Supreme Court Digest

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

This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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.

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Appellate procedure

Denial of Claims of Qualified Immunity by State Officials - Interlocutory Review Mandatory

Arneson v. Jezwinski, Nos. 95-1592-LV and 95-2l50 (filed 20 Dec. 1996)

This case was before the supreme court on certification from the court of appeals. The sole issue on certification was under what circumstances the court of appeals should grant a petition for interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity in a 42 U.S.C. section 1983 action. (In this case the denial occurred in response to the defendants' motion for summary judgment which, as the court has previously held, is the appropriate stage in the proceedings for addressing and resolving issues of qualified immunity.)

Pursuant to its constitutional superintending power over lower state courts, the supreme court directed the court of appeals to grant every petition for interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity, so long as the circuit court order is based upon an issue of law, such as whether the federal right allegedly violated was clearly established at the time the action was taken. (The defendant must of course initiate the appeal within the time specified in section 808.04 of the Wisconsin Statutes.) The court of appeals should grant such petitions as a matter of course because they will always fall within the criteria for granting interlocutory appeals specified in section 808.03(2)(a) and (b) of the Wisconsin Statutes.

Said the supreme court, when the court of appeals denies a petition for interlocutory appeal of a denial of qualified immunity, a state official is left with no other adequate remedy. Although the official could raise qualified immunity on appeal after the circuit court enters a final order, this is not a sufficient remedy because the official will lose the primary benefit of qualified immunity if the case wrongly proceeds.

Chief Justice Abrahamson did not participate in this decision.

Civil procedure

Jurisdiction - Authenticated Summons - Publication - No Prejudice

Burnett v. Hill, No. 94-2011 (filed 24 Jan. 1997)

The circuit court dismissed Burnett's claim against Hill for lack of personal jurisdiction. The court of appeals affirmed, ruling that Burnett's failure to authenticate the summons served by publication was a fundamental error that deprived the trial court of personal jurisdiction.

The supreme court, in an opinion written by Justice Geske, reversed the court of appeals. Burnett had mailed an unauthenticated copy of the publication summons and authenticated copies of the original summons and complaint to Hill's last known address and business address by certified and first class mail. The typed copy of the publication summons did not contain the case number assigned by the court clerk. Hill did, however, acknowledge receipt of those documents by signature.

The sole issue was whether Burnett "effectively served Hill by successfully mailing an unauthenticated publication summons together with authenticated copies of the original summons and complaint." Unquestionably, the failure to authenticate the summons constituted a defect in service. The only question was whether it was a fundamental error or a technical error under American Family Mut. Ins. Co. v. Royal Ins. Co. of America, 167 Wis. 2d 524 (1992), and later cases. The court held that the mailing of the unauthenticated copy of the publication summons along with authenticated copies of the original summons and complaint fulfilled the purpose of sections 801.02(3)(a) and 801.11(1)(c) of the Wisconsin Statutes even though the procedure was not in strict compliance with those statutes. Thus, the error was "technical." The court further held that as a matter of law Hill was not prejudiced by Burnett's error. Three of the four documents served on Hill contained the case number designated by the clerk of court. All four informed Hill of Burnett's action against him and that a response was necessary.

In closing, the supreme court warned lawyers that "slipshod and haphazard attempts to serve" parties are not sufficient. The court urged lawyers to strictly comply with statutory procedures.

Constitutional law

Wisconsin Retirement System - Special Investment Performance Dividend Legislation - Unconstitutional Taking - Attorney Fees - "Common Fund" Doctrine

Wisconsin Retired Teachers Association Inc. v. Employee Trust Funds Board, No. 94-0712 (filed 17 Jan. 1997)

The plaintiffs in this case were the State Engineering Association, the Wisconsin Retired Teachers Association and the Wisconsin Education Association Council. In their class action the plaintiffs challenged the constitutionality of legislation (1987 Wis. Act 27, sections 436m, 684r and 688km) concerning the Wisconsin Retirement System (WRS), which is the retirement system for public employees. Under this legislation, earnings on the WRS trust fund assets of certain annuitants are used to pay supplemental benefits that are not a commitment of the WRS trust fund. Only annuitants who retired before Oct. 1, 1974, receive the supplemental benefits. The purpose of the legislation was to reduce funding of the supplemental benefits from the state's general purpose revenue.

In a unanimous decision authored by Justice Bradley, the supreme court concluded that the provisions of Act 27 cited above and its implementation constitute a taking of the plaintiffs' property without just compensation, in violation of Article I, section 13 of the Wisconsin Constitution. Accordingly, the court ordered the secretary of the Wisconsin Department of Administration and the state treasurer to replenish the Wisconsin Retirement System fixed annuity reserve in an amount equal to all funds paid out of the account pursuant to Act 27, plus interest at the effective rate.

Among other things the court also determined that the plaintiffs were entitled to reasonable attorney fees to be paid out of the recovery under the "common fund" doctrine. Wisconsin ordinarily adheres to the "American Rule" requiring litigants to pay their own attorney fees. Generally, a court may require a losing litigant to reimburse the prevailing party's attorney fees only when expressly authorized by statute or contract. The court noted that it had not previously adopted the common fund doctrine in Wisconsin, though it noted that the doctrine has been widely used elsewhere to deal with the "free rider" problem inherent in class actions. The court concluded that the common fund doctrine was applied appropriately in this case. By recovering funds paid from the annuity reserve under Act 27, the attorneys for the plaintiffs were vindicating the property rights of all annuitants, not just those of the members of the three plaintiff groups.

Governor's Veto Power - Monetary Figures
- Appropriation Amounts

Risser v. Klauser, No. 96-0042-OA (filed 31 Jan. 1997)

This was an original action brought by several state legislators and a taxpayer. They sought a declaration that the Governor's write-in veto of a monetary figure in section 57 of 1995 Assembly Bill 557, an omnibus bill setting forth the transportation budget, exceeded his constitutional authority.

The supreme court, in an opinion written by Chief Justice Abrahamson, declared that the "governor's write-in veto may be exercised only on a monetary figure in an appropriation amount and that the monetary figure in the second sentence of section 57 of 1995 A.B. 557 is not an appropriation amount." The court declined to abandon its longstanding bright-line rule because the rule "affords the Legislature and the governor the ability to predict the consequences of their actions and to guide their conduct accordingly without the intercession of the judicial branch. ... The large volume of veto litigation is not a sign of a healthy discourse on state constitutional law."

Justice Crooks, joined by Justices Steinmetz and Wilcox, dissented.

Contempt

Remedial Contempt Motions Brought by Government - Right to Counsel

State v. Pultz, No. 94-2806 (filed 20 Dec. 1996)

The primary issue in this case was the constitutional due process right to appointed counsel for an indigent defendant in a remedial contempt action brought by the government. A unanimous supreme court, in a decision authored by Justice Geske, held that the defendant has a due process right to appointed counsel at public expense in this type of proceeding if he or she is unable to afford counsel.

To assure that the defendant who faces a threat to liberty at a contempt hearing is properly advised of the right to appointed counsel if he or she is found indigent, the circuit court must take the initiative. It must engage in a colloquy that clearly conveys the existence of this right to the defendant. Further, the court must inquire whether the defendant believes that he or she is indigent.

Before the court proceeds on a contempt motion, it should advise a pro se defendant that, if he or she is found to be in contempt, the court could impose sanctions that may include the defendant having to spend time in jail. The court also must instruct that the defendant is entitled to be represented by an attorney. If the defendant wants an attorney but is financially unable to pay for a lawyer, the court must advise the defendant that an attorney will be appointed at public expense. (If the defendant states that he or she cannot afford counsel, a determination of indigency must be undertaken.) The circuit court must be satisfied that the defendant understands these rights and must make the necessary findings based upon the defendant's answers and any other evidence the court receives. If the defendant wants to obtain counsel, the court should give him or her a reasonable time either to retain counsel or, if indigent, to receive appointed counsel before proceeding on the contempt motion.

Criminal law

Sexual Assault - Insufficient Evidence -
Jury Instructions - "Sexual Intercourse"

State v. Wulff,  No. 95-1732-CR (filed 30 Jan. 1997)

The defendant was convicted of attempted second-degree sexual assault. The victim was an acquaintance whom Wulff agreed to walk home. According to the victim, when they returned to her apartment she rebuffed his advances but allowed him to sleep the night on her living room couch. She fell asleep in her own bedroom, partially clothed. The victim testified that when she awoke she was completely naked and the defendant was sitting on top of her. She screamed as the defendant attempted to place his penis in her mouth. The defendant left her, saying, "Nothing happened, don't worry." The defendant testified to a very different version of events. He said, in effect, that after returning to the apartment the victim passed out, that he later awakened her to say goodbye, and that she became disoriented and confused because she was intoxicated.

The state charged Wulff with attempting to have sexual intercourse with the victim while she was unconscious. The jury instructions, however, did not recite the complete definition of "sexual intercourse" in section 940.225(5)(c) of the Wisconsin Statutes, defining it only as "any intrusion, however slight, by any part of a person's body or of any object, into the genital or anal opening of another."

The supreme court, in an opinion written by Justice Steinmetz, reversed the conviction because there was insufficient evidence to support the charge described in the instructions. Double jeopardy precludes any retrial. In closing argument the prosecutor advanced three theories: Attempted sexual contact, attempted sexual intercourse by vulvar penetration, and attempted sexual intercourse by fellatio. The judge's instructions, however, described "a single version of sexual intercourse - genital or anal intrusion." The court's review of the record revealed that the state had failed to introduce sufficient evidence of attempted genital or anal intercourse. The failure to instruct on fellatio meant that the jury could not legally base its guilty verdict upon that theory of liability

Criminal procedure

Competency to Stand Trial - Burden of Proof -
Standard of Review

State v. Garfoot, No. 94-1817-CR (filed 4 Feb. 1997)

Garfoot was charged with attempted sexual assault. At the request of Garfoot's lawyer, the judge ordered a competency examination pursuant to section 971.14 of the Wisconsin Statutes. An expert examined Garfoot and concluded that he "would not ever be able to participate meaningfully in a criminal trial because of his developmental disability." Garfoot could recall facts but could not relate them to the legal proceedings in a way that could assist his attorney. Garfoot also was "unable to make informed decisions, could not grasp the implications of a decision whether or not to testify, and would not be able to communicate with his attorney about testimony that may be inaccurate." The state's appointed expert testified Garfoot was "marginally competent" to stand trial. The judge decided that the state failed to meet its burden of proving by the greater weight of the credible evidence that Garfoot was competent to stand trial. At a later hearing, the judge dismissed the criminal complaint because it was unlikely that Garfoot would regain competency within the statutory time period.

The court of appeals reversed. It applied a de novo standard of review that considered, among other things, "Garfoot's abilities with reference to the trial likely to take place" and the court's power to modify the proceedings to assist Garfoot.

The supreme court, in an opinion written by Justice Steinmetz, reversed the court of appeals. A reviewing court must apply a "clearly erroneous" standard of review because the trial court is in the best position to weigh all the evidence necessary to make a competency determination. Only the trial judge, for example, can view the defendant's behavior and demeanor in the courtroom. Moreover, the trial judge is in a far better position to evaluate witnesses' credibility. The court applied the clearly erroneous standard to the evidence contained in the record.

Wisconsin adheres to the two-part "Dusky-standard": A person may not stand trial unless he or she has the capacity to understand the nature and object of the proceedings against him or her, to consult with counsel, and to assist in preparing his or her own defense." Mental retardation alone can render a defendant incompetent "if the condition is so severe as to render him incapable of functioning in critical areas." The trial judge's decision was not clearly erroneous on this record.

Chief Justice Abrahamson, joined by Justices Geske and Bradley, concurred but disagreed with the majority's statement of the standard of appellate review. The clear and convincing standard should be reserved for questions of "historical fact." The "ultimate finding of competency" involves more than historical facts. The competency determination presents a finding of constitutional fact much the same as the voluntariness of a confession. Appellate courts are entitled to make independent determination of constitutional facts.

Justice Bablitch joined the majority but filed a separate concurring opinion. He conceded that the Chief Justice presented a "fairly persuasive case" but declined to join it because the parties had failed to adequately brief the issue.

Drug Tax Stamp Law - Privilege Against Self-incrimination

State v. Hall,  No. 94-2848-CR (filed 24 Jan. 1997)

The supreme court, in an opinion written by Justice Bablitch, declared unconstitutional the drug tax stamp law ("the stamp law"), sections 139.87 through 139.96 of the Wisconsin Statutes (1991-92), because it violated the privilege against self-incrimination. The stamp law required "dealers" to purchase tax stamps and affix them to their illegal drugs. The case raised three issues.

First, section 139.89 compelled drug dealers to incriminate themselves under the test announced in Marchetti v. United States, 390 U.S. 39 (1968). The stamp law was directed at an area "permeated with criminal statutes" and at individuals "inherently suspect of criminal activities." The "affix and display" portion of the stamp law placed dealers under reasonable apprehension that they might be providing incriminating information to prosecutors. Affixing and displaying the stamp "is an incriminating testimonial communication that the dealer knowingly and intentionally possesses a particular quantity of unlawful drugs." Knowledge or belief that a substance is "controlled" constitutes an element of the crime that the state must prove. Finally, the incriminating information provided a significant link in a chain of evidence tending to establish guilt.

Second, the stamp law failed on its face to provide drug dealers with "protection as broad as the protection offered by the privilege against self-incrimination." Although the stamp law provided some protection, it failed to completely protect against "derivative" use of the incriminating information.

Third, the supreme court held that it could not "save" the unconstitutional statute by construing the stamp law to provide both direct and derivative use immunity. The Legislature had carefully drafted the stamp law in its present (unconstitutional) form. The court could not rewrite the stamp law under guise of construing it.

Justice Wilcox, joined by Justices Steinmetz and Crooks, dissented. The dissent argued that the majority misconstrued the legislative history of the stamp law and failed "in its duty to preserve the statute." Properly construed, the stamp law could be "saved" by providing protection coextensive with the Fifth Amendment privilege.

Based upon the holding in State v. Hall, the court summarily reversed and remanded two other related cases:

1) State v. Hicks, No. 94-2542-CR (filed 24 Jan. 1997) (which raised a standing issue that the court declined to reach); and

2) State v. Dowe, No. 95-0314-CR (filed 24 Jan. 1997) (raising a double jeopardy argument that the court declined to reach).

Municipal law

Master Plans - Official Maps

Lake City Corporation v. City of Mequon, No. 94-3240 (filed 30 Jan. 1997)

In 1977 Lake City Corporation purchased land in Mequon, Wis. Seven years later it petitioned Mequon to rezone the property to allow construction of numerous duplex structures and single family homes. The Mequon Common Council voted to rezone the property in substantially the manner requested.

In 1992 Mequon began the process of comprehensively revising its master plan and zoning ordinances due to growth in the city. As this was transpiring, developers began submitting plans for dormant projects to the Mequon Plan Commission in an attempt to gain approval before Mequon completed the revision of its master plan and zoning ordinances.

Lake City was one such developer. It had taken no affirmative steps to develop its property since 1984, when Mequon had rezoned it as requested. In 1993 it applied for preliminary plat approval but the matter was tabled until the Plan Commission considered a resolution proposing to amend Mequon's land use map, or comprehensive zoning plan, contained in Mequon's master plan. The amendment was approved by the Plan Commission, which then voted to deny Lake City's request for preliminary plat approval, because the proposed plat conflicted with the newly adopted amendment to the master plan.

Lake City commenced this action in circuit court pursuant to section 236.13 of the Wisconsin Statutes. Among its provisions this statute provides that "approval of the preliminary or final plat shall be conditioned upon compliance with ... any local master plan which is consistent with any ... official map adopted under s. 62.23." The circuit court concluded that the Plan Commission had authority to deny Lake City's application for plat approval based upon the newly enacted amendment to the master plan. The court of appeals reversed the circuit court holding that under the statute quoted above, a local master plan is consistent with an official map only to the extent the master plan reflects issues encompassed in the official map. The appellate court held that the Plan Commission improperly denied preliminary plat approval to Lake City on the grounds that the plat conflicted with an element contained only in the master plan.

A unanimous supreme court, in a decision authored by Justice Crooks, reversed the court of appeals. It concluded that, under the statute quoted above, a master plan is consistent with an official map if any common elements contained in both the master plan and official map are not contradictory. It further concluded that a master plan is consistent with an official map even if the master plan contains additional elements that the official map does not. Accordingly, it held that a city plan commission may rely upon an element contained solely in a master plan to reject plat approval.

Applying this holding to the present case, the supreme court concluded that the Plan Commission had the authority to deny approval of Lake City's proposed preliminary plat, because this plat conflicted with Mequon's newly revised master plan.

Remedies

Damages - Attorney Misconduct - Evidentiary Hearings

Chevron Chemical Co. v. Deloitte & Touche LLP, No. 94-2827 (filed 23 Jan. 1997)

The supreme court in Chevron Chemical Co. v. Deloitte & Touche, 176 Wis. 2d 935 (1993) (hereinafter, Chevron I), ordered a judgment against Deloitte because of attorney misconduct. The case was remanded for "a hearing on damages" which was "to be treated as it is in typical default judgment cases." On remand the parties fought over whether the trial judge had discretion regarding the form of the hearing or was obligated to conduct an evidentiary hearing - in effect, a bifurcated trial on damages. The trial court ruled that it had discretion to determine damages without an evidentiary hearing. The court of appeals reversed, concluding that a "typical default judgment case" necessitated an evidentiary hearing.

The supreme court, in an opinion written by Chief Justice Abrahamson, reversed the court of appeals. Neither the remand order in Chevron I nor the authority cited in that order mandated an evidentiary hearing. The order left to the circuit court's discretion the proper form of the damages hearing. The supreme court agreed with the trial judge that "the grant of a new evidentiary hearing would leave Chevron in position of Pyrrhus, whose victories over the Roman army were achieved at an excessive cost. Like Pyrrhus, Chevron would have cause to complain: 'One more such victory and I am lost.'"

Wisconsin Lawyer