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    Court of Appeal 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.


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    Vol. 81, No. 5, May 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

    Criminal Law

    Stalking - Elements of the Crime - Prior Conviction of a Violent Crime

    State v. Warbelton, 2008 WI App 42 (filed 20 Feb. 2008) (ordered published 19 March 2008)

    This prosecution was for the crime of stalking. See Wis. Stat. § 940.32. The base offense under this statute is a Class I felony, but if certain factors are present, the crime is elevated to a Class H felony. One of those factors is a previous conviction for a "violent crime." See Wis. Stat. § 940.32 (2m)(a). The defendant was charged at the H felony level because the state alleged that he had a record of having committed a violent crime. He was convicted of the Class H felony.

    On appeal the defendant argued that his conviction should be reversed because evidence of his prior conviction was improperly admitted and because the jury should not have been instructed to decide whether he had such a prior conviction. According to the defendant, the prior conviction is not an element of the substantive crime but instead is akin to the habitual criminality penalty enhancer codified at Wis. Stat. section 939.62. Habitual criminality is reserved for determination at sentencing and is not a jury issue.

    In a decision authored by Judge Anderson, the court of appeals affirmed. It held that a "previous conviction for a violent crime" is an element of the Class H felony stalking offense set forth in section 940.32(2m)(a) (¶ 17). "We conclude that the legislature meant subsec. (2m)(a) to convey that a `previous conviction for a violent crime' is a substantive element of the Class H felony stalking offense, not a penalty enhancer" (¶ 19). The appellate court further concluded that the trial judge did not commit error by admitting evidence of the parties' stipulation that the defendant had a previous conviction for a violent crime and by instructing the jury to decide whether the defendant had a previous conviction for a violent crime (see ¶ 34).

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    Criminal Procedure

    Search and Seizure - Search of Vehicle Incident to Arrest

    State v. Littlejohn, 2008 WI App 45 (filed 10 Jan. 2008) (ordered published 19 March 2008)

    Police officers on patrol observed Littlejohn (the defendant) driving a car. Because they noted some suspicious behavior on his part, the officers followed the defendant until he parked in a small parking lot, where they pulled in behind him. The defendant exited and locked the vehicle. The officers arrested him after determining that his driving privilege had been revoked.

    After securing the defendant in the rear of the patrol car, the officers searched the passenger compartment of his car. They discovered a small baggie containing what appeared to be marijuana and also found a white powdery substance that appeared to be cocaine. The officers then searched the car's trunk and found four gallon-sized baggies containing what appeared to be additional marijuana, a plastic bag containing what appeared to be more cocaine, and a digital scale. In the subsequent drug prosecution the defendant moved to suppress the evidence found in his car. The circuit court granted the motion after concluding that the vehicle and trunk searches were illegal. In a decision authored by Judge Lundsten, the court of appeals reversed.

    The only dispute on appeal was whether the police officers conducted a lawful search of the passenger compartment of the defendant's car. The defendant argued that the search was not a lawful search incident to arrest because the vehicle was not within his "immediate control" at the time of the search. The defendant did not argue that police improperly stopped or arrested him nor did he dispute the state's contention that, if the search of the passenger compartment were upheld, the evidence resulting from that search justified the subsequent search of the vehicle's trunk (see ¶ 5).

    The appellate court concluded the passenger compartment search was a valid search incident to arrest under New York v. Belton, 453 U.S. 454 (1981), and State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986). In Belton the U.S. Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." 453 U.S. at 460. In Fry the Wisconsin Supreme Court applied the Belton rule to uphold a search that was factually similar to the one conducted in the present case. Fry was in a car that was stopped by police officers. He exited the vehicle after the stop and walked over to the squad car, and the officers arrested him as he was standing between his vehicle and the squad car. Fry was handcuffed, placed in a squad car, and guarded while police searched his vehicle, including a locked glove compartment. The search revealed a weapon. Said the Fry court, "A police officer may assume under Belton that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle." 131 Wis. 2d at 174-75.

    Because of the factual similarities between the present case and Fry, the appellate court upheld the search of the interior of the defendant's vehicle. Even though the defendant's vehicle was locked at the time of the search, the court could "perceive no reason under Fry's rationale to distinguish between a locked glove compartment [the situation in Fry] and a locked passenger compartment [the situation in the present case]" (¶ 15).

    Compelled Statement - Expert Bases - Kastigar Hearing - Chapter 980

    State v. Harrell, 2008 WI App 37 (filed 31 Jan. 2008) (ordered published 19 March 2008)

    A jury found that Harrell was a sexually violent person, and the court ordered him committed pursuant to Wis. Stat. chapter 980. The state relied on the expert opinion testimony of Dr. Jurek, who diagnosed Harrell as suffering from an array of mental disorders that made him sexually violent. Jurek relied in part on a written statement Harrell gave to his parole agent in 2001. The statement recounted a sexual encounter with a minor.

    The court of appeals, in an opinion written by Judge Vergeront, reversed. Both sides agreed that the 2001 written statement was testimonial, compelled, and incriminating for purposes of the Fifth Amendment privilege against self-incrimination. Although the note itself was not admitted into evidence, Jurek had relied on it in diagnosing Harrell. After disposing of the state's waiver argument, the court addressed whether Jurek's use of the statement contravened Kastigar v. United States, 406 U.S. 44 (1972). In Kastigar, the Supreme Court held that when the state has compelled a statement from a person in violation of the Fifth Amendment, the state bears the burden of proving that its other evidence is independent of the tainted source.

    The court of appeals flatly rejected the argument that Jurek's reliance was proper under section 907.03 and case law recognizing that expert opinions may rest on inadmissible evidence. Such authority did not affect Fifth Amendment violations. "Applying Kastigar, we conclude that not only must Harrell's written statement be excluded, but also Dr. Jurek's opinions and any testimony presented by the State about the incident, unless the State can prove that this testimony is derived from a source wholly independent from Harrell's written statement" (¶ 29). The court of appeals recognized that this application of Kastigar may have "significant ramifications" on chapter 980 cases generally, but said that the supreme court would have to make any "modifications" in the law (¶ 34). On the record before the court of appeals, the error was not harmless.

    Compelled Statement - Expert Bases - Kastigar Hearing - Chapter 980

    State v. Mark, 2008 WI App 44 (filed 31 Jan. 2008) (ordered published 19 March 2008)

    This opinion is a companion to that in State v. Harrell (digested above). In this case Mark, also a respondent in a chapter 980 commitment proceeding, made written and oral statements that were compelled for Fifth Amendment purposes. Here, too, experts relied on the compelled statements in arriving at their opinions, in contravention of the state's Kastigar burden. And here, too, the court of appeals held the error was not harmless.

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    Municipal Law

    Municipal Power to Temporarily Prohibit Land Division in Whole Municipality - Wis. Stat. Section 236.45

    Wisconsin Realtors Ass'n v. Town of West Point, 2008 WI App 40 (filed 28 Feb. 2008) (ordered published 19 March 2008)

    In September 2005, the town of West Point adopted an ordinance establishing, with limited exceptions, a townwide "temporary stay or moratorium on the acceptance, review, and approval of any applications for a land division or subdivision." The town enacted the ordinance because it was engaged in developing a "comprehensive plan" under Wis. Stat. section 66.1001, Wisconsin's "smart growth" statute. The introductory language to the ordinance declared that the ordinance would "provide the Town with an opportunity to stabilize growth to continue the planning process, including completing the land use element, and such stay will eliminate development pressures within the Town which would otherwise increase during the planning process because landowners and developers might seek to rush their projects in order to gain approval before the planning process can be further completed by the Town" (¶ 2).

    While this temporary prohibition on land division was in effect, the Wisconsin Realtors Association and the Wisconsin Builders Association sued the town, seeking a declaration that the prohibition was illegal and an injunction to prevent the town from enforcing it. The associations moved for summary judgment. The circuit court adopted the town's view that the ordinance was authorized by Wis. Stat. section 236.45(2), and it granted summary judgment in favor of the town. The court of appeals certified the associations' appeal to the supreme court. However, the supreme court was evenly split on whether to affirm or reverse the circuit court (see 2007 WI 139) and remanded the case to the court of appeals. In a decision authored by Judge Lundsten, the court of appeals affirmed.

    Local governments have power to regulate land division under section 236.45. The question presented on this appeal was whether this statute grants a town the authority to temporarily prohibit land division in the entire town while it develops a comprehensive plan under section 66.1001. The appellate court concluded that a town has the authority under section 236.45(2) to impose a temporary townwide prohibition on land division while developing a comprehensive plan. "Because § 236.45(2) authorizes town ordinances prohibiting the division of land when the prohibition carries out purposes specified in § 236.45(1), and comprehensive plans under § 66.1001 promote purposes listed in § 236.45(1), it follows that a temporary town-wide prohibition on land division that advances the interests of a comprehensive plan, by prohibiting a development rush just prior to adoption of the plan, is authorized by § 236.45(2)" (¶ 8).

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    Real Property

    Unjust Enrichment - Use Value

    Ludyjan v. Continental Cas. Co., 2008 WI App 41 (filed 13 Feb. 2008) (ordered published 19 March 2008)

    Two individuals sued their former landlords for unjust enrichment. While renting the landlords' property, the tenants had constructed a pole barn and a "house," which, they claimed, added value to the property. The circuit court rejected the claim.

    The court of appeals, in an opinion written by Chief Judge Brown, affirmed. First, the landlords acquired no benefit because the two buildings were of no "use value" to them (see ¶ 1). "This is not to say that a defendant's failure to make use of property will always defeat unjust enrichment. Whether it does depends on the circumstances under which the property is conferred…. For example, a defendant who is unjustly enriched through consciously tortious conduct must pay the value of the property obtained … In contrast, where there is no tortious conduct and a benefit is conferred upon a defendant who is no more at fault than the plaintiff, recovery is limited by the benefit's `value in advancing the purposes of the recipient' with an exception not relevant here. The circuit court found no blameworthy conduct by the landlords, so it was proper to value the buildings according to their `use value' to them: nothing" (¶ 10).

    Second, the landlords did not accept or retain any benefit. "The tenants say that the landlords accepted the buildings by agreeing that they could be constructed, but this totally ignores the fact that this agreement was conditioned on the tenants taking the buildings with them when they left. Thus, though the landlords accepted the buildings' temporary existence, they never accepted the buildings as permanent additions to their land. We suppose one could say that the landlords `retained' the buildings once the tenants left, at least for a while, but they certainly did not do so under circumstances that made it unjust for them not to pay, as the third element of unjust enrichment requires. After all, the tenants had essentially dumped their unwanted buildings on the landlords' land. The landlords were not required to destroy them, or move them at their own expense, to signify that they did not want them" (¶ 11). Finally, the tenants "left their buildings on the land not because of, but in violation of, their agreement with the landlords" (¶ 12). Thus, they "voluntarily abandoned the buildings" in the absence of a request, coercion, or mistake (¶ 1).

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    Torts

    Cheerleading - "Contact Sports" - Immunity

    Noffke v. Bakke, 2008 WI App 38 (filed 14 Feb. 2008) (ordered published 19 March 2008)

    Noffke, a high school cheerleader, suffered a severe head injury while practicing a routine at school. She sued Bakke, another cheerleader whose duty it was to spot her, and the school district. The circuit court dismissed Noffke's claims against both Bakke and the school district.

    The court of appeals, in an opinion authored by Judge Higginbotham, affirmed in part and reversed in part. The court reversed the dismissal of the claim against Bakke. The court relied on Wis. Stat. section 895.525(4m), which governs liability for coparticipants of "contact team sports." The question before the court was whether "cheerleading is an activity that involves `physical contact between persons in a sport involving amateur teams'" (¶ 14). The statute was created for purposes of "reversing" case law that applied ordinary negligence standards to "contact sports" such as soccer. "We acknowledge the obvious. In many ways the risks and the athleticism involved in cheerleading are comparable to those in contact sports. Nonetheless, cheerleading does not fit the commonly accepted meaning of `contact sport.' Specifically, it does not involve physical contact between opponents" (¶ 17).

    The court of appeals upheld the ruling that governmental immunity protected the school district. The only applicable exception was that for breaching a "ministerial duty imposed by law" (¶ 23). The court closely examined "four rules and one provision" of a controlling cheerleading manual, rejecting each in turn. "Thus, as we see, the Rules Book plainly does not determine the `time, mode and occasion' for complying with the rule or impose a duty that `is absolute, certain and imperative' as to leave no room for discretion by a cheerleading coach. In short, Noffke has not shown that the Spirit Rules Book creates an absolute, certain or imperative duty that fell within the ministerial duty exception to governmental immunity" (¶ 29).

    Forest Fire - Double Damages

    Heritage Farms Inc. v. Markel Ins. Co., 2008 WI App 46 (filed 28 Feb. 2008) (ordered published 19 March 2008)

    An individual started a fire on a campground's property. The fire spread and damaged surrounding property. The aggrieved property owners brought a variety of claims, including one for double damages and attorney fees under Wis. Stat. section 26.21(1). The circuit court dismissed this claim on the ground that section 26.21(1) applies only to railroad corporations. Following a trial on the other claims, a jury awarded compensatory damages of nearly $600,000.

    The court of appeals, in an opinion written by Judge Vergeront, affirmed. The court held that section 26.21(1) applies only in situations in which the tortfeasor is a railroad corporation; put differently, and with aid of a double negative, the statute "plainly does not apply to defendants who are not railroad corporations" (¶ 15). "Turning to the language of Wis. Stat. § 26.21(1), we see that it does not specify against what entity or persons the property owners may recover. This is the crux of Heritage Farms' argument that the plain language of this section does not limit its applicability to railroad corporations or to any other class of tortfeasors. However, § 26.21(1) begins with the phrase `[i]n addition to the penalties provided in s. 26.20,' and this phrase therefore must be part of our analysis of the statutory language. Wis. Stat. § 26.20 is entitled `Fire protection devices' and it imposes various fire prevention measures on locomotives and the operations of railroads, § 26.20(2)-(8); § 26.20(10) provides for an appeal to the commissioner of railroads if there is a dispute over how to comply with certain of the requirements" (¶ 6). "Thus, when Wis. Stat. § 26.21(1) is read together with Wis. Stat. § 26.20, as the plain language of § 26.21(1) requires, it provides for civil liability in addition to the forfeitures, or penalties, provided for in § 26.20(9)" (¶ 7).

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    Worker's Compensation

    LIRC Liability Determination on Basis Not Raised Before Administrative Law Judge - Denial of Due Process

    Waste Mgmt. Inc. v. Labor & Indus. Review Comm'n, 2008 WI App 50 (filed 26 Feb. 2008) (ordered published 19 March 2008)

    In March 2003, Timothy Bowe applied for worker's compensation benefits for a severe back injury. The case was ultimately expanded to include three employers, Chippewa Falls Rendering, Countryside Hides Inc., and Waste Management, along with their insurers. Bowe worked at Chippewa Falls Rendering beginning in March 1999. In April 2001, Countryside Hides purchased Chippewa Falls Rendering. Bowe continued to work for Countryside Hides until October 2001. At that time he quit Countryside Hides and began working at Waste Management, where he remained until June 2002.

    The Department of Workforce Development held a hearing on Bowe's claim in November 2004. At the beginning of the hearing, the administrative law judge (ALJ) clarified that the issues in dispute were whether Bowe suffered an injury by accident on or about Dec. 5, 2000 when he was employed by Chippewa Falls Rendering; whether he suffered a compensable injury by accident on Sept. 14, 2001 when he was employed at Countryside Hides; and whether he suffered an injury by accident on June 3, 2002 while he was employed at Waste Management. The ALJ noted that the issue of an occupational disease had also been raised. Specifically Bowe alleged in the alternative that he has suffered from an occupational back disease, with the date of injury of Oct. 20, 2001, and that Countryside Hides and its carrier would be on the risk for that occupational back disease. Bowe and Countryside Hides agreed with this statement of the issues by the ALJ.

    The ALJ rendered a decision in May 2006. He found that cumulative trauma from Bowe's work at Chippewa Falls Rendering and Countryside Hides caused an occupational back disease as of Bowe's last day of work at Countryside Hides, and that Countryside Hides and its insurer were solely responsible for Bowe's damages. The ALJ found Bowe's subsequent work at Waste Management was "much less rigorous" than his work for Countryside Hides, and concluded that it did not permanently aggravate Bowe's back condition.

    Countryside Hides petitioned for review of the ALJ's decision, arguing there was insufficient evidence to support the ALJ's finding of an occupational disease. The Labor and Industry Review Commission (LIRC) reversed the ALJ's decision in part, finding Bowe's occupational back disease did not begin until Bowe was working for Waste Management. LIRC held that Waste Management was solely responsible for Bowe's damages.

    Waste Management appealed LIRC's decision to the circuit court. It argued, among other things, that LIRC violated Waste Management's due process rights by awarding damages on an occupational disease theory. The circuit court affirmed LIRC's decision. In a decision authored by Judge Peterson, the court of appeals reversed.

    Pursuant to Wis. Stat. section 102.18(1)(a), all parties to a worker's compensation claim are entitled to a "full, fair, public hearing." This means a party is entitled to: "(1) [t]he right to seasonably know the charges or claims proferred; (2) the right to meet such charges or claims by competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto" (¶ 9) (citation omitted).

    The appellate court concluded that Waste Management was not afforded two of the three components of a fair hearing. All the parties at the hearing stipulated that the only claim to be litigated against Waste Management was a claim for accidental injury, which is distinctly different from a claim alleging an occupational disease. "Because the parties explicitly stated the only claim against Waste Management was for accidental injury, Waste Management could not `know the charges or claims' against it included an occupational disease claim. It also never had an opportunity to be heard on `the probative force of the evidence adduced by both sides' as applied to the occupational disease claim, or on the law applicable to the occupational disease claim, either during the hearing or in its brief to the Commission. Under those circumstances, Waste Management was denied both due process and a `fair hearing' under Wis. Stat. § 102.18(1)(a)" (¶ 11) (citations omitted).

    LIRC argued that its decision was based on its duty to protect the rights of injured workers "irrespective of the presentation of the case by attorneys" (¶ 15). However, said the appellate court, "the Commission could have done so without running afoul of Waste Management's due process rights. Wis. Stat. § 102.18(3) allows the Commission to return a case to the ALJ and `direct the taking of additional evidence.' If the Commission concluded a decision on the occupational disease theory was necessary, remanding the case to the ALJ to hold a hearing on that theory would have been consistent with both its duty to protect workers and Waste Management's due process rights" (id.).

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