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Mrozek v. Intra Financial Corp.6/9/2005
he opposite view, that a plea agreement is qualitatively different from a conviction following a trial. See, e.g., Rawling v. City of New Haven, 537 A.2d 439 (Conn. 1988); Prudential Prop. & Cas. Ins. Co. v. Kollar, 578 A.2d 1238, 1240-41 (N.J. Super. Ct. App. Div. 1990). These states are supported by the Restatement (Second) of Judgments § 85 cmt. b, which states:
b. Actual Adjudication
The rule of this Section presupposes that the issue in question was actually litigated in the criminal prosecution. See § 27, Comment e. Accordingly, the rule of this Section does not apply where the criminal judgment was based on a plea of nolo contendere or a plea of guilty. A plea of nolo contendere by definition obviates actual adjudication and under prevailing interpretation is not an admission. A defendant who pleads guilty may be held to be estopped in subsequent civil litigation from contesting facts representing the elements of the offense. However, under the terms of this Restatement such an estoppel is not a matter of issue preclusion, because the issue has not actually been litigated, but is a matter of the law of evidence beyond the scope of this Restatement.
Also, 18B C. Wright & A. Miller, Federal Practice & Procedure, § 4474.1 (3d ed. 2002) states:
The desire to avoid a civil adjudication that is inconsistent with a plea-based conviction should not, in principle, go beyond use in evidence or judicial estoppel to reach issue preclusion. The conviction does not rest on actual adjudication or determination of any issue. Just as issue preclusion should not rest on civil judgments by consent, stipulation, or default, so it should not rest on a plea of guilty.
Ultimately, our determination depends not on the number of jurisdictions or authorities supporting a view, but rather on the persuasiveness of each position. We conclude that the following statement from the New Jersey Superior Court properly explains why applying issue preclusion should not be available based on a guilty plea:
[A guilty plea] represents the decision of the defendant "to forego such litigation and usually for reasons having little or nothing to do with the nature of the issues." . . . The motives for the State and a criminal defendant to make a plea agreement are many. The State may be seeking to conserve its scarce resources by avoiding a trial and a defendant may be attempting to secure his freedom or at least a reduced term of incarceration. Such reasons have little or nothing to do with the determination of the issues in the [later action].
Kollar, 578 A.2d at 1240-41. While a Wisconsin circuit court must make an inquiry sufficient to satisfy it that the defendant committed the crime before accepting the plea, such an inquiry is not the same as a fully litigated trial between adversarial parties resulting in the fact-finder determining that the facts prove the defendant committed the crime. For example, a circuit court may satisfy its obligation of inquiry under Wis. Stat. § 971.08(1)(b) by incorporating by reference the facts adduced at the preliminary hearing. State v. Duychak, 133 Wis. 2d 307, 315, 395 N.W.2d 795 (Ct. App. 1986). Furthermore, a defendant who pleads guilty need not admit the facts of a crime that has been charged as a precondition to a court accepting his or her plea. State v. Thomas, 2000 WI 13, , 232 Wis. 2d 714, 605 N.W.2d 836. Therefore, we conclude that Mrozek's guilty pleas do not fulfill the "actually litigated" requirement for issue preclusion.
2. Judicial Estoppel/Public Policy
Alternatively, Mallery urges us to conclude that Mrozek's negligence claim is barred by judicial estoppel or
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