Vol. 71, No. 11, November 1998
Court of Appeals Digest
By Prof. Daniel
D. Blinka & Prof. Thomas J. Hammer
| Criminal Procedure | Insurance
| Lemon Law | Municipal Law
|
| Open Records Law | Real
Property | Sexual Predator
Law |
| Torts | Unathorized
Law Practice |
Criminal Procedure
Other Act Evidence - Stipulations -
Effective Assistance of Counsel
State v. DeKeyser,
No. 98-0174-CR (filed 18 Aug. 1998) (ordered published 1 Oct.
1998)
The defendant was convicted of sexually assaulting his 15-year-old
granddaughter. No physical evidence corroborated the assault.
The state introduced evidence that four years earlier the defendant
had assaulted another granddaughter, who was 15 years old at
the time. His trial counsel attempted to block the admission
of this other act evidence before and at trial, without success.
At defense counsel's request, the trial judge gave a limiting
instruction.
The court of appeals, in an opinion written by Judge Myse,
reversed on grounds of ineffective assistance of counsel. It
held that trial counsel was prejudicially deficient by failing
to know about, or pursue, a stipulation that would have obviated
the state's alleged need for the evidence. First, the court analyzed
the admissibility of the other act evidence, concluding that
it was properly admissible to show only a motive for the assault,
not identity, absence of mistake, or plan. If counsel had conceded
motive, the other act evidence would have been inadmissible.
In finding prejudice, the court held that there was a high likelihood
that the jury misused the other assaults as forbidden "propensity"
evidence.
Chief Judge Cane filed a dissenting opinion.
Withdrawal of Guilty Plea - Misunderstanding by Defendant
Regarding Deportation Consequences
State v. Rodriguez,
No. 97-3097-CR (filed 20 Aug.1998) (ordered published 1 Oct.
1998)
The defendant entered an Alford plea to a charge of sexual
assault. At the plea hearing, the court followed the requirements
of Wis. Stat. section 971.08(1)(c) by advising the defendant
that if he was not a citizen of the United States, a plea of
guilty or no contest could result in his deportation, his exclusion
from admission to this country, or a denial of naturalization
under federal law. To this advisal the defendant responded, "I
am a citizen." The court found the defendant guilty on his
plea and sentenced him to 10 years in prison.
Thereafter the defendant filed a post-conviction motion seeking
to withdraw his plea claiming that it was not voluntarily and
knowingly entered. In essence he asserted that his plea was based
on his mistaken understanding that he was a United States citizen
when in fact he is not. He asserted that, had he known that he
would be subject to the possibility of deportation, he would
not have entered the plea. The circuit court denied the motion
for plea withdrawal.
In a decision authored by Judge Vergeront, the court of appeals
affirmed. It concluded that deportation is a "collateral
consequence" of the entry of a plea - not a direct consequence
- and that misunderstanding about the collateral consequences
of a conviction does not render a plea constitutionally infirm.
Accordingly, the circuit court did not err in concluding that
the defendant had not established a manifest injustice that would
have warranted granting his motion to withdraw his plea.
Search and Seizure - Unlawful Entry -
Voluntary Consent - Attenuation
State v. Bermudez,
No. 97-0809-CR (filed 5 Aug. 1998) (ordered published 1 Oct.
1998)
The court of appeals, in an opinion written by Judge Snyder,
reversed the defendant's conviction for drug possession based
on an unlawful entry and the consequent illegal seizure of evidence.
The evidence was discovered during the search of a motel room.
The trial court found, and the court of appeals agreed, that
the initial entry by officers was unlawful. A witness testified
that officers walked into the room through a closed door
without knocking. Despite the finding of an illegal entry,
the record also revealed that the occupant "voluntarily
consented" to the search that followed.
The court held, however, that the consent "was obtained
by the exploitation of the prior illegal police activity."
Attenuation analysis considers a host of factors. First, the
consent occurred in "close temporal proximity to a primary
illegality" (that is, there was an insufficient time lapse
between the unlawful entry and the "voluntary consent").
As the court put it, "[t]he passage of a few minutes cannot
be said to remove the taint of the warrantless entry." Second,
the occupant appeared to be "surprised, frightened, or confused"
by the officers' presence (that is, there were no significant
"intervening factors" that vitiated the illegality).
Third, the unlawful entry constituted flagrant misconduct under
the circumstances of this case.
Insurance
Health Coverage - Preexisting Condition - Cancer Symptoms
Ermenc v. American
Family Insurance, No. No. 98-0531 (filed 19 Aug. 1998)
(ordered published 1 Oct. 1998)
Monica died of stomach cancer. Her estate appealed from a
summary judgment action dismissing its claim against Monica's
health insurer for breach of contract and bad faith. Monica was
treated for abdominal pain in May 1996. She bought the short-term
health insurance policy in June 1996. The trial judge agreed
with the insurer that Monica's stomach cancer was not a covered
sickness under the policy and that it constituted a preexisting
condition.
The court of appeals, in an opinion written by Judge Brown,
reversed. The policy defined a covered sickness as "a condition
which is first evident while this policy is in force." Hindsight
established the link between Monica's stomach pain in May and
the cancer that killed her. But in May 1996 the doctors did not
detect or suspect cancer. The cancer was diagnosed only after
the policy was in force. In short, since the symptoms of cancer
(for example, a palpable mass, blood in the stool) were not "evident"
until after the policy was in force, the cancer was a covered
sickness.
Nor was the cancer excluded as a preexisting condition. The
court of appeals looked to cases from other jurisdictions addressing
"when symptoms are recognizable enough to characterize a
condition as preexisting." It concluded that in "[i]n
order to avoid liability, the insurer must prove that the claimant
was treated for the same condition before and after the policy
took effect." In this case, Monica suffered from "general,
nonspecific symptoms that became clear only by use of hindsight."
Homeowner's Policy - Business Pursuits Exclusion - Exceptions
Rufener v. State
Farm Fire & Casualty Co., No. No. 98-0086 (filed
20 Aug. 1998) (ordered published 1 Oct. 1998)
Martin operated a part-time snow-plowing business from his
home. With the assistance of his friend, Rufener, Martin decided
to install a hoist in his garage for use in handling snowplowing
equipment. Rufener was injured when he fell off a ladder
in Martin's garage while installing the hoist. The trial
court granted summary judgment dismissing Martin's homeowner's
insurer, State Farm, under the policy's "business pursuits"
exclusion.
The court of appeals, in an opinion written by Judge Deininger,
reversed. Two principles emerged from the case law discussing
the exclusion. First, it did not matter whether Rufener's injuries
were characterized as arising from the "fall of a ladder"
or the "installation of the hoist." Rufener was injured
while installing the hoist in Martin's garage for Martin's business.
Second, the decisive issue was whether "the activity is
ordinarily part of or related to the insured's business."
The court concluded as a matter of law that the installation
of Martin's hoist was not ordinarily part of, or related to,
Martin's snowplowing business. Thus, Rufener's injuries fell
within an exception to the business pursuits exclusion.
Lemon Law
Offer to Transfer Title - Calculating Refunds
Church v. Chrysler
Corp., No. No. 97-2065 (filed 19 Aug. 1998) (ordered
published 1 Oct. 1998)
On July 20, 1995, the Churches wrote a letter to Chrysler
explaining why they thought their new car was a "lemon"
as defined by section 218.015 of the Wisconsin Statutes, and
offering to transfer title in exchange for a full refund. On
Aug. 4 Chrysler responded, indicating that it would repurchase
the vehicle but at a price less than the Churches had requested.
The Churches stated their disagreement with Chrysler's figure
in a letter on Aug. 11 which also stated that they expected their
refund no later than 30 days from their initial offer on July
20. The Churches argued that they were entitled to $30,400 and
Chrysler set the refund amount at $29,400. After further exchanges,
the Churches filed this action on Aug. 23, 1995, 33 days after
the initial demand. On Sept. 11, Chrysler sent the Churches a
refund for $29,400. The trial judge dismissed the complaint on
the ground that the parties' negotiations suspended the 30-day
time limit. The judge also ruled that Chrysler had properly deducted
the amount of the purchase incentive rebate from the refund total.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed. Consistent with the legislative purpose behind the
Lemon Law, the court rejected Chrysler's argument that "the
Churches' attempts to negotiate a greater refund amount removed
the process from the Lemon Law or suspended or delayed the running
of the thirty-day clock." The statute "clearly requires
that the manufacturer issue a refund within thirty days of the
consumer's offer to transfer title." Thus manufacturers
have two choices in cases of disagreements with purchasers: "(1)
pay the amount demanded by the purchaser within the thirty-day
period; or (2) pay the amount which the manufacturer deems appropriate
within thirty-day period." The first option obviously concludes
the matter. The second option may result in a lawsuit by the
purchaser where the issue is whether the amount of the
refund was correct. If the manufacturer loses, it suffers
the statutory penalties.
Addressing the refund amount in this case, the court held
that Chrysler acted appropriately in deducting the cash rebate
given to the Churches at the time of purchase. The full purchase
price is the amount actually paid by the consumer. Disputed issues
of fact involving the usage allowance and finance charges were
remanded to the circuit court for trial.
Municipal Law
Appeals Involving Grant of Zoning Variance -
Failure to Join Indispenable Party
County of Rusk v.
Rusk County Board of Adjustment, No. No. 98-0298-FT (filed
25 Aug. 1998) (ordered published 1 Oct. 1998)
The Rusk County Board of Adjustment granted a variance allowing
a previously constructed addition to the home of Robert and Elaine
Radiker to remain within the shoreline setback area. In timely
fashion Rusk County commenced a certiorari review of the Board's
decision pursuant to Wis. Stat. section 59.694(10). The Board
of Adjustment was the only defendant named in the action and
at no time answered or appeared to defend the action. The property
owners were neither named as a party nor ever given notice of
the pending action seeking reversal of the variance granted to
them.
The circuit court ordered the parties to brief the issue of
whether the action should be dismissed for the county's failure
to join the property owners as indispensable parties and serve
them within the 30-day time limit for filing a certiorari review
pursuant to the statute cited above. The circuit court ultimately
dismissed the action for failing to name the property owners
as parties concluding that their due process rights and property
interests required that they be joined and served at the commencement
of the action and within the 30-day time limit required by statute.
The court of appeals, in a decision authored by Judge Myse,
reversed. It viewed the case as presenting two issues: 1) whether
the failure to join an indispensable party by itself was fatal
to the county's attempt to obtain certiorari review of the variance;
and 2) whether the failure to join all indispensable parties
within the 30 days of commencing certiorari review requires dismissal
of the writ. [Because the parties did not dispute the issue,
the appellate court assumed without deciding that a property
owner is an indispensable party to an action for certiorari review
of a zoning determination as to his or her property.]
The court of appeals held that the failure to join an indispensable
party was not a jurisdictional defect that by itself warranted
dismissal of the action. Having determined that dismissal was
not warranted, the court next considered whether the failure
to join all indispensable parties within the 30-day period required
dismissal because the statute limits the commencement of an appeal
to within 30 days after the filing of a decision by the board
of adjustment. The court concluded that, because an action was
commenced within the time period prescribed by statute, the 30-day
statute of limitations was tolled. The subsequent joining of
the indispensable party was irrelevant to the provisions of the
statute of limitations since commencement of the action within
the statutory period was sufficient to toll the running of the
period of limitations. The language of the statute requires only
that the petition for review be filed within the 30-day period.
The joining of other parties at some subsequent date, amendment
of the pleadings, and other procedural matters have no affect
on the petitioner's right to obtain review once the petition
has been timely filed.
Open Records Law
Public Works Projects - Access to Payroll Records
of Construction Subcontractor - Wis. Stat. section 19.36(3)
Building and Construction
Trades Council of South Central Wisconsin v. Waunakee Community
School District, No. No. 97-3282 (filed 27 Aug. 1998)
(ordered published 1 Oct. 1998)
The Waunakee School District contracted with J.P.Cullen and
Sons to build an elementary school and administration building.
Cullen subcontracted portions of the work on the project to various
subcontractors. The subcontractors did not have any contractual
relationship with the school district.
The Building and Construction Trades Council of South Central
Wisconsin submitted an open records request to the district requesting
that the district provide access to the payroll records of certain
subcontractors working on the project. The sole issue before
the court of appeals "was whether the open records law,
when considered in light of the prevailing wage law (Wis. Stat.
section 66.293), required the district to obtain the records
from the subcontractors and provide them to the Council."
In a decision authored by Judge Eich, the court of appeals concluded
that it does not.
The portion of the open records law lying at the heart of
this dispute is the section setting forth "limitations"
on the access to, and the withholding of records - specifically,
the "contractors' records" provisions of Wis. Stat.
section 19.36(3), which state that "each authority shall
make available for inspection ... any record produced or collected
under a contract entered into by the authority with a person
other than an authority to the same extent as if the record were
maintained by the authority." The statute plainly addresses
contracts between an "authority" (in this case the
school district) and the party whose records are being sought.
But the council was not seeking records produced or collected
under the district's contract with the contractor. Its request
went to another level entirely. It sought information that private
subcontractors produced for their own independent purposes. As
such they were not covered by the provisions of section 19.36(3).
Among the council's arguments was that the subcontractors'
payroll records were subject to inspection because the general
contractor had a duty to ensure that all workers on the job,
including those employed by subcontractors, were paid the prevailing
wage. The appellate court was not persuaded. The purpose of the
prevailing wage law is to set the prevailing wage rates and hours
of work for employees of private employers working on public
works projects. The wage law contains specific statutory procedures
for monitoring and securing compliance with its requirements.
And it provides both civil remedies and criminal penalties for
violations of its terms. The prevailing wage law is enforced
by the Department of Workforce Development and the department
is given broad enforcement powers to that end. There is opportunity
for public input into the enforcement process because any interested
person may request the department to inspect the records of all
contractors and subcontractors on a public project to ensure
that they are complying with the prevailing wage law.
Next Page
|