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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. 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. 3, March 2009

    Criminal Law

    Stalking – Elements of Offense – Defense Offer to Stipulate to and Waive Jury on Element

    State v. Warbelton, 2009 WI 6 (filed 21 Jan. 2009)

    The defendant was charged with the crime of stalking. This offense is a Class I felony but is classified as a Class H felony if the actor has a prior conviction for a violent crime. See Wis. Stat. § 940.32(2m)(a). The defendant stipulated that he had been convicted of a prior violent crime. Over his objection, the stipulation was admitted into evidence, and the issue was submitted to the jury for determination. The jury convicted the defendant, and the court of appeals affirmed the conviction. See 2008 WI App 42. In a unanimous decision authored by Justice Bradley, the supreme court affirmed the court of appeals.

    The defendant’s first argument was that because a prior conviction for a violent crime is a penalty enhancer and is not an element of the crime of stalking, the circuit court erroneously admitted evidence of the prior conviction and erroneously submitted it to the jury for determination. The supreme court disagreed. It concluded that, based on the structure of the stalking statute, a prior conviction for a violent crime is an essential element for a conviction under section 940.32(2m)(a) (see ¶ 34). This conclusion was supported by the legislative history of stalking statutes in Wisconsin and other states (see ¶ 35).

    In the alternative the defendant argued that even if a prior conviction for a violent crime is an element of the Class H felony stalking offense, his stipulation to the existence of a prior conviction should not have been entered into evidence and the element should not have been submitted to the jury. He premised much of this argument on the decision in State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997). [Editors’ Note: In Alexander, the defendant was charged with driving with a prohibited alcohol concentration. The statute in effect at that time prohibited individuals with certain alcohol-related convictions from driving with a blood alcohol concentration of 0.08 or higher. The existence of the prior convictions was an element of the crime. The parties stipulated to the defendant’s prior convictions but the state refused to consent to a waiver of a jury on the prior convictions element. The judge informed the jury of the stipulation (which stated the number of prior convictions without reference to the nature of the offenses). An appeal from the conviction followed, and the supreme court concluded that the evidence of the defendant’s prior convictions should have been excluded and the prior conviction element not submitted to the jury because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the defendant.]

    In this case the supreme court concluded that the circuit court did not err by admitting into evidence the stipulation that the defendant had been previously convicted of a violent crime and by submitting the element to the jury for its determination. First, it decided that the Alexander decision is applicable only to prosecutions for operating while intoxicated or driving with a prohibited alcohol concentration (see ¶ 46). Second, with regard to the stipulation, the defendant offered to stipulate to the fact that he had a prior conviction. The state agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although the judgment of conviction for the prior crime was entered into evidence, it was not published to the jury. The jury was told only that the defendant had been convicted of a violent crime, and that the stipulation was conclusive proof of that conviction. This procedure was proper under relevant precedent. See State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989); see also Old Chief v. United States, 519 U.S. 172 (1997) (see ¶ 54). Lastly, the court concluded that because the state did not consent to a waiver of a jury on the prior conviction element, the circuit court did not err in submitting the element to the jury for its determination (see ¶ 60).

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    Criminal Procedure

    Search and Seizure – Police Community-caretaker Function

    State v. Kramer, 2009 WI 14 (filed 29 Jan. 2009)

    This case concerns the police community-caretaker function and the circumstances under which police search-and-seizure activities are justified by virtue of that function. In State v. Anderson, 142 Wis. 2d 162, 169, 417 N.W.2d 411 (Ct. App. 1987), the Wisconsin Court of Appeals set forth a three-step test for evaluating claims of police community-caretaker functions as follows: “[W]hen a community caretaker function is asserted as justification for the seizure of a person, the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.”

    A crucial issue in this case pertained to the second step of this test, that is, whether the officer was engaged in a bona fide community-caretaker activity. Language in Cady v. Dombrowski, 413 U.S. 433, 441 (1973), the decision from which the community-caretaker exception emanated, speaks of the community-caretaker function as being “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” The defendant in the present case argued that the “totally divorced” language in Cady means that the officer must have ruled out any possibility of criminal activity before the community-caretaker function is bona fide. The state, on the other hand, acknowledged that although the subjective intent of the officer may be relevant, it is not dispositive, constituting merely one factor among many to be considered in the totality of the circumstances.

    In a unanimous decision authored by Justice Roggensack, the supreme court concluded that the state’s view better comports with the requirements of the U.S. Constitution’s Fourth Amendment and article I, section 11 of the Wisconsin Constitution (see ¶ 25). Said the court, “When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct. In so doing, we conclude that the ‘totally divorced’ language from Cady does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns” (¶ 30) (citations omitted). “Furthermore, to interpret the ‘totally divorced’ language in Cady to mean that an officer could not engage in a community caretaker function if he or she had any law enforcement concerns would, for practical purposes, preclude police officers from engaging in any community caretaker functions at all. This result is neither sensible nor desirable” (¶ 34).

    Accordingly, the supreme court concluded that “a court may consider an officer’s subjective intent in evaluating whether the officer was acting as a bona fide community caretaker; however, if the court concludes that the officer has articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function, he has met the standard of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions” (¶ 36).

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    UIM – Covered Auto

    Lisowski v. Hastings Mut. Ins. Co., 2009 WI 11 (filed 28 Jan. 2009)

    Jonathan Lisowski was injured while riding as a passenger in a car owned by his father but driven by a friend. The car had no underinsured motorist (UIM) coverage, and so Jonathan made a claim under the policy of another of his father’s vehicles, which had UIM coverage under a business auto policy. “He claimed coverage on the grounds that, as a family member of the named insured, he was entitled to coverage for any injury caused by an underinsured motorist. Hastings Mutual denied coverage on the grounds that the UIM policy applied to covered autos only” (¶ 5). The circuit court dismissed Jonathan’s complaint on multiple grounds. The court of appeals affirmed on the same grounds, relying on Crandall v. Society Insurance, 2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174.

    The supreme court affirmed in an opinion written by Justice Crooks. There was no dispute that the vehicle involved in the accident was not a covered vehicle under the business policy. Nor was it disputed that Jonathan was an insured family member of the named insured (his father). “What the parties dispute is whether Jonathan Lisowski was entitled to coverage as an insured regardless of where he was at the time he was injured by the underinsured motorist” (¶ 10).

    The court held that the business policy provided no UIM coverage for this accident. The “key language” appeared in the policy’s declaration page and in the UIM coverage endorsement, which are discussed in some detail (see ¶ 12). The court rebuffed a “half-dozen reasons” (literally) offered by Jonathan to justify coverage (see ¶ 15). Even construing the covered auto language as a “drive-other-car exclusion,” the policy met the three conditions imposed by statute and case law (see ¶ 23). The majority opinion focused on the “covered auto” language. Thus, it made no difference that none of the policy’s exclusions applied, because they do not create coverage (see ¶ 26). This case mirrored the facts and reasoning in Crandall, with which the supreme court agreed (see ¶¶ 28-29).  

    Justice Bradley, joined by Chief Justice Abrahamson, dissented. “The problem with the majority opinion is twofold: (1) by ignoring this basic tenet of UIM coverage, it collapses the distinction between Class I and Class II insureds, requiring all insureds to be occupants of covered autos; and (2) by concluding that the language of the policy is clear and unambiguous, it contradicts a parade of cases from other courts and avoids the canon of construction that ambiguity is decided in favor of the insured” (¶ 36).

    Occurrence – Successive Policies – All Sums

    Plastics Eng’g Co. v. Liberty Mut. Ins. Co., 2009 WI 13 (filed 29 Jan. 2009)

    This case presents questions of law certified from the Seventh Circuit regarding insurance coverage in asbestos litigation. Plastics Engineering Co. (Plenco) manufactured and sold products that incorporated asbestos from 1950 to 1983. Because Plenco is a named defendant in several asbestos-related lawsuits, it brought this action against Liberty Mutual to determine coverage. Over several decades Liberty Mutual issued to Plenco a variety of policies, which the court summarized (see ¶¶ 8-22). A federal magistrate determined that each person’s injury resulting from exposure to the asbestos product constituted a separate occurrence under the policies, the policies’ noncumulation provisions limited an individual claimant’s recovery, and Liberty Mutual was obligated to pay “all sums arising from an occurrence and is not entitled to a pro rata contribution from Plenco” (¶ 25).

    The insurer appealed to the Seventh Circuit, which certified several issues of Wisconsin law to the supreme court. In an opinion written by Justice Ziegler, the court answered the questions based on the policy language and the facts of the case as follows:
    “[E]ach claimant’s repeated exposure is one occurrence; Wis. Stat. § 631.43(1) (1975-current) does not apply to successive insurance policies; and once this policy is triggered, Liberty Mutual must fully defend the lawsuit in its entirety and pay for all sums up to the policy limits that Plastics Engineering Company (Plenco) is obligated to pay because of the injury. The policy language here does not support a pro rata allocation of damages” (¶ 4).

    As to the first issue, “Each individual’s repeated exposure constitutes an occurrence” (¶ 29). The conclusion followed from a “reasonable, unstrained approach” to the policy language (¶ 31). The court rejected the insurer’s contention that the occurrence constituted the manufacture and sale of the product without warning based on the policy’s limits of liability provision (see ¶ 34). Moreover, the court concluded that “each individual’s repeated and continuous exposure constitutes an occurrence” (¶ 35), again based on the policy’s language (see ¶ 40). Second, the court agreed with Liberty Mutual’s contention that Wis. Stat. section 631.43(1) does not bar the noncumulation provisions of “successive insurance policies” (see ¶ 45). In essence, the statute applies to other-insurance provisions in policies that indemnify for the same loss. Here the policies were successive, not concurrent.

    Third, the court addressed Liberty Mutual’s duty to defend and indemnify for claimants’ injuries that occurred outside a policy period (see ¶ 51). Courts across the country have split between an all-sums approach and a pro rata approach, under which “the insurer is responsible for only a pro rata share of the damages based upon the years that it provided coverage relative to the years when no coverage was purchased” (¶ 52). Wisconsin employs a “continuous trigger theory” to determine which policies are implicated (see ¶ 53). “In our analysis, we are again driven by the policy language. Liberty Mutual’s policy contains no language that limits its obligation to a pro rata share. In fact, the policy obligates Liberty Mutual to pay for injury that occurs ‘partly before and partly within the policy period’” (¶ 55). The court rejected the pro rata approach both to indemnification and the duty to defend (see ¶ 60).

    Chief Justice Abrahamson concurred but wrote separately to emphasize the peculiar federal role of the state supreme court in a certification case such as this. “The majority, in my opinion, does what Liberty Mutual feared: Certification has allowed Plenco to get a decision on the merits of the case from this court instead of from the federal court in which Plenco brought its suit. Liberty Mutual objected to certification, urging the federal court to bind Plenco to its chosen federal forum. By the majority’s decision, Plenco has succeeded, in effect, in ‘removing’ its federal case to the state court for a decision. This is not the purpose of a federal court’s certifying questions of law to this court. If the certified questions cannot be answered by setting forth Wisconsin law, this court should return the certified questions unanswered” (¶ 67).

    Justice Gableman concurred in the first two issues but dissented to the majority’s all-sums approach. He said that Liberty Mutual’s policies should be held to apply only to injuries that occurred while its policies provided coverage.

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    Immunity – Cheerleading

    Noffke v. Bakke, 2009 WI 10 (filed 27 Jan. 2009)

    This tort action arose when Noffke was seriously injured during a high school cheerleading practice. She sued the school district, her coach, and a fellow cheerleader, Bakke, who allegedly failed to spot her properly during the practice. The circuit court granted summary judgment in favor of all the defendants. The court of appeals affirmed in part and reversed in part, ruling that Bakke was not immune from liability. See 2008 WI App 38, 308 Wis. 2d 410, 748 N.W.2d 195.

    The supreme court affirmed in part and reversed in part in an opinion, written by Justice Ziegler, that favored the defendants. The case presented three issues. First, the court held that Bakke was immune from liability under the plain language of Wis. Stat. section 895.525(4m)(a), which immunizes participants in a recreational activity that includes physical contact in a sport (see ¶ 13). The majority extensively discussed why cheerleading falls within the scope of that statute, for example, the nature of the “physical contact” contemplated by the statute (see ¶ 23) and why the statute is not confined to “competitive” team sports (see ¶ 30).

    Second, the circuit court properly found that as a matter of law Bakke was not reckless in causing Noffke’s injuries. At best the facts showed that Bakke was negligent by going to the front rather than the back of the cheerleading formation, where he may have been better able to break Noffke’s fall.

    Third, the school district was properly granted immunity. The cheerleading squad’s coach neither violated a ministerial duty imposed by law nor confronted a known and compelling danger. As to the former, the coach had discretion in applying the team’s “spirit rules” (see ¶ 45). As to the latter, the summary judgment record did not demonstrate a known and compelling danger. Noffke and Bakke, a trained spotter, thought they could safely perform the stunt (see ¶ 56). At most the facts showed negligence (see ¶57).

    Chief Justice Abrahamson, joined by Justice Bradley, concurred in the mandate. The concurrence criticized the majority’s over-reliance on dictionary definitions with respect to the first issue in resolving the meaning of terms like sport and team. “[T]he statute’s phrase ‘a sport involving amateur teams’ must be interpreted in light of the legislature’s express purpose of ‘decreas[ing] uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public.’ The application of Wis. Stat. § 895.525(4m) would be fraught with uncertainty if competition were taken to be the essence of a ‘sport involving amateur teams’ under the statute…. The statute’s purpose of decreasing uncertainty would not be furthered if the statutory phrase ‘sport involving amateur teams’ imposed a requirement of competition on cheerleading limiting the scope of Wis. Stat. § 895.525(4m)” (¶¶ 65-66).

    Recreational Immunity – Nonprofit Entities

    De La Trinidad v. Capitol Indem. Corp., 2009 WI 8 (filed 23 Jan. 2009)

    Two children drowned in a pond on the grounds of Halter Wildlife Inc. The plaintiffs sued Halter, a lifeguard, and other alleged tortfeasors but the circuit court dismissed their claims under the recreational immunity statute. The court of appeals affirmed.

    The supreme court unanimously affirmed in an opinion authored by Justice Crooks. “The sole question before us is whether Halter is ‘an organization or association not organized or conducted for pecuniary profit’ under Wis. Stat. § 895.52(1)(c) and as such entitled to immunity from liability for negligence, as well as for safe place violations, for any deaths occurring during recreational activity on Halter’s land” (¶ 2). The court concluded that “Halter’s articles of incorporation, tax returns, and financial statements make clear that it was organized and is conducted as a nonprofit organization, a fact recognized by both Wisconsin and the federal government” (¶ 3).

    The plaintiffs argued that Halter had been organized for pecuniary profit under Wis. Stat. chapter 180. The court examined the incorporation law and practice in the 1950s, when Halter was organized. The record clearly showed that the secretary of state accepted Halter’s incorporation as a nonprofit under chapter 180 in the late 1950s (see ¶ 17). It did not matter that Halter could have conceivably converted to for-profit status at some later time (see ¶ 21). Its articles of incorporation clearly described its nonprofit status. The plaintiffs also argued that Halter was nonetheless conducted as a for-profit enterprise, an argument that turned “on a sort of ‘penny saved is a penny earned’ definition of profit” (¶ 28). Finding the arguments “unavailing,” the court observed that “[t]o adopt them would, with the stroke of a pen, convert innumerable nonprofits in Wisconsin to for-profit enterprises by virtue of the fact that their bills are paid and they have money in the bank. Such a rule would operate to strip any solvent § 501(c)(7) organization of its nonprofit status” (¶ 32). The record firmly established that Halter was indeed conducted as a nonprofit entity (see ¶ 35).  

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    Worker’s Compensation

    Permanent Disfigurement – Requirements for Disfigurement Awards – Role of Statutory History in Discerning Statute’s Meaning

    County of Dane v. LIRC, 2009 WI 9 (filed 23 Jan. 2009)

    Gloria Graham slipped and fell while employed as a food service worker by Dane County. She sustained a significant knee injury and, despite arthroscopic surgery and other medical procedures, she walks with a severely pronounced, foot-dragging limp. She is currently unemployed and has been actively seeking employment but without success.

    Dane County agreed to pay Graham for a permanent partial disability for loss of function at the knee. Graham also sought to recover additional compensation, claiming under Wis. Stat. section 102.56(1) that she has sustained a permanent disfigurement. Dane County argued that Graham was not eligible for the additional compensation, because an earlier Labor and Industry Review Commission (LIRC) decision had limited compensation for permanent disfigurement to persons with injuries that resulted in visible amputations, scarring, or burns. An administrative law judge (ALJ) concluded that Graham’s injury was compensable under section 102.56(1), and LIRC agreed. The circuit court affirmed LIRC and, in a published decision, the court of appeals affirmed the circuit court. See 2007 WI App 262.

    In a majority decision authored by Justice Roggensack, the supreme court affirmed the court of appeals. At the outset of the decision the court concluded that LIRC’s interpretation of section 102.56(1) was entitled to no deference because of LIRC’s “inconsistent past interpretations that provide no real guidance” (¶ 2). Next, the court concluded that the plain meaning of the statutory term disfigurement encompasses an impairment that significantly affects the appearance of a person. “Though Dane County argues that disfigurement awards historically have been limited to visible burns, scars and amputations, there is nothing inherent in the plain meaning of disfigurement that supports such a restrictive interpretation. Instead, Graham’s severe limp and foot drag, in combination with the ALJ findings that ‘her legs looked imperfect and asymmetrical,’ constitute a disfigurement under the plain meaning of the term” (¶ 25).

    The court also held, however, that the statute does not compensate employees for all disfigurements. There are additional statutory requirements that must be satisfied for a statutory disfigurement to exist. Under the terms of the law, the court held, the evidence must show that Graham has 1) a permanent disfigurement 2) that will occasion potential wage loss, 3) that occurs on an area of the body that is exposed during the normal course of employment, and 4) that is apparent to current or potential future employers in occupations for which she is suited. The supreme court concluded that all four requirements have been met in this case. The injury is permanent; several potential employers have refused to hire Graham because of her disfigurement (an undisputed fact); the disfigurement occurs on an area of the body exposed during the normal course of employment; and Graham’s work history involves various occupations that each involve walking, such that her foot-dragging limp will be apparent (one potential employer asked Graham if she had multiple sclerosis or had suffered a stroke) (see ¶¶ 38-41).

    The court discussed the role of statutory history (that is, earlier versions of a statute) in discerning the meaning of a statute. Said the court, “A review of statutory history is part of a plain meaning analysis because it is part of the context in which we interpret statutory terms. The materials reviewed when considering statutory history consist of the previously enacted and repealed provisions of a statute. By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute” (¶ 27) (internal quotes and citations omitted).

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

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