Vol. 71, No. 2, February
1998
Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Arbitration | Attorneys | Attorney
Fees | Civil Procedure
| Contracts | Criminal Law | Criminal
Procedure
| Family Law | Insurance | Motor
Vehicle Law | Torts |
Arbitration
Costs - Pre-verdict Interest
Finkenbinder v. State Farm
Mut. Auto Ins. Co., No. 97-0357 (filed 12 Nov. 1997) (ordered
published 17 Dec. 1997)
The plaintiff arbitrated her claim against her underinsurance
carrier. Following the arbitrator's award of $131,000, she moved the
trial court to award costs, pre-verdict interest on her medical
expenses, and post-award interest on all damages. The trial judge denied
the motions and she appealed.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. First, the court held that section 814.10 of the Wisconsin
Statutes does not contemplate an award of costs in arbitration
proceedings; rather, the statute envisions a "prevailing party" in a
"litigated trial court proceeding." Second, the plaintiff waived any
claim for pre-verdict interest on the stipulated medical expenses by not
raising it before the arbitrator. Finally, her claim for "pre-verdict
interest on all tort damages, liquidated or unliquidated," ran squarely
against binding precedent that only the supreme court could
overturn.
Attorneys
Legal Malpractice - Causation
Seltrecht v. Bremer,
Grischke & Bremer S.C., No. 96-2065 (filed 7 Oct. 1997)
(ordered published 20 Nov. 1997)
The court of appeals, in an opinion written by Judge Fine, framed the
issue in this case as follows: "When a client is represented
sequentially by two lawyers, both of whom were arguably negligent with
respect to the same matter, can the first lawyer's alleged negligence be
a cause of the client's damages if the client would not have sustained
any damage if the second lawyer could have prevented the harm but did
not?" The court held that the answer is "no."
The case is an "imbricated medical/legal malpractice case" involving
a deformed child born in 1969. Consulted in 1987, the first attorney
allegedly advised the plaintiffs that the statute of limitations on the
medical malpractice case had expired. On Oct. 18, 1991, a second
attorney examined the case and filed a medical malpractice suit against
various defendants that was later dismissed for failure to prosecute
because the defendants were not served. This case's complicated
chronology is nicely summarized in six pages by the court. The
complications result because of changes in case law and statutes
governing the statute of limitations between 1969 and October 1991. The
court held that in October 1991 the applicable law required the
commencement of the medical malpractice action by Oct. 19, 1991 (the
date of the boy's 22nd birthday).
The court further concluded that the plaintiff's right to sue the
doctor was not lost until the second lawyer's complaint was dismissed
for lack of prosecution. Accordingly, the first lawyer's alleged
negligence was not, as a matter of law, a cause of the plaintiff's loss
of their cause of action against the doctor. The court also affirmed the
trial judge's decision ordering the plaintiffs to pay the defendants
costs of certified copies of two depositions and a set of medical
records.
Sanctions - Depositions - Instructions Not to Answer - Experts
Burnett v. Alt, Nos. 96-3356 and 96-3588 (filed 25 Nov. 1997)
(ordered published 17 Dec. 1997)
A doctor and his lawyer appealed orders that compelled discovery of
the doctor and imposed sanctions on the lawyer. Specifically, the doctor
was directed to answer questions at a deposition as a nonparty expert
witness. The lawyer was sanctioned under sections 804.12(1) and (2) of
the Wisconsin Statutes. The sanctions stemmed from the attorney's
instruction to the doctor not to answer certain questions at a
deposition. The court of appeals, in an opinion written by Judge Cane,
affirmed.
First, the trial court did not abuse its discretion in imposing
sanctions against the lawyer. The lawyer argued that he was "duty bound"
to protect his client (the doctor) against providing uncompensated
expert testimony to plaintiffs as opposed to transactional testimony.
Conceding that the lawyer's position had merit and acknowledging his
efforts to resolve the matter with plaintiff's counsel before the
deposition, the court observed that the lawyer should have moved for a
protective order under Wis. Stat. section 804.01(3) or sought a
telephonic ruling pursuant to section 804.05(4)(b). The lawyer followed
neither avenue.
Second, the trial court did not abuse its discretion in ordering the
doctor to respond to various questions at the next deposition. To the
extent that the order was ambiguous or invited attempts by plaintiff to
obtain "uncompensated expert testimony," the doctor's lawyer was urged
to use the alternatives of telephone rulings or protective orders.
Attorney Fees
Guardians - Wis. Stat. Section 880.22 - "Just Debts of the Ward"
Community Care Org. of Milwaukee County Inc. v. Evelyn O.,
Nos. 96-2108 & 96-3254 (filed 28 Oct. 1997)
(ordered published 20 Nov. 1997)
The Community Care Organization Inc. was a private company that
contracted with the county to provide elder-abuse monitoring and
prevention services under section 46.90 of the Wisconsin Statutes. Under
the contract, Community Care filed petitions for guardianships and
protective placement against two elderly women. Eventually both women
were placed in protective settings. Over objections by the women's
guardian ad litem, the trial judge ordered the guardianship estates to
pay attorney fees to Community Care under Wis. Stat. section 880.22,
which requires that guardians "pay the just debts of the ward."
The court of appeals, in an opinion written by Judge Fine, reversed.
Community Care argued that it had provided legal services to both women
by "successfully putting them under the protective wings of others." The
argument overlooked the fact that neither woman contracted with
Community Care or approved of its actions. Moreover, Wis. Stat. section
46.90(5m)(c) gives the elderly the right to refuse to accept services.
And under section 880.22 the attorney fees were not the "debts" of the
wards. Under the American rule each party is responsible for its own
attorney fees. Wisconsin recognizes a narrow exception to the American
rule where an insured incurs attorney fees in establishing coverage
under an insurance policy. Judge Fine saw nothing about this case that
warranted a similar finding and suggested that this was a matter best
left to the Legislature.
Temporary Guardians - Breach of Trust - Conflict of Interest -
Frivolous Appeals
Yamat v. Verma
L.B., No. 96-2313 (filed 14 Oct. 1997) (ordered published 20
Nov. 1997)
An attorney appealed the denial of his request for attorney fees in
his role as a temporary guardian. The court of appeals, in an opinion
written by Judge Curley, affirmed the denial but justified the result on
different grounds. The trial judge had authority to award zero
compensation if it found that the attorney had breached his trust with
the ward. The record revealed an apparent conflict of interest involving
a personal relationship between the attorney's "employer" and another
lawyer who represented the ward's son, who had filed the petition
declaring the ward incompetent. Even more egregious, the
guardian/attorney later went to work for the attorney who represented
the ward's son! At no time did the guardian/attorney "acknowledge and
rectify the inherent nonwaivable conflict of interest created by his
employment relationship." Other evidence established that he was also
"derelict in his duties" and engaged in "self-dealing." The court of
appeals closed by remanding the matter to the trial court for the
imposition of costs against the same attorney for filing a frivolous
appeal. Wis. Stat. § 809.25.
Public Officers - School Principals - Wis. Stat. Section 895.46
School Board of
Pardeeville v. Bomber, No. 97-1469 (filed 23 Oct. 1997)
(ordered published 20 Nov. 1997)
A school principal submitted her resignation to the school board and
received a release from her contract to take another job. The former
principal also received her last paycheck. The contract required her to
pay a $500 penalty for an early release, but she paid only $315,
deducting "unused sick leave." Eventually, the school board sued her for
the $185 balance along with two weeks of vacation time the board now
claimed she should not have been paid for. The circuit court granted
summary judgment in favor of the former principal and awarded her legal
fees and costs under section 895.46 of the Wisconsin Statutes, which
provides that the governmental unit must pay reasonable attorney fees
and costs in such actions unless the judge rules that the public officer
or employee was not acting within the scope of her employment when the
"acts" occurred. The school board appealed the award of attorney fees
and costs.
The court of appeals, in an opinion written by Judge Deininger,
reversed. First, this case involved a dispute over money; the principal
was defending her personal right to keep the monies she claimed belonged
to her. No official "acts" by the board or the principal were involved.
In short, the court was unpersuaded that this case involved the
principal's acts committed while carrying out her duties as an officer.
Nor did this case fall under statutory language covering cases where the
governmental unit is absolutely liable for judgment rendered against an
officer. To so hold would mean concluding that the board would have been
absolutely liable for a judgment rendered against the principal. In sum,
the principal was not entitled to costs and attorney fees under section
895.46(1).
Judge Dykman dissented on the ground that the pay dispute could be
traced to "acts" done by the principal while employed by the school
district.
Civil Procedure
Settlements - Distribution Orders - Challenges
Herlache v. Blackhawk
Collision Repair Inc., No. 97-0760 (filed 11 Nov. 1997)
(ordered published 17 Dec. 1997)
An insurance company appealed an order approving a settlement and
distributing the proceeds. The insurer also appealed an order denying
its motion to vacate the distribution order and authorize the creation
of a trust for the minor children. The court of appeals, in an opinion
written by Judge Hoover, affirmed because the insurer failed to appear
at the hearing upon which the distribution was based and did not
demonstrate excusable neglect for the omission (it offered an "office
mix-up" excuse). "While [the insurer] does not lose its right to share
in the recovery by its failure to participate, it does forfeit its right
to object to the application of the settlement proceeds to specific
claims."
Contracts
Motor Vehicle Repair Code - Vehicle Restoration - Damages
Jagodzinski v.
Jessup, No. 97-0787 (filed 25 Nov. 1997) (ordered published 17
Dec. 1997)
The plaintiff had been hired by the defendants to restore their 1957
Chevy. He was supposed to restore part of the car and then turn it over
to a restoring specialist. The plaintiff's bill came to nearly $12,000
which the defendants refused to pay, citing shoddy workmanship that had
led to a higher bill from the restoration specialist. When the plaintiff
sued them for payment, the defendants counterclaimed for damages and
also asserted that the plaintiff had violated the motor vehicle repair
code, entitling them to double damages plus costs and attorney fees. The
judge ruled that the motor vehicle repair code was inapplicable to
restoration projects and awarded judgment to the plaintiff.
The court of appeals, in an opinion written by Judge Myse, reversed.
The court held that restoration work falls within the definition of
"repairs" under the code. "Customers" was broadly defined to encompass
the owners of all motor vehicles, including "well-informed car
collectors." The court also reversed the determination of damages based
upon a factual error made by the judge.
Criminal Law
Bail Jumping - Multiple Violations of Same Bond Arising Out of
Single Episode
State v. Anderson, Nos. 96-0087-CR and 96-0088-CR (filed 8 Oct. 1997)
(ordered published 20 Nov. 1997)
The defendant was on bail pending trial on a substantial battery
charge. He was under the supervision of a single bond. Among
the conditions of his bond was one prohibiting him from consuming
alcohol and another prohibiting contact with his girlfriend, the battery
victim. While the defendant was on bail, the police were called to the
girlfriend's residence. When they arrived, the defendant was there and
it was apparent that he had been drinking. Both the drinking and his
presence at the residence violated bond provisions. As a result, he was
charged and subsequently convicted of two counts of felony bail
jumping.
The court of appeals reversed. In a decision authored by Judge
Snyder, the court agreed with the defendant that, because he was under a
single bond, and the two bail jumping charges were for "an act of
contact and drinking at the same time on the same day and at the same
place," charging him twice for bail jumping was multiplicitous.
Burglary - Arming Oneself While in Burglarized Premises -
"Trigger-locked" Firearm
State v. Norris,
No. 96-2158 (filed 23 Sept. 1997) (ordered published 20 Nov. 1997)
The defendant was convicted of aggravated burglary contrary to Wis.
Stat. section 943.10(2)(b), which makes it a Class B felony to commit a
burglary under the following circumstances: "While unarmed, but arms
himself with a dangerous weapon ... while still in the burglarized
enclosure."
In an opinion authored by Judge Hoover affirming the conviction, the
court of appeals rejected the defendant's argument that the state was
required to prove that he armed himself while in the burglarized
enclosure to facilitate the commission of the burglary. This is
not an element of the offense. The court also rejected the defendant's
contention that, because the gun he armed himself with had a trigger
lock, it could not be considered a "dangerous weapon." The statutory
definition of "dangerous weapon" includes "any firearm." See
Wis. Stat. § 939.22(10). Said the court, case law demonstrates that
a firearm need not be operational to be considered a dangerous weapon.
The gun the defendant armed himself with did not cease to be a dangerous
weapon simply because it had a trigger lock. The court also pointed out
that "a gun with a trigger lock remains a dangerous weapon because of
its appearance and its potential use as a bludgeoning instrument."
Controlled Substances - Conspiracy to Delivery Drugs
State v.
Cavallari, No. 96-3391-CR (filed 1 Oct. 1997) (ordered
published 20 Nov. 1997)
The defendant was convicted of conspiracy to deliver a controlled
substance under Wis. Stat. section 161.41(1x) (a statute since
renumbered to section 961.41(1x) without substantive change). On appeal
he argued that the evidence introduced at trial was insufficient to
prove a conspiracy to deliver controlled substances because the evidence
established nothing more than a buy-sell agreement between himself and
another. In State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264
(1995), the supreme court addressed the issue of whether an agreement
between a buyer and a seller for delivery of a small amount of a
controlled substance for personal use by the buyer constituted a
conspiracy to deliver a controlled substance. The court concluded that
it did not.
Although Smith definitively stated when a buyer-seller relationship
is not a conspiracy, it did not expressly identify when such a
relationship might ripen into, or constitute, a conspiracy. In this case
the court of appeals concluded that, in order to establish a conspiracy
for purposes of section 161.41(1x), the state must present evidence that
an agreement existed between the seller and the buyer that the buyer
will deliver at least some of the controlled substances to a third
party.
Escape from Custody - Failure of Person Jailed for Failing to Pay
Forfeiture to Return from Work Release
State v. Smith,
No. 97-0266-CR, and State v.
Dybdal, No. 97-1038-CR (filed 29 Oct. 1997) (ordered published
20 Nov. 1997)
The defendants were placed in the county jail after failing to pay a
forfeiture following their convictions for noncriminal municipal
violations. While jailed, they were granted Huber work release
privileges. Neither returned to the county jail after being temporarily
released for work. They both were convicted of escape and the court of
appeals affirmed.
In a decision authored by Judge Brown, the appellate court concluded
that the Legislature meant to include those persons incarcerated due to
nonpayment of a forfeiture as being subject to a misdemeanor escape
charge if they abscond from work release.
Sexual Assault - Constitutionality of Wis. Stat. Section
940.225(2)(c) - Sexual Assault of a Person Suffering from Mental Illness
or Deficiency
State v. Smith,
No. 96-2961-CR (filed 6 Nov. 1997)(ordered published 17 Dec. 1997)
The defendant was convicted of violating Wis. Stat. section
940.225(2)(c), which prohibits "sexual contact or sexual intercourse
with a person who suffers from a mental illness or deficiency which
renders that person temporarily or permanently incapable of appraising
the person's conduct, and the defendant knows of such condition." The
circuit court dismissed the case after concluding that the statute is
unconstitutionally vague.
The court of appeals, in a decision authored by Judge Roggensack,
reversed. It concluded that the statute provides fair notice of the
prohibited conduct and also provides an objective standard for
enforcement of violations.
To convict a defendant under section 940.225(2)(c), the state must
prove all of the following: 1) that the defendant had sexual contact or
sexual intercourse with the victim; 2) that the victim suffered from a
mental illness or deficiency; 3) that the mental illness or deficiency
rendered the victim temporarily or permanently incapable of appraising
his or her own conduct; and 4) that the defendant knew that the victim
had a mental illness or deficiency that rendered the victim temporarily
or permanently incapable of appraising his or her own conduct.
In this case the defendant did not assert that he had a First
Amendment right to have sexual contact or sexual intercourse with the
victim. Therefore, he could not make a challenge based on hypothetical
facts. Based on the facts of his own case, the defendant contended that
the statute is unconstitutionally vague because the words "incapable"
and "appraising" did not give him fair notice of what type of conduct is
proscribed.
The appellate court rejected the defendant's position for three
reasons. First, the defendant could not be found guilty absent proof of
his knowledge that the victim's mental illness or deficiency rendered
the victim temporarily or permanently incapable of evaluating the
proposed sexual acts. Secondly, the commonly used definitions of
"incapable" and "appraising" are not unconstitutionally vague. And
third, when read in context, the statute evinces a clear legislative
intention to protect those vulnerable citizens who may lack the
capacity, temporarily or permanently, to protect themselves and to
thereby put the defendant on notice to consider his own conduct
differently than he otherwise may have done.
Because the statute provides fair notice of the prohibited conduct
and provides an objective standard for enforcement of violations, the
court concluded that the defendant did not meet his burden of proving
that it is unconstitutionally vague beyond a reasonable doubt.
Accordingly, it reversed the order of the circuit court and remanded for
further proceedings.
Sexual Exploitation of Children - Constitutionality of Wis. Stat.
Section 948.05(1)(c)
State v. Zarnke,
No. 97-1664-CR (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)
The defendant was charged under Wis. Stat. section 948.05 with
capturing off the Internet sexually explicit images of young boys and
then distributing copies of the pictures to others. The statute under
which he was prosecuted provides that one commits a Class C felony if,
with knowledge of the character and content of the sexually explicit
conduct involving the child, he or she "produces, performs in, profits
from, promotes, imports into the state, reproduces, advertises, sells,
distributes or possesses with intent to sell or distribute, any
undeveloped film, photographic negative, photograph, motion picture,
videotape, sound recording or other reproduction of a child engaging in
sexually explicit conduct." The statute goes on to provide that "it is
an affirmative defense to prosecution for violation of this section if
the defendant had reasonable cause to believe that the child had
attained the age of l8 years, and the child exhibited to the defendant,
or the defendant's agent or client, a draft card, driver's license,
birth certificate or other official or apparently official document
purporting to establish that the child had attained the age of l8 years.
A defendant who raises this affirmative defense has the burden of
proving this defense by a preponderance of the evidence."
The parties to this litigation agreed that controlling precedent from
the U.S. Supreme Court requires the state to prove that the defendant
knew the age of the child involved as an element of the offense. The
issue before the court of appeals was whether the Wisconsin statute
impermissibly relieves the state of proving this element by providing
ignorance of age as an affirmative defense.
In a decision authored by Judge Hoover, the court concluded that the
Legislature did not intend the affirmative defense quoted above to apply
to those violations of the statute that do not concern face-to-face
involvement with the child. The court agreed with the state that the
statute can be saved and thus applied to the defendant by reading into
it the requirement that the state prove knowledge of the minority of the
persons depicted in the photographs as an element of the offense of
distributing pictures of children engaged in sexually explicit conduct.
In so holding, the court concluded that the Legislature did not intend
to relieve the state of the burden of proving knowledge of age where the
illegal conduct under section 948.05(1)(c) occurs outside of the child's
presence.
Criminal Procedure
Sentencing Following Revocation of Probation - Relevant
Information
State v.
Schordie, No. 97-0071-CR (filed 15 Oct. 1997) (ordered
published 20 Nov. 1997)
The defendant was convicted of felony bail jumping. The circuit court
withheld sentencing and placed him on probation for five years. The
defendant subsequently violated the terms of his probation and,
following revocation of probation, the trial court sentenced him to the
maximum term for the felony bail jumping conviction.
On appeal the defendant argued that it was improper for the trial
court to consider at sentencing the acts he had committed that resulted
in the probation revocation. In an opinion authored by Judge Brown, the
court of appeals concluded that a trial court may consider all relevant
information when imposing sentence following revocation of probation,
including the acts resulting in that revocation.
Juries - Strikes for Cause - New Trial
State v. Ferron,
No. 96-3425-CR (filed 21 Oct. 1997) (ordered published 20 Nov. 1997)
The court of appeals, in an opinion written by Judge Cane, reversed
the defendant's conviction for burglary and remanded the matter for a
new trial. The court held that the trial judge erroneously refused to
strike a juror for cause, thereby forcing the defendant to use a
peremptory strike to excuse the juror, which "arbitrarily deprived" him
of his "right to exercise his full complement of peremptory challenges."
The juror in question indicated that she might not be able to follow the
presumption of innocence instructions if the defendant declined to
testify on his own behalf. The court of appeals concluded that the juror
had expressed a clear bias against defendants who chose not to testify
and never indicated that he could, or would, follow the jury
instructions to the contrary.
The defense did not deny that the jury actually impaneled was fair
and impartial. But applying State v.
Ramos (1997), the court held that the defendant was entitled to
his full complement of peremptory challenges. The record revealed that
he used his first peremptory strike to remove the offending juror.
Sentencing - Imposition of Sentence Consecutive to Jail Time
Defendant Serving as a Condition of Probation
State v. Maron,
No. 97-0790-CR (filed 23 Oct. 1997) (ordered published 20 Nov. 1997)
The trial court imposed a sentence of 75 days in jail with
Huber privileges to be served consecutive to the jail time the
defendant already was serving as a condition of probation in another
case. On appeal the defendant contended that the trial court lacked the
authority to impose a sentence consecutive to jail time already being
served as a condition of probation.
The court of appeals, in a decision authored by Judge Vergeront,
reversed and remanded. The court concluded that Wis. Stat. section
973.15(2) does not give the trial judge authority to order that the
sentence be served consecutive to jail time already being served as a
condition of probation.
Search Warrants - Searches of Vehicles - Post-conviction Discovery
Guidelines
State v. O'Brien,
No. 96-3028-CR (filed 22 Oct. 1997) (ordered published 20 Nov. 1997)
The court of appeals, in a decision authored by Judge Anderson,
affirmed the defendant's sexual assault convictions and an order denying
his motion for a Machner hearing. The opinion addresses several
important issues of statewide importance.
First, the court held that a search warrant for a "premises" extended
to the search of a truck, a barn and an outbuilding. "[T]he warrant was
actually to search O'Brien's premises and person; he was not a
third-party visitor to the home who happened to be caught up in the
search. Also, O'Brien's truck was parked on the premises, not on a
public street."
Second, the defendant filed a motion for post-conviction discovery,
seeking independent testing of certain exhibits. To provide necessary
guidance on this issue, the court set forth the following "guidelines"
governing post-conviction discovery requests. The defendant must: "1)
provide supporting affidavits with the motion which describe the
material sought to be discovered and explain why the material was not
supplied or discovered at or before trial; 2) establish that alternative
means or evidence is not already available such that the post-conviction
discovery is necessary to refute an element in the case; 3) describe
what results the party hopes to obtain from discovery and explain how
those results are relevant and material to one of the issues in the
case; and 4) after meeting the first three criteria, the party must then
convince the trial court that the anticipated results would not only be
relevant, but that the results would also create a reasonable
probability of a different outcome." On this record, the defendant was
not entitled to post- conviction discovery.
Parole - Revocation of Parole - Credit for "Street Time"
State ex rel. Ludtke v.
Department of Corrections, No. 96-1745 (filed 15 Oct. 1997)
(ordered published 17 Dec. 1997)
The defendant was released on parole following service of part of his
sentence in prison. He successfully remained on parole for more than
three years, but his parole was subsequently revoked and he was
reincarcerated. The Department of Corrections thereafter advised the
defendant with regard to the amount of time remaining on his sentence,
giving him credit for some, but not all, of the time he had spent on
parole ("street time").
The defendant filed a petition seeking a writ of habeas corpus
discharging him from custody claiming that he had been unlawfully denied
credit for time already served on parole. His argument was that he was
entitled to credit for all of his street time and, had he been given
such credit, he would be entitled to immediate discharge.
In a decision authored by Judge Nettesheim, the court of appeals
concluded that the resolution of the issue presented by the defendant is
governed by Wis. Stat. section 302.11(7). This statute provides that, if
parole is revoked, the parolee may be returned to prison for a period up
to the remainder of the sentence. "The remainder of the sentence is the
entire sentence, less time served in custody prior to parole."
Applying this statute, the court concluded that the defendant was not
entitled, as a matter of law, to sentence credit for his full street
time while on parole. With reference to credit that was actually awarded
by the department, the court held that the defendant was properly
credited with all custody confinement to which he was entitled and that
he was properly credited with some of his street time that the
department deemed appropriate pursuant to section 302.11 (7) (a).
Finally, the court concluded that the defendant's right to protection
from double jeopardy was not violated when he was denied credit for the
entire time he served on parole prior to revocation.
Jury Selection - Batson - Strikes Based on Gender and Age
State v. King,
No. 97-1509-CR (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)
Purposeful racial and gender discrimination in selecting the jury
violates a litigant's right to equal protection because it denies the
protection that a trial by jury is intended to secure. See Batson v.
Kentucky, 476 U.S. 79 (l986). See also J.E.B. v.
Alabama, 511 U.S. 127 (1994) (where the Court held that the
Equal Protection Clause forbids intentional discrimination on the basis
of gender just as it prohibits discrimination on the basis of race).
In this case the defendant argued that the prosecutor violated his
equal protection rights when she purposely struck older females from the
jury. This was a sexual assault prosecution and the district attorney
indicated that her experience in trying sexual assault cases was that
older females are very judgmental of female sexual assault victims. The
thrust of the defendant's argument was that the prosecutor was
prohibited from using gender as a basis upon which to strike the jurors
in question. The state acknowledged that gender was a factor and that it
was not a valid reason for striking a juror. However, it argued that age
was a valid reason and, since there were two reasons for the strikes,
the appellate court should adopt the "dual motivation test" to determine
whether to allow these strikes. [In footnote the court noted that the
state had cited a number of federal decisions holding that removing a
juror because of age is not a violation of the Equal Protection Clause.
The appellate court assumed without deciding that age is a permissible
reason.]
Under "dual motivation" analysis, the party who exercised the strike
must prove that the strike would have been exercised regardless of the
discriminatory motivation. Under this analysis, a prohibited factor,
such as gender, would not automatically result in an equal protection
violation. If there were other permissible motivating factors, the
prohibited factor must have been the decisive one in order for a
constitutional violation to occur. In this case the state contended that
age - not gender - was the decisive factor.
The court of appeals noted that it had previously rejected the
state's argument, although at the time it was not denominated "dual
motivation." See State v. Jogodinsky, 209 Wis. 2d 577, 563
N.W.2d 188 (Ct. App. 1997). It concluded in this case that the circuit
court clearly erred when it concluded that the prosecutor had not
purposely engaged in gender discrimination by striking the jurors in
question because gender was not the sole factor. Based on the
prosecutor's statement that she struck these two jurors because they
were older females, the only correct conclusion on this record, said the
court, is that the prosecutor purposely used gender as a basis for
striking these jurors. Following its holding in Jagodinsky, the
court concluded that this constituted a violation of the Equal
Protection Clause and the only remedy is reversal of the conviction and
remand for a new trial.
Jury Trial - Simultaneous Jury Trials of Two Defendants
State v. Avery,
No. 96-2873-CR (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)
Section 971.12(3) of the Wisconsin Statutes ("Relief from Prejudicial
Joinder") provides that the district attorney shall advise the court
prior to trial if he or she intends to use the statement of a
codefendant that implicates another defendant in the crime charged.
Thereupon, the judge shall grant a severance as to any such
defendant.
The situation contemplated by the statute arose in this case and,
instead of conducting two completely separate jury trials, the court
proceeded to try the two defendants simultaneously but before two
juries. The defendant's attorney did not object to this procedure and,
on appeal, the defendant claimed that counsel was ineffective for
failing to make that objection, contending that Wisconsin law does not
allow for simultaneous trials of two defendants before two juries.
The court of appeals, in a decision authored by Judge Schudson,
affirmed. It concluded that Wisconsin law does allow for the
simultaneous trials of two defendants before two juries and that, in
this case, the trial court carefully employed dual jury procedures that
protected the defendant's rights. Among other things there was separate
jury selection, separate opening and closing statements, and separate
jury instructions. The jury of one defendant was excluded from the court
during the presentation of evidence inadmissible as to that defendant.
Thus, the evidence received by the defendant's jury at the joint trial
was exactly what the evidence would have been had he been tried alone.
Therefore, the dual jury procedure in effect provided the severance of
defendants contemplated by the statute cited above.
Probation - Expiration of Probation Term - Unfulfilled Conditions of
Probation
State v.
Stefanovic, No. 97-1791-CR (filed 26 Nov. 1997) (ordered
published 17 Dec. 1997)
The defendant was convicted of carrying a concealed weapon. The court
withheld sentence and placed her on probation for one year. As a
condition of probation, the court ordered the defendant to serve 30 days
in the county jail.
The defendant filed a notice of intent to pursue post-conviction
relief and a motion for release pending appeal. The trial court granted
the request for release pending appeal. However, the court did not stay
the probation and thus the defendant remained on probation during the
course of her appeal.
More than one year later, the defendant's conviction was affirmed by
the court of appeals. By this time, however, the defendant had already
served her one-year term of probation and the Department of Corrections
had issued its certificate discharging her from probation. Following
remittitur, the trial court scheduled a hearing to determine whether it
could order the defendant to serve the 30-day jail term, which had been
imposed as a condition of probation, even though the period of probation
had expired. The court concluded that it had not lost jurisdiction over
the defendant and thus ordered her to serve the jail term.
The court of appeals, in a decision authored by Judge Nettesheim,
reversed. It concluded that the trial court had lost jurisdiction over
this case when the period of probation expired. In making this ruling,
the appellate court candidly acknowledged that the trial court's loss of
jurisdiction frustrated the court's sentencing scheme. However, "it is
axiomatic that before any court can act, it must have jurisdiction to do
so."
In the course of its discussion the court noted that Wis. Stat.
section 973.09(3)(a) allows a trial court to extend probation for cause
if such action is taken prior to the expiration of the original
probation period. However, no such extension was sought in this case by
the state, the Department of Corrections, or the trial court.
Probation Revocation - Certiorari Review - Habeas Corpus Not
Available
State ex rel. Reddin v.
Galster, No. 97-0111 (filed 20 Nov. 1997) (ordered published 17
Dec. 1997)
The defendant was imprisoned following revocation of probation. He
challenged that revocation by seeking a writ of habeas corpus, claiming
that the proceedings to revoke him were defective. The circuit court
denied the habeas petition.
The court of appeals, in a decision authored by Judge Deininger,
affirmed because habeas corpus proceedings are not available for the
purpose of challenging an administrative order revoking probation.
Review of probation and parole revocation decisions is by certiorari
directed to the court of conviction. The court further concluded that
even if it were to construe the defendant's petition as one for
certiorari, it would still affirm the trial court's dismissal order. The
petition was not filed for more than one year after probation was
ordered revoked and was thus barred by laches. See State ex rel. Enk
v. Mentkowski, 76 Wis. 2d 565, 252 N.W.2d 28 (1977) (certiorari
proceedings not commenced within six months of the action sought to be
reviewed are barred by laches).
In this decision the court noted that it has previously intimated
that a writ of habeas corpus may be available to raise a claim of
ineffective assistance of counsel during probation revocation
proceedings. See State v. Ramey, 121 Wis. 2d 177, 359 N.W.2d
402 (Ct. App. 1984). The Ramey court held that a claim of ineffective
assistance of counsel during probation revocation proceedings could not
be addressed on certiorari review, because the scope of that review is
solely upon the actions and determinations of the administrative
decisionmaker. In this case the defendant raised no claim regarding the
effectiveness of his representation during the probation revocation
proceedings. He challenged the administrative decision to revoke his
probation on procedural and substantive grounds. A circuit court review
of those issues was available by certiorari, an adequate remedy, which
thus precluded the issuance of a writ of habeas corpus.
Family Law
Divorce - Child Support - Nonmodifiable Stipulations - Public
Policy
Krieman v.
Goldberg, No. 96-3489 (filed 8 Oct. 1997) (ordered published 20
Nov. 1997)
The parties were married in 1976 and divorced in 1987. Custody of
their four children went to their mother. Various post-divorce issues
have been the subject of litigation with much of it pertaining to the
level of child support the father is required to pay. In 1995 the trial
court signed an order based upon the parties' stipulation which, among
other things, provided for a specific amount of child support and
further provided that, regardless of the father's future income, the
child support level shall remain the same and that "neither party shall
under any circumstances have the right to petition the court for a
modification of the child support provided for [in the
stipulation]."
The father subsequently filed a motion requesting modification of his
child support obligation and, on appeal, one of the issues was whether
an agreement with language that absolutely prohibits the modification of
child support under any circumstances offends public policy. In a
decision authored by Judge Snyder, the court concluded that the absolute
stipulation agreement, with no time limitation or opportunity for
review, is against public policy and that the father is therefore not
estopped by the stipulation from seeking a modification of his support
obligations due to a material change in circumstances.
In reaching this conclusion the court relied on the decision in
Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App.
1990). Ondrasek stands for the proposition that the child's
best interests are served through a policy that does not preclude a
payee from seeking a modification in child support because of a change
of circumstances, even though the parties had stipulated to a
nonmodifiable amount of support. Pursuant to Ondrasek, the
mother in this case retains the ability, in spite of the stipulation
agreement, to come back to the court and request a modification of the
support agreement if there is a change in circumstances and the
children's best interests require a modification of the payment.
However, to prohibit the payor parent from exercising the same right
ignores the reality that the supporting parent's financial circumstances
may change dramatically for reasons beyond the payor's control.
A stipulation that purports to make child support nonmodifiable and
is unlimited as to time could impoverish the payor parent and place him
or her in financial jeopardy. "A court must consider the vagaries of
life and the reality that a specific circumstance may require an
adjustment of an agreed-upon level of support, even where the parties
have entered into a stipulation agreement. To hold otherwise and subject
a payor parent to an unreviewable stipulation for child support could
jeopardize a payor parent's financial future, may have detrimental
effects on the parent-child relationship and in this way would
ultimately not serve the best interests of the child."
The court distinguished the decision in Honore v. Honore,
149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989), where it considered the
question of whether a party to a divorce may stipulate to maintaining a
certain level of child support notwithstanding a subsequent reduction in
the parties' income. The parties' agreement in that case stated that the
payor father had agreed to maintain a specific level of child support
monthly, notwithstanding a reduction in his income or other financial
factors "at least until the youngest child ... is in first grade." The
Honore decision concluded that such a stipulation was not
contrary to public policy. In this case the stipulation differed from
that in Honore in one significant respect. The stipulation in
Honore included a point in time at which the stipulated payment
could be reviewed and adjusted based upon a change of circumstances.
Thus, the payor spouse in that case was bound to a certain level of
payment for a time certain, at which point he could request a
reevaluation. In the instant case, however, the agreement as written
contained no such provision and thus was contrary to public policy.
Insurance
Pollution Exclusion - Paint Chips
Peace v. Northwestern
National Ins. Co., No. 96-0328 (filed 18 Nov. 1997) (ordered
published 17 Dec. 1997)
A young boy allegedly suffered injuries from ingesting lead-based
paint. The parties appealed an order granting summary judgment to an
insurer based on the conclusion that the insurer had no duty to defend
or indemnify the homeowner because of the pollution exclusion clause.
Originally, the court of appeals affirmed the judgment based on a
case-law distinction between lead from "intact accessible painted
surfaces" and lead from "paint chips, paint flakes and dust." The court
of appeals revisited this case in light of the supreme court's decision
in Donaldson v. Urban Land Interests
Inc., 211 Wis. 2d 224 (1997).
The court of appeals, in an opinion written by Judge Schudson, now
reversed the trial court. "Contaminants" fall within a policy's
pollution exclusion clause. Donaldson "obliterated" the
distinction between lead from paint on intact surfaces, which was not
deemed to be a "contaminant," and lead from paint chips, flakes or dust,
which was a contaminant. The court held that "lead in paint chips,
flakes, or dust is not a contaminant" and thus the pollution exclusion
clause does not apply.
Judge Fine dissented, disagreeing with the majority's interpretation
of Donaldson ("this case does not involve the failure of a
mechanism to either regulate or flush a byproduct of life before that
substance reaches dangerous levels").
Homeowner's Coverage - Motor Vehicle Exclusion - "Using or
Operating"
Poppy v.
Muehlenberg, No. 97-0822-FT (filed 4 Nov. 1997) (ordered
published 17 Dec. 1997)
The plaintiff, a child, broke her arm when the school bus on which
she was riding lurched to a sudden stop. The abrupt stop occurred
because a 14-year-old girl, Maggie, "stepped" on the driver's foot while
it was on the brake pedal. The plaintiff sued the bus driver, the bus
company and its insurer, who in turn filed a third-party complaint
against Maggie, her parents and their homeowner's insurer. The
homeowner's carrier ("the insurer") moved for summary judgment citing
the policy exclusion when an insured is "using" or "operating" any type
of motor vehicle. The trial judge dismissed the insurer.
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed. The court held that "a person may be using or operating a
vehicle even if they do not exercise complete control over the vehicle."
Maggie did not have "complete control" over the bus, but her "horseplay"
caused the lurching stop. Thus, taking control of a vehicle, even if
"only for an instant," brings the insured within the exclusion.
Motor Vehicle Law
OWI - Collateral Attack on Prior Convictions Used to Enhance
Penalty
State v. Foust,
No. 97-0499-CR (filed 30 Oct. 1997) (ordered published 20 Nov. 1997)
Wis. Stat. section 346.65(2) is a penalty statute that uses prior OWI
convictions to enhance the punishment for subsequent offenses. The issue
in this case was whether those prior convictions can be collaterally
attacked in the present prosecution.
In a decision authored by Judge Deininger, the court of appeals held
that convictions used to enhance punishment are subject to collateral
attack and, when it is established that a prior conviction was based
upon a constitutionally defective plea, that conviction cannot be used
in applying section 346.65(2). Though not the issue in this case, the
court intimated that the same result would pertain when the state uses
prior convictions to support a claim that the defendant is subject to
the lower prohibited alcohol concentration of 0.08 applicable to certain
repeat offenders.
Implied Consent Law - Recanting Refusal to Submit to Testing
State v. Rydeski, No.
97-0169-CR (filed 2 Oct. 1997) (ordered published 20 Nov. 1997)
This case concerns the issue of whether a person arrested for OWI who
refuses to submit to chemical testing may thereafter recant that refusal
and be entitled to take the test. In a decision authored by Judge
Dykman, the court of appeals answered in the negative.
Based upon State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828
(1980) and the language of the implied consent statute, the court
concluded that once a person has been properly informed of the implied
consent law, that person must promptly submit or refuse to submit to the
requested test, and that upon a refusal, the officer may "immediately"
gain possession of the accused's license and fill out the Notice of
Intent to Revoke form. A person's refusal is thus conclusive and is not
dependent upon such factors as whether the accused recants within a
"reasonable time," whether the recantation comes within the three-hour
time period provided in Wis. Stat. section 885.235(1), or whether
administering the test at a later time would inconvenience the officer
or result in a loss of the test's evidentiary value.
Torts
Punitive Damages - Insurance Coverage
Davis v. Allied Processors
Inc., No. 97-0478 (filed 21 Oct. 1997) (ordered published 20
Nov. 1997)
A jury awarded the plaintiff $585,000 in compensatory damages and
assessed $500,000 in punitive damages against defendant Allied
Processors Inc. The jury also found that the plaintiff was 10 percent
and Allied was 90 percent at fault. An insurer, Western National Mutual
Ins. Co., had issued Allied two liability policies. One provided primary
coverage in the amount of $500,000 and a second provided excess coverage
of $2,000,000. The primary policy was silent on the issue of punitive
damages; thus, as mandated by the case law, it covered both compensatory
and punitive damages. The excess policy expressly excluded punitive
damages. The trial judge ruled that the punitive damages could be taken
from the primary policy and the compensatories paid through the excess
policy. The insurer appealed.
The court of appeals, in an opinion written by Judge Nolan, reversed.
Addressing a novel issue, the court concluded that the trial judge had,
in effect, rewritten the agreement between the insurer and the insured.
The contract language was not ambiguous. The parties had clearly
bargained so that primary coverage should be exhausted by compensatory,
not punitive, damages.
Injured Employees - Worker's Compensation - Recovery of Lost Premium
Dividends - Recovery of Higher Payments
Vogel v. Liberty Mut. Ins.
Co., No. 96-2145 (filed 28 Oct. 1997) (ordered published 20
Nov. 1997)
An employee was injured during the course of her employment for Tank
Transport. Tank's worker's compensation carrier paid her about $15,000
in lost wages and medical expenses. By the terms of the worker's
compensation policy, Tank lost nearly $20,000 in premium dividends and
was subjected to an "experience modifier" that increased its annual
premiums by about $3,700. Tank sued the tortfeasor, his employer and the
employer's insurer seeking recovery of its increased insurance expenses.
The trial judge granted summary judgment to the defendants on the
grounds that public policy and section 102.29 of the Wisconsin Statutes
foreclosed such claims.
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed. Focusing on the public policy considerations, the court agreed
that such claims open the door "to a field with no sensible stopping
point."
Judge Fine dissented, taking the position that public policy and
precedent supported the claim.
Statute of Limitations - Date of Injury
Elfers v. St. Paul Fire
& Marine Ins. Co., No. 96-3516 (filed 28 Oct. 1997)
(ordered published 20 Nov. 1997)
In 1985 the plaintiff, then a four-year-old child, fractured her arm.
The defendant physicians failed, however, to diagnose a dislocated
elbow. The dislocation was first diagnosed in 1989 in the course of
other treatment; at this point the plaintiff suffered no pain, loss of
motion, and so on. In 1993 she began to suffer symptoms linked to the
dislocation. Plaintiff's current physician believes that these symptoms
would not have occurred had the dislocation been identified and properly
treated in 1985. In 1996 the plaintiff filed this medical malpractice
lawsuit against the physicians who treated her in 1985. On summary
judgment the circuit court found that the injury occurred in 1985 and
the statute of limitations expired in 1988. The complaint was thus
dismissed.
The court of appeals, in an opinion written by Judge Myse, reversed.
Applying Meracle v. Children's Serv. Soc'y (1989) the court
determined that there was a disputed issue of fact over the date of the
injury. More precisely, "[t]he Meracle case demonstrates that
it is essential to know when it became reasonably certain that
[the plaintiff] would suffer compensable damages as a result of the
negligent act." The record in this case did not reveal the date with
reasonable certainty; therefore, the issue was one of fact for the jury.
The court cautioned that it disagreed with plaintiff's "apparent
contention that an asymptomatic dislocated elbow is not an injury." The
case was remanded to determine whether the dislocation could have been
benign for a lifetime or whether the dislocation was reasonably certain
to result in future disabilities (in which case she suffered the
"injury" in 1985).
Negligence - Storeowners - Duty to Protect Patrons
Beyak v. North Central
Food Systems Inc., No. 97-1221-FT (filed 4 Nov. 1997) (ordered
published 17 Dec. 1997)
Beyak was injured in a fracas that occurred on and near a Hardee's
restaurant he was patronizing. He alleged that Hardee's had breached its
duty to protect him from negligent or intentional acts of third persons.
The circuit court granted summary judgment to Hardee's because Beyak had
"voluntarily" injected himself into the fight, thereby eliminating any
duty on Hardee's behalf.
The court of appeals, in an opinion written by Judge Hoover,
reversed. Starting from the premise that summary judgment is "rarely
appropriate in negligence cases," the record disclosed a triable issue
of fact. Specifically, "a reasonable person could conclude that the
security guard breached the duty of ordinary care to patrons by telling
fighting parties to take their argument outside and by apparently
disappearing for twenty to twenty-five minutes."
Escaping Inmates - Public Officer Immunity - Public Policy
Ottinger v.
Pinel, No. 96-3403 (filed 26 Nov. 1997) (ordered published 17
Dec. 1997)
Bruce Ottinger was seriously injured when he was struck by a
state-owned van driven by an escaping prisoner. Several hours before the
accident, an off-duty guard observed the prisoner at a local mall, in
violation of the prisoner's work release requirements. The guard called
the corrections facility, which advised him that authorities would
confront the prisoner when he returned from work release. The prisoner
later returned to the facility, the guards confronted him with the
earlier violation, and the prisoner stole the van and eventually crashed
into Ottinger. Ottinger's guardian and his mother sued the guards for
negligence. The circuit court granted summary judgment to the
guards.
The court of appeals, in an opinion written by Judge Anderson,
affirmed. First, the guards were entitled to public officer immunity.
Their duty to prevent escapes involves discretionary decision-making;
thus, the guards' actions did not constitute negligently executed
ministerial duties. Ottinger also argued that the "known and present
danger" exception applied to this case. However, the record failed to
reveal that the guards were on a "heightened state of alert" based on
the prisoner's work release violation. Finally, the court rejected the
argument that in this case public policy supported liability because the
state had created "a dangerous situation" or rendered its citizens more
vulnerable to danger. Although the guards had a duty to apprehend
inmates, their broad discretionary authority to manage the facility
invested them with broad discretion. The court was unwilling to assume
that the state has a "duty to protect the general public from injury
inflicted by escaping inmates."
This column summarizes all decisions
of the Court of Appeals. 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
