Other
Significant Decisions
Highlights of the 1996 Wisconsin Supreme Court and
Court of Appeals Decisions
By Daniel W. Hildebrand
Constitutional Law
Thompson v. Craney 1 was an original action brought to determine the
constitutionality of parts of 1995 Wis. Act 27, the budget bill,
creating a State Education Commission (SEC), a State Department of
Education (DOE) and the position of State Secretary of Education (SOE).
The Wisconsin Supreme Court concluded that the Act unconstitutionally
gives former powers of the elected State Superintendent of Public
Instruction (SPI) to other appointed officers at the state level not
subordinate to the SPI.
In holding the Act unconstitutional, the court discussed the history
of ArticleX of the Wisconsin Constitution, which stated that the
supervision of public instruction shall be vested in a state
superintendent and such other officers as the Legislature shall direct.
Parties offered differing interpretations of the words "supervision,"
"vested" and "other officers." Resorting to the history of ArticleX,
Section1, the court concluded that the constitution's drafters intended
that the public schools were to be under the supervision of the SPI and
that the SPI was to be an elected, not appointed, public official. The
position of the SPI was a necessary position, separate and distinct from
the "other officers" referenced in ArticleX, Section1. These "other
officers" were not intended to be co-equal to or supervisory over the
SPI. Rather, these "other officers" would be local or clerical
officials, subordinate to the SPI. The constitutional difficulty with
1995 Wis. Act 27 is that it gives the power of supervision of public
education to an "other officer" instead of to the SPI.
In Joni B. v. State 2 the supreme court considered another provision of
1995 Wis. Act 27, which provided that a trial court "may not appoint
counsel for any party other than the child in a CHIPS
proceeding."3 The court held that the
prohibition violated Wisconsin's separation of powers doctrine and the
due process clause of the Fourteenth Amendment.
Under the separation of powers doctrine, the executive, legislative
and judicial branches are prohibited from intruding upon another's "core
zone of exclusive authority." In those areas representing shared
authority, the Legislature is prohibited from unreasonably burdening or
substantially interfering with the judicial branch. Although the
Legislature possesses power to budget state finances, the subject matter
of the Legislature impermissibly intruded upon the court's powers. A
flat prohibition on the appointment of counsel for anyone other than the
child clearly intrudes upon judicial authority and unreasonably burdens
and substantially interferes with the judicial branch's inherent power
to appoint counsel to effect the efficient administration of justice.
When a parent in a CHIPS proceeding obviously needs the assistance of
counsel to ensure the integrity of that proceeding, the court cannot be
legislatively denied the right to appoint counsel, thereby placing the
individual judge in the untenable position of having to essentially
serve as counsel for that parent. In such cases, appointment of counsel
may be necessary in the interests of the court to require an orderly and
fair presentation of a case.
The section also violated due process. A parent's interest in the
companionship, care, custody and management of his or her children is an
important interest that warrants protection. The right to raise one's
children is an essential right. Although a CHIPS proceeding would not
necessarily result in the permanent severance of parental rights, the
interest of a parent who may be affected by a CHIPS hearing are far from
minimal. CHIPS proceedings can result in placement of children in foster
care for extended periods, and that may form a legal reason for later
termination of parental rights. Fundamental fairness requires that a
circuit judge be given the discretion to determine what due process
requires on a case-by-case basis.
Judicial Disqualification
In State v. Harrell 4 the supreme court held that a circuit court judge,
whose spouse is an assistant district attorney in the same county, is
not required to disqualify himself or herself from criminal cases under
statutes prohibiting a judge from hearing a case when a close relative
is counsel for either party or when the judge determines that he or she
cannot act in an impartial manner. 5 In this
case, the judge's wife was an assistant district attorney but had no
involvement in the criminal case pending before the judge.
The court interpreted the word "counsel" to apply to government
attorneys only as to the attorney of record and any other attorneys who
appear or participate in the case. It did not include a government
attorney who happens to be employed in the same county office or
governmental department. The special characteristics of government
attorneys make it unlikely that the judge's relationship with an
uninvolved attorney would affect impartiality. The prosecutor has no
financial interest in the outcome of the case. The reputational interest
without the financial interest is not enough to create even the
appearance of partiality. Since the assistant district attorney neither
appeared nor involved herself in the preparation of the case, the judge
was not required to disqualify himself. Furthermore, the judge clearly
made a subjective determination regarding his ability to proceed with
impartiality. Under a prior decision, 6 the
court had adopted a subjective standard for determining whether to
disqualify for appearance purposes.
Torts
In Gould v. American Family Mut. Ins.
Co. 7 the supreme court considered
the issue of liability of an institutionalized person who was suffering
from Alzheimer's disease. The case arose out of an injury sustained by a
worker at the institution.
Reviewing prior case law, the court affirmed the rule that mentally
disabled adults are held responsible for the torts they commit
regardless of their capacity to comprehend their actions. Despite their
disability, they are held to an objective reasonable person standard.
Adoption of a different rule would make it very difficult to draw any
satisfactory line between mental deficiency and those variations of
temperament, intellect and emotional balance which cannot, as a
practical matter, be taken into account in imposing liability for
damages.
Even though the jury determined that the defendant was causally
negligent, the court denied recovery because allowing recovery would
place an unreasonable burden on the negligent tortfeasor. When a
mentally disabled person injures an employed caretaker, the injured
party can reasonably foresee the danger and is not innocent of the risk
involved. By placing a mentally disabled person in an institution, those
interested in that person's estate are not likely to be in need of an
inducement for greater restraint.
Kleinke v. Farmers Coop. Supply &
Shipping 8 arose out of the removal
of a fuel oil tank from plaintiffs' basement and the subsequent pumping
of 300 gallons of fuel oil directly into the basement. In addition to
suffering property damage, the plaintiffs allegedly suffered severe
emotional distress and depression from being forced to abandon their
home of more than 42 years.
The supreme court upheld the dismissal of plaintiffs' claim for
negligent infliction of emotional distress on public policy grounds.
Emotional distress based solely upon property damage is the type of
injury that usually will be wholly out of proportion to the culpability
of the negligent party. Allowing recovery would place an unreasonable
burden on the negligent actors in property damage cases. These persons
already are liable for the cost of the damage to the property. Also,
allowing recovery in such cases creates the possibility of future
fraudulent claims. The greater a plaintiff's attachment or sentimental
feeling towards the property in question, the greater his or her claim
for damages could be. Finally, allowing recovery in such cases would
remove any logical stopping point to a tortfeasor's liability.
Insurance
In DeChant v. Monarch Life Ins.
Co. 9 the supreme court held that
attorney fees and bond premiums incurred by a plaintiff in prosecuting a
breach of contract and insurance bad faith action constituted
compensable damages for bad faith arising out of the insurer's denial of
a disability claim. The court based its decision upon the tort of
first-party bad faith. If an insurer fails to deal in good faith with
its insured by refusing, without proper cause, to compensate an insured
for a loss covered by the policy, such conduct gives rise to a claim in
tort for bad faith. If an insurer breaches a duty created by an
insurance contract, the insured will incur economic harm when it becomes
necessary to bring an action against the insurer.
The insurer's bad faith forced the insured to retain an attorney to
litigate his rights to policy benefits. The fees incurred for that
service were expended to obtain benefits that were wrongfully withheld
in bad faith. The fact that the fees claimed as damages were incurred in
the very lawsuit from which recovery was sought does not violate the
general requirement that parties bear their own costs of legal
representation. Unless an insured is able to recover fees and other
damages in such a situation, the bad faith denial of policy benefits
will expose him or her to numerous uncompensable harms.
Open Records
In Woznicki v. Erickson
10 the district attorney conducted a
criminal investigation pursuant to which he acquired Woznicki's complete
personnel file from his employer and personal telephone records. Upon
the conclusion of the investigation, the district attorney concluded
that such records were "public records" and determined to release those
records to the public. Woznicki brought this action to prevent their
release.
The supreme court concluded that the broad definition of public
record defines a record as any material on which information is recorded
or preserved or created or is being kept by an authority. 11 However, reputational and privacy interests that
are inherent in such records mean that special public policy questions
are raised when a district attorney chooses to release materials
gathered during the course of a criminal investigation. Therefore, the
district attorney's decision to release these records is subject to de
novo review by the circuit court. Although the open records law does not
explicitly provide a remedy for an individual whose records have been
acquired by the district attorney during the course of an investigation,
a review of the statutes and case law provides an implicit remedy to
prevent the release of those records to protect privacy and reputations
of ordinary citizens.12 Absent judicial
review, plaintiff's interests in privacy and reputation would be
meaningless.
In this case, the plaintiff has a unique and significant interest in
attempting to persuade a court that his personnel and telephone records
should remain closed. The district attorney, as the secondary custodian
of these records, might well have not considered all of the competing
public interests that must be considered prior to the release of those
records. Courts repeatedly have held that the balancing of the public
interests for and against disclosure present questions of law that can
be reviewed by a court. Therefore, a district attorney cannot release
these kinds of records without first notifying the individual involved
and allowing a reasonable amount of time for the individual to appeal
that decision to the circuit court. In a concurring opinion, Justice
Bablitch accused the dissenters of engaging in a cold legal analysis
that does not touch real life. Privacy and reputation are precious
commodities.
Justices Abrahamson and Bradley dissented arguing that precedent was
overturned by allowing a noncustodian of records the power to determine
whether public records should be closed. They accused the majority of
contravening the language, spirit and purpose of the open records law
that explicitly states that requesters have the right to inspect all
public records. The majority's broad and undefined invocation of privacy
and reputational interests could foreshadow a dramatic erosion of the
open records law. Finally, there might well be administrative
difficulties. Although privacy and reputational interests are important,
the majority's decision neglects another core value and that is insuring
that the government is open and accountable to the people it serves.
Family Law
In In re Marriage of Joshua K.
v. Nancy K.13 the Wisconsin Court
of Appeals held that a minor was not entitled under section803.09(1) of
the Wisconsin Statutes to intervene with independent counsel in a
post-divorce custody dispute in which he alleged that his rights and
well-being are at risk and where his guardian ad litem advocates a
result opposed to his own request. In upholding the denial of the
minor's motion, the court held that section767.045(4) of the Wisconsin
Statutes fulfills the child's right to be heard upon the issue of
custody and physical placement. The guardian ad litem fulfills the
entitlement of a child to representation in a divorce proceeding. The
court's cryptic opinion did not explain why a guardian ad litem who
represents the concept of the child's best interests was an adequate
substitute for counsel who would advocate the child's interest nor did
the court explain why the minor, as a party, was not entitled under
section803.09(1) to intervene with independent counsel before the
circuit court in a post-divorce custody dispute.
Municipal Law
In DeRosso Landfill Co. v. City of
Oak Creek 14 the supreme court
held that a solid waste facility exempt from regulation under
section144.44(7)(g) of the Wisconsin Statutes need not comply with a
preexisting municipal ordinance prohibiting that facility from being
opened. The plaintiffs had negotiated with the DNR which had approved
filling the site with clean fill. However, the city, having
environmental concerns, had ordered that the site could not be filled
with clean fill.
The court held that the city's ordinance was preempted. Even though
the city's local interests and concerns with the protection of its
residents was important, the court concluded that the Legislature has
expressly withdrawn the power of municipalities to act because the
legislation provided that certain facilities may be exempted from local
approval. When the DNR held pursuant to its regulations that the site
was exempt, this did not restore the city's preexisting authority to
regulate. Furthermore, the DNR order approving the establishment of a
clean fill facility contains provisions regarding how that facility is
to be constructed and operated. It was the DNR's responsibility to
ensure that the facility does not compromise the integrity of the
environment or the health of the city's residents. The city's ordinance
defeated the purpose of the state legislation and violated the spirit of
the Legislature's complex and comprehensive and statutory structure
regulating waste.
Criminal Law
In State v.
Lindsey 15 the appeals court
upheld the constitutionality of section 939.62(2m)(b) of the Wisconsin
Statutes, Wisconsin's "three-strikes" law mandating life imprisonment
without parole for third-time serious felony offenders. Lindsey was
convicted of second-degree sexual assault of a child as a persistent
repeater. His two prior strikes were a 1981 conviction for armed robbery
and a 1987 conviction for two counts of sexual intercourse with a child.
The court held that the sentence did not constitute cruel and unusual
punishment. The inherent gravity of the offense and harshness of the
penalty do not raise the inference of gross disproportionality. Nor did
the legislation violate the separation of powers doctrine. The
Legislature has the power to prescribe sentences, and there is no
inherent power of the judiciary to absolutely determine the nature of
the punishment. There was no denial of equal protection because statutes
imposing a more severe punishment for a second or subsequent offense
invariably have held not to constitute a denial of equal protection of
the laws.
In State v. Harris16 the supreme court held that passengers have
standing to challenge the illegal search of a vehicle. In this case, a
vehicle was parked in front of the home of a robbery suspect who did not
own a car. There was no testimony that the driver of the vehicle
violated any traffic laws or handled the car in an erratic fashion. When
the car pulled away from the curb, plainclothes officers stopped its
travel by blocking the car with their unmarked vehicle. The driver and
the passengers were arrested. Harris, a passenger, was found to be in
possession of marijuana.
|
Daniel W. Hildebrand is a member of DeWitt, Ross & Stevens S.C.,
Madison. He is a former president of the Dane County Bar Association and
of the State Bar of Wisconsin.
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The court held that Harris had standing to contest the search. After
considering other authority, the court adopted a bright-line rule that
passengers detained in the course of a search of an automobile are
subject to a "seizure" which triggers Fourth Amendment protections. Both
the Fourth Amendment and ArticleI, Section11 of the Wisconsin
Constitution guarantee the right of the people to be secure in their
person. There is no exception dependent upon the location of the persons
seized. Restriction upon a freedom of movement amounts to a seizure. It
is important to adopt a bright-line rule to avoid the necessity of
considering whether the officer's conduct was not so intimidating that a
reasonable person in the defendant's position would have believed that
his or her freedom of movement had been restricted in any meaningful
way. The court concluded that the seizure was not reasonable.
Endnotes
1 199 Wis. 2d 674, 546 N.W.2d 123
(1996).
2 202 Wis. 2d 1, 549 N.W.2d 411
(1996).
3 Wis. Stat. section 48.13
delineates the court's jurisdiction over children alleged to be in need
of protection or services, known as CHIPS actions.
4 199 Wis. 2d 654, 546 N.W.2d 115
(1996).
5 Wis. Stat. §§
757.19(2)(a) and (g).
6 State v. American TV &
Appliance, 151 Wis. 2d 175, 443 N.W.2d 662 (1989).
7 198 Wis. 2d 450, 543 N.W.2d 282
(1996).
8 202 Wis. 2d 138, 549 N.W.2d 714
(1996).
9 200 Wis. 2d 559, 547 N.W.2d 592
(1996).
10 202 Wis. 2d 178, 549 N.W.2d
699 (1996).
11 Wis. Stat. §§
19.32(1) and (2).
12 See, e.g., Wis. Stat.
§§ 895.50 and 19.85(1). See also Armada
Broadcasting Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357
(1994).
13 201 Wis. 2d 655, 549 N.W.2d
494 (Ct. App. 1996).
14 200 Wis. 2d 642, 547 N.W.2d
770 (1996).
15 203 Wis. 2d 423, 554 N.W.2d
215 (Ct. App. 1996).
16 206 Wis. 2d 242, 557 N.W.2d
245 (1996).
Wisconsin Lawyer