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    Wisconsin Lawyer
    September 08, 2010

    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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 9, September 2010

    Appellate Procedure

    Appellate Jurisdiction – Jurisdiction of Appellate Courts to Review Circuit Court Orders Compelling Arbitration

    Estate of Parker v. Beverly Enters. Inc., 2010 WI 71 (filed 8 July 2010)

    In 2004, Robert Parker was admitted to the Golden Age Nursing Home in Tomah. His wife, Elizabeth, as agent under his durable power of attorney, signed various documents for the purposes of his admission. One of these documents was a “Resident and Facility Arbitration Agreement.” Robert died six months after entering the nursing home. Elizabeth and Robert’s estate thereafter filed a lawsuit alleging various breach of contract and tort claims against Beverly Enterprises (d/b/a Golden Age Nursing Home) (hereinafter Beverly). In its answer, Beverly raised the arbitration agreement as an affirmative defense. It then filed a notice of motion and motion to stay the judicial proceedings and compel arbitration pursuant to the arbitration agreement. The circuit court granted Beverly’s motion.

    The estate then proceeded to the court of appeals. It filed a petition for leave to appeal the order compelling arbitration (an interlocutory appellate mechanism suggesting that the appeal was not as a matter of right); it also filed a notice of appeal (the kind of notice that indicates an appeal of a final judgment or a final order that may be appealed as a matter of right). The court of appeals dismissed the latter and as a matter of discretion denied the former.

    The estate then filed a petition for review in the supreme court. Beverly moved to dismiss the petition. Beverly’s primary argument was that under Teamsters Union Local No. 695 v. County of Waukesha, 57 Wis. 2d 62, 203 N.W.2d 707 (1973) (holding that an order compelling arbitration is not appealable), Worthington v. Farmers Insurance Exchange, 64 Wis. 2d 108, 218 N.W.2d 373 (1974), and Wis. Stat. section 788.15, the supreme court lacked jurisdiction to consider the petition for review because orders compelling arbitration are not appealable. It further claimed that when the court of appeals denies permission to file an appeal, the supreme court is not permitted to review the court of appeals’ discretionary decision.

    In a majority decision authored by Justice Bradley, the supreme court concluded that “Teamsters, Worthington, and Wis. Stat. § 788.15 do not prevent this court from considering the [estate’s] petition for review” (¶ 41). Said the court, “in the years since Teamsters was decided, the legislature has made significant and substantive changes to the law governing appellate jurisdiction. These changes were introduced by constitutional amendment and by statute when the court system was reorganized in 1977. After these changes, the Teamsters court’s analysis does not accurately reflect Wisconsin’s construct of appellate jurisdiction” (¶ 30).

    As for Beverly’s claim that the supreme court is not permitted to review a decision by the court of appeals denying a petition for leave to appeal, the supreme court responded that “although we have repeatedly stated that we will not review the court of appeals’ decision to deny leave to appeal, our refusal is not based on lack of jurisdiction. Rather, it is based on practice, rooted in concerns for judicial administration and respect for the court of appeals’ exercise of discretion” (¶ 4).

    Lastly, the court determined that it did not need to decide whether appeal of a circuit court order compelling arbitration is a permissive appeal or an appeal as of right. “Under either circumstance, Article VII, § 3 of the Wisconsin Constitution provides that [the supreme] court has jurisdiction to review an order issued by the court of appeals” (¶ 48). Accordingly, the supreme court denied Beverly’s motion to dismiss the petition for review.

    Justice Prosser filed a concurring opinion that was joined in by Justice Gableman. Justice Ziegler filed a separate concurrence.

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    Civil Procedure

    Default Judgments – Reopening

    Miller v. Hanover Ins. Co., 2010 WI 75 (filed 13 July 2010)

    The salient facts in this case are “lengthy and complicated,” yet the end result is that the circuit court entered a $2 million default judgment against Zurich American when it failed to respond to an amended complaint and summons alleging that it was liable for underinsured motorist (UIM) coverage for an insured who was in a serious auto accident. Zurich had appeared and vigorously represented its interests with respect to a subrogated worker’s compensation claim, but a company clerk overlooked the amended complaint alleging the UIM claim. When it caught the error, Zurich promptly answered by denying such coverage, but the circuit court entered the default judgment and rejected Zurich’s request for an extension of time or relief from the default because of excusable neglect. The court of appeals affirmed in an unpublished decision.

    The supreme court reversed in a majority opinion written by Justice Roggensack that construes Wis. Stat. section 806.07(1)(h) in light of case law. The supreme court held that when a court considers whether it should grant relief from a judgment, it must consider the five “interest-of-justice” factors set forth in the statute and cases. “A finding of excusable neglect is not required under the extraordinary circumstances test to obtain relief from a default judgment under para. (1)(h)” (¶ 41). Here the circuit court failed to adequately explain its reasoning. The supreme court independently reviewed the record and held that the circuit court’s decision was unreasonable in light of the five interest-of-justice factors, including whether the claimant’s “choice” was deliberate and well-informed and whether it received effective assistance of counsel. “Because of the five interest of justice factors weighing in favor of Zurich; the numerous errors, procedural and otherwise, that were generated in part by plaintiff’s counsel and the circuit court personnel who were responsible for listing Ratzel as Zurich’s attorney of record into the CCAP system; and our policy disfavoring default judgments, we conclude that Zurich has met its burden of proving that extraordinary circumstances exist justifying vacating the default judgment” (¶ 59).

    Justice Bradley, joined by Chief Justice Abrahamson, concurred but objected to the majority’s conversion of the “holistic inquiry” contemplated by prior case law into a “formulaic five-factor test” (¶ 72) that fails to adequately distinguish ordinary from extraordinary cases of default. The facts in this case were extraordinary. Moreover, the trial judge failed to balance the competing interests of finality and fairness, thus entitling Zurich to a reversal and remand (see ¶ 65).

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    Commercial Law

    Mortgages – Foreclosures – Guarantees

    Bank Mut. v. S.J. Boyer Constr. Inc., 2010 WI 74 (filed 9 July 2010)

    Bank Mutual loaned about $1.4 million to Boyer Construction. The loans were represented by a series of notes and were secured by multiple mortgages on five properties owned by the company. The Boyers individually entered into a guaranty with the bank. When Boyer Construction defaulted on the notes, the bank brought a foreclosure action for the properties and a separate claim against the Boyers for the amounts due. The bank waived any deficiency against the company to expedite the foreclosure process and purchased the assets at the sheriff’s sale. When it moved to confirm the sale, the Boyers objected on the ground that the sale violated the statute because the bank elected the shortened redemption period but did not expressly waive any deficiency judgment against the Boyers themselves. The circuit court overruled the objection. The court of appeals reversed, holding that “Bank Mutual’s decision to expedite the redemption period precluded it from seeking a deficiency judgment against the Boyers” (¶ 16). See 2009 WI App 14.

    The supreme court reversed in a majority opinion written by Justice Prosser that construes Wis. Stat. sections 846.04, .101, and .103(2), all of which use the same phrase: “every party who is personally liable for the debt secured by the mortgage.” The court inferred “that the legislature intended the class of persons against whom deficiency judgments must be waived under Wis. Stat. §§ 846.101 and 846.103(2) to be the same class of persons against whom a deficiency judgment may be obtained under Wis. Stat. § 846.04” (¶ 31). In defining that phrase, the majority opinion conceded that the phrase “does not clearly exclude guarantors” but concluded that “the legislature intended to use the phrase’s specific legal meaning and did not intend it to encompass guarantors who guarantee a debt through a contract separate from the note creating the debt” (¶ 39). In particular, “the phrase ‘personally liable for the debt’ has traditionally been used in foreclosure law to distinguish the borrower’s liability on the debt, which is a personal obligation, from the mortgagor’s liability, which is an obligation limited to the property used to secure the debt. Because Wis. Stat. §§ 846.04 and 846.103 use this term of art familiar to the law of mortgages, we decline to expand the statute’s scope beyond the traditional legal meaning of the phrase” (¶ 52).

    The majority explained that its holding comported with the purpose of the statutes. “If Wis. Stat. § 846.103(2) requires a waiver of deficiency against a guarantor, mortgagees would be deprived of some of the security they relied upon for their loan – not the security provided by the mortgage, but the security provided by the guaranty. Such an interpretation would also result in a windfall to the guarantor, who would be relieved of liability under the guaranty without paying the obligation set out in the guaranty. We conclude that the legislature did not intend such a result when it enacted Wis. Stat. § 846.103(2)” (¶ 76).

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. The dissenting justices criticized the majority for giving short shrift to the “law governing guarantors,” which in turn led to the “wrong result” in this case (¶ 85). They contended that the guarantors fell within the class of persons “personally liable for the debt secured by the mortgage,” as set forth in section 846.103(2). Moreover, “if the mortgagee proceeds under § 846.103(2), the guarantor for payment is released from liability as a party personally liable for the debt secured by the mortgage” (¶ 130).

    Justice Ziegler did not participate in this case.

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    Constitutional Law

    State Constitution Amendments – Adoption – Standing

    McConkey v. Van Hollen, 2010 WI 57 (filed 30 June 2010)

    This appeal raised issues about the constitutionality of the “marriage amendment” to the Wisconsin Constitution. The circuit court ruled that the plaintiff had standing to challenge the amendment and that the amendment was properly adopted.

    On certification from the court of appeals, the supreme court affirmed the circuit court in a unanimous decision authored by Justice Gableman. First, although plainly perplexed by the issue of McConkey’s standing to attack the amendment, the court concluded that “the unique circumstances of this case render the merits of McConkey’s claim fit for adjudication” (¶ 17).

    The central issue concerned whether the marriage amendment actually consisted of two provisions and thus violated the constitution’s requirement that each amendment be separately approved. Whether the amendment embodied “good public policy or bad public policy” was not before the court (¶ 23). The key was whether all the amendment’s language related to the same subject matter based on its text and the historical context (see ¶ 50).

    “The marriage amendment contains two propositions: (1) ‘Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state’; and (2) ‘A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.’ The text of this amendment and historical context in which it was adopted make its general subject and purpose plain” (¶ 51). “The sponsors of the amendment were quite clear that state supreme court decisions overturning the marriage laws of other states were the primary reason for the amendment. In short, the sponsors of the amendment wanted to protect the current definition and legal status of marriage, and to ensure that the requirements in the first sentence could not be rendered illusory by later legislative or court action recognizing or creating identical or substantially similar legal statuses. The purpose of the marriage amendment, then, was to preserve the legal status of marriage in Wisconsin as between only one man and one woman. Both propositions in the amendment tend to effect or carry out this general purpose” (¶ 55).

    Takings – Patient Compensation Fund

    Wisconsin Med. Soc’y Inc. v. Morgan, 2010 WI 94 (filed 20 July 2010)

    While sculpting the 2007-09 state budget, the legislature transferred $200 million from the fund created to compensate medical negligence victims (the Fund) to the state’s Medical Assistance Trust Fund. The Wisconsin Medical Society brought this action claiming that the appropriation was an unconstitutional taking of private property without just compensation. The circuit court dismissed the suit. The court of appeals certified the case to the supreme court.

    The supreme court reversed the circuit court in a majority opinion authored by Justice Prosser. Based on its reading of case law, the court held “that the health care providers have a constitutionally protected property interest in the Fund. The health care providers’ property interest is the equitable title to the Fund that they hold as named beneficiaries of the Fund. We reach this conclusion for two reasons. First, the Fund is unambiguously a formal trust under Wisconsin law in both name and form. Second, the beneficiaries of a trust have equitable title in a trust” (¶ 61). This equitable title in turn created three rights. “First, the health care providers have a property interest in the security and integrity of the Fund. Second, the health care providers have a right to realize investment earnings in the form of lowered assessments. Third, both health care providers and proper claimants have a right to the assurance that excess judgments will be paid by the Fund, so that additional litigation can be avoided and justice will be done” (¶ 80).

    The majority recognized, however, that the Fund is not “immutable in its present form” (¶ 101). Said the court, “[w]e are sensitive to the changing needs of state government and the basic principle that one legislature cannot bind another. But that cannot mean that anything goes, that recognized property interests evaporate when the winds shift. The legislature created a ‘trust’ for health care providers and their patients and families, and it pronounced that trust ‘irrevocable.’ We take the legislature at its word” (¶ 101).

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. They said that although the legislature may have done something that seems “unfair,” “the remedy for disliking the legislature’s judgment is not found in this court unless the challenger has met the high standards established for proving a statute unconstitutional. Because the majority’s analysis of the property interests at stake leaves great room for doubt and because the majority must strain principles of trust law to reach its result, … the Medical Society has not met the heavy burden of proving the unconstitutionality of the transfer of assets from the Fund beyond a reasonable doubt” (¶ 110).

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    Precedent – Overruled Cases – Insurance

    Blum v. 1st Auto & Casualty Ins. Co., 2010 WI 78 (filed 14 July 2010)

    The plaintiff was gravely injured by a friend’s operation of a pickup truck. Although the driver was insured, the truck was not. The plaintiff settled with the driver and his insurer and then brought this action seeking uninsured motorist (UM) coverage from 1st Auto under his own policy. The circuit court granted summary judgment in favor of 1st Auto. The court of appeals affirmed, relying in part on Hemmerly v. American Family, 127 Wis. 2d 304 (Ct. App. 1985), a case overruled in Hull v. State Farm, 222 Wis. 2d 627 (1998). See 2009 WI App 19.

    The supreme court affirmed in an opinion written by Justice Prosser. The first two issues addressed the UM insurance coverage. First, the court held that the UM policy was not ambiguous and did not provide coverage. “There are at least three reasons why the policy unambiguously does not provide coverage under the facts of this case: (1) the alleged tortfeasor is insured and no negligence is alleged on the part of the uninsured vehicle owner; (2) an insurance policy applied to the vehicle at the time of the accident; and (3) the tortfeasor’s insurance equals the insured’s UM coverage” (¶ 23). Second, the policy comported with the statutory requirements for UM coverage under Wis. Stat. section 632.32(4) as construed in Hull.

    The third issue addressed “whether a court of appeals decision retains any precedential value when it is overruled by this court. We hold that when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise” (¶ 42). “This conclusion is supported by the constitutionally designated purposes of this court and the court of appeals, as well as practical considerations” (¶ 46). “First, retaining precedential value in overruled court of appeals decisions would not serve the purposes of the supreme court or the court of appeals” (¶ 47). “[W]hen this court accepts review of a case, it does so to clarify and develop the law and provide guidance for lower courts. This purpose would not be served by requiring this court to address specifically every holding in a court of appeals decision to protect the coherence of this court’s holding. Such a rule would expand this court’s ‘error-correcting’ role by requiring the supreme court to repudiate each holding in a court of appeals decision that may be incorrect. If questions remained about the precedential value of a court of appeals decision once the supreme court had overruled that decision, the law-developing value of this court’s decision would be jeopardized” (¶ 49). “The court of appeals’ ability to function as an error-correcting court is strengthened by our holding as it clarifies the precedential status of overruled cases. The court of appeals is in a better position to apply established law when there is a bright-line rule nullifying the precedential value of an overruled court of appeals decision” (¶ 51).

    Justice Bradley, joined by Chief Justice Abrahamson, concurred in the majority’s statements about the null value of overruled court of appeals decisions but dissented from its holding regarding UM coverage (see ¶ 65).

    Justice Roggensack, joined by Justices Ziegler and Gableman, concurred in the majority’s decision on the UM coverage but dissented from its discussion on the precedential value of overruled opinions, positing that it was unnecessary to the resolution of this case’s merits (see ¶ 81).

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    Criminal Procedure

    Arrest – Searches – Autos – Gant and Good Faith

    State v. Dearborn, 2010 WI 84 (filed 15 July 2010)

    In this highly important case, the supreme court adopted the new rules for automobile searches following arrest that were set forth last year in Arizona v. Gant, 129 S. Ct. 1710 (2009) and also held that the good-faith exception applied to pre-Gant searches. The defendant’s bizarre behavior resulted in his arrest for driving with a revoked license and the search of his truck, where drug-related evidence was discovered. The circuit court denied his motion to suppress, and a jury convicted him of resisting arrest and for possessing marijuana. In a published opinion, the court of appeals affirmed. See 2009 WI App 131. 

    The supreme court affirmed in a majority opinion written by Justice Gableman. First, the supreme court expressly adopted the Gant rule and overruled case law relying on pre-Gant search law. Under Gant, the Fourth Amendment “authorizes a vehicular search only if the person arrested is unsecured and within reaching distance of the passenger compartment at the time of the search. However, a search incident to a lawful arrest may be justified when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’” (¶ 27). In this case, the search of the defendant’s truck violated the Gant rule. “This is so because Dearborn was secured and therefore unable to reach the passenger compartment of his vehicle at the time of the search. Moreover, Dearborn’s search cannot be upheld under Gant on the grounds that relevant evidence might be found in the truck, because the warden could not have reasonably expected to find evidence in the vehicle regarding Dearborn’s revoked license” (¶ 29).

    Second, the court also held that the good-faith exception to the exclusionary rule spared the evidence from suppression because police officers justifiably relied on pre-Gant law when conducting the search. “[T]he exclusionary rule should be applied as a remedy to deter police misconduct and most appropriately when the deterrent benefits outweigh the substantial costs to the truth-seeking and law enforcement objectives of the criminal justice system” (¶ 38). “In sum,” the majority was “persuaded that the benefits of applying the exclusionary rule in this case are exceedingly low. The deterrent effect on officer misconduct, which is the most important factor in our analysis, would be nonexistent. For this reason, we conclude that the good faith exception to the exclusionary rule should preclude the suppression of the illegally obtained evidence in this case because the officers reasonably relied on clear and settled Wisconsin Supreme Court precedent in carrying out the search” (¶ 49).

    Chief Justice Abrahamson, joined by Justice Bradley, dissented from the majority’s application of the good-faith exception while agreeing with its construction of Gant. “The majority disobeys controlling precedent, leaves an acknowledged constitutional violation unremedied, allows the law to provide different results for similarly situated defendants, and establishes a serious imbalance in how future Fourth Amendment issues will be brought to the courts and resolved. Given the slight weight afforded these consequences by the majority, it is no wonder the majority fails to weigh the costs to judicial integrity and the integrity of judicial process, values which our court has protected through the exclusionary rule for over 80 years” (¶ 54).

    Arrest – Searches – Autos – Gant and Good Faith

    State v. Littlejohn, 2010 WI 85 (filed 15 July 2010)

    This case presented issues identical to those raised in State v. Dearborn, 2010 WI 84 (summarized immediately above), namely, the adoption of the Gant rule and the application of the good-faith exception. The brief majority opinion written by Justice Gableman adopted the Dearborn rationale. Chief Justice Abrahamson, joined by Justice Bradley, dissented for the same reasons set forth in Dearborn.

    Right to Counsel – No Right of Indigent Defendant to Reject Appointed Counsel in Favor of Substitute Counsel

    State v. Jones, 2010 WI 72 (filed 8 July 2010)

    The defendant was charged with multiple crimes and, because he was indigent, the State Public Defender (SPD) appointed counsel to represent him. The circuit court denied his request for the appointment of substitute counsel, and a jury convicted him on seven of the eight counts with which he was charged. Among his claims on appeal was that indigent defendants with appointed counsel have a right, under the Wisconsin and U.S. constitutions, to reject appointed counsel in favor of substitute counsel (see ¶ 4). He also contended that “given the Wisconsin SPD’s policy [rooted in Wisconsin Administrative Code section PD 2.04] of appointing substitute counsel upon the first request to do so, a court cannot deny an indigent defendant’s request to reject counsel and substitute counsel unless grounds exist, such as delay of trial or conflict of interest, that would justify denying substitution for a similarly situated defendant represented by retained counsel” (¶ 35). Put another way, the defendant claimed that the existence of the Administrative Code provision cited above “puts defendants with retained and with appointed counsel on the same footing” (id.).

    In a majority opinion authored by Justice Crooks, the supreme court rejected the defendant’s arguments. The majority noted that “nothing bars a defendant from requesting substitution of counsel, nothing bars the SPD from choosing to make substitute counsel available, and nothing bars a court from granting such a request. The question is whether a court is required by the Sixth Amendment to the United States Constitution or by Article I, Section 7 of the Wisconsin Constitution to do so solely because a defendant requests it. This court and the United States Supreme Court have held that it is not” (¶ 45). Said the court, “the cases in which courts have reversed convictions based on erroneous denials of motions for substitution of counsel involve defendants with retained counsel; those cases without exception explicitly state that the right to choice of counsel is by necessity limited to defendants with retained counsel” (¶ 38).

    The court also concluded that the circuit court did not erroneously exercise discretion when, on the facts of the attorney-client relationship in this case, it declined the defendant’s request for substitution of counsel.

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

    Right to Counsel – Waiver of Counsel – Colloquy with Defendant

    State v. Imani, 2010 WI 66 (filed 7 July 2010)

    Imani was charged with armed robbery and possession of a firearm by a felon (both as a repeater). After a hearing at which the circuit court denied Imani’s motion to suppress identification evidence and at which Imani was represented by his third appointed attorney, he informed the court that he wanted to represent himself at trial. The circuit court denied the request (less than one month before the trial date) but indicated it would be willing to hear the motion again. Imani did not move for self-representation again and he proceeded to trial with his attorney. The jury convicted him on both counts.

    Imani appealed, arguing among other things that the circuit court wrongfully deprived him of his constitutional right to self-representation because he established a valid waiver of counsel and was competent to represent himself. In a published decision, the court of appeals reversed; it concluded that Imani was entitled to a new trial because the circuit court failed to conduct the waiver-of-counsel colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). See 2009 WI App 98. In a majority decision authored by Justice Ziegler, the supreme court reversed the decision of the court of appeals.

    To establish a valid waiver of counsel, Klessig requires the circuit court to conduct a colloquy with the defendant designed to ensure that the defendant 1) made a deliberate choice to proceed without counsel, 2) was aware of the difficulties and disadvantages of self-representation, 3) was aware of the seriousness of the charge or charges, and 4) was aware of the general range of penalties that could have been imposed. “[A] reviewing court may conclude that a defendant knowingly, intelligently, and voluntarily waived the right to counsel only if the circuit court engaged in, and found that the defendant met, the four lines of inquiry prescribed in Klessig” (¶ 23).

    In the present case the majority concluded that the defendant did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that he 1) did not make a deliberate choice to proceed without counsel and 2) was unaware of the difficulties and disadvantages of self-representation. If any one of the four conditions prescribed in Klessig is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel (see ¶ 3). The majority was satisfied that Imani made a hasty request to represent himself on the heels of an unsuccessful motion and, once his initial request to represent himself was denied, he never again expressed a sincere desire to proceed without counsel (until he was convicted) (see ¶ 30). Said the court, “It is clear that Imani did not make a deliberate choice to represent himself. Instead, he impulsively moved for self-representation as a result of his aggravation towards counsel and the fact that he did not prevail on the motion to suppress” (¶ 28). Further, the majority could not conclude on the basis of the record that the defendant appreciated the difficulties and disadvantages of self-representation (see ¶ 32).

    To waive counsel and act pro se, the defendant must be competent to proceed pro se. There is a higher standard for determining whether a defendant is competent to proceed pro se than for determining whether a defendant is competent to stand trial (see ¶ 36). “In determining whether a defendant is competent to proceed pro se, the circuit court may consider the defendant’s education, literacy, language fluency, and any physical or psychological disability which may significantly affect his ability to present a defense. A defendant of average ability and intelligence may still be adjudged competent for self-representation, and accordingly, a defendant’s ‘timely and proper request’ should be denied only where the circuit court can identify a specific problem or disability that may prevent the defendant from providing a meaningful defense” (¶ 37).

    In this case the majority concluded that the determination that Imani was not competent to proceed pro se was supported by the facts in the record. “The circuit court inquired into Imani’s level of education, his ability to read and write, and his experience with the legal system. Imani possessed only a tenth grade education and asserted, without more, that he read at a college level. As the circuit court correctly observed, Imani’s experience with the criminal court system was ‘observational,’ as his [previous] court appearances always included the assistance of counsel. Considering all those factors, the circuit court determined that Imani did not possess the minimal competence necessary to conduct his own defense. We cannot conclude that the circuit court’s determination is ‘totally unsupported’ by the record. Moreover … it was not error for the circuit court to take into consideration the trial schedule when determining whether Imani was competent to proceed pro se. In Pickens [v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980)], which we regard as the controlling authority on competence, this court recognized that a ‘timely and proper request’ to proceed pro se should be denied only where the circuit court can identify a specific problem or disability that may prevent the defendant from providing a meaningful defense. Accordingly, the circuit court was justified in taking into consideration the timing of Imani’s motion to represent himself and the fact that it was first presented to the court less than one month before a two-defendant jury trial that required ‘substantial and extensive preparation’” (¶ 39).

    Justice Crooks filed an opinion concurring in part and dissenting in part. He criticized the majority for failing to address whether a new trial or a retrospective evidentiary hearing is the remedy when a circuit court fails to engage in the colloquy mandated by Klessig (see ¶ 41). Further, he disagreed “with the majority’s conclusions that the record contains evidence supporting a determination (1) that Imani’s waiver was not deliberate, (2) that he was not aware of the difficulties and disadvantages of self-representation, or (3) that Imani was incompetent to represent himself” (¶ 68). The Chief Justice and Justice Bradley joined this concurrence/dissent.

    Searches – Exigent Circumstances

    State v. Robinson, 2010 WI 80 (filed 15 July 2010)

    A person walked into a police station and reported that Robinson was selling marijuana from his apartment. Acting without a search warrant, police officers went to Robinson’s apartment to talk to him about the allegation. When he declined to open the door (“No thank you!”) and police heard sounds suggesting he might be destroying evidence, they broke down the door and found drug-related evidence. The circuit court denied Robinson’s motion to suppress the evidence on the ground that the police entered without a warrant under exigent circumstances. In a published decision, the court of appeals affirmed. See 2009 WI App 97.

    The supreme court affirmed in a majority opinion written by Justice Ziegler that held that the police had both probable cause and exigent circumstances that justified the entry. As to probable cause, the unidentified informant had provided police with four details, relating to the defendant’s name, address, cell phone number, and sale of marijuana from that same place. The informant’s specificity of information and face-to-face dealings with the police added to his credibility (see ¶ 28). Police officers independently corroborated the first three facts when they visited the defendant to conduct a “knock and talk.” Their failure to corroborate the dope dealing “is not what probable cause demands,” although this was somewhat offset by the officers’ reasonable, albeit mistaken, belief that the defendant was wanted on an outstanding felony arrest warrant for delivering marijuana (see ¶ 29). (It was actually a misdemeanor commitment order.)

    Exigent circumstances justified the warrantless, forcible entry. The police officers did not create their own exigency. “By knocking on Robinson’s door and announcing themselves as the Milwaukee Police Department, an announcement which in fact was invited by Robinson’s question of ‘Who is it?’, the officers were conducting themselves in an utterly appropriate and lawful manner.... Simply because Robinson chose to respond to the officers’ lawful conduct by running from the door, thereby leading the officers to believe that he would destroy evidence, does not mean that we ought to overlook the exigent circumstances. It was not the officers’ knock and announcement that created the exigent circumstances” (¶ 32). Once inside the apartment, the officers lawfully observed and seized the drug evidence under the plain-view doctrine (see ¶ 33).

    Justice Bradley, joined by Chief Justice Abrahamson, dissented. They view this case and two others decided this term (see State v. Pinkard, 2010 WI 81, and State v. Artic, 2010 WI 83) as diluting the Fourth Amendment through the façade of the “knock and talk” technique (¶ 41).

    Searches – Community Caretakers

    State v. Pinkard, 2010 WI 81 (filed 15 July 2010)

    Police officers received an anonymous tip that two people were “sleeping” next to drugs in a house. The officer who took the call contacted the “gang unit,” which went to the house and confirmed that the back door was standing open. When no one responded to their knocks or calls, the police officers entered the residence, found Pinkard asleep next to a sleeping woman and assorted drug-related evidence, and arrested him. Pinkard moved to suppress the evidence on the ground that the police had unlawfully entered and searched his residence. The trial judge denied the motion in part but did suppress a gun found beneath the defendant’s mattress, holding that seizure of the gun fell well outside the bounds of the community-caretaking function, which the state offered as justification for the entry. In an unpublished opinion, the court of appeals affirmed.

    The supreme court affirmed in a majority opinion authored by Justice Roggensack that elaborates on warrantless community caretaking searches of homes. Case law supports the doctrine’s application to homes as well as cars (see ¶ 26). It is governed by a three-step test: “(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home” (¶ 29).

    The officers’ warrantless entry into the defendant’s house and search of his bedroom met the first step. As for the second, this was a “close case,” but the majority concluded “that the officers were engaged in a bona fide community caretaker function based on the following findings of the circuit court: (1) police received a reliable anonymous tip that the occupants of Pinkard’s home appeared to be sleeping near drugs, money and drug paraphernalia and that the rear door of the home was standing open; (2) the officers responded to Pinkard’s house because they were concerned about the ‘health and safety’ of the occupants; (3) the officers’ corroboration that the rear door was indeed standing open; and (4) the officers repeatedly knocked and announced their presence before entering the house and before entering the bedroom with no response of any type from Pinkard or his companion” (¶ 32). A reasonable officer could have concluded that Pinkard and his companion had overdosed on drugs (see
    ¶ 34). In sum, the anonymous tip was corroborated by the officers’ observations at the scene, which are elaborated upon in the opinion. The third step balances various factors in assessing the search’s reasonableness, including the public’s “substantial interest in police ensuring” their “well-being and safety” (¶ 48), the manner of the search itself (¶ 49), and the feasibility of alternatives. All militated in favor of a community-caretaking search that happened to be carried out by five members of a “gang unit.” Finally, the plain-view doctrine justified the seizure of the drug evidence found in the bedroom (except the gun).

    Justice Bradley dissented, joined by Chief Justice Abrahamson and Justice Prosser. They objected to the majority’s “broad application of the community caretaking function” (¶ 67) and expressed their fear that “today’s close call will become tomorrow’s norm” (¶ 66). The dissent underscored that the officers never raised any concern about the risk of an overdose and noted that such a rationale might be conveniently invoked in justifying the warrantless search of any “drug house” (see ¶ 92).

    Searches – GPS Tracking

    State v. Sveum, 2010 WI 92 (filed 20 July 2010)

    At the request of police officers, a judge signed an order authorizing police to install a global-positioning system (GPS) tracking device on the undercarriage of Sveum’s car. The police strongly suspected that Sveum was again stalking his former girlfriend. He had been convicted and sent to prison for stalking her on prior occasions. The GPS device, which had to be replaced twice, provided crucial evidence of the defendant’s whereabouts, which in turn formed the basis for additional search warrants and ultimately new charges of aggravated stalking. The defendant’s motion to suppress the GPS evidence was denied, and a jury convicted him of aggravated stalking. In a published decision, the court of appeals affirmed. See 2009 WI App 81.

    The supreme court affirmed in an opinion authored by Justice Roggensack. The court held “that the order authorizing the installation and monitoring of a GPS tracking device on Sveum’s vehicle was a valid search warrant under the Fourth Amendment. First, the order was signed by a neutral and detached magistrate. Second, Ricksecker’s affidavit provided probable cause for the portion of the order authorizing law enforcement to ‘install, use, [and] maintain’ a GPS tracking device on Sveum’s vehicle and to subsequently ‘remove’ such device. Assuming, arguendo, that the portions of the order granting law enforcement broader authority to search, i.e., authorization to search ‘any buildings and structures containing the vehicle,’ are invalid because the affidavit failed to demonstrate probable cause to search such areas, we sever those portions from the order. Finally, the order particularly described the object into which the GPS was to be placed, i.e., Sveum’s vehicle; the circumstances that led agents to seek to install the GPS, i.e., evidence of Sveum’s stalking activities; and the length of time for which GPS surveillance was requested, i.e., no more than 60 days” (¶ 39). That the order was not entitled a “search warrant” was inconsequential (see ¶ 56). The order was “reasonably executed,” and sundry statutory violations (e.g., the “returns” were untimely) were “technical irregularities” (¶ 58). The “complex, ongoing nature of the stalking justified the 35 days of GPS surveillance on a single search warrant” (¶ 67).  

    Justice Crooks concurred in a separate opinion in which he expressed his concerns about surveillance technology and his belief that this case should be “limited to similar factual situations,” namely those in which police obtain a valid search warrant to conduct surveillance on public roadways. He also echoed the sentiments of other justices who urged the legislature to “weigh in on this issue.” Justice Ziegler also concurred, but contended that the installation and monitoring of the GPS device was not a search (see ¶ 79). She also urged the legislature to regulate this procedure.

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. The dissent assumes, as did the majority, that a search had occurred but concluded that “numerous failures to comply with statutory warrant requirements” invalidated the court order on which it was based (¶ 109). “The myriad of technical, legal and policy issues involved in electronic surveillance lend themselves to legislative resolution, not ad hoc judicial authorizations or a bewilderingly complex judicial attempt to shoehorn the possibilities of new surveillance technologies into the parameters of statutes that were never meant to accommodate them” (¶ 126).

    Search and Seizure – Exclusionary Rule – Good-faith Exception Does Not Save Warrant Issued Without Judicial Authority

    State v. Hess, 2010 WI 82 (filed 15 July 2010)

    Hess was released on bond pending sentencing in a felony operating while intoxicated (OWI) prosecution. The circuit court ordered that a presentence-investigation (PSI) report be prepared, but the defendant failed to cooperate with the PSI writer in setting up a second interview (which was necessary because Hess left the first interview before it was completed). The PSI writer notified the judge about this problem, and the circuit court ordered a civil bench warrant for Hess’s arrest. A deputy sheriff then went to Hess’s residence to arrest him. While the deputy was escorting Hess to the squad car, he smelled alcohol on Hess’s breath. One condition of Hess’s bond in the OWI case was that he refrain from possessing or consuming alcohol. A blood draw was obtained from Hess at a local medical center. The state subsequently charged Hess with felony bail jumping.

    In the bail-jumping case, Hess filed a motion to suppress any evidence obtained as a result of the civil warrant (including the deputy’s observations regarding Hess’s sobriety). He alleged that the civil bench warrant was invalid because it failed to conform to the requirements for a civil bench warrant in Wis. Stat. chapter 818. Specifically, he argued that 1) none of the enumerated situations in which an arrest may be made was present, and 2) the court was not furnished with an affidavit before issuing the warrant (see ¶ 11). The circuit court denied the motion to suppress. Hess was convicted in a jury trial of bail jumping. This appeal followed. In a published opinion, the court of appeals reversed. See 2009 WI App 105. In an opinion authored by Justice Prosser, the supreme court affirmed the court of appeals.

    The supreme court concluded that the civil bench warrant issued by the circuit court was void ab initio. It suffered from two primary defects. First, the circuit court did not have statutory authority to issue a warrant for failure to meet with a PSI investigator. “Under appropriate circumstances, a circuit court has statutory authority to issue a (1) civil bench warrant, (2) a criminal bench warrant, or (3) a contempt warrant. To illustrate, had the circuit court ordered Hess to comply with the requests of the PSI writer or made his cooperation a condition of bond, the court might have ordered the defendant arrested for contempt (Wis. Stat. §§ 785.03(1)(b), 785.04(1)) or issued a criminal bench warrant (Wis. Stat. § 968.09(1)) after Hess failed to follow up with the PSI writer. Had Hess failed to appear before the court on a civil matter, a civil bench warrant would have been appropriate (Chapter 818). Under the facts of this case, however, the warrant cannot be supported by any of these various statutes. The court issued what purported to be a civil bench warrant in a criminal case on the basis of Hess’s failure to comply with an order the court never gave” (¶ 24). The second major defect in the warrant was that it was not supported by an oath or affirmation, which is “a basic constitutional requirement” (¶ 37).

    Because the circuit court had no authority to issue the warrant, the supreme court concluded that exclusion is an appropriate remedy for evidence obtained as a result of that warrant (see ¶ 29). The court discussed the two rationales underlying the exclusionary rule: deterrence of unlawful police conduct and assurance of judicial integrity. It found that in this case exclusion was necessary to preserve the integrity of the judicial process (see ¶ 3). Said the court, “judicial integrity is implicated when a judge issues a warrant that does not comply with statutory requirements and is not supported by the constitutionally required oath or affirmation” (¶ 63). Further, the court declined to apply the good-faith exception to the exclusionary rule under the facts of this case. “When fundamental constitutional and statutory requirements for issuing a warrant are completely absent, the good-faith exception cannot save the resulting unconstitutionally obtained evidence” (¶ 67).

    Justice Ziegler filed a concurring opinion in which she joined the majority opinion’s conclusion that the evidence here must be suppressed but indicated that her conclusion “is based on the fact that this warrant was per se void ab initio. This warrant was per se void ab initio because the circuit court absolutely lacked the authority to issue this warrant, regardless of the presentence investigation (PSI) author’s request” (¶ 71).

    Justice Gableman filed a dissent that was joined in by Justice Roggensack.

    Justice Crooks did not participate in this case.

    Statute of Limitation – Constitutionality of Tolling Provision Applicable to Defendants Who Are Not Publicly Residents of Wisconsin – Pre-accusation Delay

    State v. McGuire, 2010 WI 91 (filed 20 July 2010)

    McGuire was charged in 2005 with five counts of indecent behavior with a child in violation of Wis. Stat. section 944.11(2) (1965-66) for acts committed in Wisconsin between 1966 and 1968. The jury convicted him on all counts. In an unpublished opinion, the court of appeals affirmed the convictions. Before the supreme court, McGuire raised multiple issues, including constitutional challenges directed at section 939.74(3), under which the statute of limitation for the charged crimes was tolled because the defendant was not publicly a resident of Wisconsin; he also claimed that he was denied due process of law because of the roughly 36 years that passed between the offenses and the commencement of the criminal prosecution for those offenses. In a unanimous decision authored by Justice Prosser, the supreme court affirmed.

    McGuire argued that the tolling provision of section 939.74(3) is unconstitutional as applied to the facts of this case. Responding to his multipronged attack on the statute, the court concluded that the statute is constitutional. Said the court, the statute “does not violate the Privileges and Immunities, Due Process, or Equal Protection provisions of the United States Constitution. Section 939.74(3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals” (¶ 72).

    McGuire further argued that the charges against him were barred by due process because the 36-year passage of time between the commission of the offenses and the filing of charges prejudiced his defense because crucial witnesses died and evidence was destroyed. Again, the court disagreed. A defendant claiming a due-process violation as a result of pre-accusation delay must show 1) actual prejudice as a result of delay, and 2) that the delay arose out of an improper purpose, such as to give the state a tactical advantage over the defendant (see ¶ 45).

    In this case the defendant established neither of these elements. He failed to identify any improper motive or purpose on the part of the state (see ¶ 53). He also failed to meet the requisite showing of prejudice. As part of the claim of prejudice, the defendant identified a number of deceased witnesses who, he claimed, would have corroborated his defense and refuted the victims’ testimony. Said the court, “while he has identified potential witnesses and evidence that might have been relevant to issues at trial, his assertions about what that testimony would prove are speculative” (¶ 56). “The defendant must explain the substance and relevance of the witness’s testimony; the showing must be concrete, not speculative” (¶ 53). “Simply identifying deceased witnesses and describing testimony that they might have provided does not satisfy the requisite showing of actual prejudice” (¶ 54).

    Adult Court Original Jurisdiction Over Certain Juvenile Offenders – Reverse-waiver Hearings – Application of Rules of Evidence at Reverse-waiver Hearing

    State v. Kleser, 2010 WI 88 (filed 16 July 2010)

    The defendant, then 15 years old, was charged in adult court with first-degree intentional homicide, a crime over which the adult court has exclusive original jurisdiction if the offense was allegedly committed on or after the juvenile’s 10th birthday. In such a prosecution, the juvenile has a right to a criminal preliminary hearing at which the state must demonstrate probable cause to believe that the juvenile has committed “the violation of which he or she is accused in the criminal complaint.” Wis. Stat. § 970.032(1) (emphasis added). (Note: This is different from ordinary preliminary hearings, following which a defendant will be bound over for trial if the judge finds probable cause to believe that the defendant committed any felony. See Wis. Stat. § 970.03(1).)

    If the state meets its burden of establishing probable cause that the juvenile committed the charged offense, the juvenile has a right to a reverse-waiver hearing. At this hearing the juvenile must prove by a preponderance of the evidence the following three elements: 1) if convicted, the juvenile could not receive adequate treatment in the criminal justice system; 2) transferring jurisdiction to the juvenile court would not depreciate the seriousness of the offense; and 3) retaining jurisdiction in the adult court is not necessary to deter the juvenile defendant or others from committing the charged offense. Wis. Stat. § 970.032(2). If the juvenile fails to meet the burden of proof on each of these elements, the adult court must retain jurisdiction.

    This appeal concerned reverse-waiver hearings. From the lengthy majority opinion authored by Justice Prosser, several key principles governing these hearings can be derived.

    First, the statute governing reverse-waiver hearings (Wis. Stat. § 970.032(2)) permits the juvenile at those hearings to supplement the facts offered by the state about the charged offense so that the criminal court is able to evaluate the “seriousness of the offense” in considering reverse waiver. “Stated differently, the purpose of permitting additional factual evidence is not to contradict the previous finding of probable cause [at the preliminary hearing] for ‘the violation’ but rather to put the established ‘violation’ in a factual context in an effort to prove that transferring jurisdiction to juvenile court would not depreciate the seriousness of that offense” (¶ 68). The court disagreed with the state’s position that, at a reverse-waiver hearing, the evidence with respect to the “seriousness of the offense” should be limited to the specific facts brought out at the preliminary hearing or stated in the criminal complaint (see ¶ 70).

    Second, nothing in the language of section 970.032(2) precludes the admission of evidence supplementing the facts used to establish probable cause, as long as the evidence is offered for the limited purpose of proving one of the elements of a reverse waiver (see ¶ 72). “However, the juvenile may not offer evidence for the purpose of contradicting the offense charged because that offense has already been established in the preliminary examination” (¶ 84). “The place to offer evidence for the purpose of contradicting the offense charged is the preliminary examination” (¶ 7).

    Third, the rules of evidence, including the general prohibition on hearsay, apply at reverse-waiver hearings (see ¶ 89). In this case the supreme court held that the circuit judge conducting the reverse-waiver hearing erroneously admitted and relied on hearsay testimony from the juvenile’s psychologist, who was permitted to testify about the facts surrounding the victim’s death as they were related to her by the juvenile (see ¶ 90). The supreme court also found that the psychologist’s testimony improperly vouched for the truthfulness of the juvenile’s hearsay account of the facts and that the circuit court erroneously relied on that vouching testimony (see ¶¶ 98–107).

    Fourth, the supreme court further concluded that “the circuit court erroneously exercised its discretion by refusing to allow Dr. Collins [the state’s expert] to interview [the defendant] regarding the facts of the offense. In reaching this conclusion, we conclude first that [the defendant] waived his privilege against self-incrimination by putting his account of the offense into issue through his expert. We [also] conclude … that principles of fair play entitled the State to an opportunity to rebut Kleser’s uncorroborated account of the offense” (¶ 109).

    Justice Bradley filed an opinion concurring in part and dissenting in part that was joined in by Chief Justice Abrahamson.

    Sentencing – Burden of Proof When Defendant Claims Improper Judicial Reliance on Race or Gender

    State v. Harris, 2010 WI 79 (filed 14 July 2010)

    Harris was convicted of possession of cocaine with intent to deliver. He subsequently moved for resentencing or, in the alternative, for sentence modification. Among other things, he claimed that the sentencing judge made sarcastic and inappropriate comments based on stereotypes during the sentencing proceeding. The circuit court denied relief.

    In an unpublished decision, the court of appeals reversed. It agreed that the circuit court properly considered and weighed all appropriate factors and it surmised that the sentencing judge “did not harbor bias against Harris because of his race” (¶ 22). Nevertheless, the court of appeals vacated the defendant’s sentence and remanded the matter for resentencing. It did so because it concluded that several of the circuit court’s comments “suggest to a reasonable observer, or a reasonable person in the position of the defendant, that the trial court was improperly considering Harris’s race when it imposed sentence” (id.). In a majority decision authored by Justice Gableman, the supreme court reversed the court of appeals.

    The supreme court began its analysis with the principle that appellate review of sentencing is limited to determining if discretion was erroneously exercised. “Discretion is erroneously exercised when a sentencing court imposes its sentence based on or in actual reliance upon clearly irrelevant or improper factors” (¶ 30). Imposing a sentence on the basis of race or gender is an erroneous exercise of discretion (see ¶ 33). Said the court, “[the defendant] … has a constitutional due process right not to be sentenced on the basis of race or gender. No Wisconsin case has held that defendants have a due process right not to be sentenced on the basis of gender. We now so hold because to do so is in conformity with our understanding of the basic tenets of due process” (id.).

    The court further addressed the burden faced by a defendant who claims that the circuit judge erroneously relied on race or gender in imposing sentence. Applying the “clear and convincing evidence” standard, the court held that to obtain relief the defendant must provide evidence indicating that it is “highly probable or reasonably certain” that the circuit court actually relied on race or gender when imposing sentence (¶ 35).

    The supreme court reversed the court of appeals in this case because it did not apply these principles. Instead, the court of appeals utilized a “reasonable observer test” as described above. The supreme court rejected the reasonable observer test for multiple reasons: 1) it is not supported by Wisconsin case law; 2) it contradicts established law on the burden of proof; and 3) it lacks clarity and is unworkable in practice (see ¶¶ 37–43).

    Ultimately, after a lengthy analysis of the sentencing transcript (see ¶¶ 45–64), the court concluded that the defendant failed to meet his burden of proving that the trial judge relied on race, gender, or other improper factors during sentencing (see ¶ 65).

    Justice Bradley filed a concurring opinion in which she contended that a sentencing court has erroneously exercised its discretion “when the defendant demonstrates that the court actually relied, or there is a great risk that the court actually relied, on an improper factor, racial or gender stereotypes, when imposing sentence” (¶ 100). Chief Justice Abrahamson and Justice Crooks joined this concurrence.

    Appeals – Postconviction Motions under Wis. Stat. section 974.06 – No-merit Reports

    State v. Allen, 2010 WI 89 (filed 16 July 2010)

    A jury convicted Allen of robbery. Seven years after his unsuccessful direct appeal, he brought a motion for postconviction relief under Wis. Stat. section 974.06. The circuit court denied the motion on the ground that it raised issues that could have been raised in the earlier direct appeal that had been subject to no-merit procedures. In an unpublished decision, the court of appeals affirmed the circuit court.

    The supreme court affirmed in a majority opinion written by Justice Prosser. The court held that although a defendant is not required to file a response to a no-merit report, he or she must demonstrate a “sufficient reason” for failing to have raised the issues earlier in the no-merit appeal (see ¶ 4). The court explained the no-merit procedures and outlined the basic procedural requirements of section 974.06 as they relate to claims of ineffective assistance. “[T]he primary issue presented is whether Allen is procedurally barred under § 974.06(4) from raising issues about the alleged ineffective assistance of his postconviction counsel for failing to bring an ineffective assistance of counsel claim against his ‘pre-trial counsel,’ because he did not raise these issues in response to a prior no-merit report” (¶ 35).

    The court rejected Allen’s proffered reasons for having failed to raise his alleged errors earlier, which included 1) his “unawareness” of those claims at the time, 2) the fact that he is not required to respond to a no-merit report, and 3) ineffective assistance of counsel. The record belied the first excuse. The second compelled the court to plunge into the effects of its rule in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), on the no-merit procedures. A failure to comply with the “detailed no-merit procedural requirements provides a sufficient reason to permit new issues to be raised” (¶ 66). However, a defendant’s failure to respond “to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised” (¶ 72). Here the court of appeals correctly applied the no-merit procedures. The third claim also was unsupported by the record.

    Chief Justice Abrahamson, joined by Justice Bradley, concurred in the mandate. The concurrence concluded “whatever its idiosyncrasies, a no-merit procedure is a direct appeal under the law, albeit ‘a different breed of appeal.’ I conclude that the Escalona-Naranjo procedural bar applies to the defendant in this case. It is well-established that a defendant proceeding under Wis. Stat. § 974.06 ‘requires a sufficient reason to raise a constitutional issue in a § 974.06 motion that could have been raised on direct appeal’” (¶98). “Because the no-merit procedure now decisively triggers the procedural bar, which affects the defendant’s rights on further review, I conclude that counsel must discuss with the defendant the consequences of the no-merit procedure” (¶ 100). The concurrence also took issue with the “double-refracted way” in which the majority navigated the interplay of no-merit procedures and section 974.06, namely, “to decide whether the court should evaluate the merits of the defendant’s constitutional claims, the court first must evaluate the merits of the constitutional claims” (¶ 113). 

    Postconviction Practice – New Trials in Interest of Justice

    State v. Henley, 2010 WI 97 (filed 21 July 2010)

    Henley was convicted of a sexual assault. His alleged accomplices were not convicted. The circuit court later ordered a new trial in the interest of justice based on some of these later developments and concerns that Henley’s trial counsel had not effectively challenged the victim’s credibility, about which there were serious questions. The court of appeals certified this case to the supreme court.

    The supreme court reversed the court of appeals in an opinion authored by Justice Gableman. The opinion sharply curbs the authority of circuit courts to grant new trials in the interest of justice except under Wis. Stat. sections 974.02 and 809.30 (see ¶ 65). Specifically, Wis. Stat. section 805.15, a civil procedure rule, does not apply to criminal cases, contrary language in the case law notwithstanding (see ¶¶ 61, 65). The court also held that Wis. Stat. section 806.07 is “unavailable” in criminal cases “for many of the same reasons” (¶ 70). Finally, the court reined in the “inherent power” of the circuit court to grant new trials, at least in the context of Henley’s case and when section 974.06 is unavailable. “Put simply, the circuit court’s authority to revisit old arguments must end somewhere. While defendants deserve a fair hearing, defendants do not deserve unlimited, duplicative hearings. The fair administration of justice is not a license for courts, unconstrained by express statutory authority, to do whatever they think is ‘fair’ at any given point in time. Rather, any conception of the fair administration of justice must include the principle of finality. Thus, while circuit courts do have inherent powers, we do not recognize a broad, inherent power to order a new trial in the interest of justice at any time, unbound by concerns for finality and proper procedural mechanisms” (¶ 75).

    The majority also declined to exercise the supreme court’s own authority to grant a new trial in the interest of justice to Henley. The issue was whether justice had miscarried, particularly as it related to crucial testimony by a defense witness that Henley’s counsel had not explored and that the Seventh Circuit found significant in a habeas action involving Henley’s alleged accomplice.

    Justice Prosser concurred in a separate opinion that stressed the role of section 974.06 in protecting circuit courts “from a deluge of successive claims” (¶ 102).

    Justice Crooks dissented, joined by Chief Justice Abrahamson and Justice Bradley. “The majority’s decision limits a circuit court’s authority to grant a new trial in the interest of justice to those cases where the motion is filed within a 20-day window following sentencing – a rule that implies that circuit courts cannot be trusted with the inherent authority to grant and reject such motions and implies as well that the majority can envision no case where ‘the interest of justice’ cannot be ascertained and pursued within 20 days of a case’s completion” (¶ 104). The dissent “would hold that a circuit court has inherent authority to grant a motion for a new trial where the real controversy has not been fully tried or there has been a miscarriage of justice. If a circuit court, exercising its inherent authority, grants a new trial in the interest of justice on the grounds that the real controversy has not been fully tried or there has been a miscarriage of justice, such a decision is, of course, appealable as an erroneous exercise of discretion and reviewable by the Wisconsin Court of Appeals and by the Wisconsin Supreme Court” (¶ 106). On this record the dissenters found no abuse of discretion by the circuit court.

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    Rape Shield – Prior Untruthful Claim

    State v. Ringer, 2010 WI 69 (filed 8 July 2010)

    The defendant was charged with sexually assaulting his 12-year-old stepdaughter. The circuit court granted the defendant’s motion in limine to permit introduction of an alleged prior untruthful allegation of sexual assault by the victim against her biological father. The court of appeals affirmed on an interlocutory appeal.

    The supreme court reversed in an opinion authored by Justice Ziegler. Prior case law establishes that “evidence of the complainant’s alleged prior untruthful allegations of sexual assault is admissible only if the circuit court first makes three determinations: (1) the proffered evidence fits within Wis. Stat. § 972.11(2)(b)3; (2) the evidence is material to a fact at issue in the case; and (3) the evidence is of sufficient probative value to outweigh its inflammatory and prejudicial nature” (¶ 27). Here the evidence failed to meet the first element because there was insufficient proof that the victim had made a prior untruthful allegation under the conditional relevancy standard of Wis. Stat. section 901.04(2); namely, a reasonable jury could not have found that the victim had falsely reported a prior sexual assault (see ¶ 30). The court looked at four factors. First, the victim never made contradictory statements about the earlier offense. Second, her biological father’s statements may have “actually corroborate[d]” her allegations (he admitted various intimate touching but denied a sexual intent). Third, the biological father’s denials were not enough to prove the victim had lied. Fourth, the fact that the biological father “was never prosecuted in connection with [the victim’s] allegations, in and of itself, does not support a finding that the allegations were untruthful” (¶ 40).

    Chief Justice Abrahamson concurred to emphasize that because of its holding the court did not have occasion to address whether extrinsic evidence (i.e., other witnesses) could be relied on to prove the alleged prior untruthful allegation.

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    Health Care – Exclusions – Administrative Law – Judicial Review

    MercyCare Ins. Co. v. Wisconsin Comm’r of Ins., 2010 WI 87 (filed 16 July 2010)

    An insurer, MercyCare, excluded from coverage maternity services for surrogate mothers. The commissioner of insurance ruled that this exclusion violated Wis. Stat. section 632.895(7) for contracts issued in 2002 and 2005. The commissioner also determined that the 2005 contract violated Wis. Stat. section 631.20(2)(a)1. because it misleadingly described benefits that were too restricted to serve the policy’s purposes. The circuit court accorded no deference to the commissioner’s “legal conclusions” and reversed the rulings under section 632.895(7). The court of appeals certified this matter to the supreme court.

    The supreme court reversed in an opinion authored by Justice Bradley. First, addressing the appropriate standard of review, the court applied “due weight deference.” This standard “may be warranted when an agency has specialized experience with the issues regulated by the statute, but has not yet interpreted the specific statutory language at issue” (¶ 37). The court acknowledged “that in most situations, applying due weight deference will lead to the same result as would applying no deference at all” (id.).

    The court then held that the commissioner’s interpretation was reasonable and not contrary to the statute’s clear meaning, and that the construction advanced by the insurer and the concurring justices was not “more reasonable” (¶ 67). “We conclude that the statute permits an insurer to exclude or limit certain services and procedures, as long as the exclusion or limitation applies to all policies. However, an insurer may not make routine maternity services that are generally covered under the policy unavailable to a specific subgroup of insureds, surrogate mothers, based solely on the insured’s reasons for becoming pregnant or the method used to achieve pregnancy” (¶ 68). The court also upheld the commissioner’s ruling that the 2005 contract was misleading and contravened section 631.20(2)(a)1.

    Justice Roggensack concurred, joined by Justice Ziegler and Justice Gableman. The concurrence would have reviewed the issue de novo. The concurring justices also concluded “that § 632.895(7) permits MercyCare to exclude coverage for gestational carrier services, even though the 2002 MercyCare policy did not do so” (¶ 83).

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    Landlord-tenant Law

    Responsibility for Fire Damage – Construction of Apartment Lease

    Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64 (filed 7 July 2010)

    Connell rented an apartment from Maryland Arms Limited Partnership. The unit was damaged as a result of a fire. The fire investigation report issued by the local police department identified a “plugged in hair dryer” as the “cause of the fire.” After Connell did not pay for the damage, Maryland Arms filed suit against her. It made no allegations of negligence; instead it claimed Connell was liable for the fire damage under the terms of the residential lease. The “liability paragraph” of the lease provided as follows: “Lessee shall be responsible for all intentional and negligent acts or breaches of this Lease by Lessee, Lessee’s occupants, guests and invitees. Lessee shall be liable for all damage to the premises and appliances and equipment belonging thereto, in any way caused by the acts of Lessee, Lessee’s occupants, guests and invitees.”

    The circuit court granted summary judgment in favor of Maryland Arms. In a published decision, the court of appeals reversed. See 2009 WI App 87. In a majority decision authored by Justice Bradley, the supreme court modified the analysis of the court of appeals and, as modified, affirmed.

    Maryland Arms argued that, under the terms of the lease, the tenant is liable because she had “control” of the hair dryer and “but for the acts of this tenant to introduce into this unit the hair dryer that caused the fire,” the fire damage would not have occurred (¶ 2). The court responded that “[b]ecause the essential principle posed by Maryland Arms, ‘control,’ does not appear in the sentence in question [the second sentence of the liability paragraph quoted above] and because it is unclear that the parties intended that the conduct here would constitute an ‘act’ which would impose liability on the tenant, we determine that the sentence in the residential lease is ambiguous” (¶ 38).

    The majority continued that, even if it determined that the second sentence of the liability paragraph unambiguously imposed absolute liability on the tenant when read in isolation and that such a construction were reasonable, it would be forced to pause when examining the liability paragraph as a whole (see ¶ 39). Said the court, “if the second sentence is read as broadly as Maryland Arms asserts, then the first sentence has no independent meaning. The first sentence provides that the tenant is ‘responsible’ for intentional and negligent acts or breaches of this lease’ by the tenant or her guests. The second sentence provides that the tenant is ‘liable for all damage ... in any way, caused by the acts of’ the tenant or her guests. Intentional acts, negligent acts, and breaches are subsets of the broader category ‘any acts.’ If the second sentence covered any and all ‘acts,’ then it would necessarily cover the types of acts described in the first sentence. Construing the second sentence as broadly as Maryland Arms asserts would subsume the meaning of the first sentence, rendering it mere surplusage. Given the risk of surplusage, we conclude that the language of the second sentence, when read in the context of the policy’s other language, is reasonably susceptible to another construction measured by the objective understanding of an ordinary tenant. Thus, the terms of the lease do not unambiguously provide that Connell is liable for the fire damage caused in part by her acts of bringing a hair dryer into the apartment and plugging it in to an electrical outlet” (¶¶ 41–43).

    Having determined that there is ambiguity in the liability paragraph quoted above, the court had to construe the words to determine the meaning. Maryland Arms argued that the liability paragraph imposes absolute liability. The tenant offered an alternative interpretation: “She explains that the first sentence assigns ‘responsibility’ to the tenant for ‘intentional or negligent acts [and] breaches of this lease.’ Under the first sentence, the tenant is ‘responsible’ regardless of whether the act or breach of the lease is the act of the tenant or of the tenant’s ‘occupant, guest, or invitee.’ The second sentence describes what the tenant is liable for if she breaches the duties described in the first sentence – the tenant is liable for the damage caused to ‘the premises and appliances and equipment belonging thereto’” (¶ 46). Said the court in response, “[b]ecause [the tenant’s] interpretation construes the ambiguity against the drafter and avoids a construction that would render the first sentence meaningless surplusage, we conclude that she offers the more reasonable interpretation of the Liability Paragraph. Therefore, we read the ‘acts’ discussed in the second sentence to refer to the acts that the lease provides responsibility for in the first sentence – intentional or negligent acts or breaches of the lease” (¶ 47).

    Accordingly, the court concluded that the terms of the lease do not unambiguously provide that the tenant is liable for the fire damage caused in part by her acts of bringing a hair dryer into the apartment and plugging it into an electrical outlet (see ¶ 49).

    Justice Ziegler filed a concurring opinion. Justice Prosser filed a dissent that was joined in by Justice Gableman.

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    Public Records Law

    “Records” – Private Emails of Public Employees

    Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86 (filed 16 July 2010)

    This case addressed whether the contents of public sector employees’ personal emails are records available to a requester under the Public Records Law, Wis. Stat. sections 19.31–.39, when the emails are sent or received on government email accounts and created or maintained on government-owned computers pursuant to the employer’s permission for occasional personal use, and the content has no connection to a government function (see ¶ 16). The issue of whether such emails are records within the meaning of the Public Records Law is a question of first impression in Wisconsin (see ¶ 15). The answer to this question generated a lead opinion joined in by three justices, two concurring opinions, and a dissent by two justices. From this complex of opinions, the following holdings can be derived:

    Four justices (Justices Bradley, Gableman, Roggensack, and Ziegler) concluded that the emails are records within the meaning of the Public Records Law. “Accordingly, a majority of the court holds that emails created in government email accounts, on government computers, maintained by government servers are ‘records’ subject to the Public Records Law” (¶ 188 n.2). The lead opinion of the court, authored by Chief Justice Abrahamson and joined by Justices Crooks and Prosser, reached a contrary conclusion. Said the Chief Justice, multiple avenues of statutory interpretation lead to one conclusion: “In determining whether a document is a record under Wis. Stat. § 19.32(2), the focus is on the content of the document. To be a record under § 19.32(2), the content of the document must have a connection to a government function. In the instant case, the contents of the [public school teachers’] personal e-mails have no connection to a government function and therefore are not records under Wis. Stat. § 19.32(2)” (¶ 140). The lead opinion did note, however, that the contents of personal emails could be records under the Public Records Law under certain circumstances. “For example, if the e-mails were used as evidence in a disciplinary investigation or to investigate the misuse of government resources, the personal e-mails would be records under Wis. Stat. § 19.32(2). A connection would exist between the contents of the e-mails and a government function, namely the investigations” (¶ 141).

    A majority of the justices (Chief Justice Abrahamson and Justices Crooks, Bradley, Prosser, and Gableman) agreed that the custodian of the emails should not release the contents of emails that are purely personal and evince no violation of law or policy (see ¶ 10 n.4). The lead opinion of the Chief Justice, in which Justices Crooks and Prosser joined, concluded that the emails should not be released because they are not records under the Public Records Law; accordingly the lead opinion did not reach the question of balancing the public interest favoring disclosure with any other public interest (see ¶ 142). Though concluding that the emails are records, Justice Bradley further concluded that “whenever the content of an email is purely personal and evinces no violation of law or policy, the public interest in nondisclosure will always outweigh the public interest in disclosure. Therefore, once the custodian determines that certain emails are purely personal and evince no violation of law or policy, the custodian does not undertake a balancing of each request. Like the lead opinion and Justice Gableman’s concurrence, I determine that the content of such emails should not be released” (¶ 172).

    For his part Justice Gableman concluded that the emails are records within the meaning of the Public Records Law but agreed with the majority that the teachers’ emails should not be disclosed: “[W]hen a record is of a purely personal nature and does not evince a violation of any law or employer policy, I conclude that the public interest in nondisclosure always outweighs the public interest in disclosure. Thus, I conclude that the teachers’ personal e-mails not reflecting a violation of law or policy should not be released” (¶ 173).

    Justice Roggensack filed a dissenting opinion: “Because I conclude that these emails are records and that the teachers have not met their burden to show that the public’s interest in nondisclosure outweighs the public’s interest in disclosure of these emails, I respectfully dissent” (¶ 188). “This broad exception [to the Public Records Law] prevents the public from discovering what public employees are doing during the workday, in the workplace, using equipment purchased with public funds. In so doing, the court contravenes Wisconsin’s long history of transparency in and public access to actions of government employees” (¶ 230). Justice Ziegler joined Justice Roggensack’s dissent.

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    Real Property

    Appurtenant Easements – Express Easements – Trespass

    Grygiel v. Monches Fish & Game Club Inc., 2010 WI 93 (filed 20 July 2010)

    Monches Fish & Game Club Inc. (the club) has an easement over Grygiel’s property “for the purpose of ingress and egress as a means of access” to the club’s property. Grygiel alleged that Scheife (a club member) and several invitees crossed the easement and entered the club’s land for the purpose of accessing and hunting on property located south of the club’s land. Grygiel claimed that this use of the easement violated the terms thereof and therefore constituted a trespass of Grygiel’s property. The circuit court dismissed the action on summary judgment. In a published decision, the court of appeals affirmed. See 2009 WI App 102.

    In a majority decision authored by Justice Roggensack, the supreme court reversed the decision of the court of appeals. The issues were whether Scheife’s use of the easement to achieve access to property other than the club’s property contravened the express terms of the club’s easement and, if so, whether Scheife committed trespass on Grygiel’s property by that act.

    The easement in question is an appurtenant easement. It thus created two distinct property interests: the dominant estate and the servient estate. The dominant estate is the estate that enjoys the privileges granted by an easement, and the servient estate is that estate on which the privileges are exercised (see ¶ 14). An appurtenant easement exists for the benefit of the dominant estate alone (see ¶ 36). In this case the club had a written easement, and its members and their invitees had the right to use the easement in accordance with its express terms to access or leave club property. The court concluded that the written easement was unambiguous and that Schiefe’s use of the easement to access property other than club property contravened the express terms of the easement (see ¶ 33). It did not impose on Grygiel an obligation to demonstrate that Schiefe’s conduct placed any additional burden on the servient estate (Grygiel’s property) (see ¶¶ 29–30). 

    The court further held that “when an easement holder’s use of an express easement contravenes its express terms, absent consent or some other circumstances permitting lawful entry on the grantor’s property, the easement holder may be held liable for trespass” (¶ 42). It concluded that Scheife is liable to Grygiel for trespass because he intentionally entered Grygiel’s land without consent (see ¶ 45).

    Easements – Transferable Rights

    Borek Cranberry Marsh Inc. v. Jackson County, 2010 WI 95 (filed 21 July 2010)

    In 1977 Carl Nemitz purchased an easement from Jackson County granting him sand removal and water flowage rights to county land adjacent to his property. The water flowage rights were granted to “Carl Nemitz, his heirs, and assigns” while the sand removal rights were granted to “the Grantee,” who is described in the deed as “Carl Nemitz.” Nemitz later transferred his land, along with his sand removal rights and water flowage rights, to Julius and Darlene Borek, who then transferred them to Borek Cranberry Marsh Inc. (BCM). When BCM attempted to exercise the sand removal rights, the county objected on the ground that the sand removal rights were nontransferable. BCM brought suit, and the circuit court agreed with the county that the sand removal rights were nontransferable because they had been granted to Nemitz alone, and not to “Nemitz, his heirs, and assigns,” as the water flowage rights had been. In a published decision, the court of appeals reversed. See 2009 WI App 129. The issue before the supreme court was whether the 1977 easement granted Nemitz a transferable right to remove sand from county land.

    In a majority opinion authored by Justice Gableman, the supreme court held that it did. Wisconsin Statute section 706.10(3) provides that every conveyance of an interest in land conveys full title to that interest unless the language of the conveyance indicates otherwise by express language or necessary implication. The court concluded that this statute applies to easements (see ¶ 21).

    The court held that the deed in question does not provide any express language stating that the sand removal rights were not fully transferable (see ¶ 26). Further, it disagreed with the county that the county’s reading of the easement (i.e., the sand removal rights were intended to be personal to Nemitz and nontransferable) is a necessary implication of the easement’s terms (see ¶ 33). (The court defined necessary implication as “one that is so clear as to be express; it is a required implication. Said another way, where the terms of a conveyance contain a necessary implication, an interpretation otherwise would constitute a perverse misconstruction of the language”(¶ 27).)

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

    Takings – Consequential Damage – Inverse Condemnation

    E-L Enters. Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58 (filed 2 July 2010)

    The Milwaukee Metropolitan Sewerage District (MMSD) contracted with Bowles Contracting Inc./Tomasini Construction Inc. Joint Venture (BCI/TCI) to construct a segment of its sewer system. To do so BCI/TCI extracted groundwater from the vicinity of plaintiff E-L Enterprises’ building. According to E-L, the removal of the groundwater damaged the building’s wood piles, causing the building to settle and reducing the value of the property (see ¶ 23). E-L filed suit against the MMSD and the insurer for the now defunct BCI/TCI. Before trial the insurer settled E-L’s claims for negligence and continuing nuisance against BCI/TCI in a confidential settlement. As for the claims against the MMSD, the circuit court dismissed E-L’s negligence and nuisance causes of action on the basis of governmental immunity. However, the claim against the MMSD for inverse condemnation proceeded to trial, at which E-L prevailed. The circuit court further awarded E-L attorney fees and costs on the inverse condemnation under Wis. Stat. chapter 32. In a published decision, the court of appeals affirmed. See 2009 WI App 15.

    The supreme court, in a majority decision authored by Justice Ziegler, reversed the decision of the court of appeals. It summarized the two issues before it as follows: “(1) whether the Sewerage District’s conduct constituted a taking of E-L’s property without just compensation in violation of Article I, Section 13 of the Wisconsin Constitution and the Fifth Amendment of the United States Constitution; and (2) whether E-L has established an inverse condemnation claim under Wis. Stat. § 32.10 (2007-08), entitling E-L to attorney fees and costs” (¶ 4).

    The court concluded that E-L’s takings claim must fail. Under the Wisconsin Constitution, two types of governmental conduct can constitute a taking: 1) an actual physical occupation of private property, or 2) a restriction that deprives an owner of all, or substantially all, of the beneficial use of his property (see ¶ 22). A similar analysis is used under the U.S. Constitution. Applying these principles, the majority concluded that “the damages E-L suffered are mere consequential damages to property resulting from governmental action, which are not compensable under Article I, Section 13 of the Wisconsin Constitution or the Takings Clause of the Fifth Amendment. E-L seeks damages for the cost to repair its building and the loss of use of the wood piles. However, the Sewerage District did not physically occupy E-L’s building or wood piles. The Sewerage District did not use the building or wood piles in connection with the sewer installation, and the public obtained no benefit from the damaged building or wood piles. Rather, the wood piles were damaged as a result of the Sewerage District’s alleged negligent construction of the sewer. Accordingly, we have in this case only damage, without appropriation to the public purpose. Such damage is not recoverable in a takings claim but instead sounds in tort. The circuit court already dismissed E-L’s tort claims against the Sewerage District on the grounds of governmental immunity under Wis. Stat. § 893.80(4)” (¶ 33) (internal quote and citations omitted).

    For the same reasons, the supreme court held that E-L’s inverse condemnation claim under Wis. Stat. section 32.10 must fail. A landowner who believes that his or her property has been taken by the government without instituting formal condemnation proceedings may bring an inverse condemnation claim under section 32.10 to recover just compensation for the taking (see ¶ 36). “[U]nder this court’s jurisprudence, in order to state a claim of inverse condemnation under § 32.10, the facts alleged must show either that there was an actual physical occupation by the condemning authority or that a government-imposed restriction deprived the owner of all, or substantially all, of the beneficial use of his property” (¶ 37). E-L failed to prove the elements of an inverse condemnation claim and thus is not entitled to its attorney fees and costs under section 32.28(3).

    In a footnote, the majority observed that “E-L is not without a remedy for the damage to its building caused by the alleged negligent construction of the sewer. Subject to the parties’ confidential agreement, E-L has already been compensated an undisclosed amount by CNA, the insurer for the now defunct contractor” (¶ 33 n.23).

    Justice Bradley filed a concurring opinion. Justice Prosser dissented.

    Easements – Riparian Rights

    Konneker v. Romano, 2010 WI 65 (filed 7 July 2010)

    When the Konnekers bought land near a lake, the conveyance included an easement across riparian property on the lake itself. After neighbors blocked their efforts to place a pier on the lakefront, the Konnekers filed this action seeking a declaratory judgment that “the easement granted to them riparian rights, including the right to erect and maintain a pier on the easement” (¶ 13). The circuit court granted summary judgment in favor of the Konnekers, but the court of appeals reversed and granted summary judgment to the defendants.

    The supreme court reversed in an opinion written by Justice Ziegler. “This case presents the following issues: (1) whether this lakefront easement, created by a deed that is otherwise silent as to the easement’s use and purpose, grants riparian rights, including the right to construct and maintain a pier; and (2) what impact, if any, do Wis. Stat. §§ 30.131 and 30.133 (2007-08) have on this case” (¶ 2). On the easement issue, the court held that the deed conferring the easement was ambiguous. “Clearly, the deed conveys to the Konnekers a 20-foot wide lakefront easement along the west side of the Romanos’ and Nelsons’ property. However, the deed is otherwise silent as to the easement’s use and purpose. In particular, it is not clear from the deed whether the parties intended the easement holder to have riparian rights, including the right to construct and maintain a pier” (¶ 30). Competing affidavits raised disputed issues of material fact regarding the scope of the easement.

    The court also held that neither section 30.131 nor section 30.133 affected this action. The former statute bars riparian owners from granting easements that include riparian rights but only applies to conveyances after 1994 – this easement was conveyed in 1983. Section 30.133 governs the placement of piers in navigable waters by a nonriparian owner but does not control whether the Konnekers have riparian rights in the first place (see ¶ 40).

    Chief Justice Abrahamson, joined by Justice Bradley, concurred. They urged that “the focus on remand should be not on whether the easement grants riparian rights, but on determining what rights or interests the easement was intended to grant” (¶ 45). “[T]he issue raised centers on the right to install and maintain a pier, not on riparian rights more generally” (¶ 53).

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    Governmental Immunity – Ministerial Duties

    Pries v. McMillon, 2010 WI 63 (filed 2 July 2010)

    The plaintiff was working with McMillon, a state employee, disassembling horse stalls at the Wisconsin State Fair Park. The 10’-by-10’ steel-walled stalls were four inches thick and secured with a combination of pins and chains. When one section became stuck, McMillon clambered on top of the wall and began “jerking it up and down” even though the piece was no longer chained to the building’s wall. A “devastating accident” occurred when that steel piece fell and knocked down others in a “domino effect,” injuring the plaintiff. The circuit court ruled that McMillon’s negligence caused the plaintiff’s injury. It also ruled that McMillon’s conduct was excepted from governmental immunity by the ministerial-duty exception, which applied because written instructions mandated that someone support the walls during the disassembly process. The court of appeals affirmed but based its decision on the “known danger” exception to governmental immunity. See 2008 WI App 167.

    The supreme court affirmed in an opinion written by Justice Crooks. “The rule of governmental immunity provides that state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties” (¶ 20). The rule has several exceptions, including the ministerial-duty exception and the known-danger exception. “The two exceptions overlap to an extent, inasmuch as they both require the identification of a ministerial duty.... [A] ministerial duty for purposes of the ministerial duty exception is imposed by law or policy and performance is required in a time, manner, and under conditions where the officer does not exercise discretion or judgment. In contrast, the ministerial duty for purposes of the known danger exception arises not from a written law or policy, but when an obviously dangerous situation presents itself” (¶ 24).

    The specific question before the court was as follows: “Did the instructions establish a ministerial duty that McMillon then violated when he jumped on and shook the stuck stall knowing that ‘the chains were undone’ and knowing of the instructions to
    ‘[a]lways have someone holding up the piece that you are taking down’?” (¶ 25) The court held that the instructions created a ministerial duty, especially considering their mandatory language and McMillon’s own understanding of procedures. The court found it unnecessary to discuss whether the known-danger exception applied.

    Chief Justice Abrahamson concurred but concluded that the known-danger exception provided a simpler and more persuasive analysis (see ¶ 43).

    Justice Bradley dissented, joined by Justice Roggensack and Justice Gableman. The dissent worried that the majority’s opinion expands liability of public officers through the ministerial-duty exception because the instructions at issue here “suffer[ed] from a critical lack of particularity as to time, mode and occasion for performance” (¶¶ 53, 69).

    Justice Gableman filed a separate dissent that called for the court to “reexamine” the case law governing governmental immunity (see ¶ 91).

    Independent Contractors – Liability

    Tatera v. FMC Corp., 2010 WI 90 (filed 20 July 2010)

    Tatera died of lung cancer apparently caused by asbestos contained in the materials with which he worked. The asbestos products had been supplied by FMC for processing by Tatera’s company. Tatera’s estate sued FMC for negligence and strict liability. The circuit court granted summary judgment in favor of FMC. The court of appeals affirmed on the strict-product-liability claim but reversed on the negligence claim. See 2009 WI App 80.

    The supreme court reversed the court of appeals in an opinion written by Justice Ziegler. The general rule is that a principal employer (FMC) is not liable in tort for injuries sustained by an independent contractor’s employee (Tatera) while he or she is performing the contracted work (see ¶ 18). At the outset, the court rebuffed the estate’s contention that Tatera’s employer’s relationship with FMC was that of a bailee, not that of an independent contractor. The “factual indicia” control, said the court, regardless of whatever labels are used by the parties (see ¶ 20). The court also held that the estate failed to raise a disputed issue of fact regarding whether FMC’s conduct fell within either of two exceptions to the general rule.

    First, “[a] principal employer may be liable to an independent contractor’s employee for injuries caused by the principal employer’s affirmative act of negligence” (¶ 22). Tatera’s allegations, however, involved omissions, not affirmative acts. And although FMC supplied the asbestos-laden material, its act of “supplying a dangerous chattel does not alone give rise to negligence. The crux of Tatera’s claim is the alleged failure to warn of the dangerousness of the chattel supplied” (¶ 30). “The affirmative act exception would be eviscerated if a principal employer’s liability is met through an omission. We decline to so hold and thereby overturn over three decades of precedent” (¶ 31).

    The second exception applies when an independent contractor’s employee is engaged in an “extrahazardous activity.” As a matter of law, however, the court held that “machining an asbestos-containing friction disk is not an extrahazardous activity because steps may be taken to minimize the risk of injury. Therefore, while inherently dangerous, the activity of machining an asbestos-containing friction disk does not create an exception to FMC’s protection from tort liability” (¶ 36).

    Justice Crooks dissented, joined by Chief Justice Abrahamson and Justice Bradley, and stated that the estate raised genuine issues of disputed facts on which it was entitled to a trial, particularly as to claims sounding in section 388 of the Restatement (Second) of Torts (see ¶ 41). Under section 388, FMC was a supplier (see ¶ 56). The dissent found “indefensible” (¶ 64) the majority’s sweeping conception of “omissions,” concluding that FMC’s supplying of the asbestos was an affirmative act (see ¶ 69).

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    Worker’s Compensation

    Insurance – The Fund – Retroactivity

    Society Ins. v. LIRC, 2010 WI 68 (filed 8 July 2010)

    Liska suffered a severe work-related injury in 1982. Society Insurance (Society) paid various benefits through June 1990. “Under the law in effect at the time of Liska’s injury, Society’s liability to pay Liska’s benefits or treatment expense expired on June 12, 2002, pursuant to the 12-year statute of limitations” (¶¶ 3, 22). Any subsequent payments to Liska were to be paid from the statutorily mandated Work Injury Supplemental Benefit Fund (the Fund), not a private insurer like Society. In 2006 the legislature amended the statutes in a way that shifted the responsibility for the post-2002 payments from the Fund back to Society. The circuit court declared that the retroactive application of Wis. Stat. section 102.17(4) and 102.66 violated Society’s constitutional rights under the due process and contract clauses. The court of appeals certified the case to the supreme court.

    The supreme court affirmed in an opinion written by Justice Roggensack that held that the retroactive application of these amended statutes violated Society’s constitutional rights. The parties conceded that the pertinent statutes applied retroactively to Liska’s claim and that before the amendments the Fund was liable for those payments. The majority opinion framed the issue as an “as-applied” challenge to the statutes’ constitutionality; thus, it declined to apply any presumption of constitutionality (see ¶ 27).

    The court identified the interests at stake, concluding that Society had met its burden of establishing beyond a reasonable doubt that retroactive application of Wis. Stat. sections 102.17(4) and 102.66 violated its due-process rights (see ¶ 53). The record was “devoid” of any evidence that the shift was meant to ensure the Fund’s solvency (see ¶ 54). The amendments also unconstitutionally impaired Society’s contract rights. “The legislation here modified a basic term of an insurance contract – the extent of an insurer’s liability for traumatic injury claims – which was bargained for and reasonably relied upon by the parties. This ‘result[ed] in a completely unexpected liability’ to Society after its original period of liability had expired, namely, new liability on Liska’s claim until his death. Furthermore, this completely unexpected liability exposes Society to potentially significant losses” (¶ 67).

    Justice Crooks dissented, joined by Chief Justice Abrahamson and Justice Bradley, on the ground that the record “was missing facts necessary” to assess the statutes’ constitutionality (¶ 70). The dissent further criticized the majority for holding “the wrong party accountable for the failure to provide the facts necessary to the balancing test” (¶ 77).

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