Supreme Court Digest

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

Business Law

Wisconsin's Business Closing and Mass Layoff Law - Definition of "Business Closing"

State v. T.J. International Inc., 2001 WI 76 (filed 28 June 2001)

Defendant Norco Windows Inc. sold its window manufacturing plant in Hawkins, Wis., to defendant Jeld-Wen Inc. The plant continuously operated without interruption during the transfer of ownership, and Jeld-Wen hired all but 47 of the 396 Norco employees who applied for jobs with the new ownership.

The employees' collective bargaining representative filed a complaint with the Department of Workforce Development, alleging a violation of Wisconsin's Business Closing and Mass Layoff Law. See Wis. Stat. § 109.07 (1995-96). This statute requires employers to give 60-days' notice to their employees and certain government officials of any "business closing," which is defined as a "permanent or temporary shutdown of an employment site."

The department concluded that the sale in this case constituted a "business closing" under the statute, and ordered both the seller and the buyer to pay penalties for failure to give notice. The circuit court agreed, but the court of appeals reversed.

In a unanimous decision authored by Justice Sykes, the supreme court affirmed the court of appeals. It concluded that the definition of "business closing" in section 109.07(1)(b) does not include the sale of business assets where there is no actual operational shutdown - permanent or temporary - of the employment site. "Where, as here, the transfer of ownership continues rather than interrupts or ceases the operation of the employment site, there is no 'business closing' under the statute, and no 60-day notice of the sale is required" (¶ 4).

Civil Procedure

Appeals - Remand - Substitution

Jensen v. Wisconsin Patients Compensation Fund, 2001 WI 66 (filed 19 June 2001)

This was a motion to reconsider part of an earlier decision in which the court held that an attorney's pro hac vice status could not be withdrawn without notice and an opportunity to respond. A defendant-respondent sought "clarification" of the court's order that on remand the plaintiffs-appellants had no right to substitute under Wis. Stat. section 801.58(7). In a terse, per curiam opinion, the supreme court stated that the law relating to substitutions on remand is controlled by State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30, which the circuit court is to apply. Dissenting, Chief Justice Abrahamson agreed "with the State Bar and the Litigation Section that counsel should be given an opportunity to be heard on the issue of substitution and that the appellate court rather than the circuit court should apply Findorff" (¶ 6).

Criminal Law

Theft of Firearms - Multiplicity

State v. Trawitzki, 2001 WI 77 (filed 29 June 2001)

During the course of a residential burglary the defendant and his co-actors took 10 firearms from the home. The next day the defendant was involved in concealing five of those stolen firearms near a bridge. Among the charges lodged against the defendant were 10 counts of theft of a firearm and five counts of concealing the stolen firearms.

A jury found the defendant guilty on all charges. His post-conviction motion challenging the structure of charges as multiplicitous was denied by the circuit court. The trial court also denied a post-conviction challenge to the effectiveness of defense counsel relating to counsel's failure to impeach three prosecution witnesses with the existence and number of their prior criminal convictions. The court of appeals affirmed.

In a majority decision authored by Justice Crooks, the supreme court affirmed the court of appeals. The court first considered whether the 10 theft of a firearm charges and the five concealing a stolen firearm charges were multi-plicitous. These charges were all brought under the general theft statute (Wis. Stat. section 943.20(1)(a)) and that part of the theft statute which provides a special penalty when the property stolen is a firearm (section 943.20(3)(d)5).

The majority rejected the defendant's claim of multiplicity. To determine whether charges are multiplicitous, a court must determine whether the charged offenses are identical in law and in fact. If they are identical in law and in fact, they are multiplicitous and in violation of the protection against double jeopardy. If the charged offenses are not identical in law and in fact, a court must further determine whether the Legislature intended multiple prosecutions for the charged offenses.

In this case, though the charges are identical in law, the majority concluded that they were not identical in fact, because each theft charge and each concealment charge required proof of an additional fact that the other charges did not, namely, the identity of the individual firearm involved in each count.

Because the charges against the defendant were not identical in fact, the court presumed that the Legislature intended separate charges for the theft and for the concealment of each firearm. The defendant could rebut this presumption only by a clear indication of legislative intent to the contrary which, in this case, he was unable to do.

Finally, the court held that the defendant's trial counsel was not ineffective for failing to impeach the state's witnesses with their criminal records, because the defendant did not establish that this failure was prejudicial to his defense. Said the court, confidence in the outcome of the trial was not undermined by defense counsel's failure to impeach. See 46.

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

Criminal Procedure

Costs Taxable to the Defendant - Expense of Producing the Defendant from Prison for Circuit Court Appearances

State v. Dismuke, 2001 WI 75 (filed 28 June 2001)

While the defendant was serving a sentence in prison, he was repeatedly transported to Milwaukee County on orders to produce for various court appearances on two new charges. He eventually was convicted and the judgment of conviction in the new case set costs at $957.20. Most of this amount was attributable to sheriff's department costs for executing the orders to produce the defendant from prison. The court of appeals affirmed. The supreme court, in a unanimous decision authored by Justice Sykes, reversed.

Wis. Stat. section 973.06 provides that costs taxable against the defendant include "fees of officers allowed by law." Construing the term "fees" in a related subsection of this statute, the court had previously held that the term includes only those sums "ordinarily charged to and payable by another," not internal operating expenses of a governmental unit. See State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996).

The record in this case contained conflicting information and no evidence about whether the expenses associated with executing orders to produce are generally "charged to and payable by another," or are merely internal operating expenses of the Milwaukee County Sheriff's Department. The record was similarly underdeveloped and unclear on the specific amounts assessed against the defendant in this case.

Accordingly, the court held only that its earlier decision in Ferguson applies to the determination of taxable "fees of officers allowed by law" under section 973.06(1)(a). This requires a determination of whether the expenses associated with the execution of orders to produce are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. If the former, they are taxable, provided they are "allowed by law," which requires a further determination of whether the actual assessments in this case were consistent with Wis. Stat. section 814.70, which deals with sheriff's fees for service of process. See 26. The case was remanded to the circuit court for further proceedings consistent with this decision.

Collateral Attack on Prior Convictions - Denial of Right to Counsel

State v. Peters, 2001 WI 74 (filed 28 June 2001)

The defendant was charged with a fifth offense of operating after revocation of license (OAR). In order to avoid the progressively higher penalties that flow from repeat OAR offenses, he moved to invalidate his second OAR conviction, alleging that the no-contest plea upon which it was based was entered without counsel by closed-circuit television from the county jail, in violation of his statutory and constitutional rights.

The circuit court entertained the collateral challenge and held that any error related to the television plea was harmless. The court of appeals affirmed, concluding that while the defendant's statutory procedural rights had been violated, no constitutional violation requiring reversal had occurred. The supreme court, in a unanimous decision authored by Justice Sykes, reversed the court of appeals.

The case concerns the extent to which a defendant may collaterally attack a prior conviction in a subsequent criminal case where the prior conviction is used to enhance the sentence for the subsequent crime. The general rule is that a defendant may not collaterally attack the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges a violation of his constitutional right to counsel. See State v. Hahn, 2000 WI 118 (modified by State v. Hahn, 2001 WI 6). Because the current OAR prosecution is predicated in part on a prior OAR conviction that was obtained when the defendant was not represented by counsel, the court concluded that this case falls within the right-to-counsel exception to the general rule against collateral attacks on prior convictions used to enhance subsequent penalties. The supreme court reversed, and remanded the case to the circuit court for a consideration of whether the record in the second offense OAR case reflects a knowing and voluntary waiver of counsel.

The court did not address the defendant's challenge to the constitutionality of closed-circuit television guilty/no-contest pleas.

Employee Benefits

Wisconsin Retirement System - Constitutionality of 1999 Wisconsin Act 11 Changes to Pension System

Wisconsin Professional Police Association Inc. v. Lightbourn, 2001 WI 59 (filed 12 June 2001)

In this original action the petitioners challenged the constitutionality of portions of 1999 Wisconsin Act 11 as amended by Act 12 ("Act 11"). Together, these two acts made numerous changes in the Wisconsin retirement system impacting the pension interests of more than 460,000 participants in the system, as well as the fiscal responsibilities of the State of Wisconsin and all government employers within this state whose past or present employees are participants in the system.

In a lengthy majority decision authored by Justice Prosser, the supreme court concluded that Act 11 is constitutional. It was approved by the requisite number of votes in the Legislature. The Act does not take petitioners' property without just compensation, nor does it impair the obligations of their contract with the State of Wisconsin. Further, the Act does not violate the fundamental principles of Wis. Stat. chapter 40 or any right preserved in section 40.19(1), nor does it violate trust principles. Accordingly, the court denied the declaratory relief sought by the petitioners and lifted an injunction previously issued so that Act 11 may be enforced.

Justice Bablitch filed an opinion concurring in part and dissenting in part.

Chief Justice Abrahamson filed a dissent that was joined by Justice Bradley.

Milwaukee County Employees Vested in County Pension System - Discharged Employees - No Denial of Pension Without Due Process Hearing

Milwaukee District Council 48 v. Milwaukee County, 2001 WI 65 (filed 15 June 2001)

The Milwaukee County Employees' Retirement System is the only county-operated retirement system in Wisconsin. Under county ordinances a Milwaukee County employee has a property interest in a deferred vested pension after 10 years of creditable service, unless the employee is terminated for "fault or delinquency." This contingency - termination for "fault or delinquency" - nullifies the employee's pension eligibility, irrespective of the length of the employee's service.

As described by the court, the principal issue in this case relates to procedure: May Milwaukee County deny a pension to an employee who has 10 years of creditable service after terminating the employee for "cause" (following a due process hearing), without also holding a due process hearing to determine whether the employee was terminated for "fault or delinquency"?

The enabling state legislation for the Milwaukee County Retirement System and the controlling county ordinance draw a distinction between "cause" and "fault or delinquency." The county ordinance identifies some 46 grounds of "cause" to discharge a county employee, and there was no dispute that county employees who have passed their probationary period have a protectable property interest in their jobs because state law precludes their discharge without "cause." But the ordinance does not clarify whether all 46 grounds, plus others that might serve as the basis for discharge, constitute the "fault or delinquency" that would need to be found as a statutory prerequisite for denial of a vested pension.

In a unanimous decision authored by Justice Prosser, the supreme court concluded that Milwaukee County may not deny a pension to an employee who has satisfied the minimum requirements of credible service for a deferred vested pension without first affording the employee the procedural due process of a hearing to determine whether the employee is being or was terminated for "fault or delinquency." The hearing must be preceded by fair notice and the county must establish standards for "fault or delinquency." See 62.

The court indicated that it was not holding or implying that the county must hold a completely separate due process hearing for the denial of a pension. The requirements of procedural due process are flexible enough that the county may offer a hearing that considers both "cause" for discharge and "fault or delinquency." See 63.

Employment Law

Discharge of Employee-at-will - Public Policy Exception

Batteries Plus LLC v. Mohr, 2001 WI 80 (filed 29 June 200l)

Batteries Plus, a retail seller of batteries, sued the defendant, one of its former at-will employees, for repayment of past wages. It claimed that it had accidentally overpaid the defendant approximately $11,500 for mileage expenses when the defendant was a commercial sales specialist for the company. The defendant counterclaimed, alleging that Batteries Plus wrongfully discharged him when he refused to agree to reimburse the company, through deductions from his future wages, for the alleged overpayment.

The jury returned a verdict in favor of the defendant, awarding him damages for wrongful discharge and underpayment of wages. In allowing the defendant's counterclaim, the circuit court ruled that Wis. Stat. section 103.455 (1995-96) provided a well-established and important public policy basis to preclude Batteries Plus from lawfully discharging the defendant. The court of appeals affirmed. In a majority decision authored by Justice Prosser, the supreme court reversed.

The jury found that the defendant was an employee-at-will. In Wisconsin, the employment-at-will doctrine is an established general tenet of workplace relations. The doctrine permits an employer to discharge an employee for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong. The supreme court has recognized a narrow "public policy exception" to the employment-at-will doctrine, allowing an employee a cause of action "for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law." See Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 572-73, 335 N.W.2d 834 (1983).

In this case the defendant relied upon section 103.455 as the basis for his argument that the public policy exception should be applied to him. This statute provides that "no employer shall make any deduction from the wages due or earned by any employee ... for defective or faulty workmanship, lost or stolen property, or damage to property ... ." The present case did not involve the type of work-related loss described in the statute; rather, it was a disagreement about an alleged overpayment of expenses. The majority held that neither the letter nor the spirit of section 103.455 covers the situation in which an employer claims that it overpaid its employee by mistake and the employee gives the employer no choice but to go to court to recover the money. Accordingly, the court concluded that the defendant could not maintain an action for wrongful discharge under these circumstances.

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

Motor Vehicle Law

Habitual Traffic Offenders - Effect of Rescission of HTO Status - Wis. Stat. Section 351.09

State v. Hanson, 2001 WI 70 (filed 26 June 2001)

On four occasions in 1996, the defendant was convicted of operating a motor vehicle after his license had been revoked or suspended (OAR/OAS), contrary to Wis. Stat. section 343.44(1) (1995-96). [The OAR/OAS convictions referred to in this case occurred prior to the separation of OAR and OAS into distinct violations, which occurred as a result of legislation that took effect on Aug. 1, 2000.] As a consequence of the four prior OAR/OAS convictions, the defendant was classified as a habitual traffic offender (HTO) in December 1996. His HTO classification resulted in the revocation of his driving privileges for five years.

While still subject to the HTO revocation, and perhaps to other suspensions and revocations, the defendant was caught illegally driving a fifth time in October 1998. He was charged with his fifth violation of the OAR/OAS law and the complaint alleged that his OAR/OAS sentence was subject to enhancement due to his HTO classification. This enhancement subjected him to an additional $5,000 fine and a possible 180 additional days of imprisonment.

Following issuance of the complaint, the defendant pursued a rescission of his HTO status through the Department of Transportation (DOT). As part of a 1997 legislative overhaul of the offense of OAR/OAS, which included the removal of OAR/OAS as a predicate offense that may be used to classify a driver as an HTO, DOT was authorized to redetermine a driver's HTO status without consideration of OAR/OAS convictions. In February 1999, DOT rescinded the defendant's HTO status, which was based on his prior OAR/OAS convictions, pursuant to Wis. Stat. section 351.09.

Subsequent to the rescission of his HTO status, the defendant entered a plea of no contest to the charge of OAR (fifth offense) as an HTO, as alleged in the criminal complaint. The circuit court accepted his plea of no contest, imposed a fine of $300, and sentenced the defendant to 20 days in jail.

Thereafter the defendant pursued post-conviction relief in which he challenged the imposition of a term of imprisonment for his conviction. He requested that the circuit court substitute the criminal sentence with a civil forfeiture, his argument being premised on the rescission of his HTO status. The circuit court denied the motion. The court of appeals affirmed, concluding that the defendant had waived the right to challenge his conviction and sentence by the entry of his no contest plea.

In a majority decision authored by Justice Bradley, the supreme court reversed the court of appeals. It concluded that a criminal sentence based solely upon the defendant's HTO status, which was rescinded under section 351.09 prior to his conviction, is a sentence in excess of that authorized by law and is invalid under section 973.13. However, given the state of the record, the court could not determine whether the defendant's driving record supported a criminal sentence even without consideration of his HTO status and, accordingly, remanded the case to the circuit court for such determination.

In reaching its decision in this case, the majority rejected the state's claim that the defendant waived the challenge to the sentence by entering a plea of no contest. Wis. Stat. section 973.13 provides that when a court imposes a sentence greater than that authorized by law, any excess sentence is void. In this case, if the defendant received a criminal penalty based solely on his HTO status, which was rescinded by DOT prior to his conviction, such a sentence is in excess of that authorized by law. To apply the guilty/no contest plea waiver rule would ignore the dictate of section 973.13. Accordingly, the majority reached the merits of the defendant's appeal.

Justice Crooks filed a dissenting opinion that was joined by Justices Wilcox and Prosser.

Real Property

Regulatory Takings - Categorical and Ad Hoc Analyses

R.W. Docks & Slips v. State, 2001 WI 73 (filed 28 June 2001)

R.W. Docks, a general partnership in the business of developing marinas, is the riparian owner of 1,100 feet of frontage along Lake Superior in Bayfield, Wis. In 1969 it began building a marina on this land. The marina was built in stages, eventually containing 201 boat slips, related recreational facilities, and various other improvements.

Several years later Docks applied to the Department of Natural Resources for a permit to dredge 20,000 cubic yards of material from the lakebed, a necessary prerequisite to the completion of the remaining 71 boat slips in the project. Most of this request was denied and, given the denial, the final 71 boat slips could not be built. The permit was denied primarily for environmental reasons, because a small emergent weed bed had developed near the shore within the marina.

After exhausting administrative appeals and judicial review of the DNR's action, Docks sued the DNR in circuit court alleging an unconstitutional taking of its property without just compensation. The circuit court granted DNR's motion for summary judgment. The court of appeals affirmed.

In a unanimous decision authored by Justice Sykes, the supreme court affirmed. The issue before the court was whether the DNR's denial of the final dredging permit constituted a regulatory taking of Docks' property without just compensation.

Both the Fifth Amendment to the U.S. Constitution and the Wisconsin Constitution provide that private property shall not be taken without just compensation. A "taking" need not arise from an actual physical occupation of land by the government. A governmental regulation of property, if the regulation goes too far, can also be recognized as a taking.

In determining whether a regulatory restriction "goes too far," courts generally prefer to engage in ad hoc factual inquiries. However, at least two discreet categories of regulatory action have been recognized as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first includes regulatory actions that bring about some form of physical "invasion" of private property. The second includes regulatory actions that deny "all economically beneficial or productive use of land."

In this case the DNR's denial of the dredge permit did not bring about a physical invasion of private property. Nor did it deny Docks all economically beneficial or economic use of its property, or substantially all practical use of its property, inasmuch as Docks retained the economic benefit and use of the 201 boat slips and related recreational facilities at the marina.

This conclusion left the court with performing the traditional ad hoc factual takings inquiry, which involves an analysis of the nature and character of the governmental action, the severity of the economic impact of the regulation on the property owner, and the degree to which the regulation has interfered with the property owner's distinct investment-backed expectations in the property. In this case, because the DNR's action affected only riparian rights, which are subordinate to the public trust doctrine (under which the state holds title to the beds of lakes, ponds, and rivers in trust for the public), and affected only a small portion of the marina development as a whole, the court concluded that denial of the permit cannot be said to have resulted in the sort of severe economic impact or interference with distinct investment-backed expectations as to constitute a regulatory taking under traditional ad hoc takings analysis.

Seized Property

Return of Seized Property - Wis. Stat. Section 968.20 - In Rem Proceeding

City of Milwaukee v. Glass, 2001 WI 61 (filed 13 June 2001)

Wis. Stat. section 968.20 governs the return of property seized by the authorities either pursuant to a search warrant or seized without a search warrant. In this case the plaintiff filed a petition for the return of property seized by the Milwaukee Police Department from his garage. The city could not return the seized property because it no longer had possession of it. After a series of hearings, the circuit court awarded the plaintiff approximately $1,600, which the plaintiff had established as the fair market value of the property seized.

The court of appeals reversed the circuit court order, concluding that section 968.20 contemplates only a return of seized property and does not authorize a circuit court to award money damages for failure to return the seized property.

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals. Classifying a section 968.20 proceeding as "in rem" in nature, the court concluded that the statute does not authorize a circuit court to award money damages against the city when the city cannot return the seized property because it no longer has possession of that property. A judgment in an in rem proceeding is valid only against the specific property and not against a defendant or a defendant's other assets. The supreme court also concluded that the circuit court did not gain personal jurisdiction over the city by virtue of its appearances in this matter. No summons was ever served on the city and the city repeatedly contested the circuit court's authority to award money damages at the various hearings in this case.

Seized Property - Wis. Stat. Section 968.20(1m)(b) - Return of Dangerous Weapon - Commission of a Crime Involving Use of the Dangerous Weapon

State v. Perez, 2001 WI 79 (filed 29 June 2001)

The defendant was convicted of carrying a concealed and dangerous weapon in his van. He thereafter filed a motion pursuant to Wis. Stat. section 968.20 seeking the return of all items seized at the time of his arrest, including several firearms. He claimed that he was in Wisconsin on business at the time of the incident and was licensed to carry concealed weapons in his home state of Florida for the purpose of hunting. The circuit court granted the motion and the court of appeals affirmed.

The supreme court, in a majority decision authored by Justice Prosser, reversed the court of appeals. The issue before the court was whether a person who is convicted of carrying a concealed and dangerous weapon under Wis. Stat. section 941.23 has "committed a crime involving the use of the dangerous weapon," as that phrase is used in section 968.20(1m)(b), so that a dangerous weapon seized from the person may not be returned.

The court concluded that a person convicted of going armed with a concealed and dangerous weapon contrary to section 941.23 has "committed a crime involving the use of the dangerous weapon" and that the return of the dangerous weapon or weapons seized from the person is prohibited by section 968.20.

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

Sexually Violent Persons

Appellate Rights - Right to Counsel - Ineffective Assistance

State of Wisconsin ex rel. Seibert v. Macht, 2001 WI 67 (filed 19 June 2001)

Seibert was found to be a sexually violent person under Wis. Stat. chapter 980 and petitioned for supervised release. After the trial court denied the petition, the court of appeals dismissed his appeal as untimely and later rejected his petition for a writ of habeas corpus which contended that this right to effective assistance of counsel had been violated. The supreme court accepted Seibert's pro se petition for review and appointed counsel.

The supreme court, in an opinion written by Justice Wilcox, reversed the court of appeals. Addressing two issues, the court "adopt[ed] the prophylactic framework of Anders and its progeny for Chapter 980 cases" (¶ 20). First, due process and equal protection guarantee that "an indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her request for supervised release" (¶ 1). Second, based on the "unique facts" presented in this case, the court held that ineffective assistance of counsel occurred when the notice of appeal was filed one day late in the trial court. Moreover, a string of supreme court cases provide that "the court of appeals cannot conduct an independent review for error where the individual lacks requested representation, whether that representation encompasses briefing on the merits or an Anders brief" (¶ 2). The individual need not demonstrate prejudice at an evidentiary hearing (¶ 19).

Appeals - Voluntary Dismissal

State v. Schulpius, 2001 WI 69 (filed 22 June 2001)

Schulpius was found to be a sexually violent person. He challenged his chapter 980 commitment on numerous grounds after authorities were unable to accommodate the court's order for supervised release. After a hearing, the circuit court ordered Schulpius released from confinement at the Wisconsin Resource Center. The state petitioned for leave to appeal a nonfinal order, which the court of appeals granted, and Schulpius then petitioned the supreme court for bypass. While the appellate matters were pending, the circuit court granted the state's motion to reconsider, ruled that Schulpius was no longer suitable for supervised release, and ordered him committed to institutional care. The state then filed a notice of voluntary dismissal in the supreme court. Complicating matters further, while this appeal was pending, the U.S. Supreme Court issued its decision in Seling v. Young, 531 U.S. 250 (2001). The Wisconsin Supreme Court ordered supplemental briefs.

An equally divided Wisconsin Supreme Court split over whether to accept the state's notice of voluntary dismissal (Justice Prosser did not participate). The court vacated its order granting bypass and remanded the case to the court of appeals in order to promote the "efficient resolution of this appeal."

Torts

Jury Trial - Bifurcation of Issues - Recreational Immunity - Social Guest

Waters v. Pertzborn, 2001 WI 62 (filed 14 June 2001)

The plaintiff, age 10, was severely injured while sledding at the home of the defendant neighbors. The circuit court rejected defendant's summary judgment motion, because an issue of fact existed as to whether the plaintiff was a "social guest" and therefore within an exception to recreational use immunity. The court also ordered separate trials before different juries on the issues of liability and damages. The plaintiffs were granted leave to file an interlocutory appeal and the supreme court accepted this case on certification.

The supreme court, in an opinion written by Justice Bradley, reversed in part and affirmed in part. First, and most significant, the court held that Wisconsin law does not permit separate trials on the issues of liability and damages before different juries. The legislative history of Wis. Stat. section 805.05(2) conclusively revealed that bifurcating such issues in separate trials before different juries was closely considered and deliberately rejected (¶ 20-24). Furthermore, such bifurcation is also precluded by Wis. Stat. section 805.09(2), which requires that the same five-sixths of a jury agree to all questions necessary to sustain a claim in order for a jury's verdict to be valid. Put differently, the bifurcation order in this case flatly collided with the five-sixths' statutory mandate. Finally, neither the case law nor Wis. Stat. section 906.11 compelled a different conclusion. (The court distinguished the very different procedural posture of an appellate court's remand for trial limited to particular issues, which would necessarily involve different juries addressing parts of the same claim.)

The supreme court then turned to the cross-appeal filed by defendants, which argued that recreational use immunity barred the claim. In sum, the supreme court upheld the lower court's determination that summary judgment was improper. On this record the social guest exception arguably trumped the recreational use immunity provided by Wis. Stat. section 895.52. An 11-year-old girl could be an "occupant" of the home authorized to "invite" guests onto the property, a purely factual inference that found support in the evidence. Nor was it material that the plaintiff was not specifically invited to sled because section 895.52(6)(d) only requires an invitation for the "occasion." (Whether the invitation had "expired" presented a question of fact for trial.) Finally, the defense argued that the social guest exception did not apply because the plaintiff was injured in the street, not on their property. The court declined to construe the statute so mechanistically as to have to calculate "the trajectory of Christopher's downhill descent in a manner that would ignore the laws of physics" (¶ 50).

Recreational Immunity - Adjacent Property - Easements - Exceptions

Urban v. Grasser, 2001 WI 63 (filed 14 June 2001)

Plaintiff Urban was injured while walking across property owned by David G. when a dog chased him and he fell from a wall onto a concrete driveway. Urban kept his boat docked on adjacent property owned by David's father, Paul G. Paul held an easement for ingress and egress over David's property pursuant to a written agreement. Moreover, Paul had granted Urban permission to use David's property in accessing the boat, which was the only way to get to the boat. Urban sued David and the circuit court granted David's motion for summary judgment, dismissing the complaint based on recreational use immunity.

The supreme court, in an opinion written by Justice Bablitch, affirmed in an opinion that emphasized the fact-specific nature of recreational immunity cases and expressed frustration over the judicial system's inability to craft a useful test from the statute's vagaries (¶ 12-13). Until the Legislature clarifies Wis. Stat. section 895.52, courts are left to launder a list of nebulous factors including the intrinsic nature of the activity, its purpose, its consequences, and the user's intent, as well as the nature of the property and the property owner's intent, if any.

Applying this analysis to the summary judgment record, the court first determined that David was an "owner" within the statute's meaning despite Paul's easement. (The "dominant owner" obtains only a right to use the land, not an "estate" in the property.) Second, Urban was engaged in recreational activity when he was injured. Urban was walking across David's property in order to access his boat via the only available route. Thus, the act of walking was "inextricably connected" to the boat and hence a recreational activity.

Finally, the court found that no exceptions were applicable to recreational use immunity. Urban was not David's "social guest" because Paul permitted his use of the easement, not David. Thus, "permissive entrants" fall outside the social guest exception. Nor did Urban fall within the "profit" exception under Wis. Stat. section 895.52(6)(a). Although Urban bought the boat from Paul for $4,000, nothing indicated that Paul's permission to use the boat slip affected the purchase price.

Justice Wilcox concurred that David was entitled to recreational immunity but rejected the majority's position that courts should consider the nature of the property and the property owner's subjective intent, a position he explained in his dissent to Minnesota Fire and Cas. Ins. Co. v. Paper Recycling of La Crosse, 2001 WI 64 (see below).

Chief Justice Abrahamson, joined by Justice Bradley, dissented on grounds that immunity does not extend to owners of servient estates, such as David. Furthermore, Urban was not engaged in any recreational activity while on David's property.

Recreational Immunity - Child's Play - Nature of the Property - Owner's Purpose

Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse, 2001 WI 64 (filed 14 June 2001)

Three young boys, one age 11, entered the property of a recycling plant, where they crawled through stacks of baled paper, lit matches, and played in the labyrinth. The 11-year-old boy died in a resulting fire. In separate but related actions, two circuit court judges from the same county reached opposite conclusions about whether the recycler was entitled to recreational immunity under Wis. Stat. section 895.52(2). The court of appeals held that the recycler was not entitled to immunity.

The supreme court, in an opinion written by Justice Crooks, affirmed. The court first addressed whether the boys were engaged in "recreation" within the statute's meaning. Every outdoor activity is not an immunized recreational activity. The statute broadly defines recreation as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure" and then provides 28 illustrations plus a catch-all that embraces all "substantially similar" activities. Most important, Minnesota Fire explicitly held that in determining whether an activity is "recreation" courts should examine the nature of the property and the owner's purpose. Here the company leased the property solely to operate its recycling business, which is a far cry from any of the activities listed in section 895.52(2). Nor was the children's play dispositive. Applying an objective "adult" standard, the court held that a "reasonable adult would not consider crawling around lighting fires to be a recreational activity" (¶ 31). Nothing about the intrinsic nature, purpose, and consequence of this activity was substantially similar to the enumerated forms of recreation, such as exploring caves. Finally, the court considered the stare decisis effect of its holding on the doctrine of attractive nuisance; namely, a contrary holding might give commercial property owners less incentive to monitor their property and prevent children from trespassing.

Justice Bradley, joined by Chief Justice Abrahamson, concurred and wrote separately to stress the difficulties courts have encountered in interpreting section 895.52 and to invite the Legislature to "revisit" the matter.

Justice Wilcox, joined by Justice Prosser, dissented based on the majority's construction of the statute, particularly its reliance on the nature of the property as a "significant factor."

Emotional Distress - Bystanders - Injured Animals - Frivolous Claims

Rabideau v. City of Racine, 2001 WI 57 (filed 12 June 2001)

Police shot and killed the plaintiff's dog while she watched. She brought this tort action against the city. The circuit court granted summary judgment to the city, dismissed the complaint, and also found that the claim was frivolous. The court of appeals affirmed.

The supreme court, in an opinion written by Justice Bablitch, affirmed in part and reversed in part. First, the court found that the plaintiff could not bring a claim for negligent infliction of emotional distress because she was not related to the "victim" as spouse, parent-child, grandparent-grandchild, or sibling. Moreover, public policy considerations, particularly the lack of any just stopping point, foreclosed a claim for negligent damage to "property" such as pet animals. Second, the defense was entitled to summary judgment on her claim for intentional infliction of emotional distress. The plaintiff did state a claim, however, for damages for property loss (that is, her dead dog). The court also found that the record raised a material fact as to whether the officer was lawfully entitled to shoot plaintiff's pet. Finally, the supreme court overturned the trial court's finding that the action was frivolous. The complaint did, after all, encompass a proper claim for property loss and plaintiff's attorney proffered the other, albeit unsuccessful, claims in good faith.

Vicarious Liability - Medical Malpractice - Nurses and Doctors - "Captain of the Ship" Theory

Lewis v. Physicians Ins. Co., 2001 WI 60 (filed 13 June 2001)

In this medical malpractice action, the plaintiff alleged that the surgeon was vicariously liable for the failure of two hospital nurses to account accurately for sponges used during his gallbladder surgery (one was left in his abdomen). As a county facility, the hospital's statutory liability was limited to $50,000 for the nurses' negligence, which was paid to the plaintiff. The parties stipulated that the surgeon was not negligent. The sole remaining claim was that the surgeon was vicariously liable for the nurses' negligence. The circuit court concluded that the surgeon was liable, but the court of appeals reversed.

The supreme court, in an opinion written by Justice Wilcox, affirmed the court of appeals in a decision that addresses the tensions between the "basic principle of individual responsibility" and the "severe exception" to that rule posed by vicarious liability (¶ 11). The surgeon did not employ either nurse, which eliminated respondeat superior as a theory of vicarious liability, and there was no claim that they were "borrowed servants." The court declined to read Fehrman v. Smirl, 25 Wis. 2d 645 (1964) (Fehrman II) as "imposing vicarious liability on a doctor whenever the doctor continues to actively care for and participate in the treatment of the patient" (¶ 13). Nor did Fehrman II support an "alternative liability" theory or a new species of tort labeled the "continuing active management" theory. In short, existing Wisconsin law provided no viable doctrine supporting the surgeon's vicarious liability.

The supreme court next addressed whether Wisconsin law should adopt some variant of a "captain of the ship" theory of liability. It declined to do so. The doctor as "captain of the ship" reflects an inaccurate, outmoded view of hospitals as mere places where doctors treat and care for patients instead of their vital role in the billion dollar health care industry (see 24).

Chief Justice Abrahamson, joined by Justice Bradley, concurred in the mandate and wrote separately to emphasize the limits of the court's "broad language," particularly as it related to a surgeon's duty to supervise and control assisting nurses and personnel.

Psychotherapists - Negligent Treatment - Confidentiality - Chapter 655 - Statute of Limitations

Johnson v. Rogers Memorial Hospital Inc., 2001 WI 68 (filed 19 June 2001)

In 1991 the plaintiffs' daughter, Charlotte, began receiving psychotherapy at Rogers Memorial Hospital (RMH). She was later admitted as an inpatient, which plaintiffs agreed to pay for. During treatment, Charlotte "recalled" having been physically and sexually abused by her parents and ceased her relationship with them. In 1996 her parents sued RMH and other providers on a variety of theories for implanting false memories in their daughter. The circuit court dismissed the complaint and the court of appeals affirmed.

The supreme court, in an opinion written by Justice Bablitch, reversed. The central issue in this case, whether the parents of an adult child can maintain a third-party professional negligence action against therapists based on allegations of planting false memories, was decided in the affirmative in Sawyer v. Midelfort, 227 Wis. 2d 124 (1999), while this case was pending. Nonetheless, the court of appeals found Sawyer distinguishable because the claims in this case imposed a "significant collateral burden" on the confidentiality of the therapist-patient relationship.

Justice Bablitch addressed three issues. First, as to the potential burden of such claims on the confidentiality of the therapist-patient relationship, the court held that the factual record was insufficiently developed to permit a public policy analysis. The record did not reveal whether Charlotte waived the privilege or whether it even applied because of the plaintiffs' participation in various sessions. Second, the plaintiffs are permitted to maintain their claim against RMH based on breach of contract; "chapter 655 is not the exclusive remedy for such claims" (¶ 20). Finally, the record did not dispositively resolve whether the statute of limitations barred the action. The case was remanded to the circuit court.

Zoning

Variances - Use and Area - DNR

State v. Outagamie County Board of Adjustment, 2001 WI 78 (filed 29 June 2001)

In 1984 the Warnings built a home on their land. Although they built according to their permit, the basement was about four feet below the 100-year regional flood elevation and six feet below the flood protection elevation in violation of state regulations and county zoning ordinances. In 1994 the Warnings sought permission to build a sun porch. Eventually, they applied for an "after the fact" variance for their nonconforming basement from the county board of adjustment. The DNR opposed the request. The board unanimously granted the variance. The state sought certiorari review in the circuit court, which affirmed the board and rejected the DNR's contention that Wis. Admin. Code § NR 116.13(2) prohibited such variances.

The court of appeals reversed, based on its construction of State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396 (1998), and § NR 116.13(2). Clearly troubled by the result, the court of appeals noted the anomaly of using zoning laws designed to protect basements in a way that would likely authorize the destruction of one that had been trouble- free since 1984. Kenosha County, according to Justice Sykes' opinion in this case, had "eliminated the previous distinction between area and use variances and established a 'no reasonable use of the property' standard for the issuance of either type of variance, thereby making all variances almost impossible to obtain" (¶ 4).

The Wisconsin Supreme Court reversed the court of appeals. Space restrictions permit only a summary of the court's various opinions. Justice Sykes wrote the lead opinion. Joined by Justices Bablitch and Prosser, she would overrule Kenosha County because its "radical change in variance law was unwarranted." Justice Crooks and Justice Wilcox saw no need to overrule Kenosha County, but concurred in the mandate because they found no impediment to the Warnings' variance. Four members of the court joined Justice Sykes in concluding that "because Wis. Admin. Code § NR 116.13(2) categorically prohibits variances for any deviation from basement elevation requirements in floodplains, it inexorably conflicts with the discretionary authority over variances vested in local boards of adjustment by state statute, and therefore must give way" (¶ 5).

Justice Prosser filed a separate concurring opinion that explained his reasons for joining the lead opinion.

Chief Justice Abrahamson, joined by Justice Bradley, dissented.