Vol. 76, No. 2, February
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
Deceased Party - Service of Suggestion of Death
Schoenecker, 2002 WI 132 (filed 27 Dec. 2002)
Ruth Schwister, the plaintiff, died after she brought this action
against her son, Daniel Schoenecker, for the return of funds that he was
to manage on her behalf. The circuit court granted the motion of the
personal representative of Ruth Schwister's estate to be substituted as
the plaintiff in this action. The question before the supreme court was
whether the motion for substitution was timely.
Wis. Stat. section 803.10(1)(a) directs dismissal of a motion for
substitution of a deceased party that is made more than 90 days after
the death is suggested on the record by service of a statement of the
facts of the death. The specific question here was whether the
defendant's suggestion of death, which was served only on the
plaintiff's attorney prior to the appointment of a personal
representative, satisfied the statute and thereby activated the 90-day
period in which a motion for substitution was to be filed.
The language of section 803.10(1)(a) provides little guidance for
determining who must be served with a suggestion of death in order to
trigger the time period for filing a substitution motion. It appears to
require that the suggestion of death be served on the parties to the
action and on persons who are not parties, but it does not state which
nonparties are to be served.
In a unanimous decision authored by Chief Justice Abrahamson, the
court looked to cases construing Federal Rule of Civil Procedure
25(a)(1), upon which the Wisconsin statute is modeled. The message of
those cases is that courts have wide discretion to look to the facts of
each case to decide which nonparties need to be served with the
of death in order to trigger the 90-day period. "And when making this
determination regarding a deceased plaintiff, a court considers such
factors as: (1) whether the suggestion of death has been served on
nonparties who may have a right or interest in deciding whether a motion
for substitution should be filed; (2) how substantial the burden
is on the person serving the suggestion of death to identify
nonparties who have the right or interest to move for substitution and
to serve them with the suggestion of death; and (3) whether the service
of the suggestion of death protects the circuit court's control over the
docket and the court's and parties' need for the fair and expeditious
resolution of the case" (¶ 28).
Applying these factors, the court concluded that the suggestion of
death served only on the deceased plaintiff's attorney, when no personal
representative had been appointed, was not sufficient to trigger the
90-day period. Reading section 803.10
to permit service in this case on the deceased plaintiff's attorney
alone would fail to satisfy the rule's objectives: to start the 90-day
period within which to make a motion for substitution only after notice
is given to interested nonparties without unduly burdening the serving
party, while allowing the court to move the litigation toward fair and
The statute does not require service of the suggestion of death on
all potential beneficiaries, heirs, successors, or representatives in
every case. "We merely hold that the court rule requires the person
serving the suggestion of death and the court to examine the facts of
the case in order to determine what interested nonparties should be
served in each particular case and how burdensome the task will be in
order to protect the interests of all persons and move the litigation
toward a fair and expeditious resolution" (¶ 44).
To trigger the 90-day period in the present case, the defendant was
obliged to serve his brothers, who are nonparties. Serving the brothers
was necessary to reasonably protect their interests and the decedent's
interests when no personal representative had yet been appointed.
Requiring the defendant to locate and serve his brothers, who were
readily known to him to be potential successors or representatives of
the decedent, would not unduly burden him as the surviving party or
unreasonably delay the litigation.
Probation - Sex Offender Treatment as a Condition of Probation -
Revocation of Probation for Failure to Admit Conduct - Fifth Amendment
State ex rel. Tate v.
Schwarz, 2002 WI 127 (filed 21 Nov. 2002)
The defendant was convicted of repeated sexual assault of a child
following a jury trial in which he testified and denied committing the
offense. The court imposed and stayed a sentence, placed the defendant
on probation, and ordered him to undergo sex offender treatment. As part
of the treatment program, he was required to admit to committing the
The defendant refused to do so, asserting his Fifth Amendment right
against self-incrimination. As a result, he was terminated from the
treatment program. He then moved to modify the conditions of probation
and asked that his treatment be delayed until after his appeal. This
motion was denied. In the meantime, the defendant's probation was
revoked because of his failure to cooperate with treatment.
On certiorari review of the probation revocation, the circuit court
denied relief. The defendant appealed. The court of appeals found a
Fifth Amendment violation but concluded that it had been waived because
the defendant had not appealed the denial of his motion to modify the
In a unanimous decision authored by Justice Sykes, the supreme court
reversed the court of appeals. It concluded that the revocation of the
defendant's probation was premised on a legitimate assertion of the
defendant's Fifth Amendment privilege against self-incrimination and was
therefore unconstitutional. The Department of Corrections itself
conceded that compelling a probationer to admit to the crime of
conviction before the time for a direct appeal has expired or an appeal
has been denied is self-incriminatory within the meaning of the Fifth
Consistent with that concession is case law in which the Wisconsin
Supreme Court has held that, when the claimed self-incrimination
pertains to the crime for which the defendant has already been
convicted, the Fifth Amendment privilege against self-incrimination
extends beyond sentencing as long as a defendant has a real and
appreciable fear of further incrimination. Such would be the case when
an appeal is pending, before an appeal as of right or plea withdrawal
has expired, or when the defendant intends to or is in the process of
moving to modify his or her sentence and can show an appreciable chance
of success. See State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730
The supreme court also concluded that the defendant's failure to
appeal the denial of his motion to delay sex offender treatment did not
constitute a waiver of his right to challenge probation revocation on
Fifth Amendment grounds.
Lastly, the court held that a person in the defendant's situation
"cannot be subjected to probation revocation for refusing to admit to
the crime of conviction, unless he is first offered the protection of
use and derivative use immunity for what are otherwise compulsory
self-incriminatory statements" (¶ 4).
Trade Restraints - "No-hire" Provisions
Heyde Cos. Inc. v. Dove
Healthcare LLC, 2002 WI 131 (filed 27 Dec. 2002)
Dove Healthcare (Dove), which operates nursing homes, made a contract
with Greenbriar under which Greenbriar agreed to provide physical
therapy services. Greenbriar's physical therapists worked at Dove's
facilities but remained Greenbriar's at-will employees. The contract
prohibited Dove from hiring Greenbriar's physical therapists during the
term of the agreement and for one year thereafter. In October 1999,
Dove terminated the agreement effective Dec. 31, 1999. A short time
later Dove hired several of Greenbriar's therapists, who claimed that
they did not know about the no-hire provision in the agreement.
Greenbriar sued Dove for breaching the no-hire clause and sought
contractual damages. The circuit court ruled in Greenbriar's favor and
awarded damages of $60,000. The court of appeals reversed, holding that
the clause was an unreasonable restraint of trade.
The supreme court, in a decision authored by Justice Bablitch,
affirmed. The issue was "whether a no-hire provision contained in a
contract between employers, without the knowledge and consent of the
affected employees, is unenforceable as an unreasonable restraint of
trade" (¶9). First, the court held that the no-hire provision
violated Wis. Stat. section 103.465. It rejected Greenbriar's contention
that the statute
only applies to restrictive covenants between employers and employees
and not to covenants between employers (as here). The statute's
"explicit purpose" is to "invalidate covenants that impose unreasonable
restraints on employees" (¶13). "The effect of the no-hire
provision is to restrict the employment of Greenbriar's employees; it is
inconsequential whether the restriction is termed a 'no-hire' provision
between Dove and Greenbriar or a 'covenant not to compete' between
Greenbriar and its employees. Greenbriar is not allowed to accomplish by
indirection that which it cannot accomplish directly" (¶14).
The court then applied the five-factor test that governs restrictive
covenants under section 103.465, finding that this clause failed because
it was clearly "harsh and oppressive to Greenbriar employees and ...
contrary to public policy" (¶20). In particular, employees must be
given notice of and then consent to such restrictions. Greenbriar's
employees did not have notice or give consent (¶21). Second,
notwithstanding whether section 103.465 was facially violated, "the
provision nonetheless clearly violates the public policy as expressed
through the common law" for the same reasons and thus constitutes "an
unreasonable restraint of trade in contravention of Wisconsin's public
Chief Justice Abrahamson concurred. Although she agreed with the
dissent that the no-hire provision is not governed by section 103.465,
she concluded that the provision contravened the common law,
particularly in light of the "secret deal" that bound employees without
their knowledge or consent.
Justice Sykes, joined by Justice Bradley, dissented, arguing that
section 103.465 did not apply to these types of contracts and the
majority's public policy analysis was predicated on that same
Hearsay - Confrontation
State v. Williams,
2002 WI 118 (filed 24 Oct. 2002)
In this per curiam opinion, the supreme court denied the state's
motion to reconsider its earlier decision but did modify paragraph 33 of
the opinion, State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644
N.W.2d 919. The modified paragraph deals with the interrelationship of
the hearsay rule and the confrontation right. The lab report in question
constituted inadmissible hearsay, but the court did not have to reach
the confrontation issue because any error was harmless beyond a
Exclusions - "Relatives"
Frost v. Whitbeck,
2002 WI 129 (filed 17 Dec. 2002)
Tina Frost and her 6-year-old daughter stayed with Doreen Whitbeck in
1996. Whitbeck's dog allegedly bit the child on two separate occasions.
In 1999 Frost sued Whitbeck and her homeowner's insurance company. The
insurer moved for summary judgment based on an express exclusion of
coverage for bodily injuries of a resident relative. Frost and Whitbeck
were "third cousins separated by eight degrees of kinship" (¶8).
The circuit court granted summary judgment for the insurer but the court
of appeals reversed.
The supreme court, in an opinion authored by Chief Justice
Abrahamson, affirmed the court of appeals. The sole issue was whether
Frost's and Whitbeck's kinship fell within the policy's
resident-relative exclusion (¶13). The court held that the term
"relative" was ambiguous. It clearly meant to encompass certain persons
related by blood, but this hardly addressed the limits of the term. The
court said that no reasonable policyholder would construe "relative" to
include all persons related by blood no matter how remote. In
particular, a reasonable person in Whitbeck's position would have
concluded that Frost, who was separated from Whitbeck by eight degrees
of kinship, did not fall within the exclusion (¶39).
The court declined to delineate the outermost reaches of
consanguinity that define a "relative" for purposes of an "intra-insured
exclusion." It determined only that persons "having a
great-great-grandfather as a common ancestor" did not fall within the
Justice Wilcox, joined by Justices Crooks and Sykes, dissented on the
ground that the term "relative" was unambiguous and applied because
Frost and Whitbeck "knew of and acknowledged their blood connection"
Children in Need of Protection or Services - Individuals with
Disabilities Education Act - Child Support Obligation of the Parents
Calumet County Dep't of Human
Servs. v. Randall H., 2002 WI 126 (filed 21 Nov. 2002)
Randall H. petitioned the circuit court to have his son Robert
adjudicated a child in need of protection or services (CHIPS). Robert
had been diagnosed with a variety of mental health problems, and his
family could not care for him at home. The circuit court entered a
dispositional order finding Robert to be in need of protection or
services and ordered him placed in a residential treatment facility. It
also ordered his father to contribute toward Robert's support.
Acting pursuant to Wis. Stat. section 115.81, the responsible local
education agency convened an individualized education program (IEP)
team, which recommended that Robert's educational program be implemented
at the residential treatment facility while Robert was residing there
pursuant to the CHIPS order. The father then moved the circuit court for
relief from the child support obligation, arguing that he was exempt
from that obligation because of his son's entitlement under the federal
Individuals with Disabilities Education Act (IDEA) to a "free
appropriate public education."
The circuit court denied the motion. The court of appeals certified
the case to the supreme court on the question of whether the IDEA
preempts state statutes requiring parents to contribute to the support
of their children who are placed outside the home by a CHIPS order.
The supreme court, in a unanimous decision authored by Justice Sykes,
did not see this case as presenting a preemption question, because the
federal and state statutory schemes at issue did not conflict with one
another, at least not under the circumstances of this case. The son was
placed in the residential treatment facility for mental health care
pursuant to the circuit court's CHIPS order. The IEP specifying that his
educational program be implemented at the facility while he lived there
did not constitute a residential placement necessary for educational
purposes under the IDEA. (A residential educational placement under the
IDEA is required to be at no cost to the child's parents.) Federal
courts deciding IDEA parental reimbursement cases have generally held
that the test for whether a child's placement in a residential program
is educational, and therefore reimbursable, focuses on whether the
child's residential placement is necessary for educational purposes. If
a residential placement is a response to medical, social, or emotional
problems and is necessary quite apart from the learning process, then it
is not an educational placement under the IDEA.
On the facts of this case the court concluded that the son's
placement was clearly in response to his psychiatric and emotional
problems and was necessary apart from his special education needs.
Accordingly, the IDEA did not provide grounds for relief from the child
support obligation established by the CHIPS order.
The court also concluded that while a circuit court may order child
support when a CHIPS child is placed in residential treatment, relevant
state statutes preclude the court from assessing any of the facility's
education-related costs against the child's parents.
Wrongful Death - Damage Caps
Schultz v. Natwick,
2002 WI 125 (filed 19 Nov. 2002)
Lindsey Schultz, 13, died of complications arising from an
appendectomy, allegedly as a result of medical malpractice. The issue
presented by this case was whether the retroactive increase, from
$150,000 to $500,000, in the damages cap for loss of society and
companionship enacted by 1997 Wis. Act 89 violated the defendants'
constitutional right to due process. The circuit court ruled that it did
not. The court of appeals reversed based on Neiman v. American
National Property & Casualty Co., 2000 WI 83, 236 Wis. 2d 411,
613 N.W.2d 160.
The supreme court, in an opinion authored by Chief Justice
Abrahamson, affirmed. The parties agreed that the wrongful death cause
of action accrued on Dec. 1, 1995, and that damages for loss of society
and companionship exceeded the present $500,000 cap. Following their
daughter's death, the Schultzes led the effort to increase the cap
amount that culminated in the 1997 act. The Neiman decision
"held that the retroactive application of the increase of the cap on
damages to a claim that accrued before the effective date of the [1997
act] was unconstitutional" (¶14). Although Neiman had not
expressly stated whether it should be limited to its facts or applied
broadly to all similar cases, the opinion's "language and logic ...
plainly extend to all cases affected by the retroactive increase of the
cap enacted by 1997 Wis. Act 89 and are not limited to the facts of the
Neiman case" (¶15). In addition, the Neiman
case's procedural posture also supported its status as binding
precedent; the court accepted the case on bypass with awareness that
many similar cases were pending throughout the system. Finally, the
court found no compelling reason to overturn Neiman.
Municipalities - Successive Liability - Releases
VanCleve v. City of
Marinette, 2003 WI 2 (filed 3 Jan. 2003)
The plaintiff injured her knee when she fell into a trench adjacent
to a newly-built cement curb. She sued both the city and the contractor,
Keller, alleging negligence in the construction and maintenance of the
curb and gutter. The city in turn cross-claimed against Keller.
Eventually the plaintiff entered into a Pierringer release with
Keller, under which Keller was released from all claims in exchange for
paying the plaintiff $7,500. The city then moved to dismiss the
remaining claim against it based on Wis. Stat. section 81.17. The trial
court denied the motion, and a jury awarded damages of about $50,000
against the city.
The court of appeals reversed. It held under Wis. Stat. section 81.17
that since no judgment was entered against the individual (Keller) who
was primarily liable, then the city, which has only secondary liability,
cannot be held to pay.
In a decision authored by Justice Crooks, the supreme court affirmed.
The court confronted the following issues: "(1) If Wis. Stat. §
81.17 is applicable, what effect does entering into a valid
Pierringer release with a settling defendant have for the
plaintiff ... in attempting to enforce judgment against the non-settling
[city]? (2) Did the [city], by its actions, waive its affirmative
As to the first issue, section 81.17 "creates primary and secondary
liability for injuries caused by highway defects or defects on other
public grounds" (¶22). A city's liability is successive: "any
liability the municipality may have is only for the portion of the
damages and costs the private individual is unable to pay" (¶26).
The record clearly established that Keller had primary liability.
Moreover, a jury had found Keller 9 percent causally negligent. Yet,
since Keller had been dismissed from the lawsuit, "no judgment can be
rendered against Keller, and no execution can issue and be returned
unsatisfied" as required by section 81.17 (¶27). The court noted
that this construction of the statute has remained unchanged since 1898
(¶ 33). "By entering into the Pierringer release, [the
plaintiff] was essentially agreeing to accept a lesser amount in damages
by releasing the individual that turned out to be primarily liable under
the statute" (¶34). Thus, section 81.17 barred any recovery against
On the second issue, the court held that the city had not waived its
defenses under the statute. Under case law, "the non-settling tortfeasor
has no control over a claimant's decision to settle with another
tortfeasor" (¶41). Since the city had no standing to object, it did
not waive its rights under section 81.17 by not objecting to the
plaintiff's settlement with Keller. Nor did the city waive its assertion
under the statute by not objecting to the stipulation and order that
dismissed the city's cross claims against Keller (¶47).