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Vol. 71, No. 7,
July 1998
'97 Significant Court Decisions
| Torts | Insurance
| Children |
| Guardianship | Corporations | Criminal Law |
| Other Significant Decisions |
Guardianship
Other significant decisions
Space does not permit discussion of these other interesting and informative
decisions.
In re Marriage of Batchelor
v. Batchelor, 213 Wis. 2d 251, 570 N.W.2d 568 (Ct. App. 1997)
(a former client's conduct in litigation may constitute a waiver of an attorney's
conflict for disqualification purposes).
In re Marriage of Krieman v.
Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App. 1997)
(contempt may not be imposed where former husband demonstrated his inability
to comply with stipulated judgment for child support).
Anderson v. City of Milwaukee,
208 Wis. 2d 18, 559 N.W.2d 563 (1997) (city did not waive the $50,000 damage
limitation under Wis. Stat. §893.80(3) by failure to plead it as an
affirmative defense).
Hoepker v. City of Madison Plan Commission,
209 Wis. 2d 633, 563 N.W.2d 145 (1997) (city may not condition extraterritorial
plat approval upon annexation).
Cascade Mountain Inc. v. Capitol
Indemnity Corp., 212 Wis. 2d 265, 569 N.W.2d 45 (Ct. App.
1997) (appeal waived by stipulated entry of conditional judgment).
State v. Setagord, 211 Wis.
2d 397, 565 N.W.2d 506 (1997) (court may set parole date beyond defendant's
life expectancy). |
In Spahn v. Eisenberg7 the issue was whether the guardian of an incompetent
person who has not executed an advance directive and is not in a persistent
vegetative state has the authority to direct withdrawal of life-sustaining
medical treatment from the incompetent person. The ward was a 71-year-old
woman diagnosed with Alzheimer's dementia. She was bedridden. Her doctors
have indicated she responds to stimulation from voice and movement. She
also appears alert at times, with her eyes open, and responds to mildly
noxious stimuli. The doctors do not believe her condition meets that of
a persistent vegetative state. The only testimony regarding her views on
the use of life-sustaining medical treatment is a statement she made in
1966 or 1967 when her mother-in-law was dying of cancer. She then stated
that she would rather die of cancer than lose her mind.
After examining prior case law, the court decided not to allow the guardian
to decide whether to withhold or withdraw life-sustaining medical treatment
from an incompetent adult who is not in a persistent vegetative state. Although
these adults have the same constitutional rights to accept or refuse treatment
as competent adults, they do not have the same ability to exercise those
rights. The court previously has determined that it is not in the best interests
of the ward to withdraw life-sustaining treatment, including a feeding tube,
unless the ward has executed an advance directive or other statement clearly
indicating his or her desires. The reason the court requires a clear statement
is because of the state's interest in preserving human life and the irreversible
nature of a decision to withdraw nutrition from a person. The court determined
that the only indication of the ward's desires was a statement made 30 years
ago under different circumstances. This is not such a clear statement of
intent to enable her guardian to authorize withdrawing her nutrition.
Corporations
In Jadair Inc. v. United
States Fire Ins. Co.8
the court dismissed an appeal of a corporation because a corporate officer
rather than an attorney signed the notice of appeal.
Appeals are governed by the rules of civil procedure, which do not expressly
state who may sign a notice of appeal on behalf of a corporation. However,
the statute imposing a penalty for practicing law without a license describes
the practice of law to include appearing on behalf of some other person
or entity in any action or proceeding before any court.9 The Wisconsin Constitution also provides that
individuals may forego legal representation and represent themselves in
court proceedings.10 Under
the plain language of the rules and statutes, only lawyers can appear on
behalf of, or perform legal services for, corporations in legal proceedings
before Wisconsin courts. The exception for actions filed in small claims
court does not apply to this case. Therefore, a notice of appeal is defective
if it is signed by a nonlawyer on behalf of a corporation.
The primary purpose of the unauthorized practice of law statutes is to
protect the public. Lawyers have professional obligations, as officers of
the court, to satisfy themselves as to the legal grounds supporting an appeal.
When a nonlawyer signs and files a notice of appeal on behalf of the corporation,
the assurances required by lawyers are not present. Lawyers make assurances
that an appeal is well-grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification, or reversal of
existing law. The nonlawyer is not bound by the professional responsibility
rules nor is the nonlawyer speaking on his or her own behalf. The requirement
that only attorneys licensed to practice law may sign and file a notice
of appeal is more than a technical requirement. It is a fundamental requirement
imposed by the Legislature. Abandoning that requirement would diminish the
protection that the Legislature has afforded the public and would mean that
any lay person, on behalf of someone else, could invoke the jurisdiction
of the Court of Appeals.
Criminal Law
In State v. Angelia D.B.11 a high school student was
charged with carrying a concealed weapon after a school liaison police officer
found a nine-inch knife hidden in her clothing. The trial court suppressed
the knife and all derivative evidence obtained from the student because
it concluded that the search violated her state and federal constitutional
rights to be free from unreasonable searches and seizures.
A student informer told the assistant principal that he had observed
a knife in another student's backpack and also indicated that the other
student might have access to a gun. The assistant principal called the police
and school liaison officer on duty at the school. The officer interviewed
the informant who identified Angelia as the other student. Angelia was removed
from her classroom. The officer informed Angelia that they had received
information that she may be carrying a knife or gun. He conducted a brief
pat down search of her jacket and pants and had Angelia search her backpack.
Her locker also was searched as authorized by school policy. No weapons
were discovered. After Angelia denied she possessed any weapons, the officer
made a further search and observed two inches of a brown knife tucked in
her waistband by her right hip. He then arrested her.
The court held
that the search was reasonable under the "reasonable grounds"
standard set forth in New
Jersey v. T.L.O.12
Where a careful balancing of governmental interests and private interests
suggests that the public interest is best served by a Fourth Amendment standard
of reasonableness that stops short of probable cause, the court has not
hesitated to adopt such a standard. The proper educational environment in
the schools permits school officials to exercise a degree of supervision
and control that could not be exercised over free adults. Although school
children do not lose all legitimate expectation of privacy once they enter
the school grounds, a student's expectation of privacy must be balanced
against the interest of school officials in maintaining a safe and orderly
learning environment.
There are inherent differences between the roles of police officers and
school officials that make the reasonable ground standard inapplicable to
searches conducted by police officers acting independently of school officials.
But, a police investigation that includes the search of a public school
student initiated by school officials, who are responsible for the welfare
and education of all the students within the campus, brings the police into
the school-student relationship. In Wisconsin, school attendance is compulsory.
School officials not only educate students who are compelled to attend school,
they also have a responsibility to protect those students and their teachers
from behavior that threatens their safety and the integrity of the learning
process. This task has become increasingly difficult with the growing incidence
of violence and dangerous weapons in schools. A failure to extend the reasonableness
standard to searches by police officers under these circumstances might
serve to encourage teachers and officials, who generally are untrained in
proper pat down procedures or in neutralizing dangerous weapons, to conduct
a search of a student suspected of carrying a dangerous weapon on school
grounds without the assistance of a school liaison officer or other law
enforcement official. The court concluded that the officer's search was
reasonable under the circumstances and that the circuit court erred in suppressing
the knife and derivative evidence from the search.
In State v.
Fritz13 the court
invalidated a conviction concluding that the defendant had received ineffective
assistance of counsel prior to trial when he had the opportunity to make
a plea bargain. After defendant told his lawyer that he had sex with an
underage victim, the lawyer advised that at a trial it would be defendant's
word against the word of the victim and that he could not be found guilty
unless the prosecution persuaded all 12 jurors of his guilt beyond a reasonable
doubt. The defendant testified at his trial, denied having sexual intercourse
with the victim, and ultimately was convicted. At post-conviction proceedings,
the defendant admitted that he had lied and stated that he would have taken
the plea bargain if his attorney had not given him bad advice - that he
had nothing to lose by going to trial because he would get probation in
any event. The trial court concluded that the attorney's conduct was grossly
unethical and constituted deficient performance but declined to find prejudice
from the ineffective assistance of counsel. The trial court reasoned that
the defendant had lied at the trial and will have to bear the consequences.
The Court of Appeals reversed, holding that the defendant was prejudiced
by his lawyer's ineffective and unprofessional conduct. A defendant, unschooled
in the law and the ethical responsibilities that are supposed to infuse
our legal system, is not estopped from seeking redress when he follows a
lawyer's unethical advice. History and popular culture teaches that all
too often the legal system may be manipulated to accomplish a desired result.
In order to show prejudice, the defendant must show that he would have in
fact accepted the plea bargain but for the lawyer's deficient performance.
The court held that the defendant would not be entitled to seek reinstatement
of his original plea bargain but would set aside the conviction in order
to permit the defendant to either negotiate a plea bargain or proceed with
a new trial.
Endnotes
1Estate
of Makos v. Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d
662 (1997).
2Wis. Stat. § 893.55(1)(b).
3Jacque
v. Steenberg Homes Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997).
4McEvoy
v. Group Health Coop., 213 Wis. 2d 507, 570 N.W.2d 397 (1997).
5State
ex rel. Angela M.W. v. Kruzicki, 209 Wis.2d 112, 561 N.W.2d 729
(1997).
6Wis. Stat. §48.02(2).
7Spahn
v. Eisenberg, 210 Wis.2d 558, 563 N.W.2d 485 (1997).
8Jadair
Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 562 N.W.2d
401 (1997).
9Wis. Stat. §§757.30(1)
and (2).
10Wis. Const. art. I,
sec. 21.
11State
v. Angelia D.B., 211 Wis. 2d 140, 564 N.W.2d 682 (1997).
12New
Jersey v. T.L.O., 469 U.S. 325 (1985).
13State
v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997).
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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