Kara B. by Albert v. Dane County, s. 94-1081
| Citation | 555 N.W.2d 630,205 Wis.2d 140 |
| Decision Date | 25 November 1996 |
| Docket Number | Nos. 94-1081,94-2908,s. 94-1081 |
| Parties | KARA B., by Guardian ad Litem, John C. ALBERT, Steven B., and Jennifer B., parents of Kara B., Plaintiffs-Appellants, v. DANE COUNTY, Dane County Department of Human Services, its agents and assigns, Shirley Aasen, Ed Page, Jr., Margaret/Marjorie Johnson, Estate of Margaret E. Eby, Terri Collins, Virginia Hanson, Wisconsin Municipal Mutual Insurance Company, Defendants-Respondents-Petitioners, d Sue Marshall, Roxanne Smit, Defendants. MIKAELA R., a minor, by Guardian ad Litem John C. ALBERT, and Joette R., parent of Mikaela R., Plaintiffs-Respondents, v. DANE COUNTY, Dane County Department of Human Services, its agents and assigns, Shirley Aasen, Ed Page, Jr., Margaret/Marjorie Johnson, Estate of Margaret E. Eby, Sue Marshall, Terri Collins, Virginia Hanson, Robert Syring, and Wisconsin Municipal Mutual Insurance Company, Defendants-Appellants-Petitioners, Roxanne Smit, Defendant, Sentry Insurance Company, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
For the defendants-respondents-appellants-petitioners there were briefs by John M. Moore, David J. Pliner and Bell, Metzner, Gierhart & Moore, S.C., Madison and oral argument by David J. Pliner.
For the plaintiffs-appellants-respondents there was a brief by Debra A. Petkovsek, John C. Albert and Eustice, Albert, Laffey & Fumelle, S.C., Sun Prairie and oral argument by Debra A. Petkovsek.
This case is before the court on a petition for review filed by Dane County, the Dane County Department of Human Services, its agents and assigns, and Wisconsin Municipal Mutual Insurance Company (collectively "Dane County"). The petitioners seek review of a published decision of the court of appeals, Kara B. v. Dane County, 198 Wis.2d 24, 542 N.W.2d 777 (Ct.App.1995), reversing in part and affirming in part two circuit court judgments. We affirm the decision of the court of appeals.
On review, there are three issues: (1) whether the Dane County public officials are entitled to qualified immunity from the plaintiffs' 42 U.S.C. § 1983 claims; (2) whether the scope of the constitutional duty to provide a foster child with safe and secure placement is measured by a deliberate indifference or professional judgment standard; and (3) whether Dane County is entitled to summary judgment because the Dane County public officials did not act with deliberate indifference as a matter of law. We hold that the Dane County public officials are not entitled to qualified immunity, that the constitutional duty owed to foster children is based on a professional judgment standard, and that Dane County is not entitled to summary judgment.
The relevant facts are not in dispute. In 1989 and 1990, Kara B. and Mikaela R. were adjudged to be children in need of protection or services in separate juvenile court proceedings, and were placed in the temporary custody of the Dane County Department of Social Services for foster home placement. Kara B., a seven year old girl, was placed in a licensed foster home operated by Roxanne Smit on March 28, 1989, and remained there until July 14, 1990. Mikaela R., an eleven year old girl, was placed in the Smit home on June 11, 1990. She remained there until December 18, 1990, when she fled after being sexually assaulted at knifepoint by two men in the basement of the home. The men were known to have a history of physically and sexually abusing children. In the course of investigating the assault, police contacted Kara B., who told them that she too had been sexually abused by Smit and by a man who had lived in the foster home during the course of her stay there.
In separate actions brought under 42 U.S.C. § 1983 and state-law negligence and professional malpractice claims, Kara B. and Mikaela R. sued Dane County for damages resulting from physical and sexual abuse that occurred during their separate stays in the Smit foster home. In the case brought by Kara B., the circuit court, Judge Mark A. Frankel, granted Dane County's motion for summary judgment dismissing the § 1983 claims. The court concluded that the Dane County public officials were entitled to qualified immunity because Kara B. had not shown that the public officials had violated a clearly established constitutional right. In Mikaela R.'s case, a second circuit court, Judge Gerald C. Nichol, denied Dane County's motion for summary judgment. This decision was based on the circuit court's determination that the Dane County public officials were not entitled to qualified immunity because they had a clearly established constitutional duty to protect Mikaela R. while she was in the Smit home, and that a reasonable jury could have found that the Dane County public officials had violated that duty.
The court of appeals held that: (1) the Dane County public officials were not entitled to qualified immunity from the 42 U.S.C. § 1983 claims brought by Kara B. and Mikaela R. because the public officials were accused of violating a clearly established right, (2) the public officials' conduct should be assessed based on a professional judgment standard, and (3) Dane County was not entitled to qualified immunity. Dane County petitioned for review and we granted the petition on January 16, 1996.
The first issue that we address is whether the Dane County public officials are entitled to qualified immunity. The issue of qualified immunity is a question of law to be decided by the court. This court decides questions of law independently and without deference to the lower courts. Barnhill v. Board of Regents, 166 Wis.2d 395, 406, 479 N.W.2d 917 (1992).
The doctrine of qualified immunity protects public officials from civil liability if their conduct does not violate a person's clearly established constitutional or statutory right. Barnhill, 166 Wis.2d at 406-07, 479 N.W.2d 917. Qualified immunity is designed to allow public officials to perform their duties without being hampered by the expense or threat of litigation. See Burkes v. Klauser, 185 Wis.2d 308, 325-27, 517 N.W.2d 503 (1994), cert. denied, 513 U.S. 1151, 115 S.Ct. 1102, 130 L.Ed.2d 1069 (1995), citing Harlow v. Fitzgerald, 457 U.S. 800, 807, 814, 102 S.Ct. 2727, 2732, 2736, 73 L.Ed.2d 396 (1982). In Harlow, the Supreme Court explained the importance of qualified immunity:
[I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty--at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties."
Harlow, 457 U.S. at 814, 102 S.Ct. at 2736 (citations omitted). In Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), the Supreme Court further elaborated on the goal of qualified immunity: "[t]he qualified immunity doctrine recognizes that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated." Id. at 195, 104 S.Ct. at 3019. Although qualified immunity plays a crucial role in allowing our government and its public officials to function effectively and efficiently, it is not absolute.
Qualified immunity does not protect public officials who have allegedly violated someone's clearly established constitutional right. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987) (Harlow, 457 U.S. at 819, 102 S.Ct. at 2738-39); Burkes, 185 Wis.2d at 326, 517 N.W.2d 503 (citation omitted). This, in part, stems from the fact that officials may reasonably anticipate that violation of a clearly established constitutional right will give rise to liability. As the Supreme Court stated in Harlow, "[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39. The parties dispute whether the constitutional right of foster children to safe and secure placement in a foster home was clearly established in 1989. Thus, we must determine whether the constitutional right in question was clearly established to decide whether the Dane County public officials are entitled to qualified immunity.
Such a determination is not as easily reached as might be expected. As was noted by this court in Barnhill, "[c]onfusion in this area of law derives from the level of generality that should be afforded to 'clearly established law' at the time of the alleged unlawful act." Barnhill, 166 Wis.2d at 407, 479 N.W.2d 917. The United States Supreme Court attempted to clarify the meaning of clearly established constitutional right in Anderson, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523. In that case, the Court stated:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Id. at 640, 107 S.Ct. at 3039 (citations omitted). 1
In Burkes, this court considered what constitutes a clearly established constitutional right for purposes of qualified immunity. This court stated:
Government officials are not protected from suit for civil damages (that is, they do not have the defense of qualified immunity) when at the time they acted they knew or should...
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