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 |

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.

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.

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.

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.

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