Vol. 78, No. 2, February
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
Summary Judgment - Frivolous Appeals
Baumeister v. Automated
Prods. Inc., 2004 WI
148 (filed 15 Dec. 2004)
Two workers who were injured at a church construction site sued
(among others) Solner, the architect who designed the roof's truss
system. The circuit court granted summary judgment in favor of Solner on
the ground that he had no duty to supervise the construction site or
assure safe conditions. The court of appeals affirmed the grant of
summary judgment in Solner's favor but rejected Solner's contention that
the appeal was frivolous.
The supreme court, in an opinion written by Justice Crooks, affirmed.
First, the court affirmed the grant of summary judgment dismissing the
claims against Solner. The record failed to raise any material issue of
fact showing that Solner breached any duty arising in tort or under the
construction contract. The court's discussion of the tort and contract
claims is mostly fact-specific.
Second, the court addressed broader issues involving frivolous claims
and appeals, "a serious cause for concern." It held that "[a] frivolous
argument in a brief is not enough to find the appeal is frivolous." More
to the point, "[t]here is nothing in the language of § (Rule)
809.25(3) that allows a court to determine that an appeal is frivolous,
merely because an individual claim or defense is frivolous" (¶ 26).
The court noted that the plaintiffs raised legitimate issues regarding
Solner's duty of care. The court also held that the same basic approach
governs both allegedly frivolous claims and allegedly frivolous appeals,
namely, "doubts should be resolved in favor of finding a claim
nonfrivolous, unless the claim was brought solely for purposes such as
harassment or malicious injury, or without any reasonable basis in law
or equity" (¶ 28).
Finally, the supreme court pointedly refused to overrule case law
that permits the court of appeals to review a summary judgment ruling
while a counterclaim under section 814.025 (the frivolous claim statute)
is pending in the circuit court. Solner argued that "this rule deprives
an appellate court of the circuit court's decision on frivolousness"
(¶ 31). In rejecting Solner's contention, the supreme court
explained: "We encourage a party alleging a frivolous claim to move the
appellate court to stay the appeal, and retain jurisdiction while the
case is remanded for a circuit court ruling on the frivolousness issue.
If a party chooses to appeal the circuit court's frivolousness ruling,
the appellate court can then combine the initial appeal on the merits
with the appeal of the decision of the circuit court on frivolousness"
Justice Wilcox did not participate. Justice Butler filed a concurring
opinion in which he expressed a preference for "a rule that would
require claims for attorney's fees to be disposed of before a judgment
or order becomes final" but recognized that the controlling precedent
held otherwise and that there was presently no need to depart from
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John Doe Investigations - Subpoena for Records
Custodian of Records for
Legislative Tech. Servs. Bureau v. State, 2004 WI 149 (filed 15
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 political 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 in this appeal was the
validity of a John Doe subpoena that was issued to the Legislative
Technology Services Bureau for electronically stored communications
within its possession.
On June 9, 2004 the Wisconsin Supreme Court rendered a decision in
this case. See 2004 WI 65; see also Daniel D. Blinka
& Thomas J. Hammer, "Supreme Court Digest," Wis. Law. 34 (Aug.
2004). In response to a motion for reconsideration, the court issued a
per curiam opinion in which it denied the motion but withdrew paragraphs
53 to 55 of the original decision and substituted the following in their
"¶53 Because a John Doe proceeding is a criminal investigative
tool, Unnamed Person No. 1, 260 Wis. 2d 653, ¶22, we turn
to Wis. Stat. § 968.135, entitled `Subpoena for documents.' Section
968.135 requires a showing of probable cause to believe that the
documents sought by the subpoena duces tecum will produce evidence
relevant to potentially criminal activity. While this probable cause
determination differs from the purpose for which a John Doe proceeding
is commenced, that is, to decide whether there is probable cause to
believe that a crime actually has been committed and who committed it,
see Reimann, 214 Wis. 2d at 621, 624, the question remains how
the probable cause required by § 968.135 may be shown in a John Doe
"¶54 In Oklahoma Press Publishing Co. v. Walling, 327
U.S. 186 (1946), the United States Supreme Court explained that probable
cause, as literally required in the case of a warrant, is shown in the
context of a subpoena duces tecum if: (1) the investigation is for a
lawfully authorized purpose and (2) the documents requested are relevant
to the inquiry. See Walling, 327 U.S. at 209; see also
Washington, 83 Wis. 2d at 841. In the case of a John Doe
proceeding, the proceeding is lawfully authorized if the judge
determines that the complainant makes a threshold showing sufficient to
establish that the complainant has an objectively reasonable belief that
a crime has been committed. Reimann, 214 Wis. 2d at 623. With
this judicial determination, any document requested, in order to be
relevant to the inquiry, must focus on the factual assertions made to
the judge at the commencement of the proceeding. See Walling,
327 U.S. at 209; Washington, 83 Wis. 2d at 841. The necessary
link between the documents requested and the suspected criminal activity
under investigation is thus shown, affording probable cause to believe
that the documents sought will produce evidence relevant to potentially
criminal activity, as required by Wis. Stat. § 968.135.
"¶55 Accordingly, we conclude that any subsequent subpoena duces
tecum issued in this John Doe proceeding satisfies the requirements of
Wis. Stat. §§ 968.26 and 968.135 and the constitutional
concerns regarding an overly broad subpoena explained above, when the
affidavit submitted to request the subpoena for documents: (1) limits
the requested data to the subject matter described in the John Doe
petition, Reimann, 214 Wis. 2d at 622; (2) shows that the data
requested is relevant to the subject matter of the John Doe proceeding,
Washington, 83 Wis. 2d at 843; (3) specifies the data requested
with reasonable particularity, Walling, 327 U.S. at 209;
Hale, 201 U.S. at 77; and (4) covers a reasonable period of
time, Washington, 83 Wis. 2d at 844. Additionally, all of the
communications to the John Doe judge must be made a part of the record.
See id. at 824-25."
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
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Municipal Trials - Trials De Novo on Appeal
City of Pewaukee v.
Carter, 2004 WI 136 (filed 4 Nov. 2004)
Carter received two citations, for operating a motor vehicle while
intoxicated and operating with a prohibited alcohol concentration.
During the municipal court trial, the city called three witnesses who
testified and who were subject to cross-examination. At the close of the
city's case against Carter, his attorney moved for dismissal on the
ground that the city had failed to meet its burden of proof. The
municipal court granted the motion.
The city appealed the municipal court's decision and requested a new
trial before the circuit court pursuant to Wis. Stat. section 800.14(4),
which provides that upon a request from either party to a municipal
court action (or on the circuit court's own motion), the circuit court
shall order that a new trial be held in circuit court. Carter filed a
motion in circuit court to dismiss the city's request, on the ground
that the municipal court proceeding was not a "fully litigated" trial
and therefore the city did not have the right to request a "new trial"
as provided in section 800.14(4). The circuit court granted the motion
and the court of appeals affirmed. In a unanimous decision authored by
Chief Justice Abrahamson, the supreme court reversed the court of
The issue before the supreme court was whether a "trial" occurred in
the municipal court for the purpose of triggering the city's right to
obtain a new trial in circuit court under section 800.14(4). "More
precisely, the question is: Did the municipal court proceeding
constitute a `trial' under § 800.14(4) when the City presented
sworn witnesses, those witnesses were cross-examined by the defendant,
and the case was dismissed with prejudice upon the defendant's motion to
dismiss at the close of the City's case-in-chief?" (¶ 3)
The supreme court held that the municipal court proceeding in this
case constituted a trial under section 800.14(4) because the city
presented its case, the defendant had an opportunity to present his
evidence (even though he chose not to do so), and the matter was
judicially resolved on its merits. "We therefore conclude that the
municipal court proceeding in the instant case triggered the City's
statutory right to a new trial under Wis. Stat. § 800.14(4).
Accordingly, we reverse the decision of the court of appeals and the
order of the circuit court and remand the cause to the circuit court to
grant the City's request for a new trial" (¶ 4).
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County Jail Inmates - Liability of County for Medical Costs
Meriter Hospital Inc. v. Dane
County, 2004 WI 145 (filed 7 Dec. 2004)
The sheriff brought Gibson, an indigent county jail inmate, to the
hospital on Dec. 16, 1998, when Gibson became gravely ill. Some time
during the first three days of Gibson's hospitalization, the sheriff
informed the local prosecutor and Gibson's parole officer that Gibson
had been hospitalized. On Dec. 17, 1998, the Wisconsin Division of
Community Corrections cancelled its parole hold on Gibson. The next day
the state moved to dismiss the pending charges against Gibson. The
circuit court granted the motion, dismissed Gibson's pending criminal
charges, and ordered his release from custody. The Department of
Corrections followed up with an apprehension request that directed the
hospital to contact either the sheriff or a probation agent, so that
Gibson could be returned to custody after his release from the hospital.
However, when Gibson was released from the hospital, the sheriff did not
act on the apprehension request and, in fact, did not take Gibson back
into custody until several weeks after his release from the
Gibson's hospitalization lasted for 34 days with medical bills
amounting to $187,000. The county paid approximately $4,500 to cover the
first three days of the hospitalization. The hospital then filed suit
against the county to recover the remaining amount. A trial was held,
and the circuit court ruled that the county was liable to the hospital
for Gibson's hospital costs only up to the time the pending charges were
dismissed and the parole hold dropped. The court also held that the
apprehension request did not alter Gibson's status. The court of appeals
affirmed. In a unanimous decision authored by Justice Crooks, the
supreme court affirmed the court of appeals.
Wis. Stat. section 302.38 provides in pertinent part as follows: "(1)
If a prisoner needs medical or hospital care ... [the] superintendent or
other keeper of the jail or house of correction shall provide
appropriate care or treatment and may transfer the prisoner to a
hospital ... making provision for the security of the prisoner. ... (2)
The prisoner is liable for the costs of medical and hospital care
outside of the jail or house of correction. If the prisoner is unable to
pay the costs, the county shall pay the costs in the case of persons
held under the state criminal laws or for contempt of
court...." (emphasis supplied).
The supreme court concluded that a plain reading of section 302.38
does not require the county to pay Gibson's medical and hospital bills
for the period after the parole hold had been cancelled and the circuit
court had granted the state's motion to dismiss the pending charges
against him. "Gibson lost his prisoner status and was no longer `held'
under the criminal laws of Wisconsin, when the circuit court dismissed
the charges. We also conclude that Gibson's status did not change when
the Department of Corrections issued an apprehension request for him.
This request to bring Gibson into custody only had the effect of making
him a `potential prisoner,' and did not render him `held under the state
criminal laws or for contempt of court,' as set forth in§
302.38(2). In so holding, we decline to expand the County's liability
under § 302.38(1) and require it to pay for all of Gibson's care"
The court also held that the sheriff satisfied all requisite
statutory obligations in this case. Gibson was provided with security
pursuant to section 59.27 while he was considered a prisoner, and he was
provided with "appropriate care" when he was transferred from the jail
to the hospital, as required by section 302.38(1).
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