Hemberger v. Bitzer

• Decision Date: 13 March 1998
• Docket Number: No. 96-2973,96-2973
• Citation: 216 Wis.2d 509,574 N.W.2d 656
• Parties: , 13 IER Cases 1473 Jane HEMBERGER, Plaintiff-Respondent, v. Jo Ann BITZER, Alice Ruhland and Al Bennin, Defendants-Appellants, Ed Ringgenberg, Kathy Plehn and Douglas Maxwell, Defendants.
• Court: Wisconsin Supreme Court

Page 656

574 N.W.2d 656

216 Wis.2d 509, 13 IER Cases 1473

Jane HEMBERGER, Plaintiff-Respondent, v. Jo Ann BITZER, Alice Ruhland and Al Bennin, Defendants-Appellants Ed Ringgenberg, Kathy Plehn and Douglas Maxwell, Defendants.

No. 96-2973.

Supreme Court of Wisconsin.

Argued Dec. 3, 1997.

Decided March 13, 1998.

For the defendants-appellants there were briefs by Michael J. Modl and Axley Brynelson, Madison and oral argument by Michael J. Modl.

For the plaintiff-respondent there was a brief by Robert J. Gingras, Paul A. Kinne and Gingras & Cates, S.C., Madison and oral argument by Steven J. Schooler of Lawton & Cates, S.C., Madison ¶1 WILLIAM A. BABLITCH, Justice.

The narrow question presented on appeal is whether 42 U.S.C. § 1983 claims brought in Wisconsin are governed by a three- or six-year statute of limitations. The plaintiff, Jane Hemberger, claimed that the defendants violated her rights to free speech when they allegedly retaliated against her by terminating her employment. She brought this action approximately four years after the termination. Because Wis. Stat. § 893.53 (1991-92), ¹ providing a six-year statute of limitations, is Wisconsin's residual personal injury statute of limitations, we conclude that Hemberger's action was timely filed. Accordingly, we affirm.

¶2 The facts relevant to this appeal are not in dispute. Jane Hemberger was terminated from her employment on May 23, 1989. More than four years later, on August 26, 1993, she commenced this action. Hemberger alleged that her termination by her former employer, Fitch-Rona Emergency Medical Service District, through the actions of people associated with her employer, violated her free speech rights protected by the First Amendment of the United States Constitution and secured by 42 U.S.C. § 1983 (reprinted below). ² The circuit court denied the defendants' motion to dismiss pursuant to Wis. Stat. § 802.06(2), determining that the six-year statute of limitations of Wis. Stat. § 893.53 applies to actions brought under § 1983 and therefore, the plaintiff's § 1983 action was not time barred. The action proceeded to trial, and the jury found for the plaintiff against three of six defendants: JoAnn Bitzer, Alice Ruhland, and Al Bennin. The defendants timely appealed the entry of judgment against them, raising on appeal the issue of whether the plaintiff's § 1983 claims are time-barred. The court of appeals certified the case to this court pursuant to Wis. Stat. § (Rule) 809.61 to decide the appropriate statute of limitations in Wisconsin for claims under § 1983.

¶3 The appropriate Wisconsin statute of limitations to apply to claims brought under 42 U.S.C. § 1983, in accord with the standard set forth in Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989), is a question of statutory construction which this court reviews de novo. See Hughes v. Chrysler Motors Corp., 197 Wis.2d 973, 978, 542 N.W.2d 148 (1996).

¶4 The defendants rely on the language of Wis. Stat. §§ 893.53 and 893.54, legislative history, and two Wisconsin Court of Appeals cases to assert that § 893.54 (reprinted below), ³ the three-year statute, is the applicable statute of limitations for actions brought under 42 U.S.C. § 1983. See Hanson v. Madison Service Corp., 125 Wis.2d 138, 370 N.W.2d 586 (Ct.App.1985); Kempfer v. Evers, 133 Wis.2d 415, 395 N.W.2d 812 (Ct.App.1986). The plaintiff, relying on statutory language and case law, asserts that § 893.53 (reprinted below), ⁴ the six-year statute, is the applicable statute of limitations for actions brought under § 1983. See Gray v. Lacke, 885 F.2d 399 (7th Cir.1989).

¶5 Although this court has not previously addressed the specific issue presented by this case, the United States Supreme Court has given guidelines, and the Court of Appeals for the Seventh Circuit and the Wisconsin Court of Appeals have spoken on the issue. We first provide a chronology of cases which have addressed the issue of which state statute of limitations applies to actions brought under 42 U.S.C. § 1983.

¶6 In April 1985, in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the United States Supreme Court recognized that its previous holdings, which required courts to apply the state statute of limitations most analogous to the underlying 42 U.S.C. § 1983 claim, had resulted in confusion, inconsistency, and time-consuming litigation. See 471 U.S. at 272-73, 105 S.Ct. at 1945. (Annot., 45 A.L.R.Fed. 548, 554 (1979) provides a comprehensive annotation of cases that have resulted in "uncertainty, confusion, and lack of uniformity in selecting the applicable statute of limitations in § 1983 suits." Id. at 272 n. 25, 105 S.Ct. at 1945 n. 25). Because the Court determined that a simple, broad characterization of § 1983 claims best fits that statute's remedial purpose, the Court held that the most appropriate state statute of limitations applicable to § 1983 claims is the statute governing personal injuries. See id. at 272, 280, 105 S.Ct. at 1944, 1949.

¶7 Within weeks of the Wilson decision, the Wisconsin Court of Appeals concluded that Wis. Stat. § 893.54, providing a three-year statute of limitations for "injuries to the person," applied to claims brought under 42 U.S.C. § 1983. See Hanson, 125 Wis.2d at 141, 370 N.W.2d 586. Later, the court of appeals followed the holdings of Wilson and Hanson without discussion and again concluded that actions brought under § 1983 must be brought within the three-year statute of limitations according tos 893.54. See Kempfer, 133 Wis.2d at 418, 395 N.W.2d 812.

¶8 In 1989, the United State Supreme Court again faced the question of the appropriate statute of limitations for claims brought under 42 U.S.C. § 1983 in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The Court acknowledged that although Wilson supplied a clear answer in states with only one statute of limitations for all personal injury claims, confusion remained in states with one or more statutes of limitations for enumerated intentional torts and a residual statute for all other personal injuries. See Owens, 488 U.S. at 236, 241, 109 S.Ct. at 574, 577. The Court held that "where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions." Id. at 249-50, 109 S.Ct. at 582 (footnotes omitted). The United States Supreme Court believed that the state's general or residual personal injury statute of limitations would be easily identifiable by its language and application. See id. at 247, 109 S.Ct. at 580.

¶9 Since Owens no Wisconsin appellate court has published an opinion addressing the specific question of which Wisconsin personal injury statute of limitations applies to claims brought under 42 U.S.C. § 1983. The Court of Appeals for the Seventh Circuit, however, relied on Owens to determine that Wis. Stat. § 893.53, which provides a six-year statute of limitations for "action[s] to recover damages for an injury to the character or rights of another ...," is Wisconsin's general or residual statute of limitations for personal injury actions. See Gray, 885 F.2d at 407-409. The court relied on three factors to support its conclusion that the appropriate statute of limitations for § 1983 claims is six years under § 893.53. First, in a case for intentional interference with contractual relations the Wisconsin Court of Appeals interpreted Wis. Stat. § 893.19(5) (1977), the predecessor to § 893.53, as the residual or general personal injury statute of limitations. See id. at 408 (referring to Segall v. Hurwitz, 114 Wis.2d 471, 339 N.W.2d 333 (Ct.App.1983)). The language of § 893.53 is virtually the same as the language of its predecessor, § 893.19(5).

¶10 Second, the language of Wis. Stat. § 893.53, the statute of limitations for "injury to the character or rights of another" except as otherwise provided, is a much broader statute than Wis. Stat. § 893.54. See Gray, 885 F.2d at 408. "The broad language of the personal rights statute of limitations is also consistent with the purpose of § 1983, which is to provide a remedy for a 'wide spectrum of claims' that include more than just bodily injury." Id. (citing Owens, 488 U.S. at 249, 109 S.Ct. at 581).

¶11 Finally, the court in Gray acknowledged that Wisconsin federal district courts have, since Wilson, determined that Wis. Stat. § 893.53 was the appropriate personal rights statute of limitations. See Gray, 885 F.2d at 408 (referring to Saldivar v. Cadena, 622 F.Supp. 949, 955 (W.D.Wis.1985); Jordi v. Sauk Prairie School Bd., 651 F.Supp. 1566, 1573 (W.D.Wis.1987); Thompson v. County of Rock, 648 F.Supp. 861, 866 (W.D.Wis.1986)). The court in Gray also noted that the Wisconsin Court of Appeals earlier determined that the appropriate statute of limitations was three years under Wis. Stat. § 893.54. However, the court recognized that Hanson was decided before Owens and the Hanson court, therefore, did not have the benefit of the Owens analysis. See Gray, 885 F.2d at 409.

¶12 With this case law as a backdrop we now turn to the issue before us. The issue is resolved by answering two questions. First, isWis. Stat. § 893.53, the six-year statute of limitations, a general or residual statute? If so, does it apply to personal injury actions? If the answer to both questions is "yes," we are then constrained by Owens to find that the six-year statute of limitations is controlling for a cause of action under 42 U.S.C. § 1983.

¶13 The answer to the first question is easily decided from the language of the statute. The language of Wis. Stat. § 893.53 makes it clear that the statute is residual. It applies "except where a different period is expressly prescribed." Wis. Stat. § 893.53. ⁵ As noted in Gray, § 893.53 is a much broader statute than Wis. Stat. § 893.54 which only applies to "action[s] to recover damages...