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    Supreme Court Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 76, No. 9, September 2003

    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

    *

    Civil Procedure

    Full Faith and Credit - Tribal Judgments

    Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 2003 WI 118 (filed 17 July 2003)

    This litigation arose out of Teague's firing as the gaming manager for an Indian tribe (the "Band"). Teague filed a lawsuit in the circuit court. While that action was pending, the Band filed a complaint in its tribal court. The circuit court refused to stay its proceedings in deference to the tribal court action, and Teague participated (somewhat) in the tribal court proceedings before the tribal court entered a default judgment against him. The circuit court later granted a judgment in Teague's favor. The court of appeals certified this case to the supreme court to resolve the full faith and credit issues that were left unresolved following an earlier decision in this case, Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 2000 WI 79.

    Justice Crooks delivered the lead opinion. He would have held that the circuit court was required to give full faith and credit to the tribal court judgment, and thus would have reopened the judgment granted in Teague's favor and remanded for a dismissal of Teague's complaint.

    Chief Justice Abrahamson filed a concurring opinion that was joined by Justices Bablitch, Bradley, and Sykes. They agreed with Justice Crooks that the circuit court judgment should be reopened and the case remanded for dismissal of the complaint, although the concurring justices reached that result by a "different path." Following the first decision in 2000, "each court refused to give way and the case is back in this court" (¶59). The lead opinion, according to the concurrence, rests on an inaccurate reading of Wis. Stat. section 806.245 and eliminates "any incentive for tribal courts and state courts to cooperate with each other in cases of concurrent jurisdiction" (¶63). The concurring justices concluded that section 806.245 "does not apply" because the dispositive moment was "that point in the proceedings, prejudgment, when both courts became aware of the other's concurrent exercise of jurisdiction" (¶¶64-65). Accordingly, they looked to "general principles of comity," including abstention, in resolving this conflict. The court then set forth a lengthy list of factors to be considered, concluding that on balance they "favor[ed]" the circuit court ceding jurisdiction to the tribal court (¶78).

    Justices Wilcox and Prosser filed separate dissenting opinions.

    Commercial Law

    Antitrust - Predatory Pricing

    Conley Publishing Group Ltd. v. Journal Communications Inc., 2003 WI 119 (filed 17 July 2003)

    The owners of a newspaper, the Waukesha Freeman (the Freeman), sued Journal Communications Inc., which owns the Milwaukee Journal Sentinel (the Journal). In essence, the Freeman alleged that the Journal was engaged in unlawful anticompetitive practices. The circuit court granted summary judgment to the Journal and dismissed the case. The court of appeals certified the case to the supreme court.

    The supreme court, in a decision written by Justice Prosser, affirmed. First, the court held that a claim for predatory pricing under Wis. Stat. section 133.03 must conform to the requirements set forth in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), which governs parallel claims under the Sherman Antitrust Act. The court neatly summarized the elements: "A plaintiff alleging that a defendant engaged in predatory pricing must prove that (1) the prices and other direct revenues from the practice complained of are below an appropriate measure of the defendant's costs; and (2) the defendant has a dangerous probability of recouping its investment 'losses' in these below-cost prices by later raising prices above competitive levels" (¶3). The opinion examines the Brooke Group standard in considerable detail (see, for example, ¶26). Since the plaintiffs failed to offer such evidence, the trial court properly granted summary judgment. In light of the record in this case, the supreme court declined to address issues relating to the admissibility of expert testimony, the calculation of damages, and causation.

    Criminal Law

    Carrying a Concealed Weapon - Right to Bear Arms

    State v. Hamdan, 2003 WI 113 (filed 15 July 2003)

    The defendant, a grocery store owner, was charged with carrying a concealed weapon (CCW) when police officers observed him with a handgun tucked in his trousers. Officers were conducting a license check at the time; the defendant in no way threatened anyone with the gun. He was convicted of CCW, and this case went to the supreme court on bypass. (The companion to this case, State v. Cole, appears below). This appeal called on the court to determine the effect of a new constitutional amendment, article I, section 25 of the Wisconsin Constitution, on the validity of the CCW statute. Section 25 declares that "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

    The supreme court, in a decision written by Justice Prosser, held that Wis. Stat. section 941.23 (CCW) is constitutional on its face. Nonetheless, on the facts of this case, it was unreasonable and unconstitutional to apply the CCW statute to punish the defendant for his conduct (see ¶43). In particular, the court concluded "that a citizen's desire to exercise the right to keep and bear arms for purposes of security is at its apex when undertaken to secure one's home or privately owned business" (¶67). In future cases where an accused seeks to cloak himself with section 25, said the court, it will be a question of fact whether a defendant had a "lawful purpose" when going armed with a handgun. (The record here was clear.) Part VIII of the opinion sets forth a procedural framework for future prosecutions that raise the same factual and legal issues (¶¶85-89). The court declined to modify a line of cases that construed the "goes armed" element of CCW and also rejected the defendant's argument that he was "privileged" under the law of self-defense to go armed in his store.

    Justice Bablitch concurred and wrote separately to address concerns raised by the dissent. Justice Bradley also concurred but did not join Part VIII for reasons stated.

    Justice Crooks concurred in part and dissented in part. He concluded that the CCW statute is now unconstitutional and should be reworked by the legislature.

    Chief Justice Abrahamson dissented. The CCW statute is constitutional and the court erred by rewriting it to include exceptions for owners of "privately operated businesses and persons in private residences."

    Carrying a Concealed Weapon - Right to Bear Arms

    State v. Cole, 2003 WI 112 (filed 15 July 2003)

    Cole was convicted of carrying a concealed weapon (CCW), contrary to Wis. Stat. section 941.23, after police found two concealed firearms in a car in which he was riding. On appeal, Cole contended that the CCW statute was unconstitutional in light of article I, section 25 of the Wisconsin Constitution. Cole's appeal was heard as a companion to State v. Hamdan, which is summarized above.

    The supreme court, in a decision written by Justice Wilcox, affirmed the conviction. First, the court held that the CCW statute was constitutional on its face (¶44). The opinion offered an extensive constitutional analysis of the statute, to which the reader is referred. Second, it also rejected Cole's argument that the statute was unconstitutional as applied to him. Cole waived this argument by pleading guilty and not raising any constitutional challenge until his motion for postconviction relief (¶46). Moreover, he offered no evidence "of any threat at or near the time he was arrested" that may have given him a colorably lawful reason for going armed (¶48). The court flatly refused to engage Cole's "hypothetical" scenarios that raised an "assortment of restrictions that may apply to transporting a weapon in a vehicle" (¶47). "The right to bear arms is clearly not rendered illusory by prohibiting an individual from keeping a loaded weapon hidden either in the glove compartment or under the front seat in a vehicle" (¶49).

    Chief Justice Abrahamson concurred and joined in parts of Justice Prosser's concurrence as well.

    Justice Crooks concurred on the ground that Cole had waived his right to raise these challenges.

    Justice Prosser, joined by Justice Bradley, supported "much of the majority opinion" and wrote separately to stress certain "nuances" left unaddressed by the majority.

    Multiplicity - Multiple Convictions for Aggravated Battery and Battery by a Prisoner

    State v. Davison, 2003 WI 89 (filed 3 July 2003)

    As a result of a plea negotiation, the defendant was convicted of aggravated battery (Wis. Stat. § 940.19(6)) and battery by a prisoner (Wis. Stat.

    § 940.20(1)) for conduct arising out of the same incident and involving a single victim. Other serious charges were dismissed but read in for purposes of sentencing.

    The circuit court rejected the defendant's claims that his multiple battery convictions were multiplicitous. However, the court of appeals reversed.

    It concluded that the defendant could not be convicted of both batteries due to the provisions of Wis. Stat. section 939.66. This statute provides that a person may not be convicted of both the charged crime and a lesser included offense. In its specification of included crimes, the statute further provides that an included crime may be "a crime which is a less serious or equally serious type of battery than the one charged." See Wis. Stat. § 939.66(2m). The court of appeals concluded that the dual convictions in this case violated this statute, that the two battery charges were thus multiplicitous, that there was a double jeopardy violation, and that these claims were not waived by the defendant's guilty plea. See 2002 WI App 109.

    In a majority decision authored by Justice Prosser, the supreme court reversed the court of appeals. "We hold that the legislature did not clearly intend in § 939.66(2m) to bar convictions for both aggravated battery under § 940.19(6) and battery by prisoner under § 940.20(1) in a single prosecution arising out of a single act. When the broad language of § 939.66(2m) is viewed in its full context, considering its legislative history as well as the different harms addressed by different battery statutes, we conclude that § 939.66(2m) was intended to address specific problems pertaining to [the several battery offenses codified in] § 940.19 and not intended to prohibit cumulative punishments from convictions under the two battery statutes [at issue in this case]" (¶ 3). Put another way, the legislature intended to apply section 939.66(2m) only to the general battery statute (section 940.19) and did not intend to prevent cumulative punishments when the defendant violates both the general battery statute and a special circumstances battery like battery by a prisoner (section 940.20(1)).

    The legislature's intent was critical to the court's conclusion. The two crimes at issue each have elements that the other did not and thus are not identical in law. "Consequently, we are not dealing with a potential double jeopardy violation involving 'the same offense.' The cumulative punishments against the defendant are not 'multiplicitous' either, unless the legislature did not intend to authorize multiple convictions and cumulative punishments for the two battery offenses on these facts. If the legislature did not intend to authorize multiple convictions and cumulative punishments, [the defendant] has a legitimate due process claim. To evaluate this claim, we must concentrate our focus on legislative intent" (¶ 46) (emphasis in original).

    Because the defendant's multiplicity attack failed on the merits, the court declined to decide whether, by pleading guilty, he waived his right to raise this claim.

    Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

    Identity Theft - Wis. Stat. Section 943.201 - False Assuming of Another's Identity to Secure Lower Bail

    State v. Peters, 2003 WI 88 (filed 3 July 2003)

    Wisconsin's identity theft statute (Wis. Stat. § 943.201(2) (1999-2000)) provides that one is guilty of a felony if he or she "uses or attempts to use any personal identifying information or personal identification document of an individual to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual."

    In this case, the defendant was charged with identity theft because she misappropriated another's identity during an arrest and in subsequent bail proceedings to obtain lower bail. The circuit court dismissed the charge, finding the statute inapplicable to the factual situation before it. The state appealed and the court of appeals certified the case to the supreme court.

    In a majority decision authored by Justice Sykes, the supreme court reversed. It concluded that because bail is statutorily defined as "monetary conditions of release" and can be expressed as either cash or a bond, or both, one who misappropriates another's identity and uses it to obtain lower bail in a criminal case has done so to obtain credit or money within the meaning of the identity theft statute.

    Chief Justice Abrahamson filed a concurring opinion that was joined in part by Justices Bablitch and Bradley. Justice Bablitch filed a separate concurrence.

    Criminal Procedure

    Interrogation - Suppression of Physical Evidence Obtained as Direct Result of Intentional Miranda Violation

    State v. Knapp, 2003 WI 121 (filed 22 July 2003)

    This case was before the supreme court on certification from the court of appeals. The certified question was whether physical evidence obtained as the direct result of a Miranda violation should be suppressed when the violation was an intentional attempt to prevent the suspect from exercising his Fifth Amendment rights. Review of the question was necessitated by the recent case of Dickerson v. United States, 530 U.S. 428 (2000), in which the U.S. Supreme Court held that Miranda was a "constitutional decision" and that it created a "constitutional rule."

    In a majority decision authored by Justice Crooks, the court held that "the policy considerations related to deterrent effect and judicial integrity, which are the underpinnings of the exclusionary rule, support the suppression of physical evidence in situations where there was an intentional Miranda violation. We do not have to, and do not, decide whether a negligent Miranda violation would result in the same holding" (¶ 79). In the course of its decision, the court overruled State v. Yang, 2000 WI App 63, which had reached a contrary conclusion on intentional Miranda violations.

    [Editors' Note: The application of the "fruit of the poisonous tree" doctrine to physical evidence obtained as a direct result of a Miranda violation is currently before the U.S. Supreme Court. See United States v. Patane, 304 F.3rd 1013 (10th Cir. 2002), cert. granted, 123 S. Ct. 1788 (2003).]

    In this decision, the court also addressed a variety of other issues, including the real and apparent authority for a consent search, the voluntariness of a confession, and the admissibility of certain hearsay evidence.

    Justice Sykes dissented from the majority's decision on the certified question. Chief Justice Abrahamson, joined by Justice Bradley, dissented from the majority's conclusions regarding apparent authority for a consent search and the application of the "statement of recent perception" exception to the hearsay rule.

    Ineffective Assistance - Multiple Errors - Cumulative Prejudice

    State v. Thiel, 2003 WI 111 (filed 15 July 2003)

    Thiel was convicted of multiple counts of sexual exploitation by a therapist. In postconviction proceedings, the trial court ruled that Thiel had not received effective assistance of counsel and ordered a new trial. The court of appeals reversed.

    The supreme court, in a decision written by Justice Prosser, reversed the court of appeals and ordered a new trial. Calling this a "unique, subtle, and difficult case," the court observed that Thiel's trial counsel "often performed effectively" yet his sub par, failing attempt to impeach the state's witnesses and inadequate trial preparation fell below the constitutional standard for effective assistance of counsel. For example, there was no perceivable "strategic or tactical advantage" for trial counsel not to read the discovery material (¶38). Moreover, on this record "counsel's lack of any significant independent investigation falls outside" the scope of permissible representation (¶45). Finally, counsel also misunderstood certain discovery statutes. Although it ultimately agreed with the trial judge, the supreme court declined the defendant's invitation to carve a new rule that grants "some degree of deference to a trial judge's assessment of counsel's deficient performance" (¶22). A judge's articulated findings are, of course, considered on appeal. Deference is granted only to findings of historical fact.

    The case also confronted the court with the problem of how to "calculate prejudice arising from multiple deficiencies by trial counsel when the specific errors, evaluated individually," do not satisfy the "prejudice" prong of the test (¶59). The court held that the proper approach is one in which "prejudice should be assessed based on the cumulative effect of counsel's deficiencies" (¶59). Needless to say, the court found prejudice on this record (space limitations preclude a fuller exegesis).

    Ineffective Assistance - Conceding Elements - Jury Instructions

    State v. Gordon, 2003 WI 69 (filed 27 June 2003)

    A jury convicted the defendant of several offenses, including disorderly conduct while armed. The court of appeals reversed the conviction on two grounds. First, defense counsel's concession in closing argument that the defendant was "obviously" disorderly while running around the neighborhood with knives was tantamount to a guilty plea. Second, defense counsel failed to object to the absence of a "Peete" instruction, which requires a "nexus" between an underlying offense and a "while armed" penalty enhancer.

    The supreme court, in a decision written by Justice Sykes, reversed the court of appeals. Trial counsel "conceded" the disorderly-conduct-while-armed offense as part of his tactics to win acquittals on the two more serious offenses. The court emphasized that the defendant's own testimony "conceded" these facts (¶25) and foreclosed a "rule of per se ineffectiveness" under these circumstances (¶30). Nor was the defendant "prejudiced," since a jury had no reasonable basis for acquitting him on this count following his own testimony.

    The court also held that the failure to give the Peete instruction was not reversible error. Of particular importance here is that the supreme court overruled three cases that conflicted with more recent precedent (see ¶¶34-40). In sum, even a failure to instruct on all elements of an offense is subject to harmless error analysis. (The court found that the defendant was not prejudiced by the absent Peete instruction because - again - his own testimony conceded the element).

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. They agreed with the court of appeals that defense counsel should never "concede" a charged offense without the defendant's explicit consent (¶46).

    Jurors - Peremptory Strikes - Standard of Review

    State v. Lamon, 2003 WI 78 (filed 2 July 2003)

    The defendant, who is African-American, was convicted of robbery by a jury. The state used a peremptory challenge to strike the only African-American person in the jury pool. The court of appeals affirmed the conviction.

    The supreme court, in a decision written by Justice Crooks, affirmed the court of appeals. The opinion extensively discusses the law and procedures governing the use of peremptory strikes in light of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. The court first held that de novo review was not warranted on the ground that the trial judge had not completely applied the Batson test (in particular, the judge did not voir dire the struck juror to assess his credibility) (¶40). "Wisconsin law is in accord with the U.S. Supreme Court, holding that discriminatory intent is a question of historical fact, and the clearly erroneous standard of review applies at each step of the Batson analysis" (¶45). Applying the Batson test to the record before it, the supreme court held that the trial judge's decisions were not clearly erroneous. "The prosecutor gave credible, race-neutral reasons upon questioning by the court for her peremptory challenges. In this case the record shows that the prosecutor had done research about [the struck juror], which stands in stark contrast to the prosecutor [in another case] who struck the only African-American without knowing anything about the juror" (¶74).

    Chief Justice Abrahamson dissented on grounds that "the majority prohibitively raises the bar for a defendant raising a Batson challenge, lowers the bar for circuit courts that conduct Batson hearings, and neglects its duty to review circuit court determinations that no Batson violation has occurred" (¶94). Justice Bradley, joined by Justice Sykes, also dissented. They would have remanded the case to the circuit court to engage in the analysis required by Batson's third step (namely, was there purposeful discrimination?).

    Postconviction Relief - Imperfect Self-defense - Retroactivity

    State v. Lo, 2003 WI 107 (filed 11 July 2003)

    A jury convicted the defendant of attempted first-degree intentional homicide and other offenses arising out of a gang-related shooting. He claimed that he had acted in self-defense. The court of appeals affirmed.

    The supreme court, in a decision written by Justice Prosser, affirmed the conviction as well. The appeal raised two issues. First, the defendant asked the supreme court to overrule State v. Escalona-Naranjo, 185 Wis. 2d 168 (1994), "which held that a criminal defendant was required to consolidate all postconviction claims into his or her original, supplemental, or amended motion. If a criminal defendant fails to raise a constitutional issue that could have been raised on direct appeal or in a prior [Wis. Stat. § 974.06] motion, the constitutional issue may not become the basis for a subsequent § 974.06 motion unless the court ascertains that a sufficient reason exists for the failure either to allege or to adequately raise the issue in the appeal or previous section 974.06 motion"(¶31). After addressing the defendant's numerous criticisms of this rule, the court reaffirmed the Escalona decision (¶44).

    The second issue related to imperfect self-defense and the effective date of State v. Head, 2002 WI 99, which "modified" the law on self-defense. Conceding that Head's application to this case would probably result in a new trial, the court nevertheless determined that the trial court's instructions were correct when given and that lower courts had relied on pre-Head law. In short, Head does not apply retroactively to cases on collateral review (¶¶84-85).

    Concurring, Justice Bradley agreed with the majority on the first issue but sided with Chief Justice Abrahamson on the second issue.

    Chief Justice Abrahamson dissented on both issues. Escalona has created an inefficient and unjust "procedural morass" (¶110), and Head should be applied retroactively. Justice Bablitch also joined the dissent as to the second issue.

    Competency - Attorney's Opinions - Attorney-Client Privilege

    State v. Meeks, 2003 WI 104 (filed 11 July 2003)

    Meeks was convicted of robbery and felony murder. Before trial, questions arose regarding Meeks' competency to stand trial. In order to demonstrate the defendant's competence, the state called as a witness an attorney who represented Meeks in prior, unrelated matters. In essence, the lawyer testified that she had never raised a question about Meeks' competency in those prior cases. Although she did not testify to anything Meeks wrote or said, Meeks argued that her testimony implicitly conveyed her opinion that he was competent. The court of appeals affirmed.

    The supreme court, in a decision written by Justice Crooks, reversed and remanded the case for a nunc pro tunc competency determination. It held "that an attorney's opinions, perceptions, and impressions relating to a former client's mental competency fall within the definition of a confidential communication pursuant to Wis. Stat. § 905.03(2) and SCR 20:1.6." (¶2) Although the procedural posture is somewhat unique, the court's opinion explores both the lawyer-client privilege and the client-confidences rule.

    Justice Sykes, joined by Justice Prosser, dissented on grounds that the "majority opinion applies a nonexistent legal rule to facts that are not present in this case" (¶62).

    Employment Law

    Whistleblower Law - Disclosure of Information Involving Alleged Mismanagement

    Hutson v. Wisconsin Personnel Commission, 2003 WI 97 (filed 8 July 2003)

    This case arose under Wisconsin's whistleblower law, codified as part of the Wisconsin State Employment Relations Act. See Wis. Stat. ch. 230. The policy behind the whistleblower law is to protect employees from retaliation and to encourage disclosure of certain information.

    In this case a probation and parole agent wrote a memo to her supervisor (with copies to her supervisor's superior and to union officials). The memo spoke to the author's claim of having to handle an excessive caseload and a "lack of clarity under a supervisory style that is extremely arbitrary and capricious."

    The agent subsequently filed a complaint against the Department of Corrections with the Wisconsin Personnel Commission alleging unlawful retaliation against her for having submitted the memo described above. The commission concluded that the memo was not a protected disclosure under the whistleblower law because it did not disclose a "series" of incompetent management actions.

    One type of "information" the disclosure of which is protected under the whistleblower law is information gained by an employee that he or she reasonably believes demonstrates mismanagement. "Mismanagement" is statutorily defined to mean "a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function . . . ." See Wis. Stat. § 230.80(7).

    The Personnel Commission concluded that the statutory language quoted above reflects a clear legislative intent to provide the protections of the whistleblower law only to those employees who identify a "series" of incompetent management actions, that is, more than an isolated instance of alleged mismanagement.

    The court of appeals disagreed. See 2002 WI App 249. The statute uses the term "pattern" and the court looked to ordinary dictionary definitions for a meaning of that term. It found that "pattern" is defined as "a fully realized form, original, or model accepted or proposed for imitation: something regarded as a normative example to be copied." It believed that a "pattern" could be established by a single act and thus the Personnel Commission erred in determining that the agent's memo was not a protected disclosure of "information" under the whistleblower law.

    In a unanimous decision authored by Justice Wilcox, the supreme court reversed the court of appeals. Applying a "due weight" standard of review, the court concluded that the Personnel Commission's interpretation of the statutory language was correct and should be upheld, because its interpretation is more reasonable than that argued by the plaintiff. "Under the circumstances presented here, we conclude that a 'pattern of incompetent management actions' under Wis. Stat. § 230.80(7) requires more than a claim of a single act of incompetent management. We find that [the plaintiff's memo described above] is not a disclosure of information protected under the whistleblower law, and for that reason, we reverse the decision of the court of appeals" (¶ 58).

    Disability - Reasonable Accommodation

    Crystal Lake Cheese Factory v. LIRC, 2003 WI 106 (filed 11 July 2003)

    Catlin was severely and permanently injured as a result of a nonwork-related car accident in 1996. In 1997 she wanted to return to work at the cheese factory, but its management would not permit her to resume her position as the department head. Catlin pursued her remedies, which eventually resulted in a holding by the court of appeals that LIRC acted reasonably when it found that the cheese factory's "refusal to modify Catlin's duties to exempt her from the heaviest physical tasks constituted a denial of reasonable accommodation" (¶19).

    The supreme court, in a decision written by Justice Crooks, affirmed in an opinion that addressed three issues. First, the court held that requiring Catlin's employer to modify her job duties and make physical modifications to the workplace was not unreasonable (¶3). More precisely, case law supports the reasonableness of "LIRC's interpretation of 'reasonable accommodation,'" which is not limited "to that which would allow the employee to perform adequately all of his or her job duties. A change in the job duties may be a reasonable accommodation in a given circumstance" (¶52).

    The court also affirmed on two other issues. The employer was not denied due process when LIRC, "prior to reversing the ALJ's holding, failed to consult with the ALJ" (¶4). Since "LIRC's decision did not hinge upon witness credibility, LIRC was not required to consult with the ALJ" (¶60). Finally, substantial and credible evidence supported LIRC's determination.

    Justice Prosser, joined by Justices Wilcox and Sykes, dissented because the majority opinion failed to accommodate the interests of Wisconsin employers. The dissenters took issue with the proper weight to be accorded LIRC's determination (due weight deference?), the reasonableness of LIRC's interpretation of pertinent statutes, and the factual support for LIRC's determination.

    Evidence

    Other Acts - Appellate Review

    State v. Hunt, 2003 WI 81 (filed 2 July 2003)

    A jury convicted the defendant of six counts of sex-related crimes involving children. The court of appeals reversed all six convictions because it found error in the admission of other-act evidence.

    The supreme court, in a decision written by Justice Crooks, reversed the court of appeals. Most significant, the court held that summary reversal does not automatically follow "in situations where the circuit court fails to set forth a detailed analysis for admitting or excluding other-acts evidence" (¶43). Rather, the "independent review doctrine" imposes a duty on appellate courts to independently scrutinize the record to determine if the trial court properly exercises its discretion in admitting or excluding evidence (¶¶45, 50). Based on its independent review of the record, the supreme court held that the other-act evidence was properly admitted on a variety of permissible grounds, including proof of "context," the victim's state of mind, opportunity, and motive. Although it found that all three prongs of the Sullivan test were met and that the same proof was admissible under the "greater latitude" test (¶88), the court also decided that any error was harmless.

    Justice Bradley dissented, joined by Chief Justice Abrahamson. They argued that the majority's "kitchen-sink" approach to the other-act evidence mirrored the circuit court's failure to apply the Sullivan test with care and precision.

    Hearsay - Right to Testify

    State v. Weed, 2003 WI 85 (filed 3 July 2003)

    Weed was convicted by a jury of murdering her husband. The court of appeals affirmed her conviction.

    The supreme court, in a decision written by Justice Bablitch, affirmed the conviction. The first issue concerned the trial court's admission into evidence of a hearsay statement by the victim to the effect that he had unloaded the gun because of his wife's unhappiness and anger over their decaying marriage. Based on the record, the supreme court found no abuse of discretion in admitting the hearsay under the seldom-used exception for statements of recent perception. The ruling also conformed with the defendant's right of confrontation and, in any event, any error was harmless.

    At trial, Weed did not testify on her own behalf. On appeal, she contended that error occurred because the trial court failed to conduct a waiver hearing on the record. The court held that the right to testify on one's own behalf is a "fundamental right" and adopted the "minority" position that imposes "an affirmative duty on circuit courts to conduct an on-the-record colloquy to ensure that a criminal defendant is knowingly, intelligently, and voluntarily waiving his or her right to testify" (¶41). "The colloquy should consist of a basic inquiry to ensure that (1) the defendant is aware of his or her right to testify and (2) the defendant has discussed this right with his or her counsel." (¶43) Although the trial court conducted no such colloquy in this case, the record nonetheless demonstrated that Weed knowingly, intelligently, and voluntarily waived the right (¶44). The supreme court declined to determine, however, whether in all cases a postconviction hearing will suffice to determine the validity of a waiver of this type (¶47).

    Justice Bradley, joined by Chief Justice Abrahamson, concurred because they agreed that any error was harmless but wrote separately to express their disagreement with the majority's hearsay and confrontation analysis, which, they contend, silently overrules precedent.

    Family Law

    Imposition of Constructive Trust Upon the Marital Portion of Retirement Benefits - Appreciation and Interest

    Sulzer v. Diedrich, 2003 WI 90 (filed 3 July 2003)

    Mary Sulzer was divorced from Frederick Diedrich in 1989. He subsequently married the defendant, Mary Diedrich. When Fred died in 1995, his first wife requested her portion of Fred's retirement benefits as provided for in their divorce judgment. However, her request was denied because Fred's second wife was the sole designated beneficiary of the retirement accounts and because, at the time of the divorce, one of the accounts (Wisconsin Retirement System) could not by law be divided by a qualified domestic relations order.

    Ultimately the first wife brought this action for a constructive trust over the survivorship benefits distributed to the second wife after Diedrich's death. The circuit court initially imposed a constructive trust upon all the funds in question and set a hearing to determine the monetary interest that the first wife may have had in each of the accounts. However, the trial court subsequently vacated the constructive trust and instead awarded the first wife a money judgment in the amount of $169,482.

    Diedrich's second wife appealed, and his first wife cross-appealed. The court of appeals concluded that a money judgment was inappropriate and that the trial court erred in vacating the constructive trust. It also found that the first wife should not have earned appreciation on the benefits after Diedrich's death.

    In a majority decision authored by Justice Bradley, the supreme court modified and affirmed the court of appeals. It concluded that the imposition of a constructive trust was warranted in this case. "A constructive trust is an equitable device used to prevent unjust enrichment which arises when a party receives a benefit the retention of which is unjust to another party. However, unjust enrichment alone is not sufficient to warrant imposing a constructive trust. Rather, a constructive trust will be imposed only when the party who received the property obtained it by specific means as enumerated in our case law, one of such means being the receipt of the property by mistake..." (¶ 20).

    In this case, at the time of divorce, both Fred and his first wife were operating under the assumption that it would be possible to divide his retirement accounts equally. The judgment of divorce indicates that the parties intended that Fred assign one-half of each of his retirement accounts to his first wife. As indicated above, the then existing law did not permit Fred to make such an assignment. "This mutual mistake in 1989 and the naming of [his second wife] as the beneficiary of the accounts in 1992, together with the unjust enrichment that results from [the second wife's] retention of [the first wife's] portion of the accounts, are grounds for the imposition of a constructive trust" (¶ 25).

    The majority further concluded that the constructive trust should include the investment experience of the first wife's portion of the accounts up until the date of payment.

    Justice Sykes filed an opinion concurring with the majority's decision to impose a constructive trust in favor of the first wife, but dissenting from that part of the majority's decision concluding that the trust should include the investment experience up until the date of payment. Justice Sykes said the trust should only include the investment experience until the date of Fred's death. Justice Wilcox joined Justice Sykes' opinion.

    Termination of Parental Rights - Personal Jurisdiction Over Out-of-state Respondent - Uniform Child Custody Jurisdiction Act

    Tammie J.C. v. Robert T.R., 2003 WI 61 (filed 20 June 2003)

    Robert R. and Tammie C. are the parents of Thomas R. He was born in 1988 in Wyoming while his parents were married. The family moved to Arizona in 1991. After Robert was accused of sexually assaulting Tammie's daughter from a previous marriage, Tammie moved back to Wyoming with her daughter and with Thomas. Robert and Tammie were divorced after Robert was sentenced to prison in Arizona. The judgment of divorce, which was issued in Arizona, awarded sole care, custody, and control of Thomas to Tammie and denied any visitation to Robert.

    Tammie subsequently moved with Thomas to Nebraska and thereafter to Wisconsin. In 2000 she filed a petition to terminate Robert's parental rights in the circuit court for Lafayette County, Wisconsin. Robert moved to dismiss, claiming among other things that the Wisconsin court did not have personal jurisdiction over him. [Robert was not served while in Wisconsin, does not live in Wisconsin, and is not engaged in substantial activities in Wisconsin. In fact, he has never been to Wisconsin.] The circuit court denied the motion and terminated Robert's parental rights.

    The court of appeals reversed. It concluded that a court could terminate a person's parental rights only if it had personal jurisdiction over the person, and that the circuit court's exercise of jurisdiction over Robert in this case had no basis because Robert, a resident of Arizona, lacked minimum contacts with Wisconsin.

    In a majority opinion authored by Justice Bradley, the supreme court reversed the court of appeals. While personal jurisdiction through minimum contacts is generally necessary for a judgment to bind any out-of-state person, the court concluded that "the status exception to the general personal jurisdiction requirements, as employed in the Uniform Child Custody Jurisdiction Act, provides a basis for the exercise of jurisdiction in a child custody case. Such an exercise of jurisdiction is consistent with notions of fair play and substantial justice. We also conclude that Wis. Stat. § 801.05(11), which references the UCCJA, provides sufficient due process protection to out-of-state parents based on notice and an opportunity to be heard" (¶ 67).

    Applying these principles to the facts of this case, the court found that Robert was afforded notice, an opportunity to be heard either in person or telephonically, and an opportunity to petition the Arizona court to exercise jurisdiction over the matter. Robert availed himself of all of these procedures. "Under these circumstances, we conclude that Wisconsin's exercise of jurisdiction over Robert complied with traditional notions of substantial justice and fair play and did not violate his rights to due process" (¶ 64).

    Justice Wilcox filed a concurring opinion. Justice Sykes filed a dissent.

    Government

    Judges - Terms - Nonjudicial Offices

    Wagner v. Milwaukee County Election Comm'n, 2003 WI 103 (filed 10 July 2003)

    In an interesting case of rather narrow scope, the supreme court, in a decision written by Justice Wilcox, addressed whether an elected judge could pursue another public office before his or her elected term expired. The court held that article VII, section 10(1) of the Wisconsin Constitution is "more than a dual office holding provision and does, in fact, prohibit a judge or justice from holding a nonjudicial position of public trust during the entire term for which he or she was originally elected, not simply during the judge or justice's actual time of service in the position" (¶2). It also held that this state constitutional provision did not violate the rights to liberty and equal protection. The majority opinion also features a discussion of "justiciablity," a point raised by "the amicus" in the case (see ¶6).

    Justice Bradley, joined by Chief Justice Abrahamson, dissented. They concluded that "the 'term for which elected' ends after a successor is duly elected and qualified" (¶88). (Justice Sykes did not participate.)

    Insurance

    Repair Costs - Subrogation - Collateral Source Rule

    Paulson v. Allstate Ins. Co., 2003 WI 99 (filed 8 July 2003)

    The Paulsons were in a car accident. Their insurer, Midwest Security, paid the car repair bill and later settled with the other insurer, Allstate, which paid 70 percent of the bill. The Paulsons asserted that they were entitled to the difference of 30 percent that Allstate did not pay to Midwest. Given the "odd procedural posture of this case" (¶46), only one issue remained for the supreme court: "If plaintiff's insurance company pays 100 percent of the repair costs, then subsequently settles its subrogation claim with the tortfeasor's insurer for a reduced amount based on plaintiff's alleged contributory negligence, may a plaintiff collect the difference under the collateral source rule?" (¶3)

    The supreme court, in a decision written by Justice Wilcox, answered in the negative (and reversed the court of appeals). In reaching this conclusion, the supreme court overruled contrary case law by the court of appeals (see ¶40). Finding recovery appropriate in these circumstances would allow plaintiffs double recovery and discourage settlement negotiations (¶43).

    Justice Bradley concurred and wrote separately to discuss the "intersection between the collateral source rule and subrogation."

    Conditional Agreement - Coverage

    Fox v. Catholic Knights Ins. Society, 2003 WI 87 (filed 3 July 2003)

    In 1997 Patrick applied for a $150,000 term life policy that named his infant son as the primary beneficiary. Although he also paid the first premium, Patrick's schedule prevented him from completing his medical testing before he was killed in a car accident. (Authorities drew a blood sample after his death to determine if alcohol was involved in the crash.) The central issue was whether the insurance policy provided coverage at the time of Patrick's death. The circuit court granted summary judgment in favor of the insurer, finding it did not. A divided court of appeals reversed on grounds that Wis. Stat. section 631.11(3) effectively "trumped" the otherwise "preclusive effect" of the requirement for a medical examination.

    The supreme court, in a decision written by Justice Wilcox, reversed the court of appeals. The court held that section 631.11(3) "only applies to conditions subsequent, not conditions precedent" (¶22). "A condition precedent relates to the very attachment of risk, whereas a condition subsequent 'pertain[s] to the contract of insurance after the risk has attached and during the existence thereof'" (¶24). Applying the statute to conditions precedent would "make no sense" and impose an "impossible burden on insurers" (¶24). This construction was supported by the statute's plain language and legislative history.

    The court also found that the policy was not in effect at the time of Patrick's death because he had not yet submitted to the required blood test. "Were we to decide that unconditional interim insurance arises where an applicant pays a premium with his application but dies before fulfilling conditions precedent to coverage, insurers would either have to charge high rates to cover the risk of providing interim insurance or stop providing it altogether. As we have noted, applicants would have no incentive to actually get the required medical examinations or fulfill other required conditions of coverage if even the uninsurable were guaranteed coverage for some period of time before the insurability determination." (¶41)

    Chief Justice Abrahamson and Justice Bablitch filed concurring opinions that expressed their disagreement with the majority's approach to statutory construction.

    Environmental Damages - CGL Policies - CERCLA

    Johnson Controls Inc. v. Employers Insurance of Wausau, 2003 WI 108 (filed 11 July 2003)

    This case concerns the interplay of "key terms" in the standard comprehensive general liability (CGL) policy as it relates to environmental damages claims brought under the "Superfund" act (CERCLA). Most important, it addresses the "problems" created by City of Edgerton v. General Casualty Co. of Wisconsin, 184 Wis. 2d 750 (1994), in which a "divided court" held that the "issuance of letters by the EPA or the Wisconsin Department of Natural Resources (DNR), which either requested or directed an insured to participate in the environmental cleanup of contaminated property, did not constitute a 'suit' sufficient to trigger the insured's duty to defend." Furthermore, under Edgerton the cleanup and remediation costs were not covered under the CGL's indemnification provision for "sums that the insured may become legally obligated to pay as damages" (¶3).

    The supreme court, in a decision written by Justice Prosser, overruled the Edgerton decision. Its reasons for departing from the "principles of stare decisis" (¶101) are carefully explained at length in the opinion. At bottom, the "applicable rules of law established by Edgerton are not settled, much less settled correctly" (¶119). In Edgerton's place, the court now holds "that an insured's costs of restoring and remediating damaged property, whether the costs are based on remediation efforts by a third party (including the government) or are incurred directly by the insured, are covered damages under applicable CGL policies, provided that other policy exclusions do not apply. We also conclude that receipt of a potentially responsible party (PRP) letter from the EPA or an equivalent state agency, in the CERCLA context, marks the beginning of adversarial administrative legal proceedings that seek to impose liability upon an insured. A PRP letter significantly affects legal interests of the insured. Therefore, a reasonable insured would expect this letter to trigger its CGL insurer's duty to defend." (¶5)

    Justice Crooks concurred and expressed his "regret" that it took so long to resolve the difficulties created by Edgerton.

    Dissenting, Justice Wilcox, joined by Justice Bradley, argued that stare decisis did not warrant the overturning of Edgerton.

    Per-accident Limits - "Contextual Ambiguity"

    Folkman v. Quamme, 2003 WI 116 (filed 16 July 2003)

    Keith Folkman, age 17, was driving a car when it collided with another vehicle. Both drivers were at fault: Keith was speeding, and the other driver failed to yield the right of way. Also in Keith's car were his mother and brother, both of whom were seriously injured. The Folkmans' car was insured under a policy that carried a "split limit of liability" for bodily injury of $25,000 for "each person" and $50,000 for "each occurrence." The insurer tendered the $50,000 and asked to be dismissed from the case, but the Folkmans argued that the policy required the insurer to pay $125,000, calculated as follows: 1) Keith's liability to his mother and brother, 2) his mother's liability to her injured son as Keith's "sponsor," and 3) the father's liability to both his wife and injured son as sponsor. Each of these five claims carried $25,000 in coverage, according to the argument. The trial court denied the Folkmans' motion for a declaratory ruling and ordered that the insurer be dismissed upon payment of $50,000. The court of appeals reversed. It found the policy ambiguous and that its limits applied separately to each insured's liability in a single accident.

    The supreme court, in a decision written by Justice Prosser, reversed. The court set forth the principles that govern the interpretation of insurance contracts in light of Badger Mutual Ins. Co. v. Schmitz, 2002 WI 98. Since the principle of "contextual ambiguity" is "established precedent" (¶24), the issue was "what degree of contextual ambiguity is sufficient to engender an objectively reasonable alternative meaning and, thereby, disrupt an insurer's otherwise clear policy language?" (¶30) The court declined to award parties who "ferret" through policies to "dig up ambiguity." "[I]nconsistencies in the context of a policy must be material to the issue in dispute and be of such a nature that a reasonable insured would find an alternative meaning" (¶32). In this case the source of alleged ambiguity centered on the placement within the policy of the phrase, "This is the most we will pay." Closely parsing the policy's language, the court found no material ambiguity rooted in "contradictory language," but only "an unreasonable negative implication [competing] against clear text" (¶58).

    Finally, the Folkmans presented an array of alleged statutory violations based on the policy's limits language that purportedly rendered coverage illusory. The court disagreed, finding that the policy comported with the omnibus coverage statute, Wis. Stat. § 632.32(3)(b); the antistacking statute, Wis. Stat. § 632.32(5)(f); and the "other insurance" statute, Wis. Stat. § 631.43(1).

    Motor Vehicle Law

    OWI Sentencing Guidelines - Constitutionality

    State v. Jorgensen, 2003 WI 105 (filed 11 July 2003)

    The defendant was charged with operating while under the influence of an intoxicant (OWI) (Wis. Stat. § 346.63(1)(a)) and operating with a prohibited alcohol concentration (PAC) (Wis. Stat. § 346.63(1)(b)) as a fourth offender. Both charges arose out of a single act of driving. A jury found her guilty of both charges. The statute provides that in such circumstances there shall be a single conviction for purposes of sentencing. The defendant's judgment of conviction was entered on the OWI count. At sentencing, the judge explicitly referenced the OWI sentencing guidelines for the Fifth Judicial District,where the offense occurred, and sentenced the defendant. The defendant's postconviction challenge to the constitutionality of the sentencing guidelines was rejected by both the circuit court and the court of appeals. Among other things, she claimed that use of the guidelines violated her rights to due process and equal protection because they operate to increase disparity in sentencing based only upon the geographic location of the offense.

    In a majority decision authored by Justice Wilcox, the supreme court affirmed the court of appeals. It concluded that the sentencing guidelines established by the Fifth Judicial District (including their link of aggravating and mitigating factors to certain sentence ranges) are authorized by section 346.65(2m)(a), but that this statute only applies to the PAC offense - not the OWI offense of which the defendant was convicted. Nevertheless, because circuit courts have a great deal of sentencing discretion, the reference by the sentencing judge to the guidelines in this OWI case did not constitute error. It would, however, be inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in an OWI case.

    The court further concluded that the sentencing guidelines themselves are constitutional. Rejecting the defendant's attacks, it held that the guidelines are rationally related to a legitimate government interest. The court agreed that having different guidelines in the various judicial districts may lead to some disparity (which was the essence of the defendant's challenge) and "is not a perfect solution to the sentencing disparity problem" (¶ 39). However, under a rational basis test, it need not be a perfect solution. "By mandating the creation of guidelines within judicial districts, the statute attempts to reduce sentencing disparity within those districts. While statewide guidelines would perhaps be more equitable, there is no requirement the legislature choose the wisest or most effective means of reducing disparity" (¶ 39, quoting State v. Smart, 2002 WI App 240, ¶ 7).

    Lastly, the supreme court declined the defendant's request that it use its supervisory powers over the state courts to invalidate the guidelines.

    Chief Justice Abrahamson filed a dissenting opinion.

    Property

    Condemnation - Highways - Value

    National Auto Truckstops Inc. v. State of Wisconsin, 2003 WI 95 (filed 8 July 2003)

    This case concerns a relatively narrow question relating to changes in a controlled-access highway and the consequent damage suffered by a nearby truckstop. The supreme court, in a decision written by Justice Bablitch, concluded that the circuit court erred by excluding evidence relating to the truckstop's alleged damages from the change in access (¶22). It remanded the case for a jury to determine if the changed access is reasonable. If it is reasonable, the truckstop is not entitled to compensation. And if it is unreasonable, then the truckstop is entitled to compensation.

    The court also held that the truckstop was not entitled to use an "income approach" to valuation, because well-settled Wisconsin law "holds that income evidence is never admissible where there is evidence of comparable sales," as was the case here (¶25).

    Chief Justice Abrahamson concurred only in the conclusions reached in Justice Bablitch's opinion.

    Justice Sykes, joined by Justices Wilcox and Prosser, concurred in part and dissented in part. The dissent disagreed that the "'essential inquiry' in a partial takings case involving change of highway access is 'whether the change in access is reasonable'" (¶31).

    Sexually Violent Persons

    Petitions - Authority to File

    State v. Byers, 2003 WI 86 (filed 3 July 2003)

    The court of appeals affirmed a judgment and order committing Byers to a secure mental health facility as a sexually violent person under Wis. Stat. chapter 980. Byers contended that a district attorney lacks authority to file a chapter 980 petition unless the agency with jurisdiction has first requested the filing of a petition and the Department of Justice (DOJ) has declined (¶12).

    The supreme court, in a decision written by Justice Bradley, agreed with Byers and reversed the judgment. The issue was one of statutory construction. "Granted, there is nothing in the legislative history that directly articulates reasons for or against placing the agency with jurisdiction in a gatekeeper role that limits the district attorney's authority. However, the existence of these policy reasons supports the conclusion that such a broad gatekeeper role would be consistent with a legislative intent to create a step-by-step process that enhances the coordinated and efficient operation of Chapter 980" (¶42). In summary, the court held that "under § 980.02(1), a request from the agency with jurisdiction and a subsequent decision by the DOJ not to file are prerequisites to a district attorney's authority to file a Chapter 980 petition. Because those prerequisites were not met in this case, we determine that the petition was not properly filed." (¶43)

    Chief Justice Abrahamson, joined by Justice Bablitch, concurred and wrote separately to address remarks by Justice Crooks, in dissent, regarding statutory construction. Justice Bablitch also concurred in a separate opinion.

    Justice Crooks, joined by Justice Sykes, dissented because they disagreed with the majority's statutory analysis.

    Torts

    Emotional Distress - Bystanders' Claims - Medical Malpractice

    Finnegan v. Wisconsin Patients Comp. Fund, 2003 WI 98 (filed 8 July 2003)

    The Finnegans' infant son died of complications stemming from medical malpractice. Although the wrongful death claim was settled, the Finnegans pursued a claim for negligent infliction of emotional distress arising out of the malpractice. The defendants moved for summary judgment, but the trial judge ruled that Wis. Stat. chapter 655 "recognizes [Bowen v. Lumbermens Mut., 183 Wis. 2d 627 (1994)] claims for negligent infliction of emotional distress" and that Bowen itself did not preclude the claim (¶14). The court of appeals certified the same two questions to the supreme court: 1) Does chapter 655 permit the Finnegans' bystander mental distress claim and, if so, 2) does their claim comport with Bowen.

    The supreme court reversed. Justice Sykes authored the lead opinion, which summarized the splits among the justices as follows: "Three members of the court - Justice Wilcox, Justice Prosser and the author of this lead opinion - conclude that Chapter 655 does not permit bystander claims for negligent infliction of emotional distress in medical malpractice lawsuits. Two members of the court - Justice Bablitch and Justice Crooks - conclude that bystander claims for negligent infliction of emotional distress are derivative claims that fall within and are actionable under Chapter 655. One member of the court - Chief Justice Abrahamson - concludes that if a Bowen bystander claim is an independent cause of action, it can be brought outside Chapter 655. Justice Bradley takes no position on the statutory question, concluding instead that the second certified question is dispositive." (¶2)

    The court also split on the second issue in such a way that the "opinion" of the court is Part II of Chief Justice Abrahamson's concurring opinion. The court thus held that while the Finnegans could bring an emotional distress claim, the proof failed to meet Bowen's third element, namely that "the plaintiff must have observed an extraordinary event" (¶52). The parents "witnessed a prolonged and unsuccessful attempt to save their baby's life." Yet the "hallmark of negligent infliction of emotional distress is a contemporaneous sensory perception of a sudden, traumatic, injury-producing event." And "[i]n the present case, as in many cases, the failure to make the proper medical diagnosis is not an event that itself is perceived by a family member" (¶55). (On this second issue Justices Sykes, Wilcox, and Prosser joined in the lead opinion and in Part II of the Chief Justice's opinion, in which Justice Bradley also concurred. Justices Bablitch and Crooks dissented on grounds that the Bowen elements had been met.)

    Medical Malpractice - Statute of Limitation - Tolling Statute Governing the Mentally Ill

    Storm v. Legion Insurance Co., 2003 WI 120 (filed 18 July 2003)

    Wis. Stat. section 893.55(1) provides as follows: "Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission."

    Wis. Stat. section 893.16(1) provides: "If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years."

    Plaintiff Sheri Storm filed a medical malpractice suit alleging that psychiatric and psychological health care providers negligently treated her by using hypnosis to recover memories of childhood sexual abuse that were later found to be untrue. According to the plaintiff, these false memories formed the basis of a misdiagnosis of multiple personality disorder. Her last day of treatment was Aug. 3, 1992. She filed her lawsuit on Sept. 9, 1997.

    The health care providers asserted that the plaintiff's suit is time-barred under both the three-year statute of limitation in section 893.55(1)(a) and the five-year statute of repose in section 893.55(1)(b). The plaintiff argued that the statute of repose applies only to the discovery rule of accrual in paragraph (b) and is inapplicable to the injury rule of accrual in paragraph (a) upon which she relies. She also claimed that because she is mentally ill, her time to file under paragraph (a) may be extended up to five additional years by application of the general tolling provision in section 893.16. The circuit court held that the plaintiff's claim was time-barred and granted the defendants' motions for summary judgment. The court of appeals certified the case to the supreme court. In a unanimous decision authored by Justice Prosser, the supreme court reversed.

    The court first considered whether the five-year statute of repose in section 893.55(1)(b) applies to the injury rule of accrual in section 893.55(1)(a). Based on the plain language of section 893.55(1), it concluded that the five-year repose period in paragraph (b) of that subsection is limited to the discovery accrual rule in section 893.55(1)(b) and has no application to the injury accrual rule in section 893.55(1)(a).

    Next, the court considered whether any of the periods of limitation in section 893.55(1) can be extended by application of the disability tolling provisions in section 893.16(1). "We conclude that a person who is mentally ill at the time his or her cause of action for medical malpractice accrues under § 893.55(1)(a) may toll the limitations period under the strictures of § 893.16. We do not reach the issue of whether, or how, the tolling provisions in § 893.16 may extend the periods of limitation defined in § 893.55(1)(b), including its statute of repose" (¶ 4).

    Since section 893.16(1) may toll the period of limitation in section 893.55(1)(a), the court considered whether use of section 893.16(1) requires a factual finding that the plaintiff's mental illness caused him or her to fail to understand a claim so as to timely file it. "We conclude that such a finding is required. A mental illness for purposes of § 893.16 is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them. Because this determination is factual in nature and was not addressed by the circuit court, we remand this action to permit the submission of evidence regarding (1) whether Storm suffered from a functionally debilitating mental illness; (2) if she did, when such an illness commenced; (3) whether the illness ever ceased; and (4) if the illness ceased, when it ceased" (¶ 5).

    The court further held that neither the retention of legal counsel by a mentally ill person nor such counsel's filing of a claim on the mentally ill person's behalf causes, as a matter of law, that person's mental illness to cease for purposes of section 893.16. "[T]he filing of a lawsuit in behalf of a mentally ill person does not invariably establish a plaintiff's capacity to understand and act upon his or her legal rights. Nor is such a finding appropriate as a matter of law in this case. Rather, we believe that when an attorney acts on a plaintiff's behalf, as in filing a lawsuit, such an occurrence serves as one of the many possible indicia that the plaintiff's actual mental state is sufficient to appreciate the availability of her legal rights and her means of legal recourse.... It is for the trier of fact to determine if, under the circumstances of each case, such activity does or does not exhibit the requisite level of mental health" (¶ 64). One who claims mental illness under section 893.16(1) bears the burden of proving the condition by a preponderance of the evidence.

    In sum, the court concluded that, if Storm was mentally ill when her causes of action accrued against each defendant, and if her illness did not cease more than two years before she filed a claim against any of the individual defendants, then Storm timely filed her action alleging medical malpractice against the doctors.




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