person-

al injury” as used by this court in Wilson and Owens too

narrowly; they misunderstand the wide range of personal

injury statutes of limitations in Wisconsin and the spe-

cific, limited application of Section 893.54, Wis. Stats.; and

they ignore this Court’s traditional deference to a Court

f Appeals interpretations of state law.

This Court’s decision in Owens clearly did not distin-

guish between “general” and “residual” personal injury

statutes of limitations. 488 U.S. , 109 SAL Sr, 12

| Ed2d at 604. “Indeed,” the Court stated,

“the very idea of a general or residual statute

suggests that each State would have no more

than one.” Id

In Wisconsin, as the Court of Appeals found, thi

general and residual personal injury statute is Section

893.53, Wis. Stats. Gray v. Lacke, 885 F.2d at 407-9. And in

Owens, this Court expressly recognized Section 893.54,

Wis. Stats., to be a specific, rather than a general or

residual statute of limitations. 488 U.S , 109 S.Ct. 573,

102 L.Ed.2d at 602, n. 8. Section 893.53, Wis. Stats., was

not included in that characterization by the Court. [Id

Wisconsin courts, too, have consistently interpreted Sec-

tion 893.54, Wis. Stats., as pertaining narrowly and specif-

ically to actions alleging negligent infliction of bodily

injuries and accompanying emotional injuries. Acharya ¢

Carroll, 152 Wis. 2d 330, 337, 448 N.W.2d 275 (1989

Scarpacit v. Milwaukee County, 96 Wis. 2d 663, 292 N.W.2d

816, 822 (1980) (no action for negligent infliction of em

tional distress without bodily injurv); Anderson v. Cont:

ntal Ins. Co., 85 Wis. 2d 675, 694, 271 N.W.2d 368 (1978

“tic Ta lj inflic ; ional di«< .

(no action for negligent infliction of emotional distre

Li Xa ess

without physical injuries); Shovers v. Hakn, 178 Wis. 615

190 N.W. 432 (1922) (interpreting predecessors to Section

893.54, Wis. Stats.); Klingbetl v. Saucerman, 1635 Wis. 60, 16C

se 4 ~— $4.44

N.W. 1051, 1052 (1921); Gatzow v. Buening, 106 Wis. 1, 81

N.W. 1003 (1900); See also, comment, 1952 Wis. L. Re:

105, 106-7 (1962). As this Court has noted (and as peti-

c “ . 7 &

tioners acknowledge (P. Brief at 8 Wisconsin also has

numerous other statutes of limitations for specific inten-

tional and negligent personal injuries. Owens tv. Okure. 488

U.S. , 108 S.Ct 9/3, 102 L.Ed.2d at 602. n. 8. Wiscons

courts have consistently characterized Section 893 33

10

Wis. Stats., and its predecessors as the general and resid-

ual statute for every type of tort, including injuries to

personal rights. See, Acharya v. Carroll, 152 Wis. 2d 330,

337, 448 N.W.2d 275; and Segall v. Hurwitz, 114 Wis. 2d

471, 339 N.W.2d 333 (App. 1983) and the cases cited

therein.

Although this Court, in Wilson, stated that “Section

1983 claims are best characterized as personal injury ac-

tions,” 471 U.S. at 280, 105 S.Ct. 1938, 85 L.Ed.2d at 269, it

made clear in Owens that it had used the term “personal

injury actions,” not in the narrow sense of negligent

infliction of bodily injuries, but in the broader sense of

““a general remedy for injuries to personal rights.’ ”

Owens v. Okure, 448 U.S. __, 109 S.Ct. 573, 102 L.Ed.2d at

600. The Court of Appeals recognized this broader mean-

ing of the term “personal injury action” as used in Wilson

and Owens, when it selected Section 893.53, Wis. Stats.,

over Section 893.54, Wis. Stats. in the decision below. Gray

v. Lacke, 885 F.2d at 407-8; see also, Saldivar v. Cadena, 622

F. Supp. 949, 955 (W.D. Wis. 1985).

The Court of Appeals in this action correctly applied

Owens by looking to Wisconsin state and federal court

decisions which characterize Section 893.53, Wis. Stats.,

as a general or residual statute of limitations for actions

alleging injury to personal rights. See, Owens v. Okure, 488

U.S. __, 109 S.Ct. 573, 102 L.Ed.2d at 606, n. 12; Gray v.

Lacke, 885 F.2d at 408; see also, Acharya v. Carroll, 152 Wis.

2d at 337-8, 448 N.W. 2d 275; Saldivar v. Cadena, 622 F.

Supp. at 954-6. The Court of Appeals also faithfully fol-

lowed Owens in looking to the statutory language and

application of Sections 893.53 and .54, Wis. Stats., to

11

ascertain which reflected the broader or “catchall” char-

acter of a general or residual statute of limitations for

personal injury actions. See, Owens v Okure, 488 U.S. __,

109 S.Ct. 573, 102 L.Ed.2d at 604 and n. 9; Gray v. Lacke,

885 F.2d at 408. Since Section 893.54, Wis. Stats., applies

only to negligent bodily injuries, and does not contem-

plate unspecified causes of action for intentional personal

injuries or personal injuries not linked to bodily injuries,

it cannot be construed as Wisconsin’s general or residual

personal injury statute.

The decision of the Court of Appeals for the Seventh

Circuit is not in conflict with the applicable decisions of

this Court concerning solution of the appropriate state

court limitations to apply to actions under Section 1983.

B. The Decision of the United States Court of Ap-

peals for the Seventh Circuit Is Not in Conflict

with Decisions of the Sixth or Ninth Circuits.

Petitioners assert that the United States Court of

Appeals for the Seventh Circuit’s interpretation and ap-

plication of Wilson and Owens is in conflict with decisions

of the Sixth Circuit Court of Appeals in Browning v.

Pendleton, 869 F.2d 989 (6th Cir. 1989) and Emmons v.

McLaughlin, 874 F.2d 351 (6th Cir. 1989), and the Ninth

Circuit Court of Appeals in Del Percio v. Thornsley, 877

F.2d 785 (9th Cir. 1989). (P. Brief at 8 - 9) In fact, there is

no conflict between these Courts, as petitioners them-

selves acknowledge, because each court’s decision ad-

dresses a different issue. (P. Brief at 10.)

In Browning the choice before the Court was between

a statute of limitations applicable to all intentional torts

12

and one generally applicable to bodily injuries. 869 F.2d

at 990. In Emmons, the Court was presented with the same

choice, 874 F.2d 354. In Del Percio, the Ninth Circuit was

faced with a choice between a general “catchall” statute

that apparently covered any type of action other than

personal injury actions, and a “catchall” personal injury

statute. 877 F.2d at 786 and at n.3. In the case at bar, the

choice was between a specific personal injury statute for

bodily injury, Section 893.54, Wis. Stats., and a general,

residual personal injury statute, Section 893.53.

In all of these Court of Appeals decisions, the Courts

acknowledged that Owens requires selection of “the resid-

ual or general personal injury statute of limitations” in

instances where state law presents more than one person-

al injury statute. Browning v. Pendleton, 869 F.2d at 991;

Emmons v. McLaughlin, 874 F.2d at 354; Del Percio

Thornsley, 877 F.2d at 786; Gray v. Lacke, 885 F.2d at 407 (P.

App. at 13A). Furthermore, in Carroll v. Wilson, 787 F.2d

44 (6th Cir.) (per curiam), cert. denied 479 U.S. 923, 107

S.Ct. 330, 93 L.Ed.2d 302 (1986), the Sixth Circuit Court of

Appeals, applying the teachings in Wilson, selected Mich-

igan’s residual, “catchall” personal injury statute over an

intentional tort statute and a libel and slander statute. In

the case at bar, the Court of Appeals chose the general,

residual personal injury statute over the specific, negli-

gent-bodily-injury statute.

Thus, petitioners have failed to show any conflict,

whether in results or principles, between the decision

rendered by the Court of Appeals in this case and the

decisions rendered in any other court of appeals.

13

It should be noted that the Court of appeals decisions

here does not conflict with its decision in Herman v. City

of Chicago, 870 F.2d 400 (7th Cir. 1989) as petitioners

assert. (P. Brief at 9.) The issue in Herman did not involve

a choice among statutes of limitations, but whether the

doctrine of laches should be applied under the facts of

that case. Id. The Court in Herman did not consider or

“reject” the approach used by the Court of Appeals in

this case as petitioner’s propose. (P. Brief at 9.)

C. The Court of Appeals Decision in This Case Is

Consistent With Federal Interests.

This Court, in Wilson and Owens, sought to put an

end to the “conflict, confusion and uncertainty” and di-

version of judicial resources that characterized the search

by courts across the nation for appropriate, analogous

state statutes of limitations to apply under Section 1988 to

Section 1983 actions, while ensuring that the important

federal interests vindicated by Section 1983 would be

protected. Wilson v. Garcia, 471 U.S. 261, 266, 278, 279, 105

S.Ct. 1938, 85 L.Ed.2d 254, 260, 268-9; Owens v. Okure, _

U.S. __, 109 S.Ct. 573, 102 L.Ed.2d 594, 600 (1989). The

Court of Appeals decision in this case accomplishes those

purposes. Conflict, confusion, and uncertainty surround-

ing selection of the appropriate state statute of limitations

to apply to Section 1983 actions in federal courts in Wis-

consin is ended, because, as petitioners concede, for the

first time, the Court of Appeals for the Seventh Circuit

has decided this issue for Wisconsin federal courts. (P.

Brief at 5)

14

Petitioners have not contended that Section 893.53,

Wis. Stats., is inherently less suitable to the vindication of

the protections provided under Section 1983 than is Sec-

tion 893.54, Wis. Stats., the statute they advocate. Indeed,

they concede that the limitations period of six-years

found in Section 893.53, Wis. Stats., being twice as long as

the three-year period provided in Section 893.54, Wis.

Stats., is more favorable to plaintiffs, (P. Brief at 10),

presumably because it preserves more meritorious Sec-

tion 1983 claims. Furthermore, the statute of limitations

usually applied to reconstruction-era federal civil rights

statutes by federal district courts in Wisconsin prior to

this Court’s decision in Wilson was the six-year period

found in Section 893.93(1)(a), Wis. Stats., and its prede-

cessors. Saldivar v. Cadena, 622 F.Supp. 949, 956 (W.D. Wis.

1985); and, see, e.g., Minor v. Lakeview Hospital, 421 F.

Supp. 485, 487 (E.D. Wis. 1976); Reeves v. Westinghouse

Electrical Corporation, 430 F. Supp. 623, 624 (E.D. Wis.

1971); Kuesey v. Powers, 79 FRD 151 (W.D. Wis. 1978); (the

Court of Appeals for the Seventh Circuit had directed as

early as 1958 that statutes of limitations for statutory

“civil actions not otherwise provided for” were to be

used in Section 1983 actions, Wakat v. Harlib, 253 F.2d 59

(7th Cir. 1958); Waters v. Wisconsin Steel Works of Interna-

tional Harvester Company, 427 F.2d 476, 488 (7th Cir. 1970);

Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977)).

However, petitioners argue that the Court of Appeals

decision selecting Section 893.53, Wis. Stats., jeopardizes

federal interests in the long run because Section 893.53,

Wis. Stats., is less used in Wisconsin than Section 893.54,

Wis. Stats., and therefore more susceptible to being tam-

pered with by a state legislature intent upon limiting the

15

state’s exposure to meritorious Section 1983 actions. (P.

Brief at 10-11.) The gist of petitioners argument seems to

be that federal interests require drastically shortening the

limitations period now to make sure Wisconsin’s legisla-

ture does not attempt the same thing at some indefinite

time in the future.

Petitioners’ concern is unfounded. Wisconsin appel-

late courts have found Section 893.53, Wis. Stats., applica-

ble to a number of causes of action, including attorney

malpractice, Acharya v. Carroll, 152 Wis. 2d 330, 448

N.W.2d 275 (App. 1989); malicious prosecution and tor-

tious interference with beneficial relations, Segall v. Hur-

witz, 114 Wis. 2d 471, 339 N.W.2d 333, 341, 342 (App.

1983); and criminal conversion, Woodman v. Goodrich, 234

Wis. 565, 566-7, 291 N.W. 768, 769 (1940); and that it

serves as a “blanket limitation on tort actions when no

other period of limitation is expressly prescribed,”

Acharya v. Carroll, 152 Wis. 2d at 337-8, 448 N.W.2d 275. It

is unlikely that the Wisconsin legislature would find it

particularly attractive to unduly shorten the limitations

period in these actions just to impair federal court Section

1983 actions.

The history of Sections 893.53 and 893.54, Wis. Stats,

also belies petitioners’ argument. In fact, the statute of

limitations period for negligent personal injury, which is

now Section 893.54, Wis. Stats., has gone through a num-

ber of substantive changes at the hands of the Wisconsin

legislature over the last one hundred and thirty vears

while the residual tort statute, now found in Section

893.53, Wis. Stats., has undergone none. Compare Wis

Rev. Stat. 1138, Section 17(5) (1858); Wis. Rev. Stat. Ch

16

177, Section 4222(5) (1898); Section 330.19(5), Wis. Stats.

(1955); Section 330.205, Wis. Stats. (1957).

Federal interests inherent in Section 1983 protections

are not adversely implicated by the decision of the Court

of Appeals in this action.

D. The Decision of the Court of Appeais Is Not in

Conflict with the Decisions of the Highest Wis-

consin Court.

Petitioners would persuade this Court that a Writ of

Certiorari should issue because the decision of the Court

of Appeals in this matter is in conflict with a 1985 deci-

sion of the Wisconsin Court of Appeals, an intermediate

appellate court in Wisconsin. (P. Brief at 11-13.) In fact,

the United States Court of Appeals decision is not in

conflict with the decisions of Wisconsin’s court of last

resort, the Wisconsin Supreme Court.

In 1985, shortly after this Court decided Wilson, the

Wisconsin Court of Appeals, an intermediate level appel-

late court, in Hanson v. Madison Service Corp., reversed the

trial court and held, in light of Wilson, that the three-year

limitations period found in Section 893.54, Wis. Stats.,

rather than a one-year period applicable to administra-

tive actions under the Municipal Employment Relations

Act (MERA), Section 111.07(14), Wis. Stats., should apply

to Section 1983 actions in Wisconsin circuit courts. 125

Wis. 2d, 370 N.W.2d 586, 587 (App. 1985). The court did

not consider the applicability of Section 893.53, Wis.

Stats., in its decision. Felder v. Casey, 150 Wis.2d 458, 441

N.W.2d 725, 730 at n. 7 (1989). The Wisconsin Court of

Appeals decided Hanson well before this Court’s decision

17

in Owens and also prior to the well-reasoned decision of

Judge Barbara Crabb in Saldivar v. Cadena, 622 F.Supp. at

954-956, which the Court of Appeals relied upon in this

case. 885 F.2d at 408.

The Wisconsin Supreme Court has expressly left open

the question of whether, in light of Owens, Section 893.54

or Section 893.53, Wis. Stats., applies to Section 1983

actions in Wisconsin state courts. Felder v. Casey, 150

Wis.2d 458, 441 N.W.2d at 729. Furthermore, it should be

noted that the Wisconsin Attorney General's office has, in

light of the Court of Appeals decision in this case, con-

ceded that Hanson is no longer applicable in Section 1983

actions in Wisconsin’s state courts. Letter to Judge Angela

B. Bartell from Assistant Attorney General Bruce A.

Olsen, October 24, 1989, Lindas v. Cady, No. 85-C-5371

(Circuit Court, Dane County, Wisconsin) (R. App. at 1a)

Thus, the Court of Appeals decision in this case is not

in conflict with the Wisconsin’s court of last resort on this

issue.

II. PETITIONERS FAILED TO TIMELY RAISE BE-

LOW THE ISSUE THEY NOW RAISE CONCERN-

ING THE COURT OF APPEALS DECISION

REFUSING TO PRECLUDE PLAINTIFF’S CLAIMS,

AND THEY HAVE, THEREFORE WAIVED THAT

ISSUE.

A. Petitioners Did Not Raise Below the Question

of the Preclusive Effect of Respondent’s Volun-

tary Dismissal of Her Title VII Claims in Her

Action Against the County of Dane.

Petitioners did not raise, either in the district court or

the Court of Appeals below, the question of the

18

preclusive effect of respondent’s voluntary dismissal, un-

der 41(a) of the Federal Rules of Civil Procedure, of her

Title VII claims in her action against the County of Dane

which preceded her action below. In her briefs in the

district court and the Court of Appeals below petitioners

argued the effect of an involuntary dismissal under Rule

41(b), FR.C.P., without specifically referring to respon-

dent’s Title VII claims anywhere in their argument. Peti-

tioners did not argue, in either forum, the effect of the

voluntary dismissal of her Title VII claims pursuant to

Rule 41(a), FR.C.P. Petitioners first raised the issue of the

preclusive effect of the dismissal of respondent’s Title VII

claims against the County of Dane in their oral argument

before the Court of Appeals in this case. Respondent did

not have an opportunity to respond to that oral argu-

ment, and the Court of Appeals did not expressly consid-

er petitioners’ argument concerning the Title VII

dismissal in its decision. (P. App., p. 1A.)

Petitioners should therefore be deemed to have waiv-

ed their objection to the district court and the Court of

Appeals decision on the preclusion issue concerning the

voluntary dismissal of her Title VII claims.

B. Even If Petitioner Had Raised the Issue of the

Preclusive Effect in This Action of Her Volun-

tary Dismissal of Her Title VII Claims in Her

Action Against the County of Dane, The Issue

Would Not Be Ripe for Determination By This

Court.

The Court of Appeals in this action did not decide,

nor did the parties brief, the issue of the preclusive effect,

if any, of respondent’s voluntary dismissal of her Title VII

19

claims in her prior action against the County of Dane.

The determination of the preclusion issue would certainly

turn, in part, upon the question of whether petitioners

would have been proper parties defendant in their indi-

vidual capacities under Title VII in respondent’s action

against the County of Dane. If respondent could not have

sued petitioners for damages in their individual capaci-

ties under Title VII, then under the same rationale ap-

plied by the Court of Appeals regarding the preclusive

effect of respondent’s Section 1983 claim against the

County of Dane, the application of Res Judicata or collat-

eral estoppel would not be appropriate.

The Court of Appeals for the Seventh Circuit has not

yet decided the issue of whether an employer’s super-

visors can be held liable for damages in their individual

capacities under Title VII. Bertoncini v. Schrimpf, 712

F.Supp. 1136, 1339 (N.D. Ill. 1989).

The issue of the preclusive effect of respondent’s

voluntary dismissal of her Title VII claim against the

County of Dane in her prior action is not ripe for consid-

eration by this Court.

>

Ill. CONCLUSION

For the reasons stated above, the Petition for Cer-

tiorari does not establish “special and important reasons”

that would support issuance of a Writ of Certiorari under

Rule 10.1, Revised Rules of Supreme Court. The petition

should be denied.

Respectfully submitted this 23rd day of February

1990

leff Scott Olson

julian, Olson & Lasker, S.¢

A. Steven Porter

Attorneys for Respondent

Cheryll Gravy

330 E. Wilson Street

Madison, Wisconsin 53703

(608) 255-6400

25 W. Main Street, Suite 503

~

Madison, Wisconsin 53703

(608) 255-5170

APPENDIX

STATE OF WISCONSIN

DEPARTMENT OF JUSTICE

DONALD J. HANAWAY Division of Legal Services

ATTORNEY GENERAL James D. Jeffries, Administrator

Mark E. Musolf 123 West Washington Avenue

Deputy Attorney General P.O. Box 7857

Madison, WI 53707-7857

Bruce A. Olsen

Assistant Attorney General

608 / 266-2580

RECEIVED

OCT 25 1989

JULIAN, OLSON & LASKER S.C

October 24, 1989

The Honorable Angela B. Bartell

Circuit Court, Branch 10

City-County Building, Room 329

Madison, Wisconsin 53709

Re: Lindas v. Cady, et al.,

Case No. 85-CV-5371.

Dear Judge Bartell:

Ms. Lindas has moved for reconsideration of that

portion of the court’s August 14, 1986 memorandum deci-

sion and order regarding whether her claim under sec.

1983 is barred by the statute of limitations. The state

employe defendants agree with counsel’s assertion that

the courts recently have applied a six-year statute of

limitations to such claims, making them timely in this

case.

2B

\

The defendants, however, take the position that the

sec. 1983 claims are barred by the doctrine of administra-

tive res judicata by reason of a decision of the Personnel

Commission dated January 3, 1985, which found no prob-

able cause to believe that DHSS unlawfully discriminated

against Ms. Lindas on the basis of sex. A copy of that

decision is attached to this letter brief.

In University of Tennessee v. Elliott, 478 U.S. 788, 799

(1986), the court held that when a state administrative

agency acts in a judicial capacity and resolves disputed

issues of fact properly before it (which the parties have

had an adequate opportunity to litigate), a federal court

in a section 1983 action must give preclusive effect to the

agency's findings of fact if such findings would be enti-

tled to preclusive effect in the state courts. This doctrine

of administrative res judicata should apply equally to

section 1983 actions in state courts.

Although no Wisconsin appellate court decision

clearly establishes whether the doctrine of administrative

res judicata would apply to the facts of this case, see Lindas

v. Cady, 150 Wis. 2d 421, 431 (1989), the Seventh Circuit in

Patzer v. Board of Regents, 763 F.2d 851, 857 n. 5 (7th Cir.

1985), was confident that Wisconsin courts would follow

the general rule that final administrative decisions are res

judicata as to the claims decided. Some Wisconsin cases

suggest that preclusive effect will be given to administra-

tive agency decisions. Acharya v. AFSCME, Council 24 v.

WSEU, 146 Wis. 2d 693, 698, 432 N.W.2d 140 (Ct. App.

1988). Mathews v. Big Foot Country Club, 7 Wis. 2d 244,

247, 96 N.W.2d 327 (1959); Sheehan v. Industrial Comm., 272

Wis. 595, 604, 76 N.W.2d 343 (1956); State ex rel. Priegel v.

Northern States Power Co., 242 Wis. 345, 353, 8 N.W.2d 350

3C

(1942). Other cases suggest the opposite. Fond du Lac v.

Department of Natural Resources, 45 Wis. 2d 620, 625, 173

N.W.2d 605 (1970); Board of Regents v. Wisconsin Personnel

Commission, 103 Wis. 2d 545, 552, 309 N.W.2d 366 (1981);

Kramer v. Horton, 128 Wis. 2d 404, 419, 383 N.W.2d 54

(1986).

None of the latter three cases, however, involved a

contested case hearing in which a factual issue had been

resolved adversely to the party seeking to relitigate that

same issue in a second case. Moreover, the court’s state-

ment in Kramer, 128 Wis. 2d at 419 (“a section 1983

plaintiff can pursue a claim in federal court even after

exhausting state administrative remedies because res judi-

cata and collateral estoppel do not attach to state adminis-

trative agency determinations”) does not address section

1983 actions in state court and is flatly contradicted by

Elliott which was decided four months after Kramer.

The defendants submit that Wisconsin courts should

apply the doctrine of administrative res judicata. As the

Supreme Court pointed out in Elliott, 106 S. Ct. at 3266:

[G]iving preclusive effect to administrative fact-

finding serves the value underlying general

principles of collateral estoppel: enforcing re-

pose. This value . . . encompasses both the par-

ties’ interest in avoiding the cost and vexation of

repetitive litigation and the public’s interest in

conserving judicial resources.

Federal appellate courts have not hesitated to apply the

doctrine of administrative res judicata. Buckhalter v. Pepsi-

Cola General Bottlers, Inc., 820 F.2d 892 (7th Cir. 1987);

Kirkland v. City of Peekskill, 828 F.2d 104 (2d Cir. 1987).

4D

In Lindas’ case, after several days of hearing in

which Lindas was represented by counsel and was af-

forded an adequate opportunity to litigate, the Wisconsin

Personnel Commission decided that there was no proba-

ble cause to believe that DHSS unlawfully discriminated

against her on the basis of sex. Kathleen Lindas v. DHSS,

Case No. 80-PC-ER-96 (January 3, 1985). The fact that the

Personnel Commission’s decision was on the issue of

probable cause, rather than on the merits, does not pre-

clude application of the doctrine of administrative res

judicata since Lindas received a full and fair hearing, and

since the Personnel Commission decided adversely to

Lindas the same issue which she seeks to litigate in this

action, namely, whether she was constructively dis-

charged because of her sex. Cf. Zywicki v. Moxness Prod-

ucts, Inc., 610 F. Supp. 50 (E.D. Wis. 1985), reversed and

remanded on other grounds, 801 F.2d 1343 (7th Cir. 1986).

Consequently, DHSS submits that Lindas’ section 1983

claim against it is barred, under the doctrine of adminis-

trative res judicata, by the decision of the Personnel Com-

mission.

For the foregoing reasons, the defendants re-

spectfully request that the plaintiff’s claims under sec.

1983 be dismissed

Sincerely,

/s/ Bruce A. Olsen

Bruce A. Olsen

Assistant Attorney General

BAO:jcd

Enclosures

cc: Jeff Scott Olson