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    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

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    Criminal Procedure

    Ineffective Assistance of Counsel – Objections

    State v. Breitzman, 2017 WI 100 (filed 1 Dec. 2017)

    HOLDING: Trial counsel was not ineffective for 1) failing to object to a disorderly conduct charge on free speech grounds, 2) selecting particular content for the opening statement, and 3) not objecting to other-act evidence.

    SUMMARY: The defendant was convicted on several counts of child neglect and disorderly conduct. In postconviction proceedings, the court acquitted her of one count of neglect based on insufficient evidence but denied her other motions. In an unpublished opinion, the court of appeals affirmed, rejecting the defendant’s claims of ineffective assistance of counsel and insufficient evidence as to other counts.

    The supreme court affirmed in a majority opinion, authored by Justice Ziegler, that addressed three claims of ineffective assistance of counsel. First, trial counsel was not deficient for failing to object to the disorderly conduct charge on grounds that the defendant’s profane outburst in a private setting fell within her right to free speech. The law on this point is “unsettled”; thus, counsel had no duty to object (¶ 49).

    Second, trial counsel’s “theory of reasonable parental discipline” in his opening statement reflected counsel’s “reasonable expectations” of the evidence and were rationally based on his discussions with the defendant; hence, they constituted a “reasonable trial strategy” (¶ 64).

    Third, counsel’s decision to not object to other-act evidence also constituted reasonable trial strategy (see ¶ 75). The defendant initially agreed to the strategy of reasonable parental discipline and cannot now complain because it proved unsuccessful (see ¶ 77).

    Justice Abrahamson concurred but wrote separately to underscore that the majority opinion is not commenting on the merits of the free speech issue. She also contended that the “unsettled law” doctrine is insufficiently protective of defendants’ rights in ineffective assistance of counsel challenges (¶ 94).

    Small Claims Actions

    Civil Theft Claims – Cap on Actual Damages – Exemplary Damages – Attorney Fees – Double Taxable Costs

    Estate of Miller v. Storey, 2017 WI 99 (filed 30 Nov. 2017)

    HOLDINGS: See summary below of the numerous holdings in this case.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: In a small claims action filed by the estate of Stanley G. Miller, a jury found defendant Storey liable under Wis. Stat. section 895.446 (2013-14) for theft of money from her elderly uncle when she cared for him in the last year of his life. After the verdict, the circuit court awarded the estate actual damages of $10,000 under Wis. Stat. section 799.01(1)(d), exemplary damages of $20,000 under Wis. Stat. section 895.446(3)(c), attorney fees of $20,000 under Wis. Stat. section 895.446(3)(b), and double taxable costs under Wis. Stat. section 807.01(3) (the statute authorizing double costs when the plaintiff’s recovery is more favorable than a settlement offer).

    Storey appealed and, in a published decision, the court of appeals reversed. See 2016 WI App 68. In a majority opinion authored by Justice Ziegler, the supreme court affirmed in part and reversed in part the court of appeals’ decision.

    The first issue the supreme court considered was whether the plaintiff’s statutory civil theft claim under Wis. Stat. section 895.446 was an “action based in tort” under Wis. Stat. section 799.01(1)(cr) and thus subject to the $5,000 small claims limit or was an “other civil action” under Wis. Stat. section 799.01(1)(d) and thus subject to the $10,000 small claims limit.

    The estate argued that it was an “other civil action” because the civil theft claim arose from a statutorily created right to enforce the criminal law. The defendant contended that the plaintiff’s claim was an “action based in tort” because the elements required to prove the civil theft claim are similar to the elements of the common law tort of conversion (see ¶ 32).

    The court held that “Wis. Stat. § 895.446 is an ‘other civil action’ under Wis. Stat. § 799.01(1)(d) based on fundamental principles of statutory interpretation and the established distinctions between statutory civil claims and common law tort claims. Because we conclude that § 895.446 is an ‘other civil action,’ we consequently conclude that the damages cap is $10,000 under § 799.01(1)(d) and that double costs are authorized under Wis. Stat. § 807.01(3)” (¶ 5).

    The court next considered whether attorney fees are within the meaning of “costs of investigation and litigation” under Wis. Stat. section 895.446(3)(b). It concluded that “attorney fees are included within the meaning of ‘costs of investigation and litigation’ under Wis. Stat. § 895.446(3)(b) because Stathus v.Horst, 2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165, a judicial interpretation by the court of appeals, has long stood for that proposition, and the legislature, despite taking other, subsequent action in that very statute, has not legislated so as to alter that interpretation” (¶ 6).

    The court also considered the award of exemplary damages. Specifically, the supreme court determined whether the court of appeals erroneously exercised its discretion in considering whether the circuit court erred when it awarded exemplary damages on the estate’s post-verdict motion. The supreme court concluded that “the court of appeals did not err when it considered the issue of exemplary damages, in part because the issue raised was a legal question, the parties thoroughly briefed the issue, and there were no disputed issues of fact” (¶ 7).

    The supreme court also held that the court of appeals correctly reversed the circuit court on its award of exemplary damages because the circuit court, not the jury (the trier of fact), made the award. Said the supreme court:
    “[A]lthough the judge initially determines whether exemplary damages are an appropriate issue to be presented to the trier of fact, it is within the discretion of the trier of fact to determine whether to actually award exemplary damages and, if so, in what amount” (¶ 69).

    Justice Kelly, joined by Justice Rebecca Grassl Bradley, filed an opinion concurring in part and dissenting in part. Justice Abrahamson filed a dissenting opinion.

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