Court of Appeals Digest

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

| Contracts | Criminal Law | Criminal Procedure | Family Law |
| Insurance | Jury Trials | Municipal Law | Open Meetings Law |
| Open Records | Taxation | Torts |

Jury Selection - Striking Minority Jurors - Timeliness of Batson Objection

State v. Jones, No. 97-1002-CR (filed 14 April 1998) (ordered published 27 May 1998)

The defendant, an African-American, was charged with robbery. A jury trial was scheduled and the parties and the court conducted voir dire of prospective jurors. After completing the questioning of the panel, the state peremptorily struck a Hispanic juror and two African-American jurors. After each side had exercised all of its peremptory strikes, the trial court asked whether the 14 remaining jurors were the jurors the parties had selected for the case. The defendant, through his counsel, answered affirmatively. The jury was sworn and the remaining members of the venire were excused.

The defendant's attorney then objected to the peremptory challenges made by the state of the three minority jurors, claiming that they were racially motivated in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and, therefore, a new jury panel should be selected. The trial court disagreed and the case proceeded to trial. The defendant was convicted.

The critical issue on appeal was whether the defendant had timely objected to the state's striking of the minority jurors. In a decision authored by Judge Wedemeyer, the court of appeals concluded that the defendant's Batson objection, made after the jury was sworn, came too late. It held that a defendant must make any Batson objection prior to the time the jury is sworn. If the objection is not made until after that time, the issue is waived.

In footnote the court observed that even if the defendant had made a timely objection, it would have been difficult, if not impossible, for the appellate court to review the merits of his claim because he failed to ensure that voir dire was recorded. The record documenting the questions and answers posed during jury selection is essential to any meaningful review of the Batson issue.

Fire and Police Commissions - Appeals of Disciplinary Actions

Younglove v. City of Oak Creek Fire and Police Commission, No. 97-1522-FT (filed 31 March 1998) (ordered published 29 April 1998)

Following disciplinary proceedings the Oak Creek Police and Fire Commission discharged Younglove from his job as chief of police in that community. He appealed his discharge to the circuit court pursuant to Wis. Stat. section 62.13(5)(i). In this statutory appeal, the circuit court affirmed the police and fire commission. [Note: This was not a review of the commission's decision by writ of certiorari.]

Younglove appealed the circuit court's affirmance to the court of appeals. The critical issue then became whether the court of appeals had jurisdiction to consider Younglove's appeal. The statute cited above provides that, if the order of the police and fire commission is sustained by the circuit court, "it shall be final and conclusive." Relying on this language, the court of appeals, in a decision authored by Judge Fine, concluded that it had no jurisdiction over Younglove's appeal. The Legislature has explicitly deprived appellate courts of jurisdiction to review orders issued by the circuit court when the latter considers appeals from police and fire commission orders under section 62.13(5)(i) and its predecessors. The Legislature has made the circuit court's decision on this kind of statutory appeal final - irrespective of whether an appellate court believes that decision to be right or wrong.

The court of appeals' decision also addressed the standard of review to be applied by the circuit court in a statutory appeal under section 62.13(5)(i). The statute provides that "the question to be determined by the [circuit] court shall be: upon the evidence [before the Board of Police and Fire Commissioners] is there just cause, as described under para. (em), to sustain the charges against the accused?" This requires the circuit court to ensure that the board's decision is supported by the evidence that the board found credible. The circuit court is not empowered to take evidence. Rather, if additional evidence or other material is needed, the circuit court is directed by statute to remand to the board for that purpose. The statute requires the circuit court to give deference to the board's findings and credibility determinations in deciding whether upon the evidence before the board there was just cause under the criteria specified in the statute to sustain the charges against the officer. The statute does not call for the circuit court to ignore credibility determinations made by the board which heard and saw the witnesses live, in favor of a de novo review of a transcript of the board's proceedings.

Judge Wedemeyer filed a dissenting opinion.

Personnel Decisions - Dismissals - Evidentiary Hearings

State of Wisconsin ex rel. Epping v. City of Neillsville Common Council, No. 97-0403 (filed 2 April 1998) (ordered published 27 May 1998)

Epping attacked his dismissal as the city's director of public works. He claimed that a violation of the open meetings law occurred when the personnel committee and the common council met in a closed session. When it reconvened in an open session, the common council approved a motion terminating Epping who was then given a letter of termination. The circuit court found that no open meetings violation occurred.

The court of appeals affirmed in a decision written by Judge Dykman. Under Wis. Stat. section 19.85(1)(b) a public entity can hold a closed session to consider someone's dismissal only if the employee was given actual notice of any evidentiary hearing and of any meeting at which final action might be taken. "Thus, if no evidentiary hearing or final action took place during the closed sessions, Epping was not entitled to actual notice of the meetings." Although the personnel committee and the common council "discussed" Epping's job performance and status during the closed session, this did not convert the meeting into an "evidentiary hearing" because no testimony was taken or evidence admitted. Nor did the record reflect that "final action" was taken during the closed session.

Personnel Files - Requesters - Notice to "Targets" - Venue

Klein v. Wisconsin Resource Center, No. 97-0679 (filed 1 April 1998) (ordered published 27 May 1998)

Two individuals committed under Chapter 980 (the Sexual Predator Act) to the Wisconsin Resource Center (WRC) filed a request for the personnel file of Marcia Klein, a WRC employee. The trial court denied the request.

The court of appeals, in an opinion written by Judge Snyder, affirmed. First, the two men were proper "requesters" as defined in Wis. Stat. section 19.32. Despite their involuntary commitment to WRC for treatment, they were not "incarcerated persons" and therefore ineligible to make such requests under the statute. Second, Klein's challenge to the release of her personnel file was proper. The reasoning of prior case law "permits a state employee who is the 'target' of a request for personnel records to challenge a record custodian's decision to release such information." The court also spelled out the procedures that attend when requests like these are made: The employer must balance the public's interest in open records against the competing factors set forth in the statute; in the event that disclosure is ordered, "the individual whose privacy interests are affected must be notified and given an opportunity to appeal the decision." Based on the record in this case, the court of appeals agreed that the denial was appropriate.

Finally, venue was proper in Winnebago County. Although the WRC inmates could have brought a mandamus action in Dane County, Klein - the "target" - was permitted to seek circuit court review in Winnebago County. In short, such actions are not limited to Dane County.

Sales Tax - Tax on Sale of Flexible Time-shares

Telemark Development, Inc. v. Department of Revenue, No. 97-3133 (filed 30 April 1998) (ordered published 27 May 1998)

This case involved a time-share condominium development that is part of a large resort complex in northern Wisconsin. Telemark Development Inc. sells one-week time share units in the condominiums to purchasers via land contracts and deeds conveying a fee simple interest in the units.

Two types of time-share arrangements are available at the resort. Under the Telemark Interval Owners Association's rules, the year is divided into two periods: "guaranteed use periods," comprising weeks 7, 8, 26, 27, and 52, and "flexible use periods," consisting of all other weeks of the year. Those who purchase "guaranteed" weeks are assured occupancy in a specific condominium during the week or weeks specified in their deeds or contracts. Purchasers of flexible time-shares, however, have no guaranteed occupancy periods and no specified condominium units. They must reserve a unit in advance on a "first come - first serve" basis and, if they fail to reserve a unit in a timely manner, they may lose use of the project for that year.

Telemark does not hold a sales tax seller's permit and did not collect sales taxes on any of its sales of the flexible time-shares. The Department of Revenue assessed delinquent sales taxes against Telemark on its sales of the flexible time-shares and the Tax Appeals Commission confirmed the assessment, concluding that the sale of flexible time-shares is taxable under Wis. Stat. section 77.52(2)(a)1. The circuit court affirmed, as did the court of appeals.

Section 77.52(2)(a)1 taxes the furnishing of rooms or lodging to transients that are available to the public, including those sold as time-shares, "if the use of the ... lodging is not fixed at the time of sale as to the starting day or the lodging unit." In a decision authored by Chief Judge Eich, the court concluded that the Tax Appeals Commission's decision in this case was entitled to due-weight deference, and it affirmed that decision to impose the sales tax on the sale of the flexible time-shares as a reasonable interpretation and application of the law.

Telemark also raised two constitutional claims. It argued that section 77.52(2)(a)1, as applied to its sales of flexible time-shares, violates the "uniformity clause" of Wisconsin Constitution, Article VIII, section 1, which states that "the rule of taxation shall be uniform." This argument was rejected by the court of appeals because the uniformity clause is limited to property taxes as opposed to transactional taxes such as those imposed on income or sales. The tax at issue in this case was imposed on the sale of time-shares - not on the property. The court also rejected Telemark's equal protection challenge to the statute, concluding that Telemark had not established beyond a reasonable doubt that the Legislature's decision to tax the sale of flexible time-shares, while not taxing the sale of guaranteed time-shares, results in the type of invidious discrimination the equal protection clause is designed to protect against.

Medical Treatment - Use of FDA "Approved"
Drugs/Devices for "Unapproved" Purposes - Hospital Liability

Staudt v. Froedtert Memorial Lutheran Hospital, Nos. 97-0192 and 97-0194 (filed 17 March 1998) (ordered published 29 April 1998)

This litigation arose out of the use of surgical screws by the plaintiffs' respective physicians to treat the plaintiffs' back problems. Neither of the plaintiffs was enrolled in a clinical investigation of the screws' efficacy or safety. They claim that they were injured as a result of the operations, and brought these actions against the hospitals where the surgeries were performed - not against their physicians or the manufacturer of the screws.

The plaintiffs' claims were predicated on what they contended was a violation of the hospitals' duties to them: to tell them that the Food and Drug Administration (FDA) had not approved the screws for the specific procedures for which they were used; to warn them of the risks inherent in the use of the screws; and to ensure that they were enrolled in a clinical investigative trial before the screws would be used in the surgeries. They conceded that the legal viability of these claims depended upon their contention that use of the screws in their surgeries violated the federal Food, Drug and Cosmetic Act, as amended by the Medical Device Amendments of 1976.

On summary judgment the circuit court dismissed the claims, holding that the hospitals were not liable to the plaintiffs because physicians have the right, within the exercise of their medical judgment and discretion, to use a medical device for purposes that have not been approved by the FDA as long as the FDA has approved use of the medical device for some purpose. In a decision authored by Judge Fine, the court of appeals agreed. Said the court, once a drug or device has been approved for any purpose, physicians may use that drug or device for purposes that have not been approved.

Although hospitals must give certain information to those of their patients participating in clinical investigations of "off-label" uses of medical devices, the hospital need not give this information to patients who are not part of such an investigation, even though their physicians are treating them with the device in an identical "unapproved" way. Moreover, the duty to get informed consent from a patient rests with the physician and not the hospital.

The appellate court recognized that the overriding issue in this case was whether medical decisions on how to treat patients will be made by those patients' physicians who are, of course, subject to liability if they commit malpractice, or whether additional layers of review should be interposed between patient and physician. The plaintiffs were able to cite no statute, regulation, or court decision that prevents a physician in the course of his or her medical practice from using an approved drug or medical device for an "unapproved" purpose. Until Congress changes the law to prohibit the "unapproved" use of drugs or medical devices that are approved for some purposes, or until the Legislature of this state - if consistent with the supremacy of federal law - alters the current calculus with respect to the use of drugs and medical devices, responsibility for the plaintiffs' alleged injuries as a result of their spinal operations does not lie with the hospitals in which the surgeries were performed.

Chiropractic Malpractice - Medical Problems

Goldstein v. Janusz Chiropractic Clinics S.C., No. 97-0326 (filed 21 April 1998) (ordered published 27 May 1998)

The plaintiffs brought this wrongful death action against the chiropractors who had treated a patient who later died of lung cancer. They alleged that under Kerkman v. Hintz, 418 N.W.2d 795 (1988), the chiropractor had a duty to recognize a lung mass as an "abnormality" and inform the patient that it was not treatable through chiropractic means. The circuit court granted summary judgment to the defendants.

The court of appeals, in an opinion written by Judge Curley, affirmed and explained Kerkman's ramifications. First, under Kerkman, chiropractors are not obligated to distinguish between a "medical problem" and a "chiropractic problem"; rather, they have a duty to simply determine whether the patient can be treated by chiropractic means. Second, chiropractors are not under an obligation to refer a patient to a medical doctor for treatment; rather, the chiropractor need only inform the patient that the ailment is not treatable through chiropractic means. In this case the plaintiffs claimed that the defendant chiropractors should have recognized that a lung mass near the spine was an "abnormality." The court of appeals rejected this argument, however, because as a matter of law it implied that the chiropractors should have recognized a "medical problem," which runs counter to Kerkman. In short, the court of appeals interprets Kerkman as holding that "chiropractors do not have a duty to 'recognize medical problems.'" Moreover, "it is beyond the scope of chiropractic practice to treat lung conditions, and chiropractors are certainly not licensed to diagnose or treat lung cancer."

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.

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