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 |

Attorney Fees - Incivility - Sanctions

Aspen Services Inc. v. IT Corp., No. 97-0897 (filed 10 June 1998) (ordered published 29 July 1998)

IT Corporation leased equipment from Aspen Services. In a relatively straightforward contract dispute, a jury awarded Aspen about $18,300 in unpaid rent against IT. The judge ruled that IT's counterclaims were precluded by the lease. Under terms of the lease, Aspen also sought to recover $112,985 in attorney fees, costs, and disbursement. Based on the incivility of Aspen's attorneys in the conduct of the litigation, the judge awarded only $68,000.

The court of appeals, in an opinion written by Judge Anderson, affirmed in an opinion that analyzes a judge's authority to control and sanction incivility among lawyers. Appellate courts will defer to the exercise of discretion by trial judges, who have been charged "to exercise more control by appropriate sanctions." Here the trial judge characterized the attorneys' behavior as "overtrial" and concluded that the attorney fees were out of proportion to the result.

Trial courts and appellate courts have statutory and inherent powers to enforce civility in the courtroom. This authority is independent from Supreme Court Rule (SCR) 62, "Standards of Courtesy and Decorum for the Courts of Wisconsin." Although SCR 62 cannot be enforced by the Board of Attorneys Professional Responsibility, a judge can use it as a basis for imposing sanctions for incivility. In this case, the judge properly exercised his inherent and statutory power under section 802.05 of the Wisconsin Statutes in finding that "Aspen's attorney engaged in conduct which impeded IT's efforts to settle the dispute prior to the start of the lawsuit, failed to attempt to expeditiously reconcile differences through negotiations and the character of the services rendered was inappropriate." Nor was it necessary for the judge to particularize the offending conduct as opposed to characterizing counsel's general behavior based on the entire record. Judge Anderson's opinion provides numerous examples of the attorneys' incivility based on the record. In sum, the attorneys' behavior was "unprofessional, repeated, and egregious."

The court also rejected the attorneys' argument that the trial judge had failed to exercise appropriate control. The judge "conducted himself in an exemplary manner when confronted with contentiousness between the attorneys." Not only did the judge make "every effort to keep the attorneys focused on the real issues in dispute," but "[h]e also recognized that the efficient use of limited judicial resources was not served by micro-managing the parties' discovery disputes."

Finally, the court took up several issues relating to costs and expenses. The claim that the judge miscalculated the costs of photocopying should have been raised at the trial court level; thus, the issue was waived. The judge also exercised appropriate discretion in assessing the costs for a referee on discovery disputes and the cost of a videotape deposition. The judge properly considered the misbehavior of Aspen's attorneys in gauging allowable costs.

Exculpatory Evidence - Hearsay - Harassment - Stalking

State v. Sveum, No. 97-2185-CR (filed 7 May 1998) (ordered published 29 July 1998)

The defendant was convicted of stalking, harassment, violating a harassment order, and criminal damage to property. Affirming the convictions, the court of appeals, in an opinion written by Judge Dykman, ruled that the evidence was sufficient and that alleged exculpatory evidence was properly excluded.

In order to support his alibi defense, the defendant called a third-party witness who was asked to testify to a statement made by the defendant. The trial judge excluded the testimony as hearsay. Upholding this ruling, Judge Dykman explained that the statement was offered for the truth of the matter asserted; namely, the date that the defendant visited the witness to pick up a motorcycle. The court refused to consider the statement's admissibility under section 908.03(3) (statements of present state of mind) because he failed to offer it under this exception at trial.

The court of appeals also addressed the sufficiency of the evidence supporting several counts and in the process interpreted several statutory terms. Under the harassment statute, section 947.0133(1m)(b), the "act" of harassment must be "accompanied by a credible threat." The term "accompany" means "to exist or occur in conjunction or association with." Threats uttered before the "act" of harassment can satisfy the statute as long as they still "exist" at the time of the act; that is, they produce the requisite fear in the victim. Under the stalking statute, section 940.32, the defendant's "acts" must induce fear in the victim; the State does not have to establish that the defendant's "course of conduct" induced the fear.

Jury Trials - Dismissal of Juror During Trial for Cause

State v. Williams, No. 97-1276-CR (filed 9 June 1998) (ordered published 29 July 1998)

The defendant was tried before a jury of 13 on numerous felony charges. Before closing arguments and the court's instructions to the jury, the trial court dismissed one of the 13 jurors because it had come to the court's attention that this juror did not respond truthfully to certain questions on voir dire. The defendant argued that dismissal of this juror was error.

In a decision authored by Judge Fine, the court of appeals disagreed. Although a trial court in Wisconsin may not substitute an alternate for a deliberating juror, it does have the discretion to discharge a regular juror for cause during trial. Failure to respond truthfully to voir dire questions is sufficient cause to discharge a juror during the trial. Contrary to the defendant's contention, specific proof of bias is not required, as it is when a party seeks to overturn an adverse verdict. Moreover, a litigant has no right to insist on the retention of a juror merely because that juror might be biased in the litigant's favor.

In this case the trial court weighed the appropriate considerations and determined that the integrity of the trial and of the jury deliberation would be advanced if the case were given to the 12 remaining jurors. This, said the court of appeals, was a reasonable decision under the circumstances.

Revocation of Probation - Certiorari Review
in the "Court of Conviction"

Drow v. Schwartz, No. 97-1867 (filed 19 May 1998) (ordered published 29 July 1998)

The defendant pled no contest to several felony offenses. The court withheld sentence and placed him on probation. Ultimately, probation was revoked and the defendant was imprisoned. The revocation decision was affirmed by administrative appeal and the defendant filed a petition for a writ of certiorari to challenge the revocation. A hearing was held in circuit court and the court affirmed the revocation.

On appeal the defendant contended that his petition for writ of certiorari was not heard in the "court of conviction." He relied upon State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971). The Johnson court concluded that the Legislature provided probationers and parolees a right to a revocation hearing, and that judicial review of that hearing is to be "directed to the court of conviction." In this case the court of appeals interpreted "court of conviction" to mean precisely what it simply provides. In so holding, it rejected the state's argument that Johnson's requirement is satisfied if the petition is heard by any circuit court sitting in the county of conviction. It granted the defendant relief because his writ of certiorari was heard in a different branch of the circuit court from that in which he was originally convicted. In footnote the court indicated that it was not suggesting that Johnson requires that the same judge who sentenced the defendant must hear the writ of certiorari.

Prison Discipline - Certiorari Review

State ex rel. Luedtke v. Bertrand, No. 97-3238-W

State ex rel. Dowdley v. Circuit Court for Dane County, No. 98-0107-W (filed 11 June 1998) (ordered published 29 July 1998)

Prisoners Luedtke and Dowdley petitioned for supervisory writs directing circuit courts to grant their petitions to commence certiorari actions under Wis. Stat. section 814.9 without payment of fees. In a decision authored by Judge Dykman, the court of appeals held that in deciding whether a petitioner's proposed action fails to state a claim, the circuit court should review the certiorari petition using the same standard that applies to ordinary civil complaints. Second, this standard of review is not "discretionary," but rather, whether a certiorari petition states a claim is a question of law, as with other civil complaints. Third, even though a certiorari petition may allege an apparently insubstantial harm, such as minimal loss of recreational time, the circuit court must consider that a more complete development of the case may reveal collateral consequences of prison disciplinary decisions. Finally, the certiorari petition need not conclusively establish that an error was committed in order to state a claim.

Erroneous Jury Instructions - Defendant's Presence

State v. Peterson, No. 97-3294-CR (filed 9 June 1998) (ordered published 29 July 1998)

The court of appeals affirmed the defendant's conviction for battery to a child. The battery involved the use of excessive force in disciplining his step-daughter.

Judge Myse, writing for the court, held that the trial judge's error in instructing the jury on the "privilege" to use force did not prejudice the defendant. The focus throughout the trial was on whether the force was "excessive." Thus, the court refused to eliminate harmless error analysis when scrutinizing erroneous substantive jury instructions.

The court also rejected the argument that error occurred when the judge responded to the jury's questions without securing either the defendant's presence or a waiver. Violations of the defendant's right to be present are subject to harmless error analysis. Under section 971.04 of the Wisconsin Statutes, the defendant has a statutory right to be present at various proceedings. Even assuming that the trial court violated this statute, any error was harmless because the defendant's lawyer was present, the defendant failed to show what difference his presence would have made, and the trial court properly responded to the jury's inquiry.

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