K.L. v. Hinickle

• Decision Date: 24 May 1988
• Docket Number: No. 86-1557,86-1557
• Citation: 144 Wis.2d 102,423 N.W.2d 528
• Parties: K.L., Plaintiff-Appellant-Petitioner, v. Fred E. HINICKLE, Arthur L. Gerg, Donald Quatsoe, Gail Faust, Lori Caygill, Phyllis Reinn, Nelsine Doherty, Edward Parker, John Raffel, Oscar D. Shade, Fred Melendez, Eugene Thomas, Marion Wittig, Ralph Collins, and the Home Indemnity Co., a foreign corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 528

423 N.W.2d 528

144 Wis.2d 102

K.L., Plaintiff-Appellant-Petitioner, v. Fred E. HINICKLE, Arthur L. Gerg, Donald Quatsoe, Gail

Faust, Lori Caygill, Phyllis Reinn, Nelsine Doherty, Edward

Parker, John Raffel, Oscar D. Shade, Fred Melendez, Eugene

Thomas, Marion Wittig, Ralph Collins, and the Home Indemnity

Co., a foreign corporation, Defendants-Respondents.

No. 86-1557.

Supreme Court of Wisconsin.

Argued March 1, 1988.

Decided May 24, 1988.

Howard A. Davis, Virginia M. Antoine and Habush, Habush & Davis, S.C., Milwaukee and oral argument by Howard A. Davis, for plaintiff-appellant-petitioner.

Robert D. Repasky, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for defendants-respondents.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals, affirming a summary judgment of the circuit court for Milwaukee county, Honorable John F. Foley, circuit judge. The circuit court held in favor of the defendants, who were members of the Wisconsin Parole Board (Board) and certain employees of the Department of Health and Social Services, for failure of the complaint of K.L. to state a claim upon which relief could be granted.

On review, K.L. argues her complaint for damages stated two actionable claims for breach of "ministerial" duties by the defendants. She alleges these breaches resulted in injuries to her when she was sexually assaulted by a parolee, Michael A. Jones, whom the Board had released approximately seventeen months prior to his mandatory release date ¹ for a previous rape conviction. Her complaint first alleges that the defendants failed to give proper notice of Jones' parole applications to the "district attorney ... who tried the inmate," contrary to sec. 57.06(1)(a), Stats. (1977), because notice was given to the elected district attorney rather than the deputy district attorney who actually prosecuted Jones at trial. Second, she alleges the Board failed to comply with the employment placement requirement of sec. 57.06(2), Stats. (1977). ² We conclude that the defendants met their ministerial duty by notifying the elected district attorney, who held such office when Jones was tried, of Jones' parole application. We also conclude that, nebulous as the employment "plan" for Jones was, the broad discretionary authority granted to the Board under the "otherwise provided for" language of the parole statute was exercised. We therefore affirm the decision of the court of appeals.

The facts in this case are not disputed. In 1978, Michael A. Jones (Jones) was convicted in Milwaukee county of first degree sexual assault and false imprisonment. Deputy District Attorney Michael Malmstadt was the prosecutor who tried the case.

On his fourth application for parole, approximately seventeen months before his mandatory release date, Jones was released by the Board. Prior to this, and before each previous application was considered, notice of the pending parole hearing was timely sent to E. Michael McCann, the District Attorney for Milwaukee County. The Board's written placement plan, prepared for Jones prior to the making of his parole decision, included comments that anticipated employment was "[t]o be secured upon release. There may be an employment offer from his or his wife's family upon release," and that he had completed a drafting course.

Approximately two and a half months after Jones' parole, he brutally beat and sexually assaulted the plaintiff in this action, K.L. She then brought suit against the defendants, alleging negligence in the performance of ministerial duties relating to their parole decision concerning Jones. Her complaint alleged that, contrary to sec. 57.06(1)(a), Stats., they failed to give written notice of Jones' application for parole to the deputy district attorney who actually tried the case resulting in Jones' original incarceration. The complaint further alleged that members of the parole board failed to make suitable arrangements for Jones' employment upon parole contrary to sec. 57.06(2) Stats. She alleged that this negligence was a direct and proximate cause of Jones' release before his mandatory release date and, therefore, a direct and proximate cause of her injuries and damages.

The defendants moved to dismiss the complaint on the grounds that both allegations failed to state a claim upon which relief could be granted. The circuit court concluded that the defendants had properly complied with the notice requirement of sec. 57.06(1)(a), Stats., and with the employment determination requirement of sec. 57.06(2), Stats., and therefore, granted motion to dismiss.

K.L. appealed, and the court of appeals issued a memorandum decision adopting the analysis relied upon by the circuit court and affirming the judgment. K.L. then petitioned this court for review, seeking a determination concerning the requirements of both statutory provisions.

On review of a circuit court's grant of summary judgment, this court applies the standards established in sec. 802.08(2), Stats., in the same manner as the circuit court. Summary judgment should be granted only when it appears on the record that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Wright v. Hasley, 86 Wis.2d 572, 579, 273 N.W.2d 319, 322-23 (1979).

Generally, in Wisconsin, a public officer is not personally liable to one injured as a result of a discretionary act performed within the scope of official duty. Liability will attach, however, for damages resulting from negligent performance of a purely ministerial duty. Lister v. Bd. of Regents, 72 Wis.2d 282, 300-01, 240 N.W.2d 610, 621-22 (1976). "[A] public officer's duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode, and occasion for its performance with such certainty that nothing remains for judgment or discretion." Id. at 301, 240 N.W.2d at 662; see also C.L. v. Olson, 143 Wis.2d 701, 711-12 422 N.W.2d 614, 620-23 (1988).

K.L. argues that both statutory provisions upon which she bases her complaint are ministerial in nature. Her first cause of action relies on sec. 57.06(1)(a), Stats., which reads in pertinent part: "The district attorney and judge who tried the inmate shall be notified in writing at least 10 days before the first application for parole is acted upon and if they so request be given like notice of each subsequent application." As the circuit court and court of appeals correctly concluded, the duties imposed by this provision are ministerial in nature. This portion of the statute merely requires the performance of a specific task, namely, the giving of notice. It requires that the mode of this communication be in writing, and fixes the time and occasion of performance at ten days prior to the taking of action on the application for parole. If notice was improperly given contrary to the requirement of this provision, then, under Lister, the defendants would not be shielded by immunity.

K.L. contends that an actionable breach of sec. 57.06(1), Stats., occurred because notice was not given to Deputy District Attorney Malmstadt, who actually appeared and prosecuted Jones at trial. She argues this is contrary to the requirement that the "district attorney ... who tried the inmate shall be notified...." The defendants argue that the plain language of this statute requires notification of the "district attorney" and that, under sec. 59.47, the elected district attorney for each county has a duty to try all actions in that county. ³ Therefore, they claim notice was properly given to District Attorney McCann, who was duly elected district attorney for Milwaukee County when Jones was tried.

A determination of what is imposed by a ministerial duty is a question of law which an appellate court reviews without deference to lower court findings. See Larsen v. Wisconsin Power & Light Co., 120 Wis.2d 508, 516, 355 N.W.2d 557, 562 (Ct.App.1984). As the differing interpretations of each party demonstrate, the language, "the district attorney ... who tried the inmate," may be reasonably construed in two different ways, either as the person elected to the post of district attorney, or the person who prosecuted the defendant at trial, whether the elected district attorney or a deputy or assistant district attorney. We look, therefore, to the scope, history, context, subject matter and object of this statutory provision to help resolve this ambiguity and ascertain legislative intent as to its meaning. In Interest of P.A.K., 119 Wis.2d 871, 878-79, 350 N.W.2d 677, 681-82 (1984).

The legislative history of sec. 57.06(1), Stats. shows that the district attorney notification requirement was created in 1919. At that time, the pertinent language of the statute required ten days written notice to the district attorney "who participated in the trial of the prisoner." 1919 Wis.Laws 615, sec. 8. Language similar to that currently used, requiring notice to the district attorney "who tried an inmate," was adopted in 1947. 1947 Wis.Laws 477. The only other substantive change to this provision was made in 1955, when language was added to allow a district attorney to request notice of subsequent applications for parole after the first application. 1955 Wis. Laws 260. The drafting record is silent as to the purpose for which these changes were created. Standing alone, they do not clarify the meaning with which the legislature intended to imbue this provision. We next examine these changes, therefore, in relation to pertinent case and statutory law.

K.L. contends that State ex rel. Zabel v. Hannan, 219 Wis. 257, 262 N.W. 625 (1935), supports her position that the prosecutor who actually appeared at trial must be notified. We disagree. In Zabel, the court required notice to be given to District Attorney William A. Zabel,...