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Strenke v. Hogner3/18/2005
defines the "rights" to which it is referring. The majority states, "the act or conduct must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right." Majority op., . What exactly are these "other" rights? Is the majority referring to constitutional rights, common-law rights, statutory rights, or rights yet to be recognized?
. In an attempt to assuage these concerns, the majority ostensibly affixes additional prerequisites to the imposition of punitive damages. The majority states that in addition to constituting an intentional disregard of the plaintiff's rights under § 895.85(3), "the act or conduct must be sufficiently aggravated to warrant punishment by punitive damages." Majority op., . However, this "added requirement" is entirely illusory, as it is § 895.85 that describes the level of aggravation sufficient to warrant punitive damages in the first place. The majority also cautions that "circuit courts to serve as gatekeepers" in analyzing the conduct at issue and determining whether there was in fact an intentional disregard of rights, "before sending a question on punitive damages to the jury." Majority op., . This "gatekeeping function" was suggested by plaintiffs' counsel during oral argument before this court in the Wischer case. Wischer v. Mitsubishi Heavy Indus. Am., Inc., 2005 WI 26, ___Wis. 2d ___, ___ N.W.2d ___. This "added requirement" is illusory as well. When asked what standards the circuit court should follow in administering its "gatekeeping function" and determining when punitive damages would be appropriate, counsel for the Wischer plaintiffs responded: "You'll know it when you see it."
. This low threshold, focusing on "rights" in the abstract rather than the defendant's knowledge of the harm, has constitutional implications. The United States Supreme Court has stated: "Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice . . . of the conduct that will subject him to punishment[.]" BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996). Given the frequency with which individuals assert--and courts are apt to recognize--new "rights," one has to wonder how anyone can be put on fair notice as to what conduct subjects him to a punitive damage award under the majority's interpretation of the statute. Certainly, a "you'll know it when you see it" standard does not satisfy this basic constitutional requirement.
II.
. As to the second question certified by the court of appeals, I would conclude that, in accordance with § 895.85(1)(c), the defendant's conduct must be directed at the person seeking to recover punitive damages. This court recently reaffirmed the importance of adhering to the text of a statute:
Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. . . . It is the enacted law, not the unenacted intent, that is binding on the public.
State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, , 271 Wis. 2d 633, 681 N.W.2d 110. To that extent, this court has stated: "Words that are defined in the statute are given the definition that the legislature has provided." Wisconsin Citizens Concerned for Cranes and Doves, 270 Wis. 2d 318, (citing Beard v. Lee Enters., 225 Wis. 2d 1, 23, 591 N.W.2d 156 (1999)).
. Wisconsin Stat. § 895.85(3) provides: "The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously t
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