Sexual Predator Law
"Substantially Probable" - Dangerousness - Vagueness - Standard of
Review
State v. Curiel, No.
97-1337 (filed 2 July 1999)
In 1989 Curiel was convicted of second degree sexual assault. Before
his release from prison, the State commenced this civil commitment
alleging that Curiel was a sexually violent person under chapter
980 of the Wisconsin Statutes. At his commitment trial, the only
disputed issue concerned whether Curiel would engage in future acts of
sexual violence. Two experts for the state said he would; the sole
defense expert said he would not. The circuit court found that the state
met its burden of proof and ordered Curiel committed. The court of
appeals affirmed.
The supreme court, in a decision written by Justice Steinmetz,
affirmed but disagreed with the court of appeal's analysis of the term
"substantial probability" as it related to Curiel's future
dangerousness. First, the supreme court defined the term "substantial
probability" (or "substantially probable") as used in the statute.
Relying on dictionary definitions, the court determined that the term
was unambiguous and means "that the state [must] prove beyond a
reasonable doubt that the person subject to the commitment proceedings
is dangerous because his or her mental disorder makes it 'much more
likely than not' that the person will engage in future acts of sexual
violence." The term does not mean, as Curiel contended, that future
violence is "extremely likely."
Second, the supreme court also rejected Curiel's argument that the
"much more likely than not" standard employed in chapter 980 violated
equal protection because it conflicted with the supposedly stiffer
commitment provisions under chapter
51 of the Wisconsin Statutes. Both chapter 980 and chapter 51 employ
the same "much more likely than not standard"; in short, they do not
differ in any material way.
Third, the standard was not void for vagueness. The "much more likely
than not" measure provides "proper standards of adjudication" and "is
not so obscure that men [sic] of common intelligence must necessarily
guess at its meaning and differ as to its applicability."
Fourth, the evidence supported the commitment order. In reviewing the
evidence, the supreme court applied the standard of review applicable to
criminal proceedings, not civil trials. Defects in the expert testimony
and inconsistencies in the evidence went to the weight of the
evidence.
Justice Prosser did not participate in this case.
"Substantially Probable" - Dangerousness - Sufficiency of Evidence -
Expert Testimony
State v. Kienitz, No.
97-1460 (filed 2 July 1999)
Kienitz was ordered committed as a sexually violent person. The court
of appeals affirmed. Before the supreme court, Kienitz posed a series of
challenges most of which were disposed of by the supreme court's
decision in a companion case, State
v. Curiel, No. 97-1337 (filed 2 July 1999), digested above.
Affirming the lower court's decision, Justice Wilcox wrote for the
supreme court and addressed two additional issues not disposed of by
Curiel. First, Kienitz alleged that the evidence was insufficient.
Applying the criminal standard of appellate review, the supreme court
found "that the evidence was more than sufficient to establish beyond a
reasonable doubt that it was 'much more likely than not' that Kienitz
would engage in future acts of sexual violence." Kienitz's long record,
his pattern of reoffending, and his denial of need for treatment
supported the finding.
Second, Kienitz raised a variety of arguments regarding the
sufficiency and type of expert testimony that must support a finding of
dangerousness. Since expert testimony had been received, the supreme
court declined to address the "broader question of whether expert
testimony is required as a matter of law." Under Wisconsin's standards
for admitting expert testimony, inconsistencies among experts raise
credibility questions for the trier of fact. Moreover, the trial court
can consider "nonexpert" testimony as well in determining
dangerousness.
Finally, the court rejected Kienitz's argument that the commitment
order violated his due process rights. In essence, this claim relied
upon his other allegations of error.
Justice Prosser did not participate in this case.
Experts - Opinion Testimony - Inadmissible Bases
State v. Watson, No.
95-1067 (filed 29 June 1999)
The state filed a petition alleging that Watson was a sexually
violent person under chapter 980 of the Wisconsin Statutes. After
conducting a probable cause hearing, the circuit court dismissed the
petition because of insufficient evidence. The court of appeals
affirmed.
The supreme court, in a decision written by Justice Prosser, reversed
in an opinion that addresses the role of expert testimony and the
function of the probable cause determination in chapter
980 cases.
First, the court held that a State's witness properly testified as an
expert on Watson's "sexual motivation." Under section
907.02, expert testimony is admissible whenever it will "assist" the
jury. In this case, "the average person is simply not prepared to
expound on paraphilia or other sex-related mental disorders. An expert
should be able to assist the fact finder in determining the nature and
source of an offender's motivation."
Second, the court addressed "whether expert testimony based in whole
or in part on inadmissible evidence may itself be admitted into
evidence." Here the state's expert had relied on a hearsay statement by
one of Watson's victims recorded in a presentence investigation report
(PSI). Clinical psychologists and other corrections' specialists
routinely and reasonably rely on PSIs. Hence, under section 907.03, such
experts can predicate their opinions on this type of inadmissible
bases.
This conclusion led to a third point: the weight given to the
expert's testimony. Section 907.03 permits expert's opinions based on
inadmissible evidence, but it "does not transform inadmissible hearsay
into admissible hearsay." And most certainly, the rule "does not permit
hearsay evidence to come in through the back door of direct
examination." In short, the expert's reasonable reliance on the PSI did
not make the victim's hearsay admissible. In chapter 980 cases, the
trial court must carefully evaluate expert opinions, especially where
they are based on inadmissible hearsay, in order to safeguard the
respondent's statutory and constitutional rights. [Civil and criminal
trial lawyers should note the supreme court's observations about how
inadmissible evidence under section 907.03 should be handled in jury
trials.]
Fourth, based on the supreme court's independent review of the entire
record, it was satisfied that the state had established probable cause
under chapter 980. Since this discussion is detailed and extremely
fact-intensive, space constraints do not permit further elaboration.
Justice Steinmetz did not participate.
Supervised Release from Confinement - Power of Circuit Court to
Order Creation of Programs or Facilities Necessary to Accommodate an
Order for Supervised Release
State v. Sprosty, No.
97-3524 (filed 30 June 1999)
The respondent was committed as a sexual predator under Wis. Stat. chapter
980 in 1995. In 1996 he filed petitions for supervised release
and/or for discharge. After an evidentiary hearing the circuit court
granted the petition for supervised release and ordered that a treatment
plan be developed and that the respondent remain in custody until
further order of the court. Several months later the circuit court
determined that the programs and facilities necessary for the
respondent's treatment and supervision, as well as for the protection of
the community, were not available in Crawford County (the respondent's
county of residence) or in other counties. The court further concluded
that it could not compel private agencies to accept the respondent nor
would it require the state to build facilities in order to provide
supervised release. Accordingly, it denied the respondent's supervised
release and returned him to secure confinement. The court of appeals
reversed, determining that the unambiguous statutory language of Wis.
Stat. section 980.08(5) does not allow a circuit court to refuse to
order release once it has determined that release is appropriate.
In a majority opinion authored by Justice Wilcox, the supreme court
affirmed the court of appeals. Under the statute a petition for
supervised release must be granted unless the state proves by clear and
convincing evidence that the person is still a sexually violent person
and that it is still substantially probable that the person will engage
in acts of sexual violence if not confined in a secure mental health
unit or facility.
The first issue the supreme court considered was whether the circuit
court may consider the availability of facilities, the feasibility of
creating facilities if they do not exist, and the cost of such creation
when deciding whether to place a sexually violent person on supervised
release. The court concluded that section 980.08(4) requires the circuit
court to grant the petition for supervised release unless the state
proves its case by clear and convincing evidence. The statute permits,
but does not require, the circuit court to consider statutorily
articulated factors (such as where the person will live and how the
person will support himself or herself) in making its decision on
whether supervisory release is appropriate. Any consideration of costs
or availability of facilities must be in keeping with providing the
"least restrictive" means to accomplish treatment of the person and the
protection of the public. However, said the court, such considerations
should not ultimately trump the granting of a petition for supervised
release when the state has failed to prove its case.
The court next considered whether the circuit court has the authority
under section 980.08(5) to order a county department or the state
Department of Health and Family Services (DHFS) to create whatever
programs or facilities are necessary, regardless of cost, to accommodate
an order for supervised release. The court concluded that if supervised
release is appropriate, the court shall notify DHFS, DHFS and a county
department shall prepare a plan, the plan shall address the person's
needs, the plan shall specify who is responsible for providing treatment
and services, and the plan shall be presented to the court. If DHFS is
unable to arrange for a county to prepare a plan, the court shall
designate and order a county through DHFS to prepare a plan, and place
the person on supervised release in that county. In sum, it held that a
circuit court has authority to order a county, through DHFS, to create
whatever programs or facilities are necessary to accommodate an order
for supervised release.
The supreme court next considered whether the circuit court has the
authority to reconsider an earlier decision to order supervised release
upon obtaining more complete information on available facilities. It
concluded that nothing in the statute allows the circuit court to
reconsider its decision on supervisory release because of inadequate
facilities; rather, it must order a county to develop a plan and it must
place the person on supervised release pursuant to the plan in that
county.
The final issue for the supreme court's review involved deciding who
bears the cost of the necessary programs and facilities under chapter
980, the county department or DHFS. The court agreed with the state that
the responsibility to find, arrange, and plan for necessary programs and
facilities "is shared between DHFS and the county where the person will
live, or such other designated county. And as requested by the state, we
now hold that DHFS has the financial burden of paying for necessary
programs and facilities for those persons who are evaluated or committed
under Wis. Stat. chapter 980."
Justice Prosser did not participate in this decision.
Chief Justice Abrahamson filed a concurring opinion.
Torts
Lead Paint Poisoning - Common Law Duty of Landlords - Safe Place
Statute - Warranty of Habitability
Antwaun A. v. Heritage Mutual Ins.
Co., No. 97-0332 (filed 9 July 1999)
In 1991 the plaintiff (who was then 3 years old) was diagnosed with
lead poisoning. He contended that this poisoning was caused by lead
paint peelings, flakes, and chips that he had ingested in various
apartments in the city of Racine, two of which are involved in this
appeal. One was an apartment where the plaintiff and his mother resided
from 1990-1991. The other was a residence where the plaintiff's aunt
resided and where the plaintiff frequently was a guest. Shortly after
being diagnosed with lead poisoning, the plaintiff filed suit against
various corporations, individual landlords, and their insurers, alleging
various causes of action which are discussed below. The circuit court
granted summary judgment against the plaintiff on each one of them.
On the plaintiff's negligence claim, the supreme court was asked to
decide the following certified question from the court of appeals: Does
a landlord of an older residential rental property have a common law
duty to inspect, or test, for contamination from lead-based paint once
the landlord knows that the paint is flaking from the walls? In a
majority opinion authored by Justice Bradley, the court concluded that a
duty to test for lead paint arises whenever a landlord of residential
property constructed before 1978 (the federal Consumer Products Safety
Commission banned lead paint for residential uses after Feb. 27, 1978)
either knows or in the use of ordinary care should know that there is
peeling or chipping paint on the rental property. Where peeling or
chipping paint is present in a pre-1978 residential structure, the court
concluded that it is foreseeable that lead paint may be present which,
if accurate, would expose the inhabitants to an unreasonable risk of
harm.
The court next addressed the plaintiff's Safe Place Statute cause of
action. Wis. Stat. section
101.11(1) creates three different categories of persons covered by
the statute: employers, owners of places of employment, and owners of
public buildings. The plaintiff asserted claims under the latter two
categories. The court concluded that the claim that the apartments were
a "place of employment" under the statute was rejected. It was
uncontroverted that neither landlord employed any person on a regular
basis at their properties. As to whether the properties in question were
"public buildings" as used in the Safe Place Statute, the statute speaks
of structures used by the public or by three or more tenants. The
plaintiff contended that the term "tenant" refers to persons in
possession while the landlords argued that the term refers to the number
of units in the building. The court believed that the landlords had the
better argument. This interpretation excluded one of the properties from
the statute because it had only one unit. The other property contained
three units and conceivably could be covered under the statute. However,
the peeling and chipping paint in that residence was not in an area open
to the public or shared by the other tenants. It is thus outside the
coverage of the Safe Place Statute.
The plaintiff also argued that violations of a state lead paint
statute and a City of Racine ordinance prohibiting lead paint from being
used on most surfaces constitute negligence per se. The supreme court
disagreed. It was unable to conclude that the Legislature or the Racine
City Council intended that a violation of their respective laws
constitutes negligence per se.
Finally, the court considered the plaintiff's claim that the circuit
court erred in granting summary judgment in favor of the landlords on
his warranty of habitability cause of action. Under the warranty of
habitability doctrine, the residential lease between a landlord and
tenant carries with it an implied promise that the premises will be fit
for human habitation. The court concluded that the plaintiff's implied
warranty of habitability cause of action cannot be maintained against
the landlord of the premises where his aunt lived because the plaintiff
was not in privity of contract with that landlord. His implied warranty
cause of action cannot be maintained against the landlord of the
property where he and his mother lived because he seeks compensatory
rather than contractual damages. A tenant's claim for breach of the
implied warranty of habitability is a breach of contract claim for
contractual damages. An injured party's claim for personal injuries is a
tort claim in negligence for compensatory damages. Such claims may
coexist, they may be caused by the same act, and they may be owned by
the same party if it is the tenant who was injured. It is not the breach
of warranty, however, that gives rise to the cause of action for the
personal injury. Instead, it is the negligent act or omission.
Justice Crooks filed a concurring opinion that was joined by Justice
Wilcox.
Immunity - Public Officers
Kierstyn v. Racine Unified School
Dist., No. 97-1573 (filed 9 July 1999)
John and Judith Kierstyn were employed by the Racine Unified School
District for many years. When Judith was diagnosed with cancer, the
Kierstyns met with a benefits specialist employed by the district in
order to discover what disability benefits Judith was entitled to
receive. The specialist was not an agent of the Wisconsin Retirement
System and could not authoritatively represent to district employees
what WRS benefits they were entitled to receive. The Kierstyns alleged
that the specialist gave them incorrect information about the timing of
an application for disability benefits and, because the application was
not filed prior to Judith's death, her husband received a nonannuitant
survivor benefit and not the more financially generous disability
survivorship annuity.
The district filed a motion for summary judgment contending that it
and its benefits specialist were immune from suit under Wis. Stat. section
893.80(4). The circuit court granted the motion, concluding that the
specialist's act of giving information was a discretionary act rather
than a ministerial one. The court of appeals affirmed that decision. In
a majority decision authored by Justice Bradley, the supreme court
affirmed the court of appeals.
Pursuant to section 893.80(4) governmental immunity relieves both a
political subdivision and public officials from acts done pursuant to
legislative, judicial, quasi-legislative, or quasi-judicial capacities.
To describe an activity as quasi-judicial or quasi-legislative is to say
that the activity involves the exercise of discretion. This immunity,
however, is not absolute. Over time the supreme court has recognized
several exceptions to public officer immunity, some of which were
claimed in this case and were addressed by the supreme court.
The court began its analysis by considering whether the benefits
specialist was under a ministerial duty to provide Wisconsin Retirement
System information to district employees and, even if he wasn't, whether
a ministerial duty was created when he chose to provide that
information. The court concluded that the school district was under no
legal obligation to hire a benefits specialist and that the specialist
involved in this case was under no legal obligation to offer advice
about WRS benefits to employees of the district. Similarly, once the
specialist elected to provide some WRS benefit information, he was under
no legal duty to do so in a particular manner or according to any
particular rules. While the benefits statute may have been clear and the
specialist may have negligently applied it when advising the plaintiffs,
the statute did not direct the specialist to act in any manner. In sum,
the specialist was under no ministerial duty.
Even where a public officer's duty is not prescribed in its time,
mode, and occasion so that nothing remains for the officer's judgment,
the factual circumstances of the case may nevertheless clearly require a
public officer to act. This "known danger" exception to public officer
immunity is a very limited one, having rarely been asserted
successfully. The "known danger" exception is effective only in those
cases where the "nature of the danger is compelling and known to the
officer and is of such force that the public officer has no discretion
not to act." The supreme court could not say that the possibility of
reduced disability benefits was "of such force" to impose a duty on the
benefits specialist to act.
Finally, the plaintiff argued that even if the specialist's duty was
discretionary and did not present a known danger, the specialist is not
entitled to immunity because any discretion on his part was
"professional" in nature. This argument was based on Scarpaci v.
Milwaukee County, 96 Wis. 2d 663, 292 N.W.2d 816 (1980). In that
case the supreme court decided that discretionary acts performed by
public officers would only be clothed in immunity if those acts involved
"governmental discretion." As a result, the court held that a county
medical examiner's decision to perform an autopsy was an exercise of
governmental discretion. However, the medical examiner was not entitled
to immunity for any negligence in his performance of the autopsy. While
the court recognized that the medical examiner's method of performing
the autopsy was discretionary in nature, it concluded that the
"discretion was medical, not governmental" and therefore not clothed in
immunity. Since 1980 when Scarpaci was decided, this exception
has been successfully asserted on only two other occasions, both
occurring in the medical context. In Stann v. Waukesha County,
161 Wis. 2d 808, 468 N.W.2d 775 (Ct. App. 1991), the court of appeals
concluded that Scarpaci's rule extends no further than the
medical setting.
In this case the supreme court declined the invitation to revisit the
Stann rule. Even if it were inclined to conclude that Scarpaci
should be interpreted as excluding a public officer's "professional"
discretionary acts from immunity, it would not include a benefits
specialist within that category.
In sum, the court concluded that the plaintiff did not show that the
specialist's conduct fits any of the exceptions to public officer
immunity. Accordingly, it affirmed the court of appeals.
Justice Bablitch filed a dissenting opinion that was joined by
Justice Crooks.
Products Liability - Oregon Statute of Repose - Oregon Damage Limits
- Inconsistent Verdicts - Punitive Damages
Sharp v. Case Corp., No.
96-2559 (filed 23 June 1999)
A Racine County jury awarded more than $6 million in damages to
Sharp, a minor residing and working in the state of Oregon, for injuries
he suffered while clearing hay from a baler that was attached to a
tractor manufactured in Wisconsin in 1972 by Case Corporation. The jury
also made an award of $2 million for punitive damages. The circuit court
entered judgment in accordance with the jury verdict and the court of
appeals affirmed the circuit court. In a unanimous decision authored by
Chief Justice Abrahamson, the supreme court affirmed the court of
appeals.
The first issue on appeal was whether the court of appeals erred in
refusing to apply the products liability statute of repose of the state
of Oregon, which Case Corporation asserted would bar this action as
untimely. After reviewing the Oregon case law, the supreme court
concluded that Oregon's product liability statute of repose is not
applicable to a post-sale warning claim, such as the one involved in the
present case. Because Wisconsin law contains no such statute of repose,
the court held that no genuine conflict exists between the laws of
Wisconsin and Oregon on this issue and that the plaintiff's action was
timely under Wisconsin law.
The next issue was whether the court of appeals erred in refusing to
apply an Oregon law that Case asserted limits the plaintiff's recovery
of noneconomic damages to $500,000. Because Oregon courts are not
applying the Oregon statutory limits on noneconomic damages, the
Wisconsin Supreme Court determined that it should not apply the Oregon
statutory limits in this case even if it were to decide, which it did
not, that this Oregon law is applicable in this case. The court
therefore applied Wisconsin law. No Wisconsin law limits noneconomic
damages in products liability cases.
The next issue was whether the court of appeals erred in refusing to
strike down the jury verdict on the grounds of inherent and fatal
inconsistencies in the jury's responses to the special verdict
questions. Case Corporation argued that it is inconsistent for a jury to
find that the product was not unreasonably dangerous in a strict product
liability sense but that the product was negligently designed. Case
urged the court to overrule Greiten v. LaDow, 70 Wis. 2d 589,
235 N.W.2d 677 (1975). Greiten held that a jury finding that a product
is not unreasonably dangerous does not preclude a jury finding of
negligent design. Later cases have applied the Greiten rule and the
court declined Case's invitation to overrule it.
The last issue considered by the court was whether the circuit court
erred, as a matter of law, in submitting the question of punitive
damages to the jury. A circuit court should not submit the issue of
punitive damages to the jury in the absence of evidence warranting a
conclusion to a reasonable certainty that the party against whom
punitive damages may be awarded acted with the requisite "outrageous"
conduct. One's conduct is outrageous if done either maliciously or in
wanton, willful, and reckless disregard of the plaintiff's rights. In a
products liability case, a manufacturer may be found to have acted in
reckless disregard if, after having gained specific knowledge of a
product's defect and its potential harm, the manufacturer fails to take
some action that the defect demands, such as adequate testing
procedures, effective quality control, sufficient warnings, or adequate
remedial measures such as product recalls or post-sale warnings. The
supreme court agreed with the circuit judge's conclusion that the
evidence in this case was sufficient to send the question of punitive
damages to the jury.
Justice Wilcox did not participate in this decision.
Trials
Juries - Disqualification - Bias
State v. Faucher, No.
97-2702-CR (filed 8 July 1999)
The supreme court used this case as a vehicle to "clarify"
Wisconsin's "jury bias jurisprudence." As such, it has enormous
importance in civil or criminal cases that involve any allegation of
juror bias, whether it surfaces during jury selection or later. The
opinion contains an enormously helpful discussion of past case law and
the reasons why the supreme court concluded that a new approach was
called for.
The court observed that prior cases had adopted terminology that
described juror bias as "implied," "actual," or "inferred." Concluding
that these terms had outlived their usefulness, Justice Steinmetz
explained why the court had elected to jettison this terminology and
adopt a schema that more accurately reflects "both the reason why a
juror cannot be impartial, and the analysis a circuit court should use
to discern whether a prospective juror is or is not impartial." The new
terminology includes categories of "statutory," "subjective," and
"objective" bias. "Statutory bias" relates to those persons disqualified
pursuant to particular statutes, such as section
805.08(1) of the Wisconsin Statutes. "Subjective bias" describes
"bias that is revealed through the words and the demeanor of the
prospective juror." Normally, this is detected during voir dire and the
circuit court is clearly in a superior position to make this
determination. "Objective bias" refers to whether "the reasonable person
in the individual prospective juror's position could be impartial." The
circuit court must consider the voir dire responses and the facts
relating to the case. The opinion strongly underscores the importance of
making a complete record concerning any allegation of juror bias. The
roles of court and counsel are addressed throughout the opinion.
In this case, a juror belatedly recognized the state's key witness, a
woman who observed the defendant sexually assaulting an elderly nursing
home patient. Toward the close of the state's case-in-chief, the judge
conducted an individual voir dire of the juror. The juror expressed a
strong, clear opinion that the witness was a person of integrity who
would not lie under oath but also said that he could set aside this
opinion based on the evidence. The supreme court upheld the trial
court's determination that the juror was not subjectively biased on the
facts of record. It nevertheless concurred with the court of appeal's
determination that the juror was objectively biased: "a reasonable
person in his position could not set the opinion aside despite the best
of intentions to do so."
Jury Selection - Juror Bias - Prior Jury Service
State v. Kiernan, No.
97-2449-CR (filed 8 July 1999)
The defendant was tried for OWI. The very same defense attorney had
used the identical defense before another jury in the same county
several days earlier - without success. When the 20 prospective jurors
entered the courtroom, defense counsel observed that five of them had
served on the earlier jury. The trial judge refused to remove the jurors
for cause. The impaneled jury convicted the defendant. The court of
appeals reversed the conviction and the supreme court affirmed in an
opinion that applied the Faucher (see above) analysis to a case
involving jurors allegedly biased by prior jury service.
Writing for the supreme court, Justice Bradley observed that there
was no allegation of "statutory bias" (an admittedly rare occurrence)
and the failure to record the voir dire hamstrung the court's
determination of "subjective bias." Justice Bradley stressed the
significance of a careful and complete record on this issue, noting that
appellate courts are already at a disadvantage in gauging subjective
bias because of the importance of demeanor and sincerity: "[t]ake away
the transcript and an appellate court's disadvantage increases
exponentially."
The court next addressed objective bias, determining two issues.
First, Wisconsin law does not require that veteran jurors be
categorically removed "for cause as a matter of law from subsequent
trial with facts and issues that are nearly identical to the initial
trial." Rather, an individualized showing will be required. Second, the
court was satisfied that such an individualized showing had been made in
this case. The prospective jurors, with "admirable candor," revealed
that they would give no weight to the proffered defense to the effect
that a BreathalyzerTM could yield inaccurate readings "for
reasons other than operator error or machine malfunction." In short,
they had expressed their intention not to listen to the defense's
evidence. This constituted objective bias.
Justice Crooks dissented based on his views about the automatic
reversal rule in cases where the defense is forced to exercise
peremptory strikes because jurors should have been disqualified for
bias. Justice Bradley responded in a concurrence.
Jury Selection - Juror Bias - Automatic Error
State v. Mendoza, No.
97-0592-CR (filed 8 July 1999)
The defendant was convicted of possessing cocaine with intent to
deliver. During jury selection, the trial judge removed four prospective
jurors based on their prior criminal records. The court of appeals
reversed.
The supreme court, in an opinion written by Justice Prosser, reversed
the court of appeals. In essence, the trial judge had "equated criminal
conviction with cause" to strike. This was an error of law because
Wisconsin law clearly does not automatically disqualify prospective
jurors based on prior criminal convictions. The court then looked at the
record to determine whether the particular jurors, not considered as a
"class," could have been stricken.
First, the court applied the Faucher standards (see above)
to this case. The excluded jurors exhibited neither "statutory bias" or
"subjective bias" as defined in Faucher. Three of the four
jurors, however, could have been stricken for "objective bias" based on
their criminal pasts and voir dire responses. (The discussion is fact
intensive and will not be summarized.) But a fourth juror, a man with a
prior burglary conviction in Alabama more than 30 years ago, did not
meet the threshold of objective bias.
The supreme court held that this error in excluding the fourth juror
did not necessitate automatic reversal. Specifically, the court declined
"to recognize the erroneous dismissal of a juror for cause as an
additional peremptory challenge." Thus, the defendant received his full
complement of strikes, unlike other cases where the judge's erroneous
refusal to strike an unworthy juror forced the defendant to spend a
peremptory strike to remedy the mistake. Applying harmless error
analysis, the court upheld the conviction. The defendant conceded that
the jury actually impaneled was impartial.
Jury Selection - Peremptory Strikes - Failure to Object -
Ineffective Assistance
State v. Erickson, No.
98-0273-CR (filed 8 July 1999)
Erickson was tried for sexual assault and child enticement. During
jury selection, the judge informed both sides that they would each get
four peremptory strikes. That was incorrect. Because of Erickson's
criminal record and the penalty enhancer he faced, both the state and
Erickson should have received seven peremptory challenges, not four. No
one caught the mistake or objected at trial. It was undisputed that an
impartial jury was impaneled, although Erickson used a peremptory strike
to remove a juror who claimed to have been sexually abused as a child.
The jury acquitted Erickson of sexual assault but convicted him of
enticement. During postconviction proceedings, the trial judge
determined that he had to apply the "automatic reversal rule" in light
of trial counsel's deficient performance. The court of appeals certified
the case to the supreme court.
The supreme court, in an opinion written by Justice Bradley, reversed
the circuit court's order requiring a new trial. Because the error had
been waived at trial, the supreme court refused to approach "this case
as if Erickson had properly preserved his loss of peremptory strikes
with an objection at the time of the circuit court's error." Rather than
apply a straightforward rule of automatic reversal, the situation called
for application of the ineffective assistance of counsel standard. There
was little doubt that counsel's representation was deficient. The real
question centered upon whether any prejudice constituted a "'probability
sufficient to undermine the confidence in the outcome' of the case." The
court declined to presume prejudice in this setting, especially since he
had been tried by an impartial jury and the state and the defense
received equal numbers of peremptory strikes. Citing the companion
decision in Mendoza, the supreme court limited the automatic
reversal rule of State v. Ramos,
211 Wis. 2d 12 (1997), to situations where, upon proper objection, the
trial judge erroneously retained an unqualified juror and forced the
defense to spend a peremptory, leaving it with fewer peremptory strikes
than the state.
Based on the record, the court refused to find actual prejudice,
especially where appellate counsel candidly conceded the difficulty of
making any showing beyond rank speculation.
The final issue concerned whether the one juror who claimed to have
been a child sexual abuse victim herself should have been struck for
cause. Applying earlier cases, the supreme court found no reason to
question the judge's determination that she could act fairly and
impartially as a juror.
Worker's Compensation
Necessity of Treatment Orders - Appeals - Service of Notice of
Appeal
McDonough v. Wisconsin Dep't of
Workforce Development, No. 97-3711-FT (filed 30 June 1999)
The plaintiff provided medical services for a City of Wisconsin
Rapids employee who injured his shoulder while at work. His injuries
were compensable under worker's compensation. The plaintiff submitted a
claim to the worker's compensation carrier which refused to pay a
portion of it, asserting that the treatment provided after a certain
date was medically unnecessary.
The plaintiff filed a necessity of treatment dispute request with the
Department of Workforce Development (DWD) pursuant to Wis. Stat. section
102.16(2m). The department determined that the services provided by
the plaintiff were not medically necessary. The order stated that it
would become final within 30 days unless appealed to the circuit
court.
The critical issue in this case involved service of the appeals. The
plaintiff argued that he complied with statutory requirements by serving
the Labor and Industry Review Commission (LIRC) with enough copies of
the summons and complaint as there were defendants. DWD contended that
service was defective because the plaintiff should have served DWD with
the requisite number of copies.
In a unanimous decision authored by Justice Bablitch, the court held
that service for appeals from DWD necessity of treatment orders can be
achieved by timely serving either DWD or the LIRC with enough copies of
the summons and complaint as there are defendants in the case. Because
the plaintiff served enough copies on LIRC, the court concluded that he
achieved proper service.
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
