Criminal Procedure
Right to Testify – Forfeiture – Harmless Error
State v. Anthony, 2015 WI 20 (filed 3 March 2015)
HOLDING: The defendant forfeited his right to testify on his own behalf through his abusive, disruptive, and disrespectful conduct in the courtroom; even assuming the court erred, the error was harmless.
SUMMARY: A jury convicted the defendant of homicide, for stabbing to death his children’s mother, who suffered 45 puncture wounds from an ice pick along with other injuries. He claimed self-defense. The circuit court, however, refused to permit the defendant to testify on his own behalf after he repeatedly said he would testify not just about the homicide, but also about a prior “wrongful conviction” and his life going back to age 5. After repeated admonitions, the judge ruled that the defendant had forfeited his right to testify. In an unpublished decision, the court of appeals affirmed, on the ground that the error was harmless.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court affirmed in a majority opinion authored by Justice Crooks. The court distinguished between a waiver (the intentional relinquishment of a known right) and a forfeiture (a failure to make a timely assertion of a right) (see ¶¶ 54-55). It held “that the right to testify may, in appropriate cases, be subject to forfeiture where conduct incompatible with the assertion of the right is at issue” (¶ 56).
The conclusion is supported by case law permitting the removal of a disruptive defendant as well as limitations on the defendant’s own trial testimony. “Surely, the preservation of dignity, order, and decorum in the courtroom constitutes a legitimate interest in the criminal trial process that may outweigh a defendant’s right to testify in certain circumstances” (¶ 60).
The circuit court record fully supported the judge’s findings. The defendant “forfeited his right to testify by displaying stubborn and defiant conduct that presented a serious threat to both the fairness and reliability of the criminal trial process as well as the preservation of dignity, order, and decorum in the courtroom” (¶ 72). His proposed testimony would have confused or misled the jury (see ¶ 77). The judge’s decision was not arbitrary or disproportionate to its purpose (see ¶ 84). For example, the judge considered and rejected any number of alternatives (see ¶¶ 89-90).
Although the court found no error, it took the opportunity to “confirm that a violation of a criminal defendant’s right to testify to relevant evidence is subject to harmless error analysis” (¶ 96). On this record, any error was harmless beyond a reasonable doubt.
Justice Bradley concurred. She concluded that the circuit court erred but that its mistake was harmless (see ¶ 110).
Chief Justice Abrahamson dissented. She argued that the circuit court violated the defendant’s constitutional rights by barring his testimony, an error not saved by harmless-error review.
Exclusionary Rule – Good-faith Exception
State v. Scull, 2015 WI 22 (filed 5 March 2015)
HOLDING: The good-faith exception applied to evidence seized pursuant to a search warrant that was based in part on a now impermissible canine sniff at the door.
SUMMARY: Police officers obtained a search warrant to search the defendant’s residence. The warrant was based on information provided by a confidential informant along with a corroborative investigation, which included a drug dog that alerted near the door to the defendant’s residence. The defendant moved to suppress the evidence on grounds that the dog sniff was itself an unlawful search that tainted the search warrant. The circuit court denied the motion.
During the pendency of this appeal, the U.S. Supreme Court decided Florida v. Jardines, 133 S. Ct. 1409 (2013), which held that such dog sniffs constitute unlawful searches unless supported by a warrant or other exception to the warrant requirement. In a published decision, the court of appeals affirmed the circuit court here, finding the police acted in good faith. See 2014 WI App 17.
The supreme court affirmed in an opinion authored by Justice Bradley. The opinion reviews the basic principles behind the Fourth Amendment’s warrant requirement and the exclusionary rule. The latter is supported by two rationales: the “assurance of judicial integrity and deterrence of unlawful police conduct” (¶ 22).
The parties conceded that the dog sniff was unlawful under Jardines. Nonetheless, “a straightforward application of our good faith jurisprudence governing police reliance on a warrant resolves our inquiry” (¶ 25). Prior state cases supported the use of drug dogs in other contexts and were consistent with U.S. Supreme Court precedent before Jardines (see ¶ 28). “Given the precedent, the commissioner’s decision to grant the warrant appears to be a reasonable application of the unsettled law at the time the warrant issued” (¶ 30).
The court then turned to cases applying the good-faith exception, including Wisconsin case law that goes beyond federal precedent.
“First, we determine whether officers conducted a significant investigation prior to obtaining the warrant. Second, we assess whether the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney. Lastly, we consider whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization, rendering the officers’ reliance on the warrant unreasonable” (¶ 38).
The supreme court held that the state had satisfied the standard on the facts of this case.
Justice Roggensack concurred, but wrote separately to “clarify” that the “assurance of judicial integrity” rationale, standing alone, is not a sufficient basis on which to exclude evidence for constitutional violations (¶ 47). She was joined by Justice Crooks, Justice Ziegler, and Justice Gableman.
Justice Ziegler also concurred, clarifying that the exclusionary rule extended beyond Fourth Amendment violations (see ¶ 62). She was joined by Justice Crooks and Justice Gableman.
Employment Law
Employee Benefits – Vested Contract Rights – Prospective Elimination of Retirement Benefit
Schwegel v. Milwaukee Cnty., 2015 WI 12 (filed 12 Feb. 2015)
HOLDING: Milwaukee County employees did not have a vested contract right to certain retirement benefits if they did not fulfill all requirements for the payment of the benefits, including retiring before dates the county established.
SUMMARY: This case involves the interpretation of Milwaukee County General Ordinance section 17.14(7)(ee)(1) (2011), which prospectively eliminated Medicare Part B premium reimbursement upon retirement for employees who did not retire before retirement dates established by Milwaukee County. The plaintiffs claim a vested contract right to reimbursement of Medicare Part B premiums upon retirement, even though they have not yet retired. The circuit court granted summary judgment in favor of the plaintiffs. In a published decision, the court of appeals reversed. See 2013 WI App 134.
In a majority decision authored by Justice Roggensack, the supreme court affirmed the court of appeals. It concluded that “Milwaukee County did not abrogate a vested contract right when it prospectively modified a health insurance benefit it offered for employees who had not yet retired. We further conclude that County employees have a vested contract right to Medicare Part B premium reimbursement when they fulfill all three criteria for its payment: (1) reaching retirement age; (2) providing 15 or more years of credited county service; and (3) retiring before the dates established by Milwaukee County. Employees who do not meet all three criteria have not fulfilled the requirements necessary to establish a vested contract right to reimbursement” (¶ 52).
Justice Prosser filed a concurring opinion. Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.
Insurance
Claims-made-and-reported Policy – Notice-prejudice Statute
Anderson v. Aul, 2015 WI 19 (filed 25 Feb. 2015)
HOLDING: Under a legal malpractice “claims-made-and-reported policy,” a lawyer’s failure to give his insurer notice of a claim during the policy period barred coverage; further, the same failure is “per se prejudicial” to the insurer within the meaning of the notice-prejudice statutes.
SUMMARY: Dissatisfied with their lawyer’s (Aul’s) representation regarding a commercial transaction, the Andersons claimed Aul’s “unwaivable” conflict constituted malpractice. It was undisputed that Aul’s legal malpractice policy required him to report the claim to WILMIC during the policy period, and that he did not report the claim until nearly a year after the period expired (see ¶ 14). When the Andersons sued Aul, WILMIC intervened and sought summary judgment, which the circuit court granted. In a published decision, the court of appeals reversed, holding that WILMIC had to demonstrate prejudice as well as untimeliness. See 2014 WI App 30.
The supreme court reversed in a majority opinion authored by Chief Justice Abrahamson, which features a comparison of claims-made-and-reported policies with other types of liability policies. The varieties of policies have engendered confusion (see ¶ 29).
“The requirement in a claims-made-and-reported policy that claims be reported within the policy period and the requirement that notice be provided ‘as soon as practicable’ or within a stated period are distinct and serve different purposes. The requirement that claims be reported during the policy period ‘is directed to the temporal boundaries of the policy’s basic coverage terms….’ If the claim is not reported within the policy period, there is no initial grant of coverage.… [T]he purpose of the requirement that notice be given ‘as soon as practicable’ or within a stated period is to enable the insurance company to begin investigating the claim” (¶ 28).
After dissecting the WILMIC policy, the court held that the two pertinent notice-prejudice statutes did not supersede the policy either (see ¶ 59). “We did not locate anything in the statutory text, the history of claims-made-and-reported policies, the statutory history, or the Committee materials indicating that the legislature intended to invalidate claims-made-and-reported policies” (¶ 83).
“In sum, the benefits to insurance companies and insureds of claims-made-and-reported policies, the statutory history underlying Wisconsin’s notice-prejudice statutes, the persuasive authority of other courts that have decided the question presented by this case, and the unreasonable results a contrary holding would produce persuade us that Wisconsin’s notice-prejudice statutes permit an insurance company to deny coverage without a showing of prejudice when an insured fails to report a claim within a claims-made-and-reported policy period” (¶ 98).
Finally, the court held that even if the notice-prejudice statutes applied, WILMIC would prevail because it would be otherwise prejudiced (see ¶ 99). The court recognized that it reached a “harsh result” because the clients had been effectively victimized twice: once by the lawyer’s malpractice and again by his failure to comply with the insurer’s policy reporting requirement (see ¶ 102). Nonetheless, “the legislature did not intend to rewrite the fundamental terms of the WILMIC insurance policy or to make the strict reporting requirement underlying claims-made-and-reported policies unenforceable in this state” (¶ 103).
Justice Ziegler concurred in the lead opinion insofar as it rests on the statutes’ plain meaning, but not its balancing of “consequences of alternative interpretations” (¶ 107). She was joined by Justice Crooks, Justice Roggensack, and Justice Gableman.
Real Property
Foreclosure of Abandoned Properties – Wis. Stat. section 846.102 – Power of Circuit Court to Order That Property Be Brought to Sale Within Reasonable Time After Redemption Period
Bank of New York Mellon v. Carson, 2015 WI 15 (filed 17 Feb. 2015)
HOLDINGS: 1) When the court determines that the property is abandoned, Wis. Stat. section 846.102 authorizes the circuit court to order a mortgagee to bring a mortgaged property to sale after the redemption period. 2) The circuit court must order the property to be brought to sale within a reasonable time (a determination to be based on the totality of the circumstances) after the redemption period.
SUMMARY: The Bank of New York Mellon sought a judgment of foreclosure and sale on defendant Shirley Carson’s mortgaged premises. Carson did not file an answer or otherwise dispute the foreclosure. The circuit court entered judgment in favor of the Bank. After acknowledging that the property was not owner occupied, the court directed that the property “shall be sold at public auction under the direction of the sheriff, at any time after three month(s) from the date of entry of judgment” (¶ 8).
After the judgment was entered, the Bank did not take steps to secure the property. It was repeatedly burglarized and vandalized. At one point someone started a fire in the garage. Despite an order from the Milwaukee Department of Neighborhood Services to maintain the property, the Bank did not do so. Carson received notices of accumulated trash and debris, as well as notices of overgrown weeds, grass, and trees. The city imposed approximately $1,800 in municipal fines on her.
More than 16 months after the judgment of foreclosure was entered, the Bank had not sold the property and had no plans to sell it. Carson filed a motion to amend the judgment to include a finding that the property was abandoned and an order that the sale of the premises be made upon expiration of five weeks after the date of entry of the amended judgment, pursuant to Wis. Stat. section 846.102 (the statute governing foreclosure of abandoned properties).
The Bank asserted that section 846.102 does not require it to sell a property after it obtains a judgment of foreclosure and the redemption period has passed. It maintained that the statute is permissive, not mandatory, and that it cannot be required to sell a property. The Bank further contended that even if the statute does mandate that the Bank sell the abandoned property after the redemption period, it provides no deadline for doing so. Thus, the Bank concluded that it is free to execute on its judgment at any time within five years after rendition of the judgment, and the circuit court is without authority to order it to sell the property at a specific time.
The circuit court denied Carson’s motion, concluding that it lacked authority to grant the motion. In a published decision, the court of appeals reversed the circuit court. See 2013 WI App 153. In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals.
The court concluded that, based on the statute’s plain language and context, “Wis. Stat. § 846.102 authorizes the circuit court to order a mortgagee to bring the property to sale after the redemption period. We further conclude, consistent with the purpose of the statute, that the circuit court shall order the property to be brought to sale within a reasonable time after the redemption period. The circuit court’s determination of what constitutes a reasonable time should be based on the totality of the circumstances in each case” (¶ 3).
Justice Prosser filed a concurring opinion that was joined by Justice Ziegler and Justice Gableman.
