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    Wisconsin Lawyer
    May 01, 2014

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

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

    Civil Procedure

    Appeal of Special Property Assessment – Sufficiency of Pleadings – Wisconsin’s Liberal Notice-Pleading Rules

    CED Props. LLC v. City of Oshkosh, 2014 WI 10 (filed 6 March 2014)

    HOLDING: Under Wisconsin’s liberal notice-pleading rules, the plaintiff’s complaint was sufficient to notify the defendant city that the plaintiff intended to appeal the entirety of a special property assessment.

    SUMMARY: This case involved special assessments levied by the city of Oshkosh (the city) against a corner lot property, owned by CED Properties LLC (CED), located at the intersection of Jackson Street and Murdock Avenue in Oshkosh. The issue was whether CED’s complaint was sufficient to place the city on notice that CED intended to appeal both the Jackson Street and the Murdock Avenue special assessments for a road construction project at that corner. According to the city, it is typical practice to issue a separate special assessment for each street that abuts a property.

    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.

    In its complaint, CED identified the parcel number of the property and identified the improvement project for which the special assessments were issued as the “Jackson Street – Murdock Avenue intersection improvement project.” However, the complaint referred only to the specific dollar amount of the Murdock Avenue special assessment and failed to include the amount of the Jackson Street assessment. The city contended that CED failed to appeal the Jackson Street assessment within required time limits.

    In a unanimous opinion authored by Justice Crooks, the supreme court concluded that CED’s complaint was sufficient to appeal both special assessments. The court held that Wis. Stat. section 802.02, which governs the general rules of pleading, applies to appeals of special assessments under Wis. Stat. section 66.0703 (see ¶ 27).

    Further, the court found that under Wisconsin’s liberal notice-pleading rules, CED’s complaint “placed the City on reasonable and sufficient notice that it intended to appeal the entirety of the special assessments” (¶ 30). Said the court, “[t]he fact that CED included only the amount of the Murdock Avenue special assessment in its original complaint does not defeat CED’s intention to appeal the entire amount of the special assessments. By listing the parcel number and the name of the improvement project along with a reference to both street names, CED’s original complaint placed the [c]ity on reasonable and sufficient notice that it intended to appeal the entire amount of special assessments levied against its property. To conclude otherwise would hold CED to the type of technical pleading requirements that we have held no longer apply under our rules of civil procedure” (¶ 32).

    Criminal Procedure

    Guilty Plea – Withdrawal – Substantial Prejudice

    State v. Lopez, 2014 WI 11 (filed 7 March 2014)

    HOLDING: The defendant was properly denied permission to withdraw her guilty plea before sentencing. Although the parties conceded she had a fair and just reason for withdrawing the plea, the state met its burden of demonstrating substantial prejudice if the matter were to go to trial instead.

    SUMMARY: Lopez was charged with 22 felony counts of child abuse, for allegedly abusing a child who was approximately 14 at the time of the incidents. The child gave a series of statements that were recorded for use at trial under Wis. Stat. section 908.08. Lopez pleaded guilty to six of the 22 counts and as part of the plea agreement, she testified against her husband. The day after her husband received a long prison sentence, Lopez moved to withdraw her plea before her own sentencing. The state opposed her withdrawal of the plea, contending that it would be substantially prejudiced because the child’s age at the time (over 16) precluded use of her recorded statement under section 908.08.

    The circuit court denied the motion and sentenced Lopez to a long prison term. In an unpublished opinion, the court of appeals reversed. The court of appeals noted that the state had conceded that Lopez had presented a “fair and just reason” for withdrawing her plea, and it held the circuit court erred in finding that the state would be substantially prejudiced.

    The supreme court reversed the court of appeals in an opinion authored by Justice Ziegler. The court addressed “how appellate courts should review a circuit court’s denial of a defendant’s motion to withdraw a plea before sentencing” (¶ 2). The state contended that it was prejudiced by Lopez’s plea withdrawal in three ways. First, it could not use Wis. Stat. section 908.08 to admit the recorded statements; second, the victim’s “faded memory” diluted her testimony; and third, the victim would suffer harm if she were forced to testify (see ¶ 63).

    The court held that the circuit court properly found the victim’s recorded statements otherwise admissible under Wis. Stat. section 908.08. The recording constituted “powerful audiovisual evidence” and had been introduced against Lopez’s husband. The victim’s age, however, affected the recording’s admissibility against Lopez under section 908.08 (see ¶ 77).

    The trial judge also properly found that the state would suffer substantial prejudice if Lopez were permitted to withdraw her plea and proceed to trial (see ¶ 78). The judge had found the recorded statements to be “lengthy, compelling, timely, and credible” (¶ 91) and also determined that the victim’s testimony would be “less compelling” if the recorded statements were inadmissible under Wis. Stat. section 908.08.

    Justice Prosser concurred, joined by Justice Gableman, but wrote separately “to suggest that the fair and just reason rule should be reexamined and revised” to impose a higher burden on defendants seeking to withdraw pleas before sentencing (¶ 111).

    Chief Justice Abrahamson and Justice Bradley wrote separate dissents, and each justice joined the other’s dissent. The Chief Justice argued against Justice Prosser’s proposed revision of the fair-and-just-reason rule. Justice Bradley, mindful of the “appalling facts of this case,” found the record insufficient to support a finding that the state would suffer substantial prejudice if the matter went to trial (¶ 215).

    Affirmances – Lower Court Opinion – Shiffra Process

    State v. Johnson, 2014 WI 16 (filed 26 March 2014)

    HOLDING: The court of appeals decision is affirmed because in an earlier per curiam opinion, a majority of the supreme court could not agree to affirm, reverse, or modify the lower court decision.

    SUMMARY: In July 2013, the supreme court issued a per curiam decision in this case (2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609) that modified and affirmed an unpublished court of appeals decision. The issue concerned whether a sexual assault victim, a minor, who refused to produce her treatment records could testify at trial against her stepfather, the defendant. Both the state and the defense professed uncertainty about how to proceed, so both sides asked for reconsideration.

    In this per curiam decision, the court granted the motion “for reconsideration in order to clarify that this court’s previous per curiam opinion represented a deadlock and should not be read as minority vote pooling” (¶ 1).

    Based on the deadlock, the court of appeals decision stands. “Very simply stated, the court of appeals is affirmed because no three justices [of the five who participated] conclude either (1) that under [State v.] Shiffra [175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993], the victim must produce the records if she is to testify, or (2) that under [State v.] Green [2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298], the victim need not produce the records in order to testify” (¶ 3).

    Justice Bradley concurred in part and dissented in part, joined by Chief Justice Abrahamson. “There was no deadlock” (¶ 16), Justice Bradley wrote, and this latest per curiam opinion is mistaken about the options under Green and Shiffra (see ¶17).

    Justice Prosser and Justice Gableman did not participate.

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