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Vol. 72, No. 8, August 1999

Court of Appeals Digest

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

| Appellate Procedure | Attorneys |
| Campaign Contributions | Criminal Law | Criminal Procedure |
| Evidence | Frivolous Actions | Trade Secrets |

Timeliness - President's Day

Klingbeil v. Perschke, No. 99-0488 (filed 20 May 1999) (ordered published 30 June 1999)

The court of appeals, per curiam, dismissed a defendant's appeal as untimely. Since a notice of entry of judgment had been filed, the defendant had 45 days to file a notice of appeal. The forty-fifth day was Saturday, Feb. 13, 1999. It was undisputed that the defendant had one more day to file the notice of appeal. The issue was whether the additional day was Monday, which happened to be President's Day, or the next day, Tuesday. The defendant filed the notice of appeal on Tuesday.

The court of appeals held that the notice was untimely by application of section 801.15(1)(b) of the Wisconsin Statutes. Although President's Day was a holiday for purposes of some statutes, the circuit court clerk's office was open that day and thus the defendant was obligated to file the notice of appeal that Monday.

Clients - Confidentiality - Release of Records

Thiery v. Bye, No. 98-2796 (filed 4 May 1999) (ordered published 30 June 1999)

A client brought claims for legal malpractice and invasion of privacy against her lawyer and his firm. The lawyer had represented the client in a personal injury claim that was later settled. The lawyer requested the client's consent to use her medical records and deposition transcripts in a class taught at a technical college by a nurse/investigator employed by the lawyer's office. The lawyer promised in writing that the client's identity would be "sanitized" through redaction. The records were never redacted but the client did receive $500 in exchange for the technical college's right to use the material. The trial judge dismissed the claims, ruling that the lawyer had no duty to redact the documents.

The court of appeals, in an opinion written by Judge Myse, affirmed in part and reversed in part. First, the lawyer clearly had a duty. The record belied the lawyer's claim that no attorney-client relationship existed at the time of the request to use the records (for example, the settlement had not yet been distributed). The lawyer's breach of his promise to redact the records is "measured from the time he made the representation to her," even though the actual breach occurred after the "attorney-client relationship terminated." Moreover, "the confidentiality of a client's records is ongoing and transcends the termination of the case." The court relied in part on SCR 20:1.6(a) (1998), the commentary to which provides: "The duty of confidentiality continues after the client-lawyer relationship has terminated."

Summarizing its holding, the court stated "that an attorney has a duty to maintain the confidentiality of documents in his possession as a result of legal services rendered to a client. This duty exists notwithstanding that litigation may or may not be pending or that services are completed. To contend otherwise is inconsistent with an agent's duty to protect a principal's confidential information and would limit an attorney's obligation to his client to only that conduct performed while litigation is being prosecuted. It would remove any obligation for the reasonable care and handling of confidential documents in counsel's possession as a result of his legal representation of a client."

The lawyer also acquired a duty based on his representation to the client that her identity would be redacted before the records were released. Thus, the lawyer had no authority to release the client's confidential records other "than in accordance with the conditions imposed pursuant to his representation and [the client's] authorization." (The court also held that expert testimony was not necessary to establish the duty.)

Finally, the court upheld the dismissal of the client's claim against the nurse/investigator in her capacity as a law firm employee. Her work as an instructor was entirely separate from her employment with the firm. For purposes of summary judgment, the record supported the trial court's finding that the nurse/investigator acted entirely within her capacity as a technical college instructor when soliciting and copying the records.

Lobbyists - Contributions by Spouses of Lobbyists

Katzman v. Wisconsin Ethics Board, No. 98-2884 (filed 6 May 1999) (ordered published 30 June 1999)

William Katzman is a lobbyist, licensed by and registered with the Ethics Board to engage in lobbying. His wife Joanne is not a lobbyist. The circuit court concluded that the statute prohibiting lobbyists from making contributions to incumbents and candidates for partisan elective state office, except during a specified period preceding general elections, cannot be violated when a political contribution is made by a lobbyist's spouse from marital funds. The court thus enjoined the board from investigating political contributions made by Joanne except to the limited extent necessary to determine whether she made any such contributions from William's separate property.

The court of appeals, in a decision authored by Judge Deininger, affirmed. It concluded that the trial court correctly interpreted the statutes governing political contributions. Wis. Stat. section 13.625(1)(c) contains no prohibition against a lobbyist's spouse making political contributions, from any source, at any time. The conduct of a lobbyist's spouse is not addressed at all in any of the lobby law provisions of chapter 13.

The court also looked to chapter 11 of the Wisconsin Statutes, which governs campaign financing, to determine what is and what is not permissible with respect to the making of campaign contributions. Section 11.24(1) provides, among other things, that "no person may, directly or indirectly, furnish funds or property to another person for the purpose of making a contribution in other than the person's own name." The court concluded that it is clear that neither a lobbyist nor anyone else may "furnish funds" to another person for subsequent transfer to a candidate, in an effort to disguise the true source of a political contribution. However, it held that when a married person makes a contribution to a candidate from his or her marital property, the person does so with his or her own funds, which means that the funds were not "furnished" by his or her spouse within the meaning of section 11.24(1).

Sexual Assault of a Child - "Person Responsible
for Welfare of Child"

State v. Ward, No. 98-2530-CR (filed 13 May 1999) (ordered published 30 June 1999)

The defendant was convicted of four counts of failing to act to protect a child from sexual assault when she had a duty to do as a "person responsible for the welfare of a child." See Wis. Stat. § 948.02(3). She argued that the trial court erred when it instructed the jury that a "person responsible for the welfare of a child," which is defined at section 948.01(3), includes a person "used by" one legally responsible for the child's welfare to exercise temporary control or care for the child. The statute speaks in terms of a person employed by one legally responsible for a child's welfare to exercise temporary control or care for the child. The defendant argued that she was not so employed. The evidence showed that the assaults happened when neighbor children visited the defendant's house trailer. They paid such visits regularly, the visits were with the permission of the victims' parents, and the visits were welcomed by the defendant. The defendant was never paid for caring for any of the victims.

In a decision authored by Judge Dykman, the court concluded that the defendant was a person responsible for the welfare of a child within the meaning of section 948.02(3). The Wisconsin Supreme Court has held that a person may be responsible for the welfare of a child if he or she is "used by the child's legal guardian to act as a caretaker for the child." See State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996). Therefore, all that is necessary for establishing that one is legally responsible for a child's welfare is that the person who is legally responsible for the child's welfare "make use of" a person who then knowingly fails to prevent the sexual assault of the child. The circuit court therefore did not erroneously exercise its discretion by instructing the jury that "a person employed or used by one legally responsible for the child's welfare to exercise temporary control or care for the child" could be found guilty of failing to act to protect a child from sexual assault.

Attempted First-degree Intentional Homicide and
First-degree Reckless Injury - Fetus as the Victim
of Its Mother's Acts

State v. Deborah J.Z., No. 96-2797-CR (filed 26 May 1999) (ordered published 30 June 1999)

One week before her due date, the defendant was drinking in a local tavern when she believed she was going to have her baby. At the hospital she was uncooperative, belligerent at times, and very intoxicated. Her blood alcohol concentration exceeded 0.30 percent. The defendant allegedly told a nurse, "if you don't keep me here, I'm just going to go home and keep drinking and drink myself to death, and I'm going to kill this thing because I don't want it anyways."

The defendant consented to a cesarean section and gave birth to a baby girl. At birth the baby was extremely small, her physical features presented fetal alcohol effects, and her blood alcohol level was .199 percent. After a few weeks the baby was discharged to a foster family.

The state charged the defendant with attempted first-degree intentional homicide and first-degree reckless injury. She was bound over following preliminary hearing and was permitted to appeal the denial of a motion to dismiss the information for lack of probable cause at the preliminary examination.

On appeal the defendant argued that the state did not establish at the preliminary hearing that it had probable cause to charge her with these crimes. She urged that her alleged act of consuming alcohol while pregnant does not satisfy the statutes' requirement that the act be perpetrated against another "human being."

In a decision authored by Judge Anderson, the court of appeals concluded that the term "human being" as used in the statutes involved in this case was not intended by the legislature to refer to an unborn child. Section 939.22(16) of the Wisconsin Statutes defines a human being as "one who has been born alive." The court concluded that this definition applies to any statute using that term in chapter 940 of the Criminal Code. According to the plain language of the statutes, the court determined that the Legislature did not intend for the statutes under which the defendant was charged to apply to actions directed against an unborn child.

The state also argued that because the unborn child survived and was successfully delivered, the "born alive" doctrine permits prosecution. The appellate court noted that 31 states, by judicial decision, have adopted the "born alive" rule that if an unborn child suffers a prenatal injury at the hands of a third party and is born alive, certain civil or criminal charges may be brought against the third party. However, the state was unable to point to a case with a situation, similar to that in this case, in which the "born alive" rule has been applied for self-abuse by the mother which negatively impacts an unborn child that is later "born alive."

Said the court in summary, to be convicted of attempted first-degree intentional homicide and first-degree reckless injury, the defendant must attempt to kill or injure someone who has been born alive. This is not what the defendant was charged with doing in this case. The decision whether to include an unborn child in the definition of a "human being" is a policy issue best addressed by the Legislature.

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