Vol. 79, 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
Tenured Faculty - Fair Hearing
Marder v. Board of
Regents, 2005 WI 159 (filed 29 Nov. 2005)
Following a hearing, the University of Wisconsin (UW) Board of
Regents terminated Marder, a tenured faculty member. The circuit court
reversed the board's decision but was itself later reversed by the court
The supreme court, in an opinion written by Justice Roggensack,
affirmed the court of appeals. Marder did not argue that there was
insufficient evidence to constitute just cause for his termination.
Rather, he argued that the board failed to accord him a fair hearing
under the contested case procedures of Wis. Stat. chapter 227, which
prohibit ex parte communications with the decision-maker and provide a
range of remedies. The court "conclude[d] that the provisions of §
36.13(5) and the rules the Board promulgated under Wis. Admin. Code
§ UWS 4, which are expressly authorized by law, set out the
pre-termination procedures to which Marder was due. The contested case
provisions of ch. 227 do not apply. This includes Wis. Stat. §
227.50(1), which comes into play only if the contested case provisions
of § 227.42(1) apply" (¶ 24).
The court then turned to procedural issues relating to alleged
improper ex parte communications between the campus chancellor, who
sought Marder's ouster, and one of the regents. The applicable
administrative rules are silent on ex parte communications, but "because
Marder has a due process right to notice and an opportunity to be heard
on the charges against him, a consultation outside of Marder's presence
may cause constitutional problems if during the consultation the
chancellor provided the Board with new facts on which the Board based
Marder's termination, even if such consultation does not conflict with
the terms of the administrative rule" (¶ 25) (citation omitted).
Under the case law, the court had to "determine whether Marder has
carried the burden to show that the three alleged ex parte
communications created an impermissibly high probability of actual bias
or introduced new information on which the Board based its decision to
(¶ 33). The first two contacts raised only speculation about
possible improprieties and thus as to these two communications, Marder
failed to carry the burden of proof, in light of the presumption that
government officials act with honesty and integrity (see
¶¶ 33, 38). As to the third contact, the supreme court
remanded the matter to the circuit court for a determination of whether
the chancellor presented new facts to the board just before its vote on
the question of terminating Marder (see ¶ 40).
Chief Justice Abrahamson and Justice Bradley did not participate.
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Contracts - Liquidated Damages - Public Policy
Rainbow Country Rentals
v. Ameritech Pub. Inc., 2005 WI 153 (filed 22 Nov. 2005)
Rainbow Rentals (Rainbow) contracted with Ameritech Publishing (API)
for a business listing in various editions of the yellow pages. API
omitted Rainbow's entire listing from the directories, and Rainbow sued
API for resulting damages. As one of its defenses, API asserted that a
liquidated damages clause in the contract limited its liability to the
amount set forth in the clause. Rainbow countered that the clause
violated public policy. The circuit court ruled that API's contract was
neither unconscionable nor violative of public policy and awarded
damages to Rainbow of about $5,200, in accordance with the clause.
The court of appeals certified the following question to the supreme
court: "Whether [the] court's holding in Discount Fabric House of
Racine, Inc. v. Wisconsin Telephone Co., 117 Wis. 2d 587, 345
N.W.2d 417 (1984), that an exculpatory clause in a yellow pages
advertising contract was unconscionable as against public policy is
still viable today given the changes that have occurred in the
telecommunications industry in the two decades since that decision"
The supreme court, in an opinion written by Justice Wilcox, affirmed
the circuit court. The supreme court held that "Discount Fabric
is still viable today. However, the case presented to us is factually
distinct from Discount Fabric in two important ways. First,
Ameritech does not possess a monopoly as Wisconsin Telephone did when
Discount Fabric was decided. Second, when comparing all of the
circumstances of this case with Discount Fabric, the clause at
issue is not exculpatory, but rather, a valid and enforceable stipulated
damages clause"(¶ 3). Rainbow had the opportunity to negotiate
higher stipulated damages than those "usually offered" by API in the
boilerplate contract, but it did not do so (see ¶ 27). The
court also held that the clause was reasonable when analyzed under a
multi-factor test, and that the situation here was clearly
distinguishable from a host of cases decided since Discount
Fabrics that concerned parties who inserted such language to avoid
all liability for death or serious bodily injury (see ¶
Justice Bradley dissented on the basis that the summary judgment
record raised a disputed issue of material fact.
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Satisfaction of Judgment Debt When Underlying Judgment Has
Been Discharged in Bankruptcy - Application of Wis. Stat. Section
Megal Dev. Corp. v.
Shadof, 2005 WI 151 (filed 8 Nov. 2005)
In 1994, Megal Development Corp. obtained a small claims judgment for
eviction and money damages in the amount of $52,000 against the Shadofs.
Pursuant to statute, the judgment subsequently became a lien on the
Shadofs' homestead property. In 2003, the Shadofs filed for Chapter 7
bankruptcy relief. They included the Megal judgment as a dischargeable
debt on Schedule D of their bankruptcy forms. The bankruptcy court
discharged the Shadofs' debts, including the debt represented by the
Megal judgment. Coming out of bankruptcy, the Shadofs' homestead equity
exceeded their $40,000 homestead exemption.
The Shadofs subsequently filed an application with the circuit court
to have the Megal judgment and judgment lien satisfied pursuant to Wis.
Stat. section 806.19(4). In pertinent part this statute provides that
"[a]ny person who has secured a discharge of a judgment debt in
bankruptcy ... may submit an application for an order of satisfaction of
the judgment and an attached order of satisfaction to the clerk of the
court in which the judgment was entered." The circuit court denied the
Shadofs' application for satisfaction of the judgment, and the Shadofs
appealed. The court of appeals certified the case to the supreme court,
which granted certification.
The first certified issue concerned "whether § 806.19(4)
requires the satisfaction of a judgment debt against a homestead, where
the underlying judgment has been discharged in bankruptcy, yet the
debtor's homestead equity exceeds the allowable homestead exemption, and
where the debtor failed to seek avoidance of the judgment lien in the
bankruptcy court (¶ 1)." The second issue was "whether, if §
806.19(4) does require the satisfaction of a judgment debt when the
underlying judgment has been discharged in bankruptcy, the statute is in
conflict with, and therefore preempted by, federal bankruptcy law"
In a unanimous decision authored by Justice Crooks, the supreme court
reversed the circuit court. It concluded that "[t]he plain language of
[Wis. Stat. § 806.19(4)] unambiguously provides that when a proper
application is received by the clerk and submitted to the judge for
signature, the only thing required for satisfaction of a judgment debt
and cessation of an associated judgment lien is that the underlying
judgment has been discharged in bankruptcy" (¶ 2). Megal argued
that because the Shadofs failed to seek an order under 11 U.S.C. §
522(f) (2004) to avoid the in rem judgment lien, the lien was not
discharged in bankruptcy and, therefore, neither the judgment nor the
judgment lien is eligible to be satisfied under section 806.19(4). The
supreme court disagreed. Said the court, "[h]ad the Wisconsin
Legislature intended to require avoidance under 11 U.S.C. § 522(f)
(2004) before a judgment and judgment lien could be satisfied through
state procedure, it could have done so. It did not" (¶ 21).
The court found substantial support in legislative history for its
interpretation of section 806.19(4). "The Wisconsin Legislature, on
multiple occasions, has demonstrated its intent to allow debtors to
obtain satisfaction of both a judgment and a judgment lien when the
underlying judgment has been discharged in bankruptcy" (¶ 34).
Finally, the court concluded that section 806.19(4) does not conflict
with, and therefore is not preempted by, federal bankruptcy law
(see ¶¶ 35-47).
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Search Warrants - "Good Faith" Exception to Exclusionary
Rule - Competency for Self-representation
Marquardt, 2005 WI 157 (filed 23 Nov. 2005)
This case involved a search warrant. The parties agreed that the
facts furnished in support of the warrant were insufficient to supply
probable cause for the search. The central question was whether the good
faith exception to the exclusionary rule should be applied to the
search. In a majority decision authored by Justice Bradley, the supreme
court answered in the affirmative.
In United States v. Leon, 468 U.S. 897 (1984), the U.S.
Supreme Court recognized an objective good faith exception to the
exclusionary rule in the warrant context. "Under Leon, evidence
seized by officers `reasonably relying on a warrant issued by a detached
and neutral magistrate' will not necessarily be suppressed. `In the
ordinary case,' the Court in Leon explained, `an officer cannot
be expected to question the magistrate's probable-cause determination or
his judgment that the form of the warrant is technically sufficient'"
(¶ 24) (citations omitted). The Leon Court went on to
describe four sets of circumstances under which the good faith exception
does not apply. One is the situation in which an officer could not
manifest objective good faith because the affidavit in support of the
warrant was "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable" (¶ 28)
(citation omitted). "[T]he good faith exception will not apply when the
warrant is based on an affidavit so lacking in indicia of probable cause
that a law enforcement officer - who ordinarily should not be expected
to second-guess the warrant-issuing judge - can be said to have
unreasonably relied on the warrant" (¶ 34). The court said that "an
`indicia' of probable cause is not the same as a probable cause
determination. Rather, the standard for `indicia' is less demanding. It
requires sufficient signs of probable cause, not probable cause per se"
(¶ 37). The court concluded that the warrant application contained
sufficient indicia of probable cause for Leon purposes.
The supreme court has added two requirements that must be met before
the good faith exception may be used in Wisconsin. Specifically, the
state must show that the process used in obtaining the search warrant
included 1) a "significant investigation," and 2) a "review by a police
officer trained in, or very knowledgeable of, the legal vagaries of
probable cause and reasonable suspicion, or [by] a knowledgeable
government attorney." State v. Eason, 2001 WI 98, ¶ 63,
245 Wis. 2d 206, 629 N.W.2d 625. In the present case only the first
Eason requirement was at issue. Said the court, "we recognize
... that a significant investigation for purposes of Eason
refers to more than the number of officers or hours devoted to an
investigation. In other words, as the State essentially acknowledges,
the nature and focus of the investigation are important" (¶ 54).
However, the requirement of a "significant investigation" does not
require a showing that the investigation yielded the probable cause that
would have been necessary to support the search at issue (see
¶ 53). The court concluded that the state showed compliance with
the requirements of Eason.
Lastly, the court addressed the defendant's assertion that the
circuit judge erred in finding him not competent to represent himself.
In Wisconsin, there is a higher standard for determining whether a
defendant is competent to represent himself than for determining whether
a defendant is competent to stand trial. See State v. Klessig,
211 Wis. 2d 194, 564 N.W.2d 716 (1997). In determining the defendant's
competence to proceed pro se, the circuit court may consider the factors
enumerated in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d
601(1980) (e.g., the defendant's education and fluency in English), in
addition to other factors. At the same time, if a request to proceed pro
se is to be denied the record must demonstrate an identifiable problem
or disability that may prevent a defendant from making a meaningful
defense (see ¶ 61).
In this case the supreme court concluded that "the record supports
the circuit court's determination that [the defendant] was not competent
to represent himself. We do not share [the defendant's] view that the
circuit court must always make an express finding as to which specific
problem or disability prevented a defendant from being able to
meaningfully represent himself. Our review of the record satisfies us
that the medical and psychological opinions in this case identified a
number of specific problems that could have prevented [the defendant]
from meaningfully presenting his own defense and that the circuit court
took these problems into account. Accordingly, we determine that the
court did not err in its decision on [the defendant's] competency to
represent himself" (¶¶ 68-69).
Chief Justice Abrahamson and Justice Butler filed an opinion
concurring in part and dissenting in part.
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Termination of Parental Rights - Fact-finding Hearings - 45
State v. Robert
K., 2005 WI 152 (filed 18 Nov. 2005)
This case concerned a termination of parental rights (TPR)
proceeding. Neither Robert K. (the father) nor his attorney objected in
September when the fact-finding hearing was scheduled for a date in the
following March. The fact-finding hearing was held more than 45 days
after the contested plea hearing. The fact-finding trial lasted five
days. The jury found grounds for termination, and the circuit court
terminated the parental rights of Robert K. to two of his children. The
court of appeals affirmed.
The supreme court, in an opinion authored by Chief Justice
Abrahamson, affirmed the court of appeals but on different grounds. It
held that "a continuance may be granted under Wis. Stat. §
48.315(2), independent of the other grounds for a continuance specified
in § 48.315(1), and ... the record in the present case establishes
good cause under § 48.315(2) for holding the fact-finding hearing
beyond the 45-day time period. Therefore, we conclude that the circuit
court did not lose competency to proceed with the fact-finding hearing.
Because we hold that good cause existed to hold the fact-finding hearing
more than 45 days after the contested plea hearing, we do not address
the issue upon which the circuit court ruled, that is, whether a
guardian ad litem's acquiescence in the circuit court's setting the
fact-finding hearing beyond the 45-day period fulfills the consent
requirement of Wis. Stat. § 48.315(1)(b)"( ¶58).
The court said that there was no issue of waiver, because case law
establishes that the 45-day statutory time period cannot be waived by a
failure to object (see ¶ 13). "Section 48.422(2) provides
that a circuit court shall set a date for a fact-finding hearing within
45 days of the hearing on the petition unless the necessary parties
agree to commence the hearing on the merits immediately. Failure to
comply with this statutory time period may result in the circuit court
losing competence to proceed" (¶ 17). Without dispute the scheduled
date was set for well after the 45-day period. The court said that "the
word `continuance' in Wis. Stat. § 48.315(2) is sufficiently broad
to encompass situations in which the fact-finding hearing is originally
scheduled beyond the statutory 45-day time period" (¶ 28), and that
calendar congestion and lawyers' scheduling conflicts may constitute
statutory good cause (see ¶ 30).
Turning to the record before it, the court found that good cause had
been shown. One key factor was the "sheer number of persons involved in
the hearings" (seven lawyers, two guardians ad litem, and four parents)
(¶ 38). The court was satisfied that the delay here "was no longer
than necessary" (¶ 53), but warned that "[n]ot all cases will
support a six-month time period between the plea hearing and the
fact-finding hearing" (¶ 54). "Before we conclude, we urge each
circuit court that relies on Wis. Stat. § 48.315(2) to cite the
statute on the record; to state the basis for concluding good cause
exists to continue, delay or extend a fact-finding hearing beyond the
45-day period between the plea hearing and the fact-finding hearing in a
TPR proceeding; and to explain that the fact-finding hearing was not
delayed longer than was necessary. In other words, the record should
reflect the circuit court's concern with meeting the mandatory statutory
time periods and protecting the rights of parents, children, and the
public by making clear under § 48.315(2) the factors that influence
its decision to delay, continue, or extend a hearing beyond the
mandatory time periods" (¶ 55).
Justice Wilcox, joined by Justices Prosser and Roggensack, concurred
but wrote separately to address the "problems of court congestion" and
how court congestion impacts good cause for a continuance (see
Termination of Parental Rights - Expert Testimony - Time
Limits for Initial Appearance - Indian Child Welfare Act
Brown County v. Shannon
R., 2005 WI 160 (filed 30 Nov. 2005)
The circuit court terminated the parental rights of petitioner
Shannon R. and the court of appeals affirmed. The issue that the supreme
court decided was whether the circuit court erred by excluding opinion
testimony of Shannon R.'s expert witness regarding the substantial
likelihood that Shannon R. will be able to meet the conditions
established for the safe return of her children to the home within the
12-month period following the Wis. Stat. section 48.424 fact-finding
hearing. The county had presented two experts who testified about the
In a majority opinion authored by Chief Justice Abrahamson, the
supreme court reversed. After quoting extensively from the trial record,
the supreme court concluded that the circuit court erroneously exercised
its discretion in ruling that Shannon R. had not laid a proper
foundation for qualifying a psychologist as an expert to testify as to
whether Shannon R. is likely to be able to meet the conditions for
return of her children within the relevant 12-month period. "The circuit
court erred by not considering all the relevant facts; by applying the
wrong legal standard; and by failing to demonstrate a rational process
to reach a reasonable conclusion" (¶ 39).
The supreme court further concluded that the exclusion of the
psychologist's testimony was prejudicial and reversible error. "In light
of the important constitutional right at stake, the State's interest in
an accurate decision, the fundamental fairness of giving a party the
opportunity to defend, and Shannon R.'s inability to present evidence on
an issue central to the outcome of the case, we hold that the circuit
court's erroneous preclusion of [the psychologist's] expert opinion
testimony (the only expert opinion testimony Shannon R. proffered on an
issue central to her defense) denied her the due process right to
present a defense and goes to the fundamental fairness of the
proceeding" (¶ 72).
The court also addressed an issue related to time limits in chapter
48 proceedings. Wis. Stat. section 48.315(1) provides that "the
following time period shall be excluded in computing time requirements
in this chapter: (c) Any period of delay caused by the disqualification
of a judge." The court held that "reassignment of a case to a different
judge because of docket congestion does not constitute disqualification
of a judge under Wis. Stat. § 48.315(1)(c)" (¶ 89).
[Editors' Note: Lawyers who handle termination of parental
rights cases involving Native American children will want to review
paragraphs 90 to 104 of this decision relating to the various proof
burdens that need to be applied when the jury decides issues arising
under the Wisconsin Children's Code and the Indian Child Welfare
Justice Roggensack filed a dissenting opinion that was joined by
Justices Wilcox and Prosser.
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Eminent Domain - Valuation - Evidence
Pinczkowski v. Milwaukee
County, 2005 WI 161 (filed 1 Dec. 2005)
The county condemned Pinczkow-ski's property for purposes of airport
expansion. Pinczkowski brought an action to challenge the amount of the
condemnation damages award. The jury awarded the plaintiff an amount
less than the amount of the condemnation award. The plaintiff appealed,
and the court of appeals affirmed the circuit court.
The supreme court, in an opinion written by Justice Bradley, affirmed
the court of appeals. The plaintiff unsuccessfully argued that the trial
judge erroneously excluded evidence of the selling prices of two
adjacent properties as well as a letter from a private party, Hertz, in
which Hertz stated its intent to purchase her home. The supreme court
said that according to "well-established precedent," the trial judge
properly excluded evidence concerning the adjacent properties because
both properties were purchased by the condemning authority. The court
said that this rule was amply supported by "sound public policy and
judicial economy" (¶ 20). "While the sales may have been voluntary
in the sense that the County had not yet commenced formal condemnation
procedures under Wis. Stat. § 32.05 (2003-04), the sales were
decidedly not voluntary in the sense relevant to the rationale of
market-skewing behind the Blick line of cases" (¶ 22).
Moreover, because the county board had publicly directed officials to
begin negotiations to purchase these properties, the court declined to
consider whether the adjacent sales fell into an ill-defined "exception"
(or "new rule") governing "voluntary" sales that the plaintiff
For the same reason, the trial judge properly precluded the
plaintiff's appraisers from relying on this same evidence despite the
capacity of experts to base opinions even on "inadmissible" evidence
provided it is "reasonably" relied upon (see ¶ 38 (citing
Wis. Stat. § 907.03)). "We determine that, given the rationale
behind the Blick line of cases, it makes no difference whether
[the plaintiff] sought to offer evidence of the sale price for the
adjacent properties directly or whether she sought to have her
appraisers rely on those prices as a basis for their estimates of value.
The adjacent property sales were inherently unreliable indicators of
market value and, in that sense, not comparable sales. Allowing evidence
of the properties' sale prices would have been practically certain to
confuse or mislead the jury. Likewise, because of their inherent
unreliability as an indicator of market value, such sales cannot
constitute facts or data of a type reasonably relied upon by experts in
the field in forming opinions or inferences" (¶ 39).
The supreme court also held that the trial judge properly excluded
the letter from Hertz, which had broached possibly purchasing the
plaintiff's property along with adjacent lots for its commercial (car
rental) purposes. "Hertz's letter of intent was speculative evidence of
fair market value in light of its preliminary and conditional nature.
This is apparent from the face of the letter. First, [the plaintiff]
failed to sign the letter before its expiration date. Second, the letter
indicated that even if signed by [the plaintiff], it was non-binding.
Third, the letter set forth contingencies, including inspection for
environmental conditions and `all other necessary government approvals.'
It also contained numerous strike-outs, leaving unclear whether Hertz
and [the plaintiff] had a meeting of the minds, even as to this
non-binding agreement. The circuit court aptly characterized the letter
as speculative and `one step removed from an offer'" (¶ 44).
Addressing the plaintiff's alternative argument that the Hertz letter
was relevant to another possible use of the property and hence its fair
market value, the supreme court held that the letter's exclusion was not
prejudicial because the plaintiff had adequately placed this "theory"
before the jury (see ¶ 48).
Finally, the court concluded that denial of the plaintiff's requested
replacement housing payment was reasonable. (The court's fact-intensive
application of administrative regulations and statutes will not be
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Sexually Violent Persons
Appeal - Supervised Release - Due Process -
Schulpius, 2006 WI 1 (filed 10 Jan. 2006)
Schulpius was committed as a sexually violent person pursuant to Wis.
Stat. chapter 980. The circuit court later ordered supervised release
but the release never took place. Schulpius moved to enforce the order,
but the circuit court denied the motion. The court of appeals upheld
denial of the motion. The supreme court, in an opinion written by
Justice Crooks, affirmed the court of appeals. The supreme court
addressed three issues in this "procedurally convoluted" case (¶
"First, is Schulpius entitled to outright release from his Wis. Stat.
ch. 980 (2003-04) commitment because the Department of Health and Family
Services (DHFS), in conjunction with Milwaukee County, was unable to
place him in an appropriate location for the period between the initial
supervised release determination and the circuit court's ultimate
determination that Schulpius is too dangerous for such placement?"
(¶1) The supreme court held that the issue was moot. In July 1997,
the circuit court had ordered Schulpius's supervised release, which the
state failed to accomplish, and in October 1999 the circuit court found
that "Chapter 980 was being unconstitutionally applied to Schulpius"
(¶ 20). The circuit court reconsidered the matter in November 2000
and determined that Schulpius was no longer appropriate for supervised
release. "Schulpius never appealed the November 29, 2000 order based on
the State's motion for reconsideration under Wis. Stat. §
807.06(1)(h). Rather, on November 26, 2001, Schulpius filed a motion to
enforce the circuit court's decision and order of October 27, 1999, and
for a final order to release Schulpius from the physical custody of the
DHFS" (¶ 23).
The supreme court held that the November 2000 order was a "final
order" that resolved all litigation between the parties. Thus, "when
Schulpius failed to appeal timely from the November 2000 order, he
waived his right to challenge the validity of that order" (¶ 26).
The waiver further resulted in the inapplicability of State v.
Morford, 2004 WI 5, which held that "when an individual committed
under Chapter 980 is awaiting supervised release, the appropriate
mechanism to revoke that supervised release is Wis. Stat. §
980.08(6m), rather than Wis. Stat. § 806.07(1)(h)" (¶ 24). For
similar reasons, the court found it unnecessary to address
Morford's retroactivity (see ¶ 27).
The court nonetheless considered several other moot issues related to
the defunct order for supervised release. First, the court held that
Schulpius's substantive due process rights had not been violated. "[T]he
failure to place Schulpius on supervised release, during the period
between the initial supervised release determination and the circuit
court's ultimate determination that Schulpius was too dangerous for such
placement, does not shock the conscience" (¶ 36). Yet, "Schulpius's
continued placement in secure confinement for an extended period after
the circuit court had repeatedly ordered he be placed on supervised
release, violated his right to procedural due process. However, release,
either outright or supervised, is not an appropriate remedy for
Schulpius at this time, where his substantive due process rights were
not violated, but where there was a violation of procedural due process"
Second, the court held that State v. Sprosty, 227 Wis. 2d
316, 595 N.W.2d 692 (1999) remained "valid" even though it was
inapplicable to Schulpius. The court held in Sprosty that "a
circuit court has the authority under Wis. Stat. § 980.08(5) to
order the DHFS to create appropriate services and facilities to
accommodate an order for supervised release, and that the DHFS has the
financial burden of paying for such programs and facilities in accord
with Wis. Stat. § 980.12" (¶ 42). But "[s]uch an order is
inappropriate at this time, under these circumstances. Such a facility
for supervised release would be meaningless for Schulpius at this time,
as he was determined to be inappropriate for supervised release in
November 2000, and that determination has not been changed. In addition,
we are satisfied that the DHFS has made substantial attempts to
establish a residential facility or dwelling that would enable
individuals committed under Chapter 980, such as Schulpius, to be placed
on supervised release in Milwaukee County" (¶ 43). Finally, the
court declined to address whether other remedies might be appropriate
for other individuals committed under chapter 980 under "different
circumstances" (see ¶ 52).
Periodic Exam - Remedy
Beyer, 2006 WI 2
(filed 10 Jan. 2006)
Beyer was ordered committed as a sexually violent person under Wis.
Stat. chapter 980. The court of appeals certified to the supreme court
two issues concerning the circuit court's commitment order. The supreme
court, in an opinion written by Chief Justice Abrahamson, affirmed the
The first issue was "whether the due process guarantee of the
Fourteenth Amendment . . . has been violated by a delay of over 22
months in the present case between the time the first annual periodic
examination report on Beyer was submitted to the circuit court under
Wis. Stat. § 980.07 and the circuit court's probable cause hearing
under Wis. Stat. § 980.09(2)(a) to determine whether facts exist
that warrant a hearing on whether Beyer is still a sexually violent
person" (¶ 2).
Summarizing the record, the court held that a due process violation
had occurred: "No reason appears on the record to justify the delay in
the circuit court's appointment of counsel. The circuit court was
responsible for a delay that meant the probable cause hearing could not
have been held until nine to 13 months after the DHFS provided the
circuit court with Beyer's first annual periodic examination report.
This delay significantly weakened the protection of the annual periodic
examination and Beyer's right to be heard at a meaningful time. Indeed,
in the present case, Beyer was permitted but a single probable cause
hearing on both his first and second annual periodic examination
reports. Regardless of whether the 13 months of delay were caused by the
DHFS, the circuit court, the circuit court judge's assistant, the
attorney general's office, Beyer's attorney, or some combination of
them, the delay was unreasonably long because it deprived Beyer of his
due process right to be heard at a meaningful time" (¶¶
The second issue concerned the appropriate remedy for such due
process violations. The court held that discharge was manifestly not an
appropriate remedy (see ¶ 50). "In the present case, when
the circuit court failed to take prompt action to appoint counsel and an
independent examiner and hold a probable cause hearing under Wis. Stat.
§ 980.09(2), Beyer should have moved for a writ of mandamus or a
supervisory writ to compel the circuit court to take immediate action.
These remedies help ensure that a ch. 980 committee receives the process
due to him while protecting the public from the discharge of dangerous
persons and promoting effective treatment of sexually violent persons"
The chapter 980 "committee" (i.e., the person committed),
however, does not bear the entire "onus" of assuring compliance with the
law. Rather, the Department of Health and Family Services, the
Department of Justice, and the circuit courts "should ensure prompt
annual judicial review of ch. 980 committees' continued detention"
"The DHFS can assist the circuit court in efficient case management
by diligently adhering to the procedures and time limits set forth in
ch. 980. As the agency charged with the custody, care, and control of
ch. 980 committees, the DHFS plays an essential role in the annual
periodic examination process. A circuit court must take appropriate
steps to institute case management techniques by which the circuit court
is advised of the critical steps in reviewing an annual periodic
evaluation report, that is, the appointment of an attorney and
independent examiner and the holding of a probable cause hearing. Case
management is essential to the efficient functioning of judicial review
of commitments. We refrain from setting out a specific procedure circuit
courts must follow to implement a `tickler' and follow-up system that
prompts the circuit court to assure that the matter is proceeding
promptly. We leave the implementation of the case management system to
circuit courts and administrative staff. The circuit courts should not,
however, rely on communication from the ch. 980 committee to keep the
probable cause hearing process moving along promptly. This case
demonstrates the problems that occur when no `tickler' and follow-up
system is in place or when any such system fails and the circuit court
neglects to hold a probable cause hearing at a meaningful time in
violation of the due process rights of a ch. 980 committee"
(¶¶ 58-59). The court also stressed the importance of prompt
appointments of counsel by the State Public Defender's office and
commended the attorney general's use of "Paulick letters" that
remind circuit courts to schedule probable cause determinations
(see ¶¶ 60-61).
Justice Roggensack, joined by Justice Wilcox, concurred but wrote
separately to emphasize that Beyer's due process rights had not been
violated because he had not shown sufficient state action that
prejudiced him at the delayed probable cause hearing. Justice Prosser
did not participate.
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Excessive Force - Burden of Proof
Leatherberry, 2005 WI 163 (filed 6 Dec. 2005)
Shaw was arrested after a traffic-related altercation. She then sued
law enforcement officers and alleged that the defendants used excessive
force while she was being booked at the jail, particularly in conducting
an alleged forcible "strip search." During the trial, the judge
instructed the jury that Shaw's civil rights claims under 42 U.S.C.
§ 1983 were subject to the middle burden of proof (clear and
convincing evidence). The jury found in favor of the defendants on the
issue of liability. Shaw appealed to the court of appeals, which
certified the following question to the supreme court: "What standard of
proof applies to cases alleging excessive use of force by the police
brought pursuant to 42 U.S.C. § 1983 (1994 & Supp. III 1998) in
Wisconsin courts?" (¶ 2)
The supreme court, in an opinion written by Justice Wilcox, concluded
that "the Supremacy Clause of the United States Constitution requires
Wisconsin courts to apply the lowest burden of proof - preponderance of
the evidence - in civil rights actions under 42 U.S.C. § 1983,
alleging excessive use of force by police personnel" (¶ 3). In
light of controlling federal precedent, "the clear and convincing
evidence burden of proof undermines the remedial purpose of § 1983
just as much in an excessive force case as it does in a case such as
[Crawford-El v. Britton, 523 U.S. 574 (1998)], which concerned
the failure to deliver a prison inmate's papers" (¶ 28). "All told,
our review of federal law leads us to the conclusion that if Shaw had
brought this cause of action in federal court, the appropriate burden of
proof would have been the lower civil burden" (¶ 30). "Inasmuch as
the burden of proof is substantive, we hold that under the Supremacy
Clause, the lower federal burden of proof applies in § 1983
excessive force cases in state court" (¶ 31). Moreover, while a
higher burden of proof "may not necessarily affect the outcome of every
case, it does disrupt the federal interest in uniformity" (¶
The court remanded the case for a new trial on the issue of
liability. The court said that the damages issue did not need to be
retried, because the first jury had been properly instructed on that
issue according to the ordinary burden of proof.
Medical Malpractice - Disabled Child - Statute of
Haferman v. St. Clare
Healthcare Found., Inc., 2005 WI 171 (filed 30 Dec. 2005)
Toby was born in February 1991. In September 2002, his parents filed
suit against various health care providers alleging that Toby sustained
a developmental disability as a result of the defendants' negligence
when Toby was born. Rejecting the defendants' contention that the action
was barred by the statute of limitation, the circuit court ruled that it
was permissible under Wis. Stat. section 893.16. The court of appeals
reversed in a split decision. The majority held that the plain language
of section 893.16 "exempted children who sue health care providers from
the statute's tolling provisions" (¶ 13), and that Toby's action
was governed by the general, three-year statute of limitation, Wis.
Stat. § 893.55(1)(a), which barred the claim.
The supreme court, in an opinion written by Justice Bradley, reversed
the court of appeals. The court considered whether Wis. Stat. section
893.16, 893.55, or 893.56, alone or in tandem, governed claims against a
health care provider alleging injury to a developmentally disabled child
(see ¶ 15). The court ultimately concluded that none of
these statutes governed the claim. After closely considering the plain
language of the statutes and their history, the court was not convinced
by the parties' arguments that it had to "confess error" or "retract"
interpretations offered in prior cases. It also "decline[d]" to "rewrite
either § 893.16 or § 893.56" (¶ 52) and rejected the
court of appeals' admittedly "troubling" solution that the claim was
controlled by the general three-year statute in section 893.55 (¶
The lacunae led to a single conclusion: "the legislature has not
provided a statute of limitations for claims against health care
providers alleging injury to a developmentally disabled child. This
determination is the only determination the court is able to reach
without either rewriting the statutes or working an absurd and illogical
result" (¶ 58). The court closed with the observation that even in
the absence of a statute of limitation the defense of laches is
available in an appropriate case (see ¶ 60).
Justice Prosser, joined by Justices Roggensack and Wilcox, dissented.
They concluded "that a developmentally disabled person must bring his or
her action within one of the time limitations under Wis. Stat. §
893.55, or by the time the person reaches the age of 10 years, whichever
period is longer" (¶ 62).
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