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    Wisconsin Lawyer
    November 01, 2012

    Top 12 2011-2012 Wisconsin Supreme Court Decisions

    The author highlights one dozen significant decisions issued by the Wisconsin Supreme Court during its 2011-12 term.

    Beth Ermatinger Hanan

    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 11, November 2012

    PillarsIn the author's view, the following cases represent some of the most significant Wisconsin Supreme Court decisions from the 2011-12 term. While the decisions encompass an array of substantive areas of the law, this year many of the highlighted decisions also addressed important procedural issues.


    Finality for Appeal

    Admiral Ins. v. Paper Converting Mach. Co.1

    In 2007, the supreme court renewed its effort to help parties and courts determine whether a judgment or order is final for purposes of appeal.2 That work continues. This term, in Admiral Insurance Co. v. Paper Converting Machine Co., a unanimous court concluded that a summary judgment decision and order was ambiguous as to whether it disposed of the entire matter in litigation as to one or more of the parties because a counterclaim for attorney fees remained pending. Given that ambiguity, the court favored preserving appellate jurisdiction. Addressing the merits, the supreme court held that Admiral's oral funding agreement with its insured to contribute toward a settlement was enforceable; the insured, PCMC, was not unjustly enriched by the funding agreement; and Admiral did not make a mistake of fact that voided the agreement.

    In Admiral, a factory worker, Young, was injured on a machine. She sued the machine manufacturer, Paper Converting Machine Co. (PCMC), which was self-insured at that time. Several months later, PCMC was acquired, and it then purchased additional insurance, including a claims-made policy from Admiral and an excess policy from Chubb. During the underwriting process, PCMC disclosed its knowledge of Young's accident. When Young later sued PCMC, the company notified Admiral, which told PCMC it had been monitoring the claim and determined there was exposure to its policy.3 During mediation and settlement negotiations, Admiral entered into a funding agreement with PCMC to contribute its $2 million policy limits. But after Young and PCMC agreed to settle for $3.5 million, Admiral declined to sign the agreement, asserting that there was no coverage for Young's claim under the known-claims exclusion. Ultimately, Admiral paid the $2 million limits, but it then sued PCMC to seek a no-coverage declaration and reimbursement of its payment.

    On March 26, 2009, the circuit court entered a decision and order concluding that the oral funding and settlement agreement was enforceable and denying the insurers' motions for judgment, stating: "The court grants the summary judgment motion in favor of PCMC. The court hereby orders this case dismissed." Afterward, the parties agreed to delay entry of a final judgment because PCMC wanted to pursue its counterclaim for attorney fees, a claim not addressed in the March 26 order.4 PCMC ultimately did not pursue this claim. On July 8, 2009, the circuit court entered judgment, stating, "This is a final judgment for purposes of appeal."

    Admiral filed an appeal on Aug. 12, 2009, and in the course of affirming, the court of appeals questioned the timeliness of the appeal, given the apparent finality of the March 26 decision and order. Nonetheless, the court of appeals considered that PCMC had waived any objection to jurisdiction by failing to appeal the timeliness issue. The next day, however, the court of appeals withdrew its opinion and later explained, "a court must raise the question of subject matter jurisdiction even if the parties do not, and subject matter jurisdiction cannot be obtained by a party's waiver or consent."5 The court dismissed the appeal as untimely and denied Admiral's motion for reconsideration.

    On review, the supreme court referred to its twin decisions in 2007 that addressed finality for purposes of appeal. Section 808.03(1) of the Wisconsin Statutes provides that a final judgment or order is one that disposes of the entire matter in litigation as to one or more of the parties. In Wamboldt, the court had explained that a memorandum decision in which a court decided all the substantive legal issues, but did not explicitly dispose of the entire matter in litigation, was not final for purposes of appeal. If the document's language only arguably disposed of the entire matter, that is, if there was some ambiguity as to whether the entire matter as to one or more parties was resolved, then the default approach was to preserve the appeal. For instance, the Tyler court held that a statement that "the claims of plaintiff are dismissed with prejudice" was an express statement disposing of the entire matter.6 To head off similar disputes, Wamboldt also required that final orders and final judgments expressly state they are final for purposes of appeal.

    In Admiral, although the circuit court's March 2009 decision did not contain the Wamboldt finality language, it appeared to fully resolve the matter, and long-standing case law has held that pendency of a claim for attorney fees under a fee-shifting statute does not affect finality of a judgment.

    But the record was unclear as to whether PCMC's fee claim was based on a fee-shifting statute or on other authority. The court of appeals had denied Admiral's motion to supplement the record concerning PCMC's counterclaim, and the motion was not renewed in the supreme court. Nonetheless, given the existing uncertainty, the supreme court applied the default rule of Wamboldt and reinforced an increasingly strong preference that appeals be considered on their merits.

    Validity of Hospital Medicaid Lien Against Patient's Judgment or Settlement

    Gister v. American Family Mut. Ins. Co.7

    As a result of this decision, a charitable hospital may file a lien for its service charges against the proceeds of a potential settlement or judgment when the plaintiff-patient is Medicaid-eligible. The charitable hospital also may potentially receive its full reasonable charges without the costs of joining suit as a subrogated party or being subject to a "make-whole" determination and potential reduction in recovery.

    St. Joseph's Hospital treated four members of the Gister family who were injured in an auto accident. The family members were all eligible for Medicaid, but the hospital billed Medicaid only for one child's care; the hospital filed liens under the hospital lien statute, Wis. Stat. section 779.80, for reimbursement for the care of the three other family members. The statute allows a hospital to maintain a lien for care to anyone who has been injured as a result of the tortious act of another, and the reasonable and necessary charges reflected by the lien may be satisfied by any judgment or settlement proceeds the treated person obtains.8 St. Joseph's and the Gisters filed competing motions for declaratory judgment as to the validity and enforceability of the liens.

    The circuit court held the liens were enforceable under Wisconsin Administrative Code section DHS 106.03(8), and that they were not prohibited under Wis. Stat. section 49.49(3m) as "direct charges upon a patient in lieu of obtaining payment from Medicaid." The court of appeals reversed, applying Dorr v. Sacred Heart Hospital9 to hold that a lien on a potential settlement between a tortfeasor and a patient is essentially a lien against the patient, and requires a debt owed by the patient to the hospital. According to the court of appeals, here Medicaid, not the Gisters, held the debt.10

    On review, the supreme court set out to harmonize the applicable statutes and regulations in determining whether the hospital liens were barred. First, the court considered whether Wis. Stat. section 49.49(3m)(a) barred the liens. It looked to federal law on Medicaid and its provisions for collection of medical expenses when there is potential third-party liability. Under 42 U.S.C. § 1396a(25)(C), a hospital may not seek to collect money from Medicaid-eligible persons when third parties are obliged to pay an amount at least equal to the amount that would be paid by Medicaid for the service. The court viewed the hospital liens here to be an effort to "collect from" the patients.11 Other federal decisions provided guidance as to whether these collection efforts are barred by 42 U.S.C. § 1396a(25)(C). A Fifth Circuit decision held that the bar is triggered only when the hospital first bills Medicaid.12 Here, St. Joseph's did not bill Medicaid for the three Gisters' care but instead filed the liens against a settlement or judgment.

    Next, the supreme court considered the third-party liability provision of Wis. Stat. section 49.49(3m)(a), which comes into play when a hospital elects not to bill Medicaid. The statute prohibits charges that are "direct" and imposed "in lieu of" charges paid by Medicaid. To interpret the term direct, the court consulted a dictionary and applied the definition "to proceed in a straight course or line, without deviating or swerving" to determine whether the lien was a direct charge. Although the liens may allow a direct recourse to various actions or proceedings undertaken by the patient, the hospital had not sent a bill to Gister, and thus the lien was not a direct recourse to the patient herself.13

    The court said that accepting the liens' validity best harmonized section 49.49(3m)(a) with the applicable administrative code provisions. Section DHS 106.03(8)of the Wisconsin Administrative Code allows hospitals either to bill Medicaid or to join personal-injury suits when liability may be contested. The court saw no problematic difference between permitting St. Joseph's to pursue the funds by joining the lawsuit versus allowing it to pursue the funds by filing a lien, because the money sought originates from the same source (the tortfeasor's insurer,) goes to the same recipients (the Gisters and St. Joseph's), and is designated for the same purpose (to satisfy medical expenses the Gisters incurred after the accident).14

    Finally, the court distinguished the Dorr holding and concluded it did not bar the hospital liens. In Dorr, the patient owed a debt to the hospital, but the fact that the patient's health maintenance organization (HMO) had a contract with the hospital, combined with the HMO immunity statute, nullified the debt and rendered the lien invalid.15 The Gister court explained that here the plaintiffs were not closely analogous to the HMO patients in Dorr, because even though section 49.49(3m) prevented the hospital from imposing direct charges on the Gisters, it did not mean the Gisters owed no debt to St. Joseph's.

    To bolster the distinction, the supreme court expressly limited some broad language from Dorr. Although the general rule is that a lien presupposes a debt, and also that medical services rendered give rise to a debt, those propositions are in tension when a hospital files a lien on potential settlements between patients and tortfeasors in situations in which another entity may be responsible for the medical bill. The court surveyed other jurisdictions and early Wisconsin worker compensation cases, discerning the principle that when there is uncertainty in the law as to who will pay a hospital bill, the law should not negate the patient's debt for purposes of the hospital lien.16

    Accordingly, the Gister court held that a patient's debt to a hospital is extinguished for purposes of a hospital lien on the settlement only if the hospital is legally barred from ever billing the patient directly or indirectly. Here, St. Joseph's liens should not have been invalidated solely because Medicaid ultimately may have paid the charges.17 Reconciling the apparent conflicts this way, the court held that Dorr cannot be used to determine whether the Gisters owed a debt to St. Joseph's.

    Justice Bradley dissented, reading the Wisconsin Medicaid statute as limiting a service provider either to billing Medicaid or attempting to recover its charges by joining the patient's personal-injury suit. The dissent read the statutes and regulations together to mean that Medicaid recipients are not liable for the cost of services covered by Medicaid, much like the HMO contract and immunity statute discussed in Dorr. The dissent regarded filing a lien on future settlement money as distinctly different from participating in a lawsuit, the former being a route that avoids adjustments like the "made-whole" doctrine. Chief Justice Abrahamson and Justice Crooks joined the dissent.

    Pollution-Exclusion Clause Interpretation

    Hirschhorn v. Auto-Owners Ins. Co.18

    Before 2012, the Wisconsin Supreme Court last interpreted the pollution-exclusion clause of an insurance policy in 1999. In Peace v. Northwestern National Insurance,19 the court concluded that lead-based paint chips were an irritant or contaminant, and that a reasonable insured would consider lead in paint to be a pollutant. In this term's case, Hirschhorn, the asserted pollutants at issue were bat guano and odors arising from it. The plaintiffs' vacation home in northern Wisconsin had been rendered uninhabitable and unsalable due to the accumulation of bat guano within the home's siding and walls. After their insurer refused to cover replacement of the home, the homeowners sued for breach of contract and bad faith. The insurer concluded that the bat excrement and urine and the accompanying odor were, under the terms of the policy, "waste products" and thus "pollutants," for which there was no coverage. The insurer also determined that the accumulation of bat guano was "not sudden and accidental."

    The circuit court granted summary judgment to the insurer, but the court of appeals reversed. Deeming the pollution-exclusion clause ambiguous, the court of appeals construed the policy in favor of coverage. The policy excluded from coverage any "loss resulting directly or indirectly from ... discharge, release, escape, seepage, migration or dispersal of pollutants," and defined "pollutants" as any "solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gases and waste. Waste includes materials to be recycled, reconditioned or reclaimed."

    In Brief: Top 12 2011-2012 Wisconsin Supreme Court Decisions


    1. Finality for Appeal

    Admiral Ins. v. Paper Converting Mach. Co.

    Issue: Was a summary judgment order final, for purposes of invoking the right to appeal, in a situation in which a counterclaim for attorney fees remained pending?

    Holding: Because the summary judgment order was unclear as to whether the circuit court had disposed of the entire matter, the order was not final for purposes of appeal.

    2. Validity of Hospital Medicaid Lien Against Patient's Judgment or Settlement

    Gister v. American Family Mut. Ins. Co.

    Issue: In situations involving patients who are unable to pay all or part of their bills, do Wisconsin statutes and regulations limit hospitals to obtaining reimbursement either by billing Medicaid or attempting to join the patients' personal-injury lawsuits?

    Holding: Hospitals are not limited to these two methods of reimbursement; they may instead attempt to obtain reimbursement by filing liens on the potential proceeds of settlements or judgments awarded to the plaintiff-patients.

    3. Pollution-Exclusion Clause Interpretation

    Hirschhorn v. Auto-Owners Ins. Co.

    Issue: Was an insurance company justified in refusing to cover the cost of replacing the claimants' home, which was rendered uninhabitable by the accumulation of bat guano within the home?

    Holding: The guano and the manner by which it appeared in the home caused it to be considered a pollutant under the insurance policy's terms and thus within the policy's pollution-exclusion clause, which barred coverage.

    4. Fundamentally Defective Service of Complaint

    Johnson v. Cintas Corp. No. 2

    Issue: Did a plaintiff's failure to provide the exact name of a corporation in a summons and complaint cause the court to lack jurisdiction over the corporation?

    Holding: Service of the summons and complaint was fundamentally defective because the plaintiff did not name the legal entity that it was attempting to bring into the suit.

    5. Transfers to Tribal Court

    Kroner v. Oneida Seven Generations Corp.

    Issue: Did a circuit court erroneously transfer to tribal court a civil suit brought by a nonmember of a tribe against an entity owned by the tribe?

    Holding: Retroactive application of the statute permitting transfer to tribal court in cases in which state and tribal jurisdiction overlap was inappropriate in this situation, and so the circuit court's transfer of the suit was in error.

    6. Absence of Reservation-of-Rights Letter

    Maxwell v. Hartford Union Sch. Dist.

    Issue: Does an insurer that provides a defense to an insured lose its right to later deny coverage if it does not timely issue a reservation-of-rights letter?

    Holding: Providing a defense and failing to issue a reservation of rights do not estop or waive the insurer's ability to later assert a defense of lack of coverage.

    7. Extent of Fees for Copying of Public Records

    Milwaukee Journal Sentinel v. City of Milwaukee

    Issue: May a governmental authority impose a fee, reflecting the costs of redacting confidential information, when an individual or entity requests the release of public records?

    Holding: The four categories of tasks for which governmental authorities may charge fees in the context of public records requests do not include tasks related to removing confidential information.

    8. Judicial Estoppel and Chapter 30 Forfeiture Actions

    State v. Ryan

    Issue: Did the circuit court err when it found the defendant was judicially estopped from denying ownership of a barge, and was it error to grant summary judgment in a forfeiture action?

    Holding: The granting of summary judgment here was reversible error, for two reasons: summary judgment is not available in forfeiture actions for violations of Wis. Stat. chapter 30, and even if it were available under the statutes, judicial estoppel did not apply because the defendant's earlier statements were not clearly inconsistent with his current position of nonownership.


    9. Motion to Withdraw Guilty Plea in Absence of Transcript

    State v. Negrete

    Issue: Was the defendant entitled to an evidentiary hearing on his motion to withdraw his guilty plea in this situation, in which there was no transcript of the plea hearing?

    Holding: The defendant was not entitled to an evidentiary hearing because his affidavit did not allege sufficient facts that, if true, would entitle him to withdraw his plea.

    10. Presence at Plea Hearing via Videoconferencing

    State v. Soto

    Issue: Was a defendant's right to be present at a plea hearing at which judgment is pronounced violated when the judge conducting the hearing was in a separate location from the defendant and the hearing was conducted using videoconferencing technology?

    Holding: The court's colloquy with the defendant was sufficient to establish that the defendant knowingly, intelligently, and voluntarily consented to the use of videoconferencing.

    11. Participation in Juvenile Court Waiver Investigation

    State v. Tyler T.

    Issue: Was a circuit court's decision to waive juvenile court jurisdiction of a minor an error because of alleged ex parte communications between the prosecutor and the individuals who prepared a waiver investigation report?

    Holding: County social services agencies may contact both the prosecutor and the juvenile when gathering information for waiver reports, and, although some amount of contact might be too much, in this case, the prosecutor's attendance at an agency meeting did not cross the line into impermissible contact and the waiver decision was not in error.

    12. Procedure for Sanctioning Appendix Rules Violations

    State ex rel. Nielsen

    Issue: Is the procedure for finding a violation of the appellate appendix content and certification rules as part of a decision on the merits adequate?

    Holding: The supreme court suggested that the court of appeals use a separate show-cause procedure before imposing a sanction for violation of these appellate rules.

    The court of appeals held that although "waste" could include bat excrement, a reasonable insured would not consider the substance to have "discharged, released, escaped, seeped, migrated or dispersed" as provided by the exclusion.

    On review, the supreme court first concluded that bat guano unambiguously falls within the term pollutants as defined by the policy. The guano is or threatens to be a solid, liquid, or gaseous irritant or contaminant, susceptible of causing people who live near large quantities of it to become ill, develop rashes, or increase asthma attacks. Supporting that conclusion is the fact that the policy lists waste as a contaminant or irritant. Although the court of appeals reasoned that waste does not necessarily call to mind feces and urine, particularly given the other examples of irritants and contaminants set out in the policy ("smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, [and] gases"), the supreme court consulted dictionary definitions of waste, feces, and urine and consequently was unwilling to limit the pollution-exclusion clause to industrial-type pollutants.20 The supreme court viewed bat guano to be a unique and largely undesirable substance commonly understood to be harmful, citing Peace.

    Next, the court considered whether the alleged loss resulted from a particular act recognized by the policy – the "discharge, release, escape, seepage, migration or dispersal" of the bat guano. The policy did not define any of those methods of dissemination. But in Peace, the court had explained that discharge, dispersal, and so on, "describe the entire range of actions by which something moves from a contained condition to an uncontained condition." The Hirschhorns' complaint alleged that the drapes, carpets, and fabrics of the home were rendered unusable as a result of absorption of the bat guano odor. Essentially, they had alleged that the bat guano separated from its once-contained location between the home's siding and walls and entered the air, only to be absorbed by the furnishings within the home.

    Two justices dissented. In their view, a reading of the policy term waste in context with the words around it (reconditioned, repaired, recycled) leads to the conclusion that a reasonable insured would not consider waste to include bat excrement.

    Fundamentally Defective Service of Complaint

    Johnson v. Cintas Corp. No. 221

    Suing a rose by any other name ... might not confer jurisdiction on the circuit court. In this case, the supreme court held that the circuit court lacked personal jurisdiction over the defendant Cintas No. 2 because service of the summons and complaint was fundamentally defective. The pleadings had named Cintas Corp., the parent company of Cintas No. 2, but had not named the latter. When Cintas No. 2 did not respond to the complaint, the circuit court entered a default judgment. The court of appeals reversed, and the supreme court affirmed.

    The plaintiff (Johnson) was injured while a passenger in a car he owned, but which, he argued, was covered under auto liability insurance provided by Cintas, his employer. When the insurer denied coverage, Johnson alleged breach of contract and bad faith. Johnson served his summons and complaint on the agent for Cintas No. 2, a wholly owned subsidiary of the named defendant, Cintas. Cintas is not registered or licensed to do business in Wisconsin and so it did not have a registered agent for service of process in this state.22 When neither Cintas nor Cintas No. 2 answered the complaint, Johnson moved for default judgment against Cintas, serving a copy of that motion on the registered agent for Cintas No. 2.

    Counsel for Cintas then moved to dismiss the default judgment motion, based in part on a lack of personal jurisdiction. Counsel for Johnson and for Cintas attended the hearing, at which Johnson moved to amend his summons and complaint to name Cintas No. 2. The circuit court granted the motion to amend and then entered default judgment against Cintas No. 2. Cintas No. 2 moved to intervene and to vacate the default judgment under Wis. Stat. section 806.07.23 Essentially reversing itself, the circuit court found that Cintas No. 2's failure to answer was due to excusable neglect, and the court vacated the default judgment.

    One year later, Johnson sought reconsideration, asserting that Cintas No. 2 had held itself out as Cintas, and that the Cintas No. 2 registered agent had immediately forwarded the summons and complaint to Cintas No. 2. Johnson argued that Cintas No. 2 therefore had not been misled by the original pleadings and that the default judgment was not warranted. On these grounds, the circuit court reversed course again, finding that Cintas No. 2 was not a "new party" and that the company had caused Johnson to misname the defendant in his complaint by virtue of the business name Cintas No. 2 had chosen.24

    The court of appeals disagreed, concluding that because the original summons and complaint did not name Cintas No. 2 as required by Wis. Stat. sections 801.02(1) and 801.09(1), personal jurisdiction was lacking.

    On review, the supreme court explained that a proper summons provides the due process element of notice and confers personal jurisdiction on the circuit court. Strict compliance with statutory service rules is necessary for that jurisdiction, and "actual notice" by itself is insufficient. The court explicated the differences between fundamentally deficient service, which does not afford personal jurisdiction, and technically deficient service, which can result in personal jurisdiction if the defect did not prejudice the defendant.25 The line between a fundamental defect and a technical defect can be a fine one.

    The court reviewed the analyses in Bulik v. Arrow Realty Inc. of Racine26 and Hoesley v. La Crosse VFW Chapter.27 In Bulik, the plaintiff failed to name defendant Arrow in the summons and discussed Arrow only in the body of the complaint. Although Arrow had been served with the summons and complaint, the court of appeals concluded that personal jurisdiction was lacking under section 801.09(1) for failure to name Arrow in the summons. In contrast, in Hoesley, the plaintiff had incorrectly named the defendant in the summons and complaint, creating only a technical defect but preserving personal jurisdiction. There, the court of appeals reasoned that a mere misnomer in the summons and complaint may be corrected by amendment at any stage of the lawsuit. Importantly, Hoesley's mistake did not bring a new party into the action. The court also discussed Parks v. West Side Railway Co.,28 in which the plaintiff named defendant West Side Railway Co., but should have named West Side Railroad Co. The supreme court regarded it as a slight mistake in the name rather than the discharge of one party and substitution of another. 

    With this case law in mind, the Johnson court held that the circuit court should not have reconsidered its order vacating the default judgment against Cintas No. 2, because the default judgment was void.29 By filing and serving a summons and complaint that did not name Cintas No. 2, the plaintiff created a fundamental defect that precluded jurisdiction over the defendant, regardless of prejudice. Cintas and Cintas No. 2 are independent legal entities. The court concluded that Hoesley's distinction between mistakes that bring new parties into the action (which the plaintiff attempted here) and misnomers as to the one entity already part of the action supported its conclusion. The fact that the plaintiff served Cintas No. 2 did not resolve the error of naming only Cintas, a separate legal entity, in the summons and complaint. Vague designation is not fair notice.30

    Justice Bradley, joined by Chief Justice Abrahamson, dissented, asserting that the plaintiff's only error was a misnomer, that the result was incongruent with West Side Railway, and that the Cintas holding transforms corporate separateness into a sword, allowing companies to use the name of a related entity as a trade name and, if sued under that trade name, to avoid jurisdiction and liability. Justice Prosser did not participate in the case.

    Transfers to Tribal Court

    Kroner v. Oneida Seven Generations Corp.31

    The question of how to determine whether a suit involving a tribe or tribe-owned entity should proceed in state or tribal court continues its bumpy evolution in Wisconsin. In 2000, the supreme court unanimously established a jurisdictional protocol for circuit courts to apply in determining whether state court jurisdiction should be stayed when state and tribal jurisdiction overlap.32 In 2003, a majority concurrence articulated 13 comity factors by which to make the jurisdictional-allocation decision.33 Five years later, a divided supreme court adopted a rule to enable circuit courts to use their discretion to transfer civil actions to Wisconsin tribal courts, when appropriate.34 That rule is embodied in Wis. Stat. (Rule) section 801.54, and provides in part as follows:

    "Discretionary transfer. When a civil action is brought in the circuit court of any county of this state, and when, under the laws of the United States, a tribal court has concurrent jurisdiction of the matter in controversy, the circuit court may, on its own motion or the motion of any party and after notice and hearing on the record on the issue of the transfer, cause such action to be transferred to the tribal court. The circuit court must first make a threshold determination that concurrent jurisdiction exists."

    In the 2011-12 term, the court considered whether a Brown County circuit court erroneously applied section 801.54 when it transferred to tribal court a civil suit brought by a non-tribe member against a tribe-owned entity. Somewhat like the circumstances in the Teague cases, the Kroner plaintiff was a non-tribe member whose executive position was terminated by a real estate development and holding company solely owned by the Oneida Nation. In 2008, the plaintiff brought wrongful discharge and breach-of-employment claims against the company in state court. Almost two years later, the defendant company asked for transfer of the action to tribal court under section 801.54 and, despite Kroner's objection, the circuit court authorized the transfer. The statute had become effective on Jan. 1, 2009.35

    A unified view on the proper analysis for tribal court/state court jurisdictional allocation remains elusive. Justice Crooks authored the lead opinion on behalf of himself, Chief Justice Abrahamson, and Justice Bradley. Justice Prosser wrote a concurrence, and Justice Roggensack separately concurred, joined by Justice Ziegler and Justice Gableman. In sum, four justices voted to prohibit a retroactive application of the statute and subsequent transfer of the case to the Oneida Tribal Court and instead to require the circuit court to proceed on the merits of the suit.36 Their separate analyses are summarized below.

    The lead opinion explained that a circuit court must first determine whether there is concurrent jurisdiction and then apply the statutory factors to ascertain whether transfer is warranted. Here, however, the circuit court erred in both aspects. The court did not set forth the facts or law to support a determination of concurrent jurisdiction, and it also failed to consider several of the factors relevant to appropriateness of transfer.37 Given that Kroner filed his suit before the effective date of section 801.54, Justice Crooks' opinion also considered whether the rule could be applied retroactively. Although procedural rules normally operate retroactively, there are exceptions when the new rule diminishes a contract or disturbs vested rights.38 Because there was little evidence in the record relevant to determining whether application of section 801.54 would affect a vested or contractual right or impose an unreasonable burden, the lead opinion concluded that remand was necessary for the circuit court to make a determination as to the retroactive application of the transfer rule.

    Justice Prosser's concurrence detailed some additional history, noting that there had been no pre-adoption discussion of whether the transfer rule could be applied retroactively. In Justice Prosser's view, the court intended that the rule have prospective effect only, thus permitting the court to avoid, at least in this case, in-depth consideration of multiple questions of constitutional and statutory dimension. Although the transfer rule has worked well in most cases, Justice Prosser concluded that prospective-only application would avoid circumstances that could undermine progress in state-tribal relations, and allow further opportunity to improve certain aspects of the rule.39

    Endorsers of the second concurrence essentially maintained their original objection to the rule. Although the rule was not explicit on this point, they viewed the threshold determination to be "whether the transfer to tribal court would abridge, enlarge or modify the substantive rights of the litigants." Justice Roggensack's concurrence proceeded to make that determination, and concluded that retroactive application here violated Kroner's substantive constitutional rights, including his right of access to the courts.40 An involuntary transfer to tribal court would terminate Kroner's substantive right to a jury trial, and to appellate review of the tribal court decision, both substantive rights that vest in state court, but which are not available in the Oneida Tribal Judicial System.41

    Absence of Reservation-of-Rights Letter

    Maxwell v. Hartford Union Sch. Dist.42

    In Maxwell, the supreme court may have created new uncertainty for insureds as to whether their insurer will cover a particular claim. The supreme court held that an insurer's failure to issue a reservation-of-rights letter is not sufficient to defeat, by waiver or estoppel, a coverage clause in an insurance contract that otherwise would justify a denial of coverage.

    A school district terminated an administrator's employment. After the administrator (Maxwell) sued, the district's general counsel forwarded her summons and complaint to Aegis, the general administrator for Community Insurance Corp. (CIC). CIC assigned an attorney (Levy) to represent the district. Several months later, the circuit court granted partial summary judgment to Maxwell, awarding her more than $100,000. The district's general counsel withdrew from the suit and emailed Levy and the CIC administrator, asserting that because CIC had furnished a defense without issuing a reservation-of-rights letter, CIC could not deny coverage for any damages awarded. Although CIC denied that the policy provided coverage for damages owed under the plaintiff's performance contract or for a settlement for lost wages or benefits, it did continue to provide a defense.

    The district then filed a third-party complaint against CIC alleging bad faith, entitlement to coverage given the lack of a reservation-of-rights letter, and prejudice. The circuit court denied the district's later motion for summary judgment, finding that there was no coverage for the salary and benefit claims and that CIC's conduct could not create coverage for those claims. The court of appeals reversed. Although acknowledging generally that coverage cannot be created by waiver or estoppel, the appellate court ruled that when an insurer agrees to defend without a reservation of rights and actively defends the insured until there is a final adverse judgment, it is estopped from declining coverage at that point.43

    The supreme court reversed the court of appeals. First, it noted that the CIC policy expressly excludes coverage for any award or settlement that could be deemed "compensation for loss of salary or fringe benefits of your employees."44 Then, it traced a century of case law describing the general rule that estoppel or waiver based on the insurer's conduct will not create coverage, in contrast to a forfeiture of rights already existing in the contract.45 To do otherwise would create a new contract providing coverage for which no premium has been paid. The court acknowledged that although providing a defense does not equate to estoppel or waiver of a coverage limitation, providing and fully controlling a defense might establish waiver or estoppel of a forfeiture clause when the insurer fails to issue a reservation of rights.46

    The supreme court also distinguished authority on which Maxwell and the court of appeals relied. First, it limited the instructive value of Pouwels v. Cheese Makers Mutual Casualty Co.47 because that case failed to discuss long-standing decisions precluding waiver or estoppel from creating coverage. Second, it endorsed a critique that Pouwels' finding of waiver was not necessary to its decision.48 Third, it distinguished between allowing coverage created by reformation, that is, reflecting the parties' actual intent, and allowing coverage created by waiver or estoppel in contradiction of actual intent.

    The court explained two exceptions involving an insurer's duty to defend and its duty to act in good faith toward its insureds.49 When an insurer breaches a duty to defend, the insurer is liable for all damages that result from that breach, including the amount of judgment or settlement, even if potentially beyond policy limits. Such a breach of contract is distinct from waiver or estoppel. Similarly, if the insurer breaches its duty of good faith, it is liable in tort for damages, but those damages are not an expansion of coverage under the policy via waiver or estoppel.

    Justice Crooks dissented, joined by Chief Justice Abrahamson and Justice Bradley. The dissent viewed the real issue to be more limited, based on the fact that CIC had controlled the district's defense up to the point of the adverse judgment, and only then contested coverage. According to the dissent, when the insurer failed to enter into a nonwaiver agreement, seek bifurcation for a coverage determination, or provide a reservation-of-rights letter, it had not preserved any basis to challenge coverage. The dissent also viewed the waiver/forfeiture distinction emphasized by the majority to be undercut by statements found in other Wisconsin decisions, leading to a misfocus on wrongful expansion of coverage instead of a focus on a just remedy for an insurer's prejudicial actions.50

    Extent of Fees for Copying of Public Records

    Milwaukee Journal Sentinel v. City of Milwaukee51

    Faced with competing concerns of public-records accessibility and appropriate taxpayer burden, the court hewed closely to the letter of the Public Records Law, Wis. Stat. sections 19.31-39, to conclude that a governmental authority may not impose a fee on a requester of public records for the actual, necessary, and direct costs incurred by the authority in deleting nondisclosable information included within the responsive records. Such tasks were not among the four enumerated tasks for which the law permits the authority to charge a fee.

    Milwaukee Journal Sentinel reporters (the newspaper) sought records from the Milwaukee Police Department, including computer-aided-dispatch records and related incident reports for numerous crime categories for two weeks in 2010. The city identified more than 3,000 responsive records and asked for $2,000 in advance to locate and copy the records. The newspaper modified its requests and paid a minimal fee. Some additional records were provided without charge.

    Then the newspaper asked for 100 more reports, and the city responded that it would charge the newspaper for its "actual costs of complying" with the request. Those costs included deleting nondisclosable information, an effort the city estimated would cost $600 in staff time. The newspaper requested additional dispatch and incident records for all sexual assaults in a given year but ultimately narrowed its request to only incident summaries from each report. For those records, the city asked for an advance payment of more than $3,500 to cover copying and staff time.

    The newspaper refused to pay and sued the city to compel release of the records without prepayment of fees.52 The circuit court agreed that the city could request payment for the actual staff time needed to separate confidential information contained within the requested public records.

    The supreme court took the case on bypass. In her lead opinion, Chief Justice Abrahamson recounted the state's commitment to open transparent government, as expressed in the Public Records Law.53 She also noted that charging high fees for public records could chill such requests. Interpreting the law in light of the text and declaration of policy, and informed by prior appellate interpretations, the court held that the city may not charge the newspaper for the costs, including staff time, of redacting information.

    The statute identifies four categories of tasks for which an authority may charge fees: 1) reproducing and transcribing, 2) photographing and photographic processing, 3) locating records, and 4) mailing or shipping copies. The fees charged may not exceed the "actual, necessary and direct" cost of performing the task.54 The court disagreed with the city's argument that redacting nondisclosable information was an act that fell within "locating" or "reproduction" of records under the fee provisions. Locating a record occurs before certain information appearing on it can be redacted; reproduction occurs after the appropriate redactions are performed. The court also looked to attorney general opinions as particularly enlightening, because of the attorney general's role to advise on applicability of the Public Records Law. A 1983 attorney general opinion concluded that the statute did not authorize fees for separation costs.55

    Justice Prosser concurred, to express his concern that governments have little recourse when dealing with large, demanding records requests, which sometimes are made to harass public officials or units of government.56 Justice Roggensack's concurrence, the majority opinion on the policy issue,57 discussed the potential negative effects of strict application of the Public Records Law. The concurrence expressly urged the legislature to consider changes to the statutory cost structure. Justice Roggensack noted that taxpayers – instead of the requesters – will be required to pay for the statutorily required separation of voluminous public records requests, and that some public records requests may go unmet due to a lack of personnel to separate out the confidential portions of the records.

    Judicial Estoppel and Chapter 30 Forfeiture Actions

    State v. Ryan58

    Ryan Enterprises stored a barge along the Menomonee River in Milwaukee. When the Wisconsin Department of Transportation (DOT) sought to exercise eminent domain authority on the adjacent real property, Ryan's lawyer completed a relocation business questionnaire, stating that Basil E. Ryan, d/b/a Ryan Marina, "provided storage of barge and boats" and "currently, single barge is stored by owner (Ryan)." Ryan and his companies failed to remove the property timely, and the state then obtained a writ of assistance, providing that the personal property, plus the barge, be removed from the premises before Aug. 1, 2005. Ryan vacated the land but did not remove the barge. Months later, the barge partially sank and became stuck in the river bed. The Department of Natural Resources then sent Ryan a notice of violation of statutes protecting navigable waters.

    Ryan responded with a letter in which he alleged that the barge sank as a result of the DOT's negligence. But he also offered, "with full reservation of the rights of the barge owner," to remove the barge and bill the state. No removal occurred, so the state commenced a forfeiture action under Wis. Stat. chapter 30.

    The state may start a chapter 30 forfeiture action using either a citation or a summons and complaint. Chapter 23 of the Wisconsin Statutes sets out the procedures available for chapter 30 forfeitures. If the state serves a summons and complaint, the summons must direct and require the defendant to appear in a specified court on a particular date.59 However, the state has a practice of deviating from that procedure, and so it allowed Ryan to waive his appearance and file an answer to the complaint.

    After Ryan answered, the state moved for summary judgment, asserting that Ryan owned the barge, and that it was an unpermitted structure on the river bed. Ryan disputed ownership and alleged he had merely maintained lien rights for unpaid storage fees for the barge. The state countered that Ryan's control of the barge was sufficient for forfeiture purposes and any argument that Ryan did not own the barge was prevented by judicial estoppel, based on Ryan's lawyer's statements in the relocation questionnaire. The circuit court agreed that Ryan was judicially estopped to deny ownership and control. On appeal, Ryan unsuccessfully argued there was no basis for judicial estoppel and also asserted that summary judgment is not permitted in a forfeiture action for violations of chapter 30.

    The supreme court explained the judicial estoppel doctrine. The doctrine prevents a party from successfully asserting one position in a legal proceeding, and later asserting an inconsistent position. The doctrine applies when 1) the later position is clearly inconsistent with the earlier position, 2) the facts at issue are the same in both cases, and 3) the party to be estopped has convinced the first court to adopt its position.60 The first and third elements were in dispute here.

    The court concluded that Ryan's letter offering to remove the barge for a fee created no basis for judicial estoppel. The order for writ had issued a year earlier, so it played no role in the circuit court's determination to order removal. The statement in the relocation form was not clearly inconsistent with Ryan's current position of nonownership. That statement, "currently, single barge is stored by owner (Ryan)" was ambiguous, because the word "owner" could have referred to the barge owner, the business owner, or the owner of the real property subject to the eminent domain proceedings. Moreover, the relocation form did not convince the circuit court to adopt Ryan's position, because it was directed to the DOT long before writ proceedings had begun. There was no evidence that ownership of the barge was even at issue in the writ proceeding. Consequently, the supreme court held that judicial estoppel did not apply.61

    Moving to the issue of whether summary judgment is available in forfeiture actions under chapter 30, the court acknowledged that some earlier forfeiture actions had been resolved by summary judgment, but the procedural methodology was not at issue in those cases. Section 801.01(2) permits summary judgment "in all civil actions and special proceedings ... except where different procedure is prescribed by statute or rule." In State v. Schneck, the court noted that summary judgment was not expressly prohibited in chapter 345 traffic forfeiture proceedings, but nothing in chapter 345 contemplated the kind of responsive pleading that would enable a circuit court to perform even the rudimentary steps of summary judgment methodology.62 The procedures in chapter 23 are uniquely designed for prosecuting violations of the navigable waters statutes and are difficult to reconcile with the summary judgment requirements. 

    Both issuance of a citation under section 23.54 and issuance of a summons and complaint under section 23.55 require a personal appearance as the defendant's first response. The defendant may enter a plea or ask for a trial, but no pretrial discovery is available. Chapter 23 does not expressly permit summary judgment.63 Although the state urged that summary judgment is consistent with the issuance of a summons and complaint under section 23.55, the court distinguished that the forfeiture proceeding is not a complaint and answer format. Even though Ryan had (and apparently other forfeiture defendants have) filed written answers in lieu of an appearance, that practice does not support grafting a summary judgment methodology onto an existing statutory regime that does not include it. In essence, such a practice by the parties imposes burdens on the courts not contemplated by the legislature.

    Justice Ziegler and Justice Gableman concurred with the bulk of the majority opinion and mandate, but would have found that summary judgment is available in forfeiture actions initiated by a summons and complaint. Justice Prosser did not participate.


    Motion to Withdraw Guilty Plea in Absence of Transcript

    State v. Negrete64

    This case involves the standard for review of, and necessary proof for, a motion under Wis. Stat. section 971.08(2) to withdraw a guilty or no-contest plea when the defendant is likely to be deported or otherwise receive adverse action from United States immigration authorities and there is no transcript of the plea hearing.

    In 1992, Negrete pleaded guilty to one count of second-degree sexual assault of a person under age 16, and was sentenced to 18 months of probation, with restitution. Since that time, his attorney died and the judge retired. In 2010, Negrete moved to withdraw his plea, alleging that the court had not informed him of the plea's potential immigration consequences, and that he was now subject to deportation. His supporting affidavit stated he did not recall the court or his lawyer telling him of the potential immigration consequences, he did not understand those consequences, and had he known, he would not have entered the plea.

    The state argued against the withdrawal, in part urging that the harmless-error standard in effect in 1992 should apply. The state pointed to a questionnaire Negrete completed for his lawyer in 1992, on which Negrete initialed certain warning language:

    "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest and a finding of guilty by the Court of the offense(s) with which you are charged in the criminal Complaint or Information, may result in deportation, exclusion from admission to this Country or a denial of naturalization under federal law."65

    Negrete's attorney also had signed the questionnaire, reflecting that he discussed and explained the questionnaire to Negrete and Negrete acknowledged his understanding. In light of both the harmless-error standard and the plea questionnaire, the circuit court determined that any failure by the court in 1992 to personally advise Negrete of the plea's deportation consequences was harmless, because Negrete was independently aware of them. The court of appeals affirmed.

    Because a transcript was not available, the supreme court found the usual defective-plea-colloquy analysis under State v. Bangert66 inapplicable. Instead, it applied the manifest-injustice standard of State v. Bentley.67 Accordingly, the court first assessed whether the defendant's motion alleged sufficient material facts that, if true, would entitle him to relief. Under the second Bentley step, if the motion does not allege sufficient facts entitling the defendant to relief, the appellate court reviews the decision to grant or deny the evidentiary hearing under the erroneous-exercise-of-discretion standard.

    Negrete's motion had not alleged sufficient material facts. Section 971.08(2) includes as its first element whether the circuit court has failed to properly advise the defendant of the potential immigration consequences of his plea. Here, because Negrete's affidavit alleged only that he does not recall whether the judge told him of the potential consequences, or that it is possible the judge did not so advise him, sufficient material facts are lacking. Whether the defendant remembers being told the consequences of his plea is not the operative fact for withdrawal; instead, it is whether the judge met the statutory requirement.

    The second element is that the plea "is likely to result in the defendant's deportation" or other adverse immigration action. This allegation provides a causal nexus between the entry of the plea and the federal government's likely institution of certain actions. To satisfy the likelihood of immigration consequences, the court explained, a defendant can allege that the particular consequences are provided by cited federal law, and that because of his or her plea, the federal government has manifested an intent to invoke one of those consequences. Alternatively, the court said, a defendant could submit any federal written notification he or she had received regarding adverse immigration consequences as a result of the plea, or the defendant may describe his or her verbal communications with a federal agent who advised that adverse consequences were likely and were tied to the crime pleaded.68

    The court then reviewed the second element – whether Negrete's plea is likely to result in an adverse immigration consequence. Here, Negrete alleged only the particular offense pleaded, and that he was "the subject of deportation proceedings." Because he failed to cite a particular federal statute, the court concluded that the required nexus between the offense pleaded and an immigration consequence was missing.69

    Two justices dissented. They viewed the majority as having improperly applied the first element by failing to read together the allegations of Negrete's motion and his affidavit and placing too much emphasis on the questionnaire. The dissent asserted that the majority had added several additional pleading requirements regarding the likelihood of adverse immigration consequences and unfairly applied those new terms retroactively.70 Neither of the parties had briefed or argued those additional requirements.

    Presence at Plea Hearing via Videoconferencing

    State v. Soto71

    When technology advances, the law must catch up. In Soto, the supreme court accepted certification to determine whether a defendant's right to be present at his plea hearing was violated when the circuit court conducted the hearing by means of videoconferencing technology and the colloquy to establish that his waiver was knowing, intelligent, and voluntary was quite brief.

    Soto was charged with multiple counts related to conduct he allegedly engaged in against his former girlfriend. He entered into a plea agreement and on the following day appeared in court with his counsel and the district attorney. The judge appeared via videoconferencing from a courtroom in another county. At the start of the plea hearing the court asked a series of questions relating to the acceptability of the use of videoconferencing for the hearing. Soto and his counsel agreed it was acceptable. The court then undertook a detailed colloquy regarding Soto's guilty plea and corresponding waiver of constitutional rights. The court accepted Soto's plea and convicted him of second-degree recklessly endangering safety with a deadly weapon. After Soto was sentenced to 15 years' imprisonment, he sought postconviction relief. Soto asserted that any waiver of his right to challenge the use of videoconferencing was not an intentional relinquishment.72

    Section 971.04(1)(g) of the Wisconsin Statutes provides that a defendant shall be present at, among other things, "any evidentiary hearing"; at the "pronouncement of judgment and the imposition of sentence"; and "at any other proceeding when ordered by the court." Here, judgment was pronounced at the hearing held via videoconferencing. But although the statute requires a defendant to be present, it does not specify the location of the defendant or the judge. Applying a plain-meaning approach, the supreme court concluded that present means the defendant is in a courtroom when the plea is made and judgment pronounced. The court noted that when a plea is taken on a felony, the defendant's presence allows the circuit court to conduct a colloquy to determine whether the factual basis for the plea is sufficient and that the plea is being made knowingly, intelligently, and voluntarily.73

    As long as the court, counsel, and the defendant can see, hear, and speak to each other, the statutory purpose of ascertaining a proper plea is satisfied. With that view, the statutory language does not require that the judge and the defendant be in the same location. But the supreme court also recognized that the state's power to pronounce judgment is more forcefully exercised when the defendant and judge are in the same courtroom. Accordingly, the court held that under section 971.04(1)(g), Soto had a statutory right to be present in the same courtroom as the judge when he tendered his guilty plea.74

    Next, the court considered Wis. Stat. section 885.60, which provides that a criminal defendant "is entitled to be physically present in the courtroom at all critical stages of the proceedings, including ... plea hearings at which a plea of guilty ... will be offered, and sentencing. ..." Ultimately, the court concluded that section 885.60 had no relevance to whether Soto's plea was lawfully accepted during a videoconference plea hearing, because Soto had repeatedly assured the court that the videoconference equipment was working well, he could see, speak to, and hear the judge, and he offered no objection.75

    The fact that the circuit court diligently questioned Soto about the use of the videoconference equipment also established, according to the supreme court, that Soto knowingly, intelligently, and voluntarily waived his right to be present in the same location as the judge.

    To reach this conclusion, the supreme court first distinguished State v. Koopmans,76 in which the court had examined whether a defendant who voluntarily absented herself from a scheduled sentencing hearing could be deemed to have waived her right to be present. Instead of creating a rule that waiver of physical presence is unavailable under section 971.04(1)(g), the court reasoned Koopmans means only that the right to be present cannot be forfeited by mere absence. Waiver, not forfeiture, is the appropriate doctrine under which a criminal defendant may relinquish his or her right to be present in the same courtroom as the presiding judge when judgment is pronounced. The showing necessary to demonstrate waiver depends on the particular right at issue.

    The court explained that when videoconferencing is proposed for a plea hearing at which it is anticipated that judgment will be pronounced, the judge should enter into a colloquy with the defendant that explores the effectiveness of the videoconferencing. The judge should ascertain whether the defendant and the judge are able to see, speak to, and hear each other. The judge also should ascertain whether the defendant knowingly, intelligently, and voluntarily consents to the use of videoconferencing. In making this determination, the Soto court stopped short of prescribing a particular colloquy. Instead, the Soto court said that the sentencing court is required to "ask questions which suggest to the defendant that he or she has the option of refusing to use videoconferencing for a plea hearing at which judgment will be pronounced." Given the lack of a particular prescribed colloquy, cases like Soto may recur.

    Chief Justice Abrahamson wrote a dissent, joined by Justice Bradley and Justice Crooks, critiquing the adequacy of the colloquy, particularly as it affected the pronouncement of judgment.

    Participation in Juvenile Court Waiver Investigation

    State v. Tyler T.77

    As assistant district attorney (ADA) who filed a petition alleging Tyler T. to be delinquent and also sought waiver of juvenile court jurisdiction was allowed to participate in a staff meeting of the county Department of Health and Human Services (DHHS) at which the staff discussed its waiver investigation report for Tyler. Neither Tyler nor his defense counsel was invited to attend the meeting. The circuit court denied Tyler's request to strike the waiver investigation report based on the allegedly improper ex parte communication between the ADA and the DHHS staff, and the supreme court affirmed.

    The state alleged that Tyler had been party to an armed robbery, and that his and the public's interest would be better served if he were waived into criminal court. Invoking Wis. Stat. section 938.18(2), the circuit court asked the DHHS to prepare a waiver investigation report. Approximately 10 DHHS staffers met to discuss their recommendation as to whether the juvenile court should waive its jurisdiction over Tyler. The ADA participated and advocated waiver. Although neither Tyler nor his counsel was invited to attend, the DHHS worker who ultimately drafted the report had gathered information from Tyler, his lawyer, and his parents.

    The DHHS failed to reach consensus and filed a report without a formal waiver recommendation. The report detailed Tyler's history with the circuit courts of two other counties, described his education and family relationships, and advised that he presented a moderate risk of delinquency. The DHHS report said that the robbery was planned, aggressive, and potentially violent, and that Tyler willfully participated in other robberies on multiple occasions. The report explained that Tyler's offense met the criteria for the five-year serious-juvenile-offender (SJO) program.78

    Tyler argued against the state's request for waiver on the basis that he had responded well to juvenile court supervision in the past, and that the ADA's ex parte participation in the DHHS meeting unduly influenced what should have been an objective report by an independent body. During the two-day hearing, various DHHS staffers testified about the staff meeting and about DHHS conversations with Tyler's counsel before issuance of the report. One staff member admitted that it is not very common for the DHHS not to make a recommendation as to waiver.

    Ultimately, the circuit court waived juvenile court jurisdiction over Tyler, satisfied that the state had shown by clear and convincing evidence that juvenile court jurisdiction would be contrary to the best interests of Tyler and the public. The court said that it did not base its decision on the waiver report and that although it was "not a good idea" for the ADA to have been at the DHHS meeting, the court did not consider the ADA's presence to be coercive. On appeal, the court of appeals concluded that a waiver investigation report is unlike a presentence investigation (PSI) report, and that the ADA's presence at the DHHS staff meeting was not prohibited.79

    Tyler argued to the supreme court that the waiver decision was error as a matter of law, analogizing the waiver report to a PSI report and asserting the ADA's presence at the DHHS staff meeting compromised objectivity. He argued that both types of report serve as the court's information base, and the report authors act exclusively on behalf of the judiciary. He contended that the ADA's participation in the staff meeting could have subconsciously influenced the DHHS staff impressions of Tyler.

    The supreme court expressed reservations about the DHHS's invitation to the ADA based on perceptions of imbalance but declined to create a bright-line rule forbidding the agency from communicating directly with either party while preparing a waiver report. The court held that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court. Wisconsin Statutes section 938.18 sets out the criteria for waiver of juvenile court jurisdiction. Although there are similarities between waiver investigation reports and PSI reports under section 972.15, the court also noted some material differences.

    A PSI report is prepared postconviction by a DOC employee who acts on behalf of an independent judiciary. In contrast, the DHHS is necessarily involved with both the juvenile and the state from the start of the delinquency process. The DHHS provides intake services and crisis counseling and, within 40 days of a referral, must decide whether to request that the district attorney file a delinquency petition, enter into a deferred prosecution agreement, or close the case. Permitting the DHHS to contact both the state and the juvenile while preparing a waiver investigation report ensures that the court has access to a wider range of information.80

    Justice Bradley dissented, joined by Chief Justice Abrahamson. The dissent viewed the question as whether the ADA's participation in the final DHHS staff meeting was improper and possibly prejudicial to Tyler, while the majority framed the issue as whether the DHHS should avoid all contact with either the ADA or the juvenile during preparation of the report. The dissent also examined in detail other cases specifically discussing waiver investigation reports and the legislative history of section 938.18(2). Justice Prosser did not participate.

    Procedure for Sanctioning Appendix Rules Violations

    State v. Nielsen81

    Wisconsin's appendix content and certification rules in Wis. Stat. chapter 809 apply to civil and criminal cases and to prosecutors as well as defense counsel. The rules provide that a lawyer who does not comply with appendix content and certification requirements is subject to sanction. In Nielsen, the state public defender (SPD) challenged the manner in which the state court of appeals has found violations of appendix rules and imposed fines. Declining to address the SPD's constitutional challenges,82 the supreme court recognized the importance of complete appendices and the rules to ensure them, but also suggested that the intermediate court use some form of a "show cause" proceeding before actually imposing such a fine on an appellate lawyer.

    An assistant public defender had represented Nielsen in the appeal of his sentencing for homicide by intoxicated use of a vehicle. As part of its decision affirming the sentence imposed, the court of appeals criticized Nielsen's appellate counsel, in a footnote, for failure to include within the required appendix the entirety of the circuit court's remarks at sentencing. The public defender had included only three pages of a 46-page transcript, and omitted the first five pages of the circuit court's remarks about the circumstances of the crime, the defendant's lack of honesty with police, and other comments by the court about the defendant.83 In the same footnote, the court of appeals stated that counsel's failure to include the entirety of the sentencing remarks, despite signing a certification that the appendix was complete, violated section 809.19(2)(a) and rendered the certification false. The court of appeals directed the SPD to pay $150 within 30 days of the decision.

    The SPD sought review of the procedure for finding appendix rule violations and imposing fines, asserting due process and vagueness challenges, among others. On review, the supreme court recognized that the court of appeals is a high-volume court, and that its appendix content rules are necessary to assist the court and opposing counsel in understanding the appeal. The supreme court agreed that the appendix is an invaluable resource, and expressed concern that a judicial statement that an appendix certification was "false" could adversely affect a lawyer's reputation.84

    The court noted that section 809.19(2)(a) provides a contextually dependent standard and not a bright-line rule. In 2005, the supreme court had approved the certification rule, and in Nielsen the court acknowledged that the requirement "functions as a double-check so that the signing lawyer will satisfy [himself] or herself that the appendix is complete, and not merely rely on colleagues or staff to make that assessment."85 The court of appeals rightfully relies on that certification.

    Beth Ermatinger HananBeth Ermatinger Hanan, U.W. 1996, is an appellate and trial attorney at Gass Weber Mullins LLC, Milwaukee. She can be reached at

    Ultimately, to balance the concerns of both the appellate court and the public defender, the supreme court suggested that when the court of appeals considers imposing a sanction for a deficient appendix, it should issue a separate show-cause order directing counsel to show why a violation should not be found, and why counsel should not pay a particular fine amount as a sanction for failing to include parts of the record that may have been essential to an understanding of the issues on appeal or for filing an incorrect certification.86 Alternatively, this separate order can advise counsel that he or she simply may pay the fine within 30 days. An additional benefit of this procedure is that it separates the merits of the underlying appeal from the appendix compliance dispute, avoiding confusion and potential conflict between lawyer and client.


    1 Admiral Ins. v. Paper Converting Mach. Co., 2012 WI 30, 339 Wis. 2d 291, 811 N.W.2d 351.

    2 Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670; Tyler v. The RiverBank, 2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686.

    3 Admiral, 2012 WI 30, ¶¶ 7-10, 339 Wis. 2d 291.

    4 Id. ¶¶ 11-17.

    5 Admiral Ins. Co. v. PCMC, No. 2009AP2099, ¶ 3, 2010 WL 5158628 (Wis. Ct. App. Dec. 21, 2010).

    6 Admiral, 2012 WI 30, ¶ 30, 339 Wis. 2d 291 (citing Tyler).

    7 Gister v. American Family Mut. Ins. Co., 2012 WI 86, 342 Wis. 2d 496, 818 N.W.2d 880.

    8 Id. ¶ 4 (citing Wis. Stat. § 779.80 (1), (2)).

    9 Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999)

    10 Gister, 2012 WI 86, ¶ 6, 342 Wis. 2d 496.

    11 Id. ¶¶ 13-18.

    12 Miller v. Gorski Wladyslaw Estate, 547 F.3d 273, 283 (5th Cir. 2008).

    13 Gister, 2012 WI 86, ¶¶ 31-34, 342 Wis. 2d 496.

    14 Id. ¶ 37.

    15 Id. ¶¶ 41-43 (citing Dorr, 228 Wis. 2d at 430-42).

    16 Id. ¶¶ 48, 54.

    17 Id. ¶ 57.

    18 Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, 338 Wis. 2d 761, 809 N.W.2d 529. The author cowrote an amicus brief in this case.

    19 Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 596 N.W.2d 429 (1999).

    20 Hirschhorn, 2012 WI 20, ¶ 34, 338 Wis. 2d 761.

    21 Johnson v. Cintas Corp. No. 2, 2012 WI 31, 339 Wis. 2d 493, 811 N.W.2d 756.

    22 Id. ¶ 8.

    23 Id. ¶¶ 11, 14-15.

    24 Id. ¶ 18.

    25 Id. ¶¶ 24, 26-28.

    26 Bulik v. Arrow Realty Inc. of Racine, 148 Wis. 2d 441, 434 N.W.2d 853 (Ct. App. 1988).

    27 Hoesley v. La Crosse VFW Chapter, 46 Wis. 2d 501, 175 N.W.2d 214 (1970).

    28 Parks v. West Side Ry. Co., 82 Wis. 219, 52 N.W. 92 (1892).

    29 Johnson, 2012 WI 31, ¶ 39, 339 Wis. 2d 493.

    30 Id. ¶¶ 41, 43.

    31 Kroner v. Oneida Seven Generations Corp., 2012 WI 88, 342 Wis. 2d 626, 819 N.W.2d 264.

    32 Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 2000 WI 79, 236 Wis. 2d 384, 612 N.W.2d 709 (Teague II).

    33 Teague v. Bad River Band, 2003 WI 118, ¶ 71, 265 Wis. 2d 64, 665 N.W. 2d 899 (Teague III).

    34 S. Ct. Order 07-11, 2008 WI 114.

    35 Kroner, 2012 WI 88, ¶ 75 n.2, 342 Wis. 2d 626.

    36 Id. ¶ 70 & n.1.

    37 Id. ¶¶ 17-20, 21-24, 28-29.

    38 Id. ¶ 26.

    39 Id. ¶¶ 40-41, 49.

    40 Id. ¶¶ 4 n.4, 70.

    41 Id. ¶¶ 93, 101-02.

    42 Maxwell v. Hartford Union Sch. Dist., 2012 WI 58, 341 Wis. 2d 238, 814 N.W.2d 484.

    43 Id. ¶¶ 4, 23-24.

    44 Id. ¶ 27.

    45 Id. ¶¶ 29-33 (citing McCoy v. Nw. Mut. Relief Ass'n, 92 Wis. 577, 66 N.W. 697 (1896), Ahnapee & Western Rwy.Co. v. Challoner, 34 Wis. 2d 134, 148 N.W.2d (1967), Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989)).

    46 Id. ¶¶ 40-41.

    47 Pouwels v. Cheese Makers Mut. Cas. Co., 255 Wis. 101, 37 N.W.2d 869 (1949).

    48 Utica Mut. Ins. Co. v. Klein & Son Inc., 157 Wis. 2d 552, 460 N.W.2d 763 (Ct. App. 1990).

    49 Maxwell, 2012 WI 58, ¶¶ 51-58, 341 Wis. 2d 238.

    50 Id. ¶¶ 78-79, 86.

    51 Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, 341 Wis. 2d 607, 815 N.W.2d 367.

    52 Id. ¶¶ 8, 11-14.

    53 Id. ¶ 4.

    54 Wis. Stat. § 19.35(3).

    55 Milwaukee Journal Sentinel, 2012 WI 65, ¶¶ 28-32, 42 & n.20, 341 Wis. 2d 607.

    56 Id. ¶¶ 64, 77 (citing Osborn v. Board of Regents, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158 (holding that public records request required separation of information in 450,000 records)).

    57 Id. ¶¶ 1 n.4, 68-84.

    58 State v. Ryan, 2012 WI 16, 338 Wis. 2d 695, 809 N.W.2d 37.

    59 Wis. Stat. § 23.55(2)(b).

    60 Ryan, 2012 WI 16, ¶¶ 32-33, 338 Wis. 2d 695.

    61 Id. ¶¶ 36-39, 40-44.

    62 Id. ¶¶ 45-48, 50-53.

    63 Id. ¶¶ 56-60.

    64 State v. Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749.

    65 Id. ¶ 10.

    66 State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

    67 Negrete, 2012 WI 92, ¶ 31, 343 Wis. 2d 1 (citing 201 Wis. 2d 303, 548 N.W.2d 50 (1996)).

    68 Id.

    69 Id. ¶ 37.

    70 Id. ¶¶ 46-47, 52-55.

    71 State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848.

    72 Id. ¶¶ 4-10.

    73 Id. ¶ 15.

    74 Id. ¶¶ 25, 26-27.

    75 Id. ¶¶ 32-33.

    76 State v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1997).

    77 State v. Tyler T (In re Tyler T.), 2012 WI 52, 341 Wis. 2d 1, 814 N.W.2d 192.

    78 Id. ¶¶ 5-8, 9-13.

    79 Id. ¶¶ 15-17, 19-22.

    80 Id. ¶ 35, 37-40.

    81 State v. Nielsen, 2011 WI 94, 337 Wis. 2d 302, 805 N.W.2d 353. The author represented the Wisconsin Court of Appeals in this case.

    82 Nielsen, 2011 WI 94, ¶ 17, 337 Wis. 2d 302.

    83 Id. ¶ 21 & n.16.

    84 Id. ¶¶ 19, 32.

    85 Id. ¶ 16.

    86 Id. ¶ 33.

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