Vol. 76, No. 9, September
Court of Appeals Digest
This column summarizes selected published
opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and
Prof. Thomas J. Hammer invite comments and questions about the digests.
They can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Search and Seizure - Warrantless Entry of a Home to Make OWI
State v. Larson,
2003 WI App 150 (filed 18 June 2003) (ordered published 30 July
A deputy sheriff received two dispatches regarding a possible
intoxicated driver and providing a description of the vehicle, including
its license number. The deputy determined that the vehicle was
registered to the defendant and went to the apartment building where he
lived, observing a vehicle fitting the description parked at that
address. The deputy knocked on the door of the defendant's apartment.
When the defendant opened the door, the deputy placed his foot across
the threshold to prevent the door from being slammed on him. In that
position he questioned the defendant, who admitted owning the vehicle
and having just driven home from a bar. The deputy smelled the odor of
intoxicants on the defendant and detected slurred speech. Based upon
this interaction, the deputy believed the defendant was under the
influence and moved further into the apartment and placed him under
The defendant was charged with OWI as a second offense, which is a
criminal violation. The defendant moved to suppress evidence seized
subsequent to the officer's entry into his residence without a warrant.
The circuit court denied the motion.
In a decision authored by Judge Brown, the court of appeals reversed.
The court first considered whether the deputy's step into the threshold
of the defendant's apartment, which prevented the defendant from closing
the door, was an entry into the apartment triggering the Fourth
Amendment's warrant requirement. Relying on State v. Johnson,
177 Wis. 2d 224, 501 N.W.2d 876 (Ct. App. 1993), the court concluded
that the deputy's step into the threshold was an entry for Fourth
Amendment purposes. Johnson teaches that "even if the officer's
incursion only extends from the tips of his toes to the balls of his
feet, this incursion is the fixed `first footing' against which the
United States Supreme Court and the Wisconsin Supreme Court have
previously warned" (¶ 11).
Next, the court concluded that, at the moment the deputy put his foot
inside the doorway, he did not have probable cause to arrest the
defendant. However, even were the court to assume that probable cause
existed, the defendant still should have prevailed on his motion to
suppress, because the state did not demonstrate that exigent
circumstances were present that would have justified a warrantless
entry. The officer in this case was not faced with exigent circumstances
during his encounter with the defendant at the apartment. Exigent
circumstances may, in some circumstances, arise because of danger to
life if an arrest is not made immediately. Only where a delay in the
investigation would gravely endanger lives does this factor in the
exigency formulation come into play. The facts of this case did not
present such a situation. The court further concluded that this case did
not involve a convincing claim of "hot pursuit" and, because the
defendant had already arrived at home and parked his car, there was
little threat to public safety. Lastly, the court concluded that, under
Welsh v. Wisconsin, 466 U.S. 740 (1984), a warrantless home
arrest could not be upheld simply because evidence of the defendant's
blood alcohol level might have dissipated while the police obtained a
Disclosure of Exculpatory Evidence - Discovery
State v. Harris,
2003 WI App 144 (filed 18 June 2003) (ordered published 30 July
On April 24, 2001, the state filed a criminal complaint alleging that
the defendant had sexual contact with a 6-year-old child. The defense
filed a demand for discovery and inspection in which it demanded that
the state provide all exculpatory evidence, including evidence that
would lead to further investigation. Ultimately, the defendant pleaded
guilty to first-degree sexual assault of a child.
Shortly after sentencing, the prosecutor informed defense counsel
that in June 2001, the child made an allegation that her grandfather
(who was not the defendant) had sexually assaulted her in February 2001.
The defendant filed a motion for post conviction discovery and a motion
to withdraw his guilty plea. The circuit court conducted a hearing and
granted the motion, finding that the state failed to turn over
potentially exculpatory evidence in violation of the defendant's
In a decision authored by Judge Anderson, the court of appeals
affirmed. On a constitutional level, the court applied Wisconsin
precedent, which holds that once a defendant makes a pre-plea discovery
demand requesting any potentially exculpatory evidence in the state's
exclusive control, the state must provide the defense with the evidence
before the plea is taken. See State v. Sturgeon, 231 Wis. 2d
487, 605 N.W.2d 589 (Ct. App. 1999). The court did not apply the recent
U.S. Supreme Court case of United States v. Ruiz, 536 U.S. 622
(2002), which it distinguished because the federal case did not address
a written pre-discovery demand.
The appellate court concluded that the circuit judge correctly
applied Wisconsin precedent and properly exercised his discretion when
allowing the defendant to withdraw his plea. A violation of the
defendant's constitutional rights occurred, that violation caused him to
plead guilty, and at the time of the plea, the defendant was unaware of
the potential constitutional challenges to the case against him because
of the violation. The court concluded that the undisclosed evidence was
potentially exculpatory for several reasons; for example, it showed an
alternative source for the young victim's sexual knowledge and it showed
that it is possible that the child did not wish to disclose the sexual
assault by the grandfather and projected it onto the defendant.
The court also concluded that there was a violation of the discovery
statutes. Upon demand, the district attorney must disclose any
exculpatory evidence. See Wis. Stat. § 971.23(1)(h). The
state argued that the statutory term "exculpatory evidence" is limited
to evidence that is constitutionally required to be disclosed under
Brady v. Maryland, 373 U.S. 83 (1963). The court disagreed.
"Our review of the legislative history of § 971.23(1)(h) does not
support that it was simply meant to be a codification of Brady.
The discovery statute in Wisconsin is apart from constitutional law
principles and directs the district attorney, upon demand, to disclose
`any exculpatory evidence.' [The defendant] made a statutory demand and
the state's failure to disclose the potentially exculpatory evidence of
an alleged sexual assault by [the young victim's] grandfather was a
violation of [the statute]" (¶ 46).
Title VII - Actions on Settlement Agreements - Sovereign
Klein v. Board of Regents of
the University of Wisconsin System, 2003 WI App 118 (filed 15
May 2003) (ordered published 25 June 2003)
When the plaintiff was denied tenure at U.W.-Stout, she filed a Title
VII discrimination complaint alleging that tenure had been denied in
retaliation for her complaints of sexual harassment at the university.
The Equal Employment Opportunity Commission facilitated mediation and a
settlement agreement was reached.
The plaintiff subsequently brought this suit under the settlement
agreement claiming that U.W.-Stout failed to comply with all of the
terms thereof. The Board of Regents moved to dismiss based on sovereign
immunity. The circuit court interpreted the settlement agreement as part
of the plaintiff's Title VII claim and concluded that sovereign immunity
did not bar her lawsuit.
In a decision authored by Judge Roggensack, the court of appeals
agreed with the decision of the circuit court on the immunity question.
The Wisconsin Supreme Court has held that sovereign immunity does not
lie against a claim brought under Title VII. See Lindas v.
Cady, 150 Wis. 2d 421, 441 N.W.2d 705 (1989). The appellate court
concluded that the plaintiff's present action is part of her initial
Title VII claim and, as such, sovereign immunity does not lie. Said the
court, "to conclude otherwise would undermine the policy of voluntary
compliance, that is most often achieved through settlement agreements,
and force more cases into court for judicial resolution of the initial
Title VII claims" (¶ 13).
Back Pay - Entitlement of Former Employees
Beaudette v. Eau Claire
County Sheriff's Dept., 2003 WI App 153 (filed 3 June 2003)
(ordered published 30 July 2003)
The plaintiffs resigned from employment with the Eau Claire County
Sheriff's Department while it was negotiating a new collective
bargaining agreement with their union. The previous contract had expired
and, at the time the plaintiffs left employment, the department and the
union had not reached a new agreement. Ultimately, when a new agreement
was reached, current employees received retroactive wage increases.
However, the county denied retroactive pay to employees like the
plaintiffs who had stopped working for the county during contract
negotiations. The plaintiffs sought and eventually were awarded
retroactive pay by the circuit court.
In a decision authored by Chief Judge Cane, the court of appeals
affirmed. The new contract is retroactive to Jan. 1, 1996, and covers
the period from that date to Dec. 31, 1999. It was undisputed that the
plaintiffs worked for the department during this period (having
terminated their employment in 1998). Had the contract been signed on
its effective start date, the plaintiffs would have received their wage
increases. The appellate court did not discern any ambiguity in the
contract because of its failure to address retroactivity. Instead, said
the court, the contract is unambiguous. People who worked in the
bargaining unit during the term of the new agreement are entitled to be
paid according to its terms. This includes the plaintiffs who brought
Divestment of Assets - Irrevocable Trusts
Estate of Gonwa v. Wisconsin Dept. of Health & Family
Servs., 2003 WI App 152 (filed 11 June 2003) (ordered published 30
On Feb. 21, 2000, Gerald and Janice Gonwa established the Gerald and
Janice Gonwa irrevocable trust agreement. The irrevocable trust named
Gerald and Janice as initial trust income beneficiaries and Gerald's
children as principal beneficiaries. That same day, Gerald and Janice
sold to the irrevocable trust $150,000 of assets pursuant to a private
annuity agreement. According to the terms of the private annuity
agreement, the irrevocable trust would make payments to the Gonwas,
except when one intended to make an application for Medicaid, all
payments under the private annuity agreement would be allocated and paid
out to the nonapplying spouse and the applying spouse "shall not be
entitled to any payments" under the agreement. Similarly, the trust
agreement's provisions governing the disposition of principal and income
stated that, at such time as either Gerald or Janice intends to make
application for Medicaid, then in that event all of the income of the
trust shall be allocated and paid out to the settlor who is not making
an application and that the settlor who is making such application shall
not be entitled to any payments of income under the trust.
Gerald entered a nursing home in March 2000 and first applied for
institutional Medical Assistance (MA) in June 2000. MA was denied
because it was determined that the trust had divested $150,000 in funds
during the "look-back period" when it purchased the private annuity,
thereby creating divestment ineligibility from Feb. 1, 2000 to Jan. 1,
2003. The circuit court upheld the determination of the Department of
Health and Family Services that Gerald was ineligible for MA based on
the divestment of assets. In a decision authored by Judge Nettesheim,
the court of appeals affirmed.
MA is a joint federal and state program aimed at ensuring medical
care for those who cannot pay for their own care. An applicant must meet
the financial requirements set forth in Wis. Stat. chapter 49 in order
to be eligible for MA, and one can become ineligible for certain MA
benefits if he or she transfers assets in a manner prohibited by
statute. The department determined, pursuant to section 49.454(3)(b),
that the Gonwases' sale of a $150,000 private annuity to an irrevocable
trust that prohibits payments to Gerald or payments made for his benefit
was a divestment pursuant to section 49.453. Giving due weight to the
department's decision, the appellate court concluded that its
interpretation of the applicable MA statutes was reasonable.
Invasion of Privacy - Disclosure of Information to a Single
Person - Offers of Judgment
LeDoux, 2003 WI App 120 (filed 28 May 2003) (ordered published
25 June 2003)
LeDoux was employed by a fire department as an emergency medical
technician. In that capacity she provided emergency medical attention to
the plaintiff. Subsequently, she told a friend that she had assisted in
transporting the plaintiff to a hospital emergency room for a possible
overdose. LeDoux knew that this friend was a coworker of the plaintiff
at a different hospital. The friend to whom the information was
disclosed subsequently revealed the information to other staff at the
hospital where the plaintiff was employed.
In this case, the plaintiff alleged that LeDoux had defamed her and
violated her privacy by publicizing information concerning her medical
condition and making untrue statements indicating that she had attempted
suicide. A pretrial offer of judgment made by LeDoux and a pretrial
offer of settlement by the plaintiff were both rejected. The plaintiff
prevailed at a jury trial.
Among the issues on appeal was whether an invasion of privacy under
Wis. Stat. section 895.50(2)(c) can occur when private information is
disclosed to a single person. "Publicity" has been defined for purposes
of section 895.50 to mean that "the matter is made public, by
communicating it to the public at large, or to so many persons that the
matter must be regarded as substantially certain to become one of public
knowledge." Hillman v. Columbia County, 164 Wis. 2d 376, 394,
474 N.W.2d 913 (Ct. App. 1991). The defendant argued that she told only
one person about the medical call and it was that person - not the
defendant - who further publicized the information to the staff of the
hospital where the plaintiff was employed.
In a decision authored by Judge Nettesheim, the court of appeals
rejected the assertion that a disclosure of private information to one
person can never constitute "publicity." Instead, it agreed with the
trial court that the character and nature of the one person to whom the
offending information was communicated, here the mutual friend, was a
matter that had to be probed at a full trial. As stated by the trial
court, there was a genuine issue of material fact as to the type and
character of the mutual friend, because there was no evidence as to
whether she was the "biggest gossip [in the town and at the hospital
where she and the plaintiff worked] or whether she had the stiffest
upper lip of anyone in the state" (¶ 21).
In sum, the court concluded "that disclosure of private information
to one person or to a small group does not, as a matter of law in all
cases, fail to satisfy the publicity element of an invasion of privacy
claim. Rather, whether such a disclosure satisfies the publicity element
of an invasion of privacy claim depends upon the particular facts of the
case and the nature of the plaintiff's relationship to the audience who
received the information" (¶ 24).
Another issue before the appellate court in this case involved the
defendant's pretrial offer of judgment that was made pursuant to Wis.
Stat. section 807.01(1). The trial court ruled that the offer was
defective because it did not include an allowance for the plaintiff's
reasonable attorney fees. In addition, when measuring the defendant's
offer of judgment against the final judgment, the court added the
plaintiff's attorney fees to the jury's compensatory damage award, which
put the amount of the judgment in excess of the defendant's offer. The
defendant challenged both of these conclusions.
The appellate court held that when a defendant is sued under a fee
shifting statute, such as section 895.50 in this case, that party is on
notice that the plaintiff is seeking not only damages but also
reasonable attorney fees. Accordingly, when making an offer of judgment,
the defendant is properly held to include such fees and to so inform the
plaintiff. From that it logically follows that the trial court should
also include attorney fees in the judgment when it determines whether
the judgment exceeds the offer for purposes of relief under section