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    Wisconsin Lawyer
    April 01, 2002

    Supreme Court Digest

    Daniel Blinka; Thomas Hammer

    Wisconsin Lawyer
    Vol. 75, No. 4, April 2002

    Supreme Court Digest


    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    by Prof. Daniel D. Blinka &
    Prof. Thomas J. Hammer

    * *

    Civil Procedure

    Pleadings - Failure of Licensed Attorney to Sign Pleadings - Fundamental Defect

    Schaefer v. Riegelman, 2002 WI 18 (filed 27 Feb. 2002)

    The plaintiff was represented in this legal malpractice action by the Minneapolis law firm of Winthrop & Weinstine. The summons and complaint, which were filed in a Wisconsin circuit court on Aug. 17, 1999, were signed by attorney Julie Fishel, who wrote "Robert R. Weinstine (by J.A. Fishel)" above a signature line with the typed name of Robert R. Weinstine and Weinstine's Wisconsin State Bar number below the line. Fishel signed the documents at the express request of Weinstine, who was not available to personally sign them. Both Weinstine and Fishel were licensed to practice law in Minnesota. Weinstine was also licensed in Wisconsin, but Fishel was not.

    After the plaintiff's complaint was filed, Fishel signed a petition in the Wisconsin court to appear pro hac vice and an admission order was signed by a Wisconsin judge on Aug. 31, 1999. On Sept. 9, 1999, the defendant filed an answer in which he raised the defenses that the circuit court lacked personal and subject matter jurisdiction because the summons and complaint were defective. On Sept. 20 the plaintiff filed an amended summons and complaint. The amended summons was signed by Fishel in her capacity as an attorney admitted pro hac vice, but the amended complaint was simply a photocopy of the original complaint. The defendant immediately renewed his affirmative defenses in his answer to the amended complaint.

    In May 2000 the defendant filed a motion for summary judgment, which motion was granted by the circuit court. The plaintiff appealed and the court of appeals certified the case to the Wisconsin Supreme Court, which accepted the certification.

    In a majority decision authored by Justice Wilcox, the supreme court affirmed. The court concluded that the pleadings were defective, the defect was fundamental rather than technical, and the defect was not cured by any action taken by the plaintiff. Accordingly, the circuit court properly granted the defendant's motion for summary judgment based on lack of jurisdiction.

    Wis. Stat. section 802.05(1)(a) provides in pertinent part that every pleading, motion, or other paper of a party represented by an attorney "shall be subscribed with the handwritten signature of at least one attorney of record in the individual's name." Although the signature in this case was handwritten, it was not the signature of the attorney of record in that attorney's own name. Attorney Fishel was not licensed to practice law in Wisconsin when the pleadings were filed and she was therefore ineligible to appear as an attorney of record. The statute does not allow for the delegation of the subscription requirement to an agent.

    The court further determined that attorneys Fishel and Weinstine were unable to cure the defect in the pleadings. Fishel's pro hac vice admission was not enough to cure the defect. One of the fundamental requirements of granting a motion for pro hac vice admission is that the nonresident counsel proceeds in connection with an attorney who is licensed to practice in Wisconsin and that the Wisconsin attorney appears and takes part in the proceeding. As of the time that Fishel made her motion to appear pro hac vice, no Wisconsin attorney had appeared on the record because the original pleadings had been improperly subscribed. Because there was no sponsoring attorney on the record, Fishel's signature could not retroactively become valid to commence the action when she was admitted pro hac vice. Likewise, the filing and service of the amended complaint did not cure the defect. The amended complaint was merely a photocopy of the original pleading.

    Lastly, the court considered whether the defect in the complaint was fundamental or technical in nature. The court concluded that the defect was fundamental and that the circuit court therefore lacked jurisdiction over the defendant. Reflecting on the significance of the subscription requirement, the court indicated that "the subscription requirement is not simply putting ink on paper. Rather, it is a deliberate process by which the lawyer guarantees the validity of a claim. When a lawyer signs a pleading, it is not merely a pro forma act of notarization. Before affixing a signature to pleadings, the lawyer is expected to engage in a moment of reflection, review the facts, consider the law, and satisfy himself or herself that there is a good faith basis on which to commence the action. In this way the subscription requirement provides an essential protection for the people and businesses of the state to remain free from being sued frivolously or improperly - a protection that is at the core of an attorney's professional responsibility" (¶ 30).

    During the course of this opinion, the supreme court considered the court of appeals' recent decision in Novak v. Phillips, 2001 WI App 156. In Novak the court of appeals held that the rubber-stamped signature of the attorney of record on a summons and complaint was a technical defect. The supreme court overruled Novak to the extent that the court of appeals held that the subscription defect was technical rather than fundamental. See ¶ 33.

    Chief Justice Abrahamson filed a dissenting opinion that was joined by Justices Bradley and Prosser.

    Transient Rule of Personal Jurisdiction - Fraud Exception

    Manitowoc Western Co. Inc. v. Montonen, 2002 WI 21 (filed 27 Feb. 2002)

    Manitowoc Western Co. is a Wisconsin corporation that employed Montonen, a California resident, in its California facility. In October 1994, Manitowoc sent a letter to Montonen outlining proposed terms for the sale of one of its dealerships to him. Manitowoc believed the letter to be a nonbinding general expression of intent, whereas Montonen maintained that the letter was a binding and enforceable agreement.

    Montonen came to Wisconsin with his attorney on April 30, 1996, to meet with representatives of Manitowoc to discuss their disagreement over the letter. Manitowoc filed this lawsuit against Montonen in Wisconsin earlier that day. Manitowoc served Montonen with process at the end of the meeting.

    Montonen moved to set aside the service of process and asked the circuit court to declare that it lacked jurisdiction over his person. He argued that Manitowoc engaged in fraud and deceit by tricking or enticing him to come to Wisconsin for settlement negotiations and then serving him with process once he got here. The circuit court denied the motion and the court of appeals affirmed.

    In a unanimous decision authored by Justice Bradley, the supreme court affirmed the court of appeals. Before the supreme court Montonen asked that the fraud exception to the transient rule of personal jurisdiction be expanded to prohibit service of a lawsuit on a person who comes to Wisconsin for settlement negotiations. Personal jurisdiction based only on physical presence within a state at the time of service has been referred to as either "transient jurisdiction" or the "transient rule" of personal jurisdiction. The transient rule is not without exception. Where an individual is brought within a jurisdiction by fraud or trickery, service will be set aside upon the proper showing.

    In this case Montonen conceded that he was unable to show actual fraudulent intent and thus did not fall within the traditional fraud exception. Nonetheless, he asked the supreme court to extend the fraud exception by adopting a flat prohibition on service under the transient rule during settlement negotiations. Alternatively, he sought expansion of the fraud exception to require the quashing of service when a plaintiff invites a defendant into Wisconsin for purposes of settlement talks and fails to inform the defendant of the possibility of service.

    The supreme court concluded that the public policies at stake are best served by the fraud exception as it presently stands, and it declined to extend the exception as requested by Montonen. Wisconsin has a definite interest in providing a forum where its citizens may seek legal redress. Expanding immunity from service of process to cover parties in settlement negotiations "may limit and obfuscate the availability of a Wisconsin forum for Wisconsin litigants" (¶ 30).

    The court did not agree with Montonen that the fraud exception in its present form significantly discourages settlement negotiations. As technologies such as video conferencing become increasingly commonplace, the benefits of face-to-face settlement negotiations may be realized without an in-person meeting. Further, parties may agree ahead of time that they will not attempt service during settlement negotiations. Service in violation of such a safe harbor agreement would fall within the traditional fraud exception as it is presently formulated.

    Criminal Procedure

    Rape Shield - Child's Sexual History - Expert Testimony

    State v. Dunlap, 2002 WI 19 (filed 27 Feb. 2002)

    The defendant was convicted of sexually assaulting a 6-year-old girl. Since he was not apprehended until eight years later, the victim was about 15 by the time of trial. Her testimony at trial conflicted with statements she gave immediately following the assault as well as at the preliminary hearing. The judge permitted the prosecution to call an expert on child sexual abuse in order to explain how such trauma may have affected the victim's perceptions and memories (so-called Jensen evidence).

    The defense sought unsuccessfully to introduce evidence about the child's "seductive behavior," which included several bizarre allegations, prior to the charged offense. The court of appeals reversed the conviction based on the exclusion of the child's other sexual conduct. It held that the state had "opened the door" to such evidence when it introduced the expert testimony. The court of appeals found, moreover, that the evidence was not barred by the hearsay rule or the rape shield statute.

    The supreme court, in an opinion written by Justice Wilcox, reversed the court of appeals and reinstated the conviction. First, the court found that the evidence was clearly excluded by Wisconsin's rape shield statute because it entailed "sexual conduct" by the victim. Second, the evidence did not fall within a statutory or "judicial" exception to the rule. Most of the court's analysis was directed at the so-called Pulizzano standard, a five-part test that permits limited use of a victim's sexual history where necessary to protect the defendant's constitutional right to present a defense. The court focused on one particular element: "whether the acts sought to be admitted by the defendant closely resemble those of the present case" (¶22). On this record the court found insufficient similarity to meet this criterion, categorically rejecting as unsuitably broad a defense contention that the other acts and this case all involved sexual touching (see ¶27).

    Finally, the supreme court found that the state had not "opened the door" by offering expert testimony on child sexual abuse victims. The expert's testimony, which included a description of the victim's "reporting behavior" after the attack, fell within the circle of permissible evidence (¶39).

    Justice Sykes filed a concurring opinion, writing separately to emphasize that "the inapplicability of the curative admissibility doctrine does not depend upon a conclusion that the investigator's expert testimony was Jensen evidence" (¶43).

    Credibility - Expert Testimony - Treatment Records

    State v. Rizzo, 2002 WI 20 (filed 27 Feb. 2002)

    The defendant was convicted of sexually assaulting the victim in 1995 and 1996. The victim first reported the assaults to police in 1997 after receiving psychological treatment since 1996. The trial court denied defendant's motion seeking access to the victim's treatment record based on an in camera review. At trial the state called the victim's treating psychologist, who offered expert testimony regarding the behavior of sexual assault victims. The court of appeals reversed the conviction on two grounds. First, the defendant was improperly denied access to the treatment record. Second, the expert's testimony amounted to "Jensen-type evidence," which in turn triggered the defendant's right to have the victim examined by its own psychologist, a motion denied by the trial court based on the state's pretrial representation that it would not offer Jensen-type evidence at trial.

    The supreme court, in an opinion written by Justice Bradley, reversed the court of appeals and remanded for further proceedings. The court first addressed whether the expert testimony, proffered by the state, constituted Jensen-type evidence, which is admissible whenever it would be "useful for disabusing the jury of common misconceptions about the behavior of sexual assault victims" (¶12). Agreeing with the court of appeals, the supreme court held that the prosecution had indeed offered Jensen-type evidence despite its denials to the contrary. The expert compared the victim's behavior "and the common behavior of sexual assault victims" (¶21). In particular, the prosecutor solicited the expert's opinion "as to what someone would do `under these circumstances' and `in this position'" (¶22).

    The court next addressed whether the expert testimony fell within the scope of the rule announced in State v. Maday, which permits defense experts to conduct psychological examinations of victims where certain circumstances are present. Not all expert psychological testimony implicates Maday. For this reason, the court addressed when the defendant's rights under Maday are triggered: "While we do not purport to set forth a bright line rule that will prove definitive in every case, the distinction between a psychological expert that triggers Maday and one that does not will depend in part on the extent and nature of the contact between the expert and the complaint" (¶31). More to the point: "If the state is to introduce Jensen evidence through a psychological expert who has become familiar with the complainant through ongoing treatment, or through an intensive interview or examination focused on the alleged sexual assault, the defendant must have the opportunity to show a need to meet that evidence through a psychological expert of its own" (¶32). Based on the expert's testimony in this case, the court found that Maday had been "triggered," regardless of whether the state itself, as opposed to the victim, had compensated or reimbursed the expert's time and expenses.

    Although the nature of the expert's testimony entitled the defendant to a Maday hearing, it did not automatically follow that the victim must submit to a psychological examination. Such examinations are appropriate only where a "compelling need" is demonstrated. Rejecting the state's invitation to conduct a harmless error analysis, the supreme court remanded the case for a hearing on whether the examination should be compelled.

    Finally, the record adequately supported the judge's determination that the defendant was not entitled to the victim's confidential treatment records under the so-called Shiffra procedures. The defendant sought the victim's records primarily to impeach her therapist's credibility; the expert's Jensen-type testimony did not, however, "open the door" to this line of impeachment.

    Justice Sykes concurred and wrote separately to distinguish between different types of Jensen evidence. Testimony that describes "the victim's post-assault psychological condition" might trigger Maday, unlike expert testimony that describes and compares the particular victim's reactive behavior to that of sexual assault victims generally" (¶70).


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