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    Wisconsin Lawyer
    June 01, 2016

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Attorney Fees

    Power of Attorney – Action for Judicial Relief Under Wis. Stat. Section 244.16 – Court Order Limiting Fees to Counsel for Attorney-in-Fact

    Kelly v. Brown, 2016 WI App 31 (filed 16 March 2016) (ordered published 27 April 2016)

    HOLDING: The circuit court lacked the power under Wis. Stat. section 244.16(1) to limit fees for the attorney-in-fact’s counsel in an action to review certain decisions of the attorney-in-fact.

    SUMMARY: Lois Noone held a power of attorney (POA) for her mother, Elizabeth Carpenter. Some of Elizabeth’s other children brought an action to review certain decisions Noone had made on their mother’s behalf. Attorney John M. Kelly defended Noone in the action and was paid more than $25,000 in fees. During the pendency of the action, Elizabeth passed away.

    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 circuit court concluded the underlying action was moot but nonetheless entered an order limiting Kelly’s attorney fees to $6,000 because it believed the matter had been “substantially overlitigated” (¶ 4). The court asserted it had the authority to limit the fees under Wis. Stat. section 244.16(1), which relates to petitions for judicial relief to construe a power of attorney or review an agent’s conduct. Kelly appealed. In a decision authored by Judge Hagedorn, the court of appeals reversed.

    The issue on appeal was whether the circuit court’s circumscription of Kelly’s fees, absent a finding of misconduct or wrongdoing by the agent he was defending, is permissible and “appropriate relief” under Wis. Stat. section 244.16(1). Because the circuit court did not find any misconduct on the part of Noone as the attorney-in-fact, Kelly argued that the court lacked power to grant any relief and erred when it entered an order limiting his fees.

    The court of appeals concluded that the plain language of Wis. Stat. section 244.16(1), especially when viewed in tandem with the remedies provided in Wis. Stat. section 244.17, does not grant the circuit court authority to limit attorney fees in this case (see ¶ 10).

    “The circuit court exceeded its authority under Wis. Stat. § 244.16(1) because its order limiting fees was not aimed at remedying Noone’s actions as attorney-in-fact. The circuit court expressed its conclusion multiple times that the action to review Noone’s conduct was moot. Thus, the court made no findings regarding the scope of the POA or Noone’s conduct. It certainly made no finding that Noone had abused her power or that she used her power to order payment of Kelly’s fees…. Because the court concluded there was no remaining claim after Elizabeth passed away and made no finding that Noone exceeded her authority as an agent, there was nothing for the court to remedy in this case” (¶ 14).

    Criminal Procedure

    Domestic-abuse Repeater – Proof Requirements

    State v. Hill, 2016 WI App 29 (filed 1 March 2016) (ordered published 27 April 2016)

    HOLDING: The circuit court record demonstrates that the defendant properly admitted his status as a domestic-abuse repeater for purposes of the domestic-abuse-repeater enhancement of his sentence.

    SUMMARY: In charges filed against the defendant, the state invoked both the general repeater (habitual-criminality) statute (Wis. Stat. section 939.62) and the domestic-abuse-repeater statute (Wis. Stat. section 939.621). After the defendant’s no-contest plea and sentencing, he moved for postconviction relief, asking the circuit court to vacate the domestic-abuse-repeater enhancement. The circuit court denied the motion. In a decision authored by Judge Stark, the court of appeals affirmed.

    For the domestic-abuse-repeater enhancer to apply, the state had to prove beyond a reasonable doubt, or Hill had to personally admit, that during the 10 years immediately preceding the commission of his present crime he was convicted on two separate occasions of an offense for which a court either imposed a domestic-abuse surcharge under Wis. Stat. section 973.055(1) or waived a domestic-abuse surcharge under Wis. Stat. section 973.055(4). The state conceded that it did not prove Hill’s domestic-abuse-repeater status and thus the issue before the appellate court was whether Hill personally admitted the existence of qualifying prior convictions for purposes of the domestic-abuse-repeater enhancer (see ¶ 11).

    To date, no case has discussed what suffices as an admission that the defendant qualifies as a domestic-abuse repeater. However, the court of appeals found instructive a number of cases that deal with the sufficiency of a defendant’s admission with respect to the general repeater statute (Wis. Stat. section 939.62).

    “[W]e know that, under the ordinary repeater statute, an admission that the defendant qualifies as a repeater may not ‘be inferred nor made by defendant’s attorney, but rather, must be a direct and specific admission by the defendant.’ We also know that it is not enough for the defendant merely to admit he or she is a ‘repeater,’ because that is a legal term” (¶ 12) (citation omitted).

    “Cases applying the ordinary repeater enhancer also instruct, however, that a defendant’s plea to a charge containing the repeater enhancer may constitute an admission to the prior convictions necessary to apply that enhancer” (¶ 13) (citations omitted).

    In this case, the court concluded that “Hill’s no contest plea constitutes an admission that he was twice convicted of an offense for which a court imposed or waived a domestic abuse surcharge during the ten-year period preceding the commission of his [current crime]” (¶ 26). “[B]y pleading no contest to the [current crime], as alleged in Count 1 of the Information, Hill admitted the domestic abuse repeater allegation contained therein…. The totality of the record – in particular, the charging documents and attached CCAP reports, the Plea Questionnaire/Waiver of Rights form, and the plea colloquy – demonstrates Hill was fully aware of the domestic abuse repeater charge and its consequences when he entered his no contest plea” (id.) (internal quotations omitted).

    Postconviction DNA Testing – Public Expense

    State v. Denny, 2016 WI App 27 (filed 23 March 2016) (ordered published 27 April 2016)

    HOLDING: The defendant was entitled to postconviction DNA testing at public expense of items related to the murder he allegedly committed.

    SUMMARY: In the early 1980s, a jury convicted Denny of beating a man to death. Prior unsuccessful appeals raised questions about a third party’s involvement. This appeal arises out of the circuit court’s denial of the defendant’s motion to test certain evidentiary items for the presence of DNA.

    The court of appeals reversed in an opinion authored by Chief Judge Neubauer. The court reviewed the record in some detail, concluding that Denny had shown that the items he sought to test “were relevant to the investigation or prosecution that resulted in his conviction, that it is reasonably probable that he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction, and the testing he seeks was not available at the time of his conviction” (¶ 1).

    The circuit court erred by narrowly restricting Wis. Stat. section 974.07(2), the DNA testing statute, “to inculpatory evidence presented at trial.” Rather, the process extends to all “relevant” evidence. See Wis. Stat. § 904.01 (¶ 37).

    Each of the items was recovered at the crime scene and presented as exhibits or testified to at trial (see ¶ 39). Nor did it matter that Denny was convicted as a party to the crime (see ¶ 41). The court also declined to “graft onto the statute the State’s additional requirement that Denny was required to demonstrate there is ‘a reasonable likelihood that DNA evidence will be found on the evidence to be tested’” (¶ 42). Concerns about contamination or degraded DNA were “premature” (¶ 46).

    DNA testing at public expense carries a “heightened requirement,” one that comports with the “undermine-confidence test” used in other discovery-related matters (¶ 50). This test more properly “focuses on the fairness and reliability of the verdict” (¶ 52). Moreover, the statute “permits assumed exculpatory test results. Given the important statutory goals of exonerating the wrongly convicted and identifying and apprehending perpetrators who may be at large, we conclude that Denny is entitled to the most favorable test results in light of the evidence at trial” (¶ 57). The lack of physical evidence connecting Denny to the scene along with other evidence sufficed to “undermine confidence in the outcome” (¶ 62).

    Judge Hagedorn concurred in part but dissented on grounds that Denny had not shown he was entitled to have the DNA tests performed at public expense.

    Juror Bias – Ineffective Assistance of Counsel

    State v. Tobatto, 2016 WI App 28 (filed 8 March 2016) (ordered published 27 April 2016)

    HOLDING: A juror was not biased and thus trial counsel was not ineffective for failing to have the juror removed.

    SUMMARY: A jury convicted the defendant of stalking-related charges. During jury selection, one juror described past incidents of harassment and expressed concerns about her own objectivity. Trial counsel questioned the juror but did not move to strike her or exercise a peremptory strike against her. In postconviction testimony, trial counsel described why he thought this juror would be a “good juror for our case.” The circuit court ruled that trial counsel was ineffective for failing to remove the juror, who the court found was biased.

    The court of appeals reversed in an opinion, authored by Judge Kessler, that reviewed the issue de novo because the postconviction court had not presided over the trial (see ¶ 14). First, no deference was due the circuit court because the postconviction court had not observed the juror’s “demeanor and disposition”
    (¶ 18). Nothing about the juror’s responses indicated that she had prejudged the case or was unwilling to set aside her prior experiences. In sum, the court was unpersuaded that the juror’s answers “unequivocally revealed subjective bias” (¶ 22). Moreover, trial counsel’s postconviction testimony showed that his decision was not “unreasonable or irrational” and had the advantage of being based on his observations of the juror (¶ 25).

    Dying Declarations – Sufficiency – Sentencing

    State v. Owens, 2016 WI App 32 (filed 1 March 2016) (ordered published 27 April 2016)

    HOLDINGS: The circuit court properly admitted the dying declarations of a shooting victim, sufficient evidence supported the conviction, and the sentence was not unreasonably harsh.

    SUMMARY: The defendant was convicted of reckless homicide and of being a felon in possession of a firearm. A key piece of evidence was the victim’s dying declaration to police, which identified the defendant as the shooter. Other evidence corroborated the hearsay.

    The court of appeals affirmed in an opinion authored by Judge Brash. First, the trial judge properly admitted the victim’s “dying declaration” that identified the defendant pursuant to Wis. Stat. section 908.045(3). The nature of the victim’s injury (a gunshot wound to the chest), his gasping for air, his fading in and out of consciousness, and his eventual death in the ambulance adequately supported the inference that the declarant (the victim) believed he was dying when he spoke with police (see ¶ 13). Further, the court concluded that receipt into evidence of the declarant’s dying declarations did not violate the defendant’s right of confrontation (see ¶ 15).

    Second, sufficient evidence supported the conviction itself. The court’s discussion was necessarily fact intensive, with the court also noting that conflicts among witnesses and prior inconsistent statements went only to the weight of the evidence.

    Third, the imposed sentence was not unduly harsh in light of the seriousness of the offenses and the defendant’s prior criminal record. Trial judges are not required “to specifically discuss why the sentences imposed were required to rehabilitate” the defendant (¶ 29). 


    Duty to Defend – Failure to Aid

    Oddsen v. Henry, 2016 WI App 30 (filed 16 March 2016) (ordered published 27 April 2016)

    HOLDING: The circuit court improperly granted summary judgment to an insurer when the plaintiff alleged that the defendant negligently failed to render aid to a person who died from abusing drugs.

    SUMMARY: Oddsen and Henry were friends. Oddsen consumed a lethal combination of drugs and displayed symptoms of overdose while in a condominium belonging to Henry’s mother. Oddsen died. His estate brought this action against Henry. State Farm, which insured Henry’s mother’s condominium, intervened and denied coverage. The circuit court granted summary judgment to State Farm, finding that public policy and the lack of an “occurrence” precluded coverage (see ¶ 3).

    The court of appeals reversed in a majority opinion authored by Chief Judge Neubauer, which found that disputed issues of fact obviated summary judgment. The alleged “accident” was Henry’s negligent failure to render aid to Oddsen.

    The circuit court found that Henry had done “nothing” but that disputed issues of fact precluded summary judgment (¶ 32). For example, it was not clear what Henry knew about Oddsen’s drug use that night (see ¶ 35).

    State Farm relied on allegations in the complaint, contending that they pointed to either precluded intentional conduct or immune conduct (see ¶ 36). The court likened this to determining indemnity coverage “based on a hypothetical outcome on liability” (¶ 37). No authority supported this approach “when the facts are disputed” (¶ 38). The disputed facts also precluded dismissal based on public policy grounds. Finally, the majority refuted the position taken by the dissent, summarized below, observing that no party had “ever asked for that relief” (¶ 42).

    Judge Reilly dissented. Oddsen’s death was not a covered “occurrence,” and public policy precluded a finding that Henry was the proximate cause of Oddsen’s drug-related death. “Bad choices” by Henry and Oddsen were not a covered “accident.”


    Governmental Immunity – Discretionary Acts – “Known Danger”

    D.B. v. County of Green Lake, 2016 WI 33 (filed 2 March 2016) (ordered published 27 April 2016)

    HOLDINGS: The defendants were immune from liability for their discretionary acts in the investigation of allegations of sexual abuse of the plaintiff, and the “known-danger” exception to immunity was inapplicable because no one actually knew at the time that the perpetrator was dangerous.

    SUMMARY: In 2011, the principal of an elementary school notified the school’s police liaison officer that first-grader D.B. had attempted to kiss and “dry hump” one of his classmates. The principal further advised the officer that D.B. said that his uncle Rob had “told him about humping” and had showed him pictures of naked people on his cell phone. The officer referred the allegations to the county’s social services department, which promptly screened the matter. The screening investigation uncovered allegations that Rob had “touched D.B.’s privates.” However, the county determined that Rob was not a “caretaker” of D.B., and it referred the abuse allegations (per Wis. Stat. sections 48.02(1)(b)-(f) and 48.981(3)(a)3.) to the Berlin Police Department for investigation.

    Police officers interviewed D.B., his mother, and Rob. Ultimately the investigating officer informed D.B.’s mother that he would not be referring the case for criminal charges but would forward the information to the district attorney, who declined to issue charges against Rob.  Two years later D.B. began to exhibit additional behavior problems, and an investigation revealed that Rob had been sexually abusing him for several years. Rob eventually pleaded no contest to first-degree sexual assault of a child.

    D.B., by his mother, brought suit against the county and the police department, alleging that they were negligent in their investigation of sexual assault allegations in 2011, which resulted in the continued sexual assault of D.B. D.B.’s mother claimed that Rob was a danger to D.B. and asserted that the county and the police department should have known he was a danger based on the allegations D.B. made, although D.B.’s mother admits that no one actually knew in 2011 that Rob was a danger.

    The county and the police department responded with motions seeking dismissal on grounds of immunity. The circuit court denied the defendants’ motions, concluding that the known-danger exception to governmental immunity under Wis. Stat. section 893.80(4) applied. In a decision authored by Judge Reilly, the court of appeals reversed.

    Section 893.04(4) of the Wisconsin Statutes provides immunity for the government and its employees for discretionary acts (see ¶ 13). An exception to governmental immunity is the known-danger exception, which “precludes immunity where a known and compelling danger creates a ministerial duty to act on the part of public officers or employees” (¶ 15).

    In this case, the appellate court concluded that “[t]he scope and breadth of the County’s screening/investigation as well as their conclusions as to whether Uncle Rob was a ‘caregiver’ were clearly discretionary acts entitled to immunity” (¶ 11). As for the police department, it performed its ministerial duty by promptly acting in response to the report from the school principal and performing a criminal investigation. However, “[t]he ‘how’ and ‘scope’ of the investigation performed by the Police Department is a discretionary act rather than a ministerial duty” (¶ 17).

    The court further concluded that the known-danger exception was inapplicable in this case. “D.B. admits that no one actually knew D.B.’s uncle was dangerous in 2011 and therefore no ‘known danger’ was present as an exception to immunity” (¶ 2).

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