Discretionary Immunity Dodges a Bullet

March 15, 2019

The Wisconsin Supreme Court’s recent decision in Engelhardt v. City of New Berlin (2019 WI 2) sends mixed signals on the future of the doctrine of discretionary immunity for governmental bodies.  On the one hand, the court upheld continuing validity of the doctrine by a bare 4-3 majority.  On the other hand, the court refused to apply discretionary immunity to the case before it.  In doing so, the Court broadened the recognized exceptions to the doctrine in order to permit recovery in a case with compelling facts.

Significantly, three justices concurred in the result, but made it clear they would have voted to abolish discretionary immunity.  The concurrence argued for a return to the rule of liability, with immunity granted only for actions that were legislative, judicial, quasi-legislative, or quasi-judicial.  That is consistent with the relevant statutory language in sections 893.80 and 893.82 of the Wisconsin statutes.

Discretionary immunity affords protection to a broad range of conduct by government employees.  Under the current rules, any action that requires the exercise of discretion is at least nominally protected under the rubric of discretionary conduct.  Justice Abrahamson noted in the majority opinion that this has been the rule for at least forty years.  As a result, the majority found sufficient justification to uphold the doctrine on the grounds of stare decisis, or legal precedent.

Discretionary immunity is a watered down version of absolute governmental immunity.  Absolute governmental immunity was rejected by the Wisconsin Supreme Court in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).  The Holytz court overturned governmental immunity and said that in the future the rule would be liability.  Immunity would be available only for actions that were legislative, judicial, quasi-legislative, or quasi-judicial.

The Holytz court invited the legislature to reinstate governmental immunity if it saw a fit.  The legislature did not, and instead enacted sections 893.80 and 893.82 of the statutes.  Both statutes state that actions may not be brought against the government or their employees for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions.  The language echoes Holytz with respect to immunity, and places other limits on claims against governmental entities and employees.

That language was effectively turned on its head by two decisions that came a few years after Holytz: Lister v. Board of Regents of the Univ. of Wis. Sys., 72 Wis. 2d 282, 240 N.W.2d 610 (1976) and Lifer v. Raymond, 80 Wis. 2d 503, 259 N.W.2d 537 (1977).  Neither overruled Holytz, but collectively they reinstated a rule of immunity by holding that because acts which are legislative, judicial, quasi-legislative, or quasi-judicial involve discretion, all discretionary acts are immunized.  That is the questionable logic that underlies the doctrine of discretionary immunity.

The courts have been chipping away at discretionary immunity for years.  Exceptions have been created for situations involving a known and present danger as well as situations involving acts that are ministerial in nature.  Generally, ministerial acts have been those that involve a specific mandate that is sufficiently detailed so as to leave no room for discretion.

The majority opinion in Engelhardt, upheld the discretionary immunity doctrine based on stare decisis, but did not comment on the various critiques of the doctrine.

The opinion also did not address the fact that Holytz has never been overruled, and the current statutory language came from Holytz.  Instead, the majority concluded that because the legislature had not chosen to alter the language of the statute in the face of many years of decisions upholding discretionary immunity, it must be viewed as approving that interpretation of the statute.

Despite the court’s commitment to discretionary immunity, it proved unwilling to grant immunity on the facts before it.  A young non-swimmer was allowed to go on a field trip because employees of the City of New Berlin assured the mother that the young girl would be watched carefully and there would be no risk to her.  The watchers were not careful enough, and the young girl drowned.

The majority concluded that the family should recover, citing both the known present danger exception and the ministerial duty exception.  Based on past case law, it seems difficult to fit this in within the normal ministerial duty analysis.  Although it can be reconciled with the known present danger analysis, there have been similar cases where the court has viewed the actions as discretionary.

Significantly, the concurrence authored by Justice Dallet made it clear that three justices would have struck down the doctrine and returned to the plain language of the statutes and Holytz.  Joining Justice Dallet were Justices Kelly and Rebecca Bradley.  The concurrence recites all of the many criticisms that have been heaped on the doctrine over the years.  With another Supreme Court election on the horizon, discretionary immunity is alive, but its continued viability may be precarious.