Other Significant Decisions

Highlights of the 1996
Wisconsin Supreme Court
and Court of Appeals Decisions

By Daniel W. Hildebrand

Constitutional Law

Thompson v. Craney ¹ was an original action brought to determine the constitutionality of parts of 1995 Wis. Act 27, the budget bill, creating a State Education Commission (SEC), a State Department of Education (DOE) and the position of State Secretary of Education (SOE). The Wisconsin Supreme Court concluded that the Act unconstitutionally gives former powers of the elected State Superintendent of Public Instruction (SPI) to other appointed officers at the state level not subordinate to the SPI.

In holding the Act unconstitutional, the court discussed the history of ArticleX of the Wisconsin Constitution, which stated that the supervision of public instruction shall be vested in a state superintendent and such other officers as the Legislature shall direct. Parties offered differing interpretations of the words "supervision," "vested" and "other officers." Resorting to the history of ArticleX, Section1, the court concluded that the constitution's drafters intended that the public schools were to be under the supervision of the SPI and that the SPI was to be an elected, not appointed, public official. The position of the SPI was a necessary position, separate and distinct from the "other officers" referenced in ArticleX, Section1. These "other officers" were not intended to be co-equal to or supervisory over the SPI. Rather, these "other officers" would be local or clerical officials, subordinate to the SPI. The constitutional difficulty with 1995 Wis. Act 27 is that it gives the power of supervision of public education to an "other officer" instead of to the SPI.

In Joni B. v. State ² the supreme court considered another provision of 1995 Wis. Act 27, which provided that a trial court "may not appoint counsel for any party other than the child in a CHIPS proceeding."³ The court held that the prohibition violated Wisconsin's separation of powers doctrine and the due process clause of the Fourteenth Amendment.

Under the separation of powers doctrine, the executive, legislative and judicial branches are prohibited from intruding upon another's "core zone of exclusive authority." In those areas representing shared authority, the Legislature is prohibited from unreasonably burdening or substantially interfering with the judicial branch. Although the Legislature possesses power to budget state finances, the subject matter of the Legislature impermissibly intruded upon the court's powers. A flat prohibition on the appointment of counsel for anyone other than the child clearly intrudes upon judicial authority and unreasonably burdens and substantially interferes with the judicial branch's inherent power to appoint counsel to effect the efficient administration of justice. When a parent in a CHIPS proceeding obviously needs the assistance of counsel to ensure the integrity of that proceeding, the court cannot be legislatively denied the right to appoint counsel, thereby placing the individual judge in the untenable position of having to essentially serve as counsel for that parent. In such cases, appointment of counsel may be necessary in the interests of the court to require an orderly and fair presentation of a case.

The section also violated due process. A parent's interest in the companionship, care, custody and management of his or her children is an important interest that warrants protection. The right to raise one's children is an essential right. Although a CHIPS proceeding would not necessarily result in the permanent severance of parental rights, the interest of a parent who may be affected by a CHIPS hearing are far from minimal. CHIPS proceedings can result in placement of children in foster care for extended periods, and that may form a legal reason for later termination of parental rights. Fundamental fairness requires that a circuit judge be given the discretion to determine what due process requires on a case-by-case basis.

Judicial Disqualification

In State v. Harrell ⁴ the supreme court held that a circuit court judge, whose spouse is an assistant district attorney in the same county, is not required to disqualify himself or herself from criminal cases under statutes prohibiting a judge from hearing a case when a close relative is counsel for either party or when the judge determines that he or she cannot act in an impartial manner. ⁵ In this case, the judge's wife was an assistant district attorney but had no involvement in the criminal case pending before the judge.

The court interpreted the word "counsel" to apply to government attorneys only as to the attorney of record and any other attorneys who appear or participate in the case. It did not include a government attorney who happens to be employed in the same county office or governmental department. The special characteristics of government attorneys make it unlikely that the judge's relationship with an uninvolved attorney would affect impartiality. The prosecutor has no financial interest in the outcome of the case. The reputational interest without the financial interest is not enough to create even the appearance of partiality. Since the assistant district attorney neither appeared nor involved herself in the preparation of the case, the judge was not required to disqualify himself. Furthermore, the judge clearly made a subjective determination regarding his ability to proceed with impartiality. Under a prior decision, ⁶ the court had adopted a subjective standard for determining whether to disqualify for appearance purposes.

Torts

In Gould v. American Family Mut. Ins. Co. ⁷ the supreme court considered the issue of liability of an institutionalized person who was suffering from Alzheimer's disease. The case arose out of an injury sustained by a worker at the institution.

Reviewing prior case law, the court affirmed the rule that mentally disabled adults are held responsible for the torts they commit regardless of their capacity to comprehend their actions. Despite their disability, they are held to an objective reasonable person standard. Adoption of a different rule would make it very difficult to draw any satisfactory line between mental deficiency and those variations of temperament, intellect and emotional balance which cannot, as a practical matter, be taken into account in imposing liability for damages.

Even though the jury determined that the defendant was causally negligent, the court denied recovery because allowing recovery would place an unreasonable burden on the negligent tortfeasor. When a mentally disabled person injures an employed caretaker, the injured party can reasonably foresee the danger and is not innocent of the risk involved. By placing a mentally disabled person in an institution, those interested in that person's estate are not likely to be in need of an inducement for greater restraint.

Kleinke v. Farmers Coop. Supply & Shipping ⁸ arose out of the removal of a fuel oil tank from plaintiffs' basement and the subsequent pumping of 300 gallons of fuel oil directly into the basement. In addition to suffering property damage, the plaintiffs allegedly suffered severe emotional distress and depression from being forced to abandon their home of more than 42 years.

The supreme court upheld the dismissal of plaintiffs' claim for negligent infliction of emotional distress on public policy grounds. Emotional distress based solely upon property damage is the type of injury that usually will be wholly out of proportion to the culpability of the negligent party. Allowing recovery would place an unreasonable burden on the negligent actors in property damage cases. These persons already are liable for the cost of the damage to the property. Also, allowing recovery in such cases creates the possibility of future fraudulent claims. The greater a plaintiff's attachment or sentimental feeling towards the property in question, the greater his or her claim for damages could be. Finally, allowing recovery in such cases would remove any logical stopping point to a tortfeasor's liability.

Insurance

In DeChant v. Monarch Life Ins. Co. ⁹ the supreme court held that attorney fees and bond premiums incurred by a plaintiff in prosecuting a breach of contract and insurance bad faith action constituted compensable damages for bad faith arising out of the insurer's denial of a disability claim. The court based its decision upon the tort of first-party bad faith. If an insurer fails to deal in good faith with its insured by refusing, without proper cause, to compensate an insured for a loss covered by the policy, such conduct gives rise to a claim in tort for bad faith. If an insurer breaches a duty created by an insurance contract, the insured will incur economic harm when it becomes necessary to bring an action against the insurer.

The insurer's bad faith forced the insured to retain an attorney to litigate his rights to policy benefits. The fees incurred for that service were expended to obtain benefits that were wrongfully withheld in bad faith. The fact that the fees claimed as damages were incurred in the very lawsuit from which recovery was sought does not violate the general requirement that parties bear their own costs of legal representation. Unless an insured is able to recover fees and other damages in such a situation, the bad faith denial of policy benefits will expose him or her to numerous uncompensable harms.

Open Records

In Woznicki v. Erickson ¹⁰ the district attorney conducted a criminal investigation pursuant to which he acquired Woznicki's complete personnel file from his employer and personal telephone records. Upon the conclusion of the investigation, the district attorney concluded that such records were "public records" and determined to release those records to the public. Woznicki brought this action to prevent their release.

The supreme court concluded that the broad definition of public record defines a record as any material on which information is recorded or preserved or created or is being kept by an authority. ¹¹ However, reputational and privacy interests that are inherent in such records mean that special public policy questions are raised when a district attorney chooses to release materials gathered during the course of a criminal investigation. Therefore, the district attorney's decision to release these records is subject to de novo review by the circuit court. Although the open records law does not explicitly provide a remedy for an individual whose records have been acquired by the district attorney during the course of an investigation, a review of the statutes and case law provides an implicit remedy to prevent the release of those records to protect privacy and reputations of ordinary citizens.¹² Absent judicial review, plaintiff's interests in privacy and reputation would be meaningless.

In this case, the plaintiff has a unique and significant interest in attempting to persuade a court that his personnel and telephone records should remain closed. The district attorney, as the secondary custodian of these records, might well have not considered all of the competing public interests that must be considered prior to the release of those records. Courts repeatedly have held that the balancing of the public interests for and against disclosure present questions of law that can be reviewed by a court. Therefore, a district attorney cannot release these kinds of records without first notifying the individual involved and allowing a reasonable amount of time for the individual to appeal that decision to the circuit court. In a concurring opinion, Justice Bablitch accused the dissenters of engaging in a cold legal analysis that does not touch real life. Privacy and reputation are precious commodities.

Justices Abrahamson and Bradley dissented arguing that precedent was overturned by allowing a noncustodian of records the power to determine whether public records should be closed. They accused the majority of contravening the language, spirit and purpose of the open records law that explicitly states that requesters have the right to inspect all public records. The majority's broad and undefined invocation of privacy and reputational interests could foreshadow a dramatic erosion of the open records law. Finally, there might well be administrative difficulties. Although privacy and reputational interests are important, the majority's decision neglects another core value and that is insuring that the government is open and accountable to the people it serves.

Family Law

In In re Marriage of Joshua K. v. Nancy K.¹³ the Wisconsin Court of Appeals held that a minor was not entitled under section803.09(1) of the Wisconsin Statutes to intervene with independent counsel in a post-divorce custody dispute in which he alleged that his rights and well-being are at risk and where his guardian ad litem advocates a result opposed to his own request. In upholding the denial of the minor's motion, the court held that section767.045(4) of the Wisconsin Statutes fulfills the child's right to be heard upon the issue of custody and physical placement. The guardian ad litem fulfills the entitlement of a child to representation in a divorce proceeding. The court's cryptic opinion did not explain why a guardian ad litem who represents the concept of the child's best interests was an adequate substitute for counsel who would advocate the child's interest nor did the court explain why the minor, as a party, was not entitled under section803.09(1) to intervene with independent counsel before the circuit court in a post-divorce custody dispute.

Municipal Law

In DeRosso Landfill Co. v. City of Oak Creek ¹⁴ the supreme court held that a solid waste facility exempt from regulation under section144.44(7)(g) of the Wisconsin Statutes need not comply with a preexisting municipal ordinance prohibiting that facility from being opened. The plaintiffs had negotiated with the DNR which had approved filling the site with clean fill. However, the city, having environmental concerns, had ordered that the site could not be filled with clean fill.

The court held that the city's ordinance was preempted. Even though the city's local interests and concerns with the protection of its residents was important, the court concluded that the Legislature has expressly withdrawn the power of municipalities to act because the legislation provided that certain facilities may be exempted from local approval. When the DNR held pursuant to its regulations that the site was exempt, this did not restore the city's preexisting authority to regulate. Furthermore, the DNR order approving the establishment of a clean fill facility contains provisions regarding how that facility is to be constructed and operated. It was the DNR's responsibility to ensure that the facility does not compromise the integrity of the environment or the health of the city's residents. The city's ordinance defeated the purpose of the state legislation and violated the spirit of the Legislature's complex and comprehensive and statutory structure regulating waste.

Criminal Law

In State v. Lindsey ¹⁵ the appeals court upheld the constitutionality of section 939.62(2m)(b) of the Wisconsin Statutes, Wisconsin's "three-strikes" law mandating life imprisonment without parole for third-time serious felony offenders. Lindsey was convicted of second-degree sexual assault of a child as a persistent repeater. His two prior strikes were a 1981 conviction for armed robbery and a 1987 conviction for two counts of sexual intercourse with a child. The court held that the sentence did not constitute cruel and unusual punishment. The inherent gravity of the offense and harshness of the penalty do not raise the inference of gross disproportionality. Nor did the legislation violate the separation of powers doctrine. The Legislature has the power to prescribe sentences, and there is no inherent power of the judiciary to absolutely determine the nature of the punishment. There was no denial of equal protection because statutes imposing a more severe punishment for a second or subsequent offense invariably have held not to constitute a denial of equal protection of the laws.

In State v. Harris¹⁶ the supreme court held that passengers have standing to challenge the illegal search of a vehicle. In this case, a vehicle was parked in front of the home of a robbery suspect who did not own a car. There was no testimony that the driver of the vehicle violated any traffic laws or handled the car in an erratic fashion. When the car pulled away from the curb, plainclothes officers stopped its travel by blocking the car with their unmarked vehicle. The driver and the passengers were arrested. Harris, a passenger, was found to be in possession of marijuana.

Daniel W. Hildebrand is a member of DeWitt, Ross & Stevens S.C., Madison. He is a former president of the Dane County Bar Association and of the State Bar of Wisconsin.

The court held that Harris had standing to contest the search. After considering other authority, the court adopted a bright-line rule that passengers detained in the course of a search of an automobile are subject to a "seizure" which triggers Fourth Amendment protections. Both the Fourth Amendment and ArticleI, Section11 of the Wisconsin Constitution guarantee the right of the people to be secure in their person. There is no exception dependent upon the location of the persons seized. Restriction upon a freedom of movement amounts to a seizure. It is important to adopt a bright-line rule to avoid the necessity of considering whether the officer's conduct was not so intimidating that a reasonable person in the defendant's position would have believed that his or her freedom of movement had been restricted in any meaningful way. The court concluded that the seizure was not reasonable.

Endnotes

¹ 199 Wis. 2d 674, 546 N.W.2d 123 (1996).

² 202 Wis. 2d 1, 549 N.W.2d 411 (1996).

³ Wis. Stat. section 48.13 delineates the court's jurisdiction over children alleged to be in need of protection or services, known as CHIPS actions.

⁴ 199 Wis. 2d 654, 546 N.W.2d 115 (1996).

⁵ Wis. Stat. §§ 757.19(2)(a) and (g).

⁶ State v. American TV & Appliance, 151 Wis. 2d 175, 443 N.W.2d 662 (1989).

⁷ 198 Wis. 2d 450, 543 N.W.2d 282 (1996).

⁸ 202 Wis. 2d 138, 549 N.W.2d 714 (1996).

⁹ 200 Wis. 2d 559, 547 N.W.2d 592 (1996).

¹⁰ 202 Wis. 2d 178, 549 N.W.2d 699 (1996).

¹¹ Wis. Stat. §§ 19.32(1) and (2).

¹² See, e.g., Wis. Stat. §§ 895.50 and 19.85(1). See also Armada Broadcasting Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357 (1994).

¹³ 201 Wis. 2d 655, 549 N.W.2d 494 (Ct. App. 1996).

¹⁴ 200 Wis. 2d 642, 547 N.W.2d 770 (1996).

¹⁵ 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996).

¹⁶ 206 Wis. 2d 242, 557 N.W.2d 245 (1996).