Christensen v. Sullivan

Decision Date29 January 2008
Docket NumberNo. 2006AP803.,2006AP803.
Citation2008 WI App 18,746 N.W.2d 553
PartiesMilton J. CHRISTENSEN, Alisa Jamieson, Erika Henderson, William Noggle, Troy Briggs, and all others similarly situated, Plaintiffs-Appellants, v. Michael J. SULLIVAN, Robert Kliesmet and Lev Baldwin, Defendants, Milwaukee County, David A. Clarke, Jr., Milwaukee County Sheriff, Defendants-Respondents.<SMALL><SUP>&#x2020;</SUP></SMALL>
CourtWisconsin Court of Appeals

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Patrick O. Patterson of the Law Office of Patrick O. Patterson, S.C., of Milwaukee, Peter M. Koneazny of the Legal Aid Society of Milwaukee, Inc. of Milwaukee and Laurence Dupuis of the American Civil Liberties Union of Wisconsin Foundation, Inc. of Fox Point.

On behalf of the defendants-respondents, the cause was submitted on the brief of Charles H. Bohl, Nathan A. Fishbach and Andrew A. Jones of Whyte Hirschboeck Dudek S.C. of Milwaukee and John E. Schapekahm of Office of the Corporation Counsel Milwaukee County Courthouse of Milwaukee.



When the trial court concluded that sanctions or compensation for continuing contempt were not available because Milwaukee County (County) had ceased violating the Consent Decree on which the trial court based its finding of contempt, it did not have the benefit of our supreme court's holdings in Frisch v. Henrichs, 2007 WI 102, 304 Wis.2d 1, 736 N.W.2d 85, decided in July 2007, while this appeal was pending. We conclude that the remedy of sanctions under WIS. STAT. § 785.04 for continuing contempt, as described in Frisch, is applicable to the contempt found by the trial court here. We reverse and remand for determination of the amount of the sanction.


¶ 2 In March 1996, Milton Christensen, who was then confined in the Milwaukee County Jail, filed a pro se, handwritten petition for a writ of prohibition seeking relief from what he described as dangerous conditions within the jail. Shortly thereafter, the Legal Aid Society of Milwaukee, Inc.1 began representing Christensen, and in July 1996, filed a class action complaint2 on behalf of "all persons who are now or in the future will be confined in the Milwaukee County Jail," alleging constitutional violations by the defendants based upon the conditions maintained in the jail. In the proceedings giving rise to this appeal, the trial court summarized the lengthy complaint as alleging "that the conditions at the Milwaukee County Jail were substandard, lead to the infliction of needless pain and suffering, and created a threat to the inmates' mental and physical well-being. These conditions were presumably caused by [] serious overcrowding problems at the Jail."

¶ 3 Ultimately, the parties resolved their differences and in March 2001, entered into a forty-eight page settlement agreement (referred to by the parties and the trial court as a Consent Decree), which was approved by the trial court in May 2001, and became an order of the court.3 Problems with the jail conditions did not end, and by late 2003, plaintiffs requested, and the trial court authorized over opposition by the County, investigation and discovery on the question of defendants' compliance with the Consent Decree.

¶ 4 In the fall of 2004, plaintiffs moved for enforcement of the Consent Decree, alleging numerous and persistent violations thereof by defendants. Plaintiffs sought a finding of contempt and damages for breach of contract, i.e., the terms of the Consent Decree. In the trial court's decision and order resolving that motion, the trial court4 provided an excellent summary of the portions of the Consent Decree relevant to these proceedings, and the factual positions of the parties related thereto, which we adopt and set forth in substantial part herein with emphasis as supplied by the trial court:

The Consent Decree is divided into two parts. One part deals with inmate overcrowding and the other deals with the medical services provided to inmates. The provision of the Consent Decree at issue in the present motion before this Court involves inmates' length of stay in the booking/open waiting area of the jail. The relevant portion of the Consent Decree provides as follows:

C. As of 3/21/01, and thereafter, no jail inmate shall be required to sleep on a mattress on the jail floor or on the jail floor. There shall be no inmate in the jail for longer than thirty hours without being assigned to a bed approved by regulations of the Wisconsin Department of Corrections for overnight housing. (See Paragraph D, next following).

D. Best efforts shall be made to assure that there will be no more than 110 inmates in booking area at the midnight count. If the number exceeds 110, there shall be a plan for adequate emergency staffing in the booking room. The plan shall limit the number of inmates in the locked rooms surrounding the open waiting area in the booking room and shall specify how often those side rooms are checked. The maximum permanent population limit for the jail shall be 1100 at the midnight, "11:59," count (according to the so-called "Daily Census Reports"). The 1100 permanent capacity limit of the jail assumes that there will be a reasonable number of persons held on a short-term basis in the booking area. Since there are no beds in the booking room, a number of inmates may be placed there for not more than thirty hours. County defendants will exercise best efforts to limit any inmate's stay in booking-open waiting to twenty-four hours.

(Consent Decree, Section II, Paragraphs C and D, emphasis added.)

¶ 5 As to the material facts, the trial court reported substantial agreement between the parties, noting: "Plaintiffs maintain that this `thirty-hour' requirement was violated on 16,662 occasions from November of 2001 through April of 2004. The County does not dispute that there were, in fact, approximately 16,000 such violations." Relying on WIS. STAT. §§ 785.01 and 785.02 (2005-06),5 and Shepard v. Circuit Court for Outagamie County, 189 Wis.2d 279, 287, 525 N.W.2d 764 (Ct.App. 1994), the trial court found 16,662 violations between November 2001 and May 2004. The trial court made additional findings that:

[T]he actions of Milwaukee County officials were intentional. The sheer number of violations, 16,662 is staggering. These violations spanned a relatively long period of time, from approximately November of 2001 (only months after the Consent Decree was approved by Judge Donegan) until May of 2004. Although Milwaukee County contends that it was unaware of the extent of the problem, it is beyond this Court's comprehension how over 16,000 violations of the Consent Decree could go undetected.

Milwaukee County officials had the capability to track how long inmates were being held in the booking/open waiting area.... Inmates who were held in booking for longer than seventy-two (72) hours were given showers and new clothes.... [T]he existence of the shower list also demonstrates ... that the County actually knew that the Consent Decree was being violated.

Milwaukee County was put on notice of problems in the booking area in December of 2002 and January of 2003 when the County Board Judiciary Committee was forced to respond to complaints from Sheriff's Deputies that overcrowding in the booking area was creating unsafe working conditions.... Among the conditions described by some of the Plaintiffs (and not directly contradicted by the Affidavits submitted by Milwaukee County) include: overly crowded conditions, inmates who were forced to sit or sleep on the floor next to urinals, inmates who had to sit-up for hours and hours, lack of hygiene, unsanitary conditions, inmates who were not given pillows or blankets to sleep on, cells that were infested with bugs, cold temperatures, bodily fluids on the floor and bad odors.... [B]etween November of 2001 and April of 2004, 4811 inmates were kept in this environment for longer than two days, and 719 inmates were held there for more than three (3) days. Some of these inmates were held in booking in excess of 100 hours....

It is quite telling that the thirty-hour violations ceased immediately after the Plaintiffs filed this motion to enforce its [sic] rights under the Consent Decree. The speed at which Milwaukee County was able to remedy the problem and improve the conditions in the booking area demonstrates that had the County made a serious effort to comply with the thirty-hour requirement, it could have prevented the violations.

¶ 6 On January 4, 2006, although the trial court specifically found that "Milwaukee County's actions were intentional and constitute Contempt of Court" the trial court concluded that "the remedial sanctions that the Plaintiff Class seeks, based upon a plain reading of the applicable statutes, is not available." The trial court concluded that remedial sanctions were only available to terminate a continuing contempt, and since the parties agreed that the violations of the thirty-hour rule ended in May 2004, the trial court concluded that there was no continuing contempt. In addition, the trial court, analyzing the Consent Decree as a contract, found that Milwaukee County had breached the Consent Decree, but that damages based on that breach were not available because: the 2001 complaint (which ultimately resulted in the Consent Decree) did not request money damages; prior to the trial court approving the Consent Decree, plaintiffs' counsel stated repeatedly that the relief sought applied to conditions for the inmates, not to money damages; and the language of the Consent Decree does not "indicate that either party contemplated that monetary damages would be available in the event of a breach." Plaintiffs appealed.

Standard of review

¶ 7 Interpretation of WIS. STAT. ch. 785 is a question of law that we review de novo. Rosario v. Acuity & Oliver Adjustment Co., 2007 WI App 194, ¶ 8, ___...

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3 cases
  • Christensen v. Sullivan
    • United States
    • Wisconsin Supreme Court
    • July 21, 2009
    ...Colored People. ¶ 1 DAVID T. PROSSER, J. ¶ 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, denyi......
  • In re Finding of Contempt Marriage of Rierson, No. 2007AP2720 (Wis. App. 9/25/2008)
    • United States
    • Wisconsin Court of Appeals
    • September 25, 2008
    ...sanctions under the facts in question requires the interpretation of a statute, which is a question of law reviewed de novo. Christensen v. Sullivan, 2008 WI App 18, ¶7, 307 Wis. 2d 754, 746 N.W.2d 553. ¶15 Under WIS. STAT. ch. 785, the imposition of a remedial sanction for contempt is not ......
  • In re Marriage of Hong v. Hong, No. 2007AP2797 (Wis. App. 12/30/2008)
    • United States
    • Wisconsin Court of Appeals
    • December 30, 2008 to fulfill the proposed purge, and the condition should be reasonably related to the cause or nature of the contempt." Christensen v. Sullivan, 2008 WI App 18, ¶17, 307 Wis. 2d 754, 746 N.W.2d 553 (citation ¶ 18 As we have already explained above, the court's findings that Hong had the......

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