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Thomas v. Mallett7/15/2005
rces in determining a constitutional provision's meaning: "the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." State v. Hamdan, 2003 WI 113, n. 29, 264 Wis. 2d 433, 665 N.W.2d 785 (citation and quotation omitted). As Judge Brown correctly noted, the fact that Thomas may have been "wronged" by (and received a remedy from) his landlord simply has no bearing on whether Thomas has been "wronged" by one or more Pigment Manufacturers.
Although the right to a remedy provision does not guarantee the certainty of recovery, Neuhaus v. Clark County, 14 Wis. 2d 222, 229, 111 N.W.2d 180 (1961), it cannot be turned on its head such that it becomes a vehicle to defeat the plaintiff's right to recovery for wrongs committed by one simply because some recovery has already been had against another. Article I, Section 9 is not a shield against liability in this sense.
Thomas claims his injuries were caused by two separate wrongs: first, by the negligence of his landlords; second, by the Pigment Manufacturers for negligently manufacturing and marketing white lead carbonate as safe. While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance.
2.
Amicus for Civil Trial Counsel of Wisconsin (Amicus Civil Trial Counsel) contends our reading of Article I, Section 9 is too simplistic. It states that "there can be no gainsaying that over the past decade or so the interpretation and application of Article I, Section 9 have caused considerable jurisprudential disharmony within the Court." See e.g. Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849; Tomczak v. Bailey, 218 Wis. 2d 245, 578 N.W.2d 166 (1998); Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997), overruled by Aicher, 237 Wis. 2d 99, . Amicus Civil Trial Counsel observes that these cases involved legislative undertakings that, depending on the particular faction of this court's point of view, either unacceptably or acceptably limited or precluded judicial remedies. This is the proper fit for Article I, Section, 9, Amicus Civil Trial Counsel contends.
Amicus Civil Trial Counsel argues that the purpose and tradition of Article I, Section 9 establishes that it is to be invoked when the legislature has taken some unreasonable action. Where the legislature acts reasonably, Amicus Trial Counsel submits, this court has deferred to those decisions and concluded they did not violate Article I, Section 9. More to the point here, Amicus Trial Counsel contends that Article I, Section 9 does not empower this court to mold the common law whenever it happens to inconvenience plaintiffs seeking a remedy for their injuries. Amicus notes that this court has previously declined to utilize Article I, Section 9 to refashion common law.
Through all the disagreement, though, Amicus Trial Counsel submits that almost all members of this court, in various contexts, have cited the following proposition in discussing Article I, Section 9:
That section, though of great importance in our jurisprudence, is primarily addressed to the right of persons to have access to the courts and to obtain justice on the basis of the law as it in fact exists. No legal rights are conferred by this portion of the Cons
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