Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Counties | Criminal Law | Criminal Procedure | Employment Law | Environmental Law | Evidence | Highways | Jury Trials | Juvenile Law | Municipal Law | Torts | Worker's Compensation |
Counties
Liability for Injuries Caused by Insufficient Highway Maintenance -
County Immunity - Wis. Stat. Section 81.15 - Definition of
"Highway"
Morris v. Juneau
County, No. 96-2507 (filed 30 June 1998)
Morris was injured when another vehicle traveling towards him hit a
rut on the shoulder of the road, lost control, and came back over the
center line striking his vehicle. Among others he sued Juneau County,
alleging that the collision occurred in part due to a highway defect
resulting from a want of maintenance or repair by the county. The county
answered that it was immune from the plaintiff's claims because the
defects were based on acts that the county performed in the exercise of
its discretionary powers. The county later filed a motion for summary
judgment, which was granted by the circuit court. The court of appeals
subsequently reversed.
In a unanimous decision authored by Justice Bablitch, the supreme
court affirmed the court of appeals. The first issue considered by the
court was whether governmental immunity under Wis. Stat. section
893.80(4) applies to a claim made under Wis. Stat. section 81.15. The
latter statute provides in pertinent part that the "claim for damages
shall be against the county" for "damages [that] happen by reason of the
insufficiency or want of repairs of a highway which any county ... is
bound to keep in repair." The supreme court concluded that if a
plaintiff states an actionable claim under section 81.15, the
governmental immunity provisions of section 893.80(4) do not apply.
The second issue addressed by the court was whether the term
"highway," as used in section 81.15, includes the shoulder adjacent to
the paved portion of the highway. The court concluded that in the
context of this statute the term "highway" includes the shoulder of the
highway.
Criminal Law
Bail Jumping - Multiplicitous Charging
State v. Anderson,
No. 96-0087 and 06-0088 (filed 2 July 1998)
The defendant was convicted of two counts of bail jumping.
Prosecutors alleged that he violated two separate conditions of the same
bond; namely, that he avoid contact with a named person and that he not
consume alcohol. The court of appeals reversed the convictions because
they were multiplicitous.
The supreme court, in an opinion written by Justice Bablitch,
reversed the court of appeals. The court held that the violations of the
different conditions of bond were different in fact. Even if the
drinking and the illegal contact were not separate in time, the acts
were very different in nature. Each act required proof of a fact that
the other did not (that is, consuming alcohol versus contact with the
battery victim). Moreover, nothing rebutted the presumption that the
Legislature intended multiple punishments where different conditions of
the same bond are violated. The Legislature intended to protect
different interests by permitting bonds to embrace multiple
conditions.
Justice Geske dissented, joined by Chief Justice Abrahamson and
Justice Bradley, stating, "This is a case where good facts make bad
law."
Flag Desecration Statute - Overbreadth
State v. Janssen,
No. 97-1316-CR (filed 25 June 1998)
The supreme court, in an opinion written by Justice Wilcox, affirmed
the court of appeals' decision that the criminal statute proscribing
"flag desecration" was unconstitutionally overbroad and that its flaws
could not be cured by limiting constructions. Wis. Stat.§
946.05.
Criminal Procedure
Alford Pleas - Sex Offenders - Revocation of Probation for Failing
to Admit Guilt in Treatment Program - Appointment of Counsel for Section
974.06 Proceedings
State ex rel. Warren v.
Schwarz, No. 96-2441
State v. Warren, No.
97-0851 (filed 1 July 1998)
The defendant was charged with two counts of sexual assault of a
child. Ultimately, the defendant entered an Alford plea to one
of the counts and the state agreed to dismiss the remaining count. [The
Alford plea finds its roots in North Carolina v.
Alford, 400 U.S. 25 (1970), where the defendant affirmatively
protested his innocence, yet pled guilty to a lesser degree of murder to
avoid the death penalty he may otherwise have received.] The circuit
court imposed a five-year prison sentence, which it stayed in favor of
an eight-year term of probation. As a condition of that probation, the
court ordered that the defendant obey the rules of the probation
department and "that he attend any and all counseling that is ordered by
the department."
After being sentenced, the defendant served under probationary
supervision for approximately five years. During this time he
participated in sex offender treatment programs but he consistently and
repeatedly denied any culpability in his conviction for sexual assault
of a child. Ultimately, the department revoked his probation for failure
to admit his guilt during counseling, and it ordered the defendant to
begin serving the five-year sentence imposed by the trial court.
The first issue considered by the supreme court was whether the
defendant's right to due process was violated when the state, following
his entry of an Alford plea, later revoked his probation for
failing to successfully complete a sex offender treatment program that
required him to admit his guilt. Writing for a unanimous supreme court,
Justice Wilcox concluded that the defendant's right to due process was
not violated by the revocation of his probation. The court rejected the
defendant's argument that acceptance of an Alford plea
necessarily contemplates that defendants will be allowed to maintain
their factual innocence, even while completing the terms of probation
that have been imposed upon them. A defendant's protestations of
innocence under an Alford plea extend only to the plea itself.
Whatever the reason for entering an Alford plea, the fact
remains that when defendants enter such a plea, they become convicted
offenders and are treated no differently than they would be had they
gone to trial and been convicted by a jury.
The supreme court next considered whether the circuit court's failure
to inform the defendant at the time of his Alford plea that he
would be required to admit his guilt during a sex offender treatment
program rendered that plea unknowing and involuntary in violation of his
right to due process. The court concluded that it was not. It is well
established that in informing defendants of their rights, courts are
only required to notify them of the "direct consequences" of their
pleas. Defendants do not have a due process right to be informed of
consequences that are merely collateral to their pleas. The court
concluded that the circuit court was not required to inform Warren that
his probation could be revoked for failing to take responsibility for
his actions because it was only a collateral consequence of his
conviction.
Next the court considered whether the state breached the
Alford plea agreement and thereby violated the defendant's
right to due process when it revoked his probation solely on his
continued assertion of innocence. The court concluded that the
defendant's argument on this point was based upon the faulty premise
that an Alford plea is a promise that the defendant will never
have to admit his guilt. Because an Alford plea is not infused
with any special promises, the state did not change its position when it
revoked his probation for failing to admit guilt during probationary
treatment. Because the state never promised or assured the defendant
that he would be able to maintain his innocence for purposes other than
the plea itself, the court concluded that the state did not breach its
Alford plea agreement when it revoked the defendant's
probation.
In his final argument to the court, the defendant asserted that he
was denied his due process right to appointment of counsel for the
section 974.06 postconviction proceedings in this case. The supreme
court began its analysis of this issue by noting the well-established
principle that an indigent defendant has a constitutional right to
appointed counsel on his or her first direct appeal of right from a
conviction. The due process clause, however, does not require
appointment of counsel for discretionary appeals. The defendant's
postconviction relief pursuant to section 974.06 in this case was not a
direct appeal from a conviction. Rather, a section 974.06 proceeding is
considered to be civil in nature and authorizes a collateral attack on a
defendant's conviction. Defendants do not have a constitutional right to
counsel when mounting collateral attacks upon their convictions, such as
the postconviction motion involved here. Appellate courts retain the
discretion to appoint counsel to an indigent defendant upon appeal from
a denial of a section 974.06 motion, but the court declined to exercise
such discretion in this case.
Finally, the court paused to once again call for heightened diligence
on the part of circuit courts in accepting Alford pleas -
particularly in cases involving sex offenses. The acceptance of
Alford pleas is entirely discretionary, and circuit courts
should apply a critical eye toward accepting such pleas. An inherent
conflict arises when a charged sex offender enters an Alford
plea: The offender cannot maintain innocence under the Alford
plea and successfully complete the sex offender treatment program, which
requires the offender to admit guilt. The court strongly advised circuit
judges to give Alford-pleading defendants an instruction at the
time of the plea that their protestations of innocence extend only to
the plea itself, and do not serve as a guarantee that they cannot
subsequently be punished for violating the terms of their probation that
require an admission of guilt.
Hearsay - Prosecutor's Statements - Defamation - Immunity -
Perjury
State v.
Cardenas-Hernandez, No. 96-3605-CR (filed 30 June 1998)
The supreme court, in an opinion written by Justice Steinmetz,
affirmed the defendant's conviction for two counts of perjury. There
were two issues before the court.
First, did the judge erroneously exclude evidence in the perjury
trial of statements made by a prosecutor during preliminary proceedings
in a prior drug case? The prosecutor's statements were not admissible as
admissions by a party opponent under section 908.01(4), particularly as
statements by a speaking agent or by a regular agent. An issue of first
impression in Wisconsin, the court turned to federal precedent that
recognized that attorneys, even government attorneys, can fall within
the admissions exemption under certain circumstances. The court rejected
a per se prohibition on the use of a prosecutor's prior statements and
set forth the "guidelines" that trial judges should weigh in evaluating
the statements' admissibility. On this record, the judge properly
excluded the prosecutor's earlier statements. (Although "factual
assertions," the prosecutor's statements were not "clearly inconsistent"
with assertions made by the State at the perjury trial.) The court also
rejected several other hearsay theories as well as the claim that the
defendant was denied the right to present a defense.
Second, the supreme court held that the "absolute civil privilege for
defamatory statements made in a judicial proceeding applies in a
criminal prosecution for defamation under Wis. Stat. sec. 942.01 when
the statements are perjurious as well as defamatory." For this reason,
the supreme court upheld the court of appeals' reversal of the
defendant's criminal defamation convictions. The convictions for perjury
were, however, lawful because the perjury statute does not except
"otherwise privileged" statements. Wis. Stat. § 946.31.
Employment Law
Married Employees - Public Employers - Health Insurance Limits
Motola v. LIRC, No.
97-0896 (filed 30 June 1998)
Connie went to work for the City of New Berlin in 1977 and was
enrolled for single health insurance coverage that met her own medical
needs. In 1980 she married another city employee. In 1984 they requested
family coverage. Under the city's "nonduplication policy," Connie's
health insurance status was changed from that of a single coverage
enrollee to that of a "dependent" under the family coverage
enrollment.
The issue before the supreme court concerned whether, under
Braatz v. LIRC (1993), any employer could limit its married
employees' coverage under one health insurance policy. The supreme
court, in an opinion written by Justice Geske, held that "a public
employer, as defined in Wis. Stat. sec. 40, and the regulations thereto,
may limit its married co-employees to coverage under one family health
insurance policy of their marital status," and therefore the
nonduplication policy did not violate the Wisconsin Fair Employment Act
(WFEA). The court interpreted the pertinent statutes as creating an
"implied exception" to WFEA's marital status discrimination clause. The
court declined to address the status of nonpublic employers.
Chief Justice Abrahamson dissented.
Environmental Law
Statute of Limitations - Discovery Rule - Solid Waste Law - Spills
Law
State v. Chrysler Outboard
Corp., No. 96-1158 (filed 19 June 1998)
The State brought an environmental enforcement action against the
defendants under the Solid Waste Law, Wis. Admin. Code RD 51.05-.06. The
trial judge dismissed the action because it had not been filed within
the statute of limitations. The judge also dismissed a claim against
Chrysler Outboard Corp. under the Spills Law, Wis. Stat. section
144.76(3)(1977), because Chrysler's alleged dumping preceded the
effective date of the Spills Law. The court of appeals certified the
case to the supreme court.
The supreme court, in an opinion written by Justice Wilcox, affirmed
in part and reversed in part. The court held "that the discovery rule is
not applicable to the State's environmental enforcement action under the
Solid Waste Law, and that the Spills Law is applicable in actions by the
State to compel remediation of, and to impose penalties for, hazardous
substance spills, which although initially caused in part by actions
preceding the statute's May 21, 1978 effective date, continue to
discharge after that date."
Justice Bablitch concurred in part and dissented in part, arguing
that the discovery rule should extend to enforcement actions under the
Solid Waste Law.
In a separate opinion Justice Geske, joined by Chief Justice
Abrahamson and Justice Bradley, joined the majority's holding regarding
the Solid Waste Law and concurred in the mandate permitting remediation
under the Spills Law. They dissented from that part of the opinion that
permitted the State to impose forfeitures for Spills Law violations
because it violated the ban against ex post facto punishment.
Public Trust Doctrine - Suits by Citizens Against Private Parties
Alleged to Have Been Inadequately Regulated by the DNR
Gillen v. City of
Neenah, No. 96-2470 (filed 2 July 1998)
This case involves portions of Little Lake Butte des Morts in
Winnebago County. In chapter 52, Laws of 1951, the Legislature granted
right, title, and interest into certain submerged land near the south
shore of the lake (referred to as the Legislative Lakebed Grant) to the
City of Neenah for a "public purpose." In 1995 Minergy Corporation
sought a lease from the city to construct and operate a commercial
facility on approximately five acres of the grant area. The facility
would process paper sludge generated by paper mills in the Fox Valley
area into a glass aggregate product. The Department of Natural Resources
(DNR), the city of Neenah, Minergy Corporation and another company
signed a stipulation and settlement agreement which, among other things,
provided that the DNR asserted that the proposed Minergy facility would
be an impermissible public trust use and violate the Legislative Lakebed
Grant, relevant portions of Wis. Stat. chapter 30, and the public trust
doctrine as developed under Wisconsin law, but that regardless of the
foregoing, based on the historical development of the Grant Area, to
which the DNR failed to object, the DNR agreed that it would not pursue
enforcement action under its authority relating to the public trust
laws.
The plaintiffs (who were private citizens as well as organizations)
brought suit challenging the legality of the Minergy lease. As it
relates to this appeal, the critical issue was whether the public trust
doctrine enables a citizen to directly sue a private party whom the
citizen believes was inadequately regulated by the Department of Natural
Resources. This is the question that was certified by the court of
appeals to the supreme court. In a per curiam opinion the court held
that the plaintiffs could bring suit under Wis. Stat. section 30.294
against the defendants to abate a public nuisance.
The public trust doctrine recognizes that the state holds beds of
navigable waters in trust for all Wisconsin citizens. It enables the
state, or any person suing in the name of the state for the purpose of
vindicating the public trust, to assert a cause of action recognized by
the existing law of Wisconsin. Wis. Stat. chapter 30, enacted pursuant
to the public trust doctrine, governs navigable waters and navigation in
Wisconsin. Section 30.294 provides that "every violation of this chapter
[30] is declared to be a public nuisance and may be prohibited by
injunction and may be abated by legal action brought by any person. "
Thus, section 30.294 expressly contemplates citizens' suits irrespective
of the DNR's actions or enforcement decisions.
Another issue in the case was whether plaintiffs were barred from
bringing a claim under section 30.294 because they failed to comply with
the notice of claims statute. Section 893.80(1)(b) prevents a plaintiff
from bringing a cause of action against a governmental body unless the
plaintiff provides to the governmental body a notice of claim. However,
the court concluded that the failure to comply with the notice of claim
statute in this case did not bar the plaintiffs' claims brought in
accord with section 30.294. Section 30.294 expressly allows a plaintiff
to seek immediate injunctive relief to prevent injury. The enforcement
procedures provided in this statute are inconsistent with the notice of
claims law, which requires a plaintiff to provide a governmental body
with a notice of claim and to wait 120 days or until the claim is
disallowed before filing an action. Said the court, "we conclude that
there is an exception to Wis. Stat. sec. 893.80(1)(b) where the
plaintiffs' claims are brought pursuant to the public trust doctrine
under Wis. Stat. sec. 30.294, which provides injunctive relief as a
specific enforcement remedy. " Chief Justice Abrahamson filed a
concurring opinion that was joined by justices Geske and Bradley.
Evidence/Criminal Procedure
Character Evidence - Evidence of Witness's Character for
Truthfulness - Rule of Completeness - Prosecutor's Duties When Defense
Seeks to Interview State's Witness
State v. Eugenio,
No. 96-1394-CR (filed 25 June 1998)
The defendant was charged with one count of "first-degree sexual
assault of a child" and one count of "threats to injure." The charges
arose from an incident four years earlier in which the defendant
allegedly sexually abused a 6-year-old child and then threatened to kill
her if she told anyone.
As part of the pretrial investigation, the defendant's attorneys
asked the victim's mother to allow the child to speak with a defense
investigator. The victim's mother contacted the district attorney's
office, which arranged for the meeting to occur in that office. At the
scheduled meeting between the investigator and the child, an assistant
district attorney neither actively encouraged cooperation with the
defense nor discouraged such cooperation. She advised the victim's
mother that the defense investigator was present to elicit information
from the child for later use in court. The mother subsequently refused
to allow her child to be questioned by the investigator, concluding that
the investigator's purpose was to "mess up" her daughter. The defendant
asked the circuit court to dismiss the case, asserting prosecutorial
misconduct because the district attorney had a duty to encourage the
victim's cooperation with the defense investigation. The circuit court
denied the motion.
At trial, the defense used its opening statement to highlight
inconsistencies in the victim's statements and to explain the defense
theory that the victim made those statements to get attention. The
defense continued this concentration on inconsistencies during its
cross-examination of the victim.
Considering defense counsel's assertions at opening statements to be
an attack on the victim's character, the circuit court allowed the state
to rehabilitate the victim's character by offering the testimony of the
victim's school counselor, who testified that in her opinion the victim
was a truthful individual. Based on the rule of completeness, the
circuit court also admitted the highlighted inconsistent statements in
their entirety.
The jury convicted the defendant on the sexual assault count. The
court of appeals affirmed. The supreme court, in a unanimous decision
authored by Justice Bradley, affirmed the court of appeals.
The first challenge to the conviction involved the circuit court's
admission of character testimony offered by the state to rehabilitate
the truthfulness of the victim. Wis. Stat. section 906.08(1) will allow
a witness's penchant for truthfulness to be the topic of rehabilitative
evidence only when "the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or otherwise." In this
case the supreme court concluded that where an attorney attacks the
character for truthfulness of a potential witness in an opening
statement, testimony presented to rehabilitate that witness may be
appropriate. But this is true only when there has truly been an attack
on character. Character is evidenced by a pattern of behavior or method
of conduct demonstrated by an individual over the course of time. Thus,
allegations of a single instance of falsehood cannot imply a character
for untruthfulness just as demonstration of a single instance of
truthfulness cannot imply the character trait of veracity. Viewing the
attack on a witness in its context, the circuit court must believe that
a reasonable person would consider the attack on the witness to be an
assertion that the witness is not only lying in this instance, but is a
liar generally. Only in such circumstances will rehabilitative evidence
be appropriate.
The determination of whether the character of truthfulness of a
witness is being challenged is a matter left to the proper discretion of
the circuit court. The circuit court here determined that the victim's
character for truthfulness was under attack through assertions that the
victim repeatedly lied to gain attention. Like the court of appeals, the
supreme court concluded that this determination was not an erroneous
exercise of discretion.
The court next considered the cross-examination of the victim by the
defense where there was extensive questioning about perceived
inconsistencies in the victim's statements to other individuals about
the abuse. In response, the circuit court permitted the state to offer
the challenged statements in their entirety to show consistency on
significant factual issues. The circuit court based its admission of the
statements on the rule of completeness.
The rule of completeness as codified in Wis. Stat. section 901.07
applies to written and recorded statements. In this case, the real
question debated by the parties was whether any form of the common law
rule of completeness, which included oral statements, survived
codification of section 901.07. The supreme court concluded that the
rule of completeness, as it has historically applied to oral statements
under the common law, is encompassed within the bounds of the codified
Wisconsin Rules of Evidence.
Section 906.11 provides that the judge shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to make the interrogation and presentation
effective for the ascertainment of the truth, avoid needless consumption
of time, and protect witnesses from harassment or undue embarrassment.
The court concluded that this statute encompasses the rule of
completeness for oral statements. The rule of completeness, however,
should not be viewed as an unbridled opportunity to open the door to
otherwise inadmissible evidence. Under the rule the court has discretion
to admit only those statements that are necessary to provide context and
prevent distortion. In this case the circuit court did not err in
exercising its discretion to admit the additional statements under the
rule of completeness.
Finally, the court addressed the defendant's contention that the
circuit court should have dismissed his case based on prosecutorial
misconduct as described above. The court concluded that there was no
prosecutorial misconduct by the assistant district attorney in this
case. While prosecutors may not discourage witnesses from cooperating
with the defense, they also are not under an affirmative legal duty to
encourage such cooperation.
Highways
Removal of Outdoor Advertising Signs - Wis. Stat. Section 84.30 as
Exclusive Remedy - Measure of Just Compensation
Vivid Inc. v.
Fiedler, No. 96-1900 (filed 2 July 1998)
This case involved the proper determination of just compensation for
outdoor advertising signs, owned by Vivid Inc., which the State of
Wisconsin removed in 1989 in conjunction with a highway improvement
project along Interstate 90 near Janesville.
All members of the supreme court agreed that the Legislature intended
that Wis. Stat. section 84.30 provide the exclusive statutory means by
which an advertising company may obtain just compensation for a
billboard ordered removed. [Section 84.30 is the Wisconsin adaptation of
the federal Highway Beautification Act.] All members of the court also
agreed that section 84.30 does not authorize an award of attorney fees.
There also was agreement that just compensation consists of the fair
market value of the property taken. With regard to outdoor advertising,
the court concluded that the value of the sign is derived largely from
the location of the sign. Therefore, "all right, title and interest in
and to the sign and leasehold relating thereto," as those terms are used
in the statute, must include not only the value of the sign structure
and leasehold value, but also the value of the location.
The justices split, however, with regard to the proper method for
determining just compensation. The opinion of the court, which was
authored by Justice Bablitch but which garnered the votes of only two
other justices, concluded that the circuit court did not erroneously
exercise its discretion "in admitting evidence from both the State and
Vivid regarding different valuation methods for the jury to determine
which method is more credible and more adequately reflects just
compensation." [In this case the State presented evidence using what is
known as the cost approach whereas Vivid presented evidence using both
the income approach and the market approach. The market approach uses a
gross income multiplier to value billboards by looking to the sale of
reasonably comparable property.]
Justice Bradley, who authored a concurring opinion that was joined in
by three other justices to form a majority of the court, wrote
separately because she did not subscribe to the lead opinion's "carte
blanche" approval of the gross income multiplier as a method of
determining just compensation or to the lead opinion's interpretation of
the cost approach method of valuation.
Jury Trials
Voir Dire - Strikes for Cause - Appellate Standard of Review
State v. Ferron, No.
96-3425-CR (filed 26 June 1998)
The defendant was charged with the crime of burglary. During jury
selection the circuit court denied his request to strike a juror for
cause after the challenged juror said he "would certainly try" and
"probably" could set aside his opinion that a criminally accused
defendant who was truly innocent would take the stand and testify on his
or her own behalf. According to the defendant, the circuit court's
action compelled him to exercise one of his statutorily granted
peremptory strikes to correct the court's error, thereby depriving him
of his right to due process under state law. The court of appeals
reversed, holding that the circuit court erroneously exercised its
discretion by failing to strike the juror for cause because his answers
revealed that he was not indifferent as required by Wis. Stat. section
805.08(1). The supreme court, in a majority decision authored by Justice
Wilcox, affirmed.
The first issue considered by the court was the appropriate standard
of review that appellate courts should employ upon review of a circuit
court determination that a prospective juror can be impartial. The court
held that the appellate courts should overturn a circuit court's
determination that a prospective juror can be impartial only where the
juror's bias is manifest. A juror's bias can appropriately be labeled as
"manifest" whenever:
1) the record does not support a finding that the prospective juror
is a reasonable person who is sincerely willing to put aside an opinion
or prior knowledge; or
2) the record does not support a finding that a reasonable person in
the juror's position could set aside the opinion or prior knowledge.
Applying this standard to the facts of this case, the court concluded
that the record does not support a finding that the prospective juror at
issue was a reasonable person who was sincerely willing to put aside his
opinion or bias. Accordingly, the defendant was deprived of his
statutorily defined right to due process of law when he was compelled to
use one of his peremptory challenges to correct the circuit court's
error.
Because the defendant was compelled to use one of his peremptory
challenges to correct the circuit court's error of law, his conviction
must be reversed. Such reversal is compelled by State v. Ramos,
211 Wis. 2d 12, 564 N.W.2d 328 (1997). In this case the state invited
the court to overrule the Ramos decision. The court declined to do
so.
It should be noted that in the course of its decision, the court
cautioned and encouraged circuit courts to strike prospective jurors for
cause when the circuit courts "reasonably suspect" that juror bias
exists. However, language in the court's earlier decision in Nyberg
v. State, 75 Wis. 2d 400, 249 N.W.2d 524 (1977), to the effect that
a trial court must honor challenges for cause whenever it may reasonably
suspect that circumstances outside the evidence may create bias or
appearance of bias was specifically overruled by the court in this
decision.
Finally, with regard to making a record, the supreme court indicated
that, during voir dire examinations, circuit courts are advised to
establish a thorough record that sets forth the court's rationale for
denying a motion to strike a juror for cause. Further, "the circuit
courts are also advised to err on the side of striking prospective
jurors who appear to be biased, even if the appellate court would not
reverse their determinations of impartiality. Such action will avoid the
appearance of bias, and may save judicial time and resources in the long
run."
Justice Bablitch filed a concurring opinion to answer Justice Geske
and Justice Bradley who filed dissenting opinions.
Juvenile Law
Delinquency Proceedings - Constitutionality of Statutes Abolishing
Right to Jury Trial
In the Interest of Hezzie
R., No. 97-0676
In the Interest of Luis
H., No. 97-0685
In the Interest of Ryan
D.L., No. 97-1109 (filed 3 July 1998)
These consolidated cases were before the supreme court for a
determination of the constitutionality of the elimination of the right
to trial by jury in juvenile delinquency cases pursuant to Wis. Stat.
section 938.31(2). The three juvenile respondents contended that the
elimination of a jury trial as part of a delinquency adjudication
violates their state and federal constitutional rights.
In a majority decision authored by Justice Crooks, the supreme court
concluded that those provisions of the Juvenile Justice Code (Wis. Stat.
chapter 938) that may subject a juvenile who has been adjudicated
delinquent to placement in an adult prison are criminal in nature.
Accordingly, the provisions of Wis. Stat. sections 938.538(3)(a)1,
938.538(3) (a)1m, and 938.357(4)(d) which subject a juvenile to
placement in an adult prison violate a juvenile's rights to a trial by
jury under article I, section 7 of the Wisconsin Constitution and the
Sixth and Fourteenth Amendments to the U.S. Constitution.
As described by the court, the statutes cited above allow for a
juvenile 17 years old or over to be placed in a Type l prison and
further provide that a juvenile 15 years old or over who is placed in a
Type 1 juvenile secured correctional facility may be transferred to the
Racine Youthful Offender Correctional Facility (a medium security state
prison) if the juvenile "presents a serious problem to the juvenile or
others." Each of these provisions provides that a juvenile adjudicated
delinquent may be housed with adult criminal offenders in adult state
prisons. Due to the potential placement in an adult prison under the
statutes, the court concluded that the juveniles face a "de facto
criminal sentence" and thus subject a juvenile to the consequences of a
"criminal prosecution" without the right to a trial by jury.
Accordingly, they are unconstitutional.
The court further concluded that the provisions cited above can and
must be severed from the current Juvenile Justice Code, consistent with
precedent from the Wisconsin Supreme Court and the Wisconsin
Legislature's express intent to sever statutory provisions when
necessary.
Finally, the court concluded that the remaining noncriminal portions
of chapter 938 are constitutional even absent the right to a trial by
jury, since juveniles do not have a state or federal constitutional
right to a trial by jury in the adjudicative phase of a juvenile
delinquency proceeding.
Justice Bradley filed a dissenting opinion that was joined in by
Chief Justice Abrahamson and Justice Geske.
Municipal Law
Zoning Violations - Equitable Power of Court to Deny Injunctive
Relief After Zoning Violation Established
Forest County v.
Goode, No. 96-3592 This case concerns the enforcement of county
zoning ordinances. Wis. Stat. section 59.69(11) provides, among other
things, that "[county zoning] ordinances shall be enforced by
appropriate forfeitures. Compliance with such ordinances may also be
enforced by injunctional order at the suit of the county or an owner of
real estate within the district affected by the regulation."
In this appeal the supreme court was asked to determine whether a
circuit court retains equitable power to deny injunctive relief after a
zoning ordinance violation has been proven. Forest County instituted
enforcement proceedings against the defendant for noncompliance with a
zoning ordinance. The county requested assessment of forfeitures and an
injunctive order compelling the defendant to comply with a setback
requirement of the county zoning ordinance. The circuit court denied the
county's request for an injunction but imposed a forfeiture.
The court of appeals reversed the circuit court's order denying
injunctive relief. It held that the statute quoted above does not give a
circuit court equitable power to deny injunctive relief after a zoning
ordinance violation has been proven.
The supreme court, in a majority decision authored by Justice Geske,
concluded that the statute gives the county or an owner of real estate
within the district affected by the zoning regulation the option of
asking a circuit court sitting in equity for injunctive relief as a
remedy for a zoning ordinance violation. However, the court also
concluded that the Legislature did not intend to eliminate the
traditional equitable powers of the court through section 59.69(11).
Accordingly, it held that when a circuit court is asked to grant
injunctive relief for a proven zoning ordinance violation, the statute
does not eliminate the circuit court's equitable power to deny
injunctive relief in a particular case.
Allowing the circuit court to balance the equities when an injunction
is requested under the statute will not render meaningless the entire
line of case law regarding the standard of unnecessary hardship that
must be met in order for a variance applicant to be properly granted a
variance. Instead, the circuit court, sitting in equity, should weigh
heavily the factors considered by boards of adjustment in determining
unnecessary hardship as well as traditional equitable considerations.
Equitable defenses, such as laches, estoppel, or unclean hands also
should be weighed in appropriate cases.
Once a zoning violation is established, a circuit court should grant
the injunction, except in those rare cases when it concludes, after
examining the totality of the circumstances, there are compelling
equitable reasons why the court should deny the request for an
injunction. The circuit court also possesses equitable power to fashion
an injunction that does justice. If the court is inclined to deny an
injunction, it should first explore alternatives to the requested full
injunction to determine whether a more equitably crafted injunction
might be appropriate.
Torts
Adoptions - Negligent Placement - Negligent Misrepresentation -
Statute of Limitations
Nierengarten v. Lutheran
Social Services of Wisconsin, No. 96-2187 (filed 1 July
1998)
Following their adoption of a child through the defendant's services,
the Nierengartens discovered that their child had Attention
Deficit/Hyperactivity Disorder (ADHD). Their complaint alleged negligent
placement and negligent misrepresentation by the placement agency. The
trial judge ruled that the plaintiffs' claims were barred by the statute
of limitations, but the court of appeals reversed on that issue.
The supreme court, in an opinion written by Justice Crooks, reversed.
The court held that the claims accrued on March 5, 1990, when the child
was diagnosed as suffering ADHD and the plaintiffs incurred related
medical expenses. On that date they could identify the alleged
tortfeasor, the placement agency, and they could identify the wrongful
conduct. This action was, however, subject to the three-year statute of
limitations in section 893.54 of the Wisconsin Statutes. Since the
plaintiffs did not file their complaint until June 20, 1995, the claims
are time barred.
Chief Justice Abrahamson, joined by Justice Bradley, dissented
because the pertinent issues could not be determined on summary
judgment. Justice Geske did not participate.
Worker's Compensation
Injuries Sustained by Traveling Employee - Recreational
Activities
CBS Inc. v. Labor and
Industry Review Commission, No. 96-3707 (filed 30 June
1998)
CBS hired Richard Kamps to assist in the television coverage of the
1994 Winter Olympic Games in Lillehammer, Norway. Kamps was to work as a
"runner" for CBS on the bobsled and luge events over a three-week
period. Kamps' duties required him to leave his home and stay in
Lillehammer during the run of the Olympics. CBS paid Kamps a daily wage
and provided meals and lodging.
One day CBS gave Kamps and his crew the day off from work. During
this free time, the crew members were free to do as they wished. Kamps'
immediate supervisor suggested that the crew go skiing as a group, which
they ultimately did. CBS provided the crew with transportation and free
ski lift passes. While skiing, Kamps fell and injured his knee.
Kamps commenced a worker's compensation claim with the Department of
Industry, Labor and Human Relations. The administrative law judge (ALJ)
dismissed his application for a hearing, ruling that snow skiing is not
usual and proper customary conduct of a traveling employee. Kamps filed
a petition for review by the LIRC. LIRC reversed the ALJ, concluding:
"The applicant was a traveling employee in a location where skiing "was
a reasonable form of recreation incidental to living. The activity was
encouraged and supported by the employer, even to the extent of
providing the applicant with a free ski lift pass. While the applicant
assumed some risk by going skiing, it was not an unreasonable risk nor
one unexpected or unsanctioned by the employer. Based on the particular
facts and circumstances of this case, the commission finds that the
applicant's knee injury is compensable as an activity incidental to
living, within the meaning of [Wis. Stat. section 102.03(1)(f)]."
The circuit and appeals courts concluded there was credible and
substantial evidence to support LIRC's findings. The supreme court, in a
majority decision authored by Justice Geske, applied great weight
deference to LIRC's interpretation of the statute and affirmed its
interpretation because it was reasonable.
Section 102.03(1)(f) provides that "every employee whose employment
requires the employee to travel shall be deemed to be performing service
growing out of and incidental to the employee's employment at all times
while on a trip, except when engaged in a deviation for a private or
personal purpose. Acts reasonably necessary for living or incidental
thereto shall not be regarded as such a deviation. Any accident or
disease arising out of a hazard of such service shall be deemed to arise
out of the employee's employment."
The court concluded that this statute reflects a legislative intent
to make liability dependent on a relationship to the job, in a liberal,
humane fashion, with litigation reduced to a minimum. During the period
of being at ease, the traveling employee is not required to seek
immediate seclusion in a hotel and remain away from human beings at the
risk of being charged with deviating from his employment. When a
traveling employee engages in a deviation for a personal or private
purpose, the agency or reviewing court still must consider whether the
deviation is an act reasonably necessary for living or incidental
thereto.
In this case the focus of the court's inquiry was not whether
recreational skiing by a traveling employee is generally compensable.
Rather, its focus was on the reasonableness of LIRC's determination
based upon the particular facts and circumstances in this case. LIRC's
conclusion that Kamps' downhill skiing was incidental to his employment
was supported by credible and substantial evidence. That evidence
includes the fact that on the day of injury, Kamps learned that there
were no competitions scheduled for his crew to cover. While CBS gave
Kamps and his crew permission to do as they pleased, the ski trip took
place at the suggestion of Kamps' supervisor. Additionally, the crew
used CBS vehicles to take them to the ski area.
Before concluding its decision, the court addressed language used
below in the court of appeals to the effect that the intermediate
appellate court concluded as a matter of law that a traveling employee's
recreational activities always fit within the presumption of the statute
quoted above. That language was overruled by the supreme court.
Justice Crooks filed a concurring opinion that was joined by Justice
Wilcox.
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
