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Vol. 73, No. 7, July 2000 |
Supreme Court Digest
by Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
Note: Each case summarized in the Supreme Court Digest
includes its new public domain citation.
| Appellate Procedure | Criminal
Procedure |
| Family Law | Insurance
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| Lemon Law | Prioner
Litigation |
Appellate Procedure
Intervention - Timeliness of Motion to Intervene
City of Madison v. Wisconsin
Employment Relations Commission, 2000 WI 39 (filed 12
May 2000)
The Madison Police and Fire Commission sought to intervene
in an appeal before the court of appeals in a lawsuit between
the city and the Wisconsin Employment Relations Commission. The
Police and Fire Commission was not involved as a party in this
litigation. The issue before the supreme court was whether a
nonparty to a circuit court action may intervene in an appeal
brought by another party, even after the time for filing a notice
of appeal has passed.
In a unanimous decision authored by Justice Crooks, the supreme
court concluded that under Wis. Stat. section
(Rule) 803.09, a nonparty to a circuit court action may intervene
in an appeal brought by another party, even after the time for
filing notice of appeal has passed. While the Police and Fire
Commission failed to intervene in this case within the statutory
time period to appeal, an intervenor such as the commission does
not have to file a motion to intervene within a statutorily set
time period.
Timeliness - Jurisdiction - Facsimile Filings -
Notice of Appeal
State v. Sorenson,
2000 WI 43 (filed 26 May 2000)
Sorenson was committed by the circuit court as a sexually
violent person under chapter
980 of the Wisconsin Statutes. On the last calendar day permitted
for filing a notice to appeal, Sorenson transmitted the notice
via a facsimile machine to the office of the clerk of the circuit
court. He also mailed an original copy of the notice to the clerk's
office, which received the mailed copy one day after the filing
deadline. The court of appeals held that it lacked jurisdiction
to hear Sorenson's appeal based on the untimely filing.
The supreme court, in an opinion written by Justice Prosser,
reversed. The supreme court addressed one central issue: Does
section
801.16(2), which provides that "papers that do not require
a filing fee" may be filed by facsimile transmission, permit
indigent persons to file a notice of appeal by facsimile? The
court held that "a notice of appeal may be filed by facsimile
transmission because a notice of appeal is not a paper that requires
a filing fee to confer jurisdiction." Thus, the court of
appeals obtained jurisdiction when the circuit court clerk received
Sorenson's "facsimiled" notice of appeal. Payment
of the filing fee - which did not accompany the facsimiled
notice - is not a jurisdictional requirement (¶ 18).
Nor was the holding limited to indigent filers, like Sorenson.
Rather, the court held that "all appellants, irrespective
of financial status, should be permitted to file notices of appeal
by facsimile transmission" (¶ 28). The court overruled
inconsistent precedent.
Criminal Procedure
Terry Stops - Frisks for Weapons - Opening
Containers
State v. McGill, 2000
WI 38 (filed 12 May 2000)
This case concerns the admissibility of evidence seized during
a stop-and-frisk encounter with the defendant. After stopping
the defendant for a traffic violation, the officer conducted
a frisk for weapons, during which a hard object that the officer
thought might be a knife was felt. Upon removing the object,
the officer discovered that it was not a knife but rather an
object wrapped in aluminum foil. The package was opened and cocaine
was found therein.
There was no issue in the case about the validity of the initial
stop of the defendant. He had committed a traffic violation.
With regard to the frisk of his person, the supreme court, in
a majority decision authored by Justice Sykes, concluded that
the officer had a reasonable suspicion that the defendant was
armed. In making this assessment, a court may look to any fact
in the record, as long as it was known to the officer at the
time he or she conducted the frisk. The court is not restricted
in its reasonableness analysis to the factors the officer testifies
to having subjectively weighed in his or her ultimate decision
to conduct the frisk.
In this case the officer found himself alone at night in a
dark driveway with a suspect who was demonstrating unusual behavior.
The suspect had failed to promptly stop his vehicle and he had
attempted to walk away after the stop to avoid the encounter
with the officer. He demonstrated nervousness beyond that exhibited
by most traffic suspects. Further, the suspect smelled of both
drugs and alcohol. On these facts the supreme court concluded
that a reasonably prudent officer would be warranted in the belief
that the suspect may be armed and presently dangerous. Accordingly,
the protective frisk was reasonable.
The court next considered whether the officer exceeded the
limited scope of the Terry frisk when he removed the foil-wrapped
package of cocaine from the suspect's pocket and opened
it. Protective frisks must be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other
hidden instruments that may be used to assault the officer. In
this case, the size, shape, and feel of the hard object in the
defendant's pocket were consistent with it being a pocket
knife. Although the object turned out to be packaged cocaine,
the officer testified that it was so compacted that it felt like
a hard, solid object. The fact that, in this case, the officer
handcuffed the defendant before removing the object did not render
the frisk illegal.
Finally, the court considered the validity of the officer's
opening the aluminum foil package after it was apparent that
it did not contain a knife. The court concluded that an officer
may inspect an object seized in a Terry frisk when it is immediately
apparent that the object is or contains contraband. Here, the
court thought the evidence sufficient to support a finding that
the officer had probable cause to believe that the package contained
evidence of a crime - in this case, drugs. The officer testified
that the object was a plastic baggie with aluminum foil wrap
and that he knew illegal drugs were packaged in this way. Further,
he smelled intoxicants and the odor of marijuana on the defendant.
The defendant kept reaching for the pocket with the package in
it during the course of the frisk (before he was handcuffed),
and he misled the officer about the contents of the package.
Under these circumstances, said the court, there was probable
cause to open and inspect the foil-wrapped package that had been
lawfully seized from the defendant's pocket.
Chief Justice Abrahamson filed a dissenting opinion.
Family Law
Termination of Parental Rights - Best Interests of the
Child Analysis - Wis. Stat. Section 48.426 Factors
State v. Margaret H.,
2000 WI 42 (filed16 May 2000)
This case concerns the termination of parental rights and
the factors a court must consider in making a TPR decision.
The proper legal standard governing a proceeding to terminate
parental rights is the best interests of the child. See Wis.
Stat. §
48.426(2). The factors that give contour to the standard
are codified in section
48.426(3) and serve to guide courts in gauging whether termination
is the appropriate disposition. While it is within the province
of the circuit court to determine where the best interests of
the child lie, the record should reflect adequate consideration
of and weight to each of the statutory factors.
Of particular concern in this case is the statutory factor
articulated at section
48.426(3)(c): "Whether the child has substantial relationships
with the parent or other family members, and whether it would
be harmful to the child to sever these relationships." Under
this subsection, the circuit court must evaluate the existence
of "substantial relationships" between a child and
the child's family, and then gauge whether the child will
suffer harm from a severance of those relationships. [As a matter
of law, the termination of parental rights results in a legal
severance of the relationship between a child and the child's
family.]
In a unanimous decision authored by Justice Bradley, the supreme
court interpreted the statute quoted above to unambiguously require
that a circuit court evaluate the effect of a legal severance
on the broader relationships existing between a child and the
child's birth family. These relationships encompass emotional
and psychological bonds fostered between the child and the family.
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