Vol. 75, No. 9, September 2002

Supreme Court Digest

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

Attorney Fees Civil Procedure Contracts Criminal Procedure Insurance Juvenile Law Mental Commitments

Motor Vehicle Law Open Records Law Protective Placement Sexually Violent Persons Torts Unfair Competition

Attorney Fees

Frivolous Actions - Award of Attorney Fees

Jackson v. Benson, 2002 WI 90 (filed 9 July 2002)

In Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), the supreme court upheld the constitutionality of Wisconsin's amended Milwaukee Parental Choice Program. More than three years later, four of the original 29 plaintiffs in the case moved the supreme court to vacate its 1998 decision. The court dismissed the motion, finding it to be untimely and frivolous as a matter of law. See Jackson v. Benson, 2002 WI 14. The supreme court remanded the matter to the circuit court for a determination of the amount of reasonable attorney fees and costs.

Thereafter, a motion was brought for reconsideration of the 2002 decision finding frivolousness and remanding for a determination of reasonable attorney fees and costs. In a per curiam decision, the supreme court denied the motion. The court noted that four of its five members who sat on this case joined in the finding of frivolousness and the award of fees. Further, with respect to those fees, the court noted that the statutes dealing with frivolousness speak in mandatory terms with regard to the award of reasonable attorney fees. See Wis. Stat. §§ 809.25(3)(a), 814.025(1). "Every single reported case in the last 20 years involving a finding of frivolousness has resulted in the award of attorney fees and costs. We have searched for any case involving a finding of frivolousness in which attorney fees and costs were not awarded. We have found none" (¶ 6).

The court did grant a motion to modify the sanctions order to remove certain plaintiffs-respondents from any obligation to pay sanctions.

Justices Wilcox, Bradley, and Sykes did not participate. Chief Justice Abrahamson filed a dissent.

Civil Procedure

Medical Malpractice Actions - Mediation Period - Sanctions

Ocasio v. Froedtert Memorial Lutheran Hosp., 2002 WI 89 (filed 3 July 2002)

In October 1999 the plaintiff, Ocasio, requested mediation of her medical malpractice claim as required by Wis. Stat. chapter 655. Section 655.44(5) provides that no court action may be commenced until the expiration of the mediation period (90 days). Nonetheless, about 10 days later Ocasio filed a summons and complaint in circuit court, in violation of section 655.44(5). Sometime after the statute of limitation expired in February 2000, the defendants moved to dismiss the medical malpractice action based on the plaintiff's failure to comply with chapter 655. The circuit court dismissed the complaint and the court of appeals affirmed.

The supreme court, in a decision written by Justice Bradley, reversed. The court addressed the following question: Must a circuit court "dismiss an action when a chapter 655 claimant fails to comply with the provision in section 655.44(5) stating that no court action may be commenced until the expiration of the mediation period under section 655.465(7)"? (¶11).

Without question, Ocasio had violated the statute, but the court held that dismissal was not the automatic or sole remedy. Prior cases had stressed the "informal, flexible procedures" for mediation in chapter 655, a scheme manifestly "inconsistent" with mandatory dismissals. The court found that the legislature had not clearly intended such a drastic remedy. Moreover, mandatory dismissals "would promote game playing rather than an informal, flexible procedure for dispute resolution" (¶22). The record in this case showed that the defendants had not raised the purportedly fatal omission until after the running of the statute of limitation (¶24). In sum, the circuit court had discretion to determine what, if any, sanction was appropriate for the plaintiff's failure to follow the statute. "The sanction may range from no sanction to dismissal in the most egregious cases" (¶25).

Justice Crooks, joined by Justice Sykes, dissented. They concluded that Ocasio had failed to follow the unambiguous and explicit procedures set forth in chapter 655. Dismissal was appropriate because the circuit court lacked competency to hear her case.

Contracts

Voluntary Payment Doctrine - Bills - Declaratory Judgments

Putnam v. Time Warner Cable, 2002 WI 108 (filed 16 July 2002)

A "class" of cable television customers sued Time Warner Cable based on the $5 "late fee" it imposed on customers who failed to pay their bills on time. The circuit court dismissed the complaint with prejudice, and the court of appeals affirmed.

The supreme court, in a decision written by Justice Prosser, affirmed in part and reversed in part. First, the court held "that the voluntary payment doctrine bars cable customers from recovering monetary damages for their payment of allegedly unlawful fees without objection or protest, if the customers do not properly allege mistake of fact on their part or fraud or duress on the part of the cable company" (¶3). The heart of the voluntary payment doctrine is a person's willingness "to pay a bill without protest as to its correctness or legality" (¶15, emphasis in original). Neither the customers' claims that the late fee grossly inflated "actual costs" nor their contention that the cable company "concealed material information" fell within the exceptions for fraud or mistake of fact (¶18).

The supreme court declined to create a third exception for a business's "wrongful conduct" (¶23). "All that a payor has to do to sidestep the voluntary payment doctrine is to make some form of protest over the fee prior to, or contemporaneous with, payment. When a payee has been given that notice, the funds received can be secured for future use until the dispute is settled" (¶33).

Second, the circuit court misapplied the law governing declaratory judgments by improperly focusing on the fact that none of the customers were currently facing the late payment fee. Rather, the "central issue" concerned Time Warner's "legal right to impose a $5 late-payment fee on its customers under their contracts" (¶47), a question of contract interpretation that "falls expressly within the scope of the declaratory judgment statute" (¶48). In short, the matter was "ripe for judicial determination" (¶52).

Justice Bablitch, joined by Chief Justice Abrahamson, concurred in the court's declaratory judgment analysis but dissented to the majority's holding on the voluntary payment doctrine. They contended that there should be an exception for unlawful liquidated damages.

Justice Sykes, joined by Justices Wilcox and Crooks, dissented to the majority's holding that the case was ripe for declaratory relief.

Criminal Procedure

Experts - Character Evidence - Compelled Psychological Test

State v. Davis, 2002 WI 75 (filed 26 June 2002)

Davis was charged with child sexual abuse. He filed a motion before trial notifying the court that he intended to introduce expert psychological testimony to the effect that he did not exhibit "character traits" consistent with sexual disorders such as pedophilia and, for that reason, was less likely to have committed the offense. Such expert evidence is usually called "Richard A.P. evidence," after its case law progenitor.

In response, the state filed a motion to compel Davis to submit to a psychological examination by its expert, citing State v. Maday, 179 Wis. 2d 346 (Ct. App. 1993). After the trial judge denied the state's motion to compel an examination, the state took an interlocutory appeal to the court of appeals. Reversing the trial court, the court of appeals held that Davis's intent to proffer Richard A.P. expert evidence placed his mental state in issue, waived his privilege against self-incrimination, and opened the door to an examination by the state's own expert.

The supreme court, in a decision written by Justice Bablitch, reversed the court of appeals. First, the court upheld the admissibility of expert character testimony based on Richard A.P. and its progeny, rejecting as "unpersuasive" the state's plea to ban such proof entirely. Nonetheless, trial courts retain the discretion to limit or exclude expert character evidence in appropriate cases (¶21). Since the trial court had not as yet ruled on the admissibility of the defense's expert evidence, this matter was remanded.

As to the second issue, the court was "not prepared to conclude that the defendant automatically waives his or her privilege simply by introducing Richard A.P. character profile evidence"(¶37). Such expert testimony "is introduced as character evidence, used as circumstantial evidence to show that the defendant did not commit the crime. The defendant has not introduced this evidence to support a particular defense related to his mental capacity" (¶37). Nor was the court "convinced that the state needs a reciprocal psychological examination in order to adequately counter such Richard A.P. character evidence" (¶38).

The court set forth the appropriate procedure, which, for the reader's convenience, will be quoted in full: "A defendant who seeks to introduce Richard A.P. evidence must notify the court and the state that he or she intends to introduce this evidence at trial and precisely identify the exact testimony that the expert will provide at trial and the bases for the expert's opinion. Upon this disclosure, the state may then bring a motion requesting the court to compel the defendant to undergo an examination by an expert from the state. On this motion, the circuit court must then carefully examine the defendant's disclosure regarding his or her expert's testimony and the expert's basis for his or her opinion. If this disclosure statement shows that the expert will either explicitly or implicitly provide testimony regarding relevant facts surrounding the alleged crime, the court may then order the defendant to undergo a reciprocal examination from the state based on the fact that the defendant waived his or her right against self-incrimination. In this way, the defendant is permitted to introduce expert opinion testimony pursuant to Richard A.P., but restricted from introducing statements that amount to nothing more than the defendant's own statements on the crime" (¶40). For example, expert opinion predicated on "standardized tests" that do not inquire into the alleged offense normally does not trigger the prosecution's right to have its own expert examination.

Justice Crooks, joined by Justice Prosser, dissented. They disagreed with the majority's characterization of Richard A.P. evidence and the application of Maday.

Evidence - Other Acts - Child Sexual Abuse Cases - Stipulations

State v. Veach, 2002 WI 110 (filed 16 July 2002)

The defendant was convicted of sexually assaulting a 7-year-old girl. The court of appeals reversed. Although it upheld the admissibility of other crimes evidence introduced by the state, the court found that the defendant's trial counsel was ineffective by not advising Veach that he could enter into a Wallerman stipulation that would have obviated the other crimes evidence.

The supreme court, in a decision written by Justice Prosser, reversed the court of appeals in an opinion that addressed three issues. First, the trial court properly exercised its discretion in admitting the other acts evidence, namely, the defendant's conviction for sexually assaulting his own young daughter nearly 15 years earlier. Under the Sullivan test, which governs the admissibility of such evidence, the state proffered the other act for a permissible purpose, namely as proof of the defendant's intent, motive, and absence of mistake or accident. Moreover, the other acts were relevant for those purposes under Wis. Stat. section 904.01 because they were "facts of consequence." Prior cases clarified "that the state is required to prove all elements of the crime beyond a reasonable doubt even if an element is not disputed" (¶77). And the similarity of the other act with the charged offense provided sufficient probative value, especially since the earlier offense tended to show that unlawful "touching" occurred, a fact denied by the defense (¶84). As to the final prong of the Sullivan test, the court agreed that "the other acts evidence in this case was graphic, disturbing, and extremely prejudicial" (¶91), yet its probative value was not substantially outweighed by unfair prejudice or other factors.

The second issue concerned whether the defendant's trial counsel "should have stipulated to certain elements of the charges against him in order to preclude the State from introducing other acts evidence," a so-called "Wallerman stipulation" (¶100). The court held "that to the extent [State v. Wallerman] and [State v. DeKeyser] imply that the state and the circuit court are obligated to accept Wallerman stipulations, those cases are incorrect and must be overruled," because they conflicted with several recent supreme court decisions that accorded the state "greater latitude" to use other act evidence in child abuse cases (¶118). Although such stipulations are not "per se invalid, ... the state and the court do not have to agree to Wallerman stipulations" (¶123). The court explicitly excepted proffered stipulations when the defendant's status (for example, convicted felon) is itself an element.

Third, for the reasons stated above, the court of appeals erred in finding that the defendant's trial counsel was ineffective for failing to pursue a Wallerman stipulation.

Justice Crooks concurred and would have explicitly overruled Wallerman and DeKeyser.

Chief Justice Abrahamson, joined by Justices Bablitch and Bradley, dissented on the ground that this case "is part of that jurisprudence eroding the evidentiary rule" [that is, section 904.04(2)] by permitting the state to offer unvarnished propensity evidence under the guise of traditional "other act" proof.

Searches - Child's Consent - Hearsay - Erroneous Instruction

State v. Tomlinson, 2002 WI 91 (filed 9 July 2002)

The supreme court, in a decision written by Justice Wilcox, affirmed the defendant's conviction for reckless homicide while using a dangerous weapon. The court addressed three issues.

First, the opinion explored the circumstances under which children can give to police consent - apparent or actual - to search. The record revealed that the defendant's teenage daughter permitted police to enter their home and stand in the entryway and the kitchen. The defendant was "nearby when the door opened" and did not object. "Under these circumstances, the officers reasonably could have believed that [the defendant] entrusted the girl with at least some authority to give consent to enter, and certainly with enough authority to allow the limited entry that occurred in this case" (¶34).

Second, the trial court properly admitted the preliminary hearing transcript of a witness pursuant to the "former testimony" exception to the hearsay rule. The declarant was "unavailable" in light of his assertion of the privilege against self-incrimination and his persistent refusal to testify, despite the court's order. The transcript itself satisfied the elements of the former testimony exception - the declarant had testified under oath at the preliminary hearing where the defendant had the "opportunity" to examine him. The admission of the hearsay also satisfied the confrontation right. The state had made a "good faith" effort to produce the declarant and the transcript was introduced under a "firmly rooted" exception; hence, it was reliable. In a significant footnote, the court suggested that Wisconsin case law dating back to 1982 "may have been overbroad in suggesting that the unavailability determination must be made in all Confrontation Clause cases" (¶46 n.7).

Finally, the jury instructions created an unconstitutional presumption because they directed the jury to find, in effect, that a baseball bat is a "dangerous weapon." Applying the harmless error formulation set forth in State v. Harvey, 2002 WI 93, the court held that the error was harmless because "it did not play any role in the jury's verdict."

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

Self-defense - Instructions - Victim's Character - McMorris Evidence

State v. Head, 2002 WI 99 (filed 11 July 2002)

The defendant was convicted of first-degree intentional homicide in the shooting death of her husband. The court of appeals affirmed.

The supreme court, in a decision written by Justice Prosser, reversed and remanded. The record supported the defendant's claim of imperfect self-defense. She was entitled to an instruction on second-degree intentional homicide and to introduce evidence of the victim's violent character in her effort to mitigate the charge of first-degree intentional homicide. Of special note, the supreme court also declared that Wis JI - Criminal 1014 (mitigation of first-degree to second-degree intentional homicide) "does not accurately reflect the law as set forth in this opinion" (¶7). The salient parts of the opinion are summarized below.

First, "a defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that she reasonably believed that she was preventing or terminating an unlawful interference with her person and reasonably believed that the force she used was necessary to prevent imminent death or great bodily harm" (¶4, emphasis in original). The defendant also must show that she or he actually believed these circumstances existed. A conviction for first-degree intentional homicide requires that the state prove beyond a reasonable doubt that the defendant did not, in fact, hold one or the other "actual" belief (¶70).

Second, a defendant seeking a jury instruction on imperfect self-defense to first-degree intentional homicide is not required to establish an "objective threshold" of proof regarding her belief that she was in imminent danger or her belief that the force used was necessary (¶5). Nonetheless, "when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide" (¶103).

The supreme court also addressed the evidentiary showing - "some evidence" - required to raise the issue of imperfect self-defense, observing that it "should not present great difficulty" (¶110). In so doing, the defense may rely on a proffer of McMorris evidence (essentially, evidence that the defendant knew or believed that the victim had a reputation for violence); put differently, the defense is not forced to demonstrate self-defense with evidence independent of McMorris proof. The defense also may offer proof of the victim's violent character (¶123).

Chief Justice Abrahamson, joined by Justice Bradley, filed a concurring opinion. Justice Wilcox also filed a concurring opinion that was joined by Justice Crooks.

Self-defense - Accident - Discretionary Reversal

State v. Watkins, 2002 WI 101 (filed 11 July 2002)

In a bench trial, the defendant was convicted of the lesser included offense of second-degree intentional homicide. The court of appeals reversed the defendant's conviction. The defendant shot the victim during a quarrel in a hotel room, but claimed it occurred "accidentally" while he was defending himself.

The supreme court, in a decision written by Justice Prosser, modified and affirmed the court of appeals. In remanding the case for a new trial, the supreme court found that the real controversy had not been fully tried under Wis. Stat. section 751.06. First, the trial court did not provide a "clear analysis" of its thinking regarding the interplay of self-defense and accident. Second, defense counsel failed to properly investigate the victim's violent reputation or to offer such evidence. Third, the court's rulings went against the defendant "on virtually every point in contention" (¶88). Fourth, the "retreat" doctrine was not properly applied. And fifth, the lengthy sentence aroused concerns.

Of more general importance, the court also held that "accident" is "not a true affirmative defense" because it attacks the elements of the offense (¶39). True affirmative defenses implicate facts apart from elements of the crime (¶40). "[T]he defense of accident is a defense to a charge of intentional homicide only if the person who caused the death was acting lawfully and with no criminal intent. We conclude that pointing the gun at another person as a threat of force does not necessarily preclude the possibility of asserting the accident defense so long as the person reasonably believes that such a threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference" (¶58, emphasis in original).

Although the supreme court ordered a new trial under the discretionary reversal standard, it found reasonable the trial judge's conclusion that the defendant had acted unreasonably in defending himself (¶¶75-77). It also reiterated that an "appellate court should not sit as a jury making findings of fact and applying the hypothesis of innocence rule de novo to the evidence presented at trial" (¶77).

Justice Sykes did not participate in this decision.

Search and Seizure - Consent to Search Vehicle After Traffic Stop Concluded

State v. Williams and State v. Mathews, 2002 WI 94 (filed 9 July 2002)

Defendant Williams and his passenger, Mathews, were stopped for speeding on an interstate highway. The state trooper conducting the stop issued a warning citation and returned Williams' driver's license and other paperwork, said "We'll let you get on your way," shook hands with him, and headed back to his squad car. After taking two steps, the trooper abruptly turned around and began questioning Williams as to whether he had any guns, knives, drugs, or large amounts of money in the car, and asked for permission to search the vehicle. Williams denied having any of the items in question and gave consent to a search. During that search the trooper found heroin and a gun.

The circuit court suppressed the evidence recovered in the search, concluding that the consent was invalid because Williams' continued detention after the traffic stop had concluded was illegal. The court of appeals affirmed.

In a majority decision authored by Justice Sykes, the supreme court reversed the court of appeals. The court began its analysis by observing that the question of whether a police contact is a "seizure" under the Fourth Amendment is determined by using an objective test. "A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." U.S. v. Mendenhall, 446 U.S. 544, 554 (1980). Questioning by law enforcement officers does not alone effectuate a seizure.

It was clear to the court, based upon the evidentiary facts established in this case, that the original traffic stop had concluded before the trooper asked about contraband and for permission to search. Accordingly, it focused on whether the driver was seized after the conclusion of the original traffic stop.

The majority concluded that a reasonable person in the defendant's circumstances would not have considered himself compelled to stay and answer the officer's questions. "Stated positively, a reasonable person would have felt free to decline to answer the officer's questions and simply 'get on [his] way'" (¶ 28). The officer did nothing, verbally or physically, to compel the defendant to stay. Accordingly, the consent to search the vehicle was not invalid.

In a footnote, the majority observed that this case did not present the question of whether the officer impermissibly exceeded the scope of or prolonged the initial seizure in violation of the Fourth Amendment.

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

Habitual Criminality - Proof of Repeater Status With Uncertified Copy of Judgment of Prior Conviction

State v. Saunders, 2002 WI 107 (filed 16 July 2002)

This case concerns the proof that the state may use to establish that the defendant is a repeat offender under the habitual criminality statute. See Wis. Stat. § 939.62. A defendant is subject to an enhanced penalty for habitual criminality only if 1) the defendant personally admits to the prior convictions that qualify him or her for repeat offender status, or 2) the existence of qualifying prior convictions is proved by the state. See Wis. Stat. § 973.12(1). The question before the court in this case was whether a copy of a prior judgment of conviction must be certified when the state uses it to prove the defendant's status as a repeat offender.

In a majority decision authored by Justice Prosser, the court held that section 973.12(1) does not require the state to use certified copies of prior judgments of conviction in order to meet its proof burdens under the statute. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. However, the state bears the full burden of proof, and it must offer proof beyond a reasonable doubt of the prior convictions. Said the court, "the better practice is for prosecutors to offer certified copies of judgments of conviction" (¶ 70).

The court counseled prosecutors not to depend upon the cooperation of defendants to prove prior convictions. "They should plan to present the best evidence available, and the best evidence available will normally be a certified copy of a judgment of conviction" (¶ 55).

It also urged trial courts to develop a standard colloquy regarding prior convictions, so that a defendant's admissions will fully satisfy the statute's requirements. The defendant may stand mute and decline to respond, as is his or her right, but in many instances an admission will obviate the need for the state to meet its proof requirements in other ways.

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

Insurance

UIM - Illusory Coverage

Badger Mutual Ins. Co. v. Schmitz, 2002 WI 98 (filed 10 July 2002)

Schmitz was horribly injured while riding as a passenger in a truck that slid on an icy road and flipped over. The driver's insurer paid Schmitz its $100,000 liability limits. Schmitz had underinsured motorist (UIM) coverage of $250,000 issued by American Merchants. Exercising its reducing clause, the UIM carrier paid Schmitz only $150,000. The trial judge acknowledged that the reducing clause conformed to the requirements of Wis. Stat. section 632.32(5)(i), but found that it rendered the UIM coverage illusory because the clause failed to clearly set forth that UIM payments would be reduced by sums paid by others. The court of appeals reversed.

The supreme court, in a decision written by Justice Prosser, reversed the court of appeals. The court extensively analyzed Wisconsin's "nettlesome" case law and statutory experience with UIM, which it likened to a "legal iceberg." The review focused especially on the labyrinthine litigation over whether reducing clauses render UIM coverage "illusory." In the wake of Dowhower v. West Bend Mut. Ins. Co., 200 WI 73, the court of appeals had concluded that an "unambiguous" reducing clause ends the inquiry. The supreme court, however, corrected this misimpression because "Dowhower contemplates consideration of the entire policy" (¶42) (emphasis original). Correctly understood, the cases "direct a reviewing court to examine an unambiguous reducing clause in the context of the entire policy to determine whether the coverage provided is understandable and clear. If the coverage provided is misleading and unclear, the policy is ambiguous, or worse, and the clause reducing UIM coverage is not enforceable" (¶49).

Carefully reviewing the entire policy, the supreme court charitably characterized the policy as "a maze that is organizationally complex and plainly contradictory," and one which "sends several false signals to the insured"(¶72). First, the declarations page, usually the first resort by insureds, failed to mention UIM coverage. Second, the "quick reference" sheet also contained no mention of UIM. Third, a schedule on page 23 of the policy "implied" that the full UIM limits were attainable (¶65). Finally, the form addressed to Wisconsin UIM coverage "appears to tell a prospective insured that if he or she purchases UIM coverage, the coverage will pay the remainder of the bodily injury damages up to the limit of liability the person selects" (¶70).

Justice Crooks, joined by Justices Sykes and Wilcox, dissented because the majority "completely ignores the unambiguous UIM reducing clause" (¶76).

Juvenile Law

Termination of Parental Rights - Standards for Determining Disposition of TPR Cases - Best Interests of the Child

Sheboygan County Department of Health & Human Services v. Julie A.B., 2002 WI 95 (filed 10 July 2002)

At a fact-finding hearing held pursuant to Wis. Stat. section 48.424, a jury found that a child placed in foster care because of parental neglect had a continuing need of protection or services, which is one of 11 statutory grounds for terminating parental rights. The circuit court then found the parent unfit pursuant to section 48.424(4), after concluding that the evidence supported the verdict. However, at the dispositional hearing, the court deter mined that the parent's conduct was not sufficiently egregious to warrant termination of parental rights and that termination was not essential to the child's safety or welfare. It therefore dismissed the TPR petition without ever considering the best interests of the child.

The court of appeals affirmed, concluding that the standards applied by the circuit court were correct, based on language in B.L.J. v. Polk County Department of Social Services, 163 Wis. 2d 90, 470 N.W.2d 914 (1991), and State v. Kelly S., 2001 WI App 193.

In a unanimous decision authored by Justice Prosser, the supreme court reversed the court of appeals. It concluded that the standards applied by both the circuit court and the court of appeals were incorrect. After a jury or the court has found one of the grounds for termination listed in the statute and the court has found the parent unfit, the focus shifts to the child's best interests. At the dispositional hearing, the court must consider any agency report submitted and the six factors listed in section 48.426(3) in determining the best interests of the child. The court also may consider other factors, including factors favorable to the parent. But all factors relied on must be calibrated to the prevailing standard: the best interests of the child. "The best interests of the child is the polestar for the court in a dispositional hearing, and a failure to apply that standard is an error of law" (¶ 4).

The termination statute does not require the termination of parental rights, but it does require the court to consider the best interests of the child. Therefore, at a dispositional hearing, the judge must explore the child's best interests and then determine whether maintaining the parents' rights serves the child's best interests. "A court should not dismiss a petition for termination at a dispositional hearing unless it can reconcile dismissal with the best interests of the child" (¶ 38). The best interests of the child standard is to be defined in relation to the child.

The court indicated that "no inference should be drawn from this opinion that, at a dispositional hearing, dismissal is the exception and termination is the rule. The best interests of the child will always drive the court's inquiry" (¶ 42).

Lastly, the court modified the legal standards set forth in B.L.J. and overruled Kelly S.

Waivers to Adult Court - Power of Juvenile Court to Reconsider Waiver Decision

State v. Vairin M., 2002 WI 96 (filed 10 July 2002)

The question before the supreme court in this case was whether a court with juvenile jurisdiction may reconsider its order waiving a juvenile into adult court after the state has filed charges against the juvenile in adult court. In an opinion authored by Justice Prosser, the majority held that a juvenile court has jurisdiction to reconsider its waiver order or to stay its waiver order pending appeal only until the filing of a complaint in adult criminal court. After the filing of a criminal complaint, the juvenile court loses jurisdiction and the criminal court has exclusive jurisdiction.

The court also addressed the question of whether there is some means by which a juvenile may seek prompt review of an order waiving him or her into criminal court after the criminal court has assumed exclusive jurisdiction over the case. It held that a juvenile seeking prompt review of a waiver order under these circumstances has two options:

First, the juvenile may bring a timely interlocutory appeal under Wis. Stat. section 809.50 and may move the court of appeals or the criminal court to stay the criminal proceedings pending appeal.

Second, if the juvenile has compelling new grounds bearing on waiver, he or she may file a motion with the criminal court asking the court to relinquish its jurisdiction by transferring the matter to juvenile court. "As grounds for the motion, the juvenile must allege a new factor that: 1) was not in existence at the time of the waiver decision or, if it was in existence, was unknowingly overlooked by all parties; 2) is highly relevant to the criteria for waiver under Wis. Stat. section 938.18(5); and 3) likely would have affected the juvenile court's determination that it would be contrary to the best interests of the juvenile or of the public for the juvenile court to hear the case" (¶ 7).

After reviewing the motion, the criminal court may, in its discretion, conduct a hearing. If the court finds good cause, it may relinquish jurisdiction by transferring jurisdiction to the juvenile court. The juvenile may then file a motion for reconsideration of waiver with the juvenile court, which will have regained exclusive jurisdiction to entertain the motion. The court observed that this new procedure "should be regarded as extraordinary. It should be strictly limited to compelling new factors. Previously considered or cumulative evidence may not form the basis of such a motion" (¶ 56).

Justice Crooks filed a concurring opinion that was joined by Justices Wilcox and Sykes.

Mental Commitments

Dangerousness - Constitutionality

State v. Dennis H., 2002 WI 104 (filed 12 July 2002)

The supreme court accepted this case on certification to decide a single issue: "whether the fifth standard of dangerousness in the involuntary civil commitment statute, Wis. Stat. § 51.20(1)(a)2.e. (1999-2000), is constitutional." This complex standard relates to persons who, because of their mental illness, are unable to make informed choices about treatment or medication. In this case the respondent's father, his psychiatrist, and his case manager filed a three-party petition alleging that the respondent's schizophrenia left him unable to care for his kidney condition. The respondent argued that the statute was unconstitutionally vague and overbroad, and that it denied his rights to equal protection and due process.

The supreme court upheld the statute's constitutionality in the face of all four challenges. Writing for the court, Justice Sykes addressed the respondent's central contention that the fifth standard differed substantially and impermissibly from the first four by not requiring proof of "physical harm." To the contrary, "[t]he fifth standard requires proof of a substantial probability that 'if left untreated,' the individual will 'lack services necessary for his or her health or safety and suffer severe mental, emotional, or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions" (¶30). Nor did the fifth standard run afoul of substantive due process by not requiring "imminent" physical harm to self or others. "[B]y requiring dangerousness to be evidenced by a person's treatment history along with his or her recent acts or omissions, the fifth standard focuses on those who have been in treatment before and yet remain at risk of severe harm, that is, those who are chronically mentally ill and drop out of therapy or discontinue medication, giving rise to a substantial probability of a deterioration in condition to the point of inability to function independently or control thoughts or actions" (¶41).

Chief Justice Abrahamson, joined by Justices Bablitch and Bradley, concurred but wrote separately to emphasize how "perilously close" the fifth standard came to upsetting the constitutional balance and the concomitant necessity of adducing "significant evidence" to support such commitments.

Motor Vehicle Law

OWI - Constitutionality of Blood Draw When Defendant Offers to Take Breath Test Instead

State v. Krajewski, 2002 WI 97 (filed 10 July 2002)

The issue before the court in this case was whether the state may require a warrantless blood draw for alcohol concentration testing from a person who is arrested on probable cause for OWI, when the person refuses to submit to a requested blood test under the implied consent statute but offers to submit to a breath test in lieu of a blood test.

In a majority decision authored by Justice Prosser, the court held that a warrantless nonconsensual blood draw from a person arrested on probable cause for OWI is constitutional based on the exigent circumstances exception to the Fourth Amendment's warrant requirement, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement. However, the blood draw must comply with factors specified in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). The Bohling court concluded that a warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: 1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk driving-related violation or crime, 2) there is a clear indication that the blood draw will produce evidence of intoxication, 3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and 4) the arrestee presents no reasonable objection to the blood draw.

The majority concluded that the warrantless blood draw in this case was properly based on exigency and complied with the factors enumerated in Bohling. The court rejected the defendant's argument that the exigency was negated by his offer to submit to a breath test rather than the blood test required by the officer. Nor did his offer render unconstitutional the withdrawal of blood.

The defendant's purported reason for declining consent for the blood draw was his fear of needles. The court concluded that there was no reason to treat his alleged fear as different from an articulated preference for a different chemical test. Said the majority, "blood draws to test for alcohol concentration are so commonplace, so accepted, so likely to be reasonable in their execution that a person's mere preference for a different test cannot be viewed as significant in a constitutional sense" (¶ 57). The implied consent statute limits the viable excuses of a medical or physical nature for refusing to submit to a chemical test, and the court concluded that those excuses represent a valid standard to apply in situations like the one in this case, in which blood was obtained outside the authority of the implied consent statute. [In this case the defendant refused the officer's request under the implied consent statute to submit to a blood test. Nonetheless, the police proceeded to obtain a blood sample on an exigent circumstances theory outside the implied consent statute.]

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

Open Records Law

Police Files - Closed Investigations

Linzmeyer v. Forcey, 2002 WI 84 (filed 2 July 2002)

The plaintiff was a high school mathematics teacher and girls' volleyball coach. The local police department conducted an investigation into allegations that he had made inappropriate statements to and engaged in inappropriate conduct with a number of his female students. A police report was compiled that contained the information obtained during the course of the police investigation.

The plaintiff was neither arrested nor prosecuted based on any information contained in the police report. Nor did the school district take any disciplinary action against him. Ultimately, the plaintiff resigned his position.

The parents of two of the students, along with a newspaper, requested release of the police report under the open records law. The investigation was closed when the open records request was made. The city attorney planned to release the report in the absence of judicial action. The plaintiff thereafter sought an injunction from the circuit court to prevent release of the report.

The circuit court concluded that the public's interest in the disclosure of the report outweighed the public's interest in protecting the plaintiff's reputation or privacy and denied the injunction. The plaintiff appealed, and the court of appeals certified the case to the supreme court.

The supreme court accepted certification and, in a decision authored by Justice Wilcox, affirmed. The court first considered whether the open records law applies to the record in question in this case - the report of a police investigation when the investigation has been closed and when no enforcement action has been taken or is contemplated. The court held that the open records law does apply and that no statutory or common law exceptions exempt the report from release. While certain sections of the open records law clearly prevent the release of law enforcement records under certain circumstances, those sections do not apply to the report in this case. Here, the report is a closed police file, no enforcement action was ever taken against the subject, it has been confirmed that no enforcement action will be taken in the future, and the investigation was not related to any other ongoing investigations. Because the report is a public record under the open records law and there is no statutory or common law exception, the court found that the open records law applies and that the presumption of openness attaches to the report.

The court next considered whether that presumption can be overcome by public policy favoring nondisclosure of the report. To make this determination, a balancing test is used on a case-by-case basis to determine whether permitting inspection of the records would result in harm to a public interest that outweighs the public interest in opening the records to inspection. In weighing public policies for and against release in this case, the court took the opportunity "to provide some guidance in dealing with the open records law as it relates to police records, and we attempt to identify factors that should be taken into consideration by records custodians before law enforcement records are publicly released" (¶ 12).

In doing so, the court found guidance in the federal Freedom of Information Act (FOIA), 5 U.S.C. 552. FOIA exempts law enforcement records from public disclosure under the following circumstances: "when the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, ... , (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. 552(b)(7).

These factors provide a framework that records custodians can use to determine whether the presumption of openness in law enforcement records is overcome by another public policy. In the present case, the court concluded that the public interest in preventing disclosure does not outweigh the public interest in release of the information.

The court concluded its opinion by cautioning that its decision on the merits in this case does not mean that all police records are immediately open to complete public disclosure, simply because there is a decision not to charge. "We emphasize again that the balancing test must be done on a case-by-case basis, to ensure that the public policies for and against release are assessed" (¶ 42).

Chief Justice Abrahamson filed a concurring opinion.

Protective Placement

Wis. Stat. Chapter 55 - Liability of Counties

Dunn County v. Judy K., 2002 WI 87 (filed 3 July 2002)

Judy K. is developmentally disabled, and Dunn County filed a petition requesting that she be protectively placed under Wis. Stat. chapter 55. Before the final hearing on the petition could be held, she was transferred to the Trempealeau County Health Care Center pursuant to an emergency placement order. At the hearing on permanent placement, the parties stipulated to a finding of the need for placement, but there were issues with respect to whether the Trempealeau County Health Care Center was the least restrictive environment appropriate for her. At a continuation of the final hearing, the county conceded that at least two of the proposed placement options were appropriate for Judy K. and were less restrictive than Trempealeau. However, its position was that she should remain at Trempealeau, where there was no additional cost to the county.

The circuit court ordered that Judy K. be transferred to a more expensive though less restrictive facility. Further, it directed the county to take affirmative steps to seek additional federal, state, local, or other funding to support the costs of her placement.

In a majority decision authored by Justice Bradley, the supreme court affirmed the circuit court. It articulated the issue before it as being whether, in a protective placement, a county may be required to take affirmative efforts to find and fund an appropriate placement. The court concluded that in protective placements pursuant to section 55.06(9)(a), counties must make an affirmative showing of a good faith, reasonable effort to find an appropriate placement and to secure funding to pay for an appropriate placement.

The determination of what is an appropriate placement depends on the application of all the factors outlined in the statute. At the same time, the statute provides a limitation on a county's ultimate financial liability: the county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual. See ¶ 29.

In the court's opinion, the "find and fund standard will help ensure that protective placements comport with the multi-factor statutory scheme, which recognizes the needs and rights of placed individuals as well as the significant role that counties play in the protective placement system" (¶ 30).

Justice Prosser filed a dissenting opinion that was joined by Justices Wilcox and Sykes.

Sexually Violent Persons

Chapter 980 - Issue Preclusion - Recantations

State v. Sorenson, 2002 WI 78 (filed 28 June 2002)

In 1985 Sorenson was convicted of sexually assaulting his 7-year-old daughter, L.S. Although L.S. later allegedly recanted her testimony, Sorenson and the state agreed to a reduced sentence that obviated a hearing on the recantation. Sorenson's parole was later revoked, and in the late 1990s the state sought his commitment as a sexually violent person pursuant to Wis. Stat. chapter 980. At his chapter 980 trial, the judge refused to admit evidence of L.S.'s alleged recantation because it would in effect reopen the 1985 conviction and mislead the jury. On appeal from a finding that Sorenson was a sexually violent person, the court of appeals reversed the judgment and remanded for further proceedings on whether issue preclusion barred Sorenson from offering all evidence of L.S.'s recantation.

The supreme court, in a decision written by Justice Bablitch, affirmed in an opinion that modified the court of appeals' analysis. The opinion disposed of two preliminary issues. First, chapter 980 respondents have the same constitutional rights as criminal defendants, as provided by Wis. Stat. section 980.05(1m). Nothing in the case law renders this "ambiguous." Second, because the issue had not been fully briefed, the court refrained from deciding whether issue preclusion is constitutionally prohibited across the board (¶22). Nonetheless, the court found that it might be "fundamentally unfair" to apply issue preclusion against Sorenson even if the doctrine is generally applicable in chapter 980 proceedings.

Examining the offensive use of issue preclusion as explicated in prior cases, the supreme court focused on whether "matters of public policy and individual circumstances" rendered its application "unfair," considering especially any "inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action" (¶23). The state's experts relied heavily on the fact that Sorenson had committed the underlying offense. The victim's alleged recantation must meet the standard for "newly discovered evidence" as set forth in the case law (see § 26). If that test is met, "issue preclusion cannot apply as a matter of law based on fundamental fairness" (¶33).

Finally, the court rejected the state's contention that Sorenson's motion constituted an impermissible collateral attack on the underlying 1985 conviction.

Chapter 980 - Constitutionality

State v. Laxton, 2002 WI 82 (filed 1 July 2002)

Laxton was convicted for a variety of sex-related offenses in 1987, and in 1994 had his parole revoked for "peeping" at young girls. In 1998 he was adjudicated a sexually violent person under Wis. Stat. chapter 980 and ordered committed.

The supreme court, in a decision written by Justice Crooks, affirmed Laxton's commitment. First, Laxton raised various substantive due process challenges. Relying in part on Kansas v. Crane, 534 U.S. 407 (2002), the court upheld chapter 980 despite Laxton's contention that it failed to adequately "narrow the class of persons eligible for commitment to those who have serious difficulty in controlling their dangerousness in a manner distinct from the typical recidivist" (¶17). In sum, the "concept of control" is embraced through the elements of 1) mental disorder and 2) dangerousness:

"[T]he required proof of lack of control ... may be established by evidence of the individual's mental disorder and requisite level of dangerousness, which together distinguish a dangerous sexual offender who has serious difficulty controlling his or her behavior from a dangerous but typical recidivist" (¶21).

Second, the jury instructions did not deprive him of due process (the supreme court overlooked Laxton's waiver of error and addressed the merits of his claim). The instructions "virtually tracked the definitions of 'mental disorder' and 'sexually violent person' in Wis. Stat. section 980.01" (¶27). Finally, the court was not persuaded that Laxton was entitled to a new trial because the "real controversy" was not fully and fairly tried.

Torts

Municipal Immunity - "Known Danger" Exception

Lodl v. Progressive Northern Ins. Co., 2002 WI 71 (filed 25 June 2002)

The plaintiff was injured in an intersection accident in the town of Pewaukee. The traffic control lights at the intersection were inoperable because of a storm and so the town dispatched a police officer to the scene. The plaintiff sued the officer and the town, claiming that the officer negligently failed to control traffic and that the town was liable for the officer's negligence under respondeat superior theory.

The circuit court granted summary judgment in favor of the defendants, concluding that they were immune under Wis. Stat. section 893.80(4). The court of appeals reversed, finding that the known danger exception to immunity applied and that material factual issues regarding the adequacy of the officer's response to the known danger precluded summary judgment.

In a majority decision authored by Justice Sy

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