David Skindzelewski v. Joseph Smith, Jr.

2020 WI 57
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP623
COMPLETE TITLE: David Skindzelewski,
Plaintiff-Appellant-Petitioner,
v.
Joseph Smith, Jr.,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 930 N.W.2d 281,388 Wis. 2d 144
(2019 – unpublished)
OPINION FILED: June 18, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 10, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Mary E. Triggiano
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. HAGEDORN, J., filed a concurring opinion. DALLET, J.,
filed a dissenting opinion.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation.
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Craig S. Powell and Hart Powell, S.C., Milwaukee. There
was an oral argument by Craig S. Powell.
For the defendant-respondent, there was a brief filed by Brian
P. Keenan, assistant attorney general, with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
Brian P. Kennan.
2020 WI 57
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP623
(L.C. No. 2016CV8101)
STATE OF WISCONSIN : IN SUPREME COURT
David Skindzelewski,
Plaintiff-Appellant-Petitioner,
FILED
v. JUN 18, 2020
Joseph Smith, Jr., Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. HAGEDORN, J., filed a concurring opinion. DALLET, J.,
filed a dissenting opinion.
ANN WALSH BRADLEY, J., withdrew from participation.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. David Skindzelewski
committed a crime, pled guilty, and spent time in jail as a
consequence for committing that crime until a circuit court vacated
his conviction because the statute of limitations rendered the
conviction erroneous. In this action, Skindzelewski sued his
criminal defense attorney for legal malpractice because his
attorney failed to raise the statute of limitations as an
No. 2018AP623
affirmative defense in his criminal case. Neither the circuit
court nor the court of appeals permitted his suit to proceed to
trial because Skindzelewski could not prove he was actually
innocent of the crime of which he was convicted. Skindzelewski
asks this court to reverse the unpublished court of appeals
opinion1 affirming the circuit court's2 grant of summary judgment.
¶2 The actual innocence rule requires a criminal defendant
who sues his defense attorney for legal malpractice to establish
the defendant did not commit the crime of which he was convicted.
Skindzelewski concedes his guilt but advocates the formulation of
an exception to the actual innocence rule. We decline to create
one under the facts presented by Skindzelewski's lawsuit. Nothing
about Skindzelewski's case warrants developing an exception to the
actual innocence rule; recognizing one under these circumstances
would reward criminality. As a matter of law, Skindzelewski cannot
succeed on his legal malpractice claim. We affirm the decision of
the court of appeals.
I. BACKGROUND
¶3 In March 2014, the State charged Skindzelewski with
theft by contractor in violation of Wis. Stat. § 779.02(5) (2009-
10) after Skindzelewski failed to perform work for which he was
1 Skindzelewski v. Smith, No. 2018AP623, unpublished slip op.
(Wis. Ct. App. May 29, 2019) (per curiam).
2 The Honorable Mary E. Triggiano of the Milwaukee County
Circuit Court presided.
2
No. 2018AP623
paid in 2010.3 Because the amount taken was less than $2,500, the
offense was a Class A misdemeanor under Wis. Stat. § 943.20(3)(a).
The criminal complaint alleged Skindzelewski received $1,264 from
a family to install roof vents on its home, but he failed to
perform the work. The complaint also alleged that Skindzelewski
admitted he did not do the work, spent the money on personal
expenses, and owed the family for taking its money without
performing the contracted-for work. The statute of limitations
for a misdemeanor is three years. See Wis. Stat. § 939.74(1).
¶4 The State Public Defender's Office appointed attorney
Joseph Smith to represent Skindzelewski. Smith never raised the
three-year statute of limitations as a defense to the theft charge.
Neither the prosecutor nor the presiding judge recognized that the
statute of limitations barred conviction. Skindzelewski
ultimately pled guilty in 2015 and was sentenced to eight months
in jail. The circuit court imposed this sentence consecutive to
time being served on a prior conviction. Skindzelewski began
serving his theft-by-contractor sentence in mid-December 2015.
While Skindzelewski was in jail, his new attorney filed a
postconviction motion, contending his conviction should be vacated
because the State charged him after the three-year statute of
limitations expired. In April 2016, the circuit court granted the
motion and vacated the conviction, and Skindzelewski was
3 All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
3
No. 2018AP623
immediately released from jail. Before his release, Skindzelewski
spent approximately four months incarcerated for his crime.
¶5 After being released, Skindzelewski sued Smith for legal
malpractice, alleging Smith negligently failed to raise the
statute of limitations as a defense in his criminal case, resulting
in Skindzelewski's incarceration. The State, on behalf of Smith,4
admitted Smith's negligence but pled several affirmative defenses,
including the actual innocence rule set forth in Hicks v. Nunnery,
2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809. Both parties
moved for summary judgment.
¶6 Skindzelewski asked the circuit court to adopt an
exception to the actual innocence rule, as applied by certain
foreign jurisdictions in cases involving sentencing errors.
Concluding that "[t]he law in Wisconsin is clear[,]" the circuit
court declined to adopt a novel exception to prevailing law,
applied the governing actual innocence rule, and granted the
State's motion for summary judgment. Skindzelewski appealed. In
an unpublished opinion, the court of appeals determined it had no
power to modify Hicks and rejected Skindzelewski's argument for
establishing an exception to the actual innocence rule. See
Skindzelewski v. Smith, No. 2018AP623, unpublished slip op., ¶11
(Wis. Ct. App. May 29, 2019) (per curiam). Skindzelewski filed a
petition for review, which we granted.
II. STANDARD OF REVIEW
4 Because public defenders are state employees, the State
represents Smith in this civil suit.
4
No. 2018AP623
¶7 On appeal, "[w]e independently review a grant of summary
judgment[.]" West Bend Mut. Ins. Co. v. Ixthus Med. Supply, Inc.,
2019 WI 19, ¶9, 385 Wis. 2d 580, 923 N.W.2d 550 (quoting Water
Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 2016 WI 54,
¶11, 369 Wis. 2d 607, 881 N.W.2d 285). We employ the same
methodology as the circuit court and court of appeals. Id.
"Summary judgment is appropriate when there is no genuine dispute
of material fact and the moving party is entitled to judgment as
a matter of law." Id.; see also Wis. Stat. § 802.08(2)(2017-18).
III. ANALYSIS
A. General Principles of Negligence
¶8 A plaintiff must prove four elements to establish
negligence: duty, breach, causation, and damages. Coffey v. City
of Milwaukee, 74 Wis. 2d 526, 531, 247 N.W.2d 132 (1976). In this
legal malpractice case, Skindzelewski's claim involves only the
third element——causation. In order to establish causation, the
plaintiff must show that the negligent act was "a substantial
factor in producing" the plaintiff's injury. Morden v. Continental
AG, 2000 WI 51, ¶60, 235 Wis. 2d 325, 611 N.W.2d 659 (quoting
Nieuwendorp v. American Family Ins. Co., 191 Wis. 2d 462, 475, 529
N.W.2d 594 (1995)); see also Clark v. Leisure Vehicles, Inc., 96
Wis. 2d 607, 617, 292 N.W.2d 630 (1980) ("The test of cause in
Wisconsin is whether the defendant's negligence was a substantial
factor in producing the injury."). Even if a plaintiff proves the
general elements of negligence, courts may preclude liability
based on public policy considerations. See, e.g., Howard v. Mt.
5
No. 2018AP623
Sinai Hospital, Inc., 63 Wis. 2d 515, 517-20, 217 N.W.2d 383
(1974), aff'd on rehearing 219 N.W.2d 576.
¶9 The elements of a legal malpractice claim are
substantially the same as the elements comprising a general
negligence claim. The plaintiff must prove: (1) an attorney-
client relationship existed; (2) the attorney's actions were
negligent; (3) the attorney's negligent actions caused the
client's injury; and (4) the client suffered an actual injury.
See Lewandowski v. Continental Cas. Co., 88 Wis. 2d 271, 277, 276
N.W.2d 284 (1979) (quoted source omitted). In order to prove
causation and injury, a plaintiff must show that "but for the
negligence of the attorney, the client would have been successful
in the prosecution or defense of an action." Glamann v. St. Paul
Fire & Marine Ins. Co., 144 Wis. 2d 865, 870, 424 N.W.2d 924 (1988)
(quoting Lewandowski, 88 Wis. 2d at 277). This burden has been
characterized as requiring the plaintiff to prove a case within a
case: the plaintiff must show that, but for his lawyer's
negligence, the civil case would have succeeded. Id. When the
legal malpractice arises from professional services rendered in a
criminal case, the client must additionally prove that he was
actually innocent of the criminal charge as a component of the
causation element. See Hicks, 253 Wis. 2d 721, ¶34. This actual
innocence rule arises out of public policy considerations. Id.
B. The Actual Innocence Rule
¶10 In Hicks v. Nunnery, the court of appeals adopted the
actual innocence rule, citing cases from foreign jurisdictions.
Hicks, 253 Wis. 2d 721, ¶¶34-49; see generally Wiley v. County of
6
No. 2018AP623
San Diego, 966 P.2d 983 (Cal. 1998); Glenn v. Aiken, 569 N.E.2d 783
(Mass. 1991). In applying the rule, our court of appeals held
that, in a legal malpractice case arising from a criminal defense
attorney's representation, the plaintiff must show something more
than "but for" the attorney's negligence, the plaintiff would have
been found not guilty. Hicks, 253 Wis. 2d 721, ¶46. In order to
pursue a civil claim for damages against a negligent criminal
defense attorney, the plaintiff must also show he was actually
innocent of the crime of which he was convicted. Id.
¶11 The actual innocence rule has been part of Wisconsin's
jurisprudence for nearly two decades. See id., 253 Wis. 2d 721,
¶34; Wis. Stat. § 752.41(2) (2017-18).5 Neither party asks us to
overrule Hicks or challenges its rationale. Skindzelewski,
however, asks us to adopt an exception to the actual innocence
rule. He bears the burden of establishing an exception is
warranted and should apply in his case. See State v. McFarren, 62
Wis. 2d 492, 499-500, 215 N.W.2d 459 (1974) (the burden of proof
rests on the party "desiring change" and seeking "to change the
present state of affairs" (quoted source omitted)). Skindzelewski
has not satisfied his burden.
C. Application
¶12 Skindzelewski asks us to recognize what he characterizes
as a "narrow" exception to the actual innocence rule, which would
relieve a plaintiff of establishing his innocence whenever defense
5 Published court of appeals decisions have "statewide
precedential effect" until overruled by this court. Cook v. Cook,
208 Wis. 2d 166, 186, 560 N.W.2d 246 (1997).
7
No. 2018AP623
counsel's negligence results in a conviction or sentence
unauthorized by law. To support this proposed modification to the
general rule, Skindzelewski first cites court of appeals decisions
from foreign jurisdictions recognizing narrow exceptions for cases
involving sentences beyond statutory maximums. Relying primarily
on Johnson v. Babcock, 136 P.3d 77 (Or. Ct. App. 2006) and Powell
v. Associated Counsel for Accused, 106 P.3d 271 (Wash. Ct. App.
2005), Skindzelewski suggests the actual innocence rule should not
apply when a circuit court imposes a sentence it had no authority
to order.
¶13 In Johnson v. Babcock, the plaintiff's criminal defense
attorney did not object to the imposition of a sentence more than
20 years longer than authorized by statute. Johnson, 136 P.3d at
78. The Oregon Court of Appeals held that actual innocence was
not a necessary element of the criminal defendant's legal
malpractice claim because he received a "legally impermissible
sentence." Id. at 81. Similarly, in Powell, the Washington Court
of Appeals did not require proof of actual innocence because the
criminal defendant's sentence was 300 percent longer than the
statutory maximum for his crime. Powell, 106 P.3d at 272. The
Powell court deemed the situation "unfair." Id. at 274.
Distinguishing that case from Skindzelewski's, the criminal
defendant in Powell had "no quarrel with having been incarcerated
for the period of time justified by the" crime to which he pled
guilty. Id.
¶14 Skindzelewski's reliance on these cases to support his
proposed exception is misplaced. As a preliminary matter, neither
8
No. 2018AP623
of these cases applied an exception to the actual innocence rule
based on a failure to raise an affirmative defense and we have not
discovered a single case that has done so. The statute of
limitations is an affirmative defense in both the civil and
criminal context. See Robinson v. Mount Sinai Medical Center, 137
Wis. 2d 1, 16-17, 402 N.W.2d 711 (1987); State v. Slaughter, 200
Wis. 2d 190, 198, 546 N.W.2d 490 (Ct. App. 1996) ("Statutes of
limitation generally, as in the present case, act as an affirmative
defense."). Rather, Johnson and Powell each recognized an
exception to the actual innocence rule in the extraordinarily
narrow context of a guilty defendant whose sentence exceeded the
statutory limit applicable to the crime of which he was convicted.
See Johnson, 136 P.3d at 78; Powell, 106 P.3d at 273-74. Unlike
the plaintiff in Powell, Skindzelewski does "quarrel with having
been incarcerated" even though the approximately four months of
his sentence he spent in jail falls within the nine-month statutory
maximum for the Class A misdemeanor he admits having committed.
See Wis. Stat. § 939.51(3)(a). Skindzelewski argues that his
criminal defense attorney's failure to raise the statute of
limitations resulted in a legally impermissible conviction,
thereby challenging the conviction itself, not the period of
incarceration. In contrast, neither of the plaintiffs in the cases
cited by Skindzelewski argued that their underlying convictions
were erroneous.
¶15 Skindzelewski also relies on Hilario v. Reardon, 960
A.2d 337 (N.H. 2008), but the plaintiff in that case, just like
the plaintiffs in Johnson and Powell, did not challenge the
9
No. 2018AP623
conviction. In Hilario, the New Hampshire Supreme Court adopted
an exception to the actual innocence rule for a criminal defendant
who pled guilty under an agreement with the State to recommend
suspending part of his sentence upon certain conditions being met.
Hilario, 960 A.2d at 339. The defendant's attorney, without the
defendant's knowledge, moved to withdraw the plea. Id. When the
defendant later moved for suspension of his sentence, the State
objected, citing the attorney's plea withdrawal attempt as a breach
of the plea agreement. Id. The trial court agreed with the State
and denied the defendant's motion. Id. In response, the defendant
filed a legal malpractice suit against his defense counsel. Id.
The New Hampshire Supreme Court reaffirmed the application of the
actual innocence rule in legal malpractice actions "challeng[ing]
the underlying conviction, [or] tend[ing] to undermine or
indirectly challenge it." Id. at 343 (citations omitted). That
court recognized an exception to the rule only "where the alleged
legal malpractice occurred after the plea and sentencing, where
the claim is unrelated to any strategic or tactical decision
relating to the plaintiff's convictions, and where the plaintiff
does not argue that but for his attorney's negligence he would
have obtained a different result in the criminal case." Id. at
345 (emphasis added).
¶16 Neither prerequisite to New Hampshire's application of
this exception to the actual innocence rule exists in
Skindzelewski's case. The legal malpractice by Skindzelewski's
criminal defense attorney——a failure to assert the statute of
limitations as a defense to the criminal charge——arose prior to
10
No. 2018AP623
the plea and sentencing. Unlike the defendant in Hilario,
Skindzelewski does argue, as reflected in his civil complaint,
that but for his attorney's negligence, he would have obtained a
different result——namely, Skindzelewski "could not have been
convicted and wrongfully incarcerated." In this case,
Skindzelewski challenges his conviction, a circumstance under
which the New Hampshire Supreme Court would leave the actual
innocence rule intact and fully applicable.
¶17 Unlike the cases on which Skindzelewski relies, all of
which involved errors committed by counsel after conviction,
Skindzelewski's claim rests on a legal error that would have
precluded his conviction notwithstanding his guilt. In this
regard, a criminal defense attorney's failure to raise the statute
of limitations as an affirmative defense is analogous to a failure
to make a meritorious motion to suppress evidence. The court of
appeals in Hicks held that even when a conviction results from an
attorney's failure "to bring a clearly meritorious motion to
suppress evidence that establishes guilt, which the state could
not prove without it[,]" the actual innocence rule applies. Hicks,
253 Wis. 2d 721, ¶43. During oral argument, Skindzelewski's
counsel acknowledged that a criminal defendant could not sue his
counsel for failing to make a motion to suppress that would have
been granted if brought, even if an acquittal would have
necessarily followed. The law bars such legal malpractice claims
because even if an attorney's negligence harms a defendant by
adversely affecting the outcome of the case, attorney error does
not negate a guilty defendant's culpability. Neither failing to
11
No. 2018AP623
make a motion to suppress nor failing to raise the statute of
limitations severs the causal link between a criminal defendant's
culpable behavior and the time spent incarcerated, when the
criminal defendant is actually guilty. Regardless of the
attorney's error, the defendant nonetheless bears ultimate
responsibility for his criminal conduct and consequent
imprisonment.
¶18 In contrast, if a defendant——like the defendants in
Johnson and Powell——serves the maximum time authorized by statute
for his criminal conduct but then serves additional time as a
result of his attorney's error, the additional time of
incarceration is causally unconnected to the antecedent
criminality. In other words, any period of incarceration in excess
of the statutory maximum sentence is solely attributable to the
attorney's error and completely detached from the defendant's
criminal conduct. Similarly, losing the benefit of a plea deal
that includes a sentence suspension, as occurred in Hilario, is
solely attached to the attorney's error and entirely unrelated to
the defendant's criminal behavior.
¶19 Skindzelewski attempts to distinguish an attorney's
failure to raise the statute of limitations as an affirmative
defense from an attorney's failure to make a suppression motion.
First, he argues that the expiration of the statute of limitations
divests a court of jurisdiction over the defendant. Second, he
asserts that the statute of limitations confers a right on the
defendant to be free from prosecution. The former has no merit
12
No. 2018AP623
and we reject the latter as a basis for recognizing an exception
to the actual innocence rule.
¶20 While the running of the applicable statute of
limitations in a criminal case eliminates a court's personal
jurisdiction over the defendant, see State v. Muentner, 138 Wis. 2d
374, 382, 406 N.W.2d 415 (1987), a criminal defendant forfeits his
objection to personal jurisdiction by failing to object before
sentencing and conviction. Kelley v. State, 54 Wis. 2d 475, 479,
195 N.W.2d 457 (1972); Godard v. State, 55 Wis. 2d 189, 190-91,
197 N.W.2d 811 (1972) (violation of a statutory requirement caused
a court to lose personal jurisdiction over the defendant, but the
defendant's subsequent guilty plea waived the objection to
personal jurisdiction); State v. Asmus, 2010 WI App 48, ¶4, 324
Wis. 2d 427, 782 N.W.2d 435 ("[A] defense of lack of personal
jurisdiction is waived by pleading to the information." (citation
omitted)). Because the law forecloses a remedy for a criminal
defendant who forfeits an objection based upon a lack of personal
jurisdiction, it would be incongruous to revive the forfeited
objection in a civil case as a basis for a civil remedy.
¶21 Skindzelewski next argues that the statute of
limitations confers a right to be free from prosecution. Even if
this proposition were true, the right would be merely a statutory
one. Skindzelewski concedes that Hicks did not establish any
exception to the actual innocence rule for a claim of legal
malpractice based on the violation of a constitutional right. It
would be nonsensical to create a right of recovery for the
violation of a statutory right while withholding recovery for the
13
No. 2018AP623
violation of a constitutional right. In criminal proceedings,
"constitutional protections are to safeguard against conviction of
the wrongly accused . . . . They are not intended to confer any
direct benefit outside the context of the criminal justice system."
Hicks, 253 Wis. 2d 721, ¶43 (quoted source omitted). The same
principle applies to statutory safeguards, such as statutes of
limitation.
¶22 Skindzelewski took money from his victim in advance
payment for work he never performed. Instead of returning the
money, Skindzelewski converted it to his own use. Skindzelewski
pled guilty to the crime of theft-by-contractor. Once
postconviction counsel discovered the statute of limitations had
lapsed prior to the State charging Skindzelewski, he was released
from jail after serving only a portion of his sentence. Despite
his guilt, the law afforded Skindzelewski a remedy for the
erroneous conviction——namely, his liberty. The law does not,
however, give him an additional monetary remedy against his
negligent lawyer. Doing so would be tantamount to rewarding this
guilty defendant for his crime, which "would . . . shock the
public conscience, engender disrespect for courts and generally
discredit the administration of justice." Hicks, 253 Wis. 2d 721,
¶40 (quoting Wiley, 966 P.2d at 986).
IV. CONCLUSION
¶23 Skindzelewski failed to satisfy his burden of
establishing a compelling reason to change existing law. The
actual innocence rule is premised on the fundamental principle
that society imposes consequences for criminal acts, to be borne
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No. 2018AP623
solely by the guilty. Nothing about Skindzelewski's case warrants
carving out an exception to the actual innocence rule under these
facts. The law does not recognize a cause of action for a criminal
defendant against his attorney merely because a more competent
attorney could have achieved a better result. We affirm the court
of appeals decision affirming the circuit court's grant of summary
judgment in Skindzelewski's legal malpractice suit because he
conceded his guilt to the crime of which he was convicted. Because
Skindzelewski conceded guilt, his claim of legal malpractice
against his criminal defense attorney is legally barred.
By the Court.—The decision of the court of appeals is
affirmed.
¶24 ANN WALSH BRADLEY, J., withdrew from participation.
15
No. 2018AP623.bh
¶25 BRIAN HAGEDORN, J. (concurring). In almost every case
that reaches this court, we are called upon to interpret and apply
the positive law enacted by the people——the Constitution,
statutes, and the like. This case, in contrast, comes as an
entreaty for the judiciary to make a public policy declaration in
the exercise of our common law powers.
¶26 David Skindzelewski pled guilty to a crime, and served
time because his criminal defense attorney failed to raise a
statute of limitations defense that would have precluded his
conviction. Following his release, Skindzelewski brought this
legal malpractice action against that attorney. The majority says
he cannot succeed, relying principally on Hicks v. Nunnery, 2002
WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809. There, the court of
appeals made a sweeping public policy declaration——namely, in a
legal malpractice action against a criminal defense attorney, a
plaintiff must prove he was actually innocent of the convicted
crime. Id., ¶46. The wrinkle in this case is that Skindzelewski
does not ask us to modify Hicks or otherwise challenge its
reasoning. He asks instead for this court to create an exception
to the actual innocence rule Hicks pronounced.
¶27 The difficulty I see in this case, however, is that I'm
not so sure Hicks was rightly decided in the first instance. The
usual approach in our line of work is to leave public policy
decisions to the legislature. Flynn v. DOA, 216 Wis. 2d 521, 539,
576 N.W.2d 245 (1998) ("This court has long held that it is the
province of the legislature, not the courts, to determine public
policy."). Although I do not question our authority to act as a
1
No. 2018AP623.bh
common law court in narrow areas, a broad public policy
pronouncement like the one in Hicks is probably best left to those
elected to be policymakers——the legislature. Borgnis v. Falk Co.,
147 Wis. 327, 351, 133 N.W. 209 (1911) ("When acting within
constitutional limitations, the legislature settles and declares
the public policy of a state, and not the court.").
¶28 We might consider eliminating the Hicks rule and
allowing criminal legal malpractice claims to undergo the standard
rigors of any other legal malpractice claim. Success requires the
plaintiff to prove: "(1) a lawyer-client relationship existed;
(2) the defendant committed acts or omissions constituting
negligence; (3) the attorney's negligence caused the plaintiff
injury; and (4) the nature and extent of injury." Hicks, 253
Wis. 2d 271, ¶33. The factfinder determines if these elements are
met. See Morgan v. Pa. Gen. Ins. Co., 87 Wis. 2d 723, 732-33, 275
N.W.2d 660 (1979). This includes a determination under the
causation element that the allegedly negligent attorney's actions
were a substantial factor in producing the plaintiff's injury.
Id. at 735. It may be that the jury in this case would find that
the negligence of Skindzelewski's attorney was not a substantial
factor, or that Skindzelewski is not entitled to any damages
because of his admission that he committed the crime. See Mashaney
v. Bd. of Indigents' Def. Servs., 355 P.3d 667, 687-88 (Kan. 2015)
(Stegall, J., concurring) (agreeing with the Kansas Supreme
Court's rejection of the actual innocence rule and suggesting "the
jury may decide that even had the defense attorney not been
2
No. 2018AP623.bh
professionally negligent the criminal defendant would still have
been convicted due to his actual guilt").
¶29 Similarly, eliminating the actual innocence rule would
leave space for the circuit court to make an independent public
policy determination. Miller v. Wal-Mart Stores, Inc., 219
Wis. 2d 250, 264, 580 N.W.2d 233 (1998). While Hicks pronounced
a policy-based rule with statewide application, judicial public
policy determinations are normally conducted "on a case-by-case-
basis."1 Fandrey ex rel. Connell v. Am. Family Mut. Ins. Co., 2004
WI 62, ¶16, 272 Wis. 2d 46, 680 N.W.2d 345 (quoted source
omitted). The individualized approach, one that empowers juries
and individual circuit courts to look at the unique facts of each
case, may be preferable to a blanket rule in this area.
¶30 On the other hand, I'm not so sure Hicks is wrong either.
Underlying Hicks is a sense that criminal law is different from
civil law. The principle here is that when someone commits a
crime, it is an act against society, and those who commit crimes
1 This court has traditionally articulated six public policy
reasons for not imposing liability despite a finding of negligence:
(1) The injury is too remote from the negligence; or (2)
the injury is too wholly out of proportion to the
culpability of the negligent tort-feasor; or (3) in
retrospect it appears too highly extraordinary that the
negligence should have brought about the harm; or (4)
because allowance of recovery would place too
unreasonable a burden on the negligent tort-feasor; or
(5) because allowance of recovery would be too likely to
open the way for fraudulent claims; or (6) allowance of
recovery would enter a field that has no sensible or
just stopping point.
Coffey v. City of Milwaukee, 74 Wis. 2d 526, 541, 247 N.W.2d 132
(1976) (citations omitted).
3
No. 2018AP623.bh
should not receive the recompense for their attorneys' errors in
the same way a civil litigant can seek recovery. Hicks, 253
Wis. 2d 721, ¶41 ("Allowing civil recoveries to guilty plaintiffs
'impermissibly shifts responsibility for the crime away from the
convict.'" (quoted source omitted)). The guiding moral principle
is that those who commit crimes are always the primary cause of
any resulting criminal punishment notwithstanding errors by their
attorney. Id. ("Regardless of the attorney's negligence, a guilty
defendant's conviction and sentence are the direct consequence of
his own perfidy . . . ." (quoted source omitted)).
¶31 If the animating rationale of Hicks is correct, and its
result is therefore correct too, I do not see why we would
entertain any exceptions to it. This is where I part ways with
the majority. If the moral foundation of the actual innocence
rule pronounced in Hicks is sound, then the distinctions the
majority makes do not seem relevant. The majority suggests the
fact that a statute of limitations is an affirmative defense is
relevant to whether an exception should be granted. But what does
that have to do with the moral culpability of a criminal? I am
also unpersuaded by the majority's efforts to distinguish cases
where someone serves a sentence longer than is allowed by law from
a case like this where a person never should have served a single
day in prison had his attorney not been negligent. Time in prison
that should not have been served had the state's laws been followed
all looks the same to me, as Skindzelewski persuasively argues
here. I fail to see how the normative claims underlying the actual
innocence rule leave room for that type of hair-splitting.
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¶32 In sum, while I would entertain a rethinking of Hicks,
Skindzelewski does not ask us to do that here. Without briefing
and argument on these matters, I must accept the status quo; that
means accepting Hicks as our starting point. I see no principled
reason to distinguish this case from the rationale of Hicks, and
I therefore cannot with consistency craft an exception to the
actual innocence rule. Thus, although I do not join the majority's
rationale, I concur in the mandate.
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No. 2018AP623.rfd
¶33 REBECCA FRANK DALLET, J. (dissenting). David
Skindzelewski spent 122 days in prison as the result of his defense
counsel's negligence in failing to identify that the prosecution
against him was barred by the statute of limitations.1 The
conviction was vacated once defense counsel's negligence was
discovered, and Skindzelewski subsequently filed a legal
malpractice claim. Although defense counsel conceded his
negligence, the circuit court granted his motion for summary
judgment on the grounds that Skindzelewski could not prove his
"actual innocence," a requirement articulated by the court of
appeals in Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643
N.W.2d 809.2 Bound by Hicks, the court of appeals in this case
affirmed.
¶34 Skindzelewski petitions this court to create an
exception to the actual innocence rule, which the majority declines
to do. The public policy rationale upon which the Hicks actual
innocence requirement was founded does not apply in cases where
1 Skindzelewski was charged in March 2014 with theft by
contractor, pursuant to Wis. Stat. § 779.02(5) (2009-10), for
conduct that occurred in 2010. Because the amount taken was less
than $2,500, it was a Class A misdemeanor, which has a three-year
statute of limitations pursuant to Wis. Stat. § 939.74(1).
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2 Generally, "[t]o prevail in a legal malpractice action, a
plaintiff must prove four elements: (1) a lawyer-client
relationship existed; (2) the [attorney] committed acts or
omissions constituting negligence; (3) the attorney's negligence
caused the plaintiff injury; and (4) the nature and extent of
injury." Hicks v. Nunnery, 2002 WI App 87, ¶33, 253 Wis. 2d 721,
643 N.W.2d 809.
1
No. 2018AP623.rfd
defense counsel's failure to raise a valid statute of limitations
defense results in an unlawful conviction. A narrow exception to
the actual innocence rule should be established for such cases.
Accordingly, I dissent.
¶35 The Hicks court cited to five "policy considerations [it
found] to be persuasive and which informed" its decision to require
a criminal defendant to prove his or her actual innocence in a
legal malpractice action in order to recover.3 Hicks, 253
Wis. 2d 721, ¶39. Those policy considerations were:
 "permitting a convicted criminal to pursue a legal
malpractice claim without requiring proof of
innocence would . . . shock the public conscience,
engender disrespect for courts and generally
discredit the administration of justice";
 responsibility for the crime would impermissibly be
shifted away from the plaintiff;
 a guilty criminal has no right to a skillful
attorney who may succeed in obtaining an acquittal;
 "civil recovery by a guilty plaintiff is not
warranted because of 'the nature and function of
the constitutional substructure of our criminal
justice system'"; and
 unlike other victims of legal malpractice, a
wrongfully convicted plaintiff has the opportunity
to assert their Sixth Amendment right to effective
assistance of counsel.
Id., ¶¶40-44 (quoted sources omitted).
¶36 The five public policy reasons relied upon by the Hicks
court do not apply in a case such as this one, where defense
counsel's negligent failure to identify a valid statute of
3 These considerations emanated from one case in particular,
Wiley v. Cty. of San Diego, 966 P.2d 963, 985 (Cal. 1998).
2
No. 2018AP623.rfd
limitations defense was the sole cause of Skindzelewski's unlawful
conviction. First, Skindzelewski's prosecution and subsequent
incarceration was unlawful and thus recovery for the harm caused
would not "shock the public conscience" or "engender disrespect
for the courts." In fact, to deny that Skindzelewski was harmed
is disrespectful of the administration of justice and the
legislature's public policy choice to prohibit criminal charges
arising from remote misconduct. See John v. State, 96 Wis. 2d 183,
194, 291 N.W.2d 502 (1980).
¶37 Second, allowing Skindzelewski to recover is not
"rewarding this guilty defendant for his crime" as the majority
suggests, majority op., ¶22, because Skindzelewski was legally
innocent and, but for defense counsel's error, he could not have
been convicted. Even the majority appears to recognize that
conduct "solely attributable to the attorney's error and
completely detached from the defendant's criminal conduct" can
form the basis of an exception to the actual innocence rule.
Majority op., ¶18. Because Skindzelewski could not be convicted,
his situation is more akin to an innocent person wrongfully
convicted than to a guilty person taking advantage of his
wrongdoing.
¶38 Third, the success of Skindzelewski's claim that he was
unlawfully convicted had no relationship to the skillfulness of
his attorney. Unlike a motion to suppress evidence, which may
require a skilled attorney in order to prevail, raising a statute
of limitations defense requires only the basic legal competency of
reading the statute and bringing it to the attention of the circuit
3
No. 2018AP623.rfd
court judge.4 Moreover, proving a legal malpractice claim arising
from failure to raise the statute of limitations would not be
complicated, as no witnesses need to be called or persuasive
argument made. See Kevin Bennardo, A Defense Bar: The "Proof of
Innocence" Requirement in Criminal Malpractice Claims, 5 Ohio St.
J. Crim. L. 341, 360-61 (2007).
¶39 Fourth, Skindzelewski's malpractice claim does not arise
from defense counsel's failure to assert an alleged constitutional
violation, and thus the substructure of the criminal justice system
is not protective. The remedy of suppression and the bar on
prosecution beyond the statute of limitations serve different
purposes and the majority's attempt to analogize them fails. The
United States Supreme Court has repeatedly held that the sole
purpose of the exclusionary rule is "to deter future Fourth
Amendment violations." Davis v. United States, 564 U.S. 229, 236-
37 (2011). On the other hand, criminal statutes of limitations
serve to "protect the accused from having to defend himself against
charges of remote misconduct" and to "ensure that criminal
prosecutions will be based on evidence that is of recent origin."
John, 96 Wis. 2d at 194. While the exclusionary rule accomplishes
deterrence of future violations of constitutional rights, release
from prison alone does not accomplish the interest in ensuring
individuals are not penalized for remote misconduct.
¶40 Finally, the fact that Skindzelewski could raise a Sixth
Amendment claim resulting in his release from prison does not
4 In this case, Skindzelewski was facing a basic misdemeanor
charge which has a statute of limitations of three years, pursuant
to Wis. Stat. § 939.74(1).
4
No. 2018AP623.rfd
compensate him for the 122 days that he spent in prison solely due
to his defense counsel's negligence. The civil tort system's
purpose is to compensate an injured party and make them whole.
See Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶60, 293
Wis. 2d 123, 717 N.W.2d 258. The majority fails to adequately
explain why shifting the burden of defense counsel's malpractice
onto Skindzelewski is appropriate under these circumstances. See
Bennardo, supra ¶38, at 362 ("Disallowing a guilty defendant from
recovering from her negligent lawyer allows the lawyer to escape
responsibility for her wrongful conduct and shifts the burden of
the malpractice onto her client.").
¶41 A number of courts do not impose an actual innocence
public policy requirement in criminal legal malpractice cases and,
in those that do, there are several recognized exceptions.5 In a
case relied upon by the Hicks court, the Massachusetts Supreme
Court foreshadowed that an exception to the actual innocence
requirement could be appropriate in a case such as Skindzelewski's,
where defense counsel's negligence caused a defendant to be
convicted. See Glenn v. Aiken, 569 N.E.2d 783 (Mass. 1991). The
Glenn court distinguished between guilt in fact and legal guilt
and stated that it would "be difficult to defend logically a rule
5 Several courts have recognized an exception to the actual
innocence exception where a defendant's unlawful sentence is
divorced from his or her conduct. See Johnson v. Babcock, 136
P.3d 77 (Or. Ct. App. 2006); Powell v. Associated Counsel for
Accused, 106 P.3d 271, 272 (Wash. Ct. App. 2005); see also Hilario
v. Reardon, 960 A.2d 337, 345 (N.H. 2008) ("Nor do we agree that
using the actual innocence standard to create de facto immunity
from malpractice for criminal defense attorneys, no matter the
nature of their malpractice, nor when it occurs, so long as the
criminal defendant bears some degree of guilt, is sound public
policy.").
5
No. 2018AP623.rfd
that requires proof of innocence" where "a clear act of negligence
of defense counsel was obviously the cause of the defendant's
conviction of a crime." Id. at 787 (footnote omitted). In
addition, the Seventh Circuit has strongly suggested that proof of
actual innocence may not be required in a malpractice claim arising
from failure to identify a complete legal defense like the statute
of limitations. See Levine v. Kling, 123 F.3d 580, 582 (7th Cir.
1997); see also Susan M. Treyz, Criminal Malpractice: Privilege
of the Innocent Plaintiff?, 59 Fordham L. Rev. 719, 728 & n.65,
729 (1991) ("Imposing a requirement of innocence when an attorney
has failed to raise a statute of limitations defense shows
persuasively how the innocence requirement will hinder valid
criminal malpractice claims.").
¶42 Because the rationale for the actual innocence
requirement does not apply in Skindzelewski's case, I would create
a narrow exception in legal malpractice cases where defense
counsel's failure to raise a valid statute of limitations defense
results in an unlawful conviction. Accordingly, I would reverse
the court of appeals and remand the case to the circuit court with
an order to grant Skindzelewski summary judgment on liability and
to conduct further proceedings on damages.
¶43 For the foregoing reasons, I respectfully dissent.
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No. 2018AP623.rfd
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