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    Wisconsin Lawyer
    August 01, 1998

    Wisconsin Lawyer August 1998: Supreme Court Digest

    Supreme Court Digest

    By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    | Constitutional Law | Courts | Criminal Procedure | Employment Law | Family Law | Insurance | Torts |


    Constitutional Law

    School Choice - Constitutionality of Amended Milwaukee Parental Choice Program

    Jackson v. Benson, No. 97-0270 (filed 10 June 1998)

    In 1989 the Wisconsin Legislature enacted the original Milwaukee Parental Choice Program (MPCP). As amended in 1993, the MPCP permitted up to 1.5 percent of the student membership of the Milwaukee Public Schools (MPS) to attend at no cost to the student any private nonsectarian school located in the city of Milwaukee, subject to certain eligibility requirements.

    In 1995, as part of the biennial budget bill, the Legislature amended the MPCP in several ways. The limitation that participating private schools be "nonsectarian" was removed. Second, the Legislature increased to 15 percent in the 1996-97 school year the total percentage of MPS membership allowed to participate in the program. Third, the Legislature deleted some of the duties of the State Superintendent of Public Instruction with respect to the program. The Legislature also amended the original MPCP so that the state, instead of paying participating schools directly, is required to pay the aid to each participating student's parent or guardian. The state sends the check directly to the private school and the parent or guardian restrictively endorses the check for the use of the private school. The Legislature also added an "opt-out" provision prohibiting a private school from requiring a student attending the private school under the choice program to participate in any religious activity if the pupil's parent or guardian submits a written request that the pupil be exempt from such activities.

    In a majority opinion authored by Justice Steinmetz, the supreme court disposed of numerous constitutional issues relative to the amended MPCP program. It held:

    1) The amended MPCP does not violate the Establishment Clause of the First Amendment to the U.S. Constitution because it has a secular purpose, it will not have the primary effect of advancing religion, and it will not lead to excessive entanglement between the state and participating sectarian private schools.

    2) The amended MPCP does not violate the religious establishment provisions of Article I, section 18 of the Wisconsin Constitution.

    3) The amended MPCP is not a private or local bill enacted in violation of the procedural requirements mandated by Article IV, section 18 of the Wisconsin Constitution.

    4) The amended MPCP does not violate the Uniformity Provision of Article X, section 3 of the Wisconsin Constitution.

    5) The amended MPCP does not violate Wisconsin's public purpose doctrine, which requires that public funds be spent only for public purposes. The court concluded that the amended MPCP fulfills a valid public purpose and that it contains sufficient and reasonable controls to attain its public purpose.

    6) Plaintiff NAACP's facial equal protection attack must fail because the NAACP did not sufficiently allege that the state enacted the amended MPCP with the discriminatory intent necessary to establish an equal protection claim.

    The court also considered the issue of whether children who were eligible for the amended MPCP when the court issued an injunction with respect to the program on Aug. 25, 1995, and who subsequently enrolled in private schools, should be eligible for the program if the injunction is lifted. The majority ordered the injunction dissolved and therefore removed the disability that the injunction had placed on the school children, so that with respect to educational status, eligibility under the amended MPCP is determined on the date the injunction was issued.

    Justice Bablitch filed a dissenting opinion which was joined by Chief Justice Abrahamson. Justice Bradley did not participate in this case.

    First Amendment - Constitutionality of Public Nudity Ordinance - Nude Dancing

    Lounge Management Ltd. v. Town of Trenton, No. 96-1853 (filed 18 June 1998)

    Lounge Management operates a nightclub in the town of Trenton. It has a liquor license and offers entertainment in the form of nude dancing at its facility. This case concerns the club's constitutional challenge to Trenton's ordinance banning public nudity in licensed establishments, claiming that the ordinance is facially overbroad.

    The ordinance provides that "there shall be no public nudity at a public licensed establishment." It defines "nudity" to mean "the showing or exposing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple." It further provides that the term "public" means "any place of accommodation or amusement, which shall be interpreted broadly to include, but not be limited to, places of business or recreation, hotels, motels, resorts, restaurants, taverns and any place where accommodations, amusement, goods or services are available either free or for a consideration. Campgrounds are also included."

    The ordinance goes on to provide for a series of exceptions, for example, activities in rooms privately rented in a hotel, motel, resort, or camper in a campground "if the person(s) involved rented such private facility or owns it and has not invited or allowed members of the public, who are not immediate family members, to be at such location." Another exception is "the proper use of a bathroom facility by a male or female in an enclosed area where the person is of the same sex designated for such room, and is not engaged in for any sexual or exhibitionist purpose to or in front of or adjacent to other persons."

    In a majority opinion authored by Justice Bradley, the supreme court concluded that Trenton's antipublic nudity ordinance is facially overbroad in violation of the First Amendment to the U.S. Constitution.

    The court began its analysis by noting that nude dancing has been acknowledged to include an expressive element, and accordingly is entitled to at least some degree of constitutional protection. It also is a recognized constitutional principle that when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. However, the U.S. Supreme Court has splintered over the permissible manner in which the government may reasonably regulate the protected expression inherent in nude dancing.

    Applying its interpretation of contemporary U.S. Supreme Court doctrine, the court concluded that it should conduct its overbreadth analysis by inquiring whether the ordinance in question is drafted in a manner that addresses the secondary effects of adult entertainment such as prostitution, sexual assault, and other criminal activity, without also suffocating other protected expression in a real and substantial manner. After conducting this inquiry, the court found that the Trenton ordinance encompasses expressive activities that do not implicate the "secondary effects" which the town may legitimately seek to regulate.

    Several hypothetical situations exist in which the ordinance would impinge upon protected expression involving public nudity. Such examples include public exhibition of art works or of artwork or artifacts depicting nudity, public display of a television program including brief nudity, and any form of expressive live nudity that occurs in a "public licensed establishment" as that term is defined in the ordinance. Such overbreadth, said the majority, is largely the result of the generalized terminology used in the ordinance and its specific command that portions of the ordinance be "interpreted broadly." The ordinance does not prohibit nude dancing; it prohibits all public nudity. It does not limit its application to establishments licensed to sell alcohol; it applies to all publicly licensed establishments. The ordinance does not limit itself to live nudity; it apparently applies to all forms of nude depiction. Accordingly, the ordinance regulates expressive conduct protected by the First Amendment that has no connection to the potential harmful secondary effects arising from nude dancing in liquor-licensed establishments and it does so in a real and substantial manner.

    Finally, due to the existing structure and wording of the ordinance, the court concluded that it was unable to cure the overbreadth by either striking enough of the ordinance or providing a sufficiently narrow construction that is not flatly inconsistent with the expressed intent as set forth in its existing terms.

    Justice Steinmetz, joined by Justice Wilcox, filed a dissenting opinion.


    Courts

    Tardy Attorneys - Power of Circuit Courts to Impose Fines for Violations of Pretrial Scheduling Orders

    Anderson v. Circuit Court for Milwaukee County, No. 96-3281 (filed 17 June 1998)

    Attorney Scott Anderson was representing a defendant in a criminal case before Judge Robert Crawford in Milwaukee County. He arrived at the courtroom at 8:38 a.m. for a jury trial scheduled to commence at 8:30 a.m. The date and time of trial were established in a pretrial scheduling order signed by the judge. When Anderson arrived in court, the judge indicated that he starts his jury trials at 8:30 a.m. and that on the date in question he was going to attempt to try two cases. He asked for the reason for Anderson's tardiness and Anderson responded that he did not have any reasonable explanation. The judge then indicated that he was going to exercise his inherent authority and fine Anderson $50. The court specifically indicated that it was not holding Anderson in contempt of court under Chapter 785 of the Wisconsin Statutes.

    The court of appeals reversed the circuit court. It concluded that the proper way to sanction tardy attorneys is through the non-summary contempt procedure codified in Wis. Stat. section 785.03(1). [Case law precedent would not have permitted the circuit court in this case to find Anderson summarily in contempt under chapter 785 for arriving late to a court proceeding.] The appellate court further concluded that there is no residual of inherent authority that exists outside the contempt statutes permitting the trial court to fine a lawyer for arriving late.

    In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed the decision of the court of appeals but did so on different grounds. The court concluded that Wis. Stat. (Rule) sections 802.10(7) and 805.03 apply to criminal cases as well as civil cases and that circuit courts have authority to sanction a tardy lawyer under these statutes when the attorney fails to obey a pretrial scheduling order. The power to sanction under these statutes is independent of the court's contempt power.

    The supreme court counseled that judges should use caution in imposing sanctions against attorneys. It also is important for circuit courts to make a record of the reasons for imposing sanctions. To make a record, the circuit court should, as it did in this case, give the attorney an opportunity to explain his or her tardiness. The record must address the disruptive impact on the court's calendar resulting from the attorney's late arrival, the reasonableness of the attorney's explanation, and the severity of the sanction to be imposed.

    In this case the supreme court concluded that the circuit judge erroneously exercised discretion in fining Anderson. This is because the circuit court did not state how the eight-minute delay would affect the court's ability to try the two cases that day or other calendared matters, or why those eight minutes warranted a $50 sanction. The record does not show whether the delay caused any problems for jurors, victims, witnesses, police, or court staff. It does not show whether the attorney was frequently tardy. In sum, the record does not demonstrate that the circuit court examined the relevant facts, applied a proper standard of law, or used a demonstrated rational process to reach a conclusion that a reasonable judge could reach.

    Because the court concluded that a circuit judge has authority under the statutes cited above to impose sanctions on attorneys who are tardy to scheduled court appearances, it did not need to discuss a circuit court's inherent power to impose sanctions under the circumstances in this case.

    Finally, the appellate court noted that, in order to adjudicate cases in a timely manner and to serve the interests of litigants, circuit courts must have the power to effectively manage court business. To this end, lawyers must comply with scheduling orders. Circuit courts, in turn, must consider lawyers' scheduling difficulties and the scheduling conflicts presented by other courts. In short, circuit courts and lawyers must be considerate of each other's needs and must treat each other with respect and fairness, bearing in mind their respective roles and concerns.


    Criminal Procedure

    Jury Trials - Statute Providing for Six-person Juries in Misdemeanor Cases Held Unconstitutional - Common Law Name Changes Recognized

    State v. Hansford, No. 97-0885-CR (filed 19 June 1998)

    This case was before the Wisconsin Supreme Court on certification from the court of appeals. The certified question was whether Wis. Stat. section 756.096(3)(am), which provides for six-person juries in criminal misdemeanor cases, violates Article I, section 7 or Article I, section 5 of the Wisconsin Constitution.

    In a unanimous decision authored by Justice Crooks, the court concluded that the statute violates Article I, section 7 of the Wisconsin Constitution that guarantees the right to a jury of 12 persons in all criminal cases. Such was the common law when the Wisconsin Constitution was adopted.

    A second issue in this case was whether the circuit court committed reversible error at trial when it denied the defendant's request for a jury instruction on the common law right to change one's own name. This issue arose in connection with the state's claim that the defendant obstructed the arresting officer by using a name other than his given name. The supreme court concluded that a common law right to change one's name through consistent and continuous use is recognized in Wisconsin, as long as the change is not effected for a fraudulent purpose. In so finding, the court disagreed with the position of the circuit court, which found that there are only two avenues by which an individual may change his or her name: 1) by marriage or divorce; or 2) by court order pursuant to Wis. Stat. section 786.36.

    Rape Shield - Exculpatory Evidence - Time of Offense Instruction

    State v. Dodson, No. 96-1306-CR (filed 19 June 1998)

    Dodson was convicted of three counts of sexual assault involving a child. The court of appeals reversed one count based upon an unconstitutional exclusion of exculpatory evidence but affirmed the other two counts.

    The supreme court, in an opinion written by Justice Bablitch, held that the improper exclusion of the evidence justified the reversal of the two remaining counts as well. The excluded evidence involved proof "of prior sexual assaults on the victim based on sexual intercourse by a third party." The defense contended that this evidence suggested an alternative source of the victim's physical injury and provided an alternate source of the child's sexual knowledge. In a fact-intensive opinion applying the rape-shield doctrine, the court concluded that this evidence affected the two counts alleging sexual contact as well as the single count of sexual intercourse.

    A second issue concerned the propriety of a jury instruction on the state's obligation to prove the time of the offense. The court concluded that it "would not be error to submit Wis JI - Criminal 255 to the jury because Dodson did not offer an alibi defense and there was no confusion about the separateness of the charges, each involving different conduct, occurring within the time frame alleged." In this case, however, the trial judge gave a modified version of Wis JI - Criminal 255 that was "internally inconsistent and contradictory." This undoubtedly misled and confused the jury.

    Justice Crooks concurred in the mandate based upon the court's resolution of the exculpatory evidence issue, but disagreed that the erroneous instruction justified a new trial. Justices Wilcox and Steinmetz joined the concurrence. Justice Bradley filed a separate concurrence stating that the court should not have reached the exculpatory evidence issue.


    Employment Law

    Wrongful Discharge - Tort of Misrepresentation

    Tatge v. Chambers & Owen Inc., No. 95-2928 (filed 19 June 1998)

    Tatge began employment with the defendant in 1981. In 1990 he signed an employee handbook acknowledging that he was employed "at will." In 1993 Tatge balked and later refused to sign a nondisclosure and noncompete agreement. Tatge contended that he was informed that "nothing" would happen if he refused to sign but he later was terminated for his failure to sign the agreements.

    Tatge sued the employer under various theories. The trial judge upheld the restrictive covenants under section 103.465 of the Wisconsin Statutes. In a bifurcated trial, the jury found that Tatge was an at-will employee but that the employer had "made a representation of fact that Tatge was entitled to ongoing employment and termination only for cause." The jury also found for Tatge on a negligent misrepresentation claim and awarded him $250,000 (minus 40 percent for Tatge's causal negligence). The judge later dismissed this claim during postverdict motions. The court of appeals affirmed.

    The supreme court, in an opinion written by Justice Wilcox, also affirmed. The court held that "a breach of an employment contract is not actionable in tort" because such claims create "an irreverent marriage of tort and contract law. ... [N]o duty to refrain from misrepresentations exists independently of the performance of the at-will employment contract." Tatge's misrepresentation claim was inextricably tied to his termination.

    The court also held that "a contract cause of action for wrongful discharge may not be maintained under [Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561 (1983)] where an at-will employee is terminated for failing to sign a nondisclosure/noncompete agreement." Tatge failed to identify a fundamental, well-defined public policy that triggered the Brockmeyer exception to at-will employment.

    Chief Justice Abrahamson, joined by Justice Bradley, dissented and argued that "the court should recognize the right of an employee at-will who claims that a nondisclosure agreement is void under Wis. Stat. sec. 103.465 to sue for wrongful discharge."


    Family Law

    Termination of Parental Rights - Warnings

    Marinette County v. Tammy and Anthony C., No. 97-2946 (filed 19 June 1998)

    The county filed petitions to terminate parental rights. The judge dismissed the petitions based upon his conclusion that several CHIPS orders lacked the warnings required by sections 48.356(2) and 48.415(2)(a) of the Wisconsin Statutes. On bypass from the court of appeals, the issue was framed as: Do these statutes "require that each and every written CHIPS order affecting an out-of-the home placement of a child have a written TPR warning attached, when the TPR ground asserted is the continuing need of protection or services"? The bypass petition questioned the soundness of In re D.F., 147 Wis. 2d 486 (Ct. App. 1988).

    The supreme court, in an opinion written by Justice Geske, reversed the court of appeals but found it unnecessary to probe In re D.F. in light of the record in this case and the applicable statutes. The court held that the "plain language of Wis. Stat. sec. 48.356(2), as referenced in Wis. Stat. sec. 48.415(2)(a), requires that the warning notice apply only to orders removing children from placement with their parents or denying parental visitation, pursuant to Wis. Stat. secs. 48.345, 48.357, 48.363 or 48.365." The record revealed that all pertinent orders carried the requisite notice.

    CHIPS Cases - Determining the "Best Interests of the Child" in Connection with Return of Child to Natural Parent(s)

    Sally T. v. Milwaukee County Department of Health and Human Services, No. 96-3147 (filed 24 June 1998)

    This appeal arose from a circuit court decision to return the petitioner's foster child to the biological mother. The petitioner argued that the circuit court incorrectly determined that compliance with the return home conditions in a child in need of protection or services (CHIPS) dispositional order created a presumption that the return home was in the child's best interests. Although the dispositional order in this particular case has now expired, the supreme court addressed the issue because it presents what the court characterized as a matter of great public concern and offers an opportunity to provide guidance to the circuit courts.

    In a decision authored by Justice Bradley, a unanimous supreme court concluded that compliance with the return home conditions in a CHIPS dispositional order is not dispositive of a child's best interests. The circuit court applied a presumption that compliance with the return home conditions mandates return to the biological parent. The validity of this presumption under Wisconsin law was rejected by the supreme court. The court acknowledged that in most cases in which a biological parent has successfully met the conditions of return, the child can and should be returned to the parent. Affected parents continue to maintain a constitutional right in the care and custody of their child unless parental rights are terminated, and that right cannot needlessly be impugned once the parent has complied with the demands made and strictures imposed by the reviewing court. However, the circuit court cannot close its eyes to detrimental conditions impacting the welfare of the child that have arisen since the imposition of the controlling dispositional order and the conditions of return therein.

    Thus, the court determined that the best interests of the child standard is to be defined in relation to the child and should not be used as a euphemism for the biological parent's compliance with the return home conditions of a dispositional order. Compliance with the conditions of a CHIPS dispositional order does not create a presumption that it is in the child's best interests to be returned to the biological parents.

    Guardians ad Litem - Immunity

    Paige B. v. Molepske, No. 96-2620 (filed 26 June 1998)

    The circuit court appointed an attorney to act as the guardian ad litem (GAL) for two children during a divorce and custody proceeding. Despite allegations that the father was abusing the children, the court awarded joint custody. The GAL had recommended that custody be with the mother, although he did not specifically rely upon the sexual abuse allegations. The father was later convicted of sexually abusing the children. The children sued the GAL alleging that he had negligently performed his duties. The circuit court granted summary judgment to the GAL based upon absolute quasi-judicial immunity. The court of appeals affirmed.

    The supreme court, in an opinion written by Justice Steinmetz, also affirmed. When appointed under Wis. Stat. section 767.045, the GAL's role "is intimately related to the judicial process." The GAL and the circuit court are entrusted with protecting the best interests of the child according to identical standards. The GAL's role is "not strictly to provide legal counsel" for the child; the GAL must act independently. The court feared that opening the door to liability would result in a shortage of attorneys willing to perform as GALs and perhaps "warp" the judgment of those who did serve. Thus, the GAL is absolutely immune from negligence liability for acts within the scope of his or her statutory authority, although the court did catalogue a number of other legal "mechanisms" for disciplining miscreant GALs (for example, the Rules of Professional Conduct, judicial oversight).


    Insurance

    Duty to Defend - Slander of Title - Negligent Supervision

    Doyle v. Engelke, No. 96-0680 (filed 24 June 1998)

    This case arose out of an antiabortion demonstration. The plaintiff sued the defendants, including an antiabortion group (WCVY), for falsely stating that she had injured a protester and for later filing false security agreements that encumbered the plaintiff's assets. St. Paul Fire & Marine Insurance Co. insured WCVY under a comprehensive general liability policy. The circuit court granted summary judgment to St. Paul, finding that it had no duty to defend or indemnify WCVY on any of the plaintiff's claims. The court of appeals affirmed.

    The supreme court, in an opinion written by Justice Bradley, affirmed in part and reversed in part. First, the court held that St. Paul had a duty to defend or indemnify: WCVY's alleged negligent supervision of its employees resulted in a "bodily injury" that occurred as part of a covered "event." Nor did the intentional acts exclusion apply since the plaintiff alleged that WCVY negligently supervised its employees, a claim that stood apart from whether the employees themselves intentionally caused harm. Second, with respect to the slander of title claim, the court held that St. Paul had no obligation to defend or indemnify. Slander of title is a distinct form of wrongdoing that stood outside of the policy's coverage for "libel or slander."

    Chief Justice Abrahamson and Justice Geske did not participate.

    Notice of Settlement - Prejudice - Burden of Proof

    Ranes v. American Family Mut. Ins. Co., No. 97-0441 (filed 19 June 1998)

    The Raneses were severely injured in a car accident. They brought suit against the tortfeasors and their insurer and eventually agreed to a settlement that released the tortfeasors from further liability. The Raneses did not give notice of their settlement to American Family, which had issued multiple policies to the Raneses carrying underinsured motorist (UIM) coverage. The Raneses later filed suit against American Family on the basis of recent authority that had voided reducing clauses in similar UIM policies. American Family moved for summary judgment because the Raneses had failed to notify it of the settlement. The circuit court granted the motion to dismiss but the court of appeals reversed.

    The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed the court of appeals. The court held that "failure to give notice should not void the obligations of the UIM insurance company unless the breach is material, that is, the UIM insurance company was prejudiced by the lack of notice." The court next considered the burden of proof on the issue of prejudice. It concluded that an insured's failure to notify the insurer of the settlement creates a rebuttable presumption of prejudice. The rule places on the insured both the burden of production (that is, the burden of coming forward with evidence) and the burden of persuading the fact finder that the insurer was not prejudiced by the lack of notice.


    Torts

    Shoplifters - Unlawful Detention - Negligent Supervision

    Miller v. Wal-Mart Stores Inc., No. 96-2529 (filed 24 June 1998)

    Wal-Mart employees stopped, searched, and questioned the plaintiff for alleged shoplifting. A jury found that Wal-Mart negligently hired, trained, or supervised the employees and that Miller suffered damages. It also found that Wal-Mart employees lacked reasonable suspicion for stopping the plaintiff.

    On certification from the court of appeals, the supreme court, in an opinion written by Justice Bablitch, reversed and remanded for a determination of whether the plaintiff satisfied all elements of the tort. In particular, the court held that Wisconsin law embraces a claim for negligent hiring, training, and supervising employees, including "loss prevention employees" who could foreseeably harm people unless they are properly trained and supervised. The special verdict form in this case, however, did not completely ask whether the plaintiff satisfied the cause-in-fact element; that is, was there a nexus between the negligent hiring, training, or supervising and the plaintiff's injury? Finally, although the retail theft statute, section 943.50(3), provides some measure of protection for merchants, Wal-Mart did not meet the statutory elements required for immunity from civil and criminal liability because its employees lacked reasonable suspicion for the stop.

    Chief Justice Abrahamson and Justice Geske did not participate. Justice Steinmetz, joined by Justice Wilcox, dissented.

    Wrongful Death - Worker's Compensation Exclusivity Provision - Loaned Employee

    Borneman v. Corwyn Transport Ltd., No. 96-2511 (filed 25 June 1998)

    A transport company agreed to provide a truck and haul two loads for Major Industries from Wisconsin to Georgia. A truck driver, employed by the transport company, assisted four Major Industries employees in loading the truck. During the loading process, one of Major Industries' employees was crushed to death. The driver's role in the loading was disputed. The circuit court granted summary judgment dismissing a claim against the transport company based upon the finding that the driver was a "loaned employee" of Major Industries, and hence fell within the Worker's Compensation Act's exclusivity provision. The court of appeals reversed, ruled that summary judgment precluded the loaned employee defense, and remanded the matter for trial on the driver's negligence.

    The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed. It held that the court of appeals properly applied the test set forth in Seaman Body Corp. v. Industrial Comm'n, 204 Wis. 157 (1931), and focused appropriately on the issue of whether the driver "consented to the new employee-employer relationship." "[T]he existence of an arrangement or understanding between a general employer and a borrowing employer is relevant to the issue of an employee's consent to enter into a new employment relationship with the borrowing employee."

    Contribution - Seat Belts

    Gaertner v. Holcka, No. 96-2726 (filed 26 June 1998)

    Gaertner picked up her friend's 11-year-old son, Justin, and drove him to a doctor's appointment. On the way home her car was struck by another driver who was totally at fault in the accident. Justin suffered severe and permanent injuries. At the time of the collision Justin was in the back seat and was not wearing the available passenger restraints. Gaertner had no reason to believe that Justin was wearing the seat belt at any time. The tortfeasor's insurer settled with Justin but brought an action for contribution against Gaertner's insurer, American Family. The circuit court dismissed the contribution claim and the court of appeals certified the case to the supreme court.

    The supreme court, in an opinion written by Justice Wilcox, affirmed. The court held "the Legislature has expressed its intent that a claim for contribution may not be sustained in cases involving negligence for failure to restrain another with a seat belt, as controlled by Wis. Stat. sec. 347.48(2m)(g)." The opinion traces the development of the "seat belt defense" in the case law and the Legislature's response. Specifically, the Legislature modified the case law in two ways: 1) It limited to 15 percent the potential reduction in plaintiffs' recoverable damages; and 2) It established a duty on behalf of the driver to properly restrain minor passengers. The Legislature intended "to preclude the use of the seat belt defense in a contribution action."

    Justice Bradley concurred. Chief Justice Abrahamson filed a separate dissent. Justice Geske, joined by Justice Steinmetz, also dissented.

    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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