Vol. 78, No. 2, February 2005

Supreme Court Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Civil Procedure Criminal Procedure

Municipal Law Prisoners

Civil Procedure

Summary Judgment - Frivolous Appeals

Baumeister v. Automated Prods. Inc., 2004 WI 148 (filed 15 Dec. 2004)

Two workers who were injured at a church construction site sued (among others) Solner, the architect who designed the roof's truss system. The circuit court granted summary judgment in favor of Solner on the ground that he had no duty to supervise the construction site or assure safe conditions. The court of appeals affirmed the grant of summary judgment in Solner's favor but rejected Solner's contention that the appeal was frivolous.

The supreme court, in an opinion written by Justice Crooks, affirmed. First, the court affirmed the grant of summary judgment dismissing the claims against Solner. The record failed to raise any material issue of fact showing that Solner breached any duty arising in tort or under the construction contract. The court's discussion of the tort and contract claims is mostly fact-specific.

Second, the court addressed broader issues involving frivolous claims and appeals, "a serious cause for concern." It held that "[a] frivolous argument in a brief is not enough to find the appeal is frivolous." More to the point, "[t]here is nothing in the language of § (Rule) 809.25(3) that allows a court to determine that an appeal is frivolous, merely because an individual claim or defense is frivolous" (¶ 26). The court noted that the plaintiffs raised legitimate issues regarding Solner's duty of care. The court also held that the same basic approach governs both allegedly frivolous claims and allegedly frivolous appeals, namely, "doubts should be resolved in favor of finding a claim nonfrivolous, unless the claim was brought solely for purposes such as harassment or malicious injury, or without any reasonable basis in law or equity" (¶ 28).

Finally, the supreme court pointedly refused to overrule case law that permits the court of appeals to review a summary judgment ruling while a counterclaim under section 814.025 (the frivolous claim statute) is pending in the circuit court. Solner argued that "this rule deprives an appellate court of the circuit court's decision on frivolousness" (¶ 31). In rejecting Solner's contention, the supreme court explained: "We encourage a party alleging a frivolous claim to move the appellate court to stay the appeal, and retain jurisdiction while the case is remanded for a circuit court ruling on the frivolousness issue. If a party chooses to appeal the circuit court's frivolousness ruling, the appellate court can then combine the initial appeal on the merits with the appeal of the decision of the circuit court on frivolousness" (¶ 32).

Justice Wilcox did not participate. Justice Butler filed a concurring opinion in which he expressed a preference for "a rule that would require claims for attorney's fees to be disposed of before a judgment or order becomes final" but recognized that the controlling precedent held otherwise and that there was presently no need to depart from it.

Top of page

Criminal Procedure

John Doe Investigations - Subpoena for Records

Custodian of Records for Legislative Tech. Servs. Bureau v. State, 2004 WI 149 (filed 15 Dec. 2004)

The Dane County district attorney commenced a John Doe proceeding under Wis. Stat. section 968.26 to investigate the political caucuses that once existed for both political parties in the Assembly and Senate and to investigate whether the relationship of the caucuses to Wisconsin's senators and representatives, or the activities of certain legislators, violated criminal laws. At issue in this appeal was the validity of a John Doe subpoena that was issued to the Legislative Technology Services Bureau for electronically stored communications within its possession.

On June 9, 2004 the Wisconsin Supreme Court rendered a decision in this case. See 2004 WI 65; see also Daniel D. Blinka & Thomas J. Hammer, "Supreme Court Digest," Wis. Law. 34 (Aug. 2004). In response to a motion for reconsideration, the court issued a per curiam opinion in which it denied the motion but withdrew paragraphs 53 to 55 of the original decision and substituted the following in their place:

"¶53 Because a John Doe proceeding is a criminal investigative tool, Unnamed Person No. 1, 260 Wis. 2d 653, ¶22, we turn to Wis. Stat. § 968.135, entitled `Subpoena for documents.' Section 968.135 requires a showing of probable cause to believe that the documents sought by the subpoena duces tecum will produce evidence relevant to potentially criminal activity. While this probable cause determination differs from the purpose for which a John Doe proceeding is commenced, that is, to decide whether there is probable cause to believe that a crime actually has been committed and who committed it, see Reimann, 214 Wis. 2d at 621, 624, the question remains how the probable cause required by § 968.135 may be shown in a John Doe proceeding.

"¶54 In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the United States Supreme Court explained that probable cause, as literally required in the case of a warrant, is shown in the context of a subpoena duces tecum if: (1) the investigation is for a lawfully authorized purpose and (2) the documents requested are relevant to the inquiry. See Walling, 327 U.S. at 209; see also Washington, 83 Wis. 2d at 841. In the case of a John Doe proceeding, the proceeding is lawfully authorized if the judge determines that the complainant makes a threshold showing sufficient to establish that the complainant has an objectively reasonable belief that a crime has been committed. Reimann, 214 Wis. 2d at 623. With this judicial determination, any document requested, in order to be relevant to the inquiry, must focus on the factual assertions made to the judge at the commencement of the proceeding. See Walling, 327 U.S. at 209; Washington, 83 Wis. 2d at 841. The necessary link between the documents requested and the suspected criminal activity under investigation is thus shown, affording probable cause to believe that the documents sought will produce evidence relevant to potentially criminal activity, as required by Wis. Stat. § 968.135.

"¶55 Accordingly, we conclude that any subsequent subpoena duces tecum issued in this John Doe proceeding satisfies the requirements of Wis. Stat. §§ 968.26 and 968.135 and the constitutional concerns regarding an overly broad subpoena explained above, when the affidavit submitted to request the subpoena for documents: (1) limits the requested data to the subject matter described in the John Doe petition, Reimann, 214 Wis. 2d at 622; (2) shows that the data requested is relevant to the subject matter of the John Doe proceeding, Washington, 83 Wis. 2d at 843; (3) specifies the data requested with reasonable particularity, Walling, 327 U.S. at 209; Hale, 201 U.S. at 77; and (4) covers a reasonable period of time, Washington, 83 Wis. 2d at 844. Additionally, all of the communications to the John Doe judge must be made a part of the record. See id. at 824-25."

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

Top of page

Municipal Law

Municipal Trials - Trials De Novo on Appeal

City of Pewaukee v. Carter, 2004 WI 136 (filed 4 Nov. 2004)

Carter received two citations, for operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration. During the municipal court trial, the city called three witnesses who testified and who were subject to cross-examination. At the close of the city's case against Carter, his attorney moved for dismissal on the ground that the city had failed to meet its burden of proof. The municipal court granted the motion.

The city appealed the municipal court's decision and requested a new trial before the circuit court pursuant to Wis. Stat. section 800.14(4), which provides that upon a request from either party to a municipal court action (or on the circuit court's own motion), the circuit court shall order that a new trial be held in circuit court. Carter filed a motion in circuit court to dismiss the city's request, on the ground that the municipal court proceeding was not a "fully litigated" trial and therefore the city did not have the right to request a "new trial" as provided in section 800.14(4). The circuit court granted the motion and the court of appeals affirmed. In a unanimous decision authored by Chief Justice Abrahamson, the supreme court reversed the court of appeals.

The issue before the supreme court was whether a "trial" occurred in the municipal court for the purpose of triggering the city's right to obtain a new trial in circuit court under section 800.14(4). "More precisely, the question is: Did the municipal court proceeding constitute a `trial' under § 800.14(4) when the City presented sworn witnesses, those witnesses were cross-examined by the defendant, and the case was dismissed with prejudice upon the defendant's motion to dismiss at the close of the City's case-in-chief?" (¶ 3)

The supreme court held that the municipal court proceeding in this case constituted a trial under section 800.14(4) because the city presented its case, the defendant had an opportunity to present his evidence (even though he chose not to do so), and the matter was judicially resolved on its merits. "We therefore conclude that the municipal court proceeding in the instant case triggered the City's statutory right to a new trial under Wis. Stat. § 800.14(4). Accordingly, we reverse the decision of the court of appeals and the order of the circuit court and remand the cause to the circuit court to grant the City's request for a new trial" (¶ 4).

Top of page

Prisoners

County Jail Inmates - Liability of County for Medical Costs

Meriter Hospital Inc. v. Dane County, 2004 WI 145 (filed 7 Dec. 2004)

The sheriff brought Gibson, an indigent county jail inmate, to the hospital on Dec. 16, 1998, when Gibson became gravely ill. Some time during the first three days of Gibson's hospitalization, the sheriff informed the local prosecutor and Gibson's parole officer that Gibson had been hospitalized. On Dec. 17, 1998, the Wisconsin Division of Community Corrections cancelled its parole hold on Gibson. The next day the state moved to dismiss the pending charges against Gibson. The circuit court granted the motion, dismissed Gibson's pending criminal charges, and ordered his release from custody. The Department of Corrections followed up with an apprehension request that directed the hospital to contact either the sheriff or a probation agent, so that Gibson could be returned to custody after his release from the hospital. However, when Gibson was released from the hospital, the sheriff did not act on the apprehension request and, in fact, did not take Gibson back into custody until several weeks after his release from the hospital.

Gibson's hospitalization lasted for 34 days with medical bills amounting to $187,000. The county paid approximately $4,500 to cover the first three days of the hospitalization. The hospital then filed suit against the county to recover the remaining amount. A trial was held, and the circuit court ruled that the county was liable to the hospital for Gibson's hospital costs only up to the time the pending charges were dismissed and the parole hold dropped. The court also held that the apprehension request did not alter Gibson's status. The court of appeals affirmed. In a unanimous decision authored by Justice Crooks, the supreme court affirmed the court of appeals.

Wis. Stat. section 302.38 provides in pertinent part as follows: "(1) If a prisoner needs medical or hospital care ... [the] superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment and may transfer the prisoner to a hospital ... making provision for the security of the prisoner. ... (2) The prisoner is liable for the costs of medical and hospital care outside of the jail or house of correction. If the prisoner is unable to pay the costs, the county shall pay the costs in the case of persons held under the state criminal laws or for contempt of court...." (emphasis supplied).

The supreme court concluded that a plain reading of section 302.38 does not require the county to pay Gibson's medical and hospital bills for the period after the parole hold had been cancelled and the circuit court had granted the state's motion to dismiss the pending charges against him. "Gibson lost his prisoner status and was no longer `held' under the criminal laws of Wisconsin, when the circuit court dismissed the charges. We also conclude that Gibson's status did not change when the Department of Corrections issued an apprehension request for him. This request to bring Gibson into custody only had the effect of making him a `potential prisoner,' and did not render him `held under the state criminal laws or for contempt of court,' as set forth in§ 302.38(2). In so holding, we decline to expand the County's liability under § 302.38(1) and require it to pay for all of Gibson's care" (¶ 2).

The court also held that the sheriff satisfied all requisite statutory obligations in this case. Gibson was provided with security pursuant to section 59.27 while he was considered a prisoner, and he was provided with "appropriate care" when he was transferred from the jail to the hospital, as required by section 302.38(1).

Top of page

Wisconsin Lawyer