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Vol. 71, No. 11, November 1998
Court of Appeals Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Criminal Procedure
| Insurance | Lemon
Law | Municipal Law |
| Open Records Law | Real
Property | Sexual Predator Law |
| Torts | Unathorized Law Practice
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Real Property
Construction Liens - Notice - 10,000 Square-feet Exception
United States Fire
Protection, Wisconsin Inc. v. St. Michael's Hospital,
No. 97-3426-FT (filed 11 Aug. 1998) (ordered published 1 Oct.
1998)
A subcontractor installed a sprinkling system that permitted
a hospital to convert an area devoted to chemical dependency
treatment into a subacute care unit. The area exceeded 10,000
square feet. The hospital paid its general contractor for the
work but the subcontractor was never paid. The subcontractor
filed a claim for a lien against the hospital but it did not
serve the hospital with a 60-day notice-of-lien rights under
section 799.02(2)(b) of the Wisconsin Statutes. The circuit
court dismissed the action for failure to comply with the
notice provision.
The court of appeals, in an opinion written by Judge Fine,
reversed. The statute excepts notice where the construction "adds"
or "provides" more than 10,000 total usable square
feet of floor space. Since the hospital could not use the space
as a subacute care unit until the sprinkler system was installed,
the subcontractor "provided" 10,000 square feet of subacute
care space to the facility within the meaning of the statute.
Judge Curley filed a dissenting opinion.
Sexual Predator Law
Mental Disorders - "Substantial Probability" - Sufficiency of Evidence
State v. Kienitz
, No. 97-1460 (filed 30 July 1998) (ordered published
1 Oct. 1998)
The defendant appealed from an order committing him as a sexually
violent person under Wis. Stat. chapter 980. The court of appeals,
in a decision authored by Judge Vergeront, affirmed.
Diagnosed as a pedophile, the defendant challenged both the
legal standard and the sufficiency of evidence showing that it
was "substantially probable" that he would engage in
future acts of violence. On appeal the defense contended that
"substantially probable" meant an "extreme likelihood"
of future transgressions while the state argued that it meant
the defendant was "likely" to engage in such behavior.
The court rejected both arguments. Rather, the court held that
"'substantially probable' means 'considerably more
likely to occur than not to occur,'" a definition that
comported with the one given by the trial court. The
state's "likelihood" standard gave insufficient weight
to the adverb "substantially" and the defense's position
raised the probability bar too high. Finally, the court expressly
declined to attach a "minimum percentage" to the standard
or declare the statute impermissibly ambiguous because the Legislature
failed to do so.
The defense also challenged the sufficiency of the evidence.
Although a chapter 980 action is (nominally) a "civil proceeding,"
the court applied the standard of review governing the sufficiency
of evidence in criminal cases. See State v. Burkman, 96 Wis.
2d 630, 292 N.W.2d 641 (1980) (the evidence is viewed in the
light most favorable to the verdict to determine whether any
reasonable trier of fact could have found guilt beyond a reasonable
doubt). Under this standard, the evidence was sufficient to justify
the commitment.
Supervised Release from Commitment -
Unavailability of Treatment Facilities
State v. Sprosty,
No. No. 97-3524 (filed 6 Aug. 1998) (ordered published 1 Oct.
1998)
The respondent was committed as a sexual predator under Wis.
Stat. chapter 980. Thereafter he filed a motion for supervised
release. At his evidentiary hearing experts testified that although
he needed to continue his participation in sex offender and substance
abuse treatment, he could do so while living in the community
under close supervision. The trial court agreed and granted the
petition for supervised release. When efforts to locate an appropriate
treatment facility willing to accept the respondent failed, the
circuit court entered an order denying his supervised release
and returned him to secured confinement.
The court of appeals, in a decision authored by Judge Dykman,
reversed. It concluded that Wis. Stat. section 980.08(5) requires
a person's release once the court has determined that release
is appropriate. After it determines that release is warranted,
the court must notify the Department of Health and Family Services
(DHFS). DHFS then contacts the social services agency in the
county in which the person resides, and together they must prepare
a plan that identifies the treatment and services that the person
is to receive in the community. However, if the social services
agency in the person's county of residence declines to prepare
a plan, DHFS may then arrange with another county to prepare
the plan if the person will be living in that county. If DHFS
is unable to find another county willing to prepare the plan,
the court must then designate a county social services agency
to prepare the plan, order it to prepare the plan, and place
the person on supervised release in that county. In the end,
the court and DHFS are responsible for making sure that an appropriate
treatment plan is developed and that the person is placed on
supervised release in a community.
The appellate court concluded that the unambiguous language
of the statute cited above did not permit the circuit court to
order the respondent's continued confinement. If the person's
county of residence is unable or unwilling to prepare a plan,
and no other counties agree to prepare a plan or accept the person
into their program, the committing court must designate a county
for placement. If necessary treatment programs and facilities
are currently unavailable, as apparently was the situation in
this case, the county designated by the circuit court carries
the burden of creating or contracting for the necessary programs
and facilities.
Torts
Recreational Use Immunity - Group Sports - Injured Spectators
Meyer v. School District
of Colby., No. No. 98-0482 (filed 20 Aug. 1998) (ordered
published 1 Oct. 1998)
The plaintiff was injured while watching a high school freshmen
football game on school property. She fell down when a part of
the bleachers broke as she was descending the stands. The circuit
court granted summary judgment to the school district dismissing
the claim on grounds of statutory recreational use immunity,
section 895.52 of the Wisconsin Statutes.
The court of appeals affirmed in an opinion written by Judge
Deininger. The sole issue was "whether the exception in
the statutory definition of recreational activity for 'any organized
team sport activity sponsored by the owner of the property on
which the activity takes place' extends to the spectators,
and not just the participants, at such an event."
Analyzing the case law and the materials evidencing the Legislature's
purpose, the court held "that the organized team sports
activity exception does not extend to spectators who are not
participants in the excepted activity and whose injuries do not
arise out of the team sports activity or the actions of participants
in that activity."
Immunity - Public Officials - Interpretation and Application
of Law - Discretionary Acts
Kierstyn v. Racine
Unified School District, No. No. 97-1573 (filed 26 Aug.
1998) (ordered published 1 Oct. 1998)
The plaintiff's wife was a teacher employed with the Racine
Unified School District for more than 25 years and was eligible
for disability benefits administered by the Wisconsin Retirement
System (WRS) when she was diagnosed with cancer. The district's
benefits specialist, who was employed by the district, and who
had responsibility for advising district employees regarding
their benefits, met with the plaintiff and his wife and allegedly
told them that the wife could not apply for disability benefits
until her sick leave was exhausted. This was erroneous information.
Unfortunately, the wife died before her application for disability
benefits had been filed and WRS determined that the plaintiff
was entitled to nonannuitant survivor benefits which are significantly
less than the disability survivorship annuity he otherwise may
have received.
The plaintiff brought this suit against the district, its
liability insurer, and its benefits specialist alleging common
law negligence and negligent misrepresentation. The plaintiff's
principal argument was that the benefits specialist's decision
to meet with the plaintiff and his wife was discretionary; however,
when the plaintiff and his wife asked him questions, the specialist
had a ministerial duty to give the correct answers. Thus, by
giving incorrect advice, the plaintiff maintained that the specialist
breached this ministerial duty. The circuit court granted the
defense motion for summary judgment and dismissed the plaintiff's
complaint concluding that the benefits specialist was performing
a discretionary function when he advised the plaintiff and his
wife and was thus entitled to public immunity.
The court of appeals, in a decision authored by Judge Anderson,
affirmed. It concluded that the specialist's advice to the plaintiff
and his wife required the exercise of governmental discretion
and that he was thus immune from liability. The doctrine of immunity
may be inapplicable where a public officer's challenged decision
involves the exercise of discretion but the discretion exercised
is not governmental, that is, does not require the application
of statutes to facts or a subjective evaluation of the law. However,
in this case, the specialist was called upon to interpret the
applicable law and regulations and to apply them to the deceased's
particular situation. Said the court, the interpretation of laws,
rules, and regulations is an art, not a science. It certainly
does not present a situation in which duty "is absolute,
certain and imperative, involving merely the performance of a
specific task with such certainty that nothing remains for judgment
or discretion." In this case the specialist was exercising
his judgment in selecting and applying the relevant provisions
of the law to the facts presented by the plaintiff and his wife
and that exercise was protected by the doctrine of governmental
immunity.
Judge Brown filed a dissenting opinion.
Unauthorized Law Practice
Trusts - Nonlawyers Representing Trust Interests
Life Science Church
v. Shawano County, No. 98-0694 (filed 4 Aug. 1998) (ordered
published 1 Oct. 1998)
The Life Science Church, Bible Camp & Christian Liberty
Academy, and the Mission of Jesus Christ Almighty God appealed
a judgment that dismissed their quiet title lawsuit against Shawano
County and the Village of Tigerton. The trustees for these organizations
filed the notice of appeal without a lawyer licensed to practice
law in Wisconsin. The trustees did not make clear whether these
organizations are incorporated entities, unincorporated associations,
or common law trusts; one or more may be incorporated religious
entities under Wis. Stat. chapter 187.
The county and the village moved to dismiss the appeal, contending
that trustees may not represent the legal interests of their
trust in the courts of this state without licensed legal counsel,
in the same way that officers, directors, and shareholders may
not represent the legal interests of a corporation without licensed
legal counsel. The county and village argued that this legal
disability rendered the trustees' notice of appeal ineffective
to initiate a valid appeal. In a per curiam opinion the court
of appeals agreed and dismissed the appeal.
The Wisconsin Supreme Court has ruled that nonlawyers such
as officers, directors, and shareholders may not represent corporations
in Wisconsin courts. Corporations may appear in Wisconsin courts
only by means of a lawyer licensed to practice law in Wisconsin;
nonlawyers may appear only on their own behalf. The court of
appeals concluded that this principle also applies to trustees
who seek to speak for another's interests in court. Trustees
stand in a role similar to officers, directors, and shareholders
of corporations. They are nonlawyers attempting to represent
the legal interests of someone else - the legal interests of
their trust and the trust beneficiaries. Nonlawyers who attempt
to speak for the legal interests of others are engaged in the
unauthorized practice of law. Accordingly, the court held that
trustees may appear in Wisconsin courts without licensed legal
counsel only to represent their own legal interests in their
individual capacities - not to represent the legal interests
of their trusts or trust beneficiaries in their representative,
fiduciary capacities as trustees.
The court saw nothing in Wis. Stat. chapter 187 that would dictate
a different result for unincorporated religious societies. Accordingly,
it held that the religious, nonprofit, or unincorporated status
of appellant trustees' organizations did not empower the trustees
to speak for the organizations in court without licensed legal
counsel.
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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