Vol. 74, No. 7, July 2001

Court of Appeals Digest

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

• Civil Procedure
• Creditor/Debtor Law
• Criminal Procedure
• Family Law
• Motor Vehicle Law
• Municipal Law

Civil Procedure

Discovery - Hospital Records - Privilege

Braverman v. Columbia Hospital Inc., 2001 WI App 106 (filed 11 April 2001) (ordered published 30 May 2001)

During the discovery phase of this medical malpractice case, the defendant hospital refused to provide various information on grounds of a peer-review privilege in Wis. Stat. section 146.38. The court of appeals, in an opinion written by Judge Nettesheim, affirmed in part and reversed in part.

The first category of information concerned "statistical data" reflecting the rates of infection for postoperative patients since 1990. The court held that such data is not privileged peer review material because it falls within the exception set forth in section 146.38 (3)(d) for reports in "statistical form." The hospital unsuccessfully argued that the statute was ambiguous and that it was "absurd" to conclude that the legislature mandated disclosure of such material. The court noted that the hospi-tal's remedy lies with the legislature.

The second item concerned a report by the Wisconsin Department of Health and Family Services on the hospital's "infection quality assurance," which the court held was not subject to disclosure. Although the report was that of a state agency, the privilege provisions of section 146.38 controlled its disclosure (¶ 30). That statute's broad mandate that "no person" involved in the hospital review or evaluation may disclose any information acquired in connection with the review effectively cloaked the public agency's report from discovery.

Finally, the trial court did not err by failing to conduct an in camera review of the requested material before ruling that it was not discoverable. If a discovery request is facially sufficient, the opponent may invoke the privilege on that basis alone. Requiring in camera reviews would needlessly "shift the initial burden to the trial court to sift and winnow through the material sought (¶ 37).

Creditor / Debtor Law

Judgment Debtor - Spouses - Supplementary Examination

Courtyard Condominium Assoc. Inc. v. Draper, 2001 WI App 115 (filed 18 April 2001) (ordered published 30 May 2001)

The plaintiff, a condo association, obtained a $52,000 judgment against Barbara D., individually. During a supplementary examination, Barbara professed ignorance about marital property she held with her husband, Lewis. When the association requested an order requiring Lewis to submit to a supplementary examination pursuant to Wis. Stat. section 816.03(1)(b), the circuit court agreed with Lewis that third parties could not be examined under the statute.

The court of appeals, in an opinion written by Judge Anderson, reversed. Read together, Wis. Stat. section 816.03(1) and section 816.06 "unambiguously require the judgment debtor to submit to a supplementary examination to determine if there is property available to satisfy the judgment," but language in section 816.06 created ambiguity about whether a third person also could be so examined. The ambiguity required the court to "combine" two different statutory schemes: "(1) the right of the judgment creditor to inquire about the amount and location of property that could satisfy the judgment and (2) the right of the judgment creditor to proceed against all marital property and the nonjudgment debtor spouse to satisfy the judgment" (¶ 12). Thus, the court held "that a judgment creditor may examine the spouse of a judgment debtor under Wis. Stat. § 816.03" (¶ 15). To hold otherwise would bar a judgment creditor from satisfying a judgment from marital property where the debtor spouse pleads ignorance, as in this case, a result that would be "unreasonable and absurd."

Criminal Procedure

Searches - Consent

State v. Munroe, 2001 WI App 104 (filed 20 March 2001) (ordered published 30 May 2001)

The court of appeals, in an opinion written by Judge Fine, reversed defendant's conviction for possession of marijuana because the trial court should have granted his motion to suppress the evidence. The search occurred in a motel room. Although officers actually were at the motel to look for drugs, guns, and prostitutes, they entered defendant's motel room ostensibly to check his identification. Upon request, the defendant produced his identification, and police determined that he was not in violation of a local ordinance that prohibits persons from registering under assumed names. At this point the officers' "license" to be in the room expired, and they had no authority to use their continued presence to conduct a general search. Although the defendant eventually acquiesced to a search after continued questions and renewed requests following his initial refusal, such "consent" was not voluntary. The court emphasized that "the officers' requests to search were themselves unlawful assertions of authority" (¶ 12). The case law governing attenuation also supported the court's conclusion.

Judge Schudson concurred.

Searches - Community Caretaking Function

State v. Ferguson, 2001 WI App 102 (filed 3 April 2001) (ordered published 30 May 2001)

The court of appeals, in an opinion written by Judge Curley, affirmed the defendant's conviction for possession of marijuana and the denial of his motion to suppress evidence. Stressing "the unique facts presented here," the court found that police officers who searched his closet were legitimately serving their role as community caretakers. When they lawfully entered the apartment, police observed abundant evidence of underage drinking, including one "highly intoxicated young man" lying sick on the floor. Officers "feared" that other underage drinkers might be in distress in defend-ant's locked bedroom. After 30 minutes of yelling and pounding on the door, police "jimmied" the lock and entered the bed-room where they observed "people, including [defendant] Ferguson, in the bed." They also opened a closet to determine if someone else was hiding in there, and instead discovered the marijuana.

In upholding the search of the closet, the court stressed that police were not investigating a "crime" because underage drinking, while subject to sanctions, is not a criminal offense. On this record the court was satisfied that the police officers' "only purpose in opening the closet door was to confirm that no highly intoxicated person was hiding there" (¶ 14). Authority for the search was found in cases exploring the "emergency search" doctrine, where the officers' motivation is a key element.

Judge Fine concurred and wrote separately only to contest the precedent relied upon by Judge Schudson in his dissent.

Evidence - Other Acts - Cross-examination - Hearsay

State v. Meehan, 2001 WI App 119 (filed 17 April 2001) (ordered published 30 May 2001)

The court of appeals, in an opinion written by Judge Wedemeyer, reversed the defendant's conviction for second-degree sexual assault. In 1996 the defendant grabbed the penis of a 14-year-old boy at a health club. At his sexual assault trial, the prosecution offered evidence that in 1992 the defendant was convicted of sexually assaulting a 23-year-old man when he rubbed the man's penis while he slept. The court concluded that the two crimes were not sufficiently similar under the case law. In particular, the significant age discrepancy between the two victims - age 14 and age 23 - distinguished this case from others where all victims were near the same age, as did the marked dissimilarities in the circumstances of the two offenses (clothing, manner of touch, place).

Second, the state conceded that the prosecutor should not have cross-examined an alibi witness about the facts of the 1992 conviction, but argued that the error was harmless. Rejecting the harmless error analysis, the court observed that the 1992 conviction clearly was used to attack the defendant's character, as forbidden by Wis. Stat. section 904.04(1).

A third reversible error occurred when the state "dramatically" read to the jury prior testimony by the victim, who also testified at trial. "In essence, the jury heard [the victim's] testimony multiple times: once through [his] live testimony, and twice more, through the dramatic reading of the prior testimony."

Out-of-state Prison Transfers - Motion to Modify Sentence Based on Such Transfers

State v. Parker, 2001 WI App 111 (filed 18 April 2001) (ordered published 30 May 2001)

Pursuant to plea negotiations, the prosecutor amended the charge against the defendant from attempted first-degree intentional homicide to first-degree reckless injury, and the defendant entered a no-contest plea to the amended charge. He received a lengthy prison sentence and has been transferred to an out-of-state prison. On appeal he contended that his transfer to the out-of-state prison was a breach of the plea agreement or, alternatively, a "new factor" meriting sentence modification.

In a decision authored by Judge Brown, the court of appeals rejected both of these arguments. There was no proof whatsoever that the prosecutor or the court promised the defendant that he would serve his prison sentence in Wisconsin, nor could a prosecutor or court bind the Department of Corrections by such a promise. Accordingly, the defendant failed to prove by clear and convincing evidence that a material and substantial breach of the plea agreement occurred. The court also rejected the defendant's claim that his transfer to an out-of-state prison constitutes a "new factor" warranting sentence modification.

Finally, the court considered whether a defendant's knowledge of the out-of-state prison transfer law is a prerequisite to a knowing and voluntary plea. The court concluded that transfer to an out-of-state facility, which may or may not occur at the discretion of the Department of Corrections, is a collateral consequence of conviction, and that the defendant needed no knowledge of the prison transfer law in order to make his plea knowing and voluntary.

Parole - Waiver of Minimum Service Requirements

State ex rel. Szymanski v. Gamble, 2001 WI App 118 (filed 25 April 2001) (ordered published 30 May 2001)

The defendant was convicted of multiple counts of second-degree sexual assault and was sentenced to 42 years in prison. Six years later the parole commission notified the sentencing judge that it intended to waive the requirement that the defendant serve a minimum of 25 percent of his sentence before becoming eligible for parole. The commission was acting pursuant to Wis. Stat. section 304.06(1m), which authorizes such waiver if the parole commission determines that extraordinary circumstances warrant an early release and the sentencing court has been notified and permitted to comment upon the proposed recommendation.

In this case the record does not reflect any response from the sentencing judge and, in due course, the parole commission waived the minimum service requirements and changed the defendant's parole eligibility date. Since then he has been considered for parole approximately eight times. Each time parole has been denied.

In this habeas corpus action, the defendant argued that because the parole commission had found extraordinary circumstances warranting waiver of the minimum service of sentence requirement, he was entitled to release on parole. The trial court concluded that the parole commission's determination rendered the defendant eligible for early parole consideration but did not entitle him to immediate release on parole.

In a decision authored by Judge Nettesheim, the court of appeals agreed with the circuit court. The statute cited above simply permits the parole commis-sion to waive the minimum service requirement if certain conditions are met. While the grant of parole might logically follow from a determination of extraordinary circumstances as described in the statute, the law does not dictate that the inmate be immediately released on parole.

Mental Responsibility Examinations - Self-incrimination and Right to Counsel Issues

State v. Slagoski, 2001 WI App 112 (filed 4 April 2001) (ordered published 30 May 2001)

In response to charges of burglary and burglary while armed with a dangerous weapon, the defendant entered pleas of not guilty and not guilty by reason of mental disease or defect. The trial court ordered competency and mental responsibility examinations. Two psychiatrists, including one chosen by the defendant, performed the examinations. Both concluded that he was legally sane at the time of the charged crime. Additionally, the psychiatrist chosen by the defendant expressed a belief that the defendant posed a "homicidal-suicidal risk" because of his psychopathology.

The defendant thereafter changed his pleas to guilty and no contest to the two charges. At sentencing the prosecutor incorporated the findings of the two psychiatrists to argue the defendant's future dangerousness. The trial court sentenced the defendant to a 25-year term of incarceration followed by a l0-year term of probation, expressing a belief that the doctors' reports showed that the defendant had certain mental health issues that increased his risk of future dangerousness.

Among the issues on appeal was the defendant's contention that use of the pretrial psychiatric evaluations during sentencing violated his Fifth Amendment right to be free from compelled self-incrimination and his Sixth Amendment right to the assistance of counsel. Relying primarily upon Estelle v. Smith, 451 U.S. 454 (1981), he argued that his constitutional rights were violated when, before the pretrial examinations, he was not advised that he had the right to remain silent and that his statements and the reports themselves could later be used against him during the sentencing proceedings.

In a decision authored by Judge Brown, the court of appeals affirmed, finding no such Fifth or Sixth Amendment violations. The court indicated that it was clear that the defendant waived his Fifth Amendment rights when, through counsel, he initiated a psychiatric evaluation and placed his mental condition into controversy by entering pleas of not guilty and not guilty by reason of mental disease or defect. Furthermore, his own attorney requested one of the psychiatrists who performed an evaluation. Because the defendant commenced the process for pretrial evaluations and submitted to the examinations, the court concluded that he cannot now claim that use of those evaluations in sentencing compelled him to testify against himself.

The main thrust of the defendant's argument was that he deserved specific notice that his evaluations could be used to establish future dangerousness at sentencing. The court of appeals found itself in agreement with a line of cases that hold no such specific notice is required under Estelle and its progeny.

The court further concluded that, because the prognosis of future dangerousness was within the scope of examinations performed by the psychiatrists, no Sixth Amendment violation occurred. Said the court, "the defense was reasonably put on notice that the clinical impressions of the doctors would be highly relevant to the issue of future dangerousness, a legitimate sentencing consideration" (¶ 18).

Family Law

Divorce - Maintenance - Counting Pension Payments as Income for Purposes of Fixing Maintenance

Wettsteadt v. Wettsteadt, 2001 WI App 94 (filed 8 March 2001) (ordered published 25 April 2001)

Diane and Gary Wettsteadt married in 1970 and divorced in 1998. Under the terms of their divorce judgment, Gary was ordered to pay Diane maintenance in the amount of $1,200 per month. In June 2000 Gary successfully obtained a court order that reduced the amount of maintenance he must pay to Diane by the amount of pension benefits she will receive when Gary retires under a Qualified Domestic Relations Order (QDRO) entered at the time of the divorce.

On appeal Diane argued that the trial court erred in reducing the amount of Gary's maintenance obligation because her receipt of pension benefits does not constitute a substantial change in circumstances and because the trial court's order results in the impermissible "double-counting" of the pension benefits as both an asset for property division and as income for the maintenance determination.

In a decision authored by Judge Deininger, the court of appeals affirmed. It concluded that the trial court did not erroneously exercise its discretion in modifying the maintenance obligation in light of Diane's receipt of pension benefits under the QDRO. A critical factor in the court's decision was that the divorce judgment provided for an equal division of the parties' marital estate but did not include the value of Gary's pension in the division. Thus, Diane did not "give up" other property in exchange for her interest in Gary's pension, and Gary did not receive other property as an offset to Diane's future right to share in his pension.

Turning to the issues in this case, the appellate court concluded that the trial court did not err in determining that the significant change in both parties' incomes occasioned by Gary's retirement represents a substantial change in each of their financial circumstances. The appellate court concurred with the circuit judge's assessment that, when the original trial judge entered the order for $1,200 per month in maintenance, he was aware that at some point Gary would be retiring from his employment and that maintenance would have to be adjusted accordingly. By equally dividing Gary's pension benefits through a QDRO, the judge who presided at the divorce hearing was able to ensure that each party would enjoy a comparable level of post-retirement income.

Regarding Diane's double-counting claim, the court of appeals held as follows: "When an employee-spouse's pension is divided by a QDRO, and no value is assigned to either spouse's interest to be offset by other property awarded in the property division, a family court is not prohibited by the 'double-counting' rule from considering pension distributions in determining maintenance" (¶ 20). In Pelot v. Pelot, 116 Wis. 2d 339, 342 N.W.2d 64 (Ct. App. 1983), the court of appeals concluded that if the present value of a pension is included in the estate, then the pension payments themselves are not counted as income for purposes of fixing maintenance when the divorce is granted. In this case the court characterized its holding as simply the corollary of the Pelot rule, that is, "if the present value of a pension is not included in the marital estate for property division purposes, such as when a pension is divided by a QDRO as in this case, then the pension payments may be counted as income for purposes of fixing maintenance" (¶ 20).

Motor Vehicle Law

OWI - Graduated Penalties - Determining Offender Status

State v. Skibinski, 2001 WI App 109 (filed 24 April 2001) (ordered published 30 May 2001)

On Aug. 10, 1999, the defendant was arrested for driving while under the influence of an intoxicant. This was his second OWI arrest within a five-year period. Before this case was resolved, he was arrested again on Sept. 15, 1999, for OWI. This was his third arrest within a 10-year period. On Dec. 16, 1999, the defendant entered guilty pleas in both cases.

The trial court ruled that the legislative scheme for OWI penalties permitted it to sentence the defendant using third offender penalties for both offenses. In a decision authored by Judge Wedemeyer, the court of appeals disagreed.

The question before the appellate court was whether the trial court could accept guilty pleas to a second and third offense OWI and then apply the increased penalties for third offense OWI to both charges at sentencing. Under the facts as described, the court concluded that the Aug. 10, 1999, violation must be sentenced as a second offense, and the Sept. 19, 1999, violation must be sentenced as a third offense.

Municipal Law

Landlocked Parcels of Land - Access Roads - Authority of Towns

Tagatz v. Township of Crystal Lake, 2001 WI App 80 (filed 29 March 2001) (ordered published 25 April 2001)

The plaintiff owns a landlocked parcel of land in the Town of Crystal Lake. After an unsuccessful attempt to purchase an easement from his neighbors in order to build an access road to his property across his neighbor's land, the plaintiff petitioned under Wis. Stat. section 80.13, asking the town to lay out an access road to his land. The town supervisors held a hearing on the petition and denied it, concluding that the public highway requested by the plaintiff was not in the public interest.

In this action the plaintiff contended that the town did not have the authority to deny his petition. He relied on section 80.13(3), which provides in part: "the [town] supervisors shall meet at the appointed time and place and shall then in their discretion proceed to lay out such highway of not more than three nor less than two rods in width to such real estate." (Emphasis added.) The plaintiff argued that the words "in their discretion" in this statute apply to the width of the road and to its location, but do not give the town discretion whether to lay out such a road in the first place.

In a decision authored by Judge Mason (sitting by special assignment pursuant to the Judicial Exchange Program), the court of appeals concluded that the words "in their discretion" in the statute do not apply merely to the width of the road or its location. Rather, the statute gives town boards the right to exercise discretion as to whether it should lay out a road at all. Said the court, "to preclude a town board from exercising its discretion could require town taxpayers to pay for roads to parcels even smaller or less buildable than this one" (¶ 9).

Property

Condemnation - Acceptance and Retention of Condemnation Award

TFJ Nominee Trust v. Wisconsin Department of Transportation, 2001 WI App 116 (filed 24 April 2001) (ordered published 30 May 2001)

This case arose in connection with a condemnation of property by the Wisconsin Department of Transportation (DOT) as part of an intersection reconstruction project. DOT contended that the property owner is barred from contesting DOT's right to condemn the property because the property owner has retained the unnegotiated award check that DOT had sent to it. DOT argued that because the property owner has not returned the check, it has accepted and retained compensation as defined in Wis. Stat. section 32.05(3)(h), which provides that "acceptance and retention" of any compensation resulting from an award made prior to the commencement of a court action to contest the right of condemnation shall be an absolute bar to such an action.

In a decision authored by Chief Judge Cane, the court of appeals concluded that the mere retention of the unnegotiated award check should not bar a landowner's pursuit of a remedy under section 32.05(5). The phrase "acceptance and retention of any compensation" requires that the landowner negotiate the check and retain the check proceeds before the owner can be barred from contesting the condemnation under the statute. A landowner who holds rather than cashes an award check is not barred from suit.

Sexual Discrimination

Country Club - Private Nonprofit Organizations

Barry v. Maple Bluff Country Club Inc., 2001 WI App 108 (filed 5 April 2001) (ordered published 30 May 2001)

Jane Barry, a member of the Maple Bluff Country Club (the Club), alleged that the Club "engaged in sex discrimination by providing more advantageous services and opportunities to men than to women club members." The circuit court dismissed her complaint.

The court of appeals, in an opinion written by Judge Roggensack, affirmed because "the Club is a private, nonprofit organization that satisfies the requisite criteria of ch. 106 to fall outside the scope of Wisconsin's public accommodation law" (¶ 1). More precisely, the Club was a bona fide private organization that provided goods or services to the three groups described in Wis. Stat. section 106.04(1m)(p)2: members, guests named by members, and guests named by the organization. First, the court was satisfied that the Club was a "private organization" as defined by the law. Prospective members are carefully screened and selected. The Club's board controls its property and activities. Second, the Club's activities were carefully limited to the three statutory groups described above; "the statute does not require that each guest be individually named;" rather, the "bylaws, rules of the Club and resident privilege card identify those guests with sufficient specificity to monitor their use and exclude the general public while honoring the payments in kind for which the Club is obligated under [its lease with the village]" (¶ 17).