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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 77, No. 8, August 2004

    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

    * *

    Appellate Procedure

    Notice of Appeal - Notice Fundamentally Flawed Because It Was Not Signed by Appellant's Counsel

    Brown v. MR Group LLC, 2004 WI App 122 (filed 26 May 2004) (ordered published 30 June 2004)

    The appellant filed a notice of appeal on which his attorney's name appears as a handwritten signature with the initials "sad" appearing below counsel's name. Counsel had directed his legal assistant, whose initials were "S.A.D.," to affix the attorney's signature to the notice of appeal after the attorney prepared and reviewed the document. The respondent argued that the notice of appeal was fundamentally defective and that therefore the court of appeals lacked jurisdiction over this appeal.

    In a per curiam decision the appellate court held that "in order to confer jurisdiction on this court, a notice of appeal filed by counsel on behalf of another must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin" (¶ 1).

    Wis. Stat. section 802.05(1)(a) requires an attorney of record to sign the pleading in the attorney's own name. The statute "does not permit counsel to delegate to a person not authorized to practice law in Wisconsin the function of affixing counsel's signature to the notice of appeal" (¶ 13). "When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction on this court. A person not admitted to practice law has no authority to sign a pleading on behalf of another to invoke this court's jurisdiction. A fundamentally defective notice of appeal cannot be cured by the filing of an amended notice of appeal which is not otherwise timely vis-à-vis the order or judgment appealed from" (¶ 6).

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    Criminal Law

    Failure to Pay Child Support - Elements of the Crime - "Court of Competent Jurisdiction" Element - Authentication of Out-of-State Support Order

    State v. Smith, 2004 WI App 116 (filed 27 May 2004) (ordered published 30 June 2004)

    The state charged the defendant with two counts of failure to pay child support for a period of 120 or more consecutive days. Wis. Stat. section 948.22(2) provides that "[a]ny person who intentionally fails for 120 or more consecutive days to provide ... child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a ... felony." The statute defines "child support" to include "an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state ...." (emphasis supplied).

    At trial the defendant argued that the matter of the court's competent jurisdiction must be submitted to the jury, and he requested a jury instruction to that effect. The circuit court ruled as a matter of law that the court in Maine that had issued the child support order was a court of competent jurisdiction. The trial judge refused to instruct the jury on this issue and prohibited the defense from presenting direct evidence on the question. The defendant was convicted on both counts.

    In an opinion authored by Judge Dykman, the court of appeals reversed. It concluded that "where, as here, a charge of failure to provide child support is based upon noncompliance with a child support order, the question of whether the child support order has been issued by a court of competent jurisdiction needs to be submitted to the jury, even though that determination involves the application of a legal standard to the facts of the case" (¶ 9). This is the result because one element of this crime is that a court of competent jurisdiction must have issued the child support order. Accordingly, the appellate court concluded that "the trial court's refusal in this case to instruct the jury that the child support order needed to have been issued by a court of competent jurisdiction deprived the defendant of his Fifth Amendment right to have all elements of the crime decided by a jury" (¶ 9).

    The court then defined "court of competent jurisdiction" as "a court that had both the power to exercise subject matter jurisdiction and the personal jurisdiction to issue a support order. The personal jurisdiction requirement in turn encompasses the requirement of adequate notice" (¶ 16).

    The court also addressed the issue of the litigation of the "court of competent jurisdiction" element. "We are aware that subject matter jurisdiction and personal jurisdiction may be difficult concepts for a jury to grasp. Our decision means the State might be required to provide expert testimony on the question of competent jurisdiction, particularly where an out-of-state order is involved. See Witt v. Realist, Inc., 18 Wis. 2d 282, 289-90, 118 N.W.2d 85 (1962) (foreign law is to be proven as other facts and expert testimony on the subject is permissible). In the typical case, however, we are confident that a trial court could give adequate instructions to guide the jury as to whether an order was issued by a court of competent jurisdiction. That is, the court could properly instruct the jury as to the relevant law. The jury could then apply the trial court's explanation of the law in determining whether a court of competent jurisdiction did, in fact, issue an order requiring the defendant to provide support" (¶ 17).

    Lastly, the appellate court addressed the issue of authentication of the support order issued by the Maine court. It looked to Wis. Stat. section 889.15 as establishing three ways in which an out-of-state order may be authenticated: "(1) by compliance with the certification provisions of Wis. Stat. §§ 889.07 and 889.08; (2) by compliance with the provisions set forth by Congress [in 28 U.S.C. § 1728]; or (3) by compliance with the provisions of the state where the order was issued" (¶ 26).

    Firearms - Felons

    State v. Thomas, 2004 WI App 115 (filed 18 May 2004) (ordered published 30 June 2004)

    A jury convicted the defendant on a count of being a felon in possession of a gun but found him not guilty of carrying a concealed weapon. The court of appeals, in an opinion authored by Judge Wedemeyer, affirmed. The court first held that article I, section 25 of the Wisconsin Constitution did not repeal Wis. Stat. section 941.29, which criminalizes a felon's possession of a gun. The defendant's arguments were predicated on "inaccurate historical methodology" and erroneous legislative history. Second, section 941.29 was not unconstitutionally vague and overbroad. As to the vagueness challenge, the court found the statute to be "clear and sufficient" (¶ 18). Rejecting the defendant's overbreadth challenge, the court explained that "the legislature determined as a matter of public safety that it was desirable to keep weapons out of the hands of individuals who had committed felonies" (¶ 23).

    Third, the court also rejected an array of imaginative equal protection arguments based on distinctions between felons and "misdemeanants" and between violent and non-violent felons and on a statutory exemption for correctional officers employed before 1982. Finally, the court declined to grant a motion for a new trial in the interest of justice based on alleged "inconsistent" verdicts.

    Judge Schudson concurred but declined to join the majority's opinion.

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    Criminal Procedure

    Hearsay - Confrontation

    State v. Manuel, 2004 WI App 111 (filed 27 May 2004) (ordered published 30 June 2004)

    A jury convicted the defendant of a number of serious, violent felonies related to a shooting. On appeal he raised issues regarding the admissibility of hearsay evidence and ineffective assistance of counsel.

    The court of appeals, in an opinion authored by Judge Deininger, affirmed the convictions. First, the trial court properly admitted, as statements of recent perception, hearsay statements by an accomplice to the effect that the defendant had shot the victim. See Wis. Stat. § 908.045(2). The rule's requirement that the declarant make the statement in "good faith, not in contemplation [of litigation]" was amply supported by evidence that the accomplice's purpose was to convince his girlfriend to flee with him to a hotel after the shooting.

    Second, and more important, the court of appeals addressed the confrontation right in light of Crawford v. Washington, 124 S. Ct. 1354 (2004), which replaced the previously prevailing approach with one that distinguishes between testimonial and "nontestimonial" hearsay. The court held that the accomplice's statement fell into the nontestimonial hearsay category because it was not made to a government agent or in a formal proceeding, as explained by Crawford. Nontestimonial hearsay may be used against a defendant at trial (unlike "testimonial" hearsay), but the court of appeals, proceeding from an "abundance of caution" (¶ 23), further applied the pre-Crawford confrontation test, which requires the prosecution to make a good faith effort to produce the declarant at trial and to demonstrate the hearsay's "reliability." On the record before it, the court found that the statement satisfied this test as well (¶ 28).

    Finally, the defendant was not denied effective assistance of counsel just because his attorney failed to introduce evidence that the accomplice had prior convictions.

    Discovery - Exclusion of Evidence for Failing to Provide Discovery - Admissibility of Excluded Evidence in Subsequently Refiled Case

    State v. Miller, 2004 WI App 117 (filed 6 May 2004) (ordered published 30 June 2004)

    The defendant was charged with a criminal OWI offense. The circuit court excluded certain of the state's evidence as a sanction for a violation of the discovery statute (Wis. Stat. § 971.23). The state then moved to dismiss the case and the court granted the motion without prejudice. The state then refiled the charge and the defense moved to exclude the same evidence, even though it was now in the defendant's possession, because of the decision in the first action to exclude that evidence. The circuit court denied the motion and the defendant was convicted.

    In a decision authored by Judge Vergeront, the court of appeals affirmed. "The first sentence of Wis. Stat. § 971.23(7m)(a) plainly requires the court to exclude evidence not presented as required by the section if good cause is not shown. If good cause is shown, the court may exclude the evidence but it is not required to do so; it may instead grant the opposing party a recess or continuance, as provided in the second sentence. There is nothing in the paragraph to suggest that the legislature intended to prevent the offending party from introducing the same evidence in a subsequent proceeding if there was no violation in that proceeding of the party's obligations under § 971.23. Similarly, there is nothing in this paragraph to suggest that the State may not obtain a dismissal of charges after evidence is excluded under this paragraph and then refile the charges" (¶ 10) (citations omitted).

    The appellate court also rejected defense arguments that the equal protection clause and the doctrines of issue preclusion, claim preclusion, and estoppel by record required the evidence to be excluded in the refiled case.

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    Employment Law

    Non-Compete Clause - Choice of Law

    Beilfuss v. Huffy Corp., 2004 WI App 118 (filed 12 May 2004) (ordered published 30 June 2004)

    Beilfuss worked for the Huffy Corporation, which is based in Ohio. His employment contract included a noncompetition clause and choice of law and forum provisions. After Beilfuss left Huffy to work for another corporation, Huffy notified him and his new employer that he was in violation of the Huffy contract. Beilfuss filed this declaratory judgment action in a Wisconsin court seeking to have the contract declared null and void. Huffy moved to dismiss because the contract provided that Ohio law governed the issues and any litigation must occur in Ohio courts. The circuit court essentially granted Huffy's motion. See ¶ 4.

    The court of appeals, in an opinion written by Judge Anderson, reversed. Relying on the "strong public policy" embodied in Wis. Stat. section 103.465, which invalidates unreasonable restraints on employees, the court held that the clauses in question violated Wisconsin law (¶ 16). For example, Ohio law, unlike Wisconsin law, permitted "selective enforcement or judicial modification of an unreasonable covenant" (¶ 15). And "because the choice of law provision is invalid, the enforcement of the forum selection would be unreasonable." See ¶ 16. For "practical reasons" it made good sense "to have a court familiar with Wisconsin statutory and common law covering covenants not to compete apply the law rather than a court in another forum which is unfamiliar with Wisconsin's law or public policy" (¶ 18).

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    Family Law

    Termination of Parental Rights - Failure to Visit or Communicate with Child - Adjudication of Paternity after Period of Noncommunication

    State v. James P., 2004 WI App 124 (filed 11 May 2004) (ordered published 30 June 2004)

    The appellant's parental rights were terminated after the trial court found in a bench trial that he had abandoned his child by having no contact with her during two eight-month periods in 2000 and 2001 and that there were thus grounds to terminate his parental rights pursuant to Wis. Stat. section 48.415(1)(a)3. Under this statute, parental rights can be terminated if the child in question "has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer." On appeal the appellant argued that this statute did not apply to him on the ground that he was not the girl's "parent" during the periods at issue because he was not adjudicated as her father until 2002.

    In a decision authored by Judge Fine, the court of appeals affirmed the circuit court. The statutory definition of "parent" includes a child's biological parent. See Wis. Stat. § 48.02(13). The court concluded that the fact of biological parenthood "does not turn on whether it is recognized, found, or adjudicated ...." (¶ 4). The appellant "was always [the girl's] biological father, even before he was formally adjudicated as such" (¶ 5).

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    Juvenile Law

    Violations of Dispositional Orders - Sanctions for "Incidents" in Which Conditions of Dispositional Orders are Violated

    State v. Ellis H., 2004 WI App 123 (filed 19 May 2004) (ordered published 30 June 2004)

    This case concerns sanctions for violations of the conditions of dispositional orders in juvenile cases and whether those sanctions can be imposed for each violation or, alternatively, whether they are limited by the number of incidents in which the violations occur without regard to the number of violations.

    Wis. Stat. section 939.355 (6)(d) provides that "[i]f the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order, the court may order any of the following sanctions as a consequence for any incident in which the juvenile has violated one or more conditions of his or her dispositional order[.]"

    In a decision authored by Judge Brown, the court of appeals concluded that the language of this statute means that "the court may order a sanction as a consequence for 'any incident in which the juvenile has violated one or more conditions of his or her dispositional order.' The statute therefore clearly recognizes that multiple conditions may be violated in any one incident but only allows one sanction per incident, not per condition violation. Stated another way, the statute plainly anticipates that any incident may consist of more than one condition violation, but nonetheless informs that only one of a number of available sanctions may be instituted for an incident. Therefore, to the extent that the juvenile court's bench decision can be read to say that the statute allows courts to apply a sanction for each condition violation, we respectfully disagree" (¶ 7).

    The court provided guidance for determining the number of incidents for which sanctions may be imposed. "[T]he proper question to ask when determining whether a juvenile's conduct constitutes separate 'incidents,' or separate units of experience permitting multiple sanctions, or a continuous 'incident,' or a single unit of experience permitting only one sanction, is whether the juvenile came to a 'fork in the road' and nevertheless 'invade[d] a different interest.' This means we must determine whether the juvenile's course of conduct is marked by different and distinct volitional acts in between which the juvenile had sufficient time to reflect and choose to commit himself or herself to a particular act" (¶ 21).

    "If the juvenile comes to the 'fork in the road' and his or her intent is to 'invade a different interest,' the juvenile has ended one incident and begun another and the juvenile may be additionally sanctioned for a subsequent condition violation. On the other hand, if the juvenile comes to the 'fork in the road' and does not intend to 'invade a different interest,' the incident is still ongoing and all subsequent condition violations are incidental to or are part and parcel of that same incident and only one sanction is permitted" (¶ 22).

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    Statutes of Limitation - Mental Condition

    Walberg v. St. Francis Home Inc., 2004 WI App 120 (filed 4 May 2004) (ordered published 30 June 2004)

    The circuit court dismissed negligence and breach of contract claims against a nursing home on the ground that they were time-barred under Wis. Stat. section 893.22. The court of appeals, in a decision authored by Chief Judge Cane, reversed. "Here, Wis. Stat. §893.22 does not apply because Yox's claims could not have had less than one year remaining on their periods of limitations. It is undisputed that Yox suffered from a mental illness at the time her claims accrued and, therefore, Wis. Stat. § 893.16 tolled her claims' periods of limitations" (¶ 8). "When a person's mental disability does not cease, Wis. Stat.
    § 893.16(1) provides that the underlying period of limitations remains tolled, but cannot be extended for more than five years. Thus, a disabled person has up to eleven years to commence a contract action and up to eight years to commence a negligence action for injury to the person" (¶ 9).

    Because the parties agreed that Yox's claims accrued in December 1996, her estate had until December 2007 to bring the contract claim and until December 2004 to bring the tort action. See ¶ 10. The court declined to decide whether Yox's death in August 2000 constituted a "cessation" of her disability because both the contract and tort actions would still be considered timely filed even if the disability was considered to have ceased at Yox's death. See ¶ 13.

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