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Thomas v. Mallett7/15/2005
titution.
Mulder v. Acme-Cleveland Corp, 95 Wis. 2d 173, 189, 290 N.W.2d 276 (1980). Against this backdrop, Amicus Trial Counsel argues that Collins was an aberration and its reliance on Article I, Section 9 as the foundation for its opinion was error.
In Collins, this court noted that Article I, Section 9 had been interpreted in the following manner: "When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts, under the Wisconsin Constitution, can fashion an adequate remedy." Collins, 116 Wis. 2d at 182 (citation and quotations omitted). Although this principle shows a parallel line of Article I, Section 9 jurisprudence, the court in Collins was not outstretched when it stated this principle, or at least not as outstretched as Amicus Civil Trial Counsel contends. See D.H., 76 Wis. 2d at 294; Hortonville Education Ass'n v. Hortonville Joint School Dist., 66 Wis. 2d 469, 497, 225 N.W.2d 658 (1975), reversed by 426 U.S. 482 (1976).
Setting aside the wisdom of this proposition for the moment, even Amicus Civil Trial Counsel agrees that in McCoy v. Kenosha County, 195 Wis. 273, 277, 218 N.W. 348 (1928), this court held that the phrase "conformably to the laws" in Article I, Section 9 relates to "a recognized, long established system of laws existing in the several states adopting the constitution as well as in the prior organizations from which the states were organized." That "common law," however, is frequently refined by this court, consistent with the dynamic principle that "allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose." Bielski, 16 Wis. 2d at 11 (citation and quotations omitted). Thus, although the Article I, Section 9 provision itself may not create "new rights," it does allow for a remedy through the existing common law. As Collins allowed for the recognition of the risk-contribution theory in factually similar cases, we must assess whether this common law applies to Thomas's situation. Collins, 116 Wis. 2d at 191.
Confronting the wisdom of this "adequate remedy" proposition, Amicus Civil Trial Counsel's chief criticism is that this proposition cannot be maintained in some principled way, thereby creating uncertainty in a number of cases. Although this criticism carries facial appeal, the goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. This is, as it has been called, its "genius." Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 551, 150 N.W.2d 137 (1967). Although there are those who champion rigid rules with clear delineations, the fact is that the " ommon law is law subject to continuing judicial development, including abrogation." State v. Picote, 2003 WI 42, 261 Wis. 2d 249, , 661 N.W.2d 381. Indeed, this process of continuing refinement is a vital component of judicial power. State v. Esser, 16 Wis. 2d 567, 581, 115 N.W.2d 505 (1962). If in the name of certainty this court simply deferred to the eras of days passed, we would "succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her]." Bielski, 16 Wis. 2d at 11.
B.
Having determined that Article I, Section 9 is not a bar to considering whether Thomas's suit is factually similar to Collins, we now consider whether Thomas's suit is factually similar to that in Collins. Thi
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