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  • Wisconsin Lawyer
    March 31, 2008

    Court of Appeals Digest

    Wisconsin Lawyer
    Vol. 75, No. 8, August 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

    * *

    Civil Procedure

    Issue Preclusion - Survivorship Accounts - Probate

    Randall v. Felt, 2002 WI App 157 (filed 30 May 2002) (ordered published 26 June 2002)

    Juanita and her brother, Wayne, disputed the probate of their mother's estate. The trial court ruled that several bank accounts should be inventoried in the estate as property subject to administration. Juanita claimed that she held the two accounts jointly with her mother and that they passed to her by right of survivorship. The trial court ruled, however, that issue preclusion barred Juanita from arguing her position based on what had transpired at a guardianship proceeding.

    The court of appeals, in an opinion written by Judge Deininger, agreed with Juanita that issue preclusion did not bar Juanita's survivorship claim because its validity had not been "actually litigated" in the earlier guardianship hearing, where the only issue raised was whether a guardian should be appointed for the mother. No testimony or evidence was introduced. Although the joint accounts were discussed by court and counsel, "the court simply relied on their existence as a factor in deciding that a guardian of the estate should be appointed" (¶10). The "questionable validity" of the survivorship accounts was first raised in probate court when Wayne objected to the inventory that Juanita had filed (Juanita was required to inventory all of her mother's property, including the jointly held accounts).

    The court remanded the matter for litigation over the status of the jointly held accounts along with some directions about issues likely to arise. First, the appointment of a guardian for the mother does not "in and of itself" establish that she lacked the testamentary capacity to make testamentary dispositions (¶13). Second, the late father, who predeceased the mother, also had been a joint tenant when Juanita's name was added to one account. Third, Wayne may defeat the presumption that the accounts passed to Juanita upon her mother's death by presenting "clear and convincing evidence" that Juanita's name was added to the account for the sole purpose of facilitating her management of money for her mother's benefit, not to create a survivorship interest (¶17).

    Criminal Law

    Violation of Harassment Injunction - Criminal Code Offense of Harassment - Multiple Convictions

    State v. Sveum, 2002 WI App 105 (filed 18 April 2002) (ordered published 29 May 2002)

    The defendant was charged and tried on a multiple-count information for actions he took against his former girlfriend following the entry of an injunction that prohibited him from contacting her. Among other things, he was convicted of harassment, contrary to Wis. Stat. section 947.013(1r), and a separate offense of violating a harassment injunction issued pursuant to Wis. Stat. section 813.125(4). The same conduct underlies both convictions.

    Among the issues before the court of appeals were whether violating a harassment injunction is a criminal offense and whether violating a harassment injunction is a lesser-included offense of the crime of harassment.

    In a decision authored by Judge Roggensack, the court of appeals concluded that violating a harassment injunction issued pursuant to section 813.125(4) is a criminal offense. It also held that that crime is not a lesser-included offense of the crime of harassment codified at section 947.013(1r). Each offense requires proof of an element that the other does not and, in the view of the appellate court, there is no indication that the legislature intended to prohibit multiple punishments for these two offenses.

    Amendment to Statute of Limitation for Sexual Assault of a Child - Ex Post Facto Challenge

    State v. Haines, 2002 WI App 139 (filed 9 May 2002) (ordered published 26 June 2002)

    In 2000 the state charged the defendant with second-degree sexual assault of a child under age 16, contrary to Wis. Stat. section 948.02(2). The complaint alleged that the offense occurred in 1992. At the time of the offense, the applicable statute of limitation provided that the prosecution had to commence before the victim reached age 21. In 1994, about five years before the victim would turn 21, the statute of limitation was amended to provide that a prosecution for the offense in question had to commence before the victim reached age 26. When the charge in this case was brought in 2000, the victim was 22.

    The defendant moved for dismissal, claiming that the prosecution was barred by the age 21 limitation in effect at the time of the alleged assault. He also claimed that prosecution under the amended age 26 limitation in effect at the time of the filing of the complaint violated the ex post facto clause of the Wisconsin Constitution. The circuit court dismissed the complaint, concluding that prosecution under the amended statute of limitation violated the ex post facto clause.

    In a decision authored by Judge Lundsten, the court of appeals reversed. The appellate court held that the 1994 amended version of the statute of limitation applies to the defendant. The 1994 law specifically provides that its longer time limitation first applies to offenses that were not barred from prosecution on the effective date of the change, which was April 22, 1994.

    The court further concluded that application of the 1994 amended statute allowing prosecution to commence before the victim reached age 26 did not violate the ex post facto clause. Among other things, the ex post facto clause protects against removal of a defense that was available when the act was committed. The 1994 amendment did not remove a defense that was available to the defendant in 1992. At the time of the alleged assault, the defendant had no statute of limitation defense. In fact, such a "defense" would not have been available until 1999, when the former statute of limitation would have run. The court found persuasive the decisions of federal and state courts that have concluded that retroactive application of a new statute of limitation, enacted before the old limitation period had not yet run, does not violate the ex post facto clause.

    The court observed that the case before it involved a statute of limitation change that occurred before the prior statute had run with respect to the defendant. The court did not address what the result might be if a statutory change had occurred after the prior time limit had run.

    Habitual Criminality - Constitutionality of Wisconsin's "Two Strikes" Law

    State v. Radke, 2002 WI App 146 (filed 23 May 2002) (ordered published 26 June 2002)

    The defendant was sentenced to life in prison without the possibility of parole under Wisconsin's "two strikes" statute. See Wis. Stat. § 939.62(2m). This statute requires a life sentence without parole or extended supervision if the state alleges and proves that the defendant has committed what the statute defines as a "serious child sex offense" and has a prior conviction for such an offense.

    In this case the defendant argued that the "two strikes" law violates substantive due process and is unconstitutional on its face. In a decision authored by Judge Dykman, the court of appeals affirmed the circuit court's denial of the defendant's motion for post-conviction relief.

    Unless it infringes on a "fundamental right," a statute will generally survive a substantive due process challenge if it is rationally related to a legitimate government interest. The defendant did not argue for a heightened standard of review and thus the court of appeals applied the "rationally related" standard. It concluded that the legislature's interest in protecting children is rationally related to a sentencing scheme that requires a sentence of life in prison without parole upon a second conviction for sexually assaulting a child, as was the case with the defendant. Because the "two strikes" law does not violate substantive due process as it applies to the defendant, the appellate court did not need to determine whether a rational basis exists with respect to all of the other crimes that are classified as "serious child sex offenses" in the statute cited above.

    The court also rejected the defendant's argument that the "two strikes" law is arbitrary and irrational because it is "logically inconsistent" with another portion of the repeater statute known as the "three strikes" law.

    Lastly, the court observed in a footnote that the defendant did not argue that the "two strikes" law inflicts cruel and unusual punishment and therefore the court did not address that issue. In that same footnote the court cited State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996), as holding that the "three strikes" provision of the persistent repeater statute does not inflict cruel and unusual punishment.

    Criminal Procedure

    Miranda Warnings - Interrogation During Terry Stop

    State v. Morgan, 2002 WI App 124 (filed 4 April 2002) (ordered published 29 May 2002)

    A police officer went to an apartment building to investigate because a bag of marijuana had been found in the freezer of an apartment that the tenant had vacated and intended to sublet. A plain clothes officer met with a building security guard who also was a part-time police officer to investigate the incident. Both were armed.

    The plain clothes officer obtained permission from the tenant to search the apartment. During the search, someone attempted to enter the apartment with a key. Both officers drew their guns and, as soon as the person entered the apartment, the plain clothes officer identified himself as a police officer and told the individual to stop. This individual was the defendant.

    The defendant ran from the apartment and was chased down by the plain clothes officer. He was apprehended while attempting to get into a vehicle. The officer grabbed hold of the defendant and brought him to the trunk area of the car. The officer handcuffed the defendant with his hands behind him, frisked him for weapons, found none, and sat him on the curb to the rear of the vehicle. Thereafter the defendant and another occupant of the vehicle were secured in a police squad car that had arrived at the scene. The defendant was still handcuffed.

    The officer then obtained the defendant's consent to search the car and, upon doing so, discovered a "blunt" in the ashtray. Without giving the defendant Miranda warnings, the officer asked the defendant what he knew about the blunt in the ashtray and the defendant responded that he and his passenger were smoking the blunt before they got to the apartment as described above. Before asking this question, the officer did not tell the defendant that he was under arrest.

    The defendant moved to suppress the statement described above because it had been obtained from him in the absence of Miranda warnings. The circuit court denied the motion. The court of appeals, in a decision authored by Judge Vergeront, reversed.

    On appeal, the defendant argued that the circuit court erred in refusing to suppress the statement. He argued that he was "in custody" for purposes of Miranda warnings and his statement obtained without those warnings should have been suppressed. [Note: The defendant did not challenge any of the officers' actions as being unreasonable under the Fourth Amendment.]

    In determining whether an individual is "in custody" for purposes of Miranda, a court considers the totality of the circumstances, including such factors as the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint. When considering the degree of restraint, factors examined include whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved. The fact that a defendant is detained pursuant to a Terry stop does not dispel the need for Miranda warnings, but is simply one of the factors to consider as part of the totality of the circumstances to determine whether a reasonable person in the defendant's position would have considered himself or herself to be "in custody" given the degree of restraint. Applying these factors, the appellate court concluded that a reasonable person in the defendant's situation would have considered himself or herself to be "in custody."

    The state urged that in deciding whether a reasonable person in the defendant's position would believe himself or herself to be in custody, the court must define a "reasonable person" as an "innocent person." Although no Wisconsin court has specified that the reasonable person for Miranda analysis is the "reasonable innocent person," the appellate court viewed the addition of "innocent" as a clarification rather than a change in the "reasonable person" standard. The court looked to decisions from the Fifth Circuit that explain that "the reasonable person through whom we view the situation for Miranda purposes must be neutral to the environment and to the purposes of the investigation ... that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances" (¶ 23). Said the Wisconsin appellate court, "this is simply another way of saying that the standard is the objective one of the reasonable person, not the subjective one of the suspect in the particular case, who may assume he or she is being arrested because he or she knows there are grounds for an arrest" (¶ 23).

    In sum, the court concluded that the defendant was "in custody" for Miranda purposes when he was questioned by the officer and, therefore, Miranda warnings were required to safeguard his privilege against self-incrimination.

    Search and Seizure - Canine Sniffs - Probable Cause to Search Vehicles

    State v. Miller, 2002 WI App 150 (filed 2 May 2002) (ordered published 26 June 2002)

    After executing a search warrant at a residence and recovering marijuana therein, a police officer, accompanied by a dog trained in detecting the odor of contraband, walked around several cars that were parked on the street near the residence. (There was no argument that the scope of the search warrant included searching vehicles parked on the street in the area of the residence searched.) The dog alerted on the driver's side door of a car parked across the street from the residence referred to above. The car belonged to the defendant, who was a guest at the residence. The officer walked the dog around the same car again and the dog alerted a second time at the driver's side door. The door was unlocked, so the officer opened it and put the dog inside. After the dog alerted on a purse that was sitting on the driver's seat, the officer took the purse, opened it, and found marijuana inside. The defendant moved to suppress the evidence found in her car, arguing that police unlawfully searched the vehicle in violation of the federal and state constitutions. The circuit court denied the motion.

    In a decision authored by Judge Dykman, the court of appeals affirmed. The central dispute between the parties was whether the use of a drug-sniffing dog to detect the presence of marijuana inside the car violated the defendant's constitutional protection against unreasonable searches and seizures. The state did not argue that the police had probable cause or even reasonable suspicion to believe that they would find evidence of a crime inside the car before they conducted the dog sniff. Instead, the prosecution contended that the dog sniff was not a search. The appellate court concluded that, because controlling precedent from the U.S. Supreme Court does not classify canine sniffs as searches within the meaning of the Fourth Amendment, the officer was not required to have probable cause or reasonable suspicion before walking the dog around the defendant's vehicle for the purpose of detecting drugs in the vehicle's interior.

    With regard to the search of the vehicle without a warrant, the court began its analysis by noting that an automobile may be searched without a warrant if there is probable cause to believe that evidence of a crime will be found inside. Although Wisconsin courts have not previously addressed whether an alert from a drug-sniffing dog provides sufficient evidence of a crime to permit a vehicle search, the Wisconsin Supreme Court has held that a police officer's detection of the unmistakable odor of marijuana coming from an automobile provides probable cause to search that vehicle. Further, courts in other jurisdictions have uniformly held "that a trained narcotics-detecting dog's alert on an object provides probable cause to search that object, provided that the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband" (¶ 12). (In a footnote the court observed that this standard suggests that there may be a need to obtain additional evidence to support probable cause when the dog has not as yet established a reliable proven track record.)

    In this case, the officer testified that the dog had been trained in narcotics detection, that he had conducted more than 100 drug sniffs with the dog, and that he was familiar with how the dog would alert to him. He further testified that of the 40 times that the dog alerted on a vehicle, illegal substances or contraband were found 35 times. The court of appeals concluded that, under these facts, the officer had probable cause to search the vehicle. Although the dog did not have a 100 percent rate of accuracy, probable cause requires only that there be a "fair probability" that evidence of a crime will be found.

    Lastly, the court concluded that probable cause to search the vehicle also included probable cause to search the defendant's purse. See Wyoming v. Houghton, 526 U.S. 295 (1999) (holding that officers may search packages and containers in a vehicle without individualized suspicion for each object when probable cause exists to search the vehicle). Once the dog sniff indicated that the defendant's vehicle contained a controlled substance, said the court, the officer had probable cause to search both the car and the purse.

    Judge Dykman filed a separate concurrence.

    Successive Prosecutions - Statutory Double Jeopardy - Wis. Stat. Section 939.71

    State v. McKee, 2002 WI App 148 (filed 30 May 2002) (ordered published 26 June 2002)

    The defendant previously was convicted of aggravated battery and first-degree reckless injury for inflicting severe injuries during a physical assault. The victim remained in a coma and died four years later. The state then commenced a first-degree intentional homicide prosecution against the defendant.

    The defendant moved to bar the state from continuing the homicide prosecution, relying upon Wis. Stat. section 939.71. This statute provides that "if an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits of one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require." The circuit court denied the motion.

    In a decision authored by Judge Deininger, the court of appeals affirmed. Before reaching the section 939.71 issue, the court noted that the state had effectively conceded on appeal that the defendant could not have been convicted of both homicide and either of the other offenses in a single prosecution. This concession responded to the defendant's argument that aggravated battery and first-degree reckless injury are each lesser included offenses of first-degree intentional homicide. Given the concession, the appellate court assumed without deciding that each of the defendant's earlier convictions was for a crime that did not require proof of any fact in addition to those that must be proved for the crime of first-degree intentional homicide.

    The court also noted as a preliminary matter that the defendant did not claim that the homicide prosecution violates his constitutional right not to be put twice in jeopardy of punishment for the same offense. The U.S. Supreme Court decided long ago that the prohibition against double jeopardy does not bar a prosecution for murder when the victim of an "assault and battery" dies after the defendant has been convicted of the lesser offense. See Diaz v. United States, 223 U.S. 442 (1912). This "necessary facts" exception has continuing validity in constitutional double jeopardy analysis.

    Turning to the issue raised under section 939.71, the court concluded that the language of the statute is ambiguous because it does not plainly express the legislature's intent regarding the statute's application when facts necessary for the prosecution of a given crime do not come into existence until after a defendant has been convicted of another crime for the same act. The court concluded, based on legislative history, that the legislature intended to incorporate general principles of the law of double jeopardy as they existed when the statute was enacted in 1955. Those general principles included the "necessary facts" exception established in Diaz. The court concluded that there is no reason to read either section 939.71 or the lesser included crimes statute (section 939.66) as prohibiting a successive prosecution for a greater crime when a fact necessary for conviction on the greater crime does not come into existence until after a defendant has been convicted of a lesser crime based on the same act.

    In sum, the court was satisfied that there is no reason to not continue the homicide prosecution. Should the defendant be convicted of the homicide, both he and the state will have the opportunity to inform the trial court of the limitations, if any, they believe apply to the punishment that the court may then impose.

    Sentencing - Restitution Not Allowed for "Stop Sticks" Deployed to Apprehend Motorist

    State v. Storlie, 2002 WI App 163 (filed 29 May 2002) (ordered published 26 June 2002)

    The defendant was convicted of fleeing a police officer and operating a vehicle while under the influence of an intoxicant (fifth offense). He pleaded guilty to these charges. As part of the defendant's sentence, the court ordered him to pay restitution pursuant to Wis. Stat. section 973.20 to the police department in the amount of $123 to replace "stop sticks" that were deployed to halt his fleeing vehicle. The defendant appealed the restitution order.

    In a decision authored by Chief Judge Cane, the court of appeals reversed. It concluded that restitution allowed under section 973.20 does not include reimbursement for collateral expenses incurred in the normal course of law enforcement. As a normal cost of law enforcement, the expense of the stop sticks did not cause the police department to be a "victim" within the meaning of section 973.20 and thus entitled to restitution.

    Probation Searches - Decision to Conduct Probation Search Based in Part on Evidence Obtained by Police in Violation of Fourth Amendment

    State v. Wheat, 2002 WI App 153 (filed 15 May 2002) (ordered published 26 June 2002)

    Among the issues in this case was whether a reasonable probation search of the probationer's home is unlawful when the probation officer's decision to conduct the search is based, in part, on information supplied by the police department that the police obtained in violation of the probationer's Fourth Amendment rights. The claim in this case was that the decision to conduct a probation search was made after the probation officer was informed by the police regarding certain evidence obtained by the police during what was alleged to be an illegal pat down of the defendant.

    In a decision authored by Judge Snyder, the court of appeals noted that the defendant failed to provide any authority that holds that a reasonable probation search is unlawful when the probation officer relies, in part, on information furnished by the police that was obtained in violation of the defendant's Fourth Amendment rights. Such evidence is admissible at a probation revocation hearing and, said the court, "if evidence obtained in violation of the Fourth Amendment is admissible to determine whether probation should be revoked, it should also be acceptable to consider whether to conduct a probation search" (¶ 25). "We see little reason to distinguish between illegally obtained evidence leading to a ... revocation proceeding and illegally obtained evidence leading to a probation search" (¶ 26).

    State Crime Lab - Privilege

    State v. Franszczak, 2002 WI App 141 (filed 1 May 2002) (ordered published 26 June 2002)

    The defendant, a former police officer, was convicted of burglary and misconduct in public office for offenses committed while "on duty." Investigators had the defendant's uniform and shoes analyzed at the state crime laboratory, which found trace evidence that purportedly linked the defendant to the crime. A defense expert concluded, however, that the state crime lab's report was flawed by "contamination" that occurred before or during testing. The claimed error in this case occurred when the trial judge denied the defendant's request for a pretrial evidentiary hearing pursuant to Wis. Stat. section 165.79(1) at which he intended to question a state crime laboratory analyst about the possible contamination.

    The court of appeals, in a decision written by Judge Nettesheim, affirmed. Section 165.79(1) "works as follows. All evidence, information and analyses of evidence submitted to the crime lab by law enforcement is privileged and therefore is off limits to a defendant prior to trial. The same is true as to the analyses of such evidence by the crime lab. This privilege also bars any effort by a defendant to examine crime lab personnel as witnesses prior to trial. However, this privilege does not apply in two situations: (1) where the State has used the evidence at a preliminary hearing, and (2) where the evidence is otherwise subject to discovery or inspection pursuant to Wis. Stat. § 971.23" (¶4). (The privilege also applied to evidence submitted to the laboratory by defendants.)

    In this case the privilege remained intact. Since the crime lab's analysis was inculpatory, it was not subject to discovery under the "exculpatory evidence provisions" of section 971.23(1)(h) (¶¶20-21). "Moreover, the state's gratuitous disclosure of the crime lab report and tender of the evidence to (defendant) for his own testing rendered the application of Wis. Stat. § 165.79(1) moot." In short, he had a "full opportunity to explore any exculpatory aspect of it" (¶22). Finally, although the defendant's own expert "put an exculpatory spin on the evidence" by suggesting contamination, this did not breach the privilege (¶23).

    Substitutions - Joint Defendants

    State ex rel. Garibay v. Circuit Court for Kenosha County, 2002 WI App 164 (filed 22 May 2002) (ordered published 26 June 2002)

    The defendant was jointly charged with a codefendant who had not yet been apprehended. The defendant moved for a substitution of judge pursuant to Wis. Stat. section 971.20 (1999-2000). Since the absent codefendant had not, of course, joined in the substitution request, the circuit court denied the motion because section 971.20(6) requires that in actions "involving more than one defendant, the request for substitution shall be made jointly by all defendants."

    The court of appeals, in a decision written by Judge Nettesheim, denied the defendant's petition for a supervisory writ granting the substitution. The statute's clear and unambiguous language foreclosed the defendant's request even though he had "no control" over the codefendant's whereabouts. Acknowledging that it may not appear fair that such a defendant is effectively barred from substituting judges, the court said that the court's function is not to "rewrite statutes to avoid an unfair result, so long as the result is not unconstitutional" (¶11).

    Destroyed Evidence - Audiotapes

    State v. Parker, 2002 WI App 159 (filed 8 May 2002) (ordered published 26 June 2002)

    Parker was convicted by a jury of delivering marijuana. During postverdict proceedings, his appellate counsel learned that an audiotape of the drug buy had been destroyed. Neither the state nor the defense had introduced it at trial, although defense counsel had listened to the tape and, with Parker's consent, decided not to use it at trial.

    The court of appeals, in a decision written by Judge Snyder, affirmed Parker's conviction and rejected his contention that the destroyed audiotape entitled him to a new trial. Of primary interest, the court rejected the argument that State v. Perry, 136 Wis. 2d 92 (1987), controlled the analysis. Perry involved a destroyed trial transcript that implicated a defendant's right to a meaningful appeal; "Perry has never been extended to cover the destruction of or absence of items not a part of the trial court proceedings" (¶12). Applying conventional due process analysis governing the destruction of evidence, the court held that the destroyed audiotape constituted neither "apparently exculpatory" evidence (for example, trial counsel and the defendant agreed not to introduce it) nor "potentially exculpatory" evidence (there wasn't even a "hint" of bad faith on the state's part).

    Mistrials - Double Jeopardy

    State v. Seefeldt, 2002 WI App 149 (filed 22 May 2002) (ordered published 26 June 2002)

    The defendant was charged with possession of drugs with intent to deliver, carrying concealed weapons, and assorted offenses arising out of a high speed chase. At his first jury trial, which commenced on March 22, 1999, the defendant's trial counsel referred to evidence in violation of a pretrial order. The trial judge granted the prosecutor's motion for mistrial and disqualified the defendant's trial counsel. In March 2000 a second trial commenced and the defendant was found guilty.

    The court of appeals, in a decision written by Judge Brown, reversed. Jeopardy attached at the first trial when the jury was sworn. The constitutional right to be free from double jeopardy meant that a mistrial could be granted only because of a "manifest necessity." Assuming without deciding that the first lawyer "blatantly violated" a pretrial order, the first lawyer was subject to sanction. Nonetheless, it did not necessarily follow that a mistrial was warranted. Indeed, the court was satisfied that the attorney's remarks embraced information that "the defense was constitutionally entitled to present as evidence during the trial," contrary to the pretrial order. Thus, the state suffered no prejudice, the jury was not "incurably tainted," and the mistrial was not "manifestly necessary."

    Family Law

    Modification of Child Placement - No Presumption of Equal Placement

    Keller v. Keller, 2002 WI App 161 (filed 21 May 2002) (ordered published 26 June 2002)

    Wis. Stat. section 767.325(1)(b) provides that, after two years, a court may substantially change physical placement of a child if the modification is in the child's best interest and if there has been a substantial change of circumstances since the entry of the last placement order. Applying this statute, the circuit court modified the original physical placement schedule for the parties' minor child and granted to those parties equal placement. As characterized by the court of appeals, the trial court reached this conclusion after making statements demonstrating that the trial court believed that there is essentially a statutory presumption of equal placement.

    In a decision authored by Judge Hoover, the court of appeals reversed. It concluded that there had been a substantial change in circumstances that merited review of the placement of the parties' child. However, the trial court erroneously exercised its discretion by applying a presumption of equal placement that does not exist in the statutes.

    Under Wis. Stat. section 767.24(2)(am), there is a statutory presumption of joint legal custody. However, there is no provision establishing a presumption of joint placement. While the physical placement statute (section 767.24(4)(a)2.) requires the circuit court to provide for placement that allows the child to have regularly occurring, meaningful periods of physical placement with each parent, said the appellate court, "this is not tantamount to a presumption of equal placement" (¶ 1).

    Municipal Law

    Police and Fire Commission Disciplinary Hearings - Use of Hearing Examiners

    Conway v. Madison Board of Police and Fire Commissioners, 2002 WI App 135 (filed 9 May 2002) (ordered published 26 June 2002)

    Wis. Stat. section 62.13(1) and (2)(a) requires cities with a population over 4,000 to establish a board of police and fire commissioners. Section 62.13(5) specifies the procedures that must be followed in disciplinary actions against subordinates employed in the police and fire departments of those municipalities. The statute concludes with an explicit authorization for the police and fire commission to adopt additional rules for the administration of disciplinary proceedings.

    The Board of Police and Fire Commissioners of the city of Madison adopted a rule that permits hearing examiners, who are not necessarily members of the board, to conduct both initial and evidentiary hearings in police and fire disciplinary cases. Among other things, the hearing examiner must, after taking evidence in the case, prepare a comprehensive report for the police and fire commission, including an evaluation of witness credibility and demeanor and recommendations for disposition of the matter. The hearing conducted by the hearing examiner must be videotaped and a certified transcript prepared. After these materials are submitted, the board may require further proceedings before either the hearing examiner or the board itself. Ultimately, the board - not the hearing examiner - makes the final decision and determines the disposition of the disciplinary case.

    An employee of the Madison Fire Department challenged this rule allowing for the use of a hearing examiner, claiming that it exceeded the fire and police commission's authority under section 62.13(5). The circuit court agreed. In a decision authored by Judge Vergeront, the court of appeals reversed. The appellate court concluded that the board had the authority under section 62.13(5)(g) to adopt a rule permitting a hearing examiner to carry out the tasks described above, including conducting initial and evidentiary hearings and making a report to the board on the examiner's recommendations. In the opinion of the court of appeals, the rule "provides practices and rational techniques employed to aid the board (of police and fire commissioners) in fulfilling the objective of providing public (disciplinary) hearings as required by section 62.13(5)" (¶ 13).

    Zoning - Conditional Use Permits - Impact of Private Contracts Restricting the Use of Land

    Sills v. Walworth County Land Management Committee, 2002 WI App 111 (filed 3 April 2002) (ordered published 29 May 2002)

    The Black Point estate is a well-preserved, 13-bedroom Queen Anne style residence built in 1888 on Geneva Lake in Walworth County. The Walworth County Land Management Committee granted a conditional use permit (CUP) for creating and operating a public museum at Black Point. The grant of the CUP was challenged by a group of neighborhood citizens in certiorari proceedings in the circuit court. The circuit court upheld the granting of the permit.

    On appeal, the neighbors argued that the committee erred as a matter of law by failing to consider the potential application of restrictive covenants dating back to 1910 limiting the use of the Black Point property as "first class residence property." This presented an issue of first impression in Wisconsin and the court of appeals, in a decision authored by Judge Brown, adopted the view of other jurisdictions that private contracts restricting the use of land are not grounds for denying a CUP. While the committee may, in its discretion, consider the potential application of private agreements, it is not under an obligation to do so. "The rule which we recognize here, that a private restrictive covenant is not grounds for denial of a proposed use, does not mean that parties to the covenant are not without a remedy. When the terms of a zoning law conflict with those contained in restrictive covenants, the remedy for the breach is not through the zoning process but rather by an action for breach of covenant" (¶ 32).

    The neighbors also argued that the committee's decision was legally flawed because preservation or historic benefit is not a valid criterion for evaluating a CUP application. The appellate court held that promoting the general welfare, which is one of the stated purposes of the Walworth County Shoreland Zoning Ordinance, encompasses preserving historical sites. Accordingly, preservation is a valid criterion that the committee may use in evaluating a CUP application.

    Lastly, the neighbors argued that they should have been allowed to conduct additional discovery to supplement the certiorari record for the purpose of uncovering bias in the proceedings before the committee. The ordinary rule in common law certiorari is that the circuit court does not take evidence on the merits of the case and the scope of review is limited to the record presented to the tribunal whose decision is under review. However, the appellate court held that "when an applicant makes a prima facie showing of bias in a zoning case, certiorari law allows expansion of the record in order to protect the applicant's right to procedural due process" (¶ 3). However, in this case, the court concluded that the neighbors failed to make such a prima facie showing of bias that would justify additional discovery.


    Verdicts - Sufficiency - Experts

    Anderson v. Combustion Engineering Inc., 2002 WI App 143 (filed 21 May 2002) (ordered published 26 June 2002)

    A jury found the defendant 29 percent responsible for the lung cancer that killed the plaintiff's deceased. The defendant had manufactured the boilers used in the plant where the deceased worked.

    The court of appeals, in a decision written by Judge Fine, affirmed. The defense claimed that there was insufficient expert evidence linking the asbestos in the boilers to the deceased's cancer. Under Wisconsin law, however, the scope of appellate review is limited and juries are "entitled to draw reasonable inferences from expert testimony even if, at first blush, it may appear that the jury's conclusions based on those inferences require proof by specialized expert testimony" (¶4).

    The court contrasted Wisconsin's approach toward expert testimony with the purportedly more rigorous reliability-related analysis required in federal courts. The record supported the reasonable inferences found by the jury, in particular the defendant's contention that the deceased's "exposure to its asbestos was too low to cause his cancer" (¶9). It also rejected the defendant's assertion that the plaintiff was obligated to present some sort of "daily log of activities and (asbestos-related) exposures" (¶11). Finally, the defense supplied "nothing other than rhetoric to supports its argument" that the jury erroneously assessed its liability at 29 percent.

    Medical Malpractice - Informed Consent

    Montalvo v. Borkovec, 2002 WI App 147 (filed 29 May 2002) (ordered published 26 June 2002)

    When the plaintiff experienced labor symptoms six months into her pregnancy, she went to the hospital where doctors, unable to interrupt her labor, delivered by cesarean section a baby that weighed only 679 grams. The baby immediately was "handed off" to a neonatologist who "successfully performed life-saving resuscitation measures." The parents later filed suit against the doctors and the hospital, alleging, in essence, that because the physicians failed to advise the parents of "the risks and potential consequences of a child born at 23 or 24 weeks gestation and/or with a birth weight of less than 750 grams," they had violated the parents' rights. The circuit court dismissed the complaint.

    The court of appeals, in a decision written by Judge Wedemeyer, affirmed in an opinion that primarily addresses the informed consent statute, Wis. Stat. section 448.30. First, a physician is obligated to provide information "about available and viable options of treatment" (¶13). This necessarily implies that "informed consent comes into play only when there is a need to make a choice of available, viable options" (¶15). In this case there were no such options. "[I]n Wisconsin, in the absence of a persistent vegetative state, the right of a parent to withhold life-sustaining treatment from a child does not exist," and it was undisputed that the child was not in such a vegetative state (¶17).

    Second, the federal Child Abuse Protection and Treatment Act (CAPTA) forbade the withholding of medically indicated treatment from a disabled infant with a life-threatening condition." Finally, section 448.30(5) "renders unnecessary the disclosure of information in emergencies where failure to provide treatment would be more harmful to the patient than treatment" (¶21). The opinion closes with a discussion of the public policies that supported the court's legal analysis.

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