Wisconsin Lawyer
Vol. 79, No. 3, June
2006
2005 Significant Court Decisions
In his annual feature, the author
highlights what he believes are significant Wisconsin Supreme Court and
Court of Appeals decisions from 2005.
Sidebar:
by Daniel W. Hildebrand
In several cases in 2005, the Wisconsin Supreme Court construed the
Wisconsin Constitution in a significant way to form public policy.
Torts
In Ferdon v. Wisconsin Patients Compensation Fund,1 the supreme court held that the $350,000 cap on
noneconomic damages applicable to health care tortfeasors2 violated the equal protection guarantees of the
Wisconsin Constitution.3 The court
determined that the legislature acted arbitrarily by shifting the
economic burden of medical malpractice from insurance companies and
negligent health care providers to a small group of vulnerable injured
patients, and that there is no rational basis for treating the most
seriously injured patients less favorably than those who are less
seriously injured. The court also held that the cap was not rationally
related to the legislative objective of lowering medical malpractice
insurance premiums. Studies of the cap's impact on medical malpractice
insurance premiums showed that it would be difficult to draw any
conclusions based on enactment of the cap. The level of premiums is
based on interest rates, investment returns, and competition among
insurers. Further analysis of the operation of the Wisconsin Patients
Compensation Fund showed that the fund has been fiscally sound both when
there were no caps on noneconomic damages and, thereafter, when caps
were ultimately instituted at $1 million and subsequently reduced to
$350,000. The fund assessments have been decreasing over the years. As
to the objective of lowering health care costs, medical malpractice
insurance premiums are an exceedingly small portion of overall health
care costs.
Daniel W. Hildebrand, U.W. 1964, is a
shareholder of DeWitt Ross & Stevens S.C., Madison. He is a former
president of the Dane County Bar Association and the State Bar of
Wisconsin. He is a member of the ABA Standing Committee on Ethics and
Professional Responsibility and the ABA Board of Governors. He also is a
member of the American Academy of Appellate Lawyers and has a
substantial appellate practice.
Justices Prosser, Wilcox, and Roggensack dissented. They argued that
other courts had upheld the constitutional validity of caps and disputed
the irrationality of the cap when compared to legislative reasons for
it. They argued that the legislature acted within its powers in enacting
the caps.
In Thomas v. Mallett,4 the
supreme court extended the risk-contribution theory of Collins v.
Eli Lilly Co.5 to lead pigment
manufacturers. The Wisconsin Constitution confers on the supreme court
the ability to create an adequate remedy when one does not exist.6 In reaching its decision, the court described the
serious effects of childhood lead poisoning. The plaintiff will require
lifetime medical monitoring for physical disorders and is at a high risk
for developing future complications, including kidney disease,
peripheral neuropathy, hypertension, and cardiovascular disease.
However, the plaintiff was unable to demonstrate that he was injured by
a particular white-lead carbonic pigment and was unable to identify the
producer of the pigment he ingested at his residence, due to the generic
nature of the pigment, the number of producers, the lack of pertinent
records, and the passage of time. In reaching its decision, the court
relied primarily on Collins v. Eli Lilly Co.,7 holding that the risk-contribution theory exists
for situations in which a plaintiff is without any remedy and where
negligent tortfeasors would not be responsible for their torts because
they could not be identified. The court extended Collins to
apply to the situation here, even though the plaintiff had a remedy
against his former landlords. This remedy does not insulate
manufacturers from liability under the risk-contribution theory.
Justices Wilcox and Prosser dissented. First, they emphasized that
this is not a case in which the plaintiff is without a remedy, because
the plaintiff has recovered from his landlords. Application of normal
tort rules of liability does not equate to asking the court to use a
constitutional provision to shield parties from liability. Second, the
dissent said that another problem is that the majority here, unlike the
court in Collins, did not require the plaintiff to prove that
the defendant reasonably could have contributed in some way to the
actual injury. By extending the risk-contribution theory, the majority
effectively created an irrebuttable presumption of causation resulting
in absolute liability for manufacturers of raw materials.
Constitutional Law
In its initial decision in State v. Knapp,8 the supreme court held that physical evidence
obtained as a direct result of a Miranda9 violation is inadmissible when the violation was
an intentional attempt to prevent the suspect from exercising Fifth
Amendment rights. However, in United States v. Patane,10 a plurality of the U.S. Supreme Court concluded
that, under the Fifth Amendment, the fruit of the poisonous tree
doctrine does not extend to derivative evidence discovered as a result
of a defendant's voluntary statements obtained without Miranda
warnings. The U.S. Supreme Court then vacated and remanded
Knapp for further consideration.11
On remand, the Wisconsin Supreme Court concluded that the fruit of
the poisonous tree doctrine applies under the due process clause of the
Wisconsin Constitution.12 Although the
court recognized that substantially similar language in the state and
federal constitutions should receive similar construction, the
similarity or identity of the constitutional clauses cannot be
conclusive unless the Wisconsin Supreme Court would forfeit to the
federal judiciary the supreme court's power to interpret the Wisconsin
Constitution. Furthermore, an interpretation of "due process" to apply
the fruit of the poisonous tree doctrine to such evidence is consistent
with the fact that the Wisconsin Supreme Court recognized the
exclusionary rule long before the rule was incorporated into the
Fourteenth Amendment by the U.S. Supreme Court.13 Because the goals of the exclusionary rule and
the fruit of the poisonous tree doctrine are to curb illegal
governmental activity, it is appropriate to apply the exclusionary rule
to bar evidence obtained as a result of a deliberate Miranda
violation.
Justices Wilcox, Prosser, and Roggensack dissented. They argued that
the court previously established that the due process clause of the
Wisconsin Constitution does not create rights broader than those
provided by the Fifth Amendment. They argued that the court should not
suddenly change its well-settled manner of interpreting the Wisconsin
Constitution simply to avoid the impact of Patane, arguing that
such a tactic seriously undermines the prestige, influence, and function
of the judicial branch of state government.
• In State v. Dubose,14
the supreme court held that under the due process clause of the
Wisconsin Constitution,15 evidence obtained
from an out-of-court showup is inherently suggestive and will not be
admissible unless, based on the totality of the circumstances, the
procedure was necessary. Prior decisions have established a due process
right of criminal suspects to be free from confrontations that, under
the circumstances, are unnecessarily suggestive. The state argued that
the court should maintain its holdings that an impermissibly suggestive
identification can still be used at trial if, based on the totality of
the circumstances, the identification was reliable. However, relying on
extensive studies regarding identification evidence, the court
recognized that its current approach to eyewitness identification has
significant flaws.
The court concluded that evidence obtained from an out-of-court
showup is inherently suggestive and will not be admissible, unless,
based on the totality of the circumstances, the procedure was necessary.
A showup will not be necessary unless the police lack probable cause to
make an arrest or, as a result of other exigent circumstances, could not
have conducted a lineup or a photo array. Lineups and photo arrays
generally are more reliable than a showup, because they distribute the
probability of identification among the number of persons arrayed, thus
reducing the risk of misidentification. The court did not adopt a per se
exclusionary rule, because showups have been a useful instrument in
investigating and prosecuting criminal cases, and there will be
circumstances in which such a procedure is necessary.
Justices Wilcox, Prosser, and Roggensack dissented. If the Wisconsin
Constitution is to mean anything, its principles must not be subject to
change based on the prevailing winds of the time. The court has
repeatedly stated that the due process clauses of the state and federal
constitutions are essentially equivalent and are subject to identical
interpretation. The majority should not rely on social science studies
presented by advocacy groups to justify departure from precedent. Not
only is the data disputed, but, more importantly, it does not constitute
a valid basis to determine the meaning of the Wisconsin
Constitution.
Juvenile Law
In State v. Jerrell C.J.,16 the
supreme court adopted a supervisory rule requiring the electronic
recording of custodial interrogation of juveniles. The juvenile was a
14-year-old male, arrested at his home on suspicion of robbery of a
McDonald's. He was taken to the police station, booked, and placed in an
interrogation room, where he was handcuffed to a wall and left alone for
approximately two hours. He was advised of his Miranda rights.
The juvenile initially denied involvement in the crime, but after
persistent questions lasting more than five and one-half hours after the
interrogation began and eight hours after he was taken into custody, the
juvenile signed a statement prepared by the detective admitting his
involvement in the robbery. Several times during the questioning, the
juvenile asked if he could make a phone call to his mother or father,
but each request was denied.
The court weighed the defendant's personal characteristics against
the pressures and tactics used by the police, and concluded that the
state did not meet its burden of proving that the written confession was
the product of a free and uncontrolled will. The court refused to adopt
a per se rule excluding in-custody admissions from any child under age
16 who has not been given the opportunity to consult with a parent or
interested adult. However, under the Wisconsin Constitution,17 the court has superintending and administrative
authority over all state courts. Although troubled by the tactic of
ignoring a juvenile's repeated requests for parental contact, the court
maintained that it would continue to consider the totality of the
circumstances approach. However, the court adopted a rule requiring an
electronic recording in order to provide courts with the best evidence
from which they can determine, under the totality of the circumstances,
whether a juvenile's confession is voluntary. Contrary to the state's
argument, the court is not adopting a rule of police practice but rather
adopting a rule regarding admissibility of the juvenile's confession.
The court plainly has the authority to adopt rules regarding the
admissibility of evidence. A recording requirement will provide the
court with a more accurate and reliable record of an interrogation,
reduce the number of disputes over Miranda warnings and the
voluntariness of confessions, protect the individual interest of police
officers wrongfully accused of improper tactics, enhance law enforcement
interrogations of juveniles, and protect the rights of the accused.
Justices Wilcox, Prosser, and Roggensack concurred in part and
dissented in part. They agreed that the juvenile's confession was
involuntary and that his delinquency adjudication must be reversed. Once
having made that holding, the majority should stop. The court should
have recommended legislation instead of legislating from the bench.
Attempting to dictate the practices of law enforcement agencies under
the guise of "superintending" state courts is not an appropriate role
for the judiciary.
Punitive Damages
Wischer v. Mitsubishi Heavy Industries of America
Inc.18 and Strenke v.
Hogner19 provided an interpretation of
Wis. Stat. section 895.85(3), effective May 17, 1995. The statute
provides that a plaintiff may receive punitive damages if evidence is
submitted showing that the defendant acted maliciously toward the
plaintiff or "in an intentional disregard of the rights of the
plaintiff." In Wischer, the court of appeals concluded that in
order to intentionally disregard the rights of a plaintiff, a defendant
was required to have 1) a general intent to perform an act; and 2)
either a) a specific intent to cause injury by that act; or b) knowledge
that the act is practically certain to result in injury.20
The supreme court disagreed with the court of appeals' construction
of the statute. The legislature did not intend an "intentional disregard
of the rights of the plaintiff" to require "intent to cause injury to
the plaintiff." Rather, the legislature reaffirmed the common law
principle that punitive damages may be premised on conduct that is in
"disregard of rights." The legislature chose "intentional" to describe
the heightened state of mind required of a defendant who disregards
rights, replacing the common law definition of "wanton, willful and
reckless."21 The phrase "disregard of
rights" describes a type of conduct that involves indifference on the
defendant's part to the consequences of his or her action. Thus, the
result or consequence is intentional if the person acts with the purpose
to cause the result or consequence or is aware that the result or
consequence is substantially certain to occur from the person's conduct.
An act or conduct that is substantially certain to result in the
plaintiff's rights being disregarded requires that the act or course of
conduct be deliberate. Additionally, the act or conduct must actually
disregard the rights of the plaintiff, whether it be a right to safety,
health, or life, a property right, or some other right. Finally, the act
or conduct must be sufficiently aggravated to warrant punishment.
Punitive damages cannot be imposed for negligence.
In Strenke, the supreme court held that there was sufficient
evidence to impose punitive damages in the case of a drunk driver who
caused an accident. While the defendant may not have targeted the
plaintiff personally, his intentional disregard of the rights of all
motorists on the road necessarily implicated the plaintiff's rights. In
Wischer, the evidence was sufficient to impose punitive damages
when the defendant used a 45-story-high crane to lift a billboard-size
load of nearly one million pounds on a windy afternoon without
calculating wind speeds, and the crane's load chart limitations were
exceeded.
Justice Wilcox concurred with the result in Strenke but not
with the court's interpretation of the statute. In Wischer,
several justices concurred. Justice Wilcox dissented in Wischer
and said that the court had written out of existence a duly enacted law
of this state. He opined that the tragic facts of Wischer
constituted reckless behavior that cannot be punished under the
statute.
Endnotes
Wisconsin Lawyer