Vol. 73, No. 6, June 2000

Supreme Court Digest

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

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

| Criminal Procedure | Municipal Law | Torts |

Criminal Procedure

Trial by Jury - Six-person Juries

State v. Wingo, 2000 WI 31 (filed 14 April 2000)

The defendant was convicted of soliciting a prostitute. The trial court, the prosecutor, and the defense mistakenly believed that section 756.096(3)(am) (1995-96) of the Wisconsin Statutes mandated the use of a six-person jury. The record revealed, however, that the statute was not in effect when this prosecution was commenced. At no time did the defendant agree to be tried by a jury of less than 12 persons, as required by section 972.02(2).

The supreme court, in an opinion written by Chief Justice Abrahamson, held that the six-person jury trial was error and necessitated a new trial. In State v. Hansford, 219 Wis. 2d 226 (1998), the supreme court declared the six-person jury statute to be unconstitutional, but this case was further complicated by the erroneous use of the unconstitutional statute to begin with. The law that actually applied to this prosecution required the use of 12-person juries in all criminal prosecutions, felony and misdemeanor. At no point on the record did the defendant voluntarily, knowingly, and intelligently waive the right to a 12-person jury.

Conditions of Probation - Requirement That Defendant Pay Unpaid Fine and Forfeiture From Prior Convictions

State v. Oakley, 2000 WI 37 (filed 9 May 2000)

The defendant was found guilty of intimidating a witness. The circuit court withheld sentence and imposed a three-year term of probation. A condition of that probation was that he pay off an old unpaid fine and an unpaid forfeiture from prior unrelated convictions. He brought a post-conviction motion to strike this condition of his probation. The circuit court denied the motion and the court of appeals affirmed.

In a majority decision authored by Chief Justice Abrahamson, the supreme court reversed the court of appeals. Focusing on the prior unpaid criminal fine, the majority noted that Wis. Stat. section 973.07 expressly limits incarceration as a means of collecting a fine to a period in the county jail not to exceed six months. Therefore, the circuit court erred as a matter of law in making the payment of an old unpaid fine a condition of probation for the new conviction, because a violation of that condition would expose the defendant to incarceration in the county jail for more than six months. As a matter of fact, upon revocation of probation for the intimidation charge, the defendant would face incarceration for up to 10 years in prison.

The supreme court noted that the circuit court has means available to it to enforce the old outstanding fine against the defendant. The court could issue a judgment for the unpaid amount and direct the clerk to file and docket a transcript of the judgment under Wis. Stat. section 973.05(4)(a). The court also could issue an order assigning the defendant's wages or other income under section 973.05(4)(b)(c). Further, pursuant to section 973.07, the defendant could be committed to the county jail until the fine is paid, for a period fixed by the court not to exceed six months.

In footnote the court noted that a condition of probation in this case was payment of an old unpaid forfeiture for a prior disorderly conduct conviction. The court indicated that its reasoning, as described above with regard to the unpaid criminal fine, also would apply to the forfeiture imposed for the civil disorderly conduct offense. Wis. Stat. section 66.12 provides a method for collecting a forfeiture in a civil action. The court read that statute to mean that a forfeiture cannot be enforced as a condition of probation under section 973.09(1)(a).

Justice Wilcox filed a dissenting opinion that was joined by Justice Prosser. Justice Prosser submitted his own dissent.

Municipal Law

Police Officers - Disciplinary Actions - Newly Promoted Officer Serving Term of Probation - Demotion for Disciplinary Reasons - Right to a "Just Cause" Hearing

Antisdel v. Oak Creek Police and Fire Commission, 2000 WI 35 (filed 2 May 2000)

The appellant is a police officer employed by the city of Oak Creek. He was promoted to the rank of sergeant and notified at the time of promotion that, upon completion of a one-year probationary period in the promoted rank, he would receive a permanent appointment as a sergeant. Prior to completion of the probation period, the police chief notified the appellant that he had not passed his probation because of unprofessional conduct that had occurred prior to the promotion. The chief advised him that he was being returned to his former position as a police officer.

The officer requested a "just cause" hearing before the local police and fire commission. The commission denied his request, apparently concluding that probationary employees are not entitled to the "just cause" procedure established under Wis. Stat. section 62.13(5)(em). With this decision the circuit court agreed; however, the court of appeals reversed.

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals. The court concluded that the appellant was reduced in rank based on a disciplinary charge made by the police chief and that he was therefore entitled to a "just cause" hearing before the police and fire commission.

The court specifically indicated that it did not need to and therefore did not decide whether it would reach the same decision if the probationary sergeant had been reduced in rank to a police officer because he failed to meet the level of performance demanded by his superiors or because of some other nondisciplinary reason.

Torts

Medical Malpractice - Noneconomic Damages Caps

Guzman v. St. Francis Hospital, 2000 WI 34 (filed 2 May 2000)

This appeal concerned the constitutionality of the $350,000 non-economic damages caps in medical malpractice cases, as provided by section 655.017 and section 893.55(4) of the Wisconsin Statutes. The court's per curiam order indicated that it was equally divided on the issue (Justice Prosser did not participate). The court vacated the order granting bypass and remanded the matter for decision to the court of appeals.

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