Wednesday, December 10, 2014

ELECTRONIC SURVEILLANCE AND ONE PARTY CONSENT IN WISCONSIN

BY
HON. JOHN J. DIMOTTO

     With the disclosures by Edward Snowden regarding activities of the NSA, people are much more attuned today about their personal privacy and their right, under the Fourth Amendment, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  In this blog entry, I want to look at Wisconsin's Electronics Surveillance Control Law (WESCL) and One Party Consent.

STATUTORY LAW
968.27 - 968.37

     WESCL was created by ch. 427, Laws of 1969.  It replaced Wisconsin's Wiretapping Law, sec. 885.36.  This WESCL prohibited the admission into evidence of tape-recorded interceptions of telephonic conversations.  In essence, while "interception" via one party consent may be lawful and used by law enforcement in the proper performance of official duties, "admission" into evidence is not, absent interception by authorized means in accordance with the state act.  State ex rel Arnold v. County Court, 51 Wis.2d 434 (1971).  The WESCL has undergone revision multiple times since 1969 and has been construed by case law over the years.  

     Currently, one party consent is addressed in 968.29(3)(b), 968.31(2)(b) and (c) which read:

968.29(3)(b):  Any person who has received, in the manner described under 968.31(2)(b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding ... in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording
968.31(2)(b):  It is not unlawful under 968.28 - 968.37: for a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
968.31(2)(c):  It is not unlawful under 968.28 - 968.37 for a person not acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.

     Under 968.27(12), an oral communication "means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.  Oral communication does not include any electronic communication.

CASE LAW

     In State v. Waste Management of Wisconsin Inc., 81 Wis.2d 555 (1978), The Court held that: 

1)  Evidence obtained by the State by means of illegal electronic surveillance violates the 4th Amendment and must be suppressed.  
2)  One party consent tapes are not searches within the 4th Amendment. 
3)  Taping conversations for one's own protection is legitimate.
4)  One party consent tapes are lawful but not authorized under the WESCL and therefore the tapes cannot be used as evidence in the case in chief.
5)  Though the tapes may not be admissible, a witness's testimony regarding the conversation is admissible.  State v. Smith, 72 Wis.2d 711 (1976).

NB.  This case was subsequently overruled by revisions to WESCL.

     In State v. Gil, 208 Wis.2d 531 (Ct. App. 1997), the Court held that:

1)  Where one party consent was being used in accordance with the WESCL re: offenses delineated in the law, that where during the surveillance law enforcement inadvertently heard information regarding crimes not covered by WESCL, this "plain hearing" allows admission of the surveillance statements.
2)  Plain hearing is an outgrowth of plain view.
3)  Inadvertence or fortuity is a key factor which the court must resolve before employing the "plain hearing" exception to the WESCL.

     In State v. Curtis, 218 Wis.2d 550 (Ct. App. 1998), The Court held that:

1)  While the law in Wisconsin used to be that one party consent tapes were legal only for investigative purposes and not admissible as evidence, they are admissible in drug prosecutions like this case.
2)  Subsequent amendments have further broadened this authorization to all felonies.  1993 Wis. Act 98 and 1995 Wis. Act 30.

     In State v. Riley, 287 Wis.2d 244 (Ct. App. 2005) the Court held that:

1)  The State could use a defendant's outgoing jail calls where the inmate is given meaningful notice that such calls are subject to recording because under these circumstances the defendant's decision to engage in conversations over these phones constituted implied consent.
2)  Interception of such jail calls is lawful and results of interception are admissible in evidence so long as they are authenticated in accordance with 968.29(3)(b).
3)  Jail inmates have no expectation of privacy in calls to non attorneys placed on jail phones.  Their right to privacy is outweighed by the institution's need for safety and security.

     In State v. Christensen, 304 Wis.2d 147 (Ct. App. 2007), the Court held that:

1)  Recording jail calls did not violate WESCL because the defendant was warned about recording and monitoring and implicitly consented by continuing to converse.
2)  A person acting under color of law can intercept calls where prior consent is given to the interception.
3)  The fact that all calls are recorded, including calls to attorneys, does not require suppression of calls with non attorneys.
4)  The general rule of suppression:   items seized within the search warrant scope need not be suppressed simply because items outside the scope of warrant were also seized.  State v. Petrone, 161 Wis.2d 530 (1991).

     In  State v. House, 302 Wis.2d 1 (2007),  the Court held that:

1)  It is error for a trial court to authorize a wiretap for offenses not enumerated in the wiretap statute - 968.28,
2)  However, suppression not warranted where the wiretap did also include enumerated offenses; there was probable cause for enumerated offenses; charges only brought for enumerated offenses.

     In State v. Duchow, 310 Wis.2d 1 (2008):

     In this case, the defendant was charged with Child Abuse.  A tape recorder had been secreted in the child's backpack by parents.  The trial court found that the taped statements were not "oral communications" within the WESCL and admitted them.  The Court of Appeals reversed holding they were lawfully intercepted but not under color of law.  Here, the Supreme Court held that:

1)  Under WESCL, an "oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.  Oral communication does not include any electronic communication,
2)  Reasonable expectation of privacy is incorporated into the statute.
3)  Reasonable expectation of noninterception is not the standard.
4)  Here, the factors do not support that the defendant's subjective expectation of privacy is objectively reasonable. Individuals do not retain an expectation of privacy in threats to harm the person to whom the threat is made.

     In State v. Sveum, 319 Wis.2d 498 (Ct. App. 2009), the Court held that GPS is not an electronic communication.  It is a tracking device which is excluded from WESCL.

     In State v. Ohlinger, 317 Wis.2d 445 (Ct. App. 2009), the Court held that:

1)  One party consent exception to WESCL [968.31(2)(b)] applies when the intercepting person is a police officer and the party to the communication who consents to the intercept is also a police officer.
2)  WESCL governs the lawfulness and use of electronic intercepts of communications.
3)  Under one party consent, contents of interception may be disclosed in a felony proceeding.
4)  One party consent requires that the intercepting person must be acting under color of law.  A police officer can be that person.
5)  Intercepting person and consenting person can both be police officers.
6)  Consent of one person provides a basis for not imposing the warrant requirement.

     In State v. Turner, 356 Wis.2d 759 (Ct. App. 2014), the Court held that:

1)  The ability of a minor to give one party consent to interception of conversations is a question of voluntariness.
2)  In considering the voluntariness of a minor to give one party consent, the court should consider the totality of the circumstances including but not limited to age, intelligence, knowledge and maturity.
3)  A minor's consent must be the product of an essentially free and unconstrained choice.
4)  It is not unlawful for a person "acting under color of law" to intercept a wire, electronic or oral communication where the person is a part to the communication and one of the parties to the communication has given prior consent.
5)  Though a 15 year old cannot consent to sexual acts, a 15 year old can give one party consent to interception.

CONCLUSION

     WESCL puts limitations on electronic surveillance.  However, when there is compliance with the law -- including one party consent -- such surveillance can be both lawful and admissible in a court of law.

Friday, November 28, 2014

FIREARM SURRENDER HEARINGS IN WISCONSIN - MILWAUKEE COUNTY PROCEDURES

BY

HON. JOHN J. DIMOTTO


     In Wisconsin, if a court issues a Domestic Abuse Injunction under 813.12, a Child Abuse Injunction under 813.122, an Individual at Risk Injunction under 813.123 or an Harassment Injunction under 813.125, the court is required to enter an order prohibiting the respondent - the person against whom the injunction is issued -- from possessing any firearms during the time period the injunction is in effect. 

     When one of the above injunctions is issued, the court must give notice to the respondent of: 

1)  The necessity to surrender all firearms; 
2)  The procedure for litigating a firearm surrender hearing: and 
3)  The failure to surrender firearms when ordered by the court may result in being charged with a felony for possessing a firearm under 941.29. 

FILING OF PETITION AND ISSUANCE OF TEMPORARY RESTRAINING ORDER

     The procedures enacted by the Wisconsin Legislature set forth the when the Petition is filed and a Temporary Restraining Order (TRO) issued, it must be served on the respondent.  Accompanying the Petition and TRO are forms regarding: 

1)  The Surrender and Return of Firearms.  (CV-804)
2)  The respondent's statement of possession of firearms.  (CV-800)
3)  Notice of Firearms Possession Penalties.  (CV-432)

INJUNCTION HEARING - RESPONDENT PRESENT
INJUNCTION GRANTED

      If the respondent appears at the injunction hearing and if an injunction is to be issued, the court must determine whether the respondent possesses any firearms.  If the court determines that the respondent does not possess any firearms:

1)  The respondent's statement of nonpossession is filed with the court;
2)  The court issues the injunction forthwith;
3)  The respondent is admonished regarding no firearm possession during the pendency of the injunction.
4)  No Firearms Surrender Hearing is necessary.

     If the respondent appears at the injunction hearing and if an injunction is to be issued, and the court determines that the respondent does possess a firearm or there is evidence that the respondent does possess a firearm:

1)  The court issues the injunction but stays it for up to 48 hours and continues the TRO.  This is done to give the respondent an opportunity to surrender the firearm.  After the expiration of the 48 hours, the injunction goes into effect.
2)  The court clerk fills out an Order for Respondent to Surrender Firearms and Notice of Firearms Surrender Hearing  (CV-803).
3)  A Firearms Surrender Hearing is set on the Judge's calendar within one week of the injunction hearing.  In Milwaukee County, it will be the Civil Daytime Duty Judge's calendar.
4)  The respondent is instructed to surrender all firearms within 48 hours and attend the hearing if the respondent does not timely surrender all firearms in respondent's possession.
8)  Order that the respondent may possess firearms only for the purposes of surrend.
9)  Respondent must surrender all firearms even if respondent will seek a de novo review of the initial decision to issue the injunction.
10)  Respondent is admonished regarding no firearm possession during the pendency of the injunction.
11)  If the respondent wants to surrender firearms to a third party, the respondent and third party must attend the Firearms Surrender Hearing and receive consent of the court.
12)  If firearms are timely surrendered to the Sheriff and a receipt of same is filed with the court before the hearing, the hearing can be canceled.
13)  If firearms are surrendered to any other police agency, the respondent must appear at the hearing the a receipt from that law enforcement agency.

INJUNCTION HEARING - RESPONDENT NOT PRESENT
INJUNCTION GRANTED

     If the respondent was served with the Petition and TRO and is not present at the injunction hearing and an injunction is to be issued and the court determines that the respondent does not possess a firearm:

1)  The court will issue the injunction forthwith.
2)  The Sheriff will serve the injunction upon the respondent.
3)  No Firearms Surrender Hearing will be set.

     If the respondent was served with the Petition and TRO and is not present at the injunction hearing and an injunction is to be issued, and the court determines that the respondent does possess a firearm:

1)  The court issues the injunction but stays it for up to 48 hours and continues the TRO.  This is done to give the respondent an opportunity to surrender the firearm.  After the expiration of the 48 hours, the injunction goes into effect.
2)  Once again, the court clerk fills out form CV-803.
3)  A Firearms Surrender Hearing is set on the Judge's calendar within one week of the injunction hearing.  In Milwaukee County, it will be the Civil Daytime Duty Judge's calendar.
4)  The Sheriff will serve all of the orders and documents generated by the court on the respondent.

     If the respondent was served with the Petition and TRO and is not present at the injunction hearing and the court is uncertain about whether the respondent possesses a firearm:

1)  The court will issues the injunction forthwith.
2)  The clerk will fill out a Notice of Firearms Surrender Hearing - Respondent Not Present at Injunction Hearing  (CV-802)
3)  Sheriff will serve all of the orders and documents generated by the court on the respondent.

FIREARMS SURRENDER HEARING
RESPONDENT PRESENT

     If the respondent does not surrender the firearms to the Sheriff or file a receipt of same with the court, respondent must appear at the Firearms Surrender Hearing.

    If the respondent appears at the Firearms Surrender Hearing and has not surrendered firearms and the court determines that respondent does possess a firearm:

1)  The court should set a deadline for the respondent to surrender the firearms to the Sheriff and, if firearms not timely surrendered, direct the Sheriff to follow p and take possession of firearms.
2)  The court should stay the injunction once again and reinstate the TRO for up to 48 hours to give the respondent time to surrender firearms.
3)  After 48 hours, the injunction is reinstated.

FIREARMS SURRENDER HEARING
RESPONDENT NOT PRESENT

     If respondent was served with notice of the Firearms Surrender Hearing but does not appear and the court determines that respondent has a firearm, the court shall issue a Civil Arrest Warrant with remand to the Civil Daytime Duty Judge upon arrest.

     If respondent was not served and does not appear at the Firearms Surrender Hearing: 

1)  The court should adjourn the hearing for one week to that week's Civil Daytime Duty Judge's calendar --- OR
2)  Refer the matter for immediate follow up investigation.

CONCLUSION

          Injunction circumstances are very volatile and can pose great danger.  It is incumbent on a court dealing with injunction hearings and firearms surrender hearings to take great care in following statutory mandates and procedures.

(All of the forms referenced above, which were created by the Court's Records Management Committee, are available for review and download at the Wisconsin Court's website:  www.wicourts.gov.)

Friday, November 14, 2014

PERSONAL JURISDICTION OVER AN INSURANCE COMPANY IN A PERSONAL INJURY NEGLIGENCE LAWSUIT

Hon. John J. DiMotto

INTRODUCTION

      In many personal injury automobile accident negligence cases that are filed by a plaintiff, the driver of the car who is alleged to be negligent and responsible for the accident has coverage from an insurance company. When the action is filed, an insurance company for an insured can be made a party to the lawsuit in one of two ways:

1)  Where the insured is a party to the lawsuit.
2)   If the conditions precedent for Direct Action against the insurance company are present regardless of whether the insured is a party to the lawsuit.

INSURED IS A PARTY TO THE LAWSUIT

     When an insured is named as a party to a personal injury lawsuit and the court obtains personal jurisdiction over the insured, based on the insurance policy, the insurer is a proper party to the lawsuit and the court obtains personal jurisdiction over the insurer once service of process on the insurer is effectuated. It does not matter whether the insurer issued or delivered the policy in Wisconsin.  It does not matter to what extent, if any, the insurer has its own contacts with the State of Wisconsin.  By virtue of the insurance policy -- the contract of insurance between the insured and the insurer -- the insurer is "tethered" to the insured.  However, what if the insured is not a party to the lawsuit?

DIRECT ACTION AGAINST AN INSURER

     Regardless of whether an insured is made a party to a personal injury lawsuit, an insurer may be made a party to a personal injury lawsuit if:

1)  The insurance policy was delivered or issued for delivery Wisconsin, or
2)   Although the insurance policy was not delivered or issued for delivery in Wisconsin, the accident, injury or negligence occurred in Wisconsin.

Insurance Policy Delivered or Issued for Delivery in Wisconsin

     Chapters 631 and 632 set forth the law in Wisconsin with respect to Insurance Contracts Generally (Ch. 631) and with respect to Insurance Contracts in Specific Lines (Ch. 632).  

     Section 631.01: application of statutes, provides in subsection (1):

This chapter and ch. 632 apply to all insurance policies and group certificates delivered or issued for delivery in this state...

     Section 632.24: direct action against insurer, provides:

  Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death or any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.

     At first glance, one might believe that Section 632.24 is limited by Section 631.01(1) and requires that the policy must be delivered or issued for delivery in Wisconsin in order to allow direct action against an insurance company regardless of whether the insured is a party to the lawsuit.  However, that is not the case. 

     In Casper v. Am. Int'l Ins. Co., 336 Wis2d 267,301 (2011)  the Court set forth:

  ...we hold ... that Wis. Stat. 632.24 applies to any policy of insurance covering liability, irrespective of whether that policy was delivered or issued for delivery in Wisconsin, so long as the accident or injury occurs in this state. 

In a footnote they stated that Wis. Stat. 632.24 has the same reach as 803.04(2).  As a result of this decision, the delivery or issuance of a policy for delivery in Wisconsin is not the exclusive way to bring a Direct Action suit against an insurer.  

Accident, Injury or Negligence Occurred in Wisconsin

     Not only does 632.24 allow for direct action against an insurer if the policy was delivered or issued for delivery in Wisconsin but it also allows for direct action if the accident, injury or negligence occurred in Wisconsin.

     Section 803.04, which discusses permissive joinder of parties, addresses negligence actions with respect to insurers in subsection (2)(a).  This subsection provides:

In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff ... is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured.  If the policy of  insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state.  

While Section 632.24 is a substantive right, Section 803.04(2)(a) is a procedural right.

CONCLUSION

     While in most personal injury negligence cases, the court obtains personal jurisdiction over the insured by virtue of the fact that the plaintiff specifically brings the insured into the lawsuit as a defendant, in those cases where the insured is not a party to the lawsuit, the insurer can be made a proper party if the policy was delivered or issued for delivery in Wisconsin or if the accident, injury or negligence occurred in Wisconsin.
     

     

Tuesday, October 28, 2014

Amendment of Civil Pleadings to Add a Party -- Wisconsin's Relation Back Doctrine

Hon. John J. DiMotto


In Wisconsin, a party may amend the party's pleadings once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order. Otherwise a party may amend one's pleadings only by leave of court or by written consent of the adverse party.  However, leave shall be freely given at any stage of the action when justice so requires. see Wis. Stats. 802.09(1).

An issue does arise when the amendment is filed after the statute of limitations for the action has run.  In this circumstance, a determination must be made as to whether the amendment "relates back" to the date of the filing of the original pleading.  This issue is addressed in Wis. Stats. 802.09(3) and in case law.

802.09(3)

Under 802.09(3), "if the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading.  An amendment changing the party against whom the claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party."   

Is this doctrine straightforward?  Maybe.  Is this doctrine "case specific?  Absolutely.  Does case law give judges and attorney's guidance?  Yes.  Is case law "definitive?"  Nothing in the case law is definitive.

Case Law

Groom v. Professionals Ins. Co., 179 Wis.2d (Ct. App. 1993):  In this case, the plaintiff filed an amended complaint adding a doctor and medical group after the statute of limitations had run.  The court found that 802.09(3) was not applicable because there was no mistake as to the identity of the proper party to allow the relation back.  

Biggart v. Barstad, 182 Wis.2d 421 (Ct. App. 1994):  In this case, the plaintiff filed an amended complaint adding an insurance company with respect to two of its insureds after the statute of limitations had run.  The court indicated that the statute allowing "relating back" [802.09(3)] implicates a notice issue.   The court set forth:  "Adequate notice in the original complaint of the transaction, events occurrence out of which the amended claims arise is essential if a party's statutory right to the protections of the statutes of limitations are to be guaranteed.  Here the court found insufficient notice as to one of the insureds but sufficient as to the second insured.

Grothe v. Valley Coatings Inc., 239 Wis.2d 406 (Ct. App. 2000):  In discussing the Relation Back Doctrine the court set forth that:
1)  Notice is necessary
2)   Basic claim must have arisen out of conduct set forth in the original pleadings
3)   The party knew or should have known that but for the mistake concerning identity,the action would have been brought against it
4)   Conditions 1 and 2 must have been fulfilled within the prescribed limitations period.

Estate of Hegarty v. Beauchaine, 249 Wis.2d 142 (Ct. App. 2001):  In this case, the court indicated that the "changing the party" language in 802.09(3) includes:
1)  Substitution of a new defendant for the present defendant
2)  Addition of a new defendant
3)  Changing stated capacity of the defendant
4)  Changing a misdescription or misnaming of a defendant.
The court set forth that when a plaintiff wants to add a party, in order to do so there must have existed a mistake concerning the identity of the proper party now being added when the original pleading was filed. The court indicated that "identity" is defined as "the collective aspect of the set of characteristics by which 
a thing is definitively recognizable or known. We interpret this to include an individual's name and physical characteristics which, taken as a whole, distinguish that person from another person, signifying their individuality."

Gross v. Woodman's Food Market, Inc., 259 Wis.2d 181 (Ct. App. 2002):    In discussing the relation back doctrine, the court indicated that if the claim asserted in the amendment arises out of the same transaction, occurrence or event set forth in the original complaint, relation back is "presumptively appropriate."  However, the court can deny relation back if it would be prejudicial to the other party.

Bartels v. Rural Mut. Ins. Co., 275 Wis.2d 739 (Ct. App. 2004):  In this case, the court indicated that an amended complaint cannot resurrect an original complaint that was not properly commenced. The court further stated that if a party is given fair notice within the statutory time limit of the facts out of which the claim arises it is not deprived of any protections that the statute of limitations was designed to afford.  The court reiterated that the Relation Back Doctrine has four conditions:
1)  The basic claim must have arisen out of conduct set forth in the original pleading.
2)  The party to be brought in must have received notice so it will not be prejudiced in maintaining its defense
3) The party knew or should have known that but for mistake of identity the action would have been brought
against it and
4)  Most significantly, conditions 2 and 3 must have been fulfilled within the prescribed statute of limitations period.

Dakin v. Marciniak, 280 Wis.2d 491 (Ct. App. 2005):    In this case, the court indicated that adequate notice in the complaint is necessary if the statute of limitations protection is to be guaranteed.  Formal and reasonable notice must be given. The court set forth that constructive notice is not good enough to allow relation back to apply to a new party.  The court also indicated that the discovery rule is not applicable and dthat not all parties must be known before the statute of limitations starts running.

Barnes v. WISCO Hotel Group, 318 Wis.2d 537 (Ct. App. 2009):  In this case, the court found that the relation back doctrine did not apply because the new party added to the amended complaint after the statute of limitations ran had no notice before it ran.  Where there is no notice there is no relation back.

Tews v. NHI, LLC, 330 Wis.2d 389 (2010):  In this case the court set forth that the purpose of the Relation Back statute --  802.09(3) -- is to ameliorate the effect of the statute of limitations in situations where the opposing party has received fair notice of the claim.  The court stated that "pleading should not be a game of skill in which one misstep by counsel may be decisive of the outcome .. therefore, Wisconsin has abandoned the highly formal concepts of common law form pleading in favor of a more functional concept of notice pleading."  When a defendant is added as a party after the statute of limitations has run and all requirements of the Relation Back statute are satisfied - fair notice has been provided and the added defendant has been given full benefit of the protection that the statute of limitations was intended to provide.  The court reiterated that the Relation Back statute requires:
1)  The claim asserted arose out of the same transaction, occurrence or event set forth in the original complaint
2)  Within the time period provided by law for commencing the action the defendant received notice of the institution of the action and that it will not be prejudiced in maintaining a defense on the merits
3)  Within the time period provided by law for commencing the action the defendant knew or should have known that but for mistake concerning identity of proper party that the action would have been brought against the added defendant.
The court went on to indicate that the statute of limitations is not to be used mechanically to prevent adjudication of a claim where real parties in interest were sufficiently alerted to proceedings or were involved in them unofficially from an early stage.  Once the Relation Back Doctrine's  requirements are met, relation - back is mandated.

Wiley v. MMN Laufer Family Ltd Partnership, 338 Wis.2d 178 (Ct. App. 2011):   In this case the court held that suing a business did not give notice to the building owner  that it was a proper party. The facts were not such that the building owner knew or should have known that but for a mistake concerning identity the action would have been brought against it.

Conclusion

A careful examination of case law reveals that the Relation Back Doctrine is all about "Notice."  It is incumbent upon a plaintiff's counsel to undertake a sufficient investigation to uncover the identity of all party defendants before the statute of limitations runs.  In the event counsel is unable to do so, or in the event that counsel is unsuccessful within the statute of limitations, it is critical that an investigation be undertaken to factually establish actual notice of the action by the party to be added before the statute of limitations ran and to factually establish that the party to be added knew or should have known that but for mistake of identity the action would have been brought against it sooner.  

Monday, July 29, 2013

TPR ACTIONS IN WISCONSIN: THE DIFFERENCE BETWEEN INVOLUNTARY AND VOLUNTARY PROCEEDINGS



By:  John J. DiMotto


INTRODUCTION


In Wisconsin, there are two types of termination of parental rights (TPR) cases. First, there can be a government commenced Involuntary TPR action brought by a County District Attorney’s Office or by a County Department of Human Services against a parent who has abused or neglected a child.  Second, there can be a private Voluntary TPR action brought by a parent who makes the decision during pregnancy or shortly after the birth of the child to give the child up for adoption.

All TPR actions are closed to the public under 48.299 and all records of the proceedings are subject to confidentiality under 48.78.  Furthermore, because of the extremely sensitive nature of juvenile court proceedings, including TPR and Adoption cases, any person who divulges any information which would identify the child, the expectant mother or the family involved in any proceeding shall be subject to contempt proceedings under Chapter 785.

INVOLUNTARY TPR ACTION

An involuntary TPR action is a government-endorsed petition that is commenced by a County District Attorney or County Department of Human Services.  This case is commenced when:

1.     **A parent has abused or neglected a child;
2.      **A County Child Protective Services unit has removed a child from the parental home due to the abuse or neglect;
3.      **A court approves the removal and detention of a child and placement in a foster home, group home or home of a relative;
4.      **A court enters an order in a CHIPS (Child in Need of Protection or Services) case setting forth “conditions of return” that a parent must meet in order for the child to be returned to the parent;
5.      **Fifteen months go by and the parent has not met the “conditions of return.”

If an involuntary TPR action is commenced because the parent does not meet the conditions of return, the parent has the right to contest the action.  The parent is entitled to a jury trial or a court trial where a jury or a judge decides whether the DA or the attorney for the County Department of Human Services has proven by clear, convincing and satisfactory evidence the grounds alleged in the TPR petition. The three most common grounds for termination are “Abandonment” under 48.415(1); “Child in Continuing Need of Protection or Services under 48.415(2); and “Failure to Assume Parental Responsibility” under 48.415(6).   

If grounds are proven, the court will then conduct a Dispositional Hearing where the judge alone decides whether or not to terminate parental rights  There is no right to a jury in the Dispositional Phase.  The decision of the court is based on what the judge believes is in the best interest of the child based on all the information brought to the court’s attention. 

If a parent does not come to court to contest the grounds alleged in the involuntary petition, the court can take action against the parent.  The court can enter a “default judgment” against the parent, proceed with a Dispositional Hearing in the absence of the parent and terminate parental rights.  If parental rights are terminated, the child can then be adopted.

VOLUNTARY TPR ACTION

A voluntary TPR action is a private action commenced by a parent who has decided to terminate parental rights.  It is usually a circumstance where a woman during her pregnancy makes the decision to give the child up for adoption.  She must contact an adoption agency and work with the agency to find a suitable couple or person to adopt the child.  Usually, the mother selects the couple or person whom she wants to adopt the child.  The child can be voluntarily placed with a suitable “adoptive couple” or “adoptive person” under a Voluntary Placement Agreement, but the agreement clearly states that the child may be returned to the birth parent at any time upon request of the parent prior to the termination of parental rights.

When a private, voluntary TPR action is filed by a parent, it is necessary for the court to conduct a hearing with the parent to determine whether the decision to terminate parental rights has been made freely, voluntarily, knowingly and intelligently and that the parent has not been coerced in any way.  The parent must come to court to answer the court’s questions. 
 
It is not unusual for a parent to have second thoughts or some hesitation.  Under those circumstances, the  attorney for the “adoptive couple” or “adoptive person” usually asks the court for an adjournment to procure the appearance of the parent so the case can continue.  The court is willing to accommodate such requests for adjournments until the parent is ready to make the final decision.

If the parent wishes to speak with an attorney about the decision, the parent has a right to hire an attorney.  If the parent is indigent, the court oftentimes will appoint a lawyer at county expense to consult with the parent.  The cost is usually minimal – in the range of $300.  This is done because Chapter 48 makes clear, that the court must ensure that the decision made by the parent is truly voluntary.

If the parent absolutely refuses to come to court or if the parent does come to court but ultimately decides not to terminate parental rights, the court must dismiss the action.  The court has no other choice and, in particular does not have the power to convert a private, voluntary TPR action into an involuntary action.  Said otherwise, the court has no power to involuntarily terminate a parent’s rights in a private, voluntary TPR action. 

In those cases where the parent decides not to terminate parental rights, the child must be returned to the parent.  When that happens, it is very sad, even devastating,  for the “adoptive couple” or “adoptive person.”  They feel bereft and upset because they have established a bond with the child and may also have invested substantial amounts of money in the adoptive process which they will not recoup.  Oftentimes they are very angry and cannot understand why the court seems deferential to the parent’s rights and why the court must consider the emotional state of the parent as it bears on voluntary nature of the decision to terminate parental rights  It may be hard to accept that in a private, voluntary TPR action, the court has no power to force a parent into terminating parental rights.  However, it must be the parent’s decision and it must be a completely free, voluntary, intelligent and knowing decision made without reservation. 

CONCLUSION

In a governmental, involuntary TPR action, the case is controlled by the governmental agency bringing the action.  The feelings of the parent do not govern how the case is processed.  If a person fails to come to court in an involuntary TPR action, the court can enter a default judgment and proceed to terminate parental rights even without the parent being in court.

In contrast, in a private, voluntary TPR action, the case is controlled by the parent bringing the action.  If the parent chooses to follow through with the termination, the court must be satisfied that the decision has been made freely, voluntarily, knowingly, intelligently and with a full understanding of the impact of and the alternatives to termination.  If the parent has reservations or deliberately chooses not to follow through with the termination, the court has no discretion and must dismiss the case.

Thursday, July 11, 2013

The Validity of Surrogacy Agreements in Wisconsin

By John DiMotto

In a blockbuster decision today, the Wisconsin Supreme Court, in Rosecky v. Schissel, 2013 WI 66, ___Wis.2d ___, upheld the validity and enforceability of all but one provision in a Surrogacy Agreement.  In the decision, the Court addresses the tragic quagmire that results when the surrogate mother changes her mind and does not want to terminate her parental rights in accordance with the agreement.  The Court urges the Wisconsin Legislature to "address surrogacy agreements to ensure that when the surrogacy process is used, the courts and the parties understand the expectations and limitations under Wisconsin Law."

Facts
The facts in this case reveal that David and Marcia Rosecky entered into a Parentage Agreement with their good friends, Monica and Cory Schissel.  Due to health issues, Marcia could not become pregnant.  Monica offered to act as a surrogate for the Roseckys. After extensive conversation about the legal ramifications of surrogacy, they each retained legal counsel and the four of them executed a Parentage Agreement.  They agreed that Monica would become pregnant and carry the child for the Roseckys; that the Roseckys would be the legal parents of the child; that the best interests of the child would be served by being in the Roseckys' legal custody and physical placement; and that the parties would cooperate fully in any parentage proceedings to determine the Roseckys as the child's legal parents, including termination of parental rights and adoption.  Monica became pregnant through artificial insemination using her egg and David Rosecky's sperm. Prior to the birth of the child, the Roseckys and the Schissels had a falling out.  As a result, Monica reneged on the Parentage Agreement and refused to terminate her parental rights. After the birth of the child, David Rosecky commenced a paternity action and was adjudicated father of the child.  A guardianship action was also commenced to resolve all other issues in the Parentage Agreement.  The trial court found that the Parentage Agreement was not enforceable; that the Monica could not be forced or required to terminate her parental rights; that custody and placement could not be decided under the Parentage Agreement but rather would be decided under Chapter 767 provisions regarding custody and placement.  The trial court granted David primary physical placement and granted Monica periods of placement finding this to be in the best interest of the child.  This appeal resulted.

Majority Opinion
In its decision, the Court held:

1)  Contract law principles apply when examining a surrogacy agreement.
2)  The Parentage Agreement contains the essential elements of a contract.
3)  While traditional defenses to the enforcement of a contract apply in the context of a surrogacy agreement, none are present here to render the Parentage Agreement unenforceable.
4)  The portions of the Parentage Agreement requiring a voluntary TPR do not comply with the procedural safeguards set forth in 48.41 because Monica would not consent to TPR and there is no legal basis for involuntary termination, however, aside from the TPR provisions in the Parentage Agreement, the agreement is a valid and enforceable contract unless enforcement is contrary to the best interest of the child.
5)  The severability clause in the Parentage Agreement is valid.
6)  A Parentage Agreement is not contrary to public policy.
7)  The trial court erred in excluding the Parentage Agreement.
8)  The trial court erred in rendering its custody and placement decision without consideration of the Parentage Agreement.
9)  The case be remanded to the trial court for a hearing on custody and placement, wherein the terms of the Parentage Agreement are enforced unless enforcement is contrary to the best interests of the child.

In arriving at its decision, the Court discusses and highlights;

1)  that surrogacy has created ways for people to have children regardless of their reproductive capacity;
2)  that surrogacy agreements outline the rights and responsibilities of all parties throughout the process in order to effectuate their intent. 
3)  that the Wisconsin Statutes do not provide a specific answer to whether the Parentage Agreement is enforceable; 
4)  that the Wisconsin Statutes do not contain a position of public policy with respect to surrogacy;
5)  that the Wisconsin Statutes do not contemplate nor address the use of a surrogacy parenting agreements in the adjudication of custody and placement disputes;
6)  that the Wisconsin Statutes do not contemplate nor address surrogacy vis a vis adoption and termination of parental rights;
7)  that the TPR-Adoption scheme does not provide relief in a surrogacy scenario;
8)  that the interests supporting enforcement of a Parentage Agreement are more compelling than interests against enforcement because enforcement promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life.

Concurring Opinion
While the Court was unanimous in the result, Chief Justice Abrahamson wrote a concurring decision.  She believes: 

1)  that the issues of custody and placement should be determined based on the best interest of the child from the factors in Chapter 767 -- 767.41(5)(am) -- and not based on the surrogacy agreement. 
2)  that the majority opinion's "authorization of people to contract out of the State's traditional oversight role in the protection of children." is wrong.
3)  that custody and placement of children born of surrogacy should not have different rights and be treated differently from any other child.  
4)  that the majority holding that "a Parentage Agreement is a valid, enforceable contract unless enforcement is contrary to the best interest of the child." is overly broad.
5)  that the trial court should adhere to the legislative directions in Chapter 767 since this is an action affecting the family and Chapter 767 addresses custody and placement.
6)  that any change in the law and the procedure regarding actions involving paternity, legal custody, and physical placement of a child when an alternative reproductive method and a surrogacy contract are implicated should not be undertaken by the Court; 
7)  any change here is a task best left to the legislature.

Conclusion
While the Wisconsin Supreme Court has finally addressed the issue of surrogacy contracts, it remains to be seen whether the Wisconsin Legislature will step into the breach and address the concerns set forth in both the majority and concurring opinions.  Unless the Wisconsin Legislature does so, parties to a surrogacy contract will be free to set their own rules regarding how to address all of the very thorny issues surrounding surrogacy.  This scenario is rife with problems which can contribute to great instability in the life of a child born of surrogacy.  Only time will tell.
  

      

Tuesday, July 2, 2013

Review of SCOTUS Decisions - End of 2012-2013 Term: Fisher v. University of Texas at Austin

In addition to SCOTUS addressing the Voting Rights Act of 1965 and the Indian Child Welfare Act in its final week, the Court once again addressed the issue of Affirmative Action.  Today, I would like to look at and analyze Fisher v. University of Texas at Austin, 570 U.S. ___(2013).

In a 7-1 decision (Justice Kagan took no part in the consideration or decision), The Court ultimately re-affirmed the viability of Affirmative Action but not without first making it perfectly clear that the demanding burden of strict scrutiny articulated in Regents of Univ. of  Cal. v. Bakke, 438 U.S. 265 (1978) and reiterated in Grutter v. Bollinger, 539 U.S. 306 (2003) must be adhered to and complied with without fail.

The history of the case reveals that the petitioner, who was rejected for admission to the University of Texas, sued the University alleging that its consideration of race in admissions violated the Equal Protection Clause.  The District Court granted summary judgment to the University and the Fifth Circuit Court of Appeals upheld the University's admission plan in light of Grutter. 

In the decision of the Court, authored by Justice Kennedy, the Court held that the Fifth Circuit did not apply the correct standard of strict scrutiny, its decision affirming the District court's grant of summary judgment to the University was incorrect and, as such, its decision is vacated that the case is remanded for a further hearing on whether the University improperly considered race in admissions.

The Court takes a "walk down memory lane" in its discussion of previous cases dealing with Affirmative Action.

The Court notes that in Bakke, Justice Powell, writing for the Court stated that "any racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.'"  Furthermore, Justice Powell stated that one compelling interest that could justify the consideration of race was the interest in the educational benefits that flow from a diverse student body.  However, the interest in securing diversity's benefits was noted to be complex.

The Court also notes that in Grutter the Court reiterated that race may not be considered unless the admissions process can withstand strict scrutiny. Furthermore, Grutter sets forth that "to be narrowly tailored, a race-conscious admissions program cannot use a quota system, but must instead 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'"

The Court embraces the principle in Bakke  that strict scrutiny requires the university to demonstrate with clarity that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose."

Justice Kennedy clearly sets forth that the University must establish both that its goal of diversity is consistent with strict scrutiny and that the admissions process also meets strict scrutiny in its implementation.  In other words, the University must "prove that the means chosen ... to attain diversity are narrowly tailored to that goal."  Justice Kennedy, once again quoting from Grutter says "it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'"  Furthermore, the court held that "narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race to achieve the educational benefits of diversity.  This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications."  In the concluding paragraph, Justice Kennedy writes "strict scrutiny must not be 'strict in theory, but fatal in fact."  But the opposite is also true.  Strict scrutiny must not be strict in theory but feeble in fact.  In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context:  the benefits of a student body diversity that 'encompasses a ... broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Justice Thomas wrote a concurring opinion.  He writes that he would hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

Justice Ginsburg wrote the lone, and brief, dissent.  She would not return the case for a second look.  She would find that the University's admissions policy flexibly consider race only as a "factor of a factor of a factor of a factor" in the calculus and that Bakke and Grutter do not require any further determinations.

The Court's decision makes it clear that race can still be a factor, but in a very, very limited way.  The question raised by this decision is whether it is a precursor to completely barring race as a factor in a future case; that is whether this decision is the Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) of Affirmative Action.  Only time will tell.