Court of Appeals Digest

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

| Attorneys | Constitutional Law | Criminal Procedure |
| Family Law | Juvenile Law | Torts |
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Attorneys

Conflicts of Interest - Disqualification of Counsel - Waiver

Batchelor v. Batchelor, No. 96-3186 (filed 3 Sept. 1997) (ordered published 28 Oct. 1997)

This case concerns attorney conflicts of interest and whether a party may waive a claim of attorney disqualification by failing to timely raise the issue.

In a decision authored by Judge Snyder, the court of appeals began by noting that waiver of an attorney disqualification claim has not previously been addressed in Wisconsin case law. However, in other jurisdictions it has been widely held that in attorney disqualification matters the failure to raise a timely objection may result in waiver. The rationale behind this rule is that a court will not allow a litigant to delay filing a motion to disqualify in order to use the motion as a later tool to deprive his or her opponent of counsel of choice after substantial case preparation has been completed.

Further, the related but distinct equitable doctrine of laches has been held to apply to an attorney disqualification claim because the latter is an equitable, not a legal, matter. In applying the laches doctrine, the Wisconsin Supreme Court has held that for laches to arise there must be unreasonable delay, knowledge of the course of events and acquiescence therein, and prejudice to the party asserting the defense.

In this case the appellate court applied the foregoing legal principles to conclude that a party to a divorce action had waived a claim that her husband's lawyer was disqualified from representing the husband by virtue of a conflict of interest because of her failure to timely raise the issue.

Constitutional law

Flag Desecration Statute - Wis. Stat. section 946.05(1)
Held Unconstitutionally Overbroad

State v. Janssen, No. 97-1316-CR (filed 30 Sept. 1997) (ordered published 28 Oct. 1997)

Section 946.05(1) of the Wisconsin Statutes provides that "whoever intentionally and publicly mutilates, defiles, or casts contempt upon the flag is guilty of a Class E felony." Among the challenges to this statute brought by the defendant in this case was a claim that it is facially vague and overbroad.

In a decision authored by Judge Myse, the court concluded with respect to the vagueness challenge that the portions of the statute prohibiting the flag defiling and mutilating are sufficiently precise to overcome a vagueness challenge. The same, however, could not be said for that part of the statute making it unlawful to cast contempt upon the flag. The court concluded that the "casts contempt" language is so vague as to set no standard by which an individual's conduct may be measured. Accordingly, this portion of the statute was held to be unconstitutionally vague.

The court next considered the defendant's overbreadth claim. The court concluded that the statute not only is overbroad but also it deters protected expression in a real and substantial way. The statute is overbroad because the expansive language prohibiting any intentional and public act of defiling, mutilating or contemptuous treatment of the flag clearly encompasses acts that the U.S. Supreme Court has deemed to be protected expression. The statute is overbroad in a real and substantial way because the expression prohibited is of a type in which people have engaged. This fact allowed the court to confidently predict that the statute likely would have a chilling effect on protected expression.

The court concluded that there is no construction of this statute which it could provide that would save the statute from constitutional infirmity. Said the court, the difficult task of writing a constitutionally permissible flag desecration statute must be left to that branch of government where such power properly lies - the Legislature.

Criminal procedure

Terry Stops - Moving Suspect Temporarily Detained

State v. Quartana, No. 97-0695 (filed 24 Sept. 1997) (ordered published 28 Oct. 1997)

The defendant lost control of his car and drove into a ditch. Immediately afterwards, he left the accident scene and walked home to his parents' house, approximately one mile away. A Wisconsin State Patrol trooper arrived on the scene of the accident and took control as the investigating officer. After determining that the defendant owned the car and lived nearby, a local police officer was dispatched to his residence.

The local officer found the defendant at home, asked to see his driver's license and asked him about the accident. The defendant admitted that he had been driving at the time of the accident. At this point, the officer observed that the defendant's eyes were "sort of" bloodshot and glassy and that his breath smelled of intoxicants. When the officer informed the defendant that he would have to return to the accident scene to talk with the trooper investigating the matter, the defendant asked if he could ride with his parents. The officer testified that he told the defendant "he would have to come with [him], because [he] needed to keep an observation on him, and that he was temporarily being detained in reference to the accident investigation." The officer kept the defendant's license and drove him in the rear of the squad car back to the accident scene.

Once there, the officer turned the defendant and his license over to the trooper. The trooper immediately interviewed the defendant and had him perform several field sobriety tests, which he failed. The trooper then placed him under arrest for OWI and took him to the police station for further testing. The defendant refused to submit to chemical testing and was charged with an implied consent refusal.

At the refusal hearing the defendant challenged the prosecution by arguing that he had been placed under arrest without probable cause when the officer kept his driver's license and transported him against his will from his residence to the accident scene. The trial court found that, although the officer did not have probable cause to arrest the defendant, he acted within the scope of a temporary investigative detention when he transported the defendant to the accident scene.

The court of appeals, in a decision authored by Judge Brown, affirmed. The court began its analysis by noting that, pursuant to Terry v. Ohio, 392 U.S. 1 (1968), a police officer may, in appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. The Wisconsin Legislature has codified the constitutional standard established in Terry in Wis. Stat. section 968.24.

During the course of a Terry stop, officers may try to obtain information confirming or dispelling their suspicions. Further, by virtue of the express language of section 968.24, the police may move a suspect short distances during the course of a temporary investigation. The statute states that the police may temporarily detain and question an individual "in the vicinity where the person was stopped." Therefore, the law permits the police, if they have reasonable grounds for doing so, to move a suspect in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest.

Accordingly, when a person under investigation pursuant to a Terry stop is moved from one location to another, there exists a two-part inquiry. First, was the person moved within the "vicinity"? Second, was the purpose in moving the person within the vicinity reasonable?

The term "vicinity" is commonly understood to mean "a surrounding area or district" or "locality." In this case the court was convinced that the accident scene, only one mile from the defendant's house, was in the "surrounding area" or "locality." Therefore, the defendant was moved within the "vicinity" when the local police officer took him back to the accident scene.

Thus, the remaining issue was whether the police had reasonable grounds for moving the defendant within the vicinity. The court concluded that it was reasonable for the police to detain and transport the defendant to the scene of the accident to continue their investigation. The defendant showed signs of being under the influence of alcohol and the officer had reasonable grounds to further investigate to determine if his intoxication contributed to the accident. It would have been unreasonable to expect the State Patrol trooper to leave the scene unattended or require the assistance of yet another trooper to preserve the scene while the first trooper went to the defendant's home to interview him. It was far more reasonable for the local police officer to transport the defendant the short distance to the accident scene in order to continue the investigative effort.

The defendant argued that the conditions of his transportation amounted to an arrest. He argued that the restraint of his liberty proved that he was under arrest. But, said the court, he is wrong. A restraint of liberty does not ipso facto prove that an arrest has taken place. Nor did the court believe that the fact that the officer kept the defendant's license would lead to a conclusion that an arrest had taken place. Instead, the court looked to the totality of the circumstances to determine whether a reasonable person in the defendant's position would have considered himself or herself to be in custody given the degree of restraint under the circumstances. The court concluded that a reasonable person in the defendant's position would not have believed he or she was under arrest. The defendant was not transported to a more institutional setting such as a police station or interrogation room. Instead, he was taken back to the accident scene and his detention was brief in duration and public in nature. Further, the police did not detain him for an unusually long period of time. They diligently pursued their investigation and the defendant's detention lasted no longer than necessary to confirm the officer's suspicions.

Further, the officer told the defendant that he was being temporarily detained for purposes of the investigation and at no time prior to taking the field sobriety tests did any police officer communicate to the defendant, either through words or actions, that he was under arrest, or that the restraint of his liberty would be accompanied by some future interference with his freedom of movement. The defendant had to realize that if he passed the field sobriety tests, any restraint of his liberty would be lifted and he would be free to go.

In footnote the court observed that the statute requires the stop of the person to be in a public place. It noted that an argument could be made that the defendant in this case was first confronted and detained at his private residence and not in a public place. This issue, however, was neither raised nor briefed in this case and the court was unable to find any Wisconsin case discussing the applicability of section 968.24 when the detainee is in a private residence. Said the court, this issue is reserved for some future case.

Out-of-state Witnesses - Assessing Witness Travel
Expenses Against Defendant

State v. Bender, No. 97-1095-CR (filed 16 Sept. 1997) (ordered published 28 Oct. 1997)

The defendant was sentenced to prison after having been found guilty of two felonies. At sentencing the trial court ordered him to pay for half the cost of bringing his crime victim back to Wisconsin from Florida to testify at his trial. The victim was in custody in Florida at the time of trial. As ordered by the court, the amount of the victim's travel expenses allocated to the defendant was approximately $800.

On appeal the defendant asserted that the circuit court lacked authority under Wisconsin law to order him to pay the $800 for the victim's travel expenses. He argued that the amount the trial court could order him to pay was limited by the provisions of Wis. Stat. section 814.67(1)(c), which provides that out-of-state witnesses should be paid a fee for traveling at the rate of 20 cents per mile from the point where they cross the state boundary to the place of trial and back by the usually traveled route between such points. The state responded that the trial court properly ordered the defendant to pay half the victim's travel expenses as restitution to the sheriff's department under section 973.20 or, in the alternative, as a cost taxable against the defendant under section 973.06(1)(a).

In a decision authored by Judge Cane, the court of appeals concluded that the trial court had authority to order the payment under section 973.06(1), which provides that costs taxable against the defendant include "the necessary disbursements and fees of officers allowed by law and incurred in connection with the arrest, preliminary examination and trial of the defendant, including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country." In this case, the court found that the expenses incurred by the sheriff's department to have the victim transported from Florida to Wisconsin to testify at the defendant's trial were the type of disbursements and fees contemplated by the statute quoted above. The victim was incarcerated in a Florida corrections facility and the sheriff had to make special arrangements to have her transported from Florida to Wisconsin to testify at the defendant's trial. The costs involved for doing this were taxable against the defendant under section 973.06(1)(a) as a necessary disbursement of officers allowed by law and incurred in connection with the defendant's trial.

Post-conviction Relief - Newly Discovered Evidence
- Burden of Proof

State v. Avery, No. 96-3027 (filed 3 Sept. 1997) (ordered published 28 Oct. 1997)

The defendant was convicted of sexual assault, attempted murder and false imprisonment. The trial court denied his postconviction motion for a new trial on grounds of newly discovered evidence.

The court of appeals, in a decision written by Judge Nettesheim, affirmed. The defendant raised a series of arguments, only some of which will be highlighted. First, the court rejected the argument that the criteria for granting relief based on newly discovered evidence is whether the fresh evidence raises a "probability sufficient to undermine confidence in the outcome" of the trial. This "less stringent" test governs relief from due process violations (that is, the withholding of exculpatory evidence), as was recognized most recently in Kyles v. Whitely, 514 U.S. 419 (1995). The test for newly discovered evidence is more stringent: Did the defendant demonstrate, by clear and convincing evidence, that the newly discovered evidence created a reasonable probability that the outcome would be different on retrial? The court of appeals also concluded that this standard is consistent with State v. McCallum, 208 Wis. 2d 463 (1997). On the facts of this case, the defendant failed to show that his newly discovered DNA evidence would create a reasonable probability of a different outcome.

Finally, based upon the record, the trial court did not err in denying a supplemental motion for postconviction relief based on the withholding of exculpatory evidence. Although the judge denied the motion without an evidentiary hearing, the motion failed to allege facts which, if true, entitled him to relief.

Guilty Plea - Inadvertent Misstatements - Right to Counsel

State v. Knox, No. 97-0682-CR (filed 16 Sept. 1997) (ordered published 28 Oct. 1997)

The defendant, Knox, agreed to plead guilty to battery and bail jumping. In return the state promised to dismiss and read in two other misdemeanors and recommend a six-year prison sentence, concurrent to one Knox was presently serving. Several weeks later at the sentencing, a different prosecutor recommended what in effect amounted to a five-year term consecutive to the present sentence. Defense counsel requested a recess and conferred with the prosecutor. Back on the record, the prosecutor recommended the six-year concurrent term as originally agreed upon. The judge, however, sentenced Knox to four years in prison, consecutive to the other sentence.

On appeal Knox contended that the second prosecutor's misstatement constituted a breach of the plea agreement and hence his right to due process. The court of appeals, in a decision written by Judge Hoover, affirmed. The misstatement was not substantial. It was not an attempt to send a "veiled message" to the judge asking that Knox be treated more harshly than the plea bargain called for. The prosecutor simply erred in making her recommendation. The trial judge also commented upon the prosecutor's "earnest manner in advocating the corrected proposed disposition." Finally, the court found that Knox was not deprived of effective assistance o f counsel because trial counsel did not apprise him of his "right" to seek sentencing in front of a different judge: "Because the breach was not material, there was nothing to remedy."

Search and Seizure - No-knock Entries - Exclusionary Rule

State v. Stevens, No. 97-0758-CR (filed 16 Sept. 1997) (ordered published 28 Oct. 1997)

Police recovered drug-related evidence during a search of the defendant's home. In a case that has percolated through the appellate system since 1992, the defendant raised a series of challenges to the legality of the search. In this decision written by Judge Myse, the court of appeals held that the trial court erred in denying the defendant's motion to suppress. The court of appeals agreed with Stevens that police lacked reasonable suspicion to conduct a "no-knock" entry.

The court of appeals applied the U.S. Supreme Court's recent decision in Richards v. Wisconsin, 117 S. Ct. 1416 (1997). The state "conceded" that it had no specific information that Stevens was armed, likely to resist, or poised to destroy evidence. The court of appeals rejected the state's reliance upon "generalized information" about drug dealers because it would vitiate the Richardson reasonable suspicion test, permitting unannounced entries into homes whenever drugs were suspected.

Next, the court concluded that suppression was the appropriate remedy. The discovery of the evidence came as a result of the unannounced entry. Civil remedies for no-knock violations are inadequate. Only suppression will serve as an adequate deterrent in these cases.

Family law

Child Support - High-income Case - Disparate Incomes

Raz v. Brown, No. 96-1997 (filed 16 Sept. 1997) (ordered published 28 Oct. 1997)

Jan Raz and Mary Brown were married in 1979 and divorced in 1991. At the time of the divorce they entered into a marital settlement agreement that gave them joint custody of their two children with Mary having their primary placement. The stipulation required Jan to pay $2100 per month in child support. At the time of the divorce, Jan's monthly income was $9,600 and Mary's was $2,600.

In 1995 Jan brought motions seeking, among other things, to modify his child support obligation due to a claimed substantial change of circumstances. After a contested hearing, the circuit court found Mary's yearly income to be $114,000 and Jan's $108,000. Using the child support standards of Wis. Admin. Code HSS 80 and the shared time payer formula, the court ordered Jan to pay child support of $l,800 per month. Jan appealed from that order, claiming that the trial court erroneously exercised its discretion in calculating his child support obligation by applying the child support percentage standards.

In a decision authored by Judge Curley, the court of appeals affirmed. Under current statutory and case law, the trial court was obligated to determine child support by applying the child support percentage standards unless Jan could demonstrate that their use was unfair to the children or himself. The trial court was held to have appropriately exercised its discretion in determining that Jan had not met his burden of proof.

When the matter was before the circuit court, the judge found that, after paying child support Jan had $4,200 of disposable income per month, while Mary had $8,200. The court realized that this was a significant discrepancy but noted that there was no evidence to show the children were harmed because Mary had more disposable income than Jan. It also found that Jan failed to show that he would be unable to live at the same standard of living he was used to.

To prevail in this case Jan needed to do more than point out the disparity in disposable incomes which the child support percentage standards produced. Income disparity is only relevant if payers can show they are unable to pay the court-ordered child support or that the income disparity will adversely affect the children or themselves. In this case Jan attempted to make this showing by arguing that income disparity contributed to strife between himself and Mary, thereby harming the children and himself. He also urged that, because he has less discretionary income than Mary to spend on the children, the children are harmed by living at a lower standard of living when in his care.

The appellate court responded by noting that the stated intent of the child support percentage standard provisions is to ensure that children are not adversely affected by divorce. Equalizing lifestyles between divorced parents is not one of the objectives. The amount of discretionary income which either parent may have available to spend on their children is also a secondary consideration. What is paramount is that both parents pay a fair amount for their children's essential care.

The court noted that following divorce, many children find themselves living in homes where their parents have different standards of living. Reducing a child support payment to equalize standards of living between parents is no guarantee that strife will subside, nor is a reduction often in the children's best interest. The trial court in this case was held to have properly exercised its discretion when it found that there was no evidence in the record that indicated any harm to the children because Mary had more disposable income.

Divorce - Personal Jurisdiction - One Party a Resident of Mexico

Mendez v. Hernandez-Mendez, No. 96-1731 (filed 27 Aug. 1997) (ordered published 28 Oct. 1997)

Jose and Irma were married in Mexico. Two children were born to the marriage. Jose and Irma subsequently separated and Jose took up residence in Waukesha County, Wis.

Jose commenced this action, seeking a divorce, joint legal custody of the children, periods of physical placement of the children, property division and other relief. After protracted efforts, he succeeded in personally serving Irma in Mexico. She responded with a letter to the court in which she objected both to the court's jurisdiction and to the divorce. Other than this letter, she did not otherwise appear or participate in the circuit court proceedings.

The matter came on for a default hearing and, in light of the objections stated in Irma's letter, Jose orally amended his petition to request only a divorce. The circuit court ruled that it did not have personal jurisdiction over Irma and dismissed the petition.

In a decision authored by Judge Nettesheim, the court of appeals affirmed. The court began its analysis by noting that the circuit court had subject matter jurisdiction in this case and, further, that the residency requirements of section 767.05(1m) were not at issue. Turning to the matter of personal jurisdiction, the court first addressed the personal foreign service of Irma in Mexico. The court was unable to locate any Wisconsin case that has addressed the validity of foreign service upon a foreign citizen in a divorce action commenced in a Wisconsin court. There is authority in an earlier court of appeals decision in which the court observed that the Hague Convention, which generally covers foreign service of process, is not the exclusive vehicle for the service of process and that other notice can be sufficient to satisfy Wisconsin Statutes. See In re Marriage of Vause v. Vause, 140 Wis. 2d 157 (Ct. App. 1987).

In this case the personal foreign service on Irma appears to comply with the Hague Convention. However, although the United States is a signatory to the Hague Convention, the court of appeals took judicial notice that Mexico is not. Therefore, the court could not rely upon the Convention for the validity of the service on Irma. Nevertheless, if the manner of service otherwise provided her notice in a fair fashion, it would suffice. Since personal service actually was accomplished in this case and it is the preferred form of service under Wisconsin Statutes, the court concluded that it was valid.

Having properly served Irma, Jose contended that the circuit court was empowered to litigate his petition for divorce. He based this argument upon the fact that his action was amended to one of quasi in rem when he narrowed his claim for relief to only a divorce. The appellate court disagreed. Jose was required to show one of the grounds for the exercise of personal jurisdiction set out in Wis. Stat. section 801.05. This statute articulates 13 possible grounds for the exercise of personal jurisdiction and, as related to this case, the only relevant ground was the "local presence or status" provisions of section 801.05(1). The statute provides that a court of this state having jurisdiction of the subject matter has jurisdiction in any action whether arising within or without this state, against a defendant who when the action is commenced is:

1. a natural person present within this state when served;
2. a natural person domiciled within this state;
3. a domestic corporation or a limited liability company; or
4. engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate or otherwise.

It is clear that the first three grounds for the exercise of personal jurisdiction listed above did not exist in this case. Irma was not present or domiciled in Wisconsin when served, and she obviously is not a corporation or company. Thus, the fourth ground, which is the "long-arm" provision of the statute, must be examined to determine whether Irma had sufficient minimum contacts with Wisconsin. This analysis is necessary even though Jose's action was an in rem proceeding.

The record in this case was barren with regard to any contacts linking Irma to Wisconsin, much less sufficient minimum contacts. All the record reveals is that the parties were married in Mexico, that Irma was served there and that she has remained there. Thus, the only contacts established are Mexican, not Wisconsin. In light of this record, the court of appeals held that the circuit court correctly held that Jose had not established that Irma had sufficient minimum contacts with Wisconsin and it properly dismissed his petition.

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