Lister v. Lucey, 77-1757

• Decision Date: 04 May 1978
• Docket Number: No. 77-1757,77-1757
• Citation: 575 F.2d 1325
• Parties: Thomas E. LISTER et al., Plaintiffs-Appellants, v. Patrick J. LUCEY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1325

575 F.2d 1325

Thomas E. LISTER et al., Plaintiffs-Appellants, v. Patrick J. LUCEY et al., Defendants-Appellees.

No. 77-1757.

United States Court of Appeals Seventh Circuit.

Argued Jan. 20, 1978.

Decided May 4, 1978.

Daniel W. Hildebrand, Madison, Wis., for plaintiffs-appellants.

Betty R. Brown, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellees.

Before SWYGERT, CUMMINGS and TONE, Circuit Judges.

CUMMINGS, Circuit Judge.

About six and one-half years ago, plaintiffs commenced this action in the Western District of Wisconsin challenging the constitutionality of a Wisconsin statute. After part of their complaint was dismissed, in 1973 the district judge abstained on the authority of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, and retained jurisdiction while plaintiffs sought relief in the state courts. In July 1976, having been presented with no clarifying interpretation of state law, the district court dismissed the complaint and plaintiffs filed this appeal.

At the time their first complaint was filed, the four plaintiffs were students at the University of Wisconsin Law School and were classified as nonresidents for tuition purposes. Their October 27, 1971, complaint was a class action under 42 U.S.C. § 1983 challenging Wis.Stats. § 36.16 and seeking injunctive, declaratory and monetary relief. Section 36.16, which defined residents and nonresidents for tuition purposes, ¹ was asserted to be unconstitutional on its face because subsection (1)(ae) "granted resident status to resident women who are wives of resident working husbands, but not to resident men who are husbands of resident working wives" and unconstitutional as interpreted by the defendant officials because it was being construed "so as to create an irrebutable (sic) presumption of non-residency for such students who commence their studies shortly after establishing residency in the State of Wisconsin" (Complaint P 23).

Before the original defendants answered the complaint, on November 15, 1971, plaintiffs filed an amended complaint which added several defendants. The defendants were and are those who were then serving as Governor of Wisconsin, Regents of the University of Wisconsin, the President of the University of Wisconsin, and the Chancellor, Registrar, Residency Examiner and the members of the Committee on Appeals from Non-Resident Tuition of the University of Wisconsin, Madison campus. All were sued in both their individual and official capacities and the Regents also were sued as a collective body. The amended complaint set forth facts and allegations about each of the named plaintiffs in order to indicate that they were bona fide residents of the state, such as the dates upon which plaintiffs moved to Wisconsin, acquired drivers' licenses, registered automobiles, registered to vote, and paid state income taxes. Plaintiffs Lister, Cooney and Turley further alleged that they were dependent upon the earnings of their wives, who were full-time employees of Wisconsin employers. In a part of the amended complaint that became important in the district court's January 1972 order, plaintiffs explained that Cooney had applied for resident status to the Registrar, Residency Examiner and "Committee for resident status" in January of 1971, that Thiel had done so in August and Lister in September of that same year and that Turley had not applied because he viewed such an application as a futile exercise. As to the constitutional issues involved, the amended complaint added the contention that Section 36.16 "granted exemptions from nonresident tuition to nonresidents while denying resident status to plaintiffs * * * ," apparently in reference to sections of the statute such as (1)(ab) and (4), which exempt from nonresident tuition members of the armed forces and certain athletes.

On December 3, 1971, defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction, lack of personal jurisdiction and failure to state a claim upon which relief could be granted. Reasoning that no case or controversy existed as to the semesters for which a plaintiff failed to apply to the University officials for an exemption, in an opinion and order on January 24, 1972, the district court dismissed claims for damages for those semesters. ² Also involved in the January 24 opinion and its subsequent reconsideration (but no longer pivotal issues on this appeal) were plaintiffs' requests for an interlocutory injunction, for summary judgment and for the convening of a three-judge court, and the district court's further inquiry into whether subject matter jurisdiction was lacking because of an insufficient amount in controversy. ³

By December of 1972, three of the four named plaintiffs had been granted resident status for their remaining semesters; therefore pursuant to a stipulation and order granting leave for filing they filed a second amended complaint. That pleading added two reasons why Section 36.16 was unconstitutional: first, it asserted that the language in subsection (3) excluding from resident tuition those in Wisconsin "principally to obtain an education" was vague, created an impermissible classification and interfered with the right to travel; next it added that the Section had been administered in an arbitrary and irrational manner, without objective standards or adequate reasons for refusals.

Shortly after the second amended complaint was filed, plaintiffs moved for partial summary judgment and defendants responded with a motion to dismiss and a motion to stay further proceedings. This motion to stay initially was premised on the existence of two pending state court claims similar to those in plaintiffs' second amended complaint. In granting the motion to stay in an opinion and order on July 11, 1973, however, the Court assumed that there were no state court actions pending ⁴ but concluded that Pullman abstention was appropriate because plaintiffs' constitutional claims could be substantially altered or obviated altogether if the state court resolved two issues of state law: "whether the statute creates an irrebuttable presumption against resident classification for students coming to Wisconsin principally for their education and whether the statute authorizes different treatment for males married to female residents than for females married to male residents" (Mem. op. 11). The district court retained jurisdiction of the action pending resolution in state court of the assertedly unclear issues of state law. ⁵

Rather than appealing this order, plaintiffs commenced an action in the Circuit Court for Dane County, Wisconsin, against the Board of Regents and Thomas H. Hoover, Registrar at the Madison campus. The complaint, filed in September 1973, sought declaratory relief and a refund of the nonresident tuition previously paid. ⁶ Defendants demurred on two grounds, the significant ground for this appeal being that "the court lacks jurisdiction over the subject matter in that the plaintiffs have not followed the dictates of Section 285.01 regarding an action for debt against a state agency." Although plaintiffs contend that the Circuit Court for Dane County in the nonresident tuition context had declined to read the statute in that manner, defendants argued that Section 285.01 ⁷ requires that apart from any appeal to University officials a claim must be made to the state legislature before an action can be brought against the state. See, e. g., Trempeleau County v. State, 260 Wis. 602, 51 N.W.2d 499 (1952). On May 3, 1974, the Circuit Court accepted defendants' contention and dismissed plaintiffs' state complaint.

Based on that dismissal and a December 21, 1973, opinion by the Wisconsin Supreme Court in Hancock v. Regents of University of Wisconsin, 61 Wis.2d 484, 213 N.W.2d 45, plaintiffs filed a motion in the federal court on May 10, 1974, requesting the district judge to vacate his stay order. The motion reasoned first that as a result of the Circuit Court's dismissal plaintiffs no longer had a speedy means of construing Section 36.16 in state court because it would be necessary to appeal the dismissal and then litigate the merits after remand. Next, plaintiffs argued that Hancock, which involved a law student's attempt on similar facts to recover his second and third year nonresident tuition, offered sufficient clarification of the meaning of Section 36.16 to make abstention no longer necessary. ⁸

That motion was still pending before the district judge almost two years later when plaintiffs' appeal of the dismissal of their state court action was decided by the Wisconsin Supreme Court. In Lister v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610, the Supreme Court affirmed the dismissal of the complaint, ruling first that the damage claim against the state was barred because of plaintiffs' failures to make claims to the legislature. ⁹ Next it reasoned that it should not rule on plaintiffs' request for declaratory relief because "the only consequence" of such a ruling would be its effect on the fruitless damage claim. 72 Wis.2d at 308, 240 N.W.2d 610. In refusing to rule on the request for a declaratory judgment, the Court explicitly noted the district court's stay order and admitted that despite the various jurisdictional impediments, it had "inherent authority" to grant declaratory relief. Id. at 309, 240 N.W.2d 610. It declined to do so, however, noting that Section 36.16 had been repealed during this litigation in 1973 ¹⁰ and reasoning that the issue therefore was no longer of sufficient public importance to justify a ruling.

In June 1976, plaintiffs presented the district court with the Lister opinion and again moved that the abstention order be vacated. In addition to the arguments previously asserted in their May 10, 1974, motion, plaintiffs emphasized the state court's refusal to construe the statute, the burdensomeness of...