Vol. 78, No. 6, June
2005
Supreme Court Digest
This column summarizes all decisions of the Wisconsin Supreme Court
(except those involving lawyer or judicial discipline, which are
digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas
J. Hammer invite comments and questions about the digests. They can be
reached at Marquette University Law School, 1103 W. Wisconsin Ave.,
Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof.
Thomas J. Hammer
Civil Procedure
Claim Preclusion - Special Exception
Kruckenberg v.
Harvey, 2005 WI 38 (filed 14 April 2005)
Harvey (the plaintiff) filed a declaratory judgment action against
Kruckenberg (the defendant). Part of the goal of the action was to
determine the location of the boundary line between the parties'
respective properties. The circuit court granted summary judgment in
favor of the defendant. The court of appeals affirmed.
The supreme court, in an opinion authored by Chief Justice
Abrahamson, reversed and remanded. The issue was "whether the doctrine
of claim preclusion bars the plaintiff's action. The prior action
brought by the plaintiff's predecessor in title against the defendant
was for failing to provide lateral support; the defendant had dug a
ditch. The prior action ended in a judgment of dismissal on the merits.
The plaintiff's present action against the defendant is for trespass and
conversion (the cutting and taking of trees) and for a declaratory
judgment regarding the location of the boundary line between the
plaintiff's and defendant's land" (¶ 2). The court held that "the
case at bar presents a special circumstance to which the doctrine of
claim preclusion will not apply, namely, when a prior action between
parties or their privies does not explicitly determine the location of a
boundary line between their properties, claim preclusion will not bar a
later declaratory judgment action to determine the location of the
boundary line" (¶ 3).
The opinion discusses the doctrinal underpinning of claim preclusion
and its elements, which include: "`(1) identity between the parties or
their privies in the prior and present suits; (2) prior litigation
[that] resulted in a final judgment on the merits by a court with
jurisdiction; and (3) identity of the causes of action in the two
suits'" (¶ 21). The first two elements were undisputed
(see ¶ 23).
The court addressed the third element, which evinces a "transactional
approach" that "is not capable of a `mathematically precise definition'
... Under the transactional approach, the legal theories, remedies
sought, and evidence used may be different between the first and second
actions. The concept of a transaction connotes a common nucleus of
operative facts" (¶ 26). On this record, the earlier litigation and
the present lawsuit enjoyed a "measure of identity of claims [such] that
a judgment in the second in favor of the plaintiff would appear to
impair the rights or interests established in the first judgment"
(¶ 33). Although claim preclusion is undoubtedly a "harsh doctrine"
(¶ 35), exceptions to it are "rare" (¶ 37). The present case
fell within the "special circumstances" exception set forth in section
26(1)(f) of the Restatement (Second) of Judgments, "namely, `the failure
of the prior litigation to yield a coherent disposition of the
controversy'" (¶¶ 38-39). The court precisely defined the
exception's scope: "When an action between parties or their privies does
not explicitly determine the location of a boundary line, the doctrine
of claim preclusion will not bar a future declaratory judgment action to
determine the proper location of the boundary line" (¶ 41).
The supreme court clarified that while "fairness" may play a role in
the treatment of "issue preclusion," it does not play a corresponding
role in claim preclusion. "[T]he policies of finality and repose play a
weaker role in issue preclusion than in claim preclusion. The elements
of issue preclusion are therefore often interpreted with flexibility to
limit issue preclusion and to exclude issue preclusion when its
application would be unfair" (¶ 58). Departing from stare decisis,
the supreme court "disavow[ed] any language in the decisions of the
court of appeals to the extent that the language requires a court to
conduct a `fundamental fairness' analysis in applying the doctrine of
claim preclusion or allows litigation of an otherwise barred claim to
continue simply because in that particular case, application of the
doctrine of claim preclusion might appear unfair" (¶ 62).
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Criminal Law
Obstructing an Officer - "Exculpatory Denial" Exception
State v.
Reed, 2005 WI
53 (filed 27 April 2005)
The defendant was charged with operating while intoxicated (OWI)
(third offense) and obstructing an officer. The latter charge stemmed
from the defendant falsely telling the police officer investigating the
OWI incident that another individual was driving the car. The circuit
court denied a defense motion to dismiss the complaint and, on appeal
from that nonfinal order, the court of appeals affirmed. See State
v. Reed, 2004 WI App 98, 273 Wis. 2d 661, 681 N.W.2d 568. The court
of appeals concluded that the "exculpatory denial" exception to the
obstructing statute set forth in State v. Espinoza, 2002 WI App
51, 250 Wis. 2d 804, 641 N.W.2d 484, which absolves a defendant for
falsely denying guilt of a crime when questioned by police, did not
extend to the circumstances in this case because the defendant did more
than simply provide an exculpatory denial - he gave the officer false
information that another named individual was the driver. In a majority
decision authored by Justice Butler, the supreme court affirmed the
court of appeals.
Wis. Stat. section 946.41 states that "[w]hoever knowingly resists or
obstructs an officer while such officer is doing any act in an official
capacity and with lawful authority, is guilty of a Class A misdemeanor.
... `Obstructs' includes without limitation knowingly giving false
information to the officer . . . with intent to mislead the officer in
the performance of his or her duty including the service of any summons
or civil process." The court of appeals has recognized that "obstructs"
has two meanings: "makes more difficult" and "gives false information
with intent to mislead." See State v. Caldwell, 154
Wis. 2d 683, 454 N.W.2d 13 (Ct. App. 1990). The supreme court
specifically noted that "this case involves obstructing by giving false
information. It does not involve obstructing an officer by making the
performance of the officer's duties more difficult. See Wis JI
- Criminal 1766. As such, our decision today does not overrule, indeed
it does not even implicate, Henes v. Morrissey, 194 Wis. 2d
338, 533 N.W.2d 802 (1995), or State v. Hamilton, 120 Wis. 2d
532, 356 N.W.2d 169 (1984)" (¶ 21 n.3).
Turning to Espinoza and the exculpatory denial exception
recognized therein, the supreme court concluded that "there is no
exculpatory denial exception in the obstructing statute. The statute
criminalizes all false statements knowingly made and with intent to
mislead the police. Although the State should have sound reasons for
believing that a defendant knowingly made false statements with intent
to mislead the police and [that they] were not made out of a good-faith
attempt to defend against accusations of a crime, we conclude that the
latter can never include the former; knowingly providing false
information with intent to mislead the police is the antithesis of a
good-faith attempt to defend against accusations of criminal wrongdoing.
Accordingly, we overrule Espinoza" (¶ 48).
Chief Justice Abrahamson filed a concurring opinion that was joined
by Justice Bradley. Justice Prosser filed a separate concurrence.
Sexual Assault - Therapist
State v.
Delain, 2005 WI 52 (filed 26 April 2005)
The supreme court, in an opinion written by Justice Roggensack,
affirmed the defendant's conviction for sexual exploitation by a
therapist. The issue before the court concerned "whether a finding that
there was `an ongoing therapist-patient ... relationship' during a
therapy session is precluded if the victim was secretly recording that
session in cooperation with police" (¶ 1). The supreme court held
that the element of an "ongoing therapist-patient relationship" under
Wis. Stat. section 904.022(2) is determined under the "totality of the
circumstances" (¶ 24). Among the factors properly considered are
the defendant's state of mind as well as a patient's "secret unilateral
action" (id.).
"Similarly, the explicit remarks of one party to the other regarding
the status of the relationship may be a factor, but not necessarily the
dispositive factor, as proposed by the State. Other factors that may
appropriately enter into the analysis include, but are not limited to:
how much time has gone by since the last therapy session; how close
together the therapy sessions had been to each other; the age of the
patient; the particular vulnerabilities experienced by the patient as a
result of his or her mental health issues; and the ethical obligations
of the therapist's profession" (¶ 24). Finally, the court found
that sufficient evidence supported the jury's finding of guilt.
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Criminal Procedure
Confrontation - Hearsay - Harmless Error
State v.
Stuart, 2005 WI 47 (filed 21 April 2005)
The supreme court, in an opinion written by Justice Bradley, reversed
the defendant's conviction for murder on the ground that the
prosecution's use of a preliminary hearing transcript violated the
defendant's right of confrontation as that right was recently construed
in Crawford v. Washington, 541 U.S. 36 (2004). The supreme
court had, in earlier appeals, upheld the defendant's conviction,
applying the now outmoded pre-Crawford confrontation analysis.
Reversible error occurred under Crawford, however, because the
defendant did not have the opportunity at the preliminary hearing to
cross-examine the witness, his own brother, regarding a potential motive
to testify falsely.
Under Crawford, the preliminary hearing transcript clearly
constituted "testimonial" hearsay (¶ 28). Crawford
mandated that for the state to introduce "testimonial" hearsay against
the defendant, the state must demonstrate the declarant's unavailability
to testify (a fact that was undisputed in this case) and that the
defendant had a "prior opportunity for cross-examination"(¶ 29).
For decades, case law has curbed the scope of cross-examination at
preliminary examinations. In Stuart, the supreme court
underscored that under Crawford, such restrictions may vitiate
the admissibility of such preliminary hearing testimony at the
defendant's later trial.
"Cross-examination at a preliminary examination is not to be used
`for the purpose of exploring the general trustworthiness of the
witness.' Indeed, `[t]hat kind of attack is off limits in a preliminary
hearing setting.' When this restriction is enforced, as it was in the
present case, and the State attempts to use the preliminary hearing
testimony at a later trial, a Confrontation Clause problem
arises"(¶ 31). Although an array of impeaching information was
elicited against the brother at trial (e.g., prior convictions, his
commission of another burglary, drug use, and mental confusion), in the
end what mattered was that "Stuart did not have the opportunity at the
preliminary hearing to question his brother about a potential motive to
testify falsely. Thus, he was unable to elicit evidence that [the
brother] had been facing criminal charges in 1998 when he gave his
statement to police implicating Stuart in the death of Reagles" (¶
35). The remainder of the majority opinion applies Wisconsin's harmless
error standard (see State v. Hale, 2005 WI 7) and is
fact intensive.
Chief Justice Abrahamson concurred and wrote separately to refer the
reader to her own harmless error analysis in Hale. Justice
Prosser concurred yet wrote separately to reference other formulations
of the harmless error standard and to address situations wherein a
defendant may "forfeit" the confrontation right by wrongdoing or
collusion (¶ 60). Justice Butler, also concurring, referenced his
opinion in the Hale case as well.
Justices Wilcox and Crooks filed separate dissents in which they each
joined. Justice Roggensack also joined Justice Crook's dissent, in which
Justice Crooks stated that he would have found the error harmless beyond
a reasonable doubt.
Truth-in-Sentencing - Sentence Modification - Penalty Reduction
under TIS-II Not "New Factor" for Purpose of Modifying TIS-I
Sentence
State v.
Trujillo, 2005 WI 45 (filed 21 April 2005)
The defendant was convicted of burglary for a crime that was
committed while the first phase of Wisconsin's truth-in-sentencing
system (TIS-I) was in effect. Under TIS-I, burglary was a Class C felony
punishable by up to 15 years imprisonment, of which up to 10 years could
be ordered as initial confinement. The judge sentenced the defendant to
eight years of initial confinement followed by five years of extended
supervision. When the second phase of truth-in-sentencing legislation
(TIS-II) took effect on Feb. 1, 2003, burglary was designated a Class F
felony. In the TIS-II felony classification system, a Class F felony
carries a maximum sentence of 12.5 years imprisonment, of which up to
7.5 years can be ordered as initial confinement. Thus, the defendant
received six months more initial confinement for burglary under TIS-I
than would be possible under TIS-II.
The defendant brought a post-conviction motion under Wis. Stat.
section 809.30(2)(h) seeking modification of his sentence on the basis
of what he claimed was the "new factor" of the penalty reduction for
burglary under TIS-II. The circuit court denied the motion. The court of
appeals affirmed. In a majority decision authored by Justice Crooks, the
supreme court affirmed the court of appeals.
A circuit court has inherent authority to modify a sentence. This
power must be exercised within defined parameters, one of which is the
showing of a "new factor." "[T]he phrase `new factor' refers to a fact
or set of facts highly relevant to the imposition of
sentence, but not known to the trial judge at the time of original
sentencing, either because it was not then in existence or because, even
though it was then in existence, it was unknowingly overlooked by all of
the parties" (¶ 13, quoting Rosado v. State, 70 Wis. 2d
280, 288, 234 N.W.2d 69 (1975) (emphasis added)).
In this case the supreme court held that "TIS-II's reduced maximum
confinement for the same TIS-I felony does not constitute a new factor
when a defendant moves for the modification of a sentence imposed under
TIS-I. The legislature has not mandated the retroactive application of
the reduced penalties, but has provided an adequate remedy by enacting
Wis. Stat. § 973.195" (¶ 2). Accordingly, the court concluded
that although the defendant's initial confinement time for burglary
under TIS-I exceeded the TIS-II maximum, this change was not highly
relevant to the imposition of his TIS-I sentence. (Editors'
Note: Section 973.195 is the TIS-II statute authorizing motions for
sentence adjustment after a defendant has served a statutorily specified
percentage of the initial term of confinement. In State v.
Tucker, 2005 WI 46 (digested below), the court held that section
973.195 motions can be made by defendants sentenced under TIS-I.)
In reaching its decision, the court relied on State v.
Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983), and reaffirmed
several cases that have developed "new factor" jurisprudence for TIS-I
sentences, including State v. Torres, 2003 WI App 199, 267 Wis.
2d 213, 670 N.W.2d 400, and State v. Longmire, 2004 WI App 90,
272 Wis. 2d 759, 681 N.W.2d 534. In Hegwood the court held that
the reduction in the maximum penalty is not highly relevant to the
imposition of sentence and thus is not a "new factor" supporting
sentence modification.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley. Justice Butler filed a separate dissenting
opinion.
Truth-in-Sentencing - Wis. Stat. section 973.195 Sentence
Adjustment Applicable to TIS-I Sentences
State v.
Tucker, 2005 WI 46 (filed 21 April 2005)
The defendant was convicted of possessing five grams or less of
cocaine with intent to deliver and felony bail jumping. These crimes
were committed while the first phase of Wisconsin's truth-in-sentencing
system (TIS-I) was in effect. Under TIS-I the cocaine offense was an
unclassified felony punishable by up to 15 years imprisonment, and bail
jumping was a Class D felony punishable by up to 10 years
imprisonment.
The maximum penalties for the charges of which the defendant was
convicted were reduced by the second stage of truth-in-sentencing
legislation (TIS-II), most of which applies to crimes committed on and
after Feb. 1, 2003. Under the applicable TIS-I statutes, the defendant
was sentenced to four years and six months more initial confinement than
would be possible for the same offenses under TIS-II.
The defendant brought a post-conviction motion for sentence
modification. He argued that the reduction in the maximum penalties
under TIS-II constituted new factors for the circuit court to consider
during his sentence modification hearing. He did not seek relief under
the TIS-II sentencing adjustment statute, Wis. Stat. § 973.195
(which permits motions for sentence adjustment after the defendant has
served statutorily prescribed percentages of his initial confinement
term), because he believed that the statute did not apply to individuals
sentenced under TIS-I. The circuit court denied his motion and the court
of appeals affirmed. In a majority opinion authored by Justice Crooks,
the supreme court affirmed the court of appeals.
The first question before the supreme court was whether the reduction
in the maximum penalties the defendant would have faced had he been
convicted under TIS-II constituted a "new factor" that could have formed
the basis for a motion to modify his sentences. Relying on State v.
Trujillo, 2005 WI 45 (summarized above), the court concluded that
"the reduced maximum confinement penalties under TIS-II do not
constitute new factors when a defendant such as [the defendant in this
case] moves for the modification of sentences imposed under TIS-I.
Although [the defendant's] initial confinement time for his TIS-I
felonies exceeded the TIS-II maximum for each sentence, the changes are
not highly relevant to the imposition of his original TIS-I sentences.
The legislature never mandated the retroactive application of the
reduced penalties" (¶ 2).
The court also addressed the question of whether a TIS-I offender can
petition for a sentence adjustment under section 973.195, the sentence
adjustment statute enacted as part of the TIS-II legislation. After
determining that the statute is ambiguous on this issue, the court
concluded that the legislature intended the sentence adjustment
provisions of section 973.195 to apply to TIS-I offenders (see
¶ 22).
Applying this conclusion required the court to deal with the issue
posed by language in section 973.195 that establishes the "applicable
percentage" of the term of initial confinement that must be served
before an adjustment petition can be filed: 85% for Class C, D, and E
felonies and 75% for Class F, G, H, and I felonies. The A-I
classification system was created by the TIS-II legislation, which does
not indicate how to calculate the "applicable percentage" for a TIS-I
sentence.
Responding to this problem, the court found that it is remedied "by
simply applying the TIS-II felony classification under Wis. Stat. §
939.50 to persons sentenced under TIS-I for the limited purpose of
determining the `applicable percentage' of a term of initial confinement
in a Wis. Stat. § 973.195 petition for sentence adjustment. For
instance, [the defendant] was convicted of felony bail jumping, pursuant
to Wis. Stat. § 946.49(1)(b) (1999-2000). At the time he was
convicted, his offense was a Class D felony. However, under TIS-II, the
crime for which [the defendant] was convicted became a Class H felony.
Wis. Stat. § 946.49(1)(b). Thus, while [the defendant] remains
convicted of this classified felony, for purposes of determining what
`applicable percentage' of his term of initial confinement he must serve
in order to be eligible for sentence adjustment, we look to how the
crime for which he was convicted is currently classified under TIS-II.
That `applicable percentage' is then applied to the sentence originally
imposed to determine if he is eligible to file a petition under §
973.195(1g)" (¶ 23).
"While this analytical framework will be effective in most cases
where a TIS-I offender seeks sentence adjustment, we are also sensitive
to the State's concerns as to how this procedure will affect an
individual sentenced for an unclassified felony. However, most of the
persons sentenced for TIS-I unclassified felonies will not encounter a
problem because, like [the defendant's] conviction for possession with
intent to deliver cocaine, almost all of the felonies which were
previously unclassified under TIS-I have now been classified under
TIS-II. Thus, in the vast majority of cases, a court will simply look to
how the previously unclassified crime is classified under TIS-II in
order to determine the `applicable percentage.' There is no reason why
the analysis we set forth today cannot apply to persons falling into
this category" (¶ 24).
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley. Justice Butler filed a separate dissent.
Search and Seizure - Search Incident to Arrest - Probable Cause
for Arrest
State v.
Sykes, 2005 WI 48 (filed 22 April 2005)
Hudson leased an apartment but frequently stayed elsewhere. On one
occasion when Hudson returned to her apartment, she found the defendant
and his girlfriend inside. Hudson said that the defendant refused to
leave, that she never gave him permission to stay in her apartment, and
that she did not want him living there. The landlord obtained Hudson's
permission to enter the apartment and change the locks. At the
landlord's request, a police officer accompanied him when he changed the
locks.
When the landlord and the officer arrived at the apartment, they
found the defendant and others on the premises. When the defendant was
asked for identification, he said it was in his wallet and indicated
that the wallet was under a cedar chest located in the same room. The
officer retrieved the wallet and found in it a plastic bag of crack
cocaine. The defendant was then arrested on drug-related charges. He
moved to suppress this evidence on the ground that the officer did not
have probable cause before the search took place to arrest him for the
drug-related offenses. The circuit court denied the motion. After
pleading guilty to amended charges, the defendant appealed to the court
of appeals, which affirmed the conviction. The court of appeals held
that the search of the wallet was a reasonable search incident to a
lawful arrest.
In a majority decision authored by Justice Roggensack, the supreme
court affirmed the court of appeals. The question before the supreme
court was whether a search incident to arrest is lawful when there is
probable cause to arrest for a crime, a search is conducted before that
arrest, and the suspect is then immediately arrested and charged only
with offenses based on evidence seized during the search.
The court concluded that the search of the defendant's wallet was a
valid search incident to arrest. The officer had probable cause to
arrest the defendant for criminal trespass before the search was
conducted and independent of the fruits of the search. Immediately after
the search, the officer made the arrest. "That the arrest led to
drug-related charges being filed, not to a charge for criminal trespass,
does not negate that probable cause to arrest existed prior to the
search" (¶ 22).
The defendant argued that the search at issue here was not lawful,
because the crime he was arrested for immediately after the search was
different than the crime for which the officer had probable cause to
arrest him before the search. However, said the court, "as long as there
was probable cause to arrest before the search, no additional protection
from government intrusion is afforded by requiring that persons be
arrested for and charged with the same crime as that for which probable
cause initially existed. To conclude otherwise would put form over
substance because [the defendant] could have been arrested for both
criminal trespass and the drug-related offenses; the district attorney
could have decided to prosecute only the drug-related offense, and [the
defendant] would be in the same position as he is in now. The intrusion
on his privacy would have been no different. Accordingly, we withdraw
any language from [State v. Swanson, 164 Wis. 2d 437, 475
N.W.2d 148 (1991)] that could be interpreted to limit the lawfulness of
the search to requiring an arrest for the same crime for which probable
cause existed prior to the search" (¶ 27).
The defendant further urged that the officer's subjective motivations
be examined. This argument related to the fact that there was no
indication that the officer intended to arrest the defendant for
trespassing before the search of the wallet occurred. The court
responded that "whether law enforcement subjectively intended to arrest
[the defendant] for criminal trespass is not the relevant inquiry.
Because an analysis of probable cause to arrest turns on the objective
facts known to the officer, the relevant inquiry is whether the officer
was aware of sufficient objective facts to establish probable cause to
arrest before the search was conducted, as well as whether an actual
arrest was made contemporaneously with the search" (¶ 31).
Chief Justice Abrahamson, joined by Justices Bradley and Butler,
dissented. The Chief Justice believed that the evidence did not support
the majority's inference that the wallet was found within an area under
the defendant's immediate control, which is a requirement for a valid
search incident to arrest under Chimel v. California, 395 U.S.
752 (1969).
Territorial Jurisdiction - Wis. Stat. § 939.03 - Criminal
Evidence - "Residual Exception" to Hearsay Rule
State v.
Anderson, 2005 WI 54 (filed 4 May 2005)
The defendant is charged with the first-degree intentional homicide
of his father. The defendant's father, mother, and brother disappeared
on or about July 2, 1998 after last being seen at their Jefferson County
home preparing for a trip to their cabin in northern Wisconsin. In
December 1999 the father's skeletal remains were found in a remote
county in North Carolina. The cause of death was blunt force trauma to
the head and face. The defendant was originally charged in North
Carolina, but that case was dismissed. He was then charged in Wisconsin
and, at the conclusion of the preliminary hearing, the Jefferson County
Circuit Court bound him over for trial. He appealed to the court of
appeals on the ground that the evidence presented at the preliminary
hearing failed to establish probable cause for Wisconsin's territorial
jurisdiction over the crime and for venue in Jefferson County. The court
of appeals certified the case to the supreme court, which granted
certification.
The court of appeals certified the following question on the issue of
Wisconsin's territorial jurisdiction over the murder: "Whether the mens
rea component of first-degree intentional homicide constitutes a
`constituent element' of that crime within the meaning of Wis. Stat.
§ 939.03(1)(a) (1997-98), such that the state has territorial
jurisdiction over a charge of first-degree intentional homicide if an
individual commits an act in Wisconsin manifesting an intent to kill"
(¶ 2).
The scope of Wisconsin's assertion of territorial jurisdiction over
crime is codified in Wis. Stat. section 939.03, which provides in
relevant part that a person is subject to prosecution and punishment
under Wisconsin law if "the person commits a crime, any of the
constituent elements of which takes place in this state." The defendant
argued that section 939.03(1)(a) requires the state to prove that an
actus reus element of the underlying offense occurred in Wisconsin in
order for this state to have jurisdiction over the offense.
Specifically, with regard to the charge of first-degree intentional
homicide, he contended that the state must demonstrate that the act
causing death occurred in Wisconsin, and he argued that the evidence at
the preliminary hearing was insufficient to prove this.
In a majority decision authored by Justice Wilcox, the supreme court
concluded that "the phrase `constituent elements' in § 939.03(1)(a)
refers to the elements of the underlying offense that the State must
prove beyond a reasonable doubt in order to secure a conviction. A
constituent element of a criminal offense may be either an actus reus
element or a mens rea element. Intent to kill is a constituent element
of first-degree intentional homicide in Wisconsin. Thus, intent to kill
is a constituent element for purposes of § 939.03(1)(a). Further,
we conclude that the State offers sufficient proof that a mens rea
element of first-degree intentional homicide `takes place' in Wisconsin
for purposes of § 939.03(1)(a), if there is proof that the
defendant committed an act in this state that manifests an intent to
kill" (¶ 51).
Applying this standard to this case (although it was ultimately
unnecessary to do so because the supreme court found that the evidence
adduced at the preliminary hearing was sufficient to establish that the
murder probably was committed in Jefferson County), a majority of the
court "believe[d] that the standard we have articulated ...
concerning jurisdiction would be met in this case" (¶ 52). The
evidence presented at the preliminary hearing established a reasonable
inference that the defendant probably formed the intent to kill his
father in Wisconsin and made a phone call on July 2, 1998 from the
family home in Jefferson County to his father at work for the purpose of
luring his father home early in order to murder him. "As such, the phone
call constitutes an act committed in Wisconsin manifesting Anderson's
intent to kill his father" (¶ 52).
The court also concluded that the evidence adduced at the preliminary
hearing, while admittedly entirely circumstantial, was sufficient to
establish probable cause to believe that the defendant killed his father
in Jefferson County. To reach this conclusion the court analyzed the
evidence (detailed at length in the opinion) presented at the
preliminary hearing, including certain hearsay that the court held
should not have been excluded by the circuit judge. This evidence
involved a conversation between the father and a co-worker on April 17,
1998. The co-worker told the defendant's father that one of her sons was
at college and was being very moody. In response, the defendant's father
asked if the co-worker's son had ever threatened her. The father then
told the co-worker that his son (the defendant) had threatened him and
had attacked him one night after work by trying to club him with
something. The co-worker stated at the preliminary hearing that it was
her understanding that the incident had recently occurred, although the
defendant's father did not specifically state when it occurred. She
further stated that the father was very upset and frightened and visibly
shaking when relaying this story.
The circuit court excluded the co-worker's testimony as inadmissible
hearsay, but the supreme court disagreed. While the father's statement
did not qualify as an excited utterance or a statement of recent
perception, the supreme court concluded that it was admissible under the
"residual exception" codified in section 908.045(6) "because it contains
several guarantees of trustworthiness similar to those found in
statements admitted under the excited utterance exception" (¶ 59).
"While [the father's] statement does not technically qualify as an
excited utterance because of the lack of evidence regarding when the
attack occurred, the statement does demonstrate that it was made
spontaneously under a great deal of stress caused by a startling event.
The fact that the statement was made under circumstances similar to
those forming the basis for the excited utterance exception weighs
heavily in favor of its admissibility" (¶ 62).
Justice Bradley filed a concurring opinion that was joined by Chief
Justice Abrahamson. Justice Butler filed a separate concurrence that was
joined in part by Chief Justice Abrahamson.
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Employee Benefits
Pensions - Wisconsin Teachers - "Combined Group" Retirement Plan
- "Formula Group" Retirement Plan
Solie v.
Employee Trust Funds Bd., 2005 WI 42 (filed 19 April 2005)
The plaintiffs, Solie and Baxter, began their teaching careers in
1957 and 1962 respectively and were members of the State Teacher's
Retirement System (STRS) combined group retirement plan, an annuity plan
in which the amount of a teacher's retirement benefit depended on the
amount of deposits and earnings in the teacher's retirement deposit
account. Both the teacher and the state were required to make deposits
into the account. After a teacher left the system, the teacher could
take a separation benefit. To obtain the separation benefit, the teacher
had to sign a "narrow" waiver, which constituted a "full and complete
discharge and release of all right, interest or claim ... to state
deposit accumulations" (¶ 6). Both of the plaintiffs left teaching
and took their separation benefits before the introduction in 1965 of a
new retirement annuity plan known as the formula group plan.
Under the formula group plan, a teacher's retirement benefit is
calculated by a statutory formula that uses, in addition to other
factors, the teacher's creditable service. Creditable service includes
all years the teacher worked while he or she was a formula group member
as well as certain amounts for years the teacher worked while under the
combined group plan or the predecessor separate group plan. A member of
either the combined group or the formula group who ceases to be employed
as a teacher can withdraw any deposits made into the STRS retirement
deposit fund. Unlike a combined group member, however, a formula group
member is required to sign a "much broader" waiver, which provides "a
full and complete discharge and release of all right, interest or claim
on the part of the member to state deposit accumulations and to any
benefit arising under any provisions" of the controlling statutes
(¶ 9). At the time the formula plan was introduced, STRS members
could elect to participate in it, whereas non-STRS members hired after
1965 were required to do so.
The plaintiffs returned to teaching after 1965, and the Department of
Employee Trust Funds (the department) automatically enrolled them in the
formula group, concluding that this was required because they were no
longer STRS members. In 1971, following another withdrawal from
teaching, both plaintiffs took separation benefits and signed the broad
waiver of all claims to STRS benefits that was required under the
formula plan. Both returned to teaching a couple years later (in 1973
and 1974 respectively) and finally retired in 1993 and 1998
respectively. In calculating the plaintiffs' retirement benefits, the
department determined that the plaintiffs were entitled only to
creditable service dating back to when they returned to teaching in 1973
and 1974, respectively, because they signed the broad formula group
waiver when they took their separation benefits in 1971. The department
noted that the 1971 formula group waiver signed by the plaintiffs
surrendered "all right, interest or claim on the part of the member to
state deposit accumulations and to any benefit arising under any
provisions of ss. 42.20 to 42.54." According to the department, the
waiver meant that the plaintiffs' creditable service before 1971 was
extinguished. This resulted in an otherwise reduced retirement
benefit.
The case was before the supreme court on certification from the court
of appeals. The certified question was whether "[the supreme court's]
decision in Schmidt v. Wisconsin Employe Trust Funds Board, 153
Wis. 2d 35, 449 N.W.2d 268 (1990), should be construed to provide
continued State Teacher's Retirement System (STRS) combined group
membership to teachers who withdrew their deposits in the retirement
deposit fund and then returned to teaching after creation of the formula
group" (¶ 1).
In a majority opinion authored by Justice Butler, the supreme court
responded in the affirmative. "[W]e construe Schmidt to provide
continued STRS membership to teachers who were members of the combined
group, withdrew their deposits in STRS, and then returned to teaching
after creation of the formula group. As STRS members, [the plaintiffs]
could have been placed in the formula group only if they had elected to
do so. Because they did not, they remained in the combined group and
consequently should have signed a combined group waiver only in 1971.
Therefore, [the plaintiffs] are entitled to all of their creditable
service consistent with this court's decision in Schmidt"
(¶ 42).
Justice Wilcox filed a dissenting opinion that was joined by Justice
Prosser.
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Family Law
Termination of Parental Rights - Facial Substantive Due Process
Challenge to Wis. Stat. section 48.415 (4)
Dane County Dep't of Human Servs. v.
Ponn P. (In re Termination of Parental Rights to Diana P.),
2005 WI 32 (filed 23 March 2005)
This case involved a facial substantive due process challenge to Wis.
Stat. section 48.415(4). Section 48.415(4) provides that parental rights
may be terminated on the basis of continuing denial of periods of
physical placement or visitation, which shall be established by proving
that "the parent has been denied periods of physical placement by court
order in an action affecting the family or has been denied visitation
under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or
938.365 containing the notice required by s. 48.356(2) or 938.356(2)"
and that "at least one year has elapsed since the order denying periods
of physical placement or visitation was issued and the court has not
subsequently modified its order so as to permit periods of physical
placement or visitation."
In a majority decision authored by Justice Roggensack, the supreme
court explained that the statute serves the compelling state interest of
protecting children from unfit parents. The court then proceeded to
determine whether the statute is narrowly tailored to advance this
interest. The court used a strict scrutiny standard, because the statute
impinges on a person's fundamental liberty interest in parenting his or
her children. The court concluded that on its face section 48.415 is
narrowly tailored to serve the state's compelling interest of protecting
children from unfit parents.
In this case the children's father had argued that "§ 48.415(4)
violates substantive due process because `it does not require any
evidence of parental unfitness.' It is [the father's] contention that
no-contact orders denying physical placement or visitation, such as have
been in effect here, are based on the `best interest of the child,'
pursuant to Wis. Stat. § 48.355(3), rather than on a finding that
the parent is unfit. Therefore, [the father] contends that because these
orders are the sole basis for a finding that grounds exist for
terminating his parental rights pursuant to §48.415(4), the statute
is not narrowly tailored to meet a compelling state interest and
violates his substantive due process right" (¶ 24).
To analyze this contention, the court considered the full statutory
scheme underlying the ground for termination codified in section
48.415(4). That scheme includes the following steps: "(1) there is an
initial decision to hold a child in governmental custody; (2) if the
child is held in custody, then there must be a factual determination
that the child is in need of protection or services before the next step
will be reached; (3) if a child is found in need of protection or
services, then the decision about whether to place the child outside the
parental home is made; (4) if the child is placed outside the home, only
after finding that parent-child visitation or physical placement would
be harmful to the child may a parent be denied visitation and physical
placement; and (5) if an order denying visitation and physical placement
is entered, it must contain conditions that when met will permit the
parent to request a revision of the order to afford visitation or
periods of physical placement. [The petitioner Dane County Department of
Human Services] and the amicus curiae submit that at each of these
steps, findings must be made that reflect on the parent's fitness. We
agree that the statutory step-by-step process that underlies §
48.415(4) is sufficient to show that subsection (4) is narrowly tailored
to advance the State's compelling interest of protecting children
against unfit parents ... " (¶ 26).
Justice Prosser and Justice Roggensack filed separate concurring
opinions. Chief Justice Abrahamson filed a dissenting opinion that was
joined by Justice Butler. Justice Butler filed a dissent that was joined
by Chief Justice Abrahamson.
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Insurance
"Occurrence" - "Loss of Use"
Everson
v. Lorenz, 2005 WI 51 (filed 22 April 2005)
A property owner, Everson, filed a lawsuit against a real estate
developer, Lorenz, which tendered its defense to its commercial general
liability (CGL) insurer, Pekin. Pekin moved to intervene and to
bifurcate the coverage issues. The circuit court later granted Pekin's
motion for summary judgment and found, in effect, that there was no
coverage under Pekin's policy for the complaint and causes at issue and
that Pekin had no duty to defend.
The court of appeals certified three questions to the supreme court:
"(1) Does an alleged strict responsibility misrepresentation and/or
negligent misrepresentation in a real estate transaction constitute an
`occurrence' for the purpose of a commercial general liability insurance
policy such that the insurer's duty to defend the insured is triggered?;
(2) What allegations must a complaint contain to plead sufficiently
`loss of use' within the meaning of a commercial general liability
insurance policy?; and (3) Under what circumstances does a
misrepresentation, negligent or strict responsibility, cause the `loss
of use' of property such that a `causation nexus' is established?"
(¶ 2)
The supreme court, in an opinion written by Justice Crooks, affirmed
the circuit court. The supreme court held that "since there is no
coverage based on Everson's complaint and the language of the Pekin
insurance policy, Pekin has no duty to defend and no duty to indemnify
Lorenz against Everson's claims for strict responsibility and/or
negligent misrepresentation. The alleged misrepresentation was not an
`occurrence' within the meaning of the policy. We hold that Everson must
plead more than `damages' in relation to the misrepresentation claims to
plead sufficiently a `loss of use' under the policy. We further conclude
that since the complaint fails to allege `property damage,' in that
there is no allegation of an `occurrence,' and no allegation of `loss of
use,' there clearly is not a sufficient allegation of `causation nexus.'
The `property damage' was caused by defects in the property, not by any
misrepresentations of Lorenz" (¶ 3).
Lorenz contended that any misrepresentation was an "accident" within
the meaning of the policy. The supreme court, however, had "never
specifically held that strict responsibility and/or negligent
misrepresentation are similar to other kinds of negligence so as to
categorize them as `accidents'" (¶ 18). In prior cases, negligent
injuries were distinguishable from injuries caused by a "`deliberate and
contemplated act initiated at least in part by the actor's negligence at
some earlier point'"(¶ 19). "Accordingly, in this case, we do not
determine that injury or damage prompted from a negligent
misrepresentation is ipso facto caused by `accident,' within the meaning
of commercial general liability policies. We conclude instead that where
there is a volitional act involved in such a misrepresentation, that act
removes it from coverage as an `occurrence' under the liability
insurance policy" (¶ 20).
The court also rejected Lorenz's contention that it had sufficiently
pleaded "loss of use" and "property damage." "Here, Everson's claim does
not amount to anything approaching the uselessness of the property, as
is required to satisfy Pekin's insurance policy provisions. . .. In this
case, Everson testified that his house could have been built where the
foundation was already poured, only the landscaping he desired was
affected. While Everson's property may now be less useful, aesthetic
concerns and landscaping problems do not render the property
useless"(¶ 32).
Justice Butler concurred, joining parts of the majority's opinion and
part of Justice Bradley's dissent. The dissent, which was joined by
Chief Justice Abrahamson, criticized the majority for "skewing the
focus" by "ignoring the `negligent' component of the negligent
misrepresentation" (¶ 43). Justice Bradley's dissent argued that
negligent misrepresentations are "occurrences" within a CGL policy and
that the claim's other elements were properly pleaded.
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Wisconsin Lawyer