C.L. v. Olson

C.L., Plaintiff-Appellant-Petitioner, Defendant, OLSON, L.

Donald HOHLSTEIN, Defendant-Respondent. Donald

Supreme Court April 1988.—Decided 1988. Argued March No. 85-1807. (Also reported 614.) in 422 N.W.2d the plaintiff-appellant-petitioner For there was a Robert Anker Christensen Christensen & by brief Kenney, Robert Anker argument Madison and oral Christensen. defendant-respondent

For the the cause was ar- Farwell, Daniel S. gued by general, assistant attorney Hanaway, brief was Donald J. with whom on the general. attorney CECI,

LOUIS J. J. This case is before the court on published review of a decision of the court of appeals1 affirming a decision of the circuit court for Bartell, Angela ordering Dane B. circuit county, judge, Olson, 224, 1C.L. v. 409 N.W.2d 156 summary judgment in defendant, favor of the Donald (Hohlstein). presented Hohlstein The issue for review appeals correctly is whether the court of determined parole agent Hohlstein is immune from negligent allegedly as a allowing officer for conduct in (Olson) parolee, Donald L. Olson to operate failing impose a motor or in vehicle to upon operation restrictions Olson’s of the vehicle. We appeals. affirm the decision of court of undisputed. The essential facts of this case are county 1979, Olson was convicted the Columbia 940.225(2)(e), (1979-80),2 circuit court under sec. Stats. having of had sexual contact and sexual intercourse ages with two individuals between the of 12 and years, he which was sentenced two of terms four concurrently. incidents, be served In both a vehicle had been involved in the abduction of the victims. parole April 23, 1982, was Olson placed released on supervision. under Hohlstein’s In accordance responsibilities with his under Admin. Code sec. 328.04(2)(d), provided HSS Hohlstein established and copy supervision. a of to Olson of rules Hohlstein granted permission operate Olson vehicles. The placed upon only operation restriction Olson’s parole required forth in vehicles set his rules and any operating equipped vehicle he was not be capable monitoring police, with a device fire or emergency communications. 16,1982,

On October had traveled from Olson his city city Madison, home in Columbus to the plaintiff, C.L., he where offered ride to the who had missed bus. Olson had stated that he drive would 940.225(2)(e) 2Chapter 308, laws of amended change years age age. years to 16 Capitol square plaintiff to the to connect with another transported plaintiff Instead, toward Co- bus. Olson sexually assaulted her. lumbus Olson convict- felony two in connection with his ed of counts assault plaintiff. complaint, plaintiff alleging The filed a agent permitted parole negligently Hohlstein Olson operate impose negligently motor vehicles or failed to upon operation restrictions his of vehicles. Defendant summary judgment Hohlstein moved for on the ground liability that he was immune from for his conduct as a officer because his action involved granted the exercise of discretion. trial court appeals motion. The court of affirmed the order of the agree trial court. We with the conclusion of the court appeals liability that Hohlstein is immune from analysis but, differs, to the extent that our we do not applied completely embrace the rationale the court appeals arriving at this result. reviewing granting summary judg- an order apply ment, we the same standards set forth under 802.08(2), Spring Stats., as do trial courts. Green Kersten, N.W.2d Farms complaint First, the court examines the determine whether a claim for relief has been stated. Only if Id. a claim has been stated does the court then pleadings, deposi- proceed to determine whether the interrogatories, tions, admissions, and any answers genuine issue as to affidavits demonstrate previously has material fact. Id. This court stated objection immunity, that, "The of an officer’s civil affecting as it does his substantive for dam- ages, properly presented by on the a demurrer ground complaint fails to state a cause of Regents, 282, 299, 2d action.” Lister v.Board (1976). Consequently, 240 N.W.2d 610 because we determine, below, for the reasons forth set activity Hohlstein was immune from alleged for the complaint, complaint we find that the upon granted fails to state a claim which relief be proceed and no further.3

Upon by parole, paroled release a individual legal custody Department in remains the of the of subject Health and Social Services and is to conditions parole. 57.06(3), and rules of Section Stats. The greater Wisconsin Administrative Code sets forth with particularity supervision the nature of the parolee which be must maintained:

"HSS 328.04 Field supervision. Parole probation supervision and a mechanism of attempt guide control and an offenders into socially appropriate ways living. Field are staff provide supervision individualized clients a goals manner with consistent and objectives of chapter. Specifically, this attempt field staff are to help the client be successfully reassimilated into community, help adjust cope the client to and living, crime, community with protect reduce and public. "(2) agent An depart- shall abide agent’s ment’s responsi- administrative rules. An upon receiving bilities a client control supervision shall include:

[*] ^{[*] [*]} "(d) Establishing supervision written rules of supplemental existing that are court-imposed or agree we appeals 3While with the decisionof court of granting the order court summary judgment trial proper, disagree finding we appeals with of the court that a C.L., claim for relief was stated. 140 Wis. 2d at 227. conditions, providing the client parole board them; copy with

"(e) Informing possible con- the client of abiding and condi- by the rules sequences of not supervision; tions

"(f) the conditions and rules of Explaining requirements imme- reporting supervision and the supervision field upon reception to diately understand; the client can manner ^{[*] [*] [*]} "(3) parole begins, probation an When develop to review or agent meet with a client shall specific rules and conditions of the client’s written supervision, or both.” parole particularized

Among the rules which are following, the administrative code is under the permission requires parolee "[o]btain the advance operate agent purchase, sell, trade, from an 328.04(3)(h). parole It is motor vehicle.” Section HSS negligent grant agent allegedly decision to Hohlstein’s operate permission the motor vehicle for to Olson responsible plaintiff Hohlstein which the seeks hold damages. would be immune for Whether Hohlstein negligence liability if were established from such operate granting permission the motor vehicle requires application principles of of a review and the immunity public employees. of officers and the immunity public of officers for certain acts

The capacities in their official derives from undertaken public Lister, 72 Wis. 2d at 299. The common law. grant support policy of considerations which immunity include:

708 "(1) danger influencing public of officers in the performance their by functions threat (2) lawsuit; the deterrent effect which the threat personal liability might have on those who are (3) considering entering public service; drain (4) by actions; valuable time caused such subjecting unfairness of personal officials to liabili- subordinates; ty the acts of their feeling procedures that the ballot and removal are more appropriate dealing methods with miscon- office.” Id. duct Recently, purpose scope of the doctrine of federal official under immunity state tort law was described Supreme United States Court as follows: provision

"The immunity rests on view that the threat will make federal officials unduly duties, in carrying timid out their official promoted and that effective Government will be if freed officials are of the costs of vexatious and Matteo, Barr damages often frivolous suits. See supra, [1959]; Doe v. U.S. McMillan, ^[564] at U.S. S.Ct. 306, 319, ^[1335] 93 S.Ct. at 2028, 36 2d 912 L.Ed. This Court however, always recognized, has im- official munity great at a injured party comes cost. An an with otherwise meritorious tort claim is denied compensation simply because he had the misfor- by tune v. injured to be a federal official.” Westfall Erwin, (1988).4 108 S. Ct. 583 (Second) Torts, 895D, also Restatement of 4See comment b (1979): immunity "The basis of the has been not so much a to desire

protect erring recognition an officer as it has been a of the need of preserving independence of action without deterrence or intimi-

709 in is that acknowledged rule a Wisconsin general The personal is immune from or public employee officer resulting performed from acts injuries for liability public office. scope of individual’s within Lister, However, rule general this of 2d at 300. exceptions, representing subject is to immunity public "the need of balance struck between judicial against functions perform freely their officers Id. redress.” aggrieved party seek of an right affords no immunity doctrine Specifically, (1) or for protection employee to a officer duty5 a ministerial or performance negligent This, liability by personal the fear of and vexatious suits. dation person placing any together in a with the manifest unfairness required position judgment at in he to exercise his and is according responsible judgment of time is the same held others, may experience may be much who have no area and judgment discerning qualified pass than he in a fashion or less hindsight, acting largely may the basis has led now be who liability imposed general rule tort should not be to a imposition type would conduct of a for which impair performance discretionary substantially the effective of a function.” ministerial/discretionary distinction is not one of recent 5The Salomon, creation, in fact in but was articulated Druecker v. (*630) (1867): (*621), 637 Wis. 628 ministerial, any the duties office are individual "Wherever officer, injured by byor him the official acts of such acts done office, may under color of his resort to the courts for redress. purely clearly in the exercise of Wherever officer acts partake discretionary authority, his determinations of the charac- judicial It sometimes draw the exact ter of decisions. is difficult to ministerial line of distinction between authority. judicial officer act sometimes one same capacity, in the other.” and sometimes ministerial, discretionary, opposed as are to That decisions be concepts immunity initially forth rooted on set accorded (1 Cranch) Madison, (1803), Marbury in terms 5 U.S. malicious, is conduct that willful and intentional. See Samore, 720, 728, Ibrahim v. 348 N.W.2d (1984) 300-02). (citing Lister, 554 72 Wis. 2d at question presented ultimate in this case is whether permit operate ( the decision to Olson a vehicle was discretionary of a ministerial or nature.

The test which has evolved for determination duty discretionary is whether or is ministerial upon Eugene based that articulated in McQuillin’s municipal corporations. Meyer treatise on See (1955) Carman, 329, 332, 73 N.W.2d (quoting Municipal Corporations, E. 18 McQuillin, (3d ed.)). at 53.33 The test has remained substan- tially the same and was described in Lister as follows: public duty only "A officer’s is ministerial when it is imperative, involving absolute, performance merely certain and specific imposes, of a task when the law prescribes time, and defines the mode and occasion for performance certainty nothing its with such upon judicial political limitations review of decisions. See Drueck- (*629-30). er, 21 Wis. at 636-37 (Second) (1979) The Restatement similarly of Torts sec. 895D immunity scope discretionary describes limited in acts: "(1) Except provided public as in this Section a officer is not liability. immune from tort (2) public acting general scope A officer within the of his authority liability is from immune tort for an act or omission involving judicial legislative the exercise of a or function. acting scope general A officer within the of his authority subject not to tort is for an administrative act or if omission (a) engaged is he immune because in the exercise of a function, (b) privileged he and does not or exceed abuse the privilege, (c) negligent his conduct not tortious because he was not performance responsibility.” his Lister, 72 2d Wis. for discretion.” judgment remains 301. at Lister, applied was to determine analysis

In this responsibili- with the charged officer a whether for tuition residency purposes status determining ty a ministerial exercising performing discretion or was The residency determination. making when duty setting forth the that statute court determined prescribe status "did not for requirements residency that such process certainty with classification officer’s the administrative nothing remained and discretion.” Id. regard, In this the court judgment required that the classification fact highlighted consider, making officer to before the administrative classification, the student. several activities of Lister, Raymond, v. cases, Subsequent two Lifer (1977), Cords 2d 259 N.W.2d 80 Wis. Anderson, (1977), 2d 259 N.W.2d 672 were Wis. the ministeri- day regarding on the same decided In Lifer, act distinction. the court al/discretionary attempt an to hold a state officer liable for considered licensing a to drive who was negligently woman overweight too to drive. The court deter- allegedly from mined that examiner would be immune holding: liability, crystal any by that determination

"It is clear examiner applicant that for a road test an driver’s overweight suffering so to be from a license was as prevent disability or such 'physical disease as exercising him from over a reasonable control judgment involves the motor vehicle’ exercise complaint allege does and discretion. not promulgated motor vehicle division has inter- pounds nal rules which the maximum establish permitted per height. Any inch determination by a road examiner test reason of excess poundage particular applicant was unable exercise reasonable control over a motor vehicle is entirely judgment an part.” exercise on his Stats.).6 343.06(7), (quoting 2d at 510 analysis applied Cords, the same to reach a attempt different result. Cords concerned an to hold manager park injuries of a state-owned liable for resulting allegedly negligence failing from his notify supervisor dangerous his of a condition or to signs warning recommend erection of of such danger. general The court discussed the of rule presented immunity as in Lister but found the facts exception general therein to warrant Specifically, rule. court found that: "There a stops.’ comes time when 'the buck Ander- public employee] son knew the terrain at the [the 42, Kinsey, 6See also Pavlik v. 81 Wis. 2d 259 N.W.2d 709 (1977),in which court discretionary found both ministerial and court, alleged. construing duties to have been The complaint a liberally, arguably found ministerial duties to exist in the of duties employees state department to follow instructions of the of transportation regarding, alia, tempo inter of construction a rary However, signs. of road and the erection the court found allegations negligence concerning premature of opening of a adequately lighted it signs road before was and marked to with discretionary allegations concern decisions since the referred general "duties which are in nature and which are not stated to be pursuant specific superior authority.” to some direction aof at Id. 53. As to the distinction discretionary between the a nature of sign particular decision of whether to place locate traffic at a placement signs and the ministerial nature actual once made, 31, Ehly, the decision has see been Cords v. 62 2d 214 Wis. Dvorak, (1974); 92, N.W.2d 432 Chart v. 203 N.W.2d 673 (1973); County, 498, Dusek v. Pierce 42 2d Wis. 167 N.W.2d 246 (1969); Schultz, (Ct. Hjerstedt v. 2d Wis. N.W.2d 317 1983). App. night; dangerous particularly at he was glen was manager something do about position park as it. He is for it; anything about liable he failed to do Cords, 80 541. duty.” this Wis. 2d at the breach of duty place sum, the held that "the either In warning signs court superiors is, conditions or advise duty here, a so and so absolute the facts clear duty.” of a Id. within the definition ministerial it falls 542. at perceive plaintiff and defendant of a conflict court, and direct the and Cords7

between Lifer conflict, to the decision the court resolution of appeals Light Co., & v. Wisconsin Power Larsen (Ct. 1984). App. 2d 355 N.W.2d 557 Larsen, the observed as to and Cords: court Lifer represent uneasy compro- precedents an

"These protection judg- mise between compensation of in- ments state officials and parties. general principles are jured Two deducible: duty A officer has a clear who specific task must do so with reason- undertake a care; if an able and official exercise of specific danger, knows of a that official duties protect official must use reasonable care Cords, 541, danger. public 80 Wis. 2d at from 259 N.W.2d at 679-80.” Id. at 517. similarly suggested

7The in be dissent Cords discordance majority opinion in "The court’s tween Lister and Cords: reasoning appears duty ordinarily discretionary that a to be nature ministerial under certain circumstances. The become holding prior majority thus case that discretion abandons different, entirely recog ary functions and ministerial are nizes, Prosser, apparently as does that the difference is essential Prosser, degree.” (citing 2d W. one at 557 Law [sic] (4th 1971)). Torts, sec. 132 at ed. is, likelihood, While the result in all same, our characterization of the result of the Cords and Lifer by decisions differs from that set forth the court of appeals Specifically, in Larsen. whereas the court of appeals analysis in Larsen described the Cords danger” applied "known circumstances as a test to be to find even where an act is the result of a public interpretation discretion, officer’s an of Cords immunity more consistent with the doctrine of is that public duty danger a officer’s is ministerial where a is quality public known and of such duty officer’s imperative "'absolute, to act becomes certain and (quoting Cords, —’” 80 Wis. 2d at 541 Lister, 72 Wis. 301). public otherwise, 2d at duty Stated where a officer’s prescribed generally by is not and defined law in "nothing time, mode, occasion, such that remains judgment may give discretion,” circumstances duty where, rise to such Cords, a certain as in danger compelling nature of the and known to the officer and is of such force that the officer has explained subsequently no discretion not to act.8 As 8See County, also Domino v. Walworth (Ct. 1984), App. N.W.2d 917 appeals in which the court of police dispatcher’s determined failing that a reassign conduct in police squad investigate report of a downed tree falls within present danger: the Cords scenario of a known "We are satisfied that the facts of this case fall within the actions contemplated by County Cords rather than Lister. Walworth argues dispatcher] required [the exercise discretion at points respect question. various in time with to the event in We agree. However, simply allowing for the exercise of discretion does not bring immunity suffice to the actions under the blanket provided 893.80(4), Stats., allegations when the facts or the duty concept reveal a so clear and absolute that it falls within the duty. of a ministerial

715 663, County, v. Milwaukee Scarpaci (1980), specific it the nature of the act is N.W.2d based, opposed to the is as which upon officer, general duties of a categorization im- of whether an officer is is determinative Id. at 685. liability. mune from appear to be an additional source of There would the court’s decision in regarding Scarpaci.9 confusion the related issues of a Scarpaci decision concerned perform an autopsy examiner’s decision medical misconduct in the manner in which allegations noted, performed. The court with autopsy dispatcher] discretionary were not so so as to actions of [the [T]he 893.80(4), immunity provisions Stats. fall within the of sec. duties, case, Rather, dispatcher’s] under the facts of this [the absolute, imperative meaning appear certain or within the Cords."

Id. at 491-93. outset, Scarpaci it should be 9At the noted involved 895.43(4),

application statutory immunity under sec. Stats. 29, 1979, (1977), renumbered ch. laws of as sec. 893.80(4) 893.80(4). applies governmental Section bodies and officers, agents employees thereof but not to state officials and Ass’n, employees. 42 Wis. See Townsend WisconsinDesert Horse 893.80(4) 414, 423, provides 2d 167 N.W.2d 425 Section legislative, immunity pursuant for acts made to the "exercise of quasi-legislative, judicial quasi-judicial or functions.” While sec. case, present inapplicable previously 893.80 is to the this court has that, applied, 'quasi-judicial quasi-legisla noted "As the terms 'discretionary’ synonymous tive’ and are and the two tests result finding.” Lifer, Scarpaci, 80 Wis. 2d at 512. same See also n. Wis. 2d at 20. Because the common law analysis essentially equivalent immunity statutory 893.80, provided regard analysis applied under sec. in a case ing statutory immunity applies equal with force in decisions rendering application immunity. of common law respect autopsy, to the decision to conduct the that the statutory authority examiner had the to conduct the examination when the medical examiner had reason unexplained to believe that death had been due suspicious indicating, example, circumstances, for manslaughter. murder or As to this decision of wheth- perform autopsy, er to the the court observed that the legislature intended the medical examiner to exercise making subjective discretion in determination. Id. at Consequently, 684-85, 696. the court held that such a subjective immunity determination was entitled to 893.80(4) under sec. if even the decision that there was autopsy per- reason to believe that should be However, formed was erroneous. Id. at 696. the court found that while the medical examiner’s action in performing actually autopsy nature, medical, the discretion exercised was not governmental. Thus, Id. at 686. the court concluded judgment that and discretion involved in the performance autopsy did not entitle the medical 893.80(4). immunity examiner to under sec. exception general public sum, rule of immunity public officer exists where the officer’s or employee’s duty imperative, absolute, certain and involving performance merely specific of a task (1) imposes, prescribes the law and defines the performance time, mode and occasion for its with such certainty nothing remains for the exercise of judgment e.g., discretion, see, Lister, 72 Wis. 2d at present danger 300-01; or there exists a known time, such force that mode and occasion performance certainty is evident with such nothing judgment remains for the exercise of e.g., discretion, see, ally, Cords, 80 Wis. 2d at 541. Addition- immunity inapplicable the doctrine of be challenged where a officer’s decision involves the exercise of discretion but discretion exercised i.e., governmental, is not does not require applica- tion of statutes to facts nor a subjective evaluation of See, e.g., Scarpaci, Protic 686-88; law. Wis. 2d at Co., v. Castle 364, 370, 392 N.W.2d 119 County, Gordon v. Milwaukee (1986); 62, 125 Wis. 2d (1985).10 67, 370 N.W.2d challenged decision the case at bar con- parole cerns officer Hohlstein’s permit decision to In support position Olson drive. of the that Hohl- stein’s decision discretionary, was not the plaintiff 343.06, 343.28, 343.31, refers the court to secs. posits Stats. Plaintiff that these statutory sections set legislative forth a clear statement of that policy Olson, individuals such as who have been convicted of felony in which a motor used, vehicle had been and, should not be issued an operator’s license if one issued, had been that such license should be revoked. application Whatever the of these provisions statutory might duty Department be insofar as the of Transportation is concerned11 is question not a before questions presented 10Because we are satisfied that the by case at are bar resolved well-established Wisconsin law regarding the immunity, doctrine of we find that examination of jurisdictions regarding decisions immunity from other is unneces Moreover, find, sary. appeals, we as did the court of that the applied analysis jurisdictions regarding in other immunity is C.L., unhelpful. following See 230-31. at We find the by plaintiff inapposite cases cited both as to fact and rationale: State, Ryan 308, (1982); v. 134 Ariz. 656 P.2d 597 Mianecki v. Court, 93, Second Judicial Dist. 99 Nev. 658 P.2d cert. (1983); State, Reynolds dismissed 464 U.S. 806 Div. Parole and Services, Community 14 Ohio St. 3d 471 N.E.2d 776 343.06(11), Stats., provides department 11Section transportation shall not issue a license: provisions significant is that these What is the court. operate any to limit the discretion manner do not Department fact, and Social Services. of Health statutory to the includes some deference scheme Department of Health and Social Services under sec. providing may Stats., licenses be 343.31, any any person has been convicted of offense "To who adjudged delinquent specified and 944.12 or under ss. 940.225 offense, sentencing like similar when the ch. 48 for a or under finding that issuance of a license will be inimical to makes a court prohibition against public safety welfare. The issuance of apply immediately upon receipt shall a license to the offenders finding by secretary, and the court record of the conviction discharge any jail prison period year or until from or for a of one respect period probation parole any to the with sentence or Receipt by specified, whichever date is the later. offenses discharge department of a certificate of from offender responsible supervising agency and social services or other health shall, elapsed prohibition began, year since the after one has operator’s applicant apply for an license. The entitle the holder to discharge required present the certificate of be necessary.” secretary it if the latter deems present finding by case of a no indication the There has been sentencing be inimical to that "issuance of a license will the court finding Lacking by the trial public safety such a the and welfare.” 343.06(11) court, Consequently, period inapplicable. the sec. 343.31(l)(c) year, would be limited to one revocation under sec. expired prior period to the time Olson was would have which 343.31(3), paroled. sec. Stats. See mandatory the nature of revocation While we do not examine 343.31(l)(c) under sec. whether such revocation to determine part decision on the involves a ministerial or interesting transportation, to note the decision department it is for the Western District of States District Court of the United 343.31(l)(c) finding the exercise of to involve sec. Wisconsin discretion, ground "felony” under this that the reference to on clearly Nusberger v. Wisconsin Division section is not defined. 1973). (W.D. Vehicles, Supp. 352 F. Motor granted upon or reinstated in certain circumstances department of the the recommendation approval.12 with court arguments Apart concerning from the ch. (1) plaintiff Stats., asserts Hohlstein a had clear duty investigate advisability licensing Olson, reasonably perform; which he failed to had he reasonably performed duty, he would not have granted permission operate vehicle, to Olson to given danger apparent from Olson’s use of motor prior transport vehicles occasions to his female victims secluded areas before he assaulted them. In support of the contention that Hohlstein should have responded danger,” plaintiff presents to a "clear allegations explicitly alleged complaint. not Specifically, plaintiff asserts that had Hohlstein abid- departmental requirement ed of "maximum supervision” prescribed monthly visits, home danger apparent.13 could been have made Plaintiff 343.31(4), Stats., provides:

12Section "Any person operator’s denied motor vehicle under license 343.06(11) operator’s s. or motor whose vehicle license was 343.31(l)(i), stats., 9, 1963, prior revoked under s. to October granted operating privileges be such license or his reinstated upon department recommendation of health and social responsible having agency supervision services other applicant, approval applicant of the court in which the upon convicted of the suspension offense which the revocation or was based.” agent’s responsibilities included within an is the evaluation supervision maximum, and classification of the client’s needs as medium, 328.04(2)(b). or minimum. Wis. Admin. Code HSS by Olson needing was classified supervi Hohlstein as maximum question sion. by There some raised the affidavits submitted opposition in to the for summary judgment, motion and addressed by parties appeal, regarding agent’s the on parole the failure to

720 danger, of the two notes, imminency support attention First, directs the court’s plaintiff incidents. had been informed the that Hohlstein the fact to had been report that Olson anonymous of an police girls at a "eyeing” young in June of observed with this had confronted Olson Hohlstein tavern. Second, wrongdoing. any had denied report, but Olson home made by that at the visit plaintiff only argument analysis We commence our of this part by first under the the above-outlined test examining discretionary nature of the decision of parole agent grant permission a parolee whether to to a operate nothing

to a motor vehicle. There is in regulation specifies parole the agent which those factors a making in

should examine such a determina- parole agent’s tion. The nature of the decisions under Wis. Admin. Code sec. HSS 328.04 is apparent appendix in made the notes to this section: agent’s general

"This section states the and responsibilities specific provides a means of satisfying agent’s them. an simply, responsi- Stated bility help is to the client in to live socially acceptable way protect to public. This provide section has been structured sufficient agent flexibility to allow an to treat a client on an basis, individualized applying appropriate rewards and sanctions on the basis aof client’s conduct. designed This section to eliminate the arbitrary agent exercise of discretion providing while flexibility sufficient necessary make decisions so as not to tie his or her hands.” Wis. Admin. Code sec. HSS 328.04 app. nothing otherwise,

Stated there is in the administra- regulations any degree tive with describes certainty parole "time, mode and occasion” of the agent’s grant permission decision whether to parolee operate a vehicle.

Having parole agent’s thus determined that a regarding permission ordinarily decision to drive is agent, proceed one left to the discretion we present consider whether the facts the case at bar Cords, situation similar to that at issue where an danger is known or officer employee imminent of such force as to leave present danger to be and is a Cords, there to the discretion of the officer. nothing determination that could subjective justify could be no response in the failure to take some action manager to be park condition known the dangerous bar, However, nature very in the case at the present. involves a and parole agent’s position subjective of a danger posed the aby balance between discretionary the The parolee-client. and the treatment of parolee 328.04(3) provides: sec. "Sub- appendix accompanying for the rules permissible subjects section notes the court supplement any which should supervision of necessary those rules to imposed Only conditions. treatment, and necessary supervision, for the provide protection the client and the control of of those rules imposed.” The determination should be imposed of which should be parole or conditions against for and process weighing policies involves a of involving Decisions this such rules and conditions. precise are the sort as to policies of evaluation of type (Sec- Restatement must attach. See immunity (1979). ond) 895D, in Torts, While comment d of that the balance hindsight we observe consequences, grieve tragic struck and improperly danger of rose potential this is not to that say that, determining degree probability such a of drive, nothing permitted should be whether Olson discretion. was left to Hohlstein’s has, appeal, on failed to demonstrate plaintiff The more than any of recidivism was possibility suggest judgment To possibility. that —a just posit negligence was incorrect or even exercised Hohlstein, showing that absent part of ministerial, is to discuss the challenged conduct was type of conduct for which Hohlstein immune from impose liability. To for such conduct would professional inhibit the exercise unfettered discre- by parole agents consequently tion threaten the goals achievement the stated of reassimilation of independent community. the client into the judgment parole agents provided under Wis. Ad- min. Code sec. HSS 328.04 has been determined to best public, serve needs both the client and the prepared judicially strip are we not now professional judgment parole agents by clothing ill-fitting garb. act in ministerial "It is not the function of the court to undertake itself to type policy make the decision that is better left to position the placed.” administrative which the task is (Second) 895D, Restatement of Torts sec. comment d plaintiff

Finally, argument has advanced some negligent allegedly judgment parole of the agent governmental not discretion, did involve but professional judgment akin to that in considered Scarpaci. disagree. judgment parole We of the imposition officer insofar as the of rules parole and conditions of are concerned involves a decision-making process comparable more to a medi- perform autopsy, cal examiner’s decision to an Scarpaci governmental in was found to constitute judgment discretion, than to exercised in the actual performance autopsy, of which was found to be excepted immunity. from the doctrine Like perform autopsy, decision to an the discretion re- quired parole requires subjective of a officer a evalu- application presented ation and of the law to the facts parole given in an individual case. While is officer flexibility regarding in the decisions be made a

parolee, the framework within which the discretion is See, to be exercised is administratively regulated. e.g., app. Wis. Admin. Code sec. HSS 328.04 (quoted supra 17).14Thus, p. professional while judgment implicat- decision, parole agent’s ed generally, regarding imposition and, of rules and conditions of parole specifically, regarding grant permission vehicle, operate a the discretion involves the evalu- public policies ation of within regulated framework and consequently fundamentally constitutes discre- governmental tion of a nature. determine, above,

We for the reasons set forth the plaintiff allege has failed to circumstances warranting exception general rule of Therefore, officer we employee immunity. hold that complaint failed to state a claim upon which relief could be granted proceed no further in our of the order analysis propriety granting summa- ry judgment. Consequently, we affirm the decision of appeals. the court of

By the Court. —The decision of ap- the court of peals is affirmed.

STEINMETZ, I (concurring). J. concur result reached I write majority. only state does, that I Cords v. rely, would not as the majority Anderson, N.W.2d sum, the Cords was that "the holding to either duty place warning signs or superiors advise of the condi- regard allegation

14We note in this there is no Hohlstein failed to exercise his discretion such as to claim he acted jurisdiction, merely his outside rather than in excess of his Rather, jurisdiction. Scarpaci, 96 697. See Wis. 2d at the focus of challenged upon negligent the action is the exercise of discretion allegedly permit erroneous decision to to drive. Olson duty is, here, tions on the so clear and so facts it absolute that falls within the definition of a added.) duty.” (Emphasis ministerial at Id. 542. I holding exclusively believe that in Cords was limited therein, to the facts and is therefore an aberration causing joined law the confusion. I would have minority in I Cords had been the court in which well have made Justice Connor T. Han- dissenting opinion majority opinion. espe- sen’s I agree cially with the dissent’s statement the law as follows: "A duty ministerial involves '... the mere task_’

performance Meyer v. prescribed of a Carman, 329, 332, 271 Wis. 73 N.W.2d 514 duty must '"positively imposed by law;”’ be time, manner perfor- conditions of its ' mance "specifically designated” must be and the duty performance dependent must be upon not Meyer judgment officer’s discretion. Carman, supra, duty at 332. The must not involve '... judgment exercise of the upon officer’s act, propriety ...’ Stevens v. North States Motor, Inc., 345, 348, 161 Minn. 201 N.W. 435 (1925).”

Finally, I believe the dissent was correct in its majority opinion criticism of the that: "The employee must now discern and fulfill duties inherent post, objective appar- in his ently, and, without an referent superiors adopted contrary

even when his have policies.” Id. 557. at

Cords was not a fact situation in duty, arose from a violation of a ministerial because duty '"imposed by law,”’ "be time, must and the performance manner and conditions its must be designated.’”” '"specifically Cords, 80 Wis. 2d at Though Carman, 332. citing Meyer to disavow case not be the this briefed, likewise it is it was not holding in since Cords on as be relied should one in which Cords not authority. deci- majority’s concur

I therefore would sion. notes 12, 1982, Hohlstein, days four before on October assault, nervous and appeared that Olson he observed concerning county a Dane newspaper article had a Although on his table. not spread case rape-murder complaint, because we must alleged specifically we have appeal, complaint liberally construe true, them allegations accept as these considered See pleaded. inferences from the facts as as reasonable Maretti, 223, 229, 321 2d N.W.2d Prah v. Wis. prescribed monthly requirements of home visits comply with the regulations under maxi- for individuals under the administrative 328.04(4)(a). sec. HSS supervision. Wis. Admin. Code mum See allegations that Hohlstein failed have considered the we While grant they monthly insofar as relate home visits make allegations drive, these as an permission we do not consider construed, liability. liberally independent Even basis of negligence. theory support complaint such a distinct does not Judge Sundby in the regard, court we note the dissent of this appeals opines that the court of appeals, 140 2d at alleged negligent question of the should have considered in the affidavits as regarding home visits raised supervision allegation of a breach having complaint include an amended above, methodolo- duty. have discussed As we of a ministerial requires regarding summary judgment applied gy in Wisconsin complaint determine if a claim only the that we first examine granted stated. It would be has been which relief can be methodology the affidavits to examine with this inconsistent action. of a cause of search

Case Details

Case Name: C.L. v. Olson

Court Name: Wisconsin Supreme Court

Date Published: Apr 27, 1988

Citation: 422 N.W.2d 614

Docket Number: 85-1807

Court Abbreviation: Wis.