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    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

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    Appeals

    Mootness – Guardianships

    Dane Cnty. v. Sheila W., 2013 WI 63 (filed 10 July 2013)

    HOLDING: A circuit court order appointing a guardian that expired during the pendency of the appeal rendered the case moot.

    SUMMARY: The circuit court appointed a temporary guardian for the purpose of deciding whether Sheila W., a minor, needed medical treatment. Sheila has aplastic anemia and opposed on religious grounds any life-saving blood transfusions. Her parents supported Sheila’s position. Sheila appealed, but the guardianship order expired while the case was pending. In an unpublished opinion, the court of appeals dismissed the appeal as moot, also concluding that the case was inappropriate for decision regardless of mootness.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The supreme court affirmed in a per curiam opinion. “In this case, no determination of this court will have any practical legal effect upon an existing controversy because the order being appealed has expired. There was no request to extend the order and there is no indication that Dane County has sought any additional order to which Sheila W. objects” (¶ 4). And while the case “undoubtedly presents issues of great public importance,” (¶ 7), the court deemed it “unwise to decide such substantial social policy issues with far-ranging implications based on a singular fact situation in a case that is moot” (¶ 8).

    Justice Prosser concurred. He “strongly agree[d]” with the court’s decision and wrote separately to explain why “further court action at this time would be premature and undesirable” (¶ 10).

    Justice Gableman dissented, joined by Justice Roggensack and Justice Ziegler. The dissent pointed to the compelling social policy issues, the need to guide lower courts, and the adequacy of the record.

    Contracts

    Commercial Lease – Misrepresentation

    Tufail v. Midwest Hospitality LLC, 2013 WI 62 (filed 10 July 2013)

    HOLDING: A contract for the lease of commercial property did not contain false representations.

    SUMMARY: Plaintiff Tufail operated the New York Chicken restaurant in Milwaukee. He subsequently leased the property to Midwest Hospitality, which planned to operate a Church’s Chicken on the premises. The lease, which contained an integration clause providing that the entire agreement between the parties had been reduced to writing, warranted that Midwest may not be prevented from using the property for the purposes specifically identified in paragraph 5 of the lease.

    Paragraph 5 provided that “[t]enant may use and occupy the Premises for any lawful purposes, including, but not limited to, the retail sales, consumption, and delivery of food and beverages which shall include, but not be limited to, Chicken products, Fish products, bread products, salads, sandwiches, dessert items, promotional items, and any other items sold by any Church’s Chicken store” (¶ 32).

    The city of Milwaukee subsequently informed Midwest that it would need to obtain a special-use permit to operate a fast-food restaurant with a drive-through on the property. The city then issued such a permit, but the permit contained a provision that the Church’s Chicken close by 9 p.m. Midwest claimed that this limitation on the hours of operation changed the business’s profitability forecast and rendered the operation of a Church’s Chicken on the property not worth the investment. It then notified plaintiff Tufail that it would stop paying rent and was entitled to terminate the lease because Tufail had made a false representation.

    Tufail then commenced the present action, in which it alleged breach of contract, anticipatory breach of contract, and breach of the duty of good faith and fair dealing. Midwest counterclaimed, asserting breach of contract, deceptive advertising, and unjust enrichment claims. Following a bench trial, the circuit court concluded that Tufail did not breach the lease and that Midwest’s early termination was itself a breach of contract. In an unpublished decision, the court of appeals reversed.

    In a majority decision authored by Justice Bradley, the supreme court reversed the court of appeals and affirmed the circuit court’s judgment. It concluded that, under the terms of the lease, Tufail’s representation requires simply that Midwest could not be prevented from using the property for the purposes specifically listed in paragraph 5 of the lease (quoted above). “Notably absent from the list is any requirement that the property may be used as a fast-food restaurant with a drive-through” (¶ 37).

    Likewise, the lease did not set forth any requirements relating to hours of operation as limited by the special-use permit (see id. n.9). “[T]he fact that Midwest Hospitality was granted a special use permit specifically allowing use of the property as a Church’s Chicken restaurant soundly refutes the premise that Midwest Hospitality was prevented from using the property for any of the purposes stated in Paragraph 5” (¶ 43).

    The supreme court further concluded that Tufail’s representations in the lease were not false “because the circuit court found that Midwest Hospitality was not prevented from using the property for the uses specified in the lease, and its finding is not clearly erroneous. Therefore, Tufail did not breach the lease” (¶ 51).

    Justice Prosser filed a dissenting opinion.

    Criminal Law

    Second-Degree Reckless Homicide – Physical Abuse of a Child – Treatment by Prayer Rather Than Medicine

    State v. Neumann, 2013 WI 58 (filed 3 July 2013)

    HOLDINGS: Among many holdings in this case, the court affirmed second-degree reckless homicide convictions against parents who chose to treat their daughter’s serious illness with prayer rather than medicine.

    SUMMARY: Eleven-year-old Madeline Kara Neumann (Kara) died from diabetic ketoacidosis resulting from untreated juvenile-onset diabetes mellitus. Kara died when her father and mother, defendants Dale and Leilani Neumann, chose to treat Kara’s undiagnosed serious illness with prayer rather than medicine. Each parent was charged with second-degree reckless homicide in violation of Wis. Stat. section 940.06(1) and each was convicted, in separate trials with different juries. The court of appeals certified the Neumanns’ appeals to the supreme court.

    In a lengthy and complex opinion authored for the majority by Chief Justice Abrahamson, the supreme court affirmed the convictions. The appeals presented many issues.

    Both defendants claimed that their convictions for second-degree reckless homicide were unconstitutional. Their claim was anchored in Wis. Stat. section 948.03(6), which provides that a person is not guilty of violating section 948.03 (the child abuse statute) “solely because he or she provides a child with treatment by spiritual means through prayer alone … in lieu of medical or surgical treatment.” While the text of the treatment-through-prayer provision carefully limits its application to child abuse prosecutions under section 948.03, the parents argued that the interplay of Wis. Stat. section 940.06(1), the second-degree reckless homicide statute, and section 948.03, the criminal child abuse statute (including the treatment-through-prayer provision), creates a lack of “fair notice” of prohibited conduct (see ¶ 54).

    After an extensive analysis of the statutes involved, the court concluded that “the second-degree reckless homicide statute and the criminal child abuse statute are sufficiently distinct that a parent has fair notice of conduct that is protected and conduct that is unprotected. The statutes are definite enough to provide a standard of conduct for those whose activities are proscribed and those whose conduct is protected. A reader of the treatment-through-prayer provision cannot reasonably conclude that he or she can, with impunity, use prayer treatment as protection against all criminal charges. The … statutes [under scrutiny in this case] are not unconstitutional on due process fair notice grounds” (¶ 81).

    “In sum, when a parent fails to provide medical care to his or her child, creates an unreasonable and substantial risk of death or great bodily harm, is aware of that risk, and causes the death of the child, the parent is guilty of second-degree reckless homicide” (¶ 82). In the cases here, “[t]he juries could reasonably find that by failing to call for medical assistance when Kara was seriously ill and in a coma-like condition for 12 to 14 hours, the parents were creating an unreasonable and substantial risk of Kara’s death, were subjectively aware of that risk, and caused her death. On the record before it, each jury could reasonably find that the State proved the elements of second-degree reckless homicide under Wis. Stat. § 940.06(1)” (¶ 86).

    Additional conclusions of the court in this case included the following:

    1) Although the second-degree reckless homicide statute does not include specific language criminalizing an omission, the parties agreed, as did the court, that an actor may be criminally liable for a failure to act if the actor has a legal duty to act (see ¶ 94).

    2) A parent has a legal duty to provide medical care for a child if necessary (thereby confirming this parental duty as recognized in prior supreme court and court of appeals decisions) (see ¶ 111).

    3) The jury instructions given in these cases imposing a legal duty on a parent to provide medical care for his or her child when necessary do not violate a parent’s fundamental constitutional right to direct the care of his or her child (see ¶ 117).

    4) The jury instructions regarding religious belief were not in and of themselves erroneous (see ¶ 127). In each case, the court informed the jury in essence that the constitutional freedom of religion is absolute as to beliefs but not as to conduct, which may be regulated for the protection of society.

    5) A specific jury instruction concerning the parents’ sincere religious beliefs was not required. The defense argued that second-degree reckless homicide requires proof that the actor was subjectively aware that his or her conduct was a cause of the death and that such awareness would not be present if the actor believed treatment through prayer was the best healing method. The court responded that “[t]he second-degree reckless homicide statute does not require, as the parents claim, that the actor be subjectively aware that his conduct is a cause of the death of his or her child. The statute and the jury instructions require only that the actor be subjectively aware that his or her conduct created the unreasonable and substantial risk of death or great bodily harm” (¶ 138). In this case, “[t]he juries reasonably could have concluded on the basis of the instructions and the record that the parents were subjectively aware that their conduct created the unreasonable and substantial risk of death or great bodily harm and were guilty of second-degree reckless homicide” (¶ 140).

    6) The circuit court did not err during the individual voir dire of jurors in the father’s case when it informed the jurors that Kara’s mother had previously been convicted of the same crime for which they now had to determine the father’s guilt. The mother’s trial was held first and generated immense publicity in Marathon County. The father rejected a change of venue and asserted his right to a speedy trial. Under the circumstances, both the prosecutor and the father’s trial counsel agreed that each prospective juror should be informed about the mother’s conviction; they apparently feared that some jurors would know about her conviction and others would not and they preferred that all jurors have the same information. The circuit court obtained from each juror the assurance that he or she would decide the father’s case in reliance solely on the evidence presented.

    “[T]he circumstances in the present case justified informing the jury about the mother’s status. A speedy trial in the county was requested. The mother’s case had been given immense publicity. It was important to prevent the jury from inferring that the mother went unpunished or that the father was being singled out for prosecution…. The jury was admonished that the mother’s and father’s circumstances are not precisely the same, that their reactions may be different, and the results of the two trials may be different…. [W]e conclude that the father has not sustained his burden to show that reasonable persons in the juror’s position under the circumstances of the instant case could not set aside their knowledge of the mother’s conviction” (see ¶¶ 159-160).

    Justice Prosser filed a dissenting opinion.

    Criminal Procedure

    Jury Trials – Chambers Conferences – Presence of Defendant

    State v. Alexander, 2013 WI 70 (filed 12 July 2013)

    HOLDING: The defendant’s constitutional right to be present at his trial and his statutory right to be present during jury voir dire were not violated when the court conducted mid-trial conferences in chambers with two jurors in the presence of defense counsel and the prosecutor but in the absence of the defendant.

    SUMMARY: Defendant Alexander was charged with first-degree intentional homicide, and his case was tried to a jury. During the trial, two jurors at separate times approached the bailiff to discuss a potential bias issue. One juror stated that she knew a woman in the courtroom gallery, who turned out to be the mother of Alexander’s child, and another said that he knew one of the defense witnesses. To resolve the matter, the judge held separate in-chambers discussions with both jurors to determine the extent of the bias. Both of Alexander’s attorneys and the prosecutor were present for these meetings, but Alexander was not. The court ultimately struck the jurors, over defense counsel’s objections.

    Alexander was convicted and sought postconviction relief, arguing that he had a constitutional and statutory right to be present during the in-chambers discussions. The circuit court denied postconviction relief and, in an unpublished decision, the court of appeals affirmed. In a majority decision authored by Justice Gableman, the supreme court affirmed the court of appeals.

    The court characterized its task in this case as determining “whether a defendant must be physically present when a judge holds an in-chambers discussion with a juror during the middle of a trial. We recognize that a defendant has a constitutional right to be present at his trial. Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Whether this right to be present at trial encompasses in-chambers meetings admits of no categorical ‘yes’ or ‘no’ answer. A conference in chambers might well constitute part of the trial depending upon what matters are discussed or passed upon. Likewise, such a conference might not be a part of the trial in the sense of one’s constitutional right to be present. The test for whether a defendant’s presence is required at an in-chambers hearing, or at a conference in the courtroom after the judge has emptied it of spectators, is whether his absence would deny him a fair and just hearing” (¶ 1) (internal quotations and citation omitted).

    The majority concluded that in this case the circuit court’s decision to exclude the defendant from the in-chambers meetings with the jurors did not deprive him of a fair and just hearing. “As the United States Supreme Court has outlined, the factors a trial court should consider in determining whether a defendant’s presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether he would gain anything by attending, and whether the presence of the defendant would be counterproductive. Alexander would not have been able to contribute anything to the circuit court’s inquiry of the jurors, and may in fact have intimidated them if he had been present. Additionally, both of Alexander’s attorneys were present at the in-chambers meetings. Alexander’s absence thus did not violate his constitutional right to be present at his trial” (¶ 4) (citation omitted).

    The court further concluded that “Alexander’s statutory right under Wis. Stat. § 971.04(1)(c) to be present during voir dire was not violated. Voir dire is a preliminary examination of whether an individual can serve on a jury. In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose. Section 971.04(1)(c) is thus inapplicable here” (¶ 33).

    Justice Crooks filed a concurring opinion that was joined by Chief Justice Abrahamson (who also wrote a separate concurrence) and by Justice Bradley. Justice Ziegler wrote a concurring opinion in which she joined the majority opinion but wrote separately “to point out that even if we were to conclude that a constitutional or statutory protection was violated, the error in not having Alexander present, under these facts, is harmless” (¶ 76).

    Interrogation – Miranda – Invoking the Miranda Right to Counsel – Maryland v. Shatzer Rule

    State v. Edler, 2013 WI 73 (filed 12 July 2013)

    HOLDINGS: The defendant clearly and unambiguously invoked his Miranda right to counsel when he stated, “Can my attorney be present for this”; and the rule of Maryland v. Shatzer applies in Wisconsin.

    SUMMARY: This case involved issues relating to a suspect’s Miranda right to counsel. In Edwards v. Arizona, 451 U.S. 477 (1981), the U.S. Supreme Court created a presumption that after a suspect validly invokes his or her Miranda right to counsel, any subsequent waiver is invalid unless an attorney is present or the suspect initiates further communication, exchanges, or conversations with the police. More recently, in Maryland v. Shatzer, 559 U.S. 98 (2010), the Court concluded that the Edwards presumption ends when the suspect has been outside police custody for 14 days.

    In this case, Edler urged the supreme court not to adopt Shatzer and instead to interpret the Wisconsin Constitution to require a permanent bar on subsequent interrogation, or in the alternative, adopt a different test. In a majority decision authored by Justice Crooks, the court saw no need to interpret the Wisconsin Constitution to provide different protection than that provided by the U.S. Supreme Court’s interpretation of the U.S. Constitution (see ¶ 4). It adopted the Shatzer 14-day rule for Wisconsin (see ¶ 28).

    The court also examined whether the defendant unambiguously invoked his Miranda right to counsel when he was interrogated on April 20, 2011, more than 14 days after he was released from a previous custody. (During the earlier period of custody, he had invoked his Miranda right to counsel when questioned on March 30, 2011, and that interrogation session was halted.) Following Edler’s second arrest and during a ride to the police station in a squad car while handcuffed, Edler stated, “Can my attorney be present for this.” The detective stated that he could. No incriminating statements were made during the ride. When they arrived at the station, the detective encouraged the defendant to follow his father’s advice to cooperate with the police, and he then gave the defendant the Miranda warnings. The defendant waived his rights and made some incriminating statements.

    On these facts, the court concluded that the defendant unambiguously invoked his Miranda right to counsel. The standard is whether the defendant articulated with sufficient clarity his desire to have counsel present such that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney (see ¶ 34). Given the circumstances surrounding the invocation (including the fact that the same detective interrogated the defendant on both occasions and was thus aware that the defendant had invoked his right to counsel when previously questioned about the same crimes) and “the understanding that statements beginning with the word ‘can’ often constitute a request, we hold that Edler’s statement, ‘can my attorney be present for this,’ was a valid invocation of the right to counsel” (¶ 39). After Edler’s request for an attorney, police should have ceased questioning him. Because they did not, Edler’s statements made after that request must be suppressed (see id.). 

    Chief Justice Abrahamson filed a concurring opinion. Justice Ziegler filed an opinion concurring in part and dissenting in part. Justice Gableman did not participate in this case. 

    Right to Counsel – Ineffective Assistance of Appellate Counsel

    State v. Starks, 2013 WI 69 (filed 12 July 2013)

    HOLDINGS: A defendant claiming that appellate counsel was ineffective for failing to raise certain arguments must demonstrate that those arguments are “clearly stronger” than those originally advanced by appellate counsel; and the filing of a Cherry motion to challenge the imposition of a DNA surcharge does not preclude the filing of a subsequent Wis. Stat. section 974.06 postconviction motion.

    SUMMARY: Claims of ineffective assistance of appellate counsel must be filed in the form of a petition for a writ of habeas corpus with the court of appeals. See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). In this case, the supreme court addressed the appropriate pleading standard that a court must use when a defendant alleges in a petition for writ of habeas corpus that his or her appellate counsel was ineffective for failing to raise certain arguments (see ¶ 5).

    In a majority decision authored by Justice Gableman, the court concluded that “a defendant who argues he received ineffective assistance of appellate counsel in a habeas petition because certain arguments were not raised must show why the claims he believes should have been raised on appeal were ‘clearly stronger’ than the claims that were raised” (¶ 74). On the facts of this particular case, the court concluded that the arguments made in the challenge to the effectiveness of appellate counsel were not clearly stronger than the arguments originally made by appellate counsel and thus the defendant was not entitled to habeas relief.

    The supreme court also concluded that the “filing of a Cherry motion does not procedurally bar a defendant from filing a future Wis. Stat. § 974.06 motion” (¶ 32). A Cherry motion is a challenge to the imposition of a DNA surcharge on the defendant. See State v. Cherry¸ 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393. Cherry motions and section 974.06 postconviction motions are “wholly distinct” (¶ 52). This holding was significant in light of the Escalona-Naranjo line of cases that place limitations on successive section 974.06 motions. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).

    Justice Bradley filed a dissenting opinion in which she agreed that a Cherry motion does not bar a subsequent section 974.06 motion; however, she “part[ed] ways [with the majority] when it adopts a new bright-line test for evaluating claims of deficient performance of counsel” (¶ 76). Chief Justice Abrahamson and Justice Crooks joined Justice Bradley’s concurrence.

    Family Law

    Surrogacy – Parentage Agreement – Termination of Parental Rights

    Rosecky v. Schissel, 2013 WI 66 (filed 11 July 2013)

    HOLDING: A surrogacy agreement was enforceable by application of contract principles, with the exception of a termination-of-parental-rights provision.

    SUMMARY: David and Marcia Rosecky entered into a parentage agreement (PA) with Monica and Cory Schissel whereby the parties agreed that Monica would become pregnant and carry a child for the Roseckys. The agreement provided that “[the Roseckys] shall be the legal parents of [the] Child,” that the “Child’s best interests will be served by being in [the Roseckys’] legal custody and physical placement,” and that “[t]he parties will cooperate fully in any parentage proceedings to determine [the Roseckys] as [the] [C]hild’s legal parents, … including but not limited to termination of parental rights and adoption” (¶ 1). Monica became pregnant through artificial insemination using her egg and David Rosecky’s sperm. In March 2010, Monica gave birth to F.T.R.

    Shortly before F.T.R.’s birth, Monica informed the Roseckys that she no longer wanted to give up her parental rights. She further sought custody of and placement with F.T.R. David responded by seeking enforcement of the PA. The circuit court determined that the PA was not enforceable, and after a trial, awarded sole custody of F.T.R. to David, primary placement to David, and secondary placement to Monica. David appealed, seeking enforcement of the PA and sole custody and placement of F.T.R.

    The court of appeals certified to the supreme court the question of “whether an agreement for the traditional surrogacy and adoption of a child is enforceable.” The supreme court granted certification. In a majority decision authored by Justice Ziegler, the supreme court reversed.

    The supreme court determined that the Wisconsin Statutes do not provide a specific answer regarding the enforceability of the PA (see ¶ 48). It therefore resorted to contract law principles and held that, aside from the termination-of-parental-rights (TPR) provisions (see below), “the PA is a valid, enforceable contract unless enforcement is contrary to the best interest of F.T.R.” (¶ 55).

    “[W]e conclude that the interests supporting enforcement of the PA are more compelling than the interests against enforcement. Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child’s life” (¶ 61). “We find no public policy statement contrary to the enforcement of the PA in the Wisconsin Statutes or in Wisconsin cases” (¶ 64).

    And, “while the traditional defenses to the enforcement of a contract apply, none have been presented to render the PA [in this case] unenforceable” (¶ 55). This contract was entered into voluntarily and was “well-planned, negotiated and carefully executed” (¶ 67). There are no facts of record that would render it void or voidable due to misrepresentation, mistake, duress, undue influence, or incapacity (see id.).

    However, the court also concluded that the portions of the PA requiring Monica to terminate her parental rights are not enforceable under the language of the existing statutes. “As the circuit court correctly noted, the portions of the PA requiring a voluntary TPR do not comply with the procedural safeguards set forth in Wis. Stat. § 48.41 because Monica would not consent to the TPR and there is no legal basis for involuntary termination. See Wis. Stat. § 48.415…. We further conclude that the offending TPR provisions in the PA can be severed from the remainder of the contract without defeating the primary purpose of the agreement” (¶¶ 65-66).

    Lastly, the supreme court found that the circuit court erroneously exercised its discretion when it rendered a custody and placement order without consideration of the PA (see ¶ 72). The majority concluded the opinion by urging the legislature to consider enacting legislation regarding surrogacy. “Surrogacy is currently a reality in our Wisconsin court system. Legislation could address surrogacy agreements to ensure that when the surrogacy process is used, the courts and the parties understand the expectations and limitations under Wisconsin law” (¶ 73) (internal citation and quotations omitted).

    Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley.

    Marriage – Posthumous Challenge to Validity of Marriage

    McLeod v. Mudlaff, 2013 WI 76 (filed 16 July 2013)

    HOLDING: In an estate action challenging a marriage, a court may use its declaratory judgment powers to declare that a marriage prohibited by law was void and incapable of validation by the parties to the marriage.

    SUMMARY: These consolidated cases were before the supreme court on certification from the court of appeals. They arose from competing petitions for the appointment of a personal representative and the formal administration of the estate of Nancy Ellen Laubenheimer. Joseph McLeod filed a petition for formal administration of Laubenheimer’s estate and his appointment as personal representative. He also asserted his right, as Laubenheimer’s husband, to a share of her estate.

    Patricia Mudlaff, Laubenheimer’s stepdaughter, also filed a petition for formal administration and appointment as personal representative. Patricia asserted that Laubenheimer’s marriage to McLeod was invalid because Laubenheimer lacked the mental capacity to consent to the marriage to McLeod. Thus, Patricia asked the circuit court to declare Laubenheimer’s marriage void, making McLeod ineligible to receive a share of Laubenheimer’s estate. The circuit court rejected Patricia’s argument, concluding that annulment is the only way to void a marriage and that a Wisconsin statute prohibits annulment after the death of one of the parties to the marriage.

    In a majority decision authored by Justice Prosser, the supreme court reversed. The majority relied substantially on the court of appeals’ decision in Ellis v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692, in which the court held that there is a fundamental distinction between annulment and a judicial declaration that a marriage is void, and that, in an estate action challenging a marriage, a court may use its declaratory judgment powers to declare that a marriage prohibited by law was void and incapable of validation by the parties to the marriage.

    In the present case, the supreme court concluded that “the holdings and analysis in Estate of Toutant are correct. Annulment is certainly an appropriate remedy to void a marriage when the parties to the marriage are still alive, but it is not the exclusive remedy to challenge the validity of a marriage. The common law drew a distinction between an annulment and a declaration that a marriage was void, especially a declaration after the death of one of the parties. Our statutes and case law have preserved that distinction” (¶ 6).

    “Wisconsin Stat. ch. 765 sets out the criteria for a valid marriage in this state. Failure to meet one of these criteria will often result in a void marriage. An action under the Uniform Declaratory Judgments Act (the UDJA) is the established mechanism for testing the validity of a marriage in an estate case because the UDJA explicitly provides standing for interested parties in an estate action” (¶ 7).

    The majority further concluded that a change in the annulment statute in 2005 Wisconsin Act 443 “did not alter the holdings in the Estate of Toutant case. There is no evidence that the legislature sought to curtail a court’s power to address fraud, mistake, and other exigencies in a disputed marriage in order to ‘declare rights, status, and other legal relations.’ Wis. Stat. § 806.04(1). Limiting a court’s power to address these issues would effectively shut off declaratory remedies for parties in an estate action” (¶ 8).

    Justice Ziegler and Justice Gableman filed separate dissenting opinions.

    Insurance

    Intentional Acts – Covered Premises

    Schinner v. Gundrum, 2013 WI 71 (filed 12 July 2013)

    HOLDING: An aggravated battery committed by a guest at an underage drinking party hosted by the insured was not a covered occurrence under a homeowner’s policy nor was the location covered by the policy.

    SUMMARY: While attending a party at which underage individuals were drinking, Schinner was seriously injured when beaten by another guest, who was intoxicated. The party was hosted by Gundrum, an insured under the family’s homeowner’s policy. The party was held in a pole barn that was primarily used for the family’s trucking business and was also covered by a commercial general liability (CGL) policy. The circuit court granted summary judgment for the insurer on grounds that Gundrum had acted intentionally in hosting the party and, in any event, the injury occurred at an uninsured location. In a published opinion, the court of appeals reversed. See 2012 WI App 31.

    The supreme court reversed the court of appeals in an opinion authored by Justice Prosser. Analyzing the term “occurrence,” the court held that it must be assessed from the standpoint of the insured (see ¶ 52). It concluded “that Gundrum’s intentional actions in hosting a large underage drinking party – actions that were illegal – and providing alcohol to an individual known to become belligerent when intoxicated, were a substantial factor in causing Schinner’s bodily injury. These causes were not accidental. Since there was no occurrence under the homeowner’s policy, there was no initial grant of coverage to Gundrum under the policy” (¶ 81).

    The court also held that the injury occurred at an uninsured location on the property. “The fact that the Gundrums kept some personal property insured under the policy at the shed did not make the shed a premises used in connection with the insured’s residence, as those terms are defined in the policy. Thus, the business shed was not an insured location triggering coverage under the homeowner’s policy” (¶ 9).

    Justice Crooks concurred in the majority’s conclusion that the noninsured-location exclusion applied but joined the dissent’s position on whether there had been an “occurrence” within the policy’s meaning.

    Justice Bradley, joined by Chief Justice Abrahamson and Justice Crooks, dissented. They agreed with the majority that an “occurrence” is assessed from the insured’s standpoint but contended that the majority erred when applying it to the plaintiff’s claims sounding in Gundrum’s negligence in failing to protect Schinner.  

    Torts

    Immunity – Firefighters

    Brown v. Acuity, 2013 WI 60 (filed 9 July 2013)

    HOLDING: A volunteer firefighter’s negligence in a collision fell within the ministerial-duty exception to public officer immunity.

    SUMMARY: Several persons were injured in a car accident that resulted from a volunteer firefighter, Burditt, driving through a red stop signal while responding to an emergency call. Although Burditt’s vehicle had three flashing red lights, it was not equipped with an audible signal. The circuit court granted summary judgment in favor of Burditt and other defendants, concluding that he had immunity as a public officer and did not fall within the ministerial-duty exception. In a published opinion, the court of appeals affirmed. See 2012 WI App 66.

    A unanimous supreme court reversed in an opinion authored by Justice Bradley. Burditt acted within the scope of his employment and thus fell within the class of individuals otherwise shielded by public officer immunity. The “undisputed facts” showed that Burditt’s purpose was to serve the fire department when the accident occurred (see ¶¶ 37-38).

    Nonetheless, the court concluded “that Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity” (¶ 4). Pertinent statutes provide that not only must the driver proceed with “due regard” for the safety of others, but authorized emergency vehicles must give both visual and audible signals. Burditt acknowledged that he made a “poor decision” (¶¶ 47-48). Because his vehicle lacked an audible signal, “he had no discretion to proceed through the red stop signal” (¶ 54). 

    Immunity – “Agents”

    Showers Appraisals v. Musson Bros., 2013 WI 79 (filed 18 July 2013)

    HOLDING: A city contractor was not acting as the city’s agent for purposes of governmental immunity.

    SUMMARY: The state and the city of Oshkosh agreed to perform street and sewer improvements in the city. The city contracted with Musson, which tore out the existing pavement and disconnected the sewers as part of the project. Unusually heavy rains caused severe flood damage to a building owned by Showers, who alleged that Musson had been negligent in planning for this contingency. The circuit court granted summary judgment in favor of Musson, ruling that it was entitled to governmental immunity under Wis. Stat. section 893.80(4). In a published decision, the court of appeals affirmed. See 2012 WI App 80.

    The supreme court reversed in an opinion by Justice Roggensack that essentially reboots the doctrine governing governmental immunity. The court’’s holdings, which are summarized at paragraphs 2-4, consider both section 893.80(4) and case law, especially Estate of Lyons v. CNA Insurance Co., 207 Wis.2d 446, 558 N.W.2d 658 (Ct. App. 1996).

    “[W]hen a governmental contractor seeks immunity under Wis. Stat. § 893.80(4), the contractor must show both that the contractor was an agent as that term is used in § 893.80(4), i.e., as is expressed in the Lyons test, and that the allegedly injurious conduct was caused by the implementation of a decision for which immunity is available for governmental entities under § 893.80(4)” (¶ 36). The court also clarified that “an allegation of negligent workmanship would not have the potential for immunity under § 893.80(4),” thus obviating the need for any Lyons inquiry (¶ 39).

    And “in addition to satisfying the Lyons test for governmental contractor immunity, a contractor asserting immunity must be able to demonstrate that the conduct for which immunity is sought was the implementing of a governmental entity’s decision made during the exercise of the entity’s legislative, quasi-legislative, judicial or quasi-judicial functions. To apply Lyons without analyzing the applicability of immunity under Wis. Stat. § 893.80(4) to the particular act for which liability is alleged could grant a governmental contractor broader immunity than the governmental entity itself would be entitled to under the statute. Accordingly, in the future, when a governmental contractor asserts that it is entitled to immunity under § 893.80(4), we encourage litigants and courts to adhere to the statutory standard to determine whether the alleged immunity-supporting functions are legislative, quasi-legislative, judicial or quasi-judicial” (¶ 45).

    Applying this standard, the court held that Musson failed to meet the Lyons’ test because the “means and methods” language in the contract showed that Musson was not acting in accordance with reasonably precise specifications set forth by the government (see ¶ 47). Nor did the record show, as required by Wis. Stat. section 893.80(4), that Musson acted in a legislative, quasi-legislative, judicial, or quasi-judicial capacity. Rather, Showers alleged that Musson negligently performed its duties relating to excavation and drainage (see ¶ 52).

    The court cautioned that “in future cases, governmental contractors seeking immunity should include in their pleadings sufficient facts to demonstrate that the governmental entity from which the contractor would derive immunity was engaged in one of the functions for which immunity is available under Wis. Stat. § 893.80(4), and that the contractor was an agent with respect to injury-causing conduct” (¶ 55).

    Justice Crooks, joined by Chief Justice Abrahamson and Justice Bradley, joined in the judgment but not the opinion because it portends a “fundamental change in our immunity jurisprudence” that is not explicitly acknowledged and would be better achieved through “an incremental approach to correcting the problems” (¶ 63).




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