Vol. 74, No. 7, July 2001

Supreme Court Digest

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

• Civil Procedure
• Criminal Law
• Employment Law
• Family Law
• Property

Civil Procedure

Discovery - Privileges - Patients' Records - Confidentiality

Crawford v. Care Concepts Inc., 2001 WI 45 (filed 15 May 2001)

While a resident in a nursing home, plaintiff Crawford allegedly was attacked and injured by another patient, D.D., who suffered from Alzheimer's. Her complaint alleged that the attack was caused by the nursing home staff's negligence. During discovery, the nursing home refused to provide documents and answer various interrogatories based on the evidentiary privilege at Wis. Stat. section 905.04 and the confidentiality of health care records, as provided by Wis. Stat. section 146.82(1). The trial court granted the plaintiff's motion to compel discovery. The court of appeals affirmed in part and reversed in part, concluding that some of the discovery requests arguably did delve into privileged or confidential material.

The supreme court, in an opinion written by Justice Bablitch, affirmed. First, the court held that section 905.04, the general health care provider privilege, did not impede the discovery demands. Although the privilege broadly extends to "confidential" information and communications, D.D.'s possible "attacks" on other nursing home residents were not privileged. Because they are third persons, "[r]esidents of the nursing home fall outside the network of relationships set forth in the privilege" (¶22). Nor were possible attacks on employees or other individuals privileged, albeit for different reasons. "Applying the privilege to information concerning assaultive behavior observed at a residential facility by the health care provider does not advance candid communication between patient and health care provider." The court concluded that "where a patient engages in assaultive conduct, such conduct is not intended to be confidential for the purposes of candid discussion of medical concerns, which is the purpose of the physician-patient privilege" (¶25). Finally, interrogatories asking whether D.D. ever engaged in conduct tending to cause a disturbance also did not call for information "intended" to be kept confidential or which fell within the rule's policy. Nonetheless, several interrogatories were worded so broadly that they raised the possibility of revealing privileged information, so the case was remanded for an in camera review of such materials (¶28).

Second, the supreme court also held that section 146.82(2) did not thwart discovery. Although the statute protects the confidentiality of patient health care records, it is not an absolute bar. In particular, the "lawful order of the court" exception in section 146.82(2)(a)4 permits a trial court, in its discretion, to order appropriate discovery. The court also ruled that case law construing Wis. Stat. section 51.30 was not applicable to section 146.82 because of the vast differences between chapter 51 mental health commitments and privacy interests raised by cases like this one. Because the information sought was not privileged, the court's order granting the motion to compel was lawful (¶41).

Answer - Failure to File Timely Answer - Excusable Neglect

Connor v. Connor, 2001 WI 49 (filed 18 May 2001)

In this action, the defendant responded to the plaintiffs' complaint with an untimely answer. Responding to the defendant's answer, the plaintiffs filed a motion to strike the answer and a motion for default judgment, asserting that they did not receive the answer until the statutory deadline had passed and that no extension of time to answer was ever requested by or granted to the defendant.

The defendant filed a motion requesting the court to accept her answer, arguing that the court should regard her answer as timely served because her attorney had received an extension of time to serve the answer from a lawyer who worked at the same firm as the plaintiffs' counsel. After a hearing, the circuit court concluded that defense counsel's affidavit only stated that he understood that there was a courtesy extension agreement between the parties; it did not state that he ever asked for or received an extension. This lack of a clear agreement was a factor in the court's conclusion that there was insufficient evidence to support a finding of excusable neglect for the failure to answer in a timely fashion. Default judgment was entered for the plaintiff.

The defendant next filed both a motion for reconsideration and a motion to reopen and vacate the judgment under Wis. Stat. section 806.07(1), relying in part upon a second affidavit from her original attorney. In that affidavit the attorney alleged that the parties had in fact entered into an oral courtesy extension agreement. The plaintiffs responded with an affidavit from their own attorney, denying the existence of any such agreement. The circuit court denied both of the defendant's motions, dismissing the second affidavit of defense counsel as unbelievable and "self-serving." The court of appeals affirmed.

The supreme court, in a unanimous decision authored by Justice Bablitch, concluded that, on the facts as described above, the circuit court did not abuse its discretion in granting default judgment or in denying the motion to vacate the judgment. The defendant failed to present sufficient evidence of excusable neglect or any other basis for relief that might be available under Wis. Stat. section 806.07(1).

In the course of its analysis the court observed that "this case reemphasizes our previous warning that, as a matter of good practice, such [courtesy extension] agreements should be reduced to writing with additional notification to the court" (¶21).

Criminal Law

Threat to Judge - "True Threat" Standard Imposed

State v. Perkins, 2001 WI 46 (filed 16 May 2001)

The defendant was convicted of threatening a judge in violation of Wis. Stat. section 940.203(2). The question of law presented on appeal was whether a new trial should be granted because the jury instruction relating to this crime failed to shield the defendant from a conviction based on constitutionally protected speech.

Some threatening words are protected speech under the First Amendment. Only a "true threat" is constitutionally punishable under statutes criminalizing threats. In a majority decision authored by Chief Justice Abrahamson, the supreme court concluded that the test for a "true threat" that appropriately balances free speech and the need to proscribe unprotected speech is an objective standard from the perspectives of both the speaker and listener. "A true threat is determined using an objective reasonable person standard. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech" (¶29). It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

The jury instruction given in this case did not define a "true threat" as described above and, accordingly, the court held that the instruction was inadequate. This deficiency in the jury instruction on the elements of the crime led the court to conclude that the controversy in this case was not fully tried and, accordingly, it reversed.

Justice Wilcox filed a concurring opinion that was joined by Justice Crooks.

Disorderly Conduct - "True Threats" - Purely Written Speech

State v. Douglas D., 2001 WI 47 (filed 16 May 2001)

The circuit court found that the content of an 8th grade creative writing assignment authored by the petitioner, a minor, constituted a threat against the minor's English teacher. Based on this finding, it adjudicated the petitioner delinquent for violating the disorderly conduct statute. The court of appeals affirmed.

The juvenile petitioned the supreme court to reverse the court of appeals decision, presenting two issues for review: 1) Can the disorderly statute be construed to criminalize purely written speech, even if the speech does not cause a disturbance? 2) If so, is his speech protected by the First Amendment, thus barring the state from prosecuting him for disorderly conduct?

Writing the lead opinion for the court, Justice Wilcox concluded that purely written speech, even written speech that fails to cause an actual disturbance, can constitute disorderly conduct as defined by Wis. Stat. section 947.01. This statute provides as follows: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." This statute is not a blanket proscription of certain words. By contrast, it is a recognition of the fact that in some circumstances words carry with them proscribable nonspeech elements. For example, "unreasonably loud" speech - even if the words themselves are protected by the First Amendment - carries with it the nonspeech element of excessive volume. Similarly, "abusive" speech carries with it the nonspeech element of an express or implied threat or challenge to fight. These nonspeech elements constitute the proscribed "conduct" under section 947.01. And it is these elements that, consistent with the First Amendment, can be punished under the statute.

Applying this understanding of section 947.01, the court concluded that "the state is not barred from convicting [the juvenile] for the content of his story merely because his story consisted of purely written speech. However, the state still has the burden to prove that [his] speech is constitutionally unprotected "abusive" conduct, within the punitive reach of [the disorderly conduct statute]" (¶25).

The court could not agree with the juvenile's contention that threatening a public school teacher while in school is not the type of conduct that tends to cause or provoke a disturbance. Said the court, "it makes no difference under sec. 947.01 whether, as [the juvenile] asserts, allegedly disorderly conduct actually causes a disturbance. Rather, the conduct only need to be of the type of conduct that tends to disturb others" (¶29). The fact that the juvenile's writing assignment did not cause an actual disturbance is irrelevant to the present inquiry. It is enough that he conveyed the story to his teacher under circumstances where such conduct tended to cause or provoke a disturbance.

The court next considered whether the story was protected by the First Amendment, thus falling outside the bounds of conduct prosecutable under the disorderly conduct statute. Wisconsin prohibits true threats that occur under circumstances where such conduct tends to cause or provoke a disturbance by means of the section 947.01 prohibition on "abusive" conduct. If the juvenile's story constituted a true threat, the state properly could prosecute him for violating the section 947.01 prohibition on "abusive" conduct. Applying the definition of "true threat" adopted in State v. Perkins, 2001 WI 46 (digested above), the court concluded as a matter of law that the story submitted by the juvenile to his English teacher did not constitute a true threat and thus could not support a disorderly conduct conviction.

The court concluded by noting that, although the First Amendment prohibits law enforcement officials from prosecuting protected speech, it does not necessarily follow that schools may not discipline students for such speech (¶42).

Chief Justice Abrahamson submitted a concurring opinion in which she agreed with the majority opinion's conclusion that the creative writing essay is protected by the First Amendment and may not be punished as criminal conduct. However, the Chief Justice did not join in what she characterized as the majority's "expansion" of the disorderly conduct statute.

Justice Bablitch submitted a concurrence arguing that, when dealing with speech alone in the context of a crime that does not require intent, he would adopt a test "that focuses on both the subjective intent of the speaker and the perspectives of a reasonable listener" (¶62).

Justice Bradley, who was joined by Chief Justice Abrahamson, submitted a concurring opinion, in which she agreed with the majority's First Amendment analysis and its conclusion that the speech in this case was not a true threat. However, Justice Bradley contended that the majority unnecessarily applied the disorderly conduct statute and erroneously concluded that the speech at issue would otherwise constitute disorderly conduct.

Justice Crooks, joined by Justice Wilcox, submitted a concurring opinion agreeing with the test for true threats in the majority opinion, the application thereof, and the resulting reversal of the conviction. He wrote separately to emphasize that the court's decision should not be interpreted as imposing a limitation upon a school's ability to discipline its students.

Justice Prosser filed a dissenting opinion.

Disorderly Conduct - "Abusive" or "Otherwise Disorderly Conduct" - "True Threats"

State v. A.S., 2001 WI 48 (filed 16 May 2001)

A delinquency petition charging disorderly conduct alleged that A.S. told two girls that he intended to kill everyone at a middle school, except the girls and some other friends, and that he would make people suffer in the process. He then provided graphic detail on the manner he would use to kill or seriously harm specific individuals, including a teacher, an assistant principal, a police officer, and a classmate. The petition states that these statements were made during a discussion of recent school shootings in Colorado.

On these allegations three issues were presented to the supreme court for its consideration in this appeal: 1) whether the disorderly conduct statute can be applied solely to speech; 2) whether the juvenile's speech was protected under the First Amendment; and 3) whether the elements of disorderly conduct were met in this case.

In a decision authored by Justice Bablitch, the supreme court concluded that speech alone in certain contexts can constitute disorderly conduct. Even though in this case the disorderly conduct statute is being applied to speech, this application is permissible because the application is not directed at the content of the speech itself. Instead, the prosecution is directed at controlling the harmful effects of the speech. "The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable" (¶17).

The court also concluded that the juvenile's speech was not protected by the First Amendment. Using the "true threat" analysis adopted in State v. Perkins, 2001 WI 46 (digested above), the court concluded that the juvenile's statements, as alleged in the petition, did constitute true threats. Under the totality of the circumstances, a reasonable speaker in the position of the juvenile would foresee that reasonable listeners would interpret his statements as serious expressions of an intent to intimidate or inflict bodily harm.

Finally, the court concluded that the petition contained sufficient facts to establish probable cause under the disorderly conduct statute that the juvenile's language was both abusive and otherwise disorderly. With reference to the latter, the court found that violent threats of the type involved in this case are of the kind that tend to disrupt good order under the circumstances because they could cause the listeners to be seriously concerned about the safety of those threatened. Further, to be guilty of disorderly conduct, one's behavior must under the circumstances tend to cause or provoke a disturbance. Here the court concluded that the juvenile's violent threats to kill and seriously harm others could only serve to frighten and cause serious concern to the listeners.

Chief Justice Abrahamson and Justice Bablitch filed separate concurrences.

Repeated Acts of Sexual Assault Against the Same Child - Constitutionality of Wis. Stat. Section 948.025

State v. Johnson, 2001 WI 52 (filed 30 May 2001)

Wis. Stat. section 948.025 provides that it is a Class B felony if one "commits 3 or more violations under s. 948.02(1) or (2) [first and second-degree sexual assault of a child] within a specified period of time." The statute further provides that if a case brought under this statute is tried to a jury, in order to find the defendant guilty, the members of the jury must unanimously agree that at least three violations occurred within the time period alleged, but need not agree on which acts constituted the requisite number.

In this case the defendant challenged the statute provision that relieves the jury of any requirement of unanimity as to the specific individual acts of sexual assault that combine to constitute the crime, as long as the jury unanimously agrees that the defendant committed at least three such assaults.

Section 948.025 previously survived a unanimity challenge under the state constitution. See State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997). However, since the Molitor case was decided, the U.S. Supreme Court issued a decision holding that to convict a defendant under the federal "continuing criminal enterprise" drug statute, the jury must unanimously agree on the specific underlying drug code violations that comprise the "continuing criminal enterprise." See Richardson v. U.S., 526 U.S. 813 (1999). The defendant argued that Molitor cannot survive Richardson and, since the jury in his case had not been instructed that it must be unanimous on the specific predicate acts of sexual assault that comprise the crime, his right to a unanimous verdict was violated.

In a majority decision authored by Justice Sykes, the supreme court concluded that Molitor survives Richardson, and that under the state and federal constitutional analyses in both cases, the statute in question is constitutional.

Critical to the court's analysis was its conclusion that, under section 948.025, the predicate acts of sexual assault are not themselves elements of the offense about which the jury must be unanimous before convicting the defendant. Rather, to convict under this statute, the jury need only unanimously agree that the defendant committed at least three acts of sexual assault with the same child within the specified time period. Where evidence of more than three acts is admitted, the jury need not unanimously agree about the underlying acts as long as it unanimously agrees that the defendant committed at least three. In other words, said the court, "it is the course of sexually assaultive conduct that constitutes the primary element of this offense, about which the jury must be unanimous.... Unanimity is explicitly not required regarding the individual acts of sexual assault" (¶16).

Further, the court concluded that the statute does not violate due process, a constitutional protection that can limit the state's ability to define a crime so as to dispense with the requirement of jury unanimity on the alternate means or modes of committing a crime. Due process requires an inquiry into the fundamental fairness and rationality of the legislative choice. In this regard the court concluded that it was not unfair or irrational for the legislature to lift the requirement of jury unanimity as to the specific underlying acts of child sexual assault because, among other things, the predicate acts of first and second-degree sexual assault that combine to establish the required course of conduct under section 948.025 are "basically morally and conceptually equivalent" (¶18).

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson and Justice Bablitch.

Prior Federal Conviction - Subsequent State Prosecution - Statutory Bar

State v. Hansen, 2001 WI 53 (filed 30 May 2001)

The defendant was arrested and charged in circuit court with possession with intent to deliver cocaine. While the state prosecution was pending, a federal grand jury indicted for conspiracy to distribute and possess with intent to distribute cocaine under federal law. In May 1998 the defendant pled guilty to federal conspiracy charges in federal court and was sentenced to prison. She then brought a motion to dismiss the pending state charges in this case pursuant to Wis. Stat. section 961.45. The circuit court denied the motion and she then pleaded guilty but preserved her appellate rights on this issue. The court of appeals certified this case to the supreme court to resolve whether "the term 'same act' under § 961.45 [is] defined by the elements of the state and federal crimes, or by the conduct for which the defendant is convicted?" (¶8).

The supreme court, in an opinion written by Justice Bradley, reversed the state conviction because "a prior federal conviction based on the same conduct constitutes a conviction for the 'same act' under § 961.45" (¶1). The court closely examined the statute's legislative history, its plain language, related statutes, and case law on double jeopardy. The court refused to be bound by a footnote in an earlier case that suggested, in dicta, that "identity of law" controlled such issues, not the actual conduct (¶32-¶33). Moreover, the court's construction of section 961.45 better furthered the avowed policy of creating an "interlocking trellis" of state and federal enforcement efforts (¶36).

Chief Justice Abrahamson concurred but wrote separately to address several points raised in a dissent by Justice Wilcox, who was joined by Justice Crooks.

Interrogation - Miranda Waiver

State v. Bond, 2001 WI 56 (filed 31 May 2001)

In a per curiam decision, an equally divided supreme court, Justice Sykes not participating, affirmed the decision by the court of appeals at 2000 WI App 118. The issue concerned whether an officer's remarks constituted custodial interrogation that required a valid Miranda waiver.

Employment Law

Restrictive Covenants - Customer Lists - Corporate Successors

Farm Credit Services v. Wysocki, 2001 WI 51 (filed 30 May 2001)

In 1983 Wysocki signed an employment agreement with PCA of Wausau that contained a covenant not to compete. PCA made agricultural loans and provided other financial services to its customers. Over the years PCA merged with other entities and increased its geographical area. Following a 1991 merger, PCA was named the "surviving association" and later changed its name to Farm Credit Services of North Central Wisconsin (FCS). In 1998 Wysocki notified his supervisor that he was quitting and that he intended to solicit FCS customers. FCS brought this action to enforce the covenant not to compete. The circuit court granted Wysocki's motion for summary judgment, and the court of appeals affirmed.

The supreme court, in an opinion written by Justice Wilcox, reversed in an opinion that addressed two issues. First, the covenant not to compete was lawful despite Wysocki's claim that it impermissibly expanded the geographic area of coverage through a subsequent merger. After reviewing Wisconsin law and policy that regard such covenants with "suspicion," the court focused on the precise contract language at issue. Here the covenant not to compete was a "customer list limitation rather than a geographical restriction" (¶13). Moreover, it was "more narrowly tailored" than those at issue in prior cases because it included only those customers that Wysocki "serviced in the year prior to his date of separation" (¶14). Nor did the two subsequent mergers alter the matter because the covenant specifically "contemplated a fluid customer list limitation rather than a rigid geographical restriction." The court held that such "fluid customer list limitations should be given greater breadth than rigid geographical restrictions because they oftentimes 'more clearly approximate[] the area of the employer's vulnerability to unfair competition by a former employee and [do] not deprive the employee of legitimate competitive opportunities to which he is entitled'" (¶15). Finding the covenant not to be per se invalid, the supreme court remanded the case for an evidentiary hearing on whether it was reasonable under Wis. Stat. section 103.465 (1997-98).

The second issue necessitated a fact-intensive scrutiny of the record in which the court found that PCA of Wausau had not been "merged out of existence" in a way that destroyed the original covenant. Nothing in the merger or the controlling statutes abrogated the 1983 employment agreement.

Chief Justice Abrahamson concurred and wrote separately to emphasize an "internal contradiction" in the majority's opinion between principles of contract law and the state's public policy of viewing such covenants as prima facie suspect. The Chief Justice concluded that it is an "open question of fact whether the covenant not to compete anticipated enlargement of the specified territory."

Family Law

Divorce - Stipulations - Repudiation of Stipulations

Van Boxtel v. Van Boxtel, 2001 WI 40 (filed 2 May 2001)

In this case the petition for review and the briefs of both parties articulated the issue presented for review as follows: "When a husband and wife, during marriage but after the commencement of divorce proceedings, enter into a written marital property agreement classifying a piece of real estate as the individual property of the wife, should that agreement be enforced in making the property division in a divorce proceeding?" See 10, note 4.

To resolve this issue the supreme court had to contend with the ultimate question of whether the agreement described above, which was signed after divorce proceedings had commenced, was a stipulation subject to court approval under Wis. Stat. section 767.10(1) or a binding agreement under section 767.255(3)(L). In a unanimous decision authored by Justice Bradley, the court concluded that any agreement regarding the division of property entered into between spouses after divorce proceedings have commenced is a stipulation under section 767.10(1) and is therefore subject to court approval.

In this case the circuit court refused to incorporate the stipulation into the divorce judgment. The supreme court concluded that the lower court's refusal to do so was warranted by the husband's repudiation of his consent to the stipulation. The repudiation of consent to a stipulation by a party may render the stipulation nonexistent. Thereafter, a court's refusal to incorporate it into the judgment cannot be said to be an erroneous exercise of discretion.

Property

Ownership of Church Property - Wis. Stat. Section 187.15(4) - United Methodist Church

Wisconsin Conference Board of Trustees of the United Methodist Church Inc. v. Culver, 2001 WI 55 (filed 31 May 2001)

Wis. Stat. section 187.15(4) provides as follows: "Whenever any local Methodist church or society shall become defunct or be dissolved, the rights, privileges and title to the property thereof, both real and personal, shall vest in the annual Conference and be administered according to the rules and discipline of said church." The United Methodist Church (UMC) is organized in a hierarchical fashion and the Conference referred to in the statute is UMC's state-level organizational body.

In this case a local Methodist church broke away from the Methodist denomination, and the Conference moved to assume control of the local church property. The Conference's primary contention was that under Wis. Stat. section 187.15(4), the local church had become defunct or dissolved, thus entitling the Conference to all property held by the local church.

In a majority decision authored by Justice Bradley, the supreme court concluded that the local church's cessation of ties to the UMC and the statewide Conference rendered it defunct or dissolved under the statute. By operation of section 187.15(4), title to the property at issue thereafter vested in the Conference.

Chief Justice Abrahamson and Justice Wilcox filed separate dissents.