Kurtz v. City of Waukesha

Decision Date29 June 1979
Docket NumberF,No. 76-456,D,B,P,L,No. 1,1,76-456
Citation91 Wis.2d 103,280 N.W.2d 757
Parties, 37 Fair Empl.Prac.Cas. (BNA) 1134, 20 Empl. Prac. Dec. P 30,115 Beverly KURTZ, Plaintiff-Respondent, v. CITY OF WAUKESHA, State of Wisconsin, Waukesha Joint School Districtiscal Board of Waukesha Joint School Districtoard of Education of Waukesha Joint School Districtloyd Davies, Individually and as President of the Board of Education, Francis Vaughan, Mary Sue Short, John Dequardo, R. H. Schuett, Jr., William Carr, Mrs. H. B. Heinzen, Richard Ahlgren and John W. Muth, Individually and as members of the Board of Education, Elsie Bucholtz, Individually and as treasurer of the Board of Education, Kenneth Reinke, Individually, as clerk of the Board of Education and as Superintendent of Waukesha Joint School Districtaul Dybvad, Individually and as personnel director of Waukesha Joint School District, and Sigmund Snopek, Individually and as Principal of Pleasant Hill Elementary School of Waukesha Joint School Districtefendants-Appellants.
CourtWisconsin Supreme Court

Patrick F. Brown, Waukesha (argued), for defendants-appellants; Gerald T. Janis, Waukesha, on brief.

Bruce F. Ehlke, Madison (argued), for plaintiff-respondent; Lawton & Cates, Madison, on brief.

CALLOW, Justice.

On April 6, 1973, the plaintiff, a woman schoolteacher, filed this action in Circuit Court for Waukesha County. The defendants include the City of Waukesha which, according to the complaint, controls the fiscal affairs of the defendant Waukesha Joint School District No. 1 through the defendant "Fiscal Board." The nonfiscal affairs of the District are controlled by the defendant Board of Education. Joined as defendants with these governmental units are the members of the Board of Education, the Board's treasurer, the superintendent of the District, its personnel director, and the principal of the school at which the defendant taught. The complaint alleges that, during the 1970-1971 school year, the plaintiff taught at an elementary school in the District. In January, 1971, she informed the defendants that she was pregnant. The defendants refused to allow her claim for accumulated sick leave pay during the time she was disabled as a result of the pregnancy. In April, 1971, they terminated her employment and have since refused to rehire her. She alleges that she has been without a job since that date.

The complaint alleges that the defendants' conduct constituted arbitrary and capricious sex discrimination in violation of the constitutional protections embodied in the Fourteenth Amendment to the United States Constitution and Article I of the Wisconsin Constitution; and the statutory provisions of 42 U.S.C. secs. 1983, 2000e-2(a)(1) & (2); and secs. 111.32, 111.325, Wis.Stats. She further alleges that the defendants acted individually and pursuant to a conspiracy to deprive her of her employment.

Plaintiff alleges finally that, as a result of the defendants' conduct, she suffered "emotional upset and illness" and damage to her character. She seeks reinstatement and recovery of her sick leave pay for the period of her pregnancy-related disability, recovery of her salary and benefits for the years she was unemployed, and general and punitive damages against the individually-named defendants.

The defendants demurred to the complaint on the grounds that it failed to state a cause of action and that the court lacked jurisdiction over the defendants by reason of governmental immunity. Secs. 263.06(1)(a) and (6), Stats., 1973. The trial court overruled the demurrer, and the defendants moved for reconsideration of the decision. From an order filed January 4, 1977, overruling the demurrer and denying the motion for reconsideration, the defendants appeal.

The issues on appeal are: (1) Does the complaint allege facts sufficient to constitute a cause of action? (2) Does the court lack personal jurisdiction over the defendants because of governmental immunity?


In Attoe v. Madison Professional Policemen's Asso., 79 Wis.2d 199, 205, 255 N.W.2d 489, 492 (1977), this court summarized the principles applicable to appellate review of an order overruling a demurrer:

"Suffice it to emphasize that on demurrer, the pleadings are to be liberally construed with a view to substantial justice between the parties. The question which must be answered by the court is whether Any cause of action has been stated upon which relief can be granted. It is not the theory of the plaintiff's case that is controlling. The plaintiff is bound by the facts he has alleged, not by his theory of recovery. Val-Lo-Will Farms v. I. Azoff & Asso., 71 Wis.2d 642, 238 N.W.2d 738 (1976). A court is not necessarily compelled to determine whether a complaint states more than one cause of action. If a cause of action is stated in a complaint, although it may be combined with other allegations not constituting a separate cause of action, the demurrer must be overruled. Schwartz v. Milwaukee, 43 Wis.2d 119, 122, 168 N.W.2d 107 (1969)." (Emphasis in original.)

Here we have multiple theories of recovery stated in the complaint. Although we need only determine whether the facts alleged state any cause of action, we deem it desirable, in view of the complexity of the issues presented, to discuss more than a single theory of recovery.

A. The Fourteenth Amendment and Sec. 1983

42 U.S.C. sec. 1983 provides the statutory vehicle for the enforcement of the Fourteenth Amendment rights:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The Fourteenth Amendment provides in part:

"(N)or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

We have, since this appeal was taken, recognized that state courts have subject-matter jurisdiction over claims based on sec. 1983. Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). Also decided after the trial court's order was Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in which the Court, overruling its prior holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that local governments are "persons" within the meaning of sec. 1983. The defendants maintain that Monell should be applied prospectively only.

Retrospective application of a judicial holding is a question of policy, not constitutional law. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), the Court articulated three factors to be considered in deciding whether a holding ought not to be applied retrospectively:

"In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that 'we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Finally, we have weighed the inequity imposed by retroactive application, for '(w)here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship" by a holding of nonretroactivity.' " (Citations omitted.)

We find nothing in the Monell opinion limiting its application to cases arising in the future. Our consideration of the factors set forth in Chevron supports the conclusion that there is no reason to depart from the general principle of retrospective application. It is true that Monell represents a departure from the law established in Monroe v. Pape, supra. However, in deciding to overrule the holding in Monroe v. Pape that municipalities did not fall within the definition of "persons" in sec. 1983, the Monell Court observed that Monroe was a departure from prior practice and that municipalities can assert no claim of reliance on Monroe to violate constitutional rights. 436 U.S. at 695-700, 98 S.Ct. 2018. The Court also noted that it had decided many cases dating from 1954, brought under sec. 1983, in which the principal defendant was a school board. 436 U.S. at 663-65, 98 S.Ct. 2018. The significance of Monell's overruling Monroe pales in the light of these considerations. We conclude that retrospective application of Monell's holding would generally further the policies embodied in sec. 1983 and would not work inequitable results.

The Court in Monell, supra at 690-91, 98 S.Ct. at 2035-2036 said:

"Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, . . ., the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every...

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