Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Procedure | Insurance |
Lemon Law | Municipal Law | Open Records Law | Real Property | Sexual Predator Law | Torts | Unathorized Law Practice |
Criminal Procedure
Other Act Evidence - Stipulations - Effective Assistance of
Counsel
State v. DeKeyser,
No. 98-0174-CR (filed 18 Aug. 1998) (ordered published 1 Oct. 1998)
The defendant was convicted of sexually assaulting his 15-year-old
granddaughter. No physical evidence corroborated the assault. The state
introduced evidence that four years earlier the defendant had assaulted
another granddaughter, who was 15 years old at the time. His trial
counsel attempted to block the admission of this other act evidence
before and at trial, without success. At defense counsel's request, the
trial judge gave a limiting instruction.
The court of appeals, in an opinion written by Judge Myse, reversed
on grounds of ineffective assistance of counsel. It held that trial
counsel was prejudicially deficient by failing to know about, or pursue,
a stipulation that would have obviated the state's alleged need for the
evidence. First, the court analyzed the admissibility of the other act
evidence, concluding that it was properly admissible to show only a
motive for the assault, not identity, absence of mistake, or plan. If
counsel had conceded motive, the other act evidence would have been
inadmissible. In finding prejudice, the court held that there was a high
likelihood that the jury misused the other assaults as forbidden
"propensity" evidence.
Chief Judge Cane filed a dissenting opinion.
Withdrawal of Guilty Plea - Misunderstanding by Defendant Regarding
Deportation Consequences
State v.
Rodriguez, No. 97-3097-CR (filed 20 Aug.1998) (ordered
published 1 Oct. 1998)
The defendant entered an Alford plea to a charge of sexual
assault. At the plea hearing, the court followed the requirements of
Wis. Stat. section 971.08(1)(c) by advising the defendant that if he was
not a citizen of the United States, a plea of guilty or no contest could
result in his deportation, his exclusion from admission to this country,
or a denial of naturalization under federal law. To this advisal the
defendant responded, "I am a citizen." The court found the defendant
guilty on his plea and sentenced him to 10 years in prison.
Thereafter the defendant filed a post-conviction motion seeking to
withdraw his plea claiming that it was not voluntarily and knowingly
entered. In essence he asserted that his plea was based on his mistaken
understanding that he was a United States citizen when in fact he is
not. He asserted that, had he known that he would be subject to the
possibility of deportation, he would not have entered the plea. The
circuit court denied the motion for plea withdrawal.
In a decision authored by Judge Vergeront, the court of appeals
affirmed. It concluded that deportation is a "collateral consequence" of
the entry of a plea - not a direct consequence - and that
misunderstanding about the collateral consequences of a conviction does
not render a plea constitutionally infirm. Accordingly, the circuit
court did not err in concluding that the defendant had not established a
manifest injustice that would have warranted granting his motion to
withdraw his plea.
Search and Seizure - Unlawful Entry - Voluntary Consent -
Attenuation
State v. Bermudez,
No. 97-0809-CR (filed 5 Aug. 1998) (ordered published 1 Oct. 1998)
The court of appeals, in an opinion written by Judge Snyder, reversed
the defendant's conviction for drug possession based on an unlawful
entry and the consequent illegal seizure of evidence. The evidence was
discovered during the search of a motel room.
The trial court found, and the court of appeals agreed, that the
initial entry by officers was unlawful. A witness testified that
officers walked into the room through a closed door without knocking.
Despite the finding of an illegal entry, the record also revealed that
the occupant "voluntarily consented" to the search that followed.
The court held, however, that the consent "was obtained by the
exploitation of the prior illegal police activity." Attenuation analysis
considers a host of factors. First, the consent occurred in "close
temporal proximity to a primary illegality" (that is, there was an
insufficient time lapse between the unlawful entry and the "voluntary
consent"). As the court put it, "[t]he passage of a few minutes cannot
be said to remove the taint of the warrantless entry." Second, the
occupant appeared to be "surprised, frightened, or confused" by the
officers' presence (that is, there were no significant "intervening
factors" that vitiated the illegality). Third, the unlawful entry
constituted flagrant misconduct under the circumstances of this
case.
Insurance
Health Coverage - Preexisting Condition - Cancer Symptoms
Ermenc v. American Family
Insurance, No. No. 98-0531 (filed 19 Aug. 1998) (ordered
published 1 Oct. 1998)
Monica died of stomach cancer. Her estate appealed from a summary
judgment action dismissing its claim against Monica's health insurer for
breach of contract and bad faith. Monica was treated for abdominal pain
in May 1996. She bought the short-term health insurance policy in June
1996. The trial judge agreed with the insurer that Monica's stomach
cancer was not a covered sickness under the policy and that it
constituted a preexisting condition.
The court of appeals, in an opinion written by Judge Brown, reversed.
The policy defined a covered sickness as "a condition which is first
evident while this policy is in force." Hindsight established the link
between Monica's stomach pain in May and the cancer that killed her. But
in May 1996 the doctors did not detect or suspect cancer. The cancer was
diagnosed only after the policy was in force. In short, since the
symptoms of cancer (for example, a palpable mass, blood in the stool)
were not "evident" until after the policy was in force, the cancer was a
covered sickness.
Nor was the cancer excluded as a preexisting condition. The court of
appeals looked to cases from other jurisdictions addressing "when
symptoms are recognizable enough to characterize a condition as
preexisting." It concluded that in "[i]n order to avoid liability, the
insurer must prove that the claimant was treated for the same condition
before and after the policy took effect." In this case, Monica suffered
from "general, nonspecific symptoms that became clear only by use of
hindsight."
Homeowner's Policy - Business Pursuits Exclusion - Exceptions
Rufener v. State Farm Fire
& Casualty Co., No. No. 98-0086 (filed 20 Aug. 1998)
(ordered published 1 Oct. 1998)
Martin operated a part-time snow-plowing business from his home. With
the assistance of his friend, Rufener, Martin decided to install a hoist
in his garage for use in handling snowplowing equipment. Rufener was
injured when he fell off a ladder in Martin's garage while installing
the hoist. The trial court granted summary judgment dismissing Martin's
homeowner's insurer, State Farm, under the policy's "business pursuits"
exclusion.
The court of appeals, in an opinion written by Judge Deininger,
reversed. Two principles emerged from the case law discussing the
exclusion. First, it did not matter whether Rufener's injuries were
characterized as arising from the "fall of a ladder" or the
"installation of the hoist." Rufener was injured while installing the
hoist in Martin's garage for Martin's business. Second, the decisive
issue was whether "the activity is ordinarily part of or related to the
insured's business." The court concluded as a matter of law that the
installation of Martin's hoist was not ordinarily part of, or related
to, Martin's snowplowing business. Thus, Rufener's injuries fell within
an exception to the business pursuits exclusion.
Lemon Law
Offer to Transfer Title - Calculating Refunds
Church v. Chrysler
Corp., No. No. 97-2065 (filed 19 Aug. 1998) (ordered published
1 Oct. 1998)
On July 20, 1995, the Churches wrote a letter to Chrysler explaining
why they thought their new car was a "lemon" as defined by section
218.015 of the Wisconsin Statutes, and offering to transfer title in
exchange for a full refund. On Aug. 4 Chrysler responded, indicating
that it would repurchase the vehicle but at a price less than the
Churches had requested. The Churches stated their disagreement with
Chrysler's figure in a letter on Aug. 11 which also stated that they
expected their refund no later than 30 days from their initial offer on
July 20. The Churches argued that they were entitled to $30,400 and
Chrysler set the refund amount at $29,400. After further exchanges, the
Churches filed this action on Aug. 23, 1995, 33 days after the initial
demand. On Sept. 11, Chrysler sent the Churches a refund for $29,400.
The trial judge dismissed the complaint on the ground that the parties'
negotiations suspended the 30-day time limit. The judge also ruled that
Chrysler had properly deducted the amount of the purchase incentive
rebate from the refund total.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed. Consistent with the legislative purpose behind the Lemon Law,
the court rejected Chrysler's argument that "the Churches' attempts to
negotiate a greater refund amount removed the process from the Lemon Law
or suspended or delayed the running of the thirty-day clock." The
statute "clearly requires that the manufacturer issue a refund within
thirty days of the consumer's offer to transfer title." Thus
manufacturers have two choices in cases of disagreements with
purchasers: "(1) pay the amount demanded by the purchaser within the
thirty-day period; or (2) pay the amount which the manufacturer deems
appropriate within thirty-day period." The first option obviously
concludes the matter. The second option may result in a lawsuit by the
purchaser where the issue is whether the amount of the refund was
correct. If the manufacturer loses, it suffers the statutory
penalties.
Addressing the refund amount in this case, the court held that
Chrysler acted appropriately in deducting the cash rebate given to the
Churches at the time of purchase. The full purchase price is the amount
actually paid by the consumer. Disputed issues of fact involving the
usage allowance and finance charges were remanded to the circuit court
for trial.
Municipal Law
Appeals Involving Grant of Zoning Variance - Failure to Join
Indispenable Party
County of Rusk v. Rusk
County Board of Adjustment, No. No. 98-0298-FT (filed 25 Aug.
1998) (ordered published 1 Oct. 1998)
The Rusk County Board of Adjustment granted a variance allowing a
previously constructed addition to the home of Robert and Elaine Radiker
to remain within the shoreline setback area. In timely fashion Rusk
County commenced a certiorari review of the Board's decision pursuant to
Wis. Stat. section 59.694(10). The Board of Adjustment was the only
defendant named in the action and at no time answered or appeared to
defend the action. The property owners were neither named as a party nor
ever given notice of the pending action seeking reversal of the variance
granted to them.
The circuit court ordered the parties to brief the issue of whether
the action should be dismissed for the county's failure to join the
property owners as indispensable parties and serve them within the
30-day time limit for filing a certiorari review pursuant to the statute
cited above. The circuit court ultimately dismissed the action for
failing to name the property owners as parties concluding that their due
process rights and property interests required that they be joined and
served at the commencement of the action and within the 30-day time
limit required by statute.
The court of appeals, in a decision authored by Judge Myse, reversed.
It viewed the case as presenting two issues: 1) whether the failure to
join an indispensable party by itself was fatal to the county's attempt
to obtain certiorari review of the variance; and 2) whether the failure
to join all indispensable parties within the 30 days of commencing
certiorari review requires dismissal of the writ. [Because the parties
did not dispute the issue, the appellate court assumed without deciding
that a property owner is an indispensable party to an action for
certiorari review of a zoning determination as to his or her
property.]
The court of appeals held that the failure to join an indispensable
party was not a jurisdictional defect that by itself warranted dismissal
of the action. Having determined that dismissal was not warranted, the
court next considered whether the failure to join all indispensable
parties within the 30-day period required dismissal because the statute
limits the commencement of an appeal to within 30 days after the filing
of a decision by the board of adjustment. The court concluded that,
because an action was commenced within the time period prescribed by
statute, the 30-day statute of limitations was tolled. The subsequent
joining of the indispensable party was irrelevant to the provisions of
the statute of limitations since commencement of the action within the
statutory period was sufficient to toll the running of the period of
limitations. The language of the statute requires only that the petition
for review be filed within the 30-day period. The joining of other
parties at some subsequent date, amendment of the pleadings, and other
procedural matters have no affect on the petitioner's right to obtain
review once the petition has been timely filed.
Open Records Law
Public Works Projects - Access to Payroll Records of Construction
Subcontractor - Wis. Stat. section 19.36(3)
Building and Construction
Trades Council of South Central Wisconsin v. Waunakee Community School
District, No. No. 97-3282 (filed 27 Aug. 1998) (ordered
published 1 Oct. 1998)
The Waunakee School District contracted with J.P.Cullen and Sons to
build an elementary school and administration building. Cullen
subcontracted portions of the work on the project to various
subcontractors. The subcontractors did not have any contractual
relationship with the school district.
The Building and Construction Trades Council of South Central
Wisconsin submitted an open records request to the district requesting
that the district provide access to the payroll records of certain
subcontractors working on the project. The sole issue before the court
of appeals "was whether the open records law, when considered in light
of the prevailing wage law (Wis. Stat. section 66.293), required the
district to obtain the records from the subcontractors and provide them
to the Council." In a decision authored by Judge Eich, the court of
appeals concluded that it does not.
The portion of the open records law lying at the heart of this
dispute is the section setting forth "limitations" on the access to, and
the withholding of records - specifically, the "contractors' records"
provisions of Wis. Stat. section 19.36(3), which state that "each
authority shall make available for inspection ... any record produced or
collected under a contract entered into by the authority with a person
other than an authority to the same extent as if the record were
maintained by the authority." The statute plainly addresses contracts
between an "authority" (in this case the school district) and the party
whose records are being sought. But the council was not seeking records
produced or collected under the district's contract with the contractor.
Its request went to another level entirely. It sought information that
private subcontractors produced for their own independent purposes. As
such they were not covered by the provisions of section 19.36(3).
Among the council's arguments was that the subcontractors' payroll
records were subject to inspection because the general contractor had a
duty to ensure that all workers on the job, including those employed by
subcontractors, were paid the prevailing wage. The appellate court was
not persuaded. The purpose of the prevailing wage law is to set the
prevailing wage rates and hours of work for employees of private
employers working on public works projects. The wage law contains
specific statutory procedures for monitoring and securing compliance
with its requirements. And it provides both civil remedies and criminal
penalties for violations of its terms. The prevailing wage law is
enforced by the Department of Workforce Development and the department
is given broad enforcement powers to that end. There is opportunity for
public input into the enforcement process because any interested person
may request the department to inspect the records of all contractors and
subcontractors on a public project to ensure that they are complying
with the prevailing wage law.
Real Property
Construction Liens - Notice - 10,000 Square-feet Exception
United States Fire
Protection, Wisconsin Inc. v. St. Michael's Hospital, No.
97-3426-FT (filed 11 Aug. 1998) (ordered published 1 Oct. 1998)
A subcontractor installed a sprinkling system that permitted a
hospital to convert an area devoted to chemical dependency treatment
into a subacute care unit. The area exceeded 10,000 square feet. The
hospital paid its general contractor for the work but the subcontractor
was never paid. The subcontractor filed a claim for a lien against the
hospital but it did not serve the hospital with a 60-day notice-of-lien
rights under section 799.02(2)(b) of the Wisconsin Statutes. The circuit
court dismissed the action for failure to comply with the notice
provision.
The court of appeals, in an opinion written by Judge Fine, reversed.
The statute excepts notice where the construction "adds" or "provides"
more than 10,000 total usable square feet of floor space. Since the
hospital could not use the space as a subacute care unit until the
sprinkler system was installed, the subcontractor "provided" 10,000
square feet of subacute care space to the facility within the
meaning of the statute.
Judge Curley filed a dissenting opinion.
Sexual Predator Law
Mental Disorders - "Substantial Probability" - Sufficiency of
Evidence
State v. Kienitz ,
No. 97-1460 (filed 30 July 1998) (ordered published 1 Oct. 1998)
The defendant appealed from an order committing him as a sexually
violent person under Wis. Stat. chapter 980. The court of appeals, in a
decision authored by Judge Vergeront, affirmed.
Diagnosed as a pedophile, the defendant challenged both the legal
standard and the sufficiency of evidence showing that it was
"substantially probable" that he would engage in future acts of
violence. On appeal the defense contended that "substantially probable"
meant an "extreme likelihood" of future transgressions while the state
argued that it meant the defendant was "likely" to engage in such
behavior. The court rejected both arguments. Rather, the court held that
"'substantially probable' means 'considerably more likely to occur than
not to occur,'" a definition that comported with the one given by the
trial court. The state's "likelihood" standard gave insufficient weight
to the adverb "substantially" and the defense's position raised the
probability bar too high. Finally, the court expressly declined to
attach a "minimum percentage" to the standard or declare the statute
impermissibly ambiguous because the Legislature failed to do so.
The defense also challenged the sufficiency of the evidence. Although
a chapter 980 action is (nominally) a "civil proceeding," the court
applied the standard of review governing the sufficiency of evidence in
criminal cases. See State v. Burkman, 96 Wis. 2d 630, 292
N.W.2d 641 (1980) (the evidence is viewed in the light most favorable to
the verdict to determine whether any reasonable trier of fact could have
found guilt beyond a reasonable doubt). Under this standard, the
evidence was sufficient to justify the commitment.
Supervised Release from Commitment - Unavailability of Treatment
Facilities
State v. Sprosty,
No. No. 97-3524 (filed 6 Aug. 1998) (ordered published 1 Oct. 1998)
The respondent was committed as a sexual predator under Wis. Stat.
chapter 980. Thereafter he filed a motion for supervised release. At his
evidentiary hearing experts testified that although he needed to
continue his participation in sex offender and substance abuse
treatment, he could do so while living in the community under close
supervision. The trial court agreed and granted the petition for
supervised release. When efforts to locate an appropriate treatment
facility willing to accept the respondent failed, the circuit court
entered an order denying his supervised release and returned him to
secured confinement.
The court of appeals, in a decision authored by Judge Dykman,
reversed. It concluded that Wis. Stat. section 980.08(5) requires a
person's release once the court has determined that release is
appropriate. After it determines that release is warranted, the court
must notify the Department of Health and Family Services (DHFS). DHFS
then contacts the social services agency in the county in which the
person resides, and together they must prepare a plan that identifies
the treatment and services that the person is to receive in the
community. However, if the social services agency in the person's county
of residence declines to prepare a plan, DHFS may then arrange with
another county to prepare the plan if the person will be living in that
county. If DHFS is unable to find another county willing to prepare the
plan, the court must then designate a county social services agency to
prepare the plan, order it to prepare the plan, and place the person on
supervised release in that county. In the end, the court and DHFS are
responsible for making sure that an appropriate treatment plan is
developed and that the person is placed on supervised release in a
community.
The appellate court concluded that the unambiguous language of the
statute cited above did not permit the circuit court to order the
respondent's continued confinement. If the person's county of residence
is unable or unwilling to prepare a plan, and no other counties agree to
prepare a plan or accept the person into their program, the committing
court must designate a county for placement. If necessary treatment
programs and facilities are currently unavailable, as apparently was the
situation in this case, the county designated by the circuit court
carries the burden of creating or contracting for the necessary programs
and facilities.
Torts
Recreational Use Immunity - Group Sports - Injured Spectators
Meyer v. School District of
Colby., No. No. 98-0482 (filed 20 Aug. 1998) (ordered published
1 Oct. 1998)
The plaintiff was injured while watching a high school freshmen
football game on school property. She fell down when a part of the
bleachers broke as she was descending the stands. The circuit court
granted summary judgment to the school district dismissing the claim on
grounds of statutory recreational use immunity, section 895.52 of the
Wisconsin Statutes.
The court of appeals affirmed in an opinion written by Judge
Deininger. The sole issue was "whether the exception in the statutory
definition of recreational activity for 'any organized team sport
activity sponsored by the owner of the property on which the activity
takes place' extends to the spectators, and not just the participants,
at such an event." Analyzing the case law and the materials evidencing
the Legislature's purpose, the court held "that the organized team
sports activity exception does not extend to spectators who are not
participants in the excepted activity and whose injuries do not arise
out of the team sports activity or the actions of participants in that
activity."
Immunity - Public Officials - Interpretation and Application of Law
- Discretionary Acts
Kierstyn v. Racine Unified
School District, No. No. 97-1573 (filed 26 Aug. 1998) (ordered
published 1 Oct. 1998)
The plaintiff's wife was a teacher employed with the Racine Unified
School District for more than 25 years and was eligible for disability
benefits administered by the Wisconsin Retirement System (WRS) when she
was diagnosed with cancer. The district's benefits specialist, who was
employed by the district, and who had responsibility for advising
district employees regarding their benefits, met with the plaintiff and
his wife and allegedly told them that the wife could not apply for
disability benefits until her sick leave was exhausted. This was
erroneous information. Unfortunately, the wife died before her
application for disability benefits had been filed and WRS determined
that the plaintiff was entitled to nonannuitant survivor benefits which
are significantly less than the disability survivorship annuity he
otherwise may have received.
The plaintiff brought this suit against the district, its liability
insurer, and its benefits specialist alleging common law negligence and
negligent misrepresentation. The plaintiff's principal argument was that
the benefits specialist's decision to meet with the plaintiff and his
wife was discretionary; however, when the plaintiff and his wife asked
him questions, the specialist had a ministerial duty to give the correct
answers. Thus, by giving incorrect advice, the plaintiff maintained that
the specialist breached this ministerial duty. The circuit court granted
the defense motion for summary judgment and dismissed the plaintiff's
complaint concluding that the benefits specialist was performing a
discretionary function when he advised the plaintiff and his wife and
was thus entitled to public immunity.
The court of appeals, in a decision authored by Judge Anderson,
affirmed. It concluded that the specialist's advice to the plaintiff and
his wife required the exercise of governmental discretion and that he
was thus immune from liability. The doctrine of immunity may be
inapplicable where a public officer's challenged decision involves the
exercise of discretion but the discretion exercised is not governmental,
that is, does not require the application of statutes to facts or a
subjective evaluation of the law. However, in this case, the specialist
was called upon to interpret the applicable law and regulations and to
apply them to the deceased's particular situation. Said the court, the
interpretation of laws, rules, and regulations is an art, not a science.
It certainly does not present a situation in which duty "is absolute,
certain and imperative, involving merely the performance of a specific
task with such certainty that nothing remains for judgment or
discretion." In this case the specialist was exercising his judgment in
selecting and applying the relevant provisions of the law to the facts
presented by the plaintiff and his wife and that exercise was protected
by the doctrine of governmental immunity.
Judge Brown filed a dissenting opinion.
Unauthorized Law Practice
Trusts - Nonlawyers Representing Trust Interests
Life Science Church v.
Shawano County, No. 98-0694 (filed 4 Aug. 1998) (ordered
published 1 Oct. 1998)
The Life Science Church, Bible Camp & Christian Liberty Academy,
and the Mission of Jesus Christ Almighty God appealed a judgment that
dismissed their quiet title lawsuit against Shawano County and the
Village of Tigerton. The trustees for these organizations filed the
notice of appeal without a lawyer licensed to practice law in Wisconsin.
The trustees did not make clear whether these organizations are
incorporated entities, unincorporated associations, or common law
trusts; one or more may be incorporated religious entities under Wis.
Stat. chapter 187.
The county and the village moved to dismiss the appeal, contending
that trustees may not represent the legal interests of their trust in
the courts of this state without licensed legal counsel, in the same way
that officers, directors, and shareholders may not represent the legal
interests of a corporation without licensed legal counsel. The county
and village argued that this legal disability rendered the trustees'
notice of appeal ineffective to initiate a valid appeal. In a per curiam
opinion the court of appeals agreed and dismissed the appeal.
The Wisconsin Supreme Court has ruled that nonlawyers such as
officers, directors, and shareholders may not represent corporations in
Wisconsin courts. Corporations may appear in Wisconsin courts only by
means of a lawyer licensed to practice law in Wisconsin; nonlawyers may
appear only on their own behalf. The court of appeals concluded that
this principle also applies to trustees who seek to speak for another's
interests in court. Trustees stand in a role similar to officers,
directors, and shareholders of corporations. They are nonlawyers
attempting to represent the legal interests of someone else - the legal
interests of their trust and the trust beneficiaries. Nonlawyers who
attempt to speak for the legal interests of others are engaged in the
unauthorized practice of law. Accordingly, the court held that trustees
may appear in Wisconsin courts without licensed legal counsel only to
represent their own legal interests in their individual capacities - not
to represent the legal interests of their trusts or trust beneficiaries
in their representative, fiduciary capacities as trustees.
The court saw nothing in Wis. Stat. chapter 187 that would dictate a
different result for unincorporated religious societies. Accordingly, it
held that the religious, nonprofit, or unincorporated status of
appellant trustees' organizations did not empower the trustees to speak
for the organizations in court without licensed legal counsel.
Prof. Daniel D. Blinka and Prof.
Thomas J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W. Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
Wisconsin Lawyer
