Vol. 77, No. 4, April 2004

Letters

• Adding to the Factors in the Punitive Damages Equation
• Domestic Abuse Laws Should Hold Abusers Accountable
• DA Questions Dues Benefit

Adding to the Factors in the Punitive Damages Equation

I write to address several points made in the February 2004 article, "Balancing Punitive Damages." The authors analyze the post-verdict review of punitive damages in the wake of the Campbell U.S. Supreme Court decision and the Trinity Wisconsin Supreme Court decision, but in doing so, the authors' treatment and explanation of Trinity needs clarification.

Specifically, the authors state that Trinity dealt with the issue of failing to notify an insured of a "mutual" mistake in an insurance contract. As the Wisconsin Supreme Court recognized in its decision (at footnote 4), however, this was not a mutual mistake in the common sense of the term, because there was no error or mistake on the part of Trinity, the insured. Instead, this was a case in which the insured clearly wanted a specific coverage and communicated that desire to the insurer through the insurer's agent (and, in fact, received a binder from the agent specifying such coverage). Unfortunately, however, the insurance agent failed to check a box on an internal form so that the policy came back without the requested coverage. Even after being informed of the error by its agent, however, the insurer initially refused coverage, stating in an internal handwritten note that "...I'm not going to put backdate and add with uncertainty as to possible exposure. We could be facing big dollars due to liab[ility]..."

The insurer's response, coupled with its filing of a summary judgment motion and other factors (including the insurer's failure to properly investigate the claim, its attempt to force the insured to go after the insurer's agent contrary to Wisconsin's Unfair Claims Practices Act, and its involvement and actions in prior similar situations) were all important in the reprehensibility factor relating to the punitive damage determination. A clearer understanding of the facts, therefore, is critical to understand the Wisconsin Supreme Court majority's decision supporting the punitive damage claim. Moreover, it should be noted that the U.S. Supreme Court recently denied the insurer's petition for certiorari in the Trinity case.

Robert E. Holtz
Mequon

The latest decision in the legal odyssey ensuing from the 1989 grounding of the Exxon Valdez in Prince William Sound, In re Exxon Valdez, 296 F. Supp. 2d 1071 (D. Alaska 2004), provides new support for the thesis of our article, "How Much is Too Much? Balancing Punitive Damages," which appeared in the February 2004 issue. Our article posits that, although the U.S. Supreme Court has effectively imposed a "soft cap" on the ratio of punitive to compensatory damages, courts and attorneys alike must also look to the reprehensibility of the conduct in question in litigating and finally deciding just how much of a punitive award is too much.

Judge Holland's Jan. 28, 2004, opinion illustrates this point in a 40-page analysis, which ultimately concludes that the original $5 billion award, although truly "breathtaking," nevertheless withstands constitutional scrutiny given Exxon's highly reprehensible conduct, paired with the incalculable effects that the oil spill has had on the lives and livelihoods of tens of thousands of Alaskans. The opinion represents the third opportunity for the district court to review the jury's 1994 punitive award in light of the U.S. Supreme Court's BMW and Campbell decisions. Although the Court found the $5 billion award justified, it nevertheless remitted the award to $4.5 billion pursuant to the order of the Ninth Circuit in the case.

The Valdez litigation is unique because it combines highly reprehensible conduct with a massive punitive award, a situation that the U.S. Supreme Court has yet to confront, and that may ultimately provide the platform for the Supreme Court's next foray into punitive damage jurisprudence.

Robert L. Gegios
William E. Fischer
Milwaukee

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Domestic Abuse Laws Should Hold Abusers Accountable

The February 2004 article "Trouble Ahead: Wisconsin's New Domestic Abuse Laws" is at best inflammatory and at worst erroneous. It caters to stereotypes about victims to make its point and blames victims for abuse rather than discussing how to hold abusers accountable. The "new" laws referred to in the article became effective in August 2002 and were enacted after vigorous debate and consideration of the very issues raised by the author.

Wisconsin Act 109 gave victims of abuse within dating relationships the ability to seek protection through a domestic abuse restraining order, similar to provisions in the federal Violence Against Women Act and protections offered in more than 30 other states. It is erroneous to state that the law will now "...expose a whole new group of persons to sanctions." Persons abused in dating relations can now and always could obtain harassment restraining orders, thus subjecting their abusers to sanctions. Inclusion of dating relations in domestic abuse restraining order law simply reinforces their purpose: to protect victims against abuse within intimate relationships. The article fails to note that 2001 Wis. Act 109 also added important protections for vulnerable victims: caregivers were added as a category of persons against whom one can now obtain a domestic abuse restraining order and a guardian can now obtain an order on behalf of a ward.

The author confuses criminal remedies and civil remedies. A restraining order is a civil remedy designed to allow a person who is in danger to seek immediate protection. The author's discussion of what laws a person might violate when harassing a victim is separate from the discussion of what protections are available to a victim through a restraining order - the victim has no control over the issuance of criminal charges. The only remedy a victim can seek on his or her own is a restraining order.

In light of the fact that more than 27,000 incidents of domestic abuse and 20 domestic homicides were documented in Wisconsin in 2001, the author's characterization of a four-year injunction as a "shield" belittles victims' life-threatening experiences. Further, as these restraining orders are civil in nature, their remedies are limited to proscribing abusive and harassing behavior and contacts with a victim. The "penalty" for violating a restraining order is arrest.

The article again confuses criminal law with civil law when it states: "By legally equating domesticity with dating, the victim is more readily afforded the protections, such as mandatory arrest, available to victims of domestic violence." The mandatory arrest law, Wis. Stat. section 968.075, describes when arrest is mandated. It does not include dating relations nor can a victim argue to law enforcement that because she or he has a domestic abuse restraining order based on a dating relationship, the protections available under section 968.075 apply. Someday, section 968.075 will likely include dating relations, not because dating is equated with domesticity but because our state takes seriously the safety of those in intimate relations who are being harmed.

The author's concern about application of the definition of "dating relationship" is misplaced. Any statutory definition can require interpretation when applied to a particular set of facts. This is precisely the role of the court - to assess the credibility of witnesses and sort out legal issues. If a party disagrees with this interpretation, he or she can raise these concerns at the injunction hearing, request a de novo review, or appeal the decision.

The author's discussion of advocate privilege is unnecessarily alarmist. Rather than presenting a balanced exploration of this legislation, the impetus behind its creation, and the consequences of its passage, the author's discussion caters to stereotypes and myths about victims of violence. The author ignores a long line of Wisconsin cases that address the issue of confrontation clause rights when victims of violence assert privilege in a criminal proceeding.

The author starts this discussion with a dangerous and ridiculous proposition: victims lie. Attorneys who work with victims of domestic and sexual violence and those whose lives have been personally affected by violence are all too familiar with this type of victim-blaming. In the author's factual scenario, the victim "has greatly exaggerated, even fabricated" portions of the domestic violence complaint to the police. She later recants to a domestic violence advocate and her recantation is undiscoverable thanks to privilege.

These fears are misplaced. For example, the percentage of false reports of sexual assault reports is similar to the percentage of false reports for any other crime. See "Unfounded Cases and False Allegations" for a discussion of this topic. Mental health professionals, prosecutors, workers at domestic violence shelters and rape crisis lines, and victims of domestic and sexual violence paint a much more realistic picture of recantation, a picture that acknowledges rather than minimizes the prevalence of domestic and sexual violence and is based on an understanding of the dynamics of abuse and the cycle of violence.

Many domestic violence victims do not deny their experience outright. Rather, they minimize, deny, or take responsibility for the abuser's behavior. Recantation starts to look different when viewed through this lens. In the confusing aftermath of violence, recantation can occur because: the victim cannot make sense of the fact that someone she or he loved could be violent; the victim feels that this is the best way to guarantee personal safety or the safety of his or her children; the perpetrator seems remorseful and human nature leads us to give second, third, or fourth chances to those we love; or the victim is intimidated by threats. Jailhouse recordings of perpetrator phone calls to victims dramatically underscore the multitude of power and control tactics used by perpetrators that can lead to a recantation. Understood properly, recantation and victim reluctance are about victim survival.

Due to these dynamics, a victim is likely to recant publicly and vehemently. Judges, prosecutors, victim witness staff, and advocates frequently hear entreaties by victims to "drop charges" against a perpetrator. In recognition of the fact that recantation does not mean fabrication, many prosecutors are successfully using law enforcement testimony and witness's testimony to prosecute these cases in spite of a victim's reluctance to testify. These prosecutions hold perpetrators accountable for their actions, halt the cycle of violence, and keep our communities safe and free from violence.

The privilege law recognizes that victims of sexual and domestic violence need a safe space, free from the type of judgment and victim-blaming demonstrated by the author. It recognizes that not all victims can afford therapy, counseling, or the services provided by other privilege-protected relationships. The "trouble" anticipated by the author has not materialized in the 18 months that the privilege has existed.

The author expresses alarm that advocate privilege will erode the defendant's confrontation clause rights. Similar arguments have been raised in response to the perceived conflict between privilege and confrontation clause rights in Wisconsin, and courts have devised a process to resolve this perceived conflict. Under this process, if the defendant is able to overcome an initial materiality threshold, the court conducts an in camera review of the privileged communications to determine what information should be released to the defendant. While practitioners may disagree with these holdings, it is inaccurate to describe this area of law as "uncharted legal territory." See, e.g., State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298; State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (1993). By ignoring this line of cases, the author engages in panic politics.

The author also errs by stating that privilege could somehow prevent a prosecutor from disclosing exculpatory information. The Randall case discusses a prosecutor's duty to comb police files for exculpatory evidence. State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708 (Ct. App. 1995). Prosecutors and victim witness specialists are trained to understand that they must turn over any exculpatory information they receive. Victim witness staff, as agents of the state, cannot guarantee confidentiality of their communications with victims because of Randall, thereby making privilege inapplicable to these communications.

Defense attorneys play a pivotal role in stopping abuse. A defense attorney might consider adding the following to the practice points in the article: Discuss with a client that domestic abuse is a learned behavior that is usually repeated, resulting in high recidivism. If the client takes responsibility for his or her actions and seeks certified batterers' treatment, the cycle of violence could stop, and the victim would not again face the consequences of abuse. This is in the interest of both the victim and the abuser.

The failure to take responsibility for abusive behavior in an intimate relationship can, as it should, result in both criminal sanctions and civil remedies. Wisconsin's constitution and laws acknowledge that victims do have rights. The authors of this letter do not believe that these rights usurp the important protections extended to defendants in criminal proceedings. Our goal is simply to provide safe, victim-centered services and to work toward a safe, sensitive, and informed response to violence.

Tess Meuer, staff attorney, and Mary Lauby, executive director, Wisconsin Coalition Against Domestic Violence;
Eva Shiffrin, staff attorney, and Linda Morrison, executive director, Wisconsin Coalition Against Sexual Assault;
Carmen Pitre, executive director, and Cyrus Behroozi, director of child advocacy, Milwaukee Task Force on Family Violence; and
Laurel Kent, executive director, People Against Domestic Abuse

Response: The article was neither inflammatory nor erroneous. The "dating relationship" addition does indeed expose a new group of persons to sanctions and is not merely a "reinforcement" of existing law but a broad brush that sweeps up the unwary. The letter authors refuse to recognize that while technically "civil," injunctions are really more criminal in nature and are nearly always accompanied by some criminal charge. To assert that a complaining witness has "no control" over the issuance of criminal charges is simply wrong. DAs listen very carefully to what complaining witnesses want and usually won't issue charges or settle cases without their approval.

As to the privilege, it is not "alarmist" to suggest that false accusations are made in courts around Wisconsin every day in the context of divorces, custody battles, spurned lovers, and so on. Fears about false accusations are not "misplaced" - ask anyone who was wrongly accused or convicted. Couple that with the power of the accusation without any corroboration. The authors apparently have blinders on when it comes to balancing the scales of justice - they appear to be advocating a lower burden of proof to accommodate the horror of the conduct - domestic abuse.

Finally, to suggest that defense attorneys should play "a pivotal role" in stopping abuse trivializes the defense function; that is, to demand the highest level of proof from the prosecution. The authors seem to suggest that if an allegation is made, then the attorney should immediately have his or her client plead guilty and never challenge the truth of the allegation. One would certainly hope that no defense counsel would abdicate his or her responsibility to a client in this fashion.

John A. Birdsall
Milwaukee

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DA Questions Dues Benefit

I read with interest George Brown's response to the ADA who questioned what our mandatory State Bar dues are being used for and exactly what benefit the State Bar performs for statewide prosecutors. In his February "Inside the Bar" column, Mr. Brown wrote: "As a publicly employed lawyer, the letter writer receives the benefits of a more manageable caseload because the State Bar has actively lobbied the legislature for more assistant district attorneys, for caseload standards for prosecutors, for more public defenders and for improved salaries for all government lawyers..." In November, Gov. Doyle cut the number of assistant district attorneys in my office by 25 percent (5 to 3.7 - putting us at pre-1988 staffing levels), our salary levels are effectively frozen for four years when you consider we are now contributing towards our health care, and the public defenders in our area transferred a position based on caseload numbers. My office is busier than ever and my staffing levels were higher 16 years ago. The actual facts seem to contradict the statements you made in your letter.

I have a question. Can I get a refund on my dues?

Eric G. Johnson
St. Croix County District Attorney
Hudson

Response: Attorney Johnson's comments reflect the ongoing fiscal crisis in the state of Wisconsin.

Since the early 1990s, State Bar lobbyists have actively lobbied the legislature to improve conditions for the courts, prosecutors, and public defenders. State Bar presidents and other officers have met with Wisconsin governors to convince them of the importance of retaining skilled attorneys in these positions through improved compensation and working conditions. These efforts and others helped result in improved contracts for lawyers throughout state government.

At the beginning of the current legislative session the state was facing a potential $2 billion budget deficit and virtually all legislators and the governor had campaigned on a "no tax increase" platform. With no tax increases, cuts were going to be made to balance the state budget. In January 2003, while Gov. Doyle was formulating his biennial budget proposal, State Bar President Pat Ballman, Jenny Boese (a State Bar lobbyist), and State Bar Public Affairs Director Dan Rossmiller met with Gov. Doyle to urge him to spare the courts, district attorneys, and public defenders from budget cuts.

The State Bar further lobbied Gov. Doyle to veto the 1 percent cut to the district attorney budget that the legislature approved in 2003 Special Session Senate Bill 1. That 1 percent cut affected the DA program budget in the fiscal year that ended June 30, 2003. Despite the efforts of the State Bar and the Wisconsin District Attorneys Association (WDDA), the governor did not veto this cut.

In February 2003, the State Bar's chief lobbyist communicated with Milwaukee County ADA Pat Kenney about the DA program budget and spoke to the lobbyist for the WDDA about how the State Bar could work with the WDDA in addressing cuts to the DA program budget. We have made this overture nearly every budget cycle for the last decade or so. Though this time we were told that the WDDA would get back to us, we usually have been told the State Bar's assistance is unnecessary.

The legislation recently signed into law (Act 129) by Gov. Doyle restores $1 million in funding for the DA program budget and should restore 15 DA positions that were cut in the biennial budget act.

In lobbying, as in trial, neither side always gets what it wants.

George C. Brown
Executive Director, State Bar of Wisconsin

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