Wisconsin
Lawyer
Vol. 81, No. 2, February
2008
Court of Appeals Digest
This column summarizes selected
published opinions of the Wisconsin Court of Appeals. 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.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Civil Procedure
Late Service of Answer - Default Judgment
Keene v. Sippel,
2007 WI App 261 (filed 14 Nov. 2007) (ordered published
19 Dec. 2007)
The plaintiffs filed suit against the defendant claiming damages
resulting from the defendant's alleged improper work in building the
plaintiffs'
home. The defendant was served with an authenticated copy of the summons
and
complaint; the summons advised him that he had 45 days to respond. The
defendant did not file his answer and counterclaim until 58 days after
service and
65 days after the filing of the summons and complaint. Subsequently he
filed
a notice of motion and motion for enlargement of time. Finding no
excusable
neglect, the circuit court denied the defendant's motion and granted the
plaintiffs' motion for default judgment. However, the court never
specifically struck the defendant's answer from the record.
The primary issue on appeal was whether granting a default
judgment in
favor of the plaintiffs because of the defendant's late service of his
answer
was proper given that the circuit court denied the defendant's motion to
enlarge time but did not strike his late answer from the record. In a
decision
authored by Judge Anderson, the court of appeals concluded that the
default judgment
was properly granted.
The court held that "default judgment is proper when the
circuit court
has denied a defendant's motion to enlarge time to serve a late answer
based
upon its finding of no excusable neglect even if a plaintiff has not
filed a
motion to strike because the court's denial of the motion to enlarge
effectively strikes the late answer. Put another way, if the motion to
enlarge time
to serve is properly denied, a responsive pleading is not joined and
effectively is stricken from the record" (¶ 17).
Said the court, "The result of our analysis is that a
motion for
default judgment under Wis. Stat. § 806.02(2) is properly granted
when the court
effectively erases any responsive pleading either by granting a motion
to strike
or by denying a motion to enlarge time. The effect of granting either
motion is
to `strike' a responsive pleading from the court record. Here, the
circuit
court effectively struck [the defendant's] answer by denying his motion
to
enlarge time and, thus, properly granted default judgment in favor of
the
[plaintiffs]" (¶ 18).
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Sanctions - Safe Harbor - Retroactivity
Ten Mile Investments v.
Sherman, 2007 WI App 253 (filed 29 Nov. 2007)
(ordered published 19 Dec. 2007)
This lawsuit arose out of a real estate transaction gone awry.
Ten Mile
sued Siciliano for specific performance, and she counterclaimed.
Siciliano
prevailed on the merits and sought sanctions against four opposing
parties; the
circuit court sanctioned only one, Nauman. Both sides appealed, raising
issues
about the applicability of current Wis. Stat. section 802.05 and its
safe
harbor provisions to an action filed before the new rule became
effective.
The court of appeals, in an opinion written by Judge
Higginbotham, reversed
a supplemental judgment that imposed sanctions on Nauman. The case
raised
three issues that clarify the supreme court's decision in
Trinity Petroleum Inc. v. Scott Oil Co., 2007 WI 88: "(1)
whether the new Wis. Stat. § 802.05 should
be applied retroactively on the facts of this case; (2) whether a motion
for
sanctions that is filed after judgment complies with the new statute's
`safe-harbor' provision, which allows recipients of a motion to alter
their
potentially sanctionable conduct and avoid sanctions; and (3) whether
Siciliano
substantially complied with that provision by warning Ten Mile and
Nauman earlier
that their conduct may be sanctionable" (¶ 2).
The court held in Trinity Petroleum that the
retroactivity of section
802.05 must be decided on a case-by-case basis if, as here, there is an
issue
about whether application of the statute would unreasonably burden the
party who
must comply (Siciliano). In both this case and Trinity
Petroleum, "the lawsuit was commenced before the effective date
of new Wis. Stat. § 802.05, judgment
was rendered on the merits after the effective date, and the sanctions
motion
was filed after the judgment" (¶ 7). Siciliano charged that
her opponents
both commenced and maintained a frivolous lawsuit, but she did not seek
sanctions for 11 weeks while the new statute was in effect. In light of
her failure
to explain why she could not comply with section 802.05's safe harbor
provisions during that period, the court held that the statute would
apply
retroactively to her claim.
Next, the court held that Siciliano failed to comply with
section 802.05
in the context of a postjudgment motion for sanctions. Of particular
importance, the court of appeals ruled that the supreme court's decision
in
Trinity Petroleum did not vitiate the court of appeals' own
holding in
Trinity that section 802.05 applies to postjudgment sanctions
motions
(see ¶ 15). "The supreme court did not reverse our
earlier holding, and did not reach as far as that step
of the analysis because it remanded for further proceedings on
retroactivity. Accordingly, we conclude that our
Trinity Petroleum opinion retains its precedential value in
holding that a postjudgment sanctions motion does
not comply with the safe-harbor provision. See Trinity
Petroleum, 296 Wis. 2d 666, ¶¶ 26-35. Applying that
holding to the instant case, there is no dispute
that Siciliano did not file her sanctions motion until after judgment
was
entered. Therefore, under our holding in Trinity
Petroleum, we conclude that her postjudgment sanctions motion does
not comply with the safe-harbor
provision" (¶ 16).
Finally, the court of appeals rejected Siciliano's contention
that her
repeated warnings about the lawsuit's frivolousness complied with
section 802.05.
"Warnings are not motions," the court reminded (¶ 18).
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Criminal Law
Injury by Intoxicated Use of Vehicle - Definition of "Material
Impairment"
State v.
Hubbard, 2007 WI App 240 (filed 24 Oct. 2007) (ordered published
28 Nov. 2007)
As a result of a car accident that caused serious injury to a
child,
the defendant was charged with the felony of causing injury by the
intoxicated
use of a vehicle (Wis. Stat. § 940.25 (1)(a)). The state's theory
was that
the defendant caused the injury while driving "under the
influence" of
prescription medication. At trial the court instructed the jury that
"under the
influence" means that the defendant's "ability to operate a
vehicle was materially
impaired because of consumption of a prescription medication"
(¶ 3).
[Editors' Note: The "materially impaired" standard is
derived from the definition
of "under the influence of an intoxicant" that is codified in
the Criminal
Code. See Wis. Stat. § 939.22(42).]
During deliberations the jury sent a written question to the
court
asking whether the judge could further explain the notion of
"materially
impaired." Out of the presence of the jury the court heard
arguments from counsel
and considered whether to use language from State v.
Waalen, 130 Wis. 2d 18, 386 N.W.2d 47 (1986) in its response to the
jury's question. In
Waalen, the supreme court stated that material impairment exists
"when a person is incapable
of driving safely, or `is without proper control of all those faculties
necessary to avoid danger to others'" (¶ 9). The trial judge
decided not to use
the Waalen language to respond to the jury's question and instead
instructed
the jury to apply an ordinary meaning to all words in the jury
instruction
that were not otherwise defined therein. The jury returned a guilty
verdict.
In a decision authored by Judge Snyder, the court of appeals
reversed.
"We conclude that the supreme court has defined the term
`materially impaired'
as used in the criminal code jury instruction by stating that material
impairment `exists when a person is incapable of driving safely, or
"is without
proper control of all those faculties
necessary to avoid danger
to others.'"
See Waalen, 130 Wis. 2d at 27. We further conclude that
under the facts of this
case, specifically in light of the jury's request for clarification of
the term
`materially impaired,' the circuit court erred when it failed to give
the jury
the guidance it needed to perform its task. Where a jury does not
comprehend
the law it is asked to apply, the controversy is not fully tried and a
new trial
is required in the interest of justice. We therefore reverse the
judgment
and orders of the circuit court and remand for a new trial in accordance
with
this decision" (¶ 20).
Communicating Harmful Material to a Child - Wis. Stat.
section 948.11(2)(am) - Meaning of "Verbal" Communication -
Internet Communication
State v.
Ebersold, 2007 WI App 232 (filed 25 Oct. 2007) (ordered
published
28 Nov. 2007)
The state charged the defendant with one count of verbally
communicating
a harmful description or narrative account to a child, in violation of
Wis.
Stat. section 948.11(2)(am). The complaint alleged that sometime in
early 2004
the defendant, a high school teacher, sent sexually explicit messages to
one of
his students in an Internet chat room. The student was 16 or 17 years
old at
the time. The state alleged that during the Internet chat, the defendant
described to the victim his favorite sexual acts and his desire to have
sex
simultaneously with her and another female.
The defendant moved to dismiss the charge, arguing that the
complaint did
not allege a violation of Wis. Stat. section 948.11(2)(am) because he
did not
"verbally communicate" with the student when he sent chat
messages to her
online. The circuit court granted the motion to dismiss, concluding that
section 948.11(2)(am) prohibits only oral descriptions or narrative
accounts of a
harmful nature and that the defendant's Internet messages to the student
were
written descriptions outside the scope of the statute, which
specifically uses
the "verbally communicates" language. The state appealed.
In a decision authored by Judge Higginbotham, the court of
appeals
reversed. After finding the statute facially ambiguous because its
language may
reasonably be read to support either party's conclusion, the court
concluded that
the statutory term "verbally" is "most reasonably read
here as proscribing
communication to children of harmful matter in words, whether oral or
written
"
(¶ 14). The court found support for this position in the
legislative history
of the statute, in which the Legislative Reference Bureau described the
import
of the bill that became section 948.11(2)(am) as follows: "`This
bill prohibits
a person from verbally communicating to a child an explicit and detailed
description or narrative account of [material defined by the statute as
harmful
to children]. The communication to the
child may be done by any means.' Drafting file, 1997 Wis.
Act 82, 1997 A.B. 189 (emphasis added)" (¶ 16).
In a footnote the court noted that the defendant's chat message
was
directed at a particular child (his student). "The instant case
does not address
whether Wis. Stat. § 948.11(2)(am) proscribes a person who has
attained the age
of seventeen from posting in a chat room or other electronic forum a
written
harmful description or narrative account that is not targeted at a
particular
minor. For example, it is not apparent to us how § 948.11(2)(am)
would apply to
a scenario where a defendant wrote a harmful description or narrative
account such as a `dirty' story and distributed that story on the
Internet to a
broad audience rather than to a specific person the defendant knew or
reasonably should have known was a minor. However, the facts of this
case plainly
fall under the prohibitions of § 948.11(2)(am), thus we do not
address that
situation" (¶ 18 n.5).
Interference with Child Custody - "Causing a Child" to
Leave His or
Her Parents
State v. Bowden,
2007 WI App 234 (filed 31 Oct. 2007) (ordered published
28 Nov. 2007)
Two brothers, ages 11 and 5, were walking home from school when
they had
to stop to allow a train to pass. The defendant, who the boys did not
know, crossed the street to where they were waiting and asked if he
could walk
with them. He showed the boys a ring and engaged them in sports talk. He
asked
the boys several times to come to his house with him. More than once
they said
they had to get home, because, they said, their mother had a rule that
they had
to be home by four o'clock. The defendant repeatedly said, "No,
come to my
house," and the boys eventually went with him. The older boy
testified that because
he was scared, he did not try to run away. The house to which the
defendant
led the boys was not on their route home. Once inside the premises the
defendant introduced the boys as "my babies" to other adults
who were there. Though
the older boy insisted that he and his brother had to leave, the
defendant
kept saying that they should stay and he would give them a ride home.
Ultimately, they were permitted to leave but only after being in the
house for at least
10 minutes and perhaps as long as 45 minutes (according to the estimates
of
the other adults who were present).
The defendant was convicted of interfering with child custody,
contrary
to Wis. Stat. section 948.31(2), which provides that "[w]hoever
causes a child
to leave, takes a child away or withholds a child for more than 12 hours
from
the child's parents or, in the case of a nonmarital child whose parents
do
not subsequently intermarry under s. 767.803, from the child's mother
is
guilty of a Class I felony." Under this statute one can interfere
with custody of
a parent in one of three ways: 1) causing a child to leave, 2) taking a
child away, or 3) withholding a child for more than 12 hours
(see ¶ 13). This case was prosecuted on a theory that the
defendant caused a child to leave his
parent.
The defendant argued that he could not have caused the children
to
leave their mother because the boys were not with her when the incident
occurred.
He contended that the statutory language defining the third method of
interference, "withholds a child for more than 12 hours,"
supports his logic,
because the legislature's use of the phrase shows that the legislature
contemplated situations in which the child is not with the parent.
Therefore, by
implication, the other two methods of interference must apply only to
those
situations in which the child initially is with the parent.
The state responded that the withholding method of interference
focuses
on permission - not on being in the parent's presence. In a decision
authored
by Judge Nettesheim, the court of appeals agreed. "The withholding
method
addresses a situation where the person who takes the child has some
initial
permission to do so. The other two methods speak to situations where the
parent has
given no permission to the person who `causes a child to leave' or
`takes a
child away.' See Wis. Stat. § 948.31(2). [The defendant's]
argument that `causes
to leave' means from the parent's actual presence suggests that parental
custody ends when the child is out of the parent's presence. Without
commenting on
the merit of that position, to adopt it would require that we add words
to
the statute that are not there. We decline to do so" (¶ 18).
Reviewing the evidence in the light most favorable to the
verdict, the
appellate court concluded that the defendant caused the boys to leave
their
mother within the meaning of the statute. "[The defendant]
approached the boys,
drew them into conversation by means aimed at disarming children and,
despite
being told they had to go home, insisted they deviate from their route
and
follow him. The boys complied out of fear, a fear that was evident to
the four
occupants of the house. The brothers reiterated their mother's rule
about
being home on time and that they would be grounded. [The defendant]
overrode
their resistance and persuaded them to act counter to their mother's
directives
and authority. It is undisputed that their mother neither gave the boys
permission to deviate from this directive nor [the defendant] permission
to cause the
boys to deviate from it. Regardless of whether [the defendant's] conduct
was
sweetened with sports talk and basketballs, it amounts to mental
manipulation of
a child by doing things to persuade the child to leave the parent"
(¶ 19).
Top of page
Criminal Procedure
Traffic Stops - Officer's Knowledge that Vehicle Owner's
Operating Privilege is Revoked - Reasonable Suspicion of Operating After
Revocation
State v. Newer,
2007 WI App 236 (filed 10 Oct. 2007) (ordered published 28
Nov. 2007)
After learning that a vehicle being operated on a highway was
registered
to Newer and that Newer's operating privilege was revoked, a police
officer stopped the vehicle and arrested the driver (Newer, the
defendant) for
operating while intoxicated. The defendant moved to suppress evidence
gathered
during the traffic stop, claiming that the officer lacked reasonable
suspicion to
make the stop because the officer had no information about who was
driving the
vehicle before the stop (even though the officer knew that the vehicle's
owner
had a revoked license). The circuit court agreed with the defendant and
entered
a suppression order.
In a decision authored by Chief Judge Brown, the court of
appeals
reversed the circuit court. "We adopt the view articulated by the
supreme court of
Minnesota in State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996):
that an
officer's knowledge that a vehicle's owner's license is revoked will
support
reasonable suspicion for a traffic stop so long as the officer remains
unaware of
any facts that would suggest that the owner is not driving" (¶
2).
Said the court, "[I]t is indeed a reasonable assumption
that the person
driving a particular vehicle is that vehicle's owner. It is not, of
course,
an infallibly true assumption, but that is not what is required for
reasonable suspicion.
However, the reasonable suspicion inquiry
considers the totality
of the circumstances. If an officer comes upon information suggesting
that
the assumption is not valid in a particular case, for example[,] that
the
vehicle's driver appears to be much older, much younger, or of a
different gender
than the vehicle's registered owner, reasonable suspicion would, of
course,
dissipate. There would simply be no reason to think that the nonowner
driver had
a revoked license" (¶¶ 7-8) (citation omitted).
In this case the officer did not observe the driver of the
vehicle and had
no reason to think at any time during the stop that the driver was
anyone
other than the vehicle's owner. The officer was entitled to rely on the
reasonable assumption that the owner of a vehicle was most likely the
driver
(see ¶ 9).
Effective Assistance of Counsel - Hearing-impaired Defendant
State v. Jones,
2007 WI App 248 (filed 23 Oct. 2007) (ordered published 28
Nov. 2007)
Jones was convicted of committing several crimes. The trial
court denied
his postconviction motion, which alleged he was unable to communicate
effectively with counsel because the defendant had a severe hearing
impairment. The
court of appeals, in an opinion written by Judge Fine, reversed the
postconviction order and remanded the case for a retrospective
evidentiary hearing on
Jones's impairment and its effect on his trial. "Although an
indigent defendant
does not have the right to pick his or her trial lawyer, the indigent
defendant
is entitled to a lawyer with whom he or she can communicate;
anything less
would make a mockery of the hallowed right to effective legal
representation.
The ability-to-communicate assessment is left to the reasoned discretion
of
the trial court" (¶ 13) (citations omitted). The trial court
was aware of
Jones's "apparent substantial hearing problems" and his
"repeated and
non-dilatory pleas to get the lawyer off the case" (¶ 14).
Other case-specific facts
justified the remand for an evidentiary hearing.
Search Warrants - Computer -Child Pornography
State v.
Gralinski, 2007 WI App 233 (filed 5 Sept. 2007) (ordered
published
28 Nov. 2007)
Police officers obtained a search warrant for Gralinski's home,
where
they found evidence of child pornography on his computer. Gralinski
asserted
that the affidavit did not support probable cause, because the
information relied
on in the affidavit was more than two years old. The circuit court
denied
his motion to suppress.
The court of appeals, in an opinion written by Judge Curley,
affirmed
the circuit court. "[T]he affidavit detailed the fact that
Gralinski's credit
card had been used to purchase a membership that afforded him access to
websites containing child pornography. In addition, the affidavit
contained
information relating to the special agent's experience and knowledge of
individuals who
are involved with child pornography and of the longevity of images
viewed
through the Internet to remain on a computer" (¶ 19). In
particular, the
affidavit recounted the propensity of such individuals to retain images
of child
pornography as well as the technology by which such images may be traced
on a
computer.
The court of appeals also held that the credit card information
was not
impermissibly stale despite being more than two years old. "[H]ere,
the issue
of staleness depends, in part, upon the tendencies of collectors of
child
pornography, as detailed in the special agent's affidavit. Gralinski
does not
contest the special agent's description of the habits of collectors of
child
pornography in the affidavit supporting the search warrant. In this
regard, the
affidavit provided `that individuals who are involved with child
pornography
are unlikely to ever voluntarily dispose of the images they possess, as
those
images are viewed as prized and valuable materials.' Given the specific
factual information obtained when Regpay's customer databases were
seized
that Gralinski's credit card had been used to purchase a membership to
sites
containing child pornography, it was reasonable for the magistrate to
infer
that Gralinski downloaded visual child pornography from the websites to
his
computer. Because possession of child pornography on one's computer
differs
from possession of other contraband in the sense that the images remain
even
after they have been deleted, and, given the proclivity of pedophiles to
retain
this kind of information, as set forth in the affidavit supporting the
request
for the search warrant, there was a fair probability that Gralinski's
computer
had these images on it at the time the search warrant was issued and
executed"
(¶¶ 30-31).
Interrogation - Right to Silence - Voluntariness
State v.
Markwardt, 2007 WI App 242 (filed 31 Oct. 2007) (ordered
published
28 Nov. 2007)
While being interrogated by police officers, the defendant at
first
waived her Miranda rights and responded to police questioning. About
one hour
into the interrogation, she said, "`Then put me in jail. Just get
me out of here.
I don't want to sit here anymore, alright. I've been through enough
today'"
(¶ 16). The questioning nonetheless continued. The circuit court
later
suppressed the statements on the ground that they were involuntary and
that the
defendant's right to remain silent was violated.
In a decision authored by Judge Anderson, the court of appeals
reversed
the suppression order. Wisconsin courts have adopted a "clear
articulation
rule" that governs assertions of the right to remain silent and
that parallels
the doctrine governing assertions of the right to counsel. "A
suspect must
unequivocally invoke his or her right to remain silent before police are
required either to stop an interview or to clarify equivocal remarks by
the suspect"
(¶ 26). The clear-articulation rule "allows no room for an
assertion that
permits even the possibility of reasonable competing inferences: there
is no
invocation of the right to remain silent if
any reasonable competing inference can be drawn. Accordingly, an
assertion that permits reasonable competing
inferences demonstrates that a suspect did not sufficiently invoke the
right to
remain silent. We therefore reverse the circuit court because
Markwardt's
comments permit reasonable competing inferences. A reasonable
interpretation
of Markwardt's comments could be that she was invoking her right to
remain
silent. However, an equally reasonable understanding of her comments
could be that
she was merely fencing with Clark as he kept repeatedly catching her in
either
lies or at least differing versions of the events. Markwardt's comments
are
equivocal as a matter of law because there are reasonable competing
inferences to
be drawn from them" (¶ 36).
The court also reversed the finding that the defendant's
statements
were involuntary for due process purposes. Examining a plethora of
factors,
the court held that there was no showing of coercive police conduct,
which is
a predicate for a finding of involuntariness.
Sentencing - Fines - Ability to Pay
State v. Ramel,
2007 WI App 271 (filed 14 Nov. 2007) (ordered published 19
Dec. 2007)
The defendant was convicted of third-degree sexual assault, and
the
trial court sentenced him to five years of initial confinement followed
by five
years of extended supervision. It also imposed a fine of $1,000.
Although the
court made a detailed analysis of the incarceration and supervision
components of
the sentence, "[t]he record is devoid of
any information about [the defendant's] financial condition at
the time of sentencing, with the exception of a
brief reference in the presentence report of `a vague employment
history, which
was unverifiable'" (¶ 3). The report describes the defendant's
employment as
consisting of a mason job in which he earned $10 per hour but is silent
as
to whether this employment was full-time, part-time, or only occasional.
There
is no identification of any assets the defendant might have had from
which a
fine could be paid. Neither party mentioned the defendant's financial or
employment status at the sentencing hearing.
The circuit court denied the defendant's postconviction motion
to vacate
the fine. One of the reasons given in support of the motion was that the
circuit judge gave no explanation for imposing the fine. In a decision
authored
by Judge Kessler, the court of appeals agreed with the defendant and
reversed
the circuit court. It began its analysis by noting that "[a] fine
is a
substantially different form of sentence than incarceration. Our supreme
court [has]
observed
that a fine can be a useful sentencing alternative,
particularly
when incarceration or rehabilitation is unnecessary or when, because of
the
financial resources of the offender, a fine may have a deterrent effect.
If an
offender has no ability to pay a fine, or no ability to pay the
particular
fine imposed, it is difficult to comprehend how a fine can be a useful
sentencing alternative" (¶ 13) (citations omitted).
Said the court, "A fine that an offender has the ability to
pay may
satisfy sentencing objectives the trial court has found to be material
and relevant
to the particular defendant. Here, however, with no explanation from the
sentencing court of how the fine imposed advanced those objectives, we
are left
to guess as to what those objectives might be in relation to the fine.
[State v.] Gallion [2004 WI 42, 270 Wis. 2d 535, 678
N.W.2d 197] requires that we do
more than guess. While we do not hold that
Gallion requires a trial court to
explain the reason for a specific amount of a fine (as it is likewise
not required
to explain a specific time of incarceration), we do conclude that under
Gallion some explanation of why the court imposes a fine is
required" (¶ 14)
(citations omitted).
"It is also necessary that a sentencing court determine at
the time of
sentencing whether a defendant has the ability to pay a fine if the
court
intends to impose one. The standard for imposing a fine, which is part
of the
punishment, should require no less consideration of the defendant's
ability to
pay than is required as part of an order of restitution.
See State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901,
656 N.W.2d 781 ([w]hen court orders
restitution at sentencing under Wis. Stat. § 973.20(13)(a), it must
set `an amount
of restitution that it determines the defendant will be able to pay
before
the completion of the sentence,' which includes imprisonment, extended
supervision and probation.). A fine is part of the sentence. Failure to
complete
one's sentence by full payment of the ordered fine may have significant
collateral consequences, such as a delay in restoration of certain civil
rights.
See Wis. Stat. §§ 304.078; 6.03(1)(b). A trial court
must consider the defendant's
ability to pay the fine during the total sentence, that is, any term of
probation, imprisonment and extended supervision" (¶ 15).
There being an
insufficient record in this case of the defendant's ability to pay a
fine, the court
of appeals vacated the fine and remanded with directions that the
judgment
be corrected accordingly.
Criminal Trials - Public Trial Right - Exclusion of Defendant's
Disruptive Family Members -Failure of Defense Counsel to Object to
Exclusion
State v. Ndina,
2007 WI App 268 (filed 20 Nov. 2007) (ordered published 19
Dec. 2007)
The defendant was charged with attempting to kill his nephew.
During
the course of the jury trial there was a disturbance in the courtroom
involving
the defendant's family members. The judge instructed the individuals to
remain silent. The following day there was another disturbance in the
courtroom
involving the defendant's family members. "The trial court noted
that
family members were walking in and out during testimony and disrupting
the
process. The trial court then ordered the exclusion of all family
members from
the courtroom, with the exception of the defendant's mother. The court
expressed concern that the family members were disturbing the process,
violating
the sequestration order, and disobeying the order of the court by
discussing
the case with each other" (¶ 4). The defense did not object to
the trial
court's order excluding the family members or dispute the court's
observations.
The jury convicted the defendant and, on postconviction motion
for a
new trial, the circuit court (presided over by a different judge due to
judicial rotation) ruled that the defendant's public trial right had
been violated
by the exclusion of his family members from the courtroom. It issued an
order granting a new trial. The state appealed. In a decision authored
by
Judge Wedemeyer, the court of appeals reversed and ordered the judgment
of
conviction reinstated.
The appellate court first addressed the issue of whether the
defendant's objection to the exclusion of his family members from the
courtroom was
waived. Said the court, "In order to assert a violation of the
constitutional right
to a public trial, however, a defendant must object at the time the
violation occurs. Here, it is undisputed that there was no objection
from the
defense, when the trial court ordered [the defendant's] family members
out of the
courtroom. Thus, we agree that [the defendant's] right to raise the
merits of
this issue on appeal was waived" (¶ 11) (citation omitted).
Waiver having been thus established, the court of appeals
concluded that
the public trial right violation could only be reviewed under the lens
of
ineffective assistance of counsel. To prove ineffective assistance of
counsel,
the defendant would need to establish deficient performance by his
attorney as
well as prejudice to his case. See Strickland v. Washington,
466 U.S. 668 (1984). Trial counsel conceded that failure to object
to the exclusion of the
family members from the courtroom constituted deficient performance but,
on the
facts of this case, the appellate court concluded that the defendant
failed to
demonstrate prejudice as a result thereof. The court declined to
presume
prejudice (see ¶ 18).
In summary the court noted that "[t]he key distinction as
to the issue
in this case is that when a defendant makes a timely objection at trial
raising
a public trial challenge, a defendant receives the benefit of automatic
reversal without having to prove prejudice if the public trial violation
is
proven. [H]owever, if a defendant fails to make a timely objection at
trial on a
public trial challenge, then the issue can only be reviewed in the
context of
ineffective assistance and prejudice must be established. To conclude
otherwise
would result in potential improper manipulation of the justice system by
encouraging defense counsel to not object so as to ensure automatic
reversal on appeal"
(¶¶ 21-22) (citations omitted).
Hearsay - Confrontation - Forfeiture by Wrongdoing
State v.
Rodriguez, 2007 WI App 252 (filed 2 Oct. 2007) (ordered
published
19 Dec. 2007)
The defendant was convicted of battery as well as charges of
intimidating
a victim and a witness (among others). Although the court of appeals had
previously affirmed the convictions, the supreme court remanded the case
for
reconsideration in light of its decision in State v.
Jensen, 2007 WI 26.
The court of appeals, in an opinion authored by Judge Kessler,
affirmed. First, the court assumed but did not decide that the hearsay
at issue was
testimonial within the meaning of the confrontation right. Testimonial
hearsay
is generally inadmissible, according to
Jensen, unless the declarant is shown to be unavailable and the
defendant had a prior opportunity to cross-examine
the declarant. The case law nonetheless also holds that a defendant may
forfeit these procedural rights because of his or her wrongdoing. Here,
two key
witnesses did not appear at trial. The trial judge was convinced by a
preponderance of the evidence that the defendant had procured their
absence through
his misconduct. More important, the trial judge's findings were
confirmed by
the jury's verdict convicting the defendant of intimidating a victim and
a
witness. "We hold that where the jury finds beyond a reasonable
doubt that the
defendant intimidated the person who was a witness, the defendant has
forfeited, by
his own misconduct, his right to confront that witness" (¶
19).
Judge Fine filed a concurring opinion, in which he contended
that because
the statements were nontestimonial for confrontation purposes there was
no need
to decide whether forfeiture by wrongdoing applied in this case.
Top of page
Evidence
Experts - Gang Conduct
State v. Burton,
2007 WI App 237 (filed 31 Oct. 2007) (ordered published
28 Nov. 2007)
The defendant was tried on 14 charges arising from his alleged
involvement
in three separate shootings. Several witnesses testified to his role as
the
shooter. The state also called a "gang expert" for the
following purposes: "to
explain why certain witnesses might change their stories between the
time of
the incident and the trial, and to explain that the shootings might have
been
motivated by Burton's desire to regain respect that he had lost when one
of
the shooting victims allegedly robbed him and took his pants"
(¶ 1).
The court of appeals, in an opinion written by Chief Judge
Brown,
reversed the convictions and remanded the case for a new trial because
the expert
testimony was irrelevant and highly prejudicial. As succinctly explained
by
the court, "[T]he expert's testimony insinuated, without any basis,
that Burton
was a part of the gang culture, if not actually a member of a gang. It
recast
the case as being about gang retaliation or gang culture, anathema to
the
reasonable citizen, when there was no evidence that the shootings were
gang
crimes. Not only that, the testimony also purported to explain away the
inconsistencies of witnesses simply because gangs infested the
neighborhood in which the
witnesses lived. If this had any probative value, which we doubt, it was
far
outweighed by prejudice. Ascribing the purported motivations or
truth-telling tendencies of an entire neighborhood to one of its
residents is not an
acceptable form of impeachment. This case must be retried based on
facts, rather
than insinuation or stereotyping" (¶
id.).
Top of page
Insurance
COBRA - Subrogation - Interest - Imaging Costs
Zurich Am. Ins. Co. v.
Wisconsin Physicians Servs. Ins.
Corp., 2007 WI App
259 (filed 14 Nov. 2007) (ordered published 19 Dec. 2007)
Beebe left his job at Michels Corp. in November 2000. Because of
an
administrative error, however, Michels did not terminate his health care
coverage. Essentially, Michels covered the first $40,000 of an
employee's health
care costs, and a stop-loss policy that Michels obtained from Wisconsin
Physicians Services Insurance Corp. (WPS) covered amounts over that
limit. Michels
continued to pay premiums to WPS for Beebe following his departure. In
May 2001
Beebe was seriously injured in a car accident, which necessitated
extensive
hospitalization. The hospital verified that Beebe had health insurance
through
Michels. In September 2001 Michels finally notified Beebe that he was no
longer
covered under its plan and informed him of his COBRA rights, which Beebe
ultimately elected. In November 2001 WPS denied coverage for Beebe's
hospital bills
because of Michels' delinquency in providing Beebe with his COBRA
continuation rights. Eventually, Michels' liability carrier, Zurich,
paid the $350,000
in hospital bills. In later litigation, the circuit court ruled that
Zurich had
a subrogation interest, that WPS was contractually obligated to pay
Beebe's
hospital bills, that Zurich was entitled to five percent prejudgment
interest,
and that Zurich could not recover its costs for digital imaging
(creating PDFs)
as "photocopying" expenses. Both WPS and Zurich appealed.
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed. First, summary judgment was properly granted against WPS on
the health
care coverage issue. The "key issue" concerned whether Beebe's
eventual COBRA
election related "back to the date of termination or whether
continuation
coverage starts on the date of election" (¶ 25). The policy
language was clear:
"[O]nce a participant elects COBRA coverage, it relates back to the
qualifying
event" (¶ 26). "[O]nce Beebe received notice and timely
elected continuation
coverage, his coverage was retroactive to the date of the qualifying
event" (¶ 29).
Second, Zurich had a subrogated right against WPS, which was
contractually
obligated to pay the hospital costs but failed to do so. Zurich
effectively
stepped into Michels' shoes by paying the delinquent bills and thus had
"superior
equity" over WPS (see ¶ 34).
On cross-appeal, the court of appeals held that Zurich was
entitled to
only five percent prejudgment interest, not 12 percent. Zurich had
compromised
with the hospital and paid somewhat less than the full bill. "Thus,
Zurich is
entitled to reimbursement from WPS for the extent of the payment it
made, but
is not entitled to recover prejudgment interest under Wis. Stat. §
628.46 [the
12 percent provision]" (¶ 40). Finally, the court held that
Zurich could
not recover its costs of about $500 for making digital images of
records. The
pertinent statute, Wis. Stat. section 814.04(2), applies only to
photocopies
(hard copies), not to such imaging. "[U]nless the legislature
revises the statute
to add electronic reproduction/imaging to the statute as an item of
cost,
imaging costs do not fall within the costs statutes..." (¶
43).
Top of page
Motor Vehicle Law
OWI - Graduated Penalties - Prior Out-of-state Administrative
Suspension
State v.
Machgan, 2007 WI App 263 (filed 28 Nov. 2007) (ordered published
19 Dec. 2007)
Machgan was charged with operating a motor vehicle while
intoxicated (OWI)
as a fourth offense. As a basis for one of the three prior convictions,
the
state listed a 2004 administrative suspension of Machgan's driver's
license by
the state of Missouri. The Missouri arrest was based on probable cause
that
Machgan was operating while under the influence of alcohol there.
Machgan filed a
motion to dismiss on the ground that the court lacked jurisdiction
because
the criminal complaint failed to set forth sufficient facts to allege a
fourth-offense OWI and therefore was defective. In support of the motion
he
asserted that his driving record lists only two prior convictions, both
in
Wisconsin, and that the event listed as occurring in Missouri indicating
an OWI arrest
did not list an adjudication or conviction and thus could not be counted
as a
prior conviction under Wisconsin's graduated penalty structure for OWI
offenses.
See Wis. Stat. §§ 346.65(2c), 343.307. The circuit
court held that the
defendant's administrative suspension in Missouri cannot be counted as a
prior
conviction for Wisconsin penalty enhancement purposes. In a decision
authored by
Judge Anderson, the court of appeals affirmed.
The OWI penalties provided for in Wis. Stat. section 346.65 are
determined (in relevant part) by "the total number of suspensions,
revocations and
other convictions under s. 343.307(1)." Wis. Stat. section 343.307
contains two
subsections that specifically pertain to "the law of another
jurisdiction" and
to determination of which events under the out-of-state law will be
counted
as prior convictions for the purpose of penalty enhancement.
See Wis. Stat. § 343.307(1)(d), (e). Administrative
suspensions like the one in this case
are not included among the events that count. Said the court, "If
the
legislature wishes to count other out-of-state suspensions for penalty
enhancement
purposes, it is for the legislature to express, not for this court to
surmise
when the statutory language provides otherwise" (¶ 14).
Top of page
Municipal Law
Zoning - Amendment of Official Map - County's Reliance on
Erroneous Advice of Corporation Counsel
Village of Hobart v.
Brown County, 2007 WI App 250 (filed 18 Oct. 2007)
(ordered published 28 Nov. 2007)
This dispute arose from Brown County's construction of a waste
transfer
station in the village of Hobart without having first obtained approval
or
permits from the village. In injunction proceedings the circuit court
concluded
that the county did not violate any village ordinances and that, even if
it
did, equitable principles justified denial of the injunction. In a
decision
authored by Judge Dykman, the court of appeals reversed.
Among the issues on appeal was whether the county violated the
Hobart
zoning ordinance by constructing the waste transfer station. The
official zoning
map that was adopted in 1986 and is referred to in the ordinance zones
the
parcel of land in question as an "exclusive agricultural
district," which would
not permit a waste transfer station. Nonetheless, the county argued that
the
last sentence of the zoning ordinance, which states that "[t]he
said [1986]
map, together with everything shown thereon and all amendments thereto,
shall be
as much a part of this ordinance as though fully set forth and described
herein," establishes that the other purported official zoning maps,
several of which
are posted in the village's municipal building and one of which was
provided to
the county, are incorporated into the zoning ordinance. The parties
agreed that
the other versions of the zoning map designate the waste transfer
station site
as "public use." The county argued that the village's other
versions of the
zoning map are "amendments" to its official map, and thus the
waste transfer
station site has been re-zoned to public use. (The record establishes
that the
village did not adopt a new official map after 1986.
See ¶ 13 n.4.)
The court of appeals disagreed. Said the court, "[T]he
problem with the
County's argument is that it is asking us to equate the printing of a
map
with zoning. But the Village may not effect a zoning change by simply
printing a
new map. See Gloudeman v. City of St.
Francis, 143 Wis. 2d 780, 784, 422 N.W.2d 864 (Ct. App. 1988)
(explaining that `ordinances which change the zoning
classification of a specific parcel of land must comport with statutory
notice
requirements' because `the public ha[s] a right to appear and voice
objections to
the proposed ordinance'). Further, even accepting the County's argument
that
the Village may re-zone land through amendments to its official zoning
map, we
do not agree that printing a map labeled `official map' is equivalent to
amending an official map. If the County's argument is carried to its
logical
conclusion, then anyone seeking a permit would be subject to the
Village's arbitrary
changing of its zoning, since all the Village would have to do is print
a map
with new zoning districts and call that an `amendment' to its official
map.
This would be contrary to law in Wisconsin establishing safeguards to
protect
the public from unnoticed or secret changes in zoning.
See, e.g., Gloudeman, 143 Wis. 2d at 784-85"
(¶ 13).
Another issue on appeal was whether the county could avoid the
village's permit requirements for the construction of the waste transfer
station
because it relied on the advice of its corporation counsel, who had
rendered an
opinion that the county could legally proceed with construction without
any approval
or permits from the village (see ¶ 4). "The County
argues that it was advised
by its corporation counsel that it could legally construct the waste
transfer station without a building permit from the Village, and that it
should not
be punished for exercising its right to be represented by counsel. The
County
does not argue that it was not subject to the Village's permit
requirements,
only that it was justified in relying on its counsel's advice in
proceeding
without one. While we agree that it would be improper to punish the
County for
acting on the advice of legal counsel, we do not agree that the County
is entitled
to immunity for acting on that advice. That is, the fact that the
County's
corporation counsel erroneously advised it to proceed with constructing
a
waste transfer station does not mean that the County is not subject to
the
Village's permit requirements" (¶ 18).
In sum, because the circuit court's findings that the county did
not
violate the village zoning ordinance and that equity prevented an
injunction were
not supported by the record, the court of appeals reversed the circuit
court
and remanded the matter for further proceedings in the circuit court
(see ¶ 24).
Top of page
Real Property
Mortgages - Equitable Subrogation
Countrywide Home Loans
v. Schmidt, 2007 WI App 243 (filed 10 Oct. 2007)
(ordered published 28 Nov. 2007)
"In this case, Countrywide Home Loans, Inc. lent Gary
Schmidt $360,000
secured by a home mortgage. There was a problem, though - at the time
Countrywide lent Schmidt the money, the house was no longer Schmidt's to
mortgage.
Jeanne Mayer had contracted to buy it for $300,000 and had sued Schmidt
for
specific performance when he tried to back out on the deal, all before
Countrywide
entered the picture. Eventually, realizing that Mayer's superior claim
on
the property rendered its $360,000 mortgage worthless, Countrywide fell
back on
the fact that it had paid off two prior mortgages totaling about
$260,000.
The circuit court allowed Countrywide to recoup the $260,000, but
Countrywide claims it is entitled to more: it wants Mayer to pay
interest on the old
mortgages, along with taxes and insurance that it paid, all adding up to
$320,000
_ or $20,000 more than Mayer's purchase price for the property"
(¶ 1).
In a decision authored by Chief Judge Brown, the court of
appeals
affirmed the circuit court's determination that Countrywide was not
entitled to
equitable subrogation for the additional monies. Countrywide relied on a
strained reading of a 1926 case as establishing a bright-line rule along
the
following lines: "had Countrywide not paid off the two earlier
mortgages, they
would still be in place and accumulating interest at their old rates.
Thus,
Countrywide being subrogated to those loans leaves Mayer no worse off
than she
was before the old mortgages were refinanced. But the facts remain that
the
mortgages were refinanced, and that, until fairly recently, the
total amount
`due' on those mortgages has been less than Mayer's $300,000 purchase
price.
Because of these two facts, during Mayer's legal battles of the past
four years,
she has been operating under the reasonable assumption that if she were
successful in her specific performance case, she could get what she
bargained for" (¶
19). In particular, Mayer might "well have conducted herself
differently
throughout the proceedings had she known that interest was
`accumulating' on
mortgages that no longer existed: for example, she could have walked
away from the
transaction, or asked the court to order Schmidt to make the necessary
payments
to preserve the status quo. It is simply not true that Mayer is no worse
off
if Countrywide is allowed equitable subrogation that exceeds her
bargained-for purchase price"
(¶ 20). Balancing these equities, including the indisputable
fact that
Mayer was "blameless," the circuit court properly permitted
"Mayer to enforce
her contract as written, and not pay Countrywide more than the purchase
price
of the property for mortgages it did not hold" (¶ 21).
Top of page
Sexually Violent Persons
Evidence - Relevance
State v. Budd,
2007 WI App 245 (filed 4 Oct. 2007) (ordered published 28
Nov. 2007)
The court of appeals, in an opinion written by Judge Dykman,
reversed
Budd's commitment as a sexually violent person under Wis. Stat. chapter
980. The
court said that reversible error occurred when the state introduced
evidence of
the Department of Correction's screening process, conducted by the End
of
Confinement Review Board (ECRB), for persons potentially subject to
chapter 980.
Said the court, "[t]he problem with the screening evidence
admitted in
this case is that it did not establish why Budd was selected for ch. 980
proceedings. The evidence only explained that most sex offenders
scheduled for
release are not selected for ch. 980 proceedings, without explaining why
a select
few are so chosen. There was no testimony as to the qualification of the
ECRB
or its chairman, or explanation of the evaluation process used by
either. From
the record, the ECRB's process could be random, or based on irrelevant
criteria.
As Budd points out, all the evidence served to do in this case was to
inform
the jury that Budd was selected as one of the 4.5% of sex offenders
recommended
for ch. 980 proceedings. Without explaining why, we do not see how that
information is relevant to whether Budd is a sexually violent person
under our analysis
in [prior case law]" (¶ 16). The court of appeals concluded
that the error was
not harmless.
Top of page
Torts
Accountants - Negligence
Krier v.
Vilione, 2007 WI App 235 (filed 2 Oct. 2007) (ordered published
28 Nov. 2007)
Several plaintiffs, including several corporations and an
investor, sued
an accounting firm for malpractice and related claims after financial
irregularities, including misappropriations, occurred. The circuit court
granted
summary judgment in favor of the accounting firm and dismissed the
claims.
The court of appeals, in a decision authored by Judge Curley,
reversed.
The opinion features an extended discussion of accounting malpractice
and harm
to third parties who rely on financial statements, a determination
crucial
to assessing the plaintiffs' standing. The court found that the
"client-based relationships" among the accounting firm and the
plaintiffs (entities and
individuals) was "closer" than that observed in two prior
cases that involved
"accounting firms and third parties" (¶ 21). In sum, the
plaintiffs had
asserted valid claims.
The court next assessed the range of potential damages in light
of the
accounting firm's duty toward the plaintiffs. Whereas the trial court
had
restricted damages to $7,000, the court of appeals found issues of fact
that justified a trial on potentially millions of dollars in damages.
Product Liability - Lead Paint
Godoy v. E.I. DuPont de
Nemours, 2007 WI App 239 (filed 16 Oct. 2007)
(ordered published 28 Nov. 2007)
The plaintiff, a minor, brought claims for strict-liability and
negligence defective-design against manufacturers of
white-lead-carbonate pigment.
The circuit court dismissed the claims. The "crux of the appeal
center[ed]
on whether [the] complaint sufficiently alleges that
white-lead-carbonate
pigment was defectively designed" (¶ 1).
The court of appeals, in an opinion written by Judge Fine,
affirmed the
circuit court's determination that the claim was insufficient. The
"bottom-line here
is that one cannot make white-lead
carbonate without using lead" (¶
9). Turning for edification to the Restatement (Third) of Torts: Product
Liability (1998), § 5, the court concluded that "the only
possible definition of
`defective' that could be applicable here is subsection (b), which
requires that
`the foreseeable risks of harm posed by the product could have been
reduced
or avoided by the adoption of a reasonable alternative design.' Putting
aside
the fact that in Wisconsin `foreseeability' is not an element of a
strict-liability claim (but is of a claim asserting negligence), as we
have seen there is
no `alternative design' to make white-lead carbonate without using lead.
Thus,
the Restatement (Third) of Torts: Products Liability § 5(a) (1998)
does not
sanction imposing liability on the defendants. As expressed by § 5
cmt. C:
`[R]aw-materials sellers are not subject to liability for harm caused by
defective design of the end-product'" (¶ 8).
Governmental Immunity - Discretion
DeFever v. City of
Waukesha, 2007 WI App 266 (filed 28 Nov. 2007)
(ordered published 19 Dec. 2007)
In January 2004 a water main ruptured under an entranceway into
an
underground parking structure; the flood destroyed property belonging to
apartment residents who used the garage. The pipes froze because they
were buried
only three feet beneath the surface. The plaintiffs sued the city of
Waukesha
for its role in designing and installing the water main. The circuit
court
granted summary judgment in the city's favor based on governmental
immunity.
The court of appeals, in a decision authored by Judge Snyder,
affirmed.
Various administrative regulations imposed a ministerial
(nondiscretionary) duty
on the city to properly install the water main to prevent freezing. It
was
not disputed that the water main, when originally installed, was in
compliance
with these requirements. Later modifications, however, left the water
main with
only three feet of cover, which was insufficient. "Here,
administrative code
provisions, `acts of government,' imposed a ministerial duty on Waukesha
to
place the water main at a specified depth. However, we have located no
statutes
or rules regarding post installation inspections or modifications that
would
impose a ministerial duty on Waukesha under the circumstances presented.
Waukesha installed the water main at an appropriate depth to prevent
freezing. It
was not until the surface was graded down to allow for the entrance ramp
to
the underground parking garage that the water main was no longer at the
required depth
. We conclude that the design of the overall
development, including
the soil grading performed to place an entrance ramp for the underground
parking garage, was a discretionary act and enjoys governmental
immunity" (¶ 13).
The court also rejected the plaintiffs' argument that the court
should
recognize an exception for engineering services that is akin to one
governing
the "medical context." The argument was
"misdirected" because the supreme court
had previously refused to recognize a "`professional' exception
beyond the
medical context" (¶ 16).
ATV - Minors - Helmet - Safety Certificate
Hardy v.
Hoefferle, 2007 WI App 264 (filed 6 Nov. 2007) (ordered
published
19 Dec. 2007)
Hoefferle and a minor, Aaron Hardy, were operating all-terrain
vehicles (ATVs) on land owned by Aaron's mother. Aaron suffered serious
head
injuries when the ATVs collided. Aaron was not wearing a helmet. Aaron
later
sued Hoefferle to recover damages for his personal injuries. One year
before
these claims were filed, Hoefferle had accepted $50,000 from Aaron's
parents'
(the Hardys') insurer, signing a document entitled "Loy
Release/Covenant Not
to Sue." The circuit court ruled that Hoefferle's counterclaims
against the
Hardys for their alleged negligent supervision were barred by statute as
well as
by the release.
The court of appeals, in an opinion written by Judge Brunner,
affirmed.
According to Hoefferle's counterclaim, the Hardys were negligent in
failing
to ensure that Aaron wore a helmet and because he lacked an ATV safety
certificate. The court held that because Aaron was injured on land owned
and
managed by his mother, he fell within an exception to the helmet
requirement as
provided by Wis. Stat. section 23.33(1)(if). For this reason, "Wis.
Stat. §
895.049 prohibited Aaron's failure to wear a helmet from reducing his
damages" (¶ 11).
Moreover, the court rejected the argument that section 895.049
applies
only to damages, not negligence. "We conclude that where §
895.049 applies to
prohibit a reduction of damages, it necessarily also precludes a
person's
failure to wear a helmet from being considered a form of
negligence" (¶ 12). For
much the same reason, the parents could not be negligent for failing to
require
that Aaron obtain ATV safety certification. "Here, Aaron was not
required to
obtain the safety certificate because he was operating the ATV on
property under
the management and control of his mother
" (¶ 17).
"The safety certificate
requirement of Wis. Stat. § 23.33(5) is a creation of the
legislature, and
the legislature has specified who is required to comply with the
requirement.
Where a person is not required to obtain a safety certificate, we
conclude that
person cannot be negligent for failing to do so. Hoefferle essentially
implies that a jury should be given the opportunity to supplant the
legislature's
policy judgment on who should obtain a safety certificate. We
disagree" (¶ 18).
Top of page
Worker's Compensation
Coverage - "Employer"
Lloyd Frank Logging v.
Healy, 2007 WI App 249 (filed 30 Oct. 2007)
(ordered published 28 Nov. 2007)
An insurance carrier appealed a circuit court order affirming a
Labor
and Industry Review Commission determination that Healy was an employee
"because
he did not fulfill the statutory definition of an employer" (¶
1). The
insurer argued that Healy "was an employer primarily because he
purchased a
worker's compensation insurance policy"
(id.).
The court of appeals, in an opinion written by Judge Hoover,
affirmed
the circuit court and rejected the argument. The argument was rooted in
Stapleton v. Industrial Commission, 249 Wis. 133 (1946)
(Stapleton I); there was no contention that Healy was an employer
as defined by statute.
See Wis. Stat. § 102.04 (defining "employer").
"Read in context, then, it is apparent that
when the Stapleton I court and Wis. Stat. § 102.04(3) (1943)
refer to any
`person, firm, and[/or] private corporation,' they are describing types
of entities
that may be employers. Nothing about the court's decision or the statute
implies that individuals who are not also employers may opt into the
Worker's
Compensation Act's jurisdiction. Ultimately, [the insurer] is
bootstrapping,
arguing that because Healy `bought a worker's compensation policy, he is
considered
an employer under the Act,' even though to elect to come under the Act
by
purchasing a policy, Healy had to be an employer in the first
place" (¶ 14).
Moreover, Healy "never had individuals in his service as
employees" (¶ 15). "The
Commission correctly concluded that because Healy is not excluded from
the
definition of employee, he is entitled to benefits from [the
insurer]"
(id.).
Meaning of Disfigurement - "Limp"
County of Dane v. Labor
& Indus. Review
Comm'n, 2007 WI App 262 (filed 29 Nov. 2007) (ordered published
19 Dec. 2007)
An employee slipped and fell on a wet floor while at work. One
of her
legs twisted behind her back and her knee was injured. As a result, she
has a
limp, persistent pain, strength loss in her joints, and poor balance
when
walking without a cane. In worker's compensation proceedings the
administrative
law judge (ALJ) found that the employee was entitled to a special
benefit for
disfigurement because of the limp. The Labor and Industry Review
Commission
(LIRC) affirmed the ALJ; the circuit court thereafter affirmed the LIRC.
In a
decision authored by Judge Lundsten, the court of appeals affirmed the
circuit
court. The county appealed.
Wis. Stat. section 102.56(1) authorizes compensation for
permanent
disfigurement, subject to the qualification that the disfigurement
involve "areas of
the body that are exposed in the normal course of employment." With
regard
to limps, LIRC has been inconsistent in deciding whether they constitute
a
disfigurement (ruling in 1986 that they do and in 1994 that they don't).
In light
of this inconsistency, the court of appeals decided in this case that
the
applicable standard to be applied in the review of LIRC's decision is
due weight
deference (see ¶ 18).
Applying that standard the court concluded that LIRC's position
in this
case that a limp is a disfigurement is a reasonable interpretation of
the law
(see ¶ 19) The text of the statute does not limit the notion
of disfigurement
to things like amputations, scars, and burns. Dictionary definitions of
the
term "disfigure" are indeed broader, for example, "to
make less complete,
perfect, or beautiful in appearance or character" (¶ 20)
(citing Webster's Third New International Dictionary
(1993)). Further, the court concluded that
"LIRC's present interpretation comports with the manifest purpose
of
disfigurement awards: to compensate an employee for potential wage loss
resulting from
negative perceptions about a physical abnormality when those perceptions
are
not justified by any corresponding functional limitations. Undoubtedly,
potential employers may have negative perceptions of a limp such as [the
employee's
in this case], and those perceptions may negatively impact wage-earning
potential beyond what any corresponding functional limitations justify.
The
circumstances of [the present] case are illustrative. The facts found by
the ALJ show that
at least one potential employer was concerned that [the employee] had
multiple sclerosis or had suffered a stroke" (¶ 22) (citations
omitted).
Finally, the appellate court concluded that "LIRC's present
interpretation comports with the primary purpose of the worker's
compensation act, to
compensate injured workers for loss of wage-earning power, and with the
general
principle that the act is liberally construed to effectuate this
purpose"
(¶ 23) (citations omitted).
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