Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appellate Procedure | Attorneys
|
| Campaign Contributions | Criminal
Law | Criminal Procedure |
| Evidence | Frivolous Actions | Trade Secrets |
Appellate Procedure
Timeliness - President's Day
Klingbeil v.
Perschke, No. 99-0488 (filed 20 May 1999) (ordered published 30
June 1999)
The court of appeals, per curiam, dismissed a defendant's appeal as
untimely. Since a notice of entry of judgment had been filed, the
defendant had 45 days to file a notice of appeal. The forty-fifth day
was Saturday, Feb. 13, 1999. It was undisputed that the defendant had
one more day to file the notice of appeal. The issue was whether the
additional day was Monday, which happened to be President's Day, or the
next day, Tuesday. The defendant filed the notice of appeal on
Tuesday.
The court of appeals held that the notice was untimely by application
of section
801.15(1)(b) of the Wisconsin Statutes. Although President's Day was
a holiday for purposes of some statutes, the circuit court clerk's
office was open that day and thus the defendant was obligated to file
the notice of appeal that Monday.
Attorneys
Clients - Confidentiality - Release of Records
Thiery v. Bye, No.
98-2796 (filed 4 May 1999) (ordered published 30 June 1999)
A client brought claims for legal malpractice and invasion of privacy
against her lawyer and his firm. The lawyer had represented the client
in a personal injury claim that was later settled. The lawyer requested
the client's consent to use her medical records and deposition
transcripts in a class taught at a technical college by a
nurse/investigator employed by the lawyer's office. The lawyer promised
in writing that the client's identity would be "sanitized" through
redaction. The records were never redacted but the client did receive
$500 in exchange for the technical college's right to use the material.
The trial judge dismissed the claims, ruling that the lawyer had no duty
to redact the documents.
The court of appeals, in an opinion written by Judge Myse, affirmed
in part and reversed in part. First, the lawyer clearly had a duty. The
record belied the lawyer's claim that no attorney-client relationship
existed at the time of the request to use the records (for example, the
settlement had not yet been distributed). The lawyer's breach of his
promise to redact the records is "measured from the time he made the
representation to her," even though the actual breach occurred after the
"attorney-client relationship terminated." Moreover, "the
confidentiality of a client's records is ongoing and transcends the
termination of the case." The court relied in part on SCR
20:1.6(a) (1998), the commentary to which provides: "The duty of
confidentiality continues after the client-lawyer relationship has
terminated."
Summarizing its holding, the court stated "that an attorney has a
duty to maintain the confidentiality of documents in his possession as a
result of legal services rendered to a client. This duty exists
notwithstanding that litigation may or may not be pending or that
services are completed. To contend otherwise is inconsistent with an
agent's duty to protect a principal's confidential information and would
limit an attorney's obligation to his client to only that conduct
performed while litigation is being prosecuted. It would remove any
obligation for the reasonable care and handling of confidential
documents in counsel's possession as a result of his legal
representation of a client."
The lawyer also acquired a duty based on his representation to the
client that her identity would be redacted before the records were
released. Thus, the lawyer had no authority to release the client's
confidential records other "than in accordance with the conditions
imposed pursuant to his representation and [the client's]
authorization." (The court also held that expert testimony was not
necessary to establish the duty.)
Finally, the court upheld the dismissal of the client's claim against
the nurse/investigator in her capacity as a law firm employee. Her work
as an instructor was entirely separate from her employment with the
firm. For purposes of summary judgment, the record supported the trial
court's finding that the nurse/investigator acted entirely within her
capacity as a technical college instructor when soliciting and copying
the records.
Campaign Contributions
Lobbyists - Contributions by Spouses of Lobbyists
Katzman v. Wisconsin Ethics
Board, No. 98-2884 (filed 6 May 1999) (ordered published 30
June 1999)
William Katzman is a lobbyist, licensed by and registered with the
Ethics Board to engage in lobbying. His wife Joanne is not a lobbyist.
The circuit court concluded that the statute prohibiting lobbyists from
making contributions to incumbents and candidates for partisan elective
state office, except during a specified period preceding general
elections, cannot be violated when a political contribution is made by a
lobbyist's spouse from marital funds. The court thus enjoined the board
from investigating political contributions made by Joanne except to the
limited extent necessary to determine whether she made any such
contributions from William's separate property.
The court of appeals, in a decision authored by Judge Deininger,
affirmed. It concluded that the trial court correctly interpreted the
statutes governing political contributions. Wis. Stat. section
13.625(1)(c) contains no prohibition against a lobbyist's spouse
making political contributions, from any source, at any time. The
conduct of a lobbyist's spouse is not addressed at all in any of the
lobby law provisions of chapter 13.
The court also looked to chapter 11 of the Wisconsin Statutes, which
governs campaign financing, to determine what is and what is not
permissible with respect to the making of campaign contributions. Section
11.24(1) provides, among other things, that "no person may, directly
or indirectly, furnish funds or property to another person for the
purpose of making a contribution in other than the person's own name."
The court concluded that it is clear that neither a lobbyist nor anyone
else may "furnish funds" to another person for subsequent transfer to a
candidate, in an effort to disguise the true source of a political
contribution. However, it held that when a married person makes a
contribution to a candidate from his or her marital property, the person
does so with his or her own funds, which means that the funds were not
"furnished" by his or her spouse within the meaning of section
11.24(1).
Criminal Law
Sexual Assault of a Child - "Person Responsible
for Welfare of Child"
State v. Ward, No.
98-2530-CR (filed 13 May 1999) (ordered published 30 June 1999)
The defendant was convicted of four counts of failing to act to
protect a child from sexual assault when she had a duty to do as a
"person responsible for the welfare of a child." See Wis. Stat. §
948.02(3). She argued that the trial court erred when it instructed
the jury that a "person responsible for the welfare of a child," which
is defined at section 948.01(3), includes a person "used by" one legally
responsible for the child's welfare to exercise temporary control or
care for the child. The statute speaks in terms of a person employed by
one legally responsible for a child's welfare to exercise temporary
control or care for the child. The defendant argued that she was not so
employed. The evidence showed that the assaults happened when neighbor
children visited the defendant's house trailer. They paid such visits
regularly, the visits were with the permission of the victims' parents,
and the visits were welcomed by the defendant. The defendant was never
paid for caring for any of the victims.
In a decision authored by Judge Dykman, the court concluded that the
defendant was a person responsible for the welfare of a child within the
meaning of section 948.02(3). The Wisconsin Supreme Court has held that
a person may be responsible for the welfare of a child if he or she is
"used by the child's legal guardian to act as a caretaker for the
child." See State v.
Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996). Therefore, all
that is necessary for establishing that one is legally responsible for a
child's welfare is that the person who is legally responsible for the
child's welfare "make use of" a person who then knowingly fails to
prevent the sexual assault of the child. The circuit court therefore did
not erroneously exercise its discretion by instructing the jury that "a
person employed or used by one legally responsible for the child's
welfare to exercise temporary control or care for the child" could be
found guilty of failing to act to protect a child from sexual
assault.
Attempted First-degree Intentional Homicide and
First-degree Reckless Injury - Fetus as the Victim
of Its Mother's Acts
State v. Deborah
J.Z., No. 96-2797-CR (filed 26 May 1999) (ordered published 30
June 1999)
One week before her due date, the defendant was drinking in a local
tavern when she believed she was going to have her baby. At the hospital
she was uncooperative, belligerent at times, and very intoxicated. Her
blood alcohol concentration exceeded 0.30 percent. The defendant
allegedly told a nurse, "if you don't keep me here, I'm just going to go
home and keep drinking and drink myself to death, and I'm going to kill
this thing because I don't want it anyways."
The defendant consented to a cesarean section and gave birth to a
baby girl. At birth the baby was extremely small, her physical features
presented fetal alcohol effects, and her blood alcohol level was .199
percent. After a few weeks the baby was discharged to a foster
family.
The state charged the defendant with attempted first-degree
intentional homicide and first-degree reckless injury. She was bound
over following preliminary hearing and was permitted to appeal the
denial of a motion to dismiss the information for lack of probable cause
at the preliminary examination.
On appeal the defendant argued that the state did not establish at
the preliminary hearing that it had probable cause to charge her with
these crimes. She urged that her alleged act of consuming alcohol while
pregnant does not satisfy the statutes' requirement that the act be
perpetrated against another "human being."
In a decision authored by Judge Anderson, the court of appeals
concluded that the term "human being" as used in the statutes involved
in this case was not intended by the legislature to refer to an unborn
child. Section
939.22(16) of the Wisconsin Statutes defines a human being as "one
who has been born alive." The court concluded that this definition
applies to any statute using that term in chapter
940 of the Criminal Code. According to the plain language of the
statutes, the court determined that the Legislature did not intend for
the statutes under which the defendant was charged to apply to actions
directed against an unborn child.
The state also argued that because the unborn child survived and was
successfully delivered, the "born alive" doctrine permits prosecution.
The appellate court noted that 31 states, by judicial decision, have
adopted the "born alive" rule that if an unborn child suffers a prenatal
injury at the hands of a third party and is born alive, certain civil or
criminal charges may be brought against the third party. However, the
state was unable to point to a case with a situation, similar to that in
this case, in which the "born alive" rule has been applied for
self-abuse by the mother which negatively impacts an unborn child that
is later "born alive."
Said the court in summary, to be convicted of attempted first-degree
intentional homicide and first-degree reckless injury, the defendant
must attempt to kill or injure someone who has been born alive. This is
not what the defendant was charged with doing in this case. The decision
whether to include an unborn child in the definition of a "human being"
is a policy issue best addressed by the Legislature.
Criminal Procedure
Confessions - Admissibility of Statements Obtained After
Invocation of Miranda Right to Counsel
State v. Franklin,
Nos. 98-2420-CR and 98-2421-CR (filed 20 May 1999) (ordered published 30
June 1999)
The defendant was arrested and brought to the police station for
questioning regarding a drug-related killing in which he was identified
as being the driver of the getaway car. It was undisputed that police
detectives, hoping to learn the identity of the shooter from the
defendant, intentionally elected to continue questioning the defendant
after he had invoked his Miranda right to counsel. The
detectives knew that, because they were violating the defendant's rights
under Edwards v. Arizona, 451 U.S. 477 (1981), they would lose
the opportunity to use any self-incriminatory statements obtained from
the defendant as substantive evidence against him. During the
interrogation the defendant identified the person who had done the
shooting.
The defendant moved to suppress the statements he made to the police.
The circuit court ruled that, while the Edwards violation required
suppression of any evidence of the defendant's statements in the state's
case-in-chief, because the statements were voluntarily made, they could
be used by the state for impeachment or rebuttal purposes should the
defendant elect to testify at his trial.
In a decision authored by Judge Eich, the court of appeals affirmed.
An accused person has an absolute right to have counsel present during
custodial interrogation. Miranda v. Arizona, 384 U.S. 436
(1966). Once the Fifth Amend-ment right to counsel is invoked, all
police-initiated questioning must stop until counsel is present - unless
the accused initiates further communication with the police. See
Edwards, supra. An involuntary statement obtained in
violation of these principles is inadmissible at trial for any purpose.
The court concluded, though, that if the statement is voluntary, even if
it was secured by the police in violation of Miranda and/or
Edwards, it may be used to impeach the defendant's conflicting
testimony - although it is inadmissible in the prosecution's
case-in-chief.
In so holding the court declined to adopt the position of the
defendant that a presumption of involuntariness should attach to all
statements obtained by police after the suspect's invocation of his or
her right to counsel. Instead, the court looked to those cases that have
held that a statement is voluntary or involuntary depending upon whether
it was compelled by coercive means or improper police practices, a
determination that involves an examination of the "totality of the
circumstances" weighing the defendant's personal characteristics against
coercive police conduct.
Interrogation - Right to Counsel -
Invoking Massiah Right to Counsel
State v. Dagnall,
No. 98-2746-CR (filed 27 May 1999) (ordered published 30 June 1999)
The defendant was charged with first-degree intentional homicide in
Dane County and a warrant was issued for his arrest. He was thereafter
arrested in Florida and two Dane County detectives traveled to Florida
to interview him and return him to Wisconsin. They were aware that,
before leaving for Florida, the sheriff's department in Dane County had
received a letter from a Madison attorney indicating that he was
representing the defendant and was aware that he had been arrested in
Florida. The letter concluded by stating that counsel did not want
anyone to question the defendant unless he was present.
Upon arrival in Florida, the detectives met with the defendant in
jail. When the officers identified themselves, the defendant responded:
"My lawyer told me that I shouldn't talk to you guys." The defendant was
then told that the officers had received information from others
implicating the defendant in the murder and "were interested in
obtaining his account." The defendant was told that it was up to him
whether he wanted to give the officers a statement. After the
Miranda warnings were read to the defendant, the defendant
apparently indicated that he would talk to the officers until he felt
that he would be at a point where he would incriminate himself. During
the hour-long interrogation that followed, the detectives elicited
inculpatory information from the defendant. The circuit court denied the
defendant's motion to suppress the statements made to the police
officers. In a decision authored by Judge Eich, the court of appeals
reversed.
The Sixth Amendment provides a person who has been charged with a
crime the right to counsel at all critical stages of the proceedings.
Massiah v. United States, 377 U.S. 201 (1964). The right
attaches upon formal commencement of prosecution - the filing of the
complaint or issuance of a warrant. Once the right has attached and been
asserted, all further uncounseled police-initiated interrogation
concerning the charged crime is barred, and any subsequent waivers on
the part of the accused are presumed to be invalid.
In this case there was no dispute that the defendant's Sixth
Amendment right to counsel attached when the criminal complaint was
filed in Dane County prior to his interrogation by the detectives. There
was disagreement, however, as to whether the defendant ever "asserted"
that right.
The precise degree of clarity required to invoke the Massiah
right to counsel under the Sixth Amendment is unsettled in the law. In
the related context of invoking the Miranda right to counsel, the U.S.
Supreme Court has indicated that a defendant must articulate his desire
to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a
request for an attorney. See Davis v. United States,
512 U.S. 452 (1994). In this case the court thought that greater leeway
should be afforded to charged defendants and that, therefore, a charged
defendant may invoke his or her Sixth Amendment right to counsel with
statements or actions that are somewhat less than the standard
articulated in Davis. Applying this conclusion to the facts of this
case, the court was satisfied that the circumstances known to and facing
the detectives when they questioned the defendant in Florida, which are
summarized above, would warrant a reasonable officer to understand that
the defendant was invoking his right to counsel. They continued the
interrogation after the defendant had invoked his right to counsel and
therefore the statements made by the defendant should have been
suppressed.
Evidence
Experts - Qualifications - Directed Verdict
Tanner v. Shoupe,
No. 97-1566 (filed 20 May 1999) (ordered published 30 June 1999)
The plaintiff brought this products liability action involving a
battery that exploded and injured him. The trial judge directed a
verdict in the defendant's favor after the plaintiff rested his
case-in-chief. The plaintiff appealed the exclusion of his expert
witness and the trial judge's decision to direct verdicts on other
issues.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. In its primary discussion, the court held that the expert was
properly barred from testifying about the battery's defective design and
the cause of the explosion, but the witness should have been permitted
to testify about a damaged vent cap and the adequacy of the warnings.
The court of appeals agreed that the expert was not qualified despite
his having worked with batteries for more than 30 years as a mechanic,
consultant, and technical school instructor. His actual experience
investigating "only two" battery explosions also rendered him
unqualified on the causation issue. There was, however, no requirement
that the expert have "expertise" on warnings in order to testify about
their adequacy. Considering the erroneously excluded expert evidence,
the record did not support the directed verdict in favor of the defense
on the damage to the vent cap and the adequacy of the warnings.
Attorney-client Privilege - Work Product - Videotaped
Interviews
Estrada v. State,
No. 98-3055 (filed 25 May 1999) (ordered published 30 June 1999)
The issue in this case was whether "a videotaped interview of the
victim conducted by the alleged perpetrator's spouse is privileged as
either attorney communication or attorney work product." The court of
appeals, in an opinion written by Judge Hoover, upheld a finding that
this interview was not so protected.
Ramiro and Tammy Estrada were husband and wife. Tammy ran an in-home
day care service. A child, S.J., complained that Ramiro had sexually
assaulted her. When Tammy contacted her lawyer, he advised her that it
would be helpful to have more information. Tammy videotaped her
interview of S.J. and gave the tape to her attorney the next day. During
a criminal investigation, the state subpoenaed the videotape pursuant to
section
968.135 of the Wisconsin Statutes. The Estradas moved to quash the
subpoena.
The videotape clearly failed to qualify as a confidential communication
under section
905.03, the lawyer-client privilege. The presence of a third person,
S.J., standing totally outside the privileged relationship, stripped the
interview of any confidentiality. Nor was the videotape work product.
Counsel never submitted "an affidavit indicating that he directed Tammy
to make the videotape or claiming that he has adopted the videotape as
his own work product." Nor did Tammy show that counsel directed her to
interview S.J. or to ask particular questions.
Frivolous Actions
Attorney's Conduct - Bad Faith
Elmakias v. Wayda,
No. 98-3222 (filed 13 May 1999) (ordered published 30 June 1999)
The court of appeals, in an opinion written by Judge Dykman, upheld
an order against a lawyer compelling him to pay the opponent's attorney
fees because the lawyer maintained a frivolous action under section
814.025(3)(a) of the Wisconsin Statutes. The order arose out of a
"highly contentious landlord-tenant dispute." The lawyer continued to
pursue the client's "claims and defenses when he should have known they
were meritless and being maintained for improper purposes."
(Emphasis original.) Here the lawyer had irrefutable evidence "after the
suit was commenced that the 'unauthorized' entry was, in fact,
authorized, and that his client had a history of harassing and
intimidating" the tenant. The court closed with this admonition: "An
attorney who knows that his or her client is asserting a claim solely to
harass or injure the opposing party, and still agrees to proceed with
that claim, will be held to have the same motive as his or her
client."
Trade Secrets
Particularity of Allegations - Impact of Confidentiality
Agreements
ECT International Inc. v.
Zwerlein, No. 98-2041 (filed 19 May 1999) (ordered published 30
June 1999)
In this case the plaintiff alleged that the defendant, its former
products manager, misappropriated trade secrets, including knowledge of
the workings of certain software for which the plaintiff is the sole
North American distributor.
The circuit court granted summary judgment to the defendant. One of
the issues on appeal involved the specificity required regarding
allegations of mis-appropriated trade secrets. In a decision authored by
Judge Anderson the court of appeals held that a party asserting a
protectable trade secret must describe it with sufficient particularity
to identify the specific trade secret at risk. In this case the
plaintiff's complaint repeated statutory language from the trade secrets
statute but these generalizations were not sufficient. The court looked
to a decision from the California Court of Appeals for guidance on what
is required of a party who seeks to protect trade secrets. The
California court required "the complainant to describe the subject
matter of the trade secret with sufficient particularity to separate it
from matters of general knowledge in the trade or of special knowledge
of those persons who are skilled in the trade, and to permit the
defendant (and the court) to ascertain at least the boundaries within
which the secret lies." See Diodes Inc. v. H.D.
Franzen, 67 Cal. Rptr. 19 (Cal. Ct. App. 1968).
Another issue in the case involved the impact of a confidentiality
agreement signed by the defendant. That agreement contained a time limit
and the defendant agreed not to divulge any trade secret "during or for
a period of one year after the termination of [his] employment." The
court of appeals concluded that by limiting the period in which the
employee agreed not to divulge trade secrets, the plaintiff manifested
its intent that after one year there was no need to maintain the secrecy
of any sensitive and confidential information the defendant learned
while employed.
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
