Supreme Court Digest

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

Contents

| Appellate Procedure | Constitutional Law | Criminal Procedure |
| Employee Benefits | Guardians | Municipal Law |
| Property | Torts |

Appellate procedure

Timeliness -Extensions -Jurisdiction

Edland v. Wis. Physicians Service Ins. Corp., No. 96-1883 (filed 12 June 1997)

On Oct. 9, 1995, a circuit court judge entered a memorandum decision and order that addressed the substantive issues in the case. The court did not, however, mail the order to the parties' lawyers, who did not learn of it until after the 90-day statutory time limit for appeal had passed. The judge accepted a stipulation that vacated and reinstated the order to allow for a timely appeal. The court of appeals sua sponte raised the question of jurisdiction and certified the issue to the supreme court.

The supreme court, in an opinion written by Justice Bradley, affirmed. The court framed the issue as follows: "If the record demonstrates that the circuit court intended to send notice of an order to the parties, and the court subsequently acknowledges its failure to carry out its earlier expressed intention, may the court effectively extend the time to appeal by vacating and reinstating its unnoticed order under sec. 806.07(1)(a)?" Case law establishes no "blanket proscription against vacating and reentering an order or judgment." In this case, a "compelling equitable consideration" outweighed the goal of finality and permitted the appeal. The court cautioned that "a circuit court has no authority to vacate and reenter an order or judgment when its sole basis for doing so is the unadorned desire to allow an appeal."

Constitutional law

First Amendment -Public Figure Defamation Actions Against Media Defendants - Actual Malice - Summary Judgment

Torgerson v. Journal/Sentinel Inc., Nos. 95-1098 and 95-1857 (filed 11 June 1997)

The plaintiff served as Wisconsin's Deputy Commissioner of Insurance in 1991-92 and then as Acting Commissioner through March 1993. While serving in the Office of Commissioner of Insurance, the plaintiff simultaneously held a 50 percent ownership interest in and was secretary-treasurer of a title insurance agency regulated by the OCI.

The media defendant published an article discussing the plaintiff's concurrent business and government positions and Wisconsin Ethics Board letters regarding his situation. The plaintiff wrote to the newspaper claiming that the article was false and defamatory and asked the newspaper to print a retraction, which the paper did not do. The evidence showed that the reporter who wrote the article, after learning of the possibility of a defamation action, nonetheless destroyed documents relating to his investigation of the plaintiff and the title insurance industry, including his notes from interviews with the author of the Ethics Board correspondence.

The plaintiff subsequently filed a defamation action. On appeal the sole issue was whether the plaintiff's action should have survived the newspaper's motion for summary judgment.

In a unanimous decision authored by Chief Justice Abrahamson, the court commenced its analysis by noting that the elements of a defamation action brought by a public figure against a media defendant are: 1) a false statement; 2) communicated by speech, conduct or in writing to a person other than the person defamed; and 3) the communication is unprivileged and tends to harm one's reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. If the challenge statements as a whole are not capable of a false and defamatory meaning, or are substantially true, a liable action will fail.

In this case the parties' disagreement focused on the issue of falsity, which is related to the question of actual malice. Where the defamation plaintiff is a public figure, the First and Fourteenth Amendments to the U.S. Constitution mandate that the plaintiff prove actual malice by clear and convincing evidence. The First Amendment imposes a constitutional privilege on the publication of statements about public figures, even when those statements are false and defamatory. The privilege, however, is conditional, and the condition is the absence of actual malice. The requirement that actual malice be proven is a minimal accommodation of the reputational interests of public figures and the community's interest in unfettered public debate. Proof of actual malice requires a showing that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for its truth.

With regard to the standard of appellate review and the appropriate summary judgment methodology in a public figure defamation action, the court concluded that summary judgment is an important and favored method for adjudicating public figure defamation actions. There remains, however, the question of whether and how the heightened evidentiary burden of proof of actual malice (proof by clear and convincing evidence) is to be incorporated in the summary judgment analysis. The court concluded that it did not need to decide whether the evidentiary burden for actual malice applies in the summary judgment analysis and, if so, whether it is mandated by the First Amendment or by Wisconsin's summary judgment law. The parties to this action agreed that to survive a motion for summary judgment a plaintiff in a public figure defamation action must present sufficient evidence for a court to conclude that a reasonable jury could find actual malice by clear and convincing evidence. For purposes of the review in this case and without deciding the correctness of the parties' position, the supreme court incorporated the clear and convincing evidentiary burden in its summary judgment methodology. It noted, however, that the outcome would not be different under a traditional summary judgment analysis.

Turning to the issue of actual malice, the court indicated that the plaintiff must present facts from which a reasonable jury could find, by clear and convincing evidence, that the newspaper published a false and defamatory statement with actual malice, that is, knowing the statement was false or made with reckless disregard for its truth. The test is subjective. The complainant must show that the media defendant knew the statement was false, in fact entertained serious doubts as to the truth of the publication, or had a high degree of awareness of probable falsity. The U.S. Supreme Court has held that a court cannot infer actual malice sufficient to raise a jury issue from the media defendant's deliberate choice of a rational interpretation of ambiguous materials. In this case the court found that statements at issue in the letters from the Ethics Board were ambiguous and that the newspaper article was a rational interpretation of those statements. Similarly, the article's characterization of the plaintiffs' statement in response thereto was likewise a rational interpretation of those comments.

The court observed that the plaintiff's most significant evidence to support an allegation of actual malice is the inference of knowing falsity that might be drawn from the reporter's intentional destruction of notes as described above, while he retained other materials relating to the investigation. The reporter testified on deposition that he had been assigned to a new office and his filing space was drastically reduced; thus he discarded dozens of files of notes, including those relating to the article at issue in this case, while retaining documents that would require expense to reacquire. The supreme court expressed its censure of the reporter's intentional destruction of materials potentially relevant to a threatened lawsuit. It agreed with the plaintiff that the destruction of notes ordinarily is sufficient evidence to support a jury verdict of actual malice and ordinarily will defeat a news media defendant's motion for summary judgment. Nevertheless, it concluded in this case that the inferences the plaintiff urges cannot reasonably be drawn by a factfinder because the notes were not relevant to show an inconsistency between what the author of the ethics opinions told the reporter and what the reporter actually reported.

Accordingly, the court concluded as a matter of law that the plaintiff did not furnish sufficient evidence of actual malice to survive the newspaper's motion for summary judgment.

Criminal procedure

Trials - "Frame-up" Defense - Third-party Defense - Relevance

State v. Richardson, No. 95-0501-CR (filed 17 June 1997)

The defendant was convicted for sexually assaulting a child and false imprisonment. The court of appeals reversed his conviction because the trial judge improperly excluded defense evidence of a "frame-up."

The supreme court, in an opinion written by Justice Wilcox, reversed the court of appeals. The first issue was whether this case was controlled by the "legitimate tendency" test set forth in State v. Denny, 120 Wis. 2d 614 (Ct. App. 1984). The supreme court refused to apply Denny because it involved a defense claim that someone else (a third party) committed the crime, not the defendant. (Nor did the supreme court endorse it as a correct statement of law controlling third-party defenses.) In this case, the defense argued only that the victim was lying in order to "frame" him. Although it refused to apply Denny, the supreme court also observed that "Wisconsin's rules of evidence ensure that a jury is not confused and that the attention of jurors is not diverted to collateral issues."

Addressing the particular facts of this case, the court concluded that the frame-up evidence was relevant within the meaning of sections 904.01 and 904.02 but that the judge properly excluded it under section 904.03.

Prison Disciplinary Proceedings - Notice

Bergmann v. McCaughtry, No. 95-2108 (filed 20 June 1997)

Department of Corrections staff at Waupun Correctional Institution alleged that the petitioner (an inmate of the institution) committed various conduct infractions. Although the department provided the inmate with a notice of his hearing rights as required by Wis. Admin. Code DOC 303.76, the issue on appeal was whether it also provided him with notice of the schedule for the hearing as required by Wis. Admin. Code DOC 303.81.

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court concluded that the administrative code provisions require that an inmate be given two written notices of a hearing to adjudicate an allegation of major conduct violations. In this case, though a notice under DOC 303.76 was provided, the department failed to furnish the second notice required by DOC 303.81. That being the case, the department's failure to comply with its own regulations providing a basic procedural right invalidates the proceedings conducted in the present case.

Probation Revocation Proceedings - Incompetent Defendants

State ex rel. Vanderbeke v. Endicott, No. 95-0907 (filed 11 June 1997)

Two questions were raised in this case: 1) Does a probationer have a due process right to a competency determination when at a probation revocation proceeding the administrative law judge (ALJ) has reason to doubt the probationer's competency?; and 2) If a probationer has a due process right to a competency determination during a probation revocation proceeding, what procedures are to be followed and what effect does a determination of incompetency have?

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court held that a probationer has a due process right to a competency determination when during the probation revocation proceeding the ALJ has reason to doubt the probationer's competency. Though the statutes do not provide for competency proceedings at a probation revocation proceeding, the court fashioned a competency procedure to comply with the requirements of due process. It concluded that when an ALJ has reason to doubt that a probationer is competent, a competency proceeding should be conducted by the circuit court in the county in which the probationer was sentenced and that the competency proceeding should adhere to Wis. Stat. sections 971.13 and 971.14 to the extent practicable. [NOTE: Sections 971.13 and 971.14 are the statutes governing competency determinations when there is reason to doubt a defendant's competency to proceed at trial, conviction or sentencing.]

With respect to procedures to be followed, the court indicated that, as a first step, the ALJ must determine whether there is reason to doubt the probationer's competency. Reason to doubt competency may arise at any time during a probation revocation proceeding and may be raised by the probationer, his or her attorney, the Department of Corrections or the ALJ. No formal motion is necessary.

If the ALJ determines that there is no reason to doubt the probationer's competency, the revocation proceeding may continue. If the ALJ determines that there is reason to doubt competency, the revocation proceeding and all applicable time limits are stayed and a competency proceeding held. The probationer should continue in physical custody (if he or she is in physical custody) to the extent consistent with Wis. Stat. section 971.14. Because an ALJ has no statutory power to conduct competency proceedings, the circuit court should handle them. The appropriate court ordinarily will be the circuit court in the county in which the probationer was sentenced.

To initiate the competency proceeding the ALJ shall promptly forward a written request for a competency determination to the appropriate circuit court, along with a copy of the papers on file in the revocation proceeding and the ALJ's written statement explaining the grounds for finding reason to doubt the probationer's competency.

The circuit court shall proceed to determine competency, adhering to sections 971.13 and 971.14 to the extent practicable. The court shall adapt section 971.14 to the extent practicable to fit a determination of competency to proceed with a probation revocation proceeding.

Motions to Suppress - Particularity - Waiver

State v. Caban, No. 94-1015-CR (filed 12 June 1997)

The defendant was present in another's residence when police executed a search warrant there. Neither he nor his vehicle was named in the search warrant. Police at the scene searched the defendant's vehicle and discovered marijuana. The defendant subsequently was charged with possessing a controlled substance with intent to deliver.

The defendant filed a pretrial motion to suppress the evidence found during the search of his vehicle. His written motion asserted a broad Fourth Amendment challenge to the automobile search, but the motion did not request suppression of the evidence on the ground that there was no probable cause for the search of his vehicle. At the suppression hearing defense counsel's questioning and argument did not pursue the issue of probable cause for the search and at various times attempted to prevent the prosecution from doing so by raising objections to questions from the state going to the issue of probable cause. The thrust of the defendant's questioning and argument was that the search of his vehicle was not incident to a lawful arrest nor was it within the scope of the search warrant being executed at the premises.

The circuit court denied the motion to suppress and the defendant pled guilty and was convicted. Before the court of appeals he argued for the first time that the officers lacked the requisite probable cause to search his vehicle and, accordingly, evidence of the marijuana seized during the search was inadmissible. The state argued that the defendant had waived his right to appeal the issue of probable cause by failing to raise it at the trial court level. The court of appeals considered the issue and reversed the conviction for want of probable cause to search.

The supreme court, in a majority decision authored by Justice Bablitch, reversed the court of appeals. Looking first to whether the defendant raised the probable cause issue in his written motion, the court noted that Wisconsin law requires movants to "state with particularity the grounds for the motion." See Wis. Stat. 971.30(2). The rationale underlying this particularity requirement is notice - notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Therefore, in order to raise the issue of probable cause in his written motion, the defendant was required to state with particularity, that is, specifically assert, that the police lacked probable cause to search his automobile. This he failed to do. Accordingly, the court concluded that his written motion failed to state the issue of probable cause with particularity as required by the statute cited above.

The court did not end its analysis with the written motion. The defendant did not waive the right to argue the issue of probable cause on appeal merely by failing to raise that specific issue in his written motion. In determining whether the issue was raised before the circuit court, the supreme court looked to both the motion and to the suppression hearing. As stated above, at no time during the suppression hearing did defense counsel raise the issue of probable cause to search the vehicle. The court concluded that, by his silence, both in his motion and at the suppression hearing, the defendant failed to raise the issue of probable cause to search the vehicle before the circuit court and therefore he waived his right to appeal that issue.

The court further concluded that justice did not warrant discretionary review of the issue of probable cause.

Chief Justice Abrahamson filed a dissenting opinion in which Justice Bradley joined.

Felony Prosecutions - Sentencing Defendant in Absentia Prohibited

State v. Koopmans, Nos. 94-2424, 94-3146 and 95-1402-CR (filed 13 June 1997)

Following a jury trial the defendant was convicted of intentional child abuse and reckless child abuse. The circuit court ordered that she remain free on bond and set a date for sentencing; the defendant did not appear and the sentencing was adjourned. The defendant also failed to appear on the adjourned date and testimony at that proceeding revealed that she had told her mother that she was planning to take her daughter and travel to Belize. The circuit court concluded that the defendant had voluntarily absented herself from the proceedings and it sentenced her in absentia.

The issue before the supreme court was whether a defendant may waive his or her statutory right pursuant to Wis. Stat. section 971.04(1) to be present at sentencing by knowingly and voluntarily being absent from the proceeding. In a unanimous decision authored by Justice Wilcox, the court held that a defendant in a felony prosecution may not waive his or her statutory right to be present even if the waiver is made knowingly and voluntarily. The statute cited above provides that the defendant shall be present at certain proceedings in his or her case, including "at the pronouncement of judgment and imposition of sentence." Considering the statute as a whole the court concluded that the Legislature intended the term "shall" in the statute to be mandatory. Thus, it ordered the circuit court's sentence in this case to be vacated and the case remanded for resentencing.

In its analysis the court observed that the statute cited above permits a defendant charged with a misdemeanor to be excused from attending any or all proceedings and to authorize an attorney to act on his or her behalf.

Jury Selection - Strikes for Cause - Peremptory Strikes - Fair Trial -Due Process

State v. Ramos, No. 94-3036-CR (filed 20 June 1997)

The defendant was convicted of first-degree intentional homicide for strangling a 2-year-old child. The court of appeals reversed the conviction and remanded for a new trial.

The supreme court, in an opinion written by Justice Steinmetz, affirmed. During jury selection a prospective juror announced that she could not be "fair" in judging this case. The judge rejected the defense's request that the juror be removed for cause. The defense was forced to use one of seven peremptories allotted by the statutes to remove this juror. The supreme court agreed that the juror should have been removed for cause after she stated she could not be fair and impartial. Moreover, the trial judge should have allowed the court reporter to read back the juror's responses as the defense requested.

Although there was little question that the judge had abused her discretion, the primary issue concerned whether the error justified a new trial. In this case the defendant did not argue that he was deprived of a fair and impartial jury. Rather, the court accepted the argument that due process was denied when the trial judge denied the defendant the statutory right to exercise all seven peremptory strikes in any way he saw fit. Thus, a reversal is required when the trial court erroneously refuses to dismiss a juror for cause, "even if the challenged juror does not participate in the final decision."

Chief Justice Abrahamson, joined by Justice Geske, concurred in the majority opinion but wrote separately to discuss the nature of peremptory strikes.

Justice Crooks, joined by Justice Bradley, dissented.

Sentence Modification -Misdemeanants - New Factors - Rehabilitation After Sentencing

State v. Kluck, Nos. 95-2238-CR, 95-2239-CR and 95-2240-CR (filed 6 June 1997)

The issue before the supreme court was whether a defendant's four months of sobriety while out on bail pending appeal of a misdemeanor conviction was a "new factor" authorizing the circuit court to modify the defendant's county jail sentence. In a unanimous decision authored by Justice Bablitch, the court concluded that it was not.

It is well-established that a circuit court has inherent power to modify a previously imposed sentence after the sentence has commenced. However, the court cannot modify a sentence on reflection alone or simply because it has thought the matter over and has second thoughts. The court must base its modification on a "new factor," which is a term referring to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.

In applying the new factor test, the supreme court has never expressly distinguished county jail sentences from prison sentences. In a series of cases involving prison sentences, appellate courts in Wisconsin have held repeatedly that rehabilitation is not a "new factor" for purposes of sentence modification. Rather, information concerning rehabilitation is more properly considered by the parole authorities.

The defendant argued that this rule cannot logically extend to county jail sentences, because jailed defendants have no recourse to the parole system or anything equivalent to it. However, the judge who sentences a defendant to the county jail does have the means to fashion a sentence that will consider a defendant's successful rehabilitation. One of these means is probation. If the court orders probation at sentencing, it has the authority to modify the terms and conditions of probation at any time. Probation modification provides the circuit court with a means of rewarding post-sentencing rehabilitation without modifying the sentence. Huber (work release) privileges are another means by which the circuit court can recognize rehabilitative progress. A defendant may petition the court for Huber privileges at sentencing or at any time thereafter. Finally, jailed defendants with good post-sentencing conduct are entitled to earn "good time" reductions for good behavior while serving their sentences. In sum, the Legislature has provided several means by which post-sentencing good conduct by defendants in county jails can be recognized and rewarded.

Employee benefits

Wisconsin Family and Medical Leave Act - Relationship to Section 301 of Federal Labor Management Relations Act - Family Leave

Miller Brewing Co. v. DILHR, Equal Rights Division, No. 94-1628 (filed 6 June 1997)

Miller Brewing Co. employs Kozera as a laboratory technician. She is a member of the laboratory technicians' bargaining unit. The terms and conditions of her employment are governed by a collective bargaining agreement (CBA) between the union and Miller.

On Feb. 9, 1990, Miller approved disability leave for Kozera during her pregnancy. Pursuant to the CBA, Kozera substituted her paid reserve sick leave for this disability leave. Miller expected Kozera to return to work on April 16, six weeks after the due date of her child. However, on March 12, 1990, Kozera verbally requested a six-week parental family leave under the Wisconsin Family and Medical Leave Act (FMLA) to begin on April 16. She further requested that, pursuant to the FMLA, she be allowed to substitute six weeks of paid reserve sick leave for the unpaid family leave.

Miller granted Kozera a six-week parental leave. However, the CBA provided that employees could substitute paid reserve sick leave only when they were in fact sick and submitted a doctor's note acceptable to Miller. Since Kozera was not sick, Miller denied her request to substitute her paid reserve sick leave for the six-week family leave.

The critical issue in the case was whether the plaintiff's claim under the FMLA was preempted by section 30l of the Federal Labor Management Relations Act (LRMA). The impact of a finding of preemption would be that the court would be required to apply federal law in adjudicating the claim.

In a unanimous decision authored by Justice Crooks, the supreme court concluded that the plaintiff's state law claim under the FMLA is not preempted by federal law. The U.S. Supreme Court has held that an application of state law is preempted by section 30l of the LMRA only if such application requires the interpretation of a collective bargaining agreement. A state law claim is "independent" if it does not require construing the collective bargaining agreement.

In this case the Wisconsin court concluded that interpretation of a disputed contract term or provision was not required to determine that the plaintiff had accrued paid leave at Miller that was definite and quantifiable. Pursuant to the collective bargaining agreement the plaintiff had accumulated paid sick leave. Interpretation of the bargaining agreement was not required for the court to determine that the paid leave had accrued to the plaintiff and was the type of leave available for substitution under the FMLA. Further, the plaintiff's right to substitute paid leave for unpaid family leave is a right created by the FMLA. The Wisconsin Legislature, by enacting the FMLA, has given workers such as the plaintiff the right to substitute accrued paid leave for unpaid family leave, even if the conditions of leave eligibility set forth in a collective bargaining agreement are not met. Accordingly, the court concluded that the plaintiff had established the elements of her claim under the FMLA and was entitled to substitute paid sick leave for unpaid family leave.

Worker's Compensation -Eligibility for Benefits - Employees Terminated for Misrepresentations of Medical Condition

Brakebush Brothers Inc. v. Labor and Industry Review Commission , No. 95-2586 (filed 12 June 1997)

Engel was an employee of Brakebush. He injured his back at work and was receiving temporary total disability benefits under the Worker's Compensation Act. While he was not working and receiving those benefits, Brakebush conducted a private investigation and discovered that Engel had been bow hunting and playing pool. Engel did not mention these activities to either his employer or his doctors. In fact, at the Department of Industry, Labor and Human Relations hearing in this case, the benefits manager for Brakebush testified that Engel had told her that he had been "staying at home and taking it easy."

Brakebush thereafter terminated Engel for gross misconduct in violation of company policy prohibiting misrepresentation of facts or giving false or misleading information regarding a work injury. The company challenged Engel's eligibility for worker's compensation benefits between the date of discharge and the end of his healing period five months later. It argued that an employee terminated for misrepresenting his or her physical abilities is not entitled to collect temporary disability benefits after being terminated.

As framed by the supreme court, the critical issue was whether an employee who is terminated for making misrepresentations relating to his or her physical activities is entitled to worker's compensation disability benefits for a concededly work-related injury. In a unanimous decision authored by Justice Bablitch, the court answered in the affirmative.

An injured employee who has been terminated nonetheless is entitled to disability benefits because the employee continues to be limited by the work-related injury. It is the injury, not the termination, that is the cause of the employee's economic loss. Accordingly, said the court, Engel's misrepresentations are of no moment unless they are relevant to the extent of his injury and the court concluded that in this case they were not.

Employees-at-will - Discharge - Public Policy Exception - Remedies for Wrongful Discharge

Kempfer v. Automated Finishing Inc., No. 95-0649 (filed 20 June 1997)

The plaintiff was hired by Automated Finishing Inc. (AFI) to perform molding work. Approximately five years later, his duties began to vary and AFI asked him to begin making deliveries with a flatbed truck that qualified as a "commercial motor vehicle" under the Wisconsin Motor Vehicle Code. He was cited by a state patrol officer for driving a commercial motor vehicle without a commercial driver's license. The plaintiff informed AFI about the problem, but the company continued to ask him to drive the truck even though he did not have the appropriate license. He refused to obey these orders and, on one such occasion, was suspended. When he returned from that suspension, he was fired. Though AFI contended that the plaintiff was released because of cost-cutting efforts to reduce the labor force, the jury concluded that the plaintiff was suspended and then fired for his refusal to operate the company truck without a commercial driver's license. It awarded back pay and benefits and future lost wages and benefits.

The case was before the Wisconsin Supreme Court on certification from the court of appeals. In a decision authored by Justice Wilcox, the court affirmed in part and reversed in part.

The plaintiff was an employee-at-will. Under the employee-at-will doctrine, an employer may discharge such an employee for good cause, for no cause or even for a cause that is morally wrong, without being thereby guilty of legal wrong. However, the Wisconsin Supreme Court has recognized a narrowly circumscribed "public policy exception" to this general rule. The exception provides that an employee may not be discharged for refusing a command to violate a fundamental and well-defined public policy that is evidenced by a constitutional, statutory or administrative provision.

In this case the court found that the plaintiff identified a fundamental and well-defined public policy (the advancement of highway safety by requiring operators of commercial vehicles to have a commercial driver's license) sufficient to invoke the public policy exception to the employee-at-will doctrine. The court further concluded that the plaintiff demonstrated that he was terminated for refusing to act contrary to this fundamental and well-defined public policy. In this case, commanding the plaintiff to drive the truck with full knowledge that he did not have the required license was tantamount to commanding him to violate public policy.

The last issue the court considered was whether the circuit judge erroneously exercised his discretion by allowing the jury to consider awarding damages for future wage loss. Case precedent establishes the proposition that reinstatement and back pay are the most appropriate remedies for a wrongfully discharged employee-at-will. Front pay is only available when there is no other avenue to make the employee whole. In other words, front pay is only an available remedy in those cases in which the employee has been discharged for refusing to violate a fundamental and well-defined public policy and reinstatement is not feasible.

Reinstatement is not feasible if the employee cannot be placed in the same or a similar position or if the company refuses to reinstate the employee. However, reinstatement is not infeasible simply because a plaintiff claims that he or she does not get along with the employer or because the plaintiff claims that he or she is not comfortable working for someone who previously terminated him or her. In those situations where reinstatement is not feasible, an award of front pay is still limited by the concepts of foreseeability and mitigation.

Accordingly, in this case, the circuit court must first determine whether reinstatement is feasible. If the court concludes that reinstatement is not feasible, then the court rather than the jury should determine the amount of front pay, if any, that is necessary to make the wronged employee whole.

Chief Justice Abrahamson filed a concurring opinion in which Justice Bradley joined. Justice Steinmetz filed a separate concurring opinion.

Guardians

Withdrawal of Life-sustaining Treatment - Incompetents -Vegetative States

Spahn v. Eisenberg, No. 95-2719 (filed 12 June 1997)

Seventy-one-year-old Edna was completely bedridden and diagnosed as suffering from Alzheimer's-type dementia. She breathed without a respirator but required artificial nutrition and hydration. Her condition was not, however, diagnosed as a persistent vegetative state. Edna's sister, her court-appointed guardian, asked that Edna be deprived of nutrition because she, Edna, would not want to live in such a condition. The circuit court refused the guardian's petition seeking an order authorizing the withholding of nutrition.

On bypass, the supreme court, in an opinion written by Justice Steinmetz, affirmed. Relying on In re Guardianship of L.W., 167 Wis. 2d 53 (1992), the court held "that a guardian may only direct the withdrawal of life-sustaining treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward." The court also held that "where the only indication of Edna's desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna's guardian may authorize the withholding of her nutrition." The court declined to tread the "slippery slope" by extending L.W. "beyond its current scope to include incompetent wards who are not in a persistent vegetative state." For persons not in a persistent vegetative state, the guardian must demonstrate by a preponderance of the evidence a clear statement of the ward's desires in these circumstances, subject to the limitations set forth in section 154.03(1) of the Wisconsin Statutes (life-sustaining treatment, including nutrition and hydration, cannot be withdrawn if it would cause pain or discomfort that cannot be medically alleviated).

Chief Justice Abrahamson concurred in the mandate, agreed that L.W. should not extend beyond persons in a persistent vegetative state, but wrote separately because the majority's depiction of Edna's condition was "incomplete" and to further explain L.W.'s application to this case.

Justice Bablitch also concurred, but argued in favor of additional procedures to ensure the accuracy and objectivity of diagnoses of persistent vegetative states and whether life-sustaining treatment should be withdrawn. He would "require three doctors anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state" - not just when life sustaining support is withdrawn.

Justices Geske and Bradley concurred in the majority opinion written by Justice Steinmetz and in the Chief Justice's concurrence.

Municipal law

Municipal Courts - Judicial Substitutions - Transfer of Cases

City of West Allis v. Sheedy, No. 96-3579-OA (filed 20 June 1997)

In this original action various municipalities in Milwaukee County asked the supreme court to determine whether the chief judge of the First Judicial District (Milwaukee County) exceeded statutory authority when he issued a directive. The directive provides that when a municipal court case is transferred because of a substitution of judge, the case is prosecuted by, and fines and forfeitures that result from the action stay with the municipality in which the new judge sits.

In a unanimous decision authored by Justice Bablitch, the supreme court concluded that the directive exceeds the chief judge's statutory authority. While it is true that Supreme Court Rule 70.20 gives the chief judge broad administrative powers, the statute controlling the substitution of municipal judges (Wis. Stat. 800.05) does not support the chief judge's directive in this case. To interpret the statute in the manner suggested by the chief judge would be to deny municipalities participation in their own lawsuits, would deny them their power to choose their own attorneys for the prosecution of those suits, and would deny them the right to retain the fines and forfeitures resulting from violations committed in their communities. Accordingly, the court held that section 800.05(3) does not authorize the directive issued by the chief judge in this case and it declared that the directive was issued without authority.

Property

Soil Contamination -Remediation
- Wis. Stat. Chapter 144

Grube v. Daun, No. 95-2353 (filed 13 June 1997)

The buyers of a parcel of land sued two prior owners after they discovered contamination from an underground storage tank. A jury found that the defendants were not negligent. The buyers appealed, raising two claims.

The supreme court, in an opinion written by Justice Wilcox, affirmed the circuit court. The first issue concerned whether Subchapter IV of Chapter 144 of the Wisconsin Statutes created a private cause of action for individuals who suffer damages from hazardous substance spills. "Overwhelming evidence" revealed that the Legislature designed Subchapter IV to protect the general public through regulation, not to create a private cause of action.

Second, the court also held that section 144.76 was not a safety statute giving rise to negligence per se. The statute was designed to protect the general public, not to provide protection to a certain class of persons.

Torts

Medical Malpractice - Statute of Repose - Due Process - Right to a Remedy

Makos v. Wis. Masons Health Care Fund, No. 96-0174 (filed 20 June 1997)

Cheryl Makos had a growth on her leg biopsied in 1985. It was diagnosed as nonmalignant. In 1994 she was diagnosed with a malignant melanoma. The growth removed in 1985 was reexamined and found to be malignant. Cheryl filed a suit for medical malpractice within the one-year discovery rule provided by section 893.55(1)(b) of the Wisconsin Statutes. The circuit court dismissed the action, however, because it was filed beyond the five-year statute of repose also set forth in section 893.55(1)(b).

The supreme court, in an opinion written by Justice Steinmetz, held that the statute of repose was unconstitutional as applied in this case. In this case, the statute granted Cheryl "zero days to file her action." The court distinguished case law that addressed other attacks on section 893.55(1)(b). It also distinguished cases that dealt with statutes of limitation as opposed to statutes of "repose." The court also held that the statute violated the state constitutional right to a "remedy," provided by Article I, Section 9 of the Wisconsin Constitution.

Justice Bablitch, joined by Justice Wilcox, concurred in the mandate but did not agree with Justice Steinmetz's rationale. The statute's language permitted the action; thus, it was not necessary to reach the constitutional issue.

Justice Crooks also filed a concurring opinion. He concurred in the majority's conclusion that the statute violated the right to a remedy guaranteed by Article I, Section 9 and would not have reached the other constitutional issues.

Justice Bradley, joined by Chief Justice Abrahamson, dissented.

Justice Geske did not participate.

Underage Drinking - "Procuring" Alcoholic Beverages for Underage Person

Miller v. Thomack, Nos. 95-1684 and 95-1766 (filed 13 June 1997)

Section 125.035(2) of the Wisconsin Statutes provides persons with immunity from civil liability arising out of the act of procuring alcohol beverages for another person. However, section 125.035(4) provides an exception to the immunity statute; that is, a person is not immune from civil liability arising out of the act of procuring alcohol beverages for another if the person knew or should have known that the other was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a third person.

This provision, together with section 125.07(1)(a)l allows a complaint to survive a motion for summary judgment when the plaintiff raises genuine issues of fact with regard to the following three elements: 1) the defendant procured alcohol beverages for an underage person in violation of section 125.07(1)(a)l; 2) the defendant knew or should have known that the underage person had not attained the legal drinking age; and 3) the alcohol beverages provided to the underage person were a substantial factor in causing injury to a third party. [NOTE: The court declined to address in this case 1) whether a person who participates in the procuring of alcohol for an underage person may be a third party so as to be able to allege a violation of section 125.07(1)(a); and 2) whether an underage person who consumes alcohol may be a third party so as to take advantage of the immunity exception of section 125.035(4)(b).]

The single issue before the supreme court in this case was whether a person who contributes money to purchase beer knowing that the beer will be consumed by an underage person "procures" alcohol beverages for the underage person in violation of section 125.07(1)(a)l, which provides that "no person may procure for, sell, dispense or give away any alcohol beverages to any underage person." In a unanimous decision authored by Chief Justice Abrahamson, the court concluded that a person who contributes money with the intent of bringing about the purchase of alcohol beverages for consumption by an underage person whom the person knows, or should know, is under the legal drinking age, "procures" alcohol beverages for the underage person within the meaning of sections 125.07(1)(a)l and 125.035(4). In so finding it rejected a defense argument that the act of contributing money does not in and of itself constitute "procuring."

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.