Wisconsin Lawyer
Vol. 79, No. 3, March 2006

Supreme Court Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Criminal Procedure Insurance Motor Vehicle Law

Probate Public Employees

Criminal Procedure

Eyewitness ID - Experts - Polygraph Offers

State v. Shomberg, 2006 WI 9 (filed 31 Jan. 2006)

The defendant was convicted of sexual assault and related offenses despite his contention that he was not the assailant. The court of appeals affirmed the conviction.

The supreme court, in a decision authored by Justice Crooks, affirmed. First, the supreme court held that the trial court properly excluded expert testimony on eyewitness identification that the defendant attempted to introduce during his 2002 bench trial. Although case law (State v. Dubose, 2005 WI 126) and legislation in 2005 have imposed restrictions on the type of identification procedures used in this case, the trial judge (in 2002) reasonably concluded that the defendant's expert would add little of value to what the judge knew and understood about the limitations of eyewitness identifications. The supreme court did note that "[w]ere this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory" (¶ 17). Nonetheless, any error in the evidence's exclusion was harmless beyond a reasonable doubt.

Second, the supreme court held that exclusion of the expert testimony did not violate the defendant's constitutional right to present a defense. Applying State v. St. George, 2002 WI 50, the court held that the defendant "failed to establish that the expert eyewitness testimony was necessary to his case" (¶ 28).

Third, the supreme court held that the trial court properly excluded testimony about the defendant's offer to take a polygraph. Tightly-drawn case law permits introduction of evidence concerning such offers. But here, the record failed to establish that the defendant actually "offered to take a polygraph examination, as opposed to agreeing to take one." The defendant also failed to establish a second requirement: that he [erroneously] "believed the results of the polygraph would be admissible in court" (¶ 41).

Chief Justice Abrahamson dissented on the ground that the proffered expert testimony would have assisted the trial judge in evaluating the eyewitness testimony, particularly as it pertained to the lineup's reliability (see ¶ 63). Justice Butler also dissented, on the ground that there was a "significant failure of communication between the trial court and defense counsel" regarding the expert testimony (¶ 66).

Authority of Supreme Court to Sua Sponte Use Discretionary Reversal Power

State v. Maloney, 2006 WI 15 (filed 10 Feb. 2006)

The defendant was convicted of first-degree intentional homicide, arson, and mutilation of a corpse, all in connection with the death of his wife in 1998. He sought postconviction relief on the ground that he had been denied effective assistance of counsel. The circuit court denied the motion, and the court of appeals affirmed. The supreme court granted review.

Shortly before oral argument in the supreme court, the Wisconsin Department of Justice provided transcripts to the court from a CBS news program. The program dealt with the investigation of this case and the prosecution thereof by a special prosecutor who was convicted in 2004 of misconduct in office for accepting bribes in 22 cases he had prosecuted between 1998 and 2000. The supreme court ultimately concluded that the defendant failed to carry his burden of demonstrating ineffective assistance of his trial counsel. See State v. Maloney, 2005 WI 74. However, because of the information derived from the news program, the court chose to retain jurisdiction to consider two questions that it had raised sua sponte: "[w]hether this court has authority to remand to the circuit court for a motion for post-conviction relief based upon the interest of justice" even though no party had raised or made this argument; and 2) "whether this court should act upon that authority [in this case] and remand" for that purpose (¶ 1).

In this decision the supreme court answered these two questions. In a unanimous opinion authored by Justice Butler, the court concluded that it "has the authority to use its power of discretionary reversal to remand to the circuit court for a motion for postconviction relief in the interest of justice, notwithstanding the fact that the argument was raised by this court sua sponte" (¶ 2). It further concluded that the defendant failed to allege sufficient material facts, and no such facts currently exist within the record, to warrant a remand for an evidentiary hearing in the interest of justice. The court said that the defendant did not allege sufficient material facts that link the special prosecutor's misconduct in the handling of other cases to the handling of evidence in this case (see ¶ 34). Also, the court could not conclude that the special prosecutor's misconduct in other cases, without more, demonstrates misconduct in this case (see ¶ 40).

The court concluded the opinion by noting that "though [the defendant] has failed to allege sufficient material facts to support allegations that [the prosecutor] acted unlawfully in his prosecution of [the defendant], if any current or future investigations uncover evidence that [the prosecutor's] actions in prosecuting [the defendant] constituted misconduct, [the defendant] may file his motion to the trial court raising such misconduct at that time" (¶ 41).

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Insurance

Primary Insurer - "Other Insurance" - UM Coverage

Progressive N. Ins. Co. v. Hall, 2006 WI 13 (filed 7 Feb. 2006)

Edward was injured in an automobile accident that occurred while he was a passenger in a car driven by his brother, Richard. The other vehicle was uninsured, Edward was insured by General Casualty, and Richard was covered under a policy issued by Progressive Northern. Progressive brought a declaratory judgment action against General Casualty seeking a determination that General Casualty was the primary insurer and therefore was obligated to provide uninsured motorist (UM) coverage to Edward. The circuit court ruled against Progressive, and the court of appeals affirmed.

The supreme court, in an opinion written by Justice Bradley, affirmed. "The insurance companies dispute which of them is primary, that is, which is liable to pay the first $100,000 under the uninsured motorist coverage set forth in their respective policies. The issue before [the supreme court] is whether Progressive's `other insurance' clause, which provides that uninsured motorist coverage is primary for a named insured but excess for certain occupancy insureds, violates Wis. Stat. § 632.32(3)(a) (2003-04)" (¶ 1). The court first determined that "the question of whether § 632.32(3)(a) applies to uninsured motorist coverage does not turn on whether such coverage is categorized as liability insurance or indemnity insurance" (¶ 13). "[E]very policy insuring against liability under § 632.32 must include uninsured motorist coverage. Section 632.32(3)(a) plainly applies to every policy subject to § 632.32. Thus, we conclude that § 632.32(3)(a) applies to uninsured motorist coverage, regardless of whether such coverage is categorized as liability or indemnity insurance" (¶ 15).

Nor was the court persuaded by Progressive's reliance on Wis. Stat. section 632.32(5)(e). "In order for subsection (5)(e) to apply to a term in an insurance policy, there is a threshold question as to whether that term is an `exclusion.' Here, we determine that Progressive cannot cast its `other insurance' clause as an `exclusion' under (5)(e) in order to save the clause from the requirements of subsection (3)(a) of the statute" (¶ 26). The "other insurance" clause defines which coverage is primary and which coverage is excess between policies (see ¶ 27). "An exclusion, in contrast, determines whether a particular policy provides coverage at all. It is a provision that eliminates coverage under a particular policy where, were it not for the exclusion, coverage would have existed under that policy" (¶ 28).

The court then turned to the strictures of section 632.32(3)(a), which requires that "coverage provided to the named insured must apply `in the same manner and under the same provisions' to any person riding in any motor vehicle described in the policy" (¶ 34). The court held that the other-insurance clause failed because it "operates so that Progressive's policy provides primary coverage for a named insured while providing only excess coverage for an occupancy insured who is not also a `relative' as defined in the policy. . . . Thus, the policy does not provide uninsured motorist coverage for `any person using' a vehicle in the same manner as such coverage is provided for the named insured" (¶ 35).

Finally, the court held that the "proper remedy" was "to treat Progressive's policy as if Edward, the occupancy insured in this case, had the same coverage as Richard, the named insured. . . . We therefore treat Progressive's policy in this case as if the uninsured motorist coverage is primary for Edward, just as it would have been for Richard. General Casualty's uninsured motorist coverage is excess in this case. Accordingly, we agree with the court of appeals that Progressive must pay the first $100,000 of any uninsured motorist coverage to which Edward is entitled" (¶ 38).

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Motor Vehicle Law

Operating While Under the Influence of an Intoxicant - Meaning of "Operate"

Village of Cross Plains v. Haanstad, 2006 WI 16 (filed 14 Feb. 2006)

The defendant and two companions were at a bar. After leaving the bar, they got into the defendant's vehicle. One of the companions drove the car to a public park while the defendant sat in the front passenger seat. Once at the park the defendant moved into the driver's seat and the driver moved to the front passenger seat. The vehicle's engine was left running and the headlights were left on. It was undisputed that the defendant never touched any of the vehicle's controls. A police officer approached the car and, after conducting an investigation at the scene, arrested the defendant for operating while under the influence. At trial the circuit court acquitted the defendant. On appeal the court of appeals reversed the circuit court. In a unanimous decision authored by Justice Butler, the supreme court reversed the court of appeals.

The term "operate" in the OWI statute means "the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion." Wis. Stat. § 346.63(3)(b). The supreme court concluded that the defendant did not "operate" the vehicle within the plain meaning of the statutory definition. Said the court, "... [the defendant] never physically manipulated or activated any of the vehicle's controls. She did not turn on or turn off the ignition of the car. She did not touch the ignition key, the gas pedal, the brake, or any other controls of the vehicle. [She] simply sat in the driver's seat with her feet and body pointed towards the passenger seat" (¶ 16).

In reaching the conclusion that the defendant did not "operate" the vehicle, the court distinguished County of Milwaukee v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980). In that case officers found the defendant sleeping alone behind the wheel of his pickup truck, which was parked partially on the right emergency ramp of an interstate highway. The keys were in the ignition, the motor was running, the lights and heater were on, and the transmission gear was in the "park" position. There was no question that the defendant had started the engine. There also was evidence that the defendant had recently operated the vehicle. On these facts Proegler was found to have "operated" the vehicle. In the present case the defendant never physically manipulated or activated the controls necessary to put the vehicle in motion, and there was no evidence that she had recently operated the vehicle.

Justice Wilcox did not participate in this case.

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Probate

"Washington Will" - Compliance with Confirmation Procedures Outlined in Wis. Stat. section 867.046(1m)

Maciolek v. City of Milwaukee Employes' Retirement Sys. Annuity & Pension Bd., 2006 WI 10 (filed 31 Jan. 2006)

The plaintiff and her husband executed a marital property agreement, pursuant to Wis. Stat. section 766.58 (1997-98), and created a revocable trust. The marital property agreement contained a "Washington Will" provision, which was intended to provide for the direct transfer, without any probate proceeding, of property that would otherwise require probate. See Wis. Stat. § 766.58(3)(f). The husband was employed by the city of Milwaukee until his retirement on June 1, 1981. As a retired employee, the husband was a beneficiary of certain funds under a global pension settlement (GPS) managed by the City of Milwaukee Employees' Retirement System Annuity and Pension Board (MERS). The GPS constituted the settlement of various lawsuits relating to pension benefits payable by MERS to city of Milwaukee employees. Under the terms of the settlement agreement, the husband was entitled to $27,422.24 in benefits. The GPS benefits were titled exclusively in the husband's name, and the consent to the GPS did not provide for the designation of a beneficiary.

The husband died on May 28, 2001, before his GPS benefits could be distributed. MERS then wrote to the plaintiff advising her of the procedures she could use to facilitate payment of the husband's GPS benefits. On April 24, 2002, the plaintiff advised MERS that she would not be instituting a probate proceeding and that she intended to rely on the Washington Will provision in the marital property agreement. Pursuant to the procedures outlined in Wis. Stat. section 867.046(2), she subsequently submitted to MERS a Form HT-110 and a certified copy of the marital property agreement.

On July 21, 2002, MERS advised the plaintiff that it could not accept the Form HT-110 as evidence of her ownership of the GPS benefit because the GPS benefits did not qualify for transfer under Form HT-110 pursuant to section 867.046(2). MERS then presented two statutory options for transfer of ownership of the GPS benefits based on the plaintiff's reliance on the Washington Will provision. The plaintiff could either provide a certificate of summary confirmation of interest in property pursuant to Wis. Stat. section 867.046(1m) or provide a verified statement, under Wis. Stat. section 865.201, from the personal representative of the husband's estate.

The plaintiff responded by filing suit against MERS for payment to her of the husband's GPS benefits. MERS moved for summary judgment, requesting dismissal of the suit on the ground that the plaintiff was required to obtain a certificate issued under Wis. Stat. section 867.046(1m) in order for MERS to legally transfer the GPS benefits to the trust under the Washington Will provision. Section 867.046 outlines procedures for summary confirmation of an interest in property. The circuit court denied the summary judgment motion of MERS and instead granted summary judgment to the plaintiff. The court indicated that the nonprobate transfer agreement in the marital property agreement complied with the law, and that use of Form HT-110 was the proper procedure to transfer this asset. MERS appealed. The court of appeals reversed the circuit court's decision, and held that MERS could require the plaintiff to comply with the confirmation procedures in section 867.046(1m). See 2005 WI App 74.

In a unanimous decision authored by Justice Crooks, the supreme court affirmed the court of appeals. The supreme court concluded that "in the absence of an agreement between a holder of the property, such as MERS, and the person seeking its transfer, such as [the plaintiff], a holder may require compliance with the statutory provisions outlined in Wis. Stat. § 867.046(1m) to effect a transfer of the type of property at issue here, despite a `Washington Will' provision in a marital property agreement" (¶ 31). The court said that the plaintiff could not utilize section 867.046(2), which allows confirmation of interest in property by way of a Form HT-110, because the GPS benefits are neither survivorship marital property nor any of the other types of property enumerated in section 867.046(2). (The GPS benefits were not "survivorship marital property" because they were titled solely in the husband's name, and they were not reclassified as "survivorship marital property" in the marital property agreement. The court noted that it was significant that the plaintiff was not designated, and could not be designated, as the beneficiary of the husband's interest in the GPS funds (see ¶ 29).)

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Public Employees

Wisconsin Retirement System - Single Cash Sum Death Benefit under Wis. Stat. section 40.71(3) - Interest Between Date of Death and Date of Payment to Beneficiary

Fazio v. Department of Employee Trust Funds, 2006 WI 7 (filed 26 Jan. 2006)

Anthony Fazio (the husband) was a Wisconsin Retirement System (WRS) participant and was actively employed as a professor at the University of Wisconsin-Milwaukee until he died on Jan. 2, 1999. The wife did not file for death benefits until November 2000. On Dec. 1, 2000, a $507,395.35 death benefit was paid to her. This amount was calculated under Wis. Stat. section 40.73(1)(c) and was based on the amount in the husband's account as of Jan. 3, 1999, one day after his death. Between Jan. 3, 1999 and Dec. 1, 2000, the death benefit was held in the fixed retirement investment trust account and, although the funds in the account earned interest, the Department of Employee Trust Funds (DETF) paid no interest on the death benefit when the benefit was paid to the wife on Dec. 1, 2000. (Editors' Note: The benefit was paid to the wife under Wis. Stat. section 40.73(1)(c) because that section provided for a larger benefit than the standard benefit payment provided for under section 40.73(1)(am) (see ¶ 4 n.6). The latter amount is calculated to include interest from the date of death through the first day of the month in which the death benefit is approved.)

The wife then filed suit in the circuit court, demanding that the interest be paid. She argued that because the DETF earned interest on the death benefit until the time she applied for the benefit and then distributed the benefit but kept the interest for its own purposes, an unconstitutional taking occurred. The parties agreed that the statutes neither explicitly allow nor explicitly disallow the payment of interest to a beneficiary under these circumstances.

After this matter was certified as a class action, the circuit court granted summary judgment to the plaintiff. It concluded that the DETF had taken property for public use without just compensation in violation of article I, section 13 of the Wisconsin Constitution by failing to include interest or earnings accrued from the date of the participant's death until payments were made to the beneficiary under section 40.73(1)(c). The court of appeals reversed the order of the circuit court, holding that there was no taking because the wife did not acquire a property interest in a single cash sum death benefit under Wis. Stat. section 40.73(1)(c) until she applied for a death benefit as required by Wis. Stat. section 40.71(3). See 2005 WI App 87.

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals. It agreed with the court of appeals that "no unconstitutional taking occurred because a beneficiary does not acquire a property interest in a single cash sum death benefit under § 40.73(1)(c) until the beneficiary applies for a death benefit as required by § 40.71(3)" (¶ 8).

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