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    Wisconsin Lawyer
    June 01, 2013

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at 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


    Issue Preclusion – Claim Preclusion

    Cirilli v. Country Ins. & Fin. Servs., 2013 WI App 44 (filed 27 March 2013) (ordered published 24 April 2013)

    Holding: An arbitrator properly rejected arguments that she was bound in various ways by issue and claim preclusion arising out of prior arbitrations.

    Individuals who formerly had been agents for Country Insurance sued Country for termination commissions. The arbitrator ruled that the former agents’ claims were time barred by their agreement with Country. On review, the circuit court agreed with the arbitrator.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The court of appeals affirmed in an opinion written by Judge Neubauer. Essentially, the former agents contended that issue and claim preclusion bound the arbitrator to rule in accordance with arbitrators’ determinations in two prior cases. The court of appeals disagreed.

    First, an arbitrator’s award is presumed valid and will be set aside only in extreme instances such as a “manifest disregard for the law” (¶ 7). Issue preclusion did not bind this arbitrator to the outcome of an earlier arbitration, which she concluded was wrongly decided and called “inequitable” after a careful review of the law and facts. Issue preclusion, the court observed, is problematic in arbitrations, in which the opportunity for review and appeal is limited.

    “The preclusion analysis permitted the arbitrator to evaluate the previous decision, including consideration of its quality and the fundamental fairness of applying its result to the current dispute. Indeed, precluding the second arbitrator from conducting a meaningful review would, given the courts’ highly deferential review, bind a second arbitrator (and confirming court) to an arbitration decision that was not subject to a critical, independent review in the first arbitration” (¶ 12).

    Nor was claim preclusion applicable in this arbitration. The arbitrator reasonably determined that the plaintiffs in this case were not in privity with those in the earlier litigation because there was no “identity of interest” (¶ 16). The court also noted that the former agents were essentially asking the court to review the merits of both arbitrators’ decisions.

    “We are aware of no authority that would permit this court to second guess both arbitrators’ decisions on the merits under the guise of reviewing the second arbitrator’s decision to apply, or not apply, preclusion. Under this scenario, a party unsuccessful at the second arbitration need only raise the specter of preclusion, guaranteeing de novo review in the judicial system. That is exactly what arbitration was meant to avoid” (¶ 18).

    Civil Procedure

    Judgments – Arbitration Awards – Evidentiary Hearings – Attorney Fees

    Sands v. Menard Inc., 2013 WI App 47 (filed 26 March 2013) (ordered published 24 April 2013)

    Holding: The circuit court erred by refusing to consider motions challenging a judgment based on an arbitration award, failing to hold an evidentiary hearing following remand on a pay dispute, and incorrectly calculating attorney fees.

    This is the latest installment in the continuing litigation between Menard Inc. and Sands, its former general counsel, regarding her unlawful termination. In an earlier decision, the supreme court held that the circuit court could not order Menard to reinstate Sands to her position and remanded the case for the circuit court to determine an appropriate front-pay award. The circuit court rejected several motions seeking relief from the judgment confirming the arbitration award, refused to hold an evidentiary hearing on the front-pay issue, and awarded Sands attorney fees identical to what Menard had spent.

    The court of appeals reversed in an opinion authored by Reserve Judge Cane. First, the court held that Wis. Stat. section 806.07(1) can be used to reopen judgments confirming arbitration awards, which had been an “open question” in Wisconsin (see ¶ 27). Allegations that Sands paid a witness (her sister) to falsely testify affected the arbitration proceedings’ integrity and warranted a hearing (see ¶ 31).

    The court also addressed several other issues likely to arise on remand. It agreed with both parties that there should be an evidentiary hearing on the front-pay issue, also ruling that Sands was not judicially estopped from requesting more than the two years’ worth of pay she demanded at arbitration (see ¶ 41). The court also addressed issues involving mitigation of damages and Menard’s after-acquired evidence of Sands’ misconduct (see ¶ 49).

    Finally, the court of appeals held that the circuit court improperly calculated attorney fees for Sands, the “prevailing party” in the prior litigation (see ¶ 53). Rather than using the lodestar method, the circuit court ruled that Sands would receive the “exact amount of attorney fees expended by Menard” (¶ 57). The court of appeals held this constituted an abuse of discretion. The court of appeals instructed that on remand, the circuit court must hold a hearing on reasonable attorney fees.

    Criminal Procedure

    Search and Seizure – Consent Search – Apparent Authority – Scope

    State v. Wheeler, 2013 WI App 53 (filed 19 March 2013) (ordered published 24 April 2013)

    Holding: Police officers lawfully searched a residence pursuant to a consent obtained from a person who had apparent authority to grant consent.

    Milwaukee police officers were dispatched to a duplex in response to a 9-1-1 call from a woman who reported she had been assaulted by the father of her child, she was bleeding, and the assailant had left the scene. After arriving at the duplex, the officers knocked on the door and yelled repeatedly for approximately 20 minutes before a woman (Bates) opened the common door to the duplex. The police told Bates they were investigating a domestic violence call related to the lower unit. Bates told police she lived in the upper unit and knew nothing about a domestic disturbance in the lower unit. Bates also offered to try to contact the landlord of the duplex so that police could access the lower unit; she pulled out her cell phone and appeared to make a phone call but was speaking too quietly for the officers to hear her conversation. Bates also consented to the search of the basement but the officers did not find anything there.

    Officer Flowers then asked Bates if she had “control” over the upper unit of the duplex, to which Bates responded in the affirmative and stated that she lived by herself in the upper unit. Flowers asked Bates for permission to search the upper unit and Bates then said something to the effect of “I have no problem with that.” Police obtained Bates’s consent to search in writing.

    While in the upper unit, an officer noticed an access panel on the ceiling in one of the hallways. The officer stood on a chair, unhooked and unlatched the access panel with a baton, and went into the attic, where he noticed a partially open potato chip bag. He picked up the bag and saw a white substance – later positively identified as cocaine – inside the bag. The officer also found a firearm in the attic.

    Bates subsequently told the police that she did not really reside at the duplex but was asked by Wheeler, the defendant, to lie and say that she did; the residence searched was his. Wheeler was charged with possession of cocaine and possession of a firearm by a felon. He moved to suppress the evidence recovered from the attic. The circuit court denied the motion. In a majority decision authored by Judge Kessler, the court of appeals affirmed.

    The appellate court first concluded that Bates had apparent authority to consent to the warrantless search of the upper unit, and that the officers were reasonable, under the circumstances as described above, in reaching the same conclusion (see ¶ 23). It was undisputed that Bates did not actually reside in the upper unit of the duplex and did not actually possess the authority to grant consent to a police search. However, the U.S. Supreme Court, in Illinois v. Rodriguez, 497 U.S. 177 (1990), expanded the third-party-consent exception to include situations in which a warrantless entry is based on the consent of a third party who the police, at the time of entry, reasonably believe possesses apparent common authority over the premises, but who in fact does not (see ¶ 16).

    The court further concluded that the search of the attic was within the scope of the consent to search. “At no point did Bates attempt to limit the scope of the consent by telling officers to avoid the attic space. At no point did Bates attempt to add a written limitation to her written consent. Given the facts that: (1) Bates did not object to the officers’ search of the attic area, (2) police were looking for injured parties in relation to a domestic violence call who may have been hiding, and (3) the attic area was large enough for a person to hide, we conclude that the police did not exceed the scope of Bates’s consent when they searched in the attic area and retrieved cocaine and a firearm” (¶ 26). Finally, the court concluded that the open potato chip bag and the cocaine inside were within the officer’s plain view (¶ 28).

    Judge Fine filed an opinion concurring in part and dissenting in part.

    Ineffective Assistance of Counsel – Confrontation – Prior Convictions

    State v. McDougle, 2013 WI App 43 (filed 5 March 2013) (ordered published 24 April 2013)

    Holding: Trial counsel was not ineffective even though he did not object to testimony about an autopsy performed by a doctor who did not testify or to the introduction of evidence concerning the defendant’s two prior felony convictions on a firearms charge.

    A jury convicted the defendant of first-degree intentional homicide while armed and being a felon in possession of a firearm. In postconviction litigation, the circuit court rejected his contention that trial counsel provided ineffective assistance.

    The court of appeals affirmed in an opinion written by Judge Curley. First, the defendant argued that trial counsel should have objected to testimony (that the victim died of a gunshot wound) given by a physician who observed the victim’s autopsy as it was conducted by another doctor. Simply put, the defendant was not prejudiced by this testimony irrespective of whether it violated his right of confrontation, especially because he did not contest the cause of the victim’s death.

    Nor was trial counsel ineffective when he did not object to the state’s introduction of documentation that the defendant had committed two prior felonies, even though the law required the state to prove only one previous conviction. The evidence came after the defendant rejected a proposed stipulation; the state “took great care” to minimize any unfair prejudice (¶ 22). Evidence of his guilt was “overwhelming” (¶ 23).

    Informants – Disclosure

    State v. Nellessen, 2013 WI App 46 (filed 18 March 2013) (ordered published 24 April 2013)

    Holding: In a drug possession case, the defense was entitled to an in camera review for the court to determine whether a confidential informant might have necessary information bearing on the defendant’s awareness that there were drugs in her car.

    The defendant was charged with possession of marijuana with intent to deliver after marijuana was found in her car during a traffic stop. It later surfaced that the police had spoken with an informant before the defendant’s car was stopped. The circuit court denied the defendant’s motion to disclose the informant’s identity, ruling that she had failed to even provide sufficient evidence to support an in camera review of the informant’s information.

    The court of appeals reversed in an opinion written by Judge Sherman. Relying on State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982), the court held there was sufficient evidence to order an in camera review of the informant’s testimony. The court stressed that the evidentiary threshold for in camera review is a low one: is there even a “possibility” that the informant could provide testimony necessary to a fair determination (see ¶ 12). It appeared from the record that it was possible the informant might have information about whether the defendant knew the marijuana was in the car, especially in light of the detailed information the informant apparently had (see ¶ 14). The state’s arguments to the contrary went more to the separate issue of whether disclosure was warranted, a step taken only after the in camera review (see ¶ 16).

    Immunity – Waiver – Ineffective Assistance of Counsel

    State v. Libecki, 2013 WI App 49 (filed 27 March 2013) (ordered published 24 April 2013)

    Holding: The trial judge was not obligated to conduct a personal colloquy with the defendant regarding his waiver of immunity nor was trial counsel ineffective in pursuing a strategy that involved this waiver.

    In a trial held in 2010, Libecki was convicted of murdering a coworker in 1999. Authorities investigated the murder for more than 10 years, finally linking Libecki to the crime through footprints, tire tracks, and DNA evidence. Although Libecki at first asserted no knowledge of the crime, he later claimed to have been in his truck when a now-deceased coworker stabbed the victim to death in the backseat. Libecki claimed that he was a bystander to the murder but conceded that he later dumped the body on the roadside and drove away.

    The court of appeals affirmed in an opinion written by Chief Judge Brown. Libecki changed his story after he was granted immunity in 2006, when he also told police that they would likely find the victim’s blood in the backseat – which they did when they finally looked in 2009. Libecki contended that the trial judge should have conducted a personal colloquy regarding his waiver of immunity when he agreed to the introduction of the otherwise immunized blood evidence.

    No authority, however, established that this issue fell within “that narrow class of rights that only the defendant, personally, may waive” (¶ 18). The court of appeals did agree that such a colloquy would be a “good practice” provided the circuit court is aware of the immunity grant, which was not the situation here (see ¶ 19).

    The court also discussed prosecutors’ obligation to apprise the court of immunity grants. “As an officer of the court, the prosecutor should be up front with both the defendant and the court. So, rather than a simple issue of whether there was a personal colloquy or whether there was a contemporaneous objection, the issue presented is whether, under the totality of the circumstances, Libecki’s waiver of his immunity with respect to the blood evidence in the Explorer was knowing, intelligent, and voluntary” (¶ 20). 

    The record here revealed that Libecki had so waived immunity, because he essentially viewed the blood evidence and his prior statements as exculpatory (see ¶ 22). For similar reasons, his lawyer’s choice of strategy was not “‘deficient performance’ just because it fail[ed]” (¶ 25).

    Domestic Abuse – Extended Probation Term – Notice to Defendant

    State v. Edwards, 2013 WI App 51 (filed 27 March 2013) (ordered published 24 April 2013)

    Holding: The imposition of an extended probation period for a domestic abuse conviction did not deny the defendant due process even though charging documents did not specify that the state was seeking an extended term.

    Edwards was arrested after a woman called the police and stated that Edwards had beaten her and then, after she had left the house, called her on the telephone threatening suicide. The criminal complaint charged him as follows: “Count 1: Strangulation and Suffocation, Domestic Abuse”; “Count 2: Substantial Battery, Domestic Abuse”; and “Count 3: Disorderly Conduct.”

    In each of the first two counts, the complaint mentions “domestic abuse” and invokes the provisions of Wis. Stat. section 968.075(1)(a) to notify the defendant that costs on conviction would include the domestic abuse assessment. The third count, for disorderly conduct, did not contain the phrase “domestic abuse” and did not cite section 968.075(1) (a). The information the prosecutor filed did not contain any additional information.

    A jury convicted Edwards of substantial battery and disorderly conduct. On the disorderly conduct charge, the court found the offense to be an act of domestic violence and used the provisions of Wis. Stat. section 973.09(2)(a)1.b to impose an extended probation term of two years. On appeal, Edwards argued that the imposition of an additional year of probation under the domestic abuse provision violated his constitutional right to due process because the disorderly conduct was not specifically charged as an act of domestic abuse.

    In a decision authored by Judge Neubauer, the court of appeals affirmed. It concluded that in this case, “the statute itself provided Edwards sufficient notice of the potential probationary term for acts of domestic abuse. The State did not need to set forth in the information and complaint that it was seeking two years of probation under Wis. Stat. § 973.09(2)(a)1.b. The fact that the State did indicate that it sought a finding of domestic abuse in the first two counts does not create a duty to do so in the third” (¶ 9).

    The court rejected the defendant’s contention that the complaint failed to put him on notice that the sentencing court could consider his offenses to be acts of domestic abuse (see ¶ 10). “Including ‘domestic abuse’ as magic words in the recitation of the disorderly conduct count was not necessary” (id.).


    Hospital Liens – Expired Billing Period

    Laska v. General Cas. Co., 2013 WI App 42 (filed 14 March 2013) (ordered published 24 April 2013)

    Holding: Federal law did not bar a hospital’s lien despite the hospital’s failure to file a claim before the Medicare billing period expired.

    Laska was injured in 2007, incurring nearly $20,000 in hospital charges. Instead of billing Medicare, the hospital filed a lien against Laska’s tort claims. In 2008, after expiration of the period in which a Medicare bill could have been filed, Laska settled with all parties except the hospital. In summary judgment proceedings, Laska argued that federal law required the hospital to withdraw its lien after the Medicare billing period expired. The circuit court ruled in favor of the hospital.

    The court of appeals affirmed in an opinion written by Judge Blanchard, which first clarified that this case did not concern the federal Medicare as secondary payer statute or whether Laska was “made whole” by his settlement (see ¶ 16). Rather, the opinion focused on federal law, especially Medicare statutes and regulations, the pertinent case law, and several governmental memoranda. Ultimately, the court held that a 2000 memorandum from the Department of Health and Human Services was not a reasonable interpretation of federal law. “Laska fails to point to any other federal authority that would bar the Hospital’s lien after the Medicare billing period expired” (¶ 55).

    The court of appeals also discussed Gister v. American Family Mutual Insurance Co., 2012 WI 86, 342 Wis. 2d 496, 818 N.W.2d 880, which limited an earlier case, highly favorable to Laska, to its facts (see ¶ 64). Laska failed to develop any argument grounded in federal law that barred the lien.

    Municipal Law

    Sex Offenders – Local Residency Restrictions

    City of South Milwaukee v. Kester, 2013 WI App 50 (filed 13 March 2013) (ordered published 24 April 2013)

    Holding: A city ordinance restricting residency of convicted sex offenders established a nuisance per se, was not preempted by state law, and as applied did not violate double jeopardy and ex post facto protections under the U.S. and Wisconsin constitutions.

    In 2000, Kester was convicted of sexually assaulting a child. In April 2010, he moved into a residence, in the city of South Milwaukee, that was within 1,000 feet of an elementary school. The city has an ordinance that prohibits child sex offenders such as Kester from living within 1,000 feet of elementary schools. The city informed Kester that he had to move. He refused to do so. The city filed an action in circuit court, asking the court to declare Kester’s residency a public nuisance and to enjoin him from living in the home. The circuit court granted the injunction and ordered Kester to move. In a decision authored by Judge Reilly, the court of appeals affirmed.

    The appellate court considered and rejected several arguments advanced by Kester. It concluded that the circuit court did not err in issuing the injunction without determining whether Kester’s residence constituted an actual public nuisance based on his risk of reoffending, and that Kester’s right to procedural due process was not violated by application to him of a nuisance per se standard.

    The city ordinance establishes that it is a public nuisance per se when a person convicted of certain sex offenses resides within 1,000 feet of any one of an enumerated list of facilities. No other evidence is required to find the existence of a public nuisance for which an injunction may be issued (see ¶ 10). An individual determination that Kester is an actual nuisance is not required by the ordinance (see ¶ 11) nor is proof of future bad acts required to establish that his residency constituted a public nuisance (see ¶ 14).

    The court of appeals further concluded that the ordinance is not preempted by state laws regulating sex offenders. “Regulation of convicted child sex offenders, including where they may live after release from confinement, is clearly a matter of both statewide and local concern. The fact that the regulation of sex offenders is a matter of statewide concern, however, does not preclude municipalities such as the City from using their home-rule powers to impose further restrictions consistent with those imposed by the state” (¶¶ 17-18).

    In this case, the court concluded that Kester has not shown that the city ordinance defeats the purpose or violates the spirit of state laws regulating child sex offenders (see ¶ 19). It also rejected Kester’s claim that the ordinance as applied to him violates the double jeopardy and ex post facto clauses of the U.S. and Wisconsin constitutions (see ¶ 32).


    Defamation – Executive and Legislative Privilege – Cap on Damages

    Anderson v. Hebert, 2013 WI App 54 (filed 5 March 2013) (ordered published 24 April 2013)

    Holding: A county administrator was not entitled to absolute immunity (either executive or legislative) for allegedly defamatory statements made to the media and to the county board of supervisors, and the damages cap specified in Wis. Stat. section 893.80(3) limited the liability in this case to $50,000.

    Hebert was the county administrator for Barron County. Anderson was a superintendent in the county’s highway department when an issue arose concerning improper billing of work to the state. Anderson sued Hebert for defamation on the basis of numerous statements Hebert made to the media and to the county board of supervisors at open meetings; the essence of the statements was that Anderson was not only aware of the improper billing procedures but also encouraged and directed them.

    The allegedly defamatory statements were presented to the jury in three separate verdict forms: one dealt with statements to the county board of supervisors on Jan. 14, 2008; one dealt with statements to the board of supervisors on March 17, 2008; and one dealt with statements made to the local media in late January 2008. The jury found for the plaintiff on all counts and awarded damages of $50,000 each on two verdicts and $75,000 on the other. However, the circuit court applied the $50,000 damages cap set forth in Wis. Stat. section 893.80(3) to each verdict, resulting in a total adjusted award of $150,000.

    On appeal, Hebert argued that he was immune from suit based on either an executive or a legislative absolute privilege. Alternatively, Hebert contended that section 893.80(3) limited his total liability to $50,000. In a decision authored by Judge Hoover, the court of appeals affirmed in part and reversed in part.

    First, the court concluded that Hebert was not entitled to absolute executive privilege. Although it is a general rule that absolute privilege is accorded to principal federal or state executive officers in the exercise of their duties, a county administrator is a lower-level executive who would not be entitled to an absolute privilege (see ¶ 9).

    The court also rejected Hebert’s claim that he was protected by an absolute legislative privilege for the statements he made to the county board of supervisors. While there is case law suggesting that an absolute legislative privilege may exist when a witness is subpoenaed to testify, placed under oath, and controlled by the direction of questions from the legislative body (see Vultaggio v. Yasko, 215 Wis. 2d 326, 572 N.W.2d 450 (1998)), these were not the circumstances under which Hebert made his statements.

    “Hebert was reporting to the county board as required by his employment. He was not sworn under oath and his defamatory statements were not offered in response to board questions. More importantly, Hebert spoke not as a witness, but in his executive capacity, and the board was not acting in a legislative manner in the first place. While a county board may act in a legislative capacity, it may also act in a supervisory or administrative capacity, such as by receiving reports during a meeting. Here, the board was conducting a regular meeting and not considering any existing or potential legislation. Hebert cannot claim a legislative privilege before a body that is not legislating” (¶¶ 12-13) (citation omitted).

    Finally, the court addressed Hebert’s claim that Wis. Stat. section 893.80(3) limited his liability to a single $50,000 cap. On this issue the court agreed with him. “Here, Anderson alleged Hebert made various defamatory statements on three separate occasions. Nonetheless, Anderson brought his claims in a single action. Because Wis. Stat. § 893.80(3) provides for one damages cap [in the amount of $50,000], per person, per action, the judgment must be reduced accordingly. We therefore direct the circuit court to reduce the judgment to $50,000” (¶ 23).

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