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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. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

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    Vol. 82, No. 10, October 2009

    Civil Procedure

    Pleadings – Judicial Admissions – Damages

    Olson v. Darlington Mut. Ins. Co., 2009 WI App 122 (filed 23 July 2009) (ordered published 26 Aug. 2009)

    Olson’s complaint in her suit against the defendants asked for less than $75,000, an amount that avoided the case’s removal to federal court. Based on Olson’s complaint, the circuit court granted the defendant’s request for a jury instruction reflecting Olson’s “judicial admission” that her damages were under $75,000.

    In this interlocutory appeal, the court of appeals reversed in an opinion written by Judge Dykman. The court cut to the chase: “While both parties speculate as to the effect of the proposed jury instruction on the jury, our review of the facts reveals no basis for a jury instruction as to the amount demanded in Olson’s complaint. It is undisputed that Olson is limited to a recovery of less than $75,000. This remains true whether or not the jury is informed of that limit. Because a jury instruction that Olson’s recovery is ultimately limited to less than $75,000 would serve no purpose, we conclude that the facts of this case do not warrant that instruction” (¶ 8).

    Nor was Olson’s complaint a judicial admission that she in fact suffered less than $75,000 in damages; rather, her pleading asserted only that “the amount of damages sought and in controversy” is less than that amount. “[T]he fact that Olson decided to demand less than $75,000 to avoid removal to federal court does not mean she suffered less than that amount of damages. It only means that is the maximum amount she may recover. Thus, assuming the trial court determined that Olson’s complaint set forth a judicial admission as to the extent of her damages, we conclude that it erroneously exercised its discretion in doing so” (¶ 17).

    Default Judgment – “Interference” with Justice

    East Winds Props. v. Jahnke, 2009 WI App 125 (filed 7 July 2009) (ordered published 26 Aug. 2009)

    East Winds Properties sued Jahnke for breach of contract. After Jahnke’s lawyer withdrew from representation, Jahnke defended himself but failed to appear at a mandatory pretrial conference and never submitted a pretrial report. The circuit court granted a default judgment based on Jahnke’s omissions.

    The court of appeals affirmed in an opinion authored by Judge Fine. Under Wis. Stat. section 805.03, courts have the authority to grant default judgments when a party has interfered with what the case law terms “the orderly administration of justice” (¶ 13). The record supported the circuit court’s finding that Jahnke had received notice of the scheduling order, despite his claims to the contrary. Moreover, Jahnke’s conduct was sufficiently “egregious” to warrant the default judgment. Jahnke’s omissions included his: 1) failure to attend the scheduling conference, 2) failure to file his witness list, an itemized list of damages, and the pretrial report, and 3) absence from the pretrial conference (see ¶ 15).

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    Criminal Procedure

    Discovery – Computer Hard Drive – Child Pornography Images

    State v. Bowser, 2009 WI App 114 (filed 30 July 2009) (ordered published 26 Aug. 2009)

    The state charged the defendant with several counts of possessing child pornography. The defendant filed a discovery demand seeking copies of all physical evidence pursuant to Wis. Stat. section 971.23(1)(g). When the state objected, the circuit court entered an order that permitted the defense to inspect the images but denied it copies, under a protocol also used in federal prosecutions. The prime concern was to forestall any further dissemination of the images. The defendant appealed this nonfinal order.

    The court of appeals affirmed in an opinion written by Judge Higginbotham. The disputed issue centered on the order denying the defendant a copy of the computer hard drive while permitting the defense to analyze it at a state facility. The court of appeals said that the circuit court properly applied the good cause standard in restricting discovery. “Once the State made a showing of good cause, Bowser then had the burden to either rebut the State’s reasons or demonstrate that his ability to mount an adequate defense would be hampered by the DCI protocol” (¶ 14). The defense failed to carry its burden. “We begin with the proposition that it is reasonable for a court to seek to minimize, within its discretion under Wis. Stat. § 971.23(1) and (6), the risk of distribution of the type of harmful material at issue here. The serious harms associated with the distribution of child pornography are well known” (¶ 16). The state was not required to show that members of the defense team were “untrustworthy” (¶ 17). The risk of dissemination itself justified the limitation. The protocols in place permitted “generous” access.

    The court of appeals explicitly cautioned, however, that “this opinion should not be read as creating a rule that circuit courts should or must generally grant a prosecution request for limited access to computer child pornography evidence. Under the facts before us, the judge would also have acted reasonably in denying the prosecution request, particularly because the defense here presented a proposal outlining the reasonable steps it intended to take to secure the evidence. Rather, we hold that under the facts here the circuit court did not misuse its discretion” (¶ 22). The reasonableness of protective orders is judged on a case-by-case basis. Of particular importance is whether an adequate defense is “hampered” by the order.

    Judge Dykman dissented, contending that the “majority dresses up its adoption of the federal Adam Walsh Child Protection Act (AWCPA) in discretionary jurisprudence, not recognizing that this effectively creates a rule preventing defense attorneys from obtaining some of the very material the State will use in attempting to convict their clients. This is an unusual step, as courts usually defer to legislatures when it comes to laws adopting or failing to adopt policy the state deems wise or unwise. The Wisconsin legislature has not adopted anything like the AWCPA, though it has had ample opportunity to do so” (¶ 25).

    Sufficiency of Evidence – Postconviction Motions

    State v. Miller, 2009 WI App 111 (filed 2 July 2009) (ordered published 26 Aug. 2009)

    Miller fired a shotgun toward the victim’s hip because he thought the victim was going to harm several other people with a screwdriver. Before the shooting, Miller had called 911 for help in dealing with the victim, who had been drinking and who had threatened Miller earlier. Miller claimed self-defense but a jury convicted him of first-degree reckless injury while armed and aggravated battery; no lesser- included offenses were submitted. In a postconviction proceeding, the circuit court vacated both convictions on the ground of ineffective assistance of counsel.

    The court of appeals affirmed in part and reversed in part in an opinion written by Judge Higginbotham. The court held that there was insufficient evidence to support a conviction for first-degree reckless injury, thus precluding any retrial on that charge. In reaching this issue, the court also held that language in earlier cases “to the effect that sufficiency of the evidence claims lack constitutional dimension and therefore may not be raised in a Wis. Stat. § 974.06 motion has been superseded” (¶ 30). The sufficiency of the evidence discussion is necessarily fact-intensive.

    The court of appeals reversed the circuit court’s determination that because of trial counsel’s failure to request a lesser-included offense instruction, Miller was entitled to a new trial on the aggravated battery charge. There was no reasonable basis on which a jury could have acquitted Miller of the aggravated battery but convicted him of a lesser offense, based on Miller’s claim of self-defense (see ¶ 54).

    Finally, the court also rejected several claims of error involving trial counsel’s alleged failure to communicate a plea offer and the judge’s alleged “mismanagement” of the jury.

    Judge Vergeront dissented in part, on the ground that there was sufficient evidence supporting Miller’s conviction for first-degree reckless injury.

    Deferred Prosecution Agreements – Enforcement After Expiration of Agreement

    State v. Kaczmarski, 2009 WI App 117 (filed 9 July 2009) (ordered published 26 Aug. 2009)

    Kaczmarski was charged with second-degree sexual assault of a person who has not attained age 16. In exchange for his guilty plea to the charge, Kaczmarski accepted an offer of a deferred prosecution agreement drafted by the district attorney. After the agreement expired, the state attempted to resume the sexual assault prosecution on the basis of the defendant’s breach of the agreement during the deferral period. The defendant moved to enforce compliance with the agreement and further moved for a dismissal of the assault charge. The circuit court denied the motion and convicted the defendant on the basis of the guilty plea entered earlier in the proceeding. The defendant appealed.

    In a decision authored by Judge Higginbotham, the court of appeals reversed. It found that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement, the district attorney may resume prosecuting Kaczmarski only during the deferral period. The agreement plainly states that, if Kaczmarski violates the agreement, “the District Attorney may, during the period of deferred prosecution prosecute you for this offense” (emphasis added). The appellate court concluded that “the only reasonable construction of the deferred prosecution agreement is that the district attorney may resume prosecuting Kaczmarski for breach of the agreement only before the agreement expires” (¶ 13).

    The state argued that interpreting the deferred prosecution agreement in a way that would result in dismissing the child sexual assault charge results in a contract that violates public policy and, therefore, is an impermissible interpretation. The court disagreed. “As Kaczmarski aptly argues, ‘there is nothing contrary to public policy in contractually limiting the time in which a deferred prosecution can be resumed.’ Furthermore, we see no difference between limiting the time by contract in which a deferred prosecution can be resumed and a statute of limitation that limits the time in which a crime may be prosecuted” (¶ 17).  

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    Environmental Law

    Wind Farms – Power of Local Governments to Regulate Wind Energy Systems – Wis. Stat. section 66.0401

    Ecker Bros. v. Calumet County, 2009 WI App 112 (filed 15 July 2009) (ordered published 26 Aug. 2009)

    This case concerns wind energy systems and the authority of local governments to regulate them. Pursuant to Wis. Stat. section 66.0401(1), a locality may restrict a wind energy system only to preserve or protect the public health or safety, when the restriction does not significantly increase the cost of the system or significantly decrease its efficiency, or when the locality allows for an alternative system of comparable cost and efficiency (see ¶ 1).

    Calumet County enacted an ordinance to restrict wind energy systems pursuant to section 66.0401. The ordinance divides the systems into two categories, small and large, and a set of uniform, across-the-board restrictions controls each category. These restrictions are based on the county’s policy decision that, in all situations, wind energy systems must be bound by the same set of restrictions (see ¶ 12). The plaintiffs (farmers with one wind turbine on their farm who now want to build more of them) challenged the ordinance, contending that the local restrictions cannot be the same for all systems and cannot be created before the fact without knowledge of the facts of an individual project. They asserted that the statutory scheme allows political subdivisions to restrict systems only on a case-by-case basis through conditional use permits (see ¶ 13).

    In a decision authored by Chief Judge Brown, the court of appeals held that “this ‘one size fits all’ scheme [in the Calumet County ordinance] violates the legislative idea that localities must look at each wind system on its own merits and decide, in each specific case, whether the wind system conflicts with public health or safety” (¶ 1). “This determination must be made on a case-by-case basis where the local governing arm first hears the specifics of the particular wind system and then decides whether a restriction is warranted” (id.).

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    Flight – Unfair Prejudice

    State v. Quiroz, 2009 WI App 120 (filed 1 July 2009) (ordered published 26 Aug. 2009)

    A jury convicted Quiroz of assorted sex crimes involving children. On appeal he argued that the trial judge erred in admitting evidence that he had absconded and in giving a related jury instruction. “The flight evidence was presented in three ways at trial: five stipulations about the details of Quiroz’s flight, two extradition documents, and Quiroz’s own testimony about the details of and reasons for his flight” (¶ 4).

    The court of appeals affirmed in an opinion authored by Judge Anderson. “The fact of an accused’s flight is generally admissible against the accused as circumstantial evidence of consciousness of guilt and thus of guilt itself. To be admissible, the defendant’s flight need not occur immediately following commission of the crime” (¶ 18). The court rejected Quiroz’s contention that case law establishes an “automatic exclusion” of flight-related evidence when the defendant has an “independent reason” for flight, particularly when it relates to other crimes for which he is not on trial. Here the trial judge properly exercised his discretion in admitting the evidence. Details of the other offenses were minimized; indeed, “during trial, the only references to the other charges were those made by Quiroz stating he fled because he was arrested for ‘more charges’ after he posted bail for the sexual assault and exploitation charges. The record reflects the trial court’s careful rationale. The admission of the flight evidence and instruction was a well-considered and proper exercise of the trial court’s discretion” (¶ 27).

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    Family Law

    Family Support – Validity of Divorce Judgment Provision Prohibiting Modification of Family Support Order

    Huhn v. Stuckmann, 2009 WI App 127 (filed 29 July 2009) (ordered published 26 Aug. 2009)

    A married couple was divorced in 2005. Their marital settlement agreement (MSA), which was incorporated into the divorce judgment, provided for joint legal custody of their three minor children, with the mother having primary physical placement and the father having temporary placement at reasonable times with reasonable notice. The MSA, which included a waiver of maintenance, specified an amount the father was to pay monthly as “family support.” It also included the following provision: “The parties further intend that these family support payments are non-modifiable until the final payment is made under the terms of this agreement” (¶ 3). In 2008 the father moved to modify family support based on a substantial change in circumstances, including the change in primary placement of the parties’ youngest child. The circuit court denied the motion, citing the provision in the MSA for nonmodifiable family support.

    In a decision authored by Judge Neubauer, the court of appeals reversed. It began its analysis by observing that when a circuit court approves a stipulation and incorporates it into a divorce judgment, the doctrine of equitable estoppel is applied against the party seeking relief from the provision. While the decision to apply equitable estoppel to provide relief is generally a matter of discretion, it is a fundamental precept that it cannot be applied if the provision is against public policy (see ¶ 7).

    The primary issue on appeal was whether a party may be estopped from seeking modification of family support. Both parties agreed that the issue is one of first impression. Family support, as an alternative to separate child support and maintenance orders, encompasses the support objectives of these component parts – child support and maintenance – in a single obligation. The father correctly argued that a marital settlement provision that precludes the parties from seeking to modify child support violates public policy, and estoppel will not be applied. However, the same is not true for maintenance. No prior case has addressed estoppel with respect to family support, which includes components of both maintenance and child support (see ¶ 8).

    To the extent the nonmodifiable family support order encompasses child support as well as maintenance, the court of appeals concluded that it violates well-established public policy prohibiting such agreements as to child support (see ¶ 1). “It is evident from the statutory framework and the purpose of family support that at least a portion of the family support ordered in this case – as in any case involving minor children – was child support…. Because the ‘non-modifiable’ family support provision in this case purported to limit [the father’s] ability to seek a support modification based on a substantial change of circumstances, it is against public policy and cannot provide a basis for estoppel. Based on our review of the record the trial court erred in failing to consider the child support component of the parties’ family support order. Thus, we remand for further proceedings on [the father’s] motion for modification with directions that it be considered in a manner consistent with Wis. Stat. § 767.511 and Wis. Stat. § 767.59 (permitting the revision of child or family support orders upon a finding of substantial change in circumstances)” (¶ 12). Because the public policy concerns relate only to child support and the law does not prohibit an agreement for “nonmodifiable” maintenance, the appellate court limited its decision to the child support component of the family support order (see id. n.5).

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    Motor Vehicle Law

    Hit and Run Causing Injury – Felony Status of Offense

    State v. Brandt, 2009 WI App 115 (filed 16 July 2009) (ordered published 26 Aug. 2009)

    This case involves the offense of operating a motor vehicle involved in an accident resulting in personal injury and failing to remain at the scene of the accident, contrary to Wis. Stat. sections 346.67(1) and
    346.74(5)(b). The issue before the court of appeals was whether the crime of hit and run causing injury, but not serious bodily harm, is a felony or a misdemeanor.

    The maximum penalty for this offense is nine months’ imprisonment. See Wis. Stat. § 346.74(5)(b). Offenses punishable by a maximum period of incarceration of less than one year are ordinarily classified as misdemeanors. However, section 346.74(5)(e) provides that a violation of section 346.67(1) is “a felony if the accident involved death or injury to a person.”

    In a decision authored by Judge Higginbotham, the court of appeals concluded that the crime of hit and run resulting in injury (but not serious bodily harm) is a felony. Said the court, “In order to give reasonable effect to every word of the statute, subsections (b) and (e) [of Wis. Stat. § 346.74(5)] must be interpreted as creating a non-classified felony rather than a misdemeanor” (¶ 10). This is true “despite the fact that the offense carries a maximum penalty of less than one year of incarceration” (¶ 11).

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    Municipal Law

    Incorporation – Private Laws

    State ex rel. Kuehne v. Burdette, 2009 WI App 119 (filed 7 July 2009) (ordered published 26 Aug. 2009)

    The town of Ledgeview unsuccessfully attempted to incorporate as a village under the generally applicable procedures set forth in Wis. Stat. sections 66.0203-.0211. The legislature created a special provision in the 2007 budget bill that exempted Ledgeview from the normal statutory incorporation process. See Wis. Stat. § 66.0203(11). When a referendum was scheduled on incorporation, several citizens filed this action to enjoin it. The circuit court enjoined the town’s action, finding section 66.0203(11) unconstitutional.

    The court of appeals affirmed in an opinion written by Judge Peterson. Throughout the opinion the court stressed the presumption of constitutionality of statutes. The Wisconsin Constitution, however, prohibits the legislature from enacting any “special or private laws” that “incorporate any city, town or village.” Wis. Const. Art. IV, § 31(9). The court held that Ledge-
    view’s statute “could not be a clearer example of a special or private law” (¶ 12). It also rejected Ledgeview’s contention that the constitutional prohibition was limited to legislation that directly incorporated villages, cities, and towns, as opposed to those that ostensibly affected the procedures by which incorporation occurs. “A village can only exist by means of incorporation. Wisconsin Stat. § 66.0203(11), as created by the budget bill, specifically provides for Ledgeville [sic] to incorporate into a village. Therefore, it violates the constitutional prohibition” (¶ 18). (The court also disposed of the town’s objection that the notice of claim procedures precluded this lawsuit.) Finally, adequate evidence supported the temporary and permanent injunctions. Although the residents offered no additional evidence at the hearing on the permanent injunction, there was no reason why the trial judge could not “reach back into its own record” and rely on the evidence offered at the preliminary injunction hearing (¶ 24). 

    Preemption – Construction

    American Transmission Co. v. Dane County, 2009 WI App 126 (filed 23 July 2009) (ordered published 26 Aug. 2009)

    The Wisconsin Public Service Commission (PSC) approved the construction of three transmission lines in Dane County. The county filed this declaratory judgment action seeking a determination that the projects also were subject to county ordinance requirements. The circuit court ruled against the county because the relevant statute vests sole authority in the PSC.

    The court of appeals affirmed in an opinion authored by Judge Vergeront. It held that “in Wis. Stat. § 
    196.491(3)(i) the legislature has expressly withdrawn the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. We also conclude that the local power that is withdrawn by the statute includes requiring the application for local permits of the type that are in dispute in this case” (¶ 2).

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    Real Property

    Improvements – Forced Sales

    Soma v. Zurawski, 2009 WI App 124 (filed 16 July 2009) (ordered published 26 Aug. 2009)

    The Zurawskis bought land and placed significant permanent improvements on what they believed was their property. Later they learned that the improvements were on an adjacent lot. When the Somas bought the adjacent lot, they initially told the Zurawskis “not to worry about it” but the two families later had a falling out over hunting access. The Somas filed this action for possession of the property against the Zurawskis. At a bench trial, the judge ordered a forced sale of the encroached land to the Zurawskis for $10,000, pursuant to Wis. Stat. section 843.10.

    The court of appeals affirmed in an opinion written by Judge Lundsten. Although the Zurawskis conceded that they had not met all the requirements of section 843.10, they argued that the court could force a sale under its equity powers. This issue had been “implicitly resolved” by Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N.W.2d 1 (1987), in favor of the Zurawskis (¶ 9). The court of appeals observed, however, that Perpignani did not directly address this issue or even mention Wis. Stat. section 843.10. “Nonetheless, the supreme court in Perpignani plainly affirmed a forced sale in an action for possession, relying on Wis. Stat. ch. 844 and general equitable powers. Thus, the court necessarily, albeit implicitly, decided that § 843.10 is not the sole authority under which a circuit court may order a forced sale” (¶ 10). “Any arguable inconsistency between Perpignani and § 843.10 is a matter to be addressed by the supreme court or the legislature” (¶ 11).

    The court addressed two other issues. First, the circuit court properly permitted the Zurawskis to amend their answer and counterclaim for the forced sale after the bench trial had begun. (The Somas rejected the judge’s offer to adjourn the trial. See
    ¶¶ 12–18.) Second, the trial judge properly exercised his discretion in ordering a forced sale. Evidence showed that the forced sale involved less than one acre of a seven-acre parcel. Moreover, the expense of relocating the improvements (a trailer foundation and so on) would have been more than double the value of the encroached land (see ¶¶ 19–24).

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    Personal Property – Exemptions – Judicial Review

    Xerox Corp. v. Department of Revenue, 2009 WI App 113 (filed 30 July 2009) (ordered published 26 Aug. 2009)

    The Department of Revenue (DOR) contended that multifunction copier/printer/scanner/fax devices (MFDs) that Xerox leased to consumers were nonexempt and thus subject to a personal property tax. After a hearing, the Tax Appeals Commission found that the MFDs were nonexempt. See Wis. Stat. § 70.11(39). The circuit court upheld the commission’s determination.

    The court of appeals affirmed in an opinion written by Judge Higginbotham. The opinion rejected two claims of procedural unfairness, one involving the DOR’s substitution against a judge and another involving the handling of a “revised proposed factual finding” by a former commissioner following the circuit court’s remand of the matter (see ¶ 12). A prime contention concerned the standard of review. Xerox argued that the court should review the tax issue de novo. Carefully assessing the tax issues in light of case law governing the appropriate standards for administrative review, the court held that the commission’s findings were entitled to “great weight deference” (¶ 49). “[T]he Commission’s determination that the MFDs are nonexempt under Wis. Stat. § 70.11(39) is entitled to great weight deference because the Commission was charged by the legislature with the duty of administering Wis. Stat. § 70.11, its interpretation will provide uniformity and consistency in the application of the statute, it employed its expertise or specialized knowledge in forming its interpretation, and its interpretation of § 70.11(39) is one of ‘long-standing’ within the meaning of the case law. For similar reasons, we conclude that the agency’s interpretation of provisions of the Wisconsin Property Assessment Manual supplementing § 70.11(39) are entitled to great weight deference” (¶ 55). Applying this standard, the court found reasonable the commission’s findings, including its decision to reject definitions proffered by Xerox’s experts (see ¶ 61).

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