Petition for Writ of Certiorari — Vorwald v. River Falls School District

; FILE

AUG 3 1 1982

CASE NO. cos ge THE GLERIS

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

Curtis R. Vorwald,

Petitioner,

Vv.

School District of River Falls, River Falls

Board of Education, and Charles R. Brenden,

Superintendent of Schools,

Respondents.

Petition for A Writ of Certiorari to the

Wisconsin Supreme Court

Petition for Writ of Certiorari

*Edward F. Vlack, Ill

John M. O’Boyle

Counsel for Petitioner

DAVISON & VLACK

200 East Elm Street

River Falls, Wisconsin 54022

(715)425-1525

*Counsel of Record

QUESTION PRESENTED

In a 42 U.S.C. $1983 action brought in state court,

does a public school’s personnel policy rise to the level of

a property interest, as defined by the Supreme Court of

the United States, so as to allow the employee procedural

due process rights to notice and hearing prior to

termination of employment?

TABLE OF CONTENTS

QUESTION PRESSEINIGA? 6.55044 ae eee sakes i

TABLE OF AUTHORED HSS 65 sc eee wee sees iV

OPINION BELOW ... 64.656 pee eee es l

JURISDICTION .....65.4sS eee eee a 2

STATUTORY PROVISIONS INVOLVED ...... 2

STATEMENT OF THE GARG <5 caeee hsweenss 3

REASONS FOR GRANTING THE WRIT ...... 6

I. THE WRIT SHOULD BE GRANTED

BECAUSE THE DECISION BELOW IS

IN CONFLICT WITH THIS COURT'S

PRIOR HOLDINGS IN BOTH BD. OF

REGENTS OF ‘STATE COLLEGES _V.

ROTH AND PERRY V. SINDERMANN

WITH REGARD TO THE SCOPE OF A

PROPERTY TN TEREE oss secs an sane es 6

Il. THE WRIT SHOULD BE GRANTED

BECAUSE THE FEDERAL CIRCUIT

COURTS ARE IN CONFLICT ON THE

INTERPRETATION OF THIS COURT'S

HOLDINGS IN BD. OF REGENTS OF

STATE COLLEGES V. ROTH AND

PERRY _V. SINDERMANN AS THEY

APPLY TO IDENTIFYING PROPERTY

EM ee age wea cua a. 9

Ill. THE DECISION BELOW, AND OTHER

SIMILAR HOLDINGS, RAISE

SIGNIFICANT DUE PROCESS

IMPLICATIONS AND AFFIRMS THE

NEED FOR CLARIFICATION BY THIS

COURT ON THE SCOPE OF A

oie Ue i) 1) 14

i Ee oid oc Rkk eke. 17

APPENDIX

Remittitur from Wisconsin Supreme Court

CS Ee A-1

Opinion of the Wisconsin Supreme Court

oo Es Se i A-3

Opinion of the Wisconsin Court of Appeals

(January 29, 1991).................... . A-18

School District of River Falls

PUNT PO cg cca cuccccuacs A-27

TABLE OF AUTHORITIES

Cases: Page

Bailey v. Kirk, 777 F.2d 567 (10th Cir. 1985). ..... 9, 10

Bartlett v. Krause, 209 Conn. 352, 55 A.2d 710

(Conn. 1988) 2.2... eee cece eee eee e reece 16

Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074,

48 L.Ed.2d 684 (1976) .....--- ee eee ee eee 10

Board of Regents of State Colleges v. Roth,

408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct.

2701 (1972) ... 2. eee eeeeeee 6, 7, 8, 9, 11, 14, 15, 16

Bradley v. Colonial Mental Health & Ret. Services,

856 F.2d 703 (4th Cir. 1988)... ....-- 2 eee eee eee 11

Cleveland Bd. of Ed. v. Loudermill, 470 U.S.

532, 84 L.Ed.2d 494, 105 S. Ct. 1487 (1985). .....-. 10, 14

Correa-Martinez v. Arrillaga-Belendez, 903

F.2d 49 (Ist Cir. 1990) .. 1.2... ee eee eee ees iz, 15

Edinger v. Bd. of Regents, 906 F.2d 1136

(6th Cir, 1990) .... 2... cece cece eee e ee ceceees 12

Felder v. Casey, 487 U.S. 131, 108 S. Cx. 202,

101 L.Ed.2d 123 (1988) ...... es eee eer cceeees 9

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972) .... 2... ccc ee eenees 16

Nat'l Ins. Co. v. Tidewater Co., 337 U.S.

582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) .......... 16

Nolin v. Douglas County, 903 F.2d 1546

[ETE Ri: oso bee TAS Cra eee 10

Oddsen v. Bd. of Fire and Police

Commissioners for the City of Milwaukee,

108 Wis.2d 143, 321 N.W.2d 161 (1982) .......... 8

Patkus v. Sangamon-Cass Consortium, 769 F.2d

Rare (7. TOE cv 0a. ee 13

Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d

JPA, Fe DAN. BOO TIW IED 6 eo vs bd oa 7, 8, 9, 12, 16

Sabet v. Eastern Virginia Medical Authority,

00) © mle A TO A, FI ok nk ox cack 12

Staheli v. Univ. of Miss. 854 F.2d 121

CO Gl, SRD os iene ak eet ete tae oe 13

Thomas-Lazear v. FBI, 851 F.2d 1202 (9th Cir. 1988) 12

Vorwald v. School District of River Falls,

et seq., 167 Wis.2d 549, 482 N.W.2d 93 (1992) ....5,9

CAS ' - NO

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

Curtis R. Vorwald,

Petitioner,

Vv.

School District of River Falls, River Falls

Board of Educaticn, and Charles R. Brenden,

Superintendent of Schools,

Respondents.

Petition for A Writ of Certiorari to the

Wisconsin Supreme Court

The Petitioner, Curtis R. Vorwald, respectfully

prays that a writ of certiorari issue to review the opinion

and judgment of the Wisconsin Supreme Court, rendered

in this proceeding on April 10, 1992 and finalized by denial

of a motion to reconsider on June 2, 1992.

OPINION BELOW

The opinion of the Wisconsin Supreme Court, is

reported in 167 Wis.2d 549, 482 N.W.2d 93, (1992) and the

opinion of the Wisconsin Court of Appeals is reported in

160 Wis.2d 536, 466 N.W.2d 683 (1991). Both appear in

the appendix hereto. (A-3 and A-18 respectively).

JURISDICTION

The petitioner is seeking review of the Wisconsin

Supreme Court’s decision dated April 10, 1992. A motion

to reconsider by the petitioner was denied by the

Wisconsin Supreme Court on June 2, 1992 and this

Petition for Certiorari was filed within ninety days of that

date. This court’s jurisdiction is invoked under 28 U.S.C.

§1257(a).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 28, §1983:

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. For the purposes of this section,

any Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the

District of Columbia.

STATEMENT OF THE CASE

Curtis R. Vorwaid, after nearly eighteen years of

employment as a custodian for the School District of River

Falls, Wisconsin, was terminated by the River Falls School

District on September 19, 1988. (Brenden affidavit, R-

15). The decision to terminate Vorwald was allegedly

made on the basis of his inability to perform his job due to

certain work restrictions placed on him as a result of a

workplace injury he suffered August of 1987. (Healy

affidavit, R-15).

At the time Vorwald was terminated, the River

Falls School District had a specific policy in place

regarding the dismissal of non-certified support staff, such

as Curtis R. Vorwald. This policy clearly and specifically

states the Board of Education was obligated to provide a

non-certified support staff employee with written notice of

the grounds for termination and an opportunity to be

heard, before terminating such employee. (A-27).

It is undisputed that Curtis R. Vorwald did not

receive any written notice of the grounds for termination

prior to the school district termination of his employment

on September 19, 1988. Further, the school district has

not claimed it gave Curtis R. Vorwald any written notice

at all of its intention to terminate his employment or its

intention to even consider terminating his employment on

September 19, 1988.

However, the facts are in dispute as to whether or

not Curtis R. Vorwald received any oral notice, prior to

I*R*" hereafter refers to the record transmitted to the Court of

Appeals by the Clerk of Court for Pierce County.

3

the September 19, 1988 meeting of the school board, of

the school district’s intention to terminate his employment

or its intention to even consider terminating _ his

employment. (Vorwald and Brenden Affidavits R-19

&16). The facts are also disputed as to whether or not

Curtis R. Vorwald was unable to perform his duties as

custodian with the school district.

Curtis R. Vorwald filed a complaint in Circuit Court

for Pierce County, Wisconsin against the School District of

River Falls, the River Falls Board of Education and

Charles Brenden, Superintendent of Schools, under Title

42, U.S.C. §1983, alleging a violation of Vorwald’s rights

under the Fifth Amendment of the United States

Constitution, as enforced through the Fourteenth

Amendment. Vorwald alleged he had been terminated

without due process. (R-2)

Approximately one month before trial, the

defendants moved for summary judgment on the ground

that Vorwald had no property interest under Wisconsin

law and that Vorwald had failed to exhaust administrative

remedies under the Wisconsin Workers’ Compensation

Act. (R-7)

The Wisconsin circuit court granted the defendants’

motion for summary judgment on the basis that the

exclusivity provision of the Wisconsin Workers’

Compensation Act barred Vorwald’s 1983 action.

Vorwald’s motion for reconsideration was denied by the

circuit court.

Vorwald appealed the circuit court decision to the

Wisconsin Court of Appeals. The Wisconsin Court of

Appeals reversed the circuit court’s summary judgment

order and ruled in favor of Vorwald and remanded the

matter back for trial.

The defendants requested certiorari to the

Wisconsin Supreme Court. Although the Court of

Appeals felt the issue of property interest had not been

raised (A-22), the Wisconsin Supreme Court held that the

issue of whether Vorwald had a property interest in his

employment was properly raised by the school district in

its brief before the Wisconsin Court of Appeals. (A-5 and

A-6).

It should be noted that the defendants in their brief

to the Wisconsin Court of Appeals (at page two) conceded

there is a material issue of fact concerning whether or not

Curtis R. Vorwald did have a property interest in his

employment, based upon the theory that the board’s

dismissal policy for non-certified support staff created a

contractual right in favor of Curtis R. Vorwald.

Despite this concession, the Wisconsin Supreme |

Court held that the personnel policy did not abrogate |

Vorwald’s employee-at-will status and the policy does not |

rise to the level of rules or understandings that stem from |

an independent source such as state law that are required

to support claims of entitlement under Roth and therefore

Vorwald had no property interest in his employment.

Vorwald v. School District of River Falls, 167 Wis.2d 549,

482 N.W.2d 93 (1992) (A-10). In a concurring opinion,

one of the justices questioned whether or not the property

interest question had been fully briefed. (A-10). A request

for reconsideration for that reason was, however, denied.

Se ee

REASONS FOR GRANTING THE WRIT

|. THE WRIT SHOULD BE GRANTED BECAUSE

THE DECISION BELOW IS IN CONFLICT WITH

THIS COURT’S PRIOR HOLDINGS IN BOTH BD. OF

REGENTS OF STATE COLLEGES V. ROTH AND

PERRY V. SINDERMANN WITH REGARD TO THE

SCOPE OF A PROPERTY INTEREST.

In Board of Regents of State Colleges v. Roth, 408

U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972), the facts

showed Roth was hired for a term of one academic year

aS an assistant professor at a state university. When, at

the end of his term, he was informed without reason that

he would not be rehired for the next academic year, Roth

claimed that the failure to give him notice of the reasons

for his nonretention and an Opportunity for a hearing was

in violation of his right to procedural due process. The

Supreme Court held that there was no deprivation of a

property interest in continued employment because the

terms of his employment specifically provided for only a

one-year term. More importantly, the Court held that "nor

significantly was there any state statute or University rule

or policy that secured his interest in re-employment or that

crated any legitimate claim to it." Roth, 408 U.S. 564, 578,

33 L.Ed.2d at 561 (emphasis added). Because he was not

tenured, he was not entitled to the Statutory procedural

rights that tenured professors are entitled to. Further,

university rules only provided for notice and hearing of

nontenured faculty when they were discharged before their

term had expired, thus Roth was not entitled to those

procedural protections either. Justice Stewart, in writing

the opinion of the Supreme Court, defined the Standard in

determining what is a protectible property interest:

To have a property interest in a

benefit, a person clearly must have more

than an abstract need or desire for it. He

must have more than a_ unilateral

expectation of it. He must instead have a

legitimate claim of entitlement to it.

Property interests are not created by the

Constitution. Rather, they are created and

defined by existing rules or understandings

that stem from an independent source such

as_ state law-rules or understandings that

secure certain benefits _and_ that support

claims of entitlement to those benefits.

Roth, 408 U.S. 567, 577, 33 L.Ed.2d at 560.

(emphasis added).

Roth's companion case, Perry v. Sindermann, 408

U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972), clarified

the Roth rule. In Singermann, a nontenured state college

professor who had been employed in the college system

for ten years, the last four as a junior college professor

under a series of written one-year contracts, was declined

re-employment without notice or hearing. Sindermann

also claimed that the lack of notice and hearing violated

his procedural due process rights. The Supreme Court

held that although a subjective expectancy of tenure is not

protected, proof that the college had a defacto tenure

policy, arising from _rules_and_ understandings Officially

promulgated (emphasis added), would entitle him to

procedural protections of notice and hearing. The Court

ultimately found no property interest to exist and Justice

Stewart, again writing for the Court, stated:

Not only are property interests created by

nee

State law, but they can also be created by a

broad range of interests that are secured by

existing rules or understandings. Property

interests are not limited by a few rigid,

technical forms, but agreements can be

implied from the promisor’s words or

conduct in light of the surrounding

circumstances. Sindermann, 408 U.S. 593,

602, 33 L.Ed.2d at 580.

The River Falls School District’s personnel policy

clearly specifies that the Board of Education was obligated

to provide a non-certified staff employee (such as

Vorwald) with written notice of the grounds for

termination and an opportunity to be heard, before

terminating such employee. (A-27). This school district’s

policy, under Sindermann and Roth, creates a property

interest. The policy was an existing rule or understanding

stemming from an independent source that secured certain

benefits for Curtis Vorwald and that supported his claim

of entitlement to those benefits.

In the case of Oddsen v. Bd. of Fire and Police

Commissioners for the City of Milwaukee, 108 Wis.2d 143,

321 N.W.2d 161 (1982), the Wisconsin Supreme Court,

citing Roth, stated that public employment was a property

interest. Oddsen, 321 N.W.2d at 170. However, in its

decision below, the Wisconsin Supreme Court overruled

that language. Then, contrary to this Court’s decisions in

Roth and Sindermann, the Wisconsin Supreme Court held

that the River Falls Public School District’s personnel

policy did not create a property in petitioner’s

employment. The Wisconsin Supreme Court held that

property interests can only be created by "civil service

regulations or laws, or a contract or collective bargaining

8

agreement." Vorwald v. School District of River Falls, et

seq., 167 Wis.2d 549, 482 N.W.2d 93 (1992). (A-9).

Four years ago in reversing a decision of the

Wisconsin Supreme Court, this Court held in Felder _v.

Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L.Ed.2d 123

(1988), that the "supremacy clause imposes on state courts

a Constitutional duty to proceed in such a manner that all

substantial rights of the parties under controlling federal

law are protected." 108 S.Ct. at 2313 (citations omitted).

The Wisconsin Supreme Court’s ruling below limits

the definition of a property interest to areas narrower

than the rulings in Bd. of Regents of State Colleges v.

Roth and Perry v. Sindermann and contrary to the

mandate cited by this Court in Felder v. Casey.

Il. THE WRIT SHOULD BE GRANTED BECAUSE

THE FEDERAL CIRCUIT COURTS ARE IN

CONFLICT ON THE INTERPRETATION OF THiS

COURT’S HOLDINGS IN BD. OF REGENTS OF

STATE COLLEGES V. ROTH AND PERRY _V.

SINDERMANN AS THEY APPLY TO IDENTIFYING

PROPERTY INTERESTS.

The Roth/Sindermann rule is the standard still used

today in determining whether a property interest exists.

However, the federal circuit courts are in conflict in

interpreting this rule.

Some of the federal circuits, like the Wisconsin

Supreme Court, have interpreted this rule very narrowly,

only allowing a property interest to exist where it is

defined by state law. In a 10th circuit case, Bailey v. Kirk,

777 F.2d 567 (10th Cir. 1985), a police chief challenged the

constitutionality of the city code and personnel policy that

allowed discharge or suspension only for cause and

provided for notice and hearing only if the suspension was

for more than ten days. The court held that the police

chief had a protectible property interest that was

implicated when he was suspended for four days under the

“for cause" provision of the city code. In so holding, the

10th Circuit stated that the "plaintiff's property interest in

his employment was created, defined and governed by

state iaw." Bailey, 777 F.2d at 573, citing Cleveland Bd. of

Ed. v. Loudermill, 470 U.S. 532, 84 L.Ed.2d 494, 105 S. Ct.

1487 (1985).

Similarly, in an 11th Circuit case, a former

lieutenant with the sheriff's department brought a Section

1983 action claiming a deprivation of procedural due

process when he was suspended and eventually demoted.

Nolin v. Douglas County, 903 F.2d 1546 (11th Cir. 1990).

The court stated, citing to Bishop v. Wood, 426 U.S. 341,

96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)), that "the sufficiency

of a person’s claim of entitlement to continued

employment must be determined by reference to state

law... [a]ecordingly, we must analyze the law of Georgia to

determine whether Nolin had a property interest in

continued employment." Nolin, 903 F.2d at 1553. Since

the Georgia statute provided that indefinite hiring

contracts, such as this one, are terminable at will, there

was no "reasonable expectation of continued employment

to form a protectible property interest." Id. However, the

full force of this holding is uncertain because the 11th

Circuit further states that an employee could show a

property interest if he occupies a position from which he

can be terminated only for cause with reference to "laws,

regulations, or personnel policies." Id. The 11th Circuit is

unclear as to whether those personnel policies creating

10

property interests must also be derived from state law,

whether they can create property interests as long as they

do not conflict with state law, or whether personnel

policies can only be looked at to fill in the blanks or when

there is no state law at all.

The 4th, 6th and 9th Circuits have interpreted Roth

as allowing a property interest to be defined by other

"rules or understandings" rather than being defined solely

under state laws such as statutes. More specifically, these

courts hold that although a property interest can be

defined by state law, it can also be defined by "rules or

understandings that secure certain benefits and that

support claims of entitlement to those benefits." Roth, 408

U.S. 564, 577, 33 L.Ed.2d at 561.

In Bradley _v. Colonial Mental Health & Ret.

Services, 856 F.2d 703 (4th Cir. 1988), a husband and wife

claimed a violation of their procedural due process rights

when their employer did not follow its own grievance

procedures set forth in its personnel policy. The court

held that the standard set forth in the board’s personnel

manual "vested with the plaintiffs a claim of entitlement to

their continued employment that the Fourteenth

Amendment insulates from arbitrary deprivation." Bradley,

856 F.2d at 707. The "existence of a personnel policy is

not a litmus test for due process [rather] each employment

relationship must be examined carefully to determine

whether an employer has undertaken an _ objective

obligation to which its employees may justifiably claim

entitlement. Bradley, 856 F.2d at 708. The 4th Circuit

further stated that "employee manuals are accepted and

relied upon by those from whom the employer reaps the

fruit of continuing labor." Id. Although the 4th Circuit

stated the sufficiency of the claim of entitlement must be

11

decided with reference to state law, the court found a

property interest in an employment manual, without regard

to state law. See also Sabet v. Eastern Virginia Medical

Authority, 775 F.2d 1266 (4th Cir. 1985)(property interests

are created and defined by existing laws, rules or

understandings, usually defined by state law, that support

enforceable claims of entitlement. Property interests can

arise out of informal or implicit rules or understandings

[emphasis added}).

In Edinger v. Bd. of Regents, 906 F.2d 1136 (6th

Cir. 1990), an associate professor filed a section 1983 claim

for violation of his due process rights when he was led to

believe he was tenured. The court distinguished this case

from Sindermann in that there was no formal tenure policy

existing as in Edinger. However, although the court did

not find a property interest due to lack of compelling facts,

it did recognize that "even where formal tenure system is

in place, when a university awards a nontenured employee

the prerequisites of tenure and otherwise leads the

employee to reasonably believe his employment is

permanent, such actions may create a property interest in

continued employment." Edinger, 906 F.2d at 1140. See

also Thomas-Lazear v. FBI, 851 F.2d 1202 (9th Cir.

1988)(property interests can be created from mutually

explicit understandings created by representations of

government Officials).

Other Circuits, such as the Ist, Sth and 7th, hold

that these "rules or understandings" can only be looked at

to fill in the blanks or where there is no applicable state

law. In Correa-Martinez v. Arrillaga-Belendez, 903 F.2d

49 (1st Cir. 1990), the court explained the Sindermann rule

as depending on "pockets of uncertainty. Where an

employment scheme--whether statutory, contractual or

12

a

mixed--is silent on specific points, pocketed with fissures,

or infected by a serious strain of ambiguity, an employer’s

conduct or declarations may quite appropriately be used

to fill the gaps." Correa, 903 F.2d at 55. Correa involved

an administrative employee that was named to a trust

position in Puerto Rico’s judicial system. The plaintiff

claimed that the letter he received appointing him to a

trust position, stating his permanency of employment was

dependent on his performance, was an independent source

from which a legitimate expectation of continued

employment arose, thereby creating a property interest.

The court denied his due process claim and held that while

“an employer’s unilateral declarations, promises or conduct

regarding conditions of continued employment might in

some circumstances create a legitimate claim of

entitlement to job tenure", the facts in this case did not

rise to this level, and to hold otherwise, in this case, may

disrupt the elaborate civil service system that was in place.

Correa, 903 F.2d at 55.

The 7th Circuit also has held that absent a

controlling state statute, evidence of a policy or practice

upon which a legitimate claim of entitlement can be based

may provide a basis for the property right. Patkus v.

Sangamon-Cass Consortium, 769 F.2d 1251 (7th Cir. 1985).

In Patkus, the court held that although the personnel

policy stating that CETA employees could be dismissed

only for cause had not been adopted, the policy gave the

CETA director a property interest in her continued

employment which could not be terminated without due

process. Patkus, 769 F.2d 1251. See also Staheli v. Univ.

of Miss. 854 F.2d 121 (Sth Cir. 1988) (If school had no

formal tenure system but set up explicit or implicit

conditions then school cannot violate the very agreement

that it created without due process).

13

ae

Ill. THE DECISION BELOW, AND OTHER SIMILAR

HOLDINGS, RAISE SIGNIFICANT DUE PROCESS

IMPLICATIONS AND AFFIRMS THE NEED FOR

CLARIFICATION BY THIS COURT ON THE SCOPE

OF A PROPERTY INTEREST.

It is axiomatic that property interests are important

and when one is found to exist, they cannot be deprived

without due process. Cleveland Bd. of Ed. v. Loudermill,

470 U.S. 532, 105 S.Ct. 1487 (1985). It is also clear that

property interests ought to be defined beyond the confines

of state law where appropriate. A close reading of the

rule in Roth points this out. The Supreme Court did not

State that property interests are derived solely from state

law, rather it stated that property interests are defined by

sources independent of the Constitution "such as state law

or rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits." Roth

408 U.S. 564, 577, 33 L.Ed.2d at 561 (emphasis added).

Although the implications of this case go beyond

employment, this is the area involved in this case. In his

dissent in Roth, Justice Marshall Stated:

Employment is one of the greatest, if not

the greatest, benefit that governments offer

in modern day life. When something as

valuable as the Opportunity to work is at

stake, the government may not reward some

citizens and not others. without

demonstrating that its actions are fair and

equitable. It is procedural due process

that’s our fundamental guarantee of fairness,

Our protection against arbitrary Capricious

14

and unreasonable government action. Roth,

408 U.S. 564, 589, 33 L.Ed.2d at 568.

The right to work for a living is the "very essence of

the personal freedom and opportunity that it was the

purpose of the 14th Amendment to secure." Roth, 408

U.S. 564, 588, 33 L.Ed.2d at 567 (Marshall, J., dissenting).

Employment and the right to procedural due

process are highly valued in our society. To limit a

citizen’s due process rights by allowing them to claim a

property interest that can only be defined by state law is

to ultimately impinge on that right. This is not to say that

all employees automatically have a protectible property

interest entitling them to notice and hearing prior to

termination *. However, employees should be able to rely

on the protections afforded them under the employer’s

own discharge policies. This Court has held that "a

purpose of the ancient institution of property is to protect

those claims upon which people rely in their daily lives,

reliance that must not be arbitrarily undermined." Roth,

408 U.S. 564, 577, 33 L.Ed.2d at 561.

Property is a "broad and majestic" term. It is

“among the great constitutional concepts . . . purposely left

to gather meaning from experience. [It relates] to the

whole domain of social and economic fact and the

*However,"[i]t may be argued that to provide procedural due

process to all public employees or prospective employees would place

an intolerable burden in the machinery of government .. . It can

scarcely be argued that government would be crippled by a

requirement that the reason be communicated to the person most

directly affected by the government’s decision.". Roth, 408 U.S. 564,

591, 33 L.Ed.2d at 569. (Marshall, J., Dissenting).

15

statesmen who founded this nation knew only too well that

a stagnant society remains unchanged." Bartlett v. Krause,

209 Conn. 352, 55 A.2d 710, 716 (Conn. 1988), citing Nat’!

Ins. Co. v. Tidewater Co., 337 U.S. 582, 69 S.Ct. 1173, 93

L.Ed. 1556 (1949)(Frankfurter, J., dissenting)(other

citations omitted). Furthermore, "due process is flexible

and calls for such procedural protections as the particular

situation demands." Bartlett, citing Morrissey v. Brewer,

408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

With these basic underlying principles of property

interests and the due process clause in mind, and the

conflict among the federal and state courts as to what

constitutes a property interest, the Supreme Court needs

to step in and clarify under what circumstances a property

interest in employment exists. If this important principle

is not clarified, courts such as the Wisconsin Supreme

Court will continue to narrowly construe the circumstances

under which a property interest may be created, in direct

conflict with the parameters set forth in Sindermann and

Roth.

16

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Wisconsin

Supreme Court.

Respectfully submitted,

August, 1992.

DAVISON & VLACK

*Edward F. Vlack III

John M. O’Boyle

Attorneys for Petitioner

200 East Elm Street

River Falls, Wisconsin 54022

Telephone: (715) 425-1525

*Counsel of Record

17

APPENDIX

SUPREME COURT

OF WISCONSIN

P.O. BOX 1688

MADISON, WI 53701-1688

REMITTITUR

APPEAL NO. 90-1908-FT

T.Ct. NO. 89-CV-128

Curtis R. Vorwald,

Plaintiff-Appellant,

¥.

School District of River Falls,

River Falls Board of Eduction,

and Charles R. Brenden,

Superintendent of Schools,

Defendants-Respondents-Petitioners.

This cause was an appeal to review the judgment of

the circuit court of Pierce County. Upon consideration, it

is ordered and adjudged by an opinion filed on April 10,

1992, that:

The decision of the court of appeals is reversed.

Shirley S. Abrahamson Wrote Concurring Opinion

Louis J. Ceci Wrote Decision/Opinion

The appeal record is hereby returned to the Clerk

of Circuit Court for Pierce County.

A-1

1 certify that the above is a correct

transcript of the original order and

judgment of the court in the above-

entitled cause.

Dated:

June 02, 1992.

/S/MLG

Marilyn L. Graves

Clerk, Supreme Court

Curtis R. VORWALD. Plaintiff-Appellant,t

Vv

SCHOOL DISTRICT OF RIVER FALLS, River Falls

Board of Education and Charles R. Brenden, Super-

intendent of Schools. Defendants-Respondents-

Petitioners.

Supreme Court

No. 90-1908-FT. Oral argument January 23, 1992.—Decided

April 10, 1992

(Reversing 160 Wis. 2d 936, 466 N.W.2d 683 (Ct. App. 1991).)

(Also reported in 482 N.W.2d 93.)

REVIEW of a decision of the Court of Appeals.

Reversed.

For the defendants-respondents-petitioners there

were briefs by Cassandra B. Westgate and Terwilliger,

Wakeen, Piehler & Conway, S.C., Wausau and ora] argu-

ment by Ms. Westgate

For the plaintiff-appellant there was a brief by

Edward F. Vlack, John M O'Boyle and Davison &

Vlack, River Falls and oral argument by Edward F

Vlack.

LOUIS J. CECI, J. This case is before the court

on petition for review of a published decision of the

court of appeals, Vorwald v. River Falls School Dist.. 160

Wis. 2d 536, 466 N.W.2d 683 ‘Ct. App. 1991), reversing a

summary judgment by the circuit court for Pierce

County, Robert W. Wing, Circuit Judge. The circuit

court dismissed Curtis R. Vorwald’s (Vorwald) 42 U.S.C.

sec. 1983 (sec. 1983) claim because the court determined

that Vorwald's exclusive remedy was under the Wiscon.

OFFICIAL WISCONSIN REPORTS

Vorwald v. School Dist. of River Falls. 167 Wis. 2d 549

sin Worker's Compensation Act, secs. 102.01-102.89,

Stats. (WCA). The court of appeals reversed, finding

that the WCA does not bar a sec. 1983 claim when the

state terminates an employee without adequate notice

and an opportunity to respond. Vorwald, 160 Wis. 2d at

539. Because we find that Vorwald was an employee at

will and therefore had no substantive right to continued

employment, we reverse the court of appeals.

The relevant facts are not in dispute. Vorwald was a

custodian for the school district of River Falls (the

school district). Prior to his termination, Vorwald suf-

fered a work-related injury which resulted in his no

longer being able to wet-mop or to lift anything weighing

more than 20 pounds. At a meeting of the school board

(the board) on September 19, 1988, the board's person-

nel committee recommended to the board that Vorwald's

employment be terminated, due to Vorwald's work

restrictions. Based on that recommendation, the full

board then voted to terminate Vorwald's employment.

Vorwald was present at the meetings of both the board

and the personnel committee. Vorwald filed a summons

and complaint in circuit court on April 26, 1989, alleging

that his termination violated 42 U.S.C. sec. 1983.

[1, 2]

Whether Vorwald has a valid sec. 1983 claim is a

question of law. We decide questions of law without def-

erence to the decisions of the lower courts. Pulsfus

Farms v. Town of Leeds, 149 Wis. 2d 797, 803-04, 440

N.W.2d 329 (1989).

Vorwald's complaint alleged a violation of procedu-

ral due process. A sec. 1983 action may be brought for a

violation of procedural due process. Zinermon v. Burch,

494 U.S. 113, 125 (1990). However, "[t]he requirements

of procedural due process apply only to the deprivation

of interests encompassed by the Fourteenth Amend-

A-4

OFFICIAL WISCONSIN REPORTS

Supreme Court

ment's protection of liberty and property.". Board of

Regents v. Roth, 408 U.S. 564, 569 (1972). As the court

of appeals correctly stated, "If Vorwald has a property

right in his employment, the state cannot deprive him of

this right without due process." Vorwald, 160 Wis. 2d at

542. We must therefore examine whether Vorwald has a

property interest in his employment.

The court of appeals did not address the issue of

whether Vorwald had a property interest in his employ-

ment. Rather, the court of appeals stated: "The school

district maintains that Vorwald has no recognizable

property interest in his employment. Because this issue

is neither argued nor briefed, we decline to address it.”

Vorwald, 160 Wis. 2d at 542 n.3. The school district

maintains that it argued Vorwald's lack of a property

interest in his employment at both the circuit court and

the court of appeals. We agree with the school district

that the issue of whether Vorwald has a property interest

in his employment has been argued continuously from

the inception of the case.

The amended answer filed in circuit court by the

school district states: "Plaintiff has failed to state a

claim upon which relief can be granted because the Com-

plaint does not set forth any cognizable deprivation of

any rights, privileges or immunities extended by the

United States Constitution or the Constitution of the

State of Wisconsin.” Additionally, in its Notice of

Motion and Motion for Summary Judgment, the school

district argued that "the Plaintiff has no cognizable

property interest under Wisconsin law which ts required

for the Plaintiff to prevail under Section 1983" (empha-

sis added). Furthermore, in its brief in support of its

motion for summary judgment, the school district

argued:

OFFICIAL WISCONSIN REPORTS

Vorwald v. School Dist. of River Falls, 167 Wis. 2d 549

[Vorwald] cannot claim thet he had any right to con-

tinued employment, which is what is required to

demonstrate a property interest, because the

Worker's Compensation Act has usurped the field

. . and has set forth exactly what rights an injured

worker has in his employment.

Accordingly, Platntiff's claim for violation of a

due process right must fail where no property inter

est can be shown under Wisconsin law.

(Emphasis added.) Finally, in its reply brief in support of

its motion for summary judgment, the schoo! district

concluded:

«

[Given the existence and applicability of the exclu-

sive remedy provisions under the Worker's Compen-

sation Act and alternatively, the Wisconsin Fair

Employment Act, the interest which [Vorwald]

claims in his job right would not amount to entitle-

ment under the facts of this case. Contrary to

[Vorwald's] claim that public employment in and of

itself creates a property interest in Wisconsin,

employment at will is the rule absent a showing of

entitlement or some enforceable basis for a continued

expectation of employment

(Emphasis added.) The above excerpts from the circuit

court record show that the issue of whether Vorwald had

a property interest in his employment was raised and

argued by the school district at the circuit court level.

[3]

In the school district's brief before the court. of

appeals, the school district argued:

[Vorwald] has no recognizable property interest in

employment under Wisconsin's laws; and that even if

he did, the availability of a Worker's Compensation

Hearing provides adequate due process . . -

A-6

OFFICIAL WISCONSIN REPORTS

Supreme Court

What the [school district is] saying is that the facts of

this case are based upon a property interest in

employment; that such a Property interest ts deter

mined by reference to interest created and enforcea

ble under State law, and that there is no interest that

is enforceable under State law in this case because of

the operation of the Worker's Compensation Act.

The exclusivity provisions of that Act operate to pre-

clude any enforceable property interest in employ-

ment, which is a necessary basis for a procedural due

process claim.

(Emphasis added.) As the above excerpts illustrate, the

school district's argument at the court of appeals focused

upon whether the operation of the WCA precluded the

existence of an enforceable property interest in employ-

ment. However, the arguments address the general issue

of whether Vorwald had a property interest in his

employment.' We therefore find that the issue of

whether Vorwald had a property interest in his employ-

ment was also raised before the court of appeals. Accord-

ingly, the school district is not raising this issue for the

first time on appeal, as Vorwald contends. We therefore

believe that the court of appeals should have addressed

this issue.

[4]

The school district argues that Vorwald had no

property interest for two reasons: (1) He was an

employee at will, and (2) the applicability of the WCA

precludes the existence of an enforceable entitlement to

'For a discussion of the difference between issues and argu

ments, see State v. Weber, 164 Wis. 2d 788, 789-91, 476 N.W.2d

867 (1991) (on motion for reconsideration)

A-7

OFFICIAL WISCONSIN REPORTS

Vorwald v Schoo! Dist. of River Falls. 167 Wis. 2d 549

continued employment. We agree with the school dis

trict that Vorwald was an employee at will and, there-

fore, do not reach the issue of whether the WCA can

preclude the existence of an enforceable entitlement to

continued employment.

Vorwald asserts that he had a property interest in

his employment due to this court's decision in Oddsen v.

Board of Fire & Police Comm'rs, 108 Wis. 2d 143, 159.

321 N.W.2d 161 (1982), where we stated that "[p]ublic

employment is a property right." Vorwald also argues

that he had a property interest in his employment due to

the board's personnel policy No. 4210,2 which he argues

either created a contract under Holloway v. K-Mart

Corp., 113 Wis. 2d 143, 334 N.W.2d 570 (Ct. App. 1983),

or provided "rules or understandings that secure certain

benefits and that support claims of entitlement to those

benefits,” under Roth, 408 U.S. at 577.

In determining whether Vorwald had a property

interest in his employment, we look to state law.

2The board's personnel policy No. 4210 provides in relevant

part as follows:

The Board may dismiss any non-certified employee upon recom.

mendation by the superintendent. The superintendent shall apecify

the grounds for the dismissal in a written statement, which shall be

filed with the Board. Any non-certified employee may be dismissed

for those causes which are specified in Administrative Procedure No

4210.a, although the causes set forth in that procedure are not

intended to be exclusive

Upon receipt of the superintendent's recommendation relating

to the dismissal of any non-certified employee, the Board shall pro

vide the employee with written notification of the proposed dismis

sal, along with a statement of the grounds for the proposed dismissal.

Such notification shall also advise the employee of his or her night to

a hearing on the question of the proposed dismissal. No non-certified

employee may be dismissed except by a majority vote of those Board

members present when such a vote is taken

Vorwald apparently was a “non-certified employee.”

A-8

OFFICIAL WISCONSIN REPORTS

Supreme Court

Property interests, of course, are not created by the

Constitution. Rather, they are created and their

dimensions are defined by existing rules or under-

standings that stem from an independent source such

as state law—rules or understandings that secure cer-

tain benefits and that support claims of entitlement

to those benefits.

Id

[5-7]

Under Wisconsin law, employment at will is the

rule. Absent civil service regulations or laws, or a con-

tract or collective bargaining agreement, a municipal

employee is an employee at will and has no property

interest in employment. See Castelaz v. Milwaukee, 94

Wis. 2d 513, 520, 289 N.W.2d 259 (1980): Adamczyk v

Caledonia, 52 Wis. 2d 270, 273-74, 190 N.W2d 137

(1971); accord Amendola v. Schliewe, 732 F.2d 79, 83

(7th Cir. 1984); compare Hough v. Dane County, 157

Wis. 2d 32, 40-42, 458 N.W.2d 543 (Ct. App. 1990) (stat-

utes may provide an entitlement to employment).

Vorwald's argument that our decision in Oddsen

changed the general rule of employment at will for public

employees is misplaced. In Oddsen, the Chief of the Mil-

waukee Police Department directed that two Milwaukee

police officers be discharged. Pursuant to sec. 62.50(13).

Stats., the Chief filed a complaint with the Board of Fire

and Police Commissioners, setting forth the reasons for

the discharge. Due to the protection afforded them by

statute, the police officers in Oddsen had property inter-

ests in their employment. Although we stated in Oddsen

that “[pJublic employment is a property right,” Oddsen,

108 Wis. 2d at 159, we should have qualified that state

ment to say that public employment is a property right

for those public employees given tenure by operation of

civil service regulations or laws. Oddsen was not meant

A-9

OFFICIAL WISCONSIN REPO!

V rwald vy Schoo! Dist. of R ver [alls Wiis 1 049. {

to and in no way altered Wisconsin's long-standing rule

of employment at will.

[8]

In addition, based on the record before us, we find

that the schoo! district's personnel policy No. 4210 did

not alter Vorwald's employee-at-will status. In some lim

ited circumstances, employee handbooks and personnel

policies can abrogate the employment-at-will relation

ship. See Ferraro v. Koelsch, 124 Wis. 2d 154, 157-58,

368 N.W.2d 666 (1985); Holloway, 113 Wis. 2d at 146.

However, the single personnel policy standing alone in

this case, without any evidence indicating that Vorwald

and the school district agreed to be bound by the terms

of the policy, does not rise to the level of a contract,

either implied or otherwise. Therefore, the school dis-

trict's "common-law right to discharge an employee at

any time without cause was not limited by its self-

imposed policies regarding discharge.” Holloway, 113

Wis. 2d at 146.

[9]

Furthermore, because we find that the personnel

policy did not abrogate Vorwald's employee-at-will sta-

tus, the policy does not rise to the level of "rules or

understandings that stem from an independent source

such as state law” that are required to “support claims of

entitlement” under Roth, 408 U.S. at 577.

Because we find the issue of whether Vorwald had a

property interest in his employment controlling in this

case, we do not address the remaining issues raised by

the parties.

By the Court.—The decision of the court of appeals

is reversed.

SHIRLEY S. ABRAHAMSON, J. (concurring I

do not join the majority opinion's holding that the court

A-10

Supreme Court

of appeals should have addressed the issue of whether

Vorwald had a recognizable property interest in his

employment. Majority opinion at 556. I conclude, as did

the court of appeals, that the school district mentioned

the recognizable property interest issue in passing, with-

out developing the issue in the court of appeals brief.’

Because the school district did not brief the issue in the

court of appeals, I conclude that the court of appeals, in

its discretion, could have declined to address this issue.?

The court of appeals has similarly exercised its discre-

tion in a number of cases.3 Indeed, even if a party does

'The opinion of the court of appeals states: "The school

district maintains that Vorwald has no recognizable property

interest in his employment. Because this issue is neither argued

nor briefed, we decline to address it. See Jn re Balkus, 128 Wis. 2d

246, 255 n. 5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985)." Vorwald

v. River Falls School Dist., 160 Wis. 2d 536, 542 n.3, 466 N.W.2d

683 (Ct. App. 1991).

The court of appeals, in its discretion, also could have

addressed the issue or asked for supplemental briefs.

So that the reader may evaluate the court of appeals’ decision

not to address the issue, I have quoted at note 7 the school

district's full discussion of its claim that Vorwald has no recogniz-

able property interest in employment.

3See, e.g., In the Interest of J.A.B., 153 Wis. 2d 761, 769, 451

N.W.2d 799 (Ct. App. 1989) (appellant "does not develop that

argument, however, nor does she refer us to any authority to

shore up her assertions. . . . Consequently, we deem the issue

abandoned."); Polan v. Department of Revenue, 147 Wis. 2d 648,

660, 433 N.W.2d 640 (Ct. App. 1988) ("We deem abandoned a

position turning on a point of law known to exist but not briefed

or argued."); In re Balkus, 128 Wis. 2d 246, 254, 381 N.W.2d 593

(Ct. App. 1985) (claimant "cites no cases or authority in support

of her argument. In light of the inadequate briefing of this issue

we decline to address it.”); Reiman Associates v. R/A Advertising,

102 Wis. 2d 305, 306, n.1, 306 N.W.2d 292 (Ct. App. 1981) (In

A-11

OFFICIAL WISCONSIN REPORTS

1 Dist. of River Falls, 167 Wis. 2d 549. Concur

. orwald Vv. Scho

brief the issue, an appellate court has discretion not to

decide the issue. Our court has picturesquely written:

"An appellate court is not a performing bear, required to

dance to each and every tune played on an appeal.” State

v. Waste Management of Wisconsin, Inc., 81 Wis. 2d

555, 564, 261 N.W.2d 147 (1978).

This court does not generally review the court of

appeals’ exercise of discretion,‘ and I would not do so in

their notice of cross-appeal, plaintiffs specified as objectionable

that portion of the judgment dismissing with prejudice their com

plaint against the individual defendants. That issue has not been

briefed or argued on appeal, and we deem it abandoned.) State

Shaffer, 96 Wis. 2d 531, 546, 292 N.W.2d 370 (Ct. App. 1980)

("The argument is supported merely by a general citation to four

pages from the record where the trial court denied a motion to

strike concerning this unspecified earlier testimony. Such an

appellate argument is inadequate and does not comply with sec

809.19(1)(e), Stats. In the future this court will refuse to consider

such an argument, or summarily affirm on this issue. Section

809.83(2).")

Section 809.19(1)(e), Stats. 1989-90, provides in part

(1) The bnef must contain

(e) An argument arranged in the order of the statement of

issues presented. The argument on each issue must be preceded by a

one sentence summary of the argument and 1s to contain the conten

tion of the appellant, the reasons therefor, with citations to the

authorities, statutes and parts of the record relied on as set forth in

the Uniform System of Citation

Section 809.83(2), Stats. 1989-90, provides

(2) Noncompliance with rules. Failure of a person to comply

with a requirement of these rules, other than the timely filing of a

notice of appeal or cross-appeal, does not affect the junsdiction of

the court over the appeal but is grounds for dismissal of the appeal,

summary reversal, striking of a paper, imposition of a penalty or

costs on a party or counsel, or other action as the court considers

appropriate

4State v. McConnohie, 113 Wis. 2d 362, 368-69, 334 N.W.2d

A-12

On a & .

if] vy PIN SUE Gd

this case.* Nor would I criticize the court of appeals

explicitly or implicitly for failing to address an issue (or

if you prefer, for failing to address an argument)® not

briefed in that court.

The majority opinion places a significant burden on

the court of appeals by holding, in effect, that the court

of appeals errs when it fails to address every issue or

argument a party's brief may mention in passing. This is

a burden no court can manage.

I believe the appellate practice rules applicable t

Is case can be summarized briefly as follows

Issue Must Be Preserved. If a litigant wants ar

ippellate court to decide an issue as a matter of right, the

party must preserve the legal issue for appellate review

903 (1983); Aparacor, In ILHR Dep't, 97 Wis. 2d 399. 404

293 N.W.2d 545 (1980)

5] add however, that the court of appeals declination to

review this unbriefed issue makes good sense. Because neither the

circuit court nor the court of appeals addressed the issue of

Vorwald's recognizable property interest, the parties could have

addressed that issue in circuit court on remand. Indeed. Vorwald

argues in this court that the intent and practice of the parties

regarding the employment contract is an issue of fact that should

be decided at trial

®l use the word issue, but the reader may, if he or she wishes.

substitute the word argument. | do not find the majority's dis

tinction between “argument” and “issue” helpful because the dis

tinction depends on the level of generality used to state the issue

See State Weber, 164 Wis. 2d 788, 793-95, 476 N.W.2d 867

(1991) On motion tor reconsideration (Abrahamson, JJ

dissenting)

The litigants decide what issues or arguments they wil!

- :

address in the « Iircull OF appellate courts, although a court ma

( ynsider ISSUES (Or arvyuments) the parties di not address lhe

‘ ‘ , } } : ‘

litigants may frame the legal issue in broad or narrow terms

OFFICIAL WISCONSIN REPORTS

Vorwald v. Schoo! Dist. of River Fails, 167 Wis. 2d 549

by adequately alerting the circuit court and the appellate

court to the issue.

Appellate Courts’ Discretion. The court of appeals

and this court have the power to address issues even if

the parties fail to preserve these issues in the circuit

court or fail to address them in the petition for review to

the supreme court or in their appellate court briefs.

Court of Appeals. If an appellant wants the court

of appeals to address an issue, the appellant must brief

the issue in the court of appeals. If the appellant men

tions the issue in passing but does not brief it, the court

of appeals may decline to address the issue. Even if the

appellant briefs an issue, the court of appeals need not

decide the issue if it concludes another issue is

determinative.

In this case the majority opinion states the issue as

whether Vorwald had a recognizable property interest in

his employment; the majority looks to the terms of the

employment contract for the answer. As is clear from the

excerpts of the school district's briefs appearing in the

majority opinion (554-555), the school district chose to

present a different issue to the courts. It briefed only the

issue of whether the Worker's Compensation Act

deprived Vorwald of any property right.

Although the school district's brief in the court of

appeals "maintains" that Vorwald had no recognizable

property interest in employment, the brief never

explains on what basis the district “maintains” this

position. The brief discusses only the effect of worker's

compensation on Vorwald's claim.”

"I quote below in full those parts of the school district's brief

in the court of appeals that refer to the recognizable property

interest issue.

The school district's brief (p. 3) in the court of appeals states

The determination of whether the Appellant {Vorwald] has a prop

A-14

FFICTAL WISCONSIN REPORTS

oOupreme Court

The school district's brief in this court concedes

that the district presented only the worker's compensa-

tion issue to the court of appeals. The district describes

the issues it presented to the court of appeals as follows:

"The issues on appeal [before the court of appeals} were

erty interest deserving a constitutional due process protection is

pnmaniy dependent on the recognition of such an interest under

State law. [Citations omitted.] Therefore, a public employee must

have an enforceable expectation of continued employment under

State law to trigger the due process requirement of pre-determina

. )

tion notice and hearing. [Citations omitted

The school district's brief (p. 5) in the court of appeals

| pI

continues:

Respondents [school district) maintain that Appellant [Vorwald/

has no recognizable property interest in e mployment under Wiscon

sin’s laws, and that even if he did, the availability of a Worker's

Compensation Hearing provides adequate due process (Empha

sis added.)

The schoo! district's brief (pp. 5-9) in the court of appeals

concludes its Worker's Compensation Act analysis as follows

In this case, Curtis Vorwald claims he was denied notice and an

opportunity for a hearing regarding his employment termination:

there is no dispute that the termination arose under the Worker's

Compensation Act. The Respondents [the school districts} are not

claiming that the Worker's Compensation Act, or any other State

legislation, can preclude substantive Federal! constitutional claims

What the Respondents are saying ts that the facts of this case are

based upon a property interest in e mployment, that such a@ property

interest is determined by reference to interest created and enforcea

ble under state law, and that there us no interest that :s enforceable

under State law in this case because of the operation of the Worker's

Compensation Act. Appellant's claim for deprivation of due process

based on property interest in employment must fail where the

Worker's Compensation Act is applicable and provides the exclusive

remedy for the Appellant's claim of nght. (Emphasis added.)

The remainder of the school district's brief discusses the

Worker's Compensation Act and the necessity of exhausting

administrative remedies

A-15

aaa aaa aaa ae

OFFICIAL WISCONSIN REPORTS

the operation of the exclusivity provision of the

Worker's Compensation Act; the exhaustion require-

ment; and post deprivation due process.” School Dis-

trict's Supreme Court Brief at 2-3.

Supreme Court. If a petitioner wants to have the

supreme court address an issue upon the court's granting

the petition for review, the petitioner must set forth the

issue in the petition for review. Section (Rule) 809.62(6),

Stats. 1989-90, provides that "if the petition is granted,

the petitioner cannot raise or argue issues not set forth

in the petition unless ordered otherwise by the supreme

court. :

In its petition for review (p. 2), the school district

stated the issue as follows: "When determining the exis-

tence of a constitutionally protected interest in employ-

ment, does the applicability of a State Worker's Com-

pensation Act to the issues of the case preclude the

existence of an enforceable entitlement to employ-

ment?" The school district's petition for review, like the

presentation in the circuit court and the court of

appeals, limited the discussion of Vorwald's recognizable

property interest to the issue of whether the Worker's

Compensation Act deprives the employee of a property

interest.

Despite the deficiency in the petition for review, |

believe this court should exercise its discretion to reach

the issue of Vorwald's recognizable property interest.

The parties’ briefs in this court touch on the issue.® If

the parties believe the court has failed to consider the

recognizable property interest fully, the remedy is a

motion for reconsideration.

®See Waushara County v. Graf, 166 Wis. 2d 442, 462, 480

N.W.2d 16 (1992)

A-16

)FFICIAL WISCONSIN REPORTS

Vorwald v. River Falls School Dist. 160 Wis. 2d 5

Curtis R. VORWALD, Plaintiff-Appellant,

Vv.

SCHOOL DISTRICT OF RIVER FALLS, River Falls

Board of Education, and Charles R. Brenden. Super-

intendent of Schools, Defendants-Respondents.t

Court of Appeals

Vo. 90-1908-FT. Submitted on briefs December

1990.—Decided January 29, 199]

(Also reported in 466 N.W.2d 683.)

APPEAL from a judgment of the circuit court for

Pierce county: ROBERT W. WING, Judge. Reversed

and cause remanded with directions.

On behalf of the plaintiff-appellant the cause was

submitted on the briefs of Edward F. Vlack of Davison

& Viack of River Falls.

A-18

OFFICIAL WISCONSIN REPORTS

Court of Appea!s

On behalf of the defendants-respondents the cause

was submitted on the brief of Cassandra B. Westgate of

Terwilliger, Wakeen, Piehler & Ce*way, S.C. of

Wausau.

Before Cane, P.J., LaRocque and Myse, JJ.

MYSE, J. Curtis Vorwald appeals a judgment dis-

missing his 42 U.S.C. sec. 1983 claim against his former

employer for terminating Vorwald's employment with-

out adequate notice and a fair hearing in violation of his

procedural due process rights.! The court dismissed

Vorwald's sec. 1983 claim because it concluded that Wis-

consin's Worker's Compensation Law provided the

exclusive remedy for Vorwald. Because the exclusivity of

the Worker's Compensation Law does not bar a sec.

1983 claim when the state terminates an employee with-

out adequate notice and an opportunity to respond, we

reverse.

The school district of River Falls, Wisconsin,

employed Vorwald as a custodian for almost eighteen

years. In August 1987, Vorwald suffered a job-related

injury. Vorwald returned to work with restrictions

placed upon him by his physicians. In September 19838,

the board of education elected to terminate Vorwald's

employment based upon the recommendation of the per-

sonnel committee. Vorwald previously filed a worker's

compensation claim for his work-related injury, and the

parties agreed to payment for the injury. The agreement

reserved Vorwald's right to bring a claim based upon the

employer's wrongful refusal to rehire under sec.

102.18(4)(a), Stats.

Vorwald, however, filed a sec. 1983 claim alleging

that the board terminated him without adequate notice

and without due process. The circuit court concluded

'This is an expedited appeal under Rule 809.17.

A-19

OFFICIAL WISCONSIN REPORTS

Vorwald v. River Falls Schoo! Dist. 160 Wis. 2d 536

that an exclusive state remedy existed for resolution of

Vorwald's claim and granted summary judgment dis-

missing his claim.

[1-3]

A trial court's decision to grant or deny summary

judgment will not be reversed on appeal unless the trial

court abuses its discretion. Jones v. Sears Roebuck &

Co., 80 Wis. 2d 321, 325, 259 N.W.2d 70, 71 (1977). A

decision based on a mistaken view of the law constitutes

an abuse of discretion. Schmid vu. Olsen, 111 Wis. 2d 228,

237, 330 N.W.2d 547, 552 (1983). Because Vorwald was

entitled to notice and a meaningful opportunity to

respond before he was térmirated, and because post-

termination state remedies would not cure any alleged

violation of this right, the trial court erred by concluding

that the Worker's Compensation Act provided the exclu-

sive remedy.

[4-9]

We begin our analysis with a brief review of relevant

sec. 1983 law. Three types of sec. 1983 claims may be

brought under the due process clause of the fourteenth

amendment. First, a plaintiff may bring a claim for vio-

lations of specific rights protected by the Bill of Rights

and incorporated by the due process clause. Zinermon v.

Burch, 110 S. Ct. 975, 983 (1990). Second, the due pro-

cess clause itself has a substantive component that bars

arbitrary government action. Jd. Any violation actiona-

ble as one of these two types of sec. 1983 claims is com-

plete when the violation occurs. Zinermon, 110 S. Ct. at

983. Accordingly, state law remedies do not preclude a

plaintiff from bringing a sec. 1983 action based on such

violations. Zinermon, 110 S. Ct. at 983. Finally, a plain-

tiff may bring a sec. 1983 action for a violation of proce-

dural due process. In such cases, the alleged unconstitu-

tionality of the state action involves the deprivation of

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OFFICIAL WISCONSIN REPORTS

Court of Appeals

“life, liberty, or property” without due process of law.

The deprivation itself is not unconstitutional.

Zinermon, 110 S. Ct. at 983 (citing Parratt v. Taylor,

451 U.S. 527, 537 (1981)).

[10]

Unlike the first two types of sec. 1983 due process

claims, the availability of state remedies may be relevant

to procedural due process actions. Referring to such

actions, the Zinermon court stated, "(t]he constitutional

violation actionable under sec. 1983 is not complete

when the deprivation occurs: it is not complete unless

and until the State fails to provide due process."

Zinermon, 110 S. Ct. at 983. In determining whether a

procedural due process violation actionable under sec.

1983 has occurred, we must ‘ask whether the process

provided by the state was constitutionally adequate.

Zinermon, 110 S. Ct. at 983.

In Parratt, the court held that post-deprivation

state law remedies precluded the plaintiffs sec. 1983

claim. In that case, a prisoner brought a sec. 1983 action

after prison employees negligently lost materials he had

mail-ordered.2 The court reasoned that no predepriva-

tion procedural safeguard could address the risk of this

type of deprivation. Parratt, 451 U.S. at 543. When a

random and unauthorized act causes the deprivation and

the state cannot precisely predict when the deprivation

will occur, the state is unable to provide a meaningful

hearing prior to the deprivation. Jd. However, where the

state can provide a meaningful predeprivation hearing, it

must generally do so regardless of the adequacy of a post-

deprivation state law remedy. Zinermon, 110 S. Ct. at

987.

2State officials’ negligent acts no longer give rise to sec. 1983

lability. Daniels v. Williams, 474 US. 327, 336 (1986) (overruling

that part of the Parratt decision).

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OFFICIAL WISCONSIN REPORTS

Vorwald v. River Falls School Dist. 160 Wis. 2d 536

{11}

Vorwald claims the school board violated his proce-

dural due process rights by terminating his employment

without notice and a hearing. If Vorwald has a property

right in his employment, the state cannot deprive him of

this right without due process.? Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985). At a minimum,

due process requires that the state provide notice and an

opportunity to respond prior to termination. Jd. at 546.

Thus, by alleging that he had a property interest in his

employment and that the school board deprived him of

this interest without adequate notice and opportunity to

respond, Vorwald alleged a violation of his procedural

due process rights sufficient to maintain a sec. 1983

action. Because the state could provide notice and a

meaningful opportunity to respond prior to Vorwald's

termination, the existence of post-termination state law

remedies is not a defense to Vorwald's sec. 1983 claim.

Our analysis is consistent with that of the Seventh

Circuit Court of Appeals in Schultz v. Baumegart, 738

F.2d 231 (1984). That case involved a discharged Wis-

consin fire fighter who brought a sec. 1983 action claim-

ing he was discharged in violation of due process. The

court held that the discharged employee must first estab-

lish his property interest in continued employment. Jd.

at 234. The employee must then demonstrate that the

employer discharged him in violation of due process pro-

tections. /d. at 235. At a minimum, these protections

include notice and "a meaningful opportunity to respond

>The school district maintains that Vorwald has no recogniz-

able property interest in his employment. Because this issue is

neither argued nor briefed, we decline to address it. See In re

Baikus, 128 Wis. 2d 246, 255 n.d, 381 N.W.2d 593, 598 n.5 (Ct.

App. 1985).

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OFFICIAL WISCONSIN REPORTS

Court of Appeals

prior to termination." /d. (Citations omitted.) The court

then stated:

For purposes of remand, we note that if Schultz was

indeed fired in violation of his due process rights, the

availability of post-deprivation grievance procedures

or a board hearing would not have cured the viola-

tion. Schultz was entitled to notice and a meaningful

opportunity to respond before he was terminated. If

he was terminated without those protections, the

constitutional deprivation was then complete. Sch-

ultz need not have exhausted other state remedies

before bringing his section 1983 claim.

Id. at 237. (Emphasis in original.)

The school district argues that a refusal to rehire

hearing under sec. 102.35(3) of the Worker's Compensa-

tion Act is an exclusive remedy that provides adequate

post-deprivation procedural due process. If Vorwald was

terminated without due process, however, the availabil-

ity of post-deprivation remedies would not cure the vio-

lation because post-deprivation remedies do not address

the due process violation. The worker's compensation

remedy addresses the wrongful failure to rehire, not the

failure to grant the employee due process. Moreover, the

exclusivity provision in a state worker's compensation

act cannot preclude recovery on a valid sec. 1983 claim

because the federal remedy provided by sec. 1983 super-

sedes conflicting state law. Rosa v. Cantrell, 705 F.2d

1208, 1220 (1982). Wisconsin cannot abolish federally-

granted sec. 1983 claims by creating an exclusive remedy

in its worker's compensation statute.

[12]

The district also contends that a predeprivation

hearing on the issue of termination is neither feasible

nor practical where the termination is based on work-

place injury. We disagree. The fact that termination is

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OFFICIAL WISCONSIN REPORTS

Vorwald v. River Falls Schoc! Dist. 160 Wis. 2d 536

based on workplace injury does not bear on the feasibil-

ity of providing pretermination notice and an opportu-

nity to respond. In Schultz, the discharged employee was

on paid sick leave prior to termination. That court noted

that the case involved a "garden variety” dismissal, and

the city easily could have provided predeprivation proce-

dural protections. The same is true in the instant case.

The district argues that the failure to follow the due

process procedure was random and unauthorized, and,

thus, the Parratt rule applies. The district essentially

argues that because any violation of an employee's due

process right to pretermination notice and a meaningful

opportunity to respond is by definition random, unau-

thorized and hard to predict, the employee cannot bring

a sec. 1983 action if adequate state law post-deprivation

remedies are available. Such a holding would render sec.

1983 rights meaningless and would be directly contrary

to the holdings of Zinermon and Loudermill. These

cases hold that the ability to offer due process and not

the random nature of the state's conduct is determina-

tive of this issue.

Finally, the district argues that even if worker's

compensation does not provide the exclusive remedy,

Vorwald must exhaust available administrative remedies

before bringing a sec. 1983 action. In Kramer v. Horton,

i128 Wis. 2d 404, 419, 383 N.W.2d 54, 60 (1986), the

Wisconsin Supreme Court held that a reassigned Uni-

versity of Wisconsin tenured professor had to exhaust

administrative remedies before bringing a sec. 1983

claim in state court. The court reasoned that the exhaus-

tion doctrine provided agencies with the opportunity to

correct their own mistakes, promoted judicial efficiency

and developed a more complete factual record. Jd. at 418,

383 N.W.2d at 59-60.

OFFICIAL WISCONSIN REPORTS

Court of Appeals

Kramer appears to be in conflict with Felder v.

Casey, 108 S. Ct. 2302 (1988), which held that Wisconsin

State courts could not impose Wisconsin's notice of

claim statutes on sec. 1983 actions. However, we need

not reach that issue because in the present case Vorwald

had no administrative remedy. The school district pro-

vided no review of the board's actions. Uniike the plain-

tiff in Kramer, who could have sought review by the

university's executive committee, chancellor and _ ulti-

mately the board of regents, Vorwald had no administra-

tive tribunal from which to seek further review.

The worker's compensation hearing examiner may

review an employer's refusal to rehire an Injured

employee and may award that employee up to one year's

lost wages. Section 102.35(3), Stats. However, the

worker's compensation forum is not competent to review

Vorwald's claimed denial of a dué process hearing. Also,

as noted by the Kramer court, a key policy behind the

exhaustion doctrine is providing the agency an opportu-

nity to correct its own mistake. Unlike the university

system in Kramer, worker's compensation does not pro-

vide the next level of review of a school district's termi-

nation decisions. Rather, a worker's compensation

wrongful refusal to rehire takes the place of a claim for

tortious refusal to rehire. See Cornejo Polycon Indus.,

109 Wis. 2d 649, 327 N.W.2d 183 (Ct. App. 1982).

On remand the trial court must try Vorwald's claim

that he was denied procedural due process because he did

not receive notice and a due process hearing prior to

termination. The substantive due process claim of

wrongful termination is not before us and. thus. we do

not address it.

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School District of River Falls Personne! Policy

Personnel 4210

Dismissal of Non-Certified and Support Staff Personnel

It shall be the policy of the Board of Education of

the River Falls School District to strive to assist personnel

in every way possible to adjust to their positions and to

perform their duties satisfactorily. Every reasonable effort

shall be made to avoid the necessity of dismissing

personnel.

The Board may dismiss any non-certified employee

upon recommendation by the superintendent. The

superintendent shall specify the grounds for the dismissal

in a written statement, which shall be filed with the Board.

Any non-certified employee may be dismissed for those

causes which are specified in administrative Procedure No.

4210.a, although the causes set forth in that procedure are

not intended to be exclusive.

Upon receipt of the superintendent’s

recommendation relating to the dismissal of any non-

certified employee, the Board shall provide the employee

with written notification of the proposed dismissal, along

with a statement of the grounds for the proposed

dismissal. Such notification shall also advise the employee

of his or her right to a hearing on the question of the

proposed dismissal. No non-certified employee may be

dismissed except by a majority vote of those Board

members present when such a vote is taken.

On or before June 30 of the academic year during

which a non-certified employee is employed by the River

Falls School District, the Board shall give such an

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employee written notice of the refusal to renew that

individual’s employment tor the ensuing year. This notice

shall also advise the employee of his or her right to a

hearing on the issue of re-employment. In the event such

a hearing is held as a result of the employee's request, the

Board shall render its decision on the issue of that

employee’s re-employment within fifteen (15) days after

such hearing.

The Board has the right to suspend a non-certified

employee from duty against whom formal charges have

been filed until a decision is rendered. The employee's

salary shall continue during such suspension.

Adopted: 5/17/76

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