Court of Appeals Digest
This column summarizes selected published opinions
of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof.
Thomas J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W. Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Criminal Law
Possession of Child Pornography - Images Stored in Computer
Files
State v.
Whistleman, 2001 WI App 189 (filed 19 July 2001) (ordered
published 29 Aug. 2001)
The defendant was charged with multiple counts of child pornography
after police obtained photographs depicting children engaged in sexually
explicit behavior from computer zip-drive disks at the defendant's
residence. The child pornography statute prohibits possession of "any
undeveloped film, photographic negative, photograph, motion picture,
videotape or other pictorial reproduction or audio recording of a child
engaged in sexually explicit conduct." See Wis. Stat. § 948.12.
The issue before the court of appeals was whether possession of a
computer disk that stores images of child pornography is a violation of
this statute. More specifically, the court needed to resolve whether the
disks that store child pornography are included within the meaning of
the term "or other pictorial reproduction" as it is used in section
948.12.
In a decision authored by Judge Vergeront, the court concluded that
computer disks that store images of child pornography are included
within the meaning of the term "or other pictorial reproduction" as used
in the statute. The disks taken from the defendant's residence produce
visual images on a computer screen when a person inserts the disks into
a computer and clicks on a file. The court concluded that the disks thus
come within the ordinary meaning of "pictorial reproduction."
Said the court, "the Legislature's choice of the broad term 'or other
pictorial reproduction' following various specific items, which are
created and processed in different ways in order to produce a picture of
a child, indicates an intent to penalize items that are able to readily
produce pictures of children engaging in sexually explicit conduct,
whatever the particular process or technology. It is not reasonable to
conclude that in choosing the broad term 'or other pictorial
representation,' the Legislature intended to exclude one particular, and
increasingly common, means of storing and producing visual images"
(¶9).
Criminal Procedure
Terry Stops - Telephone Tips - 9-1-1 Call in Which Caller
Identifies Self
State v. Sisk,
2001 WI App 182 (filed 31 July 2001) (ordered published 29 Aug.
2001)
A police dispatcher received a 9-1-1 telephone call from a person
reporting that he had seen two men enter a building at a specific
address with guns. The caller described their race and clothing. The
caller also self-identified himself by providing his name. Officers
responded to the target address, arriving six minutes after the 9-1-1
call. They observed two men matching the caller's descriptions sitting
in a car one-half block from the specified address. The officers
approached the car, briefly questioned the suspects, and asked the
defendant, who was a passenger, to get out. A frisk revealed a gun in
the defendant's pants pocket.
The circuit court granted the defendant's motion to suppress the
evidence, ruling that the police did not have reasonable suspicion to
stop the defendant. The court believed that the 9-1-1 call was an
anonymous tip, reasoning that the fact that the caller gave a name was
not enough to establish the reliability of the information because the
call came from a pay phone and the caller (leaving nothing other than
his name to identify himself) had not allowed for verification.
In a decision authored by Judge Schudson, the court of appeals
reversed. The court concluded that, because the caller gave what he said
was his name, the circuit judge erred in viewing the call as anonymous.
Whether the caller gave correct identifying information, or whether the
police ultimately could have verified his identify, the fact remains
that the police could have reasonably concluded that the caller, by
providing self-identifying information, risked that his identity would
be discovered.
Therefore, unlike the situation where a tip comes from an unknown
location by an unknown caller, here the caller provided self-identifying
information, that is, his name. [The evidence in this case established
that the police did not locate the caller or confirm his identity before
responding to the scene. However, the court noted that it would be
dangerous to require police to take critically important time to attempt
to verify identification rather than respond to crimes in progress. See
¶9.]
Analyzing the reasonableness of the police suspicion in this case,
the court noted that the caller gave information about the suspects and
their location, which the police verified before stopping them. The
caller also gave what he said was his name. The court could see no legal
or logical reason to indulge the "factual fiction" that would convert
this nonanonymous call to an anonymous one, and thus exclude its
apparent reliability as a very significant factor to be considered in
the totality of the circumstances determining the lawfulness of the
investigative stop.
The court thus concluded that when a caller identifies himself or
herself by name, thus providing self-identifying information that places
his or her anonymity at risk, and when the totality of the circumstances
establishes a reasonable suspicion that criminal activity may be afoot,
the police may execute a lawful stop. See ¶11.
Search and Seizure - Administrative Searches
State v.
Jackowski, 2001 WI App 187 (filed 26 July 2001) (ordered
published 29 Aug. 2001)
The defendant was convicted of possessing a firearm silencer and of
possessing a short-barreled rifle. On appeal, he challenged the denial
of his motion to suppress evidence.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. The evidence was uncovered when three members of the city's
building inspection department, along with several police officers,
executed a "special inspection warrant" that had been issued by a
municipal judge for the defendant's premises. During this initial
search, the accompanying police officers observed short-barreled rifles
and silencers amid the "extreme state of disarray." Police later
obtained a criminal search warrant for purposes of reentering the home
and seizing the weapons.
On appeal, the defendant challenged only the initial building
inspection warrant, not the criminal warrant. Defendant "conceded" the
city's "regulatory package that includes compulsory inspections."
Officials applied for the inspection warrant under oath and generally
followed the "illustrative" format set forth in Wis. Stat. section
66.0119(3). The application described the officials' authorization, the
code provisions sought to be enforced, and the need for the inspection
based on citizen complaints and prior violations. Nothing in the record
demonstrated that police used the building inspectors as their "stalking
horse." Finally, the court held that the owner's refusal to grant
consent is not a condition precedent for obtaining administrative
warrants.
Sentencing - Consideration of Behavior Underlying Expunged
Convictions
State v. Leitner,
2001 WI App 172 (filed 12 July 2001) (ordered published 29 Aug.
2001)
Wisconsin's expungement statute provides that "when a person is under
the age of 21 at the time of the commission of an offense for which the
person has been found guilty in a court for violation of a law for which
the maximum penalty is imprisonment for one year or less in the county
jail, the court may order at the time of sentencing that the record be
expunged upon successful completion of the sentence if the court
determines the person will benefit and society will not be harmed by
this disposition." See Wis. Stat. § 973.015. The statute further
provides that upon successful completion of the sentence, the detaining
or probationary authority shall issue a certificate of discharge which
shall be forwarded to the court of record and which shall have the
effect of expunging the record.
Among the issues in this case are whether section 973.015 prohibits a
sentencing court from considering behavior underlying a prior conviction
that has been expunged and whether the statute directs law enforcement
agencies, such as a district attorney's office, to destroy all records
documenting the behavior underlying an expunged conviction.
In a decision authored by Judge Lundsten, the court concluded that
the plain language of the statute does not prohibit a sentencing court
from considering behavior underlying a prior conviction that has been
expunged. "Accordingly, if such behavior comes to the attention of a
sentencing court through a means apart from government records, there is
not even an arguable violation of sec. 973.015" (¶47).
Regarding the question of whether the expungement statute required
the district attorney in this case to destroy his records relating to
the defendant's expunged convictions, section 973.015 is entirely silent
regarding district attorneys' offices and other law enforcement
agencies. It speaks only of the "court of record." Thus, there is
nothing in the language of the expungement statute that directs law
enforcement agencies to destroy records relating to an expunged
conviction.
"In summary, we hold that Wis. Stat. sec. 973.015 does not require
law enforcement agencies, such as a district attorney's office, to
destroy records relating to an expunged conviction. Further, sec.
973.015 does not prohibit sentencing courts from considering behavior
underlying expunged convictions" (¶53).
Employment Law
Covenant Not to Compete - Absence of Geographic
Limitations
Equity Enterprises Inc. v.
Milosch, 2001 WI App 186 (filed 11 July 2001) (ordered
published 29 Aug. 2001)
The defendant was an agent/employee of Equable Securities for
approximately 15 years. Equable sells insurance and securities products.
After terminating his employment with Equable, the defendant contacted
Equable customers to solicit their business. Equable thereafter filed an
action in circuit court seeking to enforce a covenant not to compete
contained in employment contracts that had been executed between the
defendant and Equable. Among the issues on appeal was the enforceability
under Wis. Stat. section 103.465 of the noncompete provisions of the
contracts. As characterized by the court, the contracts restrict the
defendant from soliciting any Equable customers for a period of 18
months after termination of employment. The contracts are silent as to
what territorial parameters the defendant must abide by, thereby
implying at the least a nationwide restriction.
In a decision authored by Judge Anderson, the court of appeals
concluded that this provision of the contracts cannot escape the
requirement of territorial reasonableness simply because it does not
include any mention of geographical parameters. The statute provides
that a covenant not to compete within a specified territory and during a
specified time is lawful and enforceable only if the restrictions
imposed are reasonably necessary to protect the employer or principal.
Without any specified territory, the provision of the defendant's
employment contracts described above is void.
In footnote the court observed that the Wisconsin Supreme Court's
decision in Farm Credit Services
of North Central Wisconsin, ACA v. Wysocki, 2001 WI 51, did not
alter its conclusion that the covenant not to compete in this case is
invalid. In Wysocki, the supreme court held that where the covenant not
to compete contains a restriction "narrowly tailored to a customer
list," the lack of a geographical restriction is not fatal. In this
case, neither party discussed the "customer list" restriction in the
employment contracts and ordinarily the court of appeals does not
consider an issue not raised on appeal or in the trial court. However,
the court noted that the "customer list" restriction in this case was
far from being narrowly tailored. In Wysocki, the restriction prohibited
contact with any client the employee had serviced in the year prior to
his date of separation. In contrast, the "customer list" restriction in
this case prohibited the defendant from doing business with any customer
of Equable whom the defendant serviced at any time during his employment
with the company. "This restriction is unreasonable because it would
prohibit [the defendant] from doing business with a customer he serviced
during his first weeks of employment in 1982 who subsequently
transferred his or her business to a competitor of Equable. Such an
overbroad restriction is invalid because preventing [the defendant] from
contacting former Equable customers is not reasonably necessary to
protect Equable's legitimate business interests." See footnote 4.
Family Law
Voiding Marriage After Death of Spouse - Void Marriage When
Contracted Within Six Months of Divorce
Ellis v. Estate of
Toutant, 2001 WI App 181 (filed 25 July 2001) (ordered
published 29 Aug. 2001)
Marjorie Toutant was a lifelong resident of Racine, Wis., and was
married to James for many years. He passed away in 1997. In September
1999 Marjorie married John Ellis in Texas, 30 days after his Scottish
divorce. Following the wedding, the couple returned to Racine. Marjorie
died two weeks later; she and Ellis had remained in Racine from the date
of their return from Texas until her death.
Marjorie died testate and in her will she named her son Kevin as the
personal representative. Kevin filed the will and a petition for
administration, and Ellis filed a Surviving Spouse's Selection of
Personal Property, selecting all of his wife's clothing, jewelry, and
other personal property, including her car. Kevin filed a petition for
declaratory judgment asking the court to adjudge the 1999 marriage of
his mother and Ellis null and void. The circuit court ruled that the
marriage between the two was void because it violated Wisconsin's
six-month waiting period between a divorce and a subsequent marriage. In
an opinion authored by Judge Snyder, the court of appeals affirmed.
Ellis argued that the trial court did not have the authority to annul
the marriage because a marriage cannot be annulled after death. The
court of appeals agreed with this assertion. But, in this case, the
estate was not asking the marriage to be annulled. Rather, it sought a
declaration that the marriage was null and void. The court concluded
that a marriage can be declared null and void after the death of a
spouse. Wis. Stat. section 767.03 provides that no marriage may be
annulled after the death of either party to the marriage; it does not
prohibit declaration that a marriage is null and void.
The trial court declared the marriage null and void pursuant to Wis.
Stat. section 765.03. Subsection (2) of that statute provides that "it
is unlawful for any person, who is or has been a party to an action for
divorce in any court in this state, or elsewhere, to marry again until 6
months after judgment of divorce is granted, and the marriage of any
such person solemnized before the expiration of 6 months from the date
of the granting of the judgment of divorce shall be void." Thus, said
the court, it is irrelevant that Ellis' divorce was granted in
Scotland.
Ellis next argued that the marriage was valid because it was valid in
Texas where it was celebrated. This assertion, however, ignores the
provisions of section 765.04. The latter statute expressly proscribes
the celebration of marriage outside of Wisconsin to avoid the
prohibition of section 765.03(2) described above. Among other things,
section 765.04(2) provides that proof that a person contracting a
marriage in another jurisdiction was domiciled in this state within 12
months prior to the marriage and resumed residence in this state within
18 months after the date of departure from this state is prima facie
evidence that at the time of the marriage, the person resided and
intended to continue to reside in Wisconsin. Thus, if Ellis resided in
Wisconsin within 12 months before the marriage and within 18 months
afterwards and he intended to continue to reside in this state,
Wisconsin prohibited his remarriage within six months of his divorce,
whether the remarriage occurred in Wisconsin or Texas. See ¶18.
Ellis spent 360 days living in Marjorie's home in Racine with the
majority of his personal belongings from February 1998 through September
1999 and, said the court, it cannot be credibly argued that his
residence was anything other than Marjorie's Racine home. The court
concluded that the facts demonstrated that Marjorie and Ellis were
Wisconsin residents and intended to continue to be Wisconsin residents
and that, under the statutes cited above, the marriage less than six
months after Ellis' divorce was void.
Insurance
Liability - Exclusions - "Regular Use"
Martin v. American Family
Mut. Ins. Co., 2001 WI App 178 (filed 24 July 2001) (ordered
published 29 Aug. 2001)
While driving his father's pickup truck with his father's consent,
Eric injured the plaintiff. Eric used the pickup truck "regularly." Eric
also owned a 1983 van that was insured by American Family. The trial
court ruled that the policy on the van did not provide liability
coverage for injuries suffered by plaintiff while Eric was driving his
father's truck.
The court of appeals, in an opinion written by Judge Fine, affirmed.
The sole issue was whether the liability coverage on the 1983 van
applied to the accident involving Eric's father's truck. The American
Family policy's "regular use" exclusion eliminated liability coverage
for injuries inflicted while driving a vehicle, other than the "insured
car," which is "available for regular use by you or any resident of your
household." The court held that Wis. Stat. section 631.43(1) did
invalidate the exclusion, a conclusion supported by case law. More
precisely, the policies did not indemnify for the "same loss." "In this
case, Eric Johnsen's 1983 van policy promised to indemnify him for
liability resulting from his driving the 1983 van and those cars that
were not available for his regular use. That risk of loss - excluding,
as it did, coverage for his driving his father's pickup truck - was
different than the risk of loss covered by his father's policy on the
truck, which promised to provide liability coverage for accidents caused
by an authorized driver of the pickup truck" (¶10).
Judge Schudson dissented, arguing that the policies indemnified for
the same loss and that case law did not compel the majority's
resolution.
"Motorized Vehicles" - Liability - Exclusions - Supplemental
Coverage
Rural Mutual Ins. Co. v.
Welsh, 2001 WI App 183 (filed 26 July 2001) (ordered published
29 Aug. 2001)
Eleven-year-old Skylar was killed while operating a forklift near or
on a rural roadway, near a farm owned by the Welshes. Welsh owned the
forklift and allowed Skylar to operate it without supervision. Rural
Mutual had issued both Farmowners and Homeowners policies to the
Welshes, which provided liability coverages on that date. In a
declaratory judgment action, the court granted summary judgment finding
that Rural's liability coverage did not cover Skylar's death under
either policy. The Welshes and Skylar's parents appealed.
The court of appeals, in an opinion written by Judge Deininger,
reversed. The general issue was whether the policies provided "coverage
for an occurrence involving a 'motorized vehicle' on the present facts"
(¶5). The precise issue involved "whether the 'supplemental
coverage' of certain occurrences involving motorized vehicles creates an
exclusion from principal liability coverage for all other occurrences
involving motorized vehicles" (¶11). The policy language in this
respect was "ambiguous" because the insurer and the insured advanced
reasonable constructions "regarding occurrences involving motorized
vehicles that are neither motor vehicles nor used in racing" (¶15).
A reasonable person would expect that the policies provided coverage for
Skylar's death because "it would not be reasonable to expect an insured,
after he or she
had consulted [the liability coverage sections and specific
exclusions] and found no exclusion from or limitations on coverage
relating to motorized vehicles not used for racing, to then consult the
'supplemental coverages' on the chance that an exclusion from general
liability coverage might be implied or inferred from these additional,
more specific grants of coverage" (¶17).
Lemon Law
UCC - Consumers - Remedies
Smyser v. Western Star
Trucks Corp., 2001 WI App 180 (filed 18 July 2001) (ordered
published 29 Aug. 2001)
Smyser purchased a new truck from defendant truck dealer in 1997. The
truck's vibration problems necessitated numerous repairs. The dealer did
not dispute that the repairs failed and the truck was a "lemon" within
the meaning of Wis. Stat. section 218.0171(1)(h), (2)(a) (1999-2000).
With consent of the lienholder who had financed the truck's purchase,
Smyser turned the truck and its keys over to the dealer, which obtained
clear title by paying the balance of the loan to the lienholder (who
held title). The dealer later sold the same vehicle to a third party.
Ten months later, Smyser sought more than $40,000 in damages under the
Lemon Law. A complaint alleged a Lemon Law claim against the truck's
manufacturer and revocation of Smyser's acceptance of the truck under
the UCC against both the dealer and the manufacturer. The trial court
granted summary judgment in favor of the dealer and the
manufacturer.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. First, Smyser's claims under Wis. Stat. section
218.0171(2)(a), which obligates manufacturers to repair a nonconformity
covered by a warranty, failed because the undisputed evidence
demonstrated that the dealer did make a reasonable attempt to repair the
vehicle. Second, Smyser also claimed that he was entitled to a refund
and related expenses under subsec. (2)(b). The Lemon Law requires,
however, that when the claim is made, the consumer must offer to deliver
the vehicle and title to the manufacturer. Obviously Smyser could not
comply because he had already surrendered the truck and title some
months earlier. The court refused to rewrite the statute's clear and
unambiguous terms "simply because the law is remedial in favor of
consumers" (¶15). In sum, Smyser was no longer a "consumer" when he
made his Lemon Law claim.
Smyser also argued that he had a separate claim under the UCC,
specifically Wis. Stat. section 402.608, because his delivery of the
vehicle and title constituted revocation of his acceptance of the truck.
This claim failed for the same reasons that his Lemon Law claims
floundered. "[B]y using the vehicle for nearly a year and a half and by
then transferring the title and possession, Smyser was signaling his
continuing acceptance, not revocation, of that acceptance, of the
vehicle. Smyser's attempt to revoke his acceptance nearly two years
after delivery of the vehicle and after he engaged in conduct confirming
his ownership of the vehicle stands the revocation of acceptance
provisions of Wis. Stat. § 402.608 on its head" (¶19).
Property
Restrictive Covenants - Waivers
Pietrowski v.
Dufrane, 2001 WI App 175 (filed 17 July 2001) (ordered
published 29 Aug. 2001)
The Dufranes built a detached two-and-one-half car garage on their
property, which violated their subdivision's restrictive covenants,
dated 1940. The circuit court entered a raze order after it entered
summary judgment on behalf of neighbors who sued to enforce the
restrictions.
The court of appeals, in an opinion written by Judge Curley,
affirmed. First, the court rebuffed the Dufranes' contention that the
neighbors waived the right to enforce the restriction because they had
not objected to other violations. Indeed, the plaintiff neighbors had
violated various restrictions themselves, but the court found them to be
"slight" violations in contrast to the Dufranes' "major" violation. For
similar reasons, the court rebuffed a second defense: the plaintiffs'
"unclean hands." Finally, the Dufranes argued that "numerous other
violations of the restrictive covenant in the subdivision demonstrate a
change in the character of the neighborhood, which constitutes an
abandonment of the restrictive covenant" (¶14). The court surmised
that the restrictions limited the area to single family dwellings,
prohibiting both multiple family dwellings and businesses. Sheds and the
like constructed by other neighbors did not vitiate this intent. The
size of the Dufranes' unattached garage, however, invited the risk that
it might be used for purposes inconsistent with single family
dwellings.
Mental Commitments
Timely Hearings - Extensions
County of Milwaukee v.
Edward S., 2001 WI App 169 (filed 3 July 2001) (ordered
published 29 July 2001)
A court committed Edward S. under Wis. Stat. chapter 51. The sole
issue on appeal was "whether the 14-day deadline for a final hearing in
an involuntary commitment proceeding pursuant to Wis. Stat. §
51.20(7)(c) (1999-2000) may be extended when the subject of the
commitment creates the need for an extension."
Affirming an order denying Edward's post-commitment motion for
relief, the court of appeals held that judicial estoppel was applicable
and State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325 (Ct. App.
1982), was distinguishable. Lockman held that the 14-day deadline could
not be extended, but in this case Edward forced the adjournment and
necessitated the modified timeline because he unilaterally fired his
lawyer the day before the 14-day limit expired. A contrary holding
invited detained subjects to manipulate the judicial system. Edward also
contended that the applicable time limits could not be extended because
section 51.20 did not expressly provide for extensions of mandatory time
limits under these circumstances. The court refused to even address this
argument based on judicial estoppel: Edward asked for the adjournment
and received it.
Sexually Violent Persons
Probable Cause - 72-hours Rule - Jurisdiction
State v. Beyer,
2001 WI App 167 (filed 7 June 2001) (ordered published 29 Aug. 2001)
Beyer was convicted of sexual assault in 1981 and the state filed a
petition for his commitment as a sexually violent person as his release
date approached. Acting pursuant to Wis. Stat. section 980.04, the court
ordered Beyer's detention and that a probable cause hearing be held
within 72 hours. On the date of the scheduled hearing, Oct. 12, Beyer
filed a substitution request at 5:00 p.m. A new judge was assigned on
Oct. 22 and the hearing finally conducted on Dec.14. A jury later found
Beyer to be a sexually violent person.
The sole issue on this appeal was whether the court lost competency
to proceed when the probable cause hearing was not held within the
72-hour period. The court of appeals, in an opinion written by Judge
Dykman, held that the 72-hour time limit is directory and not mandatory
(¶10). Nonetheless, trial courts cannot extend the time
indefinitely; there are limits to the judge's discretion. Here, however,
the delay was reasonable under the statute and due process analysis,
particularly since Beyer filed his request for substitution after
"normal business hours" in a single-judge county. The court of appeals
remanded the case for a determination whether the state met its burden
beyond a reasonable doubt that, when it filed the chapter 980 petition,
Beyer was within 90 days of release or discharge from his sentence. This
section of the opinion tackles the retroactivity issue, which has been
addressed in several other cases.
Torts
Intoxicated Employees - Vicarious Liability
Stephenson v. Universal
Metrics Inc., 2001 WI App 173 (filed 24 July 2001) (ordered
published 29 Aug. 2001)
After he became "very drunk" at a company-sponsored holiday party,
Devine was killed while driving home. He also killed the driver of the
other vehicle, whose estate brought this action against Devine's
employer and others. This appeal addresses unresolved issues related to
a prior decision at 2001 WI App 128, in which the court held that
another employee, Kreuser, was not immune from liability based on his
alleged breach of a promise to drive Devine home. See Wis. Stat. §
125.035 (liquor-provider immunity). The issues on this appeal were
decided on summary judgment. The court of appeals, in an opinion written
by Judge Fine, affirmed in part and reversed in part.
First, the court held that the record raised a jury question whether
Kreuser was acting within the scope of his employment when he allegedly
offered to drive Devine home, a promise he failed to act on. Closely
examining the record, the court observed that the holiday party "had
business as well as social purposes." For these reasons a jury might
find that the employer's insurance policy provided liability coverage
and the employer itself was vicariously liable based on Kreuser's breach
of duty. The court therefore reversed the grant of summary judgment,
dismissing claims brought by the parties against the employer and its
insurer.
Second, the court of appeals affirmed the dismissal of claims against
the employer based on respondeat superior liability for Devine's drunken
driving. The argument ignored the "broad grant of immunity" in section
125.035(2) and case law absolving employers of responsibility for an
employee's driving to and from work, or a company-sponsored event,
except where it has "control over the method or route of travel."
Third, the employer had no duty to prevent Devine from getting drunk.
In particular, section 125.035 "grants immunity from liability
predicated on letting someone else drive while drunk" (¶22).
Wisconsin
Lawyer
