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    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals.

    Daniel BlinkaThomas Hammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 2, February 2006

    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

    * *

    Administrative Law

    Judicial Review - Issue Preclusion

    Kimberly Area Sch. Dist. v. LIRC, 2005 WI App 262 (filed 15 Nov. 2005) (ordered published 21 Dec. 2005)

    A school district employee was terminated for using drugs and misrepresenting his prior record. The employee filed a grievance challenging the termination and also filed a fair employment discrimination complaint against the district with the Department of Workforce Development. An arbitrator ruled against the employee and in favor of the school district. The school district then asked the administrative law judge (ALJ) to dismiss the discrimination complaint based on issue preclusion.

    "According to the ALJ, issue preclusion could be applied, in part, because the arbitrator's decision was subject to judicial review under Wis. Stat. § 788.10(1). Further, the ALJ determined that even if the decision was not subject to judicial review, it still would be equitable to assign preclusive effect to the arbitrator's findings. The ALJ concluded that the District's termination of [the employee] was based on its investigation into his conduct and not his arrest record" (¶ 6).

    On review, the Labor and Industry Commission (LIRC) set aside the ALJ's determination and remanded the case for a hearing. The school district then challenged LIRC's decision in the circuit court. The circuit court agreed with LIRC that "the decision was not subject to judicial review under § 227.52 because it did not affect the substantial interests of the District (¶ 8)."

    The court of appeals, in an opinion authored by Chief Judge Cane, affirmed. "An agency decision that denies a motion to dismiss and requires a hearing on the merits is not an administrative decision within the meaning of the statute because at this point the party seeking review does not have substantial interests that have been adversely affected. Whether the agency has jurisdiction to proceed to a hearing may be challenged upon judicial review of the agency's final decision" (¶ 11). "Here, the Commission's decision is not final and, therefore, it is not subject to judicial review. The Commission made no decision that conclusively determined the further legal rights of the District. The Commission remanded the matter for further review on the merits, and as the circuit court correctly recognizes, the District `may ultimately prevail, and this opportunity for success on the merits supports the conclusion that the [Commission's] decision is interlocutory and not final.' The substantial rights of the District remain undetermined and will remain so until the administrative process has been completed in its entirety" (¶ 13).

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    Breach of Contract Action Against the State - Sovereign Immunity - Wis. Stat. Section 775.01

    Koshick v. State, 2005 WI App 232 (filed 8 Sept. 2005) (ordered published 28 Oct. 2005)

    Koshick sued the state of Wisconsin for breaching a contract to lease the Wisconsin State Fair Park to him for an event called the Milwaukee Metal Fest. He sought damages for lost profits and for expenses.

    The state, relying on the doctrine of sovereign immunity, moved to dismiss the complaint. The state argued that it has consented to suit under the limited circumstances described in Wis. Stat. section 775.01, which provides in part that "[u]pon the refusal of the legislature to allow a claim against the state the claimant may commence an action against the state..." (emphasis added). According to the state, the meaning of "claim" in the statute does not encompass the types of claims for which the plaintiff sought relief. The plaintiff argued that "claim" includes a claim for breach of contract seeking money damages and thus includes his breach of contract claim, in which he sought compensation for expenses he incurred in anticipation of holding the festival at the State Fair Park and for lost profits based on his anticipated share of revenues from the sale of food, beverages, merchandise, and tickets. The circuit court agreed with the state and dismissed the complaint. In a decision authored by Judge Vergeront, the court of appeals affirmed.

    Sovereign immunity derives from article IV, section 27 of the Wisconsin Constitution, which provides: "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." The state waives its sovereign immunity and consents to suit only as expressly directed by the legislature. The question before the court was whether section 775.01 expresses a legislative intent that the state may be sued for the breach of contract claim brought by the plaintiff.

    The court of appeals said that section 775.01 and its equivalent predecessors have been a part of Wisconsin statutory law since 1850, and their provisions have been interpreted in several decisions. An 1881 opinion construed a predecessor to section 775.01 in the following manner: "It is manifest from the language of the section, and from the whole chapter of which the section is a part, that the statute relates only to actions upon those ordinary claims against the state which, if valid, render the state a debtor to the claimant; and not to an equitable action ..." (¶ 8, quoting Chicago, Milwaukee & St. Paul Ry. Co. v. State, 53 Wis. 509, 10 N.W. 560 (1881)). In Trempealeau County v. State, 260 Wis. 602, 51 N.W.2d 499 (1952), the court gave more definition to the term "debtor" as the term is used to limit the types of claims authorized by the statute. The court turned to the definition of "debt" in Corpus Juris Secundum, according to which a "debt" is that for which an action for debt or indebitatus assumpsit will lie; and includes a sum of money due upon a contract, implied in law (see ¶ 9).

    "26 C.J.S. explains that [a] `debt,' for which an action of debt will lie, is `a specific sum of money which is due or owing from one to another.' 26 C.J.S. Debt § 1 (2001). An essential element of the action is that it is for a fixed and definite sum of money, or one that can readily be made fixed and definite, either from fixed data or agreement, or by mathematical computation or operation of law. Thus, an action of debt does not lie to recover unliquidated or unascertained damages. Further, the action cannot be maintained where the sum must be ascertained by resorting to extraneous evidence. However, an action for debt can be maintained for the reasonable value of goods and materials where goods are sold and delivered ... or where the terms of a contract furnish the means of ascertaining the exact amount due for specific articles or services. 26 C.J.S. Debt § 4 (2001)" (¶ 11).

    Applying these principles, the court of appeals concluded that "[the plaintiff's] breach of contract claim is plainly not an action on a debt. He is not seeking an amount due for goods or services that he has sold or delivered to the State; he is not, as was the plaintiff in Trempealeau, seeking money that the State has received that he asserts he is entitled to. The lost profits and the incurred expenses he seeks to recover are not liquidated; they cannot be readily determined from the terms of the alleged contract or from fixed data or mathematical computation" (¶ 12). Accordingly, the court held that the plaintiff's breach of contract claim seeking damages for lost profits and expenses is not a "claim" within the meaning of section 775.01.

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    Criminal Law

    "Great Bodily Harm" - Hearsay

    State v. Ellington, 2005 WI App 243 (filed 25 Oct. 2005) (ordered published 30 Nov. 2005)

    Ellington was convicted by a jury of causing great bodily harm. The court of appeals, in an opinion written by Judge Fine, affirmed the conviction. First, the court of appeals held that the trial judge properly instructed the jury that "great bodily harm" meant "serious bodily injury." On appeal the defendant had "argue[d] that this was error because without telling the jury the context of the phrase `other serious bodily injury,' the jury was free ... to find him guilty for acts that did not meet the great-bodily-injury threshold; in essence, he seeks to have the phrase `other serious bodily injury' limited by the preceding list [in the statutory definition], using a tool of statutory construction known as ejusdem generis" (¶ 6). The argument failed, however, because it rested on the erroneous "contention that the legislature intended the phrase `other serious bodily injury' to assume the coloration of the list of specific injuries that precede it. But that was not the legislature's intent" (¶ 7). The court rested its holding primarily on a 1978 decision that largely left the phrase "serious bodily injury" to the jury's construction.

    Second, the defendant's rights were not violated when the trial court permitted a detective to read excerpts of medical records that were already in evidence (see ¶ 12). Because the certified medical records had been received into evidence without objection, the lawyers were free to read them. "[The defendant] does not explain why any witness could not also read pertinent excerpts to the jury. Generally, the lawyer is the best reader in the courtroom, but there is no rule or doctrine that prevents the lawyer from asking a witness to read to the jury material that is in evidence" (¶ 13).

    Third, although trial counsel's "relevancy" objection did not preserve his confrontation objection, the court elected to analyze the alleged error in the context of ineffective assistance of counsel. The medical records were not testimonial hearsay within the meaning of Crawford v. Washington, 541 U.S. 36 (2004) (see the digests below of Hemphill and Savanh), but the defendant argued that their reading violated the rule announced in State v. Rundle, 166 Wis. 2d 715, 480 N.W.2d 518 (Ct. App. 1992). The court concluded, however, that the detective read only what was "clinical and nondiagnostic," a phrase that included the victim's descriptions of her injuries. In sum, trial counsel was not constitutionally ineffective (see ¶¶ 15-17).

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    Criminal Procedure

    Hearsay - Confrontation

    State v. Hemphill, 2005 WI App 248 (filed 7 Sept. 2005) (ordered published 30 Nov. 2005)

    Police were dispatched to an address to check out "trouble" and a possible "subject with gun." When they arrived, police saw a woman, C.F., who pointed at two people who were walking away and said, in effect, "That's them." The two people got into a car and drove off. Police later pulled them over and seized a sawed-off shotgun from the car. Hemphill was then arrested and charged with being a felon in possession of a firearm. C.F. did not testify at the trial, but police officers testified about her brief statement. Hemphill was convicted.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the defendant's conviction. The court rejected the claim that C.F.'s statement constituted "testimonial" hearsay that should have been excluded under Crawford v. Washington, 541 U.S. 36 (2004), because C.F. did not appear and was never subject to cross-examination. The statement was "spontaneous" and unsolicited by police; thus, it fell outside the sphere of "testimonial" hearsay that the Confrontation Clause protects against and that is now subject to Crawford's strictures. Yet because even nontestimonial hearsay is subject to the pre-Crawford test set forth in Ohio v. Roberts, 448 U.S. 56 (1980), the court also determined that C.F.'s statement fell within "firmly rooted" hearsay exceptions for present sense impressions or excited utterances, and therefore that the Roberts' "reliability" requirement was satisfied (see ¶¶ 8-15).

    Hearsay - Confrontation

    State v. Savanh, 2005 WI App 245 (filed 5 Oct. 2005) (ordered published 30 Nov. 2005)

    Savanh was charged with drug-related offenses. During the jury trial, an informant testified about statements made by the defendant's accomplice, who did not testify. The defendant was convicted. He appealed on the ground that the admission of this hearsay violated his confrontation right.

    The court of appeals, in an opinion written by Judge Nettesheim, affirmed. The court of appeals applied the analysis set forth in State v. Manuel, 2005 WI 75. First, the court determined that the testimony was admissible under the rules of evidence; specifically the hearsay fell within the exception for statements by coconspirators (see ¶ 15). Second, the court considered whether the hearsay was "testimonial," as that term was construed in Manuel and in Crawford v. Washington. The Sixth Amendment confrontation right, as construed in Crawford, restricts the prosecution's use of testimonial hearsay regardless of the rules of evidence, although the scope of "testimonial" hearsay remains unstable in the law. Manuel provided three varying formulations of testimonial hearsay as divined from Crawford. The court of appeals held that the hearsay that was attributed to the defendant's accomplice in this case fit within none of the three formulations largely because the accomplice was unaware of the informant's status as a government agent. In short, law enforcement "pressure" played no role in "producing" the hearsay (¶ 28).

    Although the hearsay was not testimonial within the reach of the Crawford rule, Manuel nonetheless mandates that such nontestimonial hearsay is still subject to the older rule set forth in Ohio v. Roberts, 448 U.S. 56 (1980). Applying the Roberts approach, the accomplice was plainly unavailable and the hearsay fell within a firmly rooted, reliable hearsay exception (¶ 31).

    Withdrawal of Plea - Misinformation About Maximum Sentence

    State v. Harden, 2005 WI App 252 (filed 4 Oct. 2005) (ordered published 30 Nov. 2005)

    The defendant was convicted of delivering cocaine and THC after he entered no contest pleas to the charges. The plea questionnaire, the court's plea colloquy, and apparently the pleadings all misinformed the defendant that he was subject to 19.5 years of imprisonment, when the correct potential prison time was 16 years. The court imposed consecutive sentences totaling three years of initial confinement and four years of extended supervision.

    The defendant subsequently moved to withdraw his pleas. At the postconviction hearing, he testified that he would not have accepted the plea agreement if he had known the correct maximum prison exposure was three and one-half years less than he was told. The circuit court found this testimony incredible as a matter of law and denied the motion.

    In a decision authored by Judge Peterson, the court of appeals reversed. For a no contest plea to be valid, it must be knowingly, voluntarily, and intelligently entered. A plea is not knowingly or voluntarily entered when the defendant enters the plea without knowledge of the penalties the court could impose. The appellate court concluded that in this case the defendant's pleas were not knowingly and voluntarily entered, because the state presented no evidence that the defendant knew the actual penalties that could be imposed for his crimes. The court of appeals further concluded that the defendant was not required to establish that the misinformation affected his plea decisions (see ¶¶ 1, 5-6). Accordingly, the court of appeals reversed the judgment and remanded the matter to the circuit court with directions to grant the defendant's motion to withdraw his pleas.

    Sentencing - Aggravating Factors

    State v. Montroy, 2005 WI App 230 (filed 30 Aug. 2005) (ordered published 28 Oct. 2005)

    The defendant pleaded guilty to charges of burglary and possession of cocaine with the intent to deliver. He then appealed from the judgments of conviction and an order denying his postconviction motion for sentence modification. Among the issues on appeal was the defendant's claim that the circuit court erred in considering at sentencing aggravating factors that were not proven beyond a reasonable doubt. Specifically, the defendant contended that "the court's use of the Wisconsin Sentencing Guidelines Worksheet in calculating his sentence and consideration of facts not found by the jury, such as the type of dwelling burglarized and whether children were present, violate the rules articulated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005)" (¶ 20).

    In a decision authored by Judge Peterson, the court of appeals affirmed. Said the court, "Blakely invalidated Washington's sentencing scheme that allowed courts to increase a sentence beyond the standard range if they found `substantial and compelling reasons' to do so. The Blakely Court applied the rule that, `other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' The Court held that the `statutory maximum' is `the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Because the sentencing court increased Blakely's sentence beyond the statutory maximum based on its own factual findings, the sentence violated Blakely's Sixth Amendment rights. The Blakely holding was applied to the federal mandatory sentencing guidelines in Booker. In Booker, the Court concluded that because the guidelines were mandatory and increased sentences based on additional facts found by a preponderance of the evidence, those guidelines were unconstitutional" (¶¶ 21-22) (citations omitted).

    The defendant contended that the reasoning of Blakely and Booker is applicable to his case and supports his conclusion that his Sixth Amendment rights were violated. However, the court said, "Blakely and Booker are implicated only when a sentencing court considers a `fact that increases the penalty for a crime beyond the prescribed statutory maximum.' Here the court considered facts not found by the jury when considering the length of [the defendant's sentence] within the statutory limits, not to increase those limits" (¶ 23) (citations omitted).

    The defendant also argued that the distinction between the mandatory guidelines rejected in Booker and Wisconsin's advisory guidelines is irrelevant because "the end result ... is exactly the same." Rejecting this argument, the court of appeals turned to the following language of Booker: "If the [federal] Guidelines as currently written could be read as merely provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range" (¶ 24) (citations omitted).

    Search and Seizure - Terry Frisks - Shaking Waistband of Defendant's Pants

    State v. Triplett, 2005 WI App 255 (filed 9 Nov. 2005) (ordered published 21 Dec. 2005)

    Police officers discovered cocaine during a Terry frisk of the defendant for weapons. The search occurred while the police were present in a residence to investigate complaints about drug dealing. The cocaine fell out of the defendant's pants leg when one of the officers gripped his belt loops and shook the waistband of his pants.

    Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may frisk an individual if the officer reasonably believes that the person may have a weapon. In this case the defendant did not argue that the officers lacked reasonable suspicion to conduct the frisk. Rather, he contended that shaking the waistband of his pants went beyond the scope of a permissible Terry frisk.

    The officer who conducted the frisk said that he found it difficult to "get a good feel for that area" [the defendant's waist] because of the defendant's large frame and the amount of clothing he was wearing. The defendant was wearing a winter coat that hung slightly below the waist, and his stomach hung slightly over the waistband. The officer said that he thought he could conduct a better patdown if he first loosened any weapons that might be hidden in the waistband, and so he tugged on the defendant's belt loops and gave the waistband a few shakes. A clear plastic bag containing cocaine then dropped from the bottom of the defendant's right pants leg (see ¶ 5).

    In a decision authored by Judge Brown, the court of appeals concluded that the officer's manipulation of the defendant's waistband was a minimally intrusive exploration of his outer clothing and that it was designed to discover whether the defendant had a weapon. "The prevailing rule seems to be that an officer is entitled not just to a patdown but to an effective patdown in which he or she can reasonably ascertain whether the subject of the patdown has a weapon; where an effective patdown is not possible, the officer may take other action reasonably necessary to discover a weapon" (¶ 12).

    Applying these principles the court held that "the officer limited his degree of interference with [the defendant's] person to what was reasonably necessary under the circumstances. The officer could not tell whether [the defendant] had any objects hidden in his waistband because of [the defendant's] bulky frame and heavy clothing. In other words, the officer could not get an effective pat-down. In concluding that his alternative to the patdown was reasonable, we make two observations. First, the officer testified that he shook [the defendant's] waistband by his belt loops in order to loosen any possible weapons, so as to make the patdown effective. The fact that he acted with the intent to facilitate a traditional patdown supports that he only sought to discover any possible weapons. Second, we note that shaking a waistband by tugging on a belt loop confines the alternative method of looking for weapons to manipulating the outer clothing. Thus, although it may not qualify as a patdown, it is highly similar. Indeed, one might argue that it intruded less upon the sanctity of [the defendant's] person than a traditional patdown" (¶ 14).

    Deferred Prosecution Agreements - No Contest Plea as Component of Agreement

    State v. Daley, 2005 WI App 260 (filed 22 Nov. 2005) (ordered published 21 Dec. 2005)

    The defendant was charged with recklessly endangering safety and disorderly conduct. Negotiations with the state led to a deferred prosecution agreement according to which the defendant would plead no contest to the two charges, the case would be suspended, and entry of the judgment of conviction would be stayed. If the defendant complied with the agreement, the state would move to dismiss the charges. The circuit court approved the agreement, accepted the defendant's pleas, and then suspended proceedings according to the agreement.

    After the defendant allegedly engaged in further criminal activity, the state petitioned for termination of the deferred prosecution agreement. At a hearing the court found that the defendant had violated the agreement. The court revoked the agreement and found the defendant guilty of the two crimes to which he had pleaded no contest. After denying defense motions to vacate the no contest plea and finding of guilt, the court proceeded to sentencing. It withheld sentence and placed the defendant on probation.

    One of the defendant's arguments on appeal was that the deferred prosecution agreement that resulted in his convictions was statutorily infirm and that the convictions that followed its revocation cannot be maintained. He implied that requiring a plea as part of the agreement is not permitted because it is not specifically authorized by Wis. Stat. section 971.37, which governs these agreements. In a decision authored by Judge Hoover, the court of appeals disagreed. Said the court, "the legislature plainly contemplated that parties would negotiate appropriate conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(1m)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the sole components" (¶ 9).

    Responding to the defendant's argument that it is bad policy to allow the state to require a plea as part of a deferred prosecution agreement, the court characterized such policy as "actually quite efficient" (¶ 13). "Requiring a plea allows the State to avoid trial but still allows the defendant to avoid the conviction if he or she complies with the agreement. In that sense, it provides an even greater benefit to a defendant than a traditional plea agreement, provided the defendant fulfills the agreement's terms" (id.).

    Truth-in-Sentencing - Reconfinement Proceedings Following Revocation of Extended Supervision

    State v. Jones, 2005 WI App 259 (filed 2 Nov. 2005) (ordered published 21 Dec. 2005)

    The defendant appealed from an order for reconfinement that was made after the extended supervision component of his bifurcated sentence was revoked. He argued that the circuit court failed to provide a sufficient rationale for the reconfinement sentence, and that the court was required to review the original sentencing transcript and presentence investigation report before ruling on reconfinement.

    The reconfinement hearing was held before a different judge than the one who originally sentenced the defendant. At the reconfinement hearing defense counsel and the defendant presented statements to the court concerning the defendant's achievements since his original sentencing. The court referenced the original offense and sentence, the time available for reconfinement, and the recommendation of the Department of Corrections (reconfinement for seven months and six days). The court also specifically referenced the defendant's numerous extended supervision violations. It ultimately concluded, "It just seems that the defendant is unwilling to be supervised in the community. And unfortunately what that reflects is that if he's going to rehabilitate himself, it's going to have to be done in a structured confined setting." The court ordered the defendant reconfined for a period of two years (see ¶ 4).

    In a decision authored by Judge Snyder, the court of appeals affirmed. It concluded that the circuit court exercised its discretion based on facts that are of record or that are reasonably inferable from the record and imposed a reconfinement sentence that is founded on proper legal standards. In a footnote the court of appeals encouraged sentencing courts imposing reconfinement sentences to make complete records of the underlying facts, the sentencing objectives, and how the sentences imposed fulfill those objectives (see ¶ 15 n.5).

    The defendant also contended that the circuit court failed to review the original sentencing transcript and presentence investigation report prior to ordering reconfinement and thereby violated State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165. The Reynolds court held that when the "record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in ... the withholding of sentence, resentencing is appropriate." Reynolds, 2002 WI App 15, ¶2. "We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In Reynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first time after revocation of Reynolds's probation. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject [the defendant's] arguments to the contrary" (¶ 13) (citation omitted).

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    Employment Law

    Whistleblower Statute - Personnel Commission - Loss of Jurisdiction When Federal Lawsuit Filed

    Albrechtsen v. Wisconsin Dep't of Workforce Dev., 2005 WI App 241 (filed 13 Oct. 2005) (ordered published 30 Nov. 2005)

    This case involved Wisconsin's whistleblower statutes. "Wisconsin Stat. ch. 230 provides protections for state employees who engage in `whistleblowing,' which is the disclosure of `information gained by the employee which the employee reasonably believes demonstrates ... [a] violation of any state or federal law, rule or regulation ... [or] [m]ismanagement or abuse of authority in state or local government, a substantial waste of public funds or a danger to public health and safety.' Wis. Stat. § 230.80(5); see § 230.81(1). Specifically, a state employing unit may not `initiate or administer, or threaten to initiate or administer, any retaliatory action against an employee' who `lawfully disclosed information ... or filed a complaint' alleging a violation of the whistleblower statutes" (¶ 2).

    The plaintiff, a University of Wisconsin employee, commenced an action in federal court alleging a violation of Wis. Stat. section 230.83(1) (prohibiting retaliation for whistleblowing). The Wisconsin Personnel Commission concluded that it thereby lost jurisdiction over the plaintiff's earlier complaint to the commission alleging the same violation. The circuit court affirmed the commission's decision, and the plaintiff appealed. [Editors' Note: When the plaintiff filed his complaint and the commission dismissed it, Wis. Stat. section 230.85 (2001-02) provided that complaints of violations of the whistleblower statutes were to be filed with the commission. After the commission issued the decision under review in this litigation, the commission's responsibilities under section 230.85 were transferred to the Equal Rights Division in the Department of Workforce Development. See ¶ 1 n.1.]

    In a decision authored by Judge Deininger, the court of appeals affirmed. On the jurisdiction issue, one of several issues raised on this appeal, the court turned to section 230.88(2)(c), which provides in part that upon an employee's commencement of an action in a court of record alleging matters prohibited under section 230.83(1), the commission "has no jurisdiction to process a complaint filed under s. 230.85 except to dismiss the complaint ..." (emphasis added). The court of appeals agreed with the argument of the commission and the university that "the plain meaning of the statutory language emphasized above can lead to no other conclusion but that the Commission lost its subject matter jurisdiction over [the plaintiff's] whistleblower complaint once he filed an action in the federal district court that included allegations of state whistleblower violations" (¶ 10). [Editors' Note: The federal lawsuit ended up being dismissed without prejudice after the state challenged the court's jurisdiction and the plaintiff filed a motion to dismiss.]

    Judge Vergeront filed a dissenting opinion.

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    Family Law

    Adoption - Effect of Adoption on Child Support Arrearage

    Hernandez v. Allen, 2005 WI App 247 (filed 12 Oct. 2005) (ordered published 30 Nov. 2005)

    "The issue raised in this case is one of first impression in Wisconsin: whether an order for adoption extinguishes the former parent's support arrearage" (¶ 1). The respondent owed past-due child support; he had been ordered to pay child support at the time he and his wife divorced. He argued that the arrearage was extinguished when the child was adopted by her stepfather following a voluntary termination of the respondent's parental rights. The respondent relied on Wis. Stat. section 48.92(2), which provides that "[a]fter the order of adoption is entered the relationship of parent and child between the adopted person and the adopted person's birth parents ... shall be completely altered and all the rights, duties and other legal consequences of the relationship shall cease to exist."

    In a decision authored by Judge Nettesheim, the court of appeals rejected the respondent's position. The court held that, "when read as part of a cohesive whole, Wis. Stat. § 48.92(2) does not relieve a birth parent of the obligation to pay child support arrearages for which he or she became liable before such parent's parental rights were terminated. The statute contemplates a point in time at which, from then on, the legal status of the adoptive parent(s), birth parent(s) and adopted child are completely altered. It does not offer relief for a child support obligation incurred prior to the termination of the obligor parent's parental rights" (¶ 27).

    Divorce - Pension Benefits

    Dahm v. City of Milwaukee, 2005 WI App 258 (filed 22 Nov. 2005) (ordered published 21 Dec. 2005)

    Dahm (the husband) married his first wife in 1978, and they were divorced in 2001. The husband married again in 2002. He died in 2003. The second wife brought this declaratory judgment action seeking a declaration that she alone was entitled to the husband's pension benefits. The former wife argued that as the husband's "first wife" and the designated beneficiary of his pension benefits, she was entitled to the pension. The circuit court ruled that the second wife was entitled to the benefits.

    The court of appeals, in an opinion written by Judge Fine, affirmed. "As material here, §§ 854.15(3)(a) and (5)(f) provide that `a divorce ... [r]evokes any revocable disposition of property made by the decedent to the former spouse,' unless `[t]here is a finding of the decedent's contrary intent. Extrinsic evidence may be used to construe that intent.' Thus, § 854.15(3)(a) creates a presumption that a divorce severs the former spouse's interest in a `disposition of property made by the decedent to the former spouse' if, under the instrument, the disposition was `revocable' by the decedent when he or she was alive" (¶ 5).

    Without dispute, the second wife established the basic facts of the presumption, and so the former wife acquired the burden of proving the nonexistence of the presumed fact. Namely, the former wife had to prove that the husband had not revoked the former wife's designation as beneficiary, and she failed to carry her burden. The court carefully reviewed the record presented and found the former wife's proof insufficient to overcome the presumed fact.

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    Duty to Defend - Educational Employment

    Employers Mut. Cas. Co. v. Horace Mann Ins. Co., 2005 WI App 237 (filed 25 Aug. 2005) (ordered published 30 Nov. 2005)

    The court of appeals, in an opinion written by Judge Dykman, affirmed the circuit court's holding that Horace Mann Insurance Co. had no duty to defend or indemnify a county in two civil cases involving teacher misconduct. The court of appeals held that the teacher's conduct - alleged sexual battery - did not fall within the insurer's policy coverage for damages incurred in the course of the insured's educational employment activities.

    "Here, the provision is not ambiguous because `educational employment activities' is defined within the policy and the definition excludes the alleged misconduct for which [the teacher] was sued. ... In applying the policy to [the teacher's] alleged conduct, we conclude that [the teacher's] alleged conduct did not constitute `activities ... performed pursuant to the express or implied terms of his ... employment,' the contract's definition of `educational employment activities'" (¶ 9). Although "student interactions" fall within the broad terms of a teacher's employment, "[g]roping and bruising cannot be said to be within the terms of [the teacher's] employment, even though the conduct may involve student interaction" (¶ 10).

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    Motor Vehicle Law

    OWI - "Driving with a Detectable Amount of a Restricted Controlled Substance"

    State v. Smet, 2005 WI App 263 (filed 9 Nov. 2005) (ordered published 21 Dec. 2005)

    The defendant appealed from a judgment of conviction for operating a motor vehicle with "a detectable amount of a restricted controlled substance" in his blood, contrary to Wis. Stat. section 346.63(1)(am) (2003-04). On appeal he challenged the constitutionality of this statute. He contended that it exceeds the scope of the legislature's police power and thereby violates the constitutional guarantees of due process, fundamental fairness, and equal protection.

    With regard to due process and fundamental fairness, the defendant argued that Wis. Stat. section 346.63(1)(am), which requires only proof of "a detectable amount" of a banned substance and not proof of impairment, represents an unconstitutional overstep by the legislature in the exercise of its police power. In an opinion authored by Judge Nettesheim, the court of appeals disagreed. The court held that the police power is the inherent power of the government to promote the general welfare and covers all matters having a reasonable relation to the protection of the public safety, health, and general welfare. When the exercise of the police power is challenged on due process grounds, the test is whether the means chosen have a reasonable and rational relationship to the purpose or object of the enactment. If they do, and the object is a real and proper one, the exercise of the police power is valid (see ¶ 7).

    The court of appeals concluded that "[the defendant] has not shouldered his heavy burden of demonstrating unconstitutionality beyond a reasonable doubt. Indisputably, regulating the safety of our roadways is a proper exercise of the police power. We hold that the per se ban on driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in one's blood, as set out in Wis. Stat. § 346.63(1)(am), bears a reasonable and rational relationship to that goal and is not fundamentally unfair, such that we see no due process violation. We also hold that the statute does not offend principles of equal protection since [the defendant] has not established that the statute either interferes with a fundamental right or operates to the peculiar disadvantage of a suspect class. His constitutional challenges to § 346.63(1)(am) fail" (¶ 30).

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    Property Law

    Condemnation - Leases

    Wisconsin Mall Props. LLC v. Younkers Inc., 2005 WI App 261 (filed 1 Nov. 2005) (ordered published 21 Dec. 2005)

    The city unsuccessfully attempted to negotiate terms of a "friendly condemnation" before it commenced a condemnation proceeding under Wis. Stat. section 32.05. In what the court of appeals described as a "novel" and "unique" approach, the city condemned not only the property but also the mall's lease to Younker's department store (Saks). "Generally, when a leased property is condemned the lease will terminate in the absence of an agreement to the contrary. However, we are unable to identify, and the parties fail to provide, a case citation in any jurisdiction involving the condemnation of property and also the lessor's rights under a lease" (¶ 6). Here the mall argued that "the condemnation of the lease does not preclude it from seeking breach of contract damages in circuit court, particularly because it began its suit for breach of contract prior to the condemnation. [The mall] contends that Saks breached the le ase by colluding with the City in the condemnation and by failing to pay the Mall the amount Saks owed under the lease" (¶ 7).

    The court of appeals, in an opinion written by Chief Judge Cane, affirmed the circuit court's dismissal of the mall's breach of contract claim against Saks. The mall's contentions failed to account for the law of eminent domain. Once the city replaced the mall as the lessor, the mall could not purse its breach of contract action, "even an action that it began prior to the condemnation, under a lease in which it no longer has any interest" (¶ 9). The damages sought by the mall in the breach of contract action were the very damages compensated in the condemnation award (see ¶¶ 11-12). "Since the Mall must appeal the award of compensation through the procedures in Wis. Stat. §§ 32.05(9) or 32.05(11), the condemnation commission or the circuit court must consider the terms of the lease and Saks' alleged default when conducting its inquiry into the sufficiency of the award of compensation. Failing to do so would permit a party, through an invited or collusive condemnation by a municipality, to avoid its obligations set forth in a contract" (¶ 13).

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    Recreational Immunity - Volunteer

    Rintelman v. Boys & Girls Clubs of Greater Milwaukee Inc., 2005 WI App 246 (filed 25 Oct. 2005) (ordered published 30 Nov. 2005)

    Rintelman volunteered to chaperone an event for children held at a camp owned by a boys and girls club. She fell and was injured while she walked from one building to another in order to use the showers and bathroom. Although the plaintiff contended that her walk was "utilitarian only" ("to get from here to there") (¶ 4), the circuit court granted summary judgment to the defendant and dismissed the claim as barred by the recreational use immunity statute, Wis. Stat. section 895.52.

    The court of appeals, in an opinion written by Judge Fine, reversed. This long, prolix statute has made it difficult for courts to articulate any meaningful standard for when recreational immunity is appropriate; rather, courts are forced to consider a wide range of factors. In this case, the court analyzed seven factors. The plaintiff was "walking," but she was not walking for "exercise" or "to enjoy the scenery" but rather only to move from one building to another, an activity that is not "inextricably connected to an activity that is recreational" (¶ 13). For summary judgment purposes, there was no evidence that the plaintiff was at the camp "to participate in [any] recreational activity" (¶ 13). Indeed, the record was "devoid" of any proof that the plaintiff had participated in any recreational activities, planned or unplanned, while serving as a volunteer chaperone (¶ 17). Several factors did favor immunity, particularly the nature of the property - a rural camp - and the owner's intent that the camp's predominant purpose be for recreational activities (see ¶¶ 15-16). On balance, however, the defendants had not carried their burden on summary judgment of proving the applicability of section 895.52 (see ¶ 18).

    Res Ipsa Loquitor - Instructions - Waiver - Ostensible (State) Agent

    Suchomel v. University of Wis. Hosp. & Clinics, 2005 WI App 234 (filed 20 Oct. 2005) (ordered published 30 Nov. 2005)

    A doctor was found liable for medical malpractice arising from back surgery that he performed on Suchomel. On appeal the doctor's prime contention was that the trial judge's res ipsa loquitur jury instruction was erroneous because the "instrumentality" that caused Suchomel's injuries was not in his exclusive control. He also alleged that the judge erred by amending the pleadings after the verdict and awarding damages to Suchomel's husband.

    The court of appeals, in an opinion written by Judge Higginbotham, affirmed. It held that the doctor waived any objection to error in giving of the instruction by failing to object in motions after verdict. The doctor contended, apparently without dispute, that he had objected to the instruction during the jury instruction conference, as required by Wis. Stat. section 805.13(3), but he conceded that he had not renewed the objection by a motion after verdict. The court of appeals said that case law establishes that "a party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. We see no reason why this rule should not apply to an asserted jury instruction error" (¶ 11).

    Nor did the trial court err when it amended the pleadings after the jury verdict. The original complaint contained a claim for past and future medical expenses for Suchomel. After the trial, her husband filed a motion adding a claim for past and future medical expenses and costs. The trial judge ruled that the defendants had an opportunity to challenge the husband's claim for his wife's medical expenses and did not suffer prejudice by the amendment (see ¶ 15). The issue had been tried by the "implicit consent of all parties" (¶ 16). Moreover, defense counsel conceded that his presentation of the case would not have been affected in any way (see ¶ 17).

    In their cross-appeal, the plaintiffs argued that error occurred when the trial court, relying on Wis. Stat. section 233.17(2), precluded their claim that the doctor acted as an ostensible agent of the UW Hospital. "The plain language of Wis. Stat. § 233.17(2)(b) prevents a faculty member from being deemed an agent of UW Hospital, either ostensibly or in fact. ... [B]ased on the unambiguous language of this statute, if Resnick is either a faculty member or academic staff of the University of Wisconsin System and was acting within the scope of his employment when he negligently performed surgery on [Suchomel], then he was not acting as `an agent of the authority,' ostensibly or otherwise" (¶ 26). The statute's very purpose was to "avoid liability" for the UW Hospital and it encompasses "all forms of agency" (¶ 29).

    Public Nuisance - Safe Place

    Holt v. Hegwood, 2005 WI App 257 (filed 4 Oct. 2005) (ordered published 21 Dec. 2005)

    Holt was allegedly injured and his car damaged when a tree branch fell during a windy day. The incident occurred in an apartment driveway where Holt and his cousin were washing a car. Holt sued the apartment building's owner (Hegwood) and the owners of the adjacent property, on which the tree stood. The circuit court dismissed Holt's public nuisance and safe-place statute claims.

    The court of appeals, in an opinion written by Judge Kessler, affirmed. First, the public nuisance claim was properly dismissed. The circuit court properly refused to take judicial notice that a specific city ordinance regulating trees and shrubs created a private cause of action. Nothing in the ordinance suggested that the city council intended to create a private cause of action in addition to the fines assessed for violations. Nor was there evidence to prove that the ordinance itself had been violated in this case. "Holt has presented no evidence that the alleged neglect of a single tree had any effect on the use of a public place or on the entire community's activities. In the absence of this evidence, the trial court properly granted summary judgment in the defendants' favor on the public nuisance issue" (¶ 18).

    Second, the safe place claim was also properly dismissed. "The statute applies to employers, to owners of places of employment and to owners of public buildings. It does not create liability for purely private property not owned by an employer, on which no employment occurs, and which is not open to the public" (¶ 19). There was no evidence that Hegwood was an employer or that the building was a "place of employment." Nor was there evidence that it was even a "public building." "There is nothing in the record that indicates three or more tenants occupy the building, or that it is a place to which the public generally has access. In short, the existing record establishes nothing more than that a tree, located on private property, lost a limb that also landed on private property. That, as the trial court correctly concluded, is insufficient to permit a jury to consider whether there was a violation of the safe place statute" (¶ 22).

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    Charitable Trusts - Amendment of Administrative Provisions

    League of Women Voters v. Madison Cmty. Found., 2005 WI App 239 (filed 13 Oct. 2005) (ordered published 30 Nov. 2005)

    The circuit court approved a petition by a foundation to amend an administrative provision of its charitable trust instrument pursuant to the trust's grant of power to its board of governors to make such amendments. The court determined that Wis. Stat. section 701.10(2)(b), which utilizes a more demanding standard than that called for in the trust instrument, did not apply to the foundation's request.

    Trust instruments have two types of provisions, dispositive and administrative. Dispositive provisions may name beneficiaries, determine the amount or size of the financial benefits the beneficiaries will receive, and state the purpose of the trust. Administrative provisions govern how the trust is managed to accomplish its purpose (see ¶ 6).

    This case involved the proposed amendment of the administrative provisions of a charitable trust. Section 701.10(2)(b) authorizes courts to modify administrative provisions of charitable trust instruments under certain circumstances: "If any administrative provision of a charitable trust or part of a plan set forth by the settlor to achieve the settlor's charitable purpose is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision or plan will enable the trustee to achieve more effectively the basic charitable purpose, the court may by appropriate order modify the provision or plan."

    The appellant argued that this statute applies to the proposed trust amendment in this case because the statute applies to all amendments to administrative provisions of charitable trust instruments. In a decision authored by Judge Lundsten, the court of appeals disagreed. Said the court, "[n]othing in the text of Wis. Stat. § 701.10(2)(b) suggests that it overrides the provisions of a trust. Simply put, if a trust instrument provides a specified procedure for altering administrative provisions of the trust, there is no reason to suppose the legislature intended that § 701.10(2)(b) be used to override such a procedure" (¶ 7).

    Judge Dykman filed a dissenting opinion.

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    Worker's Compensation

    Injury Caused by Occupational Disease - Absence of Identifiable Traumatic Injury-causing Event

    Wisconsin Ins. Sec. Fund v. Labor & Indus. Review Comm'n, 2005 WI App 242 (filed 20 Oct. 2005) (ordered published 30 Nov. 2005)

    The employee began working for a cheese factory in 1985. His job involved manually cutting and stacking cheese blocks that weighed about 35 pounds apiece. In 2000 he was diagnosed with a herniated disk and degenerative disk disease. He now suffers a 15 percent permanent partial disability as a result of these back problems.

    In this worker's compensation proceeding, the Labor and Industry Review Commission (LIRC) concluded that the employee suffered a compensable occupational disease injury as a result of repetitive strenuous job activity over an extended period of time. The circuit court and the court of appeals agreed.

    "Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. An accidental injury is one that 'results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person.' An occupational disease injury is an injury that is 'acquired as the result and an incident of working in an industry over an extended period of time'" (¶ 10) (citations omitted). This case involved an occupational disease injury and the parties disputed whether a back injury caused by job activity, but not caused by one or more identifiable traumatic events, is a compensable occupational disease injury within the meaning of Wis. Stat. section 102.03(1)(e).

    In a decision authored by Judge Lundsten, the court of appeals concluded that "a compensable occupational disease injury may occur when an injury is caused by job activity over a period of time, regardless whether there are identifiable traumatic injury-causing events" (¶ 16). The court of appeals thus affirmed LIRC and the circuit court on this issue. (The court of appeals reversed LIRC and the circuit court on a reimbursement issue not discussed here.)

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