Vol. 73, No. 7, July
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.
| Appellate Procedure | Criminal
Procedure |
Family Law | Insurance | Lemon
Law | Prioner Litigation |
Appellate Procedure
Intervention - Timeliness of Motion to Intervene
City of Madison v. Wisconsin
Employment Relations Commission, 2000 WI 39 (filed 12 May
2000)
The Madison Police and Fire Commission sought to intervene in an
appeal before the court of appeals in a lawsuit between the city and the
Wisconsin Employment Relations Commission. The Police and Fire
Commission was not involved as a party in this litigation. The issue
before the supreme court was whether a nonparty to a circuit court
action may intervene in an appeal brought by another party, even after
the time for filing a notice of appeal has passed.
In a unanimous decision authored by Justice Crooks, the supreme court
concluded that under Wis. Stat. section
(Rule) 803.09, a nonparty to a circuit court action may intervene in
an appeal brought by another party, even after the time for filing
notice of appeal has passed. While the Police and Fire Commission failed
to intervene in this case within the statutory time period to appeal, an
intervenor such as the commission does not have to file a motion to
intervene within a statutorily set time period.
Timeliness - Jurisdiction - Facsimile Filings - Notice of
Appeal
State v. Sorenson, 2000 WI
43 (filed 26 May 2000)
Sorenson was committed by the circuit court as a sexually violent
person under chapter
980 of the Wisconsin Statutes. On the last calendar day permitted
for filing a notice to appeal, Sorenson transmitted the notice via a
facsimile machine to the office of the clerk of the circuit court. He
also mailed an original copy of the notice to the clerk's office, which
received the mailed copy one day after the filing deadline. The court of
appeals held that it lacked jurisdiction to hear Sorenson's appeal based
on the untimely filing.
The supreme court, in an opinion written by Justice Prosser,
reversed. The supreme court addressed one central issue: Does section
801.16(2), which provides that "papers that do not require a filing
fee" may be filed by facsimile transmission, permit indigent persons to
file a notice of appeal by facsimile? The court held that "a notice of
appeal may be filed by facsimile transmission because a notice of appeal
is not a paper that requires a filing fee to confer jurisdiction." Thus,
the court of appeals obtained jurisdiction when the circuit court clerk
received Sorenson's "facsimiled" notice of appeal. Payment of the filing
fee - which did not accompany the facsimiled notice - is not a
jurisdictional requirement (¶ 18). Nor was the holding limited to
indigent filers, like Sorenson. Rather, the court held that "all
appellants, irrespective of financial status, should be permitted to
file notices of appeal by facsimile transmission" (¶ 28). The court
overruled inconsistent precedent.
Criminal Procedure
Terry Stops - Frisks for Weapons - Opening Containers
State v. McGill, 2000 WI 38
(filed 12 May 2000)
This case concerns the admissibility of evidence seized during a
stop-and-frisk encounter with the defendant. After stopping the
defendant for a traffic violation, the officer conducted a frisk for
weapons, during which a hard object that the officer thought might be a
knife was felt. Upon removing the object, the officer discovered that it
was not a knife but rather an object wrapped in aluminum foil. The
package was opened and cocaine was found therein.
There was no issue in the case about the validity of the initial stop
of the defendant. He had committed a traffic violation. With regard to
the frisk of his person, the supreme court, in a majority decision
authored by Justice Sykes, concluded that the officer had a reasonable
suspicion that the defendant was armed. In making this assessment, a
court may look to any fact in the record, as long as it was known to the
officer at the time he or she conducted the frisk. The court is not
restricted in its reasonableness analysis to the factors the officer
testifies to having subjectively weighed in his or her ultimate decision
to conduct the frisk.
In this case the officer found himself alone at night in a dark
driveway with a suspect who was demonstrating unusual behavior. The
suspect had failed to promptly stop his vehicle and he had attempted to
walk away after the stop to avoid the encounter with the officer. He
demonstrated nervousness beyond that exhibited by most traffic suspects.
Further, the suspect smelled of both drugs and alcohol. On these facts
the supreme court concluded that a reasonably prudent officer would be
warranted in the belief that the suspect may be armed and presently
dangerous. Accordingly, the protective frisk was reasonable.
The court next considered whether the officer exceeded the limited
scope of the Terry frisk when he removed the foil-wrapped package of
cocaine from the suspect's pocket and opened it. Protective frisks must
be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments that may be used to
assault the officer. In this case, the size, shape, and feel of the hard
object in the defendant's pocket were consistent with it being a pocket
knife. Although the object turned out to be packaged cocaine, the
officer testified that it was so compacted that it felt like a hard,
solid object. The fact that, in this case, the officer handcuffed the
defendant before removing the object did not render the frisk
illegal.
Finally, the court considered the validity of the officer's opening
the aluminum foil package after it was apparent that it did not contain
a knife. The court concluded that an officer may inspect an object
seized in a Terry frisk when it is immediately apparent that the object
is or contains contraband. Here, the court thought the evidence
sufficient to support a finding that the officer had probable cause to
believe that the package contained evidence of a crime - in this case,
drugs. The officer testified that the object was a plastic baggie with
aluminum foil wrap and that he knew illegal drugs were packaged in this
way. Further, he smelled intoxicants and the odor of marijuana on the
defendant. The defendant kept reaching for the pocket with the package
in it during the course of the frisk (before he was handcuffed), and he
misled the officer about the contents of the package. Under these
circumstances, said the court, there was probable cause to open and
inspect the foil-wrapped package that had been lawfully seized from the
defendant's pocket.
Chief Justice Abrahamson filed a dissenting opinion.
Family Law
Termination of Parental Rights - Best Interests of the Child
Analysis - Wis. Stat. Section 48.426 Factors
State v. Margaret H., 2000
WI 42 (filed16 May 2000)
This case concerns the termination of parental rights and the factors
a court must consider in making a TPR decision.
The proper legal standard governing a proceeding to terminate
parental rights is the best interests of the child. See Wis. Stat. §
48.426(2). The factors that give contour to the standard are
codified in section
48.426(3) and serve to guide courts in gauging whether termination
is the appropriate disposition. While it is within the province of the
circuit court to determine where the best interests of the child lie,
the record should reflect adequate consideration of and weight to each
of the statutory factors.
Of particular concern in this case is the statutory factor
articulated at section
48.426(3)(c): "Whether the child has substantial relationships with
the parent or other family members, and whether it would be harmful to
the child to sever these relationships." Under this subsection, the
circuit court must evaluate the existence of "substantial relationships"
between a child and the child's family, and then gauge whether the child
will suffer harm from a severance of those relationships. [As a matter
of law, the termination of parental rights results in a legal severance
of the relationship between a child and the child's family.]
In a unanimous decision authored by Justice Bradley, the supreme
court interpreted the statute quoted above to unambiguously require that
a circuit court evaluate the effect of a legal severance on the broader
relationships existing between a child and the child's birth family.
These relationships encompass emotional and psychological bonds fostered
between the child and the family.
Insurance
UM Coverage - Statutory Exclusion
Blazekovic v. City of
Milwaukee, 2000 WI 41 (filed 16 May 2000)
The plaintiff, a firefighter, was injured when an uninsured driver
struck her fire truck. The plaintiff carried uninsured motorist (UM)
coverage on two vehicles at the time of the accident. Both policies
contained a "particular breed" of "drive other car" exclusion that
applied where the insured (the plaintiff) was using a "non-owned
emergency type vehicle" in connection with her employment. The trial
court ruled that the exclusion was invalid. The court of appeals
affirmed.
The supreme court, in an opinion written by Justice Bradley, also
affirmed in an opinion that closely canvasses Wisconsin law on the
validity of such exclusions. The statutes demand that UM coverage be
"part and parcel of every automobile policy to guarantee that the victim
of an uninsured driver's negligence is compensated to the same extent as
if the driver were insured." Section
632.32(6) explicitly permits "one type of 'drive other car
exclusion.'" The exclusion at issue in this case failed to conform to
the one type authorized by the legislature; hence, this "particular
breed" of exclusion was invalid.
Lemon Law
Defects Known at Time of Vehicle Delivery - Applicability of Lemon
Law
Dieter v. Chrysler
Corporation, 2000 WI 45 (filed 26 May 2000)
The plaintiffs purchased a new Chrysler truck and ordered some
accessories installed before delivery. The dealer damaged the truck in
the process of installing the accessories, but assured the buyers that
the damage - scratches in the truck's finish - would be repaired. The
plaintiffs accepted delivery and, when repair attempts were
unsuccessful, sought relief from Chrysler under the lemon law.
The court of appeals held that because the lemon law was meant to
protect consumers from hidden defects discovered after delivery of a new
vehicle, the plaintiffs could not recover. They knew about the paint
scratches before delivery of the truck.
In a unanimous decision authored by Justice Sykes, the supreme court
reversed the court of appeals. The first issue before the court was
whether Chrysler's express warranty covered the scratches to the truck
that resulted from the dealer's installation of the Chrysler-approved
accessories. Resolving this issue was necessary because the lemon law
comes into play only when there is manufacturer warranty coverage. In
this case the court concluded that there was coverage under the terms of
Chrysler's warranty.
The court then proceeded to address the issue of statutory
construction before it: whether it is necessary that the consumer be
unaware of a defect before accepting delivery of the vehicle in order
for the lemon law to apply. It concluded that nothing in the plain
language of the statute requires this interpretation, and further, that
the legislature has explicitly provided that the protections of the
lemon law cannot be waived. The lemon law contains no "hidden defect" or
"lack of knowledge" requirement. Accordingly, the plaintiffs' awareness
of the scratches to their truck at the time they took delivery did not
make the lemon law inapplicable.
Prioner Litigation
Disciplinary Proceedings - Failure of Prison Officials to Follow
Administrative Rules
State ex rel. Anderson-El v.
Cooke, 2000 WI 40 (filed 16 May 2000)
When a prison inmate is accused of a "major violation" requiring a
formal hearing, the accused must receive two written notices according
to governing provisions of Wisconsin's Administrative Code. The first
notice is attached to the conduct report and informs the inmate of the
charges so that he or she is able to marshal the facts and prepare a
defense. The second notice, also required by the Administrative Code,
requires a hearing officer to notify the accused of the time of the
hearing. In this case there was no dispute that the inmate received the
first written notice of his hearing. There was also no dispute that the
Department of Corrections did not provide him with the second written
notice.
The issue before the supreme court was whether the failure of the
department to provide the inmate with the second written notice
invalidated the disciplinary proceedings that were conducted against
him. In a unanimous decision authored by Justice Crooks, the supreme
court concluded that when the department did not provide the second
written notice of the disciplinary hearing, in violation of its own
regulations, the proceedings against the inmate were invalidated for
failure to provide a fundamental procedural right. The court based its
conclusion on the firmly established rule that governmental entities
must be bound by the regulations that they themselves have promulgated.
The court further concluded that the inmate did not waive his right to
object to the lack of notice, even though he did not object to this
procedural defect at the administrative level.
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
