Vol. 71, No. 9,
September 1998
Supreme Court Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Counties | Criminal Law |
Criminal Procedure | Employment Law |
| Environmental Law | Evidence | Highways | Jury Trials
| Juvenile Law |
| Municipal Law | Torts
| Worker's Compensation |
Counties
Liability for Injuries Caused by Insufficient
Highway Maintenance - County Immunity -
Wis. Stat. Section 81.15 - Definition of "Highway"
Morris v. Juneau County, No. 96-2507
(filed 30 June 1998)
Morris was injured when another vehicle traveling towards him hit a rut
on the shoulder of the road, lost control, and came back over the center
line striking his vehicle. Among others he sued Juneau County, alleging
that the collision occurred in part due to a highway defect resulting from
a want of maintenance or repair by the county. The county answered that
it was immune from the plaintiff's claims because the defects were based
on acts that the county performed in the exercise of its discretionary powers.
The county later filed a motion for summary judgment, which was granted
by the circuit court. The court of appeals subsequently reversed.
In a unanimous decision authored by Justice Bablitch, the supreme court
affirmed the court of appeals. The first issue considered by the court was
whether governmental immunity under Wis. Stat. section 893.80(4) applies
to a claim made under Wis. Stat. section 81.15. The latter statute provides
in pertinent part that the "claim for damages shall be against the
county" for "damages [that] happen by reason of the insufficiency
or want of repairs of a highway which any county ... is bound to keep in
repair." The supreme court concluded that if a plaintiff states an
actionable claim under section 81.15, the governmental immunity provisions
of section 893.80(4) do not apply.
The second issue addressed by the court was whether the term "highway,"
as used in section 81.15, includes the shoulder adjacent to the paved portion
of the highway. The court concluded that in the context of this statute
the term "highway" includes the shoulder of the highway.
Criminal
Law
Bail Jumping - Multiplicitous Charging
State v. Anderson, No. 96-0087
and 06-0088 (filed 2 July 1998)
The defendant was convicted of two counts of bail jumping. Prosecutors
alleged that he violated two separate conditions of the same bond; namely,
that he avoid contact with a named person and that he not consume alcohol.
The court of appeals reversed the convictions because they were multiplicitous.
The supreme court, in an opinion written by Justice Bablitch, reversed
the court of appeals. The court held that the violations of the different
conditions of bond were different in fact. Even if the drinking and the
illegal contact were not separate in time, the acts were very different
in nature. Each act required proof of a fact that the other did not (that
is, consuming alcohol versus contact with the battery victim). Moreover,
nothing rebutted the presumption that the Legislature intended multiple
punishments where different conditions of the same bond are violated. The
Legislature intended to protect different interests by permitting bonds
to embrace multiple conditions.
Justice Geske dissented, joined by Chief Justice Abrahamson and Justice
Bradley, stating, "This is a case where good facts make bad law."
Flag Desecration Statute - Overbreadth
State v. Janssen, No. 97-1316-CR
(filed 25 June 1998)
The supreme court, in an opinion written by Justice Wilcox, affirmed
the court of appeals' decision that the criminal statute proscribing "flag
desecration" was unconstitutionally overbroad and that its flaws could
not be cured by limiting constructions. Wis. Stat.§ 946.05.
Criminal
Procedure
Alford Pleas - Sex Offenders - Revocation of Probation
for Failing to Admit Guilt in Treatment Program -
Appointment of Counsel for Section 974.06 Proceedings
State ex rel. Warren v. Schwarz,
No. 96-2441
State v. Warren, No. 97-0851 (filed
1 July 1998)
The defendant was charged with two counts of sexual assault of a child.
Ultimately, the defendant entered an Alford plea to one of the counts
and the state agreed to dismiss the remaining count. [The Alford
plea finds its roots in North Carolina v. Alford, 400 U.S. 25 (1970),
where the defendant affirmatively protested his innocence, yet pled guilty
to a lesser degree of murder to avoid the death penalty he may otherwise
have received.] The circuit court imposed a five-year prison sentence, which
it stayed in favor of an eight-year term of probation. As a condition of
that probation, the court ordered that the defendant obey the rules of the
probation department and "that he attend any and all counseling that
is ordered by the department."
After being sentenced, the defendant served under probationary supervision
for approximately five years. During this time he participated in sex offender
treatment programs but he consistently and repeatedly denied any culpability
in his conviction for sexual assault of a child. Ultimately, the department
revoked his probation for failure to admit his guilt during counseling,
and it ordered the defendant to begin serving the five-year sentence imposed
by the trial court.
The first issue considered by the supreme court was whether the defendant's
right to due process was violated when the state, following his entry of
an Alford plea, later revoked his probation for failing to successfully
complete a sex offender treatment program that required him to admit his
guilt. Writing for a unanimous supreme court, Justice Wilcox concluded that
the defendant's right to due process was not violated by the revocation
of his probation. The court rejected the defendant's argument that acceptance
of an Alford plea necessarily contemplates that defendants will be
allowed to maintain their factual innocence, even while completing the terms
of probation that have been imposed upon them. A defendant's protestations
of innocence under an Alford plea extend only to the plea itself.
Whatever the reason for entering an Alford plea, the fact remains
that when defendants enter such a plea, they become convicted offenders
and are treated no differently than they would be had they gone to trial
and been convicted by a jury.
The supreme court next considered whether the circuit court's failure
to inform the defendant at the time of his Alford plea that he would
be required to admit his guilt during a sex offender treatment program rendered
that plea unknowing and involuntary in violation of his right to due process.
The court concluded that it was not. It is well established that in informing
defendants of their rights, courts are only required to notify them of the
"direct consequences" of their pleas. Defendants do not have a
due process right to be informed of consequences that are merely collateral
to their pleas. The court concluded that the circuit court was not required
to inform Warren that his probation could be revoked for failing to take
responsibility for his actions because it was only a collateral consequence
of his conviction.
Next the court considered whether the state breached the Alford
plea agreement and thereby violated the defendant's right to due process
when it revoked his probation solely on his continued assertion of innocence.
The court concluded that the defendant's argument on this point was based
upon the faulty premise that an Alford plea is a promise that the
defendant will never have to admit his guilt. Because an Alford plea
is not infused with any special promises, the state did not change its position
when it revoked his probation for failing to admit guilt during probationary
treatment. Because the state never promised or assured the defendant that
he would be able to maintain his innocence for purposes other than the plea
itself, the court concluded that the state did not breach its Alford
plea agreement when it revoked the defendant's probation.
In his final argument to the court, the defendant asserted that he was
denied his due process right to appointment of counsel for the section 974.06
postconviction proceedings in this case. The supreme court began its analysis
of this issue by noting the well-established principle that an indigent
defendant has a constitutional right to appointed counsel on his or her
first direct appeal of right from a conviction. The due process clause,
however, does not require appointment of counsel for discretionary appeals.
The defendant's postconviction relief pursuant to section 974.06 in this
case was not a direct appeal from a conviction. Rather, a section 974.06
proceeding is considered to be civil in nature and authorizes a collateral
attack on a defendant's conviction. Defendants do not have a constitutional
right to counsel when mounting collateral attacks upon their convictions,
such as the postconviction motion involved here. Appellate courts retain
the discretion to appoint counsel to an indigent defendant upon appeal from
a denial of a section 974.06 motion, but the court declined to exercise
such discretion in this case.
Finally, the court paused to once again call for heightened diligence
on the part of circuit courts in accepting Alford pleas - particularly
in cases involving sex offenses. The acceptance of Alford pleas is
entirely discretionary, and circuit courts should apply a critical eye toward
accepting such pleas. An inherent conflict arises when a charged sex offender
enters an Alford plea: The offender cannot maintain innocence under
the Alford plea and successfully complete the sex offender treatment
program, which requires the offender to admit guilt. The court strongly
advised circuit judges to give Alford-pleading defendants an instruction
at the time of the plea that their protestations of innocence extend only
to the plea itself, and do not serve as a guarantee that they cannot subsequently
be punished for violating the terms of their probation that require an admission
of guilt.
Hearsay - Prosecutor's Statements -
Defamation - Immunity - Perjury
State v. Cardenas-Hernandez, No.
96-3605-CR (filed 30 June 1998)
The supreme court, in an opinion written by Justice Steinmetz, affirmed
the defendant's conviction for two counts of perjury. There were two issues
before the court.
First, did the judge erroneously exclude evidence in the perjury trial
of statements made by a prosecutor during preliminary proceedings in a prior
drug case? The prosecutor's statements were not admissible as admissions
by a party opponent under section 908.01(4), particularly as statements
by a speaking agent or by a regular agent. An issue of first impression
in Wisconsin, the court turned to federal precedent that recognized that
attorneys, even government attorneys, can fall within the admissions exemption
under certain circumstances. The court rejected a per se prohibition on
the use of a prosecutor's prior statements and set forth the "guidelines"
that trial judges should weigh in evaluating the statements' admissibility.
On this record, the judge properly excluded the prosecutor's earlier statements.
(Although "factual assertions," the prosecutor's statements were
not "clearly inconsistent" with assertions made by the State at
the perjury trial.) The court also rejected several other hearsay theories
as well as the claim that the defendant was denied the right to present
a defense.
Second, the supreme court held that the "absolute civil privilege
for defamatory statements made in a judicial proceeding applies in a criminal
prosecution for defamation under Wis. Stat. sec. 942.01 when the statements
are perjurious as well as defamatory." For this reason, the supreme
court upheld the court of appeals' reversal of the defendant's criminal
defamation convictions. The convictions for perjury were, however, lawful
because the perjury statute does not except "otherwise privileged"
statements. Wis. Stat. § 946.31.
Employment
Law
Married Employees - Public Employers -
Health Insurance Limits
Motola v. LIRC, No. 97-0896 (filed
30 June 1998)
Connie went to work for the City of New Berlin in 1977 and was enrolled
for single health insurance coverage that met her own medical needs. In
1980 she married another city employee. In 1984 they requested family coverage.
Under the city's "nonduplication policy," Connie's health insurance
status was changed from that of a single coverage enrollee to that of a
"dependent" under the family coverage enrollment.
The issue before the supreme court concerned whether, under Braatz
v. LIRC (1993), any employer could limit its married employees' coverage
under one health insurance policy. The supreme court, in an opinion written
by Justice Geske, held that "a public employer, as defined in Wis.
Stat. sec. 40, and the regulations thereto, may limit its married co-employees
to coverage under one family health insurance policy of their marital status,"
and therefore the nonduplication policy did not violate the Wisconsin Fair
Employment Act (WFEA). The court interpreted the pertinent statutes as creating
an "implied exception" to WFEA's marital status discrimination
clause. The court declined to address the status of nonpublic employers.
Chief Justice Abrahamson dissented.
Environmental
Law
Statute of Limitations - Discovery Rule -
Solid Waste Law - Spills Law
State v. Chrysler Outboard Corp.,
No. 96-1158 (filed 19 June 1998)
The State brought an environmental enforcement action against the defendants
under the Solid Waste Law, Wis. Admin. Code RD 51.05-.06. The trial judge
dismissed the action because it had not been filed within the statute of
limitations. The judge also dismissed a claim against Chrysler Outboard
Corp. under the Spills Law, Wis. Stat. section 144.76(3)(1977), because
Chrysler's alleged dumping preceded the effective date of the Spills Law.
The court of appeals certified the case to the supreme court.
The supreme court, in an opinion written by Justice Wilcox, affirmed
in part and reversed in part. The court held "that the discovery rule
is not applicable to the State's environmental enforcement action under
the Solid Waste Law, and that the Spills Law is applicable in actions by
the State to compel remediation of, and to impose penalties for, hazardous
substance spills, which although initially caused in part by actions preceding
the statute's May 21, 1978 effective date, continue to discharge after that
date."
Justice Bablitch concurred in part and dissented in part, arguing that
the discovery rule should extend to enforcement actions under the Solid
Waste Law.
In a separate opinion Justice Geske, joined by Chief Justice Abrahamson
and Justice Bradley, joined the majority's holding regarding the Solid Waste
Law and concurred in the mandate permitting remediation under the Spills
Law. They dissented from that part of the opinion that permitted the State
to impose forfeitures for Spills Law violations because it violated the
ban against ex post facto punishment.
Public Trust Doctrine - Suits by Citizens Against
Private Parties Alleged to Have Been Inadequately
Regulated by the DNR
Gillen v. City of Neenah, No.
96-2470 (filed 2 July 1998)
This case involves portions of Little Lake Butte des Morts in Winnebago
County. In chapter 52, Laws of 1951, the Legislature granted right, title,
and interest into certain submerged land near the south shore of the lake
(referred to as the Legislative Lakebed Grant) to the City of Neenah for
a "public purpose." In 1995 Minergy Corporation sought a lease
from the city to construct and operate a commercial facility on approximately
five acres of the grant area. The facility would process paper sludge generated
by paper mills in the Fox Valley area into a glass aggregate product. The
Department of Natural Resources (DNR), the city of Neenah, Minergy Corporation
and another company signed a stipulation and settlement agreement which,
among other things, provided that the DNR asserted that the proposed Minergy
facility would be an impermissible public trust use and violate the Legislative
Lakebed Grant, relevant portions of Wis. Stat. chapter 30, and the public
trust doctrine as developed under Wisconsin law, but that regardless of
the foregoing, based on the historical development of the Grant Area, to
which the DNR failed to object, the DNR agreed that it would not pursue
enforcement action under its authority relating to the public trust laws.
The plaintiffs (who were private citizens as well as organizations) brought
suit challenging the legality of the Minergy lease. As it relates to this
appeal, the critical issue was whether the public trust doctrine enables
a citizen to directly sue a private party whom the citizen believes was
inadequately regulated by the Department of Natural Resources. This is the
question that was certified by the court of appeals to the supreme court.
In a per curiam opinion the court held that the plaintiffs could bring suit
under Wis. Stat. section 30.294 against the defendants to abate a public
nuisance.
The public trust doctrine recognizes that the state holds beds of navigable
waters in trust for all Wisconsin citizens. It enables the state, or any
person suing in the name of the state for the purpose of vindicating the
public trust, to assert a cause of action recognized by the existing law
of Wisconsin. Wis. Stat. chapter 30, enacted pursuant to the public trust
doctrine, governs navigable waters and navigation in Wisconsin. Section
30.294 provides that "every violation of this chapter [30] is declared
to be a public nuisance and may be prohibited by injunction and may be abated
by legal action brought by any person. " Thus, section 30.294 expressly
contemplates citizens' suits irrespective of the DNR's actions or enforcement
decisions.
Another issue in the case was whether plaintiffs were barred from bringing
a claim under section 30.294 because they failed to comply with the notice
of claims statute. Section 893.80(1)(b) prevents a plaintiff from bringing
a cause of action against a governmental body unless the plaintiff provides
to the governmental body a notice of claim. However, the court concluded
that the failure to comply with the notice of claim statute in this case
did not bar the plaintiffs' claims brought in accord with section 30.294.
Section 30.294 expressly allows a plaintiff to seek immediate injunctive
relief to prevent injury. The enforcement procedures provided in this statute
are inconsistent with the notice of claims law, which requires a plaintiff
to provide a governmental body with a notice of claim and to wait 120 days
or until the claim is disallowed before filing an action. Said the court,
"we conclude that there is an exception to Wis. Stat. sec. 893.80(1)(b)
where the plaintiffs' claims are brought pursuant to the public trust doctrine
under Wis. Stat. sec. 30.294, which provides injunctive relief as a specific
enforcement remedy. " Chief Justice Abrahamson filed a concurring opinion
that was joined by justices Geske and Bradley.
Evidence/Criminal
Procedure
Character Evidence - Evidence of Witness's Character
for Truthfulness - Rule of Completeness - Prosecutor's Duties
When Defense Seeks to Interview State's Witness
State v. Eugenio, No. 96-1394-CR
(filed 25 June 1998)
The defendant was charged with one count of "first-degree sexual
assault of a child" and one count of "threats to injure."
The charges arose from an incident four years earlier in which the defendant
allegedly sexually abused a 6-year-old child and then threatened to kill
her if she told anyone.
As part of the pretrial investigation, the defendant's attorneys asked
the victim's mother to allow the child to speak with a defense investigator.
The victim's mother contacted the district attorney's office, which arranged
for the meeting to occur in that office. At the scheduled meeting between
the investigator and the child, an assistant district attorney neither actively
encouraged cooperation with the defense nor discouraged such cooperation.
She advised the victim's mother that the defense investigator was present
to elicit information from the child for later use in court. The mother
subsequently refused to allow her child to be questioned by the investigator,
concluding that the investigator's purpose was to "mess up" her
daughter. The defendant asked the circuit court to dismiss the case, asserting
prosecutorial misconduct because the district attorney had a duty to encourage
the victim's cooperation with the defense investigation. The circuit court
denied the motion.
At trial, the defense used its opening statement to highlight inconsistencies
in the victim's statements and to explain the defense theory that the victim
made those statements to get attention. The defense continued this concentration
on inconsistencies during its cross-examination of the victim.
Considering defense counsel's assertions at opening statements to be
an attack on the victim's character, the circuit court allowed the state
to rehabilitate the victim's character by offering the testimony of the
victim's school counselor, who testified that in her opinion the victim
was a truthful individual. Based on the rule of completeness, the circuit
court also admitted the highlighted inconsistent statements in their entirety.
The jury convicted the defendant on the sexual assault count. The court
of appeals affirmed. The supreme court, in a unanimous decision authored
by Justice Bradley, affirmed the court of appeals.
The first challenge to the conviction involved the circuit court's admission
of character testimony offered by the state to rehabilitate the truthfulness
of the victim. Wis. Stat. section 906.08(1) will allow a witness's penchant
for truthfulness to be the topic of rehabilitative evidence only when "the
character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise." In this case the supreme court concluded
that where an attorney attacks the character for truthfulness of a potential
witness in an opening statement, testimony presented to rehabilitate that
witness may be appropriate. But this is true only when there has truly been
an attack on character. Character is evidenced by a pattern of behavior
or method of conduct demonstrated by an individual over the course of time.
Thus, allegations of a single instance of falsehood cannot imply a character
for untruthfulness just as demonstration of a single instance of truthfulness
cannot imply the character trait of veracity. Viewing the attack on a witness
in its context, the circuit court must believe that a reasonable person
would consider the attack on the witness to be an assertion that the witness
is not only lying in this instance, but is a liar generally. Only in such
circumstances will rehabilitative evidence be appropriate.
The determination of whether the character of truthfulness of a witness
is being challenged is a matter left to the proper discretion of the circuit
court. The circuit court here determined that the victim's character for
truthfulness was under attack through assertions that the victim repeatedly
lied to gain attention. Like the court of appeals, the supreme court concluded
that this determination was not an erroneous exercise of discretion.
The court next considered the cross-examination of the victim by the
defense where there was extensive questioning about perceived inconsistencies
in the victim's statements to other individuals about the abuse. In response,
the circuit court permitted the state to offer the challenged statements
in their entirety to show consistency on significant factual issues. The
circuit court based its admission of the statements on the rule of completeness.
The rule of completeness as codified in Wis. Stat. section 901.07 applies
to written and recorded statements. In this case, the real question debated
by the parties was whether any form of the common law rule of completeness,
which included oral statements, survived codification of section 901.07.
The supreme court concluded that the rule of completeness, as it has historically
applied to oral statements under the common law, is encompassed within the
bounds of the codified Wisconsin Rules of Evidence.
Section 906.11 provides that the judge shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting evidence
so as to make the interrogation and presentation effective for the ascertainment
of the truth, avoid needless consumption of time, and protect witnesses
from harassment or undue embarrassment. The court concluded that this statute
encompasses the rule of completeness for oral statements. The rule of completeness,
however, should not be viewed as an unbridled opportunity to open the door
to otherwise inadmissible evidence. Under the rule the court has discretion
to admit only those statements that are necessary to provide context and
prevent distortion. In this case the circuit court did not err in exercising
its discretion to admit the additional statements under the rule of completeness.
Finally, the court addressed the defendant's contention that the circuit
court should have dismissed his case based on prosecutorial misconduct as
described above. The court concluded that there was no prosecutorial misconduct
by the assistant district attorney in this case. While prosecutors may not
discourage witnesses from cooperating with the defense, they also are not
under an affirmative legal duty to encourage such cooperation.
Next Page
|