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    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at http://www.wisbar.org/wislawmag. Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 7, July 2012

    Criminal Law

    Felon in Possession of Firearm – Constitutional Challenge Based on Right to Bear Arms

    State v. Pocian, 2012 WI App 58 (filed 11 April 2012) (ordered published 31 May 2012)

    In 1986, Pocian was convicted of writing forged checks, a felony. Twenty-four years later he was prosecuted under Wis. Stat. section 941.29, which prohibits a felon from possessing a firearm. He contended that 1) Wisconsin's ban on felons possessing firearms is unconstitutional; and 2) even if the ban on felons possessing firearms is not facially unconstitutional, the statute cannot be applied to him because he is a nonviolent felon. The circuit court rejected these facial and as-applied challenges. In a decision authored by Judge Reilly, the court of appeals affirmed.

    Because both the Second Amendment of the U.S. Constitution and article I, section 25 of the Wisconsin Constitution create an individual right to keep and bear arms, the court relied on District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (plurality opinion), in determining the constitutionality of Wis. Stat. section 941.29. In Heller, the U.S. Supreme Court held that the Second Amendment protects individuals' right to keep and bear arms; in McDonald, the Court incorporated and extended the right to the states. Among other things, the Heller Court stated that nothing in the decision "'should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms'" (¶ 9) (emphasis added by the Wisconsin Court of Appeals).

    As for the defendant's facial challenge to section 941.29, the court of appeals used intermediate scrutiny analysis (that is, a law is valid only if substantially related to an important governmental objective) and concluded that section 941.29 "is substantially related to the important governmental objective of enhancing public safety" (¶ 12). As the court of appeals stated in State v. Thomas, 2004 WI App 115, 274 Wis. 2d 513, 683 N.W.2d 497, "the legislature determined as a matter of public safety that it was desirable to keep weapons out of the hands of individuals who had committed felonies" (id.).

    The defendant also argued that, even if Wis. Stat. section 941.29 is constitutional when applied to other felons, it is unconstitutional when applied to him, because his felony conviction was for a nonviolent offense and thus there is no public safety rationale for depriving him of his right to keep and bear arms. The court of appeals disagreed.

    "The governmental objective of public safety is an important one, and we hold that the legislature's decision to deprive Pocian of his right to possess a firearm is substantially related to this goal. While Pocian did not utilize physical violence in the commission of his three felonies, he did physically take his victim's property. Additionally, most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm 'unvirtuous citizens.' The legislature has determined that Pocian's crimes are felonies. As such, Pocian has legislatively lost his right to possess a firearm" (¶ 15) (internal quotes and citation omitted).

    Mistreating Animals – "Intentionally" – Deadly Weapon

    State v. Klingelhoets, 2012 WI App 55 (filed 18 April 2012) (ordered published 31 May 2012)

    Klingelhoets shot and killed his neighbor's dog using a high-powered air (pellet) rifle equipped with a scope. The dog was tied to a stake in an adjacent yard, and the defendant claimed that its barking annoyed him. He shot the dog three times from a distance of approximately 140 feet; all three pellets penetrated the dog's skin, the last shot penetrating the spinal canal and killing the dog. A jury convicted Klingelhoets of one felony count of intentionally mistreating an animal and one misdemeanor count of shooting a tied animal with a deadly weapon.

    The court of appeals affirmed in an opinion authored by Judge Gundrum. Addressing the felony mistreatment-of-animals count, the court construed the elements of Wis. Stat. sections 951.02 and 951.18(1). The defendant contended that the state must prove that he intended to kill the dog. The court rejected his argument.

    "[T]he plain language of Wis. Stat. § 951.18(1) does not require a defendant to have intentionally mutilated, disfigured or caused an animal's death for that defendant to be guilty of the Class I felony because 'intentionally' modifies only the first clause of the relevant penalty provision. As such, the State only needed to prove Klingelhoets intended to treat Shakes [the dog] in a cruel manner and that this cruel treatment resulted in Shakes' mutilation, disfigurement or death. Klingelhoets does not dispute that the State proved this" (¶ 17). The court buttressed its conclusion by looking at other penalty provisions that the legislature treats differently (see ¶ 19).

    Sufficient evidence also supported the misdemeanor conviction for shooting a tied animal with a deadly weapon. The defendant contended that the air rifle was not a "deadly weapon," an argument belied by the "powerful evidence" that the third pellet penetrated the dog's skin, lodged in its spinal column, and caused its death (¶ 24).

    Evidence

    Hearsay – Ancient Documents

    Horak v. Building Servs. Indus. Sales Co., 2012 WI App 54 (filed 17 April 2012) (ordered published 31 May 2012)

    George Benzinger's daughter and estate (the plaintiff) sued Building Services Industrial Sales Co. (BSIS), a contractor, alleging it supplied products containing asbestos that caused the lung cancer that killed Benzinger. To counter BSIS's summary judgment motion, the plaintiff produced 50 pages of invoices to prove that BSIS sold asbestos products to Benzinger's employer. The circuit court ruled that the invoices were inadmissible hearsay and granted BSIS's summary judgment motion.

    The court of appeals reversed in an opinion written by Judge Brennan. The court held that the invoices were admissible under the ancient-documents exception to the hearsay rule (Wis. Stat. § 908.03(16)) and properly authenticated pursuant to Wis. Stat. section 909.015(8). BSIS's contention that no living person could verify the documents' authenticity went to the weight of the evidence, not its admissibility (see ¶ 15).

    Insurance

    Reducing Clause – Umbrella Coverage

    Veto v. American Family Mut. Ins. Co., 2012 WI App 56 (filed 12 April 2012) (ordered published 31 May 2012)

    A sheriff's deputy was seriously injured when he was struck by the uninsured driver of a stolen car. At the time, the deputy was acting within the scope of his employment. The deputy was insured by two American Family policies: a family-car policy with limits of $100,000 per person and $300,000 per accident and a personal-liability umbrella policy with limits of $1 million per occurrence. The deputy received about $340,000 in worker's compensation payments.

    An issue arose whether a reducing clause in the automobile policy was incorporated into the umbrella policy. The circuit court ruled that the reducing clause applied to the umbrella coverage and that the insurer's liability ($1 million) thus should be reduced by the amount its insured (the deputy) received in worker's compensation payments ($340,000).

    The court of appeals reversed in an opinion authored by Judge Sherman. "The central issue before us is thus whether the reducing clause in the uninsured and underinsured motorists coverage of the underlying auto policy is unambiguously incorporated into the endorsement to the umbrella policy, which provides in relevant part: 'However, Uninsured and Underinsured Motorists Coverage under this policy will be no broader than the underlying insurance'" (¶ 9).

    The court interpreted the term in light of the "entire endorsement" (¶ 13). "[V]iewing the 'no broader than' phrase in the context of the entire endorsement fails to lead to the unambiguous conclusion that a reasonable person in the position of the insured would understand the term as incorporating all of the terms of the underlying coverage" (¶ 16). For example, the uninsured motorist coverage could not be reasonably incorporated into the umbrella because this "would negate the value of having $1,000,000 of additional coverage in the umbrella policy. A reasonable policyholder would not pay the additional premium for an endorsement in order to get nothing additional" (see ¶ 16).

    "Since incorporating the coverage limit of the underlying policy into the umbrella policy endorsement would lead to absurd results, it seems clear that the limit of coverage is not intended by the parties to be included in the 'no broader than' language of the endorsement. Likewise, however, the reducing clause affects only the dollar amount of coverage and not its scope. Nothing in the 'no broader than' language alerts a reasonable policyholder to the difference between the two coverage limitations" (¶ 17).

    Assuming that American Family's incorporation argument was also reasonable, the court held that there were two reasonable interpretations of the policy language. This rendered the policy ambiguous. "Therefore the reducing clause does not apply to the umbrella coverage" (¶ 19).

    Homeowner's Insurance– "Insured" – "Domestic Duties"

    Marnholtz v. Church Mut. Ins. Co., 2012 WI App 53 (filed 26 April 2012) (ordered published 31 May 2012)

    The incident underlying this litigation occurred on rural property for which the owners carried a homeowner's policy that insured them and other "insureds." Included in the definition of insureds were "persons in the course of performing domestic duties that relate to the 'insured premises'" (¶ 4). The owners permitted Leach to live rent-free in a "hunting shack," provided he guarded and maintained the 160-acre property. In July 2008, Marnholtz was injured while helping Leach install siding on the hunting shack. Marnholtz sued Leach. The circuit court ruled that Leach was not an insured for purposes of the homeowner's policy.

    The court of appeals reversed in an opinion written by Judge Sherman. The policy did not define domestic duties, and dictionaries offered a wide array of definitions, both broad and narrow. "The evidence is undisputed that the hunting shack was built and added on to a number of years prior to Marnholtz's injuries, and had been lived in on either a part-time or full-time basis for years. The installation of siding was not part of the structure's actual erection, but rather an improvement to the existing structure" (¶ 16).

    "[W]hile the narrow definition of domestic duties favored by Church Mutual is reasonable, so is the broader definition that could include routine maintenance like repairing broken window glass and, perhaps, repair or installation of new siding. Because the term 'domestic duties' is susceptible to more than one reasonable interpretation, the phrase is ambiguous and therefore we must construe it in favor of coverage" (¶ 17).

    Torts

    Governmental Immunity – Ministerial-Duty Exception – Known-Danger Exception

    American Family Mut. Ins. Co. v. Outagamie Cty., 2012 WI App 60 (filed 17 April 2012) (ordered published 31 May 2012)

    A county employee whose job duties included directing traffic with a flag at a road-construction site allegedly caused a multiple-vehicle accident. The injured parties sued the county. The circuit court ruled that governmental immunity precluded liability and that no exception applied.

    The court of appeals affirmed in an opinion, written by Judge Peterson, that explored various exceptions to governmental immunity. There was no dispute that governmental immunity protected the county unless an exception applied (see ¶ 10).

    First, the ministerial-duty exception was inapplicable because no statute, regulation, or policy imposed any duty. "Moreover, even assuming the County had a duty to ensure reasonably safe travel during the road construction on Highway JJ, this duty would be discretionary, not ministerial. How to safely control traffic in a construction zone is an inherently discretionary decision, requiring the County to exercise its judgment" (¶ 14). Arguments to the effect that the county should not have used "a flagger to control traffic because doing so was not reasonably safe … go[] to whether the County's decision was negligent, not whether the County is entitled to immunity" (¶ 15).

    Nor did the county have a ministerial duty to use more flaggers at the site per a manual issued by the U.S. Department of Transportation. The court was not persuaded, for several reasons, that the manual imposed any such duty (see ¶ 21). Finally, the court agreed that "a flagger who is directing traffic must make split-second decisions that require the flagger to use his or her judgment. The exercise of judgment is a hallmark of a discretionary, as opposed to ministerial, act" (¶ 24).

    Second, the known-danger exception was also inapplicable. "[T]he known danger exception applies when 'there exists a danger that is known and compelling enough to give rise to a ministerial duty on the part of a municipality or its officers'" (¶ 25). Relying on case law, the court held that "the County had discretion to decide how to address any danger presented by the lane closure at the intersection of Highways JJ and N. The County took some action to respond to the potential danger, placing flaggers at and near the intersection to control traffic. Although the County could have used other measures to control traffic, such as additional flaggers or temporary traffic lights, the County was not required to do so. The potentially dangerous situation at the intersection did not compel any particularized response by the County, and, like the officer in [a prior case] the County did something to address the potential danger" (¶ 30).

    Unemployment Compensation

    Voluntary Termination – Refusal to Sign Disciplinary Notice

    Kierstead v. LIRC, 2012 WI App 57 (filed 3 April 2012) (ordered published 31 May 2012)

    Kierstead worked as a service and installation technician for Sterling Water Inc. On Sept. 22, 2009, Sterling issued Kierstead a written warning for his unsatisfactory work-related conduct. On Oct. 21, 2009, Sterling Water's service manager, Holbrook, attempted to issue Kierstead a written disciplinary notice based on Kierstead's interaction the previous day with a coworker. Holbrook asked Kierstead to sign the bottom of the form in a box that stated: "I HAVE READ AND RECEIVED A COPY OF THIS FORM." Directly above the box was an area for the "EMPLOYEE[']S STATEMENT[,]" also with signature and date lines. There is no indication on the form that an employee would be admitting any conduct or wrongdoing by signing the form.

    Kierstead informed Holbrook he disagreed with the warning notice and would not sign it. Kierstead was told that he would be terminated if he did not sign the form. After he continued to refuse to sign the form, he was terminated.

    The Department of Workforce Development (DWD) determined Kierstead was ineligible for unemployment benefits. Kierstead appealed to an administrative law judge (ALJ), who affirmed the DWD's initial determination. The Labor and Industry Review Commission (LIRC) adopted the ALJ's findings. The circuit court reversed LIRC's decision. In an opinion authored by Judge Hoover, the court of appeals reversed.

    As a general rule, an employee who voluntarily terminates employment is ineligible for unemployment insurance benefits. See Wis. Stat. § 108.04(7)(a). One exception, laid out in Wis. Stat. section 108.04(7)(b), is that an employee may receive benefits if he or she voluntarily terminates employment "with good cause attributable to the employing unit" (see ¶ 8). Good cause attributable to the employer means some act or omission by the employer justifying the employee's decision to quit; it involves some fault on the part of the employer and must be real and substantial (see ¶ 10). The issue before the court was whether an employee's refusal to sign a disciplinary form constitutes a quit without good cause when signing would not have been an admission to the alleged misconduct.

    LIRC suggested that "the proper approach is that a failure to sign an employee disciplinary form is never an automatic quit without good cause when signing would not constitute an admission of conduct, and that this situation always requires a good cause inquiry into whether the employee knew signing would not be an admission" (¶ 25). The court of appeals concluded that this is the most reasonable application of the controlling statute (see ¶ 26). And, on the facts of this case, it held that LIRC reasonably determined that the evidence did not support a conclusion that the employee believed signing the form was tantamount to admitting to the conduct. Thus, Kierstead's voluntary termination was not a result of good cause attributable to the employer under Wis. Stat. section 108.04(7)(b) (see ¶ 28).

    Wisconsin Caregiver Law

    Permanent Ban from Holding Childcare License Because of Certain Prior Convictions – Constitutional Challenges

    Brown v. Department of Children & Families, 2012 WI App 61 (filed 24 April 2012) (ordered published 31 May 2012)

    Brown operated a childcare facility. She lost her state license pursuant to provisions of the caregiver law enacted by 2009 Wisconsin Act 76. Among other things, the law permanently bars individuals who have been convicted of "fraudulent activity" involving food stamps from holding childcare licenses (see ¶ 26). The Department of Children and Families (DCF) notified Brown in 2010 that her childcare license had been revoked under the new childcare law on the basis of a conviction in 1991 for what the DCF concluded was an offense involving fraudulent activity while Brown was receiving public assistance. The circuit court affirmed the DCF's decision to revoke Brown's license.

    In a decision authored by Judge Curley, the court of appeals affirmed. After finding that Brown's 1991 conviction involved an offense that would trigger the revocation of her current childcare license, the court considered several constitutional challenges raised by Brown. It concluded that the new caregiver law does not violate Brown's right to due process because it affords her adequate postrevocation remedies (see ¶ 33).

    Further, the new law does not violate Brown's right to equal protection because it "is rationally related to the legitimate purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past from obtaining government funding in the form of childcare subsidies" (¶ 40). The court also held that the law's application to Brown did not deny her equal protection. Said the court, "she points to no evidence that she was treated differently from any similarly-situated childcare provider whose license was revoked under the new law" (¶ 43).




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