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Court of Appeals Digest

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

| Administrative Law | Civil Procedure | Commercial Law |
| Contracts | Criminal Law | Criminal Procedure | Employee Benefits |
| Insurance | Municipal Law | Torts |

Settlements - Failing to Read Contract - Mistake

Nauga Inc. v. Westel Milwaukee Co. Inc., No. 95-3263 (filed 20 Jan. 1998) (ordered published 25 Feb. 1998)

This dispute involved an agency contract between Nauga and Westel Milwaukee Company to market cellular telephone services. In the midst of rather protracted and complicated litigation, Westel submitted a new agency agreement to Nauga that contained a provision that released Westel from liability in several pending law suits. Realizing the consequences of the release, Nauga's lawyer added a paragraph that accepted the terms upon payment of $250,000. Nauga and Westel executed the agreement, but Westel later claimed that it had not seen the payment provision when it signed the contract. The circuit court refused to enforce the "new agreement" because there had been no "meeting of the minds."

The court of appeals, in a decision authored by Judge Schudson, reversed. The contract terms were unambiguous. The agreement was reached without fraud or mutual mistake. Rather, Westel simply "failed to properly and thoroughly review the contract before executing it." Although enforcement of the $250,000 settlement "may seem harsh where one party, in fact, did not intend to assent," the outcome was supported by "sound principles embodied in contract law." Only one party made the mistake; thus, no "mutual" mistake occurred.

Judge Wedemeyer dissented, agreeing with the trial judge that recission was appropriate.

Burglary - Intent to Commit a Felony in the Burglarized Premises - Jury Instructions Regarding Intent of the Actor

State v. Hammer, No. 96-3084-CR (filed 23 Dec. 1997) (ordered published 25 Feb. 1998)

Three women and a man were at a party at a residence in Milwaukee. Three men broke into this residence, beat the man, and sexually assaulted the women. Defendant Hammer was charged with several felonies arising out of this incident, including armed burglary with the intent to commit a felony in the premises entered. (This charge is distinguishable from the ordinary form of burglary, which is committed with the intent to steal from the premises entered.)

When the trial judge instructed the jury about the crime of armed burglary, she advised the jurors about the specific intent element of the offense as follows: "The fourth element requires that the defendant enter the building with the intent to commit a felony. That is, that the defendant intended to commit a felony at the time he entered the building. A first-degree sexual assault is a felony, an armed robbery is a felony, a substantial battery causing substantial bodily harm to another without consent and with intent to cause bodily harm or substantial bodily harm is a felony. ... If you are satisfied beyond a reasonable doubt that the defendant intentionally entered a building, that the entry of the building by the defendant was without the consent of the person in lawful possession, that the defendant knew that he did not have such consent and that the defendant entered the building with the intent to commit a felony, you should find the defendant guilty."

The trial court declined the defendant's request to instruct the jury that the verdict had to be unanimous with respect to the exact felony that he intended to commit when he entered the dwelling. The court of appeals, in a decision authored by Judge Wedemeyer, affirmed. It concluded that the defendant was not entitled to a unanimity instruction regarding the felonies that formed the basis of his intent to enter the dwelling. The jury merely needed to conclude that the defendant unlawfully entered the dwelling with intent to commit a felony.

Revocation of Parole - Successive Certiorari Proceedings

State ex rel. Macemon v. Christie, No. 97-0660 (filed 28 Jan. 1998) (ordered published 25 Feb. 1998)

In State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), the Wisconsin Supreme Court considered the issue of whether a defendant is prohibited from raising a constitutional claim in a post-conviction motion under Wis. Stat. section 974.06, if such a claim could have been raised in a previously filed section 974.02 motion and/or on direct appeal. The court concluded that a prisoner was compelled by section 974.06 to raise all grounds for post-conviction relief in an original motion and that "successive motions and appeals, which all could have been brought at the same time, run counter to the design and purpose of the legislation."

The question presented in this case was whether the bar of Escalona-Naranjo against successive appeals should be extended to appeals by writ of certiorari from parole and probation revocation hearings. As proclaimed by the U.S. Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), a revoked parolee is guaranteed one full and fair hearing which "must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation." Additionally, a right to appeal to the court of appeals is guaranteed by the State of Wisconsin Constitution. A thread runs through our entire jurisprudence that not only is an appeal guaranteed, but it should be meaningful.

However, said the court in an opinion authored by Judge Snyder, there is no requirement in our system of jurisprudence that a defendant be permitted to file successive appeals from the same action. Because Escalona-Naranjo determined that due process for a convicted defendant permits him or her a single appeal of that conviction and a single opportunity to raise claims of error, it logically follows that a system that permits a revoked parolee or probationer the same opportunity to contest a revocation comports with due process. An aggrieved probationer or parolee should raise all of the issues of which he or she is aware in the original writ of certiorari proceeding; those claims then can be reviewed by the circuit court and, if desired, by the appellate court.

The court of appeals also adopted the exceptions allowed by Escalona-Naranjo in this case. Thus, if a defendant can offer a sufficient reason for failing to raise an issue of constitutional dimension or for a claim that such an issue was argued inadequately at the time of the original certiorari proceeding, the action may proceed.

Hearsay - Exposing Children to Harmful Materials

State v. Kevin L.C., No. 97-1087-CR (filed 4 Dec. 1997) (ordered published 25 Feb. 1998)

The defendant was convicted of first-degree sexual assault and exposing a child to harmful materials. The court of appeals, in a decision authored by Judge Deininger, affirmed.

First, the trial court did not violate the defendant's right of confrontation by admitting a child's out-of-court statements made to a social worker. The statements were admitted under the so-called residual exception to the hearsay rule, but the Sixth Amendment right of confrontation requires that the prosecutor take reasonable steps to actually produce the hearsay declarant and demonstrate that the hearsay is reliable. The child-declarant, age six, was ruled "unavailable" after she appeared in court but was unable to testify about the events. The court of appeals observed that the defendant was permitted the "opportunity" to cross-examine the child before the jury. In the alternative, the court also ruled that the state had "produced" the declarant for confrontation purposes. The hearsay statements also passed muster under the second prong of the confrontation analysis. Although the residual exception is not "firmly rooted" and hence does not carry presumptive reliability, the statements carried sufficient "indicia of reliability." In making this assessment the court considered the statements' contents and the circumstances surrounding the utterances to the social worker.

Second, the court held that section 948.11 of the Wisconsin Statutes was constitutional. The statute comported with First Amendment protections by reasonably imposing "upon an individual the obligation to ascertain the age of persons to whom he or she wishes to exhibit materials deemed harmful to children." In particular, the court distinguished United States v. X-Citement Video Inc., 513 U.S. 64 (1994), which struck down a federal statute for omitting any scienter requirement regarding age. The federal statute covered actions in which it was unlikely that the defendant would personally confront a child, thus depriving the defendant of any opportunity to assess the victim's age.

Wisconsin Retirement System - Disability Benefits - Employer Certification that Termination Was Because of Disability

State ex rel. Bliss v. Wisconsin Retirement Board, No. 97-1639 (filed 8 Jan. 1998) (ordered published 25 Feb. 1998)

Wis. Stat. section 40.63(1) provides that a participating employee is entitled to a disability annuity from the Wisconsin Retirement System if, prior to attaining his or her normal retirement date, certain conditions are met, including the following:

"The employee is not entitled to any earnings from the employer and the employer has certified that it has paid to the employee all earnings to which the employee is entitled, that the employee is on a leave of absence and is not expected to resume active service, or that the employee's participating employment has been terminated, because of a disability as described in [section 40.63(1)(b)] and as a consequence the employee is not entitled to any earnings from the employer."

In this case the petitioner was terminated from employment with a municipal police department for violating department rules. Prior to the discharge, he applied for disability benefits under the Wisconsin Retirement System. The Department of Employee Trust Funds and the Wisconsin Retirement Board (board) denied the application for a disability annuity because the petitioner's employer did not certify that termination was due to disability. In fact, the employer certified that termination was for a reason other than disability.

The petitioner commenced this action to obtain certiorari review of the board's action. The circuit court affirmed the board and the court of appeals, in a decision authored by Judge Deininger, affirmed the circuit court.

The court of appeals concluded that the board's interpretation of the statutory eligibility requirements for a disability benefit under the Wisconsin Retirement System was entitled to great weight deference. Applying that standard of review, it concluded that the board's interpretation of the statute quoted above to condition disability benefit eligibility on the employer's certification that the petitioner was terminated (or on indefinite leave) because of a disability, did not directly contravene the words of the statute. Nor did the petitioner show that the board's interpretation was contrary to legislative intent or without a rational basis. Accordingly, the employer's failure to certify that the petitioner's termination was because of a disability was fatal to his application for a disability annuity. The court indicated that it would reach the same conclusion if the petitioner had been on an indefinite leave of absence that the employer failed to certify as being caused by a disability.

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