Vol. 71, No. 9, September 1998
Supreme Court Digest
By Prof. Daniel D. Blinka & Prof.
Thomas J. Hammer
| Counties | Criminal Law | Criminal Procedure | Employment Law |
| Environmental Law | Evidence | Highways | Jury
Trials | Juvenile Law |
| Municipal Law | Torts | Worker's Compensation |
Counties
Liability for Injuries Caused by Insufficient
Highway Maintenance - County Immunity -
Wis. Stat. Section 81.15 - Definition of "Highway"
Morris v. Juneau County, No.
96-2507 (filed 30 June 1998)
Morris was injured when another vehicle traveling towards him hit a
rut on the shoulder of the road, lost control, and came back over the
center line striking his vehicle. Among others he sued Juneau County,
alleging that the collision occurred in part due to a highway defect
resulting from a want of maintenance or repair by the county. The county
answered that it was immune from the plaintiff's claims because the
defects were based on acts that the county performed in the exercise of
its discretionary powers. The county later filed a motion for summary
judgment, which was granted by the circuit court. The court of appeals
subsequently reversed.
In a unanimous decision authored by Justice Bablitch, the supreme
court affirmed the court of appeals. The first issue considered by the
court was whether governmental immunity under Wis. Stat. section
893.80(4) applies to a claim made under Wis. Stat. section 81.15. The
latter statute provides in pertinent part that the "claim for damages
shall be against the county" for "damages [that] happen by reason of the
insufficiency or want of repairs of a highway which any county ... is
bound to keep in repair." The supreme court concluded that if a
plaintiff states an actionable claim under section 81.15, the
governmental immunity provisions of section 893.80(4) do not apply.
The second issue addressed by the court was whether the term
"highway," as used in section 81.15, includes the shoulder adjacent to
the paved portion of the highway. The court concluded that in the
context of this statute the term "highway" includes the shoulder of the
highway.
Criminal Law
Bail Jumping - Multiplicitous Charging
State v. Anderson, No.
96-0087 and 06-0088 (filed 2 July 1998)
The defendant was convicted of two counts of bail jumping.
Prosecutors alleged that he violated two separate conditions of the same
bond; namely, that he avoid contact with a named person and that he not
consume alcohol. The court of appeals reversed the convictions because
they were multiplicitous.
The supreme court, in an opinion written by Justice Bablitch,
reversed the court of appeals. The court held that the violations of the
different conditions of bond were different in fact. Even if the
drinking and the illegal contact were not separate in time, the acts
were very different in nature. Each act required proof of a fact that
the other did not (that is, consuming alcohol versus contact with the
battery victim). Moreover, nothing rebutted the presumption that the
Legislature intended multiple punishments where different conditions of
the same bond are violated. The Legislature intended to protect
different interests by permitting bonds to embrace multiple
conditions.
Justice Geske dissented, joined by Chief Justice Abrahamson and
Justice Bradley, stating, "This is a case where good facts make bad
law."
Flag Desecration Statute - Overbreadth
State v. Janssen, No.
97-1316-CR (filed 25 June 1998)
The supreme court, in an opinion written by Justice Wilcox, affirmed
the court of appeals' decision that the criminal statute proscribing
"flag desecration" was unconstitutionally overbroad and that its flaws
could not be cured by limiting constructions. Wis. Stat.§
946.05.
Criminal Procedure
Alford Pleas - Sex Offenders - Revocation of Probation
for Failing to Admit Guilt in Treatment Program -
Appointment of Counsel for Section 974.06 Proceedings
State ex rel. Warren v.
Schwarz, No. 96-2441
State v. Warren, No. 97-0851
(filed 1 July 1998)
The defendant was charged with two counts of sexual assault of a
child. Ultimately, the defendant entered an Alford plea to one
of the counts and the state agreed to dismiss the remaining count. [The
Alford plea finds its roots in North Carolina v.
Alford, 400 U.S. 25 (1970), where the defendant affirmatively
protested his innocence, yet pled guilty to a lesser degree of murder to
avoid the death penalty he may otherwise have received.] The circuit
court imposed a five-year prison sentence, which it stayed in favor of
an eight-year term of probation. As a condition of that probation, the
court ordered that the defendant obey the rules of the probation
department and "that he attend any and all counseling that is ordered by
the department."
After being sentenced, the defendant served under probationary
supervision for approximately five years. During this time he
participated in sex offender treatment programs but he consistently and
repeatedly denied any culpability in his conviction for sexual assault
of a child. Ultimately, the department revoked his probation for failure
to admit his guilt during counseling, and it ordered the defendant to
begin serving the five-year sentence imposed by the trial court.
The first issue considered by the supreme court was whether the
defendant's right to due process was violated when the state, following
his entry of an Alford plea, later revoked his probation for
failing to successfully complete a sex offender treatment program that
required him to admit his guilt. Writing for a unanimous supreme court,
Justice Wilcox concluded that the defendant's right to due process was
not violated by the revocation of his probation. The court rejected the
defendant's argument that acceptance of an Alford plea
necessarily contemplates that defendants will be allowed to maintain
their factual innocence, even while completing the terms of probation
that have been imposed upon them. A defendant's protestations of
innocence under an Alford plea extend only to the plea itself.
Whatever the reason for entering an Alford plea, the fact
remains that when defendants enter such a plea, they become convicted
offenders and are treated no differently than they would be had they
gone to trial and been convicted by a jury.
The supreme court next considered whether the circuit court's failure
to inform the defendant at the time of his Alford plea that he
would be required to admit his guilt during a sex offender treatment
program rendered that plea unknowing and involuntary in violation of his
right to due process. The court concluded that it was not. It is well
established that in informing defendants of their rights, courts are
only required to notify them of the "direct consequences" of their
pleas. Defendants do not have a due process right to be informed of
consequences that are merely collateral to their pleas. The court
concluded that the circuit court was not required to inform Warren that
his probation could be revoked for failing to take responsibility for
his actions because it was only a collateral consequence of his
conviction.
Next the court considered whether the state breached the
Alford plea agreement and thereby violated the defendant's
right to due process when it revoked his probation solely on his
continued assertion of innocence. The court concluded that the
defendant's argument on this point was based upon the faulty premise
that an Alford plea is a promise that the defendant will never
have to admit his guilt. Because an Alford plea is not infused
with any special promises, the state did not change its position when it
revoked his probation for failing to admit guilt during probationary
treatment. Because the state never promised or assured the defendant
that he would be able to maintain his innocence for purposes other than
the plea itself, the court concluded that the state did not breach its
Alford plea agreement when it revoked the defendant's
probation.
In his final argument to the court, the defendant asserted that he
was denied his due process right to appointment of counsel for the
section 974.06 postconviction proceedings in this case. The supreme
court began its analysis of this issue by noting the well-established
principle that an indigent defendant has a constitutional right to
appointed counsel on his or her first direct appeal of right from a
conviction. The due process clause, however, does not require
appointment of counsel for discretionary appeals. The defendant's
postconviction relief pursuant to section 974.06 in this case was not a
direct appeal from a conviction. Rather, a section 974.06 proceeding is
considered to be civil in nature and authorizes a collateral attack on a
defendant's conviction. Defendants do not have a constitutional right to
counsel when mounting collateral attacks upon their convictions, such as
the postconviction motion involved here. Appellate courts retain the
discretion to appoint counsel to an indigent defendant upon appeal from
a denial of a section 974.06 motion, but the court declined to exercise
such discretion in this case.
Finally, the court paused to once again call for heightened diligence
on the part of circuit courts in accepting Alford pleas -
particularly in cases involving sex offenses. The acceptance of
Alford pleas is entirely discretionary, and circuit courts
should apply a critical eye toward accepting such pleas. An inherent
conflict arises when a charged sex offender enters an Alford
plea: The offender cannot maintain innocence under the Alford
plea and successfully complete the sex offender treatment program, which
requires the offender to admit guilt. The court strongly advised circuit
judges to give Alford-pleading defendants an instruction at the
time of the plea that their protestations of innocence extend only to
the plea itself, and do not serve as a guarantee that they cannot
subsequently be punished for violating the terms of their probation that
require an admission of guilt.
Hearsay - Prosecutor's Statements -
Defamation - Immunity - Perjury
State v. Cardenas-Hernandez,
No. 96-3605-CR (filed 30 June 1998)
The supreme court, in an opinion written by Justice Steinmetz,
affirmed the defendant's conviction for two counts of perjury. There
were two issues before the court.
First, did the judge erroneously exclude evidence in the perjury
trial of statements made by a prosecutor during preliminary proceedings
in a prior drug case? The prosecutor's statements were not admissible as
admissions by a party opponent under section 908.01(4), particularly as
statements by a speaking agent or by a regular agent. An issue of first
impression in Wisconsin, the court turned to federal precedent that
recognized that attorneys, even government attorneys, can fall within
the admissions exemption under certain circumstances. The court rejected
a per se prohibition on the use of a prosecutor's prior statements and
set forth the "guidelines" that trial judges should weigh in evaluating
the statements' admissibility. On this record, the judge properly
excluded the prosecutor's earlier statements. (Although "factual
assertions," the prosecutor's statements were not "clearly inconsistent"
with assertions made by the State at the perjury trial.) The court also
rejected several other hearsay theories as well as the claim that the
defendant was denied the right to present a defense.
Second, the supreme court held that the "absolute civil privilege for
defamatory statements made in a judicial proceeding applies in a
criminal prosecution for defamation under Wis. Stat. sec. 942.01 when
the statements are perjurious as well as defamatory." For this reason,
the supreme court upheld the court of appeals' reversal of the
defendant's criminal defamation convictions. The convictions for perjury
were, however, lawful because the perjury statute does not except
"otherwise privileged" statements. Wis. Stat. § 946.31.
Employment Law
Married Employees - Public Employers -
Health Insurance Limits
Motola v. LIRC, No. 97-0896
(filed 30 June 1998)
Connie went to work for the City of New Berlin in 1977 and was
enrolled for single health insurance coverage that met her own medical
needs. In 1980 she married another city employee. In 1984 they requested
family coverage. Under the city's "nonduplication policy," Connie's
health insurance status was changed from that of a single coverage
enrollee to that of a "dependent" under the family coverage
enrollment.
The issue before the supreme court concerned whether, under
Braatz v. LIRC (1993), any employer could limit its married
employees' coverage under one health insurance policy. The supreme
court, in an opinion written by Justice Geske, held that "a public
employer, as defined in Wis. Stat. sec. 40, and the regulations thereto,
may limit its married co-employees to coverage under one family health
insurance policy of their marital status," and therefore the
nonduplication policy did not violate the Wisconsin Fair Employment Act
(WFEA). The court interpreted the pertinent statutes as creating an
"implied exception" to WFEA's marital status discrimination clause. The
court declined to address the status of nonpublic employers.
Chief Justice Abrahamson dissented.
Environmental Law
Statute of Limitations - Discovery Rule -
Solid Waste Law - Spills Law
State v. Chrysler Outboard
Corp., No. 96-1158 (filed 19 June 1998)
The State brought an environmental enforcement action against the
defendants under the Solid Waste Law, Wis. Admin. Code RD 51.05-.06. The
trial judge dismissed the action because it had not been filed within
the statute of limitations. The judge also dismissed a claim against
Chrysler Outboard Corp. under the Spills Law, Wis. Stat. section
144.76(3)(1977), because Chrysler's alleged dumping preceded the
effective date of the Spills Law. The court of appeals certified the
case to the supreme court.
The supreme court, in an opinion written by Justice Wilcox, affirmed
in part and reversed in part. The court held "that the discovery rule is
not applicable to the State's environmental enforcement action under the
Solid Waste Law, and that the Spills Law is applicable in actions by the
State to compel remediation of, and to impose penalties for, hazardous
substance spills, which although initially caused in part by actions
preceding the statute's May 21, 1978 effective date, continue to
discharge after that date."
Justice Bablitch concurred in part and dissented in part, arguing
that the discovery rule should extend to enforcement actions under the
Solid Waste Law.
In a separate opinion Justice Geske, joined by Chief Justice
Abrahamson and Justice Bradley, joined the majority's holding regarding
the Solid Waste Law and concurred in the mandate permitting remediation
under the Spills Law. They dissented from that part of the opinion that
permitted the State to impose forfeitures for Spills Law violations
because it violated the ban against ex post facto punishment.
Public Trust Doctrine - Suits by Citizens Against
Private Parties Alleged to Have Been Inadequately
Regulated by the DNR
Gillen v. City of Neenah,
No. 96-2470 (filed 2 July 1998)
This case involves portions of Little Lake Butte des Morts in
Winnebago County. In chapter 52, Laws of 1951, the Legislature granted
right, title, and interest into certain submerged land near the south
shore of the lake (referred to as the Legislative Lakebed Grant) to the
City of Neenah for a "public purpose." In 1995 Minergy Corporation
sought a lease from the city to construct and operate a commercial
facility on approximately five acres of the grant area. The facility
would process paper sludge generated by paper mills in the Fox Valley
area into a glass aggregate product. The Department of Natural Resources
(DNR), the city of Neenah, Minergy Corporation and another company
signed a stipulation and settlement agreement which, among other things,
provided that the DNR asserted that the proposed Minergy facility would
be an impermissible public trust use and violate the Legislative Lakebed
Grant, relevant portions of Wis. Stat. chapter 30, and the public trust
doctrine as developed under Wisconsin law, but that regardless of the
foregoing, based on the historical development of the Grant Area, to
which the DNR failed to object, the DNR agreed that it would not pursue
enforcement action under its authority relating to the public trust
laws.
The plaintiffs (who were private citizens as well as organizations)
brought suit challenging the legality of the Minergy lease. As it
relates to this appeal, the critical issue was whether the public trust
doctrine enables a citizen to directly sue a private party whom the
citizen believes was inadequately regulated by the Department of Natural
Resources. This is the question that was certified by the court of
appeals to the supreme court. In a per curiam opinion the court held
that the plaintiffs could bring suit under Wis. Stat. section 30.294
against the defendants to abate a public nuisance.
The public trust doctrine recognizes that the state holds beds of
navigable waters in trust for all Wisconsin citizens. It enables the
state, or any person suing in the name of the state for the purpose of
vindicating the public trust, to assert a cause of action recognized by
the existing law of Wisconsin. Wis. Stat. chapter 30, enacted pursuant
to the public trust doctrine, governs navigable waters and navigation in
Wisconsin. Section 30.294 provides that "every violation of this chapter
[30] is declared to be a public nuisance and may be prohibited by
injunction and may be abated by legal action brought by any person. "
Thus, section 30.294 expressly contemplates citizens' suits irrespective
of the DNR's actions or enforcement decisions.
Another issue in the case was whether plaintiffs were barred from
bringing a claim under section 30.294 because they failed to comply with
the notice of claims statute. Section 893.80(1)(b) prevents a plaintiff
from bringing a cause of action against a governmental body unless the
plaintiff provides to the governmental body a notice of claim. However,
the court concluded that the failure to comply with the notice of claim
statute in this case did not bar the plaintiffs' claims brought in
accord with section 30.294. Section 30.294 expressly allows a plaintiff
to seek immediate injunctive relief to prevent injury. The enforcement
procedures provided in this statute are inconsistent with the notice of
claims law, which requires a plaintiff to provide a governmental body
with a notice of claim and to wait 120 days or until the claim is
disallowed before filing an action. Said the court, "we conclude that
there is an exception to Wis. Stat. sec. 893.80(1)(b) where the
plaintiffs' claims are brought pursuant to the public trust doctrine
under Wis. Stat. sec. 30.294, which provides injunctive relief as a
specific enforcement remedy. " Chief Justice Abrahamson filed a
concurring opinion that was joined by justices Geske and Bradley.
Evidence/Criminal Procedure
Character Evidence - Evidence of Witness's Character
for Truthfulness - Rule of Completeness - Prosecutor's Duties
When Defense Seeks to Interview State's Witness
State v. Eugenio, No.
96-1394-CR (filed 25 June 1998)
The defendant was charged with one count of "first-degree sexual
assault of a child" and one count of "threats to injure." The charges
arose from an incident four years earlier in which the defendant
allegedly sexually abused a 6-year-old child and then threatened to kill
her if she told anyone.
As part of the pretrial investigation, the defendant's attorneys
asked the victim's mother to allow the child to speak with a defense
investigator. The victim's mother contacted the district attorney's
office, which arranged for the meeting to occur in that office. At the
scheduled meeting between the investigator and the child, an assistant
district attorney neither actively encouraged cooperation with the
defense nor discouraged such cooperation. She advised the victim's
mother that the defense investigator was present to elicit information
from the child for later use in court. The mother subsequently refused
to allow her child to be questioned by the investigator, concluding that
the investigator's purpose was to "mess up" her daughter. The defendant
asked the circuit court to dismiss the case, asserting prosecutorial
misconduct because the district attorney had a duty to encourage the
victim's cooperation with the defense investigation. The circuit court
denied the motion.
At trial, the defense used its opening statement to highlight
inconsistencies in the victim's statements and to explain the defense
theory that the victim made those statements to get attention. The
defense continued this concentration on inconsistencies during its
cross-examination of the victim.
Considering defense counsel's assertions at opening statements to be
an attack on the victim's character, the circuit court allowed the state
to rehabilitate the victim's character by offering the testimony of the
victim's school counselor, who testified that in her opinion the victim
was a truthful individual. Based on the rule of completeness, the
circuit court also admitted the highlighted inconsistent statements in
their entirety.
The jury convicted the defendant on the sexual assault count. The
court of appeals affirmed. The supreme court, in a unanimous decision
authored by Justice Bradley, affirmed the court of appeals.
The first challenge to the conviction involved the circuit court's
admission of character testimony offered by the state to rehabilitate
the truthfulness of the victim. Wis. Stat. section 906.08(1) will allow
a witness's penchant for truthfulness to be the topic of rehabilitative
evidence only when "the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or otherwise." In this
case the supreme court concluded that where an attorney attacks the
character for truthfulness of a potential witness in an opening
statement, testimony presented to rehabilitate that witness may be
appropriate. But this is true only when there has truly been an attack
on character. Character is evidenced by a pattern of behavior or method
of conduct demonstrated by an individual over the course of time. Thus,
allegations of a single instance of falsehood cannot imply a character
for untruthfulness just as demonstration of a single instance of
truthfulness cannot imply the character trait of veracity. Viewing the
attack on a witness in its context, the circuit court must believe that
a reasonable person would consider the attack on the witness to be an
assertion that the witness is not only lying in this instance, but is a
liar generally. Only in such circumstances will rehabilitative evidence
be appropriate.
The determination of whether the character of truthfulness of a
witness is being challenged is a matter left to the proper discretion of
the circuit court. The circuit court here determined that the victim's
character for truthfulness was under attack through assertions that the
victim repeatedly lied to gain attention. Like the court of appeals, the
supreme court concluded that this determination was not an erroneous
exercise of discretion.
The court next considered the cross-examination of the victim by the
defense where there was extensive questioning about perceived
inconsistencies in the victim's statements to other individuals about
the abuse. In response, the circuit court permitted the state to offer
the challenged statements in their entirety to show consistency on
significant factual issues. The circuit court based its admission of the
statements on the rule of completeness.
The rule of completeness as codified in Wis. Stat. section 901.07
applies to written and recorded statements. In this case, the real
question debated by the parties was whether any form of the common law
rule of completeness, which included oral statements, survived
codification of section 901.07. The supreme court concluded that the
rule of completeness, as it has historically applied to oral statements
under the common law, is encompassed within the bounds of the codified
Wisconsin Rules of Evidence.
Section 906.11 provides that the judge shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to make the interrogation and presentation
effective for the ascertainment of the truth, avoid needless consumption
of time, and protect witnesses from harassment or undue embarrassment.
The court concluded that this statute encompasses the rule of
completeness for oral statements. The rule of completeness, however,
should not be viewed as an unbridled opportunity to open the door to
otherwise inadmissible evidence. Under the rule the court has discretion
to admit only those statements that are necessary to provide context and
prevent distortion. In this case the circuit court did not err in
exercising its discretion to admit the additional statements under the
rule of completeness.
Finally, the court addressed the defendant's contention that the
circuit court should have dismissed his case based on prosecutorial
misconduct as described above. The court concluded that there was no
prosecutorial misconduct by the assistant district attorney in this
case. While prosecutors may not discourage witnesses from cooperating
with the defense, they also are not under an affirmative legal duty to
encourage such cooperation.
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