Vol. 77, No. 6, June
2003 Significant Court Decisions
In his annual feature, the author highlights what he believes are
significant Wisconsin Supreme Court and Court of Appeals decisions for
the year 2003.
by Daniel W. Hildebrand
This year the Wisconsin Supreme Court had its first opportunity to
interpret Wisconsin's new constitutional right to "keep and bear arms."
The amendment provides that "the people have the right to keep and bear
arms for security, defense, hunting, recreation or any other lawful
purpose."1 In State v. Hamdan,2 Hamdan owned and operated a grocery and liquor
store located in a high-crime neighborhood. The store had been the
target of four armed robberies, three of which were successful, and the
site of two fatal shootings. As a result, Hamdan kept a handgun under
the store's front counter next to the cash register during store hours.
Police officers visited Hamdan one evening explaining they were
conducting a license check. During the ensuing conversation, one of the
officers asked Hamdan if he kept a gun in the store and, if so, where it
was located. Hamdan answered affirmatively and pulled the wrapped gun
from his trousers. Hamdan was later charged with carrying a concealed
weapon in violation of Wis. Stat. section 941.23 and was
The court held that the concealed weapon statute was unconstitutional
as applied to Hamdan. The constitutional amendment does not establish an
unfettered right to bear arms. The state retains the power to impose
reasonable regulations on weapons, including a general prohibition on
the carrying of concealed weapons. However, the state may not apply
these regulations in situations that functionally disallow the exercise
of rights conferred under article I, section 25. The state must be
especially vigilant in circumstances in which a person's need to
exercise the right is most pronounced.
Application of the concealed weapon statute in instances in which the
public interest in enforcing the statute is weak may unconstitutionally
impair a person's right to keep and bear arms when that person's
interest in exercising that right through the use of a concealed weapon
is substantial. Here, Hamdan kept a concealed weapon for purposes of
security, a substantial interest when undertaken to secure a home or a
privately owned business. Conversely, the state's interest in
prohibiting concealed weapons is least compelling in these circumstances
because application of the statute has only a tenuous relation to the
alleviation of the state's acknowledged interests in enforcing the
statute. Hamdan exercised his rights under circumstances in which he had
a substantial need to do so. He had a grocery store in a high-crime
neighborhood. The store had previously been the site of robberies and
homicides. Hamdan himself had been a crime victim. He had concerns not
only for himself but for his family and customers. He had good reason to
anticipate additional crime problems at the store and to provide his own
security to deal with those problems. Furthermore, Hamdan had no
reasonable means of keeping and handling the weapon in his store except
to conceal it. It would have been dangerous and counterproductive to
openly display the weapon during business hours and requiring him to do
so would have seriously impaired his right to bear arms for
Chief Justice Abrahamson dissented, concluding that Wis. Stat.
section 941.23, which prohibits people from going armed with a
concealed weapon, is constitutional as written and as applied. The court
should not rewrite the statute to include exceptions for owners of
privately operated businesses and persons in their private residences.
If the statute is too broad, needing exceptions to render it
constitutional, the court should strike the statute down and allow the
legislature to enact a more narrow prohibition. Justice Crooks also
dissented, concluding that enactment of the amendment made the concealed
weapon statute unconstitutional because it has become unnecessarily
broad and provides no exceptions as it is written.
In State v.
Cole,3 Cole was carrying a
concealed weapon while he was a passenger in a vehicle. He also was
carrying marijuana. In upholding the statute as applied to Cole, the
supreme court rejected Cole's argument that strict scrutiny or
intermediate scrutiny is required. There is no absolute right to bear
arms. Such a right, although fundamental, is subject to reasonable
restriction. The concealed weapon statute is not effectively repealed by
the right to bear arms amendment. Ordinarily, prohibitions in the
concealed weapon statute constitute a reasonable time, place, and manner
restriction upon the right to bear arms, which is not rendered illusory
by prohibiting an individual from keeping a loaded weapon hidden either
in the glove compartment or under the front seat of a vehicle.
In State v.
Meeks,4 the supreme court 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. section 905.03(2)
and SCR 20:1.6. Meeks had been charged with felony murder as a habitual
criminal. His counsel first raised the issue of Meeks' competency after
his initial appearance. The trial court initially determined that Meeks
was not competent and committed him to the Department of Health and
Family Services for treatment. After Meeks received treatment, the trial
court determined that he was then competent to proceed. The trial court
relied on testimony from physicians, a parole agent, and a public
defender who previously represented Meeks. The state had subpoenaed
Meeks' former attorney to testify. She testified she had represented
Meeks on several occasions and testified as her practices raised
competency issues before the court. Among other things, she clearly
offered her opinions, perceptions, and impressions concerning Meeks'
The court held that Meeks was entitled to assert the attorney-client
privilege pursuant to Wis. Stat. section 905.03. Only the client
can waive privilege. There is nothing in the record to indicate that
Meeks consented to the testimony or in any way waived the
attorney-client privilege. Although there is a split of authority in
other states, the court held that an attorney's opinions, perceptions,
and impressions of a client's competency to proceed are protected. The
testimony regarding Meeks' mental competency did not involve facts
observable by just anyone but necessarily involved the entire
confidential conference setting, as well as the revelation of
information conveyed to that attorney through private confidential
conversations with Meeks. Furthermore, under SCR 20:1.6, the
confidentiality rule applies to all information relating to the
representation, whatever its source. A lawyer may not properly disclose
such information unless the client consents after consultation, other
than as provided in exceptions to that rule not applicable here.
Justices Sykes and Prosser dissented. The prosecutor indicated that
he did not intend to question Meeks' former attorney regarding any
privileged attorney-client communications, but rather would be pursuing
a more general line of questioning. Meeks' counsel objected to the
testimony on relevance grounds. The testimony of the former attorney was
very general; it concerned her background, training, and experience,
including representation of approximately 3,000 defendants, among them
persons with mental health problems. She was never asked nor did she
offer any testimony about her opinions, perceptions, and impressions
about Meeks' mental competence. Nor was she ever asked about nor did she
reveal any confidential communications regarding her former client.
Torts - Economic Loss Doctrine
In Digicorp Inc. v. Ameritech
Corp.,5 the supreme court held that
Wisconsin recognizes a narrow fraud in the inducement exception to the
economic loss doctrine. Douglas-Hanson Co. v. B.F. Goodrich
Co.,6 a prior court of appeals
decision that was affirmed by the supreme court on a tie vote, opined
that fraud in the inducement was always an exception to the economic
loss doctrine. However, in Digicorp the court held, consistent
with Huron Tool & Engineering Co. v. Precision Consulting
Services Inc.,7 that the economic loss
doctrine acts as a bar when fraud in the inducement is interwoven with
the contract involving matters for which risks and responsibilities were
addressed. Such matters must not be extraneous to the contract. Justices
Crooks and Prosser rejected the broad exception that the court of
appeals adopted in Douglas-Hanson, opining that the Huron
Tool test was correct. In this case, the subject of the alleged
misrepresentation did not involve the service subject to the contract
but dealt with the responsibility and risk of a certain employee. These
risks and responsibilities were interwoven into the contract.
Justice Sykes, concurring, would not adopt any fraud in the
inducement exception to the economic loss doctrine. She argued that the
doctrine should preclude commercial, contracting parties from recovering
tort damages for purely economic losses associated with a contractual
relationship. Justices Bradley and Bablitch dissented. They would have
followed the court of appeals decision in Douglas-Hanson, which
holds that the economic loss doctrine does not preclude a plaintiff's
claim for intentional misrepresentation that fraudulently induces a
plaintiff to enter into the contract. Chief Justice Abrahamson and
Justice Wilcox did not participate.
In Johnson Controls Inc. v.
Employers Insurance of Wausau,8 the
supreme court held that an insured's costs of restoring and remediating
damaged property, whether the costs are based on remediation efforts of
a third party (including the government) or are incurred directly by the
insured, are covered damages under applicable comprehensive general
liability (CGL) policies, overruling City of Edgerton v. General
Casualty Co. of Wisconsin.9 The court
overruled Edgerton because problems with that decision have
become so obvious and so acute that they cannot be ignored.
In this case, Johnson Controls sought coverage for cleanup costs it
incurred in complying with a presuit demand from a federal agency, a
state agency, or a nongovernment third party to remediate the sites in
accordance with the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), popularly known as "Superfund." Johnson
Controls alleged that in every instance it promptly notified its CGL
insurer or insurers of the liability claims and requested the insurer to
indemnify it for cleanup costs. The insurers refused. The insurance
contracts required the insurer to pay on behalf of the insured all sums
that the insured shall become legally obligated to pay as damages
because of property damage to which the policy applies caused by an
In overruling Edgerton, the court held that clean-up costs
were "damages" under the policies, rejecting the insurers' argument that
clean-up costs were relief in the form of restitution or an injunction
through administrative orders. The court held that response costs are
"damages" from the perspective of an ordinary insured because the law
imposes costs on the insured to remediate property that the insured
previously damaged. The Edgerton opinion was too quick to
embrace the strict dichotomy between legal damages and equitable
actions. Furthermore, it did not make any sense to make the
determination of whether "damages" arose be dependent on whether the
party bringing a legal action was a governmental agency or some other
Justices Wilcox and Bradley dissented. They argued that the principle
of stare decisis applies, and that courts and numerous private parties
relied on the now-overruled Edgerton decision. Nothing has
changed. The insurance policy language has not changed nor has CERCLA
changed. Insurance is one of the most heavily regulated businesses in
the state. The legislature could have but did not act to change the rule
of Edgerton. The effect of overruling Edgerton is to
subject a group of similarly situated litigants to two different rules
of law based merely on when they litigated their disputes. This result
runs contrary to the basic principles of justice in a free society.
Torts - Immunities
In Scott v. Savers Property
& Casualty Insurance Co.,10
the supreme court applied Wisconsin's governmental immunity
statute11 to dismiss a negligence complaint
against a high school guidance counselor. Scott and his parents alleged
that the counselor provided them with inaccurate information about
National Collegiate Athletic Association (NCAA) scholarship eligibility
requirements. As a result, Scott lost a hockey scholarship to the
University of Alaska. The court also held that there was no enforceable
contract created when the guidance counselor agreed to assist Scott in
selecting classes approved by the NCAA.
Wis. Stat. section 893.80(4) provides that no suit may be
brought against a governmental subdivision for acts done in the exercise
of legislative, quasi-legislative, judicial, or quasi-judicial
functions. Such functions are those that involve the exercise of
"discretion" as opposed to ministerial duties imposed by law. The court
held that the guidance counselor's recommendations did not fall within
the ministerial duty or professional discretion exceptions to immunity.
The provision of guidance services is inherently discretionary because
the statutes and regulations do not impose, proscribe, and define the
time, mode, and occasion for the performance. Neither the statute nor
the regulations create a duty that is absolute, certain, and imperative
with respect to counseling or providing information about NCAA
requirements. The professional discretion exception does not apply to a
Justice Prosser dissented. He argued that the decision was
inconsistent with Holytz v. City of Milwaukee,12 a decision in which an unanimous court attacked
and belittled the doctrine of governmental immunity. The legislature is
not responsible for reenactment of governmental immunity. Rather, the
court was responsible for several decades of back-sliding that produced
the Scott opinion. The result is profoundly wrong and unjust
and is contrary to legislative intent.
1Wis. Const. art. I,
22003 WI 113, 264 Wis. 2d 433,
665 N.W.2d 785.
32003 WI 112, 264 Wis. 2d 520,
665 N.W.2d 328.
42003 WI 104, 263 Wis. 2d 794,
666 N.W.2d 859.
52003 WI 54, 262 Wis. 2d 32,
662 N.W.2d 652.
6 229 Wis. 2d 132, 598 N.W.2d
262 (Ct. App. 1999), aff'd, 2002 WI 22, 233 Wis. 2d 276,
607 N.W.2d 621.
7209 Mich. App. 365, 532 N.W.2d 541
82003 WI 108, 264 Wis. 2d 60,
665 N.W.2d 257.
9184 Wis. 2d 750, 517 N.W.2d
463 (1994), cert. denied, 514 U.S. 1017 (1995).
102003 WI 60, 262 Wis. 2d
127, 663 N.W.2d 715.
1217 Wis. 2d 26, 115 N.W.2d
Other Significant Cases
Space does not permit a more complete
discussion, but the holding of these other informative cases are
Daniel W. Hildebrand is a shareholder
of DeWitt Ross & Stevens S.C., Madison. He is a former president of
the Dane County Bar Association and the State Bar of Wisconsin. He is a
member of the ABA Standing Committee on Ethics and Professional
Responsibility and is a member of the ABA Board of Governors. He also is
a member of the American Academy of Appellate Lawyers and has a
substantial appellate practice.
Wagner v. Milwaukee County
Election Comm'n, 2003 WI 103, 263 Wis. 2d 709, 666 N.W.2d
816 (Wis. Const., art. VII, § 10(1) disqualifies judge from
serving in nonjudicial offices during term for which he or she was
State v. Jorgensen,
2003 WI 105, 264 Wis. 2d 157, 667 N.W.2d 318 (constitutionality of
sentencing guidelines upheld).
Trinity Evangelical Lutheran
Church & School-Freistadt v. Tower Ins. Co., 2003 WI 46,
261 Wis. 2d 333, 661 N.W.2d 789 (punitive damages awarded for bad faith
denial of coverage).
Alvarado v. Sersch,
2003 WI 55, 262 Wis. 2d 74, 662 N.W.2d 350 (summary judgment based on
public policy factors should not have been granted in a negligence
Pachowitz v. LeDoux,
2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88 ("publicity"
element of right of privacy tort may be based on disclosure to one
Bicknese v. Sutula,
2003 WI 31, 260 Wis. 2d 713, 660 N.W.2d 289 (public officer
immunity does not apply to promissory estoppel).
State v. Thiel, 2003
WI 111, 264 Wis. 2d 571, 665 N.W.2d 305 (ineffective assistance of
Tammie J.C. v. Robert
T.R., 2003 WI 61, 262 Wis. 2d 217, 663 N.W.2d 734 (termination
of parental rights when terminated parent had no contact with
Dumler, 2003 WI 62, 262 Wis. 2d 292, 664 N.W.2d 525 (child
support reduction based on incarceration).
Sulzer v. Diedrich,
2003 WI 90, 263 Wis. 2d 496, 664 N.W.2d 641 (constructive trust
arising out of mistake).
O'Connor, 2003 WI App 46, 260 Wis. 2d 323, 660 N.W.2d 1
(banishment order upheld for repeat violation of no-harassment
Klauser v. Schmitz,
2003 WI App 157, 265 Wis. 2d 860, 667 N.W.2d 862 (personal
representative's conflict is not "good cause" to disqualify).
Mount Horeb Cmty. Alert v.
Village Bd., 2003 WI 100, 263 Wis. 2d 544, 665 N.W.2d 229
(requisites for direct legislation).
Sauk County v.
Gumz, 2003 WI App 165, 266 Wis. 2d 758, 669 N.W.2d 509
(ordinance requiring permit for "Weedstock" unconstitutional).
Marjorie A.G. v. Dodge
County Dep't of Human Servs., 2003 WI App 52, 261 Wis. 2d
679, 659 N.W.2d 438 (transfer of ward's property to Medicaid payback
Columbus Park Housing Corp.
v. City of Kenosha, 2003 WI 143, 267 Wis. 2d 59, 671
N.W.2d 633 (property leased to low-income persons not exempt from real
Hutson v. State Personnel
Comm'n, 2003 WI 97, 263 Wis. 2d 612, 665 N.W.2d 212
(construction of whistle-blower statute).
State v. Williams,
2003 WI App 116, 265 Wis. 2d 229, 666 N.W.2d 58 (judge may not
participate in plea bargaining).
State v. Picotte,
2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381 (year-and-a-day rule for
murder cases rejected).
State v. Lo, 2003 WI
107, 264 Wis. 2d 1, 665 N.W.2d 756 (retroactive application of new
rule on collateral review).
State ex rel. Marberry v.
Macht, 2003 WI 79, 262 Wis. 2d 720, 665 N.W.2d 155 (habeas
corpus requirements applied to sex offenders).
State v. Church,
2003 WI 74, 262 Wis. 2d 678, 665 N.W.2d 141 (increased sentence after
State v. Radke, 2003
WI 7, 259 Wis. 2d 13, 657 N.W.2d 66 (constitutionality of "two
strikes" law for sex offenders, Wis. Stat. § 939.62(2m)(a)1m.,
State v. Navarro,
2003 WI App 50, 260 Wis. 2d 861, 659 N.W.2d 487 (right of detained
foreign national to consult with consular officials).