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 |

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.

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.

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.

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.

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.

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.

Next Page