Wisconsin
Lawyer
Vol. 81, No. 8, August
2008
Supreme Court Digest
This column summarizes
selected
published opinions of the Wisconsin Supreme Court (except those
involving lawyer or judicial discipline, which are digested elsewhere in
the magazine). Prof. Daniel D. Blinka
and Prof. Thomas J. Hammer invite comments and questions about the
digests.
They can be reached at the Marquette University Law School, 1103 W.
Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
Appellate Procedure
Final Order - Waiver
Sanders v. Estate of
Sanders, 2008 WI 63 (filed 18 June 2008)
This is a much-litigated probate proceeding. The principle issue
before the supreme
court was whether a circuit court order dated Feb. 10, 2006, was a final
order for purposes of
this appeal, or whether the appellant should have appealed from an
earlier order. The court of
appeals dismissed the appeal on the ground that an earlier order was the
"final order" from
which the appeal should have been taken.
The supreme court reversed and remanded in an opinion authored
by Justice Crooks. The
court held that the February 2006 order was "final" within the
meaning of the case law, and that
the appellant had not waived her right to appeal by stipulating to the
entry of the order (a
fact-intensive discussion that will not be further addressed). The
finality determination was
based on the February 2006 order's disposition of issues, particularly
in light of a plethora
of earlier rulings. "While a finality determination is not always
clear-cut, here we are
satisfied that this circuit court order was the one that disposed of the
entire matter in litigation,
at least in regard to the relevant real estate special proceeding, and
it specifically noted
and preserved Sanders' right to appeal from the order. Just as we
required in
Wambolt [2007 WI 35] and Tyler [2007 WI 33], final orders
and final judgments in probate cases should also
state that they are final for the purposes of an appeal, if that is the
intention of the
parties involved and of the circuit court" (¶ 41).
Unpublished Decisions - Court of Appeals - Overruling Cases
City of Sheboygan v.
Nytsch, 2008 WI 64 (filed 19 June 2008)
In what the supreme court admitted was an "unusual"
practice, it issued a per curiam
decision that granted a pending petition for review solely for the
purpose of directing the
court of appeals to vacate language that appeared in its opinion. In the
offending footnote,
the court of appeals observed that an unpublished court of appeals
decision, on which the
circuit court had relied, was itself "wrongly decided."
Although the court of appeals "may not
overrule, modify or withdraw language from a published court of appeals
decision," the
supreme court asked whether "the court of appeals [may] analyze -
and effectively overrule - a
decision that wholly lacks either precedential or persuasive authority,
as a matter of law?
Certainly, the court's analysis explains why the court of appeals
overruled the circuit court's
ruling. But, in so doing, the court [of appeals] implicitly acknowledges
that the [earlier]
decision, albeit unpublished, does indeed have persuasive authority.
This [supreme] court is fully
aware that appellate courts and lawyers alike look to unpublished
decisions to bolster legal
arguments and to ensure consistency in outcome. However, our current
rules do not sanction
this practice" (¶ 5). The per curiam order closed by noting
that the supreme court will conduct
a public hearing at a date to be determined on a proposed rule change
that would permit
citation of unpublished decisions. [Editors'
Note: The hearing will be held on Oct. 14, 2008.]
Justice Ziegler did not participate in this decision.
Top of Page
Arbitration
Separation of Powers - Vacated Order
Racine County v.
International Ass'n of Machinists & Aerospace Workers, Dist.
10, 2008 WI 70 (filed 26 June 2008)
Racine County's family court services were provided by county
employees who were members
of a union (IAM). A family court commissioner, Van Kampen, essentially
orchestrated an
arrangement by which several county employees "retired" and
then were rehired by the county as
independent contractors to perform the same services. IAM filed a
grievance. After a hearing, the
arbitrator sustained the grievance on the ground that Racine County had
violated the collective
bargaining agreement. The arbitrator ordered that the county cease and
desist from continuing
the service contract, but the arbitrator refrained from reinstating the
former employees
because they had "retired."
On appeal, the circuit court vacated the arbitrator's award on
the ground that it
violated the separation of powers. In particular, "Wis. Stat.
§ 767.405(2) gave the director
discretion on how to provide the services in question, and the director
was free to fill the
positions with county employees, independent contractors, or a mix of
both options. The circuit
court determined that the three positions were not bargained for
positions and that the
positions were vacant by virtue of retirements and a voluntary layoff.
As a result, the director
had discretion in filling these statutorily mandated positions.
Accordingly, the union had no
vested right in the three positions, and the union could not tell the
director how to fill
the positions. The circuit court determined that the case was a
separation of powers case, and
the arbitrator's award ignored the ramifications of Wis. Stat.
§ 767.405 by eviscerating the
director's statutory authority" (¶ 8). A divided court of
appeals reversed the circuit court.
The supreme court, in an opinion written by Justice Crooks,
reversed the court of
appeals. The supreme court said that the circuit court properly vacated
the arbitrator's award,
which violated section 767.405 and the constitutional separation of
powers
(see ¶ 16). "[T]he arbitrator's award in the present
case would similarly abrogate the director's statutory
authority as the agent of the circuit court judges and
the
arbitrator's award must, therefore, be
vacated" (¶ 20). Nor could the collective bargaining agreement
be harmonized with the
statute (see ¶ 21). "Van Kampen is an agent of the
judicial branch, and Wis. Stat. § 767.405
vests discretion in him on how to deliver the statutorily-mandated
services. If Van Kampen had
initially filled the positions in question here, he clearly could have
used independent
contractors. The positions were not bargained-for positions, and they
were created by statute.
Accordingly, the circuit court was correct in holding that Van Kampen
`had the authority under
the statute to either hire employees to do the work, contract out to do
the work or to combine
the two methods of providing services in his discretion, subject only to
the oversight of the
Judiciary that appointed him.' There is no requirement in
§ 767.405 that the services be
provided by county employees, and subcontracting is clearly allowable
under the statute" (¶ 23).
The majority also held that the arbitrator exceeded her authority under
Wis. Stat. section
788.10 by not considering section 767.405 and relevant case law
(see ¶ 36).
Justice Bradley dissented, joined by Chief Justice Abrahamson
and Justice Butler. The
dissenting justices argued that the majority ignored the process by
which the county
eliminated the jobs.
Top of Page
Civil Procedure
Statute of Limitation - Tolling
C. Coakley Reloc. Sys. v.
City of
Milwaukee, 2008 WI 68 (filed 25 June 2008)
Roadstar LLC leased a parking lot to another business, Coakley.
The city acquired
Roadstar's property in January 2002 and notified Coakley that it must
vacate. In October 2002, a
circuit court granted the city a writ that
"ousted" Coakley from the property; the city took
physical possession of the property on Oct. 14, 2002. Coakley filed a
notice of claim on Dec. 13,
2004, and filed a formal complaint in September 2005. The circuit court
and the court of
appeals concluded that Coakley's complaint was barred by the two-year
statute of limitation.
The supreme court affirmed in an opinion authored by Justice
Ziegler. While the court
was "sympathetic" to the substantive merits of Coakley's
demands for compensation, "the statute
of limitations dictates that Coakley's claims are time barred"
(¶ 15). "Under
Wis. Stat. § 32.20, the legislature specifically
stated that the statute of limitations was to begin once the
condemnor took `physical possession.' This legislative directive is
clear. In the case at hand,
it is undisputed that the City took physical possession on October 14,
2002. Therefore,
Coakley should have filed its Wis. Stat. §§ 32.19 and
32.195 claims within two years of October
14, 2002. However, Coakley did not file a notice of claim, pursuant to
Wis. Stat. § 893.80,
until December 13, 2004. Critically, it did not file its first complaint
until September 29, 2005.
As a result, Coakley's claims are time barred" (¶ 23). The
supreme court also held that the
tolling statute, Wis. Stat. section 893.13(2), did not apply to
Coakley's predicament
because Coakley did not file a claim for relocation benefits under Wis.
Stat. sections 32.19 and
32.195 until after the statute of limitation had expired. In so holding,
the court detailed
Coakley's pleadings and responses in the city's proceeding that resulted
in Coakley being forced to
vacate.
Justice Roggensack concurred. She wrote separately to point out
that the tolling issue
may have been viewed "differently" had "Coakley either
pled a defense or filed a counterclaim"
in the city's action (¶ 32).
Top of Page
Criminal Law
Sexual Assault - Deceased Victim
State v. Grunke,
2008 WI 82 (filed 9 July 2008)
The state charged three men with attempted third-degree sexual
assault based on
evidence that they planned to disinter a specific female corpse so that
one of them could have
sexual intercourse with it. They dug a hole above the grave but were
unable to pry open the
concrete vault containing the victim's remains. Soon after the men
discovered their inability to
access the body, a car drove into the cemetery and the men fled. After a
preliminary hearing,
the circuit court denied bind-over on the attempted third-degree sexual
assault charge; it
concluded that the statute did not apply to circumstances in which the
victim is deceased due to
no act of the accused (see ¶ 6). In a published decision the
court of appeals affirmed.
See 2007 WI App 198. In a majority decision authored by Justice
Roggensack, the supreme court
reversed the court of appeals.
The Wisconsin Criminal Code defines third-degree sexual assault
as follows: "Whoever
has sexual intercourse with a person without the consent of that person
is guilty of a Class
G felony...." Wis. Stat. § 940.225 (3). Subsection 7 of the
statute provides that the
sexual assault statute "applies whether a victim is dead or alive
at the time of the sexual contact
or sexual intercourse."
The supreme court accepted review of this case for the purpose
of deciding "whether
Wis. Stat. § 940.225 criminalizes sexual contact or sexual
intercourse with a victim already dead
at the time of the sexual activity when the defendant did not cause the
victim's death" (¶ 20).
It concluded that "by its plain terms, Wis. Stat.
§ 940.225 prohibits the conduct that the
defendants are alleged to have attempted
. The language of the
statute is clear on its face. A
reasonably well-informed person would understand the statute to prohibit
sexual intercourse with
a dead person" (¶ 37). For these and other reasons articulated
in the opinion the majority
reversed the court of appeals and remanded the matter to the circuit
court for further
proceedings consistent with its decision.
Chief Justice Abrahamson filed a concurring opinion. Justice
Bradley filed a dissent
that was joined in by Justice Butler.
Top of Page
Criminal Law / Procedure
Securities Fraud - Expert Legal Opinion - Execution of Search
Warrant at
Business Office - Determination of Habitual Criminality by Court
State v. LaCount,
2008 WI 59 (filed 10 June 2008)
LaCount was employed by Gates, Paul & Lear L.L.C. (GP&L)
as a debt negotiator and
office manager. Between June 1998 and October 1999, he was involved in
three separate business
transactions that led to the charges in this case: 1) the liquidation of
the corporate assets of
SMC Machine Inc. (SMC); 2) a purported investment of $64,000 by J in a
real estate venture; and
3) the alleged misappropriation of funds that belonged to Mirr Tree
Service (MTS).
Before LaCount's arrest, police officers executed a search
warrant at the office of GP&L
and seized approximately 500,000 pages of documents. The search warrant
sought financial
records that related to the clients named in the warrant's application,
specifically SMC and CDM
Machine Corp. During their search, the police officers discovered
additional evidence that
related to MTS and to J, who were not named in the warrant. The evidence
led to the state's
filing of a 10-count complaint against LaCount, which included charges
in regard to both MTS and
J. After the preliminary hearing, one count was dismissed. LaCount was
charged with the
remaining nine counts in an information filed by the state. A jury
convicted him in a trial that
was limited to the securities fraud charge; he subsequently entered
guilty pleas to several of
the remaining counts. LaCount appealed only two of the convictions:
theft by bailee (relating
to MTS); and securities fraud (based on the purported sale of a security
to J). The court of
appeals affirmed the convictions in a published decision.
See 2007 WI App 116. In a majority decision authored by Justice
Crooks, the supreme court affirmed the court of appeals.
First, the supreme court held that the circuit court did not
erroneously exercise its
discretion in admitting expert opinion testimony by an attorney, Cohen,
that the defendant
had engaged in a securities transaction. "Cohen was properly
allowed to testify on the basic
factual characteristics of an investment contract, in order to assist
the jury in determining
whether the transaction with [J] involved a security. We are further
satisfied that Cohen did
not impermissibly testify on a legal issue, contrary to LaCount's claim
that Cohen improperly
testified on the definition of an investment contract. However, even if
Cohen's [description of
a security] was overly broad, the jurors were properly instructed that
they were not bound by
any expert's opinion, that they were the sole judges of the facts, and
that the court was the
sole judge of the law. Jurors are presumed to have followed jury
instructions" (¶¶ 21-23).
Second, the supreme court held that the state proved beyond a
reasonable doubt that
LaCount sold J a security, in this case, an investment contract. LaCount
argued that there was a
failure of proof because the state did not establish that J relied
solely on LaCount's efforts
to earn a profit, which LaCount alleged was required. The supreme court
disagreed. "We are
not persuaded by LaCount's argument ... that [J] had to depend solely on
LaCount's efforts to
realize a profit for the transaction to be an investment contract"
(¶ 30). "We agree with the
Fore Way Express [v. Bast, 178 Wis. 2d 693, 505 N.W.2d 408 (Ct.
App. 1993)] court that an
investor may have a role in the managerial efforts of an investment
contract, so long as the
investor does not provide the essential managerial efforts for the
investment
contract" (¶ 31).
Third, the supreme court held that the police officers did not
exceed the scope of
the search warrant when they seized documents while executing the
warrant. LaCount claimed that
the search warrant authorized only the search for and seizure of records
that related to
GP&L's business with specifically named clients. LaCount also argued
that the search warrant did
not allow the police officers to search his personal office within
GP&L's office. The court
was satisfied that the warrant authorized the police to search all of
GP&L's premises,
including LaCount's personal office therein
(see ¶ 40). Finding this case analogous to
State v. DeSmidt, 155 Wis. 2d 119, 454 N.W.2d 780 (1990), the
court concluded that "the application for
the search warrant set forth probable cause to believe that a pervasive
scheme to defraud
existed, which made the seizure of all of GP&L's business records
permissible. As a result, the
seizure of documents from GP&L's office was permissible,
notwithstanding the large number of
documents seized. Furthermore, we are satisfied that, when read as a
whole, the search warrant
authorized the search for and the seizure of more than merely the
records of the clients specified in
the warrant's application. The warrant authorized the search for and
seizure of any paper or
computer records that related `to any type of bank account or investment
account owned by'
GP&L, LaCount, or [K]. The search warrant also authorized the search
for and seizure of any paper
or computer records that related to GP&L's payroll, telephone logs,
accounts payable, or
accounts receivable. The warrant further authorized the search for and
seizure of any paper or
computer records that indicated `the names of past and present employees
of [GP&L] or past and
present owners or shareholders in [GP&L].' In addition, and more
generally, the warrant authorized
the search for and seizure of computer hardware, computer software, and
computer
instructions. Because of the wide breadth of the search warrant, we are
satisfied that the evidence that
the State used both at the preliminary hearing and also at the trial to
convict LaCount came
within the scope of the search warrant" (¶¶ 43-44).
Finally, the supreme court held that the circuit court's finding
that the defendant was
a habitual criminal under Wis. Stat. section 939.62 did not violate the
defendant's right to
a jury trial on that matter. At issue was the propriety of the circuit
judge (rather than
the jury) determining whether the defendant's prior convictions occurred
within the five-year
look-back period specified in the habitual criminality statute. Recent
U.S. Supreme Court
decisions hold that "a trial court judge, rather than a jury, is
allowed to determine the
applicability of a defendant's prior conviction for sentence enhancement
purposes, when the necessary
information concerning the prior conviction can be readily determined
from an existing
judicial record" (¶ 52). Further, the Wisconsin Supreme Court
recently held that a presentence
report, which listed the defendant's crime and date of conviction, was
sufficient to "constitute
an official report that would serve as prima facie proof of habitual
criminality" for purposes
of a penalty-enhancement statute. State v.
Bonds, 2006 WI 83, ¶48, 292 Wis. 2d 344, 717
N.W.2d 133. Said the court in the present case, "We are satisfied
that the same is true in
[LaCount's case], because the presentence report listed LaCount's period
of actual confinement on
the prior conviction in question. We are satisfied that the
presentence report, combined with
the certified judgment of conviction, was a judicial record, not an
executive branch record,
even though it was prepared by the Wisconsin Department of Corrections.
As a result, we are
satisfied that the circuit court's finding that LaCount was a habitual
criminal did not
violate LaCount's right to a jury trial, because the relevant
information could be readily
determined from a judicial record, here the presentence report"
(¶ 53).
Justice Bradley filed a concurring opinion disagreeing with the
majority's discussion
regarding the seizure of documents during execution of the search
warrant; Chief
Justice Abrahamson and Justice Butler joined this concurrence. Justice
Roggensack filed a
concurring opinion disagreeing with the majority regarding the
admissibility of the expert opinion
testimony as described above; Justice Butler joined this concurrence.
Top of Page
Criminal Procedure
Guilty Pleas - Read-in Offenses
State v.
Straszkowski, 2008 WI 65 (filed 19 June 2008)
This case involves Wisconsin's "read-in" procedure in
criminal cases. A read-in is a
crime that is uncharged or that is dismissed as part of a plea agreement
but which the
defendant agrees may be considered by the court in fashioning a sentence
for the crime(s) of which he
or she is convicted. The ultimate legal question before the supreme
court in this case was
whether the read-in procedure requires a defendant to admit guilt to the
read-in offense or the
circuit court to deem the read-in offense as admitted by the defendant.
In a majority opinion authored by Chief Justice Abrahamson, the
supreme court answered
the ultimate question, and it provided additional guidance on the
read-in procedure. "[W]e
conclude that Wisconsin's read-in procedure does not require a defendant
to admit guilt of a
read-in charge for purposes of sentencing and does not require a circuit
court to deem the defendant
to admit as a matter of law to the read-in crime for purposes of
sentencing. A circuit
court should not deem a defendant's agreement to have a charge read in
for consideration at
sentencing and dismissed on the merits to be an admission of guilt of
the read-in charge for
purposes of sentencing" (¶ 92).
"Except when a defendant does in fact admit guilt of a
read-in charge, stating that a
defendant `admits guilt' of a read-in charge for purposes of sentencing
is more likely to
confuse than to guide the decisions made by a defendant or a sentencing
court. It is a better
practice for prosecuting and defense counsel and circuit courts to omit
any reference to a
defendant admitting a read-in crime, except when the defendant does
admit guilt, and simply to
recognize that a defendant's agreement to read in a charge affects
sentencing in the following manner:
a circuit court may consider the read-in charge when imposing sentence
but the maximum penalty
of the charged offense will not be increased;
a circuit court may require a defendant to
pay restitution on the read-in charges;
and a read-in has a preclusive effect in that the State
is prohibited from future prosecution of the read-in
charge" (¶ 93). "To avoid any
confusion, prosecuting attorneys, defense counsel, and circuit courts
should hereafter avoid ... the
terminology `admit' or `deemed admitted' in referring to or explaining a
defendant's agreement
to read in charges" (¶ 94).
The supreme court withdrew language in the case law that might
be read as intimating
that when a charge is read in, a defendant must admit or is deemed to
admit the read-in charge
for sentencing purposes (see ¶ 95).
Justice Butler filed a concurring opinion that was joined in by
Justice Ziegler.
John Doe Investigations - Power to Subpoena Witnesses Vested
Exclusively in
Presiding Judge
State ex rel. Hipp v.
Murray, 2008 WI 67 (filed 20 June 2008)
This appeal concerns John Doe investigations and the power to
subpoena witnesses to
appear at such proceedings. Wis. Stat. section 968.26 provides in
relevant part as follows: "If
a person complains to a judge that he or she has reason to believe that
a crime has been
committed within his or her jurisdiction, the judge shall examine the
complainant under oath and
any witnesses produced by him or her and may, and at the request of the
district attorney
shall, subpoena and examine other witnesses to ascertain whether a crime
has been committed and
by whom committed...." According to the supreme court, "The
statute provides that the
complainant, the district attorney, and the judge each has the ability
to bring witnesses to the John
Doe proceeding. It sets forth three distinct ways in which this may
happen. Once the judge
determines that there is reason to believe a crime has been committed,
the judge (1) shall
examine the complainant and witnesses `produced by' the complainant; (2)
at the district
attorney's request the judge shall subpoena and examine other witnesses;
and (3) the judge may choose
to subpoena and examine `other witnesses,' that is, witnesses neither
produced by the
complainant nor requested by the district attorney" (¶ 22).
The question before the court was whether the power to subpoena
witnesses to appear at
a John Doe hearing is vested exclusively in the judge. The petitioner
(an inmate of a
correctional facility who was petitioning for an investigation into the
alleged theft of personal
property) argued that enforceable subpoenas could also be issued at his
request by the clerk of
court pursuant to the general subpoena statute (Wis. Stat. §
885.01). In a published decision
the court of appeals concluded that subpoenas issued by the clerk of
court to compel the
attendance of witnesses at John Doe proceedings were valid.
See 2007 WI App 202.
In a majority opinion authored by Justice Bradley the supreme
court concluded that "a
John Doe judge has exclusive authority to subpoena witnesses in a John
Doe proceeding based upon
the language of the John Doe statute (§ 968.26), the history
of its application, and principles
of statutory construction. The case does not present the issue of
whether a John Doe judge
is required to subpoena every witness that a John Doe petitioner
requests. We save that issue
for another day" (¶ 52).
As a procedural matter, the supreme court agreed with the court
of appeals that a writ
of mandamus should be granted in this case and the circuit judge
instructed to issue subpoenas
for the witnesses requested by the petitioner.
Chief Justice Abrahamson did not participate in this case.
Justice Butler filed a
concurring opinion.
Statutes of Limitation - Sexual Assault -Application of Tolling
Provision to Persons Not Publicly Residents of Wisconsin
State v
MacArthur, 2008 WI 72 (filed 26 June 2008)
This case involves allegations of sexual abuse involving several
children. The
incidents allegedly occurred between 1965 and 1972. The defendant was
not charged with these crimes
until 2006. He moved the circuit court to dismiss all counts, contending
that they were barred by
the statute of limitation. "In short, MacArthur argued that the
six-year statute of
limitations, Wis. Stat. § 939.74 (1965-72), had expired, thus
depriving the court of jurisdiction.
Moreover, MacArthur argued that the complaint failed to offer any proof
that MacArthur left the
state, which would be required to give rise to the tolling provision in
Wis. Stat. § 939.74(3)
(1965-72). In the alternative, MacArthur argued that even if
the State could prove MacArthur was
not a resident of Wisconsin after 1970, the prosecution was barred
because Wis.
Stat. § 939.74(2)(c) (2005-06) prohibits prosecution after a
victim reaches the age of 45 years
old, and in this case, the victims were older than 45 years old when the
complaint was filed" (¶
4). The circuit court denied the motion to dismiss, and the court of
appeals granted permission
for the defendant to appeal this nonfinal order. The court of appeals
then certified the case
to the supreme court, which granted certification. In a majority
decision authored by
Justice Ziegler, the supreme court affirmed the circuit court.
Between 1965 and 1972 the statute of limitation for the felonies
with which the defendant
is charged was six years (see ¶ 10). The court concluded
that this statute applies in the
defendant's case (see ¶ 2), and that a series of amendments
to section 939.74, which were
enacted between 1987 and the date on which the defendant was charged and
which altered the time
for commencing certain child sex offense prosecutions according to the
age of the victim, did
not apply to the defendant's case (see ¶ 26). Thus, the
defendant cannot avail himself of a
statute of limitation defense on the basis that his victims were older
than 45 years old when the
complaint was filed, despite the fact that this statute of limitation
provision was in effect
at the time he was charged.
Another issue in this case involved the tolling provision of
section 939.74(3), which
provides that in the computation of time for statute of limitation
purposes, the time during
which the actor was not publicly a resident within this state shall not
be included. The court
of appeals certified two issues regarding the tolling provision. The
first was "whether the
judge or the jury decides if the statute of limitations bars prosecution
where the State argues
that the statute of limitations has been tolled because the defendant
left the State of
Wisconsin" (¶ 7). The second certified question was "what
burden of proof applies to resolving whether
the statute of limitations has been tolled"
(id.). Responding to these questions, the supreme
court adopted an approach "consistent with the federal court's
approach to the tolling provision
in 18 U.S.C. § 3290" (¶ 53). Said the court, "After
the defendant makes a statute of
limitations challenge, the State bears the burden of showing, at a
pretrial proceeding, that Wis.
Stat. § 939.74(3) has been satisfied by a preponderance of the
evidence. However, at trial, the
jury must determine the date or date range of the charged offense beyond
a reasonable doubt.
This can be accomplished by the general verdict's language or when
appropriate with a special
verdict. If the date found by the jury creates a bar against prosecution
because of the statute
of limitations and the court's pretrial findings regarding tolling, the
court must then rule
accordingly on the issue" (¶ 50).
Justice Bradley filed a concurring opinion. Justice Prosser did
not participate in
this case.
Newly Discovered Evidence - Expert's Lies
State v. Plude,
2008 WI 58 (filed 10 June 2008)
Plude was charged with murdering his wife. At trial, prosecution
experts and defense
experts dramatically disagreed over how the death occurred. The jury
found Plude guilty. After
trial the defense learned that one prosecution expert had lied about his
qualifications. The
defense raised this and other issues but the circuit court refused to
grant a new trial. The court
of appeals affirmed.
The supreme court, in an opinion written by Justice Roggensack,
reversed and remanded
the case for a new trial based on newly discovered evidence. "We
conclude that in a trial rife
with conflicting and inconclusive medical expert testimony about a case
the circuit court
observed was based on `circumstantial evidence,' there exists a
reasonable probability that, had
the jury discovered that Shaibani lied about his credentials, it would
have had a reasonable
doubt as to Plude's guilt. Our conclusion is based on Shaibani's
testimony as a quasi-medical
expert notwithstanding his lack of a medical education and on the link
that Shaibani's testimony
provided to other critical testimony that related to the manner of [the
wife's]
death" (¶ 36). Shaibani was the only prosecution expert who
offered a definitive, conclusive opinion
that Plude had murdered his wife. All other expert testimony was
"inconclusive," with the
single exception of testimony from a defense expert who offered an
exculpatory opinion (see ¶ 46).
Justice Ziegler concurred. She wrote separately to express her
disagreement with the
majority's conclusion that the newly discovered evidence standard
justified the new trial.
Voice Stress Tests - Statements
State v. Davis,
2008 WI 71 (filed 26 June 2008)
During the defendant's trial on child sexual assault charges,
the state introduced
statements the defendant made to police officers after he took a voice
stress test. The
defendant appealed his conviction and the trial court's denial of his
motion to suppress. The court
of appeals certified the appeal to the supreme court for clarification
of the standards
governing the admissibility of statements made close in time to voice
stress tests.
The supreme court affirmed in an opinion written by Justice
Ziegler. At issue was the
admissibility of statements made by a defendant after the defendant has
taken a polygraph or
voice stress test; statements made during such tests are inadmissible.
The court treated these
two tests as equivalent (see ¶ 20). The governing analysis
requires the court "to determine
whether a defendant's statement was given at an interview totally
discrete from the voice stress
analysis. If the defendant's statement was given at an interview that
was totally discrete from
the voice stress analysis test, its admission is not automatically
precluded. The statement,
however, is also subject to ordinary principles of voluntariness.
Therefore, if the statement
is given at an interview that is totally discrete from the voice stress
analysis test and
the statement is voluntarily given, the statement is admissible"
(¶ 21).
On the record before it, the court held that the voice stress
test and the subsequent
statement were discrete events. This determination is governed by a
multi-factor analysis
(see ¶23). Although little time passed between the
examination and the interview, "time alone is not
dispositive" (¶ 31). In finding that the two were discrete
events, the majority opinion
emphasized the following: "Two different officers were involved -
one conducted the examination and
the other conducted the interview. Before any statement was made,
Detective Buenning stated,
`I'm finished here,' closed up his laptop, and left the room with all
the voice stress
analysis equipment. The interviewing officer did not refer to the
polygraph examination or its
results during the interview, and the examination and interview took
place in different rooms" (¶
30). The court also determined that the interview statements were
"voluntary" for due process
purposes.
Finally, the supreme court addressed concerns raised by the
court of appeals in its
certification, and the state in its brief, to the effect that no
justifiable reason supported
the exclusion of statements made during a polygraph or voice
stress test. The court said that
the discrete-event standard is compelled by rules of privilege found in
Wis. Stat. chapter
905, which effectively suppress statements made during the polygraph (or
voice stress) test but
not those made in a separate, otherwise voluntary interview (see
¶¶ 43-45).
Justice Bradley, joined by Chief Justice Abrahamson, dissented
and concluded that the
interview here was not discrete from the voice stress test. Accordingly,
Davis's later
statements should have been suppressed.
Plain Error Doctrine - Improperly Admitted Evidence and Improper
Closing Argument
by Prosecutor
State v.
Jorgensen, 2008 WI 60 (filed 13 June 2008)
The defendant was convicted by a jury of bail jumping,
fifth-offense operating while
intoxicated, fifth-offense operating with a prohibited alcohol
concentration, and operating a
motor vehicle after revocation of his operating privilege. On this
appeal he advanced several
arguments attacking his convictions. The supreme court, in a majority
decision authored by
Justice Ziegler, concluded that the plain error doctrine warranted
reversal of the convictions.
The plain error doctrine allows appellate courts to review
errors that otherwise would
be considered waived by a party's failure to object. Plain error is
error so fundamental that
a new trial or other relief must be granted even though the action was
not objected to at
the time the error occurred (see ¶ 21).
"If the defendant shows that the unobjected to error
is fundamental, obvious, and substantial, the burden then shifts to the
State to show the
error was harmless. To determine whether an error is
harmless, this court inquires whether the
State can prove `beyond a reasonable doubt that a rational jury would
have found the defendant
guilty absent the error[].' This court has identified several factors to
assist in determining
whether an error is harmless: (1) the frequency of the error; (2) the
importance of the
erroneously admitted evidence; (3) the presence or absence of evidence
corroborating or contradicting
the erroneously admitted evidence; (4) whether the erroneously admitted
evidence duplicates
untainted evidence; (5) the nature of the defense; (6) the nature of the
State's case; and
(7) the overall strength of the State's case. If the State fails to meet
its burden of proving
that the errors were harmless, then the court may conclude that the
errors constitute plain error" (¶ 23) (citations omitted).
In this case the judge and the prosecutor made several errors
during trial, and
defense counsel did not object. For example, the following errors
occurred as a result of the
court reading to the jury a transcript from an earlier court hearing in
an unrelated case: 1)
The jury heard about other acts such as prior convictions and pending
charges for operating
while intoxicated. 2) The jury heard about the fact that a preliminary
breath test was
conducted during that earlier court proceeding because of concerns about
the defendant's state of
sobriety at the hearing and the results of that test. 3) Inadmissible
hearsay was admitted. 4)
The jury heard about information that was not subject to confrontation,
such as the judge's
remarks and the prosecutor's commentary regarding the preliminary breath
test, their personal
observations of the defendant at the earlier court hearing, and their
conclusions about his guilt.
5) The prosecutor asserted personal knowledge of the facts. 6) The jury
heard information
regarding the judge's participation, including his perceptions and
conclusions, at the prior
proceeding (see ¶ 28). Errors that were not objected to also
occurred during the prosecutor's
closing argument, including the prosecutor's reference to the defendant
as a "chronic alcoholic" (¶ 30).
The supreme court concluded that the defendant "was denied
his right to confrontation
and due process because of the transcript being read by the trial judge,
who also presided
over [the earlier court proceeding described above], and the
prosecutor's inappropriate
statement during closing argument" (¶ 33). It held that
"the unobjected to errors of the judge and
the prosecutor in this case are fundamental, obvious, and
substantial" (¶ 54). Further, by
applying the harmless-error factors catalogued above, the court
concluded that "the errors here were
not harmless and
the State has not met its burden of proof in
that regard. Under the facts
presented, we simply cannot say that it is clear beyond a reasonable
doubt that a rational
jury would have found [the defendant] guilty absent the errors. The
errors were so
fundamental, obvious and substantial that we cannot discern whether
absent these errors, the State
would still have successfully convicted [the defendant]. These errors
likely affected the
jury's verdict" (¶ 52). Accordingly, the court reversed the
convictions and remanded the case for
a new trial.
Chief Justice Abrahamson filed a concurring opinion that was
joined in by Justices
Bradley and Butler.
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Evidence
Recorded Statements - Oral Communications
State v. Duchow,
2008 WI 57 (filed 10 June 2008)
Duchow, a school bus driver, was charged with threatening to
harm a disabled child who
was on his bus. The verbal threats were recorded on a machine placed in
the child's backpack by
his parents, who became concerned when the boy's conduct changed and he
became fearful of
riding the bus. Duchow moved to suppress the recorded statements on the
ground that the
recording violated the state's electronic surveillance laws. The circuit
court denied the motion to
suppress but the court of appeals reversed.
A unanimous supreme court, in an opinion written by Justice
Roggensack, reversed the
court of appeals (thereby affirming that the recording of the statements
comported with the
electronic surveillance laws). The prime issue was whether Duchow's
statements constituted "oral
communications" within the meaning of Wis. Stat. section
968.27(12), which is governed by a
reasonable expectation standard. The state and the defense disagreed as
to whether the
standard points to an expectation of privacy generally or an expectation
regarding the likelihood
of interception.
The supreme court followed the "overwhelming abundance of
federal case law that
interprets `oral communication' to incorporate a reasonable expectation
of privacy," not of
interception (¶ 19). Duchow undeniably held a subjective
expectation of privacy in the statements he
made, but the court held that the expectation was objectively
unreasonable under the
circumstances (that is, society would not accept it). "The factors
we have selected are neither an
exclusive, nor a mandatory, list. The relevant factors will vary,
depending on the facts each case
presents. Here, we conclude that the place or location [the school bus]
where the statements
were made and the potential for the statements to be reported are the
most significant factors"
(¶ 24). The opinion elaborated on the court's reasoning with
respect to these two factors.
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Insurance
Comprehensive General Liability Policy -Advertising Injury
Acuity v.
Bagadia, 2008 WI 62 (filed 18 June 2008)
Acuity issued to a software business, UNIK, a comprehensive
general liability (CGL)
policy that covered "advertising injuries." UNIK did business
in Wisconsin. Symantec sued UNIK in
an Oregon federal court, alleging various copyright and trademark
infringements. Acuity
contended that it had no duty to defend against or to cover the claims.
The federal court found
against UNIK and assessed damages of nearly $1 million. Acuity brought
this case to contest
coverage. The circuit court ruled that Acuity's policy covered the
damages, and the court of
appeals affirmed.
The supreme court, in an opinion written by Justice Roggensack,
affirmed. In deciding
that the CGL policy covered the advertising injury found by the federal
court, the Wisconsin
Supreme Court applied the three-step test set forth in
Fireman's Fund Ins. Co. v. Bradley Corp.,
2003 WI 33, 261 Wis. 2d 4, 660 N.W.2d 666: "(1) Does UNIK's conduct
fit within an offense the
policy enumerates? (2) Did UNIK engage in advertising activity? (3) Is
there a causal connection
between UNIK's advertising activity and the
damages?" (¶ 16). The court applied each
question separately to both the copyright infringement and the trademark
infringement. As to the
first question, Acuity conceded that copyright infringement was an
enumerated offense under the
CGL but argued that trademark violations were not. The court held that
based on case law "and
the evolution of the standard CGL policy form, we conclude that the
`infringement of title'
provision in Acuity's CGL policy encompasses claims of trademark
infringement" (¶ 29).
The court also held that the answer to the second question, for
both the copyright and
the trademark infringements, was yes. The court observed that the
ambiguity of the term
"advertising" compelled a liberal construction in favor of
affording coverage
(see ¶ 42). Finally, in addressing the third step,
causation, the court rebuffed
Acuity's argument that the court should apply something other than a
"materially contribute" standard (¶ 53).
Top of Page
Municipal Law
Zoning - Substantive Due Process - Challenge to Ordinance that
Does Not Provide
for Any Uses as of Right
Town of Rhine v.
Bizzell, 2008 WI 76 (filed 1 July 2008)
The Manitowoc Area Off Highway Vehicle Club purchased 77 acres
of land in an area of
the town of Rhine. The area is zoned as B-2 Commercial Manufacturing and
Processing. Within
this classification there are no permitted uses of the property as of
right, although the
relevant ordinances do identify a number of conditional uses to which
the property may be put. In
the parlance of zoning laws a "permitted use" is "as of
right," whereas "a conditional use does
not provide that certainty with respect to land use. Conditional uses
are for those particular
uses that a community recognizes as desirable or necessary but which the
community will
sanction only in a controlled manner" (¶ 20).
The club pursued a facial attack on the zoning ordinance,
claiming that it operates as
a denial of substantive due process. The U.S. Supreme Court has
recognized a landowner's right
to substantive due process in zoning cases and has held that "a
zoning ordinance is
unconstitutional when its provisions are clearly arbitrary and
unreasonable having no substantial
relation to the public health, safety, morals or general welfare"
(¶ 29) (citations and
internal quotes omitted). The circuit court concluded that "a
zoning ordinance which bars all uses
within a district is unreasonable" (¶ 12). It further stated
that "a zoning ordinance which
permits no uses within a district is confiscatory in nature and
oppressive"
(id.). Accordingly, the circuit court held that the zoning
ordinance was unconstitutional. The town appealed, and
the court of appeals certified the case to the supreme court, which
granted certification.
In a majority opinion authored by Justice Ziegler, the supreme
court concluded that
the zoning ordinance under scrutiny "is unconstitutional on its
face because it is arbitrary
and unreasonable in that it precludes any use as of right in the B-2
District and such
limitation bears no substantial relation to the public health, safety,
morals or general welfare" (¶
34). Said the court, "Certainly, municipalities may regulate where
and under what
circumstances certain less desirable uses, such as salvage yards and
stockyards, may be developed.
However, here no justification exists for precluding all uses in the B-2
District and only providing
the landowner with the possibility of obtaining a conditional use
permit. Ordinances can be
drafted so the acceptable uses as of right do not conflict with the
conditional uses.
Municipalities have the power to zone property and restrict where
particular undesirable uses may be
developed within the municipality. However, zoning that restricts the
land such that the landowner has
no permitted use as of right must bear a substantial relation to the
health, safety, morals
or general welfare of the public in order to withstand constitutional
scrutiny. In this case,
the restricted use of the B-2 District land does not bear a substantial
relation to the
public health, safety, morals or general welfare" (¶ 38).
Expanding on its holding, the majority continued: "To be
clear, after today,
municipalities still have ample authority to regulate land use - and
they should. Such regulation is an
appropriate legislative function; it can serve to protect the health,
safety and welfare of
the public, and it encourages well reasoned growth. The issuance of
conditional use permits also
is an appropriate function for municipalities. Municipalities certainly
have broad authority
to restrict land use, but the district at issue today provides for no
permitted use as of
right, and the only use is garnered through the possibility of obtaining
a conditional use permit.
No reasonable justification exists for such excessive government control
and restriction -
especially when that government control is set against land use rights,
and the control bears
no substantial relation to the public health, safety, morals or general
welfare" (¶ 62).
Chief Justice Abrahamson filed a concurring opinion.
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Wisconsin
Lawyer