Vol. 70, No. 5, May 1997
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.
Appellate Procedure
Finality - Timeliness
Laube v. City of Owen, No.
96-2717 (filed 13 Feb. 1997)(ordered published 25 March 1997)
The Laubes brought an action under Chapter 32 of the Wisconsin Statutes
challenging the city's right to condemn their property. In September 1995
the circuit court agreed with them and also awarded them litigation expenses.
The order provided that the court would decide the amount of the award if
the parties could not agree. The city did not appeal that order. In a separate
July 1996 order, the court set the litigation expense award. The city filed
a timely appeal from the July 1996 order, stating that it was appealing
from the July 1995 order as well.
The Laubes moved to dismiss that part of the city's appeal relating
to the September 1995 order. The court of appeals, per curiam, granted the
motion to dismiss. The September 1995 order was final. Nothing in prior
case law suggested that "the finality of an order on the merits depends
on the kind of analysis that will be necessary to resolve the [attorney]
fee issue."
Attorney Fees
Timeliness - Prevailing Party - Civil Rights Actions
Hartman v. Winnebago County, No.
96-0596 (filed 5 Feb. 1997) (ordered published 25 March 1997)
In 1990 plaintiffs began a class action lawsuit against the county regarding
welfare benefits. In this, the third appeal, the court addressed whether
the plaintiffs were entitled to attorney fees. The circuit court found that
the plaintiffs' motion was not timely and that they were not the "prevailing
parties" in the lawsuit.
The court of appeals, in an opinion written by Judge Anderson, reversed.
First, the motion was filed in a timely manner. The case was brought under
42 U.S.C. section 1988. Motions for attorney fees are deemed timely under
section 1988 except where the affected party is unfairly surprised or prejudiced
by the motion. No such showing was made in this case. The court also held
"that sec. 806.06(4), Stats., does not govern the time limits for application
for attorney's fees." (Emphasis added.) Attorney fees under section
1988 present issues "related to but separate from the underlying action."
Moreover, public policy strongly opposes an approach requiring that
the petition for attorney fees be filed prior to the entry of judgment.
Case law instead supports the opposite approach of encouraging parties to
file such motions only after appeal. Finally, the court summarily rejected
the claim that the timeliness of the motion was governed by Federal Rule
of Civil Procedure 54(d), which has no application to state court cases.
The court also ruled that the plaintiffs were the "prevailing party"
in the underlying litigation. This determination rested upon the court's
close reading of the tangled five-year history of this case and related
litigation.
Criminal Procedure
PSI Report - Conflict of Interest - Sentencing
State v. Suchocki, No. 96-1712-CR
(filed 4 Feb. 1997)(ordered published 25 March 1997)
The defendant pled no contest to one count of possession with intent
to deliver and two counts of simple possession of marijuana. A presentence
investigation report (PSI) was prepared by an agent of the Division of Corrections
who also was married to the Kewaunee County District Attorney, "who
was the prosecutor in this case." When he learned of the relationship,
the defendant moved to strike the PSI and for an order directing another
agent to prepare a PSI. He also alleged that the agent was biased against
him because of his homosexuality. The trial court denied the motion and
sentenced him.
The court of appeals, in an opinion written by Judge Myse, affirmed.
First, the trial judge properly concluded that the agent was not actually
biased against the defendant because of his homosexuality. He never contested
the "objective information" in the PSI and the judge found that
the subjective portions were "reasonable" and "uninfluenced
by his sexual preference." The judge also ruled that the defendant's
sexual preference was irrelevant to the sentencing process. Moreover, the
judge's ultimate sentence tracked more closely to the defendant's own recommendation
than that of the PSI writer.
As to the second issue, the court agreed that the marital relationship
demonstrated bias and that a biased agent should not prepare a PSI. "Requiring
any defendant to demonstrate that the marital relationship actually influenced
the writer's impression and recommendations would present an insurmountable
hurdle to any defendant attempting to challenge a PSI." Bias was implied
as a matter of law. There was, however, no evidence that the sentencing
process was "improperly influenced" by the PSI. In particular,
the judge delayed sentencing to allow the defense to prepare its own PSI
and when sentencing him focused upon the defendant's own conduct
in these offenses.
Evidence - Electronic Surveillance - One-party Consent -
"Plain Hearing" Doctrine
State v. Gil, No. 95-3347-CR
(filed 5 Feb. 1997)(ordered published 25 March 1997)
Police set up electronic monitoring equipment in a hotel room in which
their informant was supposed to sell drugs to a "target." At the
time of the sale, the target and the defendant attacked the informant, who
was shot several times. The defendant was charged with conspiracy to sell
drugs, attempted robbery and attempted homicide. The defense argued that
section 968.29(3)(b) of the Wisconsin Statutes barred use of the electronic
recordings to prove the homicide and robbery (that is, the nondrug) counts.
The trial judge ruled, however, that the prosecution could introduce the
surveillance tapes as proof of all three counts. The defendant later entered
an Alford plea to the attempted homicide charge and challenged the trial
court's evidentiary ruling on appeal.
The court of appeals, in an opinion written by Judge Brown, affirmed.
Under the law then in effect, section 968.29(3)(b) of the Wisconsin Statutes
provided that police could use one-party consent recordings only if the
defendant was "accused of any act constituting a felony under ch. 161
or s. 939.30 or 939.31." Judge Brown carefully reviewed the legislative
and case law history of Wisconsin's electronic surveillance law. It agreed
with the trial judge that a strict application of the statutory language
led to an absurd result that benefitted a defendant because he chose to
attempt to rob and kill a person instead of just buying the drugs from him.
The court also observed that the Legislature has since modified this statutory
language to allow such one-party consent recordings in cases involving "a
felony." See 1995 Wis. Act 30, 1.
The court of appeals also adopted the "plain-hearing" rule,
which is an analogue to the "plain view" doctrine governing search
and seizure. The rule provides that where officers who are conducting authorized
electronic surveillance "inadvertently" obtain unauthorized evidence,
the evidence is nevertheless admissible.
Judge Anderson concurred but wrote separately to argue that section
971.31(10) of the Wisconsin Statutes did not preserve this error for appeal.
Parole - Mandatory Release - Electronic Monitoring
State ex rel. Macemon v. McReynolds,
No. 96-0064 (filed 12 Feb. 1997) (ordered published 25 March 1997)
The issue in this case was whether the Department of Corrections may
require an inmate eligible for mandatory release to wear an electronic monitoring
bracelet as a condition of parole. In a decision authored by Judge Brown,
the court of appeals concluded that the department may place such a restriction
on a prospective mandatory release parolee.
The statute establishing the mandatory release of certain individuals
plainly describes how an inmate set for such parole "is subject to
all conditions and rules of parole." See Wis. Stat. 302.11(6). The
administrative rules that set forth the "rules of parole" authorize
the use of electronic monitoring for mandatory release parolees such as
the defendant. Nothing in the Statutes prevents the department from using
electronic monitoring in these circumstances.
Persons Serving NGI Commitments - Imposition of Prison Sentence on Another
Charge Before Expiration
of NGI Commitment
State v. Szulczewski, No.
96-1323-CR (filed 13 Feb. 1997) (ordered published 25 March 1997)
In 1975 the defendant was found not guilty of murder and attempted murder
by reason of mental disease or defect (NGI). He was committed to the Department
of Health and Social Services. In 1995, while still serving his NGI commitment,
he was found guilty by a jury of violating section 940.20(1) of the Wisconsin
Statutes (a felonious battery offense) for injuring another NGI acquittee
at the Mendota Mental Health Institute. He was sentenced on the latter charge
to five years in prison and ordered immediately transferred to the Department
of Corrections for appropriate placement.
Before the court of appeals the defendant argued that the circuit
court had no authority to order the prison sentence on the battery conviction
to be concurrent with the NGI commitment or to order that the battery
sentence commence immediately.
The state conceded that it was improper for the sentencing court to
order the prison sentence on the battery conviction to be "concurrent
with" the NGI commitment because the prior commitment is not a "sentence."
Since the battery sentence could not be imposed "concurrent with"
the NGI commitment, the focal issue on appeal was whether the sentencing
court could order the criminal sentence to commence immediately, notwithstanding
the fact that the defendant had not yet been discharged from his prior NGI
commitment.
In a decision authored by Judge Deininger, the court of appeals concluded
that the immediate commencement of the prison sentence for the battery conviction
was authorized by section 973.15 of the Wisconsin Statutes. This statute
is clear on its face that "except as otherwise provided in this section,
all sentences commence at noon on the day of the sentence." No exception
is made in section 973.15 for persons subject to commitment under the NGI
statute. The only exceptions in the statute are for stays granted for legal
cause, for probation or for not more than 60 days. Accordingly, the circuit
court did not err when it ordered the defendant's prison sentence for battery
to commence immediately, notwithstanding his status as an NGI acquittee.
Employment Law
WFEA - Mitigation of Damages - Scope of Review
U.S. Paper Converters Inc. v. LIRC,
No. 96-2055 (filed 4 Feb. 1997)(ordered published 25 March 1997)
USPC terminated Bodoh's employment. An administrative law judge (ALJ)
later determined that Bodoh had been wrongfully terminated because she had
been pregnant. She was awarded back wages and benefits, but USPC alleged
that she had failed to mitigate her damages with reasonable diligence. Specifically,
following termination by USPC Bodoh had been hired as a probationary employee
by another company, but was fired when she accumulated more than two absences
during her first five weeks of employment. The ALJ agreed that Bodoh failed
to exercise reasonable diligence but the LIRC reversed the ALJ. LIRC concluded
that USPC failed to meet its burden of proof on the reasonable diligence
issue: Bodoh adequately explained her absences and the excuses were reasonable.
The circuit court affirmed the LIRC.
The court of appeals affirmed in an opinion written by Judge LaRocque.
The first issue concerned the appropriate standard of review. USPC argued
that the court should review the issue as one of first impression (that
is, de novo review) because LIRC had not previously addressed the reasonable
diligence standard in this context. The court held, however, that LIRC's
decision was entitled to "due weight" because of the agency's
experience in interpreting the statute in other factual scenarios. Applying
this standard, the court held that LIRC's conclusion was reasonable. Bodoh's
termination by the second employer after three absences did not constitute
failure to mitigate "as a matter of law" under the Wisconsin Fair
Employment Act (WFEA). LIRC properly looked at Bodoh's excuses for the three
absences and properly concluded they were reasonable. The court declined
"to adopt any per se rules regarding what constitutes reasonable diligence
within the meaning of sec. 111.39(4)(c), Stats."
Insurance
Exclusions - Intentional Acts - Sexual Abuse - Severability
Jessica M.F. v. Liberty Mut. Ins.
Co., No. 95-3547 (filed 18 Feb. 1997)(ordered published 25 March
1997)
A grandfather allegedly sexually assaulted his grandchildren, the plaintiffs,
who sued him and the grandparent's homeowner's insurers. The circuit court
granted summary judgment to the insurers, finding no coverage based upon
policy exclusions.
On appeal the plaintiffs did not contest the intentional-acts exclusion
based upon the grandfather's conduct. Rather, they argued that the grandmother
was negligent in that she should have known about the grandfather's deviant
behavior and acted to protect the grandchildren. Thus, plaintiffs argued
that the grandmother's negligence was not precluded by the intentional-acts
exclusion.
The court of appeals, in an opinion written by Judge Schudson, disagreed
and affirmed the trial judge. The opinion includes a clear, comprehensive
summary of Wisconsin case law regarding the intentional-act and sexual abuse
exclusions. The case law identified two "principles of a policy-holder's
reasonable expectations": "1) that one who purchases homeowner
insurance does not contemplate coverage for sexual misconduct committed
by one's child; and 2) that one who purchases homeowner insurance would
not want to share that type of risk (and the increased premiums that would
result), with other homeowner's policyholders." These principles applied
"with equal force" where one's spouse commits the sexual assault.
The court also ruled that the "severability of interest" clause
did not mandate a different result. A grandmother who knew or should have
known about her spouse's sexually abusive conduct was not the "innocent"
insured identified in other cases finding that the severability clause preserved
coverage.
Judge Schudson filed a separate concurring opinion outlining public
policy considerations that buttressed the court's determination. Judge Wedemeyer
also concurred separately to state that it was unnecessary for the court
to address public policy rationales.
Juvenile Law
Double Jeopardy - Sanctions - Waiver to Adult Court
Craig S.G. v. State, No. 96-0761
(filed 19 Feb. 1997) (ordered published 25 March 1997)
The defendant was adjudicated delinquent for criminal damage to property
and placed on formal supervision for a year. As a condition of supervision,
he was not to have any further law violations. However, police executed
a search warrant for his home and found him and two other individuals in
the process of dividing 100 grams of marijuana. As a result, the state filed
both delinquency and waiver petitions; it also requested the imposition
of sanctions for his violation of the prior dispositional order.
A sanctions hearing was held; the defendant admitted the violation;
and the juvenile court imposed a sanction of 10 days secure detention. The
sanction, however, was stayed and the defendant was allowed an opportunity
to purge two days per week for five weeks. He successfully completed this
purge and did not serve any time in secure detention.
A waiver hearing subsequently was held and the state's petition for
waiver was granted. The defendant appealed the waiver, contending that because
of the earlier imposition of sanctions by the juvenile court for the same
offense, the waiver into adult court subjected him to double jeopardy.
The court of appeals, in a decision authored by Judge Snyder, disagreed.
The court began its analysis by noting that double jeopardy bars additional
punishment and successive prosecutions for the same offenses. There was
no dispute in this case that the defendant's actions that led to the charged
crime of possession with intent to deliver a controlled substance resulted
in both a sanction by the juvenile court and the waiver into adult court.
However, the pivotal and controlling question was whether the sanction imposed
by the juvenile court was punishment and the appellate court concluded that
it was not. The order for secure detention was used "to coerce the
defendant to comply with the condition stated in the court's dispositional
order" in the prior delinquency case. The court used the sanction to
achieve a five-week period of compliance, and presumably to assist the defendant
in beginning a pattern of conforming his behavior to that required by the
dispositional order. The sanction did not operate as a punishment and therefore
waiver into adult court on the controlled substance charge did not subject
him to double jeopardy.
In footnote the court observed that it did not reach the question of
whether the imposition of a straight 10 days of secure detention could be
punitive rather than remedial in its application. The court chose to follow
its reasoning in State v. B.S., 162 Wis. 2d 378, 469 N.W.2d 960 (Ct. App.
1991), that the sanctions statute is not intended to punish and it coupled
that holding with the application of the sanction in this case to reach
the conclusion summarized above.
Open Records Law
Dog Impoundment Records - Wis. Stat. section 174.046(4)
State ex rel. Schultz v. Wellens,
No. 96-0415 (filed 11 Feb. 1997) (ordered published 25 March 1997)
The Wisconsin Society for the Prevention of Cruelty to Animals (WSPCA)
submitted an open records request under section 19.35 of Wisconsin's open
records law to the Wisconsin Humane Society for all dog impoundment records
maintained by the Humane Society over a three-year period. The Humane Society
denied the request on the grounds that it was not an "authority"
required to disclose records under the open records statute. WSPCA thereafter
commenced a mandamus action asserting that the documents are public records
as provided for in section 174.046(4) of the Wisconsin Statutes and are
therefore subject to public access under the open records statute.
The circuit court concluded that "although the petitioners have
a right to seek dog pound records that are designated 'public' under sec.
174.046(4), Stats., they must also do this within the disclosure requirements
of the open records law" [which the trial court determined did not
authorize disclosure of the requested records].
The court of appeals, in a decision authored by Judge Schudson, reversed.
As applicable to this case, section 174.046 provides that "a county
board may designate a humane society or other organization to provide a
pound for strays or unwanted dogs in the county." It was undisputed
that the Wisconsin Humane Society is such a society. The statute goes on
to provide that certain records are to be maintained by the pound and that
these records are public records. WSPCA argued that the open records law
must not be read to preclude disclosure of records that the Legislature
has specifically designated as "public records," even though the
Humane Society is not an "authority" required to disclose under
the open records law.
The court of appeals agreed. It found that there is nothing in the history
of the open records statute that would suggest the Legislature intended
to repeal or reduce the operation of section 174.046 and its provision that
dog pound records are public records.
In footnote the court observed that, although public access to the dog
pound records is required under section 174.046(4), nothing either in that
statute or in the open records law would foreclose use of the open records
law procedures for the production of the requested documents. In fact, the
court noted that when this matter was before the circuit court, WSPCA conceded
that it would "have to follow the procedures in Wisconsin's open records
law." |