Vol. 79, No. 9, September
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)
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Judicial Review of Agency Decisions - Governmental Entity to be
Named and Served as Respondent
All Star Rent A Car Inc.
v. Wisconsin Dep't of Transp., 2006 WI 85 (filed 6 July
All Star Rent a Car Inc. is a licensed motor vehicle dealer that
purchases damaged cars and sells them after making repairs. The
Wisconsin Department of Transportation (DOT), which is responsible for
licensing motor vehicle dealers, filed a complaint with the Division of
Hearings and Appeals (DHA) to revoke All Star's license. It also denied
All Star's application for renewal of its license. All Star filed a
request with the DHA for a hearing to review the license denial. The DHA
combined the revocation proceeding and the nonrenewal proceeding for a
contested case hearing. Ultimately, the DHA administrator issued an
order that affirmed the denial of All Star's license renewal and revoked
its motor vehicle license. Attached to the DHA's final decision was a
notice of All Star's right to judicial review of its decision. The
notice specified that "[a]ny petition for judicial review shall name the
Division of Hearings and Appeals as the respondent" (see ¶
All Star petitioned the Dane County Circuit Court for judicial review
of the DHA's decision pursuant to Wis. Stat. section 227.52. In its
petition, All Star named the DOT as the respondent, and it served the
petition on the DOT and the Wisconsin Attorney General. All Star did not
name or serve the DHA. The circuit court dismissed All Star's petition
because All Star failed to name and serve the DHA as the respondent,
which the court concluded was required by Wis. Stat. section
The court of appeals reversed. It concluded that the relevant
statutes were ambiguous in prescribing which administrative entity All
Star was required to serve and, as a result, All Star's action in naming
and serving the DOT, but not the DHA, was reasonable under the
circumstances. See 2004 WI App 198.
In a majority decision authored by Justice Prosser, the supreme court
reversed the court of appeals. Said the court, "We agree with the court
of appeals that the relevant statutes are ambiguous. We also recognize
that All Star was required to serve DOT as a party under Wis. Stat.
§ 227.53(1)(c). Nevertheless, we conclude that All Star's failure
to follow the instructions in the `Notice' of review rights appended to
DHA's written decision - instructions that directed All Star to name DHA
as respondent in a notice that clarified the confusing statutes - was
not reasonable" (¶ 1). "When an agency appends a notice to its
decision and the notice clearly directs a party how to appeal, the
notice should remove any confusion created by the statutes about whom to
name and serve" (¶ 47). The supreme court held that because it was
not reasonable for All Star to ignore the directive in the notice to
name and serve the DHA as respondent, the circuit court properly
determined that it lacked competency to hear All Star's petition
(see ¶ 52).
Justice Roggensack filed a dissenting opinion that was joined by
Top of page
Sanctions - Contempt - Privileges
Rongstad, 2006 WI 105 (filed 13 July 2006)
Julie Lassa was a candidate for elective office. She sued Todd
Rongstad and others based on a political mailer that criticized her.
Rongstad appealed a judgment that adopted the parties' settlement
agreement, under which Lassa dismissed her claims and Rongstad agreed to
pay $65,000 in attorney fees and forfeitures as sanctions for failing to
comply with discovery orders. Rongstad had refused to disclose certain
information demanded during discovery on grounds of privilege
(constitutional and evidentiary).
In an opinion authored by Justice Bradley, the supreme court affirmed
the circuit court. There are four parts to the court's decision, which
the court summarized as follows: 1) "In defamation cases, circuit courts
should ordinarily decide a pending motion to dismiss for failure to
state a claim before sanctioning a party for refusing to disclose
information that would identify otherwise-anonymous members of an
organization. Under the circumstances here, however, the circuit court
did not erroneously exercise its discretion in compelling discovery and
imposing sanctions before deciding Rongstad's motion to dismiss" (¶
2) "The circuit court properly rejected Rongstad's assertion of
privilege under the balancing test of the NAACP line of cases
because Rongstad failed to make the required preliminary factual showing
to support his assertion" (id.). 3) Rongstad failed to
demonstrate the applicability of the expert witness privilege recognized
by Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999)
4) "We reject Rongstad's challenge to the severity of the $65,000 in
attorney's fees and forfeitures because the circuit court did not set
that amount - the parties did by stipulation. Rongstad cannot claim that
the amount of $65,000 has no rational relationship to the harm suffered
or that the court erroneously exercised its discretion in setting the
amount. Rather, the issue of the amount of monetary sanctions was
pending before the court when the parties stipulated to $65,000. We also
determine that Rongstad's challenge to the sanction of a default
judgment on liability is moot under the parties' settlement agreement"
Finally, the court declined "to exercise [its] superintending
authority to establish an interlocutory appeal as a matter of right in
defamation cases involving discovery sanctions that raise questions of a
constitutional privilege" (¶ 91).
Justice Butler concurred on most issues (see ¶ 95), but
concluded that because the circuit court dismissed the defamation claim
with prejudice, the supreme court lacked jurisdiction to "consider the
merits of Lassa's defamation claim, and Rongstad's assertion of any
privilege with respect to that claim, including whether the circuit
court properly imposed sanctions for a violation of pretrial discovery
orders" (¶ 96).
Justice Prosser dissented on the ground that this was a "SLAPP suit
masquerading as a defamation case"(¶ 108), which chilled First
Justices Wilcox, Crooks, and Roggensack did not participate.
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Damages - Economic Loss - Insurance
1325 North Van Buren LLC
v. T-3 Group Ltd., 2006 WI 94 (filed 11 July 2006)
1325 North Van Buren LLC and T-3 Group Ltd. entered into a 100-page
comprehensive contract under which T-3 agreed to renovate into a
condominium complex an industrial warehouse owned by 1325. The work was
not completed on time, and 1325 then declared T-3 in default and claimed
millions of dollars in damages. T-3 carried commercial general liability
(CGL) coverage through Indiana Insurance Co. and professional liability
coverage through another insurer, Westport. Because T-3 ceased doing
business, 1325's only recovery was through the insurance policies. The
circuit court dismissed 1325's tort claims against T-3 based on the
economic loss doctrine and ruled that neither the CGL nor the
professional liability policy covered 1325's contract claims. The court
of appeals reversed on all grounds.
The supreme court, in an opinion written by Justice Wilcox, reversed
in part and affirmed in part. First, the court held that the economic
loss doctrine applied to the contract, which the court had "little
difficulty" concluding was a "mixed contract" that included both
services and products (see ¶¶ 32, 36). Next, the
court held that the mixed contract was predominantly for goods (i.e., a
"product," the condominium complex). The court said that this followed
from the contract's plain language, the pricing, the bidding process,
and the parties' understanding (see ¶¶ 46-49). "In
sum, applying [case law] analysis, we conclude the predominant purpose
of the T-3/1325 contract was to provide a condominium complex rather
than to provide construction management services; therefore, the
contract is subject to the economic loss doctrine as 1325 has suffered
solely economic losses" (¶ 50).
Second, the supreme court affirmed the court of appeals' conclusion
that Westport's policy covered the claimed damages and that the insurer
had a duty to defend. "We agree with 1325 and conclude that Westport's
professional liability policy provides coverage for 1325's breach of
contract claim against T-3. 1325's claim clearly fits within the
insuring agreement as it is based on a `negligent act, error or
omission' of T-3 in its failure to adhere to professional standards,
sounding in negligence, but arising in the context of a contract between
1325 and T-3. The policy is in no way limited to negligence
claims. A breach of contract claim, as pled in 1325's amended
complaint, can also arise from negligent acts, errors or omissions"
(¶ 57). The supreme court emphasized that it has "repeatedly
rejected the argument that insurance coverage is dependent upon the
theory of liability" (¶ 58).
Justice Bradley, joined by Chief Justice Abrahamson and Justice
Butler, dissented on the ground that the economic loss doctrine had
"swollen" beyond principle and was "devour[ing] unsuspecting tort
claims" in its path (¶ 69).
Condemnation - Lease
Wisconsin Mall Props. v.
2006 WI 95 (filed 11 July 2006)
A city condemned property owned by Wisconsin Mall, which in turn had
leased the property to Saks and others (Saks). This case involves the
interplay of condemnation law and contract law. The circuit court
granted summary judgment "on the theory that the existence of the
condemnation proceedings precluded Wisconsin Mall from seeking contract
remedies against Saks" (¶ 5). The court of appeals affirmed.
The supreme court, in an opinion written by Justice Bradley,
reversed. "Wisconsin Mall concedes that it is not entitled to a double
recovery. In other words, all agree that Wisconsin Mall cannot recover
for the same damages in both its contract action against Saks and the
condemnation proceedings involving the City. Rather, the dispute in this
case centers on whether Wisconsin Mall's only remedies for the damages
it seeks must be had in the condemnation proceedings or whether
Wisconsin Mall may seek a remedy against Saks via the contract action
that is now before us" (¶ 20).
"Saks and the City argue that Wisconsin Mall has no rights under the
lease as a result of the condemnation. This argument is largely based on
an assertion that the City exercised its eminent domain power to condemn
not only the property but also the lease. According to Saks and the
City, it is as if Wisconsin Mall assigned the lease to the City such
that the City stepped into Wisconsin Mall's shoes. Further, Saks and the
City argue that even if Saks breached the lease, the damages for that
breach must be had in the condemnation proceedings as part of Wisconsin
Mall's just compensation for the lease" (¶ 22).
The court began "from the premise that at least some contract claims
relating to condemned property may be maintained apart from and despite
any related condemnation proceedings" (¶ 23). "The question thus
becomes whether Wisconsin Mall's contract claim against Saks may be
maintained apart from and despite the pending condemnation proceedings
that relate to the Green Bay store property" (¶ 24). Two "general
rules" governed the analysis: "(1) complete condemnation of a property
terminates a lease attached to that property; and (2) the parties to a
lease may contract for their rights and obligations in the event of
condemnation" (¶ 26).
The general rules begat three further "observations." "First, it is
not correct to assume that the condemnation here operated as an
assignment of the lease, placing the City directly into the shoes of
Wisconsin Mall as the lessor under the lease. Rather, the condemnation
of Wisconsin Mall's property terminated the lease, except to the extent
that the parties agreed otherwise with respect to their rights and
obligations in the event of a condemnation. Second, it is also not
correct to assume, as do Saks and the City, that Wisconsin Mall is
necessarily precluded from enforcing against Saks any right that arose
under the lease" (¶ 31).
Third, "Wisconsin Mall's contract claim against Saks appears
primarily based on an alleged breach of the lease that occurred before
its property was condemned. The primary breach that Wisconsin Mall
alleges is of section 5.1(c) of the lease. Specifically, Wisconsin Mall
asserts that Saks took actions to avoid the lease by colluding with the
City to effectuate a condemnation that would allow Saks to escape its
obligations to Wisconsin Mall under the lease" (¶ 34). (The lease
contained express provisions that governed in the event of condemnation
(see ¶ 35).) The court said that remand was necessary
because "whether Wisconsin Mall may seek a remedy against Saks for a
breach of the lease depends on the terms of the lease as interpreted and
applied to the facts of this case" (¶ 44).
Tax Deeds - Power of County to Rescind Tax Deed
Jackson County v.
Wisconsin Dep't of Natural Resources, 2006 WI 96 (filed 11 July
Jackson County Sanitary Landfill Inc. (JCSL) owned and operated a
landfill in Jackson County. JCSL was licensed by the Department of
Natural Resources (DNR) to operate a solid waste facility. In 1998 JCSL
stopped paying real estate taxes on the property that contains the
landfill. In June 2000, the landfill reached its authorized capacity and
JCSL began closing the landfill. The county pursued tax delinquency
proceedings against JCSL by issuing a tax certificate for unpaid taxes
on the property. Because JCSL continued in its nonpayment of real estate
taxes and did not redeem the tax certificate, in 2002 the county clerk
issued a tax deed to the county. The county accepted the tax deed and
then recorded and re-recorded it.
In 2003, the county's board of supervisors resolved to rescind the
tax deed after determining that the responsibilities associated with the
landfill could place a financial burden on the county. However, JCSL
claimed that the county now owned the landfill and was responsible for
its care and maintenance and any subsequent liability. The county then
filed a declaratory judgment action in the Dane County Circuit Court. It
alleged that it is inequitable to permit JCSL to escape its obligations
for the landfill by refusing to pay taxes.
The circuit court granted summary judgment to the defendants, and the
county appealed. The court of appeals certified the issue of whether "a
county, after taking a tax deed to assume ownership of property on which
taxes had not been paid, may rescind the tax deed and return the
property to the original owner, without that owner's consent" (¶
9). The supreme court granted certification.
In a majority decision authored by Justice Roggensack, the supreme
court concluded that Jackson County lawfully issued the tax deed. "We
also conclude that when the County accepted the tax deed, all property
rights vested in fee simple in the County. Because the County has no
statutory authority to rescind a tax deed that was lawfully issued and
thereby unilaterally impose property ownership on a third party, its
attempted rescission has no effect on ownership of the property
containing the landfill" (¶ 1).
Chief Justice Abrahamson filed an opinion concurring in part and
dissenting in part. Justice Prosser filed a dissenting opinion.
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Habitual Criminality - Post-trial Amendment of Habitual Criminality
Allegation - CCAP Report of Prior Record Insufficient to Prove Habitual
State v. Bonds,
2006 WI 83 (filed 30 June 2006)
The defendant was charged with misdemeanor battery. He was alleged in
the criminal complaint to be a habitual criminal under Wis. Stat.
section 939.62 by virtue of three prior misdemeanor convictions. He
pleaded not guilty but was convicted by a jury. At sentencing, he did
not admit the allegation of habitual criminality. The state then changed
the factual basis for its allegation that the defendant was a repeater
and sought to prove a prior felony forgery conviction. The state
submitted a Consolidated Court Automation Programs (CCAP) report as
proof of that conviction. (CCAP is a case management system provided by
the Wisconsin Circuit Court Access program. It provides the public with
online access to reports of activity in the circuit courts of Wisconsin
counties that use CCAP.) The defendant objected to amending the basis on
which the state sought to prove habitual criminality and also asserted
that the proof the state had submitted was insufficient to prove
habitual criminality beyond a reasonable doubt. The circuit court
permitted the amendment, accepted the CCAP report as sufficient proof of
habitual criminality, and sentenced the defendant as a repeater. The
court of appeals affirmed.
In a split decision the supreme court reversed the court of appeals.
A four-member majority of the court (Justices Wilcox, Crooks, Prosser,
and Roggensack) concluded that "with sufficient proof, the State's
post-conviction amendment of the basis for proving habitual criminality
would have been permissible for two reasons: (1) The complaint satisfied
the requirements of Wis. Stat. § 973.12 [the statute setting forth
the requirements for alleging and applying the habitual criminality
penalty enhancer] and of due process because [the defendant] had notice
that he was being charged as an habitual criminal and of the potential
maximum sentence he faced before he pled; and (2) [the defendant] was
not prejudiced in making an intelligent plea as a result of the State's
shift to a different prior conviction as the factual basis for its
repeater allegation" (¶ 2).
With respect to the prejudice issue, these four justices concluded
that there was no dispute that the defendant's prior convictions made
him a repeater and that he was alleged to be a repeater before he
entered his plea. Further, "the amendment did not prevent [the
defendant] from meaningfully assessing the potential maximum penalty to
which he could be subjected. Under § 939.62(1)(a), whether the
State proved his repeater status by three misdemeanor convictions or by
one felony conviction, [the defendant's] potential maximum penalty was
the same. This is so because a battery conviction under Wis. Stat.
§ 940.19(1) is a Class A misdemeanor that has maximum imprisonment
of nine months. Wis. Stat. § 939.51(3)(a). Therefore, even with the
repeater enhancement, [the defendant's] maximum term of imprisonment for
the battery conviction could not be increased to more than two years,
regardless of whether the State relied on three misdemeanors or one
felony" (¶ 31).
A different majority of the court (Chief Justice Abrahamson and
Justices Bradley, Roggensack, and Butler) concluded that "the State's
use of a CCAP report as evidence of [the defendant's prior] conviction
does not constitute prima facie proof of that conviction and that [the
defendant] did not waive his right to object to the State's use of the
CCAP report" (¶ 2). These justices pointed out that CCAP does not
afford proof beyond a reasonable doubt of factual propositions, because
a CCAP report is not the official record of a criminal case and is not a
copy of the actual judgment of conviction (see ¶ 46). In
fact, the CCAP Web site includes a disclaimer regarding the accuracy of
information contained on the site (see ¶ 7).
Said these justices, "[w]e cannot, under those circumstances,
consider the contents of a CCAP report to rise to the level of
reliability sufficient to establish prima facie proof that a defendant
has a prior qualifying conviction. In addition, [the defendant] did not
stipulate to using a CCAP report as the `mode of proof' for habitual
criminality. He asserted before the circuit court that the State had not
proved habitual criminality beyond a reasonable doubt; he has continued
to do so throughout the appellate process. Therefore, we conclude that
by relying solely on the CCAP report, and without other evidence that
could prove [the defendant's] repeater status beyond a reasonable doubt,
the State did not offer sufficient evidence to constitute prima facie
proof that [the defendant] was an habitual criminal"(¶ 49).
Accordingly, the supreme court remanded the case to the circuit court
to vacate the habitual criminality enhancer portion of the defendant's
sentence (see ¶ 54).
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Guilty Plea Proceedings - Procedures Mandated by Wis. Stat. Section
971.08 and by Case Law - Requirements for Obtaining Hearing on
Postconviction Motion to Withdraw Allegedly Defective Plea - Failure to
Advise Defendant About Possibility of Consecutive Sentences
State v. Brown,
2006 WI 100 (filed 12 July 2006)
The defendant entered guilty pleas to three felonies in which he was
allegedly involved as a party to the crime. He thereafter moved to
withdraw the pleas, claiming that he did not enter them knowingly,
intelligently, and voluntarily. To support this claim, he pointed to the
transcript of the plea hearing and alleged that the circuit court judge
failed to discharge some of the duties imposed by Wis. Stat. section
971.08 (the guilty plea statute) and State v. Bangert, 131 Wis.
2d 246, 389 N.W.2d 12 (1986). The circuit court denied the motion
without an evidentiary hearing. The court of appeals affirmed. In a
unanimous decision authored by Justice Prosser, the supreme court
reversed the court of appeals.
"A defendant is entitled to an evidentiary hearing on a motion to
withdraw a guilty plea when (1) the defendant makes a prima facie
showing that the circuit court's plea colloquy did not conform with
§ 971.08 or other procedures mandated at a plea hearing; and (2)
the defendant alleges he did not know or understand the information that
should have been provided at the plea hearing" (¶ 2). For the
reasons described below, the supreme court concluded that the defendant
sustained his burden and is therefore entitled to an evidentiary hearing
on the motion.
The court noted several deficiencies in the guilty plea proceedings
in this case. Most prominent was the failure of the circuit court to
satisfactorily enumerate, explain, or discuss the facts or elements of
the three felonies in a manner that would establish for a reviewing
court that the defendant understood the nature of the charges to which
he pleaded guilty. "The circuit court never enumerated, explained, or
discussed the elements of first-degree sexual assault, armed robbery, or
kidnapping, or the facts making up the elements. Although [the
defendant's] attorney stated that he had explained the nature of the
charges to [the defendant], the circuit court never asked either [the
defendant] or his attorney to summarize the extent of the explanation or
the elements of the crimes on the record. The circuit court never
referred to the record from prior court proceedings to establish that
[the defendant] understood the nature of the charges. The circuit court
never referred to or summarized the charges as found in a plea
questionnaire or other writing signed by [the defendant], because there
were no such documents" (¶ 53).
Further, the defendant pleaded guilty to all charges as a party to
the crime without the circuit court ever explaining or ensuring that the
defendant understood the concept of party to a crime - an omission that
could have significance under the particular facts and circumstances of
this case (see ¶ 55). The court also indicated that "[a]
statement from defense counsel that he has reviewed the elements of the
charge, without some summary of the elements or detailed description of
the conversation, cannot constitute an `affirmative showing that the
nature of the crime has been communicated'" (¶ 58) (citation
Even with the deficiencies noted above, to obtain an evidentiary
hearing on the motion to withdraw his guilty plea the defendant must
allege that he did not know or understand the information that should
have been provided at the plea hearing. "A defendant is not required to
submit a sworn affidavit to the court, but he is required to plead in
his motion that he did not know or understand some aspect of his plea
that is related to a deficiency in the plea colloquy" (¶ 62). In
this case the court concluded that the defendant's motion in this regard
was sufficient though the allegations were crafted "somewhat indirectly"
(see ¶¶ 4, 60-66). Said the court, "[i]n the ordinary
case, defense counsel should plead with greater particularity a
defendant's lack of understanding. A defendant must identify
deficiencies in the plea colloquy, state what he did not understand, and
connect his lack of understanding to the deficiencies" (¶ 67).
The supreme court also concluded that there were shortcomings with
respect to the defendant's waiver of constitutional rights. The circuit
court had recited the litany of rights waived by a guilty plea and
secured an affirmative answer from the defendant that he was waiving
each right. Defense counsel represented that he, too, had gone over the
content of the standard guilty plea questionnaire (which includes the
litany of rights) with the defendant (although the document was not
executed by the defendant because he is illiterate). Said the supreme
court, "[o]n the facts of this case, where the defendant was illiterate,
where there was no waiver of rights form, and where there was no
rendition by [the defendant's] attorney of a meaningful discussion of
the defendant's rights, the court should have done more to show that the
defendant understood the rights he was giving up by entering a plea.
Probing questions may not always be necessary, but they help to ensure a
defendant's understanding and they help to complete the hearing record"
Lastly, the court considered the defendant's claim that the circuit
court violated Wis. Stat. section 971.08(1) by failing to state that the
punishment for each of the charges could run consecutively. The supreme
court found it difficult to accept the defendant's suggestion that this
failure would render a guilty plea defective. "The reasonable conclusion
when a defendant is confronted with multiple charges is that the
defendant could face multiple punishments. That realization is a major
explanation for plea bargains that reduce the number of charges.
Although the better practice is to advise a defendant of the cumulative
maximum sentence he could receive from consecutive sentences, we do not
believe the omission of such information should allow a defendant to
withdraw a guilty plea in the absence of any allegation that the
defendant did not understand the effect of multiple charges on his
sentence. Failure to understand this simple concept would signal more
serious problems with the plea" (¶ 78).
(Editors' note:The court's opinion in this case provides a
comprehensive catalogue of the trial judge's duties at a guilty plea
hearing. In a footnote the court referenced the summary of the judge's
duties that is contained in Wis - JI Criminal SM-32 (1995) and "strongly
encourage[d] courts to follow these plea-acceptance procedures"(¶
Multiplicity Claims - Guilty Plea Waiver Rule
State v. Kelty,
2006 WI 101 (filed 12 July 2006)
The defendant entered guilty pleas to two counts of first-degree
reckless injury in violation of Wis. Stat. section 940.23(1)(a). The
substance of the state's case was that the defendant struck a baby in
the head at least twice with two different objects, causing two skull
fractures, during a single episode of child abuse. The defendant brought
a postconviction motion challenging the validity of her conviction on
the second reckless injury count, claiming that it was multiplicitous.
(The precise double jeopardy claim was a unit-of-prosecution
multiplicity challenge. The defendant argued that the state improperly
subdivided the same offense into multiple counts of violating the same
statute (see ¶¶ 16-17).)
The circuit court denied the motion. It found that the defendant had
waived any double jeopardy defect by pleading guilty to both counts. A
divided court of appeals reversed, holding that only an express waiver
of double jeopardy can relinquish a defendant's double jeopardy rights.
In a majority decision authored by Justice Prosser, the supreme court
reversed the court of appeals.
The precise question before the court was "whether an otherwise
satisfactory guilty plea to two counts of violating the same statute in
a single prosecution is sufficient to waive a unit-of-prosecution
multiplicity challenge on direct appeal" (¶ 17). The court
concluded that "a guilty plea relinquishes the right to assert a
multiplicity claim when the claim cannot be resolved on the record. When
a defendant enters a knowing, intelligent, and voluntary guilty plea,
the nature and effect of the plea necessarily mean that the defendant
gives up the right to a fact-finding hearing on the propriety
of multiple charges" (¶ 2) (citation omitted). On the other hand,
if a double jeopardy challenge can be resolved without any need to
venture beyond the record, the court should decide the claim on its
merits (see ¶ 39).
In this case, the record (i.e., the criminal complaint, the
preliminary hearing transcript, and the information) contains evidence
to support the charges, but the supreme court could not determine with
certainty from the record exactly how the defendant inflicted the baby's
injuries. "In other words, we cannot determine with certainty whether
[the defendant's] two convictions for first-degree reckless injury were
multiplicitous. All we know is that the State had the power to prosecute
both counts on the evidence available; the defendant pled guilty to both
counts after hearing the charges and the evidence, and after conferring
in detail with her attorney; and the court, after a very thorough plea
colloquy, had the power to convict and sentence the defendant on both
counts. Without additional fact-finding, we could not learn more than we
know now. Accordingly, we conclude that [the defendant's] guilty plea
relinquished her opportunity to have a court determine the merits of her
multiplicity challenge" (¶ 51).
The court specifically indicated that its decision should not be
understood to render guilty pleas impervious to double jeopardy
challenges. "A defendant retains the right (1) to challenge whether a
plea is knowing, intelligent, and voluntary by pointing to errors in the
plea colloquy pursuant to State v. Brown, 2006 WI 100, __ Wis.
2d __, __ N.W.2d __ [digested above] and State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective
assistance of counsel pursuant to State v. Bentley, 201 Wis. 2d
303, 548 N.W.2d 50 (1996); and (3) to challenge the authority of the
state to prosecute her and the power of a court to enter the conviction
or impose the sentence, where the existing record allows the court to
determine whether the defendant's double jeopardy rights have been
violated" (¶ 3).
The court further noted that, even though a guilty plea relinquishes
a defendant's right to a fact-finding hearing on a double jeopardy
challenge, nothing about the court's decision in this case prevents a
prosecutor or a court from securing a defendant's express waiver of his
or her double jeopardy rights. See Salters v. State, 52 Wis. 2d
708, 714, 191 N.W.2d 19 (1971) (recognizing the validity of an express
waiver of double jeopardy rights). "We believe this is the better
practice. Express waivers not only make for a more complete record, but
also allow a circuit court and a prosecutor to guard against the
possibility of reversible error. They lend greater confidence to
convictions secured by guilty pleas, by reducing concerns that a
conviction may have resulted in part from some shortcoming or deficiency
of defense counsel" (¶ 45).
Although the issue in this case was presented in the context of a
multiplicity challenge on direct appeal, the court also pointed out that
"[a] guilty plea waives a multiplicity claim anytime the claim cannot be
resolved on the record, regardless whether a case presents on direct
appeal or collateral attack"(¶ 34).
Chief Justice Abrahamson filed a concurring opinion. Justice Butler
filed a concurring opinion as well that was joined by Justice
Statements Made by Officer During Police Internal Investigation -
Garrity Test for Voluntariness
Brockdorf, 2006 WI 76 (filed 28 June 2006)
A Milwaukee police officer, Vanessa Brockdorf, was charged with
obstructing an officer for knowingly giving false information to a
detective, Michele Harrison, with the intent to mislead her, contrary to
Wis. Stat. section 946.41(1). The obstruction allegedly occurred when
Brockdorf was questioned by Harrison, who was conducting a criminal
investigation into allegations that Brockdorf's squad partner had
physically abused a shoplifting suspect who was in the custody of
Brockdorf and her partner. Brockdorf gave one statement on Sept. 19,
2003, at her home and another on Oct. 3, 2003, at a police facility. In
the latter statement "she essentially admitted her first statement was
untrue" (¶ 11).
Brockdorf filed a motion to suppress the Oct. 3 statement, claiming
that it was not voluntary under Garrity v. New Jersey, 385 U.S.
493 (1967). In Garrity, the Supreme Court held that statements
given under threat of discharge from public employment are compelled and
may not be used in subsequent criminal proceedings. "The
[Garrity] Court ultimately concluded that `the protection of
the individual under the Fourteenth Amendment against coerced statements
prohibits use in subsequent criminal proceedings of statements obtained
under threat of removal from office, and that it extends to all, whether
they are policemen or other members of our body politic'" (¶
The circuit court concluded that Brockdorf's Oct. 3 statement was the
product of a coercive choice and that Brockdorf was entitled to an offer
of Garrity immunity. The court of appeals reversed. It held
that the Oct. 3 statement was not forced or compelled. In a majority
decision authored by Justice Wilcox, the supreme court affirmed the
court of appeals.
After reviewing extensive case law interpreting Garrity, the
supreme court adopted a two-pronged subjective/objective test for
determining whether, as a matter of law, an officer's statements given
in a criminal investigation are coerced and involuntary and therefore
subject to suppression under Garrity (see ¶ 3).
"Thus, in order for statements to be considered sufficiently compelled
such that Garrity immunity attaches, a police officer must
subjectively believe he or she will be fired for asserting the privilege
against self-incrimination, and that belief must be objectively
reasonable.... In applying this analysis, we must ultimately examine the
totality of the circumstances surrounding the statements. However ... an
express threat of job termination or a statute, regulation, rule, or
policy in effect at the time of the questioning which provides for an
officer's termination for failing to answer the questions posed, will be
a sufficient circumstance to constitute coercion in almost any
conceivable situation" (¶¶ 35-36) (citations omitted).
Applying this test, the court concluded that the subjective prong of
the analysis was satisfied because Brockdorf testified at the
suppression hearing that she figured she would later be fired if she
elected not to talk to Harrison. The court also concluded, however, that
Brockdorf's subjective belief was not objectively reasonable. Neither
Harrison nor her partner expressly threatened Brockdorf with the loss of
her job for choosing to exercise her right to remain silent in the
"Additionally, there is no state law, ordinance, departmental
regulation, or longstanding departmental policy that forces an officer
to choose between job loss and self-incrimination. Thus, if Brockdorf
had elected to exercise her Fifth Amendment privilege against
self-incrimination, termination would not have automatically followed
for that reason" (¶ 38). Brockdorf was not in custody at
the time of the interrogation. The questioning took place as part of a
criminal investigation, not a personnel investigation (during which
police officers may legitimately be compelled, under the threat of job
termination, to answer questions as long as those statements are not
used against the officer in a subsequent criminal proceeding)
(see ¶ 39). Brockdorf did not claim to have confused the
criminal battery investigation with a personnel inquiry.
"In our view, however, the only `significant coercive action of the
state' that Brockdorf can point to is the alleged threat Harrison and
[Harrison's partner] made to Brockdorf to talk or get charged with
obstructing. Without an express threat of termination, however, we
conclude that this admonishment did not deprive Brockdorf of her right
to make a free and reasoned decision to remain silent. In other words,
Brockdorf's belief that she would be terminated for maintaining silence
remained objectively unreasonable. Under the totality of the
circumstances, we conclude that Brockdorf felt compelled to give a
statement because: (1) she had lied to investigators in September about
her partner's criminal conduct; (2) she realized she had been caught in
the lie; and (3) she concluded the best course of action at that time
was to confess to the truth as opposed to continuing to lie or remaining
silent. Nothing that Harrison or [Harrison's partner] did was
objectively coercive enough for us to conclude that Brockdorf's
statement was involuntary under Garrity" (¶ 43) (citations
Justice Crooks filed a dissenting opinion that was joined by Justices
Prosser and Butler. Justice Butler also filed his own separate
Jury Trials - Communications by Court with Deliberating Jury
Anderson, 2006 WI 77 (filed 29 June 2006)
The defendant was convicted of first-degree sexual assault of a
child. In a published decision the court of appeals affirmed the
conviction. See 2005 WI App 238. In a majority decision
authored by Chief Justice Abrahamson, the supreme court reversed the
court of appeals.
The court noted that this case turned on the credibility of witnesses
and that the jury clearly had difficulty sorting out the evidence during
its deliberations (see ¶ 121). The defendant's claims of
error on appeal centered on the circuit court's responses to various
jury requests to reexamine the evidence.
The majority concluded that the circuit court committed error in each
of the following respects: "(A) by allowing the jury to see and hear the
victim's videotaped interview in the jury room during deliberations
rather than on the record in open court; (B) by communicating with the
jury during its deliberations outside the presence of the defendant and
without notice to or consultation with the defendant [in violation of
the defendant's right to be present at all substantive steps in a trial
(see ¶ 43)]; (C) by communicating with the jury outside of
the presence of defense counsel and without notice to or consultation
with the defense counsel [in violation of the defendant's right to
counsel (see ¶ 69)]; (D) by failing to make or preserve a
record of its statements or comments to the jury relating to the case
[as required by Wis. Stat. § 805.13(1) (see ¶ 78)];
and (E) by refusing the jury's requests to have the defendant's and the
victim's in-court testimony read to it while allowing the jury during
deliberation to see and hear the victim's videotaped interview" (¶
126). With respect to the last error, the court characterized the
results of the circuit court's actions as follows: "The direct testimony
of the State's most significant witness could be replayed in its
entirety while the jury was not permitted to hear again the in-court
testimony and cross-examination of the victim or the defendant, even
though the jury believed it needed the in-court testimony to decide the
case" (¶ 107).
The supreme court further concluded that, on the facts of this case,
the defendant was prejudiced by the circuit court's errors (see
¶ 127). Accordingly, the supreme court vacated the judgment of
conviction and remanded the matter to the circuit court for a new
Justice Roggensack filed a dissenting opinion that was joined by
Parental Interference with Child Custody - Collateral Attack on
Custody Order - Attorney Fees for Standby Counsel
Campbell, 2006 WI 99 (filed 12 July 2006)
The defendant was convicted of felony bail jumping and two counts of
parental interference with the custody of a child. On appeal he sought
to reverse one of the interference charges and the bail jumping charge.
The defendant claimed that the circuit court erred when it prevented him
from collaterally attacking the validity of the family court's order,
issued in divorce proceedings, that awarded his wife temporary custody
of the children. The defendant argued that his wife procured the custody
order by fraudulently representing to the family court that she was the
adoptive mother of one of the children. The defendant claimed that at
the time a Missouri court granted the adoption, he and his wife
represented to the Missouri court that they were residents of Missouri,
when in fact they were not. Following a jury trial, the defendant
appealed. The court of appeals certified the case to the supreme court,
which granted certification.
In a majority opinion authored by Justice Prosser, the supreme court
affirmed. It concluded that "a court may permit a collateral attack on a
judgment or order procured by fraud if the fraud is jurisdictional,
making the judgment or order void, thereby negating an element of a
crime, or if the fraud raises an affirmative defense to the crime"
(¶ 4). Here, the court concluded that there was no jurisdictional
fraud. "We agree with the State and conclude that since the [Wisconsin]
family court had both subject matter jurisdiction to make the custody
determination and personal jurisdiction over Campbell, there was no
jurisdictional fraud" (¶ 39). Therefore, the temporary custody
order was not void and the mother had legal custody of the child
(see ¶ 48). The defendant had to abide by the terms of
that order until he succeeded in reversing it through the applicable
review process (see ¶ 49).
The defendant also argued that he should have been permitted to
present evidence of his wife's alleged misrepresentation as part of an
affirmative defense at trial. He argued that Wisconsin allows a
defendant to disregard an order procured by fraud and then collaterally
attack the fraudulently obtained judgment when the judgment supplies the
basis for a criminal prosecution. For a variety of reasons described in
the opinion, the supreme court declined to recognize a common law
affirmative defense of fraud to the crime of interference with custody
(see ¶¶ 56-62).
Lastly, the court considered whether the circuit court had the
authority to require, as a condition of probation, that the defendant
pay the attorney fees of standby counsel. On this issue the supreme
court concluded that "in exercising its discretion to appoint standby
counsel, a circuit court may impose the attorney fees of
standby counsel upon a defendant as a condition of probation where
either (1) the defendant agrees to reimburse the county for the attorney
fees; or (2) the court informs the defendant of his potential liability
for the fees and the defendant uses standby counsel so
extensively that he or she functions as traditional defense counsel.
Under both alternatives, however, before imposing fees the court must
determine the defendant's ability to pay pursuant to Wis. Stat. §
973.20(13)(a)2. to 5" (¶ 5). In this case, the court determined
that the defendant is responsible for attorney fees under either test.
He agreed at the initial appearance to pay the fees of standby counsel.
Further, the court informed him of his obligation to reimburse the
county for the fees and the defendant used the attorney in his defense
so extensively that the attorney was functioning as traditional defense
counsel (see ¶ 78). However, because the circuit court
never determined the defendant's ability to pay attorney fees, the
supreme court remanded the matter for the circuit court to make that
determination (see ¶ 79).
Justice Butler filed an opinion concurring in part and dissenting in
part that was joined by Chief Justice Abrahamson.
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Termination of Parental Rights - Parental Unfitness
Kenosha County Dep't of
Human Servs. v. Jodie W., 2006 WI 93 (filed 11 July 2006)
A circuit court terminated a mother's parental rights to her
6-year-old son. The mother was found unfit because her incarceration
rendered her unable to meet the conditions for return set forth in a
CHIPS order. The mother acknowledged at a hearing "that she could not
meet the `suitable residence' conditions within 12 months because she
would not be able to present any evidence that she might be released
within the next 12 months, and therefore entered a no contest plea"
(¶ 10). The court of appeals affirmed.
In a decision authored by Justice Butler, the supreme court reversed.
The court first addressed the threshold issue of whether the mother
waived her right to challenge the statute's constitutionality by
entering a no contest plea (see ¶ 21). The court held that
"there is insufficient evidence to support a determination that Jodie
entered her plea knowingly, voluntarily, and intelligently" (¶ 38).
The plea form contained various inconsistencies, the circuit court's
colloquy was "incomplete," and the court refused to accept testimony
regarding her reasons for the no contest plea.
The court then turned to the substantive due process claim, holding
"that in cases where a parent is incarcerated and the only ground for
parental termination is that the child continues to be in need of
protection or services solely because of the parent's incarceration,
Wis. Stat. § 48.415(2) requires that the court-ordered conditions
of return are tailored to the particular needs of the parent and child"
(¶ 51). Stated differently, "[s]ubstantive due process requires
that the State's action to terminate [the mother's] parental rights be
narrowly tailored to meet the State's compelling interest of protecting
[the son] from an unfit parent. Both the court-ordered conditions of
return and the circuit court's evaluation of [the mother's] failure to
meet these conditions were not narrowly tailored to meet that interest"
Justice Wilcox, joined by Justice Prosser, dissented on the grounds
that the mother's plea was valid and that the circuit court had made an
"individualized determination of her fitness as a parent.... [N]ow
children of incarcerated parents will be serving a concurrent sentence
in limbo" (¶ 59).
Justice Crooks did not participate.
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Reducing Clause - UM
Teschendorf v. State
Farm Ins. Co., 2006 WI 89 (filed 7 July 2006)
While in the course of employment, Scott Shira was killed in a car
accident caused by an uninsured driver. Shira was unmarried and had no
dependents. His worker's compensation insurer paid about $160,000 in
benefits to the state's Work Injury Supplemental Benefit Fund (the Fund)
and about $12,000 to his parents for funeral expenses. At the time of
his death, Shira also carried $150.000 of uninsured motorist (UM)
coverage with American Family Mutual Insurance Co. Shira's parents
brought a wrongful death claim to recover the UM benefit. Based on the
policy's reducing clause, the circuit court granted summary judgment in
favor of American Family. The court of appeals reversed in a split
The supreme court, in a decision authored by Justice Prosser,
affirmed. "The issue presented is whether an insurer may reduce the
uninsured motorist coverage limits in its policy by amounts paid under a
worker's compensation law, where the amounts paid go to the State of
Wisconsin Work Injury Supplemental Benefit Fund (the Fund) rather than
the insured or any person related to the insured" (¶ 1). The court
held that "Wis. Stat. § 632.32(5)(i)2. (2001-02)
does not allow an insurer to reduce uninsured motorist policy limits by
worker's compensation payments that are not made to or on the behalf of
the insured, the insured's heirs, or the insured's estate" (¶
The court was evenly divided over whether the statute's meaning was
plain on its face or, instead, was ambiguous, thereby requiring the
court to resort to other tools of construction. Nonetheless, all the
justices reached the same conclusion:
"Wis. Stat. § 632.32(5)(i)2. does not allow an
insurer to reduce uninsured motorist coverage limits by worker's
compensation payments made to the Fund" (¶ 18). The holding was
rooted in the UM statute's legislative history and in public policy
(see ¶ 44).
Chief Justice Abrahamson concurred but wrote separately to emphasize
"that the majority opinion demonstrates the futility of labeling a
statute as ambiguous or unambiguous as a means of statutory
interpretation instead of just determining what a statute means" (¶
65). In a separate concurrence, Justice Prosser also contended that
"American Family's reducing clause would not pass muster on these facts
- irrespective of any statute - because it is at war with the reasonable
expectation of its insured" (¶ 72).
Overdue Claims - Interest
Kontowicz v. American
Standard Ins. Co., 2006 WI 90 (filed 7 July 2006)
In this per curiam order, the court declined to reconsider its
decision in Kontowicz v. American Standard Insurance Co., 2006
WI 48, with regard to calculating interest owing on overdue claims under
Wis. Stat. section 628.48. "However, in the interest of clarifying our
opinion to facilitate its application, we agree to clarify that Wis.
Stat. § 628.46 interest begins to run on an overdue claim 30
days after the claimant provides the statutorily required notice (33
days in situations where the claimant mails the statutorily required
notice to the insurer)" (¶ 3). The court also reworded "the last
sentence of ¶ 53 in Kontowicz" so that it conformed with
this clarification (¶ 4).
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Transfer of Property as a Result of Condemnation - Broker's
Sonday v. Dave Kohel
Agency Inc., 2006 WI 92 (filed 11 July 2006)
The plaintiffs owned two parcels of commercial property and
contracted with the Dave Kohel Agency to list the parcels for sale. The
parties used the standard WB-5 commercial listing contract form approved
by the Wisconsin Department of Regulation and Licensing. The contract
provided for a 6 percent commission. Ultimately, the properties were
acquired by an agency of the local municipal government through
The plaintiffs brought an action in circuit court seeking a judgment
that the defendant did not have a right to a commission under the
listing contract because their properties were transferred as the result
of a condemnation action. The circuit court granted summary judgment to
the defendant. The plaintiffs appealed and the court of appeals
certified two questions to the supreme court: "(1) is a real estate
broker entitled to a broker's commission under a listing contract when
the listed real estate is condemned and acquired by a governmental
agency during the listing; and (2) if the real estate listing contract
permits recovery of a broker's commission in a condemnation, does public
policy preclude such payment?" (¶ 2).
In a majority decision authored by Justice Butler, the supreme court
concluded that "the transfer of property by a condemnation action
constitutes a sale under the terms of the contract in this case" (¶
3). Said the court, "in a condemnation action in Wisconsin, the title to
the property is conveyed to the government and the title vests in that
government entity as of the date and time of the recording of the
compensation award. Wis. Stat. § 32.05(7)(c). Because the transfer
of title in exchange for compensation constitutes a sale, and because a
condemnation action transfers title in exchange for compensation, we
conclude that a condemnation action constitutes a sale, albeit a forced
sale, for purposes of the Department-approved WB-5 Listing
The court further held that the defendant real estate broker is
entitled to a 6 percent commission based on the jurisdictional award.
"Under the WB-5 Listing Contract, a broker's commission is earned when
the property is sold. We therefore conclude that the award recorded with
the county register of deeds and paid to the condemnee, which causes the
transfer of title, is the proper basis for the broker's commission"
Lastly, the court concluded that "public policy does not preclude
[the defendant] from recovering the commission agreed to in the WB-5
listing contract" (¶ 56).
Justice Bradley filed a dissenting opinion.
Express Easements - Termination
AKG Real Estate v.
Kosterman, 2006 WI 106 (filed 14 July 2006)
As succinctly stated by Justice Prosser, "[t]his case presents the
question whether an express easement may be relocated or terminated
without the consent of the dominant estate. In a published decision, the
court of appeals held that a servient estate could unilaterally
terminate an express right-of-way easement once the servient estate
provided an alternate route of ingress and egress to the dominant
estate. We reverse the court of appeals because we conclude that the
owner of a servient estate cannot unilaterally relocate or terminate an
express easement" (¶ 1).
The Kostermans bought a four-acre lot (the "dominant estate") that
"lacked access to a public road except by means of three recorded,
physically overlapping easements across part of an 80-acre parcel of
land (the Servient Estate), which partially surrounded their property"
(¶ 4). A real estate group, AKG, owned the servient estate and
intended to develop a subdivision on it. AKG offered alternate public
road access, which the Kostermans rejected. AKG then filed this
declaratory judgment action, and the Kostermans counterclaimed. The
circuit court granted summary judgment in favor of AKG. The court of
The supreme court, in an opinion written by Justice Prosser,
reversed. AKG argued that the so-called 1961 easement should be
terminated on the ground that it was impossible to fulfill its purpose
(see ¶ 21). The supreme court disagreed. "[N]either a
prescriptive easement nor an express easement can be modified or
terminated solely because the necessity for the easement ceases. Thus,
`[t]he rule that the right ceases with necessity has no application to
ways acquired by express grant or by prescription; a right to a way
so created cannot be defeated by showing that the owners have another
convenient and accessible way of going to and from their premises.'
Thus, even if AKG did provide alternate public road access to the
Kostermans, the 1961 easement would remain in force, because an express
easement continues regardless of whether the dominant estate needs the
easement" (¶ 28) (citations omitted).
The court also held that it would not modify the easement despite the
fact that changed conditions made it unduly burdensome on the servient
estate (see ¶ 29). "We agree with the Kostermans and the
courts that have rejected the Restatement (Third) of Property:
Servitudes §§ 4.8(3) and 7.10(2) in favor of preventing
the owners of servient estates from unilaterally relocating or
terminating express easements. These courts have rejected the position
advanced by the Restatement as a threat to the certainty of
property rights and real estate transactions, as a catalyst for
increased litigation, and as a means for purchasers of servient estates
to reap a windfall at the expense of owners of dominant estates. We
agree that these reasons for rejecting the Restatement's
position are more compelling than the economic inefficiencies that might
result from bilateral monopolies and hold-out easement owners"(¶
35) (citations omitted).
The court also rejected, in a fact-intensive analysis, AKG's
alternative argument that "the 1998 deeds extinguished the 1960 and 1961
easements" (see ¶¶ 40-45).
Chief Justice Abrahamson and Justice Bradley each filed concurring
opinions in which the other also joined. Chief Justice Abrahamson found
the majority opinion too broadly worded, and Justice Bradley cautioned
that the opinion did not address critical concepts such as
"impossibility or cessation of purpose" (¶ 57).
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Civil Settlement - Criminal Restitution
Huml v. Vlazny,
2006 WI 87 (filed 7 July 2006)
This case "addresses the relationship between the restitution order
in a criminal case and a subsequent settlement agreement in a civil
case" (¶ 1). Vlazny seriously injured Huml in a
drunk-driving-related collision in 1993. Vlazny was convicted for this
crime, placed on probation, and ordered to pay restitution of $140,000,
at a monthly rate that would leave a large balance due at the end of his
probation term. In 1995 Huml filed a civil action against Vlazny and
Vlazny's insurer. The case was settled, and the ensuing settlement
entitled Huml to receive more than $500,000 plus additional monthly
payments. Vlazny remained on probation until 2002, when the circuit
court agreed to terminate his probation and entered a civil judgment of
about $108,000 for the unpaid restitution (see ¶ 10).
Vlazny later moved the court to rule that the judgment should be reduced
to zero because of the 1995 settlement. The court ruled instead that
Huml could enforce the judgment. Vlazny appealed, and the court of
appeals certified the case to the supreme court.
In an opinion authored by Justice Prosser, the supreme court
reversed. The appeal presented two issues. "First, may a civil
settlement agreement between a crime/tort victim and a criminal
defendant/tortfeasor preclude the victim from collecting unpaid
restitution that the defendant was ordered to pay in the criminal
proceeding, after the defendant's probation ends and the unpaid
restitution is reduced to a civil judgment pursuant to
Wis. Stat. §§ 973.09(3)(b) and 973.20(1r)?"
The court held "that a civil settlement agreement can have no effect
upon a restitution order while the defendant remains on probation,
unless the circuit court finds that enforcing the restitution order in
addition to the settlement agreement would result in a double recovery
for the victim. After a defendant is released from probation, however,
and any unpaid restitution under the restitution order is converted to a
civil judgment, a settlement agreement between the victim and defendant
may - depending upon its terms - preclude the victim from enforcing the
judgment" (¶ 5).
Restitution "in a criminal case is a remedy that belongs to the
state, not to the victim.... Termination of probation, however, signals
the state's disavowal of any penal or rehabilitative interests.
Thereafter, only the goal of compensating the victim remains. This is an
objective adequately accomplished by entry of a civil judgment, which
can be enforced through civil enforcement mechanisms. Consequently, it
is consistent with Wisconsin precedent to allow a victim, in
anticipation of the defendant completing probation, to release her right
to enforce any judgment derived from unpaid restitution as part of a
settlement agreement"(¶ 44). The court's statutory interpretation
furthered the public policy objective of providing a victim with
"leverage to negotiate a favorable settlement" through the inducement of
a release (see ¶ 48).
Second, the court addressed the 1995 settlement and concluded that it
had the effect of releasing Vlazny. "[T]he plain language of the
settlement agreement released all Huml's claims and rights to damages
arising from the accident" (¶ 55).
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Ad Valorem Taxes - Exemption for Certain Air Carrier Companies
Northwest Airlines Inc.
v. Wisconsin Dep't of Revenue, 2006 WI 88 (filed 7 July
Wisconsin taxes air carrier companies under an ad valorem tax
codified in Wis. Stat. chapter 76. Each air carrier's property
is valued on a company-wide basis, and a percentage of this amount is
attributed to Wisconsin for purposes of calculating the ad valorem tax
(see ¶ 16).
In 2001 the Wisconsin Legislature created an ad valorem tax exemption
for air carrier companies that satisfy either of two
statutorily-described criteria for operating a hub facility in
Wisconsin. The purposes of the exemption are to maintain the state's air
transportation system, protect existing jobs, encourage the development
of additional air transportation facilities, and preserve the state's
competitiveness in attracting and retaining business and industry.
Midwest Airlines Inc. and Air Wisconsin Airlines Corp. qualified for
the exemption in 2002. The Legislative Fiscal Bureau estimated that in
2002 the hub exemption relieved Midwest Airlines of nearly $2 million in
ad valorem taxes and relieved Air Wisconsin of nearly $600,000 in ad
valorem taxes. Northwest Airlines Inc., with headquarters in Minnesota,
did not qualify in 2002 for the tax exemption (which would have been
worth $1.5 million), and it filed this lawsuit challenging the
constitutionality of the tax exemption. The circuit court held the tax
exemption unconstitutional. The court of appeals certified the case to
the supreme court, which granted certification.
In a majority decision authored by Justice Prosser, the supreme court
held that the hub exemption to the ad valorem tax violates neither the
Equal Protection Clause of the United States Constitution nor the
Uniformity Clause of the Wisconsin Constitution (see ¶
14). As to both challenges the court concluded that the classifications
made by the hub exemption are rationally related to the legitimate
governmental purpose of ensuring the vitality of Wisconsin's economy
(see ¶ 66). The court also held that 49 U.S.C.
§ 40116 precludes dormant Commerce Clause review of the hub
exemption (see ¶ 14). It found that "49 U.S.C.A.
§ 40116 demonstrates - with unmistakable clarity -
congressional consent to allow states to impose differential taxes among
air carriers" (¶ 36).
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley. Said the Chief Justice, "[b]ecause I conclude that
the Wisconsin tax system favoring a Wisconsin hub carrier imposes an
impermissible burden on interstate commerce, interfering with the very
purpose of the Commerce Clause, I dissent" (¶ 69).
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Medical Malpractice - Caps
Bartholomew v. Wisconsin
Patients Compensation Fund, 2006 WI 91 (filed 7 July 2006)
Helen Bartholomew (the wife) suffered a heart attack, which caused
brain damage and other serious physical problems. She died five years
later. Her husband and her estate brought this medical malpractice
action. A jury awarded a total of $1.2 million for noneconomic damages,
including $500,000 to the wife's estate for her predeath pain and
suffering, $350,000 to the husband for his predeath loss of the wife's
society and companionship, and the same amount for his postdeath loss of
her companionship. The circuit court and the court of appeals molded the
awards according to prevailing case law on damage caps.
The supreme court, in an opinion written by Chief Justice Abrahamson,
reversed in a decision that overruled case law on damage caps that had
blurred the distinction between predeath and postdeath noneconomic loss.
Because of the opinion's far-reaching effect and the court's close
analysis of the issues, this summary quotes extensively from the lead
"The issue in the present case is whether the following awards
collectively are limited to the maximum allowed under the cap on
wrongful death actions: the jury award for noneconomic damages to the
estate of [the wife] for her predeath pain, suffering, and disability;
the jury award to [the husband] for noneconomic damages for the predeath
loss caused by his wife's disability; and the jury award to [the
husband] for noneconomic damages for his postdeath loss of his wife's
society and companionship" (¶ 2). A majority of the court concluded
that Maurin v. Hall, 2004 WI 100, "which held that when a
victim of medical malpractice dies, the cap for wrongful death actions
limits all noneconomic damages," was "wrongly decided and must be
overturned" (¶ 3). (Justice Butler's rationale differed from those
of the lead opinion but he joined to make a majority.)
"In addition, a majority of the court, the same four justices
[Abrahamson, Bradley, Crooks, and Butler], agrees that the estate of
[the wife] is entitled to the full $500,000 award for [the wife's]
predeath pain and suffering, that [the husband] individually is entitled
to the full $350,000 award for his noneconomic damages for his predeath
loss of his wife's society and companionship, and that [the husband]
individually is entitled to the full $350,000 award for his postdeath
loss of his wife's society and companionship (wrongful death loss of
society and companionship). Justice Butler reaches this result on
different grounds" (¶ 4). The court's conclusions regarding damage
caps are carefully set forth at paragraphs 115 to 119.
"The challenge to Maurin in the present case is not to that
part of Maurin holding that, when medical malpractice results
in death, the wrongful death cap applies to a claimant's noneconomic
damages for postdeath loss of society and companionship. Nor is any
challenge made in the instant case to the constitutionality of applying
the wrongful death cap to a claimant's noneconomic damages for postdeath
loss of society and companionship in a medical malpractice case. The
present case therefore leaves undisturbed that part of Maurin
that holds the wrongful death cap applicable to a claimant's noneconomic
damages for postdeath loss of society and companionship in a medical
malpractice action" (¶ 6).
Concurring, Justice Crooks "strongly support[ed]" the lead opinion
but wrote separately to criticize the rationale of Justice Butler's
concurrence, which argued that the statutes created "an occurrence-based
total global cap on the recovery of all noneconomic damages that arise
from medical malpractice" (¶ 131). This global medical malpractice
cap was struck down as unconstitutional in Ferdon v.
Wisconsin Patients Compensation Fund, 2005 WI 125, which meant that
only the wrongful death limit remained in effect.
Justice Prosser also concurred in part and dissented in part. Along
with Justice Wilcox, he also joined Justice Roggensack's opinion, which
concurred in part and dissented in part. Justice Roggensack contended
that Maurin "correctly decided that the legislature created an
occurrence-based cap on the recovery of all noneconomic damages that
arise from medical malpractice, to which all plaintiffs and all types of
claims are subject. I also conclude that Maurin does not
prevent the plaintiffs from selecting whichever cap on noneconomic
damages they prefer" (¶ 174).
Causation - Injuries
Hanson v. American
Family Mut. Ins. Co., 2006 WI 97 (filed 12 July
Hanson was hit from behind by a truck while driving to work. She
suffered a variety of injuries, some of which healed, but she later
underwent back surgery because of recurrent neck pain. Although Hanson
followed her doctor's advice regarding the surgery, a medical expert for
the defense testified that the surgery was unnecessary and not caused by
the accident and suggested that Hanson's doctor may have committed
malpractice. A jury returned a verdict that awarded damages of far less
than the amount Hanson claimed. The court of appeals reversed and
ordered a new trial.
The supreme court, in an opinion written by Justice Wilcox, affirmed
the court of appeals. The case presented two issues. "First, is Hanson
entitled to her expenses for a surgery, admittedly well-done, but
allegedly not necessitated by her injury, just as a plaintiff is
entitled to her expenses when surgery necessitated by the injury was
negligently performed and aggravates the injury?" (¶ 2). The court
held "that because the jury concluded that Hanson was injured in the
accident, she was entitled to all of her past medical expenses,
regardless of whether Hanson's treating physician performed an
unnecessary surgery, under the rule first enunciated in Selleck v.
Janesville, 100 Wis. 157, 75 N.W. 975 (1898), as Hanson used
ordinary care in selecting her doctor" (¶ 3). Although last cited
30 years ago, "[t]he Selleck rule has been a part of Wisconsin
case law since 1898. This rule essentially states that when a tortfeasor
causes an injury to another person who then undergoes unnecessary
medical treatment of those injuries despite having exercised ordinary
care in selecting her doctor, the tortfeasor is responsible for all of
that person's damages arising from any mistaken or unnecessary surgery"
"The important questions are whether the surgery arose from an
initial injury that itself was caused by the accident and whether Hanson
used ordinary care in selecting her physician. Here, the jury determined
that Hanson was injured in the accident, and while seeking treatment
with ordinary care she had an allegedly unnecessary surgery performed.
These facts are sufficient to bring this case under the ambit of the
Selleck rule" (¶ 25). Thus, Hanson was entitled to all of
her past medical expenses ($75,000, not the $25,000 awarded by the
Second, the court held that the jury instructions were unduly
confusing and erroneous. The supreme court agreed with the court of
appeals' conclusion: "By telling the jury that it could not consider the
doctor's alleged malpractice, and at the same time telling the jury it
must find that all treatments were related to the accident, the trial
court let the jury decide that the treatment it concluded was
unnecessary was not `caused' by the accident, and was therefore not
compensable. That is not the law in Wisconsin.... In effect, the trial
court told the jury that regardless of whether the surgery was
unnecessary, they could not award the cost of the surgery unless the
jury `relate[d those injuries] ... to the accident'" (¶ 40).
This instruction, said the court, probably misled the jury, which
awarded only pre-surgery past medical expenses. "That is, although the
jury determined that Hanson had been injured in the accident, it granted
her only $25,000 in past medical expenses, as opposed to the full amount
of $78,123.97. It appears that the amounts awarded for the remaining
damages were also limited to damages incurred prior to the surgery.
Because the jury misapplied the law as to past medical expenses, there
is a reasonable probability of a different outcome with respect to the
remaining damages at issue if the jury is correctly instructed on the
law" (¶ 42).
Chief Justice Abrahamson concurred in the application of the
Selleck rule, despite a "muddled defense and a muddled record"
Justice Prosser dissented on grounds that Selleck was not
applicable and that the majority's decision commits the logical fallacy
of "post hoc, ergo propter hoc" (see ¶¶ 51-91).
Negligence - Nuisance - Public Policy
Butler v. Advanced
Drainage Sys. Inc., 2006 WI 102 (filed 13 July
A group of riparian property owners sued several defendants on
theories of negligence and nuisance for damages caused by rising water
levels in a lake. The circuit court dismissed the claims, and the court
of appeals affirmed.
The supreme court, in an opinion written by Justice Roggensack,
affirmed. The court held that the negligence claims were properly
dismissed on public policy grounds. More precisely, "the sixth public
policy factor, that imposing liability would enter a field that has no
sensible or just stopping point, is the factor that compels us to
preclude liability" (¶ 22). Rockweit v. Senecal, 197 Wis.
2d 409, 541 N.W.2d 742 (1995), provided the framework for the court's
analysis. "If we were to permit liability against the defendants before
us, we would be opening the door to property owners' claims against any
contractor who contracts with a municipality to remediate a naturally
occurring hazard, when the contractor fails to completely abate the
hazard's effects. This broad exposure to liability would chill
municipalities' efforts in attempting abatement projects. It could also
chill contractors from bidding on those types of municipal projects;
where in addition to being subject to a breach of contract action by the
municipality for not performing as they had contracted to perform, the
contractors would be subject to litigation by any property owner who
would have benefited from a successfully performed municipal contract"
The private nuisance claims fell for the same reason, because the
court determined that the plaintiffs could not have met their burden of
showing evidence "sufficient to support liability" for their damages.
"The plaintiffs' nuisance claim is based on the same allegedly negligent
abatement of the flooding around the Lake. Therefore, ... we conclude
that even if we assume, arguendo, that the plaintiffs were able to prove
all of their allegations with regard to the private nuisance claim, it
is appropriate to preclude liability for the nuisance claim based on the
same public policy factors that limit liability in the underlying
negligence claim. Were we not to do so, we would cause the potential for
liability to be tied to the label the plaintiffs applied to each claim.
Permitting the nuisance claim to proceed would also be inconsistent with
the public policy factors on which we have limited liability" (¶
Justice Roggensack also filed a separate concurring opinion, which
contended that the majority's decision to proceed on a case-by-case
basis "provides little guidance for the courts, future litigants, or the
public who may face similar legal issues in the future. I write
separately because analyzing the plaintiffs' claims under
Restatement (Second) of Torts § 324A would have
provided more guidance to those who assert or defend a tort claim based
on the breach of a contract to which the plaintiff was not a party"
Justice Bradley, joined by Chief Justice Abrahamson and Justice
Butler, dissented on three grounds. "First, I would follow the better
practice and decline to apply the public policy factors on the summary
judgment record before us. Second, even if I were to attempt an
application of the factors on the present record, that application would
not justify limiting liability at this stage of proceedings. Third, I
write to observe that this case illustrates why there is often an
uncomfortable fit between summary judgment methodology and application
of the public policy factors" (¶ 60).
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Trade Secrets Law
Civil Law Remedies - Misappropriation of Confidential Information -
Application of Computer Crime Statute - Wis. Stat. Section
Burbank Grease Servs.
LLC v. Sokolowski, 2006 WI 103 (filed 13 July 2006)
Sokolowski was employed by Burbank Grease Services in various
management positions. When he left the company, he took certain
information (for example, customer lists and other information about
Burbank's customers) without Burbank's permission and with the knowledge
that Burbank considered this information to be confidential. The
defendant later began working for a different company and then allegedly
provided the confidential information to his new employer and used the
information to solicit customers for the employer.
When Burbank became aware that the defendant was soliciting its
customers, it filed this action alleging that the defendant
misappropriated Burbank's trade secrets in violation of Wis. Stat.
section 134.90; breached his duty of loyalty to Burbank, which he owed
as Burbank's agent; intentionally interfered with Burbank's business
relationships; and committed computer crimes in violation of Wis. Stat.
section 943.70(2). Burbank also filed claims against the defendant's new
Both sides filed motions for summary judgment. The circuit court
granted the defendants' motion and dismissed the complaint. The circuit
court concluded that Burbank's confidential information was not
protected by Wis. Stat. section 134.90(6), the trade secret statute,
because the information did not meet the statutory definition of a trade
secret. The circuit court also held that the enactment of section
134.90(6) precluded all common law tort claims based on the
misappropriation of confidential information, except those that involved
information that met the statutory definition of a trade secret. The
circuit court further concluded that there had been no computer crime
under Wis. Stat. section 943.70(2) because the defendant was authorized
to obtain the computer-stored information at the time he obtained it.
The court of appeals affirmed the circuit court. See 2005 WI
App 28. In a majority decision authored by Justice Roggensack, the
supreme court affirmed in part and reversed in part.
In previous decisions in this case that were not appealed, lower
courts concluded that the confidential information described above did
not qualify as a trade secret under Wis. Stat. section 134.90(1)(c). The
supreme court accordingly did not address that question. Rather, it was
asked to decide whether section 134.90(6) precludes Burbank's other
claims for relief. The court concluded that "the plain language of Wis.
Stat. § 134.90(6)(a) appears to have the effect of making §
134.90 the exclusive remedy for civil claims based on the
misappropriation of a statutorily-defined trade secret" (¶ 20).
However, the language in section 134.90(6)(b)2. leaves available all
other types of civil actions that do not depend on information that
meets the statutory definition of a "trade secret." Therefore, any civil
tort claim not grounded in a trade secret, as defined in the statute,
remains available to Burbank (see ¶ 33).
The court also addressed the applicability of Wis. Stat. section
943.70(2)(a)6., which prohibits the willful, knowing, and unauthorized
disclosure of "restricted access codes or other restricted access
information to unauthorized persons." The court concluded that this
statute "was meant to prohibit disclosing information that would permit
unauthorized persons to access restricted or confidential information.
There has been no allegation that [the defendant] provided information
to others that would permit them to access Burbank's computer system"
(¶ 37). "In sum, we agree with the court of appeals' construction
of Wis. Stat. § 943.70(2)(a)6, that it prohibits the unauthorized
disclosure of codes, passwords or other information that grants access
to restricted-access systems. We also agree with the court of appeals'
conclusion that the statute was not meant to criminalize the disclosure
of all types of information that could be stored on a computer, when
that information was obtained with authorization in the first instance"
(¶ 39) (citation omitted).
Justice Bradley filed a dissenting opinion that was joined by Chief
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Gaming Compacts - Impact of 1993 Constitutional Amendment -
Governor's Authority to Permit Continuation of Casino-type Gaming
Dairyland Greyhound Park
Inc. v. Doyle, 2006 WI 107 (filed 14 July 2006)
In 1989 the Wisconsin Legislature granted Wisconsin's governor the
authority to enter into compacts with Indian tribes located in
Wisconsin, pursuant to the Indian Gaming Regulatory Act. By 1992,
Wisconsin's governor had entered into original compacts on behalf of the
state, thereby creating a contractual relationship between the state and
all 11 federally-recognized tribes and bands located within the state.
The original compacts, which permitted the tribes to engage in certain
Class III casino gaming on tribal land, including blackjack tables,
electronic gaming machines, and pull-tab machines, initially lasted for
seven-year terms, with automatic extensions for five-year terms, subject
to the right of either party to issue a notice of nonrenewal before
expiration of the term (see ¶ 7). The initial 1991-92
compacts were renewed in 1998 and 1999, each for a term of five years,
and were renewed again in 2003. Since 1992, therefore, Class III gaming
has been conducted on tribal land.
The present litigation stems from allegations by Dairyland Greyhound
Park that a 1993 amendment to the Wisconsin Constitution deprives the
governor of the authority to permit Wisconsin tribes to continue
conducting casino-type gaming in Wisconsin. "The 1993 Amendment changed
Article IV, Section 24 to (1) prohibit the legislature from authorizing
gambling in any form except for specific games provided for in the
amendment; and (2) narrowly define the nature of the state-operated
lottery" (¶ 8).
The parties in this case did not dispute that the original compacts
were valid when they were entered into in 1991 and 1992. The parties
disagreed, however, as to whether the 1993 amendment changes the terms
agreed to in the original compacts. "The Governor contends that the 1993
Amendment does not impact the terms of the Original Compacts. In
contrast, Dairyland asserts that the 1993 Amendment precludes the State
from renewing or amending the compacts" (¶ 17).
In a majority decision authored by Justice Butler, the supreme court
concluded that "the 1993 Amendment to Article IV, Section 24 of the
Wisconsin Constitution does not invalidate the Original Compacts.
Because the Original Compacts contemplated extending the Compacts and
amending the scope of Indian gaming within the Compacts, we further
conclude that the parties' right of renewal is constitutionally
protected by the Contract Clauses of the Wisconsin and United States
Constitutions, and that amendments to the Original Compacts that expand
the scope of gaming are likewise constitutionally protected by the
Contract Clauses of the Wisconsin and United States Constitutions. We
withdraw any language to the contrary in Panzer v. Doyle, 2004
WI 52, 271 N.W.2d 295, 680 N.W.2d 666, that would limit the State's
ability to negotiate for Class III games under the Original Compacts.
Accordingly, gaming can be expanded to the extent that the State and
Tribes negotiate for additional Class III games" (¶ 2).
Justice Crooks filed a concurring opinion that was joined by Chief
Justice Abrahamson and Justice Bradley. Justice Prosser filed an opinion
concurring in part and dissenting in part that was joined by Justices
Wilcox and Roggensack. Justice Roggensack filed an opinion concurring in
part and dissenting in part that was joined by Justices Wilcox and
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