Bartley v. Thompson
| Decision Date | 30 November 1995 |
| Docket Number | No. 94-3123,94-3123 |
| Citation | 198 Wis.2d 323,542 N.W.2d 227 |
| Parties | Douglass H. BARTLEY, Plaintiff-Appellant, d v. Tommy G. THOMPSON, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
For the plaintiff-appellant the cause was submitted on the briefs of Gaar W. Steiner and Heidi J. Zeeb of Steiner & Schoenfeld of Milwaukee.
For the defendant-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Bruce A. Olsen, Assistant Attorney General, of Madison.
Before EICH, C.J., and SUNDBY and VERGERONT, JJ.
Douglass Bartley, a former member of the Wisconsin Tax Appeals Commission, sued Tommy G. Thompson, Governor of Wisconsin, when Thompson failed to nominate him to another term on the commission. He claimed that he had a "binding contract" for renomination, that the failure to renominate him violated his right to free speech, and that Thompson conspired with others to "obstruct" Bartley in the performance of his duties by threatening to deny him renomination after Bartley voted to allow a large income-tax refund claim brought by several thousand federal pensioners to proceed before the commission. We affirm the trial court's dismissal of his action.
Bartley's complaint alleges the following facts. 1 He was appointed to one of two part-time positions on the tax appeals commission in 1987. At that time, the commission was comprised of five members, three of whom served full-time and two part-time. As a part-time commissioner, Bartley was permitted to maintain a private law practice, which he did.
In 1991, the two part-time commissioner positions were eliminated by the legislature and one of the full-time commissioners resigned. Bartley applied for appointment to fill out the remaining year of the former commissioner's term. He met with the governor's then chief of staff, Edward Marion, informing Marion that he would give up his law practice and take the full-time position on the "promise" that he would be renominated for a full six-year term the following year. Several days later, Marion telephoned Bartley and told him that his condition was acceptable and that the governor "did not want him for just one year." According to Bartley, Marion told him his renomination was secure "as long as [he] didn't do anything unnatural with sheep." He alleges he relied on Marion's statement as a representation that his renomination was "secure."
A few days later, Bartley received a call from Thompson informing him that he was to be nominated to serve the one year remaining on the term of the former commissioner. According to Bartley, the governor asked him whether he was "happy" with that appointment, 2 and he responded in the affirmative.
Pending before the commission at the time was a case filed by several thousand retired federal employees living in Wisconsin who claimed the state had illegally assessed income taxes on their federal pensions over a period of several years. The case represented a potential liability for the state approaching $100 million, and Bartley authored the opinions announcing the commission's decisions that it had jurisdiction to hear the retirees' claim and that the retirees could proceed as a class.
After the decisions were announced, Marion telephoned Bartley indicating that the Wisconsin Department of Revenue was "very upset" with the results. Several weeks later, in November 1992, Bartley and another commissioner, representing a majority of the three-member agency, issued further rulings in the case adverse to the state and the department. Bartley alleges that he then received a call from the commission chair, Mark Musolf (who had recused himself from the case due to his prior involvement in the dispute as secretary of the Revenue Department), during which Musolf remarked: "How can you do this when your appointment is up?" and "You're making a laughingstock of the Commission."
Bartley's initial term as a full-time commissioner was due to expire on March 1, 1993. On February 23, he faxed a letter to the governor's "personnel director," Pat Reuter, inquiring about his salary for the full six-year term. On March 2, Reuter informed Bartley that the governor was "not amused" by his letter and that his renomination was "not secure." When Bartley told Reuter that he had been "promised" renomination, Reuter said she would contact the governor and get back to him.
Bartley then telephoned Marion, who had since resigned his position in the governor's office and was in private law practice. Unable to reach Marion, Bartley left a message that he wanted to "confirm ... the prior agreement." Marion returned the call a few days later stating that he would "remind" the governor of Bartley's concerns.
A few weeks later, on March 24, Reuter called to request that Bartley attend an "interview" on Monday, March 29, concerning his reappointment. Reuter stated that the governor's legal counsel, his appointments director, the state director of employment relations and the state treasurer were scheduled to be present at the meeting and that the purpose of the meeting was to discuss Bartley's "goals and objectives" as a member of the commission.
After initially agreeing to attend the meeting, Bartley changed his mind. He alleges he did so because he believed Reuter and the others wanted to talk to him about the pending pension case, and he felt the interview was just a ruse to justify a decision already made not to renominate him because of his rulings in the case. He faxed a letter to Reuter on the Friday before the scheduled Monday meeting stating:
[W]hen I was appointed to the interim one-year term ... I was promised an additional six-year term beginning this last March 1. Because I was given a seven-year contract, the matter of my reappointment is settled, and I see no good that can come from the Monday meeting, the subject of which is evaluating whether I should be given a job that has already been promised and filled.
Bartley asked Reuter to provide him with a written "confirmation of [his] reappointment," and said that once the confirmation was received, "I would then be very pleased to meet ... with you or anyone else on the nature of our work at the commission or any other appropriate matters."
The governor's new chief of staff, William McCoshen, responded to Bartley's fax with a letter confirming the Monday interview "for consideration of a six year appointment to the Tax Appeals Commission." The letter concluded by stating: "Should you choose not to follow the formal interview process we will assume you are not interested in being considered for the appointment and we will proceed accordingly." 3
Bartley did not attend the meeting and a few days later was advised by McCoshen that another applicant for the position, Joseph Mettner, was being nominated to the commission.
Finally, the complaint refers to newspaper articles quoting Marion as stating that while Bartley had "pressured very hard" for the appointment, he "was never promised anything." The articles also indicated that Thompson's reason for failing to renominate Bartley to the commission was his "refus[al] to go through the [appointment] process...."
Bartley seeks compensatory damages for the governor's breach of his "contract" to renominate Bartley to the commission "in the amount equivalent to six years' lost wages and fringe benefits ... plus reasonable additions ... and interest ... as well as litigation costs." He seeks damages in the same sum for the governor's alleged violation of his civil and constitutional rights, together with punitive damages, attorney's fees and costs. He appeals from the trial court's judgment dismissing his complaint for failure to state a claim on which relief may be granted.
A motion to dismiss a complaint for failure to state a claim upon which relief may be granted tests the legal sufficiency of the pleading. Evans v. Cameron, 121 Wis.2d 421, 426, 360 N.W.2d 25, 28 (1985). Because the question presented is one of law, we review the trial court's decision de novo. Williams v. Security Sav. & Loan Ass'n, 120 Wis.2d 480, 482, 355 N.W.2d 370, 372 (Ct.App.1984). And while we take the pleaded facts and all reasonable inferences from those facts as true, "legal conclusions and unreasonable inferences need not be accepted." Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660, 664 (1979). Because pleadings are to be liberally construed, "[a] complaint should be dismissed as legally insufficient only if it is quite clear that under no conditions can the plaintiff recover" based on the facts (and inferences) alleged. Williams, 120 Wis.2d at 482-83, 355 N.W.2d at 372 (footnote omitted). This is such a case.
The trial court ruled that Bartley's attempt to state a cause of action against the governor for breach of contract failed for lack of consideration. 4
Bartley claims that the fact that he gave up his part-time law practice to accept the initial one-year appointment constitutes adequate consideration for the governor's "promise" to renominate him to a full six-year term the following year. The trial court concluded that because state law flatly prohibits full-time commissioners from engaging in private employment, Bartley had not promised to do anything in exchange for the governor's alleged promise that he was not otherwise required to do under state law.
Bartley does not dispute the general rule that a promise to do something the promisor is already legally bound to do, or the performance of an existing legal obligation, does not constitute sufficient consideration for a contract. Holcomb v. United States, 622 F.2d 937, 941 (7th Cir.1980). 5 He argues, however, that the rule is inapplicable because he made his "deal" with the governor in December 1991, before accepting the interim...
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