By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Administrative Law | Business Law
| Contracts | Courts | Criminal Law | Criminal Procedure | Death Certificate | Education | Evidence | Family Law | Insurance | Municipal Law | Public Benefits | Real Estate | Sexual Predators | Torts | Zoning |
Administrative Law
Certiorari Review of Decision by County Committee - Service of
Writ
Weber v. Dodge County
Planning and Development Dept., No. 99-1116 (filed 21 Oct.
1999) (ordered published 22 Nov. 1999)
The appellants appealed from an order of the circuit court dismissing
their petition for certiorari review of an action of the Dodge County
Planning and Development Committee. The circuit court ruled that it
lacked subject matter jurisdiction because the writ was misdirected to
the county's Planning and Development Department, rather than to the
actual deciding agency, which was the Planning and Development
Committee. In a decision authored by Judge Eich, the court of appeals
reversed.
The decision the appellant sought to review was the committee's
denial of his application for approval of a final subdivision plat.
Pursuant to sections 62.23(7)(e)10
and 236.13(5)
of the Wisconsin Statutes, any person aggrieved by the failure to
approve a plat may appeal, via certiorari, from the decision of the
"approving authority." The statutes do not expressly state to whom the
appeal papers should be directed.
In support of service of the writ upon the department, the appellant
argued that all of his inquiries to the county regarding the plat and
his approval application were directed to the department, and that all
correspondence from the county to him on the subject was not from the
committee, but from the department, on its own letterhead. In fact, the
final order denying the application for plat approval was on the
department's letterhead and was sent to the appellant by the department,
along with a notice that he had a right to seek review of the order in
the circuit court. The evidence further revealed that, while the
committee is a functioning body - a standing committee of the Dodge
County Board of Supervisors - it does not have an office, a staff (other
than employees of the department and/or other county employees), or any
real, tangible identity apart from its relationship to the county
board.
The court of appeals concluded that where there is an ambiguity in
service requirements created through the interaction of various
statutes, case law, and the specific circumstances of the case (here the
pervasive use of the department's personnel and stationary in the
conduct of the committee's business with regard to the appellant's
petition and the absence of any ascertainable independent identity on
the part of the committee), the appellant could reasonably believe that
his appeal of the decision was properly prosecuted against the
department, whether on its own behalf or as the committee's agent.
Business Law
Contracts - Misrepresentation - "Perverse" Verdicts -
Franchises
Kinship Inspection Serv.
Inc. v. Newcomer, No. 98-2043 (filed 24 Sept. 1999) (ordered
published 16 Dec. 1999)
The sellers sold their home inspection business to the buyers, who
paid some cash and signed a note for the balance. The buyers later sued
the sellers alleging a violation of the Wisconsin Franchise Investment
Law (WFIL), misrepresentation, and fraud. The judge dismissed the WFIL
claim and a jury found that the seller had made a misrepresentation upon
which the buyers relied but it awarded no damages (the note was,
however, effectively cancelled).
The court of appeals, in an opinion written by Judge Snyder, affirmed
in part and reversed in part. First, the court found that the evidence
adequately supported the jury's verdict. Second, it rejected the
sellers' argument that the verdict was "perverse." Verdicts are perverse
when the jury refuses to follow the judge's instructions or the verdict
"reflects highly emotional, inflammatory or immaterial considerations."
Here the evidence and instructions supported the jury's finding that the
contract was void because of a misrepresentation and the seller's
failure to provide a customer list. Third, the sellers were not victims
of "trial-by-ambush." The evidence supporting the misrepresentation
claim was available through discovery.
On the cross-appeal, the court reversed that part of the judgment
dismissing the buyers' WFIL claim. The business in question did involve
a franchise. The sellers therefore were obligated to submit various
documents, including projected earnings and supporting data. The
sellers' failure to timely provide this information created a valid
claim under the WFIL.
Contracts
Road Construction - Third-party Beneficiaries - Damages
Sussex Tool & Supply
Inc. v. Mainline Sewer and Water Inc., No. 98-2649 (filed 10
Nov. 1999) (ordered published 16 Dec. 1999)
This case raised one primary issue: "whether a small business whose
profits allegedly suffered due to decreased road accessibility during
sewer construction may maintain a suit against the contractor for breach
of contract and negligence." A tool company sued a village and a
contractor who installed a sewer and water system. The company claimed
that its customers lacked "access" during construction and that its
business suffered. The trial court dismissed the company's suit.
The court of appeals, in an opinion written by Judge Brown, affirmed
the trial court's decision. First, the company lacked standing as a
third-party beneficiary of the construction contract. The contractual
language did not "demonstrate any intent to confer third-party
beneficiary status on individual members of the public to sue for purely
economic interests." The "primary purpose of any public works contract
is the benefit of the public." Second, the court also rejected the
company's negligence claim. Public policy militated against allowing the
company to recover alleged "lost profits" as opposed to damages arising
from personal injury or property damage. Permitting such damages would
expose contractors to "heavy and unpredictable" burdens.
Courts
Subject Matter Jurisdiction - Comity - Insurer Rehabilitation
Isermann v. MBL Life
Assurance Corp., No. 98-2846 (filed 20 Oct. 1999) (ordered
published 22 Nov. 1999)
A life insurance company, MBL, was in the midst of liquidation and
rehabilitation in New Jersey. Its assets and liabilities were
transferred to an eventual successor, MBLLAC. The plaintiff, an insured,
brought this action for alleged breach of contract and bad faith against
MBL. The circuit court dismissed the action, ruling that it lacked
subject matter jurisdiction.
The court of appeals, in an opinion written by Judge Snyder, affirmed
but on different grounds. First, the trial court undoubtedly possessed
subject matter jurisdiction under the Wisconsin statutes and
constitution. Thus, the trial court erred in ruling in MBL's favor on
this ground. Second, the principle of comity did, however, justify the
suit's dismissal. "[B]oth Wisconsin and New Jersey have enacted very
similar insurance rehabilitation and liquidation acts, both of which
seek to satisfy the same public policy objectives. In addition, we
believe the policy supporting comity outweighs any detriment to the
resident policyholder." New Jersey and Wisconsin are reciprocal states
under chapter
645 of the Wisconsin Statutes. Both states "look to employ more
effective methods for rehabilitating insurers, improve efficiency of the
liquidation process while reducing the amount of litigation, establish
cooperation between states to reduce problems of interstate
rehabilitation, and provide a comprehensive scheme to address insurance
rehabilitation." Conceding that Wisconsin policyholders are
inconvenienced by pursuing their claims in a foreign state, the goal of
a "uniform and efficient rehabilitation process" outweighed this
concern. The court then reviewed the specifics of the New Jersey
rehabilitation plan and concluded that the plaintiff had to litigate his
issues in the New Jersey rehabilitation court.
Criminal Law
Perjury - Prior Acquittal
State v. Canon,
No. 98-3519-CR (filed 21 Sept. 1999) (ordered published 25 Oct.
1999)
The state appealed the dismissal of a perjury charge. In a prior
case, the defendant had been tried on charges of drunk driving and
related offenses. The jury acquitted him after he testified that his
buddy drove the truck, not him. Later, evidence surfaced that the
defendant had lied about not driving the truck, which led to the perjury
charge.
The court of appeals, in an opinion authored by Judge Myse, affirmed
the dismissal of the perjury charge. Applying principles of double
jeopardy, the court held that "an issue of ultimate fact cannot be
relitigated even when the judgment was obtained by the defendant's false
testimony." The court predicated its holding on U.S. Supreme Court
precedent and "overwhelming federal circuit authority."
Judge Cane dissented because the offenses were different and arose
out of "separate criminal episodes" (that is, drunk driving and lying at
trial).
Habitual Criminality - Five-year Period for Computing Habitual
Criminality Status - Time in Custody on Parole Hold
State v. Price,
No. 99-0746-CR (filed 27 Oct. 1999) (ordered published 22 Nov. 1999)
The Wisconsin habitual criminality ("repeater") statute permits an
enhanced sentence if the defendant was convicted of a felony or three
misdemeanors during the five years immediately preceding the commission
of the crime for which the offender is presently being sentenced. The
statute specifically provides that "in computing the preceding five-year
period, time which the actor spent in actual confinement serving a
criminal sentence shall be excluded." See Wis. Stat. §
939.62.
The issue in this case was whether confinement time that the
defendant spent on various parole holds qualifies as "actual confinement
serving a criminal sentence" thereby extending the five-year period for
computing habitual criminality status. In a decision authored by Judge
Nettesheim, the court of appeals concluded that the time spent by an
offender on parole holds qualifies as confinement under a criminal
sentence within the meaning of the habitual criminality statute.
Therefore, that time is excluded in computing the five-year period under
the repeater statute.
Carjacking Resulting in Death - Causation - Substantial Factor -
Immunized Testimony Instruction
State v. Miller,
No. 98-2089-CR (filed 17 Nov. 1999) (ordered published 16 Dec. 1999)
The defendant was convicted of numerous charges including operating a
vehicle without the owner's consent resulting in the death of another,
contrary to Wis. Stat. section
943.23(1r), a Class A felony. Among the issues on appeal was whether
there was sufficient evidence presented to show that his taking of the
vehicle from the victim was a substantial factor in causing the victim's
death.
The defendant and two others devised a plan to steal cocaine from the
victim during a purported drug transaction that was to occur the
following day. On that day the victim arrived at the residence of one of
the conspirators but did not have any drugs. As a result, the defendant
and another seized the victim and drove off with him in his vehicle in
order to obtain drugs from the victim's residence. The victim sat in the
front passenger seat of his car and the defendant sat behind him with a
firearm. During the trip the victim attempted to escape from the vehicle
and the defendant shot him in the back. The victim later died.
In a decision authored by Judge Snyder, the court of appeals
concluded that the taking of the victim's vehicle played a prominent
role in, and set into motion events leading to, the victim's death and
that there was therefore sufficient evidence to establish that the
defendant's theft of the vehicle was a substantial factor in causing the
victim's death. A "substantial factor" contemplates not only the
immediate or primary cause of a result, but other significant factors
that lead to the ultimate result. Based on the evidence described above,
the court concluded that a reasonable jury could have inferred that were
it not for the defendant's taking of the car, the victim never would
have been shot because he would not have been trying to escape from the
vehicle. Under these circumstances, the theft of the car was a
substantial factor in causing the victim's death because the taking of
the car set into motion the events that led to his death.
The defendant also argued on appeal that the trial court erred in
refusing to instruct the jury that one of the defense witnesses had been
granted immunity from prosecution. The court concluded that the judge
did not err in refusing to instruct the jury because the witness was not
given immunity in return for testifying and because he testified on
behalf of the defendant, not the state. The court was persuaded that
where an immunized witness testifies favorably for the defense, an
immunized witness jury instruction is not required.
Criminal Procedure
Preliminary Hearings - Reissuance - New and Unused Evidence -
Standard of Review
State v. Johnson,
No. 98-2881-CR (filed 31 Oct. 1999) (ordered published 22 Nov. 1999)
The defendant was charged with robbery and bail jumping in connection
with an alleged "holdup" of a gas station. The suspect never actually
displayed a weapon but he had made menacing gestures suggesting he was
armed. The court commissioner dismissed the charges after a preliminary
examination. The state reissued the same charges and presented more
evidence at the second preliminary examination. The court commissioner
found probable cause and ruled that the state's proof constituted "new
and unused evidence" within the meaning of the case law. The circuit
court reversed this determination, finding that the state's additional
evidence was merely cumulative and corroborative of that presented at
the first preliminary hearing.
The court of appeals, in a decision written by Judge Anderson,
reversed the circuit court and granted the state's request that the
charges be reinstated. The court took up two issues. First, it held that
a de novo review standard governs the circuit court's reversal of a
court commissioner's finding that the state presented new and unused
evidence. Under existing case law, the de novo standard applies when the
circuit court reviews a court commis-sioner's probable cause
determination, so by the same logic the "new and unused evidence" issue
also should be scrutinized in this way.
Second, based on its de novo review of the record the court of
appeals agreed that the state had presented "new and unused evidence."
The gas station attendant provided more detail about the events and the
state produced a "new witness," the defendant's cell mate. None of this
was "cumulative" to the first preliminary hearing. The new evidence also
demonstrated a reasonable probability that the defendant had threatened
force, an element of robbery.
Finally, the state also "re-presented evidence at the second
preliminary hearing that was not considered at the first preliminary
hearing." Thus "[e]vidence that has been presented to the court but not
taken into account when the court made its decision during the initial
preliminary hearing is considered 'unused,' and the state may use such
evidence as support for its reissuance of a complaint."
Jury Selection - Statutory Bias - Brothers-in-Law
State v.
Czarnecki, No. 98-2406-CR (filed 1 Sept. 1999) (ordered
published 22 Nov. 1999)
The defendant was convicted of multiple felonies after a jury trial.
His motion for postconviction relief also was denied.
The court of appeals, in an opinion written by Judge Snyder,
reversed. The central issue was "whether a prospective juror who is the
brother-in-law of a state witness must be struck for cause as a
'relative by blood or marriage to the third degree of a state witness.'"
Case law involved brothers related by blood, but the court was "no less
convinced that the court's per se rule applies with equal force to
persons related by marriage." Family relations imply bias as a matter of
law. Applying the "chart" depicted in "Figure
852.03(2), Stats.," the court determined that "both a brother and a
brother-in-law are two degrees removed for purposes of determining juror
bias." The court held that such a relationship also constituted
"statutory bias" under the supreme court's most recent typology of juror
bias. This error deprived the defendant of a statutorily guaranteed
right to exercise all of his peremptory challenges and thus reversal was
the appropriate remedy.
Guilty Pleas - Withdrawals - Exculpatory Evidence
State v. Sturgeon,
No. 98-2885-CR (filed 17 Nov. 1999) (ordered published 16 Dec. 1999)
The defendant pled guilty to burglary and was sentenced. Later the
defendant came into possession of allegedly exculpatory evidence
relating to his confession. The judge, however, denied his
postconviction motion to withdraw the guilty plea.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed and set forth "the proper methodology for evaluating a guilty
plea withdrawal request based on the postplea discovery of exculpatory
evidence within the exclusive control of the State." Under prevailing
case law, a defendant who moves to withdraw a guilty plea as a matter of
right must show: "1) that a violation of a constitutional right has
occurred; 2) that this violation caused the defendant to plead guilty;
and 3) that at the time of the plea, the defendant was unaware of the
potential constitutional challenge to the cause against him or her
because of the violation."
The defense met the first element by showing that the state withheld
exculpatory evidence that was within its exclusive possession. Roughly
the same evidence related to the third element; namely, the defendant
was unaware that the police had "memorialized" his exculpatory
statements in the withheld police report. As for the causal element,
"the court must be convinced that the undisclosed information was
controlling in the defendant's decision to plead." A number of factors
pertain to this determination, including the relative strength and
weakness of the parties' cases, the "persuasiveness of the withheld
evidence," the defendant's expressed reasons for pleading guilty, the
defendant's "benefits" accruing from the guilty plea, and the
"thoroughness of the plea colloquy." The record satisfied the causal
element.
Death Certificate
Corrections - "Cause" of Death - "Evolution" of the Disease -
Medical Malpractice
Neuman v. Circuit
Court, No. 99-0714 (filed 16 Nov. 1999) (ordered published 16
Dec. 1999)
The plaintiff appealed an order amending his deceased wife's death
certificate. On appeal he argued that the certificate "should have
included in the cause of death section ... a description of the chain of
claimed medical malpractice leading to her death." The court of appeals,
in an opinion written by Judge Hoover, affirmed. After an evidentiary
hearing, the circuit court did amend the death certificate to "a single
cause of death, sepsis, which evolved from the chemotherapy's
suppression of [the deceased's] immune system." Section
69.18(2)(f) of the Wisconsin Statutes requires that death
certificates name the fatal disease and its "evolution." The possible
role of any alleged medical malpractice does not fall within this
language.
Education
Private Schools - Transportation Costs - Private Transport
Providence Catholic School
v. Bristol School Dist. #1, No. 98-3390 (filed 20 Oct. 1999)
(ordered published 22 Nov. 1999)
By law, public high school districts (PSDs) must provide private
schoolchildren transportation to and from their schools. This case
involves PSDs that contracted with the students' parents to provide such
transportation. The parents in turn gave the contract money to a private
Catholic school to pay for the busing that the private school had
arranged. Conflict arose when the allotted payment for the 1997-98
school year failed to cover the actual cost. The private school
requested that the PSD either provide actual transportation or pay
additional monies. The PSD refused and notified parents that it would
continue to contract with them rather than provide actual busing. The
students sued the PSDs.
The court of appeals, in an opinion written by Judge Anderson,
affirmed a series of rulings by the circuit court. The primary
contentions and the court's holding are summarized as follows. The PSDs
filed a cross-appeal from the trial court's denial to dismiss on
jurisdictional grounds. The court of appeals first held that the circuit
court retained subject matter jurisdiction even though an administrative
agency (the DPI) offered a remedy. In short, the trial judge had no
reason to believe "that this issue required the DPI's specialized
knowledge." Second, the PSDs had "actual notice" of the students' claims
as permitted by section
893.80(1)(a) of the Wisconsin Statutes. Third, the trial court did
not err by determining that the students lived within the approved
geographic area as regulated by section
121.51(1) of the Wisconsin Statutes.
The court of appeals then turned to three issues raised by the
students in their appeal. First, the PSDs properly complied with their
statutory obligations by contracting with parents or guardians to
provide the necessary transportation. The court construed sections
121.54 and 121.55 in a way that harmonized their meanings and
effectuated the Legislature's purpose. Second, a one-year notice
provision in section
121.54(2)(b)2 applied only to high school districts; "[n]owhere in
the statute does it mention that schoolchildrens' parents or guardians
should receive notice." Third, a 30-day notice provision in section
121.55(3) applied only to a "reduced formula" set forth in the
statute and apparently not implicated in this case.
Evidence
Cognitively Impaired Witness - Improper Bolstering
State v.
Tutlewski, No. 98-2552-CR (filed 13 Oct. 1999) (ordered
published 16 Dec. 1999)
The court of appeals, in a decision authored by Judge Snyder,
reversed the defendant's multiple felony convictions for sexually
assaulting a cognitively disabled woman. During trial the prosecution
called a teacher to testify that she had taught cognitively disabled
students for 27 years. The witness's students included the victim. The
witness testified that the victim and her husband were "honest" and
"truthful" and that it was not "within their capabilities to lie or be
deceitful."
The court held that this testimony constituted reversible error. It
violated the cardinal rule that no witness, lay or expert, may testify
"that another physically and mentally competent witness is telling the
truth." The expert witness (the teacher) could have properly discussed
the "nature of cognitive disabilities and how such mental impairments"
affect one's ability to accurately perceive, recall, and narrate events.
The expert's opinion, however, crossed the line and was not harmless
error.
Family Law
Divorce - Property Division - Use of Coverture Fraction to Divide
Retirement Account
Hokin v. Hokin,
No. 98-3680 (filed 21 Oct. 1999) (ordered published 22 Nov. 1999)
The parties married in 1978 and divorced in 1998. A critical issue in
the divorce case was the division of the husband's retirement account,
which by far was the most significant asset. The trial court used a
coverture fraction to divide the asset. In this fraction the numerator
is the length of the marriage (20 years) and the denominator is the
total number of years the husband participated in the retirement plan
(41 years). The court awarded 20/41 of the value of the retirement
account on the date of trial to the husband and then divided 20/41
equally between the husband and wife.
The wife contended on appeal that in using a coverture fraction to
divide the largest asset in the marital estate, the court improperly
relied on the Wisconsin Marital Property Act (Wis. Stat. chapter
766). Under the Marital Property Act a coverture fraction is applied
to determine what portion of a pension is individual rather than marital
property. However, the division of property upon divorce is not governed
by the Marital Property Act but instead by chapter
767. With regard to the division of property on divorce, the only
property that remains individual property and not subject to division is
property acquired before or during the marriage by gift or inheritance,
or funds acquired from either. All other property is part of the marital
estate, and the court is to presume that it is to be divided equally,
although the court may alter the distribution after considering various
factors. Under the divorce statute a spouse's entire interest in a
pension - whether existing before the marriage or acquired during a
marriage - is part of the marital estate subject to division in divorce.
The increase in value of property brought to the marriage, including
interest in a pension, also is part of the marital estate subject to
division in divorce.
The appellate court agreed with the wife that no Wisconsin case has
held that the use of a coverture fraction is or may be permissible to
divide a pension. It did not, however, agree with her conclusion that a
trial court may never do so. Property brought to a marriage is an
appropriate factor to consider in deviating from the presumed equal
division of the marital estate and the coverture fraction may, depending
on the facts in a particular case, be an appropriate way to divide a
spouse's pension as part of the overall division of property. The
inquiry in each case is whether the use of a coverture fraction is a
proper exercise of the court's discretion in dividing the marital estate
of the parties, given the particular facts of the case and the
applicable statutory and case law.
Divorce - Limited-term Maintenance - Substantial Change in
Circumstances
Murray v. Murray,
No. 99-1369-FT (filed 13 Oct. 1999)(ordered published 22 Nov. 1999)
The parties divorced after 25 years of marriage. The family court
approved their marital settlement agreement that resolved all of the
issues between them and the judgment incorporated the agreement by
reference. Among its terms the agreement provided the wife with
limited-term maintenance for 10 years on a downward sliding scale.
With just two payments remaining under the limited-term maintenance
provision, the wife filed a motion for a modification of the judgment,
seeking a "reasonable sum" of maintenance beyond the 10-year termination
date. The circuit court granted the motion and the court of appeals, in
a decision authored by Judge Nettesheim, reversed.
Limited-term maintenance has various purposes. In most cases, it
provides the recipient spouse with funds for training that might lead to
employment, thereby creating an incentive for that spouse to seek
employment or better employment. When used for this purpose,
limited-term maintenance seeks to place the recipient spouse in a
self-supporting economic situation by the end of the maintenance period.
The ability of the family court to modify a limited-term maintenance
award serves as a "safety net" in a situation where the recipient spouse
has not been able to become self-supporting, has not malingered, and has
accepted as much employment as he or she can obtain.
In this case the court of appeals held that the record did not
support the wife's claim that the limited-term maintenance was designed
to provide funds for employment training or to serve as an incentive to
seek more lucrative employment. Among other things the wife testified
that she was satisfied with her employment at the time of divorce, that
she had not sought any other employment during the ensuing years, and
that her current employment situation is what she had contemplated 10
years earlier at the time of the divorce. Thus, the wife did not view
the limited-term maintenance award as designed to provide her with funds
for training that might lead to other, more lucrative, employment or to
provide her an incentive to seek employment. Under these circumstances
the "safety net" provided by a modification of the limited-term
maintenance is neither necessary nor appropriate.
The marital settlement agreement resolved all issues between the
parties. It thus served another of the purposes of limited-term
maintenance: limiting the responsibility of the payor-spouse to a time
certain and avoiding future litigation. In such a setting, absent a
substantial change in circumstances, the parties may rightfully expect
that their disputes are in repose and that they may move on in their
lives with relative certainty.
The court held that the law of change of circumstances should not
require the payor-spouse to finance the unwise or imprudent financial
decisions of the recipient spouse. The court stressed that it was not
speaking of unanticipated financial reversals produced by the recipient
spouse's financial decisions. Rather, it was speaking of financial
decisions that a person should reasonably know would produce economic
difficulty or distress. In this case the wife conducted her financial
affairs as if the limited-term maintenance payments would endure
permanently. But, said the court, it is not the purpose of maintenance -
much less limited-term maintenance - to provide a permanent annuity.
Given the wife's conduct and the other circumstances of this case, the
court concluded that it would be unjust and inequitable to the husband
to break the terms of the parties' agreement and allow for an award of
permanent maintenance.
Marital Property - Pensions - Disposition of Assets When Employee
Murdered the Nonemployee Spouse
Hackl v. Hackl,
No. 99-0499 (filed 7 Oct. 1999) (ordered published 22 Nov. 1999)
Bradley and Diane Hackl were married in 1988. In 1996, as the two
were divorcing, Bradley murdered Diane. He was convicted of the crime
and sentenced to life in prison. Bradley had worked as a union mason for
almost 40 years and had contributed to a pension fund since 1957. From
prison, Bradley applied for and began to receive monthly pension
benefits.
In probate proceedings regarding Diane's estate, her personal
representative asserted that the pension was marital property and
claimed an undivided one/half interest in the pension as an estate
asset. Bradley objected, arguing that Diane's marital property interest
in his pension terminated upon her death, and that the pension must thus
be classified as wholly his individual property. The circuit court
concluded that Diane's interest in Bradley's pension survived her death
and ordered that a constructive trust be imposed on an undivided
one-half of it. In a decision authored by Judge Deininger, the court of
appeals affirmed.
Bradley claimed on appeal that the circuit court erred by failing to
follow sections
766.31(3) and 766.62(5) of the Wisconsin Statutes. Generally, these
statutes provide that a nonemployee spouse's interest in his or her
spouse's "deferred employment benefit plan" terminates upon the
nonemployee spouse's death. There was no dispute that Bradley's pension
fell within the statutory definition of a "deferred employment benefit
plan." However, the court of appeals concluded that the trial court's
order imposing the constructive trust is consistent with the equitable
principle, which has long applied in Wisconsin, that a murderer should
not be allowed to benefit from his or her crime.
The appellate court further concluded that the circuit court
fashioned the proper remedy by imposing a constructive trust on what it
deemed to be Diane's marital property interest in Bradley's pension.
Bradley's pension constituted marital property, and Diane retained an
interest in a portion of the pension until the instant of her death.
Bradley obtained her interest as a consequence of his killing her. The
Restatement of Restitution provides that "where two persons have an
interest in property and the interest of one of them is enlarged by his
murder of the other, to the extent to which it is enlarged he holds it
upon a constructive trust for the estate of the other." The court of
appeals concluded that this was precisely the circumstance presented by
this case.
In footnote the court noted that the provisions of Wisconsin Statutes
section
854.14 (1997-98) were not effective at the time of Diane's death in
1996. Under this statute the "unlawful and intentional killing of the
decedent ... revokes every statutory right or benefit to which the
killer may have been entitled by reason of the decedent's death."
Because the new statute did not apply to Diane's death, and because the
court of appeals decided the present case on common law principles, it
did not consider whether the statute addresses the termination of a
marital property interest under sections
766.31(3) and 766.62(5) that results from an interspousal
murder.
Insurance
Nursing Homes - Terminated Employees - "Personal Injury
Offenses"
St. Paul Fire and Marine
Ins. Co. v. Hausman, No. 99-1125-FT (filed 5 Oct. 1999)
(ordered published 22 Nov. 1999)
Hausman, a licensed social worker, was employed by a nursing home in
1993. After her internal complaints about substandard care for residents
were ignored, she complained to governmental agencies. Later that same
year she was suspended and then terminated by the nursing home, which
cited her poor performance. Hausman later brought an action for wrongful
termination and related claims against her former employer, the nursing
home. The nursing home's general liability insurer, St. Paul, brought
this declaratory judgment action seeking a finding that the policy did
not provide coverage on these claims. The circuit court ruled that St.
Paul did not have coverage for the claims.
The court of appeals, in an opinion written by Judge Peterson,
reversed. Section
50.70(1)(e) of the Wisconsin Statutes prohibits employers from
intentionally retaliating against nursing home residents or employees
who report abuses to state officials. Its "overriding purpose" is to
protect both residents and employees. This purpose was "sufficiently
similar and necessary to ensuring patients' rights" and therefore
qualified "under the insurance policy language as a law similar to a
patient's bill or rights." Finally, it was irrelevant that Hausman's
legal theory of liability was "wrongful discharge"; the nursing home
interfered with her rights and caused damage.
UM Coverage - Unidentified Vehicle
Dehnel v. State Farm Mut.
Auto Ins. Co., No. 98-3187 (filed 30 Sept. 1999) (ordered
published 22 Nov. 1999)
In 1996 Dehnel was driving westbound on a highway when he passed a
semitrailer driving eastbound. As the vehicles passed one another, ice
dislodged from the semitrailer, struck Dehnel's windshield, and injured
him. Dehnel never discovered the identity of the other driver or the
truck's owner. He filed a claim with State Farm under his uninsured
motorist (UM) coverage, which was denied.
The court of appeals, in an opinion written by Judge Roggensack,
affirmed. Dehnel relied entirely upon section
632.32(4)(a) of the Wisconsin Statutes; he conceded that the policy
language did not provide coverage and that his claim sounded solely in
the statute. Case law required "that the unidentified vehicle meet the
criteria of a statutory hit-and-run in order to cause it to be an
uninsured vehicle for which coverage was required." The case law further
established that "hit-and-run" status requires "a hit or touching
between the two vehicles." No such contact occurred in this case. Dehnel
argued, however, that his predicament fell within the statute because
the truck carried an object (the ice) that later struck his vehicle. The
court conceded that Wisconsin case law had not addressed this issue and
other states were divided. In the end, however, the court of appeals was
reluctant to enlarge the statutory interpretation established by the
supreme court in earlier decisions.
Municipal Law
Annexation - Referendums
City of Chippewa Falls v.
Town of Hallie, No. 99-0832 (filed 19 Oct. 1999) (ordered
published 22 Nov. 1999)
Owners of real estate located in the Town of Hallie (the town)
petitioned for direct annexation by the City of Chippewa Falls (the
city) pursuant to section
66.021 of the Wisconsin Statutes. The city in effect accepted the
petition. When the town received notice, opponents circulated a petition
for a referendum on the annexation. The requisite number of qualified
voters living in the area proposed for annexation signed the petition.
The city brought this action for a declaratory judgment to have the
petition for referendum declared invalid because it failed to comply
with sections 66.021(5)
and 8.40(2).
Specifically, the petition for referendum had to be circulated by
persons who lived in the area subject to annexation. The circuit court
granted judgment in favor of the city.
The court of appeals, in a decision authored by Chief Judge Cane,
affirmed. Section
8.40(2) of the Wisconsin Statutes requires that an affidavit of a
"qualified elector" appear at the bottom of each petition circulated.
Under section
66.021(5) a petition for referendum can be signed only by those
residing within the proposed area of annexation. Reconciling the
statutes, the court held that "when sec.
8.40(2) requires that the affiant/circulator reside within the
'jurisdiction or district' in which the petition is circulated, it can
only mean that the affiant/circulator must reside within the proposed
area of annexation."
Public Benefits
State SSI Supplements - Recoupment of Overpayments
Mack v. Wisconsin
Department of Health and Family Services, No. 99-0627 (filed 24
Nov. 1999) (ordered published 16 Dec. 1999)
Wisconsin has opted to complement an eligible individual's federal
SSI (Supplemental Security Income) benefits by paying him or her an
additional sum or a state SSI benefit. Through no fault of her own the
petitioner, a 76-year-old disabled individual, was overpaid $837 in
state SSI benefits. Once the Wisconsin Department of Health and Family
Services realized the error, it notified the petitioner and determined
that, following its written policy, it would recoup these funds by
deducting 10 percent of her future SSI benefits payments until the
overpayment was recovered.
The petitioner objected that DHFS was not authorized to
administratively recoup the overpayments from her SSI benefits. In a
decision authored by Judge Anderson, the court of appeals agreed.
The court found that there is no statutory authority for DHFS to
administratively recover its overpayment from the petitioner's future
benefits payments. It also found that, although an administrative agency
generally possesses a common law right of recoupment to recover
erroneous payments of public funds, DHFS would have to sue her to
exercise its common law right of recoupment. Or, alternatively, it could
administratively reclaim the funds pursuant to a statute or rule but,
because there is no governing statute or rule, DHFS's administrative
benefits repayment deduction was unauthorized.
Real Estate
Transfer Fees - Conveyance from Limited Family Partnership to
Limited Family Liability Company
Wolter v. Wisconsin
Department of Revenue, No. 99-0671 (filed 24 Nov. 1999)
(ordered published 16 Dec. 1999)
Wolter and his children were all partners in Wolter Investment
Company - Limited Partnership. The father was the general partner and
his children were limited partners. The partnership held title to three
parcels of land that it leased to various tenants.
In 1994 the partnership was reorganized as Wolter Investment Company
LLC, a Wisconsin limited liability company under Wis. Stat. chapter
183. In order to give notice of the reorganization, the family
members prepared and recorded in the local register of deeds office a
"Memorandum of Organizational and Operating Agreement." The
reorganization of the partnership into the LLC did not involve payment
of any cash consideration to any person or entity.
Wolter and his children sought to avoid paying a real estate transfer
fee on the conveyance of commercial property from the family partnership
to the newly formed family limited liability company. They challenged
the decision of the Wisconsin Tax Appeals Commission that a direct
transfer of real property from the partnership to the limited liability
company was a conveyance of title for value and that no exemptions
applied to this transaction. In a decision authored by Judge Anderson,
the court of appeals agreed with the commission.
A real estate transfer fee is assessed only if there is a conveyance
or transfer of ownership interests in real property for value and there
are no statutory exemptions or exclusions. The court concluded that the
memorandum described above meets the definition of "conveyance" in section
77.21(1) of the Wisconsin Statutes. It also found that the
conveyance was for value and therefore subject to the assessment of a
transfer fee. Value is present in two ways. First, the family members
received capital accounts in the LLC in exchange for the conveyance.
Secondly, in reorganizing as an LLC and conveying the real property to
the LLC, the members received beneficial ownership rights.
Finally, the court concluded that the conveyance was subject to the
real estate transfer fee because there are no statutory provisions
granting an exemption from that fee in a case like this.
Sexual Predators
Mandatory Reexaminations - Six-month Period - "Likely to
Reoffend"
State v. Marberry,
No. 98-2883 (filed 24 Nov. 1999) (ordered published 16 Dec. 1999)
The court of appeals, in an opinion written by Judge Deininger,
affirmed an order committing the respondent as a sexually violent person
under chapter
980 of the Wisconsin Statutes. The court addressed several issues.
First, it concluded that "the six-month period for reexamination under
section
980.07(1) does not begin to run until the court has conducted a
dispositional hearing and issued an 'initial commitment order' under sec.
980.06(2), Stats." Although the respondent argued that the time
began to run in November 1996, the court disagreed. The November order
was not entered pursuant to a "dispositional hearing" and it did not
specify whether the respondent "was to receive institutional care or be
under supervised release." Neither condition was met until the circuit
court's June 1998 order, and there was no contention that the mandatory
reexamination failed to occur within six months of that order. Finally,
the court of appeals was satisfied that the record contained sufficient
evidence to support the commitment.
Jury Trial - Waiver
State v.
Bernstein, No. 98-2259 (filed 4 Nov. 1999) (ordered published
16 Dec. 1999)
The state initially requested a jury trial on the issue of whether
the respondent should be committed as a sexually violent person under chapter
980. It later withdrew the request and the respondent was committed
following a bench trial. His prime argument on appeal is that the judge
failed to obtain his personal consent to the state's withdrawal of its
jury request.
The court of appeals, in an opinion written by Judge Vergeront,
affirmed. First, a respondent's right to a jury trial under chapter
980 is governed by section
980.05(2), not "the case law construing the constitutional right of
a criminal defendant to a jury trial and sec.
972.02(1), Stats." Section
980.05(2) requires that both the respondent and his or her attorney
must consent. Attorneys, however, usually act on behalf of their clients
in court. The court held that the respondent's "consent to the
withdrawal of the State's request for a jury trial need not be in the
form of a statement made personally by him to the court." The record
established that the respondent's lawyer clearly consented to the
withdrawal at a pretrial conference. On the morning of trial the judge
placed the issue on the record and personally addressed respondent about
the withdrawal of the jury request. The respondent acknowledged that he
had spoken with his lawyer, that no one had threatened him or promised
him anything, and that he was not under the influence of drugs or
alcohol. The record adequately reflected the respondent's consent,
although the appellate court carefully distinguished a situation in
which the respondent had, in the first instance, requested the jury
trial.
Torts
Survival Claims - Statute of Limitations
Merrill v.
Jerrick, No. 99-0787 (filed 23 Nov. 1999) (ordered published 16
Dec. 1999)
On Nov. 23, 1994, Shawn was severely injured in a one-car accident in
which he was a passenger. Shawn died three days later on Nov. 26 at age
16. Acting without legal counsel, Shawn's parents settled their wrongful
death claim in 1995. On Nov. 26, 1997, exactly three years after Shawn's
death, they brought a survival claim against the driver and his insurer.
The trial judge dismissed the complaint, ruling that the statute of
limitations, section
893.54, had expired and that the discovery rule did not apply.
The court of appeals, in an opinion written by Chief Judge Cane,
reversed. Analyzing the discovery rule, the court held that there was
"an issue of material fact concerning when a reasonable person with the
same degree of mental and physical handicap and under the same or
similar circumstances as [Shawn's estate] should have discovered his
injury, its cause, its nature and the defendant's identities." The court
was unpersuaded that the action accrued on the date of the accident or
that the case law treated minors differently (that is, parents are under
no legal duty to file suit within three years). Finally, the court
declined to address the hypothetical issue of whether any statute of
limitations applies to one who is in a coma under these
circumstances.
Zoning
Shoreland Zoning Variance - Wisconsin Fair Housing Act
Sawyer County Zoning Board
v. Wisconsin Department of Workforce Development, No. 99-0707
(filed 23 Nov. 1999) (ordered published 16 Dec. 1999)
The issue in this case was whether the Department of Workforce
Development, in enforcing the Wisconsin Fair Housing Act (WFHA), may
order a zoning board to issue a shoreland zoning variance based upon
characteristics unique to the landowner.
The landowner owns a cabin abutting a creek that flows into a lake.
He and his family use the cabin on summer weekends. Due to various
physical ailments, the landowner requires special oxygen equipment and
is disabled for purposes of the WFHA.
The landowner hired a contractor to build an addition to the cabin.
The addition permits him a greater view of the creek and lake and the
sand bar area where his children play. Its linear design permits him to
keep his lengthy oxygen hose out of the traffic pattern and move about
without the hose getting tangled. After the construction of the addition
was completed, the local zoning administrator issued two citations to
the landowner, one for building without a permit and the other for
violating the minimum setback. The landowner applied to the county
zoning board for an after-the-fact variance. The board rejected the
variance request on the ground that it would be for the convenience of
the owner and would not be due to special conditions unique to the
property. The board ordered the removal of part of the addition so that
it would comply with the setback requirement.
The landowner filed a disability discrimination complaint against the
board under the WFHA, claiming that the board refused to permit him to
make reasonable modifications to the cottage or make a reasonable
accommodation under the zoning ordinance for his cottage. The
administrative law judge ordered the board to grant the variance, which
decision was reversed by the circuit court.
In an opinion authored by Judge Hoover, the court of appeals affirmed
the circuit court. The Department of Workforce Development in essence
requested the appellate court to modify the unnecessary hardship
standard required to obtain a shoreland zoning variance and examine the
personal characteristics of the property owner when the owner suffers
from a disability. Such a modification of the law would require the
court of appeals to overrule supreme court decisions, which it may not
do. The proper standard for granting a shoreland setback zoning variance
is whether the property owner has no feasible use of the property
without the variance, taking into account only the peculiar
characteristics of the land. In this case the property owner failed to
prove that there was no feasible use absent the variance.
The court held that the board's failure to grant the variance did not
constitute discrimination, but rather was the only legal action it could
take given the proof before it. Because the board did not engage in a
discriminatory act, the Department of Workforce Development was without
authority to order the board to grant the variance.
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
