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    Wisconsin Lawyer
    November 08, 2019

    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

    Civil Procedure

    Class Actions – Class Certification – Revised Statute

    Harwood v. Wheaton Franciscan Servs. Inc., 2019 WI App 53 (filed 20 Aug. 2019) (ordered published 25 Sept. 2019)

    HOLDING: The circuit court properly certified a class action using newly revised Wis. Stat. section 803.08.

    SUMMARY: The plaintiff alleged that Wheaton Franciscan, a health-care provider, violated Wis. Stat. section 146.83(3f) by charging more than $20 in “illegal added fees for copies of their health records.” She moved to certify a class consisting of others, like her, who had paid the allegedly excessive fees during the six years before her filing (see ¶ 1). The circuit court ruled in the plaintiff’s favor and certified a class. With the parties’ consent, the circuit court applied Wis. Stat. section 803.08, a revised class-certification rule that went into effect after this action was filed. The revised statute directs Wisconsin courts to look to federal case law for guidance (see ¶ 5).

    The court of appeals affirmed in an opinion authored by Judge Brennan. The circuit court’s ruling was discretionary (see ¶ 41). Here the circuit court judge reasonably decided the issues based on the law and facts presented to her.

    Wheaton Franciscan did not challenge any findings of fact (see ¶ 46). It did, however, raise four objections, which the court of appeals systematically rejected. First, the circuit court judge carefully applied the law to the facts as required by state and federal class-action law. The record was “replete with evidence,” including the judge’s 11-page order, that she had applied proper legal standards (¶ 51).

    Second, the definition of the class conformed to applicable case law. The judge incorporated the language from the applicable statute (Wis. Stat. section 146.83). A state case cited by Wheaton Franciscan (Moya v. Aurora Healthcare Inc., 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405) did not control.

    Third, the judge’s findings on “numerosity, commonality, typicality, and adequacy” were reasonable based on the record (¶ 54). Each of these elements was considered in turn.

    Fourth, federal case law that Wheaton Franciscan relied on did not require additional discovery in this case before certification. The cited cases involved a “district court’s too-hasty ruling.” Here the circuit court judge acted prudently and properly (¶ 63).

    Criminal Procedure

    Jury Selection – Batson Challenge to Prosecutor’s Peremptory Strikes

    State v. Sanders, 2019 WI App 52 (filed 7 Aug. 2019) (ordered published 25 Sept. 2019)

    HOLDING: The defendant failed to establish that the prosecutor had racially discriminatory intent or purpose in striking African-American jurors from the jury panel.

    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.

    SUMMARY: The defendant went to trial on two counts of delivering heroin. At the conclusion of jury selection, the prosecutor exercised five peremptory strikes. Two of those strikes removed the only two African-American jurors on the panel. The defendant made an immediate Batson objection alleging that these two jurors were struck because of their race. The prosecutor responded that she struck these jurors, as well as another person, because they all “expressed having prior bad experiences with the police … and seemed to express feelings based upon their personal experiences of not trusting law enforcement and maybe looking more skeptically at law enforcement testimony than other witnesses” (¶ 9).

    The circuit court found the prosecutor’s explanation to be race neutral, and it denied the defendant’s challenge to the prosecutor’s use of peremptory strikes. The jury convicted the defendant on both counts. In a majority decision authored by Judge Gundrum, the court of appeals affirmed.

    To succeed on his claim that the Equal Protection clause was violated by the prosecutor’s exercise of peremptory strikes, the defendant needed to demonstrate that the prosecutor’s decision to strike the two African-American jurors was based on a racially discriminatory intent or purpose. See Batson v. Kentucky, 476 U.S. 79 (1986); State v. Lamon, 2003 WI 78, 262 Wis. 2d 747, 664 N.W.2d 607.

    The appellate court concluded that the defendant failed to meet this burden. “Bias against law enforcement and/or the criminal justice system more generally is a legitimate and very understandable reason for the State, when given the opportunity, to strike a potential juror” (¶ 11) (citation omitted).

    “The prosecutor here struck all four of the potential jurors who appeared to harbor some level of bias against law enforcement officers or the criminal justice system more generally – two were African-American, two were not. While each potential juror ultimately indicated he/she could fairly judge the evidence in the case, based upon the totality of the voir dire discussion, we see no error in the circuit court’s determination that the prosecutor had a legitimate, race-neutral reason for striking [the African-American jurors] from the jury and did not act with racially discriminatory intent. That [the African-American jurors] alleged that their prior experiences with law enforcement may have involved discriminatory intent does not detract from the prosecutor’s legitimate, nondiscriminatory concern about potential bias against the State’s case in this wholly unrelated proceeding” (¶ 12).

    The court of appeals concluded its decision as follows: “While we recognize that [the African-American jurors struck by the prosecutor] were the only two African-American members of the jury panel, as our supreme court noted in Lamon, the rule ‘is that the Equal Protection Clause is not violated simply because there is a racially discriminatory or a disparate impact. Proof of racially discriminatory intent or purpose [by the prosecutor] is required to show a violation of the Equal Protection Clause’” (¶ 13) (citation omitted).

    Judge Reilly filed a dissenting opinion.


    Denny Evidence – Other Act Evidence

    State v. Griffin, 2019 WI App 49 (filed 21 Aug. 2019) (ordered published 25 Sept. 2019)

    HOLDING: The circuit court properly excluded evidence that a third party caused the child victim’s death and properly admitted “other act” evidence against the defendant.

    SUMMARY: The defendant was convicted of first-degree reckless homicide and several counts of child abuse for causing the death of a 14-month-old child and injuries to the child’s twin. The circuit court excluded evidence that a third party, the children’s mother, caused the injuries. It did, however, admit other act evidence proffered by the state and offered to show “abusive interactions between [the defendant] and the twins” (¶ 18).

    In an opinion authored by Judge Reilly, the court of appeals affirmed both the exclusion of the third-party defense and the admissibility of the other act evidence. Evidence that a third party, not the defendant, committed the crime is governed by the Denny doctrine [see State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984)], which was applied in State v. Wilson, 2015 WI 48, 362 Wis. 2d 193, 864 N.W.2d 52.

    Denny’s “legitimate tendency” standard requires proof that “`the third party had motive, opportunity, and a direct connection to the crime’” (¶ 7). Although the defendant demonstrated the mother’s motive and opportunity, the court of appeals said that the circuit court properly ruled that the defendant failed to show a “direct connection.”

    Specifically, allegations of past physical abuse by the mother did not provide the necessary direct connection. “At most, … the mother kicked one of the twins in the leg and hit them with a hanger and a belt, which a doctor opined would not have caused the damage suffered by the twins” (¶ 16).

    The circuit court properly admitted the state’s other act evidence “consisting of cell phone videos depicting allegedly abusive interactions between [the defendant] and the twins.” The judge admitted two of the three proffered videos to show motive, intent, plan, and “context” (¶ 20). The court of appeals held that the circuit court’s decision conformed to the three-step test set forth in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), observing that the videos’ content was “less serious” than the offense itself and not similar enough to the charged offense to create unfair prejudice (¶ 22). A cautionary instruction alleviated any unfairness as well (see ¶ 23).


    Gambling Machines – “Cell Phone Charging Machines”

    Quick Charge Kiosk LLC v. Kaul, 2019 WI App 51 (filed 13 Aug. 2019) (ordered published 25 Sept. 2019)

    HOLDING: The “cell phone charging machines” that are the subject of this litigation are illegal gambling machines.

    SUMMARY: The circuit court granted the attorney general’s motion for summary judgment declaring that Quick Charge’s “cell phone charging machines” (hereinafter machines or devices), also referred to as cell phone charging kiosks, constitute illegal gambling machines. The machines resemble video gambling machines commonly found in casinos or taverns, and they function in the same manner; they include an electronic device charging port that fits portable electronic devices, including mobile phones.

    The devices work as follows: “When a customer puts one dollar into the Machine, that customer receives 100 credits to play the video chance game, and one minute of charging time. A customer who charges an electronic device cannot continue to play the game after the expiration of the charging time, but the customer may cash out any remaining credits by printing out a paper receipt using the Machine’s printer and redeeming the receipt for cash at the Machine’s site. The credits are redeemable at the ratio of one dollar per 100 credits, the same rate at which the credits are acquired. Thus, a customer need not use any game credits while charging a phone and may redeem all the credits for cash when the charging time expires” (¶ 3).

    “For instance, a customer may deposit one dollar in exchange for one minute of charging time and 100 game play credits. When the one minute of charging time expires, the customer may redeem all 100 game play credits for one dollar, effectively receiving one free minute of cell phone charging. A customer may also play the video chance game without connecting an electronic device for charging. The Machines also have a random number generator that determines if a player wins and, if so, the amount the player wins” (id.).

    In an opinion authored by Judge Dugan, the court of appeals affirmed the circuit court’s grant of summary judgment in favor of the attorney general. After carefully examining a variety of statutory provisions the parties relied on, the appellate court concluded inter alia that the devices are gambling machines (not lotteries as contended by their owner) and that they are illegal gambling machines under Wis. Stat. section 945.01(3) (see ¶ 36).

    Worker’s Compensation

    Temporary Disability Benefits – Actual Wage Loss Attributable to Work-related Injury

    Mueller v. LIRC, 2019 WI App 50 (filed 27 Aug. 2019) (ordered published 25 Sept. 2019)

    HOLDING: The petitioner was not entitled to worker’s compensation temporary disability benefits because she retired from her employment for reasons unrelated to her work-related injury and her attempts to reenter the labor market were not impaired by her work-related injury.

    SUMMARY: Mueller worked for many years on the finishing line at Ashley Furniture in a position that required her to lift heavy objects. Four months after injuring an arm and shoulder at work, she retired. Three months after retiring, she underwent surgery. She reached an end of healing one year after the surgery. During the healing period, she took a part-time position at a café working 6-14 hours per week doing such tasks as washing dishes and cooking.

    Mueller later submitted a hearing application to the Department of Workforce Development seeking temporary total disability (TTD) benefits from the date of her retirement until the end of the healing period following her surgery. An administrative law judge (ALJ) dismissed her claims on a finding that she did not retire because of her work injury. The ALJ’s dismissal was affirmed by the Labor and Industry Review Commission (LIRC) and by the circuit court. In a decision authored by Judge Seidl, the court of appeals affirmed as well.

    One form of compensation in the worker’s compensation program is known as temporary disability benefits. See Wis. Stat. § 102.43. The court of appeals concluded that, under this statute, an employee must show that he or she sustained an actual wage loss attributable to a work injury to be entitled to temporary disability benefits. Applying that standard, the court concluded that LIRC did not err in dismissing Mueller’s claim because, as LIRC found, Mueller voluntarily retired from Ashley Furniture for reasons entirely unrelated to her injury, and her later attempts to reenter the labor market were not impaired by her work-related injury.

    Therefore, any wage loss Mueller suffered was solely attributable to her own choices, not to her work-related injury (see ¶ 2). This included losses associated with her part-time employment at the café as to which the LIRC made a finding that it was Mueller’s own choice – not any injury-related concern – that dictated her workload at the café (see ¶ 35).

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