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  • Wisconsin Lawyer
    December
    01
    2013

    Top 9 Recent Wisconsin Supreme Court Decisions

    Beth Ermatinger Hanan

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    This year’s review of Wisconsin Supreme Court decisions issued during the 2012-13 term highlights those affecting the family or the valuation of property or describe the limits of governmental actor immunity.

    Capitol rotundaIn the author’s view, the cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2012-13 term.

    CIVIL CASES

    Parentage (Surrogacy) Agreement

    Rosecky v. Schissel1

    “The ability to create a family using [assisted reproductive technology] has seemingly outpaced legislative responses to the legal questions it presents, especially the determination of parentage.”2 In this case, the Wisconsin Supreme Court accepted certification of the question of whether an agreement for the traditional surrogacy and adoption of a child is enforceable. Finding no existing statutory scheme to neatly answer the multiple legal issues presented, the court, in an opinion authored by Justice Ziegler, concluded that the agreement was a valid, enforceable contract unless it is contrary to the best interests of the child. Whether by future legislation or additional case law, many questions remain to be answered.

    Marcia Rosecky and Monica Schissel had been lifelong friends. Marcia was unable to bear children, and twice Monica offered to act as a surrogate mother for Marcia and her husband, David Rosecky. In 2008, David and Marcia accepted Monica’s offer, eventually deciding to use an egg from Monica and David’s sperm. The parties had extensive discussions about terms of the parentage agreement. Marcia worried that Monica would have trouble giving up her biological child , but Monica reassured the Roseckys that she would allow them to raise the child. Monica would have no formal custody and placement, only informal social visits. Monica became pregnant via artificial insemination in 2009.

    The parties had a falling out before the child’s birth. Monica reneged on her agreement to terminate her parental rights, although she allowed the child, F.T.R., to go home from the hospital with the Roseckys. A variety of legal proceedings ensued. The circuit court appointed the Roseckys temporary guardians. David filed a paternity action, which was joined with the guardianship case. Monica moved for increased custody and placement of F.T.R., and David moved for specific performance of the parentage agreement.

    Beth Ermatinger Hanancom hanan gasswebermullins Beth Ermatinger Hanan, U.W. 1996, is an appellate and trial attorney at Gass Weber Mullins LLC, Milwaukee.

    After a hearing, the circuit court determined that the parentage agreement was not enforceable. The court viewed the issue to be whether, under the standards of Wis. Stat. section 48.41, it could force or require Monica to terminate her parental rights, and it declined to enforce the custody and placement provisions. In anticipation of a trial on custody and placement, the court ordered a study, per Wis. Stat. section 767.41, to evaluate F.T.R.’s best interests. The study’s author concluded that David should have full custody and placement and that, because the parties’ relationship was “beyond high conflict,” Monica should have no placement. The guardian ad litem’s (GAL’s) report recommended the same.

    At trial, there was medical testimony that F.T.R. was attached to Marcia, and disastrous consequences could result from interfering with that connection, particularly because Monica desired to be the child’s mother, which would confuse F.T.R. The two families no longer had a relationship, a fact that suggested any placement with Monica would negatively affect the child. The court refused to admit the parentage agreement as an exhibit, despite argument that it was relevant to factors under Wis. Stat. section 767.41 and contained a severability clause. Ultimately, the court awarded sole custody and primary placement to David, with secondary placement to Monica, reasoning that under section 767.41(4)(b), both families were entitled to placement unless it would endanger the child’s physical, mental, or emotional health. David appealed the holding of unenforceability and the secondary placement with Monica.

    The supreme court accepted certification of the enforceability issue. Citing to treatises and the ABA model act, the court began by noting that in traditional surrogacy, the surrogate is the genetic mother of the child and is artificially inseminated with the sperm of the intended father or a sperm donor. Under Wis. Stat. section 48.02(13), Monica was F.T.R.’s mother and had commensurate parental rights. But most states lack statutes addressing surrogacy. Wisconsin statutes do not speak to the enforceability of parentage agreements nor address a policy against enforcement. The court assessed statutes describing birth certificate registration, parental rights (or lack thereof) of sperm donors, and provisions for typical custody and placement situations.3 Section 767.41 enumerates factors to consider when determining the best interests of the child, but many are difficult to apply to surrogacy arrangements. The court noted that termination-of-parental-rights and adoption statutes fail to provide relief for someone such as Marcia, wife of the biological father, in situations in which the surrogate refuses to voluntarily terminate her parental rights and no record facts indicate grounds to terminate those rights.

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    https://www.youtube.com/watch?v=m4bNEaBsHGg?rel=0

    In this video, appellate lawyer Beth Ermatinger Hanan explains why she believes two cases in particular deserve inclusion in her December 2013 article “Top 9 Recent Wisconsin Supreme Court Decisions.” One case deals with surrogacy agreements and the nexus between family law issues and contract principles, the other deals with the standard by which a mental health patient may refuse involuntary medication.

    The court next turned to contract law. A portion of a contract may be severable if severing the illegal portion does not defeat the primary purpose of the bargain. Here, the agreement contained the essential elements of a contract, and the court concluded that the interests supporting enforcement were more compelling than the interests against enforcement. The court reasoned that enforcement of surrogacy agreements promotes stability and permanence in family relationships because the intended parents plan for the arrival of their child and enforcement reinforces expectations of all parties to the agreement and reduces contentious litigation that could drag on for years. These interests are mirrored in the “best interest of the child” statutory policies.

    But given Monica’s failure to consent, the provision for termination of her parental rights was contrary to Wis. Stat. section 48.41 and thus was unenforceable. That provision could, however, be severed and the remainder enforced, because the primary purpose of the agreement was to ensure the Roseckys would be parents of F.T.R. and would have custody and placement. Accordingly, the court held that the circuit court erroneously exercised its discretion by failing to consider the valid portions of the parentage agreement when it rendered its custody and placement decision.

    In a concurring opinion, Chief Justice Abrahamson cautioned that surrogacy contracts are not standard commercial contracts and raise numerous public policy issues and questions of unconscionability. She warned that a child born of alternative reproductive methods will have different rights and be treated differently under the custody and placement statutes than any other child.

    Declaring a Marriage Void

    McLeod v. Mudlaff4

    The primary issue in this case was whether a court has the authority to declare a marriage void after the death of one of the spouses. Nancy Laubenheimer’s husband and stepdaughter each petitioned to become personal representative of her estate. The stepdaughter asserted that McLeod’s marriage to Laubenheimer was invalid because at the time of the wedding Laubenheimer lacked mental capacity to consent. If the marriage was invalidated, McLeod would be ineligible to share in Laubenheimer’s estate.5 The circuit court ruled that annulment was the only method to void a marriage, and that Wis. Stat. chapter 765 prohibits annulment after the death of one of the spouses.

    Justice Prosser, writing for the court, distinguished between annulment and a judicial declaration that a marriage is void.6 Annulment can be used to void a marriage when the parties are alive, but it is not the exclusive means to challenge validity of a marriage, as both common law and statutes reflect. A 2005 amendment to the annulment statute did not constrict a court’s power to address fraud, mistake, and other circumstances in a disputed marriage, in order to declare rights, status, and other legal relations.

    Nancy and Luke Laubenheimer were married in 1971, and Nancy became stepmother to Luke’s three children, including Patricia Laubenheimer. Nancy Laubenheimer executed a will in 1999, leaving her estate to Luke or to his children if he died before she did. Luke died in 2001, and Laubenheimer suffered a stroke in 2007, with other ailments following. McLeod began living with her sometime before the stroke. In 2008, while Laubenheimer was hospitalized, Laubenheimer’s doctors noted her diminished mental capacity and signed a statement of incapacity.

    Shortly after Laubenheimer was transferred to a nursing home, McLeod took her out briefly to obtain a marriage license, and a week later he again took her out, this time for them to be married by a court commissioner. McLeod did not tell Laubenheimer’s family, friends, or caretakers about the marriage. After Patricia learned of it in early 2009, she petitioned for temporary and permanent guardianship of Laubenheimer’s person and the estate and for a protective placement. The petition included a physician’s statement that Laubenheimer was incompetent and in need of a guardian. Before a permanent guardianship could be approved, Laubenheimer died. Laubenheimer’s physician concluded that at no time while she was in the nursing home did she have sufficient mental capacity to consent to marriage.

    Several months after Laubenheimer’s death, McLeod petitioned for formal administration of her estate and requested appointment as personal representative. He also asserted that because their marriage took place after the 1999 will was executed, Wis. Stat. section 853.12 gave him a right to share in the estate. McLeod argued that because Laubenheimer had no biological or adopted children, he was the sole heir.7

    Patricia filed a competing petition to be named a co-personal representative along with her brother, to have the 1999 will admitted to probate, and to invalidate Laubenheimer’s marriage to McLeod. Relying on Wis. Stat. section 767.313, the circuit court concluded that annulment was the sole means to invalidate a marriage but could not be invoked after death. Accordingly, the court granted McLeod’s petition for formal administration. The supreme court accepted certification.

    The court had to reconcile several statutes: the rule against annulment following a spouse’s death, as contained in Wis. Stat. section 767.313(2); the Wis. Stat. section 765.03(1) prohibition of marriage when one party is incapable of assenting to the marriage; and a court’s authority under Wis. Stat. section 806.04(4) to declare a marriage void in an estate case, even after death.

    Chapters 765 through 768 are designated the Family Code, with a purpose to promote the stability and best interests of marriage and the family.8 Chapter 765 places certain restrictions on who may marry, with Wis. Stat. section 765.03 precluding a marriage contract “when either party has such want of understanding as renders him or her incapable of assenting to marriage.” A marriage in violation of this section is null and void, but under certain circumstances may be re-validated. Wis. Stat. § 762.002(6).

    Section 767.313(1) of the Wisconsin Statutes describes the circumstances in which a party, guardian, or legal representative can sue for annulment, including if the party “lacked capacity to consent … at the time the marriage was solemnized … because of mental incapacity or infirmity … or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage.…” The section also states that “a marriage may not be annulled after the death of a party to the marriage.” After reviewing the competing statutory frameworks, the court considered an earlier court of appeals decision that held that courts have the power to declare a marriage void even after a death.

    In Ellis v. Estate of Toutant, a Wisconsin resident, Toutant, married Ellis, a Scottish national, in Texas only 30 days after Ellis’s divorce. Toutant died testate in Wisconsin shortly thereafter, but Ellis filed a surviving spouse’s selection of property, selecting the bulk of Toutant’s personal property. The personal representative asked the court to declare the Toutant-Ellis marriage void, and the court agreed, holding it violated the required six-month waiting period between a divorce and subsequent marriage. The Toutant court distinguished between annulment and voiding of a marriage. Relying on Toutant, and tracing authorities back to early statehood, the McLeod court concluded that Wisconsin common law has drawn a distinction between annulment and declaring a marriage void after death, and that distinction has been preserved.9

    One case in particular focused the analysis. In Lyannes v. Lyannes, the court identified three classes of marriage: valid, void, and voidable. Although at that time annulment was the proper remedy to set aside both void and voidable marriages, the Lyannes court reaffirmed that “in the void marriage the relationship of the parties … is an absolute nullity from the very beginning … it may be questioned at any time … after the death of either or both” parties. In short, Lyannes maintained a tradition of recognizing a court’s ability to invalidate a marriage after death.10

    Affirming that a marriage may be invalidated after a spouse’s death, the court then identified Wis. Stat. section 806.04, the Uniform Declaratory Judgment Act, as the proper mechanism to establish the invalidation.11 Moreover, the court rebuffed McLeod’s assertion that amendment of the annulment statute in 2005 modified the Toutant rule. The change simply clarified that annulments are the subject of Wis. Stat. chapter 767, but the bases for voiding a marriage come under Wis. Stat. chapter 765. To read the rule otherwise would severely limit a court’s authority to address fraud, mistake, and other exigencies in a disputed marriage and deprive parties to an estate action of declaratory remedies. Such a result clashes with the public policy to protect the “best interests” of a marriage. Accordingly, the court reversed and remanded for a determination of whether Laubenheimer had capacity to enter into marriage at the time of the ceremony.

    Justice Ziegler and Justice Gableman wrote separate dissents, the former urging legislative action to clarify some perceived confusion in the statutes, and the latter asserting that the majority has gone beyond a legislative intent that annulment and divorce are the only means of invalidating a marriage.

    Involuntary Medication Order

    Outagamie Cnty. v. Melanie L.12

    This case presents the supreme court’s first interpretation of a 1995 statutory provision establishing an alternative standard to determine the competency of a person to refuse involuntary administration of medication. Here, the supreme court held that the circuit court had misstated the county’s burden of proof under Wis. Stat. section 51.61(1)(g)4.b. to obtain an order for involuntary administration, and that the county had failed to meet the clear-and-convincing standard for proof that a mental health patient was “substantially incapable of applying” an understanding of the advantages, disadvantages, and alternatives of her prescribed medication to her mental illness so as to make an informed choice to receive or refuse the medication.

    Justice Prosser, writing for the court, cautioned that medical experts must apply the full statutory standards, not partial standards. Also, in an effort to meet its burden of proof, a county should compile a detailed record of the mentally ill person’s noncompliance in taking prescribed medication and then tie that noncompliance to the person’s inability to understand the pros and cons of, and alternatives to, accepting that medication to treat his or her mental illness.13

    Melanie L. had stipulated to commitment by the county under Wis. Stat. chapter 51 for six months of outpatient mental health care and custody and also stipulated to an order for involuntary administration of medication.14 Later, the county sought a 12-month extension of both orders, asserting that Melanie was incompetent to refuse medication under Wis. Stat. section 51.61(1)(g)4.b. After the doctor for the county opined that Melanie was “not capable of applying the benefits of the medication to her advantage,” Melanie contended that that opinion and supporting evidence did not satisfy the county’s burden of proof.15

    The circuit court found that Melanie could reflect on her treatment and course of treatment in an intelligent way, but that the very nature of her underlying diagnosis of paranoia and delusional thinking was a concern for the reliability of her own self-assessment.16 The court granted the county’s petition to extend the involuntary medication order. The court of appeals affirmed, giving deference to the circuit court’s findings, ruling that the opining doctor did not have to “iterate the specific words of the statute,” and disagreeing that the circuit court had based its involuntary medication order on the fact that Melanie had a mental illness.17

    On review, the supreme court traced the development of Wisconsin’s competency standard for refusing medication. The court said the standard tracked the tension between a person’s liberty interest in avoiding forced medication and the state’s interest in administering treatment to a patient subject to a commitment order.18 In 1987, in State ex rel. Jones v. Gerhardstein, the supreme court had concluded that the then-existing competency standard violated equal protection, finding no rational basis to distinguish between persons awaiting commitment – who had a statutory right to exercise informed consent to refuse medication – and those subject to a final commitment order who had no such right.19 Such a dichotomy essentially equated involuntary commitment with a finding of incompetence to evaluate the advantages and disadvantages of taking psychotropic drugs. The legislature amended the competency standard after Jones was handed down.

    In 1994, the supreme court analyzed the competency-standard amendment in Virgil D. v. Rock County.20 The Virgil D. court reaffirmed that the plain language of the statute was the standard, and that it could not be displaced by a psychiatrist’s testimony that the patient lacked competence because he did not appreciate his own mental illness.21 Virgil D. also affirmed the presumption that a person is competent to make the decision to refuse medication.

    Consequently, in 1995, the legislature again amended the statute, to its present form, which provided a second alternative standard for determining competency to refuse medication. The two standards now are whether an individual 1) is incapable of expressing an understanding of the advantages and disadvantages of refusing medication or 2) is substantially incapable of applying an understanding of those same potential effects of refusing the medication. The second standard is more relaxed, and because that was the standard applied to Melanie L, the supreme court proceeded to assess the statutory terms. 

    Subsection 4.a. of Wis. Stat. section 51.61(1)(g) uses the term “incapable” before the phrase “expressing an understanding.…” Looking to the dictionary, the supreme court ruled that a person is “incapable” if he or she cannot express the advantages and disadvantages of a medication or treatment – a fairly rigorous standard for the county to meet. In contrast, subsection 4.b. of Wis. Stat. section 51.61(1)(g) uses “substantially incapable”: essentially, that “to a considerable degree” the person lacks capacity to apply an understanding of the advantages and disadvantages, and so on. “Applying an understanding” in sub. 4.b. requires a person to make a connection between an expressed understanding of the benefits and risks of medication and the person’s own mental illness.22

    Here, Melanie argued that the ability to recognize one’s own mental illness is sufficient to meet the second standard. The supreme court disagreed, concluding that ability to recognize one’s mental health issue or to list medication side effects is not the same as applying one’s own understanding to one’s own problem. In short, Melanie argued for a standard that would require listing and naming; the court deemed the standard much more complex, requiring articulation of a relationship between a particular condition and various potential effects of treatment and nontreatment options. The court then explained that because the person subject to the order cannot be forced to testify, the medical experts for the county must detail how they probed the issue of whether the person can apply his or her understanding to his or her own condition. The court underscored that in this circumstance, “facts and reasoning are nearly as important as conclusions.”23

    Deeming this a close case, the supreme court reiterated that the standard of proof is clear and convincing, reflecting the liberty interest at risk. Here, the record of unexplained noncompliance and resulting problems should have been more detailed. An amicus brief attributed the lack of clarity in the record to a possible blending of the commitment and involuntary medication questions, particularly when commitment is on an outpatient basis.24 Because the standard, and the evidence offered to meet it, were not as clearly articulated or complete as required, the court reversed, holding that the county had not overcome the presumption that Melanie was competent to make an informed choice to refuse medication.

    Justice Ziegler wrote a dissent, arguing that the evidence was sufficient to support extending the involuntary medication order and that more deference should have been afforded the circuit court’s findings.

    Ongoing Private Nuisance, Immunity, and Abatement

    Bostco LLC v. Milwaukee Metro. Sewerage Dist.25

    Bostco alleged that the Milwaukee Metropolitan Sewerage District’s (MMSD’s) negligent operation and maintenance of a deep sewer tunnel beneath its property resulted in excessive groundwater seepage into the deep tunnel, causing significant damage to Bostco’s buildings. Bostco sought monetary damages and equitable relief. On review, the primary issues were the following: 1) whether the MMSD has immunity for its construction and maintenance of the tunnel, pursuant to Wis. Stat. section 893.80; and 2) if immunity was not afforded, may Bostco obtain equitable relief in the form of abatement of the excessive groundwater seepage. Both parties raised other issues as well.

    The supreme court, in a decision written by Justice Roggensack, held that 1) because the claim of negligent maintenance of the deep tunnel was a private ongoing nuisance, and not a legislative, quasi-legislative, judicial, or quasi-judicial act, the MMSD was not entitled to immunity; and 2) because the MMSD had notice that the nuisance was a cause of significant harm, neither the damage caps nor the exclusive-remedy provisions of Wis. Stat. section 893.80(3),(4), or (5) abrogated the MMSD’s duty to abate the nuisance.26

    The Boston Store complex is more than 100 years old. It was built on wood-pile foundations that supported the columns of five interconnected buildings. When constructed, the pilings were below the water table and fully saturated. The water protected the pilings from rot. The Milwaukee deep tunnel was constructed in the early 1990s, with a segment one block east of Boston Store. Over time, the water surrounding the Boston Store pilings was drawn down and the buildings sustained structural damage. In 2004, Bostco sued, alleging that the MMSD’s operation and maintenance of the deep tunnel caused the drawdown and resulting deterioration of the pilings. The complaint alleged common-law negligence, continuing private nuisances, and other claims and sought abatement as well as monetary damages.27

    A jury awarded damages after finding that the MMSD was negligent in its maintenance of the deep tunnel and that the negligence was a cause of Bostco’s injury. The jury also found that the negligent maintenance interfered with Bostco’s use and enjoyment of its property, and that the MMSD could abate the interference by reasonable means and at reasonable cost. The jury did not find, however, that the interference resulted in “significant harm” to Bostco.

    On postverdict motions, the MMSD sought judgment notwithstanding the verdict, based on asserted governmental immunity, and Bostco successfully obtained an order for abatement. The court of appeals concluded that Bostco had suffered “significant harm” and thus proved its claim for private nuisance. The court of appeals affirmed that the MMSD was not entitled to immunity, but the court also relied on a statutory damages cap to conclude that abatement was unavailable.

    On review, the supreme court explained that the scope of the duty to abate, and the possible immunity for a claim of abatement based on negligent maintenance of a private nuisance, are interrelated concepts.28 A nuisance is a condition or activity that unduly interferes with a public right or with the use and enjoyment of private property. Liability for nuisance is founded on the wrongful act in maintaining the nuisance, and the act may be intentional or negligent.29 The duty to abate a nuisance arises when a person or entity has notice that it is maintaining a nuisance that is a cause of significant harm. Even though the governmental unit may have discretion in selecting the particular means of abatement, the duty to abate is not discretionary. Generally, governmental units are not shielded from liability for maintaining a private nuisance.30

    The court traced a line of private-nuisance cases alleging flooding damage caused by municipalities that failed to maintain sewer or water systems. The most recent involved the MMSD as a plaintiff asserting that the city of Milwaukee had failed to properly service a water main that had burst and damaged the deep tunnel. In that case, the MMSD had not established that the city had notice of the leaking water main. Such notice was required before imposing a ministerial duty to abate the nuisance by making repairs.31 An earlier case defined a continuing nuisance as an ongoing or repeated disturbance that can be discontinued and abated.32 Although the analysis seems somewhat circular, the court concluded that because here the jury found that the MMSD could abate by reasonable means and at reasonable cost, the MMSD knew that excessive siphoning of water into the deep tunnel was a cause of significant harm to Bostco and could have stopped it.

    The court then addressed the statutory provisions that the MMSD asserted should provide immunity, Wis. Stat. section 893.80(4) and (3). The first provision affords immunity for intentional torts of governmental officers and for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions. While a governmental act to install a structure may be a legislative or quasi-legislative decision, once the installation decision is made the entity assumes a ministerial duty to maintain the system as a matter of ordinary care.33 Here, the court of appeals had acknowledged that the MMSD was not immune under section 893.80(4), but held that the damages cap of section 893.80(3) precluded equitable relief against governmental units. Reversing, the supreme court applied a plain-meaning approach to the terms “amount recoverable” and “by any person” in that subsection, to conclude that Wis. Stat. section 893.80(3) imposed no prohibition of (or cost limitation on) equitable relief.34

    The court of appeals also had applied Wis. Stat. section 893.80(5), with its phrase “shall be exclusive,” to limit a plaintiff’s recovery to remedies expressly set out in Wis. Stat. section 893.80 and to preclude injunctive relief. The supreme court was reluctant to infer such a broad limitation on remedies. Such a holding, it feared, would overrule extensive precedent authorizing courts to enjoin governmental units, citing cases affording declaratory relief and statutes authorizing temporary injunctions.35 Moreover, the public policy consideration behind substantive immunity for monetary damages lacks the same force in actions for declaratory or injunctive relief.36

    To bootstrap its conclusion that equitable relief such as abatement is not implicitly foreclosed by Wis. Stat. section 893.80(5), the court modified Johnson v. City of Edgerton,37 a decision that employed broad language suggesting injunctive relief was not available against governmental units. Clarifying, the court held that equitable relief is barred when a governmental unit is entitled to immunity. Such a bar does not apply if the entity is not immune because the tortious conduct was ministerial. Finally, although affirming the circuit court’s order for abatement, the supreme court disagreed that lining the deep tunnel was the required means of abatement, and remanded for a hearing to establish the appropriate means.

    Justice Gableman concurred to urge abandonment of the concepts of ministerial-duty and known-danger exceptions. He recommended adoption of a “planning-operational” distinction to determine whether governmental action is legislative, quasi-legislative, judicial, or quasi-judicial.38 Chief Justice Abrahamson wrote a lengthy dissent, opining that the MMSD should be afforded immunity because it has operated the deep tunnel in the manner in which it was designed. In her view, the majority decision fundamentally increases governmental liability, and at a minimum the decision should have been given a delayed effect to allow public bodies to prepare for new liabilities.39

    Public-Officer Immunity – Ministerial-Duty Exception

    Brown v. Acuity40

    Both the circuit court and the court of appeals concluded that a volunteer firefighter who drove through a red light at night, using flashing lights but no audible siren, had sufficient discretion to do so and thus was cloaked in public-officer immunity. Justice Bradley, writing for a unanimous supreme court, reversed and held that although the firefighter, Burditt, was acting in the course of his employment, his conduct fell within the ministerial-duty exception to the public-officer immunity of Wis. Stat. section 893.80(4), because proceeding through the intersection without an audible signal violated Wis. Stat. chapter 346.41

    Burditt had been a volunteer firefighter and member of the Okauchee Fire Department (OFD) for six years. When volunteers receive an emergency call, they usually travel to the fire station first, choosing their own means and manner of travel. The OFD operating guidelines permitted volunteers to use emergency lights but not sirens on their personal vehicles, and the manual cautioned, “No warning device will automatically grant you the right of way!” The manual also stated that Wis. Stat. section 346.03 applies to emergency vehicles and reminded volunteers they are responsible for operating within these guidelines when operating vehicles for the OFD.

    Burditt later acknowledged that he had no authority to proceed against the red stop light.42 But he asserted he was within the scope of his employment when the accident occurred, and that his acts in proceeding through the intersection were discretionary, entitling him to immunity. The circuit court agreed, considering the duty to obey traffic laws distinct from a ministerial duty. The court of appeals reasoned that because the OFD decides when a call goes out, and to whom, Burditt was within the scope of his employment while en route to the fire house. The court of appeals also concluded that the failure to use both an audible and a visual signal when going through a red stop signal subjected Burditt to the penalty for violating Wis. Stat. section 346.03(3) but did not make his duty to comply ministerial.

    Burditt argued to the supreme court that he was acting within the scope of employment as soon as he chose to respond to the emergency call, in contrast to the “commuter rule,” which provides that an employee is not acting within the scope of employment when going to and from an employment site.43 The DeRuyter case had focused on the degree of employer control, or conversely, whether the employee was actuated by a purpose to serve the employer. Another case refined the inquiry to rule there is no requirement that serving the employer be the employee’s only or primary purpose.44

    The supreme court recognized that in a situation in which the employee does not have a fixed place of employment, something other than DeRuyter should apply. Burditt was more like the physical therapist who travels to each patient’s home to provide therapy services. Finding no dispute that Burditt was actuated by a purpose to serve the OFD when he responded to the call, the court affirmed that he was within the scope of his employment.45

    Next, the supreme court considered whether Burditt’s conduct qualified for an exception to public-officer immunity. The plaintiffs argued that Burditt’s disregard of the statutory requirement to obey red lights unless his vehicle has an active emergency light and an audible signal precluded immunity. Under Wis. Stat. section 893.80(4), a public officer is immune from suit for acts that are legislative, quasi-legislative, judicial, or quasi-judicial.

    One of the exceptions to this immunity is when the conduct is performance of a ministerial duty imposed by law.46 A duty is ministerial if it is “absolute, certain and imperative,” and the time, mode, and occasion for its performance are so certain that nothing remains for judgment or discretion.47 Wis. Stat. section 346.03 permits an authorized emergency vehicle to proceed through a red or stop signal but only after slowing down, “giving a visual signal,” giving an audible signal (either a “siren or exhaust whistle”), and then proceeding with due regard for the circumstances.48

    Distinguishing other instances of challenged immunity for officers involved in traffic accidents, the court concluded that Burditt had no discretion to disobey the requirements of section 346.03(3), and that those requirements were “absolute, certain and imperative.” Although not necessarily imposing a ministerial duty, the guidance of the OFD manual was consistent with the traffic statute.49

    Authority to Regulate Navigable Waters

    Rock-Koshkonong Lake Dist. v. DNR50

    Here, the court grappled with fundamental questions of the scope of the Department of Natural Resources’ (DNR’s) statutory authority and the criteria it uses to regulate water levels in bodies of water affected by dams. As often happens in cases arising from agency action, the court first addressed questions of appropriate deference. What does not often follow is the conclusion that the agency’s rulings are subject to de novo review. That was the situation here, however, because the DNR’s water-level order was heavily influenced by its legal determinations interpreting its own authority under the state constitution, the scope of agency power, disputed interpretations of statutes, and reliance on rules outside Wis. Stat. chapter 31.51

    The supreme court also held that the DNR inappropriately relied on the public-trust doctrine instead of its police power to protect nonnavigable wetlands and waters. The DNR is authorized to consider water-level impact on adjacent property per Wis. Stat. section 31.02(1) and may consider water quality based on chapter NR 103 of the Wisconsin Administrative Code. The court held that the DNR erroneously excluded most testimony on the economic effect of lower water levels in Lake Koshkonong. Even though the DNR has broad discretion, the court held it must consider all probative evidence when its decision is likely to favor some interests and adversely affect others.52

    In 2003, the Rock-Koshkonong Lake District (the district) petitioned to raise the DNR-designated water levels of Lake Koshkonong. The Rock River flows out of the lake six miles north of Indianford Dam in Rock County. In 1991, the DNR ordered that the lake’s targeted average depth be five feet. Of the 27 miles of shoreline, 10 miles have been developed for residential and commercial use. More than 12 miles of shoreline are wetlands, rich in diverse wildlife and vegetation. The wetlands shoreline had eroded as a result of increased average water levels. The Indianford Dam has been in operation since 1851, with the district operating it since 2004. Because of earlier dam deterioration, lake levels tended to exceed DNR target levels.53

    Once the Indianford Dam was fully restored in 2002, there was a significant drop from the actual levels of the prior 60 years. The district petitioned the DNR, per Wis. Stat. section 31.02(2), to raise the levels and thereby avoid severe restrictions on recreational activities and additional extensions of piers to reach navigable levels and to prevent shore erosion and negative effects on wetlands species. Section 31.02(1) authorizes the DNR to regulate dams and bridges affecting state navigable waters, including controlling level and flow in the interest of public rights or to promote safety. In April 2005, the agency issued a proposed order denying the petition, maintaining the summer maximum level but raising slightly the winter draw-down level. The matter moved to a contested-case hearing.

    During the 10-day-long hearing, citizens testified as to how the petition would affect their community and personal interests, and the parties supplied expert testimony. DNR experts focused on how they would ensure the water level satisfied the wetland water-quality standards of chapter NR 103 of the Wisconsin Administrative Code. Additional testimony suggested raised water levels would increase backups, causing more field flooding and crop loss. The district presented expert testimony that predicted water levels and probable effects on navigation, water quality, and wildlife habitat. During the hearing, the administrative law judge (ALJ) sustained DNR objections to testimony on the effect of water levels on real estate values, business income, and public revenues, on grounds that the testimony concerned “secondary or indirect impacts.”54 Later, the ALJ issued a comprehensive decision affirming the proposed order to reject the petition.55

    The circuit court affirmed the ALJ. On appeal, the court of appeals held that Wis. Stat. section 31.02(1), including its “protect … property” language, was unambiguous, noting that the legislature will expressly provide when it wants the DNR to consider property values and economic effects. The court of appeals forecast no logical stopping point if the DNR were required to consider economic factors when making a water-level determination under section 31.02(1). The court of appeals approved the DNR’s consideration of the impact of water levels on adjacent wetlands and water-quality standards.

    In its decision, the supreme court first addressed the proper standard of review. Pursuant to Wis. Stat. section 227.57(5), a reviewing court may give an agency’s statutory interpretation great-weight deference, due-weight deference, or no deference. The court noted that while the DNR brought to its enforcement of Wis. Stat. section 31.02(1) a great deal of expertise, its history of interpreting the statute is not long-standing as to some issues and is not likely to be uniform because of diverse factual circumstances. Thus, great-weight deference was not warranted. Moreover, courts are not bound by an agency’s interpretation of its own power. Because the DNR gave a new interpretation to article IX, section 1 of the Wisconsin Constitution as well as to some statutes, disregarded some past supreme court decisions, and categorically disregarded economic factors from consideration, the supreme court afforded no deference to its decision.56 

    The court went into some detail on sources of DNR authority. Article IX, section 1 of the Wisconsin Constitution commands the state to hold navigable waters in trust for the public. A historically broad interpretation of the public-trust doctrine has resulted in its application beyond commercial navigability rights to include purely recreational purposes and preserving scenic beauty.57 The court disagreed, however, that the DNR’s public-trust jurisdiction extended to nonnavigable waters and land. Navigability is the constitutional basis for DNR authority. If the public trust were extended to cover nonnavigable wetlands, significant questions about ownership of and trespass on private (lakebed) land would arise.58 Likewise, there is no constitutional basis for the DNR to consider “scenic beauty” of nonnavigable shoreland via the public-trust doctrine.

    These limits on the DNR’s constitutional public-trust authority do not, however, diminish its statutory police powers to protect property, as provided in Wis. Stat. section 31.02(1), and as applied in earlier cases such as Just v. Marinette.59 The DNR’s police powers are subject to the constitutional and statutory protections afforded to property, may be modified by the legislature, and require some balance of competing interests. Section 31.02(1) includes a discrete component giving the agency authority to regulate and control the flow of water in navigable waters “to promote safety and protect … property.” The section relating to water-level regulation affords some discretion in factors to be considered, and the section relating to dam operation and maintenance requires consideration of several factors.60 The latter includes the consideration of all riparian owners.

    The court sustained the DNR’s ability to consider, although it is not required to apply, wetland water-quality standards in the administrative code when making a water-level determination pursuant to Wis. Stat. section 31.02(1).61 To interpret the water-level statutes otherwise would unreasonably force the DNR to ignore part of its statutory mission.62 The DNR has had the dual responsibility of water-quality protection and water-level maintenance for almost 50 years.

    Last, the court held that the DNR erred by failing to consider all the economic evidence offered to show the negative effect on property.63 The DNR’s mandate under Wis. Stat. section 31.02(1) to “protect … property” does not define either term. The court thus analyzed statutory history, purpose, long-standing precedent, and the DNR’s past practice to support a broad interpretation of the phrase and to require the DNR to consider more than hydrologic damage to real property and riparian rights. Employing a reasonableness approach, the DNR must consider not only the land itself but also improvements to the land, the community’s interest in the land, and investments in and capital derived from the land.64

    Justice Crooks dissented, asserting that the majority unnecessarily constricted application of the public-trust doctrine and incorrectly required the DNR to consider secondary or indirect economic-impact evidence to protect property when making water-level determinations.

    Condemnation Procedures and Uneconomic Remnant

    Waller v. American Transmission Co.65

    The supreme court accepted this case on bypass from the court of appeals, to address the procedure for recovering value for an uneconomic remnant after certain property has been taken by condemnation. The court determined that after American Transmission Co. (ATC) took two easements for transmission lines, the balance of the plaintiffs’ property was rendered an uneconomic remnant because its resulting size, shape, and condition substantially impaired its economic viability as either a residential or an industrial parcel. The court also determined eligibility for certain damages.

    The parties had a long history of litigation. The Wallers’ property in Delavan is adjacent to Interstate 43, contained a transmission line and easement, and was subject to two highway setbacks at the time the Wallers bought it.66 During the almost 20 years the Wallers lived in their home, the nearby land that was once agricultural had become an industrial park. ATC is a public utility regulated by the Public Service Commission of Wisconsin (PSC), and holds the power of eminent domain pursuant to Wis. Stat. section 32.02(5)(b).

    ATC obtained a certificate of public convenience and necessity from the PSC to upgrade and expand transmission lines around the city of Delavan. ATC sought to buy two easements on the Wallers’ property. One easement would overlay and widen the existing transmission-line easement, the second easement would be 45 feet wide within the highway setback, and a large utility pole to support the lines would be installed. An appraiser for ATC concluded that the residential property was worth $130,000 before the condemnation, more than one-half the Wallers’ property would be under easement, and the property would have lost almost 57 percent of its previously appraised value.

    The Wallers obtained their own appraisal, which showed a pre-condemnation value of $132,000 but determined the property’s highest and best use as “vacant for industrial purpose.” The triangular shape of the parcel, combined with the multiple easements and restrictions on use, meant the “easement area represents a 100% loss of property value to the property owner.”

    As required by Wis. Stat. section 32.06(2a), ATC made several offers for the Wallers’ easements before making a jurisdictional offer. All were rejected.67 In 2008, the Wallers filed a right-to-take action under Wis. Stat. section 32.06(5). They argued that the ATC easements would cover more than half their property, rendering their residential improvements obsolete and leaving them with an uneconomic remnant under section 32.06(3m). They sought a total acquisition, including relocation benefits. Meanwhile, ATC filed a petition for condemnation proceedings under Wis. Stat. section 32.06(7), to determine just compensation and to permit ATC to take immediate possession.

    The circuit court granted immediate possession, and the commission awarded the Wallers $90,000 in just compensation for the easements. They ultimately accepted this amount but appealed the award. They also appealed the circuit court’s dismissal of their right-to-take action.

    In the first appeal, the court of appeals accepted that the presence of an uneconomic remnant affects the just-compensation determination, and that a property owner must have a right to contest a condemnation that does not acknowledge an uneconomic remnant.68 The court remanded to reinstate the Wallers’ right-to-take claim and determine whether ATC’s taking created an uneconomic remnant. Such a finding would entitle the Wallers to an offer for that remnant, as well as relocation benefits. On remand, the jury determined that just compensation after the taking was $94,000. In the right-to-take proceeding, the court found that the Wallers had lived in the house for the year since the ATC easements, the property could be used in a meaningful way, and the property and improvements retained substantial value. It thus concluded the property was not an uneconomic remnant.69

    In the second appeal, the court of appeals held that the circuit court got the sequence wrong – it should not have determined just compensation before determining whether there was an uneconomic remnant. The latter inquiry is not just a question of value; it requires a determination of whether the property is of “substantially impaired economic viability.”70

    On the second remand, much of the same testimony was offered. The circuit court ruled that the taking left the Wallers with an uneconomic remnant based on the jurisdictional offer of 76 percent of pre-taking value, both appraisers had agreed the taking made the residential improvements obsolete, and after both transmission lines were activated, the Wallers experienced regular electronic interference that raised health concerns, plus the removal of shrubbery detracted from the aesthetic appeal and eliminated a sound barrier to the interstate. The circuit court imposed an additional $47,000 on ATC to acquire the full property, and later awarded the Wallers $211,000 in litigation expenses.71

    Not long after, the Wallers sought relocation benefits, which ATC denied. At trial, a relocation specialist for the state testified that the Wallers were displaced persons under Wis. Stat. section 32.19(2)(e)1.a., because their home no longer was safe, decent, or sanitary. The specialist said he was relying on common sense but not on any administrative code definitions. The circuit court agreed, and awarded $26,000 in relocation costs. ATC appealed and successfully petitioned for bypass of the court of appeals.

    The supreme court began with an overview of the statutory condemnation process. Chapter 32 of the Wisconsin Statutes is structured according to the purpose for which condemnors seek property. Under Wis. Stat. section 32.02, public utilities have condemnation power and must use the procedures in section 32.06. If negotiations do not yield an accepted offer, the utility makes a section 32.05(3) “jurisdictional offer,” which describes the interest sought to be taken, proposed occupancy date, amount of compensation offered and other items such as relocation benefits, if applicable.

    Section 32.06(3) describes the concept of “uneconomic remnant.” Under section 32.06(8), a condemnee may challenge the amount of the jurisdictional offer before the county condemnation commission; challenges for any reason other than adequacy of compensation offered are brought in right-to-take proceedings under section 32.06(5). A trial in a right-to-take proceeding may proceed at the same time as condemnation proceedings under section 32.06(7).72

    The first issue concerned timing – when must an owner raise an uneconomic-remnant claim? The court considered the legislative history and concluded that while condemnors are given authority to acquire uneconomic remnants, they do not have sole authority to determine whether such a remnant exists. There must be some opportunity for the condemnee to assert and prove the uneconomic-remnant claim.73 Attempting to reconcile the Wis. Stat. section 32.06(3m) text that the condemnor “shall offer to acquire the remnant concurrently” with the text of the section 32.06(5) right-to-take provision, “such an action shall be the only manner in which any issue other than the amount of just compensation or other proceedings to perfect title … may be raised,” the court observed that the question in an uneconomic-remnant claim is the extent of the property the condemnor has the right or the obligation to acquire. Because it affects the right to a partial taking, this analysis should be part of a right-to-take proceeding before just compensation is determined.74

    The court then reviewed the circuit court’s findings that the ATC easements substantially impaired the economic viability of the Wallers’ property. The existence of an uneconomic remnant will not always depend on the percentage of land or value taken by the condemnor but most often on the economic viability of what is left after the taking.75 The findings were not clearly erroneous, even though the Wallers lived in the home after the transmission lines were fully energized. Habitability should not be confused with substantial economic impairment. Then, assessing the propriety of relocation expenses, the court explained that a person’s move need not be forced or involuntary before the person can be deemed “displaced” and entitled to relocation expenses.76

    In dissent, Justice Bradley criticized the majority for “rewriting and broadening” the statutory definition of uneconomic remnant and said she feared this decision will spawn a cottage industry of uneconomic remnants. The dissent also disagreed with the dual procedure established and viewed the litigation expenses awarded to be out of proportion to the property’s small dollar value.77

    CRIMINAL CASES

    Discovery Sanction and Rebuttal Evidence

    State v. Novy78

    In this case, discovery sanctions effectively were rescinded, risking possible future discovery noncompliance as a result of weakened enforcement. The circuit court here initially excluded certain fingerprint evidence after the state committed discovery violations under Wis. Stat. section 971.23. After the defendant testified such that the physical fingerprint evidence and related testimony could controvert his testimony, the circuit court allowed the previously excluded fingerprint evidence in rebuttal. Justice Roggensack, writing for the supreme court, held that the circuit court properly applied Wis. Stat. section 971.23 under its broad discretion, and affirmed. The court also held that Novy was not deprived of his right to a fair trial given that the circuit court did not find, as he asserted, that a juror was asleep during the defense’s closing argument.

    Novy was charged with multiple counts of bail jumping and with stalking and harassing his former fiancé. During opening statements, the prosecutor referred to fingerprint evidence that had been lifted from a pay phone that Novy allegedly used to call the former fiancé on a particular night. Defense counsel objected on grounds the fingerprint cards had not been provided during discovery, despite a request. The circuit court applied Wis. Stat. section 971.23 and granted the motion to exclude the evidence.79

    After the prosecution’s case was completed, the court granted the defense motion to dismiss the bail-jumping charges related to the alleged call from the pay phone, because without the fingerprint evidence there was nothing to link Novy to the phone. The defense also sought to preclude any questioning about that call, but the state asserted it was related to a course of conduct supporting a second stalking charge, and the court permitted Novy to be questioned. Novy denied he used the pay phone that night to call the former fiancé. During rebuttal, the defense objected to the state’s request to offer the fingerprint evidence, arguing it did not prove Novy had used the phone that particular night, and that Wis. Stat. section 971.23(1) and (7m) mandated that evidence excluded for discovery violations must be excluded throughout the trial. The court allowed the evidence.80

    Section 971.23(1) provides that upon demand, the state must disclose, before trial, information including the following:

    “(d) A list of all witnesses … whom the district attorney intends to call at trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only....

    “(g) any physical evidence that the district attorney intends to offer in evidence at trial” (emphasis added).

    Section 971.23 also provides the following:

    “(7m) Sanctions for failure to comply.

    “(a) The court shall exclude any … evidence not presented for inspection or copying required by this section, unless good cause is shown….”

    Before this case, no Wisconsin appellate court had determined what effect, if any, paragraph (7m)(a) has on paragraph (1)(d)’s exception for discovery of rebuttal testimony.

    Novy argued that once the fingerprint evidence was excluded, the circuit court lacked discretion to admit it later on a different basis, relying on the mandatory “shall exclude” language of Wis. Stat. section 971.23(7m). The supreme court turned to State v. Konkol,81 to reconcile the tension between the exclusionary sanction provisions and a court’s general discretion to admit evidence.82 The Konkol court noted that the test for bona fide rebuttal evidence is not whether it could have been admitted in the state’s case in chief, but whether it became necessary and appropriate upon presentation of the defendant’s case.

    Accordingly, the supreme court reasoned that an initial exclusion need not be absolute, because circuit courts retain significant discretion to admit rebuttal evidence. The standard, taken from State v. Watson,83 is that “any evidence otherwise admissible that in any respect tends to contradict the witness, is admissible for rebuttal.”84 In short, the statutory mandate excluding evidence, regardless of the purpose for which the state initially sought to offer it, can be superseded by a circuit court’s discretion to admit rebuttal evidence. Under the court’s conclusion, the Watson qualifier that the evidence must be “otherwise admissible” appears to embrace evidence already excluded as a discovery sanction under Wis. Stat. section 971.23(7).

    In a dissent-like concurrence, Chief Justice Abrahamson disagreed with the interpretation of section 971.23 and its application to the instant facts. The concurrence asserted that the question was whether physical evidence can be introduced in rebuttal, when that same evidence was excluded as a discovery sanction, and when Wis. Stat. section 971.23(1)(d) excepts rebuttal witnesses while Wis. Stat. section 971.23(1)(g) does not except rebuttal physical evidence. Chief Justice Abrahamson said the majority had unduly meshed physical evidence (the fingerprint cards) with witness testimony, changing the nature of the issue originally presented. The concurrence also considered the majority to have erred in characterizing the trial judge’s statement that she had not seen the juror sleeping as a factual finding that ended the right-to-a-fair-trial inquiry.

    Prayer-Treatment Exception to Criminal-Child-Abuse Statute

    State v. Neumann85

    In this case, the court was asked to address the scope of Wisconsin’s prayer-treatment law. The court’s decision, authored by Chief Justice Abrahamson, may save lives while still preserving the legislatively intended respect for parental care through prayer.

    Madeleine Kara Neumann died from diabetic ketoacidosis that developed from untreated juvenile diabetes. Her parents had chosen to respond to her undiagnosed serious illness with prayer rather than medicine. Both parents were charged with second-degree reckless homicide and each was convicted, in separate trials. The parents asserted that because the prayer exception protects them from prosecution under the child abuse statute, they were deprived of due process and fair notice that they could be prosecuted under the reckless homicide statute, should their child die after being treated with prayer.

    Addressing a question of first impression in Wisconsin, the supreme court concluded that the second-degree reckless homicide and criminal-child-abuse statutes provided adequate notice that the parents’ conduct could have criminal consequences if their child died, and the court affirmed the convictions.

    Kara had suffered worsening symptoms over the course of several weeks, but as late as the Thursday before she died, she might have appeared healthy. On Friday night, she was too tired to finish her homework. On Saturday, she slept all day, and in the afternoon her mother found her pale, with her legs skinny and blue. Her mother recognized something was wrong, and she and her husband began praying for Kara and rubbing her legs. The father also asked other people to pray for Kara. The parents did not know what was wrong with Kara, but they knew her condition was serious and she needed attention. Her grandmother suggested that they take her to a physician, but the mother stated that “God will heal her.”

    By the time the parents went to sleep Saturday night, Kara was unable to walk or talk. Her brother thought she was in a coma. Other people continued to come to the house on Sunday to pray for Kara. While some thought she was comatose, none sensed danger in the condition. On Sunday afternoon, a friend arrived and after seeing Kara, urged that she be taken to a hospital. Mr. Neumann said he had suggested that to his wife, but she believed the illness was a test of faith and that the Lord would heal Kara. Emergency personnel arrived after a relative called for assistance. The paramedics noted a fruity odor and found that Kara’s blood sugar was too high to read. She appeared malnourished and skeleton-like, was dehydrated, and had blue-gray skin. The emergency room physician testified that if a child is brought in with diabetic ketoacidosis but still breathing and has a heartbeat, the prognosis for survival is very good. Kara died at the hospital.

    The following principles guided the analysis of whether the Neumanns had constitutionally fair notice that they could be charged with second-degree reckless homicide. First, a challenged statute need not define with absolute clarity and precision what is and is not unlawful conduct. Second, a fair degree of definiteness is all that is required.86 Third, a scienter requirement may mitigate a criminal law’s vagueness by ensuring that it punishes only those people who are aware their conduct is unlawful.

    The supreme court analyzed the terms of the reckless homicide and child abuse statutes against the terms of the prayer-exception provision. The prayer exception expressly applies only to the criminal-child-abuse statute, with no cross-reference to the reckless homicide statute. The exception language is narrow: the statement that “a person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone” suggests there is no blanket protection from criminal liability for treatment through prayer. Moreover, treatment through prayer is not listed with other defenses to criminal liability in Wis. Stat. chapter 939. Consequently, the court concluded that no one reading the treatment-through-prayer provision should expect protection from criminal liability under any other statute.87

    The parents argued that because the term “great bodily harm” appears in each of the three provisions, the treatment-through-prayer exception protected their conduct until their child’s medical condition progressed to at least some point beyond a substantial risk of death. Given this juxtaposition of the statutes, the parents asserted there was no clear moment when they were on notice that their failure to provide Kara with medical care had crossed the line into liability for reckless homicide. This reading, however, would mean that notice would come only at the point of death. The court refused to approve such a reading.

    Instead, the court explained that the differences in the statutes must have meaning, discussing the various mens rea elements in the statutes, as well as the differences in the harm sought to be prevented. The court explained that a subjective scienter requirement can alleviate vagueness, because an actor who knows what he or she is doing and is aware of the unlawful risk cannot claim he or she did not know the conduct was prohibited.88 Applying the mens rea and conduct elements of the statute, the focus is on the severity of the symptoms displayed, the parents’ awareness of the severity of the symptoms, and the parents’ subsequent failure to seek medical care.89

    The supreme court also addressed the propriety of the jury instructions on “duty” and “religious belief” and considered the lower court’s refusal to instruct about the effect of a parent’s sincere belief in prayer.90 The court also held that the real issue or controversy was fully tried.

    Justice Prosser filed a dissent, highlighting the medical difficulty in accurately diagnosing conditions like diabetic ketoacidosis and taking issue with the majority’s conclusion that while many people were in the Neumann home with essentially the same awareness of Kara’s condition, only the parents were alleged to have a “duty” to act. Despite the majority’s explanation of the differences between the harms and mens rea in each statute, the dissent viewed the prohibited conduct in each as essentially the same, thus depriving the Neumanns of fair notice that they were protected from prosecution under one statute but not under the other.

    Endnotes

    1 Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634.

    2 Id. ¶ 37.

    3 Id. ¶¶ 41-43 (discussing Wis. Stat. §§ 69.14(1)(h), 891.40(1), ch. 767).

    4 McLeod v. Mudlaff, 2013 WI 76, 350 Wis. 2d 182, 833 N.W.2d 735.

    5 Id. ¶ 2.

    6 Id. ¶ 6 (reaffirming Ellis v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692).

    7 Id. ¶¶ 10-20.

    8 Id. ¶ 31.

    9 Id. ¶¶ 38-43.

    10 Id. ¶¶ 49-54 (citing 171 Wis. 2d 381, 177 N.W.2d 683 (1920)).

    11 Id. ¶¶ 65-69.

    12 Outagamie Cnty. v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607.

    13 Id. ¶¶ 9, 67.

    14 Id. 19.

    15 Id. ¶¶ 2-6, 27.

    16 Id. ¶ 33.

    17 Id. ¶ 35.

    18 Id. ¶¶ 42-43, 58.

    19 Id. ¶¶ 44-45 (citing State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 734, 416 N.W.2d 883 (1987)).

    20 Virgil D. v. Rock Cnty., 189 Wis. 2d 1, 524 N.W.2d 894 (1994).

    21 Melanie L., 2013 WI 67, ¶ 48, 349 Wis. 2d 148 (discussing Virgil D.).

    22 Id. ¶¶ 68-71.

    23 Id. ¶¶ 72-75.

    24 Id. ¶¶ 92-94.

    25 Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, Wis. 2d, 835 N.W.2d 160.

    26 Id. ¶¶ 4-5.

    27 Id. ¶¶ 11-12.

    28 Id. ¶ 25.

    29 Id. ¶¶ 30-32.

    30 Id. ¶ 34.

    31 Id. ¶¶ 39-40.

    32 Id. ¶ 42 n.23 (citing Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d 461, 470, 588 N.W.2d 278 (Ct. App. 1998)).

    33 Id. ¶ 51.

    34 Id. ¶¶ 55-58.

    35 Id. ¶ 59 n.32.

    36 Id. ¶ 62 (citing Lister v. Board of Regents, 72 Wis. 2d 282, 304, 240 N.W.2d 610 (1976)).

    37 Johnson v. City of Edgerton, 207 Wis. 2d 343, 558 N.W.2d 653 (Ct. App. 1996).

    38 Bostco LLC, 2013 WI 78, ¶ 103, Wis. 2d (Gableman, J., concurring).

    39 Id. ¶¶ 120-24 (Abrahamson, C.J., dissenting).

    40 Brown v. Acuity, 2013 WI 60, 348 Wis. 2d 603, 832 N.W.2d 560.

    41 Id. ¶¶ 3-4.

    42 Id. ¶ 8.

    43 Id. ¶ 25 (citing DeRuyter v. Wisconsin Elec. Power Co., 200 Wis. 2d 349, 546 N.W.2d 534 (Ct. App. 1996)).

    44 Id. ¶¶ 30-31 (citing Olson v. Connerly, 156 Wis. 2d 488, 457 N.W.2d 479 (1990)).

    45 Id. ¶¶ 35-39 (citing Murray v. Travelers Ins. Co., 229 Wis. 2d 819, 828, 601 N.W.2d 661 (Ct. App. 1999)).

    46 Id. ¶ 42 (citing Lodl v. Progressive N. Ins. Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314).

    47 Id. ¶ 43 (citing Lister v. Board of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976)).

    48 Id. ¶¶ 45-47.

    49 Later in the term, as noted in the summary of the Bostco decision above, Justice Gableman concurred to urge that the ministerial-duty rubric be discarded and replaced.

    50 Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800.

    51 Id. ¶¶ 5-10.

    52 Id. ¶¶ 10-13.

    53 Id. ¶¶ 19-23.

    54 Id. ¶ 43.

    55 Id. ¶ 13.

    56 Id. ¶¶ 61-62.

    57 Id. ¶ 72.

    58 Id. ¶¶ 84, 110.

    59 Id. ¶¶ 95-99 (citing 56 Wis. 2d 7, 201 N.W.2d 761 (1972)).

    60 Id. ¶¶ 104-06.

    61 Id. ¶¶ 111-25.

    62 Id. ¶¶ 115-16 (citing Wis. Stat. 281.92).

    63 Id. ¶¶ 126-52.

    64 Id. ¶¶ 139, 146.

    65 Waller v. American Transmission Co., 2013 WI 77, 350 Wis. 2d 242, 833 N.W.2d 764.

    66 Id. ¶¶ 11-12.

    67 Id. ¶¶ 23-25.

    68 Id. ¶¶ 30-32.

    69 Id. ¶¶ 35-36.

    70 Id. ¶ 39.

    71 Id. ¶¶ 42-44.

    72 Id. ¶¶ 54-68.

    73 Id. ¶ 77.

    74 Id. ¶¶ 90, 118.

    75 Id. ¶ 95 n.25.

    76 Id. ¶¶ 15-117.

    77 Id. ¶¶ 125-27.

    78 State v. Novy, 2013 WI 27, 346 Wis. 2d 375, 828 N.W.2d 225.

    79 Id. ¶¶ 9-10.

    80 Id. ¶¶ 13-14.

    81 State v. Konkol, 2002 WI App 174, 256 Wis. 2d 725, 649 N.W.2d 300.

    82 Novy, 2013 WI 27, ¶¶ 40-41, 346 Wis. 2d 375.

    83 State v. Watson, 46 Wis. 2d 492, 500, 175 N.W.2d 244 (1970).

    84 Novy, 2013 WI 27, ¶ 44, 346 Wis. 2d 375.

    85 State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560.

    86 Id. ¶ 34.

    87 Id. ¶ 50.

    88 Id. ¶ 77.

    89 Id. ¶ 82 n.47.

    90 Id. ¶¶ 92-140.