Court of Appeals Digest

By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer

| Administrative Law | Civil Procedure | Constitutional Law |
| Criminal Procedure | Family Law | Insurance | Juveniles |
| Motor Vehicle Law | Municipal Law | Torts |

Administrative Law

PSC Determinations - Standards of Review

Barron Electric Coop. v. PSC of Wisconsin, No. 97-0420
(filed 7 Aug. 1997) (ordered published 30 Sept. 1997)

The PSC ruled that Barron Electric Cooperative did not have the right to provide electric service to a residential development and ordered removal of the line. The dispute centered over section 196.495(1m)(b) of the Wisconsin Statutes. The circuit court concluded that it owed "little or no deference" to the PSC and reversed based upon its own interpretation of the statute. The "crucial issue" in this case concerned the "scope of judicial review of the commission's decision interpreting and applying the provisions of sec. 196.495, Stats."

The court of appeals, in an opinion written by Judge Eich, reversed. The court held that the commission's decision was entitled to "great weight and should be affirmed if it is reasonable, even if another interpretation ... might be equally reasonable." The court discussed the case law setting forth the various levels of judicial scrutiny of administrative determinations. Barron did not dispute the commission's expertise in applying the statutes nor did it argue that the commission's decision would somehow retard "uniformity and consistency" in its application. Rather, Barron contended that because the commission did not point to a specific past case involving analogous facts, this case was one of "first impression" and the commission's decision entitled to no weight. Rejecting this position, the court of appeals observed that the test is not whether the commission ruled on even a substantially similar case in the past. "Rather, the cases tell us that the key in determining what, if any deference courts are to pay to an administrative agency's interpretation of a statute is the agency's experience in administering the particular statutory scheme - and that experience must necessarily derive from consideration of a variety of factual situations and circumstances." The record revealed that the commission had "a long-standing history of interpreting the statute" to "public utility territorial disputes." Turning to the case specifics, the court found that the commission's determination was reasonable.

Civil Procedure

Answers - Courtesy Agreements - Excusable Neglect

Rutan v. Miller, No. 97-0547 (filed 26 Aug. 1997)
(ordered published 30 Sept. 1997)

The trial court entered a default judgment against the defendants after their attorney apparently failed to file a timely answer. Defense counsel claimed that she filed the answer within the time permitted by a courtesy agreement between counsel.

The court of appeals, in an opinion written by Judge Myse, reversed based upon the defense attorney's excusable neglect. "Excusable neglect is conduct that 'might have been the act of a reasonably prudent person under the same circumstances.'" Courts are to consider not just the causes for neglect but also the interests of justice, including the sometimes contradictory interests of ensuring prompt adjudication and affording parties their day in court.

Unlike the trial judge, the court of appeals was untroubled by the failure to reduce the oral courtesy agreement to writing. Defense counsel had requested and received consent to file an answer 20 days after the last of three named defendants was served. The problem arose because of uncertainty over the date on which the third defendant was served. In finding excusable neglect the court of appeals focused on two factors: the representations made by a paralegal working for plaintiff's counsel about the status of service and "the substantial unaccounted-for delay of nineteen days between service of [the third defendant] and the filing of notice of service." Once defense counsel became aware that service had been effected, she promptly filed the answer - a week before what she thought was the original due date.

Constitutional Law

Education - Milwaukee Parental Choice Program - Constitutionality

Jackson v. Benson, No. 97-0270 (filed 22 Aug. 1997)
(ordered published 30 Sept. 1997)

The Milwaukee Parental Choice Program (Wis. Stat. § 119.23), as amended by 1995 Wis. Act 27, sections 4002-4009, permits up to 15 percent of the student membership of the Milwaukee Public School System to attend private schools, both sectarian and nonsectarian, at state expense. The plaintiffs brought these actions claiming that the amended program violates the First Amendment of the U.S. Constitution and various provisions of the Wisconsin Constitution.

As it pertains to this appeal, the circuit court concluded that the amended program violates Article I, section 18 of the Wisconsin Constitution because its primary effect "is to benefit the religious missions of the elementary and secondary religious schools and because it compels Wisconsin taxpayers to support places of worship without their consent." In a decision authored by Judge Deininger, the court of appeals affirmed. Given projected participation in the program, the court observed that well over $40 million in state payments could be received by sectarian schools. The court thus concluded that "a primary effect" of the amended program is the drawing of money from the state treasury for the benefit of religious schools. This program, said the court, violates the religious benefit clause of Article I, section 18 of the Wisconsin Constitution.

Judge Roggensack filed a dissenting opinion.

Criminal Procedure

Ineffective Assistance of Counsel in Pretrial Stage - Remedy

State v. Lentowski, No. 96-2597-CR (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)

The defendant was charged with one count of sexual intercourse with a child over age 16 and with 10 counts of sexual exploitation of a child. In plea negotiations the district attorney offered charge and sentencing recommendation concessions. The defendant discussed the offer with his attorney but rejected it based upon counsel's representations that the prosecutor's sentencing recommendation was too harsh and that the defendant had the defenses of consent and mistake of age available to him. The case proceeded to trial and the jury found the defendant guilty on all but one count.

After conviction the defendant claimed that he had been denied effective assistance of counsel. Following a hearing the circuit court held that his attorney was deficient in failing to tell him that consent was not a valid defense in the case and in failing to inform the defendant that he was unable to satisfy the evidentiary requirements of a "mistake of age" defense to the charges of sexual exploitation of a child. The court further found that the attorney's deficient performance prejudiced the defense. There was no dispute but that the defendant would have accepted the plea bargain if he had realized that he had no defense to the charges.

The issue before the court of appeals was the determination of the proper remedy for a defendant who has proven that, at the pretrial stage, he or she received ineffective assistance of counsel which led the defendant to proceed to trial when he or she otherwise would have accepted a proffered plea bargain and pled guilty.

In a decision authored by Judge Snyder, the court held that where a defendant can prove ineffective assistance of counsel at the pretrial stage, the defendant must be granted a new trial. The decision of whether to offer another plea bargain or to try the case a second time is then left to the discretion of the prosecutor. This remedy places the defendant at a stage in the proceedings prior to the point at which he or she failed to receive the effective assistance of counsel.

Habitual Criminality - Determining Date of Prior Conviction

Mikrut v. State, No. 96-2703 (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)

The state claimed that the defendant was a repeat offender and thus eligible for treatment as a habitual criminal because of his prior felony record. Section 939.62(2) of the Wisconsin Statutes provides that a defendant is a repeater if he or she has been convicted of a felony during the five-year period immediately preceding the commission of the crime underlying the present charge.

At the core of this appellate litigation was the issue of determining the date of the defendant's prior conviction. The defendant argued that the date of the prior conviction was the date on which he was adjudged guilty based upon his entry of a no contest plea, rather than the date of the judgment of conviction when the court sentenced him. If the earlier date applied, more than five years would have elapsed between the prior conviction and the present offense and the defendant would not be a repeater.

In a decision authored by Judge Nettesheim, the court of appeals concluded that section 972.13 of the Wisconsin Statutes governs the resolution of this case. The statute provides that "a judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest." The statute provides that the judgment of conviction must recite the plea, the verdict or finding, the adjudication and the sentence. Therefore, a judgment of conviction cannot be entered until each of these events has occurred. In the case before the court, this meant that the date of the defendant's prior conviction was the date on which the circuit judge sentenced him, made all of the judicial pronouncements required by section 972.13, and entered the judgment of conviction against him.

Shackled Defendants - Escape - Identification Testimony

State v. Knighten, No. 96-2595-CR (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)

Knighten was convicted of strong-arm robbery following a jury trial. On appeal he raised several alleged errors. The court of appeals, in an opinion written by Judge Nettesheim, affirmed.

First, the court properly admitted evidence of Knighten's "escape" from custody. While being escorted to the bathroom on the morning of trial, Knighten bolted and was apprehended about 30 minutes later. The admissibility of flight or escape evidence is reposed to the trial court's discretion. While not presenting the "usual escape situation," the evidence was properly admitted to show Knighten's consciousness of guilt.

Second, no error occurred with respect to the shackles placed on Knighten throughout the trial. Although Knighten asserted that the jury could have seen the shackles, the court of appeals commended the trial judge for the excellent record she made describing the construct of counsel table and the jury's inability to see the shackles. It also was revealed during voir dire that a potential juror observed a shackled Knighten in the hallway. The trial judge properly refused the request for a mistrial. First, the jury was instructed about the presumption of innocence and that his custodial status had no bearing on guilt. Second, jurors responded that they would not let such information interfere with their verdict. Third, the sighting of a restrained defendant outside the courtroom is not likely to arouse juror prejudice, especially when the jury was later told about the escape.

As to the third claim of error, the trial judge properly refused the defendant's request to have an eyewitness identify the defendant from an array of 16 booking photos which had been covered to reveal only the eyes and the top of the nose. Any probative value to Knighten's "experiment" was outweighed by the likely confusion, waste of time, and unfair prejudice arising from dissimilarities between the photo display and the circumstances surrounding the identification.

Family Law

Termination of Parental Rights - Return of Child to Biological Parent - Objections of Foster Parent

Sallie T. v. Milwaukee County Department of Health and Human Services, No. 96-3147 (filed 8 July 1997) (ordered published 30 Sept. 1997)

Nadia S. first came to the attention of the juvenile court on a request for emergency detention in 1989 when she was several months old. In 1990 she was found to be a child in need of protection or services and was placed in the foster care of Sallie T. and her husband, with whom Nadia then lived until 1996. In that year the biological mother filed a petition moving to revise the dispositional order affecting her daughter and seeking the return of Nadia to her care. The Milwaukee County Department of Health and Human Services, agreeing with the mother's wishes, initiated a change of placement of Nadia back to her mother pursuant to section 48.357(1) of the Wisconsin Statutes. Sallie objected to the transfer. Following hearings the juvenile court determined that the change of placement to the mother was in Nadia's best interests. Sallie appealed.

The critical dispute on appeal centered on the meaning of the words "the best interests of the child" as it is used in section 48.64(4)(c) of the Wisconsin Statutes. This statute provides that at the court hearing described above the circuit judge was to determine the case "so as to promote the best interests of the child." Sallie argued that once a child is removed from the home of a parent and lives with a foster parent for more than six months, the Legislature intended a definition of "the best interests of the child" similar to that used in custody cases between two parents. Sallie urged that the juvenile court must treat the foster parent and the biological parent as equals and decide the "best interests of the child" issue on an objective basis. She envisions the court giving no special preference to a biological parent in a biological parent/foster parent custody dispute.

In a decision authored by Judge Curley, the court of appeals affirmed. It agreed with the children's court that the wording of section 48.64(4)(c) must be harmonized with the Children's Code's purpose to preserve "the unity of the family." Wisconsin case law supports the juvenile court's interpretation that a caretaker does not stand as an equal to a biological parent in a placement dispute. In an earlier case addressing the constitutionally protected right of a parent to the custody of his or her child, the court had observed that "the fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their children to the State." See Howard M. v. Jean R., 196 Wis. 2d 16, 539 N.W.2d 104 (Ct. App. 1995). Consequently, when Sallie urged an interpretation of the phrase "best interests of the child" that gives no advantage to a biological parent in a custody dispute, but rather applies a simple "best interests of a child test" as used in ordinary custody cases between two parents, she was encroaching on a constitutionally protected area. The court of appeals rejected that interpretation.

Among several additional issues raised by Sallie was a claim that the juvenile court erroneously exercised its discretion when it permitted Nadia to be returned to her mother. Part of this challenge was a claim that the juvenile court failed to consider Nadia's excellent adjustment and achievements while in Sallie's care. Sallie contended that, in deciding the case, the judge erred by not comparing her home and parenting skills with those of the biological mother. The juvenile court resisted this interpretation and refused to become engaged in a contest between the two households. Instead, it concentrated on the dispositional orders and the decision of the county department to return Nadia to her mother. Having previously determined that the interpretation of the "best interests of the child" test found in section 48.64(4)(c) is to be tempered by the overall scheme of the Children's Code, which promotes family unification, the court of appeals held that the juvenile court was correct when it refused to engage in the comparison urged by Sallie.

Insurance

Intentional Acts - Separate Acts of Negligence -
Doctrine of Fortuitousness

Haessly v. Germantown Mut. Ins. Co., No. 96-3238 (filed 27 Aug. 1997) (ordered published 30 Sept. 1997)

The plaintiff and defendant were living together when defendant severely beat her and failed to get her medical attention for five days. Plaintiff contends that the omission to get medical aid constitutes a separate act of negligence that is covered by the defendant's homeowner's insurance. The trial judge granted summary judgment to the homeowner's insurer, finding no coverage because of the policy's intentional acts exclusion.

The court of appeals, in an opinion written by Judge Snyder, affirmed. The court framed the issue as one of first impression: If a defendant intentionally commits a criminal act, battery, can his subsequent failure to come to the victim's aid and seek treatment constitute an independent act of negligence? On appeal both parties framed the issue as whether any part of defendant's actions were negligent, but the court did not reach this issue. Rather, it held that "another principle of insurance contract law, the principle of 'fortuitousness,' is determinative of the coverage issue." The court concluded that "a reasonable person would not expect that his or her homeowner's policy would provide liability coverage for a failure to provide aid to someone whom he or she had previously rendered helpless through an intentional act." The result also was justified by public policy factors.

Juveniles

Delinquency - Disabled Children - IDEA Reviews

State v. Trent N., Nos. 96-2327 & 96-2328 (filed 6 Aug. 1997)
(ordered published 30 Sept. 1997)

The issue in this case was whether "a Wisconsin juvenile court is barred from exercising its jurisdiction in a delinquency proceeding while administrative review proceedings are pending under the federal Individuals with Disabilities in Education Act (IDEA) and its Wisconsin statutory equivalent." Writing for the court of appeals, Judge Nettesheim reversed the circuit court and held that the juvenile court does retain jurisdiction.

Juvenile court proceedings were commenced against young Trent because he allegedly hit another student and tried to set fire to a school locker. To resolve these cases, Trent entered into a consent decree that he allegedly violated by a later act of disorderly conduct. Facing a motion to revoke the consent decree and a new delinquency petition, young Trent moved to dismiss both proceedings because he was emotionally disturbed and administrative proceedings under IDEA were then ongoing.

The court outlined the contours of IDEA and section 115.81 of the Wisconsin Statutes, the Wisconsin equivalent. Although the federal statute had been amended recently to expressly permit prosecution while IDEA proceedings are pending, Wisconsin has not yet amended its statutory version. Applying present law, the court found no conflict between the two schemes. Administrative proceedings between the school and parents to secure appropriate programs can proceed regardless of the child's status in juvenile court. The school cannot "end-run" IDEA because the juvenile court is the ultimate superintending authority. Moreover, a Wisconsin school "is powerless to initiate delinquency proceedings," which are initiated by police.

Motor Vehicle Law

OWI - Implied Consent - Erroneous Information Provided to Driver - Litigating the Remedy

State v. Ludwigson, No. 97-0417 (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)

The defendant was arrested for driving while under the influence of an intoxicant. The officer read to her the provisions of the "Informing the Accused" form which specify a driver's rights and obligations under the implied consent law. In addition to reading the form's text to the defendant, the officer then attempted to explain the form to her in "layman's terms," but in doing so provided erroneous information about the length of revocation the defendant faced for an implied consent refusal and about the defendant's right to an alternate chemical test. After the officer read and explained the form to the defendant, she refused the test and an implied consent prosecution was initiated. The trial court found that the defendant unlawfully refused to submit to chemical testing, holding that the incorrect information given to her by the officer did not affect her ability to make a choice about the chemical testing. In a decision authored by Judge Brown, the court of appeals affirmed.

In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), the court of appeals set forth a three-pronged test to use when an allegedly intoxicated driver claims that a refusal to take a chemical test stemmed from an officer's having either not sufficiently read the "Informing the Accused" form or having gone beyond simply reading the form. The three prongs are framed as the following questions: 1) Did the officer not meet or did he or she exceed the duty under the implied consent law to provide certain information to the accused driver? 2) Was the lack or oversupply of information misleading (which means was the information erroneous)? 3) Did the failure to properly inform the driver affect his or her ability to make the choice about chemical testing?

In this case the court held that the police officer exceeded his duty under the implied consent statute by trying to explain the "Informing the Accused" form and that the information given to the defendant was erroneous. Thus, the critical issue was whether the provision of erroneous information affected the defendant's ability to make the choice about chemical testing.

The court held that, when an officer exceeds his or her duty in advising an arrested driver about the implied consent law, and the extra information provided is erroneous, then it is the defendant's burden to prove by a preponderance of the evidence that the erroneous information caused the defendant to refuse to take the test. As a matter of procedure, the party claiming that the refusal was lawful has the burden of production to present the trier of fact with enough evidence to make a prima facie showing of a causal connection between the misleading statements and the refusal to submit to chemical testing. Then, said the court, the burden shifts to the state to prove otherwise. "At the end, the trial judge, acting as the trier of fact, assesses the credibility of the two sides and determines as a matter of fact whether the erroneous extra information caused the defendant to refuse to take the test. The defendant has the ultimate burden of proving the causation element to a preponderance of the evidence."

In this case the defendant never presented any evidence to show that the erroneous information caused her to refuse to take the test. She did not take the stand on her own behalf and was unable to point out anything in the officer's testimony that would support her claim. When a party fails to produce any credible evidence as to an element of his or her claim, the party fails to meet his or her burden of proof as a matter of law. That is what occurred here.

Municipal Law

County Executives - Power to Veto Rezoning Legislation - Judicial Review

Schmeling v. Phelps, No. 96-2661 (filed 14 Aug. 1997)
(ordered published 30 Sept. 1997)

The plaintiffs petitioned to rezone certain property owned by them. The town planning commission and town board approved the petition as did the county zoning committee and the county board of supervisors. However, the county executive vetoed the petition and an attempt to override the veto failed. The plaintiffs then commenced this action seeking a judgment declaring the county executive's veto invalid and reinstating the county board's approval of the petition for rezoning. The circuit court granted the plaintiffs' motion for summary judgment.

The court of appeals, in a decision authored by Judge Deininger, reversed and remanded. The court concluded that a county executive's authority under Article IV, section 23a of the Wisconsin Constitution to veto "resolutions or ordinances" passed by the county board, extends to rezoning petitions, which are in essence proposed amendments to a county zoning ordinance.

The appellate court further held that the executive's action in vetoing a rezoning petition was a legislative act, subject to court review in the same manner and according to the same standard as a county board's failure to approve a petition to rezone a specified parcel. The court observed that the county executive's argument that his reasons for vetoing the proposed rezoning are beyond the reach of court review might well be persuasive if the object of his veto were "general" legislation and not a zoning action. Zoning actions, however, because they affect the property rights of specific individuals, traditionally have been treated differently than general municipal legislation under both statute and case law. The judicial review, however, is very limited: "since zoning is a legislative function, judicial review is limited and judicial interference restricted to cases of abuse of discretion, excess of power, or error of law."

Finally, the court concluded that section 893.80(4) of the Wisconsin Statutes did not bar this action. This statute provides in pertinent part that no suit may be brought against a political corporation, governmental subdivision or agency or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Applying these principles the court held that the facts of record in this matter did not establish that the county executive abused his discretion, exceeded his power or committed an error of law in vetoing the rezoning petition. At best, the record shows that he made some inconsistent legislative decisions in similar situations. That, said the court, did not constitute a basis for judicial invalidation of the veto.

Torts

Statute of Limitations - Discovery Rule

Fojut v. Stafl, No. 96-1676 (filed 12 Aug. 1997)
(ordered published 30 Sept. 1997)

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the dismissal of a medical malpractice action because it was time barred by the statute of limitations. On Nov. 28, 1990, Helen had an elective tubal ligation because she did not want to become pregnant. On April 9, 1991, she missed her menstrual period and on April 24 discovered that she was pregnant. On April 22, 1994, she filed this complaint.

Applying section 893.55(1) of the Wisconsin Statutes, the court held that "the date of injury was the day Helen became pregnant, which was sometime in March 1991." Thus her complaint was time barred by the three-year statute of limitations. The court rejected the defendant's argument that the date of injury was the date of the surgery. There was no evidence that Helen was injured on the date of surgery. Helen did not suffer "injury" until she became pregnant in March 1991.

Statute of Limitations - Accrual - Sexual Assaults

Joseph W. v. Catholic Diocese of Madison, No. 96-2220
(filed 21 Aug. 1997) (ordered published 30 Sept. 1997)

The plaintiffs alleged that a priest sexually abused their child. The trial court dismissed this action against the priest, the church and the local diocese. The court of appeals, in an opinion written by Judge Vergeront, affirmed. The opinion is a fact-intensive application of the supreme court's recent decision in John B.B.B. Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (1997). The court of appeals observed that "our supreme court in John B.B.B. Doe enunciated a clear public policy against an indefinite extension of the statute of limitations and gave that policy decisive weight against those favoring the plaintiffs in circumstances that are similar in significant ways to the circumstances" of this case. Conceding that "there are strong public policy reasons for holding that the parents' claims for injuries out of a nonincestuous sexual assault on their child accrues when they discover or in the exercise of reasonable diligence should have discovered that their child was assaulted, we hold that the parents' claims accrue on the date of the last assault of their child, the same date on which their child's claims accrue. We also hold that the statute of limitations and the minority tolling period that applies to their child's claims applies to the parents' claims."

Third-party Beneficiaries - Employment Contracts

Schilling v. Employers Mut. Cas. Co., No. 96-2165 (filed 14 Aug. 1997) (ordered published 30 Sept. 1997)

Schilling, a high school student, was injured in a high school shop class accident. The injury occurred while he assisted his teacher in attempting to remove a bearing from a machine. The teacher had requested Schilling's assistance. The trial judge found that Schilling was a third-party beneficiary of the employment contract between the school district and the teacher and the school district's insurance contract. For this reason the plaintiffs (Schilling and his parents) could recover up to the $1 million limit on a breach of contract claim because the $50,000 limit on tort claims in section 893.80 of the Wisconsin Statutes was not applicable to the contract claim.

The court of appeals, in an opinion written by Judge Vergeront, reversed. The court held that Schilling was not a third party beneficiary of the teacher's employment contract and therefore it was unnecessary to address the insurance contract. Although some evidence showed that it was the teacher's responsibility to supervise his students and teach and enforce safety rules (for example, the wearing of safety goggles), there was insufficient evidence that this was a "term of his contract with the school district, let alone a term of his contract included for the direct and primary benefit of the students." The court scrutinized testimony by school officials, curriculum plans and the faculty handbook. Neither the plans nor the handbook were incorporated into the contract.

Judge Roggensack concurred.

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.