Wisconsin Lawyer
Vol. 80, No. 6, June
2007
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
Appellate Procedure
False Certifications - Incomplete Appendices - Sanctions - Consent
Searches
State v. Bons,
2007 WI App 124 (filed 14 March 2007) (ordered published 26 Apr. 2007)
Bons was convicted of possessing child pornography, which was found
in his car during a traffic stop. The trial judge ruled
that the stop was lawful and that Bons had voluntarily consented to
the resulting search of his car.
The court of appeals affirmed in a decision written by Judge
Anderson. Because the search and seizure issues are
fact-intensive and involved long-standing law, they will not be
discussed further. Of greater import was the court's sanctioning of
defense
counsel for falsely certifying in his brief-in-chief that the appendix
complied with Wis. Stat. section (rule) 809.19(2)(a). "The
appendix, however, is in flagrant violation of the requirements of
that rule" (¶ 20). Rule 809.19(2)(a) "dictates that an
appellant's
appendix contain `relevant trial court record entries, the findings or
opinion of the trial court and limited portions of the record essential
to
an understanding of the issues raised, including oral or written
rulings or decisions showing the trial court's reasoning regarding
those issues'" (¶ 22).
In this case the appendix contained only a copy of the judgment of
conviction, the notice of motion and motion to suppress,
and the notice of intent to pursue postconviction relief, documents
the court found "meaningless" to the issues on appeal. The
court found that "no items essential to our understanding of the
issues were in his appendix" (¶ 23). Particularly egregious
was
the omission of the trial court's extensive oral decision regarding
the stop and search
(see id.). The court of appeals sanctioned
Bons's attorney and ordered him to pay a monetary penalty
(see ¶ 25).
In a concurrence, Judge Brown decried the repeated filing of
"worthless appendices" and declared the court of
appeals' readiness to sanction noncomplying counsel. "Appellate
lawyers need to bear in mind that an appeal obliges this court, as
an intermediate appellate court, to consider whether the circuit court
committed error. As a result, we need to consider what
the circuit court said, whether evidenced in a memorandum decision or
in a transcript. When an appendix fails to provide the
circuit court's rationale, our full understanding of the case is put
on hold until we can ferret it out in the record. Enough already"
(¶ 27).
"It is time that lawyers stop thinking that if they just
provide a copy of the judgment and motion papers, it will be
adequate. These are NOT relevant court entries. It is time that all
attorneys understand that it is often not sufficient to simply include a
copy of the formal findings of fact and conclusions of law. If
elsewhere in the record, oral or written rulings or decisions show the
trial court's reasoning regarding those issues, they should be
included in the appendix. By the same token, inundating us with reams
and reams of material bearing no relation to the precise issues before
the court is another practice that should be avoided" (¶ 29).
"One more thing. I anticipate that there are a few lawyers who
may concede that the appendix may not be `complete' if
it contains a copy of the judgment or the formal findings of
fact/conclusions of law or irrelevant entries from the record, but
would argue that being `incomplete' is not the same thing as being
`false.' To those, I respond that if a lawyer certifies to us that the
oral or written rulings or decisions showing the trial court's
reasoning regarding the issues on appeal are contained in the appendix,
and the ruling or rulings are not in the appendix, it is false. I
cannot conceive of any other answer" (¶ 30).
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Civil Procedure
Settlements - Competency - Guardians ad Litem
Kainz v.
Ingles, 2007 WI App 118 (filed 13 March 2007) (ordered
published 26 Apr. 2007)
In a significant case of first impression, the court of appeals
discussed the proper standard for determining a party's
competence to settle a case under Wis. Stat. section 807.10. Kainz
(the plaintiff) was injured in a car accident. A "significant
issue"
concerning her mental health surfaced during the pretrial phase. The
court ordered a psychiatric examination, during which it was found
that the plaintiff suffered from severe mental illness unrelated to
the car accident. Based on the report, the judge appointed a
guardian ad litem (GAL), who recommended that the plaintiff accept a
$125,000 settlement offer. The plaintiff refused to accept
the settlement, and so the court held a competency hearing and
determined that the GAL could lawfully settle on her behalf
under section 807.10. The court eventually approved the $125,000
settlement based on the GAL's recommendation.
The court of appeals, in an opinion written by Judge Curley,
affirmed. First, addressing the standard of review, the court
held that "the question of competency under Wis. Stat. §
807.10 is a question of fact" that is reviewed under a
"clearly
erroneous" standard (see ¶¶ 3, 21). Second,
the court approved as "well-reasoned and proper" the
three-prong test for competency devised
by the circuit court under section 807.10. Under this test, "a
person is incompetent if he/she lacks the ability to reasonably
understand pertinent information, rationally evaluate litigation
choices based upon that information, or rationally communicate with,
assist
and direct counsel" (¶ 3).
The court of appeals rejected the plaintiff's contention that
competency is controlled instead by Wis. Stat. section
880.01(14), which governs when an individual needs a general guardian.
"Wisconsin Stat. ch. 880 is itself clearly inapplicable here
because
there has been no indication that Kainz needs a general guardian, and
as such, the question is whether the § 880.01(4) standard
can nonetheless assist in the development of a standard for competency
determinations in the context of Wis. Stat. § 807.10.
We conclude that it cannot" (¶ 29). (Editors'
Note: Wis. Stat. chapter 880 has been repealed and recreated as
Wis. Stat. chapter 54.)
The plaintiff's interpretation conflicted with the plain language of
section 807.10. "As the trial court recognized, if the
statute was intended to allow for the settlement of disputes only for
a person who has, or satisfies the requirements of needing, a
general guardian, then the alternative language at issue here - `or
the guardian ad litem with the approval of the court' - would be
rendered meaningless" (¶ 30). General guardians and GALs
"serve separate and distinct purposes and ought not to be
confused" (¶ 33).
The court of appeals also addressed the competency standards that
pertain in criminal proceedings and the guidelines
for dealing with clients with mental health problems contained in the
professional responsibility rules. The three-prong standard used
by the circuit court did, contrary to the plaintiff's argument,
incorporate pertinent elements of the criminal competency test in
Wis. Stat. section 971.12 (see ¶¶ 38-43). But the
ethics rule governing clients with mental health problems, SCR 20:1.14,
was of
only "limited assistance in formulating a competency
standard" (¶ 46).
The record further supported the circuit court's determination that
although the plaintiff clearly had the capacity to
"understand pertinent information" (the first factor), she
"fell short" as to the second and third factors: "We
agree with the trial court that
many of [the plaintiff's] delusional beliefs, reported and testified
to by Dr. Feinsilver and confirmed through [the plaintiff's]
own testimony, connect the car accident to the insurance company and
her lawyers in a way that fundamentally interferes with her
ability to understand the settlement offer and makes her incapable of
evaluating litigation choices in a rational, reasoned manner.
The record also clearly shows that the various conspiracy theories
that [the plaintiff] associates with the insurance company and
her lawyer, including that hair salons dye her hair against her
wishes, and global positioning and tracking devices have been inserted
into her body, keep her from effectively assisting her lawyer"
(¶ 53).
Finally, the court held that the GAL and the circuit court properly
approved the settlement despite the plaintiff's protests that
a jury may have awarded her more. "The mere fact that [the
plaintiff's] rejection of the settlement offer can be rationalized due
to the possibility that a jury might have awarded more than $125,000
does not decrease the effect of her delusions on her decision
or make her decision any less irrational" (¶ 57).
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Criminal Law
Controlled Substances - Keeping a Drug Vehicle
State v.
Slagle, 2007 WI App 117 (filed 8 March 2007) (ordered published
26 Apr. 2007)
Police officers stopped the
defendant in his truck after receiving a complaint that he had pointed
a gun at someone. The officers found, in an inside pocket
of the defendant's jacket, a "solid corner piece" of cocaine
weighing about 12.3 grams. The state charged the defendant with
possession of cocaine with intent to deliver in violation of Wis.
Stat. section 961.41(1m)(cm) and with keeping a "drug car," in
violation
of Wis. Stat. section 961.42. The defendant's theory of defense was
that he confiscated the cocaine from his girlfriend, a cocaine
addict who performed acts of prostitution to support her habit. The
jury found him guilty on both charges.
The defendant appealed the part of his judgment convicting him of
keeping or maintaining a vehicle "used for
keeping
[controlled substances] in violation of [Chapter 961]."
Wis. Stat. § 961.42(1). This crime is commonly referred to as
keeping a
drug vehicle. The defendant challenged the sufficiency of the
evidence. The question before the appellate court was whether
evidence showing that the defendant used his truck to transport
cocaine on a single occasion for an unknown distance satisfies the
requirement that a vehicle be used for "keeping" the cocaine
within the meaning of section 961.42(1).
In a decision authored by Judge Lundsten, the court of appeals
reversed. The court began its analysis by turning to
Wisconsin Jury Instructions-Criminal 6037B, which catalogs the
elements of section 961.42. According to the jury instruction, because
the state charged the defendant with keeping or
maintaining a vehicle used for "keeping" cocaine (as opposed
to maintaining it for "manufacturing" or
"delivering" the drug), the state had
to prove that the vehicle was used for keeping cocaine. The
instruction provides that "keeping" requires that "the
cocaine be kept
for the purpose of warehousing or storage for ultimate manufacture or
delivery. It requires more than simple possession."
The only dispute in this case was whether the trial evidence
demonstrated that the cocaine was being "warehoused" or
"stored" in the defendant's truck. "Boiled down, the
question is whether evidence showing that a person is using a vehicle to
transport cocaine on a single occasion for an unknown distance
satisfies the requirement that the vehicle is being used for
`warehousing
or storage'" (¶ 7).
The appellate court agreed with the defendant that the common
meanings of the terms "store" and "warehouse" do
not encompass merely possessing an item while transporting it.
"We conclude that [the defendant] was not warehousing or storing
his cocaine when he carried it in his truck while moving from one
location to another. Accordingly, we further conclude that
the evidence is insufficient to support a jury finding that [the
defendant] used his truck for the purpose of `keeping' cocaine"
(¶ 10).
The court continued, "We have resolved the question presented
by the facts in this case, but acknowledge that this
decision leaves significant questions unanswered. The evidence here
shows nothing more than transportation. But, of course, vehicles
are often used for storage. It would seem that a person who places
cocaine in a car for an extended period of time, including
significant periods when the car is not being driven, is using the car
to store the cocaine. But what if the evidence shows that a
defendant placed cocaine in a car's glove compartment at one location,
drove to a second location where he left the car parked for a short
time, and then drove on to his final location where he removed the
cocaine? Has the car been used for storage? Does the answer
depend on how long the car was parked? Such questions must be left for
another day" (¶ 11).
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Criminal Procedure
Search Warrants - Expert Evidence - Sufficiency - Habitual
Criminals
State v.
LaCount, 2007 WI App 116 (filed 20 March 2007) (ordered
published 26 Apr. 2007)
LaCount was convicted of felony theft by a bailee and securities
fraud relating to his handling of investments while he
worked for an investment firm (GP&L). The court of appeals, in an
opinion authored by Chief Judge Cane, affirmed the conviction.
First, the court considered and rejected the argument that
authorities violated LaCount's Fourth Amendment rights when
they executed a search warrant at the GP&L offices. LaCount did
not challenge either the scope or the probable cause basis of
the search warrant itself (see ¶ 8). Instead, he
challenged the warrant's execution, but he too narrowly characterized
the scope of
the warrant.
"When read as a whole, the search warrant authorizes the search
for and seizure of more than just the records of those
clients specified in the warrant's application, and includes searching
LaCount's office within GP&L. The search warrant's first five
paragraphs allow for the search for and seizure of paper records and
computer records. In particular, the warrant allowed police to
search and seize (1) any type of bank account or investment account
owned by GP&L, (2) any type of bank account or investment
account owned by Louis LaCount, (3) records relating to payroll,
accounts payable, telephone logs or accounts receivable of GP&L, and
(4) records indicating the names of past and present employees of
GP&L or past and present owners or shareholders in GP&L"
(¶ 11). The documents taken fell within the warrant's scope, and
because LaCount's office was within the GP&L office, police
were entitled to search LaCount's office as well.
Second, no error occurred when the state introduced testimony of the
supervisory counsel for the Wisconsin Department
of Financial Institutions regarding investment contracts. The court
agreed that the expert witness, Cohen, could "not provide a
legal definition of investment contract in his testimony," but
the definition he used tracked that set forth in the jury instruction
(¶ 16).
In short, LaCount failed to show prejudice. Cohen's testimony that
"an investment contract was present" came in response to
a properly framed hypothetical question
(see ¶ 19), and it was clear that Cohen "was merely
assuming facts in giving his opinion"
(¶ 21).
Third, the court also was satisfied that sufficient evidence
supported the conviction under Wisconsin law, which holds that for
an investment to be an investment contract "simply requires `the
essential managerial efforts of someone other than the
investor'"(¶ 25). The efforts need not come solely from
another person
(see id.).
Finally, LaCount was not entitled to have the jury determine his
status as a habitual criminal under the recent U.S.
Supreme Court decisions in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Shepard v. United
States, 544 U.S. 13 (2005). "We agree
with the State that when read together, Shepard and
Apprendi suggest that a court, rather than a jury, may
determine the applicability
of a prior conviction for sentence enhancement where the applicability
of the prior conviction is readily determined on the
existing judicial record" (¶ 29).
Forfeiture of Vehicle Used to Facilitate Drug Crime - Failure to
Hold Timely Hearing -
Dismissal with Prejudice Required
State v. One 2000
Lincoln Navigator, 2007 WI App 127 (filed 27 March 2007)
(ordered published 26 Apr. 2006)
The state commenced an action for forfeiture of a 2000 Lincoln
Navigator, alleging that the vehicle "was used to facilitate
the transportation of cocaine" in violation of Wis. Stat.
section 961.55, and was, therefore, subject to forfeiture under
section 961.55(1). Section 961.55(2) permits seizure
of property, including motor vehicles, that are subject to forfeiture
under Wis. Stat. chapter
961 (Wisconsin's controlled substances laws) if, among other things,
they were "used, or intended for use, to transport, or in any
manner to facilitate the transportation, for the purpose of sale or
receipt of" controlled substances. See Wis. Stat.
§ 961.55(1)(d).
Section 961.555(2)(a) requires that an action seeking forfeiture of
property seized under section 961.55 be commenced
"within 30 days after the seizure." Section
961.555(2)(b) provides that "[u]pon service of an answer, the
action shall be set for hearing
within 60 days of the service of the answer." No hearing on the
state's forfeiture petition was held within 60 days of service of the
answer, and the circuit court granted the motion to dismiss made by
the vehicle's registered owner. The dismissal was entered
"without prejudice." The issue on appeal was whether the
dismissal should have been "with prejudice."
In a decision authored by Judge Fine, the court of appeals concluded
that "[t]he sixty-day limit in Wis. Stat. § 961.555(2)(b)
is mandatory and a forfeiture petition must be dismissed unless the
requisite hearing is held within the sixty-day period because
a person may not be deprived of his or her property `for an indefinite
time' without a prompt judicial assessment of whether
forfeiture is justified"(¶ 3) (citations omitted).
"Accordingly, once the sixty-day period mandated by
§ 961.555(2)(b) has expired, the circuit court
loses competency, and the State may not start the clock running anew
by filing another forfeiture petition based on the same facts"
(¶
3). Thus, the court of appeals ordered that the circuit court's order
of dismissal be modified to be a dismissal "with prejudice."
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Family Law
Termination of Parental Rights - Timeliness of Dispositional Order
Dane County Dep't of
Human Servs. v. Dyanne
M., 2007 WI App
129 (filed 29 March 2007) (ordered published 26 Apr. 2007)
The Dane County Department of Human Services (DHS) petitioned for
termination of Dyanne M.'s parental rights to
her daughter, A. Dyanne contested the petition. After a fact-finding
hearing, a jury found grounds to terminate. On June 20, 2006,
the circuit court held a dispositional hearing. At the conclusion of
the hearing, the circuit court found that terminating Dyanne's
parental rights to A was in the child's best interests. The court
orally ordered that Dyanne's parental rights to A be terminated and
that custody and guardianship of A be transferred to the state
Department of Health and Family Services for purposes of
adoptive placement.
The DHS submitted a proposed written order on June 23, 2006. Dyanne
submitted a list of objections to the proposed order
on June 28. The DHS responded to the objections and submitted a
revised proposed order on June 30. The circuit court signed
the revised proposed order and filed it with the clerk of court on
July 10.
Dyanne appealed, contending that the circuit court lost competency
in this case by failing to enter a disposition within 10
days of the dispositional hearing, as required by Wis. Stat. section
48.427(1). She built her argument on the fact that the circuit
court's written order was not signed and filed within the 10-day
limit.
A circuit court loses competency in a termination proceeding when it
fails to comply with a time limit "between critical
stages within the adjudication process" (¶ 8). Examples of
such time limits, as derived from case law, include the 30-day time
limit
for holding an initial hearing, the 45-day time limit for holding a
fact-finding hearing, and the 45-day time limit for holding a
dispositional hearing (see ¶ 9). The question before the
appellate court in this case was whether the circuit court's failure to
comply
with the 10-day time limit in Wis. Stat. section 48.427(1), under
the circumstances here, implicated a "critical stage" in the
"adjudication process" (¶ 10).
In a decision authored by Judge Lundsten, the court of appeals
concluded that the circuit court did not lose
competency, "because it fully adjudicated the TPR proceeding and
made all the decisions it was required to make in its oral decision and
order prior to expiration of the 10-day time limit" (¶ 11).
Having fully made all necessary rulings orally, there was nothing left
for
the circuit court to adjudicate. "It follows that the `critical
stages within the adjudication process' concluded when the court
rendered
its oral decision. Moreover, because the 10-day time limit in Wis.
Stat. § 48.427(1) had not passed when the circuit court ruled
orally, any subsequent failure to comply with that time limit did not
deprive the circuit court of competency. The net effect of our
holding is that, as long as the required rulings are made within the
10-day time limit, even if they are oral, the court does not lose
competency"(¶ 14).
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Insurance
Statute of Limitation - Arbitration - Tolling
Thom v. OneBeacon Ins.
Co., 2007 WI App 123 (filed 6 March 2006) (ordered published 26
Apr. 2007)
Rose was injured while she was riding in a car driven by her sister,
Jean. Rose filed against Jean's insurance carrier a liability
claim that was different from other claims she and Jean had filed
regarding underinsured motorist (UIM) coverage. The issue in this
case was whether that negligence claim was barred by the statute of
limitation. The circuit court ruled that the statute was tolled
while Rose and Jean arbitrated their claims against the insurer for
UIM coverage and, thus, the negligence claim was timely.
The court of appeals, in an opinion written by Judge Peterson,
reversed. The three-year statute of limitation in Wis.
Stat. section 893.54 began running on the date of the accident and
expired "well before" Rose filed her amended complaint against
Jean (see¶ 9). Rose argued that Wis. Stat. section
631.83(5) tolled all claims between the parties in arbitration.
Conceding that the statute's language did not "clearly support
either of the parties' proposed interpretations" (¶ 13), the
court held that the context of the statute supported the insurer's
position
(see ¶ 14). "Because all of the statutory language
surrounding Wis. Stat. § 631.83(5), including the statute
regulating arbitration and appraisals, applies only to first-party
claims, we conclude
§ 631.83(5) tolls only first-party claims. Here, Rose's new claim
against OneBeacon based on Jean's liability is a third-party claim.
The statute of limitations on that claim therefore continued to run
despite the arbitration, and expired on April 14, 2004, well
before Rose filed her amended complaint" (¶ 18).
The court also rejected Rose's arguments that her new claim related
back to her original complaint
(see¶¶ 19-23) and that her amended complaint was an
amendment to conform to the evidence
(see ¶¶ 24-25).
Anti-stacking Provisions - "Each
Person"
Progressive Casualty
Ins. Co. v. Bauer, 2007 WI App 122 (filed 20 March 2007)
(ordered published 26 Apr. 2007)
Tessa was injured while a passenger on a motorcycle. She alleged
that her injuries were caused by the negligence of
the motorcycle's driver and its owner, both of whom were insureds
under a liability policy. The claim against the owner was based on
a theory of negligent entrustment. The policy carried limits of
$25,000 per injured person and $50,000 per accident. The insurer
filed for a declaratory judgment limiting its exposure to $25,000, but
Tessa contended she was entitled to $50,000. The circuit
court ruled in Tessa's favor.
The court of appeals, in an opinion authored by Judge Peterson,
affirmed. The court held that the decision was controlled
by Iaquinta v. Allstate Insurance Co., 180 Wis. 2d 661 (Ct.
App. 1993). "Because both negligent operation of the vehicle
and negligent entrustment of it involved active negligence, we
concluded [in Iaquinta that] both the driver and the owner of
the
vehicle were entitled to equal - and therefore full - protection under
the policy" (¶ 7).
The insurer in this case, however, contended that Iaquinta
was "overruled" when the legislature enacted Wis. Stat.
section 632.32(5)(f), but the court was not convinced based on the
statute's text or its history. "[T]he statute merely allows the
policy
to prohibit an insured from adding the limit of coverage on one policy
`to the limits for similar coverage applying to other motor
vehicles.' Wis. Stat. § 632.32(5)(f) (emphasis
added). Here, as in Iaquinta, there are no `other motor
vehicles.' There is only a
single motorcycle and two insureds. Similarly, there are not two
`similar coverage[s]' here; there is a single coverage and multiple
insureds, both of whom are entitled to full and equal protection under
Wis. Stat. § 632.32(3)(a). Section 632.32(5)(f) therefore
does
not overrule Iaquinta or apply to the
situation here" (¶ 11). The court was equally unpersuaded by
the insurer's argument that
a Legislative Reference Bureau comment supported its construction of
the statute
(see ¶¶ 12-14).
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Motor Vehicle Law
Hit and Run - Loss of Control of Vehicle on Highway - Collision
Not on Highway
State v.
Dartez, 2007 WI App 126 (filed 22 March 2007) (ordered
published 26 Apr. 2007)
A criminal complaint alleged that the defendant was intoxicated and
lost control of the car she was driving on a highway. The
car left the road and crashed into the bedroom of a private residence,
killing an occupant of the home. The defendant allegedly left
the scene without rendering aid or identifying herself. The complaint
charged her with being the operator of a vehicle involved in
an accident resulting in the injury or death of another without
immediately stopping at the scene of the accident and
rendering assistance, contrary to the hit-and-run statute.
See Wis. Stat. § 346.67(1). This statute applies on
highways and on a limited
number of nonhighway premises not relevant here. See Wis.
Stat. § 346.66.
The circuit court determined that an "accident" within the
meaning of section 346.67(1) must occur on a highway and that
the facts alleged in the complaint show that the accident occurred off
the highway because that is where the actual collision
occurred. The court therefore dismissed the hit-and-run count of the
complaint. The state appealed.
In a decision authored by Judge Vergeront, the court of appeals
reversed. "We conclude that when, as here, a vehicle is
involved in a collision, the term `accident' in Wis. Stat.
§ 346.67(1) includes, at a minimum, an operator's loss of
control of the vehicle
that results in the collision. Because [the defendant's] loss of
control of the vehicle occurred on the highway, even though the
resulting collision occurred off the highway, we conclude she was
`involved in an accident' `upon a highway' within the meaning of
§ 346.67(1) and Wis. Stat. § 346.02(1).
Accordingly, we reverse the circuit court's order dismissing this
charge" (¶ 20).
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Open Meetings Law
Public Meetings - Closure of Meetings When Competitive or
Bargaining Reasons
Require Closure
State ex rel.
Citizens for Responsible Dev. v. City of
Milton, 2007 WI App 114 (filed 8 March 2007) (ordered
published 26
Apr. 2007)
Citizens for Responsible Development (CRD) brought this action
against the city of Milton, the Milton City Council, and
the Milton Plan Commission (collectively Milton) for allegedly
violating the Open Meetings
Law, Wis. Stat. sections 19.81-19.98. CRD contended that
Milton improperly invoked Wis. Stat. section 19.85(1)(e) as
justification for holding 10 closed meetings to
discuss and negotiate an agreement to build an ethanol plant in
Milton. This statute authorizes closure of a public meeting for the
purpose of "[d]eliberating or negotiating the purchasing of
public properties, the investing of public funds, or conducting other
specified public business, whenever competitive or bargaining
reasons require a closed
session" (emphasis added). The circumstances
under which a government's competitive or bargaining reasons require
a closed session is a matter of first impression.
In a decision authored by Judge Dykman, the court of appeals
concluded that Milton's "competitive or bargaining reasons"
did not require closed sessions for the entirety of its meetings
discussing the proposed ethanol plant
(see ¶ 12). The court was not persuaded by
Milton's argument that the confidentiality request of the entity
proposing to construct the ethanol plant
required Milton to close all discussions about the proposed plant.
"The legislature's choice of the word `require' thus connotes its
intent
to limit the exception under § 19.85(1)(e) to those situations
where the government's competitive or bargaining reasons leave no
other option than to close meetings. Thus, a government may have a
valid reason for desiring to close its meetings that
nevertheless
fails to establish closed meetings are required. While a
private entity with which the government is negotiating might request
confidentiality, and such a request might provide a reason for a
government to desire holding closed meetings, that request does not
require the government to hold closed meetings to preserve the
government's competitive or bargaining interests"(¶ 14).
Among other things the court also rejected Milton's argument that
it was allowed to close all meetings concerning the plant
for fear of losing the project developer to another municipality or
revealing purchase negotiations with the owner of the land on
which the plant would be built. With respect to the latter, Milton
claimed a desire to avoid attracting interest in the land from
other potential buyers. However, the owner was not required to keep
the negotiations confidential. "Possible competition for [the]
land did not justify closed meetings" (¶ 16). Moreover,
even if secrecy somehow deterred competition from other municipalities,
"it
is not apparent that such a reason would support holding closed
meetings" (¶ 17). "We cannot accept the proposition that
a
governing body's belief that secret meetings will produce cost
savings justifies closing the door to public scrutiny"
(id.).
The appellate court agreed with Milton that portions of meetings
that would have revealed its negotiation strategy with
the project builder or its negotiation strategy for the purchase of
land could be closed under Wis. Stat. section 19.85(1)(e).
"Developing a negotiation strategy or deciding on a price to
offer for a piece of land is an example of what is contemplated by
`whenever competitive or bargaining reasons require a closed
session.' See Wis. Stat. § 19.85(1)(e). However, just
because those concerns
were present for portions of some of the meetings does not mean the
entirety of the meetings fell within the narrow exception under
§ 19.85(1)(e). Thus, we do not agree that Milton was justified in
closing all parts of all meetings concerning the
proposed
ethanol plant based on the reasons it has asserted" (¶
19).
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Real Property
Violation of Restrictive Covenants - Injunctive Relief -
Prescriptive Easements
Hall v. Gregory A.
Liebovich Living
Trust, 2007 WI App 112 (filed 14 March 2007) (ordered
published 26 Apr. 2007)
Liebovich purchased lakefront property, tore down the property's
existing house, and built a new house. His neighbors,
the plaintiffs in this action, complained that the new house
violates a restrictive covenant shared by several properties by being
too
close to the lake. The trial court agreed but refused to issue an
injunction ordering Liebovich to tear down the offending part of his
house (the deck) and instead awarded monetary damages to the
neighbors. The court found that tearing down the deck would
cost between $100,000 and $200,000 and would destroy "the
central feature of the
house." This, the court found, would
outweigh any benefit to the plaintiffs from having the offending
portions of Liebovich's house removed. The court did enjoin Liebovich
from further violating the restriction by extending or enclosing his
deck and ordered that if the deck were ever removed, it could not
be rebuilt. The neighbors appealed this remedy, arguing that they
are entitled as a matter of law to have the deck razed. In a
decision authored by Judge Brown, the court of appeals affirmed.
The plaintiffs argued that a court must issue an injunction to
enforce a restrictive covenant unless it finds that the
hardship resulting from an injunction would be extremely
disproportionate to the hardship resulting from no injunction, or
unless, in
addition to a less-than-extreme disproportion of hardships, the
court finds other factors weighing against an injunction. The appellate
court responded that "[t]here is no support for this proposed
`test' in our case law or statutes" (¶ 12). "[T]he grant
or denial of
injunctive relief is a matter for the trial court's discretion. The
court's findings of fact were not erroneous, and it was reasonable on
those
facts to conclude that forcing Liebovich to raze and rebuild would
be inequitable. We reject the [plaintiffs'] attempt to turn a
discretionary decision into a series of minute questions of
law" (¶ 1).
Liebovich, for his part, argued that he and his predecessor had
obtained a "prescriptive right" to violate the deed
restriction.
He relied on Wis. Stat. section 893.28 ("Prescriptive Rights by
Adverse User"). The appellate court refused to apply this statute
to
the situation before it. "We ... reject Liebovich's claim that
he had a prescriptive right to violate the covenant because the statute
he relies on applies only to the adverse use of the land of another
person, not to violations of deed restrictions on one's own land"
(¶ 2).
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Worker's Compensation Law
Death Benefits - Partial Disability
Edward Bros. Inc. v.
Labor & Indus. Review
Comm'n, 2007 WI App 128 (filed 7 March 2007) (ordered
published 26 Apr. 2007)
A worker hurt his back on the job in January 2001 and was deemed
temporarily totally disabled. While still receiving
treatment, he died in September 2003 of unrelated causes. At that
point the worker had not applied for permanent, partial disability
benefits. His dependents sought death benefits under Wis. Stat.
section 102.47(2). An administrative law judge (ALJ) denied the claim,
but the Labor and Industry Review Commission (LIRC) reversed the
ALJ. The circuit court in turn reversed LIRC.
The court of appeals, in an opinion written by Judge Brown,
reversed the circuit court. "The death benefit is a right
belonging to the dependents, and it is separate from the worker's
right to permanent partial disability payments during life. There is
nothing
in the statutes that denies the dependents their death benefit
simply because the worker happens to die too soon" (¶ 1).
"[W]hile
§ 102.51(5) prohibits a dependent from being a party to a
worker's claim for disability benefits, a dependent claiming a
death
benefit is prosecuting only his or her own
claim. This is plain from the language of the statute, but
that is not all; if it were otherwise,
there could be no death benefit ever, since by its very nature (and
by statute) a death benefit can be claimed only by a dependent"
(¶ 10).
"We recognize, as did [LIRC] in its decision below, that
there may be cases in which a worker's death before permanent
partial disability is established could prevent the award
of a death benefit because of proof problems. Where a worker died
without
filing any disability claim at all, for example, or died so soon
after the injury that there could be no realistic assessment of the
injury's long-term effect, it might be impossible to establish what
the permanent partial disability compensation would have been, and thus
what the death benefit should be. However, this is not such a case.
At the time of his death, Vanderzee was very close to, if not at,
his healing plateau, and there was ample evidence to conclude that
he would have had an approximately five percent
permanent functional disability" (¶ 13).
The position advocated by the employer would lead to a
"strange system" in which a "meaningless distinction
based merely
on fate" determined benefits. If such were the case, "a
worker's dependents' death benefit would, incredibly, be extinguished by
the worker's death, if that death occurred in the few days or weeks
before permanent partial disability was conclusively
established; while another worker's dependents would get
benefits simply because the worker happened to die a few days or weeks
after permanent partial disability was established"
(¶ 14).
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Wisconsin Lawyer