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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 76, No. 9, September 2003

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    * *

    Criminal Procedure

    Search and Seizure - Warrantless Entry of a Home to Make OWI Arrest

    State v. Larson, 2003 WI App 150 (filed 18 June 2003) (ordered published 30 July 2003)

    A deputy sheriff received two dispatches regarding a possible intoxicated driver and providing a description of the vehicle, including its license number. The deputy determined that the vehicle was registered to the defendant and went to the apartment building where he lived, observing a vehicle fitting the description parked at that address. The deputy knocked on the door of the defendant's apartment. When the defendant opened the door, the deputy placed his foot across the threshold to prevent the door from being slammed on him. In that position he questioned the defendant, who admitted owning the vehicle and having just driven home from a bar. The deputy smelled the odor of intoxicants on the defendant and detected slurred speech. Based upon this interaction, the deputy believed the defendant was under the influence and moved further into the apartment and placed him under arrest.

    The defendant was charged with OWI as a second offense, which is a criminal violation. The defendant moved to suppress evidence seized subsequent to the officer's entry into his residence without a warrant. The circuit court denied the motion.

    In a decision authored by Judge Brown, the court of appeals reversed. The court first considered whether the deputy's step into the threshold of the defendant's apartment, which prevented the defendant from closing the door, was an entry into the apartment triggering the Fourth Amendment's warrant requirement. Relying on State v. Johnson, 177 Wis. 2d 224, 501 N.W.2d 876 (Ct. App. 1993), the court concluded that the deputy's step into the threshold was an entry for Fourth Amendment purposes. Johnson teaches that "even if the officer's incursion only extends from the tips of his toes to the balls of his feet, this incursion is the fixed `first footing' against which the United States Supreme Court and the Wisconsin Supreme Court have previously warned" (¶ 11).

    Next, the court concluded that, at the moment the deputy put his foot inside the doorway, he did not have probable cause to arrest the defendant. However, even were the court to assume that probable cause existed, the defendant still should have prevailed on his motion to suppress, because the state did not demonstrate that exigent circumstances were present that would have justified a warrantless entry. The officer in this case was not faced with exigent circumstances during his encounter with the defendant at the apartment. Exigent circumstances may, in some circumstances, arise because of danger to life if an arrest is not made immediately. Only where a delay in the investigation would gravely endanger lives does this factor in the exigency formulation come into play. The facts of this case did not present such a situation. The court further concluded that this case did not involve a convincing claim of "hot pursuit" and, because the defendant had already arrived at home and parked his car, there was little threat to public safety. Lastly, the court concluded that, under Welsh v. Wisconsin, 466 U.S. 740 (1984), a warrantless home arrest could not be upheld simply because evidence of the defendant's blood alcohol level might have dissipated while the police obtained a warrant.

    Disclosure of Exculpatory Evidence - Discovery

    State v. Harris, 2003 WI App 144 (filed 18 June 2003) (ordered published 30 July 2003)

    On April 24, 2001, the state filed a criminal complaint alleging that the defendant had sexual contact with a 6-year-old child. The defense filed a demand for discovery and inspection in which it demanded that the state provide all exculpatory evidence, including evidence that would lead to further investigation. Ultimately, the defendant pleaded guilty to first-degree sexual assault of a child.

    Shortly after sentencing, the prosecutor informed defense counsel that in June 2001, the child made an allegation that her grandfather (who was not the defendant) had sexually assaulted her in February 2001. The defendant filed a motion for post conviction discovery and a motion to withdraw his guilty plea. The circuit court conducted a hearing and granted the motion, finding that the state failed to turn over potentially exculpatory evidence in violation of the defendant's constitutional rights.

    In a decision authored by Judge Anderson, the court of appeals affirmed. On a constitutional level, the court applied Wisconsin precedent, which holds that once a defendant makes a pre-plea discovery demand requesting any potentially exculpatory evidence in the state's exclusive control, the state must provide the defense with the evidence before the plea is taken. See State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999). The court did not apply the recent U.S. Supreme Court case of United States v. Ruiz, 536 U.S. 622 (2002), which it distinguished because the federal case did not address a written pre-discovery demand.

    The appellate court concluded that the circuit judge correctly applied Wisconsin precedent and properly exercised his discretion when allowing the defendant to withdraw his plea. A violation of the defendant's constitutional rights occurred, that violation caused him to plead guilty, and at the time of the plea, the defendant was unaware of the potential constitutional challenges to the case against him because of the violation. The court concluded that the undisclosed evidence was potentially exculpatory for several reasons; for example, it showed an alternative source for the young victim's sexual knowledge and it showed that it is possible that the child did not wish to disclose the sexual assault by the grandfather and projected it onto the defendant.

    The court also concluded that there was a violation of the discovery statutes. Upon demand, the district attorney must disclose any exculpatory evidence. See Wis. Stat. § 971.23(1)(h). The state argued that the statutory term "exculpatory evidence" is limited to evidence that is constitutionally required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963). The court disagreed. "Our review of the legislative history of § 971.23(1)(h) does not support that it was simply meant to be a codification of Brady. The discovery statute in Wisconsin is apart from constitutional law principles and directs the district attorney, upon demand, to disclose `any exculpatory evidence.' [The defendant] made a statutory demand and the state's failure to disclose the potentially exculpatory evidence of an alleged sexual assault by [the young victim's] grandfather was a violation of [the statute]" (¶ 46).

    Employment Discrimination

    Title VII - Actions on Settlement Agreements - Sovereign Immunity

    Klein v. Board of Regents of the University of Wisconsin System, 2003 WI App 118 (filed 15 May 2003) (ordered published 25 June 2003)

    When the plaintiff was denied tenure at U.W.-Stout, she filed a Title VII discrimination complaint alleging that tenure had been denied in retaliation for her complaints of sexual harassment at the university. The Equal Employment Opportunity Commission facilitated mediation and a settlement agreement was reached.

    The plaintiff subsequently brought this suit under the settlement agreement claiming that U.W.-Stout failed to comply with all of the terms thereof. The Board of Regents moved to dismiss based on sovereign immunity. The circuit court interpreted the settlement agreement as part of the plaintiff's Title VII claim and concluded that sovereign immunity did not bar her lawsuit.

    In a decision authored by Judge Roggensack, the court of appeals agreed with the decision of the circuit court on the immunity question. The Wisconsin Supreme Court has held that sovereign immunity does not lie against a claim brought under Title VII. See Lindas v. Cady, 150 Wis. 2d 421, 441 N.W.2d 705 (1989). The appellate court concluded that the plaintiff's present action is part of her initial Title VII claim and, as such, sovereign immunity does not lie. Said the court, "to conclude otherwise would undermine the policy of voluntary compliance, that is most often achieved through settlement agreements, and force more cases into court for judicial resolution of the initial Title VII claims" (¶ 13).

    Employment Law

    Back Pay - Entitlement of Former Employees

    Beaudette v. Eau Claire County Sheriff's Dept., 2003 WI App 153 (filed 3 June 2003) (ordered published 30 July 2003)

    The plaintiffs resigned from employment with the Eau Claire County Sheriff's Department while it was negotiating a new collective bargaining agreement with their union. The previous contract had expired and, at the time the plaintiffs left employment, the department and the union had not reached a new agreement. Ultimately, when a new agreement was reached, current employees received retroactive wage increases. However, the county denied retroactive pay to employees like the plaintiffs who had stopped working for the county during contract negotiations. The plaintiffs sought and eventually were awarded retroactive pay by the circuit court.

    In a decision authored by Chief Judge Cane, the court of appeals affirmed. The new contract is retroactive to Jan. 1, 1996, and covers the period from that date to Dec. 31, 1999. It was undisputed that the plaintiffs worked for the department during this period (having terminated their employment in 1998). Had the contract been signed on its effective start date, the plaintiffs would have received their wage increases. The appellate court did not discern any ambiguity in the contract because of its failure to address retroactivity. Instead, said the court, the contract is unambiguous. People who worked in the bargaining unit during the term of the new agreement are entitled to be paid according to its terms. This includes the plaintiffs who brought
    this action.

    Medical Assistance

    Divestment of Assets - Irrevocable Trusts

    Estate of Gonwa v. Wisconsin Dept. of Health & Family Servs., 2003 WI App 152 (filed 11 June 2003) (ordered published 30 July 2003)

    On Feb. 21, 2000, Gerald and Janice Gonwa established the Gerald and Janice Gonwa irrevocable trust agreement. The irrevocable trust named Gerald and Janice as initial trust income beneficiaries and Gerald's children as principal beneficiaries. That same day, Gerald and Janice sold to the irrevocable trust $150,000 of assets pursuant to a private annuity agreement. According to the terms of the private annuity agreement, the irrevocable trust would make payments to the Gonwas, except when one intended to make an application for Medicaid, all payments under the private annuity agreement would be allocated and paid out to the nonapplying spouse and the applying spouse "shall not be entitled to any payments" under the agreement. Similarly, the trust agreement's provisions governing the disposition of principal and income stated that, at such time as either Gerald or Janice intends to make application for Medicaid, then in that event all of the income of the trust shall be allocated and paid out to the settlor who is not making an application and that the settlor who is making such application shall not be entitled to any payments of income under the trust.

    Gerald entered a nursing home in March 2000 and first applied for institutional Medical Assistance (MA) in June 2000. MA was denied because it was determined that the trust had divested $150,000 in funds during the "look-back period" when it purchased the private annuity, thereby creating divestment ineligibility from Feb. 1, 2000 to Jan. 1, 2003. The circuit court upheld the determination of the Department of Health and Family Services that Gerald was ineligible for MA based on the divestment of assets. In a decision authored by Judge Nettesheim, the court of appeals affirmed.

    MA is a joint federal and state program aimed at ensuring medical care for those who cannot pay for their own care. An applicant must meet the financial requirements set forth in Wis. Stat. chapter 49 in order to be eligible for MA, and one can become ineligible for certain MA benefits if he or she transfers assets in a manner prohibited by statute. The department determined, pursuant to section 49.454(3)(b), that the Gonwases' sale of a $150,000 private annuity to an irrevocable trust that prohibits payments to Gerald or payments made for his benefit was a divestment pursuant to section 49.453. Giving due weight to the department's decision, the appellate court concluded that its interpretation of the applicable MA statutes was reasonable.


    Invasion of Privacy - Disclosure of Information to a Single Person - Offers of Judgment

    Pachowitz v. LeDoux, 2003 WI App 120 (filed 28 May 2003) (ordered published 25 June 2003)

    LeDoux was employed by a fire department as an emergency medical technician. In that capacity she provided emergency medical attention to the plaintiff. Subsequently, she told a friend that she had assisted in transporting the plaintiff to a hospital emergency room for a possible overdose. LeDoux knew that this friend was a coworker of the plaintiff at a different hospital. The friend to whom the information was disclosed subsequently revealed the information to other staff at the hospital where the plaintiff was employed.

    In this case, the plaintiff alleged that LeDoux had defamed her and violated her privacy by publicizing information concerning her medical condition and making untrue statements indicating that she had attempted suicide. A pretrial offer of judgment made by LeDoux and a pretrial offer of settlement by the plaintiff were both rejected. The plaintiff prevailed at a jury trial.

    Among the issues on appeal was whether an invasion of privacy under Wis. Stat. section 895.50(2)(c) can occur when private information is disclosed to a single person. "Publicity" has been defined for purposes of section 895.50 to mean that "the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Hillman v. Columbia County, 164 Wis. 2d 376, 394, 474 N.W.2d 913 (Ct. App. 1991). The defendant argued that she told only one person about the medical call and it was that person - not the defendant - who further publicized the information to the staff of the hospital where the plaintiff was employed.

    In a decision authored by Judge Nettesheim, the court of appeals rejected the assertion that a disclosure of private information to one person can never constitute "publicity." Instead, it agreed with the trial court that the character and nature of the one person to whom the offending information was communicated, here the mutual friend, was a matter that had to be probed at a full trial. As stated by the trial court, there was a genuine issue of material fact as to the type and character of the mutual friend, because there was no evidence as to whether she was the "biggest gossip [in the town and at the hospital where she and the plaintiff worked] or whether she had the stiffest upper lip of anyone in the state" (¶ 21).

    In sum, the court concluded "that disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Rather, whether such a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of the plaintiff's relationship to the audience who received the information" (¶ 24).

    Another issue before the appellate court in this case involved the defendant's pretrial offer of judgment that was made pursuant to Wis. Stat. section 807.01(1). The trial court ruled that the offer was defective because it did not include an allowance for the plaintiff's reasonable attorney fees. In addition, when measuring the defendant's offer of judgment against the final judgment, the court added the plaintiff's attorney fees to the jury's compensatory damage award, which put the amount of the judgment in excess of the defendant's offer. The defendant challenged both of these conclusions.

    The appellate court held that when a defendant is sued under a fee shifting statute, such as section 895.50 in this case, that party is on notice that the plaintiff is seeking not only damages but also reasonable attorney fees. Accordingly, when making an offer of judgment, the defendant is properly held to include such fees and to so inform the plaintiff. From that it logically follows that the trial court should also include attorney fees in the judgment when it determines whether the judgment exceeds the offer for purposes of relief under section 807.01(1).