Wisconsin Lawyer
Vol. 75, No. 8, August 2002

Supreme Court Digest

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

Child Abuse Civil Procedure Constitutional Law Insurance Property Sexually Violent Persons Wisconsin Open Housing Act

Criminal Procedure Criminal Law Employment Law Open Records Law Property Taxation Torts Worker's Compensation

Child Abuse

Criminal Penalty for the Unauthorized Disclosure of Confidential Information Relating to Reports of Suspected Child Abuse or Neglect - Elements of Wis. Stat. Section 48.981(7)

State v. Polashek, 2002 WI 74 (filed 26 June 2002)

This case involves a prosecution under Wis. Stat. section 48.981(7), a law that provides a criminal penalty for the unauthorized disclosure of confidential information relating to reports of suspected child abuse or neglect. At issue are the elements of this crime.

The court of appeals held that when the state charges a defendant with violating section 48.981(7), the state is not required to prove that the recipient of the confidential information had no prior knowledge of the information. The appellate court further concluded that the state is not required to prove the defendant's mental state because the statute creates a strict liability offense.

In a majority decision authored by Justice Wilcox, the supreme court affirmed in part and reversed in part. Disagreeing with the court of appeals, it held that disclosure within the meaning of the statute requires proof that the recipient did not have knowledge of the information communicated. Information cannot be "disclosed" to a recipient who already knows the information communicated. For information to be "disclosed" within the meaning of the statute, "the recipient must have been previously unaware of the information at the time of the communication" (¶ 23). Because the disclosure of confidential information is an element of the crime, the state has the burden to prove it beyond a reasonable doubt.

Lastly, the court considered whether the statute under which the defendant was prosecuted (section 48.981(7)(f)) is a strict liability statute. It agreed with the court of appeals that the legislature intended to create a strict liability offense when it enacted this statutory provision.

Justice Crooks filed a dissenting opinion.

Civil Procedure

Pleadings - Untimely Filing - Sanctions - Default Judgment

Split Rock Hardwoods Inc. v. Lumber Liquidators Inc., 2002 WI 66 (filed 21 June 2002)

The plaintiff filed and served a summons and complaint that alleged that the defendant failed to pay for inventory that had been delivered. By courtesy agreement, the defendant was given until Dec. 22, 1999, to answer the complaint. On Dec. 21 the defendant served its answer on the plaintiff, but it did not file the answer with the court until 45 days later, after the court informed the plaintiff that no answer had been filed. The circuit court granted the plaintiff's motion to strike the answer and granted default judgment in the plaintiff's favor. The court of appeals certified the case to the supreme court.

The supreme court, in an opinion written by Justice Prosser, reversed and remanded the case for further proceedings. The opinion addressed four principal issues concerning Wisconsin civil procedure. First, the court addressed the requirement that an answer be filed with the court within a "reasonable time after service," as provided by Wis. Stat. section 801.14(4). Filing constitutes "certification" that "all necessary parties have been timely served" (¶23). The rule also "encourages prompt filing of papers with the court" because this "is the surest way to inform the court of the status of pending litigation" (¶25). In determining the reasonableness of the time between serving and filing an answer, a court should consider the length of elapsed time and any pertinent factual circumstances that explain the delay, such as the need for verification of service. "If no such factors are present, the court should consider whether the answer was filed within 45 days after service of the complaint - the statutory time limit for answering the complaint." Last, a court should "consider whether the time period between service and filing is too insignificant to warrant any sanction" (¶26). Prejudice should not be weighed at this stage of the analysis.

Second, when considering a remedy for late filing, "a circuit court may strike an answer if the answer is not filed within a reasonable time after service - but only in those circumstances in which the circuit court, exercising sound discretion, may enter default judgment" (¶39).

Third, the court addressed the criteria to be applied in striking an answer and granting a default judgment (the court assumed without deciding that the defendant's timely service, absent filing, failed to "join issue" as required by Wis. Stat. section 806.02). Following "sound" federal practice, the court held that "a plaintiff should not move to strike an answer that is not filed `within a reasonable time after service' unless the plaintiff is prepared to show prejudice to itself or to the court. Offering less-compelling grounds to strike an answer in this situation is an attempt to secure a judicial sanction that is disproportionate to the defendant's error" (¶53). (In these "less compelling" situations, an aggrieved plaintiff may ask for other sanctions, for example, attorney fees.) When confronted with a proper motion to strike, a defendant should "file the answer and then move to enlarge time under Wis. Stat. § 802.01(2)," which then permits the trial court to weigh the facts, equities, and policies at issue (¶55).

Fourth, in appropriate cases, the trial court may grant a default judgment if "a defendant's failure to file an answer with the court within a reasonable time after service is unreasonable, unexplained, and prejudicial to the plaintiff or the court" (¶60).

Applying these principles to the record in this case, the supreme court held that the circuit court had failed to set forth the basis for its exercise of discretion; thus, the default judgment could not stand. The matter was remanded for further proceedings.

Justice Wilcox, joined by Justice Crooks, dissented on the ground that the trial judge had appropriately exercised his discretion.

Constitutional Law

State Constitutional Amendments - Effective Date

State v. Gonzales, 2002 WI 59 (filed 13 June 2002)

Gonzales was convicted of carrying a concealed weapon, contrary to Wis. Stat. section 941.23. His sole claim on appeal was that he had a constitutional right to go armed, pursuant to Article I, Section 25 of the Wisconsin Constitution. The supreme court, in an opinion written by Chief Justice Abrahamson, unanimously concluded that Article I, Section 25 was not in effect on the day that the defendant committed the crime; thus, he could not assert his purported constitutional right to go armed. The crime occurred on Nov. 6, 1998. Although 74 percent of the voters ratified this constitutional amendment on Nov. 3, 1998, the State Elections Board did not certify the result until Nov. 30, 1998.

In a case of first impression, the court considered the effective date of constitutional amendments. It held that "unless a constitutional amendment provides otherwise, it takes effect upon the certification of the statewide canvass of the votes as provided in Wis. Stat.

§ 7.70(3)(h)" (¶25). First, section 7.70(3)(h) was a valid exercise of legislative power pursuant to Article XII, Section 1 of the Wisconsin Constitution. Second, "the state constitution gives the legislature broad powers for submitting the constitutional amendment to the people" (¶27). Third, "as a practical matter a canvass of the vote upon an amendment is necessary to ascertain the result of the election" (¶28).

Criminal Law

Attempted Child Enticement - Internet Communications - Police "Sting" Operations

State v. Robins, 2002 WI 65 (filed 21 June 2002)

The defendant allegedly engaged in sexually explicit online "chats" and emails with a person he thought was a 13-year-old boy for the express purpose of illegally soliciting the boy for sex. He arranged a meeting time and place to effectuate that purpose and then traveled to the agreed upon meeting place, where he was arrested by police. The "13-year-old boy" was really an agent of the Wisconsin Department of Justice.

The defendant was charged with attempted child enticement contrary to Wis. Stat. section 948.07. In this interlocutory appeal, the primary issue was whether the child enticement statute is violated when there is no actual child victim but, instead, an adult government agent posing online as a child. In a unanimous decision authored by Justice Sykes, the supreme court concluded that an attempted child enticement under section 948.07 may be charged when the intervening extraneous factor that makes the offense an attempted rather than a completed crime is the fact that, unbeknownst to the defendant, the "victim" is not a child at all, but an adult posing as a child.

The defendant also raised a First Amendment challenge to the statute as applied to child enticements initiated over the Internet. The court concluded that the First Amendment is not implicated by the application of the child enticement statute to enticements initiated over the Internet, because the statute regulates conduct, not speech. "The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places, away from the protection of the general public, for illicit sexual or other improper purposes. That an act of child enticement is initiated or carried out in part by means of language does not make the child enticement statute susceptible of First Amendment scrutiny" (¶ 43). "Simply put, the First Amendment does not protect child enticements, whether initiated over the Internet or otherwise" (¶ 44).

Criminal Procedure

Expungement of Record of Conviction - Information in District Attorney and Police Files - Consideration of "Facts" Underlying Expunged Conviction at Sentencing in Unrelated Case

State v. Leitner, 2002 WI 77 (filed 26 June 2002)

Wis. Stat. section 973.015 authorizes the expunction of the record of a misdemeanor conviction if a person is under age 21 when the offense is committed and if the circuit court determines that the person will benefit and society will not be harmed by this disposition. The statute is silent, however, as to whether the records to be expunged are records of courts, district attorneys, or law enforcement agencies.

In this case, the supreme court unanimously concluded that the purpose of the statute is accomplished by interpreting it to refer only to court records. Writing for the court, Chief Justice Abrahamson explained that "expunction of a court record of a conviction enables an offender to have a clean start as far as the prior conviction is concerned" (¶ 39). Expunging the court record provides substantial advantages to the offender. For example, an expunged conviction record cannot be considered at a subsequent sentencing, cannot be used for impeachment at trial under section 906.09(1), and cannot form the basis for a habitual criminal enhancement in subsequent criminal prosecutions.

However, the court was not persuaded that the legislature intended section 973.015 to authorize expunction of anything more than court records. Specifically, it does not require district attorneys and law enforcement agencies to expunge their records documenting the facts underlying an expunged conviction record. District attorneys and law enforcement agencies have significant ongoing interests in maintaining case information, even when a court record of a conviction has been expunged. "Case information may assist in identifying suspects, determining whether a suspect might present a threat to officer safety, investigating and solving similar crimes, anticipating and disrupting future criminal actions, informing decisions about arrest or pressing charges, making decisions about bail and pre-trial release, making decisions about repeater charges, and making recommendations about sentencing" (¶ 40).

Finally, the court held that, when sentencing an offender, a circuit judge may consider the facts underlying a conviction for which the record has been expunged. "It is clear that the legislature did not intend section 973.015 to deprive sentencing courts of relevant information regarding an offender when that information is in government files relating to a record of conviction expunged under section 973.015" (¶ 47).

John Doe Proceedings - Questioning of Witness by a Police Officer - Suppression Not an Appropriate Remedy

State v. Noble, 2002 WI 64 (filed 21 June 2002)

The defendant was subpoenaed to testify at a John Doe proceeding. The presiding judge permitted a police officer who was not licensed to practice law to question the defendant. That testimony later formed the basis for a perjury prosecution against the defendant.

In the perjury case, the defendant moved to suppress the transcript of her testimony at the John Doe proceeding and to dismiss the complaint against her with prejudice. She claimed that the state conducted the proceeding in an illegal manner because she was questioned by someone who was not licensed to practice law. The circuit court denied the motion and the defendant was convicted.

The court of appeals reversed. It concluded that the police officer who questioned the defendant at the John Doe proceeding had engaged in the unlawful practice of law contrary to Wis. Stat. section 757.30 and that the judge should not have permitted such conduct. The appellate court further concluded that the proper sanction for this illegality is exclusion of the witness's John Doe testimony in subsequent criminal proceedings against her.

In a majority decision authored by Justice Bablitch, the supreme court reversed the court of appeals. It held that the suppression of the defendant's John Doe testimony from use at her perjury trial was not required in this case. "It is not required because [the officer's] examination of [the defendant] during the John Doe proceeding did not amount to either a constitutional violation or a statutory violation for which suppression is provided as a remedy" (¶13).

Justice Prosser filed a concurring opinion that was joined by Justice Sykes.

Chief Justice Abrahamson filed a dissenting opinion.

Shiffra Procedures - Sequestration Orders

State v. Green, 2002 WI 68 (filed 25 June 2002)

A jury convicted Green of sexually assaulting a child under the age of 13. On appeal Green raised two claims: 1) the circuit court erred by failing to conduct an in camera review of the victim's counseling records; and 2) the prosecutor violated a sequestration order by speaking with a witness in a hallway. The court of appeals affirmed the conviction.

The supreme court, in an opinion written by Justice Bablitch, affirmed the court of appeals. Of primary significance, the court set forth the standard that governs entitlement of defendants to an in camera review of a victim's privileged records: "the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant." Such information "will be `necessary to a determination of guilt or innocence' if it `tends to create a reasonable doubt that might not otherwise exist.' This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense" (¶34). On this record the trial court did not abuse its discretion in refusing to conduct an in camera review.

Green also argued that the prosecutor violated the sequestration order when she spoke with a witness in the hallway during a break in testimony. The witness had testified several different times, and in several different ways, regarding her recollection of an allegedly incriminating remark by Green. The court held, however, that the conversation did not violate the sequestration order - there was no allegation that the witness heard other witnesses testify or had spoken to such other witnesses - and, in any event, the incident produced no discernable prejudice. A concurring opinion by Chief Justice Abrahamson, joined by Justice Crooks, urged trial judges to word orders that exclude or sequester witnesses "with particularity to avoid misunderstandings" (¶44).

No Contest Pleas - Deportation Warnings

State v. Douangmala, 2002 WI 62 (filed 19 June 2002)

The defendant, a Laotian native who was not a U.S. citizen, was charged with various criminal offenses, including felonies. He later pleaded no contest to burglary, robbery, and false imprisonment and was sentenced to consecutive prison terms. After conviction, he was ordered to appear at a deportation hearing and subsequently was ordered deported based on his no contest plea and convictions. The defendant filed a motion to withdraw the no contest plea, which was denied. Several appeals were taken. Ultimately, the court of appeals held that there was sufficient evidence to support the finding that the defendant knew of the deportation consequences when he pleaded no contest.

The supreme court, in an opinion written by Chief Justice Abrahamson, reversed and remanded. The following issue was determinative: "If a circuit court fails to give the deportation warning required by Wis. Stat. section 971.08(1)(c) (1999-2000), when accepting a guilty or no contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?" (¶ 17). The circuit court failed to comply with section 971.08(1)(c) because the judge failed to address the defendant personally to advise him of the deportation consequences of the plea (¶ 20). Moreover, the defendant complied with all three conditions set forth in Wis. Stat. section 971.08(2), which governs the withdrawal of pleas upon a court's failure to advise properly of a plea's deportation consequences (¶ 25). Finally, the supreme court held that the harmless error rule, Wis. Stat. section 971.26, did not apply to section 971.08(1)(c) and (2). Accordingly, the supreme court overruled a line of court of appeals decisions that had reached a contrary conclusion (the citations are set forth at ¶ 42).

Employment Law

Discharge of Employees-at-will - Public Policy Exception - Termination of Employee in Retaliation for Actions of Employee's Spouse

Bammert v. Don's Super Valu Inc., 2002 WI 85 (filed 3 July 2002)

Karen Bammert worked as an employee-at-will at Don's Super Valu for approximately 26 years. Her husband is a police officer. Don's is owned by Don Williams, whose wife, Nona, was arrested for drunk driving. Bammert's husband participated in the drunk driving field investigation by administering to Nona a portable breath test, which she failed. Karen Bammert was thereafter fired by Don's, allegedly in retaliation for her husband's participation in the arrest as described above.

The issue before the supreme court was whether the public policy exception to the employment-at-will doctrine can be invoked when an at-will employee is fired in retaliation for the actions of his or her nonemployee spouse. In a decision authored by Justice Sykes, a majority of the supreme court answered in the negative.

In general, at-will employees are terminable at will, for any reason, without cause and with no judicial remedy. Whether Karen Bammert has an actionable claim for wrongful discharge turns on the question of whether the public policy exception to the employment-at-will doctrine can be extended to a retaliatory discharge based upon the conduct of a nonemployee spouse.

The public policy exception to the employment-at-will doctrine is a narrow exception that allows at-will employees to sue for wrongful discharge if they are fired for fulfilling, or refusing to violate, a fundamental, well-defined public policy or an affirmative legal obligation established by existing law. "It has never been extended to terminations in retaliation for conduct outside the employment relationship; neither has it been applied to terminations in retaliation for the conduct of someone other than the terminated employee. To allow it here would therefore expand the exception beyond its present boundaries in two significant and unprecedented ways, with no logical limiting principles" (¶ 3).

Therefore, the majority declined to recognize a cause of action for wrongful discharge under the public policy exception to the employment-at-will doctrine for terminations in retaliation for the conduct of a nonemployee spouse.

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

Insurance

Subrogation - "Made-whole" Doctrine

Ruckel v. Gassner, 2002 WI 67 (filed 21 June 2002)

This case concerns the applicability of the "made-whole" doctrine when a subrogated insurer relies on contract language that explicitly waives the insured's right to be "made whole" before the subrogated insurer receives reimbursement. The defendant shot the plaintiff in the knee while recklessly mishandling a firearm. The trial court entered a default judgment against the defendant and ultimately determined damages to be about $460,000. It also ordered that Humana, which had paid about $87,000 in medical expenses, was not entitled to payment until the plaintiff had been made whole. The court's ruling negated unambiguous policy language that otherwise entitled Humana to be reimbursed for paid-out medical expenses before its insured, the plaintiff, received a dime.

The supreme court, in an opinion written by Justice Prosser, unanimously affirmed the circuit court. The case presented the opportunity to "clarify any perceived inconsistency" between Garrity v. Rural Mutual Insurance Co., 77 Wis. 2d 537 (1977), and Rimes v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263 (1982).

In carefully reviewing the basic principles of subrogation law, the court found it "unfortunate" that Garrity had suggested that contrary language in a policy might have signaled a different outcome. Nonetheless, Rimes later clarified that the made-whole principle applies to contractual as well as equitable subrogation. In sum, the clear import of Garrity and Rimes is that "[n]otwithstanding a specific unambiguous subrogation clause in the Humana-administered group benefit plan that gave the plan superior rights of subrogation over [the insured's] right to be made whole, the plan may not recover any of the [$87,000] in medical expenses it paid out until [the insured] has been made whole" (¶40). The case did not permit the court to resolve the "sticky issues" raised when the insured contributes to his or her own loss, or when the insured settles for an amount less than the total damages without involving the subrogated carrier.

Open Records Law

Information about Applicants to State Universities - FERPA - Redaction of Certain Information

Osborn v. Board of Regents of the University of Wisconsin System, 2002 WI 83 (filed 2 July 2002)

This case concerns whether the University of Wisconsin must provide documents in response to open records requests submitted by the plaintiffs. Those requests sought information from records of applicants to certain U.W. campuses and two of its professional schools. Essentially, the plaintiffs sought information about test scores, class rank, grade point average, race, gender, ethnicity, and socioeconomic background of applicants for admission. They did not request names, addresses, or other personal identifiers such as Social Security numbers.

The supreme court first confronted whether the Family Educational Rights and Privacy Act of 1974 (FERPA) prohibits disclosure of the requested information in this case. In a unanimous decision authored by Justice Crooks, the supreme court concluded that FERPA prohibits nonconsensual disclosure of personally identifiable information contained within education records. It does not prohibit disclosure of all information contained in such records. Only if the open records request seeks information that would make a student's identity traceable, may a custodian of those records rely on FERPA to deny the request on the basis that it seeks personally identifiable information. Here, the court concluded that the plaintiffs were not requesting personally identifiable information. The minimal information requested by the plaintiffs is not sufficient by itself to trace the identity of an applicant. The court further concluded that there is no overriding public interest in keeping the requested records confidential.

The university also sought to deny the plaintiffs' open records request by arguing that compliance would require it to essentially create a new record, which is not required under the open records law. Specifically, the university claimed that the requested information regarding test scores, grade point averages, and so on, is maintained only in the individual records of applicants. The court responded that the open records statute does not require the custodian to create a new record by extracting information from existing records and compiling the information in a new format. However, the custodian does have a statutory duty to delete or redact from the records information that is not subject to disclosure: "We conclude that the statute requires the custodian to provide the information subject to disclosure and delete or redact the information that is not" (¶ 45).

Finally, the court noted that, under the open records law, the university is not required to bear by itself the cost of producing documents in response to the plaintiffs' request. The university is entitled to charge a fee for the actual, necessary, and direct cost of complying with the plaintiffs' open records request.

Chief Justice Abrahamson did not participate in this decision.

Property

Homestead Protection - Premarital Agreements - Marital Property - Waivers

Jones v. Estate of Jones, 2002 WI 61 (filed 18 June 2002)

In a case of first impression, the supreme court, in an opinion written by Justice Crooks, held that homestead protection can be waived pursuant to a premarital agreement. In 1978 Robert and Mary Ann signed a prenuptial agreement that stated, in part, "that each party shall hold his or her solely owned property `free from all rights or claims therein by the other'" (¶1). Robert owned the home where they resided. In 1998 Robert deeded the home to Mary Ann, who deeded the home to Robert's sons the same day. After Robert died, Mary Ann sought to declare the second deed (to her stepsons) invalid. The supreme court affirmed the circuit court's order denying Mary Ann's motion seeking to declare the second deed invalid (albeit on different grounds).

The supreme court first held that the home constituted homestead property, as provided by Wis. Stat. section 706.01(7). It then turned to the issue of first impression: "whether spouses can waive the homestead protection in a premarital agreement" (¶11). Although the 1978 premarital agreement predated Wisconsin's Marital Property Act, thus rendering the agreement enforceable irrespective of the Act, the supreme court nonetheless discussed the Act "because this decision will undoubtedly influence future decisions regarding a premarital agreement governed by the Act" (¶13).

Relying on case law, which "favors" premarital agreements, and statutory language, the court held that "spouses can validly waive the homestead protection by affirmatively entering into a premarital agreement" (¶17). This conclusion was, moreover, "consistent with the purpose of the homestead protection" against "unilateral action by one spouse to the detriment of the other." Such agreements contemplate spouses who in fact "agree" and make "collaborative decisions regarding their possession and conveyance of property" (¶18). Examining the record, the supreme court found that the premarital agreement in question satisfied the waiver standards.

Property Taxation

Agricultural Land - Conversion from Market-value to Use-value Assessment

Mallo v. Wisconsin Department of Revenue, 2002 WI 70 (filed 25 June 2002)

Prior to Jan. 1, 1996, agricultural land was assessed the same as all real property: at its fair market value based on its highest and best use. In 1995 the legislature enacted Wis. Stat. section 70.32(2r) to change the manner of value assessment of agricultural land for taxation purposes from market-value assessment to use-value assessment. Under market-value assessment, land is valued at the full value that ordinarily could be obtained therefor at private sale. Under use-value assessment, agricultural land is valued according to the income that could be generated from its rental for agricultural use.

Section 70.32(2r) provides for the transition from market-value assessment to occur in three stages. Following a "freeze" stage in 1996 and 1997 during which assessments were frozen at the 1995 assessed value, a phase-in or mixed-use assessment stage was to follow and conclude by no later than Dec. 31, 2008, following which the transition to use-value assessment would be completed.

The Department of Revenue (DOR) promulgated an emergency rule and then a permanent administrative rule implementing full use-value assessment as of January 2000. The plaintiffs filed this lawsuit challenging the validity of these administrative rules, contending that the DOR exceeded its authority by truncating what they argued was a mandatory 10-year phase-in or mixed-use assessment period. The circuit court granted summary judgment in favor of the DOR and the court of appeals certified the plaintiffs' appeal to the supreme court.

In a decision authored by Justice Crooks, the supreme court affirmed the decision of the circuit court. After examining the plain language of the statute, the court concluded that section 70.32 is unambiguous and gives the DOR authority to promulgate an administrative rule (Wis. Admin. Code section TAX 18.08), which provides for the valuation of agricultural land for taxation purposes based on its use value, effective Jan. 1, 2000. The court further concluded that the administrative rule is consistent with the plain language of section 70.32.

Justices Wilcox and Prosser did not participate in this decision.

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

Agricultural Land - Conversion from Market-value to Use-value Assessment

Norquist v. Zeuske, 2002 WI 69 (filed 29 June 2002)

This case concerns the constitutionality of Wis. Stat. section 70.32(2r), which changes the manner of value assessment of agricultural land for property taxation purposes from market-value assessment to use-value assessment. At oral argument before the supreme court, counsel for the plaintiffs noted that the plaintiffs sought only prospective relief in this lawsuit and conceded that this case would be moot if the supreme court upholds DOR regulations implementing section 70.32(2r) by providing for use-value assessment of agricultural land as of Jan. 1, 2000.

The validity of the DOR regulations was the issue in Mallo v. Wisconsin Department of Revenue, 2002 WI 70, which is summarized above. In Mallo the supreme court upheld the validity of the DOR regulations. Accordingly, in this case the supreme court followed the concession of plaintiffs' counsel and dismissed the lawsuit as moot.

Justice Prosser did not participate in this decision.

Sexually Violent Persons

Revocation of Supervised Release - Alternatives to Revocation

State v. Keding, 2002 WI 86 (filed 3 July 2002)

This case was before the Wisconsin Supreme Court on certification from the court of appeals. The certified question was whether the circuit court is required to consider alternatives to revocation when a proceeding is brought to revoke the supervised release of a person committed under the sexual predator statute. See Wis. Stat. ch. 980.

The supreme court was evenly split on the answer to the certified question. Chief Justice Abrahamson and Justices Bablitch and Bradley would answer in the affirmative; Justices Wilcox, Crooks, and Sykes would respond in the negative. Justice Prosser did not participate.

Despite the tie vote on the legal issue presented, the supreme court nevertheless affirmed the circuit court's order revoking the defendant's supervised release, because four members of the court agreed that the circuit court in this case did in fact inquire about whether there were any alternatives to revocation, and was advised that there were none before it revoked the defendant's supervised release.

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.

Torts

Helmet Defense - ATVs

Stehlik v. Rhoads, 2002 WI 73 (filed 26 June 2002)

The plaintiff, an adult, sustained a severe head injury while riding an ATV provided by his social hosts at a party. Although he drove the ATV with their permission, he also had been drinking alcohol provided at the party and was riding without a helmet. A jury concluded that the plaintiff was 30 percent causally negligent and the social hosts were 70 percent causally negligent for the accident itself. The judge also instructed the jury to determine any negligence that may have occurred with respect to the plaintiff's failure to wear a helmet; the jury found the plaintiff 40 percent negligent and the social hosts 60 percent negligent on this issue. Finally, the jury concluded that 90 percent of the plaintiff's injuries were attributable to his failure to wear a helmet.

In postverdict proceedings, the judge struck the special verdict answer relating to the separate "helmet negligence." Instead, the court reduced the jury's damage findings by 30 percent, which represented the plaintiff's contributory negligence, and then by a further 90 percent to reflect the percentage of injury assigned to his failure to wear the helmet. The court of appeals certified this case to the supreme court, where the case posed two central issues: 1) Is the "helmet defense" subject to the same principles as the "seat belt defense," and, if so, should those principles be modified for the helmet defense; and 2) Can an ATV owner be liable for failing to require adult users of an ATV to wear a safety helmet?

The supreme court, in an opinion written by Justice Sykes, reversed and remanded. The same common law duty of ordinary care that justifies the seat belt defense also applies to the "helmet defense," although neither omission is negligence per se (¶¶28-29). Nonetheless, the court modified the "second collision" analysis set forth in Foley v. City of West Allis, 113 Wis. 2d 475 (1983), because its unadulterated application to the helmet-defense scenario was "inconsistent with a liability system based upon the idea of comparative responsibility" (¶44).

For the reader's convenience, the procedures are quoted in full: "[T]he jury in a helmet defense case such as this should initially be asked to determine whether each of the parties was negligent with respect to the accident, and if so, whether each party's `accident negligence' was a cause of injury or damage to the plaintiff. The jury should then apportion the accident negligence among the parties found to be negligent with respect to the accident, assuming total accident negligence to be 100 percent. The plaintiff's recovery will be reduced or barred under Wis. Stat. § 895.045 depending upon the result of this comparison. The jury should then be asked if a helmet was available for the plaintiff's use, and, if so, whether the plaintiff was negligent in failing to wear a helmet. If the jury answers these questions in the affirmative, it should then decide whether the plaintiff's `helmet negligence' was a cause of his or her injuries or damages. If the jury finds the plaintiff causally negligent with respect to helmet nonuse, it should then be asked to compare the plaintiff's helmet negligence as against the total combined negligence of the defendants, as follows: `Assuming the total of the plaintiff's helmet negligence and the combined negligence of the defendant(s) to be 100%, what percentage do you attribute to: 1) the plaintiff's helmet negligence; and 2) the combined negligence of the defendant(s)?' This last comparison is not subject to the Wis. Stat. § 895.045 bar to recovery if the plaintiff's helmet negligence percentage exceeds the defendant(s)' combined negligence percentage. Under Foley, seat belt/helmet negligence operates only to reduce damages, not bar recovery" (note omitted) (¶46).

The supreme court reversed the trial court because it had followed the unalloyed Foley approach to the helmet defense. Finally, for reasons of public policy the court held that "an ATV owner cannot be liable for failing to require an adult user of the ATV to wear an available safety helmet" (¶58).

Chief Justice Abrahamson concurred but wrote separately. Although the "attempt to correct the flaw in Foley is a step in the right direction," she questioned whether the majority's solution would "work as a practical matter."

Justice Crooks dissented on the ground that the seat belt and helmet defenses are analogous and that the Foley methodology should apply to both.

Wisconsin Open Housing Act

Discrimination Based on "Perception" of a Disability

Kitten v. Wisconsin Department of Workforce Development, 2002 WI 54 (filed 24 May 2002)

Spencer Cenname tried to rent an apartment from Kitten. When Kitten found out that Cenname previously had been hospitalized for the eating disorder bulimia nervosa, Kitten became concerned that Cenname would either attempt suicide or be rehospitalized and therefore be unable to pay the rent. As a result, Kitten sought an advance payment of six months' rent from Cenname, as opposed to the normal one month's rent and a security deposit.

Cenname filed a complaint with the Equal Rights Division of the Department of Workforce Development claiming that Kitten had discriminated against him on the basis of disability. The hearing examiner determined that there was not enough evidence to conclude that Cenname had an actual disability under the Wisconsin Open Housing Act (WOHA), but that there was sufficient evidence to show that Kitten regarded Cenname's eating disorder as one that substantially limited the latter's major life functions. The examiner concluded that this qualified as a disability under the WOHA.

The circuit court and the court of appeals affirmed the conclusions of the hearing examiner. On review, the supreme court unanimously affirmed in a decision authored by Justice Wilcox. It concluded that the hearing examiner correctly decided that Kitten's perceptions of Cenname qualified as a disability under the WOHA and that Kitten discriminated against Cenname on the basis of that perceived disability.

"To establish a disability within the meaning of the [WOHA], the complainant must show (1) that he or she has an actual impairment, a record of impairment, or is regarded as having an impairment; and (2) the impairment, whether real or perceived, is one that substantially limits one or more major life activities, or is regarded by the respondent to substantially limit one or more major life activities. If the complainant is able to prove both of these elements, the complainant will have demonstrated a disability under the WOHA" (¶ 46).

In this case the court thought that there was little question that Kitten perceived that Cenname had an impairment and that Kitten's perceptions did rise to the level at which, if taken as true, Cenname's major life activities would have been limited. Kitten thought that Cenname's eating disorder would impair the latter's ability to function to the point where he would not be able to live on his own. Kitten further perceived that Cenname would become severely depressed to the point of being suicidal, a situation that undoubtedly would limit Cenname's ability to perform day-to-day activities.

Finally, the court thought that there was more than sufficient evidence in the record for the hearing examiner to have found that Kitten discriminated against Cenname based on the perceived disability in this case. Kitten sought six months' advance rent from Cenname as opposed to the normal one month's rent and a security deposit.

Worker's Compensation

Judicial Review - Certiorari

Vidal v. LIRC, 2002 WI 72 (filed 25 June 2002)

The court of appeals certified the following issue to the Wisconsin Supreme Court: "whether common law certiorari may be utilized in this case to obtain judicial review of two LIRC orders - which collectively set aside and remanded a compensation order - when it is alleged that LIRC failed to properly issue these orders within the time limitations set by statute" (¶14).

The supreme court, in an opinion written by Justice Bablitch, held that judicial review is available only from an order or award granting or denying compensation, as provided by Wis. Stat. section 102.23(1)(a) (1999-2000). Thus, judicial review by common law certiorari was not available in this case because the employer was not foreclosed from obtaining future judicial review of its claim that LIRC failed to act within the statutory time limits, a claim that may be reviewed "in a circuit court action seeking judicial review of any subsequent order or award granting or denying compensation in this case" (¶2). In addition to the statute, the court relied on Schneider Fuel & Supply Co. v. Industrial Commission, 224 Wis. 298 (1937), and overruled any language to the contrary in Berg v. Industrial Commission, 236 Wis. 172 (1940) (¶20). These procedures, said the court, permit the review of issues in a timely manner and "preserve[s] judicial economy by allowing these issues to be determined only after an order or award granting or denying compensation is issued" (¶27).

Wisconsin Lawyer