Days may be numbered for governmental immunity

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Hon. Shirley S. Abrahamson

A school district is immune from liability for the negligence of a guidance counselor in advising a student on coursework, the Wisconsin Supreme Court held on June 19.

However, in a series of concurrences, and one outright dissent, the justices suggested that the days of the ministerial/discretionary distinction in governmental immunity cases may be numbered.

Ryan Scott was a student at Stevens Point Area Senior High School (SPASH), which is part of the Stevens Point Area Public School District. SPASH offered guidance counseling services as required by sec. 121.02(1)(e) and Wis. Admin. Code PI 8.01(e). Dave Johnson was Scott’s assigned guidance counselor.

During Scott’s junior year of high school, he and his parents met with Johnson. The plaintiffs explained that Scott was trying to receive a hockey scholarship to an NCAA Division I school, and that the NCAA required students to take courses in certain core subjects in order to be eligible for a student athlete scholarship.

The Scotts told Johnson that they wanted to make sure Scott fulfilled the core requirements and needed help in selecting the appropriate courses. Johnson agreed to assist them.

The Scotts specifically asked Johnson whether a course called "Broadcast Com-munication" was a course approved by the NCAA as fulfilling a core English requirement. This information was available to Johnson through a form from the NCAA called Form 48-H.

The form explicitly states that "Broad-cast Communication" is not an approved course. Johnson, however, erroneously advised the Scotts that "Broadcast Com-munication" was an approved course. Scott enrolled in and completed the "Broadcast Communication" course.

After graduating from SPASH, Scott played junior hockey in Iowa and was offered a full four-year scholarship to the University of Alaska, an NCAA Division I school, which he accepted.

However, after receipt of Scott’s final transcripts from SPASH, the NCAA determined that Scott was not eligible for a Division I student athlete scholarship solely because "Broadcast Communi-cation" was not an approved core course in English, and the University of Alaska rescinded its scholarship.

Scott sued the District, seeking recovery in the amount of the rescinded scholarship plus the out-of-pocket expenses incurred for his education. The district moved to dismiss on governmental immunity grounds, and Portage County Circuit Court Judge James M. Mason granted the motion, relying on Kierstyn v. Racine Unified School District, 228 Wis. 2d 81, 596 N.W.2d 417 (1999), in which the Wisconsin Supreme Court held that a school district benefits specialist who provided erroneous advice was immune from liability.

Scott appealed, and the court of appeals affirmed in an unpublished decision. The Supreme Court accepted review and affirmed as well in a decision by Chief Justice Shirley S. Abrahamson.

However, Chief Justice Abrahamson also wrote a separate opinion, joined by Justices William A. Bablitch and N. Patrick Crooks, concurring with her own majority opinion, and suggesting that the court would rehear the case, and invite amicus curiae participation from affected organizations.

Justice Bablitch also wrote a concurrence, joined by Justice Crooks, stating that the result is unjust. Justice Diane S. Sykes wrote a concurrence, taking issue with the majority opinion’ mingling of tort and contract remedies.

Justice David T. Prosser dissented, arguing that the ministerial/discretionary distinction is contrary to sec. 893.80, the governmental immunity statute, and should be abolished. Justice Ann Walsh Bradley did not participate.

Discretionary Acts

Section 893.80(4) provides as follows: "No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."

Previous court decisions define quasi-judicial or quasi-legislative activities as any that involv
e the exercise of "discretion." Further decisions of this court recognize four limitations to governmental immunity where the activities performed are: (1) ministerial duties imposed by law; (2) duties to address a known danger; (3) actions involving professional discretion; and (4) actions that are malicious, willful, and intentional.

Scott argued that the case fit into both the ministerial duty exception and the professional discretion exception to immunity. According to Scott, Johnson was not required to exercise any discretion or judgment in accurately conveying the unambiguous information contained in Form 48-H that "Broadcast Communication" was not an NCAA-approved course.

Secondly, Scott asserted that Johnson, as a licensed and certified school counselor, exercised "professional" discretion and is therefore exempt from immunity.

The court rejected the arguments, however, agreeing with the circuit court and court of appeals that Kierstyn governs the result.

In Kierstyn, a school employee, who became ill and had to take a leave of absence, was told by a health benefit specialist employed by the school district that she could not apply for benefits from the Wisconsin Retirement System (WRS) until she had depleted all of her available sick leave. However, sec. 40.63 clearly and unambiguously states otherwise.

Relying on this misinformation, Kierstyn did not apply for benefits. Ms. Kierstyn died before depleting her available sick leave and therefore never applied for her disability benefits. Her death rendered her ineligible for the disability benefits.

Her husband sued, but the Supreme Court held the school district immune.

The court reasoned that the health benefit specialist did not perform a ministerial duty, because he was not legally obligated to provide WRS benefit information, and his conduct was not due to any duty that was "absolute, certain and imperative" or any law that "impose[d], prescribe[d] and define[d] the time, mode and occasion for [the conduct’s] performance."

The court also rejected Kierstyn’s argument that, once the benefit specialist took the discretionary action of providing WRS information, he had a ministerial duty to provide the information that was unambiguously contained in the statute.

Applying Kierstyn to the case at bar, the court acknowledged that, unlike the health benefit specialist in Kierstyn, Johnson provided guidance and counseling services to students that SPASH was required to provide by law. Nevertheless, the court concluded that he was still performing discretionary duties in giving advice about NCAA-approved courses.

Quoting the court of appeals’ decision with approval, the court repeated, "The counselor’s general obligation to provide counseling services did not dictate precisely what advice or information should be given to each student. Rather, the counselor was required to apply the requirements of various institutions to each student’s situation. This interpretive process was inherently discretionary in nature."

The court added, "like the clear and unambiguous benefits statute in Kierstyn, the existence of Form 48-H clearly and unambiguously detailing approved and unapproved NCAA courses does not transform Johnson’s counseling obligations into a ministerial act. His failure to provide correct advice in the face of clear and unambiguous information goes to his negligence, not the nature of his duty.

In the end, the plaintiffs’ argument is not that the NCAA Form 48-H imposes a ministerial duty on Johnson, only that its clarity renders Johnson’s conduct that much more negligent. The analysis of immunity under Wis. Stat. sec. 893.80(4), however, assumes negligence. We conclude that Johnson’s actions, like those of the health benefit specialist in Kierstyn, do not fall within the definition of ministerial conduct."

Professional Discretion

The court also rejected Scott’s argument that any discretion exercised by Johnson was professional in nature and therefore falls into that exception. The court reasoned,

"This argument was also raised in Kierstyn and rejected by this court. As the court in Kierstyn explained, the professional discretion exception to governmental immunity has been limited to the medical setting."

The court added that, even if it were to expand the scope of professionals covered by the exception, it would not extend it to include guidance counselors. The court stated, "The court concluded in Kierstyn that ‘even if we were to read [Scarpaci v. Milwaukee County, 96 Wis.2d 663, 292 N.W.2d 816 (1980)] as erasing immunity for acts of professional discretion, this expansion would be of no avail to [Mr.] Kierstyn.’ Including a health benefits specialist within the professional discretion exception would mean that many persons would fall within the professional discretion exception and that the exception ‘would swallow the rule.’ Similarly, we conclude that the professional discretion exception to Wis. Stat. sec. 893.80(4) does not apply to a guidance counselor."

The court then declined to abrogate the distinction between ministerial and discretionary duties altogether. The court stated, "The plaintiffs correctly point out that Ryan Scott has suffered greatly, and he has no avenue for redress. The outcome of this case is harsh, and the harshness of our holding is especially palpable because the negligence is so clear. Yet the doctrine of governmental immunity plays a significant role in our legal system. Imposing liability in the present case would therefore not serve the policy underlying the doctrine of immunity."

Contract Claims

The court also rejected Scott’s two contract-based claims — that a contract to provide counseling services exists between the District and the students; and that, if there is no such contract, Scott is nevertheless entitled to equitable relief under the doctrine of promissory estoppel because the District should have expected its promise to provide counseling services to induce him to act in reliance on that promise, which he did to his detriment.

Rejecting the first argument, the court stated, "We agree with the District and the court of appeals that no contract existed between the District and the plaintiffs in the present case. The district is required by statute and administrative regulation to provide guidance counseling services. Thus the District and its agent, Johnson, had a legal duty to the plaintiffs to do what they allegedly promised to do. Under Wis. Stat. sec. 121.02(1)(e) and Wis. Admin. Code sec. PI 8.01(e), the District and Johnson could not have refrained from providing counseling services. Consequently, neither the District nor Johnson could have participated in any bargained-for exchange for counseling services with the plaintiffs."

The court rejected the promissory estoppel claim as well, reasoning as follows: "Permitting the plaintiffs to obtain damages from an immune public official
through the back door opened by a claim of promissory estoppel contravenes the government immunity policy of this State set forth in Wis. Stat. sec. 893.80(4) and consequently would not serve the ends of justice. The circuit court correctly concluded that ‘the immunity rational [sic] of Kierstyn nevertheless applies [to the plaintiffs’] promissory estoppel premise just as it does to [the plaintiffs’] negligence claim. The facts giving rise to the claim are the same in either cause of action."

Accordingly, the court affirmed.

Abrahamson’s Concurrence

Despite authoring the majority opinion, Abrahamson also wrote separately, in an opinion joined by Bablitch and Crooks, stating, "One need only review a handful of this court’s recent decisions on the limits of governmental immunity to appreciate the jurisprudential chaos surrounding the phrase ‘legislative, quasi-legislative, judicial or quasi-judicial functions’ in sec. 893.80(4)."

Abrahamson continued, "If this court is ready to revisit the limits of Wis. Stat. sec. 893.80(4), as Justice Prosser’s dissent and Justice Bablitch’s concurrence suggest, then it should set this case for re-briefing and re-argument in the fall and invite amicus curiae participation from affected actors, such as the State of Wisconsin, the League of Wisconsin Municipalities, the Wisconsin Counties Association, the Wisconsin Insurance Alliance, and others. The impact of construing governmental immunity anew will have a far-reaching impact, and this court should only undertake such a task with the benefit of full information."

Bablitch’s Concurrence

Bablitch also wrote separately, in an opinion joined by Crooks, stating that he concurs only because of stare decisis. Bablitch wrote, "Although the majority’s result is consistent with past cases, it is also an unjust result. This court should revisit these past cases for the reasons so well stated in the dissent of Justice Prosser. A doctrine of governmental immunity that has caused such injustice and inequity, in this case and others, cannot, and I predict, will not, stand much longer."

Bablitch added, "Here, Scott did nothing wrong. In fact, he did everything right. Scott sought out the appropriate individual to assist him in choosing courses to fulfill the requirements for his NCAA scholarship. Scott relied on the advice of his high school guidance counselor, the school official who was privy to the information Scott requested; regrettably, it was to his detriment. The law should not allow such an injustice. Although the majority denies Scott any relief, I believe he should have a legal remedy. Accordingly, I respectfully concur."

Sykes’ Concurrence

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Sykes also wrote separately, "to state my disagreement with the majority’s characterization of promissory estoppel. The majority opinion appears to suggest that in some circumstances, promissory estoppel may be a tort remedy. This is incorrect."

Sykes explained, "The majority also asserts that ‘"[o]ne branch of promissory estoppel’s family tree lies in tort"’ and that ‘"[a]rguably, promissory estoppel can be asserted as an independent tort theory of detrimental reliance."’ Majority op., 53 n.42. The source of these statements is the treatise Corbin on Contracts. Id. There is no support in Wisconsin law for Corbin’s colorful genealogical assertion or an ‘arguable’ independent promissory estoppel tort."

Prosser’s Dissent

Prosser dissented, arguing that the time to abrogate the ministerial/discretionary distinction in municipal immunity cases is now. Prosser wrote, "In logic, a government agency seeking to rely on [sec. 893.80(4)] as a defense against the negligence of its employee should be required to establish that the employee’s negligence occurred in the exercise of some legislative, quasi-legislative, judicial, or quasi-judicial function. Yet, this is not the focus of our current jurisprudence. Instead, when the government claims immunity for negligence from an alleged ‘discretionary’ act, an injured party is forced to try to shoehorn the negligent employee’s conduct into one of the four narrow exceptions to governmental immunity, such as ‘ministerial duty,’ that have been grafted onto sec. 893.80(4). In effect, this methodology has made the rule become immunity — the exception, liability (cites omitted)."

Prosser added, "The legislature is not responsible for the reenactment of governmental immunity. This court is responsible for several decades of backsliding that has produced today’s opinion."

In conclusion, Prosser stated, "In determining today that a school counselor is immune from liability for advising a student that BROADCAST COMMUNICATION is an acceptable NCAA-approved course when the counselor had access to a two-page, clearly organized NCAA document listing BROADCAST COMMUNICATION as NOT ACCEPTABLE, this court has come virtually full circle on governmental immunity. The result is profoundly wrong and unjust. It is also contrary to legislative intent. For the reasons indicated, I respectfully dissent."

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David Ziemer can be reached by email.