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). Full-text
decisions are available. 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
Administrative Law
Construction of Power Plants - Certificates of Convenience
and Necessity - Expedited Process
Responsible Use of Rural and
Agricultural Land (RURAL) v. Wisconsin Public Service
Commission, 2000 WI 129 (filed 19 Dec. 2000)
A certificate of public convenience and necessity is a statutory
prerequisite for the construction and operation of a facility that
generates 100 megawatts or more of electricity. Wis. Stat. section
196.491(3) and related provisions govern the certificate application
process. No one may commence the construction of such a facility unless
the person has applied for and received a certificate of public
convenience and necessity from the Public Service Commission. 1997
Wisconsin Act 204 modified the application process for certificates of
public convenience and necessity, allowing for an expedited process in
the handling of these matters. Among other things, the Act was intended
to bolster Wisconsin's electric generation reliability by streamlining
the new electric generation construction process. Section 96 of Act 204
expedited the certificate application process; however, it did not
substantively change the procedure.
The Public Service Commission granted a certificate of public
convenience and necessity for the construction and operation of a
natural gas-fired electric generation power plant with a capacity of up
to 525 megawatts located in Dane County. The Department of Natural
Resources (DNR) certified that the PSC and the DNR complied with the
Wisconsin Environmental Protection Act with respect to their review of
the proposed project. The PSC and the DNR applied an expedited review
process contained in the nonstatutory provision of section 96 of 1997
Wisconsin Act 204 to the application for the certificate of public
convenience and necessity.
The circuit court concluded that the PSC and the DNR properly applied
this expedited review process. In a majority decision authored by
Justice Crooks, the supreme court agreed that section 96 of Act 204
applied in this case. It also concluded that substantial evidence and
reasoning were evident in the record to support the findings of the PSC
and the DNR.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Criminal Law
Multiplicity - Dual Charges of Attempted First-Degree
Intentional Homicide as a Party to the Crime and Inchoate Conspiracy to
Murder the Same Victim
State v. Moffett and State v. Denson, 2000 WI 130 (filed 19
Dec. 2000)
The defendants were charged with attempted first-degree intentional
homicide as parties to the crime and with inchoate conspiracy to commit
first-degree intentional homicide of the same intended victim. Both
defendants moved to dismiss the conspiracy charge, arguing that Wis.
Stat. section 939.72(2), which provides, among other things, that no
person may be convicted "for conspiracy and ... as a party to the crime
which is the objective of the conspiracy," barred prosecution for both
offenses. The circuit court agreed and ordered the state to amend its
information to drop one of the charges.
The state appealed, arguing that the dual charges did not violate the
statute. The court of appeals agreed, reasoning as follows. The
legislature has classified both conspiracy (Wis. Stat. section 939.31)
and attempt (Wis. Stat. section 939.32) as inchoate offenses. Wis. Stat.
section 939.72 only bars simultaneous convictions for both an inchoate
and a completed crime. In this case the pleadings alleged two inchoate
offenses and thus did not seek the type of multiple convictions that are
prohibited by section 939.72.
In a unanimous decision authored by Chief Justice Abrahamson, the
supreme court affirmed the court of appeals. It concluded that nothing
in section 939.72 bars the state from charging a defendant with the
crime of conspiracy and with being a party to the crime that is the
objective of the conspiracy. The statute governs only convictions and
does not bar the state from bringing and proceeding with charges set
forth in multiple statutes. The issue of whether the defendants can be
convicted of both of these offenses was not before the court at this
juncture of the case.
The court rejected the defendant's argument that the two counts as
charged are multiplicitous. The two offenses are not identical in law
and fact, and there is nothing in the legislative history of section
939.72(2) that would indicate a legislative intent that multiple charges
may not be brought. This case is about charging multiple offenses, and
the court held that the state may properly charge the defendants with
being parties to the crime of attempted first-degree intentional
homicide and with conspiracy to commit first-degree intentional homicide
of the same intended victim.
Criminal Procedure
Sentences - Clerical Error
State v. Prihoda, 2000 WI
123 (filed 14 Nov. 2000)
In 1976 the defendant was sentenced to long prison terms for multiple
criminal offenses. There was, however, a discrepancy between the judge's
oral pronouncement of sentence and the written judgment of conviction
regarding the fifth count. Specifically, did the 30-year term for count
five run consecutive to the prison term in count one or, instead, to the
prison term in count two? The discrepancy surfaced in 1997 when prison
officials asked the clerk for clarification. The clerk's office, acting
independently of the circuit court and with no notice to the defendant,
"corrected" the written judgment of conviction to conform to the
sentencing transcript. The defendant sought to have the "corrected"
judgment vacated, but the circuit court denied the motion and the court
of appeals affirmed.
The supreme court, in a decision written by Chief Justice Abrahamson,
affirmed, although its reasoning differed from that of the lower courts.
First, the court held that the "circuit court, not the office of the
clerk of circuit court, must determine the merits of a request for a
change in the sentence portion of a written judgment of conviction
because of an alleged clerical error." The trial court "may either
correct the clerical error" or it may "direct the clerk's office to make
such a correction" (¶ 5). Second, it is within the trial court's
discretion to determine whether "an offender is entitled to notice and a
hearing before the correction of a clerical error in the sentence
portion of a written judgment of conviction is made" (¶ 6). In this
case, all three levels of Wisconsin's judiciary considered and rejected
the merits of his arguments, thus eliminating any need for remand.
Finally, the correction made in this case was not barred by laches nor
Wis. Stat. section 893.40 (1997-80), which proscribes correction of such
clerical errors more than 20 years after the entry of judgment.
Family Law
Divorce - Maintenance - Consideration of Premarital
Contribution to Spouse's Education
Meyer v. Meyer, 2000 WI 132
(filed 22 Dec. 2000)
Julia Meyer filed for divorce from Joseph Meyer after the parties had
lived together for more than 11 years and were married for the last four
of those years. Joseph is now a physician. He completed his
undergraduate education and most of his medical school training while
the parties lived together but were not married. After their marriage,
Joseph finished medical school and completed his residency. During the
time the parties lived together, a pattern was established that would
last into their subsequent marriage: Julia financially supported the
household and Joseph focused on his education.
In its judgment of divorce, the circuit court awarded Julia spousal
maintenance for eight years. In doing so, the court took into account
Julia's premarital contributions to the education of her spouse while he
was pursuing his undergraduate and medical degrees. The court of appeals
reversed the circuit court, concluding that the trial court erroneously
exercised its discretion by considering Julia and Joseph's nonmarital
relationship when it made its maintenance determination.
In a majority opinion authored by Justice Bradley, the supreme court
reversed the court of appeals. The only issue before the supreme court
was whether the circuit court, in making its maintenance determination,
erroneously exercised its discretion when it considered the premarital
contributions by one spouse to the other spouse's education. It
concluded that the circuit court did not erroneously exercise
discretion.
Section 767.26 of the Wisconsin Statutes provides a list of factors
that a circuit court is to consider when making a maintenance award.
These factors are the "touchstone of analysis" in maintenance cases. The
factor set forth in section 767.26(9) directs a circuit court to
consider: "the contribution by one party to the education, training, or
increased earning power of the other." The majority could find nothing
in this language limiting the contributions to those that arose only
during the marital period. This lack of limiting language indicated to
the majority that a court may freely consider the total contributions
and not merely those arising during the marriage. The court stressed
that under its decision, it is not cohabitation which may justify a
circuit court's discretionary decision to award maintenance, but rather,
it is the contribution to the education of the spouse which justifies
the award. In this case, the circuit court concluded that fairness and
equity required an award of maintenance and, because the supreme court
could find no error in this exercise of discretion, it upheld the
maintenance determination.
The majority opinion noted that this decision is but another addition
to a line of cases that have been described as "university
degree-divorce decree" cases. When analyzing fairness to the parties in
the context of these kinds of cases, the court has said that "it is
unfair ... to deny the supporting spouse a share in the anticipated
enhanced earnings while the student spouse keeps the degree and all the
financial rewards it promises" (¶ 41).
Chief Justice Abrahamson filed a concurring opinion that was joined
by Justices Bablitch and Prosser.
Justice Prosser filed a concurring opinion that was joined by Chief
Justice Abrahamson and Justice Bablitch.
Justice Sykes filed a dissenting opinion that was joined by Justices
Wilcox and Crooks.
Insurance
UM Coverage - "Unidentified Motor Vehicle"
Smith v. General Casualty,
2000 WI 127 (filed 19 Dec. 2000)
This case involved a three-vehicle collision. Smith was driving his
car when it was struck by a truck which had in turn been hit by an
unidentified vehicle. Smith sued the truck driver and his employer.
Smith also claimed that he was entitled to uninsured motorist (UM)
coverage under his own policy because of the involvement of the
unidentified vehicle. The trial court granted summary judgment to the UM
carrier because there was no physical contact between Smith's car and
the unidentified vehicle (it had struck the truck). The court of appeals
affirmed.
The supreme court, in a decision written by Justice Bablitch,
reversed. The issue before the court was whether a chain reaction
collision is a "hit" within the meaning of Wis. Stat. section
632.32(4)(a)2.b., so as to mandate UM coverage "when an unidentified
vehicle strikes a second vehicle, which in turn is propelled into the
insured's vehicle" (¶ 8). It held that UM coverage was so mandated.
The statute refers to an unidentified vehicle that is "involved in a hit
and run accident," a choice of words that connotes something broader
than a "direct hit" (¶ 12). The court next analyzed the case law,
which it separated into categories called "miss-and-run" and "extraneous
object" cases. Finally, the court found no public policy that precluded
its construction of the statute. Concerns about fraudulent claims are
"appropriately satisfied when an unidentified driver is involved in the
type of collision that occurred in this case" (¶ 28). In
conclusion, summary judgment was not appropriate.
Torts
Arrest - Excessive Force - Expert Affidavit - Issue
Preclusion
Robinson v. West Allis, 2000
WI 126 (filed 13 Dec. 2000)
Plaintiff Robinson sued two police officers and their police
department for failing to provide medical attention and for using
excessive force during the arrest. The circuit court denied defendants'
summary judgment motion, but the court of appeals reversed. It held that
the officers were not obligated to obtain medical treatment under the
facts of this case, and it also ruled that the excessive force claim was
defective because plaintiff failed to proffer an expert affidavit in
response to one filed by defendants.
The supreme court, in a decision written by Justice Bradley, reversed
the court of appeals. The lower court erred in its conclusion that
plaintiff was required to proffer expert evidence in order to establish
a prima facie claim for excessive force. "[P]rior case law belies any
contention that the matter is necessarily beyond the jury's
comprehension" (¶ 31). Thus, there is no "per se rule" that
requires such expert testimony (¶ 33). Moreover, nothing in the
record suggested that this case was somehow so complex or extraordinary
as to necessitate an expert (¶ 35).
The court also rejected defendants' arguments that issue preclusion
warranted dismissal of the civil claims. In criminal proceedings that
arose out of this fracas, the defendant pleaded guilty to carrying a
concealed weapon (CCW), pleaded no contest to battery to a law
enforcement officer, and agreed to have read in for sentencing two other
charges of resisting arrest and operating after revoked. Since they were
never litigated in the first place, "read-in" offenses cannot serve as a
bar under issue preclusion rules (¶ 43). Nor could the defendants
use the no contest plea. "The essential characteristic of the no contest
plea, which is that it cannot be used collaterally as an admission in
future civil litigation, dictates that the defendants may not use the
plea to prevent litigation in this subsequent civil action" (¶ 46).
Finally, the guilty plea to CCW had no relation to any issues being
"relitigated" in the civil action.
Next, the court held that Robinson's excessive use of force claim was
not barred by Heck v. Humphrey, 512 U.S. 477 (1994), which
compels courts to consider whether a judgment for the plaintiff
necessarily implies the invalidity of his conviction. No element of the
battery to a law enforcement officer would be necessarily "negated" by
the excessive use of force claim.
Lastly, the court held that defendants were not entitled to qualified
immunity given the state of the record. The door was left open, however,
for defendants to demonstrate at trial that they were entitled to
immunity.
The court then took up the claim for failure to provide medical
attention. It agreed that summary judgment was proper in the absence of
any evidence "that the officers were inattentive to an injury or the
signs thereof that it is anything more than a minor injury"
(¶ 64).
Wisconsin Lawyer
