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Court of Appeals Digest

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

| Appellate Procedure | Commercial Law |
| Consumer Act | Criminal Law |
| Employment Law | Family Law | Juvenile Law |

Family and Medical Leave Act - Civil Action for Damages Following Unsuccessful Results in Administrative Proceedings

Butzlaff v. Wisconsin Department of Health and Family Services, No. 98-0453 (filed 17 Dec. 1998) (ordered published 27 Jan. 1999)

The plaintiff was terminated from his position as a security officer at Mendota Mental Health Institute in 1990. He filed a complaint with the personnel commission asserting that he was fired because he had to take time off from work to attend to his wife and sick child, in violation of the Family and Medical Leave Act (FMLA). After a hearing, the commission determined that the plaintiff failed to meet his burden of proving that his employer, the Department of Health and Family Services, had violated the FMLA. The plaintiff sought judicial review under Wis. Stat. section 227.52 and the circuit court affirmed. The plaintiff did not appeal that decision to the court of appeals.

Instead, he filed an action in circuit court asserting the same FMLA violation as that asserted before the personnel commission. The state moved to dismiss the complaint on the ground of sovereign immunity, asserting that 1) the FMLA does not permit a civil action unless the employee has prevailed in the administrative proceeding and judicial review, or 2) the statute was ambiguous on that point and was therefore not a clear and express consent to sue the state. The circuit court denied the motion, concluding that the statute plainly permitted a civil action whether or not the employee had been successful in the administrative hearing and judicial review.

In a majority decision authored by Judge Vergeront, the court of appeals reversed. It concluded that the Legislature has clearly and expressly waived state sovereign immunity in actions by employees under the FMLA. It further held that the FMLA permits civil actions for damages only by those employees who have first prevailed in the required administrative proceeding and judicial review.

Judge Dykman filed a dissenting opinion.

Wage Claims - Private Cause of Action Against Employers -
Sovereign Immunity of the State

German v. Wisconsin Department of Transportation, No. 98-0250 (filed 3 Dec. 1998) (ordered published 27 Jan. 1999)

In this case the Wisconsin Department of Transportation (DOT) appealed an order denying its motion to dismiss the wage claims of several Wisconsin State Patrol officers. The officers sued the DOT under Wis. Stat. section 109.03(5) seeking compensation for their meal breaks. The officers asserted that their breaks are not free of job duties and are therefore compensable work time under Wis. Admin. Code section DWD 274.02(3), which requires employers to pay for on-duty meal periods.

The DOT contended that it is protected by sovereign immunity and is therefore immune from suit. It also argued that the officers' claim is not a wage claim that can be brought under section 109.03(5). DOT's position was that a claim under the hours and overtime regulations in DWD 274 may not be brought directly to court by an employee, but must first be brought to the Department of Workforce Development (DWD).

Wis. Stat. section 109.03(5), which is part of the wage claim law, provides that employees may sue their employers for wages earned, but not promptly paid. The court of appeals, in an opinion written by Judge Deininger, concluded that this statute waives the state's sovereign immunity with respect to claims by state employees for wages due. The appellate court also concluded that the right of action created by the statute permits employees to sue employers for wage claims deriving from hours and overtime regulations without first pursuing the claim with the Department of Workforce Development.

Paternity Actions - Power of Court to Change Surname
of Child on Motion of Father

In re Paternity of Noah J.M., No. 97-2353 (filed 29 Dec. 1998) (ordered published 27 Jan. 1999)

In August 1995 Linda M.M., who was unmarried, gave birth to Noah. She named Noah, giving him her surname. Five months later she filed a paternity action alleging that Charles was Noah's father. Charles initially denied paternity but, after receiving blood test results, acknowledged that he was Noah's father and a judgment of paternity was entered. In the course of the paternity proceedings, Charles requested that the court change Noah's surname to his own. The circuit court granted the request and Linda appealed.

In a decision authored by Judge Schudson, the court of appeals reversed. It concluded that the court had no authority to change Noah's surname upon his father's request, absent compliance with Wis. Stat. section 786.36 and absent the agreement of Noah's mother. [Section 786.36 provides in relevant part that "if the person whose name is to be changed is a minor under the age of 14 years, the petition may be made by: both parents, if living, or the survivor of them; . . . or the mother, if the minor is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under section 767.60, except that the father must also make the petition unless his rights have been legally terminated."]

Delinquency Proceedings - Amending Charge
After Evidence Presented

State v. Tawanna H., No. 98-1404-FT (filed 8 Dec. 1998) (ordered published 27 Jan. 1999)

The juvenile was arrested and charged with misdemeanor battery via a juvenile delinquency petition. The juvenile denied the accusation. Following testimony, the juvenile court found her not guilty of battery but, sua sponte and without notice, amended the juvenile petition from battery to disorderly conduct. The court entered a dispositional order adjudging her delinquent for disorderly conduct and placing her on one-year supervision. The juvenile appealed.

In a decision authored by Judge Wedemeyer, the court of appeals reversed. It held that the juvenile was not properly notified of the disorderly conduct charge so as to satisfy basic due process and, as a result, her ability to defend herself was unfairly prejudiced, contrary to Wis. Stat. section 938.263(2). This statute provides that after the taking of a plea, the court may allow amendment of the petition to conform to the proof if the amendment is not prejudicial to the juvenile.

In this case there was no notice given to the juvenile that she was subject to a disorderly conduct charge. She was accused of battery and there was no indication in the state's trial presentation of an intention to submit proofs of any other charge. It was evident to the appellate court from the trial transcript that the three witnesses called by the defense were there for the sole purpose of testifying about the alleged battery and the cross examination of the two state's witnesses related solely to the battery charge. Closing arguments by both counsel further underscored that the issue in the trial was battery. The juvenile was successful in her defense against the charged offense, but then was found guilty of an entirely different offense of which she had not been informed and against which she had not prepared.

The court noted that the elements of battery and disorderly conduct are not similar and clearly are not the same. In footnote the court observed that disorderly conduct is not a lesser included offense of battery and that the holding in this case should not be construed to mean that a conviction of a lesser included offense would be prejudicial.

Because the amended charge occurred in this case without proper notice, it unfairly prejudiced the juvenile's statutory and due process rights. Accordingly, the court of appeals reversed.

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.