Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Criminal Law |
Criminal Procedure | Insurance | Motor Vehicle Law | Municipal Law | Paternity | Public Records |
Civil Procedure
Time Limits - Discovery Rule - Actions Against Land Surveyors
Tomczak v. Bailey, No.
95-2733 (filed 22 May 1998)
In 1988 Bailey surveyed various tracts of land on behalf of his
employer, American Surveying Co. Eventually, people bought the land and
built on the lots. In June 1994 it came to light that lots 96 and 97, as
marked by Bailey, were "actually the boundaries of lots 97 and 98 of the
unrecorded plat." Plaintiffs sued the defendant property owners who had
relied upon Bailey's erroneous survey for trespass and encroachment. The
defendants in turn sued Bailey and American for negligence. Bailey and
American moved for summary judgment on the ground that the claim was
time barred under Wis. Stat. section 893.37. Both the trial judge and
the court of appeals rejected this argument based on the discovery rule
set forth in Hansen v. A.H. Robins Inc., 335 N.W.2d 578
(1983).
The supreme court, in an opinion written by Justice Wilcox, reversed.
The court first held that section 893.37 is a statute of repose and that
the Hansen rule did not apply. In adopting section 893.37 the
Legislature considered "the inequity of a time limitation period that
commences prior to discovery, and yet determined that claims against
surveyors will be barred six years after the survey has been completed,
regardless of when the injury is discovered." This conclusion was
supported by the statute's plain language and the legislative history.
Nor did Hansen require "that all time limitations periods be
based upon the discovery rule"; a contrary ruling would simply
substitute the court's vision of sound public policy in place of the
Legislature's. Finally, for these reasons the supreme court overruled
H.A. Freitag & Son Inc. v. Bush, 447 N.W.2d 71 (Ct. App.
1989).
The court also rejected the plaintiffs' contention that section
893.37 violated the equal protection clauses of the state and federal
constitutions. A rational basis distinguished the treatment of land
surveyors from other potentially liable parties, such as property
owners. Adverse possession "provides inherent protection for the
landowner who may be sued for reliance on an erroneous survey." Section
893.37 provides similar protection for surveyors, without which their
liability "would be perpetual."
The plaintiffs also claimed that the negligent survey constituted a
"continuing tort," but the court held that the six-year period began to
run when Bailey signed and dated the survey in August 1988. Thus the
1995 action was untimely.
Separate concurring opinions were filed by Justices Steinmetz, Geske,
and Crooks.
Chief Justice Abrahamson, joined by Justice Bradley, dissented
because "the majority opinion's discussion of the Hansen
discovery rule is internally inconsistent and the holding is
irreconcilable with the court's prior cases relating to the application
of the discovery rule, statutes of repose, and Wisconsin Constitution
Article I, section 9, which provides that 'every person is entitled to a
certain remedy in the laws for all injuries, or wrongs which he may
receive.'"
Criminal Law
Unlawful Arrest - Common Law Right to Forcibly Resist an Unlawful
Arrest
State v. Hobson, No.
96-0914-CR (filed 27 May 1998)
This appeal was before the Wisconsin Supreme Court on certification
from the court of appeals. The certified question was whether Wisconsin
recognizes a common law right to forcibly resist an unlawful arrest.
In a majority decision authored by Justice Geske, the court concluded
that this state has recognized a common law privilege to forcibly resist
an unlawful arrest in the absence of unreasonable force since the time
of statehood. This privilege, the court noted, is separate and distinct
from the statutory privilege of self-defense codified in Wis. Stat.
section 939.48.
Despite the long existence of the common law privilege, the court
concluded that, based upon public policy, that right ought to be
abrogated at this time. Societal conditions in which the privilege arose
no longer exist and there are now safeguards and opportunities for
redress by those subjected to unlawful arrest. Given these changes and
the opportunity for civilized redress, the overall trend throughout the
United States has been toward abrogation of the common law right to
resist an unlawful arrest. Eleven states have judicially abrogated the
common law right to use physical force to resist an arrest that is
unlawful but which does not use unreasonable force. Seventeen other
states have signaled their agreement by legislatively abrogating the
common law defense. In sum, said the court, the majority of
jurisdictions has concluded that violent self-help is antisocial and
unacceptably dangerous. "We agree that there should be no right to
forcibly resist an unlawful arrest in the absence of unreasonable force.
When persons resist arrest, they endanger themselves, the arresting
officers, and bystanders. Although we are sympathetic to the temporary
deprivation of liberty the individual may suffer, the law permits only a
civilized form of recourse. ... Justice can and must be had in the
courts, not in the streets."
Finally, the court needed to decide whether its abrogation of the
common law defense should be applied in this case. It concluded that it
should not because its decision should be given prospective
application only.
Chief Justice Abrahamson filed a concurring opinion as did Justice
Bablitch. Justice Bradley joined Justice Bablitch's concurrence. Justice
Geske, joined by justices Steinmetz and Wilcox, filed a concurrence for
the purpose of addressing the concurrence submitted by Chief Justice
Abrahamson.
Double Jeopardy - Prosecution for Misdemeanor Battery Following
Acquittal of Felony Battery
State v. Vassos, No.
97-0938-CR (filed 27 May 1998)
The defendant was tried and acquitted by a jury of the crime of
substantial felony battery contrary to Wis. Stat. section 940.19(3).
This statute prohibits causing substantial bodily harm to another by an
act done with intent to cause substantial bodily harm to that person or
another. Thereafter the district attorney charged the defendant with
misdemeanor battery contrary to Wis. Stat. section 940.19(1) based on
the same incident upon which the felony battery prosecution had been
premised. The misdemeanor battery statute prohibits causing bodily harm
to another by an act done with intent to cause bodily harm to that
person or another without the consent of the person so harmed.
The defendant moved to dismiss the misdemeanor battery charge on
double jeopardy grounds and the circuit court granted the motion. The
state appealed to the court of appeals which certified the case to the
Wisconsin Supreme Court. In a decision authored by Chief Justice
Abrahamson, the supreme court reversed the circuit court.
The supreme court first considered whether the prosecution for
misdemeanor battery following the defendant's acquittal of felony
battery violates Wisconsin's Statutes. In particular, the court
considered the impact of Wis. Stat. sections 939.71 and 939.66. Section
939.71 prohibits a successive prosecution for a crime after a conviction
or acquittal on the merits unless each statute setting forth the
substantive crime "requires proof of a fact for conviction which the
other does not require." Analyzing the elements of the two batteries at
issue in this case, the court concluded that each does require proof of
a fact for conviction which the other does not require and thus section
939.71 does not prohibit successive prosecutions.
The court reached the same result by analyzing Wis. Stat. section
939.66, which is the statute prohibiting conviction of both a greater
inclusive crime and any lesser included crimes. Section 939.66(1)
prohibits multiple convictions for a greater inclusive and a lesser
included crime as those are determined by the "same elements" test. As
indicated above, the two batteries at issue in this case have different
element structures. Section 939.66(2m) prohibits a conviction for a less
serious or equally serious type of battery in addition to the more
serious type of battery that is charged. The court concluded that while
this statute would prohibit multiple convictions for both the
charged battery and another battery that is less serious or equally
serious, this statute does not apply to a prosecution for misdemeanor
battery following acquittal of felony battery.
The court also considered whether the prosecution of the defendant
for misdemeanor battery following acquittal of the felony battery
violated the Double Jeopardy Clauses of the federal and Wisconsin
constitutions. Contemporary double jeopardy analysis uses the "same
elements" test described above and, because the felony battery and
misdemeanor battery have different element structures, with each
requiring proof of at least one element which the other does not, the
"same elements" test does not bar the misdemeanor prosecution.
Nevertheless, an acquittal in the first prosecution may bar
subsequent prosecution under the collateral estoppel doctrine developed
in Ashe v. Swenson, 397 U.S. 436 (1970). According to this
doctrine an issue of ultimate fact that is determined by a valid and
full judgment cannot again be litigated between the same parties in a
subsequent lawsuit. When there has been a previous judgment of acquittal
based upon a general verdict, the trial court in a subsequent
prosecution must "examine the record of a prior proceeding, taking into
account the pleadings, the evidence, charge, and other relevant matter,
and conclude whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to foreclose
from consideration." The burden is on the accused to demonstrate that
the issue about which he or she seeks to foreclose relitigation actually
was decided in the first proceeding.
In this case, the supreme court remanded the matter to the circuit
court to determine whether the prosecution for misdemeanor battery is
barred under the Ashe collateral estoppel test.
Justice Bradley wrote a concurring opinion to indicate that, although
the majority opinion properly interprets the statutes and correctly
applies existing double jeopardy jurisprudence, it results in the
"hollow protection of a fundamental constitutional right" under the
Double Jeopardy Clause. Chief Justice Abrahamson and justices Steinmetz
and Geske joined the concurrence
Criminal Procedure
Search and Seizure - Consent Searches - Voluntariness - Search
Following Unlawful Entry of Premises
State v. Phillips, No.
95-2912-CR (filed 22 May 1998)
Three narcotics agents went to the defendant's home to follow up on
information from a confidential informant that the defendant was
involved in the sale of marijuana. They went there to pursue what was
described as a "knock and talk" encounter and did so without a search
warrant.
Upon arrival the agents saw the defendant descend an exterior
stairwell of the premises to what they believed to be a cellar. After
calling out the defendant's name, the agents descended the stairwell and
entered the basement through an open door. Upon arrival in the basement
the agents identified themselves, articulated the purpose of their
visit, and admitted that they did not have a warrant to search the
premises. The state conceded that the officers did not have the
defendant's permission to enter the basement.
Following the discussion summarized above, the defendant admitted
that he had drug paraphernalia and marijuana in his bedroom, which was
located in the basement but behind a closed door. One of the agents
asked the defendant if the officers could enter the bedroom and collect
the marijuana and any drug paraphernalia. The defendant responded by
opening the door to his bedroom and walking inside. The agents followed
him into the bedroom but admitted that the defendant had not given them
express verbal permission to do so. Inside the bedroom marijuana and
drug paraphernalia were seized. Thereafter the agents departed without
arresting the defendant that day.
In a subsequent prosecution the defendant moved to suppress the
evidence seized in the warrantless search. He argued that the search
violated his rights under the Fourth Amendment to the U.S. Constitution
and its counterpart in the Wisconsin Constitution. The circuit court
denied the motion, the defendant was convicted, and he took an appeal to
the court of appeals which reversed the circuit court. The court of
appeals concluded that the evidence seized during the search should have
been excluded because the consent given by the defendant to search his
bedroom was not so attenuated as to purge the taint from the agents'
initial unlawful entry into the home. The supreme court, in a majority
decision authored by Justice Steinmetz, reversed the court of
appeals.
The first issue before the supreme court was whether an appellate
court should independently review a circuit court's finding on the
voluntariness of a defendant's consent to search, or must the appellate
court give deference to the circuit court's determination. The supreme
court concluded that voluntariness of consent is a question of
constitutional fact. The appellate court will not upset the circuit
court's finding of evidentiary or historical fact unless those findings
are contrary to the great weight and clear preponderance of the
evidence. However, the appellate court will independently apply
constitutional principles to the facts as found, to determine whether
the standard of voluntariness has been met.
The court next considered the substantive issue of whether the
defendant voluntarily consented to the warrantless search of his
bedroom, and concluded that his conduct provided a sufficient basis on
which to find that he consented to the search. It also concluded that
the state met its burden of proving that the consent was voluntary and
was not the product of duress or coercion. The agents did not use any
misrepresentation, deception, or trickery to entice the defendant to
give his consent, but on the contrary identified themselves and fully
informed the defendant of the reasons for their presence at his home and
for their request to search his bedroom. The defendant knew that the
agents did not have a warrant and there was no credible evidence that
the agents threatened, physically intimidated, or in any way punished
the defendant. Weapons were not brandished and the defendant was not
placed in handcuffs; further the defendant was not arrested during or
after the search. In sum, the search was conducted under generally
nonthreatening, cooperative conditions and the defendant never objected
to the agents' presence in his home. Given these facts and the
defendant's personal characteristics (including age, intelligence, and
past experience with the criminal justice system), the court concluded
that the defendant's consent to the search of his bedroom was
voluntary.
Finally, the court considered whether the evidence seized should be
excluded because it was seized as a result of the agents' exploiting
their original unlawful entry into the basement. More specifically, the
issue was whether the discovery of the evidence occurred as a result of
exploiting illegal entry or was sufficiently attenuated so as to
dissipate the taint caused by that entry. Though only a few minutes
elapsed between the time of the entry and the consensual search, the
nonthreatening, noncustodial conditions surrounding the search leaned
toward a finding that any taint created by the unlawful entry had
dissipated when the defendant consented to the search.
Further, the court found that the conversation between the agents and
the defendant described above, which occurred before the search of the
bedroom, was an important intervening circumstance supporting a finding
that the agents did not exploit their unlawful entry into the
defendant's home. The court considered the purpose and flagrancy of the
officers' conduct and concluded that it did not rise to the level of
conscious or flagrant misconduct requiring exclusion of evidence
discovered during the consensual search.
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson and Justice Bablitch.
Search and Seizure - Third-party Consent Searches - Actual
Authority - Apparent Authority
State v. Kieffer, No.
96-0008-CR (filed 12 May 1998)
Police received information that an individual, John Zattera, was in
possession of psilocybin mushrooms, a controlled substance. They also
were given an address identified as the Garlock residence, where Zattera
was staying. The police went to that address in search of Zattera. When
they arrived, they initially spoke to Mr. Garlock, who identified
himself as the owner of the property. Garlock told the officers that his
daughter and son-in-law, Dawn and John Kieffer, lived in a converted
loft above a garage building on the property and that Zattera was
staying with them.
The officers asked Garlock whether the Kieffers paid rent. Garlock
replied that sometimes they helped pay for utilities but there was no
lease agreement. Garlock readily consented to let the police search
anywhere on the premises because he "didn't want any drugs on his
property." Garlock led the officers to the garage and opened the outside
garage door, which was unlocked. Garlock then led the officers up the
interior stairs to the Kieffers' living quarters. At the top of the
stairs was a door with a lock; however, it was unlocked at the time.
Garlock told the police that, before entering, he usually knocked "out
of respect." At the suppression hearing Garlock testified that, in this
instance, he didn't knock but simply opened the door and walked into the
loft, followed by the officers. A subsequent search of the premises led
to the discovery of psilocybin mushrooms. Though both John and Dawn
Kieffer were present, the officers did not ask for their permission to
search their living quarters. In fact, Dawn immediately asked whether
the officers had a search warrant.
In a controlled substance prosecution, defendant John Kieffer moved
to suppress the evidence obtained during the warrantless search
described above; the circuit court denied the motion, but the court of
appeals reversed. The supreme court, in a majority decision authored by
Justice Geske, affirmed the court of appeals.
The first issue considered by the court was whether Mr. Garlock, the
defendant's father-in-law, had actual authority to consent to a
search of the loft area above his garage where the defendant and his
wife were living. On the facts as described above, the court concluded
that it is not reasonable to find that Garlock had the right to permit
inspection of the Kieffers' living area in the loft, nor is it
reasonable to conclude that the defendant had assumed the risk that his
father-in-law and landlord might permit the loft area to be searched.
The relationship of Garlock to the loft premises was insufficient to
constitute actual common authority to consent to a search of the
Kieffers' living area.
Next, the court considered whether the police could reasonably rely
upon Garlock's apparent authority to consent to a search of the
defendant's living quarters in the loft. The U.S. Supreme Court has
recognized that even if a third party lacks actual common authority to
consent to a search of the defendant's residence, police may rely upon
the third party's apparent common authority to do so, if that reliance
is reasonable. See Illinois v. Rodriguez, 497 U.S. 177 (1990).
The Rodriguez court cautioned that officers may not always take
third-party consent to a search at face value, but must consider the
surrounding circumstances. That consideration often demands further
inquiry.
In this case the court concluded that the information known to the
police at the time of the search was inadequate to support a reasonable
belief that Garlock had apparent authority to consent. The police should
have made further inquiry into the sufficiency of Garlock's relationship
to the loft premises. For example, the officers could have asked whether
the Kieffers had the right to exclude others from entry into the loft
area, whether it was Garlock's normal practice to enter and exit the
loft area whenever he felt like it, whether Garlock considered himself
to be the Kieffers' "landlord," whether the loft had a lock on the door
and whether Garlock had a key to it, whether Garlock made personal use
of the loft area himself, and so on. In concluding that the police
lacked a reasonable basis to believe that Garlock possessed apparent
authority to consent to a search of the defendant's living area, the
court observed that in Wisconsin there is no presumption of common
authority to consent to a search when an adult defendant lives with his
or her spouse's parents or close relatives.
Justice Wilcox filed a dissenting opinion that was joined by justices
Steinmetz and Crooks.
Insurance
Territorial Exclusion - UM Coverage
Clark v. American Family Mutual Ins.
Co., No. 97-0970 (filed 21 May 1998)
Clark was injured on an island off the coast of Greece when the
brakes on his moped failed. He had rented the moped "from an uninsured
Greek citizen." Clark sued his insurer to secure payment under the
policy's uninsured motorist coverage. The insurer, American Family,
argued that the policy's territorial exclusion eliminated coverage for
the claim. The trial judge ruled that the territorial exclusion did not
apply to uninsured motorist coverage under Wis. Stat. section 632.32
(1989-90). A jury found the Greek citizen 56 percent contributorily
negligent and Clark 35 percent negligent. American Family appealed and
the court of appeals certified the issue to the supreme court.
The supreme court, in an opinion written by Justice Bablitch,
reversed the judgment in Clark's favor. Nothing on the face of section
632.32(6) precluded a territorial exclusion for uninsured motorist
coverage. Nor did "other applicable law" void such an exclusion. In
particular, Wis. Stat. section 344.33(2) did not "mandate" that insurers
"provide coverage for the entire world" and the cases cited by Clark
were distinguishable on a variety of grounds. Observing that "uninsured
motorist coverage essentially substitutes for insurance that the
tortfeasor should have had," Justice Bablitch pithily concluded that "by
purchasing uninsured motorist coverage, the plaintiffs purchased
liability coverage for the uninsured Greek citizen, subject however to
the territorial exclusions within the United States and Canada."
Exclusions - Duty to Defend
Smith v. Katz, No. 96-1998
(filed 2 June 1998)
Giuffre sold vacant land to the Smiths, who later discovered that the
land contained underground springs that complicated construction of a
home. The Smiths sued Giuffre for breach of warranty and
misrepresentation. The circuit court granted an insurer's motion for
summary judgment and dismissed it from the case. The judge found that
two exclusions in the policy applied to the facts and therefore the
insurer had no duty to defend the insured, Giuffre, or to indemnify him.
The court of appeals affirmed.
The supreme court, in an opinion written by Justice Crooks, affirmed.
According to the record, the insurance policy expired on Sept. 12, 1991.
The Smiths claimed that the "property damage" consisted of the land's
diminished value and the damage to the foundation wall. They also
asserted that the "occurrences" that caused the damage were Giuffre's
alleged misrepresentations and the groundwater on the land. The supreme
court held that, "even assuming for purposes of argument that Smiths
sustained 'property damage' caused by an 'occurrence' as defined in
accord with the policy provisions, the property damage did not take
place until some time after the construction of the home began on March
23, 1993."
Next Page
Motor Vehicle Law
OWI - Constitutionality of Statute Authorizing Seizure of Motor
Vehicles
State v. Konrath, No.
96-1261-CR (filed 22 May 1998)
Wis. Stat. section 346.65(6) provides for seizure of "a motor
vehicle" owned by certain repeat OWI offenders. The defendant raised
three constitutional challenges to the statute. First, he argued that it
violates Article I, section 12 of the Wisconsin Constitution by
permitting forfeiture of estate because the statute does not require a
nexus between the motor vehicle to be seized and the crime from which
the seizure and forfeiture result. Second, he argued that the statute
violates the Double Jeopardy Clauses of the Fifth and Fourteenth
Amendments to the U.S. Constitution by permitting successive punishments
because the statute does not require a nexus between the motor vehicle
and the crime from which the seizure and forfeiture result. Finally, he
argued that the statute violates the Due Process Clauses of the Fifth
and Fourteenth Amendments by its failure to provide notice and hearing
prior to seizure of the motor vehicle or a prompt post-deprivation
hearing.
Rejecting the defendant's arguments in this case, the supreme court,
in a majority decision authored by Justice Crooks, held:
1) The defendant lacks standing to assert a claim of forfeiture of
estate as prohibited by Article I, section 12 of the Wisconsin
Constitution. The statute in question is constitutional as applied
to him because the forfeiture is civil in nature and there was, in
fact, a nexus between the motor vehicle to be seized and forfeited and
the OWI crime which the defendant committed. His assertion that the
statute is facially overbroad fails because this type of
challenge is limited to claims grounded in the First Amendment.
2) As applied to him, section 346.65(6) does not violate the
Double Jeopardy Clauses of the U.S. and Wisconsin Constitutions. The
forfeiture of his motor vehicle under section 346.65(6) is an in
rem civil forfeiture. In rem civil forfeitures are
distinct from punishment for a criminal offense and, therefore, the
double jeopardy clause prohibition on multiple punishments is
inapplicable. For the reasons stated above, the defendant lacks standing
to mount a facial overbreadth attack on the statute.
3) The defendant's rights under the Due Process Clauses of the state
and federal constitutions were not violated. Section 346.65(6) sets
forth procedural due process protections. In this case the defendant was
notified in writing and orally of the impending seizure and possible
forfeiture of his vehicle on several occasions. He was given an
opportunity to be heard at the status conference and at the plea and
sentencing hearing before the circuit court. Further, this kind of case
presents the kind of limited extraordinary circumstances under which
immediate seizure of his vehicle is constitutionally permissible without
preseizure notice and hearing.
Before concluding the opinion, the majority emphasized that its
holding was premised on the facts presented in this case. Many of the
defendant's attacks on the statute were grounded on the proposition that
section 346.65(6) does not require a nexus between the motor vehicle to
be seized and the vehicle that was used to commit the OWI offense.
However, in this case, that nexus existed and the majority held that
such nexus was essential to its holding that the statute is
constitutional as applied to the defendant and does not constitute
forfeiture of estate or an infliction of multiple punishments. However,
said the court, "our holding does not encompass cases where the motor
vehicle to be seized and forfeited is not the motor vehicle involved in
the charged offense. Although we do not decide this issue, absent a
nexus between the motor vehicle and the crime, we recognize that
compelling constitutional challenges could be raised."
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Municipal Law
Zoning - Area Variances - "Unnecessary Hardship" Standard
State v. Kenosha County Board of
Adjustment, No. 96-1235 (filed 27 May 1998)
Wisconsin Statutes and the Kenosha County Ordinances call for a
uniform 75-foot setback from the ordinary high water mark of navigable
waters in unincorporated areas. In this case the property owner sought a
zoning variance to allow construction of a deck at the rear of her house
which would intrude upon the setback.
Despite opposition from the Department of Natural Resources, the
Kenosha County Board of Adjustment voted to grant the variance. At the
DNR's request, the state initiated a certiorari proceeding in which the
circuit court affirmed the board's decision. Subsequently, the court of
appeals affirmed the circuit court's judgment.
The Wisconsin Supreme Court, in a unanimous decision authored by
Justice Geske, reversed and remanded. The issue before the supreme court
was whether the Board of Adjustment properly applied the legal standard
for determining "unnecessary hardship" in order to grant a petition for
what is known as an "area" variance.
The state has given county boards of adjustment the power to grant
exceptions to zoning regulations known as "variances." Through Wis.
Stat. section 59.99(7) (1993-94) (which has been renumbered to Wis.
Stat. section 59.694(7) (1996-97) without a change in substance), the
boards are empowered "to authorize upon appeal in specific cases such
variance from the terms of the ordinance as will not be contrary to the
public interest, where, owing to special conditions, a literal
enforcement of the provisions of the ordinance will result in
unnecessary hardship, and so that the spirit of the ordinance shall
be observed and substantial justice done." (Emphasis supplied.)
The supreme court concluded that the legal standard of "unnecessary
hardship" specified in the statute requires that the property owner
demonstrate that, without the variance, he or she has no reasonable use
of the property. When the record before the board demonstrates that the
property owner would have a reasonable use of his or her property
without the variance, the purpose of the statute takes precedence and
the variance request should be denied.
In this case the court concluded that the board of adjustment did not
properly apply the legal standard for granting a variance and that its
decision to grant the variance was not reasonably based on the evidence.
Accordingly, it remanded for further proceedings consistent with its
opinion.
Paternity
Retroactive Child Support Obligations - Adult Child -
Court-appointed Counsel
Roberta Jo W. v. Leroy
W., No. 96-2753 (filed 22 May 1998)
Roberta Jo's paternity had never been established during her
minority. She was born in March 1976. Following high school graduation,
Roberta Jo filed a petition requesting determination of paternity and
child support. She was 18 years, eight months old when she filed the
action. The judge ruled that Roberta Jo was not entitled to past,
present, or future child support. In Fall 1995 the judge also determined
that when Roberta Jo's time for appeal expired or when she filed a
notice of appeal, the court-appointed attorney would be discharged and
the county would be freed from paying further fees. The case was before
the supreme court on certification.
The supreme court, in an opinion written by Justice Bablitch,
affirmed in part and reversed in part. The court reviewed the
legislative history in considerable detail. The pertinent statutes
reflected no "legislative intent to overturn Wisconsin's settled
precedent that a court has no authority to retroactively create a child
support obligation for an adult." The case law and sections 767.51(3)
and (4) establish that "[t]he circuit court only has authority to create
a child support obligation directly in favor of a person who is less
than 19 years old and is pursuing a high school diploma at the time he
or she commences the action requesting support." The court considered
and rejected three arguments against this result, including the argument
that under the state constitution the trial judge denied a "remedy" for
her "right."
The second issue concerned whether court-appointed counsel terminated
upon the filing of a notice of appeal. The supreme court held that
"after a notice of appeal was filed, the case was within the
jurisdiction of the court of appeals, and the circuit court no longer
had discretion to terminate court-appointed counsel." Section (Rule)
809.85.
Chief Justice Abrahamson, joined by Justice Bradley, concurred but
wrote separately to emphasize the "disarray of the case law" construing
the "right-to-a-remedy" provision of Wisconsin Constitution, Article I,
section 9.
Public Records
Death Certificates - Causation - Amending Vital Records -
Hearsay
Sullivan v. Waukesha, No.
96-3376 (filed 4 June 1998)
In 1990 Brian Sullivan was struck and killed by a train. The county
medical examiner conducted an investigation, determined that Sullivan
was a suicide, and listed suicide as the cause of death on Sullivan's
death certificate. In 1995 Sullivan's mother petitioned the court to
change the death certificate, producing evidence that her son lacked the
motive to kill himself. The trial judge ruled that the medical
examiner's original determination was not arbitrary or capricious.
On certification from the court of appeals, the supreme court
reversed. Writing for the court, Justice Steinmetz first addressed the
appropriate standard of review. Under Wis. Stat. section 69.12(1) the
petitioner "alleges only that the information in a vital record does not
represent the actual facts existing at the time the vital record was
filed." Thus, "the circuit court's only role is to review the evidence
presented by the petitioner and to determine whether the petitioner 'has
established the actual facts of the event in effect when the record was
filed.'" If the judge finds that the vital record does not accurately
reflect the actual facts, "the court reports the actual facts to the
state registrar." In making such factual determinations, the burden of
proof is the ordinary civil burden: proof by the greater weight of the
credible evidence. The medical examiner's findings are, however, subject
to a rebuttable presumption of accuracy under Wis. Stat. section 903.01.
To summarize, the petitioner must show by a preponderance of the
evidence that the facts contained in the death certificate do not
represent the actual facts in effect when the death certificate was
filed.
Finally, the trial judge erred when it refused to admit a training
pamphlet prepared by the Department of Transportation. Although hearsay,
the pamphlet was admissible under the public records exception, section
908.03(8).
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.
Wisconsin Lawyer
