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 |

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.'"

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

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.

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