Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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.

Criminal Procedure

Resentencing - Relevant Information

State v. Carter, No. 94-2001-CR (filed 19 March 1997)

The defendant was convicted of false imprisonment while armed. He was originally sentenced to five years in prison but the prosecutor agreed to a "resentencing" because the judge had relied upon a flawed psychological report. At the resentencing the defendant offered "new information" relating to events (for example, an offer of employment) that occurred after the original sentencing. At the resentencing, the trial judge refused to consider the new information. The court of appeals affirmed.

The supreme court, in an opinion written by Chief Justice Abrahamson, reversed. The court held that "a circuit court should, in imposing a sentence at a resentencing proceeding, consider all information relevant about a defendant, including information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing." The court refused to distinguish resentencing following an invalid conviction and resentencing solely to correct an invalid sentence: "The role of the sentencing court is the same regardless of the procedural history leading to the resentencing."

The majority opinion extensively discusses the case law and should be carefully reviewed by criminal practitioners. Several cases were limited to their facts. In particular, the supreme court overruled State v. Solles, 169 Wis. 2d 566 (Ct. App. 1992).

Justice Steinmetz dissented, joined by Justices Wilcox and Crooks.

Work-release Probationers - Failure to Return
to the County Jail - Liability for Escape

State v. Rosenburg, No. 95-1760-CR (filed 20 March 1997)

The defendant was a probationer on work-release from the county jail. He failed to return to jail and, as a result, was charged and convicted of escape, contrary to section 946.42 of the Wisconsin Statutes (1993-94).

The defendant appealed the escape conviction, relying on State v. Schaller, 70 Wis. 2d 107, 233 N.W.2d 416 (1975), which held that a probationer confined in a county jail as a condition of probation could not be convicted of escape for failure to return from work release. The state responded to this position by contending that certain amendments to the escape statute enacted by the Legislature in 1983 had the effect of overruling Schaller and, hence, brought the defendant's failure to return to jail within the purview of the escape statute.

A unanimous supreme court, in an opinion authored by Justice Bablitch, disagreed with the state's argument and reversed the conviction. The court concluded that the 1993 amendments to the probation statute did not affect the escape statute in any way relevant to this case and, therefore, Schaller governs the escape statute that was in effect when the defendant committed the act for which he was charged and convicted of escape.

In footnote the court observed that the defendant was charged and convicted under the version of section 946.42 that appeared in the 1993-94 edition of the Wisconsin Statutes. The escape statute was amended in 1996 but, because the question was not before the court, it declined to rule on the impact of the 1996 amendments on the continuing vitality of the Schaller decision.

Family Law/Appellate Procedure

Divorce - Military Retirement Pay - Property Division - Calculation of Child Support - Appellate Procedure -
Power of the Court of Appeals to Overrule, Modify
or Withdraw Language From One of Its Published Opinions

Cook v. Cook, No. 95-1963 (filed 19 March 1997)

Persons who serve in the armed forces for a specified period, generally 20 years, are entitled to receive military retirement pay upon leaving the service. The retirement pay is not available as a lump sum; it is taxable as income and terminates on the death of the retiree. A retiree is entitled to military retirement pay even if he or she takes a post-retirement job, except that military retirement pay temporarily ceases if the retiree returns to active duty.

This case presented the supreme court with important questions about military retirement pay arising in the context of divorce, the division of property and the setting of child support. The court first confronted whether military retirement pay is property for purposes of property division upon divorce. In a unanimous decision authored by Chief Justice Abrahamson, the court concluded that, unless otherwise excluded by law, military retirement pay must be considered as property for purposes of property division.

Second, the court confronted whether, if military retirement pay is divided in the property division, the noncustodial spouse's share of the military retirement pay be considered part of that spouse's gross income for the purpose of calculating his or her child support obligation. The supreme court concluded that military retirement pay may be considered as income for purposes of calculating child support. In so holding, the court rejected the retiree's argument that if his military retirement pay is subject to property division, then any portion awarded to him should not be considered as income for purposes of calculating the amount of child support he is to pay.

Another critical issue the court addressed in this case concerns appellate procedure and whether the Wisconsin Court of Appeals may overrule, modify or withdraw language from one of its published decisions. The supreme court concluded that the court of appeals does not have this power.

In reaching this conclusion, the supreme court indicated that four principles are clear: the court of appeals is a unitary court; published opinions of the court of appeals are precedential; litigants, lawyers and circuit courts should be able to rely upon precedent; and law development and law defining rest primarily with the supreme court. Adhering to these principles the supreme court concluded that the constitution and statutes must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals. In that way one court, not several, is the unifying law defining and law development court.

But the supreme court observed that the court of appeals is not powerless if it concludes that a prior decision of the court of appeals or supreme court is erroneous. It may signal its disfavor to the litigants, lawyers and the supreme court by certifying the appeal to the supreme court, explaining that it believes a prior case was wrongly decided. Alternatively, the court of appeals may decide the appeal, adhering to a prior case but stating its belief that the prior case was wrongly decided.

For all of these reasons the supreme court concluded that the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.

Insurance

Subrogation - Settlements

Ives v. Coopertools, No. 95-0932 (filed 28 Feb. 1997)

The question before the supreme court was whether a subrogated insurer is entitled to reimbursement on its lien when the injured plaintiffs settle with the alleged tortfeasor before trial for an amount less than their total damages. The supreme court held that the court of appeals erred by holding that "there must be a determination of [the plaintiff's] contributory negligence, if any, before the question of reimbursement to [the insurer] can be considered." Ives v. Coopertools, 197 Wis. 2d 937, 541 N.W.2d 247 (Ct. App. 1995). The supreme court was, however, evenly divided on the reasons for this conclusion. Chief Justice Abrahamson, Justice Bablitch and Justice Geske would vote to affirm the "made whole" rule announced in Garrity v. Rural Mutual Ins. Co., 77 Wis. 2d 537 (1977), but would overrule Sorge v. National Car Rental System Inc., 182 Wis.2d 52 (1994) (which focuses on what the injured plaintiff lost, not on what he can legally receive). Justices Steinmetz, Wilcox, and Crooks concluded that, "in the case of a settlement before trial, the circuit court should assess the subrogated insurer's rights of recovery at a rate equal to the percentage of the plaintiff's recovery in relation to his or her gross damages." Justice Bradley did not participate.

The supreme court's decision affirmed the circuit court's order. The court of appeals' decision could not stand because the court unanimously agreed that it did not state the law in Wisconsin. Neither Justice Geske's concurring opinion nor Justice Steinmetz's concurring opinion have precedential value.

Torts

Municipal Liability - Damage Cap -
Waiver - Discretionary Immunity

Anderson v. City of Milwaukee, Nos. 94-1030 and 94-2162 (filed 28 Feb. 1997)

Section 893.80(3) of the Wisconsin Statutes provides in pertinent part that "the amount recoverable by any person for any damages, injuries or death in any action founded on tort against any ... governmental subdivision ... and against their officers, officials, agents or employees for acts done in their official capacity or in the course of their agency or employment ... shall not exceed $50,000."

In this case the supreme court addressed the issue of whether the municipal defendant had waived, by omission, the $50,000 liability damage limitation specified in the preceding statute when it failed to plead it as an affirmative defense in its answer and failed to raise it in motions after verdict. In a unanimous decision authored by Justice Crooks, the court held that the damage limitation of section 893.80(3) cannot be impliedly waived by failing to raise it in an answer, during trial or in a post-verdict motion, because this would undermine the statute's purposes, which are to protect the public treasury and enable public entities to conduct fiscal planning, while also protecting the public interest in compensating injured parties. The damage limitation is not an affirmative defense that is deemed waived if not raised in a responsive pleading or by motion. However, the damage limitation may be expressly waived under circumstances that satisfy the purposes of this statute, that is, protecting the public treasury and allowing for fiscal planning.

The court also considered the issue of whether the discretionary immunity defense under section 893.80(4) of the Wisconsin Statutes may be waived by omission. Section 893.80(4) provides in pertinent part that "no suit may be brought against any ... governmental subdivision ... or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." The supreme court concluded that the discretionary immunity specified in this statute may be waived by omission. Discretionary immunity is an affirmative defense that is deemed waived if it is not raised in a responsive pleading or by motion.

Worker's Compensation

Worker's Compensation Act - Exclusive Remedy -
Injury Within Course of Employment - Injury Arising
From Course of Employment

Weiss v. City of Milwaukee, No. 94-0171 (filed 4 March 1997)

Weiss was hired by the City of Milwaukee, which required her to provide her address and phone number to the payroll department. When providing this information, she advised the payroll department that she had an abusive former husband and wanted her address and phone number kept confidential. A city clerk advised her that the established policy guaranteed the confidentiality of this information. By way of a ruse, the former husband called the city payroll department and obtained Weiss's address and phone number. He later called Weiss, telling her that he had this information and threatening to kill her and her two children.

Weiss sued the city in a common law action alleging negligent infliction of emotional distress based upon the city's disclosure of her address and phone number. The city moved to dismiss on two grounds: 1) under the Open Records Law, it had no duty to keep the information confidential; and 2) the Worker's Compensation Act (WCA) provided an exclusive remedy. Wis. Stat. 102.01-.89 (1991-92). The circuit court dismissed the action on the first ground. The court of appeals affirmed, but adopted the second ground; namely, the WCA provided the exclusive remedy.

The supreme court, in an opinion written by Justice Bradley, affirmed. The court held that Weiss's injuries were covered by the WCA and that the exclusive remedy provision precluded her common law action.

Weiss argued that receiving a personal phone call at work did not meet the WCA's requirement that the injury occur while "performing service growing out of and incidental to ... her employment." Under a liberal construction of the WCA, "an employee acts within the course of employment when he or she is otherwise within the time and space limits of employment, and briefly turns away from his or her work to tend to matters 'necessary or convenient to his [or her] own personal wealth or comfort.'" The "brief personal telephone call" fell within this rule; it did not evince an intent to "abandon the job temporarily." The court also rejected Weiss's argument that because she was injured by a nonemployee for purely personal reasons, the injury did not arise from her employment. The "conditions of Weiss's employment facilitated her eventual injury" even if the employment did not create the conditions. Weiss provided her address and phone number only because city employment rules required her to do so.