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Vol. 72, No. 9, September 1999 |
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Appellate Procedure | Civil
Procedure | Criminal Law |
| Criminal Law/Motor Vehicle Law | Criminal
Procedure |
| Family Law | Labor
Law | Municipal Law |
| Notice of Claims | Real
Property | Torts |
Appellate Procedure
Traffic Regulation Appeals from Circuit Court -
Time for Initiating Appeal
City of Sheboygan
v. Flores, No. 99-0954 (filed 30 June 1999) (ordered
published 21 July 1999)
In this case the court of appeals was asked to determine which
event triggers the appeal period in traffic regulation cases:
the disposition recorded in the circuit court docket entries
or the entry of a separate judgment or order in the office of
the clerk of circuit court.
In a per curiam decision the court of appeals concluded that
a disposition recorded in the docket entries triggers the appeal
period. See Wis. Stat. §
808.03(1).
Civil Procedure
Destruction of Evidence - Sanctions
Garfoot v. Fireman's
Fund Ins. Co., Nos. 98-1618 & 98-1662 (filed 10 June
1999) (ordered published 21 July 1999)
The plaintiff was injured when a gas heater exploded. The
trial judge later determined that the technician hired by the
plaintiff's engineer had disturbed evidence at the site
"that would have either proved or disproved [the plaintiff's]
claim that a leak in the piping system caused the explosion."
Based on this finding, the court dismissed a variety of claims
against the defendants.
The court of appeals, in a decision authored by Judge Vergeront,
reversed. The dismissal of claims as a sanction for destroying
evidence is appropriate only where "there was a conscious
attempt to affect the outcome of the litigation or a flagrant
knowing disregard of the judicial process." On this record,
the court of appeals refused to find that the attorney's
conduct was "egregious" enough to merit dismissal.
It also remanded the matter for a hearing on whether the attorney's
conduct was negligent and merited some sanction short of dismissal.
The court of appeals then addressed a series of issues likely
to arise on remand. First, on whether the attorney's behavior
should be imputed to the client, "the trial court is to
consider the client's failure to act in a reasonable and
prudent manner, and the client's knowledge of or complicity
in that conduct, in deciding whether to impute the attorney's
conduct to the client for purposes of a sanction." Second,
the actions by the technician and engineer, who were hired by
plaintiff's counsel, could be imputed to the plaintiff.
Third, it is not necessary that each of the persons acting on
the plaintiff's behalf (that is, the lawyer, the engineer,
and the technician) must have been negligent or engaged in egregious
behavior. Fourth, "prejudice" to a party caused by
the destruction of the evidence is a factor to be considered,
but prejudice is not a condition precedent for dismissal as a
sanction.
Summons and Complaint - Timely Filing
Granado v. Sentry
Insurance, No. 98-3675-FT (filed 15 June 1999) (ordered
published 21 July 1999)
The plaintiff was injured in a fall on June 18, 1995. Three
years later, on June 18, 1998, his lawyer called the county clerk
of court after the clerk's office had closed and made arrangements
to deliver the summons and complaint to the clerk at his home.
The plaintiff's lawyer hand-delivered the papers to the
clerk at 9:30 p.m. The clerk wrote, "Received: 6/18/98," and then signed and dated the complaint. The papers
were not stamped "filed" until the next day, June 19.
The circuit court dismissed the action because the summons and
complaint had not been filed until June 19, 1998, after the statute
of limitations had expired.
The court of appeals, in an opinion written by Judge Hoover,
affirmed. Addressing the powers of the clerk of court, the court
of appeals rejected the contention that clerks can "accept
papers only during usual business hours set by the county board."
But the court also rejected the plaintiff's contention that
"receipt by the clerk is synonymous with filing." Court
clerks are charged with the responsibility of "properly
depositing" legal papers. The court of appeals held that
"'properly deposited' means that the further removed
from an office's legislative guidelines and usual business
hours a transaction occurs, the less likely it is that the papers
have been properly deposited." Here the clerk "as a
matter of law exercised his discretion in a manner that impermissibly
surpassed the legislative strictures he was subject to."
Criminal Law
Controlled Substances - Drug Repeater Law -
Possession of Drug Paraphernalia as the Prior Conviction
State v. Moline,
No. 98-2716-CR (filed 23 June 1999) (ordered published 21 July
1999)
Possession of cocaine is a misdemeanor offense but, if the
defendant is a repeat drug offender, it is a felony. Wis. Stat.
section
961.48 defines the circumstances in which one is a drug repeater,
and the question in this case was whether a prior conviction
under Wisconsin law for possessing drug paraphernalia qualifies
as a prior drug offense that triggers the drug repeater.
In a decision authored by Judge Brown, the court of appeals
held that a prior conviction for possessing drug paraphernalia
pursuant to section 961.573 qualifies as a prior offense for
purposes of invoking the repeat drug offender statute.
Criminal Law/Motor Vehicle Law
Validity of Misdemeanor Conviction Before
Six-person Jury - OWI - Admissibility of HGN Test Results
State v. Zivcic,
Nos. 98-0909 and 98-1381 (filed 29 June 1999) (ordered published
21 July 1999)
The defendant was convicted of a misdemeanor OWI offense before
a six-person jury that was impaneled under Wis. Stat. section
756.096(3)(am). This statute, which provided for six-person
juries in misdemeanor actions, was subsequently ruled unconstitutional
by the Wisconsin Supreme Court. See State
v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).
The defendant did not object to the six-person jury, did not
request a 12-person jury, and did not raise an issue as to whether
the statute was unconstitutional.
The first issue considered by the court of appeals was whether
the defendant is entitled to a new trial with a 12-person jury.
In a decision authored by Judge Wedemeyer, the court of appeals
concluded that he was not. Though the Hansford ruling applies
to all cases "pending on direct review," relief is
limited to those who raised the issue before the trial court.
Because the defendant did not raise any objection to the six-person
jury, he is not entitled to a new trial with a 12-person jury.
This case also presented an issue of first impression regarding
the admissibility of the horizontal gaze nystagmus (HGN) test,
which is used to determine sobriety. The defendant urged that
the HGN test results were improperly admitted at his trial.
The court of appeals disagreed. It found that the trial court
did not erroneously exercise its discretion when it allowed the
deputy sheriff who administered the HGN test to offer expert
testimony on that test. The deputy testified that he was trained
in administering and evaluating the test. Thus, there was a reasonable
basis for the trial court to conclude that he was qualified to
offer expert opinion regarding the HGN test. Because there is
evidence to support the trial court's finding that the deputy
qualified as an expert, the court of appeals also rejected the
defendant's argument that there was an insufficient foundation
to admit the test results.
To the extent that the defendant argued that a second expert,
in addition to the law enforcement officer, was required to testify
before the HGN test results could be admitted, the court of appeals
disagreed. As long as the HGN test results are accompanied by
the testimony of a law enforcement officer who is properly trained
to administer and evaluate the tests, the mandates of the expert
testimony statute (Wis. Stat. section
907.02) are satisfied.
Criminal Procedure
Search and Seizure - Reasonable Expectation of Privacy
-
Burden of Proof
State v. Ramirez,
No. 98-0996-CR (filed 2 June 1999) (ordered published 21 July
1999)
The defendant was convicted of delivering and possessing a
controlled substance. Postal authorities had intercepted a package
of marijuana addressed to the defendant. They resealed the package
with a device that alerted them when someone opened the package.
The resealed package was delivered to the defendant. Later, police
executed an anticipatory search warrant. Following his conviction,
the defendant appealed the trial court's rulings on his
motions to suppress.
The court held that the defendant had the burden of establishing
"some reasonable expectation of privacy in the package."
The burden is, however, "minimal." The court of appeals
discussed the myriad factors that lower courts should examine
when assessing a privacy interest in a delivered package. It
rejected the defendant's proposed presumption of privacy
based on residence and several "alter ego" scenarios
advanced by the state. The issue was remanded for a new hearing
because the trial judge had applied an erroneous standard.
Conditions of Probation - Constitutional Challenges
to Probation Condition Restricting Association with Gang Members
State v. Lo,
No. 98-2490-CR (filed 27 May 1999) (ordered published 21 July
1999)
The defendant pled guilty to being a party to the crime of
aggravated battery with intent to cause substantial bodily harm,
as a gang-related offense. He was convicted and placed on probation.
A condition of probation was that he "have no contact with
gang members or be involved in any gang activities." On
appeal he claimed that this probation condition was unconstitutionally
vague and overbroad.
In a decision authored by Judge Eich, the court of appeals
affirmed. A probation condition must be sufficiently precise
for the probationer to know what conduct is required of him or
her. The parties agreed that the gang member/gang activity condition
of the defendant's probation may reasonably be read in light
of definitions found in criminal code sections dealing with gangs.
See Wis. Stat. §§ 939.22(9)
and (9g), and 941.38(1)(b).
Proceeding from this agreement the court of appeals concluded
that the statutory definitions of "criminal gang members,"
"criminal gang," and "criminal gang activity"
are sufficiently specific to provide the defendant with fair
and adequate notice as to his expected course of conduct while
on probation.
The court also concluded that the probation condition is not
overbroad. A reasonable interpretation of the condition is that
it requires that the defendant not have contact with individuals
whom he knows, or reasonably should know, are members of a gang.
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