Vol. 75, No. 4, April
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
Civil
Procedure
Pleadings - Failure of Licensed Attorney to Sign Pleadings -
Fundamental Defect
Schaefer v.
Riegelman, 2002 WI 18 (filed 27 Feb. 2002)
The plaintiff was represented in this legal malpractice action by the
Minneapolis law firm of Winthrop & Weinstine. The summons and
complaint, which were filed in a Wisconsin circuit court on Aug. 17,
1999, were signed by attorney Julie Fishel, who wrote "Robert R.
Weinstine (by J.A. Fishel)" above a signature line with the typed name
of Robert R. Weinstine and Weinstine's Wisconsin State Bar number below
the line. Fishel signed the documents at the express request of
Weinstine, who was not available to personally sign them. Both Weinstine
and Fishel were licensed to practice law in Minnesota. Weinstine was
also licensed in Wisconsin, but Fishel was not.
After the plaintiff's complaint was filed, Fishel signed a petition
in the Wisconsin court to appear pro hac vice and an admission order was
signed by a Wisconsin judge on Aug. 31, 1999. On Sept. 9, 1999, the
defendant filed an answer in which he raised the defenses that the
circuit court lacked personal and subject matter jurisdiction because
the summons and complaint were defective. On Sept. 20 the plaintiff
filed an amended summons and complaint. The amended summons was signed
by Fishel in her capacity as an attorney admitted pro hac vice, but the
amended complaint was simply a photocopy of the original complaint. The
defendant immediately renewed his affirmative defenses in his answer to
the amended complaint.
In May 2000 the defendant filed a motion for summary judgment, which
motion was granted by the circuit court. The plaintiff appealed and the
court of appeals certified the case to the Wisconsin Supreme Court,
which accepted the certification.
In a majority decision authored by Justice Wilcox, the supreme court
affirmed. The court concluded that the pleadings were defective, the
defect was fundamental rather than technical, and the defect was not
cured by any action taken by the plaintiff. Accordingly, the circuit
court properly granted the defendant's motion for summary judgment based
on lack of jurisdiction.
Wis. Stat. section 802.05(1)(a) provides in pertinent part that every
pleading, motion, or other paper of a party represented by an attorney
"shall be subscribed with the handwritten signature of at least one
attorney of record in the individual's name." Although the signature in
this case was handwritten, it was not the signature of the attorney of
record in that attorney's own name. Attorney Fishel was not licensed to
practice law in Wisconsin when the pleadings were filed and she was
therefore ineligible to appear as an attorney of record. The statute
does not allow for the delegation of the subscription requirement to an
agent.
The court further determined that attorneys Fishel and Weinstine were
unable to cure the defect in the pleadings. Fishel's pro hac vice
admission was not enough to cure the defect. One of the fundamental
requirements of granting a motion for pro hac vice admission is that the
nonresident counsel proceeds in connection with an attorney who is
licensed to practice in Wisconsin and that the Wisconsin attorney
appears and takes part in the proceeding. As of the time that Fishel
made her motion to appear pro hac vice, no Wisconsin attorney had
appeared on the record because the original pleadings had been
improperly subscribed. Because there was no sponsoring attorney on the
record, Fishel's signature could not retroactively become valid to
commence the action when she was admitted pro hac vice. Likewise, the
filing and service of the amended complaint did not cure the defect. The
amended complaint was merely a photocopy of the original pleading.
Lastly, the court considered whether the defect in the complaint was
fundamental or technical in nature. The court concluded that the defect
was fundamental and that the circuit court therefore lacked jurisdiction
over the defendant. Reflecting on the significance of the subscription
requirement, the court indicated that "the subscription requirement is
not simply putting ink on paper. Rather, it is a deliberate process by
which the lawyer guarantees the validity of a claim. When a lawyer signs
a pleading, it is not merely a pro forma act of notarization. Before
affixing a signature to pleadings, the lawyer is expected to engage in a
moment of reflection, review the facts, consider the law, and satisfy
himself or herself that there is a good faith basis on which to commence
the action. In this way the subscription requirement provides an
essential protection for the people and businesses of the state to
remain free from being sued frivolously or improperly - a protection
that is at the core of an attorney's professional responsibility"
(¶ 30).
During the course of this opinion, the supreme court considered the
court of appeals' recent decision in Novak v. Phillips, 2001 WI
App 156. In Novak the court of appeals held that the
rubber-stamped signature of the attorney of record on a summons and
complaint was a technical defect. The supreme court overruled
Novak to the extent that the court of appeals held that the
subscription defect was technical rather than fundamental. See
¶ 33.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justices Bradley and Prosser.
Transient Rule of Personal Jurisdiction - Fraud Exception
Manitowoc Western Co. Inc. v.
Montonen, 2002 WI 21 (filed 27 Feb. 2002)
Manitowoc Western Co. is a Wisconsin corporation that employed
Montonen, a California resident, in its California facility. In October
1994, Manitowoc sent a letter to Montonen outlining proposed terms for
the sale of one of its dealerships to him. Manitowoc believed the letter
to be a nonbinding general expression of intent, whereas Montonen
maintained that the letter was a binding and enforceable agreement.
Montonen came to Wisconsin with his attorney on April 30, 1996, to
meet with representatives of Manitowoc to discuss their disagreement
over the letter. Manitowoc filed this lawsuit against Montonen in
Wisconsin earlier that day. Manitowoc served Montonen with process at
the end of the meeting.
Montonen moved to set aside the service of process and asked the
circuit court to declare that it lacked jurisdiction over his person. He
argued that Manitowoc engaged in fraud and deceit by tricking or
enticing him to come to Wisconsin for settlement negotiations and then
serving him with process once he got here. The circuit court denied the
motion and the court of appeals affirmed.
In a unanimous decision authored by Justice Bradley, the supreme
court affirmed the court of appeals. Before the supreme court Montonen
asked that the fraud exception to the transient rule of personal
jurisdiction be expanded to prohibit service of a lawsuit on a person
who comes to Wisconsin for settlement negotiations. Personal
jurisdiction based only on physical presence within a state at the time
of service has been referred to as either "transient jurisdiction" or
the "transient rule" of personal jurisdiction. The transient rule is not
without exception. Where an individual is brought within a jurisdiction
by fraud or trickery, service will be set aside upon the proper
showing.
In this case Montonen conceded that he was unable to show actual
fraudulent intent and thus did not fall within the traditional fraud
exception. Nonetheless, he asked the supreme court to extend the fraud
exception by adopting a flat prohibition on service under the transient
rule during settlement negotiations. Alternatively, he sought expansion
of the fraud exception to require the quashing of service when a
plaintiff invites a defendant into Wisconsin for purposes of settlement
talks and fails to inform the defendant of the possibility of
service.
The supreme court concluded that the public policies at stake are
best served by the fraud exception as it presently stands, and it
declined to extend the exception as requested by Montonen. Wisconsin has
a definite interest in providing a forum where its citizens may seek
legal redress. Expanding immunity from service of process to cover
parties in settlement negotiations "may limit and obfuscate the
availability of a Wisconsin forum for Wisconsin litigants" (¶
30).
The court did not agree with Montonen that the fraud exception in its
present form significantly discourages settlement negotiations. As
technologies such as video conferencing become increasingly commonplace,
the benefits of face-to-face settlement negotiations may be realized
without an in-person meeting. Further, parties may agree ahead of time
that they will not attempt service during settlement negotiations.
Service in violation of such a safe harbor agreement would fall within
the traditional fraud exception as it is presently formulated.
Criminal Procedure
Rape Shield - Child's Sexual History - Expert Testimony
State v. Dunlap,
2002 WI 19 (filed 27 Feb. 2002)
The defendant was convicted of sexually assaulting a 6-year-old girl.
Since he was not apprehended until eight years later, the victim was
about 15 by the time of trial. Her testimony at trial conflicted with
statements she gave immediately following the assault as well as at the
preliminary hearing. The judge permitted the prosecution to call an
expert on child sexual abuse in order to explain how such trauma may
have affected the victim's perceptions and memories (so-called
Jensen evidence).
The defense sought unsuccessfully to introduce evidence about the
child's "seductive behavior," which included several bizarre
allegations, prior to the charged offense. The court of appeals reversed
the conviction based on the exclusion of the child's other sexual
conduct. It held that the state had "opened the door" to such evidence
when it introduced the expert testimony. The court of appeals found,
moreover, that the evidence was not barred by the hearsay rule or the
rape shield statute.
The supreme court, in an opinion written by Justice Wilcox, reversed
the court of appeals and reinstated the conviction. First, the court
found that the evidence was clearly excluded by Wisconsin's rape shield
statute because it entailed "sexual conduct" by the victim. Second, the
evidence did not fall within a statutory or "judicial" exception to the
rule. Most of the court's analysis was directed at the so-called
Pulizzano standard, a five-part test that permits limited use
of a victim's sexual history where necessary to protect the defendant's
constitutional right to present a defense. The court focused on one
particular element: "whether the acts sought to be admitted by the
defendant closely resemble those of the present case" (¶22). On
this record the court found insufficient similarity to meet this
criterion, categorically rejecting as unsuitably broad a defense
contention that the other acts and this case all involved sexual
touching (see ¶27).
Finally, the supreme court found that the state had not "opened the
door" by offering expert testimony on child sexual abuse victims. The
expert's testimony, which included a description of the victim's
"reporting behavior" after the attack, fell within the circle of
permissible evidence (¶39).
Justice Sykes filed a concurring opinion, writing separately to
emphasize that "the inapplicability of the curative admissibility
doctrine does not depend upon a conclusion that the investigator's
expert testimony was Jensen evidence" (¶43).
Credibility - Expert Testimony - Treatment Records
State v. Rizzo, 2002
WI 20 (filed 27 Feb. 2002)
The defendant was convicted of sexually assaulting the victim in 1995
and 1996. The victim first reported the assaults to police in 1997 after
receiving psychological treatment since 1996. The trial court denied
defendant's motion seeking access to the victim's treatment record based
on an in camera review. At trial the state called the victim's treating
psychologist, who offered expert testimony regarding the behavior of
sexual assault victims. The court of appeals reversed the conviction on
two grounds. First, the defendant was improperly denied access to the
treatment record. Second, the expert's testimony amounted to
"Jensen-type evidence," which in turn triggered the defendant's
right to have the victim examined by its own psychologist, a motion
denied by the trial court based on the state's pretrial representation
that it would not offer Jensen-type evidence at trial.
The supreme court, in an opinion written by Justice Bradley, reversed
the court of appeals and remanded for further proceedings. The court
first addressed whether the expert testimony, proffered by the state,
constituted Jensen-type evidence, which is admissible whenever
it would be "useful for disabusing the jury of common misconceptions
about the behavior of sexual assault victims" (¶12). Agreeing with
the court of appeals, the supreme court held that the prosecution had
indeed offered Jensen-type evidence despite its denials to the
contrary. The expert compared the victim's behavior "and the common
behavior of sexual assault victims" (¶21). In particular, the
prosecutor solicited the expert's opinion "as to what someone would do
`under these circumstances' and `in this position'" (¶22).
The court next addressed whether the expert testimony fell within the
scope of the rule announced in State v. Maday, which permits
defense experts to conduct psychological examinations of victims where
certain circumstances are present. Not all expert psychological
testimony implicates Maday. For this reason, the court
addressed when the defendant's rights under Maday are
triggered: "While we do not purport to set forth a bright line rule that
will prove definitive in every case, the distinction between a
psychological expert that triggers Maday and one that does not
will depend in part on the extent and nature of the contact between the
expert and the complaint" (¶31). More to the point: "If the state
is to introduce Jensen evidence through a psychological expert
who has become familiar with the complainant through ongoing treatment,
or through an intensive interview or examination focused on the alleged
sexual assault, the defendant must have the opportunity to show a need
to meet that evidence through a psychological expert of its own"
(¶32). Based on the expert's testimony in this case, the court
found that Maday had been "triggered," regardless of whether
the state itself, as opposed to the victim, had compensated or
reimbursed the expert's time and expenses.
Although the nature of the expert's testimony entitled the defendant
to a Maday hearing, it did not automatically follow that the
victim must submit to a psychological examination. Such examinations are
appropriate only where a "compelling need" is demonstrated. Rejecting
the state's invitation to conduct a harmless error analysis, the supreme
court remanded the case for a hearing on whether the examination should
be compelled.
Finally, the record adequately supported the judge's determination
that the defendant was not entitled to the victim's confidential
treatment records under the so-called Shiffra procedures. The
defendant sought the victim's records primarily to impeach her
therapist's credibility; the expert's Jensen-type testimony did
not, however, "open the door" to this line of impeachment.
Justice Sykes concurred and wrote separately to distinguish between
different types of Jensen evidence. Testimony that describes
"the victim's post-assault psychological condition" might trigger
Maday, unlike expert testimony that describes and compares the
particular victim's reactive behavior to that of sexual assault victims
generally" (¶70).
Wisconsin Lawyer
