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Vol. 73, No. 3, March 2000 |
Court of Appeals Digest
by Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
Note: Each case summarized in the Court of Appeals Digest
includes its new public domain citation.
| Administrative Law | Civil
Procedure | Criminal Procedure |
| Domestic Abuse | Employment
Law | Family Law |
| Insurance | Lemon
Law | Medical Assistance
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| Taxation | Torts
| Trials |
Administrative Law
Department of Natural Resources - Power to Challenge Constitutionality
of Statute
Silver Lake Sanitary
District v. Wisconsin Department of Natural Resources,
2000 WI App 19 (filed 9 Dec. 1999) (ordered published 19 Jan.
2000)
The Department of Natural Resources (DNR) challenged the constitutionality
of Wis. Stat. section
30.2037 which sets the ordinary high water mark of Big Silver
Lake in Waushara County at 867 feet above mean sea level. The
circuit court granted DNR's motion for a declaratory judgment,
holding that the DNR had standing to challenge the constitutionality
of the law and that the law was unconstitutional as a local bill
in a multi-subject bill.
Several months later the Wisconsin Legislature enacted section
30.103, which permits a sanitary district to set the ordinary
high water mark of any lake that is wholly within its district
and prohibits the DNR from setting a different level. The DNR
sought a declaratory judgment that this statute also is unconstitutional.
The circuit court agreed and held that it is an unconstitutional
violation of the public trust doctrine and the forever-free clause
of the Wisconsin Constitution.
On appeal the DNR conceded that generally a state agency cannot
attack a statute's constitutionality. However, it argued that,
in limited circumstances, a state agency can challenge a statute's
constitutionality if an issue of great public concern is presented.
In a majority decision authored by Judge Roggensack, the court
of appeals reversed the circuit court. It concluded that the
great public concern exception relied upon by DNR applies only
to cases where a private litigant and a creature of the state
are involved. There were no private litigants in this lawsuit
and therefore the DNR did not have standing to contest the constitutionality
of the statutes cited above.
Judge Vergeront filed a concurring opinion.
Civil Procedure
Personal Jurisdiction - Long-arm Statute
Housing Horizons
v. The Alexander Co., 2000 WI App 9 (filed 9 Dec. 1999)
(ordered published 19 Jan. 2000)
The Anderson Company brought a third-party complaint against
Verkler Inc., an Indiana corporation. The circuit court dismissed
the action because Verkler lacked sufficient contacts with Wisconsin
to trigger the state's long-arm statute.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. Although long-arm statutes are liberally construed
in favor of jurisdiction, the plaintiff bears the burden of showing
that the conditions were met. Under Wis. Stat. section
801.05(4) Wisconsin jurisdiction extends to out-of-state
defendants in situations where there is "both an 'act or
omission outside the state by the defendant or his agent' and
an 'injury to person or property within the state which is claimed
to arise out of the foreign act or omission.'" The statute
also requires specified "additional contacts."
In this case the plaintiff claimed that Verkler engaged in
"solicitation or service activities" within Wisconsin.
The court held, however, that "Verkler's participation in
the two meetings" in Wisconsin did not constitute the necessary
"service activities." The case law "suggested"
that a defendant's contacts, when they are limited to a "single
isolated transaction," are insufficient as "service
activities." Other authority led the court to conclude "that
the legislature contemplated something beyond isolated and fleeting
contacts with our state when it enacted the 'service activities'
requirement." ¶14.
Criminal Procedure
Search and Seizure - Seizure of Attorney's Files by Trustee
Attorney - Governmental Conduct - Abandonment of Lawyer's Files
State v. Knight,
2000 WI App 16 (filed 15 Dec. 1999) (ordered published 19 Jan.
2000)
Knight is a disbarred attorney who was serving a prison sentence
when the facts described below occurred. During the course of
another criminal proceeding involving him, the local circuit
judge received information that a former employee of Knight had
possession of Knight's client files at her home. This information
also revealed that the employee was intending to dispose of the
files by putting them out on the curb for disposal.
Concerned about the confidentiality of the files, the judge
appointed another lawyer as the trustee attorney for the files
pursuant to SCR
22.271(2)(a). This Supreme Court Rule provides that when
a sole practitioner attorney has abandoned the practice of law
for at least 21 days, any interested person or person licensed
to practice law in Wisconsin may file a petition in the circuit
court alleging such abandonment and that no satisfactory arrangements
have been made to continue the practice. The rule further provides
that upon a finding that the attorney has abandoned the practice,
and if no other satisfactory arrangements have been made to continue
the practice, the circuit court shall appoint a trustee attorney
who may take action to, among other things, protect the clients'
rights, files, and property.
The judge's order appointing the attorney trustee directed
him to take charge of the files. The lawyer went to the former
employee's residence and, with her help, removed files from a
garage attic. He took the files to his office and reviewed them.
An audit of the files revealed that approximately $78,000 was
missing from a trust fund for which Knight was the trustee. Based
upon this information the state charged Knight with felony embezzlement.
Knight brought a motion to suppress claiming that the files were
obtained as a result of an illegal search and seizure. The circuit
court denied the motion and the defendant pled guilty.
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed. It concluded that governmental conduct occurred when
the trustee attorney acted pursuant to a circuit court order
to seize the client files and search them. Therefore, those activities
had to comport with the requirements of the Fourth Amendment.
The appellate court further agreed with the circuit court that
the files had been abandoned by Knight and that therefore no
search occurred within the meaning of the Fourth Amendment. When
a person turns material over to a third party, such as happened
in this case when the attorney turned the files over to his former
employee, the attorney has no Fourth Amendment protection if
the third party reveals or conveys the material to governmental
authorities. In short, said the court, the defendant abandoned
his clients' files just as he had abandoned his clients.
Probation - Validity of Probation Condition
State v. Simonetto,
2000 WI App 17 (filed 15 Dec. 1999) (ordered published 19 Jan.
2000)
The defendant was charged with 15 counts of possession of
child pornography and entered a plea of no contest. The circuit
court imposed and stayed sentence and placed him on probation
for 16 years. One of the conditions of probation was "not
to go where children may congregate." The defendant challenged
this condition in a post-conviction motion, which the circuit
court denied. At the hearing the court rejected the defendant's
argument that the probation condition was overly broad and vague,
stating that if he didn't understand the meaning of the court's
judgment, he could refer to the probation rules promulgated by
the Department of Corrections. Specifically, the court referred
to a standard condition of sex offender supervision, which prohibits
entry into any area frequented by persons under age 18, including,
but not limited to, schools, day care centers, playgrounds, parks,
beaches, pools, shopping malls, theatres, or festivals without
prior approval from the probation agent.
In a decision authored by Judge Brown, the court of appeals
affirmed. It concluded that the condition of probation described
above, when examined in light of the court's clarification thereof
at the post-conviction motion hearing, was not overly broad.
Further, the court concluded that the condition is eminently
reasonable and necessary inasmuch as psychotherapists familiar
with his case testified without contradiction that the defendant
is a pedophile and a nascent child molester. The court thought
that the condition of probation was necessary to protect the
community and may even help the defendant overcome his problem
by removing what for him is a stimulus.
Finally, the court rejected the defendant's constitutional
challenge that the probation condition violated his right of
freedom of association and right to travel. The defendant is
a convicted felon and his conditions of probation may impinge
upon constitutional rights as long as they are not overly broad
and are reasonably related to his rehabilitation. These criteria
were satisfied by the probation condition in this case.
Domestic Abuse
Injunctions - Duration - Constitutionality of Wis. Stat.
Section 813.12(4)
Hayen v. Hayen,
2000 WI App 29 (filed 23 Dec. 1999) (ordered published 19 Jan.
2000)
The appellant contended that the circuit court erred when
it refused her request for a two-year injunction and instead
issued the injunction for only six months. She also argued that
the court erred when it declined to order the sheriff to assist
in placing her in physical possession of her residence. On both
issues the court of appeals, in a decision authored by Judge
Deininger, agreed.
Wis. Stat. section
813.12(4)(c) provides that an injunction issued under the
statute is "effective according to its terms, for the period
of time that the petitioner requests" but not longer than
two years. Accordingly, once a circuit court determines that
it will issue a domestic abuse injunction, the court is required
to issue the injunction for the length of time the petitioner
requests subject to the two-year limitation.
The respondent argued that, if the statute is interpreted
as unequivocally requiring the circuit court to grant a domestic
abuse injunction for the period that a petitioner requests, then
it violates his rights to a jury trial, due process, and equal
protection of the law. On all three counts the court of appeals
disagreed.
Finally, the appellate court agreed with the appellant's claim
that the circuit court erred when it declined to order the sheriff
to assist in placing her in possession of her residence. Section
813.12(6) plainly requires the court, if it elects to grant
an injunction and the petitioner so requests, to direct the sheriff's
assistance in placing the petitioner in physical possession of
his or her residence. However, the appellate court noted that
nothing in this statute or in this decision should be viewed
as interfering with a family court's authority to determine which
party should have temporary possession of the residence during
the pendency of a divorce action, if one is commenced, or how
the parties' property ultimately should be divided upon divorce.
At the time of the hearings on the appellant's petition for
an injunction in this action, no family court had entered any
order regarding occupancy of the parties' residence, nor had
either party commenced a divorce action. The appellant conceded,
and the court of appeals agreed, that if she were restored to
physical possession of the parties' residence with the sheriff's
assistance under section
813.12, and a family court were subsequently to award possession
of the residence to her husband, she would then have to make
arrangements to leave. The injunction, if still in effect, would
then require her husband to avoid his wife's new residence. Similarly,
if a family court had awarded possession of the parties' residence
to the husband prior to the injunction hearings under section
813.12, those premises would no longer constitute the wife's
residence, and she would have no right under the statute to the
sheriff's assistance in obtaining physical possession of it.
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