h3>'97 Significant Court Decisions: Highlights of
the 1997 Wisconsin Supreme Court and Court of Appeals Decisions
By Daniel W. Hildebrand
| Torts | Insurance | Children | Guardianship | Corporations | Criminal Law | Other Significant Decisions |
Torts
Probably the most difficult decision was Estate of Makos v. Masons Health Care
Fund1 concerning the
constitutionality of the statute of repose for actions against
health-care providers. The statute of repose bars medical malpractice
actions commenced more than five years from the date of the alleged act
or omission without regard to the date of discovery.2 The claim arose more than five years after the
plaintiff knew or had reason to know that she was injured as a result of
medical malpractice. The court, in a 4-2 vote, reversed the trial
court's decision dismissing the claim.
Justice Steinmetz held the statute unconstitutional beyond
a reasonable doubt because it violates procedural due process rights
under the Fourteenth Amendment and the right to a remedy guaranteed by
Article I, Section 9 of the Wisconsin Constitution. Justice Crooks,
after summarizing precedent, concurred that the statute violated Article
I, Section 9, concluding that it deprived the plaintiffs of any
possibility of recovery even though a legal wrong may have been
committed. Justices Bablitch and Wilcox, concurring, held that it was
not necessary to reach constitutional issues because alleged malpractice
concerning a "diagnosis" does not come within the terms of the statute.
Justice Bradley and Chief Justice Abrahamson, although believing that
the statute produces a regrettably harsh result, concluded that the
plaintiff failed to demonstrate its unconstitutionality beyond a
reasonable doubt. They also disagreed with the concurring opinion that
the statute did not apply to negligent diagnosis claims.
In Jacque v. Steenberg
Homes Inc.3 the court upheld a
$100,000 verdict for punitive damages in an intentional trespass case
where the jury awarded the plaintiffs only nominal damages of $1. The
intentional trespass occurred when the defendant moved a mobile home
across the plaintiffs' land knowing that the plaintiffs objected.
Wisconsin case law generally holds that there must be compensatory
damages in order to allow for the recovery of punitive damages. However,
the court has never directly addressed the issue as to whether nominal
damages can support a punitive damage award in the case involving
intentional trespass to land. An individual landowner's interest in
protecting his or her land from trespass is paramount. The law
recognizes that actual harm occurs in every trespass. Society has an
interest in punishing and deterring intentional trespassers beyond that
of protecting the interests of the individual landowners. When
landowners have confidence in the legal system, they are less likely to
resort to "self-help" remedies.
The $100,000 punitive damage award was not excessive. The defendant's
intentional trespass reveals an indifference and a reckless disregard
for the law and for the rights of others. Despite numerous unambiguous
refusals by the plaintiffs to allow the defendant access to their land,
the defendant moved the mobile home across plaintiffs' land to save
delivery costs. Deterrence is an important factor in order to remove
profit from intentional trespass.
Insurance
McEvoy v. Group Health
Cooperative4 held that the tort of
bad faith can be applied to health maintenance organizations. The court
reasoned that HMOs should be treated as insurers for bad faith purposes.
Like traditional insurance companies, HMOs are required to establish
contracts with subscribers with set terms of coverage. HMOs are
authorized to engage in the insurance business and are subject to many
of the same regulations as are applicable to insurance companies. Public
policy also supports equating HMOs and insurers. Through contractual
arrangements with physicians and patients, HMOs are able to exert
control over the costs of treatment and elimination of waste. However,
there is a concern that while HMOs focus on reducing costs, there may be
failures to recognize and to protect adequately the medical needs of
individual subscribers.
In some cases, there may exist a particular HMO action or omission
that may constitute both bad faith and malpractice. However, the tort of
bad faith is not designed to apply to malpractice cases arising from
mistakes made by a health-care provider in diagnosis or treatment. In
this case, the plaintiffs did not allege a malpractice action but rather
alleged that the defendant breached its contract and in bad faith denied
and threatened to deny coverage for out-of-network treatment.
Children
State ex rel. Angela
M.W. v. Kruzicki5 was a highly
publicized case involving a so-called "cocaine mom." It arose out of a
motion brought by Waukesha County to acquire custody of a viable fetus
that would suffer serious harm because the mother was ingesting cocaine
and a CHIPS petition alleging that the viable fetus was in need of
protection or services because its mother was unable to provide
necessary care resulting in physical harm. The trial court ordered the
pregnant woman detained at an in-patient drug treatment facility. The
issue presented was whether a viable fetus is included in the definition
of a "child"6 in the Children's Code.
By a 4-3 vote, the court determined that a viable fetus
was not a "child" within the meaning of the statute. Extending the
statute to viable fetuses would make other portions of the Children's
Code absurd. The Code allows a child to be taken into custody if the
welfare of the child demands that the child be immediately removed from
his or her present custody. Another provision requires a person taking a
child into custody to make every effort to immediately release the child
to its parent. By reading the definition of "child" in context with
other relevant sections of the Code, the majority believed that the
Legislature intended a "child" to mean a human being born alive.
The dissenting justices argued that the majority did not construe the
statute in accord with its legislative purpose. "Child" is defined as a
person who is less than 18 years of age. In light of medical knowledge
concerning fetal development, a child in a viable stage can and does
live separately in the womb of its mother and can live and exist as an
independent person if born in that stage. Also, this court recognized an
unborn child as a person for purposes of recovery under the wrongful
death statute. This court also has allowed consideration of a parent's
prenatal conduct in making a decision as to whether or not to terminate
parental rights. The preamble to the Children's Code expressly directs
that it be liberally construed to effect the objectives set forth by the
Legislature. Interpreting the word "child" to include a viable fetus
fulfills express legislative objectives by allowing the state to
intervene to protect and care for the physical development of an unborn
child.
Next Page
Guardianship
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Other significant decisions
Space does not permit discussion of these other interesting and
informative decisions.
In re Marriage of
Batchelor v. Batchelor, 213 Wis. 2d 251, 570 N.W.2d
568 (Ct. App. 1997) (a former client's conduct in litigation may
constitute a waiver of an attorney's conflict for disqualification
purposes).
In re Marriage of Krieman
v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App.
1997) (contempt may not be imposed where former husband demonstrated his
inability to comply with stipulated judgment for child support).
Anderson v. City of
Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997) (city
did not waive the $50,000 damage limitation under Wis. Stat.
§893.80(3) by failure to plead it as an affirmative defense).
Hoepker v. City of Madison Plan
Commission, 209 Wis. 2d 633, 563 N.W.2d 145 (1997)
(city may not condition extraterritorial plat approval upon
annexation).
Cascade Mountain Inc. v.
Capitol Indemnity Corp., 212 Wis. 2d 265, 569 N.W.2d
45 (Ct. App. 1997) (appeal waived by stipulated entry of conditional
judgment).
State v. Setagord,
211 Wis. 2d 397, 565 N.W.2d 506 (1997) (court may set parole date beyond
defendant's life expectancy).
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In
Spahn v.
Eisenberg7 the issue was whether
the guardian of an incompetent person who has not executed an advance
directive and is not in a persistent vegetative state has the authority
to direct withdrawal of life-sustaining medical treatment from the
incompetent person. The ward was a 71-year-old woman diagnosed with
Alzheimer's dementia. She was bedridden. Her doctors have indicated she
responds to stimulation from voice and movement. She also appears alert
at times, with her eyes open, and responds to mildly noxious stimuli.
The doctors do not believe her condition meets that of a persistent
vegetative state. The only testimony regarding her views on the use of
life-sustaining medical treatment is a statement she made in 1966 or
1967 when her mother-in-law was dying of cancer. She then stated that
she would rather die of cancer than lose her mind.
After examining prior case law, the court decided not to allow the
guardian to decide whether to withhold or withdraw life-sustaining
medical treatment from an incompetent adult who is not in a persistent
vegetative state. Although these adults have the same constitutional
rights to accept or refuse treatment as competent adults, they do not
have the same ability to exercise those rights. The court previously has
determined that it is not in the best interests of the ward to withdraw
life-sustaining treatment, including a feeding tube, unless the ward has
executed an advance directive or other statement clearly indicating his
or her desires. The reason the court requires a clear statement is
because of the state's interest in preserving human life and the
irreversible nature of a decision to withdraw nutrition from a person.
The court determined that the only indication of the ward's desires was
a statement made 30 years ago under different circumstances. This is not
such a clear statement of intent to enable her guardian to authorize
withdrawing her nutrition.
Corporations
In Jadair Inc. v. United
States Fire Ins. Co.8 the court
dismissed an appeal of a corporation because a corporate officer rather
than an attorney signed the notice of appeal.
Appeals are governed by the rules of civil procedure, which do not
expressly state who may sign a notice of appeal on behalf of a
corporation. However, the statute imposing a penalty for practicing law
without a license describes the practice of law to include appearing on
behalf of some other person or entity in any action or proceeding before
any court.9 The Wisconsin Constitution also
provides that individuals may forego legal representation and represent
themselves in court proceedings.10 Under
the plain language of the rules and statutes, only lawyers can appear on
behalf of, or perform legal services for, corporations in legal
proceedings before Wisconsin courts. The exception for actions filed in
small claims court does not apply to this case. Therefore, a notice of
appeal is defective if it is signed by a nonlawyer on behalf of a
corporation.
The primary purpose of the unauthorized practice of law statutes is
to protect the public. Lawyers have professional obligations, as
officers of the court, to satisfy themselves as to the legal grounds
supporting an appeal. When a nonlawyer signs and files a notice of
appeal on behalf of the corporation, the assurances required by lawyers
are not present. Lawyers make assurances that an appeal is well-grounded
in fact and is warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing law. The nonlawyer
is not bound by the professional responsibility rules nor is the
nonlawyer speaking on his or her own behalf. The requirement that only
attorneys licensed to practice law may sign and file a notice of appeal
is more than a technical requirement. It is a fundamental requirement
imposed by the Legislature. Abandoning that requirement would diminish
the protection that the Legislature has afforded the public and would
mean that any lay person, on behalf of someone else, could invoke the
jurisdiction of the Court of Appeals.
Criminal Law
In State v. Angelia
D.B.11 a high school student was
charged with carrying a concealed weapon after a school liaison police
officer found a nine-inch knife hidden in her clothing. The trial court
suppressed the knife and all derivative evidence obtained from the
student because it concluded that the search violated her state and
federal constitutional rights to be free from unreasonable searches and
seizures.
A student informer told the assistant principal that he had observed
a knife in another student's backpack and also indicated that the other
student might have access to a gun. The assistant principal called the
police and school liaison officer on duty at the school. The officer
interviewed the informant who identified Angelia as the other student.
Angelia was removed from her classroom. The officer informed Angelia
that they had received information that she may be carrying a knife or
gun. He conducted a brief pat down search of her jacket and pants and
had Angelia search her backpack. Her locker also was searched as
authorized by school policy. No weapons were discovered. After Angelia
denied she possessed any weapons, the officer made a further search and
observed two inches of a brown knife tucked in her waistband by her
right hip. He then arrested her.
The court held that the search was reasonable under the
"reasonable grounds" standard set forth in New Jersey v.
T.L.O.12 Where a careful balancing
of governmental interests and private interests suggests that the public
interest is best served by a Fourth Amendment standard of reasonableness
that stops short of probable cause, the court has not hesitated to adopt
such a standard. The proper educational environment in the schools
permits school officials to exercise a degree of supervision and control
that could not be exercised over free adults. Although school children
do not lose all legitimate expectation of privacy once they enter the
school grounds, a student's expectation of privacy must be balanced
against the interest of school officials in maintaining a safe and
orderly learning environment.
There are inherent differences between the roles of police officers
and school officials that make the reasonable ground standard
inapplicable to searches conducted by police officers acting
independently of school officials. But, a police investigation that
includes the search of a public school student initiated by school
officials, who are responsible for the welfare and education of all the
students within the campus, brings the police into the school-student
relationship. In Wisconsin, school attendance is compulsory. School
officials not only educate students who are compelled to attend school,
they also have a responsibility to protect those students and their
teachers from behavior that threatens their safety and the integrity of
the learning process. This task has become increasingly difficult with
the growing incidence of violence and dangerous weapons in schools. A
failure to extend the reasonableness standard to searches by police
officers under these circumstances might serve to encourage teachers and
officials, who generally are untrained in proper pat down procedures or
in neutralizing dangerous weapons, to conduct a search of a student
suspected of carrying a dangerous weapon on school grounds without the
assistance of a school liaison officer or other law enforcement
official. The court concluded that the officer's search was reasonable
under the circumstances and that the circuit court erred in suppressing
the knife and derivative evidence from the search.
In State v.
Fritz13 the court invalidated a
conviction concluding that the defendant had received ineffective
assistance of counsel prior to trial when he had the opportunity to make
a plea bargain. After defendant told his lawyer that he had sex with an
underage victim, the lawyer advised that at a trial it would be
defendant's word against the word of the victim and that he could not be
found guilty unless the prosecution persuaded all 12 jurors of his guilt
beyond a reasonable doubt. The defendant testified at his trial, denied
having sexual intercourse with the victim, and ultimately was convicted.
At post-conviction proceedings, the defendant admitted that he had lied
and stated that he would have taken the plea bargain if his attorney had
not given him bad advice - that he had nothing to lose by going to trial
because he would get probation in any event. The trial court concluded
that the attorney's conduct was grossly unethical and constituted
deficient performance but declined to find prejudice from the
ineffective assistance of counsel. The trial court reasoned that the
defendant had lied at the trial and will have to bear the
consequences.
The Court of Appeals reversed, holding that the defendant was
prejudiced by his lawyer's ineffective and unprofessional conduct. A
defendant, unschooled in the law and the ethical responsibilities that
are supposed to infuse our legal system, is not estopped from seeking
redress when he follows a lawyer's unethical advice. History and popular
culture teaches that all too often the legal system may be manipulated
to accomplish a desired result. In order to show prejudice, the
defendant must show that he would have in fact accepted the plea bargain
but for the lawyer's deficient performance. The court held that the
defendant would not be entitled to seek reinstatement of his original
plea bargain but would set aside the conviction in order to permit the
defendant to either negotiate a plea bargain or proceed with a new
trial.
Endnotes
1Estate of Makos v. Masons Health Care
Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997).
2Wis. Stat. §
893.55(1)(b).
3Jacque v. Steenberg Homes Inc., 209
Wis. 2d 605, 563 N.W.2d 154 (1997).
4McEvoy v. Group Health Coop., 213 Wis.
2d 507, 570 N.W.2d 397 (1997).
5State ex rel. Angela M.W. v. Kruzicki,
209 Wis.2d 112, 561 N.W.2d 729 (1997).
6Wis. Stat. §48.02(2).
7Spahn v. Eisenberg, 210 Wis.2d 558, 563
N.W.2d 485 (1997).
8Jadair Inc. v. United States Fire Ins.
Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997).
9Wis. Stat. §§757.30(1)
and (2).
10Wis. Const. art. I, sec.
21.
11State v. Angelia D.B., 211 Wis. 2d 140,
564 N.W.2d 682 (1997).
12New Jersey v.
T.L.O., 469 U.S. 325 (1985).
13State v. Fritz, 212 Wis. 2d
284, 569 N.W.2d 48 (Ct. App. 1997).
Daniel W. Hildebrand is a member of
DeWitt, Ross & Stevens S.C., Madison. He is a former president of
the Dane County Bar Association and of the State Bar of
Wisconsin.
Wisconsin Lawyer
