Vol. 71, No. 12, December 1998
Court of Appeals Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Appeals | Corporations
| Consumer Law | Criminal
Law |
| Criminal Procedure | Guardians
| Insurance |
| Municipal Law | Taxation
|
Criminal Procedure
Search and Seizure - Reasonable Expectation of Privacy
in Hospital Operating Room
State v. Thompson,
Nos. 97-2744-CR (filed 24 Sept. 1998) (ordered published 28 Oct.
1998)
The defendant was conveyed by emergency personnel to a hospital
after the latter responded to a report that the defendant was
having seizures, apparently from a drug overdose. There was information
that the defendant had swallowed several bags of cocaine when
the car in which he was a passenger was stopped earlier that
day by police. On the basis of this information, the doctor treating
the defendant determined that without surgery to remove the ingested
drugs, the defendant risked death. The police did not suggest
surgery to the doctor. A police officer was at the hospital
to take custody of the cocaine when it was removed from the
defendant. Hospital staff provided the officer with operating
room clothing and the officer observed the surgery. Consent for
the officer to be present was given by hospital staff and a supervising
physician. The doctor removed three bags of cocaine from the
defendant's small intestine.
The defendant was charged with a controlled substances violation
and, before trial, moved to suppress the evidence contending
that it was seized during a warrantless and unreasonable search.
The circuit court denied the motion, concluding that the recovery
of the cocaine did not constitute a search within the meaning
of the Fourth Amendment because the doctor was not an agent of
the state when he performed the surgery.
In a decision authored by Judge Deininger, the court of appeals
affirmed. The sole issue on appeal was whether the officer's
presence in the emergency room and operating room constituted
an unlawful search.
A search occurs when the police infringe on an expectation
of privacy that society considers reasonable. The burden is on
the defendant to show that he had a reasonable expectation of
privacy in the premises or property as well as a subjective expectation
of privacy therein.
The court concluded that the defendant had no such reasonable
expectation of privacy in the emergency room or operating room.
Applying traditional criteria for making this determination,
the court held that, though the defendant was legitimately on
the premises of the hospital, he had no property interest in
the hospital or its emergency and operating rooms, he did not
take precautions customarily taken by those seeking privacy,
and he did not put the two rooms to private use. He had no authority
to exclude others from the treatment areas of the hospital and
any expectation of privacy in those rooms was not consistent
with historical notions of privacy. Hospital treatment areas
are not public thoroughfares to which all manner of persons
have unfettered access. However, those historical notions of
privacy are not offended when a police officer, responding to
an emergency call and with the acquiescence of hospital staff,
enters the treatment area of the hospital. Nor are those notions
offended when the officer observes a surgical procedure with
the permission of the surgeon, given a patient's traditional
surrender to his or her physician of the right to determine who
may or may not be present during medical procedures.
Finally, the court concluded that certain statutory claims
of the defendant did not help his cause. It rejected his argument
that the statute providing for confidentiality of patient health-care
records (Wis. Stat. section 146.82) made the officer's presence
illegal. By its terms, the statute's confidentiality provisions
apply only to records, not to medical procedures themselves or
to places where medical procedures are performed. Further, the
physician-patient privilege codified in section 905.04 offered
no relief because it does not give a person the right to exclude
others from the treatment areas of a hospital.
For all of the foregoing reasons, the court concluded that
the defendant had no reasonable expectation of privacy in the
hospital emergency or operating room. Accordingly, the officer's
collection of evidence in these areas did not constitute a search
within the meaning of the Fourth Amendment.
Sentencing - Payment to "Crime Prevention Organizations"
State v. Bizzle,
Nos. 97-2616-CR (filed 23 Sept. 1998) (ordered published 28 Oct.
1998)
The defendant was convicted of possessing cocaine with intent
to deliver. The sentencing court imposed a prison sentence and
ordered her to make a contribution of several thousand dollars
to the City of Racine Police Department Street Crimes Unit pursuant
to Wis. Stat. section 973.06(1)(f). She thereafter filed a motion
for post-conviction relief in which she claimed that the sentencing
court impermissibly ordered this contribution. In a decision
authored by Judge Anderson, the court of appeals agreed.
Section 973.06(1)(f) provides in pertinent part that costs
taxable against the defendant include "an amount determined
by the court to make a contribution to a crime prevention organization,
if the court determines that the person has the financial ability
to make the contribution and the contribution is appropriate."
In this case the issue was whether the Street Crimes Unit of
the Racine Police Department is a "crime prevention organization"
under the statute. The appellate court concluded that it was
not. It held that, as used in the statute, a "crime prevention
organization" is an organization within the state that is
designed to encourage the public to report incidences of crime
to law enforcement agencies and to assist such agencies in the
apprehension of criminal offenders. This definition, which excludes
law enforcement agencies, is consistent with the policy that
a defendant cannot be ordered to reimburse the internal operating
expenses of law enforcement agencies.
Guardians
Incompetents - Interested Persons - Evidence
Coston v. Joseph
P., Nos. 97-1210 (filed 15 Sept. 1998) (ordered published
28 Oct. 1998)
Joseph P.'s sister and niece appealed orders finding him incompetent,
placing him in a protective setting, and appointing a guardian
for his estate and property. The court of appeals, in an opinion
written by Judge Schudson, affirmed in an opinion that addresses
the opportunity for "interested persons" to participate
in competency hearings.
The court discussed an issue of first impression: whether
a court can appoint a guardian and order protective placement
without a trial on the merits when the GAL, the proposed ward,
and his advocacy counsel do not object but "interested persons"
allegedly have. The court of appeals concluded that interested
persons can seek "further circuit court review" but
the record in this case established that the interested persons
never objected to the guardianship and protective placement.
Although chapters 880 and 55 of the Wisconsin Statutes do not
permit interested persons to "participate in the actual
hearing," the court noted that their input could be extremely
helpful and that trial courts have discretion to permit some
participation as the circumstances warrant. In this case, however,
the hearing was uncontested. Thus, the judge properly relied
upon hearsay reports and proceeded in an expedited manner. Moreover,
the interested persons never objected to the judge's reliance
on the hearsay report or otherwise exercised their rights as
interested persons to request a full evidentiary hearing.
Insurance
Automobiles - Exclusions - Notice of Renewal on
"Less Favorable Terms"
Roehl v. American
Family Mut. Ins. Co., Nos. 98-1207-FT (filed 23 Sept.
1998) (ordered published 28 Oct. 1998)
Roehl was injured while riding his motorcycle. At the time
of the accident, the Roehls owned two automobiles that were insured
by American Family (the motorcycle was insured by a different
company). Because Roehl's injuries exceeded the other driver's
insurance limits, he claimed UIM coverage under the American
Family policies. American Family denied coverage under its "drive
other car" exclusions. The trial court granted summary judgment
to American Family.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. The Roehls argued that under section 631.36(5) of the
Wisconsin Statutes, an insurer is required to give them notice
when a policy is renewed under "less favorable terms."
In a series of cases, Wisconsin courts had invalidated "drive
other car" exclusions as violating various statutes, including
those governing UIM insurance. In 1995, however, the Legislature
responded by specifically validating "drive other car"
exclusions for UIM and other coverage.
The Roehls contended that American Family was statutorily
obligated to notify them of the Legislature's action and the
insurer's reliance on it. The court rejected the argument. At
no time did American Family alter the policies' language, change
them to reflect "less favorable terms," or increase
the premiums. Although the policies contained an "elastic
clause" that conformed the policy to prevailing statutes,
the language of neither the elastic clause nor the "drive
other car" exclusion changed. In short, the Legislature's
"resuscitation" of the "drive other car"
exclusion did not obligate the insurer to provide the statutory
notice.
Acquired Vehicles - Operable Condition
Meridian Mutual Ins.
Co. v. Smith, Nos. 97-3777 (filed 3 Sept. 1998) (ordered
published 28 Oct. 1998)
Smith purchased a 1984 pickup truck in March 1996 for $100
and drove it to his farm. When he applied for insurance, he
requested coverage on only a 1981 truck and a 1991 car, not the
1984 truck. After the 1981 truck broke down in the summer of
1996, Smith repaired an oil leak in the 1984 truck and began
to drive it regularly. On Aug. 7, 1996, Smith struck and killed
a woman while driving the 1984 truck. His insurer filed a declaratory
judgment action seeking a determination that the 1984 truck was
not covered under the policy. Smith argued that he had "acquired"
the 1984 truck by repairing it and therefore it was covered under
the policy. The trial court granted summary judgment to the insurer.
The court of appeals affirmed in an opinion written by Judge
Dykman. Smith claimed that when he bought the 1984 truck he never
intended to use it. The court held, however, that Smith's intended
use or the truck's condition was not controlling. The simple
fact was that Smith drove the truck home after he bought it,
which was some 13 days before the insurance policy took effect.
Thus, Smith did not "acquire" the truck after the policy
had begun.
The "Limited Policy Law" - Policy Limits - Invalid OIC Rule
Seider v. Musser,
Nos. 98-1223 (filed 17 Sept. 1998) (ordered published 28 Oct.
1998)
The Seiders owned a building in which they both lived and
conducted a restaurant business. They did not own or occupy any
other building as their dwelling during this time. In 1995 the
building was destroyed by fire. The Seiders insured the property
under a policy carrying limits of $150,000. Although they filed
a proof of loss that covered the limits, the insurer paid them
$129,000, which represented the actual cash value of the building
minus the deductible. Under section 635.05(2) of the Wisconsin
Statutes the amount of property loss equals the policy limits
whenever the insured real property is "owned and occupied
by the insured as a dwelling." The insurer justified its
action, however, under Wis. Admin. Code section INS 4.01(2)(e)
which rendered the statute inapplicable when there is a "policy
insuring real property any part of which is used for commercial
(nondwelling) purposes other than on an incidental basis."
The circuit court rejected the Seiders' claim that the administrative
rule was invalid.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. The court held that the administrative rule conflicted
with the unambiguous language of the statute, which "does
not suggest that use of a dwelling for additional purposes affects
the statute's application." Thus, whether the dwelling also
is used for commercial purposes is of no moment. Nor did it matter
that the Seiders' coverage was under a "commercial policy"
as opposed to a "homeowner's policy."
Municipal Law
Vacating Platted Street - Effect of Assessor's Map
Schaetz v. Town of
Scott, Nos. 98-0841 (filed 22 Sept. 1998) (ordered published
28 Oct. 1998)
The petitioners appealed a circuit court order dismissing
their petition to vacate a portion of a platted street adjacent
to and abutting their real estate. The issue before the court
of appeals was whether the street vacating procedures of Wis.
Stat. section 236.43(1)(a) are available to the petitioners notwithstanding
the filing of an assessor's map. Section 70.27 authorizes a governing
body to order an assessor's map when it cannot ascertain boundaries
of land for tax purposes or when gross errors in description
exist.
Because an assessor's map was properly created, approved,
and recorded in this case, the court of appeals held that
the street vacating provisions of chapter 236 did not apply.
This holding, however, does not leave a property owner seeking
to vacate a street without a remedy. Chapters 66 and 80 of the
statutes contain provisions for vacating roadways. While
the relationship between these statutes and chapter 70 was not
before the court in this case, it did note that there is no provision
in chapter 70 that suggests that the statutes do not apply to
chapter 70. Further, the court recognized that as a result of
this interpretation a property owner no longer has a statutory
right to petition for street vacation after the filing of an
assessor's map. Legislative change must be made if this statutory
scheme does not reflect the Legislature's intention.
Taxation
Property Taxes - Void Tax Deeds - Redemption by
Payment of Taxes
Theige v. County
of Vernon, Nos. 97-0959 (filed 3 Sept. 1998) (ordered
published 28 Oct. 1998)
The plaintiff owned a parcel of land in Vernon County. He
failed to pay real estate taxes due on this land for three years.
Notice subsequently was provided to the plaintiff that the county
would apply for a tax deed after the expiration of a statutory
waiting period. After the waiting period expired, the county
clerk executed and recorded a tax deed conveying the plaintiff's
property to the county. The plaintiff thereafter filed a summons
and complaint challenging the tax deed. He argued that the deed
was void on its face because it did not conform to certain statutory
requirements. The circuit court agreed.
Three weeks later the plaintiff paid the full amount due for
all unpaid taxes plus interest and other charges. Thereafter
the circuit court issued a second decision in this case addressing
"the proper remedy in view of the court's prior decision."
In the second decision, the court characterized the tax deed
as "deficient" rather than void, and ruled that the
appropriate remedy was to allow the county to file an amended
deed in the correct form. The court also ordered the plaintiff's
redemption payment returned to him. An order for judgment to
that effect was entered and the plaintiff appealed.
In a decision authored by Judge Deininger, the court of appeals
reversed. The court first concluded that the tax deed originally
recorded by the county did not substantially comply with the
statutory requirements for such deeds. See Wis. Stat. §
75.16. In fact, the deed recites that an outdated and thus improper
procedure was used to obtain it.
Having concluded that the tax deed in question was fatally
defective, the court next considered whether the plaintiff's
attempted redemption of his property by paying the back taxes
was effective in causing title to the property to remain in his
name. The statutes permit the redemption of tax-delinquent property
at any time before a tax deed to the property is recorded. In
this case the original tax deed was recorded, but it was void
on its face. The court concluded that only a valid tax deed cuts
off an owner's right to redeem. By paying the back taxes, penalties,
and interest due prior to the recording of a valid tax deed,
the plaintiff satisfied the statutory requirements for the redemption
of his property. Accordingly, title to the property remained
vested in him by virtue of his redemption.
The court further concluded that the circuit judge did not
have authority to nullify the redemption by allowing the county
to reform its defective tax deed and thereby gain title to the
land. The county cited no provision in chapter 75 that grants
a court authority to permit retroactive amendment of a tax deed
that is void on its face and the court of appeals was aware of
none. To conclude that courts are vested with equitable or inherent
power to authorize retroactive changes to void tax deeds would
be inconsistent with the exclusive statutory origin of tax deed
proceedings. Such a conclusion also would undermine the requirement
that a valid tax deed be recorded before a property owner is
precluded from redeeming his or her property.
Prof. Daniel D. Blinka and Prof. Thomas
J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
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