Vol. 75, No. 9, September
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
Attorney Fees
Frivolous Actions - Award of Attorney Fees
Jackson v. Benson,
2002 WI 90 (filed 9 July 2002)
In Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602
(1998), the supreme court upheld the constitutionality of Wisconsin's
amended Milwaukee Parental Choice Program. More than three years later,
four of the original 29 plaintiffs in the case moved the supreme court
to vacate its 1998 decision. The court dismissed the motion, finding it
to be untimely and frivolous as a matter of law. See Jackson v.
Benson, 2002 WI 14. The supreme court remanded the matter to the
circuit court for a determination of the amount of reasonable attorney
fees and costs.
Thereafter, a motion was brought for reconsideration of the 2002
decision finding frivolousness and remanding for a determination of
reasonable attorney fees and costs. In a per curiam decision, the
supreme court denied the motion. The court noted that four of its five
members who sat on this case joined in the finding of frivolousness and
the award of fees. Further, with respect to those fees, the court noted
that the statutes dealing with frivolousness speak in mandatory terms
with regard to the award of reasonable attorney fees. See Wis.
Stat. §§ 809.25(3)(a), 814.025(1). "Every single reported case
in the last 20 years involving a finding of frivolousness has resulted
in the award of attorney fees and costs. We have searched for any case
involving a finding of frivolousness in which attorney fees and costs
were not awarded. We have found none" (¶ 6).
The court did grant a motion to modify the sanctions order to remove
certain plaintiffs-respondents from any obligation to pay sanctions.
Justices Wilcox, Bradley, and Sykes did not participate. Chief
Justice Abrahamson filed a dissent.
Civil Procedure
Medical Malpractice Actions - Mediation Period - Sanctions
Ocasio v. Froedtert Memorial
Lutheran Hosp., 2002 WI
89 (filed 3 July 2002)
In October 1999 the plaintiff, Ocasio, requested mediation of her
medical malpractice claim as required by Wis. Stat. chapter 655. Section
655.44(5) provides that no court action may be commenced until the
expiration of the mediation period (90 days). Nonetheless, about 10 days
later Ocasio filed a summons and complaint in circuit court, in
violation of section 655.44(5). Sometime after the statute of limitation
expired in February 2000, the defendants moved to dismiss the medical
malpractice action based on the plaintiff's failure to comply with
chapter 655. The circuit court dismissed the complaint and the court of
appeals affirmed.
The supreme court, in a decision written by Justice Bradley,
reversed. The court addressed the following question: Must a circuit
court "dismiss an action when a chapter 655 claimant fails to comply
with the provision in section 655.44(5) stating that no court action may
be commenced until the expiration of the mediation period under section
655.465(7)"? (¶11).
Without question, Ocasio had violated the statute, but the court held
that dismissal was not the automatic or sole remedy. Prior cases had
stressed the "informal, flexible procedures" for mediation in chapter
655, a scheme manifestly "inconsistent" with mandatory dismissals. The
court found that the legislature had not clearly intended such a drastic
remedy. Moreover, mandatory dismissals "would promote game playing
rather than an informal, flexible procedure for dispute resolution"
(¶22). The record in this case showed that the defendants had not
raised the purportedly fatal omission until after the running of the
statute of limitation (¶24). In sum, the circuit court had
discretion to determine what, if any, sanction was appropriate for the
plaintiff's failure to follow the statute. "The sanction may range from
no sanction to dismissal in the most egregious cases" (¶25).
Justice Crooks, joined by Justice Sykes, dissented. They concluded
that Ocasio had failed to follow the unambiguous and explicit procedures
set forth in chapter 655. Dismissal was appropriate because the circuit
court lacked competency to hear her case.
Contracts
Voluntary Payment Doctrine - Bills - Declaratory Judgments
Putnam v. Time Warner
Cable, 2002 WI 108 (filed 16 July 2002)
A "class" of cable television customers sued Time Warner Cable based
on the $5 "late fee" it imposed on customers who failed to pay their
bills on time. The circuit court dismissed the complaint with prejudice,
and the court of appeals affirmed.
The supreme court, in a decision written by Justice Prosser, affirmed
in part and reversed in part. First, the court held "that the voluntary
payment doctrine bars cable customers from recovering monetary damages
for their payment of allegedly unlawful fees without objection or
protest, if the customers do not properly allege mistake of fact on
their part or fraud or duress on the part of the cable company"
(¶3). The heart of the voluntary payment doctrine is a person's
willingness "to pay a bill without protest as to its correctness or
legality" (¶15, emphasis in original). Neither the customers'
claims that the late fee grossly inflated "actual costs" nor their
contention that the cable company "concealed material information" fell
within the exceptions for fraud or mistake of fact (¶18).
The supreme court declined to create a third exception for a
business's "wrongful conduct" (¶23). "All that a payor has to do to
sidestep the voluntary payment doctrine is to make some form of protest
over the fee prior to, or contemporaneous with, payment. When a payee
has been given that notice, the funds received can be secured for future
use until the dispute is settled" (¶33).
Second, the circuit court misapplied the law governing declaratory
judgments by improperly focusing on the fact that none of the customers
were currently facing the late payment fee. Rather, the "central issue"
concerned Time Warner's "legal right to impose a $5 late-payment fee on
its customers under their contracts" (¶47), a question of contract
interpretation that "falls expressly within the scope of the declaratory
judgment statute" (¶48). In short, the matter was "ripe for
judicial determination" (¶52).
Justice Bablitch, joined by Chief Justice Abrahamson, concurred in
the court's declaratory judgment analysis but dissented to the
majority's holding on the voluntary payment doctrine. They contended
that there should be an exception for unlawful liquidated damages.
Justice Sykes, joined by Justices Wilcox and Crooks, dissented to the
majority's holding that the case was ripe for declaratory relief.
Criminal Procedure
Experts - Character Evidence - Compelled Psychological Test
State v. Davis, 2002
WI 75 (filed 26 June 2002)
Davis was charged with child sexual abuse. He filed a motion before
trial notifying the court that he intended to introduce expert
psychological testimony to the effect that he did not exhibit "character
traits" consistent with sexual disorders such as pedophilia and, for
that reason, was less likely to have committed the offense. Such expert
evidence is usually called "Richard A.P. evidence," after its
case law progenitor.
In response, the state filed a motion to compel Davis to submit to a
psychological examination by its expert, citing State v. Maday,
179 Wis. 2d 346 (Ct. App. 1993). After the trial judge denied the
state's motion to compel an examination, the state took an interlocutory
appeal to the court of appeals. Reversing the trial court, the court of
appeals held that Davis's intent to proffer Richard A.P. expert
evidence placed his mental state in issue, waived his privilege against
self-incrimination, and opened the door to an examination by the state's
own expert.
The supreme court, in a decision written by Justice Bablitch,
reversed the court of appeals. First, the court upheld the admissibility
of expert character testimony based on Richard A.P. and its
progeny, rejecting as "unpersuasive" the state's plea to ban such proof
entirely. Nonetheless, trial courts retain the discretion to limit or
exclude expert character evidence in appropriate cases (¶21). Since
the trial court had not as yet ruled on the admissibility of the
defense's expert evidence, this matter was remanded.
As to the second issue, the court was "not prepared to conclude that
the defendant automatically waives his or her privilege simply by
introducing Richard A.P. character profile evidence"(¶37).
Such expert testimony "is introduced as character evidence, used as
circumstantial evidence to show that the defendant did not commit the
crime. The defendant has not introduced this evidence to support a
particular defense related to his mental capacity" (¶37). Nor was
the court "convinced that the state needs a reciprocal psychological
examination in order to adequately counter such Richard A.P.
character evidence" (¶38).
The court set forth the appropriate procedure, which, for the
reader's convenience, will be quoted in full: "A defendant who seeks to
introduce Richard A.P. evidence must notify the court and the
state that he or she intends to introduce this evidence at trial and
precisely identify the exact testimony that the expert will provide at
trial and the bases for the expert's opinion. Upon this disclosure, the
state may then bring a motion requesting the court to compel the
defendant to undergo an examination by an expert from the state. On this
motion, the circuit court must then carefully examine the defendant's
disclosure regarding his or her expert's testimony and the expert's
basis for his or her opinion. If this disclosure statement shows that
the expert will either explicitly or implicitly provide testimony
regarding relevant facts surrounding the alleged crime, the court may
then order the defendant to undergo a reciprocal examination from the
state based on the fact that the defendant waived his or her right
against self-incrimination. In this way, the defendant is permitted to
introduce expert opinion testimony pursuant to Richard A.P.,
but restricted from introducing statements that amount to nothing more
than the defendant's own statements on the crime" (¶40). For
example, expert opinion predicated on "standardized tests" that do not
inquire into the alleged offense normally does not trigger the
prosecution's right to have its own expert examination.
Justice Crooks, joined by Justice Prosser, dissented. They disagreed
with the majority's characterization of Richard A.P. evidence
and the application of Maday.
Evidence - Other Acts - Child Sexual Abuse Cases - Stipulations
State v. Veach, 2002
WI 110 (filed 16 July 2002)
The defendant was convicted of sexually assaulting a 7-year-old girl.
The court of appeals reversed. Although it upheld the admissibility of
other crimes evidence introduced by the state, the court found that the
defendant's trial counsel was ineffective by not advising Veach that he
could enter into a Wallerman stipulation that would have
obviated the other crimes evidence.
The supreme court, in a decision written by Justice Prosser, reversed
the court of appeals in an opinion that addressed three issues. First,
the trial court properly exercised its discretion in admitting the other
acts evidence, namely, the defendant's conviction for sexually
assaulting his own young daughter nearly 15 years earlier. Under the
Sullivan test, which governs the admissibility of such
evidence, the state proffered the other act for a permissible purpose,
namely as proof of the defendant's intent, motive, and absence of
mistake or accident. Moreover, the other acts were relevant for those
purposes under Wis. Stat. section 904.01 because they were "facts of
consequence." Prior cases clarified "that the state is required to prove
all elements of the crime beyond a reasonable doubt even if an element
is not disputed" (¶77). And the similarity of the other act with
the charged offense provided sufficient probative value, especially
since the earlier offense tended to show that unlawful "touching"
occurred, a fact denied by the defense (¶84). As to the final prong
of the Sullivan test, the court agreed that "the other acts
evidence in this case was graphic, disturbing, and extremely
prejudicial" (¶91), yet its probative value was not substantially
outweighed by unfair prejudice or other factors.
The second issue concerned whether the defendant's trial counsel
"should have stipulated to certain elements of the charges against him
in order to preclude the State from introducing other acts evidence," a
so-called "Wallerman stipulation" (¶100). The court held
"that to the extent [State v. Wallerman] and [State v.
DeKeyser] imply that the state and the circuit court are obligated
to accept Wallerman stipulations, those cases are incorrect and
must be overruled," because they conflicted with several recent supreme
court decisions that accorded the state "greater latitude" to use other
act evidence in child abuse cases (¶118). Although such
stipulations are not "per se invalid, ... the state and the court do not
have to agree to Wallerman stipulations" (¶123). The court
explicitly excepted proffered stipulations when the defendant's status
(for example, convicted felon) is itself an element.
Third, for the reasons stated above, the court of appeals erred in
finding that the defendant's trial counsel was ineffective for failing
to pursue a Wallerman stipulation.
Justice Crooks concurred and would have explicitly overruled
Wallerman and DeKeyser.
Chief Justice Abrahamson, joined by Justices Bablitch and Bradley,
dissented on the ground that this case "is part of that jurisprudence
eroding the evidentiary rule" [that is, section 904.04(2)] by permitting
the state to offer unvarnished propensity evidence under the guise of
traditional "other act" proof.
Searches - Child's Consent - Hearsay - Erroneous Instruction
State v. Tomlinson,
2002 WI 91 (filed 9 July 2002)
The supreme court, in a decision written by Justice Wilcox, affirmed
the defendant's conviction for reckless homicide while using a dangerous
weapon. The court addressed three issues.
First, the opinion explored the circumstances under which children
can give to police consent - apparent or actual - to search. The record
revealed that the defendant's teenage daughter permitted police to enter
their home and stand in the entryway and the kitchen. The defendant was
"nearby when the door opened" and did not object. "Under these
circumstances, the officers reasonably could have believed that [the
defendant] entrusted the girl with at least some authority to give
consent to enter, and certainly with enough authority to allow the
limited entry that occurred in this case" (¶34).
Second, the trial court properly admitted the preliminary hearing
transcript of a witness pursuant to the "former testimony" exception to
the hearsay rule. The declarant was "unavailable" in light of his
assertion of the privilege against self-incrimination and his persistent
refusal to testify, despite the court's order. The transcript itself
satisfied the elements of the former testimony exception - the declarant
had testified under oath at the preliminary hearing where the defendant
had the "opportunity" to examine him. The admission of the hearsay also
satisfied the confrontation right. The state had made a "good faith"
effort to produce the declarant and the transcript was introduced under
a "firmly rooted" exception; hence, it was reliable. In a significant
footnote, the court suggested that Wisconsin case law dating back to
1982 "may have been overbroad in suggesting that the unavailability
determination must be made in all Confrontation Clause cases" (¶46
n.7).
Finally, the jury instructions created an unconstitutional
presumption because they directed the jury to find, in effect, that a
baseball bat is a "dangerous weapon." Applying the harmless error
formulation set forth in State v. Harvey, 2002 WI 93, the court
held that the error was harmless because "it did not play any role in
the jury's verdict."
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Self-defense - Instructions - Victim's Character - McMorris
Evidence
State v. Head, 2002
WI 99 (filed 11 July 2002)
The defendant was convicted of first-degree intentional homicide in
the shooting death of her husband. The court of appeals affirmed.
The supreme court, in a decision written by Justice Prosser, reversed
and remanded. The record supported the defendant's claim of imperfect
self-defense. She was entitled to an instruction on second-degree
intentional homicide and to introduce evidence of the victim's violent
character in her effort to mitigate the charge of first-degree
intentional homicide. Of special note, the supreme court also declared
that Wis JI - Criminal 1014 (mitigation of first-degree to second-degree
intentional homicide) "does not accurately reflect the law as set forth
in this opinion" (¶7). The salient parts of the opinion are
summarized below.
First, "a defendant seeking a jury instruction on perfect
self-defense to a charge of first-degree intentional homicide must
satisfy an objective threshold showing that she reasonably
believed that she was preventing or terminating an unlawful interference
with her person and reasonably believed that the force she used
was necessary to prevent imminent death or great bodily harm" (¶4,
emphasis in original). The defendant also must show that she or he
actually believed these circumstances existed. A conviction for
first-degree intentional homicide requires that the state prove beyond a
reasonable doubt that the defendant did not, in fact, hold one or the
other "actual" belief (¶70).
Second, a defendant seeking a jury instruction on imperfect
self-defense to first-degree intentional homicide is not required to
establish an "objective threshold" of proof regarding her belief that
she was in imminent danger or her belief that the force used was
necessary (¶5). Nonetheless, "when imperfect self-defense is placed
in issue by the trial evidence, the state has the burden to prove that
the person had no actual belief that she was in imminent danger of death
or great bodily harm, or no actual belief that the amount of force she
used was necessary to prevent or terminate this interference. If the
jury concludes that the person had an actual but unreasonable belief
that she was in imminent danger of death or great bodily harm, the
person is not guilty of first-degree intentional homicide but should be
found guilty of second-degree intentional homicide" (¶103).
The supreme court also addressed the evidentiary showing - "some
evidence" - required to raise the issue of imperfect self-defense,
observing that it "should not present great difficulty" (¶110). In
so doing, the defense may rely on a proffer of McMorris
evidence (essentially, evidence that the defendant knew or believed that
the victim had a reputation for violence); put differently, the defense
is not forced to demonstrate self-defense with evidence independent of
McMorris proof. The defense also may offer proof of the
victim's violent character (¶123).
Chief Justice Abrahamson, joined by Justice Bradley, filed a
concurring opinion. Justice Wilcox also filed a concurring opinion that
was joined by Justice Crooks.
Self-defense - Accident - Discretionary Reversal
State v. Watkins,
2002 WI 101 (filed 11 July 2002)
In a bench trial, the defendant was convicted of the lesser included
offense of second-degree intentional homicide. The court of appeals
reversed the defendant's conviction. The defendant shot the victim
during a quarrel in a hotel room, but claimed it occurred "accidentally"
while he was defending himself.
The supreme court, in a decision written by Justice Prosser, modified
and affirmed the court of appeals. In remanding the case for a new
trial, the supreme court found that the real controversy had not been
fully tried under Wis. Stat. section 751.06. First, the trial court did
not provide a "clear analysis" of its thinking regarding the interplay
of self-defense and accident. Second, defense counsel failed to properly
investigate the victim's violent reputation or to offer such evidence.
Third, the court's rulings went against the defendant "on virtually
every point in contention" (¶88). Fourth, the "retreat" doctrine
was not properly applied. And fifth, the lengthy sentence aroused
concerns.
Of more general importance, the court also held that "accident" is
"not a true affirmative defense" because it attacks the elements of the
offense (¶39). True affirmative defenses implicate facts
apart from elements of the crime (¶40). "[T]he defense of
accident is a defense to a charge of intentional homicide only if the
person who caused the death was acting lawfully and with no criminal
intent. We conclude that pointing the gun at another person as a threat
of force does not necessarily preclude the possibility of asserting the
accident defense so long as the person reasonably believes that
such a threat of force is necessary to prevent or terminate what he or
she reasonably believes to be an unlawful interference"
(¶58, emphasis in original).
Although the supreme court ordered a new trial under the
discretionary reversal standard, it found reasonable the trial judge's
conclusion that the defendant had acted unreasonably in defending
himself (¶¶75-77). It also reiterated that an "appellate court
should not sit as a jury making findings of fact and applying the
hypothesis of innocence rule de novo to the evidence presented at trial"
(¶77).
Justice Sykes did not participate in this decision.
Search and Seizure - Consent to Search Vehicle After Traffic Stop
Concluded
State v. Williams and State v. Mathews, 2002
WI 94 (filed 9 July 2002)
Defendant Williams and his passenger, Mathews, were stopped for
speeding on an interstate highway. The state trooper conducting the stop
issued a warning citation and returned Williams' driver's license and
other paperwork, said "We'll let you get on your way," shook hands with
him, and headed back to his squad car. After taking two steps, the
trooper abruptly turned around and began questioning Williams as to
whether he had any guns, knives, drugs, or large amounts of money in the
car, and asked for permission to search the vehicle. Williams denied
having any of the items in question and gave consent to a search. During
that search the trooper found heroin and a gun.
The circuit court suppressed the evidence recovered in the search,
concluding that the consent was invalid because Williams' continued
detention after the traffic stop had concluded was illegal. The court of
appeals affirmed.
In a majority decision authored by Justice Sykes, the supreme court
reversed the court of appeals. The court began its analysis by observing
that the question of whether a police contact is a "seizure" under the
Fourth Amendment is determined by using an objective test. "A person has
been 'seized' within the meaning of the Fourth Amendment only if, in
view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave." U.S. v.
Mendenhall, 446 U.S. 544, 554 (1980). Questioning by law
enforcement officers does not alone effectuate a seizure.
It was clear to the court, based upon the evidentiary facts
established in this case, that the original traffic stop had concluded
before the trooper asked about contraband and for permission to search.
Accordingly, it focused on whether the driver was seized after
the conclusion of the original traffic stop.
The majority concluded that a reasonable person in the defendant's
circumstances would not have considered himself compelled to stay and
answer the officer's questions. "Stated positively, a reasonable person
would have felt free to decline to answer the officer's questions and
simply 'get on [his] way'" (¶ 28). The officer did nothing,
verbally or physically, to compel the defendant to stay. Accordingly,
the consent to search the vehicle was not invalid.
In a footnote, the majority observed that this case did not present
the question of whether the officer impermissibly exceeded the scope of
or prolonged the initial seizure in violation of the Fourth
Amendment.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Habitual Criminality - Proof of Repeater Status With Uncertified
Copy of Judgment of Prior Conviction
State v. Saunders,
2002 WI 107 (filed 16 July 2002)
This case concerns the proof that the state may use to establish that
the defendant is a repeat offender under the habitual criminality
statute. See Wis. Stat. § 939.62. A defendant is subject
to an enhanced penalty for habitual criminality only if 1) the defendant
personally admits to the prior convictions that qualify him or her for
repeat offender status, or 2) the existence of qualifying prior
convictions is proved by the state. See Wis. Stat. §
973.12(1). The question before the court in this case was whether a copy
of a prior judgment of conviction must be certified when the state uses
it to prove the defendant's status as a repeat offender.
In a majority decision authored by Justice Prosser, the court held
that section 973.12(1) does not require the state to use certified
copies of prior judgments of conviction in order to meet its proof
burdens under the statute. The rules of evidence do not apply to
documents offered during a circuit court's presentence determination of
whether a qualifying prior conviction exists. However, the state bears
the full burden of proof, and it must offer proof beyond a reasonable
doubt of the prior convictions. Said the court, "the better practice is
for prosecutors to offer certified copies of judgments of conviction"
(¶ 70).
The court counseled prosecutors not to depend upon the cooperation of
defendants to prove prior convictions. "They should plan to present the
best evidence available, and the best evidence available will normally
be a certified copy of a judgment of conviction" (¶ 55).
It also urged trial courts to develop a standard colloquy regarding
prior convictions, so that a defendant's admissions will fully satisfy
the statute's requirements. The defendant may stand mute and decline to
respond, as is his or her right, but in many instances an admission will
obviate the need for the state to meet its proof requirements in other
ways.
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson.
Insurance
UIM - Illusory Coverage
Badger Mutual Ins. Co. v.
Schmitz, 2002 WI 98 (filed 10 July 2002)
Schmitz was horribly injured while riding as a passenger in a truck
that slid on an icy road and flipped over. The driver's insurer paid
Schmitz its $100,000 liability limits. Schmitz had underinsured motorist
(UIM) coverage of $250,000 issued by American Merchants. Exercising its
reducing clause, the UIM carrier paid Schmitz only $150,000. The trial
judge acknowledged that the reducing clause conformed to the
requirements of Wis. Stat. section 632.32(5)(i), but found that it
rendered the UIM coverage illusory because the clause failed to clearly
set forth that UIM payments would be reduced by sums paid by others. The
court of appeals reversed.
The supreme court, in a decision written by Justice Prosser, reversed
the court of appeals. The court extensively analyzed Wisconsin's
"nettlesome" case law and statutory experience with UIM, which it
likened to a "legal iceberg." The review focused especially on the
labyrinthine litigation over whether reducing clauses render UIM
coverage "illusory." In the wake of Dowhower v. West Bend Mut. Ins.
Co., 200 WI 73, the court of appeals had concluded that an
"unambiguous" reducing clause ends the inquiry. The supreme court,
however, corrected this misimpression because "Dowhower contemplates
consideration of the entire policy" (¶42) (emphasis original).
Correctly understood, the cases "direct a reviewing court to examine an
unambiguous reducing clause in the context of the entire policy to
determine whether the coverage provided is understandable and clear. If
the coverage provided is misleading and unclear, the policy is
ambiguous, or worse, and the clause reducing UIM coverage is not
enforceable" (¶49).
Carefully reviewing the entire policy, the supreme court charitably
characterized the policy as "a maze that is organizationally complex and
plainly contradictory," and one which "sends several false signals to
the insured"(¶72). First, the declarations page, usually the first
resort by insureds, failed to mention UIM coverage. Second, the "quick
reference" sheet also contained no mention of UIM. Third, a schedule on
page 23 of the policy "implied" that the full UIM limits were attainable
(¶65). Finally, the form addressed to Wisconsin UIM coverage
"appears to tell a prospective insured that if he or she purchases UIM
coverage, the coverage will pay the remainder of the bodily injury
damages up to the limit of liability the person selects" (¶70).
Justice Crooks, joined by Justices Sykes and Wilcox, dissented
because the majority "completely ignores the unambiguous UIM reducing
clause" (¶76).
Juvenile Law
Termination of Parental Rights - Standards for Determining
Disposition of TPR Cases - Best Interests of the Child
Sheboygan County Department of Health &
Human Services v. Julie A.B., 2002 WI 95 (filed 10 July
2002)
At a fact-finding hearing held pursuant to Wis. Stat. section 48.424,
a jury found that a child placed in foster care because of parental
neglect had a continuing need of protection or services, which is one of
11 statutory grounds for terminating parental rights. The circuit court
then found the parent unfit pursuant to section 48.424(4), after
concluding that the evidence supported the verdict. However, at the
dispositional hearing, the court deter mined that the parent's conduct
was not sufficiently egregious to warrant termination of parental rights
and that termination was not essential to the child's safety or welfare.
It therefore dismissed the TPR petition without ever considering the
best interests of the child.
The court of appeals affirmed, concluding that the standards applied
by the circuit court were correct, based on language in B.L.J. v.
Polk County Department of Social Services, 163 Wis. 2d 90, 470
N.W.2d 914 (1991), and State v. Kelly S., 2001 WI App 193.
In a unanimous decision authored by Justice Prosser, the supreme
court reversed the court of appeals. It concluded that the standards
applied by both the circuit court and the court of appeals were
incorrect. After a jury or the court has found one of the grounds for
termination listed in the statute and the court has found the parent
unfit, the focus shifts to the child's best interests. At the
dispositional hearing, the court must consider any agency report
submitted and the six factors listed in section 48.426(3) in determining
the best interests of the child. The court also may consider other
factors, including factors favorable to the parent. But all factors
relied on must be calibrated to the prevailing standard: the best
interests of the child. "The best interests of the child is the polestar
for the court in a dispositional hearing, and a failure to apply that
standard is an error of law" (¶ 4).
The termination statute does not require the termination of parental
rights, but it does require the court to consider the best interests of
the child. Therefore, at a dispositional hearing, the judge must explore
the child's best interests and then determine whether maintaining the
parents' rights serves the child's best interests. "A court should not
dismiss a petition for termination at a dispositional hearing unless it
can reconcile dismissal with the best interests of the child" (¶
38). The best interests of the child standard is to be defined in
relation to the child.
The court indicated that "no inference should be drawn from this
opinion that, at a dispositional hearing, dismissal is the exception and
termination is the rule. The best interests of the child will always
drive the court's inquiry" (¶ 42).
Lastly, the court modified the legal standards set forth in
B.L.J. and overruled Kelly S.
Waivers to Adult Court - Power of Juvenile Court to Reconsider
Waiver Decision
State v. Vairin M., 2002 WI 96 (filed 10 July
2002)
The question before the supreme court in this case was whether a
court with juvenile jurisdiction may reconsider its order waiving a
juvenile into adult court after the state has filed charges against the
juvenile in adult court. In an opinion authored by Justice Prosser, the
majority held that a juvenile court has jurisdiction to reconsider its
waiver order or to stay its waiver order pending appeal only until the
filing of a complaint in adult criminal court. After the filing of a
criminal complaint, the juvenile court loses jurisdiction and the
criminal court has exclusive jurisdiction.
The court also addressed the question of whether there is some means
by which a juvenile may seek prompt review of an order waiving him or
her into criminal court after the criminal court has assumed exclusive
jurisdiction over the case. It held that a juvenile seeking prompt
review of a waiver order under these circumstances has two options:
First, the juvenile may bring a timely interlocutory appeal under
Wis. Stat. section 809.50 and may move the court of appeals or the
criminal court to stay the criminal proceedings pending appeal.
Second, if the juvenile has compelling new grounds bearing on waiver,
he or she may file a motion with the criminal court asking the court to
relinquish its jurisdiction by transferring the matter to juvenile
court. "As grounds for the motion, the juvenile must allege a new factor
that: 1) was not in existence at the time of the waiver decision or, if
it was in existence, was unknowingly overlooked by all parties; 2) is
highly relevant to the criteria for waiver under Wis. Stat. section
938.18(5); and 3) likely would have affected the juvenile court's
determination that it would be contrary to the best interests of the
juvenile or of the public for the juvenile court to hear the case"
(¶ 7).
After reviewing the motion, the criminal court may, in its
discretion, conduct a hearing. If the court finds good cause, it may
relinquish jurisdiction by transferring jurisdiction to the juvenile
court. The juvenile may then file a motion for reconsideration of waiver
with the juvenile court, which will have regained exclusive jurisdiction
to entertain the motion. The court observed that this new procedure
"should be regarded as extraordinary. It should be strictly limited to
compelling new factors. Previously considered or cumulative evidence may
not form the basis of such a motion" (¶ 56).
Justice Crooks filed a concurring opinion that was joined by Justices
Wilcox and Sykes.
Mental Commitments
Dangerousness - Constitutionality
State v. Dennis H.,
2002 WI 104 (filed 12 July 2002)
The supreme court accepted this case on certification to decide a
single issue: "whether the fifth standard of dangerousness in the
involuntary civil commitment statute, Wis. Stat. § 51.20(1)(a)2.e.
(1999-2000), is constitutional." This complex standard relates to
persons who, because of their mental illness, are unable to make
informed choices about treatment or medication. In this case the
respondent's father, his psychiatrist, and his case manager filed a
three-party petition alleging that the respondent's schizophrenia left
him unable to care for his kidney condition. The respondent argued that
the statute was unconstitutionally vague and overbroad, and that it
denied his rights to equal protection and due process.
The supreme court upheld the statute's constitutionality in the face
of all four challenges. Writing for the court, Justice Sykes addressed
the respondent's central contention that the fifth standard differed
substantially and impermissibly from the first four by not requiring
proof of "physical harm." To the contrary, "[t]he fifth standard
requires proof of a substantial probability that 'if left untreated,'
the individual will 'lack services necessary for his or her health or
safety and suffer severe mental, emotional, or physical harm that will
result in the loss of the individual's ability to function independently
in the community or the loss of cognitive or volitional control over his
or her thoughts or actions" (¶30). Nor did the fifth standard run
afoul of substantive due process by not requiring "imminent" physical
harm to self or others. "[B]y requiring dangerousness to be evidenced by
a person's treatment history along with his or her recent acts or
omissions, the fifth standard focuses on those who have been in
treatment before and yet remain at risk of severe harm, that is, those
who are chronically mentally ill and drop out of therapy or discontinue
medication, giving rise to a substantial probability of a deterioration
in condition to the point of inability to function independently or
control thoughts or actions" (¶41).
Chief Justice Abrahamson, joined by Justices Bablitch and Bradley,
concurred but wrote separately to emphasize how "perilously close" the
fifth standard came to upsetting the constitutional balance and the
concomitant necessity of adducing "significant evidence" to support such
commitments.
Motor Vehicle Law
OWI - Constitutionality of Blood Draw When Defendant Offers to Take
Breath Test Instead
State v. Krajewski,
2002 WI 97 (filed 10 July 2002)
The issue before the court in this case was whether the state may
require a warrantless blood draw for alcohol concentration testing from
a person who is arrested on probable cause for OWI, when the person
refuses to submit to a requested blood test under the implied consent
statute but offers to submit to a breath test in lieu of a blood
test.
In a majority decision authored by Justice Prosser, the court held
that a warrantless nonconsensual blood draw from a person arrested on
probable cause for OWI is constitutional based on the exigent
circumstances exception to the Fourth Amendment's warrant requirement,
even if the person offers to submit to a chemical test other than the
blood test chosen by law enforcement. However, the blood draw must
comply with factors specified in State v. Bohling, 173 Wis. 2d
529, 494 N.W.2d 399 (1993). The Bohling court concluded that a
warrantless blood sample taken at the direction of a law enforcement
officer is permissible under the following circumstances: 1) the blood
draw is taken to obtain evidence of intoxication from a person lawfully
arrested for a drunk driving-related violation or crime, 2) there is a
clear indication that the blood draw will produce evidence of
intoxication, 3) the method used to take the blood sample is a
reasonable one and performed in a reasonable manner, and 4) the arrestee
presents no reasonable objection to the blood draw.
The majority concluded that the warrantless blood draw in this case
was properly based on exigency and complied with the factors enumerated
in Bohling. The court rejected the defendant's argument that
the exigency was negated by his offer to submit to a breath test rather
than the blood test required by the officer. Nor did his offer render
unconstitutional the withdrawal of blood.
The defendant's purported reason for declining consent for the blood
draw was his fear of needles. The court concluded that there was no
reason to treat his alleged fear as different from an articulated
preference for a different chemical test. Said the majority, "blood
draws to test for alcohol concentration are so commonplace, so accepted,
so likely to be reasonable in their execution that a person's mere
preference for a different test cannot be viewed as significant in a
constitutional sense" (¶ 57). The implied consent statute limits
the viable excuses of a medical or physical nature for refusing to
submit to a chemical test, and the court concluded that those excuses
represent a valid standard to apply in situations like the one in this
case, in which blood was obtained outside the authority of the implied
consent statute. [In this case the defendant refused the officer's
request under the implied consent statute to submit to a blood test.
Nonetheless, the police proceeded to obtain a blood sample on an exigent
circumstances theory outside the implied consent statute.]
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson.
Open Records Law
Police Files - Closed Investigations
Linzmeyer v. Forcey,
2002 WI 84 (filed 2 July 2002)
The plaintiff was a high school mathematics teacher and girls'
volleyball coach. The local police department conducted an investigation
into allegations that he had made inappropriate statements to and
engaged in inappropriate conduct with a number of his female students. A
police report was compiled that contained the information obtained
during the course of the police investigation.
The plaintiff was neither arrested nor prosecuted based on any
information contained in the police report. Nor did the school district
take any disciplinary action against him. Ultimately, the plaintiff
resigned his position.
The parents of two of the students, along with a newspaper, requested
release of the police report under the open records law. The
investigation was closed when the open records request was made. The
city attorney planned to release the report in the absence of judicial
action. The plaintiff thereafter sought an injunction from the circuit
court to prevent release of the report.
The circuit court concluded that the public's interest in the
disclosure of the report outweighed the public's interest in protecting
the plaintiff's reputation or privacy and denied the injunction. The
plaintiff appealed, and the court of appeals certified the case to the
supreme court.
The supreme court accepted certification and, in a decision authored
by Justice Wilcox, affirmed. The court first considered whether the open
records law applies to the record in question in this case - the report
of a police investigation when the investigation has been closed and
when no enforcement action has been taken or is contemplated. The court
held that the open records law does apply and that no statutory or
common law exceptions exempt the report from release. While certain
sections of the open records law clearly prevent the release of law
enforcement records under certain circumstances, those sections do not
apply to the report in this case. Here, the report is a closed police
file, no enforcement action was ever taken against the subject, it has
been confirmed that no enforcement action will be taken in the future,
and the investigation was not related to any other ongoing
investigations. Because the report is a public record under the open
records law and there is no statutory or common law exception, the court
found that the open records law applies and that the presumption of
openness attaches to the report.
The court next considered whether that presumption can be overcome by
public policy favoring nondisclosure of the report. To make this
determination, a balancing test is used on a case-by-case basis to
determine whether permitting inspection of the records would result in
harm to a public interest that outweighs the public interest in opening
the records to inspection. In weighing public policies for and against
release in this case, the court took the opportunity "to provide some
guidance in dealing with the open records law as it relates to police
records, and we attempt to identify factors that should be taken into
consideration by records custodians before law enforcement records are
publicly released" (¶ 12).
In doing so, the court found guidance in the federal Freedom of
Information Act (FOIA), 5 U.S.C. 552. FOIA exempts law enforcement
records from public disclosure under the following circumstances: "when
the production of such law enforcement records or information (A) could
reasonably be expected to interfere with enforcement proceedings, (B)
would deprive a person of a right to a fair trial or an impartial
adjudication, (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source, ... , (E)
would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical safety of any
individual." 5 U.S.C. 552(b)(7).
These factors provide a framework that records custodians can use to
determine whether the presumption of openness in law enforcement records
is overcome by another public policy. In the present case, the court
concluded that the public interest in preventing disclosure does not
outweigh the public interest in release of the information.
The court concluded its opinion by cautioning that its decision on
the merits in this case does not mean that all police records are
immediately open to complete public disclosure, simply because there is
a decision not to charge. "We emphasize again that the balancing test
must be done on a case-by-case basis, to ensure that the public policies
for and against release are assessed" (¶ 42).
Chief Justice Abrahamson filed a concurring opinion.
Protective Placement
Wis. Stat. Chapter 55 - Liability of Counties
Dunn County v. Judy
K., 2002 WI 87 (filed 3
July 2002)
Judy K. is developmentally disabled, and Dunn County filed a petition
requesting that she be protectively placed under Wis. Stat. chapter 55.
Before the final hearing on the petition could be held, she was
transferred to the Trempealeau County Health Care Center pursuant to an
emergency placement order. At the hearing on permanent placement, the
parties stipulated to a finding of the need for placement, but there
were issues with respect to whether the Trempealeau County Health Care
Center was the least restrictive environment appropriate for her. At a
continuation of the final hearing, the county conceded that at least two
of the proposed placement options were appropriate for Judy K. and were
less restrictive than Trempealeau. However, its position was that she
should remain at Trempealeau, where there was no additional cost to the
county.
The circuit court ordered that Judy K. be transferred to a more
expensive though less restrictive facility. Further, it directed the
county to take affirmative steps to seek additional federal, state,
local, or other funding to support the costs of her placement.
In a majority decision authored by Justice Bradley, the supreme court
affirmed the circuit court. It articulated the issue before it as being
whether, in a protective placement, a county may be required to take
affirmative efforts to find and fund an appropriate placement. The court
concluded that in protective placements pursuant to section 55.06(9)(a),
counties must make an affirmative showing of a good faith, reasonable
effort to find an appropriate placement and to secure funding to pay for
an appropriate placement.
The determination of what is an appropriate placement depends on the
application of all the factors outlined in the statute. At the same
time, the statute provides a limitation on a county's ultimate financial
liability: the county may not be required to provide funding, in
addition to its funds that are required to be appropriated to match
state funds, in order to protectively place an individual. See
¶ 29.
In the court's opinion, the "find and fund standard will help ensure
that protective placements comport with the multi-factor statutory
scheme, which recognizes the needs and rights of placed individuals as
well as the significant role that counties play in the protective
placement system" (¶ 30).
Justice Prosser filed a dissenting opinion that was joined by
Justices Wilcox and Sykes.
Sexually Violent
Persons
Chapter 980 - Issue Preclusion - Recantations
State v. Sorenson,
2002 WI 78 (filed 28 June 2002)
In 1985 Sorenson was convicted of sexually assaulting his 7-year-old
daughter, L.S. Although L.S. later allegedly recanted her testimony,
Sorenson and the state agreed to a reduced sentence that obviated a
hearing on the recantation. Sorenson's parole was later revoked, and in
the late 1990s the state sought his commitment as a sexually violent
person pursuant to Wis. Stat. chapter 980. At his chapter 980 trial, the
judge refused to admit evidence of L.S.'s alleged recantation because it
would in effect reopen the 1985 conviction and mislead the jury. On
appeal from a finding that Sorenson was a sexually violent person, the
court of appeals reversed the judgment and remanded for further
proceedings on whether issue preclusion barred Sorenson from offering
all evidence of L.S.'s recantation.
The supreme court, in a decision written by Justice Bablitch,
affirmed in an opinion that modified the court of appeals' analysis. The
opinion disposed of two preliminary issues. First, chapter 980
respondents have the same constitutional rights as criminal defendants,
as provided by Wis. Stat. section 980.05(1m). Nothing in the case law
renders this "ambiguous." Second, because the issue had not been fully
briefed, the court refrained from deciding whether issue preclusion is
constitutionally prohibited across the board (¶22). Nonetheless,
the court found that it might be "fundamentally unfair" to apply issue
preclusion against Sorenson even if the doctrine is generally applicable
in chapter 980 proceedings.
Examining the offensive use of issue preclusion as explicated in
prior cases, the supreme court focused on whether "matters of public
policy and individual circumstances" rendered its application "unfair,"
considering especially any "inadequate opportunity or incentive to
obtain a full and fair adjudication in the initial action" (¶23).
The state's experts relied heavily on the fact that Sorenson had
committed the underlying offense. The victim's alleged recantation must
meet the standard for "newly discovered evidence" as set forth in the
case law (see § 26). If that test is met, "issue
preclusion cannot apply as a matter of law based on fundamental
fairness" (¶33).
Finally, the court rejected the state's contention that Sorenson's
motion constituted an impermissible collateral attack on the underlying
1985 conviction.
Chapter 980 - Constitutionality
State v. Laxton,
2002 WI 82 (filed 1 July 2002)
Laxton was convicted for a variety of sex-related offenses in 1987,
and in 1994 had his parole revoked for "peeping" at young girls. In 1998
he was adjudicated a sexually violent person under Wis. Stat. chapter
980 and ordered committed.
The supreme court, in a decision written by Justice Crooks, affirmed
Laxton's commitment. First, Laxton raised various substantive due
process challenges. Relying in part on Kansas v. Crane, 534
U.S. 407 (2002), the court upheld chapter 980 despite Laxton's
contention that it failed to adequately "narrow the class of persons
eligible for commitment to those who have serious difficulty in
controlling their dangerousness in a manner distinct from the typical
recidivist" (¶17). In sum, the "concept of control" is embraced
through the elements of 1) mental disorder and 2) dangerousness:
"[T]he required proof of lack of control ... may be established by
evidence of the individual's mental disorder and requisite level of
dangerousness, which together distinguish a dangerous sexual offender
who has serious difficulty controlling his or her behavior from a
dangerous but typical recidivist" (¶21).
Second, the jury instructions did not deprive him of due process (the
supreme court overlooked Laxton's waiver of error and addressed the
merits of his claim). The instructions "virtually tracked the
definitions of 'mental disorder' and 'sexually violent person' in Wis.
Stat. section 980.01" (¶27). Finally, the court was not persuaded
that Laxton was entitled to a new trial because the "real controversy"
was not fully and fairly tried.
Torts
Municipal Immunity - "Known Danger" Exception
Lodl v. Progressive Northern
Ins. Co., 2002 WI 71
(filed 25 June 2002)
The plaintiff was injured in an intersection accident in the town of
Pewaukee. The traffic control lights at the intersection were inoperable
because of a storm and so the town dispatched a police officer to the
scene. The plaintiff sued the officer and the town, claiming that the
officer negligently failed to control traffic and that the town was
liable for the officer's negligence under respondeat superior
theory.
The circuit court granted summary judgment in favor of the
defendants, concluding that they were immune under Wis. Stat. section
893.80(4). The court of appeals reversed, finding that the known danger
exception to immunity applied and that material factual issues regarding
the adequacy of the officer's response to the known danger precluded
summary judgment.
In a majority decision authored by Justice Sy
Wisconsin Lawyer