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    Court of Appeals Digest

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

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    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.

    Criminal Law

    Theft – Aggregation of Charges – Duplicity – Multiplicity

    State v. Jacobsen, 2014 WI App 13 (filed 10 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: The aggregation of theft charges against the defendant was neither duplicitous nor multiplicitous.

    SUMMARY: The defendant, Jacobsen, appealed a judgment convicting her on no-contest pleas to three counts of theft in a business setting. She also appealed an order denying her postconviction motion for plea withdrawal. Jacobsen was charged with eight offenses in connection with the theft of nearly $500,000 from her employer. The charges were based on 289 individual thefts that took place over approximately six years.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The prosecutor structured the theft prosecutions according to years. For example, Count 1 charged thefts that occurred between January 2009 and December 2009 as one count of theft of an amount greater than $10,000 (a Class G felony), Count 2 charged thefts that occurred throughout 2010 as one count of theft of an amount greater than $10,000, and so on.

    Jacobsen moved for postconviction relief, arguing, among other things, that she was entitled to withdraw her pleas because her trial attorney was ineffective by failing to consult with her regarding multiplicity and duplicity challenges to the charges and by failing to move the court to dismiss the criminal complaint based on grounds of multiplicity, duplicity, vagueness, or indefiniteness. The circuit court denied the motion. In a decision authored by Judge Stark, the court of appeals affirmed.

    Jacobsen contended her trial attorney was ineffective by failing to challenge the charges against her as duplicitous. A complaint is duplicitous when it joins two or more separate offenses in a single count. A duplicitous charge is defective because the jury may find the defendant guilty without the state proving each element of the offense beyond a reasonable doubt.

    “However, when an offense is composed of continuous acts, it may be charged as a single count without rendering the charge duplicitous. In other words, the State has discretion to charge a defendant with one continuing offense based on multiple criminal acts when the separately chargeable offenses are committed by the same person at substantially the same time and relating to one continued transaction” (¶ 18) (citations and internal quotations omitted).

    In this case, each charge was based on multiple acts committed by Jacobsen at substantially the same time, relating to a single, continuing scheme. Moreover, the legislature has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime if “[t]he property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme[.]” See Wis. Stat. § 971.36(3)(a). Finally, the court found that the dangers associated with duplicitous charges were not implicated in this case (see ¶ 22).

    Jacobsen also argued that her attorney was ineffective by failing to challenge the charges against her as multiplicitous. Multiplicity arises in situations in which the defendant is charged in more than one count for a single offense.

    The court of appeals also rejected this contention. Applying the well-established structure for analyzing multiplicity claims, the court first concluded that the theft charges, although identical in law, were different in fact because each involved different amounts of money taken on different dates provable by different paperwork and accounting records; accordingly the charges did not violate the defendant’s right to be free from double jeopardy (see ¶ 31). As for the second component of the multiplicity analysis, the court concluded that the defendant failed to meet her burden of establishing that the legislature intended to preclude cumulative punishments for the crimes with which she was charged (see ¶ 32).

    Lastly, the court held that “the State properly exercised its prosecutorial discretion by charging Jacobsen with one count of theft for each calendar year in which she stole money from [her employer]. We reject Jacobsen’s argument that the State was required to charge her with either a single count in connection with her entire course of conduct or with separate counts for each of the 289 individual thefts. A prosecutor must have discretion at the charging stage to issue charges which coincide with the evidence available and the gravity of the particular course of conduct involved. That is precisely what the State did in Jacobsen’s case” (¶ 48) (internal quotations and citations omitted).

    Accordingly, the court of appeals concluded that Jacobsen’s attorney did not render ineffective assistance of counsel by failing to inform her that the charges could be challenged as duplicitous or multiplicitous or by failing to seek dismissal of the complaint on those grounds (see ¶ 49).

    Criminal Procedure

    Sentence Adjustment – Consecutive Sentences

    State v. Polar, 2014 WI App 15 (filed 10 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: A defendant serving consecutive sentences must file separate petitions for each sentence he or she seeks to have adjusted under Wis. Stat. section 973.195, and each sentence is to be considered separately for adjustment purposes.

    SUMMARY: The defendant, Polar, was sentenced to seven years’ initial confinement and five years’ extended supervision for an armed-robbery conviction, and three years’ initial confinement and five years’ extended supervision for an attempted armed-robbery conviction. The sentences were to be served consecutively. After Polar had served eight and one-half years in confinement, he moved to adjust his sentences under Wis. Stat. section 973.195. This statute authorizes such a motion after a defendant has served 85 percent of the term-of-confinement portion of his or her sentence. (A lesser percentage is applied to less serious felonies.)

    The circuit court denied Polar’s motion, concluding that Polar filed his motion with respect to the seven-year sentence too late, and too early with respect to his three-year sentence. On appeal, Polar argued that the circuit court erred because his sentences should be construed as one, not as separate sentences, and therefore his motion was brought at the appropriate time.

    In a majority decision authored by Judge Curley, the court of appeals affirmed. It concluded that the plain language of the statute supports the circuit court’s decision. Section 973.195(1r) of the Wisconsin Statutes explicitly provides that “[i]f an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.” Thus, “a defendant serving multiple sentences seeking a sentencing adjustment must file a separate petition for each individual sentence he or she wishes to adjust” (¶ 15).

    As applied to this case, the defendant’s petition was too late with respect to his armed robbery sentence because he had already completed the seven-year prison term. His petition was premature with respect to the attempted-armed-robbery sentence because he had not yet served 85 percent of the confinement portion of that sentence.

    Judge Kessler filed a concurring opinion.

    Employment Law

    Act 10 – Local Governments – Grievance Procedures for Employee Terminations

    Dodge Cnty. Prof’l Employees Local 1323-A v. Dodge Cnty., 2014 WI App 8 (filed 5 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: A county employee was entitled under Wis. Stat. section 66.0509(1)(m) to submit a grievance concerning her termination from employment even though the county’s policies and procedures did not classify her dismissal as a “termination.”

    SUMMARY: Burden was employed by Dodge County in a position that required that the employee “meet requirements of [the] Dodge County Driver Qualification [Criteria].” Pursuant to the criteria, “[u]nless there are extenuating circumstances,” an employee is “disapprov[ed]” as not meeting the program requirements if he or she has been convicted of operating while intoxicated (OWI) within the past 12 months. Burden was convicted of OWI and the county ended her employment three days later because, as a result of the conviction, she was no longer qualified for her position.

    Burden sought to have the dismissal considered under Dodge County’s grievance procedure. The county advised her that her dismissal was not subject to the county’s procedure, which specifically excluded “[t]ermination of employment due to ... lack of qualification” from the list of employee terminations that may be grieved.

    Burden then filed a declaratory judgment action, contending that Dodge County’s grievance procedures violate Wis. Stat. section 66.0509(1)(m). This statute, enacted as part of 2011 Wisconsin Act 10, requires local governments to create “[a] grievance procedure that addresses employee terminations.” The circuit court granted summary judgment to the county.

    In a decision authored by Judge Kloppenburg, the court of appeals reversed. It concluded that “the application of the County’s grievance procedure so as to exclude Burden’s dismissal from being grieved, violates § 66.0509(1m)’s mandate that the grievance procedure address terminations” (¶ 10). Although the statute does not define “termination,” the court held that “the action taken against Burden was a termination within the plain meaning of the statute. It follows that the County impermissibly denied Burden the opportunity to grieve her termination” (¶ 15).


    Experts – New Rules

    State v. Knipfer (In re Commitment of Knipfer), 2014 WI App 9 (filed 27 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: The new reliability rules governing expert evidence do not apply to Wis. Stat. chapter 980 discharge petitions for actions commenced before the rule’s 2011 effective date.

    SUMMARY: Knipfer was committed under the sexually violent persons law (Wis. Stat. chapter 980) in 2003. In 2012, he filed a petition for discharge. The circuit court rejected his contention that expert opinion testimony should be assessed under the new reliability rules, based on Federal Rule of Evidence 702 (“Daubert”), rather than the relevancy standard that preceded the new rule.

    The court of appeals affirmed the circuit court in an opinion authored by Judge Lundsten. In State v. Alger, 2013 WI App 148, the court of appeals held in a similar case that the old rule controlled cases like this one. The legislature provided that the new rule applies only to actions and special proceedings commenced on or after Feb. 1, 2011. The Alger court held that a petition for discharge did not commence an action but related back to the original chapter 980 commitment (see ¶ 5). In this appeal, Knipfer unsuccessfully raised several constitutional arguments that were not addressed in Alger, including the applicability of strict scrutiny to an equal-protection claim and an inchoate due-process argument.

    Forfeiture Actions

    Wis. Stat. Chapter 778 Forfeiture Actions – Pretrial Discovery

    State v. Bausch, 2014 WI App 12 (filed 19 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: Pretrial discovery is available in a forfeiture action that is commenced by a citation under Wis. Stat. section 778.25.

    SUMMARY: The Wisconsin Capitol Police cited Bausch for violating a state regulation that imposes a maximum penalty of a $500 forfeiture. The regulation prohibits, under specified circumstances, a picket, rally, parade, or demonstration, without approval of the Wisconsin Department of Administration, in buildings and facilities managed or leased by the department. Bausch entered a not-guilty plea, demanded a jury trial, and sought pretrial discovery.

    The state asserted that civil discovery procedures are unavailable to the parties in this type of forfeiture proceeding. The circuit court agreed with the state and prohibited discovery. The court of appeals granted Bausch’s petition to appeal this nonfinal order.

    In a decision authored by Judge Lundsten, the court of appeals reversed. The sole issue before the court was whether Wis. Stat. chapter 804 civil discovery procedures apply in an action to recover a forfeiture that is commenced by a citation under Wis. Stat. section 778.25. The appellate court concluded that “the test used to decide this particular statutory interpretation question compels the conclusion that the civil discovery procedures are available to Bausch because the legislature has not prescribed a ‘different procedure’ for such forfeitures” (¶ 1).


    Exclusion – Intentional Acts

    Fetherston v. Parks, 2014 WI App 2 (filed 12 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: An insurance policy’s exclusion for intentional injuries did not bar coverage for injuries caused by reckless driving.

    SUMMARY: Police officers began pursuing Parks, who was driving 60 miles per hour in a 25-miles-per-hour zone. Still driving at a high speed, Parks weaved in and out of traffic, losing control when he passed a truck on a gravel shoulder. Parks’ vehicle struck the plaintiffs’ vehicle as they approached in the opposite lane. Parks’ insurer, American Family, pressed its intentional-acts exclusion but a judge denied the insurer’s motion for summary judgment. At a bench trial, a different judge found that the intentional-acts exclusion precluded coverage, and the judge dismissed the insurer from the case.

    The court of appeals reversed in an opinion written by Judge Kloppenburg. The court said that the exclusion “bars coverage only where both a person intentionally causes harm, and the person’s conduct is substantially certain to result in harm. The former has been characterized in case law as subjective intent, and the latter as objective intent” (¶ 8). The parties conceded that Parks lacked subjective intent, which the policy’s plain language required for the exclusion to apply (see ¶ 10). Although the insurer pointed to statutory language in Wis. Stat. section 632.32(6), its own policy language controlled (see ¶ 13).

    Cow Manure – Not a Pollutant – “Liquid Gold”

    Wilson Mut. Ins. Co. v. Falk, 2014 WI App 10 (filed 11 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: Cow manure was not a “pollutant” within the meaning of a farmowners insurance policy, and thus a pollution exclusion did not preclude coverage.

    SUMMARY: The Falks operated a dairy farm that had more than 600 cows and covered 1,600 acres. They used cow manure to fertilize their fields. In 2011, the Department of Natural Resources (DNR) notified the Falks that their manure had polluted a local aquifer and contaminated their neighbors’ wells. The Falks notified Wilson Mutual, which had issued them a farmowners policy. The insurer commenced this declaratory action, which alleged that the policy’s pollution exclusion applied to manure and precluded coverage. The trial judge found that the insurer had no duty to defend or to indemnify.

    The court of appeals reversed in an opinion authored by Judge Reilly. “The question presented is straightforward: does cow manure fall within the definition of a ‘pollutant’ under Wilson Mutual’s farmowners policy?” (¶ 9). The court observed that case law on this issue had been somewhat “inconsistent.”

    It concluded that “the pollution exclusion in Wilson Mutual’s farmowners policy does not apply to manure used as fertilizer on a farm. A reasonable farmer would not consider manure to be a ‘pollutant,’ an ‘irritant,’ a ‘contaminant,’ or ‘waste.’ Manure is an everyday, expected substance on a farm that is not rendered a pollutant under the policy merely because it may become harmful in abnormally high concentrations or under unusual circumstances” (¶ 14) (citations omitted).

    “Manure is a matter of perspective; while an average person may consider cow manure to be ‘waste,’ a farmer sees manure as liquid gold. Manure in normal, customary use by a farmer is not an irritant or a contaminant, it is a nutrient that feeds the farmer’s fields that in turn feeds the cows so as to produce quality grade milk. Manure in the hands of a dairy farmer is not a ‘waste’ product; it is a natural fertilizer.… Manure, by act of nature, has always been universally present on dairy farms and, if utilized in normal farming operations, is not dangerous” (¶ 15).

    Intra-insured Exclusion – Derivative Claim

    Barrows v. American Family Ins. Co., 2014 WI App 11 (filed 10 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: The intra-insured exclusion precluded coverage under a homeowner’s policy after a boy killed himself with an unlocked handgun found in a home.

    SUMMARY: An 11-year-old boy, A.B., killed himself with an unlocked handgun that he found in a nightstand at his mother’s house. The boy’s father sued the mother, the gun’s owner, and their homeowner’s insurer, American Family. The circuit court ruled that there was no coverage because of the policy’s intra-insured and intentional-injury exclusions. In an opinion authored by Judge Stark, the court of appeals affirmed.

    “Whether an intra-insured exclusion like the one in American Family’s policy bars a non-insured’s wrongful death claim arising from the death of an insured appears to be an issue of first impression in Wisconsin” (¶ 13). The court surveyed case law from other jurisdictions, opting to follow the majority rule rather than the minority approach (see ¶ 26).

    “A claim for loss of services will always be a derivative claim – in other words, it will always be brought by someone other than the injured person.… Accordingly, by excluding coverage for bodily injury to an insured, and by stating that bodily injury includes resulting loss of services, American Family’s policy clearly contemplates exclusion of claims derived from the insured’s bodily injury. We therefore agree with [a Missouri case] that, logically, ‘[b]ecause the policy exclude[s] coverage for bodily harm, sickness or disease to any insured, it follows that damages derived from the insured[’s] harm, whether or not they are considered separate injuries, are also excluded.’ Barrows concedes his wrongful death claim is a claim for loss of services resulting from A.B.’s death. Any injury he sustained arose solely from bodily injury to A.B. Under the plain language of the policy, Barrows’ claim is therefore excluded from coverage” (¶ 28) (citations omitted).

    Financial Responsibility Law – Certified Policies

    Hechimovich v. Acuity, 2014 WI App 14 (filed 27 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: An injured party could collect on the only certified policy issued pursuant to the financial responsibility law even though another policy provided greater coverage.

    SUMMARY: Hechimovich was badly injured while riding on the back of a motorcycle driven by Westra. She collected approximately $400,000 on various policies, but her damages exceeded $700,000. Westra was also insured under a liability policy, issued by Acuity, for $50,000 pursuant to Wisconsin’s financial responsibility law. See Wis. Stat. §§ 344.31, 344.33.

    “Upon issuing the policy to Westra, Acuity completed a Financial Responsibility Certificate and filed the Certificate with the Wisconsin Department of Transportation, which allowed Westra to remain or become a licensed driver” (¶ 4). The circuit court granted summary judgment in favor of Acuity on grounds that Westra had $100,000 in coverage through State Farm, an amount that exceeded the $50,000 required by the financial responsibility law.

    The court of appeals reversed in an opinion authored by Judge Kloppenburg. Acuity’s position was premised on an “incorrect interpretation of the financial responsibility law that governs its policy, specifically, Wis. Stat. § 344.33(9)” (¶ 15). Only a certified policy fulfills the law. “[U]nder Wis. Stat. § 344.33(9), the financial responsibility law’s minimum coverage requirements are satisfied only by the Acuity policy. In other words, no other certified policy exists to which the Acuity policy may be ‘excess’ as one of multiple policies under § 344.33(9)” (¶ 20).

    Moreover, as the only certified policy, the Acuity policy must fulfill the financial responsibility law’s requirements. This requirement means that Acuity’s exclusion for injury or damages “resulting from the ... use of a motorized vehicle with less than four wheels” cannot apply (¶ 21). On grounds of ripeness, the court declined to rule on whether Acuity could seek reimbursement from Westra under Wis. Stat. section 344.33(7) (“the insured shall reimburse the insurer for any payment the insurer would not have been obligated to make under the terms of the policy except for the provisions of this section”) (¶ 22). 

    Marital Property

    Intestate Succession – Survivorship Marital Property

    Droukas v. Estate of Felhofer, 2014 WI App 6 (filed 3 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: Property owned by the decedent was survivorship marital property.

    SUMMARY: In 1999, Mary Lynch and Gregory Felhofer were dating and owned separate homes. When they purchased a vacant lot, the warranty deed named them as “single persons.” Later in 1999, they closed on a construction loan, started home construction, and got married (at which time Lynch changed her last name to Felhofer). In early 2000, Mary (hereinafter Felhofer) and Gregory (the decedent) received a certificate of occupancy. The decedent died intestate in 2011. During probate proceedings, two of the decedent’s children argued that the house was subject to probate administration, on grounds that Felhofer and the decedent held the property as tenants in common. The circuit court ruled that the home was, instead, survivorship marital property under Wis. Stat. section 766.605.

    The court of appeals affirmed in an opinion authored by Judge Brennan. The parties agreed that Felhofer retains her one-half interest in the property under marital property law. They also agreed that the decedent’s one-half interest passes to his children unless it is survivorship marital property (see ¶ 12).

    The court held that all three elements of survivorship marital property were present. First, the couple acquired property as a homestead after the determination date. The warranty deed for the vacant land did not control; the property became a homestead “when there was a dwelling on it” and the parties occupied it, which was after the determination date (¶ 23). Second, when acquired it was held exclusively by the parties, who received their occupancy permit only after they were married. Their status as single persons when they received the warranty deed was irrelevant (see ¶ 26). Third, their warranty deed did not express a contrary intent (and there was no marital property agreement) (see ¶¶ 27, 32).


    Willful Failure to Pay, Account For, or Collect Sales Taxes – Wis. Stat. Section 77.60(9) – No Statute of Limitation

    Rashaed v. Wisconsin Dep’t of Revenue, 2014 WI App 7 (filed 27 Dec. 2013) (ordered published 29 Jan. 2014)

    HOLDING: The absence of a statute of limitation for actions concerning willful failure to pay sales taxes did not deny a taxpayer the equal protection of the law.

    SUMMARY: The Tax Appeals Commission upheld the Department of Revenue’s determination that Rashaed is personally liable for 1998-2000 sales taxes owed by one or more businesses that Rashaed operated. The parties agreed that there is generally a four-year statute of limitation for imposing liability for a sales-tax deficiency. See Wis. Stat. § 77.59(3). However, under Wis. Stat. section 77.60(9), the provision at issue in this case, there is no limitation period when the department seeks to impose personal liability on persons who willfully fail to pay, account for, or collect a tax they were required to pay, account for, or collect.

    Rashaed challenged Wis. Stat. section 77.60(9) on equal protection grounds, arguing that the absence of a limitation period, when compared with the general four-year limitation period applicable to liability under Wis. Stat. section 77.59(3), lacks a rational basis. The circuit court rejected Rashaed’s challenge and upheld the decision of the Tax Appeals Commission.

    In a decision authored by Judge Lundsten, the court of appeals affirmed. Treating Rashaed’s challenge as a “facial” challenge to the statute (as opposed to an “as applied” challenge), the appellate court began its analysis by observing that “[t]he most important distinction between the two categories is willfulness in non-payment of taxes” (¶ 9).

    “Rashaed never comes to grips with the proposition that different treatment may be rationally based on a difference in culpability. Persons who merely fail to pay taxes are not as culpable as persons who willfully fail to pay. Rashaed does not demonstrate that this justification for the difference in treatment is irrational” (¶ 10).

    “As the circuit court reasoned, the legislature could have rationally concluded that it may take longer to identify, locate, and collect against natural persons who willfully fail to meet their obligations as specified in Wis. Stat. § 77.60(9). Indeed, the commission’s decision contains detailed factual findings supporting a conclusion that Rashaed evaded payment of business tax liabilities for several years by, among other things, repeatedly changing his name. While we need not rely on the commission’s findings to conclude that the classification has a rational basis, those findings illustrate the type of situation that the legislature could have contemplated” (¶ 11).

    The appellate court also rejected Rashaed’s argument that the lack of a limitation period for willful failures to pay sales taxes is inherently irrational (see ¶ 12).


    Safe Place – Asbestos

    Viola v. Wisconsin Elec. Power Co., 2014 WI App 5 (filed 27 Dec. 2014) (ordered published 29 Jan. 2014)

    HOLDING: Asbestos on the defendant’s premises was an “unsafe condition” for purposes of the safe-place statute.

    SUMMARY: For several decades, Viola worked as a pipe coverer at Wisconsin Electric, where he was exposed to asbestos dust. He died of malignant mesothelioma, and his estate and other plaintiffs brought this action under Wisconsin’s safe-place statute, Wis. Stat. section 101.11. The circuit court dismissed the claim on grounds that asbestos in the air was a negligent “act of operation,” not an “unsafe condition.”

    The court of appeals reversed in an opinion written by Judge Curley. Several cases presented “strikingly similar circumstances” to those here (¶ 21). The court rejected Wisconsin Electric’s contention that “because Viola performed some of the work releasing the asbestos dust into the air he cannot recover for the damage it caused” (¶ 22).

    The complaint properly alleged an unsafe condition: “Viola worked in premises where pipes were covered with asbestos-containing insulations. The regular maintenance and/or repair of the premises required that the asbestos be disturbed. The asbestos was disturbed – in some instances by the decedent while performing work in the usual way as required by the decedent’s employer and/or Wisconsin Electric. There is no evidence that Viola performed any of this necessary maintenance or repair work negligently. Furthermore, Wisconsin Electric knew about the asbestos and its health hazards, but failed to protect Viola from these hazards. Finally, Viola died from mesothelioma caused by his asbestos exposure” (¶ 25). The evidence, then, created a material issue of fact for trial.