Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
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.
Attorneys
Legal Malpractice - Criminal Practitioners - Experts Necessary -
Issue Preclusion
Pierce v.
Colwell, No. 96-1075 (filed 5 March 1997; ordered published 29
April 1997)
The trial court dismissed a legal malpractice action against an
attorney. The complaint alleged that the lawyer negligently represented
the plaintiff in a criminal proceeding. The alleged negligence occurred
when the lawyer "failed" to object to the criminal court's "competency"
based upon an omission to read the information to him at the
arraignment.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed the grant of summary judgment. Under the facts of this case,
the plaintiff was obligated to present some expert testimony to sustain
the claim of the lawyer's negligence: A lay person could not be expected
to understand how negligence could arise from the failure to read an
information at arraignment where the defendant received a fair trial and
was represented by counsel at all stages. (The lawyer he sued
represented him only at the sentencing, not the arraignment.) Moreover,
proceedings conducted after an "imperfect arraignment" are not invalid
absent prejudice.
Although the court affirmed on the summary judgment issue, it
rejected the argument that issue preclusion also blocked the plaintiff's
malpractice complaint. The arraignment issue had been rejected in a
prior appeal in the criminal case. But case law required criminal
defendants to demonstrate their claims by clear and convincing evidence.
Since this civil case carried only the ordinary preponderance burden
(that is, a lower standard of proof), issue preclusion did not
apply.
Criminal Procedure
Peremptory Strikes - Gender Discrimination
State v.
Jagodinsky, No. 96-2927-CR (filed 26 March 1997; ordered
published 29 April 1997)
The defendant was convicted of violating a harassment injunction
regarding his former girlfriend. During voir dire the prosecutor used
all four peremptory strikes to remove male jurors from the venire panel.
The defendant's trial counsel argued that the prosecutor was engaging in
gender discrimination but the trial judge overruled the objection.
The court of appeals, in an opinion written by Judge Brown, reversed
and remanded. Prior case law establishes that the intentional "use" of
gender (or race) violates the right to an impartial jury under the
Fourteenth Amendment. The defendant established a prima facie case of
gender discrimination: The defendant was a male and the prosecutor used
all of his challenges to remove males from the panel. Once a prima facie
case is shown, the burden shifts to the prosecutor (in this case) to
demonstrate a sufficient gender-neutral explanation for his strikes.
Relying upon Supreme Court decisions, the court formulated the following
rule: A lawyer "defending an allegation that his or her peremptory
strikes were used for discriminatory reasons must offer something more
than a bald, but otherwise credible, statement that other nonprohibited
factors were considered. Rather, he or she must demonstrate how there is
a nexus between these legitimate factors and the juror who was struck."
The prosecutor's explanation fell short of this standard. Thus, the
defendant was entitled to a new trial.
Insurance
Subrogation - UIM Coverage - Subrogation Disallowance
Kulekowskis v. Bankers
Life and Cas. Co., No. 96-0613 (filed 12 Feb. 1997; ordered
published 29 April 1997)
The Kulekowskis's son was killed in a one-car accident. The driver's
insurer paid its limits. The Kulekowskis then sued their insurer,
American Family, based upon their UIM coverage. Bankers Life, the
Kulekowskis's health-care insurer, filed a subrogation claim based upon
the payment of various medical bills and expenses. The trial judge
granted summary judgment in favor of Bankers Life.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. Bankers Life had a clear contractual right of subrogation. Its
policy provided that the insurer had a right of reimbursement whether
the insured collects "through a lawsuit, settlement or otherwise."
(Emphasis original.)
Next, the court considered American Family's subrogation exclusion
clause. Prior case law construing both UM and UIM coverage holds that
"if the insurer who is seeking subrogation has a policy which
'functionally recites' the preservation of its subrogation rights
without any time limitation, such language will prevail over subrogation
exclusion language in a conflicting policy." In this case, the Bankers
Life policy stated that the insured was required to "take no action
prejudicing such rights" and contained no time limitation. The court
rebuffed American Family's efforts to distinguish the earlier cases.
Mental Health
Mental Health Act -"Patients Rights" Statute
Schaidler v. Mercy Medical
Center, No. 96-0645 (filed 19 March 1997; ordered published 29
April 1997)
The plaintiff sued a medical center after she was "admitted" pursuant
to an emergency detention order. The circuit court dismissed all of her
claims.
The court of appeals, in an opinion written by Judge Snyder, affirmed
in part and reversed in part. Section 51.61 of the Wisconsin Statutes
sets forth the "Patients Rights" of mental health patients admitted to a
treatment facility. The trial judge ruled that the plaintiff failed to
establish a nexus between any statutory violation and some harm to her.
The court of appeals held that under section 51.61(7)(a) "a patient
whose rights have been violated and who has suffered damages as a result
may bring action."
Patients are entitled to $100 exemplary damages for each violation
plus recovery for any damages as may be proved along with costs and
attorney fees. But in the alternative, section 51.67(b) "provides for a
cause of action which does not require that a plaintiff suffer or be
threatened with actual damages; however, the plaintiff suing under this
paragraph must prove that the individual or institution 'willfully,
knowingly and unlawfully' violated this section." The defendant conceded
certain "technical violations" but the parties failed to focus on the
distinction between subsection (a) and (b) of section 51.67(7). The
court remanded the case for further proceedings on whether there is a
factual dispute with respect to a subsection (b) claim.
The court of appeals also addressed other issues under chapter 51 as
well as claims sounding in negligence and false imprisonment. These
discussions are case-specific and raise no novel questions of fact or
law.
Wisconsin
Lawyer