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    Wisconsin Lawyer
    May 01, 2017

    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).

    Daniel D. Blinka & Thomas J. Hammer

    Civil Procedure

    Appointment of Referee – Limitations on Powers of Referee

    State ex rel. Universal Processing Servs. of Wis. LLC v. Circuit Court, 2017 WI 26 (filed 29 March 2017)

    HOLDINGS: See the text below for the numerous holdings in this lengthy opinion.

    SUMMARY: This matter was before the supreme court on a petition for supervisory writ. The petitioner asked the court to exercise its constitutional authority to vacate a Milwaukee County Circuit Court order appointing a referee and to vacate allegedly unlawful orders of the referee that were issued pursuant to the court order (known as a “reference” or “order of reference”) appointing the referee and describing his powers.

    The order of reference gave the referee broad powers that included but were not limited to managing discovery; it was issued after the circuit court expressed its frustration with the cumbersome discovery process (50,000 documents) in this litigation and what it described as “discovery bickering” between the parties. The order also granted the referee authority over nearly all aspects of the case, including the power to initially decide all motions, including dispositive motions. The circuit court retained the power to modify or set aside a referee’s ruling, but could do so only if the ruling were based on an erroneous exercise of discretion.

    In a majority decision authored by Justice Abrahamson, the supreme court first addressed whether the petition for a supervisory writ was properly before the supreme court. The court concluded that the “petition for a supervisory writ does not meet the requirements set forth in Wis. Stat. § (Rule) 809.71. The petition was not first filed in the court of appeals and [the petitioner] has failed to show that it was impractical to file the petition in the court of appeals” (¶ 5). Nevertheless, the court chose to exercise its constitutional superintending authority under article VII, section 3(2) of the Wisconsin Constitution to determine the validity of the order of reference.

    Turning its attention to the order of reference itself, the court noted that when “[u]sed properly, a circuit court’s power to appoint and assign functions to a referee is not unconstitutional and allows circuit courts to provide more efficient dispute resolution to litigants” (¶ 59).

    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.

    However, in this case “the Order of Reference enables the referee to hear and decide all motions filed, whether discovery or dispositive, subject to review under the standard of erroneous exercise of discretion. We conclude that this Order impermissibly delegates constitutional ‘judicial power’ to a referee, prohibiting the circuit court from freely rejecting the referee’s rulings and conducting its own independent inquiry and reducing the function of the circuit court to that of a reviewing court” (¶ 77).

    The supreme court further concluded that “the provision in the circuit court’s Order of Reference that the circuit court’s review of the referee’s ‘rulings’ shall be based on the referee’s ‘erroneous exercise of discretion’ contravenes the constitution, statutes, and rules regarding circuit court and appellate court authority and practice” (¶ 88).

    The court did not decide whether the order of reference contravened the parties’ right to “obtain justice freely, and without being obliged to purchase it,” guaranteed by Wis. Const. article I, section 9, or to due process of law, guaranteed by Wis. Const. article I, section 1, or the petitioner’s right to a jury trial, guaranteed by Wis. Const. article I, section 5. However, it did note that “reference to a referee is the exception, not the rule; that there are constitutional limits on the powers of a referee; and that a reference can jeopardize a litigant’s access to the justice system, due process, and right to a jury trial. The Wisconsin Constitution requires the state to provide a judicial system for the resolution of disputes…. We express our concern that the use of referees increases the costs of litigation and may cause delay and, in certain cases, may deprive litigants of access to courts” (¶ 5).

    Finally, the court determined that “[t]o the extent the parties have agreed to abide by an order or ruling of the referee relating to discovery, that ruling or order shall stand. To the extent either party has objected to an order or ruling of the referee relating to discovery, that ruling or order shall be vacated. Any ruling or order of the referee on any dispositive motion is vacated. Either party may request substitution of the judge under Wis. Stat. §§ 801.58(1) and (7)” (id.).

    Justice Ziegler filed an opinion concurring in part and dissenting in part. Justice Rebecca G. Bradley filed an opinion concurring in part and dissenting in part that was joined in by Justice Kelly.

    Criminal Procedure

    Suppression Hearings – Right of Confrontation

    State v. Zamzow, 2017 WI 29 (filed 6 April 2017)

    HOLDING: The right of confrontation under the Sixth Amendment does not apply at pretrial suppression hearings.

    SUMMARY: In this criminal operating while intoxicated (OWI) case, the defendant filed a motion to suppress all evidence obtained during the stop that led to his arrest, claiming the officer who stopped him lacked reasonable suspicion to do so. Before the court could hold a suppression hearing, the officer died.

    During the suppression hearing the court relied on evidence from the officer’s dashboard camera, which included an audio recording of the officer explaining to the defendant the reason for the stop (crossing the center line). Defense counsel objected to the admission of the officer’s audio statements, arguing that the inability to cross-examine the officer denied the defendant his right to confront a witness against him. The circuit court denied the suppression motion.

    In a published decision, the court of appeals affirmed. See 2016 WI App 7. Agreeing with the circuit court, the court of appeals concluded that the Confrontation Clause simply does not apply to pretrial hearings such as the suppression hearing at issue in this case (see ¶ 8). Additionally, the court of appeals rejected the defendant’s claim, first raised in his postconviction motion, that admitting the audio statements denied him due process of law.

    In a majority decision authored by Justice Rebecca G. Bradley, the supreme court affirmed the court of appeals. It concluded that the Confrontation Clause does not apply during suppression hearings.

    “At common law, the right to confront witnesses developed as a mechanism for assessing witness reliability in the presence of the fact-finder, and several decisions by the Supreme Court indicate the confrontation right protects defendants at trial – when guilt or innocence is at stake. Presenting live witnesses at a suppression hearing undoubtedly strengthens testimony offered by the State, but when cross-examination of a witness becomes impossible, the Confrontation Clause does not prohibit use of valuable evidence, such as the video at issue here” (¶ 24) (citations omitted).

    Accordingly, “[i]n light of the longstanding principle that the Confrontation Clause protects a trial right, we conclude the Confrontation Clause does not require confrontation of witnesses at suppression hearings. By relying on [the officer’s] recorded audio statement to make a reasonable suspicion determination, the circuit court did not deny [the defendant] his right to confrontation under the Sixth Amendment” (¶ 27).

    The court further concluded that admission of the officer’s audio statement at the suppression hearing did not deny the defendant due process of law. Recognizing that the distinction between trials and pretrial hearings applies in the due process context, the court determined that “[a]ny right to confrontation and cross-examination implicated by the Due Process Clause is therefore relaxed at a suppression hearing” (¶ 29). The circuit court’s reliance on [the deceased officer’s] hearsay statement did not offend the reduced standard for due process of law required at a suppression hearing” (¶ 30).

    Justice Abrahamson filed a dissenting opinion that was joined in by Justice Ann Walsh Bradley.

    Trials – Jury Selection – Ineffective Assistance

    State v. Lepsch, 2017 WI 27 (filed 31 March 2017)

    HOLDING: Trial counsel was not ineffective on any one of numerous grounds in the selection of the jury.

    SUMMARY: The defendant was convicted of killing two people during an armed robbery. The circuit court rejected his postconviction motions challenging the jury’s selection on ineffective-assistance-of-counsel grounds. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed in a majority opinion authored by Justice Ziegler. All alleged errors were presented through the filter of ineffective assistance of counsel. First, the court held that there was no evidence that any prospective juror was subjectively or objectively biased (see ¶ 27). The discussion is necessarily fact intensive, although the court also concluded that Wisconsin law is in line with federal cases (see ¶ 36). Second, the clerk properly swore in the prospective jurors outside the defendant’s presence. The court rejected the defendant’s “expansive” view of voir dire as including this preliminary oath (see ¶ 41).

    Third, the oath was properly administered by the court clerk instead of a judge (see ¶ 42). Fourth, even assuming the defendant had a statutory or constitutional right to be present when the oath was administered, any error was harmless (see ¶ 47). Fifth, for similar reasons, trial counsel’s failure to object on any such ground was harmless (see ¶ 48).

    Sixth, by failing to object at trial, the defendant forfeited his claim that he was denied his right to a public trial (by the swearing in of jurors outside his presence). Seventh, the circuit court’s award of six peremptory challenges to each side, instead of the seven required, was not error because there was no showing that any juror was biased (see ¶ 57).

    Justice Abrahamson, joined by Justice Ann Walsh Bradley, concurred, writing separately to discuss the “tension” between Wisconsin law on juror bias and federal cases on the Sixth Amendment right to an impartial trial (see ¶ 63). The concurrence contended that Wisconsin law should be “harmonized” with Patton v. Young, 467 U.S. 1025 (1984) (¶ 65).


    Credibility – Expert Testimony

    State v. Maday, 2017 WI 28 (filed 5 April 2017)

    HOLDINGS: Testimony by a social worker that her interview with a child victim showed no “coaching” did not violate the rule that witnesses cannot comment about another witness’s credibility; defense counsel was not ineffective for not objecting to testimony about the defendant’s training in “use of force.”

    SUMMARY: The defendant was convicted of three counts of sexual assault of an 11-year-old girl. The girl first reported the assaults in a letter to her mother, an acquaintance of the defendant, and then made further statements to her mother and police officers. At the request of the law enforcement agency, a social worker interviewed the victim using a technique called a “cognitive graphic interview,” which is purportedly designed to ferret out fabrication and coaching. At trial, the social worker testified that she observed no indication of coaching or dishonesty in her interview.

    In an unpublished opinion, the court of appeals reversed the conviction, finding that the social worker’s testimony violated the Haseltine rule, which forbids any witness, lay or expert, from testifying about whether another witness is lying or truthful or whether a crime was committed. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Gableman. The majority found no Haseltine violation because the social worker testified only to her “observations,” not opinions. Prior case law condemned questions asking whether the victim’s testimony was the “product” of suggestibility or coaching (¶ 38). Finally, trial counsel was not ineffective for failing to press an objection to testimony about defendant’s job-related training in firearms and use of force, which was apparently relevant to the child’s fears.

    Justice Rebecca G. Bradley concurred. She contended, however, that the defendant’s issues should have been assessed only under the ineffective-assistance-of-counsel standard rather than the merits of the Haseltine issue, an approach that she explained was “problematic” on several levels (¶ 64).

    Justice Ann Walsh Bradley, joined by Justice Abrahamson, dissented. The majority, they said, “misconstrue[d]” precedent in a way that distorts and expands the very limited exceptions to the Haseltine rule. While case law establishes that coaching testimony may fall within a Haseltine exception, any such foundation was missing here. In a compelling footnote, the dissent observed that the social worker’s expert opinions had not been scrutinized under Wis. Stat. section 907.02, the Daubert standard, despite the robust debate about the reliability of much social science evidence (see ¶ 88 n.1).

    Sexually Violent Persons

    Discharge Hearings – Risk

    State v. Talley, 2017 WI 21 (filed 9 March 2017)

    HOLDING: The trial court properly found that the Wis. Stat. chapter 980 petitioner failed to meet the criteria for holding a discharge hearing.

    SUMMARY: Based on his record of prior sexual offense, Talley was committed in 2005 as a sexually violent person under Wis. Stat. chapter 980. In 2012, he filed a petition for a discharge hearing, which the trial court denied on grounds that he had not presented adequate proof entitling him to such a hearing. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed in an opinion authored by Justice Rebecca G. Bradley. The opinion reviews Talley’s past record as revealed in earlier, unsuccessful discharge efforts. This action turned on whether the trial court properly denied his petition under Wis. Stat. section 980.09(2), which denies hearings when “the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment” (¶ 28). Talley’s 2012 petition rested on three facts, namely, that he 1) socialized more with peers, 2) joined a “fitness group,” and 3) had more interaction with his family (¶ 29).

    The court held that none of these facts “impact[ed]” the criteria for commitment (¶ 31). “Nothing in the record suggests that the advent of the three facts proffered here may (or could) cause a factfinder to now conclude that Talley’s mental illness will no longer make it more likely than not that he will commit a sexually violent offense” (¶ 32).

    Justice Abrahamson concurred, joined by Justice Ann Walsh Bradley. They did not join the court’s opinion because it “strays” from the language of Wis. Stat. section 908.09(2) and fails to provide the “practical” guidance needed by trial courts (¶ 41).

    Justice Ziegler, joined by Justice Gableman, also concurred but wrote separately to “clarify” the court’s opinion and stress that they joined it only to the extent it is “interpreted consistent with this concurrence” (¶ 59). They were concerned that the court’s opinion demanded more of a petitioner than Wis. Stat. section 980.09(2) requires (see ¶ 61).


    Governmental Immunity – Private Contractors

    Melchert v. Pro Electric Contractors, 2017 WI 30 (filed 7 April 2017)

    HOLDING: A private contractor was entitled to governmental immunity for damage done while carrying out the government’s specifications.

    SUMMARY: Pro Electric severed a sewer lateral while working on a governmental contract, causing flooding damage in the neighborhood. The plaintiffs sued Pro Electric, which admitted causing the damage but also asserted that it was carrying out the Wisconsin Department of Transportation’s (DOT’s) construction design. The circuit court granted summary judgment in favor of Pro Electric on grounds of governmental immunity. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed the court of appeals in an opinion authored by Justice Gableman. “Pro Electric is immune from liability for severing the sewer lateral, because the DOT Project Plan provided reasonably precise specifications for Pro Electric’s augering, Pro Electric severed the sewer lateral by adhering to those specifications, and DOT adopted the specifications in the exercise of its legislative, quasi-legislative, judicial, or quasi-judicial functions” (¶ 24).

    In sum, “DOT – not Pro Electric – made the decision to auger that particular hole in that particular place, and all of the evidence suggests that Pro Electric severed the sewer lateral not because of the manner in which Pro Electric chose to do the augering, but simply because the Project Plan directed Pro Electric as to exactly where and how to auger” (¶ 30).

    A second allegation accused Pro Electric of backfilling its excavation without inspecting the sewer lateral for damages so that repairs could be made. Here, Pro Electric was not acting as the DOT’s agent and thus could not assert governmental immunity (see ¶ 34). Nonetheless, the trial court properly awarded summary judgment to Pro Electric because there was no material issue of fact showing that the contractor had violated its statutory duties (see ¶ 43).

    Justice Abrahamson concurred. She concluded that the court of appeals had correctly decided the case and the supreme court should have dismissed the petition as improvidently granted (see ¶ 46). Two of the issues involved well-settled law on governmental immunity. A third issue, relating to “Digger’s Hotline” statutes, was resolved on summary judgment. She cautioned that any wholesale reconsideration of the governmental immunity cases was not before the court in this case.

    Justice Rebecca G. Bradley, joined by Justice Kelly, dissented. They asserted that the majority opinion “perpetuates a non-textual interpretation of § 893.80(4)” that requires reconsideration of the entire line of cases (¶ 52). The current cases, they allege, traduce separation of powers and introduce “absurdities” needed to maintain their unfounded distinctions (¶ 65).

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