Vol. 75, No. 6, June
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
Antitrust
Filed Rate Doctrine - Dairy Farmers
Servais v.Kraft Foods
Inc., 2002 WI 42 (filed
30 April 2002)
In a per curiam decision, the supreme court announced that it was
divided equally on the question of whether the court of appeals should
be affirmed. (Justice Wilcox did not participate.) The case concerned
the "filed rate" doctrine's application in a state antitrust action
brought by dairy farmers. For this reason, the decision of the court of
appeals at 2001 WI App 165, 246 Wis.2d 920, 631 N.W.2d 629 is
affirmed.
Civil Procedure
Claim Preclusion - Identity of Parties
Pasko v. City of
Milwaukee, 2002 WI 33 (filed 24 April 2002)
In 1993 Robert Pasko and 22 other city of Milwaukee police officers
commenced an action against the city of Milwaukee, its police
department, and its police chief. They alleged that, from 1984 to 1995,
they worked regularly as police alarm operators under a system known as
"underfilling," which entailed assigning lower ranking personnel to
carry out duties of higher ranking personnel rather than filling
vacancies at those higher positions by promotion. Despite working at the
police alarm operator rank, for which higher pay was established in the
collective bargaining agreement, the officers failed to receive that
higher pay. Instead, they were compensated at the lower rate applicable
to ordinary police officers.
The complaint alleged several causes of action, including: 1) breach
of contract for failure to pay at the higher rate provided for in the
collective bargaining agreement; and 2) a violation of Wis. Stat.
section 62.50(9). This statute, which is applicable to cities of the
first class, contains various provisions for filling vacancies in the
Milwaukee Police and Fire departments.
The circuit court granted summary judgment in favor of the defendants
on all claims except the breach of contract claim. On the latter, the
court granted summary judgment to the officers, concluding that the
defendants' failure to pay the officers the rate due police alarm
operators constituted a breach of the terms of the collective bargaining
agreement. The circuit court ordered the award of back pay to the
officers. On appeal, the court of appeals affirmed.
Subsequently, the same officers from the litigation described above
(Pasko I) and the Milwaukee Police Association (MPA) filed
another action in circuit court against the city (Pasko II).
The MPA is the certified collective bargaining unit for all city of
Milwaukee police officers in nonsupervisory ranks. In their complaint
the officers and the MPA alleged that vacancies remained at the rank of
police alarm operator and sought mandamus to compel the city to fill
these vacancies pursuant to section 62.50(9). In their answer the
defendants sought dismissal by invoking the doctrine of claim
preclusion. On summary judgment the circuit court ruled that the
officers and the MPA were both barred from proceeding because of claim
preclusion. It held that the officers were clearly barred because they
were the same plaintiffs as in the first lawsuit. With respect to the
MPA, the court held that, even though the union was not a party in the
first action, it still was barred from proceeding because it was the
collective bargaining agent that negotiated the contract that was at the
heart of both cases.
The court of appeals reversed. It concluded that the MPA's action
against the city was not barred by the doctrine of claim preclusion.
[The appellate court only addressed the MPA's claims because the
individual officers conceded that claim preclusion applied to them and
barred their claims in Pasko II.] The court of appeals further
held that the MPA was entitled to a writ compelling the city to fill the
vacancies in the rank of police alarm operator with qualified
officers.
In a unanimous decision authored by Justice Bablitch, the supreme
court reversed the court of appeals. It agreed that the MPA is not
barred by the doctrine of claim preclusion from bringing its writ of
mandamus action. Resolution of this issue turns on whether there was an
identity between the parties or their privies in the first and second
lawsuits. In Pasko I, the officers brought an action to obtain
relief for themselves because of the practice of underfilling at the
rank of police alarm operator. Based on state statute and the collective
bargaining agreement, they sought back pay and promotions for
themselves. Once the circuit court determined that the statute did not
require the promotions of the officers to this rank, the officers
abandoned this claim and instead pursued their claim under the
collective bargaining agreement, again seeking back pay and promotions
for themselves. Eventually they gained relief in the form of payment for
their services.
Unlike the officers, the MPA seeks in Pasko II a
determination based solely on state statute, arguing that section
62.50(9) requires the promotion of any qualified officer to vacancies in
the police alarm operator rank. The MPA is seeking a determination on
behalf of all of its members, that is, for any qualified officer who is
entitled to promotion to police alarm operator vacancies. The union's
interest in filling such vacancies is not based on the unfairness of any
individual officer's underfilling in these positions. Rather, its
interest is based on ensuring that a job classification for which it
specifically bargained is recognized by the city by filling any
vacancies in this classification. Further, the union's interest is based
on ensuring that the city meets its obligations under state statute. In
sum, the supreme court agreed with the court of appeals that claim
preclusion did not apply in Pasko II because there was no
privity between the union members in the first action and the union in
the second.
However, the supreme court disagreed with the court of appeals'
conclusion that, based on the current record, the MPA was entitled to a
writ of mandamus compelling the promotions of police officers to
vacancies within the police department. Instead, the court concluded
that remand is appropriate on this issue to determine whether the
collective bargaining agreement requires such promotions to occur,
whether vacancies exist for such promotions, and whether such vacancies
constitute the type of "newly created offices" for which the statute
provides certain required promotion procedures.
Criminal Law
Child Pornography - Multiplicity - Sufficiency of Search Warrant
Application
State v. Multaler,
2002 WI 35 (filed 25 April 2002)
Police found child pornographic materials in the defendant's house
while executing a search warrant for evidence implicating the defendant
in a series of homicides committed more than 25 years ago. The child
pornography was discovered on two computer disks recovered from the
defendant's home. These disks contained images of children engaged in
sexually explicit activity. Based on the contents of the disks, the
defendant was charged with 79 counts of child pornography in violation
of Wis. Stat. section 948.12 (1997-98). Ultimately, the defendant was
convicted on his plea to 28 counts under the same statute.
On appeal, the defendant argued that the 28 child pornography
convictions were multiplicitous because the Legislature did not intend
that a separate charge could be levied for each separate pornographic
image. In a unanimous decision authored by Justice Bradley, the supreme
court disagreed.
Wisconsin courts analyze claims of multiplicity using a two-part
test. First, they inquire as to whether the offenses are identical in
law and fact. Second, if the offenses are not identical in law and fact,
they ask whether the Legislature intended multiple punishments for the
offenses in question.
The state conceded that the 28 charges of child pornography for which
the defendant was convicted are identical in law because they fall under
the same statute. But the court concluded that the 28 counts are not
identical in fact. Inquiry into whether offenses are identical in fact
involves a determination of whether the charged acts are separated in
time or are of a significantly different nature. Acts may be "different
in nature" even when they are the same types of acts as long as each
required a new volitional departure in the defendant's course of
conduct. Applying these standards, the court concluded that the 28
counts were not identical in fact. There were more than 28 downloaded
files and the defendant made a separate decision to obtain each one.
Every time he downloaded a new file, he recommitted himself to
additional criminal conduct. "Each decision to download more child
pornography represented a new volitional departure" (¶ 58).
Having determined that the charges are different in fact, the court
turned to examine the Legislature's intent regarding the allowable unit
of prosecution under the 1997-98 version of section 948.12.
[Note: In 2001 Wis. Act 16, the Legislature amended section
948.12.] When charges are different in fact, the court presumes that the
Legislature intended multiple punishments. This presumption is rebutted
only by a clear indication of legislative intent to the contrary. The
court determined that the defendant failed to rebut the presumption that
the Legislature intended to allow punishment for each image on the
disks. In particular, the court rejected the defendant's position that
the number of charges is limited by the number of computer disks
possessed rather than by the number of images on those disks. Said the
court, "if the proper unit of prosecution were limited to the disk or
other storage device, an individual could possess thousands of images
depicting children in sexually explicit activity and face only one
charge under section 948.12" (¶ 66).
The court also concluded that the evidence in support of the search
warrant, which is too lengthy to detail here, provided a substantial
basis to conclude that there was a fair probability that evidence
relating to the old homicides would be found in the defendant's
house.
Justice Sykes did not participate in this case.
Criminal Procedure
Miranda - Right to Counsel - Equivocal Request for Counsel
after Waiver of Miranda Rights
State v. Jennings,
2002 WI 44 (filed 1 May 2002)
Before pursuing custodial interrogation of the defendant, the police
advised him of his Miranda rights and obtained a valid waiver
of those rights. Questioning proceeded and thereafter at one point the
defendant stated, "I think maybe I need to talk to a lawyer." At that
juncture questioning was halted but, approximately 15 minutes later, a
different detective entered the interrogation room and began asking
questions, during which the defendant made the statements that are the
subject of this appeal. The defendant did not ask for a lawyer at any
time during the questioning by the second officer.
The defendant successfully moved to suppress the statements given to
the second officer, claiming that they were given after he had invoked
his Miranda right to counsel. The suppression order was based
primarily on Wentela v. State, 95 Wis. 2d 283, 290 N.W.2d 313
(1980), wherein the supreme court held that the statement "I think I
need an attorney" or "I think I should see an attorney" constituted a
sufficient request for counsel. The state appealed, and the court of
appeals certified the case to the Wisconsin Supreme Court, which granted
certification.
The certified question posed by the court of appeals was whether it
may, must, or must not follow a decision of the Wisconsin Supreme Court
that is directly on point but that appears to conflict with subsequent
precedent from the U.S. Supreme Court. In this instance it was dealing
with a conflict between the holding in Wentela summarized above
and the subsequent decision of the U.S. Supreme Court in Davis v.
U.S., 512 U.S. 452 (1994). In Davis the U.S. Supreme Court
concluded that the statement "maybe I should talk to a lawyer" (which
was uttered mid-interrogation after the defendant originally waived his
Miranda rights) was equivocal and therefore not sufficient to
invoke the right to counsel under the Fifth Amendment.
Responding to the certified question, the supreme court, in a
majority decision authored by Justice Sykes, concluded that when the
court of appeals is confronted with a conflict between a decision of the
state supreme court and a later decision of the U.S. Supreme Court on a
matter of federal law, the court of appeals may, but is not required to,
certify the case to the state supreme court. If it does not, or if the
state supreme court declines to accept certification, the Supremacy
Clause of the U.S. Constitution compels the court of appeals to adhere
to U.S. Supreme Court precedent on matters of federal law, although it
means deviating from a conflicting decision of the state supreme
court.
Turning to the merits of this case, the majority concluded that the
defendant's mid-interrogation statement ("I think maybe I need to talk
to a lawyer") was insufficient under Davis to invoke his right
to counsel under the Fifth and Fourteenth Amendments. The court further
concluded that the officers were not required to cease questioning the
defendant, nor were they required to clarify his statement. The
Davis court refused to adopt a requirement that officers must
ask clarifying questions to resolve an ambiguous reference to counsel,
though it recognized that it will often be good police practice for the
interviewing officers to clarify whether or not the suspect actually
wants an attorney. [The Davis holding on clarification
conflicts with State v. Walkowiak, 183 Wis. 2d 478, 515 N.W.2d
863 (1994), in which the state supreme court held that when a suspect
makes an equivocal reference to counsel, the police must cease all
interrogation, except they may attempt to clarify a suspect's desire for
counsel.]
Given the conflict of Davis with Wentela and
Walkowiak, the supreme court overruled Wentela and
Walkowiak in this decision. It also declined to interpret the
Wisconsin Constitution's right against self-incrimination more broadly
than the federal constitutional right.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justices Bablitch and Bradley.
Insurance
Stacking - "Regular Use" Exclusion
Martin v. American Family
Mutual Ins. Co., 2002
WI 40 (filed 30 April 2002)
Eric Johnsen struck and injured Karen Martin while driving a pickup
truck owned by his father, Henry. The pickup truck was covered by an
American Family policy that indemnified Eric for liability incurred by
his permitted use of the truck. American Family settled with the
plaintiffs, Martin and her husband, by paying its liability limit of
$150,000 under Henry's policy. Since their damages exceeded that amount,
the plaintiffs also sought to recover under another liability policy,
also issued by American Family, which covered Eric's own van (which was
not involved in the accident). In short, the plaintiffs sought to stack
the policies. Eric's policy contained a "regular use" exclusion, "which
provides that American Family is not liable for bodily injuries `arising
out of the use of any vehicle ... furnished or available for regular use
by [Eric Johnsen] or any resident of [his] household'" (¶7).
The circuit court agreed with American Family that the regular use
exclusion precluded coverage under Eric's policy. The court of appeals
affirmed.
The supreme court, in an opinion written by Chief Justice Abrahamson,
affirmed. The "determinative issue" was whether the policies "promise to
indemnify Eric Johnsen against the same loss" (¶13). Such a
determination must be made on a case-by-case basis. In rejecting the
plaintiffs' arguments, the supreme court primarily relied upon its
decision in Agnew v. American Family Mutual Insurance Co., 150
Wis. 2d 341 (1989). The court held that "the `regular use' exclusion is
designed to prevent a policyholder from purchasing an insurance policy
and paying the premium to insure a vehicle while in effect having
available two vehicles for regular use - one that the policyholder owns
and insures and another that the policyholder does not own but that is
available to him for regular use. The potential or actual habitual use
of a nonowned vehicle by the policyholder in the present case, just like
the potential or actual habitual use of another owned vehicle by the
policyholder in Agnew, increases the insurance company's risk
without a corresponding increase in the premium" (¶22). In sum,
only Henry's policy covered this loss and the regular use exclusion was
enforceable.
Statute of Limitations - Coverage - Triggering Date
Yocherer v. Farmers Ins.
Exchange, 2002 WI 41 (30 April 2002)
Karen Yocherer was injured in a 1987 automobile accident. In February
1995 she settled her claims with the tortfeasors and reserved her claims
against her own underinsured motorist (UIM) policy issued by Farmers
Exchange (Farmers). As provided by the policy, the parties began
arbitration proceedings, which were terminated on Feb. 12, 1997, when
Farmers advised Yocherer that the statute of limitation had expired. In
May 1997, Yocherer and her husband began this action against Farmers for
bad faith, breach of contract, and other claims. Farmers asserted
defenses based on the statute of limitation, estoppel, and laches.
The circuit court denied Farmers' motion to dismiss on these grounds.
It ruled that the six-year statute of limitation that governs contract
actions accrued only when Farmers breached the contract, which allegedly
occurred when it terminated the arbitration proceedings in February 1997
(nearly 10 years after the accident). See Wis. Stat. §
893.43. The court of appeals affirmed.
The supreme court, in a decision authored by Justice Prosser, also
affirmed but on a different theory. The parties agreed that the
applicable statute of limitation was section 893.43. Analyzing prior
case law, the court held "that the date of loss for actions seeking
coverage for underinsured motorist coverage is the date on which there
has been a final resolution of the underlying claim with the tortfeasor,
be it through denial of the claim, settlement, judgment, execution of
releases, or other form of resolution" (¶22). Thus, in this case,
the six-year statute began running in February 1995 when Karen Yocherer
settled with the original tortfeasors in the 1987 accident. Since this
action was begun about two years later, it fell well within the six-year
limit established by section 893.43.
The court also rejected defenses grounded in laches or equitable
estoppel. The lower courts correctly found that the plaintiffs had not
engaged in unreasonable delay and that Farmers failed to demonstrate
prejudice. Moreover, the plaintiffs' decision to arbitrate before
litigating constituted neither "error or delay" (¶24). Nor did the
doctrine of equitable estoppel apply. Farmers "failed to meet its burden
by providing facts to show that it relied upon any actions of the
[plaintiffs] to its detriment" (¶25).
Writs
Habeas Corpus - Adequate Alternate Remedy
State ex rel. Haas v.
McReynolds, 2002 WI 43 (filed 30 April 2002)
The Racine Municipal Court issued seven commitment orders for the
petitioner after he failed to pay forfeitures to the city for various
ordinance violations. After the petitioner was taken into custody, he
challenged his confinement by filing a petition for a writ of habeas
corpus in the circuit court, contending that the municipal court lacked
jurisdiction to issue the commitments. The circuit court denied the
request for the writ.
The petitioner then filed a notice of intent to appeal the circuit
court's decision. Within a few days he also filed a separate petition
for a writ of habeas corpus with the supreme court. He then voluntarily
withdrew his appeal of the first petition. The supreme court transferred
the second habeas petition to the court of appeals for disposition and
the court of appeals denied it. In a unanimous decision authored by
Justice Wilcox, the supreme court affirmed the court of appeals' denial
of the second petition.
The basis for the affirmance by the supreme court was that the
petitioner had an adequate alternative remedy available to him. "We have
long and consistently held that the extraordinary writ of habeas corpus
is not available to a petitioner when the petitioner has other adequate
remedies available" (¶ 14).
In this case there was no question that the petitioner had an
otherwise adequate remedy: his direct appeal of the denial of his first
writ, which he voluntarily dismissed. Rather than seeking a second
habeas corpus writ, the appropriate course of action for the petitioner
should have been a challenge of the circuit court's denial of his first
habeas corpus petition before the court of appeals.
Wisconsin Lawyer