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    Wisconsin Lawyer
    March 01, 2002

    Supreme Court Digest

    Daniel BlinkaThomas Hammer

    Wisconsin Lawyer
    Vol. 75, No. 3, March 2002

    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

    * *

    Criminal Law

    Self-defense - Carrying a Concealed Weapon

    State v. Nollie, 2002 WI 4 (filed 23 Jan. 2002)

    The defendant was convicted of carrying a concealed weapon. He appealed on the ground that the trial court erred by not permitting him to raise self-defense as a justification defense. The court of appeals certified the case to the supreme court.

    The supreme court, in a decision authored by Justice Wilcox, affirmed. On the facts presented in the record, the trial court properly refused to give the self-defense instruction. Thus, the court did not have to reach the question of "when, if ever, the privilege of self-defense may be asserted for the crime of carrying a concealed weapon" (¶1). Viewing the evidence in the light most favorable to Nollie, the court found no proof of a "specific threat" that gave rise to an actual and reasonable belief of "actual or imminent unlawful interference" (that is, danger) (¶24). Although four men nearby were "loud and profane," no evidence showed that they had "threatened, accosted, communicated or even noticed Nollie at any time" (¶24, emphasis in original). The court's concern, frankly stated, was that "[t]o allow an individual to claim self-defense under such circumstances would essentially allow anyone walking in a `high crime neighborhood' to conceal a weapon - a situation that, again, would eviscerate the legislature's intent in making carrying a concealed weapon a crime" (¶26).

    Criminal Procedure

    Waiver of Jury - Judicial Colloquy with Defendant Required

    State v. Anderson, 2002 WI 7 (filed 24 Jan. 2002)

    The defendant was convicted of a misdemeanor following a bench trial. On appeal he contended that his jury trial waiver was both statutorily and constitutionally inadequate, because the trial judge and the prosecutor failed to affirmatively approve and consent to the waiver and because the circuit court did not engage him in a personal colloquy confirming his written waiver of jury.

    Wis. Stat. section 972.02(1) provides in pertinent part that criminal cases shall be tried by a jury unless the defendant waives a jury in writing or by statement in open court on the record with the approval of the court and the consent of the state. In this case the defendant signed a written waiver of jury, but the state did not explicitly consent to the waiver nor did the court expressly approve of it.

    In a majority decision authored by Justice Crooks, the supreme court concluded that the circuit court approved the defendant's jury trial waiver by accepting the waiver on the record, scheduling a bench trial, and then subsequently conducting a bench trial. It also held that the state consented to the jury trial waiver by participating in a bench trial without voicing objection.

    However, the court held that the record was insufficient to determine whether the defendant's jury trial waiver was knowing, intelligent, and voluntary. The right to a jury trial is a fundamental right and waiver thereof must be by an intentional relinquishment or abandonment of that right. While the statute cited above establishes the procedure for waiving a jury trial, its requirements are not sufficient to determine whether a defendant's waiver is knowing, intelligent, and voluntary.

    Accordingly, the supreme court mandated the use of a personal colloquy in every case in which a criminal defendant seeks to waive his or her right to a jury trial. To prove a valid jury trial waiver, said the supreme court, the trial judge "must conduct a colloquy designed to ensure that the defendant: 1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; 2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people that must agree on all elements of the crime charged; 3) was aware of the nature of a court trial, such that the judge will make a decision on whether or not he or she is guilty of the crime charged; and 4) had enough time to discuss this decision with his or her attorney" (¶24).

    With regard to the appropriate remedy in this case, the supreme court held that the circuit judge must hold an evidentiary hearing on whether the waiver of the right to a jury trial was knowing, intelligent, and voluntary. The state will have the burden of proving by clear and convincing evidence that the waiver met those standards. If the state is able to satisfy its burden, the conviction will stand. If the state fails to meet its burden, the defendant will be entitled to a new trial.

    Justice Prosser filed a dissenting opinion.

    Negotiated No-contest Pleas to Multiplicitous Counts - Remedy for Double
    Jeopardy Violation

    State v. Robinson, 2002 WI 9 (filed 29 Jan. 2002)

    As a result of injuries inflicted by the defendant on the victim in a single episode, the defendant was charged with one count of aggravated battery and with one count of recklessly endangering safety. The potential penalty on each charge was increased because the defendant was a repeat offender.

    Pursuant to plea negotiations, the state agreed to reduce the aggravated battery count to a charge of recklessly endangering safety and to dismiss the habitual criminality allegations. In return, the defendant agreed to plead no-contest to the amended charge of recklessly endangering safety and no-contest to the original count of recklessly endangering safety as well. The state also made sentence recommendation concessions. The circuit court accepted the defendant's pleas and found him guilty on both charges.

    The defendant filed a post-conviction motion, alleging that the two counts of recklessly endangering safety to which he had pled no-contest were identical in law and in fact and that his two convictions were therefore multiplicitous and in violation of the double jeopardy clauses of the state and federal constitutions. The circuit court denied the motion and the court of appeals certified the case to the Wisconsin Supreme Court.

    In a unanimous decision authored by Chief Justice Abrahamson, the supreme court reversed. It began its analysis by noting that the parties agreed on two important propositions: 1) the amended information to which the defendant pled no-contest was multiplicitous and violated the double jeopardy provisions of both the state and federal constitutions; and 2) the defendant's plea of no-contest did not waive his right to bring a post-conviction motion to challenge his conviction on double jeopardy grounds.

    Those agreements having been noted, the court identified the single issue before it as follows: What is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous in violation of the constitutional guarantees against double jeopardy?

    The court concluded that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the state made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to the positions they were in before the plea agreement was negotiated. See ¶ 3.

    The court further concluded that under some circumstances this remedy might not be appropriate, and the judge should therefore examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant's and the state's interests.

    In the present case, the court held that, after examining all the circumstances, the available remedies, and the parties' interests, the parties should be restored to the same positions they held before the defective plea agreement was entered. No claim was made by the parties that this remedy would adversely affect the state's ability to prosecute or the defendant's ability to defend against the counts alleged in the original information. Further, the defendant did not make a persuasive argument that this remedy would be fundamentally unfair because it would expose him to the risk of a greater sentence.

    Prosecutor's Breach of Plea Agreement - Standard of Review

    State v. Williams, 2002 WI 1 (filed 3 Jan. 2002)

    In this case the supreme court was confronted with two issues. The first involved identification of the appropriate standard of review in cases involving alleged breaches of plea agreements. In a majority decision authored by Chief Justice Abrahamson, the court concluded that the terms of the plea agreement and the historical facts of the state's conduct that allegedly constitute a breach of a plea agreement are questions of fact that are reviewed on appeal using the clearly erroneous standard of review. The court further concluded that whether the state's conduct constitutes a breach of a plea agreement and whether the breach is material and substantial are questions of law that the appellate court determines independently of the lower courts.

    Having identified the appropriate standard of review, the court next confronted the issue of whether the state breached the plea agreement with the defendant in the present case and whether that breach was material and substantial. The agreement called for the prosecutor to make a specific sentencing recommendation. The majority concluded that the prosecutor's statements at the sentencing hearing undercut the plea agreement, resulting in a material and substantial breach thereof. Although the prosecutor accurately stated the terms of the plea agreement, including the state's recommendation that was a part of the agreement, the supreme court concluded that these remarks were not adequate to overcome the prosecutor's covert message to the circuit court that a more severe sentence was warranted than that which had been recommended. "We agree with the court of appeals that `what the prosecutor may not do is personalize the information, adopt the same negative impressions as [the author of the presentence investigation report] and then remind the court that the [author] had recommended a harsher sentence than recommended. That is what happened here.'" (¶ 48).

    In the view of the supreme court, the state covertly implied to the sentencing judge that the additional information available from the presentence investigation report and from a conversation with the defendant's ex-wife raised doubts regarding the wisdom of the plea agreement terms. Said the court, "the state cannot cast doubt on or distance itself from its own sentence recommendation. Although the state is not barred from using negative information about the defendant that has come to light after the plea agreement and before the sentencing, the state may not imply that if the state had known more about the defendant, the state would not have entered into the plea agreement. The state was distancing itself from the recommendation in the present case by implying its reservations about the sentence agreement" (¶ 50).

    Upon reviewing the state's remarks at the sentencing hearing, the court concluded, as a matter of law, that the state stepped over the fine line between relaying information to the circuit court on the one hand and undercutting the plea agreement on the other. Therefore, it substantially and materially breached the plea agreement because it undercut the essence of that agreement. The court remanded the case to the circuit judge for resentencing.

    Justice Wilcox filed an opinion concurring in part and dissenting in part, in which Justices Crooks and Sykes joined.

    DNA - Discovery

    State v. Shuttlesworth, 2002 WI 3 (filed Jan. 18, 2002)

    The supreme court, per curiam, concluded that the petition for review in this case was improvidently granted and therefore dismissed it. The issue on review was the state's alleged failure to comply with Wis. Stat. section 972.11(5) by not disclosing the procedures and protocols relied on by its expert to conclude that the defendant was the source of the DNA. The court observed that the statute in question had been repealed by 2001 Wis. Act 16, § 4003t. Chief Justice Abrahamson and Justice Sykes did not participate.


    Bad Faith - Damages

    Jones v. Secura Insurance Co., 2002 WI 11 (filed 1 Feb. 2002)

    In 1985 the Joneses bought a hotel and residence on a lake. In 1993 they insured it with Secura, whose representative labeled the property a "good" risk. The Joneses filed a claim with Secura in 1997 because their property was "leaning" toward the lake. A claims adjuster concluded, however, that the condition was the result of an "on-going situation" and not a collapse, which would have been covered by the policy.

    In March 1999 the Joneses filed a lawsuit alleging bad faith and breach of contract against Secura. The trial court dismissed the breach of contract claim because it was precluded by the one-year statute of limitation, Wis. Stat. section 631.83(1)(a). The trial court also ruled that the Joneses could not use the bad faith claim to recover for their lost property, the lost use of their property, and lost business. The court reasoned that such damages arose only from the contract, and the contract claim had been dismissed.

    The Joneses filed an interlocutory appeal, which was granted, and the court of appeals certified the case to the supreme court, which reversed in a decision written by Justice Crooks. The primary issue was whether a bad faith claim included damages that also could be pursued in a breach of insurance contract claim, especially when the contract claim was dismissed as barred by the statute of limitation.

    The court reviewed the case law on bad faith claims in Wisconsin, reaffirming the doctrine's primary tenets in its "overview." Turning to this issue of first impression, the court relied upon language in DeChant v. Monarch Life Insurance Co. to the effect that an insurer is liable to an insured "for any damages which are the proximate result" of the insurer's bad faith (¶32). In order to clarify "any discrepancy among the cases," the supreme court withdrew language to the contrary from several other decisions (¶33).

    In the context of this case, the DeChant "proximate result standard" "controls the scope of the damages available in a bad faith action, regardless of whether damages falling within that scope would be otherwise recoverable in a breach of an insurance contract claim" (¶35). Put differently, the Joneses could recover their economic damages through the bad faith claim despite the dismissal of the claim based on the policy.


    Redistricting of State Legislative Districts - Petition to Commence Original Action in Wisconsin Supreme Court Denied

    Jensen v. Wisconsin Elections Board, 2002 WI 13 (filed 12 Feb. 2002)

    Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E. Panzer, representing Assembly and Senate
    Republicans, petitioned the Wisconsin Supreme Court for leave to commence an original action on the issue of state legislative redistricting that is necessary as a result of the 2000 decennial census. Among other things, the petitioners asked the supreme court to remap Wisconsin's senate and assembly districts in time for the 2002 election cycle.

    Intervenors in this action argued against the supreme court's assumption of original jurisdiction because a three-judge panel of the U.S. District Court for the Eastern District of Wisconsin has already taken jurisdiction over state legislative redistricting and has scheduled a trial in the matter in April 2002.

    In a per curiam decision, the supreme court, though recognizing that its participation in the resolution of the issues presented by this case ordinarily would be highly appropriate in the absence of a timely legislative compromise, declined to accept original jurisdiction.

    The court recognized that, at this point in time, the official commencement of the next election season is but three-and-a-half months away and, though well into the first legislative session following the 2000 census enumeration, neither the state Senate nor the state Assembly has submitted a legislative redistricting bill. Beyond this time problem, the court concluded that accepting original jurisdiction at this juncture necessarily would put this case and any redistricting map it would produce on a collision course with the case already pending before the federal panel. Further, the outcome in state proceedings would be subject to later review in federal court. "At best, such a scenario would delay and disrupt the 2002 election session, which is now almost upon us. At worst, it would throw the whole process into considerable doubt" (¶ 16).

    The court indicated that there is no question but that this matter warrants the supreme court's original jurisdiction and, had that jurisdiction been invoked earlier, the public interest may well have been served by the court hearing and deciding the case. As it stands now, the public interest would not be so served.

    In the opinion of the court, accepting original jurisdiction would undermine principles of cooperative federalism and federal-state comity and would result in an unjustifiable duplication of effort and expense, all of which would be incurred by Wisconsin taxpayers. "Simultaneous, separate efforts by the state and federal courts addressing the subject of legislative redistricting would engender conflict and uncertainty regarding the validity of the respective plans that the parallel litigation would produce. The risk that this would leave the state with no clear, authoritative map of legislative districts going into the upcoming election season is significant" (¶ 19).

    Lastly, the court noted that it has no established protocol for the adjudication of redistricting litigation in accordance with contemporary legal standards. A procedure would have to be devised and then implemented, all of which would take time and "there is precious little of that left ..." (¶ 21).

    For all of these reasons, while recognizing and agreeing that the institutions of state government are primary in matters of redistricting, and federalism requires deference to state high courts for their resolution, the timing and circumstances now present do not allow the supreme court to responsibly exercise original jurisdiction in a way that would do substantial justice to the case.

    The court concluded its opinion by urging the legislature to draft a redistricting plan and by initiating a rulemaking process to develop procedures for original jurisdiction in future redistricting cases.

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