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 |
Attorneys
Attorney Fees - Incivility - Sanctions
Aspen Services Inc. v. IT Corp.,
No. 97-0897 (filed 10 June 1998) (ordered published 29 July 1998)
IT Corporation leased equipment from Aspen Services. In a relatively
straightforward contract dispute, a jury awarded Aspen about $18,300 in
unpaid rent against IT. The judge ruled that IT's counterclaims were precluded
by the lease. Under terms of the lease, Aspen also sought to recover $112,985
in attorney fees, costs, and disbursement. Based on the incivility of Aspen's
attorneys in the conduct of the litigation, the judge awarded only $68,000.
The court of appeals, in an opinion written by Judge Anderson, affirmed
in an opinion that analyzes a judge's authority to control and sanction
incivility among lawyers. Appellate courts will defer to the exercise of
discretion by trial judges, who have been charged "to exercise more
control by appropriate sanctions." Here the trial judge characterized
the attorneys' behavior as "overtrial" and concluded that the
attorney fees were out of proportion to the result.
Trial courts and appellate courts have statutory and inherent powers
to enforce civility in the courtroom. This authority is independent from
Supreme Court Rule (SCR) 62, "Standards of Courtesy and Decorum for
the Courts of Wisconsin." Although SCR 62 cannot be enforced by the
Board of Attorneys Professional Responsibility, a judge can use it as a
basis for imposing sanctions for incivility. In this case, the judge properly
exercised his inherent and statutory power under section 802.05 of the Wisconsin
Statutes in finding that "Aspen's attorney engaged in conduct which
impeded IT's efforts to settle the dispute prior to the start of the lawsuit,
failed to attempt to expeditiously reconcile differences through negotiations
and the character of the services rendered was inappropriate." Nor
was it necessary for the judge to particularize the offending conduct as
opposed to characterizing counsel's general behavior based on the entire
record. Judge Anderson's opinion provides numerous examples of the attorneys'
incivility based on the record. In sum, the attorneys' behavior was "unprofessional,
repeated, and egregious."
The court also rejected the attorneys' argument that the trial judge
had failed to exercise appropriate control. The judge "conducted himself
in an exemplary manner when confronted with contentiousness between the
attorneys." Not only did the judge make "every effort to keep
the attorneys focused on the real issues in dispute," but "[h]e
also recognized that the efficient use of limited judicial resources was
not served by micro-managing the parties' discovery disputes."
Finally, the court took up several issues relating to costs and expenses.
The claim that the judge miscalculated the costs of photocopying should
have been raised at the trial court level; thus, the issue was waived. The
judge also exercised appropriate discretion in assessing the costs for a
referee on discovery disputes and the cost of a videotape deposition. The
judge properly considered the misbehavior of Aspen's attorneys in gauging
allowable costs.
Criminal
Procedure
Exculpatory Evidence - Hearsay - Harassment - Stalking
State v. Sveum, No.
97-2185-CR (filed 7 May 1998) (ordered published 29 July 1998)
The defendant was convicted of stalking, harassment, violating a harassment
order, and criminal damage to property. Affirming the convictions, the court
of appeals, in an opinion written by Judge Dykman, ruled that the evidence
was sufficient and that alleged exculpatory evidence was properly excluded.
In order to support his alibi defense, the defendant called a third-party
witness who was asked to testify to a statement made by the defendant. The
trial judge excluded the testimony as hearsay. Upholding this ruling, Judge
Dykman explained that the statement was offered for the truth of the matter
asserted; namely, the date that the defendant visited the witness to pick
up a motorcycle. The court refused to consider the statement's admissibility
under section 908.03(3) (statements of present state of mind) because he
failed to offer it under this exception at trial.
The court of appeals also addressed the sufficiency of the evidence supporting
several counts and in the process interpreted several statutory terms. Under
the harassment statute, section 947.0133(1m)(b), the "act" of
harassment must be "accompanied by a credible threat." The term
"accompany" means "to exist or occur in conjunction or association
with." Threats uttered before the "act" of harassment can
satisfy the statute as long as they still "exist" at the time
of the act; that is, they produce the requisite fear in the victim. Under
the stalking statute, section 940.32, the defendant's "acts" must
induce fear in the victim; the State does not have to establish that the
defendant's "course of conduct" induced the fear.
Jury Trials - Dismissal of Juror During Trial for Cause
State v. Williams, No.
97-1276-CR (filed 9 June 1998) (ordered published 29 July 1998)
The defendant was tried before a jury of 13 on numerous felony charges.
Before closing arguments and the court's instructions to the jury, the trial
court dismissed one of the 13 jurors because it had come to the court's
attention that this juror did not respond truthfully to certain questions
on voir dire. The defendant argued that dismissal of this juror was error.
In a decision authored by Judge Fine, the court of appeals disagreed.
Although a trial court in Wisconsin may not substitute an alternate for
a deliberating juror, it does have the discretion to discharge a regular
juror for cause during trial. Failure to respond truthfully to voir dire
questions is sufficient cause to discharge a juror during the trial. Contrary
to the defendant's contention, specific proof of bias is not required, as
it is when a party seeks to overturn an adverse verdict. Moreover, a litigant
has no right to insist on the retention of a juror merely because that juror
might be biased in the litigant's favor.
In this case the trial court weighed the appropriate considerations and
determined that the integrity of the trial and of the jury deliberation
would be advanced if the case were given to the 12 remaining jurors. This,
said the court of appeals, was a reasonable decision under the circumstances.
Revocation of Probation - Certiorari Review
in the "Court of Conviction"
Drow v. Schwartz, No.
97-1867 (filed 19 May 1998) (ordered published 29 July 1998)
The defendant pled no contest to several felony offenses. The court withheld
sentence and placed him on probation. Ultimately, probation was revoked
and the defendant was imprisoned. The revocation decision was affirmed by
administrative appeal and the defendant filed a petition for a writ of certiorari
to challenge the revocation. A hearing was held in circuit court and the
court affirmed the revocation.
On appeal the defendant contended that his petition for writ of certiorari
was not heard in the "court of conviction." He relied upon State
ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971). The
Johnson court concluded that the Legislature provided probationers
and parolees a right to a revocation hearing, and that judicial review of
that hearing is to be "directed to the court of conviction." In
this case the court of appeals interpreted "court of conviction"
to mean precisely what it simply provides. In so holding, it rejected the
state's argument that Johnson's requirement is satisfied if the petition
is heard by any circuit court sitting in the county of conviction. It granted
the defendant relief because his writ of certiorari was heard in a different
branch of the circuit court from that in which he was originally
convicted. In footnote the court indicated that it was not suggesting that
Johnson requires that the same judge who sentenced the defendant
must hear the writ of certiorari.
Prison Discipline - Certiorari Review
State ex rel. Luedtke v. Bertrand,
No. 97-3238-W
State ex rel. Dowdley v. Circuit
Court for Dane County, No. 98-0107-W (filed 11 June 1998) (ordered
published 29 July 1998)
Prisoners Luedtke and Dowdley petitioned for supervisory writs directing
circuit courts to grant their petitions to commence certiorari actions under
Wis. Stat. section 814.9 without payment of fees. In a decision authored
by Judge Dykman, the court of appeals held that in deciding whether a petitioner's
proposed action fails to state a claim, the circuit court should review
the certiorari petition using the same standard that applies to ordinary
civil complaints. Second, this standard of review is not "discretionary,"
but rather, whether a certiorari petition states a claim is a question of
law, as with other civil complaints. Third, even though a certiorari petition
may allege an apparently insubstantial harm, such as minimal loss of recreational
time, the circuit court must consider that a more complete development of
the case may reveal collateral consequences of prison disciplinary decisions.
Finally, the certiorari petition need not conclusively establish that an
error was committed in order to state a claim.
Erroneous Jury Instructions - Defendant's Presence
State v. Peterson, No.
97-3294-CR (filed 9 June 1998) (ordered published 29 July 1998)
The court of appeals affirmed the defendant's conviction for battery
to a child. The battery involved the use of excessive force in disciplining
his step-daughter.
Judge Myse, writing for the court, held that the trial judge's error
in instructing the jury on the "privilege" to use force did not
prejudice the defendant. The focus throughout the trial was on whether the
force was "excessive." Thus, the court refused to eliminate harmless
error analysis when scrutinizing erroneous substantive jury instructions.
The court also rejected the argument that error occurred when the judge
responded to the jury's questions without securing either the defendant's
presence or a waiver. Violations of the defendant's right to be present
are subject to harmless error analysis. Under section 971.04 of the Wisconsin
Statutes, the defendant has a statutory right to be present at various proceedings.
Even assuming that the trial court violated this statute, any error was
harmless because the defendant's lawyer was present, the defendant failed
to show what difference his presence would have made, and the trial court
properly responded to the jury's inquiry.
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