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    Supreme Court Digest

    Daniel Blinka and Thomas Hammer

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    Wisconsin Lawyer
    Vol. 75, No. 6, June 2002

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    * *


    Filed Rate Doctrine - Dairy Farmers

    Servais v.Kraft Foods Inc., 2002 WI 42 (filed 30 April 2002)

    In a per curiam decision, the supreme court announced that it was divided equally on the question of whether the court of appeals should be affirmed. (Justice Wilcox did not participate.) The case concerned the "filed rate" doctrine's application in a state antitrust action brought by dairy farmers. For this reason, the decision of the court of appeals at 2001 WI App 165, 246 Wis.2d 920, 631 N.W.2d 629 is affirmed.

    Civil Procedure

    Claim Preclusion - Identity of Parties

    Pasko v. City of Milwaukee, 2002 WI 33 (filed 24 April 2002)

    In 1993 Robert Pasko and 22 other city of Milwaukee police officers commenced an action against the city of Milwaukee, its police department, and its police chief. They alleged that, from 1984 to 1995, they worked regularly as police alarm operators under a system known as "underfilling," which entailed assigning lower ranking personnel to carry out duties of higher ranking personnel rather than filling vacancies at those higher positions by promotion. Despite working at the police alarm operator rank, for which higher pay was established in the collective bargaining agreement, the officers failed to receive that higher pay. Instead, they were compensated at the lower rate applicable to ordinary police officers.

    The complaint alleged several causes of action, including: 1) breach of contract for failure to pay at the higher rate provided for in the collective bargaining agreement; and 2) a violation of Wis. Stat. section 62.50(9). This statute, which is applicable to cities of the first class, contains various provisions for filling vacancies in the Milwaukee Police and Fire departments.

    The circuit court granted summary judgment in favor of the defendants on all claims except the breach of contract claim. On the latter, the court granted summary judgment to the officers, concluding that the defendants' failure to pay the officers the rate due police alarm operators constituted a breach of the terms of the collective bargaining agreement. The circuit court ordered the award of back pay to the officers. On appeal, the court of appeals affirmed.

    Subsequently, the same officers from the litigation described above (Pasko I) and the Milwaukee Police Association (MPA) filed another action in circuit court against the city (Pasko II). The MPA is the certified collective bargaining unit for all city of Milwaukee police officers in nonsupervisory ranks. In their complaint the officers and the MPA alleged that vacancies remained at the rank of police alarm operator and sought mandamus to compel the city to fill these vacancies pursuant to section 62.50(9). In their answer the defendants sought dismissal by invoking the doctrine of claim preclusion. On summary judgment the circuit court ruled that the officers and the MPA were both barred from proceeding because of claim preclusion. It held that the officers were clearly barred because they were the same plaintiffs as in the first lawsuit. With respect to the MPA, the court held that, even though the union was not a party in the first action, it still was barred from proceeding because it was the collective bargaining agent that negotiated the contract that was at the heart of both cases.

    The court of appeals reversed. It concluded that the MPA's action against the city was not barred by the doctrine of claim preclusion. [The appellate court only addressed the MPA's claims because the individual officers conceded that claim preclusion applied to them and barred their claims in Pasko II.] The court of appeals further held that the MPA was entitled to a writ compelling the city to fill the vacancies in the rank of police alarm operator with qualified officers.

    In a unanimous decision authored by Justice Bablitch, the supreme court reversed the court of appeals. It agreed that the MPA is not barred by the doctrine of claim preclusion from bringing its writ of mandamus action. Resolution of this issue turns on whether there was an identity between the parties or their privies in the first and second lawsuits. In Pasko I, the officers brought an action to obtain relief for themselves because of the practice of underfilling at the rank of police alarm operator. Based on state statute and the collective bargaining agreement, they sought back pay and promotions for themselves. Once the circuit court determined that the statute did not require the promotions of the officers to this rank, the officers abandoned this claim and instead pursued their claim under the collective bargaining agreement, again seeking back pay and promotions for themselves. Eventually they gained relief in the form of payment for their services.

    Unlike the officers, the MPA seeks in Pasko II a determination based solely on state statute, arguing that section 62.50(9) requires the promotion of any qualified officer to vacancies in the police alarm operator rank. The MPA is seeking a determination on behalf of all of its members, that is, for any qualified officer who is entitled to promotion to police alarm operator vacancies. The union's interest in filling such vacancies is not based on the unfairness of any individual officer's underfilling in these positions. Rather, its interest is based on ensuring that a job classification for which it specifically bargained is recognized by the city by filling any vacancies in this classification. Further, the union's interest is based on ensuring that the city meets its obligations under state statute. In sum, the supreme court agreed with the court of appeals that claim preclusion did not apply in Pasko II because there was no privity between the union members in the first action and the union in the second.

    However, the supreme court disagreed with the court of appeals' conclusion that, based on the current record, the MPA was entitled to a writ of mandamus compelling the promotions of police officers to vacancies within the police department. Instead, the court concluded that remand is appropriate on this issue to determine whether the collective bargaining agreement requires such promotions to occur, whether vacancies exist for such promotions, and whether such vacancies constitute the type of "newly created offices" for which the statute provides certain required promotion procedures.

    Criminal Law

    Child Pornography - Multiplicity - Sufficiency of Search Warrant Application

    State v. Multaler, 2002 WI 35 (filed 25 April 2002)

    Police found child pornographic materials in the defendant's house while executing a search warrant for evidence implicating the defendant in a series of homicides committed more than 25 years ago. The child pornography was discovered on two computer disks recovered from the defendant's home. These disks contained images of children engaged in sexually explicit activity. Based on the contents of the disks, the defendant was charged with 79 counts of child pornography in violation of Wis. Stat. section 948.12 (1997-98). Ultimately, the defendant was convicted on his plea to 28 counts under the same statute.

    On appeal, the defendant argued that the 28 child pornography convictions were multiplicitous because the Legislature did not intend that a separate charge could be levied for each separate pornographic image. In a unanimous decision authored by Justice Bradley, the supreme court disagreed.

    Wisconsin courts analyze claims of multiplicity using a two-part test. First, they inquire as to whether the offenses are identical in law and fact. Second, if the offenses are not identical in law and fact, they ask whether the Legislature intended multiple punishments for the offenses in question.

    The state conceded that the 28 charges of child pornography for which the defendant was convicted are identical in law because they fall under the same statute. But the court concluded that the 28 counts are not identical in fact. Inquiry into whether offenses are identical in fact involves a determination of whether the charged acts are separated in time or are of a significantly different nature. Acts may be "different in nature" even when they are the same types of acts as long as each required a new volitional departure in the defendant's course of conduct. Applying these standards, the court concluded that the 28 counts were not identical in fact. There were more than 28 downloaded files and the defendant made a separate decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. "Each decision to download more child pornography represented a new volitional departure" (¶ 58).

    Having determined that the charges are different in fact, the court turned to examine the Legislature's intent regarding the allowable unit of prosecution under the 1997-98 version of section 948.12. [Note: In 2001 Wis. Act 16, the Legislature amended section 948.12.] When charges are different in fact, the court presumes that the Legislature intended multiple punishments. This presumption is rebutted only by a clear indication of legislative intent to the contrary. The court determined that the defendant failed to rebut the presumption that the Legislature intended to allow punishment for each image on the disks. In particular, the court rejected the defendant's position that the number of charges is limited by the number of computer disks possessed rather than by the number of images on those disks. Said the court, "if the proper unit of prosecution were limited to the disk or other storage device, an individual could possess thousands of images depicting children in sexually explicit activity and face only one charge under section 948.12" (¶ 66).

    The court also concluded that the evidence in support of the search warrant, which is too lengthy to detail here, provided a substantial basis to conclude that there was a fair probability that evidence relating to the old homicides would be found in the defendant's house.

    Justice Sykes did not participate in this case.

    Criminal Procedure

    Miranda - Right to Counsel - Equivocal Request for Counsel after Waiver of Miranda Rights

    State v. Jennings, 2002 WI 44 (filed 1 May 2002)

    Before pursuing custodial interrogation of the defendant, the police advised him of his Miranda rights and obtained a valid waiver of those rights. Questioning proceeded and thereafter at one point the defendant stated, "I think maybe I need to talk to a lawyer." At that juncture questioning was halted but, approximately 15 minutes later, a different detective entered the interrogation room and began asking questions, during which the defendant made the statements that are the subject of this appeal. The defendant did not ask for a lawyer at any time during the questioning by the second officer.

    The defendant successfully moved to suppress the statements given to the second officer, claiming that they were given after he had invoked his Miranda right to counsel. The suppression order was based primarily on Wentela v. State, 95 Wis. 2d 283, 290 N.W.2d 313 (1980), wherein the supreme court held that the statement "I think I need an attorney" or "I think I should see an attorney" constituted a sufficient request for counsel. The state appealed, and the court of appeals certified the case to the Wisconsin Supreme Court, which granted certification.

    The certified question posed by the court of appeals was whether it may, must, or must not follow a decision of the Wisconsin Supreme Court that is directly on point but that appears to conflict with subsequent precedent from the U.S. Supreme Court. In this instance it was dealing with a conflict between the holding in Wentela summarized above and the subsequent decision of the U.S. Supreme Court in Davis v. U.S., 512 U.S. 452 (1994). In Davis the U.S. Supreme Court concluded that the statement "maybe I should talk to a lawyer" (which was uttered mid-interrogation after the defendant originally waived his Miranda rights) was equivocal and therefore not sufficient to invoke the right to counsel under the Fifth Amendment.

    Responding to the certified question, the supreme court, in a majority decision authored by Justice Sykes, concluded that when the court of appeals is confronted with a conflict between a decision of the state supreme court and a later decision of the U.S. Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to the state supreme court. If it does not, or if the state supreme court declines to accept certification, the Supremacy Clause of the U.S. Constitution compels the court of appeals to adhere to U.S. Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of the state supreme court.

    Turning to the merits of this case, the majority concluded that the defendant's mid-interrogation statement ("I think maybe I need to talk to a lawyer") was insufficient under Davis to invoke his right to counsel under the Fifth and Fourteenth Amendments. The court further concluded that the officers were not required to cease questioning the defendant, nor were they required to clarify his statement. The Davis court refused to adopt a requirement that officers must ask clarifying questions to resolve an ambiguous reference to counsel, though it recognized that it will often be good police practice for the interviewing officers to clarify whether or not the suspect actually wants an attorney. [The Davis holding on clarification conflicts with State v. Walkowiak, 183 Wis. 2d 478, 515 N.W.2d 863 (1994), in which the state supreme court held that when a suspect makes an equivocal reference to counsel, the police must cease all interrogation, except they may attempt to clarify a suspect's desire for counsel.]

    Given the conflict of Davis with Wentela and Walkowiak, the supreme court overruled Wentela and Walkowiak in this decision. It also declined to interpret the Wisconsin Constitution's right against self-incrimination more broadly than the federal constitutional right.

    Chief Justice Abrahamson filed a dissenting opinion that was joined by Justices Bablitch and Bradley.


    Stacking - "Regular Use" Exclusion

    Martin v. American Family Mutual Ins. Co., 2002 WI 40 (filed 30 April 2002)

    Eric Johnsen struck and injured Karen Martin while driving a pickup truck owned by his father, Henry. The pickup truck was covered by an American Family policy that indemnified Eric for liability incurred by his permitted use of the truck. American Family settled with the plaintiffs, Martin and her husband, by paying its liability limit of $150,000 under Henry's policy. Since their damages exceeded that amount, the plaintiffs also sought to recover under another liability policy, also issued by American Family, which covered Eric's own van (which was not involved in the accident). In short, the plaintiffs sought to stack the policies. Eric's policy contained a "regular use" exclusion, "which provides that American Family is not liable for bodily injuries `arising out of the use of any vehicle ... furnished or available for regular use by [Eric Johnsen] or any resident of [his] household'" (¶7).

    The circuit court agreed with American Family that the regular use exclusion precluded coverage under Eric's policy. The court of appeals affirmed.

    The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed. The "determinative issue" was whether the policies "promise to indemnify Eric Johnsen against the same loss" (¶13). Such a determination must be made on a case-by-case basis. In rejecting the plaintiffs' arguments, the supreme court primarily relied upon its decision in Agnew v. American Family Mutual Insurance Co., 150 Wis. 2d 341 (1989). The court held that "the `regular use' exclusion is designed to prevent a policyholder from purchasing an insurance policy and paying the premium to insure a vehicle while in effect having available two vehicles for regular use - one that the policyholder owns and insures and another that the policyholder does not own but that is available to him for regular use. The potential or actual habitual use of a nonowned vehicle by the policyholder in the present case, just like the potential or actual habitual use of another owned vehicle by the policyholder in Agnew, increases the insurance company's risk without a corresponding increase in the premium" (¶22). In sum, only Henry's policy covered this loss and the regular use exclusion was enforceable.

    Statute of Limitations - Coverage - Triggering Date

    Yocherer v. Farmers Ins. Exchange, 2002 WI 41 (30 April 2002)

    Karen Yocherer was injured in a 1987 automobile accident. In February 1995 she settled her claims with the tortfeasors and reserved her claims against her own underinsured motorist (UIM) policy issued by Farmers Exchange (Farmers). As provided by the policy, the parties began arbitration proceedings, which were terminated on Feb. 12, 1997, when Farmers advised Yocherer that the statute of limitation had expired. In May 1997, Yocherer and her husband began this action against Farmers for bad faith, breach of contract, and other claims. Farmers asserted defenses based on the statute of limitation, estoppel, and laches.

    The circuit court denied Farmers' motion to dismiss on these grounds. It ruled that the six-year statute of limitation that governs contract actions accrued only when Farmers breached the contract, which allegedly occurred when it terminated the arbitration proceedings in February 1997 (nearly 10 years after the accident). See Wis. Stat. § 893.43. The court of appeals affirmed.

    The supreme court, in a decision authored by Justice Prosser, also affirmed but on a different theory. The parties agreed that the applicable statute of limitation was section 893.43. Analyzing prior case law, the court held "that the date of loss for actions seeking coverage for underinsured motorist coverage is the date on which there has been a final resolution of the underlying claim with the tortfeasor, be it through denial of the claim, settlement, judgment, execution of releases, or other form of resolution" (¶22). Thus, in this case, the six-year statute began running in February 1995 when Karen Yocherer settled with the original tortfeasors in the 1987 accident. Since this action was begun about two years later, it fell well within the six-year limit established by section 893.43.

    The court also rejected defenses grounded in laches or equitable estoppel. The lower courts correctly found that the plaintiffs had not engaged in unreasonable delay and that Farmers failed to demonstrate prejudice. Moreover, the plaintiffs' decision to arbitrate before litigating constituted neither "error or delay" (¶24). Nor did the doctrine of equitable estoppel apply. Farmers "failed to meet its burden by providing facts to show that it relied upon any actions of the [plaintiffs] to its detriment" (¶25).


    Habeas Corpus - Adequate Alternate Remedy

    State ex rel. Haas v. McReynolds, 2002 WI 43 (filed 30 April 2002)

    The Racine Municipal Court issued seven commitment orders for the petitioner after he failed to pay forfeitures to the city for various ordinance violations. After the petitioner was taken into custody, he challenged his confinement by filing a petition for a writ of habeas corpus in the circuit court, contending that the municipal court lacked jurisdiction to issue the commitments. The circuit court denied the request for the writ.

    The petitioner then filed a notice of intent to appeal the circuit court's decision. Within a few days he also filed a separate petition for a writ of habeas corpus with the supreme court. He then voluntarily withdrew his appeal of the first petition. The supreme court transferred the second habeas petition to the court of appeals for disposition and the court of appeals denied it. In a unanimous decision authored by Justice Wilcox, the supreme court affirmed the court of appeals' denial of the second petition.

    The basis for the affirmance by the supreme court was that the petitioner had an adequate alternative remedy available to him. "We have long and consistently held that the extraordinary writ of habeas corpus is not available to a petitioner when the petitioner has other adequate remedies available" (¶ 14).

    In this case there was no question that the petitioner had an otherwise adequate remedy: his direct appeal of the denial of his first writ, which he voluntarily dismissed. Rather than seeking a second habeas corpus writ, the appropriate course of action for the petitioner should have been a challenge of the circuit court's denial of his first habeas corpus petition before the court of appeals.