Criminal Procedure

Guilty Pleas – Factual Basis – Possession of Narcotics

State v. Chentis, 2022 WI App 4 (filed 1 Dec. 2021) (ordered published 27 Jan. 2022)

HOLDING: The defendant’s guilty plea to possession of a narcotic had a sufficient factual basis.

SUMMARY: Police officers discovered items they suspected were narcotics and paraphernalia following a traffic stop of the defendant’s car; he was charged with one count of possession of a narcotic and one count of possession of drug paraphernalia. Later lab testing failed to show the presence of the oxycodone the police had suspected, but trace quantities of heroin and cocaine were found in a “tin cooker.”

The defendant later pleaded guilty to possession of a narcotic (the traces of heroin), and the state dismissed the paraphernalia count. The parties stipulated to the criminal complaint for the factual basis for the guilty plea, defense counsel clarifying that the defendant’s plea was based on the traces of heroin. After sentencing, the defendant moved to withdraw his guilty plea on the ground that the factual basis did not demonstrate that he knowingly possessed the heroin. The circuit court denied the motion.

The court of appeals affirmed in an opinion authored by Judge Gundrum. The standard for withdrawing a guilty plea after sentencing requires a defendant to show by clear and convincing evidence that the withdrawal is necessary to correct a manifest injustice (see ¶ 8). In this case, the defendant fell short. Although the quantity of heroin was immeasurably small, “strong circumstantial evidence” showed that the defendant knew of its presence: it was found in his car, which contained drug paraphernalia “indicative of heroin use” (¶ 13). Nor was there evidence showing that he had “cleaned the tin cooker or would have had any other reason to believe drug residue would have been eradicated from it” (id.).

Employment Law

Pensions – City of Milwaukee Police Officers

Miller v. City of Milwaukee, 2022 WI App 3 (filed 28 Dec. 2021) (ordered published 27 Jan. 2022)

HOLDING: The plaintiffs (two former Milwaukee police officers) are not entitled to begin collecting retirement benefits at age 57 (the age applicable to police officers) because both left the police force before age 57 and took positions as “general city employees” in other city departments in which the retirement age is 60.

SUMMARY: The plaintiffs were employed as police officers for the city of Milwaukee and became members of the Milwaukee Employees’ Retirement System (MERS) as a result of their employment. Both left their employment with the Milwaukee Police Department before reaching the “minimum service requirement age” of 57 years. They elected the deferred retirement option: leaving their accumulated contributions in the retirement fund until they reached the minimum service requirement age. After leaving their employment as police officers but before their 57th birthdays, both took positions in other city departments. Both later left those positions in the other city departments, again before reaching age 57.

The MERS thereafter notified the plaintiffs that they would be receiving their retirement benefits at age 60. The MERS took the position that under the controlling provisions of the Milwaukee City Charter, both plaintiffs became “general city employees” when they began employment with the other city departments and were thus subject to the minimum service requirement age (60 years) applicable to general city employees before they are eligible to collect their pensions.

The plaintiffs filed a declaratory-judgment action contending that they had a vested right to begin receiving their retirement benefits at age 57. The circuit court agreed. In a decision authored by Judge Dugan, the court of appeals reversed.

The court of appeals characterized the dispute in this case as focusing solely on when the plaintiffs can begin collecting their retirement benefits and said that it has nothing to do with the amount to which they will eventually be entitled (see ¶ 23). It concluded that under the controlling provisions of the Milwaukee City Charter, they are not entitled to receive retirement benefits until age 60 because of their decision to return to employment with the city as general city employees after leaving the police force. The court of appeals also concluded that the plaintiffs did not have a vested right in the minimum service retirement age applicable to police officers (see ¶ 2).

Environmental Law

Permit to Fill Wetlands – Statutory Requirements

Meteor Timber LLC v. Wisconsin Div. of Hearings & Appeals, 2022 WI App 5 (filed 16 Dec. 2021) (ordered published 27 Jan. 2022)

HOLDINGS: 1) A determination by an administrative law judge (ALJ) that the Department of Natural Resources (the department) did not comply with statutory requirements for wetland-fill permits was based on findings of fact that were supported by the record and on a correct reading of the applicable statutes. 2) The circuit court properly exercised its discretion in denying the petitioner’s motion to present additional evidence.

SUMMARY: The department issued a permit and later an amended permit allowing Meteor Timber LLC to fill wetlands for purposes of constructing a facility for drying and storing industrial sand and an associated facility for loading the sand onto rail cars and shipping the sand by rail. After a contested-case hearing, an ALJ issued a decision and order reversing the decisions to issue the permit and amended permit based on his conclusions that the permit and amended-permit decisions did not comply with the statutes governing wetland-fill permits. The department adopted the ALJ’s decision without change as its own final decision.

On judicial review, the circuit court affirmed. In an opinion authored by Judge Kloppenburg, the court of appeals also affirmed.

The ALJ concluded that the department improperly issued the permit because “(1) the Department lacked sufficient information to determine the net positive or negative environmental impact as required under Wis. Stat. § 281.36(3n)(b)5.; (2) the Department issued a permit for a proposed project that, based on the information provided, will result in significant adverse impacts to wetlands contrary to § 281.36(3n)(c)3.; and (3) the Department issued a permit for an inadequate mitigation plan contrary to § 281.36(3n)(d). The ALJ also concluded that the Department lacked statutory authority to issue the amended permit” (¶ 14).

The court of appeals concluded that the ALJ’s determination that the department did not comply with statutory requirements for wetland-fill permits was based on findings of fact that were supported by the record and on a correct reading of the applicable statutes (see ¶ 2). Accordingly, the department’s decision to issue the permit was properly reversed (see ¶ 7). The court of appeals also concluded that because Meteor failed to identify any law that authorizes the department to issue an amended permit absent a valid initial permit, the ALJ properly reversed the department’s decision to issue the amended permit (id.).

Lastly, on the facts of this case, the appellate court concluded that the circuit court properly exercised its discretion in denying Meteor Timber’s motion to present additional evidence relating to a different wetland restoration project (see ¶ 103).

Family Law

Divorce – Child Custody – Domestic Violence

Valadez v. Valadez, 2022 WI App 2 (filed 29 Dec. 2021) (ordered published 27 Jan. 2022)

HOLDING: A father failed to overcome the statutory presumption against child custody, in this case in light of his history of domestic violence, because he did not prove that he received treatment through a properly certified program.

SUMMARY: This divorce action arose after the defendant (the father) was prosecuted for domestic violence against the mother of their four children. The father received treatment from a licensed professional counselor, and the state later amended the criminal charge to disorderly conduct. At the divorce proceeding, the judge ruled that the father had rebutted the statutory presumption against granting him legal custody of the children because he had completed “domestic abuse treatment” (¶ 9).

The court of appeals reversed and remanded in an opinion authored by Judge Neubauer. Wisconsin Statutes section 767.41(2)(d) creates a rebuttable presumption that a parent who has committed domestic violence against the other parent is not entitled to joint or sole custody of their children (see ¶ 13). Although the statute does not define the terms “certified treatment program” or “certified treatment provider,” there must be some showing that the provider is “qualified and fit to treat batterers” (¶ 22).

Absent such a showing here, the circuit court erred in finding that the father had rebutted the statutory presumption against granting custody (see ¶ 23). Moreover, the circuit court erred in granting “equal shared placement” when it failed to consider the pattern of domestic abuse and its effect on the safety of the mother and the children (¶ 26). The court of appeals remanded the case to the circuit court for reconsideration.

Gambling

Video Gaming Machines – Gambling Machines

JD Prime Games Kiosk LLC v. Wisconsin Dep’t of Revenue, 2022 WI App 6 (filed 21 Dec. 2021) (ordered published 27 Jan. 2022)

HOLDING: The video gaming machines at issue in this case are illegal gambling machines.

SUMMARY: JD Prime sells, distributes, and services video gaming machines to convenience stores throughout Wisconsin. Players insert money into the machines and receive credits, which they then can use for game play. Players wager credits to play the games; if they win, those credits accumulate, and the players then can redeem them for cash. These machines also have a “preview feature” that allows patrons to determine in advance the outcome of any particular game; that is, the preview feature allows players to determine before each game whether they would be a winner. The preview feature is optional, and players need not use the preview feature to play the machines. The revenue made from these video gaming machines is split between JD Prime and the owners of the convenience stores.

The Wisconsin Department of Revenue issued removal orders to establishments where these machines were being operated, stating that they were gambling machines and thus “contraband” that is subject to seizure. JD Prime and the owners of several convenience stores where the machines were located sought a declaratory judgment that the machines are not gambling machines under the statutory definition. The circuit court concluded that the machines were not illegal gambling machines and granted summary judgment in favor of JD Prime. In an opinion authored by Chief Judge Brash, the court of appeals reversed.

The statutory definition of gambling machine is “a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine.” See Wis. Stat. § 945.01(3)(a). JD Prime asserted that because players have the option of using the preview feature, there is no element of chance to its machines, and therefore they do not meet the statutory definition of a gambling machine. However, JD Prime did not dispute that players need not use the preview feature to play the machines, and that when that feature is not used, the outcome of the game is determined by chance (see ¶ 13).

The court of appeals concluded that the JD Prime video gaming machines are gambling machines under the statute cited above (see ¶ 17). “The fact that players may use the preview feature does not negate the fact that when they do not use it, the results of that game are determined completely by chance. In fact, even when the preview feature is used, any award that might be paid out is still determined by ‘chance,’ in that it is randomly generated by the machines; utilizing the preview feature and then choosing not to play if it indicates an impending loss simply eliminates the risk of losing money, not the element of chance for winning. See Wis. Stat. § 945.01(3)(a). Thus, JD Prime’s argument that these are ‘no-chance’ games fails” (¶ 14).