Attorneys
Legal Malpractice – Expert Opinion Testimony
Kraft v. Steinhafel, 2015 WI App 62 (filed 29 July 2015) (ordered published 26 Aug. 2015)
HOLDING: Expert opinion testimony was not required to prove the plaintiff’s legal malpractice claim.
SUMMARY: The plaintiff sued her lawyer, now deceased, for legal malpractice. Her claims rested on the lawyer’s allegedly deficient representation when the state revoked the plaintiff’s license to sell insurance. In particular, the plaintiff alleged that she thought she would be eligible for reinstatement shortly after surrendering her license, but only later learned of a five-year ban before she could reapply. The trial judge granted summary judgment in favor of all defendants because the plaintiff offered no expert testimony on the standard of care for legal malpractice.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The court of appeals reversed in an opinion authored by Judge Gundrum. The plaintiff’s legal malpractice claim rested on “simple credibility determinations” about who was telling the truth – the client-plaintiff or the deceased lawyer. Expert testimony was not needed as a matter of law (see ¶ 13). A jury could adequately evaluate the facts without expert assistance (see ¶ 15). Here the dispute was a he said-she said controversy, between the client and former counsel, involving no “special knowledge” or expertise to decide who said what (see ¶ 18).
The court also addressed a number of fact-intensive issues involving potential liability by a law firm that later employed the deceased lawyer as he continued to represent the same client after her license revocation.
Criminal Law
Photographing Minors – “Captures a Representation” – “Stores” Images
State v. Chagnon, 2015 WI App 66 (filed 30 July 2015) (ordered published 26 Aug. 2015)
HOLDING: The defendant’s notebook of cut-and-pasted images from magazines did not constitute the intentional photographing of a minor.
SUMMARY: Chagnon, a sex offender, was found to be in possession of a “small red notebook” when he was being processed for release from a state correctional facility. The notebook contained nearly 200 photos, cut-and-pasted from newspapers and magazines, of clothed young girls. Chagnon annotated the photos with lewd, sexually graphic comments. The state charged him with 23 counts of intentionally photographing minors, contrary to Wis. Stat. section 948.14(2)(a). The circuit court denied his motion to dismiss, which claimed that the state could not prove that he had “capture[d] a representation of any minor.”
The court of appeals reversed, in an opinion authored by Judge Sherman, that construed Wis. Stat. section 948.14 and Wis. Stat. section 942.09, which share language. Although Chagnon’s conduct was “disturbing to say the least,” it did not violate the statute (¶ 11). He did not “make visual representations of the girls.” The images came from published sources. “We agree that Chagnon created something new and that Chagnon misused the photographs. But Chagnon did not, under any common definition of the term, ‘make’ new visual representation of the girls” (¶ 16).
Nor did his cropping the images and pasting them in his notebook constitute “storing” such images. Rather, “the phrase ‘stores in any medium data that represents a visual image’ in Wis. Stat. § 942.09(1)(a) refers to the creation of images by digital means” (¶ 28).
“In sum, the structure of Wis. Stat. § 942.09, with its separate subdivisions for capturing a representation and possessing such a representation, and the legislature’s decision to import the definition of ‘captures a representation’ from § 942.09 into Wis. Stat. § 948.14, along with legislative history indicating that the purpose of § 948.14 is to prohibit sex offenders from photographing, filming, or videotaping minors without parental consent, leads to the conclusion that ‘stores in any medium data that represents a visual image’ does not include the mere possession of visual images” (¶ 34).
Criminal Procedure
Return of Seized Money – Wis. Stat. Section 968.20
State v. Branch, 2015 WI App 65 (filed 1 July 2015) (ordered published 26 Aug. 2015)
HOLDING: The circuit court erroneously denied return of money, unassociated with the crime at issue, that was seized from the defendant at the time of arrest.
SUMMARY: Defendant Branch was arrested for attempted burglary. At the time of his arrest, he had $583 in cash on his person that law enforcement officers seized. Branch pleaded no contest to attempted burglary and was sentenced to prison. Thereafter he filed a motion pursuant to Wis. Stat. section 968.20 for the return of his money. The circuit court denied Branch’s request and applied the $583 to financial obligations Branch owed on this case.
Wis. Stat. section 968.20(1) permits a person whose property has been seized by law enforcement officers to seek return of the property in circuit court. If the person is able to establish ownership of the property to the court’s satisfaction, then the court “shall order the property, other than contraband or [certain dangerous weapons, firearms, or ammunition] returned,” so long as the property is not needed as evidence.
On appeal, the state admitted that “[t]his court can assume Branch was entitled to the money under Wis. Stat. § 968.20 because there is no evidence that it was contraband” (¶ 2). Nonetheless, the state asked the court of appeals to affirm the taking of Branch’s personal property on the ground that the circuit court has the “inherent authority to offset judgments.”
In a decision authored by Judge Reilly, the court of appeals reversed. It concluded that “a circuit court does not have the inherent authority to take property unassociated with the crime at issue and allocate that property to itself or others solely because the police happened to have seized the unassociated property at the time of arrest” (id.).
Evidence
Expert Opinion Testimony – Reliable Methodology – “Golden Rule” Violation
Seifert v. Balink, 2015 WI App 59 (filed 30 July 2015) (ordered published 26 Aug. 2015)
HOLDING: An expert medical witness properly testified to an opinion on the standard of care in a medical malpractice case.
SUMMARY: The plaintiffs sued the defendant doctor for negligence relating to injuries suffered by a child during birth. The trial judge permitted the plaintiffs’ expert witness to testify that the defendant’s conduct failed to meet the standard of care over objections that it violated Wis. Stat. section 907.02. The jury found the defendant negligent while rejecting the plaintiff’s informed-consent claim.
The court of appeals affirmed in an opinion authored by Judge Higginbotham. This is the first published decision discussing the reliability standard governing expert opinion testimony in civil litigation under Wis. Stat. section 907.02, as amended in 2011. The court reviewed federal precedent involving medical experts under the same rule, noting that “several courts have focused on the knowledge and experience of the testifying expert as an indicator of reliability under Daubert [v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993)]” (¶ 19).
Here the circuit court properly exercised its discretion in permitting the expert opinion testimony, especially in light of the expert’s qualifications and experience (see ¶ 29). Reliance on peer-reviewed publication is just one factor for a judge to consider under Wis. Stat. section 907.02 (see ¶ 31). Trial judges have “broad leeway” when assessing both the reliability of the expert’s methodology and its application in a case. The opinion “may have been debatable, but it was reliable because of his qualifications and experience, and because it was based on known and recognized factors and on his ‘holistic’ methodology of considering these factors together, taking into account the individualized facts of this case” (¶ 34).
The court also held that plaintiff counsel’s closing argument was proper; any “golden rule” miscues did not warrant a new trial. First, the remarks were not “pure violations” of the golden rule. Second, the curative instruction allayed any unfair prejudice. And third, there was no affirmative prejudice (see ¶ 46).
Family Law
Child Custody – Domestic-Abuse Presumption – Waiver
Glidewell v. Glidewell, 2015 WI App 64 (filed 7 July 2015) (ordered published 26 Aug. 2015)
HOLDING: The respondent waived her right to raise the domestic-violence presumption set forth in Wis. Stat. section 767.41(2)(d) in this postjudgment motion because the domestic violence she relied on occurred before entering of the original divorce judgment, in which she stipulated to joint custody.
SUMMARY: Jill Glidewell appealed from a postjudgment custody order continuing joint custody of the parties’ minor children with her former husband, Herbert Glidewell, but allocating certain decision-making to each party. After stipulating to joint custody in the original divorce, Jill sought to reopen the divorce judgment and modify custody on the basis of a domestic-violence incident that occurred before the original divorce and about which the circuit court was aware when it awarded joint custody.
Jill contended that the circuit court erred in not applying the domestic-violence presumption that it is “contrary to the best interest of the child to award joint or sole legal custody to” a parent who “the court finds by a preponderance of the evidence ... has engaged in a pattern or serious incident of interspousal battery ... or domestic abuse.” See Wis. Stat. § 767.41(2)(d).
The circuit court denied Jill’s motion to reopen the judgment, concluding that Jill had waived the domestic-violence statutory presumption by stipulating to the original joint custody order. But the court did modify the custody order, keeping joint custody, but allocating school decisions involving the children to Herbert and health care decisions to Jill.
In a decision authored by Judge Brennan, the court of appeals affirmed. It concluded that “Jill waived her right to raise the domestic violence presumption set forth in Wis. Stat. § 767.41(2)(d) in this post-judgment motion because the domestic violence she relies on occurred prior to her original divorce judgment, at which time she stipulated to joint custody. Jill cannot now assert the domestic violence presumption based on the pre-divorce incident and without asserting any post-judgment domestic violence facts” (¶ 4).
The court of appeals noted, however, that “Jill’s decision to stipulate to joint custody at the time of the divorce does not mean that she is barred from ever again seeking application of Wis. Stat.
§ 767.41(2)(d); rather, she has waived her right to seek application of the presumption based upon the facts that existed at the time she stipulated to joint custody. Jill is free to seek application of the presumption in the future if she has new facts, occurring since she stipulated to joint custody, that support the presumption. However, she has not set forth such new evidence here” (¶ 20).
Finally, the court of appeals concluded that the circuit court properly exercised its discretion when it ruled that it was in the children’s best interests to continue joint custody and divide between the parents final decision-making authority for educational and medical decisions (see ¶ 5).
Local Government Law
Home Rule – Residency Requirements for Public Employees – Wis. Stat. section 66.0502
Black v. City of Milwaukee, 2015 WI App 60 (filed 21 July 2015) (ordered published 26 Aug. 2015)
HOLDING: Section 66.0502 of the Wisconsin Statutes, which abolishes local residency requirements for public employees, does not involve a matter of statewide concern, nor does it affect every city or village uniformly; therefore, it does not, pursuant to the home-rule amendment (Wis. Const. art. XI, § 3.(1)), trump the city of Milwaukee’s residency requirement.
SUMMARY: Wisconsin’s “home rule” amendment (Wis. Const. art. XI, § 3.(1)) provides in pertinent part that “‘[c]ities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.’ This means, broadly speaking, that where a city has created law under its ‘home rule’ authority, any state law in conflict must yield to the local law unless it involves a matter of ‘statewide concern’ and affects every city or village with uniformity” (¶ 1).
In this case, the court of appeals was asked to determine which of two competing pieces of legislation – one created by the state legislature, and one created by the city of Milwaukee under home-rule authority – has the force of law. The city of Milwaukee ordinance at issue requires all city employees to live in the city of Milwaukee. The state statute at issue (Wis. Stat. § 66.0502) abolishes local residency requirements. On summary judgment, the circuit court declared that section 66.0502 involves a matter of statewide concern, affects all local governmental units uniformly, and consequently, pursuant to the home-rule amendment, trumps the Milwaukee ordinance.
In a decision authored by Judge Curley, the court of appeals first concluded that section 66.0502 does not involve a matter of statewide concern. Even though the statute declares that the legislature has found that public employee residency requirements are a matter of statewide concern, the court of appeals refused to conclude that “because the legislature said so” is reason enough to affirm the circuit court when there are no facts to support that conclusion.
“The facts in the record, exemplified by the Legislative Fiscal Bureau paper [which is entitled ‘Local Government Employee Residency Requirements’ and which was prepared over a month before § 66.0502 was passed], make clear that the goal of Wis. Stat. § 66.0502 was to target the City of Milwaukee. Nearly every portion of the Legislative Fiscal Bureau paper’s analysis explains in great detail how Milwaukee will be affected. The effect on the state, on the other hand, is never substantiated, and only given lip-service with broad policy arguments. This complete dearth of evidence to support the legislature’s contention does not suffice under the law” (¶ 21).
The court of appeals was likewise unpersuaded that section 66.0502 affects the health, safety, or welfare of the people of Wisconsin in any demonstrable way (see ¶ 22) or protects public employees against unfairly restrictive employment conditions (see ¶ 24).
The court of appeals further concluded that Wis. Stat. section 66.0502 does not affect all local governmental units uniformly.
“There is no dispute that, while the statute does not overtly single out any particular municipality, it will have an outsize impact on the City of Milwaukee…. [T]he Legislative Fiscal Bureau paper makes very clear that the City of Milwaukee would be very severely impacted by legislation prohibiting residency requirements. On the other hand, the impact of a prohibition on residency requirements on the numerous other local governmental bodies in this state is not discussed in any meaningful way…. Regardless of what the statute’s language says, the facts in the record make clear that only one city – Milwaukee – will be deeply and broadly affected. We therefore can reach no other conclusion than that Wis. Stat. § 66.0502 does not uniformly affect every city or village in this state” (¶ 33).
In sum, “[t]he statute at issue in this case, Wis. Stat. § 66.0502, does not involve a matter of statewide concern, nor does it affect every city or village uniformly; therefore, it does not, pursuant to the home rule amendment [Wis. Const. art. XI, § 3.(1)], trump the City of Milwaukee’s residency requirement” (¶ 35). The court of appeals also held that section 66.0502 does not create a protectable liberty interest (see ¶ 35).
Judge Kessler filed a concurring opinion in which she agreed with the entirety of the majority opinion but wrote separately to point out additional fiscal effects that section 66.0502 will likely have only on the city of Milwaukee. Judge Brennan joined this concurrence.
Landlords – Ordinances – Preemption
Olson v. City of La Crosse, 2015 WI App 67 (filed 16 July 2015) (ordered published 26 Aug. 2015)
HOLDING: A state statute preempted a local ordinance requiring landlords to notify tenants of city inspections; the invalid provision, however, was severable from the remainder of the ordinance.
SUMMARY: Landlords challenged a city ordinance that required inspections and registrations, arguing that state statutes controlled and preempted municipal regulations. The circuit court rejected the landlords’ contentions and dismissed their action.
The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Lundsten. On appeal, the landlords focused only on a provision requiring them to notify tenants of city inspections. The court agreed with the landlords that the notice provision was preempted by Wis. Stat. section 66.0104(2)(d)1.a., which precludes local governments from requiring a landlord to communicate to tenants any information other than that required by federal or state law. In rejecting the city’s contention, the court harmonized pertinent statutes, thus avoiding a conflict among them. It also observed that this interpretation would have “minimal impact” on landlords’ duty to comply with local housing codes (see ¶ 14).
The court ruled in favor of the city, however, in deciding the invalid ordinance could be severed from the remainder of the city’s inspection and registration program. The city might elect, for example, to itself provide notice to tenants (see ¶ 21).
Public Records
Employee Records – District Attorney Not an “Employee”
Moustakis v. Wisconsin Dep’t of Justice, 2015 WI App 63 (filed 31 July 2015) (ordered published 26 Aug. 2015)
HOLDING: A district attorney lacked standing to bring an action for judicial review under Wis. Stat. section 19.356(4) in an effort to prevent release of records relating to investigations of his conduct or handling of cases while serving as district attorney.
SUMMARY: This case involves Wisconsin’s public records law. Wisconsin Statutes section 19.35 provides for the right of the public to inspect governmental records. The legislature has recognized that some records that are subject to disclosure would inevitably contain “personally identifiable information” about some individuals; these individuals are known as “record subjects.” “Generally speaking, record subjects are not entitled to notice that a record concerning them will be released, nor are they entitled to judicial review of the decision of an authority to provide a requester with access to a record” (¶ 14) (internal quotation marks omitted).
However, the legislature has excluded three narrow categories of records from this general rule. One of these categories concerns a record “containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee’s employer.” See Wis. Stat. § 19.356(2)(a)1.
In this case the Vilas County District Attorney (Moustakis) brought an action under Wis. Stat. section 19.356(4) to enjoin the Wisconsin Department of Justice (DOJ) from releasing certain records requested by the press that pertained inter alia to any investigation of his conduct or handling of cases while serving as district attorney. The DOJ moved to dismiss the action, arguing that the district attorney is not an “employee” within the meaning of Wis. Stat. section 19.356(2)(a)1. and as defined in Wis. Stat. section 19.32(1bg), and therefore he lacked standing to bring the action. The circuit court granted the DOJ’s motion.
In a decision authored by Judge Hruz, the court of appeals affirmed. The question before the court was whether Moustakis is an “employee,” as that term is used in Wis. Stat. section 19.356(2)(a)1. and defined in Wis. Stat. section 19.32(1bg), such that he may maintain an action for judicial review under Wis. Stat. section 19.356(4). The court concluded that “various provisions of Wisconsin’s public records law unambiguously preclude Moustakis from maintaining this action – most notably, Wis. Stat. § 19.32(1bg), which excludes from the definition of ‘employee’ those individuals ‘holding a ... state public office.’ We therefore agree with the circuit court that Moustakis lacks standing to bring an action under § 19.356(4)“ (¶ 1).
Torts
Recreational Immunity – Parking Lot
Carini v. ProHealth Care Inc., 2015 WI App 61 (filed 28 July 2015) (ordered published 26 Aug. 2015)
HOLDING: An employee who tripped and badly injured herself at a company picnic was engaged in a “recreational activity” under the terms of the recreational immunity statute.
SUMMARY: The plaintiff, an employee of ProHealth, attended a company picnic at a zoo. She seriously injured herself when she tripped over a power cable in the zoo parking lot while walking to a food tent. The cable was not covered, as it was supposed to be. The circuit court denied ProHealth’s motion to dismiss, which was based on recreational immunity.
The court of appeals reversed in an opinion authored by Judge Curley. First, the plaintiff was engaged in a recreational activity – “picnicking” – when she tripped (see ¶ 11). Case law construing Wis. Stat. section 895.52 (the recreational immunity statute) “makes clear that the act of walking to or from an immune activity constitutes recreational activity” (¶ 12). Second, ProHealth’s negligence in failing to cover the cable was related to the condition of the picnic area, namely, the uncovered power cable. Controlling cases “make clear that a temporary, artificial condition still may constitute a ‘condition’ of the land” (¶ 21).
“In sum, because Carini was engaged in a ‘recreational activity’ when she injured her shoulder and because ProHealth Care’s negligence was related to the condition of the picnic area, the recreational immunity statute, Wis. Stat. § 895.52, bars liability. The negligence claim against ProHealth Care must therefore be dismissed” (¶ 22).
