Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Attorneys | Criminal Procedure | Evidence | Juvenile Law |
| Municipal Law | Torts | Worker's Compensation |

Jury Deliberations - Submitting Exhibits - Witness's Statements - Experts

State v. Mayer, No. 97-3664-CR (filed 2 June 1998) (ordered published 29 July 1998)

The court of appeals, in an opinion written by Judge Myse, affirmed the defendant's conviction for battering a woman that he later married. The altercation occurred at a bar before the two were married. An eyewitness provided a written statement to police describing the battery. At trial, the victim recanted but the jury heard the eyewitness's testimony and the judge received her written statement into evidence. During deliberations the jury asked to see the written statement. The trial judge permitted the jury to view the exhibit because it rebutted allegations that she was too intoxicated to be accurate.

A judge must consider three issues when submitting exhibits to the jury: 1) Will it assist the jury? 2) Will the exhibit prejudice a party? and 3) Is there a risk that the jury will use the exhibit improperly? The written statement's "coherence and neatness" undoubtedly assisted the jury in assessing whether the witness was too intoxicated to be credible. Although the "general rule" in Wisconsin "is to read the statement to a deliberating jury rather than submitting it," the jury in this case had a "valid independent need to physically examine the statement. " Finally, there was little risk of misuse because the statement contained no inadmissible evidence.

The court of appeals also ruled that expert testimony on "battered women's syndrome" (BWS) was properly admitted despite the defendant's claim that BWS testimony is inappropriate in cases of a "single assault." The opinion canvasses the case law on BWS and the admissibility of expert psychological testimony to assist a jury.

"Reverse Waivers" - Wis. Stat. section 970.032(2)
Not Unconstitutionally Vague

State v. Armstead, No. 97-3056-CR (filed 23 June 1998) (ordered published 29 July 1998)

Wis. Stat. section 970.32(2) provides that, with respect to certain juveniles charged in the first instance in adult court, the adult court shall retain jurisdiction unless the child proves by a preponderance of the evidence all of the following: 1) that, if convicted, the child could not receive adequate treatment in the criminal justice system; 2) that transferring jurisdiction to the juvenile court would not depreciate the seriousness of the offense; and 3) that retaining jurisdiction is not necessary to deter the child or other children from committing the violation of which the child is accused under certain statutorily specified circumstances.

In this case the juvenile claimed that these "reverse waiver" criteria are unconstitutionally vague. In a decision authored by Judge Curley, the court of appeals disagreed. Responding to the specifics of the defendant's attacks, the court concluded that the terms "adequate treatment," "depreciate the seriousness of the offense," and "necessary to deter the child or other children" are fairly definite. The terms provide trial courts with standards to use in deciding whether to retain jurisdiction, and do not require or allow trial courts to create their own standards. Although the standards are strict and therefore make it difficult for juveniles to prove that their case meets the criteria, this does not make the standards vague. Said the court, strictness and vagueness are not synonymous. Accordingly, the court concluded that section 970.032(2) is not unconstitutionally vague.

Zoning - Local Rule Limiting the Number of Variance Requests
for the Same Property

Tateoka v. City of Waukesha Board of Zoning Appeals, No. 97-1802 (filed 24 June 1998) (ordered published 29 July 1998)

The City of Waukesha Board of Zoning Appeals has adopted a rule regarding rehearings and reconsiderations of zoning variance requests. It provides that "rehearings, reconsiderations and new applications seeking the same relief concerning the same property after a previous application has been denied will not be heard by the Board of Appeals unless a substantial change of conditions or circumstances has intervened between the time the matter was first decided by the Board of Appeals and the subsequent application. A change of ownership or the passage of time without additional conditions or circumstances will not justify another hearing before the Board."

Writing for the court of appeals, Judge Nettesheim concluded that the Board of Appeals did not exceed its jurisdiction when it adopted this rule and that the rule does not conflict with Wis. Stat. section 62.23(7)(e)6, which governs the time period in which the Board should hear and decide a variance request and the notice which is to be given before doing so. The appellate court further held that the rule is reasonably related to the Board's legitimate interest in efficiency and in the finality of its decisions. As such, it did not violate the petitioner's right to due process and equal protection.

In the course of its opinion the appellate court noted that respected commentators in the area of municipal law have observed that a rule such as the one at issue in this case is widely accepted.

Bad Faith - Third Parties

Ristow v. Threadneedle Ins. Co., No. 97-0309 & 97-0678 (filed 16 June 1998) (ordered published 29 July 1998)

A truck driver was injured while working at a port in South Carolina. He filed a claim with the port's liability insurer but never received any money. The driver then began this bad faith action against the port's liability insurer and others. The circuit court dismissed the complaint.

The court of appeals, in an opinion written by Judge Anderson, affirmed. First, the court flatly refused to extend the tort of bad faith against insurers to cases where third-party claimants have "settled" their claim with the insurer which then breaches the settlement. The supreme court had previously rejected this extension in Kranzush v. Badger State Mutual Casualty Co. (1981). Second, the plaintiffs' breach of contract claim also was properly dismissed because it had been filed after the South Carolina statute of limitations had expired. South Carolina's statute applied by virtue of Wisconsin's borrowing statute, section 893.07(1). Moreover, the supreme court had recently held that the borrowing statute applies to contract actions. Abraham v. General Casualty Co., (1998). The last significant event giving rise to the plaintiffs' claims was the alleged breach of the settlement, which occurred in South Carolina.

Compensation for Medical Treatment -
Employee's Two Choices of Physicians

Hermax Carpet Marts v. Labor and Industry Review Commission, No. 97-1119 (filed 23 June 1998) (ordered published 29 July 1998)

Wis. Stat. section 102.42 of the Worker's Compensation Law requires an employer to compensate an injured employee for his or her medical treatment, but restricts the employee to two choices of practitioners. Among the issues in this case was whether the employee exceeded his two choices under the statute.

In a decision authored by Judge Curley, the court of appeals concluded that, for purposes of section 102.42, an employee "chooses" a practitioner by seeking treatment from that practitioner and by seeking reimbursement for that practitioner's expenses from the employee's employer or its insurance carrier. In this case, although the injured employee sought treatment from four practitioners, he only sought reimbursement for the expenses related to two practitioners. Therefore, as a matter of law, he did not exceed his choice of physicians under section 102.42 even though he sought reimbursement for the expenses of the first and fourth practitioners who treated him.

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.