Vol. 75, No. 2, February
2002
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). 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
Appellate
Procedure
Circuit Court Refusal to Grant Preclusive Effect to Federal
Court Judgment - Interlocutory Appeal
State ex rel. Hass v.
Wisconsin Court of Appeals, 2001 WI 128 (filed 4 Dec. 2001)
The issue before the supreme court in this case was whether it should
exercise its constitutional superintending and administrative authority
to direct the court of appeals to accept all petitions for interlocutory
appeal when the circuit court has denied a claim that the state court
action before it is barred by a final federal court judgment on issue
and claim preclusion grounds. At present, the court of appeals is
afforded discretion in granting such petitions and is limited by the
criteria for granting interlocutory review, which are enumerated in Wis.
Stat. section 808.03(2).
The petitioner argued that mandatory review of petitions like the one
in this case is necessary to ensure respect for final federal court
judgments, to avoid unnecessary litigation, and to discourage successful
federal court litigants from seeking an immediate post-judgment
injunction in federal court enjoining the state court from hearing
adjudicated issues or claims.
In a majority decision authored by Justice Bablitch, the supreme
court concluded that mandatory review by the court of appeals of such
interlocutory appeals is not required. Said the court, "We are confident
that the court of appeals considers, and will continue to consider,
these policy concerns [as expressed by the petitioner] in deciding
whether to grant such interlocutory appeals" (¶2). Based in part on
concerns of comity between the state and federal courts, the majority
urged the court of appeals to carefully review such petitions in the
future.
Justice Sykes filed a dissenting opinion that was joined by Chief
Justice Abrahamson. The dissenters would direct the court of appeals to
grant interlocutory review of all nonfinal circuit court orders
declining to give preclusive effect to federal court judgments.
"Federalism and the orderly functioning of our dual court system would
best be served by this gesture of procedural respect in the state courts
for federal court judgments" (¶28).
Criminal Procedure
Search and Seizure - Warrants - Oath Requirement
State v. Tye, 2001
WI 124 (filed 27 Nov. 2001)
Pursuant to a search warrant, police conducted a search that
uncovered evidence of drug trafficking. The circuit court suppressed the
evidence because the search warrant was not based upon properly sworn
evidence. On certification, the supreme court, in an opinion written by
Chief Justice Abrahamson, affirmed the lower court's suppression
order.
The court held that "the total absence of any statement under oath to
support a search warrant violates the explicit oath or affirmation
requirement of both the federal and state constitutions" (¶3). The
record revealed that a police investigator submitted an "affidavit" (in
form) when applying for the search warrant. At no time, however, did the
investigator sign and swear to the truth of the affidavit or give sworn
testimony attesting to the accuracy of the statements therein. The
investigator, the prosecutor, and the judge issuing the warrant all
failed to detect the omission. When the error was discovered, the state
prepared an affidavit attesting to the facts set forth in the original,
unsigned affidavit.
First, the court rejected the state's contention that an oath is a
"matter of formality." To the contrary, the oath is a "matter of
substance," the purpose of which "is to impress upon the swearing
individual an appropriate sense of obligation to tell the truth"
(¶19). Second, the subsequent affidavit was insufficient. To permit
such a cure for so obvious an error would "disregard the historical
importance of the oath or affirmation as the basis upon which a neutral
magistrate issues a warrant" and would otherwise "eviscerate" the
constitutional mandate (¶21). Third, case law addressing "technical
irregularities" in search warrants (for example, a mistaken address) did
not apply here. Fourth, the court declined to extend the "good-faith
exception" to unsworn search warrant applications.
Justice Crooks concurred in an opinion joined by Justices Bablitch
and Wilcox, which disagreed with the majority's "summary dismissal" of
the good-faith exception rationale.
Telephonic Search Warrants - Failure to Record Telephonic
Testimony in Support of Warrant - Remedy
State v. Raflik,
2001 WI 129 (filed 4 Dec. 2001)
A police officer and an assistant district attorney met at a local
police station for purposes of applying for a telephonic search warrant.
Both thought the phone line they were using was a recorded line. After
the telephone application was made, the judge found that there was
probable cause to issue the warrant. The warrant was promptly executed
and drugs, drug paraphernalia, and cash were seized from the defendant's
house and garage.
The next morning it was discovered that a mistake had been made and
that the telephonic search warrant had been applied for using a
nonrecorded phone line. There was no evidence of improper behavior with
regard to this mistake.
The prosecutor promptly notified the judge of the problem and the
judge convened an ex parte hearing that same day with the prosecutor and
the police officer present. Prior to the hearing, the officer prepared
an affidavit that recounted the warrant application of the night before.
At the hearing the officer testified to the contents of his warrant
application from the previous evening, which included his recount of the
location and description of the home in question, the fact that the
defendant lived there, and the details of the investigation that led to
his requesting a warrant. During the hearing he was questioned by the
judge regarding several additional matters. Following this testimony,
the judge found, from the facts presented and inferences drawn from
those facts, that there was probable cause to support the search warrant
and that a record of the warrant application had been adequately
recreated.
The defendant was charged with numerous drug violations and brought a
motion to suppress the evidence obtained pursuant to the search warrant
on the grounds that the state had failed to make a contemporaneous
record of the warrant application in violation of Wis. Stat. section
968.12(3), the Fourth Amendment, and the latter's counterpart in the
Wisconsin Constitution. The judge presiding over the criminal case, who
was not the judge involved in the original search warrant application,
denied the motion and concluded that the evidence seized pursuant to the
search warrant should not be suppressed.
In a majority decision authored by Justice Wilcox, the supreme court
affirmed. This appeal required the court to decide whether suppression
is the proper remedy when a telephone application for a search warrant
is not recorded in accordance with the statute cited above and when the
factual basis for the warrant is reconstructed in an ex parte hearing
after the warrant has been executed. The court concluded that in this
case suppression was not required and that the warrant application was
appropriately and adequately reconstructed.
Responding to the defendant's constitutional arguments, the court
first held that the Fourth Amendment was not directly violated in this
case. All requirements of the Fourth Amendment were satisfied by the
warrant application. The parties agreed that probable cause existed to
issue the warrant, that a neutral and detached magistrate issued it, and
that the warrant described with specificity the places to be searched
and the things to be seized. Nothing in the Fourth Amendment requires a
contemporaneous recording of the application. [The latter is a statutory
requirement and the statute provides no remedy for noncompliance.]
Although the defendant's Fourth Amendment rights were not directly
violated by the accidental failure to record the warrant application,
that failure could affect the defendant's right to meaningful judicial
review of the warrant process and her right to a meaningful appeal. To
determine whether these rights were adequately protected by the
reconstruction of the search warrant application, the court turned to
those cases that have laid out a procedure for reconstructing missing
portions of trial records.
In State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App.
1985), the court of appeals determined that, when a portion of the trial
record is missing, the trial court must first make a facial inquiry as
to whether the missing portion of the record can be reconstructed,
weighing such variables as the length of the missing transcript, the
availability of witnesses, and the amount of time elapsed between the
trial and the reconstruction. If the trial court finds that
reconstruction is possible, the parties should first attempt to prepare
an agreed statement of the record on appeal. If any disputes remain,
those disputes will be settled by the trial court. If the reconstruction
reaches this stage, the trial court may rely on its own recollection and
notes or materials from the parties as an aid to reconstruction. The
trial court is allowed to conduct hearings or consult with counsel.
Expanding on DeLeon, the supreme court subsequently held
that when assessing the adequacy of a reconstruction, a court should
consider the nature of the case, the nature of the claim of error, the
passage of time from the date a transcript originally was, or should
have been, prepared, and whether the trial was to the court or to a
jury. See State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748
(1987).
In this case, the supreme court held that the reconstruction
procedures articulated in Perry and DeLeon may be used in a situation
where a telephonic warrant application has mistakenly not been recorded.
Where there is no evidence of intentional or reckless misconduct on the
part of law enforcement officers, a reconstructed warrant application
may serve as a functional equivalent of the record of the original
application. Such a reconstruction, when made appropriately, can protect
the defendant's right to a meaningful appeal, as well as the defendant's
ability to challenge the admission of evidence in a suppression
hearing.
In this case, the court found enough evidence in the record to
demonstrate that the defendant's due process right and her right to a
meaningful appeal have been protected. The length of the reconstructed
section was relatively short, only one witness was required to testify,
and the facts that provided probable cause were uncomplicated and easily
remembered by the officer witness. Perhaps most importantly, the
application was reconstructed only 18 hours after the actual
application, when the events of the previous day were still fresh in the
minds of all the participants. Finally, all of the participants in the
original warrant application were available to the trial court when it
reconstructed the record.
The court rejected the defendant's request to make the reconstruction
of a warrant application an adversarial hearing. In a situation like
Perry, where a portion of the trial record is reconstructed, the
participation of both parties is appropriate, and even required out of
fairness, because the proceedings being reconstructed were originally
adversarial. As long as reconstruction of a search warrant application
is done before the suspect is charged, there is no constitutional
requirement that the hearing be adversarial, and the supreme court
declined to impose such a requirement. Although it was not necessary to
reach the question here, the court did note that if the reconstruction
of a warrant application were to take place after the suspect is
charged, the defendant may have the right to have counsel present at the
reconstruction hearing.
Finally, the court addressed the burden of proof for reconstruction.
It concluded that the trial court must find that a reconstruction is
accurate to the same level of proof that is used in the proceeding that
is being reconstructed. Because a motion for suppression of evidence
would be judged by a preponderance of the evidence standard, the court
held that the reconstruction of a warrant application should be judged
by that standard as well.
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson.
Selective Prosecution - Proof Burdens
State v. Kramer,
2001 WI 132 (filed 18 Dec. 2001)
After the Wisconsin Court of Appeals clarified that certain video
poker machines are "gambling machines" within the meaning of Wisconsin's
gambling laws, the Fond du Lac County district attorney and sheriff sent
a letter to tavern owners in the county warning them that henceforth
complaints that payouts of any kind are being made in connection with
the use of video poker machines would be investigated and prosecuted.
This letter, however, was not sent to any tavern owners whose
establishments were located in the Village of North Fond du Lac.
The defendant owned a tavern in the Village of North Fond du Lac and,
subsequent to the change in prosecution policy as described above, was
charged with two counts of commercial gambling in connection with video
machines for which payouts had been made both before and after the
change in prosecution policy. Charges also were brought against several
other North Fond du Lac tavern owners, but no tavern owners outside of
North Fond du Lac were prosecuted on such commercial gambling
charges.
The defendant moved to dismiss the charges based in part on a claim
that he was the victim of selective prosecution. The circuit court
concluded that he failed to make out a prima facie case of selective
prosecution and terminated the hearing on the motion, excusing several
witnesses the state had produced to rebut any prima facie showing made
by the defendant. A jury later convicted the defendant on the two
counts. The court of appeals reversed the convictions, holding that the
defendant had been selectively prosecuted.
In a unanimous decision authored by Justice Bablitch, the supreme
court reversed and remanded. It began its analysis by noting that, in a
selective prosecution claim, the defendant has the initial burden to
present a prima facie showing of discriminatory prosecution before he or
she is entitled to an evidentiary hearing on the claim. If the defendant
succeeds, the burden then shifts to the state to show that the charging
decision reflects a valid exercise of prosecutorial discretion.
To establish a prima facie showing on a selected prosecution claim, a
defendant must show that he or she has been singled out for prosecution
while others similarly situated have not (discriminatory effect) and
that the prosecutor's discriminatory selection was based on an
impermissible consideration such as race, religion, or another arbitrary
classification (discriminatory purpose).
For purposes of this appeal, the parties conceded that the defendant
established a prima facie case for discriminatory purpose. The
prosecutions were limited to charges against North Fond du Lac owners,
indicating that the prosecutions were based on an arbitrary
consideration: geographic location. At oral argument before the supreme
court, the state conceded that the county's failure to distribute the
warning letter to North Fond du Lac tavern owners showed a
discriminatory intent against those tavern owners.
The court also concluded that the defendant had established a prima
facie case for discriminatory effect. Among other things, there was
evidence that taverns located in the City of Fond du Lac and engaging in
activities similar to those at the defendant's tavern were not
prosecuted, whereas the defendant, whose tavern was located in North
Fond du Lac, was prosecuted.
Concluding that the defendant has made out a prima facie showing of
selective prosecution, the burden shifts to the state to rebut that
showing. At this stage, the test is whether there exists any reasonable
basis to justify the classification. As described above, the circuit
court terminated the hearing after finding that the defendant did not
meet his burden. Accordingly, the state never was afforded the
opportunity to rebut the selective prosecution claim by showing a valid
use of prosecutorial discretion. Thus, the supreme court reversed the
court of appeals' decision and remanded the matter to the circuit court
for an evidentiary hearing on the rebuttal issue.
Intrastate Detainer Act - Failure to Comply With Statutory
Time Period - Dismissal With or Without Prejudice
State v. Davis, 2001
WI 136 (filed 27 Dec. 2001)
This case concerns Wisconsin's Intrastate Detainer Act, which is
codified in Wis. Stat. section 971.11. The statute provides that a
district attorney shall bring a criminal case on for trial within 120
days after receiving a request from an inmate of a state prison for a
prompt disposition of an untried criminal case pending against that
inmate. The statute further provides that if the criminal case is not
brought on for trial within the 120 days, "the case shall be
dismissed."
The critical issue before the supreme court in this case was whether
the dismissal called for by the statute is with prejudice or without
prejudice. In a unanimous decision authored by Chief Justice Abrahamson,
the supreme court concluded that a circuit judge has the discretion
under the Intrastate Detainer Act to dismiss the criminal case with or
without prejudice when the state fails to bring on the case for trial
within the statutory 120-day period.
In exercising its discretion to dismiss the case with or without
prejudice, a circuit court should consider several factors including,
but not limited to: the reasons for and the length of the delay in
bringing the criminal case on for trial; whether the nature of the case
makes it unreasonable to expect adequate preparation within the
statutory time period; an accused's conduct contributing to the delay;
an accused's waiver of the statutory right to prompt disposition; and
the harm to an accused resulting from the delay, such as anxiety and
concern. The court further indicated that the circuit judge should
consider the effect of the delay on: an accused's legal defenses, the
programs and movement within the institutions available to an accused,
the orderly rehabilitation process of an accused within the Department
of Corrections, an accused's concurrent sentencing possibilities, an
accused's possible transfer to a less secure facility, an accused's
opportunity for parole, and the transfer of the accused to another
institution. Further, the court should consider the effect of the delay
and dismissal on the public interest in the prompt prosecution of crime,
and the effect of the delay and dismissal on the victim. See
¶29.
Insurance
Subrogation - ERISA Carrier
Bruzas v.
Quezeda-Garcia, 2001 WI 127 (filed 4 Dec. 2001)
The prime issue on appeal was "whether an ERISA health benefit plan
must expressly confer discretion to the plan administrator before a
reviewing court owes deference to the administrator's interpretation of
the plan and actions taken under the plan." In a per curiam decision,
the court dismissed the certification from the court of appeals as
improvidently granted. At oral argument, counsel "acknowledged that the
record contains no explicit subrogation determination by the plan
administrator, nor any explicit interpretation of the plan subrogation
language by the plan administrator."
UIM - "Occupancy"
Mau v. North Dakota Ins.
Reserve, 2001 WI 134 (filed 21 Dec. 2001)
In this decision the Wisconsin Supreme Court answered a question
certified by the North Dakota Supreme Court: "Is Endorsement #1 in the
International Extended Protection Option (IEP) valid under Wisconsin law
to preclude underinsured motorist [UIM] coverage to one who rents a car
from Alamo, purchases the IEP Option, and is injured while sitting in a
different car?" The Wisconsin Supreme Court, in an opinion written by
Justice Crooks, found that the injured person, Wolfgang Mau, was a named
insured under the excess policy and that the occupancy requirement in
Endorsement #1 was not valid under Wis. Stat. section 632.32.
Mau and a companion, Jung, were Germans who visited Milwaukee and
rented a car from Alamo in April 1997. The rental voucher named "Mr.
Mau/Wolfgang" as the "renter." Mau and Jung traveled west in the rental
car through North Dakota, where Mau lost control and the car slid off
the road, its front wheels coming to rest over the road's shoulder. A
deputy sheriff arrived on the scene and asked Mau and Jung to wait in
his squad car while he tried to help them. A short time later another
vehicle, driven by Mashburn, lost control and slammed into the squad.
Mau was seriously injured in the crash. Mau and his wife eventually
settled against Mashburn for her $100,000 policy limits. The Mauses also
settled with the agency that insured the squad car, receiving $715,000
(this insurer's UIM limit was $1 million).
The certified question in this case relates to the Mauses' claim
against National Union, which issued the IEP coverage that provides
additional UIM on the Alamo rental car. The Wisconsin court rephrased
the issue as whether, "under Wisconsin law, an underinsured motorist
policy can define a named insured by requiring occupancy of a specific
vehicle" (¶12). Finding the excess policy's definition of "named
insured" to be ambiguous, the court concluded that a reasonable person,
in the insured's position, would have understood himself to be a "named
insured" and not an "occupancy insured." The court relied on the "plain
language" of Endorsement #1 and distinguished case law offered to show
that the IEP option provided additional limits only for occupancy
insureds.
After finding that Mau was a named insured, the court addressed the
validity of the occupancy requirement in Endorsement #1 under section
632.32, which it analyzed under the two-part test that governs
"exclusions" (¶33). The court found it invalid for several reasons.
First, the exclusion violated section 632.32(6)(b)2.a., "because the
occupancy requirement excludes coverage for a named insured" (¶34).
Second, the provision also constituted a form of "drive other car"
exclusion that was invalid under all three conditions in section
632.(5)(j) (¶38).
Justice Sykes, joined by Justices Bradley and Wilcox, dissented on
the ground that Mau was an "occupancy insured" under the policy. Justice
Wilcox also filed a separate dissenting opinion.
Torts
Independent Contractors - Nondelegable Duties - Vicarious
Liability
S.J.A.J. v. First Things
First Ltd., 2001 WI 118 (filed 6 Nov. 2001)
The supreme court divided equally over whether to affirm or reverse
the court of appeals' decision (Justice Bablitch did not participate).
For this reason, the decision of the court of appeals was affirmed. The
case raised issues concerning a clinic's vicarious liability for
misconduct by its independent contractors, the scope of employment of
such contractors, nondelegable duties, and Wisconsin patient's bill of
rights, Wis. Stat. section 51.61.
Recreational Immunity - Schools - Mandatory
Recess
Auman v. School
District, 2001 WI 125 (filed 27 Nov. 2001)
This case presented a single issue: "Is a school district immune from
liability under Wisconsin's recreational immunity statute, Wis. Stat.
section 895.52, for injuries a student suffered during a mandatory
school recess period when the injuries were caused by the alleged
negligent inspection and maintenance of a school playground and alleged
negligent supervision of the student?" (¶2). The court, in an
opinion written by Chief Justice Abrahamson, held that section 895.52
did not apply in this context.
Trista, an 11-year-old child, broke her leg during a mandatory school
recess while sliding on a snow pile on the school's playground. The
trial court dismissed her lawsuit based on a ruling that the school
district could assert recreational use immunity under section
895.52.
Claims of recreational immunity, according to the supreme court,
present "an intensely fact-driven inquiry." The injured person's
"subjective assessment of the activity is pertinent" but not controlling
(¶12). Trista's activities did not fall within the "educational
activity" category set forth in section 895.52, which "refers to
participation in an outdoor learning experience voluntarily entered into
by the individual" (¶14). "Under the objective reasonable person
test, not every outdoor activity is a recreational activity, nor is
every form of child's play a recreational activity under Wis. Stat.
section 895.52" (¶16). Distinguishing case law, the court observed
that "Trista went to school for educational purposes in compliance with
state law." Nothing in the rule's language or its policy "immunize[d]
school districts from liability for not exercising reasonable care in
the maintenance of school facilities or supervision of schoolchildren
during regular school hours" (¶22). The court concluded with a
footnoted plea that the statute be reviewed by the legislature.
Justice Wilcox, joined by Justice Crooks, concurred and wrote
separately to emphasize that school districts' statutory obligation to
repair and maintain buildings and grounds also militated against a
finding of immunity.
Recreational Immunity - Immunity of Owners of Structures in
Which Injuries Occur
Peterson v. Midwest Security
Ins. Co., 2001 WI 131 (filed 7 Dec. 2001)
The plaintiff was seriously injured when the tree stand in which he
was bow hunting gave way and he fell to the ground. The tree stand had
been built by and was owned by the nephew of the landowners on whose
property the tree stand was located. At the time of his injury, the
plaintiff was hunting with permission of both the landowners and the
owner of the tree stand.
The plaintiff sued the insurer of the tree stand owner. The circuit
court dismissed the case, concluding that the recreational immunity
statute applied. The court of appeals affirmed.
In a majority decision authored by Justice Sykes, the supreme court
affirmed the court of appeals. The recreational immunity statute confers
immunity upon any person who "owns, leases or occupies property" for
injuries to those engaged in recreational activity on the property.
See Wis. Stat. § 895.52(1)(d)1. Hunting is specifically
listed as a "recreational activity" in the statute. "Property" is
defined as "real property and buildings, structures and improvements
thereon, and the waters of the state." Id.
The court concluded that a tree stand is a "structure" as that term
is commonly and ordinarily understood. The recreational immunity statute
does not require that the owners of "buildings, structures and
improvements" also own the underlying real property in order to qualify
for immunity. Accordingly, the tree stand owner was entitled to immunity
under the statute, even though he did not also own the real property on
which the tree stand was built.
Justice Prosser filed a concurring opinion. Justice Bradley filed a
dissent.
Wisconsin Lawyer
