h3>Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
This column summarizes all decisions 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.
Attorney fees Wisconsin Consumer Act - Collections
River Bank of DeSoto v.
Fisher, No. 95-0148-FT (filed 17 Dec. 1996)
In this per curiam opinion, the court took up the issue of attorney
fees that it had left open in its previous opinion in this case at 202
Wis. 2d 245 (1996). The supreme court remanded the case to the circuit
court for a determination of whether the bank's collection efforts
violated section 427.104(1)j) of the Wisconsin Statutes, which precludes
a creditor from claiming, attempting or threatening to enforce a right
with knowledge or reason to know that the right does not exist. If a
violation is found, attorney fees under section 425.308 shall be
awarded.
Business law
Contracts - Ambiguous Versus Indefinite Terms - Conversion - Unjust
Enrichment - Punitive Damages - Remittitur Procedures
Management Computer Services Inc. v.
Hawkins, Ask, Baptie & Co.,No. 93-0140 (filed 20 Dec.
1996)
A computer company, "MCS," entered into an agreement with an
accounting firm, "HABCO," to provide various goods and services. MCS
later sued HABCO, alleging that it had stolen computer programs,
including some that were not covered by the contract. The theft occurred
through the use of various backup tapes that were later erased to cover
the trail. Because the background of the case is lengthy and complex, it
is only feasible to summarize the supreme court's actions.
The complaint alleged breach of contract, conversion, unjust
enrichment and punitive damages. HABCO counterclaimed for breach of
contract. A jury found: "(1) HABCO breached the contract by failing to
purchase computer hardware from MCS, failing to pay 25% of the program
value to MCS for the use of the contract software, and failing to
compensate MCS for the use of the contract software, and failing to
compensate MCS for its use of the proprietary software, resulting in
damages totaling $1,520,750; (2) HABCO converted MCS's noncontract
software from the backup tapes, resulting in damages of $65,000; (3)
HABCO was unjustly enriched by copying the noncontract software,
resulting in $1,000,000 of damages; and (4) HABCO's conduct was
outrageous, with the jury assessing $1.75 million in punitive damages."
The jury awarded HABCO only about $5,000 on its counterclaim.
During post-trial motions, the trial judge gutted the verdict in
several critical respects. The court of appeals reversed in part and
affirmed in part. The appellate court agreed with the trial judge that
the contract was void for indefiniteness and that insufficient evidence
supported the unjust enrichment damages. But it reversed the reduction
of the conversion award (sufficient evidence supported the jury's
finding) and agreed that while the $1.75 million punitive damages were
excessive, $650,000 represented a more equitable award than the paltry
$50,000 set by the judge.
The supreme court, in an opinion written by Justice Crooks, affirmed
in part and reversed in part. The court reiterated that JNOV is
appropriate only where the facts found by the jury are insufficient as a
matter of law to support a cause of action. It then explained the
distinction between an ambiguous contract, which is nevertheless valid,
and one which is void as "indefinite": "Vagueness or indefiniteness as
to an essential term of the agreement prevents the creation of an
enforceable contract." (Emphasis original.) In this case the contract
may have been ambiguous but it was not fatally indefinite. "[W]hen
parties disagree about their intentions at the time they entered into a
contract, the question is one of contract interpretation for the jury,
not mutual assent or contract formation." Thus, the contract was not
void.
The court next considered whether HABCO was excused from future
contract performance because of MCS's prior material breach, which
presented a question of fact. The issue was not, however, adequately
presented to the jury, leaving the court to consider whether the breach
was so severe that it destroyed the essence of the contract. The supreme
court held that the contract's essence had not been destroyed. First,
the parties substantially performed the contract. Second, monetary
damages adequately compensated HABCO for its loss. Finally, HABCO waived
the claim through its actions at trial.
As to the conversion and unjust enrichment damages, the court held
that credible evidence supported the conversion award but not the unjust
enrichment award. The analysis involved the application of settled law
to the particular facts.
Finally, the court considered whether the trial judge acted correctly
in reducing the punitive damages award to $50,000. It once again
reaffirmed the Powers rule, under which the reviewing court will only
upset a trial court's remittitur for an abuse of discretion. And in this
case, the judge's conclusory reasons and failure to analyze evidence
empowered the supreme court to review the issue ab initio. The trial
judge arrived at the $50,000 figure by using a multiplier based upon
parallel criminal sanctions. The supreme court rejected "the notion that
courts can use a multiplier, or fixed ratio of compensatory-to-punitive
damages or criminal fines-to-punitive damages, to calculate the amount
of reasonable punitive damages." Instead, the supreme court focused on
such factors as HABCO's grievous and malicious copying of software that
MCS had entrusted to it to protect, and HABCO's use of it in competition
with MCS. The court also looked at the amount of compensatory damages,
the severity of possible criminal sanctions, and HABCO's economic
strength (although no evidence of its net worth was presented). In light
of all these factors, the $1.75 million punitive damage award was
clearly excessive, but the $650,000 figure established by the court of
appeals represented a reasonable amount.
Civil rights
Section 1983 Claims - Qualified Immunity - Foster Care Safety -
Standard of Care
Kara B. v. Dane County, No. 94-1081 & 2908 (filed 25
Nov. 1996)
In 1989 and 1990 two young children were adjudged to be in need of
protective care and were placed in the custody of Dane County for foster
home placement. While in the foster home, the children allegedly were
subjected to sexual and physical abuse. The girls brought actions
against Dane County alleging violation of their civil rights under 42
U.S.C. sec. 1983 as well as claims for negligence and professional
malpractice. Dane County asserted multiple defenses in each action.
Ultimately, the court of appeals found that Dane County officials could
not claim qualified immunity because they had violated the girls'
clearly established rights. The court also ruled that the public
officials' conduct should be assessed on a professional judgment
standard.
The supreme court, in an opinion written by Justice Wilcox, affirmed.
The court first addressed whether the public officials had violated the
girls' clearly established rights under the constitution or statutes as
of March 1989 (the date of the first placement in the foster home).
Justice Wilcox carefully discusses the Supreme Court cases explicating
the care owed by states to those in its custody, whether they are
prisoners, involuntarily committed mental patients or children deemed in
need of protection. These cases, said the court, culminate in DeShaney
v. Winnebago County, 489 U.S. 189 (1989), and recognize "a clearly
established constitutional right under the Due Process Clause to safe
and secure placement in a foster home."
The supreme court next addressed the appropriate standard of care
governing breaches of this right. Rejecting a "deliberate indifference
standard," the court held that "those entrusted with the task of
ensuring that children are placed in a safe and secure foster home owe a
constitutional duty that is determined by a professional judgment
standard."
Criminal law
Homicide by Intoxicated Use of a Vehicle - Affirmative Defense -
Contributory Negligence of Victim No Defense
State v. Lohmeier, No. 94-2187-CR (filed 29 Nov. 1996)
The defendant was charged with homicide by the intoxicated use of a
motor vehicle. The evidence demonstrated that he struck two pedestrians
who were walking along a roadway unlawfully (the unlawfulness of their
conduct being that they were walking along the right side of the
roadway). The trial court concluded that there was sufficient evidence
in the record to support a jury instruction on the statutory affirmative
defense codified in the homicide by intoxicated use of a vehicle
statute. Accordingly, the court instructed the jury that it should find
the defendant not guilty if it found that the defendant proved by a
preponderance of the evidence that the deaths of the victims would have
occurred even if the defendant had been exercising due care and had not
been under the influence of an intoxicant. Immediately following this
instruction, the court told the jury that it is no defense to a
prosecution for a crime that the victim may have been contributorily
negligent. This instruction was given pursuant to section 939.14 of the
Wisconsin Statutes.
The jury convicted the defendant. On appeal, the court of appeals
reversed the conviction, concluding that the contributory negligence
instruction deprived the defendant of a meaningful opportunity for
consideration by the jury of the statutory affirmative defense described
above.
The supreme court, in a majority decision authored by Justice Crooks,
reversed the court of appeals. The court first considered the standard
of review to be used by an appellate court when there is a claim that
the interplay of jury instructions, which themselves were legally
correct, violated a defendant's constitutional rights by misleading the
jury. The supreme court concluded that the standard to be used is
whether there is a reasonable likelihood that the jury applied the
challenged instructions in a manner that violates the constitution. In
making this determination, appellate courts should view the jury
instructions in light of the proceedings as a whole, instead of viewing
a single instruction in artificial isolation.
The court also used this case as an opportunity to explain the
meaning of the provision in section 939.14 that contributory negligence
of a crime victim is no defense. The court held that the statute means
that a defendant is not immune from liability because the victim of his
or her crime may have been negligent as well. This, however, does not
mean that contributory negligence may not be relevant in the case. It
often is relevant as to issues of causation and, in the context of the
homicide statute under which the defendant was prosecuted in this case,
could be the basis for the statutory affirmative defense quoted
above.
The majority concluded that there was not a reasonable likelihood
that the jury was misled in the way the instructions were given in this
case. However, it indicated that it would have been better practice for
the judge to have given a bridging instruction explaining the
relationship of the affirmative defense codified in the homicide statute
and section 939.14. It further recommended that the Wisconsin Criminal
Jury Instructions Committee develop such a bridging instruction.
Justice Janine Geske filed a dissenting opinion in which Chief
Justice Abrahamson and Justice Bablitch joined.
Criminal law
Felon in Possession of Firearm - Defense of Privilege
State v. Coleman, No.
95-0917-CR (filed 20 Dec. 1996)
The critical issue in this case was under what circumstances does a
defense of privilege exist to a charge of felon in possession of a
firearm contrary to section 941.29 of the Wisconsin Statutes.
In a unanimous decision authored by Justice Crooks, the supreme court
concluded that a narrow defense of privilege under section 939.45(6) of
the Wisconsin Statutes exists to a charge of felon in possession of a
firearm. To be entitled to the defense, the defendant must prove:
- 1)the defendant was under an unlawful, present, imminent and
impending threat of such a nature as to induce a well-grounded
apprehension of death or serious bodily injury, or the defendant
reasonably believed he or she was under such a threat;
- 2)the defendant did not recklessly or negligently place himself or
herself in a situation in which it was probable that he or she would be
forced to possess a firearm;
- 3)the defendant had no reasonable, legal alternative to possessing a
firearm, or reasonably believed that he or she had no such alternative;
in other words, the defendant did not have a chance to refuse to possess
the firearm and also to avoid the threatened harm, or reasonably
believed that he or she did not have such a chance;
- 4)a direct causal relationship may be reasonably anticipated between
possessing the firearm and the avoidance of the threatened harm;
and
- 5)the defendant did not possess the firearm for any longer than
reasonably necessary.
The court emphasized that a defendant will be able to establish these
elements "only on the rarest of occasions," because of the difficulty of
proving that he or she did not have a reasonable legal alternative to
violating the law, and that he or she possessed the firearm for a period
of time no longer than reasonably necessary.
Criminal procedure
Miranda Waivers - Foreign Language Warnings -
Interpreters - Burden of Persuasion
State v. Santiago, No.
94-1200-CR (filed 13 Dec. 1996)
The defendant pled guilty to possessing controlled substances with
intent to deliver. The court of appeals reversed because there was
insufficient evidence that the defendant had knowingly, voluntarily and
intelligently waived his Miranda rights. The supreme court, in an
opinion written by Chief Justice Abrahamson, affirmed.
First, the court clarified that the state bears the burden of showing
a valid Miranda waiver by a preponderance of the evidence. The
preponderance standard conforms to the "minimal federal standard under
the Fifth and Fourteenth Amendments." Wisconsin does not demand any
higher showing.
Second, the court "reaffirm[ed] that the sufficiency of the Miranda
warnings and waiver of Miranda rights are ultimate issues of
constitutional fact which this court determines de novo, benefiting from
the analyses of the circuit court and court of appeals."
Third, the court agreed that the state "need not in every case
present the foreign language Miranda warnings and their translation to
make a prima facie case that the warnings in the foreign language were
sufficient and that the accused made a knowing and intelligent waiver of
the rights." But this case presented an exception, because "the state
was put on notice during the presentation of its case at the hearing on
the suppression motion that the defendant was claiming that the Spanish
language warnings were inadequate." The accused's notice to the state is
sufficient if it is set forth either in the motion to suppress or
raised, as here, during the state's initial presentation of evidence at
the hearing.
The court also held that when presented with such a claim, "the state
must produce evidence of the sufficiency of the officer's foreign
language Miranda warnings beyond the officer's conclusory statement that
the officer gave the proper Miranda warnings." Specifically, "[a]n
informing officer must, upon the accused's request, testify regarding
the foreign language Miranda warnings given to the accused and those
foreign language words must be preserved in the record." In this case
the record was inadequate because the officer never testified to the
entire Spanish text of the Miranda warnings, no one translated the words
of the informing officer from Spanish into English, and there was reason
to believe that the Spanish language warnings failed to accurately
convey the Miranda rights.
Investigatory Stops - Reasonable Suspicion
State v. Waldner, No.
95-1291-CR (filed 13 Dec. 1996)
This case concerns whether a police officer had reasonable suspicion
justifying the investigative stop of the defendant which ultimately led
to his arrest for operating while under the influence of an intoxicant.
The evidence revealed that at 12:30 a.m. on the date in question a
police officer saw the defendant's car traveling on a main street in
Richland Center at a slow rate of speed. The car stopped briefly at an
intersection where there was no stop sign or light and then turned onto
a cross-street where, according to the police officer, it accelerated to
a speed of 20 to 25 mph in several seconds. Following the car, the
officer saw it pull into a legal streetside parking space. The driver's
side door opened and the defendant, who was in the driver's seat, poured
some liquid - which the officer described as looking like "a mixture of
liquid and ice" - out of a plastic glass onto the roadway. The defendant
then got out of his vehicle and began walking around the front of it.
When the officer pulled up and identified himself, the defendant began
to walk away from the squad car. At that point the officer asked the
defendant to stop, which he did.
On this evidence the circuit court concluded that the reasonable
inferences from the facts supported the police officer's suspicion that
the defendant had committed a crime and therefore the investigative stop
was lawful. The court of appeals reversed, finding that neither the
facts nor reasonable inferences drawn from the facts raised the
officer's "inchoate hunch" to the level of a reasonable suspicion.
The supreme court, in a unanimous decision authored by Justice
Bablitch, reversed the court of appeals. It concluded that the totality
of the circumstances, including the defendant's unusual driving at a
late hour and his dumping of liquid and ice from a plastic cup,
coalesced to form the basis for a reasonable suspicion grounded in
specific, articulable facts and reasonable inferences from those facts.
The police officer was therefore justified in temporarily stopping the
defendant, thereby freezing the situation in order to further
investigate. The court agreed with the circuit judge that these facts,
looked at together, formed a reasonable basis for the officer's
suspicion that the defendant was impaired and very well could have been
intoxicated.
The court agreed with the defendant that the acts observed by the
officer were themselves lawful and that each could well have innocent
explanations. But, said the court, that is not determinative. When a
police officer observes lawful but suspicious conduct, if a reasonable
inference of unlawful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences that could be
drawn, police officers have the right to temporarily detain the
individual for the purpose of inquiry. Police officers are not required
to rule out the possibility of innocent behavior before initiating a
brief stop.
Search and Seizures - Automobile Stops - Passengers
State v. Harris, No.
95-1595-CR & 95-1596-CR (filed 27
Dec. 1996)
The defendant, Harris, pled guilty to possessing marijuana but
challenged the legality of the seized evidence. The court of appeals
affirmed the trial court's denial of his motion to suppress.
The supreme court, in an opinion written by Justice Geske, reversed
in a decision that addressed two issues. First, the court held "that
when the police stop a vehicle, all of the occupants of that vehicle are
seized and thus have standing to object to the seizure." The court
recognized the "growing trend" among state and federal courts that
automobile passengers do not surrender their reasonable expectation of
privacy. This "bright-line" standard applies "to all police-initiated
vehicle stops." No distinction is drawn between "rights of passengers in
a traffic stop and the rights of passengers in an investigatory stop."
The court overruled contrary language in an earlier decision.
Second, the court also held that the officers in this case lacked
reasonable, articulable suspicion that justified the seizure of any of
the occupants, including Harris, who was a passenger. Thus, "[t]he state
need not establish that the police had reasonable, articulable suspicion
to seize the particular defendant before the court, but only that the
police possessed reasonable, articulable suspicion to seize someone in
the vehicle." (Emphasis added.)
Mental health commitments
Probable Cause Findings by Court Commissioner -
Reviewability in Circuit Court
Milwaukee County v. Louise M., No. 95-0291-FT
Milwaukee County v. Theodore S., No. 95-0292-FT (filed 27
Nov. 1996)
This case concerns the issue of whether the circuit court has the
authority to review probable cause determinations by a court
commissioner for involuntary detention under the Mental Health Act and,
if so, what procedures and time guidelines apply.
Louise M. was involuntarily detained pursuant to the Mental Health
Act when a police officer filed a statement of emergency detention. She
was removed from her residence and taken against her will to a locked
ward of the local mental health facility. A court commissioner found
probable cause to believe the allegations in the emergency detention
statement and, at the close of the probable cause hearing, Louise filed
a request for a hearing de novo in the circuit court. The circuit court
ruled that it lacked the authority to conduct such a review. The same
basic facts occurred in the case involving respondent Theodore S.
The court of appeals reversed the circuit court, holding that the
circuit court did have the authority to review a probable cause finding
by a court commissioner. The appellate court decision required the
circuit court to provide, upon a request, a de novo probable cause
hearing to a subject of an involuntary commitment proceeding within 72
hours after a court commissioner has already found that probable cause
exists to believe the allegations in the petition for commitment.
The supreme court, in a unanimous decision authored by Justice
Steinmetz, affirmed in part and reversed in part. The supreme court
concluded that because the circuit court retains its original
jurisdiction over matters that it delegates to court commissioners, the
circuit court has the power to review probable cause determinations.
However, there is no statutory or constitutional right guaranteeing to
the parties such a review. The court held that this is a discretionary
review of the record to be held in a timely manner prior to the final
hearing or trial in the case.
This discretionary review in cases where the court commissioner has
found probable cause to detain is to be contrasted with the situation
where a court commissioner dismisses the petition. In the latter
scenario, the supreme court has held that, at the request of the county,
a circuit court must conduct a de novo hearing to review a court
commissioner's decision to dismiss a petition for want of probable
cause. See In the Matter of Mental Condition of C.M.B., 165 Wis. 2d 703,
478 N.W.2d 385 (1992).
Motor vehicle law
Operating After Revocation - Repeat Offenders -
Proof of Prior Convictions
State v. Spaeth, No.
95-1827-CR (filed 20 Dec. 1996)
The defendant was charged with a fifth offense within a five-year
period of operating a motor vehicle after revocation of his operating
privilege (OAR). The key issue in the case concerned the appropriate
method for proving prior OAR convictions for purposes of sentencing
under the enhanced penalty provisions applicable to repeat OAR
offenders. The defendant argued that the somewhat stringent methods for
proving that a convicted criminal is an habitual offender within the
meaning of the general repeater statute (Wis. Stat. 939.62) should also
apply to proving that the repeat OAR offender should be subjected to
increased penalties. A unanimous supreme court, in a decision authored
by Justice Bradley, concluded that the statute which controls proof of
habitual criminality under the general criminal repeater statute (Wis.
Stat. 973.12(1)) does not govern the method of proving prior OAR
convictions.
The court held that the state must establish prior OAR convictions by
placing before the circuit court "competent proof" of prior convictions.
Generally, competent proof of prior OAR convictions may emanate from
either of two sources. First, a defendant's admission, whether given
personally or imputed through counsel, is competent proof of prior OAR
convictions. Second, in the absence of an admission, the state may
establish prior OAR convictions by placing before the court reliable
documentary proof of each conviction. This could include using the
criminal complaint to establish serial OAR convictions. However, when
the state chooses to rely solely upon the complaint to establish the
prior convictions, the complaint must be accompanied by reliable
documentary corroboration of the asserted convictions. Such documentary
corroboration must describe the dates of each prior OAR offense and
conviction, as well as the basis for the underlying license
revocation.
In sum, the court held that, hereafter, "the state establishes the
existence of a defendant's prior OAR convictions by competent proof
when, at a minimum, it introduces into the record at any time prior to
the imposition of sentence, either: l) an admission; 2) copies of prior
judgments of conviction for OAR; or 3) a teletype of the defendant's
Department of Transportation driving record. It is anticipated in most
cases the state will satisfy the described standard by attaching to the
complaint the DOT teletype of the defendant's driving record. The
adoption of this standard does not affect any sentence based upon prior
OAR convictions that have been established by competent proof other than
a DOT teletype, copies of prior judgments of conviction, or an
admission."
The court opined that establishing prior OAR convictions by competent
proof is not an onerous task. The state may do so through introduction
of the reliable documentary proof described above. Alternatively,
competent proof can be established through an admission by the defendant
or defense counsel. A direct question from either the prosecutor or the
circuit court asking whether the defendant admits to the existence of
each prior OAR conviction should resolve the issue. "We urge the circuit
court to include such a question in its colloquy with the defendant at
the plea hearing or sentencing."
OWI - Repeat Offenders - Proof of Prior Convictions
State v. Wideman, No.
95-0852-CR (filed 20 Dec. 1996)
This case concerns the methods of proving that a defendant is a
repeat Operating While Intoxicated (OWI) offender. The defendant urged
that the more stringent methods for proving that a convicted criminal is
a repeater under the habitual criminality statute (Wis. Stat. 939.62)
should also apply to proving that a convicted OWI driver is a repeat OWI
offender. In a unanimous opinion authored by Chief Justice Abrahamson,
the supreme court rejected this approach.
Instead, it concluded that if the accused or defense counsel
challenges the existence or applicability of a prior offense, or asserts
a lack of information or remains silent about a prior offense, the state
must establish the prior offenses for the imposition of the enhanced
penalties by presenting "certified copies of conviction or other
competent proof before sentencing." See State v. McAllister, 107 Wis. 2d
532, 319 N.W.2d 865 (1982). If an accused admits a prior offense, that
admission is competent proof of a prior offense and the state is
relieved of its burden to further establish the prior conviction. In
this case that admission was made by the defense attorney and the
supreme court concluded that defense counsel may, on behalf of the
defendant, admit prior offenses for purposes of establishing that the
defendant is a repeat OWI offender.
Because the court concluded that there was an admission of the prior
offenses in this case, it felt that it did not need to comment further
on the other methods by which the state may establish prior OWI
offenses. It was persuaded, though, that both the state and defense
counsel often are careless in making a record about prior offenses. It
urged that both prosecutors and defense attorneys adopt and follow
better practices in the sentencing stage of these kinds of cases.
Said the court, the state and defense counsel should, prior to
sentencing, investigate the accused's prior driving record. The state
should be prepared at sentencing to establish the prior offenses by
appropriate official records or other competent proof. Defense counsel
should be prepared at sentencing to put the state to its proof when the
state's allegations of prior offenses are incorrect or defense counsel
cannot verify the existence of the prior offenses. The state and defense
counsel should, whenever appropriate, stipulate to the prior offenses.
If the state and defense counsel follow these suggestions, there should
be no need for either party to request a continuance of a sentencing
proceeding to obtain proof of prior offenses.
The court also recommended that before imposing sentence the circuit
court make findings based upon the record about the exact dates and
nature of prior offenses.
Criminal OWI Prosecution Following Administrative Suspension -
Double Jeopardy
State v. McMaster, No.
95-1159-CR (filed 13 Dec. 1996)
The issue in this case is whether the Double Jeopardy Clause of the
Fifth Amendment to the U.S. Constitution prohibits a criminal OWI
prosecution subsequent to the administrative suspension of the
defendant's operating privilege for having failed a chemical test for
intoxication. See Wis. Stat. 343.305(7)-(8).
A unanimous supreme court, in a decision authored by Justice
Steinmetz, concluded that the Wisconsin Legislature intended
administrative suspension to serve as a civil remedial sanction. The
court further concluded that the administrative suspension statute is
not so punitive in effect and nature as to render it punishment for
purposes of double jeopardy analysis. Accordingly, it concluded that the
Double Jeopardy Clause of the Fifth Amendment does not prohibit the
criminal prosecution of the defendant for violating the OWI law
subsequent to the administrative suspension of the defendant's operating
privileges.
Municipal law
Appeals of Special Assessments - Bond Requirement - Deposit of Cash
in Lieu of Bond
Aiello v. Village of Pleasant
Prairie, No. 95-1352-FT (filed 19 Dec. 1996)
In 1992 the Village of Pleasant Prairie extended municipal water and
sewer services to the petitioners. When the work was completed, the
village levied special assessments against their properties. The
petitioners appealed these assessments to the circuit court.
Section 66.60(12)(a) of the Wisconsin Statutes provides that a person
with an interest in a parcel of property may appeal an assessment "by
executing a bond to the village in the sum of $150." In this case the
property owners posted a cash deposit of the required amount rather than
executing a bond. Nothing in the statute expressly authorizes a cash
deposit in lieu of a bond.
The circuit court held that the bond was a jurisdictional requirement
which had not been satisfied and that therefore it lacked subject matter
jurisdiction to hear the petitioners' appeal. The court of appeals
affirmed on the same ground.
The Wisconsin Supreme Court, in a unanimous decision authored by
Chief Justice Abrahamson, reversed. It concluded that while section
66.60(12)(a) does not authorize a cash deposit to serve as a bond,
another statute permits this procedure. Section 895.346 authorizes a
cash deposit in lieu of "any bond or undertaking ... in any civil or
criminal action or proceeding." Accordingly, the court held that the
property owners' cash deposit in this case was in compliance with
section 66.60(12)(a) when correctly read in conjunction with section
895.346.
Torts- Liability Waivers - Exculpatory Contracts
Yauger v. Skiing Enterprises
Inc., No. 94-2683 (filed 19 Dec. 1996)
The Yaugers' 11-year-old daughter was killed in a skiing accident.
The circuit court dismissed the Yaugers' wrongful death action because
the father, Michael, had signed a liability waiver on his daughter's
behalf, which also bound his wife. The court of appeals affirmed.
The supreme court reversed in a decision written by Justice Bablitch.
The exculpatory contract violated public policy on two grounds.
First, the contract "failed to clearly, unambiguously, and
unmistakably explain to [Michael] that he was accepting the risk of [the
ski resort's] negligence." For example, nowhere in the form did the word
"negligence" appear. Nor did the release define the term "inherent risks
in skiing." The inherent ambiguity of the phrase vitiated the waiver's
validity.
Second, "the form looked at in its entirety failed to alert the
signer to the nature and significance of the document being signed." For
example, the one page form was entitled "Application." Nor was there
anything "conspicuous about the paragraph containing the waiver."
Wisconsin Lawyer