Michelle T. by Sumpter v. Crozier

• Decision Date: 18 February 1993
• Docket Number: No. 91-0054,91-0054
• Citation: 173 Wis.2d 681,495 N.W.2d 327
• Parties: MICHELLE T., a minor, by Gary C. SUMPTER, her guardian ad litem, Plaintiffs-Respondents, v. Cecil CROZIER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 327

495 N.W.2d 327

173 Wis.2d 681

MICHELLE T., a minor, by Gary C. SUMPTER, her guardian ad litem, Plaintiffs-Respondents, v. Cecil CROZIER, Defendant-Appellant.

No. 91-0054.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 8, 1992.

Decided Feb. 18, 1993.

For the defendant-appellant there was a brief (in the court of appeals) by Stephen M. Chandler, New Berlin.

For the plaintiffs-respondents there was a brief (in the court of appeals) by Gary C. Sumpter and Anderson, Sumpter & Anderson, S.C., Kenosha.

HEFFERNAN, Chief Justice.

This is an appeal on certification from the court of appeals from a judgment of the circuit court for Kenosha County, Barbara A. Kluka, Judge, which awarded damages to Michelle T., a minor, for injuries resulting from Cecil Crozier's sexual assault upon her.

In the course of the trial, Judge Kluka precluded defendant Crozier's offer of evidence that he had not assaulted Michelle T., because Judge Kluka found that issue had been litigated and decided adversely to Crozier in a prior criminal trial arising out of the same incident which resulted in a verdict finding him guilty of second degree sexual assault.

The court of appeals certified this case because it concluded that there was considerable doubt in Wisconsin whether collateral estoppel was an accepted trial technique when used by a plaintiff to exclude an offer of evidence by a defendant. We granted certification to clarify the status of Wisconsin law on the use of offensive estoppel. We conclude that, under the facts of the instant case, the granting of Michelle T.'s request for the use of offensive collateral estoppel was in accordance with Wisconsin law, was fundamentally fair, and we therefore affirm the decision of the circuit court. ¹

In 1987, a twelve-member jury convicted Crozier of second degree sexual assault for two acts of sexual touching of Michelle T. After Crozier's criminal conviction, Michelle T.'s guardian ad litem commenced a civil action for damages charging Crozier with assault and battery, and extreme and outrageous conduct intending to inflict emotional distress. In the course of the opening statement in the civil proceeding, counsel for Crozier told the jury that Crozier would testify to dispute the facts that supported the criminal conviction. In response, Michelle T. made a motion in limine requesting that under the rationale of Crowall v. Heritage Mutual Insurance, 118 Wis.2d 120, 346 N.W.2d 327 (Ct.App.1984), Crozier be collaterally estopped from testifying on that issue contrary to the verdict rendered in the prior criminal prosecution.

The circuit court granted Michelle T.'s motion on two grounds. First, the court rejected Crozier's argument that collateral estoppel is functionally analogous to a motion for partial summary judgment on the question of liability and that therefore Michelle T.'s motion had not been timely filed. Collateral estoppel, the court pointed out, is a legal theory that may be raised at any point in the trial to prevent the relitigation of particular issues that were "essential to the judgment," not entire claims. ² Accordingly, the court reasoned that, although Crozier would be precluded from disputing the elements of the crime for which he had been convicted, namely, that he had sexual contact with the minor Michelle T. for the purpose of sexual arousal or gratification, he could still contest the question of liability for damages. Crozier might introduce testimony refuting the particular elements required for intentional infliction of emotional distress, such as the intent to cause emotional distress or effect of the sexual touching. ³ Similarly, evidence that Michelle T. had consented to the touching would defeat the civil battery charge brought against Crozier. ⁴

Second, the court reasoned that permitting the use of offensive collateral estoppel would not unduly prejudice Crozier because he had already litigated the issue of sexual touching in the criminal court under a more stringent (beyond a reasonable doubt) standard of proof than is required in civil proceedings. Further, the circuit court stated, Crozier had been found guilty by a twelve-member jury in criminal court and therefore was not denied his right to a jury trial as conferred by the federal and state constitutions.

On appeal, the court of appeals recognized the need for a definitive statement regarding the use of offensive collateral estoppel and therefore certified this case to this court. In its certification, the court of appeals noted that Wisconsin courts have developed a fundamental fairness standard for deciding whether to permit the invocation of collateral estoppel. Specifically, the court cited McCourt v. Algiers, 4 Wis.2d 607, 91 N.W.2d 194 (1958), and Crowall v. Heritage Mutual Insurance, as possible precedent for upholding the use of offensive collateral estoppel in Wisconsin.

Whether Wisconsin courts may permit the use of offensive collateral estoppel is a question of law we interpret without deference to the lower court's ruling. Heggy v. Grutzner, 156 Wis.2d 186, 192, 456 N.W.2d 845 (Ct.App.1990). Because we agree that the decisions cited in the certification sanction the use of offensive collateral estoppel, we affirm the judgment of the circuit court.

Collateral estoppel, or issue preclusion, is a doctrine designed to limit the relitigation of issues that have been contested in a previous action between the same or different parties. Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). ⁵ Attempts to invoke collateral estoppel, however, have historically been conditioned by requirements designed to protect against unfairly disadvantaging parties. For example, collateral estoppel initially was permitted only if the parties were mutually bound by the first court's judgment. 31 A.L.R.3d 1044, sec. 1(b) at 1047-49 (1970), ⁶ i.e., both parties must have been parties to the prior trial and both bound by the judgment therein. Similarly, courts generally required that the issues sought to be precluded must have been pleaded properly and submitted for determination in the first trial. Thus, judgments based on pleas of guilty or nolo contendere, both of which pass directly to sentencing and avoid adjudication of contested issues, it is argued, could not be used to preclude future litigation of those same issues. Restatement (Second) of Judgments, sec. 85, comment b at 296; Crowall, 118 Wis.2d at 122 n. 2, 346 N.W.2d 327. ⁷ Formalistic requirements, however, have gradually been abandoned in favor of a looser, equities-based interpretation of the doctrine. Jonathan Thau, Collateral Estoppel and the Reliability of Criminal Determinations: Theoretical, Practical, and Strategic Implications for Criminal and Civil Litigation, 70 Geo.L.J. 1079 n. 2 (1982) (citing cases) [hereinafter Strategic Implications ]; Wisconsin courts, Wis.B.Bull. January 1982 at 32. ⁸

Today, federal and state courts balance competing goals of judicial efficiency and finality, protection against repetitious or harassing litigation, and the right to litigate one's claims before a jury when deciding whether to permit parties to collaterally estop one another. ⁹ Courts may consider some or all of the following factors to protect the rights of all parties to a full and fair adjudication of all issues involved in the action: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action? ¹⁰

Federal case law illustrates the evolution of this "fundamental fairness" standard. Prior to 1979, the United States Supreme Court applied collateral estoppel only on behalf of defendants. Whereas defensively the doctrine was believed to encourage joinder of parties and promote judicial efficiency, offensive collateral estoppel was feared as unduly prejudicing the party against whom it was asserted. Blonder-Tongue Laboratories, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). In Blonder-Tongue, the Court noted that the rule of mutuality had been discarded as a requirement for applying collateral estoppel. Id. at 326, 91 S.Ct. at 1441. Nevertheless, the Court went on to discuss other factors that must be considered in deciding whether to permit parties to collaterally estop one another. Citing the misallocation of resources that attends the relitigation of settled issues, the Court reasoned that "no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts' sense of justice and equity." Id. at 333-34, 91 S.Ct. at 1445. In the case of patent litigation at issue in Blonder-Tongue, the Court reasoned in part that both the immense cost of litigating patent disputes and the chilling effect that cost would have on potential defendants supported the use of collateral estoppel. Id. at 338, 91 S.Ct. at 1447.

Nine years later, the Court, in Parklane Hosiery Co., Inc., et al. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), extended the scope of collateral estoppel to cases in which it was used offensively by plaintiffs to preclude defendants from relitigating issues that had been lost in prior actions. In...