                                                            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                                     (2019 – unpublished)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
                                           14
                                                                     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



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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).

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                                                      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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                                                   No.   2018AP623.bh


     ¶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.




                                5
                                                                  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.

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                                                           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



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                                                                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).

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                                                          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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