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'97 Significant Court Decisions

| Torts | Insurance | Children |
| Guardianship | Corporations | Criminal Law |
| Other Significant Decisions |

Guardianship

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.