Wisconsin Lawyer: 2008 – 09 Significant Supreme Court Decisions:

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    2008 – 09 Significant Supreme Court Decisions

    The authors highlight what they believe are the most significant decisions issued by the Wisconsin Supreme Court during its 2008-09 term.

    Daniel S. Elger

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 10, October 2009

    Capitol In the authors’ view, the following cases represent some of the most significant Wisconsin Supreme Court decisions from the 2008-09 term, a term in which the court issued 57 decisions. Several of the cases announce new rules, and in some instances, they signal additional issues on the near horizon. The cases described below are arranged by category (first civil, then criminal) and within these categories by order of release.

    Civil Cases

    Successive Insurance Policies. The supreme court accepted certification from the Seventh Circuit Court of Appeals to decide three questions affecting interpretation of successive commercial general liability policies purchased by an asbestos products manufacturer. In Plastics Engineering Co. v. Liberty Mutual Insurance Co.,1 the court, led by Justice Ziegler, interpreted the term occurrence to mean one claimant’s repeated exposure, ruled that Wis. Stat. section 631.43(1) does not apply to successive insurance policies, and held that the all sums method should be used to allocate losses among multiple, successively-issued policies.

    First, the court was asked to interpret occurrence as used in the policies and as applied to circumstances in which several individuals claimed injury from long-term exposure at various manufacturing locations. The policies defined occurrence as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Liberty had argued that occurrence gets its meaning from the limits of liability language of the policy, namely “exposure to the same general conditions,” and is treated as exposure arising out of one occurrence. Liberty contended that occurrence should be interpreted from the standpoint of the insured, and as such, the manufacture and sale of asbestos products by Plastics Engineering (Plenco) without warning constitutes one occurrence regardless of the number of people injured by that conduct. Plenco argued that each individual’s exposure that results in injury constitutes a single occurrence. Other jurisdictions have reached disparate conclusions as to what constitutes an occurrence in asbestos-related claims. The court ultimately held (relying on a close reading of the policies, a focus on the injured person, and construing ambiguous language in favor of coverage) that each claimant’s repeated exposure to asbestos is one occurrence. This view is rooted in Wisconsin’s cause theory for determining the number of occurrences.

    Second, the court concluded that Wis. Stat. section 631.43(1), which limits the use of other-insurance provisions when there are two or more policies, does not apply to noncumulation clauses that attempt to limit the coverage afforded under successively-issued policies to only the first-triggered policy. According to the court, section 631.43(1) applies when the policies indemnify an insured against the same loss, and during the same period. Given this requirement of contemporaneousness, the statute limits the applicability of other insurance clauses only in concurrent policies and does not limit the effect of clauses in successive policies. The court also rejected Liberty’s argument that section 631.43(1) applies exclusively to automobile policies.

    Finally, the court addressed the extent of Liberty’s duty to defend and indemnify when a claimant’s injury does not occur entirely within a policy period. Plenco argued that Liberty was obligated to indemnify all sums up to its policy limits. Liberty urged that it should only be obligated for a pro rata proportion. Relying primarily on the policy language (including the definition of occurrence, which includes continuous or repeated exposure, and the aggregate liability section, which contemplates coverage for damages that fall outside the policy period), the court reasoned that the all-sums approach is supported by Wisconsin’s continuous-trigger theory, which requires all policies in place during the injury to respond. Under this approach, any one policy may have to respond to all the damage even though the insured may have been self-insured for part of the time. Had Liberty wanted to include a pro-rata allocation, it should have inserted those words into the policy. Interpreting the language drafted by Liberty was not a “rewrite” of the contract.

    Chief Justice Abrahamson concurred to discuss federal certification procedure and to register her view that the majority overreached in its response to the federal certification by effectively deciding the merits. Justice Gableman, the lone dissenter, disagreed as to whether the all-sums allocation approach should be used.

    Finality. The court of appeals erred in dismissing with prejudice an appeal of an order denying a motion for attorney fees and costs because the order did not dispose of the matter in its entirety.

    In Kenosha Professional Firefighters v. City of Kenosha,2 the firefighters union had petitioned the circuit court for a peremptory writ of mandamus compelling the city to disclose certain public records. The court granted the writ subject to some limitations. The firefighters then applied for statutory attorney fees, damages, and costs, but their request was denied as untimely on Jan. 19, 2007. The circuit court denied the firefighters’ request for reconsideration on April 26, 2007. The firefighters then appealed both the Jan. 19 and April 26, 2007 fee decisions.

    The court of appeals concluded that the Jan. 19, 2007, decision was a final order and that the firefighters’ appeal from that decision filed more than 90 days later was untimely. The court of appeals also concluded that the April 26, 2007, decision did not decide any new issues and therefore that it lacked jurisdiction to hear an appeal of the reconsideration order.

    The supreme court, in a unanimous decision authored by Chief Justice Abrahamson, recognized that Wis. Stat. section 806.03(1) defines a final judgment or final order as one “that disposes of the entire matter in litigation as to one or more of the parties.” Relying on its recent decisions in Tyler v. Riverbank3 and Wamboldt v. West Bend Mutual Insurance Co.,4 the court concluded that neither order at issue contained an explicit statement dismissing or adjudging the entire matter regarding attorney fees, statutory damages, or litigation costs between the firefighters and the city. Absent such an explicit statement, the court engaged in liberal construction so as to preserve appellate rights. It held that the circuit court had merely decided a substantive issue before it as opposed to taking the additional step necessary to dispose of the entire matter of attorney fees, statutory damages, and litigation costs. The appeal should have been dismissed merely as premature and therefore without prejudice. Moreover, the underlying public records request was not yet fully disposed of, and thus the attorney fee order essentially was an interim, nonfinal order.

    Justice Roggensack wrote separately to argue that the peremptory writ’s lack of finality should have been the sole reason to overturn the court of appeals.

    Sovereign Immunity and Injunctions. In a unanimous decision, the supreme court held in PRN Associates LLC v. Department of Administration5 that a losing bidder in a development project had to seek a timely injunction to protect its interests against the state.

    In October 2002, U.W.-Milwaukee and the U.W. System issued a request, pursuant to Wisconsin Administrative Code chapter Adm 10, for proposals for a building renovation. An evaluation committee selected Prism’s bid. After a losing developer protested, the system withdrew its request for approval, explaining that the State Building Commission, whose approval was essential for the project, did not support the renovation. In March 2004, the state issued a second request for proposals. Prism submitted another bid and filed notices of intent to protest the system’s decision to withdraw consideration of its first proposal. Prism lost its protest and its subsequent appeal to the Department of Administration (DOA). The state ultimately selected another developer, WEAS, and Prism protested that decision. Prism again lost its protest and its appeal to the DOA. Meanwhile, WEAS completed the project. Prism pursued a petition for review in Ozaukee County and a complaint for declaratory judgment in Dane County but did not seek an injunction. The Ozaukee County Circuit Court dismissed Prism’s claim as moot. The Dane County Circuit Court dismissed Prism’s claim for lack of personal jurisdiction based on sovereign immunity. The court of appeals affirmed both dismissals.

    Writing for the supreme court, Justice Bradley held that no relief was available to Prism even if all its factual and legal allegations were true. Prism had requested two distinct remedies: 1) money damages for the value of its originally selected proposal or 2) award of the contract. The court concluded that a money-damages remedy would be contrary to the purpose of chapter Adm 10 because the rules are designed to ensure that contracts for services are in the state’s best interests. The rules also help ensure that the state procures the best work at the lowest possible price. A damages remedy would require taxpayers to pay twice for a single completed project. As to the second remedy sought, the court acknowledged that the project already had been completed and deemed it impractical to award Prism a contract for a finished project. 

    Beth Ermatinger Hanan Daniel S. Elger

    Beth Ermatinger Hanan, U.W. 1996, is an appellate and trial practitioner at Gass Weber Mullins LLC, Milwaukee. She also is vice chair of the Wisconsin Judicial Council.

    Daniel S. Elger, Marquette 2005, is an associate in the firm, practicing in commercial litigation and products liability.

    The court stressed that if Prism believed it was entitled to the contract, Prism should have sought a temporary injunction to prevent awarding of the contract to WEAS. Prism had argued that an injunction was unavailable because sovereign immunity precludes a lawsuit against the state unless the legislature consents to the suit. But the court explained that although no statute provides express legislative consent to such a suit, a general exception to the rule of state immunity permits enjoining state officers and state agencies from acting beyond their constitutional or jurisdictional authority.6

    Next, the court held that an action for declaratory relief against the state is permitted if the action is intended to secure prospective relief. None of the declaratory relief that Prism sought related to the state’s future conduct, and as such, Prism’s claim was not authorized by Wisconsin’s Declaratory Judgments Act, Wis. Stat. section 804.06. Last, Wis. Stat. section 775.01, which waives sovereign immunity and authorizes suit against the state for contract actions that would render the state a debtor, was inapplicable for two reasons. Prism had not met the conditions precedent for filing such a claim: 1) the claim must be submitted to the legislature; 2) the claim must be denied; and 3) the claimant must file a bond with the clerk of courts.7 Also, the damages Prism sought were not the type authorized under section 775.01. Section 775.01 authorizes suits for amounts due for goods or services that have been sold or delivered to the state or funds the state has received to which the plaintiff is entitled.8

    Statutes of Limitation – Wrongful Death. The three-year statute of limitation for filing a wrongful death action arising from alleged medical malpractice is measured from the date of the negligent treatment, not the date of the death, according to the 4-3 majority decision in Estate of Genrich v. OHIC Insurance Co.9

    Doctors left a sponge inside Robert Genrich’s abdominal cavity during ulcer repair surgery on July 24, 2003. Although the sponge was later removed, Genrich died on Aug. 11, 2003, from sepsis allegedly associated with the retained sponge. On Aug, 9, 2006, Genrich’s estate filed a medical malpractice claim, and Mrs. Genrich filed a wrongful death claim. The defendants moved for summary judgment, arguing that Wis. Stat. section 893.55(1m)(a) time-barred both claims. The circuit court granted summary judgment, and the court of appeals affirmed.

    At the supreme court, the estate argued that under Wis. Stat. section 893.55(1m)(a), an injury does not occur until the underlying condition is no longer treatable, and because Genrich’s condition did not become irreversible until on or after Aug. 9, 2003, the claims were timely. In an opinion authored by Justice Roggensack, the majority held that a condition need not be untreatable before an injury is held to occur; rather, an actionable injury arises when the negligent act or omission causes a greater harm than that which existed at the time of the negligent act or omission. In other words, an injury does not occur until there is a “physical injurious change.” Under this analysis, the court concluded that Genrich’s injury occurred on the date on which the sponge was left in his abdomen.

    Next, the defendants asserted that the wrongful death claim was time-barred because Mrs. Genrich filed it more than three years after her husband was injured by medical negligence. Mrs. Genrich argued that she could not file a wrongful death claim until her husband’s death.

    The court agreed with the defendants, holding that a wrongful death claim is derivative of a medical negligence claim, for which the applicable statute of limitation is section 893.55(1m)(a). Because the accrual date for claims under that section is the date of injury caused by the underlying act of medical negligence, and the injury Genrich suffered occurred more than three years before the filing of the wrongful death claim, the claim was time-barred. The court acknowledged that its holding will mean that some claims may accrue before they can be brought, but said that “harshness” was not a permissible basis to reach a different conclusion.

    Although agreeing with the majority that the medical malpractice claim was time-barred, Justice Bradley, joined by Chief Justice Abrahamson and Justice Crooks, deemed the majority’s holding unclear and predicted future confusion as a result of an unnecessary superimposing of the negligent act (leaving the sponge) on the ultimate injury (infection from the sponge).

    Justice Crooks, joined by Chief Justice Abrahamson and Justice Bradley, separately concluded that the wrongful death entitlement statute, Wis. Stat. section 895.03, and accompanying case law make death a necessary condition to sue.

    Product Liability. Two decisions released on the same day reflect a split on the court as to whether it is time to consider adopting portions of the Restatement (Third) of Torts. In Horst v. Deere & Co.10 and Godoy v. E.I. DuPont,11 the justices were evenly divided on that issue, even though it was not raised directly in the parties’ briefs.

    The Horst majority opinion, authored by Justice Gableman, considered whether Wisconsin has adopted a bystander contemplation test. Parents of a young child injured by a lawn mower being operated in reverse argued that the jury instructions incorrectly described when a product is unreasonably dangerous to a bystander. The majority acknowledged its broad statement in Howes v. Hansen12 that there is no essential difference between an injured user or consumer and an injured bystander. Moreover, as a matter of policy, there is no good reason to limit recovery only to injured users and consumers. But the distinction on appeal concerned who is injured and the injured person’s expectations. Whether a product is unreasonably dangerous based on the expectations of an ordinary consumer is a different question from whether the product is unreasonably dangerous based on the expectations of an ordinary bystander. After tracing a number of bystander injury decisions and cases explaining the consumer contemplation test, the court ultimately retained the consumer contemplation test, described in the Restatement (Second) of Torts, § 402A, for all strict product-liability claims in Wisconsin.

    Having ruled based on the law as it is, Justice Gableman wrote a concurrence describing his view as to what Wisconsin law should be. Joined by Justice Prosser and Justice Roggensack, he urged adoption of the Restatement (Third) of Torts: Product Liability, § 2(b), for design-defect cases. He viewed the newer Restatement as embodying a more objective standard, which holds manufacturers and sellers accountable for all foreseeable injuries that can be prevented with a reasonable alternative design. The Restatement (Second) of Torts was not drafted to address design-defect cases, but only manufacturing-defect situations. Retaining that version for design-defect cases is “akin to insistence upon a horse-and-buggy approach in a space age era.” Justice Gableman perceived that the consumer contemplation test leaves bystanders arguably less protected than they should be.

    Justice Crooks regarded the debate on whether to adopt the Restatement (Third) of Torts as premature and unsupported, given only “glancing references” to that Restatement in the parties’ briefs. To do otherwise risked creating a sea change in Wisconsin law that would undo 42 years of precedent.

    Justice Bradley dissented, finding flaws in the challenged jury instruction and verdict questions and also objecting to an unwarranted debate on adoption of the Restatement (Third) for design-defect claims made by bystanders.

    In Godoy v. E.I. DuPont, released the same day as Horst, a unanimous 6-0 court led by Justice Bradley concluded that a design-defect claim cannot be brought against manufacturers of white lead pigment when the alleged defective design is the presence of lead, an inherent characteristic of the product. Godoy is one of several plaintiffs with product liability and negligence claims pending against manufacturers of lead pigment under a risk-contribution theory. The defendants moved to dismiss Godoy’s design-defect claims (leaving intact his failure-to-warn claims), arguing that white lead carbonate cannot be made without lead, and therefore that the plaintiff actually was complaining that the defendants should have made a different product. The circuit court and the court of appeals agreed. In affirming dismissal, the court of appeals also discussed comments in the Restatement (Third) of Torts: Product Liability that a design-defect claim requires proof of a reasonable alternative design. The supreme court agreed that a claim for defective design cannot be maintained when the presence of lead is the alleged defect in design and its very presence is a characteristic of the product itself.

    Justice Prosser, joined by Justices Ziegler and Gableman, wrote a lengthy concurrence, making a fuller case for adopting the Restatement (Third) of Torts, § 2(b), in design-defect cases, and arguing that the majority opinion effectively adopted a “no reasonable alternative design” rationale. He voiced concern that section 402A no longer reflects the complexities that have developed in product liability law over the past 45 years. Wisconsin is one of only six states that “clings to the consumer contemplation test” as the sole means of analyzing design-defect claims.

    Justice Bradley’s concurrence, joined by Chief Justice Abrahamson, urged judicial restraint against Justice Prosser’s call to more fully defend or surrender the consumer contemplation test. In Justice Bradley’s view, none of the parties had asked the court to deviate from decades of case law and she reinterated the “sea change” apprehension expressed in Justice Crooks’s Horst concurrence. Some jurisdictions that have adopted the newer Restatement “are now back-tracking,” and Justice Bradley identified a trend to return to the pro-consumer policies under section 402A. Justice Bradley cautioned that the concurrences in Godoy and Horst, and the 3-3 splits on rationale in each case, leave Wisconsin law unsettled. 

    Finally, Justice Crooks concurred to reiterate the need for full briefing and oral argument on the competing merits of the two Restatements. Thus, there is no sea change yet, although the waves are high.

    First Amendment. Expanding the scope of the primary-duties test under free-exercise analysis, a 4-3 majority in Coulee Catholic Schools v. LIRC13 held that the free exercise clause of the First Amendment of the U.S. Constitution and the freedom of conscience clauses in article I, section 18 of the Wisconsin Constitution precluded employment discrimination claims by a Catholic-school teacher.

    Wendy Ostlund, a 53-year-old teacher employed by the Coulee Catholic Schools (CCS) cooperative, was laid off along with nine other teachers in 2002. Ostlund, who had not yet completed her state teaching certification, was replaced by a 35-year-old teacher who was certified to teach elementary school. Ostlund filed an age discrimination complaint with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development.

    The ERD administrative law judge (ALJ) determined that although Ostlund engaged in religion-related activities, her primary duty was to instruct her students in a core of secular disciplines, and the ALJ thus ruled that adjudication of Ostlund’s complaint would not violate CCS’s free exercise rights. The Labor and Industrial Review Commission (LIRC), the circuit court, and the court of appeals all affirmed.

    Justice Gableman, writing for the majority, reversed. CCS had argued that Ostlund’s teaching position was ministerial and therefore triggered its First Amendment rights. Under Rayburn v. General Conference of Seventh-day Adventists,14 the ministerial exception shields certain positions in a religious organization and is grounded in the idea that the “introduction of government standards [in]to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state.”15 The Rayburn decision set out a primary-duties test for determining whether a position is ministerial, although courts have differed as to its exact use and application.

    Ultimately, the court invoked a functional approach to the primary-duties test. This approach focuses on whether a position is important to the spiritual and pastoral mission of the church, in contrast to a quantitative approach that focuses on whether religious tasks encompass the largest share of the particular position. The first step in the functional approach is an inquiry into whether the organization in both statement and in practice has a fundamentally religious mission. The second step is to determine how important or closely linked the employee’s work is to the fundamental mission of that organization. Both inquiries are highly fact sensitive.

    Applying this new standard, the majority concluded that Ostlund was not simply a public school teacher with an added obligation to teach religion. Instead, she was an important instrument in a faith-based organization’s efforts to pass on its faith to the next generation. As such, the state and federal constitutions did not permit the state to interfere with employment decisions regarding persons who are closely linked to the CCS’s religious mission.

    In dissent, Justice Crooks took issue with the majority’s alteration of the primary-duties test to include a self-styled functional analysis and a selective application of the facts. Chief Justice Abrahamson and Justice Bradley joined the dissent.

    Criminal Cases

    Right to Public Trial. As part of enforcing a sequestration order, the Wisconsin Supreme Court held unanimously in State v. Ndina16 that most of a criminal defendant’s family may be excluded from attendance at the defendant’s trial.

    The state charged Ndina with attempted first-degree intentional homicide while using a dangerous weapon. The victim, Ndina’s nephew, was stabbed twice in the back during a family gathering. Early in Ndina’s trial, the circuit court issued a sequestration order applying to most of the potential witnesses, many of whom were members of Ndina’s family. After the court became concerned that certain family members were violating the spirit of the sequestration order, it banned from the courtroom all family members except the defendant’s mother. The ban expired after the jury heard all the testimony. Defense counsel did not object to the court’s order.

    After his conviction, Ndina asked the circuit court for a new trial. Ndina argued the circuit court violated his Sixth Amendment right to a public trial when it excluded family members from the courtroom. The circuit court agreed and ordered a new trial, but the court of appeals reversed.

    In an opinion authored by Chief Justice Abrahamson, the supreme court concluded that no Sixth Amendment violation occurred.

    The court used a two-step analysis to determine whether Ndina’s Sixth Amendment right to a public trial had been violated. It first determined whether the closure implicated the Sixth Amendment and the right to a public trial. If so, the court would analyze whether the closure was justified under the circumstances of the case.

    Under the first step, the circuit court’s exclusion of every family member except the defendant’s mother plainly implicated the values served by the Sixth Amendment right to a public trial because a criminal defendant’s family may play a critical role in verifying that the defendant is fairly dealt with and not unjustly condemned. The defendant’s family also may play an important role in keeping the jury alive to a sense of its responsibility and to the importance of its functions.

    Under the second step, the court held that closure is justified when four conditions are met: 1) the party asking for the proceedings to be closed shows an overriding interest that is likely to be prejudiced by a public trial; 2) the circuit court narrowly tailors the closure to protect that interest; 3) the court considers alternatives to closure; and 4) the court makes findings sufficient to support the closure. In this case, the circuit court met all the requirements, and the closure therefore was justified. The supreme court instructed that generally the trial judge should hold an evidentiary hearing before ordering closure, but here the record was sufficient to support closure even without a hearing.

    In a concurrence, Justice Prosser, joined by Justices Ziegler and Gableman, concluded there was no Sixth Amendment violation, but in his view Ndina waived the right to assert a violation of his public-trial right by waiting too long after his conviction and sentence to raise the issue.

    Warrantless Entry. In State v. Ferguson,17 the supreme court held that a warrantless entry of a residence to effectuate an arrest is permissible if the offense is jailable.

    Wausau police officers responded to a report of an attempted break-in at a residence. On arrival, they spoke to the complainant, who stated that Ferguson had pounded on his door and threatened to evict him, even though Ferguson was not the landlord. The police went to Ferguson’s apartment, where she allegedly became belligerent and also shoved her nephew, who had tried to calm her. The officers then entered Ferguson’s apartment without a warrant and arrested her for misdemeanor disorderly conduct. She resisted arrest and was charged with obstruction of an officer.

    At trial, Ferguson requested a specific jury instruction explaining the lawful authority element of the obstruction charge under Wis. Stat. section 946.41(1).18The circuit court rejected Ferguson’s request and instead instructed the jury that “officers act with lawful authority if their acts are in accordance with the law…. An arrest is lawful when the officer has reasonable grounds to believe that the person is committing, has committed, or is about to commit a crime.” The jury convicted Ferguson of disorderly conduct and obstruction. The court of appeals reversed, concluding that the instruction was an incorrect statement of the law, and it remanded for a new trial.

    At the supreme court, Ferguson argued that the police did not act with lawful authority because they entered her home without a warrant. The state countered that the police were lawfully within Ferguson’s home because they entered due to the exigent circumstance of a threat to her nephew’s safety. In reversing and upholding the conviction, the supreme court recognized that the extent to which law enforcement officers are permitted to rely on exigent circumstances for a warrantless entry of a home is related to the seriousness of the offense.

    In State v. Mikkelson19 the court of appeals had imposed a bright-line rule that police are justified in making a warrantless entry into a home only when the legislature had labeled the underlying offense a felony. The Ferguson majority overruled Mikkelson on the ground that it misinterpreted U.S. Supreme Court precedent.20 The critical factor in determining whether an exigency exists is the penalty that may attach. As such, in evaluating whether a warrantless entry is justified by exigent circumstances, police and courts should consider whether the underlying offense is a jailable or a nonjailable offense rather than whether the offense is a felony or a misdemeanor.

    In this case, the court held that because the disorderly conduct with which Ferguson was charged was a jailable offense, a jury instruction on exigent circumstances could have been given. Nonetheless, the instruction given set out the law for the jury to convict Ferguson on the basis of her struggle with police outside her home. The court also held that an entry based on probable cause but lacking exigent circumstances nonetheless supports lawful continued custody. That is, once Ferguson was removed from her house, the police were not required to rearrest her for disorderly conduct to make her continued custody lawful. In sum, the court concluded that the error in the instruction was harmless.  

    Justices Bradley and Crooks, joined by Chief Justice Abrahamson, wrote concurrences in which they contended that Mikkelson should not have been overruled and the majority’s new test would prove to be unworkable. Workability of the test may be demonstrated as soon as the 2009-10 term, when the court addresses the issue of the warrantless search of a cell phone.21

    Required Disclosures – Self Defense. In State v. McClaren,22 the supreme court held that criminal defendants who wish to argue self-defense at trial must disclose to the prosecution particular evidence of which the defendant was aware at the time of the alleged crime. Specifically, the defendant must disclose the victim’s past violent acts that the defendant intends to introduce evidence of at trial.

    McClaren was involved in an altercation with Goehl that ended with McClaren hitting Goehl with a pickaxe. Goehl said he had been attacked without provocation; McClaren claimed self-defense. McClaren was charged with several crimes including attempted first-degree intentional homicide. In connection with his claim of self-defense, McClaren sought a ruling on the admissibility of Goehl’s extensive criminal record and time in prison. This type of evidence is known as McMorris23 evidence. The circuit court ruled that McClaren could introduce this evidence, but the court required McClaren to disclose to the prosecution and the court the nature of the evidence he intended to offer so that the court could make a pretrial determination of its relevance and admissibility. McClaren objected on the ground that the court had no authority to require disclosure of such evidence and that doing so violated certain constitutional rights. He filed a petition for leave to appeal, and the court of appeals reversed.

    In a 5-1 decision authored by Justice Crooks, the supreme court reversed the court of appeals. The supreme court held that the circuit court’s order comported with Wis. Stat. section 906.11, which authorizes the court to exercise control over the presentation of evidence. This case primarily involved a question of timing in that the circuit court foresaw a potential obstacle to a smoothly run trial and took the necessary steps within its inherent power to avoid the obstacle.

    The supreme court further held that there was no constitutional bar to the exercise of the circuit court’s authority, given that ascertainment of the truth is the primary objective of a trial and the circuit court’s order served that objective because McClaren chose to offer the disputed evidence at trial. Because the circuit court imposed disclosure requirements equally on both parties, there was no due process violation.

    In dissent, Justice Bradley concluded that the circuit court’s order was essentially a discovery device, governed by Wis. Stat. section 971.23. Mandatory disclosure is precluded for types of evidence not enumerated in the discovery statute. Further, by relying on inherent authority, the majority opened wide the gates of pretrial discovery in criminal cases.


    1Plastics Eng’g Co. v. Liberty Mut. Ins. Co., 2009 WI 13, 315 Wis. 2d 556, 759 N.W.2d 613.

    2Kenosha Prof’l Firefighters v. City of Kenosha, 2009 WI 52, __ Wis. 2d __, 766 N.W.2d 577.

    32007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686.

    42007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670.

    5PRN Assocs. LLC v. Department of Admin., 2009 WI 53, __ Wis. 2d __, 766 N.W.2d 559.

    6City of Kenosha v. State, 35 Wis. 2d 317, 151 N.W.2d 36 (1967).

    7Wis. Stat. § 775.01.

    8Koshick v. State, 2005 WI App 232, 287 Wis. 2d 608, 706 N.W.2d 174.

    9Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, __ Wis. 2d __, 766 N.W.2d 559.

    10Horst v. Deere & Co., 2009 WI 75, __ Wis. 2d __, 768 N.W.2d 72.

    11Godoy v. E.I. duPont de Nemours, 2009 WI 78, __ Wis. 2d __, 768 N.W.2d 674.

    12Howes v. Hansen, 56 Wis. 2d 247, 201 N.W.2d. 825 (1972).

    13Coulee Catholic Schools v. LIRC, 2009 WI 88, __ Wis. 2d __, 768 N.W.2d 868.

    14772 F.2d 1164 (4th Cir. 1985).

    15Id. at 1168-69.

    16State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612.

    17State v. Ferguson, 2009 WI 50, __ Wis. 2d __, 767 N.W.2d 187.

    18“Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor.”

    19State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421.

    20Welsh v. Wisconsin, 466 U.S. 740 (1984).

    21State v. Carroll, 2008 WI App 161, 314 Wis. 2d 690, 762 N.W.2d 404 (review granted).

    22State v. McClaren, 2009 WI 69, __ Wis. 2d __, 767 N.W.2d 550.

    23McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).