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S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed

court of appeals decision

Inadequate Appendix to Appellate Brief
¶5 n. 1:

 We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by Wis. Stat. Rule 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

Briefing Issue-Selection
¶5 n. 1:

Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.

Self-Incrimination, Civil Proceeding
A person may invoke the 5th amendment privilege against self-incrimination in a civil action as protection against adverse use of such evidence in a subsequent criminal action, ¶11. And, the person may later withdraw the privilege and testify, but if such withdrawal would harm a party, the trial court has discretion to prevent it:

¶13   Based on this policy, the general rule is that if the claimant makes a timely request to the court, the court should explore all possible measures to select that means which strikes a fair balance and accommodates both parties. See id. at 191, 194; Certain Real Prop., 55 F.3dat 84. Striking a fair balance between both parties requires a careful assessment of each case’s precise facts. Certain Real Prop., 55 F.3d at 85. The court should give due consideration to the nature of the proceeding and the potential for harm or prejudice to opposing parties. Id. at 84.

¶14   One of the most important factors in the balancing process is the timing of the withdrawal. Seee.g.id. at 84-85. …

¶19   The importance of Certain Real Property’s conclusion that this decision is made in the exercise of a trial court’s discretion cannot be understated. The trial court is in a far better position than an appellate court to determine whether prejudice has evolved as a consequence of the belated withdrawal of the invocation. It strikes us as eminently fair and reasonable that the trial court have the responsibility to perform the balancing test and make the ultimate decision in the exercise of its discretion and we adopt it. This means, of course, that we will defer to the trial court’s discretionary determination.

The trial court’s refusal in this instance to allow withdrawal of the privilege, which had the effect of barring the person form testifying, although “a severe remedy,” is upheld as a proper exercise of discretion, largely because the effort came so late that it would have deprived the opposing party “of investigating or conducting discovery” as to that testimony, ¶¶20-22.

Wisconsin Organized Crime Control Act (WOCCA), § 946.81, Damages

¶32   … WOCCA, like its federal counterpart the Racketeer Influenced and Corrupt Organizations Act (RICO), has both penal and remedial purposes; its intent is both to sanction and to compensate.

¶33   Where statutes are both penal and remedial, courts separate the penal provisions from the remedial, giving the provisions establishing penalties strict construction and the remainder of the act a liberal construction. …

¶34   The multiple damages provision in WOCCA is very similar to its federal counterpart in RICO, which the United States Supreme Court has repeatedly acknowledged is remedial…. The civil cause of action feature is liberally construed. The damages incurred as a result of this conspiracy all fall under WOCCA. No damages given by the jury fell outside WOCCA, contrary to the claim by Russell and Buske. Therefore, all the damages from the conspiracy were properly doubled. We confirm the trial court’s award of double damages on the while award pursuant to Wis. Stat. § 946.87(4).

Appellate Procedure

Appellate Procedure


Wisconsin Organized Crime Control Act (WOCCA), § 946.81