Supreme Court Digest

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

| Civil Procedure | Civil Rights | Courts |
| Criminal Procedure | Evidence | Insurance |

Suing Governmental Entities ­
Notice of Claims ­ Counterclaims

City of Racine v. Waste Facility Siting Board, No. 96-0688 (filed 19 March 1998)

The City of Racine supported expanding a landfill. The Waste Facility Siting Board (board) is a state agency that oversees dispute resolutions concerning solid and hazardous waste facilities. After the board disqualified the city's representative on the local siting committee, the city filed this action for circuit court review. RATE, a local citizens' group, intervened as a defendant and failed a counterclaim against the city, along with a cross-claim, seeking declaratory relief excluding the city's representative. The trial judge granted the city's motion for summary judgment dismissing RATE's claims for failure to comply with the notice of claim statute, section 893.80(1)(b) of the Wisconsin Statutes.

The supreme court, in an opinion written by Justice Bablitch, affirmed the trial judge's order that dismissed RATE's counterclaim against the City. Although RATE's arguments for restricting section 893.80(1) to torts had merit, the supreme court's "hands are tied by the plain language" of the statute. Thus, the rule is that "compliance with sec. 893.80(1)(b) is a necessary prerequisite to all actions brought against the entities listed in the statute, including governmental subdivisions, whether a tort or non-tort action, and whether brought as an initial claim, counterclaim or cross-claim. Except as provided by statute or case law interpreting those statutes, a party must file a notice of claim and follow the statutory procedures set forth in sec. 893.80(1)(b) before bringing any action against a governmental subdivision."

Chief Justice Abrahamson dissented, joined by Justices Geske and Bradley. The application of section 893.80(1) to a counterclaim was inconsistent with the statute's text.

Section 1983 Claims ­ Statute of
Limitations ­ Appellate Procedure

Hemberger v. Bitzer, No. 96-2973 (filed 13 March 1998)

Four years after losing her job, the plaintiff brought an action alleging that the defendants violated her rights to free speech by terminating her employment. The narrow question presented in this case is whether 42 U.S.C. section 1983 claims are governed by a three- or six-year statute of limitations. The supreme court, in an opinion written by Justice Bablitch, held that section 1983 claims are governed by the six-year statute of limitations under section 893.53 of the Wisconsin Statutes. The court reasoned that section 893.53 was a "residual" statute that applied to "personal injury actions"; thus, the court was "constrained" by binding precedent to apply this statute to the section 1983 claim. The court overruled Hanson v. Madison Serv. Corp., 125 Wis. 2d 138 (Ct. App. 1985), and Kempfer v. Evers, 133 Wis. 2d 415 (Ct. App. 1986), to the extent it relied upon Hanson.

The court of appeals had certified a second question to the court; namely, can the court of appeals "overrule or modify a previously published decision of this court when the parties dispute whether the decision should or must be overruled or modified in light of later federal law." The supreme court held that "[o]nly the supreme court, and not the court of appeals, 'has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.'" In short, in such situations the court of appeals can certify the issue to the supreme court or decide the case in adherence to the troublesome precedent but explain why it believes the precedent is in error.

Inherent Powers ­ Power to Remove Judicial Assistants

Barland v. Eau Claire County, No. 96-1607 (filed 13 March 1998)

Melland worked as a judicial assistant/legal secretary to a circuit court judge and to the family court commissioner in Eau Claire County. She was a member of the union representing courthouse clerical employees. Pursuant to the terms of a collective bargaining agreement between the county and the union, Melland was "bumped" out of her position as a judicial assistant by a more senior courthouse employee whose position with the register of deeds office had been eliminated.

In this action the judges of Eau Claire County filed a complaint seeking a declaration that they have the exclusive authority to appoint and to remove their judicial assistants and that such authority may not be modified by a collective bargaining agreement. The judges prevailed in that action before the circuit court and, upon appeal, the court of appeals certified the case to the Wisconsin Supreme Court.

In a majority decision authored by Justice Wilcox, the supreme court affirmed. It concluded that, based upon the customary practices in Wisconsin, and on the unique relationship between a judge and his or her assistant, the "bumping" provision of the collective bargaining agreement cannot be harmonized with the circuit court judge's exclusive, inherent power to remove a judicial assistant. Because the provision of the collective bargaining agreement at issue in this case obstructs the judiciary in its exclusive sphere, and thereby violates the separation of powers principles implied by the Wisconsin Constitution, it is void, unenforceable, and not subject to arbitration.

In footnote the majority noted that this decision required the court to determine whether circuit court judges can prevent removal of their judicial assistants. The power to appoint an assistant after one has been removed is a secondary consideration and one not triggered by the facts of this case. Accordingly, the court limited this decision to a circuit court judge's power to remove his or her judicial assistant.

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

Court Automation Program Revenue ­
Lapse to General Fund ­ Constitutionality

Flynn v. Dep't of Administration, No. 96-3266 (filed 13 March 1988)

In 1989, in response to a request by the judicial branch, the Legislature created an appropriation for court automated information systems, such as electronic filing of documents, document imaging, computerized file tracking, judicial access to computerized research tools, integrating the computer information systems of all circuit courts in the state, and so on.

Court automation is funded through program revenue, which means that certain designated revenues that are paid into the general fund are credited by law to an appropriation to finance a specific program or state agency. Until the 1995-97 biennium budget when court automation became an annual appropriation, the court automation program revenue was classified as a continuing appropriation. Expenditures made under a continuing appropriation from program revenues are limited only by the available revenues from which the appropriation is made.

At the time of the governor's 1993-95 budget proposal, the Department of Administration projected that the court automation appropriation would have a positive balance of more than $4 million at the end of fiscal year 1993. The Legislative Fiscal Bureau offered several alternatives for the court automation program with respect to the anticipated $4 million balance. Ultimately, the Legislature increased the appropriation for court automation by nearly $l million from the previous biennium, and it lapsed $2.8 million from the court automation program revenue appropriation to the general fund. See 1993 Wis. Act 16 § 9253.

In this action the plaintiff, on behalf of himself and other citizen users of the Wisconsin court system, argued that the enactment of 1993 Wis. Act16 section 9253, which caused the lapse of $2.8 million to the general revenue fund of unexpected program revenues designed for court automation, was invalid because it violates fundamental public policy grounded in the constitution and the separation of powers doctrine.

In a majority decision authored by Justice Bablitch, the supreme court disagreed with these arguments. It concluded that it is the province of the Legislature, not the courts, to determine public policy. Because one Legislature may not bind future Legislatures, it is fully within the Legislature's power to change an appropriation put into place by a previous legislative session. It is assumed that such action reflects public will, and if not, those legislators will be answerable at the ballot box.

The court also concluded that appropriating funds for the judiciary is one of shared powers. The Legislature clearly has the appropriation power and the judiciary has explicit constitutional administrative powers and inherent powers to ensure that the judicial system functions efficiently. However, the plaintiff failed to show beyond a reasonable doubt that the lapse of $2.8 million from the court automation program revenue fund to the general purpose revenue fund unduly burdened or substantially interfered with the judiciary. Therefore, the court held that the lapse is constitutional.

Justice Bradley filed a concurring opinion that was joined by Chief Justice Abrahamson.

NGI Commitments ­ Impact of Subsequent Criminal
Conviction on Service of NGI Commitment

State v. Szulczewski, No. 96-1323-CR (filed 13 March 1998)

The defendant was found not guilty by reason of mental disease or defect (NGI) on charges of murder and attempted murder. He was committed to the Department of Health and Social Services for custody and treatment. While institutionalized, he battered another patient and was convicted of a felony with respect to that attack. The circuit court sentenced the defendant to prison on the battery charge and ordered him immediately transferred to the Department of Corrections (DOC) for confinement in the Wisconsin prison system even though he was still serving the NGI commitment.

The court of appeals affirmed. It concluded that the immediate commencement of the defendant's prison sentence was required by Wis. Stat. section 973.15.

The supreme court, in a unanimous decision authored by Chief Justice Abrahamson, reversed and remanded. It held that a circuit court has the discretion to decide whether to stay execution of a prison sentence imposed on an NGI acquittee who is convicted of and sentenced for a crime committed while under the NGI commitment. This discretion, said the court, is similar to the discretion a circuit court exercises when making any sentencing decision. In exercising its discretion, a circuit court may determine that the purposes of both the criminal and NGI statutes are best served by allowing the defendant to remain in a mental health institution pursuant to the NGI acquittal. This disposition may be appropriate, for example, in cases involving less serious crimes or defendants with serious mental illness or special treatment needs.

In other cases the circuit court may determine that the goals of retribution, rehabilitation, deterrence, and segregation are best served by committing the defendant to the custody of the DOC upon sentencing. This disposition may be appropriate, for example, in cases where the crime requires severe punishment, where there is a need to deter both the particular defendant and the general NGI population, and where the defendant needs to be segregated from the general NGI population.

Accordingly, the supreme court concluded that the statutes authorize the circuit court to determine whether a prison sentence of an NGI committee should be executed forthwith for deterrence, rehabilitation, retribution and segregation purposes, or whether the prison sentence should be stayed to achieve the objectives of the NGI commitment.

Search Warrants ­ Knock and Announce ­
Anticipatory Search Warrants

State v. Meyer, No. 96-2243-CR (filed 20 March 1998)

This case raised issues regarding anticipatory search warrants for controlled substances and the "knock and announce" requirement which, with limited exception, must be observed when the police execute search warrants.

In a majority decision authored by Justice Crooks, the supreme court first addressed the matter of anticipatory search warrants. These warrants are peculiar to property in transit and may be issued prior to the contraband being located at the premises to be searched. The probable cause doctrine as it applies to search warrants does not require that contraband to be seized must presently be located at the premises to be searched, only that there is probable cause to believe that a crime has been (or is being) committed and that evidence of it can likely be found at the described location at the time of the search. The probable cause standard will not be satisfied unless the affidavit in support of the anticipatory warrant demonstrates that the contraband is on a "sure course" to the premises to be searched. In a drug case like the present one, the court recognized that government-controlled deliveries to the target premises may be more likely to reach their destination than those deliveries expected within the normal course of a drug organization's operations.

The defendant argued that the warrant in this case was an unconstitutional anticipatory warrant because it did not contain any conditional language; that is, the warrant did not limit the officers' discretion in executing the warrant and did not sufficiently detail the events that had to occur prior to its execution. Rejecting this argument, the supreme court relied upon United States v. Leidner, 99 F.3d 1423 (7th Cir. 1996). The Leidner court stated that it found "no cases from this circuit requiring (as a matter of constitutional law) anticipatory warrants to explicitly state that the expected delivery must occur prior to the execution of the warrant." The Seventh Circuit recognized that although some courts appear to prefer conditional language, the only constitutional requirement in issuing an anticipatory search warrant is that it be supported by probable cause.

The supreme court also addressed the "knock and announce" rule in this decision. The U.S. Supreme Court has concluded that, in order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. See Richards v. Wisconsin, 117 S. Ct. 1416 (1997).

In applying Richards in this case, the supreme court had to contend with the role of the police officers' training and experience in determining whether they have cause to dispense with the knock and announce requirement. The court concluded that an officer may dispense with the rule of announcement if he or she has a reasonable suspicion, based upon the particular facts in a given case and the reasonable inferences drawn therefrom, that knocking and announcing the officer's presence would be dangerous or futile or inhibit the effective investigation of the crime. Furthermore, in determining whether reasonable suspicion exists, an officer's training and prior experience in similar situations may be considered in combination with the particular facts. In so holding, the court rejected the state's position that:

1) based upon prior experience in similar cases, an officer may reasonably infer that complying with the rule of announcement would result in danger or the destruction of evidence; and

2) such prior experience satisfies the reasonable suspicion test for dispensing with the rule of announcement, as long as there is no specific evidence that would negate an officer's reasonable suspicion of danger or destruction in a particular case.

Justice Bablitch filed a concurring opinion that was joined by Justices Steinmetz and Wilcox. Justice Geske wrote a separate concurrence to address the concurring opinion of Justice Bablitch, which was joined by the Chief Justice, Justice Bradley, and Justice Crooks.

Evidence - Hearsay - Credibility Experts

State v. Huntington, No. 96-1775-CR (filed 20 March 1998)

The supreme court affirmed the defendant's conviction for three counts of sexually assaulting a child under age 13. He raised a series of evidentiary challenges which were considered by the court in its opinion by Justice Bradley.

First, the court upheld the admissibility of statements by the child to her mother, sister, and a police officer as excited utterances under section 908.03(2) of the Wisconsin Statutes. The opinion canvasses the case law on excited utterances by child sexual abuse victims. The court declined to interpret State v. Gerald L.C., 194 Wis. 2d 548 (Ct. App. 1995), as setting forth a "bright-line rule." The child's statements to her mother and sister were made two weeks after the last alleged assault and while the child was "crying" and "scared." While a "closer call," the statements made to the police officer also fell within the exception for similar reasons. In addition to the excited utterance exception, the court also considered the applicability of the residual exception, section 908.03(24) of the Wisconsin Statutes, as construed by State v. Sorenson, 143 Wis. 2d 226 (1988). The record satisfied all five of the so-called "Sorenson factors" and therefore all three series of statements were admissible.

Second, the defendant also objected to hearsay statements related by a nurse practitioner, who interviewed the victim and her mother. The nurse's conversations with the victim and her mother properly fell under section 908.03(4), the exception for statements made for purposes of medical diagnosis or opinion. (The court deftly analyzed the double hearsay character of some of the statements.) But statements made by a social worker to the nurse were not admissible. Section 908.03(4) does not apply "to statements made to counselors or social workers." The court acknowledged, however, that prior case law had recognized psychologists, psychiatrists, and even chiropractors as "medical" experts under section 908.03(4).

Finally, the court upheld the admissibility of expert testimony indicating that the victim's reactions were consistent with the behavior of sexual abuse victims. The expert's testimony did not cross the forbidden line by telling the jury that a crime had occurred or that the victim was truthful about what had occurred.

Justice Geske, joined by Chief Justice Abrahamson and Justice Bablitch, dissented because Wisconsin's case law on the residual hearsay exception has become a "quagmire" for trial judges.

Evidence ­ Rape Shield Statute ­
Improper Impeachment ­ Harmless Error

State v. Jackson, No. 96-1618-CR (filed 20 March 1998)

The defendant was convicted of sexual assault, armed kidnapping, robbery, threats to injure, and armed burglary. The court of appeals reversed based on alleged errors that excluded evidence of a prior consensual sexual relationship and the admission of threatening letters written by the defendant. The supreme court, in an opinion written by Justice Bradley, reversed the court of appeals.

First, the rape shield statute, Wis. Stat. section 972.11, excluded proffered evidence of a prior consensual sexual relationship between the victim and the defendant. The court reviewed and applied the three-part test that governs the admissibility of such evidence. Although the defendant had adequately demonstrated the existence of the prior sexual relationship (the state did not dispute the evidence at trial), its materiality was extremely questionable. Moreover, the rape shield law "embodies the legislature's distrust of evidence of a victim's prior sexual history by initially weighting the balance in favor of a determination that the evidence is inherently prejudicial." In other words, the starting point is exclusion and the defendant failed to overcome this burden. The supreme court also was unimpressed by the defendant's contention that the prosecutor had "opened the door" during the defendant's cross-examination. The record revealed a very different scenario; namely, "the defendant attempting to beat the door down on his own initiative by taking advantage of a question which did nothing more than summarize the theory repeatedly asserted by the defense that the complainant was acting vindictively over a financial dispute."

Second, the trial court erred by admitting threatening letters written by the defendant to his "girlfriend" (not the victim). Although relevant to impeach a witness, the letter unfairly prejudiced the defendant by strongly suggesting his violent character. The error was, however, harmless.

Admissibility of "Other Acts" Evidence ­
Wis. Stat. section 904.04(2) ­ "Whitty" Evidence

State v. Sullivan, No. 96-2244-CR (filed 25 March 1998)

The defendant was convicted of battery to a woman with whom he was romantically involved and of disorderly conduct. During his trial evidence was admitted from the defendant's ex-wife and a neighbor to the effect that two years earlier the defendant had abused his ex-wife, not physically, but by using insulting and intimidating words including threats to assault her.

Two issues were raised before the supreme court: 1) Did the circuit court erroneously exercise its discretion in admitting the other acts evidence? 2) If the circuit court erred in admitting the other acts evidence, was the error harmless? In a majority decision authored by Chief Justice Abrahamson, the supreme court concluded that the other acts evidence was erroneously admitted and that the admission of that evidence was reversible error.

To determine the admissibility of other acts evidence, a three-step analytical framework is used. The first step is to determine whether the other acts evidence was offered for an acceptable purpose identified under Wis. Stat. section 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The next step is to determine whether the other acts evidence is relevant, considering the two facets of relevance set forth in Wis. Stat. section 904.01. The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration is whether the evidence has probative value; that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence. The third and final step is to determine whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Wis. Stat. § 904.03.

In this case the majority concluded: 1) The other acts evidence was offered to establish the defendant's intent or absence of accident. 2) The other acts evidence related to a consequential fact in the case, namely the defendant's intent or absence of accident. However, the other acts evidence was dissimilar enough from the incident upon which the charged offenses were based that the evidence was not probative of the defendant's intent or absence of accident. 3) Even if the other acts evidence had probative value with regard to the defendant's intent or absence of accident, the probative value of the other acts evidence was substantially outweighed by the prejudicial effect to the defendant.

Finally, in the context of this case, the court concluded that the admission of the other acts evidence was reversible error. The court found that there is a reasonable probability that the other acts evidence contributed to the defendant's convictions. Accordingly, it concluded that the state had not met its burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. See State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).

Justice Crooks filed a dissenting opinion in which Justices Steinmetz and Wilcox joined.

Stacking ­ "Same Loss" ­ Interest on Judgment

Weimer v. Country Mutual Insurance Co., No. 96-1440 (filed 20 Mar. 1998)

A dump truck with an attached trailer, driven by Ronald Trace, crossed the center line and struck a vehicle driven by Weimer. Country Mutual insured both the dump truck and the trailer for up to $100,000 in bodily injury for each person. Country Mutual offered to pay Weimer $100,000, which he rejected. A jury found that Trace was 75 percent causally negligent and assessed damages at over $800,000. The trial judge ruled that Country Mutual was liable to Weimer for its policy limits of $100,000 and also ruled that the insurer was liable for interest on the $100,000 limits, but not on the entire $800,000 judgment.

The court of appeals affirmed the order limiting Country Mutual's liability to the $100,000 limits, but reversed on the interest determination. Country Mutual's "offer" to pay $100,000 did not constitute a sufficient "tender"; hence, the insurer was liable for post-verdict interest on the entire judgment.

The supreme court, in an opinion written by Justice Crooks, affirmed in part and reversed in part. First, the court agreed that the coverage on the truck and the trailer could not be stacked. Trace paid separate premiums for both the truck and the trailer; thus, the coverage constituted separate policies. They did not, however, cover the "same loss" within the meaning of Wis. Stat. section 631.43(1). The risks to the truck and the trailer were not the same, even though both vehicles were involved in the accident in this case. The majority opinion cited examples of how the trailer might cause damage apart from the truck's involvement.

Second, the court addressed the post-verdict interest issue. Under the policy's terms, Country Mutual was responsible for interest on the entire judgment without restriction to the policy's limits. The insurer escaped such liability, however, because it had "tendered" its policy limits before trial. The offer was formal because "it was presented to Weimer in writing and signed by counsel for Country Mutual." The offer was extended in accordance with the insurer's liability under the policy. The insurer's request for a release of itself and its insured was not fatal: "language requiring release of an insured for settlement is an integral part of Country Mutual's duty to defend Trace."

Chief Justice Abrahamson, joined by Justice Bablitch, dissented on the stacking issue.

This column summarizes all decisions of the Wisconsin Supreme Court. 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.