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    Court of Appeals Digest

    Daniel Blinka and Thomas Hammer

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    Wisconsin Lawyer
    Vol. 75, No. 4, April 2002

    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

    * *


    Notice of Appeal - Signatures

    State v. Seay, 2002 WI App 37 (filed 23 Jan. 2002) (ordered published 27 Feb. 2002)

    In two cases consolidated for purposes of this decision, the appellants filed unsigned notices of appeal with the clerks of the circuit courts. Both defendants were proceeding pro se. The state contended that the appeals should be dismissed because the omitted signatures deprived the court of jurisdiction.

    The court of appeals, per curiam, "confirmed" that it had jurisdiction. Signatures are required by Wis. Stat. section 802.05(1)(a), yet this statute also "expressly permits a party to sign a paper after it is filed with the court" (¶5). Relying on a federal case that construed analogous rules, the court concluded that the appeals should not be dismissed because of the omitted signatures. It gave both appellants "the opportunity [14 days] to file a signed notice of appeal with the clerk of this court" (¶10).


    Specificity of Grievance Necessary to Permit Arbitration of Grievance

    Milwaukee Police Association v. City of Milwaukee, 2002 WI App 43 (filed 8 Jan. 2002) (ordered published 27 Feb. 2002)

    This case concerns the matter of how specific a grievance needs to be to permit arbitration of that grievance. It presents a matter of first impression in Wisconsin.

    This case arose in the labor context and the court of appeals, in a decision authored by Judge Fine, commenced its analysis with the universal proposition that parties to a collective bargaining agreement are bound by the terms of that agreement unless the terms violate the law. In deciding whether to direct parties to an arbitration agreement to submit their dispute to arbitration, a court must consider the following general principle: "An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." See Milwaukee Police Association v. City of Milwaukee, 92 Wis. 2d 145, 285 N.W.2d 119 (1979).

    The court of appeals concluded that this language is consistent with the following observation made in Ohio Council 8 v. Central State University, 474 N.E.2d 647 (Ohio Ct. App. 1984), which the Wisconsin Court of Appeals adopted in this case: "In view of the purpose and use of these allegations in creating issues for resolution in arbitration, through non-judicial channels by laymen, we are reluctant to adopt a test more strict than the liberalized notice pleading in the courts. If anything, the rule should be more liberal in determining the subject or issue submitted to an arbitrator."

    Civil Procedure

    Substitution of Judge - Review of Substitution Denial by Chief Judge

    Barbara R.K. v. James G., 2002 WI App 47 (filed 3 Jan. 2002) (ordered published 27 Feb. 2002)

    The petitioner filed a request for substitution of judge pursuant to Wis. Stat. section 801.58(1). The judge denied her request because, though a written request for substitution was filed with the clerk of court, the judge did not receive a copy of the request and there was no showing that a copy had been mailed to him as required by the statute.

    The petitioner did not seek review by the chief judge of the denial of her request for substitution and the issue on appeal was whether such review is required in order to preserve the issue for appeal. In a decision authored by Judge Peterson, the court of appeals concluded that denials of requests for substitution of judge must first be reviewed by the chief judge of the judicial administrative district in order to preserve the issue on appeal. If the petitioner wanted to appeal the denial of her request for substitution, she was required to seek review by the chief judge and, because she did not, she has waived her right to appeal.

    Criminal Law

    Obstruction - Protestation of Innocence - Intent to Deceive

    State v. Espinoza, 2002 WI App 51 (filed 23 Jan. 2002) (ordered published 27 Feb. 2002)

    The defendant was charged with obstructing an officer, Wis. Stat. section 946.41(1)(a). The pertinent part of the criminal complaint stated that the defendant denied involvement in an attempt to steal a tire, that he became "quite upset when officers accused him of attempting to steal the tire," and that he threatened to sue them while maintaining "that they had the wrong guy." The circuit court dismissed the complaint because its allegations failed to support a finding of probable cause.

    The court of appeals, in a decision authored by Judge Anderson, affirmed. Although the complaint clearly stated probable cause with respect to several elements of obstruction, the court focused on two particular elements: 1) that the accused knowingly gave false information to an officer, and 2) that the defendant intended to mislead the officer in the performance of his or her duty. Case law distinguished between an accused who acts with the purpose of deceiving and misleading the police and one who acts "simply out of a good faith desire to defend against an accusation of crime" (¶12). The court thus rebuffed the state's "sweeping contention" that because there was probable cause that defendant committed the offense, his denial of involvement established probable cause for obstructing as a matter of law (¶21). The complaint alleged no claim that the defendant's "mere denial of wrongdoing thwarted the police function" (¶22). For this reason, it failed to state probable cause.

    Criminal Procedure

    Stop and Frisk - Applicability of Terry v. Ohio Inside Residential Premises - Consent to Enter

    State v. Stout, 2002 WI App 41 (filed 23 Jan. 2002) (ordered published 27 Feb. 2002)

    A police officer received an anonymous call that a white male named "Jeff" had been seen by the caller selling cocaine on the street in the area of a specified tavern in the city of Racine. The caller claimed to have seen "Jeff" enter the side door at a specific address. The officer went to that address and was met on the stairs by a woman named Mary. He described "Jeff" and asked if that person was in the building. Mary motioned upward toward her apartment and, when asked by the officer if he could go look, Mary responded "I don't care" or words to that effect. Mary knocked on the door and it was opened by someone inside.

    The officer observed an individual, later identified as the defendant Jeff Stout, matching the tipster's description seated on a couch in the living room. As the officer and two uniformed personnel entered the apartment, the defendant made a rapid movement with his right hand toward the area of his pants pocket. Fearing that the defendant had a weapon, the principal officer quickly moved forward, drew his own weapon, and pulled the defendant to his feet. The officer patted the defendant down and recovered crack cocaine during the frisk. The defendant subsequently moved to suppress the evidence, which motion was granted by the trial court. In a decision authored by Judge Brown, the court of appeals reversed.

    The court first considered whether the police entry into the apartment in this case can be justified under the authority of Terry v. Ohio, 392 U.S. 1 (1968), given that the statute codifying Terry (Wis. Stat. section 968.24) and the case law specify that the doctrine only applies to police-citizen confrontations in a public place. The court concluded that the doctrine only applies to stops made in a public place and police may not enter an abode based solely on Terry.

    The next question was whether police must first have reasonable suspicion that someone inside a dwelling has committed a crime as a condition precedent to asking the owner for consent to enter and search the premises. The court concluded that there is no such condition precedent. If the police in fact receive valid consent to enter, they have a right to do so even if their sole purpose is to question a suspect.

    The court then considered whether the police presence at the apartment constituted a seizure of the defendant. The defendant argued that the presence of three officers on the premises was sufficient to establish that he had been seized within the meaning of the Fourth Amendment. The court rejected this position, finding that a reasonable person in the defendant's position would not have had reason to believe that he or she was not free to leave. Though there were three officers on the premises, the evidence showed that when the principal officer entered the apartment, he neither said nor announced anything. There was nothing in his tone of voice that could have made the defendant feel compelled to remain. Prior to the furtive gesture described above, there was no physical contact between the officers and the defendant. Based on this evidence, the court concluded that no seizure of the defendant occurred until after the defendant's gesture toward his pants pocket.

    Lastly, the court considered the constitutionality of the frisk of the defendant after the officer observed him make a rapid movement with his right hand toward the area of his pants pocket. The court held that when the police have lawfully entered a dwelling with valid consent and have reasonable suspicion that a suspect is armed, a pat-down for weapons is permissible. The standard is whether a reasonably prudent officer in the circumstances would be warranted in the belief that his or her safety or that of others was in danger. These safety concerns may arise wherever an officer legitimately encounters an individual, whether in a public place or in a private residence. The court concluded that the content of the tip, the officer's corroboration of the facts in the tip, and his independent observation of suspicious behavior were sufficient to justify the frisk of the defendant.

    Defense Function - Closing Argument - Conceding Guilt

    State v. Gordon, 2002 WI App 53 (filed 15 Jan. 2002) (ordered published 27 Feb. 2002)

    The defendant was convicted of knowingly violating a domestic abuse injunction, disorderly conduct while armed, and second-degree recklessly endangering safety. The court of appeals, in an opinion written by Judge Curley, affirmed in part and reversed in part. Judge Fine dissented to one part of the court's decision. Most of the issues are record-specific and for this reason will not be discussed, yet one novel issue frequently recurs and the court's solution is significant.

    During closing argument defense counsel, as later found by the trial court, conceded that the defendant was guilty of disorderly conduct while armed. The court of appeals upheld the finding as not clearly erroneous. Defense counsel's concession raised a more troubling issue: Did counsel have the power to make such a concession, without the defendant's consent, in light of his not guilty plea? The court concluded that "a defense attorney may not admit his client's guilt, which is contrary to his client's plea of not guilty, unless the defendant unequivocally understands and consents to the admission." And from this it also followed logically "that an attorney may not stipulate to facts which amount to the `functional equivalent' of a guilty plea without the defendant's consent" (¶27). The court of appeals refused to follow other jurisdictions that recognized counsel's unilateral concessions as a permissible "trial tactic." The case was remanded for a Machner evidentiary hearing to determine whether consent was, in fact, given.

    Employment Law

    Bargaining Units - "Confidential Employees" - Standard of Review

    Mineral Point v. WERC, 2002 WI App 48 (filed 31 Jan. 2002) (ordered published 27 Feb. 2002)

    The Wisconsin Employment Relations Commission (WERC) found that a school district's "labs technician" was a "municipal employee," not a "confidential employee," under Wis. Stat. section 111.70(1)(i) (1999-2000), and thus was not included in the bargaining unit. The circuit court reversed the decision. The court of appeals, in an opinion written by Judge Vergeront, reversed based on its conclusion that WERC had reached the correct conclusion.

    Under the statute, "municipal employees" are defined as those employed by a municipality "other than an independent contractor, supervisor, or confidential, managerial, or executive employee." Rejecting the school district's contentions, the court held that "WERC's past and present interpretations of Wis. Stat. section 111.70(1)(i) serve to provide `uniformity and consistency in the application of the statute.'" Thus, WERC's determination that the labs technician was a "confidential employee" was entitled to "great weight and deference" (¶25). Moreover, WERC's application of this precedent was reasonable on the record presented in this case.


    Credibility Experts - Objections

    State v. Delgado, 2002 WI App 38 (filed 15 Jan. 2002) (ordered published 27 Feb. 2002)

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the defendant's convictions for sexual assault. On appeal he claimed that testimony by the state's expert, a psychotherapist, violated the Haseltine rule, which precludes any witness, lay or expert, from offering an opinion about whether some other witness is telling the truth or whether a crime occurred.

    Case law provides the following "general rules": "1) an expert witness can offer opinion testimony only if it complies with Wis. Stat. § 907.02; 2) the testimony can include opinions regarding symptomology common to child sexual assault victims; 3) the testimony can include a description of the symptoms exhibited by the victims; and 4) the testimony can include the expert's opinion as to whether or not the victims' behavior is consistent with behavior of sexual assault victims" (¶8). No expert (or lay witness) is, however, permitted to testify as follows: "1) he or she may not testify that the victim is `being totally truthful;' 2) he or she may not testify that there is `no doubt whatsoever' that the accuser was a victim of moral turpitude; and 3) if he or she is hired to determine whether or not an assault has occurred, the testimony may be limited" (¶9).

    Although the defendant had no objection to the majority of the expert's testimony, he argued that certain parts violated Haseltine. The court of appeals was split over whether the line had been breached, but the court agreed that defense counsel failed to preserve the error by offering timely and specific objections at trial. Moreover, his "standing objection" to the expert's "entire" testimony was manifestly inadequate to preserve the claims. "It is not the duty of the trial court to sua sponte strike testimony that is inadmissible." (¶12). Finally, in a "backhanded" fashion the prosecutor also may have violated the Haseltine rule during closing argument, but the isolated comments, especially when considered in light of the jury instruction to the effect that statements and arguments by counsel are not evidence, rendered them harmless error.

    Family Law

    Grandparent Visitation - No Showing of Parental Unfitness Required - Presumption Regarding Fit Parent's Decisions on Visitation

    Patricia C. v. Virginia O., 2002 WI App 35 (filed 17 Jan. 2002) (ordered published 27 Feb. 2002)

    Roger D.H. was born in 1986. Virginia is his biological mother. She did not marry the biological father. Roger's mother has sole custody; Roger's father is not a party to this action and has no visitation rights at this time.

    Patricia C. is the paternal grandmother of Roger. In 1996 the paternal grandmother and Roger's mother entered into a court-approved stipulation providing the grandmother with visitation rights and an order was entered setting forth the stipulation. See Wis. Stat. § 767.245(3). [Note: Roger is a nonmarital child who has not been adopted and whose paternity has been established and, therefore, section 767.245(3) is applicable to this case.]

    In 1999 the grandmother filed a motion to compel compliance with the 1996 order, asserting that Roger's mother had denied her visitation on several occasions. The circuit court issued an order concluding that, pursuant to Wis. Stat. section 767.245(3) and Troxel v. Granville, 530 U.S. 57 (2000), the mother as a fit parent has the right to make decisions concerning the best interest of her child and, absent a finding that she is an unfit parent, the court could not interfere with her decision regarding visitation. Because the circuit court believed the original 1996 stipulation and order interfered with the mother's decision-making rights, it vacated that order.

    In a decision authored by Judge Lundsten, the court of appeals reversed. It concluded that the circuit court erred when it determined that it could not grant visitation rights to the grandmother absent a showing of parental unfitness. Nothing in Wis. Stat. section 767.245 requires a showing of parental unfitness before a court may override a parent's decision regarding grandparent visitation, nor is there any case law in Wisconsin holding as much.

    The court further held that "when applying Wis. Stat. section 767.245(3), circuit courts must apply the presumption that a fit parent's decision regarding grandparent visitation is in the best interest of the child" (¶ 19). At the same time, the court of appeals observed that "this is only a presumption and that the circuit court is still obligated to make its own assessment of the best interest of the child" (¶ 19). On remand in this case, the appellate court directed the circuit judge to consider the grandmother's request for visitation under the statute, giving presumptive weight to the mother's decision regarding nonparental visitation.


    Forfeiture of Firearms Used in the Commission of a Criminal Offense - Wis. Stat. Section 968.20 - Applicability of Excessive Fines Clause

    State v. Bergquist, 2002 WI App 39 (filed 23 Jan. 2002) (ordered published 27 Feb. 2002)

    Wis. Stat. section 968.20(1m)(b) provides that if seized property is a dangerous weapon or ammunition, the property shall not be returned to any person who committed a crime involving the use of the dangerous weapon or the ammunition. In this case the circuit court concluded that the two guns seized from the respondent had been used in the commission of a crime and were therefore subject to forfeiture under the statute. However, the court concluded that forfeiture of the guns would be grossly disproportionate to the maximum penalty for the crime (the value of the two weapons was between $5,000 and $7,000 and the maximum penalty for the disorderly conduct offense for which the defendant was convicted is $1,000). Therefore, forfeiture would be unconstitutional under the excessive fines clause.

    The issue before the court of appeals was whether the nonreturn of weapons pursuant to the statute cited above constitutes a forfeiture subject to the excessive fines clause of the Eighth Amendment to the U.S. Constitution. In a decision authored by Chief Judge Cane, the court of appeals answered in the affirmative. The excessive fines clause limits the government's power to extract payments, whether in cash or in kind, as punishment for an offense. The critical inquiry in deciding whether the clause applies to a forfeiture statute is not whether it is based in civil or criminal law, but rather whether the forfeiture is punishment. Even if the forfeiture statute serves multiple purposes, the excessive fines clause applies if the forfeiture serves in part to punish. See Austin v. United States, 509 U.S. 602 (1993).

    Wisconsin courts have recognized that the statute governing the disposition of seized firearms satisfies two legitimate police power objectives: deterrence and preventing the same firearms from being used again in criminal activities. This suggests that the goal of the statute is, in part, punishment and therefore the statute is subject to the excessive fines clause.

    The state's appeal in this case was based solely on its theory that the excessive fines clause was inapplicable to the statute in question. The state chose not to argue, in the alternative, that the forfeiture in this case was not an excessive fine. Therefore, the appellate court affirmed the circuit court order without addressing the merits of whether the forfeiture of the respondent's guns would be excessive under the Eighth Amendment.


    Protective Placement - Preliminary Hearings - Jurisdiction

    Kindcare Inc. v. Judith G., 2002 WI App 36 (filed 29 Jan. 2002) (ordered published 27 Feb. 2002)

    Judith G. was ordered into a protective placement as provided by Wis. Stat. section 55.06. Although Judith has since died, the court of appeals determined that this case raised important questions that undoubtedly affect many aged and ill persons, including the liability of their estates for unauthorized placements. The issue presented was "whether the circuit court loses competence to adjudicate a person's need for protective placement if the probable-cause hearing is not held within 72 hours after the person was taken into custody, or whether, as the trial court determined, the 72-hours clock can be reset by the simple expedient of filing a new petition for protective placement" (¶3). The court held that the clock cannot be so "reset."

    In reversing the order for placement, the court of appeals, in an opinion written by Judge Fine, construed the emergency placement provisions of section 55.06(11)(b), which provides, in part, that "a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays and legal holidays, to establish probable cause." The legislatively imposed "tight timetables" recognize the "significant liberty issues" obviously at stake in such placements. On this record, a successive petition was "filed here only to avoid the time limits" (¶18) (emphasis in original). "Timing the running of the 72 hours from either the filing of the initial petition or, as was done here, from the filing of a successive petition would either dilute or destroy the protection afforded by section 55.06(11)(b)" (¶19).


    Stacking - Waiver/Estoppel

    Sugden v. Bock, 2002 WI App 49 (filed 31 Jan. 2002) (ordered published 27 Feb. 2002)

    James and Albert Sugden were struck by an uninsured driver. James died; Albert was injured. American Family had issued four automobile policies to the Sugden family, which provided uninsured motorist (UM) coverage of $25,000 per person, $50,000 per occurrence. The policies covered four different cars: two were issued to the boys' father, one to their mother, and one to their sister. American Family paid the Sugdens a total of $50,000: a $25,000 payment under the sister's policy and an additional $25,000 under one of the father's policies. The insurer's representative told the Sugdens' lawyer that the payments were intended to satisfy James's claim and that additional coverage remained regarding Albert's injuries. In later litigation, however, the circuit court dismissed the Sugdens' claims against American Family, which contended that it had paid the limits under its policies.

    The court of appeals, in an opinion written by Judge Dykman, affirmed. First, the policies contained valid language that prevented stacking under the auspices of the antistacking statute, Wis. Stat. section 632.32(5)(f). Such policy language need not be a "word-for-word mirror of the statute" (¶9). The Sugdens' other arguments on this point evinced a disagreement with the statute's wording, which raised questions for the legislature, not the courts.

    Second, the Sugdens contended that American Family waived its right to assert this policy provision or, alternatively, should be estopped from so doing, when it "voluntarily stacked" the father's and sister's coverage in settling James's claim. Wisconsin case law provides that "coverage" clauses cannot be waived but that "forfeiture clauses" can be waived. The problem for the court was that antistacking clauses did "not fit squarely into either the coverage or forfeiture clause category" (¶14). After reviewing pertinent authority and policy considerations, the court concluded that "no inequity will result from precluding the Sugdens from asserting a waiver or estoppel claim." They received the maximum permitted under the policies for one occurrence, namely $50,000. There was no indication that they relied to their detriment on the insurance agent's "misrepresentation" that more coverage might be available (¶21).

    Bad Faith - Punitive Damages - "Grossly Excessive" Test

    Trinity Evangelical Lutheran Church v. Tower Insurance Co., 2002 WI App 46 (filed 30 Jan. 2002) (ordered published 27 Feb. 2002)

    Based on a summary judgment determination that Tower Insurance had acted in bad faith with respect to its insured, Trinity Lutheran church and school, a jury awarded $3.5 million in punitive damages. The court of appeals, in an opinion written by Judge Anderson, reversed (in part) and remanded the case.

    Trinity purchased liability insurance from Tower that was intended to include coverage for "hired and nonowned" vehicles. Only after a teacher was involved in an accident while transporting students after school did Trinity discover that the insurance agent had inadvertently neglected to "check" the appropriate box for hired and nonowned automobile coverage. The agent promptly informed Tower of the mistake and asked the insurer to backdate the coverage, but Tower refused to do so. Indeed, Tower later filed a summary judgment motion seeking dismissal based on lack of coverage. During discovery, however, a former Tower underwriter acknowledged that he had been asked to include this coverage in Trinity's policy. Tower eventually stipulated to reform Trinity's policy and provided coverage for the accident. Trinity then amended its complaint to allege a bad faith claim against Tower. The trial court granted summary judgment on the bad faith claim. A jury trial was later held on the punitive damages claim.

    The court of appeals reversed the trial court's summary judgment determination of bad faith. Although the pleadings clearly stated a claim that Tower had acted against its insured's (Trinity's) handling of the insurance claim, the record disclosed material issues of fact. In particular, there were factual questions about what Tower knew and whether there was an intentional disregard of Trinity's rights (¶21). For guidance of the parties on retrial, the court also concluded that Tower's obligation to reform the contract was not "fairly debatable"; "What is at issue is whether Tower acted in bad faith prior to its acquiescence to reform," (¶26) especially in its duty to "diligently investigate" the claim.

    Finally, the court of appeals upheld the multimillion dollar punitive damages award, provided the jury finds "bad faith" at the retrial. The record revealed sufficient evidence "that Tower acted in an intentional disregard of Trinity's rights," which justified the submission of punitive damages to the jury. Moreover, the award met the three-part test for assessing whether punitive damages are "grossly excessive." Clearly the state has a legitimate interest in ensuring that insurance companies fulfill their fiduciary and contractual obligations. The facts of record revealed that Tower's conduct was "reprehensible"; for example, 1) Tower denied coverage within two days of the claim without knowing if Trinity had requested such coverage and without "contacting Trinity to determine" if this was the case, and 2) Tower decided not to seek the advice of in-house counsel even after being requested to backdate the policy by its own insurance agent. Nor was the punitive damages award disproportional to the actual harm (here the ratio was 7:1, which the court could not say was "unreasonable"). Finally, a "third guidepost" - namely a comparison of the punitive damages award and the civil or criminal penalties - was "irrelevant" because the legislature had not prescribed any such penalties.

    Juvenile Law

    Sanctions for Failure to Obey Conditions in JIPS Cases - Burden of Proof at Hearing

    State v. Eugene W., 2002 WI App 54 (filed 30 Jan. 2002) (ordered published 27 Feb. 2002)

    Wisconsin statutes provide that if a juvenile who has been found to be in need of protection or services (JIPS) violates the conditions of the juvenile court's dispositional order, the court may impose sanctions, provided the court explained the conditions to the juvenile at the dispositional hearing and informed the juvenile of the possible sanctions. See Wis. Stat. § 938.355(6)(a). As an alternative, the statute allows the court to impose sanctions if, before the violations, the juvenile acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands them.

    In this case the juvenile appealed from a juvenile court order imposing sanctions following his violation of the conditions recited in a JIPS dispositional order. The juvenile is in need of protective services based on the juvenile court's prior finding that he was incompetent to participate in the proceedings in an underlying delinquency case. The juvenile's ability to comprehend the conditions and sanctions was in question at the time of the JIPS dispositional order.

    In this appeal the juvenile argued that the order imposing sanctions violated his right to due process because the state did not establish, and the juvenile court did not determine, that he was able to comprehend the conditions of the JIPS order and the potential sanctions for violating those conditions.

    In a decision authored by Judge Nettesheim, the court of appeals concluded that the statute cited above requires that a juvenile court assure that the juvenile has the ability to comprehend the conditions of the dispositional order and potential sanctions, whether the juvenile is informed of them at the dispositional hearing or at a later time. [Since the court decided this case on statutory grounds, it did not reach the juvenile's constitutional challenge.]

    The court cautioned that "our holding does not create a per se rule that a juvenile who has been declared incompetent to participate in the underlying proceedings is necessarily incompetent to understand the conditions and sanctions warnings issued in a JIPS case. There are different levels of incompetence, and it may very well be that a juvenile who is not competent to participate in the underlying proceeding may nonetheless be capable of understanding the conditions of the dispositional order and the possible sanctions. All we hold is that once the juvenile's ability to understand the conditions and sanctions is put at issue, the court must ascertain whether the juvenile is capable of understanding the conditions and potential sanctions"
    (¶ 20).

    The court further concluded that once the juvenile raises the issue of his or her ability to comprehend the conditions of the dispositional order and potential sanctions, the state has the burden to establish by clear and convincing evidence that the juvenile has such ability.


    Municipal Immunity - Search and Rescue

    Hoskins v. Dodge County, 2002 WI App 40 (filed 31 Jan. 2002) (ordered published 27 Feb. 2002)

    On a rainy, windy, and stormy night in May 1999, residents on a lake made a 911 call to local police regarding a boat in "trouble" that had smashed into a pier. Since the location was not within the city, the dispatcher referred the call to the county sheriffs department. Deputies went to the scene, spoke with witnesses, and decided not to send out rescue boats. Some 15 hours later the sole survivor was found floating in the lake; his two companions had drowned. The plaintiffs sued the city and county, alleging negligence with respect to the search and rescue. The circuit court granted summary judgment dismissing the complaint.

    The court of appeals, in an opinion written by Judge Deininger, affirmed. The dispositive issue was whether the city and county had immunity from the lawsuit, as provided by Wis. Stat. section 893.80(4) and the case law. The plaintiffs contended that the citizens' reports created a "known present danger" that compelled authorities to conduct a search and rescue. The court held, however, that the 911 call "did not communicate the presence of a `known, present danger.' At best, the information reported to dispatch ... was such as to raise the possibility that a boat on Beaver Dam Lake might be in some type of danger. Thus, the dispatchers were not confronted with a danger that was `known and of such quality that the public officer's duty to act becomes absolute, certain, and imperative,' a danger that was `compelling and known to the officer and is of such force that the public officer has no discretion not to act.'" (¶18). The case law established that a duty to conduct a rescue arises only when, for example, witnesses tell authorities that "a person had gone overboard and was then and there in the water, needing to be rescued" (¶ 24). The remainder of the court's decision is a record-intensive analysis that affirmed the trial court's grant of summary judgment.

    Judge Vergeront dissented on the ground that the record precluded summary judgment in favor of the county, although the record supported its grant in favor of the city.


    Juror Bias - Ineffective Assistance of Counsel

    State v. Carter, 2002 WI App 55 (filed 29 Jan. 2002) (ordered published 27 Feb. 2002)

    The court of appeals, in an opinion written by Judge Cane, reversed the defendant's conviction for second-degree sexual assault. It found that his trial counsel was constitutionally ineffective for failing to challenge a juror for cause or use a peremptory strike to remove him.

    During voir dire, a prospective juror indicated that his brother-in-law had been a victim of a sexual assault, an incident that the juror conceded might influence or affect his impartiality. Defense counsel neither questioned the juror further nor sought to strike him from the panel. At postconviction proceedings, trial counsel testified that he thought the juror, who served on the trial jury and voted to convict the defendant, would be impartial nonetheless.

    The court of appeals found that the juror's response indicated subjective bias: "Without any ambiguity, he stated that his own personal experience with a sexual assault in his family would influence or affect his ability to be fair and impartial" (¶8). Although the trial judge found that the juror had been impartial, nothing in the record describing the juror's "demeanor ... would suggest his impartiality after he admitted that knowing a relative who was a victim of a sexual assault would affect his ability to be fair and impartial in this case" (¶13). In this light, trial counsel's failure to question the juror further on voir dire, his failure to ask that the prospective juror be struck for cause, and his failure to use a peremptory strike, constituted ineffective assistance of counsel.