Wisconsin Lawyer
Vol. 79, No. 2, February 2006

Supreme Court Digest

by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Administrative Law Commercial Law Creditor-debtor Law Criminal Procedure

Family Law Property Law Sexually Violent Persons Law Torts

Administrative Law

Tenured Faculty - Fair Hearing

Marder v. Board of Regents, 2005 WI 159 (filed 29 Nov. 2005)

Following a hearing, the University of Wisconsin (UW) Board of Regents terminated Marder, a tenured faculty member. The circuit court reversed the board's decision but was itself later reversed by the court of appeals.

The supreme court, in an opinion written by Justice Roggensack, affirmed the court of appeals. Marder did not argue that there was insufficient evidence to constitute just cause for his termination. Rather, he argued that the board failed to accord him a fair hearing under the contested case procedures of Wis. Stat. chapter 227, which prohibit ex parte communications with the decision-maker and provide a range of remedies. The court "conclude[d] that the provisions of § 36.13(5) and the rules the Board promulgated under Wis. Admin. Code § UWS 4, which are expressly authorized by law, set out the pre-termination procedures to which Marder was due. The contested case provisions of ch. 227 do not apply. This includes Wis. Stat. § 227.50(1), which comes into play only if the contested case provisions of § 227.42(1) apply" (¶ 24).

The court then turned to procedural issues relating to alleged improper ex parte communications between the campus chancellor, who sought Marder's ouster, and one of the regents. The applicable administrative rules are silent on ex parte communications, but "because Marder has a due process right to notice and an opportunity to be heard on the charges against him, a consultation outside of Marder's presence may cause constitutional problems if during the consultation the chancellor provided the Board with new facts on which the Board based Marder's termination, even if such consultation does not conflict with the terms of the administrative rule" (¶ 25) (citation omitted). Under the case law, the court had to "determine whether Marder has carried the burden to show that the three alleged ex parte communications created an impermissibly high probability of actual bias or introduced new information on which the Board based its decision to terminate Marder"

(¶ 33). The first two contacts raised only speculation about possible improprieties and thus as to these two communications, Marder failed to carry the burden of proof, in light of the presumption that government officials act with honesty and integrity (see ¶¶ 33, 38). As to the third contact, the supreme court remanded the matter to the circuit court for a determination of whether the chancellor presented new facts to the board just before its vote on the question of terminating Marder (see ¶ 40).

Chief Justice Abrahamson and Justice Bradley did not participate.

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Commercial Law

Contracts - Liquidated Damages - Public Policy

Rainbow Country Rentals v. Ameritech Pub. Inc., 2005 WI 153 (filed 22 Nov. 2005)

Rainbow Rentals (Rainbow) contracted with Ameritech Publishing (API) for a business listing in various editions of the yellow pages. API omitted Rainbow's entire listing from the directories, and Rainbow sued API for resulting damages. As one of its defenses, API asserted that a liquidated damages clause in the contract limited its liability to the amount set forth in the clause. Rainbow countered that the clause violated public policy. The circuit court ruled that API's contract was neither unconscionable nor violative of public policy and awarded damages to Rainbow of about $5,200, in accordance with the clause. Rainbow appealed.

The court of appeals certified the following question to the supreme court: "Whether [the] court's holding in Discount Fabric House of Racine, Inc. v. Wisconsin Telephone Co., 117 Wis. 2d 587, 345 N.W.2d 417 (1984), that an exculpatory clause in a yellow pages advertising contract was unconscionable as against public policy is still viable today given the changes that have occurred in the telecommunications industry in the two decades since that decision" (¶ 2).

The supreme court, in an opinion written by Justice Wilcox, affirmed the circuit court. The supreme court held that "Discount Fabric is still viable today. However, the case presented to us is factually distinct from Discount Fabric in two important ways. First, Ameritech does not possess a monopoly as Wisconsin Telephone did when Discount Fabric was decided. Second, when comparing all of the circumstances of this case with Discount Fabric, the clause at issue is not exculpatory, but rather, a valid and enforceable stipulated damages clause"(¶ 3). Rainbow had the opportunity to negotiate higher stipulated damages than those "usually offered" by API in the boilerplate contract, but it did not do so (see ¶ 27). The court also held that the clause was reasonable when analyzed under a multi-factor test, and that the situation here was clearly distinguishable from a host of cases decided since Discount Fabrics that concerned parties who inserted such language to avoid all liability for death or serious bodily injury (see ¶ 36).

Justice Bradley dissented on the basis that the summary judgment record raised a disputed issue of material fact.

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Creditor-debtor Law

Satisfaction of Judgment Debt When Underlying Judgment Has Been Discharged in Bankruptcy - Application of Wis. Stat. Section 806.19(4)

Megal Dev. Corp. v. Shadof, 2005 WI 151 (filed 8 Nov. 2005)

In 1994, Megal Development Corp. obtained a small claims judgment for eviction and money damages in the amount of $52,000 against the Shadofs. Pursuant to statute, the judgment subsequently became a lien on the Shadofs' homestead property. In 2003, the Shadofs filed for Chapter 7 bankruptcy relief. They included the Megal judgment as a dischargeable debt on Schedule D of their bankruptcy forms. The bankruptcy court discharged the Shadofs' debts, including the debt represented by the Megal judgment. Coming out of bankruptcy, the Shadofs' homestead equity exceeded their $40,000 homestead exemption.

The Shadofs subsequently filed an application with the circuit court to have the Megal judgment and judgment lien satisfied pursuant to Wis. Stat. section 806.19(4). In pertinent part this statute provides that "[a]ny person who has secured a discharge of a judgment debt in bankruptcy ... may submit an application for an order of satisfaction of the judgment and an attached order of satisfaction to the clerk of the court in which the judgment was entered." The circuit court denied the Shadofs' application for satisfaction of the judgment, and the Shadofs appealed. The court of appeals certified the case to the supreme court, which granted certification.

The first certified issue concerned "whether § 806.19(4) requires the satisfaction of a judgment debt against a homestead, where the underlying judgment has been discharged in bankruptcy, yet the debtor's homestead equity exceeds the allowable homestead exemption, and where the debtor failed to seek avoidance of the judgment lien in the bankruptcy court (¶ 1)." The second issue was "whether, if § 806.19(4) does require the satisfaction of a judgment debt when the underlying judgment has been discharged in bankruptcy, the statute is in conflict with, and therefore preempted by, federal bankruptcy law" (id.).

In a unanimous decision authored by Justice Crooks, the supreme court reversed the circuit court. It concluded that "[t]he plain language of [Wis. Stat. § 806.19(4)] unambiguously provides that when a proper application is received by the clerk and submitted to the judge for signature, the only thing required for satisfaction of a judgment debt and cessation of an associated judgment lien is that the underlying judgment has been discharged in bankruptcy" (¶ 2). Megal argued that because the Shadofs failed to seek an order under 11 U.S.C. § 522(f) (2004) to avoid the in rem judgment lien, the lien was not discharged in bankruptcy and, therefore, neither the judgment nor the judgment lien is eligible to be satisfied under section 806.19(4). The supreme court disagreed. Said the court, "[h]ad the Wisconsin Legislature intended to require avoidance under 11 U.S.C. § 522(f) (2004) before a judgment and judgment lien could be satisfied through state procedure, it could have done so. It did not" (¶ 21).

The court found substantial support in legislative history for its interpretation of section 806.19(4). "The Wisconsin Legislature, on multiple occasions, has demonstrated its intent to allow debtors to obtain satisfaction of both a judgment and a judgment lien when the underlying judgment has been discharged in bankruptcy" (¶ 34).

Finally, the court concluded that section 806.19(4) does not conflict with, and therefore is not preempted by, federal bankruptcy law (see ¶¶ 35-47).

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Criminal Procedure

Search Warrants - "Good Faith" Exception to Exclusionary Rule - Competency for Self-representation

State v. Marquardt, 2005 WI 157 (filed 23 Nov. 2005)

This case involved a search warrant. The parties agreed that the facts furnished in support of the warrant were insufficient to supply probable cause for the search. The central question was whether the good faith exception to the exclusionary rule should be applied to the search. In a majority decision authored by Justice Bradley, the supreme court answered in the affirmative.

In United States v. Leon, 468 U.S. 897 (1984), the U.S. Supreme Court recognized an objective good faith exception to the exclusionary rule in the warrant context. "Under Leon, evidence seized by officers `reasonably relying on a warrant issued by a detached and neutral magistrate' will not necessarily be suppressed. `In the ordinary case,' the Court in Leon explained, `an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient'" (¶ 24) (citations omitted). The Leon Court went on to describe four sets of circumstances under which the good faith exception does not apply. One is the situation in which an officer could not manifest objective good faith because the affidavit in support of the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" (¶ 28) (citation omitted). "[T]he good faith exception will not apply when the warrant is based on an affidavit so lacking in indicia of probable cause that a law enforcement officer - who ordinarily should not be expected to second-guess the warrant-issuing judge - can be said to have unreasonably relied on the warrant" (¶ 34). The court said that "an `indicia' of probable cause is not the same as a probable cause determination. Rather, the standard for `indicia' is less demanding. It requires sufficient signs of probable cause, not probable cause per se" (¶ 37). The court concluded that the warrant application contained sufficient indicia of probable cause for Leon purposes.

The supreme court has added two requirements that must be met before the good faith exception may be used in Wisconsin. Specifically, the state must show that the process used in obtaining the search warrant included 1) a "significant investigation," and 2) a "review by a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and reasonable suspicion, or [by] a knowledgeable government attorney." State v. Eason, 2001 WI 98, ¶ 63, 245 Wis. 2d 206, 629 N.W.2d 625. In the present case only the first Eason requirement was at issue. Said the court, "we recognize ... that a significant investigation for purposes of Eason refers to more than the number of officers or hours devoted to an investigation. In other words, as the State essentially acknowledges, the nature and focus of the investigation are important" (¶ 54). However, the requirement of a "significant investigation" does not require a showing that the investigation yielded the probable cause that would have been necessary to support the search at issue (see ¶ 53). The court concluded that the state showed compliance with the requirements of Eason.

Lastly, the court addressed the defendant's assertion that the circuit judge erred in finding him not competent to represent himself. In Wisconsin, there is a higher standard for determining whether a defendant is competent to represent himself than for determining whether a defendant is competent to stand trial. See State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). In determining the defendant's competence to proceed pro se, the circuit court may consider the factors enumerated in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601(1980) (e.g., the defendant's education and fluency in English), in addition to other factors. At the same time, if a request to proceed pro se is to be denied the record must demonstrate an identifiable problem or disability that may prevent a defendant from making a meaningful defense (see ¶ 61).

In this case the supreme court concluded that "the record supports the circuit court's determination that [the defendant] was not competent to represent himself. We do not share [the defendant's] view that the circuit court must always make an express finding as to which specific problem or disability prevented a defendant from being able to meaningfully represent himself. Our review of the record satisfies us that the medical and psychological opinions in this case identified a number of specific problems that could have prevented [the defendant] from meaningfully presenting his own defense and that the circuit court took these problems into account. Accordingly, we determine that the court did not err in its decision on [the defendant's] competency to represent himself" (¶¶ 68-69).

Chief Justice Abrahamson and Justice Butler filed an opinion concurring in part and dissenting in part.

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Family Law

Termination of Parental Rights - Fact-finding Hearings - 45 Days

State v. Robert K., 2005 WI 152 (filed 18 Nov. 2005)

This case concerned a termination of parental rights (TPR) proceeding. Neither Robert K. (the father) nor his attorney objected in September when the fact-finding hearing was scheduled for a date in the following March. The fact-finding hearing was held more than 45 days after the contested plea hearing. The fact-finding trial lasted five days. The jury found grounds for termination, and the circuit court terminated the parental rights of Robert K. to two of his children. The court of appeals affirmed.

The supreme court, in an opinion authored by Chief Justice Abrahamson, affirmed the court of appeals but on different grounds. It held that "a continuance may be granted under Wis. Stat. § 48.315(2), independent of the other grounds for a continuance specified in § 48.315(1), and ... the record in the present case establishes good cause under § 48.315(2) for holding the fact-finding hearing beyond the 45-day time period. Therefore, we conclude that the circuit court did not lose competency to proceed with the fact-finding hearing. Because we hold that good cause existed to hold the fact-finding hearing more than 45 days after the contested plea hearing, we do not address the issue upon which the circuit court ruled, that is, whether a guardian ad litem's acquiescence in the circuit court's setting the fact-finding hearing beyond the 45-day period fulfills the consent requirement of Wis. Stat. § 48.315(1)(b)"( ¶58).

The court said that there was no issue of waiver, because case law establishes that the 45-day statutory time period cannot be waived by a failure to object (see ¶ 13). "Section 48.422(2) provides that a circuit court shall set a date for a fact-finding hearing within 45 days of the hearing on the petition unless the necessary parties agree to commence the hearing on the merits immediately. Failure to comply with this statutory time period may result in the circuit court losing competence to proceed" (¶ 17). Without dispute the scheduled date was set for well after the 45-day period. The court said that "the word `continuance' in Wis. Stat. § 48.315(2) is sufficiently broad to encompass situations in which the fact-finding hearing is originally scheduled beyond the statutory 45-day time period" (¶ 28), and that calendar congestion and lawyers' scheduling conflicts may constitute statutory good cause (see ¶ 30).

Turning to the record before it, the court found that good cause had been shown. One key factor was the "sheer number of persons involved in the hearings" (seven lawyers, two guardians ad litem, and four parents) (¶ 38). The court was satisfied that the delay here "was no longer than necessary" (¶ 53), but warned that "[n]ot all cases will support a six-month time period between the plea hearing and the fact-finding hearing" (¶ 54). "Before we conclude, we urge each circuit court that relies on Wis. Stat. § 48.315(2) to cite the statute on the record; to state the basis for concluding good cause exists to continue, delay or extend a fact-finding hearing beyond the 45-day period between the plea hearing and the fact-finding hearing in a TPR proceeding; and to explain that the fact-finding hearing was not delayed longer than was necessary. In other words, the record should reflect the circuit court's concern with meeting the mandatory statutory time periods and protecting the rights of parents, children, and the public by making clear under § 48.315(2) the factors that influence its decision to delay, continue, or extend a hearing beyond the mandatory time periods" (¶ 55).

Justice Wilcox, joined by Justices Prosser and Roggensack, concurred but wrote separately to address the "problems of court congestion" and how court congestion impacts good cause for a continuance (see ¶¶ 60-65).

Termination of Parental Rights - Expert Testimony - Time Limits for Initial Appearance - Indian Child Welfare Act

Brown County v. Shannon R., 2005 WI 160 (filed 30 Nov. 2005)

The circuit court terminated the parental rights of petitioner Shannon R. and the court of appeals affirmed. The issue that the supreme court decided was whether the circuit court erred by excluding opinion testimony of Shannon R.'s expert witness regarding the substantial likelihood that Shannon R. will be able to meet the conditions established for the safe return of her children to the home within the 12-month period following the Wis. Stat. section 48.424 fact-finding hearing. The county had presented two experts who testified about the same matter.

In a majority opinion authored by Chief Justice Abrahamson, the supreme court reversed. After quoting extensively from the trial record, the supreme court concluded that the circuit court erroneously exercised its discretion in ruling that Shannon R. had not laid a proper foundation for qualifying a psychologist as an expert to testify as to whether Shannon R. is likely to be able to meet the conditions for return of her children within the relevant 12-month period. "The circuit court erred by not considering all the relevant facts; by applying the wrong legal standard; and by failing to demonstrate a rational process to reach a reasonable conclusion" (¶ 39).

The supreme court further concluded that the exclusion of the psychologist's testimony was prejudicial and reversible error. "In light of the important constitutional right at stake, the State's interest in an accurate decision, the fundamental fairness of giving a party the opportunity to defend, and Shannon R.'s inability to present evidence on an issue central to the outcome of the case, we hold that the circuit court's erroneous preclusion of [the psychologist's] expert opinion testimony (the only expert opinion testimony Shannon R. proffered on an issue central to her defense) denied her the due process right to present a defense and goes to the fundamental fairness of the proceeding" (¶ 72).

The court also addressed an issue related to time limits in chapter 48 proceedings. Wis. Stat. section 48.315(1) provides that "the following time period shall be excluded in computing time requirements in this chapter: (c) Any period of delay caused by the disqualification of a judge." The court held that "reassignment of a case to a different judge because of docket congestion does not constitute disqualification of a judge under Wis. Stat. § 48.315(1)(c)" (¶ 89).

[Editors' Note: Lawyers who handle termination of parental rights cases involving Native American children will want to review paragraphs 90 to 104 of this decision relating to the various proof burdens that need to be applied when the jury decides issues arising under the Wisconsin Children's Code and the Indian Child Welfare Act.]

Justice Roggensack filed a dissenting opinion that was joined by Justices Wilcox and Prosser.

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Property Law

Eminent Domain - Valuation - Evidence

Pinczkowski v. Milwaukee County, 2005 WI 161 (filed 1 Dec. 2005)

The county condemned Pinczkow-ski's property for purposes of airport expansion. Pinczkowski brought an action to challenge the amount of the condemnation damages award. The jury awarded the plaintiff an amount less than the amount of the condemnation award. The plaintiff appealed, and the court of appeals affirmed the circuit court.

The supreme court, in an opinion written by Justice Bradley, affirmed the court of appeals. The plaintiff unsuccessfully argued that the trial judge erroneously excluded evidence of the selling prices of two adjacent properties as well as a letter from a private party, Hertz, in which Hertz stated its intent to purchase her home. The supreme court said that according to "well-established precedent," the trial judge properly excluded evidence concerning the adjacent properties because both properties were purchased by the condemning authority. The court said that this rule was amply supported by "sound public policy and judicial economy" (¶ 20). "While the sales may have been voluntary in the sense that the County had not yet commenced formal condemnation procedures under Wis. Stat. § 32.05 (2003-04), the sales were decidedly not voluntary in the sense relevant to the rationale of market-skewing behind the Blick line of cases" (¶ 22). Moreover, because the county board had publicly directed officials to begin negotiations to purchase these properties, the court declined to consider whether the adjacent sales fell into an ill-defined "exception" (or "new rule") governing "voluntary" sales that the plaintiff proposed.

For the same reason, the trial judge properly precluded the plaintiff's appraisers from relying on this same evidence despite the capacity of experts to base opinions even on "inadmissible" evidence provided it is "reasonably" relied upon (see ¶ 38 (citing Wis. Stat. § 907.03)). "We determine that, given the rationale behind the Blick line of cases, it makes no difference whether [the plaintiff] sought to offer evidence of the sale price for the adjacent properties directly or whether she sought to have her appraisers rely on those prices as a basis for their estimates of value. The adjacent property sales were inherently unreliable indicators of market value and, in that sense, not comparable sales. Allowing evidence of the properties' sale prices would have been practically certain to confuse or mislead the jury. Likewise, because of their inherent unreliability as an indicator of market value, such sales cannot constitute facts or data of a type reasonably relied upon by experts in the field in forming opinions or inferences" (¶ 39).

The supreme court also held that the trial judge properly excluded the letter from Hertz, which had broached possibly purchasing the plaintiff's property along with adjacent lots for its commercial (car rental) purposes. "Hertz's letter of intent was speculative evidence of fair market value in light of its preliminary and conditional nature. This is apparent from the face of the letter. First, [the plaintiff] failed to sign the letter before its expiration date. Second, the letter indicated that even if signed by [the plaintiff], it was non-binding. Third, the letter set forth contingencies, including inspection for environmental conditions and `all other necessary government approvals.' It also contained numerous strike-outs, leaving unclear whether Hertz and [the plaintiff] had a meeting of the minds, even as to this non-binding agreement. The circuit court aptly characterized the letter as speculative and `one step removed from an offer'" (¶ 44). Addressing the plaintiff's alternative argument that the Hertz letter was relevant to another possible use of the property and hence its fair market value, the supreme court held that the letter's exclusion was not prejudicial because the plaintiff had adequately placed this "theory" before the jury (see ¶ 48).

Finally, the court concluded that denial of the plaintiff's requested replacement housing payment was reasonable. (The court's fact-intensive application of administrative regulations and statutes will not be discussed further.)

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Sexually Violent Persons Law

Appeal - Supervised Release - Due Process - Remedy

State v. Schulpius, 2006 WI 1 (filed 10 Jan. 2006)

Schulpius was committed as a sexually violent person pursuant to Wis. Stat. chapter 980. The circuit court later ordered supervised release but the release never took place. Schulpius moved to enforce the order, but the circuit court denied the motion. The court of appeals upheld denial of the motion. The supreme court, in an opinion written by Justice Crooks, affirmed the court of appeals. The supreme court addressed three issues in this "procedurally convoluted" case (¶ 3).

"First, is Schulpius entitled to outright release from his Wis. Stat. ch. 980 (2003-04) commitment because the Department of Health and Family Services (DHFS), in conjunction with Milwaukee County, was unable to place him in an appropriate location for the period between the initial supervised release determination and the circuit court's ultimate determination that Schulpius is too dangerous for such placement?" (¶1) The supreme court held that the issue was moot. In July 1997, the circuit court had ordered Schulpius's supervised release, which the state failed to accomplish, and in October 1999 the circuit court found that "Chapter 980 was being unconstitutionally applied to Schulpius" (¶ 20). The circuit court reconsidered the matter in November 2000 and determined that Schulpius was no longer appropriate for supervised release. "Schulpius never appealed the November 29, 2000 order based on the State's motion for reconsideration under Wis. Stat. § 807.06(1)(h). Rather, on November 26, 2001, Schulpius filed a motion to enforce the circuit court's decision and order of October 27, 1999, and for a final order to release Schulpius from the physical custody of the DHFS" (¶ 23).

The supreme court held that the November 2000 order was a "final order" that resolved all litigation between the parties. Thus, "when Schulpius failed to appeal timely from the November 2000 order, he waived his right to challenge the validity of that order" (¶ 26). The waiver further resulted in the inapplicability of State v. Morford, 2004 WI 5, which held that "when an individual committed under Chapter 980 is awaiting supervised release, the appropriate mechanism to revoke that supervised release is Wis. Stat. § 980.08(6m), rather than Wis. Stat. § 806.07(1)(h)" (¶ 24). For similar reasons, the court found it unnecessary to address Morford's retroactivity (see ¶ 27).

The court nonetheless considered several other moot issues related to the defunct order for supervised release. First, the court held that Schulpius's substantive due process rights had not been violated. "[T]he failure to place Schulpius on supervised release, during the period between the initial supervised release determination and the circuit court's ultimate determination that Schulpius was too dangerous for such placement, does not shock the conscience" (¶ 36). Yet, "Schulpius's continued placement in secure confinement for an extended period after the circuit court had repeatedly ordered he be placed on supervised release, violated his right to procedural due process. However, release, either outright or supervised, is not an appropriate remedy for Schulpius at this time, where his substantive due process rights were not violated, but where there was a violation of procedural due process" (¶ 39).

Second, the court held that State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999) remained "valid" even though it was inapplicable to Schulpius. The court held in Sprosty that "a circuit court has the authority under Wis. Stat. § 980.08(5) to order the DHFS to create appropriate services and facilities to accommodate an order for supervised release, and that the DHFS has the financial burden of paying for such programs and facilities in accord with Wis. Stat. § 980.12" (¶ 42). But "[s]uch an order is inappropriate at this time, under these circumstances. Such a facility for supervised release would be meaningless for Schulpius at this time, as he was determined to be inappropriate for supervised release in November 2000, and that determination has not been changed. In addition, we are satisfied that the DHFS has made substantial attempts to establish a residential facility or dwelling that would enable individuals committed under Chapter 980, such as Schulpius, to be placed on supervised release in Milwaukee County" (¶ 43). Finally, the court declined to address whether other remedies might be appropriate for other individuals committed under chapter 980 under "different circumstances" (see ¶ 52).

Periodic Exam - Remedy

State v. Beyer, 2006 WI 2 (filed 10 Jan. 2006)

Beyer was ordered committed as a sexually violent person under Wis. Stat. chapter 980. The court of appeals certified to the supreme court two issues concerning the circuit court's commitment order. The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed the circuit court.

The first issue was "whether the due process guarantee of the Fourteenth Amendment . . . has been violated by a delay of over 22 months in the present case between the time the first annual periodic examination report on Beyer was submitted to the circuit court under Wis. Stat. § 980.07 and the circuit court's probable cause hearing under Wis. Stat. § 980.09(2)(a) to determine whether facts exist that warrant a hearing on whether Beyer is still a sexually violent person" (¶ 2).

Summarizing the record, the court held that a due process violation had occurred: "No reason appears on the record to justify the delay in the circuit court's appointment of counsel. The circuit court was responsible for a delay that meant the probable cause hearing could not have been held until nine to 13 months after the DHFS provided the circuit court with Beyer's first annual periodic examination report. This delay significantly weakened the protection of the annual periodic examination and Beyer's right to be heard at a meaningful time. Indeed, in the present case, Beyer was permitted but a single probable cause hearing on both his first and second annual periodic examination reports. Regardless of whether the 13 months of delay were caused by the DHFS, the circuit court, the circuit court judge's assistant, the attorney general's office, Beyer's attorney, or some combination of them, the delay was unreasonably long because it deprived Beyer of his due process right to be heard at a meaningful time" (¶¶ 46-47).

The second issue concerned the appropriate remedy for such due process violations. The court held that discharge was manifestly not an appropriate remedy (see ¶ 50). "In the present case, when the circuit court failed to take prompt action to appoint counsel and an independent examiner and hold a probable cause hearing under Wis. Stat. § 980.09(2), Beyer should have moved for a writ of mandamus or a supervisory writ to compel the circuit court to take immediate action. These remedies help ensure that a ch. 980 committee receives the process due to him while protecting the public from the discharge of dangerous persons and promoting effective treatment of sexually violent persons" (¶ 54).

The chapter 980 "committee" (i.e., the person committed), however, does not bear the entire "onus" of assuring compliance with the law. Rather, the Department of Health and Family Services, the Department of Justice, and the circuit courts "should ensure prompt annual judicial review of ch. 980 committees' continued detention" (¶ 56).

"The DHFS can assist the circuit court in efficient case management by diligently adhering to the procedures and time limits set forth in ch. 980. As the agency charged with the custody, care, and control of ch. 980 committees, the DHFS plays an essential role in the annual periodic examination process. A circuit court must take appropriate steps to institute case management techniques by which the circuit court is advised of the critical steps in reviewing an annual periodic evaluation report, that is, the appointment of an attorney and independent examiner and the holding of a probable cause hearing. Case management is essential to the efficient functioning of judicial review of commitments. We refrain from setting out a specific procedure circuit courts must follow to implement a `tickler' and follow-up system that prompts the circuit court to assure that the matter is proceeding promptly. We leave the implementation of the case management system to circuit courts and administrative staff. The circuit courts should not, however, rely on communication from the ch. 980 committee to keep the probable cause hearing process moving along promptly. This case demonstrates the problems that occur when no `tickler' and follow-up system is in place or when any such system fails and the circuit court neglects to hold a probable cause hearing at a meaningful time in violation of the due process rights of a ch. 980 committee" (¶¶ 58-59). The court also stressed the importance of prompt appointments of counsel by the State Public Defender's office and commended the attorney general's use of "Paulick letters" that remind circuit courts to schedule probable cause determinations (see ¶¶ 60-61).

Justice Roggensack, joined by Justice Wilcox, concurred but wrote separately to emphasize that Beyer's due process rights had not been violated because he had not shown sufficient state action that prejudiced him at the delayed probable cause hearing. Justice Prosser did not participate.

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Torts

Excessive Force - Burden of Proof

Shaw v. Leatherberry, 2005 WI 163 (filed 6 Dec. 2005)

Shaw was arrested after a traffic-related altercation. She then sued law enforcement officers and alleged that the defendants used excessive force while she was being booked at the jail, particularly in conducting an alleged forcible "strip search." During the trial, the judge instructed the jury that Shaw's civil rights claims under 42 U.S.C. § 1983 were subject to the middle burden of proof (clear and convincing evidence). The jury found in favor of the defendants on the issue of liability. Shaw appealed to the court of appeals, which certified the following question to the supreme court: "What standard of proof applies to cases alleging excessive use of force by the police brought pursuant to 42 U.S.C. § 1983 (1994 & Supp. III 1998) in Wisconsin courts?" (¶ 2)

The supreme court, in an opinion written by Justice Wilcox, concluded that "the Supremacy Clause of the United States Constitution requires Wisconsin courts to apply the lowest burden of proof - preponderance of the evidence - in civil rights actions under 42 U.S.C. § 1983, alleging excessive use of force by police personnel" (¶ 3). In light of controlling federal precedent, "the clear and convincing evidence burden of proof undermines the remedial purpose of § 1983 just as much in an excessive force case as it does in a case such as [Crawford-El v. Britton, 523 U.S. 574 (1998)], which concerned the failure to deliver a prison inmate's papers" (¶ 28). "All told, our review of federal law leads us to the conclusion that if Shaw had brought this cause of action in federal court, the appropriate burden of proof would have been the lower civil burden" (¶ 30). "Inasmuch as the burden of proof is substantive, we hold that under the Supremacy Clause, the lower federal burden of proof applies in § 1983 excessive force cases in state court" (¶ 31). Moreover, while a higher burden of proof "may not necessarily affect the outcome of every case, it does disrupt the federal interest in uniformity" (¶ 42).

The court remanded the case for a new trial on the issue of liability. The court said that the damages issue did not need to be retried, because the first jury had been properly instructed on that issue according to the ordinary burden of proof.

Medical Malpractice - Disabled Child - Statute of Limitation

Haferman v. St. Clare Healthcare Found., Inc., 2005 WI 171 (filed 30 Dec. 2005)

Toby was born in February 1991. In September 2002, his parents filed suit against various health care providers alleging that Toby sustained a developmental disability as a result of the defendants' negligence when Toby was born. Rejecting the defendants' contention that the action was barred by the statute of limitation, the circuit court ruled that it was permissible under Wis. Stat. section 893.16. The court of appeals reversed in a split decision. The majority held that the plain language of section 893.16 "exempted children who sue health care providers from the statute's tolling provisions" (¶ 13), and that Toby's action was governed by the general, three-year statute of limitation, Wis. Stat. § 893.55(1)(a), which barred the claim.

The supreme court, in an opinion written by Justice Bradley, reversed the court of appeals. The court considered whether Wis. Stat. section 893.16, 893.55, or 893.56, alone or in tandem, governed claims against a health care provider alleging injury to a developmentally disabled child (see ¶ 15). The court ultimately concluded that none of these statutes governed the claim. After closely considering the plain language of the statutes and their history, the court was not convinced by the parties' arguments that it had to "confess error" or "retract" interpretations offered in prior cases. It also "decline[d]" to "rewrite either § 893.16 or § 893.56" (¶ 52) and rejected the court of appeals' admittedly "troubling" solution that the claim was controlled by the general three-year statute in section 893.55 (¶ 53).

The lacunae led to a single conclusion: "the legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. This determination is the only determination the court is able to reach without either rewriting the statutes or working an absurd and illogical result" (¶ 58). The court closed with the observation that even in the absence of a statute of limitation the defense of laches is available in an appropriate case (see ¶ 60).

Justice Prosser, joined by Justices Roggensack and Wilcox, dissented. They concluded "that a developmentally disabled person must bring his or her action within one of the time limitations under Wis. Stat. § 893.55, or by the time the person reaches the age of 10 years, whichever period is longer" (¶ 62).

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