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    Wisconsin Lawyer
    September 01, 2012

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 9, September 2012

    Civil Procedure

    Claim Preclusion – Asserting Claims

    Wisconsin Pub. Serv. Corp. v. Arby Constr. Inc., 2012 WI 87 (filed 11 July 2012)

    Plaintiffs, the Wisconsin Public Service Corp. (PSC) and a utility, Associated Electric & Gas Insurance Services Ltd. (AEGIS), sued the defendant, Arby Construction, seeking indemnification for damages the plaintiffs paid to settle a federal-court tort action. The circuit court dismissed AEGIS's indemnification claim against Arby on the basis of claim preclusion. In a published decision, the court of appeals affirmed. See 2011 WI App 65.

    The supreme court affirmed in a majority opinion, authored by Justice Prosser, in which the court held that all elements of claim preclusion were present (see ¶ 36). "The elements of claim preclusion are traditionally stated as '(1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction'" (see ¶ 35).

    "We view AEGIS to be arguing that because AEGIS did not label its claim against Arby as a cross-claim and instead labeled it an affirmative defense, it did not assert that claim and therefore did not create adversity between itself and Arby – thus defeating the identity of parties and identity of claims elements of claim preclusion. Adversity is not itself an element; it is a prerequisite for determining an identity of the parties" (¶ 41).

    The court rejected AEGIS's assertion. "The fact that AEGIS did not assert its claim in perfect form does not change our analysis" (¶ 43). The record showed both identity of parties and identity of claims (see ¶¶ 57, 58). "What is important in fulfilling the identity of claims element of claim preclusion is that the precise claim for indemnification existed and was known in the prior litigation. Even though AEGIS contends that it was not trying to assert this claim, the claim appears repeatedly in the pleadings, including its pleadings. Moreover, as the court of appeals recognized, indemnification is not an affirmative defense. Contractual indemnification does not affect AEGIS's liability with respect to the plaintiffs" (¶ 59). As to the last element, the stipulated judgment on the merits in the federal litigation has "the same preclusive effect as a claim litigated to conclusion" (¶ 64).

    Chief Justice Abrahamson concurred in part and dissented in part, joined by Justice Bradley. Their opinion focused on the federal district court's order dismissing the earlier litigation. "I agree with the majority's assertion that a party should not be allowed to re-litigate or rekindle a claim by hiding behind the guise that the claim was improperly pleaded in the prior action. I agree with the majority that a mislabeled cross-claim may be given preclusive effect in a subsequent action. But at this stage in the present case, I am unable to determine from the record before the court whether AEGIS is, in fact, attempting to re-litigate or rekindle its claim, or if the parties instead left the claim to be resolved in a subsequent action" (¶ 88).

    Criminal Procedure

    Miranda – Custodial Interrogation – Harmless Error

    State v. Martin, 2012 WI 96 (filed 13 July 2012)

    A police officer witnessed a verbal altercation between two drivers and saw one of the drivers (Martin) retrieve an object from his jacket pocket and point it at the other driver. As the officer approached, Martin put the object back in his pocket. The officer placed Martin in handcuffs and searched him; during that search the officer recovered an expandable baton from Martin's pocket. (The officer later testified that when he placed handcuffs on Martin he was arresting him for disorderly conduct.)

    Meanwhile, two more police officers stopped to assist the original officer. One of them searched Martin's vehicle and recovered a loaded handgun from the vicinity where a passenger was sitting. Then, without giving Miranda warnings, the officer asked Martin and his passenger who owned the revolver. Both denied ownership. The officer then told the passenger that he was being placed under arrest for carrying a concealed weapon. Martin then asked the officers whether they would let the passenger go if Martin admitted that the handgun belonged to him. An officer responded that Martin should not say it was his gun if it were not, but he should be a "stand-up guy" and admit the revolver was his if indeed it were. Martin responded that the weapon belonged to him and that the police should let his passenger go.

    In this prosecution for being a felon in possession of a firearm, Martin moved to suppress his statements as described above, claiming they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The circuit court denied the motion and, in an unpublished decision, the court of appeals affirmed.

    In a majority opinion authored by Justice Gableman, the supreme court reversed. It began its analysis by recounting that a suspect cannot be subjected to custodial interrogation unless he or she has first been provided with the Miranda warning. In this case, Martin was in custody for Miranda-warning purposes at the time he made his statements. The Miranda safeguards become applicable as soon as a suspect's freedom of action is curtailed to a degree associated with formal arrest. Because Martin had been placed under arrest, and was in handcuffs and being questioned by the police, his freedom was so curtailed (see ¶ 34). Additionally, while in custody, Martin was interrogated when he was asked the initial question regarding ownership of the revolver. The court found that the later, inculpatory, statement in which Martin admitted the gun was his was made without a break of any kind between the Miranda violation and the making of the statement, "let alone a break sufficient to dissipate the taint of the constitutional wrong" (¶ 40). Accordingly, it was error to admit Martin's statements at his trial.

    The supreme court further held that the admission of this evidence was not harmless error. "To summarize, all of the factors that aid in our harmless error analysis direct that the error complained of in this case was not harmless. First, Martin's statements were repeatedly used throughout trial. Second, the State and the jury clearly found Martin's statements important; so much so that the State based its entire theory of the case on these inadmissible statements, and the jury sought clarification on them. Third, there was little evidence that corroborated Martin's admission that the revolver was his, but a significant amount of evidence contradicted his statement. Fourth, the content of Martin's statements – his admission of guilt – did not duplicate otherwise admissible evidence. Fifth, the nature of Martin's defense, while perhaps improbable, was at least plausible, and was consistent with most of the admissible evidence. Sixth, the nature of the State's case focused entirely on Martin's statements. Finally, the overall strength of the State's case is significantly weaker absent Martin's improperly admitted statements" (¶ 65).

    Chief Justice Abrahamson and Justice Bradley filed concurring opinions.

    Sentencing – Consideration of Dismissed Counts

    State v. Frey, 2012 WI 99 (filed 17 July 2012)

    The state charged the defendant with six felonies involving allegations of sexual assault, child enticement, and delivery of a controlled substance. On the morning set for trial, the parties reached a plea negotiation that the defendant would enter a guilty or no-contest plea to three of the felonies and the state would dismiss the other three. There was no agreement that the dismissed counts would be "read in" for purposes of sentencing. (In a read-in situation, the dismissed charges are expected to be considered in sentencing, with the understanding that the read-in charges could increase the sentence up to the maximum that the defendant could receive for the conviction in exchange for the state's promise not to prosecute the read-in offenses (see ¶ 68).)

    The defendant entered no-contest pleas to the three felonies pursuant to the negotiation, and the court dismissed the other three felonies. At sentencing, the judge explicitly considered the dismissed charges in explaining and imposing sentence. The issue before the supreme court was whether a circuit court may consider charges that have been dismissed outright in imposing a sentence (see ¶ 40).

    In a unanimous decision authored by Justice Prosser, the court answered this question in the affirmative. It recounted that in sentencing a defendant the circuit court must consider the nature of the crime, the defendant's character, and the public's rights (see ¶ 46). To discharge its obligation to discern a defendant's character, a sentencing court may consider uncharged and unproven offenses (see ¶ 47). The defendant's position that charges dismissed as part of a plea bargain may not be considered at sentencing "conflicts with longstanding public policy" (¶ 48).

    "[W]e think it is better practice for the [trial] court to acknowledge and discuss dismissed charges, if they are considered by the court, giving them appropriate weight and describing their relationship to a defendant's character and behavioral pattern, or to the incident that serves as the basis for a plea. The defendant should be given an opportunity to explain or dispute these charges" (¶ 54) (footnote omitted). "In sum, we reject the defendant's suggestion that the circuit court not be permitted to consider charges that are dismissed as the result of a plea bargain" (¶ 55).

    The court went on to analyze plea agreements that involve the dismissal of charges. "A plea agreement might require the district attorney to recommend that the circuit court not consider the dismissed charge to be an aggravating factor. The plea agreement might require the district attorney to acknowledge the unreliability of a dismissed charge, or not mention a dismissed charge at all. The plea agreement might incorporate a commitment not to prosecute a dismissed charge. Conversely, the agreement might permit each party to argue the relevance of a dismissed charge as the party deems appropriate. These agreements do not limit the circuit court's ability to consider dismissed charges. Rather, they embody the commitments that the prosecutor and the defendant, via defense counsel, make to each other, including the prosecutor's recommendations, range of arguments, and collateral commitments. In plea bargaining, defense counsel has a duty to assure that the defendant understands and approves the plea agreement" (¶¶ 79-80).

    "[D]efense counsel should assure that defendants entering a plea understand the potential consequences – including that the court may consider any crimes that the defendant may have committed when it determines the defendant's character, pattern of behavior, and need to protect the public" (¶ 87). The court indicated that use of the term "dismissed outright" should be discontinued. "It leads to misunderstanding. Instead, plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge" (¶ 88).

    The court concluded its opinion with the following helpful summary. "To sum up, we determine that a sentencing court may consider dismissed charges when it imposes a sentence. As a general rule, parties may not immunize certain offenses from consideration by the court. Rather, the court is expected to utilize the fullest amount of relevant information concerning a defendant's life and character in fashioning a sentence. It is the responsibility of defense counsel to assure that the defendant understands and consents to the terms of any plea bargain and appreciates the authority and independence of the sentencing court. The circuit court must confirm the defendant's understanding. The State and defense counsel would be well advised to make sure they agree on the terms of any plea bargain by putting the agreement in writing and documenting efforts to keep the defendant informed of all important developments" (¶ 102).

    Guilty Plea and Pronouncement of Judgment – Videoconferencing

    State v. Soto, 2012 WI 93 (filed 12 July 2012)

    In this case, the parties appeared in a courtroom at the Trempealeau County courthouse for a scheduled guilty-plea hearing. Soto appeared with his attorney, and the state appeared by the Trempealeau County district attorney. However, the circuit judge presided from the Jackson County courthouse in Black River Falls, and the individuals in the two courtrooms communicated via videoconferencing. During the hearing, the defendant entered a guilty plea and the judge accepted the plea, found him guilty, and convicted him of second-degree recklessly endangering safety with a deadly weapon.

    On appeal, the defendant argued that his right under Wis. Stat. section 971.04(1)(g) to be present in the same courtroom as the presiding judge at his plea hearing was violated when the court conducted the hearing via videoconferencing technology. The state responded that if the defendant had a right to be present in the same courtroom as the presiding judge, he waived it before pleading. The court of appeals certified the appeal to the supreme court, which granted certification.

    In a majority opinion authored by Justice Roggensack, the supreme court concluded that section 971.04(1)(g) provides a criminal defendant the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held, if the court accepts the plea and pronounces judgment in regard to the crime to which the defendant pleaded (see ¶ 34). Although plea hearings are not mentioned in the statute, it does specifically provide that the defendant shall be present "at the pronouncement of judgment and the imposition of sentence." In this case, the judgment of conviction was pronounced during the videoconferenced plea hearing.

    However, the court also concluded that a defendant may waive this statutory right. If this right is to be relinquished, it must be done by waiver, that is, by the intentional relinquishment of a known right (see ¶ 40).

    "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 then being employed. In that regard, the judge shall ascertain whether the defendant and his attorney, if represented by counsel, are able to see, speak to and hear the judge and that the judge can see, speak to and hear the defendant and counsel. The judge shall also ascertain, either by personal colloquy or by some other means, whether the defendant knowingly, intelligently, and voluntarily consents to the use of videoconferencing. In so doing, questions should be asked to suggest to the defendant that he has the option of refusing to employ videoconferencing for a plea hearing at which judgment will be pronounced" (see ¶ 46).

    In this case, the court found that Soto in fact waived his right to be present in the same courtroom as the presiding judge. "We so conclude because Soto appeared in a courtroom in the Trempealeau County courthouse; both his attorney and the prosecuting attorney also appeared in the same courtroom; through videoconferencing, the judge was able to see, speak to and hear Soto and Soto was able to see, speak to and hear the circuit court judge; the judge explained that videoconferencing would be used for the plea hearing if Soto chose to enter a plea that day; and Soto expressly consented to the use of videoconferencing for the plea hearing" (¶ 2).

    Chief Justice Abrahamson filed a dissenting opinion in which Justice Bradley joined.

    Crimes with Mandatory Minimum Penalties – Notice to Defendant

    State v. Thompson, 2012 WI 90 (filed 12 July 2012)

    The defendant was charged with two counts of first-degree sexual assault of a child under age 13 without great bodily harm, contrary to Wis. Stat. section 948.02(1)(b). This is a Class B felony and the complaint properly articulated that the maximum penalty for a Class B felony is imprisonment not to exceed 60 years. The case proceeded to a jury trial, and the defendant was convicted on one of the two counts.

    It was not until the time of sentencing that it was discovered that the defendant might face a 25-year mandatory minimum sentence for the crime of which he was convicted. See Wis. Stat. § 939.616(1). Before then, the state, the defendant, the defense attorney, and the circuit court were all unaware of the possible mandatory minimum penalty. Because of this problem, the circuit court granted the defendant a new trial. In an unpublished decision, the court of appeals reversed. In a majority decision authored by Justice Prosser, the supreme court reversed the court of appeals.

    First, the supreme court concluded that "there are legitimate questions whether a mandatory minimum sentence of 25 years applies to Thompson in this case. However, we do not decide this issue because the issue has not been briefed and it is better practice not to decide issues that have not been fully briefed. The issue should be considered on remand" (¶ 9). In its discussion, the court observed that "[t]he legislative history of the applicable statutes is so bizarre that it raises legitimate questions about whether the mandatory minimum sentence applies in this case" (¶ 27).

    Next, assuming but not deciding that the mandatory minimum sentence applies to Thompson, the court stated that "the failure to inform Thompson of the mandatory minimum sentence violated Wis. Stat. § 970.02(1)(a). Wisconsin Stat. § 970.02(1)(a) requires the judge who presides at an initial appearance to inform the defendant of the charge and furnish the defendant with a copy of the complaint 'which shall contain the possible penalties for the offenses set forth therein.' (Emphasis added). 'In the case of a felony, the judge shall also inform the defendant of the penalties for the felony with which the defendant is charged.' Id. (emphasis added). The court did not furnish the defendant with a complaint that contained one of 'the possible penalties for the offense' – namely, the mandatory minimum penalty of 25 years in prison – and it did not adequately inform the defendant of the possible penalties. Assuming that Thompson is subject to a mandatory minimum penalty, these violations of Wis. Stat. § 970.02(1)(a) by the State and by the circuit court were not corrected at any point in the proceedings" (¶ 10).

    "We conclude that this case must be remanded to the circuit court for a hearing to determine whether Thompson was prejudiced by the violations of Wis. Stat. § 970.02(1)(a). The prejudice determination must satisfy the traditional standard for overcoming harmless error, that is, there must be a reasonable probability that the error contributed to the outcome of the action or the proceeding at issue" (¶ 11). "We expect the circuit court to make a threshold determination whether the mandatory minimum penalty applies to Thompson and if it does, whether the Supreme Court's recent decisions in Frye [Missouri v. Frye, 132 S. Ct. 1399 (2012)] and Lafler [v. Cooper, 132 S. Ct. 1376 (2012)] affect the issue of prejudice" (¶ 85). (Frye and Lafler dealt with ineffective assistance of counsel in the plea-negotiation context.)

    Finally, and again assuming but not deciding that the mandatory minimum sentence applies to Thompson, "the failure of Thompson's defense attorney to discover this fact, inform Thompson of this fact, and incorporate this fact into his defense strategy, is likely to be assessed as deficient performance if Thompson should file an ineffective assistance of counsel claim. However, if Thompson were to make such a claim, he also would be required to establish prejudice from the deficient performance as the second prong of such a claim. We remand this case to the circuit court, so that all facets of possible prejudice to the defendant may be examined at the same time if an ineffective assistance of counsel claim is made" (¶ 12) (citation omitted). 

    Justice Ziegler filed a concurring opinion that was joined by Justice Roggensack and Justice Gableman.

    Sufficiency of Evidence – Jury Waiver – Harmless Error

    State v. Smith, 2012 WI 91 (filed 12 July 2012)

    Smith was charged with possessing more than 10,000 grams of marijuana (THC) with intent to deliver. He denied any involvement with the drugs. At the close of the evidence, the judge answered a verdict question regarding the weight of the THC based on the parties' stipulation. The jury found Smith guilty as a party to the crime. In an unpublished decision, the court of appeals found that sufficient evidence supported the conviction but also determined that Smith had not waived his right to trial by jury regarding the THC's weight, and so the court of appeals remanded the case for a determination of the proper remedy.

    The supreme court reversed the court of appeals in a majority opinion written by Justice Gableman. First, the court reaffirmed the standard of review for evidentiary sufficiency set forth in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990), which "corrected … errors" and "confusion" found in prior cases. Poellinger held "that for purposes of appellate review 'the trier of fact is free to choose among conflicting inferences of the evidence and may, within the bounds of reason, reject that inference which is consistent with the innocence of the accused'" (¶ 31). Case law to the contrary was specifically overruled (see ¶ 32). Second, the supreme court held that the court of appeals properly viewed the evidence as a whole in deciding that the jury's findings were reasonable. It was not obligated to view the evidence piecemeal. Third, applying these standards, the supreme court held that sufficient evidence supported Smith's conviction.

    The next set of issues concerned the denial of Smith's right to trial by jury. Under the Apprendi doctrine (see Apprendi v. New Jersey, 530 U.S. 466 (2000)), Smith clearly had a right to have the jury determine how much the THC weighed (see ¶ 50). The parties and the court agreed that Smith did not waive the right to have the jury decide this issue. Smith's stipulation at trial did not suffice.

    "It is therefore a far different thing for a defendant to stipulate to a fact than it is for him to waive his constitutional right to a jury determination of that fact. Smith did the former but not the latter. He was never informed that he had a constitutional right to a jury determination of the drug quantity, nor was he ever given the opportunity to waive or invoke that right. Accordingly, we hold that Smith did not waive his constitutional right to a jury determination of the drug quantity. As a result, it was error for the circuit court to answer the question of quantity for the jury" (¶ 57). The error, however, was harmless.

    The majority opinion elaborates on federal and state case law, applying harmless-error analysis to such issues. In finding that the error was harmless, the majority rejected the dissent's distinction between facts that are "undisputed" and those that are "indisputable" (¶ 71). The majority also rejected Smith's contention that the statutory right to jury trial (see Wis. Stat. § 972.02(1)) provided a separate ground for granting a new trial (see ¶ 66).

    Justice Bradley dissented, joined by Chief Justice Abrahamson. "I disagree with the majority's application of the harmless error doctrine here because it extends that doctrine beyond the limited circumstances in the cases it cites and further erodes the vitality of the constitutional right to a trial by jury. Instead, I would remand to the circuit court for a determination of whether Smith knowingly, voluntarily, and intelligently waived his right to a jury determination of all elements of the crime. Accordingly, although I agree with the majority's determination regarding the sufficiency of the evidence, I respectfully dissent" (¶ 79).

    Plea-Withdrawal Motions – Sufficiency

    State v. Negrete, 2012 WI 92 (filed 12 July 2012)

    Negrete pleaded guilty to felony sexual assault in 1992 and was discharged from probation in 1994. In 2010, he moved to withdraw his guilty plea on grounds that he had not been informed that his plea carried immigration consequences. Negrete's affidavit, however, was equivocal on this point ("I do not recall …"), and his guilty plea questionnaire indicated that he had been told about the immigration ramifications (see ¶¶ 6, 11). No transcript of the guilty plea hearing was available. The circuit court denied Negrete's request for an evidentiary hearing. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed in a majority opinion, authored by Justice Roggensack, that addresses the pleading requirements and standards of review governing plea-withdrawal motions. There are two methods, each named for its progenitor case. The Bentley method requires that in situations in which the withdrawal motion is made after sentencing, the defendant show a manifest injustice by clear and convincing evidence. See State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

    The Bangert method shifts the burden to the state to show that the guilty plea was properly conducted. See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). The supreme court held that "the Bangert procedure is predicated on a defendant making 'a pointed showing' of an error in the plea colloquy by reference to the plea colloquy transcript." Absent a transcript, as here, Bangert is inapplicable, and the proper standard is governed by Bentley, as explained by the majority at paragraphs 29-33.

    Statutory procedures also apply. "[U]nder the applicable pleading standards for motions to withdraw guilty or no contest pleas under Wis. Stat. § 971.08(2) where the plea hearing transcript is unavailable, a defendant must allege sufficient facts that, if true, would demonstrate satisfaction of the statute's two requirements. A defendant must allege that the court did not tell the defendant of the immigration consequences of his plea and that entry of the plea is likely to result in one of the consequences enumerated in § 971.08(2). However, if the record conclusively demonstrates that the defendant is not entitled to relief, no hearing is required; or, if the defendant does not allege sufficient facts that, if true, would entitle the defendant to relief, the circuit court is within its discretion to deny the defendant's motion without holding an evidentiary hearing" (¶ 28).

    Negrete's motion failed the pleading requirements as required by "step one" of the Bentley method. Negrete's equivocal affidavit "supplant[ed]" his allegations in the pleading that he had not been told about the immigration consequences (see ¶ 35). And Negrete's bare allegation that he was now subject to deportation proceedings did not sufficiently demonstrate that his plea was likely to result in his deportation (see ¶ 36).

    "In so doing, a defendant may submit some written notification that the defendant has received from a federal agent that imports adverse immigration consequences because of the plea that was entered; or, a defendant may narrate verbal communications that the defendant has had with a federal agent advising that adverse immigration consequences were likely and that such consequences were tied to the crime for which the plea was entered. A defendant's motion should not require the circuit court or a reviewing court to speculate about the factual basis for the requisite nexus" (¶ 38). Finally, applying step two of the Bentley method, the circuit court properly exercised its discretion in denying Negrete's motion.

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. "I dissent because the majority opinion improperly applies the first statutory pleading requirement and creates a second, brand-new pleading requirement for a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2) when a circuit court fails to give a defendant the warnings" (¶ 45).

    Probationers – Self-Incrimination – Immunity

    State v. Spaeth, 2012 WI 95 (filed 13 July 2012)

    While on probation for sexually assaulting a child, Spaeth was required to take a polygraph examination to ensure his compliance with conditions. The test suggested that Spaeth had engaged in deception. When questioned, Spaeth confessed to having had sexual contact with other children. Police were called, and Spaeth made additional incriminating statements. Spaeth pleaded guilty to multiple counts of child enticement after a judge refused to suppress his statements. The supreme court accepted the case on certification from the court of appeals.

    The supreme court reversed Spaeth's convictions in a majority opinion authored by Justice Prosser. It held that Spaeth's statements, including all derivative evidence, were wholly inadmissible at trial for any purpose, including impeachment. The state conceded that Spaeth was compelled to take the polygraph examination, which in turn compelled him to make the incriminating statements (see ¶ 49). The opinion describes the typical stages of a polygraph examination and the rules and regulations that apply to sex offenders who are compelled to take them.

    "In sum, the law unequivocally provides that incriminating testimony may be compelled but that it may be disclosed only for purposes relating to correctional programming, care, and treatment of the offender. These legitimate purposes include revocation of probation or parole" (¶ 52). Spaeth faced revocation of his probation if he refused to take the polygraph. "This compulsion is authorized by statute and rule, demonstrated in the cases, and testified to by the DOC agent involved. All parties agree that this case involves compulsion. As a result, we have no difficulty determining that Spaeth was compelled, under the rules of his probation, to answer truthfully during the polygraph examination" (¶ 58).

    Nor was Spaeth required to invoke his privilege against self-incrimination. "We see this case as one involving compelled, incriminating, testimonial evidence, making it subject to the principles of Kastigar, Portash, and Evans. [See Kastigar v. United States, 406 U.S. 441 (1972); New Jersey v. Portash, 440 U.S. 450 (1979); State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977).] This case falls within one of the stated exceptions to the 'invocation' rule in Minnesota v. Murphy. [See Minnesota v. Murphy, 465 U.S. 420 (1984).] As a result, Spaeth's statement to police may not be used in any criminal proceeding because the statement was not derived from a source wholly independent from the compelled testimony. It was derived from compelled testimonial evidence" (¶ 58).

    Finally, the attenuation doctrine was "simply inapplicable when police are following up compelled, incriminating testimonial statements" (¶ 64). Rather, the state was required to show that any evidence in its possession was wholly independent of the compelled statements. This it could not do.

    The majority opinion recognized the difficult dilemma faced by law enforcement officers, who "may have to choose in some instances between (1) compelling statements to support probation revocation but effectively giving up on future prosecution; and (2) not compelling statements and then never discovering serious crimes. Nevertheless, the analysis in this opinion is not new" (¶ 76).

    Chief Justice Abrahamson concurred in the majority's opinion but wrote separately to address the dissent. Her concern was that "the dissent makes some strong statements of law that appear to be a break from precedent and does so without the benefit of briefs or argument" (¶ 81).

    Justice Roggensack dissented on grounds that Spaeth's statements were voluntary, not compelled.

    Custodial Interrogation – Right to Counsel – Overruled Case Law

    State v. Stevens, 2012 WI 97 (filed 13 July 2012)

    Stevens was arrested on suspicion that he had committed a sex offense. Police read him his Miranda rights, and Stevens asked for a lawyer. All questioning promptly ceased. While being walked back to his cell, Stevens said he wanted to continue the interrogation and clear things up. Instead of immediately questioning him, the interrogator left the police station, while Stevens waited in custody. At no time did Stevens ask for a lawyer or ask someone to contact his lawyer, and he was not told that the lawyer did stop by the police station, at the request of Stevens' sister, to assist him, but was refused access to Stevens and left. After several hours, the interrogator returned and obtained a valid Miranda waiver from Stevens, who made incriminating statements. The circuit court suppressed Stevens' statements, but the court of appeals reversed in an unpublished decision.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Prosser. "[A] suspect in custody may remain silent by declining to answer questions, by asserting his right to remain silent, or by invoking his right to an attorney to help him remain silent. But the suspect must invoke the right to counsel to assure that interrogation is not only terminated but also may not be resumed except at the personal initiation of the suspect. If a suspect wishes to be placed on the constitutional equivalent of a 'do not call' list, he must invoke the right to counsel so that the police may not approach him to ask questions. If interrogation is terminated because a defendant has invoked the right to counsel, the actual need for counsel is substantially eliminated, and thus counsel may not be appointed until the defendant appears in court. There is no need to suppress a defendant's statements if the police have not asked him questions" (¶ 68).

    Although Stevens invoked his right to counsel, which terminated the initial interrogation, he later "spontaneously initiated conversation with his interrogator and asked to continue the questioning" (¶ 71). Moreover, during the four hours while the interrogating officer was gone, Stevens never demanded counsel or otherwise changed his mind. Finally, Stevens waived his Miranda rights when the second interrogation commenced. The majority opinion discusses much of the core Miranda case law.

    The supreme court also took up a collateral issue regarding the status of court of appeals cases that are overruled by the supreme court. Relying on its own case law, it set forth the following bright-line test: "if this court overrules a court of appeals decision without further comment, the court of appeals decision has no precedential value" (¶ 80).

    Justice Ziegler concurred, joining the majority opinion on the Miranda issue and writing separately to clarify the need for courts to use common sense in evaluating the precedential value of court of appeals cases that the supreme court overrules.

    Chief Justice Abrahamson concurred with the majority regarding the approach to be taken to overruled court of appeals decisions but dissented on the Miranda issue. "In this case, Stevens' only effective waiver came after the second Miranda warning. Stevens' waiver of counsel came after Stevens' counsel appeared at the police station to speak with Stevens. I therefore conclude that Stevens' Fifth Amendment right to counsel was violated when law enforcement failed to advise Stevens that counsel was available to speak with him" (¶ 112).


    Medicaid – Hospital Liens

    Gister v. American Family Mut. Ins. Co., 2012 WI 86 (filed 11 July 2012)

    A motorist (the tortfeasor) ran a stop sign and struck a car containing the Gister family, injuring Mrs. Gister and her three sons. The tortfeasor's liability policy provided coverage of $250,000 per person and $500,000 per incident. Total medical expenses approached $400,000. The Gisters were all eligible for Medicaid. The hospital, however, did not bill Medicaid for the Gisters' health care but instead filed liens pursuant to the hospital lien statute, Wis. Stat. section 779.80. The hospital filed a declaratory judgment action seeking to enforce the liens, while the Gisters sought a judgment that they were unenforceable. The circuit court upheld the liens, but the court of appeals reversed in an unpublished decision.

    The supreme court reversed the court of appeals in a majority opinion, written by Justice Gableman, that addresses the interrelationship of the federal Medicaid program and third-party liability actions. Essentially, the Gisters contended that the hospital's liens were barred for two reasons, neither of which the majority found persuasive. First, the Gisters argued that the liens were foreclosed by Wis. Stat. section 49.49(3m)(a), which regulates "direct charges" by hospitals against Medicaid patients. The court agreed that both case law and logic pointed to the hospital liens as efforts "to collect from" the patients, which made those efforts subject to federal regulation (see ¶¶ 18, 19). But the majority read federal case law as authorizing the liens at issue here, which did not run afoul of proscribed practices involving "balance" and "substitute" billing because the hospital had not billed Medicaid in the first place (see ¶¶ 24, 25).

    Second, state law did not bar the hospital's liens. Wisconsin law exceeds federal mandates. "For unlike [federal regulations], Wis. Stat. § 49.49(3m)(a) contains a third party liability provision that does come into play, by its plain terms, even where the hospital never bills Medicaid" (¶ 26). Using a "plain language" analysis, the court held the liens "did not constitute 'direct charges upon' the Gisters, and that they were therefore permissible under the plain language of the second prohibition" in section 49.49(3m)(a) while also comporting with other pertinent regulations (¶¶ 34, 39).

    The majority also distinguished Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999), "paus[ing] to clarify the teaching of Dorr" while also rejecting a broad interpretation of Dorr (¶ 50). The supreme court concluded that "a patient's debt to a hospital is extinguished for purposes of a hospital lien placed upon a settlement between a patient and an insurer covering a tortfeasor's liability, if it ever is, only when the following can be accurately said: that the hospital is legally barred from ever billing the patient, either directly or indirectly" (¶ 54).

    "The utility of our rule is underscored by the circumstances of the present case. If the Gisters had initiated a personal injury lawsuit, St. Joseph's could have joined the action under Wis. Admin. Code § DHS 106.03(8). Because that possibility was still open at the time St. Joseph's liens were filed, it would be irrational to hold, as a matter of law, that St. Joseph's had an insufficiently definite interest in the funds that American Family might later provide pursuant to a settlement" (¶ 58).

    Justice Bradley dissented, joined by Chief Justice Abrahamson and Justice Crooks. The dissent said that the majority embraced a "third option" not contemplated by federal and state law governing Medicaid (¶ 63). The dissent stressed the distinction between joining a lawsuit and imposing a lien (see ¶ 87). "By permitting the hospital to bow out of the litigation process and impose a lien on the Gisters' settlement money, the majority arguably allows the hospital to avoid the costs of engaging in litigation and common law principles such as the made whole doctrine. In a case like this where the hospital's charges are substantial and the available insurance proceeds are limited, the hospital could absorb a majority of the settlement, leaving the Gisters and other health care providers, such as doctors, without any recovery" (¶ 88).

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