Vol. 73, No. 10, October 2000

Court of Appeals Digest

Attorney Fees

Hourly Rate - Skill and Experience - Evidence on Fees

Crawford County v. Masel, 2000 WI App 172 (filed 27 July 2000) (ordered published 30 Aug. 2000)

The plaintiff promoted and organized "Weedstock 1997." When the county brought a forfeiture action against him, the plaintiff counterclaimed that the ordinance regulating "large assemblies" was unconstitutional. The court agreed, dismissed the ordinance prosecution, and the plaintiff instituted this action under 42 U.S.C. § 1988 to recover attorney fees for 91 hours of work at $285 per hour. The trial judge found that the hours spent were reasonable but reduced the hourly rate to $175.

The court of appeals, in an opinion written by Judge Roggensack, reversed. The judge was obligated to determine the prevailing market rate for an attorney with a given level of skill and experience. The plaintiff's evidence clearly established his attorney's skill, experience, and the rates for attorneys with comparable credentials. The county's rebutting evidence consisted of an affidavit providing "only curt conclusions without averring the factual predicates necessary to support those conclusions" ¶ 15). The judge also relied on his own experience. "Although [the court has] recognized that a trial judge has the expertise to evaluate the reasonableness of attorney's fees, [it has] also held that when the reasonableness of the fees is contested, the expertise of a trial judge is not a substitute for evidence" (¶ 16). In sum, the trial judge abused his discretion.

Criminal Procedure

Preliminary Hearings - Timeliness of Filing of the Information - Wisconsin Prevailing Wage Law Not Preempted by ERISA

State v. Phillips, 2000 WI App 184 (filed 18 July 2000) (ordered published 30 Aug. 2000)

The defendant is the president of a corporation that worked on local government construction projects employing a number of laborers. He allegedly failed to pay several workers the prevailing wage required under Wis. Stat. section 66.293. He also purportedly signed affidavits of compliance for those projects, certifying that prevailing wages had been paid to the workers.

A criminal complaint charged the defendant with several crimes, including three felonies. A preliminary hearing was commenced before a court commissioner on July 22, 1999. At the conclusion of testimony on Aug. 19, the state requested bindover and the defendant sought dismissal. The court commissioner withheld ruling and indicated that a written decision would be issued regarding the bindover and the defendant's motion. That decision, which bound the defendant over, was issued on Sept. 16.

A week later the defendant moved to dismiss claiming that the state failed to comply with Wis. Stat. section 971.01(2), which requires that the information be filed with the clerk "within 30 days after the completion of the preliminary examination." According to the defendant, the state had to file an information within 30 days of the date on which testimony at the preliminary hearing was concluded (Aug. 19) and that it had failed to do so. The circuit court agreed and dismissed the case.

On this issue the court of appeals reversed. In a decision authored by Judge Hoover, the court concluded that a preliminary hearing is not completed until the court finishes scrutinizing the evidence and renders a decision on bindover. Here, the state complied with the statute cited above by filing its information within 30 days following issuance of the bindover decision.

The court also considered the question of whether Wisconsin's prevailing wage law is preempted by the federal Employee Retirement Security Act (ERISA). [ERISA is a comprehensive federal statute regulating employee pension and welfare plans. Its provisions supercede state laws that relate to employee benefit plans.] Wisconsin's prevailing wage law for municipal projects is set forth in Wis. Stat. section 66.293. Under its terms, a contractor must pay the total prevailing wage as determined by the Department of Workforce Development. A contractor only has to pay the total prevailing wage; it has the choice to pay prevailing wages entirely as salary or as a combination of salary and benefits.

The appellate court concluded that the state's prevailing wage law is not preempted by ERISA. The prevailing wage law only requires the payment of wages; it does not require either payment of or contribution toward any fringe benefit. The court noted that its decision follows other jurisdictions that have held that ERISA does not preempt prevailing wage statutes that consider the amount of usual benefits in computing the total prevailing wage, but do not require that employers actually make such contributions. The prevailing wage statute regulates wages, not benefits. The statute does not prescribe the type of benefit plans or the amount of contributions. An employer can comply with the prevailing wage statute without any ERISA plan whatsoever.

Sentencing - Restitution - Determining Amount Owed

State v. Evans, 2000 WI App 178 (filed 27 July 2000) (ordered published 30 Aug. 2000)

At the sentencing in this case, the court ordered restitution "up to 25% of the defendant's prison earnings account," leaving it to the Department of Corrections to determine the specific amount. On postconviction motion the court explained that its order meant, in essence, that restitution was "to be determined" by the Department of Corrections "pursuant to standard Milwaukee County procedure." The court indicated that it was simply following what is apparently the procedure used in Milwaukee County courts where restitution is ordered in a "not more than" amount and the determination of the exact figure is left to the DOC.

In a decision authored by Judge Eich, the court of appeals concluded that the restitution statute (Wis. Stat. section 973.20) does not give the court authority to impose restitution in the manner employed in this case. The statute sets forth four separate alternative procedures to be used by courts in cases where restitution is ordered and the amount is, for whatever reason, unable to be determined at the sentencing hearing. The circuit court did not follow any of these procedures: it did not direct that a restitution order be prepared and filed; it did not adjourn the sentencing for up to 60 days for referral to a referee or arbitrator; it did not obtain the defendant's consent for referral to an agreed-upon arbitrator; and it did not send the matter to a referee for a hearing and findings. Instead, the court set up and followed an entirely different procedure which is not authorized by the applicable and controlling law.

Search and Seizure - Warrantless Entry of Home - Community Caretaker Exception - Protective Sweeps

State v. Horngren, 2000 WI App 177 (filed 25 July 2000) (ordered published 30 Aug. 2000)

Police were dispatched to an apartment to investigate a report that a person was threatening to commit suicide. While en route, the officers were informed that, on two prior occasions, a resident of that apartment (the defendant) had been committed to a mental health facility for attempted suicide with one of those attempts involving an overdose of pills. The officers also were informed that seven firearms were confiscated on one of those prior occasions, but that the weapons subsequently were returned.

Upon arrival, the police encountered the defendant at the apartment door. A struggle ensued but the officers succeeded in forcing the door open. The defendant was handcuffed and was asked whether anyone else was in the apartment. He responded that there was a girl in the back bedroom. An officer proceeded down the hallway looking for the back bedroom. After walking into a room that was in the back of the apartment, he discovered that there was no bed in the room but did observe marijuana on top of a desk. The officer did locate a female sleeping in the middle bedroom who identified herself as the lessee of the premises. Both she and the defendant subsequently gave the officers consent to fully search the apartment during which more than 500 grams of marijuana, a scale, and other drug paraphernalia were located. As a result, the defendant was charged with possession with intent to deliver a controlled substance.

The defendant filed a motion to suppress the evidence, contending that the entry and initial search of the apartment were conducted in violation of his Fourth Amendment rights. The trial court denied the motions and the defendant thereafter pled guilty.

In a decision authored by Judge Wedemeyer, the court of appeals affirmed. The court first considered whether the police entry of the premises was covered by the "community caretaker" exception to the warrant requirement. To resolve this issue, the court had first to determine whether the conduct involved was truly "bona fide community caretaker activity," which is defined as being totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Here, the court concluded that the motivation of the police in investigating the complaint was to render aid to someone threatening to commit suicide, not to investigate any criminal activity. The court also had to determine whether, by using a balancing test, the public good arising from the caretaking activity outweighed the intrusion into the individual privacy that resulted. It concluded that the balance tipped in favor of the police action. In coming to the aid of the defendant, when it believed that he was in danger of death or physical harm, the police were endeavoring to accomplish public good.

The defendant also argued that, even if the entry was permitted pursuant to the community caretaking function, the initial cursory search of the other rooms, which resulted in the discovery of marijuana, was unconstitutional. He claimed that the "protective sweep" doctrine did not apply here because it authorizes a brief search, incident to an arrest, of the areas immediately adjoining the place of arrest. Because there had been no arrest at that point, the defendant argued that there was no justification to conduct a protective sweep.

The court of appeals disagreed. A protective sweep is a brief search of the premises, ordinarily occurring during an arrest, to ensure the safety of those on the scene. An arrest, however, does not define the sole context in which a protective sweep can constitutionally occur. Rather, within the purview of a bona fide caretaker activity, the reasonableness of an officer's actions, evaluated under the totality of the circumstances, determines the constitutionality of the officer's conduct. Thus, the question is whether the "sweep" that occurred here was reasonable under the circumstances, and the court concluded that it was.

After the police entered the apartment and handcuffed the defendant (who was nude at the time), he told them that there was a "girl" in the back bedroom. The police had been summoned to the apartment pursuant to a suicide threat and they suspected weapons on the premises. Despite the struggle and noise that occurred when they attempted to enter, there had been no response from "the girl." It would have been unreasonable for the police not to check on the status of the girl under the circumstances. They did not know if she was in danger or otherwise posed a threat to the officers' safety. Accordingly, the limited search that occurred was reasonable.

NGI Pleas - Waiver of Jury in Mental Responsibility Phase - Consent of the State Required

State v. Murdock, 2000 WI App 170 (filed 20 July 2000) (ordered published 30 Aug. 2000)

The defendant was charged with numerous felonies, including first-degree intentional homicide. Originally, he entered pleas of not guilty and not guilty by reason of mental disease or defect. Ultimately, he entered no contest pleas to the criminal charges but maintained his plea of not guilty by reason of mental disease or defect (NGI).

The defendant sought to waive jury for the mental responsibility phase of the proceedings. The state was not willing to consent to waiver of jury. The circuit court denied the defendant's motion to compel jury waiver. A jury trial on the issue of the defendant's mental responsibility was conducted. Ultimately, the jury concluded that, although the defendant suffered from a mental disease at the time of the crimes, he did not lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

The court of appeals affirmed in part and reversed in part. The court first considered whether the consent of the state is required when a defendant seeks to waive jury in the mental responsibility phase of bifurcated NGI proceedings. In a decision authored by Judge Dykman, the court concluded that such consent is required. Wis. Stat. section 972.02(1) provides that criminal cases shall be tried by jury unless the defendant waives jury with the approval of the court and the consent of the state. Based upon this statute and on the nature of the decision made in the responsibility phase of a bifurcated trial, the appellate court held that the statute applies when a defendant seeks to waive a jury in the responsibility phase.

The defendant also contended that he was entitled to a new trial in the interests of justice on the issue of his mental responsibility because there is a substantial probability that a new trial would produce a different result. Considering the evidence presented at trial as a whole, the appellate court agreed and therefore granted discretionary reversal under Wis. Stat. section 752.35.

Family Law

Divorce - Property Division - Sick Leave Account - Deferred Compensation Plan

Preiss v. Preiss, 2000 WI App 185 (filed 26 July 2000) (ordered published 30 Aug. 2000)

The parties divorced after a 26-year marriage. At the time of the divorce, the husband was retired. The court determined that the marital estate would be divided equally. Among the issues on appeal was whether the court erroneously exercised its discretion by considering the husband's sick leave account as an asset suitable for division and by dividing the husband's deferred compensation plan pursuant to a qualified domestic relations order (QDRO).

The husband's unused sick leave account from his prior employment was valued at $70,000. Although he could not withdraw for cash the value of these funds, he did have this amount available to offset his monthly health insurance costs during retirement. In a decision authored by Judge Anderson, the court of appeals concluded that the sick leave account was erroneously considered an asset of the marital estate. The husband cannot convey his interest in the account; he cannot gift it; he cannot transfer it. Because the account has no cash value and cannot be sold or transferred, it does not have a fair market value. If property has no fair market value, the circuit court cannot place an independent value upon it, and it should thus not have been included as an asset in the marital estate.

The court noted that this case concerns the division of property in a marital estate. If maintenance or child support were at issue, then the fact that the husband receives his health insurance premiums through the sick leave account would likely be considered in determining his living expenses and his ability to pay maintenance or child support.

The circuit court also ordered that the husband's deferred compensation plan be divided by a QDRO. Both parties agreed that this was an error because Wis. Stat. section 40.08(1) does not permit the division of a deferred compensation plan pursuant to a QDRO. The appellate court agreed that this statute precludes such division.

Sexual Predator Law

Timeliness - Discharge Date

State v. Thomas, 2000 WI App 162 (filed 12 July 2000) (ordered published 30 Aug. 2000)

This case concerns the timeliness of a petition seeking the commitment of an allegedly sexually violent person. The court of appeals held that Wis. Stat. section 980.02(2)(ag) clearly and unambiguously requires that a petition can be filed only within 90 days of a defendant's release or discharge from a criminal sentence for a sexually violent offense (¶ 17). Put differently, the state cannot hold an inmate beyond his or her discharge date while it pursues a Wis. Stat. chapter 980 commitment.

Torts

Medical Malpractice - Timeliness - Repose - Mediation Request

Landis v. Physicians Ins. Co., 2000 WI App 164 (filed 11 July 2000) (ordered published 30 Aug. 2000)

A patient died on March 17, 1994, shortly after undergoing heart surgery. His wife, the plaintiff, asserted that she first learned of alleged malpractice in February 1999. On March 8, 1999, she requested mediation pursuant to Wis. Stat. section 655.44(4). She filed suit on July 2, after completing mediation. The defendant moved to dismiss because the suit was filed more than five years after the alleged malpractice occurred. The circuit court denied the motion.

The court of appeals, in a decision authored by Judge Hoover, reversed. Section 893.55 creates both a statute of limitations and a statute of repose for medical malpractice claims. It was undisputed that the action was filed more than five years after the act or omission and was therefore untimely. The court of appeals rejected the plaintiff's arguments that 1) the mediation request tolled the statute of repose or 2) the request commenced the action. Section 655.44(4) unambiguously tolls only statutes of limitations; it does not toll the section 893.55 statute of repose (¶ 8). (The court addressed the policy distinctions between the two types of statutes.) Moreover, the statutes foreclosed the plaintiff's second argument by specifically providing that a claimant may "avoid filing an untimely action by commencing a circuit court action first and then requesting mediation" (¶ 17).

Collateral Source Rule - Medical Expenses - Insurers' Settlements

Reed v. Bradley, 2000 WI App 165 (filed July 27, 2000) (ordered published 30 Aug. 2000)

The court of appeals, in a decision written by Judge Eich, affirmed an order awarding the plaintiffs about $700 for medical expenses. The parties stipulated that the Reeds' medical expenses were about $3,000, which their insurer, State Farm, paid. The other driver's insurer, American Family, settled with State Farm prior to trial. State Farm accepted payment of 75 percent of the stipulated medical expenses (about $2,300) and assigned its subrogation claim to American Family. A jury returned a verdict for the Reeds, awarding damages of $23,000, including the stipulated medical expenses. The Reeds conceded that American Family was entitled to the $2,300 credit but argued that the balance, about $700, should revert to them. The trial judge agreed.

In affirming, the court of appeals first rejected American Family's contention that the Reeds had been "unjustly enriched" because "the Reeds were entitled to the benefit of the insurers' bargain by virtue of having paid premiums for health care over time" (¶ 5). Nor did the ruling conflict with the "established public policy favoring settlements." The agreement between the two insurers did not "settle" the action or "any major portion of it." The deal "was an agreement between the defendant's insurer and the holder of a limited subrogated interest to settle that limited claim for 75 percent of its face value" (¶ 6).

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