Vol. 77, No. 8, August
2004
Court of Appeals Digest
This column summarizes selected published opinions of the Wisconsin
Court of Appeals. 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.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Appellate Procedure
Notice of Appeal - Notice Fundamentally Flawed Because It Was Not
Signed by Appellant's Counsel
Brown v. MR Group
LLC, 2004 WI App 122 (filed 26 May 2004) (ordered published 30
June 2004)
The appellant filed a notice of appeal on which his attorney's name
appears as a handwritten signature with the initials "sad" appearing
below counsel's name. Counsel had directed his legal assistant, whose
initials were "S.A.D.," to affix the attorney's signature to the notice
of appeal after the attorney prepared and reviewed the document. The
respondent argued that the notice of appeal was fundamentally defective
and that therefore the court of appeals lacked jurisdiction over this
appeal.
In a per curiam decision the appellate court held that "in order to
confer jurisdiction on this court, a notice of appeal filed by counsel
on behalf of another must contain the handwritten signature of an
attorney authorized to practice law in Wisconsin. Counsel cannot
delegate the duty to affix a signature on a notice of appeal to a person
not authorized to practice law in Wisconsin" (¶ 1).
Wis. Stat. section 802.05(1)(a) requires an attorney of record to
sign the pleading in the attorney's own name. The statute "does not
permit counsel to delegate to a person not authorized to practice law in
Wisconsin the function of affixing counsel's signature to the notice of
appeal" (¶ 13). "When a notice of appeal is not signed by an
attorney when an attorney is required, the notice of appeal is
fundamentally defective and cannot confer jurisdiction on this court. A
person not admitted to practice law has no authority to sign a pleading
on behalf of another to invoke this court's jurisdiction. A
fundamentally defective notice of appeal cannot be cured by the filing
of an amended notice of appeal which is not otherwise timely
vis-à-vis the order or judgment appealed from" (¶ 6).
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Criminal Law
Failure to Pay Child Support - Elements of the Crime - "Court of
Competent Jurisdiction" Element - Authentication of Out-of-State Support
Order
State v. Smith,
2004 WI App 116 (filed 27 May 2004) (ordered published 30 June 2004)
The state charged the defendant with two counts of failure to pay
child support for a period of 120 or more consecutive days. Wis. Stat.
section 948.22(2) provides that "[a]ny person who intentionally fails
for 120 or more consecutive days to provide ... child support which the
person knows or reasonably should know the person is legally obligated
to provide is guilty of a ... felony." The statute defines "child
support" to include "an amount which a person is ordered to provide for
support of a child by a court of competent jurisdiction in this
state or in another state ...." (emphasis supplied).
At trial the defendant argued that the matter of the court's
competent jurisdiction must be submitted to the jury, and he requested a
jury instruction to that effect. The circuit court ruled as a matter of
law that the court in Maine that had issued the child support order was
a court of competent jurisdiction. The trial judge refused to instruct
the jury on this issue and prohibited the defense from presenting direct
evidence on the question. The defendant was convicted on both
counts.
In an opinion authored by Judge Dykman, the court of appeals
reversed. It concluded that "where, as here, a charge of failure to
provide child support is based upon noncompliance with a child support
order, the question of whether the child support order has been issued
by a court of competent jurisdiction needs to be submitted to the jury,
even though that determination involves the application of a legal
standard to the facts of the case" (¶ 9). This is the result
because one element of this crime is that a court of competent
jurisdiction must have issued the child support order. Accordingly, the
appellate court concluded that "the trial court's refusal in this case
to instruct the jury that the child support order needed to have been
issued by a court of competent jurisdiction deprived the defendant of
his Fifth Amendment right to have all elements of the crime decided by a
jury" (¶ 9).
The court then defined "court of competent jurisdiction" as "a court
that had both the power to exercise subject matter jurisdiction and the
personal jurisdiction to issue a support order. The personal
jurisdiction requirement in turn encompasses the requirement of adequate
notice" (¶ 16).
The court also addressed the issue of the litigation of the "court of
competent jurisdiction" element. "We are aware that subject matter
jurisdiction and personal jurisdiction may be difficult concepts for a
jury to grasp. Our decision means the State might be required to provide
expert testimony on the question of competent jurisdiction, particularly
where an out-of-state order is involved. See Witt v. Realist,
Inc., 18 Wis. 2d 282, 289-90, 118 N.W.2d 85 (1962) (foreign law is
to be proven as other facts and expert testimony on the subject is
permissible). In the typical case, however, we are confident that a
trial court could give adequate instructions to guide the jury as to
whether an order was issued by a court of competent jurisdiction. That
is, the court could properly instruct the jury as to the relevant law.
The jury could then apply the trial court's explanation of the law in
determining whether a court of competent jurisdiction did, in fact,
issue an order requiring the defendant to provide support" (¶
17).
Lastly, the appellate court addressed the issue of authentication of
the support order issued by the Maine court. It looked to Wis. Stat.
section 889.15 as establishing three ways in which an out-of-state order
may be authenticated: "(1) by compliance with the certification
provisions of Wis. Stat. §§ 889.07 and 889.08; (2) by
compliance with the provisions set forth by Congress [in 28 U.S.C.
§ 1728]; or (3) by compliance with the provisions of the state
where the order was issued" (¶ 26).
Firearms - Felons
State v. Thomas,
2004 WI App 115 (filed 18 May 2004) (ordered published 30 June 2004)
A jury convicted the defendant on a count of being a felon in
possession of a gun but found him not guilty of carrying a concealed
weapon. The court of appeals, in an opinion authored by Judge Wedemeyer,
affirmed. The court first held that article I, section 25 of the
Wisconsin Constitution did not repeal Wis. Stat. section 941.29, which
criminalizes a felon's possession of a gun. The defendant's arguments
were predicated on "inaccurate historical methodology" and erroneous
legislative history. Second, section 941.29 was not unconstitutionally
vague and overbroad. As to the vagueness challenge, the court found the
statute to be "clear and sufficient" (¶ 18). Rejecting the
defendant's overbreadth challenge, the court explained that "the
legislature determined as a matter of public safety that it was
desirable to keep weapons out of the hands of individuals who had
committed felonies" (¶ 23).
Third, the court also rejected an array of imaginative equal
protection arguments based on distinctions between felons and
"misdemeanants" and between violent and non-violent felons and on a
statutory exemption for correctional officers employed before 1982.
Finally, the court declined to grant a motion for a new trial in the
interest of justice based on alleged "inconsistent" verdicts.
Judge Schudson concurred but declined to join the majority's
opinion.
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Criminal Procedure
Hearsay - Confrontation
State v. Manuel,
2004 WI App 111 (filed 27 May 2004) (ordered published 30 June 2004)
A jury convicted the defendant of a number of serious, violent
felonies related to a shooting. On appeal he raised issues regarding the
admissibility of hearsay evidence and ineffective assistance of
counsel.
The court of appeals, in an opinion authored by Judge Deininger,
affirmed the convictions. First, the trial court properly admitted, as
statements of recent perception, hearsay statements by an accomplice to
the effect that the defendant had shot the victim. See Wis.
Stat. § 908.045(2). The rule's requirement that the declarant make
the statement in "good faith, not in contemplation [of litigation]" was
amply supported by evidence that the accomplice's purpose was to
convince his girlfriend to flee with him to a hotel after the
shooting.
Second, and more important, the court of appeals addressed the
confrontation right in light of Crawford v. Washington, 124 S.
Ct. 1354 (2004), which replaced the previously prevailing approach with
one that distinguishes between testimonial and "nontestimonial" hearsay.
The court held that the accomplice's statement fell into the
nontestimonial hearsay category because it was not made to a government
agent or in a formal proceeding, as explained by Crawford.
Nontestimonial hearsay may be used against a defendant at trial
(unlike "testimonial" hearsay), but the court of appeals, proceeding
from an "abundance of caution" (¶ 23), further applied the
pre-Crawford confrontation test, which requires the prosecution
to make a good faith effort to produce the declarant at trial and to
demonstrate the hearsay's "reliability." On the record before it, the
court found that the statement satisfied this test as well (¶
28).
Finally, the defendant was not denied effective assistance of counsel
just because his attorney failed to introduce evidence that the
accomplice had prior convictions.
Discovery - Exclusion of Evidence for Failing to Provide Discovery -
Admissibility of Excluded Evidence in Subsequently Refiled Case
State v. Miller,
2004 WI App 117 (filed 6 May 2004) (ordered published 30 June 2004)
The defendant was charged with a criminal OWI offense. The circuit
court excluded certain of the state's evidence as a sanction for a
violation of the discovery statute (Wis. Stat. § 971.23). The state
then moved to dismiss the case and the court granted the motion without
prejudice. The state then refiled the charge and the defense moved to
exclude the same evidence, even though it was now in the defendant's
possession, because of the decision in the first action to exclude that
evidence. The circuit court denied the motion and the defendant was
convicted.
In a decision authored by Judge Vergeront, the court of appeals
affirmed. "The first sentence of Wis. Stat. § 971.23(7m)(a) plainly
requires the court to exclude evidence not presented as required by the
section if good cause is not shown. If good cause is shown, the court
may exclude the evidence but it is not required to do so; it may instead
grant the opposing party a recess or continuance, as provided in the
second sentence. There is nothing in the paragraph to suggest that the
legislature intended to prevent the offending party from introducing the
same evidence in a subsequent proceeding if there was no violation in
that proceeding of the party's obligations under § 971.23.
Similarly, there is nothing in this paragraph to suggest that the State
may not obtain a dismissal of charges after evidence is excluded under
this paragraph and then refile the charges" (¶ 10) (citations
omitted).
The appellate court also rejected defense arguments that the equal
protection clause and the doctrines of issue preclusion, claim
preclusion, and estoppel by record required the evidence to be excluded
in the refiled case.
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Employment Law
Non-Compete Clause - Choice of Law
Beilfuss v. Huffy
Corp., 2004 WI App 118
(filed 12 May 2004) (ordered published 30 June 2004)
Beilfuss worked for the Huffy Corporation, which is based in Ohio.
His employment contract included a noncompetition clause and choice of
law and forum provisions. After Beilfuss left Huffy to work for another
corporation, Huffy notified him and his new employer that he was in
violation of the Huffy contract. Beilfuss filed this declaratory
judgment action in a Wisconsin court seeking to have the contract
declared null and void. Huffy moved to dismiss because the contract
provided that Ohio law governed the issues and any litigation must occur
in Ohio courts. The circuit court essentially granted Huffy's motion.
See ¶ 4.
The court of appeals, in an opinion written by Judge Anderson,
reversed. Relying on the "strong public policy" embodied in Wis. Stat.
section 103.465, which invalidates unreasonable restraints on employees,
the court held that the clauses in question violated Wisconsin law
(¶ 16). For example, Ohio law, unlike Wisconsin law, permitted
"selective enforcement or judicial modification of an unreasonable
covenant" (¶ 15). And "because the choice of law provision is
invalid, the enforcement of the forum selection would be unreasonable."
See ¶ 16. For "practical reasons" it made good sense "to
have a court familiar with Wisconsin statutory and common law covering
covenants not to compete apply the law rather than a court in another
forum which is unfamiliar with Wisconsin's law or public policy" (¶
18).
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Family Law
Termination of Parental Rights - Failure to Visit or Communicate
with Child - Adjudication of Paternity after Period of
Noncommunication
State v. James P., 2004 WI App 124 (filed 11 May
2004) (ordered published 30 June 2004)
The appellant's parental rights were terminated after the trial court
found in a bench trial that he had abandoned his child by having no
contact with her during two eight-month periods in 2000 and 2001 and
that there were thus grounds to terminate his parental rights pursuant
to Wis. Stat. section 48.415(1)(a)3. Under this statute, parental rights
can be terminated if the child in question "has been left by the parent
with any person, the parent knows or could discover the whereabouts of
the child and the parent has failed to visit or communicate with the
child for a period of 6 months or longer." On appeal the appellant
argued that this statute did not apply to him on the ground that he was
not the girl's "parent" during the periods at issue because he was not
adjudicated as her father until 2002.
In a decision authored by Judge Fine, the court of appeals affirmed
the circuit court. The statutory definition of "parent" includes a
child's biological parent. See Wis. Stat. § 48.02(13). The
court concluded that the fact of biological parenthood "does not turn on
whether it is recognized, found, or adjudicated ...." (¶ 4). The
appellant "was always [the girl's] biological father, even
before he was formally adjudicated as such" (¶ 5).
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Juvenile Law
Violations of Dispositional Orders - Sanctions for "Incidents" in
Which Conditions of Dispositional Orders are Violated
State v. Ellis H., 2004 WI App 123 (filed 19 May
2004) (ordered published 30 June 2004)
This case concerns sanctions for violations of the conditions of
dispositional orders in juvenile cases and whether those sanctions can
be imposed for each violation or, alternatively, whether they are
limited by the number of incidents in which the violations occur without
regard to the number of violations.
Wis. Stat. section 939.355 (6)(d) provides that "[i]f the court finds
by a preponderance of the evidence that the juvenile has violated a
condition of his or her dispositional order, the court may order any of
the following sanctions as a consequence for any incident in which the
juvenile has violated one or more conditions of his or her dispositional
order[.]"
In a decision authored by Judge Brown, the court of appeals concluded
that the language of this statute means that "the court may order a
sanction as a consequence for 'any incident in which the juvenile has
violated one or more conditions of his or her dispositional order.' The
statute therefore clearly recognizes that multiple conditions may be
violated in any one incident but only allows one sanction per incident,
not per condition violation. Stated another way, the statute plainly
anticipates that any incident may consist of more than one condition
violation, but nonetheless informs that only one of a number of
available sanctions may be instituted for an incident. Therefore, to the
extent that the juvenile court's bench decision can be read to say that
the statute allows courts to apply a sanction for each condition
violation, we respectfully disagree" (¶ 7).
The court provided guidance for determining the number of incidents
for which sanctions may be imposed. "[T]he proper question to ask when
determining whether a juvenile's conduct constitutes separate
'incidents,' or separate units of experience permitting multiple
sanctions, or a continuous 'incident,' or a single unit of experience
permitting only one sanction, is whether the juvenile came to a 'fork in
the road' and nevertheless 'invade[d] a different interest.' This means
we must determine whether the juvenile's course of conduct is marked by
different and distinct volitional acts in between which the juvenile had
sufficient time to reflect and choose to commit himself or herself to a
particular act" (¶ 21).
"If the juvenile comes to the 'fork in the road' and his or her
intent is to 'invade a different interest,' the juvenile has ended one
incident and begun another and the juvenile may be additionally
sanctioned for a subsequent condition violation. On the other hand, if
the juvenile comes to the 'fork in the road' and does not intend to
'invade a different interest,' the incident is still ongoing and all
subsequent condition violations are incidental to or are part and parcel
of that same incident and only one sanction is permitted" (¶
22).
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Torts
Statutes of Limitation - Mental Condition
Walberg v. St. Francis Home
Inc., 2004 WI App 120
(filed 4 May 2004) (ordered published 30 June 2004)
The circuit court dismissed negligence and breach of contract claims
against a nursing home on the ground that they were time-barred under
Wis. Stat. section 893.22. The court of appeals, in a decision authored
by Chief Judge Cane, reversed. "Here, Wis. Stat. §893.22 does not
apply because Yox's claims could not have had less than one year
remaining on their periods of limitations. It is undisputed that Yox
suffered from a mental illness at the time her claims accrued and,
therefore, Wis. Stat. § 893.16 tolled her claims' periods of
limitations" (¶ 8). "When a person's mental disability does not
cease, Wis. Stat.
§ 893.16(1) provides that the underlying period of limitations
remains tolled, but cannot be extended for more than five years. Thus, a
disabled person has up to eleven years to commence a contract action and
up to eight years to commence a negligence action for injury to the
person" (¶ 9).
Because the parties agreed that Yox's claims accrued in December
1996, her estate had until December 2007 to bring the contract claim and
until December 2004 to bring the tort action. See ¶ 10.
The court declined to decide whether Yox's death in August 2000
constituted a "cessation" of her disability because both the contract
and tort actions would still be considered timely filed even if the
disability was considered to have ceased at Yox's death. See
¶ 13.
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Wisconsin Lawyer