Vol. 75, No. 3, March
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
Criminal Law
Self-defense - Carrying a Concealed Weapon
State v. Nollie,
2002 WI 4 (filed 23 Jan. 2002)
The defendant was convicted of carrying a concealed weapon. He
appealed on the ground that the trial court erred by not permitting him
to raise self-defense as a justification defense. The court of appeals
certified the case to the supreme court.
The supreme court, in a decision authored by Justice Wilcox,
affirmed. On the facts presented in the record, the trial court properly
refused to give the self-defense instruction. Thus, the court did not
have to reach the question of "when, if ever, the privilege of
self-defense may be asserted for the crime of carrying a concealed
weapon" (¶1). Viewing the evidence in the light most favorable to
Nollie, the court found no proof of a "specific threat" that gave rise
to an actual and reasonable belief of "actual or imminent unlawful
interference" (that is, danger) (¶24). Although four men nearby
were "loud and profane," no evidence showed that they had "threatened,
accosted, communicated or even noticed Nollie at any time"
(¶24, emphasis in original). The court's concern, frankly stated,
was that "[t]o allow an individual to claim self-defense under such
circumstances would essentially allow anyone walking in a `high crime
neighborhood' to conceal a weapon - a situation that, again, would
eviscerate the legislature's intent in making carrying a concealed
weapon a crime" (¶26).
Criminal Procedure
Waiver of Jury - Judicial Colloquy with Defendant Required
State v. Anderson,
2002 WI 7 (filed 24 Jan. 2002)
The defendant was convicted of a misdemeanor following a bench trial.
On appeal he contended that his jury trial waiver was both statutorily
and constitutionally inadequate, because the trial judge and the
prosecutor failed to affirmatively approve and consent to the waiver and
because the circuit court did not engage him in a personal colloquy
confirming his written waiver of jury.
Wis. Stat. section 972.02(1) provides in pertinent part that criminal
cases shall be tried by a jury unless the defendant waives a jury in
writing or by statement in open court on the record with the approval of
the court and the consent of the state. In this case the defendant
signed a written waiver of jury, but the state did not explicitly
consent to the waiver nor did the court expressly approve of it.
In a majority decision authored by Justice Crooks, the supreme court
concluded that the circuit court approved the defendant's jury trial
waiver by accepting the waiver on the record, scheduling a bench trial,
and then subsequently conducting a bench trial. It also held that the
state consented to the jury trial waiver by participating in a bench
trial without voicing objection.
However, the court held that the record was insufficient to determine
whether the defendant's jury trial waiver was knowing, intelligent, and
voluntary. The right to a jury trial is a fundamental right and waiver
thereof must be by an intentional relinquishment or abandonment of that
right. While the statute cited above establishes the procedure for
waiving a jury trial, its requirements are not sufficient to determine
whether a defendant's waiver is knowing, intelligent, and voluntary.
Accordingly, the supreme court mandated the use of a personal
colloquy in every case in which a criminal defendant seeks to waive his
or her right to a jury trial. To prove a valid jury trial waiver, said
the supreme court, the trial judge "must conduct a colloquy designed to
ensure that the defendant: 1) made a deliberate choice, absent threats
or promises, to proceed without a jury trial; 2) was aware of the nature
of a jury trial, such that it consists of a panel of 12 people that must
agree on all elements of the crime charged; 3) was aware of the nature
of a court trial, such that the judge will make a decision on whether or
not he or she is guilty of the crime charged; and 4) had enough time to
discuss this decision with his or her attorney" (¶24).
With regard to the appropriate remedy in this case, the supreme court
held that the circuit judge must hold an evidentiary hearing on whether
the waiver of the right to a jury trial was knowing, intelligent, and
voluntary. The state will have the burden of proving by clear and
convincing evidence that the waiver met those standards. If the state is
able to satisfy its burden, the conviction will stand. If the state
fails to meet its burden, the defendant will be entitled to a new
trial.
Justice Prosser filed a dissenting opinion.
Negotiated No-contest Pleas to Multiplicitous Counts - Remedy for
Double
Jeopardy Violation
State v. Robinson,
2002 WI 9 (filed 29 Jan. 2002)
As a result of injuries inflicted by the defendant on the victim in a
single episode, the defendant was charged with one count of aggravated
battery and with one count of recklessly endangering safety. The
potential penalty on each charge was increased because the defendant was
a repeat offender.
Pursuant to plea negotiations, the state agreed to reduce the
aggravated battery count to a charge of recklessly endangering safety
and to dismiss the habitual criminality allegations. In return, the
defendant agreed to plead no-contest to the amended charge of recklessly
endangering safety and no-contest to the original count of recklessly
endangering safety as well. The state also made sentence recommendation
concessions. The circuit court accepted the defendant's pleas and found
him guilty on both charges.
The defendant filed a post-conviction motion, alleging that the two
counts of recklessly endangering safety to which he had pled no-contest
were identical in law and in fact and that his two convictions were
therefore multiplicitous and in violation of the double jeopardy clauses
of the state and federal constitutions. The circuit court denied the
motion and the court of appeals certified the case to the Wisconsin
Supreme Court.
In a unanimous decision authored by Chief Justice Abrahamson, the
supreme court reversed. It began its analysis by noting that the parties
agreed on two important propositions: 1) the amended information to
which the defendant pled no-contest was multiplicitous and violated the
double jeopardy provisions of both the state and federal constitutions;
and 2) the defendant's plea of no-contest did not waive his right to
bring a post-conviction motion to challenge his conviction on double
jeopardy grounds.
Those agreements having been noted, the court identified the single
issue before it as follows: What is the appropriate remedy when an
accused is convicted on the basis of a negotiated plea agreement and the
counts later are determined to be multiplicitous in violation of the
constitutional guarantees against double jeopardy?
The court concluded that when an accused successfully challenges a
plea to and conviction on one count of a two-count information on
grounds of double jeopardy and the information has been amended pursuant
to a negotiated plea agreement by which the state made charging
concessions, ordinarily the remedy is to reverse the convictions and
sentences, vacate the plea agreement, and reinstate the original
information so that the parties are restored to the positions they were
in before the plea agreement was negotiated. See ¶ 3.
The court further concluded that under some circumstances this remedy
might not be appropriate, and the judge should therefore examine the
remedies available and adopt one that fits the circumstances of the case
after considering both the defendant's and the state's interests.
In the present case, the court held that, after examining all the
circumstances, the available remedies, and the parties' interests, the
parties should be restored to the same positions they held before the
defective plea agreement was entered. No claim was made by the parties
that this remedy would adversely affect the state's ability to prosecute
or the defendant's ability to defend against the counts alleged in the
original information. Further, the defendant did not make a persuasive
argument that this remedy would be fundamentally unfair because it would
expose him to the risk of a greater sentence.
Prosecutor's Breach of Plea Agreement - Standard of Review
State v. Williams,
2002 WI 1 (filed 3 Jan. 2002)
In this case the supreme court was confronted with two issues. The
first involved identification of the appropriate standard of review in
cases involving alleged breaches of plea agreements. In a majority
decision authored by Chief Justice Abrahamson, the court concluded that
the terms of the plea agreement and the historical facts of the state's
conduct that allegedly constitute a breach of a plea agreement are
questions of fact that are reviewed on appeal using the clearly
erroneous standard of review. The court further concluded that whether
the state's conduct constitutes a breach of a plea agreement and whether
the breach is material and substantial are questions of law that the
appellate court determines independently of the lower courts.
Having identified the appropriate standard of review, the court next
confronted the issue of whether the state breached the plea agreement
with the defendant in the present case and whether that breach was
material and substantial. The agreement called for the prosecutor to
make a specific sentencing recommendation. The majority concluded that
the prosecutor's statements at the sentencing hearing undercut the plea
agreement, resulting in a material and substantial breach thereof.
Although the prosecutor accurately stated the terms of the plea
agreement, including the state's recommendation that was a part of the
agreement, the supreme court concluded that these remarks were not
adequate to overcome the prosecutor's covert message to the circuit
court that a more severe sentence was warranted than that which had been
recommended. "We agree with the court of appeals that `what the
prosecutor may not do is personalize the information, adopt the same
negative impressions as [the author of the presentence investigation
report] and then remind the court that the [author] had recommended a
harsher sentence than recommended. That is what happened here.'" (¶
48).
In the view of the supreme court, the state covertly implied to the
sentencing judge that the additional information available from the
presentence investigation report and from a conversation with the
defendant's ex-wife raised doubts regarding the wisdom of the plea
agreement terms. Said the court, "the state cannot cast doubt on or
distance itself from its own sentence recommendation. Although the state
is not barred from using negative information about the defendant that
has come to light after the plea agreement and before the sentencing,
the state may not imply that if the state had known more about the
defendant, the state would not have entered into the plea agreement. The
state was distancing itself from the recommendation in the present case
by implying its reservations about the sentence agreement" (¶
50).
Upon reviewing the state's remarks at the sentencing hearing, the
court concluded, as a matter of law, that the state stepped over the
fine line between relaying information to the circuit court on the one
hand and undercutting the plea agreement on the other. Therefore, it
substantially and materially breached the plea agreement because it
undercut the essence of that agreement. The court remanded the case to
the circuit judge for resentencing.
Justice Wilcox filed an opinion concurring in part and dissenting in
part, in which Justices Crooks and Sykes joined.
DNA - Discovery
State v.
Shuttlesworth, 2002 WI 3 (filed Jan. 18, 2002)
The supreme court, per curiam, concluded that the petition for review
in this case was improvidently granted and therefore dismissed it. The
issue on review was the state's alleged failure to comply with Wis.
Stat. section 972.11(5) by not disclosing the procedures and protocols
relied on by its expert to conclude that the defendant was the source of
the DNA. The court observed that the statute in question had been
repealed by 2001 Wis. Act 16, § 4003t. Chief Justice Abrahamson and
Justice Sykes did not participate.
Insurance
Bad Faith - Damages
Jones v. Secura Insurance
Co., 2002 WI 11 (filed
1 Feb. 2002)
In 1985 the Joneses bought a hotel and residence on a lake. In 1993
they insured it with Secura, whose representative labeled the property a
"good" risk. The Joneses filed a claim with Secura in 1997 because their
property was "leaning" toward the lake. A claims adjuster concluded,
however, that the condition was the result of an "on-going situation"
and not a collapse, which would have been covered by the policy.
In March 1999 the Joneses filed a lawsuit alleging bad faith and
breach of contract against Secura. The trial court dismissed the breach
of contract claim because it was precluded by the one-year statute of
limitation, Wis. Stat. section 631.83(1)(a). The trial court also ruled
that the Joneses could not use the bad faith claim to recover for their
lost property, the lost use of their property, and lost business. The
court reasoned that such damages arose only from the contract, and the
contract claim had been dismissed.
The Joneses filed an interlocutory appeal, which was granted, and the
court of appeals certified the case to the supreme court, which reversed
in a decision written by Justice Crooks. The primary issue was whether a
bad faith claim included damages that also could be pursued in a breach
of insurance contract claim, especially when the contract claim was
dismissed as barred by the statute of limitation.
The court reviewed the case law on bad faith claims in Wisconsin,
reaffirming the doctrine's primary tenets in its "overview." Turning to
this issue of first impression, the court relied upon language in
DeChant v. Monarch Life Insurance Co. to the effect that an
insurer is liable to an insured "for any damages which are the proximate
result" of the insurer's bad faith (¶32). In order to clarify "any
discrepancy among the cases," the supreme court withdrew language to the
contrary from several other decisions (¶33).
In the context of this case, the DeChant "proximate result
standard" "controls the scope of the damages available in a bad faith
action, regardless of whether damages falling within that scope would be
otherwise recoverable in a breach of an insurance contract claim"
(¶35). Put differently, the Joneses could recover their economic
damages through the bad faith claim despite the dismissal of the claim
based on the policy.
Redistricting
Redistricting of State Legislative Districts - Petition to Commence
Original Action in Wisconsin Supreme Court Denied
Jensen v. Wisconsin Elections
Board, 2002 WI 13 (filed 12 Feb. 2002)
Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E.
Panzer, representing Assembly and Senate
Republicans, petitioned the Wisconsin Supreme Court for leave to
commence an original action on the issue of state legislative
redistricting that is necessary as a result of the 2000 decennial
census. Among other things, the petitioners asked the supreme court to
remap Wisconsin's senate and assembly districts in time for the 2002
election cycle.
Intervenors in this action argued against the supreme court's
assumption of original jurisdiction because a three-judge panel of the
U.S. District Court for the Eastern District of Wisconsin has already
taken jurisdiction over state legislative redistricting and has
scheduled a trial in the matter in April 2002.
In a per curiam decision, the supreme court, though recognizing that
its participation in the resolution of the issues presented by this case
ordinarily would be highly appropriate in the absence of a timely
legislative compromise, declined to accept original jurisdiction.
The court recognized that, at this point in time, the official
commencement of the next election season is but three-and-a-half months
away and, though well into the first legislative session following the
2000 census enumeration, neither the state Senate nor the state Assembly
has submitted a legislative redistricting bill. Beyond this time
problem, the court concluded that accepting original jurisdiction at
this juncture necessarily would put this case and any redistricting map
it would produce on a collision course with the case already pending
before the federal panel. Further, the outcome in state proceedings
would be subject to later review in federal court. "At best, such a
scenario would delay and disrupt the 2002 election session, which is now
almost upon us. At worst, it would throw the whole process into
considerable doubt" (¶ 16).
The court indicated that there is no question but that this matter
warrants the supreme court's original jurisdiction and, had that
jurisdiction been invoked earlier, the public interest may well have
been served by the court hearing and deciding the case. As it stands
now, the public interest would not be so served.
In the opinion of the court, accepting original jurisdiction would
undermine principles of cooperative federalism and federal-state comity
and would result in an unjustifiable duplication of effort and expense,
all of which would be incurred by Wisconsin taxpayers. "Simultaneous,
separate efforts by the state and federal courts addressing the subject
of legislative redistricting would engender conflict and uncertainty
regarding the validity of the respective plans that the parallel
litigation would produce. The risk that this would leave the state with
no clear, authoritative map of legislative districts going into the
upcoming election season is significant" (¶ 19).
Lastly, the court noted that it has no established protocol for the
adjudication of redistricting litigation in accordance with contemporary
legal standards. A procedure would have to be devised and then
implemented, all of which would take time and "there is precious little
of that left ..." (¶ 21).
For all of these reasons, while recognizing and agreeing that the
institutions of state government are primary in matters of
redistricting, and federalism requires deference to state high courts
for their resolution, the timing and circumstances now present do not
allow the supreme court to responsibly exercise original jurisdiction in
a way that would do substantial justice to the case.
The court concluded its opinion by urging the legislature to draft a
redistricting plan and by initiating a rulemaking process to develop
procedures for original jurisdiction in future redistricting cases.
