2009 WI 87
Supreme Court of
Milton J. Christensen, Alisa Jamieson, Erika Henderson, William Noggle and Troy Briggs and all others similarly situated,
Michael J. Sullivan, Robert Kliesmet and Lev Baldwin,
REVIEW OF A DECISION OF THE COURT OF APPEALS
2008 WI App 18
Reported at: 307
(Ct. App 2008-Published)
July 21, 2009
Submitted on Briefs:
October 8, 2008
Source of Appeal:
Clare L. Fiorenza
ABRAHAMSON, C.J., dissents (opinion filed).
BRADLEY and CROOKS, JJ., join the dissent.
For the defendants-respondents-petitioners there were
briefs by William J. Domina,
Milwaukee County Corporation Counsel, John
E. Schapekahm, Principal Assistant Corporation Counsel,
An amicus curiae brief was filed by Lori M. Lubinsky, Timothy D. Edwards, and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Counties Association.
For the plaintiffs-appellants there was a brief by Peter M. Koneazny, litigation director for the Legal Aid Society of Milwaukee, Inc., Milwaukee; Patrick O. Patterson, Law Office of Patrick O. Patterson, S.C., Fox Point, Cooperating Counsel for Legal Aid Society of Milwaukee, Inc. and ACLU of Wisconsin Foundation, Inc.; and Laurence Dupuis, legal director, American Civil Liberties Union of Wisconsin Foundation, Inc., Milwaukee; and oral argument by Patrick O. Patterson.
An amicus curiae brief was filed by Pamela R. McGillivray, Carlos A. Pabellon, Madison, on behalf of Robert J. Martineau, Gordon G. Myse, David Schwartz, Vincent M. Nathan, and Pamela Susan Karlan.
An amicus curiae brief was filed by Grant F. Langley, City Attorney, Rudolph M. Konrad, Deputy City Attorney, and Stuart S. Mukamal, Assistant City Attorney,
An amicus curiae brief was filed by Daniel J. La Fave, Cheri L Baden, and Quarles & Brady LLP,
2009 WI 87
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Milton J. Christensen, Alisa Jamieson, Erika Henderson,
William Noggle and
Michael J. Sullivan, Robert Kliesmet and Lev Baldwin,
JUL 21, 2009
David R. Schanker
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals, Christensen v. Sullivan, 2008 WI App 18, 307 Wis. 2d 754, 746 N.W.2d 553.
¶2 The decision reversed a 2006 order of the Milwaukee County Circuit Court, Clare L. Fiorenza, Judge, denying the plaintiffs' motion for monetary damages as a remedial sanction for the defendants' repeated violations of a Consent Decree involving the Milwaukee County Jail (the Jail). The Consent Decree was approved by the circuit court in 2001. Although the circuit court found that the defendants were in contempt of court, it declined to impose monetary damages as a remedial sanction or for breach of contract. When the court of appeals reversed, it remanded the case to the circuit court instructing it to determine the sum of money sufficient to compensate the inmates at the Jail who were held in violation of the Consent Decree.
¶3 The first issue presented in this class action is whether the circuit court was required to order monetary damages for certain members of the class who were inmates at the Jail between 2001 and 2004 as a remedial sanction against the defendants for their repeated violations of the Consent Decree, when there is no dispute that "the violations ha[d] ceased." The second issue is whether the aforementioned inmates are entitled to monetary damages for emotional distress based upon breach of contract, i.e., breach of the Consent Decree.
conclude, based on the facts of this case, that the circuit court had no
discretion to impose a remedial sanction against the defendants after
their contempt of court had ceased.
Remedial sanctions are "imposed for the purpose of terminating a continuing
contempt of court."
I. BACKGROUND AND PROCEDURAL HISTORY
¶5 The material facts related to this appeal are not in dispute. On March 12, 1996, Milton J. Christensen (Christensen), an inmate in the Jail, filed a handwritten, pro se writ of prohibition alleging constitutional violations stemming from substandard and dangerous conditions in the Jail. Among the specific conditions complained of were the following: dangerous overcrowding in the Jail; sharing of single-occupancy cells with other inmates; insufficient time outside the cell; and exposure to communicable diseases due to inadequate screening of new inmates. At the time of filing, Christensen had been held at the Jail as a pre-trial detainee for more than a year.
¶6 On May 8, 1996, the Milwaukee County Circuit Court, Michael Skwierawski, Judge, appointed the Legal Aid Society of Milwaukee, Inc. (Legal Aid) to represent Christensen. On July 25, 1996, with the assistance of counsel, Christensen amended his complaint in an effort to bring a class action "on behalf of all persons who are now or in the future will be confined in the Milwaukee County Jail." The amended complaint alleged constitutional violations at the Jail for substandard conditions.
¶7 The amended complaint alleged that the Jail's conditions caused the infliction of needless pain and suffering and created a threat to inmates' mental and physical well-being. The class sought relief "from conditions that fall below contemporary standards of human decency, deny basic human needs, inflict needless pain and suffering, and threaten plaintiffs' physical and mental well-being."
¶8 According to the amended complaint, when the Jail opened in 1993, it was designed to hold 798 inmates. This included 54 disciplinary and medical beds designated for temporary or special use. However, the average daily population in the Jail in 1995 was more than 1,200. Paragraph 27 of the amended complaint read as follows:
27. The Jail is seriously overcrowded. Although it is designed to hold a maximum of
798 inmates, the population on July 10, 1996 was 1304 inmates. Of these, 547 were in the Jail
post-sentencing, arguably making them the responsibility of the State of
¶9 Paragraph 28 continued with the following:
28. As a result of the high population of inmates, two inmates are confined to cells built for one. The second inmate is routinely forced to sleep on a mattress on the floor because each cell is equipped with only one bed. Because the mattress on the floor is so close to the toilet, the toilet "sweats" and water spills or urine splashes from the toilet onto the floor and gets the mattresses and bedding wet. For most inmates, there are no pillows for persons sleeping on the floor and there is only one blanket even when it is cold in the Jail.
¶10 The amended complaint pointed to the special problem of women in the Jail. Women were serving misdemeanor sentences in the Jail, and women also were held in the Jail for violations of probation or parole because there were no alternative facilities, such as the House of Corrections. In addition, inmates lacked sufficient access to adequate mental health care, medical care, and dental care, and women specifically lacked equal access to educational and job-training opportunities.
included the Secretary of the Wisconsin Department of Corrections, the
Milwaukee County Sheriff, and
¶12 On October 15, 1996, the class was certified by the Milwaukee County Circuit Court, Jacqueline D. Schellinger, Judge. It included "all individuals who are now or in the future will be confined in the Milwaukee County Jail . . . and all such confined individuals who are now or in the future will be subject to the policies and practices of Defendants."
¶13 After several years of motions, discovery, and negotiation, the parties submitted a settlement agreement (the Consent Decree) to the court for approval. The circuit court, Thomas E. Donegan, Judge, held hearings and on May 29, 2001, approved the 48-page Consent Decree.
¶14 At the hearings on the Consent Decree, the parties made clear that the suit was about injunctive and declaratory relief, not damages. Plaintiffs' counsel stated the following: "[T]he relief applies to all inmates. There are no damages."
¶15 The Consent Decree addressed two broad issues: overcrowding and medical services provided to inmates. The overcrowding section set a cap on the total population of the Jail at 1,100, limited the number of inmates in the booking–open waiting area (the BKOW) to 110, and stipulated that no individual would remain in the BKOW longer than 30 hours. The "Medical Services" section included provisions to improve medical and mental health screenings conducted on new inmates, decreased the wait time for sick inmates to receive a physical examination, improved the medication distribution system, developed a mental health program, and increased staffing levels of mental health professionals.
¶16 At issue in this case are the provisions addressing the inmates' length of stay in the BKOW. The relevant provisions of the Consent Decree read as follows:
C. As of 3/21/01, and thereafter, no jail inmate shall be required to sleep on a mattress on the jail floor or on the jail floor. There shall be no inmate in the jail for longer than thirty hours without being assigned to a bed approved by regulations of the Wisconsin Department of Corrections for overnight housing (see ¶D, next following).
D. Best efforts shall be made to assure that there will be no more than 110 inmates in booking at the midnight count. If the number exceeds 110, there shall be a plan for adequate emergency staffing in the booking room. The plan shall limit the number of inmates in the locked rooms surrounding the open waiting area in the booking room and shall specify how often those side rooms are checked. The maximum permanent population limit for the jail shall be 1100 at the midnight, "11:59," count (according to the so-called "Daily Census Reports"). The 1100 permanent capacity limit on the jail assumes that there will be a reasonable number of persons held on a short-term basis in the booking area. Since there are no beds in the booking room, a number of inmates may be placed there for not more than thirty hours. County defendants will exercise best efforts to limit any inmate's stay in booking—open waiting to twenty-four hours.
¶17 Following court approval of the Consent Decree, the parties skirmished about attorney fees for Legal Aid. On August 27, 2001, Judge Donegan awarded attorney fees against the defendants (except the Wisconsin Department of Corrections). The court entered judgment on attorney fees on January 15, 2002. The defendants appealed but ultimately sought a voluntary dismissal. Defendants satisfied the judgment on January 22, 2003.
¶18 The circuit court, Clare Fiorenza, Judge, held a status conference on November 25, 2003. The court then adjourned the matter until May 27, 2004.
¶19 On March 23, 2004, plaintiffs moved to conduct discovery. On April 1, 2004, the Principal Assistant Corporation Counsel, John Schapekahm, objected to discovery and filed a lengthy affidavit, which is described infra at ¶25. On April 6, 2004, the court conducted a motion hearing and then authorized plaintiffs to conduct discovery.
¶20 The court held a new status conference on June 2, 2004, and scheduled a tour of the Jail for June 21.
¶21 Another status conference was held on July 13, 2004. The docket entry reads in part: "Court met with counsel in chambers, off the record. Matter then called on the record. Matter here for a status conference. Plaintiff to file a contempt motion for violation that occurred prior to 4/28/04. There have been no new violations since that date." (Emphasis added.)
¶22 On September 13, 2004, the plaintiff class filed a motion alleging that the County had breached the Consent Decree, specifically the 30-Hour Rule, by holding more than 13,000 inmates in the BKOW for over 30 hours. The plaintiff class requested both contempt-of-court and breach-of-contract remedies.
¶23 On November 15, 2004, the circuit court, Jeffrey Kremers, Judge, found that the defendants had violated the Consent Decree and authorized the plaintiff class to conduct discovery to determine whether they were entitled to either contempt or contract remedies, or both.
¶24 Discovery uncovered a large number of violations, but the parties disagreed about what caused the violations and whether the defendants' attempts to comply with the Consent Decree were made in good faith. The plaintiff class reported that, between November 2001 and April 2004, the County had violated the 30-Hour Rule on 16,662 occasions. At least 4,811 inmates were held in the BKOW for more than two days, 719 inmates were held for more than three days, and 39 inmates were held for more than 100 hours.
¶25 In his affidavit of April 1, 2004, Assistant Corporation Counsel Schapekahm had claimed that the Consent Decree called for substantial compliance by the County defendants as well as semi-annual reports on compliance from the plaintiffs. He claimed that the plaintiffs had failed to file these reports. In response, the plaintiffs submitted a detailed 18-page letter alleging that booking room violations were not disclosed to them and were "in fact denied and otherwise obscured for months in which the plaintiffs were seeking information about this problem." According to the letter, defendants did not provide month-by-month breakdowns of the number of 30-Hour Rule violations until early April 2004. The June 2 letter added the following: "For the past four weeks that defendants have been giving weekly reports of the over-30-hour violations[,] the number has been zero for each of those four weeks." (Emphasis added.)
¶26 The County asserted that it made good faith efforts to comply with the Consent Decree. In a letter to the court, dated July 12, 2004, Attorney Schapekahm explained that the violations were the result of breakdowns in communications among administrators and were not intentional. He stated that "I . . . can testify to the shock written across the administrators' faces when the gravity of the situation became apparent."
¶27 The defendants blamed general overcrowding in the Jail as a primary cause of the 30-Hour Rule violations. According to Deputy Inspector Jerianne Feiten, who was largely responsible for overseeing the Jail from late 2002 to early 2004: "Orally or in writing, everyday it was reinforced that we would do——make every feasible attempt possible to reduce facility population. By reducing facility population, that would open up beds upstairs to which those beds would be filled from the booking room . . . ." The defendants emphasized, however, that reducing facility population was largely out of their control because the police and the courts controlled the number of inmates populating the Jail. The Jail population was a function of arrests, sentencings, court dates, and other factors not controlled by the defendants.
¶28 The defendants explained that, if the permanent cells in the Jail were full, they had no place to move BKOW inmates. As a result, the BKOW population increased, and with it, the amount of time inmates stayed in the BKOW. Thus, the defendants maintained that, despite their substantial compliance with the Consent Decree as a whole, their "best efforts," and an increase in the County's funding of the Jail from $42.5 million in 2001 to $53.7 million in 2004, they violated the Consent Decree due to circumstances beyond their control.
¶29 The defendants also attributed 30-Hour Rule violations to the Jail's "objective housing classification system" used to place inmates in permanent cells. The Jail examined criteria such as age, gender, prior criminal history, pending or sentenced charges, escape history, institutional disciplinary history, alcohol or drug abuse history, and various stability factors to ensure the safety of inmates and staff. While this system served important interests, the defendants said it also slowed the process of placing BKOW inmates in permanent cells. Furthermore, because some inmates could not be placed together——because of gang affiliation, gender, pending charges, or other factors——not every permanent bed in the facility could be utilized and that exacerbated the BKOW population problem.
¶30 Despite the various circumstances contributing to the 30-Hour Rule violations, the County quickly remedied the situation after the plaintiffs forced the issue in April 2004. No 30-Hour Rule violations have been documented since May 2004. This fact is notable, defendants claimed, considering that the County voluntarily imposed a stricter population cap on itself than was required by the Consent Decree. Defendants said that approval of funding in April 2004 to open a new dormitory in the House of Corrections was critical to easing population pressures in the Jail.
¶31 The plaintiff class took a sharply different view of the County's violations. In a letter to the circuit court on August 25, 2004, the plaintiffs asserted the following:
The problems were well known
in the [J]ail throughout many months in which the plaintiffs were expressly asking for the booking information and during which the defendants provided misleading and false information. The problem did not just "come to light" in April 2004 simply because upper level officials claim to be unaware of the conditions and practices in their jail.
The plaintiffs later pointed to the depositions of several administrators who admitted to knowing about the 30-Hour Rule provisions of the Consent Decree and that it was not being followed.
¶32 The plaintiffs cited the existence of a 72-hour shower list as evidence that 30-Hour Rule violations were well-known. BKOW guards maintained a list that kept track of the number of hours each inmate had been held in the BKOW. Any inmate held in the BKOW for 72 hours was to receive a shower. The existence of such a list, the plaintiffs said, should have raised red flags regarding 30-Hour Rule violations.
¶33 The plaintiffs further contended that the County intentionally hid the BKOW population limit violations. Interviews with inmates affected by the 30-Hour Rule violations and analysis of BKOW logs revealed that inmates were often moved out of the BKOW to other temporary locations in the Jail shortly before the nightly "11:59 P.M." count. The purpose of these temporary moves was purportedly to reduce the inmate population in the BKOW artificially in order to comply with the BKOW population cap imposed by the Consent Decree.
¶34 In response to these opposing views, Judge Fiorenza made various findings about the County's compliance with the Consent Decree:
¶35 The circuit court found that the "staggering" number of violations and extended period of time during which the violations occurred were clear evidence that the violations were "intentional." The County did not dispute these findings. Also undisputed was the court's finding that "the thirty-hour violations ceased immediately after the Plaintiffs filed this motion" to enforce their rights under the Consent Decree.
¶36 In January 2006, the circuit court declared that the County's intentional violations of the Consent Decree constituted contempt of court. However, the circuit court declined the plaintiffs' request to award money damages as remedial sanctions to "members of the plaintiff class who were subjected to violations of the [C]onsent [D]ecree." The court said that, because remedial sanctions are "imposed for the purpose of terminating a continuing contempt of court," Wis. Stat. § 785.01(3), and because it was undisputed that the County's violations had ceased, remedial sanctions could not be imposed.
¶37 The court rejected the argument that it could circumvent the legislature's regulation of the contempt power and exercise its inherent contempt power to force a party to comply with a court order. The court stated, "Because the statutory language is clear, the Court will not exercise its inherent powers to impose sanctions."
¶38 The court then considered whether breach of contract remedies were available to the plaintiff class. The circuit court found that the County's actions constituted a breach of the Consent Decree. However, although both sides agreed that "contract law applies in interpreting the terms of the Consent Decree," the court held that monetary damages for the breach were not warranted because the Consent Decree did not mention money damages as a remedy for a violation. Furthermore, the plaintiff class did not initiate its suit seeking monetary damages, and the class was certified for declaratory and injunctive relief only.
¶39 The plaintiffs appealed, and the court of appeals reversed on the issue of remedial sanctions. The court did not address the breach of contract issue. In analyzing the circuit court's reliance on the contempt statute, the court of appeals stated that:
[section] 785.04(1)(a), specifically authorizes payment of money to compensate a victim for an "injury suffered by the party as the result of a contempt of court." Use of the past tense in the statute plainly authorizes payment for injuries that occurred in the past. The legislature apparently recognized that bringing a party into compliance with a court order did not necessarily cure the harm the victim of the noncompliance had already sustained because of the violation of the court order.
[W]hen the purpose of the court's order has been thwarted for a substantial period of time by noncompliance, and the victim(s) of the noncompliance have suffered unremedied injury as a direct result of that noncompliance, a remedial sanction is not limited to belated technical compliance with the face of the court's order.
court of appeals remanded the case to the circuit court instructing it to
determine a "sum of money sufficient to compensate the inmates held in
violation of the Consent Decree for the loss or injury suffered."
¶41 The County petitioned this court for review, which we granted on May 13, 2008.
II. Standard of Review
¶42 The issues presented in this appeal are reviewed de novo. First, to determine whether the circuit court
had the statutory authority under Wis. Stat. ch. 785 to impose remedial
sanctions against the County for its contemptuous conduct, even though the
contemptuous conduct had ceased at the time the plaintiff class initiated the
contempt proceedings, requires this court to interpret and apply statutes. The interpretation and application of
statutes are questions of law that we review de novo. Frisch, 304
¶43 Second, determining whether the County's admitted violations of the
Consent Decree entitle the plaintiff class to monetary damages requires the
court to interpret the Consent Decree as it relates to damages for breach. The interpretation of a written agreement
between two parties is a question of law that we review de novo.
¶44 The defendants assert that the circuit court was correct in determining that it did not have authority to impose a remedial sanction against the County for contempt of court. The circuit court reasoned that it could not impose a remedial sanction because the contempt of court——namely, the County's violations of the 30-Hour Rule component of the Consent Decree——had ended before the plaintiff class filed its motion for contempt, and only a continuing contempt warrants imposition of a remedial sanction. The circuit court concluded that a continuing contempt of court is a prerequisite to the imposition of a remedial sanction under Wis. Stat. ch. 785.
plaintiff class responds that the circuit court does have statutory authority
to impose the remedial sanction "of a sum of money sufficient to
compensate a party for a loss or injury suffered," even when contemptuous
behavior has ceased and is no longer continuing. See
Chapter 785, when read as a whole and in light of its legislative intent, history and purpose, gives the trial court discretion to impose remedial sanctions for any contempt of court that has caused a party to suffer loss or injury, and to regard the contempt as "continuing" so long as the loss or injury goes unremedied.
¶46 The plaintiff class does not assert that remedial sanctions must be imposed when a loss or injury goes unremedied; it argues only that the circuit court has discretion to impose them in such circumstances. Thus, according to the plaintiff class, the circuit court erred in failing to exercise its discretion because it did not recognize its statutory authority to impose a remedial sanction after a contempt of court has terminated. We disagree.
¶47 Determining whether the circuit court has discretion to impose a remedial
sanction against the County for its past contempt requires us to interpret the
statutes found in Wisconsin Statute Chapter 785. "[S]tatutory interpretation begins with
the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the inquiry. Statutory language is given its common,
ordinary, and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special definitional
meaning." State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (internal
quotations and citations omitted).
Moreover, "[i]n construing or interpreting a statute the court is
not at liberty to disregard the plain, clear words of the statute."
¶48 We begin our analysis by focusing on the provisions of Wis. Stat. ch. 785, which codifies the law on "Contempt of Court." Wisconsin Stat. § 785.01(1) defines "contempt of court" as intentional:
(a) Misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court;
(b) Disobedience, resistance or obstruction of the authority, process or order of a court;
(bm) Violation of any provision of s. 767.117(1);
(c) Refusal as a witness to appear, be sworn or answer a question; or
(d) Refusal to produce a record, document or other object.
(2) "Punitive sanction" means a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court.
(3) "Remedial sanction" means a sanction imposed for the purpose of terminating a continuing contempt of court.
¶50 As noted, in
¶51 Punitive sanctions are "imposed to punish a past contempt
of court for the purpose of upholding the authority of the
a court imposing a punitive sanction is not specifically concerned with
protecting private rights. Frisch,
imposition of punitive sanctions for past contempt serves at least two
important objectives: it upholds the court's authority and it punishes
the contemnor. See Wis. Stat. § 785.01(2); Frisch,
¶54 Conversely, remedial sanctions are "imposed for the purpose of
terminating a continuing contempt of court."
¶55 A continuing contempt is required for the imposition of a remedial
sanction because remedial sanctions are not designed to punish the contemnor,
vindicate the court's authority, or benefit the public. See Frisch, 304
¶56 The court may impose the following remedial sanctions for the purpose of terminating a continuing contempt of court:
(a) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.
(b) Imprisonment if the contempt of court is of a type included in s. 785.01(1)(b), (bm), (c) or (d). The imprisonment may extend only so long as the person is committing the contempt of court or 6 months, whichever is the shorter period.
(c) A forfeiture not to exceed $2,000 for each day the contempt of court continues.
(d) An order designed to ensure compliance with a prior order of the court.
(e) A sanction other than the sanctions specified in pars. (a) to (d) if it expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.
¶57 The sanctions listed under Wis. Stat. § 785.04(1) "are essentially the same as under
prior law." Note, § 11, ch. 257, Laws of 1979,
at 1357. Moreover, all but one of the remedial
sanctions described in Wis. Stat. § 785.04(1)
expressly reflect the prerequisite of a continuing contempt of
¶58 Section 785.04(1)(a), if read in isolation, could be somewhat
ambiguous on this score. Standing alone, the paragraph could be
interpreted as allowing payment of a sum of money for a loss or injury suffered
in the past; however, such an interpretation would ignore the fact that the
continuing nature of the contempt is what authorizes the court to impose a
remedial sanction as opposed to a punitive sanction. See Wis. Stat. § 785.01(3) ("'Remedial sanction' means a
sanction imposed for the purpose of terminating a continuing contempt of
court."); Note, § 11,
ch. 257, Laws of 1979, at 1355 ("[A] remedial sanction . . . cannot be imposed if
for any reason the contempt has ceased, even as the result of the
settlement of a case.") (emphasis added); see also King, 82
¶59 Chapter 785 does not define "a continuing contempt of
court." If the court is required to
interpret a statute and the words in the statute are not defined, the court
must apply the ordinary meaning of the words to give effect to the statutory
language. Kalal, 271
¶60 The word "continuing" has many definitions. However, when using "continuing" in the context of determining whether something has either been terminated or is ongoing, as in this statute, see Wis. Stat. § 785.01(3), the word generally means "[t]o go on with a particular action or in a particular condition; persist," The American Heritage Dictionary of the English Language 408 (3d ed. 1992), see also Black's Law Dictionary 316 (7th ed. 1999) ("(Of an act or event) that is uninterrupted <a continuing offense>.").
¶61 This definition of "continuing" is consistent with our prior case law interpreting whether a contempt of court is "continuing" so that a remedial sanction may be imposed.
¶62 For instance, one obvious example of a continuing contempt
justifying a remedial sanction is where a parent is delinquent in paying child
¶64 In response, this court concluded that the father's contempt was
continuing because, while the court could not modify or terminate the support
order after the child reached majority age, "the force of the order does
not expire until the parent complies."
¶65 A second example of a continuing contempt of court is found in Evans. There, the original guardian ad litem,
appointed by the court to obtain approval of settlement agreements for four
minors in two personal injury lawsuits, failed to deposit the settlement awards
in restrictive trust accounts as ordered by the circuit court. Evans, 267
¶66 In affirming the circuit court, the court of appeals modified the
circuit court's rationale by employing the contempt statutes rather than Wis.
Stat. § 805.03.
¶67 In contrast, the most obvious case of a contempt of court that has
been terminated and is no longer continuing occurs when the underlying dispute
between the parties has been settled.
For example, in King, under the pre-1979 contempt statutes, this
court decided that the circuit court did not have the authority to conduct
civil contempt proceedings after the principal action between the parties was
settled and no longer continuing. King,
¶68 King was an opinion dealing with violations of an injunction
that required certain state employees to refrain from picketing and other
¶69 The King court rejected the state's theory of a third
category of contempt, a hybrid approach that would allow punitive sanctions in
¶70 The plaintiff class in this case relies on Frisch, a case
decided just two years ago by this court.
In Frisch, the underlying dispute was related to child support
and the disclosure of the father's financial information. Frisch, 304
¶71 After many months of court proceedings, the mother was forced to move
for contempt again, alleging that the father had failed to make the necessary
¶72 On review, this court reinstated the imposition of the remedial
sanction against the father for his repeated failure to abide by the court's
order requiring the timely disclosure of his tax return information.
Although [the father] did produce all the required documents before the circuit court found him in contempt, his contempt was continuing . . . because his production of documents came too late to undo the problems he had created by failing to produce documents on time. . . . Failure to timely produce income information 'as required' was really the essence of [the father's] contempt because it shielded him from exposure to regular, contemporary court-ordered modifications of child support. If [he] had supplied the information timely, he would likely have been paying more support than he did. By his repeated failures, [the father] deprived [the mother] of the information necessary to seek the periodic modification of support she was entitled to request under the law, and he deprived the court of its authority to timely modify its child support order. The contempt was continuing because [the father's] failure to comply with the court order deprived [the mother] of her ability to utilize traditional remedies in the law.
Frisch, the father paid all the child support that the court had
ordered. See id.,
¶23. But he did not pay all the child
support he would have had to pay if he had complied with the court's order by
disclosing his tax returns by May 12 of each year.
¶74 In the present case, the circuit court found that the County had been in contempt of court, that is, the County had violated the 30-Hour Rule component of the Consent Decree in the past. But the court found, and the plaintiff class conceded, that the 30-Hour Rule was not being violated in May, June, July, August, or September 2004, meaning that none of the members of the plaintiff class had a complaint that they were being detained in violation of the 30-Hour Rule at the time the motion for contempt was filed. In short, the County's contemptuous conduct was no longer continuing, and there is no suggestion that the County has violated any part of the Consent Decree since April 2004. Thus, we are left with the question of whether the circuit court, under these circumstances, had the statutory authority to impose a remedial sanction of any sort against the County for its past contempt. The answer to this question is "No."
¶75 Because the County's violation of the Consent Decree had
indisputably terminated before the contempt proceedings began, there is no way
we can justify the plaintiff class's request for monetary damages on grounds of
"a continuing [or persistent or uninterrupted] contempt of
court." Wis. Stat. § 785.01(3); The
American Heritage Dictionary, supra, at 408; Blacks Law
Dictionary, supra, at 316; see also King, 82
¶76 This is not a case where a contempt of court causes irreparable
harm by depriving a victim of her "ability to utilize traditional remedies
in the law." Frisch, 304
¶77 Finally, simply because the monetary remedial sanctions set forth
in Wis. Stat. § 785.04(1)(a)
do not expressly recognize that they can be imposed only "for the purpose
of terminating a continuing contempt of court" does not carry the day for
the plaintiff class. See
¶78 Inasmuch as the County's contempt of court had ceased and was no longer continuing at the time the contempt proceedings were initiated, remedial sanctions could not be imposed. Consequently, we affirm the circuit court's judgment denying the plaintiff class remedial sanctions in this case.
B. Breach of the Consent Decree
¶79 As an alternative to requesting monetary compensation as a remedial sanction, the plaintiff class seeks monetary damages for breach of the Consent Decree. The plaintiff class seeks monetary damages for emotional distress suffered by inmates on account of the breach. The circuit court denied this request, primarily on grounds that "[m]onetary damages for a violation of the Consent Decree are not even mentioned in the agreement."
¶80 The circuit court found that "the parties did not enter into the Consent Decree with the expressed intention of creating the opportunity for the award of damages . . . . [Moreover, t]he class action complaint was filed seeking declaratory judgment or injunctive relief. Nowhere in the complaint are monetary damages requested or mentioned."
¶81 The circuit court quoted the plaintiffs' trial counsel three different times as saying that the case was not about damages. The court said that monetary damages for breach of the Consent Decree "are inappropriate by the very terms of the agreement and by the nature of the pleadings of this action. The court will not exercise its equitable powers to award monetary damages when the language of the Consent Decree clearly does not provide for them."
¶82 Monetary damages were not the objective of this class action
suit. The original plaintiff,
Christensen, filed a pro se writ of prohibition in March 1996. In July 1996, Christensen amended his
complaint, with the assistance of counsel, to bring a class action under Wis.
Stat. § 803.08. In October 1996, the class was certified by
Judge Schellinger. "The
determination that a class action is appropriate is discretionary with the
trial court." Preloznik v. City
¶83 In May 2001, Judge Donegan approved the 48-page Consent
Decree. Judge Fiorenza found that the
Consent Decree was the product of extensive negotiation among the parties. That decree, she determined, did not
contemplate monetary damages.
"Damages in breach of contract cases are ordinarily measured by the
expectations of the parties." Handicapped Children's Educ. Bd. v.
¶84 Even if we were able to overlook these clear deficiencies, we would not approve monetary damages in this case. The plaintiff class claims damage "for humiliation, emotional distress, and mental anguish." In essence, these are damages in tort for a purported breach of contract.
¶85 The plaintiff class contends that the County could reasonably foresee that damage of this nature would result from holding prisoners for more than 30 hours without a bed and that "[m]onetary damages are the most effective remedy to put the victims of this breach in the position they would have been in had the settlement agreement not been breached . . . ." The plaintiff class points to Restatement (Second) of Contracts § 353 (1981), "Loss Due to Emotional Disturbance," which provides the following: "Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result."
¶87 Moreover, even if we adopted § 353 of Restatement (Second) of Contracts, the plaintiff class still would not be able to recover for emotional distress. In particular, Comment a. to § 353 of Restatement (Second) of Contracts reads in part:
Damages for emotional disturbance are not ordinarily allowed. Even if they are foreseeable, they are often particularly difficult to establish and to measure. There are, however, two exceptional situations where such damages are recoverable. In the first, the disturbance accompanies a bodily injury. In such cases the action may nearly always be regarded as one in tort . . . . In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. . . . [I]f the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance.
(Emphasis added.) The plaintiff class has not provided
sufficient evidence of compensable injuries to overturn the circuit court's
decision to deny the claim. Cf. Pleasure
Time, Inc. v. Kuss, 78
¶88 Although we acknowledge that some members of the plaintiff class may have suffered bodily injury, isolated incidents of bodily injury, even if proven, are nearly inevitable in a jail population of approximately 150,000 people over the period of three years (March 2001 to April 2004). Generalized claims of such injuries do not support an award of contract damages for widespread emotional disturbance among the 16,000 members of the class.
conclude, based on the facts of this case, that the circuit court had no
discretion to impose a remedial sanction against the defendants after
their contempt of court had ceased.
Remedial sanctions are "imposed for the purpose of terminating a continuing
contempt of court."
By the Court.—The decision of the court of appeals is reversed.
¶90 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). This
case involves the civil rights of individuals who were arrested and confined in
the booking area of the
do not see these substandard and dangerous conditions on TV when booking is
portrayed. But these conditions
apparently existed right here in
Legal Aid Society of Milwaukee, Inc., representing these arrestees, sued the
County and officials (collectively referred to as the County in the majority
opinion and here) for maintaining such conditions. The circuit court for
¶93 The circuit court found that the County intentionally violated the 30-hour provision of the court's Consent Decree on 16,662 occasions over nearly a three-year period, November 2001 to April 2004, keeping inmates in the booking area longer than 30 hours without assigning them to a bed. The County did not challenge this finding in the court of appeals or in this court.
¶94 After the Legal Aid Society sought discovery in April 2004 to prove violations of the Consent Decree, the County immediately remedied the conditions and began obeying the court order. In July 2005 the Legal Aid Society asked the circuit court to hold the County in contempt of court for intentionally failing to obey the court order. The circuit court so held.
¶95 The circuit court also held that even though the County intentionally violated the court order and was in contempt of court, the circuit court could not award monetary damages under chapter 785 of the statutes as a remedial sanction.
¶96 The issue before this court, stated in general terms, is the power of a circuit court to ensure compliance with its orders. More specifically, the issue before this court is the power of a circuit court to ensure compliance with its order by awarding monetary damages for a party's intentional violation of a court order that constitutes contempt of court.
¶97 The majority opinion holds that because a remedial sanction is statutorily defined as "a sanction imposed for purposes of terminating a continuing contempt of court," Wis. Stat. § 785.01(3) (emphasis added), a circuit court is powerless to impose the sanction of compensatory damages provided in § 785.04 (1)(a) "when breaches of the Consent Decree had ceased before the action for contempt was filed." In other words, under the majority opinion if the contempt of court lasts for nearly three years and ceases before the motion for contempt is filed, a court cannot require the contemnor to pay "a sum of money sufficient to compensate a party for loss or injury suffered by the party as the result of a contempt of court" as provided in Wis. Stat. § 785.04(1)(a). Thus in the present case, according to the majority opinion, the County can violate the circuit court order without penalty for two and one half years and may even be free to do so again so long as the County again stops the violations before a motion for contempt is filed.
¶98 I write separately, agreeing with the court of appeals that monetary damages are permitted under the statute in the present case. I would remand the cause to the circuit court to determine the sum of money, if any, sufficient to compensate the persons held in violation of the Consent Decree for the loss or injury suffered.
reach this conclusion for several reasons.
First, the majority opinion's interpretation of the phrase "remedial
sanction" in chapter 785 of the statutes is erroneous as a matter of
statutory interpretation. The
interpretation of the statute is inconsistent with the text of chapter 785 of
the Statutes, represents a sharp break from the traditional law of contempt in
¶100 Second, the interpretation contravenes Frisch v. Henrichs,
2007 WI 102, 304
¶101 Third, if chapter 785 is to be interpreted to create a void in a court's power to enforce an order through contempt, I conclude that a circuit court may award compensatory damages under its inherent powers over contempt in a case that falls into the statutory void.
¶102 Chapter 785 has to be interpreted in light of the texts of Wis. Stat. § 785.01(3) and § 784.04(1)(a), the context and structure of the chapter, the statutory and legislative history of the chapter, contempt law in Wisconsin, and the purpose of the contempt statute.
¶103 Section 785.01(3) provides: "'Remedial sanction' means a sanction imposed for the purpose of terminating a continuing contempt of court."
¶104 Section 785.04(1)(a) provides in relevant part: "A court may impose one or more of the following remedial sanctions: (a) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court."
¶105 A plain reading of Wis. Stat. § 785.04(1)(a) is that the circuit court may order contemnors to compensate others for losses or injuries suffered as a result of a contempt of court. Wisconsin Stat. § 785.04(1)(a) explicitly authorizes payment of money to compensate a victim "for a loss or injury suffered by the party as the result of a contempt of court" (emphasis added). The word "suffered" makes sense only if Wis. Stat. § 785.04(1)(a) applies to payment for losses or injuries that already have occurred and that resulted from past conduct.
¶106 Relying on the "clear language of the statute," Judge Fine wrote in his concurring opinion in the court of appeals decision in the present case: "Under Wis. Stat. § 785.04(1)(a)'s forthright and unambiguous directive, the plaintiffs are entitled to be compensated for the losses and injuries they suffered as a result of Milwaukee's clear and blatant contempt."
¶107 The majority opinion recognizes the validity of this interpretation. It states that "[s]tanding alone, [Wis. Stat. § 785.04(1)(a)] could be interpreted as allowing payment of a sum of money for a loss or injury suffered in the past . . . ."
¶108 The majority opinion nevertheless concludes that Wis. Stat. § 785.04(1)(a) should not be interpreted according to its plain meaning, in light of Wis. Stat. § 785.01(3)'s definition of a remedial sanction as a sanction imposed for the purpose of terminating a "continuing" contempt.
¶109 The court therefore must determine the meaning of the statutory phrase "a continuing contempt." This phrase is not defined in the statute. The majority opinion concedes that the word "continuing" has many dictionary meanings and selects the meaning "to go on with a particular action." Of course, here the County did "go on with a particular action" for nearly three years.
¶110 In ordinary, plain English, the County's contempt was continuing for almost three years. Why therefore does this case not present a case of continuing contempt? Where in the statute does it say that the contempt has to continue after the motion for contempt has been filed? Ah, says the majority opinion, by statutory definition (Wis. Stat. § 785.01(3)) the remedial sanction has to "terminate a continuing contempt," and here the County "terminated" its own continuing contempt by obeying the court order.
¶111 The majority opinion's reading of Wis. Stat. § 785.01(3) creates an unnecessary conflict between § 785.01(3) and § 785.04(1)(a); renders meaningless § 785.04(1)(a)'s specific grant of authority to a court to award compensatory damages to those who have suffered a loss or injury as a result of a party's contempt of court; and allows the contemnor to repeatedly violate a court order and to inflict harm without fear of being required to compensate its victims so long as the contemnor ceases violations before a motion for contempt is filed.
¶112 There is an alternative interpretation of the language in Wis. Stat. § 785.01(3) defining a remedial sanction as a sanction "imposed for the purpose of terminating a continuing contempt": A contempt is a continuing one and is not terminated as long as the loss or injury to the victim of the contempt has not been compensated. This interpretation of the contempt statute harmonizes Wis. Stat. § 785.01(3) and § 785.04(1)(a) and is consistent with the purposes of contempt.
¶113 One purpose of a remedial sanction in a civil contempt proceeding is to enforce an individual litigant's rights by ensuring a remedy for the litigant. Monetary damages in a contempt action may serve two purposes: (1) to compensate the individuals for loss or injury suffered, and (2) to deter the disobedient party from engaging in similar illegal conduct in the future. Thus monetary damages are consistent with the purpose of remedial contempt sanctions which, as the majority opinion acknowledges, are imposed for the benefit of the litigant and to procure present and future compliance with court orders.
¶114 Although the majority opinion acknowledges the conflict between § 785.04(1)(a)'s plain language authorizing compensation as a remedial sanction and the statutory definition of "continuing contempt," it strangely declares that "the definition of 'remedial sanction' is clear on its face." Majority op., ¶77.
¶116 The statutory and legislative history of chapter 785 helps resolve any perceived conflict between § 785.04(1)(a)'s express authorization of compensatory damages as a remedial sanction for contempt and 785.01(3)'s definition of remedial sanctions as a sanction imposed for the purpose of terminating a continuing contempt.
¶117 Before the 1979 repeal and recreation of chapter 785 a court's authority to impose the sanction of compensatory damages in a civil contempt proceeding did not depend upon whether the sanction served the purpose of terminating a continuing contempt of court. Every version of the Wisconsin Statutes from 1849 through 1977 stated that the sanction of compensatory damages could be imposed in a civil contempt proceeding. No version of the contempt statutes limited a court to using the sanction of compensatory damages as a means of terminating a continuing contempt of court. Indeed, in 1906 this court stated that the statutes relating to civil contempt proceedings sought "to indemnify parties to the action for their actual loss or injury" as well as "to compel the performance of duties still within the contemnor's power."
¶118 The pre-1979 contempt statutes were consistent with the law of other jurisdictions, which seem uniformly to recognize that contempt sanctions in a civil contempt proceeding may be imposed either for the purpose of terminating a continuing contempt or for the purpose of compensating a party for losses resulting from a contempt of court. The United States Supreme Court, for example, has stated that in civil contempt proceedings, sanctions "may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." Numerous state supreme courts follow the United States Supreme Court's approach.
¶119 The County correctly
acknowledges that prior to 1979, "a [
¶120 The legislative history tells a different story about the legislature's intent.
¶121 The 1979 contempt statutes were enacted in their present form as a result of the work of the Contempt and Extraordinary Remedies Committee of the Judicial Council. The Judicial Council's notes appear as explanatory notes to chapter 257, § 11, Laws of 1979.
¶122 The Judicial Council Notes, available to the legislature as part of the bill during enactment of the bill, advised the legislature that in repealing and recreating Chapter 785, the legislature was not changing the substantive law relating to contempt sanctions. The Notes explain that the 1979 contempt statute's definitions of "remedial" and "punitive" contempt reflect no "intent . . . to change the basic law of contempt." The Notes also state that "[t]he sanctions listed in this section [785.04] are essentially the same as under prior law" and identify a "remedial sanction" as the type of contempt sanction that traditionally could be imposed in a civil proceeding. The Notes generally suggest that the 1979 contempt statute preserves the substantive law of the past rather than abolishing it.
¶123 The statutory and legislative history does not support the County's view, accepted by the majority, that Wis. Stat. § 785.01(3) reflects the legislature's intent to diminish the courts' authority to impose compensation as a contempt sanction. Rather, the history appears to show that the Judicial Council understood the 1979 contempt statute as leaving the courts' traditional powers intact. According to the statutory and legislative history, Wis. Stat. § 785.01(3) must not be read as limiting Wis. Stat. § 784.04(1)(a)'s provision authorizing compensation as a remedial contempt sanction.
sum, as interpreted by the majority opinion, Wis. Stat. § 785.01(3) leaves the
Wisconsin courts unable to impose the remedial contempt sanction of
compensation except for the purpose of terminating a continuing contempt of
court and "terminating a continuing contempt" is narrowly
interpreted. This limitation on a
court's contempt authority did not exist between 1849 and 1979 in
of the correct interpretation of Wis. Stat. § 785.01(3), I agree with the court of appeals that the County's flagrant
violations of the court order represent "a continuing contempt" under
Wis. Stat. § 785.01(3) as the
statute was interpreted and applied by this court in Frisch v. Henrichs,
2007 WI 102, 304
¶126 The Frisch decision teaches that when a party is in contempt of the circuit court's order to perform actions by a specified time, the party cannot terminate its contempt by performing the required actions too late to undo its intentional violation of the circuit court's command respecting timeliness. The Frisch lesson applies in the present case, and under the reasoning of Frisch, this case therefore falls within chapter 785's provisions relating to remedial contempt.
¶127 In Frisch, a circuit court order required an ex-husband to provide his ex-wife with certain tax information by May 12 of each year. At the time of the contempt hearing, the ex-husband had complied with the circuit court's order insofar as it required him to provide the tax information to his ex-wife but had not complied (and no longer could comply) with the court's order insofar as it required him to provide the information timely. Furthermore, the ex-husband's failure to provide the tax information timely had harmed the ex-wife in a way that the ex-husband could not cure by providing the information too late to comply with the circuit court order. Because of the ex-husband's conduct, the ex-wife had missed opportunities to seek timely modification of a child support order in her favor and likely had not received the full amount of child support to which she was entitled.
¶128 This court concluded, with Justice Prosser writing for the majority, that the ex-husband's contempt was continuing at the time of the contempt hearing because the husband could not undo his violation of the circuit court's order respecting timeliness and was in continuing violation of that portion of the order. The Frisch court stated that "[t]he timely provision of information was an essential element of the [circuit] court's order." Furthermore, the husband's "[f]ailure to timely produce income information 'as required' was really the essence of [his] contempt because it shielded him from exposure to regular, contemporary court-ordered modifications of child-support." Due to the ex-husband's contempt of the circuit court's order respecting timeliness, "full compliance with the court's order [was] impossible." The Frisch court explained that the husband "could not and did not turn back time when he produced the required information too late to be acted on[.]"
¶129 The contempt in the present case, like the contempt in Frisch, consists of an intentional failure to perform actions timely as required by the circuit court's order. The Consent Decree required the County to implement the 30-hour rule "[a]s of 3/21/01, and thereafter[.]" At the time of the contempt hearing, the County had complied with the Consent Decree insofar as it required the County to implement the 30-hour rule but had not complied (and no longer could comply) with the Consent Decree insofar as it required the County to implement the 30-rule timely. Furthermore, the County's failure to implement the 30-hour rule timely harmed members of the plaintiff class in a way that the County could not cure by implementing the 30-hour rule too late to comply with the Consent Decree. Because of the County's conduct, many members of the plaintiff class were forced to spend more than 30 hours in the County jail without a bed, contrary to the Consent Decree's explicit mandate.
¶130 The Frisch court's reasoning applies cleanly and clearly to the facts of the present case. The County cannot undo its violation of the Consent Decree's provision respecting timelines and is in continuing violation of that portion of the Consent Decree. Timely implementation of the 30-hour rule unquestionably was an essential element of the Consent Decree. Due to the County's contempt of the circuit court's order respecting timeliness, full compliance with the Consent Decree now is impossible. The County could not and did not turn back time when it implemented the 30-hour rule too late to benefit the many inmates who spent more than 30 hours in the County jail without a bed, contrary to the Consent Decree.
¶131 The only obvious difference between Frisch and the present case that might seem to matter under the majority opinion relates to when the contumacious conduct stopped relative to when the motion for contempt sanctions was filed. In Frisch the contemnor began complying with the court order after the motion for contempt was filed (but before a finding of contempt). In the present case the contemnor began complying with the court order about three years after the order but months before a motion for contempt was filed. The timing issue, however, was not even mentioned in Frisch and certainly was not determinative.
¶132 The majority opinion seems to distinguish Frisch by declaring
that "[t]his is not a case where a contempt of court causes irreparable
harm by depriving a victim of her 'ability to utilize traditional remedies in
the law.'" Majority op., ¶76 (quoting Frisch, 304
¶133 The contempt statute offers no textual basis for the position that whether a contempt is "continuing" for purposes of Wis. Stat. § 783.01(3) depends on whether other remedies are available to the victim of contempt. The majority should not be distinguishing Frisch by rewriting the contempt statute, engrafting a requirement onto Wis. Stat. § 785.01(3) that is extrinsic to the statute and unsupported by the statute's text.
¶134 If the majority opinion's statutory interpretation is accepted, the result is that a circuit court has no power to impose remedial compensatory damages to sanction a contumacious party for intentionally violating a court order for nearly three years, a clear contempt of court, so long as the party ceases its contumacious behavior before a motion for contempt sanctions is filed. Thus there is a void in the statute relating to a circuit court's power to protect enforcement of its orders. Under such circumstances, the circuit court may use its inherent power to fill the void in the contempt statutes. Filling in a void in the statute does not contravene the statute.
¶135 "A court's power to use contempt stems from the inherent authority of the court" and a court's contempt power may not be "rendered ineffectual" by statute. A court's power of contempt exists independently of and outside the statutes; courts have retained their inherent contempt power in addition to the statutory power prescribed by the legislature. When the procedures and penalties for contempt are prescribed by statute, the statute controls as long as the statute does not render the court's power impotent or meaningless. To the extent that the legislature unreasonably burdens or substantially interferes with the contempt power of the judiciary, such interference with the courts' power to enforce their orders violates the separation of powers doctrine.
¶136 "The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice." A court has an "inherent power to protect its own decrees and the private rights attendant on those decrees." Intentional defiance of a court's judgment or order cannot be condoned. A party must be able to employ civil contempt proceedings to enforce its adjudicated rights. I therefore conclude that when a contempt has terminated and no remedial sanction is available under chapter 785, a court may exercise its inherent power to award compensatory damages to effectuate its order.
¶137 For the reasons set forth, I write separately in dissent.
¶138 I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this opinion.
 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
 Frisch v. Henrichs,
2007 WI 102, 304
 The plaintiff class
requests that we also consider the circuit court's inherent authority to impose
remedial sanctions. Also, the dissent
advocates, as an alternative to its proposed statutory interpretation, that the
circuit court can "protect enforcement of its orders" by utilizing
its inherent powers. Dissent, ¶¶134-136. We decline, however, to delve into the
court's inherent contempt authority because the legislature has enacted
reasonable regulations and limitations upon courts' use of the contempt
power. See Frisch, 304
Wis. 2d 1, ¶¶32-33, ("The
legislature has regulated contempt in Wis. Stat. ch. 785."); Douglas
County v. Edwards, 137
 Prior to 1979,
"Traditionally, a remedial sanction was the type of
sanction imposed for civil contempt. The
purpose of the sanction was remedial in that it was designed to force a person
into complying with an order of the court and terminating a present contempt of
court." Note, § 11, ch. 257,
Laws of 1979, at 1355. Today,
"[t]hat concept is continued here, even though without the civil contempt
Therefore, because "[t]he distinction between the purposes
of the contempt is retained in the current statute without the criminal and
civil contempt designations," D.L.D. v. Circuit Court for
 See 7 Jay E. Grenig, Wisconsin Pleading and Practice 623 (4th ed. 2007) ("[R]emedial sanctions [are] imposed for the purpose of terminating a continuing contempt of court."); Robert J. Martineau, Contempt of Court: Eliminating the Confusion Between Civil and Criminal Contempt, 50 U. Cin. L. Rev. 677, 693-94 (1981) ("A remedial sanction . . . is a sanction imposed for the purpose of terminating a continuing contempt of court. . . . [It] is concerned only with future conduct, it lacks a punitive element; rather, it is designed to coerce compliance with the directives of the court.") (internal quotations and footnote omitted); see also Grenig, supra, at 535 (noting that the previous statute's civil contempt power was imposed "for the benefit of another party"); Marna M. Tess-Mattner, Comment, Contempt of Court: Wisconsin's Erasure of the Blurred Distinction Between Civil and Criminal Contempt, 66 Marq. L. Rev. 369, 377 (1983) (recognizing that civil contempt under the previous statute was primarily concerned with coercing the contemnor into compliance with a court's order for the benefit of a private party).
 See also Larsen,
 Compare Wis.
Stat. § 785.04(1)(a)-(e)
 "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (emphasis added).
 In 1981, Robert J.
Arguably, imposition of absolute rather than conditional money damages as a remedial sanction violates the distinction between remedial and punitive sanctions made in subsections 785.01(2) and (3) because the sanction is based upon past conduct and is not designed to terminate a continuing contempt.
Martineau, supra, at
701-02. Professor Martineau argues,
however, that such an interpretation would be mistaken because imposition of
absolute "money damages for contempt" can serve as a remedial
Of course, any apparent inconsistency could be eliminated by modifying Wis. Stat. Ann. § 785.01(3) . . . to read as follows:
(3) "Remedial sanction" means a sanction imposed for the purpose of terminating a continuing contempt of court or of compensating a party for loss or injury suffered as the result of a contempt of court.
 Wisconsin Stat.
§ 785.01(2) defines "punitive sanction" as a "sanction
imposed to punish a past contempt of court for the purpose of upholding the
authority of the court."
(Emphasis added.) Admittedly,
there is no difficulty in conceiving of a sanction imposed to punish a past
contempt of court for the purpose of aiding a litigant. One interpretation of Wis. Stat. § 785.04(1)(a)
is that payment of "a sum of money sufficient to compensate a party for a
[past] loss or injury" is that kind of sanction.
 In this case, the
Wisconsin Supreme Court overruled previous case law that disallowed the
enforcement of child support orders after the child reached the age of
 Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just . . . .
 The court of appeals suggested what the monetary remedial sanctions should be if the circuit court found contempt:
[The sanctions] may include, under § 785.04(1)(a), requiring [the original guardian ad litem] to compensate the minors for their losses suffered as a result of her contempt and requiring her to pay the costs of procuring the restoration of the minors' funds. If the court deems additional monetary sanctions necessary or appropriate, such sanctions must be tied to the purposes set forth in paragraphs § 785.04(1)(c)-(e).
 Civil contempt looks to the present and future and the civil contemnor holds the key to his jail confinement by compliance with the order. On the other hand, the criminal contemnor is brought to account for a completed past action, his sentences are not purgeable and are determinate. Criminal contempt is punitive. It is not intended to force the contemnor to do anything for the benefit of another party.
 Under the statute, the key to whether the circuit court may impose a remedial sanction is the word "continuing." The dissent attempts to undercut the significance of the word "continuing" by avoiding the past tense of the word, namely, "continued" and instead using the past tense of the word "is," namely, "was." See dissent, ¶¶109-10 ("[T]he County's contempt was continuing[, i.e., it continued] for almost three years. Why therefore does this case not present a case of continuing contempt?") (emphasis added). However, the phrase "was continuing," does not connote the same meaning as the word "continuing." To illustrate, the Thirty Years War continued or "was continuing" for 30 years, but the Thirty Years War is not continuing. For the same reason, we can say the County's contempt continued or "was continuing" for almost three years, but the County's contempt is not continuing.
 The dissent suggests
that this decision permits the County to resume violations of the Consent
Decree without fear of penalty as long as the County ceases its violations
before any party is able to file a motion for contempt. See dissent, ¶¶97, 111. Although we
do not decide this issue on hypothetical facts not before us, we note that
repeated violations of a court order after a finding of contempt may constitute
a continuing contempt, and the circuit court has statutory authority to issue
an "order designed to ensure compliance with a prior order of the
 In a significantly different
fact situation, an appropriate authority may seek a punitive sanction and
request that probation be imposed upon the contemnor in place of imprisonment,
and then seek restitution as a condition of probation. See
 The dissent offers an
alternative interpretation for the definition of remedial sanction under Wis.
Stat. § 785.01(3):
"A contempt is a continuing one and is not terminated as long as the loss
or injury to the victim of the contempt has not been compensated." Dissent, ¶112. First, this
interpretation eviscerates the distinction between remedial and punitive sanctions
found in Wis. Stat. ch. 785. More
specifically, however, the dissent's interpretation would mean that a party's
contempt would not cease until remedial sanctions——better termed
"compensatory sanctions" under such circumstances——were actually
imposed. According to that
interpretation, two outcomes are possible: (1) the circuit court would be
required to impose remedial sanctions, thus depriving the court of its
discretion under Wis. Stat. § 785.02; or (2) the circuit court would
refuse to impose remedial sanctions and the contemnor would remain in contempt
of court indefinitely because "the victim of the contempt has not been
 The circuit court found the government officials in contempt for a "staggering" pattern of confining thousands of people in the jail's booking area in "unacceptable, if not appalling" conditions for extended periods in direct violation of the explicit terms of the consent decrees.
 Majority op., ¶35: "The circuit court found that the 'staggering number of violations and extended period of time during which the violations occurred were clear evidence that the violations were 'intentional.'"
Neither the court of appeals nor this court has been
asked to review the circuit court's determination that the County was in
contempt of the consent decree. Relevant
to the present case, the contempt statute defines "[c]ontempt of
court" to mean "intentional . . . [d]isobedience,
resistance or obstruction of the authority, process or order of a
 Majority op., ¶¶30, 35.
 Majority op., ¶4. See also id., ¶¶74, 75.
 Without deciding the issue, the majority opinion suggests that although the County was able to terminate its contempt of court (and preclude the use of remedial sanctions) by ceasing its repeated violations of the court order before a motion for contempt was filed, the County might be unable to do the same thing a second time. See majority op., ¶74 n.16 ("[R]epeated violations of a court order after a finding of contempt may constitute a continuing contempt . . . ."). In other words, the majority opinion suggests that under the contempt statute a contemnor has one freebie opportunity——but "may" not have two freebie opportunities——to repeatedly violate a court order with impunity prior to a motion for contempt.
The majority opinion also seems to imply that if the County resumes violating the court order and again ceases its violations before a motion for contempt is filed, the circuit court may exercise its authority under Wis. Stat. § 785.04(1)(d) "to issue an 'order designed to ensure compliance with a prior order of the court.'" Majority op., ¶74 n.16 (quoting Wis. Stat. § 785.04(1)(d)). Section 785.04(1)(d), however, is a remedial sanction and under the majority opinion's reasoning may not be used except for the purpose of terminating a continuing contempt of court.
 The circuit court concluded as a matter of law that remedial sanctions were not available under the circumstances of the present case. The circuit court therefore never determined what sum of money, if any, would be sufficient compensation.
 Frisch, 2007 WI 102, ¶82,
 Christensen v.
Sullivan, 2008 WI App 18, ¶25,
 Majority op., ¶58.
 Majority op., ¶60.
"[R]esort to a dictionary can be, as Justice
Scalia has written of the use of legislative history, 'the equivalent of
entering a crowded cocktail party and looking over the heads of the guests for
one's friends.'" Noffke v. Bakke,
2009 WI 10, ¶60, 315
 Contrary to the majority opinion's assertion at ¶77 n.18, this interpretation preserves the distinction between remedial and punitive sanctions. Punitive sanctions are imposed for the purpose of punishment, do not involve compensation to a victim, and may be imposed whether or not any harm to the victim has been remedied. See Wis. Stat. § 785.01(2) (defining "punitive sanction" as a sanction "imposed to punish a past contempt of court for the purpose of upholding the authority of the court"); Wis. Stat. § 785.04(2) (listing only fines and imprisonment as the sanctions that a court may use for a punitive purpose).
Nor does this interpretation eliminate a court's discretion to impose remedial sanctions. Nothing in chapter 785 requires a court to impose a sanction in every instance that a party is in contempt of court. Section 785.02 states that "[a] court of record may impose a remedial or punitive sanction for contempt of court under this chapter" (emphasis added).
 See Schroeder v.
See also Margit Livingston, Disobedience and Contempt, 75 Wash. L. Rev. 345, 345 (2000) ("Courts use contempt citations to compensate injured parties, [and to] coerce reluctant defendants and witnesses . . . ."); Dan B. Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183, 235 (1971) ("If the contempt proceeding is a civil one, its purpose is remedial——that is, its purpose is to compel obedience to the court's order, or, failing that, to get some substitute relief for the benefit of the opposing party." (footnote omitted)).
 Majority op., ¶55.
 For the other decision
interpreting Wis. Stat. § 785.01(3), see Frisch v. Henrichs,
2007 WI 102, 304
 A court may determine
whether to impose a "remedial" contempt sanction in an ordinary civil
proceeding. In contrast, when
determining whether to impose a "punitive" contempt sanction, a court
ordinarily must comply with the statutes governing criminal procedure. Compare
 See, e.g.,
In 1979, prior to enacting the current contempt statute, the legislature renumbered chapter 295 of the statutes as chapter 785. See § 62, ch. 32, Laws of 1979.
 Emerson v. Huss, 127
King overruled the Emerson
decision to the extent that Emerson permitted "imposition of
punitive sanctions in civil contempt which have no remedial or coercive attributes." King 82
See also Int'l Union v. Bagwell, 512
e.g., In re Contempt of
Dougherty, 413 N.W.2d
392, 398 (
See also Margit Livingston, Disobedience and
 Reply Brief of Petitioners at 2.
 Reply Brief of Petitioners at 3.
 The Judicial Council is
a body legislatively created in 1951.
 Note 3 (
 Note (
 See Note 2 (Wis. Stat. § 785.01), § 11, ch. 257, Laws of 1979, at 1355 ("Traditionally, a remedial sanction was the type of sanction imposed for civil contempt. . . . That concept is continued here, even though without the civil contempt designation.").
 At most, the Notes may
show that the Judicial Council, while attempting to preserve the substantive
law of contempt, misunderstood the purposes for which remedial sanctions
historically had been imposed in civil contempt proceedings. The Notes state that traditionally, the
purpose of a contempt sanction that could be imposed in a civil proceeding
"was remedial in that [the sanction] was designed to force a person into complying with an order of the court and
terminating a present contempt of court."
Note 2 (
Retired Judge Gordon Myse, a member of the Contempt and Extraordinary Remedies Committee of the Judicial Council, and Professor Robert Martineau, a member of the Committee and Reporter for the Committee, filed a third-party brief with this court in support of the plaintiffs. See Non-Party Brief of Robert J. Martineau, Gordon G. Myse, David S. Schwartz, Vincent M. Nathan, and Pamela Susan Karlan.
I do not rely upon Judge Myse's or Professor
Martineau's communications in the third-party brief as evidence of legislative
intent. I agree with the County that
after-the-fact statements by legislators and drafters of statutes should not be
relied upon to interpret the meaning of a statute. Labor & Farm Party v. Elections Bd.,
 See Christensen
v. Sullivan, 2008 WI App 18, ¶1,
 Frisch, 304
See also id., ¶47 ("Producing documents was only part of the court's order. Producing documents on time . . . was an equal part of the order.").
 Majority op., ¶16 (emphasis added; quoting the Consent Decree).
 Without explanation, reasoning, or citation to authority, the majority cavalierly declares that the plaintiff class may be able to bring a 42 U.S.C. § 1983 action for damages and that individual plaintiffs may file personal injury lawsuits. It is not clear that the individual members of the class may bring their own actions for damages. The majority opinion decides the issue without analyzing claim preclusion, the federal Prisoner Reform Litigation Act and its state progeny, or other practical barriers to such suits. As a practical matter and as a matter of judicial administration I do not think it a good idea for the majority opinion to encourage 16,662 individuals to file individual actions or to suggest personal liability for public officials in the present case.
 See Frisch,
 As the majority opinion explains: "The statutory scheme establishes two kinds of sanctions, each with specific criteria. There may be a void in this statutory scheme . . . ." Majority op., ¶58 n.10. The majority concludes without analysis that this void cannot be filled by judicial interpretation without doing violence to the statutes. Yet the majority recognizes that the statute does not deprive a court of its inherent powers to protect enforcement of its order.
 Frisch, 304
 In the Interest of
 Evans v. Luebke,
2003 WI App 207, ¶17,
 Ex parte Robinson,
86 U.S. 505, 510 (
 Upper Lakes
Shipping, Ltd. v. Seafarers' Int'l Union, 22
 Furthermore, Wis. Stat. (Rule) § 805.03 provides, without regard to remedial contempt, that a court in which an action is pending may make such orders as are just for any party's failure to obey any order of the court. A circuit court may determine that the compensation requested by the Legal Aid Society may be a just order against the County, which intentionally failed to comply with a court order for nearly three years. See Wis. Stat. § 805.03 ("[F]or failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under s. 804.12(2)(a). . . .").