Riedy v. Sperry

• Decision Date: 02 May 1978
• Docket Number: No. 75-863,75-863
• Citation: 83 Wis.2d 158,265 N.W.2d 475
• Parties: Mrs. Mary E. RIEDY, Appellant, v. Richard D. SPERRY and Charles Johnson, Respondents.
• Court: Wisconsin Supreme Court

Page 475

265 N.W.2d 475

83 Wis.2d 158

Mrs. Mary E. RIEDY, Appellant, v. Richard D. SPERRY and Charles Johnson, Respondents.

No. 75-863.

Supreme Court of Wisconsin.

Argued March 7, 1978.

Decided May 2, 1978.

Raymond E. Krek, Jefferson (argued), for appellant; and Danforth, McKenna & Krek, S. C., Jefferson, on brief.

James C. Alexander, Madison (argued), for respondents; Wightman, Thurow & Sauthoff, Madison, on brief.

HEFFERNAN, Justice.

This appeal arises out of a trial court order which sustained a demurrer to the plaintiff's complaint which alleged that she had been deprived of her constitutional rights by the actions of municipal officers acting under the color of state law.

The complaint, in effect, although not explicitly, alleges a cause of action secured by the Federal Civil Rights Act, particularly 42 U.S.C. sec. 1983. At the time of the commencement of this action in October 1975, this court had not yet affirmed the jurisdiction of the courts of the State of Wisconsin to entertain civil rights actions based upon 42 U.S.C. sec. 1983. Such jurisdiction was recognized in Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). Accordingly, if the plaintiff's complaint in the instant action sets forth sufficient facts to allege a cause of action under 42 U.S.C. sec. 1983, it is within the jurisdiction of the Wisconsin courts to proceed. We conclude that the plaintiff's complaint states a cause of action under sec. 1983, because it alleges conduct under color of state law which, without due process of law, deprived the plaintiff of property, and arguably of liberty interests, protected by the Fourteenth Amendment.

We conclude, moreover, that the trial judge used an improper standard in testing the complaint on demurrer, because he, in effect, hypothesized the plaintiff's inability to factually support the allegations of the complaint and he improperly considered the effect of possible affirmative defenses that had not been pleaded. Accordingly, the demurrer was erroneously sustained and the judgment dismissing the complaint must be reversed.

The complaint alleges that the plaintiff, Mary E. Riedy, operated a nursery school for children in the City of Jefferson and that the nursery school was licensed by the Department of Health and Social Services of the State of Wisconsin. It is acknowledged in the complaint that the license was for a nursery school located at 324 Sanborn Street in the City of Jefferson but, at the times material to the complaint, the plaintiff was operating her school at another location in the City of Jefferson.

She also alleged that she had "fulfilled the necessary custom and law for application for amendment of her said license" for the new address.

She further alleged that the defendant, Richard D. Sperry, was the city attorney for the City of Jefferson and that Charles Johnson was the chief of police for that city, and that each of them, under color of law, entered her nursery school on two occasions demanding that the school be closed. The first such demand was made on September 24, 1975.

It is also alleged that on October 7, 1975, the plaintiff received a letter from the Wisconsin Department of Health and Social Services which demonstrated, in the words of the complaint, "a written indication that she was duly and properly fulfilling the necessary custom in law for application for amendment of her said license . . . ."

On October 16, 1975, it is alleged that the defendants Sperry and Johnson again entered the plaintiff's school and demanded that the school be closed. On the following day, the plaintiff alleges, she received a letter from the Department of Health and Social Services suspending her right to operate the day care center. She alleges that the letter of suspension was "precipitated by malicious action" of defendant Sperry.

She alleges that the conduct of both defendants interfered with her right to carry on her business, that their conduct was under color of law, that she was afforded no prior hearing, and that she was denied due process of law.

She additionally alleges that Sperry and Johnson conspired to prevent her from exercising her rights and privileges guaranteed by the Constitution and laws of the United States and the State of Wisconsin. She characterizes these rights as her right to due process and her property right to pursue her occupation and profession. She alleges a loss of earnings and profits from her business and alleges that she has suffered, and will suffer, substantial damage to her reputation in the community.

The state law under whose color the defendants allegedly acted was sec. 176.05(9m), Stats., which provides that:

"(a) No retail 'Class A' or 'Class B' license shall be issued for premises the main entrance of which is less than 300 feet from the main entrance of any established public school, parochial school, hospital or church. . . ."

This particular statute was not set forth by number in the complaint, but its general provisions were referred to therein. It was made clear at oral argument, however, that it was upon this statute that reliance was placed by the defendants. We take judicial notice of this statute. ¹

In the trial judge's decision on the demurrer, the following statement appears:

"Reduced to bare bones ( ) duty, breach of duty and resulting damages ( ) it appears that defendants had a duty under law not to interfere with plaintiff's right to operate a licensed nursery school; defendants also had a duty to enforce the statutes and ordinances within the city while acting as city attorney and chief of police . . . ."

This information of duty, breach, and damages is more appropriate to a negligent tort than to an intentional one; and, accordingly, we conclude that the trial judge's analysis, in view of the intentional conduct of the defendants, was inappropriate to the facts set forth in the complaint. We point out, however, that the majority opinion in Procunier v. Navarette, --- U.S. ----, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), failed to address the question of whether sec. 1983 affords a remedy for the negligent deprivation of constitutional rights. See n. 14, 98 S.Ct. at 855. We do not, however, foreclose the possibility that sec. 1983 does afford a remedy for the negligent deprivation of constitutional rights. The question is not presented in this appeal.

The necessary elements of a sec. 1983 action have recently been set forth in Paul v. Davis, 424 U.S. 693, 696-97, 96 S.Ct. 1155, 1158, 47 L.Ed.2d 405 (1976). Therein the court stated:

" . . . to establish a claim cognizable under sec. 1983 he had to show that petitioners (persons acting under color of state law) had deprived him of a right secured by the Constitution of the United States, and that any such deprivation was achieved under color of law."

The plaintiff in this action has set forth the minimal allegations for stating a cause of action under sec. 1983. For the purposes of the ruling on demurrer, it must be assumed that the allegation that the defendants acted under color of state law is a verity. The constitutional right of which the plaintiff claims she was deprived was her property right to continue to operate her nursery school unless that right was taken from her by procedures that comported with due process.

Whether a right is a property right afforded protection by the Constitution of the United States is primarily dependent upon whether the right or interest has been recognized and protected by state law. In this case, the plaintiff alleges that her right to operate the nursery school was secured by license issued by the state. She claims, accordingly, that her right arose out of a status accorded, recognized, and protected by the laws of the State of Wisconsin.

The constitutional protection afforded to rights recognized by state law is discussed in Paul v. Davis, supra, at 710-11, 96 S.Ct. at 1165:

"It is apparent from our decisions that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either 'liberty' or 'property' as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law, and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), for example, the State by issuing drivers' licenses recognized in its citizens a right to operate a vehicle on the highways of the State. The Court held that the State could not withdraw this right without giving petitioner due process. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the State afforded parolees the right to remain at liberty as long as the conditions of their parole were not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment's guarantee of due process of law required certain procedural safeguards."

It is true that in this case the plaintiff acknowledged that the license which conferred the protected status was for a location different than that at which she was operating when the conduct of the defendants occurred. Nevertheless, she asserted that she had fulfilled the state law in respect to making application to have her license applicable to her new address. Accordingly, in the language of Paul v. Davis, at 711, 96 S.Ct. at 1165, she alleges "as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished."

The mere allegation, however, that she was deprived of constitutional rights under color of law does not resolve the question whether she is, on the merits, entitled to relief either by injunction or...