Supreme Court Digest

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

Editor's Note: Each case summarized in the Supreme Court Digest includes its new public domain citation.

| Attorney General | Civil Procedure |  Criminal Procedure | Employment Discrimination | Dealerships | Insurance |

Attorney General

Powers - Challenging the Constitutionality of Statutes

State v. City of Oak Creek, 2000 WI 9 (filed 10 Feb. 2000)

Some years ago the City of Oak Creek constructed a concrete bed in Crawfish Creek. The state brought suit to have the concrete removed and the creek restored to its preexisting condition. In 1994 the court of appeals held that the creek was a navigable waterway, that the "channelization" violated section 30.12 of the Wisconsin Statutes, that another statute "enacted by the Legislature purporting to exempt Crawfish Creek from the requirements of section 30 was unconstitutional, and that the creek had to be restored to its prechannelization condition." Following the court's decision, the Legislature "reenacted the exemption."

The attorney general then brought this action seeking a declaration that the new exemption was unconstitutional because it violated, among other things, the public trust doctrine. The attorney general also sought a determination that the rechannelization was a nuisance. The circuit court ruled that the new exemption (section 30.056) was unconstitutional and granted the relief sought. The court of appeals reversed (Judge Schudson dissenting). Writing for the court, Judge Fine agreed that the attorney general lacked the authority to attack the statute's constitutionality based on the "dispositive" opinion in Public Intervenor v. DNR, 115 Wis. 2d 28, 339 N.W.2d 324 (1983).

The supreme court, in a decision written by Justice Crooks, affirmed the court of appeals. A party's standing turns on two elements: 1) whether the plaintiff has suffered a threatened or actual injury, and 2) whether the interest asserted is recognized by law. Here the second element was dispositive because no statute expressly conferred the attorney general with authority to attack another statute's constitutionality. Case law had long restricted the attorney general's powers to those prescribed by statutory law as provided in Wis. Const. art. VI, sec. 3. This construction also accorded with the surviving records of the constitutional conventions (1846 and 1848), which entrusted the Legislature with the task of defining the attorney general's powers, and the practice of the early state Legislature.

The court also rejected the attorney general's contention that such power arose from other doctrines such as the "great public concern" doctrine, the "state as polity" doctrine, and the "core function" doctrine.

The great public concern doctrine is an exception to the general rule that state agencies or public officers cannot question the constitutionality of a statute unless it is their official duty to do so, or they will be personally affected if they fail to do so and the statute is held invalid. This exception does not apply to suits between two creatures of the state. Because in this case the attorney general and the City of Oak Creek are both creatures of the state, the great public concern exception does not apply.

The court also rejected application of the "state as polity" doctrine and the "core function" doctrine. As to the latter, the attorney general argued that he is able to bring suit in this case because doing so is one of his core functions as attorney general. The court responded that there is no core function derived from the constitution that is superior to the attorney general's statutorily provided powers because the constitution provides that the attorney general's "core functions" are to be defined by the statutes. The attorney general's constitutional powers are equivalent to his statutory powers - they are one and the same.

Chief Justice Abrahamson, joined by Justices Bablitch and Bradley, dissented in an opinion that challenges the majority on six different points. The dissent laments that "Wisconsin's jurisprudence about the power of the Attorney General is unduly restrictive and intellectually confusing and inconsistent."

Civil Procedure

Discovery - Depositions - Public Access

State ex rel. Mitsubishi Heavy Industries America Inc. v. Circuit Court for Milwaukee County, 2000 WI 16 (filed 23 Feb. 2000)

This case arose out of litigation surrounding the crane collapse at the Miller Park construction site in Milwaukee County. The Milwaukee Journal Sentinel intervened in the underlying civil litigation and sought access to discovery materials. The circuit court ordered the disclosure upon request to the newspaper "of any deposition, transcript, deposition videotape, or related exhibits."

In a per curiam decision, the Wisconsin Supreme Court granted the defendant's petition for a supervisory writ prohibiting the disclosure. The court held that the newspaper "should not have been permitted to intervene as a matter of right to obtain access to unfiled, pretrial discovery materials." Neither the press nor the general public have a right to "examine discovery materials as they are being generated in the course of pretrial discovery in a civil action." Documents on file with the court are, however, considered public records and are subject to disclosure. Under the rules of civil procedure and unless otherwise ordered, the original copies of all depositions and other discovery materials are not filed with the court; rather, the parties retain the material. For these reasons, "depositions generated in the pretrial discovery proceedings in the underlying action are not judicial records to which a common law presumption of access applies because they have not yet been filed in court, nor have they been used as evidentiary material in determining any of the civil litigants' substantive rights." The court also held that the media has no First Amendment rights to the discovery materials until they are filed with the court.

Chief Justice Abrahamson concurred and wrote separately to emphasize the narrowness of the court's ruling. Assuming the circuit court orders that the depositions be filed, the media and the general public have the right to examine them subject to the judge's discretion to restrict access based on "good cause."

Criminal Procedure

Sentence Credit - Release on Bond - Home Detention with Electronic Monitoring

State v. Magnuson, 2000 WI 19 (filed 29 Feb. 2000)

Prior to trial the defendant was released on a signature bond. As part of he bond, the court ordered him to reside with either his pastor or his cosigners on the bond. He chose to reside with the pastor.

The court imposed additional conditions of release on bond. The defendant was subject to a nightly curfew that confined him to the pastor's residence. [This home detention as a condition of bond was not pursuant to an order from the sheriff or the Wisconsin Department of Corrections under Wis. Stat. section 302.425.] The defendant was formally supervised by a bail-monitoring program and was required to wear an electronic monitoring bracelet to ensure his presence at the pastor's home during curfew hours. He also was obligated to contact bail-monitoring authorities every morning and to submit to urinalysis as directed. There were various other conditions of bond as well.

The issue before the supreme court was whether the defendant was entitled to sentence credit under section 973.155 for the time he was released on bond to home detention with electronic monitoring. In a unanimous opinion authored by Justice Bradley, the supreme court concluded that he was not.

The court held that the test for determining whether the defendant was "in custody" for sentence credit purposes was whether he was subject to an escape charge for leaving that status. Applying this test to the case before it, the supreme court concluded that the defendant was not in danger of being charged with escape under any applicable statutes. Although he could suffer negative legal consequences (for example, a charge of bail jumping) for leaving home detention or for violating other release conditions, the court did not believe that these consequences transformed the defendant's situation into "custody" for purposes of granting sentence credit.

Guilty Pleas - Factual Basis - Post-sentencing Motion to Withdraw Plea

State v. Thomas, 2000 WI 13 (filed 18 Feb. 2000)

This case concerns the factual basis for a guilty plea and the defendant's motion after sentencing to withdraw that plea claiming that the circuit judge failed to establish a factual basis for it. In a unanimous opinion authored by Justice Crooks, the court began its analysis by noting that a defendant who moves to withdraw a guilty plea after sentencing carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw the plea to correct a "manifest injustice." The "manifest injustice" test requires a defendant to show a serious flaw in the fundamental integrity of the plea. One of the circuit court's duties at the plea hearing is to determine that the conduct that the defendant admits constitutes the offense charged in the pleadings or an offense included therein to which the defendant has pleaded guilty. "If a circuit court fails to establish a factual basis that the defendant admits constitutes the offense pleaded to, manifest injustice has occurred."

Rule 11(f) of the Federal Rules of Criminal Procedure provides that a court should not enter judgment upon a plea of guilty "without making such inquiry as shall satisfy it that there is a factual basis for the plea." This rule has been made applicable to the states and the Wisconsin Supreme Court has held that to comply with the rule, a judge must "personally determine that the conduct which the defendant admits constitutes the offense charged." See Ernst v. State, 43 Wis. 2d 661, 170 N.W.2d 713 (1969). Both the federal rule and Wisconsin's adaptation of it speak in terms of a judge's determination that a factual basis exists. Neither the rule nor the case law interpreting the rule requires a defendant to personally articulate the specific facts that constitute the elements of the crime charged. All that is required is for the factual basis to be developed on the record. Several sources can supply the facts.

Relevant case law does not require a judge to make a factual basis determination in one particular manner. While a judge must ensure that a defendant realizes that his or her conduct does meet the elements of the crime charged, he or she may accomplish this goal through means other than requiring a defendant to personally articulate agreement with the factual basis presented. A factual basis also may be established through witnesses' testimony, or a prosecutor reading police reports or statements of evidence. Finally, a factual basis is established when counsel stipulate on the record to facts in the criminal complaint.

Wis. Stat. section 971.08(b), which is Wisconsin's codification of Federal Rule 11(f), provides that a court must "make such inquiry as satisfies it that the defendant in fact committed the crime charged." The phrase "such inquiry" indicates that a judge may establish the factual basis as he or she sees fit, as long as the judge guarantees that the defendant is aware of the elements of the crime, and the defendant's conduct meets those elements.

On a motion to withdraw the guilty plea, a court may look at the totality of the circumstances to determine whether a defendant has accepted the factual basis presented underlying the guilty plea. "The totality of the circumstances includes the plea hearing record, the sentencing hearing record, as well as the defense counsel's statements concerning the factual basis presented by the state, among other portions of the record."

Sentencing Credit - "Read-in Offenses"

State v. Floyd, 2000 WI 14 (filed 22 Feb. 2000)

The defendant originally was charged and jailed for a host of offenses referred to collectively as the "reckless endangerment case." He posted bail and was released. While awaiting trial, the defendant committed another offense, "the armed robbery case." Unable to make bail, the defendant remained in custody. Eventually he pleaded guilty to the reckless endangerment case and the armed robbery case was read in for sentencing. At the sentencing hearing, the attorneys for each side and the court agreed that the defendant was entitled to 61 days credit for time spent in custody on the reckless endangerment case. He was not given credit for time spent in custody solely on the armed robbery case (which had been read in). According to the record, the defendant's signature bond on the reckless endangerment case was not revoked until a later time. Once it was revoked, the defendant was entitled to the time spent in jail on (technically) both cases. The trial court denied the defendant's post-conviction motions and the court of appeals certified the case to the supreme court.

The supreme court, in a decision written by Justice Bradley, reversed the circuit court. The Legislature created section 973.155 of the Wisconsin Statutes with "the intent to bring the law of Wisconsin into conformity with the broad federal statute, which provided for sentence credit for any pre-sentence confinement period, whether arising from a financial inability to post bail, unwillingness to grant release on bail, or for purpose of examination." Read-in offenses create the risk of a lengthier sentence because they carry far more weight than "unproven or acquitted offenses." The court "limited" section 973.155 "to charges that are dismissed and read in at sentencing"; it does not apply to "a myriad of dismissed and other charges that also may be considered or mentioned at sentencing."

Employment Discrimination

Title VII of Civil Rights Act of 1964 - Americans with Disabilities Act - Personal Liability of Employer's Agents

Alberte v. ANEW Health Care Services Inc., 2000 WI 7 (filed 8 Feb. 2000)

The plaintiff was employed by ANEW Health Care Services Inc., a corporation that provides skilled nursing services. Her supervisor also was the president and 47.5 percent owner of the corporation. The supervisor discharged the plaintiff from her employment at ANEW.

The plaintiff sued ANEW and the supervisor, alleging that they violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) by failing to reasonably accommodate her disability (a back condition), retaliating against her, and terminating her employment. The suit specifically alleged that the supervisor was serving as ANEW's agent when these actions took place and sought to hold the supervisor personally liable for her allegedly discriminatory actions.

The defense moved to dismiss the plaintiff's action against the supervisor as an individual on the ground that Title VII and the ADA do not subject her to personal liability. The circuit court granted the motion and dismissed the supervisor from the action.

In a published decision the court of appeals reversed the circuit court. It held that the statutes referred to above subject agents to individual liability. See Alberte v. ANEW Health Care Services Inc., 223 Wis. 2d 1, 588 N.W.2d 298 (Ct. App. 1998).

In a unanimous decision authored by Justice Wilcox, the supreme court reversed the court of appeals. It concluded that Congress did not intend to hold agents personally liable under Title VII or the ADA. In so holding it joined the Seventh Circuit and the majority of other federal circuit courts. Alternative interpretations defeat legislative intent, produce unreasonable outcomes, and are unsupported by the history of the statute.

Dealerships

Wisconsin Fair Dealership Law - "Situated in this State"

The Baldwein Co. v. Tri-Clover Inc., 2000 WI 20 (filed 29 Feb. 2000)

Tri-Clover Inc. terminated the company's 56-year-old relationship with the Baldwein Company, an Illinois corporation that sells sanitary pumps, valves, and the like. Baldwein was Tri-Clover's distributor. Tri-Clover is a Delaware corporation with its headquarters, distribution center, and principal place of business in Kenosha. The long-standing oral agreement between the two companies was reduced to writing in 1985. Baldwein derived about 90 percent of its revenue from selling Tri-Clover's products, but most of its business was in Illinois. Not more than 4 percent of its sales were made in Wisconsin. Baldwein sued Tri-Clover under Wisconsin's Fair Dealership Law (WFDL) in federal court.

This case was before the Wisconsin Supreme Court on certification from the Seventh Circuit. The "essential question" raised in the case concerned "when is a dealership 'situated in this state' under Wis. Stat. sec. 135.02(2)." Writing for the court, Justice Sykes held that courts must consider "the dealership's total involvement and investment in promoting and selling the grantor's products or services in the State of Wisconsin." The test is based on the statute's language, history, and purpose, and is "similar" to that announced in Ziegler Co. v. Rexnord, 139 Wis. 2d 593 (1987). The Wisconsin Fair Dealership Law's "situated in this state" element "limits the application of the WFDL to commercial relationships that exist in some substantial way in this state (and otherwise satisfy the definition in the statute)."

The court declined to create a "minimum percent-of-sales" test for determining dealership status. The multiple factor "community of interest" test invites consideration of the following factors, such as: 1) the percent of total sales, revenue, or profits in Wisconsin; 2) the duration of the relationship; 3) the extent and nature of the dealer's Wisconsin obligations; and 4) the "territorial" stake in the state. The court listed about 10 factors that should be considered (see ¶ 30). Most clearly, however, "a Wisconsin choice-of-law provision will not operate to trigger the application of the WFDL." The court remanded the case to the federal court for application of its decision.

Chief Justice Abrahamson concurred, arguing there was no need for remand because the record supported a finding that Baldwein was a dealer situated in the state.

Insurance

UM Coverage - Unidentified Vehicles - Flying Debris

Theis v. Midwest Security Ins. Co., 2000 WI 15 (filed 22 Feb. 2000)

The plaintiff was injured while driving his truck when an object flew off an unidentified semi-trailer that was in front of him and crashed through the plaintiff's windshield. The plaintiff sought payment from his uninsured motorist (UM) coverage, but his insurer denied the claim. In a declaratory action, the circuit court ruled that the UM coverage did apply. The court of appeals certified the issues to the supreme court.

The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed. First, the court held that Wis. Stat. section 632.32(4) "requires that the uninsured motorist clauses of an insurance policy provide coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an unidentified motor vehicle." The "detached piece" might come from the unidentified motor vehicle itself, or it might be "highway debris" propelled by the unidentified vehicle. The court's holding coincided with an insured's reasonable expectations, fulfilled the statute's purpose of providing the same coverage regardless of whether the negligent driver was insured, and did not open the door to fraudulent claims.

The second issue concerned whether the plaintiff had demonstrated negligence by the unidentified semi-trailer. The court held that this action sought only a declaration of coverage regarding this type of accident and remanded the case to proceed to arbitration.

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.

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