Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
This column summarizes all decisions of the Wisconsin Supreme Court
(except those involving lawyer or judicial discipline, which are
digested elsewhere in the magazine). 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.
Appellate procedure
Denial of Claims of Qualified Immunity by State Officials -
Interlocutory Review Mandatory
Arneson v. Jezwinski, Nos.
95-1592-LV and 95-2l50 (filed 20 Dec.
1996)
This case was before the supreme court on certification from the
court of appeals. The sole issue on certification was under what
circumstances the court of appeals should grant a petition for
interlocutory appeal from a circuit court order denying a state
official's claim of qualified immunity in a 42 U.S.C. section 1983
action. (In this case the denial occurred in response to the defendants'
motion for summary judgment which, as the court has previously held, is
the appropriate stage in the proceedings for addressing and resolving
issues of qualified immunity.)
Pursuant to its constitutional superintending power over lower state
courts, the supreme court directed the court of appeals to grant every
petition for interlocutory appeal from a circuit court order denying a
state official's claim of qualified immunity, so long as the circuit
court order is based upon an issue of law, such as whether the federal
right allegedly violated was clearly established at the time the action
was taken. (The defendant must of course initiate the appeal within the
time specified in section 808.04 of the Wisconsin Statutes.) The court
of appeals should grant such petitions as a matter of course because
they will always fall within the criteria for granting interlocutory
appeals specified in section 808.03(2)(a) and (b) of the Wisconsin
Statutes.
Said the supreme court, when the court of appeals denies a petition
for interlocutory appeal of a denial of qualified immunity, a state
official is left with no other adequate remedy. Although the official
could raise qualified immunity on appeal after the circuit court enters
a final order, this is not a sufficient remedy because the official will
lose the primary benefit of qualified immunity if the case wrongly
proceeds.
Chief Justice Abrahamson did not participate in this decision.
Civil procedure
Jurisdiction - Authenticated Summons - Publication - No
Prejudice
Burnett v. Hill, No. 94-2011
(filed 24 Jan. 1997)
The circuit court dismissed Burnett's claim against Hill for lack of
personal jurisdiction. The court of appeals affirmed, ruling that
Burnett's failure to authenticate the summons served by publication was
a fundamental error that deprived the trial court of personal
jurisdiction.
The supreme court, in an opinion written by Justice Geske, reversed
the court of appeals. Burnett had mailed an unauthenticated copy of the
publication summons and authenticated copies of the original summons and
complaint to Hill's last known address and business address by certified
and first class mail. The typed copy of the publication summons did not
contain the case number assigned by the court clerk. Hill did, however,
acknowledge receipt of those documents by signature.
The sole issue was whether Burnett "effectively served Hill by
successfully mailing an unauthenticated publication summons together
with authenticated copies of the original summons and complaint."
Unquestionably, the failure to authenticate the summons constituted a
defect in service. The only question was whether it was a fundamental
error or a technical error under American Family Mut. Ins. Co. v. Royal
Ins. Co. of America, 167 Wis. 2d 524 (1992), and later cases. The court
held that the mailing of the unauthenticated copy of the publication
summons along with authenticated copies of the original summons and
complaint fulfilled the purpose of sections 801.02(3)(a) and
801.11(1)(c) of the Wisconsin Statutes even though the procedure was not
in strict compliance with those statutes. Thus, the error was
"technical." The court further held that as a matter of law Hill was not
prejudiced by Burnett's error. Three of the four documents served on
Hill contained the case number designated by the clerk of court. All
four informed Hill of Burnett's action against him and that a response
was necessary.
In closing, the supreme court warned lawyers that "slipshod and
haphazard attempts to serve" parties are not sufficient. The court urged
lawyers to strictly comply with statutory procedures.
Constitutional law
Wisconsin Retirement System - Special Investment Performance
Dividend Legislation - Unconstitutional Taking - Attorney Fees - "Common
Fund" Doctrine
Wisconsin Retired Teachers Association
Inc. v. Employee Trust Funds Board, No. 94-0712 (filed 17 Jan.
1997)
The plaintiffs in this case were the State Engineering Association,
the Wisconsin Retired Teachers Association and the Wisconsin Education
Association Council. In their class action the plaintiffs challenged the
constitutionality of legislation (1987 Wis. Act 27, sections 436m, 684r
and 688km) concerning the Wisconsin Retirement System (WRS), which is
the retirement system for public employees. Under this legislation,
earnings on the WRS trust fund assets of certain annuitants are used to
pay supplemental benefits that are not a commitment of the WRS trust
fund. Only annuitants who retired before Oct. 1, 1974, receive the
supplemental benefits. The purpose of the legislation was to reduce
funding of the supplemental benefits from the state's general purpose
revenue.
In a unanimous decision authored by Justice Bradley, the supreme
court concluded that the provisions of Act 27 cited above and its
implementation constitute a taking of the plaintiffs' property without
just compensation, in violation of Article I, section 13 of the
Wisconsin Constitution. Accordingly, the court ordered the secretary of
the Wisconsin Department of Administration and the state treasurer to
replenish the Wisconsin Retirement System fixed annuity reserve in an
amount equal to all funds paid out of the account pursuant to Act 27,
plus interest at the effective rate.
Among other things the court also determined that the plaintiffs were
entitled to reasonable attorney fees to be paid out of the recovery
under the "common fund" doctrine. Wisconsin ordinarily adheres to the
"American Rule" requiring litigants to pay their own attorney fees.
Generally, a court may require a losing litigant to reimburse the
prevailing party's attorney fees only when expressly authorized by
statute or contract. The court noted that it had not previously adopted
the common fund doctrine in Wisconsin, though it noted that the doctrine
has been widely used elsewhere to deal with the "free rider" problem
inherent in class actions. The court concluded that the common fund
doctrine was applied appropriately in this case. By recovering funds
paid from the annuity reserve under Act 27, the attorneys for the
plaintiffs were vindicating the property rights of all annuitants, not
just those of the members of the three plaintiff groups.
Governor's Veto Power - Monetary Figures
- Appropriation Amounts
Risser v. Klauser, No.
96-0042-OA (filed 31 Jan. 1997)
This was an original action brought by several state legislators and
a taxpayer. They sought a declaration that the Governor's write-in veto
of a monetary figure in section 57 of 1995 Assembly Bill 557, an omnibus
bill setting forth the transportation budget, exceeded his
constitutional authority.
The supreme court, in an opinion written by Chief Justice Abrahamson,
declared that the "governor's write-in veto may be exercised only on a
monetary figure in an appropriation amount and that the monetary figure
in the second sentence of section 57 of 1995 A.B. 557 is not an
appropriation amount." The court declined to abandon its longstanding
bright-line rule because the rule "affords the Legislature and the
governor the ability to predict the consequences of their actions and to
guide their conduct accordingly without the intercession of the judicial
branch. ... The large volume of veto litigation is not a sign of a
healthy discourse on state constitutional law."
Justice Crooks, joined by Justices Steinmetz and Wilcox,
dissented.
Contempt
Remedial Contempt Motions Brought by Government - Right to
Counsel
State v. Pultz, No. 94-2806
(filed 20 Dec. 1996)
The primary issue in this case was the constitutional due process
right to appointed counsel for an indigent defendant in a remedial
contempt action brought by the government. A unanimous supreme court, in
a decision authored by Justice Geske, held that the defendant has a due
process right to appointed counsel at public expense in this type of
proceeding if he or she is unable to afford counsel.
To assure that the defendant who faces a threat to liberty at a
contempt hearing is properly advised of the right to appointed counsel
if he or she is found indigent, the circuit court must take the
initiative. It must engage in a colloquy that clearly conveys the
existence of this right to the defendant. Further, the court must
inquire whether the defendant believes that he or she is indigent.
Before the court proceeds on a contempt motion, it should advise a
pro se defendant that, if he or she is found to be in contempt, the
court could impose sanctions that may include the defendant having to
spend time in jail. The court also must instruct that the defendant is
entitled to be represented by an attorney. If the defendant wants an
attorney but is financially unable to pay for a lawyer, the court must
advise the defendant that an attorney will be appointed at public
expense. (If the defendant states that he or she cannot afford counsel,
a determination of indigency must be undertaken.) The circuit court must
be satisfied that the defendant understands these rights and must make
the necessary findings based upon the defendant's answers and any other
evidence the court receives. If the defendant wants to obtain counsel,
the court should give him or her a reasonable time either to retain
counsel or, if indigent, to receive appointed counsel before proceeding
on the contempt motion.
Criminal law
Sexual Assault - Insufficient Evidence -
Jury Instructions - "Sexual Intercourse"
State v. Wulff, No.
95-1732-CR (filed 30 Jan. 1997)
The defendant was convicted of attempted second-degree sexual
assault. The victim was an acquaintance whom Wulff agreed to walk home.
According to the victim, when they returned to her apartment she
rebuffed his advances but allowed him to sleep the night on her living
room couch. She fell asleep in her own bedroom, partially clothed. The
victim testified that when she awoke she was completely naked and the
defendant was sitting on top of her. She screamed as the defendant
attempted to place his penis in her mouth. The defendant left her,
saying, "Nothing happened, don't worry." The defendant testified to a
very different version of events. He said, in effect, that after
returning to the apartment the victim passed out, that he later awakened
her to say goodbye, and that she became disoriented and confused because
she was intoxicated.
The state charged Wulff with attempting to have sexual intercourse
with the victim while she was unconscious. The jury instructions,
however, did not recite the complete definition of "sexual intercourse"
in section 940.225(5)(c) of the Wisconsin Statutes, defining it only as
"any intrusion, however slight, by any part of a person's body or of any
object, into the genital or anal opening of another."
The supreme court, in an opinion written by Justice Steinmetz,
reversed the conviction because there was insufficient evidence to
support the charge described in the instructions. Double jeopardy
precludes any retrial. In closing argument the prosecutor advanced three
theories: Attempted sexual contact, attempted sexual intercourse by
vulvar penetration, and attempted sexual intercourse by fellatio. The
judge's instructions, however, described "a single version of sexual
intercourse - genital or anal intrusion." The court's review of the
record revealed that the state had failed to introduce sufficient
evidence of attempted genital or anal intercourse. The failure to
instruct on fellatio meant that the jury could not legally base its
guilty verdict upon that theory of liability
Criminal procedure
Competency to Stand Trial - Burden of Proof -
Standard of Review
State v. Garfoot, No.
94-1817-CR (filed 4 Feb. 1997)
Garfoot was charged with attempted sexual assault. At the request of
Garfoot's lawyer, the judge ordered a competency examination pursuant to
section 971.14 of the Wisconsin Statutes. An expert examined Garfoot and
concluded that he "would not ever be able to participate meaningfully in
a criminal trial because of his developmental disability." Garfoot could
recall facts but could not relate them to the legal proceedings in a way
that could assist his attorney. Garfoot also was "unable to make
informed decisions, could not grasp the implications of a decision
whether or not to testify, and would not be able to communicate with his
attorney about testimony that may be inaccurate." The state's appointed
expert testified Garfoot was "marginally competent" to stand trial. The
judge decided that the state failed to meet its burden of proving by the
greater weight of the credible evidence that Garfoot was competent to
stand trial. At a later hearing, the judge dismissed the criminal
complaint because it was unlikely that Garfoot would regain competency
within the statutory time period.
The court of appeals reversed. It applied a de novo standard of
review that considered, among other things, "Garfoot's abilities with
reference to the trial likely to take place" and the court's power to
modify the proceedings to assist Garfoot.
The supreme court, in an opinion written by Justice Steinmetz,
reversed the court of appeals. A reviewing court must apply a "clearly
erroneous" standard of review because the trial court is in the best
position to weigh all the evidence necessary to make a competency
determination. Only the trial judge, for example, can view the
defendant's behavior and demeanor in the courtroom. Moreover, the trial
judge is in a far better position to evaluate witnesses' credibility.
The court applied the clearly erroneous standard to the evidence
contained in the record.
Wisconsin adheres to the two-part "Dusky-standard": A person may not
stand trial unless he or she has the capacity to understand the nature
and object of the proceedings against him or her, to consult with
counsel, and to assist in preparing his or her own defense." Mental
retardation alone can render a defendant incompetent "if the condition
is so severe as to render him incapable of functioning in critical
areas." The trial judge's decision was not clearly erroneous on this
record.
Chief Justice Abrahamson, joined by Justices Geske and Bradley,
concurred but disagreed with the majority's statement of the standard of
appellate review. The clear and convincing standard should be reserved
for questions of "historical fact." The "ultimate finding of competency"
involves more than historical facts. The competency determination
presents a finding of constitutional fact much the same as the
voluntariness of a confession. Appellate courts are entitled to make
independent determination of constitutional facts.
Justice Bablitch joined the majority but filed a separate concurring
opinion. He conceded that the Chief Justice presented a "fairly
persuasive case" but declined to join it because the parties had failed
to adequately brief the issue.
Drug Tax Stamp Law - Privilege Against Self-incrimination
State v. Hall, No. 94-2848-CR
(filed 24 Jan. 1997)
The supreme court, in an opinion written by Justice Bablitch,
declared unconstitutional the drug tax stamp law ("the stamp law"),
sections 139.87 through 139.96 of the Wisconsin Statutes (1991-92),
because it violated the privilege against self-incrimination. The stamp
law required "dealers" to purchase tax stamps and affix them to their
illegal drugs. The case raised three issues.
First, section 139.89 compelled drug dealers to incriminate
themselves under the test announced in Marchetti v. United States, 390
U.S. 39 (1968). The stamp law was directed at an area "permeated with
criminal statutes" and at individuals "inherently suspect of criminal
activities." The "affix and display" portion of the stamp law placed
dealers under reasonable apprehension that they might be providing
incriminating information to prosecutors. Affixing and displaying the
stamp "is an incriminating testimonial communication that the dealer
knowingly and intentionally possesses a particular quantity of unlawful
drugs." Knowledge or belief that a substance is "controlled" constitutes
an element of the crime that the state must prove. Finally, the
incriminating information provided a significant link in a chain of
evidence tending to establish guilt.
Second, the stamp law failed on its face to provide drug dealers with
"protection as broad as the protection offered by the privilege against
self-incrimination." Although the stamp law provided some protection, it
failed to completely protect against "derivative" use of the
incriminating information.
Third, the supreme court held that it could not "save" the
unconstitutional statute by construing the stamp law to provide both
direct and derivative use immunity. The Legislature had carefully
drafted the stamp law in its present (unconstitutional) form. The court
could not rewrite the stamp law under guise of construing it.
Justice Wilcox, joined by Justices Steinmetz and Crooks, dissented.
The dissent argued that the majority misconstrued the legislative
history of the stamp law and failed "in its duty to preserve the
statute." Properly construed, the stamp law could be "saved" by
providing protection coextensive with the Fifth Amendment privilege.
Based upon the holding in State v. Hall, the court summarily reversed
and remanded two other related cases:
1) State v. Hicks, No.
94-2542-CR (filed 24 Jan. 1997) (which raised a standing issue that the
court declined to reach); and
2) State v. Dowe, No.
95-0314-CR (filed 24 Jan. 1997) (raising a double jeopardy argument that
the court declined to reach).
Municipal law
Master Plans - Official Maps
Lake City Corporation v. City of
Mequon, No. 94-3240 (filed 30 Jan. 1997)
In 1977 Lake City Corporation purchased land in Mequon, Wis. Seven
years later it petitioned Mequon to rezone the property to allow
construction of numerous duplex structures and single family homes. The
Mequon Common Council voted to rezone the property in substantially the
manner requested.
In 1992 Mequon began the process of comprehensively revising its
master plan and zoning ordinances due to growth in the city. As this was
transpiring, developers began submitting plans for dormant projects to
the Mequon Plan Commission in an attempt to gain approval before Mequon
completed the revision of its master plan and zoning ordinances.
Lake City was one such developer. It had taken no affirmative steps
to develop its property since 1984, when Mequon had rezoned it as
requested. In 1993 it applied for preliminary plat approval but the
matter was tabled until the Plan Commission considered a resolution
proposing to amend Mequon's land use map, or comprehensive zoning plan,
contained in Mequon's master plan. The amendment was approved by the
Plan Commission, which then voted to deny Lake City's request for
preliminary plat approval, because the proposed plat conflicted with the
newly adopted amendment to the master plan.
Lake City commenced this action in circuit court pursuant to section
236.13 of the Wisconsin Statutes. Among its provisions this statute
provides that "approval of the preliminary or final plat shall be
conditioned upon compliance with ... any local master plan which is
consistent with any ... official map adopted under s. 62.23." The
circuit court concluded that the Plan Commission had authority to deny
Lake City's application for plat approval based upon the newly enacted
amendment to the master plan. The court of appeals reversed the circuit
court holding that under the statute quoted above, a local master plan
is consistent with an official map only to the extent the master plan
reflects issues encompassed in the official map. The appellate court
held that the Plan Commission improperly denied preliminary plat
approval to Lake City on the grounds that the plat conflicted with an
element contained only in the master plan.
A unanimous supreme court, in a decision authored by Justice Crooks,
reversed the court of appeals. It concluded that, under the statute
quoted above, a master plan is consistent with an official map if any
common elements contained in both the master plan and official map are
not contradictory. It further concluded that a master plan is consistent
with an official map even if the master plan contains additional
elements that the official map does not. Accordingly, it held that a
city plan commission may rely upon an element contained solely in a
master plan to reject plat approval.
Applying this holding to the present case, the supreme court
concluded that the Plan Commission had the authority to deny approval of
Lake City's proposed preliminary plat, because this plat conflicted with
Mequon's newly revised master plan.
Remedies
Damages - Attorney Misconduct - Evidentiary Hearings
Chevron Chemical Co. v. Deloitte &
Touche LLP, No. 94-2827 (filed 23 Jan. 1997)
The supreme court in Chevron Chemical Co. v. Deloitte & Touche,
176 Wis. 2d 935 (1993) (hereinafter, Chevron I), ordered a judgment
against Deloitte because of attorney misconduct. The case was remanded
for "a hearing on damages" which was "to be treated as it is in typical
default judgment cases." On remand the parties fought over whether the
trial judge had discretion regarding the form of the hearing or was
obligated to conduct an evidentiary hearing - in effect, a bifurcated
trial on damages. The trial court ruled that it had discretion to
determine damages without an evidentiary hearing. The court of appeals
reversed, concluding that a "typical default judgment case" necessitated
an evidentiary hearing.
The supreme court, in an opinion written by Chief Justice Abrahamson,
reversed the court of appeals. Neither the remand order in Chevron I nor
the authority cited in that order mandated an evidentiary hearing. The
order left to the circuit court's discretion the proper form of the
damages hearing. The supreme court agreed with the trial judge that "the
grant of a new evidentiary hearing would leave Chevron in position of
Pyrrhus, whose victories over the Roman army were achieved at an
excessive cost. Like Pyrrhus, Chevron would have cause to complain: 'One
more such victory and I am lost.'"
Wisconsin
Lawyer