Vol. 73, No. 6, June 2000

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'99 Significant Court Decisions

The costs for continuing a frivolous action should be determined from the date that the firm served its second request for documents, approximately six weeks after filing the complaint. After that date, the firm made no further investigation into causation. Meanwhile, the defendant continued to accumulate substantial fees in responding to the document request. The court upheld the amount of fees and costs awarded, except that it remanded to the circuit court to subtract those fees and costs that were incurred after the action was filed and prior to the law firm's service of the second document requests.

Justice Bradley, joined by Chief Justice Abrahamson, dissented. They argued that there was nothing to show what happened to transform a meritorious case when filed to a frivolous claim only six weeks thereafter. They concluded that independent review of the facts demonstrated that the suit was not frivolous. In addition, the dissent argued that the defendant implicitly agreed that the action was not frivolous by expending nearly $1 million to defend. It is incongruous for defendant to assert that it is reasonable to spend that amount of money defending the action while at the same time claiming that the action has no merit.⁴ (Editor's Note: Please see "The Effect of Jandrt on Satellite Litigation" in the May Wisconsin Lawyer.

Evidence

In Burnett v. Alt⁵ a treating physician objected to answering questions calling for his expert opinion. He maintained his refusal to answer the questions. The trial court sanctioned the witness and his attorney. The supreme court held that the witness was substantially justified in refusing to answer questions calling for expert opinions when he had not been engaged as an expert, and reversed the order imposing sanctions.

A question asks for expert testimony if it requires scientific, technical, or other specialized knowledge that is not within the range of ordinary training or intelligence. Expert testimony calls upon persons of exceptional experience and qualifications to give their opinion. The question that the treating physician refused to answer, "No matter what the cause, a patient with a history of term pregnancy and a gush of blood, that's abnormal?" called for an expert opinion because whether a history of term pregnancy is normal or abnormal can be answered only in the meaningful and relevant way of a trained physician.

Having a right to refuse to provide testimony is a privilege. To determine whether an expert has a legal privilege to refuse to provide an expert opinion, there must be a statutory, rule, or constitutional provision that expressly or implicitly provides for a testimonial privilege for experts. Although there is no such express provision, section 907.06(1) of the Wisconsin Statutes provides that a judge may appoint any expert witness agreed upon by the parties, and may appoint a witness of the judge's own selection, but an expert witness shall not be appointed by the judge "unless the expert witness consents to act." If a court cannot compel an expert witness to testify, it logically follows that a litigant should not be able to compel an expert to testify. A witness's privilege to refuse to provide expert testimony is inherent in Wis. Stat. section 907.06(1). Any other result would be inconsistent and fly in the face of logic.

Justice Bradley and Chief Justice Abrahamson dissented. The majority's discovery of an evidentiary privilege for experts is previously unheard of in this state. The majority ignores the requirement for express legal authority to create such an evidentiary privilege. Wis. Stat. section 907.06(1) is a slender reed upon which to place such great weight in creating a privilege for expert witnesses. The statute says nothing about a court compelling an expert to testify and absolutely nothing about a party compelling an expert to testify. Furthermore, in practice, the distinction between "transaction" testimony and "expert" testimony is not always clear. These two types of testimony will inevitably spill into the other and in the process create an inseparable mixture. To unmix this mixture will prove to be a difficult and inexact task. Here, the expert testimony was requested of a treating physician. Even the jurisdictions that have adopted an absolute privilege for experts have overwhelming done so in cases where the expert was wholly unrelated to the litigation.

In Milwaukee Teachers' Educ. Ass'n v. Bd. of Sch. Directors⁶ the supreme court held that a public employee was entitled to de novo judicial review in all cases in which a record custodian decides to disclose information from a public employee's personnel file implicating privacy and/or reputational interests.

In a previous case,⁷ the court held that where a person had been the subject of a criminal investigation and where the requested records were in the custody of the district attorney, the district attorney's decision to release the records was subject to de novo review by the circuit court. This de novo review is implicit in the open records law and is available when the public records custodian is not a district attorney. There is an important public interest in protecting persons' privacy and reputations. The key to determining the status of records under the open records law is the nature of the records, not their location. Records containing personal information about a school district employee implicate the same concerns of protection of privacy and reputation whether those records are in the hands of a school district or a district attorney.

In this case, the newspaper sought the names and school assignments of persons discharged due to misdemeanor convictions. Release of this information clearly would impact the privacy and reputations of the plaintiffs. Two of the plaintiffs had only a single misdemeanor conviction stemming from college incidents. Several of the convictions preceded the plaintiffs' termination by more than 10 years. Most of the plaintiffs had achieved satisfactory employment reviews. Disclosure of the names and school assignments would permit plaintiffs to be identified by family members, persons in the community, coworkers, supervisors, and students. Such disclosure could harm plaintiffs' personal relationships, tarnish their reputations, and undermine their authority with students. The court remanded the case to the circuit court to conduct a de novo review of the decision to release the records, performing the balancing test required by law.

Chief Justice Abrahamson and Justice Bradley dissented. This case involves records containing information about a government employee whose salary is paid with tax dollars. Government employees are accountable to the public. The conduct of government employees in their official duties is subject to public scrutiny. Although the privacy and reputational interests of employees is important, there must be a balance between privacy and open government. When a records' custodian makes the balance, the employee is not entitled to judicial review. A district attorney serving as record custodian is distinguishable. Extending the notice and judicial review processes to all custodians contravenes the language, spirit, and purpose of the open records law. Providing such review brushes aside the practical argument that providing judicial review will result in impermissible delays. In this case, more than two years have passed since the records custodian decided to release the public records. No final decision will be made until after the circuit court conducts its balancing test on remand.

Justice Prosser also dissented without opinion.

In State v. Sprosty⁸ the supreme court considered the issue of whether or not supervised release of the defendant, who had been committed under the sexual predator law, Wis. Stat. Chapter 980, could be avoided because of inadequate resources in the community. Although Sprosty needed to continue to participate in sex offender and substance abuse treatment programs, he could benefit from such treatment on an outpatient basis while living in the community under close supervision. The circuit court initially ordered supervised release but then denied supervised release because of inadequate resources.

Daniel W. Hildebrand is a member of DeWitt, Ross & Stevens S.C., Madison. He is a former president of the Dane County Bar Association and of the State Bar of Wisconsin.

Although the circuit court may consider the availability of facilities to house or to treat a sexual predator in its discretion under Wis. Stat. section 980.08(4), such consideration must be in keeping with the purpose of providing the least restrictive means to accomplish the treatment of the person while also protecting the public. This does not mean that the circuit court can or should consider whether the available facilities are willing to undertake the person's supervision before ordering supervised release. The petition must be granted unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if not confined in a secure mental health unit or facility. Under Wis. Stat. section 980.08(5), the circuit court has the authority to order a county department or the Department of Health and Family Services to create whatever programs or facilities are necessary to accommodate an order for supervised release. The language of the statute is clear and unambiguous, using the word "shall," which is equivalent to mandatory. Wisconsin sexual predator law survived constitutional challenge, in part, because the nature and duration of Chapter 980 commitments are to be reasonably related to the purposes of those commitments. The case was remanded to the circuit court to designate and order the development of a plan that provides for Sprosty's supervised release and treatment in the community.

Endnotes

¹ State Farm Mut. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 592 N.W.2d 201 (1999).

² See also, General Cas. Co. v. Ford Motor Co., 225 Wis. 2d 353, 592 N.W.2d 198 (1999).

³ Jandrt v. Jerome Foods Inc., 227 Wis. 2d 531, 597 N.W.2d 744 (1999).

⁴ See also Jandrt v. Jerome Foods Inc., 230 Wis. 2d 246, 248, 604 N.W.2d 574 (1999) (Chief Justice Abrahamson and Justice Bradley dissenting from denial of motion for reconsideration).

⁵ Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999).

⁶ Milwaukee Teachers Educ. Ass'n v. Bd. of Sch. Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999).

⁷ Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996).

⁸ State v. Sprosty, 227 Wis. 2d 316, 592 N.W.2d 692 (1999).