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    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests.

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 8, August 2008

    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Appellate Procedure

    Final Order - Waiver

    Sanders v. Estate of Sanders, 2008 WI 63 (filed 18 June 2008)

    This is a much-litigated probate proceeding. The principle issue before the supreme court was whether a circuit court order dated Feb. 10, 2006, was a final order for purposes of this appeal, or whether the appellant should have appealed from an earlier order. The court of appeals dismissed the appeal on the ground that an earlier order was the "final order" from which the appeal should have been taken.

    The supreme court reversed and remanded in an opinion authored by Justice Crooks. The court held that the February 2006 order was "final" within the meaning of the case law, and that the appellant had not waived her right to appeal by stipulating to the entry of the order (a fact-intensive discussion that will not be further addressed). The finality determination was based on the February 2006 order's disposition of issues, particularly in light of a plethora of earlier rulings. "While a finality determination is not always clear-cut, here we are satisfied that this circuit court order was the one that disposed of the entire matter in litigation, at least in regard to the relevant real estate special proceeding, and it specifically noted and preserved Sanders' right to appeal from the order. Just as we required in Wambolt [2007 WI 35] and Tyler [2007 WI 33], final orders and final judgments in probate cases should also state that they are final for the purposes of an appeal, if that is the intention of the parties involved and of the circuit court" (¶ 41).

    Unpublished Decisions - Court of Appeals - Overruling Cases

    City of Sheboygan v. Nytsch, 2008 WI 64 (filed 19 June 2008)

    In what the supreme court admitted was an "unusual" practice, it issued a per curiam decision that granted a pending petition for review solely for the purpose of directing the court of appeals to vacate language that appeared in its opinion. In the offending footnote, the court of appeals observed that an unpublished court of appeals decision, on which the circuit court had relied, was itself "wrongly decided." Although the court of appeals "may not overrule, modify or withdraw language from a published court of appeals decision," the supreme court asked whether "the court of appeals [may] analyze - and effectively overrule - a decision that wholly lacks either precedential or persuasive authority, as a matter of law? Certainly, the court's analysis explains why the court of appeals overruled the circuit court's ruling. But, in so doing, the court [of appeals] implicitly acknowledges that the [earlier] decision, albeit unpublished, does indeed have persuasive authority. This [supreme] court is fully aware that appellate courts and lawyers alike look to unpublished decisions to bolster legal arguments and to ensure consistency in outcome. However, our current rules do not sanction this practice" (¶ 5). The per curiam order closed by noting that the supreme court will conduct a public hearing at a date to be determined on a proposed rule change that would permit citation of unpublished decisions. [Editors' Note: The hearing will be held on Oct. 14, 2008.]

    Justice Ziegler did not participate in this decision.

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    Separation of Powers - Vacated Order

    Racine County v. International Ass'n of Machinists & Aerospace Workers, Dist. 10, 2008 WI 70 (filed 26 June 2008)

    Racine County's family court services were provided by county employees who were members of a union (IAM). A family court commissioner, Van Kampen, essentially orchestrated an arrangement by which several county employees "retired" and then were rehired by the county as independent contractors to perform the same services. IAM filed a grievance. After a hearing, the arbitrator sustained the grievance on the ground that Racine County had violated the collective bargaining agreement. The arbitrator ordered that the county cease and desist from continuing the service contract, but the arbitrator refrained from reinstating the former employees because they had "retired."

    On appeal, the circuit court vacated the arbitrator's award on the ground that it violated the separation of powers. In particular, "Wis. Stat. § 767.405(2) gave the director discretion on how to provide the services in question, and the director was free to fill the positions with county employees, independent contractors, or a mix of both options. The circuit court determined that the three positions were not bargained for positions and that the positions were vacant by virtue of retirements and a voluntary layoff. As a result, the director had discretion in filling these statutorily mandated positions. Accordingly, the union had no vested right in the three positions, and the union could not tell the director how to fill the positions. The circuit court determined that the case was a separation of powers case, and the arbitrator's award ignored the ramifications of Wis. Stat. § 767.405 by eviscerating the director's statutory authority" (¶ 8). A divided court of appeals reversed the circuit court.

    The supreme court, in an opinion written by Justice Crooks, reversed the court of appeals. The supreme court said that the circuit court properly vacated the arbitrator's award, which violated section 767.405 and the constitutional separation of powers (see ¶ 16). "[T]he arbitrator's award in the present case would similarly abrogate the director's statutory authority as the agent of the circuit court judges and … the arbitrator's award must, therefore, be vacated" (¶ 20). Nor could the collective bargaining agreement be harmonized with the statute (see ¶ 21). "Van Kampen is an agent of the judicial branch, and Wis. Stat. § 767.405 vests discretion in him on how to deliver the statutorily-mandated services. If Van Kampen had initially filled the positions in question here, he clearly could have used independent contractors. The positions were not bargained-for positions, and they were created by statute. Accordingly, the circuit court was correct in holding that Van Kampen `had the authority under the statute to either hire employees to do the work, contract out to do the work or to combine the two methods of providing services in his discretion, subject only to the oversight of the Judiciary that appointed him.' There is no requirement in § 767.405 that the services be provided by county employees, and subcontracting is clearly allowable under the statute" (¶ 23). The majority also held that the arbitrator exceeded her authority under Wis. Stat. section 788.10 by not considering section 767.405 and relevant case law (see ¶ 36).

    Justice Bradley dissented, joined by Chief Justice Abrahamson and Justice Butler. The dissenting justices argued that the majority ignored the process by which the county eliminated the jobs.

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    Civil Procedure

    Statute of Limitation - Tolling

    C. Coakley Reloc. Sys. v. City of Milwaukee, 2008 WI 68 (filed 25 June 2008)

    Roadstar LLC leased a parking lot to another business, Coakley. The city acquired Roadstar's property in January 2002 and notified Coakley that it must vacate. In October 2002, a circuit court granted the city a writ that "ousted" Coakley from the property; the city took physical possession of the property on Oct. 14, 2002. Coakley filed a notice of claim on Dec. 13, 2004, and filed a formal complaint in September 2005. The circuit court and the court of appeals concluded that Coakley's complaint was barred by the two-year statute of limitation.

    The supreme court affirmed in an opinion authored by Justice Ziegler. While the court was "sympathetic" to the substantive merits of Coakley's demands for compensation, "the statute of limitations dictates that Coakley's claims are time barred" (¶ 15). "Under Wis. Stat. § 32.20, the legislature specifically stated that the statute of limitations was to begin once the condemnor took `physical possession.' This legislative directive is clear. In the case at hand, it is undisputed that the City took physical possession on October 14, 2002. Therefore, Coakley should have filed its Wis. Stat. §§ 32.19 and 32.195 claims within two years of October 14, 2002. However, Coakley did not file a notice of claim, pursuant to Wis. Stat. § 893.80, until December 13, 2004. Critically, it did not file its first complaint until September 29, 2005. As a result, Coakley's claims are time barred" (¶ 23). The supreme court also held that the tolling statute, Wis. Stat. section 893.13(2), did not apply to Coakley's predicament because Coakley did not file a claim for relocation benefits under Wis. Stat. sections 32.19 and 32.195 until after the statute of limitation had expired. In so holding, the court detailed Coakley's pleadings and responses in the city's proceeding that resulted in Coakley being forced to vacate.

    Justice Roggensack concurred. She wrote separately to point out that the tolling issue may have been viewed "differently" had "Coakley either pled a defense or filed a counterclaim" in the city's action (¶ 32).

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    Criminal Law

    Sexual Assault - Deceased Victim

    State v. Grunke, 2008 WI 82 (filed 9 July 2008)

    The state charged three men with attempted third-degree sexual assault based on evidence that they planned to disinter a specific female corpse so that one of them could have sexual intercourse with it. They dug a hole above the grave but were unable to pry open the concrete vault containing the victim's remains. Soon after the men discovered their inability to access the body, a car drove into the cemetery and the men fled. After a preliminary hearing, the circuit court denied bind-over on the attempted third-degree sexual assault charge; it concluded that the statute did not apply to circumstances in which the victim is deceased due to no act of the accused (see ¶ 6). In a published decision the court of appeals affirmed. See 2007 WI App 198. In a majority decision authored by Justice Roggensack, the supreme court reversed the court of appeals.

    The Wisconsin Criminal Code defines third-degree sexual assault as follows: "Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony...." Wis. Stat. § 940.225 (3). Subsection 7 of the statute provides that the sexual assault statute "applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse."

    The supreme court accepted review of this case for the purpose of deciding "whether Wis. Stat. § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the defendant did not cause the victim's death" (¶ 20). It concluded that "by its plain terms, Wis. Stat. § 940.225 prohibits the conduct that the defendants are alleged to have attempted…. The language of the statute is clear on its face. A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person" (¶ 37). For these and other reasons articulated in the opinion the majority reversed the court of appeals and remanded the matter to the circuit court for further proceedings consistent with its decision.

    Chief Justice Abrahamson filed a concurring opinion. Justice Bradley filed a dissent that was joined in by Justice Butler.

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    Criminal Law / Procedure

    Securities Fraud - Expert Legal Opinion - Execution of Search Warrant at Business Office - Determination of Habitual Criminality by Court

    State v. LaCount, 2008 WI 59 (filed 10 June 2008)

    LaCount was employed by Gates, Paul & Lear L.L.C. (GP&L) as a debt negotiator and office manager. Between June 1998 and October 1999, he was involved in three separate business transactions that led to the charges in this case: 1) the liquidation of the corporate assets of SMC Machine Inc. (SMC); 2) a purported investment of $64,000 by J in a real estate venture; and 3) the alleged misappropriation of funds that belonged to Mirr Tree Service (MTS).

    Before LaCount's arrest, police officers executed a search warrant at the office of GP&L and seized approximately 500,000 pages of documents. The search warrant sought financial records that related to the clients named in the warrant's application, specifically SMC and CDM Machine Corp. During their search, the police officers discovered additional evidence that related to MTS and to J, who were not named in the warrant. The evidence led to the state's filing of a 10-count complaint against LaCount, which included charges in regard to both MTS and J. After the preliminary hearing, one count was dismissed. LaCount was charged with the remaining nine counts in an information filed by the state. A jury convicted him in a trial that was limited to the securities fraud charge; he subsequently entered guilty pleas to several of the remaining counts. LaCount appealed only two of the convictions: theft by bailee (relating to MTS); and securities fraud (based on the purported sale of a security to J). The court of appeals affirmed the convictions in a published decision. See 2007 WI App 116. In a majority decision authored by Justice Crooks, the supreme court affirmed the court of appeals.

    First, the supreme court held that the circuit court did not erroneously exercise its discretion in admitting expert opinion testimony by an attorney, Cohen, that the defendant had engaged in a securities transaction. "Cohen was properly allowed to testify on the basic factual characteristics of an investment contract, in order to assist the jury in determining whether the transaction with [J] involved a security. We are further satisfied that Cohen did not impermissibly testify on a legal issue, contrary to LaCount's claim that Cohen improperly testified on the definition of an investment contract. However, even if Cohen's [description of a security] was overly broad, the jurors were properly instructed that they were not bound by any expert's opinion, that they were the sole judges of the facts, and that the court was the sole judge of the law. Jurors are presumed to have followed jury instructions" (¶¶ 21-23).

    Second, the supreme court held that the state proved beyond a reasonable doubt that LaCount sold J a security, in this case, an investment contract. LaCount argued that there was a failure of proof because the state did not establish that J relied solely on LaCount's efforts to earn a profit, which LaCount alleged was required. The supreme court disagreed. "We are not persuaded by LaCount's argument ... that [J] had to depend solely on LaCount's efforts to realize a profit for the transaction to be an investment contract" (¶ 30). "We agree with the Fore Way Express [v. Bast, 178 Wis. 2d 693, 505 N.W.2d 408 (Ct. App. 1993)] court that an investor may have a role in the managerial efforts of an investment contract, so long as the investor does not provide the essential managerial efforts for the investment contract" (¶ 31).

    Third, the supreme court held that the police officers did not exceed the scope of the search warrant when they seized documents while executing the warrant. LaCount claimed that the search warrant authorized only the search for and seizure of records that related to GP&L's business with specifically named clients. LaCount also argued that the search warrant did not allow the police officers to search his personal office within GP&L's office. The court was satisfied that the warrant authorized the police to search all of GP&L's premises, including LaCount's personal office therein (see ¶ 40). Finding this case analogous to State v. DeSmidt, 155 Wis. 2d 119, 454 N.W.2d 780 (1990), the court concluded that "the application for the search warrant set forth probable cause to believe that a pervasive scheme to defraud existed, which made the seizure of all of GP&L's business records permissible. As a result, the seizure of documents from GP&L's office was permissible, notwithstanding the large number of documents seized. Furthermore, we are satisfied that, when read as a whole, the search warrant authorized the search for and the seizure of more than merely the records of the clients specified in the warrant's application. The warrant authorized the search for and seizure of any paper or computer records that related `to any type of bank account or investment account owned by' GP&L, LaCount, or [K]. The search warrant also authorized the search for and seizure of any paper or computer records that related to GP&L's payroll, telephone logs, accounts payable, or accounts receivable. The warrant further authorized the search for and seizure of any paper or computer records that indicated `the names of past and present employees of [GP&L] or past and present owners or shareholders in [GP&L].' In addition, and more generally, the warrant authorized the search for and seizure of computer hardware, computer software, and computer instructions. Because of the wide breadth of the search warrant, we are satisfied that the evidence that the State used both at the preliminary hearing and also at the trial to convict LaCount came within the scope of the search warrant" (¶¶ 43-44).

    Finally, the supreme court held that the circuit court's finding that the defendant was a habitual criminal under Wis. Stat. section 939.62 did not violate the defendant's right to a jury trial on that matter. At issue was the propriety of the circuit judge (rather than the jury) determining whether the defendant's prior convictions occurred within the five-year look-back period specified in the habitual criminality statute. Recent U.S. Supreme Court decisions hold that "a trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record" (¶ 52). Further, the Wisconsin Supreme Court recently held that a presentence report, which listed the defendant's crime and date of conviction, was sufficient to "constitute an official report that would serve as prima facie proof of habitual criminality" for purposes of a penalty-enhancement statute. State v. Bonds, 2006 WI 83, ¶48, 292 Wis. 2d 344, 717 N.W.2d 133. Said the court in the present case, "We are satisfied that the same is true in [LaCount's case], because the presentence report listed LaCount's period of actual confinement on the prior conviction in question. We are satisfied that the presentence report, combined with the certified judgment of conviction, was a judicial record, not an executive branch record, even though it was prepared by the Wisconsin Department of Corrections. As a result, we are satisfied that the circuit court's finding that LaCount was a habitual criminal did not violate LaCount's right to a jury trial, because the relevant information could be readily determined from a judicial record, here the presentence report" (¶ 53).

    Justice Bradley filed a concurring opinion disagreeing with the majority's discussion regarding the seizure of documents during execution of the search warrant; Chief Justice Abrahamson and Justice Butler joined this concurrence. Justice Roggensack filed a concurring opinion disagreeing with the majority regarding the admissibility of the expert opinion testimony as described above; Justice Butler joined this concurrence.

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    Criminal Procedure

    Guilty Pleas - Read-in Offenses

    State v. Straszkowski, 2008 WI 65 (filed 19 June 2008)

    This case involves Wisconsin's "read-in" procedure in criminal cases. A read-in is a crime that is uncharged or that is dismissed as part of a plea agreement but which the defendant agrees may be considered by the court in fashioning a sentence for the crime(s) of which he or she is convicted. The ultimate legal question before the supreme court in this case was whether the read-in procedure requires a defendant to admit guilt to the read-in offense or the circuit court to deem the read-in offense as admitted by the defendant.

    In a majority opinion authored by Chief Justice Abrahamson, the supreme court answered the ultimate question, and it provided additional guidance on the read-in procedure. "[W]e conclude that Wisconsin's read-in procedure does not require a defendant to admit guilt of a read-in charge for purposes of sentencing and does not require a circuit court to deem the defendant to admit as a matter of law to the read-in crime for purposes of sentencing. A circuit court should not deem a defendant's agreement to have a charge read in for consideration at sentencing and dismissed on the merits to be an admission of guilt of the read-in charge for purposes of sentencing" (¶ 92).

    "Except when a defendant does in fact admit guilt of a read-in charge, stating that a defendant `admits guilt' of a read-in charge for purposes of sentencing is more likely to confuse than to guide the decisions made by a defendant or a sentencing court. It is a better practice for prosecuting and defense counsel and circuit courts to omit any reference to a defendant admitting a read-in crime, except when the defendant does admit guilt, and simply to recognize that a defendant's agreement to read in a charge affects sentencing in the following manner: a circuit court may consider the read-in charge when imposing sentence but the maximum penalty of the charged offense will not be increased; a circuit court may require a defendant to pay restitution on the read-in charges; and a read-in has a preclusive effect in that the State is prohibited from future prosecution of the read-in charge" (¶ 93). "To avoid any confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid ... the terminology `admit' or `deemed admitted' in referring to or explaining a defendant's agreement to read in charges" (¶ 94).

    The supreme court withdrew language in the case law that might be read as intimating that when a charge is read in, a defendant must admit or is deemed to admit the read-in charge for sentencing purposes (see ¶ 95).

    Justice Butler filed a concurring opinion that was joined in by Justice Ziegler.

    John Doe Investigations - Power to Subpoena Witnesses Vested Exclusively in Presiding Judge

    State ex rel. Hipp v. Murray, 2008 WI 67 (filed 20 June 2008)

    This appeal concerns John Doe investigations and the power to subpoena witnesses to appear at such proceedings. Wis. Stat. section 968.26 provides in relevant part as follows: "If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed...." According to the supreme court, "The statute provides that the complainant, the district attorney, and the judge each has the ability to bring witnesses to the John Doe proceeding. It sets forth three distinct ways in which this may happen. Once the judge determines that there is reason to believe a crime has been committed, the judge (1) shall examine the complainant and witnesses `produced by' the complainant; (2) at the district attorney's request the judge shall subpoena and examine other witnesses; and (3) the judge may choose to subpoena and examine `other witnesses,' that is, witnesses neither produced by the complainant nor requested by the district attorney" (¶ 22).

    The question before the court was whether the power to subpoena witnesses to appear at a John Doe hearing is vested exclusively in the judge. The petitioner (an inmate of a correctional facility who was petitioning for an investigation into the alleged theft of personal property) argued that enforceable subpoenas could also be issued at his request by the clerk of court pursuant to the general subpoena statute (Wis. Stat. § 885.01). In a published decision the court of appeals concluded that subpoenas issued by the clerk of court to compel the attendance of witnesses at John Doe proceedings were valid. See 2007 WI App 202.

    In a majority opinion authored by Justice Bradley the supreme court concluded that "a John Doe judge has exclusive authority to subpoena witnesses in a John Doe proceeding based upon the language of the John Doe statute (§ 968.26), the history of its application, and principles of statutory construction. The case does not present the issue of whether a John Doe judge is required to subpoena every witness that a John Doe petitioner requests. We save that issue for another day" (¶ 52).

    As a procedural matter, the supreme court agreed with the court of appeals that a writ of mandamus should be granted in this case and the circuit judge instructed to issue subpoenas for the witnesses requested by the petitioner.

    Chief Justice Abrahamson did not participate in this case. Justice Butler filed a concurring opinion.

    Statutes of Limitation - Sexual Assault -Application of Tolling Provision to Persons Not Publicly Residents of Wisconsin

    State v MacArthur, 2008 WI 72 (filed 26 June 2008)

    This case involves allegations of sexual abuse involving several children. The incidents allegedly occurred between 1965 and 1972. The defendant was not charged with these crimes until 2006. He moved the circuit court to dismiss all counts, contending that they were barred by the statute of limitation. "In short, MacArthur argued that the six-year statute of limitations, Wis. Stat. § 939.74 (1965-72), had expired, thus depriving the court of jurisdiction. Moreover, MacArthur argued that the complaint failed to offer any proof that MacArthur left the state, which would be required to give rise to the tolling provision in Wis. Stat. § 939.74(3) (1965-72). In the alternative, MacArthur argued that even if the State could prove MacArthur was not a resident of Wisconsin after 1970, the prosecution was barred because Wis. Stat. § 939.74(2)(c) (2005-06) prohibits prosecution after a victim reaches the age of 45 years old, and in this case, the victims were older than 45 years old when the complaint was filed" (¶ 4). The circuit court denied the motion to dismiss, and the court of appeals granted permission for the defendant to appeal this nonfinal order. The court of appeals then certified the case to the supreme court, which granted certification. In a majority decision authored by Justice Ziegler, the supreme court affirmed the circuit court.

    Between 1965 and 1972 the statute of limitation for the felonies with which the defendant is charged was six years (see ¶ 10). The court concluded that this statute applies in the defendant's case (see ¶ 2), and that a series of amendments to section 939.74, which were enacted between 1987 and the date on which the defendant was charged and which altered the time for commencing certain child sex offense prosecutions according to the age of the victim, did not apply to the defendant's case (see ¶ 26). Thus, the defendant cannot avail himself of a statute of limitation defense on the basis that his victims were older than 45 years old when the complaint was filed, despite the fact that this statute of limitation provision was in effect at the time he was charged.

    Another issue in this case involved the tolling provision of section 939.74(3), which provides that in the computation of time for statute of limitation purposes, the time during which the actor was not publicly a resident within this state shall not be included. The court of appeals certified two issues regarding the tolling provision. The first was "whether the judge or the jury decides if the statute of limitations bars prosecution where the State argues that the statute of limitations has been tolled because the defendant left the State of Wisconsin" (¶ 7). The second certified question was "what burden of proof applies to resolving whether the statute of limitations has been tolled" (id.). Responding to these questions, the supreme court adopted an approach "consistent with the federal court's approach to the tolling provision in 18 U.S.C. § 3290" (¶ 53). Said the court, "After the defendant makes a statute of limitations challenge, the State bears the burden of showing, at a pretrial proceeding, that Wis. Stat. § 939.74(3) has been satisfied by a preponderance of the evidence. However, at trial, the jury must determine the date or date range of the charged offense beyond a reasonable doubt. This can be accomplished by the general verdict's language or when appropriate with a special verdict. If the date found by the jury creates a bar against prosecution because of the statute of limitations and the court's pretrial findings regarding tolling, the court must then rule accordingly on the issue" (¶ 50).

    Justice Bradley filed a concurring opinion. Justice Prosser did not participate in this case.

    Newly Discovered Evidence - Expert's Lies

    State v. Plude, 2008 WI 58 (filed 10 June 2008)

    Plude was charged with murdering his wife. At trial, prosecution experts and defense experts dramatically disagreed over how the death occurred. The jury found Plude guilty. After trial the defense learned that one prosecution expert had lied about his qualifications. The defense raised this and other issues but the circuit court refused to grant a new trial. The court of appeals affirmed.

    The supreme court, in an opinion written by Justice Roggensack, reversed and remanded the case for a new trial based on newly discovered evidence. "We conclude that in a trial rife with conflicting and inconclusive medical expert testimony about a case the circuit court observed was based on `circumstantial evidence,' there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude's guilt. Our conclusion is based on Shaibani's testimony as a quasi-medical expert notwithstanding his lack of a medical education and on the link that Shaibani's testimony provided to other critical testimony that related to the manner of [the wife's] death" (¶ 36). Shaibani was the only prosecution expert who offered a definitive, conclusive opinion that Plude had murdered his wife. All other expert testimony was "inconclusive," with the single exception of testimony from a defense expert who offered an exculpatory opinion (see ¶ 46).

    Justice Ziegler concurred. She wrote separately to express her disagreement with the majority's conclusion that the newly discovered evidence standard justified the new trial.

    Voice Stress Tests - Statements

    State v. Davis, 2008 WI 71 (filed 26 June 2008)

    During the defendant's trial on child sexual assault charges, the state introduced statements the defendant made to police officers after he took a voice stress test. The defendant appealed his conviction and the trial court's denial of his motion to suppress. The court of appeals certified the appeal to the supreme court for clarification of the standards governing the admissibility of statements made close in time to voice stress tests.

    The supreme court affirmed in an opinion written by Justice Ziegler. At issue was the admissibility of statements made by a defendant after the defendant has taken a polygraph or voice stress test; statements made during such tests are inadmissible. The court treated these two tests as equivalent (see ¶ 20). The governing analysis requires the court "to determine whether a defendant's statement was given at an interview totally discrete from the voice stress analysis. If the defendant's statement was given at an interview that was totally discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible" (¶ 21).

    On the record before it, the court held that the voice stress test and the subsequent statement were discrete events. This determination is governed by a multi-factor analysis (see ¶23). Although little time passed between the examination and the interview, "time alone is not dispositive" (¶ 31). In finding that the two were discrete events, the majority opinion emphasized the following: "Two different officers were involved - one conducted the examination and the other conducted the interview. Before any statement was made, Detective Buenning stated, `I'm finished here,' closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms" (¶ 30). The court also determined that the interview statements were "voluntary" for due process purposes.

    Finally, the supreme court addressed concerns raised by the court of appeals in its certification, and the state in its brief, to the effect that no justifiable reason supported the exclusion of statements made during a polygraph or voice stress test. The court said that the discrete-event standard is compelled by rules of privilege found in Wis. Stat. chapter 905, which effectively suppress statements made during the polygraph (or voice stress) test but not those made in a separate, otherwise voluntary interview (see ¶¶ 43-45).

    Justice Bradley, joined by Chief Justice Abrahamson, dissented and concluded that the interview here was not discrete from the voice stress test. Accordingly, Davis's later statements should have been suppressed.

    Plain Error Doctrine - Improperly Admitted Evidence and Improper Closing Argument by Prosecutor

    State v. Jorgensen, 2008 WI 60 (filed 13 June 2008)

    The defendant was convicted by a jury of bail jumping, fifth-offense operating while intoxicated, fifth-offense operating with a prohibited alcohol concentration, and operating a motor vehicle after revocation of his operating privilege. On this appeal he advanced several arguments attacking his convictions. The supreme court, in a majority decision authored by Justice Ziegler, concluded that the plain error doctrine warranted reversal of the convictions.

    The plain error doctrine allows appellate courts to review errors that otherwise would be considered waived by a party's failure to object. Plain error is error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time the error occurred (see ¶ 21). "If the defendant shows that the unobjected to error is fundamental, obvious, and substantial, the burden then shifts to the State to show the error was harmless. To determine whether an error is harmless, this court inquires whether the State can prove `beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[].' This court has identified several factors to assist in determining whether an error is harmless: (1) the frequency of the error; (2) the importance of the erroneously admitted evidence; (3) the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence; (4) whether the erroneously admitted evidence duplicates untainted evidence; (5) the nature of the defense; (6) the nature of the State's case; and (7) the overall strength of the State's case. If the State fails to meet its burden of proving that the errors were harmless, then the court may conclude that the errors constitute plain error" (¶ 23) (citations omitted).

    In this case the judge and the prosecutor made several errors during trial, and defense counsel did not object. For example, the following errors occurred as a result of the court reading to the jury a transcript from an earlier court hearing in an unrelated case: 1) The jury heard about other acts such as prior convictions and pending charges for operating while intoxicated. 2) The jury heard about the fact that a preliminary breath test was conducted during that earlier court proceeding because of concerns about the defendant's state of sobriety at the hearing and the results of that test. 3) Inadmissible hearsay was admitted. 4) The jury heard about information that was not subject to confrontation, such as the judge's remarks and the prosecutor's commentary regarding the preliminary breath test, their personal observations of the defendant at the earlier court hearing, and their conclusions about his guilt. 5) The prosecutor asserted personal knowledge of the facts. 6) The jury heard information regarding the judge's participation, including his perceptions and conclusions, at the prior proceeding (see ¶ 28). Errors that were not objected to also occurred during the prosecutor's closing argument, including the prosecutor's reference to the defendant as a "chronic alcoholic" (¶ 30).

    The supreme court concluded that the defendant "was denied his right to confrontation and due process because of the transcript being read by the trial judge, who also presided over [the earlier court proceeding described above], and the prosecutor's inappropriate statement during closing argument" (¶ 33). It held that "the unobjected to errors of the judge and the prosecutor in this case are fundamental, obvious, and substantial" (¶ 54). Further, by applying the harmless-error factors catalogued above, the court concluded that "the errors here were not harmless and … the State has not met its burden of proof in that regard. Under the facts presented, we simply cannot say that it is clear beyond a reasonable doubt that a rational jury would have found [the defendant] guilty absent the errors. The errors were so fundamental, obvious and substantial that we cannot discern whether absent these errors, the State would still have successfully convicted [the defendant]. These errors likely affected the jury's verdict" (¶ 52). Accordingly, the court reversed the convictions and remanded the case for a new trial.

    Chief Justice Abrahamson filed a concurring opinion that was joined in by Justices Bradley and Butler.

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    Recorded Statements - Oral Communications

    State v. Duchow, 2008 WI 57 (filed 10 June 2008)

    Duchow, a school bus driver, was charged with threatening to harm a disabled child who was on his bus. The verbal threats were recorded on a machine placed in the child's backpack by his parents, who became concerned when the boy's conduct changed and he became fearful of riding the bus. Duchow moved to suppress the recorded statements on the ground that the recording violated the state's electronic surveillance laws. The circuit court denied the motion to suppress but the court of appeals reversed.

    A unanimous supreme court, in an opinion written by Justice Roggensack, reversed the court of appeals (thereby affirming that the recording of the statements comported with the electronic surveillance laws). The prime issue was whether Duchow's statements constituted "oral communications" within the meaning of Wis. Stat. section 968.27(12), which is governed by a reasonable expectation standard. The state and the defense disagreed as to whether the standard points to an expectation of privacy generally or an expectation regarding the likelihood of interception.

    The supreme court followed the "overwhelming abundance of federal case law that interprets `oral communication' to incorporate a reasonable expectation of privacy," not of interception (¶ 19). Duchow undeniably held a subjective expectation of privacy in the statements he made, but the court held that the expectation was objectively unreasonable under the circumstances (that is, society would not accept it). "The factors we have selected are neither an exclusive, nor a mandatory, list. The relevant factors will vary, depending on the facts each case presents. Here, we conclude that the place or location [the school bus] where the statements were made and the potential for the statements to be reported are the most significant factors" (¶ 24). The opinion elaborated on the court's reasoning with respect to these two factors.

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    Comprehensive General Liability Policy -Advertising Injury

    Acuity v. Bagadia, 2008 WI 62 (filed 18 June 2008)

    Acuity issued to a software business, UNIK, a comprehensive general liability (CGL) policy that covered "advertising injuries." UNIK did business in Wisconsin. Symantec sued UNIK in an Oregon federal court, alleging various copyright and trademark infringements. Acuity contended that it had no duty to defend against or to cover the claims. The federal court found against UNIK and assessed damages of nearly $1 million. Acuity brought this case to contest coverage. The circuit court ruled that Acuity's policy covered the damages, and the court of appeals affirmed.

    The supreme court, in an opinion written by Justice Roggensack, affirmed. In deciding that the CGL policy covered the advertising injury found by the federal court, the Wisconsin Supreme Court applied the three-step test set forth in Fireman's Fund Ins. Co. v. Bradley Corp., 2003 WI 33, 261 Wis. 2d 4, 660 N.W.2d 666: "(1) Does UNIK's conduct fit within an offense the policy enumerates? (2) Did UNIK engage in advertising activity? (3) Is there a causal connection between UNIK's advertising activity and the damages?" (¶ 16). The court applied each question separately to both the copyright infringement and the trademark infringement. As to the first question, Acuity conceded that copyright infringement was an enumerated offense under the CGL but argued that trademark violations were not. The court held that based on case law "and the evolution of the standard CGL policy form, we conclude that the `infringement of title' provision in Acuity's CGL policy encompasses claims of trademark infringement" (¶ 29).

    The court also held that the answer to the second question, for both the copyright and the trademark infringements, was yes. The court observed that the ambiguity of the term "advertising" compelled a liberal construction in favor of affording coverage (see ¶ 42). Finally, in addressing the third step, causation, the court rebuffed Acuity's argument that the court should apply something other than a "materially contribute" standard (¶ 53).

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    Municipal Law

    Zoning - Substantive Due Process - Challenge to Ordinance that Does Not Provide for Any Uses as of Right

    Town of Rhine v. Bizzell, 2008 WI 76 (filed 1 July 2008)

    The Manitowoc Area Off Highway Vehicle Club purchased 77 acres of land in an area of the town of Rhine. The area is zoned as B-2 Commercial Manufacturing and Processing. Within this classification there are no permitted uses of the property as of right, although the relevant ordinances do identify a number of conditional uses to which the property may be put. In the parlance of zoning laws a "permitted use" is "as of right," whereas "a conditional use does not provide that certainty with respect to land use. Conditional uses are for those particular uses that a community recognizes as desirable or necessary but which the community will sanction only in a controlled manner" (¶ 20).

    The club pursued a facial attack on the zoning ordinance, claiming that it operates as a denial of substantive due process. The U.S. Supreme Court has recognized a landowner's right to substantive due process in zoning cases and has held that "a zoning ordinance is unconstitutional when its provisions are clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or general welfare" (¶ 29) (citations and internal quotes omitted). The circuit court concluded that "a zoning ordinance which bars all uses within a district is unreasonable" (¶ 12). It further stated that "a zoning ordinance which permits no uses within a district is confiscatory in nature and oppressive" (id.). Accordingly, the circuit court held that the zoning ordinance was unconstitutional. The town appealed, and the court of appeals certified the case to the supreme court, which granted certification.

    In a majority opinion authored by Justice Ziegler, the supreme court concluded that the zoning ordinance under scrutiny "is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare" (¶ 34). Said the court, "Certainly, municipalities may regulate where and under what circumstances certain less desirable uses, such as salvage yards and stockyards, may be developed. However, here no justification exists for precluding all uses in the B-2 District and only providing the landowner with the possibility of obtaining a conditional use permit. Ordinances can be drafted so the acceptable uses as of right do not conflict with the conditional uses. Municipalities have the power to zone property and restrict where particular undesirable uses may be developed within the municipality. However, zoning that restricts the land such that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals or general welfare of the public in order to withstand constitutional scrutiny. In this case, the restricted use of the B-2 District land does not bear a substantial relation to the public health, safety, morals or general welfare" (¶ 38).

    Expanding on its holding, the majority continued: "To be clear, after today, municipalities still have ample authority to regulate land use - and they should. Such regulation is an appropriate legislative function; it can serve to protect the health, safety and welfare of the public, and it encourages well reasoned growth. The issuance of conditional use permits also is an appropriate function for municipalities. Municipalities certainly have broad authority to restrict land use, but the district at issue today provides for no permitted use as of right, and the only use is garnered through the possibility of obtaining a conditional use permit. No reasonable justification exists for such excessive government control and restriction - especially when that government control is set against land use rights, and the control bears no substantial relation to the public health, safety, morals or general welfare" (¶ 62).

    Chief Justice Abrahamson filed a concurring opinion.

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