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    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    Prof. Daniel D. BlinkaProf. Thomas J. Hammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 4, April 2008

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    by Prof. Daniel D. Blinka &
    Prof. Thomas J. Hammer

    Attorney Fees

    Reasonableness - Contingent Fees

    Maynard Steel Casting Co. v. Sheedy, 2008 WI App 27 (filed 23 Jan. 2008) (ordered published 20 Feb. 2008)

    Sheedy recovered about $427,000 on behalf of Maynard Steel in a class action lawsuit. Under terms of a contingent fee agreement, Sheedy retained about $138,000 in attorney fees. The circuit court ordered Sheedy to disgorge more than $132,000. In essence, the court invalidated as unreasonable the fee agreement. The circuit court determined that Sheedy had essentially "monitored" the class action lawsuit and would have expended no more than a dozen hours to perform the professional services rendered (see ¶ 11).

    The court of appeals, in an opinion written by Judge Anderson, affirmed. The court conceded both the importance and necessity of contingent fee agreements to the civil justice system. Accordingly, the court took a "broader approach" to the agreement's propriety, as mandated by case law, which takes into account that occasional "windfalls" are offset by more frequent failures. The court also considered the factors set forth in SCR 20:1.5(a), three of which loomed large. First, Sheedy conceded that he had "little experience" with class actions and "no experience" with antitrust litigation. Thus, his "time and labor" alone supported the conclusion that the contingent fee agreement was unreasonable. Second, although the client recovered more than $500,000, it owed 15 percent to the class action counsel, a fact that only underscored that Sheedy had invested minimal time (and no costs) in bringing about the result (see ¶¶ 22-23). Finally, Sheedy took "virtually no risk" (¶ 24). In sum, the circuit court properly found the fee agreement unreasonable based on its inherent power to scrutinize such matters. Expert testimony was not required.

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    Commercial Law

    Fiduciary - Holder in Due Course

    Willowglen Academy v. Connelly Interiors Inc., 2008 WI App 35 (filed 29 Jan. 2008) (ordered published 20 Feb. 2008)

    Connelly Interiors did extensive contracting work in the private residence of Jansen, chief financial officer and a part owner of Willowglen Academy. Jansen paid for the work with several checks drawn on Willowglen's account and purportedly signed by Willowglen's co-presidents. Jansen, however, was not authorized to issue the checks, which were produced using a check machine and a facsimile signature stamp. After learning of Jansen's misappropriations, Willowglen brought a claim against Connelly to recover the payments. The circuit court granted summary judgment in favor of Willowglen under the Uniform Fiduciary Act (UFA). See Wis. Stat. § 112.01(6).

    The court of appeals, in an opinion written by Judge Curley, affirmed. First, Connelly knew that Jensen was Willowglen's fiduciary. "While Connelly may not have known the precise fiduciary arrangement (i.e., Connelly thought Jansen was sole owner when in fact he was part owner), Connelly nevertheless knew that Jansen was a fiduciary of the Willowglen business. Connelly cannot avoid this conclusion simply by asserting that it did not know the exact nature of Jansen's fiduciary status. [Wis. Stat.] § 112.01(6) imposes no such requirement" (¶ 13). Second, Jansen "drew" the checks, for purposes of the statute, even though his name and signature did not appear on them. "Here, Jansen drew the checks by using a check machine and the facsimile stamp containing the signatures of Willowglen's co-presidents, which is another way to effectuate a signature" (¶ 17).

    Third, although Connelly acted in good faith, it nonetheless knew that Jansen drew from Willowglen's funds for Jansen's personal benefit. Fourth, Connelly was not a holder in due course. "In light of our conclusion that Connelly knew Jansen was Willowglen's fiduciary and that it had actual knowledge that the funds drawn by Jansen from Willowglen's account were for Jansen's personal benefit, it follows that the checks were `irregular,' such that they `call[ed] into question [their] authenticity'" (¶ 21).

    The court also held that such claims are governed by the six-year statute of limitation. Willowglen's UFA claim was "separate and distinct" from a conversion claim, and it did not arise under, or "morph" into, a claim under the Uniform Commercial Code.

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    Contempt

    Remedial Contempt - Compensation for Contempt Victims Even Though Contempt Has Ceased

    Christensen v. Sullivan, 2008 WI App 18 (filed 29 Jan. 2008) (ordered published 20 Feb. 2008)

    This case originated as a class action suit challenging confinement conditions in the Milwaukee County Jail. Ultimately the parties resolved their differences in a consent decree in 2001. Among the decree's terms were a provision concerning the length of an inmate's stay in the booking area of the jail and a provision that no inmate would be kept in that area for longer than 30 hours without being assigned to a bed approved by the Wisconsin Department of Corrections for overnight housing.

    Several years later the plaintiffs moved for enforcement of the decree, alleging numerous and persistent violations thereof by the defendants. The parties agreed that there were approximately 16,000 violations of the 30-hour requirement between 2001 and 2004 (see ¶ 5). They further agreed that these violations had ceased by June 2005 (see ¶ 6). The circuit court concluded in 2006 that Milwaukee County's actions in violating the decree constituted contempt of court. However, it held that sanctions or compensation for continuing contempt were not available because the county had ceased violating the decree.

    In a majority decision authored by Judge Kessler, the court of appeals concluded that the remedy of sanctions under Wis. Stat. section 785.04 for continuing contempt is applicable to the contempt found by the circuit court here (see ¶ 1). "The legislature, in Wis. Stat. § 785.04(1)(a), specifically authorizes payment of money to compensate a victim for an `injury suffered by the party as the result of a contempt of court.' Use of the past tense in the statute plainly authorizes payment for injuries that occurred in the past. The legislature apparently recognized that bringing a party into compliance with a court order did not necessarily cure the harm the victim of the noncompliance had already sustained because of the violation of the court order" (¶ 12). "Under Wis. Stat. ch. 785, our courts have imposed, or approved, the payment of money to the victim of disobedience to the court order as remedial sanctions for injury sustained, although the disobedience had ended when the financial sanction was, or was to be, determined" (¶ 13).

    In this case, "[b]ecause of the County's violations, inmates in the booking area were forced to endure a variety of unsafe and unsanitary conditions because of overcrowding which were specifically prohibited by the Consent Decree. The trial court graphically described these violations as including, among other things, forcing inmates to sleep on the floor next to urinals, bug-infested cells, bodily fluids on the floors, and bad odors. As we have seen, when the purpose of the court's order has been thwarted for a substantial period of time by noncompliance, and the victim(s) of the noncompliance have suffered unremedied injury as a direct result of that noncompliance, a remedial sanction is not limited to belated technical compliance with the face of the court's order" (¶ 23).

    Accordingly, the court of appeals remanded this case to the circuit court "to determine, in light of this decision and Wis. Stat. § 785.04, the `sum of money sufficient to compensate' the inmates held in violation of the Consent Decree for the `loss or injury suffered,' and such further proceedings consistent with this opinion as may be appropriate" (¶ 24).

    Judge Fine filed a concurring opinion to emphasize that the clear language of the contempt statute governs the outcome of this case. "Under Wis. Stat. § 785.04(1)(a)'s forthright and unambiguous directive, the plaintiffs are entitled to be compensated for the losses and injuries they suffered as a result of Milwaukee's clear and blatant contempt" (¶ 25).

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    Criminal Law

    Bomb Threats - Constitutionality of Wis. Stat. Section 947.015

    State v. Robert T., 2008 WI App 22 (filed 15 Jan. 2008) (ordered published 20 Feb. 2008)

    The circuit court dismissed a delinquency petition against Robert T., who allegedly violated Wis. Stat. section 947.015 by fomenting a bomb scare. The judge found the statute unconstitutional. The court of appeals, in an opinion authored by Judge Curley, reversed.

    Applying First Amendment law, the court held that section 947.015 "must be read with the requirement that only `true threats' can be prosecuted. Here, the police who responded to Robert T.'s phone call believed the threat was real. Also, Robert T. apparently intended to frighten the listener; thus, his call appears to fall within the ambit of a `true threat.' Therefore, the statute is constitutional" (¶ 16).

    The court declined to limit the scope of "true threats" in light of recent case law. "Certainly if the Supreme Court meant to severely limit the definition of `true threats' to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged. They have not been, and we are satisfied that Robert T.'s interpretation is wrong" (¶ 19).

    Child Pornography - "Reality" - False Confessions

    State v. Van Buren, 2008 WI App 26 (filed 3 Jan. 2008) (ordered published 20 Feb. 2008)

    In a decision authored by Chief Judge Brown, the court of appeals affirmed the defendant's convictions for sexual assaulting a child, exposing a child to harmful material, and possessing child pornography. First, the court was satisfied that the jury had a sufficient basis to find that the pornographic pictures depicted actual persons (children) and events and were not products of a "virtual reality." "In this case, the jury was handed pictures that look, for all the world, like photographs of children engaged in sexually explicit conduct. The jury by its verdict drew the inference that the pictures were photographs of children engaged in sexually explicit conduct. Though Van Buren urges that one could also infer that the images were computer-generated, the task of an appellate court is not to search for inferences inconsistent with guilt" (¶ 14).

    Nor was the defendant denied effective assistance of counsel. Although expert testimony on "false confessions" may have been admissible, trial counsel was not constitutionally deficient for having failed to proffer it. The court rejected a second ineffective assistance claim that related to jury instructions on unanimity. In essence, there was no reason to believe that a jury may have found images in one picture to have been computer-generated while those in another were real.

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    Criminal Procedure

    Sentence Credit - Concurrent Sentences Imposed at Same Time

    State v. Johnson, 2008 WI App 34 (filed 24 Jan. 2008) (ordered published 20 Feb. 2008)

    The defendant was arrested in 2004 for a drug offense and entered a guilty plea (the "2004 case"). He posted bail and was released pending sentencing. In 2005, while still awaiting sentencing in the 2004 case, he was arrested for a new drug offense (the "2005 case"). Following this arrest, the defendant remained "free" on bail in the 2004 case, but he spent 50 days in custody after being arrested but before being released on bail in the 2005 case.

    The defendant eventually pleaded guilty in the 2005 case, and a joint sentencing hearing was held for both the 2004 and the 2005 cases. He received one year of initial confinement followed by 18 months of extended supervision in the 2004 case. He received a concurrent sentence of one year of initial confinement followed by one year of extended supervision in the 2005 case. The circuit court granted him credit against the sentence in the 2005 case for the 50 days he spent in custody following his 2005 arrest. He did not receive credit for those days against the sentence in the 2004 case.

    After sentencing, the defendant filed a postconviction motion seeking credit for the 50 days against the sentence for the 2004 case. The circuit court denied the request. In a majority opinion authored by Judge Lundsten, the court of appeals affirmed the circuit court.

    The sentence credit statute requires an award of credit against each sentence imposed "for all days spent in custody in connection with the course of conduct" underlying the sentence. See Wis. Stat. § 973.155(1)(a). The issue in this case was whether the "in connection with the course of conduct" requirement applies individually to each concurrent sentence imposed at the same time. The defendant argued that, under State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), when concurrent sentences are imposed at the same time, credit due against any individual sentence must be awarded against all concurrent sentences. The appellate court disagreed. It concluded that "the plain language of the sentence credit statute authorizes sentence credit only when custody is `in connection with' the sentence imposed. This `in connection with' requirement applies to each sentence individually, even when concurrent sentences are imposed at the same time" (¶ 9). Thus, the circuit court correctly denied sentence credit in the 2004 case because the 50 days of credit the defendant sought against that sentence was not time in custody "in connection with the course of conduct for which" the sentence was imposed in that case(¶ 33).

    The appellate court did note that defense attorneys often ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and remain in custody on cash bail on subsequent charges. They do so precisely because they want to ensure sentence credit on both offenses (see ¶ 32) (quoting State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997)). That, however, did not occur in this case because the defendant remained "free" on bail in the 2004 case while simultaneously being held in custody on the 2005 case.

    Judge Dykman filed a dissenting opinion.

    Search and Seizure - Search Incident to Issuance of Citation

    State v. Marten-Hoye, 2008 WI App 19 (filed 24 Jan. 2008) (ordered published 20 Feb. 2008)

    City of Madison police officer Ben-Ami and her partner stopped the defendant and released her after determining that she was not violating the city's curfew ordinance. The defendant then began yelling profanities and waving her hands. A small crowd gathered to watch, and Ben-Ami reapproached the defendant, telling her that she was under arrest for disorderly conduct. Ben-Ami placed the defendant in handcuffs and told her she would receive a city ordinance violation citation and then be released if she were cooperative. As Ben-Ami's partner began filling out a citation for the defendant, Ben-Ami searched the defendant and discovered cocaine.

    The defendant moved to suppress the evidence discovered during the search. She argued, among other things, that the officers did not have authority to perform a search incident to arrest because she was never arrested. The circuit court denied the motion.

    In a decision authored by Judge Dykman, the court of appeals concluded that the police conduct described above did not effectuate an arrest of the defendant, and the officers therefore could not conduct a valid search incident to arrest. Rather, in the view of the appellate court, the defendant was searched incident to receiving a municipal citation and, as determined by the U.S. Supreme Court in Knowles v. Iowa, 525 U.S. 113 (1998), the Fourth Amendment does not permit searches incident to issuing citations (see ¶ 13).

    Whether the defendant was actually arrested by the officers was thus crucial to the outcome of this appeal. The test for the occurrence of an arrest is whether a reasonable person in the defendant's position would have considered himself or herself "in custody" (see ¶ 14). Turning to the facts of this case the court concluded that a reasonable person in the defendant's position would not have believed that he or she was "in custody." "First, we do not agree with the State that the fact that Ben-Ami told Marten-Hoye that she was under arrest necessarily establishes an arrest. Ben-Ami did not unequivocally tell Marten-Hoye that she was under arrest. Significantly, immediately after Ben-Ami told Marten-Hoye that she was under arrest, she also told her that she would be issued a citation and then would be free to go. Although the statements by Ben-Ami are contradictory, we conclude that the assurance by Ben-Ami that Marten-Hoye would be issued a citation and released would lead a reasonable person to believe he or she was not in custody, notwithstanding the early statement that he or she was `under arrest'" (¶ 28).

    "Next, we do not agree that police use of handcuffs transformed the interaction here into an arrest. In this case, Marten-Hoye's being placed in handcuffs is associated with the fact that she was being loud and uttering profanities rather than indicating that she was being placed in police custody. Additionally, the entire interaction between Ben-Ami and Marten-Hoye was in public and Marten-Hoye was never transported to any other location [nor was she placed in a squad car]. Although Ben-Ami's statements conflict, we are persuaded that in their totality they would not lead a reasonable person to believe he or she was `in custody.' Accordingly, the search of Marten-Hoye is not justified as a search incident to an arrest" (¶ 29).

    Withdrawal of Guilty Plea Before Sentencing - "Fair and Just Reason" Standard - Assertion That Counsel Coerced Plea

    State v. Rhodes, 2008 WI App 32 (filed 18 Dec. 2007) (ordered published 20 Feb. 2008)

    Before sentencing, the defendant moved to withdraw his guilty plea, claiming that he was coerced into pleading guilty by his former counsel. The circuit court denied the motion. In a decision authored by Judge Wedemeyer, the court of appeals affirmed the circuit court's decision.

    "A defendant seeking to withdraw a plea before sentencing must present a fair and just reason which the trial court finds credible, and rebut evidence offered by the State that the State will be substantially prejudiced by the plea withdrawal. State v. Jenkins, 2007 WI 96, ¶ 43, ---Wis. 2d ---, 736 N.W.2d 24. A decision to grant or deny a motion to withdraw is within the discretion of the trial court. Id., ¶ 30. `Fair and just' means some other adequate reason besides the defendant simply changing his mind. See State v. Canedy, 161 Wis. 2d 565, 583, 469 N.W.2d 163 (1991)" (¶ 7).

    The record in this case reflects that trial counsel conceded that he was "forceful" in his belief that the defendant should take the plea offer. Counsel explained that after the trial court denied his motion to suppress the defendant's detailed confession, there was no chance of acquittal at trial, and the defendant had a better chance of getting a shorter sentence by accepting the plea offer. The record also demonstrates that trial counsel advised the defendant that it was his decision whether to proceed to trial or plead guilty. The defendant admitted this fact (see ¶ 9).

    The appellate court rejected the defendant's claim that he was coerced into pleading guilty by his lawyer. "Defense counsel's professional belief was that if [the defendant] went to trial he would be convicted. This was based on the ruling that the detailed confession would be admitted and upon defense counsel's investigation of potential alibi witnesses that simply did not pan out. Under such circumstances, a defense counsel would be remiss to advise a defendant to go to trial, knowing that a conviction was highly likely. Moreover, it was undisputed fact that after the `forceful advice,' defense counsel told [the defendant] that whether to go to trial was ultimately his decision. [The defendant] concedes this fact, but still elected to plead guilty" (¶ 11).

    The court rejected the defendant's claim that the plea was entered hastily. "[The defendant] argues that because it was done on the date set for trial, this suggests a rushed plea. We are not convinced. There was no evidence that [the defendant] was rushed through the plea colloquy. Rather, the record indicates the opposite - that there was a period of discussion prior to [his] agreeing to plead guilty" (¶ 12).

    The final factor the defendant presented in support of his motion to withdraw the plea was a claim of innocence. Said the court, "[a] claim of innocence alone is insufficient to support a motion to withdraw a guilty plea. The claim must be backed up with credible evidence to support it. See State v. Kivioja, 225 Wis. 2d 271, 289, 592 N.W.2d 220 (1999). The trial court did not find this factor to be persuasive, thus either explicitly or implicitly concluding that [the defendant's] claim was disingenuous. In light of the detail provided within [the defendant's] confession, together with the trial court's credibility findings, we are not convinced that [the defendant's] innocence claim, standing alone, renders the trial court's decision erroneous. Accordingly, we must conclude that the trial court appropriately exercised its discretion in denying the motion seeking to withdraw the guilty plea" (¶ 13).

    Identification - Showups

    State v. Nawrocki, 2008 WI App 23 (filed 31 Jan. 2008) (ordered published 20 Feb. 2008)

    The defendant was convicted of strong-arm robbery. The victim and a witness identified the defendant at a showup conducted at the scene of the defendant's arrest for an unrelated offense. The circuit court denied the defendant's motion to suppress the identifications on the grounds that the showup was unnecessary and violated his due process rights.

    The court of appeals, in an opinion written by Judge Higginbotham, reversed and remanded the case for further proceedings. In State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, the supreme court criticized showup identification procedures and placed two limitations on their use. A court must find whether "(1) the showup procedure was necessary under the totality of the circumstances, and, if necessary, (2) that care was taken to minimize the suggestiveness of the procedure" (¶ 22). "A showup is `necessary,' in the words of Dubose, only when `police lack[] probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array'" (¶ 23). "Stated differently, a showup is necessary when officers lack other constitutional means to obtain a suspect's identification. However, where probable cause exists, whether it is related to the offense under investigation or some other offense, officers have the constitutional means to detain the suspect and secure an identification using a procedure that is less conducive to misidentification. We therefore conclude that a showup is unnecessary and thus inadmissible under Dubose when probable cause exists to justify an arrest, regardless whether it exists on the particular offense under investigation" (¶ 26).

    Although the out-of-court identifications were inadmissible, the next issue was whether the victim and witness could nonetheless testify to their in-court identifications of the defendant as the robber. "The party seeking admission of the in-court identification carries the burden of demonstrating by clear and convincing evidence that the in-court identification was not tainted by the inadmissible out-of-court identification" (¶ 30). The record demonstrated that the witness's in-court identification was tainted by the showup procedure (see ¶ 41). The court remanded the case, however, for a determination of whether the victim's in-court identification was also tainted, or whether it was independent of the showup based on various factors set forth in the case law (see ¶ 38). This finding would control whether the victim's tainted identification was, or was not, harmless error.

    Confessions - Choice of Law

    State v. Townsend, 2008 WI App 20 (filed 24 Jan. 2008) (ordered published 20 Feb. 2008)

    The defendant was convicted of being a felon in possession of a firearm. The court of appeals, in an opinion written by Judge Higginbotham, affirmed the conviction. The defendant's prime contention was that because Milwaukee police officers interrogated him in a Minnesota jail, Minnesota law should govern the use of his confession at trial. Under Minnesota law, an unrecorded interrogation is generally suppressed as evidence, but under Wisconsin law suppression is not required, although electronic recording is "encouraged."

    Applying precedent on choice-of-law analysis, the appellate court "conclude[d] that Wisconsin law shall be applied to evidence gathered in a foreign state by a Wisconsin official charged with the duty to gather evidence for use in a Wisconsin criminal prosecution" (¶ 15). "The statement taken by [the Milwaukee detective] in Minnesota was used in the Wisconsin trial. [I]t is unreasonable to require and expect [Wisconsin police] to be aware of and implement Minnesota's evidence gathering rules" (¶ 16).

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    Open Records Law

    Law Enforcement Records - Specificity of Reasons for Denying Access to Records

    Portage Daily Register v. Columbia County Sheriff's Dep't, 2008 WI App 30 (filed 31 Jan. 2008) (ordered published 20 Feb. 2008)

    The Portage Daily Register filed a mandamus action to compel the Columbia County Sheriff's Department (the department) to provide it with a copy of an investigative report pursuant to Wis. Stat. section 19.37. The department denied the request on the ground that the report, a copy of which the department retained, had been forwarded to the district attorney's office and was part of an open investigation. The circuit court determined that this reason for denying access to the report was sufficiently specific and that the department properly withheld the report under the public records balancing test. In a decision authored by Judge Bridge, the court of appeals reversed the circuit court.

    The department argued that it was appropriate for it to withhold the document under State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991), in which the supreme court held that common law provides an exception to the public records law as it relates to district attorneys' files. The department contended that because it transmitted the report to the district attorney and the report related to an ongoing investigation, it lacked the authority to disclose the report in light of the ruling in Foust. The department argued that it was not responsible for deciding whether the record was a prosecutorial record under Foust, because the district attorney's office was the entity responsible for making that determination (see ¶ 16).

    The court of appeals concluded that the department's reliance on Foust was misplaced. Said the appellate court, "[in Foust, the supreme court held that a common law categorical exception exists for records in the custody of a district attorney's office; it did not hold that a similar exception exists for records in the custody of a law enforcement agency. The Sheriff's Department is itself an `authority' which had custody of the requested record within the meaning of Wis. Stat. § 19.35(4)(a), and as such, it was legally obligated to provide public access to records in its possession, consistent with the public records law. This obligation cannot be avoided by invoking a common law exception that is exclusive to the records of another custodian. The fact that the same record was in the custody of both the law enforcement agency and the district attorney does not change the outcome. As the supreme court observed in a related context, `[i]t is the nature of the documents and not their location which determines their status under [the public records law]. To conclude otherwise would elevate form over substance'" (¶¶ 17-18) (citations omitted).

    The department argued that allowing a requesting party to obtain from a law enforcement agency records that the agency has also forwarded to a district attorney's office would have "dangerous potential" in that requesting parties would be permitted to avoid the ruling in Foust. The court held, however, that allowing the department to withhold a record, regardless of its content, simply because a copy of that record has been forwarded to a district attorney's office, "would not serve the purposes of the public records law. Moreover, the Sheriff's Department retains the ability to determine whether the release of a particular record is or is not warranted in a given situation. Although a police report is generally categorically exempt from disclosure under Foust if it resides in a prosecutor's file, the Sheriff's Department has an independent responsibility to determine whether a police report should be withheld. Whereas a prosecutor may generally rely on the categorical exemption, the Sheriff's Department must make that determination on a case-by-case basis" (¶ 19). For these reasons the court of appeals concluded that the department was not entitled to invoke the categorical exception for prosecutorial records that was found to exist in Foust in the context of denying access to a police report.

    The court further concluded that the department's stated reason for denying access to the record - that it was part of an open investigation in the district attorney's office - was not made with the kind of specificity required by the open records statute. The stated reason was but an assertion of fact - not a public policy reason for denying access. The court found the stated reason to be insufficient when compared to others that have been found sufficient by the courts in the past, e.g., the protection of crime detection strategy, prejudice to an ongoing investigation, and informant confidentiality (see ¶ 26).

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    Probate

    Contested Will Proceedings - Award of Attorney Fees from Estate

    Bloom v. Grawoig, 2008 WI App 28 (filed 31 Jan. 2008) (ordered published 20 Feb. 2008)

    Wisconsin courts may award attorney fees and costs to prevailing parties in contested will proceedings. Pursuant to Wis. Stat. section 879.37, "[r]easonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters" (emphasis added).

    The question of law in this case was whether section 879.37 limits a prevailing party to recovery from the estate only, or whether the prevailing party may seek to recover costs and fees from portions of the estate that are distributed to particular heirs (see ¶ 8). The circuit court determined that it had neither statutory authority under section 879.37 nor equitable authority to award the fees out of an heir's distributive share and instead was required to award the fees out of the estate as a whole (see ¶ 6).

    In a decision authored by Judge Bridge, the court of appeals affirmed the circuit court. Said the court, "[i]n construing a statute, we look first to the language of the statute itself. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. When the statutory language is clear and unambiguous, we do not look beyond the plain words. Id. If the meaning of a statute is plain, our inquiry ordinarily ends there. Id. We conclude that the plain meaning of `out of the estate' references the estate as a whole, rather than a subset of the estate" (¶ 10).

    The appellate court noted that "[a]lthough we reach this outcome by the plain language of Wis. Stat. § 879.37, we recognize, as did the circuit court, that equity might well lead to the opposite conclusion. It may be that the legislature will choose to address the issue in the future. For now, however, the plain language of § 879.37 dictates the outcome" (¶ 17).

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    Torts

    Medical Malpractice - Screening Duty

    Preston v. Meriter Hosp. Inc., 2008 WI App 25 (filed 24 Jan. 2008) (ordered published 20 Feb. 2008)

    Preston, who was 24 weeks pregnant, was admitted to a hospital and taken to its birthing center, where she delivered a son. He weighed less than two pounds and died several hours later. The child received only nursing care and was not treated or resuscitated. Preston sued the hospital for malpractice. The circuit court dismissed all her claims, including one that asserted that the Emergency Medical Treatment and Labor Act (EMTALA) imposed a screening duty that the hospital breached. The court of appeals affirmed. In Preston v. Meriter Hosp. Inc., 2005 WI 122, the supreme court reversed the dismissal of the EMTALA claim "based on its determination that the phrase `comes to the emergency department' applies to the hospital's birthing center as well as to its emergency room" (¶ 6). On remand the circuit court again dismissed the EMTALA claim on the ground that "because Preston was admitted as an inpatient when she was taken to the hospital birthing center, Bridon [the deceased child] necessarily became an inpatient at the same time and remained so until his subsequent death" (¶ 10).

    The court of appeals, in an opinion written by Judge Bridge, affirmed. First, the circuit court properly reached this issue because the supreme court expressly directed that the inpatient issue be assessed on remand (see ¶ 12). Second, EMTALA is itself "silent" on whether its screening requirement applies to inpatients, and the court thus turned to "extrinsic sources for guidance in determining" the Act's legislative intent (¶ 20). The Act, which is designed to prevent "patient dumping," has triggered conflicting case law generated by courts wrestling with its application to inpatients as opposed to persons admitted into emergency rooms. A 2003 Department of Health and Human Services (DHHS) "clarifying regulation" deems a hospital to have met its "special responsibilities" whenever it has "found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition" (¶ 32).

    "We conclude that a rule curtailing the reach of EMTALA once an individual becomes an inpatient is consistent with the well-accepted principle that EMTALA is not a federal malpractice statute and is not designed to provide a federal remedy for general malpractice. We also conclude that the DHHS clarifying regulation is controlling as to whether the EMTALA stabilization requirement applies to inpatients. In addition, we conclude that there is no principled basis upon which to distinguish between the screening requirement and the stabilization requirement in the context of a person's status as an inpatient. Once the patient has been admitted, the purpose that underlies the EMTALA screening requirement has already been met, and a patient has recourse for substandard care under state law. Substandard care regarding screening would be subject to a medical malpractice claim just as any substandard care would be. We therefore conclude that the EMTALA screening requirement ceases to apply once an individual has been admitted to a hospital for inpatient care" (¶ 54). On the facts, the child was an inpatient for purposes of the screening requirement because his mother had been admitted to the hospital, "and because the screening requirement does not apply to inpatients, the [h]ospital is entitled to judgment as a matter of law" (¶ 57).

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