Vol. 70, No. 9, September
1997
Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Civil Procedure | Constitutional
Law | Corrections |
| Criminal Procedure | Insurance | Public Benefits |
| Taxation | Torts |
Civil procedure
Excluding Expert Evidence - Surprise - Probative Value
Magyar v. WHCLIP, No. 95-0972 (filed
27 June 1997)
The plaintiff brought a medical malpractice action against various defendants.
On the first day of trial, the plaintiff and one defendant, NSM, asked the
court to approve a settlement that dismissed NSM from the lawsuit. The settlement
was, however, contingent upon the court's ruling that a certain expert named
only by NSM could not be called by any other defendant. The judge approved
the settlement over the objection of the nonsettling defendants. The court
of appeals affirmed.
The supreme court, in an opinion written by Justice Bablitch, reversed.
The trial judge properly concluded that the plaintiff was not unduly surprised
by the expert's testimony, which had "significant" probative value.
Nor was the testimony in any way "unfairly" prejudicial. The supreme
court held that the trial judge abused his discretion by excluding the evidence
based on "the equities to the settling defendant."
Chief Justice Abrahamson concurred, writing separately to suggest that
the court might have to reconsider prior cases that "injudiciously
read unfair surprise into sec. 904.03." Justice Geske joined in the
concurrence.
Justice Geske also filed a concurring opinion that addressed why the
circuit court erroneously considered the "equity" of the dismissal.
Offers to Settle - Interest - Insurer's Limits
Nelson v. McLaughlin, No. 95-3391
(filed 2 July 1997)
The plaintiff sued an insured defendant and his insurer for damages resulting
from a car accident. Prior to trial, the plaintiff offered to settle for
the $100,000 policy limits but the offer was rejected. A jury awarded about
$500,000 in damages. Section 807.01(4) of the Wisconsin Statutes provides
that the plaintiff is entitled to 12 percent interest on the amount recovered
from the date of the offer of settlement to the date of payment. The circuit
court imposed on the insurer the interest rate on the entire verdict rather
than the insurer's policy limits ($500,000 versus $100,000). The court of
appeals reversed.
The supreme court, in an opinion written by Justice Crooks, affirmed
the court of appeals. The insurer was responsible for the 12 percent interest
on only its $100,000 policy limits. This conclusion followed from "(1)
the legislature's choice of the phrase 'amount recovered' instead of 'verdict'
or 'judgment' in sec. 807.01(4); and (2) the fact that if 'amount recovered'
is interpreted to mean the entire verdict, insurers will be forced to settle
cases that would be more appropriately resolved at trial." Insurers
will not deny settlements contrary to the best interests of their insureds
"because the availability of a bad faith claim provides substantial
deterrent against insurers engaging in such practices." Finally, the
court recognized that an insurer can be bound to pay interest on the entire
verdict under the terms of its insurance contract, but the insurer in this
case was not contractually so obligated.
Chief Justice Abrahamson dissented, joined by justices Bablitch and Bradley.
The dissent maintains that "when an insurance company has the sole
right and ability to settle an entire litigation, yet rejects on behalf
of itself and its insured a plaintiff's offer made pursuant to Wis. Stats.
Sec. 807.04(1) to settle for an amount within the policy limits and the
plaintiff subsequently recovers a total judgment greater than or equal to
the amount offered, the insurer is responsible for penalty interest"
on the entire amount recovered against both insured and insurer.
Constitutional law
Qualified Immunity - Clearly Established Rights
Penterman v. WEPCO, No. 96-0164
(filed 2 July 1997)
Plaintiffs claimed that their farm operations suffered because of "stray
voltage" from WEPCO's power lines. They also sued a state employee,
Dasho, who headed the Wisconsin Public Service Commission's Stray Voltage
Analysis Team. The circuit court dismissed the action against Dasho in part
because he was entitled to qualified immunity. The court of appeals affirmed
but did not reach the qualified immunity issue because it concluded that
there was no legally cognizable claim against Dasho.
The supreme court, in an opinion written by Justice Geske, affirmed.
Although the case presented "unique legal claims," the court concluded
that plaintiffs failed to show that Dasho violated a "clearly established
constitutional right." Thus, Dasho was entitled to qualified immunity
and the court declined to consider whether the plaintiffs stated a claim
for which relief could be granted. Justice Geske cautioned that the opinion
made "no new law" and that the court's "qualified immunity
inquiry is fact-specific, limited to the facts alleged in the pleadings."
Readers interested in the particular facts should review the court's opinion.
Corrections
County Jails - Authority of Dept. of Corrections to Place Probation
and Parole Violators in County Jails Over Sheriff's Objection
Wisconsin Dept. of Corrections v. Kliesmet,
No. 96-2292 (filed 25 June 1997)
The key issue in this case is whether the Wisconsin Dept. of Corrections
(DOC) can place its probation and parole violators in a county jail over
the safety objections of the sheriff. At its core the case presented a question
of statutory interpretation involving section 302.31 of the Wisconsin Statutes,
which provides that "the county jail may be used ... for the temporary
detention of persons in the custody of the department [of corrections]."
In a unanimous decision authored by Justice Bradley, the court concluded
that the Legislature intended by section 302.31 to grant the DOC discretion
to keep alleged violators of probation or parole in county jails. However,
considering the statutory and common law authority establishing a sheriff's
duty and authority to act in the interest of jail safety, the court also
discerned a legislative intent to limit DOC's section 302.31 authority to
those instances in which a sheriff determines that taking additional DOC
detainees would result in such overcrowding as to constitute an unacceptable
risk of harm to inmates, deputies and jail staff.
In making this decision, the court indicated its awareness of the administrative
difficulties that DOC faces in administering its probation and parole functions.
However, in the absence of a clear directive to the contrary, the court
refused to conclude that the Legislature intended that the DOC's authority
to keep its detainees in the county jail should trump the sheriff's duty
to maintain safety at the jail.
Because of the need to give the Legislature sufficient time to address
the administrative difficulties that DOC will face if it is unable to use
county jails to house its detainees, the court delayed the effective date
of the decision in this case for one year.
Criminal procedure
Search and Seizure - School Searches
State v. Angelia D.B., No. 95-3104
(filed 20 June 1997)
A high school student, Angelia, was charged with carrying a concealed
weapon - a large knife found hidden in her clothes. The circuit court suppressed
the knife and all evidence derived from the search based on the conclusion
that it violated Angelia's constitutional rights. On certification from
the court of appeals, the supreme court, in an opinion written by Justice
Geske, reversed.
Applying New Jersey v. T.L.O. (1985), the supreme court held that
it was "permissible for school officials who have a reasonable suspicion
that a student may be in possession of a dangerous weapon on school grounds
to request the assistance of a school liaison officer or other law enforcement
officials in conducting a further investigation." Recognizing that
T.L.O. did not address this question, the court further concluded
that "an application of the T.L.O. reasonable grounds standard,
and not probable cause, to a search conducted by a school liaison officer
at the request of and in conjunction with school officials of a student
reasonably suspected of carrying a dangerous weapon on school grounds is
consistent with both the special needs of public schools recognized in T.L.O.
and with decisions by courts in other jurisdictions."
On the record before it, the court found that the search was both reasonable
at its inception and was conducted in a way that was "reasonably related
in scope to the circumstances justifying the interference in the first instance."
Chief Justice Abrahamson, joined by Justice Bradley, concurred. They
agreed that the search was legal because it was supported by probable cause;
thus, the majority did not have to "reach out to adopt a new lower
standard to support the search."
Right to Counsel - Competency
State v. Klessig, No. 95-1938-CR
(filed 24 June 1997)
Klessig was charged with burglary and bail jumping. After several lawyers
withdrew their representation of him, with Klessig's blessing, Klessig notified
the court that he would represent himself at the scheduled trial. The trial
judge did not "engage in an on-the-record colloquy with the defendant
concerning either the knowing or voluntary waiver of his right to counsel,"
nor did the judge inquire into the defendant's competency to represent himself
and proceed pro se. A jury convicted him of burglary. The court of appeals
affirmed.
The supreme court, in an opinion written by Justice Wilcox, reversed
and remanded the case for an evidentiary hearing to determine: a) whether
there was a knowing, voluntary and intelligent waiver of the right to counsel;
b) whether an adequate and meaningful nunc pro tunc hearing can be conducted
on Klessig's competency to represent himself; and, if so, c) whether Klessig
was competent. Overruling a prior case, the court held that circuit courts
must conduct an "on-the-record colloquy to ensure that the defendant:
"1) made a deliberate choice to proceed without counsel, 2) was aware
of the difficulties and disadvantages of self-representation, 3) was aware
of the seriousness of the charge or charges against him, and 4) was aware
of the general range of penalties that could have been imposed on him."
Absent such a record, no valid waiver can be found except through a meaningful
nunc pro tunc hearing. The state must establish the validity of the waiver
by clear and convincing evidence.
The court also held that "[i]n Wisconsin, there is a higher standard
for determining whether a defendant is competent to represent oneself than
for determining whether a defendant is competent to stand trial. This higher
standard ... stems from the independent adoption of the higher standard
by the State as allowed under Godinez v. Moran, 509 U.S. 389 (1993)]."
Chief Justice Abrahamson joined the majority's mandate but wrote separately
to call attention to the possibility that the rule announced by the majority
may be "irreconcilable" with Godinez.
Sentencing - Setting Parole Eligibility Date
Beyond Defendant's Anticipated Life Span
State v. Setagord, No. 95-0207-CR
State v. Downing, No. 96-1264-CR
(filed 1 July 1997)
Section 973.014(1)(b) of the Wisconsin Statutes provides that when a
court sentences a person to life imprisonment, it shall make a parole eligibility
determination regarding the person and may choose the option of providing
that the person is eligible for parole on a date set by the court. If the
judge exercises this option, he or she may set "any later date"
than that provided in section 304.06(1) (the general parole eligibility
statute), but may not set a date that occurs before the earliest possible
parole eligibility date as calculated under section 304.06(1).
For their roles in a hostage-taking (a Class A felony) and attempted
jail break, the defendants received mandatory life sentences. Invoking section
973.014(1)(b), the judge set parole eligibility dates for each of them far
beyond their respective anticipated life spans.
Before the supreme court both defendants argued that the statute does
not authorize the circuit court to effectively deny parole by setting a
parole eligibility date beyond a defendant's anticipated lifetime. A majority
of the supreme court, in a decision authored by Justice Geske, concluded
that the statute unambiguously grants the circuit court discretion to impose
a parole eligibility date beyond a defendant's expected life span. In so
holding the majority rejected the argument that the statute commands that
a realistic opportunity for parole be maintained in the setting of a parole
eligibility date, and further held that the authority to impose a parole
eligibility date beyond a defendant's expected lifetime does not violate
the separation of powers doctrine. Finally, in the context of this case,
it concluded that the circuit court did not erroneously exercise its discretion
in setting parole eligibility dates.
Justice Bablitch filed a dissenting opinion in which Chief Justice Abrahamson
and Justice Bradley joined.
Penalty Enhancer for Committing a Crime
While Possessing a Dangerous Weapon -
Nexus Requirement - Retroactivity of State v. Peete
State v. Howard, No. 95-0770 (filed
26 June 1997)
In State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (l994), the Wisconsin
Supreme Court held that when a defendant is charged with the penalty enhancer
of committing a crime while in possession of a dangerous weapon, section
939.63 of the Wisconsin Statutes requires the state to prove a nexus between
the underlying crime and the possession of the weapon. Because this nexus
is an element of the penalty enhancer, the jury must find the nexus element
beyond a reasonable doubt.
The defendant in this case was charged in 1989 with aiding and abetting
the unlawful delivery of a controlled substance while possessing a dangerous
weapon. At his trial in 1990 the jury received no instruction on the nexus
requirement that was articulated four years later in Peete and it
was not asked to make any specific finding on that element. After his direct
appeals were exhausted and following the decision in Peete, the defendant
requested post conviction relief pursuant to section 974.06 of the Wisconsin
Statutes based upon the supreme court's holding in Peete. The circuit
court denied the motion and the court of appeals reversed. The supreme court,
in a unanimous decision authored by Justice Geske, affirmed the court of
appeals.
The supreme court concluded that the Peete holding applies to
situations of actual as well as constructive possession (the present case
involving actual possession). The court further had to determine whether
the rule announced in Peete applies retroactively to cases on collateral
review like the present one, and held that it does so apply.
The court also had to deal with the state's position that the defendant's
motion for section 974.06 relief was barred by the decision in State
v. Escalona-Naranjo, 185 Wis. 2d 168, 5l7 N.W.2d 157 (1994). In that
case the court interpreted section 974.06(4) to require that if a ground
for relief was not raised in an original, supplemental or amended motion,
the defendant has to show a sufficient reason why he or she did not assert
that ground for relief earlier; otherwise the defendant's claim is barred.
The court held that because the defendant in this case could not have foreseen
the effect of Peete at the time of his original appeal, his motion
for a new trial based on Peete is not barred by Escalona-Naranjo.
Finally, the court considered and rejected the state's position that
the failure to instruct the jury about the nexus requirement for the weapons
enhancer was harmless error. The jurors in this case were precluded from
considering whether the defendant possessed a dangerous weapon to facilitate
the commission of the predicate crime. The absence of the nexus instruction
thus rendered the conviction on the penalty enhancer fundamentally unfair.
Evidentiary Privileges - Defense Discovery
State v. Solberg, No. 95-0299-CR
(filed 1 July 1997)
The defendant appealed his conviction for third-degree sexual assault.
He claimed that the circuit court should have granted him access to the
victim's medical records, which may have revealed impeaching evidence. The
court of appeals reversed the conviction and remanded for a determination
of whether the victim had consented to the circuit court's in camera review
of her medical and psychiatric records.
The supreme court, in an opinion written by Justice Wilcox, reversed
the court of appeals. First, the court held that trial courts "should
conduct an in camera review of privileged medical records when the defendant
makes a 'preliminary showing that the sought-after evidence is material
to his or her defense,' and the privilege holder consents to review."
In this case, the prosecutor conceded that the defense had made the required
preliminary showing. The supreme court examined the sealed record in this
case and found a written release that established the victim's consent to
the review. (The court observed that the "better practice" is
to have the circuit court interview the victim on the record and thereby
make a determination of the victim's voluntary consent. Whatever procedure
is used, the victim should be aware that he or she does not have to consent.)
On the record before it, the court also held that the trial judge did
not abuse his discretion in denying the defendant access following the in
camera review. "If the circuit court determines that the records contain
[material evidence], it should be disclosed to the defendant if the patient
consents to such a disclosure. If the records do not contain relevant information
material to the defense, the circuit court must not disclose the records
to the defendant." Besides reviewing the records in camera, the trial
judge also interviewed a doctor who treated the victim. The judge acted
within his discretion when relying upon the doctor's opinion that despite
occasional "flashbacks" the victim would have known the difference
between fantasy and reality at all times. (The court also suggested that
such ex parte interviews should be recorded.)
Justice Bradley, joined by Chief Justice Abrahamson, concurred. They
thought that the majority's approach invited a "piecemeal resolution"
of "important, complex, and interrelated" issues. The court should
have stopped after finding that the victim had consented to the review.
Justice Bablitch dissented on the ground that plain error occurred when
the trial judge failed to record his conversation with the victim's doctor.
Insurance
"Sick Building" - Pollution Exclusion
Donaldson v. Urban Land Interests Inc.,
No. 95-3015 (filed 24 June 1997)
In this "sick building" case, the plaintiffs alleged that an
inadequate ventilation system caused an excessive accumulation of carbon
dioxide in their work area resulting in various physical maladies. A defendant
insurer was granted summary judgment based on its pollution exclusion. A
divided court of appeals agreed that the pollution exclusion clause vitiated
coverage for any damages.
The supreme court, in an opinion written by Justice Bradley, reversed.
The pollution exclusion clause in this policy was ambiguous; thus, the insured
could reasonably expect coverage for the claims lodged against it. Exhaled
carbon dioxide is "universally present and generally harmless in all
but the most unusual instances." The court was "hesitant to conclude
that a reasonable insured would necessarily view exhaled carbon dioxide
as in the same class as 'smoke, vapor, soot, fumes, acids, alkalis, chemicals
and waste.'"
Justice Steinmetz dissented.
Public Benefits
Medical Assistance - Divestment - Failure to Claim Against Deceased
"Community Spouse's" Estate
Tannler v. Wisconsin Dept. of Health and
Social Services, No. 96-0118 (filed 24 June 1997)
The issue in this case was whether an institutionalized person's failure
to assert a claim against his or her deceased "community spouse's"
estate constitutes a divestment of assets under the Medical Assistance (MA)
program. A "community spouse" is a person who is married to an
institutionalized person but is not himself or herself an institutionalized
person.
Petitioner Tannler lives in a nursing home. She has received MA since
early in 1993. Her husband died in 1994 leaving a will that bequeathed all
of his assets, both real and personal property, to his grandson and his
grandson's wife. He left nothing to the petitioner. The petitioner, represented
by a guardian in the estate of her deceased husband, did not contest the
will, nor did she file any elections or select any property passing under
her husband's will.
The petitioner continued to receive MA benefits until l995 when the Department
of Health and Social Services (DHSS) informed her that it was terminating
her eligibility. DHSS asserted that the petitioner's failure to contest,
select or elect against her husband's will constituted a divestment of assets
which rendered her ineligible for MA.
In a majority decision authored by Justice Steinmetz, the supreme court
held that the failure of an institutionalized spouse to assert a claim against
the estate of his or her deceased spouse constitutes a divestment for purposes
of determining MA eligibility. Under Wisconsin law, a person is entitled
by statute to a portion of his or her spouse's estate. If the institutionalized
person does not make a claim against his or her community spouse's estate,
this failure to contest is a conscious act that constitutes divestment.
Divestment results in MA ineligibility. See Wis. Stat. 49.453.
To conclude otherwise, said the court, would be contrary to the purposes
of the divestment provisions of MA legislation. The practical effect of
the petitioner's inaction is that persons other than the community spouse
or the institutionalized spouse will receive the financial benefits of the
conscious act to reject her share of the estate. The result will be that
the state's taxpayers will bear the burden of supporting the petitioner
while she resides in the nursing home and receives MA. If she had not rejected
her share of her spouse's estate, then those assets would have been available
to provide for her maintenance and health care without burdening the taxpayers.
Chief Justice Abrahamson filed a concurring opinion.
Taxation
Agricultural Land Assessments - Wis. Stat. section 70.32(2r) - Uniformity
Clause
Norquist v. Zeuske, No. 96-1812-OA
(filed 25 June 1997)
Section 70.32(2r) of the Wisconsin Statutes took effect Jan. 1, 1996.
It provides for three phases for transforming agricultural land assessments
for property taxes from a market value system to a use value system. The
first phase, created by section 70.32(2r)(a), freezes assessments of agricultural
land at the Jan. 1, 1995, assessment level. This freeze, which began in
1996, will last for at least two years. Section 70.32(2r)(b) provides for
a mixed assessment system that will last from the end of the initial freeze
until 2009. During this period, agricultural land will be assessed based
partly upon the frozen market value assessments and partly upon the land's
agricultural use value. In each year during this phase, the market value
assessment is reduced by 10 percent and the use value portion of the assessment
is increased by 10 percent. In 2009 the mixed assessment period ends and
agricultural land will be assessed based entirely on its agricultural use
value.
The petitioners brought this original action to challenge the constitutionality
of section 70.32(2r). They contended that the freeze established in section
70.32(2r)(a) violates the Uniformity Clause of the Wisconsin Constitution.
They further argued that section 70.32(2r)(b) also violates the Uniformity
Clause because the market value portion of the mixed assessment is based
upon the frozen amount designated in section 70.32(2r)(a). Respondent Zeuske,
the Secretary of the Wisconsin Dept. of Revenue, disagreed with the petitioners'
contentions and further argued that the petitioners lacked standing to challenge
the statute.
In a unanimous decision authored by Justice Wilcox, the supreme court
concluded that one of the petitioners actually owns agricultural land, that
his status as an agricultural landowner is logically related to his claim
that the statute violates the Uniformity Clause, that he has demonstrated
the injury necessary for standing inasmuch as the value of his agricultural
land could decrease and will inevitably change by a degree different from
other agricultural land, and thus he has standing to challenge the constitutionality
of section 70.32. [The court did not consider the standing of the other
petitioners.
However, the court concluded that the record in this case is not sufficiently
developed and that a decision on the constitutionality of the statute would
thus be premature. The petitioner who has the standing to bring this action
has not offered any evidence that his property is overassessed or that other
agricultural land is underassessed. In determining that this petitioner's
action is premature, the court did not declare the statute either constitutional
or unconstitutional. That determination must await a more developed record.
To prove the statute unconstitutional, an owner of agricultural land
will have to 1) satisfy an initial burden of proving that his or her agricultural
land is overassessed and that other agricultural land is underassessed as
a result of the statute, and 2) demonstrate beyond a reasonable doubt that
section 70.32(2r) does not create uniform taxation of agricultural land
to the extent practicable.
Torts
Discovery Rule - Sexual Assaults - Minors
John BBB Doe v. Archdiocese of Milwaukee,
No. 94-0423 (filed 27 June 1997)
The supreme court heard seven consolidated appeals. All involved plaintiffs
who alleged that as children they were sexually abused by priests. All of
their complaints were dismissed either because they were time barred, or
failed to state a claim for which relief could be granted, or on public
policy grounds. The court of appeals certified the following question: "Does
the discovery rule save an otherwise untimely, noninces-tuous, sexual assault
claim against the individual alleged perpetrator when the alleged victim
was a minor, and the alleged perpetrator was a person in a position of trust
vis-a-vis the child victim?"
The supreme court, in an opinion written by Justice Geske, held that
the claims of each plaintiff were time barred by the statute of limitations
for minors. Each plaintiff discovered, or in the exercise of reasonable
diligence, should have discovered that he or she was injured at the time
of the alleged assaults by the last date of the alleged multiple assaults.
The court's decision is extremely fact-intensive. In the case of five plaintiffs,
the claims alleged intentional acts, immediate injuries, and an "obvious"
causal link. These claims accrued by the time of the last incident of sexual
assault and are governed by the statute of limitations for minors, which
provides for a longer time period for younger victims. The court also declined
to equate these cases with incest allegations, which are covered by a longer
time period. Finally, the court held "that a claim of repressed memory
of past sexual abuse does not delay the accrual of a cause of action for
nonincestuous sexual assault, regardless of the victim's minority and the
position of trust occupied by the alleged perpetrator."
Chief Justice Abrahamson concurred but wrote separately to voice her
continuing displeasure with Pritzlaff v. Archdiocese of Milwaukee
(1994).
This column summarizes all decisions of the 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 |