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
Criminal
Law
Child Abuse - Confidentiality - Reporters
State v. Polashek,
2001 WI App 130 (filed 30 May 2001) (ordered published 27 June 2001)
The state charged a school superintendent with violating Wis. Stat.
section 48.981(7)(f) when he allegedly disclosed the identity of two
school employees who had reported possible child abuse involving the
parents. Section 48.981 mandates that certain persons report suspected
child abuse but makes the report confidential. Breaches of
confidentiality are criminal offenses. This is an interlocutory appeal
brought by the state because the trial court's proffered jury
instruction did not correctly reflect the law.
The court of appeals, in an opinion written by Chief Judge Cane,
agreed and reversed. The state challenged the proposed instruction on
two grounds: 1) it required the state to prove that the parents to whom
defendant wrote the letter did not previously know the employees'
identities; and 2) it required the state to prove intent. The court
agreed with both arguments. After examining the statute's legislative
history, the court held that the statute protects the reporters'
identities as well as the report itself. Thus, the state need not prove
that the "disclosed information was a surprise or unknown to the
recipient of the information" (¶ 24). The recipients' previous
knowledge of the information does not provide grounds for disclosure or
absolve one from liability. Finally, the court held that section
48.981(7) is a strict liability statute; thus, intent is not an
element.
Criminal Procedure
Plea Negotiations - Material Breach by the State -
Remedies
State v. Howard,
2001 WI App 137 (filed 15 May 2001) (ordered published 27 June 2001)
The defendant and the state entered into a plea agreement pursuant to
which the defendant entered several no contest pleas and was found
guilty. At sentencing the prosecutor violated the plea agreement when he
recommended that a sentence on one of several charges be served
consecutively to other sentences imposed in the case instead of
concurrently with them.
The first issue confronted by the court was whether this violation of
the plea agreement was merely "technical" or instead "substantial and
material." In a decision authored by Chief Judge Cane, the court of
appeals concluded that "where a plea agreement undis-putedly indicates
that a recommendation is to be for concurrent sentences, an undisputed
recommendation of consecutive sentences that is not corrected at the
sentencing hearing constitutes a material and substantial breach of the
plea agreement as a matter of law" (¶ 19).
In this case the defendant's attorney did not object to the state's
breach of the plea agreement at the sentencing hearing, thereby waiving
the right to directly challenge the breach of the plea. See Grant v.
State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976). Therefore, the
defendant is entitled to a remedy for the breach only if he was provided
ineffective assistance of counsel. To prevail on an ineffectiveness of
counsel claim, the defense must demonstrate that counsel's performance
was deficient and that the deficient performance prejudiced the
defendant. In State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379
(1997), the Wisconsin Supreme Court concluded that when a prosecutor
materially and substantially breaches a plea agreement, the breach
always results in prejudice to the defendant. Accordingly, if the
defendant is able to establish that his attorney's performance was
deficient in this case, prejudice will be presumed. The court of appeals
remanded the case to the circuit court to conduct a hearing on the issue
of defense counsel's alleged deficient performance.
If the trial court determines that defense counsel acted deficiently,
it will need to consider the appropriate remedy. If the court determines
that resentencing is appropriate, the court should order resentencing by
a different judge. See ¶ 36. "The choice of remedy is not up to the
defendant; it rests with the court. However, if the defendant seeks only
specific performance by resentencing, then the court can simply order
resentencing by a different judge. When selecting a remedy, the
sentencing court should bear in mind that specific performance, the less
extreme remedy, is preferred" (¶ 37).
Probation Revocation - Failure to Admit Sexual Misconduct
Associated With Underlying Conviction
State ex rel. Tate v.
Schwarz, 2001 WI App 131 (filed 2 May 2001) (ordered published
27 June 2001)
Despite his denial of guilt, the defendant was convicted of sexually
assaulting his former stepdaughter. The circuit court imposed and stayed
a lengthy sentence and placed the defendant on probation. One of the
conditions of probation was participation in sex offender treatment.
While the defendant was pursuing an appeal of his conviction, his
probation was revoked because he refused to admit to child sexual
assault as part of his sex offender treatment.
The defendant brought a certiorari action challenging the probation
revocation. The circuit court denied his petition. In a decision
authored by Judge Anderson, the court of appeals affirmed.
The issue before the court was whether a probationer with a pending
direct appeal can be revoked for failing to admit the details of the
crime for which he or she was convicted and placed on probation. The
court held that a probationer with an active direct appeal on the merits
cannot be revoked for refusing to admit to the crime. The court noted
that this decision would not work a hardship because, at most, treatment
would be delayed until the direct appeal is disposed of and, if the term
of probation is expiring, it could be extended until treatment is
completed.
Procedurally, a person in the defendant's position should move the
circuit court to amend the conditions of probation before there is a
revocation hearing. "A writ of certiorari [such as the one which is the
subject of this appeal], coming after a probation revocation hearing,
will result in waiver of a challenge to probation conditions" (¶
14). Accordingly, on the narrow ground of waiver, the court of appeals
affirmed.
Discovery - Statements of the Defendant
State v. DeLao,
2001 WI App 132 (filed 2 May 2001) (ordered published 27 June 2001)
The defendant filed a discovery demand, specifically demanding that
the state provide her with written summaries of any "oral, written or
recorded statements" she made, pursuant to Wis. Stat. section
971.23(1)(b). At trial the defense attorney announced to the jury during
opening statements that the defendant would take the stand and testify
on her own behalf. On the second day of trial, after the state had
rested, the district attorney advised the trial court that the state had
in its possession statements made by the defendant, which had not been
disclosed to the defense.
The prosecutor further indicated an intention to use these statements
to impeach the defendant if she testified. The prosecutor explained to
the court that the state's primary investigator in the shooting incident
that was being tried had just that day made the prosecutor aware of the
defendant's statements, although the investigator was aware of those
statements prior to trial. The trial court ruled that, if the defendant
testified, the state could use the statements in question for
impeachment purposes and, in fact, that occurred. In a decision authored
by Judge Snyder, the court of appeals reversed.
The state argued that because the district attorney was unaware of
the defendant's statements, they were not ones that the district
attorney planned to use in the course of trial and thus were not
discoverable. The appellate court declined to adopt the state's narrow
characterization of the discovery statute. "Wisconsin courts have held
that the prosecutorial unit, which includes both the district attorney's
and law enforcement offices, must be viewed as one unit for the purposes
of the discovery process" (¶ 18). The prosecutor's discovery
obligation "extends to material and information in the possession or
control of members of the prosecution's staff and in the possession 'of
any others who have participated in the investigation or evaluation of
the case and who either regularly report or with reference to the
particular case have reported' to [the prosecutor's] office" (¶
19)(citations omitted). Thus, a discovery violation occurred when the
state failed to provide the defense with the statements in the
possession of the chief investigator.
Section 973.23(7m) requires the trial court to exclude evidence that
is not produced pursuant to a discovery demand unless "good cause is
shown for failure to comply." The appellate court concluded that no good
cause existed for the withholding of the evidence in this case and that
the only appropriate remedy was its exclusion. The trial court erred in
allowing the state to use the defendant's statements for impeachment
purposes and the case was remanded for a new trial.
Insurance
UIM Coverage - Noneconomic Damages - Canadian No-fault
Laws
State Farm Mut. Automobile
Ins. Co. v. Gillette, 2001 WI App 123 (filed 24 May 2001)
(ordered published 27 June 2001)
A Wisconsin resident, Ostlund, was injured while driving his mother's
truck in Manitoba, Canada, when a Canadian driver slammed into the back
of his lawfully stopped vehicle. The truck was covered by a State Farm
policy that carried UM, but not UIM, protection. Ostlund himself,
however, was insured by two other State Farm policies that provided UM
and UIM coverage. Both Ostlund and his passenger submitted claims to the
Manitoba Public Insurance Corporation (MPIC), which administers that
province's no-fault insurance plan. The trial court ruled that Ostlund
and his passenger were not entitled to UM or UIM coverage by State
Farm.
The court of appeals, in an opinion written by Judge Hue, reversed in
part and affirmed in part. The crux of the opinion grapples with the
application of Canadian no-fault coverage to Wisconsin law concerning UM
and UIM coverage. First, the court held that because of the MPIC
coverage the tortfeasor's vehicle was "insured" within the meaning of
the State Farm policies; put differently, there was not uninsured
motorist (UM) coverage. Second, in comparing the MPIC coverage with the
State Farm policies, and using "fault principles as the basis for
recovery," the underinsured motorist (UIM) coverage did apply.
The issue was, however, complicated because Manitoba law provides
that an injured party may not collect for pain and suffering or other
noneconomic damages (¶ 27). Nonetheless, the court held that "there
are only two requirements under the contract for the [UIM] coverage to
be triggered: 1) causal negligence on the part of that underinsured
motorist, and 2) damages resulting from the accident that the at-fault
motorist's insurance does not cover" (¶ 29). State Farm conceded
both elements. Thus, UIM coverage applies "wholly independent of any
restrictions imposed by the applicable law in the state or territory
where the accident occurred which limits or restricts an insured's
ability to recover damages from the tortfeasor" (¶ 30).
Lemon Law
"Comparable New" Vehicle - ADR - Remedies
Kiss v. GMC, 2001
WI App 122 (filed 9 May 2001) (ordered published 27 June 2001)
Plaintiff Kiss experienced problems with a tow truck that he had
purchased that came equipped with a Vulcan 882 towing package.
Initially, he filed a pro se complaint and agreed to participate in
informal dispute resolution procedures. Kiss settled for GM's promise to
replace the vehicle within 30 days of his acceptance of the settlement
"tribunal's" decision. Later GM acknowledged that it could not replace
the vehicle within the 30-day framework. Kiss rejected GM's offer to
transfer the "old tow unit" to a new cab and chassis. Despite further
negotiations, Kiss remained unsatisfied with GM's offers and filed this
action under the Lemon Law. The circuit court granted GM's motion to
dismiss because it had made a "replacement vehicle" available within the
meaning of the Lemon Law.
The court of appeals, in an opinion written by Judge Brown, reversed.
Reaching an issue of first impression, the court rejected GM's
contention that it could transfer the "current tow package" to a new cab
and chassis. Such an accommodation failed to return Kiss to the same
position he was in at the point of sale because it left Kiss with "an
old tow package with an expiring warranty." "Simply put, transferring
nondefective automobile accessories into replacement vehicles is not
contemplated within the Lemon Law statute or consistent with its public
policy of 'returning unfortunate consumers back to where they thought
they were when they first purchased that new automobile'" (¶
17).
Second, the court addressed GM's contention that Kiss's acceptance of
the dispute settlement award barred a Lemon Law action and limited Kiss
to an action to enforce the award under Wis. Stat. chapter 788. GM's
argument essentially insisted that Kiss had "waived" his Lemon Law
remedies, a position flatly rejected by the Lemon Law itself. See Wis.
Stat. § 218.015(6). Nothing in the Lemon Law or the applicable
regulations binds a consumer to surrender other Lemon Law remedies
(¶ 29). In short, the procedures bound the manufacturer but not the
consumer.
Municipal Law
Notice of Claim Statute - Six-month Statute of Limitations
Upheld
Griffin v. Milwaukee
Transport Services Inc., 2001 WI App 125 (filed 15 May 2001)
(ordered published 27 June 2001)
This case concerns Wisconsin's notice of claim statute. See Wis.
Stat. § 893.80. More specifically, it deals with the statute of
limitation after a governmental body has disallowed a claim submitted to
it. The statute sets forth two different statutes of limitation: one for
claimants who have received a notice of disallowance from the government
and another for claimants who have not. In the former situation there is
a six-month statute of limitation; for the latter there is a three-year
time period within which to file suit.
The issue before the courts in this case was the constitutionality of
the six-month limitation. The circuit court concluded that the shorter
limitation period for those who receive notice of disallowance is
unconstitutional on equal protection grounds.
In an opinion authored by Judge Curley, the court of appeals
reversed. Applying the rational basis test to the six-month limitation
period, the court concluded that the statute is constitutional. By
incorporating different time frames into the statute, the Legislature
intended to promote the preservation of public funds and to expedite
certain actions brought against the government. Legitimate claims can be
resolved without the necessity of a formal action. Claims that are
baseless, or where the government believes it bears no liability or no
damages exist, must be brought within six months if the governmental
body sends a formal notice both disallowing the claim and advising the
claimant of the shortened period for bringing suit. "This procedure
forces a speedy hearing on these claims while they are fresh and the
witnesses are readily available. The rationale permitting other
claimants three years in which to bring suit is simple. Although the
remaining claimants are given additional time to bring suit, this scheme
also benefits the government by affording it additional time to
investigate these claims, settle them, or possibly fund the claim. Thus,
there are rational bases for the disparity" (¶ 20).
Torts
Firefighters' Rule - Public Works Supervisors
Mullen v. Cedar River
Lumber Co., 2001 WI App 142 (filed 22 May 2001) (ordered
published 27 June 2001)
The plaintiff worked as the city's superintendent of public works.
When one of the defendant's trucks was involved in a traffic accident,
the plaintiff went to the accident site in his official capacity and was
injured when he slipped on diesel fuel that had leaked onto the roadway.
Plaintiff sued the trucking company alleging that its driver's
negligence had caused his injury. The trial court dismissed the
complaint based on the "firefighter's rule."
The court of appeals, in an opinion written by Chief Judge Cane,
reversed. Case law categorically precludes firefighters and, by parity
of reasoning, EMTs, from recovering damages for injuries sustained while
performing their duties. On public policy grounds and the record in this
case, the court declined to extend the rule to the category of
"superintendents of public works" (for example, the record demonstrated
that fuel spills constituted only a "small part" of plaintiff's job,
¶ 15). Firefighters and EMTs are "professional rescuer[s]" who are
specially trained and employed to operate in emergency situations
(¶ 16).
Intoxicated Guests - Assumed Duty - No Immunity
Stephenson v. Universal
Metric Inc., 2001 WI App 128 (filed 15 May 2001) (ordered
published 27 June 2001)
Defendant Kreuser attended a December "meeting" at a country club
sponsored by his employer, UMI, for purposes of fostering "good will"
and bolstering employee morale. One employee, Devine, became extremely
intoxicated. A bartender testified that Kreuser promised her that he
would drive Devine home, a promise which Kreuser denied making. Without
dispute, Devine drove away from the club, later crossed the center line,
and killed the plaintiff's spouse, and himself, in a car accident. The
circuit court dismissed UMI and its insurer based on their immunity
under Wis. Stat. section 125.035(2) (1997-98), but concluded that
Kreuser was not immune.
The court of appeals, in an opinion written by Judge Schudson,
affirmed the ruling against Kreuser. Construing Gritzner v. Michael
R., 2000 WI 68, it held that Restatement (Second) of Torts §
324A (1965) applied to "Kreuser's liability to third persons for his
alleged negligent failure to perform the undertaking he promised to
render" (¶ 9). Moreover, "nothing" in section 125.035(2) immunized
Kreuser's conduct, although the court noted the "potential irony" that a
designated driver could be held liable, but not irresponsible bartenders
or drinking companions (¶ 12).
Worker's Compensation
"Private Errand" Doctrine - "Premises" of
Employer
Begel v. Wisconsin Labor
and Industry Review Comm'n, 2001 WI App 134 (filed 3 May 2001)
(ordered published 27 June 2001)
The plaintiff worked as a research assistant for a university
professor. He had to meet periodically with the professor. Some of these
meetings occurred in a construction trailer where the professor and his
family were living while they were building a new home. After one of
these meetings at the construction site, the plaintiff volunteered to
help his professor attach sheets of paneling to floor joists. After 20
minutes of work it began to rain and the professor asked the plaintiff
to lift one end of a joist so that the exposed portion of the floor
could be covered with a tarp. During this maneuver, the plaintiff fell 9
½ feet into a hole in the floor, suffering a spinal cord injury
that rendered him quadriplegic.
On these facts the Labor and Industry Review Commission (LIRC) denied
worker's compensation to the plaintiff, concluding that his injury was
not compensable under the Worker's Compensation Act. The circuit court
reversed LIRC and the court of appeals, in a decision authored by Judge
Roggensack, affirmed the circuit court.
The plaintiff asserted that moving the joist was a service growing
out of and incidental to his employment under the "private errand"
doctrine. Under this doctrine, if a person in authority over the
employee asks the employee to perform a service for the personal benefit
of the employer or the employee's superior and the employee is injured
during the performance of the task, his injury is one that grew out of
and was incidental to his employment unless the request is "clearly
unauthorized." See ¶ 11.
The court of appeals concluded that, under the private errand
doctrine, the plaintiff was performing services growing out of and
incidental to his employment at the time of his injury. The plaintiff's
employment required him to travel to the construction site and therefore
that site was the "premises" of the employer. He had come to the site
because his work required him to do so and the service rendered
benefited his supervisor. Given the relationship between the plaintiff
and the professor, it would have been difficult for the plaintiff to
refuse the professor's request for help. Finally, the request that the
plaintiff help the professor move the joist was not so clearly
unauthorized that the plaintiff's response could not be said to grow out
of or be incidental to his employment.
Wisconsin Lawyer
