Wisconsin
Lawyer
Vol. 81, No. 3, March
2008
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
Criminal Procedure
Jury Trials - Requirement that Defendant Wear Armband Taser Device
- Trial Court's Duty to Inquire as to Necessity of Device
State v.
Champlain, 2008 WI App 5 (filed 5 Dec. 2007) (ordered published
30
Jan. 2008)
The local jail administrator required the defendant to wear an
armband
taser device (a Band-It) during the defendant's jury trial. The Band-It,
a
polypropylene sleeve that fits from just above the wrist to over the
elbow, employs
an electrical discharge similar in principle to a stun belt. The
electronic
box inside the sleeve measures about three inches by six or seven inches
and is
an inch or inch-and-a-half thick. A uniformed court officer wearing an
activator sat directly behind the defendant at the jury trial in case
the unit had to
be activated.
The defendant wore his own clothing at the jury trial, declining
the
jail administrator's offer of a long-sleeved shirt from the jail's
property
collection. The short sleeves of the defendant's polo shirt did not
conceal the
Band-It on his right forearm. When defense counsel noticed the armband
and asked
what it was, his client told him it was "some kind of security
thing." Counsel
did not object to the defendant having to wear the device or otherwise
ask the
trial court to inquire whether the device was necessary. The jury
convicted the
defendant of burglary and obstructing an officer.
On appeal the defendant challenged the propriety of the
armband's use
and, separately, alleged that his trial counsel was ineffective for
failing to
object to his wearing the device in the presence of the jury. In a
decision authored
by Judge Nettesheim, the court of appeals reversed. Applying the
two-prong
test articulated in Strickland v.
Washington, 466 U.S. 668 (1984), the court
agreed with the defendant that his trial counsel was ineffective for
failing to raise
a challenge to use of the armband taser device.
A criminal defendant generally should not be restrained during
the
trial "because such freedom is an important component of a fair and
impartial
trial" (¶ 22) (citation omitted). Said the court, "once
[the defendant] told [his
attorney] that the armband was a type of security device, we cannot
excuse
[defense counsel] for failing to raise the question of whether the
device was
necessary and to ask [that] the trial court make an independent inquiry
on
the matter.... Numerous cases address the potential prejudice inherent
when a
criminal defendant appears before a jury garbed or restrained so as to
imply
guilt. Numerous cases also address that it is for the court, not jail
personnel,
to determine the necessity for the restraint.... Once he learned that
[the
defendant's] armband, at least potentially visible to the jury, was an
electronic restraint, [counsel] had a duty to object or, at a bare
minimum, to request
the trial court to explore the need for the device. We conclude that
[counsel's] professional assistance fell below an objective standard of
reasonableness
such that he did not function as the `counsel' the Sixth Amendment
guarantees"
(¶¶ 26-27) (citations omitted). "[B]ecause we cannot say
with confident
certainty that the visible device did not unfairly prejudice [the
defendant], we hold
that the prejudice prong of Strickland is also satisfied"
(¶ 2).
The court of appeals further held that, despite counsel's
failure to
raise the issue, the trial court had an independent duty to explore the
necessity
of the device once the court became aware of it. "A trial court
maintains the
discretion to decide whether a defendant should be shackled during a
trial as
long as the reasons justifying the restraints have been set forth in the
record.
It is an erroneous exercise of discretion to rely primarily upon law
enforcement department procedures instead of considering the risk a
particular
defendant poses for violence or escape. In addition, whenever a
defendant wears a
restraint in the presence of jurors trying the case, the court should
instruct that the restraint is not to be considered in assessing the
proof and
determining guilt.... The judge alone controls the courtroom and alone
has the
authority and the duty to make a restraint decision" (¶¶
33-34) (citations omitted).
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Search and Seizure - Vehicle Stops - Protective Frisks -
"Furtive
Movements"
State v.
Alexander, 2008 WI App 9 (filed 18 Dec. 2007) (ordered published
30 Jan. 2008)
Two Milwaukee police officers were parked in a specific area of
the
city because of recent complaints that shots had been fired in the area.
They
observed a vehicle go through a red light, and they activated their
squad
car's emergency lights in an attempt to pull the vehicle over. The
vehicle did
not stop immediately but eventually did so after travelling about two
blocks.
During the time the officers followed the vehicle, they noticed three
people in
the car. The front seat occupants were the driver, Brown, and the
defendant, Alexander; the back seat occupant was Winters.
One of the officers stated that he saw Alexander and Winters
making
furtive movements as though each were giving something or receiving
something from
the other. The officer then saw Alexander turn back toward the front of
the car
and lean forward toward the glove compartment. Alexander also appeared
to lean
toward Brown, who lifted herself up as if to allow Alexander to place
something beneath her. After the furtive movements stopped, the car
pulled over. Based
on the furtive movements, the delay in pulling over, the high-crime
area, and
the time of day (9:19 p.m.), the officer believed, based on his prior
experience, that there were weapons in the car. He and his partner
called for backup.
The officers then asked the occupants to exit the vehicle and they
patted down
the individuals. First, they patted down Winters and did not find any
weapons.
Then they asked Alexander to exit; he initially refused. He then
complied, and a
pat-down did not reveal any weapons on Alexander. Then the officers
asked Brown
to exit and patted her down. The officers did not find any weapons but
they
did observe on the driver seat a bottle of air freshener, some papers,
and the
auto manual - items typically kept in the glove compartment. The
officers
then searched the glove compartment of the vehicle and discovered a gun
and a
large amount of cocaine and marijuana (see ¶ 3).
The defendant was charged with possession of cocaine and
marijuana with
intent to deliver. The circuit court denied his motion to suppress this
evidence, and he entered a guilty plea. The circuit court also denied
his
postconviction motion to reconsider the ruling on the suppression
motion, and this appeal
followed. In a decision authored by Judge Wedemeyer, the court of
appeals affirmed.
The question before the appellate court was whether the officer
conducting the protective search had reasonable suspicion to believe
that the subject
of the pat-down was dangerous and may have had immediate access to a
weapon
(see ¶ 8). "We are convinced that the officers in the
instant case had sufficient
particularized facts to raise a reasonable suspicion that the situation
was
dangerous, and that the occupants of the vehicle may have had a weapon.
We base
our decision on the following factors: (1) the officers were in the area
due
to `shots fired' complaints and knew the area to be very violent, with
substantial drug and gun activity; (2) the numerous furtive gestures of
the occupants of
the car observed by the officers before the car stopped; (3) the delay
in
stopping raising the suspicion of the officers that the occupants were
buying time
to hide weapons; (4) the officers' belief that the situation was
dangerous based
on the occupants' actions immediately upon stopping the car; (5) the
items
observed on the driver's seat and the reasonable inferences that could
be drawn
therefrom; (6) the protective search being the first priority over the
traffic
stop; and (7) the trial court's credibility determination" (¶
15).
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HIPAA - Wisconsin Medical Privacy Statute - Suppression of Evidence
Not Proper Remedy for Violations of Health Care Privacy Laws
State v.
Straehler, 2008 WI App 14 (filed 19 Dec. 2007) (ordered
published
30 Jan. 2008)
The defendant was injured when the vehicle she was driving was
involved in
an accident. The officer at the scene did not detect any odor of
intoxicants
coming from her. After the defendant was conveyed to a hospital,
however, a
different officer was informed by a nurse that she and other hospital
staff
members smelled alcohol coming from the defendant and that the defendant
had told
hospital staff that she had consumed alcohol before the accident. With
the
defendant's consent, blood was thereafter withdrawn and analyzed; it was
found
to have an alcohol content level of .119 grams per 100 milliliters of
blood.
The state charged the defendant with operating while intoxicated as a
repeat
offender.
The defendant argued that the release of her confidential health
information by the nurse violated the Health Insurance Portability and
Accountability Act
of 1996 (HIPAA) and the Wisconsin medical privacy statute (Wis. Stat.
§ 146.82)
and that the information should therefore be suppressed. She further
contended
that without this medical information the police lacked probable cause
for a
blood draw and that the results of any chemical test would be
inadmissible. The
circuit court denied the motion to suppress. In a decision authored by
Judge
Anderson, the court of appeals affirmed the circuit court.
With respect to the alleged HIPAA violation, the appellate court
concluded that HIPAA applies to what are known as "covered
entities," but police
officers are not listed as one of the covered entities. Therefore HIPAA
does not
control the conduct of law enforcement officers.
See 45 C.F.R. §§ 160.102(a), 164.104(a).
"Thus, even assuming [nurse] Hagerman disclosed information in
violation of this privacy rule, in urging suppression of the evidence,
[the
defendant] ignores the most obvious limitation of HIPAA: HIPAA and its
accompanying regulations, including the privacy rule, apply to express
`covered
entities': health plans, health care clearinghouses, and health care
providers who
transmit health information electronically. See
45 C.F.R. §§ 160.102(a), 164.104(a)"
(¶ 10). Further, "even if [the detective at the hospital]
was somehow bound
by HIPAA, which we have established an officer is not, HIPAA does not
provide
for suppression of the evidence as a remedy for a HIPAA violation.
Suppression
is warranted only when evidence has been obtained in violation of a
defendant's constitutional rights or if a statute specifically provides
for suppression as
a remedy. [The defendant] does not argue a constitutional
violation and the
statute does not specifically provide for suppression as a
remedy..." (¶ 13)
(citations omitted). The court also concluded that HIPAA does not
preempt Wis.
Stat. section 905.04(4)(f), which provides "[t]here is no privilege
concerning
the results of or circumstances surrounding any chemical tests for
intoxication
or alcohol concentration" (¶ 14).
With respect to the Wisconsin medical privacy statute, the court
held
that section 146.82 applies to patient health care
records. Because the statute only applies to records, the nurse's
verbal statements based on her observations
of the defendant are not protected by it
(see ¶¶ 19-20). Further, section
146.84 provides remedies for violations of section 146.82 but the list
of remedies
does not include suppression of evidence
(see ¶ 14).
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Elder Law
Competence - Attorney-in-Fact - Standing
Winiarski v. Village of
Manor Park, 2008 WI App 7 (filed 4 Dec. 2007)
(ordered published 30 Jan. 2008)
"This case arises out of an unmarried woman's estate
planning" (¶
2). Winiarski prepared a will, a health care power of attorney (HCPOA),
and a
general durable power of attorney (GDPOA) in which he was designated the
"first
named agent" for his client, Florence. Years later Florence entered
a facility,
Village of Manor Park (VMP). VMP later questioned the validity of the
HCPOA
because Winiarski both witnessed the HCPOA and was named as the
representative;
accordingly, VMP petitioned for a guardianship to determine if Florence
was
competent to make her own health care decisions. Winiarski observed the
hearing but
was not permitted to participate or present evidence. The circuit court
found
that Florence was competent and dismissed the petition. Shortly
thereafter,
Florence's adversary counsel informed Winiarski that Florence had
revoked the
HCPOA and the GDPOA and thereby terminated him as her agent. Winiarski
"conceded"
that he agreed to this "unconditional termination," and he
gave the keys and
documents to Florence's new agent. Winiarski then appealed the
determination
that Florence was competent.
The court of appeals, in an opinion written by Judge Kessler,
dismissed
the appeal because Winiarski lacked standing. "[B]ecause
Winiarski's standing
derives from his agency under the GDPOA, when Winiarski conceded at oral
argument that he had accepted Florence's termination of his agency, he
would only
be entitled to appeal on her behalf if he reserved the right to do so at
the
time of his termination as agent. As he conceded at oral argument that
he did
not reserve the right to do so, we must determine whether Winiarski's
failure
to reserve a right to appeal upon his termination as Florence's agent
under
the GDPOA constituted a waiver that deprives him of standing to make
this appeal"
(¶ 13). "Because Winiarski is a lawyer, and the drafter of the
GDPOA, we can
infer that he had constructive knowledge of his rights and
responsibilities as
an agent under the GDPOA. By his acknowledgement at oral argument that
he did
not reserve his right to appeal on Florence's behalf the court's finding
that
she was competent when he consented to his termination as her agent
under the
GDPOA, we may also infer that Winiarski voluntarily and intentionally
waived
that right" (¶ 15).
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Employment Law
WERC - Jurisdiction to Hear Case Involving Demotion during
Promotional Probationary Period
Kriska v. WERC,
2008 WI App 13 (filed 11 Dec. 2007) (ordered published 30
Jan. 2008)
In 1995 petitioner Kriska was hired by the Wisconsin Department
of
Corrections (DOC) as a correctional officer. In 2001 he was promoted to
the
position of lieutenant (supervising officer 1) (SO 1). He successfully
completed
the probationary period associated with that promotion and acquired
permanent
employee status in the SO 1 position. In 2005 Kriska was promoted to
captain
(supervising officer 2) (SO 2). This position required a 12-month
probationary period. During that probation, Kriska received notice that
his promotional
probationary period for captain was being terminated because he
allegedly
violated various work rules, and that he was being returned to his
lieutenant position
at that corresponding rate of pay. Kriska appealed from the dismissal,
alleging that he was denied his right to a just cause determination.
The Wisconsin Employment Relations Commission (WERC) denied the
appeal
after determining that it lacked subject matter jurisdiction over
appeals of
probationary termination decisions in a situation in which the employee
is serving
an initial probationary period and thus does not have the
"permanent status
in class" required by Wis. Stat. section 230.44(1)(c). This statute
provides
as follows: "If an employee has permanent status in class
the employee may
appeal a demotion, layoff, suspension, discharge or reduction in base
pay to the
commission, if the appeal alleges that the decision was not based on
just
cause." The circuit court affirmed WERC's decision. In an opinion
authored by
Judge Wedemeyer, the court of appeals affirmed the circuit court.
The issue on appeal was whether WERC erred in determining that
it
lacked subject matter jurisdiction to hear Kriska's appeal from the
DOC's
termination of his probationary period for the captain position and
returning him to
the lieutenant position (see ¶ 7). Based on the plain
language of the statutes
and the administrative code, together with the existing case law, the
appellate court concluded that WERC did not have jurisdiction to hear
Kriska's appeal.
"We hold that under the facts and circumstances of this case, DOC's
termination
of Kriska's probationary period for the SO2 position does not fall under
Wis.
Stat. § 230.44(1)(c), as DOC returned Kriska to his pre-promotion
position and did
not adversely affect his permanent status rights in that position.
Moreover,
the administrative code clearly permits dismissal `[a]t any time during'
the
probationary period without the right to an appeal. Wis. Admin. Code
§ ER-MRS
14.03. Accordingly, we affirm the decision of the circuit court,
affirming WERC's
determination that it lacked subject matter jurisdiction in this
case" (¶ 15).
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Restrictive Covenants - Privacy
H&R Block v.
Swenson, 2008 WI App 3 (filed 20 Dec. 2008) (ordered published
30 Jan. 2008)
Six former employees of H&R Block left the company in 2004
and set up
their own bookkeeping and tax service. The former employees had been
with H&R
Block for periods ranging from 10 years to 25 years. H&R Block
brought this
action alleging that the former employees had breached restrictive
covenants in
their employment contracts. The circuit court struck down the clauses as
invalid.
The court of appeals, in a decision authored by Judge Vergeront,
affirmed. Restrictive covenants are viewed under the following canons:
"(1) they are
prima facie suspect; (2) they must withstand close scrutiny to pass
legal muster
as being reasonable; (3) they will not be construed to extend
beyond their
proper import or further than the language of the contract absolutely
requires;
and (4) they are to be construed in favor of the employee"
(¶ 14). The court particularly focused on contract language that
extended
the two-year period of restrictions by the "period(s) of any
violation." It
held that "the extension provision makes the duration of the
restraints
unreasonable for two independent reasons. First, if we accept H&R
Block's proposed
construction, we do not understand how this provision is to be applied
in the context
of the two restrictive clauses here, which deal with providing services
to
company clients and soliciting those clients. What constitutes a
`one-day' violation?
Is it any day in which there is any contact with a company client for
whom one
of the listed services is being provided? Does the violation then extend
until
the service is completed for that client? If there are contacts with
different
company clients on one day for the purposes of providing the listed
services
does that count as a one day violation, the same as if there were
contact with
only one company client in a day? These questions, unanswered by the
contract
terms, mean that a former employee cannot tell from the terms of his or
her
contract how long the extension will be for particular conduct in
violation of the
clauses. Second, there may be legitimate disputes between a former
employee and
H&R Block over whether particular conduct violates the clauses. An
employee will
not know until the dispute is resolved by a court whether the conduct is
or is not
a violation. Only then will the employee know if there is an extension
and
how long it is. The effect of the extension provision thus makes the
duration of
the restraint not a fixed and definite time period but a time period
that is
contingent upon outcomes the employee cannot predict" (¶¶
19-20).
The court also addressed a counterclaim brought by the former
employees
in which they alleged that H&R Block had violated their privacy
rights provided
by Wis. Stat. section 995.50(2)(b). The counterclaim involved H&R
Block's
allegedly inadvertent use of their names after their employment had
ended. The
parties' dueling affidavits, however, created disputed issues of
material fact that
precluded summary judgment for either party on the counterclaim.
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Evidence
Other Acts - Computer Pornography - Greater Latitude
State v.
Normington, 2008 WI App 8 (filed 21 Nov. 2007) (ordered
published
30 Jan. 2008)
The defendant was convicted of sexually assaulting and causing
great
bodily harm to a person with mental disabilities. The defendant was the
victim's
caretaker. The state contended that he assaulted the victim with a
toilet
plunger and caused life-threatening internal injuries. At trial the
state
introduced evidence of pornography on the defendant's computer that
depicted somewhat
similar acts.
The court of appeals, in an opinion written by Judge Vergeront,
affirmed.
The case is noteworthy for its application of other-acts evidence
doctrine to
computer pornography and for applying the "greater latitude"
standard "if the
victim functions at the level of a child due to disabilities" and
regardless of
the victim's chronological age (¶ 19). The opinion features a
meticulous,
case-intensive application of the Sullivan
(State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998))
three-step test (used to determine whether prior acts of
a defendant are admissible) to the "object insertion"
pornography that the
state introduced to prove the penetration here was intentional, not
accidental.
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Family Law
Termination of Parental Rights - Meaningful Participation -
Technology
Waukesha County Dep't of
Health & Human Servs. v. Teodoro
E., 2008 WI App 16
(filed 19 Dec. 2007) (ordered published 30 Jan. 2008)
The circuit court terminated the parental rights of Teodoro E.
to two
children. Teodoro could not personally attend the hearings because he
had been
deported to Mexico. The county department and Teodoro's lawyer devised a
webcam system that permitted Teodoro to see and hear the proceedings in
the
courtroom while permitting the local participants to see and hear him.
The court of appeals, in an opinion written by Chief Judge
Brown, affirmed
in a three-judge appeal that was ordered to underscore the importance of
the
issues, especially the use of technology to provide a meaningful
opportunity
to participate. First, the circuit court properly found that the webcam
system allowed Teodoro to follow and understand the proceedings, unlike
a
"simple telephone setup" that was criticized in a prior case
(¶ 15). Second, the
procedures did not deprive Teodoro of effective assistance of counsel.
"The record
shows that Teodoro could consult privately with his attorney. Moreover,
his
attorney was physically present in the courtroom. Thus,
there was
nothing
preventing the court from keeping an eye on either Teodoro or his
counsel" (¶ 19).
The court then turned to, and rejected, Teodoro's substantive
claims.
First, the conditions he failed to meet were not "impossible."
"[A]s the circuit
court noted, `Mexico is not prison' and Teodoro remained free to work on
and meet
many of the conditions of return. As an example, the first condition,
`Show that
you are interested in your child,' includes subparts that deportation
should
not have prevented Teodoro from meeting, such as `[t]alk to doctors,
teachers,
therapists and other people who care for your child to learn what your
child
needs [and] [p]ay child support on a regular basis.' The trial court
found
that Teodoro did neither of these things, either in Mexico or earlier
when he was
in Waukesha; indeed, during the time that his wages were being garnished
to
pay child support, he sometimes asked for and received the money back
from the
children's mother" (¶ 23). The court also rejected claims
based on the
department's alleged "bad faith" and the circuit court's
alleged abuse of discretion in
terminating Teodoro's parental rights.
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Real Property
Condominium Law - Bylaw Restriction Limiting Occupancy to Unit
Owners
Apple Valley Gardens
Ass'n Inc. v.
MacHutta, 2007 WI App 270 (filed 28 Nov. 2007) (ordered
published 19 Dec. 2007)
Apple Valley Gardens Association, a condominium owners'
association, sued
the defendants to enforce an amended bylaw requiring owner occupancy of
condominium units. The original condominium declaration did not contain
this limitation;
it was added several years later by an amendment to the bylaws. On
cross-motions for summary judgment, the circuit court ruled in favor of
the association.
On appeal the defendants argued, among other things, that 1) the
bylaw
amendment is unenforceable because Wis. Stat. section 703.09(1)(g)
(2005-06)
requires that all use restrictions be recorded in the condominium
declaration; and
2) such rental restrictions make the title unmarketable, in violation of
Wis.
Stat. section 703.10(6) and Bankers Trust Co. of California, N.A. v.
Bregant, 2003 WI App 86, 261 Wis. 2d 855, 661 N.W.2d 498. In a
decision authored by
Judge Nettesheim, the court of appeals affirmed.
Wis. Stat. section 703.09(1)(g) requires the declaration to
contain a
statement of intended purpose and use restrictions, section 703.10(3)
permits
the bylaws to contain use restrictions, and section 703.10(1) directs
that
unit owners "shall comply strictly" with the bylaws, the rules
adopted
thereunder, and any amendments to them (see ¶ 16). The court
of appeals agreed with
the circuit court that "nothing in the declaration prohibited the
Association
from amending the bylaws to require owner occupancy. [The declaration]
provided
that each unit owner `shall abide by and be subject to' all duties and
obligations arising under the Association's bylaws, rules and
regulations of the
Association, and empowers the Association to make reasonable rules and
regulations governing the use of the units. Reading the declaration,
bylaws and
statutes together, we conclude that the amendment was permissible and is
enforceable"
(¶ 18).
The appellate court further concluded that the owner occupancy
restriction does not violate Wis. Stat. section 703.10(6), which
provides that bylaws
cannot render unmarketable or otherwise affect a condominium unit title.
It also
found that the Bankers Trust decision, which concluded that a
bylaw restriction
cannot be used to block a transfer of title, addresses a situation
distinguishable
from that in the present case. "The Association here is not
attempting to block
a sale but to enforce a use restriction against a current owner. While
this
particular use restriction may negatively affect a unit's appeal to some
potential buyers, it does not render the title `unmarketable' in the
full legal sense
of that term. An unmarketable title is one which is not transferable.
Restricting further leasing of a unit does not affect an owner's right
to alienate his
or her property; it affects only the use of the unit" (¶ 21)
(citations omitted).
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Taxation
Estate - Gifts - Contemplation of Death
Wisconsin Dep't of
Revenue v. Estate of
Schweitzer, 2008 WI App 2 (filed 6 Dec. 2007) (ordered published
30 Jan. 2008)
The court described the following stipulated facts. "Ott E.
Schweitzer
died on November 4, 2003. His will was admitted into informal
administration in
probate court on December 19, 2003. Prior to his death, Schweitzer made
gifts
of $119,000 in January 2003 and $390,000 in September 2003. These gifts
were
properly reported to the Internal Revenue Service (IRS) on U.S. Gift Tax
Return
Form 709. For purposes of this appeal only, the personal representatives
of Schweitzer's Estate (the Estate) concede that the gifts were made in
contemplation of his death"
(¶ 2). The estate also filed returns with the IRS and the
Wisconsin
Department of Revenue (DOR). The DOR asserted that the 2003 gifts should
have been added
to the gross estate, which meant that the estate owed $45,000 in estate
taxes
and interest (see ¶ 3). The estate challenged the assessment
in court, and the
judge ruled that the DOR lacked authority to add gifts made in
contemplation of
death (see ¶ 5).
The court of appeals, in an opinion authored by Judge
Higginbotham,
affirmed. "The sole question presented on appeal is whether the
statutes authorize DOR
to add gifts made in contemplation of death to the gross estate when
calculating
an estate's Wisconsin estate tax liability" (¶ 7). In essence,
"the gross
estate subject to Wisconsin estate taxes is the federal taxable estate.
DOR's
attempt to tack on gifts made in contemplation of death to the federal
taxable
estate, which serves as the gross estate for purposes of calculating the
Wisconsin
estate tax, is therefore contrary to the plain language of the statute,
which taxes only property that is subject to a federal estate tax"
(¶ 13).
"Because DOR's interpretation of Wis. Stat. §§ 72.01 and
72.02 would result in a
total Wisconsin estate tax that is greater than the federal credit
against the
federal estate tax, and not `equal to the federal credit against the
federal
estate tax,' it is contrary to the plain language of § 72.02.
Stated differently,
any construction of these statutes that results in a calculation of the
Wisconsin estate tax that is not equal to the federal tax credit for
state death taxes
is inconsistent with the plain language of § 72.02" (¶
14).
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Torts
Medical Malpractice - Borrowed Employee - Caps
Phelps v. Physicians
Ins. Co., 2008 WI App 6 (filed 4 Dec. 2007) (ordered
published 30 Jan. 2008)
The case stemmed from the remand of Phelps v. Physicians
Insurance
Co., 2005 WI 85. An unlicensed resident doctor, Lindemann,
negligently treated a
patient who was pregnant with twins. One twin died during delivery. The
prime issue
on remand was whether Lindemann was a "borrowed employee" of
the hospital.
The circuit court found that he was and capped various damage awards in
keeping
with recent case law.
The court of appeals, in an opinion written by Judge Curley,
reversed in
part and affirmed in part. Lindemann was clearly an employee of the
Medical
College of Wisconsin Affiliated Hospital (MCWAH) and the only issue was
whether
his service at the hospital rendered him a "borrowed
employee." Applying the
prolix "borrowed employee" test from prior cases, the court
concluded that the test
had not been met. "There is no evidence that Dr. Lindemann left
MCWAH's
employment and agreed to become a St. Joseph's employee. Dr. Lindemann
provided
medical services similar to those provided by private physicians who are
not St.
Joseph's employees. MCWAH directed which hospital Dr. Lindemann worked
at and
paid him. Dr. Lindemann and MCWAH had a written contract, and MCWAH had
the
sole right to terminate him. MCWAH never relinquished any control over
Dr.
Lindemann. Indeed, as noted, while at St. Joseph's no hospital employee
supervised
Dr. Lindemann, and Dr. Lindemann was never given a handbook or any rules
setting
out St. Joseph's procedures. Thus, the right to control Dr. Lindemann
remained
in the hands of MCWAH's program director, MCWAH senior residents and
private
physicians. Finally, Dr. Lindemann's services benefitted the patients of
the
hospital and the private physicians but most of all, Dr. Lindemann's
work aided MCWAH
in its mission to train first-year residents in order to become licensed
physicians" (¶ 31).
Finally, because Lindemann was not a borrowed employee, his
conduct was
not subject to the caps on damages as provided by Wis. Stat. chapter 655
(because unlicensed, first-year residents were not otherwise
"protected" by chapter 655).
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