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    Wisconsin Lawyer
    March 10, 2021

    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


    Malpractice Action Against Criminal Defense Attorney – Actual-innocence Rule

    Jama v. Gonzalez, 2021 WI App 3 (filed 10 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: An individual’s malpractice claim against his former criminal defense attorney can proceed when he alleges that he can show actual innocence as to some but not all of the charges in the underlying criminal case and his civil complaint alleges that the former defense attorney provided negligent representation only as to the charges as to which he alleges that he can show actual innocence.

    SUMMARY: Jama was convicted by a jury of four felonies (second-degree sexual assault, third-degree sexual assault, and two charges of burglary) and one count of misdemeanor theft. He was represented by Gonzalez. On postconviction motion, the circuit court vacated all convictions after finding that Gonzalez rendered ineffective assistance of counsel. The state later moved to dismiss all the original charges except the misdemeanor-theft charge. It also added a new charge of misdemeanor resisting or obstructing an officer. Jama pleaded guilty to these misdemeanors.

    Jama then sued Gonzalez for legal malpractice associated with his sexual assault convictions. (The circuit court vacated the burglary convictions because of lack of evidence, and they play no role in the malpractice case.) Gonzalez moved to dismiss Jama’s malpractice complaint, contending that Jama could not prevail because of the actual-innocence rule. According to Gonzalez, because Jama pleaded guilty to the theft charge after his convictions were vacated, Jama could not prove that he was innocent of all charges. The circuit court agreed and dismissed the malpractice action. In an opinion authored by Judge Kloppenburg, the court of appeals reversed.

    In Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809, the court of appeals held that in addition to proving all the elements of a standard legal malpractice claim, a plaintiff alleging that a criminal defense attorney engaged in malpractice must also prove to the civil jury that he or she “is innocent of the charges of which he [or] she was convicted” (¶ 21). The Hicks actual-innocence rule was recently affirmed by the supreme court in Skindzelewski v. Smith, 2020 WI 57, 392 Wis. 2d 117, 944 N.W.2d 575 (see ¶ 34).

    The present case raises the issue whether Jama may sue Gonzalez for malpractice when he alleges that he can show actual innocence as to some, but not all, of the criminal charges in the underlying criminal case and his complaint alleges that Gonzalez provided negligent representation only as to the sexual assault charges as to which he alleges that he can show actual innocence (see ¶ 1).

    The court of appeals called this a “split innocence” situation and concluded that “Jama’s allegations that his former trial counsel negligently represented him as to two sexual assault charges, causing him injury, and that he has consistently asserted and can prove his innocence of those charges, suffice to withstand Gonzalez’s motion to dismiss” (¶ 44).

    Criminal Procedure

    Evidence – Confrontation – Hearsay

    State v. Nelson, 2021 WI App 2 (filed 9 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: A witness’s testimony about a report written by another person who did not testify nonetheless comported with the confrontation right.

    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: A jury convicted the defendant of multiple felonies involving his violent sexual assault of a 17-year-old victim. During trial, a witness, a nurse, testified to the contents of a report written by another nurse, RK, that related to RK’s examination of the victim. RK did not testify. The defendant did not object to the testimony during trial but claimed on appeal that it constituted plain error.

    The court of appeals affirmed the conviction in an opinion authored by Judge Gundrum. RK’s report did not constitute testimonial hearsay under the confrontation clause because its “primary purpose” was not to produce evidence against the defendant at trial (¶ 30). Rather, its focus was on the victim’s health (see ¶ 37). For much the same reasons, the references to RK’s report did not constitute plain error (see ¶ 47).

    Alternatively, the court held that any error was harmless (see ¶ 51). The opinion also considered and rejected the contention that the prosecutor’s verbal miscues during closing argument justified a new trial (the prosecutor had been referencing her own subjective view of the evidence) (see ¶ 58).

    Judge Davis concurred but wrote separately to emphasize the narrowness of the court’s holding and caution against any mistaken notion that the court was opening the way for witnesses to act as hearsay conduits by relating the contents of reports written by others (see ¶ 62).

    Judge Reilly dissented. RK’s report of her examination constituted testimonial hearsay. The surrogate witness’s testimony about RK’s “statements” violated the defendant’s confrontation right because RK did not testify subject to cross-examination.

    NGI – Conditional Release – Revocation – Postrevocation Review

    State v. Klapps, 2021 WI App 5 (filed 23 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: An appeal of the revocation of the defendant’s conditional release failed because he did not seek postrevocation review as required by statute.

    SUMMARY: The defendant pleaded guilty to sexually assaulting a child but was found not guilty by reason of mental disease or defect (NGI) in 2000. Since then, he “has been conditionally released and revoked and recommitted many times” (¶ 3). This appeal involved the latest revocation and recommitment proceeding based on multiple violations of his conditional-release order.

    The court of appeals affirmed the circuit court’s recommitment order in an opinion authored by Chief Judge Neubauer. The court rejected the defendant’s claim that the judge was biased because the defendant failed to move for postdisposition relief as required by Wis. Stat. section 971.17(7m). The statute’s “plain meaning … requires a postdisposition motion when an issue has not been previously raised” (¶ 20). “In sum, Wis. Stat. § 971.17(7m) makes clear that in pursuing postdisposition relief after the revocation of supervised release, a petitioner may file a direct appeal to address sufficiency of the evidence or issues that have already been raised and a postdisposition relief motion to address those issues that have not been raised, including claims of judicial bias” (¶ 26).

    The court then turned to its discretionary reversal authority, noting that the defendant had not raised an ineffective-assistance-of-counsel challenge (see ¶ 28). Forfeited claims must be brought before the court of appeals through “an ineffective assistance of counsel or interest of justice framework” – unlike the broader authority reposed in the supreme court (¶ 32). That said, the court applied its discretionary reversal standard in concluding that the “real controversy of his present dangerousness was fully and fairly tried.” The trial judge’s comments did not create a “great risk of actual bias” (¶ 34).

    Employee Benefits

    Duty Disability – Disability Retirement Benefits for City of Milwaukee Employees

    Grycowski v. Milwaukee Employees’ Retirement Sys./Annuity & Pension Bd., 2021 WI App 7 (filed 22 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: A city of Milwaukee police officer did not meet the standard for a “duty disability retirement” as provided for in the Milwaukee City Charter.

    SUMMARY: Grycowski was hired as a city of Milwaukee police officer in 1992. He contended that during his years on the force, seven incidents that occurred while he was on duty resulted in injuries to his lower back. He argued that the cumulative effect of these injuries has caused him to have a disability. The Milwaukee Employees’ Retirement System/Annuity and Pension Board (the board) denied his application for duty disability retirement (DDR) benefits, rejecting Grycowski’s argument that there is a separate disability standard for Milwaukee police officers and firefighters and that he met that standard. On certiorari review, the circuit court affirmed the board’s decision. In an opinion authored by Judge Brash, the court of appeals affirmed.

    The crux of Grycowski’s argument was that there is a separate standard under the Milwaukee City Charter for determining eligibility for DDR benefits for police officers and firefighters, and that this separate standard provides for eligibility based on the cumulative effects of injuries, as opposed to eligibility based on a specific injury that occurred at a definitive time during an act of duty.

    The court of appeals disagreed, concluding that “it is reasonable to interpret [the City Charter] as having only one standard for all City employees for determining eligibility for DDR benefits, and not a separate standard for police officers and firefighters” (¶ 38).

    To succeed on his application for DDR benefits, Grycowski would have to establish that his disability was caused by an injury to his back that occurred at a “definite time and place” (¶ 39). However, the former circuit judge who conducted Grycowski’s appeal hearing found that evidence did not establish that any of the incidents cited by Grycowski directly caused his lower back problems. Rather, the judge found that there was credible evidence that Grycowski had a preexisting degenerative disc disease in his lower back when he joined the police force (see ¶ 41).

    The Milwaukee City Charter bars benefits in cases in which an individual has a preexisting condition (see ¶ 42). Though finding that Grycowski has a disability, the former circuit judge concluded that Grycowski did not meet the standard for eligibility for DDR benefits because none of the injuries he sustained in the line of duty was the sole cause of the disability. The court of appeals found this application of the evidence to the disability standard set forth in the city charter to be reasonable (see ¶ 45).

    Employment Law

    Employment Discrimination – Criminal Record of Employment Applicant

    Cree Inc. v. LIRC, 2021 WI App 4 (filed 9 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: An employer unlawfully discriminated against a job applicant on the basis of the applicant’s conviction record.

    SUMMARY: The Labor and Industry Review Commission (LIRC) found that Cree Inc., a lighting-products manufacturer that employs more than 1,100 people (including 500 women), discriminated against Derrick Palmer when it rescinded a job offer for a lighting schematic layout applications specialist position upon learning of Palmer’s conviction record. His record included convictions in 2012 for strangulation-suffocation, fourth-degree sexual assault, battery, and criminal damage to property, all of which were related to a domestic incident with his live-in companion.

    Cree appealed LIRC’s decision to the circuit court, which reversed it. In an opinion authored by Judge Gundrum, the court of appeals reversed the circuit court.

    Wisconsin law prohibits an employer from refusing to hire a prospective employee on the basis of the job applicant’s conviction record. See Wis. Stat. §§ 111.321, 111.322. The employer may, however, so discriminate if “the circumstances of [any felony, misdemeanor, or other offense] substantially relate to the circumstances of the particular job” for which the applicant is being considered. See Wis. Stat. § 111.335(3)(a)1. The employer bears the burden of demonstrating that the circumstances of an applicant’s prior offenses substantially relate to the circumstances of a particular job (see ¶ 12).

    In this case “Palmer’s criminal record does demonstrate a ‘tendenc[y] and inclination[] to behave a certain way in a particular context’ – to be physically abusive toward women in a live-in boyfriend/girlfriend relationship” (¶ 14) (citation omitted). However, Cree presented no evidence suggesting Palmer has ever been violent in a circumstance other than a live-in romantic relationship or even suggesting that he has ever had such a relationship that in any way stemmed from or was related to his employment (see ¶ 15).

    “And as LIRC found, Cree presented no evidence suggesting Palmer would be supervising, mentoring or even working closely with female employees. We agree with LIRC that it would require ‘a high degree of speculation and conjecture’ to conclude that Palmer would develop a live-in boyfriend/girlfriend relationship through the Applications Specialist job and also agree that the mere contact with others at the facility and on the job is not substantially related to Palmer’s domestic violence” (¶ 15).

    Accordingly, the court concluded that Cree failed to establish a substantial relationship between the circumstances of Palmer’s prior convictions and the circumstances of the job at Cree for which he applied (see ¶ 16).


    Icy Conditions – Municipalities – Immunity

    Knoke v. City of Monroe, 2021 WI App 6 (filed 3 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: In a tort action involving the plaintiff’s fall on an icy sidewalk, the city is entitled to immunity under Wis. Stat. section 893.80(4).

    SUMMARY: Knoke was injured when he fell on an icy sidewalk. He sued the city of Monroe, claiming it had negligently allowed the snow and ice to accumulate. The circuit court denied the city’s motion for summary judgment, in which the city claimed municipal immunity under Wis. Stat. sections 893.80(4) and 893.83.

    The court of appeals reversed in an opinion authored by Judge Graham, holding that the city was entitled to immunity under Wis. Stat. section 893.80(4). The court did not decide the application of Wis. Stat. section 893.83, but the court discussed both statutes. Essentially, “the circuit court concluded that claims based on snow and ice accumulations are exclusively the province of § 893.83, and that the discretionary immunity set forth in § 893.80(4) has no application to claims based on snow and ice accumulations that had lasted for three weeks or more” (¶ 11).

    In rejecting this reading, the court of appeals closely assessed the 2011 amendments to Wis. Stat. section 893.83, which “broadened the language linking § 893.83 to the discretionary immunity statute” (¶ 25). “Accordingly, we conclude that Wis. Stat. § 893.83 unambiguously subjects claims based on snow and ice accumulations that have existed three weeks or more to the discretionary immunity provisions set forth in Wis. Stat. § 893.80(4). Our conclusion is confirmed by the legislative history of 2011 Act 132” (¶ 30).

    Closely assessing the record on summary judgment, particularly the “plowing pattern” that contributed to the icy sidewalk, the court further held that the city was entitled to discretionary immunity under Wis. Stat. section 893.80(4). The record included the plaintiff’s arguments regarding nuisance claims, legislative and judicial functions, a ministerial duty, and known and compelling dangers. As to the latter, “the danger Knoke points to – snow and ice on the side of a Wisconsin street in winter – is far less severe and immediate [than those seen in other cases]. It is beyond dispute that even the best-maintained Wisconsin roadways are, at least at times, icy and slippery in the winter” (¶ 55).

    Wrongful Death – Health Care Providers – Community-Based Residential Facility

    Estate of Oros v. Divine Savior Healthcare Inc., 2021 WI App 8 (filed 10 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDING: A community-based residential facility (CBRF) was not subject to Wis. Stat. chapter 655 in a wrongful-death action.

    SUMMARY: A woman brought this wrongful-death action against a corporation that owned a CBRF, alleging that her mother’s death was caused by the staff’s negligence. The corporation also owned a hospital and a nursing home on the same campus. The circuit court ruled that the CBRF as well as the corporation’s nursing home and hospital were subject to the special rules in Wis. Stat. chapter 655, governing health-care provider liability, which barred the daughter’s action (she was an “adult child” barred from bringing such a claim).

    The court of appeals reversed in an opinion authored by Judge Blanchard. Plainly put, “Chapter 655 does not apply here” (¶ 3). On appeal, the corporation made the “well-advised concession” that given a “freestanding CBRF,” chapter 655 “would pose no obstacle to the claim” (¶ 19). The court, however, rejected the corporation’s contention that this CBRF was subject to chapter 655 under a “conglomerate of care” rationale.

    The opinion closely parses the definitions of health care providers under chapter 655. See, e.g., ¶ 28. In sum, the corporation disagreed with the policy determinations made by the Wisconsin Legislature (see ¶ 31). The court also rejected the corporation’s “hybrid-allegation” argument, which too amounted to “a policy disagreement” focused on the “inextricably intertwined” activities of CBRFs, nursing homes, and hospitals (¶ 38).

    Unemployment Compensation

    “Successor” Employer – Failure to File a Timely Application – Excusable Neglect

    Friendly Vill. Nursing & Rehab LLC v. Wisconsin Dep’t of Workforce Dev., 2021 WI App 9 (filed 15 Dec. 2020) (ordered published 27 Jan. 2021)

    HOLDINGS: 1) The Labor and Industry Review Commission (LIRC) properly determined that Friendly Village failed to show that the late filing of an application to succeed to the seller’s unemployment-account experience was the result of excusable neglect. 2) LIRC was not required to consider the interests of justice in its excusable-neglect analysis.

    SUMMARY: Eden Senior Care is an Illinois company that purchases and rehabilitates distressed nursing homes. In 2017 it purchased Friendly Village Nursing Home in Rhinelander. Thereafter it filed an application with the Wisconsin Department of Workforce Development (DWD) to succeed to the seller’s unemployment-account experience. See Wis. Stat. §§ 108.02(14), 108.16(8)(f).

    According to the DWD, the unemployment-account experience includes “(1) the transferor’s positive or negative unemployment insurance reserve fund balance; (2) unemployment benefit liability based on the transferor’s employment; (3) the transferor’s reported payrolls for the purposes of meeting the taxable wage base in the transfer year; and (4) all other aspects of the transferor’s account” (¶ 6).

    The DWD denied the application because it was not timely filed and also determined that the late filing was not the result of excusable neglect (which could have remedied the tardiness problem). LIRC agreed with the DWD, as did the circuit court. In an opinion authored by Judge Stark, the court of appeals affirmed.

    On appeal Friendly Village argued that LIRC erred by failing to consider the interests of justice in its excusable-neglect analysis. The court of appeals disagreed. “The relevant statute – Wis. Stat. § 108.16(8)(b)4. (2017-18) – requires a transferee to satisfy the Department that its application was late as a result of excusable neglect. Nothing in the plain language of the statute requires the Department – or, on review, the Commission – to consider the interests of justice when analyzing excusable neglect” (¶ 2).

    The court of appeals also concluded that, on the record before it, LIRC properly determined that Friendly Village had failed to establish excusable neglect (see ¶ 33). “Under Wisconsin law, ‘excusable neglect’ means that neglect ‘which might have been the act of a reasonably prudent person under the same circumstances. It is not ‘synonymous with neglect, carelessness or inattentiveness’” (¶ 34) (citations omitted).

    In this case the evidence showed that when completing Friendly Village’s employer-registration report, the business analyst for the company that purchased Friendly Village (Eden Senior Care) incorrectly answered “no” to the question, “Did you acquire this activity from a previous employer?” (¶ 5). Had he answered the question correctly, it would have set in motion directions from the DWD to complete certain forms needed to acquire the unemployment-account experience of the former owner. A reasonably prudent employee in the business analyst’s position would have answered “yes” when asked if Eden had purchased Friendly Village from another entity (see ¶ 35).

    Eden was in the business of purchasing nursing homes and had in fact purchased Friendly Village from another entity. The business analyst who made the crucial error did not testify at the administrative hearing held before an administrative law judge, and LIRC therefore lacked the benefit of his testimony regarding the reason for his incorrect answer.

    Lastly, the court noted that Eden delegated the task of completing Friendly Village’s employer-registration report to a 22-year-old recent college graduate with degrees in communications and biology. “The Commission could reasonably conclude that a reasonably prudent business would not have assigned such a task to a new, inexperienced employee without supervising his work or double-checking the accuracy of his answers” (¶ 38).

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