Court of Appeals Digest
This column summarizes selected published
opinions of the Wisconsin 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.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Civil Procedure
Discovery - Hospital Records - Privilege
Braverman v. Columbia
Hospital Inc., 2001 WI App 106 (filed 11 April 2001) (ordered
published 30 May 2001)
During the discovery phase of this medical malpractice case, the
defendant hospital refused to provide various information on grounds of
a peer-review privilege in Wis. Stat. section 146.38. The court of
appeals, in an opinion written by Judge Nettesheim, affirmed in part and
reversed in part.
The first category of information concerned "statistical data"
reflecting the rates of infection for postoperative patients since 1990.
The court held that such data is not privileged peer review material
because it falls within the exception set forth in section 146.38 (3)(d)
for reports in "statistical form." The hospital unsuccessfully argued
that the statute was ambiguous and that it was "absurd" to conclude that
the legislature mandated disclosure of such material. The court noted
that the hospi-tal's remedy lies with the legislature.
The second item concerned a report by the Wisconsin Department of
Health and Family Services on the hospital's "infection quality
assurance," which the court held was not subject to disclosure. Although
the report was that of a state agency, the privilege provisions of
section 146.38 controlled its disclosure (¶ 30). That statute's
broad mandate that "no person" involved in the hospital review or
evaluation may disclose any information acquired in connection with the
review effectively cloaked the public agency's report from
discovery.
Finally, the trial court did not err by failing to conduct an in
camera review of the requested material before ruling that it was not
discoverable. If a discovery request is facially sufficient, the
opponent may invoke the privilege on that basis alone. Requiring in
camera reviews would needlessly "shift the initial burden to the trial
court to sift and winnow through the material sought (¶ 37).
Creditor / Debtor Law
Judgment Debtor - Spouses - Supplementary
Examination
Courtyard Condominium
Assoc. Inc. v. Draper, 2001 WI App 115 (filed 18 April 2001)
(ordered published 30 May 2001)
The plaintiff, a condo association, obtained a $52,000 judgment
against Barbara D., individually. During a supplementary examination,
Barbara professed ignorance about marital property she held with her
husband, Lewis. When the association requested an order requiring Lewis
to submit to a supplementary examination pursuant to Wis. Stat. section
816.03(1)(b), the circuit court agreed with Lewis that third parties
could not be examined under the statute.
The court of appeals, in an opinion written by Judge Anderson,
reversed. Read together, Wis. Stat. section 816.03(1) and section 816.06
"unambiguously require the judgment debtor to submit to a supplementary
examination to determine if there is property available to satisfy the
judgment," but language in section 816.06 created ambiguity about
whether a third person also could be so examined. The ambiguity required
the court to "combine" two different statutory schemes: "(1) the right
of the judgment creditor to inquire about the amount and location of
property that could satisfy the judgment and (2) the right of the
judgment creditor to proceed against all marital property and the
nonjudgment debtor spouse to satisfy the judgment" (¶ 12). Thus,
the court held "that a judgment creditor may examine the spouse of a
judgment debtor under Wis. Stat. § 816.03" (¶ 15). To hold
otherwise would bar a judgment creditor from satisfying a judgment from
marital property where the debtor spouse pleads ignorance, as in this
case, a result that would be "unreasonable and absurd."
Criminal Procedure
Searches - Consent
State v. Munroe,
2001 WI App 104 (filed 20 March 2001) (ordered published 30 May
2001)
The court of appeals, in an opinion written by Judge Fine, reversed
defendant's conviction for possession of marijuana because the trial
court should have granted his motion to suppress the evidence. The
search occurred in a motel room. Although officers actually were at the
motel to look for drugs, guns, and prostitutes, they entered defendant's
motel room ostensibly to check his identification. Upon request, the
defendant produced his identification, and police determined that he was
not in violation of a local ordinance that prohibits persons from
registering under assumed names. At this point the officers' "license"
to be in the room expired, and they had no authority to use their
continued presence to conduct a general search. Although the defendant
eventually acquiesced to a search after continued questions and renewed
requests following his initial refusal, such "consent" was not
voluntary. The court emphasized that "the officers' requests to search
were themselves unlawful assertions of authority" (¶ 12). The case
law governing attenuation also supported the court's conclusion.
Judge Schudson concurred.
Searches - Community Caretaking Function
State v. Ferguson,
2001 WI App 102 (filed 3 April 2001) (ordered published 30 May 2001)
The court of appeals, in an opinion written by Judge Curley, affirmed
the defendant's conviction for possession of marijuana and the denial of
his motion to suppress evidence. Stressing "the unique facts presented
here," the court found that police officers who searched his closet were
legitimately serving their role as community caretakers. When they
lawfully entered the apartment, police observed abundant evidence of
underage drinking, including one "highly intoxicated young man" lying
sick on the floor. Officers "feared" that other underage drinkers might
be in distress in defend-ant's locked bedroom. After 30 minutes of
yelling and pounding on the door, police "jimmied" the lock and entered
the bed-room where they observed "people, including [defendant]
Ferguson, in the bed." They also opened a closet to determine if someone
else was hiding in there, and instead discovered the marijuana.
In upholding the search of the closet, the court stressed that police
were not investigating a "crime" because underage drinking, while
subject to sanctions, is not a criminal offense. On this record the
court was satisfied that the police officers' "only purpose in opening
the closet door was to confirm that no highly intoxicated person was
hiding there" (¶ 14). Authority for the search was found in cases
exploring the "emergency search" doctrine, where the officers'
motivation is a key element.
Judge Fine concurred and wrote separately only to contest the
precedent relied upon by Judge Schudson in his dissent.
Evidence - Other Acts - Cross-examination -
Hearsay
State v. Meehan,
2001 WI App 119 (filed 17 April 2001) (ordered published 30 May
2001)
The court of appeals, in an opinion written by Judge Wedemeyer,
reversed the defendant's conviction for second-degree sexual assault. In
1996 the defendant grabbed the penis of a 14-year-old boy at a health
club. At his sexual assault trial, the prosecution offered evidence that
in 1992 the defendant was convicted of sexually assaulting a 23-year-old
man when he rubbed the man's penis while he slept. The court concluded
that the two crimes were not sufficiently similar under the case law. In
particular, the significant age discrepancy between the two victims -
age 14 and age 23 - distinguished this case from others where all
victims were near the same age, as did the marked dissimilarities in the
circumstances of the two offenses (clothing, manner of touch,
place).
Second, the state conceded that the prosecutor should not have
cross-examined an alibi witness about the facts of the 1992 conviction,
but argued that the error was harmless. Rejecting the harmless error
analysis, the court observed that the 1992 conviction clearly was used
to attack the defendant's character, as forbidden by Wis. Stat. section
904.04(1).
A third reversible error occurred when the state "dramatically" read
to the jury prior testimony by the victim, who also testified at trial.
"In essence, the jury heard [the victim's] testimony multiple times:
once through [his] live testimony, and twice more, through the dramatic
reading of the prior testimony."
Out-of-state Prison Transfers - Motion to Modify Sentence
Based on Such Transfers
State v. Parker,
2001 WI App 111 (filed 18 April 2001) (ordered published 30 May
2001)
Pursuant to plea negotiations, the prosecutor amended the charge
against the defendant from attempted first-degree intentional homicide
to first-degree reckless injury, and the defendant entered a no-contest
plea to the amended charge. He received a lengthy prison sentence and
has been transferred to an out-of-state prison. On appeal he contended
that his transfer to the out-of-state prison was a breach of the plea
agreement or, alternatively, a "new factor" meriting sentence
modification.
In a decision authored by Judge Brown, the court of appeals rejected
both of these arguments. There was no proof whatsoever that the
prosecutor or the court promised the defendant that he would serve his
prison sentence in Wisconsin, nor could a prosecutor or court bind the
Department of Corrections by such a promise. Accordingly, the defendant
failed to prove by clear and convincing evidence that a material and
substantial breach of the plea agreement occurred. The court also
rejected the defendant's claim that his transfer to an out-of-state
prison constitutes a "new factor" warranting sentence modification.
Finally, the court considered whether a defendant's knowledge of the
out-of-state prison transfer law is a prerequisite to a knowing and
voluntary plea. The court concluded that transfer to an out-of-state
facility, which may or may not occur at the discretion of the Department
of Corrections, is a collateral consequence of conviction, and that the
defendant needed no knowledge of the prison transfer law in order to
make his plea knowing and voluntary.
Parole - Waiver of Minimum Service Requirements
State ex rel. Szymanski v.
Gamble, 2001 WI App 118 (filed 25 April 2001) (ordered
published 30 May 2001)
The defendant was convicted of multiple counts of second-degree
sexual assault and was sentenced to 42 years in prison. Six years later
the parole commission notified the sentencing judge that it intended to
waive the requirement that the defendant serve a minimum of 25 percent
of his sentence before becoming eligible for parole. The commission was
acting pursuant to Wis. Stat. section 304.06(1m), which authorizes such
waiver if the parole commission determines that extraordinary
circumstances warrant an early release and the sentencing court has been
notified and permitted to comment upon the proposed recommendation.
In this case the record does not reflect any response from the
sentencing judge and, in due course, the parole commission waived the
minimum service requirements and changed the defendant's parole
eligibility date. Since then he has been considered for parole
approximately eight times. Each time parole has been denied.
In this habeas corpus action, the defendant argued that because the
parole commission had found extraordinary circumstances warranting
waiver of the minimum service of sentence requirement, he was entitled
to release on parole. The trial court concluded that the parole
commission's determination rendered the defendant eligible for early
parole consideration but did not entitle him to immediate release on
parole.
In a decision authored by Judge Nettesheim, the court of appeals
agreed with the circuit court. The statute cited above simply permits
the parole commis-sion to waive the minimum service requirement if
certain conditions are met. While the grant of parole might logically
follow from a determination of extraordinary circumstances as described
in the statute, the law does not dictate that the inmate be immediately
released on parole.
Mental Responsibility Examinations - Self-incrimination and
Right to Counsel Issues
State v. Slagoski,
2001 WI App 112 (filed 4 April 2001) (ordered published 30 May 2001)
In response to charges of burglary and burglary while armed with a
dangerous weapon, the defendant entered pleas of not guilty and not
guilty by reason of mental disease or defect. The trial court ordered
competency and mental responsibility examinations. Two psychiatrists,
including one chosen by the defendant, performed the examinations. Both
concluded that he was legally sane at the time of the charged crime.
Additionally, the psychiatrist chosen by the defendant expressed a
belief that the defendant posed a "homicidal-suicidal risk" because of
his psychopathology.
The defendant thereafter changed his pleas to guilty and no contest
to the two charges. At sentencing the prosecutor incorporated the
findings of the two psychiatrists to argue the defendant's future
dangerousness. The trial court sentenced the defendant to a 25-year term
of incarceration followed by a l0-year term of probation, expressing a
belief that the doctors' reports showed that the defendant had certain
mental health issues that increased his risk of future
dangerousness.
Among the issues on appeal was the defendant's contention that use of
the pretrial psychiatric evaluations during sentencing violated his
Fifth Amendment right to be free from compelled self-incrimination and
his Sixth Amendment right to the assistance of counsel. Relying
primarily upon Estelle v. Smith, 451 U.S. 454 (1981), he argued that his
constitutional rights were violated when, before the pretrial
examinations, he was not advised that he had the right to remain silent
and that his statements and the reports themselves could later be used
against him during the sentencing proceedings.
In a decision authored by Judge Brown, the court of appeals affirmed,
finding no such Fifth or Sixth Amendment violations. The court indicated
that it was clear that the defendant waived his Fifth Amendment rights
when, through counsel, he initiated a psychiatric evaluation and placed
his mental condition into controversy by entering pleas of not guilty
and not guilty by reason of mental disease or defect. Furthermore, his
own attorney requested one of the psychiatrists who performed an
evaluation. Because the defendant commenced the process for pretrial
evaluations and submitted to the examinations, the court concluded that
he cannot now claim that use of those evaluations in sentencing
compelled him to testify against himself.
The main thrust of the defendant's argument was that he deserved
specific notice that his evaluations could be used to establish future
dangerousness at sentencing. The court of appeals found itself in
agreement with a line of cases that hold no such specific notice is
required under Estelle and its progeny.
The court further concluded that, because the prognosis of future
dangerousness was within the scope of examinations performed by the
psychiatrists, no Sixth Amendment violation occurred. Said the court,
"the defense was reasonably put on notice that the clinical impressions
of the doctors would be highly relevant to the issue of future
dangerousness, a legitimate sentencing consideration" (¶ 18).
Family Law
Divorce - Maintenance - Counting Pension Payments as Income
for Purposes of Fixing Maintenance
Wettsteadt v.
Wettsteadt, 2001 WI App 94 (filed 8 March 2001) (ordered
published 25 April 2001)
Diane and Gary Wettsteadt married in 1970 and divorced in 1998. Under
the terms of their divorce judgment, Gary was ordered to pay Diane
maintenance in the amount of $1,200 per month. In June 2000 Gary
successfully obtained a court order that reduced the amount of
maintenance he must pay to Diane by the amount of pension benefits she
will receive when Gary retires under a Qualified Domestic Relations
Order (QDRO) entered at the time of the divorce.
On appeal Diane argued that the trial court erred in reducing the
amount of Gary's maintenance obligation because her receipt of pension
benefits does not constitute a substantial change in circumstances and
because the trial court's order results in the impermissible
"double-counting" of the pension benefits as both an asset for property
division and as income for the maintenance determination.
In a decision authored by Judge Deininger, the court of appeals
affirmed. It concluded that the trial court did not erroneously exercise
its discretion in modifying the maintenance obligation in light of
Diane's receipt of pension benefits under the QDRO. A critical factor in
the court's decision was that the divorce judgment provided for an equal
division of the parties' marital estate but did not include the value of
Gary's pension in the division. Thus, Diane did not "give up" other
property in exchange for her interest in Gary's pension, and Gary did
not receive other property as an offset to Diane's future right to share
in his pension.
Turning to the issues in this case, the appellate court concluded
that the trial court did not err in determining that the significant
change in both parties' incomes occasioned by Gary's retirement
represents a substantial change in each of their financial
circumstances. The appellate court concurred with the circuit judge's
assessment that, when the original trial judge entered the order for
$1,200 per month in maintenance, he was aware that at some point Gary
would be retiring from his employment and that maintenance would have to
be adjusted accordingly. By equally dividing Gary's pension benefits
through a QDRO, the judge who presided at the divorce hearing was able
to ensure that each party would enjoy a comparable level of
post-retirement income.
Regarding Diane's double-counting claim, the court of appeals held as
follows: "When an employee-spouse's pension is divided by a QDRO, and no
value is assigned to either spouse's interest to be offset by other
property awarded in the property division, a family court is not
prohibited by the 'double-counting' rule from considering pension
distributions in determining maintenance" (¶ 20). In Pelot v.
Pelot, 116 Wis. 2d 339, 342 N.W.2d 64 (Ct. App. 1983), the court of
appeals concluded that if the present value of a pension is included in
the estate, then the pension payments themselves are not counted as
income for purposes of fixing maintenance when the divorce is granted.
In this case the court characterized its holding as simply the corollary
of the Pelot rule, that is, "if the present value of a pension is not
included in the marital estate for property division purposes, such as
when a pension is divided by a QDRO as in this case, then the pension
payments may be counted as income for purposes of fixing maintenance"
(¶ 20).
Motor Vehicle Law
OWI - Graduated Penalties - Determining Offender
Status
State v.
Skibinski, 2001 WI App 109 (filed 24 April 2001) (ordered
published 30 May 2001)
On Aug. 10, 1999, the defendant was arrested for driving while under
the influence of an intoxicant. This was his second OWI arrest within a
five-year period. Before this case was resolved, he was arrested again
on Sept. 15, 1999, for OWI. This was his third arrest within a 10-year
period. On Dec. 16, 1999, the defendant entered guilty pleas in both
cases.
The trial court ruled that the legislative scheme for OWI penalties
permitted it to sentence the defendant using third offender penalties
for both offenses. In a decision authored by Judge Wedemeyer, the court
of appeals disagreed.
The question before the appellate court was whether the trial court
could accept guilty pleas to a second and third offense OWI and then
apply the increased penalties for third offense OWI to both charges at
sentencing. Under the facts as described, the court concluded that the
Aug. 10, 1999, violation must be sentenced as a second offense, and the
Sept. 19, 1999, violation must be sentenced as a third offense.
Municipal Law
Landlocked Parcels of Land - Access Roads - Authority of
Towns
Tagatz v. Township of
Crystal Lake, 2001 WI App 80 (filed 29 March 2001) (ordered
published 25 April 2001)
The plaintiff owns a landlocked parcel of land in the Town of Crystal
Lake. After an unsuccessful attempt to purchase an easement from his
neighbors in order to build an access road to his property across his
neighbor's land, the plaintiff petitioned under Wis. Stat. section
80.13, asking the town to lay out an access road to his land. The town
supervisors held a hearing on the petition and denied it, concluding
that the public highway requested by the plaintiff was not in the public
interest.
In this action the plaintiff contended that the town did not have the
authority to deny his petition. He relied on section 80.13(3), which
provides in part: "the [town] supervisors shall meet at the appointed
time and place and shall then in their discretion proceed to lay out
such highway of not more than three nor less than two rods in width to
such real estate." (Emphasis added.) The plaintiff argued that the words
"in their discretion" in this statute apply to the width of the road and
to its location, but do not give the town discretion whether to lay out
such a road in the first place.
In a decision authored by Judge Mason (sitting by special assignment
pursuant to the Judicial Exchange Program), the court of appeals
concluded that the words "in their discretion" in the statute do not
apply merely to the width of the road or its location. Rather, the
statute gives town boards the right to exercise discretion as to whether
it should lay out a road at all. Said the court, "to preclude a town
board from exercising its discretion could require town taxpayers to pay
for roads to parcels even smaller or less buildable than this one"
(¶ 9).
Property
Condemnation - Acceptance and Retention of Condemnation
Award
TFJ Nominee Trust v.
Wisconsin Department of Transportation, 2001 WI App 116 (filed
24 April 2001) (ordered published 30 May 2001)
This case arose in connection with a condemnation of property by the
Wisconsin Department of Transportation (DOT) as part of an intersection
reconstruction project. DOT contended that the property owner is barred
from contesting DOT's right to condemn the property because the property
owner has retained the unnegotiated award check that DOT had sent to it.
DOT argued that because the property owner has not returned the check,
it has accepted and retained compensation as defined in Wis. Stat.
section 32.05(3)(h), which provides that "acceptance and retention" of
any compensation resulting from an award made prior to the commencement
of a court action to contest the right of condemnation shall be an
absolute bar to such an action.
In a decision authored by Chief Judge Cane, the court of appeals
concluded that the mere retention of the unnegotiated award check should
not bar a landowner's pursuit of a remedy under section 32.05(5). The
phrase "acceptance and retention of any compensation" requires that the
landowner negotiate the check and retain the check proceeds before the
owner can be barred from contesting the condemnation under the statute.
A landowner who holds rather than cashes an award check is not barred
from suit.
Sexual Discrimination
Country Club - Private Nonprofit Organizations
Barry v. Maple Bluff
Country Club Inc., 2001 WI App 108 (filed 5 April 2001)
(ordered published 30 May 2001)
Jane Barry, a member of the Maple Bluff Country Club (the Club),
alleged that the Club "engaged in sex discrimination by providing more
advantageous services and opportunities to men than to women club
members." The circuit court dismissed her complaint.
The court of appeals, in an opinion written by Judge Roggensack,
affirmed because "the Club is a private, nonprofit organization that
satisfies the requisite criteria of ch. 106 to fall outside the scope of
Wisconsin's public accommodation law" (¶ 1). More precisely, the
Club was a bona fide private organization that provided goods or
services to the three groups described in Wis. Stat. section
106.04(1m)(p)2: members, guests named by members, and guests named by
the organization. First, the court was satisfied that the Club was a
"private organization" as defined by the law. Prospective members are
carefully screened and selected. The Club's board controls its property
and activities. Second, the Club's activities were carefully limited to
the three statutory groups described above; "the statute does not
require that each guest be individually named;" rather, the "bylaws,
rules of the Club and resident privilege card identify those guests with
sufficient specificity to monitor their use and exclude the general
public while honoring the payments in kind for which the Club is
obligated under [its lease with the village]" (¶ 17).
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