Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Criminal Law |
Criminal Procedure | Real Property
| Torts | Worker's Compensation
|
Civil Procedure
Discovery - Expert Opinions - Privilege - Refusal to Answer -
Sanctions
Burnett v. Alt, No.
96-3356, etc., (filed 18 February 1999)
This appeal concerned a discovery dispute and the imposition of
sanctions based on an expert's refusal to answer certain questions. The
underlying case involved a medical malpractice claim stemming from the
birth of a badly brain-damaged baby. The plaintiffs named several expert
witnesses, including Dr. Acosta who had provided prenatal care and other
medical services. (Dr. Acosta was not named as a defendant.) At his
deposition on instructions by his attorney, Dr. Acosta refused to answer
the following question: "No matter what the cause, a patient with a
history of term pregnancy and a gush of blood[,] that's abnormal?" The
circuit court granted a motion compelling discovery and imposing
sanctions based upon the witness's refusal to answer. The court of
appeals affirmed both orders.
The supreme court, in an opinion written by Justice Bablitch,
reversed. The majority addressed three principal issues. First, the
court held that the question clearly called for expert opinion
testimony. An answer obviously depended upon Acosta's education and
experience as a doctor; no lay person could reasonably answer the
inquiry. Second, the court held that expert witnesses were privileged to
refuse to provide expert opinions; that is, Dr. Acosta had a right to
refuse to answer. Plunging into the interstices of the Wisconsin Rules
of Evidence, the majority concluded that it created an "implicit"
privilege for experts. In particular, section
907.06 of the Wisconsin Statutes permits the court to appoint an
expert but only upon the expert's consent. If a trial court cannot
compel an expert witness to testify, a litigant also cannot force an
expert witness to testify.
Reviewing several diverse approaches, the supreme court adopted a
"broad qualified privilege" for expert opinion testimony. A litigant
must demonstrate "compelling circumstances" before a court "compels" an
unwilling expert to offer opinion testimony. Even where such compelling
circumstances are present, the litigant must "present a plan of
reasonable compensation." Finally, the expert's participation is limited
to providing "existing opinions": "Under no circumstances can an expert
be required to do additional preparation." The court expressly held that
a contrary holding in a 90-year-old case (experts must testify to
existing opinions but can't be forced to do additional work) did not
survive the Wisconsin Rules of Evidence.
In this case, the plaintiffs failed to demonstrate any compelling
circumstances. For this reason, the plaintiffs also failed on the third
issue: The circuit court erred in compelling the answer and imposing
sanctions. The majority expressly cautioned lawyers "that our holding in
this case is not a license to assert unsubstantiated privileges."
Finally, the court rejected the plaintiffs' request for a supervisory
writ entering a default judgment against the defendants because they
failed to follow proper procedures or meet the standards.
Justice Bradley, joined by Chief Justice Abrahamson, dissented. They
were unpersuaded that any such expert opinion privilege exists under
Wisconsin law.
Criminal Law
Sexual Exploitation of Child - Constitutionality of Wis.
Stat. Section 948.05
State v. Zarnke, No.
97-1664-CR (filed 26 Feb. 1999)
The defendant was charged with two counts of sexual exploitation of a
child contrary to Wis. Stat. section
948.05(1)(c for his reproduction and/or distribution of photographs,
electronically stored images, and other pictorial reproductions of a
child engaging in sexually explicit conduct.
Section 948.05(10)(c) provides that whoever does any of the following
with knowledge of the character and content of the sexually explicit
conduct involving the child is guilty of a Class C felony: "produces,
performs in, profits from, promotes, imports into the state, reproduces,
advertises, sells, distributes or possesses with intent to sell or
distribute, any undeveloped film, photographic negative, photograph,
motion picture, videotape, sound recording or other reproduction of a
child engaging in sexually explicit conduct."
The statute further provides that it is an affirmative defense to a
prosecution for a violation thereof if the defendant had reasonable
cause to believe that the child had attained age 18 and the child
exhibited to the defendant, or the defendant's agent or client, a draft
card, driver's license, birth certificate, or other official or
apparently official document purporting to establish that the child had
attained age 18. The statute specifically provides that a defendant who
raises this affirmative defense has the burden of proving the defense by
a preponderance of the evidence.
The issue before the supreme court was whether section 948.05
prohibiting the sexual exploitation of a child violates the First and
Fourteenth Amendments to the U.S. Constitution and article I, section 3
of the Wisconsin Constitution for failing to require that the state
prove that a distributor of sexually explicit materials had knowledge of
the minority of the person(s) depicted in the materials.
In a majority opinion authored by Justice Steinmetz, the court held
that section 948.05 on its face does not set forth the requirement that
the state carry the burden of proving that the defendant had knowledge
of the minority of the child-victim depicted in the sexually explicit
materials for which the prosecution is being brought. Therefore, the
statute as written is unconstitutional as it applies to the distribution
of sexually explicit material depicting minors, as well as to the other
prohibited conduct that does not entail a personal interaction between
the accused and the child-victim.
In United States v. X-Citement Video Inc., 513 U.S. 64
(1994), the U.S. Supreme Court suggested strongly that some level of
scienter as to the minority of the child-victim was constitutionally
required in child pornography prosecutions where there is no reasonable
expectation of a face-to-face meeting between the accused and the minor.
The Wisconsin Supreme Court agreed that the age of the performer is an
elemental fact and that the government must prove some level of scienter
as to the performer's minority.
It is true that section 948.05 is not a strict liability statute, for
it is possible for a defendant to escape liability by proving a lack of
knowledge under the statutory affirmative defense described above.
However, the current statute, as it applies to distributors, is
indistinguishable from a strict liability statute because it is
virtually impossible for a defendant who functions as a distributor of
the materials to meet his or her burden under the affirmative defense
(which requires among other things some documentary proof of age to be
supplied by the child to the defendant or the latter's agent or
client).
The court declined to save the statute by severing the offending
portions thereof and then reading into those same portions a scienter
requirement. Said the court, it is the Legislature's job, not the
court's, to amend the invalid portion of the statute to conform to the
federal and state constitutions.
The court concluded its decision by noting that, with the removal of
the offending language, section 948.05(1)(c) now reads: "produces or
performs in any undeveloped film, photographic negative, photograph,
motion picture, videotape, sound recording or other reproduction of a
child engaging in sexually explicit conduct." The court specifically
reserved the question of whether this remaining portion of the statute
is constitutional.
Justice Prosser filed a dissenting opinion in which he urged that the
court has a duty to read into the statute the element of scienter and to
construe the statutory affirmative defense to apply only to those
situations in which there has been or could have been personal contact
between the defendant and the child.
Criminal Procedure
Circuit Courts - Power to Dismiss Cases With Prejudice Prior
to
Attachment of Jeopardy
State v. Krueger, No.
97-2663-CR (filed 16 Feb. 1999)
The issue presented in this case was whether a circuit court has the
inherent power to dismiss a criminal complaint with prejudice prior to
the attachment of jeopardy when the defendant's constitutional right to
a speedy trial is not implicated. On appeal the defendant asked the
supreme court to reexamine and expand its decision in State v.
Braunsdorf, 98 Wis. 2d 569, 297 N.W.2d 808 (1980), in which the
supreme court held that "trial courts of this state do not possess the
power to dismiss a criminal case with prejudice prior to the attachment
of jeopardy except in the case of a violation of the defendant's
constitutional right to a speedy trial." In a unanimous decision
authored by Chief Justice Abrahamson, the supreme court refused the
defendant's request.
The defendant argued that Braunsdorf should be expanded to
recognize that a circuit court has the inherent power to dismiss a
prosecution if the circuit court's sense of fairness has been violated.
He equated a violation of the court's sense of fairness with a violation
of due process. That was the position taken by the circuit court when it
dismissed with prejudice a case of indecent exposure against the
defendant. The circuit court thought this prosecution was generally
violative of due process because the facts supporting the indecent
exposure case had been admitted as "other acts evidence" in a prior
trial of the defendant involving a similar charge. At that prior trial
the judge warned the state that, if it introduced the "other acts"
evidence, it could not later prosecute the defendant for the "other
acts" conduct.
The supreme court concluded that the state's exercise of discretion
to proceed with the current prosecution fell within the generally
accepted bounds of a prosecutor's discretion in deciding whether to
prosecute and how to prosecute. Adhering to well-accepted law governing
prosecutorial discretion in charging decisions, the court concluded that
the state lawfully exercised its charging discretion in bringing the
present case. The circuit court's conclusion that the state's conduct
violated a sense of fairness cannot displace the state's lawful exercise
of well-accepted prosecutorial discretion.
Allegation of Delayed Charging to Avoid Juvenile Court
Jurisdiction - Standards for Requiring Circuit Court to Hold Evidentiary
Hearing on Delayed Charging
State v. Velez, No.
96-2430-CR (filed 12 Feb. 1999)
In 1994, after becoming an adult, the defendant was charged with
first-degree intentional homicide for a crime committed when he was
still a juvenile. [Note: The age at which a court of criminal
jurisdiction has original jurisdiction of a defendant accused of
committing a crime has since been lowered from 18 to 17. The age at
which a court of criminal jurisdiction has original jurisdiction of a
defendant accused of committing an intentional homicide has since been
lowered to 10.]
The defendant moved to dismiss the case claiming that the state had
intentionally manipulated the system in order to avoid juvenile court
jurisdiction. See State v. Becker, 74 Wis. 2d 675, 247 N.W.2d
495 (1976). The circuit court conducted a nonevidentiary hearing on the
motion and then denied the defendant's request for an evidentiary
hearing, concluding that the accused was entitled to an evidentiary
hearing only after making some threshold showing of manipulative intent
by the state. The circuit judge found that the defendant had failed to
make that sufficient initial showing following its examination of the
motion, defense counsel's affidavit and memorandum of law, and an offer
of proof on the delayed charging submitted by the prosecutor. The
defendant subsequently was convicted by a jury.
The court of appeals affirmed. With respect to the circuit court's
denial of the defense request for an evidentiary hearing on the motion
described above, the appellate court concluded that because the state
had refuted the defendant's claim of a manipulative intent at the
nonevidentiary hearing, an evidentiary hearing was not required.
In a majority decision authored by Justice Steinmetz, the supreme
court affirmed the court of appeals. It held that a nonevidentiary
hearing on the defense motion to dismiss, which is used to determine
whether an evidentiary hearing is required, satisfies the due process
hearing required by Becker, supra. At the nonevidentiary
hearing on the motion, the circuit court must determine whether an
evidentiary hearing is required under standards articulated in
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972): If the
defendant's motion on its face alleges facts that would entitle him or
her to relief, the circuit court has no discretion and must hold an
evidentiary hearing. However, if the motion does not allege sufficient
facts, the circuit court has the discretion to deny the motion without
holding an evidentiary hearing if it finds one of the following
circumstances: 1) the defendant failed to allege sufficient facts in his
or her motion to raise a question of fact; 2) the defendant presented
only conclusory allegations; or 3) the record conclusively demonstrates
that the defendant is not entitled to relief.
Further, because the motion involved in this case was a pretrial
motion, the court modified the second part of the Nelson test
to accommodate the inherent difficulties confronting a defendant when
making a pretrial motion as the defendant did in this case. Where the
circuit court must use its discretion in determining whether to grant an
evidentiary hearing, it must carefully consider the record, the motion,
counsels' arguments and/or offers of proof, and the law. Where the
record establishes no factual scenario or legal theory on which the
defendant may prevail, and/or where the defendant holds only hope but
articulates no factually based good faith belief that any impropriety
will be exposed through an evidentiary hearing, the evidentiary hearing
is not required. Where there is a reasonable possibility that the
defendant will establish the factual basis at an evidentiary hearing,
the circuit court must provide the defendant the opportunity to develop
the factual record. See State v. Garner, 207 Wis. 2d 520, 558
N.W.2d 916 (Ct. App. 1996) (a case involving a pretrial motion
challenging the admissibility of identification evidence in which the
court of appeals articulated the standards for determining whether an
evidentiary hearing in the pretrial motion context is necessary).
Justice Bradley filed a concurring opinion that was joined by Chief
Justice Abrahamson.
Probable Cause to Arrest - Odor of Marijuana Emanating
from
Defendant's Vehicle
State v. Secrist, No.
97-2476-CR (filed 2 March 1999)
A police officer was directing traffic at a local Fourth of July
parade. The defendant drove up to the officer to ask directions. The
driver's window was open and the defendant was alone in the car. The
officer immediately smelled a strong odor of marijuana coming from the
automobile. He recognized that odor from his training and experience.
[Note: According to the defendant's arguments before the supreme court
as summarized in the court's opinion, the odor was of burned marijuana
not burning or unburned marijuana.]
After detecting the strong odor, the officer directed the defendant
to pull his car over to the side of the road. After the defendant
complied, the officer told the defendant to get out of the vehicle
whereupon the defendant was placed under arrest for possession of
marijuana. A search of the automobile incident to that arrest revealed a
marijuana cigarette with an attached roach clip in the ashtray next to
the driver's seat.
The defendant was charged with one count of possessing a controlled
substance and one count of possessing drug paraphernalia. He moved to
suppress the physical evidence seized following his arrest claiming that
the arrest was without probable cause and thus illegal. The circuit
court denied the motion.
The court of appeals reversed. It concluded that the odor of burned
marijuana emanating from an automobile with a sole occupant does not
establish probable cause to arrest that person.
The supreme court, in a unanimous decision authored by Justice
Prosser, reversed the court of appeals. It concluded that the odor of a
controlled substance provides probable cause to arrest when the odor is
unmistakable and may be linked to a specific person or persons because
of the circumstances in which the odor is discovered or because other
evidence links the odor to the person or persons. In this case, a police
officer detected the strong odor of marijuana coming from the direction
of the defendant inside the automobile. The defendant was the operator
and sole occupant of the automobile. In these circumstances, said the
court, the strong odor of marijuana provided probable cause to arrest
the defendant.
In its decision the court indicated that the strong odor of marijuana
in an automobile will normally provide probable cause to believe that
the driver and sole occupant of the vehicle is linked to the drug. The
probability diminishes, however, if the odor is not strong or recent, if
the source of the odor is not near the person, if there are several
people in the vehicle, or if a person offers a reasonable explanation
for the odor.
Real Property
Landlocked Property - Easements by Implication and
Necessity
Schwab v. Timmons, No.
97-1997 (filed 12 Feb. 1999)
The petitioners and respondents in this case all own property located
on Green Bay in Door County. The properties are situated between the
waters of Green Bay on the west and a bluff ranging in height from 37
feet to 60 feet on the east. Prior to 1854 the property was owned by the
U.S. government and, at the time the government conveyed the lots to the
parties' predecessors in title, the lots were comprised of property both
above and below the bluff with access to a public roadway from above.
The petitioners inherited properties that included land below and above
the bluff. However, they sold off those properties above the bluff that
had highway access. At present, the petitioners' parcels are bordered by
water on the west and the bluff on the east. Because their properties
are between the lake and the bluff, they claim their only access is over
the land to the south that is owned by the respondents, to which they do
not have a right-of-way.
The petitioners brought a declaratory judgment action requesting an
easement by necessity or by implication for both ingress and egress and
utilities over the properties owned by the respondents in order to gain
access to their landlocked parcels. The circuit court and the court of
appeals concluded that the historical circumstances in this case do not
fit the typical situation from which ways of necessity are implied.
Before the supreme court the petitioners claimed that they are
entitled to an easement by necessity or by implication over the
respondents' properties; in the alternative, they sought an expansion of
the common law of Wisconsin to recognize an easement by necessity where
property is landlocked due to geographical barriers and due to the
actions of the common owner and grantor, in this case, the U.S.
government.
In a unanimous decision authored by Justice Wilcox, the court
concluded that the petitioners have failed to establish entitlement to
an easement by implication or by necessity either because of actions by
the federal government or by geographical barriers. Not only were the
parcels at issue not landlocked at the time of conveyance by the
government, but the petitioners themselves created their landlocked
parcels when they conveyed away their highway access. The court declined
to overturn a century of common law to accommodate such actions.
Easements by implication and by necessity are similar though legally
distinguishable concepts. Since the early 1900s, the public policy of
Wisconsin has strongly opposed the implication of covenants of
conveyance.
An easement by implication arises when there has been a separation of
title, a use before separation took place that continued so long and was
so obvious and manifest as to show that it was meant to be permanent,
and it must appear that the easement is necessary to the beneficial
enjoyment of the land granted or retained. Implied easements may be
created only when the necessity for the easement is so clear and
absolute that without the easement the grantee cannot enjoy the use of
the granted property for the purposes for which similar property is
customarily devoted.
In this case the petitioners failed to establish a claim for an
easement by implication. While a landlocked parcel may satisfy the
necessity element, it is apparent from the pleadings that the private
road on the respondents' properties which the petitioners seek to extend
does not and has never extended to the petitioners' properties. They
also failed to allege that any use by the United States was so obvious,
manifest, or continuous as to show that it was meant to be
permanent.
The court thought that the petitioners' claim was more akin to an
easement by necessity. An easement by necessity arises where an owner
severs a landlocked portion of his or her property by conveying such
parcel to another. To establish an easement by necessity, a party must
show common ownership of the two parcels prior to severance of the
landlocked parcel and that the owner of the now-landlocked parcel cannot
access a public roadway from his or her own property. Because in this
case the United States never severed a landlocked portion of its
property that was inaccessible from a public roadway, the petitioners
have failed to establish the elements for an easement by necessity.
Wisconsin courts have never before recognized geographical barriers
alone (such as the bluff in this case) as circumstances warranting an
easement by necessity. While the petitioners have provided evidence that
the cost of building a road up over the bluff would have been
exorbitant, the fact is that the petitioners had access to a public road
which they sold off. Thus, their current ownership of landlocked
property resulted not from a grant of property to them but by their own
acts in conveying away their highway access.
Torts
Immunity - Suspected Shoplifters - Pursuit
Peters v. Menard
Inc., No. 97-1514 (filed 2 March 1999)
This appeal involves liability arising out of the death of a
suspected shoplifter who drowned while pursued by security guards. Store
security guards observed Brian Peters shoplifting a drill from a
Menard's hardware store. They watched Peters leave the store, go to a
parked truck, and place the drill box inside. Peters himself later
entered the truck and was seated in the backseat when security guards
confronted him about the alleged theft. Peters got out of the truck,
denied knowledge about the drill, and when asked to accompany guards
back into the store, Peters bolted away. Several guards pursued Peters
on foot. On two occasions they unsuccessfully attempted to tackle him.
At some point Peters apparently jumped into the rain-swollen La Crosse
River in a failed attempt to get away. The guards tried to rescue Peters
who was clearly in distress, but the current carried him downstream and
he drowned.
Peters' survivors brought a wrongful death action against Menard and
the security agency. The circuit court ruled that the defendants were
statutorily immune from liability under Wisconsin's retail theft
statute, section
943.50(3). The court of appeals certified the case to the supreme
court on the issue of whether statutory immunity extended to attempts to
detain suspects in pursuits that are off the premises.
The supreme court, in an opinion written by Justice Crooks, affirmed.
The court held that "sec. 943.50(3) provides immunity to a merchant or
its agents for action taken while attempting to detain a person,
including pursuit, as long as the statute's three 'reasonableness'
requirements are met: (1) there is a reasonable cause to believe that
the person violated sec. 943.50; (2) the detention and the actions taken
in an attempt to detain are 'reasonable in manner'; and (3) the
detention and the actions taken in an attempt to detain last only for a
'reasonable length of time.'" The court also held that as a matter of
law, Peters' own negligence exceeded any negligence by the guards; thus,
plaintiffs were barred from recovery on public policy grounds. The
supreme court did not discuss whether the three reasonableness
requirements were satisfied in this case.
Immunity - State Officials
Eneman v. Richter, No.
96-2893 etc., (filed 3 March 1999)
This appeal involved the liability of various University of Wisconsin
officials in connection with injuries suffered by spectators at a campus
football game. The court divided equally on whether to reverse or affirm
the court of appeals, an impasse that effectively affirmed the court of
appeals' decision. Chief Justice Abrahamson did not participate.
Worker's Compensation
Injury on Employer Premises - Personal Errands
Ide v. Labor and Industry Review
Commission, No. 97-1649 (filed 26 February 1999)
Ide worked at MacFarlane Pheasant Farm Inc. and normally commuted to
and from work either by riding with coworkers or by riding his bicycle.
On the date of his injury Ide asked for and was given permission by the
MacFarlane president to use a company van to go grocery shopping after
work. After concluding his work for the day, Ide began to leave the
MacFarlane property with the van, but experienced a flat tire while he
was still on that property. As Ide was changing the tire, he injured his
lower back. He thereafter filed for worker's compensation.
The administrative law judge, while not explicitly finding that Ide's
original injury was work-related, did grant him a partial award. The
Labor and Industry Review Commission (LIRC) reversed the ALJ. In its
memorandum opinion, LIRC found that at the time of the injury, Ide was
not performing services growing out of and incidental to his employment.
See Wis. §
102.03(1)(c)2. Rather, LIRC concluded that Ide had completed work at
the time of the injury and that his injury occurred after he began a
purely personal errand: going to the grocery store. LIRC also determined
that using the van was not the usual or ordinary method by which Ide
left work each day.
The circuit court affirmed LIRC's decision. The court of appeals
thereafter reversed. The appellate court agreed that there was
sufficient credible evidence to support virtually all of LIRC's findings
of fact but nevertheless reversed, concluding that because someone had
to change the tire, Ide's attempting to do so constituted a benefit for
his employer a compensable event.
In a unanimous decision authored by Justice Wilcox, the supreme court
reversed the court of appeals. It concluded that there was credible and
substantial evidence supporting LIRC's determination that Ide's back
injury was not compensable under the Worker's Compensation Act because
he was not performing a service growing out of or incidental to his
employment; rather, he was finished working for the day and had begun a
purely personal errand when he was injured.
In its decision the supreme court noted that Ide was not responsible
for the maintenance of the van as part of his employment and changing a
vehicle tire was not part of his duties or incidental to his employment.
The fact that the injury occurred on MacFarlane Farm's property would
not alone bring about liability for the employer nor would the fact that
the president gave Ide permission to drive the van after hours support a
finding that the latter was acting within the scope of his
employment.
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.
Wisconsin Lawyer
