Supreme Court Digest
This column summarizes all decisions of the
Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Business Law
Wisconsin's Business Closing and Mass Layoff Law - Definition
of "Business Closing"
State v. T.J. International
Inc., 2001 WI 76 (filed 28 June 2001)
Defendant Norco Windows Inc. sold its window manufacturing plant in
Hawkins, Wis., to defendant Jeld-Wen Inc. The plant continuously
operated without interruption during the transfer of ownership, and
Jeld-Wen hired all but 47 of the 396 Norco employees who applied for
jobs with the new ownership.
The employees' collective bargaining representative filed a complaint
with the Department of Workforce Development, alleging a violation of
Wisconsin's Business Closing and Mass Layoff Law. See Wis. Stat. §
109.07 (1995-96). This statute requires employers to give 60-days'
notice to their employees and certain government officials of any
"business closing," which is defined as a "permanent or temporary
shutdown of an employment site."
The department concluded that the sale in this case constituted a
"business closing" under the statute, and ordered both the seller and
the buyer to pay penalties for failure to give notice. The circuit court
agreed, but the court of appeals reversed.
In a unanimous decision authored by Justice Sykes, the supreme court
affirmed the court of appeals. It concluded that the definition of
"business closing" in section 109.07(1)(b) does not include the sale of
business assets where there is no actual operational shutdown -
permanent or temporary - of the employment site. "Where, as here, the
transfer of ownership continues rather than interrupts or ceases the
operation of the employment site, there is no 'business closing' under
the statute, and no 60-day notice of the sale is required" (¶
4).
Civil Procedure
Appeals - Remand - Substitution
Jensen v. Wisconsin Patients
Compensation Fund, 2001 WI 66 (filed 19 June 2001)
This was a motion to reconsider part of an earlier decision in which
the court held that an attorney's pro hac vice status could not be
withdrawn without notice and an opportunity to respond. A
defendant-respondent sought "clarification" of the court's order that on
remand the plaintiffs-appellants had no right to substitute under Wis.
Stat. section 801.58(7). In a terse, per curiam opinion, the supreme
court stated that the law relating to substitutions on remand is
controlled by State ex rel. J.H. Findorff v. Circuit Court for Milwaukee
County, 2000 WI 30, which the circuit court is to apply. Dissenting,
Chief Justice Abrahamson agreed "with the State Bar and the Litigation
Section that counsel should be given an opportunity to be heard on the
issue of substitution and that the appellate court rather than the
circuit court should apply Findorff" (¶ 6).
Criminal Law
Theft of Firearms - Multiplicity
State v. Trawitzki,
2001 WI
77 (filed 29 June 2001)
During the course of a residential burglary the defendant and his
co-actors took 10 firearms from the home. The next day the defendant was
involved in concealing five of those stolen firearms near a bridge.
Among the charges lodged against the defendant were 10 counts of theft
of a firearm and five counts of concealing the stolen firearms.
A jury found the defendant guilty on all charges. His post-conviction
motion challenging the structure of charges as multiplicitous was denied
by the circuit court. The trial court also denied a post-conviction
challenge to the effectiveness of defense counsel relating to counsel's
failure to impeach three prosecution witnesses with the existence and
number of their prior criminal convictions. The court of appeals
affirmed.
In a majority decision authored by Justice Crooks, the supreme court
affirmed the court of appeals. The court first considered whether the 10
theft of a firearm charges and the five concealing a stolen firearm
charges were multi-plicitous. These charges were all brought under the
general theft statute (Wis. Stat. section 943.20(1)(a)) and that part of
the theft statute which provides a special penalty when the property
stolen is a firearm (section 943.20(3)(d)5).
The majority rejected the defendant's claim of multiplicity. To
determine whether charges are multiplicitous, a court must determine
whether the charged offenses are identical in law and in fact. If they
are identical in law and in fact, they are multiplicitous and in
violation of the protection against double jeopardy. If the charged
offenses are not identical in law and in fact, a court must further
determine whether the Legislature intended multiple prosecutions for the
charged offenses.
In this case, though the charges are identical in law, the majority
concluded that they were not identical in fact, because each theft
charge and each concealment charge required proof of an additional fact
that the other charges did not, namely, the identity of the individual
firearm involved in each count.
Because the charges against the defendant were not identical in fact,
the court presumed that the Legislature intended separate charges for
the theft and for the concealment of each firearm. The defendant could
rebut this presumption only by a clear indication of legislative intent
to the contrary which, in this case, he was unable to do.
Finally, the court held that the defendant's trial counsel was not
ineffective for failing to impeach the state's witnesses with their
criminal records, because the defendant did not establish that this
failure was prejudicial to his defense. Said the court, confidence in
the outcome of the trial was not undermined by defense counsel's failure
to impeach. See 46.
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson and Justice Bablitch.
Criminal Procedure
Costs Taxable to the Defendant - Expense of Producing the
Defendant from Prison for Circuit Court Appearances
State v. Dismuke,
2001 WI 75
(filed 28 June 2001)
While the defendant was serving a sentence in prison, he was
repeatedly transported to Milwaukee County on orders to produce for
various court appearances on two new charges. He eventually was
convicted and the judgment of conviction in the new case set costs at
$957.20. Most of this amount was attributable to sheriff's department
costs for executing the orders to produce the defendant from prison. The
court of appeals affirmed. The supreme court, in a unanimous decision
authored by Justice Sykes, reversed.
Wis. Stat. section 973.06 provides that costs taxable against the
defendant include "fees of officers allowed by law." Construing the term
"fees" in a related subsection of this statute, the court had previously
held that the term includes only those sums "ordinarily charged to and
payable by another," not internal operating expenses of a governmental
unit. See State v. Ferguson,
202 Wis. 2d 233, 549 N.W.2d 718 (1996).
The record in this case contained conflicting information and no
evidence about whether the expenses associated with executing orders to
produce are generally "charged to and payable by another," or are merely
internal operating expenses of the Milwaukee County Sheriff's
Department. The record was similarly underdeveloped and unclear on the
specific amounts assessed against the defendant in this case.
Accordingly, the court held only that its earlier decision in
Ferguson applies to the determination of taxable "fees of officers
allowed by law" under section 973.06(1)(a). This requires a
determination of whether the expenses associated with the execution of
orders to produce are ordinarily charged to and payable by another or
are merely internal operating expenses of a governmental unit. If the
former, they are taxable, provided they are "allowed by law," which
requires a further determination of whether the actual assessments in
this case were consistent with Wis. Stat. section 814.70, which deals
with sheriff's fees for service of process. See 26. The case was
remanded to the circuit court for further proceedings consistent with
this decision.
Collateral Attack on Prior Convictions - Denial of Right to
Counsel
State v. Peters,
2001 WI 74
(filed 28 June 2001)
The defendant was charged with a fifth offense of operating after
revocation of license (OAR). In order to avoid the progressively higher
penalties that flow from repeat OAR offenses, he moved to invalidate his
second OAR conviction, alleging that the no-contest plea upon which it
was based was entered without counsel by closed-circuit television from
the county jail, in violation of his statutory and constitutional
rights.
The circuit court entertained the collateral challenge and held that
any error related to the television plea was harmless. The court of
appeals affirmed, concluding that while the defendant's statutory
procedural rights had been violated, no constitutional violation
requiring reversal had occurred. The supreme court, in a unanimous
decision authored by Justice Sykes, reversed the court of appeals.
The case concerns the extent to which a defendant may collaterally
attack a prior conviction in a subsequent criminal case where the prior
conviction is used to enhance the sentence for the subsequent crime. The
general rule is that a defendant may not collaterally attack the
validity of a prior conviction during an enhanced sentence proceeding
predicated on the prior conviction unless the offender alleges a
violation of his constitutional right to counsel. See State v.
Hahn, 2000 WI 118 (modified by State v. Hahn, 2001 WI 6).
Because the current OAR prosecution is predicated in part on a prior OAR
conviction that was obtained when the defendant was not represented by
counsel, the court concluded that this case falls within the
right-to-counsel exception to the general rule against collateral
attacks on prior convictions used to enhance subsequent penalties. The
supreme court reversed, and remanded the case to the circuit court for a
consideration of whether the record in the second offense OAR case
reflects a knowing and voluntary waiver of counsel.
The court did not address the defendant's challenge to the
constitutionality of closed-circuit television guilty/no-contest
pleas.
Employee Benefits
Wisconsin Retirement System - Constitutionality of 1999
Wisconsin Act 11 Changes to Pension System
Wisconsin Professional Police
Association Inc. v. Lightbourn, 2001 WI 59 (filed 12 June
2001)
In this original action the petitioners challenged the
constitutionality of portions of 1999 Wisconsin Act 11 as amended by Act
12 ("Act 11"). Together, these two acts made numerous changes in the
Wisconsin retirement system impacting the pension interests of more than
460,000 participants in the system, as well as the fiscal
responsibilities of the State of Wisconsin and all government employers
within this state whose past or present employees are participants in
the system.
In a lengthy majority decision authored by Justice Prosser, the
supreme court concluded that Act 11 is constitutional. It was approved
by the requisite number of votes in the Legislature. The Act does not
take petitioners' property without just compensation, nor does it impair
the obligations of their contract with the State of Wisconsin. Further,
the Act does not violate the fundamental principles of Wis. Stat.
chapter 40 or any right preserved in section 40.19(1), nor does it
violate trust principles. Accordingly, the court denied the declaratory
relief sought by the petitioners and lifted an injunction previously
issued so that Act 11 may be enforced.
Justice Bablitch filed an opinion concurring in part and dissenting
in part.
Chief Justice Abrahamson filed a dissent that was joined by Justice
Bradley.
Milwaukee County Employees Vested in County Pension System -
Discharged Employees - No Denial of Pension Without Due Process
Hearing
Milwaukee District Council 48
v.
Milwaukee County, 2001 WI 65 (filed 15 June 2001)
The Milwaukee County Employees' Retirement System is the only
county-operated retirement system in Wisconsin. Under county ordinances
a Milwaukee County employee has a property interest in a deferred vested
pension after 10 years of creditable service, unless the employee is
terminated for "fault or delinquency." This contingency - termination
for "fault or delinquency" - nullifies the employee's pension
eligibility, irrespective of the length of the employee's service.
As described by the court, the principal issue in this case relates
to procedure: May Milwaukee County deny a pension to an employee who has
10 years of creditable service after terminating the employee for
"cause" (following a due process hearing), without also holding a due
process hearing to determine whether the employee was terminated for
"fault or delinquency"?
The enabling state legislation for the Milwaukee County Retirement
System and the controlling county ordinance draw a distinction between
"cause" and "fault or delinquency." The county ordinance identifies some
46 grounds of "cause" to discharge a county employee, and there was no
dispute that county employees who have passed their probationary period
have a protectable property interest in their jobs because state law
precludes their discharge without "cause." But the ordinance does not
clarify whether all 46 grounds, plus others that might serve as the
basis for discharge, constitute the "fault or delinquency" that would
need to be found as a statutory prerequisite for denial of a vested
pension.
In a unanimous decision authored by Justice Prosser, the supreme
court concluded that Milwaukee County may not deny a pension to an
employee who has satisfied the minimum requirements of credible service
for a deferred vested pension without first affording the employee the
procedural due process of a hearing to determine whether the employee is
being or was terminated for "fault or delinquency." The hearing must be
preceded by fair notice and the county must establish standards for
"fault or delinquency." See 62.
The court indicated that it was not holding or implying that the
county must hold a completely separate due process hearing for the
denial of a pension. The requirements of procedural due process are
flexible enough that the county may offer a hearing that considers both
"cause" for discharge and "fault or delinquency." See 63.
Employment Law
Discharge of Employee-at-will - Public Policy
Exception
Batteries Plus LLC v.
Mohr,
2001 WI 80 (filed 29 June 200l)
Batteries Plus, a retail seller of batteries, sued the defendant, one
of its former at-will employees, for repayment of past wages. It claimed
that it had accidentally overpaid the defendant approximately $11,500
for mileage expenses when the defendant was a commercial sales
specialist for the company. The defendant counterclaimed, alleging that
Batteries Plus wrongfully discharged him when he refused to agree to
reimburse the company, through deductions from his future wages, for the
alleged overpayment.
The jury returned a verdict in favor of the defendant, awarding him
damages for wrongful discharge and underpayment of wages. In allowing
the defendant's counterclaim, the circuit court ruled that Wis. Stat.
section 103.455 (1995-96) provided a well-established and important
public policy basis to preclude Batteries Plus from lawfully discharging
the defendant. The court of appeals affirmed. In a majority decision
authored by Justice Prosser, the supreme court reversed.
The jury found that the defendant was an employee-at-will. In
Wisconsin, the employment-at-will doctrine is an established general
tenet of workplace relations. The doctrine permits an employer to
discharge an employee for good cause, for no cause, or even for cause
morally wrong, without being thereby guilty of legal wrong. The supreme
court has recognized a narrow "public policy exception" to the
employment-at-will doctrine, allowing an employee a cause of action "for
wrongful discharge when the discharge is contrary to a fundamental and
well-defined public policy as evidenced by existing law." See
Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 572-73,
335 N.W.2d 834 (1983).
In this case the defendant relied upon section 103.455 as the basis
for his argument that the public policy exception should be applied to
him. This statute provides that "no employer shall make any deduction
from the wages due or earned by any employee ... for defective or faulty
workmanship, lost or stolen property, or damage to property ... ." The
present case did not involve the type of work-related loss described in
the statute; rather, it was a disagreement about an alleged overpayment
of expenses. The majority held that neither the letter nor the spirit of
section 103.455 covers the situation in which an employer claims that it
overpaid its employee by mistake and the employee gives the employer no
choice but to go to court to recover the money. Accordingly, the court
concluded that the defendant could not maintain an action for wrongful
discharge under these circumstances.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justices Bablitch and Bradley.
Motor Vehicle Law
Habitual Traffic Offenders - Effect of Rescission of HTO
Status - Wis. Stat. Section 351.09
State v. Hanson,
2001 WI 70
(filed 26 June 2001)
On four occasions in 1996, the defendant was convicted of operating a
motor vehicle after his license had been revoked or suspended (OAR/OAS),
contrary to Wis. Stat. section 343.44(1) (1995-96). [The OAR/OAS
convictions referred to in this case occurred prior to the separation of
OAR and OAS into distinct violations, which occurred as a result of
legislation that took effect on Aug. 1, 2000.] As a consequence of the
four prior OAR/OAS convictions, the defendant was classified as a
habitual traffic offender (HTO) in December 1996. His HTO classification
resulted in the revocation of his driving privileges for five years.
While still subject to the HTO revocation, and perhaps to other
suspensions and revocations, the defendant was caught illegally driving
a fifth time in October 1998. He was charged with his fifth violation of
the OAR/OAS law and the complaint alleged that his OAR/OAS sentence was
subject to enhancement due to his HTO classification. This enhancement
subjected him to an additional $5,000 fine and a possible 180 additional
days of imprisonment.
Following issuance of the complaint, the defendant pursued a
rescission of his HTO status through the Department of Transportation
(DOT). As part of a 1997 legislative overhaul of the offense of OAR/OAS,
which included the removal of OAR/OAS as a predicate offense that may be
used to classify a driver as an HTO, DOT was authorized to redetermine a
driver's HTO status without consideration of OAR/OAS convictions. In
February 1999, DOT rescinded the defendant's HTO status, which was based
on his prior OAR/OAS convictions, pursuant to Wis. Stat. section
351.09.
Subsequent to the rescission of his HTO status, the defendant entered
a plea of no contest to the charge of OAR (fifth offense) as an HTO, as
alleged in the criminal complaint. The circuit court accepted his plea
of no contest, imposed a fine of $300, and sentenced the defendant to 20
days in jail.
Thereafter the defendant pursued post-conviction relief in which he
challenged the imposition of a term of imprisonment for his conviction.
He requested that the circuit court substitute the criminal sentence
with a civil forfeiture, his argument being premised on the rescission
of his HTO status. The circuit court denied the motion. The court of
appeals affirmed, concluding that the defendant had waived the right to
challenge his conviction and sentence by the entry of his no contest
plea.
In a majority decision authored by Justice Bradley, the supreme court
reversed the court of appeals. It concluded that a criminal sentence
based solely upon the defendant's HTO status, which was rescinded under
section 351.09 prior to his conviction, is a sentence in excess of that
authorized by law and is invalid under section 973.13. However, given
the state of the record, the court could not determine whether the
defendant's driving record supported a criminal sentence even without
consideration of his HTO status and, accordingly, remanded the case to
the circuit court for such determination.
In reaching its decision in this case, the majority rejected the
state's claim that the defendant waived the challenge to the sentence by
entering a plea of no contest. Wis. Stat. section 973.13 provides that
when a court imposes a sentence greater than that authorized by law, any
excess sentence is void. In this case, if the defendant received a
criminal penalty based solely on his HTO status, which was rescinded by
DOT prior to his conviction, such a sentence is in excess of that
authorized by law. To apply the guilty/no contest plea waiver rule would
ignore the dictate of section 973.13. Accordingly, the majority reached
the merits of the defendant's appeal.
Justice Crooks filed a dissenting opinion that was joined by Justices
Wilcox and Prosser.
Real Property
Regulatory Takings - Categorical and Ad Hoc
Analyses
R.W. Docks & Slips v.
State, 2001 WI 73 (filed 28 June 2001)
R.W. Docks, a general partnership in the business of developing
marinas, is the riparian owner of 1,100 feet of frontage along Lake
Superior in Bayfield, Wis. In 1969 it began building a marina on this
land. The marina was built in stages, eventually containing 201 boat
slips, related recreational facilities, and various other
improvements.
Several years later Docks applied to the Department of Natural
Resources for a permit to dredge 20,000 cubic yards of material from the
lakebed, a necessary prerequisite to the completion of the remaining 71
boat slips in the project. Most of this request was denied and, given
the denial, the final 71 boat slips could not be built. The permit was
denied primarily for environmental reasons, because a small emergent
weed bed had developed near the shore within the marina.
After exhausting administrative appeals and judicial review of the
DNR's action, Docks sued the DNR in circuit court alleging an
unconstitutional taking of its property without just compensation. The
circuit court granted DNR's motion for summary judgment. The court of
appeals affirmed.
In a unanimous decision authored by Justice Sykes, the supreme court
affirmed. The issue before the court was whether the DNR's denial of the
final dredging permit constituted a regulatory taking of Docks' property
without just compensation.
Both the Fifth Amendment to the U.S. Constitution and the Wisconsin
Constitution provide that private property shall not be taken without
just compensation. A "taking" need not arise from an actual physical
occupation of land by the government. A governmental regulation of
property, if the regulation goes too far, can also be recognized as a
taking.
In determining whether a regulatory restriction "goes too far,"
courts generally prefer to engage in ad hoc factual inquiries. However,
at least two discreet categories of regulatory action have been
recognized as compensable without case-specific inquiry into the public
interest advanced in support of the restraint. The first includes
regulatory actions that bring about some form of physical "invasion" of
private property. The second includes regulatory actions that deny "all
economically beneficial or productive use of land."
In this case the DNR's denial of the dredge permit did not bring
about a physical invasion of private property. Nor did it deny Docks all
economically beneficial or economic use of its property, or
substantially all practical use of its property, inasmuch as Docks
retained the economic benefit and use of the 201 boat slips and related
recreational facilities at the marina.
This conclusion left the court with performing the traditional ad hoc
factual takings inquiry, which involves an analysis of the nature and
character of the governmental action, the severity of the economic
impact of the regulation on the property owner, and the degree to which
the regulation has interfered with the property owner's distinct
investment-backed expectations in the property. In this case, because
the DNR's action affected only riparian rights, which are subordinate to
the public trust doctrine (under which the state holds title to the beds
of lakes, ponds, and rivers in trust for the public), and affected only
a small portion of the marina development as a whole, the court
concluded that denial of the permit cannot be said to have resulted in
the sort of severe economic impact or interference with distinct
investment-backed expectations as to constitute a regulatory taking
under traditional ad hoc takings analysis.
Seized Property
Return of Seized Property - Wis. Stat. Section 968.20 - In
Rem Proceeding
City of Milwaukee v.
Glass,
2001 WI 61 (filed 13 June 2001)
Wis. Stat. section 968.20 governs the return of property seized by
the authorities either pursuant to a search warrant or seized without a
search warrant. In this case the plaintiff filed a petition for the
return of property seized by the Milwaukee Police Department from his
garage. The city could not return the seized property because it no
longer had possession of it. After a series of hearings, the circuit
court awarded the plaintiff approximately $1,600, which the plaintiff
had established as the fair market value of the property seized.
The court of appeals reversed the circuit court order, concluding
that section 968.20 contemplates only a return of seized property and
does not authorize a circuit court to award money damages for failure to
return the seized property.
In a unanimous decision authored by Chief Justice Abrahamson, the
supreme court affirmed the court of appeals. Classifying a section
968.20 proceeding as "in rem" in nature, the court concluded that the
statute does not authorize a circuit court to award money damages
against the city when the city cannot return the seized property because
it no longer has possession of that property. A judgment in an in rem
proceeding is valid only against the specific property and not against a
defendant or a defendant's other assets. The supreme court also
concluded that the circuit court did not gain personal jurisdiction over
the city by virtue of its appearances in this matter. No summons was
ever served on the city and the city repeatedly contested the circuit
court's authority to award money damages at the various hearings in this
case.
Seized Property - Wis. Stat. Section 968.20(1m)(b) - Return
of Dangerous Weapon - Commission of a Crime Involving Use of the
Dangerous Weapon
State v. Perez, 2001
WI 79
(filed 29 June 2001)
The defendant was convicted of carrying a concealed and dangerous
weapon in his van. He thereafter filed a motion pursuant to Wis. Stat.
section 968.20 seeking the return of all items seized at the time of his
arrest, including several firearms. He claimed that he was in Wisconsin
on business at the time of the incident and was licensed to carry
concealed weapons in his home state of Florida for the purpose of
hunting. The circuit court granted the motion and the court of appeals
affirmed.
The supreme court, in a majority decision authored by Justice
Prosser, reversed the court of appeals. The issue before the court was
whether a person who is convicted of carrying a concealed and dangerous
weapon under Wis. Stat. section 941.23 has "committed a crime involving
the use of the dangerous weapon," as that phrase is used in section
968.20(1m)(b), so that a dangerous weapon seized from the person may not
be returned.
The court concluded that a person convicted of going armed with a
concealed and dangerous weapon contrary to section 941.23 has "committed
a crime involving the use of the dangerous weapon" and that the return
of the dangerous weapon or weapons seized from the person is prohibited
by section 968.20.
Justice Wilcox filed a concurring opinion that was joined by Justice
Crooks.
Sexually Violent
Persons
Appellate Rights - Right to Counsel - Ineffective
Assistance
State of Wisconsin ex rel.
Seibert v.
Macht, 2001 WI 67 (filed 19 June 2001)
Seibert was found to be a sexually violent person under Wis. Stat.
chapter 980 and petitioned for supervised release. After the trial court
denied the petition, the court of appeals dismissed his appeal as
untimely and later rejected his petition for a writ of habeas corpus
which contended that this right to effective assistance of counsel had
been violated. The supreme court accepted Seibert's pro se petition for
review and appointed counsel.
The supreme court, in an opinion written by Justice Wilcox, reversed
the court of appeals. Addressing two issues, the court "adopt[ed] the
prophylactic framework of Anders and its progeny for Chapter 980 cases"
(¶ 20). First, due process and equal protection guarantee that "an
indigent sexually violent person is constitutionally entitled to
assistance of counsel in bringing a first appeal as of right from a
denial of his or her request for supervised release" (¶ 1). Second,
based on the "unique facts" presented in this case, the court held that
ineffective assistance of counsel occurred when the notice of appeal was
filed one day late in the trial court. Moreover, a string of supreme
court cases provide that "the court of appeals cannot conduct an
independent review for error where the individual lacks requested
representation, whether that representation encompasses briefing on the
merits or an Anders brief" (¶ 2). The individual need not
demonstrate prejudice at an evidentiary hearing (¶ 19).
Appeals - Voluntary Dismissal
State v. Schulpius,
2001 WI
69 (filed 22 June 2001)
Schulpius was found to be a sexually violent person. He challenged
his chapter 980 commitment on numerous grounds after authorities were
unable to accommodate the court's order for supervised release. After a
hearing, the circuit court ordered Schulpius released from confinement
at the Wisconsin Resource Center. The state petitioned for leave to
appeal a nonfinal order, which the court of appeals granted, and
Schulpius then petitioned the supreme court for bypass. While the
appellate matters were pending, the circuit court granted the state's
motion to reconsider, ruled that Schulpius was no longer suitable for
supervised release, and ordered him committed to institutional care. The
state then filed a notice of voluntary dismissal in the supreme court.
Complicating matters further, while this appeal was pending, the U.S.
Supreme Court issued its decision in Seling v. Young, 531 U.S. 250
(2001). The Wisconsin Supreme Court ordered supplemental briefs.
An equally divided Wisconsin Supreme Court split over whether to
accept the state's notice of voluntary dismissal (Justice Prosser did
not participate). The court vacated its order granting bypass and
remanded the case to the court of appeals in order to promote the
"efficient resolution of this appeal."
Torts
Jury Trial - Bifurcation of Issues - Recreational Immunity -
Social Guest
Waters v. Pertzborn,
2001 WI
62 (filed 14 June 2001)
The plaintiff, age 10, was severely injured while sledding at the
home of the defendant neighbors. The circuit court rejected defendant's
summary judgment motion, because an issue of fact existed as to whether
the plaintiff was a "social guest" and therefore within an exception to
recreational use immunity. The court also ordered separate trials before
different juries on the issues of liability and damages. The plaintiffs
were granted leave to file an interlocutory appeal and the supreme court
accepted this case on certification.
The supreme court, in an opinion written by Justice Bradley, reversed
in part and affirmed in part. First, and most significant, the court
held that Wisconsin law does not permit separate trials on the issues of
liability and damages before different juries. The legislative history
of Wis. Stat. section 805.05(2) conclusively revealed that bifurcating
such issues in separate trials before different juries was closely
considered and deliberately rejected (¶ 20-24). Furthermore, such
bifurcation is also precluded by Wis. Stat. section 805.09(2), which
requires that the same five-sixths of a jury agree to all questions
necessary to sustain a claim in order for a jury's verdict to be valid.
Put differently, the bifurcation order in this case flatly collided with
the five-sixths' statutory mandate. Finally, neither the case law nor
Wis. Stat. section 906.11 compelled a different conclusion. (The court
distinguished the very different procedural posture of an appellate
court's remand for trial limited to particular issues, which would
necessarily involve different juries addressing parts of the same
claim.)
The supreme court then turned to the cross-appeal filed by
defendants, which argued that recreational use immunity barred the
claim. In sum, the supreme court upheld the lower court's determination
that summary judgment was improper. On this record the social guest
exception arguably trumped the recreational use immunity provided by
Wis. Stat. section 895.52. An 11-year-old girl could be an "occupant" of
the home authorized to "invite" guests onto the property, a purely
factual inference that found support in the evidence. Nor was it
material that the plaintiff was not specifically invited to sled because
section 895.52(6)(d) only requires an invitation for the "occasion."
(Whether the invitation had "expired" presented a question of fact for
trial.) Finally, the defense argued that the social guest exception did
not apply because the plaintiff was injured in the street, not on their
property. The court declined to construe the statute so mechanistically
as to have to calculate "the trajectory of Christopher's downhill
descent in a manner that would ignore the laws of physics" (¶
50).
Recreational Immunity - Adjacent Property - Easements -
Exceptions
Urban v. Grasser,
2001 WI 63 (filed 14
June 2001)
Plaintiff Urban was injured while walking across property owned by
David G. when a dog chased him and he fell from a wall onto a concrete
driveway. Urban kept his boat docked on adjacent property owned by
David's father, Paul G. Paul held an easement for ingress and egress
over David's property pursuant to a written agreement. Moreover, Paul
had granted Urban permission to use David's property in accessing the
boat, which was the only way to get to the boat. Urban sued David and
the circuit court granted David's motion for summary judgment,
dismissing the complaint based on recreational use immunity.
The supreme court, in an opinion written by Justice Bablitch,
affirmed in an opinion that emphasized the fact-specific nature of
recreational immunity cases and expressed frustration over the judicial
system's inability to craft a useful test from the statute's vagaries
(¶ 12-13). Until the Legislature clarifies Wis. Stat. section
895.52, courts are left to launder a list of nebulous factors including
the intrinsic nature of the activity, its purpose, its consequences, and
the user's intent, as well as the nature of the property and the
property owner's intent, if any.
Applying this analysis to the summary judgment record, the court
first determined that David was an "owner" within the statute's meaning
despite Paul's easement. (The "dominant owner" obtains only a right to
use the land, not an "estate" in the property.) Second, Urban was
engaged in recreational activity when he was injured. Urban was walking
across David's property in order to access his boat via the only
available route. Thus, the act of walking was "inextricably connected"
to the boat and hence a recreational activity.
Finally, the court found that no exceptions were applicable to
recreational use immunity. Urban was not David's "social guest" because
Paul permitted his use of the easement, not David. Thus, "permissive
entrants" fall outside the social guest exception. Nor did Urban fall
within the "profit" exception under Wis. Stat. section 895.52(6)(a).
Although Urban bought the boat from Paul for $4,000, nothing indicated
that Paul's permission to use the boat slip affected the purchase
price.
Justice Wilcox concurred that David was entitled to recreational
immunity but rejected the majority's position that courts should
consider the nature of the property and the property owner's subjective
intent, a position he explained in his dissent to Minnesota Fire and
Cas. Ins. Co. v. Paper Recycling of La Crosse, 2001 WI 64 (see
below).
Chief Justice Abrahamson, joined by Justice Bradley, dissented on
grounds that immunity does not extend to owners of servient estates,
such as David. Furthermore, Urban was not engaged in any recreational
activity while on David's property.
Recreational Immunity - Child's Play - Nature of the Property
- Owner's Purpose
Minnesota Fire & Cas.
Ins. Co. v.
Paper Recycling of La Crosse, 2001 WI 64 (filed 14 June
2001)
Three young boys, one age 11, entered the property of a recycling
plant, where they crawled through stacks of baled paper, lit matches,
and played in the labyrinth. The 11-year-old boy died in a resulting
fire. In separate but related actions, two circuit court judges from the
same county reached opposite conclusions about whether the recycler was
entitled to recreational immunity under Wis. Stat. section 895.52(2).
The court of appeals held that the recycler was not entitled to
immunity.
The supreme court, in an opinion written by Justice Crooks, affirmed.
The court first addressed whether the boys were engaged in "recreation"
within the statute's meaning. Every outdoor activity is not an immunized
recreational activity. The statute broadly defines recreation as "any
outdoor activity undertaken for the purpose of exercise, relaxation or
pleasure" and then provides 28 illustrations plus a catch-all that
embraces all "substantially similar" activities. Most important,
Minnesota Fire explicitly held that in determining whether an activity
is "recreation" courts should examine the nature of the property and the
owner's purpose. Here the company leased the property solely to operate
its recycling business, which is a far cry from any of the activities
listed in section 895.52(2). Nor was the children's play dispositive.
Applying an objective "adult" standard, the court held that a
"reasonable adult would not consider crawling around lighting fires to
be a recreational activity" (¶ 31). Nothing about the intrinsic
nature, purpose, and consequence of this activity was substantially
similar to the enumerated forms of recreation, such as exploring caves.
Finally, the court considered the stare decisis effect of its holding on
the doctrine of attractive nuisance; namely, a contrary holding might
give commercial property owners less incentive to monitor their property
and prevent children from trespassing.
Justice Bradley, joined by Chief Justice Abrahamson, concurred and
wrote separately to stress the difficulties courts have encountered in
interpreting section 895.52 and to invite the Legislature to "revisit"
the matter.
Justice Wilcox, joined by Justice Prosser, dissented based on the
majority's construction of the statute, particularly its reliance on the
nature of the property as a "significant factor."
Emotional Distress - Bystanders - Injured Animals - Frivolous
Claims
Rabideau v. City of
Racine,
2001 WI 57 (filed 12 June 2001)
Police shot and killed the plaintiff's dog while she watched. She
brought this tort action against the city. The circuit court granted
summary judgment to the city, dismissed the complaint, and also found
that the claim was frivolous. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Bablitch,
affirmed in part and reversed in part. First, the court found that the
plaintiff could not bring a claim for negligent infliction of emotional
distress because she was not related to the "victim" as spouse,
parent-child, grandparent-grandchild, or sibling. Moreover, public
policy considerations, particularly the lack of any just stopping point,
foreclosed a claim for negligent damage to "property" such as pet
animals. Second, the defense was entitled to summary judgment on her
claim for intentional infliction of emotional distress. The plaintiff
did state a claim, however, for damages for property loss (that is, her
dead dog). The court also found that the record raised a material fact
as to whether the officer was lawfully entitled to shoot plaintiff's
pet. Finally, the supreme court overturned the trial court's finding
that the action was frivolous. The complaint did, after all, encompass a
proper claim for property loss and plaintiff's attorney proffered the
other, albeit unsuccessful, claims in good faith.
Vicarious Liability - Medical Malpractice - Nurses and
Doctors - "Captain of the Ship" Theory
Lewis v. Physicians Ins.
Co., 2001 WI 60 (filed 13 June 2001)
In this medical malpractice action, the plaintiff alleged that the
surgeon was vicariously liable for the failure of two hospital nurses to
account accurately for sponges used during his gallbladder surgery (one
was left in his abdomen). As a county facility, the hospital's statutory
liability was limited to $50,000 for the nurses' negligence, which was
paid to the plaintiff. The parties stipulated that the surgeon was not
negligent. The sole remaining claim was that the surgeon was vicariously
liable for the nurses' negligence. The circuit court concluded that the
surgeon was liable, but the court of appeals reversed.
The supreme court, in an opinion written by Justice Wilcox, affirmed
the court of appeals in a decision that addresses the tensions between
the "basic principle of individual responsibility" and the "severe
exception" to that rule posed by vicarious liability (¶ 11). The
surgeon did not employ either nurse, which eliminated respondeat
superior as a theory of vicarious liability, and there was no claim that
they were "borrowed servants." The court declined to read Fehrman v.
Smirl, 25 Wis. 2d 645 (1964) (Fehrman II) as "imposing vicarious
liability on a doctor whenever the doctor continues to actively care for
and participate in the treatment of the patient" (¶ 13). Nor did
Fehrman II support an "alternative liability" theory or a new species of
tort labeled the "continuing active management" theory. In short,
existing Wisconsin law provided no viable doctrine supporting the
surgeon's vicarious liability.
The supreme court next addressed whether Wisconsin law should adopt
some variant of a "captain of the ship" theory of liability. It declined
to do so. The doctor as "captain of the ship" reflects an inaccurate,
outmoded view of hospitals as mere places where doctors treat and care
for patients instead of their vital role in the billion dollar health
care industry (see 24).
Chief Justice Abrahamson, joined by Justice Bradley, concurred in the
mandate and wrote separately to emphasize the limits of the court's
"broad language," particularly as it related to a surgeon's duty to
supervise and control assisting nurses and personnel.
Psychotherapists - Negligent Treatment - Confidentiality -
Chapter 655 - Statute of Limitations
Johnson v. Rogers Memorial
Hospital
Inc., 2001 WI 68 (filed 19 June 2001)
In 1991 the plaintiffs' daughter, Charlotte, began receiving
psychotherapy at Rogers Memorial Hospital (RMH). She was later admitted
as an inpatient, which plaintiffs agreed to pay for. During treatment,
Charlotte "recalled" having been physically and sexually abused by her
parents and ceased her relationship with them. In 1996 her parents sued
RMH and other providers on a variety of theories for implanting false
memories in their daughter. The circuit court dismissed the complaint
and the court of appeals affirmed.
The supreme court, in an opinion written by Justice Bablitch,
reversed. The central issue in this case, whether the parents of an
adult child can maintain a third-party professional negligence action
against therapists based on allegations of planting false memories, was
decided in the affirmative in Sawyer v. Midelfort, 227 Wis. 2d 124
(1999), while this case was pending. Nonetheless, the court of appeals
found Sawyer distinguishable because the claims in this case imposed a
"significant collateral burden" on the confidentiality of the
therapist-patient relationship.
Justice Bablitch addressed three issues. First, as to the potential
burden of such claims on the confidentiality of the therapist-patient
relationship, the court held that the factual record was insufficiently
developed to permit a public policy analysis. The record did not reveal
whether Charlotte waived the privilege or whether it even applied
because of the plaintiffs' participation in various sessions. Second,
the plaintiffs are permitted to maintain their claim against RMH based
on breach of contract; "chapter 655 is not the exclusive remedy for such
claims" (¶ 20). Finally, the record did not dispositively resolve
whether the statute of limitations barred the action. The case was
remanded to the circuit court.
Zoning
Variances - Use and Area - DNR
State v. Outagamie County
Board of
Adjustment, 2001 WI 78 (filed 29 June 2001)
In 1984 the Warnings built a home on their land. Although they built
according to their permit, the basement was about four feet below the
100-year regional flood elevation and six feet below the flood
protection elevation in violation of state regulations and county zoning
ordinances. In 1994 the Warnings sought permission to build a sun porch.
Eventually, they applied for an "after the fact" variance for their
nonconforming basement from the county board of adjustment. The DNR
opposed the request. The board unanimously granted the variance. The
state sought certiorari review in the circuit court, which affirmed the
board and rejected the DNR's contention that Wis. Admin. Code § NR
116.13(2) prohibited such variances.
The court of appeals reversed, based on its construction of State v.
Kenosha County Board of Adjustment, 218 Wis. 2d 396 (1998), and §
NR 116.13(2). Clearly troubled by the result, the court of appeals noted
the anomaly of using zoning laws designed to protect basements in a way
that would likely authorize the destruction of one that had been
trouble- free since 1984. Kenosha County, according to Justice Sykes'
opinion in this case, had "eliminated the previous distinction between
area and use variances and established a 'no reasonable use of the
property' standard for the issuance of either type of variance, thereby
making all variances almost impossible to obtain" (¶ 4).
The Wisconsin Supreme Court reversed the court of appeals. Space
restrictions permit only a summary of the court's various opinions.
Justice Sykes wrote the lead opinion. Joined by Justices Bablitch and
Prosser, she would overrule Kenosha County because its "radical change
in variance law was unwarranted." Justice Crooks and Justice Wilcox saw
no need to overrule Kenosha County, but concurred in the mandate because
they found no impediment to the Warnings' variance. Four members of the
court joined Justice Sykes in concluding that "because Wis. Admin. Code
§ NR 116.13(2) categorically prohibits variances for any deviation
from basement elevation requirements in floodplains, it inexorably
conflicts with the discretionary authority over variances vested in
local boards of adjustment by state statute, and therefore must give
way" (¶ 5).
Justice Prosser filed a separate concurring opinion that explained
his reasons for joining the lead opinion.
Chief Justice Abrahamson, joined by Justice Bradley, dissented.
Wisconsin Lawyer