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.

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Appellate Procedure

Finality - Timeliness

Laube v. City of Owen, No. 96-2717 (filed 13 Feb. 1997)(ordered published 25 March 1997)

The Laubes brought an action under Chapter 32 of the Wisconsin Statutes challenging the city's right to condemn their property. In September 1995 the circuit court agreed with them and also awarded them litigation expenses. The order provided that the court would decide the amount of the award if the parties could not agree. The city did not appeal that order. In a separate July 1996 order, the court set the litigation expense award. The city filed a timely appeal from the July 1996 order, stating that it was appealing from the July 1995 order as well.

The Laubes moved to dismiss that part of the city's appeal relating to the September 1995 order. The court of appeals, per curiam, granted the motion to dismiss. The September 1995 order was final. Nothing in prior case law suggested that "the finality of an order on the merits depends on the kind of analysis that will be necessary to resolve the [attorney] fee issue."

Attorney Fees

Timeliness - Prevailing Party - Civil Rights Actions

Hartman v. Winnebago County, No. 96-0596 (filed 5 Feb. 1997) (ordered published 25 March 1997)

In 1990 plaintiffs began a class action lawsuit against the county regarding welfare benefits. In this, the third appeal, the court addressed whether the plaintiffs were entitled to attorney fees. The circuit court found that the plaintiffs' motion was not timely and that they were not the "prevailing parties" in the lawsuit.

The court of appeals, in an opinion written by Judge Anderson, reversed. First, the motion was filed in a timely manner. The case was brought under 42 U.S.C. section 1988. Motions for attorney fees are deemed timely under section 1988 except where the affected party is unfairly surprised or prejudiced by the motion. No such showing was made in this case. The court also held "that sec. 806.06(4), Stats., does not govern the time limits for application for attorney's fees." (Emphasis added.) Attorney fees under section 1988 present issues "related to but separate from the underlying action."

Moreover, public policy strongly opposes an approach requiring that the petition for attorney fees be filed prior to the entry of judgment. Case law instead supports the opposite approach of encouraging parties to file such motions only after appeal. Finally, the court summarily rejected the claim that the timeliness of the motion was governed by Federal Rule of Civil Procedure 54(d), which has no application to state court cases.

The court also ruled that the plaintiffs were the "prevailing party" in the underlying litigation. This determination rested upon the court's close reading of the tangled five-year history of this case and related litigation.

Criminal Procedure

PSI Report - Conflict of Interest - Sentencing

State v. Suchocki, No. 96-1712-CR (filed 4 Feb. 1997)(ordered published 25 March 1997)

The defendant pled no contest to one count of possession with intent to deliver and two counts of simple possession of marijuana. A presentence investigation report (PSI) was prepared by an agent of the Division of Corrections who also was married to the Kewaunee County District Attorney, "who was the prosecutor in this case." When he learned of the relationship, the defendant moved to strike the PSI and for an order directing another agent to prepare a PSI. He also alleged that the agent was biased against him because of his homosexuality. The trial court denied the motion and sentenced him.

The court of appeals, in an opinion written by Judge Myse, affirmed. First, the trial judge properly concluded that the agent was not actually biased against the defendant because of his homosexuality. He never contested the "objective information" in the PSI and the judge found that the subjective portions were "reasonable" and "uninfluenced by his sexual preference." The judge also ruled that the defendant's sexual preference was irrelevant to the sentencing process. Moreover, the judge's ultimate sentence tracked more closely to the defendant's own recommendation than that of the PSI writer.

As to the second issue, the court agreed that the marital relationship demonstrated bias and that a biased agent should not prepare a PSI. "Requiring any defendant to demonstrate that the marital relationship actually influenced the writer's impression and recommendations would present an insurmountable hurdle to any defendant attempting to challenge a PSI." Bias was implied as a matter of law. There was, however, no evidence that the sentencing process was "improperly influenced" by the PSI. In particular, the judge delayed sentencing to allow the defense to prepare its own PSI and when sentencing him focused upon the defendant's own conduct in these offenses.

Evidence - Electronic Surveillance - One-party Consent -
"Plain Hearing" Doctrine

State v. Gil, No. 95-3347-CR (filed 5 Feb. 1997)(ordered published 25 March 1997)

Police set up electronic monitoring equipment in a hotel room in which their informant was supposed to sell drugs to a "target." At the time of the sale, the target and the defendant attacked the informant, who was shot several times. The defendant was charged with conspiracy to sell drugs, attempted robbery and attempted homicide. The defense argued that section 968.29(3)(b) of the Wisconsin Statutes barred use of the electronic recordings to prove the homicide and robbery (that is, the nondrug) counts. The trial judge ruled, however, that the prosecution could introduce the surveillance tapes as proof of all three counts. The defendant later entered an Alford plea to the attempted homicide charge and challenged the trial court's evidentiary ruling on appeal.

The court of appeals, in an opinion written by Judge Brown, affirmed. Under the law then in effect, section 968.29(3)(b) of the Wisconsin Statutes provided that police could use one-party consent recordings only if the defendant was "accused of any act constituting a felony under ch. 161 or s. 939.30 or 939.31." Judge Brown carefully reviewed the legislative and case law history of Wisconsin's electronic surveillance law. It agreed with the trial judge that a strict application of the statutory language led to an absurd result that benefitted a defendant because he chose to attempt to rob and kill a person instead of just buying the drugs from him. The court also observed that the Legislature has since modified this statutory language to allow such one-party consent recordings in cases involving "a felony." See 1995 Wis. Act 30, 1.

The court of appeals also adopted the "plain-hearing" rule, which is an analogue to the "plain view" doctrine governing search and seizure. The rule provides that where officers who are conducting authorized electronic surveillance "inadvertently" obtain unauthorized evidence, the evidence is nevertheless admissible.

Judge Anderson concurred but wrote separately to argue that section 971.31(10) of the Wisconsin Statutes did not preserve this error for appeal.

Parole - Mandatory Release - Electronic Monitoring

State ex rel. Macemon v. McReynolds, No. 96-0064 (filed 12 Feb. 1997) (ordered published 25 March 1997)

The issue in this case was whether the Department of Corrections may require an inmate eligible for mandatory release to wear an electronic monitoring bracelet as a condition of parole. In a decision authored by Judge Brown, the court of appeals concluded that the department may place such a restriction on a prospective mandatory release parolee.

The statute establishing the mandatory release of certain individuals plainly describes how an inmate set for such parole "is subject to all conditions and rules of parole." See Wis. Stat. 302.11(6). The administrative rules that set forth the "rules of parole" authorize the use of electronic monitoring for mandatory release parolees such as the defendant. Nothing in the Statutes prevents the department from using electronic monitoring in these circumstances.

Persons Serving NGI Commitments - Imposition of Prison Sentence on Another Charge Before Expiration of NGI Commitment

State v. Szulczewski, No. 96-1323-CR (filed 13 Feb. 1997) (ordered published 25 March 1997)

In 1975 the defendant was found not guilty of murder and attempted murder by reason of mental disease or defect (NGI). He was committed to the Department of Health and Social Services. In 1995, while still serving his NGI commitment, he was found guilty by a jury of violating section 940.20(1) of the Wisconsin Statutes (a felonious battery offense) for injuring another NGI acquittee at the Mendota Mental Health Institute. He was sentenced on the latter charge to five years in prison and ordered immediately transferred to the Department of Corrections for appropriate placement.

Before the court of appeals the defendant argued that the circuit court had no authority to order the prison sentence on the battery conviction to be concurrent with the NGI commitment or to order that the battery sentence commence immediately.

The state conceded that it was improper for the sentencing court to order the prison sentence on the battery conviction to be "concurrent with" the NGI commitment because the prior commitment is not a "sentence." Since the battery sentence could not be imposed "concurrent with" the NGI commitment, the focal issue on appeal was whether the sentencing court could order the criminal sentence to commence immediately, notwithstanding the fact that the defendant had not yet been discharged from his prior NGI commitment.

In a decision authored by Judge Deininger, the court of appeals concluded that the immediate commencement of the prison sentence for the battery conviction was authorized by section 973.15 of the Wisconsin Statutes. This statute is clear on its face that "except as otherwise provided in this section, all sentences commence at noon on the day of the sentence." No exception is made in section 973.15 for persons subject to commitment under the NGI statute. The only exceptions in the statute are for stays granted for legal cause, for probation or for not more than 60 days. Accordingly, the circuit court did not err when it ordered the defendant's prison sentence for battery to commence immediately, notwithstanding his status as an NGI acquittee.

Employment Law

WFEA - Mitigation of Damages - Scope of Review

U.S. Paper Converters Inc. v. LIRC, No. 96-2055 (filed 4 Feb. 1997)(ordered published 25 March 1997)

USPC terminated Bodoh's employment. An administrative law judge (ALJ) later determined that Bodoh had been wrongfully terminated because she had been pregnant. She was awarded back wages and benefits, but USPC alleged that she had failed to mitigate her damages with reasonable diligence. Specifically, following termination by USPC Bodoh had been hired as a probationary employee by another company, but was fired when she accumulated more than two absences during her first five weeks of employment. The ALJ agreed that Bodoh failed to exercise reasonable diligence but the LIRC reversed the ALJ. LIRC concluded that USPC failed to meet its burden of proof on the reasonable diligence issue: Bodoh adequately explained her absences and the excuses were reasonable. The circuit court affirmed the LIRC.

The court of appeals affirmed in an opinion written by Judge LaRocque. The first issue concerned the appropriate standard of review. USPC argued that the court should review the issue as one of first impression (that is, de novo review) because LIRC had not previously addressed the reasonable diligence standard in this context. The court held, however, that LIRC's decision was entitled to "due weight" because of the agency's experience in interpreting the statute in other factual scenarios. Applying this standard, the court held that LIRC's conclusion was reasonable. Bodoh's termination by the second employer after three absences did not constitute failure to mitigate "as a matter of law" under the Wisconsin Fair Employment Act (WFEA). LIRC properly looked at Bodoh's excuses for the three absences and properly concluded they were reasonable. The court declined "to adopt any per se rules regarding what constitutes reasonable diligence within the meaning of sec. 111.39(4)(c), Stats."

Insurance

Exclusions - Intentional Acts - Sexual Abuse - Severability

Jessica M.F. v. Liberty Mut. Ins. Co., No. 95-3547 (filed 18 Feb. 1997)(ordered published 25 March 1997)

A grandfather allegedly sexually assaulted his grandchildren, the plaintiffs, who sued him and the grandparent's homeowner's insurers. The circuit court granted summary judgment to the insurers, finding no coverage based upon policy exclusions.

On appeal the plaintiffs did not contest the intentional-acts exclusion based upon the grandfather's conduct. Rather, they argued that the grandmother was negligent in that she should have known about the grandfather's deviant behavior and acted to protect the grandchildren. Thus, plaintiffs argued that the grandmother's negligence was not precluded by the intentional-acts exclusion.

The court of appeals, in an opinion written by Judge Schudson, disagreed and affirmed the trial judge. The opinion includes a clear, comprehensive summary of Wisconsin case law regarding the intentional-act and sexual abuse exclusions. The case law identified two "principles of a policy-holder's reasonable expectations": "1) that one who purchases homeowner insurance does not contemplate coverage for sexual misconduct committed by one's child; and 2) that one who purchases homeowner insurance would not want to share that type of risk (and the increased premiums that would result), with other homeowner's policyholders." These principles applied "with equal force" where one's spouse commits the sexual assault.

The court also ruled that the "severability of interest" clause did not mandate a different result. A grandmother who knew or should have known about her spouse's sexually abusive conduct was not the "innocent" insured identified in other cases finding that the severability clause preserved coverage.

Judge Schudson filed a separate concurring opinion outlining public policy considerations that buttressed the court's determination. Judge Wedemeyer also concurred separately to state that it was unnecessary for the court to address public policy rationales.

 

Juvenile Law

Double Jeopardy - Sanctions - Waiver to Adult Court

Craig S.G. v. State, No. 96-0761 (filed 19 Feb. 1997) (ordered published 25 March 1997)

The defendant was adjudicated delinquent for criminal damage to property and placed on formal supervision for a year. As a condition of supervision, he was not to have any further law violations. However, police executed a search warrant for his home and found him and two other individuals in the process of dividing 100 grams of marijuana. As a result, the state filed both delinquency and waiver petitions; it also requested the imposition of sanctions for his violation of the prior dispositional order.

A sanctions hearing was held; the defendant admitted the violation; and the juvenile court imposed a sanction of 10 days secure detention. The sanction, however, was stayed and the defendant was allowed an opportunity to purge two days per week for five weeks. He successfully completed this purge and did not serve any time in secure detention.

A waiver hearing subsequently was held and the state's petition for waiver was granted. The defendant appealed the waiver, contending that because of the earlier imposition of sanctions by the juvenile court for the same offense, the waiver into adult court subjected him to double jeopardy.

The court of appeals, in a decision authored by Judge Snyder, disagreed. The court began its analysis by noting that double jeopardy bars additional punishment and successive prosecutions for the same offenses. There was no dispute in this case that the defendant's actions that led to the charged crime of possession with intent to deliver a controlled substance resulted in both a sanction by the juvenile court and the waiver into adult court. However, the pivotal and controlling question was whether the sanction imposed by the juvenile court was punishment and the appellate court concluded that it was not. The order for secure detention was used "to coerce the defendant to comply with the condition stated in the court's dispositional order" in the prior delinquency case. The court used the sanction to achieve a five-week period of compliance, and presumably to assist the defendant in beginning a pattern of conforming his behavior to that required by the dispositional order. The sanction did not operate as a punishment and therefore waiver into adult court on the controlled substance charge did not subject him to double jeopardy.

In footnote the court observed that it did not reach the question of whether the imposition of a straight 10 days of secure detention could be punitive rather than remedial in its application. The court chose to follow its reasoning in State v. B.S., 162 Wis. 2d 378, 469 N.W.2d 960 (Ct. App. 1991), that the sanctions statute is not intended to punish and it coupled that holding with the application of the sanction in this case to reach the conclusion summarized above.

Open Records Law

Dog Impoundment Records - Wis. Stat. section 174.046(4)

State ex rel. Schultz v. Wellens, No. 96-0415 (filed 11 Feb. 1997) (ordered published 25 March 1997)

The Wisconsin Society for the Prevention of Cruelty to Animals (WSPCA) submitted an open records request under section 19.35 of Wisconsin's open records law to the Wisconsin Humane Society for all dog impoundment records maintained by the Humane Society over a three-year period. The Humane Society denied the request on the grounds that it was not an "authority" required to disclose records under the open records statute. WSPCA thereafter commenced a mandamus action asserting that the documents are public records as provided for in section 174.046(4) of the Wisconsin Statutes and are therefore subject to public access under the open records statute.

The circuit court concluded that "although the petitioners have a right to seek dog pound records that are designated 'public' under sec. 174.046(4), Stats., they must also do this within the disclosure requirements of the open records law" [which the trial court determined did not authorize disclosure of the requested records].

The court of appeals, in a decision authored by Judge Schudson, reversed. As applicable to this case, section 174.046 provides that "a county board may designate a humane society or other organization to provide a pound for strays or unwanted dogs in the county." It was undisputed that the Wisconsin Humane Society is such a society. The statute goes on to provide that certain records are to be maintained by the pound and that these records are public records. WSPCA argued that the open records law must not be read to preclude disclosure of records that the Legislature has specifically designated as "public records," even though the Humane Society is not an "authority" required to disclose under the open records law.

The court of appeals agreed. It found that there is nothing in the history of the open records statute that would suggest the Legislature intended to repeal or reduce the operation of section 174.046 and its provision that dog pound records are public records.

In footnote the court observed that, although public access to the dog pound records is required under section 174.046(4), nothing either in that statute or in the open records law would foreclose use of the open records law procedures for the production of the requested documents. In fact, the court noted that when this matter was before the circuit court, WSPCA conceded that it would "have to follow the procedures in Wisconsin's open records law."

Wisconsin Lawyer