Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Administrative Law | Civil
Procedure | Constitutional Law |
| Criminal Procedure | Family Law | Insurance | Juveniles |
| Motor Vehicle Law | Municipal Law |
Torts |
Administrative Law
PSC Determinations - Standards of Review
Barron Electric Coop. v.
PSC of Wisconsin, No. 97-0420
(filed 7 Aug. 1997) (ordered published 30 Sept. 1997)
The PSC ruled that Barron Electric Cooperative did not have the right
to provide electric service to a residential development and ordered
removal of the line. The dispute centered over section 196.495(1m)(b) of
the Wisconsin Statutes. The circuit court concluded that it owed "little
or no deference" to the PSC and reversed based upon its own
interpretation of the statute. The "crucial issue" in this case
concerned the "scope of judicial review of the commission's decision
interpreting and applying the provisions of sec. 196.495, Stats."
The court of appeals, in an opinion written by Judge Eich, reversed.
The court held that the commission's decision was entitled to "great
weight and should be affirmed if it is reasonable, even if another
interpretation ... might be equally reasonable." The court discussed the
case law setting forth the various levels of judicial scrutiny of
administrative determinations. Barron did not dispute the commission's
expertise in applying the statutes nor did it argue that the
commission's decision would somehow retard "uniformity and consistency"
in its application. Rather, Barron contended that because the commission
did not point to a specific past case involving analogous facts, this
case was one of "first impression" and the commission's decision
entitled to no weight. Rejecting this position, the court of appeals
observed that the test is not whether the commission ruled on even a
substantially similar case in the past. "Rather, the cases tell us that
the key in determining what, if any deference courts are to pay to an
administrative agency's interpretation of a statute is the agency's
experience in administering the particular statutory scheme - and that
experience must necessarily derive from consideration of a variety of
factual situations and circumstances." The record revealed that the
commission had "a long-standing history of interpreting the statute" to
"public utility territorial disputes." Turning to the case specifics,
the court found that the commission's determination was reasonable.
Civil Procedure
Answers - Courtesy Agreements - Excusable Neglect
Rutan v. Miller,
No. 97-0547 (filed 26 Aug. 1997)
(ordered published 30 Sept. 1997)
The trial court entered a default judgment against the defendants
after their attorney apparently failed to file a timely answer. Defense
counsel claimed that she filed the answer within the time permitted by a
courtesy agreement between counsel.
The court of appeals, in an opinion written by Judge Myse, reversed
based upon the defense attorney's excusable neglect. "Excusable neglect
is conduct that 'might have been the act of a reasonably prudent person
under the same circumstances.'" Courts are to consider not just the
causes for neglect but also the interests of justice, including the
sometimes contradictory interests of ensuring prompt adjudication and
affording parties their day in court.
Unlike the trial judge, the court of appeals was untroubled by the
failure to reduce the oral courtesy agreement to writing. Defense
counsel had requested and received consent to file an answer 20 days
after the last of three named defendants was served. The problem arose
because of uncertainty over the date on which the third defendant was
served. In finding excusable neglect the court of appeals focused on two
factors: the representations made by a paralegal working for plaintiff's
counsel about the status of service and "the substantial unaccounted-for
delay of nineteen days between service of [the third defendant] and the
filing of notice of service." Once defense counsel became aware that
service had been effected, she promptly filed the answer - a week before
what she thought was the original due date.
Constitutional Law
Education - Milwaukee Parental Choice Program -
Constitutionality
Jackson v.
Benson, No. 97-0270 (filed 22 Aug. 1997)
(ordered published 30 Sept. 1997)
The Milwaukee Parental Choice Program (Wis. Stat. § 119.23), as
amended by 1995 Wis. Act 27, sections 4002-4009, permits up to 15
percent of the student membership of the Milwaukee Public School System
to attend private schools, both sectarian and nonsectarian, at state
expense. The plaintiffs brought these actions claiming that the amended
program violates the First Amendment of the U.S. Constitution and
various provisions of the Wisconsin Constitution.
As it pertains to this appeal, the circuit court concluded that the
amended program violates Article I, section 18 of the Wisconsin
Constitution because its primary effect "is to benefit the religious
missions of the elementary and secondary religious schools and because
it compels Wisconsin taxpayers to support places of worship without
their consent." In a decision authored by Judge Deininger, the court of
appeals affirmed. Given projected participation in the program, the
court observed that well over $40 million in state payments could be
received by sectarian schools. The court thus concluded that "a primary
effect" of the amended program is the drawing of money from the state
treasury for the benefit of religious schools. This program, said the
court, violates the religious benefit clause of Article I, section 18 of
the Wisconsin Constitution.
Judge Roggensack filed a dissenting opinion.
Criminal Procedure
Ineffective Assistance of Counsel in Pretrial Stage - Remedy
State v.
Lentowski, No. 96-2597-CR (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)
The defendant was charged with one count of sexual intercourse with a
child over age 16 and with 10 counts of sexual exploitation of a child.
In plea negotiations the district attorney offered charge and sentencing
recommendation concessions. The defendant discussed the offer with his
attorney but rejected it based upon counsel's representations that the
prosecutor's sentencing recommendation was too harsh and that the
defendant had the defenses of consent and mistake of age available to
him. The case proceeded to trial and the jury found the defendant guilty
on all but one count.
After conviction the defendant claimed that he had been denied
effective assistance of counsel. Following a hearing the circuit court
held that his attorney was deficient in failing to tell him that consent
was not a valid defense in the case and in failing to inform the
defendant that he was unable to satisfy the evidentiary requirements of
a "mistake of age" defense to the charges of sexual exploitation of a
child. The court further found that the attorney's deficient performance
prejudiced the defense. There was no dispute but that the defendant
would have accepted the plea bargain if he had realized that he had no
defense to the charges.
The issue before the court of appeals was the determination of the
proper remedy for a defendant who has proven that, at the pretrial
stage, he or she received ineffective assistance of counsel which led
the defendant to proceed to trial when he or she otherwise would have
accepted a proffered plea bargain and pled guilty.
In a decision authored by Judge Snyder, the court held that where a
defendant can prove ineffective assistance of counsel at the pretrial
stage, the defendant must be granted a new trial. The decision of
whether to offer another plea bargain or to try the case a second time
is then left to the discretion of the prosecutor. This remedy places the
defendant at a stage in the proceedings prior to the point at which he
or she failed to receive the effective assistance of counsel.
Habitual Criminality - Determining Date of Prior Conviction
Mikrut v. State,
No. 96-2703 (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)
The state claimed that the defendant was a repeat offender and thus
eligible for treatment as a habitual criminal because of his prior
felony record. Section 939.62(2) of the Wisconsin Statutes provides that
a defendant is a repeater if he or she has been convicted of a felony
during the five-year period immediately preceding the commission of the
crime underlying the present charge.
At the core of this appellate litigation was the issue of determining
the date of the defendant's prior conviction. The defendant argued that
the date of the prior conviction was the date on which he was adjudged
guilty based upon his entry of a no contest plea, rather than the date
of the judgment of conviction when the court sentenced him. If the
earlier date applied, more than five years would have elapsed between
the prior conviction and the present offense and the defendant would not
be a repeater.
In a decision authored by Judge Nettesheim, the court of appeals
concluded that section 972.13 of the Wisconsin Statutes governs the
resolution of this case. The statute provides that "a judgment of
conviction shall be entered upon a verdict of guilty by the jury, a
finding of guilty by the court in cases where a jury is waived, or a
plea of guilty or no contest." The statute provides that the judgment of
conviction must recite the plea, the verdict or finding, the
adjudication and the sentence. Therefore, a judgment of conviction
cannot be entered until each of these events has occurred. In the case
before the court, this meant that the date of the defendant's prior
conviction was the date on which the circuit judge sentenced him, made
all of the judicial pronouncements required by section 972.13, and
entered the judgment of conviction against him.
Shackled Defendants - Escape - Identification Testimony
State v.
Knighten, No. 96-2595-CR (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)
Knighten was convicted of strong-arm robbery following a jury trial.
On appeal he raised several alleged errors. The court of appeals, in an
opinion written by Judge Nettesheim, affirmed.
First, the court properly admitted evidence of Knighten's "escape"
from custody. While being escorted to the bathroom on the morning of
trial, Knighten bolted and was apprehended about 30 minutes later. The
admissibility of flight or escape evidence is reposed to the trial
court's discretion. While not presenting the "usual escape situation,"
the evidence was properly admitted to show Knighten's consciousness of
guilt.
Second, no error occurred with respect to the shackles placed on
Knighten throughout the trial. Although Knighten asserted that the jury
could have seen the shackles, the court of appeals commended the trial
judge for the excellent record she made describing the construct of
counsel table and the jury's inability to see the shackles. It also was
revealed during voir dire that a potential juror observed a shackled
Knighten in the hallway. The trial judge properly refused the request
for a mistrial. First, the jury was instructed about the presumption of
innocence and that his custodial status had no bearing on guilt. Second,
jurors responded that they would not let such information interfere with
their verdict. Third, the sighting of a restrained defendant outside the
courtroom is not likely to arouse juror prejudice, especially when the
jury was later told about the escape.
As to the third claim of error, the trial judge properly refused the
defendant's request to have an eyewitness identify the defendant from an
array of 16 booking photos which had been covered to reveal only the
eyes and the top of the nose. Any probative value to Knighten's
"experiment" was outweighed by the likely confusion, waste of time, and
unfair prejudice arising from dissimilarities between the photo display
and the circumstances surrounding the identification.
Family Law
Termination of Parental Rights - Return of Child to Biological
Parent - Objections of Foster Parent
Sallie T. v. Milwaukee
County Department of Health and Human Services, No. 96-3147
(filed 8 July 1997) (ordered published 30 Sept. 1997)
Nadia S. first came to the attention of the juvenile court on a
request for emergency detention in 1989 when she was several months old.
In 1990 she was found to be a child in need of protection or services
and was placed in the foster care of Sallie T. and her husband, with
whom Nadia then lived until 1996. In that year the biological mother
filed a petition moving to revise the dispositional order affecting her
daughter and seeking the return of Nadia to her care. The Milwaukee
County Department of Health and Human Services, agreeing with the
mother's wishes, initiated a change of placement of Nadia back to her
mother pursuant to section 48.357(1) of the Wisconsin Statutes. Sallie
objected to the transfer. Following hearings the juvenile court
determined that the change of placement to the mother was in Nadia's
best interests. Sallie appealed.
The critical dispute on appeal centered on the meaning of the words
"the best interests of the child" as it is used in section 48.64(4)(c)
of the Wisconsin Statutes. This statute provides that at the court
hearing described above the circuit judge was to determine the case "so
as to promote the best interests of the child." Sallie argued that once
a child is removed from the home of a parent and lives with a foster
parent for more than six months, the Legislature intended a definition
of "the best interests of the child" similar to that used in custody
cases between two parents. Sallie urged that the juvenile court must
treat the foster parent and the biological parent as equals and decide
the "best interests of the child" issue on an objective basis. She
envisions the court giving no special preference to a biological parent
in a biological parent/foster parent custody dispute.
In a decision authored by Judge Curley, the court of appeals
affirmed. It agreed with the children's court that the wording of
section 48.64(4)(c) must be harmonized with the Children's Code's
purpose to preserve "the unity of the family." Wisconsin case law
supports the juvenile court's interpretation that a caretaker does not
stand as an equal to a biological parent in a placement dispute. In an
earlier case addressing the constitutionally protected right of a parent
to the custody of his or her child, the court had observed that "the
fundamental liberty interest of natural parents in the care, custody,
and management of their child does not evaporate simply because they
have not been model parents or have lost temporary custody of their
children to the State." See Howard M. v. Jean R., 196 Wis. 2d
16, 539 N.W.2d 104 (Ct. App. 1995). Consequently, when Sallie urged an
interpretation of the phrase "best interests of the child" that gives no
advantage to a biological parent in a custody dispute, but rather
applies a simple "best interests of a child test" as used in ordinary
custody cases between two parents, she was encroaching on a
constitutionally protected area. The court of appeals rejected that
interpretation.
Among several additional issues raised by Sallie was a claim that the
juvenile court erroneously exercised its discretion when it permitted
Nadia to be returned to her mother. Part of this challenge was a claim
that the juvenile court failed to consider Nadia's excellent adjustment
and achievements while in Sallie's care. Sallie contended that, in
deciding the case, the judge erred by not comparing her home and
parenting skills with those of the biological mother. The juvenile court
resisted this interpretation and refused to become engaged in a contest
between the two households. Instead, it concentrated on the
dispositional orders and the decision of the county department to return
Nadia to her mother. Having previously determined that the
interpretation of the "best interests of the child" test found in
section 48.64(4)(c) is to be tempered by the overall scheme of the
Children's Code, which promotes family unification, the court of appeals
held that the juvenile court was correct when it refused to engage in
the comparison urged by Sallie.
Insurance
Intentional Acts - Separate Acts of Negligence -
Doctrine of Fortuitousness
Haessly v. Germantown Mut.
Ins. Co., No. 96-3238 (filed 27 Aug. 1997) (ordered published
30 Sept. 1997)
The plaintiff and defendant were living together when defendant
severely beat her and failed to get her medical attention for five days.
Plaintiff contends that the omission to get medical aid constitutes a
separate act of negligence that is covered by the defendant's
homeowner's insurance. The trial judge granted summary judgment to the
homeowner's insurer, finding no coverage because of the policy's
intentional acts exclusion.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. The court framed the issue as one of first impression: If a
defendant intentionally commits a criminal act, battery, can his
subsequent failure to come to the victim's aid and seek treatment
constitute an independent act of negligence? On appeal both parties
framed the issue as whether any part of defendant's actions were
negligent, but the court did not reach this issue. Rather, it held that
"another principle of insurance contract law, the principle of
'fortuitousness,' is determinative of the coverage issue." The court
concluded that "a reasonable person would not expect that his or her
homeowner's policy would provide liability coverage for a failure to
provide aid to someone whom he or she had previously rendered helpless
through an intentional act." The result also was justified by public
policy factors.
Juveniles
Delinquency - Disabled Children - IDEA Reviews
State v. Trent
N., Nos. 96-2327 & 96-2328 (filed 6 Aug. 1997)
(ordered published 30 Sept. 1997)
The issue in this case was whether "a Wisconsin juvenile court is
barred from exercising its jurisdiction in a delinquency proceeding
while administrative review proceedings are pending under the federal
Individuals with Disabilities in Education Act (IDEA) and its Wisconsin
statutory equivalent." Writing for the court of appeals, Judge
Nettesheim reversed the circuit court and held that the juvenile court
does retain jurisdiction.
Juvenile court proceedings were commenced against young Trent because
he allegedly hit another student and tried to set fire to a school
locker. To resolve these cases, Trent entered into a consent decree that
he allegedly violated by a later act of disorderly conduct. Facing a
motion to revoke the consent decree and a new delinquency petition,
young Trent moved to dismiss both proceedings because he was emotionally
disturbed and administrative proceedings under IDEA were then
ongoing.
The court outlined the contours of IDEA and section 115.81 of the
Wisconsin Statutes, the Wisconsin equivalent. Although the federal
statute had been amended recently to expressly permit prosecution while
IDEA proceedings are pending, Wisconsin has not yet amended its
statutory version. Applying present law, the court found no conflict
between the two schemes. Administrative proceedings between the school
and parents to secure appropriate programs can proceed regardless of the
child's status in juvenile court. The school cannot "end-run" IDEA
because the juvenile court is the ultimate superintending authority.
Moreover, a Wisconsin school "is powerless to initiate delinquency
proceedings," which are initiated by police.
Motor Vehicle Law
OWI - Implied Consent - Erroneous Information Provided to Driver -
Litigating the Remedy
State v.
Ludwigson, No. 97-0417 (filed 13 Aug. 1997)
(ordered published 30 Sept. 1997)
The defendant was arrested for driving while under the influence of
an intoxicant. The officer read to her the provisions of the "Informing
the Accused" form which specify a driver's rights and obligations under
the implied consent law. In addition to reading the form's text to the
defendant, the officer then attempted to explain the form to her in
"layman's terms," but in doing so provided erroneous information about
the length of revocation the defendant faced for an implied consent
refusal and about the defendant's right to an alternate chemical test.
After the officer read and explained the form to the defendant, she
refused the test and an implied consent prosecution was initiated. The
trial court found that the defendant unlawfully refused to submit to
chemical testing, holding that the incorrect information given to her by
the officer did not affect her ability to make a choice about the
chemical testing. In a decision authored by Judge Brown, the court of
appeals affirmed.
In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d
196 (Ct. App. 1995), the court of appeals set forth a three-pronged test
to use when an allegedly intoxicated driver claims that a refusal to
take a chemical test stemmed from an officer's having either not
sufficiently read the "Informing the Accused" form or having gone beyond
simply reading the form. The three prongs are framed as the following
questions: 1) Did the officer not meet or did he or she exceed the duty
under the implied consent law to provide certain information to the
accused driver? 2) Was the lack or oversupply of information misleading
(which means was the information erroneous)? 3) Did the failure to
properly inform the driver affect his or her ability to make the choice
about chemical testing?
In this case the court held that the police officer exceeded his duty
under the implied consent statute by trying to explain the "Informing
the Accused" form and that the information given to the defendant was
erroneous. Thus, the critical issue was whether the provision of
erroneous information affected the defendant's ability to make the
choice about chemical testing.
The court held that, when an officer exceeds his or her duty in
advising an arrested driver about the implied consent law, and the extra
information provided is erroneous, then it is the defendant's burden to
prove by a preponderance of the evidence that the erroneous information
caused the defendant to refuse to take the test. As a matter of
procedure, the party claiming that the refusal was lawful has the burden
of production to present the trier of fact with enough evidence to make
a prima facie showing of a causal connection between the misleading
statements and the refusal to submit to chemical testing. Then, said the
court, the burden shifts to the state to prove otherwise. "At the end,
the trial judge, acting as the trier of fact, assesses the credibility
of the two sides and determines as a matter of fact whether the
erroneous extra information caused the defendant to refuse to take the
test. The defendant has the ultimate burden of proving the causation
element to a preponderance of the evidence."
In this case the defendant never presented any evidence to show that
the erroneous information caused her to refuse to take the test. She did
not take the stand on her own behalf and was unable to point out
anything in the officer's testimony that would support her claim. When a
party fails to produce any credible evidence as to an element of his or
her claim, the party fails to meet his or her burden of proof as a
matter of law. That is what occurred here.
Municipal Law
County Executives - Power to Veto Rezoning Legislation - Judicial
Review
Schmeling v.
Phelps, No. 96-2661 (filed 14 Aug. 1997)
(ordered published 30 Sept. 1997)
The plaintiffs petitioned to rezone certain property owned by them.
The town planning commission and town board approved the petition as did
the county zoning committee and the county board of supervisors.
However, the county executive vetoed the petition and an attempt to
override the veto failed. The plaintiffs then commenced this action
seeking a judgment declaring the county executive's veto invalid and
reinstating the county board's approval of the petition for rezoning.
The circuit court granted the plaintiffs' motion for summary
judgment.
The court of appeals, in a decision authored by Judge Deininger,
reversed and remanded. The court concluded that a county executive's
authority under Article IV, section 23a of the Wisconsin Constitution to
veto "resolutions or ordinances" passed by the county board, extends to
rezoning petitions, which are in essence proposed amendments to a county
zoning ordinance.
The appellate court further held that the executive's action in
vetoing a rezoning petition was a legislative act, subject to court
review in the same manner and according to the same standard as a county
board's failure to approve a petition to rezone a specified parcel. The
court observed that the county executive's argument that his reasons for
vetoing the proposed rezoning are beyond the reach of court review might
well be persuasive if the object of his veto were "general" legislation
and not a zoning action. Zoning actions, however, because they affect
the property rights of specific individuals, traditionally have been
treated differently than general municipal legislation under both
statute and case law. The judicial review, however, is very limited:
"since zoning is a legislative function, judicial review is limited and
judicial interference restricted to cases of abuse of discretion, excess
of power, or error of law."
Finally, the court concluded that section 893.80(4) of the Wisconsin
Statutes did not bar this action. This statute provides in pertinent
part that no suit may be brought against a political corporation,
governmental subdivision or agency or against its officers, officials,
agents or employees for acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions.
Applying these principles the court held that the facts of record in
this matter did not establish that the county executive abused his
discretion, exceeded his power or committed an error of law in vetoing
the rezoning petition. At best, the record shows that he made some
inconsistent legislative decisions in similar situations. That, said the
court, did not constitute a basis for judicial invalidation of the
veto.
Torts
Statute of Limitations - Discovery Rule
Fojut v. Stafl,
No. 96-1676 (filed 12 Aug. 1997)
(ordered published 30 Sept. 1997)
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed the dismissal of a medical malpractice action because it was
time barred by the statute of limitations. On Nov. 28, 1990, Helen had
an elective tubal ligation because she did not want to become pregnant.
On April 9, 1991, she missed her menstrual period and on April 24
discovered that she was pregnant. On April 22, 1994, she filed this
complaint.
Applying section 893.55(1) of the Wisconsin Statutes, the court held
that "the date of injury was the day Helen became pregnant, which was
sometime in March 1991." Thus her complaint was time barred by the
three-year statute of limitations. The court rejected the defendant's
argument that the date of injury was the date of the surgery. There was
no evidence that Helen was injured on the date of surgery. Helen did not
suffer "injury" until she became pregnant in March 1991.
Statute of Limitations - Accrual - Sexual Assaults
Joseph W. v. Catholic
Diocese of Madison, No. 96-2220
(filed 21 Aug. 1997) (ordered published 30 Sept. 1997)
The plaintiffs alleged that a priest sexually abused their child. The
trial court dismissed this action against the priest, the church and the
local diocese. The court of appeals, in an opinion written by Judge
Vergeront, affirmed. The opinion is a fact-intensive application of the
supreme court's recent decision in John B.B.B. Doe v. Archdiocese of
Milwaukee, 565 N.W.2d 94 (1997). The court of appeals observed that
"our supreme court in John B.B.B. Doe enunciated a clear public
policy against an indefinite extension of the statute of limitations and
gave that policy decisive weight against those favoring the plaintiffs
in circumstances that are similar in significant ways to the
circumstances" of this case. Conceding that "there are strong public
policy reasons for holding that the parents' claims for injuries out of
a nonincestuous sexual assault on their child accrues when they discover
or in the exercise of reasonable diligence should have discovered that
their child was assaulted, we hold that the parents' claims accrue on
the date of the last assault of their child, the same date on which
their child's claims accrue. We also hold that the statute of
limitations and the minority tolling period that applies to their
child's claims applies to the parents' claims."
Third-party Beneficiaries - Employment Contracts
Schilling v. Employers
Mut. Cas. Co., No. 96-2165 (filed 14 Aug. 1997) (ordered
published 30 Sept. 1997)
Schilling, a high school student, was injured in a high school shop
class accident. The injury occurred while he assisted his teacher in
attempting to remove a bearing from a machine. The teacher had requested
Schilling's assistance. The trial judge found that Schilling was a
third-party beneficiary of the employment contract between the school
district and the teacher and the school district's insurance contract.
For this reason the plaintiffs (Schilling and his parents) could recover
up to the $1 million limit on a breach of contract claim because the
$50,000 limit on tort claims in section 893.80 of the Wisconsin Statutes
was not applicable to the contract claim.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. The court held that Schilling was not a third party
beneficiary of the teacher's employment contract and therefore it was
unnecessary to address the insurance contract. Although some evidence
showed that it was the teacher's responsibility to supervise his
students and teach and enforce safety rules (for example, the wearing of
safety goggles), there was insufficient evidence that this was a "term
of his contract with the school district, let alone a term of his
contract included for the direct and primary benefit of the students."
The court scrutinized testimony by school officials, curriculum plans
and the faculty handbook. Neither the plans nor the handbook were
incorporated into the contract.
Judge Roggensack concurred.
This column summarizes all decisions
of the Court of Appeals. 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.
Wisconsin Lawyer