Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Procedure | Employment
Law | Motor Vehicle Law | Municipal
Law | Torts |
Criminal Procedure
Sex Predator Placement Pursuant to Negotiated Settlement - Remedy
When Placement Unavailable
State v. Castillo, No.
95-1628 (filed 7 Nov. 1997)
The defendant was adjudicated delinquent based upon two counts of
sexual assault. Prior to his release from the juvenile correction
facility, the state filed a petition requesting an order detaining him
as sexually violent. Pursuant to a negotiated settlement, the state
agreed to recommend supervised community placement in exchange for the
defendant's admission that he was a sexually violent person. However,
the placement could not be accomplished due to community opposition and
the unavailability of a facility.
The state subsequently moved to reopen the matter and recommended
institutional placement. The circuit revised its original order and
committed the defendant to the Wisconsin Resource Center. The court of
appeals reversed, concluding that the state violated the defendant's due
process rights when it breached the agreement described above. The
appellate court remanded the case to allow the defendant to withdraw his
admission that he was sexually violent.
The Wisconsin Supreme Court granted the defendant's petition to
review in this case. However, after briefing and oral argument, the
court dismissed the petition for review concluding that it had been
improvidently granted, because the court of appeals decision was not
"adverse" to the defendant.
John Doe Investigations - Requirements of Petition for a John
Doe
State ex rel. Reimann v. Circuit Court
for Dane County, No. 96-2361-W (filed 16 Dec. 1997)
One issue was presented for review in this case: When a person
complains to a circuit judge that such person believes a crime has been
committed within the judge's jurisdiction, does the John Doe statute
(Wis. Stat. section 968.26) require the judge to examine under oath the
complainant and any witnesses produced by him or her? In a unanimous
decision authored by Justice Steinmetz, the supreme court concluded that
the statute requires a circuit judge to conduct such an examination only
when the complainant has sufficiently established that he or she has
"reason to believe" that a crime has been committed within the judge's
jurisdiction.
To trigger the judge's duty to examine the complainant and any
witnesses produced by him or her, the complainant must first establish
that he or she has "reason to believe" that a crime has been committed.
The statute requires a John Doe complainant to do more than merely
allege in conclusory terms that a crime has been committed. The
allegation must be supported by objective, factual assertions before a
circuit judge is required to conduct an examination. Accordingly, if a
John Doe complainant, in his or her petition, presents only conclusory
allegations, or fails to allege facts sufficient to raise a reasonable
belief that a punishable crime has been committed, the circuit court
judge may, in the exercise of discretion, deny the petition without an
examination. This approach, said the court, permits complainants to
initiate reasonable, fact-based John Doe proceedings to determine
whether a crime has been committed and if so, by whom. At the same time
it also allows the judge to screen for and weed out groundless and
frivolous petitions without requiring further proceedings that may be
injurious to the accused.
The court did not equate the "reason to believe" standard described
above with the probable cause required to support a criminal complaint.
"There is no requirement that a finding of probable cause be made before
a John Doe proceeding is commenced. To the contrary, the statute
prescribes that a determination of probable cause is to be made after
subpoena and examination of witnesses."
In determining whether a complainant's petition is worthy of further
treatment, a circuit court judge must act as a neutral and detached
magistrate. In making this decision, the judge should not weigh the
credibility of the complainant or choose between conflicting facts and
inferences. Though circuit court judges must perform some gatekeeping
functions under the John Doe statute before an examination may be held,
the court indicated that it did not intend to close the doors of the
courtroom to those persons who may have reason to believe a crime has
been committed. In addition, the judge must recognize that many John Doe
petitions are filed pro se by complainants not trained in the
complexities of criminal law and procedure. Where a mere technical error
on the face of the petition, or an inadequacy in the facts alleged
therein, can be cured by a simple request for additional information,
justice may be best served under the John Doe statute by the judge
simply making such a request or examining the complainant.
If a circuit judge denies a petition for further proceedings without
examining the complainant, that decision is subject to review under the
provisions of Wis. Stat. section 809.51, by which a writ of mandamus may
be sought to compel the judge to conduct under oath an examination of
the complainant and any witnesses he or she might produce.
Employment Law
Employment-at-will - Public Policy Exception -
"Whistle-blowers"
Hausman v. St. Croix Care
Center, No. 96-0866 (filed 19 Dec. 1997)
The plaintiffs were formerly employed at a nursing home. Concerned
about the quality of care received by residents, they took a series of
actions culminating in a complaint to state authorities. The nursing
home eventually terminated both employees, citing budgetary concerns as
to one and ascribing misconduct to the other. Both were
employees-at-will. The plaintiffs filed this action alleging a private
right of action under section 50.07 of the Wisconsin Statutes, wrongful
termination through breach of public policy, and other claims. The
circuit court dismissed the complaint for failure to state a claim for
which relief could be granted. The court of appeals affirmed.
The supreme court reversed in an opinion written by Justice Bradley.
The court reviewed the case law construing the public policy exception
to the employee-at-will doctrine. Various statutes clearly established
"a fundamental and well-defined public policy of protecting nursing home
residents from abuse and neglect." The complaint did not, however,
support the claim that the employer had "implicitly commanded" the
plaintiffs not to report the suspected abuse. Rather, the court
addressed whether Wisconsin should embrace a "whistle-blower exception."
As a matter of policy, the supreme court refused to recognize a "broad
whistle-blower exception" protecting employees who report threats to the
public's health, safety, and welfare." But the court did fashion a
narrower whistle-blower exception shielding employees who report abuse
or neglect of nursing home residents. Nor was a civil damages action
precluded because the Legislature also has provided criminal penalties
for the same conduct (retaliatory firing for reporting abuse).
Motor Vehicle Law
OWI - 0.08 Prosecutions - Proof of Prior Convictions Before the Jury
When Defendant Offers to Stipulate to His or Her Status as a Repeat
Offender
State v. Alexander, No.
96-1973-CR (filed 18 Dec. 1997)
The defendant was charged with operating a motor vehicle while having
a prohibited alcohol concentration of 0.08 percent or more. His
prohibited alcohol concentration was 0.08 percent, rather than 0.10
percent, because he had two or more prior convictions, suspensions or
revocations for alcohol-related driving offenses. Accordingly, one of
the elements of the state's case against him was his status of having
been previously convicted of two or more such offenses.
Before the final pre-trial conference in the case, the defendant's
attorney filed a motion in which the defendant offered to stipulate that
his driving record correctly set forth that he had two prior OWI
convictions. With this offer to stipulate the defendant also filed a
motion in limine requesting that the court order the state to
refrain from introducing any evidence regarding the defendant's prior
OWI convictions. The defendant also moved to modify the substantive jury
instructions, the impact of which would have been to eliminate the
element regarding his prior convictions as a matter for the jury to
determine at trial. The state agreed to stipulate to the existence of
the prior OWI convictions, but it refused to waive that portion of the
jury trial that would be relevant to making a finding on that
element.
The circuit court denied the defendant's motion and concluded that
the state can be required to stipulate to the fact that the defendant
had two prior relevant convictions but that the state could not be
forced to waive any portion of the jury trial. Therefore, the circuit
court concluded that evidence regarding the element of the defendant's
prior convictions could be presented to the jury, although the extent of
information would be limited.
Consistent with this ruling, the circuit court informed the jury of
the party's stipulation that the defendant had two or more convictions,
suspensions or revocations as counted under Wis. Stat. section
343.307(1) (the counting statute); the specifics of the defendant's
driving record apparently were not disclosed to the jury. The court also
gave a cautionary instruction to the jury about the limited purpose for
which this evidence was received and that it was not proof of guilt of
the present offense.
The issue before the supreme court was whether the circuit court
erroneously exercised its discretion when it allowed the introduction of
evidence of two or more prior convictions, suspensions or revocations as
counted under section 343.307(1), and further submitted that element to
the jury when the defendant fully admitted to the element, and the
purpose of the evidence was solely to prove that element. Because the
court concluded that the purpose of the evidence was solely to prove the
defendant's status as a person having two or more prior convictions,
suspensions or revocations, it held that the probative value of the
evidence was far outweighed by the danger of unfair prejudice to the
defendant. In a unanimous decision authored by Justice Bablitch, it
concluded that admitting this evidence and submitting the status element
to the jury was an erroneous exercise of discretion.
When a circuit court is faced with circumstances like those presented
in this case, the supreme court held that it should simply instruct the
jury that, in order to convict the accused, they must find beyond a
reasonable doubt that: 1) the defendant was driving or operating a motor
vehicle on a highway; and 2) the defendant had a prohibited alcohol
concentration when he or she drove or operated the vehicle. The
"prohibited alcohol concentration" means 0.08 grams or more of alcohol
in 210 liters of the person's breath or 0.08 percent or more by weight
of alcohol in the person's blood.
Finally, the court concluded that because the evidence of the
defendant's guilt in this case was overwhelming, admitting the evidence
described above regarding the defendant's repeat offender status and
submitting the status element to the jury was harmless error.
Municipal Law
Dispute Resolution - Disciplinary Proceedings Against Deputy
Sheriffs - Arbitration
Milas v. Ciszewski, No.
96-1197 (filed 2 Dec. 1997)
The Ozaukee County sheriff suspended a deputy for misconduct and
recommended to the Law Enforcement Committee that the deputy be
dismissed. The committee reviewed the charges and determined that
dismissal was appropriate.The deputy objected to the decision and
requested arbitration pursuant to a provision of the collective
bargaining agreement. The county and the deputy participated in the
arbitration proceedings. The arbitrator concluded that dismissal was not
an appropriate sanction and that the deputy should be returned to
duty.The county subsequently moved to vacate the arbitration award,
claiming that under Wis. Stat. section 59.21(8)(b)6 (1991-1992) judicial
review by the circuit court was the exclusive means to challenge the Law
Enforcement Committee's decision. The deputy moved to confirm the
arbitration award. The circuit court granted the county's motion for
summary judgment and vacated the award. The deputy appealed to the court
of appeals, which certified the case to the Wisconsin Supreme Court.
The court of appeals certified two issues. The first was whether the
deputy's sole and exclusive remedy following an adverse decision of the
Law Enforcement Committee was review by the circuit court pursuant to
the statute cited above. The second issue was whether the county was
estopped from challenging the validity of the arbitration award. In a
decision authored by Chief Justice Abrahamson, the supreme court held
that the county was estopped from challenging the validity of the
arbitration award. Accordingly, it did not reach the first issue
certified by the court of appeals.
The estoppel doctrine, also called equitable estoppel, focuses on the
parties' conduct. The elements of equitable estoppel are: 1) action or
nonaction, 2) on the part of one against whom estoppel is asserted, 3)
which induces reasonable reliance thereon by the other, either in action
or nonaction, and 4) which is to his or her detriment.
The supreme court concluded that all elements of equitable estoppel
were present in this case. Prior to the deputy's discharge, the county
had entered into a collective bargaining agreement that provided
arbitration for disciplinary disputes. The county's full participation
in the arbitration process in this case implied a good faith effort to
resolve the dispute through arbitration. At no time did the county
object to the arbitrator's jurisdiction. Relying upon the county's
failure to object to arbitration and upon the county's full
participation in arbitration proceedings, the deputy pursued his
grievance through arbitration. The county's actions caused the deputy to
invest time and resources in the arbitration proceeding. Had the deputy
known that the county would object to the arbitrator's jurisdiction, the
deputy might have sought review of the Law Enforcement Committee's
decision in circuit court.
Because the elements of the equitable estoppel defense were met in
this case, the court needed to consider whether the defense should be
applied against the county. It recognized that the doctrine is not
applied as freely against governmental agencies as it is against private
persons. Nevertheless, the court has recognized that estoppel may be
available as a defense against the government if the latter's conduct
would work a serious injustice and if the public interest would not be
unduly harmed by applying estoppel. The court concluded that principles
of justice demand in this case that the county be prevented from forcing
the deputy to begin the grievance proceeding again. It would be unjust,
said the court, to allow the county to agree to arbitrate a disciplinary
dispute and then, when the decision is adverse, to allow the county to
question the arbitrator's jurisdiction over the dispute. Applying the
estoppel doctrine would prevent a serious injustice to the deputy and
produce no undue harm to the public interest.
Torts
Bad Faith - HMOs
McEvoy v. GHC, No.
96-0908 (filed 12 Nov. 1997)
In this case the supreme court held that the common law tort of bad
faith applies to "out-of-network benefit decisions" made by all health
maintenance organizations (HMOs). Nor are such claims precluded by
chapter 655 of the Wisconsin Statutes concerning medical malpractice
actions.
The plaintiff, 13-year-old Angela, was diagnosed with anorexia
nervosa. Her HMO initially referred her for treatment to an
out-of-network provider but after six weeks the HMO decided to
discontinue coverage for that provider's services. Angela's treating
physician and a psychologist employed by the out-of-network provider
opposed the decision. At the time of termination, about four weeks of
inpatient psychological care benefits remained under Angela's contract
with the HMO. Despite treatment by a network provider, Angela suffered a
relapse and later sued the HMO for bad faith denial of coverage.
The supreme court, in an opinion authored by Justice Bradley,
characterized the issue as one of first impression. The contractual
relationship between the HMO and subscriber presented a "power imbalance
similar to that between a classical insurer and policyholder." Even a
"staff model HMO," such as the one in this case, although not organized
for the "sole purpose of providing insurance," engaged in some aspects
of the insurance business. Based upon the "practical and legal
similarities of HMOs and traditional insurance companies, ... the common
law tort of bad faith applies to HMOs making out-of-network
decisions."
The court then discussed the factors that distinguish bad faith and
medical malpractice claims against HMOs. For example, mistakes in
diagnosis or treatment by a health-care provider involve malpractice,
not bad faith. Conversely, where an HMO staff member reviews a coverage
request but does not participate in treatment, the bad faith analysis
applies because denial is a "nonmedical, coverage-related decision." The
court cautioned, however, that "an HMO insurer that denies payment for
care because contractual coverage of such care is reasonably debatable
cannot be held liable for bad faith tort."
The key is the reasonableness of the decision denying coverage. "[A]
bad faith cause of action may arise when an HMO refuses to consider a
patient or physician request for care or coverage, if the HMO makes no
reasonable investigation of a request for care or referral put to it, if
the HMO conducts its evaluation of a care or coverage request in such a
way as to prevent it from learning the true facts upon which the
plaintiff's claims are based, or if, as the plaintiffs allege in this
case, the HMO conducts its evaluation of a request and bases its
decision primarily on internal cost-containment mechanisms, despite a
demonstrated medical need and a contractual obligation."
This column summarizes all decisions
of the Wisconsin Supreme Court. 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