Terry v. Kolski, No. 75-249

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHEFFERNAN; Ruggero J. Aldisert; Friendly; ROBERT W. HANSEN
Citation78 Wis.2d 475,254 N.W.2d 704
Decision Date14 June 1977
Docket NumberNo. 75-249
PartiesLouis E. TERRY, Appellant, v. Ron KOLSKI, Respondent.

Page 704

254 N.W.2d 704
78 Wis.2d 475
Louis E. TERRY, Appellant,
v.
Ron KOLSKI, Respondent.
No. 75-249.
Supreme Court of Wisconsin.
Argued March 2, 1977.
Decided June 14, 1977.

[78 Wis.2d 479] Patricia D. McMahon, Milwaukee Legal Services, Inc., Milwaukee, for appellant.

Gerard Paradowski, Asst. Corp. Counsel, Milwaukee (argued), with whom on the brief was Robert P. Russell, Corp. Counsel, Milwaukee, for respondent.

HEFFERNAN, Justice.

This appeal raises the question of whether courts of the State of Wisconsin have jurisdiction to hear and decide a cause of action based upon the Federal Civil Rights Act, 42 U.S.C. sec. 1983. We conclude that Wisconsin courts have such jurisdiction; and, accordingly, we reverse the order of the circuit court which affirmed the dismissal of the plaintiff's complaint and direct that the cause be remanded to the county court for the exercise of jurisdiction.

[78 Wis.2d 480] The plaintiff, Louis E. Terry, brought a small claims action in the County Court of

Page 705

Milwaukee county against Milwaukee County Deputy Sheriff Ron Kolski. He claimed that Kolski and others, during an inspection of the cells in the Milwaukee County Jail, where Terry was confined, seized and destroyed plaintiff's personal property, a copy of Oui and of Playboy magazines. In his complaint, Terry alleged that the acts were performed under the color of state law and deprived him of his First Amendment rights under the federal constitution. He asked for damages in the amount of $500, the monetary limit for small claims actions brought in the State of Wisconsin. Sec. 299.01(4), Stats., 1973.

The county court judge returned the complaint to the plaintiff on the grounds that it did not state a cause of action cognizable under state law.

On appeal to the circuit court, the county court's dismissal was affirmed. The circuit court judge correctly saw the proposed cause of action as an attempt to invoke the jurisdiction of the Wisconsin courts under 42 U.S.C. sec. 1983, the Civil Rights Act. The circuit court concluded that sec. 1983 afforded a federal right, which could be vindicated only by a federal remedy in the federal courts.

Upon rehearing in the circuit court, the judge reaffirmed his dismissal, but modified his original position by concluding that a sec. 1983 action would be cognizable in a state court only where it was pendent to a state action. Because this was an independent action based solely on sec. 1983, he held that the courts of Wisconsin were without jurisdiction. In addition, he held that, in no event, whether the federal civil rights claim were pendent or independent of a cognizable state claim, would the small claims court have jurisdiction.

The plaintiff appeals from the order which affirmed the county court's dismissal of the complaint. All parties [78 Wis.2d 481] to this appeal agree that the complaint purports to state a cause of action based on 42 U.S.C. sec. 1983.

The defendant Kolski, represented by the corporation counsel of Milwaukee county, now specifically concedes on appeal that circuit courts of the State of Wisconsin have concurrent jurisdiction with federal district courts of an action brought under 42 U.S.C. sec. 1983, but he contends, irrespective of whether there is concurrent jurisdiction in a state court system generally, the claim is not within the small claims jurisdiction of the county court, where Terry brought his action.

Under ordinary circumstances, this concession by counsel would be dispositive of the claim, for we see no merit in the contention that the pertinent "jurisdiction" 1 of the small claims court, other than in respect to the monetary limit on small claims procedure, differs from that of the circuit court. The order and the decision of the circuit judge was, however, based upon a broader concept that the jurisdiction of an independent action based on sec. 1983 is exclusively vested in the federal court system and it is this order which has been appealed.

Because the order of the circuit court poses an important question of public policy and of the jurisdiction of state courts, we decline to dispose of the case on the concession of Kolski's counsel. Moreover, a minority of this court asserts that sec. 1983 affords only a federal remedy, to be pursued exclusively in the federal courts.

[78 Wis.2d 482] The underlying question is, therefore, whether the courts of the State of Wisconsin have concurrent jurisdiction with the federal courts to hear and decide a question based upon a cause of action created by 42 U.S.C. sec. 1983.

For the resolution of this question, two considerations are pertinent: The nature of our federal system of government and the determination of whether the Congress by statute vested exclusive jurisdiction of sec. 1983 actions in the federal courts.

State judges, like judges of the United States, take an oath to support the Constitution of the United States. Article VI,

Page 706

paragraph 2, of the United States Constitution, provides in part:

"This constitution and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

This constitutional provision not only permits state courts to exercise jurisdiction in enforcement of federal laws, to the extent permitted by Congress, but mandates that federal causes of action and federal rights, unless exclusively reserved to the federal courts, must be enforced by state courts. In The Federalist Papers No. 82, Hamilton wrote:

"(T)he national and State systems are to be regarded as One Whole. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions." Beard, The Enduring Federalist, at 355.

[78 Wis.2d 483] Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 507-08, 82 S.Ct. 519, 522, 7 L.Ed.2d 483 (1962), pointed out that:

"We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule."

Sec. 262.04, Stats., now sec. 801.04(1), describes the jurisdictional requirements for judgments against persons, status, and things in respect to all courts of the State of Wisconsin. It states in part:

"Jurisdiction of the subject matter is conferred by the constitution and statutes of this state and by statutes of the United States . . . ." (Emphasis supplied.)

In Vogt v. Nelson, 69 Wis.2d 125, 127-28, 230 N.W.2d 123, 124 (1975), this court stated:

"The original jurisdiction of the circuit court includes the power to hear and determine all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court.4 State courts are bound to entertain actions to enforce liabilities created by federal law unless prohibited by an act of Congress.5

In Kaski v. First Federal Savings & Loan Association of Madison, 72 Wis.2d 132, 142, 240 N.W.2d 367, 373 (1976), we said, referring to Charles Dowd Box Co., supra :

"We have followed that position in the courts of this state and have held generally that, when there is no express provision excluding jurisdiction or when there is no incompatability in allowing concurrent jurisdiction, the courts of Wisconsin will exercise subject-matter jurisdiction and apply the federal law."

[78 Wis.2d 484] In Kaski, we cited, at page 142, 240 N.W.2d 367, numerous Wisconsin cases in which this court exercised subject matter jurisdiction and applied the federal law.

This court, therefore, has uniformly followed the reasoning that state courts have a constitutional duty to enforce federal substantive rights in the state forum. The uniform holdings of this court are consistent with the mandates of the United States Supreme Court in this respect.

The United States Supreme Court's position was recapitulated in Testa v. Katt, 330 U.S. 386, 390, 67 S.Ct. 810, 91 L.Ed. 967 (1947). Therein it referred to Claflin v. Houseman, supra. In reference to Claflin, it stated:

"It repudiated the assumption that federal laws can be considered by the states as though they were laws emanating from a foreign sovereign. Its teaching is that the Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people, 'any Thing in the

Page 707

Constitution or Laws of any State to the Contrary notwithstanding." It asserted that the obligation of states to enforce these federal laws is not lessened by reason of the form in which they are cast or the remedy which they provide. And the court stated that 'If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court.' " (at 390-91, 67 S.Ct. at 813).

The ordinary rule, therefore, mandated upon the states is that they and their courts shall enforce the laws of Congress. Only if the Congress has exclusively reserved jurisdiction to the federal courts are state courts without power to act.

The American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts (1969), [78 Wis.2d 485] at 478, lists classes of cases in which suit can only be brought in a federal court and in respect to which litigants have no alternate choice of a state forum. The classes of cases listed are few in number and do not include cases which are brought to vindicate...

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44 practice notes
  • Kristensen v. Strinden, No. 10422
    • United States
    • United States State Supreme Court of North Dakota
    • December 21, 1983
    ...Saunders v. Creamer, 11 Pa.Commw. 160, 312 A.2d 454 (1973), vacated on other grounds, 464 Pa. 2, 345 A.2d 702 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 In addition, we fail to see how public policy would be served by barring access to the courts of this State to its citizens wh......
  • Thiboutot v. State
    • United States
    • Supreme Judicial Court of Maine (US)
    • August 31, 1979
    ...jurisdiction to entertain such actions. E. g., Brown v. Pitchess, 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). Contra, Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). Adjudicating federal claims against state govern......
  • American Motors Corp. v. Department of Industry, Labor and Human Relations, No. 77-703
    • United States
    • United States State Supreme Court of Wisconsin
    • April 29, 1981
    ...is inappropriate. While it is true that this court ordinarily has the duty to enforce federal causes of action (see Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 [101 Wis.2d 353] (1977)), that is not true in respect to the Federal Civil Rights Act. The relationship between the Federal Civi......
  • Shaw v. Leatherberry, No. 2003AP2316.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 6, 2005
    ...Supreme Court, this court had held that Wisconsin state courts have jurisdiction to decide actions based upon § 1983. Terry v. Kolski, 78 Wis.2d 475, 479, 254 N.W.2d 704 (1977). Indeed, "there are no longer any state court systems that refuse to hear § 1983 cases[,]" and "[s]tate courts hav......
  • Request a trial to view additional results
44 cases
  • Kristensen v. Strinden, No. 10422
    • United States
    • United States State Supreme Court of North Dakota
    • December 21, 1983
    ...Saunders v. Creamer, 11 Pa.Commw. 160, 312 A.2d 454 (1973), vacated on other grounds, 464 Pa. 2, 345 A.2d 702 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 In addition, we fail to see how public policy would be served by barring access to the courts of this State to its citizens wh......
  • Thiboutot v. State
    • United States
    • Supreme Judicial Court of Maine (US)
    • August 31, 1979
    ...jurisdiction to entertain such actions. E. g., Brown v. Pitchess, 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). Contra, Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). Adjudicating federal claims against state govern......
  • American Motors Corp. v. Department of Industry, Labor and Human Relations, No. 77-703
    • United States
    • United States State Supreme Court of Wisconsin
    • April 29, 1981
    ...is inappropriate. While it is true that this court ordinarily has the duty to enforce federal causes of action (see Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 [101 Wis.2d 353] (1977)), that is not true in respect to the Federal Civil Rights Act. The relationship between the Federal Civi......
  • Shaw v. Leatherberry, No. 2003AP2316.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 6, 2005
    ...Supreme Court, this court had held that Wisconsin state courts have jurisdiction to decide actions based upon § 1983. Terry v. Kolski, 78 Wis.2d 475, 479, 254 N.W.2d 704 (1977). Indeed, "there are no longer any state court systems that refuse to hear § 1983 cases[,]" and "[s]tate courts hav......
  • Request a trial to view additional results

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