Vol. 72, No. 2, February 1999
Court of Appeals Digest
By Prof. Daniel
D. Blinka & Prof. Thomas J. Hammer
| Attorney Fees | Attorneys
| Civil Procedure | Criminal Law
|
| Criminal Procedure | Disability
Law | Evidence | Family Law
|
| Insurance | Motor
Vehicle Law | Nuisance
| Real Property |
| Sexual Predator Law | State Government | Torts
|
| Worker's Compensation |
Zoning |
Attorney Fees
WEJA - "Market Rate" - "Special
Factors"
Stern v. Wis. Dept.
of Health and Family Services, No. 98-1493 (filed 21 Oct.
1998) (ordered published 18 Nov. 1998)
This case concerns the proper amount of attorney fees. The
underlying action involved a termination of a person's medical
assistance benefits by the DHFS without prior written notice.
Under the Wisconsin Equal Access to Justice Act (WEAJA) a successful
plaintiff can recover attorney fees at "market rate,"
not to exceed $75 per hour. Trial courts can award higher amounts
if "special factors" exist, such as an unusually complex
case.
In the trial court, the successful plaintiff argued for attorney
fees in excess of $75 per hour based on the complexity of the
law relating to Medicaid and Supplemental Security Income. In
the alternative, the plaintiff asked for a cost of living increase.
The judge granted the cost of living increase, using 1981 as
the base year for calculating the percentage increase.The judge
did not address the special factor increase.
The court of appeals, in an opinion written by Judge Brown,
modified the order. The court agreed with DHFS that the appropriate
base year was 1985, not 1981. The trial judge used 1981 because
it was the effective year for the federal legislation on which
the WEAJA was modeled. The WEAJA, however, went into effect in
1985.The Legislature's intent was that 1985 serve as the
base year for determining cost of living increases.
The court of appeals also addressed the "special factors"
argument. From its review of the undisputed facts of record,
the court of appeals held that the issues in this case were not
unusually difficult - "it is well established that
notice is required before the termination of public assistance
benefits." Other cases might well present special factors
where they necessitate an "understanding of the complex
interaction between state and federal law."
Terminated Employees - Fiduciary Duty -
Wage Claims - Wis. Stat. chapter 109
Jacobson v. American
Tool Companies Inc., No. 97-2219 (filed 14 Oct. 1998) (ordered
published 18 Nov. 1998)
In this case the plaintiff claimed that a company violated
his employment contract when it refused to pay his stock appreciation
rights after it terminated his employment. The circuit court
awarded a judgment in the plaintiff's favor.
The court of appeals, in an opinion written by Judge Anderson,
affirmed in a decision that addressed three issues. The first
two issues involved well-accepted principles of law as applied
to the facts. First, the credible evidence supported the trial
court's finding that the plaintiff was awarded the stock
rights before he was terminated. Second, the evidence also established
that the plaintiff's actions, which involved his dual role
as corporate officer and employee, were "fair and reasonable"
and were not a breach of a fiduciary duty. Third, and most significantly,
the court of appeals agreed that the plaintiff was entitled to
attorney fees under chapter
109 of the Wisconsin Statutes. Although section 109.03(6)
does not specifically mention "attorney fees," the
court concluded that they are incorporated into the "expenses"
permitted by the statute. Under applicable precedent, the failure
to award the plaintiff attorney fees would leave him in a "significantly
worse economic situation than when he began his lawsuit."
Such a reading undercuts the purpose of chapter 109, which is
"to ensure that employees receive their full wages."
Attorneys
Settlements - Representing Multiple Parties - Ethical
Duties -
"Crafty Lawyering"
Gustafson v. Physicians
Ins. Co., No. 97-3832 (filed 18 Nov. 1998) (ordered published
16 Dec. 1998)
The plaintiff alleged that he was damaged when several doctors
treated him for a cancer that he did not have. The plaintiff
was represented by an attorney who allegedly agreed to also represent
the interest of the subrogated health insurance carrier, MNIC,
in the action against the doctors and their malpractice insurer,
Physicians Insurance Co. (PIC). The plaintiff lost his claims
at trial. In negotiations after trial, the plaintiff agreed not
to appeal if PIC waived its right to tax costs against him. About
a month later PIC submitted a proposed order seeking attorneys
fees and taxable costs against MNIC. Plaintiff's counsel
and MNIC disputed whether counsel had agreed to represent MNIC's
interests. The judge eventually entered the order against MNIC
finding, in part, that "MNIC did not have an attorney-client
representation agreement" with plaintiff's counsel.
Judge Anderson, writing for the court of appeals, reversed.
First, the court found that there was a contract for legal services
between plaintiff's counsel and MNIC. Telephone conversations,
a letter, and other circumstances demonstrated that counsel agreed
to represent MNIC at trial.The court also rejected the plaintiff
counsel's argument that his agreement was limited to "proving
up" the plaintiff's medical expenses at trial. Rather,
counsel's obligation was to "represent MNIC's
subrogation interest and as its representative was required to
complete all actions."
The second issue concerned the adequacy of counsel's
representation on MNIC's behalf. Counsel was duty bound
to represent both plaintiff and MNIC. His agreement to waive
plaintiff's right of appeal in exchange for PIC's promise
not to tax costs against the plaintiff "did not represent
MNIC's interests at all." Quite the contrary, it appeared
that the settlement "benefited one client at the expense
of another."
Third, under these circumstances, the court held that "allowing
PIC to tax costs against MNIC 'would be drastically unfair.'"
The court was plainly troubled that "'crafty lawyering'
was at play in the settlement negotiations."
Finally, MNIC was not foreclosed from litigating costs because
it had failed to file a written waiver of its intent to be represented
by plaintiff's counsel pursuant to Wis. Stat. section
803.03(2)(b). More specifically, this "technical requirement"
did not bar MNIC's assertion that it had formed a representation
agreement with plaintiff's counsel.
Civil Procedure
Service of Process - Out-of-State Process Servers -
Fundamental Defect
Bendimez v. Neidermire,
No. 98-0656 (filed 13 Oct. 1998) (ordered published 18 Nov. 1998)
The plaintiff served the Wisconsin defendants by an out-of-state
process server. The trial judge concluded that any statutory
violation was merely a technical defect.
The court of appeals, in an opinion written by Judge Hoover,
reversed. The defendants were served by a "nonresident"
in violation of Wis. Stat. section
801.10. Under prevailing case law this constituted a fundamental
defect that entitled the defendants to summary judgment. Service
is "designed to attain jurisdiction over the defendants."
Case law requires "strict compliance" with the statutes
governing service, which is a "condition precedent to a
valid exercise of personal jurisdiction." Service by residents
assures that the process server "is readily subject to process
in the state of service in the event an issue arises as to service."
Garnishments - Defaults - Amended Complaint -
Time to Answer
Ness v. Digital Dial
Comm. Inc., No. 96-3436 (filed 14 Oct. 1998) (ordered published
18 Nov. 1998)
In this garnishment action the trial court ruled that the
20-day period in which to file an answer under Wis. Stat. section
812.11 began when the plaintiff filed the amended complaint,
even though the party was already in default. The court of appeals
reversed.
Writing for the court, Judge Anderson framed the issue as
follows: "When does an amended garnishment summons and complaint,
filed but not served on the defaulting party in accordance with
sec.
801.14(1), Stats., supersede the original complaint?"
The court held "that an amended pleading that does not present
any additional claims for relief against a defaulting party relates
back to the time the original complaint was filed; therefore,
it does not create another twenty-day response period for an
answer." A defaulting party already has disregarded its
opportunity for defending itself or presenting additional issues
or claims. Allowing a defaulting party a "second chance"
would create an absurd result under the statutes.
Criminal Law
Persistent Repeater Statute - Constitutionality -
Assault by Prisoner Statute
State v. Block,
No. 97-3265-CR (filed 28 Oct. 1998) (ordered published 18 Nov.
1998)
The defendant was incarcerated at the Oshkosh Correctional
Institute for second-degree murder and attempted first-degree
murder. His victim in this case was a social worker employed
at the institution. When she informed the defendant he was to
be moved to another institution, the defendant approached her
from behind while she was leaving the grounds and struck her
three or four times in the head with a padlock wrapped in a sock.
He was charged with battery by a prisoner (Wis. Stat. §
940.20(1)) and assault by a prisoner (Wis. Stat. §
946.43(1)). For the assault count he was charged as a persistent
offender under Wisconsin's "three strikes" law
codified at section
939.62(2m)(b). The defendant was found guilty on both counts;
he was sentenced to life imprisonment pursuant to the persistent
repeater statute.
On appeal the defendant challenged the constitutionality of
the persistent repeater statute on equal protection grounds.
He asserted that the legislature's classification of what
is considered a "serious" felony for purposes of the
three strikes statute is arbitrary and unreasonable. He gave
several examples where certain less serious felonies are counted
in the "three strikes" calculation whereas other more
serious felonies are not.
Applying the rational basis standard for analyzing the equal
protection claim, the court of appeals rejected the defendant's
challenge. The determination of which crimes deserve what penalties
is one of the core functions of the legislature, and it is within
the legislature's power to classify crimes, recognize different
degrees of harm that result from them, and decide which more
urgently need repression. Because the choices made by the legislature
in the persistent repeater statute did not rest on grounds wholly
irrelevant to the achievement of the state's objective,
the court declined to tamper with it.
The defendant also claimed that the state failed to prove
all of the elements of the assault by prisoner charge, specifically
arguing that the victim could not have been in apprehension of
a battery because it was a surprise attack. One of the elements
of the assault by prisoner statute is that the defendant place
the victim in apprehension of an immediate battery likely to
cause death or great bodily harm. The defendant argued that because
his attack was a surprise, the victim could not have been in
apprehension of it.
The court of appeals concluded that there was ample evidence
presented to permit the jury to conclude that the victim was
in apprehension of an immediate battery and that the defendant
intended to place her in such apprehension. The victim testified
that before the attack, she had frequently seen the defendant
outside her office, staring at her. On the day of the attack,
the victim had informed the defendant that he was to be moved
to a more secure building. When the victim was leaving the grounds,
she felt a blow to her head, looked over her shoulder, and saw
the defendant. She recalled that after that first blow she "knew
it was a real problem when she realized she was getting hit more
than once." Based on the testimony, the jury could have
concluded that, after the first blow, she was in apprehension
of an immediate battery - the subsequent blows - and
that the defendant, through all of his actions up to and including
the attack, intended to place her in such apprehension. In the
context of this statute, the court concluded that the onset of
apprehension of a battery may occur while the battery is in progress.
Criminal Procedure
Prosecutorial Vindictiveness - Presumptions
State v. Johnson,
No. 97-1360-CR (filed 10 Nov. 1998) (ordered published 16 Dec.
1998)
Following a jury trial, the defendant was convicted of sexually
assaulting two children. He originally was charged with one count
of sexual assault. A trial resulted in a hung jury. Prior to
the second trial, the prosecutor filed an amended information
charging an additional count of sexual assault and burglary.
By letter, the prosecutor agreed to drop the new counts and allow
the defendant to plead to a single sexual assault, with sentencing
left to the court's discretion. The letter also addressed
the potentially longer prison sentence should the defendant take
the matter to trial. The trial judge denied the defendant's
motion to dismiss the amended information.
The court of appeals, in an opinion written by Judge Fine,
reversed and remanded the case for further proceedings because
the trial judge erred by rejecting his pretrial claim of prosecutorial
vindictiveness. Since the case had been tried once, the law created
a "presumption of prosecutorial vindictiveness," the
purpose of which is to prevent the "chilling" of a
defendant's rights. Retrying the defendant on the original
charge would have created no presumption of vindictiveness. In
this case, however, the addition of two felony charges coupled
with the offer to withdraw the amended information if defendant
waived his trial rights satisfied the prima facie showing necessary
to the presumption.
On remand, the state has the burden of demonstrating by a
preponderance of the evidence that the additional charges were
not added solely to persuade the defendant to plead guilty. Should
the state fail, a potential remedy is the vacatur of the additional
sexual assault count, "leaving intact his conviction on
the first count of first-degree sexual assault of a child if
the evidence presented in connection with the second count and
the burglary count would have been admissible at trial under
Rules
904.04(2) and 904.03, Stats., if Johnson had been retried
on the first count only."
Forfeiture of Vehicle Used to Transport Stolen Property -
"Innocent Owner" Defense - Meaning of "Owner"
State v. Kirch,
No. 98-0582 (filed 29 Oct. 1998) (ordered published 18 Nov. 1998)
The defendant stole a 16-foot tri-axle trailer using a truck
registered to his mother. The mother told the police that although
the truck was registered in her name, it belonged to her son.
She stated that he provided the money to purchase the vehicle,
as well as the money for the sales tax and registration. She
stated that the truck was listed in her name because her son
was undergoing a bankruptcy and he said that he could not have
a vehicle in his name.
The state filed a complaint pursuant to Wis. Stat. sections
973.075 and 973.076 demanding forfeiture of the truck. The
sole issue at the forfeiture hearing was whether the defendant
or his mother was the "owner" of the truck for purposes
of the "innocent owner" defense. The latter, which
is codified in section 973.075(1)(b)2, provides that no vehicle
is subject to forfeiture by reason of any act or omission established
by the owner of the vehicle to have been committed without his
or her knowledge or consent. The term "owner" is not
defined in the forfeiture statute, but is defined in the Motor
Vehicle Code as one who holds legal title. Using this definition,
the trial court concluded that the defendant's mother was
the "owner" of the truck and, because she had nothing
to do with the commission of the crime, it dismissed the state's
forfeiture complaint.
The court of appeals, in a decision authored by Judge Dykman,
reversed. It rejected use of the Motor Vehicle Code definition
of ownership because the Vehicle Code restricts its definitions
to provisions contained therein and a few others. Instead, the
court concluded that the factors of possession, title, control,
and financial stake ought to be used when determining ownership
for purposes of the "innocent owner" defense.
In this case the mother was listed on the title as the owner,
but she had no financial stake in the truck because it had been
purchased entirely by her son. Nor did she possess or have control
over the actual vehicle. She has not claimed ownership of the
truck and stated that the truck "belongs to" her son,
and that she was only listed as the owner because he was undergoing
a bankruptcy and did not want to have the truck in his name.
These, said the court of appeals, are not the indicia of an "owner"
of a vehicle. Accordingly, it concluded that the mother was not
the "owner" of the truck as that term is used in the
forfeiture statute.
Search Warrant Applications - Magistrate's Inference
That Drug Dealer's Residence Contains Contraband
State v. Ward, No.
97-2008-CR (filed 8 Oct. 1998) (ordered published 18 Nov. 1998)
The defendant appealed felony convictions for possession of
controlled substances with intent to deliver contending that
evidence derived from a search of his residence should have been
suppressed. He argued that the search was improper because the
warrant application did not provide sufficient facts from which
the issuing magistrate could conclude that there was probable
cause to believe that evidence of criminal activity would be
located within his home.
The affidavit in support of the warrant demonstrated that
an individual named Vance, who recently had been arrested for
dealing marijuana, identified a "Lance" [the defendant's
name is Lance Ward] on Royce Street in Beloit, Wis., as his supplier;
that Beloit property tax records showed that the defendant owned
property at 1663 Royce Street; and that police had received four
"pieces of intelligence" indicating that the defendant
was a drug dealer. Though the affidavit failed to provide a direct
connection between the items sought in the warrant and the dwelling
on Royce Street to be searched, the circuit court concluded that
it was reasonable for the issuing magistrate to infer that drug
dealers would store their products and other evidence of criminal
activity within their residences.
In a majority opinion authored by Judge Deininger, the court
of appeals reversed. It began its analysis by noting that whether
a warrant-issuing magistrate may rely upon his or her own experience
to infer, solely from information that a person sells drugs,
that evidence of drug dealing likely will be found within his
or her residence is a question of first impression in Wisconsin.
While it is true that the Wisconsin Supreme Court has recognized
that issuing magistrates may draw the usual inferences that reasonable
people draw from evidence when determining whether a particular
warrant application states probable cause to believe that evidence
of criminal activity is likely to be found in a designated location,
the court in this case believed that it was being asked to ratify
a magistrate's inference that supplied information that
was wholly missing from the warrant application. This the appellate
court declined to do. It was not convinced that the approach
urged by the state - that a magistrate's inference
that drug dealers keep incriminating evidence in their homes
is always reasonable - is consistent with Wisconsin case
law. Such a blanket rule would relieve law enforcement of any
responsibility to place before a magistrate the underlying circumstances
that establish a substantial basis that evidence of drug dealing
likely will be found in the dealer's residence.
The court indicated that its rejection of the state's
position on this appeal does not mean that police must obtain
a direct observation of controlled substances on the premises
before a warrant may be obtained to search a suspected drug dealer's
home. The court cited United States v. Lalor, 996 F. 2d
1578 (4th Cir. 1993), which offered examples of information that
links criminal activity to the defendant's residence, such
as prior discovery of contraband in the suspect's place
of residence, a suspect's return to his or her residence
between negotiating and consummating a drug transaction, and
surveillance that connects drug activity to a suspect's
residence. The court also cited a leading Fourth Amendment treatise
that provides additional examples, including drug sales that
occur "near the home."
In sum, the court concluded that the affidavit presented to
the issuing judge in this case as described above did not provide
a substantial basis for finding probable cause that evidence
of drug dealing likely would be found at that location. Although
the court will defer to a magistrate's conclusion whenever
possible, and will permit reasonable inferences to sustain the
reliability and timeliness of information in warrant applications,
neither the Fourth Amendment nor its equivalent provision in
the Wisconsin Constitution permits a magistrate to infer a link
between evidence of drug dealing and the dealer's residence
when the application is devoid of any facts or information from
which to infer such a link.
Judge Roggensack filed a dissenting opinion.
Disability Law
ADA - Discrimination by Employers - Personal Liability
of Agents of Employers
Alberte v. Anew Health
Care Services Inc., No. 96-3225 (filed 20 Oct. 1998) (ordered
published 16 Dec. 1998)
The issue in this case was whether the Americans with Disabilities
Act (ADA) permits imposition of personal liability on one who
is an "employer" by virtue of her status as an "agent"
of an "employer." In a majority decision authored by
Judge Fine, the court of appeals held that it does.
Anew Health Care Services Inc. provides skilled nursing services
to persons in the community. The plaintiff used to work for Anew.
She was fired by defendant Sprenger, who was president, administrator,
and 47.5 percent owner of Anew. The plaintiff claimed that Sprenger
fired her because of the plaintiff's disability. In this
lawsuit she sought to hold Sprenger personally liable, in addition
to seeking damages from Anew. Sprenger contended that she cannot
personally be held liable for what she did as an officer, part
owner, and employee of Anew. The circuit court agreed, but the
court of appeals reversed.
The ADA makes it illegal for any "covered entity,"
which is defined to include an "employer," to "discriminate
against a qualified individual with a disability." The Act
defines "employer" to mean inter alia "a person
engaged in an industry affecting commerce" who employs at
least a specified minimum number of employees "and an agent
of such person." Anew Health Care admitted that it is an
"employer"; defendant Sprenger admitted that she is
an "agent." The ADA gives to anyone claiming to be
a victim of a violation under it the remedies set forth in Title
VII of the Civil Rights Act. Title VII defines "employer"
to include "any agent" of the "person" deemed
to be an "employer." Relying on these definitions,
the majority concluded that Sprenger was an "employer"
as that term is used in the ADA and thus is subject to personal
liability for violations of the ADA.
Judge Curley filed a dissenting opinion.
Evidence
Accident Reenactments - Expert Foundation - Videotapes
State v. Peterson,
No. 97-3737-CR (filed 15 Oct. 1998) (ordered published 18 Nov.
1998)
A jury convicted the defendant of multiple crimes arising
out of a drunk-driving related accident involving a boat. On
appeal the defendant contended that the trial judge erred by
excluding from evidence a videotape "that demonstrated the
conditions of the river at the time of the accident." The
judge ruled that a proper foundation required expert testimony.
The court of appeals, in an opinion written by Judge Vergeront,
reversed and remanded for a redetermination of the videotape's
admissibility. The admissibility of pretrial reenactment evidence
is within the trial court's discretion and subject to a
weighing of probative value against unfair prejudice under section
904.03. In this case the judge erred by requiring expert
testimony as a necessary predicate for the admissibility of "video
images." Videotapes, like any other form of photographic
evidence, can be authenticated by a lay witness who testifies
that, based on personal knowledge, the videotape fairly and accurately
depicts what he or she saw. The defense provided such evidence
in this case and the state offered nothing to rebut it. The trial
judge also erred by excluding the videotape based on the judge's
personal knowledge of the river's condition at night. The
court of appeals carefully distinguished between a judge's
proper use of judicial notice (what we all "know")
from an improper expression of personal knowledge. Finally, the
judge also excluded the videotape under section 904.03, but the
errors necessitated a remand so that the trial judge could reconsider
balancing of probative value and prejudicial effect.
Family Law
Domestic Abuse Injunctions - "Household Member"
Petrowsky v. Krause,
No. 97-2205 (filed 4 Nov. 1998) (ordered published 16 Dec. 1998)
Annette Petrowsky and Brad Krause dated from June 1994 until
September 1996. During the summer of 1996, they took numerous
trips to Brad's parents' cabin in northern Wisconsin.
They would stay in the cabin together and then return to their
respective homes in Ozaukee County. They did this repeatedly
throughout that summer.
In September 1996 the parties ended their dating relationship.
There was evidence that they were in contact after that, although
it was disputed who initiated the contacts. These communications
caused Brad to contact the police in June 1997 and Annette to
petition for a temporary restraining order against Brad under
the domestic abuse statute in August 1997. The petition alleged
physical and emotional abuse throughout their relationship and
a threat of physical violence during a 1997 phone call.
The temporary restraining order was granted. Subsequently
the circuit court found that there was sufficient evidence to
conclude that the parties were living together during the summer
of 1996 and that there were reasonable grounds to believe that
Brad had engaged in or may engage in domestic abuse against Annette.
Accordingly, the court issued a domestic abuse injunction.
The issue on appeal was whether the trial court erred in issuing
the domestic abuse injunction. The Wisconsin domestic abuse statute
applies to certain acts engaged in by "an adult family member
or adult household member against another adult family member
or adult household member." See Wis. Stat. §
813.12(1). The statute defines "household member"
to mean any person "currently or formerly residing in a
place of abode with another person."
In this case the parties were dating, but were not married.
The evidence demonstrated that they stayed together under one
roof when they took frequent trips to a cabin during the summer
of 1996. In a unanimous decision authored by Judge Brown, the
court of appeals concluded that, as a matter of law, the evidence
was insufficient to find that they were "household members"
for purposes of the domestic abuse statute. Said the court, the
clear language of the statute mandates a continuous living arrangement
between the parties in order for them to be considered household
members. Annette and Brad dated for more than two years while
maintaining separate residences. Their summer excursions, while
perhaps frequent, did not amount to a domestic living arrangement.
Had the evidence showed that the two stayed together while at
the cabin and in Ozaukee County, the result may be different.
The court did not think it significant that the parties reside
together only in one place, but did believe that it is important
that they reside together on a continuous basis in order to come
within the parameters of the domestic abuse law.
Child Custody - Revisions of Physical Placement Orders
-
Moving Child's Residence Outside the State - Power
of Court
to Refuse to Allow Minor Child to Testify
Hughes v. Hughes,
No. 97-3539 (filed 12 Nov. 1998) (published 16 Dec. 1998)
This case involves the revision of physical placement orders
and the interplay between Wis. Stat. sections
767.325 and 767.327. The former governs revisions to physical
placement orders whereas the latter, among other things, governs
moving the child's residence outside the state.
Section 767.325 provides that it is "applicable to modifications
of legal custody and physical placement orders," "except
for matters under s. 767.327 or 767.329 [revisions by stipulation]."
This means that if one parent contemplates a move, that parent
must proceed under section 767.327, and section 767.327(3) then
governs placement and custody modification if the move is contested.
The latter statute permits modification if it is in the best
interest of the child and the move results in a substantial change
in circumstances. However, neither section 767.325 nor 767.327
states that, once a parent has provided notice of a move under
section 767.327, the parent opposing the move may not bring a
motion for a revision of physical placement under section 767.325
based upon a substantial change in circumstances other than the
proposed move.
Despite the urgings of the appellant in this case, the court
of appeals concluded that sections 767.325 and 767.327 do not
conflict. The latter applies where the only potential substantial
change in circumstances is the proposed move, whereas the former
applies when the moving party asserts that circumstances other
than those associated with a proposed move have changed. Both
statutes establish a rebuttable presumption that continuing the
child's physical placement with the parent with whom the
child spends the most time is in the child's best interest,
and both require that the court determine if modification is
in the child's best interest, in addition to determining
if there is a substantial change in circumstances. The difference
is that under section 767.327 the move is the basis for the requisite
substantial change in circumstances, whereas section 767.325
does not contain that limitation.
The court also reviewed the circuit judge's decision
refusing to allow the minor child's mother to call the child
as a witness in the proceedings.
One of the factors the court "shall consider" in
deciding what is in a child's best interest with respect
to placement and custody is "the wishes of the child, which
may be communicated by the child or through the child's
guardian ad litem or other appropriate professional." See
§ 767.24(5)(b). The plain language of the statute does not
require that the child testify to his or her preference in court,
or even that the trial judge communicate in person with the child.
The statute requires the court to consider the child's preference,
but it does not require the court to use any particular method
to inform itself of the preference. How the statutory duty is
discharged is left to the court's discretion. The appellate
court in this case concluded that the trial judge properly exercised
his discretion in not permitting the child to testify given that
the judge was concerned by the parents' high level of hostility
over the child's physical placement and the difficulty the
child would have in testifying about her preferences in front
of both parents.
Finally, the court of appeals rejected the mother's argument
that she had a right to call the minor child as a witness because
the minor was competent to testify under Wis. Stat. section
906.01, which provides that "every person is competent
to be a witness except as provided by ss.
885.16 and 885.17 or as otherwise provided in these rules."
The general rule on competency of witnesses permits the minor
to testify as an evidentiary matter; it does not remove nor negate
the trial court's discretion in the particular circumstances
of a custody or placement dispute to decide that it is not in
the child's best interest to testify to the child's
preference on placement or custody.
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