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    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.

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    Vol. 81, No. 12, December 2008

    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

    Civil Procedure

    Mandamus – Standing – Substitution of Counsel

    State v. Zien, 2008 WI App 153 (filed 16 Sept. 2008) (ordered published 27 Oct. 2008)

    While serving as Wisconsin attorney general in 2005, Peggy Lautenschlager filed a mandamus action that sought to compel state legislators to provide her office with drafts of legislation relating to concealed weapons. The action was originally filed on behalf of the state but Lautenschlager later filed an amended complaint in which she added herself and her then deputy attorney general as plaintiffs, both in their official capacities. The circuit court later dismissed the state as a party. In the meantime, Lautenschlager lost her bid for reelection, and a new attorney general, J.B. Van Hollen, was sworn into office in January 2007 (see ¶ 14). In May 2007, Lautenschlager filed a motion to substitute counsel, asking the court to replace the attorney general with two private law firms, one of which she works for. “The trial court denied Lautenschlager’s motion, concluding that although she requested the public records in her personal capacity, she filed the action for mandamus in her official capacity as the attorney general. The trial court reasoned that when Van Hollen took over as attorney general, control of the case transferred to him” (¶ 16). The circuit court also denied Lautenschlager’s motion to intervene as a party plaintiff (see ¶ 17) and later granted summary judgment in favor of the legislators (see ¶ 18).

    The court of appeals, in an opinion written by Judge Kessler, dismissed Lautenschlager’s appeal. It concluded that “Lautenschlager, who was no longer the attorney general at the time she moved to substitute counsel or when summary judgment was granted, lacked standing to seek a substitution of counsel or to appeal the judgment. We reach that conclusion because Lautenschlager filed the mandamus action in her official capacity as attorney general pursuant to Wis. Stat. § 19.37(1)(b), and not as a private citizen pursuant to § 19.37(1)(a). The authority to direct the litigation and appeal the judgment lies with the person holding the office of attorney general, now J.B. Van Hollen, who chose not to appeal the judgment. We further reject Lautenschlager’s argument that she has standing to appeal the judgment as an ‘aggrieved party.’ Finally, we decline to consider Lautenschlager’s argument that after she ceased to be attorney general, she should have been allowed to convert this action to a § 19.37(1)(a) action, because that issue is raised for the first time on appeal. We dismiss the appeal” (¶ 2).

    The issue of whether “a private citizen has a right to direct, settle, compromise, appeal or substitute counsel in a case brought by the attorney general pursuant to Wis. Stat. § 19.37(1)(b)” was one of “first impression” (¶ 25). The court also addressed the “two distinct courses of action” contemplated by section 19.37(1) when a record request is denied (see ¶ 34).

    Settlement Offers – Interest – Judgments

    Morrison v. Rankin, 2008 WI App 158 (filed 16 Sept. 2008) (ordered published 27 Oct. 2008)

    Morrison brought a medical malpractice action against Rankin and was awarded damages of more than $2 million. Rankin’s medical malpractice insurer, Medical Protective, was responsible for its $1 million policy limit but had declined a $1 million pretrial settlement offer, which left it responsible for interest and double taxable costs under Wis. Stat. section 807.01(3)-(4). Morrison appealed from the circuit court’s calculation of the interest amount.

    The court of appeals affirmed in a decision authored by Judge Brunner. “Morrison’s calculation of interest is inconsistent with the plain language of Wis. Stat. § 807.01(4). That statute makes no distinction between pre- and postjudgment interest. It specifies that interest is calculated on a single amount, ‘the amount recovered,’ over one period of time, ‘from the date of the offer of settlement until the amount is paid.’ Wis. Stat. § 807.01(4). Morrison’s two-stage calculation of interest, utilizing two time periods and two amounts recovered, cannot be reconciled with the language of § 807.01(4)” (¶ 10).

    Morrison also argued that the circuit court inappropriately modified the judgment in a way that defeated her calculation of interest. “The problem with Morrison’s argument is that the judgment does not state the amount on which interest after the judgment is calculated. While Morrison contends interest should be calculated on $2,737,909.37, nothing in the language of the judgment mandates that amount over the verdict amount of $2,065,326.20, which was the amount on which interest up to the time of judgment was calculated. Morrison’s argument only demonstrates that the judgment was fairly susceptible to more than one interpretation and was therefore ambiguous. Because the judgment was ambiguous, the court did not err by clarifying the judgment’s intended meaning” (¶¶ 18-19).

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    Criminal Procedure

    Sentencing – Ordering Defendant to Reimburse Person Who Posted Forfeited Bail – Validity of Order as Restitution or as Condition of Extended Supervision

    State v. Agosto, 2008 WI App 149 (filed 23 Sept. 2008) (ordered published 27 Oct. 2008)

    The defendant’s mother posted $50,000 bail for him in a case involving sexual assault and interference with child custody. The court ordered the bail forfeited when the defendant did not appear for a court date. The defendant was subsequently convicted of several offenses (including bail jumping) in different cases. In the sexual assault case the court ordered the defendant to pay restitution to his mother for her loss of the bail money (an amount subsequently reduced to $12,000 after an ability-to-pay determination). The court later amended the judgment to impose the reimbursement obligation as a condition of extended supervision.

    On appeal the defendant argued that the circuit court did not have the authority to order him in the sexual assault case to reimburse his mother for the forfeited bail, either as “restitution,” as the circuit court originally designated it, or as a condition of his extended supervision, as the circuit court later characterized it. In a decision authored by Judge Fine, the court of appeals affirmed the circuit court.

    With regard to the original restitution order, the court of appeals turned to the restitution statute, which provides that the sentencing court shall order restitution “to any victim of a crime considered at sentencing, unless the court finds substantial reason not to do so and states the reasons on the record.” Wis. Stat. § 973.20(1r). A victim is “[a] person against whom a crime has been committed.” Wis. Stat. § 950.02(4)(a)1. The appellate court concluded that the defendant committed the crime of bail jumping, his mother lost the bail money as a result of that crime, and she was thus a victim of his having committed the bail jump. A court may impose a restitution order if the beneficiary of the order is a person against whom a crime has been committed and that crime is “considered at sentencing,” even if the beneficiary is not the victim of the crime (here, sexual assault and interference with child custody) for which sentence is imposed). These conditions were satisfied in this case and, accordingly, the circuit court did not err in ordering restitution (see ¶¶ 8-9).

    Alternatively, the court of appeals concluded that the reimbursement to the defendant’s mother could be ordered as a condition of the extended-supervision component of the bifurcated sentence imposed for the sexual assault. “The parties agree[d] that extended supervision is akin to probation and that unless a statute requires otherwise a sentencing court may impose reasonable and appropriate conditions of extended supervision just as the court may impose reasonable and appropriate conditions of probation. Further, conditions of probation may go beyond what is permissible for an order of ‘restitution’” (¶ 11) (citations omitted). Conditions of probation must “effectuate the objectives of probation” by fostering the rehabilitation of the defendant and by protecting the state and community interest. “The same considerations apply when the conditions are appended to extended supervision. Thus, ‘a condition of extended supervision need not directly relate to the offense for which the defendant is convicted as long as the condition is reasonably related to the dual purposes of extended supervision’” (¶ 12) (citation omitted).

    In this case the circuit court recognized that requiring the defendant to make good on his debt to his mother would reinforce the core aspects of rehabilitation – making the offender realize that there are consequences to what he or she does. Among other things the circuit judge noted that the defendant had shown no inclination to follow court rules. Said the court of appeals, “To give [the defendant] a free ride on the bail-jumping loss he caused his mother would only reinforce his view that he is immune to the law’s strictures. That would make a mockery of ‘rehabilitation’ and would also ill-serve the interests of our community” (¶ 13).

    Search and Seizure – Probation Search

    State v. Jones, 2008 WI App 154 (filed 25 Sept. 2008) (ordered published 27 Oct. 2008)

    The defendant was convicted of sex-related offenses and appealed the denial of his motion to suppress evidence seized from his bedroom. The court of appeals affirmed the order in a decision written by Judge Bridge.

    First, the court found that the warrantless search of the defendant’s bedroom was a lawful probation search despite participation by police officers. This issue presented a question of constitutional fact, consisting of a mixed question of fact and law (see ¶ 11). “Cooperation between a probation officer and law enforcement does not transform a probation search into a police search. Indeed, cooperation with law enforcement for the purpose of preventing crime is a specific goal of probation supervision. A probation search is also not transformed into a police search because the information leading to the search was provided by law enforcement. Nor is a probationary search transformed into a police search due to the existence of a concurrent investigation. Similarly, the transfer of the items seized to law enforcement following the search does not change the nature of the search itself. The circuit court’s findings of historical fact clearly indicate that Trimble [the probation agent] was present at Jones’s residence in furtherance of her responsibilities as his agent. Trimble, not the police, initiated the search, and Trimble, not the police, conducted the search” (¶ 15). Police officers were present solely for protective purposes (see ¶ 16). 

    Second, the probation search was reasonable. “Jones concedes that his admission that he had a marijuana pipe in his bedroom ‘would arguably lead to a reasonable suspicion that he had contraband in the room.’ He argues, however, that this information did not contribute to Trimble’s decision to search his bedroom. We reject Jones’s argument. As the circuit court found, Trimble was told by Detective Pertzborn that Jones was sexually involved with a fourteen-year-old girl and that Pertzborn had knowledge of nude photographs of Jones and love notes from Jones to the girl. Trimble testified that when she went to Jones’s home, she understood there were probably nude photographs of the girl in his possession. Further, Jones admitted that he had a marijuana pipe in the room that he was trying to hide. Jones does not dispute these facts, and we are satisfied that the court’s factual findings are not clearly erroneous” (¶¶ 21-22). Finally, the use of a locksmith to enter the locked bedroom did not violate administrative regulations that prohibit forcible entries during probation searches because the locksmith did not damage the door (see ¶ 27).

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    Family Law

    Child Custody – Physical Placement – Parent on Activity Duty in Military – Nontransferability of Physical Placement Rights – Stepparent Visitation

    Lubinski v. Lubinski, 2008 WI App 151 (filed 25 Sept. 2008) (ordered published 27 Oct. 2008)

    August Lubinski and Colleen O’Rourke were divorced in June 2000. Following their divorce, Lubinski and O’Rourke agreed to a placement schedule for their son. The schedule, which was incorporated in a court order, provided that O’Rourke had primary physical placement of the son during the school year, and Lubinski had primary physical placement of the son during the summer break.

    Lubinski was ordered to report for active duty in the military in June 2007. He expected to be overseas for at least one year. He met with O’Rourke and requested that she comply with their placement order during his absence, and she refused to do so. Lubinski then filed a motion under Wis. Stat. sections 767.471 and 767.43 to enforce the placement order between himself and O’Rourke. The motion sought an injunction ordering O’Rourke to strictly comply with the placement order while Lubinski was on active duty and sought visitation rights for Lubinski’s current wife, Jenny Lubinski, under the same terms and conditions granted to Lubinski under the placement order. Jenny Lubinski filed her own petition requesting that she have the same visitation rights as August Lubinski would have were he not on active duty. O’Rourke opposed the motion and the petition, but the circuit court granted both. In a decision authored by Judge Dykman, the court of appeals reversed.

    The first question before the appellate court was whether a physical placement schedule may be enforced in the absence of the parent awarded that placement. The court of appeals concluded that “the trial court erred in ordering an injunction to enforce the physical placement schedule in Lubinski’s absence because physical placement rights are not transferable” (¶ 6). Lubinski argued that he should be able to exercise his physical placement by having the son stay with Jenny Lubinski under the terms of the physical placement order while he is on active duty. Said the court, “The problem with Lubinski’s argument is that, by definition, he cannot exercise physical placement with [the son] while he is physically absent. Rather, the question is whether Jenny Lubinski can exercise [her husband’s] physical placement in [his] absence. We conclude that she cannot” (¶ 11). August Lubinski, not Jenny Lubinski, has the right to physical placement with the son, and “a parent cannot delegate physical placement rights to another in his absence” (¶ 12).

    A second question on appeal was whether the circuit court’s award of stepparent visitation to Jenny Lubinski under the same terms and conditions as those of a parent’s physical placement schedule was a proper exercise of discretion. The court of appeals held that the circuit court “erred in awarding Jenny Lubinski visitation under the terms of Lubinski’s physical placement schedule for two reasons: (1) physical placement bestows rights associated with legal custody, and Jenny Lubinski has no claim to physical placement or legal custody in this case; and (2) O’Rourke has a liberty interest in determining her child’s visitation schedule with others, and there are no facts in this case justifying state intervention with that right” (¶ 6).

    Termination of Parental Rights – Pleas

    Oneida County Dep’t of Social Servs. v. Therese S., 2008 WI App 159 (filed 26 Sept. 2008) (ordered published 27 Oct. 2008)

    Oneida County alleged that Therese S. had failed to assume parental responsibility for her child and that the child needed continuing protective services. At the fact-finding hearing, the court was informed that Therese had a mental disability and lacked a high school education and that she would plead no contest. The court terminated Therese’s parental rights and later denied Therese’s postdisposition motion.

    The court of appeals, in a decision authored by Judge Peterson, reversed and remanded for a determination of whether the plea might be upheld despite the errors in the record. Specifically, the court held that “in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness” (¶ 10). “A finding of parental unfitness is a direct, immediate, and fundamental consequence of entering a no contest plea. That finding concludes the first step of the termination process, where the burden is on the government and the parent’s rights are paramount” (¶ 11). The record failed to demonstrate an adequate colloquy between the court and Therese on this issue (see ¶ 12).

    The circuit court also failed to comply with Wis. Stat. section 48.422(7)(a), which requires that the judge discuss the potential dispositions faced by the parent. “[A]t the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination. Additionally, we conclude that in order for the court’s explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that ‘[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition.’ Wis. Stat. § 48.426(2)” (¶ 16). The court of appeals, however, expressly declined to “adopt the extensive approach proffered by Therese, requiring courts to inform parents in detail of all potential outcomes, including all alternatives to termination” (¶ 17). Finally, these errors were not harmless.

    The court of appeals remanded the case for a hearing at which the county will have the burden of proving that, despite the errors, Therese understood the following when she pleaded no contest: “(1) she would be found unfit to parent as a result of the plea, (2) the potential dispositions specified under Wis. Stat. § 48.427, and (3) that the dispositional decision would be governed by the child’s best interests” (¶ 22).

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    Motor Vehicle Law

    OWI – Expert Opinion Regarding Defendant’s Blood Alcohol Concentration at Time of Driving That is Based on Preliminary Breath Test Result Not Admissible

    State v. Fischer, 2008 WI App 152 (filed 10 Sept. 2008) (ordered published 27 Oct. 2008)

    The defendant submitted to a preliminary breath test (PBT) after he was stopped on suspicion of driving while under the influence of intoxicants. Subsequent to his arrest for operating while intoxicated (OWI), the defendant submitted to a blood draw at a local hospital. At trial the defendant sought to admit the testimony of an expert, who would have told the jury that he compared the blood test result with the PBT result and, by doing so, could extrapolate a probable blood alcohol concentration at the time the defendant was last seen operating his vehicle (about 30 minutes before the PBT was administered.) The defendant claimed that he was constitutionally entitled to present this expert’s analysis as an integral part of his defense.

    The circuit court refused to admit this testimony. It relied on Wis. Stat. section 343.303, which provides that “[t]he result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under [the implied consent law].” The jury found the defendant guilty and he appealed, claiming that the circuit court’s reliance on the statute was arbitrary and disproportionate to the statute’s purposes. The court of appeals disagreed and, in an opinion authored by Chief Judge Brown, affirmed the judgment of conviction.

    The defendant argued that he had a Sixth Amendment right to pre-sent the proffered evidence despite the provisions of section 343.303. In Rock v. Arkansas, 483 U.S. 44 (1987), the U.S. Supreme Court held that a court may not rely on a statute mechanistically but instead must employ a proportionality test, in which the court balances a statute’s restrictions on the right to present a defense against “the purposes [the restrictions] are designed to serve.” The Wisconsin Supreme Court offered guidance on how to apply this balancing test in State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 777. It is a two-part inquiry. First, the defendant must satisfy each of the following four factors through an offer of proof: (1) The offered testimony meets the standards of Wis. Stat. § 907.02 governing admission of expert testimony; (2) The expert’s testimony must be clearly relevant to a material issue in this case; (3) The expert witness’s testimony is necessary to the defendant’s case; (4) The probative value of the expert witness’s testimony outweighs its prejudicial effect. If the defendant successfully satisfies these four factors to establish a constitutional right to present the proffered evidence, a court undertakes the second part of the inquiry by determining whether the defendant’s right to present a defense is nonetheless outweighed by the State’s compelling interest to exclude the evidence” (¶¶ 8-9). 

    In this case the court concluded that the defendant satisfied the second and third factors above. With respect to the two remaining factors, the appellate court said as follows: “Section 907.02 asks whether the scientific or specialized knowledge of the proposed expert will assist the trier of fact to understand the evidence of a fact in issue. We are convinced that if the underlying basis for the opinion is a result that cannot be tested for accuracy at the time of the test, then it cannot assist the trier of fact. Similarly, such an opinion has no probative value, but is an opinion built much like a house of cards. If the foundation breaks down, the house breaks down” (¶ 24).

    The court’s concern about the PBT being the underlying basis for the expert’s opinion was anchored in the legislature’s decision that “PBT results are sufficient information to determine only whether an officer has probable cause to arrest. But, it appears that the legislature has also determined that the results are not sufficiently reliable for jury consideration in determining guilt or innocence” (¶ 13). A key factor underlying the prohibition on admitting PBT results is the fact that PBTs “are not tested for accuracy at the time the PBT is administered” (¶ 1). Accordingly, the court concluded that “the State’s interest in not allowing PBT evidence in the courtroom in OWI trials is legitimate and overrides [the defendant’s] interest in presenting [the expert’s] testimony” (¶ 17).

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    Probate Law

    Inheritance by Person Who Assists Testator to Commit Suicide – Wis. Stat. section 854.14

    Lemmer v. Schunk, 2008 WI App 157 (filed 25 Sept. 2008) (ordered published 27 Oct. 2008)

    Section 854.14 of the Wisconsin Statutes prohibits a person who “unlawful[ly] and intentional[ly] kill[s]” another person from benefiting under the decedent’s will and other instruments. The issue in this case was whether a person who assists a testator to commit suicide is precluded under this statute from inheriting property under the testator’s will. The circuit court concluded that assisting the testator to commit suicide did not amount to an “unlawful and intentional killing” under section 854.14.

    In a decision authored by Judge Vergeront, the court of appeals affirmed the decision of the circuit court and held that “unlawful and intentional killing of the decedent” (as used in section 854.14) does not include assisting the decedent to commit suicide. Relying on the dictionary definition of the word kill as meaning “to deprive of life,” the court concluded that “[a] person who assists another in voluntarily and intentionally taking his or her own life is plainly not depriving the other of life. As the assumed facts in this case illustrate, providing [the decedent] with a loaded shotgun did not deprive him of his life: he deprived himself of life by shooting himself with the shotgun” (¶ 13). The fact that assisting another person to commit suicide is a crime (see Wis. Stat. § 940.12) does not make a person who commits this crime a killer within the meaning of section 854.14 (see ¶ 15).

    In sum the court of appeals concluded that “the circuit court properly construed ‘unlawful and intentional killing’ in Wis. Stat. § 854.14 not to include assisting another to commit suicide” (¶ 18).

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    Safe-place Law – Special Verdict – Made-whole Doctrine

    Szalacinski v. Campbell, 2008 WI App 150 (filed 3 Sept. 2008) (ordered published 27 Oct. 2008)

    The plaintiffs were guests in the Grand Marquis hotel when a fire broke out. The fire was caused by other guests’ negligent handling of burning materials. The plaintiffs sued the other guests, who admitted liability, and also sued the hotel under the safe-place statute. At trial the special verdict asked only whether the hotel had been negligent by failing to construct and maintain the premises as safe as the nature of the premises reasonably permitted (see ¶ 19). The jury found the hotel 50 percent negligent, the plaintiff 5 percent negligent, and the two tortfeasor guests 45 percent negligent. The hotel appealed.

    The court of appeals reversed the judgment in an opinion written by Judge Curley. The safe-place statute was the sole basis for liability against the hotel. The court reviewed the basics of safe-place liability and found that the evidence did not support the hotel’s liability under a variety of theories, including the building’s “compartmentalization,” the operation of its alarm system and fire doors, and other alleged deficiencies. The discussion is necessarily fact-intensive.

    The court also held that the hotel’s insurer, American Family, did not waive its cross-claim and that its recovery was not limited by the made-whole doctrine. The waiver issue involved the absence on the special verdict of any question about the hotel’s contributory negligence (see ¶ 46). “The burden to put forth evidence that Grand Marquis was contributorily negligent in this regard was on the parties asserting it. In the absence of such evidence, Grand Marquis was not required to prove the negative. In light of the trial court orders that [the tortfeasor guests] were causally negligent, if the Szalacinskis wanted the jury to attribute negligence to Grand Marquis, they needed to submit a contributory negligence verdict question for the court’s consideration and make the appropriate arguments. See Wis. Stat. § 805.13(3) (2003-04). The Szalacinskis’ failure to do so waived their argument that liability was not established for Grand Marquis’ property damages” (¶ 46). Statements by the insurer’s lawyer while the jury deliberated did not undercut its contention that there were no factual issues regarding the hotel’s negligence.

    Nor did the made-whole doctrine affect the insurer’s cross claim. “Here, American Family succeeded to the legal rights and claims of its insured, Grand Marquis, and consequently, stepped into Grand Marquis’ shoes to the extent it made payment as a result of the fire. American Family is not subrogated to the rights of the Szalacinskis; therefore, the made whole doctrine has no application as between American Family Insurance and the Szalacinskis. Its application would only be appropriate as to the Szalacinskis if their insurer sought to recover in this action before they were made whole” (¶ 52).

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