Vol. 73, No. 3, March 2000

Court of Appeals Digest

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

Note: Each case summarized in the Court of Appeals Digest includes its new public domain citation.

| Administrative Law | Civil Procedure | Criminal Procedure | Domestic Abuse | Employment Law | Family Law | Insurance | Lemon Law | Medical Assistance | Taxation | Torts | Trials |

Administrative Law

Department of Natural Resources - Power to Challenge Constitutionality of Statute

Silver Lake Sanitary District v. Wisconsin Department of Natural Resources, 2000 WI App 19 (filed 9 Dec. 1999) (ordered published 19 Jan. 2000)

The Department of Natural Resources (DNR) challenged the constitutionality of Wis. Stat. section 30.2037 which sets the ordinary high water mark of Big Silver Lake in Waushara County at 867 feet above mean sea level. The circuit court granted DNR's motion for a declaratory judgment, holding that the DNR had standing to challenge the constitutionality of the law and that the law was unconstitutional as a local bill in a multi-subject bill.

Several months later the Wisconsin Legislature enacted section 30.103, which permits a sanitary district to set the ordinary high water mark of any lake that is wholly within its district and prohibits the DNR from setting a different level. The DNR sought a declaratory judgment that this statute also is unconstitutional. The circuit court agreed and held that it is an unconstitutional violation of the public trust doctrine and the forever-free clause of the Wisconsin Constitution.

On appeal the DNR conceded that generally a state agency cannot attack a statute's constitutionality. However, it argued that, in limited circumstances, a state agency can challenge a statute's constitutionality if an issue of great public concern is presented.

In a majority decision authored by Judge Roggensack, the court of appeals reversed the circuit court. It concluded that the great public concern exception relied upon by DNR applies only to cases where a private litigant and a creature of the state are involved. There were no private litigants in this lawsuit and therefore the DNR did not have standing to contest the constitutionality of the statutes cited above.

Judge Vergeront filed a concurring opinion.

Civil Procedure

Personal Jurisdiction - Long-arm Statute

Housing Horizons v. The Alexander Co., 2000 WI App 9 (filed 9 Dec. 1999) (ordered published 19 Jan. 2000)

The Anderson Company brought a third-party complaint against Verkler Inc., an Indiana corporation. The circuit court dismissed the action because Verkler lacked sufficient contacts with Wisconsin to trigger the state's long-arm statute.

The court of appeals, in an opinion written by Judge Deininger, affirmed. Although long-arm statutes are liberally construed in favor of jurisdiction, the plaintiff bears the burden of showing that the conditions were met. Under Wis. Stat. section 801.05(4) Wisconsin jurisdiction extends to out-of-state defendants in situations where there is "both an 'act or omission outside the state by the defendant or his agent' and an 'injury to person or property within the state which is claimed to arise out of the foreign act or omission.'" The statute also requires specified "additional contacts."

In this case the plaintiff claimed that Verkler engaged in "solicitation or service activities" within Wisconsin. The court held, however, that "Verkler's participation in the two meetings" in Wisconsin did not constitute the necessary "service activities." The case law "suggested" that a defendant's contacts, when they are limited to a "single isolated transaction," are insufficient as "service activities." Other authority led the court to conclude "that the legislature contemplated something beyond isolated and fleeting contacts with our state when it enacted the 'service activities' requirement." ¶14.

Criminal Procedure

Search and Seizure - Seizure of Attorney's Files by Trustee Attorney - Governmental Conduct - Abandonment of Lawyer's Files

State v. Knight, 2000 WI App 16 (filed 15 Dec. 1999) (ordered published 19 Jan. 2000)

Knight is a disbarred attorney who was serving a prison sentence when the facts described below occurred. During the course of another criminal proceeding involving him, the local circuit judge received information that a former employee of Knight had possession of Knight's client files at her home. This information also revealed that the employee was intending to dispose of the files by putting them out on the curb for disposal.

Concerned about the confidentiality of the files, the judge appointed another lawyer as the trustee attorney for the files pursuant to SCR 22.271(2)(a). This Supreme Court Rule provides that when a sole practitioner attorney has abandoned the practice of law for at least 21 days, any interested person or person licensed to practice law in Wisconsin may file a petition in the circuit court alleging such abandonment and that no satisfactory arrangements have been made to continue the practice. The rule further provides that upon a finding that the attorney has abandoned the practice, and if no other satisfactory arrangements have been made to continue the practice, the circuit court shall appoint a trustee attorney who may take action to, among other things, protect the clients' rights, files, and property.

The judge's order appointing the attorney trustee directed him to take charge of the files. The lawyer went to the former employee's residence and, with her help, removed files from a garage attic. He took the files to his office and reviewed them. An audit of the files revealed that approximately $78,000 was missing from a trust fund for which Knight was the trustee. Based upon this information the state charged Knight with felony embezzlement. Knight brought a motion to suppress claiming that the files were obtained as a result of an illegal search and seizure. The circuit court denied the motion and the defendant pled guilty.

The court of appeals, in a decision authored by Judge Nettesheim, affirmed. It concluded that governmental conduct occurred when the trustee attorney acted pursuant to a circuit court order to seize the client files and search them. Therefore, those activities had to comport with the requirements of the Fourth Amendment. The appellate court further agreed with the circuit court that the files had been abandoned by Knight and that therefore no search occurred within the meaning of the Fourth Amendment. When a person turns material over to a third party, such as happened in this case when the attorney turned the files over to his former employee, the attorney has no Fourth Amendment protection if the third party reveals or conveys the material to governmental authorities. In short, said the court, the defendant abandoned his clients' files just as he had abandoned his clients.

Probation - Validity of Probation Condition

State v. Simonetto, 2000 WI App 17 (filed 15 Dec. 1999) (ordered published 19 Jan. 2000)

The defendant was charged with 15 counts of possession of child pornography and entered a plea of no contest. The circuit court imposed and stayed sentence and placed him on probation for 16 years. One of the conditions of probation was "not to go where children may congregate." The defendant challenged this condition in a post-conviction motion, which the circuit court denied. At the hearing the court rejected the defendant's argument that the probation condition was overly broad and vague, stating that if he didn't understand the meaning of the court's judgment, he could refer to the probation rules promulgated by the Department of Corrections. Specifically, the court referred to a standard condition of sex offender supervision, which prohibits entry into any area frequented by persons under age 18, including, but not limited to, schools, day care centers, playgrounds, parks, beaches, pools, shopping malls, theatres, or festivals without prior approval from the probation agent.

In a decision authored by Judge Brown, the court of appeals affirmed. It concluded that the condition of probation described above, when examined in light of the court's clarification thereof at the post-conviction motion hearing, was not overly broad. Further, the court concluded that the condition is eminently reasonable and necessary inasmuch as psychotherapists familiar with his case testified without contradiction that the defendant is a pedophile and a nascent child molester. The court thought that the condition of probation was necessary to protect the community and may even help the defendant overcome his problem by removing what for him is a stimulus.

Finally, the court rejected the defendant's constitutional challenge that the probation condition violated his right of freedom of association and right to travel. The defendant is a convicted felon and his conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to his rehabilitation. These criteria were satisfied by the probation condition in this case.

Domestic Abuse

Injunctions - Duration - Constitutionality of Wis. Stat. Section 813.12(4)

Hayen v. Hayen, 2000 WI App 29 (filed 23 Dec. 1999) (ordered published 19 Jan. 2000)

The appellant contended that the circuit court erred when it refused her request for a two-year injunction and instead issued the injunction for only six months. She also argued that the court erred when it declined to order the sheriff to assist in placing her in physical possession of her residence. On both issues the court of appeals, in a decision authored by Judge Deininger, agreed.

Wis. Stat. section 813.12(4)(c) provides that an injunction issued under the statute is "effective according to its terms, for the period of time that the petitioner requests" but not longer than two years. Accordingly, once a circuit court determines that it will issue a domestic abuse injunction, the court is required to issue the injunction for the length of time the petitioner requests subject to the two-year limitation.

The respondent argued that, if the statute is interpreted as unequivocally requiring the circuit court to grant a domestic abuse injunction for the period that a petitioner requests, then it violates his rights to a jury trial, due process, and equal protection of the law. On all three counts the court of appeals disagreed.

Finally, the appellate court agreed with the appellant's claim that the circuit court erred when it declined to order the sheriff to assist in placing her in possession of her residence. Section 813.12(6) plainly requires the court, if it elects to grant an injunction and the petitioner so requests, to direct the sheriff's assistance in placing the petitioner in physical possession of his or her residence. However, the appellate court noted that nothing in this statute or in this decision should be viewed as interfering with a family court's authority to determine which party should have temporary possession of the residence during the pendency of a divorce action, if one is commenced, or how the parties' property ultimately should be divided upon divorce.

At the time of the hearings on the appellant's petition for an injunction in this action, no family court had entered any order regarding occupancy of the parties' residence, nor had either party commenced a divorce action. The appellant conceded, and the court of appeals agreed, that if she were restored to physical possession of the parties' residence with the sheriff's assistance under section 813.12, and a family court were subsequently to award possession of the residence to her husband, she would then have to make arrangements to leave. The injunction, if still in effect, would then require her husband to avoid his wife's new residence. Similarly, if a family court had awarded possession of the parties' residence to the husband prior to the injunction hearings under section 813.12, those premises would no longer constitute the wife's residence, and she would have no right under the statute to the sheriff's assistance in obtaining physical possession of it.

Employment Law

Constructive Discharge - "For Cause" - Frivolous Appeals

Tennyson v. School District of the Menomonee Area, 2000 WI App 21 (filed 14 Dec. 1999) (ordered published 19 Jan. 2000)

The plaintiff resigned her position as a payroll clerk for a school district but then sued alleging that she had been constructively discharged. In a prior appeal the court held that constructive discharge did apply in the context of an ordinary employment contract with a "for cause" provision, and that "an employer may constructively discharge a person where working conditions are so intolerable that a reasonable person is compelled to resign to avoid recurrence." On remand a jury found that she had been constructively discharged and awarded damages. This appeal and cross-appeal followed.

The court of appeals, in an opinion written by Judge Cane, affirmed. First, the court "elaborated" upon its earlier holding, reaffirming that constructive discharge does apply "in the context of an ordinary employment contract with a 'for cause' provision." A constructive discharge occurs where "an employee's working conditions [are] so intolerable that a reasonable person in the employee's position would have been compelled to resign." Besides conditions that are "objectively intolerable," the plaintiff must establish that they caused the resignation. Finally, the employer must have either deliberately created the conditions or knowingly permitted them to continue. The court's opinion elaborates upon the various elements. The record supported the jury's findings.

The court also took up several frivolous claims arguments. The plaintiff claimed that the defendant's summary judgment motion was frivolous and both parties exchanged frivolous appeals broadsides. The court of appeals affirmed the trial judge's decision that the motion was not frivolous and it curtly rejected the frivolous appeals arguments advanced by each side. Prior cases established that certain claims or arguments might themselves be frivolous but the court of appeals will not award fees "unless the entire appeal is frivolous" (emphasis original).

WFEA - Marital Status - Discrimination

Bammert v. LIRC, 2000 WI App 28 (filed 21 Dec. 1999) (ordered published 19 Jan. 2000)

Bammert was fired from her job at a food store. She filed a complaint alleging that she was unlawfully terminated because her husband, a policeman, had arrested her employer's wife. Bammert asserted that she was discriminated against based on her marital status contrary to the Wisconsin Fair Employment Act (WFEA). An administrative law judge dismissed the complaint and LIRC affirmed on the ground that marital status discrimination does not extend to the personal identity or characteristics of one's spouse. The circuit court affirmed LIRC's determination.

The court of appeals, in an opinion written by Judge Cane, also affirmed. The court was satisfied that LIRC's determination that marital status discrimination does not embrace "spousal identity" was a long-standing construction of the WFEA that was entitled to "great weight and deference" upon judicial review. It rejected Bammert's contention that this construction rendered parts of the WFEA "superfluous" (especially its anti-nepotism policies).

Family Law

Divorce - Enforceability of Fixed Maintenance Stipulations - Estoppel Doctrine

Whitford v. Whitford, 2000 WI App 18 (filed 7 Dec. 1999) (ordered published 19 Jan. 2000)

The parties were married in 1976 and divorced in 1994. At the time of the divorce, they entered into a partial marital settlement agreement that made arrangements for child custody and placement, and property and debt division. A circuit court hearing was held thereafter on certain disputed issues. After the judge decided those contested matters, the parties entered into a second stipulation resolving the issues of maintenance and family support. That stipulation provided that maintenance was denied to the husband and that maintenance to the wife was "a factor as to the family support payment set forth [in the stipulation]." It further provided that "maintenance as to [the wife] shall terminate and be forever banned on August 31, 1998. There shall be no extensions on maintenance beyond August 31, 1998 under any circumstances."

The court assured itself that the parties understood the effect of this stipulation and then accepted it and incorporated it into the divorce judgment. Several months before the maintenance expiration date, the wife brought a motion seeking a maintenance extension. After a hearing, the trial court declined to apply the estoppel doctrine to prevent her from asking for an extension and instead issued an order requiring payment of maintenance until 2001.

In a decision authored by Judge Curley, the court of appeals reversed. In Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984), the supreme court explained that the estoppel doctrine requires that "both parties entered into the stipulation freely and knowingly, that the overall settlement is fair and equitable and not illegal or against public policy, and that one party subsequently seeks to be released from the terms of the court order on the grounds that the court could not have entered the order it did without the parties' agreement."

In a later case, the supreme court broadened the application of the estoppel doctrine to prohibit a party from asking for a modification of the amount of maintenance when the parties' stipulation prohibited the modification. See Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991).

The court of appeals concluded that all of the conditions found in Rintelman and Nichols were met in this case. Accordingly, the wife should have been estopped from requesting an extension of the maintenance period.

Divorce - Property Division - Inclusion of Termination Benefits Package in Division of Assets

Garceau v. Garceau, 2000 WI App 7 (filed 1 Dec. 1999) (ordered published 19 Jan. 2000)

The issue before the court of appeals was whether an insurance company's termination benefits package for its employees, a type of deferred compensation plan, should be divided at the time of divorce as part of the marital estate. Unlike a pension, the plan does not set money aside in a pool designated for the benefit of the particular employee. Rather, the amount of termination benefit is based on the insurance agent's performance during the 12 months prior to termination and the number of years the agent has been with the company at the time of termination.

The circuit court concluded that "there is no way that an amount can be arrived at with any degree of accuracy." Thus it excluded the termination benefits package from the property division.

In a decision authored by Judge Brown, the court of appeals concluded that the termination benefits should have been included in the marital estate. While the extended earnings are not a pension plan, they are the insurance company's way of providing for its agents when their careers are over. As future benefits, they are similar enough to a pension plan to be treated like one when dividing the marital estate. Accordingly, the court of appeals remanded the case to the circuit court to use its discretion to reach an equitable division of this asset.

Insurance

UIM - Exhaustion of Limits

Danbeck v. American Family Mutual Ins. Co., 2000 WI App 26 (23 Dec. 1999) (ordered published 19 Jan. 2000)

While riding his bike Danbeck was severely injured by another driver, who had $50,000 in liability coverage through his insurer. Danbeck settled with the other driver and his insurer for $48,000. He then sought compensation for excess damages from American Family under his underinsured motorist (UIM) coverage. American Family denied the claim because Danbeck had failed to exhaust the other driver's liability coverage. The circuit court concluded that the exhaustion clause was ambiguous and ruled in Danbeck's favor.

The court of appeals, in an opinion written by Judge Vergeront, reversed. The policy was not ambiguous. "The phrase 'limits of liability ... exhausted by payment of judgments or settlements' unambiguously requires that the UIM policyholder receive payment from the liability insurer equal to the limits of applicable liability policies" ¶7.

"Payment" meant "compensation paid by the liability insurer and received by the insured." The court's construction did not contravene public policy or the case law construing UIM coverage.

Coverage - "Public or Livery Conveyance" - "Hire" to the General Public

Morris v. Buttney, 2000 WI App 23 (filed 28 Dec. 1999) (ordered published 19 Jan. 2000)

Buttney is the sole owner of a general delivery service that picks up and delivers "essentially anything except hazardous waste and groceries." While delivering a Federal Express (Fed Ex) package, he was involved in an accident. Buttney's vehicle was covered by a policy that excluded liability arising out of the operation of a vehicle "while it is being used as a public or livery conveyance." The circuit court agreed with the insurer that the clause precluded coverage.

The court of appeals, in an opinion written by Judge Cane, affirmed. Buttney argued that the plain meaning of "public or livery conveyance" limits its reach to the "hired transport of people only." Looking at case law and dictionaries, the court ruled that the term's common meaning included the transport for hire of things as well as people. Buttney's alternative argument was that his service was not available to the "general public" at the time of the accident because he was delivering solely for Fed Ex. The record, however, failed to support this claim. On the date of the accident Buttney was delivering exclusively for Fed Ex, but less than 5 percent of his business was done with Fed Ex. On most days he served any one who needed his services.

"Pay and Walk" Clause - Frivolous Claims - Notice

Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22 (filed 7 Dec. 1999) (ordered published 19 Jan. 2000)

Hoffman was injured in an automobile accident with Metz, a minor driver who was sponsored by her father. Metz was driving a truck owned by the Emmerichs and insured by Badger Mutual Ins. Co. Badger conceded that Metz was an additional insured under the policy. Badger acknowledged primary liability and paid its policy limits of $100,000 to Hoffman, who then released Badger and the Emmerichs (the owners) but not the Metzes. In this action the circuit court granted Badger's request to be dismissed as a party, ruling that Badger had no duty to defend or indemnify the Metzes and also ruling that the Metzes' insurer, Economy Preferred Ins. Co., had made frivolous arguments.

The court of appeals, in an opinion written by Judge Peterson, affirmed in part and reversed in part. First, the Badger policy's "pay and walk" provision was valid as to Metz. The case law requires that such provisions be "conspicuously displayed" in the policy so that the insured is given proper notice of the insurer's right to pay limits and "walk away." These requirements did not, however, apply to an additional insured such as Metz, who never would have seen much less read the policy anyway. Second, the court rejected the argument that "an insurer must obtain a written instrument or court order granting credit based on its settlement." Simply put, no legal authority supported this claim.

Third, the court reversed the frivolous claims finding. Although the circuit court has the authority to raise a frivolous argument issue on its own motion, the party accused of misconduct must be given adequate notice and an opportunity to respond. None of the other parties sought sanctions for frivolousness against Badger. Isolated comments in the record accused Badger of proffering arguments that "bordered" on the frivolous, but this fell short of adequate notice.

Lemon Law

Damages - Personal Injuries - Amended Complaint

Gosse v. Navistar Int'l Transport. Corp., 2000 WI App 8 (filed 9 Dec. 1999) (ordered published 19 Jan. 2000)

The plaintiff leased a truck and later complained that it vibrated excessively. He later sued for personal injuries and other damages under the Lemon Law. The trial court ruled that the Lemon Law does not permit damages for personal injuries and it also refused plaintiff's request to amend the complaint for a third time.

The court of appeals, in an opinion written by Judge Dykman, affirmed. First, the court found that the words "any damages" in Wis. Stat. section 218.015(7) are ambiguous. It held, however, that construing damages to include personal injuries would contravene the Lemon Law's purpose because it "was enacted to give consumers a means by which to ensure that a newly purchased vehicle would conform to its warranty." The plaintiff could have asserted a separate claim under "another law" to recover damages for personal injuries.

As to the second issue, the court upheld the trial judge's refusal to permit a third amendment of the complaint stating such a separate personal injury claim. The motion came more than 22 months after the filing of the original complaint and only two weeks before trial. The judge noted that the plaintiff could have stated an alternative claim in the original complaint. (A third issue relating to the form of the verdict is record-intensive and does not raise any novel legal issues.)

Medical Assistance

Spousal Impoverishment - Counting One Spouse's IRA as an Asset in Determining the Other Spouse's Eligibility for Medical Assistance

Keip v. Wisconsin Department of Health and Family Services, 2000 WI App 13 (filed 23 Dec. 1999) (ordered published 19 Jan. 2000)

The appellant wife retired in September 1996 and rolled her employee pension into an IRA. The next year she began the medical assistance (MA) application process on her husband's behalf. She learned, however, that the Department of Health and Family Services intended to count her IRA as an asset in determining her husband's eligibility for MA and that the inclusion of the IRA would render him ineligible.

The couple requested a "fair hearing" before the Division of Hearings and Appeals in order to challenge the denial of MA. The hearing examiner concluded that the IRA should not have been included as a resource in determining the husband's MA eligibility. The department's final decision, however, concluded that, under the "spousal impoverishment provisions" of federal law (42 U.S.C. § 1396r-5 (1994)), the IRA was correctly determined to be a countable resource in determining the husband's MA eligibility. The circuit court affirmed.

The court of appeals, in a decision authored by Judge Deininger, reversed. It concluded that the department erred in interpreting the federal "spousal impoverishment" provisions to require the inclusion of a community spouse's IRA as an asset when determining the MA eligibility of her institutionalized spouse.

Taxation

Wisconsin Income Tax - Taxing Menominee Indian Who Lives on and Derives Income from Oneida Indian Reservation

La Rock v. Wisconsin Department of Revenue, 2000 WI App 24 (filed 28 Dec. 1999) (ordered published 19 Jan. 2000)

The petitioner resides in Wisconsin on land that is part of the Oneida Reservation and is employed by the Oneida tribe on the Oneida reservation. She is a member of the Menominee Indian tribe of Wisconsin. She married an Oneida Indian, with whom she had four children. She is now divorced from her husband. Her children are enrolled members of the Oneida tribe; she is not.

On these facts the issue before the court of appeals was whether the petitioner is exempt from Wisconsin's income tax. The circuit court affirmed a decision of the Wisconsin Tax Appeals Commission, which held that Wisconsin may impose an income tax on her because, although an Indian, she is not a member of the Oneida tribe on whose land she resides and from whom she derives income.

On appeal the appellant argued that she is exempt from Wisconsin's income tax based on her status as an Indian living in and deriving income from sources in Indian country. In a decision authored by Judge Hoover, the court of appeals disagreed. It held that McClanahan v. Arizona, 411 U.S. 164 (1973), exempts from taxation only Indians who reside on and derive income from their own tribe's land. No act of Congress, treaty, state statute, or agreement with any tribe impairs Wisconsin's right to impose an income tax on enrolled members of a federally recognized Indian tribe who live and work on a reservation of another tribe.

Torts

Statute of Limitations - Optometrists - "Medical" Care - Affidavits by Attorneys

Webb v. Ocularra Holding Inc., 2000 WI App 25 (filed 28 Dec. 1999) (ordered published 19 Jan. 2000)

The plaintiffs sued an optometrist who allegedly failed to note an abnormal test result while examining the husband, and thus neglected to refer him to a medical specialist. The husband alleged that his headaches and blurred vision were related to a brain tumor that should have been detected earlier. The trial court dismissed the claim because the medical malpractice statute of limitation had expired, thus barring the action.

The court of appeals, in an opinion written by Judge Curley, affirmed. First, the plaintiffs argued that the husband's claim was governed by the statute of limitations in Wis. Stat. section 893.54, not the medical malpractice statute of limitations at section 893.55. The plaintiffs' most compelling argument was that "optometrists" are not listed as "mandatory participants" or even as "optional participants" in Wis. Stat. chapter 655, which governs "medical" malpractice claims. Recent case law, however, undercut this contention. The courts have construed chapter 655 to embrace podiatrists, dentists, and chiropractors who provide "medical care." Hence, optometrists also are swept within chapter 655.

Second, under the medical malpractice statute the action was time barred. Case law established that the statute began to run on the date of plaintiff's one-and-only eye examination by the defendant; in short, the "date of negligence and the date of the injury were the same." ¶20. Since the plaintiffs failed to commence the suit within three years of that date, their only recourse was under the discovery rule, Wis. Stat. section 893.55(1)(b). The record revealed, however, that the plaintiff discussed the optometrist's alleged negligence with the neurosurgeon back in 1995, the day he learned about the tumor. The conversation would not have occurred unless the plaintiff "clearly harbored suspicions about the care rendered." Thus, the discovery statute expired at the end of 1996, before this suit was filed.

Third, the court of appeals also agreed that the plaintiff failed to file adequate affidavits to prove the optometrist's negligence. Specifically, the plaintiff's attorney filed an affidavit reciting the opinion of a medical expert that the optometrist had acted negligently. The attorney's affidavit lacked "personal knowledge" and hence consisted of inadmissible testimony that was stricken for summary judgment purposes.

Trials

Jury Bias - Child Witness Videotapes

State v. Jimmie R.R., 2000 WI App 5 (filed 8 Dec. 1999) (ordered published 19 Jan. 2000)

The court of appeals affirmed Jimmie's convictions for sexual assault and incest involving a 5-year-old girl. Judge Nettesheim applied the juror-bias analysis recently prescribed by the supreme court in State v. Faucher and also took the opportunity to elaborate upon it. The court emphasized that subjective bias turns on the juror's demeanor and thus is a determination that ordinarily is best left to the trial judge. Objective bias requires: "(1) some direct or personal connection between the challenged juror and some important aspect of the case, or (2) a firmly held negative predisposition by the juror regarding the justice system that precludes the juror from fairly and impartially deciding the case."

On the record, the court upheld the trial judge's determination that the juror was not biased under either the objective or the subjective test. The court of appeals also remarked upon the "steady stream" of juror bias cases flowing before it. During voir dire lawyers are permitted to ask jurors leading questions which often yield "contradictory" responses depending upon which side asks the question. On appeal each side dutifully and predictably points to the answers that support its position. Thus, it is all the more "appropriate" for the appellate court to defer to the trial court, which is in a "better position to assess the prospective juror's credibility and honesty."

The second issue concerned the admissibility of a videotaped statement under Wis. Stat. section 908.08, which requires that a child have an "understanding that false statements are punishable and the importance of telling the truth." The court held that both concepts - the truth is important and lies will be punished - are interrelated and that most reasonable children would associate the one with the other. Viewing the videotape for itself, the court of appeals was satisfied that the child had made the appropriate connection.

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