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Vol. 74, No. 2, February 2001
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Supreme Court Digest
This column summarizes all decisions of the Wisconsin Supreme Court (except
those involving lawyer or judicial discipline, which are digested elsewhere
in the magazine). Full-text
decisions are available. Profs. Daniel D. Blinka and Thomas J. Hammer
invite comments and questions about the digests. They can be reached at
Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233,
(414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Administrative
Law
Construction of Power Plants - Certificates of Convenience and Necessity
- Expedited Process
Responsible Use of Rural and Agricultural
Land (RURAL) v. Wisconsin Public Service Commission, 2000 WI 129
(filed 19 Dec. 2000)
A certificate of public convenience and necessity is a statutory prerequisite
for the construction and operation of a facility that generates 100 megawatts
or more of electricity. Wis. Stat. section 196.491(3) and related provisions
govern the certificate application process. No one may commence the construction
of such a facility unless the person has applied for and received a certificate
of public convenience and necessity from the Public Service Commission.
1997 Wisconsin Act 204 modified the application process for certificates
of public convenience and necessity, allowing for an expedited process
in the handling of these matters. Among other things, the Act was intended
to bolster Wisconsin's electric generation reliability by streamlining
the new electric generation construction process. Section 96 of Act 204
expedited the certificate application process; however, it did not substantively
change the procedure.
The Public Service Commission granted a certificate of public convenience
and necessity for the construction and operation of a natural gas-fired
electric generation power plant with a capacity of up to 525 megawatts
located in Dane County. The Department of Natural Resources (DNR) certified
that the PSC and the DNR complied with the Wisconsin Environmental Protection
Act with respect to their review of the proposed project. The PSC and
the DNR applied an expedited review process contained in the nonstatutory
provision of section 96 of 1997 Wisconsin Act 204 to the application for
the certificate of public convenience and necessity.
The circuit court concluded that the PSC and the DNR properly applied
this expedited review process. In a majority decision authored by Justice
Crooks, the supreme court agreed that section 96 of Act 204 applied in
this case. It also concluded that substantial evidence and reasoning were
evident in the record to support the findings of the PSC and the DNR.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Criminal
Law
Multiplicity - Dual Charges of Attempted First-Degree Intentional
Homicide as a Party to the Crime and Inchoate Conspiracy to Murder the
Same Victim
State v. Moffett and State
v. Denson, 2000 WI 130 (filed 19 Dec. 2000)
The defendants were charged with attempted first-degree intentional
homicide as parties to the crime and with inchoate conspiracy to commit
first-degree intentional homicide of the same intended victim. Both defendants
moved to dismiss the conspiracy charge, arguing that Wis. Stat. section
939.72(2), which provides, among other things, that no person may be convicted
"for conspiracy and ... as a party to the crime which is the objective of
the conspiracy," barred prosecution for both offenses. The circuit court
agreed and ordered the state to amend its information to drop one of the
charges.
The state appealed, arguing that the dual charges did not violate the
statute. The court of appeals agreed, reasoning as follows. The legislature
has classified both conspiracy (Wis. Stat. section 939.31) and attempt
(Wis. Stat. section 939.32) as inchoate offenses. Wis. Stat. section 939.72
only bars simultaneous convictions for both an inchoate and a completed
crime. In this case the pleadings alleged two inchoate offenses and thus
did not seek the type of multiple convictions that are prohibited by section
939.72.
In a unanimous decision authored by Chief Justice Abrahamson, the supreme
court affirmed the court of appeals. It concluded that nothing in section
939.72 bars the state from charging a defendant with the crime of conspiracy
and with being a party to the crime that is the objective of the conspiracy.
The statute governs only convictions and does not bar the state from bringing
and proceeding with charges set forth in multiple statutes. The issue
of whether the defendants can be convicted of both of these offenses was
not before the court at this juncture of the case.
The court rejected the defendant's argument that the two counts as charged
are multiplicitous. The two offenses are not identical in law and fact,
and there is nothing in the legislative history of section 939.72(2) that
would indicate a legislative intent that multiple charges may not be brought.
This case is about charging multiple offenses, and the court held that
the state may properly charge the defendants with being parties to the
crime of attempted first-degree intentional homicide and with conspiracy
to commit first-degree intentional homicide of the same intended victim.
Criminal
Procedure
Sentences - Clerical Error
State v. Prihoda, 2000 WI 123
(filed 14 Nov. 2000)
In 1976 the defendant was sentenced to long prison terms for multiple
criminal offenses. There was, however, a discrepancy between the judge's
oral pronouncement of sentence and the written judgment of conviction
regarding the fifth count. Specifically, did the 30-year term for count
five run consecutive to the prison term in count one or, instead, to the
prison term in count two? The discrepancy surfaced in 1997 when prison
officials asked the clerk for clarification. The clerk's office, acting
independently of the circuit court and with no notice to the defendant,
"corrected" the written judgment of conviction to conform to the sentencing
transcript. The defendant sought to have the "corrected" judgment vacated,
but the circuit court denied the motion and the court of appeals affirmed.
The supreme court, in a decision written by Chief Justice Abrahamson,
affirmed, although its reasoning differed from that of the lower courts.
First, the court held that the "circuit court, not the office of the clerk
of circuit court, must determine the merits of a request for a change
in the sentence portion of a written judgment of conviction because of
an alleged clerical error." The trial court "may either correct the clerical
error" or it may "direct the clerk's office to make such a correction"
(¶ 5). Second, it is within the trial court's discretion to determine
whether "an offender is entitled to notice and a hearing before the correction
of a clerical error in the sentence portion of a written judgment of conviction
is made" (¶ 6). In this case, all three levels of Wisconsin's judiciary
considered and rejected the merits of his arguments, thus eliminating
any need for remand. Finally, the correction made in this case was not
barred by laches nor Wis. Stat. section 893.40 (1997-80), which proscribes
correction of such clerical errors more than 20 years after the entry
of judgment.
Family Law
Divorce - Maintenance - Consideration of Premarital Contribution to
Spouse's Education
Meyer v. Meyer, 2000 WI 132 (filed
22 Dec. 2000)
Julia Meyer filed for divorce from Joseph Meyer after the parties had
lived together for more than 11 years and were married for the last four
of those years. Joseph is now a physician. He completed his undergraduate
education and most of his medical school training while the parties lived
together but were not married. After their marriage, Joseph finished medical
school and completed his residency. During the time the parties lived
together, a pattern was established that would last into their subsequent
marriage: Julia financially supported the household and Joseph focused
on his education.
In its judgment of divorce, the circuit court awarded Julia spousal
maintenance for eight years. In doing so, the court took into account
Julia's premarital contributions to the education of her spouse while
he was pursuing his undergraduate and medical degrees. The court of appeals
reversed the circuit court, concluding that the trial court erroneously
exercised its discretion by considering Julia and Joseph's nonmarital
relationship when it made its maintenance determination.
In a majority opinion authored by Justice Bradley, the supreme court
reversed the court of appeals. The only issue before the supreme court
was whether the circuit court, in making its maintenance determination,
erroneously exercised its discretion when it considered the premarital
contributions by one spouse to the other spouse's education. It concluded
that the circuit court did not erroneously exercise discretion.
Section 767.26 of the Wisconsin Statutes provides a list of factors
that a circuit court is to consider when making a maintenance award. These
factors are the "touchstone of analysis" in maintenance cases. The factor
set forth in section 767.26(9) directs a circuit court to consider: "the
contribution by one party to the education, training, or increased earning
power of the other." The majority could find nothing in this language
limiting the contributions to those that arose only during the marital
period. This lack of limiting language indicated to the majority that
a court may freely consider the total contributions and not merely those
arising during the marriage. The court stressed that under its decision,
it is not cohabitation which may justify a circuit court's discretionary
decision to award maintenance, but rather, it is the contribution to the
education of the spouse which justifies the award. In this case, the circuit
court concluded that fairness and equity required an award of maintenance
and, because the supreme court could find no error in this exercise of
discretion, it upheld the maintenance determination.
The majority opinion noted that this decision is but another addition
to a line of cases that have been described as "university degree-divorce
decree" cases. When analyzing fairness to the parties in the context of
these kinds of cases, the court has said that "it is unfair ... to deny
the supporting spouse a share in the anticipated enhanced earnings while
the student spouse keeps the degree and all the financial rewards it promises"
(¶ 41).
Chief Justice Abrahamson filed a concurring opinion that was joined
by Justices Bablitch and Prosser.
Justice Prosser filed a concurring opinion that was joined by Chief
Justice Abrahamson and Justice Bablitch.
Justice Sykes filed a dissenting opinion that was joined by Justices
Wilcox and Crooks.
Insurance
UM Coverage - "Unidentified Motor Vehicle"
Smith v. General Casualty, 2000
WI 127 (filed 19 Dec. 2000)
This case involved a three-vehicle collision. Smith was driving his
car when it was struck by a truck which had in turn been hit by an unidentified
vehicle. Smith sued the truck driver and his employer. Smith also claimed
that he was entitled to uninsured motorist (UM) coverage under his own
policy because of the involvement of the unidentified vehicle. The trial
court granted summary judgment to the UM carrier because there was no
physical contact between Smith's car and the unidentified vehicle (it
had struck the truck). The court of appeals affirmed.
The supreme court, in a decision written by Justice Bablitch, reversed.
The issue before the court was whether a chain reaction collision is a
"hit" within the meaning of Wis. Stat. section 632.32(4)(a)2.b., so as
to mandate UM coverage "when an unidentified vehicle strikes a second
vehicle, which in turn is propelled into the insured's vehicle" (¶
8). It held that UM coverage was so mandated. The statute refers to an
unidentified vehicle that is "involved in a hit and run accident," a choice
of words that connotes something broader than a "direct hit" (¶ 12).
The court next analyzed the case law, which it separated into categories
called "miss-and-run" and "extraneous object" cases. Finally, the court
found no public policy that precluded its construction of the statute.
Concerns about fraudulent claims are "appropriately satisfied when an
unidentified driver is involved in the type of collision that occurred
in this case" (¶ 28). In conclusion, summary judgment was not appropriate.
Torts
Arrest - Excessive Force - Expert Affidavit - Issue Preclusion
Robinson v. West Allis, 2000 WI
126 (filed 13 Dec. 2000)
Plaintiff Robinson sued two police officers and their police department
for failing to provide medical attention and for using excessive force
during the arrest. The circuit court denied defendants' summary judgment
motion, but the court of appeals reversed. It held that the officers were
not obligated to obtain medical treatment under the facts of this case,
and it also ruled that the excessive force claim was defective because
plaintiff failed to proffer an expert affidavit in response to one filed
by defendants.
The supreme court, in a decision written by Justice Bradley, reversed
the court of appeals. The lower court erred in its conclusion that plaintiff
was required to proffer expert evidence in order to establish a prima
facie claim for excessive force. "[P]rior case law belies any contention
that the matter is necessarily beyond the jury's comprehension" (¶
31). Thus, there is no "per se rule" that requires such expert testimony
(¶ 33). Moreover, nothing in the record suggested that this case
was somehow so complex or extraordinary as to necessitate an expert (¶
35).
The court also rejected defendants' arguments that issue preclusion
warranted dismissal of the civil claims. In criminal proceedings that
arose out of this fracas, the defendant pleaded guilty to carrying a concealed
weapon (CCW), pleaded no contest to battery to a law enforcement officer,
and agreed to have read in for sentencing two other charges of resisting
arrest and operating after revoked. Since they were never litigated in
the first place, "read-in" offenses cannot serve as a bar under issue
preclusion rules (¶ 43). Nor could the defendants use the no contest
plea. "The essential characteristic of the no contest plea, which is that
it cannot be used collaterally as an admission in future civil litigation,
dictates that the defendants may not use the plea to prevent litigation
in this subsequent civil action" (¶ 46). Finally, the guilty plea
to CCW had no relation to any issues being "relitigated" in the civil
action.
Next, the court held that Robinson's excessive use of force claim was
not barred by Heck v. Humphrey, 512 U.S. 477 (1994), which compels
courts to consider whether a judgment for the plaintiff necessarily implies
the invalidity of his conviction. No element of the battery to a law enforcement
officer would be necessarily "negated" by the excessive use of force claim.
Lastly, the court held that defendants were not entitled to qualified
immunity given the state of the record. The door was left open, however,
for defendants to demonstrate at trial that they were entitled to immunity.
The court then took up the claim for failure to provide medical attention.
It agreed that summary judgment was proper in the absence of any evidence
"that the officers were inattentive to an injury or the signs thereof
that it is anything more than a minor injury"
(¶ 64).
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