Court of Appeals Digest

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

| Attorneys | Constitutional Law | Criminal Procedure |
| Family Law | Juvenile Law | Torts |
| Worker's Compensation |

Juvenile law

CHIPS Proceedings - Interrogation of Juvenile
- Applicability of Miranda v. Arizona

State v. Thomas J.W., No. 97-0506 (filed 9 Sept. 1997) (ordered published 28 Oct. 1997)

A petition was filed alleging that Thomas J.W. was a child in need of protection or services in that he was a child under the age of 12 who had committed a delinquent act, namely, setting a fire in his elementary school. Thomas moved to suppress his oral and written statements made to a police liaison officer on the ground that the statements were obtained in violation of his constitutional right not to incriminate himself. At an evidentiary hearing on the matter, the officer who questioned Thomas admitted that the interrogation was not preceded with Miranda warnings.

The circuit court found that Thomas was in custody, was interrogated and was not advised of his Miranda rights. However, it went on to conclude that, as a matter of law, Miranda did not apply in Thomas's case. It pointed out that Miranda applied in criminal cases and that Thomas was the subject of a CHIPS petition, which is distinct from a criminal case in that its purpose is to provide services and protection to the child as opposed to punishment. Based upon these findings, the circuit court admitted Thomas's statements in the CHIPS proceeding.

In a decision authored by Judge Cane, the court of appeals affirmed. It began its analysis by noting that Wisconsin has followed the principle that, while the Fifth Amendment privilege against self-incrimination is a constant in civil and criminal proceedings, the procedural safeguards of Miranda warnings are not necessary in certain civil proceedings. The applicability of Miranda does not turn solely upon whether a proceeding is labeled "civil" or "criminal." Rather, the substance of the proceeding determines its applicability.

Wisconsin has extended the Miranda protections to minors in juvenile delinquency proceedings and waiver proceedings. This extension was based upon the premise that procedural safeguards were necessary because the juveniles were facing exposure to significant imprisonment or confinement in detention facilities. Thomas urged the court to follow this line of cases in his case reasoning that there should be no distinction among the procedural safeguards of children's rights , whether they are the subject of a CHIPS petition or a juvenile delinquency or waiver proceeding.

The court of appeals was not persuaded. It found that Thomas offered no compelling reason for extending the procedural safeguards set forth in Miranda to a CHIPS situation. It agreed with the state that a CHIPS proceeding significantly differs from a criminal proceeding. The focus of CHIPS proceedings is on providing treatment and services to the child. Because this is significantly different from a criminal proceeding, the court concluded that statements made by Thomas were admissible in his CHIPS case even though no Miranda warnings had been given to him before he was questioned. The focus on providing protection and services, and the absence of punitive measures available to the judge at disposition, make a CHIPS proceeding substantially different from the type of criminal proceeding contemplated by the Fifth Amendment. Therefore, Miranda warnings are not required even though an individual is in custody and is the subject of interrogation, and suppression of the statements for failure to provide a warning is not warranted.

SJOP - Predicate Offenses - Minnesota Adjudication

State v. David L.W., No. 97-0606 (filed 9 Sept. 1997) (ordered published 28 Oct. 1997)

The court of appeals, in a decision written by Judge Hoover, reversed a dispositional order that placed David in the Serious Juvenile Offender Program (SJOP) under section 938.34(4h) of the Wisconsin Statutes. Minnesota and Wisconsin charged David with various offenses. David admitted to an amended charge of battery in a Wisconsin case and also admitted to a first-degree aggravated robbery charge in Minnesota. In the Wisconsin proceeding, David objected to the admission or use of the Minnesota adjudication under Wisconsin's SJOP. The trial judge overruled the objection.

The court of appeals agreed with David's argument. Penal statutes, including the SJOP, must be strictly construed in favor of the defendant. Section 938.34(4h) clearly and unambiguously enumerates a list of predicate offenses that justify SJOP status, but offenses from other jurisdictions (that is, Minnesota) are not included. The court declined to adopt a construction that embraces a "substantially similar foreign offense." Moreover, the court was troubled by the apparent dissimilarities between Wisconsin's and Minnesota's robbery statutes.

Sexually violent persons

Probable Cause Hearing - Annual Reviews

State v. Paulick, No. 96-3410 (filed 24 Sept. 1997) (ordered published 28 Oct. 1997)

Paulick was convicted in 1989 for sexually assaulting children and had his parole revoked in 1992 for having contact with minors. Prior to his release, the state alleged that he was a sexually violent person under chapter 980 of the Wisconsin Statutes, a jury agreed, and Paulick was committed to a secure facility. A doctor filed a six-month examination report and the court held a "probable cause hearing" because Paulick did not sign the waiver of rights. Although Paulick was not allowed to attend the proceeding, his lawyer appeared. Based upon the doctor's report, the judge found that there were no facts warranting a hearing on whether Paulick was still a sexually violent person.

The court of appeals, in a decision written by Judge Anderson, affirmed. In a careful statutory analysis of chapter 980, the court held "that sec. 980.09(2)(a), Stats., does not contemplate an evidentiary probable cause hearing like that provided in sec. 980.09(2)(b). Rather, the probable cause hearing is a paper review of the reexamination report(s) with argument that provides an opportunity for the committing court to weed out frivolous petitions by committed persons alleging that they are no longer dangerous and are fit for release. This gatekeeping function promotes the effective management of limited judicial resources while simultaneously protecting the rights of the committed person."

Torts

Contributory Negligence - Spectators - Hockey Game Injury

Moulas v. PBC Productions Inc., No. 96-1784 (filed 23 Sept. 1997) (ordered published 28 Oct. 1997)

The adult plaintiff was struck in the face with a hockey puck while watching an Admirals hockey game at Milwaukee's Bradley Center. The rink was enclosed by a clear plastic shield that was eight feet high in the area where the plaintiff sat. The plaintiff alleged negligence and a violation of the Safe Place Statute. The trial judge granted summary judgment to the defendants and dismissed the claim.

The court of appeals, in a decision written by Judge Wedemeyer, affirmed. The program booklet warned fans to keep their eye on the puck at all times. Disclaimer language on the back of each ticket warned ticketholders that they assumed the risk of injury. Examining the summary judgment record, the court found no material issue of fact on the issue of whether the defendants breached the standard of care. Moreover, the "baseball rule" established as a matter of law that the plaintiff's contributory negligence exceeded that of the defendants (if any). Knowing the risks, plaintiff voluntarily attended the game. The program and the ticket's disclaimer underscored the risks and warned her that she, like all spectators, assumed them.

Judge Fine dissented on the ground that defendants had not met the burden of demonstrating that the baseball rule applied to them.

Worker's Compensation

Traveling Employees - Recreational Activity - Coverage

CBS Inc. v. LIRC, No. 96-3707 (filed 10 Sept. 1997) (ordered published 28 Oct. 1997)

CBS Inc. hired Kamps to be "runner" during the 1994 Winter Olympics in Norway. The employment required that he work and travel in Norway for about three weeks. Kamps injured himself while skiing with fellow employees of CBS, which had supplied the group with free passes, transportation and required that the employees remain "on call" during this time. CBS argued that it was not responsible for Kamps' injury because it occurred on his off day and while he was engaged in personal recreation. An administrative law judge agreed with CBS, ruling that Kamps was not entitled to worker's compensation because he deviated from his employment. See Wis. Stat. 102.03(1)(f). Kamps appealed and LIRC reversed, reasoning that "Kamps was working in a location where skiing was a reasonable form of recreation incidental to living." The circuit court affirmed.

The court of appeals, in a decision written by Judge Brown, also affirmed and underscored that "traveling employees may participate in reasonable recreational activities without deviating from their employment" under the Worker's Compensation Act. The court rejected the contention that traveling employees are restricted to "eating, sleeping, and sightseeing." Recreation is a "usual and proper" activity. The "key" to determining what constitutes "reasonable recreation" is the "nature of the trip," including location. Downhill skiing in Norway during the Winter Olympics was a reasonable form of recreation.

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.