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    Supreme Court Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 77, No. 8, August 2004

    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

    * *

    Appellate Procedure

    Time Limit for Filing an Appeal - Final Order or Judgment

    Harder v. Pfitzinger, 2004 WI 102 (filed 7 July 2004)

    In this litigation all defendants brought summary judgment motions seeking dismissal. The circuit court granted the motions and signed a document labeled "Order for Judgment" that was entered the same day. The order dismissed all claims against all defendants with prejudice and with costs and also provided that "the entire action is hereby dismissed with prejudice." Several weeks later one of the defendants sent a document captioned "Judgment" to the clerk for her signature and for filing, together with a bill of costs. The judgment was signed and entered by the clerk when costs were taxed; it addressed no substantive issues. The issue on appeal was whether the time for filing an appeal began to run on the date the "Order for Judgment" was entered or when the later "Judgment" was entered. If it was the former, then the plaintiffs' appeal was untimely filed.

    Wis. Stat. section 808.03(1) provides in relevant part as follows: "Appeals as of right. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding...."

    In an unanimous decision authored by Justice Roggensack, the supreme court noted that its prior decisions "have interpreted the phrase, 'disposes of the entire matter in litigation' set out in Wis. Stat. § 808.03(1), as having two components: (1) whether the document is final in the sense of substantive law in that it disposes of all of the claims brought in the litigation as to one or more of the parties; and (2) whether the document is final in the sense that it is the last document that the circuit court intended to issue in the litigation. We have also concluded that an order may be final and appealable notwithstanding subsequent actions taken in the circuit court" (¶ 12) (citations omitted).

    In order to clarify its past decisions in regard to determining when a document is final for purposes of section 808.03(1), the court held that "when a circuit court enters an order or a judgment that decides all substantive issues as to one or more parties, as a matter of law, the circuit court intended that to be the final document for purposes of appeal, notwithstanding subsequent actions by the circuit court or the label the document bears" (¶ 15). In this case, because the earlier "Order for Judgment" decided all substantive issues as to one or more parties, the supreme court concluded that the circuit judge intended that order to be the final document for purposes of appeal, even though it was not the final document in the circuit court file. After it was entered, the only task that remained was the determination of the amount of costs, which is generally a function of the clerk of court that does not involve further decision making by the judge.

    The court stressed the desirability of drafting the final document - be it an order or judgment - to specifically state that it is intended to be the final document in the litigation for purposes of appeal. "However, even if it does not so state, we will conclude, as a matter of law, that the circuit court intended it to be the final document for purposes of appeal when it decides all substantive issues as to one or more parties, notwithstanding the label it bears or subsequent actions taken by the circuit court" (¶ 18).

    Justice Sykes did not participate in this case.

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    Attorneys

    Ethics - Perjury - Criminal Defendants

    State v. McDowell, 2004 WI 70 (filed 11 June 2004)

    A jury convicted the defendant of sexual assault, kidnapping, and robbery. On appeal the defendant argued that he had been denied effective assistance of counsel because of the role played by his attorney during the defendant's testimony. Specifically, trial counsel shifted to "narrative" questioning instead of the traditional "Q&A" because he concluded that the defendant was lying on the stand. The court of appeals affirmed his conviction.

    The supreme court, in an opinion written by Justice Bradley, affirmed the court of appeals in an opinion that instructs lawyers how to handle client perjury in criminal cases. The court held that "an attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. While [the court] recognize[d] that the defendant's admission need not be phrased in 'magic words,' it must be unambiguous and directly made to the attorney" (¶ 43). When a defendant advises counsel that he or she intends to testify falsely, counsel's "first duty shall be 'to attempt to dissuade the client from the unlawful course of conduct'" (¶ 45). Counsel may also consider withdrawing from representation.

    If counsel elects to proceed, or if a motion to withdraw is denied, counsel should proceed with narrative questioning but not before advising "opposing counsel and the circuit court of the changes of questioning style prior to the use of the narrative. Courts, in turn, shall be required to examine both counsel and the defendant and make a record of the following: '(1) the basis for counsel's conclusion that the defendant intends to testify falsely; (2) the defendant's understanding of the right to testify, notwithstanding the intent to testify falsely; and (3) the defendant's, and counsel's, understanding of the nature and limitations of the narrative questioning that will result'" (¶ 48).

    On the record before it, the court held that the defendant's lawyer had been deficient in two ways: he shifted to narrative questioning without advising the defendant beforehand, and he did so with the belief that the defendant nonetheless intended to testify truthfully. Despite counsel's "deficiency," no prejudice flowed from it. See ¶ 4.

    Justice Roggensack concurred in a separate opinion that urged that counsel's knowledge of a client's intent to testify falsely may be based on "objective uncontradicted facts" and that cautioned lawyers not to "passively facilitate" the client's perjury (¶ 80).

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    Courts

    Subject Matter Jurisdiction - Competency of Courts to Proceed - Waiver of Competency Objection

    Village of Trempealeau v. Mikrut, 2004 WI 79 (filed 16 June 2004)

    The defendant was convicted of numerous municipal ordinance violations. His convictions were affirmed on appeal. Seventeen months after being convicted and more than six months after the judgments were affirmed on appeal, the defendant moved to vacate the judgments, raising for the first time issues relating to defects in the issuance of the underlying citations and the impact of these defects on the trial court's competency to proceed. The circuit court denied the motion, concluding that the defendant had waived the issue of the court's competency by failing to raise it at trial or on direct appeal. The court of appeals affirmed. In a majority decision authored by Justice Sykes, the supreme court affirmed the court of appeals.

    The court began its opinion by reviewing important precepts about subject matter jurisdiction and competency to proceed. "Circuit courts in Wisconsin are constitutional courts with general original subject matter jurisdiction over 'all matters civil and criminal.' Wis. Const. art. VII, § 8. Accordingly, a circuit court is never without subject matter jurisdiction. A circuit court's ability to exercise its subject matter jurisdiction in individual cases, however, may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction. The failure to comply with these statutory conditions does not negate subject matter jurisdiction but may under certain circumstances affect the circuit court's competency to proceed to judgment in the particular case before the court. A judgment rendered under these circumstances may be erroneous or invalid because of the circuit court's loss of competency but is not void for lack of subject matter jurisdiction" (¶¶ 1-2).

    Having reviewed these principles, the court proceeded to the issue in this case, which was whether a challenge to the circuit court's competency may be waived if it is not first raised in the original circuit court action. The court concluded that "because competency does not equate to subject matter jurisdiction, a challenge to the circuit court's competency is waived if not raised in the circuit court. The waiver rule is a rule of judicial administration, and therefore a reviewing court has the inherent authority to disregard a waiver and address the merits of an unpreserved argument. In addition, Wis. Stat. §§ 751.06 and 752.35 may allow discretionary appellate review of waived issues in extraordinary circumstances, and Wis. Stat. § 806.07(1) may provide an avenue for obtaining collateral relief from judgment on the basis of a waived argument if adequate grounds for relief can be established and the statute's time limitations have been met" (¶ 3).

    In a footnote the court "emphasize[d] that the waiver issue presented here is distinct from statutory pleading waiver rules. It is also distinct from the case law pertaining to pleading waiver rules as applied to competency challenges premised upon noncompliance with statutory governmental notice of claim requirements. Finally, the waiver issue here is also distinct from the estoppel case law, which sometimes uses the terminology of waiver" (¶ 3 n.1).

    Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley. Justice Wilcox did not participate in this case.

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    Criminal Law

    Mistake Defense - Sexual Assault - Minors

    State v. Jadowski, 2004 WI 68 (filed 10 June 2004)

    The defendant, an adult, was charged with having sexual intercourse with a person under age 16, contrary to Wis. Stat. section 948.02(2). The victim was about five months shy of her 16th birthday at the time of the offense. In a pretrial hearing, the judge ruled that the defense could offer evidence that the victim had "fraudulently" misled the defendant into believing she was 19 years old. (For example, she showed him an identification card with her age). The state appealed and the court of appeals certified this issue of first impression to the supreme court.

    The supreme court, in an opinion authored by Chief Justice Abrahamson, reversed the circuit court. The offense charged has just two elements: 1) sexual intercourse 2) with a person under age 16. Construing the pertinent "mistake" statutes, the court rejected an affirmative defense of mistake: "the sexual assault statute in the case at bar read in conjunction with Wis. Stat. §939.23(6) does not require an actor to know the victim's age and does not set forth an actor's reasonable (but erroneous) belief about the victim's age as a defense" (¶ 17).

    The court also rejected the defendant's related argument that a victim's fraud constitutes an affirmative defense; neither the statutes nor public policy justify "engrafting" such a defense onto a sexual assault offense (¶ 21). Indeed, "engrafting the defendant's proposed defense onto the statute undermines the policy of protecting minors from sexual abuse and would raise practical law enforcement problems" because "[a]ge is difficult to ascertain, and actors could often reasonably claim that they believed their victims were adults" (¶ 25). And since neither "mistake" nor "fraud" is a defense, the proffered evidence, including the victim's alleged misrepresentations, was inadmissible (¶ 31).

    The court also rejected the argument that the statutes, as construed, contravened the Fourteenth Amendment on grounds of vagueness, overbreadth, and due process.

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    Criminal Procedure

    Postconviction Motions - Sufficiency of Motion Requesting Evidentiary Hearing

    State v. Allen, 2004 WI 106 (filed 8 July 2004)

    In this unanimous opinion authored by Justice Roggensack, the supreme court analyzed the requirements of a postconviction motion in which the movant requests an evidentiary hearing. "[T]he circuit court must hold a hearing when the defendant has made a legally sufficient postconviction motion, and [it] has the discretion to grant or deny an evidentiary hearing even when the postconviction motion is legally insufficient. The circuit court may deny a postconviction motion for a hearing if all the facts alleged in the motion, assuming them to be true, do not entitle the movant to relief; if one or more key factual allegations in the motion are conclusory; or if the record conclusively demonstrates that the movant is not entitled to relief. We discuss below what makes a postconviction motion legally sufficient...." (¶ 12) (citations omitted). [In a footnote the court observed that if the allegations in the motion are assumed to be true, yet seem to be questionable in their believability, the circuit court must hold a hearing. See ¶ 12 n.6.]

    The court reiterated the principle from State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), that a hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle him or her to relief. "As an assistance to defendants and their counsel, we propose that postconviction motions sufficient to meet the Bentley standard allege the five 'w's' and one 'h'; that is, who, what, where, when, why, and how. A motion that alleges, within the four corners of the document itself, the kind of material factual objectivity we describe above will necessarily include sufficient material facts for reviewing courts to meaningfully assess a defendant's claim" (¶ 23).

    The court provided the following illustrations of insufficient and sufficient allegations. "For example, an insufficient statement that does not allow the court to meaningfully assess a defendant's claim might be an assertion that trial counsel did not adequately prepare for trial. This assertion is the defendant's opinion only, and it does not allege a factual basis for the opinion. On the other hand, a defendant's assertion that trial counsel failed to adequately prepare for trial because counsel did not review all the police reports and one police report contained exculpatory information that counsel did not put into evidence, alleges a factual basis for the assertion" (¶ 21). The court indicated that "facts that allow a reviewing court to meaningfully assess a defendant's claim are those facts that are material to the issue presented to the court. A 'material fact' is: '[a] fact that is significant or essential to the issue or matter at hand'" (¶ 22) (citations omitted).

    [Editors' Note: 1) Attorneys who handle postconviction motions will want to review paragraph 24 of this opinion wherein the court provides lengthy hypothetical examples of sufficient and insufficient motions. 2) The court observed that the principles set forth in this decision have been applied to postconviction motions for many years. "We do note, however, that in motions filed pursuant to State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986), regarding plea withdrawal, the requisite standard is explained in State v. Hampton, 2004 WI 107, ___ Wis.2d ___, ___ N.W.2d ___. Furthermore, the requirements we explain herein also may not apply in the same way to other types of motions where the movant has a right to a hearing. See, e.g., Wis. Stat. § 973.20 (addressing restitution hearings)" (¶ 13). 3) The Hampton decision, referred to in this paragraph, is analyzed below.]

    Plea Agreements - Duty of Judge to Personally Inform Defendant that Court Is Not Bound by Terms of Plea Negotiation

    State v. Hampton, 2004 WI 107 (filed 8 July 2004)

    In this unanimous opinion authored by Justice Prosser, the supreme court addressed the trial court's duty to provide certain advice to the defendant when the court is aware of a plea agreement in the case and the defendant is pleading guilty or no contest.

    The supreme court's first determination was that, when taking a plea of guilty or no contest from a criminal defendant, the circuit court must advise the defendant personally on the record that the court is not bound by any plea agreement (including recommendations of the prosecutor), and it must ascertain whether the defendant understands this information. This reaffirms the court's position in State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973).

    The court next addressed the appropriate way for a circuit judge to personally advise the defendant that a plea agreement is not binding on the court. "We conclude that there is no single, inflexible way for the court to discharge this duty, but the most logical, consistent, and efficient method is for the court to personally deliver an explanation to the defendant and then ascertain whether the defendant understands that the court is not bound by a plea agreement. The court may not discharge this duty by anything less than a personal dialogue" (¶ 3).

    "The essence of the mandate is that the court must engage in a colloquy with the defendant on the record at the plea hearing to ascertain whether the defendant understands that the court is not bound by a sentencing recommendation from the prosecutor or any other term of the defendant's plea agreement. The plea colloquy is defective if it fails to produce an exchange on the record that indicates that the defendant understands the court is free to disregard recommendations based on a plea agreement for sentencing" (¶ 42).

    "The court's duty is to assure that the defendant has enough information and understanding of the court's independent role in sentencing, notwithstanding any plea agreement, that the defendant is able to enter a knowing, voluntary, and intelligent plea. This duty does not require that the court provide all the essential information personally, although personal explanation by the court strikes us as the most logical, consistent, and efficient way of delivering information. Nor does it require magic words or an inflexible script. In every case, however, the court must make personal inquiry of the defendant to determine whether the defendant understands that the court is not bound by the terms of the plea agreement" (¶ 43).

    Lastly, the court considered the showing a defendant must make in order to obtain a hearing on a motion to withdraw a plea that is defective under White, as reaffirmed by this decision. "[T]he defendant must point to a specific defect in the plea hearing which constitutes an error by the court. The defendant will not satisfy this burden merely by alleging that 'the plea colloquy was defective' or 'the court failed to conform to its mandatory duties during the plea colloquy.' The defendant must make specific allegations such as 'at no point during the plea colloquy did the court explain that it was not bound by the plea bargain and was free to disregard the prosecutor's sentencing recommendation.' In addition, the defendant must allege that he did not in fact understand that the court was not bound by the plea agreement because that information/explanation was not provided" (¶ 57).

    In this case it was undisputed that the circuit court did not advise the defendant that it was not bound by the plea agreement by expressly communicating this information to him at the plea hearing. The court never asked the defendant if he understood that the court was not bound by the plea agreement. Thus, the plea colloquy was deficient for failing to comply with the requirements of White. Because the defendant also alleged that he did not understand that the court was not bound by the prosecutor's sentence recommendation, he made the requisite showing and is entitled to an evidentiary hearing on his motion to withdraw his plea. At that hearing the state will have the opportunity to prove that the defendant in fact was aware that the court was not bound by the terms of the plea agreement that had been struck between his attorney and the prosecutor.

    [Editors' Note: One argument advanced by the state in this case was that no White violation occurred because 1) the defendant signed off on a guilty plea questionnaire that included the warning that the court was not bound by the terms of any plea agreement, and 2) the trial court asked the defendant whether he had reviewed the questionnaire and he acknowledged that it had been read to him by his attorney and that he had signed the form. The supreme court rejected this argument, saying "[t]he circuit court cannot satisfy its duty by inferring from the plea questionnaire or from something said at the plea hearing or elsewhere that the defendant understands that the court is not bound by the plea agreement. The court must make certain through dialogue that the defendant understands that the court is not bound by other people's promises. The plea questionnaire may be used to aid the court (or the prosecutor or defense counsel) in explaining, on the record at the plea hearing, the court's role in sentencing. But the court must ask the question that ascertains that the defendant understands what he has been told" (¶ 69).]

    Justice Roggensack did not participate in this case.

    Ineffective Assistance - Appeals - Direct Appeal Rights

    State v. Evans, 2004 WI 84 (filed 29 June 2004)

    Evans was convicted of several felonies. In an earlier pro se appeal, the court of appeals upheld all convictions in 2000. Two years later Evans obtained private counsel and sought to reinstate his direct appeal rights by filing a motion under Wis. Stat. section (Rule) 809.82(2) to extend the time for filing a postconviction motion or notice of appeal. The motion included information about the defendant's earlier representation by a State Public Defender appellate attorney, their falling out, and the defendant's pro se appeals in 2000. A one-judge panel summarily granted the motion. The court of appeals upheld a conviction for reckless injury but reversed a conviction for first-degree attempted homicide.

    The supreme court, in an opinion authored by Justice Wilcox, reversed the court of appeals. The prime issue before the supreme court was whether Evans had the right to raise many of the alleged errors in the second appeal. The supreme court reaffirmed State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992), which held that "a claim of ineffective assistance of appellate counsel must be brought by a petition for writ of habeas corpus. Utilizing Wis. Stat. § (Rule) 809.82(2), a procedural mechanism, as a substitute for a Knight petition for habeas corpus, so as to avoid making a substantive determination that a defendant was denied the effective assistance of appellate counsel constitutes an erroneous exercise of discretion. Therefore, we hold that the court of appeals erroneously exercised its discretion when it reinstated Evans's direct appeal rights by granting his § (Rule) 809.82(2) motion to extend the time for filing his direct appeal because the basis of the motion was a claim of ineffective assistance of appellate counsel" (¶ 4).

    The court's opinion explores the thicket of postconviction proceedings. "Once a defendant's direct appeal rights are exhausted or the time for filing an appeal has expired, the defendant may collaterally attack his conviction via a motion under Wis. Stat. § 974.06. An appeal under § 974.06 is a civil proceeding, Wis. Stat. §§ 974.06(6) & (Rule) 809.30(2)(L), and it is essentially the statutory substitute for a petition for writ of habeas corpus. A defendant may only raise constitutional or jurisdictional issues in a § 974.06 motion; thus, a § 974.06 motion may not be used to raise challenges to sufficiency of the evidence, jury instructions, evidentiary rulings, or procedural matters. In addition, under Wis. Stat.§ 974.06(4), issues that were raised or could have been raised during the direct appeal or in a previous § 974.06 motion may not be brought in a subsequent § 974.06 motion absent a showing of a 'sufficient reason.' ... 'Successive motions and appeals, which all could have been brought at the same time, run counter to the design and purpose of the legislation.' The circuit court's order on a § 974.06 motion may be appealed to the court of appeals" (¶¶ 32-33) (citations omitted).

    Nonetheless, Knight holds that section 974.06 cannot be used to bring a claim of ineffective assistance of appellate counsel even though it is the "statutory equivalent of a petition for writ of habeas corpus" (¶ 34). Knight requires that claims of ineffective assistance of appellate counsel must be raised by petition in the court of appeals. See ¶ 35. The record in this case underscores that a section 809.82(2) motion is "ill-suited to act as a vehicle for claims of ineffective assistance of appellate counsel" (¶ 59).

    Justice Crooks concurred but contended that the court should have decided the substantive issues addressed by the court of appeals, particularly those involving lesser-included offenses.

    Chief Justice Abrahamson, joined by Justice Bradley in part, dissented. Both dissenters thought that the court of appeals properly extended the defendant's time to file the postconviction motion. The Chief Justice also would have addressed the substantive issues, and she found reversible error based on the exclusion of certain evidence.

    Evidence - Hearsay - Penal Interest Exception

    State v. Guerard, 2004 WI 85 (filed 29 June 2004)

    A jury convicted the defendant of "numerous serious felonies." The issue before the supreme court concerned the proper foundation for the statement against penal interest exception to the hearsay rule, particularly the rule's corroboration requirement. The defendant offered into evidence a hearsay confession to the charged offenses purportedly made by his own brother, who nonetheless refused to testify as a defense witness. The circuit court refused to admit the third-party hearsay confession because it was not corroborated by independent evidence. The court of appeals affirmed the circuit court's decision.

    The supreme court, in an opinion authored by Justice Sykes, reversed the court of appeals. The lower courts erred by requiring the proponent of hearsay under the penal interest exception to come forward with "independent" evidence that corroborates the third-party exculpatory confession. In construing several prior cases, the court observed that "[a]lthough corroboration will usually be contained in evidence that is external to the statement itself, a requirement that corroboration must always be 'independent' would be arbitrary. That a declarant's confession is repeated to more than one witness may well be sufficient in light of all the facts and circumstances, to permit a reasonable person to conclude that it could be true, even in the absence of corroboration that is 'independent' of the confession itself. In this sense, the statement against penal interest may be sufficiently 'self-corroborating,' under the circumstances, by virtue of having been repeated in substantially the same form to a second or third witness" (¶ 34).

    On the record made in this case, the court was satisfied that the brother's hearsay statements, which inculpated himself and exculpated the defendant, were corroborated and hence admissible. The court also held that trial counsel rendered ineffective assistance in his handling of this hearsay evidence. See ¶ 46.

    Chief Justice Abrahamson, joined by Justice Bradley, concurred in the opinion except in its attempt to distinguish State v. Evans, 2004 WI 84 (also digested in this issue).

    Motions - Sufficiency of Evidence

    State v. Hayes, 2004 WI 80 (filed 16 June 2004)

    The defendant was convicted in a jury trial of sexual assault. The court of appeals affirmed the conviction and held that a defendant does not have to challenge the sufficiency of evidence during trial in order to preserve the challenge on appeal as a matter of right.

    The supreme court affirmed. Chief Justice Abrahamson, in an opinion joined by Justices Bradley and Crooks, concluded that "a challenge to the sufficiency of the evidence did not have to be raised during trial to preserve the issue for appeal as a matter of right and ... the evidence was sufficient to support the jury's verdict, beyond a reasonable doubt" (¶ 4). The crux of the opinion is the construction of Wis. Stat. section 974.02(2) and the continuing vitality of precedent beginning with State v. Gomez, 179 Wis. 2d 400, 507 N.W.2d 378 (Ct. App. 1993). Specifically, the court concluded "that the following interpretation best gives Wis. Stat. § 974.02(2) its intended legislative effect: A challenge to the sufficiency of evidence is different from other types of challenges not previously raised during trial. This difference justifies allowing a challenge to the sufficiency of the evidence to be raised on appeal as a matter of right despite the fact that the challenge was not raised in the circuit court. This interpretation comports with the text, context, history, and purposes of the statute, including the consequences of alternative interpretations" (¶ 54).

    In a concurring opinion, Justice Prosser argued that judicial administration was better served by adhering to a flawed court of appeals decision (Gomez) that has nonetheless been followed for 10 years. Change should come through statute or rule change (¶ 89). Justices Sykes and Wilcox also concurred, but concluded that challenges to the sufficiency of the evidence may be waived and cannot be brought as a matter of right for the first time on appeal. Justice Roggensack concurred as well, contending that the right to challenge the sufficiency of evidence is rooted in the state's burden of proof, not in Wis. Stat. section 974.02(2), and is not subject to the waiver rule.

    Defense Sentencing Memorandum - Admissibility in Subsequent Trial

    State v. Greve, 2004 WI 69 (filed 10 June 2004)

    The defendant was convicted of first-degree sexual assault of a child. In preparation for sentencing, he filed a sentencing memorandum, prepared by a clinical social worker, in which he is quoted as making incriminating statements about the crime. Later, the court of appeals reversed the conviction. On remand the state filed a motion in limine requesting permission to use the incriminating portions of the sentencing memorandum at the defendant's second trial. The circuit court denied the motion. The state appealed and the court of appeals certified the case to the supreme court, which granted certification and reversed the circuit court.

    The certified questions presented to the supreme court were as follows: "(1) Whether State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989), construing Wis. Stat. § 972.15 as limiting the use of a court-ordered presentence investigation report (PSI) to postconviction settings, also applies to a defendant's sentencing memorandum. (2) Whether a defendant's constitutional right to due process is violated when his sentencing memorandum is used in a subsequent criminal trial. (3) Whether a defendant's sentencing memorandum should be kept confidential, as a matter of public policy" (¶ 1).

    On the first question, a majority of the supreme court, in an opinion authored by Justice Roggensack, concluded that neither section 972.15 nor the Crowell decision applies to a defendant's sentencing memorandum. Answering the third certified question, the majority concluded that public policy considerations do not support extending a confidentiality requirement to a defendant's sentencing memorandum.

    With regard to the second certified question, a plurality of the court concluded that a defendant's constitutional right to due process will not be violated by use of his or her sentencing memorandum in a subsequent trial. On this issue the defendant had argued that he had a constitutional right to be sentenced on true and correct information and that the sentencing memorandum is necessary in order to afford him that right, and that he had a constitutional right to allocution that he had exercised through the filing of a sentencing memorandum and that this constitutional right will be chilled if his statements can be used in a subsequent trial (see ¶ 26).

    Justice Crooks filed a concurring opinion. Justice Prosser filed a dissent that was joined by Chief Justice Abra-hamson and Justice Bradley.

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    Sentence Modification - Truth-in-Sentencing I - New Factors

    State v. Crochiere, 2004 WI 78 (filed 16 June 2004)

    The case arose under the first piece of truth-in-sentencing legislation (TIS-I), which took effect on December 31, 1999. The defendant was sentenced under TIS-I for various crimes and did not argue that any aspect of subsequent truth-in-sentencing legislation (TIS-II) was at issue in his appeal.

    After serving approximately 18 months of a three-year confinement term for reckless endangerment, the defendant moved the circuit court for sentence modification. He alleged that his classification by the Department of Corrections as a minimum security prisoner, his approval to do off-ground maintenance work for the Department of Natural Resources, and his rehabilitative progress while imprisoned are "new factors" warranting sentence modification. He also asked the circuit court to consider that in prison he is paid only 24 cents per hour for his work, whereas if he were released, he could return to his former job where he would earn $10 per hour, thereby improving his ability to make child support and restitution payments.

    While admitting that these facts may not have been sufficient for "new factors" sentence modification under the old indeterminate sentencing system, the defendant urged that "new factor" jurisprudence must be changed for those sentenced under TIS-I so as to permit the court to consider those circumstances that in the past had been taken into account by the parole commission. The circuit court denied his motion and the court of appeals affirmed.

    In an unanimous decision authored by Justice Roggensack, the supreme court affirmed. The court began its analysis by reaffirming that circuit courts have inherent authority to modify sentences on the basis of a new factor. In order to obtain sentence modification based on a new factor, an inmate must show that: 1) a new factor exists and 2) the new factor warrants modification of his or her sentence.

    A new factor is not just any change in circumstances subsequent to sentencing. Rather, it is "a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties." Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). A new factor has been further defined as an event or development that frustrates the purpose of the original sentence. An inmate's progress or rehabilitation while incarcerated has not traditionally been deemed a new factor for sentence modification purposes.

    In this case the court "continue[d] to employ existing 'new factor' jurisprudence for TIS-I sentences, while noting there may be additional new factors unique to TIS-I that we have not previously identified. However, we conclude, as did the court of appeals, that [the defendant] has presented no information that constitutes a new factor supportive of sentence modification and that the circuit court appropriately exercised its discretion when it identified and applied the correct law in denying his motion" (¶ 2).

    Among other things the court observed that rehabilitation during incarceration is not a circumstance that will frustrate the purpose of a sentence "as we conclude it is likely that circuit courts sentence with the hope that rehabilitation will occur" (¶ 22). Further, even though the circuit court initially was unaware of the defendant's obligation to support his son, that fact was not one that frustrated the purpose of the sentence imposed. Lastly, in the opinion of the supreme court, the defendant's early release would undercut the seriousness of the offense, the trial court's concern about the victim's injuries, and its efforts at protecting the public.

    Sentence Credit - Time Spent in Custody Awaiting Chapter 980 Trial

    State ex rel. Thorson v. Schwarz, 2004 WI 96 (filed 1 July 2004)

    The petitioner was convicted in 1991 of attempted second-degree sexual assault and false imprisonment. As his parole date was nearing, the state commenced an action to commit him as a sexually violent person pursuant to Wis. Stat. chapter 980. Instead of being released from custody, the petitioner was instead transferred to the Wisconsin Resource Center (WRC) for further evaluation. He remained there awaiting trial on the chapter 980 petition.

    A jury in the chapter 980 trial determined that the petitioner was not a proper candidate for a chapter 980 commitment. The petitioner was then released on parole after being detained at the WRC for 170 days. His parole was subsequently revoked and the administrative law judge (ALJ) ordered him reincarcerated for a period of 10 months. The petitioner then sought credit against this term of reincarceration for the 170 days he had spent at the WRC. The ALJ denied the credit request as did the administrator of the Division of Hearings and Appeals. The petitioner then filed a petition for a writ of certiorari, which the circuit court denied. The court of appeals affirmed the decision of the circuit court.

    In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals. Under the sentence credit statute (Wis. Stat. § 973.155), two conditions must be met in order to receive sentence credit: 1) the person must have been "in custody" for the period in question; and 2) the period "in custody" must have been "in connection with the course of conduct for which the sentence was imposed." The court concluded that the petitioner's detention at the WRC under chapter 980 did not satisfy either of these requirements.

    A person must be subject to an escape charge in order to be in "custody" for purposes of sentence credit. The court concluded that under the escape statute the petitioner would not have been vulnerable to an escape charge had he absconded from his confinement at the WRC. Further, while at the WRC, the petitioner was not detained for the specific offense that caused his original conviction. Rather, the filing of the chapter 980 petition was the reason for his detention, and chapter 980 commitments are separate civil matters. Accordingly, the petitioner was not entitled to receive the requested credit.

    Chief Justice Abrahamson and Justice Roggensack filed separate dissenting opinions. Justice Sykes did not participate in this case.

    John Doe Investigations - Subpoena for Legislative Records

    Custodian of Records for the Legislative Tech. Servs. Bureau v. State, 2004 WI 65 (filed 9 June 2004)

    The Dane County district attorney commenced a John Doe proceeding under Wis. Stat. section 968.26 to investigate the political caucuses that once existed for both parties in the Assembly and Senate and to investigate whether the relationship of the caucuses to Wisconsin's senators and representatives, or the activities of certain legislators, violated criminal laws. At issue on this appeal was the validity of a John Doe subpoena that was issued to the Legislative Technology Services Bureau (LTSB) for electronically stored communications within its possession.

    The LTSB was created by authority of Wis. Stat. section 13.96. This statute provides for assistance with electronic data and for an electronic storage closet for communications created or received by legislators and employees of the legislature. The subpoena in question requested "all digital computer information or data maintained by the LTSB" stored by or on behalf of certain named elected officials and their employees as well as employees of the legislative caucuses or, in the alternative, the backup tapes from December 15, 2001 for the entire legislative branch of government. The subpoena was not specific either as to subject matter or to the periods of time for which the communications were sought. The John Doe judge ordered the LTSB records custodian to produce the communications contained on the backup tapes (see ¶ 33); it was undisputed that the tapes are the equivalent of hundreds of millions of printed pages.

    Responding to a writ of assistance asking that the subpoena be quashed, the supreme court answered multiple contentions raised by the LTSB. In a majority opinion authored by Justice Roggensack, the court rejected the custodian's claim that section 13.96 creates a statutory privilege that, though not expressly stated, is implicit in the LTSB's obligation to treat all information within its possession as confidential. Instead, it agreed with the state that the confidentiality provision of section 13.96 prevents voluntary disclosure to one who does not have proper authorization to receive the stored data, but that it is insufficient to excuse noncompliance with a valid John Doe subpoena.

    The court also considered the LTSB's argument that the subpoena violates article IV, section 16 of the Wisconsin Constitution, which provides that "no member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate." However, said the court, "given the state of the record before us, we cannot determine whether constitutionally permissible criminal charges are under investigation in the John Doe proceeding or whether the allegations are intertwined with duties the legislators were elected to perform. Accordingly, we cannot determine how Section 16 relates to the subpoena duces tecum. Furthermore, we conclude that even when Section 16 does apply, it provides only use immunity, i.e., immunity from prosecution based on use of the communications, and not secrecy, for communications of government officials and employees" (¶ 19).

    The court further concluded that neither the separation of powers doctrine nor article IV, section 8 of the Wisconsin Constitution ("each house may determine the rules of its own proceedings ... .") is sufficient to excuse the LTSB's compliance with a valid John Doe subpoena.

    Despite the above holdings, the court nevertheless granted the writ and quashed the subpoena, holding that the subpoena was overly broad and therefore unreasonable under the Fourth Amendment. The court did not conclude that all documents the John Doe judge seeks in order to investigate whether a crime has been committed are inaccessible. The court did hold, however, that more than a generalized demand for those documents is required. Any subsequent subpoena duces tecum issued in this proceeding, whether issued under the John Doe statute or the documentary subpoena statute (Wis. Stat. § 968.135), must be supported by probable cause to believe that the documents sought will produce evidence of a crime.

    "Additionally, because the data sought is meant to establish criminal conduct and may be data in which a person has a reasonable expectation of privacy, there must be a particularized showing in the affidavit of the district attorney requesting a subpoena. In that regard, the affidavit submitted must: (1) limit the requested subpoena to the subject matter described in the John Doe petition; (2) show that the data requested is relevant to the subject matter of the John Doe proceeding; (3) specify the data requested with reasonable particularity; and (4) cover a reasonable period of time. Additionally, all of the communications to the John Doe judge must be made a part of the record" (¶ 55) (citations omitted).

    Chief Justice Abrahamson filed a concurring opinion.

    Double Jeopardy - Collateral Estoppel

    State v. Henning, 2004 WI 89 (filed 30 June 2004)

    The defendant was charged with two counts of possessing controlled substances with the intent to deliver them and with three counts of bail jumping. The bail jumping charges were premised on three separate bonds to which the defendant was subject in other matters. The state charged that the defendant violated the terms of each of these three bonds by committing the new offenses of possessing drugs with the intent to deliver them.

    At trial, no lesser included drug offenses (like simple possession) were submitted to the jury. Nonetheless, during deliberations, the jury inquired whether it could find the defendant guilty of bail jumping if it found him not guilty of possessing drugs with the intent to deliver them but if it believed him guilty of simple drug possession. The court answered the question in the affirmative. The jury then acquitted the defendant on the charges of possessing drugs with the intent to deliver them but found him guilty of the three bail jumping charges.

    The court of appeals reversed. It refused to uphold the bail jumping convictions that were premised on an undocumented jury finding of simple drug possession as to which there were no lesser-included jury instructions. The appellate court further concluded that the defendant could not be retried for bail jumping on a theory that he violated the terms of his bond by committing simple drug possession. Focusing on the latter issue (that is, whether the defendant can be retried on a different theory of bail jumping), a majority of the supreme court, in a decision authored by Justice Prosser, reversed the court of appeals.

    The majority began its analysis by observing that this case presents "intricate issues of double jeopardy" (¶ 1). It was clear to the court that the defendant has been acquitted of possessing drugs with the intent to deliver them and may not be charged with these same offenses again in a second prosecution. Further, he may not be charged with the simple possession of these drugs because simple possession is a lesser included offense of the crimes for which the defendant has already been acquitted. The issue is whether he can be retried for bail jumping on a different theory than that urged in the first trial, that is, bail jumping predicated on the commission of the crime of simple possession of controlled substances.

    The majority concluded that "[i]n a multi-count trial, if the defendant is convicted of one or more counts and acquitted of one or more counts, and the defendant successfully appeals the conviction or convictions, the acquittals pose no direct bar to retrying the defendant. Rather, acquittal may in-directly impact the state's ability to retry the defendant under collateral estoppel principles [recognized in Ashe v. Swenson, 397 U.S. 436 (1970)]" (¶ 60). Defendants enjoy protection through issue preclusion and, according to Ashe, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. "Because the State already tried [the defendant] unsuccessfully for possession with intent to deliver, the State cannot retry him on that issue. Therefore, the State cannot base a retrial for bail jumping on possession with intent to deliver. However, whether [the defendant] is guilty of committing the crime of simple possession is not an issue that has been litigated in his favor. The State would not violate double jeopardy if it retried [the defendant] for the bail jumping predicated upon simple possession" (¶ 59).

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

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    Dealerships

    Wisconsin Fair Dealership Law - "Community of Interest"

    Central Corp. v. Research Prods. Corp., 2004 WI 76 (filed 15 June 2004)

    When Research Products Corp. (Research) notified Central Corp. (Central) of its intent to stop selling its products to Central, the latter filed a complaint under the Wisconsin Fair Dealership Law (WFDL). Section 135.03 of the WFDL provides in pertinent part that "[n]o grantor, directly or through any officer, agent or employee, may terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause. The burden of proving good cause is on the grantor."

    Under Wisconsin law a dealership is comprised of the following elements: "(1) a contract or agreement; (2) which grants the right to sell or distribute goods or services, or which grants the right to use a trade name, logo, advertising or other commercial symbol; and (3) a community of interest in the business of offering, selling or distributing goods or services" (¶ 29). Section 135.02(1) provides that a community of interest "means a continuing financial interest between the grantor and grantee in either the operation of the dealership business or the marketing of such goods or services."

    The supreme court has developed two guideposts which, if satisfied, lead to a conclusion that the parties shared a community of interest. One guidepost is whether the parties share a continuing financial interest. The other is whether the parties share an interdependence, which may be characterized as the degree to which the dealer and grantor cooperate, coordinate their activities, and share common goals in their business relationship. "When construed together, these guideposts must reveal an interest in a business relationship great enough to threaten the financial health of the dealer, if the grantor were to decide to exercise its power to terminate. These stringent requirements are intended to weed out the typical vendor-vendee relationship" (¶ 32).

    In its complaint, Central alleged that there was a community of interest between itself and Research "because there is a continuing financial interest between the parties in the sale and distribution of these goods and the parties are dependent upon each other for the sales and distribution of the goods" (¶ 3). Research filed a motion for summary judgment, arguing that Central was not a dealer under the WFDL because there was no community of interest between the parties. The circuit court granted summary judgment to Research. The court of appeals affirmed, holding that no reasonable person could conclude that Central had demonstrated that it and Research had a community of interest. It concluded that the parties had a typical vendor-vendee relationship and that there were no disputed material facts demonstrating a continuing financial interest and interdependence as required by the WFDL. See ¶ 5.

    In an unanimous decision authored by Justice Crooks, the supreme court reversed the court of appeals. "We conclude that summary judgment was improperly granted to Research. Genuine issues of material fact exist here, as well as reasonable alternative inferences drawn from undisputed material facts, so that a trial is warranted in this case to determine whether there is a community of interest, and, therefore, a dealership relationship. Several facets of Central's relationship with Research lead to the conclusion that, under the WFDL, summary judgment should not have been granted. Those factors, and the alternative inferences that may be drawn from them, include: the parties' 20-year business relationship; Central's owners' significant financial investment in the construction of a warehouse based, in part, on the amount of Research's products it housed; Central's practice of keeping a substantial amount of Research's product in inventory; Research's desire to limit Central's sales to a specific territory; and Central's practice of keeping spare parts for Research's products on hand for sale, at cost, to its customers. Where there are genuine issues of material fact or reasonable alternative inferences drawn from undisputed material facts, the determination of whether there is a community of interest is one which will be made by the trier of fact based on an examination of all of the facets of the business relationship" (¶ 2).

    Justices Wilcox and Sykes did not participate in this case.

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    Employment Law

    Wisconsin Fair Employment Act - Reasonable Accommodation - Employer Hardship

    Hutchinson Tech. Inc. v. LIRC, 2004 WI 90 (filed 30 June 2004)

    Hutchinson Technology Inc. (HTI) produces suspension assemblies for computer hard drives at a plant that uses four crews to work rotating 12-hour shifts in its production facilities. Those crews generally work three days one week and four days the next, with every other weekend off. Roytek was employed by HTI and, at the time she was hired, understood that she would be required to work 12-hour days.

    Roytek was subsequently diagnosed with lower back pain and her physician concluded that she was temporarily unable to work. When she returned, she worked six-hour days and later increased to eight-hour days, a schedule that continued for eight months. The company doctor then determined that Roytek could work steadily on an eight-hour shift, five days per week, but that she was incapable of working 12-hour shifts on a consistent basis. Roytek then went on short-term disability leave and, when her disability pay ran out, HTI terminated her.

    The Labor and Industry Review Commission (LIRC) concluded that HTI discriminated against Roytek on the basis of her disability. Affirming the decision of an administrative law judge, it concluded that Roytek had a disability, as defined by the Wisconsin Fair Employment Act (WFEA), and that HTI failed to provide a reasonable accommodation that would have allowed her to continue her employment with HTI. The circuit court and the court of appeals affirmed LIRC's decision.

    In a majority decision authored by Justice Crooks, the supreme court affirmed the court of appeals. It concluded that Roytek is a person with a disability under the WFEA. She has established that she has damage to her normal bodily condition (back pain related to disc problems) and that such problems restrict her ability to work a 12-hour shift. She is also limited in her capacity to work in her job, as both her doctor and the company doctor concluded that she is limited in the amount of static standing and sitting she can endure before experiencing pain.

    The court further concluded that "Roytek met her initial burden of establishing the reasonableness of her proposed accommodations. HTI did not establish that it could not reasonably accommodate Roytek's disability, since it accommodated her disability for eight months without any significant difficulties. Moreover, HTI did not introduce any evidence that allowing Roytek to continue to work eight-hour shifts at HTI would cause hardship to its business" (¶ 37).

    Justice Sykes filed a concurring opinion that was joined by Justice Wilcox. Justice Roggensack filed a dissent that was joined by Justice Prosser.

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    Lemon Law

    Offer to Transfer Title to Manufacturer - Offer Implied in Demand for Replacement Vehicle

    Garcia v. Mazda Motor of Am. Inc., 2004 WI 93 (filed 1 July 2004)

    The plaintiff experienced problems with her new vehicle and notified Mazda that she wanted a replacement vehicle pursuant to Wisconsin's Lemon Law (Wis. Stat. § 218.0171). However, she did not explicitly offer to transfer title to Mazda. When she ultimately commenced suit, Mazda moved for summary judgment, alleging that the plaintiff was not entitled to relief because of her failure to offer to transfer title. The circuit court granted summary judgment to Mazda. In a published decision, the court of appeals affirmed. See 2003 WI App 208. In an unanimous decision authored by Justice Prosser, the supreme court reversed the court of appeals.

    Consumers requesting relief under the Wisconsin Lemon Law must fulfill two requirements: they must elect a remedy by demanding either a replacement vehicle or a refund, and they must offer to transfer title to the vehicle back to the manufacturer. The question before the court was whether the plaintiff's demand for a replacement vehicle complied with the notice requirements of the Lemon Law by providing notice of her intent to transfer title to her vehicle to Mazda.

    The supreme court concluded that "a consumer's demand for a replacement vehicle under the Wisconsin Lemon Law necessarily implies an offer to transfer title" (¶ 3). While an explicit offer to transfer title "is surely the best path for a dissatisfied consumer to follow when invoking the protections of the Wisconsin Lemon Law" (¶ 18), the court was satisfied that "when a consumer demands a replacement vehicle under the Wisconsin Lemon Law, the consumer impliedly offers to transfer title to the old vehicle, and we so hold in this case. [The plaintiff's] demand for a replacement satisfies the Wisconsin Lemon Law's requirement of an offer to transfer title" (¶ 19).

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    Motor Vehicle Law

    OWI - Involuntary Blood Draw after Arrestee Has Submitted to Breath Testing

    State v. Faust, 2004 WI 99 (filed 2 July 2004)

    The defendant was arrested for OWI and transported to a police station, where he submitted to breath testing pursuant to the implied consent statute. The test indicated that the defendant's blood alcohol level was 0.09. The officer then checked the defendant's record and discovered that he had two prior OWI convictions. Under the applicable statute this meant that the defendant's prohibited alcohol concentration was 0.08. The officer then requested that the defendant furnish a blood sample, which he refused to do. The defendant was then transported to a hospital for a nonconsensual blood draw, the results of which revealed an alcohol concentration of 0.10.

    The defendant filed a motion to suppress the results of the blood test, arguing that the warrantless test was taken in violation of the United States and Wisconsin Constitutions. The defendant said that exigent circumstances did not exist because the arresting officer already had obtained what he believed to be a voluntary and sufficient breath test that indicated the defendant's level of intoxication was in excess of the legal limit. At the motion hearing, the officer indicated that while it was not department procedure to request a blood test in all OWI cases, he sought a blood test for the purpose of gathering additional evidence because the result of the breath test was very near the legal limit. The officer also testified that at the time the breath test was administered, he believed it to be a voluntary and satisfactory test. The circuit court granted the motion to suppress, concluding that exigent circumstances did not exist to justify the warrantless taking of the defendant's blood. The court of appeals affirmed.

    In a majority decision authored by Justice Wilcox, the supreme court reversed the court of appeals. As framed by the court, the issue before it was whether, under the Fourth Amendment and its counterpart in the Wisconsin Constitution, exigent circumstances exist for a nonconsensual warrantless blood draw after the police have obtained what the arresting officer believes to be a voluntary, satisfactory, and useable chemical breath test indicating that the arrestee was operating a motor vehicle with a prohibited alcohol concentration.

    The court reaffirmed its position that the rapid dissipation of alcohol in the bloodstream of an individual arrested for a drunk-driving related offense constitutes an exigency that justifies the warrantless nonconsensual test of that individual's blood, breath, or urine, so long as the test satisfies the four factors enumerated in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). Those factors are as follows: 1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime; 2) there is a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection to the blood draw.

    The court held that "[t]he presence of one presumptively valid chemical sample of the defendant's breath does not extinguish the exigent circumstances justifying a warrantless blood draw. The nature of the evidence sought - that is, the rapid dissipation of alcohol from the bloodstream - not the existence of other evidence, determines the exigency. Because exigent circumstances were present in this case and the blood test satisfied the test we set forth in Bohling, we reverse the decision of the court of appeals" (¶ 34).

    In a footnote the majority noted that, under the facts of this case, it was reasonable for police to take one blood test in addition to the single chemical breath test. "We do not hold that it is reasonable for the police to 'take as many valid tests of the suspect's blood alcohol as they [think] necessary to sustain a conviction.' Chief Justice Abrahamson's dissent, ¶ 45. To assuage the concern of the dissent, we reiterate that the reasonableness of a warrantless nonconsensual test when a presumptively valid consensual test is present will depend upon the totality of the circumstances of each individual case" (¶ 33 n.16).

    The court also noted that in this case it was not addressing whether exigent circumstances would exist if the first test indicates that the defendant's blood alcohol concentration is within legal limits. See ¶ 2 n.1.

    Chief Justice Abrahamson filed a dissenting opinion that was joined by Justices Bradley and Prosser. Justice Prosser filed a dissent that was joined by the Chief Justice and Justice Bradley.

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    Municipal Law

    Lake Districts - Detachment of Territory from Lake District

    Donaldson v. Board of Comm'rs of Rock-Koshkonong Lake Dist., 2004 WI 67 (filed 9 June 2004)

    In 1974 the legislature created Wis. Stat. chapter 33 to afford additional protection to Wisconsin's inland lakes. The creation of lake districts is a significant component of that chapter's manifold approach to addressing the legislature's inland lakes objectives. The districts, which are created by county boards, are corporate bodies with the powers of a municipal corporation and are authorized to undertake a program of lake protection and rehabilitation. To finance their operations, lake districts have the power to impose taxes and special assessments. Before establishing a lake district, the county board must find, among other things, that the property to be included in the district will be benefited by the establishment of the district.

    In this case the supreme court addressed a number of issues relating to lake districts and the detachment of territory from those districts. The litigation arose in connection with the plaintiff's attempt to have his two parcels of property detached from a lake district. The lake district board denied the petition. The plaintiff appealed to the circuit court, which granted summary judgment in his favor. However, the court of appeals reversed; it agreed with the lake district that detachment is proper only if the district finds there has been a change in circumstances since the formation of the district. See 2003 WI App 26.

    In a majority decision authored by Justice Prosser, the supreme court concluded that Wis. Stat. section 33.33(3) accords a statutory right to petition the lake district board for an individual determination of whether specific territory is "benefited" by continued inclusion in the lake district. This determination is separate and distinct from the legislative decision to create the district and there is no inherent conflict between a county board's decision to create a district with certain property in it and a lake district board's decision to detach a parcel from the district.

    "A county board determines 'that the property to be included in the district will be benefited by the establishment' of the district. Wis. Stat. § 33.26(3) (emphasis added). This finding is both general and predictive. In the absence of an individualized determination, a county board is making a rough approximation of benefit to all properties in the district as the county board looks to the future. By contrast, a lake district board must decide whether 'such territory is not benefited by continued inclusion in the district.' Wis. Stat. § 33.33(3) (emphasis added). This determination requires an individualized evaluation of property under present circumstances. A lake district board may utilize hindsight and foresight as it makes its fact-based detachment determination on an individual parcel. The commissioners are aware of both past and present activities of the lake district, and, as such, can intelligently ascertain whether a property initially included in the district is currently benefited and will continue to benefit from the district. The district board is uniquely situated to assess whether activities slated for future implementation will benefit a particular piece of property" (¶ 58).

    The court concluded that it is not always necessary for the petitioner in a detachment proceeding to prove that there has been a change in circumstances. "When there has been no individualized determination of benefit to property by the county board, there is a presumption that the board made a reasonable decision, but this presumption is not conclusive in a future detachment proceeding. In other words, the county board's decision normally does not settle the issue of benefit to individual property. As noted [earlier in the decision], the Legislative Council described the distinction between the test for annexation to a lake district and the test for detachment from a lake district: 'Annexation proposals are measured against the same standards used for establishing the district, and are similarly appealable. Detachment proposals are decided upon the basis of whether the territory proposed for detachment is benefited by continued inclusion in the district.' LRB 170/7:29-30 (emphasis added). The framers of the legislation explicitly recognized a distinction between one determination and the other. Consequently, a lake district board's duty to render an individualized determination as to present benefit to a specific parcel cannot be satisfied by relying solely on the decision previously made by the county board, unless the county board made an individualized determination and nothing has changed" (¶ 59).

    Regarding judicial review of the decisions of a lake district board, the court concluded that a lake district board performs a legislative function when it considers whether to detach territory under section 33.33(3). "Accordingly, a lake district board's detachment decision is presumed correct, and judicial review is limited to inquiring (1) whether the lake district board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that the board might reasonably make the determination in question. When the board fails this review, the circuit court should remand the petition to the lake district board for action consistent with its decision" (¶ 4).

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

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    Torts

    Safe-Place Statute - Constructive Notice of Unsafe Condition - Common Law Negligence

    Megal v. Green Bay Area Visitor & Convention Bureau Inc., 2004 WI 98 (filed 2 July 2004)

    The plaintiff attended an ice show at the Brown County Veterans Memorial Arena, which was leased to the Green Bay Area Visitor and Convention Bureau (the Bureau). While the plaintiff was descending a stairway after the show, she slipped and fell on a ketchup-covered french fry, fracturing an ankle and suffering permanent injury. The plaintiff did not see the french fry before the fall nor did she know how it got there or how long it had been there. There were no other spilled food items on the stairs, nor any other noticeable litter, trash, or other debris cluttering the arena.

    The plaintiff sued the Bureau alleging negligence and a safe-place statute (Wis. Stat. § 101.11) violation. The circuit court granted summary judgment to the Bureau on both claims. The court of appeals affirmed. In an unanimous decision authored by Justice Roggensack, the supreme court affirmed in part and reversed in part.

    According to the safe-place statute, every employer and owner of a public building is to provide a place that is safe for employees and for frequenters of that place, and "[e]very employer and every owner of a place of employment or a public building ... shall so construct, repair or maintain such place of employment or public building as to render the same safe." "[T]he duty set forth by the statute requires an employer or owner to make the place 'as safe as the nature of the premises reasonably permits.' The 'nature of the business' and the 'manner in which [business] is conducted' are factors to be considered in assessing whether the premises are safe, within the meaning of § 101.11(1)" (¶ 10) (citations omitted).

    For an employer or owner to be subject to the standard of care established by the statute for any unsafe condition of the premises, the employer or owner must have notice that an unsafe condition exists. This notice can be actual or constructive. "[T]he general rule is that an employer or owner is deemed to have constructive notice of a defect or unsafe condition when that defect or condition has existed a long enough time for a reasonably vigilant owner to discover and repair it. Ordinarily, constructive notice requires evidence as to the length of time that the condition existed" (¶ 12) (citations omitted).

    However, "[w]e have imputed constructive notice, without a showing of temporal evidence of the unsafe condition, in a narrow class of cases where the method of merchandizing articles for sale to the public in the area where the harm occurred should have made that harm reasonably foreseeable at that location. It is important that the harm that occurred be foreseeable in the area where it occurred because Wis. Stat. § 101.11(1) creates a standard of care that requires the employer or owner to make the premises 'as safe as its nature would reasonably permit,' by correcting the unsafe condition....We have refused to impute constructive notice where the area where the harm occurred is not an area where the owner was merchandizing articles for sale to the public in a way that made the harm that occurred reasonably foreseeable" (¶ 18) (citations omitted).

    In this case the plaintiff provided neither evidence of the length of time the french fry was on the stair, nor any expert testimony about the usual management and maintenance of a 61,000-square-foot public building where events are held and food is sold for the benefit of the patrons who attend an event. "What is reasonable to expect for the management of such a facility in regard to preventing the kind of accident that occurred here is not within the common knowledge of mankind or of this court. Because we have been presented with no testimony that the Arena is not as safe as the nature of the enterprise permits, and because Wis. Stat. § 101.11(1) does not make the Bureau the insurer of all who attend events at the Arena, we have no basis on which to analyze the [limited exception to the general rule that temporal evidence is required before constructive notice can arise]. We cannot speculate about what is reasonable for such an enterprise" (¶ 20). Accordingly, the court affirmed the decision dismissing the safe-place claim.

    The court of appeals had affirmed the circuit court's dismissal of the negligence claim, stating that a common- law negligence claim could not be maintained if a safe-place violation is alleged and cannot be established. The supreme court disagreed. Withdrawing the analysis in certain earlier decisions, the court concluded that "there is no reason why, if an employee or frequenter has not proved that the employer or owner violated the higher standard of care in Wis. Stat. § 101.11(1) that it necessarily follows that the employee or frequenter cannot prove that the employer or owner violated the lower standard of common-law negligence by committing a negligent act" (¶ 23).

    Justice Sykes did not participate in this case.

    Franchises - Vicarious Liability

    Kerl v. Dennis Rasmussen Inc., 2004 WI 86 (filed 29 June 2004)

    Pierce was a work release inmate employed at an Arby's Restaurant operated by franchisee Dennis Rasmussen Inc. (DRI). One day Pierce walked off the job at Arby's without permission and crossed the street to a Wal-Mart parking lot, where he shot and seriously wounded his former girlfriend and killed her fiancé. He then committed suicide.

    The girlfriend and the estate of her fiancé sued DRI and Arby's Inc. The plaintiffs claimed, among other arguments, that Arby's is vicariously liable as DRI's franchisor for DRI's negligent supervision of Pierce. The circuit court granted summary judgment in favor of Arby's and the court of appeals affirmed. In an unanimous decision authored by Justice Sykes, the supreme court affirmed the court of appeals.

    Said the court, "[v]icarious liability under the doctrine of respondeat superior depends upon the existence of a master/servant agency relationship. Vicarious liability under respondeat superior is a form of liability without fault - the imposition of liability on an innocent party for the tortious conduct of another based upon the existence of a particularized agency relationship. As such, it is an exception to our fault-based liability system, and is imposed only where the principal has control or the right to control the physical conduct of the agent such that a master/servant relationship can be said to exist" (¶ 4).

    The court found that the marketing, quality, and operational standards that are commonly found in franchise agreements are insufficient to establish the close supervisory control or right of control that is necessary to demonstrate the existence of a master/servant relationship for all purposes or as a general matter. "We hold, therefore, that a franchisor may be held vicariously liable for the tortious conduct of its franchisee only if the franchisor has control or a right of control over the daily operation of the specific aspect of the franchisee's business that is alleged to have caused the harm" (¶ 7).

    In this case, although the license agreement between Arby's and DRI imposed many quality and operational standards on the franchise, Arby's did not have control or the right to control DRI's supervision of its employees. Accordingly, summary judgment dismissing the plaintiffs' vicarious liability claims against Arby's was properly granted.

    Justice Wilcox did not participate in this case.

    Firefighters Rule - Police - Dog Bites

    Cole v. Hubanks, 2004 WI 74 (filed 11 June 2004)

    Cole, a police officer, was on patrol when she was bitten by a dog. She sued the dog's owners and their homeowner's insurer on various grounds. The circuit court dismissed her complaint because the "firefighters rule" precluded liability. The court of appeals certified the following issue to the supreme court: "Whether Wisconsin's 'firefighters rule,' that is based on public policy limitations on liability, should be extended to police officers to bar an officer from suing dog owners for injuries the officer received while capturing the dog" (¶ 1).

    The supreme court, in an opinion written by Justice Roggensack, reversed and remanded the case. When the firefighters rule was adopted in 1970, it was narrowly based on specific public policy grounds that limited property owners' liability to firefighters injured on their premises. Later cases have refined the rule's narrow reach. The court noted the many differences between firefighters and police officers, including police officers' occasional duty to capture stray dogs, something for which they receive no special training. In the end, however, the court declined to answer the question based on "job descriptions" and instead turned to a public policy analysis in light of the particular claims at hand. None of the six public policy factors commonly used by the courts (for example, "remoteness") precluded Cole's common law negligence claim. Nor did they preempt her strict liability claim under the dog bite statute, Wis. Stat. section 174.02.

    Justice Sykes dissented on the ground that the facts of this case fell within the policy analysis of the firefighters rule, which has also been extended to emergency medical technicians who are injured while extracting an accident victim from a car.

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    Worker's Compensation

    Bad Faith - Reasonably Disputed

    Bosco v. LIRC, 2004 WI 77 (filed 15 June 2004)

    After much litigation, an injured worker, Bosco, received coverage under the Worker's Compensation Act for his work-related disability. In 2000, he sought bad faith penalties against his employer for failing to pay the permanent total disability award ordered by an administrative law judge (ALJ) pending appeal (¶ 10). The presiding ALJ denied the bad faith claim. The Labor & Industry Commission (LIRC) affirmed, ruling that the statute in question was "fairly debatable" and that the employer had reasonably withheld payment. The circuit court, however, reversed LIRC because the employer's appeal was merely an effort to "escape" liability on the claim, for which it clearly was obligated (see ¶ 12). The court of appeals affirmed.

    The supreme court, in an opinion written by Justice Wilcox, affirmed the court of appeals. The appeal embraced two issues. First, the court examined whether "[Wis. Stat.] § 102.23(5) unambiguously requires an employer to pay benefits to an employee upon commencement of an action for judicial review of LIRC's award when only the date of injury is challenged on appeal, but it is conceded that the employee suffered permanent total disability that was caused by his employment with the employer, such that failure to make payment pending appeal could not be based on a reasonable interpretation of § 102.23(5)" (¶ 14). The court held that the statute was unambiguous.

    Moreover, the statute, case law, and the record showed that the employer's liability was "fixed" at the first proceeding and an initial appeal concerned only insurance coverage, specifically, which insurance carrier was responsible for covering the loss. "The unambiguous language in §102.23(5) requires payment to the injured employee pending appeal of LIRC's decision 'when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies.' Wis.Stat.§102.23(5). We agree with the court of appeals that this language is unequivocal: 'an employer must make payment of benefits during judicial review when the only question is who will pay the benefits.' The facts of this case fall squarely within the statutory language" (¶ 45).

    The court also observed that the aggrieved insurer could have petitioned for reimbursement from a prior carrier; "such adjustments are an everyday part of worker's compensation practice" (¶ 51). The holding, however, is limited: "[W]e do not hold that the failure to comply with the dictates of § 102.23(5) in this instance constitutes bad faith." Rather, the court found that the insurer's construction of the statute was "not reasonable or fairly debatable" in light of the litigation record. See ¶ 52.

    The second issue was "whether an insured employer is subject to bad faith penalties under § 102.18(1)(bp), separate from its insurer, for failure to comply with § 102.23(5)" (¶ 14). The court held that the employer could be liable in bad faith "because §102.18(1)(bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits and because §102.23(5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits[.]" The court "again" emphasized, however, that it was not holding that an employer "is liable for bad faith penalties for failing to comply with §102.23(5); rather, ... it may be liable for bad faith penalties under §102.18(1)(bp) for failing to comply with §102.23(5) if LIRC determines that the prerequisites for a finding of bad faith are satisfied" (¶ 60).

    Disability - "Odd-Lot Doctrine"

    Beecher v. LIRC, 2004 WI 88 (filed 29 June 2004)

    A foundry worker whose employment involved strenuous work underwent his third back surgery in 1997 because of an injury. He returned to "light duty" in 1998 but was sent home after several weeks because there was little for him to do. Later the company moved out of Wisconsin and did not offer to relocate the employee. In a hearing on the worker's disability claim, an administrative law judge found that he had sustained permanent total disability on a vocational basis as a result of the 1997 injury and was thus entitled to disability benefits for life (¶ 15). On appeal, the Labor & Industry Review Commission (LIRC) eventually concluded that the worker had failed to establish a prima facie case for permanent total disability and had sustained a loss of earning capacity of 60 percent. The worker then appealed to the circuit court, which upheld LIRC. The court of appeals reversed because LIRC erred in finding that the worker had failed to establish a prima facie case of permanent total disability. Based on the odd-lot doctrine, he was not required to produce evidence of a job search.

    The supreme court, in an opinion written by Justice Sykes, affirmed the court of appeals. The issue was whether "a prima facie case for permanent total disability under the 'odd-lot' doctrine must include evidence that the injured employee has made a reasonable effort to find suitable post-injury employment" (¶ 1). [The odd-lot doctrine, a rule of evidence, essentially "provides that some injured workers should be characterized as permanently, totally disabled even though they are still capable of earning occasional income" (¶ 2).] The court's opinion explains the odd-lot doctrine and rejects LIRC's contention that later statutory changes modified its prima facie requirements. See ¶ 41. The procedural and evidentiary requirements borne by both employee and employer are set forth in detail. See ¶ 49.

    The supreme court summarized its holding as follows: "[A] claimant is not required to present evidence of a job search as part of prima facie case of odd-lot unemployability, provided the claimant shows that because of his injury and the other Balczewski [Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977)] factors such as age, education, capacity, and training, he is unable to secure continuing, gainful employment. If the claimant succeeds in putting himself within the odd-lot category, it falls to the employer to rebut the prima facie case by demonstrating that the claimant is employable and that jobs exist for him" (¶ 6; see also ¶¶ 55, 57). Thus, LIRC erred by placing an evidentiary burden on the worker related to his search for employment.

    Chief Justice Abrahamson, joined by Justice Bradley, wrote separately to "clarify the statutory basis of the odd-lot doctrine and the level of deference that the majority opinion should have afforded LIRC's statutory interpretation" (¶ 93). Justice Bradley also wrote a separate concurrence that critiqued the majority's application of common law principles in the statutory field of worker's compensation, an issue not briefed by the parties.

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