Vol. 70, No. 12, December
1997
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Attorneys | Constitutional
Law | Criminal Procedure |
| Family Law | Juvenile Law
| Torts |
| Worker's Compensation |
Juvenile law
CHIPS Proceedings - Interrogation of Juvenile
- Applicability of Miranda v. Arizona
State v. Thomas J.W.,
No. 97-0506 (filed 9 Sept. 1997) (ordered published 28 Oct. 1997)
A petition was filed alleging that Thomas J.W. was a child in need of
protection or services in that he was a child under the age of 12 who had
committed a delinquent act, namely, setting a fire in his elementary school.
Thomas moved to suppress his oral and written statements made to a police
liaison officer on the ground that the statements were obtained in violation
of his constitutional right not to incriminate himself. At an evidentiary
hearing on the matter, the officer who questioned Thomas admitted that the
interrogation was not preceded with Miranda warnings.
The circuit court found that Thomas was in custody, was interrogated
and was not advised of his Miranda rights. However, it went on to
conclude that, as a matter of law, Miranda did not apply in Thomas's
case. It pointed out that Miranda applied in criminal cases and that
Thomas was the subject of a CHIPS petition, which is distinct from a criminal
case in that its purpose is to provide services and protection to the child
as opposed to punishment. Based upon these findings, the circuit court admitted
Thomas's statements in the CHIPS proceeding.
In a decision authored by Judge Cane, the court of appeals affirmed.
It began its analysis by noting that Wisconsin has followed the principle
that, while the Fifth Amendment privilege against self-incrimination is
a constant in civil and criminal proceedings, the procedural safeguards
of Miranda warnings are not necessary in certain civil proceedings.
The applicability of Miranda does not turn solely upon whether a
proceeding is labeled "civil" or "criminal." Rather,
the substance of the proceeding determines its applicability.
Wisconsin has extended the Miranda protections to minors in juvenile
delinquency proceedings and waiver proceedings. This extension was based
upon the premise that procedural safeguards were necessary because the juveniles
were facing exposure to significant imprisonment or confinement in detention
facilities. Thomas urged the court to follow this line of cases in his case
reasoning that there should be no distinction among the procedural safeguards
of children's rights , whether they are the subject of a CHIPS petition
or a juvenile delinquency or waiver proceeding.
The court of appeals was not persuaded. It found that Thomas offered
no compelling reason for extending the procedural safeguards set forth in
Miranda to a CHIPS situation. It agreed with the state that a CHIPS
proceeding significantly differs from a criminal proceeding. The focus of
CHIPS proceedings is on providing treatment and services to the child. Because
this is significantly different from a criminal proceeding, the court concluded
that statements made by Thomas were admissible in his CHIPS case even though
no Miranda warnings had been given to him before he was questioned.
The focus on providing protection and services, and the absence of punitive
measures available to the judge at disposition, make a CHIPS proceeding
substantially different from the type of criminal proceeding contemplated
by the Fifth Amendment. Therefore, Miranda warnings are not required
even though an individual is in custody and is the subject of interrogation,
and suppression of the statements for failure to provide a warning is not
warranted.
SJOP - Predicate Offenses - Minnesota Adjudication
State v. David L.W.,
No. 97-0606 (filed 9 Sept. 1997) (ordered published 28 Oct. 1997)
The court of appeals, in a decision written by Judge Hoover, reversed
a dispositional order that placed David in the Serious Juvenile Offender
Program (SJOP) under section 938.34(4h) of the Wisconsin Statutes. Minnesota
and Wisconsin charged David with various offenses. David admitted to an
amended charge of battery in a Wisconsin case and also admitted to a first-degree
aggravated robbery charge in Minnesota. In the Wisconsin proceeding, David
objected to the admission or use of the Minnesota adjudication under Wisconsin's
SJOP. The trial judge overruled the objection.
The court of appeals agreed with David's argument. Penal statutes, including
the SJOP, must be strictly construed in favor of the defendant. Section
938.34(4h) clearly and unambiguously enumerates a list of predicate offenses
that justify SJOP status, but offenses from other jurisdictions (that is,
Minnesota) are not included. The court declined to adopt a construction
that embraces a "substantially similar foreign offense." Moreover,
the court was troubled by the apparent dissimilarities between Wisconsin's
and Minnesota's robbery statutes.
Sexually violent persons
Probable Cause Hearing - Annual Reviews
State v. Paulick, No.
96-3410 (filed 24 Sept. 1997) (ordered published 28 Oct. 1997)
Paulick was convicted in 1989 for sexually assaulting children and had
his parole revoked in 1992 for having contact with minors. Prior to his
release, the state alleged that he was a sexually violent person under chapter
980 of the Wisconsin Statutes, a jury agreed, and Paulick was committed
to a secure facility. A doctor filed a six-month examination report and
the court held a "probable cause hearing" because Paulick did
not sign the waiver of rights. Although Paulick was not allowed to attend
the proceeding, his lawyer appeared. Based upon the doctor's report, the
judge found that there were no facts warranting a hearing on whether Paulick
was still a sexually violent person.
The court of appeals, in a decision written by Judge Anderson, affirmed.
In a careful statutory analysis of chapter 980, the court held "that
sec. 980.09(2)(a), Stats., does not contemplate an evidentiary probable
cause hearing like that provided in sec. 980.09(2)(b). Rather, the probable
cause hearing is a paper review of the reexamination report(s) with argument
that provides an opportunity for the committing court to weed out frivolous
petitions by committed persons alleging that they are no longer dangerous
and are fit for release. This gatekeeping function promotes the effective
management of limited judicial resources while simultaneously protecting
the rights of the committed person."
Torts
Contributory Negligence - Spectators - Hockey Game Injury
Moulas v. PBC Productions Inc.,
No. 96-1784 (filed 23 Sept. 1997) (ordered published 28 Oct. 1997)
The adult plaintiff was struck in the face with a hockey puck while watching
an Admirals hockey game at Milwaukee's Bradley Center. The rink was enclosed
by a clear plastic shield that was eight feet high in the area where the
plaintiff sat. The plaintiff alleged negligence and a violation of the Safe
Place Statute. The trial judge granted summary judgment to the defendants
and dismissed the claim.
The court of appeals, in a decision written by Judge Wedemeyer, affirmed.
The program booklet warned fans to keep their eye on the puck at all times.
Disclaimer language on the back of each ticket warned ticketholders that
they assumed the risk of injury. Examining the summary judgment record,
the court found no material issue of fact on the issue of whether the defendants
breached the standard of care. Moreover, the "baseball rule" established
as a matter of law that the plaintiff's contributory negligence exceeded
that of the defendants (if any). Knowing the risks, plaintiff voluntarily
attended the game. The program and the ticket's disclaimer underscored the
risks and warned her that she, like all spectators, assumed them.
Judge Fine dissented on the ground that defendants had not met the burden
of demonstrating that the baseball rule applied to them.
Worker's Compensation
Traveling Employees - Recreational Activity - Coverage
CBS Inc. v. LIRC, No.
96-3707 (filed 10 Sept. 1997) (ordered published 28 Oct. 1997)
CBS Inc. hired Kamps to be "runner" during the 1994 Winter
Olympics in Norway. The employment required that he work and travel in Norway
for about three weeks. Kamps injured himself while skiing with fellow employees
of CBS, which had supplied the group with free passes, transportation and
required that the employees remain "on call" during this time.
CBS argued that it was not responsible for Kamps' injury because it occurred
on his off day and while he was engaged in personal recreation. An administrative
law judge agreed with CBS, ruling that Kamps was not entitled to worker's
compensation because he deviated from his employment. See Wis. Stat. 102.03(1)(f).
Kamps appealed and LIRC reversed, reasoning that "Kamps was working
in a location where skiing was a reasonable form of recreation incidental
to living." The circuit court affirmed.
The court of appeals, in a decision written by Judge Brown, also affirmed
and underscored that "traveling employees may participate in reasonable
recreational activities without deviating from their employment" under
the Worker's Compensation Act. The court rejected the contention that traveling
employees are restricted to "eating, sleeping, and sightseeing."
Recreation is a "usual and proper" activity. The "key"
to determining what constitutes "reasonable recreation" is the
"nature of the trip," including location. Downhill skiing in Norway
during the Winter Olympics was a reasonable form of recreation.
This column summarizes all decisions of the 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.
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