Wisconsin Lawyer
Vol. 82, No. 8, August 2009

• Appellate Procedure
• Civil Procedure
• Criminal Law
• Criminal Procedure
• Employment Law
• Evidence
• Motor Vehicle Law
• Taxation
• Torts

Appellate Procedure

Kenosha Prof’l Firefighters Local 414 v. City of Kenosha, 2009 WI 52 (filed 17 June 2009)

Kenosha Professional Firefighters Local 414 (the firefighters) petitioned the circuit court for a writ of mandamus compelling the city of Kenosha to disclose certain public records. The court entered a peremptory writ on April 27, 2006, compelling the city to disclose most of the records sought by the firefighters; it made no order with respect to the remaining records. Even though no order had been made with respect to some of the records, the firefighters applied for attorney fees, statutory damages, and costs. On Jan. 19, 2007, the circuit court denied the request. The firefighters brought a motion for reconsideration of the Jan. 19, 2007 order, but the circuit court denied that request as well in a decision issued on April 26, 2007.

The firefighters appealed to the court of appeals pursuant to Wis. Stat. section 808.03(1), which governs appeals as of right from final judgments or orders of the circuit court. In an unpublished decision the court of appeals dismissed the firefighters’ appeal with prejudice. It determined “(1) that the circuit court’s January 19, 2007, decision represented its final order denying the firefighters’ application for attorney fees, statutory damages, and costs; (2) that the firefighters failed to appeal timely from that final order; and (3) that the court of appeals therefore lacked jurisdiction to review the January 19, 2007, decision and the issues decided therein” (¶ 2). The court of appeals also held that under Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 N.W.2d 752 (1972), the firefighters had no right of appeal from the circuit court’s April 26, 2007, decision denying their motion for reconsideration (see id.).

In a majority decision authored by Chief Justice Abrahamson, the supreme court reversed the court of appeals. It concluded that the court of appeals erred in dismissing the firefighters’ appeal with prejudice (see ¶ 7). The supreme court had to determine whether either of the two circuit court decisions from which the firefighters appealed was a final judgment or order for purposes of Wis. Stat. section 808.03(1) (see ¶ 20). This statute defines a final judgment or final order from which appeal may be taken as a matter of right and provides in relevant part that “[a] final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties....” According to the court’s precedent, “[e]xplicit language dismissing or adjudging the matter in litigation is required in the circuit court’s decision to render that decision a final judgment or final order for purposes of appeal” (¶ 23). In this case no document explicitly dismissed or adjudged the entire matter in litigation as to one or more parties (see ¶ 30).

The supreme court concluded that “the circuit court’s January 19, 2007, and April 26, 2007, decisions from which the firefighters appealed are not final judgments or final orders for purposes of appeal under Wis. Stat. § 808.03(1). They do not dispose of the entire matter of attorney fees, statutory damages, and costs in litigation between the parties. Furthermore, because the circuit court has not entered a final, appealable judgment or order disposing of the firefighters’ underlying litigation against the City relating to the release of public records, the circuit court’s decisions relating to attorney fees, statutory damages, and costs should not be accorded the status of final judgments or final orders for purposes of appeal” (¶ 41).

Accordingly, the supreme court concluded that the court of appeals erred in dismissing the firefighters’ appeal with prejudice. “The appeal should have been dismissed without prejudice. The firefighters may appeal under Wis. Stat. § 808.03(1) when the circuit court enters final judgments or orders disposing of the firefighters’ underlying litigation against the City and the firefighters’ request for fees, damages, and costs” (¶ 42).

Justice Roggensack filed a concurring opinion that was joined by Justice Ziegler and Justice Gableman. “I write in concurrence because the lack of finality of the peremptory writ is the sole reason that this court should conclude that the January 19, 2007, decision denying statutory attorney fees is not a final order. Stated otherwise, because the firefighters moved for an award of attorney fees prior to the circuit court’s rendering a final decision on the merits, their motion for attorney fees was premature, not late” (¶ 44).

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Civil Procedure

PRN Assocs. v. Department of Admin., 2009 WI 53 (filed 17 June 2009)

In 2003, Prism, a developer, bid on a request for proposal (RFP) to renovate a building for the University of Wisconsin System. Initially it appeared that Prism would be awarded the contract, but in early 2004 the state withdrew its support and invited a second round of bidding. Prism submitted another bid, but the state awarded the project to another developer, which completed the project in 2006. Prism filed two actions, which were consolidated in this appeal. One was a request for judicial review of the Department of Administration’s (DOA’s) administrative decisions under Wis. Stat. chapter 227 and the other was a request for a declaratory judgment. Prism never sought an injunction to stop the bid review process or to halt construction. The circuit courts dismissed both actions, and the court of appeals affirmed.

A unanimous supreme court affirmed in an opinion written by Justice Bradley. The court held that the administrative review action was properly dismissed as moot. In its mootness analysis, the court focused on the requested relief (see ¶ 31). Prism was not entitled to monetary damages, which would “thwart” the state procurement process set forth in the statutes (see ¶ 36). Prism also contended that it should be awarded the contract, yet by the time it filed for judicial review the winning bidder had signed its contract and the project itself was long since completed (see ¶ 40). Moreover, Prism never sought an injunction to prevent the contract being awarded to the competing bidder. “If Prism believed that it was entitled to the contract, Prism was required to seek a temporary injunction to prevent the award of the contract to WEAS. In so doing, Prism would have preserved any entitlement it had to the contract” (¶ 43).

The declaratory judgment action also was properly dismissed, on the basis of sovereign immunity. “The declarations Prism seeks all relate to the DOA’s past actions, such as failing to award the contract to Prism, rescinding the first RFP, and issuing a second RFP. None relates to the State’s future conduct. In effect, Prism seeks a declaration that its rights were violated during the procurement procedure so it can pursue a damage remedy against the State.... We conclude that a declaratory action cannot be maintained because Prism is seeking money damages rather than anticipatory or preventative relief” (¶¶ 56-57). Nor was Prism’s action authorized by Wis. Stat. chapter 775. Prism acknowledged that it failed to satisfy the statutory requirements of chapter 775, which requires that the claim be submitted to the legislature, that it be denied, and that the claimant post bond with the clerk of courts (see ¶ 60).

Luckett v. Bodner, 2009 WI 68 (filed 7 July 2009)

In 2000 doctors performed a tubal ligation on Tywanda Luckett. Complications arose, necessitating more surgery that left her permanently brain damaged. She then moved to a long-term care facility, where she resided until her death in 2005. This medical malpractice case was filed in 2003. In response to a defense request for admissions filed in 2005, the plaintiffs responded that Luckett had been in a persistent vegetative state since her admission to the long-term care facility. Early in 2007 and on the eve of the final pretrial conference, the plaintiffs’ counsel notified the defense that he intended to withdraw this admission because medical records contradicted it. “In withdrawing these admissions, plaintiffs’ counsel acknowledged that the earlier admissions were his ‘mistake’ and the mistake was not discovered until counsel was ‘doing final trial preparation.’ All the records in question were in the defendants’ possession as well as the plaintiffs’” (¶ 22). The circuit court permitted withdrawal of the admissions even though it meant that the trial would be postponed because none of the parties were prepared to litigate the issue of the deceased’s pain and suffering from 2000 to 2005. The court of appeals affirmed in an unpublished, split decision.

The supreme court affirmed the court of appeals in an opinion written by Chief Justice Abrahamson. “The single issue presented for our review is whether the circuit court erroneously exercised its discretion in granting the plaintiffs’ motion to withdraw the admissions that the plaintiffs made in response to the defendants’ request” (¶ 2). “We conclude that the record supports the conclusion (A) that withdrawal of the admissions will subserve the presentation of the merits; and (B) that the defendants will not be prejudiced by withdrawal of the admissions in maintaining their defense on the merits” (¶ 37).

As to the first element, the deceased’s “pain and suffering” was a “key issue” at trial and therefore withdrawal of the admission assisted the “ascertainment of the truth” (¶ 41). Nor had the defense established sufficient prejudice to preclude the admission’s withdrawal. The need for additional discovery and the adjournment of the trial did not establish prejudice as a matter of law (see ¶ 48). Nor was prejudice shown just because the defense could no longer obtain an independent medical examination of Luckett. “The defendants had the opportunity to make an independent medical examination of Ms. Luckett before the admissions. They did not, even though their request for admissions, along with the accompanying interrogatories and request for production, demonstrate that the question whether Ms. Luckett was in a persistent vegetative state was not settled” (¶ 63). Nor did the inevitable fading of memories constitute sufficient prejudice (see ¶ 68). Finally, the “increased exposure” to the defense because of the pain and suffering claim was not a pertinent consideration (¶ 70). 

Justice Ziegler, joined by Justice Roggensack and Justice Gableman, concurred and wrote separately about the defense’s failure to show prejudice and to address issues that the trial judge would have to confront on remand. Justice Prosser dissented. He argued that the majority “undermined” Wis. Stat. section 804.11(2) and “rewrote” the law on abuse-of-discretion review (¶ 83).

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Criminal Law

State v. Baron, 2009 WI 58 (filed 23 June 2009)

The defendant, Christopher Baron, worked as an emergency medical technician for the city of Jefferson under the direction of Mark Fisher, who was the director of Jefferson’s Emergency Medical Services. According to the criminal complaint, on Aug. 10, 2006, Baron accessed Fisher’s email account by using Fisher’s password, which Baron had previously acquired. After accessing Fisher’s email account, Baron found some email messages allegedly showing that Fisher was having an extramarital affair. The messages were discussions between Fisher and a woman other than his spouse about their sexual activity and sexual preferences. Baron organized the messages into one message and then sent it to people in the Jefferson community. Even though Baron organized and sent the messages, he did so in a manner that made them appear to come from Mark Fisher’s email account. The day after Baron sent the messages, Fisher committed suicide (see ¶¶ 3-4).

The state charged Baron under Wis. Stat. section 943.201(2)(c), which prohibits the unauthorized use of another individual’s personal identifying information to harm the individual’s reputation. The circuit court concluded that this statute was unconstitutional as applied to Baron. In a published decision, the court of appeals reversed the circuit court. See 2008 WI App 90, 312 Wis. 2d 789, 754 N.W.2d 175. In a majority decision authored by Justice Ziegler, the supreme court affirmed the court of appeals.

The majority outlined its approach to the issue on appeal as follows: “In order to determine if Wis. Stat. § 943.201(2)(c), as applied to Baron, violates his First Amendment rights we must address two crucial questions: First, does § 943.201(2)(c) regulate speech or conduct alone? If neither speech nor expressive conduct is being regulated, we need not utilize a First Amendment analysis because the statute does not implicate the First Amendment. Second, if speech or expressive conduct is being regulated, is the statute’s regulation content based or content neutral? A content-based statute must survive strict scrutiny whereas a content-neutral statute must survive only intermediate scrutiny. In either event, it is the State’s burden to prove that § 943.201(2)(c) is constitutional” (¶ 14).

The supreme court concluded that, as charged and as applied to the facts of this case, section 
943.201(2)(c) regulates speech in addition to conduct. “The statute punishes a person for using another individual’s personal identifying information with the intent to harm that individual’s reputation. Under the facts of this case, the statute regulates conduct because it restricts the use of another’s identity and the distribution of reputation-harming materials, but speech is also being regulated because the content of the e-mails is critical in order to evidence Baron’s intent to use personal identifying information to harm Fisher’s reputation” (¶ 22).

The court further concluded that, as applied in this case, “Wis. Stat. § 943.201(2)(c) is content based because whether Baron’s conduct is prohibited depends entirely upon whether Baron’s speech, i.e., the content of the e-mails, was intended to be reputation-harming speech. … However, we do not decide today whether subsection (c) of Wis. Stat. § 943.201(2) must always be deemed content based under all circumstances as we do not address potential situations where something other than speech is used with the intent to harm another’s reputation” (¶ 38).

Lastly, the court agreed with the state that the statute survives strict scrutiny because the statute is narrowly tailored in that it applies only when the defendant intentionally uses an individual’s personal information to harm that individual’s reputation (see ¶ 48).

Justice Bradley and Justice Prosser authored separate concurring opinions. Chief Justice Abrahamson did not participate in this case.

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Criminal Procedure

State v. Grady, 2009 WI 47 (filed 11 June 2009)

The defendant, Grady, voluntarily went to the police station to answer some questions about a murder. Police officers repeatedly told him that he was not under arrest. Before the interview a detective administered Miranda warnings, which the defendant acknowledged he understood. For the next two-and-one-half hours he answered questions, denying any involvement in the death. It was undisputed that he was not in custody during this time. However, after those two-and-one-half hours, the defendant was arrested because another individual had just informed the police that the defendant was the person who committed the murder. The questioning continued but Miranda warnings were not readministered (although the detective did slide a Miranda warning card across the table to the defendant, who looked at it and then slid it back to the officer). The defendant thereafter began making inculpatory statements. In the prosecution that followed, the circuit court denied the defendant’s motion to suppress his inculpatory statements and, on the appeal from the defendant’s conviction, the court of appeals upheld the denial of the motion in an unpublished opinion. In a unanimous decision authored by Justice Gableman, the supreme court affirmed the court of appeals.

As described by the supreme court, “the issue we decide today is whether Grady’s Fifth Amendment rights were violated when Miranda warnings were given to him before the start of his noncustodial interrogation, but not administered again after his interrogation became custodial during the same interview two-and-one-half hours later” (¶ 2). The defendant contended that he was entitled to be readvised of his Miranda rights after his interrogation became custodial and, because those warnings were not readministered, his inculpatory statements should have been suppressed. He urged the adoption of a bright-line rule requiring the administration of warnings after a person is placed in official custody, and he asked the supreme court to declare ineffective any and all Miranda warnings given before a person is taken into custody (see ¶ 15).

The court declined to adopt such a bright-line rule; it reiterated that the proper approach for determining whether a suspect has effectively received Miranda warnings is a totality of the circumstances test (id.). The defendant did receive the requisite Miranda warnings at the beginning of his noncustodial interrogation, and in light of the facts of this case, the court did not believe the police were required to readminister those warnings once his interrogation became custodial two-and-one-half hours later (id.)

The court noted that the overwhelming consensus among numerous jurisdictions is that precustodial administration of Miranda warnings can be sufficient under certain circumstances. “Though still under a ‘totality of the circumstances’ rubric, courts have considered multiple factors in making this determination, including whether the same officer or officers conducted the questioning, whether the location changed, whether the subject matter of the questioning was consistent, whether a reminder of the Miranda rights was given before the custodial interrogation began, whether the suspect was mentally or emotionally impaired, whether more coercive tactics were used when the suspect was placed in custody, the suspect’s past experience with law enforcement, and how much time elapsed between the administration of the Miranda warnings and the custodial interrogation or confession” (¶ 20). In this case the supreme court declined to adopt any formulaic test. “The above factors are helpful, but not individually or collectively determinative or exhaustive. We prefer a flexible approach that examines all relevant facts in an effort to determine whether a suspect was sufficiently aware of his or her constitutional rights” (¶ 21).

Applying the totality of the circumstances standard, the court held that “[the defendant] was not entitled to a readministration of the Miranda warnings after he was arrested. The evidence shows that [the defendant] was read his Miranda warnings only two-and-one-half hours prior to the commencement of the custodial portion of his interrogation, there was no significant change in the nature of his interrogation after it became custodial, [the defendant] showed no signs of mental impairment, he was familiar with Miranda warnings from his past, and, though not readministered, [the defendant] was reminded of his Miranda rights after he was taken into custody. In sum, it is clear that the Miranda warnings as administered made [the defendant] sufficiently aware of his rights during questioning. [The defendant’s] motion to suppress his inculpatory statements was therefore appropriately denied by the circuit court” (¶ 3).

State ex rel. Robins v. Madden, 2009 WI 46 (filed 11 June 2009)

The circuit court convened a John Doe hearing at the request of a citizen complainant pursuant to Wis. Stat. section 968.26 (2007-08). The judge examined the complainant under oath and elicited from him a summary of the substance of each prospective witness’s testimony. After examining the complainant the judge determined that there was insufficient evidence to warrant a prosecution and accordingly dismissed the petition. The complainant then sought a writ of mandamus before the court of appeals to compel the John Doe judge to examine all the witnesses produced by the complainant. In an unpublished opinion, the court of appeals concluded that section 968.26 does not require the circuit judge to examine all of the witnesses produced by a John Doe complainant (see ¶ 1). The complainant then sought review before the supreme court. 

In a decision authored by Justice Gableman, the supreme court affirmed. After reaffirming the proposition that upon convening a John Doe investigation the judge must examine the complainant (see ¶ 15 n.8), the court concluded that “a judge is not required by § 968.26 to examine all the witnesses a complainant produces at a John Doe hearing, or to subpoena all the witnesses a complainant wishes to produce” (¶ 2). “Wis. Stat. § 968.26 when read as a whole preserves the circuit court’s discretion as to which witnesses it will examine in a John Doe proceeding” (¶ 27).

Said the court, “We see no danger in allowing a judge to determine prior to examination that the produced witness or witnesses are not competent to testify, do not have relevant testimony, have testimony that is cumulative or repetitive, or any other such factors making examination of the witness inappropriate or unnecessary. The John Doe judge may accomplish this in a variety of ways, including eliciting an offer of proof from the complainant as was essentially done here, receiving brief written witness summaries from the complainant, a combination of oral and written offers of proof, or some similar procedure reasonably calculated to allow the judge to exercise his or her discretion with regard to the testimony he or she will hear” (¶ 26).

Chief Justice Abrahamson did not participate in this case.

(Editors’ Note: The Wisconsin Legislature has recently amended Wis. Stat. section 968.26 to establish different procedures for initiating and conducting John Doe investigations. The procedures used depend on whether the district attorney requests the investigation or someone other than the district attorney makes the request. See 2009 Wisconsin Act 24 (applicable to requests for John Doe investigations made on and after June 27, 2009). )

State v. Johnson, 2009 WI 57 (filed 23 June 2009)

The defendant was charged with a felony drug offense committed on Aug. 12, 2004; after spending four days in custody, he was “free on bond” in this case until he was sentenced on Aug. 31, 2005 (that is, his cash bond was never revoked even though he got into trouble again and was held in custody on a new charge as described below). On April 19, 2005, he was arrested on another drug offense for which he remained in custody for 50 days before he was finally able to post bond; sentencing in this case also was scheduled for Aug. 31, 2005.

At the Aug. 31, 2005, sentencing hearing, both cases were before the same judge. The defendant received a sentence of one year of confinement and 18 months of extended supervision on the 2004 charge and a concurrent sentence of one year of confinement and one year of extended supervision on the 2005 charge. (The defendant had a third drug case before the court for sentencing as well. The sentence in this case was ordered to run consecutively to the other two sentences and was not an issue on this appeal.) The circuit court awarded four days of presentence credit in the 2004 case and 50 days of presentence credit in the 2005 case; it declined to apply the 50 days of credit from the 2005 case against the sentence in the 2004 case. In a published decision, the court of appeals affirmed the circuit court on the sentence credit issue. See State v. Johnson, 2008 WI App 34, 307 Wis. 2d 735, 746 N.W.2d 581. In a majority decision authored by Justice Prosser, the supreme court affirmed the court of appeals.

Wisconsin’s sentence credit statute mandates that a convicted offender’s sentence be credited with “all days spent in custody in connection with the course of conduct for which sentence was imposed.” Wis. Stat. § 973.155(1)(a). The question presented in this case was whether section 973.155 requires a court to apply the same sentence credit to each concurrent sentence given to an offender at the same sentencing hearing, regardless of whether the offender’s days spent in presentence custody were “in connection with the course of conduct for which [each] sentence was imposed.”

The supreme court concluded that “Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time. The fact that sentences are concurrent and are imposed at the same time does not alter the statutory mandate that credit toward service of a sentence be based on custody that is ‘in connection with’ the course of conduct giving rise to that sentence: i.e., custody factually connected with the course of conduct for which sentence was imposed” (¶ 3).

Applying the statute in this case, the court concluded that “there is no factual connection between the four days of presentence custody in 2004 and the course of conduct for which the sentence[] in the 2005 case [was] imposed, nor is there a factual connection between the 50 days of presentence custody in 2005 and the course of conduct for which the sentence in the … 2004 case was imposed. Thus, only four days of presentence custody must be credited to the sentence in the first 2004 case, and only 50 days of presentence custody must be credited to the sentence[] in the 2005 case. No other sentence credit is due for either case” (¶ 49) (citations omitted). (Earlier in the opinion the court observed that the 2004 case and the 2005 case “arose out of events that are separated by more than eight months, [the defendant’s] presentence custody came at two different times, and each period of custody is tied directly to only one case” (¶ 24).)

Justice Prosser authored his own special concurrence to his majority opinion. Justice Ziegler filed a concurring opinion that was joined by Justice Roggensack and Justice Gableman.

State v. Ferguson, 2009 WI 50 (filed 16 June 2009)

A jury convicted Ferguson of misdemeanor obstructing an officer following her arrest for an early morning disturbance. Ferguson challenged the validity of her arrest in her home and, more precisely, the jury instructions regarding whether the officers acted with “lawful authority,” an element of the crime. Since the officers lacked an arrest warrant, they could not arrest Ferguson in her home absent exigent circumstances. Ferguson argued that the trial judge’s failure to instruct the jury concerning exigent circumstances for the arrest invalidated her conviction. In an unpublished opinion, the court of appeals agreed and reversed.

The supreme court reversed the court of appeals in an opinion written by Justice Roggensack. It “conclude[d] that, even though a jury instruction on exigent circumstances could have been given under the evidence presented to the jury, because Ferguson struggled with the officers outside of her home when she was in lawful custody of the police, the instruction given accurately set out the law for the officers’ actions at that time. Therefore, if omitting an instruction on exigent circumstances was error, it was harmless error” (¶ 1). “The parties do not dispute that Ferguson was arrested inside of her home following a warrantless entry by police, and that the police had probable cause to arrest. Additionally, Ferguson does not dispute that the jury was properly instructed on all of the elements of obstruction other than ‘lawful authority’” (¶ 11).

The “central question,” however, was whether the jury was properly instructed on the element of lawful authority (¶ 14). Rejecting the state’s broad construction of this element, the court held that lawful authority “requires that police conduct be in compliance with both the federal and state Constitutions, in addition to the applicable statutes” (¶ 16). The majority opinion necessarily surveys state and federal law governing arrests in the home. The supreme court expressly overruled State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421, which had held that courts should distinguish between felonies and misdemeanors when assessing exigent, warrantless entries into homes (see ¶ 27). Instead, the court looked to the distinction between “jailable and nonjailable offenses” (¶ 30). Because Ferguson was charged with a jailable offense, “the jury could have been permitted to decide whether exigent circumstances justified the police’s warrantless entry into her home” (id.).

The circuit court’s failure to read an exigent circumstance instruction did not deprive Ferguson of a fair trial because the jury properly assessed her obstruction of the police officers outside her home as well as the lawfulness of the police conduct. The court placed great weight on New York v. Harris, 495 U.S. 14 (1990), which held that an invalid warrantless entry into a home did not infect later otherwise lawful police conduct outside the home, provided the police had probable cause. “The reasoning and conclusions of Harris are applicable to Ferguson’s struggles while the police were escorting her down the apartment stairs and placing her into the squad car. This is so because the police had probable cause to arrest Ferguson for disorderly conduct so that she was lawfully in their custody. Once Ferguson was removed from her house, the police were not required to re-arrest her for disorderly conduct in order to make her continued custody lawful. Therefore, her continuing struggles outside of her home occurred when the police were lawfully transporting her to the station house” (¶ 39). If any error occurred in the failure to instruct on exigent circumstances, such error was harmless.

Justice Bradley concurred, joined by Chief Justice Abrahamson and Justice Crooks. They disagreed with the majority’s “unwarranted” overruling of Mikkelson and its replacement with a standard (jailable/nonjailable) that is “unworkable” (¶ 48). Justice Crooks filed a separate concurring opinion, joined in part by the other two concurring justices, in which he objected to Mikkelson’s overruling and the “unworkable” rule that replaces it. 

State v. Ward, 2009 WI 60 (filed 30 June 2009)

Ward was convicted of first-degree reckless homicide in the death of her seven-week-old nephew. Before trial she unsuccessfully challenged the admissibility of incriminating statements she made to police officers during three different interviews. In an unpublished decision the court of appeals affirmed her conviction.

The supreme court affirmed in an opinion written by Justice Roggensack. Ward challenged both the voluntariness of her statements under the due process test and the validity of her Miranda waivers. Ward contended that police officers misrepresented (lied about) evidence, failed to inform her that a defense lawyer wanted to speak with her, and held her “incommunicado” for a period of time. The supreme court held that although police officers attempted to deceive Ward by distorting the incriminating evidence against her, Ward’s statements were nonetheless voluntary (see ¶¶ 27–28). Noteworthy here is the post-Miranda trend of courts allowing sundry lies, deceptions, and distortions by police during interrogation. Courts seem especially tolerant in situations in which, as here, the record shows that the defendant validly waived his or her Miranda rights.

Ward unsuccessfully challenged her Miranda waivers on several grounds. First, the court held that the police were not obligated to inform her that a criminal defense lawyer was “waiting outside” and wanted to speak with her. Federal and state case law has long held that the waiver is a personal decision by the suspect that focuses only on the Miranda rights; the police have no obligation to update the suspect about events outside the interrogation room (for example, “your family hired a lawyer who wants you to stop talking now”) (see ¶ 34). The majority declined to interpret the state constitution as requiring more protections than the federal constitution (see ¶ 55). Second, it was also of no moment that Ward asked several times about her husband’s whereabouts; it is irrelevant under Miranda that he was waiting outside the interrogation room (see ¶ 38).

Third, when advised of her Miranda rights, Ward commented on having a lawyer present but never “unequivocally ask[ed]” for a lawyer (¶ 43). In response, officers accurately explained Ward’s rights to her. Fourth, police officers held Ward “incommunicado” for a period of time but this did not affect the voluntariness of her statements the next morning or the validity of that Miranda waiver. The incommunicado detention occurred when police officers finished the second interview and told Ward that she could not call or speak with anyone that evening. About an hour-and-a-half later, officers told Ward she could call a lawyer if she wished, but Ward did not do so. The court held that “the only impermissible aspect of incommunicado questioning is that which prevents a suspect from speaking with those to whom he or she has a constitutional right to speak,” namely, her lawyer (¶ 50). In sum, Ward was “constitutionally impaired” for about 100 minutes (¶ 52) but made no statements during this time. The next morning she again spoke with officers, but it was Ward who initiated this interview and who again waived her Miranda rights.

Justice Crooks dissented, joined by Chief Justice Abrahamson and Justice Bradley. Abhorring the mistreatment of the child victim in this case, the dissent nevertheless vigorously criticized the deceptive and manipulative tactics used by police officers during their investigation. The dissent also argued that Wisconsin should follow the lead of more than a dozen states by requiring police officers to inform suspects when a lawyer is present in the building to represent them, regardless of whether the suspect has otherwise waived his or her rights. The dissent’s “great concern here is protecting the search for the truth that is supposed to be the point of a trial” (¶ 100).

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Employment Law

Baldwin-Woodville Area Sch. Dist. v. West C. duc. Ass’n, 2009 WI 51 (filed 17 June 2009)

A teacher filed a grievance for back pay under her collective bargaining agreement because she had been erroneously placed in the wrong pay grade. The school district denied the grievance. The matter went to binding arbitration, at which the arbitrator ruled in the teacher’s favor and rejected the district’s contention that her grievance was not timely filed. The circuit court denied the district’s motion to vacate the award, but in an unpublished opinion, the court of appeals reversed.

The supreme court reversed the court of appeals in a decision authored by Justice Bradley. The court stressed that its role was to determine only whether the arbitrator’s award had a “reasonable foundation” (¶ 22). The district’s appeal focused on the timeliness of the teacher’s grievance. In a record-intensive analysis, the court held that the arbitrator’s decision was reasonable. “[W]e cannot agree with the court of appeals that the contract unambiguously allowed for only one possible construction. The court of appeals never considered whether the arbitrator’s construction of the contract had a foundation in reason. Instead, while paying lip service to the deferential standard of review afforded to arbitration awards, the court of appeals substituted its own preferred construction of ‘the facts underlying the grievance.’ The court of appeals’ construction of the contract language may well be reasonable, but the court’s analysis does not comport with the limited standard of review for arbitration awards” (¶ 37).

Justice Prosser dissented. On this record, he found that the court had opened the door to permitting arbitration of “stale claims.” “Under the arbitrator’s and the majority’s reasoning, a grievant is effectively permitted to file an informal complaint, wait for the resolution, and if the grievant finds the resolution unfavorable, she can file a formal grievance and try again for the same relief. This is an unreasonable interpretation and a perverse misconstruction of the agreement” (¶ 51).

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Evidence

State v. McClaren, 2009 WI 69 (filed 9 July 2009)

McClaren was charged with attempted murder. When it became clear that McClaren would argue self defense and offer evidence of the victim’s past criminal record (so-called McMorris evidence) to support it, the trial court ordered both the state and the defense to disclose before trial such evidence they intended to offer. This would facilitate pretrial determinations of admissibility. The defense objected that the trial court lacked authority to compel such pretrial disclosure and further argued it was unconstitutional. The court of appeals reversed the trial judge on an interlocutory appeal.

The supreme court reversed the court of appeals in an opinion written by Justice Crooks. “The question before us in this case is primarily a question of timing: whether a circuit court has the authority to order a defendant to disclose any planned McMorris evidence prior to trial, so that the factors involved in determining the evidence’s admissibility can be weighed not only prior to admission, but also prior to trial” (¶ 21). The order did not compel discovery because it was limited to “nothing more than evidence that the party chooses to submit” (¶ 24). For this reason, the order fell within the discretion of the trial court to “exercise reasonable control” over the presentation of evidence, as provided by Wis. Stat. section 906.11(a), as well as controlling federal case law, for example, Taylor v. Illinois, 484 U.S. 400 (1988). In sum, “where McClaren seeks to introduce McMorris evidence in support of a self-defense claim, the circuit court has the authority under Wis. Stat. § 906.11, in conjunction with Wis. Stat.
§ 901.04(3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial” (¶ 28). The order did not violate McClaren’s constitutional rights, because it only “accelerates the disclosure of information that would be presented at trial” (¶ 35).

The supreme court cautioned, however, that violations of such orders should not result in the automatic exclusion of evidence. “[I]n Taylor, the United States Supreme Court sets forth the appropriate analysis for such a violation and establishes that sanctions up to and including exclusion of evidence are permissible if warranted. It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was ‘willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence,’ the test set forth in Taylor”(¶ 50).

Justice Bradley dissented on the ground that the court’s pretrial order was an unauthorized discovery device.

Chief Justice Abrahamson did not participate in this case.

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Motor Vehicle Law

State v. Lange, 2009 WI 49 (filed 16 June 2009)

The defendant was charged with operating under the influence of an intoxicant (OWI) as a second offense. He moved to suppress the results of a blood test obtained following his arrest, claiming that the police lacked probable cause to arrest him on the OWI charge. The circuit court denied the motion, and the defendant pleaded no contest. In an unpublished opinion, the court of appeals reversed the circuit court. In a majority decision authored by Chief Justice Abrahamson, the supreme court reversed the court of appeals.

The supreme court held that the circuit court did not err in concluding that the state met its burden of establishing that, at the time of the arrest, the law enforcement officer had probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant (see ¶ 4). The totality of the circumstances within the officer’s knowledge at the time of arrest would lead a reasonable police officer to believe that the defendant was under the influence of an intoxicant while operating his vehicle (see ¶ 23). 

The totality of the circumstances in this case included the following five factors: 1) “wildly” dangerous driving by the defendant that included crossing the center line multiple times and increasing his speed to more than 80 miles per hour while being pursued by the police; 2) the experience of the officers, including one officer who had been involved in more than 100 OWI investigations; 3) the fact that the driving occurred at bar time on a Saturday night; 4) one officer’s knowledge before the arrest that the defendant had a previous conviction for OWI; and 5) the fact that the officer was unable to conduct a traditional OWI investigation with measures like sobriety tests because the pursuit ended with the defendant crashing into a utility pole and sustaining injuries such that he was unconscious, bloody, and lying amid a gasoline-soaked crash scene when the officer got to him (see ¶¶ 24-34).

In arguing that the officer did not have probable cause to arrest him for OWI, “the defendant assert[ed] that many common indicators of intoxication did not exist in the present case: The defendant did not admit alcohol consumption. There were no odors of intoxicants, no slurred speech or difficulty balancing, no known visits to a bar, no inconsistent stories or explanations, no intoxicated traveling companions, no empty cans or bottles, and no suggestive field sobriety tests” (¶ 21). The supreme court agreed with the defendant that the officer did not observe the common indicators of intoxication that law enforcement officers often detect when investigating whether a driver is intoxicated. Nevertheless, the totality of the circumstances within the officer’s knowledge at the time of arrest would lead a reasonable police officer to believe that the defendant was under the influence of an intoxicant while operating his vehicle (see ¶ 23). The court emphatically rejected the defendant’s contention that this case permits the arrest of “all drivers involved in an accident during the very late or early morning hours”(¶ 39).

Justice Ziegler filed a concurring opinion to emphasize that field sobriety tests need not be given for there to be a finding of probable cause (see ¶ 43). Justice Roggensack and Justice Gableman joined this concurrence.

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Taxation

Ho-Chunk Nation v. Wisconsin Dep’t of Revenue, 2009 WI 48 (filed 16 June 2009)

The Ho-Chunk Nation (a federally recognized Indian tribe) filed claims with the Wisconsin Department of Revenue (DOR) seeking partial refunds of the taxes paid on cigarette sales that occurred on trust land in 2003 and 2004. Wis. Stat. section 139.323(3) (2005-06) authorizes partial refunds for cigarette taxes provided the tax was collected on sales made on land that “was designated a reservation or trust land on or before January 1, 1983.” The land on which the sales took place was approved for purchase from a private seller by the Bureau of Indian Affairs in August 1982 and formally accepted by the U.S. government on Jan. 31, 1983. The question on which this case turned is at what point a particular parcel of land “was designated … trust land” for purposes of Wis. Stat. section 139.323.

In a published decision the court of appeals determined that land cannot be held in trust until formal acceptance occurs and that, to satisfy the tax refund statute’s requirements, land must be held in trust on or before Jan. 1, 1983. Because formal acceptance of the property in question here did not occur until after that date, the court of appeals held that the claim for a refund was properly denied. See 2008 WI App 95, 312 Wis. 2d 484, 754 N.W.2d 186. This is the same result that had been reached by the DOR, the Wisconsin Tax Appeals Commission, and the circuit court (see¶ 2). The Ho-Chunk Nation sought review before the supreme court.

In a majority decision authored by Justice Crooks, the supreme court affirmed. It held that the pertinent language in section 139.323 (“was designated a reservation or trust land”) “is necessarily read as referring to the applicable formal process that must occur in order for land to be a reservation or trust land” (¶ 4). Federal regulations “require ‘approval of an instrument of conveyance’ before the formal acceptance of the land in trust status is accomplished. The deed in the record, the instrument of conveyance [in this case], shows that it was approved on January 31, 1983” (¶ 33). “Because the proper authorities had not completed the necessary steps for the property in question to be designated a reservation or trust land on or before January 1, 1983, and because that is required in order to qualify for the tax refund, the claim [for the partial refunds] was properly denied” (¶ 38).

Justice Prosser filed a dissenting opinion that was joined in part by Chief Justice Abrahamson and Justice Bradley.

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Torts

Estate of Genrich v. OHIC Ins. Co., 2009 WI 67 (filed 7 July 2009)

Robert Genrich underwent ulcer surgery on July 24, 2003. He soon developed a fever and infection, which, the Genrichs learned on Aug. 8, 2003, was triggered by a sponge left inside Robert. He died on Aug. 11, 2003, of sepsis. On Aug. 9, 2006, Robert’s estate and his wife filed suit against certain doctors and hospital staff and an insurer, OHIC. The estate alleged medical negligence, and his wife sued for wrongful death. The circuit court granted OHIC’s motion to dismiss the claims brought by Robert’s wife and his estate on the ground that they were filed after the statute of limitation expired. In an unpublished opinion, the court of appeals affirmed.

The supreme court affirmed in an opinion authored by Justice Roggensack. The court held that “Robert suffered an ‘injury’ for purposes of Wis. Stat. § 893.55(1m)(a) when he experienced a ‘physical injurious change,’ and that the ‘physical injurious change’ occurred more than three years prior to the filing of the estate’s claim”(¶ 2). The parties did not dispute that section 893.55(1m)(a) governed the medical negligence claim. Rather, the case turned on the meaning of the term injury in the statute (see ¶ 11). Based on case law, the court concluded that “Robert’s ‘injury’ that triggered the three-year limitations period in Wis. Stat. § 893.55(1m)(a) occurred on July 24, 2003. It was on that date that an infection-producing sponge was left in Robert’s abdomen, which eventually caused his death. The second surgery performed on August 8, 2003, while it may have inflicted an additional injury on Robert because he was subjected to more surgery, mainly confirmed Robert’s injury from the first surgery. It was the negligence during the first surgery that resulted in an infection-producing sponge being present in Robert’s abdomen. Stated otherwise, by leaving the sponge inside of Robert, the doctors ‘cause[d] a greater harm than existed at the time of the [negligent act]’” (¶¶ 18-19). The court rejected the argument that the statute of limitation “restarted” only when Robert’s condition became irreversible (see ¶ 21).

Because the wrongful death action turned on the same medical negligence, it too was precluded by section 893.55(1m)(a) (see ¶ 2). “[B]y expressly establishing that death resulting from medical malpractice is subject to the same rules as is injury that results from medical malpractice, § 655.007 supports the directive that Wis. Stat. § 895.55(1m)(a) applies regardless of whether the claim for damages is based on injury or death” (¶ 28). The court acknowledged, however, that “some of [its] past decisions, outside of the medical malpractice context, could be interpreted to conclude that claims for damages due to wrongful death accrue on the date of the decedent’s death” (¶ 32). The difference here was the underlying medical negligence. The court discussed dicta in earlier decisions and explained why “those statements have no precedential value” (¶ 39; see also ¶ 45). Finally, the court acknowledged that “harsh” consequences may follow its decision, particularly regarding claims that may accrue before they can be brought (see ¶ 46). The policy decisions were, however, made by the legislature (see ¶ 47).

Justice Bradley, joined by Chief Justice Abrahamson and Justice Crooks, concurred in part and dissented in part. She agreed with Justice Crooks’ dissent that the wrongful death claim accrues only upon death. Justice Bradley also wrote separately to state that although she disagreed with the majority’s analysis of the medical negligence statute of limitation she agreed with its conclusion; she also responded to the majority’s discussion of what constitutes “dicta” (see ¶ 54). The same two justices joined Justice Crooks, who dissented “[b]ecause long-standing precedent in Wisconsin establishes the date of death as the date on which a wrongful death claim accrues, and because the majority rule creates an unnecessary exception to this sensible approach” (¶ 90).

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