The cases listed below will be heard in
the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol.
This calendar
includes cases that originated in the following counties:
Dane
Juneau
Milwaukee
Rock
Waukesha
WEDNESDAY, SEPTEMBER 5, 2012
9:45 a.m.
- 10AP2313 Juneau County Star-Times v. Juneau
County
10:45 a.m.- 08AP1523 Rock-Koshkonong
Lake District, et al. v. DNR, et al.
THURSDAY, SEPTEMBER 6, 2012
9:45 a.m.
- {07AP221 Bostco LLC v. Milwaukee Metropolitan
Sewerage District
10:45
a.m.- {07AP1440 Bostco LLC v. Milwaukee Metropolitan
Sewerage District
11AP1030-CR State v. Gerald D. Taylor
1:30
p.m. - 10AP1366-CR
State v. James G. Brereton
FRIDAY, SEPTEMBER 7, 2012
9:45
a.m. - 11AP277-D Office of Lawyer Regulation v. Nikola P.
Kostich
10:45
a.m.- 11AP1240 Patricia A. Johnson v. Michael R. Masters
1:30
p.m. - {11AP825 Dane County Department of Human Services
v. Mable K.
{11AP826 Dane County Department of Human Services
v. Mable K.
In
addition to the cases listed above, the following case will be decided by the
court based upon the submission of briefs without oral argument:
2010AP2525-D - Office of Lawyer Regulation v. Vladimir M.
Gorokhovsky
The Supreme Court calendar may change between
the time you receive these synopses and when the cases are heard. It is suggested that you confirm the time and
date of any case you are interested in by calling the Clerk of the Supreme
Court at 608-266-1880. That office will also have the names of the attorneys
who will be arguing the cases.
Radio
and TV, and print media wanting to take photographs, must make media requests
72 hours in advance by calling Supreme Court Media Coordinator Rick Blum at
608-271-4321. Summaries provided are not complete analyses of the issues
presented.
(Rev.
8/29/12)
WISCONSIN
SUPREME COURT
WEDNESDAY,
SEPTEMBER 5, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reversed a Juneau County Circuit Court
decision, Judge Charles A. Pollex, presiding.
2010AP2313
Juneau Co.
Star-Times v. Juneau Co.
This open records case examines
whether copies of certain legal bills requested of Juneau County and its clerk
by the Juneau County Star-Times
newspaper are subject to disclosure under the Wisconsin Open Records Law.
Some background: Juneau County
was insured by Wisconsin County Mutual Insurance Corporation (WCMIC) under a
public entity liability policy. The
insurance policy provides that WCMIC shall pay sums that the county becomes
legally obligated to pay as damages as a result of a covered occurrence and
shall also pay attorney fees and related costs in defending against such a
claim. The insurance policy gives WCMIC
the right to investigate any occurrence and settle any claim or suit that may
result even if the settlement amount is exclusively within the insurance
deductible.
As pertinent to this action,
WCMIC retained the Crivello Carlson law firm in October of 2008 to represent
Juneau County Sheriff Brent Oleson in an administrative matter involving
disciplinary proceedings the sheriff had commenced against Deputy Sheriff
Jeremy Haske. WCMIC later retained the
law firm to represent the county in two lawsuits filed by Haske against Juneau
County and Sheriff Oleson.
Crivello Carlson sent all legal
bills for its work on the Haske matters directly to WCMIC. Crivello Carlson did not send the legal bills
to the county. The first time the county
received copies of legal bills from Crivello Carlson was through a Feb. 10,
2010 letter from Crivello attorney Michele Ford to Star-Times reporter Peter Rebhahn in response to a Public Records
request.
On Feb. 7, 2010 Rebhahn wrote to
the Juneau County clerk requesting “access to bills submitted for payment to
Juneau County’s insurer, Wisconsin County Mutual Insurance Corp., by Atty.
Michele Ford, or submitted by her law firm, Crivello Carlson, for services Ford
rendered as counsel to Juneau County Sheriff Brent Oleson in the years 2008,
2009 and 2010.” Ford, on behalf of the county, provided redacted versions of
the legal bills to Rebhahn on Feb. 10, 2010.
The redacted bills showed amounts billed to WCMIC by Crivello Carlson.
On February 16, 2010, the
Star-Times asked for access to versions of the bills without redaction. The
clerk responded on Feb. 17, indicating that the Feb. 10 letter and enclosures
from Ford were intended to be the response from the county to Rebhahn’s
request.
The Star-Times filed an action for mandamus and declaratory relief
against the county seeking disclosure of the redacted portions of the legal
bills. The county filed an answer denying all claims. The parties filed cross-motions for summary
judgment. The circuit court granted the
county’s motion for summary judgment.
The circuit court concluded that the legal bills were not “records”
under § 19.32(2) because they were not created or kept by the county; the legal
bills were not contractors’ records under § 19.36(3) because the bills
concerned a private matter between WCMIC and Crivello Carlson and any
connection between the legal bills and the county’s insurance policy with WCMIC
was tenuous at best; the county did not waive its right to argue that the legal
bills were not records or contractors’ records subject to disclosure under the
Public Records Law; and assuming, arguendo, that the legal bills were records
or contractors’ records, the county properly refused to disclose the redacted
portions on the basis of attorney-client privilege.
The Star-Times appealed, and the
Court of Appeals reversed the circuit court judgment and remanded with
directions for the circuit court to order the county to make unredacted copies
of the invoices available.
The county asserts that the Court
of Appeals’ decision has extended the contractors’ records provision in the
Open Records Law far beyond records produced or collected under a contract with
a municipality. The county says the contract to which it is a party is the insurance
policy, and it is not a party to the contractual relationship between WCMIC and
Crivello Carlson.
The Star-Times says the insurance contract did not specify that the
county was in any way prohibited from obtaining attorney billing invoices
related to covered claims and there was no written contract between Crivello
Carlson and WCMIC. The Star-Times
contends that records produced or collected under a contract entered into by an
authority subject to the Open Records Law must be made available for inspection
and copying to the same extent as if the record were maintained by the
authority.
WISCONSIN
SUPREME COURT
WEDNESDAY,
SEPTEMBER 5, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which affirmed a Rock County Circuit Court
decision, Judge Daniel T. Dillon, presiding.
2008AP1523
Rock-Koshkonong Lake
Dist. v. DNR
This
case, which the Supreme Court previously denied certification, involves a
Wisconsin Department of Natural Resources (DNR) order rejecting a petition to
raise the water levels of Lake Koshkonong. The Supreme Court examines the scope
and authority of the DNR to protect property and public rights in navigable
waters under Wis. Stat. § 31.02(1)and Wis. Admin. Code § NR 103.
Some
background: Lake Koshkonong, a very shallow lake, has approximately
27 miles of shoreline and 3,080
to 4,000 acres of wetlands in and around the lake. About 10 miles
of shoreline is developed predominantly for residential use with some
commercial use. Approximately 12.4 miles
is undeveloped wetland shoreline.
In the mid-1800s, the Wisconsin Territorial Legislature
and afterward the state Legislature, authorized construction of a dam at the
present site of the Indianford Dam, located on the Rock River, which affects
the water levels on the Rock River, Lake Koshkonong, and their
tributaries. The DNR regulates the
operation of the dam pursuant to Wis. Stat. ch. 31 through orders to owners of
dams.
On April 21, 2003, the Rock-Koshkonong Lake District
(District), a public inland lake protection and rehabilitation district
established pursuant to Wis. Stat. ch. 33, filed a petition with the DNR
requesting amendment of a 1991 water level order to allow increased water
levels throughout the year and to eliminate the ordered “winter drawdown.” A majority of residential and business
riparian owners on Lake Koshkonong had supported the District’s petition.
On
April 15, 2005, the DNR issued a decision relating to the operation of the dam
affecting water levels upstream on the Rock River and on Lake Koshkonong. The
District petitioned the DNR for a contested case hearing, along with the Rock River
Koshkonong Association, Inc., and the Lake Koshkonong Recreation Association,
Inc.
The
Division of Hearings and Appeals held the contested case hearing, and after
post-hearing briefing, the administrative law judge (ALJ) issued a decision on
Dec. 1, 2006, denying the petition. The ALJ sustained the DNR’s order
maintaining the summer water levels in the 1991 DNR order and raising the
winter drawdown level by six inches. The decision was subsequently affirmed by
the Rock County Circuit Court and Court of Appeals.
The ALJ
found that Lake Koshkonong is an impaired water body under § 303(d) of the
Clean Water Act, due in part to phosphorus and sediment pollutants,
sedimentation, and loss of habitat. An increase in water level would likely
affect wetlands and cause increased sedimentation, contrary to the Clean Water
Act’s goal of removing impairments in bodies of water listed as impaired.
The ALJ
took into account the riparian owners’ diminished ease of access to the water,
which resulted in the diminished utility of the riparian rights and enjoyment
of their property, thus reducing the value of that property to them. Citing
Wisconsin’s Environmental Decade, Inc. v. DNR, 115 Wis. 2d 381, 340 N.W.2d
722 (1983), the ALJ concluded, however, that indirect economic impacts do not
bear on the statutory standard set forth in sec 31.02(1).
The
District asks the Supreme Court to review:
·
if
the DNR misconstrued the term “protect property” in setting water levels
pursuant to Wis. Stat. § 31.02(1), by ignoring economic effects on property
interests, such as residential values, business income, and public revenue.
·
if
the DNR exceeded the scope of its authority to protect “public rights in
navigable waters” under § 31.02(1), by considering the effects of the water
level order on private wetlands located above the ordinary high water mark?
·
if
the DNR exceeded the scope of its authority by applying Wis. Admin. Code §
NR 103 to a water
level proceeding under ch. 31?
·
what
level of deference, if any, should be accorded the DNR’s interpretation and
application of § 31.02(1)?
The
state argues that the Court of Appeals applied plain statutory language and
well-established case law. It says the
legislature does not intend the DNR to evaluate economic impact when it did not
explicitly or even implicitly provide in § 31.02(1) that the DNR was required
to do so. It points out that no case has
interpreted the plain language to include that requirement confirms that the
District seeks a change that only the legislature can make.
WISCONSIN
SUPREME COURT
THURSDAY,
SEPTEMBER 6, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed in part and reversed in part a
Milwaukee County Circuit Court decision, Judge Jeffrey A. Kremers and Judge
Jean A. Di Motto, presiding.
2007AP221/1440
Bostco v. Milwaukee
Metro
This
case involves allegations of negligent maintenance and operation of the Deep
Tunnel, a massive underground sewage and storm water tunnel operated by the
Milwaukee Metropolitan Sewerage District. At the request of both parties, the
Supreme Court reviews issues related to, among other things, claims for damages
and relief under Wis. Stat. § 893.80.
Some
background: The Court of Appeals affirmed in part, and reversed in part, a
judgment awarding damages and injunctive relief against the District and to the
owners of the Boston Store building in downtown Milwaukee, Bostco LLC and
Parisian, Inc., (collectively, Bostco).
Bostco
claimed that the store’s wooden foundation pilings were damaged as a result of
groundwater seeping away from underneath its property and into the Deep Tunnel,
a portion of which is located 160 feet east of Bostco’s property. Bostco alleged the water table dropped, the
soil settled, and the timber pilings were exposed to air, causing them to shift
and rot, resulting in millions of dollars in damages. A notice of claim was served on the District.
The
District asserted that since the 1950s, the pilings were decaying and 72 of 169
columns were repaired before the tunnel was constructed and 11 were repaired
twice. It argued its state Department of
Natural Resources permit requires the tunnel have a positive inward gradient to
prevent wastewater ex-filtration.
The
circuit court entered summary judgment dismissing Bostco’s inverse condemnation
claim and rejected the District’s § 893.80(4) immunity defense. The circuit
court concluded that § 893.80(4) immunizes municipalities from suits relating
to design, but left them open to suit for negligent maintenance or operation of
public works where a breach of a ministerial duty is alleged. See Milwaukee Metro Sewer District
v. City of Milwaukee, 2005 WI 8, ¶60, 227 Wis. 2d 635,
691 N.W.2d 658 (MMSD).
Bostco
proceeded to trial on July 11, 2006, on negligence and nuisance claims. It prevailed only on negligence. On July 27, 2006, the jury returned a verdict
awarding Bostco $6.3 million in past and future damages (i.e., $9
million verdict, minus the 30-percent contributory negligence finding as to
Bostco). Bostco’s nuisance claim was defeated because the jury found Bostco
failed to prove “significant harm,” despite its finding that Bostco suffered
$2.1 million in past damages attributable to the district.
Both
parties filed and/or re-filed a series of post-verdict motions, which were
considered over time by two different Milwaukee County Circuit Court judges due
to judicial rotation.
On
Sept. 11, 2006, Judge Jeffrey A. Kremers ruled, among other things, that the
District’s post-verdict motion should be granted to reduce the damages to
$100,000 (i.e., $50,000 for Bostco and $50,000 for Parisian) pursuant to
§ 893.80(3), which caps damages on municipal liability for tort claims.
After
post-verdict motions, Bostco argued the jury found the District had negligently
caused it harm, and the evidence demonstrated that if portions of the Deep
Tunnel one-half mile north and one-half mile south of the Boston Store were not
lined with concrete, the timber piles would continue to be harmed. Bostco claimed that after the trial court
imposed the cap on damages, it had no adequate remedy at law.
Ultimately
circuit court Judge Jean W. Di Motto ordered that the District was required to
install a concrete liner in that portion of the Deep Tunnel one-half mile north
and one-half mile south of the downtown Boston Store, at an estimated cost of
$10 million. She appointed a special master to oversee implementation of the
injunctive relief. The order, later
stayed, directed the special master to oversee issues involved in lining the
tunnel. The case was appealed.
The
Court of Appeals rejected the District’s argument that it was immune from
liability for not installing a concrete liner in the portion of the tunnel
located near the Boston Store, once the District had notice of the dewatering
of the aquifer. However, it overturned
the injunction as contrary to § 893.80.
Also, while it held as a matter of law that Bostco prevailed on its
nuisance claim, it concluded the circuit court properly applied the § 893.80(3)
damage cap. It further rejected the
District’s claim that Bostco’s notice of claim failed to substantially comply
with § 893.80(1).
WISCONSIN
SUPREME COURT
THURSDAY,
SEPTEMBER 6, 2012
10:45
a.m.
This is
a certification from the Wisconsin Court of Appeals, District IV (headquartered
in Madison). The Court of Appeals
may certify cases that it believes cannot be resolved by applying current
Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent
law-developing court, often accepts such certifications from the Court of
Appeals. This case originated in Outagamie County Circuit Court,
Judge Dee R. Dyer, presiding.
2011AP1030-CR State
v. Taylor
This
certification examines whether the trial court properly employed the harmless
error doctrine to deny the defendant’s plea withdrawal motion without a
hearing. More specifically, the District IV Court of Appeals asks the Supreme
Court to resolve a potential conflict between the holdings in State v. Brown,
2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906 and State v. Cross,
2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64.
Some
background: Gerald Taylor was charged with one count of uttering a forgery, as
a repeat offender. Uttering a forgery is a Class H felony, punishable by up to
three years of initial confinement and three years of extended supervision. The
repeater allegation increases the potential initial confinement to five years.
Taylor
pled no contest to the charge, in exchange for the state's recommendation of
probation. At the plea hearing, the
trial court misinformed the defendant that the maximum sentence was six years
rather than eight. The court ultimately
sentenced the defendant to three years of initial confinement and three years
of extended supervision. The defendant filed a post-conviction motion seeking
plea withdrawal, and he requested an evidentiary hearing.
Taylor
argued he was entitled to plea withdrawal because the trial court misinformed
him about the maximum sentence he faced with a repeater allegation. The circuit
court denied the motion without an evidentiary hearing, concluding, as the
state contends, that because the actual sentence imposed did not exceed the
erroneous maximum, any error was harmless.
Taylor
appealed, pointing out the potential conflict between Brown and Cross.
In its certification memo,
District IV notes that State v. Bangert, 131 Wis. 2d 246, 389
N.W.2d 12 (1986) held that when a defendant makes a prima facie showing that the court failed to comply with §
971.08(1), Stats., or some other mandated duty to provide the defendant with
information necessary to evaluate whether to enter a plea, and the defendant
also alleges a failure to understand the information that should have been
provided, the defendant is entitled to an evidentiary hearing at which the
state has the burden of showing that the plea was in fact entered knowingly,
voluntarily, and intelligently. District
IV notes that Brown and Cross address the application of Bangert
to cases where a defendant claimed to have been misinformed about the potential
penalty.
District IV says that following
either Brown or Cross here could arguably lead to different
results. It notes that as in Brown,
this defendant was told he faced a lesser punishment than the law actually
provided, but the sentence that was imposed did not exceed the amount of time
the trial court had erroneously informed the defendant he was facing.
In contrast, District IV says the
Cross court’s discussion seems to suggest that the due process concerns
implicated whenever a defendant has erroneously been informed that the penalty
is less than the actual maximum might require a hearing to determine whether
the defendant was aware of the actual penalty he faced.
District IV says assuming the
harmless error doctrine can properly be applied to a plea withdrawal motion
before holding an evidentiary hearing, the question then becomes whether the
failure to advise the defendant about a charged penalty enhancer constitutes a Bangert
violation and, if so, whether that error becomes harmless if the trial court
does not actually impose an enhanced sentence.
A
decision by the Supreme Court could harmonize the law in this area.
WISCONSIN
SUPREME COURT
THURSDAY,
SEPTEMBER 6, 2012
1:30
p.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Walworth County Circuit Court
decision, Judge Michael S. Gibbs, presiding.
2010AP1366-CR
State
v. Brereton
This case examines whether a
defendant’s constitutional right to be free from unreasonable searches and
seizures was violated when police seized his vehicle and covertly installed a
sophisticated real-time GPS tracking device.
Some background: There were a
string of burglaries in the border areas of Rock and Walworth counties in the
fall of 2007. On Oct. 5, 2007, the
police stopped a Pontiac that had reportedly been seen in the area around the
time of some of the burglaries. The police later admitted that the reason for
the stop was a pretext because police had decided to place a GPS monitoring
device on the vehicle.
During the stop the police
discovered that the two individuals in the car (one of whom was James G.
Brereton) both had revoked drivers’ licenses and that the license plates on the
car had been issued for a different vehicle. The police transported Brereton
and the other occupant away from the vehicle for a time, and surreptitiously
towed the vehicle to a police impound lot.
After the vehicle had been moved,
the police applied for a warrant to place a GPS unit in the vehicle. Based on
an affidavit signed by a detective, Walworth County Circuit Court Judge James
L. Carlson granted the application and issued a warrant/order authorizing the
Walworth County Sheriff’s Department “to place an electronic tracking device”
on the Pontiac and to enter and re-enter the vehicle or any building containing
the vehicle to install, use, or maintain the device or to monitor the location
and movement of the target vehicle.
The warrant/order further
authorized the sheriff’s department “to obtain and use keys to operate and move
the vehicle for the required time to a concealed location
and . . . to open the engine compartments and trunk areas
of the vehicles to install the devices.”
The police entered the interior
of the vehicle in order to activate the hood release lever and placed the
advanced GPS-tracking device inside the engine compartment. After the vehicle
was returned to its original location, the police brought back the two
occupants, who were not advised that the vehicle had ever been moved or the
tracking device installed.
Four days after the device had
been attached to the Pontiac, the police determined that the Pontiac had been
near the site of a reported burglary.
They later stopped the vehicle and arrested the occupants, including
Brereton, on suspicion of engaging in burglary and found evidence from a home
that had been burgled.
Brereton moved to suppress the
evidence obtained as a result of the use of the GPS tracking device. The circuit court denied the motion. Brereton subsequently pled guilty to five
counts of burglary and later appealed.
The Court of Appeals concluded
that the warrant had been validly issued, and that the police had probable
cause to believe that the Pontiac was evidence of a crime or contained evidence
of a crime when police seized and “searched” it.
Brereton
asserts that the police acted unreasonably in executing the warrant because the
device they used exceeded the scope of the warrant application and the warrant
itself. Brereton emphasizes that the court’s order stated in several places
that it was based upon the detective's affidavit, which described a GPS device
that did not provide real-time data.
WISCONSIN
SUPREME COURT
FRIDAY,
SEPTEMBER 7, 2012
9:45
a.m.
The
Wisconsin Supreme Court is responsible for supervising the practice of law in
the state and protecting the public from misconduct by lawyers. Lawyers must follow a code of ethics
developed by the Court. When there is an
allegation that a lawyer has acted unethically, the Supreme Court’s Office of
Lawyer Regulation (OLR) investigates, and, if warranted, prosecutes the
attorney. A referee - a court-appointed
attorney or reserve judge - hears the discipline cases and makes
recommendations to the Supreme Court.
The lawyer involved in this case has a practice in Milwaukee.
2011AP277-D
Office of
Lawyer Regulation v. Nikola P. Kostich
In this case, attorney Nikola
Kostich has appealed the referee’s recommendation that his license to practice
law in Wisconsin be suspended for 60 days for three counts of professional
misconduct.
Kostich has been licensed to
practice law in Wisconsin since 1970 and practices in Milwaukee. Kostich has
received three prior public reprimands for professional misconduct:
The
misconduct alleged in the OLR’s complaint arose out of his representation of L.
P., who was indicted in August 2006 on federal charges pertaining to
distribution of crack cocaine. L.P. hired Kostich to defend her in August 2006
and paid him a $4,000 retainer. Between August 2006 and November 2008 L.P. and
Kostich had various communications, either in person or by telephone, regarding
possible plea agreements. L.P. did not want to enter a plea to any sort of drug
trafficking charge and hoped to be able to plead to a misdemeanor rather than a
felony.
In late 2008, Kostich experienced
serious health issues that resulted in his absence from his law office from
mid-November 2008 until early February 2009. He had lost his secretary a few
months earlier and during his absence his daughter came in to serve as a
part-time paralegal/secretary. Kostich said he instructed his daughter to tell
clients who called that he was out of the office and would not be back for
several months. L.P. said that between November 2008 and February 2009 she
tried to contact Kostich approximately 50 times but he never responded and
Kostich’s daughter never said that he was experiencing serious medical problems
or that he was going to be out of the office. L.P.’s mother also said she tried
to contact Kostich approximately 15 times and also got no response.
In
February 2009 L.P. said she wanted to terminate Kostich’s representation and
asked for a partial refund of the retainer paid. Kostich formally withdrew as
L.P.’s counsel in early March 2009. L.P. then secured the services of a public
defender and entered a plea to the lowest felony charge available. Kostich did
not refund any portion of the $4,000 retainer and claimed he had earned all of
it.
The OLR’s complaint alleged that
Kostich failed to keep L.P. reasonably informed about the status of her case,
failed to promptly comply with reasonable requests for information, failed to
promptly respond to L.P.’s request for information concerning fees and
expenses, and failed to withdraw from representation when discharged by
L.P.
The referee found that the OLR met its burden of proof as to all
counts of misconduct. The referee recommended that Kostich’s license be
suspended for sixty days and that he be required to pay the costs of the
proceeding. The referee noted that Wisconsin adheres to a system of progressive
discipline, and Kostich has been the subject of three prior public reprimands.
Kostich has appealed, arguing that two of the counts of misconduct are
multiplicitous and that he should receive a fourth public reprimand rather than
a 60-day suspension.
The Supreme Court is expected to
decide whether Kostich engaged in misconduct and, if so, the appropriate
sanction.
WISCONSIN
SUPREME COURT
FRIDAY,
SEPTEMBER 7, 2012
10:45
a.m.
This is
a certification from the Wisconsin Court of Appeals, District II (headquartered
in Waukesha). The Court of Appeals
may certify cases that it believes cannot be resolved by applying current
Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent
law-developing court, often accepts such certifications from the Court of
Appeals. This case originated in Waukesha County Circuit Court,
Judge Kathryn W. Foster, presiding.
2011AP1240
Johnson
v. Masters
This certification, arising from
a divorce judgment entered more than 20 years ago, examines Wis. Stat.
§ 893.40, the “statute of repose.”
More specifically, the Court of
Appeals has asked the Supreme Court: When a wife seeks to obtain a pension
award by submitting a qualified domestic relations order (QDRO) as required by
the divorce judgment, and the submission is approximately one year after the
former husband retires, but more than twenty years after the divorce judgment,
is this an “action” which is barred by the statute of repose, Wis. Stat.
§ 893.40?
Some background: Patricia Johnson
and Michael Masters initiated divorce proceedings in 1989. They entered into a marital settlement
agreement that awarded to Johnson one-half of Masters’ pension (valued up to
the date of the divorce judgment). The
agreement further stated that “[a] QDRO shall be submitted to secure these
rights.”
At the time the divorce judgment
was entered in July 1989, the Wisconsin Retirement System (WRS), which
administered Masters’ pension, did not recognize QDROs. No QDRO was submitted
at the time of the divorce, or for many years thereafter.
Masters retired in 2009. On March 5, 2010, Johnson submitted a QDRO to
the circuit court – 20 years and seven months after the date of the divorce
judgment. Masters objected and sought to
dismiss Johnson’s motion as being barred by the 20-year statute of repose.
The circuit court granted the
motion to dismiss. Relying on Hamilton
v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832, it concluded that
the submission of the QDRO was an action to enforce the 1989 divorce judgment
that was filed more and 20 years after the entry of the judgment. It construed Johnson’s argument as being that
the right to a QDRO had not accrued until Masters had retired and rejected that
argument based on the statement in Hamilton that statutes of repose
apply regardless of when a cause of action has accrued.
In certifying the case, the Court
of Appeals identifies five “concerns” or issues regarding whether Hamilton
truly should apply to the present case:
·
Whether
the submission of the QDRO constituted an “action” on the divorce judgment
under the language of Wis. Stat. § 893.40 since it did not involve the
filing of a summons and complaint.
·
Whether
Hamilton should apply here because that case involved a third party (the
state of Wisconsin) filing an action to collect child support arrearages, while
the present matter involves the same two parties and the same divorce
proceeding.
·
Whether
the statement in Hamilton about statutes of repose not depending on the
accrual of causes of action applies to the vesting of Johnson’s right to a
portion of Masters’ pension, especially when the WRS did not accept QDROs at
the time the divorce judgment was entered.
·
Whether
Hamilton can be applied to this case consistent with Wis. Stat.
§ 753.03, which provides that the circuit courts of this state have the
power to issue writs or orders necessary to carry their judgments into
effect.
·
Whether
Johnson’s attempt to collect on that part of the pension is really an “action”
on the divorce judgment and whether Masters has standing to object to Johnson’s
attempt to collect on the property interest that was legally conferred on her.
WISCONSIN
SUPREME COURT
FRIDAY,
SEPTEMBER 7, 2012
1:30
p.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reviewed a Dane County Circuit Court
decision, Judge Amy Smith, presiding.
2011AP825/2011AP826
Dane Co. Dept. of Human Services
v. Mable K.
This procedurally complex case
examines the appeals process and rules of civil procedure involved when
parental rights are terminated. The Supreme Court is
asked to review whether a parent should be allowed to appeal a circuit court
order entered on remand that denied, in part, a request for a new trial.
Some background: Mable K. has an IQ of 60. She is the mother of Isaiah H. and May
K. Dane
County first took custody of Isaiah on Jan. 24, 2007 when Mable was
taken into custody on a probation hold. The county took custody of May directly
from the hospital after her birth on Nov. 13, 2008. The court entered a
dispositional order placing the children outside the home on June 24, 2009.
On
March 24, 2010, the county filed the termination-of-parental-rights (TPR)
petitions at issue here. As grounds for termination, the County alleged both
abandonment and continuing need of protections or services pursuant to Wis.
Stat. §§ 48.415(1) and (2). On May 24,
2010, the circuit court issued an order compelling Mable K.’s personal
appearance at all court hearings. Her
counsel apparently did not object to this order and did not discuss the
implications of this order with her client.
Mable
K.’s parental rights to both children were terminated following a partial trial
and a default finding on Jan. 3, 2011.
Mable K. appeared at the jury draw and on the first day of trial, but
she did not show up the second day until 10 minutes after the court found her
to be in default.
The
circuit court stated that it found no reason to vacate the default finding.
Mable K. appealed, and on May 18,
2011, Mable K.’s appellate counsel moved the Court of Appeals to remand for a
post-judgment hearing on several counts of alleged ineffective assistance of
trial counsel.
On Aug. 26, 2011, following a
hearing, the circuit court rendered a decision in which it conceded that Mable
K. was denied her right to counsel when the court precluded Mable K.’s lawyer
from offering evidence regarding default.
The court stated that it “should have been allowed to present contrary
evidence at that time as to the grounds for default.”
The circuit court ruled that the
remedy was not a new fact-finding hearing, as requested by Mable K., but rather
returning the case to an earlier stage of testimony to be held in the presence
of the court instead of a jury. The court then vacated the TPR orders in her
oral ruling although the ensuing written order did not vacate the termination
orders.
Mable K. objected to this ruling,
arguing that the circuit court’s refusal to grant her an entirely new
fact-finding hearing would shift the burden of persuasion onto her and that it
was also fundamentally unfair. She
maintains she should be afforded a new trial.
The dispute continued with
filings by each side in both the circuit court and Court of Appeals, arguing
over the proper court and process for the case to be heard. The Court of
Appeals decided that neither side was entitled to
appeal as a matter of right and dismissed the appeals.
Mable K. contends, in part, that
the result of returning the case to an earlier stage is that she must argue
that a default judgment is improper “to a judge who has already denied [her]
the right to counsel and has also determined that Mable K. has failed to prove
prejudice.” Thus, Mable K. contends that fundamental fairness requires an entirely new
fact-finding hearing.
Mable K. contends
that it is impossible to restore her to the position she was in prior to the
denial of the right to counsel. She
explains: “The jury is gone, counsel no longer represents Mable K., and the
witnesses are long gone…”
The county contends that there
are no final orders at this point in this case because the trial court vacated
the TPR orders. The county challenges
the fundamental fairness arguments, particularly related to Mable K.’s right to
counsel, noting that the right to counsel in TPR proceedings is a statutory
right – not based on the Sixth Amendment.
See Wis. Stat. § 48.23(2); In re Brianca M.W., 299 Wis.2d 637,
¶33, 728 N.W.2d 652 (2007).
A
decision by the Supreme Court could clarify the proper mechanism in the event a
party to a TPR proceeding receives an adverse ruling on remand.