Vol. 71, No. 9,
September 1998
Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Attorneys | Criminal
Procedure | Evidence | Juvenile Law
|
| Municipal Law | Torts | Worker's
Compensation |
Evidence
Jury Deliberations - Submitting Exhibits - Witness's Statements - Experts
State v. Mayer, No.
97-3664-CR (filed 2 June 1998) (ordered published 29 July 1998)
The court of appeals, in an opinion written by Judge Myse, affirmed the
defendant's conviction for battering a woman that he later married. The
altercation occurred at a bar before the two were married. An eyewitness
provided a written statement to police describing the battery. At trial,
the victim recanted but the jury heard the eyewitness's testimony and the
judge received her written statement into evidence. During deliberations
the jury asked to see the written statement. The trial judge permitted the
jury to view the exhibit because it rebutted allegations that she was too
intoxicated to be accurate.
A judge must consider three issues when submitting exhibits to the jury:
1) Will it assist the jury? 2) Will the exhibit prejudice a party? and 3)
Is there a risk that the jury will use the exhibit improperly? The written
statement's "coherence and neatness" undoubtedly assisted the
jury in assessing whether the witness was too intoxicated to be credible.
Although the "general rule" in Wisconsin "is to read the
statement to a deliberating jury rather than submitting it," the jury
in this case had a "valid independent need to physically examine the
statement. " Finally, there was little risk of misuse because the statement
contained no inadmissible evidence.
The court of appeals also ruled that expert testimony on "battered
women's syndrome" (BWS) was properly admitted despite the defendant's
claim that BWS testimony is inappropriate in cases of a "single assault."
The opinion canvasses the case law on BWS and the admissibility of expert
psychological testimony to assist a jury.
Juvenile
Law
"Reverse Waivers" - Wis. Stat. section 970.032(2)
Not Unconstitutionally Vague
State v. Armstead, No.
97-3056-CR (filed 23 June 1998) (ordered published 29 July 1998)
Wis. Stat. section 970.32(2) provides that, with respect to certain juveniles
charged in the first instance in adult court, the adult court shall retain
jurisdiction unless the child proves by a preponderance of the evidence
all of the following: 1) that, if convicted, the child could not receive
adequate treatment in the criminal justice system; 2) that transferring
jurisdiction to the juvenile court would not depreciate the seriousness
of the offense; and 3) that retaining jurisdiction is not necessary to deter
the child or other children from committing the violation of which the child
is accused under certain statutorily specified circumstances.
In this case the juvenile claimed that these "reverse waiver"
criteria are unconstitutionally vague. In a decision authored by Judge Curley,
the court of appeals disagreed. Responding to the specifics of the defendant's
attacks, the court concluded that the terms "adequate treatment,"
"depreciate the seriousness of the offense," and "necessary
to deter the child or other children" are fairly definite. The terms
provide trial courts with standards to use in deciding whether to retain
jurisdiction, and do not require or allow trial courts to create their own
standards. Although the standards are strict and therefore make it difficult
for juveniles to prove that their case meets the criteria, this does not
make the standards vague. Said the court, strictness and vagueness are not
synonymous. Accordingly, the court concluded that section 970.032(2) is
not unconstitutionally vague.
Municipal
Law
Zoning - Local Rule Limiting the Number of Variance Requests
for the Same Property
Tateoka v. City of Waukesha
Board of Zoning Appeals, No. 97-1802 (filed 24 June 1998) (ordered
published 29 July 1998)
The City of Waukesha Board of Zoning Appeals has adopted a rule regarding
rehearings and reconsiderations of zoning variance requests. It provides
that "rehearings, reconsiderations and new applications seeking the
same relief concerning the same property after a previous application has
been denied will not be heard by the Board of Appeals unless a substantial
change of conditions or circumstances has intervened between the time the
matter was first decided by the Board of Appeals and the subsequent application.
A change of ownership or the passage of time without additional conditions
or circumstances will not justify another hearing before the Board."
Writing for the court of appeals, Judge Nettesheim concluded that the
Board of Appeals did not exceed its jurisdiction when it adopted this rule
and that the rule does not conflict with Wis. Stat. section 62.23(7)(e)6,
which governs the time period in which the Board should hear and decide
a variance request and the notice which is to be given before doing so.
The appellate court further held that the rule is reasonably related to
the Board's legitimate interest in efficiency and in the finality of its
decisions. As such, it did not violate the petitioner's right to due process
and equal protection.
In the course of its opinion the appellate court noted that respected
commentators in the area of municipal law have observed that a rule such
as the one at issue in this case is widely accepted.
Torts
Bad Faith - Third Parties
Ristow v. Threadneedle Ins.
Co., No. 97-0309 & 97-0678 (filed 16 June 1998) (ordered published
29 July 1998)
A truck driver was injured while working at a port in South Carolina.
He filed a claim with the port's liability insurer but never received any
money. The driver then began this bad faith action against the port's liability
insurer and others. The circuit court dismissed the complaint.
The court of appeals, in an opinion written by Judge Anderson, affirmed.
First, the court flatly refused to extend the tort of bad faith against
insurers to cases where third-party claimants have "settled" their
claim with the insurer which then breaches the settlement. The supreme court
had previously rejected this extension in Kranzush v. Badger State Mutual
Casualty Co. (1981). Second, the plaintiffs' breach of contract claim
also was properly dismissed because it had been filed after the South Carolina
statute of limitations had expired. South Carolina's statute applied by
virtue of Wisconsin's borrowing statute, section 893.07(1). Moreover, the
supreme court had recently held that the borrowing statute applies to contract
actions. Abraham v. General Casualty Co., (1998). The last significant
event giving rise to the plaintiffs' claims was the alleged breach of the
settlement, which occurred in South Carolina.
Worker's
Compensation
Compensation for Medical Treatment -
Employee's Two Choices of Physicians
Hermax Carpet Marts v. Labor
and Industry Review Commission, No. 97-1119 (filed 23 June 1998)
(ordered published 29 July 1998)
Wis. Stat. section 102.42 of the Worker's Compensation Law requires an
employer to compensate an injured employee for his or her medical treatment,
but restricts the employee to two choices of practitioners. Among the issues
in this case was whether the employee exceeded his two choices under the
statute.
In a decision authored by Judge Curley, the court of appeals concluded
that, for purposes of section 102.42, an employee "chooses" a
practitioner by seeking treatment from that practitioner and by seeking
reimbursement for that practitioner's expenses from the employee's employer
or its insurance carrier. In this case, although the injured employee sought
treatment from four practitioners, he only sought reimbursement for the
expenses related to two practitioners. Therefore, as a matter of law, he
did not exceed his choice of physicians under section 102.42 even though
he sought reimbursement for the expenses of the first and fourth practitioners
who treated him.
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.
|