Supreme Court Digest
This column summarizes all decisions of the
Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Civil Procedure
Discovery - Privileges - Patients' Records -
Confidentiality
Crawford v. Care Concepts
Inc., 2001 WI 45 (filed 15 May 2001)
While a resident in a nursing home, plaintiff Crawford allegedly was
attacked and injured by another patient, D.D., who suffered from
Alzheimer's. Her complaint alleged that the attack was caused by the
nursing home staff's negligence. During discovery, the nursing home
refused to provide documents and answer various interrogatories based on
the evidentiary privilege at Wis. Stat. section 905.04 and the
confidentiality of health care records, as provided by Wis. Stat.
section 146.82(1). The trial court granted the plaintiff's motion to
compel discovery. The court of appeals affirmed in part and reversed in
part, concluding that some of the discovery requests arguably did delve
into privileged or confidential material.
The supreme court, in an opinion written by Justice Bablitch,
affirmed. First, the court held that section 905.04, the general health
care provider privilege, did not impede the discovery demands. Although
the privilege broadly extends to "confidential" information and
communications, D.D.'s possible "attacks" on other nursing home
residents were not privileged. Because they are third persons,
"[r]esidents of the nursing home fall outside the network of
relationships set forth in the privilege" (¶22). Nor were possible
attacks on employees or other individuals privileged, albeit for
different reasons. "Applying the privilege to information concerning
assaultive behavior observed at a residential facility by the health
care provider does not advance candid communication between patient and
health care provider." The court concluded that "where a patient engages
in assaultive conduct, such conduct is not intended to be confidential
for the purposes of candid discussion of medical concerns, which is the
purpose of the physician-patient privilege" (¶25). Finally,
interrogatories asking whether D.D. ever engaged in conduct tending to
cause a disturbance also did not call for information "intended" to be
kept confidential or which fell within the rule's policy. Nonetheless,
several interrogatories were worded so broadly that they raised the
possibility of revealing privileged information, so the case was
remanded for an in camera review of such materials (¶28).
Second, the supreme court also held that section 146.82(2) did not
thwart discovery. Although the statute protects the confidentiality of
patient health care records, it is not an absolute bar. In particular,
the "lawful order of the court" exception in section 146.82(2)(a)4
permits a trial court, in its discretion, to order appropriate
discovery. The court also ruled that case law construing Wis. Stat.
section 51.30 was not applicable to section 146.82 because of the vast
differences between chapter 51 mental health commitments and privacy
interests raised by cases like this one. Because the information sought
was not privileged, the court's order granting the motion to compel was
lawful (¶41).
Answer - Failure to File Timely Answer - Excusable
Neglect
Connor v. Connor, 2001 WI 49
(filed 18 May 2001)
In this action, the defendant responded to the plaintiffs' complaint
with an untimely answer. Responding to the defendant's answer, the
plaintiffs filed a motion to strike the answer and a motion for default
judgment, asserting that they did not receive the answer until the
statutory deadline had passed and that no extension of time to answer
was ever requested by or granted to the defendant.
The defendant filed a motion requesting the court to accept her
answer, arguing that the court should regard her answer as timely served
because her attorney had received an extension of time to serve the
answer from a lawyer who worked at the same firm as the plaintiffs'
counsel. After a hearing, the circuit court concluded that defense
counsel's affidavit only stated that he understood that there was a
courtesy extension agreement between the parties; it did not state that
he ever asked for or received an extension. This lack of a clear
agreement was a factor in the court's conclusion that there was
insufficient evidence to support a finding of excusable neglect for the
failure to answer in a timely fashion. Default judgment was entered for
the plaintiff.
The defendant next filed both a motion for reconsideration and a
motion to reopen and vacate the judgment under Wis. Stat. section
806.07(1), relying in part upon a second affidavit from her original
attorney. In that affidavit the attorney alleged that the parties had in
fact entered into an oral courtesy extension agreement. The plaintiffs
responded with an affidavit from their own attorney, denying the
existence of any such agreement. The circuit court denied both of the
defendant's motions, dismissing the second affidavit of defense counsel
as unbelievable and "self-serving." The court of appeals affirmed.
The supreme court, in a unanimous decision authored by Justice
Bablitch, concluded that, on the facts as described above, the circuit
court did not abuse its discretion in granting default judgment or in
denying the motion to vacate the judgment. The defendant failed to
present sufficient evidence of excusable neglect or any other basis for
relief that might be available under Wis. Stat. section 806.07(1).
In the course of its analysis the court observed that "this case
reemphasizes our previous warning that, as a matter of good practice,
such [courtesy extension] agreements should be reduced to writing with
additional notification to the court" (¶21).
Criminal Law
Threat to Judge - "True Threat" Standard Imposed
State v. Perkins, 2001 WI 46
(filed 16 May 2001)
The defendant was convicted of threatening a judge in violation of
Wis. Stat. section 940.203(2). The question of law presented on appeal
was whether a new trial should be granted because the jury instruction
relating to this crime failed to shield the defendant from a conviction
based on constitutionally protected speech.
Some threatening words are protected speech under the First
Amendment. Only a "true threat" is constitutionally punishable under
statutes criminalizing threats. In a majority decision authored by Chief
Justice Abrahamson, the supreme court concluded that the test for a
"true threat" that appropriately balances free speech and the need to
proscribe unprotected speech is an objective standard from the
perspectives of both the speaker and listener. "A true threat is
determined using an objective reasonable person standard. A true threat
is a statement that a speaker would reasonably foresee that a listener
would reasonably interpret as a serious expression of a purpose to
inflict harm, as distinguished from hyperbole, jest, innocuous talk,
expressions of political views, or other similarly protected speech"
(¶29). It is not necessary that the speaker have the ability to
carry out the threat. In determining whether a statement is a true
threat, the totality of the circumstances must be considered.
The jury instruction given in this case did not define a "true
threat" as described above and, accordingly, the court held that the
instruction was inadequate. This deficiency in the jury instruction on
the elements of the crime led the court to conclude that the controversy
in this case was not fully tried and, accordingly, it reversed.
Justice Wilcox filed a concurring opinion that was joined by Justice
Crooks.
Disorderly Conduct - "True Threats" - Purely Written
Speech
State v. Douglas D., 2001 WI
47 (filed 16 May 2001)
The circuit court found that the content of an 8th grade creative
writing assignment authored by the petitioner, a minor, constituted a
threat against the minor's English teacher. Based on this finding, it
adjudicated the petitioner delinquent for violating the disorderly
conduct statute. The court of appeals affirmed.
The juvenile petitioned the supreme court to reverse the court of
appeals decision, presenting two issues for review: 1) Can the
disorderly statute be construed to criminalize purely written speech,
even if the speech does not cause a disturbance? 2) If so, is his speech
protected by the First Amendment, thus barring the state from
prosecuting him for disorderly conduct?
Writing the lead opinion for the court, Justice Wilcox concluded that
purely written speech, even written speech that fails to cause an actual
disturbance, can constitute disorderly conduct as defined by Wis. Stat.
section 947.01. This statute provides as follows: "Whoever, in a public
or private place, engages in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct under
circumstances in which the conduct tends to cause or provoke a
disturbance is guilty of a Class B misdemeanor." This statute is not a
blanket proscription of certain words. By contrast, it is a recognition
of the fact that in some circumstances words carry with them
proscribable nonspeech elements. For example, "unreasonably loud" speech
- even if the words themselves are protected by the First Amendment -
carries with it the nonspeech element of excessive volume. Similarly,
"abusive" speech carries with it the nonspeech element of an express or
implied threat or challenge to fight. These nonspeech elements
constitute the proscribed "conduct" under section 947.01. And it is
these elements that, consistent with the First Amendment, can be
punished under the statute.
Applying this understanding of section 947.01, the court concluded
that "the state is not barred from convicting [the juvenile] for the
content of his story merely because his story consisted of purely
written speech. However, the state still has the burden to prove that
[his] speech is constitutionally unprotected "abusive" conduct, within
the punitive reach of [the disorderly conduct statute]" (¶25).
The court could not agree with the juvenile's contention that
threatening a public school teacher while in school is not the type of
conduct that tends to cause or provoke a disturbance. Said the court,
"it makes no difference under sec. 947.01 whether, as [the juvenile]
asserts, allegedly disorderly conduct actually causes a disturbance.
Rather, the conduct only need to be of the type of conduct that tends to
disturb others" (¶29). The fact that the juvenile's writing
assignment did not cause an actual disturbance is irrelevant to the
present inquiry. It is enough that he conveyed the story to his teacher
under circumstances where such conduct tended to cause or provoke a
disturbance.
The court next considered whether the story was protected by the
First Amendment, thus falling outside the bounds of conduct prosecutable
under the disorderly conduct statute. Wisconsin prohibits true threats
that occur under circumstances where such conduct tends to cause or
provoke a disturbance by means of the section 947.01 prohibition on
"abusive" conduct. If the juvenile's story constituted a true threat,
the state properly could prosecute him for violating the section 947.01
prohibition on "abusive" conduct. Applying the definition of "true
threat" adopted in State v. Perkins, 2001 WI 46 (digested above), the
court concluded as a matter of law that the story submitted by the
juvenile to his English teacher did not constitute a true threat and
thus could not support a disorderly conduct conviction.
The court concluded by noting that, although the First Amendment
prohibits law enforcement officials from prosecuting protected speech,
it does not necessarily follow that schools may not discipline students
for such speech (¶42).
Chief Justice Abrahamson submitted a concurring opinion in which she
agreed with the majority opinion's conclusion that the creative writing
essay is protected by the First Amendment and may not be punished as
criminal conduct. However, the Chief Justice did not join in what she
characterized as the majority's "expansion" of the disorderly conduct
statute.
Justice Bablitch submitted a concurrence arguing that, when dealing
with speech alone in the context of a crime that does not require
intent, he would adopt a test "that focuses on both the subjective
intent of the speaker and the perspectives of a reasonable listener"
(¶62).
Justice Bradley, who was joined by Chief Justice Abrahamson,
submitted a concurring opinion, in which she agreed with the majority's
First Amendment analysis and its conclusion that the speech in this case
was not a true threat. However, Justice Bradley contended that the
majority unnecessarily applied the disorderly conduct statute and
erroneously concluded that the speech at issue would otherwise
constitute disorderly conduct.
Justice Crooks, joined by Justice Wilcox, submitted a concurring
opinion agreeing with the test for true threats in the majority opinion,
the application thereof, and the resulting reversal of the conviction.
He wrote separately to emphasize that the court's decision should not be
interpreted as imposing a limitation upon a school's ability to
discipline its students.
Justice Prosser filed a dissenting opinion.
Disorderly Conduct - "Abusive" or "Otherwise Disorderly
Conduct" - "True Threats"
State v. A.S., 2001 WI 48
(filed 16 May 2001)
A delinquency petition charging disorderly conduct alleged that A.S.
told two girls that he intended to kill everyone at a middle school,
except the girls and some other friends, and that he would make people
suffer in the process. He then provided graphic detail on the manner he
would use to kill or seriously harm specific individuals, including a
teacher, an assistant principal, a police officer, and a classmate. The
petition states that these statements were made during a discussion of
recent school shootings in Colorado.
On these allegations three issues were presented to the supreme court
for its consideration in this appeal: 1) whether the disorderly conduct
statute can be applied solely to speech; 2) whether the juvenile's
speech was protected under the First Amendment; and 3) whether the
elements of disorderly conduct were met in this case.
In a decision authored by Justice Bablitch, the supreme court
concluded that speech alone in certain contexts can constitute
disorderly conduct. Even though in this case the disorderly conduct
statute is being applied to speech, this application is permissible
because the application is not directed at the content of the speech
itself. Instead, the prosecution is directed at controlling the harmful
effects of the speech. "The right of free speech is not absolute. When
speech is not an essential part of any exposition of ideas, when it is
utterly devoid of social value, and when it can cause or provoke a
disturbance, the disorderly conduct statute can be applicable"
(¶17).
The court also concluded that the juvenile's speech was not protected
by the First Amendment. Using the "true threat" analysis adopted in
State v. Perkins, 2001 WI 46 (digested above), the court concluded that
the juvenile's statements, as alleged in the petition, did constitute
true threats. Under the totality of the circumstances, a reasonable
speaker in the position of the juvenile would foresee that reasonable
listeners would interpret his statements as serious expressions of an
intent to intimidate or inflict bodily harm.
Finally, the court concluded that the petition contained sufficient
facts to establish probable cause under the disorderly conduct statute
that the juvenile's language was both abusive and otherwise disorderly.
With reference to the latter, the court found that violent threats of
the type involved in this case are of the kind that tend to disrupt good
order under the circumstances because they could cause the listeners to
be seriously concerned about the safety of those threatened. Further, to
be guilty of disorderly conduct, one's behavior must under the
circumstances tend to cause or provoke a disturbance. Here the court
concluded that the juvenile's violent threats to kill and seriously harm
others could only serve to frighten and cause serious concern to the
listeners.
Chief Justice Abrahamson and Justice Bablitch filed separate
concurrences.
Repeated Acts of Sexual Assault Against the Same Child -
Constitutionality of Wis. Stat. Section 948.025
State v. Johnson, 2001 WI 52
(filed 30 May 2001)
Wis. Stat. section 948.025 provides that it is a Class B felony if
one "commits 3 or more violations under s. 948.02(1) or (2) [first and
second-degree sexual assault of a child] within a specified period of
time." The statute further provides that if a case brought under this
statute is tried to a jury, in order to find the defendant guilty, the
members of the jury must unanimously agree that at least three
violations occurred within the time period alleged, but need not agree
on which acts constituted the requisite number.
In this case the defendant challenged the statute provision that
relieves the jury of any requirement of unanimity as to the specific
individual acts of sexual assault that combine to constitute the crime,
as long as the jury unanimously agrees that the defendant committed at
least three such assaults.
Section 948.025 previously survived a unanimity challenge under the
state constitution. See State v. Molitor, 210 Wis. 2d 415, 565
N.W.2d 248 (Ct. App. 1997). However, since the Molitor case was decided,
the U.S. Supreme Court issued a decision holding that to convict a
defendant under the federal "continuing criminal enterprise" drug
statute, the jury must unanimously agree on the specific underlying drug
code violations that comprise the "continuing criminal enterprise." See
Richardson v. U.S., 526 U.S. 813 (1999). The defendant argued
that Molitor cannot survive Richardson and, since the jury in his case
had not been instructed that it must be unanimous on the specific
predicate acts of sexual assault that comprise the crime, his right to a
unanimous verdict was violated.
In a majority decision authored by Justice Sykes, the supreme court
concluded that Molitor survives Richardson, and that
under the state and federal constitutional analyses in both cases, the
statute in question is constitutional.
Critical to the court's analysis was its conclusion that, under
section 948.025, the predicate acts of sexual assault are not themselves
elements of the offense about which the jury must be unanimous before
convicting the defendant. Rather, to convict under this statute, the
jury need only unanimously agree that the defendant committed at least
three acts of sexual assault with the same child within the specified
time period. Where evidence of more than three acts is admitted, the
jury need not unanimously agree about the underlying acts as long as it
unanimously agrees that the defendant committed at least three. In other
words, said the court, "it is the course of sexually assaultive conduct
that constitutes the primary element of this offense, about which the
jury must be unanimous.... Unanimity is explicitly not required
regarding the individual acts of sexual assault" (¶16).
Further, the court concluded that the statute does not violate due
process, a constitutional protection that can limit the state's ability
to define a crime so as to dispense with the requirement of jury
unanimity on the alternate means or modes of committing a crime. Due
process requires an inquiry into the fundamental fairness and
rationality of the legislative choice. In this regard the court
concluded that it was not unfair or irrational for the legislature to
lift the requirement of jury unanimity as to the specific underlying
acts of child sexual assault because, among other things, the predicate
acts of first and second-degree sexual assault that combine to establish
the required course of conduct under section 948.025 are "basically
morally and conceptually equivalent" (¶18).
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson and Justice Bablitch.
Prior Federal Conviction - Subsequent State Prosecution -
Statutory Bar
State v. Hansen, 2001 WI 53
(filed 30 May 2001)
The defendant was arrested and charged in circuit court with
possession with intent to deliver cocaine. While the state prosecution
was pending, a federal grand jury indicted for conspiracy to distribute
and possess with intent to distribute cocaine under federal law. In May
1998 the defendant pled guilty to federal conspiracy charges in federal
court and was sentenced to prison. She then brought a motion to dismiss
the pending state charges in this case pursuant to Wis. Stat. section
961.45. The circuit court denied the motion and she then pleaded guilty
but preserved her appellate rights on this issue. The court of appeals
certified this case to the supreme court to resolve whether "the term
'same act' under § 961.45 [is] defined by the elements of the state
and federal crimes, or by the conduct for which the defendant is
convicted?" (¶8).
The supreme court, in an opinion written by Justice Bradley, reversed
the state conviction because "a prior federal conviction based on the
same conduct constitutes a conviction for the 'same act' under §
961.45" (¶1). The court closely examined the statute's legislative
history, its plain language, related statutes, and case law on double
jeopardy. The court refused to be bound by a footnote in an earlier case
that suggested, in dicta, that "identity of law" controlled such issues,
not the actual conduct (¶32-¶33). Moreover, the court's
construction of section 961.45 better furthered the avowed policy of
creating an "interlocking trellis" of state and federal enforcement
efforts (¶36).
Chief Justice Abrahamson concurred but wrote separately to address
several points raised in a dissent by Justice Wilcox, who was joined by
Justice Crooks.
Interrogation - Miranda Waiver
State v. Bond, 2001 WI 56
(filed 31 May 2001)
In a per curiam decision, an equally divided supreme court, Justice
Sykes not participating, affirmed the decision by the court of appeals
at 2000 WI App 118. The issue concerned whether an officer's remarks
constituted custodial interrogation that required a valid Miranda
waiver.
Employment Law
Restrictive Covenants - Customer Lists - Corporate
Successors
Farm Credit Services v.
Wysocki, 2001 WI 51 (filed 30 May 2001)
In 1983 Wysocki signed an employment agreement with PCA of Wausau
that contained a covenant not to compete. PCA made agricultural loans
and provided other financial services to its customers. Over the years
PCA merged with other entities and increased its geographical area.
Following a 1991 merger, PCA was named the "surviving association" and
later changed its name to Farm Credit Services of North Central
Wisconsin (FCS). In 1998 Wysocki notified his supervisor that he was
quitting and that he intended to solicit FCS customers. FCS brought this
action to enforce the covenant not to compete. The circuit court granted
Wysocki's motion for summary judgment, and the court of appeals
affirmed.
The supreme court, in an opinion written by Justice Wilcox, reversed
in an opinion that addressed two issues. First, the covenant not to
compete was lawful despite Wysocki's claim that it impermissibly
expanded the geographic area of coverage through a subsequent merger.
After reviewing Wisconsin law and policy that regard such covenants with
"suspicion," the court focused on the precise contract language at
issue. Here the covenant not to compete was a "customer list limitation
rather than a geographical restriction" (¶13). Moreover, it was
"more narrowly tailored" than those at issue in prior cases because it
included only those customers that Wysocki "serviced in the year prior
to his date of separation" (¶14). Nor did the two subsequent
mergers alter the matter because the covenant specifically "contemplated
a fluid customer list limitation rather than a rigid geographical
restriction." The court held that such "fluid customer list limitations
should be given greater breadth than rigid geographical restrictions
because they oftentimes 'more clearly approximate[] the area of the
employer's vulnerability to unfair competition by a former employee and
[do] not deprive the employee of legitimate competitive opportunities to
which he is entitled'" (¶15). Finding the covenant not to be per se
invalid, the supreme court remanded the case for an evidentiary hearing
on whether it was reasonable under Wis. Stat. section 103.465
(1997-98).
The second issue necessitated a fact-intensive scrutiny of the record
in which the court found that PCA of Wausau had not been "merged out of
existence" in a way that destroyed the original covenant. Nothing in the
merger or the controlling statutes abrogated the 1983 employment
agreement.
Chief Justice Abrahamson concurred and wrote separately to emphasize
an "internal contradiction" in the majority's opinion between principles
of contract law and the state's public policy of viewing such covenants
as prima facie suspect. The Chief Justice concluded that it is an "open
question of fact whether the covenant not to compete anticipated
enlargement of the specified territory."
Family Law
Divorce - Stipulations - Repudiation of
Stipulations
Van Boxtel v. Van Boxtel,
2001 WI 40 (filed 2 May 2001)
In this case the petition for review and the briefs of both parties
articulated the issue presented for review as follows: "When a husband
and wife, during marriage but after the commencement of divorce
proceedings, enter into a written marital property agreement classifying
a piece of real estate as the individual property of the wife, should
that agreement be enforced in making the property division in a divorce
proceeding?" See 10, note 4.
To resolve this issue the supreme court had to contend with the
ultimate question of whether the agreement described above, which was
signed after divorce proceedings had commenced, was a stipulation
subject to court approval under Wis. Stat. section 767.10(1) or a
binding agreement under section 767.255(3)(L). In a unanimous decision
authored by Justice Bradley, the court concluded that any agreement
regarding the division of property entered into between spouses after
divorce proceedings have commenced is a stipulation under section
767.10(1) and is therefore subject to court approval.
In this case the circuit court refused to incorporate the stipulation
into the divorce judgment. The supreme court concluded that the lower
court's refusal to do so was warranted by the husband's repudiation of
his consent to the stipulation. The repudiation of consent to a
stipulation by a party may render the stipulation nonexistent.
Thereafter, a court's refusal to incorporate it into the judgment cannot
be said to be an erroneous exercise of discretion.
Property
Ownership of Church Property - Wis. Stat. Section 187.15(4) -
United Methodist Church
Wisconsin Conference Board of
Trustees of the United Methodist Church Inc. v. Culver, 2001 WI
55 (filed 31 May 2001)
Wis. Stat. section 187.15(4) provides as follows: "Whenever any local
Methodist church or society shall become defunct or be dissolved, the
rights, privileges and title to the property thereof, both real and
personal, shall vest in the annual Conference and be administered
according to the rules and discipline of said church." The United
Methodist Church (UMC) is organized in a hierarchical fashion and the
Conference referred to in the statute is UMC's state-level
organizational body.
In this case a local Methodist church broke away from the Methodist
denomination, and the Conference moved to assume control of the local
church property. The Conference's primary contention was that under Wis.
Stat. section 187.15(4), the local church had become defunct or
dissolved, thus entitling the Conference to all property held by the
local church.
In a majority decision authored by Justice Bradley, the supreme court
concluded that the local church's cessation of ties to the UMC and the
statewide Conference rendered it defunct or dissolved under the statute.
By operation of section 187.15(4), title to the property at issue
thereafter vested in the Conference.
Chief Justice Abrahamson and Justice Wilcox filed separate
dissents.
Wisconsin Lawyer
