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    Wisconsin Lawyer
    September 01, 2014

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

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

    Administrative Law

    Challenge to Agency Rules and Policies – Service Required on Joint Committee for Review of Administrative Rules

    Mata v. Department of Children & Families, 2014 WI App 69 (filed 13 May 2014) (ordered published 25 June 2014)

    HOLDING: The court of appeals lacked competency to decide a challenge to an agency policy that the petitioner claimed was actually an administrative rule because the petitioner failed to serve the Joint Committee for Review of Administrative Rules with a copy of her petition for declaratory judgment.

    SUMMARY: Petitioner Mata appealed an opinion of an administrative law judge (ALJ) in the Division of Hearings and Appeals upholding a decision by the Department of Children and Families that she received more Wisconsin Shares child-care subsidy payments than she was entitled to receive, because, among other reasons, her most recent employer was not a “qualified employer” as defined by the Wisconsin Shares Child Care Assistance Manual. Mata challenged the ALJ’s decision on several grounds, including its reliance on policy that is actually an administrative rule that was not properly promulgated. She argued that policy provisions in the manual are rules because they establish who constitutes a “qualified employer” for purposes of the Wisconsin Shares program.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In a decision authored by Judge Curley, the court of appeals concluded that it did not have competency to review the issue as advanced by the petitioner. “Under Wis. Stat. § 227.40(5) (2011-12), Mata was required to serve the Joint Committee for Review of Administrative Rules with a copy of her petition for declaratory judgment; however, she did not do so. Unfortunately, the consequence for Mata’s failure to properly serve the Joint Committee is lack of jurisdiction to hear the case” (¶ 10).

    Mata argued that the requirements of Wis. Stat. section 227.40 do not apply to her because she is challenging a policy, not a rule. The court of appeals disagreed. “Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213, 247 Wis. 2d 589, 634 N.W.2d 593, makes clear that a challenge to a policy on the basis that it is actually a rule is to be construed as a challenge to the validity of a rule, and that the requirements of § 227.40 do indeed apply” (¶ 13).

    In a concurring opinion, Judge Fine wrote to contend that the part of the Heritage Credit Union case that the court had to follow as a matter of precedent for this case was wrong (see ¶ 27). Judge Kessler joined the concurrence to urge the supreme court to review and overrule the holding in Heritage Credit Union (see ¶ 38).

    Attorneys

    Evidentiary Privilege – Entity Clients – Waiver/Exceptions – Current Directors

    Fouts v. Breezy Point Condo. Ass’n, 2014 WI App 77 (filed 17 June 2014) (ordered published 30 July 2014)

    HOLDING: A condominium association, as an “entity” client, properly claimed the attorney-client privilege against demands for disclosure of privileged information by one of its own directors.

    SUMMARY: Fouts was a member, unit owner, and director of a condominium association who was locked in an ongoing battle with the association board, which deemed him a “serial litigator” (¶ 5). Fouts filed this action against the association, claiming punitive damages and demanding the disclosure of “attorney client” files without redaction. The board refused. The circuit court granted summary judgment in favor of the board, ruling that the board had the authority to withhold privileged information from a current director.

    The court of appeals affirmed in an opinion authored by Judge Mangerson. It was not necessary for the condominium association to file a motion for summary judgment; the court has power to grant such motions whenever it appears appropriate and regardless of a motion (see ¶ 11).

    The opinion discusses the status of “entity” clients, such as corporations. The court upheld the right of the board to assert the attorney-client privilege against demands by a current director. Case law holding that former directors could not access privileged information over an entity’s objection applied with equal force to current directors who are outvoted (here a majority) on the board (see ¶¶ 17-18). Fouts and the association stipulated that the entity had asserted the privilege and refused to waive it. “The privilege is absolute, unless one or more of the exceptions set out in Wis. Stat. § 905.03(4) applies, or it is waived by operation of Wis. Stat. § 905.11” (¶ 19).

    The court of appeals also rejected Fouts’ contention that the exception for “joint clients” gave him access. Fouts first asserted this argument in his reply brief. Further, it runs counter to the entity rule; the association, not Fouts, was the client (see ¶ 21). Moreover, Fouts’ claim for punitive damages belied any claim that he was personally disinterested (see ¶ 23). Nor did Wisconsin law require the circuit court to label him a “dissident” director.

    The court next addressed whether Fouts’ fiduciary duties as a director somehow “trump[ed]” the privilege. They did not. Here, the court quoted the trial judge’s careful balancing of public policy in reaching this conclusion (see ¶ 26). On a related point, the court also rejected Fouts’ undeveloped arguments about whether Wis. Stat. chapter 703 affects the outcome (see ¶ 30).

    Nor was it the trial judge’s responsibility to provide Fouts with a roadmap for accessing the privileged information. Since Fouts was in the “driver’s seat of the litigation,” it was incumbent on him to produce a discovery plan, including a privilege log (¶ 27).

    Finally, the circuit court properly ordered Fouts to pay statutory attorney fees and judgment costs (see ¶ 32).

    Criminal Procedure

    Searches – Exigent Circumstances

    State v. Kirby, 2014 WI App 74 (filed 11 June 2014) (ordered published 30 July 2014)

    HOLDING: A police officer’s search of a closed backpack in an apartment was justified by exigent circumstances: the information that the backpack might contain a shotgun.

    SUMMARY: Two police officers were investigating a minor fracas involving five men when they received a phone call indicating that a black backpack contained a shotgun. An officer then searched the backpack, which contained a loaded sawed-off shotgun and defendant Kirby’s identification. The circuit court denied his motion to suppress the evidence. Kirby was convicted of possessing a sawed-off shotgun.

    The court of appeals affirmed in an opinion written by Chief Judge Brown. The court held that it was immaterial whether the officer was inside or outside the threshold of the apartment because exigent circumstances would have justified the entry regardless (see ¶ 18). Consent aside, “the fact is that so long as [the officer] was standing in the vicinity of this group of men when she received information that they might possess a backpack with loaded weapons in it, her search for and seizure of the backpack was, at that moment, justified by exigent circumstances” (¶ 19). The lawful search extended to the backpack’s contents. The court also emphasized that Kirby initially “disclaimed any ownership interest” in the backpack when asked by the officers (see ¶ 21).

    Effective Assistance of Counsel – Ineffectiveness Claim Based on Attorney’s Broken Promise in Opening Statement that Defendant Would Testify

    State v. Krancki, 2014 WI App 80 (filed 18 June 2014) (ordered published 30 July 2014)

    HOLDING: The defendant was not denied effective assistance of counsel when his attorney made, in opening statements, what turned out to be a broken promise that the defendant would testify at trial.

    SUMMARY: Defendant Krancki was charged with operating a vehicle while intoxicated (OWI). Before trial, Krancki insisted to his trial counsel that he had not been operating his vehicle at the time of his arrest, that someone named “Jason” had been driving his vehicle instead, and that he wanted to testify regarding “Jason.” Although Krancki’s counsel promised during opening statements that Krancki would testify that “Jason” had been driving the vehicle, Krancki changed his mind about testifying during the trial and in fact never testified. His attorney later explained in a hearing that he was able to persuade Krancki on the second day of trial to refrain from testifying because “it became clear to me that the jury simply was not buying the idea that there was somebody else driving,” and “if I put him on the stand, there was simply no way that he wasn’t going to hurt our case” (¶ 8).

    On appeal Krancki argued, among other things, that his attorney’s performance was deficient because his (Krancki’s) “unexplained failure to testify likely diminished trial counsel’s credibility in the eyes of the jurors and fueled a host of prejudicial inferences about the evidence” (¶ 9).

    In a decision authored by Judge Reilly, the court of appeals affirmed. Said the court, “Krancki’s argument overlooks that his trial counsel was largely following Krancki’s directives when he made the decisions about which Krancki now complains. Supreme Court Rule 20:1.2(a) requires counsel to ‘abide by the client’s decision, after consultation with the lawyer, as to … whether the client will testify.’ The choice of whether to testify is both a tactical decision and a criminal defendant’s constitutional right. State v. Albright, 96 Wis. 2d 122, 129, 291 N.W.2d 487 (1980). ‘A defendant who insists on making a decision which is his or hers alone to make in a manner contrary to the advice given by the attorney cannot subsequently complain that the attorney was ineffective for complying with the ethical obligation to follow his or her undelegated decision.’ State v. Divanovic, 200 Wis. 2d 210, 225, 546 N.W.2d 501 (Ct. App. 1996)” (¶ 10).

    The court concluded that “even though trial counsel had doubts about Krancki’s story, counsel was ethically bound to Krancki’s decision to testify as that was Krancki’s constitutional right, and counsel’s brief statement to the jury about Krancki’s testimony was a direct result of a decision dictated by Krancki. ‘If a defendant selects a course of action, that defendant will not be heard later to allege error or defects precipitated by such action. Such an election constitutes waiver or abandonment of the right to complain.’ State v. Robles, 157 Wis. 2d 55, 60, 458 N.W.2d 818 (Ct. App. 1990) (citation omitted)” (¶ 11). Further, under the facts of this case, the appellate court concluded that “no prejudice flowed from [defense counsel’s] broken promise” that his client would testify (¶ 12).

    Destruction of Evidence – Due Process

    State v. Weissinger, 2014 WI App 73 (filed 25 June 2014) (ordered published 30 July 2014)

    HOLDING: The defendant was not denied due process of law when the state was permitted to introduce evidence of a controlled substance in her blood even though the state had destroyed the blood sample from which the evidence was obtained.

    SUMMARY: In July 2009, Weissinger’s vehicle struck a motorcycle, seriously injuring the motorcycle operator. Although Weissinger was not arrested at the scene, she consented to a blood draw. Testing of the blood by the State Laboratory of Hygiene revealed the presence of THC. The lab destroyed the blood sample in April 2010 because the six-month period for retaining the sample had expired. In May 2010, Weissinger was charged with causing great bodily harm by driving with a detectable amount of a controlled substance in her blood. One year later, she moved to retest the sample and to dismiss the case because the blood sample had been destroyed.

    The circuit court denied the motion, and a jury found the defendant guilty. On appeal, she argued that the circuit court erred in allowing the state to present evidence of the blood test results because Wis. Stat. section 971.23(5) gave her the right to retest the blood sample and because the failure to preserve the blood sample denied her due process.

    In a decision authored by Judge Neubauer, the court of appeals affirmed. Relying on Arizona v. Youngblood, 488 U.S. 51 (1988), the court concluded that “a defendant’s due process rights as to the loss of evidence are violated if the police (1) fail to preserve evidence that is apparently exculpatory or (2) act in bad faith by failing to preserve evidence that is potentially exculpatory. Thus, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Bad faith can only be shown if (1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and (2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence” (¶ 10) (internal quotations and citations omitted).

    Here, the defendant has not shown that the blood sample was apparently exculpatory when it was destroyed. Because the evidence was only “potentially useful,” she would have to show that it was destroyed in bad faith; she made no such assertion (¶ 13).

    The court further concluded that the blood sample itself was not subject to discovery under Wis. Stat. section 971.23(5). “While § 971.23(5) gives a defendant the right to inspect reports of the results of blood tests, it does not provide for inspection or testing if the blood itself is not going to be introduced into evidence” (¶ 16).

    Chief Judge Brown filed a concurring opinion that was principally a response to a dissent filed by Judge Reilly.

    Garnishments

    Wages Earned Outside of Wisconsin – Jurisdiction

    Midland Funding LLC v. Mizinski, 2014 WI App 82 (filed 17 June 2014) (ordered published 30 July 2014)

    HOLDING: The Wisconsin circuit court properly issued an in personam order directing the defendant’s out-of-state employer to remit a portion of the defendant’s wages to the plaintiff.

    SUMMARY: Midland Funding LLC (Midland) obtained a civil judgment against defendant Mizinski in St. Croix County, Wis. Midland subsequently filed an earnings garnishment notice in St. Croix County naming NCH Corporation as garnishee. Mizinski is employed by Danco Inc., a subsidiary of NCH. Danco was served in Texas. Mizinski moved to quash the garnishment, arguing that garnishment is a proceeding in rem and, accordingly, that to garnish his wages, the circuit court needed in rem jurisdiction over the wages. He asserted that the Wisconsin court lacked in rem jurisdiction because his wages were not located in Wisconsin. In support of his argument, Mizinski submitted evidence that Danco’s headquarters are located in Irving, Texas. The circuit court denied the motion to quash.

    In a decision authored by Judge Stark, the court of appeals affirmed. It concluded that “in rem jurisdiction over the wages was not required. Pursuant to Dalton v. Meister, 71 Wis. 2d 504, 239 N.W.2d 9 (1976), the circuit court could properly issue an in personam order directing Mizinski’s employer to remit a portion of his wages to Midland Funding…” (¶ 1). (There was no dispute in this case that the Wisconsin court had personal jurisdiction over the out-of-state employer (see ¶ 15).)

    Insurance

    UIM – Stacking – Intra-Policy Stacking

    Bodish v. West Bend Mut. Ins. Co., 2014 WI App 78 (filed 10 June 2014) (ordered published 30 July 2014)

    HOLDING: In a situation in which a county paid a single premium for underinsured motorist (UIM) coverage and not separate premiums for each vehicle, stacking of the UIM coverage for each county vehicle was not mandated.

    SUMMARY: A deputy sheriff, Bodish, was injured while driving a county-owned vehicle. Bodish settled with the insurance companies and assigned his rights to his UIM insurer, West Bend, which claimed that Wis. Stat. section 632.32(6)(d) requires the county’s insurer (County Mutual) to “stack” the UIM coverage in its policy by multiplying the total number of county-owned vehicles by the policy’s UIM limits. Under this view, County Mutual was “on the hook for up to $42 million in coverage” (¶ 3). The circuit court ruled that the County Mutual policy was not subject to stacking and its total liability was the $100,000-per-person UIM limit.

    The court of appeals affirmed in an opinion, authored by Judge Brennan, that distinguishes between “inter-policy stacking” and “intra-policy stacking.” Case law defines intra-policy stacking as “coverage under a single policy that covers multiple vehicles, with a separate premium attributable to each vehicle” (citations omitted; emphasis added) (¶ 11). The uncontested evidence in the record showed that the county paid a single premium that covered all its vehicles (see ¶ 12). The court rejected West Bend’s contentions that separate premiums are not required for intra-policy stacking and that the county’s premium depended on the number of vehicles in the county’s fleet. In sum, the stacking requirement in Wis. Stat. section 632.32(6)(d) was inapplicable (see ¶ 17).

    Landlord-Tenant Law

    Evictions – Public Housing

    Milwaukee City Housing Authority v. Cobb, 2014 WI App 70 (filed 28 May 2014) (ordered published 25 June 2014)

    HOLDING: The circuit court lacked competency over the housing authority’s eviction action because the tenant had not received proper notice.

    SUMMARY: Cobb, age 62 and disabled, was evicted from his public housing unit because he allegedly smoked marijuana in violation of his lease. The parties agreed that the housing authority filed the eviction action without giving Cobb the five-day, right–to-cure notice required by Wis. Stat. section 704.17(2)(b). Failure to comply with this statute deprives the circuit court of competency to enter an eviction judgment (see ¶ 2). The circuit court, however, entered the judgment.

    The court of appeals reversed in an opinion authored by Judge Fine. The court rejected the housing authority’s contention that federal law preempted the right-to-cure statute. The opinion explored the pertinent state and federal regulations, concluding that federal law did not preempt the state’s notice requirement.

    “[A]s we have already set out at some length, the minimal right-to-cure period here (five days) and the overarchingly critical consequence of having a judicial tribunal ultimately decide whether, in fact, the tenant has cured (that is, the right to cure does not give the tenant a free pass for whatever ‘criminal activity’ the Housing Authority contends violated the lease) persuades us that federal law does not preempt Wis. Stat. § 704.17(2)(b), to which, as we have already seen, the Housing Authority bound itself in the lease that it drafted.… The Housing Authority notice to Cobb did not comply with
    § 704.17(2)(b)” (¶ 14).

    Motor Vehicle Law

    Implied-Consent Law – Obtaining Blood Sample from Driver Involved in Serious Accident – Constitutionality of Wis. Stat. section 343.305(3)(ar)2.

    State v. Padley, 2014 WI App 65 (filed 22 May 2014) (ordered published 25 June 2014)

    HOLDING: The circuit court did not err in denying the defendant’s motion to suppress the results of a blood test from a driver involved in a serious accident when there was reason to believe the driver violated a traffic law.

    SUMMARY: Defendant Padley’s automobile was involved in a serious accident with a motorcycle in which the motorcycle passenger was seriously injured. After interviewing Padley at the crash scene, the deputy asked her to perform field sobriety tests, which she did. The deputy observed no signs of impairment. The deputy then requested that Padley accompany him to the sheriff’s department for a blood draw pursuant to Wis. Stat. section 343.305(3)(ar)2., which became part of the implied-consent law in 2010.

    This statute provides that a law enforcement officer is authorized to request that a person submit to a blood draw, using an “Informing the Accused” form with language taken from Wis. Stat. section 343.305(4), when that person “is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that [the operator of the vehicle] violated any state or local traffic law.” Padley consented to a blood draw after the deputy read to her the Informing the Accused form, which gave Padley the choice of submitting to a chemical test or being sanctioned with automatic penalties that include driver’s license revocation. The blood test revealed the presence of a controlled substance, which the state relied on in this prosecution.

    Padley moved to suppress the results of the blood test, raising numerous arguments as described below. The circuit court denied the motion. In a decision authored by Judge Blanchard, the court of appeals affirmed.

    The appellate court concluded that Padley failed to demonstrate that Wis. Stat. section 343.305(3)(ar)2. is facially unconstitutional. It rejected her argument that the statute authorizes an unreasonable search in violation of the Fourth Amendment. Said the court, the statute “does not authorize searches, instead it authorizes police to require drivers to choose between giving actual consent to a blood draw, or withdrawing ‘implied consent’ and suffering implied-consent-law sanctions” (¶ 40). Nor does the statute deny certain drivers the equal protection of the law (see ¶¶ 49-54). Lastly, the statute does not fail for being impermissibly vague
    (see ¶¶ 55-60).

    The court also rejected Padley’s claim that the consent she gave to the search was involuntary. Among other things, Wisconsin case law establishes that voluntary consent to a blood draw is not negated by the fact that consent was procured by informing a suspect that the alternative is a penalty for refusing to comply with the implied-consent law (see ¶ 72).

    Lastly, the appellate court concluded that under the facts of this case the circuit judge did not err in concluding that the investigating deputy had “reason to believe” that the defendant had committed a traffic law violation (an illegal U-turn) as is required for the invocation of Wis. Stat. section 343.305(3)(ar)2. The statute does not define “reason to believe.” However, drawing on the meaning of the same phrase as it is used in the statute authorizing a preliminary breath test from a commercial driver (Wis. Stat. § 343.303), the court concluded that, in the context of section 343.305(3)(ar)2, the phrase means “minimal suspicion” (see ¶ 77).

    OWI – Driving with a Detectable Amount of a Controlled Substance in the Blood – Strict-Liability Offense

    State v. Luedtke, 2014 WI App 79 (filed 11 June 2014) (ordered published 30 July 2014)

    HOLDING: The strict-liability nature of the drugged-driving offense does not violate substantive due process.

    SUMMARY: The defendant was convicted of operating a motor vehicle with a detectable amount of a controlled substance in his blood, contrary to Wis. Stat. section 346.63(1)(am). Among other things, he argued that this statute violates due process and is thus unconstitutional because, as a strict-liability offense, it does not require knowledge of the wrong committed. In a decision authored by Judge Neubauer, the court of appeals affirmed.

    After considering the language of the statute, its legislative history, related statutes, the practical needs of law enforcement, protection of the public from harm, and severity of the punishment, the appellate court concluded that “[t]hese factors demonstrate that the legislature intended to allow the State to convict people of operating a motor vehicle with a restricted controlled substance in the blood without having to prove that the person knowingly ingested the substance. There is no ambiguity in Wis. Stat. § 346.63(1)(am): it is a strict liability statute” (¶ 15).

    Moreover, the defendant failed to meet his burden of showing that his substantive due process rights were violated. In response to a substantive due process challenge, courts examine whether the statute is a reasonable and rational means to the legislative end (see ¶ 16). “Section 346.63(1)(am) is a reasonable and rational means for the legislature to address a serious societal harm. The legislature could rationally conclude that a strict liability, zero-tolerance approach is the best way to attack the problem of drugged driving” (¶ 17).

    Open Records Law

    Public Policy – Employee Safety

    State v. Milwaukee Bd. of Sch. Directors, 2014 WI App 66 (filed 6 May 2014) (ordered published 25 June 2014)

    HOLDING: A school board properly denied an open records request based on concerns about an employee’s safety and personal welfare.

    SUMMARY: In 2012, Ardell requested public records of a school district employee relating to sick days, disciplinary actions, and any investigations. The school board denied the request because Ardell had been convicted of several counts of violating a domestic abuse injunction involving the same employee. Ardell filed a petition for a writ of mandamus, which the circuit court denied.

    The court of appeals affirmed in an opinion authored by Judge Brennan. The employee’s safety and welfare outweighed the presumption of disclosure: “the facts in this case demonstrate that Ardell has physically harmed the MBSD employee in the past and that his purpose in requesting the documents was inconsistent with the open records law’s interest in government transparency” (¶ 5).           The presumption favoring disclosure, “while strong, is not absolute” (¶ 9). Here the school board had “documented and well-founded safety concerns for its employee” (¶ 10).

    The court stressed, however, that the facts here are “exceptional” (¶ 14). Moreover, in denying the mandamus, the circuit court properly considered Ardell’s “identity” (¶ 16), because it “would be contrary to common sense and public policy to permit him to use the open records law to continue his course of intimidation and harassment” (¶ 17). Although the school board had initially decided to release the records, it was entitled to change its mind after hearing from the employee (see ¶ 20).

    Records – Attorney Fees

    Journal Times v. City of Racine Bd. of Police & Fire Commissioners, 2014 WI App 67 (filed 28 May 2014) (ordered published 25 June 2014)

    HOLDING: A newspaper was entitled to pursue attorney fees and costs when the police and fire commission impermissibly denied its request for public records.

    SUMMARY: The Racine fire and police commission conducted closed meetings to select candidates for the vacant chief-of-police position. A newspaper sought records relating to motions and roll call votes cast at one meeting when questions arose about the role of race in the process. The commission denied the request, first contending that it did not have to release information regarding a closed meeting and later citing commissioners’ safety concerns. The newspaper sued and still later the commission asserted that there was no “record” responsive to the request. The circuit court dismissed the mandamus action based on the lack of any record.

    The court of appeals reversed in an opinion authored by Judge Reilly, remanding the case solely to determine whether the newspaper is entitled to attorney fees and costs. It held that the commission was estopped from raising the “no record” ground as a defense against attorney fees and costs. The newspaper reasonably relied on the statutory requirement that the commission create, maintain, and release records of motions and votes at such meetings. That the commission later provided the information did not vitiate the writ of mandamus (see ¶ 11). Equitable estoppel was appropriate because the commission had “induced” the newspaper to believe that such records were extant and that it was denying the request for impermissible reasons (see ¶ 12).

    Real Property

    Inverse Condemnation – “Takings” Claim

    Fromm v. Village of Lake Delton, 2014 WI App 47 (filed 3 April 2014) (ordered published 28 May 2014)

    HOLDING: The government did not engage in any action that resulted in the destruction of the plaintiffs’ property and thus did not “take” their property without just compensation.

    SUMMARY: The plaintiffs suffered devastating property loss during a 2008 severe flooding event in the Lake Delton area. Lake Delton was created in 1927 as a result of the construction of a dam on Dell Creek near its confluence with the Wisconsin River. The village of Lake Delton took over ownership of the dam in 1994 and, from that time forward until the 2008 flooding event, made no changes to the structural design of the dam. The plaintiffs brought a takings claim under the inverse condemnation statute (Wis. Stat. § 32.10) and the takings clause of the Wisconsin Constitution, alleging that the village took their property without just compensation as a result of the flooding event. In short they claimed that the village had information available to it before 2008 showing the relative elevations of the dam and their properties and that the village failed to take steps to prevent the flooding event based on its knowledge of this difference in elevation.

    The circuit court granted the village’s motion for summary judgment and dismissed the plaintiffs’ complaint, concluding that there were no genuine issues of material fact and that the village was entitled to judgment as a matter of law on the grounds that the village took no affirmative action that resulted in the plaintiffs’ losses.

    In a decision authored by Judge Blanchard, the court of appeals affirmed. Wisconsin precedent and federal authorities as well require a valid takings claim to include allegations of affirmative government action (see ¶ 23). Government action of some sort is a prerequisite for a taking under the constitution (see ¶ 32). In this case, the plaintiff failed to present any legal authority to persuade the appellate court that the type of failure to act alleged here, namely, the village’s failure to act on knowledge about the relative elevations of the plaintiffs’ properties and the dam, constituted an action that could support their takings claim (see ¶ 33).

    The plaintiffs urged the court to apply the following as a per se rule: “any time a governmental unit controls a dam and there is a loss of private property due to flooding associated with the dam’s operation, the governmental unit is liable for a taking” (¶ 13). However, they failed to cite to any authority to support the proposition that, by operating a dam designed and created by others, a governmental unit becomes strictly liable in the takings context for all flooding associated with the dam (see ¶ 35). Moreover, the plaintiffs “fail[ed] to provide a convincing rationale to support the creation or application of a per se rule when it comes to dams and flooding, which would appear on its face to contravene the general requirement … that there can be no taking without a causal government action”
    (¶ 36).

    Enforcement of Express Easements – Statute of Limitation

    TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81 (filed 18 June 2014) (ordered published 30 July 2014)

    HOLDING: Actions to enforce easements set forth in a recorded instrument are barred unless the underlying instrument was recorded within the applicable statute-of-limitation period; there is no exception to the limitation period for enforcement of the easement against a purchaser who had actual notice of the easement.

    SUMMARY: This case concerns the enforceability of an express easement, created in 1928 and last recorded in the Kenosha County Register of Deeds in 1945, that allows the owners of one property, and their customers, to cross the west 10 feet of an adjacent property to access a parking area. Under Wisconsin law, “[a]ctions to enforce easements … set forth in any recorded instrument” are barred unless the underlying instrument was recorded within the applicable statute-of-limitation period. See Wis. Stat. § 893.33(6). For the easement in question, that limitation period was 60 years (although the limitation period is 40 years for easements recorded on or after July 1, 1980).

    In a decision authored by Chief Judge Brown, the court of appeals concluded that as of 2005, when that 60-year period from the last recording of the easement in this case expired, the easement became unenforceable under Wisconsin law against any subsequent purchaser
    (see ¶ 1). And this is true regardless of whether the purchaser had actual notice of the easement. Wisconsin Statutes section 893.33 “provides no exception to the limitations period for enforcement against a purchaser who had actual notice of the easement” (¶ 12).

    The court “surmise[d] that many Wisconsin easement holders may be unaware of this requirement that the recording of their easements must be renewed periodically and that a[n unrecorded] survey map will not suffice. Easement holders would be wise to re-record their easements or record filed surveys before problems arise” (¶ 23).


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