Kramer v. Horton
| Decision Date | 13 March 1986 |
| Docket Number | No. 84-762,84-762 |
| Citation | 128 Wis.2d 404,383 N.W.2d 54 |
| Parties | , 30 Ed. Law Rep. 1274 Paul KRAMER, Plaintiff-Respondent and Cross-Appellant, v. Frank E. HORTON, Chancellor of the University of Wisconsin-Milwaukee, Robert W. Corrigan, Dean of the School of Fine Arts of the University of Wisconsin- Milwaukee, and Gerald T. McKenna, Chairman of the Department of Music of the University of Wisconsin-Milwaukee, Defendants-Appellants and Cross-Respondents- Petitioners. |
| Court | Wisconsin Supreme Court |
LeRoy L. Dalton, Asst. Atty. Gen., argued for defendants-appellants and cross-respondents-petitioners; Bronson C. La Follette, Atty. Gen., on briefs.
Dennis L. Fisher, argued, for plaintiff-respondent and cross-appellant; Susan J. Marguet and Meissner, Tierney, Ehlinger & Whipp, S.C., Milwaukee, on brief.
Bruce Meredith, Staff Counsel, Madison, and Wisconsin Educ. Ass'n Council, for amicus curiae.
The defendants, Frank Horton, Chancellor of the University of Wisconsin-Milwaukee, Robert Corrigan, Dean of the School of Fine Arts of the University of Wisconsin-Milwaukee, and Gerald McKenna, Chairman of the Department of Music of the University of Wisconsin- Milwaukee, all in an official representative capacity (University) seek review of a published decision of the court of appeals, Kramer v. Horton, 125 Wis.2d 177, 371 N.W.2d 801 (Ct.App.1985). The court of appeals affirmed a judgment of the circuit court for Milwaukee county, Judge Harold B. Jackson, Jr., in which the circuit court ordered a "name-clearing" hearing for the plaintiff, Paul Kramer, a tenured professor in the Department of Music, and awarded him $38,654.17 for attorney fees, expenses, and disbursements, under 42 U.S.C. sec. 1988 (1976). The parties raise numerous issues on appeal, but one issue is dispositive: whether Kramer should have exhausted his administrative remedies prior to instituting this suit. Because we conclude that he should have exhausted his administrative remedies before commencing this action, we reverse the decision of the court of appeals.
In 1965 Paul Kramer, an oboist who had spent several years as a concert musician with the Boston Symphony and other orchestras, contacted the Chairman of the Department of Music at the University of Wisconsin-Milwaukee (Department) about a possible opening on the faculty for an oboist. He auditioned in the spring of 1966. The Dean of the School of Fine Arts sent him a letter of appointment later that year. The letter stated: "In addition to teaching general and applied music, your services to the university will include performing." Apparently, the Dean and Kramer had discussed the possibility of forming a woodwind quintet, composed entirely of faculty members of the Department. When Kramer accepted the appointment, the Woodwind Arts Quintet did not exist.
With the Dean's support, Kramer helped organize the Woodwind Arts Quintet (Quintet) and actively participated in recruiting members. The formation of the all-faculty Quintet was completed in October, 1970. Beginning in 1971, members of the Quintet received formal release time from a portion of their teaching responsibilities to allow them to rehearse and perform.
Kramer received tenure and became an associate professor in 1971. In 1975 he was promoted to the position of full professor in the Department. Kramer was a member of the Quintet from 1970 until 1979 when the Chairman of the Department reassigned him to full-time teaching responsibilities which denied him the opportunity to participate in the Quintet. Believing he was treated unfairly in being reassigned, Kramer commenced this lawsuit.
Although most of the events surrounding Kramer's reassignment took place in July and August of 1979, problems within the Quintet had emerged as early as November, 1977. At a rehearsal of the Quintet in November, 1977, members of the Quintet criticized Kramer's performance at a prior concert during which he played with a cracked reed in his oboe. They discussed with Kramer their concerns about performance problems, rehearsal problems, stage mannerisms, and reed problems. They informed Kramer that his performance in the group was "unacceptable" because his playing was not up to the level it should be.
On more than one occasion between November, 1977, and July, 1979, members of the Quintet again expressed criticism of Kramer and voiced their concerns to him. Because the other members of the Quintet did not perceive any improvement on Kramer's part during this period, they became increasingly dissatisfied. Finally, in the summer of 1979, they concluded that they could not continue playing in the Quintet with Kramer.
The frustrations of the other members of the Quintet culminated in a confrontation with Kramer on July 21, 1979, when the Quintet held a meeting at which the other members of the Quintet asked Kramer to resign from his position in the Quintet. Once again the Quintet members expressed to Kramer the basis for their dissatisfaction, but they did not provide him with a written statement of reasons for his requested resignation. Kramer refused to resign.
Kramer raised objections to his proposed removal with the Chairman of the Department and with the Dean of the School of Fine Arts, but to no avail. The Chairman, who was aware of the discontent of the other members of the Quintet, explained to Kramer that he could not conceive of a meaningful way to force a chamber music group to play with a member in whom they had no confidence. Believing it would serve the best interests of the University and the Quintet, the Chairman reassigned Kramer's time from rehearsing to teaching.
After learning of his reassignment, Kramer filed a grievance petition with the University Committee, the faculty executive committee for the entire University. The University Committee responded on August 29, 1979, informing Kramer that the Executive Committee of the Department was the appropriate forum in which to seek initial review of his reassignment. On September 4, 1979, the first day of class in the 1979-80 school year, Kramer commenced this lawsuit.
Kramer appealed his reassignment to the Executive Committee of the Department on September 7, 1979. On September 18, 1979, the Executive Committee convened a special meeting at which it reviewed the decision to reassign Kramer from rehearsing to additional teaching. Kramer did not receive a written statement of the reasons for his reassignment either prior to or at this meeting. The Executive Committee, however, did give him an opportunity to present his side of the story. He also was allowed to have counsel present, although neither he nor his counsel was permitted to call witnesses, cross-examine speakers, or introduce evidence.
On September 26 the Executive Committee issued a written report in which it affirmed that the Chairman had acted within the jurisdiction of his office in reassigning Kramer to fulltime teaching duties. According to the report, the Executive Committee found adequate support for the decision and believed the decision served the best interests of the Department.
Kramer appealed to the Chancellor in March, 1980, challenging the Executive Committee's decision on both substantive and procedural grounds. In a letter dated October 29, 1980, the Chancellor denied Kramer's appeal. Kramer did not appeal the Chancellor's decision to the Board of Regents.
In his initial complaint, filed on September 4, 1979, Kramer claimed that the University had deprived him of his property right in the Quintet position in violation of the United States Constitution and the Wisconsin Constitution. Kramer filed an amended complaint on October 30, 1979, further alleging that the University deprived him of a property right and a liberty interest in violation of the fourteenth amendment to the Constitution. He asked for equitable relief under 42 U.S.C. sec. 1983 and for attorney fees under 42 U.S.C. sec. 1988. Finally, he asserted a second cause of action alleging a violation of the Wisconsin Administrative Code, UWS sec. 6.01 (1975).
After denying the defendants' motions to dismiss and the defendants' motion for summary judgment, the circuit court held a trial in April, 1983. At trial several witnesses testified regarding damage to Kramer's reputation resulting from his removal from the Quintet. In October, 1983, the court decided that the University did not provide Kramer with due process because it did not give him an adequate hearing prior to or subsequent to his reassignment to fulltime teaching. Specifically, the court held that the University violated due process because it failed to provide Kramer with a written statement of the reasons for his reassignment and did not allow Kramer to call his own witnesses or cross-examine other witnesses.
The court entered judgment for Kramer in February, 1984, requiring that the University conduct a "name-clearing" hearing, pursuant to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), to rectify any harm to Kramer's liberty interest. Further, the court also entered judgment against the defendants in the amount of $38,654.47 to cover Kramer's costs, including reasonable attorney fees and reimbursement of expenses and disbursements.
The University appealed the circuit court's judgment; Kramer cross-appealed claiming the circuit court should have found a property interest in addition to a liberty interest. 1 The court of appeals issued its decision in May, 1985, affirming the judgment of the circuit court.
Specifically, the court of appeals upheld the circuit court's denial of the defendants' two motions to dismiss. With regard to the defendants' assertion that Kramer failed to comply with the notice of claim statute, sec. 895.45, Stats.1977, the court of appeals ruled that compliance is not required on a sec. 1983 action, citing Perrote v. Percy, 452 F.Supp. 604 (E.D.Wis.1978). With...
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