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 |

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.

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.

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.

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.

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.

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.