A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend,
179 Wis. 2d 469,
507 N.W.2d 163 (Ct. App. 1993).
The right to intrastate travel, including the right to move about one's neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place, and manner, do not violate this right. Brandmiller v. Arreola,
199 Wis. 2d 528,
544 N.W.2d 849 (1996),
93-2842.
The legislature cannot prohibit an individual from entering the capitol or its grounds. 59 Atty. Gen. 8 (1970).
Section 947.06, 1969 stats., which prohibits unlawful assemblies, is constitutional. Cassidy v. Ceci,
320 F. Supp. 223 (1970).
As with the Speech Clause, to show that an employer interfered with rights under the Petition Clause, an employee, as a general rule, must show that his or her speech was on a matter of public concern. The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. Bullcoming v. New Mexico, 564 U.S. ___,
131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011). See also Williams v. Illinois, 567 U.S. ___,
132 S. Ct. 2221,
183 L. Ed. 2d 89 (2012)
2011 Act 10's various restrictions, in their cumulative effect, do not violate union member's associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236, AFL-CIO v. Walker,
749 F. 3d 628 (2014).
Wisconsin, a Constitutional Right to Intrastate Travel, and Anti-Cruising Ordinances. Mode. 78 MLR 735 (1995).
I,5
Trial by jury; verdict in civil cases. Section 5
. [
As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof. [
1919 J.R. 58; 1921 J.R. 17 A; 1921 c. 504; vote Nov. 1922]
Note: See also the notes to Article I, Section 7—Jury Trial and Juror Qualifications for notes relating to jury trials in criminal cases.
When a juror is struck after the trial has commenced, a litigant cannot be required to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or grant a nonsuit with the right to plead over. It was error to grant a nonsuit and then direct a verdict for the defendant because a plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson,
47 Wis. 2d 207,
177 N.W.2d 122.
Neither the constitution, statutes, or common law affords the right to trial by jury in a will contest. Estate of Elvers,
48 Wis. 2d 17,
179 N.W.2d 881.
The requirement that a defendant prepay jury fees in a civil traffic forfeiture action is constitutional. State v. Graf,
72 Wis. 2d 179,
240 N.W.2d 387.
Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis,
104 Wis. 2d 466,
312 N.W.2d 731 (1981).
The right to a jury trial does not extend to equitable actions. However defendants who are required to plead legal counterclaims in equitable actions or lose those claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring Green Farms,
172 Wis. 2d 28,
492 N.W.2d 392 (Ct. App. 1992).
Use of collateral estoppel to prevent a civil defendant from testifying that he did not commit an act when in an earlier criminal trial the defendant was convicted by a jury of committing the act did not deny the defendant's right to a jury. Michelle T. v. Crozier,
173 Wis. 2d 681,
495 N.W.2d 327 (1993).
When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde,
185 Wis. 2d 377,
518 N.W.2d 265 (Ct. App. 1994).
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc.
200 Wis. 2d 512,
546 N.W.2d 870 (Ct. App. 1996),
93-3182.
A party has a constitutional right to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H & S Petroleum, Inc.
2002 WI 92,
254 Wis. 2d 478,
647 N.W.2d 177,
00-2493.
While a defendant has a right to a jury trial in a civil case, there is no vested right under art. I, sec. 5, to the manner or time in which that right may be exercised or waived. These are merely procedural matters to be determined by law. Phelps v. Physicians Insurance Company of Wisconsin, Inc.
2005 WI 85,
282 Wis. 2d 69,
698 N.W.2d 643,
03-0580.
In order to deem the
Village Food test satisfied, there need not be specific identity between the violation at bar and an 1848 cause of action, so long as there was an 1848 action that only differs slightly and is essentially a counterpart to the current cause. To the extent that the 1849 statutes recognize broad causes of action for civil forfeitures, they are insufficient to support a demand for a 12 person jury in every forfeiture action. Dane County v. McGrew,
2005 WI 130,
285 Wis. 2d 519,
699 N.W.2d 890,
03-1794. See also State v. Schweda.
2007 WI 100,
303 Wis. 2d 353,
736 N.W.2d 49,
05-1507.
A party's waiver of the right of trial by jury need not be a waiver in the strictest sense of that word, that is, an intentional relinquishment of a known right. Instead, a party may waive the right of trial by jury by failing to assert the right timely or by violating a law setting conditions on the party's exercise of the jury trial right. Rao v. WMA Securities, Inc.
2008 WI 73,
310 Wis. 2d 623,
752 N.W.2d 220,
06-0813.
It lies within the circuit court's discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant's right of trial by jury under Art. I, s. 5 when it denied the defendant's motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court's discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc.
2008 WI 73,
310 Wis. 2d 623,
752 N.W.2d 220,
06-0813.
Comparing the purpose underlying the modern statute to the purpose underlying its alleged common law counterpart will be helpful in applying the first prong of the
Village Food test. Harvot v. Solo Cup Company,
2009 WI 85,
320 Wis. 2d 1,
768 N.W.2d 176,
07-1396.
An implied statutory right to trial by jury in situations where the legislature has not prescribed such a right and where the constitution does not afford such a right would open a can of worms. Statutes vary widely. Ad hoc judicial discovery of implied statutory rights to trial by jury would not yield a meaningful legal test that could carry over from case to case, but would instead invite ad hoc argument whenever the statutes are silent. Harvot v. Solo Cup Company,
2009 WI 85,
320 Wis. 2d 1,
768 N.W.2d 176,
07-1396.
A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania,
403 U.S. 528.
Juror intoxication is not an external influence about which jurors may testify to impeach a verdict. Tanner v. United States,
483 U.S. 107 (1987).
A statute that creates a cause of action with an essential counterpart at common law becomes no less an essential counterpart simply because it addresses a narrower range of practices. If the legislature focuses and directs the principles of common law fraud to a specific realm it does not strip a litigant of his or her right to a jury trial when it would otherwise exist. Otherwise, a legislative enactment clearly modeled on a common law cause of action but applied to a specific context would carry no right to a jury trial. State v. Abbott Laboratories,
2012 WI 62,
341 Wis. 2d 510,
816 N.W.2d 145,
10-0232.
I,6
Excessive bail; cruel punishments. Section 6
. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.
Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State,
48 Wis. 2d 203,
179 N.W.2d 909.
It was not cruel and unusual punishment to sentence a defendant to 25 years for armed robbery when the maximum was 30 years, when by stipulation the court took into consideration 5 other uncharged armed robberies. Mallon v. State,
49 Wis. 2d 185,
181 N.W.2d 364.
Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court,
54 Wis. 2d 613,
197 N.W.2d 1.
A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler,
61 Wis. 2d 537,
213 N.W.2d 24.
Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad,
212 Wis. 2d 343,
569 N.W.2d 68 (Ct. App. 1997),
95-2669.
A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry,
230 Wis. 2d 587,
602 N.W.2d 307 (Ct. App. 1999),
98-3020.
Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate's condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant's knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County,
2001 WI App 60,
242 Wis. 2d 173,
625 N.W.2d 630,
00-0549.
The defendant's life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of his or her life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant's life expectancy, it must explain, on the record, how the defendant's life expectancy fits into the sentencing objectives. State v. Stenzel,
2004 WI App 181,
276 Wis. 2d 224,
688 N.W.2d 20,
03-2974.
In addressing whether a sentence constituted cruel and unusual punishment and was excessive, a court looks to whether the sentence was so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Davis,
2005 WI App 98,
698 N.W.2d 823,
281 Wis. 2d 118,
04-1163.
A prisoner has a liberty interest in avoiding forced nutrition and hydration, but department of corrections may infringe on the prisoner's liberty interest by forcing him or her to ingest food and fluids against his or her will. A court may enter a temporary ex parte order for involuntarily feeding and hydration, if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when DOC's allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. Department of Corrections v. Saenz,
2007 WI App 25,
299 Wis. 2d 486,
728 N.W.2d 765,
05-2750.
Sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional and is not unduly harsh and excessive. Fourteen-year-olds who commit homicide do have the same diminished moral culpability as those juvenile offenders who do not commit homicide. Sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide serves the legitimate penological goals of retribution, deterrence, and incapacitation. That the defendant was 14 years old at the time of the offense and suffered an indisputably difficult childhood does not automatically remove the punishment out of the realm of proportionate. State v. Ninham,
2011 WI 33,
333 Wis. 2d 335,
797 N.W.2d 451,
08-1139.
While
Saenz addressed initial authorization for forced feeding, it is consistent with
Saenz to require that, when the Department of Corrections (DOC) seeks a continuation of that authorization, the focus is on what will likely occur if the authorization to force feed is terminated. In these circumstances DOC must show that: 1) if forced feeding is withdrawn, it is likely the inmate would continue his or her hunger strike; and 2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. Department of Corrections v. Lilly,
2011 WI App 123,
337 Wis. 2d 185,
804 N.W.2d 489,
09-1420.
Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding of a prisoner, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. A medical opinion is presumptively a "reliable medical opinion" within the meaning of the showing DOC must make when the opinion is that of a licensed physician who is qualified by training or experience to render the opinion and the opinion is based on a proper evidentiary foundation. Department of Corrections v. Lilly,
2011 WI App 123,
337 Wis. 2d 185,
804 N.W.2d 489,
09-1420.
A prisoner's objections to the manner of forced feeding that may implicate the 8th amendment protection against cruel and unusual punishment are properly before the circuit court when DOC seeks a continuation of authorization to force feed the prisoner. When the allegation is one of excessive force, the 8th amendment protects against force that is not applied in a good faith effort to maintain order but is maliciously and sadistically applied to cause harm. Department of Corrections v. Lilly,
2011 WI App 123,
337 Wis. 2d 185,
804 N.W.2d 489,
09-1420.
Paddling students is not cruel and unusual punishment. Ingraham v. Wright,
430 U.S. 651.
A defendant's life sentence was not cruel and unusual when the defendant's 3 property crime felony convictions subjected him to a recidivist penalty. Rummel v. Estelle,
445 U.S. 263 (1980).
A prison term of 40 years and fine of $20,000 for possession and sale of 9 ounces of marijuana was not cruel and unusual punishment. Hutto v. Davis,
454 U.S. 370 (1982).
The excessive fines clause of U.S. Constitution does not apply to civil punitive damage awards in actions between private parties. Browning-Ferris v. Kelco Disposal,
492 U.S. 257,
106 L. Ed. 2d 219 (1989).
Exposure to an unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual punishment. Risk from environmental tobacco smoke was a basis for a cause of action. Helling v. McKinney,
509 U.S. 25,
125 L. Ed. 2d 22 (1993).
A sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the California three strikes law, is not grossly disproportionate and therefore does not violate the prohibition on cruel and unusual punishments. Ewing v. California,
538 U.S. 11,
155 L. Ed. 2d 108,
123 S. Ct. 1179 (2003).
A state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. The state must give defendants some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, but the 8th amendment does not require the state to release that offender during his natural life. Graham v. Florida, 560 U.S. ___,
130 S. Ct. 2011,
176 L. Ed. 2d 825 (2010).
A mandatory life sentence without parole for those under the age of 18 at the time of their crimes violates the 8th amendment's prohibition on cruel and unusual punishments. Miller v. Alabama, 567 U.S. ___,
182 L. Ed. 2d 251,
132 S. Ct. 1733 (2012).
Persons confined in the central state hospital under ss. 51.20, 51.37, 971.14, 971.17, and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy,
511 F. Supp. 1325 (1981).
A prisoner has no liberty interest in avoiding transfer to any prison, whether within or without the state. Berdine v. Sullivan,
161 F. Supp. 2d 972 (2001).
Incarcerating a person beyond the termination of his or her sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate's request to recalculate his or her sentence and must place some procedure in place to address such requests. Russell v. Lazar,
300 F. Supp 2d 316 (2004).
Solitary confinement; punishment within the letter of the law or psychological torture? Thoenig, 1972 WLR 223.
Appellate sentence review. 1976 WLR 655.
I,7
Rights of accused. Section 7
. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
CONFRONTATION AND COMPULSORY PROCESS
The right to have compulsory process to obtain witnesses in one's behalf does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good-faith attempt be made by the officer to secure service of the process. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except when it is clearly shown that there has been an abuse of discretion. Elam v. State,
50 Wis. 2d 383,
184 N.W.2d 176.
An accused should be allowed to cross-examine to discover why an accomplice has pleaded guilty and has testified against him. Champlain v. State,
53 Wis. 2d 751,
193 N.W.2d 868.
When a witness is not available for trial and when the defendant has had a prior opportunity to cross-examine that witness, former testimony, including that given at a preliminary examination, may be introduced without violating either constitutional mandates or the hearsay rule of evidence. State v. Lindsey,
53 Wis. 2d 759,
193 N.W.2d 699.
Because there was no showing that the witness was permanently ill, the defendant was denied the constitutional right to confrontation by the court allowing the use of the witness' deposition. Sheehan v. State,
65 Wis. 2d 757,
223 N.W.2d 600.
Whether a witness's refusal on 5th amendment grounds to answer otherwise permissible questions violates the defendant's right to confrontation must be determined from the whole record. West v. State,
74 Wis. 2d 390,
246 N.W.2d 675.
Admission of double hearsay did not violate defendant's right to confront witnesses. State v. Lenarchick,
74 Wis. 2d 425,
247 N.W.2d 80.
Introduction into evidence of a victim's hospital records unsupported by testimony of the treating physician did not violate the defendant's right of confrontation and cross-examination. State v. Olson,
75 Wis. 2d 575,
250 N.W.2d 12.
The trial court did not deny the defendant's right of confrontation by forbidding cross-examination of the sole prosecution witness as to the witness's history of mental illness, since no showing was made that the history was relevant to the witness's credibility. The right of confrontation is also limited by s. 904.03 if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State,
78 Wis. 2d 346,
254 N.W.2d 286.
The defendant's right of confrontation was not violated when preliminary examination testimony of a deceased witness was admitted at trial when the defendant had unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State,
83 Wis. 2d 515,
266 N.W.2d 292 (1978).
A defendant's right to compulsory process did not require admission of an unstipulated polygraph exam. Lhost v. State,
85 Wis. 2d 620,
271 N.W.2d 121 (1978).
The trial court did not err in favoring a witness's right against self-incrimination over the compulsory process rights of the defendant. State v. Harris,
92 Wis. 2d 836,
285 N.W.2d 917 (Ct. App. 1979).
The state's failure to use the Uniform Extradition Act to compel the presence of a doctor whose hearsay testimony was introduced denied the accused's right to confront witnesses and violated the hearsay rule, but the error was harmless. State v. Zellmer,
100 Wis. 2d 136,
301 N.W.2d 209 (1981).
Medical records, as explained to the jury by a medical student, were sufficient to support a conviction and did not deny the right of confrontation. Hagenkord v. State,
100 Wis. 2d 452,
302 N.W.2d 421 (1981).
The trial court properly denied a request to present a defense witness who refused to answer relevant questions during an offer of proof cross-examination. State v. Wedgeworth,
100 Wis. 2d 514,
302 N.W.2d 810 (1981).
Admission of a statement by a deceased co-conspirator did not violate the right of confrontation. State v. Dorcey,
103 Wis. 2d 152,
307 N.W.2d 612 (1981).
When a witness died after testifying at a preliminary examination, admission of the transcript of the testimony did not deny the right of confrontation. Constitutional standards for admission of hearsay evidence are discussed. State v. Bauer,
109 Wis. 2d 204,
325 N.W.2d 857 (1982).
Cross-examination, not exclusion, is the proper tool for challenging the weight and credibility of accomplice testimony. State v. Nerison,
136 Wis. 2d 37,
401 N.W.2d 1 (1987).
A defendant waives the right of confrontation by failing to object to the trial court's finding of witness unavailability. State v. Gove,
148 Wis. 2d 936,
437 N.W.2d 218 (1989).
A prosecutor who obtained an incriminating statement from a defendant is obliged to honor a subpoena and to testify at a suppression hearing if there is a reasonable probability that testifying will lead to relevant evidence. State v. Wallis,
149 Wis. 2d 534,
439 N.W.2d 590 (Ct. App. 1989).
A defendant had no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs,
157 Wis. 2d 700,
460 N.W.2d 811 (Ct. App. 1990).
Allegations of professional misconduct against the prosecution's psychiatric expert initially referred to the prosecutor's office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as the subject of cross-examination of the expert due to the lack of a logical connection between the expert and prosecutor necessary to suggest bias. State v. Lindh,
161 Wis. 2d 324,
468 N.W.2d 168 (1991).
The ability of a child witness to speak the truth or communicate intelligently are matters of credibility for the jury, not questions of competency to be determined by the judge. State v. Hanna,
163 Wis. 2d 193,
471 N.W.2d 238 (Ct. App. 1991).
When a witness's "past-recollection recorded statement" was admitted after the witness testified and was found "unavailable" as a result of having no current memory of the murder in question, there was an opportunity for cross-examination and the right to confrontation was not violated. State v. Jenkins,
168 Wis. 2d 175,
483 N.W.2d 262 (1992).
A defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino,
170 Wis. 2d 576,
489 N.W.2d 715 (Ct. App. 1992).
To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra,
175 Wis. 2d 600,
499 N.W.2d 719 (Ct. App. 1993). See also
State v. Speese,
191 Wis. 2d 205,
528 N.W.2d 63 (Ct. App. 1995.)
An indigent may be entitled to have a court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a "particularized need" for the expert. State v. Kirschbaum,
195 Wis. 2d 11,
535 N.W.2d 462 (Ct. App. 1995),
94-0899.
The right to confrontation was not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession was redacted to eliminate any reference to the defendant's existence. State v. Mayhall,
195 Wis. 2d 53,
535 N.W.2d 473 (Ct. App. 1995),
94-0727.
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic,
200 Wis. 2d 210,
546 N.W.2d 501 (Ct. App. 1996),
95-0881.
The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall,
202 Wis. 2d 29,
549 N.W.2d 418 (1996),
94-1213.
