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    Significant Supreme Court Decisions

    For many years, Daniel W. Hildebrand contributed to Wisconsin legal literature by annually describing those Wisconsin appellate decisions that he viewed to be most significant. Attorney Hildebrand passed away in late 2007; these authors, both former supreme court clerks, are attempting to pick up the Hildebrand torch.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 10, October 2008

    2007 - 08 Significant Supreme Court Decisions

    The authors highlight what they believe are the most significant decisions issued by the Wisconsin Supreme Court during its 2007- 08 term.

    Gavel by Beth Ermatinger Hanan & Daniel S. Elger

    For many years, Daniel W. Hildebrand contributed to Wisconsin legal literature by annually describing the state appellate court decisions he viewed to be most significant. Attorney Hildebrand passed away in late 2007; these authors, both former supreme court clerks, are attempting to pick up the Hildebrand torch.

    The cases described here were decided by the Wisconsin Supreme Court during its 2007-08 term, ending June 30, 2008. The cases are arranged by category (first civil, then criminal) and within these categories by order of release.

    Civil Cases

    Intervention. In Helgeland v. Wisconsin Municipalities,1 the supreme court determined that eight Wisconsin municipalities lacked the right, as a matter of law, to intervene in an action brought by current and former state employees and their same-sex domestic partners seeking state benefits. The state employees claimed that they were entitled to employee benefits available to similarly situated heterosexual state employees and their spouses. The municipalities sought to intervene because they believed an adverse decision would significantly affect their finances. Additionally, the municipalities disagreed with the Department of Employee Trust Fund's (DETF's) strategy and handling of the lawsuit.

    Wisconsin Statute section 803.09 sets out the elements of both mandatory and permissive intervention. The circuit court denied the municipalities' motion to intervene on either basis, and the court of appeals affirmed. In a 4-3 majority opinion written by Chief Justice Abrahamson, the supreme court held that the municipalities had no mandatory right to intervene under section 803.09(1) because they made no showing that their interest in the lawsuit was sufficiently "special, personal, or unique" when compared to the interest asserted by the DETF. Further, the circuit court had properly exercised its discretion in refusing permissive intervention under section 803.09(2).

    To determine whether intervention should be granted as a matter of right, courts use a flexible and highly fact-specific approach. Using this approach, the supreme court decided that the municipalities' interests were insufficiently related to the case. The municipalities failed to show that their interests were more immediate or unique than any entity could claim in virtually any action challenging the constitutionality of a state statute or that any employer could claim in an action that might affect the cost of employee benefits. Moreover, the municipalities' interests were substantially similar to those of the DETF and would be adequately represented. From a policy perspective, permitting intervention as a matter of right in constitutional challenges to statutes would thwart the efficient administration of justice and enable numerous deep-pocket entities to prevent parties from conducting and concluding their own lawsuits.

    Summary Judgment. In AccuWeb Inc. v. Foley & Lardner,2 the court reiterated the summary judgment standard of review in a legal malpractice framework and made its own factual findings. In a unanimous 6-0 decision the supreme court reversed the court of appeals, which had affirmed the circuit court, and held that AccuWeb had demonstrated genuine issues of material fact sufficient to avoid summary judgment on the issues of harm resulting from a lost patent and the amount of business valuation damages.

    The respondent law firms failed to meet their burden to demonstrate that a reasonable jury would not find sufficient evidence to award damages, in an amount supported by the evidence. Viewing the summary judgment submissions in the light most favorable to AccuWeb, the supreme court held that the loss of the patent - allegedly because one or more lawyers failed to remind AccuWeb to renew the patent - created a risk to AccuWeb's business. Further, a jury could determine that the risk resulted in a diminution of the value of AccuWeb's business. An expert's report connecting the loss of the patent to the risk that competitors would learn of its expiration and thereby use the technology previously protected by the patent supported a decreased valuation of AccuWeb. Significantly, the supreme court accepted testimony by two AccuWeb officers (testimony that the lower courts had rejected) to support the claim that the patent had enabled a certain level of company profit, and that the profit potential had been lost. Without the patent, AccuWeb was less attractive to potential purchasers. The court expressly did not require AccuWeb to show actual infringement of the patented technology to survive summary judgment.

    The court recognized value in the ability to license or assign the invention protected by the patent. Because AccuWeb lost that ability to license or assign, the lapse of the patent was a loss that a jury could reasonably find to constitute sufficient evidence of damages. Justice Ziegler did not participate.

    Marital Property. The supreme court takes relatively few family law cases. But in Steinmann v. Steinmann,3 the court upheld an award of maintenance to the ex-husband and a division of marital property under the couple's marital property agreement (MPA). To reach that result, the court primarily relied on the erroneous-exercise-of-discretion standard of review and a clarification of tracing and transmutation principles. Further, the court declined to treat the MPA's provisions as creating a presumption of indivisibility equal to the presumption of indivisibility under Wis. Stat. section 767.255. Justice Butler wrote for a unanimous court. Justice Ziegler did not participate.

    Tony and Rose Steinmann were married for 10 years. They had a limited MPA. The couple and Rose's company, DSI, received from a vendor lawsuit a settlement of $1.35 million, which ultimately was deposited into a savings account held by Rose. The Steinmanns jointly used a portion of the settlement to buy a second residence and also used the savings account to purchase joint interests in other real estate and personal vehicles. They also used planes, boats, and a vehicle owned by DSI.

    Beth Ermatinger Hanan Daniel S. Elger

    Beth Ermatinger Hanan, U.W. 1996, is an appellate and trial practitioner and is managing member of Gass Weber Mullins LLC, Milwaukee. She also is vice chair of the Wisconsin Judicial Council. Daniel S. Elger, Marquette 2005, is an associate in the firm, practicing in commercial litigation and products liability.

    The primary reason for supreme court review was that both parties urged that the holding in Derr v. Derr4 should be limited to cases involving gifted and inherited property. In Derr, the court explained that tracing and transmutation (or donative intent) determinations are inquiries that can assist in ascertaining the identity and character of property. Although tracing does not generally reveal whether property is divisible, the existence of donative intent can help determine the character of property as divisible or not. To the extent that the decision in Gardner v. Gardner5 implied that transmutation applied only to gifted and inherited properties, the Steinmann court overruled it. The court discerned no compelling policy reason to render transmutation or donative intent principles inapplicable to property initially classified as individual under an MPA.

    The court rejected Rose's tracing argument on factual and equitable grounds. First, Rose had not demonstrated that the funds in the savings account used to purchase the real estate were hers alone, because the record established that the savings account contained cash deposits from Tony, proceeds from the sale of jointly owned property, and Tony's share of the lawsuit settlement. Even if Rose had traced the funds as wholly hers, making the purchased real estate her individual property under the MPA, tracing did not establish that the property either was indivisible or could not be reclassified. Likewise, the MPA did not prevent either later reclassification or chapter 767 equitable division of property that had been jointly titled. Indeed, the MPA permitted the parties to change its terms by written instrument. As a result, the court upheld the transmutation analysis based on the deeds that jointly titled the subject property.

    Concerted Action. The supreme court took a rare opportunity to interpret Wis. Stat. section 895.045(2), the concerted action statute. In Richards v. Badger Mutual Insurance Co.,6 the court considered whether three people involved in the purchase of beer for underage drinkers were part of another common scheme or plan, namely, a plan to consume beer to the point of intoxication and the subsequent decision of one of them to drive while intoxicated. Had the three people been found to have had such a common plan, Richards, the widow of a driver whose car was struck by defendant Zimmerlee, could have recovered under joint and several liability. Ultimately, however, a 4-3 majority led by Justice Roggensack ruled that there was no common plan that caused injury to Richards.

    Schrimpf approached his older coworker, Pratchet, to buy beer for Schrimpf and Zimmerlee, both of whom were minors. Pratchet agreed, so the three of them drove to a grocery store where Pratchet purchased an 18-pack of beer with Zimmerlee's money. The three people split up for a few hours, but later Schrimpf and Zimmerlee reconnected. They brought the 18-pack with them to a party, where both drank some of the beer. Early the next morning, Zimmerlee drove from the party with Schrimpf as a passenger. After driving only half a block, their car collided with one driven by Christopher Richards, killing him instantly.

    Just before trial, the parties entered into a settlement agreement. They asked the circuit court to decide whether Schrimpf, Zimmerlee, and Pratchet had acted in accord with a common scheme or plan that caused damage to the plaintiff. The court held the defendants jointly and severally liable, pursuant to Wis. Stat. section 895.045(2).

    On review, the supreme court traced the history of joint and several liability in Wisconsin and the further restrictions placed on such liability by section 894.045. Citing Danks v. Stock Building Supply Inc.,7 the court acknowledged that section 894.045(2) only comes into play after a defendant is deemed liable and then applies only to those liable defendants who acted in concert. Under Collins v. Eli Lilly Co.,8 the action that harmed Richards must have been the action that was undertaken to further the defendants' agreement. Considering other case law,9 treatises, and the Restatement (2d) of Torts § 876, the court concluded that section 895.045(2) represents the codification of the concerted action theory of liability.

    Applying the factual predicates of concerted action liability, the majority held that although Pratchet was a part of the plan to purchase beer, that plan and Pratchet's participation ended. After the beer was purchased, Schrimpf's and Zimmerlee's conduct was merely parallel. The facts revealed no common plan to drink until intoxicated and then to drive. Accordingly, Schrimpf was not liable under a concerted action theory.

    Open Records. In a case concerning the application of Wisconsin's open records law, WIREdata Inc. v. Village of Sussex,10 the plaintiff made a series of open records requests to three municipalities seeking access to their property assessment records. The municipalities had contracted with private, independent assessors to complete their property assessments. Before the municipalities responded to WIREdata's initial request, WIREdata made a further "enhanced" request for the data in the format that was created and maintained by the assessors in a computerized database; however, these requests never reached the municipalities themselves.

    WIREdata filed three separate mandamus actions against the municipalities and the corresponding assessors before any records were produced. The municipalities eventually provided WIREdata with the information it requested in PDF form. This data complied with the initial requests but not with the enhanced requests.

    First, the supreme court held that WIREdata did not properly commence the mandamus actions because the open records requests had not been denied before filing. The full records, in written form, were offered to WIREdata within weeks of its requests, and the municipalities were working diligently toward ascertaining the legal and technical requirements of producing the records. When requests are complex, municipalities should be afforded a reasonable time to respond.

    Second, WIREdata's requests were sufficient as to time and subject matter because the municipalities were able to fulfill the requests using the PDFs ultimately produced. Third, a municipality's independent contractor is not an authority under the open records law and thus not a proper recipient of an open records request. The statutory definition of authority clearly envisions a public or governmental entity as the proper body to respond to an open records request.

    Finally, the municipalities did not violate the open records law. The PDF files satisfied WIREdata's open records requests, as the initial requests were worded. Because the enhanced requests were not submitted to the municipalities, those requests were not enforceable. Moreover, requesters need not be given access to an authority's electronic databases to examine or copy them or extract information. It is sufficient for an authority to provide a copy of the relevant data in an appropriate format.

    Arbitration Awards. Despite the very limited opportunity to vacate arbitration awards, in Racine County v. International Ass'n of Machinists & Aerospace Workers,11 the supreme court affirmed a circuit court order that did vacate such an award. An arbitrator sided with the union in a dispute with the county involving the retirement and rehiring of family court social service workers as independent contractors. The arbitrator's award included an order limiting who the director could hire. A 4-3 supreme court majority agreed that the arbitral award was contrary to Wis. Stat. section 767.405, which allows a family court services director to employ staff for mediation and placement study services. In addition, the award conflicted with constitutional separation of powers principles, in part because the director reports to the local circuit court judges. Finally, vacation of the award was proper under Wis. Stat. section 788.10 because the arbitrator exceeded her authority by not considering section 767.405 and relevant case law.

    The director advised several family court social workers of the possibility of early retirement or layoff. He told two of them that their positions would be eliminated but that they might be rehired on a contract basis. The social workers were covered under a collective bargaining agreement (CBA) between Racine County and the International Association of Machinists and Aerospace Workers (IAM). Two of the social workers retired between late 2003 and early 2004. Both of them, along with a previously retired social work manager, were rehired by the director as independent contractors at or near their prior pay and duties. Shortly after their rehire, the IAM grieved the matter and arbitration ensued.

    The arbitrator candidly acknowledged that her ruling made no attempt to either interpret or apply statutory law. Instead, she relied on the CBA to conclude that the county had improperly displaced three positions from the bargaining unit and had replaced those positions with independent contractors to take the positions off the tax levy.

    Writing for the majority, Justice Crooks acknowledged the very limited scope of review of an arbitration award. Nonetheless, under Wis. Stat. section 788.10(1)(d), when an award exceeds the power of the arbitrator, the reviewing court must overturn it. As an initial matter, the award violated the statutory provisions enabling the director, under supervision of the local judiciary, to fill positions and provide statutorily-mandated services to families. The court reasoned that a CBA and an ensuing arbitral award may not trump such statutory, judicial branch authority or risk violating separation of powers. A CBA provision that would abrogate a statutory function of the judicial branch is invalid and unenforceable.

    The court also found that the arbitrator exhibited a manifest disregard for the law by making no attempt to apply or interpret the relevant statute when the county raised the statute as an issue. An arbitrator exceeds his or her authority by manifestly disregarding the law or by making an award that is illegal or that violates a strong public policy.

    Economic Loss Doctrine. Expanding the reach of the economic loss doctrine, a 4-3 majority in Below v. Norton12 held that the doctrine bars common-law claims for intentional misrepresentation in real estate transactions, whether such claims occur in the context of residential sales or noncommercial sales. The court drew no distinction between the terms residential and noncommercial.

    Below purchased a house from the Nortons. In the property condition report, the Nortons noted that they were not aware of any defects with the house's plumbing system, save for a minor problem. After the deal closed, Below learned that the sewer line that ran between the house and the street was broken. Below filed an action against the Nortons alleging intentional misrepresentation, among other causes of action.

    The supreme court had previously applied the economic loss doctrine to bar both negligence and strict liability claims in the context of consumer goods transactions.13 The economic loss doctrine also has been held to bar recovery for solely economic losses in an intentional misrepresentation case.14 Additionally, the court had held that the economic loss doctrine can bar some common-law misrepresentation claims in real estate transactions.15

    The court also relied on the decisions in Linden v. Cascade Stone Co.16 and Wickenhauser v. Lehtinen17 to reach its holding. The Linden court held that the economic loss doctrine barred the negligence claims of two homeowners against certain subcontractors who were negligent in performing work under a written construction contract. Linden involved residential real estate. In Wickenhauser, the court applied the fraud-in-the-inducement exception to the economic loss doctrine in the context of a noncommercial real estate transaction. The court noted that in Wickenhauser, the court drew no distinction between the terms residential and noncommercial.

    After concluding that common-law claims for intentional misrepresentation in real estate transactions are barred by the economic loss doctrine, the court was careful to note that Below was left with a potential remedy under Wis. Stat. section 100.18.

    Scheduling Orders. In Hefty v. Strickhouser,18 the supreme court ruled that a circuit court can enter a scheduling order setting a time frame for responding to a summary judgment motion different from that provided by Wis. Stat. section 802.08(2). Local circuit court rules cannot, however, depart from the provisions of section 802.08(2).

    The circuit court entered a scheduling order after the parties submitted a scheduling questionnaire. As is customary, the order indicated that a summary judgment motion needed to be filed by a certain date. The order also attached a then-existing Walworth County local rule entitled "Standard Summary Judgment Procedure." This local rule provided 20 days after service of a summary judgment motion for a respondent to serve and file a response brief and supporting documentation. The scheduling order also stated that failure to abide by the order may result in sanctions.

    After Strickhouser filed a summary judgment motion, Hefty filed her response five days after the deadline provided by the local rule attached to the scheduling order. Strickhouser moved to strike the response, and at the hearing Hefty's attorney indicated that he simply followed section 802.08(2) to determine the date to file and serve a response. As a sanction for the late filing, the circuit court struck Hefty's summary judgment response and granted summary judgment to Strickhouser. The court of appeals reversed and remanded, and the supreme court affirmed.

    Wisconsin Statute section 802.10 provides that Wisconsin courts have discretion to control their dockets and calendar practice. This discretion includes setting of the time to file motions and the appropriateness and timing of summary judgment adjudication under section 802.08. This discretion also includes the court's ability to use scheduling questionnaires to satisfy the requirement that the circuit court consult with the parties before entering a scheduling order.

    The language of section 802.08(2) indicates that scheduling orders may trump section 802.08(2). In entering a scheduling order that departs from section 802.08(2), the court need not explain on the record its reasons for doing so. The Hefty court withdrew language to the contrary from Hunter v. AES Consultants Ltd.19

    Notably, however, local circuit court rules may not trump the deadlines in section 802.08(2). The court invalidated that portion of the local rule that established a response deadline different from that set in section 802.08(2). Here, because the court's scheduling order attempted to apply a void rule by attaching it to an order, the scheduling order's deadline for responding to a motion for summary judgment was invalid. The circuit court could have imposed the same 20 day time frame for responding to a summary judgment motion by specifying the response time in the scheduling order itself. Because the circuit court's sanction of the plaintiff was premised on a violation of a deadline based on a void local rule, the supreme court concluded that the circuit court had applied an improper standard of law in granting Strick-houser's summary judgment motion.

    Failure to Warn. In Hornback v. Archdiocese of Milwaukee,20 former Kentucky school students who allegedly were abused by their Catholic-school teacher brought claims of negligent failure to warn against two Wisconsin dioceses in which the teacher, Kazmarek, had previously been employed.

    The plaintiffs alleged that the Archdiocese of Milwaukee and the Diocese of Madison knew or should have known of Kazmarek's propensity for sexually abusing children, and as such were negligent when they failed to take certain steps to prevent his future abusive conduct. Specifically, the plaintiffs claimed a negligent failure to warn unforeseeable third parties of Kazmarek's propensity for abuse and a failure to refer him to police.

    Justice Butler wrote for a unanimous court in concluding that the plaintiffs had failed to state a claim for relief against the Madison Diocese. Even if the plaintiffs had stated a viable negligence claim, recovery would be precluded on public policy grounds. To allow recovery would send the court down a slippery slope with no just stopping point.

    The court viewed the plaintiffs' claims as alleging breach of a general duty of care, not of a particular duty to warn. In doing so, the court declined to adopt a California version of a negligent referral claim, especially because here there was no allegation of an affirmative misrepresentation by the defendant. Mere knowledge of past sexual abuse, or presumed knowledge of a continued sexual propensity, is not enough to establish negligence. Requiring a broad notification to potential employers around the country, as plaintiffs urged, would create a vast obligation dramatically exceeding any approach to failure to warn recognized in Wisconsin or anywhere else. Moreover, the Hornback plaintiffs alleged that specific victims were unforeseeable. But foreseeability of specific victims is particularly relevant when an affirmative obligation, such as the duty to warn, is sought. The lack of awareness of particular victims and the expansive duty to warn distinguished this case from Gritzner v. Michael R.21

    Finally, the court addressed the public policy implications of sustaining Hornback's claims against the Diocese, even though the court seldom considers such policy factors at the motion-to-dismiss stage. To permit recovery on the sweeping claim of failure to warn unforeseeable victims effectively would require employers to warn all prospective employers about any bad acts of ex-employees. Such a rule would begin a descent down a slippery slope with no sensible stopping point and impose huge affirmative burdens on former employers without limitation on the type of knowledge or the presence of any relationship between the past and potential employer.

    The court was evenly divided over whether to dismiss or maintain the claims against the Archdiocese of Milwaukee and therefore affirmed the court of appeals' dismissal of those claims. Justice Prosser did not participate.

    Criminal Cases

    Sentencing. In State v. Straszkowski,22 the court clarified the standards for read-in charges in Wisconsin. In a unanimous decision authored by Chief Justice Abrahamson, the court held that no admission of guilt from a defendant is required (or should be deemed made) for a read-in charge to be considered for sentencing purposes and to be dismissed. The court specifically withdrew language from any case law intimating that when a charge is read in, a defendant must admit or is deemed to admit the read-in charge for sentencing purposes. To avoid confusion in cases in which the defendant does in fact admit guilt of the read-in charge, the court instructed Wisconsin lawyers and judges to avoid the terminology admit or deemed admitted in referring to or explaining a defendant's agreement to read in a dismissed charge.

    In addition, circuit courts should advise a defendant that the court may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the state is prohibited from future prosecution of the read-in charge.

    In this case, Straszkowski had sought to withdraw his guilty plea of second-degree sexual assault of a child, arguing that his plea was not entered knowingly and intelligently because he was unaware that a charge dismissed but read in under a plea agreement is deemed admitted for purposes of sentencing the defendant on the charge to which the defendant pleaded guilty. The court was unconvinced because nowhere did the circuit court conclude that Straszkowski admitted (or was deemed to have admitted) the read-in charge or that Straszkowski was guilty of the read-in charge. Ultimately, the court affirmed denial of Straszkowski's motion to withdraw his guilty plea.

    Dog Sniff Searches. In State v. Arias,23 the court analyzed whether a dog sniff of a vehicle was a search under the Wisconsin Constitution and whether conducting the dog sniff unreasonably prolonged Arias's seizure. Schillinger, a minor, was pulled over by Officer Rennie for suspicion of driving a vehicle that contained intoxicants; Arias was a passenger. After calling for back-up, Rennie approached the car, explained why he had made the stop, and took Schillinger's license. Schillinger's breath test revealed no trace of alcohol, and the officer asked if Schillinger had any drugs in the car. Rennie then had his police dog perform a sniff around the exterior of the car, which ultimately led to a further search of the vehicle's interior, where drugs and a switchblade were found. Arias was charged and convicted on several criminal counts following this investigatory stop. Arias appealed, and the supreme court accepted review on certification.

    Writing for a 4-3 majority, Justice Roggensack held that a dog sniff of the exterior of a vehicle located in a public place does not constitute a search under the Wisconsin Constitution. The court followed Fourth Amendment jurisprudence of the U.S. Supreme Court in interpreting the right to be free of unreasonable searches under the Wisconsin Constitution. A person has no reasonable expectation of privacy in the air space surrounding a vehicle that he or she is occupying in a public place, and a dog sniff is much less intrusive than other activities held to be searches.24

    The court next considered whether Arias's seizure was unreasonable. The court first determined that the traffic stop was extended by 78 seconds, or the time between Rennie's questions to Schillinger and the conclusion of the dog sniff. The circuit court had erroneously concluded that the traffic stop was extended by approximately 38 minutes from the conclusion of the dog sniff to Arias's ultimate arrest. The 38 minutes that Schillinger and Arias were detained following the dog sniff was occupied by Rennie's search of the vehicle, his pat-down searches, and the activities flowing from the search, not the time to complete the dog sniff. Thus, the supreme court assessed only the 78-second extension of Arias's detention in deciding whether the controlled substance investigation was reasonable under all the circumstances.

    The 78-second intrusion on Arias's liberty caused by the dog sniff was reasonable. The dog sniff was part of the on-going traffic stop of Schillinger that occurred because she was a minor and was transporting alcohol that Arias had placed in her vehicle. The dog sniff furthered the public's interest in preventing the flow of illegal drugs. In addition, Rennie diligently pursued his investigation in a manner that could quickly confirm or dispel his suspicions relative to the stop. From the time Rennie observed beer being loaded into a minor's vehicle until the release of the dog, only 4 minutes, 10 seconds - a reasonable amount of time - elapsed.

    Admission of Bank Records. Admission of bank records via affidavits from records custodians violates neither statutory procedure nor the defendant's constitutional right of confrontation. In State v. Doss,25 the defendant Doss was charged with unlawfully retaining funds from her father's estate, in violation of Wis. Stat. section 943.20(1)(b) and (3)(c). She argued that certain bank records should not have been allowed into evidence because the circuit court had admitted the records without testimony of supporting witnesses. In a unanimous decision authored by Justice Butler, the supreme court upheld the admission.

    Doss argued that she was not provided adequate notice under Wis. Stat. section 891.24, which concerns evidence from financial institution books. Doss said she should have received notice that the bank records would be introduced, not through live testimony of records custodians but by affidavit. As a matter of first impression, the court held that the plain text of section 891.24 does not impose the notice requirement urged by Doss. The statute only requires that the books be open to the inspection of all parties to the action or proceeding. In contrast, the plain text of the more general authentication provision, Wis. Stat. section 909.02(12), does contain a notice requirement. The three days' notice Doss received before trial was reasonable.

    Doss also argued that the lack of in-person authenticating testimony implicated her Confrontation Clause rights. She argued that given the testimonial nature of the disputed records, the state did not produce required evidence of unavailability of the declarants who signed the affidavit, nor did it provide a prior opportunity for Doss to cross-examine them. The court held that both federal and state supreme court precedent supported the conclusion that the affidavits were nontestimonial.26 Moreover, the Confrontation Clause should be interpreted in light of its historic context, focused on testimonial statements by witnesses giving testimonial evidence against an accused. In contrast, the affidavit merely fulfilled a statutory procedure for verifying nontestimonial bank records and did not supply substantive evidence of guilt. As long as section 891.24 is followed, a bank record custodian's affidavit prepared for litigation is a certification of authenticity for foundational purposes only, falls under Crawford's business record exception, and is not testimonial for Confrontation Clause purposes.

    Endnotes

    1Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1.

    2AccuWeb Inc. v. Foley & Lardner, 2008 WI 24, 308 Wis. 2d 258, 746 N.W.2d 447.

    3Steinmann v. Steinmann, 2008 WI 43, -- Wis. 2d --, 749 N.W.2d 145.

    4Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170.

    5Gardner v. Gardner, 190 Wis. 2d 216, 527 N.W.2d 701 (Ct. App. 1994).

    6Richards v. Badger Mut. Ins. Co., 2008 WI 52, -- Wis. 2d --, 749 N.W.2d 581.

    7Danks v. Stock Bldg. Supply Inc., 2007 WI App 8, 298 Wis. 2d 348, 727 N.W.2d 846.

    8Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984).

    9Bruttig v. Olsen, 154 Wis. 2d 270, 453 N.W.2d 153 (Ct. App. 1989); Ogle v. Avina, 33 Wis. 2d 125, 146 N.W.2d 422 (1966).

    10WIREdata Inc. v. Village of Sussex, 2008 WI 69, -- Wis. 2d --, 751 N.W.2d 736.

    11Racine County v. International Ass'n of Machinists & Aerospace Workers, 2008 WI 70, -- Wis. 2d --, 751 N.W.2d 312.

    12Below v. Norton, 2008 WI 77, -- Wis. 2d --, 751 N.W.2d 351.

    13State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 592 N.W.2d 201 (1999).

    14Digicorp Inc. v. Ameritech Corp., 2003 WI 54, 262 Wis. 2d 32, 662 N.W.2d 652.

    15Van Lare v. Vogt Inc., 2004 WI 110, 274 Wis. 2d 631, 683 N.W.2d 46.

    16Linden v. Cascade Stone Co., 2005 WI 113, 283 Wis. 2d 606, 699 N.W.2d 189.

    17Wickenhauser v. Lehtinen, 2007 WI 82, 302 Wis. 2d 41, 734 N.W.2d 855.

    18Hefty v. Strickhouser, 2008 WI 96, -- Wis. 2d --, 752 N.W.2d 820.

    19Hunter v. AES Consultants Ltd., 2007 WI App 42, 300 Wis. 2d 213, 730 N.W.2d 184.

    20Hornback v. Archdiocese of Milwaukee, 2008 WI 98, -- Wis. 2d --, 752 N.W.2d 862.

    21Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906.

    22State v. Straszkowski, 2008 WI 65, -- Wis. 2d --, 750 N.W.2d 835.

    23State v. Arias, 2008 WI 84, -- Wis. 2d --, 752 N.W.2d 748.

    24United States v. Place, 462 U.S. 696 (1983).

    25State v. Doss, 2008 WI 93, -- Wis. 2d --, 754 N.W.2d 150.

    26Crawford v. Washington, 541 U.S. 36 (2004); State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811.




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