Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Law | Juvenile Law | Property | Taxation | Torts |
Criminal Law
Inchoate Conspiracy Wis. Stat. section 939.31
"Unilateral" vs. "Bilateral" Approach
State v. Sample, No.
96-2184-CR (filed 10 Feb. 1998)
Wis. Stat. section 939.31, which is Wisconsin's inchoate conspiracy
statute, provides in pertinent part that "whoever, with an intent that a
crime be committed, agrees or combines with another for the purpose of
committing that crime may, if one or more of the parties to the
conspiracy does an act to effect its object, be fined or imprisoned or
both not to exceed the maximum provided for the completed crime."
This case was before the supreme court on certification from the
court of appeals. The certified question was whether the statute quoted
above codifies a "unilateral" or a "bilateral" approach to the inchoate
crime of conspiracy.
In a majority decision authored by Justice Geske, the supreme court
concluded that a plain reading of the statute embraces both unilateral
and bilateral conspiracies. This means that criminal conspiracy will lie
even where one of two alleged "coconspirators" is, unbeknownst to the
other, an undercover police agent or a police informant who merely
feigns participation in the conspiracy. In the context of an agreement
between a defendant charged under section 939.31 and another person, as
long as the parties agree or combine by their words or actions, it is
not necessary that the other person intend agreement. His or her
"agreement" may be feigned and the defendant may still be liable for the
crime of inchoate conspiracy.
Said the court, to read the statute as limited to bilateral
conspiracies would preclude the state from prosecuting anyone who
entered into an agreement to commit a crime, where that second person is
cooperating with law enforcement authorities, or otherwise lacks
criminal intent. Instead, the court read the plain language of section
939.31 to focus on the criminal intent of a single defendant. It
concluded that the plain language of the statute embraces both
unilateral conspiracies as well as bilateral conspiracies.
Chief Justice Abrahamson filed a concurring opinion which was joined
in by Justice Bablitch.
Juvenile Law
Delinquency Proceedings Venue
State v. Cory J.G., No.
96-3148-FT (filed 23 Jan. 1998)
This case concerns venue in juvenile delinquency proceedings and
whether the state failed to establish proper venue in the fact-finding
hearing. The opinion was authored by Justice Crooks for a unanimous
supreme court.
As it pertained to this case, Wis. Stat. section 48.185 (1993-94) set
forth the appropriate county or counties in which a juvenile delinquency
proceeding may be held. It provided that venue could be in any of the
following: the county where the child resides, the county where the
child is present, or, in the case of a violation of state law, the
county where the violation occurred. [Note: The venue provisions for
juvenile delinquency proceedings are now codified at Wis. Stat. section
938.195.]
In this case the fact-finding hearing was held in Fond du Lac County.
The evidence showed that the violations of state law committed by the
juvenile occurred in Clark County not Fond du Lac County.
Further, the evidence failed to provide any proof that the juvenile was
present in Fond du Lac County when the petition was filed. In this case
the supreme court concluded that fixing venue on the basis of a
juvenile's "presence" in the county is dependent upon proof that the
juvenile was present there at the time the delinquency petition was
filed. Finally, the evidence failed to demonstrate that the juvenile
"resided" in Fond du Lac County when the petition was filed. With regard
to this basis for fixing venue, the supreme court concluded that the
term "resides" means "domiciled," that is, "living in the locality with
the intent to make that locality a fixed and permanent home." No
evidence was offered to show that the juvenile or his parents were
domiciled in Fond du Lac County.
Accordingly, the state did not prove any of the bases for
establishing venue in Fond du Lac County for the delinquency proceedings
against the defendant juvenile. This was fatal because the state must
prove venue beyond a reasonable doubt in juvenile delinquency
proceedings just as it must do in criminal proceedings. Though not an
element of the crime, venue becomes an issue before the trier of fact
when it is contested by the defendant, which is what occurred in this
case.
Property
Foreclosure Sales Redemption Period
GMAC Mortgage Corp. v.
Gisvold, No. 96-1663 (filed 28 Jan. 1998)
The supreme court aptly described the facts of this case as lengthy,
somewhat confusing, and not in dispute. In 1992 the Gisvolds defaulted
on their home mortgage. The mortgage holder, GMAC, secured a foreclosure
judgment in April 1993. Attempts to conduct foreclosure sales were mired
in the Gisvolds' bankruptcy proceedings. Petitioners successfully bid on
the property at a foreclosure sale held in June 1995. After several
delays, the sale was finally confirmed at a hearing in late December
1995. The Gisvolds were given until Jan. 17, 1996, to redeem their
property, after which the petitioners would have 10 days to pay the
balance of the purchase price and complete the sale. Just three hours
before the redemption period expired on Jan. 17, one of the Gisvolds
filed "yet another bankruptcy petition." Although that petition was
voluntarily dismissed on March 12, the petitioners did not receive
notice of the dismissal. On March 19 the Gisvolds paid the balance due
on the mortgage in an effort to "redeem" their property. Only then did
the petitioners learn that the bankruptcy petition had been
dismissed.
The circuit court excused the petitioners' failure to pay the balance
of the purchase price within 10 days of confirmation of the sale, as
required by section 846.17 of the Wisconsin Statutes (1993-94), and gave
them the chance to pay the balance. The judge also ruled that the
redemption period had expired before the Gisvolds paid the balance on
March 19. The court of appeals reversed. It held that the circuit court
had no equitable power to waive the petitioners' statutorily imposed
payment requirements. The 10-day period set forth in section 846.17 was
mandatory; hence, their failure to pay the balance resulted in the
forfeiture of their 10 percent deposit. The court of appeals also upheld
the Gisvolds' redemption.
The supreme court, in a decision authored by Justice Crooks, reversed
the court of appeals. First, it invalidated the Gisvolds' redemption
attempt on March 19. In this part of the opinion the court discussed the
intersection of the federal bankruptcy laws, particularly the automatic
stay provisions, on redemption rights and foreclosure actions in state
court. The Gisvolds had actual notice and "ample opportunity" to redeem
their property within the time frame prescribed by the trial court. They
failed to do so. (In a footnote the supreme court observed that
sanctions for "apparent abuse of the Bankruptcy Code" must be left to
the bankruptcy courts.)
The court also concluded that "the language of Wis. Stat. section
846.17 is mandatory insofar as it requires forfeiture of a purchaser's
deposit and resale of the property in the event the purchaser does not
comply with the ten-day limitation." In short, circuit courts have no
equitable authority to excuse noncompliance and must forfeit the
deposit. But the court also held that section 846.165 "contemplates
notice to the purchaser at a foreclosure sale of when the sale is
confirmed, when the mortgagor's redemption period ends, and when the
purchaser's ten-day period for payment of the purchase price balance
expires." On this record, the court was satisfied that the petitioners
had paid the balance of the purchase price within 10 days of the
effective date of the confirmation sale in June 1996.
Taxation
Property Tax Assessment Valuations Appellate Procedure
Hermann v. Town of Delavan,
No. 96-0171 (filed 23 Jan. 1998)
Nearly 90 property owners complained that their town had improperly
valued their lakefront and inland properties contrary to the Uniformity
Clause of Article VII, section 1 of the Wisconsin Constitution. The
taxpayers filed a complaint in the circuit court but nowhere alleged
that they had objected before the town's board of review (the board) or
were appealing the board's determination. The trial judge dismissed the
complaint for failing to state a claim for which relief could be
granted. The court of appeals affirmed, concluding that the taxpayers
had failed to exhaust the exclusive statutory remedies for addressing
overassessment claims.
The supreme court, in an opinion written by Justice Steinmetz,
affirmed. The sole issue before the court was: "Must a complaint
alleging a violation of the Uniformity Clause of the Wisconsin
Constitution be dismissed for failure to state a claim upon which relief
can be granted, where the complaint challenges the tax assessment
violation of certain real property, but fails to allege plaintiffs'
prior compliance with the property tax appeal procedures provided in
Wis. Stats. 70.47 (1995-96)?" First, any claim of overassessment,
"regardless of the basis upon which it is grounded, necessarily
questions the valuation of real property assessed for taxation." Chapter
70 of the Wisconsin Statutes sets forth a "comprehensive procedure" that
governs such challenges. Although Chapter 70 permits three forms of
appeal, all three avenues require the filing of an objection before the
board of review. The supreme court held "the detailed and comprehensive
objection and appeals procedures provided in chapters 70 and 74 were
intended to be the exclusive means by which taxpayers may challenge the
valuation of real property assessed for taxation." It also rejected a
variety of arguments grounded in case law and public policy. Deviations
from the statutory procedures would imperil the administration of
municipal tax laws.
Franchise Taxes Federalization of Corporate Income Taxes
Transition Rules
Lincoln Savings Bank v. Wisconsin
Department of Revenue, No. 96-0135 (filed 27 Jan. 1998)
Prior to 1962 Lincoln Savings was subject to federal but not
Wisconsin income tax.Between 1962 and 1987 both Wisconsin and federal
tax law permitted savings and loans to set aside reserves to cover bad
debts and to take deductions for bad debts. Each tax system used
different calculations for the deductions, and the Wisconsin tax law was
less favorable to taxpayers than the federal tax law in calculating the
deductions.
In 1987 Wisconsin "federalized" the Wisconsin income and franchise
tax law so that a corporate taxpayer's federal net taxable income would
become its Wisconsin net taxable income for years beginning in 1987.
See 1987 Wis. Act 27. The state Legislature recognized that
under federalization some taxpayers might lose deductions while others
would escape taxation on income. Thus the Legislature enacted l987 Wis.
Act. 27, section 3047(1)(a), which was a transition rule to provide for
adjustments over a five-year period.
In this case the Tax Appeals Commission interpreted section
3047(1)(a) to permit adjustment of bad debt reserves maintained by
Lincoln Savings from 1962 (the year in which it became subject to state
taxation) until 1986, but not earlier, as a means of transitioning to
the federalization of Wisconsin's income tax law. The commission's
interpretation upheld an assessment by the Wisconsin Department of
Revenue of additional franchise taxes and interest against Lincoln for
the years 1987 to 1990, because Lincoln had adjusted for bad debt
reserves maintained before 1962.
In a majority decision authored by Justice Geske, the supreme court
concluded that the commission's interpretation of section 3047(1)(a)
contravenes the intent of the Legislature as evidenced by the plain
language of the transitional rule. That intent was to create a mechanism
whereby all corporations subject to income tax in Wisconsin at the time
of enactment, could equalize their items of income, loss or deduction as
maintained for federal tax purposes, with those items as maintained for
Wisconsin income tax purposes. For some corporate taxpayers, the
Legislature recognized that equalization would involve substantial sums,
so section 3047(1)(a) permitted those corporations a transition period
in order to acclimate to the changes wrought by federalization. For
those corporations, equalization could be accomplished over five years.
The commission's interpretation of the transitional mechanism, which
effectively read in a limitation on which deductions could be equalized,
contravened the intent of the Legislature and, accordingly, the court
could not sustain the commission's interpretation.
Chief Justice Abrahamson filed a concurring opinion that was joined
by Justices Bablitch, Bradley and Crooks.
Torts
Statements at Legislative Hearings Absolute vs. Conditional
Privilege
Vultaggio v. Yasko, No.
96-0651 (filed 16 Jan. 1998)
The Whitewater City Council held a public meeting to consider the
city's need for additional office space. Defendant Yasko attended this
meeting and testified in favor of a proposal that would have used a
former middle school to remedy the space problem. She felt that
renovating the school would reverse the "destabilization" of her
neighborhood. During her statement to the council, she highlighted her
neighborhood's transition from family housing to college student housing
and openly criticized the upkeep of several buildings owned by the
plaintiff in that area. There was no evidence in the record that the
defendant was subpoenaed or invited to appear at the meeting, that she
was sworn under oath before testifying, or that she was directed in her
testimony by questions from the council. The meeting was broadcast in
its entirety on a local television station.
Three months later the plaintiff sued the defendant for defamation
based on the statements she made during the city council meeting.The
circuit court denied the defendant's motion for summary judgment and her
subsequent appeal was considered by the supreme court on certification
from the court of appeals.
The certified question was whether Wisconsin law should afford an
absolute privilege, or only a conditional privilege, for witnesses
testifying in legislative proceedings. In a majority decision authored
by Justice Wilcox, the court held that under the circumstances presented
in this case, such witnesses are not entitled to an absolute privilege.
In footnote the majority observed that by concluding that the absolute
privilege did not apply to legislative proceedings of the sort held in
this case, it did not decide whether the absolute privilege would apply
to witness testimony that is compelled by a subpoena, given under oath,
or directed and supervised by questions from the legislative body.
Though rejecting absolute immunity for the defendant, the court
concluded that testimony at a legislative proceeding of the sort
conducted in this case is deserving of a conditional privilege. That
privilege may be forfeited, however, if any of the following occur: 1)
the witness knows the defamatory matter to be false, or acts in reckless
disregard as to its truth or falsity; 2) the defamatory matter is
published for some purpose other than that for which the particular
privilege is given; 3) the publication is made to some person not
reasonably believed to be necessary for the accomplishment of the
purpose of the particular privilege; 4) the publication includes
defamatory matter not reasonably believed to be necessary to accomplish
the purpose for which the occasion is privileged; or 5) the publication
includes unprivileged matter as well as privileged matter.
Justice Bablitch filed a concurring opinion. Justice Bradley, joined
by the Chief Justice and Justice Steinmetz, dissented.
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