Vol. 71, No. 4, April
1998
Court of Appeals Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Administrative Law | Civil Procedure | Commercial
Law |
| Contracts | Criminal Law | Criminal Procedure | Employee Benefits |
| Insurance | Municipal
Law | Torts |
Contracts
Settlements - Failing to Read Contract - Mistake
Nauga Inc. v. Westel Milwaukee
Co. Inc., No. 95-3263 (filed 20 Jan. 1998) (ordered published 25
Feb. 1998)
This dispute involved an agency contract between Nauga and Westel Milwaukee
Company to market cellular telephone services. In the midst of rather protracted
and complicated litigation, Westel submitted a new agency agreement to Nauga
that contained a provision that released Westel from liability in several
pending law suits. Realizing the consequences of the release, Nauga's
lawyer added a paragraph that accepted the terms upon payment of $250,000.
Nauga and Westel executed the agreement, but Westel later claimed that
it had not seen the payment provision when it signed the contract. The circuit
court refused to enforce the "new agreement" because there had
been no "meeting of the minds."
The court of appeals, in a decision authored by Judge Schudson, reversed.
The contract terms were unambiguous. The agreement was reached without fraud
or mutual mistake. Rather, Westel simply "failed to properly and thoroughly
review the contract before executing it." Although enforcement of
the $250,000 settlement "may seem harsh where one party, in fact, did
not intend to assent," the outcome was supported by "sound principles
embodied in contract law." Only one party made the mistake; thus,
no "mutual" mistake occurred.
Judge Wedemeyer dissented, agreeing with the trial judge that recission
was appropriate.
Criminal
Law
Burglary - Intent to Commit a Felony in the Burglarized Premises
- Jury Instructions Regarding Intent of the Actor
State v. Hammer, No.
96-3084-CR (filed 23 Dec. 1997) (ordered published 25 Feb. 1998)
Three women and a man were at a party at a residence in Milwaukee. Three
men broke into this residence, beat the man, and sexually assaulted the
women. Defendant Hammer was charged with several felonies arising out of
this incident, including armed burglary with the intent to commit a felony
in the premises entered. (This charge is distinguishable from the ordinary
form of burglary, which is committed with the intent to steal from the premises
entered.)
When the trial judge instructed the jury about the crime of armed burglary,
she advised the jurors about the specific intent element of the offense
as follows: "The fourth element requires that the defendant enter the
building with the intent to commit a felony. That is, that the defendant
intended to commit a felony at the time he entered the building. A first-degree
sexual assault is a felony, an armed robbery is a felony, a substantial
battery causing substantial bodily harm to another without consent and with
intent to cause bodily harm or substantial bodily harm is a felony. ...
If you are satisfied beyond a reasonable doubt that the defendant intentionally
entered a building, that the entry of the building by the defendant was
without the consent of the person in lawful possession, that the defendant
knew that he did not have such consent and that the defendant entered the
building with the intent to commit a felony, you should find the defendant
guilty."
The trial court declined the defendant's request to instruct the
jury that the verdict had to be unanimous with respect to the exact felony
that he intended to commit when he entered the dwelling. The court of appeals,
in a decision authored by Judge Wedemeyer, affirmed. It concluded that the
defendant was not entitled to a unanimity instruction regarding the felonies
that formed the basis of his intent to enter the dwelling. The jury merely
needed to conclude that the defendant unlawfully entered the dwelling with
intent to commit a felony.
Criminal
Procedure
Revocation of Parole - Successive Certiorari Proceedings
State ex rel. Macemon v. Christie,
No. 97-0660 (filed 28 Jan. 1998) (ordered published 25 Feb. 1998)
In State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157
(1994), the Wisconsin Supreme Court considered the issue of whether a defendant
is prohibited from raising a constitutional claim in a post-conviction motion
under Wis. Stat. section 974.06, if such a claim could have been raised
in a previously filed section 974.02 motion and/or on direct appeal. The
court concluded that a prisoner was compelled by section 974.06 to raise
all grounds for post-conviction relief in an original motion and that "successive
motions and appeals, which all could have been brought at the same time,
run counter to the design and purpose of the legislation."
The question presented in this case was whether the bar of Escalona-Naranjo
against successive appeals should be extended to appeals by writ of certiorari
from parole and probation revocation hearings. As proclaimed by the U.S.
Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), a revoked
parolee is guaranteed one full and fair hearing which "must lead to
a final evaluation of any contested relevant facts and consideration of
whether the facts as determined warrant revocation." Additionally,
a right to appeal to the court of appeals is guaranteed by the State of
Wisconsin Constitution. A thread runs through our entire jurisprudence that
not only is an appeal guaranteed, but it should be meaningful.
However, said the court in an opinion authored by Judge Snyder, there
is no requirement in our system of jurisprudence that a defendant be permitted
to file successive appeals from the same action. Because Escalona-Naranjo
determined that due process for a convicted defendant permits him or her
a single appeal of that conviction and a single opportunity to raise claims
of error, it logically follows that a system that permits a revoked parolee
or probationer the same opportunity to contest a revocation comports with
due process. An aggrieved probationer or parolee should raise all of the
issues of which he or she is aware in the original writ of certiorari proceeding;
those claims then can be reviewed by the circuit court and, if desired,
by the appellate court.
The court of appeals also adopted the exceptions allowed by Escalona-Naranjo
in this case. Thus, if a defendant can offer a sufficient reason for failing
to raise an issue of constitutional dimension or for a claim that such an
issue was argued inadequately at the time of the original certiorari proceeding,
the action may proceed.
Hearsay - Exposing Children to Harmful Materials
State v. Kevin L.C.,
No. 97-1087-CR (filed 4 Dec. 1997) (ordered published 25 Feb. 1998)
The defendant was convicted of first-degree sexual assault and exposing
a child to harmful materials. The court of appeals, in a decision authored
by Judge Deininger, affirmed.
First, the trial court did not violate the defendant's right of
confrontation by admitting a child's out-of-court statements made to
a social worker. The statements were admitted under the so-called residual
exception to the hearsay rule, but the Sixth Amendment right of confrontation
requires that the prosecutor take reasonable steps to actually produce the
hearsay declarant and demonstrate that the hearsay is reliable. The child-declarant,
age six, was ruled "unavailable" after she appeared in court but
was unable to testify about the events. The court of appeals observed that
the defendant was permitted the "opportunity" to cross-examine
the child before the jury. In the alternative, the court also ruled that
the state had "produced" the declarant for confrontation purposes.
The hearsay statements also passed muster under the second prong of the
confrontation analysis. Although the residual exception is not "firmly
rooted" and hence does not carry presumptive reliability, the statements
carried sufficient "indicia of reliability." In making this assessment
the court considered the statements' contents and the circumstances
surrounding the utterances to the social worker.
Second, the court held that section 948.11 of the Wisconsin Statutes
was constitutional. The statute comported with First Amendment protections
by reasonably imposing "upon an individual the obligation to ascertain
the age of persons to whom he or she wishes to exhibit materials deemed
harmful to children." In particular, the court distinguished United
States v. X-Citement Video Inc., 513 U.S. 64 (1994), which struck down
a federal statute for omitting any scienter requirement regarding age. The
federal statute covered actions in which it was unlikely that the defendant
would personally confront a child, thus depriving the defendant of any opportunity
to assess the victim's age.
Employee
Benefits
Wisconsin Retirement System - Disability Benefits - Employer
Certification that Termination Was Because of Disability
State ex rel. Bliss v. Wisconsin
Retirement Board, No. 97-1639 (filed 8 Jan. 1998) (ordered published
25 Feb. 1998)
Wis. Stat. section 40.63(1) provides that a participating employee is
entitled to a disability annuity from the Wisconsin Retirement System if,
prior to attaining his or her normal retirement date, certain conditions
are met, including the following:
"The employee is not entitled to any earnings from the employer
and the employer has certified that it has paid to the employee all earnings
to which the employee is entitled, that the employee is on a leave of absence
and is not expected to resume active service, or that the employee's
participating employment has been terminated, because of a disability as
described in [section 40.63(1)(b)] and as a consequence the employee is
not entitled to any earnings from the employer."
In this case the petitioner was terminated from employment with a municipal
police department for violating department rules. Prior to the discharge,
he applied for disability benefits under the Wisconsin Retirement System.
The Department of Employee Trust Funds and the Wisconsin Retirement Board
(board) denied the application for a disability annuity because the petitioner's
employer did not certify that termination was due to disability. In fact,
the employer certified that termination was for a reason other than disability.
The petitioner commenced this action to obtain certiorari review of the
board's action. The circuit court affirmed the board and the court
of appeals, in a decision authored by Judge Deininger, affirmed the circuit
court.
The court of appeals concluded that the board's interpretation of
the statutory eligibility requirements for a disability benefit under the
Wisconsin Retirement System was entitled to great weight deference. Applying
that standard of review, it concluded that the board's interpretation
of the statute quoted above to condition disability benefit eligibility
on the employer's certification that the petitioner was terminated
(or on indefinite leave) because of a disability, did not directly contravene
the words of the statute. Nor did the petitioner show that the board's
interpretation was contrary to legislative intent or without a rational
basis. Accordingly, the employer's failure to certify that the petitioner's
termination was because of a disability was fatal to his application for
a disability annuity. The court indicated that it would reach the same conclusion
if the petitioner had been on an indefinite leave of absence that the employer
failed to certify as being caused by a disability.
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