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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 |

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.

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.

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.

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