Vol. 76, 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
Motions to Reconsider "New Issue"
State v. Edwards,
2003 WI 68 (filed 27 June 2003)
The circuit court dismissed criminal charges against the defendant
because the state had not brought its prosecution within the statutory
time limit. The state filed a motion to reconsider, which asked the
court to specify whether the dismissal was with or without prejudice.
The trial court denied the motion, ruling that its original judgment was
with prejudice. The state then appealed, but the court of appeals
dismissed the appeal on the ground that the state's motion to reconsider
had not raised a "new issue" that was distinct from the original
The supreme court, in an opinion written by Justice Bablitch,
reversed. The sole issue was whether the state's motion to reconsider
raised a "new issue" that had not been disposed of by the original
judgment or order (¶8). Wisconsin courts have "liberally applied"
the new issue test. "The State's motion for reconsideration requested
that the circuit court specify whether the dismissal was with or without
prejudice. It was not clear from the September 5th hearing whether the
dismissal was with prejudice; consequently, the issue was not 'disposed
of' in the original judgment. Only after the October 23, 2001 hearing on
the State's motion for reconsideration was it clear that the dismissal
was with prejudice. Therefore, since the motion for reconsideration
raised a new issue, the State may appeal the denial of its motion for
reconsideration to the court of appeals" (¶13).
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Personal Jurisdiction - Service of Process on Bodies Politic Under
Wis. Stat. Section 801.11(4)(a) and (b)
Hagen v. City of Milwaukee
Employees' Retirement Sys. Annuity & Pension Bd., 2003 WI
56 (filed 18 June 2003)
The plaintiff filed a summons and complaint against the city of
Milwaukee Employees' Retirement System Annuity and Pension Board (MERS)
seeking review of MERS's decision to terminate his disability benefits.
A private process server went to the offices of MERS at the Milwaukee
City Hall to serve MERS with legal process. A person in the office
informed the process server that the summons and complaint had to be
served at the city clerk's office. The process server then went to the
city clerk's office, where he served the papers. A staff assistant in
the office accepted service.
MERS is a separate political body from the city of Milwaukee. The
city clerk's office accepts service of process for the city of Milwaukee
only, not for any other municipal entity. Thus, MERS was never served
with the summons and complaint.
MERS moved for summary judgment on the ground that the court lacked
personal jurisdiction due to the improper service. The circuit court
granted the motion, and the court of appeals affirmed the circuit
In a unanimous decision authored by Justice Sykes, the supreme court
affirmed the court of appeals. It held that a circuit court cannot
acquire personal jurisdiction over a defendant when the plaintiff does
not serve the summons and complaint on the defendant but instead
mistakenly serves a nonparty in the same building, allegedly after
having been directed to do so by a person in the defendant's office.
Service on a body politic like MERS requires service on an officer,
director, or managing agent. In lieu thereof, service may be
accomplished by leaving a copy of the process with the person who is
apparently in charge of the office of such officer, director, or
managing agent. See Wis. Stat. § 801.11(4)(a), (b). The
statute does not allow for substitute service on a separate and distinct
nonparty political corporation, even when such service occurs as the
result of a mistake and the mistake could be considered reasonable.
Because MERS was never served in this case, the circuit court properly
granted summary judgment dismissing the action.
Substitution of Judge - Parties "United in Interest"
State ex rel. Cincinnati Ins.
Co. v. Circuit Court for Milwaukee County, 2003 WI 57 (filed 18
Hidden Oaks Homeowners Association and 47 individual owners of Hidden
Oaks condominiums sued the developers and sellers of Hidden Oaks. The
complaint did not allege the dates on which injuries occurred or damages
arose. The defendants then filed third-party complaints against the
Cincinnati Insurance Co. (Cincinnati) and Continental Insurance Co.
(Continental). The defendants are named insureds on policies issued by
Continental beginning Dec. 31, 1996 and lasting through Dec. 31, 1999.
They are also named insureds on policies issued by Cincinnati beginning
Dec. 31, 1999 and lasting through Dec. 31, 2003.
The case was originally assigned to Milwaukee County Circuit Judge
Thomas Cooper, but Continental filed a timely substitution request,
which Judge Cooper granted. The case was then reassigned to Milwaukee
County Circuit Judge Dominic Amato. Cincinnati then sought substitution
of Judge Amato, but Judge Amato denied the request, reasoning that
Cincinnati and Continental were parties "united in interest." Because
Continental had already sought and obtained one substitution, Judge
Amato concluded that Cincinnati was not entitled to another
Cincinnati sought review of Judge Amato's decision by the chief judge
of Milwaukee County, who concluded that the decision was correct. The
court of appeals subsequently denied Cincinnati's petition for a
supervisory writ. Cincinnati then sought a supervisory writ before the
supreme court. In a decision authored by Chief Justice Abrahamson, the
supreme court granted the petition directing the chief judge of
Milwaukee County to honor Cincinnati's substitution request.
The question of law before the supreme court was whether Cincinnati
is "united in interest" with Continental for purposes of Wis. Stat.
section 801.58(3) such that they are entitled to only one substitution
request between them. The court held that because the two companies'
policies were in effect on different dates and provide different types
of coverages, the companies have directly adverse interests in the
present case and are not "united in interest" for purposes of the
Justice Wilcox filed a concurring opinion.
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Contracts - Economic Loss Doctrine - Fraud - Damages
Digicorp Inc. v. Ameritech
Corp., 2003 WI 54 (filed 3 June 2003)
This case presented three issues. The first is whether "Wisconsin law
recognize[s] the so-called 'fraud in the inducement exception' to the
economic loss doctrine and, if so," what the elements of the exception
are. The second issue is whether "a subcontractor of the party to whom
the alleged misrepresentations were made [could] avoid the operation of
the economic loss doctrine because it was not in contractual privity
with the party that made the alleged misrepresentation." The third issue
is whether "the allegedly defrauded party [may] recover the benefit of
the bargain premised upon the continuing vitality of the contract"
(assuming the economic loss doctrine does not bar a claim for fraud in
the inducement) (¶20).
Digicorp, an authorized Ameritech distributor, had Ameritech's
approval to sell various calling services and plans through a third
party, Bacher Communications, which was not an authorized Ameritech
distributor. Problems arose when an Ameritech employee failed to inform
Digicorp that a Bacher salesman had engaged in fraudulent acts while
selling Ameritech services for another distributor. It later surfaced
that the salesman engaged in similar, far-reaching frauds while working
for Bacher. Ameritech then terminated Digicorp as an authorized
distributor, which effectively cut off Bacher as well.
The ensuing litigation involved a wide range of claims and
counterclaims among Digicorp, Ameritech, and Bacher. A jury awarded
Digicorp damages against Ameritech for breach of contract, intentional
misrepresentation, and punitive damages. Bacher also received damages
for Ameritech's misrepresentation. Ameritech, in turn, received some
damages from Digicorp for breach of contract. The court of appeals
reversed the damage award to Ameritech for Digicorp's breach but
affirmed the judgment in other respects.
Writing for a five-person court, Justice Crooks reversed the court of
appeals and remanded the case. (Chief Justice Abrahamson and Justice
Wilcox did not participate.) Addressing the three issues before it, the
court first held that "Wisconsin recognizes a narrow fraud in the
inducement exception, such as the one adopted in Huron Tool and
Engineering Co. v. Precision Consulting Services, Inc., 532 N.W.2d
541 (Mich. App. 1995)." The economic loss doctrine "acts as a bar where
the fraud is interwoven with the contract, and not extraneous to it."
(¶21). The supreme court overruled Douglas-Hanson Co. v. BF
Goodrich, 229 Wis. 2d 132, 598 N.W.2d 262 (1999), "to the extent
that it is contrary to that narrow exception" (¶51). "It seems
clear that, generally, in order for the fraud in the inducement
exception to apply, the misrepresentation would have occurred before the
formation of the contract. In addition, to constitute deceit or
intentional misrepresentation, a plaintiff would have to prove the five
elements set forth in the case law and in Wisconsin Civil Jury
Instruction 2401" (¶52).
The court answered the second question in the negative: "The economic
loss doctrine precludes recovery in tort for solely economic losses,
regardless of whether privity of contract exists between the parties"
(¶22). And it answered the third question in the negative as well:
"Where the fraud in the inducement exception applies, recovery for the
benefit of the bargain is not permitted" (¶23). The court said that
a contrary holding would contravene not only the logic of the fraud
exception "but [also] the core principles of the doctrine of election of
Justice Sykes concurred in part and dissented in part. Justice
Bradley, joined by Justice Bablitch, dissented.
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Allegation of Habitual Criminality - Erroneous Allegation of Date of
State v. Stynes,
2003 WI 65 (filed 26 June 2003)
The defendant was charged in a criminal complaint with numerous
offenses. The state also added an allegation of habitual criminality,
claiming that on March 18, 1998, the defendant had been convicted of
specified crimes. After the defendant was convicted by a jury on the new
charges, a presentence investigation (PSI) was ordered. The PSI included
the defendant's criminal history and reported that the prior convictions
supporting the charge of habitual criminality occurred on March 17, 1998
- not March 18, 1998, as alleged in the complaint. The circuit court
sentenced the defendant using the extra imprisonment time that was
available under the habitual criminality statute.
The defendant filed a post-conviction motion seeking commutation of
the penalties imposed, because the state failed to comply with notice
requirements related to the habitual criminality allegations. He argued
that although there was evidence of convictions dated March 17, 1998 in
the PSI report, there was no evidence in the record for any prior
convictions on March 18, 1998, as alleged in the criminal complaint. The
circuit court denied the post-conviction motion. The court of appeals
reversed and ordered the defendant's sentence commuted to the maximum
term authorized by statute without any habitual criminality
In a majority decision authored by Justice Bradley, the supreme court
reversed the court of appeals. It concluded that the criminal complaint
provided the defendant with the required notice of the predicate
convictions. "Because the complaint, in referring to those convictions,
described the offenses, stated the correct county where the convictions
occurred, cited the case number, and misstated the date of the
convictions by only one calendar day, we determine that the misstatement
did not meaningfully change the basis on which [the defendant] entered
his plea" (¶ 2).
Chief Justice Abrahamson filed a concurring opinion.
Confessions - Miranda-Goodchild Hearings
State v. Jiles, 2003
WI 66 (filed 27 June 2003)
This case raises issues regarding the conduct of
Miranda-Goodchild hearings, which are used to determine the
admissibility of confessions. In this case, the state was not prepared
for the hearing and showed surprise that the defendant had filed a
motion to suppress his confession. Nonetheless, the "hearing" proceeded,
with the judge taking over, reviewing on the record the unsworn police
report detailing the confession, and then finding that the state had met
its production burden of showing both compliance with Miranda
and voluntariness of the statement. The court then gave defense counsel
an opportunity to present evidence. The defendant took the stand and
testified that he did not know what the Miranda warnings were
and that he was under the influence of marijuana when he was questioned.
The court then concluded that Miranda had been complied with
and that the confession was voluntary. Accordingly, it denied the motion
to suppress and the defendant subsequently pleaded guilty. The court of
In a unanimous decision authored by Justice Prosser, the supreme
court reversed the court of appeals. The court concluded that the
defendant did not receive a full and fair evidentiary hearing on the
motion to suppress his statement. Said the court, "the
Miranda-Goodchild hearing is an evidentiary hearing for the
parties. It is not a soliloquy for the court. The court must not permit
itself to become a witness or an advocate for one party. A defendant
does not receive a full and fair evidentiary hearing when the role of
the prosecutor is played by the judge and the assistant district
attorney is reduced to a bystander. We hold that the procedure employed
by the court in this hearing did not conform with the minimum
requirements of [Wis. Stat.] § 971.31(3) for an 'evidentiary
hearing' and 'did not afford a reliable determination of the
voluntariness of the confession [to be] offered in evidence at trial'"
(¶ 39, quoting Jackson v. Denno, 378 U.S. 368, 377
The court observed that it will rarely be the case that the state is
able to meet its burden of proof at a Miranda-Goodchild hearing
by relying exclusively on an unsworn police report. In this case it did
not and, accordingly, the court reversed the conviction.
Sex Offender Registration when Defendant Convicted of Bail Jumping
with a Sex Offense Dismissed and Read In
State v. Martel,
2003 WI 70 (filed 27 June 2003)
The defendant was charged with several offenses, including bail
jumping and six counts of second-degree sexual assault of a child.
Pursuant to a plea agreement, he pleaded no contest to the bail jumping
charge. The sexual assault charges were dismissed and read in, which
means that the court could consider them in determining the appropriate
sentence on the bail jumping charge.
The court placed the defendant on probation and ordered him to
register as a sex offender as a probation condition. When the defendant
subsequently filed a motion to remove sex offender registration as a
condition of probation, the circuit court denied the motion. The
defendant appealed, and the court of appeals certified the case to the
supreme court. The certified question was whether a circuit court may
order sex offender registration as a probation condition for a defendant
who has not been convicted and sentenced for one of the crimes
enumerated in the sex offender registration statute or its counterpart
in the sentencing code. See Wis. Stat. §§ 301.45,
In a unanimous decision authored by Justice Sykes, the supreme court
reversed. It concluded that section 973.048, which details when a court
may or must impose sex offender registration, limits the circuit court's
discretion to order registration to those instances in which persons are
sentenced or placed on probation for an offense enumerated in the
statute. Bail jumping is not among the crimes listed in section 973.048
or in section 301.45, which establishes the sex offender registry and
imposes registration requirements upon persons meeting statutory
criteria. Because the defendant in this case was not sentenced or placed
on probation for an offense enumerated in section 973.048 or 301.45, the
circuit court's order of sex offender registration as a probation
condition was error. The supreme court further concluded that the sexual
assault read-ins did not bring the defendant's case within the purview
of section 973.048.
The state argued that even if the statutes that more specifically
govern sex offender registration do not apply, the circuit court's order
was nonetheless valid under the sentencing court's broad discretionary
authority to set probation conditions under the general probation
statute. See Wis. Stat. § 973.09. The supreme court
disagreed. Said the court, "the broad statutory grant of discretion over
conditions of probation cannot be interpreted as vesting the circuit
court with the authority to invoke and apply statutes that are otherwise
plainly inapplicable" (¶ 30).
Truth-in-Sentencing - Presumptive Minimum Sentences
State v. Cole, 2003
WI 59 (filed 19 June 2003)
Under Wisconsin's truth-in-sentencing laws, a sentence to prison must
be bifurcated into two components: an initial term of confinement in
prison and a term of extended supervision. This case arose under the
first set of truth-in-sentencing laws that took effect on Dec. 31, 1999.
See 1997 Wis. Act 283.
The defendant was convicted of delivering more than 15 but less than
40 grams of cocaine. At the time, this unclassified drug felony had a
presumptive minimum imprisonment term of three years. [Editors'
Note: Most minimum imprisonment terms have since been repealed.
See 2001 Wis. Act 109 (the second stage of truth-in sentencing
legislation).] The question raised in this case is whether the
three-year minimum term, which the circuit judge clearly intended to
impose, requires a minimum initial term of confinement of three years
or, alternatively, whether the minimum three-year term may be satisfied
by a combination of confinement and extended supervision that equals
In a unanimous decision authored by Chief Justice Abrahamson, the
supreme court concluded that the three-year presumptive minimum sentence
is a total sentence of three years, consisting of a term of 27 months of
confinement and nine months of extended supervision.
In a footnote, the court observed that its holding in this case has
limited application and is of limited precedential value. "As best we
can tell, the resolution of the Truth in Sentencing issue posed by the
present case will affect only those sentencing decisions having all
three of the following characteristics: (1) the crime for which an
accused is being sentenced was committed on or after December 31, 1999,
but before February 1, 2003; (2) the crime for which the accused is
being sentenced is an unclassified felony for which a minimum sentence
was specified in the statute, namely that the offender 'shall be
imprisoned for not less than [x] years' where x is one or more years;
and (3) the sentencing court expressly states its intent to impose the
minimum sentence specified in the statute" (¶ 10 n.11).
Sentencing - Imposition of Longer Sentence upon Remand Following
Successful Appeal - Due Process - Vindictiveness
State v. Church,
2003 WI 74 (filed 1 July 2003)
The defendant was convicted of several offenses, including
second-degree sexual assault, child sexual exploitation, delivery of a
controlled substance, and two counts of child enticement. The circuit
court sentenced him to 13 years in prison for the sexual assault and
placed him on probation for the other crimes, with the probation to be
served consecutively to the prison term.
The defendant appealed the two convictions for child enticement on
double jeopardy grounds. The court of appeals concluded that the two
convictions were multiplicitous and, accordingly, reversed one of those
two convictions. The court of appeals remanded the case to the circuit
court for resentencing on all counts. At resentencing, the circuit court
imposed a 17-year sentence for the sexual assault and imposed the same
probation periods for the other three convictions that it had earlier
ordered. The defendant appealed again, and this time the court of
In a unanimous decision authored by Justice Sykes, the supreme court
reversed the court of appeals. Two issues were presented to the supreme
court: 1) whether the court of appeals was required to remand this case
for resentencing on all remaining counts after it reversed one of the
multiplicitous child enticement counts; and 2) whether the circuit
court's increased sentence on the sex assault count was presumptively
vindictive and thus in violation of the defendant's right to due
process, and, if so, whether the presumption of vindictiveness was
overcome by adequate, objective new factors in the record justifying the
The supreme court concluded that "resentencing on convictions that
remain intact after an appellate court reverses and vacates one or more
counts in a multi-count case is not always required. Where, as here, the
vacated count did not affect the overall dispositional scheme of the
initial sentence, resentencing on the remaining counts is unnecessary
and therefore not required. Here, however, [the defendant] himself
requested resentencing as a remedy for the multiplicity of the child
enticement counts. Upon resentencing, he received more than a
reimposition of the original dispositional scheme. We conclude that the
increased sentence was presumptively vindictive, in violation of [the
defendant's] right to due process, and that the presumption was not
overcome by adequate, objective new factors in the record justifying the
increase" (¶ 4).
The longer sentence in this case was premised on the passage of time.
Four years of incarceration had gone by since the original sentencing,
and the defendant was still mostly in denial and had not sought or
received treatment. The supreme court said that this does not constitute
"objective information" of "identifiable conduct on the part of the
defendant" subsequent to the original sentencing that would justify a
harsher sentence at resentencing. "It constitutes a subjective
evaluation of the status of [the defendant's] rehabilitation at the time
of resentencing, based not on any new facts but on the mere continued
existence of the original facts" (¶ 56). "[The defendant] was in
denial and untreated at the time of the original sentencing. That he
remained so four years later is not a new factor justifying a longer
sentence after a successful appeal; it is merely a continuation of the
status quo ante" (¶ 57). Further, there was no evidence that the
defendant refused any treatment opportunity while in prison.
Accordingly, the supreme court held that the circuit court's
justification for the longer sentence was insufficient to overcome the
presumption that imposition of a harsher sentence following reversal was
vindictive and thus violative of due process. See North Carolina v.
Pearce, 395 U.S. 711 (1969).
Hearsay - Unanimous Verdict
State v. Norman,
2003 WI 72 (filed 1 July 2003)
A jury convicted the defendant of multiple counts of falsifying
corporate documents. In essence, he stole money and equipment from his
employer by fabricating business records such as invoices and receipts.
The court of appeals affirmed.
The supreme court, in an opinion written by Chief Justice Abrahamson,
also affirmed, in an opinion that addressed an array of issues,
including the sufficiency of evidence. First, the trial court correctly
admitted into evidence the preliminary hearing testimony of a customer
whose transaction had been manipulated by the defendant. The court
conformed with the requirements of the former testimony exception and
the confrontation right when it found the witness unavailable because of
her medical condition. Moreover, the former testimony exception itself
is a "firmly rooted" one that yields sufficiently reliable proof for
constitutional purposes. The court rejected the argument that the
conduct of the preliminary hearing, including the brevity of the
cross-examination and the rules precluding inquiry into credibility of
witnesses, rendered the hearsay inadmissible.
Second, although the trial court erred by excluding extrinsic
evidence of a prior inconsistent statement by a key prosecution witness,
such error was harmless. Indeed, the "same evidence was communicated to
the jury by other means" (¶50).
Third, the trial judge properly instructed the jury about the
elements of the offense. "An accused's right to a unanimous verdict is
not violated every time a judge instructs a jury on a statute that
presents multiple modes of commission and does not select one among the
many modes of a commission" (¶64). Here the defendant failed to
develop the argument that the instruction failed to comport with
Law of the Case - Hearsay - Prior Testimony
State v. Stuart,
2003 WI 73 (filed 1 July 2003)
The defendant was convicted of murdering an acquaintance. At his 1999
murder trial, a key state witness, the defendant's brother, took the
stand but asserted his right against self-incrimination. Despite the
state's offer of immunity and threats of contempt, the brother persisted
in refusing to testify. The state then offered the brother's testimony
from a preliminary examination, but the trial judge ruled it
inadmissible. The state filed an "emergency" appeal. Although the court
of appeals summarily affirmed the ruling on admissibility of the
testimony, the supreme court briefly stayed the trial, heard oral
argument, and issued a decision that reversed the court of appeals (and
ruled the hearsay admissible). The murder trial resumed and the
defendant was convicted. A motion for postconviction relief was denied,
and the court of appeals certified this case to the supreme court.
The supreme court, in an opinion authored by Justice Wilcox, again
addressed the admissibility of the brother's preliminary examination
testimony. First, the court held that its prior decision had established
the law of the case. Taking the opportunity to discuss "law-of-the-case
doctrine" in Wisconsin, the court explained that the "longstanding rule"
provides that "a decision on a legal issue by an appellate court
establishes the law of the case, which must be followed in all
subsequent proceedings in the trial court or on later appeal"
(¶23). The rule, however, is not absolute and a court may
"disregard the doctrine and reconsider prior rulings in a case" when
"cogent, substantial, and proper reasons exist" (¶24). The earlier
"emergency" appeal in this case, said the court, constituted the law of
the case, especially since it reversed a lower court's determination.
Nor did any reason exist to depart from the law of the case
The court next addressed the merits of the defendant's objection to
the preliminary examination testimony and again affirmed its
admissibility. In particular, the use of this hearsay fully comported
with the confrontation right and the hearsay rule, despite the
defendant's claim that factors including the restrictions placed on
cross-examination at preliminary hearings cast doubt on its
Chief Justice Abrahamson, joined by Justice Bradley, concurred in
part and dissented in part. First, they disagreed with the majority's
decision to remand a host of other issues to the court of appeals.
Second, they contended that the court erred in its earlier "emergency"
decision by failing to give reasons for its decision admitting the
preliminary hearing testimony.
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Divorce - Property Division - Unequal Division of Property
LeMere v. LeMere,
2003 WI 67 (filed 27 June 2003)
The parties were married in 1981 and divorced approximately 20 years
later. During the marriage, the husband established and oversaw what
became a very successful family business. His wife held both a full-time
and a part-time job before having children and then dedicated herself to
full-time childrearing and care of the family home.
After a hearing, the trial court divided the marital property, set
child support, and awarded maintenance. In addition to these
determinations, the divorce judgment incorporated various stipulations
the parties had entered into.
Among the issues on appeal was whether the circuit court misused its
discretion when it divided the marital property. The parties' assets,
except for the value of the family business, were divided equally. The
circuit court awarded 65% of the business's value to the husband and 35%
to the wife. The court indicated that it was recognizing the husband's
industriousness and efforts in creating the business enterprise and was
determining that his efforts in starting, maintaining, and expanding the
business resulted in a substantial economic contribution to
the marriage that justified an unequal property division. The court of
appeals affirmed, concluding that the unequal property division was not
an erroneous exercise of discretion by the circuit court.
In a unanimous decision, authored by Justice Sykes, the supreme court
reversed the court of appeals. In reaching this decision, the court
turned to Wis. Stat. section 767.255(3), which establishes a presumption
of equal division of marital property. The statute authorizes the court
to deviate from this presumption of equality, if the court first
considers a lengthy and detailed list of statutory factors. In this
case, the court ordered an unequal division of the largest marital asset
after it considered only one statutory factor (the parties' respective
contributions to the marriage) and it entirely neglected the other
statutory factors. "Moreover, the circuit court's analysis of even this
sole statutory factor contradicts the explicit legislative purpose to
'recognize the valuable contributions of both spouses during the
marriage,' as well as our case law establishing marriage as an equal
partnership, in which the contributions of the spouse who is primarily
engaged in child-rearing and homemaking are presumptively valued equally
with those of the income-earning spouse" (¶ 28).
"This is not to say that the circuit court is precluded from giving
one statutory factor greater weight than another, or from concluding
that some factors may not be applicable at all. Property division in
divorce remains a discretionary decision of the circuit court, but the
record must at least reflect the court's consideration of all applicable
statutory factors before a reviewing court can conclude that the proper
legal standard has been applied to overcome the presumptive equal
property division under Wis. Stat. § 767.255(3). Circuit courts
must subject requests for unequal division of property to the proper
statutory rigor. The failure to do so is an erroneous exercise of
discretion" (¶ 25).
Lastly, the court observed that a circuit judge's failure to address
factually inapplicable statutory factors will not be an erroneous
exercise of discretion. For example, the judge might summarily conclude
that certain of the statutory factors are irrelevant. "Neither do we
hold that every incomplete consideration of the statutory factors must
be reversed as an erroneous exercise of discretion. A circuit court's
failure to consider all the statutory factors might well be harmless,
particularly where the overlooked factors are only marginally relevant
or not relevant at all" (¶ 27).
Child Support - Modification of Child Support Because Payer Is
Dumler, 2003 WI 62 (filed 25 June 2003)
In this case the supreme court considered the role incarceration
plays when a party ordered to pay child support moves for a modification
of the support order. In a majority decision authored by Justice Wilcox,
the court concluded as follows: "Although we find it appropriate for a
court to consider incarceration when reviewing a request for
modification, we find that the fact of incarceration by itself neither
mandates nor prevents modification. Incarceration is one factor that
should be considered, but the determination should be made on a
case-by-case basis, looking at the totality of the relevant
circumstances" (¶ 1).
The court agreed with the decisions of other jurisdictions holding
that parents with child support obligations should not automatically be
rewarded with a payment reduction as a result of incarceration. While
the court acknowledged the financial effects of incarceration, it also
noted that there are strong reasons why parents should not necessarily
be excused from their child support obligations.
Providing guidance to family courts, the supreme court articulated a
number of factors that should be examined when dealing with an
incarcerated party who has moved for a modification of child support.
These factors include "the length of incarceration, the nature of the
offense and the relevant course of conduct leading to incarceration, the
payer's assets, the payer's employability and the likelihood of future
income upon release, the possibility of work release during
incarceration, the amount of arrearages that will accumulate during the
incarceration, and the needs of the children. Wisconsin Stat. §
767.32(1)(c) expressly states that a court may consider changes in
earning capacity in determining the appropriateness of modification. As
such, a court's determination that earning capacity has not changed is
also a relevant consideration. This list, of course, is not exhaustive.
Courts should evaluate all relevant circumstances" (¶ 41).
The court concluded that consideration of the criminal conduct
underlying the incarceration is appropriate, not for purposes of analogy
to the "shirking" situation but rather "for an overall evaluation of the
parent's behavior as it relates to his ability and attitude toward
paying child support" (¶ 42).
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
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"Per Person" Liability Limit - Emotional Distress
Mullen v. Walczak,
2003 WI 75 (filed 1 July 2003)
Mullen was seriously injured in a car accident caused by an uninsured
motorist. While at the scene, Mullen witnessed his wife's death. He
later sued his insurance carrier, American Family, on a claim for
emotional distress. The parties stipulated that Mullen's emotional
distress stemmed solely from observing his wife's death. The court of
appeals held that Mullen's claim must be compensated out of his wife's
"per person" liability limit.
In a decision authored by Justice Bablitch, the supreme court
affirmed. Mullen and American Family had settled the wrongful death
claim for $100,000, which exhausted the policy limits. Mullen argued
that his claim for emotional distress should be covered by his own "each
person" limit, "because all of his injuries, both physical and
emotional, from whatever sources, should be covered by his per person
limit" (¶14). (Mullen's physical injuries did not exhaust the
Although Mullen was not a "bystander" for purposes of the emotional
distress claim, the policy's language provided that his wife's "'each
person' limit includes all damages sustained by all persons as the
result of [the wife's] bodily injury in the accident" (¶20). In
short, "even though Mullen was himself physically injured, his claim for
emotional distress resulted from his wife's injury. Under terms of the
policy, any damages sustained by all persons as the result of [his wife'
s] death are covered by her 'per person' limit" (¶22).
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Court-ordered Deferred Prosecution - Limitations on Prosecutorial
Termination of Court-ordered Deferred Prosecution
State v. Lindsey
A.F., 2003 WI 63 (filed 20 June 2003)
This case arises under the Wisconsin Juvenile Justice Code and its
provisions for deferred prosecution. Wis. Stat. section 938.21(7)
provides as follows: "Deferred prosecution. If the judge or juvenile
court commissioner determines that the best interests of the juvenile
and the public are served, he or she may enter a consent decree under s.
938.32 or order the petition dismissed and refer the matter to the
intake worker for deferred prosecution in accordance with s.
In this case the supreme court addressed two issues relating to
deferred prosecutions. First, may a circuit court dismiss a delinquency
petition and refer the matter to the intake worker for deferred
prosecution if the juvenile is not in custody? Second, if the juvenile
court has such authority, does the district attorney have the power
under section 938.245(6) to terminate the resulting deferred prosecution
agreement by filing a second delinquency petition that contains the same
charge and factual allegations as the first petition?
In a unanimous decision authored by Justice Bradley, the supreme
court held that under section 938.21(7), a circuit court has the
authority to dismiss a juvenile delinquency petition and refer the
matter for deferred prosecution whether or not the juvenile is in
custody. The court further concluded that the district attorney cannot
terminate the resulting deferred prosecution agreement by filing a
second delinquency petition containing the same charge and factual
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Limitations on Actions
Statutes of Limitation - Statutes of Repose
Wenke v. Gehl Co.,
2003 WI 96 (filed 8 July 2003)
[Editors' Background Notes: This case concerns statutes of
limitation and statutes of repose. In Leverence v. United States
Fidelity & Guaranty, 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App.
1990), the court of appeals distinguished between statutes of limitation
and statutes of repose. "A period of limitation bars an action if the
plaintiff does not file suit within a set period of time from the date
on which the cause of action accrued. In contrast, a period of repose
bars a suit a fixed number of years after an action by the defendant
(such as manufacturing a product), even if this period ends before the
plaintiff suffers any injury." Leverence, 158 Wis. 2d at
[The Leverence court was concerned with Wisconsin's
borrowing statute (Wis. Stat. § 893.07) and in that context drew a
distinction between statutes of limitation and statutes of repose.
However, in a recent decision arising out of a different procedural
context, the Wisconsin Supreme Court concluded that the term "statute of
repose" is largely a judicial label for a particular type of limitation
on actions and equated the terms "statute of limitations" and "statute
of repose." See Landis v. Physicians Ins. Co., 2001 WI 86.]
In the present case the court of appeals noted that Landis
arguably overrules Leverence and creates uncertainty in the
case law regarding statutes of limitation and statutes of repose.
Accordingly, the appellate court certified this case to the Wisconsin
Supreme Court, which granted certification. The certified question was
whether the holding of Leverence v. United States Fidelity &
Guaranty, 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990),
distinguishing between statutes of limitation and statutes of repose,
was functionally overruled in Landis v. Physicians Insurance
Co., 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893.
In a per curiam opinion the supreme court vacated its order granting
certification and remanded the case to the court of appeals. The result
occurred because the court was equally divided on whether to affirm or
reverse the circuit court's judgment. Justice Wilcox did not
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Police and Fire Commission Disciplinary Hearing - Wisconsin Fair
Employment Act - Review by Department of Workforce Development of
Firefighter's Claim that Employment Discharge Was Discriminatory
City of Madison v. Department
of Workforce Dev., 2003 WI 76 (filed 1 July 2003)
The city of Madison fire chief filed disciplinary charges against a
Madison firefighter alleging numerous counts of misconduct in violation
of the rules of the Madison Fire Department. The chief recommended that
the firefighter be terminated from employment.
The Madison Police and Fire Commission (PFC) held an evidentiary
hearing on the charges, which were premised on criminal conduct for
which the firefighter had already been convicted. Following this "just
cause" proceeding, conducted pursuant to Wis. Stat. section 62.13(5),
the PFC ordered the firefighter discharged from employment. The
firefighter appealed, and his appeal was dismissed by the circuit court.
The court of appeals affirmed the circuit court's decision.
The firefighter then filed a complaint with the Wisconsin Department
of Workforce Development (DWD). He alleged that when the city terminated
his employment, it discriminated against him on the basis of his
conviction record in violation of the Wisconsin Fair Employment Act
(WFEA). See Wis. Stat. §§ 111.321, .335. The DWD is
the agency of state government authorized to administer the WFEA.
The city responded by filing a petition for a writ of prohibition
against the DWD. The circuit court granted the petition, concluding that
the DWD lacked jurisdiction over the firefighter's complaint because of
the exclusive nature of PFC proceedings under section 62.13(5). On
appeal the court of appeals reversed the circuit court.
In a unanimous decision authored by Justice Sykes, the supreme court
reversed the court of appeals. As described by the court, the issue
before it was whether a firefighter who is terminated from city service
after a "just cause" hearing conducted by a PFC pursuant to section
62.13(5)(em) may, under the WFEA, pursue a discrimination complaint
regarding the termination before the DWD.
The court began its analysis by observing that disciplinary
terminations of city firefighters are imposed and reviewed pursuant to
the procedures established in section 62.13(5). The statutory procedure
requires the PFC to determine whether a proposed disciplinary
termination is supported by just cause, which includes a determination
of whether the rule or order allegedly violated by the firefighter is
reasonable and is being applied without discrimination. See
Wis. Stat. § 62.13(5)(em)2., 6. A termination sustained by a PFC
under section 62.13(5)(em) and (f) is subject only to judicial review in
circuit court under section 62.13(5)(i) or, in certain circumstances, by
common law certiorari.
Accordingly, the court concluded that "any claim that a disciplinary
termination is discriminatory under the WFEA must be raised before the
PFC, the agency with exclusive statutory authority under Wis. Stat.
§ 62.13(5) to review disciplinary actions against firefighters. The
DWD may not take jurisdiction over a WFEA complaint arising out of a
decision of a PFC to terminate a firefighter" (¶ 2).
Petition for Direct Legislation - Initiative
Mount Horeb Community Alert
v. Village Bd. of Mount Horeb, 2003 WI 100 (filed 8 July
Several residents of the village of Mount Horeb, on behalf of the
citizens' organization Mount Horeb Community Alert, filed a petition
pursuant to Wisconsin's direct legislation statute (Wis. Stat. §
9.20) for an ordinance that would require all Mount Horeb capital
improvement projects that exceed $1 million in costs to be put before
the voters in a binding referendum before construction begins. The Mount
Horeb Village Board neither adopted the proposed ordinance nor placed it
on the ballot for consideration by the electorate. This mandamus action
The circuit court denied the writ, concluding that the proposed
ordinance would impermissibly modify the statutorily prescribed
procedures for borrowing funds for municipal expenditures. The court of
appeals reversed. It held that the proposed ordinance was a proper
subject of direct legislation. See 2001 WI App 80. In a
majority opinion authored by Justice Sykes, the supreme court affirmed
the court of appeals.
The direct legislation statute permits local electors to submit a
petition requesting that an attached proposed ordinance either be
adopted by the municipality's governing body without alteration or be
referred to a vote in the next election. See Wis. Stat. §
9.20(1), (4). "Direct legislation in cities and villages pursuant to
Wis. Stat. § 9.20 is qualified only by four narrow limitations
which this court has declared are implicit in the statute. Direct
legislation under Wis. Stat. § 9.20 must be legislative in nature,
cannot repeal an existing ordinance, cannot exceed the powers of the
municipal governing body itself, and cannot modify statutorily
prescribed procedures" (¶ 4). "These limitations preserve municipal
control over executive and administrative functions and protect the
integrity of the statutory framework governing municipalities, while at
the same time permit the proper invocation by electors of the direct
legislation procedure provided by the statute" (¶ 18).
In this case, the court concluded that because the proposed ordinance
is legislative rather than administrative in nature, does not repeal any
existing ordinance, falls within the powers of the village board, and
does not modify or conflict with state statutes that would bind the
village board if it tried to legislate in the same area, the ordinance
is fully consistent with the direct legislation statute. The court held
that the village board was therefore required to act on the petition
under the provisions of section 9.20(4). Accordingly, the supreme court
affirmed the court of appeals and remanded for issuance of the writ of
Justice Crooks filed a dissenting opinion that was joined by Justices
Bablitch and Wilcox.
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Dismissals of Petitions Without Affording Prisoner Opportunity to be
Heard on Merits - Due Process
State ex rel. Schatz v.
McCaughtry, 2003 WI 80 (filed 2 July 2003)
The petitioner, a prison inmate, brought a petition for a writ of
certiorari to review three disciplinary decisions finding that he
violated prison rules. Utilizing screening procedures mandated by the
Prisoner Litigation Reform Act, the circuit court reviewed the pleadings
as to all the claims that were presented, including the extensive record
materials submitted with them. The court concluded that the petition did
not state a claim for relief and dismissed it under authority of Wis.
Stat. section 802.05(3). The petitioner was not given an opportunity to
be heard on the merits of his petition.
The petitioner appealed to the court of appeals. The appellate court
concluded that his constitutional right to due process was violated when
the circuit court dismissed the petition sua sponte without
giving him prior notice of its intent to do so and an additional
opportunity to be heard.
In a unanimous decision authored by Justice Bradley, the supreme
court reversed the court of appeals. It agreed with the state that the
circuit court's dismissal of the petition did not violate the
petitioner's right to due process because section 802.05(3) provides
constructive notice of the potential for a sua sponte dismissal
for failure to state a claim and there are procedural safeguards that
protect against erroneous sua sponte dismissals.
Constructive notice can be sufficient to satisfy due process and the
court concluded that it existed in this case. "The language of §
802.05(3) states that, with respect to an action commenced by a
prisoner, the court 'shall review the initial pleading as soon as
practicable' and 'may dismiss the action or special proceeding ...
without requiring the defendant to answer the pleading if the court
determines that the action or special proceeding ... [f]ails to state a
claim upon which relief may be granted.' This expressly puts prisoners
on notice that a circuit court will examine the initial pleading and
may, without further briefing or hearing on the matter, dismiss the
complaint if the court determines that the initial pleading fails to
state a claim. Accordingly, the prisoner had constructive notice that
his petition could be dismissed if it did not state a claim" (¶
The supreme court next determined that there are procedural
safeguards in place that protect against erroneous sua sponte
dismissals. "An initial safeguard is the standard that a court is
required to apply when considering whether to dismiss for failure to
state a claim. The standard for deciding whether a certiorari petition
is sufficient to order a return is the same standard used to decide
whether a complaint states a claim. It requires that the circuit court
construe the petition liberally and consider dismissal only if it is
quite clear that no relief can be had under
any legal theory" (¶ 33) (citations omitted).
Additional safeguards include the following: 1) the circuit court may
consider whether the petition can be salvaged by amendment; 2) the
dismissal order provides notice to the prisoner of the reason for the
dismissal and the prisoner can request that the circuit court reexamine
its decision to dismiss the petition; 3) in cases in which the dismissal
is without prejudice and the time for filing the petition has not
expired, a prisoner could refile the petition; and 4) the prisoner has
the right to appeal the dismissal order under the provisions of section
Lastly, the court considered and rejected the petitioner's claim that
the sua sponte dismissal of his petition violated his
constitutional right to equal protection of the law under the U.S. and
Disciplinary Actions - Certiorari Review - Exhaustion of
State ex rel. L'Minggio v.
Gamble, 2003 WI 82 (filed 2 July 2003)
Prison officials at the Kettle Moraine Correctional Institution
issued a conduct report against the petitioner for allegedly
participating in gang activity and planning to assault prison staff. The
prison adjustment committee found him guilty and imposed eight days of
adjustment segregation and three years of program segregation. The
petitioner then appealed the adjustment committee's decision to the
program review committee, which rejected his arguments and found him
guilty of the charges. The petitioner was ordered transferred to the
Wisconsin Secure Program Facility in Grant County for three years.
The petitioner appealed the disciplinary determination to the warden,
who affirmed it. After attempting to appeal the warden's decision to the
Secretary of the Department of Corrections, the petitioner filed an
inmate complaint relating to the disciplinary proceeding. The inmate
complaint examiner (ICE) rejected the complaint as untimely. The
petitioner subsequently filed a document in circuit court labeled as a
petition for habeas corpus. However, the circuit court construed it as a
petition for certiorari and then dismissed it as untimely.
The court of appeals affirmed the circuit court, although on
different grounds. It concluded that the petitioner was barred from
seeking judicial review because he failed to exhaust his administrative
remedies. Although he appealed the adjustment committee's decision to
the warden and thereafter filed an inmate complaint as described above,
he failed to pursue additional administrative review of the ICE's
decision. [Such additional review was available to the petitioner under
the administrative code, although the ICE's decision letter in the
petitioner's case failed to advise him about the possibility of further
In a decision authored by Justice Bablitch, the supreme court
reversed the court of appeals. It concluded that the petitioner's
petition was properly construed as an action for certiorari rather than
habeas corpus, since a writ of certiorari provides an adequate remedy in
the law and has historically been used to challenge prison disciplinary
decisions. "We also conclude that [the petitioner] exhausted his
administrative remedies by satisfying the requirements under Wis. Admin.
Code § DOC 310.04. Since the Department of Corrections failed to
provide notice to [him] of any further appeal rights when his inmate
complaint was rejected, we conclude that the Department is estopped from
claiming that [the petitioner] failed to exhaust his administrative
remedies in this case" (¶ 2).
Accordingly, the supreme court reversed and remanded the matter to
the circuit court, where the timeliness of the petitioner's "certiorari"
petition can be litigated.
Chief Justice Abrahamson filed a concurring opinion. Justice Wilcox's
opinion concurring in part and dissenting in part was joined by Justices
Crooks and Sykes.
Prison Disciplinary Actions - Certiorari Review - Failure to Direct
the Writ to the Secretary of the Department of Corrections
State ex rel. Grzelak v.
Bertrand, 2003 WI 102 (filed 9 July 2003)
The petitioner sought a writ of certiorari to review procedural
errors allegedly committed against him during a prison disciplinary
process. The petitioner named the warden at the prison where he was
incarcerated as the respondent in this action. The state argued that the
writ was misdirected because it should have named the Secretary of the
Department of Corrections as the respondent.
The circuit court concluded that the writ should have been directed
to the secretary and that the failure to do so deprived the court of
jurisdiction to hear the matter. The court of appeals summarily affirmed
the circuit court's decision.
In a majority decision authored by Justice Wilcox, the supreme court
reversed the court of appeals for two reasons. First, when the
petitioner filed his petition in June 2000, the statutes and case law
regarding the proper party to serve were ambiguous. Second, naming the
warden was reasonable under the facts and circumstances of this
Previous cases establish the principle that when the applicable law
relating to proper certiorari procedure is ambiguous, service on the
agent of the decision making body is sufficient to give a court
jurisdiction, if such service was reasonable under the circumstances. In
this case the court articulated the following ambiguities: "(1) the lack
of a clear statement in any previous decision, statute, or
administrative regulation providing that when raising procedural issues,
in order to properly file a petition for writ of certiorari an inmate
must name the Secretary of the Department of Corrections as the
respondent; (2) the labyrinth of administrative regulations and case law
regarding who is the proper party to serve; and (3) the fact that [the
petitioner] was initially pursuing both procedural and substantive
claims" (¶ 29). The court went on to conclude that, on the specific
facts of this case, it was reasonable for the petitioner to direct the
writ to the prison warden.
Justice Crooks filed a dissenting opinion that was joined by Justice
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Mandatory Time Limit for First Reexamination - Remedy for Failure to
Conduct Timely Reexamination
State ex rel. Marberry v.
Macht, 2003 WI 79 (filed 2 J