Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Civil Rights |
Courts |
| Criminal Procedure | Evidence | Insurance |
Civil Procedure
Suing Governmental Entities - Notice of Claims -
Counterclaims
City of Racine v. Waste Facility
Siting Board, No. 96-0688 (filed 19 March 1998)
The City of Racine supported expanding a landfill. The Waste Facility
Siting Board (board) is a state agency that oversees dispute resolutions
concerning solid and hazardous waste facilities. After the board
disqualified the city's representative on the local siting committee,
the city filed this action for circuit court review. RATE, a local
citizens' group, intervened as a defendant and failed a counterclaim
against the city, along with a cross-claim, seeking declaratory relief
excluding the city's representative. The trial judge granted the city's
motion for summary judgment dismissing RATE's claims for failure to
comply with the notice of claim statute, section 893.80(1)(b) of the
Wisconsin Statutes.
The supreme court, in an opinion written by Justice Bablitch,
affirmed the trial judge's order that dismissed RATE's counterclaim
against the City. Although RATE's arguments for restricting section
893.80(1) to torts had merit, the supreme court's "hands are tied by the
plain language" of the statute. Thus, the rule is that "compliance with
sec. 893.80(1)(b) is a necessary prerequisite to all actions brought
against the entities listed in the statute, including governmental
subdivisions, whether a tort or non-tort action, and whether brought as
an initial claim, counterclaim or cross-claim. Except as provided by
statute or case law interpreting those statutes, a party must file a
notice of claim and follow the statutory procedures set forth in sec.
893.80(1)(b) before bringing any action against a governmental
subdivision."
Chief Justice Abrahamson dissented, joined by Justices Geske and
Bradley. The application of section 893.80(1) to a counterclaim was
inconsistent with the statute's text.
Civil Rights
Section 1983 Claims - Statute of Limitations - Appellate
Procedure
Hemberger v. Bitzer, No.
96-2973 (filed 13 March 1998)
Four years after losing her job, the plaintiff brought an action
alleging that the defendants violated her rights to free speech by
terminating her employment. The narrow question presented in this case
is whether 42 U.S.C. section 1983 claims are governed by a three- or
six-year statute of limitations. The supreme court, in an opinion
written by Justice Bablitch, held that section 1983 claims are governed
by the six-year statute of limitations under section 893.53 of the
Wisconsin Statutes. The court reasoned that section 893.53 was a
"residual" statute that applied to "personal injury actions"; thus, the
court was "constrained" by binding precedent to apply this statute to
the section 1983 claim. The court overruled Hanson v. Madison Serv.
Corp., 125 Wis. 2d 138 (Ct. App. 1985), and Kempfer v.
Evers, 133 Wis. 2d 415 (Ct. App. 1986), to the extent it relied
upon Hanson.
The court of appeals had certified a second question to the court;
namely, can the court of appeals "overrule or modify a previously
published decision of this court when the parties dispute whether the
decision should or must be overruled or modified in light of later
federal law." The supreme court held that "[o]nly the supreme court, and
not the court of appeals, 'has the power to overrule, modify or withdraw
language from a published opinion of the court of appeals.'" In short,
in such situations the court of appeals can certify the issue to the
supreme court or decide the case in adherence to the troublesome
precedent but explain why it believes the precedent is in error.
Courts
Inherent Powers - Power to Remove Judicial Assistants
Barland v. Eau Claire
County, No. 96-1607 (filed 13 March 1998)
Melland worked as a judicial assistant/legal secretary to a circuit
court judge and to the family court commissioner in Eau Claire County.
She was a member of the union representing courthouse clerical
employees. Pursuant to the terms of a collective bargaining agreement
between the county and the union, Melland was "bumped" out of her
position as a judicial assistant by a more senior courthouse employee
whose position with the register of deeds office had been
eliminated.
In this action the judges of Eau Claire County filed a complaint
seeking a declaration that they have the exclusive authority to appoint
and to remove their judicial assistants and that such authority may not
be modified by a collective bargaining agreement. The judges prevailed
in that action before the circuit court and, upon appeal, the court of
appeals certified the case to the Wisconsin Supreme Court.
In a majority decision authored by Justice Wilcox, the supreme court
affirmed. It concluded that, based upon the customary practices in
Wisconsin, and on the unique relationship between a judge and his or her
assistant, the "bumping" provision of the collective bargaining
agreement cannot be harmonized with the circuit court judge's exclusive,
inherent power to remove a judicial assistant. Because the provision of
the collective bargaining agreement at issue in this case obstructs the
judiciary in its exclusive sphere, and thereby violates the separation
of powers principles implied by the Wisconsin Constitution, it is void,
unenforceable, and not subject to arbitration.
In footnote the majority noted that this decision required the court
to determine whether circuit court judges can prevent removal of their
judicial assistants. The power to appoint an assistant after one has
been removed is a secondary consideration and one not triggered by the
facts of this case. Accordingly, the court limited this decision to a
circuit court judge's power to remove his or her judicial assistant.
Justice Geske filed a dissenting opinion that was joined in by Chief
Justice Abrahamson and Justice Bradley.
Court Automation Program Revenue - Lapse to General Fund
- Constitutionality
Flynn v. Dep't of
Administration, No. 96-3266 (filed 13 March 1988)
In 1989, in response to a request by the judicial branch, the
Legislature created an appropriation for court automated information
systems, such as electronic filing of documents, document imaging,
computerized file tracking, judicial access to computerized research
tools, integrating the computer information systems of all circuit
courts in the state, and so on.
Court automation is funded through program revenue, which means that
certain designated revenues that are paid into the general fund are
credited by law to an appropriation to finance a specific program or
state agency. Until the 1995-97 biennium budget when court automation
became an annual appropriation, the court automation program revenue was
classified as a continuing appropriation. Expenditures made under a
continuing appropriation from program revenues are limited only by the
available revenues from which the appropriation is made.
At the time of the governor's 1993-95 budget proposal, the Department
of Administration projected that the court automation appropriation
would have a positive balance of more than $4 million at the end of
fiscal year 1993. The Legislative Fiscal Bureau offered several
alternatives for the court automation program with respect to the
anticipated $4 million balance. Ultimately, the Legislature increased
the appropriation for court automation by nearly $l million from the
previous biennium, and it lapsed $2.8 million from the court automation
program revenue appropriation to the general fund. See 1993
Wis. Act 16 § 9253.
In this action the plaintiff, on behalf of himself and other citizen
users of the Wisconsin court system, argued that the enactment of 1993
Wis. Act16 section 9253, which caused the lapse of $2.8 million to the
general revenue fund of unexpected program revenues designed for court
automation, was invalid because it violates fundamental public policy
grounded in the constitution and the separation of powers doctrine.
In a majority decision authored by Justice Bablitch, the supreme
court disagreed with these arguments. It concluded that it is the
province of the Legislature, not the courts, to determine public policy.
Because one Legislature may not bind future Legislatures, it is fully
within the Legislature's power to change an appropriation put into place
by a previous legislative session. It is assumed that such action
reflects public will, and if not, those legislators will be answerable
at the ballot box.
The court also concluded that appropriating funds for the judiciary
is one of shared powers. The Legislature clearly has the appropriation
power and the judiciary has explicit constitutional administrative
powers and inherent powers to ensure that the judicial system functions
efficiently. However, the plaintiff failed to show beyond a reasonable
doubt that the lapse of $2.8 million from the court automation program
revenue fund to the general purpose revenue fund unduly burdened or
substantially interfered with the judiciary. Therefore, the court held
that the lapse is constitutional.
Justice Bradley filed a concurring opinion that was joined by Chief
Justice Abrahamson.
Criminal Procedure
NGI Commitments - Impact of Subsequent Criminal Conviction on
Service of NGI Commitment
State v. Szulczewski, No.
96-1323-CR (filed 13 March 1998)
The defendant was found not guilty by reason of mental disease or
defect (NGI) on charges of murder and attempted murder. He was committed
to the Department of Health and Social Services for custody and
treatment. While institutionalized, he battered another patient and was
convicted of a felony with respect to that attack. The circuit court
sentenced the defendant to prison on the battery charge and ordered him
immediately transferred to the Department of Corrections (DOC) for
confinement in the Wisconsin prison system even though he was still
serving the NGI commitment.
The court of appeals affirmed. It concluded that the immediate
commencement of the defendant's prison sentence was required by Wis.
Stat. section 973.15.
The supreme court, in a unanimous decision authored by Chief Justice
Abrahamson, reversed and remanded. It held that a circuit court has the
discretion to decide whether to stay execution of a prison sentence
imposed on an NGI acquittee who is convicted of and sentenced for a
crime committed while under the NGI commitment. This discretion, said
the court, is similar to the discretion a circuit court exercises when
making any sentencing decision. In exercising its discretion, a circuit
court may determine that the purposes of both the criminal and NGI
statutes are best served by allowing the defendant to remain in a mental
health institution pursuant to the NGI acquittal. This disposition may
be appropriate, for example, in cases involving less serious crimes or
defendants with serious mental illness or special treatment needs.
In other cases the circuit court may determine that the goals of
retribution, rehabilitation, deterrence, and segregation are best served
by committing the defendant to the custody of the DOC upon sentencing.
This disposition may be appropriate, for example, in cases where the
crime requires severe punishment, where there is a need to deter both
the particular defendant and the general NGI population, and where the
defendant needs to be segregated from the general NGI population.
Accordingly, the supreme court concluded that the statutes authorize
the circuit court to determine whether a prison sentence of an NGI
committee should be executed forthwith for deterrence, rehabilitation,
retribution and segregation purposes, or whether the prison sentence
should be stayed to achieve the objectives of the NGI commitment.
Search Warrants - Knock and Announce - Anticipatory
Search Warrants
State v. Meyer, No.
96-2243-CR (filed 20 March 1998)
This case raised issues regarding anticipatory search warrants for
controlled substances and the "knock and announce" requirement which,
with limited exception, must be observed when the police execute search
warrants.
In a majority decision authored by Justice Crooks, the supreme court
first addressed the matter of anticipatory search warrants. These
warrants are peculiar to property in transit and may be issued prior to
the contraband being located at the premises to be searched. The
probable cause doctrine as it applies to search warrants does not
require that contraband to be seized must presently be located at the
premises to be searched, only that there is probable cause to believe
that a crime has been (or is being) committed and that evidence of it
can likely be found at the described location at the time of the
search. The probable cause standard will not be satisfied unless
the affidavit in support of the anticipatory warrant demonstrates that
the contraband is on a "sure course" to the premises to be searched. In
a drug case like the present one, the court recognized that
government-controlled deliveries to the target premises may be more
likely to reach their destination than those deliveries expected within
the normal course of a drug organization's operations.
The defendant argued that the warrant in this case was an
unconstitutional anticipatory warrant because it did not contain any
conditional language; that is, the warrant did not limit the officers'
discretion in executing the warrant and did not sufficiently detail the
events that had to occur prior to its execution. Rejecting this
argument, the supreme court relied upon United States v.
Leidner, 99 F.3d 1423 (7th Cir. 1996). The Leidner court
stated that it found "no cases from this circuit requiring (as a matter
of constitutional law) anticipatory warrants to explicitly state that
the expected delivery must occur prior to the execution of the warrant."
The Seventh Circuit recognized that although some courts appear to
prefer conditional language, the only constitutional requirement in
issuing an anticipatory search warrant is that it be supported by
probable cause.
The supreme court also addressed the "knock and announce" rule in
this decision. The U.S. Supreme Court has concluded that, in order to
justify a "no-knock" entry, the police must have a reasonable suspicion
that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit
the effective investigation of the crime by, for example, allowing the
destruction of evidence. See Richards v. Wisconsin, 117 S. Ct.
1416 (1997).
In applying Richards in this case, the supreme court had to
contend with the role of the police officers' training and experience in
determining whether they have cause to dispense with the knock and
announce requirement. The court concluded that an officer may dispense
with the rule of announcement if he or she has a reasonable suspicion,
based upon the particular facts in a given case and the reasonable
inferences drawn therefrom, that knocking and announcing the officer's
presence would be dangerous or futile or inhibit the effective
investigation of the crime. Furthermore, in determining whether
reasonable suspicion exists, an officer's training and prior experience
in similar situations may be considered in combination with the
particular facts. In so holding, the court rejected the state's position
that:
1) based upon prior experience in similar cases, an officer may
reasonably infer that complying with the rule of announcement would
result in danger or the destruction of evidence; and
2) such prior experience satisfies the reasonable suspicion test for
dispensing with the rule of announcement, as long as there is no
specific evidence that would negate an officer's reasonable suspicion of
danger or destruction in a particular case.
Justice Bablitch filed a concurring opinion that was joined by
Justices Steinmetz and Wilcox. Justice Geske wrote a separate
concurrence to address the concurring opinion of Justice Bablitch, which
was joined by the Chief Justice, Justice Bradley, and Justice
Crooks.
Evidence - Hearsay - Credibility Experts
State v. Huntington, No.
96-1775-CR (filed 20 March 1998)
The supreme court affirmed the defendant's conviction for three
counts of sexually assaulting a child under age 13. He raised a series
of evidentiary challenges which were considered by the court in its
opinion by Justice Bradley.
First, the court upheld the admissibility of statements by the child
to her mother, sister, and a police officer as excited utterances under
section 908.03(2) of the Wisconsin Statutes. The opinion canvasses the
case law on excited utterances by child sexual abuse victims. The court
declined to interpret State v. Gerald L.C., 194 Wis. 2d 548
(Ct. App. 1995), as setting forth a "bright-line rule." The child's
statements to her mother and sister were made two weeks after the last
alleged assault and while the child was "crying" and "scared." While a
"closer call," the statements made to the police officer also fell
within the exception for similar reasons. In addition to the excited
utterance exception, the court also considered the applicability of the
residual exception, section 908.03(24) of the Wisconsin Statutes, as
construed by State v. Sorenson, 143 Wis. 2d 226 (1988). The
record satisfied all five of the so-called "Sorenson factors"
and therefore all three series of statements were admissible.
Second, the defendant also objected to hearsay statements related by
a nurse practitioner, who interviewed the victim and her mother. The
nurse's conversations with the victim and her mother properly fell under
section 908.03(4), the exception for statements made for purposes of
medical diagnosis or opinion. (The court deftly analyzed the double
hearsay character of some of the statements.) But statements made by a
social worker to the nurse were not admissible. Section 908.03(4) does
not apply "to statements made to counselors or social workers."
The court acknowledged, however, that prior case law had recognized
psychologists, psychiatrists, and even chiropractors as "medical"
experts under section 908.03(4).
Finally, the court upheld the admissibility of expert testimony
indicating that the victim's reactions were consistent with the behavior
of sexual abuse victims. The expert's testimony did not cross the
forbidden line by telling the jury that a crime had occurred or that the
victim was truthful about what had occurred.
Justice Geske, joined by Chief Justice Abrahamson and Justice
Bablitch, dissented because Wisconsin's case law on the residual hearsay
exception has become a "quagmire" for trial judges.
Evidence - Rape Shield Statute - Improper Impeachment
- Harmless Error
State v. Jackson, No.
96-1618-CR (filed 20 March 1998)
The defendant was convicted of sexual assault, armed kidnapping,
robbery, threats to injure, and armed burglary. The court of appeals
reversed based on alleged errors that excluded evidence of a prior
consensual sexual relationship and the admission of threatening letters
written by the defendant. The supreme court, in an opinion written by
Justice Bradley, reversed the court of appeals.
First, the rape shield statute, Wis. Stat. section 972.11, excluded
proffered evidence of a prior consensual sexual relationship between the
victim and the defendant. The court reviewed and applied the three-part
test that governs the admissibility of such evidence. Although the
defendant had adequately demonstrated the existence of the prior sexual
relationship (the state did not dispute the evidence at trial), its
materiality was extremely questionable. Moreover, the rape shield law
"embodies the legislature's distrust of evidence of a victim's prior
sexual history by initially weighting the balance in favor of a
determination that the evidence is inherently prejudicial." In other
words, the starting point is exclusion and the defendant failed to
overcome this burden. The supreme court also was unimpressed by the
defendant's contention that the prosecutor had "opened the door" during
the defendant's cross-examination. The record revealed a very different
scenario; namely, "the defendant attempting to beat the door down on his
own initiative by taking advantage of a question which did nothing more
than summarize the theory repeatedly asserted by the defense that the
complainant was acting vindictively over a financial dispute."
Second, the trial court erred by admitting threatening letters
written by the defendant to his "girlfriend" (not the victim). Although
relevant to impeach a witness, the letter unfairly prejudiced the
defendant by strongly suggesting his violent character. The error was,
however, harmless.
Evidence
Admissibility of "Other Acts" Evidence - Wis. Stat. section
904.04(2) - "Whitty" Evidence
State v. Sullivan, No.
96-2244-CR (filed 25 March 1998)
The defendant was convicted of battery to a woman with whom he was
romantically involved and of disorderly conduct. During his trial
evidence was admitted from the defendant's ex-wife and a neighbor to the
effect that two years earlier the defendant had abused his ex-wife, not
physically, but by using insulting and intimidating words including
threats to assault her.
Two issues were raised before the supreme court: 1) Did the circuit
court erroneously exercise its discretion in admitting the other acts
evidence? 2) If the circuit court erred in admitting the other acts
evidence, was the error harmless? In a majority decision authored by
Chief Justice Abrahamson, the supreme court concluded that the other
acts evidence was erroneously admitted and that the admission of that
evidence was reversible error.
To determine the admissibility of other acts evidence, a three-step
analytical framework is used. The first step is to determine whether the
other acts evidence was offered for an acceptable purpose identified
under Wis. Stat. section 904.04(2), such as establishing motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident. The next step is to determine whether the other
acts evidence is relevant, considering the two facets of relevance set
forth in Wis. Stat. section 904.01. The first consideration in assessing
relevance is whether the other acts evidence relates to a fact or
proposition that is of consequence to the determination of the action.
The second consideration is whether the evidence has probative value;
that is, whether the other acts evidence has a tendency to make the
consequential fact or proposition more probable or less probable than it
would be without the evidence. The third and final step is to determine
whether the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence. See Wis.
Stat. § 904.03.
In this case the majority concluded: 1) The other acts evidence was
offered to establish the defendant's intent or absence of accident. 2)
The other acts evidence related to a consequential fact in the case,
namely the defendant's intent or absence of accident. However, the other
acts evidence was dissimilar enough from the incident upon which the
charged offenses were based that the evidence was not probative of the
defendant's intent or absence of accident. 3) Even if the other acts
evidence had probative value with regard to the defendant's intent or
absence of accident, the probative value of the other acts evidence was
substantially outweighed by the prejudicial effect to the defendant.
Finally, in the context of this case, the court concluded that the
admission of the other acts evidence was reversible error. The court
found that there is a reasonable probability that the other acts
evidence contributed to the defendant's convictions. Accordingly, it
concluded that the state had not met its burden of proving beyond a
reasonable doubt that the error did not contribute to the verdict.
See State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).
Justice Crooks filed a dissenting opinion in which Justices Steinmetz
and Wilcox joined.
Insurance
Stacking - "Same Loss" - Interest on Judgment
Weimer v. Country Mutual Insurance
Co., No. 96-1440 (filed 20 Mar. 1998)
A dump truck with an attached trailer, driven by Ronald Trace,
crossed the center line and struck a vehicle driven by Weimer. Country
Mutual insured both the dump truck and the trailer for up to $100,000 in
bodily injury for each person. Country Mutual offered to pay Weimer
$100,000, which he rejected. A jury found that Trace was 75 percent
causally negligent and assessed damages at over $800,000. The trial
judge ruled that Country Mutual was liable to Weimer for its policy
limits of $100,000 and also ruled that the insurer was liable for
interest on the $100,000 limits, but not on the entire $800,000
judgment.
The court of appeals affirmed the order limiting Country Mutual's
liability to the $100,000 limits, but reversed on the interest
determination. Country Mutual's "offer" to pay $100,000 did not
constitute a sufficient "tender"; hence, the insurer was liable for
post-verdict interest on the entire judgment.
The supreme court, in an opinion written by Justice Crooks, affirmed
in part and reversed in part. First, the court agreed that the coverage
on the truck and the trailer could not be stacked. Trace paid separate
premiums for both the truck and the trailer; thus, the coverage
constituted separate policies. They did not, however, cover the "same
loss" within the meaning of Wis. Stat. section 631.43(1). The risks to
the truck and the trailer were not the same, even though both vehicles
were involved in the accident in this case. The majority opinion cited
examples of how the trailer might cause damage apart from the truck's
involvement.
Second, the court addressed the post-verdict interest issue. Under
the policy's terms, Country Mutual was responsible for interest on the
entire judgment without restriction to the policy's limits. The insurer
escaped such liability, however, because it had "tendered" its policy
limits before trial. The offer was formal because "it was presented to
Weimer in writing and signed by counsel for Country Mutual." The offer
was extended in accordance with the insurer's liability under the
policy. The insurer's request for a release of itself and its insured
was not fatal: "language requiring release of an insured for settlement
is an integral part of Country Mutual's duty to defend Trace."
Chief Justice Abrahamson, joined by Justice Bablitch, dissented on
the stacking issue.
This column summarizes all decisions
of the Wisconsin Supreme Court. 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.
Wisconsin Lawyer