Doe v. Ellis

• Decision Date: 17 July 1981
• Docket Number: No. 80-1772,80-1772
• Citation: 103 Wis.2d 581,309 N.W.2d 375
• Parties: John DOE, Plaintiff-Appellant, v. Michael ELLIS, Defendant-Respondent. *
• Court: Wisconsin Court of Appeals

Page 375

309 N.W.2d 375

103 Wis.2d 581

John DOE, Plaintiff-Appellant, v. Michael ELLIS, Defendant-Respondent. ^*

No. 80-1772.

Court of Appeals of Wisconsin.

Submitted on Briefs April 27, 1981.

Opinion Released July 17, 1981.

Opinion Filed July 17, 1981.

Cheryl Rosen Weston, Cullen & Weston and Conrad H. Johnson, Schlotthauer, Johnson, Mohs, MacDonald & Widder, Madison, submitted brief for plaintiff-appellant.

Bronson C. La Follette, Atty. Gen., and Charles R. Larsen, Asst. Atty. Gen., submitted brief for defendant-respondent.

Before GARTZKE, P. J., and BABLITCH, and DYKMAN, JJ.

DYKMAN, Judge.

This action is for invasion of privacy. Plaintiff appeals from an order dismissing his complaint on the ground that the court lacked jurisdiction and that the complaint failed to state a claim upon which relief can be granted. The dispositive issue on appeal is whether the trial court was correct in concluding that plaintiff was required to serve notice of his claim upon the attorney general pursuant to sec. 895.45, Stats. (1977), ¹ as a condition precedent to the bringing of this action.

Plaintiff's complaint alleges that he is confined at the Mendota Mental Health Institute in Madison. ² It states that he filed a grievance complaining that he was denied certain products he had ordered, thus violating his right under sec. 51.61(1)(e), Stats., to the least restrictive conditions necessary to achieve the purposes of his commitment. The products are described as sexual devices and sexually-oriented films and printed matters. ³

The complaint further alleges that a written decision was issued regarding plaintiff's grievances. The decision described plaintiff as an individual "with a long history of molesting children," indicated that he is "obsessed with sex" and, by identifying the material plaintiff requested, implied the nature of the sexual practices in which he desired to engage. The complaint states that the decision is a medical record and was placed in plaintiff's patient's file. ⁴

Defendant is a member of the state legislature. According to the complaint, an unknown individual furnished a copy of the decision to defendant, who in turn made copies available to media representatives. Plaintiff claims that defendant either disclosed his identity or failed to conceal his identity when he made the decision available. The complaint alleges two claims of invasion of privacy and one under 42 U.S.C. sec. 1983 for violation of his constitutional right to privacy.

Defendant moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted on the ground that the plaintiff had not served notice of the circumstances of the event giving rise to the claim on the attorney general as required by sec. 895.45, Stats. (1977).

Defendant testified at the jurisdictional hearing that he received a document in March, 1978, from an anonymous source which outlined a request by an individual for pornographic materials. Defendant investigated and discovered that a hearing examiner had ruled that plaintiff should be permitted to receive the sexually-related materials to which the complaint refers. Defendant took this information to the Speaker of the Assembly, who felt the matter should be brought to the attention of the entire body. At the time, the Assembly had been devoting much attention to the operation of mental health hospitals in Wisconsin, particularly with regard to the cost of financing them. Defendant considered the hearing examiner's decision that plaintiff was entitled to receive sexually-related materials to represent a waste of taxpayers' money, and wanted the Assembly to discuss a request which was being made for an investigation of the matter.

In connection with defendant's speech to the Assembly to bring the matter to the attention of its members, defendant handed out press releases to persons representing the Milwaukee Journal, Milwaukee Sentinal, Associated Press, United Press International, and Post Publishing Company. He also gave those persons the front and back pages of the hearing examiner's report. Defendant testified that to the best of his knowledge, plaintiff's name was blacked out wherever it appeared in those pages.

Concluding that plaintiff was required to serve the notice provided by sec. 895.45(1), Stats. (1977), on defendant prior to commencing suit and that he failed to do so, the trial court dismissed the complaint for lack of jurisdiction and for failure to state a claim.

The following issues have been raised on appeal:

(1) Does the trial court lack jurisdiction over plaintiff's claims due to his failure to comply with sec. 895.45, Stats. (1977)?

(2) Does the complaint allege a violation of a constitutional right to privacy?

(3) Does legislative immunity bar the action?

Section 895.45(1), Stats. (1977), provides as follows:

No civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of such officer's, employe's or agent's duties, unless within 90 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employe or agent involved.

Plaintiff did not serve the notice required by sec. 895.45(1).

In Mannino v. Davenport, 99 Wis.2d 602, 612, 299 N.W.2d 823, 828 (1981), the court stated:

(W)e conclude that compliance with sec. 895.45(1) is necessary to warrant recovery against a state employee. Where a plaintiff has failed to comply with the terms of the statute and this defect is properly raised by a motion for summary judgment, the defendant is entitled to prevail whether or not he has raised the matter of noncompliance in his responsive pleading.

Thus, if plaintiff was required to comply with the statute's notice provisions, the trial court correctly dismissed the complaint for failure to state a claim and for lack of jurisdiction.

Plaintiff was not required to comply with the notice provisions with regard to his claim brought pursuant to 42 U.S.C. sec. 1983. ⁵ The court in Perrote v. Percy, 452 F.Supp. 604, 605 (E.D.Wis.1978), rejected a claim that sec. 1983 suits are subject to the statute's notice requirement:

Acceptance of the defendants' position would unacceptably elevate subtleties of state procedural law above the avenue of relief created by Congress for the protection of federal constitutional rights from deprivations by persons acting within state authority. Donovan v. Reinbold, (433 F.2d 738, 742 (9th Cir. 1970)).

We agree that this state procedural statute cannot bar a congressionally created right to obtain relief for violations of federal constitutional rights by persons acting under color of law. We therefore reverse the trial court's order which dismissed plaintiff's sec. 1983 claim.

Plaintiff cites Kurtz v. City of Waukesha, 91 Wis.2d 103, 280 N.W.2d 757 (1979), for the proposition that having found that the complaint states a claim upon which relief can be granted, we need not determine whether the facts alleged in the complaint provide a basis for recovery under other theories of law. Plaintiff would thus have us end our inquiry at this point. Kurtz does not require us to do so. Kurtz quotes Attoe v. Madison Professional Policemen's Association, 79 Wis.2d 199, 205, 255 N.W.2d 489, 492 (1977), to the effect that a plaintiff is bound by the facts alleged in the complaint, not by the legal theory which underlies those facts. Thus, if the facts alleged state any claim upon which relief can be granted, we are "not necessarily compelled to determine whether a complaint states more than one (claim)."

The question in this case is not whether alternate legal theories exist under which plaintiff may be entitled to recover on the facts alleged in the complaint, but whether plaintiff is entitled to rely on state tort law theories in addition to his federal law theory, despite his failure to provide notice of his injury to the attorney general. Therefore, although we hold that plaintiff is entitled to proceed on his sec. 1983 theory of recovery, we find it necessary to determine whether recovery on his state law claims is barred by noncompliance with sec. 895.45, Stats. (1977).

When the trial court holds a jurisdictional hearing, the burden to establish the court's jurisdiction is on the party claiming that the court has jurisdiction. Elm Park Iowa, Inc. v. Denniston, 92 Wis.2d 723, 731, 286 N.W.2d 5, 9 (Ct.App.1979). Plaintiff attempts to meet this burden by focusing on the word "duties" in the phrase "on account of any act growing out of or committed in the course of the discharge of such officer's, employe's or agent's duties." Plaintiff contends that defendant's duties did not include releasing his name to the press. He concludes that the notice requirement of sec. 895.45, Stats. (1977), is inapplicable because this is not an action brought against a state officer on account of an act committed in the course of the discharge of the officer's duties.

A statute "must be construed in light of its purpose." Johnson v. Misericordia Community Hospital, 99 Wis.2d 708, 734, 301 N.W.2d 156, 169 (1981). "The purpose of sec. 895.45(1), Stats., is to permit the attorney general to investigate a claim against an employee which might result in a judgment to be paid by the state under the indemnity statute, sec. 895.46." Yotvat v. Roth, 95 Wis.2d 357, 367, 290 N.W.2d 524, 530 (Ct.App.1980).

Section 895.46(1), Stats., may be likened to a liability insurance policy for public officers and employees. It provides that the state or a political subdivision will...