Vol. 76, No. 9, September
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
Full Faith and Credit - Tribal Judgments
Teague v. Bad River Band of
Lake Superior Tribe of Chippewa Indians, 2003 WI 118 (filed 17
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
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
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
Justices Wilcox and Prosser filed separate dissenting opinions.
Antitrust - Predatory Pricing
Conley Publishing Group Ltd.
v. Journal Communications Inc., 2003 WI 119 (filed 17 July
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
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
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
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
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
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
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
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
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
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
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
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 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"
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
Postconviction Relief - Imperfect Self-defense -
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
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
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
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
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).
Whistleblower Law - Disclosure of Information Involving
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.
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.
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..."
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"
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
Termination of Parental Rights - Personal Jurisdiction Over
Out-of-state Respondent - Uniform Child Custody Jurisdiction
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
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"
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
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
Repair Costs - Subrogation - Collateral Source
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
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
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
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,
Lastly, the supreme court declined the defendant's request that it
use its supervisory powers over the state courts to invalidate the
Chief Justice Abrahamson filed a dissenting opinion.
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).
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."
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
Justice Crooks, joined by Justice Sykes, dissented because they
disagreed with the majority's statutory analysis.
Emotional Distress - Bystanders' Claims -
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."
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
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
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.