Court of Appeals Digest

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

Contents

| Attorneys | Constitutional Law | Criminal Law |
| Criminal Procedure | Employment Law | Municipal Law |
| Property | Public Assistance | Taxation | Torts |

Attorneys

Legal Malpractice - Statute of Limitations - Discovery of Claim

Smith v. Herrling, Myse, Swain & Dyer Ltd., No. 96-2262 (filed 21 May 1997)(ordered published 24 June 1997)

Smith filed a legal malpractice claim against his former attorneys. He alleged he was injured by the criminal defense firm's (the firm) failure to timely file a jurisdictional challenge in the underlying criminal prosecution. The circuit court dismissed the civil complaint, finding that Smith had notice of the injury when the criminal court ruled that the jurisdictional defect was subject to waiver; hence, Smith filed his legal malpractice case beyond the statute of limitations.

The court of appeals, in an opinion written by Judge Brown, affirmed. Smith was himself an attorney licensed to practice in both Utah and Wisconsin. He was prosecuted for false swearing and fraud. Smith defended himself at trial but briefly retained the defendant law firm during pretrial proceedings. Smith argued that he did not receive notice of his claim until the Utah Supreme Court suspended his license because of the Wisconsin convictions. The firm argued that the injury occurred when the Wisconsin jury convicted him. The court of appeals rejected both positions. "The date of his injury was the last date on which this jurisdictional challenge could have been timely filed." The only issue was when Smith discovered the injury. The court held that "a reasonable person in Smith's position, even a person without legal training, would understand the significance of a missed deadline." Smith had notice when the criminal court issued its pretrial order in April 1986. The court of appeals rejected Smith's argument that he did not have notice until the appellate court deemed his jurisdictional claim waived.

Legal Malpractice - Guardians ad litem - Immunity

Berndt v. Molpeske, No. 96-2620 (filed 1 May 1997)(ordered published 24 June 1997)

Two children brought a legal malpractice action against the guardian ad litem who represented their interests during their parents' divorce proceedings. The circuit court dismissed the claim.

The court of appeals, in an opinion written by Judge Dykman, affirmed. The court held that "the guardian ad litem's function is intimately related to the judicial process. The interest that the guardian ad litem advocates is the same interest that the court considers in making its determination. The guardian ad litem and the court have the same responsibility - to promote the children's best interests. Because their functions are intimately related, the guardian ad litem has absolute quasi-judicial immunity for the negligent performance of these duties." The court's holding adopts a position followed by a majority of jurisdictions.

Constitutional law

Constitutionality of Drug House Abatement Law - Excessive Fines Clause

City of Milwaukee v. Arrieh, No. 96-0482 (filed 20 May 1997) (ordered published 24 June 1997)

This case concerns the constitutionality of the Wisconsin Drug House Abatement Law. See Wis. Stat. 823.113 et seq. The circuit court concluded that the closure and sale of an apartment building owned by the defendant pursuant to the abatement law violated the defendant's Eighth Amendment right to be free from "excessive fines."

In a decision authored by Judge Fine, the court of appeals held that the Excessive Fines Clause does not prevent the confiscation or destruction of property to abate or remediate a nuisance.

Criminal law

Sexual Assault of a Child Under Age 16 - Constitutionality of Wis. Stat. Section 948.02(2)

State v. Fischer, No. 96-1764-CR (filed 7 May 1997) (ordered published 24 June 1997)

The defendant was convicted of sexual assault of a child contrary to section 948.02(2) of the Wisconsin Statutes, which proscribes "sexual contact or sexual intercourse with a person who has not attained the age of 16 years." The defendant challenged the constitutionality of this statute claiming that it infringed upon his privacy right to engage in sexual activity and his privacy right to make decisions regarding procreation.

In a decision authored by Judge Anderson, the court of appeals affirmed the conviction.

The court began its analysis by noting that the right to privacy is considered fundamental and personal but that it is not absolute. The state may reasonably regulate this right to protect society or in support of other legitimate interests. A "significant state interest" is all that is required.

The court held that section 948.02(2) serves a significant state interest in regulating sexual activity on the part of children. "The state has a strong interest in the ethical and moral development of its children. This state has a long tradition of honoring its obligation to protect its children from others and from themselves. Section 948.02(2) has many salutary purposes; among the many significant interests of the state are the dangers of pregnancy, venereal disease, damage to reproductive organs, the lack of considered consent, heightened vulnerability to physical and psychological harm, and the lack of mature judgment."

The court held that the state's significant interest permits the Legislature to forbid an adult from having sexual intercourse with a child younger than a legislatively fixed age. That significant interest also prohibits the defendant's right to privacy as an adult from being enlarged to include sexual intercourse with a child under the age of 16 in violation of section 948.02(2).

Criminal procedure

NGI Commitments - Consecutive Sentences on Other Charges

State v. Harr, No.96-2815-CR (filed 1 May 1997) (ordered published 24 June 1997)

The defendant appealed from a judgment convicting him of three counts of possession of a firearm by a felon and sentencing him to a total of five years in prison to be served "consecutive" to his Wis. Stat. section 971.17 commitment to the Mendota Mental Health Institutions. This commitment resulted from an unrelated criminal case in which he previously had been adjudged not guilty by reason of mental disease or defect.

The critical issue on appeal was whether the criminal sentence on the new charges could lawfully be imposed to run consecutive to an NGI commitment the defendant already was serving. The court of appeals, in a decision authored by Chief Judge Eich, concluded that, under the plain language of applicable statutes, the trial court lacked authority to impose a prison sentence consecutive to an NGI commitment.

Section 973.15(2) authorizes the imposition of a sentence consecutive "to any other sentence" imposed at the same time or previously. The supreme court has defined a "sentence" as a "judgment of a court by which the court imposes the punishment or penalty provided by statute for the offense upon the person found guilty." In this case the defendant's prior NGI commitment was not a sentence within the meaning of this definition. He had not been convicted or "found guilty" of a crime with respect to the prior incident. There was, accordingly, no underlying "sentence" upon which to add a consecutive term of imprisonment in the present case. The court of appeals remanded the case to the trial court for resentencing.

Judge Dykman filed a concurring opinion.

Search and Seizure - "Community-caretaking Function" - Exclusionary Rule

State v. Dull, No. 96-1744-CR (filed 7 May 1997) (ordered published 24 June 1997)

A deputy took Matthew, age 15, into custody for underage drinking. The boy was caught in the front yard of his home. Matthew said his parents were not at home but that his older brother was. The deputy then entered Matthew's house without a warrant and opened a bedroom door, where he observed the older brother, Gregory, in bed with a 14-year-old girl. Gregory was charged with sexual assault and causing a child to expose her genitals. The trial court denied Gregory's motion to suppress.

The court of appeals, in an opinion written by Judge Brown, reversed. The state argued that the deputy's conduct was justified by the community-caretaking doctrine or the right of an officer to monitor persons in custody. The court rejected both arguments. Even assuming that the deputy's initial entry to the home was justified by exigent circumstances, the entry into the bedroom was not. The Juvenile Justice Code requires police to attempt to find a responsible adult with whom to leave children, such as Matthew, who are apprehended for underage drinking. In taking the boy into custody, however, the deputy put himself outside the bounds of the "community caretaker" function. And even if the deputy's efforts fell within the community caretaker rationale, the deputy's conduct was unreasonable under these facts. (Apparently he made no effort to ring the doorbell or have the dispatcher call the house.) Finally, while the deputy had the right to monitor Matthew after arresting him for underage drinking, this did not justify the warrantless entry into Gregory's bedroom while Matthew stood outside.

The court of appeals remanded for a determination of whether the exclusionary rule required suppression of statements made by the underage girl who was in Gregory's bed.

Employment law

Wisconsin Fair Employment Act - Age and Gender Discrimination - Burden of Persuasion

Currie v. DILHR, Equal Rights Division, No. 96-1720 (filed 24 April 1997) (ordered published 27 May 1997)

The petitioners all worked at a gas station convenience store and were fired from their jobs. Each filed a complaint with the Equal Rights Division of the Wisconsin Department of Industry, Labor and Human Relations, claiming that the employer had violated the Wisconsin Fair Employment Act (WFEA) (Wis. Stat. 111.31 to 111.395) by terminating them because of a combination of gender and age discrimination.

A critical issue on appeal was the allocation of the burden of persuasion in these kinds of cases. The employees argued that once they established a prima facie case of discrimination, the burden of persuasion should have shifted to the employer to establish that its actions were not motivated by a discriminatory purpose.

In a decision authored by Judge Roggensack, the court concluded that a prima facie case of discrimination shifts only the burden of production to the employer and that the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the employee.

Age Discrimination - Wisconsin Fair Employment Act - Physical Inability to Perform Job

Harrison v. Labor and Industry Review Commission, No. 96-1795 (filed 7 May 1997) (ordered published 24 June 1997)

The petitioner began his employment with Friends Professional Stationary Inc. (Friends) in 1979. He injured his back in 1981 and had corrective surgery. However, even with the surgery he was unable to perform all of the heavy lifting and bending usually associated with the printing presses he operated. He was able to continue working, however, because coworkers helped him with the heavier tasks.

When Friends reorganized in 1986, the petitioner was not hired by the new firm. He subsequently initiated age and handicap discrimination claims against Friends pursuant to the Wisconsin Fair Employment Act. See Wis. Stat. 111.31-111.395. A state hearing examiner only found probable cause on the age discrimination claim. Because the petitioner did not contest the finding regarding the handicap claim, the dismissal of that claim became final.

The Labor and Industry Review Commission (LIRC) found that, owing to his back injury, the petitioner could not prove that he was able to perform his job. The circuit court reversed the LIRC ruling and the court of appeals, in a decision authored by Judge Brown, reversed the circuit court.

The dispositive issue on appeal in this age discrimination case was whether the discharged employee's physical disability made him "physically or otherwise unable to perform his ... duties" under Wis. Stat. section 111.33(2)(a), thereby barring him from establishing a prima facie case. Because the employee's physical disability made him "not qualified" for the job, the appellate court held that the petitioner failed to state a prima facie claim that his employer's refusal to rehire him was motivated by age.

Section 111.33(2) provides that "it is not employment discrimination because of age to ... terminate the employment of any employee physically or otherwise unable to perform his or her duties." In plain language, said the appellate court, the statute explains that an employer does not engage in age discrimination when it discharges an employee because he or she is physically unable to perform his or her duties. This means that an employee who is performing a job with a physical accommodation does not meet the "minimal qualifications" for the job as that phrase is used in age discrimination claims. In this case the record clearly showed that the petitioner's former position required heavy lifting and that he could not perform those tasks on his own.

The court emphasized that this interpretation of the phrase "minimal qualifications" must be confined to age discrimination claims. Although an employer does not violate the age discrimination laws when it discharges an age-protected employee because of a physical limitation, the employer is not automatically "licensed" to eliminate all of its employees who encounter physical disabilities as they become older. An employer who does this still must answer to claims that it engaged in "handicap" discrimination under Wis. Stat. section 111.321.

Municipal law

Municipal Attorney - Due Process - Mixing Advocate and Adviser Roles - Risk of Bias

Nova Services Inc. v. Village of Saukville, No. 96-2198 (filed 7 May 1997) (ordered published 24 June 1997)

The court of appeals, in an opinion written by Judge Brown, reversed a decision by a village board because it violated due process. Plaintiff sought a license for a group home. The village denied the request following an adversary administrative hearing.

The court held that due process was violated when the village attorney served as both an advocate for the village and an adviser to the board during its closed session deliberation. Refuting the village's contention that the lawyer did not serve as an "advocate" during the adversary hearing, the court observed that the village attorney called witnesses, conducted direct examinations and "zealously cross-examined" the group home witnesses. Although the attorney did not make an opening or closing argument, his conduct created an impermissible risk of bias.

A new hearing was therefore necessary. Although the village attorney can serve as an advocate, the board must hire another attorney to act as its legal advisor. (The court did not ascribe any unethical behavior to the village attorney.)

Property

Easements - Scope and Extent - Limits

Atkinson v. Mentzel, No. 96-0160 (filed 7 May 1997) (ordered published 24 June 1997)

The parties asked the court to determine the scope and extent of an easement. The trial court ruled that the easement extended to the installment of utilities and also expanded the boundaries of the original easement.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed in part and reversed in part. The court rejected the argument that the easement was limited to "ingress" and "egress." The easement did not use these terms and its language did not restrict the use to "access" or "right-of-way." Rather, the easement provided "access for all uses of said property other than retail sales." Case law establishes that reasonableness may change with the owner's needs. Today, those needs include service by utilities.

As to the trial court's expansion of the easement, the court of appeals upheld two of the rulings and reversed another. Finally, the court rejected claims that the trial court erred by rewarding only $200 in damages and that costs should have been assessed for filing a frivolous defense. All involved the application of well-settled law to the facts of this case.

Public assistance

Entitlements - Medical Assistance - Assets Held in Trust - Homestead Exemption

Estate of Furgason v. DHSS, No. 96-2812 (filed 15 May 1997) (ordered published 24 June 1997)

The court of appeals, in an opinion written by Judge Dykman, reversed an order by DHSS that found the Furgasons were ineligible for medical assistance (MA) (Medicaid). DHSS ruled them ineligible because they had placed their farm in a revocable trust, which was not, according to DHSS, an exempt asset. The Furgasons' estates appealed.

The farm was the only asset in the trust. The Furgasons were the "original settlors, trustees and primary beneficiaries of the trust, and the trust was fully revocable by either one of them." DHSS argued that the trust owned the farm; therefore the Furgasons could not claim it under the homestead exemption. State law did not support this position, however. Under section 701.05 of the Wisconsin Statutes and case law, the Furgasons continued to have an ownership interest in the farm as trustees and beneficiaries of the trust. Under section 49.47(4)(b)1 of the Wisconsin Statutes, the farm was exempt as long as either Furgason intended to return there. The court saw no conflict between these provisions and other statutes that expressly govern trusts under the MA program and what assets are "available" to MA applicants. Finally, the court rebuffed the argument that the Furgasons were attempting to "shield" their property from various lien and estate claim recovery remedies. DHSS's ability to recover benefits paid from the trust assets was not relevant to the applicants' eligibility.

Taxation

Sales and Use Taxes - Failure to File a Sales and Use Tax Return - Statute of Limitations

Zignego Co. Inc. v. Wisconsin Department of Revenue, No. 96-1965 (filed 22 May 1997) (ordered published 24 June 1997)

The Wisconsin Tax Appeals Commission (TAC) concluded that the petitioner was liable for sales or use taxes on materials it purchased for use in its construction business. Among the issues on appeal was whether the claim for sales and use tax was barred by the statute of limitations. The evidence revealed that the petitioner failed to file sales and use tax returns.

The statute of limitation that TAC interpreted to permit the Department of Revenue to collect sales and use taxes from the petitioner provides, in pertinent part: "No determination of the tax liability of a person may be made unless written notice of the determination is given to the taxpayer within 4 years after the due date of the taxpayer's Wisconsin income or franchise tax return or, if exempt, within 4 years of the l5th day of the 4th month of the year following the close of the calendar or fiscal year, within 4 years of the dissolution of a corporation or within 4 years of the date any sales and use tax return required to be filed for any period in that year was filed, whichever is later." See Wis. Stat. 77.59(3).

In a decision authored by Judge Dykman, the court of appeals agreed with the TAC that, because the petitioner failed to file sales and use tax returns for the years in question, the statute of limitations in section 77.59(3) never began to run.

Torts

Duty - Hunting Accidents

Kramschuster v. Shawn E., No. 96-3246 (filed 13 May 1997) (ordered published 24 June 1997)

Shawn, a 15-year-old, shot and killed plaintiff's husband while hunting. The trial judge dismissed a claim against McClelland, an adult who had invited the boy to hunt with him and his son.

The court of appeals, in an opinion written by Judge Myse, affirmed. The case did not present a question of "guest-host" relationship between Shawn and McClelland. The court framed the basis for liability as follows: Does liability "arise from a failure to supervise or properly instruct the juvenile in regard to safe hunting procedures"? Shawn was an experienced hunter who was certified in hunter safety. The court held that it was not reasonably foreseeable that Shawn would "flagrantly violate hunting rules he knew and understood." (The alleged violations involved not hunting until the season actually began, waiting for adequate light and not shooting until the target was clear.)

Sponsorship of Underage Drivers - Joint and Several Liability

Johnson v. Schlitt, No. 96-1304 (filed 28 May 1997) (ordered published 24 June 1997)

Jeremy Schlitt obtained a driver's license when he was 16. A minor obtaining a driver's license is required to have adult sponsorship. It was undisputed that at the time Jeremy's driver's license was issued, his mother sponsored his application.

The state subsequently revoked Jeremy's driving privileges. His mother, however, took no steps to relieve herself of her sponsorship obligations as permitted by section 343.15 of the Wisconsin Statutes. During the revocation period, Jeremy was involved in an accident that led to this litigation. In the litigation his mother argued that she should be relieved from her sponsorship liability because, at the time of the accident, her son's operating privileges had been revoked by the state. She advanced this argument in a motion for summary judgment, which was denied by the trial court.

The court of appeals, in a decision by Judge Snyder, affirmed. The court concluded that because the statute provides a means for a responsible individual to cancel his or her sponsorship, and because the mother did not do so, she remained jointly and severally liable with her son for any damages caused by his negligence or willful misconduct.

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.