Jackson v. Benson

255 Wis.2d 24

2002 WI 90

647 N.W.2d 815

Warner JACKSON, Jennifer Evans, Wendell Harris, The Reverend Andrew Kennedy, Rabbi Isaac Serotta, Ceil Ann Libber, Father Thomas J. Mueller, Reverend John N. Gregg, Diane Brewer, Colleen Beaman, Mary Morris, Penny Morse, Kathleen Jones and Philip Jones, Plaintiffs-Respondents, v. John T. BENSON, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-Appellants-Petitioners, Marquelle MILLER, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-Defendants-Appellants, PARENTS FOR SCHOOL CHOICE, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants-Petitioners.

MILWAUKEE TEACHERS' EDUCATION ASSOCIATION, by its President, M. Charles Howard, Michael Lengyel, Donald Lucier, Tracy Adams, Milwaukee Public Schools Administrators and Supervisors Council, Inc., by its Executive Director, Carl A. Gobel, People for the American Way, by its Executive Vice President and Legal Director, Elliott M. Minceberg, John Drew, Susan Endress, Richard Riley, Jeanette Robertson, Vincent Knox, Bertha Zamudio, James Johnson, Robert Ullman and Sally F. Mills, Plaintiffs-Respondents, v. John T. BENSON, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-Appellants-Petitioners, Marquelle MILLER, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-Defendants-Appellants, PARENTS FOR SCHOOL CHOICE, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants-Petitioners.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Felmers O. Chaney, Lois Parker, on behalf of herself and her minor child, Rashaan Hobbs, Derrick D. Scott, on behalf of himself and his minor children, Deresia C.A. Scott and Desmond L.J. Scott, Constance J. Cherry, on behalf of herself and her minor children, Monique J. Branch, Monica S. Branch, and William A. Branch, Plaintiffs-Respondents, v. John T. BENSON, Superintendent of Public Instruction of Wisconsin, in his official capacity, Defendant-Appellant.

No. 97-0270.

Supreme Court of Wisconsin.

Decided July 9, 2002.

¶ 1. PER CURIAM.

Respondents, Carl Gobel, Warner Jackson, Father Thomas Mueller, and Wendell Harris, and Attorney Ed Garvey and the law firm of Garvey, Stoddard, S.C. move the court for reconsideration of Part II of its opinion in Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 681, 639 N.W.2d 545,¹ finding the motion to vacate the court's 1998 decision in the case to be frivolous and remanding the matter to the Dane County Circuit Court for a determination of the amount of reasonable attorney fees and costs.

[1]

¶ 2. Respondents Gobel, Jackson, Mueller and Harris have also filed a separate motion to modify the sanctions order to remove them from the obligation to pay any sanctions which might ultimately be imposed. The State of Wisconsin has expressly indicated it does not oppose a modification of the sanctions order to exclude the individual respondents from any obligation to pay sanctions, and no party has objected to such a modification.

¶ 3. The motion to modify the sanctions order to remove respondents Gobel, Jackson, Mueller and Harris from any obligation to pay sanctions is granted.

¶ 4. The motion for reconsideration of Part II of this court's opinion, which found the motion to vacate frivolous and remanded the matter to the Dane County Circuit Court for a determination of the amount of reasonable attorney fees and costs, is denied without costs.

¶ 5. The dissent deserves some response. We all agree, including the dissenting justice, that "[t]he respondent's inordinate delay in filing the motion to vacate mocks the fundamental and vital principle of finality, which is essential to the operation of a society governed by law." Jackson v. Benson, 2002 WI 14, ¶ 22, 249 Wis. 2d 681, 639 N.W.2d 545. (Emphasis added.) Accordingly, four of the five members sitting on this case found the respondent's motion frivolous and awarded fees, costs, and attorney fees.

[2]

¶ 6. Both Wis. Stat. § 809.25(3)(a) and § 814.025(1) are mandatory. See § 809.25(3)(a) ("If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees and reasonable attorney fees under this section."); § 814.025 ("If an action . . . is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees."); see also Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 576, 597 N.W.2d 744 (1999); Sommer v. Carr, 95 Wis. 2d 651, 653-54, 291 N.W.2d 301 (Ct. App. 1980),rev'd on other grounds,99 Wis. 2d 789, 299 N.W.2d 856 (1981). Every single reported case in the last 20 years involving a finding of frivolousness has resulted in the award of attorney fees and costs. We have searched for any case involving a finding of frivolousness in which attorney fees and costs were not awarded. We have found none. See, e.g., Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 840-42, 501 N.W.2d 1 (1993); Elmakias v. Wayda, 228 Wis. 2d 312, 318-23, 596 N.W.2d 869 (Ct. App. 1999); Chase Lumber & Fuel Co., Inc. v. Chase, 228 Wis. 2d 179, 206-10, 596 N.W.2d 840 (Ct. App. 1999); Gardner v. Gardner, 190 Wis. 2d 216, 248-51, 527 N.W.2d 701 (Ct. App. 1994); Schapiro v. Sec. Sav. & Loan, 149 Wis. 2d 176, 187-89, 441 N.W.2d 241 (Ct. App. 1989); Tracy v. DOR, 133 Wis. 2d 151, 162-63, 394 N.W.2d 756 (Ct. App. 1986); Wengerd v. Rinehart, 114 Wis. 2d 575, 580-84, 338 N.W.2d 861 (Ct. App. 1983).

¶ 7. JON P. WILCOX, ANN WALSH BRADLEY, and DIANE S. SYKES, JJ., did not participate.

¶ 8. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting).

I joined Part I of the court's decision of February 19, 2002, denying the petitioners'² motion to vacate this court's decision in Jackson v. Benson.³Jackson upheld the constitutionality of the "school voucher" law. The petitioners do not challenge this part of the decision.

¶ 9. I dissented from Part II of the February 19, 2002, decision. That decision sanctioned the petitioners for bringing the motion to vacate, which the court declared frivolous. The petitioners seek reconsideration of Part II of the decision. The majority denies reconsideration.

¶ 10. I continue to maintain that the court has erred in declaring the petitioners' motion frivolous and in imposing sanctions on the petitioners in this case.⁴ I have two reasons for dissenting here:

¶ 11. First, the court's decision declaring the petitioners' motion frivolous and imposing sanctions is erroneous on its face as a matter of law. The court has failed to justify the declaration of frivolousness and the imposition of sanctions as required by either Wis. Stat. § 809.25(3)(c) or § 802.05(1)(a).

¶ 12. Second, the declaration of frivolousness and the imposition of sanctions in this case undermines confidence in the legitimacy of this court's decisionmaking process and the integrity of this court as an institution.

I

¶ 13. Statutes, rules, and case law govern the finding of frivolousness and the imposition of sanctions. This court did not adhere to the applicable law in the present case.

¶ 14. The court addressed the issue of frivolousness and sanctions in the final two paragraphs of its decision. I have appended the entire two-paragraph opinion on frivolousness and sanctions to this dissent so readers can easily judge for themselves the court's failure to make findings or present any reasoning or justification for its finding of frivolousness or the imposition of sanctions (see Appendix A).

¶ 15. In its finding of frivolousness and in its imposition of sanctions, the court relies on Wis. Stat. § 809.25(3)(c), as the State's private counsel urged.⁵ As a condition to imposing sanctions under § 809.25(3)(c), this court must make one of two findings:

(1) The motion was filed, used, or continued "in bad faith, solely for purposes of harassing or maliciously injuring another";⁶ or (2) The party or party's attorney knew, or should have known, that the motion "was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."⁷

¶ 16. The court made neither of these findings before it imposed sanctions. Yet, "as this court has emphasized, the [frivolous claims] statute does not allow the . . . [court] to conclude frivolousness or lack of it without findings stating which statutory criteria were present . . . ."⁸

¶ 17. The court never found that the motion was filed, used, or continued "in bad faith, solely for purposes of harassing or maliciously injuring another" under Wis. Stat. § 809.25(3)(c)1. Rather, this court merely stated, in a conclusory fashion, that on the basis of the untimeliness of the motion and its coming "shortly before oral argument in the United States Supreme Court," the "only reasonable inference" is that the motion "was filed in bad faith, for improper purposes, to undermine the public's confidence in the legitimacy of this court's decision and the integrity of this court as an institution."⁹

¶ 18. This court could not make the first required finding because the record does not contain sufficient facts to justify such a finding of subjective intent.¹⁰ No basis exists in the record to conclude that the "sole" basis of the petitioners' motion was to harass Justice Wilcox, any other justice, or the court.

¶ 19. The court's...