Barnhill v. Board of Regents of UW System

• Decision Date: 29 October 1991
• Docket Number: No. 89-0372,UW-E,89-0372
• Citation: 166 Wis.2d 395,479 N.W.2d 917
• Parties: , 72 Ed. Law Rep. 623 Glenn B. BARNHILL, Plaintiff-Respondent-Cross Petitioner, d v. BOARD OF REGENTS OF THE UW SYSTEM Harry P. Sharp, Director, Wisconsin Survey Research Laboratory,xtension, Robert Lee, Field Director, Wisconsin Survey Research Laboratory, xtension, Defendants-Appellants-Petitioners. . Oral Argument
• Court: Wisconsin Supreme Court

Page 917

479 N.W.2d 917

166 Wis.2d 395, 72 Ed. Law Rep. 623

Glenn B. BARNHILL, Plaintiff-Respondent-Cross Petitioner,^d v. BOARD OF REGENTS OF THE UW SYSTEM Harry P. Sharp, Director Wisconsin Survey Research Laboratory, UW-Extension, Robert Lee, Field Director, Wisconsin Survey Research Laboratory UW-Extension, Defendants-Appellants-Petitioners.

No. 89-0372.

Supreme Court of Wisconsin.

Oral Argument Oct. 29, 1991.

Opinion Filed Feb. 12, 1992.

For the defendants-appellants-petitioners the cause was argued by Robert D. Repasky, Asst. Atty. Gen., with whom on the briefs was James E. Doyle, Atty. Gen.

For the plaintiff-respondent-cross petitioner there were briefs by Jacqueline Macaulay and Borns, Macaulay & Jacobson, Madison and oral argument by Jacqueline Macaulay.

CALLOW, Justice.

This is a review under sec. (Rule) 809.62, Stats., of a published decision of the court of appeals, Barnhill v. Board of Regents, 158 Wis.2d 278, 462 N.W.2d 249 (Ct.App.1990). The court of appeals affirmed a decision of the Dane county circuit court, Judge Susan R. Steingass, and held that defendants Sharp and Lee violated Barnhill's First Amendment right of free speech when they terminated Barnhill's employment in retaliation for leaking confidential survey questions to a newspaper during the taking of the survey. However, the court of appeals remanded the case to the circuit court for a new trial on the issue of whether punitive damages were allowable.

Three issues are raised in this review. The first issue concerns whether defendants Sharp and Lee are entitled to qualified immunity as public officials. We hold that Sharp and Lee are entitled to qualified immunity. The case law in 1985 did not clearly establish that Barnhill's interest in disclosing the survey questions outweighed Wisconsin Survey Research Laboratory's (WSRL) confidentiality interest such that a reasonable public official would believe Barnhill's discharge to be an unlawful act.

The second issue is whether Sharp and Lee violated Barnhill's First Amendment ¹ right of free speech when they terminated his employment for disclosing confidential survey questions to a newspaper before the survey was complete. We hold that Sharp and Lee did not violate Barnhill's First Amendment rights when they terminated his employment. WSRL's needs for confidentiality and discipline clearly outweigh Barnhill's interest in disclosing the substance of the survey during the course of the survey.

The third issue concerns the appropriateness of the jury instruction regarding punitive damages. Because of our previous holdings, we do not reach the merits of this issue.

The relevant facts follow and are not in dispute. WSRL is a sub-unit of the University of Wisconsin Extension. The mission of the WSRL is to conduct surveys and field research for the University and non-profit organizations. It generally avoids commercial market research but does research on customer preferences for trade associations and other non-profit organizations. Similar to most privately-owned businesses, the WSRL is funded entirely from fees received from clients requesting survey research.

WSRL has an excellent reputation in the survey industry. The validity of survey research depends upon the confidentiality of the survey questions during the period that the survey is being conducted. A reputation for disclosing the text of survey questions before the survey is completed can seriously harm the reputation and business of a survey research organization.

Harry Sharp is a faculty member of the University of Wisconsin-Madison and has been the director of WSRL since its formation twenty-five years ago. He is primarily responsible for developing the questionnaires used in WSRL research. Robert Lee was the field director for WSRL. His duties included supervision of the interviewers and all of the activities involved in the actual taking or fielding of surveys.

WSRL employs part-time interviewers to conduct its surveys. The interviewers are required to sign and abide by a pledge of confidentiality which provides in relevant part:

... I will maintain professional ethical standards of confidentiality while performing my duties. This means all information obtained during the course of conducting this research will be held in strict confidence.

Glenn Barnhill was employed by WSRL as a part-time interviewer beginning January 30, 1984. He had no prior experience in survey research. Barnhill signed the pledge of confidentiality described above.

In the fall of 1984, the International Council of Shopping Centers (ICSC), a trade association, contracted with WSRL for a survey of shoppers' attitudes toward group activities and demonstrations in shopping centers. Barnhill attended a pre-test briefing regarding the survey. However, Barnhill left the meeting shortly after it began and expressed his displeasure to the meeting leader that WSRL was conducting a survey on the topic. At the time of the survey, litigation concerning the free speech rights of individuals and groups in shopping malls was pending in Dane county circuit court. See Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832 (1987). ² The meeting leader told Barnhill that he did not have to participate in the survey and he did not further participate.

On November 27, 1984, Barnhill wrote a letter to Lee explaining his belief that it was inappropriate for WSRL to perform the shopping center survey. In this letter, Barnhill stated:

The question at issue in this study is free speech. This is a right guaranteed in the First Amendment....

The issue is a legal question and will appropriately be decided by the courts. The university should not be lending its name and reputation to one party in this dispute.... Clearly a bias has been introduced by our client that may be used in a partisan way that may not be in the public interest.

Lee shared the letter with Sharp, but neither of them responded to it.

On January 23, 1985, Lee received a phone call from a reporter for The Capital Times, a Madison newspaper. The reporter informed Lee that the newspaper possessed the text of the shopping center survey questions. However, The Capital Times did not publish the survey questions at that time. The reporter refused to reveal his source. On that same day, Lee issued a memorandum to WSRL field staff which stated that making interview questions available outside the lab before a project was completed was a violation of the pledge of confidentiality and could seriously damage present and future clients' faith in WSRL's ability to conduct research in a generally accepted professional manner.

Early in the week of January 21, 1985, Barnhill spoke with a Milwaukee Journal reporter and allowed her to examine the survey questions. On January 27, 1985, an article appeared in the Milwaukee Journal paraphrasing some of the questions and quoting both Barnhill and Sharp. This article appeared during the time the survey was in progress.

Sharp ordered the survey interviews stopped after he learned about the Milwaukee Journal article. The survey concluded with 956 useable interviews at a final cost of $11,106.84. WSRL and the ICSC had contracted for 1,000 interviews at an estimated cost of $14,025.00. Sharp testified that the 956 interviews constituted a sufficient sample and that steps would be taken to ensure the integrity of the survey.

On February 7, 1985, the Daily Cardinal, a University of Wisconsin-Madison student newspaper, published an article which quoted the survey questions and Barnhill's interpretation of certain questions. Lee issued a second memorandum, dated February 11, 1985, reiterating the sentiments expressed in the previous memorandum.

Sometime after the Milwaukee Journal article was published, Sharp and Lee consulted a University attorney about Barnhill's disclosure of the survey questions to the newspaper and what options were available to WSRL as Barnhill's employer. Barnhill performed no work for WSRL after December 16, 1984, and was subsequently discharged from employment with WSRL.

Barnhill sued Sharp, Lee, and the Board of Regents of the University of Wisconsin System under 42 U.S.C. sec. 1983. ³ The jury found that Barnhill was fired sometime before March 26, 1985, and that retaliation for the exercise of his First Amendment rights was a primary factor in his discharge. The circuit court dismissed all claims against the Board of Regents because of absolute immunity. However, the trial court determined that Sharp and Lee were not entitled to qualified immunity. Judgment was subsequently entered against Sharp and Lee in the amount of $27,200.00 for compensatory damages, $25,000.00 for punitive damages, and $30,465.87 for attorneys fees.

A majority of the court of appeals (Sundby, J., dissenting) affirmed the decision of the circuit court that Sharp and Lee were not entitled to qualified immunity and that they violated Barnhill's first amendment right of freedom of speech. The court of appeals, however, remanded the case to the circuit court for a new trial on the allowability of punitive damages. All three issues are before this court for review.

I. QUALIFIED IMMUNITY

The issue of qualified immunity is a question of law that is to be decided by the court, not the jury. Rakovich v. Wade, 850 F.2d 1180, 1201 (7th Cir.1988). This court decides questions of law independently and without deference to the reasoning of the lower courts. Pulsfus Poultry Farms v. Town of Leeds, 149 Wis.2d 797, 803-04, 440 N.W.2d 329 (1989).

Qualified immunity is intended to protect public officials from harassing litigation so that they "reasonably can anticipate when their conduct may give rise to liability for damages." Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984). More specifically, qualified immunity protects government officials performing discretionary functions from liability for civil damages insofar as their conduct does not...