Supreme Court Digest
This column summarizes all decisions of the
Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Criminal Procedure
Terry Stops - Anonymous Tips - Automobile Frisks
State v. Williams, 2001 WI
21 (filed 13 March 2001)
This appeal was before the Wisconsin Supreme Court on remand from the
U.S. Supreme Court, which vacated the Wisconsin Supreme Court's prior
decision in this case (see State v. Williams, 225 Wis. 2d 159,
591 N.W.2d 823 (1999)) and remanded it for reconsideration in light of
Florida v. J.L., 120 S. Ct. 1375 (2000). [In J.L. the Supreme
Court held that an anonymous tip that a person is carrying a gun is not,
without more, sufficient to justify a police officer's stop and frisk of
that person. In that case the officers' suspicion that J.L. was carrying
a weapon arose not from their own observations, but solely from a call
made from an unknown location by an unknown caller. The tip lacked
sufficient indicia of reliability to provide the reasonable suspicion
required to make a stop pursuant to Terry v. Ohio, 392 U.S. 1
(1968).]
In this case Milwaukee police received an anonymous telephone call
indicating that someone was dealing drugs out of a blue and burgundy
Bronco parked in the caller's apartment building parking lot. Officers
responded to the call and, upon arrival at the scene four minutes after
being dispatched, observed a blue and burgundy Chevy Blazer with two
occupants in the parking lot that the caller had described. Without
conducting any surveillance or observing any drug activity, the officers
approached the vehicle with weapons drawn and ordered the defendant and
his passenger out of the vehicle. Prior to this they had observed that
the defendant's right hand was out of view, reaching down and behind the
passenger front seat. A subsequent protective search of the vehicle
revealed the presence of marijuana and cocaine. Thereafter the defendant
was placed under arrest.
The first issue before the court was whether an anonymous tip
containing a contemporaneous report of drug trafficking, combined with
independent observations and corroboration of details from the tip,
justified the investigatory stop of the defendant. Writing for the
court, Justice Crooks concluded that, considering the totality of the
circumstances, including the indicia of reliability surrounding the
anonymous tip and the police officers' additional observations, the
officers reasonably suspected that criminal activity was afoot.
The court concluded that there were many distinctions between the
anonymous tip in this case and the tip in Florida v. J.L.,
supra, which indicated that the tip in this case was reliable. First,
instead of being a "bare-boned" tip about a gun, as was the case in
J.L., the anonymous tipster in this case explained to the police
operator how she knew about the activity she was reporting: She was
observing it. The tipster in J.L. was totally unknown whereas the
informant in this case identified her location by address and indicated
that it was the apartment building where she lived. Even though she did
not identify herself by name, she did provide self-identifying
information and, when an informant places his or her anonymity at risk,
the court felt it could consider this factor in weighing the reliability
of the tip. Further, the circuit court in this case found that the
caller was a "citizen informant," and the supreme court felt that
citizens who purport to have witnessed a crime are to be viewed as
reliable and that the police should be able to act accordingly, even
though other indicia of reliability have not yet been established.
Unlike J.L., there was an audio recording in this case of exactly
what the tipster reported to the police. The recording provides an
opportunity, though somewhat limited, to review the caller's veracity.
Such review could examine not only the content of the call but also the
caller's tone and delivery. The recording also would be of assistance in
the event that the police needed to find the anonymous caller.
The reliability of the anonymous tip in this case was further
bolstered by police corroboration of innocent, although significant,
details of the tip. And finally, unlike J.L., there were circumstances
present in this case that gave the officers additional reason to suspect
that criminal activity was afoot, including the defendant's hand being
extended behind the passenger's seat, a gesture that may have indicated
he was either reaching for a weapon or concealing evidence as he saw the
officers approach. For all of these reasons, the court concluded that
the state met its burden of showing that the investigatory stop of the
defendant was justified on the basis of reasonable suspicion.
The court further held that the protective search of the vehicle that
followed the stop was justified. Based upon the defendant's activity in
the vehicle as the officers approached, coupled with the fact that they
were responding to a drug complaint, led the court to conclude that the
officers reasonably suspected that they were in danger of physical
injury and that the circumstances warranted the protective search of the
vehicle.
Justice Prosser filed a concurring opinion.
Justice Bablitch filed a dissent that was joined by Chief Justice
Abrahamson and Justice Bradley.
Terry Stops - Anonymous
Tips
State v. Rutzinski, 2001 WI
22 (filed 20 March 2001)
Police received a call that a black pickup truck was being driven
erratically. The caller was driving in traffic with the truck and kept
in contact with the police dispatcher until after the truck was stopped.
As a matter of fact, when the officer pulled in behind the truck prior
to stopping it, the caller relayed to the dispatcher that the officer
was following the correct truck and that the caller was in the vehicle
ahead of the truck. Although the officer did not independently observe
any signs of erratic driving, he activated his emergency lights and
conducted a traffic stop of the black pickup. This led to the defendant
being subsequently arrested for OWI. [Note: The motorist who had
reported the erratic driving also pulled over when the officer initiated
the stop. Although the motorist did not speak with the arresting
officer, he or she did speak with a police supervisor at the scene.
However, there is no record of the motorist's name or other
identification, or any indication of what was said between the
supervisor and the motorist.]
The defendant moved to suppress all evidence that flowed from the
stop of his truck, contending that the information in the motorist's
call was not sufficiently reliable to justify the stop and that the stop
therefore was unreasonable under the Fourth Amendment of the U.S.
Constitution and the equivalent provision of the Wisconsin Constitution.
The circuit court denied the suppression motion and the court of appeals
affirmed.
In a majority decision authored by Justice Wilcox, the supreme court
also affirmed. It held that the tip in this case provided sufficient
justification for an investigative stop of the defendant. First, the tip
contained sufficient indicia of the informant's reliability. The
information in the tip exposed the informant to possible identification
and, therefore, to possible arrest if the tip proved false. The tip
reported contemporaneous and verifiable information regarding the
defendant's alleged erratic driving, his location, and his vehicle's
description. Further, the officer verified many of the details in the
informant's tip before making the stop.
Secondly, the allegations in the tip could suggest to a reasonable
police officer that the defendant was driving while under the influence
of an intoxicant. This exigency, said the court, strongly weighs in
favor of immediate police investigation.
For the foregoing reasons, the court concluded that the stop did not
violate the Fourth Amendment or its Wisconsin counterpart.
Chief Justice Abrahamson filed a concurring opinion.
Probation Revocation - Review by Writ of Certiorari -
Exhaustion of Administrative Remedies
State ex rel. Mentek v.
Schwarz, 2001 WI 32 (filed 4 April 2001)
The circuit court dismissed the petitioner's petition for a writ of
certiorari seeking review of an order issued by an administrative law
judge (ALJ) from the Division of Hearings and Appeals (DHA) revoking his
probation. The court held that he failed to exhaust his administrative
remedies prior to filing the petition as required by Wis. Stat. section
801.02(7). The court of appeals affirmed the circuit court, also
concluding that administrative remedies were not exhausted under the
same statute.
The issue before the supreme court was whether the petitioner was
required to exhaust his administrative remedies under section 801.02(7)
or any other rule of law in order to petition the circuit court for a
writ of certiorari. [The administrative remedy that was available to him
was an appeal from the ALJ's decision revoking probation to the
administrator of DHA, which is part of the Department of
Administration.] Writing for the court, Chief Justice Abrahamson
concluded that section 801.02(7) (1995-96) (which has since been
amended) does not apply to a petition for a writ of certiorari seeking
judicial review of a probation revocation by the Department of
Administration.
The court further held that this case fell within recognized
exceptions to the doctrine of exhaustion of administrative remedies.
While the law is well established that judicial relief will be denied
until parties have exhausted administrative remedies, a court need not
apply the exhaustion doctrine in a rigid, unbending way. The supreme
court concluded that the petitioner's need for judicial review is
substantial in that he has been incarcerated under protest since 1997
and has made credible legal arguments in his various pro se filings in
the courts. Further, the Division of Hearings and Appeals' interest in
precluding the petitioner from litigation is weak. Finally, the court
believed that the public interest in the sound administration of justice
would suffer if it were to deny the petitioner meaningful judicial
review under the circumstances in this case. Those circumstances
included the petitioner's allegation that his attorney agreed to file an
administrative appeal following probation revocation and then, after
expiration of the time period for doing so, informed the petitioner that
such an appeal would not be filed.
Chief Justice Abrahamson also wrote a separate concurrence that was
joined by Justice Bradley.
Factual Basis for Guilty/No Contest Pleas - Felon in
Possession of a Firearm - Sufficiency of "Possession"
Evidence
State v. Black, 2001 WI 31
(filed 5 April 2001)
Milwaukee police went to a residence to investigate a narcotics
complaint. They were admitted into the upper unit of the building and
discovered several bags of marijuana and a pistol under the mattress in
a woman's bedroom. That woman, who lived in the upper unit, was the
defendant's girlfriend. The defendant himself lived in the lower
residence of the building. Regarding the evidence recovered from the
woman's unit, the defendant admitted to the police that the marijuana
was his and that he had "handled" the pistol two days earlier, but did
not know who owned it. This admission was included in the criminal
complaint.
The defendant was charged with possession with intent to deliver a
controlled substance and with possession of a firearm by a convicted
felon. The defendant pled no contest to these charges. After finding
that the defendant had entered his no contest pleas voluntarily and with
full knowledge of the nature of the charges and possible penalties, the
court asked the parties whether it could use the criminal complaint as a
factual basis for the plea. Both counsel responded in the affirmative.
The defendant also indicated that he had read the complaint and
understood that the court was going to use the facts in the complaint as
the basis for the plea. The defendant also had executed a standard plea
questionnaire which included, among other things, his acknowledgment
that he had read the complaint and understood the elements of the
offense and their relationship to the facts in this case and how the
evidence established his guilt.
After sentencing, the defendant filed a post-conviction motion
seeking to withdraw his no contest plea to the firearm charge. The
circuit court denied the motion. In a split decision, the court of
appeals reversed the circuit court.
The supreme court, in a majority decision authored by Justice Wilcox,
reversed the court of appeals. The first issue confronted by the court
was whether the circuit judge conducted an appropriate "inquiry" under
Wis. Stat. section 971.08(1)(b) which provides that "before the court
accepts a plea of guilty or no contest, it shall ... make such inquiry
as satisfies it that the defendant in fact committed the crime charged."
The supreme court concluded that the circuit judge did so. It could find
no authority for the proposition that the statute requires a judge to
make a factual basis determination in one particular manner or prohibits
a judge from using the complaint for that purpose. Instead, the plain
language of the statute merely requires the circuit judge to make such
inquiry as satisfies the court that the defendant in fact committed the
crime charged. While a circuit court may look beyond the complaint to
the record during the factual basis inquiry, no authority requires a
circuit court to do so. If the facts set forth in the complaint meet the
elements of the crime charged, they may form the factual basis for a
plea.
In this case the defendant entered a no contest plea. By so pleading,
he declined to exercise his right to put the state to its burden of
proving him guilty beyond a reasonable doubt, but he did not admit
unqualified guilt. When a defendant enters a no contest plea, he or she
is not required to admit guilt to every charge, which is precisely the
advantage of entering a no contest plea instead of a guilty plea.
Accordingly, the circuit court need not ask the defendant to admit guilt
to every charge. Even so, said the majority, a no contest plea is an
implied confession of guilt for purposes of the case to support a
judgment of conviction and in that respect is equivalent to a plea of
guilty ( 15). Accordingly, the defendant's no contest plea, coupled with
the guilty plea questionnaire and the colloquy described above, was
sufficient to support his conviction on the firearm charge, as long as
the facts set forth in the complaint met the elements of the
offense.
Turning to the facts of this case, the court also concluded that the
statement in the criminal complaint recounting the defendant's admission
that he "handled the pistol" satisfied the possession element of the
crime of felon in possession of a firearm. See Wis. Stat. § 941.29.
In the context of this offense, the term "possess" simply means that the
defendant knowingly had actual physical control of a firearm. The
statute does not specify what length of time a felon must possess the
firearm in order to violate the law. The allegation that the defendant
"handled the pistol" was sufficient to show possession because such
action amounts to exercising actual physical control over the firearm,
even though it may have been only for a brief time.
The majority rejected the "implicit thrust" of the defendant's
argument that the defendant did not touch the pistol with malicious
intent. Instead, he may only have handled it for a brief time and may
have informed the owner that she did not need it. The crime, however,
precludes the defendant from handling a firearm because of his status as
a felon. His intention in handling the weapon is irrelevant in
determining whether he violated the statute.
The court recognized that there are circumstances where a felon may
be able to assert one of the six privileges codified in Wis. Stat.
section 939.45 by way of a defense. In fact, the defendant attempted to
raise section 939.45(6), which allows one who has committed a criminal
act to claim a defense when his or her conduct is privileged by the
statutory or common law of Wisconsin. However, said the majority, there
is no statute or case that the defendant can cite as privileging his
handling of the pistol contrary to the statute.
Justice Bradley filed a concurring opinion. Justice Bablitch filed a
dissent that was joined by Chief Justice Abrahamson.
Employment Law
At-will Employees - Tort Action Against Employer for
Misrepresentation to Induce Continued Employment
Mackenzie v. Miller Brewing
Co., 2001 WI 23 (filed 20 March 2001)
The plaintiff was an at-will employee of Miller Brewing Co. He sued
his former employer in tort seeking damages for what he claimed was
intentional misrepresentation regarding the grade level of his position
at the company, which misrepresentation led him to continue his
employment there. The jury found in favor of the plaintiff and awarded
compensatory and punitive damages.
The court of appeals reversed. It concluded that under Tatge v.
Chambers & Owen Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998),
the plaintiff's claim for intentional misrepresentation was not
actionable in tort.
In a majority decision authored by Justice Wilcox, the supreme court
affirmed the court of appeals. The question before the court was whether
an at-will contract employee can maintain an action against his or her
employer in tort for intentional misrepresentation to induce continued
employment. The court concluded that those who are party to an at-will
contract must seek recourse in contract rather than tort law and that it
would be imprudent for the court to recognize the plaintiff's proposed
cause of action at this time. [Note: The plaintiff acknowledged his
inability to bring a contract cause of action against the employer.]
The employment-at-will doctrine is an established general tenet of
workplace relations in Wisconsin and the court has been reluctant to
interpose the judiciary between employees and employers. The court
recalled its language in Tatge that "no duty to refrain from
misrepresentation exists independently of the performance of the at-will
employment contract" ( 15). Were the tort of intentional
misrepresentation to exist independently of the at-will contract, it
could subject employees and employers to liability. Because such a cause
of action would have a profound effect on potentially millions of
at-will employees, the court believed that the legislature - not the
judiciary - would be a more appropriate forum to address whether the
at-will doctrine should be so altered. Absent an applicable statute, the
court rejected the plaintiff's attempt to create a new tort within the
contractual relationship and emphasized the need to preserve the
boundary between tort law and contract law. Accordingly, it held that
there is no cause of action in Wisconsin for intentional
misrepresentation to induce continued employment.
Chief Justice Abrahamson filed a concurring opinion that was joined
by Justice Bablitch. Justice Crooks did not participate in this
decision.
Sexually Violent Persons
Failure to Conduct Examination of Mental Condition Within Six
Months After Initial Commitment - Remedy
State ex rel. Marberry v.
Macht, 2001 WI 19 (filed 13 March 2001)
[EDITORS' NOTE: This case was before the supreme court on
certification from the court of appeals. The certified question was as
follows: "Is a person committed under Chapter 980 entitled to release
from said commitment when the Department of Health and Family Services
neglects to conduct a periodic examination of the committed person's
mental condition within six months after the initial commitment as
mandated by Wis. Stat. § 980.07(1)?"]
The supreme court was equally divided on the resolution of this
appeal. Justices Wilcox, Crooks, and Sykes would affirm the decision of
the circuit court. Chief Justice Abrahamson and Justices Bablitch and
Bradley would issue an order requiring additional briefing of specific
issues. Justice Prosser did not participate.
Accordingly, the court vacated its decision to certify and remanded
the case for consideration by the court of appeals.
Torts
Underage Drinking - Immunity - "Providers" - Third
Parties
Meier v. Champ's Sports Bar &
Grill Inc., 2001 WI 20 (filed 13 March 2001)
The plaintiff, Meier, age 19, along with two friends, ages 19 and 21,
spent the night drinking alcoholic beverages at a Champ's Sports Bar. No
personnel at Champs ever asked the boys for identification and none of
the three ever represented himself as of legal drinking age. The three
friends took turns "providing" alcohol for one another. Without dispute,
the boys were intoxicated when they left the bar and got into an
automobile driven by Meier's 19-year-old friend. Later the driver lost
control, the car careened down an embankment, and Meier was seriously
and permanently injured. In 1995 Meier filed suit against the driver,
Champs, and the bar's two owners. The circuit court granted summary
judgment in defendants' favor, concluding that they had immunity under
Wis. Stat. section 125.035.
Hearing the case on bypass, the supreme court, in an opinion written
by Justice Bradley, affirmed. Because all defendants were generally
immunized by section 125.035(2), the main issue was whether Meier's
claims fell within an exception for "third parties" under section
125.035(4)(b). The court held that "an individual who provides alcohol
to an underage person that is a substantial factor causing an accident
cannot be considered a third party under section 125.035(4)(b)" ( 17).
Applying the "common definition of third party," the court concluded
that a "third party is someone other than the underage drinker or a
provider who provides alcohol that is a substantial factor in causing
the third party's injuries" ( 24). Meier's provision of alcohol to the
driver was a substantial factor in the accident that later injured
Meier. "An individual may not provide injury-causing alcohol and also
claim to be a third party in order to take advantage of the exception to
immunity in an action against another provider" ( 25). This construction
of the statute also advanced the legislative goal of deterring persons
like Meier who provide alcohol to underage persons (the driver).
The court's holding also comported with the statute's legislative
history. The legislature drafted section 125.035 in response to several
cases in the mid-1980s. It was inappropriate to "strictly construe"
section 125.035 because the statute was not in "derogation of the common
law"; rather, it "attempted to codify the common law as it existed in
1985" ( 34).
Finally, Meier argued that regardless of whether he "provided" some
alcohol for the group, he was an injured third party with respect to
those purchases made by his two friends. The court refused, however, to
"subdivide and nuance an evening of drinking into a dozen or so
individual transactions in a case such as this" ( 39).
Res Ipsa Loquitur - "Illness Without
Forewarning"
Lambrecht v. Kaczmarczyk,
2001 WI 25 (filed 23 March 2001)
In February 1996 the defendant-driver's automobile was traveling
westbound on a straight and dry road when it collided with three other
automobiles. Two of the cars were traveling in the same direction as the
defendant and were in a right turn lane. The third vehicle, the
plaintiff's, was in the intersection where it was in the process of
turning left across the defendant's lane. The defendant's car rear-ended
the first vehicle, brushed the rear bumper of the second, and skidded
across the divided median where it struck plaintiff's vehicle.
Medical evidence established that the defendant died of a heart
attack, but experts disagreed about when it occurred. One doctor opined
that it occurred before the collision, but other medical experts
testified that it was impossible to determine when defendant suffered
the heart attack. The plaintiff filed a simple negligence claim against
the defendant-driver's estate and the trial court granted summary
judgment to the defendants. The circuit court ruled that "a res ipsa
loquitur inference of negligence was inapplicable because it is just as
likely that an unforeseen illness caused the collision as it is that
negligence did" ( 18).
On certification from the court of appeals, the supreme court
reversed in an opinion written by Chief Justice Abrahamson. First, it
held that "the applicability of the res ipsa loquitur doctrine raised in
the motion for summary judgment is a question of law that this court
determines independently of the circuit court, benefiting from its
analysis" ( 27). Second, the pleadings and record demonstrated that
plaintiff had made out a prima facie case of negligence. This
"extraordinary case" supported the relatively unusual application of the
res ipsa loquitur inference in an automobile collision case. In
particular, the defendant's car struck three cars, two of which were
moving in the same direction as the defendant-driver. The plaintiff's
vehicle was either stopped or just starting to move.
The third issue concerned whether defendants had established a
defense that defeated the plaintiff's negligence claim. This issue
forced the supreme court to confront two seemingly inconsistent lines of
cases, one relied upon by the defense and the other by the plaintiff,
both of which are extensively discussed. The court suggested that the
two lines could be distinguished "on the basis of the strength of the
inference of negligence that arises under the circumstances of the
collision, that is, the likelihood of the alleged tortfeasor's
negligence is substantial enough to permit the complainant's reliance on
res ipsa loquitur even if evidence is offered to negate the inference" (
72). The facts of this case raised a "strong inference of negligence"
that "survives alongside evidence that the defendant-driver suffered a
heart attack sometime before, during, or after the collision" ( 76).
Although expert testimony conflicted and the evidence raised competing
inferences, such issues were properly before the trier of fact.
Finally, the court observed that the defendants might prevail in two
ways. First, the jury might "decline to draw the permissible inference
of the defendant-driver's negligence arising from the facts of the
collision itself." Second, the defendants might carry their burden of
persuasion on the defense of "illness without forewarning" ( 87).
Justice Crooks, joined by Justices Wilcox and Sykes dissented on the
grounds that the majority's decision "effectively overruled precedent
established over the course of a century and not only undermined the res
ipsa loquitur doctrine, but also summary judgment methodology" (
91).
Worker's Compensation
Average Weekly Wage - Inclusion of Health Insurance
Premiums
Theuer v. Labor and Industry Review
Commission, 2001 WI 26 (filed 3 April 2001)
The plaintiff suffered a work-related injury while employed by
defendant Ganton Technologies Inc. At the time of his injury, he
received an average weekly salary of $506.86. His employer also
contributed $77.14 each week toward the plaintiff's health insurance.
The plaintiff's labor agreement provided that the employer would
continue to pay the health insurance premiums for 90 days when an
employee was out of work due to a work-related injury. Following
expiration of the 90-day period, the plaintiff was no longer covered by
his employer's health insurance plan, though he had the option of
extending this coverage by paying premiums of $626.61 per month.
The Department of Workforce Development excluded the cost of the
health insurance premiums in determining the plaintiff's average weekly
wage, from which his worker's compensation benefits were calculated. An
administrative law judge agreed, as did the Labor and Industry Review
Commission (LIRC), which found that under its longstanding
interpretation of Wis. Stat. section 102.11(1)(e), only taxable
compensation was to be included in the calculation of an employee's
average weekly wage. The circuit court affirmed the LIRC. The court of
appeals certified the case to the Wisconsin Supreme Court.
In a unanimous decision authored by Chief Justice Abrahamson, the
supreme court affirmed. The question before the court was whether LIRC
properly excluded health insurance premiums when calculating the
plaintiff's average weekly wage under the statute cited above for
purposes of determining disability benefits. The statute directs LIRC to
include in earnings any things of value that are received in addition to
monetary earnings as a part of the contract. LIRC interprets the statute
to include those things that are taxable and to exclude nontaxable
fringe benefits such as meals for cost, insurance, and retirement
contributions.
Employing a great weight deference standard, the supreme court held
that LIRC's conclusion that health insurance premiums are not a thing of
value received in addition to monetary earnings as part of the wage
contract is a reasonable interpretation of the statute and, accordingly,
it affirmed the judgment of the circuit court affirming the decision of
the LIRC.
Wisconsin Lawyer
