Vol. 71, No. 7,
July 1998
Supreme Court Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Civil Procedure | Criminal Law
| Criminal Procedure |
| Insurance | Motor Vehicle
Law | Municipal Law |
| Paternity | Public
Records |
Civil
Procedure
Time Limits - Discovery Rule
- Actions Against Land Surveyors
Tomczak v. Bailey, No. 95-2733
(filed 22 May 1998)
In 1988 Bailey surveyed various tracts of land on behalf of his employer,
American Surveying Co. Eventually, people bought the land and built on the
lots. In June 1994 it came to light that lots 96 and 97, as marked by Bailey,
were "actually the boundaries of lots 97 and 98 of the unrecorded plat."
Plaintiffs sued the defendant property owners who had relied upon Bailey's
erroneous survey for trespass and encroachment. The defendants in turn sued
Bailey and American for negligence. Bailey and American moved for summary
judgment on the ground that the claim was time barred under Wis. Stat. section
893.37. Both the trial judge and the court of appeals rejected this argument
based on the discovery rule set forth in Hansen v. A.H. Robins Inc.,
335 N.W.2d 578 (1983).
The supreme court, in an opinion written by Justice Wilcox, reversed.
The court first held that section 893.37 is a statute of repose and that
the Hansen rule did not apply. In adopting section 893.37 the Legislature
considered "the inequity of a time limitation period that commences
prior to discovery, and yet determined that claims against surveyors will
be barred six years after the survey has been completed, regardless of when
the injury is discovered." This conclusion was supported by the statute's
plain language and the legislative history. Nor did Hansen require
"that all time limitations periods be based upon the discovery rule";
a contrary ruling would simply substitute the court's vision of sound public
policy in place of the Legislature's. Finally, for these reasons the supreme
court overruled H.A. Freitag & Son Inc. v. Bush, 447 N.W.2d 71
(Ct. App. 1989).
The court also rejected the plaintiffs' contention that section 893.37
violated the equal protection clauses of the state and federal constitutions.
A rational basis distinguished the treatment of land surveyors from other
potentially liable parties, such as property owners. Adverse possession
"provides inherent protection for the landowner who may be sued for
reliance on an erroneous survey." Section 893.37 provides similar protection
for surveyors, without which their liability "would be perpetual."
The plaintiffs also claimed that the negligent survey constituted a "continuing
tort," but the court held that the six-year period began to run when
Bailey signed and dated the survey in August 1988. Thus the 1995 action
was untimely.
Separate concurring opinions were filed by Justices Steinmetz, Geske,
and Crooks.
Chief Justice Abrahamson, joined by Justice Bradley, dissented because
"the majority opinion's discussion of the Hansen discovery rule
is internally inconsistent and the holding is irreconcilable with the court's
prior cases relating to the application of the discovery rule, statutes
of repose, and Wisconsin Constitution Article I, section 9, which provides
that 'every person is entitled to a certain remedy in the laws for all injuries,
or wrongs which he may receive.'"
Criminal
Law
Unlawful Arrest - Common Law Right
to Forcibly Resist an Unlawful Arrest
State v. Hobson, No. 96-0914-CR
(filed 27 May 1998)
This appeal was before the Wisconsin Supreme Court on certification from
the court of appeals. The certified question was whether Wisconsin recognizes
a common law right to forcibly resist an unlawful arrest.
In a majority decision authored by Justice Geske, the court concluded
that this state has recognized a common law privilege to forcibly resist
an unlawful arrest in the absence of unreasonable force since the time of
statehood. This privilege, the court noted, is separate and distinct from
the statutory privilege of self-defense codified in Wis. Stat. section 939.48.
Despite the long existence of the common law privilege, the court concluded
that, based upon public policy, that right ought to be abrogated at this
time. Societal conditions in which the privilege arose no longer exist and
there are now safeguards and opportunities for redress by those subjected
to unlawful arrest. Given these changes and the opportunity for civilized
redress, the overall trend throughout the United States has been toward
abrogation of the common law right to resist an unlawful arrest. Eleven
states have judicially abrogated the common law right to use physical force
to resist an arrest that is unlawful but which does not use unreasonable
force. Seventeen other states have signaled their agreement by legislatively
abrogating the common law defense. In sum, said the court, the majority
of jurisdictions has concluded that violent self-help is antisocial and
unacceptably dangerous. "We agree that there should be no right to
forcibly resist an unlawful arrest in the absence of unreasonable force.
When persons resist arrest, they endanger themselves, the arresting officers,
and bystanders. Although we are sympathetic to the temporary deprivation
of liberty the individual may suffer, the law permits only a civilized form
of recourse. ... Justice can and must be had in the courts, not in the streets."
Finally, the court needed to decide whether its abrogation of the common
law defense should be applied in this case. It concluded that it should
not because its decision should be given prospective application
only.
Chief Justice Abrahamson filed a concurring opinion as did Justice Bablitch.
Justice Bradley joined Justice Bablitch's concurrence. Justice Geske, joined
by justices Steinmetz and Wilcox, filed a concurrence for the purpose of
addressing the concurrence submitted by Chief Justice Abrahamson.
Double Jeopardy - Prosecution for Misdemeanor
Battery Following Acquittal of Felony Battery
State v. Vassos, No. 97-0938-CR
(filed 27 May 1998)
The defendant was tried and acquitted by a jury of the crime of substantial
felony battery contrary to Wis. Stat. section 940.19(3). This statute prohibits
causing substantial bodily harm to another by an act done with intent to
cause substantial bodily harm to that person or another. Thereafter the
district attorney charged the defendant with misdemeanor battery contrary
to Wis. Stat. section 940.19(1) based on the same incident upon which the
felony battery prosecution had been premised. The misdemeanor battery statute
prohibits causing bodily harm to another by an act done with intent to cause
bodily harm to that person or another without the consent of the person
so harmed.
The defendant moved to dismiss the misdemeanor battery charge on double
jeopardy grounds and the circuit court granted the motion. The state appealed
to the court of appeals which certified the case to the Wisconsin Supreme
Court. In a decision authored by Chief Justice Abrahamson, the supreme court
reversed the circuit court.
The supreme court first considered whether the prosecution for misdemeanor
battery following the defendant's acquittal of felony battery violates Wisconsin's
Statutes. In particular, the court considered the impact of Wis. Stat. sections
939.71 and 939.66. Section 939.71 prohibits a successive prosecution for
a crime after a conviction or acquittal on the merits unless each statute
setting forth the substantive crime "requires proof of a fact for conviction
which the other does not require." Analyzing the elements of the two
batteries at issue in this case, the court concluded that each does require
proof of a fact for conviction which the other does not require and thus
section 939.71 does not prohibit successive prosecutions.
The court reached the same result by analyzing Wis. Stat. section 939.66,
which is the statute prohibiting conviction of both a greater inclusive
crime and any lesser included crimes. Section 939.66(1) prohibits multiple
convictions for a greater inclusive and a lesser included crime as those
are determined by the "same elements" test. As indicated above,
the two batteries at issue in this case have different element structures.
Section 939.66(2m) prohibits a conviction for a less serious or equally
serious type of battery in addition to the more serious type of battery
that is charged. The court concluded that while this statute would prohibit
multiple convictions for both the charged battery and another battery
that is less serious or equally serious, this statute does not apply to
a prosecution for misdemeanor battery following acquittal of felony
battery.
The court also considered whether the prosecution of the defendant for
misdemeanor battery following acquittal of the felony battery violated the
Double Jeopardy Clauses of the federal and Wisconsin constitutions. Contemporary
double jeopardy analysis uses the "same elements" test described
above and, because the felony battery and misdemeanor battery have different
element structures, with each requiring proof of at least one element which
the other does not, the "same elements" test does not bar the
misdemeanor prosecution.
Nevertheless, an acquittal in the first prosecution may bar subsequent
prosecution under the collateral estoppel doctrine developed in Ashe
v. Swenson, 397 U.S. 436 (1970). According to this doctrine an issue
of ultimate fact that is determined by a valid and full judgment cannot
again be litigated between the same parties in a subsequent lawsuit. When
there has been a previous judgment of acquittal based upon a general verdict,
the trial court in a subsequent prosecution must "examine the record
of a prior proceeding, taking into account the pleadings, the evidence,
charge, and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration." The burden is on
the accused to demonstrate that the issue about which he or she seeks to
foreclose relitigation actually was decided in the first proceeding.
In this case, the supreme court remanded the matter to the circuit court
to determine whether the prosecution for misdemeanor battery is barred under
the Ashe collateral estoppel test.
Justice Bradley wrote a concurring opinion to indicate that, although
the majority opinion properly interprets the statutes and correctly applies
existing double jeopardy jurisprudence, it results in the "hollow protection
of a fundamental constitutional right" under the Double Jeopardy Clause.
Chief Justice Abrahamson and justices Steinmetz and Geske joined the concurrence
Criminal
Procedure
Search and Seizure - Consent Searches
- Voluntariness - Search Following Unlawful Entry of Premises
State v. Phillips, No. 95-2912-CR
(filed 22 May 1998)
Three narcotics agents went to the defendant's home to follow up on information
from a confidential informant that the defendant was involved in the sale
of marijuana. They went there to pursue what was described as a "knock
and talk" encounter and did so without a search warrant.
Upon arrival the agents saw the defendant descend an exterior stairwell
of the premises to what they believed to be a cellar. After calling out
the defendant's name, the agents descended the stairwell and entered the
basement through an open door. Upon arrival in the basement the agents identified
themselves, articulated the purpose of their visit, and admitted that they
did not have a warrant to search the premises. The state conceded that the
officers did not have the defendant's permission to enter the basement.
Following the discussion summarized above, the defendant admitted that
he had drug paraphernalia and marijuana in his bedroom, which was located
in the basement but behind a closed door. One of the agents asked the defendant
if the officers could enter the bedroom and collect the marijuana and any
drug paraphernalia. The defendant responded by opening the door to his bedroom
and walking inside. The agents followed him into the bedroom but admitted
that the defendant had not given them express verbal permission to do so.
Inside the bedroom marijuana and drug paraphernalia were seized. Thereafter
the agents departed without arresting the defendant that day.
In a subsequent prosecution the defendant moved to suppress the evidence
seized in the warrantless search. He argued that the search violated his
rights under the Fourth Amendment to the U.S. Constitution and its counterpart
in the Wisconsin Constitution. The circuit court denied the motion, the
defendant was convicted, and he took an appeal to the court of appeals which
reversed the circuit court. The court of appeals concluded that the evidence
seized during the search should have been excluded because the consent given
by the defendant to search his bedroom was not so attenuated as to purge
the taint from the agents' initial unlawful entry into the home. The supreme
court, in a majority decision authored by Justice Steinmetz, reversed the
court of appeals.
The first issue before the supreme court was whether an appellate court
should independently review a circuit court's finding on the voluntariness
of a defendant's consent to search, or must the appellate court give deference
to the circuit court's determination. The supreme court concluded that voluntariness
of consent is a question of constitutional fact. The appellate court will
not upset the circuit court's finding of evidentiary or historical fact
unless those findings are contrary to the great weight and clear preponderance
of the evidence. However, the appellate court will independently apply constitutional
principles to the facts as found, to determine whether the standard of voluntariness
has been met.
The court next considered the substantive issue of whether the defendant
voluntarily consented to the warrantless search of his bedroom, and concluded
that his conduct provided a sufficient basis on which to find that he consented
to the search. It also concluded that the state met its burden of proving
that the consent was voluntary and was not the product of duress or coercion.
The agents did not use any misrepresentation, deception, or trickery to
entice the defendant to give his consent, but on the contrary identified
themselves and fully informed the defendant of the reasons for their presence
at his home and for their request to search his bedroom. The defendant knew
that the agents did not have a warrant and there was no credible evidence
that the agents threatened, physically intimidated, or in any way punished
the defendant. Weapons were not brandished and the defendant was not placed
in handcuffs; further the defendant was not arrested during or after the
search. In sum, the search was conducted under generally nonthreatening,
cooperative conditions and the defendant never objected to the agents' presence
in his home. Given these facts and the defendant's personal characteristics
(including age, intelligence, and past experience with the criminal justice
system), the court concluded that the defendant's consent to the search
of his bedroom was voluntary.
Finally, the court considered whether the evidence seized should be excluded
because it was seized as a result of the agents' exploiting their original
unlawful entry into the basement. More specifically, the issue was whether
the discovery of the evidence occurred as a result of exploiting illegal
entry or was sufficiently attenuated so as to dissipate the taint caused
by that entry. Though only a few minutes elapsed between the time of the
entry and the consensual search, the nonthreatening, noncustodial conditions
surrounding the search leaned toward a finding that any taint created by
the unlawful entry had dissipated when the defendant consented to the search.
Further, the court found that the conversation between the agents and
the defendant described above, which occurred before the search of the bedroom,
was an important intervening circumstance supporting a finding that the
agents did not exploit their unlawful entry into the defendant's home. The
court considered the purpose and flagrancy of the officers' conduct and
concluded that it did not rise to the level of conscious or flagrant misconduct
requiring exclusion of evidence discovered during the consensual search.
Justice Bradley filed a dissenting opinion that was joined by Chief Justice
Abrahamson and Justice Bablitch.
Search and Seizure - Third-party Consent Searches
- Actual Authority - Apparent Authority
State v. Kieffer, No. 96-0008-CR
(filed 12 May 1998)
Police received information that an individual, John Zattera, was in
possession of psilocybin mushrooms, a controlled substance. They also were
given an address identified as the Garlock residence, where Zattera was
staying. The police went to that address in search of Zattera. When they
arrived, they initially spoke to Mr. Garlock, who identified himself as
the owner of the property. Garlock told the officers that his daughter and
son-in-law, Dawn and John Kieffer, lived in a converted loft above a garage
building on the property and that Zattera was staying with them.
The officers asked Garlock whether the Kieffers paid rent. Garlock replied
that sometimes they helped pay for utilities but there was no lease agreement.
Garlock readily consented to let the police search anywhere on the premises
because he "didn't want any drugs on his property." Garlock led
the officers to the garage and opened the outside garage door, which was
unlocked. Garlock then led the officers up the interior stairs to the Kieffers'
living quarters. At the top of the stairs was a door with a lock; however,
it was unlocked at the time. Garlock told the police that, before entering,
he usually knocked "out of respect." At the suppression hearing
Garlock testified that, in this instance, he didn't knock but simply opened
the door and walked into the loft, followed by the officers. A subsequent
search of the premises led to the discovery of psilocybin mushrooms. Though
both John and Dawn Kieffer were present, the officers did not ask for their
permission to search their living quarters. In fact, Dawn immediately asked
whether the officers had a search warrant.
In a controlled substance prosecution, defendant John Kieffer moved to
suppress the evidence obtained during the warrantless search described above;
the circuit court denied the motion, but the court of appeals reversed.
The supreme court, in a majority decision authored by Justice Geske, affirmed
the court of appeals.
The first issue considered by the court was whether Mr. Garlock, the
defendant's father-in-law, had actual authority to consent to a search
of the loft area above his garage where the defendant and his wife were
living. On the facts as described above, the court concluded that it is
not reasonable to find that Garlock had the right to permit inspection of
the Kieffers' living area in the loft, nor is it reasonable to conclude
that the defendant had assumed the risk that his father-in-law and landlord
might permit the loft area to be searched. The relationship of Garlock to
the loft premises was insufficient to constitute actual common authority
to consent to a search of the Kieffers' living area.
Next, the court considered whether the police could reasonably rely upon
Garlock's apparent authority to consent to a search of the defendant's
living quarters in the loft. The U.S. Supreme Court has recognized that
even if a third party lacks actual common authority to consent to a search
of the defendant's residence, police may rely upon the third party's apparent
common authority to do so, if that reliance is reasonable. See Illinois
v. Rodriguez, 497 U.S. 177 (1990). The Rodriguez court cautioned
that officers may not always take third-party consent to a search at face
value, but must consider the surrounding circumstances. That consideration
often demands further inquiry.
In this case the court concluded that the information known to the police
at the time of the search was inadequate to support a reasonable belief
that Garlock had apparent authority to consent. The police should have made
further inquiry into the sufficiency of Garlock's relationship to the loft
premises. For example, the officers could have asked whether the Kieffers
had the right to exclude others from entry into the loft area, whether it
was Garlock's normal practice to enter and exit the loft area whenever he
felt like it, whether Garlock considered himself to be the Kieffers' "landlord,"
whether the loft had a lock on the door and whether Garlock had a key to
it, whether Garlock made personal use of the loft area himself, and so on.
In concluding that the police lacked a reasonable basis to believe that
Garlock possessed apparent authority to consent to a search of the defendant's
living area, the court observed that in Wisconsin there is no presumption
of common authority to consent to a search when an adult defendant lives
with his or her spouse's parents or close relatives.
Justice Wilcox filed a dissenting opinion that was joined by justices
Steinmetz and Crooks.
Insurance
Territorial Exclusion - UM Coverage
Clark v. American Family Mutual Ins. Co.,
No. 97-0970 (filed 21 May 1998)
Clark was injured on an island off the coast of Greece when the brakes
on his moped failed. He had rented the moped "from an uninsured Greek
citizen." Clark sued his insurer to secure payment under the policy's
uninsured motorist coverage. The insurer, American Family, argued that the
policy's territorial exclusion eliminated coverage for the claim. The trial
judge ruled that the territorial exclusion did not apply to uninsured motorist
coverage under Wis. Stat. section 632.32 (1989-90). A jury found the Greek
citizen 56 percent contributorily negligent and Clark 35 percent negligent.
American Family appealed and the court of appeals certified the issue to
the supreme court.
The supreme court, in an opinion written by Justice Bablitch, reversed
the judgment in Clark's favor. Nothing on the face of section 632.32(6)
precluded a territorial exclusion for uninsured motorist coverage. Nor did
"other applicable law" void such an exclusion. In particular,
Wis. Stat. section 344.33(2) did not "mandate" that insurers "provide
coverage for the entire world" and the cases cited by Clark were distinguishable
on a variety of grounds. Observing that "uninsured motorist coverage
essentially substitutes for insurance that the tortfeasor should have had,"
Justice Bablitch pithily concluded that "by purchasing uninsured motorist
coverage, the plaintiffs purchased liability coverage for the uninsured
Greek citizen, subject however to the territorial exclusions within the
United States and Canada."
Exclusions - Duty to Defend
Smith v. Katz, No. 96-1998 (filed
2 June 1998)
Giuffre sold vacant land to the Smiths, who later discovered that the
land contained underground springs that complicated construction of a home.
The Smiths sued Giuffre for breach of warranty and misrepresentation. The
circuit court granted an insurer's motion for summary judgment and dismissed
it from the case. The judge found that two exclusions in the policy applied
to the facts and therefore the insurer had no duty to defend the insured,
Giuffre, or to indemnify him. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Crooks, affirmed.
According to the record, the insurance policy expired on Sept. 12, 1991.
The Smiths claimed that the "property damage" consisted of the
land's diminished value and the damage to the foundation wall. They also
asserted that the "occurrences" that caused the damage were Giuffre's
alleged misrepresentations and the groundwater on the land. The supreme
court held that, "even assuming for purposes of argument that Smiths
sustained 'property damage' caused by an 'occurrence' as defined in accord
with the policy provisions, the property damage did not take place until
some time after the construction of the home began on March 23, 1993."
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