Wisconsin Lawyer
Vol. 81, No. 3, March 2008

Court of Appeals Digest

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

Criminal Procedure

State v. Champlain, 2008 WI App 5 (filed 5 Dec. 2007) (ordered published 30 Jan. 2008)

The local jail administrator required the defendant to wear an armband taser device (a Band-It) during the defendant's jury trial. The Band-It, a polypropylene sleeve that fits from just above the wrist to over the elbow, employs an electrical discharge similar in principle to a stun belt. The electronic box inside the sleeve measures about three inches by six or seven inches and is an inch or inch-and-a-half thick. A uniformed court officer wearing an activator sat directly behind the defendant at the jury trial in case the unit had to be activated.

The defendant wore his own clothing at the jury trial, declining the jail administrator's offer of a long-sleeved shirt from the jail's property collection. The short sleeves of the defendant's polo shirt did not conceal the Band-It on his right forearm. When defense counsel noticed the armband and asked what it was, his client told him it was "some kind of security thing." Counsel did not object to the defendant having to wear the device or otherwise ask the trial court to inquire whether the device was necessary. The jury convicted the defendant of burglary and obstructing an officer.

On appeal the defendant challenged the propriety of the armband's use and, separately, alleged that his trial counsel was ineffective for failing to object to his wearing the device in the presence of the jury. In a decision authored by Judge Nettesheim, the court of appeals reversed. Applying the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 (1984), the court agreed with the defendant that his trial counsel was ineffective for failing to raise a challenge to use of the armband taser device.

A criminal defendant generally should not be restrained during the trial "because such freedom is an important component of a fair and impartial trial" (¶ 22) (citation omitted). Said the court, "once [the defendant] told [his attorney] that the armband was a type of security device, we cannot excuse [defense counsel] for failing to raise the question of whether the device was necessary and to ask [that] the trial court make an independent inquiry on the matter.... Numerous cases address the potential prejudice inherent when a criminal defendant appears before a jury garbed or restrained so as to imply guilt. Numerous cases also address that it is for the court, not jail personnel, to determine the necessity for the restraint.... Once he learned that [the defendant's] armband, at least potentially visible to the jury, was an electronic restraint, [counsel] had a duty to object or, at a bare minimum, to request the trial court to explore the need for the device. We conclude that [counsel's] professional assistance fell below an objective standard of reasonableness such that he did not function as the `counsel' the Sixth Amendment guarantees" (¶¶ 26-27) (citations omitted). "[B]ecause we cannot say with confident certainty that the visible device did not unfairly prejudice [the defendant], we hold that the prejudice prong of Strickland is also satisfied" (¶ 2).

The court of appeals further held that, despite counsel's failure to raise the issue, the trial court had an independent duty to explore the necessity of the device once the court became aware of it. "A trial court maintains the discretion to decide whether a defendant should be shackled during a trial as long as the reasons justifying the restraints have been set forth in the record. It is an erroneous exercise of discretion to rely primarily upon law enforcement department procedures instead of considering the risk a particular defendant poses for violence or escape. In addition, whenever a defendant wears a restraint in the presence of jurors trying the case, the court should instruct that the restraint is not to be considered in assessing the proof and determining guilt.... The judge alone controls the courtroom and alone has the authority and the duty to make a restraint decision" (¶¶ 33-34) (citations omitted).

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State v. Alexander, 2008 WI App 9 (filed 18 Dec. 2007) (ordered published 30 Jan. 2008)

Two Milwaukee police officers were parked in a specific area of the city because of recent complaints that shots had been fired in the area. They observed a vehicle go through a red light, and they activated their squad car's emergency lights in an attempt to pull the vehicle over. The vehicle did not stop immediately but eventually did so after travelling about two blocks. During the time the officers followed the vehicle, they noticed three people in the car. The front seat occupants were the driver, Brown, and the defendant, Alexander; the back seat occupant was Winters.

One of the officers stated that he saw Alexander and Winters making furtive movements as though each were giving something or receiving something from the other. The officer then saw Alexander turn back toward the front of the car and lean forward toward the glove compartment. Alexander also appeared to lean toward Brown, who lifted herself up as if to allow Alexander to place something beneath her. After the furtive movements stopped, the car pulled over. Based on the furtive movements, the delay in pulling over, the high-crime area, and the time of day (9:19 p.m.), the officer believed, based on his prior experience, that there were weapons in the car. He and his partner called for backup. The officers then asked the occupants to exit the vehicle and they patted down the individuals. First, they patted down Winters and did not find any weapons. Then they asked Alexander to exit; he initially refused. He then complied, and a pat-down did not reveal any weapons on Alexander. Then the officers asked Brown to exit and patted her down. The officers did not find any weapons but they did observe on the driver seat a bottle of air freshener, some papers, and the auto manual - items typically kept in the glove compartment. The officers then searched the glove compartment of the vehicle and discovered a gun and a large amount of cocaine and marijuana (see ¶ 3).

The defendant was charged with possession of cocaine and marijuana with intent to deliver. The circuit court denied his motion to suppress this evidence, and he entered a guilty plea. The circuit court also denied his postconviction motion to reconsider the ruling on the suppression motion, and this appeal followed. In a decision authored by Judge Wedemeyer, the court of appeals affirmed.

The question before the appellate court was whether the officer conducting the protective search had reasonable suspicion to believe that the subject of the pat-down was dangerous and may have had immediate access to a weapon (see ¶ 8). "We are convinced that the officers in the instant case had sufficient particularized facts to raise a reasonable suspicion that the situation was dangerous, and that the occupants of the vehicle may have had a weapon. We base our decision on the following factors: (1) the officers were in the area due to `shots fired' complaints and knew the area to be very violent, with substantial drug and gun activity; (2) the numerous furtive gestures of the occupants of the car observed by the officers before the car stopped; (3) the delay in stopping raising the suspicion of the officers that the occupants were buying time to hide weapons; (4) the officers' belief that the situation was dangerous based on the occupants' actions immediately upon stopping the car; (5) the items observed on the driver's seat and the reasonable inferences that could be drawn therefrom; (6) the protective search being the first priority over the traffic stop; and (7) the trial court's credibility determination" (¶ 15).

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State v. Straehler, 2008 WI App 14 (filed 19 Dec. 2007) (ordered published 30 Jan. 2008)

The defendant was injured when the vehicle she was driving was involved in an accident. The officer at the scene did not detect any odor of intoxicants coming from her. After the defendant was conveyed to a hospital, however, a different officer was informed by a nurse that she and other hospital staff members smelled alcohol coming from the defendant and that the defendant had told hospital staff that she had consumed alcohol before the accident. With the defendant's consent, blood was thereafter withdrawn and analyzed; it was found to have an alcohol content level of .119 grams per 100 milliliters of blood. The state charged the defendant with operating while intoxicated as a repeat offender.

The defendant argued that the release of her confidential health information by the nurse violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Wisconsin medical privacy statute (Wis. Stat. § 146.82) and that the information should therefore be suppressed. She further contended that without this medical information the police lacked probable cause for a blood draw and that the results of any chemical test would be inadmissible. The circuit court denied the motion to suppress. In a decision authored by Judge Anderson, the court of appeals affirmed the circuit court.

With respect to the alleged HIPAA violation, the appellate court concluded that HIPAA applies to what are known as "covered entities," but police officers are not listed as one of the covered entities. Therefore HIPAA does not control the conduct of law enforcement officers. See 45 C.F.R. §§ 160.102(a), 164.104(a). "Thus, even assuming [nurse] Hagerman disclosed information in violation of this privacy rule, in urging suppression of the evidence, [the defendant] ignores the most obvious limitation of HIPAA: HIPAA and its accompanying regulations, including the privacy rule, apply to express `covered entities': health plans, health care clearinghouses, and health care providers who transmit health information electronically. See 45 C.F.R. §§ 160.102(a), 164.104(a)"

(¶ 10). Further, "even if [the detective at the hospital] was somehow bound by HIPAA, which we have established an officer is not, HIPAA does not provide for suppression of the evidence as a remedy for a HIPAA violation. Suppression is warranted only when evidence has been obtained in violation of a defendant's constitutional rights or if a statute specifically provides for suppression as a remedy. [The defendant] does not argue a constitutional violation and the statute does not specifically provide for suppression as a remedy..." (¶ 13) (citations omitted). The court also concluded that HIPAA does not preempt Wis. Stat. section 905.04(4)(f), which provides "[t]here is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration" (¶ 14).

With respect to the Wisconsin medical privacy statute, the court held that section 146.82 applies to patient health care records. Because the statute only applies to records, the nurse's verbal statements based on her observations of the defendant are not protected by it (see ¶¶ 19-20). Further, section 146.84 provides remedies for violations of section 146.82 but the list of remedies does not include suppression of evidence (see ¶ 14).

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Elder Law

Winiarski v. Village of Manor Park, 2008 WI App 7 (filed 4 Dec. 2007) (ordered published 30 Jan. 2008)

"This case arises out of an unmarried woman's estate planning" (¶ 2). Winiarski prepared a will, a health care power of attorney (HCPOA), and a general durable power of attorney (GDPOA) in which he was designated the "first named agent" for his client, Florence. Years later Florence entered a facility, Village of Manor Park (VMP). VMP later questioned the validity of the HCPOA because Winiarski both witnessed the HCPOA and was named as the representative; accordingly, VMP petitioned for a guardianship to determine if Florence was competent to make her own health care decisions. Winiarski observed the hearing but was not permitted to participate or present evidence. The circuit court found that Florence was competent and dismissed the petition. Shortly thereafter, Florence's adversary counsel informed Winiarski that Florence had revoked the HCPOA and the GDPOA and thereby terminated him as her agent. Winiarski "conceded" that he agreed to this "unconditional termination," and he gave the keys and documents to Florence's new agent. Winiarski then appealed the determination that Florence was competent.

The court of appeals, in an opinion written by Judge Kessler, dismissed the appeal because Winiarski lacked standing. "[B]ecause Winiarski's standing derives from his agency under the GDPOA, when Winiarski conceded at oral argument that he had accepted Florence's termination of his agency, he would only be entitled to appeal on her behalf if he reserved the right to do so at the time of his termination as agent. As he conceded at oral argument that he did not reserve the right to do so, we must determine whether Winiarski's failure to reserve a right to appeal upon his termination as Florence's agent under the GDPOA constituted a waiver that deprives him of standing to make this appeal" (¶ 13). "Because Winiarski is a lawyer, and the drafter of the GDPOA, we can infer that he had constructive knowledge of his rights and responsibilities as an agent under the GDPOA. By his acknowledgement at oral argument that he did not reserve his right to appeal on Florence's behalf the court's finding that she was competent when he consented to his termination as her agent under the GDPOA, we may also infer that Winiarski voluntarily and intentionally waived that right" (¶ 15).

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Employment Law

Kriska v. WERC, 2008 WI App 13 (filed 11 Dec. 2007) (ordered published 30 Jan. 2008)

In 1995 petitioner Kriska was hired by the Wisconsin Department of Corrections (DOC) as a correctional officer. In 2001 he was promoted to the position of lieutenant (supervising officer 1) (SO 1). He successfully completed the probationary period associated with that promotion and acquired permanent employee status in the SO 1 position. In 2005 Kriska was promoted to captain (supervising officer 2) (SO 2). This position required a 12-month probationary period. During that probation, Kriska received notice that his promotional probationary period for captain was being terminated because he allegedly violated various work rules, and that he was being returned to his lieutenant position at that corresponding rate of pay. Kriska appealed from the dismissal, alleging that he was denied his right to a just cause determination.

The Wisconsin Employment Relations Commission (WERC) denied the appeal after determining that it lacked subject matter jurisdiction over appeals of probationary termination decisions in a situation in which the employee is serving an initial probationary period and thus does not have the "permanent status in class" required by Wis. Stat. section 230.44(1)(c). This statute provides as follows: "If an employee has permanent status in class … the employee may appeal a demotion, layoff, suspension, discharge or reduction in base pay to the commission, if the appeal alleges that the decision was not based on just cause." The circuit court affirmed WERC's decision. In an opinion authored by Judge Wedemeyer, the court of appeals affirmed the circuit court.

The issue on appeal was whether WERC erred in determining that it lacked subject matter jurisdiction to hear Kriska's appeal from the DOC's termination of his probationary period for the captain position and returning him to the lieutenant position (see ¶ 7). Based on the plain language of the statutes and the administrative code, together with the existing case law, the appellate court concluded that WERC did not have jurisdiction to hear Kriska's appeal. "We hold that under the facts and circumstances of this case, DOC's termination of Kriska's probationary period for the SO2 position does not fall under Wis. Stat. § 230.44(1)(c), as DOC returned Kriska to his pre-promotion position and did not adversely affect his permanent status rights in that position. Moreover, the administrative code clearly permits dismissal `[a]t any time during' the probationary period without the right to an appeal. Wis. Admin. Code § ER-MRS 14.03. Accordingly, we affirm the decision of the circuit court, affirming WERC's determination that it lacked subject matter jurisdiction in this case" (¶ 15).

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H&R Block v. Swenson, 2008 WI App 3 (filed 20 Dec. 2008) (ordered published 30 Jan. 2008)

Six former employees of H&R Block left the company in 2004 and set up their own bookkeeping and tax service. The former employees had been with H&R Block for periods ranging from 10 years to 25 years. H&R Block brought this action alleging that the former employees had breached restrictive covenants in their employment contracts. The circuit court struck down the clauses as invalid.

The court of appeals, in a decision authored by Judge Vergeront, affirmed. Restrictive covenants are viewed under the following canons: "(1) they are prima facie suspect; (2) they must withstand close scrutiny to pass legal muster as being reasonable; (3) they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires; and (4) they are to be construed in favor of the employee"

(¶ 14). The court particularly focused on contract language that extended the two-year period of restrictions by the "period(s) of any violation." It held that "the extension provision makes the duration of the restraints unreasonable for two independent reasons. First, if we accept H&R Block's proposed construction, we do not understand how this provision is to be applied in the context of the two restrictive clauses here, which deal with providing services to company clients and soliciting those clients. What constitutes a `one-day' violation? Is it any day in which there is any contact with a company client for whom one of the listed services is being provided? Does the violation then extend until the service is completed for that client? If there are contacts with different company clients on one day for the purposes of providing the listed services does that count as a one day violation, the same as if there were contact with only one company client in a day? These questions, unanswered by the contract terms, mean that a former employee cannot tell from the terms of his or her contract how long the extension will be for particular conduct in violation of the clauses. Second, there may be legitimate disputes between a former employee and H&R Block over whether particular conduct violates the clauses. An employee will not know until the dispute is resolved by a court whether the conduct is or is not a violation. Only then will the employee know if there is an extension and how long it is. The effect of the extension provision thus makes the duration of the restraint not a fixed and definite time period but a time period that is contingent upon outcomes the employee cannot predict" (¶¶ 19-20).

The court also addressed a counterclaim brought by the former employees in which they alleged that H&R Block had violated their privacy rights provided by Wis. Stat. section 995.50(2)(b). The counterclaim involved H&R Block's allegedly inadvertent use of their names after their employment had ended. The parties' dueling affidavits, however, created disputed issues of material fact that precluded summary judgment for either party on the counterclaim.

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Evidence

State v. Normington, 2008 WI App 8 (filed 21 Nov. 2007) (ordered published 30 Jan. 2008)

The defendant was convicted of sexually assaulting and causing great bodily harm to a person with mental disabilities. The defendant was the victim's caretaker. The state contended that he assaulted the victim with a toilet plunger and caused life-threatening internal injuries. At trial the state introduced evidence of pornography on the defendant's computer that depicted somewhat similar acts.

The court of appeals, in an opinion written by Judge Vergeront, affirmed. The case is noteworthy for its application of other-acts evidence doctrine to computer pornography and for applying the "greater latitude" standard "if the victim functions at the level of a child due to disabilities" and regardless of the victim's chronological age (¶ 19). The opinion features a meticulous, case-intensive application of the Sullivan (State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998)) three-step test (used to determine whether prior acts of a defendant are admissible) to the "object insertion" pornography that the state introduced to prove the penetration here was intentional, not accidental.

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Family Law

Waukesha County Dep't of Health & Human Servs. v. Teodoro E., 2008 WI App 16 (filed 19 Dec. 2007) (ordered published 30 Jan. 2008)

The circuit court terminated the parental rights of Teodoro E. to two children. Teodoro could not personally attend the hearings because he had been deported to Mexico. The county department and Teodoro's lawyer devised a webcam system that permitted Teodoro to see and hear the proceedings in the courtroom while permitting the local participants to see and hear him.

The court of appeals, in an opinion written by Chief Judge Brown, affirmed in a three-judge appeal that was ordered to underscore the importance of the issues, especially the use of technology to provide a meaningful opportunity to participate. First, the circuit court properly found that the webcam system allowed Teodoro to follow and understand the proceedings, unlike a "simple telephone setup" that was criticized in a prior case (¶ 15). Second, the procedures did not deprive Teodoro of effective assistance of counsel. "The record shows that Teodoro could consult privately with his attorney. Moreover, his attorney was physically present in the courtroom. Thus, … there was nothing preventing the court from keeping an eye on either Teodoro or his counsel" (¶ 19).

The court then turned to, and rejected, Teodoro's substantive claims. First, the conditions he failed to meet were not "impossible." "[A]s the circuit court noted, `Mexico is not prison' and Teodoro remained free to work on and meet many of the conditions of return. As an example, the first condition, `Show that you are interested in your child,' includes subparts that deportation should not have prevented Teodoro from meeting, such as `[t]alk to doctors, teachers, therapists and other people who care for your child to learn what your child needs [and] [p]ay child support on a regular basis.' The trial court found that Teodoro did neither of these things, either in Mexico or earlier when he was in Waukesha; indeed, during the time that his wages were being garnished to pay child support, he sometimes asked for and received the money back from the children's mother" (¶ 23). The court also rejected claims based on the department's alleged "bad faith" and the circuit court's alleged abuse of discretion in terminating Teodoro's parental rights.

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Real Property

Apple Valley Gardens Ass'n Inc. v. MacHutta, 2007 WI App 270 (filed 28 Nov. 2007) (ordered published 19 Dec. 2007)

Apple Valley Gardens Association, a condominium owners' association, sued the defendants to enforce an amended bylaw requiring owner occupancy of condominium units. The original condominium declaration did not contain this limitation; it was added several years later by an amendment to the bylaws. On cross-motions for summary judgment, the circuit court ruled in favor of the association.

On appeal the defendants argued, among other things, that 1) the bylaw amendment is unenforceable because Wis. Stat. section 703.09(1)(g) (2005-06) requires that all use restrictions be recorded in the condominium declaration; and 2) such rental restrictions make the title unmarketable, in violation of Wis. Stat. section 703.10(6) and Bankers Trust Co. of California, N.A. v. Bregant, 2003 WI App 86, 261 Wis. 2d 855, 661 N.W.2d 498. In a decision authored by Judge Nettesheim, the court of appeals affirmed.

Wis. Stat. section 703.09(1)(g) requires the declaration to contain a statement of intended purpose and use restrictions, section 703.10(3) permits the bylaws to contain use restrictions, and section 703.10(1) directs that unit owners "shall comply strictly" with the bylaws, the rules adopted thereunder, and any amendments to them (see ¶ 16). The court of appeals agreed with the circuit court that "nothing in the declaration prohibited the Association from amending the bylaws to require owner occupancy. [The declaration] provided that each unit owner `shall abide by and be subject to' all duties and obligations arising under the Association's bylaws, rules and regulations of the Association, and empowers the Association to make reasonable rules and regulations governing the use of the units. Reading the declaration, bylaws and statutes together, we conclude that the amendment was permissible and is enforceable" (¶ 18).

The appellate court further concluded that the owner occupancy restriction does not violate Wis. Stat. section 703.10(6), which provides that bylaws cannot render unmarketable or otherwise affect a condominium unit title. It also found that the Bankers Trust decision, which concluded that a bylaw restriction cannot be used to block a transfer of title, addresses a situation distinguishable from that in the present case. "The Association here is not attempting to block a sale but to enforce a use restriction against a current owner. While this particular use restriction may negatively affect a unit's appeal to some potential buyers, it does not render the title `unmarketable' in the full legal sense of that term. An unmarketable title is one which is not transferable. Restricting further leasing of a unit does not affect an owner's right to alienate his or her property; it affects only the use of the unit" (¶ 21) (citations omitted).

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Taxation

Wisconsin Dep't of Revenue v. Estate of Schweitzer, 2008 WI App 2 (filed 6 Dec. 2007) (ordered published 30 Jan. 2008)

The court described the following stipulated facts. "Ott E. Schweitzer died on November 4, 2003. His will was admitted into informal administration in probate court on December 19, 2003. Prior to his death, Schweitzer made gifts of $119,000 in January 2003 and $390,000 in September 2003. These gifts were properly reported to the Internal Revenue Service (IRS) on U.S. Gift Tax Return Form 709. For purposes of this appeal only, the personal representatives of Schweitzer's Estate (the Estate) concede that the gifts were made in contemplation of his death"

(¶ 2). The estate also filed returns with the IRS and the Wisconsin Department of Revenue (DOR). The DOR asserted that the 2003 gifts should have been added to the gross estate, which meant that the estate owed $45,000 in estate taxes and interest (see ¶ 3). The estate challenged the assessment in court, and the judge ruled that the DOR lacked authority to add gifts made in contemplation of death (see ¶ 5).

The court of appeals, in an opinion authored by Judge Higginbotham, affirmed. "The sole question presented on appeal is whether the statutes authorize DOR to add gifts made in contemplation of death to the gross estate when calculating an estate's Wisconsin estate tax liability" (¶ 7). In essence, "the gross estate subject to Wisconsin estate taxes is the federal taxable estate. DOR's attempt to tack on gifts made in contemplation of death to the federal taxable estate, which serves as the gross estate for purposes of calculating the Wisconsin estate tax, is therefore contrary to the plain language of the statute, which taxes only property that is subject to a federal estate tax" (¶ 13). "Because DOR's interpretation of Wis. Stat. §§ 72.01 and 72.02 would result in a total Wisconsin estate tax that is greater than the federal credit against the federal estate tax, and not `equal to the federal credit against the federal estate tax,' it is contrary to the plain language of § 72.02. Stated differently, any construction of these statutes that results in a calculation of the Wisconsin estate tax that is not equal to the federal tax credit for state death taxes is inconsistent with the plain language of § 72.02" (¶ 14).

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Torts

Phelps v. Physicians Ins. Co., 2008 WI App 6 (filed 4 Dec. 2007) (ordered published 30 Jan. 2008)

The case stemmed from the remand of Phelps v. Physicians Insurance Co., 2005 WI 85. An unlicensed resident doctor, Lindemann, negligently treated a patient who was pregnant with twins. One twin died during delivery. The prime issue on remand was whether Lindemann was a "borrowed employee" of the hospital. The circuit court found that he was and capped various damage awards in keeping with recent case law.

The court of appeals, in an opinion written by Judge Curley, reversed in part and affirmed in part. Lindemann was clearly an employee of the Medical College of Wisconsin Affiliated Hospital (MCWAH) and the only issue was whether his service at the hospital rendered him a "borrowed employee." Applying the prolix "borrowed employee" test from prior cases, the court concluded that the test had not been met. "There is no evidence that Dr. Lindemann left MCWAH's employment and agreed to become a St. Joseph's employee. Dr. Lindemann provided medical services similar to those provided by private physicians who are not St. Joseph's employees. MCWAH directed which hospital Dr. Lindemann worked at and paid him. Dr. Lindemann and MCWAH had a written contract, and MCWAH had the sole right to terminate him. MCWAH never relinquished any control over Dr. Lindemann. Indeed, as noted, while at St. Joseph's no hospital employee supervised Dr. Lindemann, and Dr. Lindemann was never given a handbook or any rules setting out St. Joseph's procedures. Thus, the right to control Dr. Lindemann remained in the hands of MCWAH's program director, MCWAH senior residents and private physicians. Finally, Dr. Lindemann's services benefitted the patients of the hospital and the private physicians but most of all, Dr. Lindemann's work aided MCWAH in its mission to train first-year residents in order to become licensed physicians" (¶ 31).

Finally, because Lindemann was not a borrowed employee, his conduct was not subject to the caps on damages as provided by Wis. Stat. chapter 655 (because unlicensed, first-year residents were not otherwise "protected" by chapter 655).

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