Wisconsin Lawyer: Court of Appeals Digest:

State Bar of Wisconsin

Sign In

Top Link Bar

    WisBar.org may be unavailable on February 21 starting at 5 p.m. until 9 p.m. for system maintenance.​​​​​​

    Wisconsin LawyerWisconsin Lawyer

News & Pubs Search


    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at http://www.wisbar.org/wislawmag. Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Share This:

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 12, December 2011


    Criminal Procedure

    Prison Inmates – Forced Administration of Nutrition – Extension of Court Orders for Forced Feeding

    Wisconsin Dep’t of Corrections v. Lilly, 2011 WI App 123 (filed 18 Aug. 2011) (ordered published 28 Sept. 2011)

    In Wisconsin Department of Corrections v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, the court of appeals established standards and procedures that must be observed to satisfy an inmate’s right to procedural due process before his or her liberty interest in avoiding unwanted medical treatment, including unwanted nutrition and hydration, may be infringed upon. In the present case, the court of appeals confronted a number of issues that arose when the Department of Corrections (DOC) sought an order extending a previous order for the forced feeding of an inmate.

    In a lengthy and fact-laden opinion authored by Judge Vergeront, the court of appeals articulated the specific issues before it and its related holdings as follows:

    1) In light of Saenz, what is the correct legal standard for the showing the DOC must make to obtain a court order continuing to authorize the forced feeding of an inmate?

    The court of appeals concluded that “in this situation DOC must show that: (1) if forced feeding is withdrawn, it is likely the inmate would continue his or her hunger strike; and (2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. We also conclude that the ‘compelling circumstances’ exception the circuit court employed [in reaching a decision to deny the DOC’s request for continued authorization to force feed the inmate] is inconsistent with Saenz, and we therefore do not adopt it” (¶ 2).

    2) In the context of the DOC’s application for initial or continued authorization to force feed an inmate, must the circuit court accord a presumption of validity to the opinions of qualified physicians on matters involving their professional judgment?

    The appellate court held that “in this context the circuit court must accord the physicians’ opinions a presumption of validity” (id.).

    3) What is the correct legal standard for analyzing an inmate’s objections to the manner in which the forced feeding has been carried out?

    The court found that “objections to the manner of forced feeding that may implicate the Eighth Amendment are properly before the circuit court when DOC seeks an order continuing to authorize forced feeding of an inmate” (id.).

    4) What is the proper scope of an order authorizing a continuation of forced feeding for an inmate?

    The court of appeals held that “[c]onsistent with the principle of deference to the professional judgment of the physicians treating the inmate, we conclude that, in general, an order authorizing, or continuing to authorize, forced feeding should not prescribe the specifics of how and when it is carried out. However, if the circuit court determines that any particular aspect of the manner in which forced feeding has been carried out constitutes a violation of an inmate’s constitutional rights, the order authorizing forced feeding or continuing to authorize forced feeding must prohibit that particular practice or procedure” (id.).


    Exclusions – Parental Sponsorship

    Progressive N. Ins. Co. v. Jacobson, 2011 WI App 140 (filed 27 Sept. 2011) (ordered published 19 Oct. 2011)

    Two young men died after the driver of the car in which they were riding lost control of the vehicle. The driver’s license of the driver, a minor, was sponsored by his mother pursuant to Wis. Stat. section 343.15, which made her jointly and severally liable for her son’s negligence when operating a motor vehicle. Her son owned and insured his car himself. His car was not, however, insured under his mother’s automobile liability policy with Progressive, which also contained an exclusion for a “relative.” The last sentence of the exclusion, however, stated that the exclusion was inapplicable if the insured (the mother) “used” a relative’s vehicle. The estates of the deceased passengers contended that the mother’s sponsorship constituted “use,” thereby triggering coverage. The circuit court disagreed, granting summary judgment in favor of Progressive on grounds that there was no coverage under the Progressive policy for the mother’s statutory liability for her son’s negligence.

    The court of appeals affirmed in an opinion written by Reserve Judge Cane. “Whether an insured’s sponsorship of a relative’s driver’s license constitutes a use of the relative’s vehicle appears to be a novel question. Although each party trumpets a sponsorship case it believes controlling, we deem the matter unresolved” (¶ 14). After examining the cases, the court held that sponsorship was not tantamount to use. “Mere sponsorship is an act too far removed from the inherent nature of a vehicle to deem a ‘use’ by an insured. The sponsorship statute does not require that the sponsor accompany the juvenile, give the juvenile permission to drive, or even know that the juvenile is driving. The statute simply makes the sponsor liable for the negative consequences of the juvenile’s wrongful conduct. In this way, sponsorship is akin to an act that, while tangentially related to a use of an auto, falls short of being a risk for which the parties contemplated coverage” (¶ 19).

    Municipal Law

    Municipal Administrative Procedures – Wis. Stat. chapter 68 – Certiorari Review – Remedies

    Guerrero v. City of Kenosha Housing Auth., 2011 WI App 138 (filed 21 Sept. 2011) (ordered published 19 Oct. 2011)

    Guerrero was a participant in the Section 8 rent-assistance program administered by the Kenosha Housing Authority (KHA). Section 8 is a low-income-housing/rental-assistance program originally created under the United States Housing Act of 1937; it is administered by state or local governmental entities called public housing agencies, such as the KHA. The KHA’s board of commissioners (the board) terminated the plaintiff’s public housing assistance. On certiorari review, the circuit court upheld the board’s decision. The court of appeals reversed the decision of the circuit court. In an unpublished decision, the court of appeals held that the termination notice was insufficient under due-process standards because it failed to provide any information regarding when the plaintiff’s alleged violation occurred and what evidence the KHA had to support its assertions. The appellate court remanded the case to the circuit court with directions to grant appropriate relief consistent with its decision (see ¶ 4).

    On remand, the circuit court reversed the board’s order and remanded the matter to the KHA for further proceedings consistent with its remand and with the court of appeals’ decision, including a determination of the plaintiff’s rights and remedies. The plaintiff then appealed this circuit court order to the court of appeals. She argued that the circuit court on certiorari should have granted equitable relief in the form of 1) immediate reinstatement of her public housing rental subsidy and 2) the restoration of her past rental subsidies.

    In a decision authored by Judge Neubauer, the court of appeals affirmed the order of the circuit court. It concluded that the plaintiff’s requests for relief are not within the purview of certiorari review under Wis. Stat. chapter 68 (the chapter governing municipal administrative procedures).

    In the earlier unpublished decision in this case referred to above, the appellate court held that the KHA did not act according to the law because it failed to afford Guerrero due process. Upon reaching that conclusion, a certiorari court can reverse the agency’s decision and remand it to the agency to hold a new hearing. However, a certiorari court cannot order the board to perform a certain act. Thus, a court on certiorari review is without statutory authority to provide the equitable relief Guerrero requests. Moreover, Guerrero’s claim for ‘restoration’ of the rental subsidy is a claim for damages. Damages are unavailable in Wis. Stat. § 68.13 proceedings” (¶¶ 9-10) (citations omitted).

    Alcohol License Renewals – Procedural Protections – Void Licenses

    Wisconsin Dolls LLC v. Town of Dell Prairie, 2011 WI App 141 (filed 1 Sept. 2011) (ordered published 19 Oct. 2011)

    Wisconsin Dolls LLC owns and operates an adult-oriented resort facility in Wisconsin Dells. In December 2004, Wisconsin Dolls applied for a combination Class “B” license for fermented malt beverages and “Class B” license for intoxicating liquor. On the application for the license, next to “Premises description,” Wisconsin Dolls filled in “all 8 acres of resort.” The application was approved, and the town of Dell Prairie issued a license to Wisconsin Dolls that identified the premises as “Wisconsin Dolls Resort, 4179 State Highway 13, All 8 acres of the resort.” After several annual renewals of this license, including a renewal in 2008-09, the local town board decided to issue a renewal for 2009-10 but limited the renewal to the “Main Bar/Entertainment Building” on the premises.

    Wisconsin Dolls sought circuit court review by certiorari of the town’s decision, asserting that the town’s action constituted a nonrenewal of Wisconsin Dolls’ license. Therefore, Wisconsin Dolls argued, the town was required to follow the notice and hearing procedures specified in Wis. Stat. section 125.12(3) and could deny renewal only for statutorily prescribed reasons. The circuit court concluded that the town’s action was not a nonrenewal and dismissed the complaint. In a decision authored by Judge Vergeront, the court of appeals affirmed.

    The appellate court concluded that the license covering all eight acres of Wisconsin Dolls’ property violated Wis. Stat. chapter 125 and was therefore void (see ¶ 11). Both Class “B” and “Class B” licenses must “particularly describe the premises for which issued.” Wis. Stat. §§ 125.26(3), 125.51(3)(d). The court held that this phrase means that “the license must contain sufficient detail to identify the specific areas where the alcohol beverages will be sold or stored or both. We conclude that merely identifying the total amount of acreage of the licensee’s property does not fulfill this definition. It does not identify the specific area or areas in the total acreage where the licensed activity will occur” (¶ 20).

    The appellate court further concluded that “because the 2008-2009 license was void, Wisconsin Dolls was not entitled to the statutory protections for license renewal under § 125.12(3) nor to procedural due process under the Fourteenth Amendment to the United States Constitution” (¶ 2).

    Open Records Law

    Punitive Damages – Mandamus

    The Capital Times Co. v. Doyle, 2011 WI App 137 (filed 28 Sept. 2011) (ordered published 19 Oct. 2011)

    The plaintiff newspaper demanded that former Gov. James Doyle’s office disclose letters relating to various judicial candidates. The governor’s office released the documents approximately 90 minutes before Gov. Doyle announced the appointees’ identities. The newspaper sued Gov. Doyle for punitive damages. The circuit court dismissed the action because the newspaper failed to file a timely mandamus action to obtain relief.

    The court of appeals affirmed in an opinion authored by Chief Judge Brown. The issue boiled down to whether requesters may use “an ordinary civil action seeking punitive damages instead of using the mandamus procedure outlined in our state’s open records statute” (¶ 2). The court said no, holding that “Wis. Stat. § 19.37 unambiguously limits § 19.37 punitive damages claims to mandamus actions” (¶ 7).

    The procedure accorded with precedent on punitive damages generally. “We are convinced, by reading the clear language of the statute, that the legislature crafted an efficient procedure whereby the mandamus court would mimic what courts do in civil suits. The mandamus court decides whether there is a violation and, if so, whether it caused actual damages. Then, the mandamus court may consider whether punitive damages should be awarded under § 19.37(3)” (¶ 8).

    The court also rebuffed the newspaper’s contention that Gov. Doyle was “equitably estopped” from asserting the mandamus argument (see ¶ 13). “Had the newspaper begun a mandamus action the moment the Governor’s office began dragging its feet, it likely could have prevented the outcome that occurred. But instead, the Newspaper waited until after the documents were released and the appointments were made. Our holding does not encourage or condone noncompliance by government officials; it merely encourages timely action by requesters to force timely compliance by government officials and timely public access to records, which, after all, was the intent of the legislature” (¶ 14).


    Hearing-impaired Juror –Haseltine Rule

    State v. Kettner, 2011 WI App 142 (filed 15 Sept. 2011) (ordered published 19 Oct. 2011)

    A jury convicted Kettner of child abuse for spanking his daughter. He admitted spanking her but claimed that the more serious injuries to her buttocks, observed by a nurse, were caused by her rough ride on an ATV, not the spanking. In postconviction motions, he argued that he was entitled to a new trial on grounds that a hearing-impaired juror could not hear every word in the victim’s recorded statement and that the prosecution had violated the Haseltine rule [State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984)] by asking the nurse to vouch for the victim’s credibility.

    The court of appeals affirmed Kettner’s conviction in an opinion written by Judge Vergeront. The central issue concerned the hearing-impaired juror, who testified that, although she could hear all the in-court testimony, she could not hear the videotaped interview of the victim. The court resolved this issue by examining the “sleeping juror” cases. The victim’s recorded statements met the narrow definition of “material” evidence, that is, information that affects decision-making. The “fundamental inquiry” was whether Kettner’s rights to an impartial jury and due process were violated because this juror did not hear certain evidence (see ¶ 27).

    In this case, unlike others, the trial judge made a record of what the juror did hear and what she did not hear (see ¶ 21). The court stated that “when it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent he or she did not receive a fair trial…” (¶ 27).

    The juror’s impairment did not deny Kettner due process. “In summary, Kettner does not make an argument that the juror’s inability to hear particular testimony of S.K. on the videotape resulted in the juror not having significant information about S.K.’s account of the relevant events or about her credibility. Instead, Kettner relies on general propositions in asserting that he is entitled to a new trial on this ground. However, general assertions of materiality or prejudice are not sufficient to establish a violation of the rights to an impartial jury and due process when we are able to see and hear the precise interview the juror saw but did not hear and are able to compare that to the transcript of that witness’s trial testimony, which the juror did hear. Given the consistency of S.K.’s videotaped answers with those she gave in person at trial and in the absence of any factor identified by Kettner that indicates some specific source of prejudice, we conclude that Kettner’s rights to an impartial jury and due process were not violated” (¶ 34).

    The court also held that the nurse’s testimony did not warrant a new trial when he testified to his belief in the victim’s version of events. The court assumed that the testimony violated the Haseltine rule but found, based on a fact-intensive analysis of the record, that any error was harmless.