Court of Appeals Digest

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

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Search and Seizure - Reasonable Expectation of Privacy
in Hospital Operating Room

State v. Thompson, Nos. 97-2744-CR (filed 24 Sept. 1998) (ordered published 28 Oct. 1998)

The defendant was conveyed by emergency personnel to a hospital after the latter responded to a report that the defendant was having seizures, apparently from a drug overdose. There was information that the defendant had swallowed several bags of cocaine when the car in which he was a passenger was stopped earlier that day by police. On the basis of this information, the doctor treating the defendant determined that without surgery to remove the ingested drugs, the defendant risked death. The police did not suggest surgery to the doctor. A police officer was at the hospital to take custody of the cocaine when it was removed from the defendant. Hospital staff provided the officer with operating room clothing and the officer observed the surgery. Consent for the officer to be present was given by hospital staff and a supervising physician. The doctor removed three bags of cocaine from the defendant's small intestine.

The defendant was charged with a controlled substances violation and, before trial, moved to suppress the evidence contending that it was seized during a warrantless and unreasonable search. The circuit court denied the motion, concluding that the recovery of the cocaine did not constitute a search within the meaning of the Fourth Amendment because the doctor was not an agent of the state when he performed the surgery.

In a decision authored by Judge Deininger, the court of appeals affirmed. The sole issue on appeal was whether the officer's presence in the emergency room and operating room constituted an unlawful search.

A search occurs when the police infringe on an expectation of privacy that society considers reasonable. The burden is on the defendant to show that he had a reasonable expectation of privacy in the premises or property as well as a subjective expectation of privacy therein.

The court concluded that the defendant had no such reasonable expectation of privacy in the emergency room or operating room. Applying traditional criteria for making this determination, the court held that, though the defendant was legitimately on the premises of the hospital, he had no property interest in the hospital or its emergency and operating rooms, he did not take precautions customarily taken by those seeking privacy, and he did not put the two rooms to private use. He had no authority to exclude others from the treatment areas of the hospital and any expectation of privacy in those rooms was not consistent with historical notions of privacy. Hospital treatment areas are not public thoroughfares to which all manner of persons have unfettered access. However, those historical notions of privacy are not offended when a police officer, responding to an emergency call and with the acquiescence of hospital staff, enters the treatment area of the hospital. Nor are those notions offended when the officer observes a surgical procedure with the permission of the surgeon, given a patient's traditional surrender to his or her physician of the right to determine who may or may not be present during medical procedures.

Finally, the court concluded that certain statutory claims of the defendant did not help his cause. It rejected his argument that the statute providing for confidentiality of patient health-care records (Wis. Stat. section 146.82) made the officer's presence illegal. By its terms, the statute's confidentiality provisions apply only to records, not to medical procedures themselves or to places where medical procedures are performed. Further, the physician-patient privilege codified in section 905.04 offered no relief because it does not give a person the right to exclude others from the treatment areas of a hospital.

For all of the foregoing reasons, the court concluded that the defendant had no reasonable expectation of privacy in the hospital emergency or operating room. Accordingly, the officer's collection of evidence in these areas did not constitute a search within the meaning of the Fourth Amendment.

Sentencing - Payment to "Crime Prevention Organizations"

State v. Bizzle, Nos. 97-2616-CR (filed 23 Sept. 1998) (ordered published 28 Oct. 1998)

The defendant was convicted of possessing cocaine with intent to deliver. The sentencing court imposed a prison sentence and ordered her to make a contribution of several thousand dollars to the City of Racine Police Department Street Crimes Unit pursuant to Wis. Stat. section 973.06(1)(f). She thereafter filed a motion for post-conviction relief in which she claimed that the sentencing court impermissibly ordered this contribution. In a decision authored by Judge Anderson, the court of appeals agreed.

Section 973.06(1)(f) provides in pertinent part that costs taxable against the defendant include "an amount determined by the court to make a contribution to a crime prevention organization, if the court determines that the person has the financial ability to make the contribution and the contribution is appropriate." In this case the issue was whether the Street Crimes Unit of the Racine Police Department is a "crime prevention organization" under the statute. The appellate court concluded that it was not. It held that, as used in the statute, a "crime prevention organization" is an organization within the state that is designed to encourage the public to report incidences of crime to law enforcement agencies and to assist such agencies in the apprehension of criminal offenders. This definition, which excludes law enforcement agencies, is consistent with the policy that a defendant cannot be ordered to reimburse the internal operating expenses of law enforcement agencies.

Incompetents - Interested Persons - Evidence

Coston v. Joseph P., Nos. 97-1210 (filed 15 Sept. 1998) (ordered published 28 Oct. 1998)

Joseph P.'s sister and niece appealed orders finding him incompetent, placing him in a protective setting, and appointing a guardian for his estate and property. The court of appeals, in an opinion written by Judge Schudson, affirmed in an opinion that addresses the opportunity for "interested persons" to participate in competency hearings.

The court discussed an issue of first impression: whether a court can appoint a guardian and order protective placement without a trial on the merits when the GAL, the proposed ward, and his advocacy counsel do not object but "interested persons" allegedly have. The court of appeals concluded that interested persons can seek "further circuit court review" but the record in this case established that the interested persons never objected to the guardianship and protective placement. Although chapters 880 and 55 of the Wisconsin Statutes do not permit interested persons to "participate in the actual hearing," the court noted that their input could be extremely helpful and that trial courts have discretion to permit some participation as the circumstances warrant. In this case, however, the hearing was uncontested. Thus, the judge properly relied upon hearsay reports and proceeded in an expedited manner. Moreover, the interested persons never objected to the judge's reliance on the hearsay report or otherwise exercised their rights as interested persons to request a full evidentiary hearing.

Automobiles - Exclusions - Notice of Renewal on
"Less Favorable Terms"

Roehl v. American Family Mut. Ins. Co., Nos. 98-1207-FT (filed 23 Sept. 1998) (ordered published 28 Oct. 1998)

Roehl was injured while riding his motorcycle. At the time of the accident, the Roehls owned two automobiles that were insured by American Family (the motorcycle was insured by a different company). Because Roehl's injuries exceeded the other driver's insurance limits, he claimed UIM coverage under the American Family policies. American Family denied coverage under its "drive other car" exclusions. The trial court granted summary judgment to American Family.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. The Roehls argued that under section 631.36(5) of the Wisconsin Statutes, an insurer is required to give them notice when a policy is renewed under "less favorable terms." In a series of cases, Wisconsin courts had invalidated "drive other car" exclusions as violating various statutes, including those governing UIM insurance. In 1995, however, the Legislature responded by specifically validating "drive other car" exclusions for UIM and other coverage.

The Roehls contended that American Family was statutorily obligated to notify them of the Legislature's action and the insurer's reliance on it. The court rejected the argument. At no time did American Family alter the policies' language, change them to reflect "less favorable terms," or increase the premiums. Although the policies contained an "elastic clause" that conformed the policy to prevailing statutes, the language of neither the elastic clause nor the "drive other car" exclusion changed. In short, the Legislature's "resuscitation" of the "drive other car" exclusion did not obligate the insurer to provide the statutory notice.

Acquired Vehicles - Operable Condition

Meridian Mutual Ins. Co. v. Smith, Nos. 97-3777 (filed 3 Sept. 1998) (ordered published 28 Oct. 1998)

Smith purchased a 1984 pickup truck in March 1996 for $100 and drove it to his farm. When he applied for insurance, he requested coverage on only a 1981 truck and a 1991 car, not the 1984 truck. After the 1981 truck broke down in the summer of 1996, Smith repaired an oil leak in the 1984 truck and began to drive it regularly. On Aug. 7, 1996, Smith struck and killed a woman while driving the 1984 truck. His insurer filed a declaratory judgment action seeking a determination that the 1984 truck was not covered under the policy. Smith argued that he had "acquired" the 1984 truck by repairing it and therefore it was covered under the policy. The trial court granted summary judgment to the insurer.

The court of appeals affirmed in an opinion written by Judge Dykman. Smith claimed that when he bought the 1984 truck he never intended to use it. The court held, however, that Smith's intended use or the truck's condition was not controlling. The simple fact was that Smith drove the truck home after he bought it, which was some 13 days before the insurance policy took effect. Thus, Smith did not "acquire" the truck after the policy had begun.

The "Limited Policy Law" - Policy Limits - Invalid OIC Rule

Seider v. Musser, Nos. 98-1223 (filed 17 Sept. 1998) (ordered published 28 Oct. 1998)

The Seiders owned a building in which they both lived and conducted a restaurant business. They did not own or occupy any other building as their dwelling during this time. In 1995 the building was destroyed by fire. The Seiders insured the property under a policy carrying limits of $150,000. Although they filed a proof of loss that covered the limits, the insurer paid them $129,000, which represented the actual cash value of the building minus the deductible. Under section 635.05(2) of the Wisconsin Statutes the amount of property loss equals the policy limits whenever the insured real property is "owned and occupied by the insured as a dwelling." The insurer justified its action, however, under Wis. Admin. Code section INS 4.01(2)(e) which rendered the statute inapplicable when there is a "policy insuring real property any part of which is used for commercial (nondwelling) purposes other than on an incidental basis." The circuit court rejected the Seiders' claim that the administrative rule was invalid.

The court of appeals, in an opinion written by Judge Vergeront, reversed. The court held that the administrative rule conflicted with the unambiguous language of the statute, which "does not suggest that use of a dwelling for additional purposes affects the statute's application." Thus, whether the dwelling also is used for commercial purposes is of no moment. Nor did it matter that the Seiders' coverage was under a "commercial policy" as opposed to a "homeowner's policy."

Vacating Platted Street - Effect of Assessor's Map

Schaetz v. Town of Scott, Nos. 98-0841 (filed 22 Sept. 1998) (ordered published 28 Oct. 1998)

The petitioners appealed a circuit court order dismissing their petition to vacate a portion of a platted street adjacent to and abutting their real estate. The issue before the court of appeals was whether the street vacating procedures of Wis. Stat. section 236.43(1)(a) are available to the petitioners notwithstanding the filing of an assessor's map. Section 70.27 authorizes a governing body to order an assessor's map when it cannot ascertain boundaries of land for tax purposes or when gross errors in description exist.

Because an assessor's map was properly created, approved, and recorded in this case, the court of appeals held that the street vacating provisions of chapter 236 did not apply. This holding, however, does not leave a property owner seeking to vacate a street without a remedy. Chapters 66 and 80 of the statutes contain provisions for vacating roadways. While the relationship between these statutes and chapter 70 was not before the court in this case, it did note that there is no provision in chapter 70 that suggests that the statutes do not apply to chapter 70. Further, the court recognized that as a result of this interpretation a property owner no longer has a statutory right to petition for street vacation after the filing of an assessor's map. Legislative change must be made if this statutory scheme does not reflect the Legislature's intention.

Property Taxes - Void Tax Deeds - Redemption by
Payment of Taxes

Theige v. County of Vernon, Nos. 97-0959 (filed 3 Sept. 1998) (ordered published 28 Oct. 1998)

The plaintiff owned a parcel of land in Vernon County. He failed to pay real estate taxes due on this land for three years. Notice subsequently was provided to the plaintiff that the county would apply for a tax deed after the expiration of a statutory waiting period. After the waiting period expired, the county clerk executed and recorded a tax deed conveying the plaintiff's property to the county. The plaintiff thereafter filed a summons and complaint challenging the tax deed. He argued that the deed was void on its face because it did not conform to certain statutory requirements. The circuit court agreed.

Three weeks later the plaintiff paid the full amount due for all unpaid taxes plus interest and other charges. Thereafter the circuit court issued a second decision in this case addressing "the proper remedy in view of the court's prior decision." In the second decision, the court characterized the tax deed as "deficient" rather than void, and ruled that the appropriate remedy was to allow the county to file an amended deed in the correct form. The court also ordered the plaintiff's redemption payment returned to him. An order for judgment to that effect was entered and the plaintiff appealed.

In a decision authored by Judge Deininger, the court of appeals reversed. The court first concluded that the tax deed originally recorded by the county did not substantially comply with the statutory requirements for such deeds. See Wis. Stat. § 75.16. In fact, the deed recites that an outdated and thus improper procedure was used to obtain it.

Having concluded that the tax deed in question was fatally defective, the court next considered whether the plaintiff's attempted redemption of his property by paying the back taxes was effective in causing title to the property to remain in his name. The statutes permit the redemption of tax-delinquent property at any time before a tax deed to the property is recorded. In this case the original tax deed was recorded, but it was void on its face. The court concluded that only a valid tax deed cuts off an owner's right to redeem. By paying the back taxes, penalties, and interest due prior to the recording of a valid tax deed, the plaintiff satisfied the statutory requirements for the redemption of his property. Accordingly, title to the property remained vested in him by virtue of his redemption.

The court further concluded that the circuit judge did not have authority to nullify the redemption by allowing the county to reform its defective tax deed and thereby gain title to the land. The county cited no provision in chapter 75 that grants a court authority to permit retroactive amendment of a tax deed that is void on its face and the court of appeals was aware of none. To conclude that courts are vested with equitable or inherent power to authorize retroactive changes to void tax deeds would be inconsistent with the exclusive statutory origin of tax deed proceedings. Such a conclusion also would undermine the requirement that a valid tax deed be recorded before a property owner is precluded from redeeming his or her property.

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.