Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Procedure | Damages |
| Employment Law | Evidence | Legal Malpractice |
| Real Property | Realtors | Zoning |
Criminal Procedure
Guilty Plea Withdrawal - Failure to Advise
Defendant Regarding Federal Firearms Disability
State v. Kosina,
No. 98-3421-CR (filed 27 April 1999) (ordered published 26 May 1999)
The defendant was charged with one count of disorderly conduct
arising out of an incident of domestic violence. He entered a plea of
guilty to the charge without the assistance of counsel. He subsequently
filed a post-conviction motion to withdraw his guilty plea alleging that
he entered the plea without knowing that his conviction could result in
the loss of his right to possess a firearm under those federal statutes
that prohibit one convicted of a misdemeanor involving domestic violence
from possessing firearms or ammunition. The circuit court denied
post-conviction relief and concluded that the effect of the federal
firearms statutes was a collateral consequence of the defendant's guilty
plea. The court of appeals, in a decision authored by Judge Myse,
affirmed.
Section
971.08(1)(a) of the Wisconsin Statutes requires the judge taking a
plea to determine that the plea is made voluntarily and with
understanding of the nature of the charge and the potential punishment
the defendant faces. A plea is not knowingly, voluntarily, and
intelligently entered, and a manifest injustice results when a defendant
does not know what sentence could actually be imposed. An understanding
of potential punishments or sentences includes knowledge of the direct
consequences of the plea, but does not require that a defendant be
informed of consequences that are collateral to the plea. A direct
consequence of a plea has a definite, immediate, and largely automatic
effect on the range of a defendant's punishment. A collateral
consequence does not automatically flow from the plea. In some cases a
particular consequence is deemed "collateral" because it rests in the
hands of another government agency or different tribunal. It also can be
collateral because it depends upon a future proceeding.
The court of appeals first concluded that the effect of the federal
statutes is not an automatic consequence of the defendant's plea because
the application of his misdemeanor disorderly conduct conviction to the
federal statutes' scope remains open and must be resolved before the
federal firearms prohibition takes effect. The court held that because
the defendant can, as a preliminary matter, contest the federal
statutes' applicability to his state conviction, the operation of the
federal firearm prohibition is not automatic. [In footnote the court
noted that its conclusion is confined to the question whether federal
law applies automatically when the trial court does not make a domestic
violence determination. The court did not address the consequences of a
trial judge making a factual determination that disorderly conduct is
related to domestic violence and including in its judgment that the
conviction is domestic violence related.]
Even assuming that the federal statute applies to the disorderly
conduct conviction because it involves domestic violence, the appellate
court held that its effect is a collateral consequence of the
defendant's guilty plea. The prohibition on possessing firearms arises
from a body of law that is collateral to the state court proceedings and
any consequence arising under that law must therefore also be
collateral. The firearms prohibition under the federal statute is a
separate, peripheral consequence and does not have an immediate or
automatic effect on the range of punishment imposed under state law by
the circuit court.
Bail - Incarcerated Defendants - Chapter 969 Conditions of Release
Inapplicable While Defendant Remains Incarcerated
State v. Orlik,
No. 98-2826-CR (filed 29 April 1999) (ordered published 26 May 1999)
The defendant was charged with several felonies and bail was set in
the amount of $320,000. The court also established other conditions of
release, including certain no contact orders. The no contact provision
was imposed originally as a condition of release pending trial. However,
when the defendant was unable to post cash bail, the court decided that
the no contact provision also applied while the defendant remained
incarcerated. The defendant contended that under the plain language of
Wis. Stat. sections
969.01 and 969.03, the circuit court has authority to set conditions
on the release of a defendant pending trial, but does not have authority
to impose conditions on a defendant who remains incarcerated awaiting
trial.
In a decision authored by Judge Vergeront, the court of appeals held
that the circuit court did not have authority under sections 969.01 and
969.03 to impose no contact orders on the defendant that would govern
him while he remains incarcerated. The court recognized that, pursuant
to section
940.47, a court with jurisdiction over a criminal matter has
authority to order a defendant not to violate the provisions of the
victim and witness intimidation statutes (sections 940.42 to 940.45), to
maintain a geographic distance from such persons, or to have no
communication with such persons except through an attorney. However,
this type of order must be based upon "substantial evidence which may
include hearsay or the declaration of the prosecutor, that knowing and
malicious prevention or dissuasion of any person who is a victim or who
is a witness has occurred or is reasonably likely to occur."
See Wis. Stat. § 940.47. The latter type of showing would
be required in order for the circuit court to determine whether it
should enter an order under section 940.47 (which could apply to an
incarcerated defendant).
Revocation of Probation - Credit for Time Spent in Division
of Intensive Sanctions Program
State v. Olson,
No. 98-1450-CR (filed 21 April 1999) (ordered published 26 May 1999)
The defendant was convicted of forgery and placed on probation. After
he absconded from probation, he was offered placement in the Division of
Intensive Sanctions (DIS) program as an alternative to the revocation of
his probation. After making progress in the DIS program and having his
electronic monitoring bracelet removed, he again absconded. Thereafter
his probation was revoked and the court sentenced him to a term in
prison.
At the sentencing following revocation of probation, a debate arose
as to whether the defendant should receive prison credit for his DIS
time. The Department of Corrections (DOC) recommended that he should
receive 256 days of credit. The state objected because the defendant was
not incarcerated during the time he spent in DIS. The circuit court
agreed with the state, concluding that the defendant's participation in
DIS was not the functional equivalent of confinement and therefore his
sentence should not be credited.
The court of appeals, in a decision authored by Judge Anderson,
affirmed. The court first concluded that the circuit court had the
exclusive authority to determine the amount of sentence credit to be
given a defendant when imposing a post-probation sentence. It further
concluded that the circuit court properly rejected prison credit for the
time the defendant spent in DIS. Whether sentence credit will be given
for DIS time depends upon the restrictions imposed on the defendant's
freedom by the program. The record revealed that while in DIS, the
defendant was required to wear an electronic monitoring bracelet and had
to seek approval in order to leave his residence, but he was not locked
in the home at night. Based on these facts, the appellate court
concluded that the defendant's participation in the DIS program did not
qualify as "custody" for purposes of Wisconsin's sentence credit
statute. See Wis. Stat. §
973.155.
Search and Seizure - Expectation of Privacy -
Dumpster - Commercial Premises
State v. Yakes,
No. 98-0470-CR (filed 21 April 1999) (ordered published 26 May 1999)
Yakes was convicted of sexually assaulting a child based upon
evidence recovered from a dumpster on his company's property. The court
of appeals, in an opinion written by Judge Brown, affirmed the
conviction and the seizure of the evidence.
The central issue before the court concerned whether Yakes had a
reasonable expectation of privacy in the area surrounding his commercial
building and in the area where the dumpster was located. Following
precedent from the Eleventh Circuit, the court held "that a commercial
proprietor must show how affirmative steps were taken to bar the public
from the dumpster area in order to validate a claim of an objectively
reasonable expectation of privacy regarding trash in the dumpster." The
"affirmative steps" might include warning signs or barricades. Yakes had
failed to take such affirmative action. Finally, Yakes claimed that the
dumpster was located within the curtilage of his residence, although the
record amply supported the trial court's conclusion that it was on
Yake's business premises.
Damages
Implied Contracts - Unjust Enrichment - Quantum Meruit
W.H. Fuller Co. v.
Seater, No. 98-1250 (filed 14 April 1999) (ordered published 26
May 1999)
The plaintiff, a contractor, was excavating property near land owned
by the defendant. The defendant's lessee arranged to have the contractor
dump the excavated fill on the defendant's lot and grade it. The
defendant was aware of the arrangement and signed a "hold-harmless
agreement" with the plaintiff. Later the plaintiff forwarded an invoice
to the defendant for about $17,150 for the fill and grading. The
defendant refused to pay it. The circuit court held a bench trial and
found that an implied contract existed between the plaintiff and the
defendant, and awarded the plaintiff nearly $19,000 in damages.
The court of appeals, in an opinion written by Judge Snyder, affirmed
in part and reversed in part. The only issue on appeal concerned the
proper measure of damages under a contract implied in law. Under
controlling case law, "a contract implied in law necessarily involves
recovery through unjust enrichment, not quantum meruit. As such, the
measure of damages for a contract implied in law is the benefit received
by the defendant."
Here the plaintiff billed the defendant for all materials and service
provided. The court held that damages "for unjust enrichment may include
services rendered for the defendant," but only when "those services ...
constitute the benefit received by the defendant." Finally, the
plaintiff was entitled to recover for any "detriment" caused to his
property.
Employment Law
Sexual Harassment - No Hostile Environment
Jim Walter Color
Separations v. LIRC, No. 98-2360 (filed 8 April 1999) (ordered
published 26 May 1999)
At the close of a three-day hearing, an administrative law judge
(ALJ) found that the employee's supervisor had sexually harassed her.
LIRC adopted the findings. The circuit court reversed LIRC's decision
that the employee had been the victim of sexual harassment in the
workplace. The circuit court ruled that the multiple acts had not
substantially interfered with her work performance and had not created a
hostile environment.
The court of appeals, in an opinion written by Judge Vergeront,
reversed the circuit court and found that LIRC had correctly interpreted
section
111.36(1)(b) of the Wisconsin Statutes. In particular, the court
held that "'unwelcome physical contact of a sexual nature' and
'unwelcome verbal or physical conduct of a sexual nature' may constitute
sexual harassment even though they do not create a hostile work
environment." The sexual harassment must be conducted, however by "the
owner or an agent under the principle of respondeat superior."
Evidence
Psychotherapist Privilege - Exceptions - Threat to the Public
State v. Agacki,
No. 97-3463-CR (filed 13 April 1999) (ordered published 26 May 1999)
The court of appeals, in a decision authored by Judge Schudson,
affirmed the defendant's conviction for carrying a concealed weapon. The
defendant was arrested after his licensed psychotherapist told police
that the defendant was emotionally unstable and armed with a gun. The
therapist gleaned this information through conversations and contacts
with the defendant, his patient, on the day of the arrest. The defendant
argued that the gun should be suppressed because his disclosures to the
therapist were privileged under section
905.04.
Prior case law had recognized what can be termed a "dangerous patient
exception" that obligated therapists, in some cases, "to warn potential
victims and/or contact the police." The duty to warn is triggered when
the therapist reasonably believes that the patient is dangerous and
disclosure of the communication is necessary to forestall harm.
Judge Fine concurred, writing separately to emphasize that the
communications in this case concerned the patient's future conduct and
intent, not past events.
Legal Malpractice
Damages - Mitigation - Reliance on Counsel
Langreck v.
WILMIC, No. 98-2024 (filed 29 April 1999) (ordered published 26
May 1999)
Langreck obtained a loan and mortgage from a bank in 1987. The
mortgage note required him to insure the premises with a "loss-payable
clause" in the bank's favor. In 1991 the house burned down. The insurer
refused to pay because Langreck was suspected of arson. Langreck
eventually retained Attorney Day who filed a suit against the insurer,
which was dismissed as time barred (the one-year statute of limitations
had expired). In 1993 the bank also filed a proof of loss with the
insurer, which was denied for the same reason. In 1994 the bank brought
a foreclosure action against Langreck. On advice of different counsel,
Langreck did not contest the foreclosure.
Langreck later brought a legal malpractice claim against Attorney
Day, his estate, and WILMIC. A jury awarded Langreck more than $100,000
in damages but it also found that Langreck had failed to mitigate his
damages by not contesting the bank's foreclosure, thus reducing
Langreck's damages by $57,000. Langreck appealed.
The court of appeals, in an opinion written by Judge Dykman,
reversed. Langreck had contacted an attorney regarding the foreclosure
action. The attorney advised him not to contest the foreclosure. The
court of appeals held that "[a]s a matter of law, it is unreasonable to
require a party to disregard his or her attorney's advice and proceed
pro se with an unknown defense." In a footnote the court expanded upon
this thought: "We fail to see how Langreck, without legal training,
could be expected to raise a defense not seen, accepted, or appreciated
by an attorney." The court ordered the trial court to enter judgment for
the original damage award.
Real Property
Condemnation by DOT - Compensation for Appraisal Fees - Sovereign
Immunity
Miesen v. Wisconsin
Department of Transportation, No. 98-3093 (filed 6 April 1999)
(ordered published 26 May 1999)
The Department of Transportation (DOT) began condemnation proceedings
against the plaintiff's property pursuant to chapter 32 of the Wisconsin
Statutes. Section
32.05(2)(b), which deals with negotiations before a jurisdictional
offer, provides that the owner of the property may obtain an appraisal
by a qualified appraiser of all property proposed to be acquired and may
submit the reasonable costs of the appraisal to the condemnor for
payment. Acting pursuant to this statute, the plaintiff hired an
appraiser and then submitted the appraiser's bill to DOT, as permitted
under the statute. DOT paid part of the bill, and the plaintiff filed a
complaint against DOT in small claims court for the difference.
DOT moved to dismiss the small claims action alleging that the
circuit court lacked jurisdiction based on DOT's sovereign immunity from
suit. Concluding that DOT had sovereign immunity, the circuit court
dismissed the action.
The court of appeals, in a decision authored by Chief Judge Cane,
reversed. It concluded that the DOT has clearly and expressly consented
to be sued under section 32.05 and that the circuit court therefore had
jurisdiction to determine whether the cost of the plaintiff's
independent appraisal was reasonable under section 32.05(2)(b).
Accordingly, it remanded the matter so that the circuit judge can
consider the reasonableness of the appraisal fees and enter judgment if
the DOT's payment was insufficient.
Realtors
Brokerage Services - Negligence - Third-party Reports
Johnson v.
Neuville, No. 98-1680 (filed 13 April 1999) (ordered published
26 May 1999)
Johnson wished to relocate his "fish market" business. He purchased a
property that was listed for sale by a real estate broker, who acted as
the owners' sales agent. After the closing, Johnson sued the broker
alleging he had been negligent and had misrepresented an easement. A
jury found that the broker had not misrepresented anything to Johnson,
but also found that the broker was 65 percent negligent and Johnson 35
percent negligent concerning the easement. The broker appealed.
The court of appeals, in an opinion by Judge Myse, affirmed. The
broker first argued that under section
452.23(2)(b) of the Wisconsin Statutes, he was not required to
disclose the nonexistence of the easement because a qualified
third-party report disclosed information about the easement. Rejecting
the claim, the court noted that there was a separate basis for liability
in the record. The broker had consulted reports that were inconsistent
with the broker's belief that an easement existed, yet he did not alert
Johnson that further investigation might be required.
The court also held that section 452.23(2)(b) did not apply in this
case because the broker's conduct fell outside the statute's protection.
The statute relieves brokers of liability regarding the disclosure of
information about a property's physical condition or any other
information relating to the transaction. It does not, however, "apply to
separate acts of negligence" by the broker. Finally, sufficient evidence
supported the jury's finding on causation.
Zoning
Denial of Conditional Use Permit - Certiorari Review -
Notice of Claim Statute Inapplicable
Kapischke v. County of
Walworth, No. 98-0796 (filed 7 April 1999) (ordered published
26 May 1999)
The county planning commission denied the plaintiffs' application for
a conditional use permit to construct a communication tower on property
zoned for agricultural use. The plaintiffs then filed for certiorari
review of the commission's decision in the circuit court. They did not,
however, comply with the notice of claim statute (Wis. Stat. section
893.80) prior to commencing the certiorari proceeding. Among the
issues on appeal was whether that failure should result in the dismissal
of their suit.
In a decision authored by Judge Nettesheim, the court noted a
conflict between section
59.694(10) of the Wisconsin Statutes, which governs certiorari
review of county zoning decisions, and the more generally applicable
notice of claim statute. The former provides that a person aggrieved by
a zoning decision may, within 30 days after the filing of the decision,
commence an action seeking the remedy available by certiorari. On the
other hand, the notice of claim statute provides that before an
individual may maintain an action against a municipality, the
municipality must be notified of the claim and has 120 days to disallow
it.
The court of appeals concluded that the provisions of section 59.694
take precedence over those set forth in the notice of claim statute. The
court did not believe this holding would frustrate the purpose of the
notice of claim statute, which is designed to give municipalities an
opportunity to address the merits of a claim. Said the court, in a
certiorari review setting, the governmental agency has already acted
before the action is commenced at the circuit court level. The purpose
of certiorari review is simply to obtain judicial review of governmental
agency action and not to commence an original action based on claims
unknown to the agency. Thus, the court held that the notice of claim
statute does not govern certiorari actions brought pursuant to section
59.694(10).
Land Use Regulations - Direct Voter Action Through Initiative
Heitman v. City of Mauston
Common Council, No. 98-3133 (filed 29 April 1999) (ordered
published 26 May 1999)
This case arose because of the contemplated construction in Mauston
of a secure treatment facility for sexually violent person commitments.
The plaintiff and others who oppose the construction of the facility
commenced an initiative pursuant to Wis. Stat. section
9.20 and requested the city either to adopt the proposed initiative
without alteration or to submit it to the electorate for a vote. When
the city refused, the plaintiff commenced an action for mandamus to
require it to do so and for injunctive relief. The city moved for
summary judgment and the circuit court granted the motion.
The court of appeals, in a decision authored by Judge Roggensack,
affirmed the circuit court. An initiative is a direct voter action to
enact new law within a particular jurisdiction. In Wisconsin the right
of initiative is not reserved to the people in the constitution. Rather,
by the adoption of the state constitution, the people of Wisconsin
delegated all rights of lawmaking to the Wisconsin Legislature.
Therefore, in this state, initiative is a creature of statute and its
use must comport with the requirements established by the Legislature,
both for direct action legislation and for the specific area of
legislation in which initiative is attempted.
The appellate court concluded that the proposed initiative is either
a zoning ordinance or an amendment to the zoning ordinances of the city
of Mauston and that zoning and amendments to zoning may be accomplished
only in compliance with the procedures established in Wis. Stat. section
62.23 - not by initiative.
Judge Dykman filed a dissenting opinion.
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
