Vol. 77, No. 3, March
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
Guilty Plea - Failure to Advise Defendant of Deportation
Consequences - Rule of Douangmala Not Retroactive on Collateral
Review of Conviction
State v. Lagundoye,
2004 WI 4 (filed 30 Jan. 2004)
Section 971.08 of the Wisconsin Statutes provides that, before a
court accepts a plea of guilty or no contest, it must advise the
defendant about the possibility of deportation consequences of the
conviction. The statute further provides that if the court fails to so
advise the defendant and the defendant later shows that the plea is
likely to result in his or her deportation, exclusion from admission to
this country, or denial of naturalization, the court on the defendant's
motion shall vacate any applicable judgment against the defendant and
permit the withdrawal of the plea.
The defendant entered guilty pleas to various felonies in 1997 and
1998. In none of those cases did the court comply with the mandates of
section 971.08. When the defendant entered his pleas, the law governing
the application of section 971.08 was controlled by State v.
Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993). The
Chavez court concluded that an appellate court should employ a
harmless error analysis when a defendant sought to withdraw his or her
plea based on a circuit court's failure to comply with section 971.08.
The defendant in this case (Lagundoye) did not seek plea withdrawal
under section 971.08 for any of his convictions.
In State v. Douangmala, 2002 WI 62, the supreme court
overruled the harmless error approach of Chavez and provided
for an automatic plea withdrawal if the conditions set forth in section
971.08(2) are met. Thereafter, Lagundoye moved to reopen and vacate his
conviction judgments, seeking to benefit from the newly announced rule
in Douangmala. The circuit court denied his motions seeking a
vacatur of the judgments rendered against him. The court of appeals
affirmed the circuit court.
In a majority decision authored by Justice Wilcox, the supreme court
affirmed the court of appeals. The issue before the supreme court was
whether the rule it announced in Douangmala can be applied
retroactively to a defendant who exhausted his direct appeal rights
before Douangmala was decided. The majority concluded that the
rule announced in Douangmala was a new rule of criminal
procedure that can be retroactively applied only to cases that were not
yet final when Douangmala was decided. The court further held
that the rule in Douangmala does not fall within either of two
narrow exceptions to the general rule of nonretroactivity and therefore
cannot be retroactively applied to collateral appeals such as the
defendant's. Accordingly, the court applied the harmless error approach
that existed when the defendant entered his pleas and concluded that the
error of the circuit court in failing to advise the defendant of
possible deportation consequences was harmless. Under Chavez
the failure to advise about deportation consequences constitutes
harmless error if the defendant was aware of the potential for
deportation when he entered his plea. The supreme court concluded that
it was clear from the record that the defendant did in fact know the
possible deportation consequences of his pleas when he entered them.
Justice Sykes did not participate in this decision.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Disqualified Ballots - Law of the Case
Roth v. LaFarge School Dist.
Bd. Canvassers, 2004 WI 6 (filed 4 Feb. 2004)
This case grew out of a 2000 referendum on proposed school
improvements. When the votes were counted, the vote was evenly divided
at 392 in favor and the same number against. By statute, Wis. Stat.
§ 5.01(4)(d), the tie vote resulted in the referendum's defeat.
When Roth, an elector, requested a recount, the result was also a tie,
but the Board Canvassers disallowed three votes on each side of the
issue. One "yes" ballot was disqualified because it bore the initials of
only one poll worker instead of the two required by statute. Roth
appealed the election result to the circuit court pursuant to Wis. Stat.
section 9.01(6). The judge ruled that the "yes" vote should have been
counted and also determined that another elector had failed to intervene
in a timely fashion to contest the disqualification of one "no" vote.
The court of appeals, however, reversed on the ground that the trial
court should have considered the "no" vote because the intervention had
been timely. Although it upheld the counting of the "yes" vote, the
court remanded for a determination of whether the "no" vote should also
The supreme court, in a decision authored by Justice Crooks,
affirmed. The court began by categorically rejecting Roth's argument
that the supreme court was bound by the "law of the case" doctrine based
on earlier decisions. It held that "'the law of the case doctrine is not
a rule to which this court is bound by any legislative enactment, nor is
it a rule to be inexorably followed in every case.' [Rather, the supreme
court retains the] discretion under these standards to review any
substantial and compelling issue which the case presents, regardless of
whether a prior decision established the law of the case" (¶
The court next addressed whether Wis. Stat. section 7.50(2)(c) was
correctly applied. Reviewing a series of ballot cases, the court
concluded that "Wisconsin's position on recognizing voter intent is
clear. It is evident that this court has consistently placed a premium
on giving effect to the will of the voter. Thus, we conclude that the
Board legally erred when it misapplied Wis. Stat. § 7.50(2)(c),
resulting in the disqualification of the 'no' vote. The Board may use
its discretion and make findings only when the standards of a statute do
not apply. By enacting § 7.50(2)(c), the legislature attempted to
minimize a board's discretion. Here, § 7.50(2)(c) applies, as there
is a qualifying mark in a qualifying place on the ballot at issue. We
conclude that with proper application of Wis. Stat. § 7.50(2)(c)
the intent of the voter becomes readily ascertainable in this case.
Section 7.50(2)(c) provides that a vote will be counted if a cross,
slash, or other mark similar to the eight examples listed in the statute
is present in a qualifying place on the ballot. An examination of the
ballot in question reveals that, at the very least, there is a slash
through the box to the right of the word 'no.' Pursuant to §
7.50(2)(c), the mark was made in a qualifying place on the ballot, as it
was placed in the box to the right of the word 'no.' Because there is a
qualifying mark in a qualifying place on the ballot, the vote should be
counted, so as to give effect to the will of the voter" (¶¶
Justice Bradley concurred but wrote separately to stress a standard
of review that had been "ignored."
CGL - "Property Damage" - "Occurrence" - "Economic Loss Doctrine" -
American Family Mut. Ins. Co.
v. American Girl Inc., 2004 WI 2 (filed 9 Jan. 2004)
This case concerns a "construction project gone awry" in which a new
building eventually was declared unsafe and demolished (¶ 3). The
main issues in the litigation involved insurance coverage for the
damages under a "post-1986" comprehensive general liability (CGL) policy
and an excess policy. Given the complexity of the issues, this summary
will focus on the supreme court's holdings; action by the lower court
will be described only as necessary to provide context.
The supreme court, in an opinion written by Justice Sykes, reversed
the court of appeals and remanded the matter. The "threshold question"
was whether "the claim at issue here is for 'property damage' caused by
an 'occurrence' within the meaning of the CGL policies' general grant of
coverage." The court held that coverage existed because the "CGL
policies define 'property damage' as 'physical injury to tangible
property.' The sinking, buckling, and cracking of the warehouse was
plainly 'physical injury to tangible property.' An 'occurrence' is
defined as 'an accident, including continuous or repeated exposure to
substantially the same general harmful condition.' The damage to the
warehouse was caused by substantial soil settlement underneath the
completed building, which occurred because of the faulty
site-preparation advice of the soil engineering subcontractor. It was
accidental, not intentional or anticipated, and it involved the
'continuous or repeated exposure' to the 'same general harmful
condition.' Accordingly, there was 'property damage' caused by an
'occurrence' within the meaning of the CGL policies" (¶ 5).
Second, the supreme court held that "the economic loss doctrine does
not preclude coverage. ... That the property damage at issue here is
actionable in contract but not in tort does not make it 'non-accidental'
or otherwise remove it from the CGL's definition of 'occurrence'"
(¶ 6). Indeed, the supreme court has never "held that the CGL
insuring agreement only covers torts" (¶ 44). (The court discusses
pertinent authority and "caution[ed]" that several cases should not be
read "for the conclusion that a loss actionable in contract rather than
tort can never constitute a covered 'occurrence' under a CGL policy"
The court next addressed the policies' exclusions. "[B]ecause the
property damage at issue here was neither expected nor intended, the
'expected or intended' exclusion does not apply" (¶ 7). "The
'contractually-assumed liability' exclusion (upon which the court of
appeals rested its no-coverage conclusion) eliminates coverage for
damages the insured is obligated to pay 'by reason of the assumption of
liability in a contract or agreement.' We conclude that this language
does not exclude coverage for all breach of contract liability. Rather,
it excludes coverage for liability that arises because the insured has
contractually assumed the liability of another, as in an indemnification
or hold harmless agreement. There is no indemnification or hold harmless
agreement at issue here, so this exclusion does not apply" (¶
The court also held "that while the 'business risk' or 'your work'
exclusions ordinarily would operate to exclude coverage under the
circumstances of this case, the 'subcontractor' exception applies here.
The subcontractor exception to the business risk exclusion restores
coverage if 'the work out of which the damage arises' was performed by a
subcontractor" (¶ 9). Furthermore, it held that "the 'professional
services liability' exclusion in the excess policies applies under the
circumstances of this case. And finally, coverage under the policies
issued after the property damage loss was substantially known to the
parties [was] barred by the 'known loss' doctrine" (¶ 10).
Chief Justice Abrahamson and Justice Wilcox did not participate.
Justice Crooks, joined by Justice Roggensack, dissented; his dissent
primarily addresses the economic loss doctrine. Justice Roggensack also
filed a separate dissent (joined by Justice Crooks), which concluded
that there was no covered "occurrence" under this policy.
Supervised Release - District Attorneys
State v. Morford,
2004 WI 5 (filed 3 Feb. 2004)
This case involves whether "Wis. Stat. § 806.07(1)(h) or
980.08(6m) is the vehicle for changing the supervised release status for
an individual who, like [Respondent] Morford, has been determined to be
appropriate for supervised release but who remains institutionalized
awaiting placement" (¶ 4). For the fourth time since 1996 the court
was called upon to address "in a published case the appropriate
procedure for reconsidering a chapter 980 committee's supervised
release" (¶ 10). Although the record presented a "mootness" issue
(Morford was since placed on supervised release), the court concluded
that the issue was likely to arise again and should be reviewed.
Writing for the court, Chief Justice Abrahamson declared the
following rights. "First, ... the text of Wis. Stat. § 980.08(6m)
can be read to support the notion that if a [person committed under]
chapter 980 is awaiting placement on supervised release and continues to
be held in a secure facility, the department may petition for revocation
of a determination of supervised release. Second, Wis. Stat. §
980.08(6m) provides a comprehensive scheme for releasing chapter 980
committees on supervised release and for revoking supervised release. By
effectively occupying the field on the subject, the legislature
implicitly sought to preclude procedural short-cuts like the one
provided by § 806.07(1)(h). ... Third, using Wis. Stat. §
806.07(1)(h) to grant the state relief from supervised release presents
far more tortuous interpretive issues than reading § 980.08(6m) as
governing the present case. Individuals committed under chapter 980 are
entitled to due process protections such as reasonable notice, the right
to counsel, the right to remain silent, the right to present and
cross-examine witnesses, and the use of the heightened burden of proof
of clear and convincing evidence. Section 806.07(1)(h) does not provide
these protections" (¶¶ 43-45). Fourth, the court was also
concerned that "engrafting" chapter 980 onto Wis. Stat. section
806.07(1) promised only troublesome "future litigation" (¶ 48).
"Fifth, allowing a circuit court or district attorney to initiate
proceedings on their own motion using Wis. Stat. § 806.07(1)(h) to
grant the state relief from supervised release is inappropriate because
it circumvents the important gate-keeping function of the Department of
Health and Family Services" (¶ 52).
In conclusion, the court held that "Wis. Stat. § 980.08(6m),
rather than § 806.07(1)(h), governs granting relief to the state
from a chapter 980 committee's supervised release when the committee is
confined in an institution awaiting placement on supervised release. Any
language or inference in State v. Castillo, State v. Williams,
or State v. Sprosty, limiting the application of §
980.08(6m) to situations in which a chapter 980 committee has actually
been released into the community under supervised release, is withdrawn"
(¶ 56) (citations omitted).
Justice Crooks, joined by Justices Wilcox and Roggensack, concurred
but wrote separately because "Wis. Stat. § 806.07(1)(h) was used
appropriately here to consider a person's supervised release status when
that person has not as yet been released" (¶ 57).