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    Wisconsin Lawyer
    May 17, 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

    Criminal Law

    Solicitation of First-degree Reckless Injury – Solicitation of First-degree Recklessly Endangering Safety – Multiplicity

    State v. Kloss, 2019 WI App 13 (filed 21 Feb. 2019) (ordered published 27 March 2019)

    HOLDINGS: 1) The crime of solicitation of first-degree reckless injury exists under Wisconsin law. 2) Convictions for both solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety are multiplicitous. 3) The evidence adduced at trial was sufficient to support a conviction for solicitation of first-degree reckless injury.

    SUMMARY: After a bench trial, the defendant was convicted of solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety. On appeal he argued that 1) solicitation of first-degree reckless injury does not exist as a crime under Wisconsin law, 2) the convictions for both solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety are multiplicitous and therefore one of those convictions must be reversed, and 3) the evidence presented at trial was insufficient to support either conviction. In an opinion authored by Judge Kloppenburg, the court of appeals affirmed in part and reversed in part.

    First, the appellate court concluded that solicitation of first-degree reckless injury is a crime under Wisconsin law. The solicitation statute provides that “whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class H felony.” Wis. Stat. § 939.30(1). The first-degree reckless injury statute provides that “[w]hoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.” Wis. Stat. § 940.23(1)(a). The defendant argued that it is not possible for a person to intend that another person succeed in causing great bodily harm by reckless conduct.

    The appellate court disagreed. “We see no reason why a solicitor cannot intend, at the time he or she solicits reckless conduct from another, that great bodily harm result from the solicitee’s reckless conduct. It may be true that a solicitor cannot know with certainty at the time of the solicitation whether an injury will in fact result from the solicitee’s conduct – such uncertainty is inescapable in an inchoate crime such as solicitation. But no level of certainty is required to form a purpose to cause a particular result – that is, an intent that a result take place” (¶ 10).

    Second, the appellate court concluded that convictions for both solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety are multiplicitous. The crimes are identical in law: The underlying crimes the defendant was accused of soliciting (first-degree reckless injury and first-degree recklessly endangering safety) have a greater inclusive-lesser included relationship (see ¶ 22), and it is impossible to prove solicitation of first-degree reckless injury without also proving solicitation of first-degree recklessly endangering safety (see ¶ 24).

    In this case the crimes were also identical in fact. To prove both charges the state relied on a single course of conduct (the defendant’s placing numerous phone calls to his wife from jail instructing her to shoot a gun through the front door if any police officers came to their house). Accordingly, the appellate court reversed the defendant’s conviction for the lesser included offense of solicitation of first-degree recklessly endangering safety.

    Third, on the facts of this case, the appellate court concluded that there was sufficient evidence to support the conviction for solicitation of first-degree reckless injury. The defendant argued that no reasonable factfinder, looking at the circumstances, could find that he was serious when he urged his wife to shoot any officers who approached their home because no reasonable person in his position would think that the police would ever approach their home. He pointed to evidence showing that he was aware that his calls to his wife were monitored and argued that he therefore knew that it was highly improbable that police would come to his house.

    The court responded as follows: “This argument fails because, at least generally speaking, the unlikelihood that the solicitee will have the opportunity to commit the crime does not negate the intent of the solicitor. The intent question is whether, if circumstances do occur giving the solicitee an opportunity to commit the crime, the defendant actually intends that the solicitee commit the crime. Here, it was far from impossible that the police might for some reason approach the Kloss home. Thus, a fact finder could readily find that, based on the phone call evidence, if the police did come to the Kloss home, Kloss actually intended that [his wife] shoot the police” (¶ 14).

    The appellate court remanded the matter for the defendant to be resentenced on the conviction for solicitation of first-degree reckless injury.

    Criminal Procedure

    Guilty Pleas – Ineffective Assistance of Counsel – Failure to Establish That Defendant Would Not Have Pleaded Guilty and Would Have Gone to Trial

    State v. Jeninga, 2019 WI App 14 (filed 21 Feb. 2019) (ordered published 27 March 2019)

    HOLDING: In his motion seeking to withdraw his guilty plea on the basis of ineffective assistance of counsel, the defendant failed to establish a reasonable probability that he would not have pleaded guilty and would have gone to trial but for his lawyer’s allegedly deficient performance.

    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: Jeninga was charged with one count of repeated sexual assault of a child and in a separate case with 10 counts of possession of child pornography. Over the defendant’s objection, the circuit court joined the cases for trial. Pursuant to a plea negotiation, the defendant pleaded guilty to an amended charge of second-degree sexual assault of a child and one count of possessing child pornography.

    After the defendant was sentenced, he filed a motion to withdraw his plea, alleging that his trial counsel was ineffective for not moving to suppress evidence of child pornography that was found on his cell phone. In the postconviction motion, counsel alleged that the defendant “will testify” that, had a suppression motion been filed and the evidence suppressed, “he would not have entered any plea” and would have gone to trial (¶ 6). The defendant did not submit an affidavit in support of his postconviction motion, and he did not testify at the Machner hearing at which his motion was litigated. The circuit court denied the postconviction motion.

    In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed. When claiming that counsel provided ineffective assistance, a defendant must demonstrate both that counsel’s performance was deficient and that the deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984).

    In this case the court resolved the appeal based on the prejudice prong. “In the context of plea withdrawal, [to prove prejudice] a defendant must establish a reasonable probability that he or she would not have pled and would have gone to trial but for counsel’s ineffective performance” (¶ 12).

    The appellate court concluded that “Jeninga has failed to establish a reasonable probability that he was prejudiced by the failure of trial counsel to move to suppress evidence because he did not present objective factual assertions about his subjective decision to enter into a plea agreement, including any effects that successful evidence suppression might have had on his decision to enter into the agreement” (¶ 10).

    “Jeninga has failed to meet his burden because the only factual basis offered in support of his allegation about his subjective choice to enter the plea agreement is the limited testimony of his trial counsel as to her subjective opinion, merely suggesting what she believed Jeninga was thinking. [She testified to her belief that the trial court’s joinder decision affected the defendant’s decision on whether to go to trial or take a plea.] … In other words, Jeninga has not provided objective facts in support of his contention, nor has Jeninga provided his explanation as to why he would not have pled” (¶ 17).

    Said the court: “At bottom, Jeninga asks us to assume, based on the general circumstances, that he would not have pled to any charge and, instead, would have gone to trial, based solely on trial counsel’s testimony regarding her beliefs, merely suggesting what his state of mind and thinking might have been. Although Jeninga’s postconviction motion alleged that he would not have pled, Jeninga provided no objective facts that evidenced his thinking and reasoning. Simply put, there is no record evidence that demonstrates from Jeninga himself that he would not have pled and instead would have gone to trial. Therefore, we conclude that Jeninga did not satisfy Strickland’s prejudice component” (¶ 18).


    Duty to Defend – Four-corners Test – “Entire Suit” Rule

    Anderson v. Kayser Ford Inc., 2019 WI App 9 (filed 7 Feb. 2019) (ordered published 27 March 2019)

    HOLDING: Dismissal of an insurer from a lawsuit was improper because the insurer did not establish that it had no duty to indemnify its insured under any theory of liability.

    SUMMARY: The plaintiff sued a used car dealer alleging a variety of regulatory violations involving fraud and deception. The dealer had a “garage policy” issued by Regent Insurance, which intervened in the litigation. Based on various pretrial rulings, Regent moved to be dismissed on grounds that it had no duty to indemnify the dealer. The circuit court dismissed Regent, finding it had no duty to defend or to indemnify its insured.

    The court of appeals reversed in an opinion authored by Judge Blanchard. First, the court held that the garage policy fell within the line of cases controlling an insurer’s duty to defend (see ¶ 18). Although the “only arguably covered claim” had been dismissed on partial summary judgment, a trial was pending on another claim that was “not arguably covered.” The court concluded that a “reasonable insured would not have a clear understanding of whether there is a duty to defend based on the policy language alone” (¶ 19).

    Second, applying the four-corners test and what it called the “entire suit” rule found in the duty to defend cases, the court held that Regent had a continuing duty to defend even though there was no coverage on the only claim left to be tried (see ¶ 27). Succinctly stated, “it is difficult for us to see how the duty to defend could end with a circuit court no merits determination that may be reversed on appeal and may yet result in an obligation by the insurer to indemnify” (¶ 39). The key then is the distinction between a duty to defend, which is triggered by the plaintiff’s claim, and a duty to indemnify, once liability is established (see ¶ 54).

    Duty to Defend – Delayed Payments

    Choinsky v. Germantown Sch. Dist. Bd. of Educ., 2019 WI App 12 (filed 20 Feb. 2019) (ordered published 27 March 2019)

    HOLDING: Several insurance companies did not breach their duty to defend.

    SUMMARY: A group of retired teachers and other former employees sued a school district after it discontinued a group long-term insurance policy that affected their benefits. The district tendered its defense to several insurers, which denied coverage on grounds that the district had engaged in intentional conduct. When the district disagreed, the insurers moved to intervene and bifurcate the merits from coverage. The circuit court granted the motion in December 2013.

    In April 2016, the coverage issue was tried to a jury, which found against the insurers (see ¶ 17). The trial judge ruled that the insurers had not breached their duty to defend because they followed court-approved procedures to resolve the coverage dispute. The merits case was tried in June 2017, and the jury ruled in the district’s favor.

    The court of appeals affirmed in a majority opinion, authored by Chief Judge Neubauer, that rejected the district’s demand for various unpaid claims against the insurers, specifically the “contention that the insurers breached their duty to defend because their agreement to defend was ‘belated’ and insufficiently ‘immediate’” (¶ 26). The insurers were “actively pursuing a court-approved approach to resolving the coverage dispute” (¶ 31).

    The record did not support the district’s claim for $50,000 in unpaid fees in addition to the more than $250,000 paid to the district’s law firm. Moreover, because the district was not forced to simultaneously defend the merits and establish coverage, it was responsible for its own coverage-related fees (see ¶ 37). Thus, the “special circumstances and equitable considerations” present in Elliot v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403 (1992), were not present in this case (¶ 41).

    Dissenting, Judge Reilly contended that the majority incorrectly found that 1) the district had no burden to prove that the insurers’ delay constituted a breach, and 2) there had been no “delay” when the insurers refused to pay $50,000 in damages incurred by the district in its earlier defense.


    Objective Bias – Social Media Contacts

    Miller v. Carroll, 2019 WI App 10 (filed 20 Feb. 2019) (ordered published 27 March 2019)

    HOLDING: Social media contacts between the trial judge and a litigant demonstrated objective bias by the judge.

    SUMMARY: This case arose out of a child-custody-and-placement dispute. While the litigation was pending, the trial judge accepted a Facebook “friend” request from the mother. The connection was not disclosed to the opposing party. The judge did not “like” or comment on any posts by the mother, nor did he reply to her comments about his Facebook posts. (In later proceedings, the judge never denied reading the mother’s posts.)

    The judge ruled in the mother’s favor. Shortly thereafter, the guardian ad litem discovered the judge’s Facebook contacts and alerted the father’s counsel. The trial judge denied a motion requesting that he disqualify himself and grant a new hearing.

    In an opinion authored by Judge Seidl, the court of appeals reversed the circuit court. The court of appeals’ opinion provides guidance on electronic social media contacts between judges and litigants. There was no contention that the trial judge was subjectively biased.

    Nonetheless, the circumstances demonstrated objective bias, which occurs “(1) where there is the appearance of bias or partiality; or (2) where objective facts demonstrate that a judge treated a party unfairly” (¶ 13). No Wisconsin authority addressed the electronic social media issues, so the court looked to persuasive authority from other states and professional commentary.

    The court of appeals declined to determine whether a bright-line rule was necessary or appropriate, but it found that the record here showed an appearance of partiality (see ¶ 18). The court examined five factors that justified disqualification on this record, including concerns over ex parte communications (see ¶ 24). In sum, the presumption of impartiality had been rebutted (see ¶ 29).


    Recreational Immunity – “Owner” of Property – Recreational Activity

    Langenhahn v. West Bend Mut. Ins. Co., 2019 WI App 11 (filed 12 Feb. 2019) (ordered published 27 March 2019)

    HOLDING: The circuit court correctly granted summary judgment to an American Legion post on the basis of recreational immunity with respect to injuries sustained by a guest at an event the post sponsored.

    SUMMARY: American Legion Post 469, a nonprofit organization, organizes and produces Marathon Fun Days in the village of Marathon City each year during the Labor Day weekend. The event is held at Marathon City Veterans Park. Paula Langenhahn attended an informal class reunion at the 2011 Marathon Fun Days. When leaving the park, she tripped over a metal barricade that was being used to block motor vehicle traffic on a street adjacent to the park and was injured as a result. She and her husband filed personal-injury claims against Post 469 and its insurer.

    The circuit court granted summary judgment to the defendants on the basis of recreational immunity, and the plaintiffs appealed. In an opinion authored by Judge Hruz, the court of appeals affirmed.

    The recreational immunity statute (Wis. Stat. § 895.52) reflects a legislative choice to expand liability protection for landowners who open their private property for public recreational use (see ¶ 10). The immunity applies only to an “owner” of the property and the owner’s officers, employees, or agents. An owner is defined as a “[a] person, including a governmental body or nonprofit organization, that owns, leases or occupies property.” It was undisputed that Post 469 did not own or lease Veterans Park or the surrounding area.

    Thus, Post 469 could prevail on recreational immunity grounds only if it “occupied” the relevant real property. Prior cases interpreting the statute have concluded that the producer of a fair or event “occupied” the property (¶ 16). In a footnote, the court noted that the plaintiffs did not develop any argument that Post 469 is not entitled to immunity because Marathon Fun Days primarily took place in a public park. “In any event, prior cases establish that an event organizer receives the benefit of recreational immunity even if the event takes place on public lands” (¶ 18 n.6).

    The court also rejected any argument that Post 469 did not “occupy” the crosswalk where the plaintiff was injured. “The presence of the barricades plainly evidences Post 469’s occupancy of it, and no reasonable fact finder could conclude otherwise” (¶ 27).

    The court also held that the plaintiff was participating in a recreational activity at the time of her injury. “More recent case law … supports our conclusion that attendance at the Marathon Fun Days event – even for an informal class reunion – constitutes a ‘recreational activity’” (¶ 34).

    “The [plaintiffs’] walking to exit Marathon Fun Days was inextricably connected to their attendance at the event, and it was therefore a recreational activity qualifying Post 469 for immunity. ‘Our case law makes clear that the act of walking to or from an immune activity constitutes a recreational activity.’ The [plaintiffs] were on a course to their car to leave the event at the time Paula was injured, and they were therefore engaged in a ‘recreational activity’” (¶ 35) (citation omitted).

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