Supreme Court Digest

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

| Civil Procedure | Criminal Law | Employment Law | Insurance |

Civil Procedure

Civil Procedure "Sham Affidavits" - Summary Judgment

Yahnke v. Carson, 2000 WI 74 (filed 30 June 2000)

During the discovery phase of this medical malpractice action, the plaintiffs' experts testified at their deposition that, in effect, they did not believe that the defendant doctor was negligent. The defense filed motions for summary judgment arguing that the plaintiffs' experts failed to establish negligence. Following a change of counsel, plaintiffs' very same experts submitted affidavits that now averred the defendant's professional negligence and sought to explain away their inconsistent testimony. The circuit court struck the affidavits under the federal "sham affidavit" rule and granted summary judgment dismissing the complaint. The court of appeals reversed, concluding that the affidavits raised an issue of fact and deferring to the Wisconsin Supreme Court on the wisdom of adopting the federal sham affidavit rule.

The supreme court, in a decision written by Justice Sykes, reversed the court of appeals and held that Wisconsin courts shall apply the "sham affidavit" rule followed by most federal circuits. The court explained that "the ability to create trial issues by submitting affidavits in direct contradiction of deposition testimony reduces the effectiveness of summary judgment as a tool for separating the genuine factual disputes from the ones that are not, and undermines summary judgment's purpose of avoiding unnecessary trials" (¶ 11).

The court held "that for purposes of evaluating motions for summary judgment pursuant to Wis. Stat. section 802.08, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained. To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based on newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection, or other legitimate lack of clarity that the affidavit justifiably attempts to explain" (¶ 21). On the record before it, the court concluded that summary judgment for the defense was appropriate.

Justice Bablitch, joined by Chief Justice Abrahamson and Justice Bradley, dissented. In their view the sham affidavit rule is unnecessary because it undermines the trial system and abuses are adequately addressed by the "frivolous claims" doctrine.

Dual Actions – Comity – Tribal Courts

Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 2000 WI 79 (filed 6 July 2000)

A contract dispute arose between a group of Chippewa Indians (the Band) and Jerry Teague, formerly the general manager of the Band's casino. The dispute mushroomed into "overlapping suits in circuit court and tribal court." Teague filed a complaint in the circuit court that sought arbitration of the contract claim. More than a year later the Band began an action in its own tribal court under tribal law. The tribal court invalidated the contract and the Band moved the circuit court to accord the tribal judgment full faith and credit under Wis. Stat. section 806.245. The circuit court denied the motion based on Syver v. Hahn, 6 Wis. 2d 154 (1959), which accorded primacy to the court where the matter was first filed (the "prior action pending" rule). The court of appeals reversed.

The supreme court, in a decision written by Justice Sykes, reversed the court of appeals. The court held that Syver's prior action pending rule "does not apply to these circumstances because an Indian tribal court is a court of an independent sovereign. However, under the circumstances of this case, principles of comity required that the state and tribal courts confer for purposes of allocating jurisdiction between them in order to avoid both the race to judgment and inconsistent results that occurred here" (¶ 2). The court thus rejected the Hobson's choice between a "race to the courthouse" or a "race to judgment," a situation unanticipated by the legislature in section 806.245 (¶ 33). A conference between the tribal court and the circuit court "ensures that the issue of jurisdiction allocation, involving as it does an evaluation of principles of comity and tribal exhaustion, will be decided by the courts in an atmosphere of mutual respect and cooperation rather than by the litigants in the height of adversarial battle" (¶ 38).

Criminal Law

Child Enticement – Unanimity – Multiplicity – Other Act Evidence

State v. Derango, 2000 WI 89 (filed 11 July 2000)

The defendant was convicted of child enticement for having offered a 15-year-old girl money to perform a "strip tease" and other sex acts on videotape. The supreme court, in a decision written by Justice Sykes, affirmed the conviction and rejected the defendant's claims of error. (Justice Prosser did not participate.)

First, the defendant argued that he was denied his right to a unanimous verdict because the jury was instructed regarding "multiple modes" of commission with no mandate that it agree on one. The court held that unanimity was not required because the "alternate mental states for the crime of child enticement are clearly conceptually and morally equivalent: they all relate to causing physical, sexual, or mental harm to a child" (¶ 24).

Second, the charges were not multiplicitous. The state had charged him with attempted child sexual exploitation and child enticement based on a single phone call. Nevertheless, this charging scheme did not offend the prohibition against double jeopardy because the statutes contained significantly different elements. Child sexual exploitation focuses on a sex crime itself; the focus of child enticement, however, "is not the underlying sex crime itself but the act of removing or attempting to remove a child into a secluded place, [and so on]" (¶ 33).

Third, the court applied the three-step Sullivan test and determined that evidence of "other acts" had been properly admitted. The other acts, offered to establish the defendant's motive and intent, involved several videos discovered at the defendant's home that depicted young girls engaged in erotic acts. Both the supreme court and the trial judge were satisfied that the videos bore "striking" similarity to the defendant's proposal to the underage victim in this case.

Finally, no error occurred in permitting the state to amend the information at the close of the evidence. The amended information added no new crimes nor did it "change the crimes originally charged."

First-degree Reckless Injury – "Utter Disregard for Human Life"

Element State v. Jensen, 2000 WI 84 (filed 7 July 2000)

In this "shaken baby" case, the defendant grabbed a 10-week-old infant and shook him vigorously 7 to 15 times. As a result thereof, the infant suffered profound, permanent injuries and is now blind, retarded, unable to walk, and in need of constant care.

Following a bench trial the defendant was convicted of first-degree reckless injury, contrary to Wis. Stat. section 940.23(1). Under this statute the state is required to prove that the defendant caused great bodily harm to another human being by criminally reckless conduct under circumstances that show utter disregard for human life.

On appeal the defendant argued that the state was required to prove his subjective awareness that shaking the infant posed an extreme risk of killing him in order to prove the "utter disregard for human life" element. In a unanimous decision authored by Justice Sykes, the supreme court disagreed. It concluded that the standard for utter disregard for human life is an objective standard and that the state put in sufficient evidence to prove utter disregard in this case.

The court concluded that "utter disregard for human life" is not a sub-part of the intent element of this crime and, as such, need not be subjectively proven. It can be established by evidence relating to the defendant's subjective state of mind – by the defendant's statements, for example, before, during, and after the crime. But it also can be established by evidence of heightened risk, because of special vulnerabilities of the victim, for example, or evidence of a particularly obvious, potentially lethal danger. However it is proven, the element of utter disregard for human life is measured objectively, on the basis of what a reasonable person in the defendant's position would have known. If proven, the offender is considered more culpable because the conduct, according to the standards observed by the great mass of humanity, went beyond simple criminal recklessness to encompass something that, although falling short of an intentional crime, still deserves to be treated more seriously under the law and punished more severely.

In this case the special vulnerability of the victim, the violence of the defendant's act, the great disparity in the respective sizes of the infant and the defendant, the obviousness of the risk, and the severity of the victim's injuries all supported the circuit court's finding of utter disregard for human life.

The defendant argued that his call to 911 after the injuries were inflicted demonstrates enough regard for the infant's life to preclude a finding of utter disregard. The supreme court disagreed, concluding that after-the-fact regard for human life does not negate "utter disregard" otherwise established by the circumstances before and during the crime. It may be considered by the factfinder as a part of the total factual picture, but it does not operate to preclude a finding of utter disregard for human life.

Search and Seizure – Questioning Passenger During Auto Stop About Name and Date of Birth

State v. Griffith, 2000 WI 72 (filed 28 June 2000)

The defendant was a passenger in an automobile that was lawfully stopped by the police. After it was determined that the driver did not have a valid license, the police asked the defendant for his name and date of birth. The information provided in response thereto was false and the defendant was placed under arrest. A search incident to arrest produced marijuana in the defendant's jacket pocket. Following that search, the defendant escaped from custody.

He ultimately was charged with a variety of offenses including obstructing an officer, possession of marijuana, and escape from custody. At the heart of this appeal was the defendant's contention that the officer lacked lawful authority to ask him his name and date of birth. The claim was that this alleged violation of the Fourth Amendment and its Wisconsin counterpart tainted the arrest, the search incident to arrest, and the escape charge.

In a majority decision authored by Justice Wilcox, the supreme court concluded that asking the passenger his name and date of birth during a lawful traffic stop was not an unreasonable search or seizure in violation of the Fourth Amendment. The court held that when a passenger has been seized pursuant to a lawful traffic stop, the seizure does not become unreasonable under the Fourth Amendment or its counterpart in the Wisconsin Constitution simply because an officer asks the passenger for identification during the stop. Passengers are free to decline to answer such questions, and a refusal to answer will not justify prosecution nor give rise to any reasonable suspicion of wrongdoing. However, if a passenger chooses to answer but gives the officer false information, the passenger can be charged with obstructing an officer in violation of Wis. Stat. section 946.41(1).

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.

Competency Determinations – Appellate Standard of Review – Guilty Plea Proceedings in Life Imprisonment Cases – Advising Defendant Regarding Parole Eligibility

State v. Byrge, 2000 WI 101 (filed 13 July 2000)

In this case the supreme court first considered the standard of review that applies when a determination that a defendant is competent to proceed in a criminal case is reviewed on appeal. In a majority decision authored by Justice Prosser, the supreme court concluded that the findings of a circuit court on the issue of competency will not be upset on appeal unless they are clearly erroneous. The court reached this conclusion because a competency hearing presents a unique category of inquiry in which the circuit court is in the best position to appraise witness credibility and demeanor and therefore to apply the law to the facts.

The court also addressed the question of whether a circuit court is obligated to provide the defendant with parole eligibility information before accepting a guilty or no contest plea. This case involved a crime for which the penalty is life imprisonment and, pursuant to Wis. Stat. section 973.014, the trial court needed to decide whether to fix parole eligibility at a certain date or to allow the default provision to apply wherein the defendant would be eligible for parole in approximately 13 years. [NOTE: Section 973.014 subsequently was amended to provide the judge with discretion to order that a defendant convicted of a life imprisonment felony is not ever eligible for parole. Further, it should be noted that this case concerns the imposition of life imprisonment sentences for crimes that were committed before the new truth-in-sentencing law took effect.]

The supreme court held that in the narrow circumstance in which a circuit court has authority under the statute cited above to fix the parole eligibility date, the court is obligated to provide the defendant with parole eligibility information before accepting a guilty plea. Said the court, parole eligibility in this discreet situation implicates punishment and constitutes a direct consequence of the plea. The court went on to hold that, although the circuit judge in this case failed to provide that information directly and although the plea colloquy was accordingly defective, the state nevertheless proved by clear and convincing evidence that the defendant entered his plea knowingly, voluntarily, and intelligently, and that the defendant had real notice about the implications of his plea.

Chief Justice Abrahamson and Justice Bradley filed separate concurring opinions.

Guilty Pleas – Plea Negotiations – No Duty of Trial Court to Advise Defendant that It Anticipates a Longer Sentence than that Recommended by the Prosecutor

State v. Williams, 2000 WI 78 (filed 6 July 2000)

The defendant entered guilty pleas to multiple charges. Pursuant to plea negotiations, the state agreed to recommend specific sentences to the court. Before accepting the plea, the defendant completed a guilty plea questionnaire, acknowledging that he understood that the judge would not be bound to follow any plea agreement or recommendation made pursuant thereto. The trial court also questioned the defendant personally to determine that he understood that the court was not bound by the state's sentence recommendation. Following these advisals, the defendant pled guilty and was given a sentence in excess of that recommended by the state.

On appeal the defendant asked the supreme court to adopt the following new rule procedure: If a trial judge anticipates exceeding the state's sentence recommendation under a plea agreement, the trial judge must inform the defendant of that fact and allow the defendant to withdraw his or her plea.

In a majority decision authored by Justice Wilcox, the supreme court declined to create such a new rule and instead adhered to the well-established law of Wisconsin. In this state, a trial court is not bound by the state's sentence recommendation under a plea agreement. Before entering a plea, the defendant is informed of and understands that the sentence recommendation he or she has bargained for is not binding on the court. Under this procedure, failure to receive sentence concessions contemplated by a plea agreement is not a basis for withdrawing a guilty plea on the ground of manifest injustice. Requiring a trial judge to approve or disapprove of a particular sentence recommendation prior to sentencing would in effect cause the trial court to participate in plea bargaining. Said the court, involving the trial court in the process of plea negotiations is contrary to the proper judicial role.

Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley.

Employment Law

Vesting of Retirement Benefits Under Collective Bargaining Agreements – Presumption of Vesting Applied

Roth v. City of Glendale, 2000 WI 100 (filed 13 July 2000)

The petitioners are 26 former employees of the City of Glendale who retired at different times between 1972 and 1996. All but four had been members of a collective bargaining unit and the others, though they did not belong to the union, received the same benefits. The terms of the employment relationship of the petitioners were embodied in a series of collective bargaining agreements. Between 1972 and 1996, there were 12 successive agreements. Initially, the agreements provided health insurance benefits at no cost to city employees and retirees. From 1972 until 1995, the agreements stated that any employee who retired would be eligible for health insurance when such retiree attained the age of 65, with the city paying the entire premium for the insurance. In the 1995-97 agreement, however, the city and the union negotiated a requirement that all retirees pay a portion of their health insurance premiums.

The retirees sued the city for breach of contract. They claimed a vested right to fully paid health insurance benefits pursuant to the terms of the collective bargaining agreements in force at the time of their respective retirements. They sought an order that the city pay their entire health insurance premiums as provided by the earlier contracts.

The circuit court awarded summary judgment to the city. On appeal the court of appeals affirmed. Since the agreements did not specifically mention vesting or explicitly state that the benefits were granted for life, the court of appeals held that the retirees had no vested right to fully paid health insurance.

In a majority decision authored by Justice Bradley, the supreme court reversed. It concluded that a vesting presumption applies to the agreements in this case in the absence of contractual language or extrinsic evidence indicating otherwise. A presumption in favor of vesting safeguards retirees from potential economic devastation. It also serves to protect the voiceless, said the court, in the subsequent negotiating process. Otherwise, unions that are negotiating on behalf of current employees may unilaterally bargain away contractual promises made to retirees, thereby frustrating the expectations of employees who have earned retirement benefits by providing past services. A vesting presumption comports with the realities of the bargaining process for retirement benefits and the equitable principles underlying that process.

In this case the court concluded that the record was insufficiently developed and thus it was not possible for it to apply the vesting presumption to the contracts. Accordingly it remanded to the circuit court to determine whether health benefits vested under the retirees' collective bargaining agreements.

Justice Sykes filed a concurring opinion that was joined by Justices Wilcox and Prosser.

Evidence

Other Acts – Child Sexual Abuse – "Greater Latitude"

State v. Davidson, 2000 WI 91 (filed 11 July 2000)

The supreme court, in a decision written by Justice Wilcox, reversed the court of appeals and reinstated the defendant's conviction for sexually assaulting his 13-year-old niece. The prime issue on appeal concerned the trial judge's decision to admit evidence that the defendant had assaulted a 6-year-old girl in 1986. The assault in this case occurred in a Winnebago camper during a family trip. The victim testified that the defendant had given her wine and assaulted her while she was sleeping. The 1986 conviction involved the defendant's fondling of a 6-year-old while she was getting a drink of water in a church basement.

In upholding the trial judge's decision to admit the 1986 offense, the supreme court applied the three-step Sullivan test that compels the proponent of the other act evidence to demonstrate: first, that the evidence comports with an acceptable purpose under section 904.04(2); second, that the other act evidence is relevant under section 904.01; and, third, that the probative value of the other act evidence is not substantially outweighed by the danger of unfair prejudice and other considerations. Sullivan also had reinvigorated language in earlier cases strongly suggesting that prosecutors use such evidence sparingly and only where necessary for a legitimate purpose. Despite Sullivan's admonitions, the majority in this case reconfirmed Wisconsin's adherence to a "greater latitude" standard that permits more far reaching use of other act evidence in child sexual abuse cases. It held "that in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis [that is, all three Sullivan steps] of whether evidence of a defendant's other crimes was properly admitted at trial. The effect of the rule is to permit the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child" (¶ 51). The defendant also alleged that the prosecutor's closing argument violated various rights, but the court held that he waived them by failing to make a timely motion for mistrial.

Justice Bradley, joined by Chief Justice Abrahamson and Justice Bablitch dissented, contending that the "greater latitude" standard permits the improper use of the propensity inference against the defendant.

Other Acts – Child Sexual Abuse – "Greater Latitude" – Rape Shield

State v. Hammer, 2000 WI 92 (filed 11 July 2000)

The defendant was convicted of sexually assaulting several teenage boys while they slept overnight at the home where he also was staying. The trial judge admitted evidence that "five to seven years earlier," while a guest at an Ohio home, the defendant had allegedly nonconsensually fondled a sleeping adult who was at least two years older than the defendant at the time.

The supreme court, in a decision written by Justice Crooks, affirmed the conviction. Applying the three-step Sullivan test and the "greater latitude" standard upheld in Davidson (see above), the court held that the other act was relevant to the defendant's "method of operation" as well as his motive and intent. Nor did the trial judge err in excluding evidence offered by the defense to show that the boys (the "victims") had engaged in somewhat similar sexual behavior the day before the assaults. Admission of this evidence would have violated the rape shield statute and its use was not compelled by the defendant's right to present a defense.

Justice Bradley, joined by Chief Justice Abrahamson and Justice Bablitch dissented based on the same principles articulated in their Davidson dissent (see above) and pointed out that the "application of the greater latitude rule in this case seemingly nullifies a more stringent standard for proof of identity."

Insurance

CGL Coverage – Home Construction – Faulty Workmanship

Vogel v. Russo, 2000 WI 85 (filed 7 July 2000)

The plaintiff homeowners sued their builder and his insurer on grounds of negligence and breach of contract. They claimed that faulty masonry work damaged their new home. The builder impleaded the masonry subcontractor and its insurer, West Bend Mutual, which had issued a standard comprehensive general liability (CGL) policy. A jury found for the plaintiffs and awarded damages of $320,000 under two theories: cost of repair and diminution in value. After trial the court accepted the diminution in value as the measure of damages. The judgment included an award for contribution against the masonry subcontractor and its insurer, West Bend. The court of appeals affirmed.

The supreme court, in a decision written by Justice Sykes, reversed on the ground that most of the damages were excluded by West Bend's policy. The court rebuffed any suggestion that this case implicated the "economic loss doctrine"; rather, it was a "coverage dispute between two insurance companies." Construing the CGL coverage at issue, the court held that it applied only to the "collateral property damage associated with the defective masonry work ($3,500), not the defective masonry itself, the cost to repair it, or any effect on the home's value it may have had" (¶ 28).

Chief Justice Abrahamson, joined by Justice Bablitch, dissented. They would hold that the CGL coverage extended to the "defective home" itself through the policy's "loss of use" language.

Valued Policy Law – Mixed Use Properties

Seider v. O'Connell, 2000 WI 76 (filed 30 June 2000)

After a fire destroyed a building the plaintiffs used as both a restaurant and residence, their property insurer paid them the actual cash value of the property lost. This was less than the policy limits on their insurance policy and they thereafter sued their insurer seeking recovery of the balance of their policy limits under Wisconsin's valued policy law. The valued policy law requires insurers to set the amount of loss at the full policy limits when real property "which is owned and occupied by the insured as a dwelling" is wholly destroyed. See Wis. Stat. § 632.05(2).

The insurer did not pay the full limits of the policy, relying on Wis. Admin. Code section INS 4.01(2)(e). This administrative rule excludes from the valued policy law "real property any part of which is used for commercial (nondwelling) purposes other than on an incidental basis."

In a majority opinion authored by Justice Prosser, the supreme court held that the administrative code provision cited above exceeds the statutory authority of the Office of the Commissioner of Insurance (OCI), which promulgated the rule, because the rule contradicts Wis. Stat. section 632.05(2). An administrative rule that conflicts with an unambiguous statute exceeds the authority of the agency that promulgated it. Nothing in the valued policy law limits the dwelling clause to buildings used exclusively as residences.

Use of the property in question as a restaurant did not alter its character as the plaintiffs' dwelling. Had the legislature intended for the statute to apply only to properties used exclusively as dwellings, it could have used more restrictive language. An agency rule that renders the valued policy law inapplicable to real property that the insured owns and occupies as a dwelling is not reasonable and its promulgation therefore exceeds the statutory authority of the OCI. Accordingly, the court was compelled to invalidate it.

Justice Wilcox filed a dissenting opinion that was joined by Justice Crooks.

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