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    Wisconsin Lawyer
    September 01, 1998

    Wisconsin Lawyer September 1998: Supreme Court Digest

    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


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