Administrative Law
Licenses – Hearing
Jamerson v. Department of Children & Families, 2013 WI App 7 (filed 10 Jan. 2013)
Holding: Under Wisconsin’s new caregiver law, the licensee was entitled to a hearing as provided by Wis. Stat. section 227.44 after the state revoked her license based on a 20-year-old food-stamp-crime conviction.
Summary: The Department of Children and Families (the department) revoked Jamerson’s child care license under terms of the “new caregiver law,” Wis. Stat. section 48.685(5)(br), which imposes a lifetime ban on licenses for individuals who have been convicted of specified predicate offenses. Jamerson’s revocation was based on a food-stamp-crime conviction in the early 1990s. Jamerson appealed but the department affirmed without a hearing. The circuit court affirmed this decision. The court of appeals reversed, however, ruling that Jamerson was entitled to a hearing. See 2012 WI App 32.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court affirmed the court of appeals in an opinion, authored by Chief Justice Abrahamson, that addressed three issues. First, the court held that the department’s determination, as a matter of law, that Jamerson’s conviction involved fraudulent activity in a public benefits program was entitled to due-weight deference. Great-weight deference was inappropriate because the department had no prior experience interpreting the new caregiver law despite its experience with child care licenses generally (see ¶ 45).
Second, the text of Wis. Stat. sections 48.72 and 227.44 granted Jamerson the right to the type of hearing provided for contested cases (see ¶ 56). The court declined to address the authority of an administrative law judge to dismiss an appeal without convening a section 227.44 hearing (see ¶ 57).
Third, although administrative rules do not provide for a motion to dismiss, they do provide for summary judgment procedures, which the court applied here (see ¶ 65). The record, however, revealed disputed issues of material fact regarding the nature of the prior convictions and whether the convictions were of a type to justify a lifetime ban on Jamerson, as mandated by the new caregiver law. The court remanded the case for a hearing.
Justice Roggensack concurred, joined by Justice Ziegler and Justice Gableman. After oral argument, the department conceded that a disputed issue of material fact existed regarding the nature of Jamerson’s prior convictions. The concurring justices suggested how the hearing on remand might be conducted, including with the use of judicial notice for the earlier convictions.
Civil Procedure
Claims Against State – Notice of Claim – Requirement That Notice Be “Sworn To”
Estate of Hopgood v. Boyd, 2013 WI 1 (filed 3 Jan. 2013)
Holding: Notices of claim in an action against an agent of the state were properly sworn to even though they did not include a statement by the notaries that the notices were “sworn to” before them.
Summary: In this negligence action arising out of an automobile accident, the petitioners (the claimants) sued Boyd, who, they claimed, was acting as an agent or representative of the state of Wisconsin at the time of the crash. The claimants thus were required to serve a notice of claim on the attorney general under Wis. Stat. section 893.82(3). Boyd moved for dismissal on the ground that the notices of claim were not properly “sworn to” as required by section 893.82(5). He argued that the notices did not contain a statement by the notaries that they administered the oaths but only included a statement by the claimants to the same effect.
The claimants replied that although the notary blocks did not contain statements by the notaries that the notices were “sworn to” before them, the text of the notices clearly stated that the notaries had in fact administered the oaths. The circuit court concluded that a notice of claim must contain a statement by the notary that the oath was taken and thus granted summary judgment in Boyd’s favor. The court of appeals summarily affirmed.
In a unanimous decision authored by Justice Bradley, the supreme court reversed. The court began its analysis by observing that section 893.82(5) does not set forth any definition of “sworn to by the claimant” and does not indicate whether it is the claimant or an authorized person who must show on the face of a notice of claim that it was sworn to (see ¶ 20).
The court then turned to Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995) to resolve the issue in this case. “We conclude that Kellner sets forth two requirements in order for a notice of claim to be properly ‘sworn to’ under Wis. Stat. § 893.82(5). First, a formal oath or affirmation must be taken by a claimant. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred” (¶ 3) (citations omitted). (The court withdrew language from Newkirk v. Dept. of Transportation, 228 Wis. 2d 830, 598 N.W.2d 610 (Ct. App. 1999) to the extent that Newkirk appears to expand the Kellner requirements (see id.)).
Turning to the facts of this case, the court concluded that “the notices … meet the two Kellner requirements and are therefore properly ‘sworn to’ under Wis. Stat. § 893.82(5). Nevertheless, in the future, to promote certainty and to avoid unnecessary litigation, we urge claimants to file notices of claims using a jurat in which the notary sets forth that the notice was ‘sworn to’ or affirmed before the notary” (¶ 53). (“‘Jurat’ is the name given to the notary’s written certificate, which should appear after the signature of a person who has given an oath, or has made a sworn statement” (¶ 4 n.4) (citation omitted)).
Criminal Procedure
Search and Seizure – Community-Caretaker Doctrine
State v. Gracia, 2013 WI 15 (filed 31 Jan. 2013)
Holding: Police entry of the defendant’s bedroom was justified under the community-caretaker exception to the warrant requirement.
Summary: The police department received a report of a downed traffic signal that was impeding vehicles. The signal, located on a median, had been completely ripped from the ground and was lying half in the median and half in the road. It appeared that a vehicle had struck the signal and then left. Police officers found a mangled license plate lying next to the damaged traffic signal; the license plate was listed as belonging to a 1999 Buick Regal. After some investigation, the police went to a trailer home where Gracia (the defendant) lived, and they found the Buick Regal in the driveway. The car’s front license plate was missing, there was significant front-end damage with pieces of the front bumper missing, and the car’s front end was caved in, as if the car had struck a pole.
When the police officers arrived at the trailer home, the lights were off inside. No one answered the door when the officers knocked. As they were about to leave, a pickup truck appeared. The truck was driven by Jaime Gracia, who told police he was the defendant’s brother and lived at that residence with the defendant. Jaime stated that his brother should be inside. The officers asked if they could come inside, explaining that they were worried about the defendant’s potential injuries and that they needed to make sure he was okay. Jaime asked them to wait outside and went into the trailer by himself.
After several minutes, Jaime allowed the officers into the trailer and told them that his brother had locked himself in his bedroom. Jaime brought the officers to the bedroom door. The defendant yelled at the officers to “go away.” Jaime then “put his shoulder through the door” and opened it. Once the door was open, the officers entered the room and made contact with the defendant, who was lying on the bed. The officers observed the defendant’s bloodshot eyes and slurred speech and the strong odor of intoxicants emanating from him. He eventually admitted to driving the Buick. The officers then arrested the defendant for operating a motor vehicle while intoxicated.
The defendant moved to suppress the evidence of his intoxication obtained after the officers entered his bedroom. At the suppression hearing, the state argued that the community-caretaker exception to the warrant requirement applied. The circuit court agreed and denied the suppression motion. The defendant entered a plea of no contest to fourth-offense operating while intoxicated (OWI) and then appealed. In an unpublished decision, the court of appeals affirmed the circuit court’s denial of the suppression motion.
In a majority decision authored by Justice Crooks, the supreme court affirmed. It held that the entry into the defendant’s bedroom was lawful under the community-caretaker exception to the warrant requirement. (There was no dispute about the original entry of the trailer because it was with the consent of the defendant’s brother and without any objection.)
Application of the community-caretaker exception is scrutinized using a three-step test: 1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; 2) if so, whether police officers were exercising a bona fide community-caretaker function; and 3) if so, whether the public interest outweighs the intrusion on the privacy of the individual such that the community-caretaker function was reasonably exercised within the context of a home (see ¶ 15). See State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592.
In this case, the parties did not dispute that the entry of the bedroom constituted a search (see ¶ 16). Moving to the second step, the court concluded that the officers had an objectively reasonable basis to believe Gracia was hurt and in need of assistance, so they were exercising a bona fide community-caretaker function (see ¶ 21).
In the third step of the analysis, which balances the public interest and the privacy of the individual, courts consider 1) the degree of the public interest and the exigency of the situation; 2) the attendant circumstances surrounding the search, including the time, the location, and the degree of overt authority and force displayed; 3) whether an automobile is involved (a factor not relevant in the present case); and 4) the availability, feasibility, and effectiveness of alternatives to the type of intrusion actually accomplished (see ¶ 15).
In this case, the court concluded that the public has a substantial interest in ensuring the safety of drivers involved in serious accidents (see ¶ 25), the circumstances of the entry (police officers entered the home with the brother’s consent, the brother broke open the bedroom door, and the brother, a seemingly concerned cotenant, escorted the officers throughout the episode) weighed in favor of the reasonable exercise of the community-caretaker function (see ¶ 26), and the alternative of having the brother evaluate and monitor the defendant’s safety apart from the police was of questionable effectiveness (see ¶ 27). The community-caretaker function was thus reasonably exercised by the police “because the public interest in the search outweighed [the defendant’s] privacy interests” (¶ 30).
Another issue in this case was whether the circuit court properly rejected the defendant’s collateral attack on a 1998 OWI conviction (his second OWI), which was used to enhance the penalties he faced for the current offense. The supreme court held that despite a technically deficient plea colloquy (the judge did not engage the defendant in a colloquy about the ways that an attorney might be helpful to him), the defendant knowingly, intelligently, and voluntarily waived his right to counsel before he pleaded no contest to the OWI in 1998. Said the court, “[h]e understood the difficulties and disadvantages of self-representation. He had familiarity with the role of lawyers, and he made a cost-benefit decision not to hire an attorney because he was guilty and the district attorney offered him the minimum penalty” (¶ 41).
Chief Justice Abrahamson filed a dissenting opinion. Justice Prosser filed a dissenting opinion that was joined by the Chief Justice and by Justice Bradley.
Confessions – Voluntariness
State v. Lemoine, 2013 WI 5 (filed 8 Jan. 2013)
Holding: The confession of the defendant was voluntary under the totality of the circumstances.
Summary: The issue before the supreme court in this case was whether the statements of defendant Lemoine, given during a noncustodial interview at the sheriff’s department that lasted 75-80 minutes, were voluntary under the totality of the circumstances. The well-established test for voluntariness balances the defendant’s personal characteristics against pressures imposed by law enforcement officers to determine if the pressures exceeded the defendant’s ability to resist. See State v. Clappes, 136 Wis. 2d 222, 236, 401 N.W.2d 759 (1987). In a majority decision authored by Justice Crooks, the supreme court held that the statements obtained from the defendant were voluntary.
Looking first at the defendant’s characteristics, the court indicated that “[n]othing about Lemoine made him particularly vulnerable; he was 22 years old, had earned a high school equivalency diploma (HSED), held a job as a truck driver, was familiar with one of the interviewing officers, and was assertive enough to voice his discomfort with a female officer’s presence, a concern the police accommodated” (¶ 37).
As for the conduct of the interrogator, the court concluded as follows. First, the inducements the police officer offered were not sufficient to make the statements involuntary. The officer promised that the defendant would not have to spend the night in the jail if he gave the true story about an allegation that he had sexually assaulted a child. The promise was kept and, the court said, was not coercive (see ¶ 28).
The officer also offered to keep the case out of the public forum and newspapers in exchange for cooperation. There is no evidence that the officer did anything to get the media involved in this case; the officer “kept his promise so that statement does not weigh against voluntariness here” (¶ 29). The officer “suggested that cooperating with the district attorney would keep this case out of court and out of the public forum – which is true to an extent. Agreeing to a plea limits the number of court appearances in a case, essentially keeping the case out of the public forum much more than otherwise might occur” (id.).
Second, the officer told the defendant that in jail he would not be able to make any phone calls. The defendant complained that this implied he would be cut off from communication, including communication with a lawyer. This was “technically a misrepresentation” and thus weighed toward a finding of involuntariness, but “in the context of the whole interview, [it does not] suffice to make Lemoine’s statements involuntary” (¶ 32).
Third, the officer did exaggerate the strength of the evidence against the defendant. “[E]xaggerations of evidence against a defendant are the least coercive police deceptions because they can be countered with the knowledge of the person being questioned. … Here, the detectives stated that extensive tests had been done and that it probably would not look good for Lemoine when the results came in. This information would not have caused Lemoine to make an involuntary statement because Lemoine could check any exaggerations with his own memory of the event and determine whether the interviewer was lying” (id.).
Fourth, the police did not give Miranda warnings to the defendant. The warnings were not required because the defendant was not subjected to custodial interrogation. But the lack of warnings is relevant to the voluntariness analysis (see ¶ 33).
In sum, the supreme court concluded that when balanced against the defendant’s characteristics, the tactics the police used did not rise to the level of being coercive (see ¶ 3). It was therefore not error for the circuit court to admit the defendant’s voluntary statements at his trial.
Chief Justice Abrahamson filed a dissenting opinion.
Newly Discovered Evidence – New Trials
State v. Avery, 2013 WI 13 (filed 30 Jan. 2013)
Holding: The defendant was not entitled to a new trial based on a newly discovered technique regarding digitally enhanced photographs.
Summary: A jury convicted Avery of several robberies in the mid-1990s. As evidence, the state relied on the testimony of several eyewitnesses as well as the defendant’s various confessions, including his “apology” and a plaintive call to his mother. A poor-quality surveillance video was also introduced into evidence, although it was used for “context” (what happened), not for identification. At trial Avery offered an alibi defense.
In 2007, Avery brought a motion for postconviction relief based on a digital-enhancement technique, “photogrammetry,” that his expert applied to the surveillance video. According to the defense expert, Avery was several inches taller than the robber in the video. A prosecution expert contradicted the defense expert. The circuit court denied Avery’s motion for a new trial. The court of appeals reversed Avery’s conviction, finding a reasonable probability of a reasonable doubt. See 2011 WI App 148.
The supreme court reversed the court of appeals in an opinion, written by Justice Ziegler, holding that there was no reasonable probability that a jury, “looking at both the evidence presented at trial and the new digital photogrammetry evidence, would have a reasonable doubt as to Avery’s guilt” (¶ 24). It was undisputed that the four prongs of the newly discovered evidence test had been met (see ¶ 31).
The dispute centered on the significance of the photogrammetry analysis. Essentially, the photogrammetry evidence did not “str[ike] at the heart of the State’s evidence at trial” (¶ 36). In a footnote the court noted a split over the meaning of “reasonable probability,” but ruled that Avery was not entitled to a new trial even under the more favorable approach he advanced (see ¶ 32). The court also rejected Avery’s contention that he was entitled to a new trial in the interest of justice, distinguishing earlier cases that raised substantial problems with key evidence (for example, hair samples, experts who lied) relied on by the state. The majority opinion closed with the words that “[a] new trial is not warranted every time new technology affects evidence admitted at an earlier trial” (¶ 57).
Justice Prosser concurred, writing separately to explain that the application of Wis. Stat. section 751.06 or 752.35 to postconviction motions under section 974.06 will “seriously jeopardize the high standards and finality in § 974.06” (¶ 60).
Justice Bradley dissented, joined by Chief Justice Abrahamson. The dissent criticized the majority for subverting the court of appeals’ discretion to grant new trials in the interest of justice.
Insurance
UIM – Rental Cars – Self-Insured
Bethke v. Auto-Owners Ins. Co., 2013 WI 16 (filed 1 Feb. 2013)
Holding: A rental car from a self-insured company was an “underinsured” vehicle for purposes of underinsured motorist (UIM) coverage.
Summary: The driver of a rental car crossed the center line, causing his vehicle to collide head on with the plaintiffs’ car. The crash killed both drivers and severely injured the surviving plaintiff. The rental car driver had no insurance. Avis, the rental car company, paid $50,000 to the plaintiffs, the maximum amount payable under Wis. Stat. section 344.51(1m) for injuries caused by the negligent operation of a rental car. The plaintiffs then sought to recover UIM coverage of $500,000 from Auto-Owners Insurance Co., the insurer of the deceased driver (Kathryn). Auto-Owners denied the UIM claim because Avis was self-insured, and thereby excluded by terms of the policy from the UIM category. The circuit court granted summary judgment to Auto-Owners, finding that Avis was “unambiguously” a “self-insurer” and thus did not fall within the policy’s definition of “underinsured automobile” (¶ 13). In an unpublished decision, the court of appeals also rejected the plaintiffs’ UIM arguments.
The supreme court reversed in an opinion written by Justice Bradley. Essentially, the majority found that the term “self-insured” was ambiguous; thus, it interpreted the policy in favor of coverage. Avis was statutorily liable to pay the $50,000 maximum regardless of its fault or whether it was insured or self-insured. Other statutes, especially Wis. Stat. section 344.16, required the Department of Transportation to ensure that so-called self-insurers are able to satisfy judgments.
The court found a “disconnect” between section 344.51 and section 344.16 (see ¶ 37). It was unclear that a reasonable insured would understand that a car rental company whose liability is limited by section 344.51 was also a self-insurer as defined by the policy (see ¶ 39). “A car rental company that is statutorily liable is not meant to provide compensation to injured accident victims beyond a minimal amount. In light of those purposes, a reasonable insured would expect their UIM coverage to fill in the gap between the statutory liability of a car rental company and their coverage limit absent a clear exclusion limiting coverage. For the reasons we discuss above, the exclusion on which [Auto-]Owners relies is unclear” (¶ 44).
Moreover, interpreting the term to exclude self-insured rental vehicles would lead to an absurd result. As applied to these “unique facts,” it “simply makes no sense” to deny UIM coverage (¶ 45).
Dissenting, Chief Justice Abrahamson was joined by Justice Crooks and Justice Gableman. Expressing their sympathy with the result reached by the majority, the dissenters found no disconnect and concluded that the majority was rewriting the insurance policy to create coverage where none exists. The UIM coverage carried high limits and a very low premium, which explained the numerous exceptions to coverage.
Public Records
Public Records Law – Contractors’ Records Provision
Juneau Cnty. Star-Times v. Juneau Cnty., 2013 WI 4 (filed 8 Jan. 2013)
Holding: Invoices submitted by attorneys representing the county in a lawsuit were subject to disclosure under the contractors’ records provision of the Public Records Law. The court did not address issues that might arise under the lawyer-client privilege.
Summary: A private law firm represented Juneau County in a lawsuit relating to a sheriff’s deputy. The county’s insurer retained the law firm. The law firm sent the insurance company invoices for its legal services performed on the county’s behalf. A newspaper sought access to those invoices pursuant to the contractors’ records provision of the Public Records Law. See Wis. Stat. § 19.36(3). The circuit court ruled the provision did not apply but the court of appeals reversed, ordering the county to disclose unredacted copies. See 2011 WI App 150.
The supreme court affirmed in an opinion written by Chief Justice Abrahamson. The majority used “somewhat different reasoning” than did the court of appeals (¶ 80). The key was the “tripartite relationship” among the county, the insurer, and the law firm (¶ 10).
“[T]he invoices were produced or collected during the course of the law firm’s representation of the County and the insurance company pursuant to the liability insurance policy; the liability insurance policy is a contract entered into by the County and the insurance company. Thus, the requirements of Wis. Stat. § 19.36(3) have been met and § 19.36(3) governs the accessibility of the invoices” (¶ 13). The court further observed that to “characterize the invoices as solely private records under an agreement between the insurance company and the law firm is to turn a blind eye to the realities of the relationship between the County, the insurance company, and the law firm in the present case” (¶ 52). The court expressly declined to address questions relating to lawyer confidences, lawyer-client privilege, or work product (see ¶ 15).
Justice Roggensack concurred in the majority opinion, writing separately to emphasize that this decision does not alter rules governing confidences, lawyer-client privilege, or work product (see ¶ 85).
Justice Prosser dissented, joined by Justice Ziegler and Justice Gableman, based on the “serious negative ramifications” of the majority’s opinion. Despite the majority’s declarations that its opinion in no way affects doctrine governing work product, lawyer-client privilege, or client confidences, the dissent contended that the majority’s analysis augers otherwise.
Justice Ziegler filed a separate dissent in which she emphasized her departure from Justice Prosser’s characterization of the majority opinion as requiring disclosure regardless of the lawyer-client privilege (see ¶ 131).
