PUBLISHED OPINION
Case No.: 94-3403
Complete
Title
of
Case:AMY L. WALKER,
Plaintiff-Appellant,
TRANSPORTATION INSURANCE COMPANY,
Plaintiff,
v.
UNIVERSITY OF WISCONSIN HOSPITALS,
PROPERLY KNOWN AS THE BOARD OF REGENTS
OF THE UNIVERSITY OF WISCONSIN SYSTEM,
JULIE SWEDARSKY, ELAINE SNYDER,
LAURIE LOSENEGGER, DR. MARK MOFFET,
DR. GREG DODGE, DR. VICTORIA SHAMPAINE,
MARY ANN BIRD ROELKE and JOHN or JANE DOE,
Defendants-Respondents.
Submitted
on Briefs: September 8, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: November 22, 1995
Opinion
Filed: November
22, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: P.
Charles Jones
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., and Sundby, J.
Concurred: Sundby,
J.
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of Douglas W. Kammer of Kammer Law
Office, Chartered, of Portage.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of James E. Doyle, attorney general,
and Steven D. Ebert, assistant attorney general, of Madison.
|
COURT OF APPEALS DECISION DATED AND RELEASED November
22, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3403
STATE OF WISCONSIN IN
COURT OF APPEALS
AMY L.
WALKER,
Plaintiff-Appellant,
TRANSPORTATION INSURANCE COMPANY,
Plaintiff,
v.
UNIVERSITY
OF WISCONSIN HOSPITALS,
PROPERLY
KNOWN AS THE BOARD OF REGENTS
OF THE
UNIVERSITY OF WISCONSIN SYSTEM,
JULIE
SWEDARSKY, ELAINE SNYDER,
LAURIE
LOSENEGGER, DR. MARK MOFFET,
DR.
GREG DODGE, DR. VICTORIA SHAMPAINE,
MARY
ANN BIRD ROELKE and JOHN or JANE DOE,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed
in part; reversed in part and cause remanded.
Before
Eich, C.J., Gartzke, P.J., and Sundby, J.
EICH,
C.J. Amy L. Walker, a nurse's aide
working at University of Wisconsin Hospitals,[1]
was injured when a patient she was attending became violent and assaulted
her. She sued the hospital, the
University of Wisconsin Board of Regents and various hospital employees for
money damages claiming, among other things, that Mary Ann Roelke, an
occupational therapist employed by the hospital, was negligent in the manner in
which she applied physical restraints to the patient.[2]
The
trial court granted summary judgment dismissing the action, concluding: (1) the
hospital, as an arm or agency of the state, was entitled to sovereign immunity;
(2) Roelke, as a state employee acting within the scope of her employment, was
also immune from suit under the doctrine of "public employee
immunity," as discussed in several opinions of the supreme court and this
court.
We
conclude that the trial court properly dismissed the action against the
hospital and the board of regents, but that it erred in granting summary
judgment dismissing Walker's action against Roelke. We therefore affirm in part and reverse in part and remand to the
trial court for further proceedings.
The facts are not in dispute. Walker was assigned to "sit" with
a patient, Gerald Brainard, on November 7, 11 and 12, 1991. Brainard was a liver-transplant patient who
had returned to the hospital a year after his surgery. He was alleged to have a history of
behavioral and brain disorders which was known to hospital personnel.
When
Walker began sitting with Brainard he was in restraints in his bed and was not
lucid. And while the first two days of
her assignment were otherwise uneventful, Walker did note that Brainard was
loud and "extremely uncooperative" and that on more than one occasion
he was able to free his arms from their restraints, throwing things around the
room and pulling items from tables and carts.
During
Walker's shift on November 12, Roelke came to Brainard's room to exercise his
limbs. She released his arms and legs
from the restraints and when he became uncooperative, she discontinued the
exercises, reattached the restraints and left the room.
Sometime
thereafter Brainard asked Walker for a glass of water and when she approached
his bed he freed his hands, grasped Walker and began punching her in the
head. She claimed in her lawsuit that
she had not been told that Brainard was dangerous and combative, despite the
hospital's knowledge of these facts.
Other facts will be discussed below.
I. Sovereign
Immunity
Sovereign
immunity in Wisconsin derives from article IV, section 27, of the Wisconsin
Constitution, which provides, "The legislature shall direct by law in what
manner and in what courts suits may be brought against the state," which
has been interpreted to require that the state must expressly consent to be
sued. Busse v. Dane County
Regional Planning Comm'n, 181 Wis.2d 527, 534, 511 N.W.2d 356, 359 (Ct.
App. 1993).[3] As a general rule, the state's immunity
extends to its arms and agencies, although we have recognized that the
legislature may create an agency with such an array of "`independent
proprietary powers or functions'" that it becomes sui juris--"`sufficiently
independent of the state to be sued as such'"--and that when this occurs,
the state has waived its sovereign immunity with respect to the agency. Id. at 534, 511 N.W.2d at 359
(quoting Kegonsa Joint Sanitary Dist. v. City of Stoughton, 87
Wis.2d 131, 143-44, 274 N.W.2d 598, 604 (1979)).
There
is no question that the board of regents is an arm or agency of the state for
sovereign immunity purposes. Lister
v. Board of Regents, 72 Wis.2d 282, 292-93, 240 N.W.2d 610, 618
(1976). Walker argues, however, that
University Hospitals, even though it is an entity "establish[ed] by
regents as directed in § 36.25(13), Stats.,"
is not. Citing Majerus v.
Milwaukee County, 39 Wis.2d 311, 159 N.W.2d 86 (1968), one of the
leading cases on the "independent-going-concern" exception to the
rule of sovereign immunity, Walker maintains that the hospital is just such an
entity and thus may not be considered an arm or agency of the state for
purposes of the rule.
The
question in Majerus was whether the Wisconsin State Armory Board
was ineligible to claim sovereign immunity.
In order to resolve the issue, the supreme court looked to the board's
statutory designation and powers, which included: (1) its designation as a
"`body politic and corporate'"; (2) its statutory authorization
"to sue and be sued" in its own name; (3) its power to "convey
real estate and dispose of personal property without express authority from the
state"; (4) its power to "hold and disburse its own funds
independent of state warrants"; (5) its power to "borrow money
and issue and sell bonds and other evidences of indebtedness to accomplish its
purposes"; and (6) its ability to pay its debts out of rents and interest
received from its acquired property. Id.
at 314-15, 159 N.W.2d at 87-88 (quoted source omitted). The court concluded that such a plethora of
powers rendered the board sui juris, and thus ineligible to assert the
defense of sovereign immunity. Id.
at 315, 159 N.W.2d at 87-88.
The
hospital was established by the UW Board of Regents under § 36.25(13), Stats., for the purpose of delivering
health care, instructing medical students and other health professionals,
supporting health care research and providing assistance to health care
programs and personnel throughout the state.
Unlike the armory board, the hospital is not designated as a "body
politic and corporate," and it possesses neither the express power to sue
and be sued nor any statutory authority to borrow money.[4] All hospital leases and purchases of
equipment, goods and services are subject to state-directed bidding procedures
and other rules applicable to other state agencies, as are its personnel and
budgeting decisions.
Additionally,
both the supreme court and this court have recognized that a primary test for
sovereign immunity is "whether a judgment for the plaintiffs on their
claims ... would require payment from state funds." If so, the action is barred. Lister v. Board of Regents, 72
Wis.2d at 292, 240 N.W.2d at 617; see Grall v. Bugher, 181
Wis.2d 163, 168, 511 N.W.2d 336, 338 (Ct. App. 1993), rev'd on other grounds,
193 Wis.2d 65, 532 N.W.2d 122 (1995).
Walker argues that any judgment against the hospital in this case would
not implicate state funds because the hospital obtains liability coverage
through its participation in a state "risk pool." She infers that because the hospital contributes
money from its revenues to the pool, and because the pool is used to pay
claims, no "state funds" would be used to pay any judgment she may
obtain against the hospital. The
record, however, provides no support for the inference. The state risk management director stated in
his deposition that any judgments taken against the hospital would be paid from
the state treasury under § 20.865(1), Stats.[5] According to the director, "The
appropriation from the state treasury made in sec. 20.865(1), Wis. Stats., is
the only source of funds available to pay a judgment against any of the
defendants in this lawsuit."
Even
so, Walker maintains that other facts establish that the hospital is, like the
armory board in Majerus, an independent agency which does not
share in the state's immunity.[6] She first points to a provision in the
bylaws of the hospital's board of trustees giving the board authority to
"govern[]" the hospital, subject to the authority of the board of
regents and the UW president and chancellor.
We glean from that provision that the hospital's governance is indeed
subject to state control through the regents of the university.
Next,
referring generally to a collection of two years' worth of minutes of board
meetings, she asserts that "[a] review of the[se] minutes ... bears out
the reality" that the hospital administrator, not the board, runs the
hospital, apparently without control of either the hospital board or the board
of regents. It is an argument we need
not consider in light of the absence of citations to the record for the
underlying factual assertions.[7]
Walker
next contends that the hospital cannot be considered an arm of the state
because, according to the deposition testimony of a hospital financial officer,
Peter Christman, physicians who work at the hospital are not state employees
but rather are "employees" of Affiliated University Physicians (AUP),
a private entity with no relationship to the hospital. Christman's testimony, however, was not that
the physicians are "employed" by AUP but that AUP's "staff"
are not state employees. AUP, according
to the affidavit of one of its officials, Clara Scolare, is a nonprofit
corporation that provides recordkeeping, billing and collection services to
physicians who are faculty members of the UW medical school and who comprise
the hospital's medical staff. The
faculty physicians practice at the hospital and its clinics through various
partnerships organized pursuant to a 1974 agreement between the physicians, the
UW administration and the board of regents.
And while AUP staff--the employees of the corporation handling the
bookkeeping and other tasks for the physicians--are not state employees,
Scolare confirmed that "the faculty physicians are employees of the State
of Wisconsin."
Walker,
pointing to other portions of Christman's deposition, next asserts that the
hospital should not be considered a state entity because its
"profits" are not paid into the state treasury and that it acquired
and equipped a satellite clinic on Madison's west side with hospital
revenues. As to the first, Walker
correctly restates Christman's testimony as acknowledging that the hospital's
profits are generally not paid into the treasury,[8]
but are either invested in the hospital capital account or retained for
operations--but he also stated that "it's always part of a state
fund." Nor do we see anything in
the hospital's opening of a satellite clinic--which, according to Christman, is
run by the hospital and subject to "all the ... rules and regulations of
the institution"--that aids Walker's argument.
The
exception to sovereign immunity which is triggered when, à la Majerus,
the state is said to have created an independent agency with proprietary
powers, is a "`traditionally narrow exception,'" Busse v. Dane
County Regional Planning Comm'n, 181 Wis.2d 527, 539, 511 N.W.2d 356,
360 (Ct. App. 1993) (quoted source omitted), and Walker has not persuaded us that it should be applied here.[9] We conclude that the trial court correctly
dismissed her claim against the hospital.
II.
"Official" Immunity
The
general rule in Wisconsin is that a state officer or employee "is immune
from personal liability for injuries resulting from acts performed within the
scope of the individual's public office."
C.L. v. Olson, 143 Wis.2d 701, 710, 422 N.W.2d 614, 617
(1988) (citing Lister v. Board of Regents, 72 Wis.2d 282, 300,
240 N.W.2d 610, 621 (1976)). There are
three exceptions to the rule of state-officer/employee immunity: (1) where the
conduct causing the injury is malicious, willful or intentional; (2) where the
injury results from the negligent performance of a "ministerial"
duty; and (3) where the officer or employee is aware of a danger of such
quality or magnitude that he or she has an "`"absolute, certain and
imperative"'" duty to act and does not. Barillari v. City of Milwaukee, 194 Wis.2d 247,
257-58, 533 N.W.2d 759, 763 (1995) (quoted sources omitted). This appeal concerns only the second--the
"ministerial" duty exception.
The
supreme court has said that a public employee's duty is "`ministerial ...
when it is absolute, certain and imperative, involving merely the performance
of a specific task when the law imposes, prescribes and defines the time, mode
and occasion for its performance with such certainty that nothing remains for
[the exercise of] judgment or discretion.'" K.L. v. Hinickle, 144 Wis.2d 102, 108, 423 N.W.2d
528, 530 (1988) (quoting Lister, 72 Wis.2d at 301, 240 N.W.2d at
622). The rule was restated and
reapplied by the court in the very recent case of Barillari v. City of
Milwaukee, 194 Wis.2d 247, 257-58, 533 N.W.2d 759, 763 (1995).
As
applied to this case, we consider de novo whether the therapist's duty in re-tying
the restraints was so "`absolute, certain and imperative'" as to
leave nothing to her discretion. See
K.L., 144 Wis.2d at 109, 423 N.W.2d at 531 (quoted source
omitted). And we conclude that it was.
It
is instructive, we think, to consider some examples of
"discretionary" acts for which immunity has been found. They include (the list is not exclusive) the
conduct of a police investigation[10]
or a jail safety inspection,[11]
a traffic engineer's decision whether to erect or replace a traffic sign at a
particular location,[12]
a safety inspector's determination that a school building is in good repair and
in a safe condition,[13]
a probation officer's determination that a parolee should be allowed to obtain
a driver's license,[14]
and a prosecutor's decision to order an inquest in a particular case.[15]
In
this case, it was not Roelke's decision to restrain or not to restrain Brainard
in his hospital bed--a decision that undoubtedly would involve discretion under
the cases just discussed. The decision
to restrain him had been made by someone else.
Roelke's duty, after unfastening Brainard's restraints and administering
physical therapy to him, was no more or no less than to re-fasten them, as she
acknowledged in her own deposition testimony.
When asked what she did upon completion of the therapy session, she
replied: "There is a hole in the bed that I would usually put the
restraint through, one of the ties, and then I would tie it into a bow or a
knot.... I have no idea what kind of a knot."
The
straightforward and, according to Walker, simple act of re-tying a restraint
one has untied only moments before is wholly dissimilar to the types of
"discretionary" acts just mentioned.
Rather, it seems to us to be exactly the type of duty or act that is so
"absolute, certain and imperative"--one that is "define[d] ...
with such certainty that nothing remains for [the exercise] of judgment or
discretion"--that it can lead only to rejection of any claim of
governmental or "official" immunity.
We
therefore conclude that the defendant Mary Ann Roelke is not entitled to
immunity for the acts of negligence alleged against her in this action. Summary judgment dismissing her from the
action was, therefore, inappropriate.
By
the Court.—Judgment affirmed
in part; reversed in part and cause remanded for further proceedings consistent
with this opinion. No costs are awarded
to either party.
No. 94-3403(C)
SUNDBY,
J. (concurring). I am convinced that
the inconsistencies and anomalies we find in our decisions as to public officer
and public body tort immunity stem from our failure to recognize that
governmental tort immunity has been abrogated while public officer immunity has
not. In Holytz v. City of
Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), the court abrogated
governmental tort immunity. In Lister
v. Board of Regents, 72 Wis.2d 282, 300, 240 N.W.2d 610, 621 (1976),
however, the court applied the general rule that a public officer is immune
from tort liability to a person injured by his or her acts performed within the
scope of his or her employment.
However, the fact that the public officer may be immune does not mean
that his or her public employer is immune from liability for the officer's
act. In Holytz, the court
said that, "[b]y reason of the rule of respondeat superior a public
body shall be liable for damages for the torts of its officers, agents, and
employees occurring in the course of the business of such public
body." 17 Wis.2d at 40, 115 N.W.2d
at 625.[16]
The
doctrine upon which governmental tort immunity was based was the ancient and
fallacious maxim that "the king can do no wrong." Id. at 33, 115 N.W.2d at 621
(quoting Britten v. Eau Claire, 260 Wis. 382, 386, 51 N.W.2d 30,
32 (1952)). Hence, its interment by the
court. To make clear the scope of its
intended abrogation, the Holytz court said that,
"henceforward, ... the rule is liability--the exception is
immunity." Id. at
39, 115 N.W.2d at 625. The court was
concerned that subsequent decisions would emasculate its abrogation. However, what the Holytz court
feared has come to pass. The rule as we
now apply it is immunity, not liability, whether the action is brought against
a public officer or against the local government. We struggle, seemingly on a daily basis, to make sense out of
something which makes no sense: the
discretionary/ministerial dichotomy.
Tort liability suits against public officers and employees and
governmental bodies proliferate. Our
burdensome and rapidly expanding caseload is hugely contributed to by governmental
and public officer tort liability actions.
When we see such conditions, the Code of Judicial Ethics urges us to
speak out in the interest of the administration of justice. Supreme Court Rule 60.01(14).[17]
The
Holytz court cited the Comment, Municipal Responsibility for
the Torts of Policemen, 42 Yale L.J.
241 (1932). The commentator noted that,
"[a]n overwhelming opinion throughout the world in favor of the assumption
of community liability for the torts of public officers may be regarded as
representing a growing moral conviction to which the courts should not remain
impervious." Id. at
244-45, quoted in Holytz, 17 Wis.2d at 35, 115 N.W.2d at
622-23.
While
the Wisconsin courts have not been totally impervious to the responsibility of
the community to redress those injured by the acts of its public officers and
employees, we have on occasion absolved municipalities and public officers from
liability for acts callous to the safety and well-being of those to whom the
government and its officers owe a duty of care. In Swatek v. County of Dane, 192 Wis.2d 47, 531
N.W.2d 45 (1995), the county and its jail nurse were held to be immune from
tort liability for failing to hospitalize a jail inmate suffering from appendicitis
where the jail nurse advised the jailer that "he's got 24 hours"[18]
before the inmate's condition would require hospitalization and during that
twenty-four hours the problem would become that of the jurisdiction for whom
the county was holding Swatek. See
id. at 54, 531 N.W.2d at 48.
The
court did not come to grips with the issue in the case because it concluded
that the jail nurse's negligence was "not germane" to the court's
decision. Id. at 54 n.2,
531 N.W.2d at 47. The court failed to
distinguish the discretion § 302.38(1), Stats.,
gave the jailer as to how medical treatment was to be provided inmates from the
county's respondeat superior liability for the jail nurse's professional
malpractice. But see Gordon
v. Milwaukee County, 125 Wis.2d 62, 69, 370 N.W.2d 803, 807 (Ct. App.
1985) (county liable only if county-employed psychiatrist failed to exercise
"that degree of care and skill which would be exercised by the average
psychiatrist acting in the same or similar circumstances.").
The
Swatek court should have found that the county was liable for the
jail nurse's negligence, if established, regardless of the nurse's
immunity. We contributed to the confusion
by complicating the analysis. We should
not have been concerned whether the nurse's examination was discretionary or
ministerial. The resolution of that
dichotomy is irrelevant to the public employer's liability; what is relevant is
the officer's or employee's negligence.
Section
893.80(4), Stats., does not alter
the analysis or result. Public officer
immunity is unaffected by the statute and governmental tort immunity is limited
to acts of governance, as Holytz intended.
In
the interests of simplicity and fairness, we should abrogate public officer or
employee immunity. The reason for
immunity no longer exists because any judgment rendered against a public
officer or employee arising out of an act performed within the scope of the
officer's or employee's employment will be entered against the public employer
and not against the officer or employee. See § 895.46(1)(a), Stats. As to liability of the public body, the
legislature has "capped" that.
Section 893.80(3), Stats. Also, the existence of liability insurance
means that the public officer and governmental tort immunity doctrines protect
the insurance company's fisc and not the public treasury. The reason for the public officer and
governmental tort immunity rules having disappeared, so should the rules.
If
any justification for legislative action is necessary, it can be found in the
dissenting opinion of Judge (later Justice) Cardozo, in People v.
Westchester County Nat'l Bank, 132 N.E. 241, 249 (N.Y. 1921):
The legislature
might readjust the incidence of the burden, might establish a more equitable
distribution between the individual and the public, through the voluntary
acceptance of liability for a loss which was without a remedy when suffered.... The readjustment of these burdens along the
lines of equality and equity is a legitimate function of the state as long as
justice to its citizens remains its chief concern.
Quoted in Comment, 42 Yale L.J. at
247.
Wisconsin
has a progressive tradition. It was
among the first states to adopt a workers' compensation act, Laws of 1911, ch.
50, and an unemployment compensation act, Laws of 1931, ch. 20. The attempt of the Holytz
court to further that tradition in the area of governmental tort liability
foundered when the holding of the Holytz court was, as the court
feared, obfuscated by subsequent judicial decisions. In Lifer v. Raymond, 80 Wis.2d 503, 511-12, 259
N.W.2d 537, 541-42 (1977), the court mistakenly declared that the words
"legislative," "judicial,"
"quasi-legislative" and "quasi-judicial" were
synonymous with "discretion."
The legislature considered that it was codifying the Holytz
decision when it enacted what is now § 893.80(4), Stats. However, it is
clear that the Holytz court intended to except from abrogation of
governmental tort immunity only the common-law immunities for acts of
governance. However, the
discretionary/ministerial dichotomy developed and since Lister,
72 Wis.2d at 300-01, 240 N.W.2d at 621-22, the Wisconsin courts have attempted
to make sense out of what does not make sense.
The savings in the costs of investigation and litigation if public
officer immunity is abrogated will more than repay the occasional judgment a
public body or its insurer may have to pay as damages for the negligent acts of
its officers, employees and agents.
Further, with an adequate remedy available under state law, there will
be less incentive to squeeze a plaintiff's case into the framework of 42 U.S.C.
§ 1983, where there is no cap on liability and the government may be subjected
to ruinous costs of litigation if the plaintiff prevails. I urge the legislature to consider this
problem.
[1] Walker was employed by a private company,
Norrell Health Care, an independent contractor engaged in the business of
providing health care workers to several hospitals and clinics in the Madison
area, including University Hospitals.
[2] Walker also sued several physicians and other
hospital employees. While her appeal is
from the judgment dismissing the action against all defendants, her argument on
appeal centers on Roelke alone.
[3] The state's consent may not be implied:
"`[I]n the absence of express legislative authorization the state may not
be subjected to suit.'" Busse
v. Dane County Regional Planning Comm'n, 181 Wis.2d 527, 535-36, 511
N.W.2d 356, 359 (Ct. App. 1993) (quoted source omitted).
[4] Walker asserts in her brief that the hospital
has "the [independent] power to borrow money, and has borrowed large sums
for building purposes." She points
to no statutory authority for the assertion, but instead refers us to the
deposition of Peter Christman, a hospital financial officer. Christman's testimony, however, was simply
that the construction of the hospital in 1979 and several subsequent additions
were financed "with hospital funds either through ... direct payment"
or "by ... state obligation bonds."
Indeed, Christman stated that two-thirds of the original hospital
construction was financed by state obligation bonds. Walker has not satisfied us that the hospital has either actual
or implied authority to borrow funds independent of the State of Wisconsin.
As to
the statutory power to sue and be sued, in Bahr v. State Inv. Bd.,
186 Wis.2d 379, 394, 521 N.W.2d 152, 157 (Ct. App. 1994), we emphasized the
importance of such authority, stating that "there is nothing in the
legislature's grant of authority to the investment board that would indicate
that its authorization of suits against the board should be read as anything
other than a waiver of the board's immunity from suit." We think the absence of such a clause in the
statutes designating and empowering the hospital is of equal significance in
arriving at our conclusion in this case that immunity attaches.
[5] Section 20.865(1)(fm), Stats., appropriates from general state
funds "[a] sum sufficient to supplement the appropriations of state
agencies ... to pay for state liability arising from judgments and settlements
...."
[6] Walker does not argue that summary judgment
on the sovereign immunity issue was inappropriate because of the existence of
disputed material facts but that, as a matter of law, the hospital is an
independent entity that does not share the state's immunity.
[7] In Tam v. Luk, 154 Wis.2d 282,
291 n.5, 453 N.W.2d 158, 162 (Ct. App. 1990) (quoted source omitted), we said:
[W]e decline to embark on our own search of the record,
unguided by references and citations to specific testimony, to look for other
evidence to support [the factual basis underlying a party's argument]. Section (Rule) 809.19(1)(e), Stats.,
requires parties' briefs to contain "citations to the ... parts of the
record relied on" and we have held that where a party fails to comply with
the rule, "this court will refuse to consider such an argument ...."
See also Keplin
v. Hardware Mut. Cas. Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323
(1964) ("it is not the duty of [the appellate] court to sift and glean the
record in extenso to find facts which will support an assignment of
error").
[8] He stated at one point, however, that on at
least one occasion, some $2.9 million was paid to the treasury.
[9] Walker also points to portions of a 1993-94
Legislative Audit Bureau report evaluating a proposal to restructure University
Hospitals as establishing the lack of "[a]ny relationship between the
hospital and the government of Wisconsin." She cites us to the bureau's criticism of the hospital's creation
of a separate nonprofit corporation to acquire several private medical
practices and their assets in the late 1980's.
Some of the bureau's concerns were: (1) some of the funding for these
acquisitions came from the hospital; (2) it did not appear that the hospital's
board of trustees or the UW Board of Regents had been "fully
apprised" of the transaction; and (3) there was a lack of
"accountability within the ... network," which should be remedied by
creating a new entity to permit the hospital to operate and expand in the
future.
As the
audit bureau report acknowledges, "Construction, purchase, or leasing of
[hospital] facilities is subject to the review and approval of UW-Madison, UW
System, the Board of Regents, [the Wisconsin Department of Administration] and
the State Building Commission." We
think the fact that the hospital may have exceeded some of the limitations
imposed on it by the regents in this instance--for which it obviously has been
called to account by the state--does not warrant the conclusion that it has
forfeited or lost what we here conclude is its identity as an arm or agency of the
state.
[16] However, the doctrine of respondeat
superior does not apply to civil rights' liability. See Monell v. Department of
Social Servs., 436 U.S. 658, 691 (1978).