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Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Appellate Procedure | Civil Procedure | Constitutional Law | Consumer Law |
| Criminal Procedure | Motor Vehicle Law | Open Records Law | Sexual Predator Law |
| Torts | Trials | Worker's Compensation |

"Substantially Probable" - Dangerousness -
Vagueness - Standard of Review

State v. Curiel, No. 97-1337 (filed 2 July 1999)

In 1989 Curiel was convicted of second degree sexual assault. Before his release from prison, the State commenced this civil commitment alleging that Curiel was a sexually violent person under chapter 980 of the Wisconsin Statutes. At his commitment trial, the only disputed issue concerned whether Curiel would engage in future acts of sexual violence. Two experts for the state said he would; the sole defense expert said he would not. The circuit court found that the state met its burden of proof and ordered Curiel committed. The court of appeals affirmed.

The supreme court, in a decision written by Justice Steinmetz, affirmed but disagreed with the court of appeal's analysis of the term "substantial probability" as it related to Curiel's future dangerousness. First, the supreme court defined the term "substantial probability" (or "substantially probable") as used in the statute. Relying on dictionary definitions, the court determined that the term was unambiguous and means "that the state [must] prove beyond a reasonable doubt that the person subject to the commitment proceedings is dangerous because his or her mental disorder makes it 'much more likely than not' that the person will engage in future acts of sexual violence." The term does not mean, as Curiel contended, that future violence is "extremely likely."

Second, the supreme court also rejected Curiel's argument that the "much more likely than not" standard employed in chapter 980 violated equal protection because it conflicted with the supposedly stiffer commitment provisions under chapter 51 of the Wisconsin Statutes. Both chapter 980 and chapter 51 employ the same "much more likely than not standard"; in short, they do not differ in any material way.

Third, the standard was not void for vagueness. The "much more likely than not" measure provides "proper standards of adjudication" and "is not so obscure that men [sic] of common intelligence must necessarily guess at its meaning and differ as to its applicability."

Fourth, the evidence supported the commitment order. In reviewing the evidence, the supreme court applied the standard of review applicable to criminal proceedings, not civil trials. Defects in the expert testimony and inconsistencies in the evidence went to the weight of the evidence.

Justice Prosser did not participate in this case.

"Substantially Probable" - Dangerousness -
Sufficiency of Evidence - Expert Testimony

State v. Kienitz, No. 97-1460 (filed 2 July 1999)

Kienitz was ordered committed as a sexually violent person. The court of appeals affirmed. Before the supreme court, Kienitz posed a series of challenges most of which were disposed of by the supreme court's decision in a companion case, State v. Curiel, No. 97-1337 (filed 2 July 1999), digested above.

Affirming the lower court's decision, Justice Wilcox wrote for the supreme court and addressed two additional issues not disposed of by Curiel. First, Kienitz alleged that the evidence was insufficient. Applying the criminal standard of appellate review, the supreme court found "that the evidence was more than sufficient to establish beyond a reasonable doubt that it was 'much more likely than not' that Kienitz would engage in future acts of sexual violence." Kienitz's long record, his pattern of reoffending, and his denial of need for treatment supported the finding.

Second, Kienitz raised a variety of arguments regarding the sufficiency and type of expert testimony that must support a finding of dangerousness. Since expert testimony had been received, the supreme court declined to address the "broader question of whether expert testimony is required as a matter of law." Under Wisconsin's standards for admitting expert testimony, inconsistencies among experts raise credibility questions for the trier of fact. Moreover, the trial court can consider "nonexpert" testimony as well in determining dangerousness.

Finally, the court rejected Kienitz's argument that the commitment order violated his due process rights. In essence, this claim relied upon his other allegations of error.

Justice Prosser did not participate in this case.

Experts - Opinion Testimony - Inadmissible Bases

State v. Watson, No. 95-1067 (filed 29 June 1999)

The state filed a petition alleging that Watson was a sexually violent person under chapter 980 of the Wisconsin Statutes. After conducting a probable cause hearing, the circuit court dismissed the petition because of insufficient evidence. The court of appeals affirmed.

The supreme court, in a decision written by Justice Prosser, reversed in an opinion that addresses the role of expert testimony and the function of the probable cause determination in chapter 980 cases.

First, the court held that a State's witness properly testified as an expert on Watson's "sexual motivation." Under section 907.02, expert testimony is admissible whenever it will "assist" the jury. In this case, "the average person is simply not prepared to expound on paraphilia or other sex-related mental disorders. An expert should be able to assist the fact finder in determining the nature and source of an offender's motivation."

Second, the court addressed "whether expert testimony based in whole or in part on inadmissible evidence may itself be admitted into evidence." Here the state's expert had relied on a hearsay statement by one of Watson's victims recorded in a presentence investigation report (PSI). Clinical psychologists and other corrections' specialists routinely and reasonably rely on PSIs. Hence, under section 907.03, such experts can predicate their opinions on this type of inadmissible bases.

This conclusion led to a third point: the weight given to the expert's testimony. Section 907.03 permits expert's opinions based on inadmissible evidence, but it "does not transform inadmissible hearsay into admissible hearsay." And most certainly, the rule "does not permit hearsay evidence to come in through the back door of direct examination." In short, the expert's reasonable reliance on the PSI did not make the victim's hearsay admissible. In chapter 980 cases, the trial court must carefully evaluate expert opinions, especially where they are based on inadmissible hearsay, in order to safeguard the respondent's statutory and constitutional rights. [Civil and criminal trial lawyers should note the supreme court's observations about how inadmissible evidence under section 907.03 should be handled in jury trials.]

Fourth, based on the supreme court's independent review of the entire record, it was satisfied that the state had established probable cause under chapter 980. Since this discussion is detailed and extremely fact-intensive, space constraints do not permit further elaboration.

Justice Steinmetz did not participate.

Supervised Release from Confinement - Power of Circuit Court
to Order Creation of Programs or Facilities Necessary
to Accommodate an Order for Supervised Release

State v. Sprosty, No. 97-3524 (filed 30 June 1999)

The respondent was committed as a sexual predator under Wis. Stat. chapter 980 in 1995. In 1996 he filed petitions for supervised release and/or for discharge. After an evidentiary hearing the circuit court granted the petition for supervised release and ordered that a treatment plan be developed and that the respondent remain in custody until further order of the court. Several months later the circuit court determined that the programs and facilities necessary for the respondent's treatment and supervision, as well as for the protection of the community, were not available in Crawford County (the respondent's county of residence) or in other counties. The court further concluded that it could not compel private agencies to accept the respondent nor would it require the state to build facilities in order to provide supervised release. Accordingly, it denied the respondent's supervised release and returned him to secure confinement. The court of appeals reversed, determining that the unambiguous statutory language of Wis. Stat. section 980.08(5) does not allow a circuit court to refuse to order release once it has determined that release is appropriate.

In a majority opinion authored by Justice Wilcox, the supreme court affirmed the court of appeals. Under the statute a petition for supervised release must be granted unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if not confined in a secure mental health unit or facility.

The first issue the supreme court considered was whether the circuit court may consider the availability of facilities, the feasibility of creating facilities if they do not exist, and the cost of such creation when deciding whether to place a sexually violent person on supervised release. The court concluded that section 980.08(4) requires the circuit court to grant the petition for supervised release unless the state proves its case by clear and convincing evidence. The statute permits, but does not require, the circuit court to consider statutorily articulated factors (such as where the person will live and how the person will support himself or herself) in making its decision on whether supervisory release is appropriate. Any consideration of costs or availability of facilities must be in keeping with providing the "least restrictive" means to accomplish treatment of the person and the protection of the public. However, said the court, such considerations should not ultimately trump the granting of a petition for supervised release when the state has failed to prove its case.

The court next considered whether the circuit court has the authority under section 980.08(5) to order a county department or the state Department of Health and Family Services (DHFS) to create whatever programs or facilities are necessary, regardless of cost, to accommodate an order for supervised release. The court concluded that if supervised release is appropriate, the court shall notify DHFS, DHFS and a county department shall prepare a plan, the plan shall address the person's needs, the plan shall specify who is responsible for providing treatment and services, and the plan shall be presented to the court. If DHFS is unable to arrange for a county to prepare a plan, the court shall designate and order a county through DHFS to prepare a plan, and place the person on supervised release in that county. In sum, it held that a circuit court has authority to order a county, through DHFS, to create whatever programs or facilities are necessary to accommodate an order for supervised release.

The supreme court next considered whether the circuit court has the authority to reconsider an earlier decision to order supervised release upon obtaining more complete information on available facilities. It concluded that nothing in the statute allows the circuit court to reconsider its decision on supervisory release because of inadequate facilities; rather, it must order a county to develop a plan and it must place the person on supervised release pursuant to the plan in that county.

The final issue for the supreme court's review involved deciding who bears the cost of the necessary programs and facilities under chapter 980, the county department or DHFS. The court agreed with the state that the responsibility to find, arrange, and plan for necessary programs and facilities "is shared between DHFS and the county where the person will live, or such other designated county. And as requested by the state, we now hold that DHFS has the financial burden of paying for necessary programs and facilities for those persons who are evaluated or committed under Wis. Stat. chapter 980."

Justice Prosser did not participate in this decision.

Chief Justice Abrahamson filed a concurring opinion.

Lead Paint Poisoning - Common Law Duty of Landlords -
Safe Place Statute - Warranty of Habitability

Antwaun A. v. Heritage Mutual Ins. Co., No. 97-0332 (filed 9 July 1999)

In 1991 the plaintiff (who was then 3 years old) was diagnosed with lead poisoning. He contended that this poisoning was caused by lead paint peelings, flakes, and chips that he had ingested in various apartments in the city of Racine, two of which are involved in this appeal. One was an apartment where the plaintiff and his mother resided from 1990-1991. The other was a residence where the plaintiff's aunt resided and where the plaintiff frequently was a guest. Shortly after being diagnosed with lead poisoning, the plaintiff filed suit against various corporations, individual landlords, and their insurers, alleging various causes of action which are discussed below. The circuit court granted summary judgment against the plaintiff on each one of them.

On the plaintiff's negligence claim, the supreme court was asked to decide the following certified question from the court of appeals: Does a landlord of an older residential rental property have a common law duty to inspect, or test, for contamination from lead-based paint once the landlord knows that the paint is flaking from the walls? In a majority opinion authored by Justice Bradley, the court concluded that a duty to test for lead paint arises whenever a landlord of residential property constructed before 1978 (the federal Consumer Products Safety Commission banned lead paint for residential uses after Feb. 27, 1978) either knows or in the use of ordinary care should know that there is peeling or chipping paint on the rental property. Where peeling or chipping paint is present in a pre-1978 residential structure, the court concluded that it is foreseeable that lead paint may be present which, if accurate, would expose the inhabitants to an unreasonable risk of harm.

The court next addressed the plaintiff's Safe Place Statute cause of action. Wis. Stat. section 101.11(1) creates three different categories of persons covered by the statute: employers, owners of places of employment, and owners of public buildings. The plaintiff asserted claims under the latter two categories. The court concluded that the claim that the apartments were a "place of employment" under the statute was rejected. It was uncontroverted that neither landlord employed any person on a regular basis at their properties. As to whether the properties in question were "public buildings" as used in the Safe Place Statute, the statute speaks of structures used by the public or by three or more tenants. The plaintiff contended that the term "tenant" refers to persons in possession while the landlords argued that the term refers to the number of units in the building. The court believed that the landlords had the better argument. This interpretation excluded one of the properties from the statute because it had only one unit. The other property contained three units and conceivably could be covered under the statute. However, the peeling and chipping paint in that residence was not in an area open to the public or shared by the other tenants. It is thus outside the coverage of the Safe Place Statute.

The plaintiff also argued that violations of a state lead paint statute and a City of Racine ordinance prohibiting lead paint from being used on most surfaces constitute negligence per se. The supreme court disagreed. It was unable to conclude that the Legislature or the Racine City Council intended that a violation of their respective laws constitutes negligence per se.

Finally, the court considered the plaintiff's claim that the circuit court erred in granting summary judgment in favor of the landlords on his warranty of habitability cause of action. Under the warranty of habitability doctrine, the residential lease between a landlord and tenant carries with it an implied promise that the premises will be fit for human habitation. The court concluded that the plaintiff's implied warranty of habitability cause of action cannot be maintained against the landlord of the premises where his aunt lived because the plaintiff was not in privity of contract with that landlord. His implied warranty cause of action cannot be maintained against the landlord of the property where he and his mother lived because he seeks compensatory rather than contractual damages. A tenant's claim for breach of the implied warranty of habitability is a breach of contract claim for contractual damages. An injured party's claim for personal injuries is a tort claim in negligence for compensatory damages. Such claims may coexist, they may be caused by the same act, and they may be owned by the same party if it is the tenant who was injured. It is not the breach of warranty, however, that gives rise to the cause of action for the personal injury. Instead, it is the negligent act or omission.

Justice Crooks filed a concurring opinion that was joined by Justice Wilcox.

Immunity - Public Officers

Kierstyn v. Racine Unified School Dist., No. 97-1573 (filed 9 July 1999)

John and Judith Kierstyn were employed by the Racine Unified School District for many years. When Judith was diagnosed with cancer, the Kierstyns met with a benefits specialist employed by the district in order to discover what disability benefits Judith was entitled to receive. The specialist was not an agent of the Wisconsin Retirement System and could not authoritatively represent to district employees what WRS benefits they were entitled to receive. The Kierstyns alleged that the specialist gave them incorrect information about the timing of an application for disability benefits and, because the application was not filed prior to Judith's death, her husband received a nonannuitant survivor benefit and not the more financially generous disability survivorship annuity.

The district filed a motion for summary judgment contending that it and its benefits specialist were immune from suit under Wis. Stat. section 893.80(4). The circuit court granted the motion, concluding that the specialist's act of giving information was a discretionary act rather than a ministerial one. The court of appeals affirmed that decision. In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals.

Pursuant to section 893.80(4) governmental immunity relieves both a political subdivision and public officials from acts done pursuant to legislative, judicial, quasi-legislative, or quasi-judicial capacities. To describe an activity as quasi-judicial or quasi-legislative is to say that the activity involves the exercise of discretion. This immunity, however, is not absolute. Over time the supreme court has recognized several exceptions to public officer immunity, some of which were claimed in this case and were addressed by the supreme court.

The court began its analysis by considering whether the benefits specialist was under a ministerial duty to provide Wisconsin Retirement System information to district employees and, even if he wasn't, whether a ministerial duty was created when he chose to provide that information. The court concluded that the school district was under no legal obligation to hire a benefits specialist and that the specialist involved in this case was under no legal obligation to offer advice about WRS benefits to employees of the district. Similarly, once the specialist elected to provide some WRS benefit information, he was under no legal duty to do so in a particular manner or according to any particular rules. While the benefits statute may have been clear and the specialist may have negligently applied it when advising the plaintiffs, the statute did not direct the specialist to act in any manner. In sum, the specialist was under no ministerial duty.

Even where a public officer's duty is not prescribed in its time, mode, and occasion so that nothing remains for the officer's judgment, the factual circumstances of the case may nevertheless clearly require a public officer to act. This "known danger" exception to public officer immunity is a very limited one, having rarely been asserted successfully. The "known danger" exception is effective only in those cases where the "nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act." The supreme court could not say that the possibility of reduced disability benefits was "of such force" to impose a duty on the benefits specialist to act.

Finally, the plaintiff argued that even if the specialist's duty was discretionary and did not present a known danger, the specialist is not entitled to immunity because any discretion on his part was "professional" in nature. This argument was based on Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 292 N.W.2d 816 (1980). In that case the supreme court decided that discretionary acts performed by public officers would only be clothed in immunity if those acts involved "governmental discretion." As a result, the court held that a county medical examiner's decision to perform an autopsy was an exercise of governmental discretion. However, the medical examiner was not entitled to immunity for any negligence in his performance of the autopsy. While the court recognized that the medical examiner's method of performing the autopsy was discretionary in nature, it concluded that the "discretion was medical, not governmental" and therefore not clothed in immunity. Since 1980 when Scarpaci was decided, this exception has been successfully asserted on only two other occasions, both occurring in the medical context. In Stann v. Waukesha County, 161 Wis. 2d 808, 468 N.W.2d 775 (Ct. App. 1991), the court of appeals concluded that Scarpaci's rule extends no further than the medical setting.

In this case the supreme court declined the invitation to revisit the Stann rule. Even if it were inclined to conclude that Scarpaci should be interpreted as excluding a public officer's "professional" discretionary acts from immunity, it would not include a benefits specialist within that category.

In sum, the court concluded that the plaintiff did not show that the specialist's conduct fits any of the exceptions to public officer immunity. Accordingly, it affirmed the court of appeals.

Justice Bablitch filed a dissenting opinion that was joined by Justice Crooks.

Products Liability - Oregon Statute of Repose -
Oregon Damage Limits - Inconsistent Verdicts -
Punitive Damages

Sharp v. Case Corp., No. 96-2559 (filed 23 June 1999)

A Racine County jury awarded more than $6 million in damages to Sharp, a minor residing and working in the state of Oregon, for injuries he suffered while clearing hay from a baler that was attached to a tractor manufactured in Wisconsin in 1972 by Case Corporation. The jury also made an award of $2 million for punitive damages. The circuit court entered judgment in accordance with the jury verdict and the court of appeals affirmed the circuit court. In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals.

The first issue on appeal was whether the court of appeals erred in refusing to apply the products liability statute of repose of the state of Oregon, which Case Corporation asserted would bar this action as untimely. After reviewing the Oregon case law, the supreme court concluded that Oregon's product liability statute of repose is not applicable to a post-sale warning claim, such as the one involved in the present case. Because Wisconsin law contains no such statute of repose, the court held that no genuine conflict exists between the laws of Wisconsin and Oregon on this issue and that the plaintiff's action was timely under Wisconsin law.

The next issue was whether the court of appeals erred in refusing to apply an Oregon law that Case asserted limits the plaintiff's recovery of noneconomic damages to $500,000. Because Oregon courts are not applying the Oregon statutory limits on noneconomic damages, the Wisconsin Supreme Court determined that it should not apply the Oregon statutory limits in this case even if it were to decide, which it did not, that this Oregon law is applicable in this case. The court therefore applied Wisconsin law. No Wisconsin law limits noneconomic damages in products liability cases.

The next issue was whether the court of appeals erred in refusing to strike down the jury verdict on the grounds of inherent and fatal inconsistencies in the jury's responses to the special verdict questions. Case Corporation argued that it is inconsistent for a jury to find that the product was not unreasonably dangerous in a strict product liability sense but that the product was negligently designed. Case urged the court to overrule Greiten v. LaDow, 70 Wis. 2d 589, 235 N.W.2d 677 (1975). Greiten held that a jury finding that a product is not unreasonably dangerous does not preclude a jury finding of negligent design. Later cases have applied the Greiten rule and the court declined Case's invitation to overrule it.

The last issue considered by the court was whether the circuit court erred, as a matter of law, in submitting the question of punitive damages to the jury. A circuit court should not submit the issue of punitive damages to the jury in the absence of evidence warranting a conclusion to a reasonable certainty that the party against whom punitive damages may be awarded acted with the requisite "outrageous" conduct. One's conduct is outrageous if done either maliciously or in wanton, willful, and reckless disregard of the plaintiff's rights. In a products liability case, a manufacturer may be found to have acted in reckless disregard if, after having gained specific knowledge of a product's defect and its potential harm, the manufacturer fails to take some action that the defect demands, such as adequate testing procedures, effective quality control, sufficient warnings, or adequate remedial measures such as product recalls or post-sale warnings. The supreme court agreed with the circuit judge's conclusion that the evidence in this case was sufficient to send the question of punitive damages to the jury.

Justice Wilcox did not participate in this decision.

Juries - Disqualification - Bias

State v. Faucher, No. 97-2702-CR (filed 8 July 1999)

The supreme court used this case as a vehicle to "clarify" Wisconsin's "jury bias jurisprudence." As such, it has enormous importance in civil or criminal cases that involve any allegation of juror bias, whether it surfaces during jury selection or later. The opinion contains an enormously helpful discussion of past case law and the reasons why the supreme court concluded that a new approach was called for.

The court observed that prior cases had adopted terminology that described juror bias as "implied," "actual," or "inferred." Concluding that these terms had outlived their usefulness, Justice Steinmetz explained why the court had elected to jettison this terminology and adopt a schema that more accurately reflects "both the reason why a juror cannot be impartial, and the analysis a circuit court should use to discern whether a prospective juror is or is not impartial." The new terminology includes categories of "statutory," "subjective," and "objective" bias. "Statutory bias" relates to those persons disqualified pursuant to particular statutes, such as section 805.08(1) of the Wisconsin Statutes. "Subjective bias" describes "bias that is revealed through the words and the demeanor of the prospective juror." Normally, this is detected during voir dire and the circuit court is clearly in a superior position to make this determination. "Objective bias" refers to whether "the reasonable person in the individual prospective juror's position could be impartial." The circuit court must consider the voir dire responses and the facts relating to the case. The opinion strongly underscores the importance of making a complete record concerning any allegation of juror bias. The roles of court and counsel are addressed throughout the opinion.

In this case, a juror belatedly recognized the state's key witness, a woman who observed the defendant sexually assaulting an elderly nursing home patient. Toward the close of the state's case-in-chief, the judge conducted an individual voir dire of the juror. The juror expressed a strong, clear opinion that the witness was a person of integrity who would not lie under oath but also said that he could set aside this opinion based on the evidence. The supreme court upheld the trial court's determination that the juror was not subjectively biased on the facts of record. It nevertheless concurred with the court of appeal's determination that the juror was objectively biased: "a reasonable person in his position could not set the opinion aside despite the best of intentions to do so."

Jury Selection - Juror Bias - Prior Jury Service

State v. Kiernan, No. 97-2449-CR (filed 8 July 1999)

The defendant was tried for OWI. The very same defense attorney had used the identical defense before another jury in the same county several days earlier - without success. When the 20 prospective jurors entered the courtroom, defense counsel observed that five of them had served on the earlier jury. The trial judge refused to remove the jurors for cause. The impaneled jury convicted the defendant. The court of appeals reversed the conviction and the supreme court affirmed in an opinion that applied the Faucher (see above) analysis to a case involving jurors allegedly biased by prior jury service.

Writing for the supreme court, Justice Bradley observed that there was no allegation of "statutory bias" (an admittedly rare occurrence) and the failure to record the voir dire hamstrung the court's determination of "subjective bias." Justice Bradley stressed the significance of a careful and complete record on this issue, noting that appellate courts are already at a disadvantage in gauging subjective bias because of the importance of demeanor and sincerity: "[t]ake away the transcript and an appellate court's disadvantage increases exponentially."

The court next addressed objective bias, determining two issues. First, Wisconsin law does not require that veteran jurors be categorically removed "for cause as a matter of law from subsequent trial with facts and issues that are nearly identical to the initial trial." Rather, an individualized showing will be required. Second, the court was satisfied that such an individualized showing had been made in this case. The prospective jurors, with "admirable candor," revealed that they would give no weight to the proffered defense to the effect that a Breathalyzer^TM could yield inaccurate readings "for reasons other than operator error or machine malfunction." In short, they had expressed their intention not to listen to the defense's evidence. This constituted objective bias.

Justice Crooks dissented based on his views about the automatic reversal rule in cases where the defense is forced to exercise peremptory strikes because jurors should have been disqualified for bias. Justice Bradley responded in a concurrence.

Jury Selection - Juror Bias - Automatic Error

State v. Mendoza, No. 97-0592-CR (filed 8 July 1999)

The defendant was convicted of possessing cocaine with intent to deliver. During jury selection, the trial judge removed four prospective jurors based on their prior criminal records. The court of appeals reversed.

The supreme court, in an opinion written by Justice Prosser, reversed the court of appeals. In essence, the trial judge had "equated criminal conviction with cause" to strike. This was an error of law because Wisconsin law clearly does not automatically disqualify prospective jurors based on prior criminal convictions. The court then looked at the record to determine whether the particular jurors, not considered as a "class," could have been stricken.

First, the court applied the Faucher standards (see above) to this case. The excluded jurors exhibited neither "statutory bias" or "subjective bias" as defined in Faucher. Three of the four jurors, however, could have been stricken for "objective bias" based on their criminal pasts and voir dire responses. (The discussion is fact intensive and will not be summarized.) But a fourth juror, a man with a prior burglary conviction in Alabama more than 30 years ago, did not meet the threshold of objective bias.

The supreme court held that this error in excluding the fourth juror did not necessitate automatic reversal. Specifically, the court declined "to recognize the erroneous dismissal of a juror for cause as an additional peremptory challenge." Thus, the defendant received his full complement of strikes, unlike other cases where the judge's erroneous refusal to strike an unworthy juror forced the defendant to spend a peremptory strike to remedy the mistake. Applying harmless error analysis, the court upheld the conviction. The defendant conceded that the jury actually impaneled was impartial.

Jury Selection - Peremptory Strikes - Failure to Object -
Ineffective Assistance

State v. Erickson, No. 98-0273-CR (filed 8 July 1999)

Erickson was tried for sexual assault and child enticement. During jury selection, the judge informed both sides that they would each get four peremptory strikes. That was incorrect. Because of Erickson's criminal record and the penalty enhancer he faced, both the state and Erickson should have received seven peremptory challenges, not four. No one caught the mistake or objected at trial. It was undisputed that an impartial jury was impaneled, although Erickson used a peremptory strike to remove a juror who claimed to have been sexually abused as a child. The jury acquitted Erickson of sexual assault but convicted him of enticement. During postconviction proceedings, the trial judge determined that he had to apply the "automatic reversal rule" in light of trial counsel's deficient performance. The court of appeals certified the case to the supreme court.

The supreme court, in an opinion written by Justice Bradley, reversed the circuit court's order requiring a new trial. Because the error had been waived at trial, the supreme court refused to approach "this case as if Erickson had properly preserved his loss of peremptory strikes with an objection at the time of the circuit court's error." Rather than apply a straightforward rule of automatic reversal, the situation called for application of the ineffective assistance of counsel standard. There was little doubt that counsel's representation was deficient. The real question centered upon whether any prejudice constituted a "'probability sufficient to undermine the confidence in the outcome' of the case." The court declined to presume prejudice in this setting, especially since he had been tried by an impartial jury and the state and the defense received equal numbers of peremptory strikes. Citing the companion decision in Mendoza, the supreme court limited the automatic reversal rule of State v. Ramos, 211 Wis. 2d 12 (1997), to situations where, upon proper objection, the trial judge erroneously retained an unqualified juror and forced the defense to spend a peremptory, leaving it with fewer peremptory strikes than the state.

Based on the record, the court refused to find actual prejudice, especially where appellate counsel candidly conceded the difficulty of making any showing beyond rank speculation.

The final issue concerned whether the one juror who claimed to have been a child sexual abuse victim herself should have been struck for cause. Applying earlier cases, the supreme court found no reason to question the judge's determination that she could act fairly and impartially as a juror.

Necessity of Treatment Orders - Appeals -
Service of Notice of Appeal

McDonough v. Wisconsin Dep't of Workforce Development, No. 97-3711-FT (filed 30 June 1999)

The plaintiff provided medical services for a City of Wisconsin Rapids employee who injured his shoulder while at work. His injuries were compensable under worker's compensation. The plaintiff submitted a claim to the worker's compensation carrier which refused to pay a portion of it, asserting that the treatment provided after a certain date was medically unnecessary.

The plaintiff filed a necessity of treatment dispute request with the Department of Workforce Development (DWD) pursuant to Wis. Stat. section 102.16(2m). The department determined that the services provided by the plaintiff were not medically necessary. The order stated that it would become final within 30 days unless appealed to the circuit court.

The critical issue in this case involved service of the appeals. The plaintiff argued that he complied with statutory requirements by serving the Labor and Industry Review Commission (LIRC) with enough copies of the summons and complaint as there were defendants. DWD contended that service was defective because the plaintiff should have served DWD with the requisite number of copies.

In a unanimous decision authored by Justice Bablitch, the court held that service for appeals from DWD necessity of treatment orders can be achieved by timely serving either DWD or the LIRC with enough copies of the summons and complaint as there are defendants in the case. Because the plaintiff served enough copies on LIRC, the court concluded that he achieved proper service.

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.