Waukesha Memorial Hospital, Inc. v. Baird

• Decision Date: 03 February 1970
• Docket Number: No. 57,57
• Citation: 45 Wis.2d 629,173 N.W.2d 700
• Parties: WAUKESHA MEMORIAL HOSPITAL, INC., a Wis. corp., et al., Respondents, v. Robert L. BAIRD, Sheriff of Waukesha Co., et al., Defendants, Capt. Donald J. Kennelly, Commanding Officer, Dist. #2, Wis. State Patrol, Waukesha Co., Appellant.
• Court: Wisconsin Supreme Court

Page 700

173 N.W.2d 700

45 Wis.2d 629

WAUKESHA MEMORIAL HOSPITAL, INC., a Wis. corp., et al., Respondents, v. Robert L. BAIRD, Sheriff of Waukesha Co., et al., Defendants Capt. Donald J. Kennelly, Commanding Officer, Dist. #2, Wis State Patrol, Waukesha Co., Appellant.

No. 57.

Supreme Court of Wisconsin.

Feb. 3, 1970.

This is an appeal from an order overruling a demurrer to a complaint asking for a declaratory judgment. The Waukesha Memorial Hospital, Inc., the medical staff of that hospital, and H. A. Gantz, M.D., as a representative of the medical staff members of the hospital, have brought an action against representative police officers in Waukesha county, including the sheriff, the police chiefs of Waukesha, New Berlin, and Brookfield, and against Robert L. Baird as a representative of the class of all law enforcement officers of Waukesha county. In addition, Captain Donald J. Kennelly, Commanding Officer of the Wisconsin State Patrol in Waukesha county, has been joined as a defendant representing the State Highway Patrol officers. Kennelly, as a representative of all the defendants, has demurred to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action for declaratory relief. The demurrer was overruled.

In the complaint the plaintiffs allege that the Attorney General of the State of Wisconsin and the District Attorney of Waukesha county have informed law enforcement agencies and officers in Waukesha county that they have the right to order physicians and their employees and employees of hospitals to take blood specimens from persons for the purpose of making tests to determine the alcoholic content of their blood to aid in the prosecution for driving under the influence of intoxicating liquors, pursuant to sec. 885.235, Stats. They state that they believe law enforcement officers have been directed to do so whether or not the individual objects. The complaint states that on March 27, 1968, an officer of the city of Brookfield brought a suspect to the Waukesha Memorial Hospital and ordered a staff doctor to take a blood specimen and that the individual demanded that the doctor not take this sample. Thereupon the police officer threatened prosecution of the doctor if he should refuse to obey the order to take the blood specimen. The doctor then obeyed the order and took the specimen. On the following day the complaint in this action was brought on behalf of the plaintiffs. They further allege that this is but the first of a series of episodes that will ensue, that continued orders to take the blood of objecting individuals will continue, and that the plaintiffs will be confronted with further similar demands by police officers.

Plaintiffs contend that the orders of police officers are without authority and that 'no Statutes exist authorizing said obtaining of a blood specimen against the will of the person, or holding the plaintiffs harmless from any liability as a result of so doing.'

The plaintiffs allege further that they are 'most probably exposing themselves to great harm and losses and damages unless a final legal determination is made as to the rights of the law enforcement agencies and the individual from whom a blood specimen is to be taken, and the rights of medical doctors and the hospitals in such circumstances.' They claim that irreparable harm will ensue if their rights are not declared and that a permanent injunction is the only protection for the plaintiffs. They ask for a determination 'to clarify the constitutional rights of the plaintiffs.' Their prayer for relief asks that the circuit court issue a judgment against the defendants 'Determining the authority of the said defendants to order the taking of blood specimens and under what circumstances and under what protection the plaintiffs have in obeying the said order * * *.' They allege that the judgment as prayed for 'will terminate the controversy and remove uncertainty.'

From the order overruling the demurrer the defendants have appealed.

Robert W. Warren, Atty. Gen., Sverre O. Tinglum, Asst. Atty. Gen., Madison, for appellant.

Lowry, Hunter & Tikalsky, Waukesha, for respondents.

HEFFERNAN, Justice.

When there is a demurrer to a complaint for a declaratory judgment, the question presented initially is not whether the complaint so states a meritorious cause of action that the plaintiffs should prevail on the merits if, in fact, the facts alleged are true, but rather it poses the question of whether the controversy is one which should be considered and heard on the merits. An order overruling the demurrer and holding that a proper cause of action for declaratory judgment exists permits the exploration of the merits. The question raised on appeal is simply whether the declaratory judgment device may be properly used to adjudicate the plaintiffs' claim.

This action is brought under sec. 269.56, Stats., the declaratory judgments act. This court in State ex rel. La Follette v. Dammann (1936), 220 Wis. 17, 22, 264 N.W. 627, 103 A.L.R. 1089, adopted Prof. Edwin Borchard's statement of four conditions precedent to entertain a declaratory judgment action.

'(1) (T)here must exist a justiciable controversy--that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it,

'(2) the controversy must be between persons whose interests are adverse,

'(3) the party seeking declaratory relief must have a legal interest in the controversy--that is to say, a legally protectible interest, and

'(4) the issue involved in the controversy must be ripe for judicial determination. Declaratory Judgments, Borchard, pp. 26--57.'

The court in that case stressed that it would not render merely advisory opinions and summarized the Borchard tests in the statement:

'Do the allegations of the complaint reveal a justiciable controversy between adverse interests in which the plaintiff has a legal or protectible interest which is now ripe for judicial determination?' (P. 22, 264 N.W. p. 629)

In the preface to Professor Borchard's second edition of his treatise on Declaratory Judgments, p. viii, he expressed some disappointment in the 'lack of social perspective' and the 'inhospitality of certain judges * * * to the simplification of procedure,' and he quotes with apparent approval Thurman Arnold's complaint of 'the inadequae service obtained from the courts by their insistence upon 'trial by combat. " He points out (p. ix) that the use of declaratory judgment 'with its speed, inexpensiveness and simplicity, its promotion of a civilized approach to judicial relief commends it. Trial by battle and its concommitant drains are replaced by an earnest but not necessarily embittered submission of legal differences for an adjudication carrying no coercive penalties.'

Borchard says in the preface to the first edition (appearing on page xiv of the second edition):

'Thus the declaratory action, in extending the opportunity for such judgments to all legal relations, inaugurated no startling novelty, but merely recognized that individual and social peace and security are promoted by removing clouds from legal relations whenever, by attack, challenge, or denial, they are placed in doubt and uncertainty. The action implies a recognition of the fact that the social equilibrium is disturbed not merely by an overt violation of private rights, but by a challenge which places them in doubt and uncertainty.

'This has required a broadening of the conception of 'cause of action' and of the view that the judicial process is merely a means of redress for committed physical 'wrongs.' It required an appreciation of the fact that harm is done and rights are jeopardized by mere dispute or challenge without any physical attack. The mere existence of a cloud, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims, the uncertainty or insecurity occasioned by new events--these phenomena constitute the operative facts, the cause for action which creates the 'right of action.' The court in rendering a judicial declaration of rights thus becomes an instrument not merely of curative but also of preventive justice.' Borchard, supra at p. xiv.

While most declaratory judgments have been brought in civil actions, it appears indisputable that declaratory relief should be available in a proper case where the complainant is concerned with his rights under the criminal statutes. See Declaratory Relief in the Criminal Law, Harvard Law Review, vol. 80, p. 1490 (1966--67).

In the instant case the complaining doctors and hospital asked for a declaration of their rights in respect to both the criminal and civil law. They desire resolution of the authority of police officers to order that a blood test be taken and their criminal liability if they refuse to obey the order, and a resolution of the question of their legal liability in tort in the event they take blood from a nonconsenting individual.

It is, of course, strongly engrafted in our law that one should not be convicted of a violation of an ex post facto law. The essence of the plaintiffs' complaint in respect to the allegedly threatened criminal violation is that they are not at the present time able to determine whether their refusal to obey an order will be unlawful. They fear that their refusal to perform what they consider to be an unlawful act may, at a later date, be determined to be the refusal to carry out a lawful order. It is accepted as an axiom of American constitutional law that failure to give a defendant fair warning of the consequences of his conduct, when such conduct is determined to be unlawful only after the fact, provides a constitutional defense.

Another hazard of not being able to know whether criminal penalties will apply as the result of a certain course of conduct is the danger that threats of prosecution may prevent the exercise of socially desirable...