Supreme Court Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Editor's Note: Each case summarized in the Supreme
Court Digest includes its new public domain citation.
| Civil Procedure | Family
Law |
| Insurance | Torts
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Civil Procedure
Remands - Substitutions - Supervisory Writs -
Chief Judge's Review
State ex rel. J. H. Findorff
& Son Inc., 2000 WI 30 (filed 6 April 2000)
In an earlier action the court of appeals reversed and remanded
a circuit court decision against the petitioner relating to a
breach of contract. On remand, the petitioner requested a judicial
substitution, the trial judge granted the request, but the chief
judge later denied the request on review. The petitioner then
asked the court of appeals to issue a supervisory writ of mandamus,
which it refused to do because the "original directives
on remand required 'specific action,' and therefore,
the right of substitution did not attach."
The supreme court, in a decision written by Justice Crooks,
reversed. The original directives on remand called for "'further
proceedings' that required the circuit court to exercise
its discretion," not merely discharge a ministerial duty.
The supreme court also held "that the chief judge was without
authority to review and reverse the circuit court judge's
decision" granting the substitution request. Wisconsin statutes
and court rules provide that a chief judge may only review orders
denying substitution, not those granting the request.
Chief Justice Abrahamson, joined by Justice Bradley, concurred
but wrote separately to strongly suggest that the supreme court
and the court of appeals expressly address the right to substitution
in any decision mandating a remand.
Justices Wilcox and Bradley (also joined by the Chief Justice)
each filed separate concurring opinions. Justice Wilcox expressed
concern about the scope of the phrase "specific action"
and whether the court's decision will result in "more
liberal substitution of judges in civil actions on remand"
(¶ 39). Justice Bradley concluded that "the majority
misconstrues and misapplies prior cases, and precludes the circuit
court from exercising even a scintilla of discretion" (¶
49).
Family Law
PR - Statutory Notice - Testimony Required
Waukesha County v. Steven H.,
2000 WI 28 (filed 24 March 2000)
A circuit court terminated the parental rights of Steven H.
to his daughter Brittany. The court of appeals reversed because
some of the orders removing Brittany from her home failed to
include the written notice required by section
48.356(2) of the Wisconsin Statutes (1997-98).
The supreme court, in a decision written by Chief Justice
Abrahamson, reversed. Two issues were before the court. First,
did sections
48.356(2) and 48.415(2) "require each and every order
placing a child outside his or her home contain the written notice
prescribed by sec.
48.356(2) in order for the termination of parental rights
to proceed?" The court held that the statutes do not require
that "each and every order removing a child from his or
her home contain the written notice prescribed by sec.
48.356(2)." Rather, the statutes "require that
the last order specified in sec.
48.356(2) placing a child outside the home, which must be
issued at least six months before the filing of the petition
to terminate parental rights, must contain the written notice
required by sec.
48.356(2)." This construction ensures timely notice
and "does not vitiate a termination of parental rights proceeding
when one or more previous orders fails to contain the statutorily
prescribed written notice." The court cautioned, however,
that "the better practice" is to include the statutorily
required written notice in all orders to which the statute applies.
Second, the circuit court violated section
48.356(2) when it failed to hear testimony in support of
the petition's allegations. Nevertheless, the supreme court
reviewed the entire record and concluded that under the totality
of the circumstances Steven H. was not prejudiced by the error.
Among the factors considered was that Steven H. voluntarily and
knowingly waived his right to contest the fact-finding hearing
and the testimony by one of his attorneys that Steven H. understood
the facts alleged in the petition. The statutes nevertheless
require the court to hear testimony in support of the petition's
allegations.
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