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Thomas v. Mallett7/15/2005
Rather than take the defendant's arguments at face value, the majority continues its pattern of rushing to judgment and labeling the defendants in this case as wrongdoers by mischaracterizing their argument to the level of absurdity. In doing so, it unnecessarily introduces confusion into our Article I, Section 9 jurisprudence by insinuating that this provision requires the court to fashion a recovery for Thomas because he has suffered two separate wrongs.
Article I, Section 9 of the Wisconsin Constitution provides:
Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.
The majority ignores that in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, , 237 Wis. 2d 99, 613 N.W.2d 849, this court recognized that although " t is possible to mine the pronouncements of Wisconsin courts for evidence that art. I, § 9 creates rights, or that it authorizes courts to fashion rights[,] . . . this court has stated that art. I., § 9 confers no legal rights." (citing Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 238, 578 N.W.2d 185 (1998); Tomczak v. Bailey, 218 Wis. 2d 245, 262, 578 N.W.2d 166 (1998); Makos v. Wis. Masons Health Care Fund, 211 Wis. 2d 41, 79, 564 N.W.2d 662 (1997)(Bradley, J., dissenting); Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 189-90, 290 N.W.2d 276 (1980)(emphasis added)). "Rather, art. I, § 9 applies only when a prospective litigant seeks a remedy for an already existing right." Id. In other words, " he right-to-remedy clause thus preserves the right 'to obtain justice on the basis of the law as it in fact exists.'" Id. (quoting Mulder, 95 Wis. 2d at 189).
This understanding of Article I, Section 9, as expressed in Aicher, comports with how the provision has been understood since the time of Wisconsin's statehood. In McCoy v. Kenosha County, 195 Wis. 273, 276, 218 N.W. 348 (1928), this court rejected the plaintiff's contention that through Article I, Section 9 "there is secured by our state constitution to persons such as the plaintiff infant and the plaintiff parent, absolute rights to recover against any one causing by negligence such respective injuries." Further, we rejected the contention that this provision of our constitution was a gift of, a creation of, or a recognition of rights to a certain remedy for all injuries or wrongs to one's person, property, or character instead of being merely a solemn assurance that, conformably to the laws, a person should have his remedy for such wrongs or injuries as were, at the time of its adoption, recognized by the common law, or should thereafter be recognized, as permitting recovery in actions at law or proceedings in equity.
Id. at 276-77 (emphasis added).
The court further recognized that Article I, Section 9 was not intended to remove the common-law limitations on recovery in tort:
To hold, as now argued by appellants, that there is shown the desire by the founders of this commonwealth, through the adoption of its constitution, to sweep away all the old doctrines and previously recognized limitations upon the so-called natural rights of the individual, as such limitations had been found in the old world and in this country, prior to its adoption, would indeed effect quite a revolution in our present concepts of the rights and obligations of individuals to each other . . . .
Id. at 277. In other words, to interpret Article I, Section 9 in such a manner so as to guarantee a right of re
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