Vol. 75, No. 8, August
Supreme Court Digest
This column summarizes all decisions of the Wisconsin Supreme Court
(except those involving lawyer or judicial discipline, which are
digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas
J. Hammer invite comments and questions about the digests. They can be
reached at Marquette University Law School, 1103 W. Wisconsin Ave.,
Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Criminal Penalty for the Unauthorized Disclosure of
Confidential Information Relating to Reports of Suspected Child Abuse or
Neglect - Elements of Wis. Stat. Section 48.981(7)
State v. Polashek,
2002 WI 74 (filed 26 June 2002)
This case involves a prosecution under Wis. Stat. section 48.981(7),
a law that provides a criminal penalty for the unauthorized disclosure
of confidential information relating to reports of suspected child abuse
or neglect. At issue are the elements of this crime.
The court of appeals held that when the state charges a defendant
with violating section 48.981(7), the state is not required to prove
that the recipient of the confidential information had no prior
knowledge of the information. The appellate court further concluded that
the state is not required to prove the defendant's mental state because
the statute creates a strict liability offense.
In a majority decision authored by Justice Wilcox, the supreme court
affirmed in part and reversed in part. Disagreeing with the court of
appeals, it held that disclosure within the meaning of the statute
requires proof that the recipient did not have knowledge of the
information communicated. Information cannot be "disclosed" to a
recipient who already knows the information communicated. For
information to be "disclosed" within the meaning of the statute, "the
recipient must have been previously unaware of the information at the
time of the communication" (¶ 23). Because the disclosure of
confidential information is an element of the crime, the state has the
burden to prove it beyond a reasonable doubt.
Lastly, the court considered whether the statute under which the
defendant was prosecuted (section 48.981(7)(f)) is a strict liability
statute. It agreed with the court of appeals that the legislature
intended to create a strict liability offense when it enacted this
Justice Crooks filed a dissenting opinion.
Pleadings - Untimely Filing - Sanctions - Default
Split Rock Hardwoods Inc. v.
Lumber Liquidators Inc., 2002 WI 66 (filed 21 June 2002)
The plaintiff filed and served a summons and complaint that alleged
that the defendant failed to pay for inventory that had been delivered.
By courtesy agreement, the defendant was given until Dec. 22, 1999, to
answer the complaint. On Dec. 21 the defendant served its answer on the
plaintiff, but it did not file the answer with the court until 45 days
later, after the court informed the plaintiff that no answer had been
filed. The circuit court granted the plaintiff's motion to strike the
answer and granted default judgment in the plaintiff's favor. The court
of appeals certified the case to the supreme court.
The supreme court, in an opinion written by Justice Prosser, reversed
and remanded the case for further proceedings. The opinion addressed
four principal issues concerning Wisconsin civil procedure. First, the
court addressed the requirement that an answer be filed with the court
within a "reasonable time after service," as provided by Wis. Stat.
section 801.14(4). Filing constitutes "certification" that "all
necessary parties have been timely served" (¶23). The rule also
"encourages prompt filing of papers with the court" because this "is the
surest way to inform the court of the status of pending litigation"
(¶25). In determining the reasonableness of the time between
serving and filing an answer, a court should consider the length of
elapsed time and any pertinent factual circumstances that explain the
delay, such as the need for verification of service. "If no such factors
are present, the court should consider whether the answer was filed
within 45 days after service of the complaint - the statutory time limit
for answering the complaint." Last, a court should "consider whether the
time period between service and filing is too insignificant to warrant
any sanction" (¶26). Prejudice should not be weighed at this stage
of the analysis.
Second, when considering a remedy for late filing, "a circuit court
may strike an answer if the answer is not filed within a reasonable time
after service - but only in those circumstances in which the circuit
court, exercising sound discretion, may enter default judgment"
Third, the court addressed the criteria to be applied in striking an
answer and granting a default judgment (the court assumed without
deciding that the defendant's timely service, absent filing, failed to
"join issue" as required by Wis. Stat. section 806.02). Following
"sound" federal practice, the court held that "a plaintiff should not
move to strike an answer that is not filed `within a reasonable time
after service' unless the plaintiff is prepared to show prejudice to
itself or to the court. Offering less-compelling grounds to strike an
answer in this situation is an attempt to secure a judicial sanction
that is disproportionate to the defendant's error" (¶53). (In these
"less compelling" situations, an aggrieved plaintiff may ask for other
sanctions, for example, attorney fees.) When confronted with a proper
motion to strike, a defendant should "file the answer and then move to
enlarge time under Wis. Stat. § 802.01(2)," which then permits the
trial court to weigh the facts, equities, and policies at issue
Fourth, in appropriate cases, the trial court may grant a default
judgment if "a defendant's failure to file an answer with the court
within a reasonable time after service is unreasonable, unexplained, and
prejudicial to the plaintiff or the court" (¶60).
Applying these principles to the record in this case, the supreme
court held that the circuit court had failed to set forth the basis for
its exercise of discretion; thus, the default judgment could not stand.
The matter was remanded for further proceedings.
Justice Wilcox, joined by Justice Crooks, dissented on the ground
that the trial judge had appropriately exercised his discretion.
State Constitutional Amendments - Effective Date
State v. Gonzales,
2002 WI 59 (filed 13 June 2002)
Gonzales was convicted of carrying a concealed weapon, contrary to
Wis. Stat. section 941.23. His sole claim on appeal was that he had a
constitutional right to go armed, pursuant to Article I, Section 25 of
the Wisconsin Constitution. The supreme court, in an opinion written by
Chief Justice Abrahamson, unanimously concluded that Article I, Section
25 was not in effect on the day that the defendant committed the crime;
thus, he could not assert his purported constitutional right to go
armed. The crime occurred on Nov. 6, 1998. Although 74 percent of the
voters ratified this constitutional amendment on Nov. 3, 1998, the State
Elections Board did not certify the result until Nov. 30, 1998.
In a case of first impression, the court considered the effective
date of constitutional amendments. It held that "unless a constitutional
amendment provides otherwise, it takes effect upon the certification of
the statewide canvass of the votes as provided in Wis. Stat.
§ 7.70(3)(h)" (¶25). First, section 7.70(3)(h) was a valid
exercise of legislative power pursuant to Article XII, Section 1 of the
Wisconsin Constitution. Second, "the state constitution gives the
legislature broad powers for submitting the constitutional amendment to
the people" (¶27). Third, "as a practical matter a canvass of the
vote upon an amendment is necessary to ascertain the result of the
Attempted Child Enticement - Internet Communications - Police
State v. Robins,
2002 WI 65 (filed 21 June 2002)
The defendant allegedly engaged in sexually explicit online "chats"
and emails with a person he thought was a 13-year-old boy for the
express purpose of illegally soliciting the boy for sex. He arranged a
meeting time and place to effectuate that purpose and then traveled to
the agreed upon meeting place, where he was arrested by police. The
"13-year-old boy" was really an agent of the Wisconsin Department of
The defendant was charged with attempted child enticement contrary to
Wis. Stat. section 948.07. In this interlocutory appeal, the primary
issue was whether the child enticement statute is violated when there is
no actual child victim but, instead, an adult government agent posing
online as a child. In a unanimous decision authored by Justice Sykes,
the supreme court concluded that an attempted child enticement under
section 948.07 may be charged when the intervening extraneous factor
that makes the offense an attempted rather than a completed crime is the
fact that, unbeknownst to the defendant, the "victim" is not a child at
all, but an adult posing as a child.
The defendant also raised a First Amendment challenge to the statute
as applied to child enticements initiated over the Internet. The court
concluded that the First Amendment is not implicated by the application
of the child enticement statute to enticements initiated over the
Internet, because the statute regulates conduct, not speech. "The
statute protects against the social evil and grave threat presented by
those who lure or attempt to lure children into secluded places, away
from the protection of the general public, for illicit sexual or other
improper purposes. That an act of child enticement is initiated or
carried out in part by means of language does not make the child
enticement statute susceptible of First Amendment scrutiny" (¶ 43).
"Simply put, the First Amendment does not protect child enticements,
whether initiated over the Internet or otherwise" (¶ 44).
Expungement of Record of Conviction - Information in District
Attorney and Police Files - Consideration of "Facts" Underlying Expunged
Conviction at Sentencing in Unrelated Case
State v. Leitner,
2002 WI 77 (filed 26 June 2002)
Wis. Stat. section 973.015 authorizes the expunction of the record of
a misdemeanor conviction if a person is under age 21 when the offense is
committed and if the circuit court determines that the person will
benefit and society will not be harmed by this disposition. The statute
is silent, however, as to whether the records to be expunged are records
of courts, district attorneys, or law enforcement agencies.
In this case, the supreme court unanimously concluded that the
purpose of the statute is accomplished by interpreting it to refer only
to court records. Writing for the court, Chief Justice Abrahamson
explained that "expunction of a court record of a conviction enables an
offender to have a clean start as far as the prior conviction is
concerned" (¶ 39). Expunging the court record provides substantial
advantages to the offender. For example, an expunged conviction record
cannot be considered at a subsequent sentencing, cannot be used for
impeachment at trial under section 906.09(1), and cannot form the basis
for a habitual criminal enhancement in subsequent criminal
However, the court was not persuaded that the legislature intended
section 973.015 to authorize expunction of anything more than court
records. Specifically, it does not require district attorneys and law
enforcement agencies to expunge their records documenting the facts
underlying an expunged conviction record. District attorneys and law
enforcement agencies have significant ongoing interests in maintaining
case information, even when a court record of a conviction has been
expunged. "Case information may assist in identifying suspects,
determining whether a suspect might present a threat to officer safety,
investigating and solving similar crimes, anticipating and disrupting
future criminal actions, informing decisions about arrest or pressing
charges, making decisions about bail and pre-trial release, making
decisions about repeater charges, and making recommendations about
sentencing" (¶ 40).
Finally, the court held that, when sentencing an offender, a circuit
judge may consider the facts underlying a conviction for which the
record has been expunged. "It is clear that the legislature did not
intend section 973.015 to deprive sentencing courts of relevant
information regarding an offender when that information is in government
files relating to a record of conviction expunged under section 973.015"
John Doe Proceedings - Questioning of Witness by a Police
Officer - Suppression Not an Appropriate Remedy
State v. Noble, 2002
WI 64 (filed 21 June 2002)
The defendant was subpoenaed to testify at a John Doe proceeding. The
presiding judge permitted a police officer who was not licensed to
practice law to question the defendant. That testimony later formed the
basis for a perjury prosecution against the defendant.
In the perjury case, the defendant moved to suppress the transcript
of her testimony at the John Doe proceeding and to dismiss the complaint
against her with prejudice. She claimed that the state conducted the
proceeding in an illegal manner because she was questioned by someone
who was not licensed to practice law. The circuit court denied the
motion and the defendant was convicted.
The court of appeals reversed. It concluded that the police officer
who questioned the defendant at the John Doe proceeding had engaged in
the unlawful practice of law contrary to Wis. Stat. section 757.30 and
that the judge should not have permitted such conduct. The appellate
court further concluded that the proper sanction for this illegality is
exclusion of the witness's John Doe testimony in subsequent criminal
proceedings against her.
In a majority decision authored by Justice Bablitch, the supreme
court reversed the court of appeals. It held that the suppression of the
defendant's John Doe testimony from use at her perjury trial was not
required in this case. "It is not required because [the officer's]
examination of [the defendant] during the John Doe proceeding did not
amount to either a constitutional violation or a statutory violation for
which suppression is provided as a remedy" (¶13).
Justice Prosser filed a concurring opinion that was joined by Justice
Chief Justice Abrahamson filed a dissenting opinion.
Shiffra Procedures - Sequestration
State v. Green, 2002
WI 68 (filed 25 June 2002)
A jury convicted Green of sexually assaulting a child under the age
of 13. On appeal Green raised two claims: 1) the circuit court erred by
failing to conduct an in camera review of the victim's counseling
records; and 2) the prosecutor violated a sequestration order by
speaking with a witness in a hallway. The court of appeals affirmed the
The supreme court, in an opinion written by Justice Bablitch,
affirmed the court of appeals. Of primary significance, the court set
forth the standard that governs entitlement of defendants to an in
camera review of a victim's privileged records: "the preliminary showing
for an in camera review requires a defendant to set forth, in good
faith, a specific factual basis demonstrating a reasonable likelihood
that the records contain relevant information necessary to a
determination of guilt or innocence and is not merely cumulative to
other evidence available to the defendant." Such information "will be
`necessary to a determination of guilt or innocence' if it `tends to
create a reasonable doubt that might not otherwise exist.' This test
essentially requires the court to look at the existing evidence in light
of the request and determine, as the Shiffra court did, whether
the records will likely contain evidence that is independently probative
to the defense" (¶34). On this record the trial court did not abuse
its discretion in refusing to conduct an in camera review.
Green also argued that the prosecutor violated the sequestration
order when she spoke with a witness in the hallway during a break in
testimony. The witness had testified several different times, and in
several different ways, regarding her recollection of an allegedly
incriminating remark by Green. The court held, however, that the
conversation did not violate the sequestration order - there was no
allegation that the witness heard other witnesses testify or had spoken
to such other witnesses - and, in any event, the incident produced no
discernable prejudice. A concurring opinion by Chief Justice Abrahamson,
joined by Justice Crooks, urged trial judges to word orders that exclude
or sequester witnesses "with particularity to avoid misunderstandings"
No Contest Pleas - Deportation Warnings
State v. Douangmala,
2002 WI 62 (filed 19 June 2002)
The defendant, a Laotian native who was not a U.S. citizen, was
charged with various criminal offenses, including felonies. He later
pleaded no contest to burglary, robbery, and false imprisonment and was
sentenced to consecutive prison terms. After conviction, he was ordered
to appear at a deportation hearing and subsequently was ordered deported
based on his no contest plea and convictions. The defendant filed a
motion to withdraw the no contest plea, which was denied. Several
appeals were taken. Ultimately, the court of appeals held that there was
sufficient evidence to support the finding that the defendant knew of
the deportation consequences when he pleaded no contest.
The supreme court, in an opinion written by Chief Justice Abrahamson,
reversed and remanded. The following issue was determinative: "If a
circuit court fails to give the deportation warning required by Wis.
Stat. section 971.08(1)(c) (1999-2000), when accepting a guilty or no
contest plea, is a defendant entitled to withdraw the plea later upon a
showing that the plea is likely to result in deportation, regardless of
whether the defendant was aware of the deportation consequences of the
plea at the time the defendant entered the plea?" (¶ 17). The
circuit court failed to comply with section 971.08(1)(c) because the
judge failed to address the defendant personally to advise him of the
deportation consequences of the plea (¶ 20). Moreover, the
defendant complied with all three conditions set forth in Wis. Stat.
section 971.08(2), which governs the withdrawal of pleas upon a court's
failure to advise properly of a plea's deportation consequences (¶
25). Finally, the supreme court held that the harmless error rule, Wis.
Stat. section 971.26, did not apply to section 971.08(1)(c) and (2).
Accordingly, the supreme court overruled a line of court of appeals
decisions that had reached a contrary conclusion (the citations are set
forth at ¶ 42).
Discharge of Employees-at-will - Public Policy Exception -
Termination of Employee in Retaliation for Actions of Employee's
Bammert v. Don's Super Valu
Inc., 2002 WI 85 (filed
3 July 2002)
Karen Bammert worked as an employee-at-will at Don's Super Valu for
approximately 26 years. Her husband is a police officer. Don's is owned
by Don Williams, whose wife, Nona, was arrested for drunk driving.
Bammert's husband participated in the drunk driving field investigation
by administering to Nona a portable breath test, which she failed. Karen
Bammert was thereafter fired by Don's, allegedly in retaliation for her
husband's participation in the arrest as described above.
The issue before the supreme court was whether the public policy
exception to the employment-at-will doctrine can be invoked when an
at-will employee is fired in retaliation for the actions of his or her
nonemployee spouse. In a decision authored by Justice Sykes, a majority
of the supreme court answered in the negative.
In general, at-will employees are terminable at will, for any reason,
without cause and with no judicial remedy. Whether Karen Bammert has an
actionable claim for wrongful discharge turns on the question of whether
the public policy exception to the employment-at-will doctrine can be
extended to a retaliatory discharge based upon the conduct of a
The public policy exception to the employment-at-will doctrine is a
narrow exception that allows at-will employees to sue for wrongful
discharge if they are fired for fulfilling, or refusing to violate, a
fundamental, well-defined public policy or an affirmative legal
obligation established by existing law. "It has never been extended to
terminations in retaliation for conduct outside the employment
relationship; neither has it been applied to terminations in retaliation
for the conduct of someone other than the terminated employee. To allow
it here would therefore expand the exception beyond its present
boundaries in two significant and unprecedented ways, with no logical
limiting principles" (¶ 3).
Therefore, the majority declined to recognize a cause of action for
wrongful discharge under the public policy exception to the
employment-at-will doctrine for terminations in retaliation for the
conduct of a nonemployee spouse.
Justice Bablitch filed a dissenting opinion that was joined by Chief
Justice Abrahamson and Justice Bradley.
Subrogation - "Made-whole" Doctrine
Ruckel v. Gassner,
2002 WI 67 (filed 21 June 2002)
This case concerns the applicability of the "made-whole" doctrine
when a subrogated insurer relies on contract language that explicitly
waives the insured's right to be "made whole" before the subrogated
insurer receives reimbursement. The defendant shot the plaintiff in the
knee while recklessly mishandling a firearm. The trial court entered a
default judgment against the defendant and ultimately determined damages
to be about $460,000. It also ordered that Humana, which had paid about
$87,000 in medical expenses, was not entitled to payment until the
plaintiff had been made whole. The court's ruling negated unambiguous
policy language that otherwise entitled Humana to be reimbursed for
paid-out medical expenses before its insured, the plaintiff, received a
The supreme court, in an opinion written by Justice Prosser,
unanimously affirmed the circuit court. The case presented the
opportunity to "clarify any perceived inconsistency" between Garrity
v. Rural Mutual Insurance Co., 77 Wis. 2d 537 (1977), and Rimes
v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263
In carefully reviewing the basic principles of subrogation law, the
court found it "unfortunate" that Garrity had suggested that
contrary language in a policy might have signaled a different outcome.
Nonetheless, Rimes later clarified that the made-whole
principle applies to contractual as well as equitable subrogation. In
sum, the clear import of Garrity and Rimes is that
"[n]otwithstanding a specific unambiguous subrogation clause in the
Humana-administered group benefit plan that gave the plan superior
rights of subrogation over [the insured's] right to be made whole, the
plan may not recover any of the [$87,000] in medical expenses it paid
out until [the insured] has been made whole" (¶40). The case did
not permit the court to resolve the "sticky issues" raised when the
insured contributes to his or her own loss, or when the insured settles
for an amount less than the total damages without involving the
Open Records Law
Information about Applicants to State Universities - FERPA -
Redaction of Certain Information
Osborn v. Board of Regents of the
University of Wisconsin System, 2002 WI 83 (filed 2 July
This case concerns whether the University of Wisconsin must provide
documents in response to open records requests submitted by the
plaintiffs. Those requests sought information from records of applicants
to certain U.W. campuses and two of its professional schools.
Essentially, the plaintiffs sought information about test scores, class
rank, grade point average, race, gender, ethnicity, and socioeconomic
background of applicants for admission. They did not request names,
addresses, or other personal identifiers such as Social Security
The supreme court first confronted whether the Family Educational
Rights and Privacy Act of 1974 (FERPA) prohibits disclosure of the
requested information in this case. In a unanimous decision authored by
Justice Crooks, the supreme court concluded that FERPA prohibits
nonconsensual disclosure of personally identifiable information
contained within education records. It does not prohibit disclosure of
all information contained in such records. Only if the open records
request seeks information that would make a student's identity
traceable, may a custodian of those records rely on FERPA to deny the
request on the basis that it seeks personally identifiable information.
Here, the court concluded that the plaintiffs were not requesting
personally identifiable information. The minimal information requested
by the plaintiffs is not sufficient by itself to trace the identity of
an applicant. The court further concluded that there is no overriding
public interest in keeping the requested records confidential.
The university also sought to deny the plaintiffs' open records
request by arguing that compliance would require it to essentially
create a new record, which is not required under the open records law.
Specifically, the university claimed that the requested information
regarding test scores, grade point averages, and so on, is maintained
only in the individual records of applicants. The court responded that
the open records statute does not require the custodian to create a new
record by extracting information from existing records and compiling the
information in a new format. However, the custodian does have a
statutory duty to delete or redact from the records information that is
not subject to disclosure: "We conclude that the statute requires the
custodian to provide the information subject to disclosure and delete or
redact the information that is not" (¶ 45).
Finally, the court noted that, under the open records law, the
university is not required to bear by itself the cost of producing
documents in response to the plaintiffs' request. The university is
entitled to charge a fee for the actual, necessary, and direct cost of
complying with the plaintiffs' open records request.
Chief Justice Abrahamson did not participate in this decision.
Homestead Protection - Premarital Agreements - Marital
Property - Waivers
Jones v. Estate of
Jones, 2002 WI 61 (filed 18 June 2002)
In a case of first impression, the supreme court, in an opinion
written by Justice Crooks, held that homestead protection can be waived
pursuant to a premarital agreement. In 1978 Robert and Mary Ann signed a
prenuptial agreement that stated, in part, "that each party shall hold
his or her solely owned property `free from all rights or claims therein
by the other'" (¶1). Robert owned the home where they resided. In
1998 Robert deeded the home to Mary Ann, who deeded the home to Robert's
sons the same day. After Robert died, Mary Ann sought to declare the
second deed (to her stepsons) invalid. The supreme court affirmed the
circuit court's order denying Mary Ann's motion seeking to declare the
second deed invalid (albeit on different grounds).
The supreme court first held that the home constituted homestead
property, as provided by Wis. Stat. section 706.01(7). It then turned to
the issue of first impression: "whether spouses can waive the homestead
protection in a premarital agreement" (¶11). Although the 1978
premarital agreement predated Wisconsin's Marital Property Act, thus
rendering the agreement enforceable irrespective of the Act, the supreme
court nonetheless discussed the Act "because this decision will
undoubtedly influence future decisions regarding a premarital agreement
governed by the Act" (¶13).
Relying on case law, which "favors" premarital agreements, and
statutory language, the court held that "spouses can validly waive the
homestead protection by affirmatively entering into a premarital
agreement" (¶17). This conclusion was, moreover, "consistent with
the purpose of the homestead protection" against "unilateral action by
one spouse to the detriment of the other." Such agreements contemplate
spouses who in fact "agree" and make "collaborative decisions regarding
their possession and conveyance of property" (¶18). Examining the
record, the supreme court found that the premarital agreement in
question satisfied the waiver standards.
Agricultural Land - Conversion from Market-value to Use-value
Mallo v. Wisconsin Department
of Revenue, 2002 WI 70 (filed 25 June 2002)
Prior to Jan. 1, 1996, agricultural land was assessed the same as all
real property: at its fair market value based on its highest and best
use. In 1995 the legislature enacted Wis. Stat. section 70.32(2r) to
change the manner of value assessment of agricultural land for taxation
purposes from market-value assessment to use-value assessment. Under
market-value assessment, land is valued at the full value that
ordinarily could be obtained therefor at private sale. Under use-value
assessment, agricultural land is valued according to the income that
could be generated from its rental for agricultural use.
Section 70.32(2r) provides for the transition from market-value
assessment to occur in three stages. Following a "freeze" stage in 1996
and 1997 during which assessments were frozen at the 1995 assessed
value, a phase-in or mixed-use assessment stage was to follow and
conclude by no later than Dec. 31, 2008, following which the transition
to use-value assessment would be completed.
The Department of Revenue (DOR) promulgated an emergency rule and
then a permanent administrative rule implementing full use-value
assessment as of January 2000. The plaintiffs filed this lawsuit
challenging the validity of these administrative rules, contending that
the DOR exceeded its authority by truncating what they argued was a
mandatory 10-year phase-in or mixed-use assessment period. The circuit
court granted summary judgment in favor of the DOR and the court of
appeals certified the plaintiffs' appeal to the supreme court.
In a decision authored by Justice Crooks, the supreme court affirmed
the decision of the circuit court. After examining the plain language of
the statute, the court concluded that section 70.32 is unambiguous and
gives the DOR authority to promulgate an administrative rule (Wis.
Admin. Code section TAX 18.08), which provides for the valuation of
agricultural land for taxation purposes based on its use value,
effective Jan. 1, 2000. The court further concluded that the
administrative rule is consistent with the plain language of section
Justices Wilcox and Prosser did not participate in this decision.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Agricultural Land - Conversion from Market-value to Use-value
Norquist v. Zeuske,
2002 WI 69 (filed 29 June 2002)
This case concerns the constitutionality of Wis. Stat. section
70.32(2r), which changes the manner of value assessment of agricultural
land for property taxation purposes from market-value assessment to
use-value assessment. At oral argument before the supreme court, counsel
for the plaintiffs noted that the plaintiffs sought only prospective
relief in this lawsuit and conceded that this case would be moot if the
supreme court upholds DOR regulations implementing section 70.32(2r) by
providing for use-value assessment of agricultural land as of Jan. 1,
The validity of the DOR regulations was the issue in Mallo v.
Wisconsin Department of Revenue, 2002 WI 70, which is summarized
above. In Mallo the supreme court upheld the validity of the
DOR regulations. Accordingly, in this case the supreme court followed
the concession of plaintiffs' counsel and dismissed the lawsuit as
Justice Prosser did not participate in this decision.
Sexually Violent Persons
Revocation of Supervised Release - Alternatives to
State v. Keding,
2002 WI 86 (filed 3 July 2002)
This case was before the Wisconsin Supreme Court on certification
from the court of appeals. The certified question was whether the
circuit court is required to consider alternatives to revocation when a
proceeding is brought to revoke the supervised release of a person
committed under the sexual predator statute. See Wis. Stat. ch.
The supreme court was evenly split on the answer to the certified
question. Chief Justice Abrahamson and Justices Bablitch and Bradley
would answer in the affirmative; Justices Wilcox, Crooks, and Sykes
would respond in the negative. Justice Prosser did not participate.
Despite the tie vote on the legal issue presented, the supreme court
nevertheless affirmed the circuit court's order revoking the defendant's
supervised release, because four members of the court agreed that the
circuit court in this case did in fact inquire about whether there were
any alternatives to revocation, and was advised that there were none
before it revoked the defendant's supervised release.
Justice Bradley filed a dissenting opinion that was joined by Chief
Helmet Defense - ATVs
Stehlik v. Rhoads,
2002 WI 73 (filed 26 June 2002)
The plaintiff, an adult, sustained a severe head injury while riding
an ATV provided by his social hosts at a party. Although he drove the
ATV with their permission, he also had been drinking alcohol provided at
the party and was riding without a helmet. A jury concluded that the
plaintiff was 30 percent causally negligent and the social hosts were 70
percent causally negligent for the accident itself. The judge also
instructed the jury to determine any negligence that may have occurred
with respect to the plaintiff's failure to wear a helmet; the jury found
the plaintiff 40 percent negligent and the social hosts 60 percent
negligent on this issue. Finally, the jury concluded that 90 percent of
the plaintiff's injuries were attributable to his failure to wear a
In postverdict proceedings, the judge struck the special verdict
answer relating to the separate "helmet negligence." Instead, the court
reduced the jury's damage findings by 30 percent, which represented the
plaintiff's contributory negligence, and then by a further 90 percent to
reflect the percentage of injury assigned to his failure to wear the
helmet. The court of appeals certified this case to the supreme court,
where the case posed two central issues: 1) Is the "helmet defense"
subject to the same principles as the "seat belt defense," and, if so,
should those principles be modified for the helmet defense; and 2) Can
an ATV owner be liable for failing to require adult users of an ATV to
wear a safety helmet?
The supreme court, in an opinion written by Justice Sykes, reversed
and remanded. The same common law duty of ordinary care that justifies
the seat belt defense also applies to the "helmet defense," although
neither omission is negligence per se (¶¶28-29). Nonetheless,
the court modified the "second collision" analysis set forth in
Foley v. City of West Allis, 113 Wis. 2d 475 (1983), because
its unadulterated application to the helmet-defense scenario was
"inconsistent with a liability system based upon the idea of comparative
For the reader's convenience, the procedures are quoted in full:
"[T]he jury in a helmet defense case such as this should initially be
asked to determine whether each of the parties was negligent with
respect to the accident, and if so, whether each party's `accident
negligence' was a cause of injury or damage to the plaintiff. The jury
should then apportion the accident negligence among the parties found to
be negligent with respect to the accident, assuming total accident
negligence to be 100 percent. The plaintiff's recovery will be reduced
or barred under Wis. Stat. § 895.045 depending upon the result of
this comparison. The jury should then be asked if a helmet was available
for the plaintiff's use, and, if so, whether the plaintiff was negligent
in failing to wear a helmet. If the jury answers these questions in the
affirmative, it should then decide whether the plaintiff's `helmet
negligence' was a cause of his or her injuries or damages. If the jury
finds the plaintiff causally negligent with respect to helmet nonuse, it
should then be asked to compare the plaintiff's helmet negligence as
against the total combined negligence of the defendants, as follows:
`Assuming the total of the plaintiff's helmet negligence and the
combined negligence of the defendant(s) to be 100%, what percentage do
you attribute to: 1) the plaintiff's helmet negligence; and 2) the
combined negligence of the defendant(s)?' This last comparison is not
subject to the Wis. Stat. § 895.045 bar to recovery if the
plaintiff's helmet negligence percentage exceeds the defendant(s)'
combined negligence percentage. Under Foley, seat belt/helmet
negligence operates only to reduce damages, not bar recovery" (note
The supreme court reversed the trial court because it had followed
the unalloyed Foley approach to the helmet defense. Finally,
for reasons of public policy the court held that "an ATV owner cannot be
liable for failing to require an adult user of the ATV to wear an
available safety helmet" (¶58).
Chief Justice Abrahamson concurred but wrote separately. Although the
"attempt to correct the flaw in Foley is a step in the right
direction," she questioned whether the majority's solution would "work
as a practical matter."
Justice Crooks dissented on the ground that the seat belt and helmet
defenses are analogous and that the Foley methodology should
apply to both.
Wisconsin Open Housing Act
Discrimination Based on "Perception" of a
Kitten v. Wisconsin
Department of Workforce Development, 2002 WI 54 (filed 24 May
Spencer Cenname tried to rent an apartment from Kitten. When Kitten
found out that Cenname previously had been hospitalized for the eating
disorder bulimia nervosa, Kitten became concerned that Cenname would
either attempt suicide or be rehospitalized and therefore be unable to
pay the rent. As a result, Kitten sought an advance payment of six
months' rent from Cenname, as opposed to the normal one month's rent and
a security deposit.
Cenname filed a complaint with the Equal Rights Division of the
Department of Workforce Development claiming that Kitten had
discriminated against him on the basis of disability. The hearing
examiner determined that there was not enough evidence to conclude that
Cenname had an actual disability under the Wisconsin Open Housing Act
(WOHA), but that there was sufficient evidence to show that Kitten
regarded Cenname's eating disorder as one that substantially limited the
latter's major life functions. The examiner concluded that this
qualified as a disability under the WOHA.
The circuit court and the court of appeals affirmed the conclusions
of the hearing examiner. On review, the supreme court unanimously
affirmed in a decision authored by Justice Wilcox. It concluded that the
hearing examiner correctly decided that Kitten's perceptions of Cenname
qualified as a disability under the WOHA and that Kitten discriminated
against Cenname on the basis of that perceived disability.
"To establish a disability within the meaning of the [WOHA], the
complainant must show (1) that he or she has an actual impairment, a
record of impairment, or is regarded as having an impairment; and (2)
the impairment, whether real or perceived, is one that substantially
limits one or more major life activities, or is regarded by the
respondent to substantially limit one or more major life activities. If
the complainant is able to prove both of these elements, the complainant
will have demonstrated a disability under the WOHA" (¶ 46).
In this case the court thought that there was little question that
Kitten perceived that Cenname had an impairment and that Kitten's
perceptions did rise to the level at which, if taken as true, Cenname's
major life activities would have been limited. Kitten thought that
Cenname's eating disorder would impair the latter's ability to function
to the point where he would not be able to live on his own. Kitten
further perceived that Cenname would become severely depressed to the
point of being suicidal, a situation that undoubtedly would limit
Cenname's ability to perform day-to-day activities.
Finally, the court thought that there was more than sufficient
evidence in the record for the hearing examiner to have found that
Kitten discriminated against Cenname based on the perceived disability
in this case. Kitten sought six months' advance rent from Cenname as
opposed to the normal one month's rent and a security deposit.
Judicial Review - Certiorari
Vidal v. LIRC, 2002
WI 72 (filed 25 June 2002)
The court of appeals certified the following issue to the Wisconsin
Supreme Court: "whether common law certiorari may be utilized in this
case to obtain judicial review of two LIRC orders - which collectively
set aside and remanded a compensation order - when it is alleged that
LIRC failed to properly issue these orders within the time limitations
set by statute" (¶14).
The supreme court, in an opinion written by Justice Bablitch, held
that judicial review is available only from an order or award granting
or denying compensation, as provided by Wis. Stat. section 102.23(1)(a)
(1999-2000). Thus, judicial review by common law certiorari was not
available in this case because the employer was not foreclosed from
obtaining future judicial review of its claim that LIRC failed to act
within the statutory time limits, a claim that may be reviewed "in a
circuit court action seeking judicial review of any subsequent order or
award granting or denying compensation in this case" (¶2). In
addition to the statute, the court relied on Schneider Fuel &
Supply Co. v. Industrial Commission, 224 Wis. 298 (1937), and
overruled any language to the contrary in Berg v. Industrial
Commission, 236 Wis. 172 (1940) (¶20). These procedures, said
the court, permit the review of issues in a timely manner and
"preserve[s] judicial economy by allowing these issues to be determined
only after an order or award granting or denying compensation is issued"