'97 Significant Court Decisions: Highlights of the 1997 Wisconsin Supreme Court and Court of Appeals Decisions

By Daniel W. Hildebrand

| Torts | Insurance | Children | Guardianship | Corporations | Criminal Law | Other Significant Decisions |

Torts

Probably the most difficult decision was Estate of Makos v. Masons Health Care Fund¹ concerning the constitutionality of the statute of repose for actions against health-care providers. The statute of repose bars medical malpractice actions commenced more than five years from the date of the alleged act or omission without regard to the date of discovery.² The claim arose more than five years after the plaintiff knew or had reason to know that she was injured as a result of medical malpractice. The court, in a 4-2 vote, reversed the trial court's decision dismissing the claim.

Justice Steinmetz held the statute unconstitutional beyond a reasonable doubt because it violates procedural due process rights under the Fourteenth Amendment and the right to a remedy guaranteed by Article I, Section 9 of the Wisconsin Constitution. Justice Crooks, after summarizing precedent, concurred that the statute violated Article I, Section 9, concluding that it deprived the plaintiffs of any possibility of recovery even though a legal wrong may have been committed. Justices Bablitch and Wilcox, concurring, held that it was not necessary to reach constitutional issues because alleged malpractice concerning a "diagnosis" does not come within the terms of the statute. Justice Bradley and Chief Justice Abrahamson, although believing that the statute produces a regrettably harsh result, concluded that the plaintiff failed to demonstrate its unconstitutionality beyond a reasonable doubt. They also disagreed with the concurring opinion that the statute did not apply to negligent diagnosis claims.

In Jacque v. Steenberg Homes Inc.³ the court upheld a $100,000 verdict for punitive damages in an intentional trespass case where the jury awarded the plaintiffs only nominal damages of $1. The intentional trespass occurred when the defendant moved a mobile home across the plaintiffs' land knowing that the plaintiffs objected.

Wisconsin case law generally holds that there must be compensatory damages in order to allow for the recovery of punitive damages. However, the court has never directly addressed the issue as to whether nominal damages can support a punitive damage award in the case involving intentional trespass to land. An individual landowner's interest in protecting his or her land from trespass is paramount. The law recognizes that actual harm occurs in every trespass. Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowners. When landowners have confidence in the legal system, they are less likely to resort to "self-help" remedies.

The $100,000 punitive damage award was not excessive. The defendant's intentional trespass reveals an indifference and a reckless disregard for the law and for the rights of others. Despite numerous unambiguous refusals by the plaintiffs to allow the defendant access to their land, the defendant moved the mobile home across plaintiffs' land to save delivery costs. Deterrence is an important factor in order to remove profit from intentional trespass.

Insurance

McEvoy v. Group Health Cooperative⁴ held that the tort of bad faith can be applied to health maintenance organizations. The court reasoned that HMOs should be treated as insurers for bad faith purposes. Like traditional insurance companies, HMOs are required to establish contracts with subscribers with set terms of coverage. HMOs are authorized to engage in the insurance business and are subject to many of the same regulations as are applicable to insurance companies. Public policy also supports equating HMOs and insurers. Through contractual arrangements with physicians and patients, HMOs are able to exert control over the costs of treatment and elimination of waste. However, there is a concern that while HMOs focus on reducing costs, there may be failures to recognize and to protect adequately the medical needs of individual subscribers.

In some cases, there may exist a particular HMO action or omission that may constitute both bad faith and malpractice. However, the tort of bad faith is not designed to apply to malpractice cases arising from mistakes made by a health-care provider in diagnosis or treatment. In this case, the plaintiffs did not allege a malpractice action but rather alleged that the defendant breached its contract and in bad faith denied and threatened to deny coverage for out-of-network treatment.

Children

State ex rel. Angela M.W. v. Kruzicki⁵ was a highly publicized case involving a so-called "cocaine mom." It arose out of a motion brought by Waukesha County to acquire custody of a viable fetus that would suffer serious harm because the mother was ingesting cocaine and a CHIPS petition alleging that the viable fetus was in need of protection or services because its mother was unable to provide necessary care resulting in physical harm. The trial court ordered the pregnant woman detained at an in-patient drug treatment facility. The issue presented was whether a viable fetus is included in the definition of a "child"⁶ in the Children's Code.

By a 4-3 vote, the court determined that a viable fetus was not a "child" within the meaning of the statute. Extending the statute to viable fetuses would make other portions of the Children's Code absurd. The Code allows a child to be taken into custody if the welfare of the child demands that the child be immediately removed from his or her present custody. Another provision requires a person taking a child into custody to make every effort to immediately release the child to its parent. By reading the definition of "child" in context with other relevant sections of the Code, the majority believed that the Legislature intended a "child" to mean a human being born alive.

The dissenting justices argued that the majority did not construe the statute in accord with its legislative purpose. "Child" is defined as a person who is less than 18 years of age. In light of medical knowledge concerning fetal development, a child in a viable stage can and does live separately in the womb of its mother and can live and exist as an independent person if born in that stage. Also, this court recognized an unborn child as a person for purposes of recovery under the wrongful death statute. This court also has allowed consideration of a parent's prenatal conduct in making a decision as to whether or not to terminate parental rights. The preamble to the Children's Code expressly directs that it be liberally construed to effect the objectives set forth by the Legislature. Interpreting the word "child" to include a viable fetus fulfills express legislative objectives by allowing the state to intervene to protect and care for the physical development of an unborn child.

Guardianship

In Spahn v. Eisenberg⁷ the issue was whether the guardian of an incompetent person who has not executed an advance directive and is not in a persistent vegetative state has the authority to direct withdrawal of life-sustaining medical treatment from the incompetent person. The ward was a 71-year-old woman diagnosed with Alzheimer's dementia. She was bedridden. Her doctors have indicated she responds to stimulation from voice and movement. She also appears alert at times, with her eyes open, and responds to mildly noxious stimuli. The doctors do not believe her condition meets that of a persistent vegetative state. The only testimony regarding her views on the use of life-sustaining medical treatment is a statement she made in 1966 or 1967 when her mother-in-law was dying of cancer. She then stated that she would rather die of cancer than lose her mind.

After examining prior case law, the court decided not to allow the guardian to decide whether to withhold or withdraw life-sustaining medical treatment from an incompetent adult who is not in a persistent vegetative state. Although these adults have the same constitutional rights to accept or refuse treatment as competent adults, they do not have the same ability to exercise those rights. The court previously has determined that it is not in the best interests of the ward to withdraw life-sustaining treatment, including a feeding tube, unless the ward has executed an advance directive or other statement clearly indicating his or her desires. The reason the court requires a clear statement is because of the state's interest in preserving human life and the irreversible nature of a decision to withdraw nutrition from a person. The court determined that the only indication of the ward's desires was a statement made 30 years ago under different circumstances. This is not such a clear statement of intent to enable her guardian to authorize withdrawing her nutrition.

Corporations

In Jadair Inc. v. United States Fire Ins. Co.⁸ the court dismissed an appeal of a corporation because a corporate officer rather than an attorney signed the notice of appeal.

Appeals are governed by the rules of civil procedure, which do not expressly state who may sign a notice of appeal on behalf of a corporation. However, the statute imposing a penalty for practicing law without a license describes the practice of law to include appearing on behalf of some other person or entity in any action or proceeding before any court.⁹ The Wisconsin Constitution also provides that individuals may forego legal representation and represent themselves in court proceedings.¹⁰ Under the plain language of the rules and statutes, only lawyers can appear on behalf of, or perform legal services for, corporations in legal proceedings before Wisconsin courts. The exception for actions filed in small claims court does not apply to this case. Therefore, a notice of appeal is defective if it is signed by a nonlawyer on behalf of a corporation.

The primary purpose of the unauthorized practice of law statutes is to protect the public. Lawyers have professional obligations, as officers of the court, to satisfy themselves as to the legal grounds supporting an appeal. When a nonlawyer signs and files a notice of appeal on behalf of the corporation, the assurances required by lawyers are not present. Lawyers make assurances that an appeal is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. The nonlawyer is not bound by the professional responsibility rules nor is the nonlawyer speaking on his or her own behalf. The requirement that only attorneys licensed to practice law may sign and file a notice of appeal is more than a technical requirement. It is a fundamental requirement imposed by the Legislature. Abandoning that requirement would diminish the protection that the Legislature has afforded the public and would mean that any lay person, on behalf of someone else, could invoke the jurisdiction of the Court of Appeals.

Criminal Law

In State v. Angelia D.B.¹¹ a high school student was charged with carrying a concealed weapon after a school liaison police officer found a nine-inch knife hidden in her clothing. The trial court suppressed the knife and all derivative evidence obtained from the student because it concluded that the search violated her state and federal constitutional rights to be free from unreasonable searches and seizures.

A student informer told the assistant principal that he had observed a knife in another student's backpack and also indicated that the other student might have access to a gun. The assistant principal called the police and school liaison officer on duty at the school. The officer interviewed the informant who identified Angelia as the other student. Angelia was removed from her classroom. The officer informed Angelia that they had received information that she may be carrying a knife or gun. He conducted a brief pat down search of her jacket and pants and had Angelia search her backpack. Her locker also was searched as authorized by school policy. No weapons were discovered. After Angelia denied she possessed any weapons, the officer made a further search and observed two inches of a brown knife tucked in her waistband by her right hip. He then arrested her.

The court held that the search was reasonable under the "reasonable grounds" standard set forth in New Jersey v. T.L.O.¹² Where a careful balancing of governmental interests and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, the court has not hesitated to adopt such a standard. The proper educational environment in the schools permits school officials to exercise a degree of supervision and control that could not be exercised over free adults. Although school children do not lose all legitimate expectation of privacy once they enter the school grounds, a student's expectation of privacy must be balanced against the interest of school officials in maintaining a safe and orderly learning environment.

There are inherent differences between the roles of police officers and school officials that make the reasonable ground standard inapplicable to searches conducted by police officers acting independently of school officials. But, a police investigation that includes the search of a public school student initiated by school officials, who are responsible for the welfare and education of all the students within the campus, brings the police into the school-student relationship. In Wisconsin, school attendance is compulsory. School officials not only educate students who are compelled to attend school, they also have a responsibility to protect those students and their teachers from behavior that threatens their safety and the integrity of the learning process. This task has become increasingly difficult with the growing incidence of violence and dangerous weapons in schools. A failure to extend the reasonableness standard to searches by police officers under these circumstances might serve to encourage teachers and officials, who generally are untrained in proper pat down procedures or in neutralizing dangerous weapons, to conduct a search of a student suspected of carrying a dangerous weapon on school grounds without the assistance of a school liaison officer or other law enforcement official. The court concluded that the officer's search was reasonable under the circumstances and that the circuit court erred in suppressing the knife and derivative evidence from the search.

In State v. Fritz¹³ the court invalidated a conviction concluding that the defendant had received ineffective assistance of counsel prior to trial when he had the opportunity to make a plea bargain. After defendant told his lawyer that he had sex with an underage victim, the lawyer advised that at a trial it would be defendant's word against the word of the victim and that he could not be found guilty unless the prosecution persuaded all 12 jurors of his guilt beyond a reasonable doubt. The defendant testified at his trial, denied having sexual intercourse with the victim, and ultimately was convicted. At post-conviction proceedings, the defendant admitted that he had lied and stated that he would have taken the plea bargain if his attorney had not given him bad advice - that he had nothing to lose by going to trial because he would get probation in any event. The trial court concluded that the attorney's conduct was grossly unethical and constituted deficient performance but declined to find prejudice from the ineffective assistance of counsel. The trial court reasoned that the defendant had lied at the trial and will have to bear the consequences.

The Court of Appeals reversed, holding that the defendant was prejudiced by his lawyer's ineffective and unprofessional conduct. A defendant, unschooled in the law and the ethical responsibilities that are supposed to infuse our legal system, is not estopped from seeking redress when he follows a lawyer's unethical advice. History and popular culture teaches that all too often the legal system may be manipulated to accomplish a desired result. In order to show prejudice, the defendant must show that he would have in fact accepted the plea bargain but for the lawyer's deficient performance. The court held that the defendant would not be entitled to seek reinstatement of his original plea bargain but would set aside the conviction in order to permit the defendant to either negotiate a plea bargain or proceed with a new trial.

Endnotes

¹Estate of Makos v. Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997).

²Wis. Stat. § 893.55(1)(b).

³Jacque v. Steenberg Homes Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997).

⁴McEvoy v. Group Health Coop., 213 Wis. 2d 507, 570 N.W.2d 397 (1997).

⁵State ex rel. Angela M.W. v. Kruzicki, 209 Wis.2d 112, 561 N.W.2d 729 (1997).

⁶Wis. Stat. §48.02(2).

⁷Spahn v. Eisenberg, 210 Wis.2d 558, 563 N.W.2d 485 (1997).

⁸Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997).

⁹Wis. Stat. §§757.30(1) and (2).

¹⁰Wis. Const. art. I, sec. 21.

¹¹State v. Angelia D.B., 211 Wis. 2d 140, 564 N.W.2d 682 (1997).

¹²New Jersey v. T.L.O., 469 U.S. 325 (1985).

¹³State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997).

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