2000 Significant Court Decisions
In his annual feature, the author highlights what
he believes are significant Wisconsin Supreme Court and Court of Appeals
decisions for the year 2000.
by Daniel W. Hildebrand
Constitutional Law - Public School Finance
![2000 Significant Court Decisions](/SiteCollectionImages/WisconsinLawyer/2001/06/cases.jpg)
Probably the most difficult case decided in
2000 was Vincent v. Voight,1 which challenged the constitutionality of the state
school finance system under Chapter 121 and sections 79.10 and 79.14 of
the Wisconsin Statutes. Petitioners argued that the state school finance
system is unconstitutional under the Wisconsin Constitution 1) article
X, § 3 - the uniformity clause of the education article; and 2)
under article I, § 1 - the equal protection clause.
The court concluded that the purpose of article X, § 3 - the
uniformity clause, is to require that each student be provided with an
equal opportunity for a sound basic education, one that will equip
students for their roles as citizens and enable them to succeed
economically and personally. Petitioners failed to prove beyond a
reasonable doubt that the statutes were unconstitutional. Although
petitioners argued that there were inequities in the school finance
system resulting from disparity in the tax base and application of the
state aid formulae, the Wisconsin Legislature's standards must be
respected because the Legislature is uniquely equipped to evaluate and
respond to such questions of public policy. The court relied upon
previous cases indicating that disparity in the revenue-raising capacity
of a school district does not constitute a violation of the uniformity
clause.
The court also held that revenue limits were not unconstitutional.
Such limits do not absolutely bar school districts from increasing
spending - they merely require a voter referendum to do so. Further,
revenue limits were intended to provide property tax relief and actually
have an equalizing effect because districts that spend less can increase
their spending by a greater percentage without first seeking a
referendum.
The court also held that the school finance system did not violate
the equal protection clause. Acknowledging that Wisconsin children have
a fundamental right to an equal opportunity for a sound basic education,
the equal protection clause does not require absolute equality or
precisely equal advantages on the basis of wealth. Absolute equality in
per-pupil expenditures is not required. The school financing system
provides all school districts with a guaranteed tax base.
Chief Justice Abrahamson, together with Justices Bablitch and
Bradley, dissented in part. They argued that the parties and the lower
courts did not have the opportunity to consider the state school finance
system under the constitutional standard set forth in the majority
opinion. They noted the concern that the state school finance system may
be failing to provide each of the property-poor districts with necessary
resources to provide all students with the opportunity for a sound basic
education. Also, they were concerned that the state school finance
system may be providing inadequate resources to those districts with
disproportionately large numbers of high-need students. The parties
should have a chance to present evidence and argument regarding the
constitutional standards set forth in the majority opinion.
Justices Prosser and Sykes, while agreeing that the state school
finance system is not unconstitutional, could not agree with the
majority's definition of an expansive new state constitutional right to
an equal opportunity for a sound basic education defined as an education
that will equip students for their roles as citizens and enable them to
succeed economically and personally. Any definition of education or
standard for educational adequacy is inherently a political and policy
question, not a judicable question.
Constitutional Law - Statutes of Repose
![Daniel W. Hildebrand](/SiteCollectionImages/WisconsinLawyer/2001/06/hildebrand.jpg) |
Daniel W. Hildebrand is a member of DeWitt, Ross
& Stevens S.C., Madison. He is a former president of the Dane County
Bar Association and of the State Bar of Wisconsin. |
|
In Aicher v.
Wisconsin Patients Compensation Fund2 the court
upheld the constitutionality of sections 893.55(1)(b) and 893.56 of the
Wisconsin Statutes. Section 893.55(1)(b) establishes the statute of
limitations for medical malpractice actions of one year from the date of
discovery and also operates as a statute of repose, tolling at five
years from the date of the act or omission. Section 893.56, another
statute of repose, extends the time for minors to initiate medical
malpractice claims to the tenth birthday. The court overruled Estate of Makos v. Wisconsin Health
Care Fund.3
Aicher was born with a defective right eye, known as a "poor red
reflex." Had the condition been treated within six months of her birth,
the problem would have been correctable. However, as a result of failure
to treat, Aicher is now blind in her right eye. Under the statutes,
Aicher would have had to file the malpractice action by her tenth
birthday, about nine months before she claims to have discovered her
condition. Relying upon Makos, the circuit court held the statutes
unconstitutional because they violated the "right to remedy" clause of
article I, § 9 of the Wisconsin Constitution, a provision that
guarantees that every person shall be afforded a remedy for wrongs
committed against his or her person, property, or character.
A party has the burden of proving statutes unconstitutional beyond a
reasonable doubt. Statutes of limitation are based upon policy
considerations best suited to the Legislature. Statutes of repose are
different. A statute of repose limits the time within which an action
may be brought based on the date of the act or omission and bears no
relation to the accrual of a cause of action. Thus, a statute of repose
can toll before an injury is discovered or even before an injury has
occurred. Both types of statutes represent legislative policy decisions
that dictate when the courthouse doors close for particular
litigants.
The Legislature has provided that there is a right for medical
malpractice claims only when the plaintiff seeks recovery either within
three years of the injury or within one year of discovery, provided that
five years have not passed since the act or omission. These provisions
reflect the Legislature's view that prompt litigation assures fairness
to the parties. The physician allegedly responsible is now deceased and
is no longer able to defend himself. The court also concluded that the
statutes did not violate the due process or equal protection clauses of
the state and federal constitutions.
Justices Crooks and Bablitch dissented. The result of the decision is
to deny children the opportunity to have their day in court. The
statutes at issue are unconstitutional as applied to the facts of this
case because the time for filing an action expired before the child
discovered her injury. This closes the doors of the courthouse to young
children and denies them the right to a remedy in violation of article
I, § 9 of the Wisconsin Constitution.
The "Sham-affidavit" Rule
In Yahnke v.
Carson4 the court adopted the so-called "sham
affidavit" rule for application to summary judgment cases, citing
several federal cases.5 The sham affidavit rule
requires a trial court to disregard an affidavit directly contradicting
prior deposition testimony. Contradictory affidavits tend to create
sham, rather than genuine, issues. In announcing the rule, the court
held that an affidavit that directly contradicts prior deposition
testimony generally is insufficient to create a genuine issue of fact
for trial, unless the contradiction is explained adequately. To
determine whether the witness's explanation is adequate, the court
should examine whether the deposition afforded the opportunity for
direct and cross-examination, whether the witness had access to
pertinent evidence or information prior to or at the time of the
deposition, whether the affidavit was based upon newly discovered
evidence not known or available at the time of the deposition, and
whether the earlier deposition testimony reflects confusion, lack of
recollection, or other legitimate lack of clarity that the affidavit
justifiably attempts to explain.
Justice Bablitch, with Chief Justice Abrahamson and Justice Bradley,
dissented. They argued that the rule is unwise because it puts the court
into the position of weighing the evidence and choosing between
competing reasonable inferences, a task heretofore prohibited on summary
judgment. The rule is not needed because there are other remedies. If
affidavits are made in bad faith, the party submitting those affidavits
could be ordered to pay the other party the costs and attorney fees,
which the filing of the affidavits caused the other party to incur. An
attorney who files an affidavit for an improper purpose faces sanctions.
If the case proceeds to trial, the witness may be impeached with prior
inconsistent statements.
Family Code - Maintenance Based in Part Upon Contributions
Prior to Marriage
In Re
Marriage of Meyer v. Meyer6 the court held
that it is appropriate to consider a spouse's premarital contributions
to the education of a spouse in determining maintenance. The case arose
from a relationship that spanned 12 years, during which time respondent
received his undergraduate and medical degrees, completed his residency,
and was at the threshold of beginning his career as a physician. The
parties began dating in 1985, began living together in 1986 while
respondent was pursuing his undergraduate education, and married in
1993. During the time they lived together, petitioner continued to work
while respondent attended school. In 1997, petitioner filed for
divorce.
One of the factors that a circuit court can consider when making a
maintenance award is the contribution by one party to the education,
training, or increased earning power of the other.7
There is nothing in the statute that limits the contributions to those
that arose during the marital period. Also, the Legislature directed
that the Family Code be liberally construed.
Justices Sykes, Wilcox, and Crooks dissented. The Family Code does
not apply to claims of parties who are dissolving nonmarital
cohabitation relationships. There is nothing in the maintenance statutes
that can be reasonably read to authorize circuit courts to award
maintenance for periods of premarital cohabitation. The court has
expanded the statute beyond the intent of the Legislature because it has
in effect extended the "marital period" beyond the dates that the
marriage was actually in effect. The absence of language of expansion is
more significant than the absence of language of limitation.
Furthermore, the Family Code pertains only to the institutions of
marriage and the family, neither of which is defined in such a way as to
include either nonmarital or premarital cohabitation.
Negligence - Inmate Confined in a Health Care
Center
In Jankee v.
Clark County,8 Jankee, a mentally disabled
patient who was committed to Clark County's care facility, was seriously
injured during an attempted escape. He sued Clark County for negligently
failing to adequately supervise him while he was in the county's custody
and control. He also pursued negligence claims against the building
contractor, the subcontractor who installed the windows, and the
manufacturer of the windows for failure to design and manufacture a
reasonably safe product. The court of appeals affirmed summary judgment
granted to the contractor defendants holding that the defense of
government contract immunity applied. The court of appeals, however,
reversed summary judgment on the claim against Clark County, concluding
that if Jankee were incapable of controlling or appreciating his
conduct, he could not be held contributorily negligent.
The first issue is whether a mentally disabled plaintiff who is
involuntarily committed to a mental health facility can be held
contributorily negligent for injuries sustained during an escape
attempt. The court held that Jankee's claims were barred because his
negligence exceeded the negligence of each defendant. Jankee's
hospitalization resulted from his failure to comply with a medication
program that controlled his mental disability. A reasonable person would
understand that he was required to maintain his prescribed medication in
order to avoid potential ramifications of his mental disability. Also,
Jankee was bound to exercise the duty of ordinary care when he tried to
escape. Wisconsin holds mentally disabled defendants to the reasonable
person standard of care. The rare exception to this standard applies
only when the person has no prior notice or forewarning of the potential
for becoming disabled and the disability renders the person incapable of
conforming to the standard of ordinary care.
Clark County's custody and control of Jankee did not create a duty
that overrode Jankee's duty to exercise ordinary care for his own
safety. Clark County established a special relationship resulting in a
duty to aid or protect Jankee. Clark County voluntarily took the custody
of Jankee under circumstances such as to deprive him of his normal
opportunities for protection. Hospital and prison settings alter
expectations of responsibility for safety and reasonably deprive people
of their normal opportunities for protection. However, Clark County
could not have foreseen Jankee's escape attempt. A hospital is not the
insurer of its patients against injury inflicted by themselves, but is
only required to use such means to restrain and guard its patients as
would seem reasonably sufficient to prevent foreseeable harm. No cause
of action arises unless the hospital has notice of an individual
patient's disposition to inflict self-injury. Jankee had no history of
escape attempts, and had expressed no thoughts of elopement during his
confinement.
Chief Justice Abrahamson and Justice Bradley dissented. They agreed
that Clark County assumed the duty to provide reasonable care to shield
the plaintiff - a protected person - from foreseeable harm while he was
at the facility. However, the majority reached its decision by weighing
conflicting evidence and inferences. Given Jankee's extensive history of
mental illness, including violent and irrational tendencies known to the
county, it is possible that Jankee could prove at trial that the county
was negligent in failing to protect Jankee from acting out his
irrational impulses.
Endnotes
1 Vincent v. Voight, 2000 WI 93, 236
Wis. 2d 588, 614 N.W.2d 388.
2 Aicher v. Wis. Patients Compensation
Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849,
http://www.wisbar.org/Wis3/98-2955.htm.
3 Estate of Makos v. Wis. Health Care
Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997).
4 Yahnke v. Carson, 2000 WI 74, 236 Wis.
2d 257, 613 N.W.2d 102.
5 See Babrocky v. Jewel
Food Co., 773 F.2d 857, 861-62 (7th Cir. 1985); Russell v. Acme
Evans Co., 51 F.3d 64, 67 (7th Cir. 1995); Adelman - Tremblay
v. Jewel Cos. Inc., 859 F.2d 517, 521 (7th Cir. 1988).
6 In Re Marriage of Meyer v. Meyer, 2000
WI 132, 239 Wis. 2d 731, 620 N.W.2d 382.
7 Wis. Stat. § 767.26(9).
8 Jankee v. Clark County, 2000 WI 64,
235 Wis. 2d 700, 612 N.W.2d 297.
Wisconsin Lawyer