Aquilla Jessie v. State of Wisconsin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 21, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1706 Cir. Ct. No. 2019CV1174

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

AQUILLA JESSIE,

PLAINTIFF-APPELLANT,

V.

STATE OF WISCONSIN, STATE OF WISCONSIN - DEPARTMENT OF
CORRECTIONS AND ALEX WOUTS,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1706

¶1 PER CURIAM. Aquilla Jessie appeals a circuit court order
dismissing his petition for a declaratory judgment. Jessie argues that the court
erred in determining that his petition did not raise a justiciable controversy.1 For
the reasons discussed below, we affirm the dismissal order.

BACKGROUND

¶2 Jessie filed a 42 U.S.C. § 1983 action in federal court naming as
defendants several correctional officers, Fox Lake Correctional Institution, and the
Wisconsin Department of Corrections (DOC). Jessie alleged in the federal action
that Alex Wouts, then a correctional officer, repeatedly sexually assaulted Jessie
while he was incarcerated. The district court dismissed all of the parties except
Wouts, who by that time was serving a sentence totaling sixty years on related
criminal charges. After Wouts failed to file an answer in the federal case, the
district court held a hearing on a proposed default judgment and damages, entered
a default judgment against Wouts, and awarded Jessie $4.5 million in
compensatory and punitive damages.

¶3 Jessie filed the instant petition in the circuit court for Dane County
for a declaratory judgment against the State and the DOC (collectively, the State)
and Wouts. The petition sought determinations under WIS. STAT. § 895.46 (2019-

1
Jessie also argues that the circuit court erred in determining that the law-of-the-case
doctrine precludes his action. The court based this determination on a prior decision, Jessie v.
State, No. 2020AP462, unpublished slip op. ¶¶8, 11 (Apr. 29, 2021), in which we concluded that
the State enjoyed sovereign immunity and was thus properly dismissed as a party. Because we
affirm the dismissal of Jessie’s action on justiciability grounds, we do not address the parties’
arguments on the application of the law-of-the-case doctrine. See Barrows v. American Fam.
Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court
need not address every issue raised by the parties when one issue is dispositive.”).

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20)2 that: (1) Wouts was acting within the scope of his employment when he
violated Jessie’s constitutional rights; and (2) the State was required to pay the
federal judgment against Wouts. See § 895.46(1)(a) (setting forth the parameters
under which the State must pay a judgment entered against a state employee for
acts committed within the scope of that employee’s employment). Wouts did not
file an answer. The State moved to dismiss, arguing, among other grounds, that
sovereign immunity barred Jessie’s claim to damages from the State. The circuit
court granted the motion and dismissed the State, leaving Wouts as the sole
respondent in this action.

¶4 Jessie appealed the dismissal of the State, which was a final,
appealable order. Jessie and Wouts remained as parties in this action. Jessie
moved for summary judgment against Wouts on the scope-of-employment
determination. The circuit court held the summary judgment motion in abeyance
pending this court’s resolution of Jessie’s appeal. We affirmed the court’s
dismissal of the State from this action, concluding that Jessie’s suit against the
State was barred under the doctrine of sovereign immunity and that “the indemnity
provided by [WIS. STAT.] § 895.46(1)(a) [did not] constitute[] consent by the State
to be sued, or a waiver of sovereign immunity.” See Jessie v. State,
No. 2020AP462, unpublished slip op. ¶¶8, 11 (Apr. 29, 2021).

¶5 After this court issued its decision, the State made a limited special
appearance in the circuit court to contest Jessie’s summary judgment motion. See
WIS. STAT. § 895.46(1)(a) (if the State disputes that the employee was acting

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP1706

within the scope of employment, it may appear “to contest that issue without
waiving … sovereign immunity to suit”). As pertinent to this appeal, the State
argued that Jessie did not meet the four requirements of justiciability that are
prerequisites to determining the merits of his petition. See Loy v. Bunderson, 107
Wis. 2d 400, 409-10, 320 N.W.2d 175 (1982) (setting forth the requirements of
justiciability). The court agreed, concluding that there was not a justiciable
controversy between Jessie and Wouts. The court dismissed the action, and Jessie
appeals.

DISCUSSION

¶6 Jessie argues that the circuit court erred in concluding that it could
not entertain his declaratory judgment action because there was not a justiciable
controversy between him and Wouts. As framed, the question of whether, on an
undisputed set of facts, a justiciable controversy exists is a question of law that we
review de novo. See Olson v. Town of Cottage Grove, 2008 WI 51, ¶¶32-33, 309
Wis. 2d 365, 749 N.W.2d 211.

¶7 For a circuit court to exercise jurisdiction under WIS. STAT. § 806.04
to grant or deny declaratory relief, there must be a justiciable controversy. Id.,
¶32; Loy, 107 Wis. 2d at 409-10. A controversy is justiciable when: (1) “a claim
of right is asserted against one who has an interest in contesting it”; (2) the
controversy is between parties “whose interests are adverse”; (3) the party seeking
declaratory relief has “a legal interest in the controversy—that is to say, a legally
protectable interest”; and (4) “[t]he issue involved in the controversy [is] ripe for
judicial determination.” Olson, 309 Wis. 2d 365, ¶29 (quoting Loy, 107 Wis. 2d
at 410). All four requirements must be met before the court may entertain a
declaratory judgment action. Olson, 309 Wis. 2d 365, ¶29.

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¶8 We conclude that Jessie’s petition was properly dismissed because
the petition fails the first and second prongs of the above justiciability test.
Accordingly, we do not address the third and fourth prongs. See Barrows v.
American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508
(2013). Although the first and second prongs are separate inquires, here the facts
relevant to each overlap. A respondent has an interest in contesting the claim
when a determination on the merits might potentially be detrimental to the
respondent. See, e.g., Tooley v. O’Connell, 77 Wis. 2d 422, 427-28, 435, 253
N.W.2d 335 (1977) (Milwaukee board of school directors had “an obvious interest
in contesting” the claim that the statutory scheme for public-school financing was
unconstitutional, because the “fail[ure] to [contest] would result in the loss of the
ability to raise a large share of the funds necessary to operate Milwaukee’s school
system”); State ex rel. Chiarkas v. Skow, 160 Wis. 2d 123, 132-33, 465 N.W.2d
625 (1991) (county public defender’s office had an interest in contesting the
circuit court’s claimed right to appoint public defenders to represent nonindigent
individuals “[b]ecause of the potential impact on the Public Defender’s
workload”). Along similar lines, parties’ interests can be said to be adverse when
the interests are competing and incompatible. See, e.g., Tooley, 77 Wis. 2d at 437
(“[t]he plaintiffs seek to invalidate the financing system; the defendants by statute
are required to operate under and maintain the system,” and “[t]herein lies the
adversity”).

¶9 Jessie asserts that “neither the State nor [Wouts] want[s] a scope
determination” and that “Wouts is adverse to Jessie in every respect.” But these
assertions ignore the ultimate purpose of the scope determination, which is to
determine whether the State is obligated to pay the federal judgment against
Wouts. Thus, as the circuit court correctly observed, Wouts has a strong interest

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No. 2021AP1706

in not contesting Jessie’s claim because Wouts and Jessie have every reason to
seek the same outcome. A determination that Wouts was acting within his scope
of employment could only benefit Wouts, in that it might relieve him of his
obligation to pay the judgment by creating an avenue for Jessie to collect from the
State. Our case law reflects that a public employee typically has an interest in
obtaining (as opposed to contesting) a scope determination. See, e.g., Olson v.
Connerly, 156 Wis. 2d 488, 494-95, 457 N.W.2d 479 (1990) (employee moved for
a scope determination to obtain relief from the judgment entered against him);
Cameron v. City of Milwaukee, 102 Wis. 2d 448, 453, 307 N.W.2d 164 (1981)
(same).

¶10 Jessie does not respond to the State’s arguments on these points, nor
does he explain with any clarity why we should conclude that Wouts does not or
could not have an interest in, or could not benefit from, a scope determination.
Instead, Jessie appears to argue that criteria (1) and (2) are met because Wouts
cannot pay the judgment. But this circumstance supports the opposite conclusion:
that Wouts would benefit from a determination, on the merits, that he was acting
within the scope of his employment.

¶11 Jessie further appears to argue that criteria (1) and (2) are met
because “the State has a vested interest in the outcome of that [scope]
determination.” (Emphasis added.) But the fact that the State might satisfy these
justiciability criteria vis-a-vis Jessie has no bearing on whether Wouts—the only
remaining respondent—has an interest in contesting the claim or is an adverse
party. To escape this conclusion, Jessie argues that the State has somehow
“stepped into Wouts’ shoes”—and thus must be considered a respondent in this
dispute—because of certain actions the State took in the circuit court and on
appeal. Thus, Jessie proceeds from the premise that, if the State voluntarily

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waived its sovereign immunity, then we may consider the State a party for
purposes of our justiciability analysis.

¶12 We reject this argument. Assuming without deciding that a waiver
of sovereign immunity could affect our analysis, we nonetheless conclude that the
State did not waive its immunity here. First, Jessie argues that the State waived
immunity by participating in circuit court proceedings to a greater extent than the
limited appearance permitted under WIS. STAT. § 895.46. See § 895.46(1)(a) (if
the State disputes that the employee was acting within the scope of employment, it
may appear “to contest that issue without waiving … sovereign immunity to
suit”).3 Specifically, he points to the State’s appearing before the circuit court:
(1) to oppose the instant summary judgment motion on grounds of law of the case
and nonjusticiability; and (2) to move to quash a subpoena for documents relating
to Wouts’s employment, DOC training procedures, and DOC internal
communications regarding a federal scope-of-employment decision. Jessie fails to
explain why we should not consider these actions to have been part of the State’s
effort to contest Jessie’s petition for a scope-of-employment determination under
§ 895.46(1)(a). Indeed, these actions appear to directly relate to Jessie’s request
for a scope determination. Further, Jessie raises this argument for the first time in
his reply brief—even though he could have raised it in his opening brief—thereby
precluding the State from responding. This is an additional reason to reject this
argument. See Bilda v. County of Milwaukee, 2006 WI App 57, ¶20 n.7, 292

3
Jessie cites Lapides v. Board of Regents, 535 U.S. 613, 619 (2002), for the proposition
that “where a State voluntarily becomes a party to a cause and submits its rights for judicial
determination, it will be bound thereby and cannot escape the result of its own voluntary act by
invoking the prohibitions of the Eleventh Amendment.” Id. (quoted source omitted). Jessie
appears to be citing Lapides for the general legal principle that a State may waive constitutional
immunity protections. Jessie does not otherwise apply Lapides, and we do not further address it.

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Wis. 2d 212, 713 N.W.2d 661 (“It is a well-established rule that we do not
consider arguments raised for the first time in a reply brief.”).

¶13 Second, Jessie points to an order issued by this court after he filed
his appellate brief-in-chief, in which we addressed the State’s motion for leave to
file a nonparty brief. See WIS. STAT. RULE 809.19(7)(a) (“[a] person not a party
may by motion request permission to file a brief” with the court of appeals). The
order notes that “a non-party brief from [the State] would not be appropriate,
because [the State is] expressing a position more appropriate to a party”—that is,
the State “appears” to be “adverse” to Jessie. The order permits the State to file a
response brief, but not as a nonparty; instead, the order amends the caption to
include the State as a “respondent” in this appeal.

¶14 As Jessie would have it, “this Court recognized that the State was an
‘adverse’ party.” But Jessie does not explain how this order—relating solely to
how briefing was to proceed before this court—could reinstate the State as a party
in the underlying action. Nor does Jessie explain how our allowing the State to
file a brief as a “respondent” in this appeal—which is consistent with the State’s
continued right under WIS. STAT. § 895.46(1)(a) to contest a scope-of-employment
determination without waiving sovereign immunity—could have any substantive
legal effect on the justiciability of the remaining controversy between him and
Wouts. Accordingly, we do not address this argument further. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we do not address
arguments that are undeveloped or unsupported by reference to legal authority).

¶15 For the foregoing reasons, we conclude that there is no justiciable
controversy between Jessie and Wouts, and we affirm the circuit court order
dismissing Jessie’s petition.

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No. 2021AP1706

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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