Vol. 79, No. 4, April
Court of Appeals Digest
This column summarizes selected
opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and
Prof. Thomas J. Hammer invite comments and questions about the digests.
They can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Sexual Assault - Statutory Definition of "Sexual
Harvey, 2006 WI App 26 (filed 4 Jan. 2006) (ordered published
22 Feb. 2006)
The defendant sought to withdraw his guilty plea to a charge of
third-degree sexual assault. He claimed that the state failed at the
guilty plea hearing to establish a factual basis for the sexual
intercourse element of the offense. The circuit court denied the motion.
In a decision authored by Judge Nettesheim, the court of appeals
In Wisconsin, third-degree sexual assault includes the offense of
sexual intercourse without consent. Wis. Stat. § 940.225(3). The
statute defines "sexual intercourse" to include several forms of
conduct, including cunnilingus. See Wis. Stat. §
940.225(5)(c). This was the type of assault alleged in this case. At the
guilty plea hearing the state used the criminal complaint and
preliminary hearing testimony to establish a factual basis for the plea.
The complaint and the testimony alleged oral contact by the defendant
with the victim's genital area. The defendant claimed that this evidence
was insufficient because it did not show "stimulation" of the victim's
clitoris or vulva, which is designated an element of the crime by such
authorities as the standard jury instructions. See Wis
The court of appeals held that evidence of such stimulation is not
required by the statute (see ¶ 14). "We conclude that a
definition of cunnilingus that suggests the victim must be stimulated
misrepresents the legislative intent to recognize sexual assault as a
crime of violence and to protect victims of those crimes. Given the
legal significance of the term `cunnilingus' in our sexual assault
statute, we think a better resource [for a definition of the term] is
Black's Law Dictionary 380 (6th ed. 1990) which more neutrally defines
cunnilingus as `[a]n act of sex committed with the mouth and the female
sexual organ.'" (¶ 17). Accordingly, the court of appeals held that
the circuit court was correct when it found that the allegations in the
criminal complaint and the testimony at the preliminary hearing
furnished an adequate factual basis for the defendant's guilty plea to
the crime of third-degree sexual assault.
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UIM - Exclusions - Secondary
Dempich v. Pekin Ins.
Co., 2006 WI App
24 (filed 26 Jan. 2006) (ordered published 22 Feb. 2006)
Dempich was injured in a two-vehicle accident while he was driving a
vehicle owned by his employer. Dempich's employer carried worker's
compensation (WC) insurance with Pekin Insurance Co., which also
provided underinsured motorist (UIM) coverage of $100,000 per person and
$300,000 per accident. The Pekin policy included a reducing clause and
an "other insurance" provision. Dempich himself carried UIM insurance
through State Farm. Dempich's policy contained the same limits, reducing
clause, and "other insurance" provision as the Pekin policy. Dempich
received about $77,000 in WC benefits and $50,000 (the liability limits)
from the other driver's insurer. After adjusting for sums reimbursed to
Pekin by Dempich, the circuit court calculated that Dempich's net
recovery was $109,000. Dempich filed separate UIM claims with Pekin and
State Farm for $100,000. Pekin denied the claim based on its reducing
clause, and State Farm denied the claim on the ground that its coverage
was secondary to any amounts paid by the primary insurer, Pekin.
Dempich brought a declaratory judgment action and asked the court to
declare that "Pekin and State Farm were each liable to [Dempich] for the
$100,000 UIM limits of their respective policies" (¶ 6). The
circuit court ruled that Pekin's reducing clause was valid. As to State
Farm, the circuit court ruled that the reducing, excess, and
anti-stacking clauses, when read together, created ambiguity. The court
held that Dempich was entitled to $90,475 under the UIM coverage part of
State Farm's policy.
The court of appeals, in an opinion authored by Judge Dykman,
affirmed in part and reversed in part. Addressing Dempich's
cross-appeal, the court affirmed the circuit court's grant of summary
judgment to Pekin. The court of appeals held that the reducing clause
was "unambiguous within the context of the policy" and, as applied here,
it reduced Dempich's available UIM coverage to $0 (¶ 2). With
respect to the policy's declarations page, the court's "role is not to
set `aspirational goals' or `demand perfection' in draftsmanship, but to
determine if a policy as written is susceptible to more than one
reasonable interpretation" (¶ 15).
The court then turned to the claim against State Farm. The State Farm
policy provided excess coverage. The court of appeals "conclude[d] that
the anti-stacking and excess clauses of State Farm's insurance policy
are contextually unambiguous and enforceable. Consequently, application
of the anti-stacking and excess clauses leaves [Dempich] with no
available UIM coverage under [the] State Farm policy" (¶ 1).
Dempich contended "the anti-stacking clause is ambiguous because it does
not clearly state whether it prevents State Farm's limits from being
added to a second UIM policy's limits even when, as here, the second
insurer has not paid its limits or any portion thereof. We conclude that
whether the second insurer has paid is irrelevant under the language of
the policy" (¶ 19).
The court of appeals also "conclude[d] that a reasonable insured
would not consider the policy apart from the anti-stacking and excess
clauses, and would consequently apply their unambiguous terms to
conclude that no UIM coverage was available under State Farm's secondary
policy. Under the circumstances of this case, the anti-stacking and
excess clauses, not the reducing clause, define the extent of available
UIM coverage under State Farm's policy. Moreover, State Farm is not
required to clearly state the possibility of $0 secondary coverage to
avoid ambiguity" (¶ 30).
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Police Disciplinary Hearings - Officer's Right of
Confrontation and Access to Potential Witnesses
Sliwinski v. Milwaukee
Bd. of Fire & Police Comm'rs, 2006 WI App 27 (filed 24 Jan.
2006) (ordered published 22 Feb. 2006)
The plaintiff and other Milwaukee Police Department (MPD) officers
were implicated in an alleged conspiracy to steal drug money. They were
caught as a result of an FBI sting operation that had been launched on
information that another detective (Bonilla) had been stealing drug
money. On certiorari review the circuit court upheld a decision of the
Board of Fire and Police Commissioners of the City of Milwaukee (the
board) discharging the plaintiff from his job as an MPD detective. The
plaintiff appealed to the court of appeals, contending that during his
disciplinary hearing the board denied him his rights to confront and
have access to potential witnesses who might corroborate his assertions
of innocence. In a decision authored by Judge Fine, the court of appeals
agreed with the plaintiff. It reversed the circuit court and remanded
the matter for a new hearing.
The court of appeals said that the plaintiff was entitled at his
hearing to the full panoply of due process protections, which include at
a minimum the opportunity to confront and cross-examine adverse
witnesses. As part of the due-process right to confrontation, which
applies to hearings held to determine whether discipline imposed on
police or fire officers is justified, persons subject to discipline by
their departments have rights of access to witnesses with potentially
exculpatory evidence (see ¶ 13).
At the hearing in this case the plaintiff's attorney attempted to
question the FBI agent in charge of the sting operation about the
identity of the people who were at the scene of the sting. The board's
hearing examiner excluded this evidence on relevancy grounds following
objection by the police department's lawyer. The appellate court
concluded that this was error. Said the court, "the `identity' of those
who might have been present at the sting scene and therefore able to
affirm or negate the Department's circumstantial evidence supporting
Bonilla's testimony that [the plaintiff] conspired with Bonilla and
[another officer] to take some of the bait money is not only highly
`relevant' because it goes to the heart of the underpinnings of the
Department's dismissal of [the plaintiff] from his job ... but, as
we have seen, it is also within the core of [the plaintiff's] right to
due-process fundamental fairness. Thus, the hearing examiner did not
apply the correct legal standard when he ruled that the evidence was not
relevant" (¶ 15).
Property Taxes - Statutory Exemption for YMCA
Lake Country Racquet
& Athletic Club Inc. v. Morgan, 2006 WI App 25 (filed 26
Jan. 2006) (ordered published 22 Feb. 2006)
Several for-profit health clubs (the plaintiffs) appealed from a
partial summary judgment and a summary judgment dismissing their
constitutional challenges to the portion of Wis. Stat. section
70.11(12)(a) that exempts from taxation property owned by Young Men's
Christian Associations (YMCAs). The plaintiffs contended that these
provisions violate the ban on private legislation in article IV, section
18 of the Wisconsin Constitution and also violate the equal protection
guarantees of the Wisconsin and United States Constitutions. In a
decision authored by Judge Dykman, the court of appeals rejected these
challenges and affirmed the circuit court's judgments.
Before adoption of the 2001 budget bill by the Wisconsin Legislature,
the property tax status of YMCAs was determined by local tax assessors'
evaluation of their benevolent status under Wis. Stat. section 70.11(4)
(1999-2000). Historically, individual assessors had exempted local YMCAs
from property taxes under this statute. In early 2001, companion bills
were introduced in the state Senate and Assembly adding YMCAs to the
list of national benevolent organizations exempted from property
taxation under Wis. Stat. section 70.11(12)(a). The YMCA exemption was
adopted by the legislature as a part of the budget bill.
The plaintiffs argued that section 70.11(12)(a) violates the state
constitution's prohibition on private legislation. Article IV, section
18 of the Wisconsin Constitution provides that "[n]o private or local
bill which may be passed by the legislature shall embrace more than one
subject, and that shall be expressed in the title." Employing a two-part
analysis that is required when this type of challenge is presented, the
appellate court first concluded that the process used by the legislature
was adequate to entitle the bill to the presumption of constitutionality
usually afforded legislative enactments (see ¶ 20).
The court then held that the plaintiffs did not show beyond a
reasonable doubt that the statute does not relate to a state
responsibility of statewide dimension, or that its passage would not
have a direct and immediate impact on a statewide concern or interest
(see ¶ 28). "We conclude the YMCA exemption relates to a
statewide responsibility of statewide dimension. Whether to exempt
property of certain benevolent organizations is a responsibility of the
state. Because YMCAs and YWCAs are located in communities throughout
Wisconsin and their programs serve thousands of individuals, whether
these particular entities are exempt from taxation is an issue of
statewide dimension. We also conclude that the statute has an immediate
and direct [e]ffect on a specific statewide concern or interest. Whether
YMCAs are exempt from property taxation directly and immediately affects
the resources available to YMCAs to provide benevolent programming to
local communities" (¶¶ 29-30).
The court of appeals also rejected the plaintiffs' claim that the
YMCA exemption contravenes the equal protection guarantees of the
Fourteenth Amendment and article I, section 1 of the Wisconsin
Constitution. A classification made by the legislature that does not
concern a suspect class or implicate a fundamental right must bear a
rational relationship to a legitimate government interest. Before
considering whether the classification is rationally related to a
legitimate government interest, however, a court must answer two
threshold questions: "first, did this legislation create a distinct
classification of citizens; and, second, if so, did this legislation
treat the class significantly differently from all others similarly
situated?" (¶ 33) The appellate court found that the plaintiffs'
equal protection claim failed at this preliminary stage.
Said the court, "[t]he statute creates a distinct classification by
exempting the YMCAs from taxation, thereby meeting the first test.
However, [the plaintiffs have] not shown that for-profit health clubs
and the YMCAs are `similarly situated.' YMCAs are benevolent
organizations; the plaintiffs are for-profit businesses. Each has a very
different mission. As the YMCAs note, their eleemosynary mission sets
them apart from for-profit health clubs. The for-profit health clubs and
YMCAs are not sufficiently alike for [the plaintiffs'] equal protection
claim to pass this threshold inquiry" (¶ 34).
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Eminent Domain - Comparable Replacement
City of Janesville v.
CC Midwest Inc.,
2006 WI App 21 (filed 26 Jan. 2006) (ordered published 22 Feb. 2006)
The city of Janesville started this action to remove a company, CC
Midwest, from property the city had acquired through eminent domain. The
city also sought a declaration that it had fulfilled its obligation
under Wis. Stat. chapter 32, particularly its duty to provide a
comparable replacement property before requiring CC Midwest to vacate.
The circuit court granted a declaratory judgment in the city's favor and
also issued a writ of assistance directing the sheriff to remove CC
Midwest from the property.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. "The issue on appeal is whether the circuit court correctly
concluded that the City had met its obligation under Wis. Stat. §
32.05(8)(b) and (c) to make available to CC Midwest a comparable
replacement property before requiring CC Midwest to vacate" (¶ 1).
The court "conclude[d] there is nothing in the language of Wis. Stat.
§ 32.19(3) or (4m), or any other subsection of Wis.
Stat.§§ 32.05 or 32.19, that supports the City's position that
it need not make available a comparable replacement property meeting the
definitions of § 32.19(2)(b)-(d), but instead need only identify
property that could be made comparable and offer the payments required
by § 32.19(3) and (4m)" (¶ 17).
Nor did the case law support the city's position. "A requirement that
a condemnor identify a comparable replacement property meeting the
applicable definition in Wis. Stat. § 32.19(2)(b)-(d) before making
an occupant vacate does not impose an `open-ended' financial obligation
on the condemnor and does not render the provisions for payments in
§ 32.19 meaningless. It is not inconsistent for the legislature to
provide that an occupant may not be required to vacate unless the
condemnor has identified a comparable replacement property meeting the
statutory definition, even though the condemnor's financial obligations
to assist the occupant are limited by the provisions for payments in
§ 32.19" (¶ 28).
In closing, the court acknowledged that requiring a condemnor to
identify a comparable replacement property meeting the standards of
section 32.19(2)(b)-(d) "may impose significant impediments to public
projects in cases where no such property exists[,]" but it is the
legislature's responsibility to balance competing policies and the
result here is not an "absurd" construction of the statute (¶
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Petition Decision - District Attorney "Input"
Bell, 2006 WI App
30 (filed 18 Jan. 2006) (ordered published 22 Feb. 2006)
The court of appeals, in a decision authored by Judge Anderson,
affirmed Bell's commitment as a sexually violent person under Wis. Stat.
chapter 980. Bell's chief complaint was that a district attorney's
office urged the Department of Corrections (DOC) to refer his case for a
chapter 980 petition. "Bell argues that allowing local district
attorneys to have input in an agency's decision on whether to file a ch.
980 petition subverts the legislative intent to insulate the decision to
file a petition from political pressures and permits the careful
screening process established by the legislature to be rendered
meaningless" (¶ 9).
The court found that neither Bell's statutory rights under chapter
980 nor his due process rights had been violated. "The threshold
decision of whether a petition should be filed remains in the
experienced and able hands of the agency with jurisdiction and outside
of the political process. A district attorney may contact the agency to
seek clarification of the Wis. Stat. ch. 980 evaluator's determination,
to correct factual mistakes, to provide new or additional information,
or to ask for a second opinion with a different evaluator. However . . .
the agency can independently exercise its judgment and choose to ignore
the district attorney's efforts or to decline the district attorney's
request for a second evaluation if the agency determines that these
efforts and requests are improperly politically motivated. Further, even
if the agency accepts an invitation to obtain a second evaluation, the
agency can thereafter refer the case to the DOJ [Department of Justice]
for commitment proceedings or it can adhere to its original decision not
to request that the DOJ file a petition" (¶ 15). The record
revealed no evidence that the district attorney's office had "forcefully
usurped the authority of the DOC and effectively made the commitment
decision on its own" (¶ 18). Thus, Bell's due process rights were
Economic Loss Doctrine - Contribution - Expert
Trinity Lutheran Church
v. Dorschner Excavating Inc., 2006 WI App 22 (filed 12
Jan. 2006) (ordered published 22 Feb. 2006)
Trinity Lutheran Church (Trinity) hired several contractors to build
an addition to the church. A broken water lateral flooded the church and
caused extensive damage. Trinity and its property insurer sued for
recovery. Trinity had hired Oudenhoven Construction Inc. (OCI) to
coordinate work among the subcontractors but not to supervise them. OCI
hired a plumbing company, which in turn hired Baumgart Excavating to
install the water and sewer laterals. Trinity itself, without OCI's
involvement, hired Dorschner Excavating to lay the new building's
footings. Expert testimony established that the lateral had been broken
by a backhoe, a machine used only by Baumgart and Dorschner. Trinity
sued Dorschner, which in turn filed a third-party complaint against
Baumgart and OCI. A jury found causal negligence as follows: Dorschner,
20 percent; OCI, 60 percent; and Baumgart, 20 percent. Following complex
postverdict motions, the trial court permitted Trinity to amend its
pleadings to include negligence claims against OCI and Baumgart.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. (The sufficiency of the evidence was also attacked but this
issue will not be discussed further.) First, the court of appeals held
that Dorschner's negligence claim against OCI was not barred by the
economic loss doctrine. It was undisputed that OCI and Dorschner had no
contractual relationship and thus were "`strangers' to each other who
happened to be working side-by-side on a common project, not parties who
had had an opportunity to `allocate economic risk by contract' between
them" (¶ 18). Swimming in the seas of case law metaphors, the court
concluded that "[i]t may well be that, where parties are linked to each
other by contract, the economic loss doctrine may be invoked to avoid
drowning contract law in `a sea of tort.' However, when there is no
contractual relationship of any kind between two parties, it is equally
important to prevent an allegedly injured party from `fall[ing] between
the stools of tort and contract.' Thus, we conclude that the economic
loss doctrine does not bar Dorschner from obtaining a judgment for
contribution from OCI on account of the latter's negligence that
contributed to the loss at issue" (¶ 20).
Second, the court of appeals held that neither did the economic loss
doctrine preclude Trinity's (belated) claim against OCI, as it was one
primarily for services, not goods. "Trinity points out that the contract
between it and OCI was not introduced at trial and the testimony
regarding the purpose of their contract was limited. The circuit court
concluded that the contract between Trinity and OCI was predominantly
one for services, those being the overall coordination of the
construction project. Because the economic loss doctrine is in the
nature of an affirmative defense against a claim based in tort, we
conclude that it was OCI's burden to introduce its contract with Trinity
and to demonstrate that its predominant purpose was to supply Trinity
with a product, not with services. OCI has not met this burden on the
present record, and thus, we cannot conclude that the Trinity-OCI
contract was predominantly one for other than construction coordination
services, as the trial court concluded. Moreover, with respect to OCI's
conduct that is specifically alleged to have occasioned Trinity's loss
(i.e., negligence in coordinating the excavation services supplied by
Dorschner), OCI was plainly providing a service, not a product, to
Trinity" (¶ 25).
Third, the court of appeals held that expert testimony or, more
precisely, additional expert testimony, was not needed to establish
OCI's negligence. "Although some aspects of building construction might
well require expert testimony before a jury could properly comprehend
and assess claims of negligence and causation, the claims against OCI in
this case are not of that type. As [established by prior case law],
`[o]ne does not need to be an expert to be able to determine whether'
the location of a water pipe should have been marked or its integrity
tested following excavation work above it" (¶ 28).
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