Wisconsin Lawyer
Vol. 80, No. 12, December 2007

Administrative Law Civil Procedure Criminal Law Criminal Procedure

Evidence Open Records Law Sexually Violent Persons Torts

Administrative Law

Metz v. Veterinary Examining Bd., 2007 WI App 220 (filed 27 Sept. 2007) (ordered published 31 Oct. 2007)

The Wisconsin Department of Regulation and Licensing filed a complaint against the plaintiff with the Veterinary Examining Board. The administrative complaint alleged that the plaintiff was vice president of Animart Inc. and that, during specified time periods, he sold or dispensed, through Animart, veterinary prescription drugs to farm owners without establishing and maintaining a veterinarian-client-patient relationship, in violation of Wis. Stat. section 453.068(1)(c). During this administrative proceeding the plaintiff filed suit seeking declaratory and injunctive relief from the circuit court and alleging that the definition of a veterinarian-client-patient relationship in section 453.02(8) is void for vagueness as applied to him and that the board is applying a rule to him without having properly promulgated it as required by Wis. Stat. chapter 227. The board's summary judgment motion was denied by the circuit court. In a decision authored by Judge Vergeront, the court of appeals reversed.

The appellate court described this case as presenting "a significant issue on the relationship between a pending administrative proceeding and a circuit court action for declaratory and injunctive relief challenging the administrative proceeding" (¶ 1). "[T]he real issue in dispute is whether [the plaintiff] is entitled to fact-finding and a declaratory ruling in the circuit court (and injunctive relief if he is successful) on his claim that the statute is unconstitutionally vague as applied to him. This implicates the doctrine of exhaustion of administrative remedies..." (¶ 11). "The exhaustion doctrine is typically applied when a party seeks judicial intervention before completing all the steps in the administrative process. The general rule in this situation is that a party must complete all administrative proceedings before coming into court. The purpose of the exhaustion doctrine in this situation is to allow the administrative agency to perform the functions the legislature has delegated to it and to employ its special expertise and fact-finding facility" (¶ 13) (citations omitted).

However, a court need not apply the exhaustion doctrine "when a good reason exists for making an exception" (¶ 14). "The situations that courts have held constitute exceptions to the exhaustion doctrine appear to fall into these categories: the administrative body does not have the authority to provide the relief sought; the party who failed to exhaust would have no judicial review in circumstances that would be harsh or unfair; and the agency has already informed the party of its position on a question of law where the facts are not disputed" (¶ 15).

The court was not persuaded that the exhaustion doctrine should not apply in this case. "We conclude the principles underlying the doctrine are served by applying it in this case. As we have already noted, a resolution of [the plaintiff's] as-applied constitutional claim involves fact-finding. It may also involve the Board's expertise and policy judgment in applying the statute. These are the core functions delegated by the legislature to an administrative agency. The Board has not yet had an opportunity to respond to [the plaintiff's] assertion that the statute is unconstitutional as applied to him, and we see no reason to prevent the agency from considering this claim after a full development of the facts. If the agency agrees with him, there is no need for judicial review; if it does not, there will be a fully developed record of the facts and the agency's reasoning, which will aid the court in its review" (¶ 27).

The plaintiff also contended that the board is applying a rule to him without having properly promulgated it as required by Wis. Stat. chapter 227. "Whether an agency has applied a rule without promulgating it as required by Wis. Stat. § 227.10(1) is an issue that an administrative agency has the authority to rule on. [The plaintiff] does not argue that he is entitled to declaratory and injunctive relief on his rulemaking claim if the exhaustion doctrine applies to his constitutional claim. We conclude that all the reasons that favor applying the doctrine to the as-applied constitutional claim apply with equal force to the rulemaking claim" (¶ 29) (citations omitted).

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Civil Procedure

Schuett v. Hanson, 2007 WI App 226 (filed 25 Sept. 2007) (ordered published 31 Oct. 2007)

The Schuetts sued Hanson based on alleged misrepresentation regarding a real estate transaction. Several months later they served an amended complaint on Hanson. Hanson answered the original complaint but did not separately answer the amended complaint. The Schuetts moved for default judgment, which the circuit court granted over Hanson's objection.

The court of appeals, in an opinion written by Judge Brunner, affirmed. First, the Schuetts' amended complaint was timely filed. "Here, the Schuetts' amended complaint was served by mail on October 6, 2005, within six months of when the original complaint was filed on April 7, 2005. However, the amended complaint was not filed until after six months, on October 11. We conclude that an amended pleading is `amended,' pursuant to Wis. Stat. § 802.09(1), when it is served upon the parties. While the statutes do not explicitly define when a pleading is `amended,' our conclusion is supported by the context of § 802.09(1) within the civil procedure statutes" (¶¶ 5-6).

Second, the court rejected Hanson's argument that when he answered the original complaint, he "joined issue," thus precluding default judgment. "[O]nce the amended complaint supplanted the original, the amended complaint stood alone, waiting to be answered pursuant to Wis. Stat. § 802.09. Any previous joining of issue resulting from Hanson answering the original complaint was, by this point, nullified. To join issue, Hanson was required to answer the amended complaint, which he did not do. Because no issue has been joined with the only live, operative complaint in this case, we reject Hanson's argument that a default judgment was precluded by Wis. Stat. § 806.02(1)" (¶ 13).

Finally, the record failed to establish excusable neglect. "Hanson conspicuously avoids the central question of why he actually failed to answer the amended complaint. In fact, he never offered an explanation to the circuit court. The closest Hanson came to doing so was asserting, in his brief to the court, that he mistakenly believed an answer had been filed. While this might explain why he did not move for an enlargement of time sooner, it does not explain why he failed to answer initially. The circuit court was therefore presented with no basis for concluding that Hanson's failure to answer was the result of excusable neglect" (¶ 16).

Allstate Ins. Co. v. Brunswick Corp., 2007 WI App 221 (filed 1 Aug. 2007) (ordered published 31 Oct. 2007)

In 2000 a circuit court entered stipulated declaratory judgments that dismissed lawsuits against several insurers, on the ground that their policies did not cover claims against Brunswick Corp. for alleged environmental damages and remediation costs. The stipulation was based on City of Edgerton v. General Casualty Co., 184 Wis. 2d 750, 517 N.W.2d 463 (1994). In 2003 the supreme court overruled Edgerton in Johnson Controls Inc. v. Employers Insurance of Wausau, 2003 WI 108, 264 Wis. 2d 60, 665 N.W.2d 257. Brunswick then moved for relief from the 2000 declaratory judgment on the ground that the change in law rendered the judgment unjust. The circuit court denied the motion.

The court of appeals, in an opinion written by Judge Snyder, affirmed. The court of appeals held that the circuit court properly applied the multifactor test set forth in Sukala v. Heritage Mutual Insurance Co., 2005 WI 83, 282 Wis. 2d 46, 698 N.W.2d 610 (see¶ 8). The court's analysis is fact-intensive and will not be considered in detail. The court of appeals observed that in general, "a change in the judicial view of an established rule of law is not an extraordinary circumstance which justifies relief from a final judgment" under applicable statutes (¶ 7). Also, the discretionary authority to vacate judgments is to be used "sparingly" (¶ 17).

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Criminal Law

State v. Nommensen, 2007 WI App 224 (filed 19 Sept. 2007) (ordered published 31 Oct. 2007)

The state filed a criminal complaint in Washington County charging the defendant with repeated sexual assault of his daughter, contrary to Wis. Stat. section 948.025(1). The complaint alleged that the assaults occurred between May 1994 and April 1998 in the city of West Bend in Washington County. The following month, the state filed a criminal complaint in Fond du Lac County that charged the defendant with repeated sexual assault of his daughter in the city of Fond du Lac. This complaint alleged that the assaults occurred between April 1998 and December 2000. Thus, the time periods alleged in the two criminal complaints contained a one-month overlap of April 1998.

The Washington County case was tried first and a jury found the defendant guilty. The defendant subsequently discovered new evidence indicating that his daughter had told a third person that she had lied about her accusations against him. Based on this new evidence, the Washington County Circuit Court granted the defendant's request for a new trial. However, the court stayed further proceedings pending disposition of the Fond du Lac County case. Later, a jury found the defendant not guilty in the Fond du Lac County case. In this trial the newly discovered evidence described above was presented to the jury, and the defendant testified in his own defense.

The defendant then moved for dismissal of the charges in the Washington County case on the grounds of double jeopardy and claim and issue preclusion. The circuit court denied the motion, and the court of appeals granted the defendant's petition for leave to appeal this nonfinal order. In an opinion authored by Judge Nettesheim, the court of appeals affirmed.

The appellate court began its double jeopardy analysis by noting that the first prong in a double jeopardy inquiry is whether the multiple charges are identical in law and in fact. If so, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions, and the inquiry ends. If not, the court looks to whether the legislature nonetheless intended the multiple offenses to be brought as a single count (see ¶ 6).

In this case the defendant was charged in both counties with identical offenses, and thus the charges were identical in law. However, they were not identical in fact. "Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature ... Charges are not the same in fact if each requires proof of a fact that the other does not. Multiple offenses are significantly different in nature if each requires `a new volitional departure in the defendant's course of conduct'" (¶ 8) (citations omitted). In this case the conduct occurred in different locations and at different times. Each charge represents a new volitional departure in the defendant's course of conduct. "[D]espite the `overlap' period of April 1998, a future fact finder in this case could not convict [the defendant] based on the conduct for which he was acquitted in the Fond du Lac county case" (¶ 9). The court also concluded that, based on the legislative history of the statute under which the defendant was prosecuted, the nature of the proscribed conduct, and the appropriateness of multiple punishments, the state had a right to bring multiple prosecutions for episodes of conduct that were discrete as to time and venue (see ¶¶ 15-18).

The court also held that claim preclusion does not bar the retrial in Washington County; the case concerns sexual assaults that occurred in Washington County, which are claims discrete from those tried in Fond du Lac County. As for issue preclusion, which bars the relitigation of issues that have actually been decided in a previous case between the same parties, the court concluded that the trial in Fond du Lac concerned conduct that occurred in Fond du Lac, and the defendant "has provided nothing to suggest that the jury instructions or the verdict form permitted the Fond du Lac county jury to stray beyond those allegations and to premise its verdict of acquittal on events occurring in Washington county" (¶ 20).

State v. Turnpaugh, 2007 WI App 222 (filed 25 Sept. 2007) (ordered published 31 Oct. 2007)

A jury convicted the defendant of prostitution, and the defendant appealed, contending that there was insufficient evidence to support the conviction. The court of appeals agreed and, in a decision authored by Judge Fine, reversed the conviction.

The defendant was convicted under Wis. Stat. section 944.30(1), which prohibits intentionally "[having] or [offering] to have or [requesting] to have nonmarital sexual intercourse for anything of value." The charge arose out of a prostitution sting operation and a conversation the defendant had with a female undercover officer, who testified that the defendant said "that he was looking for sex and he wanted me to masturbate and that he wanted to watch." The defendant offered to pay for this activity, but no specific amount of money was discussed.

The appellate court concluded that this evidence was insufficient to support a prostitution conviction under section 944.30(1). "Although [the defendant] said he was `looking for sex,' he limited the scope of that phrase by describing what he was willing to pay for - watching [the officer] masturbate. Offering payment is, of course, the sine qua non of the violation of Wis. Stat. § 944.30(1). Thus, even though, looking at the evidence in a light most favorable to the jury verdict, [the defendant] might have also wanted to have sexual intercourse with [the officer], he only offered to give her something `of value' in return for the voyeuristic gratification he would get from watching her masturbate. Since the statute requires a request for `nonmarital sexual intercourse' be coupled with the offer of `anything of value,' the evidence that [the defendant] was willing to pay to watch [the officer] masturbate does not satisfy § 944.30(1)" (¶ 7).

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Criminal Procedure

State v. Martinez, 2007 WI App 225 (filed 26 Sept. 2007) (ordered published 31 Oct. 2007)

In 1993 the defendant was given indeterminate sentences totaling 14 years on a variety of state charges. In 2001 he was paroled from his state sentences directly to the federal government to begin serving a federal sentence that was consecutive to his state sentence. He was released from federal custody in 2006 to serve the remainder of his state-ordered parole on the 1993 charges. Three months later he was incarcerated for violating parole, and his parole was subsequently revoked. The defendant then moved for a discharge from his state sentence, claiming that he was entitled to credit under Wis. Stat. section 973.15(5) for the time served under federal jurisdiction (and, if so credited, he would no longer be on parole and subject to parole revocation because his state sentence would have expired when he was still in federal custody). The circuit court denied the motion.

In a decision authored by Judge Anderson, the court of appeals affirmed. It concluded that the defendant was not entitled to credit under section 973.15(5), which provides that "[a] convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction." The defendant's state sentence of confinement was conditionally completed when he was paroled by Wisconsin authorities in 2001 (see ¶ 17). "[A]t the time [the defendant] was serving his federal sentence, he did not have a custodial sentence to which the federal sentence could be, or could be presumed to be, concurrent. The prospect of [the defendant] serving any further Wisconsin prison sentence at the time of the United States sentence was speculative. Wisconsin Stat. § 973.15(5) does not apply to [the defendant's] situation. We affirm the circuit court's conclusion that under Wis. Stat. § 973.155 and the teaching of [State v.] Rohl, [160 Wis. 2d 325, 466 N.W.2d 208 (Ct. App. 1991)], [the defendant's] credit request cannot be granted because it would constitute impermissible double credit against two nonconcurrent sentences" (¶ 18) (citations omitted).

Judge Nettesheim filed a concurring opinion.

State v. Cockrell, 2007 WI App 217 (filed 20 Sept. 2007) (ordered published 31 Oct. 2007)

The court of appeals, in an opinion authored by Judge Vergeront, affirmed the defendant's convictions for multiple violent felonies arising out of a shooting. In his first claim of error, Cockrell argued that the prosecutor impermissibly commented on his right to silence when questioning him about a police interrogation. Due process protections generally foreclose prosecutors from commenting on a defendant's post-Miranda silence during a custodial interrogation. The record established, however, that Cockrell himself opened the door to this issue on direct examination when he testified that he turned himself in to police and intended to cooperate in the investigation. Cockrell further testified that he demanded an attorney be present "so his story would not be misinterpreted by police" (¶ 26).

"It is true that, if the jury disbelieved Cockrell's reason for not telling the police about the man in the back seat, the jury might believe that the real reason he did not tell the police is that there was no man in the back seat. We agree with Cockrell that this suggestion of fabrication is implicit in the cross-examination and is the thrust of the challenged portion of the prosecutor's rebuttal. However, we do not agree this is fundamentally unfair. Had Cockrell said nothing about declining to talk to the police about the shooting incident itself, the State under Doyle could not have used Cockrell's post-Miranda silence to suggest that his trial testimony about the man in the back seat was fabricated. However, Cockrell chose to volunteer what he did and did not say to the police and why. In these circumstances it is not fundamentally unfair to permit the State to `explor[e] the soundness of that explanation [for not telling the police that he acted in self-defense] by measuring it against the defendant's subsequent failure to assert it … [after he obtained counsel]'" (¶ 30) (citations omitted).

The record also revealed that the prosecutor did not ask the jury to make any direct inferences of guilt from Cockrell's silence but instead used the fact of silence only for impeachment purposes (see ¶ 31). There was, in short, no violation of Cockrell's due process rights.

Several other issues also were raised. The court of appeals held that Cockrell waived any error in a jury instruction by failing to object to it before the trial court (see ¶ 36). Cockrell also argued that the prosecutor improperly commented on the failure of Cockrell's wife to appear and testify in response to a prosecution subpoena. This was not, said the court, a "missing witness" scenario, because the state did not ask the jury to draw an adverse inference from Cockrell's failure to call his wife as a witness. Instead, the prosecution commented on her failure to appear in response to its subpoena when other evidence showed that she was driving the car when the shooting occurred (see ¶ 44).

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Evidence

Roy v. St. Luke's Med. Ctr., 2007 WI App 218 (filed 5 Sept. 2007) (ordered published 31 Oct. 2007)

A jury found that a radiologist who conducted an angiogram was not negligent. The main issue on appeal was whether the trial court properly admitted two video animations. The plaintiff was not informed of the animations until the fifth day of the eight-day-long trial. The purpose of the animations was to depict "the parties' theories on how the stent was dislodged" (¶ 5).

The court of appeals, in an opinion written by Judge Curley, found no error and affirmed. First, the court rejected the plaintiff's argument of "unfair surprise." "We acknowledge that while `surprise' is not included in § 904.03 as a basis on which to exclude otherwise relevant evidence, `testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues'" (¶ 12). At no point did the plaintiff move for a continuance or even request a motion in limine.

Second, the trial court properly admitted the animations as demonstrative evidence, which constituted a "graphic illustration" of the defense expert's previously disclosed opinions (see ¶ 18). Third, the animations were not speculative. Defense experts are allowed to testify to possibilities (instead of "probabilities") (see ¶ 20). Moreover, the plaintiff did not attack the expert's opinion testimony, which the animations only illustrated.

Finally, "Roy argues that the trial court erred in admitting the video animation into evidence because the animations were not a fair and accurate portrayal and their probative value was substantially outweighed by their prejudicial effect. Roy attempts to distinguish the animations in her case from the motion picture of a simulated crash utilizing dummies that was allowed into evidence in Maskrey v. Volkswagenwerk Aktiengesellschaft, 125 Wis. 2d 145, 370 N.W.2d 815 (Ct. App. 1985)" (¶ 22).

The court of appeals held that the animation evidence was sufficiently authenticated and had probative value that was not outweighed by unfair prejudice. "The animations presented, in simple terms, the two positions of the parties, and we agree with the trial court's determination that the result was no different than if Dr. Vogelzang had hand drawn illustrations during his testimony to depict the parties' theories. Dr. Vogelzang was subjected to a vigorous cross-examination, during which he admitted that his testimony at trial differed from that provided during his deposition and that the animation of the defendants' theory, in turn, differed from his trial testimony. Furthermore, he admitted during cross-examination that he had never dislodged a stent, so he would not know what force would need to be exerted to do so. As a result, we reject Roy's assertion that she was in any way prejudiced by the alleged problems with the animations and conclude that the trial court did not erroneously exercise its discretion in permitting the jury to see the animations" (¶ 30).

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Open Records Law

Stone v. Board of Regents, 2007 WI App 223 (filed 13 Sept. 2007) (ordered published 31 Oct. 2007)

Stone requested certain records from the U.W.-Madison Survey Center. The circuit court granted summary judgment against him and dismissed his mandamus action. The court accepted as true Stone's assertion that the university destroyed what it believed were identical copies of otherwise available documents that were responsive to Stone's open records request. Stone contended that some of these allegedly identical copies were not identical but instead were altered in some fashion. He also contended that, once he submitted his open records request to the university, the university was prohibited under Wis. Stat. section 19.35(5) from destroying any copies of responsive documents because such documents are "records" as defined by Wis. Stat. section 19.32(2). (The court of appeals noted that "nothing in the record … suggests that any of the destroyed copies were altered in any particular way" (¶ 18 n.8).)

The circuit court granted summary judgment in favor of the university. The court ruled that a copy of a "record" is not itself a record within the meaning of the open records law and, therefore, the university did not violate the prohibition on destroying requested records (see ¶ 1). In a decision authored by Judge Lundsten, the court of appeals affirmed.

The appellate court "agree[d] with the University that it would be absurd to construe the term `record' in Wis. Stat. § 19.32(2) as including an identical copy of an otherwise available record. `Record' is defined in § 19.32(2) as `any material on which ... information is recorded or preserved, regardless of physical form or characteristics' (emphasis added). The obvious purpose of the open records law is to provide access to the recorded information in records. Granting access to just one of two or more identical copies fulfills this purpose. Likewise, it would be absurd to say that an authority or custodian violates Wis. Stat. § 19.35(5) by destroying an identical copy of an otherwise available record. As the University notes, such an interpretation would mean that the statute is violated even if multiple extra copies of an electronic record are printed out by mistake and then the extra identical copies are destroyed" (¶ 20). "In sum, we agree with the circuit court that the plain language of `record' in Wis. Stat. § 19.32(2) and Wis. Stat. § 19.35(5) does not include identical copies of otherwise available records" (¶ 27).

The court noted that "[i]f a `copy' differs in some significant way for purposes of responding to an open records request, then it is not truly an identical copy, but instead a different record. As Stone points out, some alterations, such as a copy with an added handwritten note or a copy that, unlike the original, indicates it was sent to additional parties, may turn the copy into a distinct record that must be disclosed. The University does not, nor could it reasonably, dispute this point" (¶ 18).

In a footnote the court of appeals observed that "[t]his case involves a single open records request to a single authority subject to the law. We do not address the situation in which an authority or legal custodian has an identical copy of a responsive record kept by a different authority or legal custodian. That is, we do not address whether an authority or legal custodian may deny access to an identical copy because the `original' record is kept by a different authority or legal custodian" (¶ 1 n.2).

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Sexually Violent Persons

State v. Smalley, 2007 WI App 219 (filed 19 Sept. 2007) (ordered published 31 Oct. 2007)

The court of appeals, in an opinion written by Judge Brown, affirmed the circuit court's commitment of Smalley as a sexually violent person under Wis. Stat. chapter 980. Smalley raised two issues. On the first issue, the court of appeals held that although the state's expert clearly "misstated the required risk of reoffense for commitment" (¶ 2), the expert's "ambiguous and confusing misstatement" would not have persuaded any reasonable jury (¶ 12).

A second issue on appeal concerned the admissibility of expert testimony concerning the defendant's dangerousness based on various "actuarial instruments used to predict the likelihood of reoffense" (¶ 15). "The output of the instruments is the percentage of offenders with similar scores to the offender who were recharged with or reconvicted of a sexual offense in a given time span. For example, Dr. Jurek used the Rapid Risk Assessment of Sex Offender Recidivism (RRASOR) to determine that 37% of offenders with Smalley's score were again convicted of a sexual offense within ten years" (id.). Because trial counsel failed to object to this testimony, the court of appeals looked to the interests of justice based on Smalley's contention "that the evidence of his dangerousness alone may have persuaded the jury to commit him, without regard to whether he was dangerous as a result of his mental disorder" (¶ 19). The court was not persuaded. The testimony was relevant because Smalley's dangerousness was a fact of consequence. Other evidence pointed to his mental disorder and how it related to his dangerousness. "Evidence of dangerousness, while insufficient on its own to support a commitment, is clearly relevant to the ultimate determination that the jury must make: dangerousness due to mental disorder" (¶ 20).

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Torts

Clayton v. American Family Ins. Co., 2007 WI App 228 (filed 25 Sept. 2007) (ordered published 31 Oct. 2007)

Clayton was seriously injured when a car owned by Williams ran over her. The injury occurred when another driver hit Williams' car, pushing it on the sidewalk and over Clayton, who wound up beneath it. Clayton claimed she was in "no pain" until Williams drove the car off the curb and pinned her, crushing her shoulder and burning her with the exhaust system. Williams denied driving the car. The circuit court granted summary judgment in Williams' favor on the ground that his conduct fell within Wis. Stat. section 895.48(1), the Good Samaritan statute.

The court of appeals, in a decision authored by Judge Fine, reversed because issues of fact precluded summary judgment. "Williams denied driving his car over Clayton. Thus, there is an issue of fact as to whether he did or did not. Further, there is also an issue of fact whether, if he did drive his car over Clayton, he made an `initial evaluation' of Clayton's condition and drove the car forward as part of his rendering of `emergency care,'… or whether he did so in `good faith.' The summary judgment [r]ecord is wholly silent on these matters because Williams denied that he drove the car over Clayton, and this per force means that he did not submit summary judgment material in support of his contention that the Good Samaritan statute protects whatever he did, on which he had the burden of proof" (¶ 7).

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