Supreme Court Digest

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

• Criminal Prodedure
• Employment Law
• Sexually Violent Persons
• Torts
• Worker's Compensation

Criminal Procedure

Terry Stops - Anonymous Tips - Automobile Frisks

State v. Williams, 2001 WI 21 (filed 13 March 2001)

This appeal was before the Wisconsin Supreme Court on remand from the U.S. Supreme Court, which vacated the Wisconsin Supreme Court's prior decision in this case (see State v. Williams, 225 Wis. 2d 159, 591 N.W.2d 823 (1999)) and remanded it for reconsideration in light of Florida v. J.L., 120 S. Ct. 1375 (2000). [In J.L. the Supreme Court held that an anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. In that case the officers' suspicion that J.L. was carrying a weapon arose not from their own observations, but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide the reasonable suspicion required to make a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).]

In this case Milwaukee police received an anonymous telephone call indicating that someone was dealing drugs out of a blue and burgundy Bronco parked in the caller's apartment building parking lot. Officers responded to the call and, upon arrival at the scene four minutes after being dispatched, observed a blue and burgundy Chevy Blazer with two occupants in the parking lot that the caller had described. Without conducting any surveillance or observing any drug activity, the officers approached the vehicle with weapons drawn and ordered the defendant and his passenger out of the vehicle. Prior to this they had observed that the defendant's right hand was out of view, reaching down and behind the passenger front seat. A subsequent protective search of the vehicle revealed the presence of marijuana and cocaine. Thereafter the defendant was placed under arrest.

The first issue before the court was whether an anonymous tip containing a contemporaneous report of drug trafficking, combined with independent observations and corroboration of details from the tip, justified the investigatory stop of the defendant. Writing for the court, Justice Crooks concluded that, considering the totality of the circumstances, including the indicia of reliability surrounding the anonymous tip and the police officers' additional observations, the officers reasonably suspected that criminal activity was afoot.

The court concluded that there were many distinctions between the anonymous tip in this case and the tip in Florida v. J.L., supra, which indicated that the tip in this case was reliable. First, instead of being a "bare-boned" tip about a gun, as was the case in J.L., the anonymous tipster in this case explained to the police operator how she knew about the activity she was reporting: She was observing it. The tipster in J.L. was totally unknown whereas the informant in this case identified her location by address and indicated that it was the apartment building where she lived. Even though she did not identify herself by name, she did provide self-identifying information and, when an informant places his or her anonymity at risk, the court felt it could consider this factor in weighing the reliability of the tip. Further, the circuit court in this case found that the caller was a "citizen informant," and the supreme court felt that citizens who purport to have witnessed a crime are to be viewed as reliable and that the police should be able to act accordingly, even though other indicia of reliability have not yet been established.

Unlike J.L., there was an audio recording in this case of exactly what the tipster reported to the police. The recording provides an opportunity, though somewhat limited, to review the caller's veracity. Such review could examine not only the content of the call but also the caller's tone and delivery. The recording also would be of assistance in the event that the police needed to find the anonymous caller.

The reliability of the anonymous tip in this case was further bolstered by police corroboration of innocent, although significant, details of the tip. And finally, unlike J.L., there were circumstances present in this case that gave the officers additional reason to suspect that criminal activity was afoot, including the defendant's hand being extended behind the passenger's seat, a gesture that may have indicated he was either reaching for a weapon or concealing evidence as he saw the officers approach. For all of these reasons, the court concluded that the state met its burden of showing that the investigatory stop of the defendant was justified on the basis of reasonable suspicion.

The court further held that the protective search of the vehicle that followed the stop was justified. Based upon the defendant's activity in the vehicle as the officers approached, coupled with the fact that they were responding to a drug complaint, led the court to conclude that the officers reasonably suspected that they were in danger of physical injury and that the circumstances warranted the protective search of the vehicle.

Justice Prosser filed a concurring opinion.

Justice Bablitch filed a dissent that was joined by Chief Justice Abrahamson and Justice Bradley.

Terry Stops - Anonymous Tips

State v. Rutzinski, 2001 WI 22 (filed 20 March 2001)

Police received a call that a black pickup truck was being driven erratically. The caller was driving in traffic with the truck and kept in contact with the police dispatcher until after the truck was stopped. As a matter of fact, when the officer pulled in behind the truck prior to stopping it, the caller relayed to the dispatcher that the officer was following the correct truck and that the caller was in the vehicle ahead of the truck. Although the officer did not independently observe any signs of erratic driving, he activated his emergency lights and conducted a traffic stop of the black pickup. This led to the defendant being subsequently arrested for OWI. [Note: The motorist who had reported the erratic driving also pulled over when the officer initiated the stop. Although the motorist did not speak with the arresting officer, he or she did speak with a police supervisor at the scene. However, there is no record of the motorist's name or other identification, or any indication of what was said between the supervisor and the motorist.]

The defendant moved to suppress all evidence that flowed from the stop of his truck, contending that the information in the motorist's call was not sufficiently reliable to justify the stop and that the stop therefore was unreasonable under the Fourth Amendment of the U.S. Constitution and the equivalent provision of the Wisconsin Constitution. The circuit court denied the suppression motion and the court of appeals affirmed.

In a majority decision authored by Justice Wilcox, the supreme court also affirmed. It held that the tip in this case provided sufficient justification for an investigative stop of the defendant. First, the tip contained sufficient indicia of the informant's reliability. The information in the tip exposed the informant to possible identification and, therefore, to possible arrest if the tip proved false. The tip reported contemporaneous and verifiable information regarding the defendant's alleged erratic driving, his location, and his vehicle's description. Further, the officer verified many of the details in the informant's tip before making the stop.

Secondly, the allegations in the tip could suggest to a reasonable police officer that the defendant was driving while under the influence of an intoxicant. This exigency, said the court, strongly weighs in favor of immediate police investigation.

For the foregoing reasons, the court concluded that the stop did not violate the Fourth Amendment or its Wisconsin counterpart.

Chief Justice Abrahamson filed a concurring opinion.

Probation Revocation - Review by Writ of Certiorari - Exhaustion of Administrative Remedies

State ex rel. Mentek v. Schwarz, 2001 WI 32 (filed 4 April 2001)

The circuit court dismissed the petitioner's petition for a writ of certiorari seeking review of an order issued by an administrative law judge (ALJ) from the Division of Hearings and Appeals (DHA) revoking his probation. The court held that he failed to exhaust his administrative remedies prior to filing the petition as required by Wis. Stat. section 801.02(7). The court of appeals affirmed the circuit court, also concluding that administrative remedies were not exhausted under the same statute.

The issue before the supreme court was whether the petitioner was required to exhaust his administrative remedies under section 801.02(7) or any other rule of law in order to petition the circuit court for a writ of certiorari. [The administrative remedy that was available to him was an appeal from the ALJ's decision revoking probation to the administrator of DHA, which is part of the Department of Administration.] Writing for the court, Chief Justice Abrahamson concluded that section 801.02(7) (1995-96) (which has since been amended) does not apply to a petition for a writ of certiorari seeking judicial review of a probation revocation by the Department of Administration.

The court further held that this case fell within recognized exceptions to the doctrine of exhaustion of administrative remedies. While the law is well established that judicial relief will be denied until parties have exhausted administrative remedies, a court need not apply the exhaustion doctrine in a rigid, unbending way. The supreme court concluded that the petitioner's need for judicial review is substantial in that he has been incarcerated under protest since 1997 and has made credible legal arguments in his various pro se filings in the courts. Further, the Division of Hearings and Appeals' interest in precluding the petitioner from litigation is weak. Finally, the court believed that the public interest in the sound administration of justice would suffer if it were to deny the petitioner meaningful judicial review under the circumstances in this case. Those circumstances included the petitioner's allegation that his attorney agreed to file an administrative appeal following probation revocation and then, after expiration of the time period for doing so, informed the petitioner that such an appeal would not be filed.

Chief Justice Abrahamson also wrote a separate concurrence that was joined by Justice Bradley.

Factual Basis for Guilty/No Contest Pleas - Felon in Possession of a Firearm - Sufficiency of "Possession" Evidence

State v. Black, 2001 WI 31 (filed 5 April 2001)

Milwaukee police went to a residence to investigate a narcotics complaint. They were admitted into the upper unit of the building and discovered several bags of marijuana and a pistol under the mattress in a woman's bedroom. That woman, who lived in the upper unit, was the defendant's girlfriend. The defendant himself lived in the lower residence of the building. Regarding the evidence recovered from the woman's unit, the defendant admitted to the police that the marijuana was his and that he had "handled" the pistol two days earlier, but did not know who owned it. This admission was included in the criminal complaint.

The defendant was charged with possession with intent to deliver a controlled substance and with possession of a firearm by a convicted felon. The defendant pled no contest to these charges. After finding that the defendant had entered his no contest pleas voluntarily and with full knowledge of the nature of the charges and possible penalties, the court asked the parties whether it could use the criminal complaint as a factual basis for the plea. Both counsel responded in the affirmative. The defendant also indicated that he had read the complaint and understood that the court was going to use the facts in the complaint as the basis for the plea. The defendant also had executed a standard plea questionnaire which included, among other things, his acknowledgment that he had read the complaint and understood the elements of the offense and their relationship to the facts in this case and how the evidence established his guilt.

After sentencing, the defendant filed a post-conviction motion seeking to withdraw his no contest plea to the firearm charge. The circuit court denied the motion. In a split decision, the court of appeals reversed the circuit court.

The supreme court, in a majority decision authored by Justice Wilcox, reversed the court of appeals. The first issue confronted by the court was whether the circuit judge conducted an appropriate "inquiry" under Wis. Stat. section 971.08(1)(b) which provides that "before the court accepts a plea of guilty or no contest, it shall ... make such inquiry as satisfies it that the defendant in fact committed the crime charged." The supreme court concluded that the circuit judge did so. It could find no authority for the proposition that the statute requires a judge to make a factual basis determination in one particular manner or prohibits a judge from using the complaint for that purpose. Instead, the plain language of the statute merely requires the circuit judge to make such inquiry as satisfies the court that the defendant in fact committed the crime charged. While a circuit court may look beyond the complaint to the record during the factual basis inquiry, no authority requires a circuit court to do so. If the facts set forth in the complaint meet the elements of the crime charged, they may form the factual basis for a plea.

In this case the defendant entered a no contest plea. By so pleading, he declined to exercise his right to put the state to its burden of proving him guilty beyond a reasonable doubt, but he did not admit unqualified guilt. When a defendant enters a no contest plea, he or she is not required to admit guilt to every charge, which is precisely the advantage of entering a no contest plea instead of a guilty plea. Accordingly, the circuit court need not ask the defendant to admit guilt to every charge. Even so, said the majority, a no contest plea is an implied confession of guilt for purposes of the case to support a judgment of conviction and in that respect is equivalent to a plea of guilty ( 15). Accordingly, the defendant's no contest plea, coupled with the guilty plea questionnaire and the colloquy described above, was sufficient to support his conviction on the firearm charge, as long as the facts set forth in the complaint met the elements of the offense.

Turning to the facts of this case, the court also concluded that the statement in the criminal complaint recounting the defendant's admission that he "handled the pistol" satisfied the possession element of the crime of felon in possession of a firearm. See Wis. Stat. § 941.29. In the context of this offense, the term "possess" simply means that the defendant knowingly had actual physical control of a firearm. The statute does not specify what length of time a felon must possess the firearm in order to violate the law. The allegation that the defendant "handled the pistol" was sufficient to show possession because such action amounts to exercising actual physical control over the firearm, even though it may have been only for a brief time.

The majority rejected the "implicit thrust" of the defendant's argument that the defendant did not touch the pistol with malicious intent. Instead, he may only have handled it for a brief time and may have informed the owner that she did not need it. The crime, however, precludes the defendant from handling a firearm because of his status as a felon. His intention in handling the weapon is irrelevant in determining whether he violated the statute.

The court recognized that there are circumstances where a felon may be able to assert one of the six privileges codified in Wis. Stat. section 939.45 by way of a defense. In fact, the defendant attempted to raise section 939.45(6), which allows one who has committed a criminal act to claim a defense when his or her conduct is privileged by the statutory or common law of Wisconsin. However, said the majority, there is no statute or case that the defendant can cite as privileging his handling of the pistol contrary to the statute.

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

Employment Law

At-will Employees - Tort Action Against Employer for Misrepresentation to Induce Continued Employment

Mackenzie v. Miller Brewing Co., 2001 WI 23 (filed 20 March 2001)

The plaintiff was an at-will employee of Miller Brewing Co. He sued his former employer in tort seeking damages for what he claimed was intentional misrepresentation regarding the grade level of his position at the company, which misrepresentation led him to continue his employment there. The jury found in favor of the plaintiff and awarded compensatory and punitive damages.

The court of appeals reversed. It concluded that under Tatge v. Chambers & Owen Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998), the plaintiff's claim for intentional misrepresentation was not actionable in tort.

In a majority decision authored by Justice Wilcox, the supreme court affirmed the court of appeals. The question before the court was whether an at-will contract employee can maintain an action against his or her employer in tort for intentional misrepresentation to induce continued employment. The court concluded that those who are party to an at-will contract must seek recourse in contract rather than tort law and that it would be imprudent for the court to recognize the plaintiff's proposed cause of action at this time. [Note: The plaintiff acknowledged his inability to bring a contract cause of action against the employer.]

The employment-at-will doctrine is an established general tenet of workplace relations in Wisconsin and the court has been reluctant to interpose the judiciary between employees and employers. The court recalled its language in Tatge that "no duty to refrain from misrepresentation exists independently of the performance of the at-will employment contract" ( 15). Were the tort of intentional misrepresentation to exist independently of the at-will contract, it could subject employees and employers to liability. Because such a cause of action would have a profound effect on potentially millions of at-will employees, the court believed that the legislature - not the judiciary - would be a more appropriate forum to address whether the at-will doctrine should be so altered. Absent an applicable statute, the court rejected the plaintiff's attempt to create a new tort within the contractual relationship and emphasized the need to preserve the boundary between tort law and contract law. Accordingly, it held that there is no cause of action in Wisconsin for intentional misrepresentation to induce continued employment.

Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bablitch. Justice Crooks did not participate in this decision.

Sexually Violent Persons

Failure to Conduct Examination of Mental Condition Within Six Months After Initial Commitment - Remedy

State ex rel. Marberry v. Macht, 2001 WI 19 (filed 13 March 2001)

[EDITORS' NOTE: This case was before the supreme court on certification from the court of appeals. The certified question was as follows: "Is a person committed under Chapter 980 entitled to release from said commitment when the Department of Health and Family Services neglects to conduct a periodic examination of the committed person's mental condition within six months after the initial commitment as mandated by Wis. Stat. § 980.07(1)?"]

The supreme court was equally divided on the resolution of this appeal. Justices Wilcox, Crooks, and Sykes would affirm the decision of the circuit court. Chief Justice Abrahamson and Justices Bablitch and Bradley would issue an order requiring additional briefing of specific issues. Justice Prosser did not participate.

Accordingly, the court vacated its decision to certify and remanded the case for consideration by the court of appeals.

Torts

Underage Drinking - Immunity - "Providers" - Third Parties

Meier v. Champ's Sports Bar & Grill Inc., 2001 WI 20 (filed 13 March 2001)

The plaintiff, Meier, age 19, along with two friends, ages 19 and 21, spent the night drinking alcoholic beverages at a Champ's Sports Bar. No personnel at Champs ever asked the boys for identification and none of the three ever represented himself as of legal drinking age. The three friends took turns "providing" alcohol for one another. Without dispute, the boys were intoxicated when they left the bar and got into an automobile driven by Meier's 19-year-old friend. Later the driver lost control, the car careened down an embankment, and Meier was seriously and permanently injured. In 1995 Meier filed suit against the driver, Champs, and the bar's two owners. The circuit court granted summary judgment in defendants' favor, concluding that they had immunity under Wis. Stat. section 125.035.

Hearing the case on bypass, the supreme court, in an opinion written by Justice Bradley, affirmed. Because all defendants were generally immunized by section 125.035(2), the main issue was whether Meier's claims fell within an exception for "third parties" under section 125.035(4)(b). The court held that "an individual who provides alcohol to an underage person that is a substantial factor causing an accident cannot be considered a third party under section 125.035(4)(b)" ( 17). Applying the "common definition of third party," the court concluded that a "third party is someone other than the underage drinker or a provider who provides alcohol that is a substantial factor in causing the third party's injuries" ( 24). Meier's provision of alcohol to the driver was a substantial factor in the accident that later injured Meier. "An individual may not provide injury-causing alcohol and also claim to be a third party in order to take advantage of the exception to immunity in an action against another provider" ( 25). This construction of the statute also advanced the legislative goal of deterring persons like Meier who provide alcohol to underage persons (the driver).

The court's holding also comported with the statute's legislative history. The legislature drafted section 125.035 in response to several cases in the mid-1980s. It was inappropriate to "strictly construe" section 125.035 because the statute was not in "derogation of the common law"; rather, it "attempted to codify the common law as it existed in 1985" ( 34).

Finally, Meier argued that regardless of whether he "provided" some alcohol for the group, he was an injured third party with respect to those purchases made by his two friends. The court refused, however, to "subdivide and nuance an evening of drinking into a dozen or so individual transactions in a case such as this" ( 39).

Res Ipsa Loquitur - "Illness Without Forewarning"

Lambrecht v. Kaczmarczyk, 2001 WI 25 (filed 23 March 2001)

In February 1996 the defendant-driver's automobile was traveling westbound on a straight and dry road when it collided with three other automobiles. Two of the cars were traveling in the same direction as the defendant and were in a right turn lane. The third vehicle, the plaintiff's, was in the intersection where it was in the process of turning left across the defendant's lane. The defendant's car rear-ended the first vehicle, brushed the rear bumper of the second, and skidded across the divided median where it struck plaintiff's vehicle.

Medical evidence established that the defendant died of a heart attack, but experts disagreed about when it occurred. One doctor opined that it occurred before the collision, but other medical experts testified that it was impossible to determine when defendant suffered the heart attack. The plaintiff filed a simple negligence claim against the defendant-driver's estate and the trial court granted summary judgment to the defendants. The circuit court ruled that "a res ipsa loquitur inference of negligence was inapplicable because it is just as likely that an unforeseen illness caused the collision as it is that negligence did" ( 18).

On certification from the court of appeals, the supreme court reversed in an opinion written by Chief Justice Abrahamson. First, it held that "the applicability of the res ipsa loquitur doctrine raised in the motion for summary judgment is a question of law that this court determines independently of the circuit court, benefiting from its analysis" ( 27). Second, the pleadings and record demonstrated that plaintiff had made out a prima facie case of negligence. This "extraordinary case" supported the relatively unusual application of the res ipsa loquitur inference in an automobile collision case. In particular, the defendant's car struck three cars, two of which were moving in the same direction as the defendant-driver. The plaintiff's vehicle was either stopped or just starting to move.

The third issue concerned whether defendants had established a defense that defeated the plaintiff's negligence claim. This issue forced the supreme court to confront two seemingly inconsistent lines of cases, one relied upon by the defense and the other by the plaintiff, both of which are extensively discussed. The court suggested that the two lines could be distinguished "on the basis of the strength of the inference of negligence that arises under the circumstances of the collision, that is, the likelihood of the alleged tortfeasor's negligence is substantial enough to permit the complainant's reliance on res ipsa loquitur even if evidence is offered to negate the inference" ( 72). The facts of this case raised a "strong inference of negligence" that "survives alongside evidence that the defendant-driver suffered a heart attack sometime before, during, or after the collision" ( 76). Although expert testimony conflicted and the evidence raised competing inferences, such issues were properly before the trier of fact.

Finally, the court observed that the defendants might prevail in two ways. First, the jury might "decline to draw the permissible inference of the defendant-driver's negligence arising from the facts of the collision itself." Second, the defendants might carry their burden of persuasion on the defense of "illness without forewarning" ( 87).

Justice Crooks, joined by Justices Wilcox and Sykes dissented on the grounds that the majority's decision "effectively overruled precedent established over the course of a century and not only undermined the res ipsa loquitur doctrine, but also summary judgment methodology" ( 91).

Worker's Compensation

Average Weekly Wage - Inclusion of Health Insurance Premiums

Theuer v. Labor and Industry Review Commission, 2001 WI 26 (filed 3 April 2001)

The plaintiff suffered a work-related injury while employed by defendant Ganton Technologies Inc. At the time of his injury, he received an average weekly salary of $506.86. His employer also contributed $77.14 each week toward the plaintiff's health insurance. The plaintiff's labor agreement provided that the employer would continue to pay the health insurance premiums for 90 days when an employee was out of work due to a work-related injury. Following expiration of the 90-day period, the plaintiff was no longer covered by his employer's health insurance plan, though he had the option of extending this coverage by paying premiums of $626.61 per month.

The Department of Workforce Development excluded the cost of the health insurance premiums in determining the plaintiff's average weekly wage, from which his worker's compensation benefits were calculated. An administrative law judge agreed, as did the Labor and Industry Review Commission (LIRC), which found that under its longstanding interpretation of Wis. Stat. section 102.11(1)(e), only taxable compensation was to be included in the calculation of an employee's average weekly wage. The circuit court affirmed the LIRC. The court of appeals certified the case to the Wisconsin Supreme Court.

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed. The question before the court was whether LIRC properly excluded health insurance premiums when calculating the plaintiff's average weekly wage under the statute cited above for purposes of determining disability benefits. The statute directs LIRC to include in earnings any things of value that are received in addition to monetary earnings as a part of the contract. LIRC interprets the statute to include those things that are taxable and to exclude nontaxable fringe benefits such as meals for cost, insurance, and retirement contributions.

Employing a great weight deference standard, the supreme court held that LIRC's conclusion that health insurance premiums are not a thing of value received in addition to monetary earnings as part of the wage contract is a reasonable interpretation of the statute and, accordingly, it affirmed the judgment of the circuit court affirming the decision of the LIRC.