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Mrozek v. Intra Financial Corp.6/9/2005
imit on subsequent litigation, the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and be necessary to the judgment. Town of Delafield v. Winkelman, 2004 WI 17, , 269 Wis. 2d 109, 675 N.W.2d 470; Michelle T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993). If the issue actually has been litigated and is necessary to the judgment, the circuit court must then conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand. Paige K.B., 226 Wis. 2d at 220-21. For this analysis, the circuit court considers any of the following factors that are relevant to its decision: (1) whether the party against whom preclusion is sought could have obtained review of the judgment; (2) whether the question is one of law that involves two distinct claims or intervening contextual shifts in the law; (3) whether there are apt to be significant differences in the quality or extensiveness of the two proceedings such that relitigation of the issue is warranted; (4) whether the burden of persuasion has shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and (5) whether matters of public policy or individual circumstances would render the application of issue preclusion fundamentally unfair, including whether the party against whom preclusion is sought had an inadequate opportunity or incentive to obtain a full and fair adjudication of the issue in the initial litigation. Michelle T., 173 Wis. 2d at 688-89 (citing Restatement (Second) of Judgments § 28 (1980)). Some of these factors are decided as questions of law, e.g., factors 1, 2 and 4. Paige K.B., 226 Wis. 2d at 223-24. Other factors require the circuit court to exercise its discretion, for example, factors 3 and 5. Id. at 225.
In this case, Mallery contends that Mrozek's guilty pleas fulfill the requirement that the issue of whether Mallery provided satisfactory legal advice for tasks relating to the construction and financing of the motel actually has been litigated. We have never squarely confronted the question whether issue preclusion may apply as a consequence of a guilty plea. However, after reviewing a wide range of authorities, we conclude that issue preclusion is not available based on Mrozek's guilty pleas.
There is conflict among jurisdictions on the effect a guilty plea has on the availability of issue preclusion. The court of appeals relied on decisions from Iowa and Missouri in concluding that issue preclusion could apply following a guilty plea. See James v. Paul, 49 S.W.3d 678, 686-88 (Mo. 2001) (observing that jurisdictions "have split fairly evenly, the recent trend being to apply [issue preclusion] defensively in a civil proceeding following a plea of guilty"); see also Ideal Mut. Ins. Co. v. Winker, 319 N.W.2d 289, 294-96 (Iowa 1982). The reasoning behind this view is that before a guilty plea is accepted, the circuit court must ascertain that there is a factual basis for the plea. See, e.g., State v. Bangert, 131 Wis. 2d 246, 266-67, 389 N.W.2d 12 (1986). Wisconsin statutes also require that a criminal court undertake this analysis. Wisconsin Stat. § 971.08(1) provides in part:
(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
However, many states hold t
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