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Vol. 74, No. 6, June 2001
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2000 Significant Court Decisions
In his annual feature, the author highlights what he believes are significant
Wisconsin Supreme Court and Court of Appeals decisions for the year 2000.
by Daniel W. Hildebrand
Constitutional Law - Public
School Finance
Probably the most difficult case decided in 2000 was Vincent
v. Voight,1
which challenged the constitutionality of the state school finance system
under Chapter 121 and sections 79.10 and 79.14 of the Wisconsin Statutes.
Petitioners argued that the state school finance system is unconstitutional
under the Wisconsin Constitution 1) article X, § 3 - the uniformity clause
of the education article; and 2) under article I, § 1 - the equal protection
clause.
The court concluded that the purpose of article X, § 3 - the uniformity
clause, is to require that each student be provided with an equal opportunity
for a sound basic education, one that will equip students for their roles
as citizens and enable them to succeed economically and personally. Petitioners
failed to prove beyond a reasonable doubt that the statutes were unconstitutional.
Although petitioners argued that there were inequities in the school finance
system resulting from disparity in the tax base and application of the
state aid formulae, the Wisconsin Legislature's standards must be respected
because the Legislature is uniquely equipped to evaluate and respond to
such questions of public policy. The court relied upon previous cases
indicating that disparity in the revenue-raising capacity of a school
district does not constitute a violation of the uniformity clause.
The court also held that revenue limits were not unconstitutional. Such
limits do not absolutely bar school districts from increasing spending
- they merely require a voter referendum to do so. Further, revenue limits
were intended to provide property tax relief and actually have an equalizing
effect because districts that spend less can increase their spending by
a greater percentage without first seeking a referendum.
The court also held that the school finance system did not violate the
equal protection clause. Acknowledging that Wisconsin children have a
fundamental right to an equal opportunity for a sound basic education,
the equal protection clause does not require absolute equality or precisely
equal advantages on the basis of wealth. Absolute equality in per-pupil
expenditures is not required. The school financing system provides all
school districts with a guaranteed tax base.
Chief Justice Abrahamson, together with Justices Bablitch and Bradley,
dissented in part. They argued that the parties and the lower courts did
not have the opportunity to consider the state school finance system under
the constitutional standard set forth in the majority opinion. They noted
the concern that the state school finance system may be failing to provide
each of the property-poor districts with necessary resources to provide
all students with the opportunity for a sound basic education. Also, they
were concerned that the state school finance system may be providing inadequate
resources to those districts with disproportionately large numbers of
high-need students. The parties should have a chance to present evidence
and argument regarding the constitutional standards set forth in the majority
opinion.
Justices Prosser and Sykes, while agreeing that the state school finance
system is not unconstitutional, could not agree with the majority's definition
of an expansive new state constitutional right to an equal opportunity
for a sound basic education defined as an education that will equip students
for their roles as citizens and enable them to succeed economically and
personally. Any definition of education or standard for educational adequacy
is inherently a political and policy question, not a judicable question.
Constitutional Law - Statutes
of Repose
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Daniel
W. Hildebrand is a member of DeWitt, Ross & Stevens S.C.,
Madison. He is a former president of the Dane County Bar Association
and of the State Bar of Wisconsin. |
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In Aicher v. Wisconsin Patients Compensation
Fund2
the court upheld the constitutionality of sections 893.55(1)(b) and 893.56
of the Wisconsin Statutes. Section 893.55(1)(b) establishes the statute
of limitations for medical malpractice actions of one year from the date
of discovery and also operates as a statute of repose, tolling at five
years from the date of the act or omission. Section 893.56, another statute
of repose, extends the time for minors to initiate medical malpractice
claims to the tenth birthday. The court overruled Estate
of Makos v. Wisconsin Health Care Fund.3
Aicher was born with a defective right eye, known as a "poor red reflex."
Had the condition been treated within six months of her birth, the problem
would have been correctable. However, as a result of failure to treat,
Aicher is now blind in her right eye. Under the statutes, Aicher would
have had to file the malpractice action by her tenth birthday, about nine
months before she claims to have discovered her condition. Relying upon
Makos, the circuit court held the statutes unconstitutional because they
violated the "right to remedy" clause of article I, § 9 of the Wisconsin
Constitution, a provision that guarantees that every person shall be afforded
a remedy for wrongs committed against his or her person, property, or
character.
A party has the burden of proving statutes unconstitutional beyond a
reasonable doubt. Statutes of limitation are based upon policy considerations
best suited to the Legislature. Statutes of repose are different. A statute
of repose limits the time within which an action may be brought based
on the date of the act or omission and bears no relation to the accrual
of a cause of action. Thus, a statute of repose can toll before an injury
is discovered or even before an injury has occurred. Both types of statutes
represent legislative policy decisions that dictate when the courthouse
doors close for particular litigants.
The Legislature has provided that there is a right for medical malpractice
claims only when the plaintiff seeks recovery either within three years
of the injury or within one year of discovery, provided that five years
have not passed since the act or omission. These provisions reflect the
Legislature's view that prompt litigation assures fairness to the parties.
The physician allegedly responsible is now deceased and is no longer able
to defend himself. The court also concluded that the statutes did not
violate the due process or equal protection clauses of the state and federal
constitutions.
Justices Crooks and Bablitch dissented. The result of the decision is
to deny children the opportunity to have their day in court. The statutes
at issue are unconstitutional as applied to the facts of this case because
the time for filing an action expired before the child discovered her
injury. This closes the doors of the courthouse to young children and
denies them the right to a remedy in violation of article I, § 9 of the
Wisconsin Constitution.
The "Sham-affidavit" Rule
In Yahnke v. Carson4
the court adopted the so-called "sham affidavit" rule for application
to summary judgment cases, citing several federal cases.5
The sham affidavit rule requires a trial court to disregard an affidavit
directly contradicting prior deposition testimony. Contradictory affidavits
tend to create sham, rather than genuine, issues. In announcing the rule,
the court held that an affidavit that directly contradicts prior deposition
testimony generally is insufficient to create a genuine issue of fact
for trial, unless the contradiction is explained adequately. To determine
whether the witness's explanation is adequate, the court should examine
whether the deposition afforded the opportunity for direct and cross-examination,
whether the witness had access to pertinent evidence or information prior
to or at the time of the deposition, whether the affidavit was based upon
newly discovered evidence not known or available at the time of the deposition,
and whether the earlier deposition testimony reflects confusion, lack
of recollection, or other legitimate lack of clarity that the affidavit
justifiably attempts to explain.
Justice Bablitch, with Chief Justice Abrahamson and Justice Bradley,
dissented. They argued that the rule is unwise because it puts the court
into the position of weighing the evidence and choosing between competing
reasonable inferences, a task heretofore prohibited on summary judgment.
The rule is not needed because there are other remedies. If affidavits
are made in bad faith, the party submitting those affidavits could be
ordered to pay the other party the costs and attorney fees, which the
filing of the affidavits caused the other party to incur. An attorney
who files an affidavit for an improper purpose faces sanctions. If the
case proceeds to trial, the witness may be impeached with prior inconsistent
statements.
Family Code - Maintenance
Based in Part Upon Contributions Prior to Marriage
In Re Marriage of Meyer v. Meyer6
the court held that it is appropriate to consider a spouse's premarital
contributions to the education of a spouse in determining maintenance.
The case arose from a relationship that spanned 12 years, during which
time respondent received his undergraduate and medical degrees, completed
his residency, and was at the threshold of beginning his career as a physician.
The parties began dating in 1985, began living together in 1986 while
respondent was pursuing his undergraduate education, and married in 1993.
During the time they lived together, petitioner continued to work while
respondent attended school. In 1997, petitioner filed for divorce.
One of the factors that a circuit court can consider when making a maintenance
award is the contribution by one party to the education, training, or
increased earning power of the other.7
There is nothing in the statute that limits the contributions to those
that arose during the marital period. Also, the Legislature directed that
the Family Code be liberally construed.
Justices Sykes, Wilcox, and Crooks dissented. The Family Code does not
apply to claims of parties who are dissolving nonmarital cohabitation
relationships. There is nothing in the maintenance statutes that can be
reasonably read to authorize circuit courts to award maintenance for periods
of premarital cohabitation. The court has expanded the statute beyond
the intent of the Legislature because it has in effect extended the "marital
period" beyond the dates that the marriage was actually in effect. The
absence of language of expansion is more significant than the absence
of language of limitation. Furthermore, the Family Code pertains only
to the institutions of marriage and the family, neither of which is defined
in such a way as to include either nonmarital or premarital cohabitation.
Negligence - Inmate Confined
in a Health Care Center
In Jankee v. Clark County,8
Jankee, a mentally disabled patient who was committed to Clark County's
care facility, was seriously injured during an attempted escape. He sued
Clark County for negligently failing to adequately supervise him while
he was in the county's custody and control. He also pursued negligence
claims against the building contractor, the subcontractor who installed
the windows, and the manufacturer of the windows for failure to design
and manufacture a reasonably safe product. The court of appeals affirmed
summary judgment granted to the contractor defendants holding that the
defense of government contract immunity applied. The court of appeals,
however, reversed summary judgment on the claim against Clark County,
concluding that if Jankee were incapable of controlling or appreciating
his conduct, he could not be held contributorily negligent.
The first issue is whether a mentally disabled plaintiff who is involuntarily
committed to a mental health facility can be held contributorily negligent
for injuries sustained during an escape attempt. The court held that Jankee's
claims were barred because his negligence exceeded the negligence of each
defendant. Jankee's hospitalization resulted from his failure to comply
with a medication program that controlled his mental disability. A reasonable
person would understand that he was required to maintain his prescribed
medication in order to avoid potential ramifications of his mental disability.
Also, Jankee was bound to exercise the duty of ordinary care when he tried
to escape. Wisconsin holds mentally disabled defendants to the reasonable
person standard of care. The rare exception to this standard applies only
when the person has no prior notice or forewarning of the potential for
becoming disabled and the disability renders the person incapable of conforming
to the standard of ordinary care.
Clark County's custody and control of Jankee did not create a duty that
overrode Jankee's duty to exercise ordinary care for his own safety. Clark
County established a special relationship resulting in a duty to aid or
protect Jankee. Clark County voluntarily took the custody of Jankee under
circumstances such as to deprive him of his normal opportunities for protection.
Hospital and prison settings alter expectations of responsibility for
safety and reasonably deprive people of their normal opportunities for
protection. However, Clark County could not have foreseen Jankee's escape
attempt. A hospital is not the insurer of its patients against injury
inflicted by themselves, but is only required to use such means to restrain
and guard its patients as would seem reasonably sufficient to prevent
foreseeable harm. No cause of action arises unless the hospital has notice
of an individual patient's disposition to inflict self-injury. Jankee
had no history of escape attempts, and had expressed no thoughts of elopement
during his confinement.
Chief Justice Abrahamson and Justice Bradley dissented. They agreed
that Clark County assumed the duty to provide reasonable care to shield
the plaintiff - a protected person - from foreseeable harm while he was
at the facility. However, the majority reached its decision by weighing
conflicting evidence and inferences. Given Jankee's extensive history
of mental illness, including violent and irrational tendencies known to
the county, it is possible that Jankee could prove at trial that the county
was negligent in failing to protect Jankee from acting out his irrational
impulses.
Endnotes
1 Vincent v. Voight,
2000 WI 93, 236 Wis. 2d 588, 614 N.W.2d 388.
2 Aicher v. Wis.
Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d
849, http://www.wisbar.org/Wis3/98-2955.htm.
3 Estate
of Makos v. Wis. Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d
662 (1997).
4 Yahnke v. Carson,
2000 WI 74, 236 Wis. 2d 257, 613 N.W.2d 102.
5 See Babrocky v. Jewel Food Co., 773 F.2d
857, 861-62 (7th Cir. 1985); Russell v. Acme Evans Co., 51 F.3d
64, 67 (7th Cir. 1995); Adelman - Tremblay v. Jewel Cos. Inc.,
859 F.2d 517, 521 (7th Cir. 1988).
6 In Re Marriage
of Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382.
7 Wis. Stat. § 767.26(9).
8 Jankee v. Clark
County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297.
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