Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Constitutional Law | Corrections | Criminal Procedure | Insurance | Public Benefits | Taxation | Torts |
Civil procedure
Excluding Expert Evidence - Surprise - Probative Value
Magyar v. WHCLIP, No. 95-0972
(filed 27 June 1997)
The plaintiff brought a medical malpractice action against various
defendants. On the first day of trial, the plaintiff and one defendant,
NSM, asked the court to approve a settlement that dismissed NSM from the
lawsuit. The settlement was, however, contingent upon the court's ruling
that a certain expert named only by NSM could not be called by any other
defendant. The judge approved the settlement over the objection of the
nonsettling defendants. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Bablitch,
reversed. The trial judge properly concluded that the plaintiff was not
unduly surprised by the expert's testimony, which had "significant"
probative value. Nor was the testimony in any way "unfairly"
prejudicial. The supreme court held that the trial judge abused his
discretion by excluding the evidence based on "the equities to the
settling defendant."
Chief Justice Abrahamson concurred, writing separately to suggest
that the court might have to reconsider prior cases that "injudiciously
read unfair surprise into sec. 904.03." Justice Geske joined in the
concurrence.
Justice Geske also filed a concurring opinion that addressed why the
circuit court erroneously considered the "equity" of the dismissal.
Offers to Settle - Interest - Insurer's Limits
Nelson v. McLaughlin, No.
95-3391 (filed 2 July 1997)
The plaintiff sued an insured defendant and his insurer for damages
resulting from a car accident. Prior to trial, the plaintiff offered to
settle for the $100,000 policy limits but the offer was rejected. A jury
awarded about $500,000 in damages. Section 807.01(4) of the Wisconsin
Statutes provides that the plaintiff is entitled to 12 percent interest
on the amount recovered from the date of the offer of settlement to the
date of payment. The circuit court imposed on the insurer the interest
rate on the entire verdict rather than the insurer's policy limits
($500,000 versus $100,000). The court of appeals reversed.
The supreme court, in an opinion written by Justice Crooks, affirmed
the court of appeals. The insurer was responsible for the 12 percent
interest on only its $100,000 policy limits. This conclusion followed
from "(1) the legislature's choice of the phrase 'amount recovered'
instead of 'verdict' or 'judgment' in sec. 807.01(4); and (2) the fact
that if 'amount recovered' is interpreted to mean the entire verdict,
insurers will be forced to settle cases that would be more appropriately
resolved at trial." Insurers will not deny settlements contrary to the
best interests of their insureds "because the availability of a bad
faith claim provides substantial deterrent against insurers engaging in
such practices." Finally, the court recognized that an insurer can be
bound to pay interest on the entire verdict under the terms of its
insurance contract, but the insurer in this case was not contractually
so obligated.
Chief Justice Abrahamson dissented, joined by justices Bablitch and
Bradley. The dissent maintains that "when an insurance company has the
sole right and ability to settle an entire litigation, yet rejects on
behalf of itself and its insured a plaintiff's offer made pursuant to
Wis. Stats. Sec. 807.04(1) to settle for an amount within the policy
limits and the plaintiff subsequently recovers a total judgment greater
than or equal to the amount offered, the insurer is responsible for
penalty interest" on the entire amount recovered against both insured
and insurer.
Constitutional law
Qualified Immunity - Clearly Established Rights
Penterman v. WEPCO, No.
96-0164 (filed 2 July 1997)
Plaintiffs claimed that their farm operations suffered because of
"stray voltage" from WEPCO's power lines. They also sued a state
employee, Dasho, who headed the Wisconsin Public Service Commission's
Stray Voltage Analysis Team. The circuit court dismissed the action
against Dasho in part because he was entitled to qualified immunity. The
court of appeals affirmed but did not reach the qualified immunity issue
because it concluded that there was no legally cognizable claim against
Dasho.
The supreme court, in an opinion written by Justice Geske, affirmed.
Although the case presented "unique legal claims," the court concluded
that plaintiffs failed to show that Dasho violated a "clearly
established constitutional right." Thus, Dasho was entitled to qualified
immunity and the court declined to consider whether the plaintiffs
stated a claim for which relief could be granted. Justice Geske
cautioned that the opinion made "no new law" and that the court's
"qualified immunity inquiry is fact-specific, limited to the facts
alleged in the pleadings." Readers interested in the particular facts
should review the court's opinion.
Corrections
County Jails - Authority of Dept. of Corrections to Place Probation
and Parole Violators in County Jails Over Sheriff's Objection
Wisconsin Dept. of Corrections v.
Kliesmet, No. 96-2292 (filed 25 June 1997)
The key issue in this case is whether the Wisconsin Dept. of
Corrections (DOC) can place its probation and parole violators in a
county jail over the safety objections of the sheriff. At its core the
case presented a question of statutory interpretation involving section
302.31 of the Wisconsin Statutes, which provides that "the county jail
may be used ... for the temporary detention of persons in the custody of
the department [of corrections]."
In a unanimous decision authored by Justice Bradley, the court
concluded that the Legislature intended by section 302.31 to grant the
DOC discretion to keep alleged violators of probation or parole in
county jails. However, considering the statutory and common law
authority establishing a sheriff's duty and authority to act in the
interest of jail safety, the court also discerned a legislative intent
to limit DOC's section 302.31 authority to those instances in which a
sheriff determines that taking additional DOC detainees would result in
such overcrowding as to constitute an unacceptable risk of harm to
inmates, deputies and jail staff.
In making this decision, the court indicated its awareness of the
administrative difficulties that DOC faces in administering its
probation and parole functions. However, in the absence of a clear
directive to the contrary, the court refused to conclude that the
Legislature intended that the DOC's authority to keep its detainees in
the county jail should trump the sheriff's duty to maintain safety at
the jail.
Because of the need to give the Legislature sufficient time to
address the administrative difficulties that DOC will face if it is
unable to use county jails to house its detainees, the court delayed the
effective date of the decision in this case for one year.
Criminal procedure
Search and Seizure - School Searches
State v. Angelia D.B., No.
95-3104 (filed 20 June 1997)
A high school student, Angelia, was charged with carrying a concealed
weapon - a large knife found hidden in her clothes. The circuit court
suppressed the knife and all evidence derived from the search based on
the conclusion that it violated Angelia's constitutional rights. On
certification from the court of appeals, the supreme court, in an
opinion written by Justice Geske, reversed.
Applying New Jersey v. T.L.O. (1985), the supreme court held
that it was "permissible for school officials who have a reasonable
suspicion that a student may be in possession of a dangerous weapon on
school grounds to request the assistance of a school liaison officer or
other law enforcement officials in conducting a further investigation."
Recognizing that T.L.O. did not address this question, the
court further concluded that "an application of the T.L.O.
reasonable grounds standard, and not probable cause, to a search
conducted by a school liaison officer at the request of and in
conjunction with school officials of a student reasonably suspected of
carrying a dangerous weapon on school grounds is consistent with both
the special needs of public schools recognized in T.L.O. and
with decisions by courts in other jurisdictions."
On the record before it, the court found that the search was both
reasonable at its inception and was conducted in a way that was
"reasonably related in scope to the circumstances justifying the
interference in the first instance."
Chief Justice Abrahamson, joined by Justice Bradley, concurred. They
agreed that the search was legal because it was supported by probable
cause; thus, the majority did not have to "reach out to adopt a new
lower standard to support the search."
Right to Counsel - Competency
State v. Klessig, No.
95-1938-CR (filed 24 June 1997)
Klessig was charged with burglary and bail jumping. After several
lawyers withdrew their representation of him, with Klessig's blessing,
Klessig notified the court that he would represent himself at the
scheduled trial. The trial judge did not "engage in an on-the-record
colloquy with the defendant concerning either the knowing or voluntary
waiver of his right to counsel," nor did the judge inquire into the
defendant's competency to represent himself and proceed pro se. A jury
convicted him of burglary. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Wilcox, reversed
and remanded the case for an evidentiary hearing to determine: a)
whether there was a knowing, voluntary and intelligent waiver of the
right to counsel; b) whether an adequate and meaningful nunc pro tunc
hearing can be conducted on Klessig's competency to represent himself;
and, if so, c) whether Klessig was competent. Overruling a prior case,
the court held that circuit courts must conduct an "on-the-record
colloquy to ensure that the defendant: "1) made a deliberate choice to
proceed without counsel, 2) was aware of the difficulties and
disadvantages of self-representation, 3) was aware of the seriousness of
the charge or charges against him, and 4) was aware of the general range
of penalties that could have been imposed on him." Absent such a record,
no valid waiver can be found except through a meaningful nunc pro tunc
hearing. The state must establish the validity of the waiver by clear
and convincing evidence.
The court also held that "[i]n Wisconsin, there is a higher standard
for determining whether a defendant is competent to represent oneself
than for determining whether a defendant is competent to stand trial.
This higher standard ... stems from the independent adoption of the
higher standard by the State as allowed under Godinez v. Moran,
509 U.S. 389 (1993)]."
Chief Justice Abrahamson joined the majority's mandate but wrote
separately to call attention to the possibility that the rule announced
by the majority may be "irreconcilable" with Godinez.
Sentencing - Setting Parole Eligibility Date
Beyond Defendant's Anticipated Life Span
State v. Setagord, No.
95-0207-CR
State v. Downing, No.
96-1264-CR (filed 1 July 1997)
Section 973.014(1)(b) of the Wisconsin Statutes provides that when a
court sentences a person to life imprisonment, it shall make a parole
eligibility determination regarding the person and may choose the option
of providing that the person is eligible for parole on a date set by the
court. If the judge exercises this option, he or she may set "any later
date" than that provided in section 304.06(1) (the general parole
eligibility statute), but may not set a date that occurs before the
earliest possible parole eligibility date as calculated under section
304.06(1).
For their roles in a hostage-taking (a Class A felony) and attempted
jail break, the defendants received mandatory life sentences. Invoking
section 973.014(1)(b), the judge set parole eligibility dates for each
of them far beyond their respective anticipated life spans.
Before the supreme court both defendants argued that the statute does
not authorize the circuit court to effectively deny parole by setting a
parole eligibility date beyond a defendant's anticipated lifetime. A
majority of the supreme court, in a decision authored by Justice Geske,
concluded that the statute unambiguously grants the circuit court
discretion to impose a parole eligibility date beyond a defendant's
expected life span. In so holding the majority rejected the argument
that the statute commands that a realistic opportunity for parole be
maintained in the setting of a parole eligibility date, and further held
that the authority to impose a parole eligibility date beyond a
defendant's expected lifetime does not violate the separation of powers
doctrine. Finally, in the context of this case, it concluded that the
circuit court did not erroneously exercise its discretion in setting
parole eligibility dates.
Justice Bablitch filed a dissenting opinion in which Chief Justice
Abrahamson and Justice Bradley joined.
Penalty Enhancer for Committing a Crime
While Possessing a Dangerous Weapon -
Nexus Requirement - Retroactivity of State v. Peete
State v. Howard, No. 95-0770
(filed 26 June 1997)
In State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (l994), the
Wisconsin Supreme Court held that when a defendant is charged with the
penalty enhancer of committing a crime while in possession of a
dangerous weapon, section 939.63 of the Wisconsin Statutes requires the
state to prove a nexus between the underlying crime and the possession
of the weapon. Because this nexus is an element of the penalty enhancer,
the jury must find the nexus element beyond a reasonable doubt.
The defendant in this case was charged in 1989 with aiding and
abetting the unlawful delivery of a controlled substance while
possessing a dangerous weapon. At his trial in 1990 the jury received no
instruction on the nexus requirement that was articulated four years
later in Peete and it was not asked to make any specific
finding on that element. After his direct appeals were exhausted and
following the decision in Peete, the defendant requested post
conviction relief pursuant to section 974.06 of the Wisconsin Statutes
based upon the supreme court's holding in Peete. The circuit
court denied the motion and the court of appeals reversed. The supreme
court, in a unanimous decision authored by Justice Geske, affirmed the
court of appeals.
The supreme court concluded that the Peete holding applies
to situations of actual as well as constructive possession (the present
case involving actual possession). The court further had to determine
whether the rule announced in Peete applies retroactively to
cases on collateral review like the present one, and held that it does
so apply.
The court also had to deal with the state's position that the
defendant's motion for section 974.06 relief was barred by the decision
in State v. Escalona-Naranjo, 185 Wis. 2d 168, 5l7 N.W.2d 157
(1994). In that case the court interpreted section 974.06(4) to require
that if a ground for relief was not raised in an original, supplemental
or amended motion, the defendant has to show a sufficient reason why he
or she did not assert that ground for relief earlier; otherwise the
defendant's claim is barred. The court held that because the defendant
in this case could not have foreseen the effect of Peete at the
time of his original appeal, his motion for a new trial based on
Peete is not barred by Escalona-Naranjo.
Finally, the court considered and rejected the state's position that
the failure to instruct the jury about the nexus requirement for the
weapons enhancer was harmless error. The jurors in this case were
precluded from considering whether the defendant possessed a dangerous
weapon to facilitate the commission of the predicate crime. The absence
of the nexus instruction thus rendered the conviction on the penalty
enhancer fundamentally unfair.
Evidentiary Privileges - Defense Discovery
State v. Solberg, No.
95-0299-CR (filed 1 July 1997)
The defendant appealed his conviction for third-degree sexual
assault. He claimed that the circuit court should have granted him
access to the victim's medical records, which may have revealed
impeaching evidence. The court of appeals reversed the conviction and
remanded for a determination of whether the victim had consented to the
circuit court's in camera review of her medical and psychiatric
records.
The supreme court, in an opinion written by Justice Wilcox, reversed
the court of appeals. First, the court held that trial courts "should
conduct an in camera review of privileged medical records when the
defendant makes a 'preliminary showing that the sought-after evidence is
material to his or her defense,' and the privilege holder consents to
review." In this case, the prosecutor conceded that the defense had made
the required preliminary showing. The supreme court examined the sealed
record in this case and found a written release that established the
victim's consent to the review. (The court observed that the "better
practice" is to have the circuit court interview the victim on the
record and thereby make a determination of the victim's voluntary
consent. Whatever procedure is used, the victim should be aware that he
or she does not have to consent.)
On the record before it, the court also held that the trial judge did
not abuse his discretion in denying the defendant access following the
in camera review. "If the circuit court determines that the records
contain [material evidence], it should be disclosed to the defendant if
the patient consents to such a disclosure. If the records do not contain
relevant information material to the defense, the circuit court must not
disclose the records to the defendant." Besides reviewing the records in
camera, the trial judge also interviewed a doctor who treated the
victim. The judge acted within his discretion when relying upon the
doctor's opinion that despite occasional "flashbacks" the victim would
have known the difference between fantasy and reality at all times. (The
court also suggested that such ex parte interviews should be
recorded.)
Justice Bradley, joined by Chief Justice Abrahamson, concurred. They
thought that the majority's approach invited a "piecemeal resolution" of
"important, complex, and interrelated" issues. The court should have
stopped after finding that the victim had consented to the review.
Justice Bablitch dissented on the ground that plain error occurred
when the trial judge failed to record his conversation with the victim's
doctor.
Insurance
"Sick Building" - Pollution Exclusion
Donaldson v. Urban Land Interests
Inc., No. 95-3015 (filed 24 June 1997)
In this "sick building" case, the plaintiffs alleged that an
inadequate ventilation system caused an excessive accumulation of carbon
dioxide in their work area resulting in various physical maladies. A
defendant insurer was granted summary judgment based on its pollution
exclusion. A divided court of appeals agreed that the pollution
exclusion clause vitiated coverage for any damages.
The supreme court, in an opinion written by Justice Bradley,
reversed. The pollution exclusion clause in this policy was ambiguous;
thus, the insured could reasonably expect coverage for the claims lodged
against it. Exhaled carbon dioxide is "universally present and generally
harmless in all but the most unusual instances." The court was "hesitant
to conclude that a reasonable insured would necessarily view exhaled
carbon dioxide as in the same class as 'smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste.'"
Justice Steinmetz dissented.
Public Benefits
Medical Assistance - Divestment - Failure to Claim Against Deceased
"Community Spouse's" Estate
Tannler v. Wisconsin Dept. of Health
and Social Services, No. 96-0118 (filed 24 June 1997)
The issue in this case was whether an institutionalized person's
failure to assert a claim against his or her deceased "community
spouse's" estate constitutes a divestment of assets under the Medical
Assistance (MA) program. A "community spouse" is a person who is married
to an institutionalized person but is not himself or herself an
institutionalized person.
Petitioner Tannler lives in a nursing home. She has received MA since
early in 1993. Her husband died in 1994 leaving a will that bequeathed
all of his assets, both real and personal property, to his grandson and
his grandson's wife. He left nothing to the petitioner. The petitioner,
represented by a guardian in the estate of her deceased husband, did not
contest the will, nor did she file any elections or select any property
passing under her husband's will.
The petitioner continued to receive MA benefits until l995 when the
Department of Health and Social Services (DHSS) informed her that it was
terminating her eligibility. DHSS asserted that the petitioner's failure
to contest, select or elect against her husband's will constituted a
divestment of assets which rendered her ineligible for MA.
In a majority decision authored by Justice Steinmetz, the supreme
court held that the failure of an institutionalized spouse to assert a
claim against the estate of his or her deceased spouse constitutes a
divestment for purposes of determining MA eligibility. Under Wisconsin
law, a person is entitled by statute to a portion of his or her spouse's
estate. If the institutionalized person does not make a claim against
his or her community spouse's estate, this failure to contest is a
conscious act that constitutes divestment. Divestment results in MA
ineligibility. See Wis. Stat. 49.453.
To conclude otherwise, said the court, would be contrary to the
purposes of the divestment provisions of MA legislation. The practical
effect of the petitioner's inaction is that persons other than the
community spouse or the institutionalized spouse will receive the
financial benefits of the conscious act to reject her share of the
estate. The result will be that the state's taxpayers will bear the
burden of supporting the petitioner while she resides in the nursing
home and receives MA. If she had not rejected her share of her spouse's
estate, then those assets would have been available to provide for her
maintenance and health care without burdening the taxpayers.
Chief Justice Abrahamson filed a concurring opinion.
Taxation
Agricultural Land Assessments - Wis. Stat. section 70.32(2r) -
Uniformity Clause
Norquist v. Zeuske, No.
96-1812-OA (filed 25 June 1997)
Section 70.32(2r) of the Wisconsin Statutes took effect Jan. 1, 1996.
It provides for three phases for transforming agricultural land
assessments for property taxes from a market value system to a use value
system. The first phase, created by section 70.32(2r)(a), freezes
assessments of agricultural land at the Jan. 1, 1995, assessment level.
This freeze, which began in 1996, will last for at least two years.
Section 70.32(2r)(b) provides for a mixed assessment system that will
last from the end of the initial freeze until 2009. During this period,
agricultural land will be assessed based partly upon the frozen market
value assessments and partly upon the land's agricultural use value. In
each year during this phase, the market value assessment is reduced by
10 percent and the use value portion of the assessment is increased by
10 percent. In 2009 the mixed assessment period ends and agricultural
land will be assessed based entirely on its agricultural use value.
The petitioners brought this original action to challenge the
constitutionality of section 70.32(2r). They contended that the freeze
established in section 70.32(2r)(a) violates the Uniformity Clause of
the Wisconsin Constitution. They further argued that section
70.32(2r)(b) also violates the Uniformity Clause because the market
value portion of the mixed assessment is based upon the frozen amount
designated in section 70.32(2r)(a). Respondent Zeuske, the Secretary of
the Wisconsin Dept. of Revenue, disagreed with the petitioners'
contentions and further argued that the petitioners lacked standing to
challenge the statute.
In a unanimous decision authored by Justice Wilcox, the supreme court
concluded that one of the petitioners actually owns agricultural land,
that his status as an agricultural landowner is logically related to his
claim that the statute violates the Uniformity Clause, that he has
demonstrated the injury necessary for standing inasmuch as the value of
his agricultural land could decrease and will inevitably change by a
degree different from other agricultural land, and thus he has standing
to challenge the constitutionality of section 70.32. [The court did not
consider the standing of the other petitioners.
However, the court concluded that the record in this case is not
sufficiently developed and that a decision on the constitutionality of
the statute would thus be premature. The petitioner who has the standing
to bring this action has not offered any evidence that his property is
overassessed or that other agricultural land is underassessed. In
determining that this petitioner's action is premature, the court did
not declare the statute either constitutional or unconstitutional. That
determination must await a more developed record.
To prove the statute unconstitutional, an owner of agricultural land
will have to 1) satisfy an initial burden of proving that his or her
agricultural land is overassessed and that other agricultural land is
underassessed as a result of the statute, and 2) demonstrate beyond a
reasonable doubt that section 70.32(2r) does not create uniform taxation
of agricultural land to the extent practicable.
Torts
Discovery Rule - Sexual Assaults - Minors
John BBB Doe v. Archdiocese of
Milwaukee, No. 94-0423 (filed 27 June 1997)
The supreme court heard seven consolidated appeals. All involved
plaintiffs who alleged that as children they were sexually abused by
priests. All of their complaints were dismissed either because they were
time barred, or failed to state a claim for which relief could be
granted, or on public policy grounds. The court of appeals certified the
following question: "Does the discovery rule save an otherwise untimely,
noninces-tuous, sexual assault claim against the individual alleged
perpetrator when the alleged victim was a minor, and the alleged
perpetrator was a person in a position of trust vis-a-vis the child
victim?"
The supreme court, in an opinion written by Justice Geske, held that
the claims of each plaintiff were time barred by the statute of
limitations for minors. Each plaintiff discovered, or in the exercise of
reasonable diligence, should have discovered that he or she was injured
at the time of the alleged assaults by the last date of the alleged
multiple assaults. The court's decision is extremely fact-intensive. In
the case of five plaintiffs, the claims alleged intentional acts,
immediate injuries, and an "obvious" causal link. These claims accrued
by the time of the last incident of sexual assault and are governed by
the statute of limitations for minors, which provides for a longer time
period for younger victims. The court also declined to equate these
cases with incest allegations, which are covered by a longer time
period. Finally, the court held "that a claim of repressed memory of
past sexual abuse does not delay the accrual of a cause of action for
nonincestuous sexual assault, regardless of the victim's minority and
the position of trust occupied by the alleged perpetrator."
Chief Justice Abrahamson concurred but wrote separately to voice her
continuing displeasure with Pritzlaff v. Archdiocese of
Milwaukee (1994).
This column summarizes all decisions
of the Supreme Court. 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
