Wisconsin Lawyer
Vol. 75, No. 10, October
2002
Court of Appeals Digest
This column summarizes selected published opinions of the Wisconsin
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.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Civil Procedure
Competency to Proceed - Captions
Fabyan v. Achtenhagen, 2002 WI
App 214 (filed 24 July 2002) (ordered published 28 Aug. 2002)
Fabyan filed a complaint against a town's board of appeals alleging
that it had violated the state's open meetings law. The trial court
dismissed the complaint. On appeal Fabyan raised various claims of
error, but the court of appeals ordered supplemental briefing on its
competency to hear the appeal.
The court of appeals, in an opinion written by Judge Snyder,
dismissed the appeal because the court lacked competency to proceed.
Wis. Stat. section 19.74 requires that a "private prosecutor" must bring
an action to enforce the open meetings law "in the name, and on behalf,
of the state." Put differently, the caption must bear the title, "State
ex rel. ..." Fabyan failed to comply with the legislature's clear
mandate. Although the court had "jurisdiction" to hear the matter, it
lacked the competency to proceed because of the improper caption.
Competency to Proceed - Defaults - Cross-claims
Tridle v. Horn,
2002 WI App 215 (filed 31 July 2002) (ordered published 28 Aug.
2002)
Sara, a minor, and her parents sued Horn, who injured her in an
automobile accident. They also sued Midwest Security Insurance Co. based
on an automobile policy issued by Midwest to Sara's father, which
carried uninsured (UM) and medical expense coverage. Midwest answered
the complaint but filed no other pleadings. When Horn later failed to
appear for a deposition scheduled by Midwest, it moved for sanctions
against Horn. The court granted Midwest's motion to strike Horn's answer
and, following arbitration on damages, granted a default judgment
against Horn even though Midwest never filed a claim for indemnification
or contribution against Horn. Although Horn later filed a motion to
vacate the default judgment, the trial court ruled that she was "too
late."
The court of appeals, in an opinion authored by Judge Anderson,
affirmed in part and reversed in part. Midwest's failure to file a
cross-claim against Horn deprived the court of competency to proceed on
Midwest's motion for a default judgment in its favor and against Horn
(¶10). Wis. Stat. section 802.07(3), which addresses cross claims,
"clearly contemplates that a pleading must be in place for a
party to move the court to enter a default judgment against a co-party"
(¶10) (emphasis original). The court also held that Horn's motion
to vacate pursuant to Wis. Stat. section 806.07(1)(d) was not untimely.
Finally, the court of appeals upheld the trial court's order awarding
deposition costs to Midwest based on Horn's failure to appear.
Judges - Recusals - Juries
Sharpley v.
Sharpley, 2002 WI App 201 (filed 3 July 2002) (ordered
published 28 Aug. 2002)
Sharpley appealed a judgment that admitted his father's will to
probate and that found no undue influence in the father's decision to
completely disinherit his son in favor of a grandson. The appeal raised
two issues. First, the court of appeals held that under Wisconsin law "a
party is not entitled to a jury trial in a will contest" (¶12).
Second, the court held that the trial judge acted properly when she
refused to recuse herself pursuant to Wis. Stat. section 757.19(2)
(1999-2000). The trial judge's involvement in settlement negotiations
and her limited involvement in a prior guardianship proceeding raised
issues of "subjective" influences under section 757.19(2)(g). Under this
provision, disqualification occurs "only when that judge makes a
determination that, in fact or in appearance, he or she cannot act in an
impartial manner" (¶16). Here the judge properly concluded that she
could be objective in her conduct of the bench trial.
Criminal Law
Lesser Included Offenses - First-degree Recklessly
Endangering Safety Not a Lesser Included Offense of Aggravated
Battery
State v. Dibble,
2002 WI App 219 (filed 16 July 2002) (ordered published 28 Aug.
2002)
The state charged the defendant with two counts of aggravated battery
(Wis. Stat. § 940.19(5)) and two counts of first-degree recklessly
endangering safety (Wis. Stat. § 941.30(1)) for a beating he
committed upon his estranged wife and her friend. Pursuant to a plea
agreement, the defendant pleaded guilty to the two battery charges and
the endangering safety counts were dismissed. On appeal he argued that
his plea was illusory because first-degree recklessly endangering safety
is a lesser included offense of aggravated battery.
In a decision authored by Chief Judge Kane, the court of appeals
concluded that first-degree recklessly endangering safety is not a
lesser included offense of aggravated battery. First-degree recklessly
endangering safety has an element that is not present in aggravated
battery and thus cannot be a lesser included offense of aggravated
battery. That element is the requirement that the state prove that the
endangerment occurred "under circumstances which show utter disregard
for human life."
Criminal Procedure
Sentencing - Resentencing After Fraud on Court
Discovered
State v. Jones,
2002 WI App 208 (filed 3 July 2002) (ordered published 28 Aug. 2002)
The defendant claimed to have been a prisoner of war in Vietnam, a
circumstance that the trial court took into consideration when it
originally sentenced him. Later, the court learned that the defendant
had lied about his military record and resentenced him to a longer term.
The issue on appeal was whether the Double Jeopardy Clause of the Fifth
Amendment prevented resentencing after the fabrication was brought to
the attention of the trial court.
In a decision authored by Judge Brown, the court of appeals concluded
that when a defendant makes a fraudulent representation to the court,
which the court accepts and relies upon in fashioning a sentence, the
court may later declare the sentence void and double jeopardy does not
bar a subsequently increased sentence.
Wisconsin courts have recognized the principle that the application
of the Double Jeopardy Clause to an increase in a sentence turns on the
extent and legitimacy of a defendant's expectation of finality in that
sentence, which may be influenced by many factors, such as completion of
the sentence, the passage of time, the pendency of an appeal, or the
defendant's misconduct in obtaining the sentence.
In this case the question was whether a defendant can have a
legitimate expectation of finality in a sentence that was induced by his
or her purposeful misrepresentations. Said the court of appeals, "common
sense dictates that no reasonable person could hold a legitimate
expectation of finality in a sentence procured by fraud and, indeed, the
case law fully supports this common sense conclusion" (¶ 11). A
criminal defendant who has perpetrated a fraud on the court cannot be
permitted to reap its benefits. "The rule we adopt in Wisconsin,
therefore, is that when a defendant makes a fraudulent representation to
the sentencing court and the court accepts and relies upon that
representation in determining the length of the sentence, the defendant
has no reasonable expectation of finality in the sentence. The court may
later declare the sentence void and double jeopardy will not bar
subsequent resentencing to place the defendant in the position he or she
would have been in if the fraud or corruption had been exposed at the
time of the original sentence" (¶ 14).
Other Acts - Confrontation
State v. Barreau,
2002 WI App 198 (filed 11 July 2002) (ordered published 28 Aug.
2002)
The defendant was convicted of first-degree intentional homicide,
robbery, and burglary. The court of appeals, in an opinion written by
Judge Dykman, affirmed. The first issue, which concerned the propriety
of a lesser included offense instruction for reckless homicide, is
fact-intensive and raised no unique issues of law.
The court held that error occurred when the trial court admitted
other act evidence regarding the defendant's intent to steal from the
victim, specifically, the defendant's burglary of the same residence six
years earlier when he was just 13 years old. Focusing on the relevancy
of the prior burglary, the court found that the incident spoke more to
the defendant's bad character (a use of other act evidence that is
forbidden by Wis. Stat. section 904.04) than to his intent to steal. The
other act lacked the requisite "similarity" demanded by the case law:
"other than that both incidents involved intent to steal from a
residence, the State demonstrates virtually no other similarities
between the two" (¶39). The court declined to "adopt a rule in
which all past conduct involving an element of the present crime is
admissible under Wis. Stat. § 904.04(2)" (¶40). Although error
occurred, the court held that it was harmless beyond a reasonable doubt
based on the record.
The defendant also claimed that his right of confrontation was
violated when the trial court restricted the cross-examination of a
prosecution witness regarding his bias and concessions that he hoped to
receive from or was promised by the prosecution. In essence, the witness
asserted his privilege against self-incrimination as to parts of the
cross-examination, and the trial court curbed the impeachment instead of
barring his testimony altogether. The court held that the defendant had
an adequate opportunity to explore the witness's bias, especially his
friendship with a third person and the possibility that the witness was
deflecting blame to protect his friend. Whether the witness and the
third person were involved in criminal activity would have been "largely
cumulative." Finally, the defendant had adequate "opportunity" to expose
any promises or concessions made to the witness by the state.
Defense Witnesses - Inmate Clothing
State v. Reed, 2002
WI App 209 (filed 2 July 2002) (ordered published 28 Aug. 2002)
A jury convicted the defendant of operating a vehicle without the
owner's consent and of being a felon in possession of a firearm. The
court of appeals, in an opinion written by Judge Wedemeyer,
affirmed.
The primary issue was whether the trial court erred by denying the
defendant's request "to allow two of his alibi witnesses, who were in
custody at the time, to change into street clothes instead of having to
testify in their jail attire" (¶6). Applying an abuse of discretion
standard, the court of appeals found no error. Case law distinguishes
defendants who testify on their own behalf from defense witnesses, who
do not share the same presumption of innocence. Moreover, the prejudice
to testifying defendants is obviously greater, particularly when the
jury is already aware that a witness is incarcerated. In light of these
considerations, the trial court concluded that it was reasonable to
permit the defense witnesses to testify in jail attire, and the court of
appeals upheld the reasonableness of this determination (¶12). In
related matters, the court rejected arguments that defense counsel was
ineffective for failing to request a cautionary instruction on this
point, and that the trial court erred when it offered to give such an
instruction but failed to do so. Any such errors were harmless,
especially since the witnesses had credibility problems in addition to
those caused by their attire.
Family Law
Termination of Parental Rights Proceedings - Multiple
Substitutions of Judge
State ex rel. Julie A.B. v.
Circuit Court, 2002 WI App 220 (filed 17 July 2002) (ordered
published 28 Aug. 2002)
In this termination of parental rights (TPR) case, the mother of the
minor child filed a substitution of judge request and obtained the
assignment of a new judge. Thereafter, the guardian ad litem for the
minor child filed a substitution request and obtained the assignment of
yet another judge. The mother challenged this assignment, claiming that
Wis. Stat. section 48.29(1), which governs judicial substitutions in TPR
proceedings, allows only one substitution of judge. The judge currently
assigned to the case rejected the mother's challenge. In a decision
authored by Judge Nettesheim, the court of appeals agreed with the
decision of the circuit judge.
Section 48.29(1) provides that "not more than one such request [for
substitution] may be filed in any one proceeding." The question before
the court was whether the legislature intended to provide one
substitution request per TPR proceeding or whether it intended to
provide one request per party in a TPR proceeding. The appellate court
was satisfied that the legislature intended to provide each party in a
TPR proceeding with an opportunity to request substitution.
Guardianship Proceedings
Presence of Proposed Ward at the Hearing - Waiver of
Appearance
Knight v. Milwaukee
County, 2002 WI App 194 (filed 2 July 2002) (ordered published
28 Aug. 2002)
Jeffrey and Norris Knight appealed from orders entered by the trial
court appointing a guardian of both the estate and the person of Muriel
K. and directing her protective placement in an unlocked unit of a
nursing home. The Knights, who are not related to Muriel, had previously
been designated by her as her power of attorney agents, Jeffrey for
financial matters and both Jeffrey and Norris for health-care matters.
After a hearing at which Muriel did not appear, the circuit court
stripped the Knights of these designated powers.
In a decision authored by Judge Fine, the court of appeals held that
the trial court lacked competency to enter its orders because it did not
comply with the statutory directive requiring that Muriel be present at
the hearing. Wis. Stat. section 880.08(1) requires that a person who is
alleged to be incompetent appear at the hearing to determine his or her
status. The statute provides that the proposed incompetent person is
presumed able to attend unless, after a personal interview, the guardian
ad litem certifies in writing to the court the specific reasons why the
person is unable to attend.
In this case the guardian ad litem expressed reasons why she wanted
to waive Muriel's presence at the hearing but did not certify those
reasons in writing. Further, the reasons given (that Muriel did not want
to be at the hearing and that it would be upsetting for her and not in
her best interest to appear) did not, in the view of the appellate
court, equal an inability to attend. Accordingly, the trial court lacked
competency to proceed.
The court of appeals remanded this matter with directions that Muriel
be produced at any hearing seeking to declare her to be an incompetent
person if she is able to attend, in accordance with the procedure
specified by section 880.08(1).
Insurance
UIM - Ambiguity - Future Medical Expenses
Stubbe v. Guidant Mut. Ins.
Co., 2002 WI App 203 (filed 25 July 2002) (ordered published 28
Aug. 2002)
Stubbe was badly injured in a car accident. After settling with the
tortfeasor's insurer, Stubbe sought to recover additional monies under
his own automobile and umbrella policies issued by Guidant Mutual
Insurance Co. Stubbe and Guidant arbitrated the amount of damages while
reserving the coverage issues. The arbitrators set total damages at more
than $430,000, well in excess of the $50,000 recovered from the
tortfeasor's insurer. Guidant denied that the umbrella policy provided
any coverage. With respect to the $250,000 underinsured motorist (UIM)
policy limits on the auto policy, Guidant paid $166,000 and asserted
that its obligation was satisfied; it subtracted the $50,000 paid by the
tortfeasor plus about $34,000 in worker's compensation payments. Stubbe
filed suit seeking additional payments under both policies, and Guidant
counterclaimed for about $22,000 in alleged "overpayments" made pursuant
to the arbitrators' award. The circuit court decided all issues in
Guidant's favor.
The court of appeals, in an opinion written by Judge Roggensack,
reversed. Reading the umbrella policy as a whole, the court held it was
"reasonable to read the schedule of underlying limits (which lists
underinsured motorist coverage as 'included') and the policy's
requirement that the insured 'maintain in full effect the insurance
afforded by each policy described in the Declarations' to indicate that
underinsured motorist protection is available as part of the umbrella
policy." In particular, "a reasonable insured would believe that if
underinsured motorist coverage were not available under the umbrella
policy, the insured would not be required to maintain the underinsured
motorist portion of their automobile policy 'in full effect.'"
(¶12) Other aspects of the policy also supported this conclusion.
For example, "the policy also contains an endorsement informing the
insured that the underinsured motorist exclusion 'is deleted in its
entirety.'" (¶14) The court found that Stubbe could reasonably
conclude "that because there are other provisions dealing with
underinsured motorist protection, the exclusion of coverage for
underinsured motorist claims no longer applies, and therefore, there is
coverage for such claims to the extent that the claims exceed the
liability limits of the underlying policy" (¶15).
The trial court also erred when it granted Guidant's counterclaim for
the $22,000 in "future medical expenses." Because the policy language
concerning a claim for future medical expenses that may be covered under
the worker's compensation law also was ambiguous, Stubbe was entitled to
retain the monies in question paid by Guidant.
Motor Vehicle Law
Implied Consent - Blood Draw - Claim of Coercion
Rejected
Village of Little Chute v.
Walitalo, 2002 WI App 211 (filed 2 July 2002) (ordered
published 28 Aug. 2002)
The defendant was arrested for OWI. He contended that his subsequent
consent to submit to a blood test was coerced, because of the threatened
sanction of a loss of driving privileges under the implied consent law
if one refuses to submit to chemical testing. Thus, the defendant said,
his consent was invalid for Fourth Amendment purposes.
In a decision authored by Judge Peterson, the court of appeals
rejected the defendant's arguments. Under the state implied consent
statute, Wisconsin drivers are deemed to have consented to the testing
of their breath, blood, or urine for alcohol concentration and, if there
is a refusal to submit to a request, driving privileges may be revoked.
In this case there was no allegation that the officer made any threats
or applied any coercion to the defendant beyond what the defendant
claimed was the coercive effect of the statute itself. According to the
defendant, the fact that he was forced to choose between the loss of his
driving privileges and submission to a chemical test amounted to
coercion.
Because there was no actual coercion or improper police conduct, the
appellate court concluded that the defendant's consent was voluntary.
The arresting officer, by reading the implied consent form to the
defendant, simply stated the reality that if the defendant refused to
submit to a chemical test, his driving privileges would be revoked. This
statement did not involve any deceit or trickery but instead accurately
informed the defendant of his precise legal situation.
Municipal Law
Annexation - Standing to Contest Annexation
Ordinance
Village of Slinger v. City
of Hartford, 2002 WI App 187 (filed 26 June 2002) (ordered
published 31 July 2002)
The city of Hartford adopted an ordinance annexing 67 acres from the
town of Hartford. The ordinance was the result of a petition for direct
annexation by a limited liability company that proposed high-density
residential and multi-family residential development for the area. No
electors reside in the annexation area, which the ordinance rezoned for
residential use.
The Schaefers own 75 acres of land in the town that abut the entire
length of the northern border of the annexation area, and they sought
declaratory relief that the annexation ordinance was void. The circuit
court dismissed the action after finding that the Schaefers lacked
standing to bring it.
In a decision authored by Judge Snyder, the court of appeals
affirmed. Among the requirements for bringing a declaratory judgment
action is that the party seeking declaratory relief must have a legal
interest in the controversy, that is, a legally protectable interest.
This requirement has typically been expressed in terms of standing and a
taxpayer either must have sustained or will sustain some pecuniary loss
before he or she has such standing. A taxpayer does not have standing to
challenge an ordinance merely because he or she disagrees with the
legislative body.
Nowhere in the complaint in this case did the Schaefers allege that
they have sustained or will sustain some pecuniary loss because of the
annexation or that the annexation poses a substantial injury to their
interests. There is nothing in the record upon which to base an
inference that the Schaefers would be adversely affected by the
annexation. The law requires at least an allegation of pecuniary loss or
injury and the Schaefers alleged neither.
The Schaefers' main concern was with the development, not the
annexation, of their neighbor's property. While adjoining landowners are
affected by a neighbor's land use, land use is in no way dependent upon
annexation. The Schaefers asserted that they have an interest in
protecting their estate from the development of adjoining property that
would diminish the value of that estate, the quality of their life, and
the community in which it is situated. Said the appellate court, the
Schaefers "have not cited any authority that allows a neighbor to oppose
the development of adjoining property simply because it will affect
property values. As the circuit court noted, the Schaefers can advance
this argument in a public zoning hearing but they have no rights in the
adjoining property that are affected by the annexation itself" (¶
17).
Probate
Attorney Fees - Award of Fees to Objectors to Claims Against
an Estate - Wis. Stat. Section 879.37 - Meaning of "Prevailing
Party"
Estate of Wheeler v.
Franco, 2002 WI App 190 (filed 19 June 2002) (ordered published
31 July 2002)
Wis. Stat. section 879.37 provides that "reasonable attorney fees may
be awarded out of the estate to the prevailing party in all appealable
contested matters...." In this case objectors to a claim against an
estate succeeded at trial in whittling down the claim to less than
one-half of its original value. At issue on appeal was the validity of
the circuit court's order awarding attorney fees to the objectors under
section 879.37. The estate contended that the objectors were not
"prevailing parties."
In a decision authored by Judge Brown, the court of appeals concluded
that an objector to a claim against an estate is a prevailing party "if
he or she achieves some significant benefit in litigation involving a
claim against the estate" (¶ 8). The court derived this definition
from cases construing "prevailing party" terminology in other
fee-shifting statutes. On the facts of this case the appellate court
held that the objectors did achieve a significant benefit by maintaining
their objection and thus were prevailing parties under the statute. The
court further concluded that there can be more than one prevailing
party. "The statute may encompass multiple interested parties who
register objections and defend jointly through their respective
counsels" (¶ 9).
Finally, the court rejected an argument advanced by the estate that
the "equitable extraordinary circumstances doctrine" should prevent the
award of attorney fees to the objectors. This doctrine is derived from
cases that held that objectors are entitled to attorney fees only if the
personal representative fails to faithfully contest the claim and the
estate as a whole benefits from the intervention. The court of appeals
concluded that this doctrine has no application to section 879.37. The
cases referred to above predate the enactment of the statute, and the
court held that it would be inappropriate for it to graft the doctrine
into a statute where it does not now exist. "The plain language of the
statute does not limit the award of attorney fees to cases where the
personal representative fails to act or where the award benefits the
estate. The statute simply permits the 'prevailing party' to recover
fees and costs. As we previously stated, a prevailing party is one who
achieves the benefit he or she sought by bringing suit. This is true
regardless of whether the estate is ultimately enhanced or whether the
party assumed the obligation of the personal representative" (¶
12).
Sexually Violent Persons
Appeals - Timeliness - Expert Opinions
State v. Treadway,
2002 WI App 195 (filed 20 July 2002) (ordered published 28 Aug.
2002)
The defendant was committed as a sexually violent person pursuant to
Wis. Stat. chapter 980. The court of appeals, in an opinion written by
Judge Schudson, affirmed the commitment.
The primary issue concerned the court of appeals' jurisdiction over
Treadway's appeal, because Treadway had failed to file post-verdict
motions within 20 days after the jury's verdict. The court held that it
did have jurisdiction. Although it invited the legislature to "clarify
this point," the court declined to require lawyers to "jump through two
hoops in order to preserve appellate rights." The "two hoops" referred
to separate challenges against the verdict and then the commitment.
Under chapter 980 a person ordered committed "preserves the right to
appeal, as a matter of right, by filing post-verdict motions within
twenty days of the commitment order" (¶ 11) (emphasis
added).
Another important and recurring issue concerned opinion testimony by
a probation and parole agent to the effect that Treadway would reoffend.
Although the agent was neither a psychologist nor a "mental health
specialist, he was qualified based on his experience and training to
offer such an opinion"(¶29).
The court of appeals also addressed issues relating to the timeliness
of the state's petition, the number of peremptory strikes allocated to
Treadway, a potential juror's alleged bias, and the sufficiency of the
evidence.
Torts
Economic Loss Doctrine - "Other Property" - Building
Construction
Bay Breeze Condominium
Assoc. Inc. v. Norco Windows Inc., 2002 WI App 205 (filed 31 July
2002) (ordered published 28 Aug. 2002)
A condo association claimed that windows installed in various units
were poorly designed and manufactured, which resulted in water damage
inside and outside the residences. The association contended that the
damages to the areas surrounding the windows fell under the "other
property" exception to the economic loss doctrine and were recoverable
under both negligence and strict products liability. The trial court
dismissed the tort claims as barred by the economic loss doctrine.
The court of appeals, in an opinion authored by Judge Nettesheim,
affirmed. The economic loss doctrine precludes a purchaser of a product
from recovering from a manufacturer "on a tort theory for damages that
are solely economic" (¶9). Rather, the purchaser is expected to
protect itself under contract law and warranty principles. The economic
loss doctrine does not apply, however, "if the damage is to property
other than the defective product itself; in that case, a complainant may
pursue an action in tort" (¶13). Reconciling various strands of
case law, the court held "that the economic loss doctrine applies to
building construction defects when, as here, the defective product is a
component part of an integrated structure or finished product"
(¶26). Here the homeowners purchased "a finished product, their
condominium units," which regrettably failed to meet their expectations.
Nonetheless, the interior and exterior walls and casements were "but
other component parts in a finished product. Because of the integral
relationship between the windows, the casements, and the surrounding
walls, the windows are simply a part of a single system or structure,
having no function apart from the buildings for which they were
manufactured." (¶27) In short, the failed windows did not place
this case outside the economic loss doctrine.
Child Labor Laws - Racing - "Employment" -
"Work"
Olson v. Auto Sport
Inc., 2002 WI App 206 (filed 24 July 2002) (ordered published
28 Aug. 2002)
James Olson, age 15, was killed while racing trucks at the
defendant's raceway. His parents filed this wrongful death action, which
alleged that the defendant had unlawfully employed James in violation of
child labor laws, Wis. Stat. section 103.65 (1999-2000). The circuit
court granted summary judgment to the defendant and dismissed the
complaint.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. Racing is not included in the list of prohibited or regulated
employment in the administrative rule that complements section
103.65(1). Nor, the court said, did it fall within a catch-all section
that covers "hazardous activities." Wis. Admin. Code § DWD
270.06(33). Clearly James and the defendant had entered into a
contractual relationship, but it did not constitute an employer/employee
relationship. The record failed to show any evidence that the defendant
could order James to "go here, go there, do this and do that," the
tell-tale signs of authority and control traditionally exercised by an
employer (¶11). In sum, James was involved "in truck racing for
recreational purposes" (¶14). The court also rejected arguments to
the effect that James' activities constituted "work" under the statute
even if they fell short of "employment:" "James' racing of trucks did
not fall within the ordinarily accepted meaning of 'work' and certainly
not within the specific meaning of 'work' as used in Wis. Stat. §
103.6(1), which is targeted at the improper employment of minors"
(¶17).
Wisconsin
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