Airports Commercial Law Criminal Process Evidence

Open Meetings Law Open Records Law Worker's Compensation Law

Airports

County of Milwaukee v. Williams, 2007 WI 69 (filed 12 June 2007)

The defendants were found guilty of picking up passengers in their taxis at Milwaukee County's General Mitchell International Airport without an airport permit, contrary to Milwaukee County Ordinance 4.05. Under this ordinance taxis are required to have airport permits to pick up passengers either after being hailed or on a prearranged or prereserved basis. Limousines, however, are not required to have a permit in order to pick up customers on a prearranged basis.

The defendants argued that the county ordinance conflicts with Wis. Stat. section 114.14(3)(b)1., which provides that "[t]he public may in no case be deprived of equal and uniform use of the airport." In a majority decision authored by Justice Bradley, the supreme court agreed with the taxi operators. The court said the critical issue was whether Milwaukee County may enact an ordinance that prohibits taxis without airport permits from making prearranged pickups of customers but that allows limousines without permits to make such pickups (see ¶ 16). "[W]e determine that Ordinance 4.05, which prohibits taxis without Airport permits from making prearranged pickups, conflicts with the requirement under § 114.14 that the public have equal access to airport services, and to that extent is invalid and unenforceable" (¶ 64).

The court rejected other challenges to the ordinance that were advanced by the defendants. "[W]e conclude that the requirement under Ordinance 4.05 that taxis have one of a limited number of permits in order to do business at the Airport does not conflict with Wis. Stat. §§ 133.01, 349.24, or 194.02. Section 133.01 [the statement of legislative intent for the Trusts and Monopolies chapter of the Wisconsin Statutes] does not give rise to an independent cause of action, § 349.24 [authority of city councils and village and town boards to regulate and license taxis] does not apply to counties or airports, and taxis are explicitly excluded from the scope of chapter 194 [regulations dealing with motor carrier operations]" (¶ 62).

Justice Prosser filed a dissenting opinion that was joined by Justice Butler.

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Commercial Law

K&S Tool & Die Corp. v. Perfection Machinery Sales Inc., 2007 WI 70 (filed 12 June 2007)

K&S, a tool and die company, provided production stamping services. To fulfill a particular contract, it needed a 1,000-ton press that could stamp steel with one hit (instead of a press with less force that would make multiple hits). K&S contacted an Illinois company, Perfection, which eventually located an ostensibly suitable press in Michigan. Perfection purchased the press and sold it to K&S. The new press, however, failed to stamp the pieces in one hit. K&S later learned that it had unknowingly purchased an 800-ton press that had been converted from a 1,000-ton press. K&S sued Perfection under Wisconsin's Deceptive Trade Practices Act (DTPA), Wis. Stat. § 100.18. A jury returned a verdict in favor of K&S, and the court of appeals affirmed.

The supreme court, in an opinion authored by Justice Wilcox, affirmed the court of appeals. The court addressed two issues. First, Perfection contended that as a matter of law K&S was not a member of the "public" for purposes of Wis. Stat. section 100.18(1). The DTPA does not define the term the public. Case law has eschewed any bright-line approach in favor of a fact-intensive analysis with special emphasis on whether the parties have a "particular relationship" (see ¶¶ 24, 27). The cases also hold that "the substance of a representation made to induce an obligation, rather than the form of the initial contact, has more significance in determining whether a plaintiff is a member of `the public' for the purpose of § 100.18(1)" (¶ 25). Moreover, once a party enters into a contract to purchase the offered item he or she is no longer a member of the public for purposes of the DTPA.

On this record, however, the trial judge reasonably left this fact-intensive determination to the jury. For example, "a jury could reasonably find that K& S was a member of `the public' when Perfection faxed the quotation…. Evidence supporting this finding includes that Perfection held itself out as having `the country's largest inventory of used late model presses, fabricating & metalworking equipment,' according to its quotation. Given the nature of Perfection's business as an industry leader, the jury could reasonably infer that K& S contacting Perfection for a used press would not be a sufficient fact to create a particular relationship. Additionally, K& S bought the roll former from Perfection back in 1996, but had purchased nothing else either before or after that purchase. The purchase could be construed as too isolated to establish a particular relationship"(¶ 32).

Second, the court also held that sufficient evidence supported the jury's finding that Perfection's misrepresentation caused a pecuniary loss. Causation under the DTPA only "requires a showing of material inducement" (¶ 35). The plaintiff's "reasonable reliance" may be relevant evidence to prove material inducement, but the plaintiff need not establish reasonable reliance as an element of a DTPA claim (see ¶ 36). On this matter, too, the record abundantly supported the jury's finding in favor of K&S.

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Criminal Process

State v. Post, 2007 WI 60 (filed 23 May 2007)

In this case the court considered whether a traffic stop, which resulted in the arrest and ultimately the conviction of the defendant for a fifth offense of operating while under the influence, violated the defendant's Fourth Amendment rights because it was not based on reasonable suspicion. The focus of the appeal was on the evidence that the defendant's vehicle weaved within a single traffic lane and the extent to which such weaving can support reasonable suspicion to justify an investigative stop.

In a majority decision authored by Justice Bradley, the supreme court concluded that "weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle" (¶ 2). In so holding, the court rejected the state's request for a bright-line rule that repeated weaving within a single lane provides the reasonable suspicion necessary to justify a traffic stop (¶ 14). "[T]he State's proffered bright-line rule is problematic because movements that may be characterized as `repeated weaving within a single lane' may, under the totality of the circumstances, fail to give rise to reasonable suspicion. This may be the case, for example, where the `weaving' is minimal or happens very few times over a great distance" (¶ 19).

The court also rejected the defendant's proposed bright-line rule that movements within a lane can give rise to the reasonable suspicion necessary to justify an investigative stop only in circumstances in which the movements are erratic, unsafe, or illegal (see ¶ 22). "We ... determine that a driver's actions need not be erratic, unsafe, or illegal to give rise to reasonable suspicion" (¶ 24).

Instead of adopting a bright-line rule, the court approached this case using "the well-established principle that reviewing courts must determine whether there was reasonable suspicion for an investigative stop based on the totality of the circumstances" (¶ 26). While acknowledging that the facts in this case presented "a close call," the majority concluded that the officer did have reasonable suspicion to stop the defendant's vehicle. "[The defendant's] vehicle moved in a discernible S-type pattern within that single lane, and it repeated that S-type pattern several (or `a few') times for two blocks" (¶ 36). The officer's testimony indicated that the width of the defendant's weave was between five and nine feet (see ¶ 35). (The lane itself is 22 to 24 feet wide, which is twice the width of a standard single lane (see ¶ 36).) "When [the officer] first observed [the defendant's] vehicle, it was `canted into the parking lane' and `wasn't in the designated traffic lane.' Finally, we note that the incident took place at 9:30 at night. While this is not as significant as when poor driving takes place at or around `bar time,' it does lend some further credence to [the officer's] suspicion that [the defendant] was driving while intoxicated" (id.).

Chief Justice Abrahamson filed an opinion concurring in part and dissenting in part. The source of her disagreement with the majority resided in the latter's application of the totality of the circumstances standard to the facts of this case (see ¶ 44).

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Evidence

State v. Nelis, 2007 WI 58 (filed 22 May 2007)

A jury convicted Nelis of sexual assault and other felonies. The primary issue on appeal concerned the state's introduction of prior inconsistent statements attributed to a prosecution witness, Stone. Stone and Nelis were friends. When Stone's memory faded at trial, the state called several police officers who testified that Stone made oral and written statements that more directly incriminated Nelis. The court of appeals affirmed his conviction.

The supreme court, in an opinion written by Justice Crooks, affirmed the court of appeals and addressed both evidentiary issues and the confrontation right. Prior inconsistent statements are subject both to impeachment and to exclusion under the hearsay doctrine. On appeal Nelis contended that he had not been afforded the opportunity to cross-examine Stone about a prior statement to police, as required by Wis. Stat. section 906.13, but the court held that Nelis's "hearsay" objection did not preserve this issue for appeal (see ¶ 31). (Addressing a related discovery issue, the court also held that Wis. Stat. section 971.23 does not require the state to summarize oral statements made by witnesses to police.) Finally, the court held that Stone's out-of-court statements to police officers were inconsistent with his trial testimony and thus admissible under Wis. Stat. section 908.01(4)(a).

Turning to the confrontation issue, the court held that Stone's out-of-court statements to officers were definitely "testimonial" within the meaning of the rule of Crawford v. Washington, 541 U.S. 36 (2004) (see ¶ 42), but because Stone testified as a witness, subject to cross-examination, as did the police officers who interviewed Stone, Nelis's confrontation right was fulfilled. The twist here was that the prosecutor never examined Stone about his alleged oral statements to police before Stone "stepped down" as a witness. In effect, the defense argued that the confrontation right required such a foundation before the state could introduce Stone's alleged prior inconsistent statement through the police officers' testimony. The court held, however, that Stone's presence as a witness satisfied the confrontation right. In dicta, the court further explained that the record did not establish that Stone was "unavailable" and could not have been recalled by either party after Stone "stepped down" (¶ 47).

In a concurring opinion, Justice Bradley, joined by Chief Justice Abrahamson, wrote separately to stress that this case involved only evidentiary, not constitutional (confrontation), issues involving prior inconsistent statements. The concurrence focused on the foundational requirement that there be a prior opportunity to cross-examine the witness about alleged inconsistent out-of-court statements (which in turn requires meaningful notice that such statements were made).

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Open Meetings Law

State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71 (filed 13 June 2007)

This issue in this case was whether the Tomah Board of Education provided adequate notice under the Wisconsin Open Meetings Law regarding the agenda for two of its meetings. Wis. Stat. section 19.84(2) provides in relevant part as follows: "Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof…." Though this statute has been a part of Wisconsin law for more than 30 years, the supreme court has not previously had the opportunity to address the degree of specificity required in identifying the subject matter of a meeting in order to comply with the statute's notice provision.

In a majority decision authored by Justice Bradley, the court concluded that "the plain meaning of Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and that such a standard strikes the proper balance contemplated in Wis. Stat. §§ 19.81(1) and (4) between the public's right to information and the government's need to efficiently conduct its business" (¶ 3). "The reasonableness standard requires taking into account the circumstances of the case in determining whether notice is sufficient. This includes analyzing such factors as the burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate" (¶ 28).

Applying this standard the court found inadequate the board's notice of a meeting to be held on June 1, 2004. The notice announced a "[c]ontemplated closed session for consideration and/or action concerning employment/negotiations with District personnel pursuant to Wis. Stat. § 19.85(1)(c)" (¶ 6). The court agreed with the petitioner that this notice failed to reasonably apprise members of the public that the board would be considering the master contract with the Tomah Education Association (TEA) at that meeting. Including the master contract on the meeting notice would not have been a burden to the board. Further, the contract included a matter of interest to a number of community members (a provision for hiring coaches that gave a preference to members of the TEA). Lastly, the master contract was not a routine subject, because it contained the new provision about hiring coaches, to which a number of community members objected. The court did find, however, that the board's notice of a regular meeting to be held on June 15, 2004, which listed "TEA Employee Contract Approval," was adequate.

The court further concluded that 1) it would not be reasonable in the circumstances of this case to require the board to specifically articulate anything in its meeting notices about the contract's provisions for hiring coaches (see ¶ 3); 2) the reasonableness standard articulated in this decision should be given prospective application only, that is, the court "will apply the rule announced here only to this case and to cases challenging future notices" (see ¶ 49); and 3) the award of attorney fees to the petitioner under section 19.97(4) is the only appropriate remedy in this case (see ¶¶ 53-54).

In this case the court overruled State ex rel. H.D. Enterprises II LLC v. City of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999), concluding that the reasonableness standard articulated in the present case conflicts with the bright-line rule of H.D. Enterprises that "the general topic of items to be discussed [in that case `licenses'] is sufficient to satisfy the statute" (¶ 16).

Lastly, the court spoke at length about the notice requirements for public meeting agenda items that will be considered in closed session. It saw no justification for a per se rule that would require notice for closed sessions to be any more specific or less specific than that mandated for open sessions. "Notice of closed sessions must contain enough information for the public to discern whether the subject matter is authorized for closed session under § 19.85(1)" (¶ 37 n.7).

Justice Roggensack filed a concurring opinion. Justice Butler filed an opinion concurring in part and dissenting in part.

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Open Records Law

Zellner v. Cedarburg Sch. Dist., 2007 WI 53 (filed 15 May 2007)

The plaintiff was a high school teacher who was terminated by the school district following a disciplinary hearing for allegedly viewing images from adult Web sites on his work computer. He thereafter filed a grievance challenging that termination. At a private meeting to discuss settlement of the grievance, the school district's attorney presented the plaintiff with a compact disc (CD) containing copyrighted digital images that the plaintiff had allegedly viewed over the Internet from his work computer. The attorney also furnished to the plaintiff a copy of a memo prepared for the school board containing a summary of the Google search terms and Web site addresses that resulted in the adult images contained on the CD. Both the CD and the memo were created as a result of forensic analysis of the plaintiff's work computer that was conducted by the school district after the evidentiary hearing that resulted in the plaintiff's termination.

A newspaper sent a letter to the school district seeking release of the memo and the CD under the Open Records Law. The district thereafter notified the plaintiff that it had decided to release the requested records. The plaintiff sought an injunction to prohibit release of the materials. The circuit court denied the request and the plaintiff appealed. The court of appeals certified the appeal to the supreme court, which granted certification. In a unanimous decision authored by Justice Crooks, the supreme court affirmed the circuit court.

The first question considered by the supreme court was whether the plaintiff had standing to assert that the materials should not be released because they are covered by the "copyright exception" to the Open Records Law and thus are not "records" subject to release under that law. Pursuant to Wis. Stat. section 19.32(2), a "record" does not include "materials to which access is limited by copyright, patent, or bequest." The CD in question contains copyrighted adult images and Web sites. The court concluded that the plaintiff had standing to raise the copyright exception to the Open Records Law as a basis for his objection to the release of the CD. "[The plaintiff] will be impacted personally by this court's holding in regard to the requested release, and his interests were adversely affected by the circuit court decision. He has standing, therefore, to raise the copyright exception as part of his appeal in this case" (¶ 21).

With regard to the merits of the copyright exception, the plaintiff argued that because the school district does not own the copyright to the images and Web sites contained in the CD, the district may not distribute the images to the public without infringing the copyright holder's distribution rights. The court disagreed. Federal law recognizes a fair use exception to copyright infringement and articulates several factors that are to be used in determining the matter of fair use. Applying these factors, the supreme court was satisfied that the CD and the memo do not fall within the copyright exception of Wis. Stat. section 19.32(2).

"While we look at all four factors listed in 17 U.S.C. § 107, the following factors are most significant in this case: the nature of the copyrighted work, and the effect of the use upon the potential market for, or value of, the copyrighted work. Under the circumstances presented in this case, the images and websites listed and recorded in the memo and the CD are not commercial in nature, because they can be accessed free of charge via the internet, and because the District will not profit from the distribution of the images. Additionally, allowing public access to the CD and the memo for purposes of adhering to the Open Records Law will not affect the potential marketability of the images, nor is it likely to relate to their value" (¶ 29).

There also was a question in this case as to whether the school district was prohibited by Wis. Stat. section 19.36(10)(b) from releasing the CD and memo. This statute forbids the provision of public access to records containing "[i]nformation relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation." The plaintiff contended that, after his employment was terminated, the school district continued its investigation of him, in preparation for the arbitration hearing based on the grievance he had filed. He argued that the memo and CD are part of a pending investigation relating to "possible misconduct connected with employment" and that the records, therefore, should not be released until that investigation has arrived at a final disposition.

The supreme court disagreed. "We hold that, consistent with the decision in [Local 2489, AFSCME v. Rock County, 2004 WI App 210, 277 Wis. 2d 208, 689 N.W.2d 644], the investigation of [the plaintiff] was `disposed of' when he was terminated and that, therefore, the CD and the memo were not exempt from disclosure under Wis. Stat. § 19.36(10)(b). As noted previously, in Rock County, 277 Wis. 2d 208, ¶15, the court of appeals held that that `the term "investigation" in § 19.36(10)(b) includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action'" (¶ 38). "We are satisfied that the District's investigation of [the plaintiff's] conduct was concluded for purposes of the Open Records Law when the District Board terminated [the plaintiff's] employment and that, therefore, the CD and the memo are not exempt from disclosure" (¶ 4).

"Finally, although we recognize the importance of protecting privacy and reputation interests, applying the common-law balancing test articulated by this court in Linzmeyer v. Forcey, 2002 WI 84, ¶12, 254 Wis. 2d 306, 646 N.W.2d 811, we hold that the presumption of complete public access, based on a public policy determination that records should usually be open for review, outweighs the public's interest in protecting the privacy and reputation interests of a citizen such as [the plaintiff] in this case" (¶ 5). "[The plaintiff] fails to show how his personal interest in protecting his own privacy, character, and reputation, and his interest in avoiding embarrassment, would give rise to a public interest in the protection of the privacy and reputation of citizens generally" (¶ 52).

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Worker's Compensation

McNeil v. Hansen 2007 WI 56 (filed 18 May 2007)

McNeil and Hansen, who both worked for an automobile service, were flushing a customer's radiator. The vehicle's engine needed to be running for the flushing machine to work. Hansen reached in the window and turned on the engine, and the vehicle then lurched forward, injuring McNeil. McNeil sued Hansen and the company's worker's compensation carrier, which had subrogation rights. The defendants moved for summary judgment. They asked the court to dismiss the claim on the ground that the Worker's Compensation Act's exclusivity provision barred the suit. The circuit court granted the motion after it concluded that "Hansen's action did not constitute `operation of a motor vehicle' as the term is used in the exception to the exclusive remedy provision in § 102.03(2)" (see ¶ 4). The court of appeals certified the appeal to the supreme court because of a conflict between "(1) its conclusion that the facts could come within existing definitions of `operation of a motor vehicle' in other statutes, and (2) its conclusion that the Act generally provides the exclusive remedy for work-related injuries" (¶ 5).

The supreme court, in an opinion written by Justice Roggensack, affirmed the circuit court. The act's exclusive remedy provision, section 102.03(2), excepts claims against coemployees for negligent operation of a motor vehicle not owned or leased by the employer. The issue for the court was "whether Hansen's action of reaching through the vehicle's window during service of that vehicle and turning the ignition switch while the vehicle could not be driven on a public roadway falls within the term `operation of a motor vehicle' under the second exception in § 102.03(2)" (¶ 8). The act's purpose and policy compelled the court to construe the exception narrowly (see ¶ 16). Moreover, the term "operation" under the act meant something quite different than it did under the operating a motor vehicle while intoxicated statutes in light of their very different purposes (see ¶ 18).

Other cases distinguished the "operation of a vehicle from actions associated with the maintenance or repair of a vehicle" (¶ 20). "We conclude the distinction between operation and maintenance or repairs should apply in the context of the exception to the exclusivity provision in Wis. Stat. § 102.03(2). An interpretation of the term `operation' that distinguishes between operation and maintenance or repairs is consistent with the purposes of the Act: (1) to allocate the cost of workers' injuries to the industry in which they occur and (2) to protect workers from the financial burdens of coemployee suits. Injuries to workers caused by negligent coemployees while performing maintenance or repairs on a motor vehicle that could not then be driven on a public roadway are common occurrences for those workers in the vehicle maintenance and repair industry. They are directly related to their employment. Therefore, the costs of these injuries should be passed on to the industry and ultimately the consuming public; they should not be borne by the worker" (¶ 23). Moreover, "construing the exception to coemployee immunity narrowly will not result in leaving an injured employee without relief because worker's compensation benefits will be paid for the employee's injuries" (¶ 25).

In a concurring opinion, Chief Justice Abrahamson, joined by Justice Bradley, stressed that this case resolved only the facts before it. "Different conduct will be evaluated on a case-by-case basis - not on the standard set forth in the instant case" (¶ 33) .

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