Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Attorneys | Criminal Procedure |
Evidence | Juvenile Law | Municipal Law | Torts | Worker's Compensation |
Attorneys
Attorney Fees - Incivility - Sanctions
Aspen Services Inc. v. IT
Corp., No. 97-0897 (filed 10 June 1998) (ordered published 29
July 1998)
IT Corporation leased equipment from Aspen Services. In a relatively
straightforward contract dispute, a jury awarded Aspen about $18,300 in
unpaid rent against IT. The judge ruled that IT's counterclaims were
precluded by the lease. Under terms of the lease, Aspen also sought to
recover $112,985 in attorney fees, costs, and disbursement. Based on the
incivility of Aspen's attorneys in the conduct of the litigation, the
judge awarded only $68,000.
The court of appeals, in an opinion written by Judge Anderson,
affirmed in an opinion that analyzes a judge's authority to control and
sanction incivility among lawyers. Appellate courts will defer to the
exercise of discretion by trial judges, who have been charged "to
exercise more control by appropriate sanctions." Here the trial judge
characterized the attorneys' behavior as "overtrial" and concluded that
the attorney fees were out of proportion to the result.
Trial courts and appellate courts have statutory and inherent powers
to enforce civility in the courtroom. This authority is independent from
Supreme Court Rule (SCR) 62, "Standards of Courtesy and Decorum for the
Courts of Wisconsin." Although SCR 62 cannot be enforced by the Board of
Attorneys Professional Responsibility, a judge can use it as a basis for
imposing sanctions for incivility. In this case, the judge properly
exercised his inherent and statutory power under section 802.05 of the
Wisconsin Statutes in finding that "Aspen's attorney engaged in conduct
which impeded IT's efforts to settle the dispute prior to the start of
the lawsuit, failed to attempt to expeditiously reconcile differences
through negotiations and the character of the services rendered was
inappropriate." Nor was it necessary for the judge to particularize the
offending conduct as opposed to characterizing counsel's general
behavior based on the entire record. Judge Anderson's opinion provides
numerous examples of the attorneys' incivility based on the record. In
sum, the attorneys' behavior was "unprofessional, repeated, and
egregious."
The court also rejected the attorneys' argument that the trial judge
had failed to exercise appropriate control. The judge "conducted himself
in an exemplary manner when confronted with contentiousness between the
attorneys." Not only did the judge make "every effort to keep the
attorneys focused on the real issues in dispute," but "[h]e also
recognized that the efficient use of limited judicial resources was not
served by micro-managing the parties' discovery disputes."
Finally, the court took up several issues relating to costs and
expenses. The claim that the judge miscalculated the costs of
photocopying should have been raised at the trial court level; thus, the
issue was waived. The judge also exercised appropriate discretion in
assessing the costs for a referee on discovery disputes and the cost of
a videotape deposition. The judge properly considered the misbehavior of
Aspen's attorneys in gauging allowable costs.
Criminal Procedure
Exculpatory Evidence - Hearsay - Harassment - Stalking
State v. Sveum,
No. 97-2185-CR (filed 7 May 1998) (ordered published 29 July 1998)
The defendant was convicted of stalking, harassment, violating a
harassment order, and criminal damage to property. Affirming the
convictions, the court of appeals, in an opinion written by Judge
Dykman, ruled that the evidence was sufficient and that alleged
exculpatory evidence was properly excluded.
In order to support his alibi defense, the defendant called a
third-party witness who was asked to testify to a statement made by the
defendant. The trial judge excluded the testimony as hearsay. Upholding
this ruling, Judge Dykman explained that the statement was offered for
the truth of the matter asserted; namely, the date that the defendant
visited the witness to pick up a motorcycle. The court refused to
consider the statement's admissibility under section 908.03(3)
(statements of present state of mind) because he failed to offer it
under this exception at trial.
The court of appeals also addressed the sufficiency of the evidence
supporting several counts and in the process interpreted several
statutory terms. Under the harassment statute, section 947.0133(1m)(b),
the "act" of harassment must be "accompanied by a credible threat." The
term "accompany" means "to exist or occur in conjunction or association
with." Threats uttered before the "act" of harassment can satisfy the
statute as long as they still "exist" at the time of the act; that is,
they produce the requisite fear in the victim. Under the stalking
statute, section 940.32, the defendant's "acts" must induce fear in the
victim; the State does not have to establish that the defendant's
"course of conduct" induced the fear.
Jury Trials - Dismissal of Juror During Trial for Cause
State v. Williams,
No. 97-1276-CR (filed 9 June 1998) (ordered published 29 July 1998)
The defendant was tried before a jury of 13 on numerous felony
charges. Before closing arguments and the court's instructions to the
jury, the trial court dismissed one of the 13 jurors because it had come
to the court's attention that this juror did not respond truthfully to
certain questions on voir dire. The defendant argued that dismissal of
this juror was error.
In a decision authored by Judge Fine, the court of appeals disagreed.
Although a trial court in Wisconsin may not substitute an alternate for
a deliberating juror, it does have the discretion to discharge a regular
juror for cause during trial. Failure to respond truthfully to voir dire
questions is sufficient cause to discharge a juror during the trial.
Contrary to the defendant's contention, specific proof of bias is not
required, as it is when a party seeks to overturn an adverse verdict.
Moreover, a litigant has no right to insist on the retention of a juror
merely because that juror might be biased in the litigant's favor.
In this case the trial court weighed the appropriate considerations
and determined that the integrity of the trial and of the jury
deliberation would be advanced if the case were given to the 12
remaining jurors. This, said the court of appeals, was a reasonable
decision under the circumstances.
Revocation of Probation - Certiorari Review in the "Court of
Conviction"
Drow v. Schwartz,
No. 97-1867 (filed 19 May 1998) (ordered published 29 July 1998)
The defendant pled no contest to several felony offenses. The court
withheld sentence and placed him on probation. Ultimately, probation was
revoked and the defendant was imprisoned. The revocation decision was
affirmed by administrative appeal and the defendant filed a petition for
a writ of certiorari to challenge the revocation. A hearing was held in
circuit court and the court affirmed the revocation.
On appeal the defendant contended that his petition for writ of
certiorari was not heard in the "court of conviction." He relied upon
State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306
(1971). The Johnson court concluded that the Legislature
provided probationers and parolees a right to a revocation hearing, and
that judicial review of that hearing is to be "directed to the court of
conviction." In this case the court of appeals interpreted "court of
conviction" to mean precisely what it simply provides. In so holding, it
rejected the state's argument that Johnson's requirement is
satisfied if the petition is heard by any circuit court sitting in the
county of conviction. It granted the defendant relief because his writ
of certiorari was heard in a different branch of the circuit
court from that in which he was originally convicted. In footnote the
court indicated that it was not suggesting that Johnson
requires that the same judge who sentenced the defendant must
hear the writ of certiorari.
Prison Discipline - Certiorari Review
State ex rel. Luedtke v.
Bertrand, No. 97-3238-W
State ex rel. Dowdley v.
Circuit Court for Dane County, No. 98-0107-W (filed 11 June
1998) (ordered published 29 July 1998)
Prisoners Luedtke and Dowdley petitioned for supervisory writs
directing circuit courts to grant their petitions to commence certiorari
actions under Wis. Stat. section 814.9 without payment of fees. In a
decision authored by Judge Dykman, the court of appeals held that in
deciding whether a petitioner's proposed action fails to state a claim,
the circuit court should review the certiorari petition using the same
standard that applies to ordinary civil complaints. Second, this
standard of review is not "discretionary," but rather, whether a
certiorari petition states a claim is a question of law, as with other
civil complaints. Third, even though a certiorari petition may allege an
apparently insubstantial harm, such as minimal loss of recreational
time, the circuit court must consider that a more complete development
of the case may reveal collateral consequences of prison disciplinary
decisions. Finally, the certiorari petition need not conclusively
establish that an error was committed in order to state a claim.
Erroneous Jury Instructions - Defendant's Presence
State v. Peterson,
No. 97-3294-CR (filed 9 June 1998) (ordered published 29 July 1998)
The court of appeals affirmed the defendant's conviction for battery
to a child. The battery involved the use of excessive force in
disciplining his step-daughter.
Judge Myse, writing for the court, held that the trial judge's error
in instructing the jury on the "privilege" to use force did not
prejudice the defendant. The focus throughout the trial was on whether
the force was "excessive." Thus, the court refused to eliminate harmless
error analysis when scrutinizing erroneous substantive jury
instructions.
The court also rejected the argument that error occurred when the
judge responded to the jury's questions without securing either the
defendant's presence or a waiver. Violations of the defendant's right to
be present are subject to harmless error analysis. Under section 971.04
of the Wisconsin Statutes, the defendant has a statutory right to be
present at various proceedings. Even assuming that the trial court
violated this statute, any error was harmless because the defendant's
lawyer was present, the defendant failed to show what difference his
presence would have made, and the trial court properly responded to the
jury's inquiry.
Evidence
Jury Deliberations - Submitting Exhibits - Witness's Statements -
Experts
State v. Mayer,
No. 97-3664-CR (filed 2 June 1998) (ordered published 29 July 1998)
The court of appeals, in an opinion written by Judge Myse, affirmed
the defendant's conviction for battering a woman that he later married.
The altercation occurred at a bar before the two were married. An
eyewitness provided a written statement to police describing the
battery. At trial, the victim recanted but the jury heard the
eyewitness's testimony and the judge received her written statement into
evidence. During deliberations the jury asked to see the written
statement. The trial judge permitted the jury to view the exhibit
because it rebutted allegations that she was too intoxicated to be
accurate.
A judge must consider three issues when submitting exhibits to the
jury: 1) Will it assist the jury? 2) Will the exhibit prejudice a party?
and 3) Is there a risk that the jury will use the exhibit improperly?
The written statement's "coherence and neatness" undoubtedly assisted
the jury in assessing whether the witness was too intoxicated to be
credible. Although the "general rule" in Wisconsin "is to read the
statement to a deliberating jury rather than submitting it," the jury in
this case had a "valid independent need to physically examine the
statement. " Finally, there was little risk of misuse because the
statement contained no inadmissible evidence.
The court of appeals also ruled that expert testimony on "battered
women's syndrome" (BWS) was properly admitted despite the defendant's
claim that BWS testimony is inappropriate in cases of a "single
assault." The opinion canvasses the case law on BWS and the
admissibility of expert psychological testimony to assist a jury.
Juvenile Law
"Reverse Waivers" - Wis. Stat. section 970.032(2) Not
Unconstitutionally Vague
State v. Armstead,
No. 97-3056-CR (filed 23 June 1998) (ordered published 29 July 1998)
Wis. Stat. section 970.32(2) provides that, with respect to certain
juveniles charged in the first instance in adult court, the adult court
shall retain jurisdiction unless the child proves by a preponderance of
the evidence all of the following: 1) that, if convicted, the child
could not receive adequate treatment in the criminal justice system; 2)
that transferring jurisdiction to the juvenile court would not
depreciate the seriousness of the offense; and 3) that retaining
jurisdiction is not necessary to deter the child or other children from
committing the violation of which the child is accused under certain
statutorily specified circumstances.
In this case the juvenile claimed that these "reverse waiver"
criteria are unconstitutionally vague. In a decision authored by Judge
Curley, the court of appeals disagreed. Responding to the specifics of
the defendant's attacks, the court concluded that the terms "adequate
treatment," "depreciate the seriousness of the offense," and "necessary
to deter the child or other children" are fairly definite. The terms
provide trial courts with standards to use in deciding whether to retain
jurisdiction, and do not require or allow trial courts to create their
own standards. Although the standards are strict and therefore make it
difficult for juveniles to prove that their case meets the criteria,
this does not make the standards vague. Said the court, strictness and
vagueness are not synonymous. Accordingly, the court concluded that
section 970.032(2) is not unconstitutionally vague.
Municipal Law
Zoning - Local Rule Limiting the Number of Variance Requests for the
Same Property
Tateoka v. City of Waukesha
Board of Zoning Appeals, No. 97-1802 (filed 24 June 1998)
(ordered published 29 July 1998)
The City of Waukesha Board of Zoning Appeals has adopted a rule
regarding rehearings and reconsiderations of zoning variance requests.
It provides that "rehearings, reconsiderations and new applications
seeking the same relief concerning the same property after a previous
application has been denied will not be heard by the Board of Appeals
unless a substantial change of conditions or circumstances has
intervened between the time the matter was first decided by the Board of
Appeals and the subsequent application. A change of ownership or the
passage of time without additional conditions or circumstances will not
justify another hearing before the Board."
Writing for the court of appeals, Judge Nettesheim concluded that the
Board of Appeals did not exceed its jurisdiction when it adopted this
rule and that the rule does not conflict with Wis. Stat. section
62.23(7)(e)6, which governs the time period in which the Board should
hear and decide a variance request and the notice which is to be given
before doing so. The appellate court further held that the rule is
reasonably related to the Board's legitimate interest in efficiency and
in the finality of its decisions. As such, it did not violate the
petitioner's right to due process and equal protection.
In the course of its opinion the appellate court noted that respected
commentators in the area of municipal law have observed that a rule such
as the one at issue in this case is widely accepted.
Torts
Bad Faith - Third Parties
Ristow v. Threadneedle Ins.
Co., No. 97-0309 & 97-0678 (filed 16 June 1998) (ordered
published 29 July 1998)
A truck driver was injured while working at a port in South Carolina.
He filed a claim with the port's liability insurer but never received
any money. The driver then began this bad faith action against the
port's liability insurer and others. The circuit court dismissed the
complaint.
The court of appeals, in an opinion written by Judge Anderson,
affirmed. First, the court flatly refused to extend the tort of bad
faith against insurers to cases where third-party claimants have
"settled" their claim with the insurer which then breaches the
settlement. The supreme court had previously rejected this extension in
Kranzush v. Badger State Mutual Casualty Co. (1981). Second,
the plaintiffs' breach of contract claim also was properly dismissed
because it had been filed after the South Carolina statute of
limitations had expired. South Carolina's statute applied by virtue of
Wisconsin's borrowing statute, section 893.07(1). Moreover, the supreme
court had recently held that the borrowing statute applies to contract
actions. Abraham v. General Casualty Co., (1998). The last
significant event giving rise to the plaintiffs' claims was the alleged
breach of the settlement, which occurred in South Carolina.
Worker's Compensation
Compensation for Medical Treatment - Employee's Two Choices of
Physicians
Hermax Carpet Marts v.
Labor and Industry Review Commission, No. 97-1119 (filed 23
June 1998) (ordered published 29 July 1998)
Wis. Stat. section 102.42 of the Worker's Compensation Law requires
an employer to compensate an injured employee for his or her medical
treatment, but restricts the employee to two choices of practitioners.
Among the issues in this case was whether the employee exceeded his two
choices under the statute.
In a decision authored by Judge Curley, the court of appeals
concluded that, for purposes of section 102.42, an employee "chooses" a
practitioner by seeking treatment from that practitioner and by
seeking reimbursement for that practitioner's expenses from the
employee's employer or its insurance carrier. In this case, although the
injured employee sought treatment from four practitioners, he only
sought reimbursement for the expenses related to two practitioners.
Therefore, as a matter of law, he did not exceed his choice of
physicians under section 102.42 even though he sought reimbursement for
the expenses of the first and fourth practitioners who treated him.
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
