Christensen v. Sullivan

Decision Date21 July 2009
Docket NumberNo. 2006AP803.,2006AP803.
Citation768 N.W.2d 798,2009 WI 87
PartiesMilton J. CHRISTENSEN, Alisa Jamieson, Erika Henderson, William Noggle and Troy Briggs and all others similarly situated, Plaintiffs-Appellants, v. Michael J. SULLIVAN, Robert Kliesmet and Lev Baldwin, Defendants, Milwaukee County and David A. Clarke, Jr., Milwaukee County Sheriff, Defendants-Respondents-Petitioners.
CourtWisconsin Supreme Court

For the defendants-respondents-petitioners there were briefs by William J. Domina, Milwaukee County Corporation Counsel, John E. Schapekahm, Principal Assistant Corporation Counsel, Milwaukee; and Charles H. Bohl, Nathan A. Fishbach, Andrew A. Jones, and Whyte Hirschboeck Dudek, S.C., Milwaukee, and oral argument by Andrew A. Jones.

An amicus curiae brief was filed by Lori M. Lubinsky, Timothy D. Edwards, and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Counties Association.

For the plaintiffs-appellants there was a brief by Peter M. Koneazny, litigation director for the Legal Aid Society of Milwaukee, Inc., Milwaukee; Patrick O. Patterson, Law Office of Patrick O. Patterson, S.C., Fox Point, Cooperating Counsel for Legal Aid Society of Milwaukee, Inc. and ACLU of Wisconsin Foundation, Inc.; and Laurence Dupuis, legal director, American Civil Liberties Union of Wisconsin Foundation, Inc., Milwaukee; and oral argument by Patrick O. Patterson.

An amicus curiae brief was filed by Pamela R. McGillivray, Carlos A. Pabellon, Madison, on behalf of Robert J. Martineau, Gordon G. Myse, David Schwartz, Vincent M. Nathan, and Pamela Susan Karlan.

An amicus curiae brief was filed by Grant F. Langley, City Attorney, Rudolph M. Konrad, Deputy City Attorney, and Stuart S. Mukamal, Assistant City Attorney, Milwaukee, on behalf of The City of Milwaukee.

An amicus curiae brief was filed by Daniel J. La Fave, Cheri L. Baden, and Quarles & Brady LLP, Milwaukee, on behalf of The Benedict Center, Disability Rights Wisconsin and the Milwaukee Branch of the National Association for the Advancement of Colored People.


¶ This is a review of a published decision of the court of appeals, Christensen v. Sullivan, 2008 WI App 18, 307 Wis.2d 754, 746 N.W.2d 553.

¶ 2 The decision reversed a 2006 order of the Milwaukee County Circuit Court, Clare L. Fiorenza, Judge, denying the plaintiffs' motion for monetary damages as a remedial sanction for the defendants' repeated violations of a Consent Decree involving the Milwaukee County Jail (the Jail). The Consent Decree was approved by the circuit court in 2001. Although the circuit court found that the defendants were in contempt of court, it declined to impose monetary damages as a remedial sanction or for breach of contract. When the court of appeals reversed, it remanded the case to the circuit court instructing it to determine the sum of money sufficient to compensate the inmates at the Jail who were held in violation of the Consent Decree.

¶ 3 The first issue presented in this class action is whether the circuit court was required to order monetary damages for certain members of the class who were inmates at the Jail between 2001 and 2004 as a remedial sanction against the defendants for their repeated violations of the Consent Decree, when there is no dispute that "the violations ha[d] ceased." The second issue is whether the aforementioned inmates are entitled to monetary damages for emotional distress based upon breach of contract, i.e., breach of the Consent Decree.

¶ 4 We conclude, based on the facts of this case, that the circuit court had no discretion to impose a remedial sanction against the defendants after their contempt of court had ceased. Remedial sanctions are "imposed for the purpose of terminating a continuing contempt of court." Wis. Stat. § 785.01(3) (2007-08)1 (emphasis added). Punitive sanctions may be "imposed to punish a past contempt of court." Wis. Stat. § 785.01(2) (emphasis added). Because breaches of the Consent Decree had ceased before the action for contempt was filed, the circuit court was correct in refusing to impose a remedial sanction against the defendants for their past contempt. For multiple reasons, we also conclude that the plaintiff class is not entitled to monetary damages for emotional distress for breaches of the Consent Decree. Consequently, we reverse the decision of the court of appeals.


¶ 5 The material facts related to this appeal are not in dispute. On March 12, 1996, Milton J. Christensen (Christensen), an inmate in the Jail, filed a handwritten, pro se writ of prohibition alleging constitutional violations stemming from substandard and dangerous conditions in the Jail. Among the specific conditions complained of were the following: dangerous overcrowding in the Jail; sharing of single-occupancy cells with other inmates; insufficient time outside the cell; and exposure to communicable diseases due to inadequate screening of new inmates. At the time of filing, Christensen had been held at the Jail as a pre-trial detainee for more than a year.

¶ 6 On May 8, 1996, the Milwaukee County Circuit Court, Michael Skwierawski, Judge, appointed the Legal Aid Society of Milwaukee, Inc. (Legal Aid) to represent Christensen. On July 25, 1996, with the assistance of counsel, Christensen amended his complaint in an effort to bring a class action "on behalf of all persons who are now or in the future will be confined in the Milwaukee County Jail." The amended complaint alleged constitutional violations at the Jail for substandard conditions.

¶ 7 The amended complaint alleged that the Jail's conditions caused the infliction of needless pain and suffering and created a threat to inmates' mental and physical well-being. The class sought relief "from conditions that fall below contemporary standards of human decency, deny basic human needs, inflict needless pain and suffering, and threaten plaintiffs' physical and mental well-being."

¶ 8 According to the amended complaint, when the Jail opened in 1993, it was designed to hold 798 inmates. This included 54 disciplinary and medical beds designated for temporary or special use. However, the average daily population in the Jail in 1995 was more than 1,200. Paragraph 27 of the amended complaint read as follows:

27. The Jail is seriously overcrowded. Although it is designed to hold a maximum of 798 inmates, the population on July 10, 1996 was 1304 inmates. Of these, 547 were in the Jail post-sentencing, arguably making them the responsibility of the State of Wisconsin. Specifically, there were 260 with parole or probation violations and other charges, 62 with only parole violations, 30 sentenced felons, 88 awaiting sentencing, 31 with division of intensive sanctions penalties, 7 state correctional center inmates, 44 awaiting transfer to the state, and 25 on orders to produce and return. On the other hand, there were 757 there who are the county's responsibility. Specifically, this includes 427 pretrial felony, 236 pretrial misdemeanor, 84 misdemeanor sentenced and 10 municipal commitments. If the population of the Jail were reduced by the number of inmates who are the State's responsibility, the Jail would not be overcrowded. The annual average daily population in the Jail was over 1200 in 1995; and the monthly average daily population in June, 1996 was 1222.

¶ 9 Paragraph 28 continued with the following:

28. As a result of the high population of inmates, two inmates are confined to cells built for one. The second inmate is routinely forced to sleep on a mattress on the floor because each cell is equipped with only one bed. Because the mattress on the floor is so close to the toilet, the toilet "sweats" and water spills or urine splashes from the toilet onto the floor and gets the mattresses and bedding wet. For most inmates, there are no pillows for persons sleeping on the floor and there is only one blanket even when it is cold in the Jail.

¶ 10 The amended complaint pointed to the special problem of women in the Jail. Women were serving misdemeanor sentences in the Jail, and women also were held in the Jail for violations of probation or parole because there were no alternative facilities, such as the House of Corrections. In addition, inmates lacked sufficient access to adequate mental health care, medical care, and dental care, and women specifically lacked equal access to educational and job-training opportunities.

¶ 11 Defendants included the Secretary of the Wisconsin Department of Corrections, the Milwaukee County Sheriff, and Milwaukee County (collectively referred to as "the County").

¶ 12 On October 15, 1996, the class was certified by the Milwaukee County Circuit Court, Jacqueline D. Schellinger, Judge. It included "all individuals who are now or in the future will be confined in the Milwaukee County Jail . . . and all such confined individuals who are now or in the future will be subject to the policies and practices of Defendants."

¶ 13 After several years of motions, discovery, and negotiation, the parties submitted a settlement agreement (the Consent Decree) to the court for approval. The circuit court, Thomas E. Donegan, Judge, held hearings and on May 29, 2001, approved the 48-page Consent Decree.

¶ 14 At the hearings on the Consent Decree, the parties made clear that the suit was about injunctive and declaratory relief, not damages. Plaintiffs' counsel stated the following: "[T]he relief applies to all inmates. There are no damages."

¶ 15 The Consent Decree addressed two broad issues: overcrowding and medical services provided to inmates. The overcrowding section set a cap on the total population of the Jail at 1,100, limited the number of inmates in the booking-open waiting area (the BKOW) to 110, and stipulated that no individual would remain in the BKOW longer than 30 hours. The "Medical Services" section included provisions to improve medical and mental health...

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