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  • Wisconsin Lawyer
    May 11, 2010

    Court of Appeals Digest

    Wisconsin Lawyer
    Vol. 75, No. 3, March 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

    * *


    Sanctions Altering Exhibits Appellate Review

    Teubel v. Prime Development Inc., 2002 WI App 26 (filed 7 Nov. 2001) (ordered published 30 Jan. 2002)

    Teubel filed suit against the defendant real estate developer, alleging various misrepresentations about a promised golf course that never materialized. Teubel hired Rooney as a real estate expert to prepare an appraisal of Teubel's condominium that compared the property's value with and without the adjacent golf course. On the first day of trial, Rooney's report was marked as Exhibit 21. At the end of the day, Teubel's attorney agreed to permit defense counsel to photocopy Exhibit 21. When trial commenced the next day, defense counsel marked his copy as Exhibit 24 and cross-examined Rooney, the expert. It soon became apparent that there were discrepancies between Exhibit 21 and Exhibit 24; specifically, several redactions had been made in Exhibit 21. Teubel's attorney asserted that he had made the redactions before trial and thus prior to that document being marked as Exhibit 21. Defense counsel asserted that no such redactions appeared on Exhibit 21. The trial court declared a mistrial, conducted various hearings into the matter, and eventually found that Teubel's attorney had engaged in "profound and egregious misconduct." The judge dismissed the complaint and awarded attorney fees to the defendant in the amount of $11,600.

    The court of appeals, in an opinion written by Judge Anderson affirmed. First, the court rejected Teubel's contention that the proceedings were "tainted" because the circuit court had conducted off-the-record experiments and received ex parte communications from the defendant. Although noting the impropriety of such alleged behavior, any error was harmless because it had not affected the findings of fact or determination of sanctions. Second, the trial court did not abuse its discretion when it refused to consider affidavits filed in support of Teubel's motions to reconsider and for relief under Wis. Stat. section 806.07(1)(h). The trial judge properly determined that the matters asserted in the affidavits should have been brought forward earlier. Third, sufficient evidence supported the sanctions. Much of the record consisted of "opposing attorneys pointing fingers at each other" (¶20). The trial judge was in the best position to weigh credibility and draw inferences. His conclusion that Teubel's attorney violated his duty of candor toward the tribunal, SCR 20:3.3, was not clearly erroneous. Finally, the trial judge acted within his discretion in concluding that such behavior was "egregious" and merited the dismissal of the plaintiff's claim, together with the imposition of attorney fees.

    Criminal Law

    Kidnapping Meaning of "Confinement" Habitual Criminality Challenging Prior Out-of-state Conviction

    State v. Burroughs, 2002 WI App 18 (filed 19 Dec.2001) (ordered published 30 Jan. 2002)

    The defendant was convicted of kidnapping and attempted first-degree sexual assault. The theory of the kidnapping prosecution was that, by force or threat of imminent force, the defendant "confined" the victim without her consent and with intent to cause her to be held to service against her will. See Wis. Stat. § 940.31(1)(b). Among the issues on appeal was the meaning of the term "confine" as it is used in the kidnapping statute. Neither the statute, the pertinent Wisconsin jury instruction, nor any reported Wisconsin decision has defined the term in the kidnapping context.

    In a decision authored by Judge Nettesheim, the court of appeals concluded that the definition of "confine" as used in the false imprisonment statute also should apply in the kidnapping context. Courts have held that false imprisonment, or confinement, is the intentional, unlawful, and unconsented constraint by one person of the physical liberty of another. Further, the standard jury instruction for false imprisonment provides that "if the defendant deprived [the victim] of freedom of movement, or compelled him to remain where he did not wish to remain, then [the victim] was confined or restrained." See Wis JI-Criminal 1275.

    Another issue on appeal in this case involved the circuit court finding that the defendant qualified for habitual criminality treatment because of a prior conviction in Alabama. The defendant contended that the record did not contain sufficient proof that his guilty plea in the Alabama prosecution was knowing, intelligent, and voluntary.

    The court of appeals concluded that the supreme court's decision in State v. Hahn, 2000 WI 118, controls the resolution of this issue. Like the defendant in this case, Hahn argued that the U.S. Constitution requires that an offender be permitted to challenge the prior conviction as unconstitutional on grounds that it was based on a guilty plea that was not knowing, intelligent, and voluntary. The Hahn court concluded that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction.

    In this case, the pertinent court documents from Alabama indicate that the defendant appeared before the court and entered a guilty plea while represented by counsel. Given that the defendant did not contest this fact either on appeal or before the trial court, the court of appeals concluded that the trial judge properly relied on the Alabama conviction in sentencing the defendant under the habitual offender law.

    Felon in Possession of Firearm Determining Whether Prior Out-of-state Conviction Would Be a Felony Under Wisconsin Law

    State v. Campbell, 2002 WI App 20 (filed 20 Dec. 2001) (ordered published 30 Jan. 2002)

    The defendant was convicted of being a felon in possession of a firearm. The prior felony that qualified him for treatment under this statute was a forgery conviction in Ohio. Under Wisconsin law a person is prohibited from possessing a firearm if he or she was "convicted of a crime elsewhere that would be a felony if committed in this state." See Wis. Stat. § 941.29(1)(b).

    The defendant argued that his conviction under Ohio law would not be sufficient to prove a felony in Wisconsin because, under Ohio law, it is a felony to forge any writing whereas, in Wisconsin, forgery is limited to specific types of writings. The Ohio forgery involved a check and the circuit court in Wisconsin considered that conduct when determining that the defendant was convicted of a crime in Ohio that would be a felony if committed in Wisconsin.

    In a decision authored by Judge Dykman, the court of appeals affirmed. It agreed with the defendant that the Ohio forgery statute is broader than Wisconsin's and that looking solely at the Ohio statute's language would be insufficient to determine whether a violator thereof would have committed a felony in Wisconsin had his or her conduct occurred here. However, the appellate court concluded that the circuit judge was entitled to look at the conduct underlying the Ohio conviction. That conduct was forging a check, which is a felony in Wisconsin. Accordingly, the Wisconsin court properly found that the defendant is a convicted felon who may not possess a firearm.

    Drug Convictions Mandatory Suspension of the Operating Privilege

    State v. Herman, 2002 WI App 28 (filed 18 Dec. 2001) (ordered published 30 Jan. 2002)

    Wis. Stat. section 961.50 provides that, if a person is convicted of violating the controlled substances statutes, "the court shall, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege ... for not less than 6 months nor more than 5 years." The question before the court of appeals in this case was whether this statute prescribes a "minimum sentence" as that term is used in Wis. Stat. section 961.438. The latter statute provides that minimum sentences for violations of the controlled substances statutes are presumptive, rather than mandatory.

    In a decision authored by Chief Judge Cane, the court of appeals concluded that the suspension of the operating privilege imposed pursuant to section 961.50 is not a "minimum sentence" as that term is used in section 961.438. Rather, it is a mandatory penalty that "the circuit court has no discretion to disregard" (¶ 24)

    Criminal Procedure

    Truth-in-sentencing Application of Penalty Enhancement Statutes

    State v. Jones, 2002 WI App 29 (filed 11 Dec. 2001) (ordered published 30 Jan. 2002)

    The defendant was convicted of possession of a firearm by a felon. This is a Class E felony for which he faced imprisonment for not more than five years and/or a fine not to exceed $10,000. Because the state established that the defendant was a habitual offender by virtue of a prior felony conviction, the maximum imprisonment prescribed for the new felony could be increased by not more than six years. See Wis. Stat. § 939.62(1)(b).

    The defendant was subject to sentencing under Wisconsin's new truth-in-sentencing laws. Applying those laws the trial court bifurcated his sentence into confinement and extended supervision components. For his new Class E felony, the defendant faced a maximum of two years in confinement and, if that maximum were imposed, it could be followed by a maximum of three years of extended supervision for an overall term of imprisonment of five years. The judge imposed these maximum penalties and then increased them by adding three years to the maximum term of confinement and two years to the maximum period of extended supervision because the defendant was a habitual offender.

    The defendant appealed, arguing that Wis. Stat. section 973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. Instead, any penalty enhancement, according to the defendant, can only be applied to the term of confinement in prison.

    In a decision authored by Judge Curley, the court of appeals agreed with the defendant's position. The statute cited above provides that "the maximum term of confinement in prison may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison is increased under this [statute], the total length of the bifurcated sentence that may be imposed is increased by the same amount."

    The court of appeals concluded that the statute's plain language does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. Rather, any increase attributable to the enhancer may be applied only to increase the maximum term of confinement in prison. When this occurs, the overall length of the bifurcated sentence naturally will be increased by the same amount.

    Search Warrant for Drugs Frisk of Person Arriving at Target Premises During Execution of Search Warrant

    State v. Kolp, 2002 WI App 17 (filed 27 Dec. 2001) (ordered published 30 Jan. 2002)

    Police obtained a search warrant for a private residence. In addition to authorizing the search of all persons present on the premises, the warrant also authorized the search for specific items including marijuana, scales, plastic baggies, drug paraphernalia, weapons, beepers, and money.

    While executing the warrant, a detective heard someone knocking on the back door. When he went to the back of the house, he observed the defendant who at that point had crossed an enclosed porch and was standing at the inner back door. The detective escorted the defendant into the kitchen and patted him down for the officer's safety. During the pat down the officer felt two objects that he thought were consistent with packages containing drugs. The officer seized the contents of the packages, which later tested positive for marijuana. The defendant's motion to suppress the drugs found on his person was denied by the circuit court.

    In a decision authored by Judge Curley, the court of appeals affirmed. The court began its analysis by noting that pat-down searches are justified when an officer has reasonable suspicion that a suspect may be armed. In this case the police were conducting a search for drugs. The execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence. See State v. Guy, 172 Wis. 2d 86, 492 N.W.2d 311 (1992).

    The officer who searched the defendant had 12 years of experience and testified that he had executed more than 100 search warrants per year for the last three years. He also testified that he has executed search warrants where weapons were found and volunteered that, in his opinion, people involved in drugs often carry weapons. Accordingly, it is common for him to search everyone present at a residence for weapons when carrying out a search warrant for drugs. Given this information and the officer's experience, the appellate court concluded that the officer had a reasonable suspicion that a party knocking on the door of a house being searched for drugs could be carrying a weapon.

    The defendant also argued that because the warrant authorized a search for evidence of the crime of possession of marijuana rather than possession with intent to deliver, no large amounts of drugs were suspected and no drug trafficking was indicated. However, the appellate court declined to distinguish between major and insignificant drug dealers or users in determining whether a frisk is reasonable. See ¶ 10.

    Statute of Limitations Methods of "Commencing" a Prosecution for Purposes of the Statute of Limitations

    State v. Jennings, 2002 WI App 16 (filed 18 Dec. 2001) (ordered published 30 Jan. 2002)

    M.K. was sexually assaulted on Dec. 5, 1992. A DNA sample was taken from the defendant in 1997 and, on Dec. 1, 1998, a forensic scientist determined that the DNA sample given by the defendant matched evidence from a vaginal swab obtained from the victim on the date of the assault. On Dec. 4, 1998, the district attorney issued a criminal complaint charging the defendant with sexual assault and obtained a court order to produce the defendant from a state prison where he was serving a sentence for an unrelated crime. The order required the defendant's release to the custody of the sheriff for transportation to and attendance at an initial appearance in court.

    The initial appearance was made on Dec. 6, 1998. The defendant waived his preliminary examination and, on Dec. 14, 1998, the district attorney filed a criminal information alleging one count of second-degree sexual assault.

    The defendant moved to dismiss the charge, based on the expiration of the six-year statute of limitations. The circuit court denied the motion. In an opinion authored by Judge Wedemeyer, the court of appeals reversed.

    In Wisconsin prosecution for a felony must ordinarily be "commenced" within six years. Within the meaning of the controlling statute, a prosecution has "commenced" when a warrant or summons is issued, an indictment is found, or an information is filed. See Wis. Stat. § 939.74(1).

    The appellate court concluded that the statute cited above is quite precise as to which documents must be issued, found, or filed to commence a felony prosecution: a warrant, summons, indictment, or information. No mention is made of a complaint or an order to produce. An order to produce can be used in many contexts for many purposes, both civil and criminal, and "it does not reasonably follow that it is the equivalent of an arrest warrant or, for that matter, a summons" (¶ 20). The state knew where the defendant was housed. It could have quite readily complied with the requirements of section 939.74 by issuing a summons or a warrant, with the order to produce.

    For these reasons the court of appeals concluded that the criminal action against the defendant was not timely commenced and therefore the trial court did not attain personal jurisdiction over the defendant.

    Probation Revocation No Sentence Credit for Time Spent on Electronic Monitoring as a Condition of Probation

    State ex rel. Simpson v. Schwarz, 2002 WI App 7 (filed 20 Dec.r 2001) (ordered published 30 Jan. 2002)

    After being convicted of second-degree sexual assault, the defendant was given a 15-year prison sentence. The court stayed the sentence and placed the defendant on probation for five years. As a condition of probation, the court required the defendant to serve one year at the House of Correction. The first four months were to be actually served at the House and the remaining eight months were to be spent on electronic monitoring.

    The defendant's probation subsequently was revoked and the question on appeal was whether he was entitled to sentence credit for the time he spent on electronic monitoring. In a decision authored by Judge Dykman, the court of appeals concluded that the defendant was not entitled to sentence credit for time spent on electronic monitoring as a court-ordered condition of probation.

    Wis. Stat. section 973.155(1)(a) provides that a convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. The supreme court has held that for sentence credit purposes an offender's status constitutes "custody" whenever the offender is subject to an escape charge for leaving that status. See State v. Magnuson, 2000 WI 19. After examining a variety of escape statutes, the court concluded that none of them apply to an offender placed on electronic monitoring by the circuit court. Accordingly, the defendant was not entitled to sentence credit for the time he spent on probation in an electronic monitoring status.

    Other Acts Stipulations Waivers Intoxication Polygraph Evidence

    State v. Frank, 2002 WI App 31 (filed 11 Dec. 2001) (ordered published 30 Jan. 2002)

    Frank was convicted for having sexual contact with a 13-year-old child. The court of appeals, in an opinion written by Judge Hoover, affirmed. The primary issue concerned the admissibility of other act evidence proffered by the state. After the trial judge ruled that the evidence was admissible, Frank entered into a Wallerman stipulation and conceded intent and motive.

    The court held that by entering into the Wallerman stipulation, Frank waived his right to appeal the trial judge's ruling on other act evidence. Prejudicial error, said the court, does not arise unless the evidence actually is introduced at trial. By stipulating to intent and motive, Franks foreclosed the state from using the other act evidence and hence no prejudice arose from it. The court also rejected Franks' related argument that the Wallerman doctrine "forces" defense counsel to stipulate when confronted by other act evidence or be found ineffective (¶7). Quite bluntly, Franks had a choice to stipulate, thus precluding the state's use of the evidence and "forfeiting" his right to appellate review, or "decline" to stipulate, thus inviting the state to use the evidence yet preserving the issue for appeal (¶14).

    Franks also argued that the trial court's ruling forced him to "give up his right to present a defense on the issue of intent and purpose." The court observed, however, that Franks "gave up nothing" because he testified that he did not touch the victim. Similarly, his claim that he would have raised an "intoxication" defense was not supported by the record, which yielded no basis for a viable defense (Franks testified that he had a clear recollection of what occurred that day).

    Finally, Franks claimed that inadmissible evidence of his "polygraph examination" was disclosed to the jury when a polygraphist testified about what Franks said during the session. The record disclosed, however, that the polygraphist was identified only as an "expert forensic interviewer" and the word "polygraph" was never mentioned during his testimony.

    Probation Revocation Sentencing

    State v. Reynolds, 2002 WI App 15 (filed 4 Dec. 2002) (ordered published 30 Jan. 2002)

    Defendant was convicted of sexual assault and placed on probation. He was sentenced after revocation by a judge who had not presided over the trial and who had allegedly erred by imposing a 10-year prison sentence based on his review of the trial proceedings, including the original sentencing.

    The court of appeals, in an opinion written by Judge Schudson, reversed. It held that "because the sentencing-after-revocation record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in deciding that [defendant's] case was an exceptional one justifying the withholding of sentence, resentencing is appropriate."

    Judge Fine concurred and wrote separately in order to "decry" the "unfairness of a system of justice that is essentially random." As solutions, he urged the elimination of "plea bargaining" and the adoption of "some system that will result in similar sentences for defendants with similar levels of culpability and recidivism potential" (¶24).

    Family Law

    Divorce Property Division Increase in Value of Real Estate Gifted to One of the Spouses

    Richmond v. Richmond, 2002 WI App 25 (filed 28 Dec. 2001) (ordered published Jan. 2002)

    The parties were married in 1982 and thereafter moved to a dairy farm owned by the husband's parents. The parents gifted the farm to the husband in 1995. The husband filed for divorce in 1998 and the trial court granted the petition for divorce in 2000.

    During the 2000 trial on the issues of property division, maintenance, and child support, the court found that the value of the farm was $165,600 at the time of the gift in 1995 and that it had appreciated to a value of $329,000 in 1999. The circuit judge considered contributions made by the wife and husband throughout their 16-year marriage and determined that the increase in value of the property was due to the "efforts and abilities of this marital partnership and not solely to inflation and market forces" (¶ 4). The court included the full $163,400 appreciation as a marital asset to be divided.

    The court of appeals, in a decision authored by Judge Hoover, reversed. It concluded that, while the trial court considered the proper legal standards for determining whether to include the appreciation in value of gifted property in the marital estate, it erroneously exercised its discretion when it considered only contributions to the marriage as a whole and failed to determine whether the wife's or husband's contributions to the marital partnership between 1995 and 1999 were in fact a catalyst for the rapid increase in the farm's value. Merely maintaining the marital relationship and performing the customary obligations of one spouse to the other does not constitute a contribution of the nonowning spouse that requires the appreciation in value of separately owned property to be treated as part of the marital estate. "The contributions must be related to the increase in value in order for the appreciation to become part of the marital estate and divisible at divorce" (¶ 8).

    Accordingly, the appellate court remanded the case for the trial court to clarify whether efforts by the wife and husband throughout the marriage were in fact a catalyst for the rapid appreciation of the farm's value from 1995 through 1999, or whether the rapid increase in value was due to market forces.


    Motorist Coverage Occurrences Reducing Clause

    Severude v. American Family Mutual Ins. Co., 2002 WI App 33 (filed 28 Dec. 2001) (ordered published 30 Jan. 2002)

    Severude had two daughters, Sonya and Alyssa. In 1997 Severude gave permission to Sonya, who had a valid license, to drive Alyssa to the cemetery and visit their father's grave. On the way, Sonya picked up a friend, Andy, and allowed him to drive even though he had no license. Andy lost control of the car and killed Alyssa.

    Severude's policy contained a bodily injury liability limit of $100,000 per person, per occurrence. It also provided uninsured motorist (UM) coverage of $100,000/$300,000. American Family paid $100,000 to Severude based on Andy's negligent operation of the car and Alyssa's death. Severude later filed this wrongful death action seeking another $100,000 based on Sonya's negligent entrustment of the car to Andy. The circuit court granted summary judgment dismissing the complaint.

    The court of appeals, in an opinion written by Judge Cane, affirmed. Severude argued that there were two separate occurrences under the policy: Andy's negligent operation, and Sonya's negligent entrustment. Rejecting this argument, the court refused to find a separate occurrence in each negligent act that may lead to a car accident (¶15). In particular, Alyssa was injured when Andy lost control of the car, not when Sonya permitted him to drive.

    The reducing clause also precluded payment of additional UM monies. The clause provided that "Any amount payable under this coverage to or for an injured person will be reduced by any payment made to that person under the [UM] coverage of this policy." Severude did not argue that the clause rendered the coverage "illusory." Rather, her claim was based on case law that was distinguishable because it involved active negligence by both the named insured and an additional insured. In this case, there was only one negligent insured or additional insured: her daughter Sonya.

    Uninsured Motorist Coverage Antistacking Clause

    Schroeder v. State Farm Mutual Ins. Co., 2002 WI App 11 (filed 27 Dec. 2001) (ordered published 30 Jan. 2002)

    Schroeder and his ex-wife, Linda, both held automobile insurance policies issued by State Farm. Both policies carried uninsured motorist (UM) coverage along with an "antistacking" clause. In 1996 their daughter was killed in a car accident involving an uninsured motorist. State Farm paid Schroeder and Linda $50,000, the UM limits, under Linda's policy but refused to pay an additional $50,000 under Schroeder's because of the antistacking clause. It was undisputed that their daughter was a "person covered" as an "insured" under each policy. The circuit court ruled that the clause was ambiguous and did not preclude the second payment.

    The court of appeals, in an opinion written by Judge Schudson, reversed. First, Schroeder argued that the antistacking clause, particularly the phrase, "similar coverage applying to other motor vehicles," was ambiguous or not applicable in this situation. The court observed, however, that because the clause begins with "the all-encompassing introducing words `Regardless of the number of policies involved, ...' State Farm did everything semantically possible to extend its antistacking endorsement to any other policy providing coverage" (¶9). Moreover, the antistacking clause was identical to one upheld in Estate of Dorschner v. State Farm Mut., 2001 WI App 117, review denied, 2001 WI 114. Second, the court also rejected Schroeder's argument that the antistacking clause was unconstitutional. The proffered arguments had been rejected by Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73.

    Juvenile Law

    Delinquency Sexual Immaturity Preadolescents

    State v. Stephen T., 2002 WI App 3 (filed 5 Dec. 2001) (ordered published 30 Jan. 2002)

    Stephen T., age 10, was adjudicated a delinquent based upon a finding that he had sexual contact with two younger girls, age 6 and age 7, in separate incidents. One charge involved a "game" of "truth or dare." The other involved a game of "capture the flag." With respect to the latter charge, the judge found that Stephen's sexual gratification was the only "logical reason" that explained why he would touch the victim's breast (¶4).

    The court of appeals, in an opinion written by Judge Brown, reversed the count involving the game of "capture the flag." (The other charge was not subject to an appeal.) "The crux of this case [was] whether the trial court erred as a matter of law by excluding expert testimony and other evidentiary submissions regarding Stephen's psychosexual maturity as irrelevant to the specific intent element of the charge of sexual assault" (¶12). The state was entitled to rely on circumstantial inferences based on Stephen's conduct, such as his experience watching the Playboy channel. The inference of intent was entirely reasonable on this record. Moreover, the state is not required to prove a defendant's sexual maturity (¶16). Nonetheless, the court of appeals rejected the line of reasoning employed by the state and the trial court.

    The law does not "criminalize" sexual contact between children "on the basis that they are `sexual beings' capable of seeking out sexual gratification." Nor is "goofy child's play" or "exploration" within the parameters of first-degree sexual assault." Rather, "the law `criminalizes' a child's sexual contact with another child only when the perpetrator possesses the intent to become sexually aroused in a manner that is inconsistent with childhood behavior" (¶20, emphasis added). Thus, the defense's proffer of expert testimony and other evidence bearing on Stephen's sexual maturity was highly relevant and the trial court abused its discretion by excluding it. The court also decided not to remand the case for a new trial because Stephen had served the one-year disposition ordered by the trial court and complied with all other conditions. It did order the dismissal of Stephen's adjudication of delinquency and the destruction of his DNA samples and records.

    Motor Vehicle Law

    OWI Blood Draw by Physician in Police Booking Room

    State v. Daggett, 2002 WI App 32 (filed 11 Dec. 2001) (ordered published 30 Jan. 2002)

    After the defendant was arrested for OWI, he was asked to submit to a test to determine the amount of alcohol in his blood. He refused. Nevertheless, his blood was withdrawn without a warrant in the booking room at the local jail by a physician while two officers restrained the defendant.

    The defendant moved to suppress the results of the blood test (0.336 percent) on grounds that the blood draw was unlawful because it took place in the county jail booking room, rather than in a hospital. The circuit court granted the defendant's motion and this appeal followed.

    In a decision authored by Chief Judge Cane, the court of appeals reversed. The court concluded that the method used to take the blood sample was a reasonable one and was performed in a reasonable manner. The court rejected the defendant's claim that blood draws must take place in a hospital setting in order to be constitutionally reasonable. A blood draw can in some circumstances be reasonable when conducted in a nonmedical setting provided the setting does not pose a "personal risk of infection and pain." There was no evidence of the latter in this case.

    The procedure was performed by a physician who used a blood test kit provided by the State Laboratory of Hygiene. There was no evidence that the doctor determined that the blood draw could not be performed consistent with medically accepted procedures nor was there any evidence in the record to suggest that the jail booking room, although not a sterile environment, presented any danger to the defendant's health.


    Wisconsin Income Tax Inclusion of Interest Not Included in Federal Adjusted Gross Income

    Borge v. Wisconsin Tax Appeals Commission, 2002 WI App 14 (filed 28 Dec. 2001) (ordered published 30 Jan. 2002)

    The petitioners held shares in mutual funds that invest in certain state and local bonds. The mutual funds receive interest payments on the bonds from the obligors, subtract expenses and management fees, and then distribute the remaining interest payments to the fund shareholders. These distributions from the state and local bond funds are tax-exempt for purposes of federal income tax. The issue before the appellate court was whether these distributions are subject to the Wisconsin income tax.

    Pursuant to 26 U.S.C. section 852(b)(5), the distributions at issue in this case are "exempt-interest dividends" and shareholders are to treat them as "an item of interest excludable from gross income" for purposes of federal taxation. However, Wisconsin law unambiguously requires state tax payers to include in Wisconsin adjusted gross income (with a few exceptions not relevant here) all types of interest excluded for federal purposes. See Wis. Stat. § 71.05(6)(a)1. Accordingly, the distributions to the petitioners are subject to state income taxation.


    Liability Municipalities Highway Contractors

    VanCleve v. City of Marinette, 2002 WI App 10 (filed 18 Dec. 2001) (ordered published 30 Jan. 2002)

    Plaintiff tripped and fell over a recently constructed curb and gutter. She sued the city and its contractor, alleging negligence in the construction and maintenance of the curb and gutter. As part of its defense, the city asserted Wis. Stat. section 81.17, which provides conditional protection for municipalities in such cases. In essence, in cases where both the municipality and the contractor are liable, the contractor must pay the entire award. A municipality must pay only where the contractor is "unable to pay."

    Before trial, the plaintiff and contractor entered into a Pierringer release that dismissed the contractor from the lawsuit and "settled" the city's cross-claim. A jury apportioned causal negligence as follows: the city, 90 percent; the contractor, 9 percent; and plaintiff, 1 percent. The city then moved to dismiss plaintiff's claim based on the argument that section 81.17 precluded recovery against the municipality. It contended, in essence, that the plaintiff must first attempt to execute a judgment against the contractor, a procedure obviously precluded by the Pierringer release. The trial court ruled that section 81.17 did not apply because of the Pierringer release and the city's stipulation.

    The court of appeals, in an opinion written by Judge Peterson, reversed. The city argued that it had not waived its affirmative defense under section 81.17 by not objecting to the Pierringer release for dismissing its own cross-claim. First, the court was satisfied that the statute unambiguously imposes primary liability on a contractor and secondary liability on the municipality. In short, "a person who has any liability is liable for the entire judgment." Plaintiff's argument that the city had primary liability for its 90 percent and secondary liability only for the contractor's 9 percent was wholly unsupported by authority.

    Second, the city could not have kept the contractor in the lawsuit by objecting to the Pierringer release (¶28). As direct adversaries, the plaintiff and the contractor could settle on their own terms, which "effectively dismissed" the city's cross-claims against the contractor as well. Nor did it matter that the city had "stipulated" to dismiss the cross-claim. The cross-claim for contribution and the affirmative defense alleging section 81.17 were "two distinct parts of the pleadings" (¶35). No authority was cited in support of the waiver argument (indeed, the "language dismissing the City's cross-claim in the stipulation and order was unnecessary" because "the City effectively lost is cross-claim for contribution when [plaintiff] signed the Pierringer release").

    Finally, the court rejected policy-based arguments to the effect that this holding "stifles" personal injury settlements. Any problems, said the court, are with the statute.

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