Court of Appeals Digest

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

This column summarizes all decisions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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Criminal law

Controlled Substances - "Parks" Enhancer - Meaning and Constitutionality

State v. Lopez, No. 95-3250-CR (filed 11 Dec. 1996) (ordered published 28 Jan. 1997)

Section 161.49 of the Wisconsin Statutes (1993-94) enhances the penalty for possessing certain drugs "within 1,000 feet of a state, county, city, village or town park" with the intent to deliver them. In this case the defendant argued that this penalty enhancer is void for vagueness. In the alternative, he argued that the state violated his due process rights by seeking the enhancer when the park in question is a "passive" park, but is not a place where children congregate. In a decision authored by Judge Anderson, the court of appeals disagreed with both of the defendant's contentions.

Since "park" is not defined in the statute, the court looked to standard dictionary definitions for guidance. One of those sources defines a park as "a tract of land maintained by a city or town as a place of beauty or public recreation." The court concluded that the ordinary and accepted meaning of "park" encompasses a passive or undeveloped park such as the one at issue in this case. It further concluded that the proximity to a public park, including an undeveloped park, is rationally related to the protection of the public's health and safety from drug-trafficking activities. Because the defendant possessed more than 45 pounds of marijuana within 1,000 feet of a park, his right to due process was not violated by the state charging him with the penalty enhancer.

The court also concluded that section 161.49 provides fair warning that the term "park" as contemplated by the statute encompasses parks that may be designated by signs or contain park benches, as well as passive or undeveloped parks such as the one in this case. Accordingly, it rejected the defendant's argument that the statute is void for vagueness.

Criminal procedure

Sentence Credit - Time Spent in Intensive Sanctions Program

State v. Collett, No. 96-1952-CR (filed 3 Dec. 1996) (ordered published 28 Jan. 1997)

The defendant violated his probation and, as an alternative to revocation, he was offered placement in the Department of Intensive Sanctions (DIS) program, which he accepted. He participated in the DIS program for one year and was discharged. He again violated his probation, which this time was revoked, and three five-year concurrent sentences that previously had been imposed and stayed were implemented. The defendant moved for sentence modification arguing that he should have been credited for the year he spent in the DIS program. The motion was denied and this appeal followed.

The court of appeals, in a decision authored by Judge Myse, affirmed. Section 973.155(1)(a) of the Wisconsin Statutes authorizes sentence credit and reads: "A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with a course of conduct for which sentence was imposed." The defendant argued that the time he spent in the DIS program constituted "custody" within the meaning of this statute and therefore should be credited against his sentence.

The appellate court concluded that whether an individual is in "custody" in the DIS program, and therefore entitled to sentencing credit, depends upon an evaluation of the restrictions upon the defendant's freedom imposed by the DIS program. In an earlier decision the appellate court discussed the degree of control that must be exerted over an individual in order for him or her to be considered in custody. In State v. Cobb, 135 Wis. 2d 181, 400 N.W.2d 9 (Ct. App. 1986), the court found that a defendant who spent time in a drug treatment facility as a condition of probation was in custody only if he was "locked in at night." The DIS program, however, allows for a wider variety of restrictions on liberty than just nightly confinement. In fact, DIS has a broad range of sanctions available that restrict freedom to varying degrees. For example, assignments in the program could range from community service to confinement in a jail. Further, these restrictions can be used in conjunction with one another over the course of an individual's placement in DIS with some time spent in confinement and other times spent in one of the other programs.

Because of the variety of restrictions on liberty within the DIS program, the court of appeals concluded that a bright-line rule for determining whether a person in DIS is in custody for sentence credit purposes would be impractical. To earn sentence credit, the defendant must endure restrictions that are so substantial as to amount to being locked in at night or its equivalent. While each case must be individually determined, sentence credit is only given if the restriction on a participant's freedom is the functional equivalent of confinement. Custody exists only if the individual's DIS program sufficiently infringes upon his or her freedom to equate with being under the state's control for a substantial period of time.

In this case the record contained no evidence of the defendant's restrictions in the DIS program. Accordingly, the appellate court could not determine whether the defendant was in custody for purposes of sentence credit and the case was remanded so that the trial court could examine the extent to which the defendant's freedom was limited during his year in the DIS program.

Search and Seizure - Consent

State v. Gaulrapp, No. 96-1094-CR (filed 27 Dec. 1996)(ordered published 28 Jan. 1997)

The defendant appealed his conviction for possession of cocaine and marijuana, arguing that the police had illegally seized the controlled substances from his car. The defendant conceded that he was legally stopped by police for a traffic violation. He contended, however, that the police then illegally expanded the scope of the traffic stop when they asked about drugs and requested permission to search him and his vehicle. The defendant consented to the search, according to police.

The court of appeals, in an opinion written by Judge Vergeront, affirmed the convictions. The case fell within the recent holding of Ohio v. Robinette, 1996 WL 662461. The Fourth Amendment does not require that "a lawfully seized person be advised that he or she is free to go before his or her consent to search will be recognized as voluntary." The key is reasonableness. The defendant's detention was not unreasonably prolonged by the officers' asking permission to search the defendant. The delay that followed resulted from the defendant's permission to allow the search.

Searches - Invalid Third-party Consent

State v. Kieffer, No. 96-0008-CR (filed 11 Dec. 1996)(ordered published 28 Jan. 1997)

The defendant was convicted for possessing psilocybin mushrooms in violation of the controlled substances law. The court of appeals, in an opinion written by Judge Snyder, reversed the conviction based upon the illegal seizure of evidence.

The court held that a man named Garlock lacked the authority to permit the police to enter and search a loft area. Garlock owned the property and allowed his daughter and the defendant, his son-in-law, to live there. Garlock did not occupy or use the loft space. Only the defendant and the daughter had keys to the loft. Garlock never went there unless he had their permission.

Nor could the police claim that they reasonably believed that Garlock could grant such permission. The police asked only whether the defendant and the daughter paid rent. They did not ask Garlock whether he ever went into the loft without defendant's permission. In short, the police could not reasonably rely upon the single question about rent. Moreover, the daughter's later request for a search warrant totally negated any vestige of third-party consent.

Elder law

Abuse or Neglect of Nursing Home Residents - Wis. Stat. section 50.07(1)(e) - No Private Cause of Action

Hausman v. St. Croix Care Center Inc., No. 96-0866 (filed 10 Dec. 1996) (ordered published 28 Jan. 1997)

Section 50.07(1)(e) of the Wisconsin Statutes provides that no person may "intentionally retaliate or discriminate against any resident or employee for contacting or providing information to any state official, or for initiating, participating in, or testifying in an action for any remedy authorized under this subchapter." Section 50.07(2) provides that violators of the above section may be fined up to $l,000, imprisoned up to six months, or both, for each offense.

The plaintiffs were employed at the St. Croix Care Center and they contended that section 50.07(1)(e) creates a private cause of action for their alleged retaliatory discharge for having disclosed abuse or neglect of elderly nursing home residents.

The court of appeals, in a decision authored by Judge Myse, concluded that no private right of action is created by section 50.07(1)(e). In determining whether the statute creates a private cause of action, the court considered the enforcement method the Legislature has chosen. Section 50.07(2) provides for a fine or imprisonment or both for violations. The Legislature thus established a clear mechanism to enforce the statute: A violation of this law is a criminal and public matter rather than a private one. The only enforcement mechanism contained in the statute is a criminal penalty; it is silent as to any private cause of action. Had the Legislature intended to create a private cause of action, said the court, it could have provided for dual enforcement. The existence of the penalty provision and the presumption against implying private rights of action compelled the court to conclude that the Legislature did not intend section 50.07(1)(e) to create a private cause of action.

Insurance

Lead Paint - Coverage Exclusions

Vance v. Sukup, No. 95-2851 (filed 23 Dec. 1996)(ordered published 28 Jan. 1997)

The plaintiffs sued their landlord and his insurer, American Family, for injuries allegedly caused by lead paint on the premises that they rented. American Family denied coverage under a "Business Key policy." The trial judge denied American Family's motion for summary judgment based upon its lack of coverage, resulting in this appeal.

The court of appeals, in an opinion written by Judge Fine, affirmed. The trial judge correctly ruled that lead paint was not categorically a "contaminant" in the paint within the meaning of the policy's pollution exclusion. Nevertheless, the policy exclusion "may apply to damages caused by that lead if there is also a 'discharge, dispersal, seepage, migration, release or escape' of the lead." The plaintiff alleged that he was damaged by lead that left the painted surfaces as well as by lead from "intact accessible painted surfaces." The former may fall within the exclusion; the latter does not. Since some of the allegations are within the policy's coverage, the insurer has a duty to defend the landlord.

Medicaid

Eligibility - Divestment of Assets - Failure to Claim Against Estate of Deceased Spouse

Tannler v. Wisconsin Department of Health and Social Services, No. 96-0118 (filed 12 Nov. 1996) (ordered published 19 Dec. 1996)

This case concerns the continuing eligibility of the petitioner for Medical Assistance (Medicaid) ("MA") benefits. To be eligible to receive Medicaid benefits, an individual must meet strict income and asset limits. In determining whether a person is entitled to benefits, a state may only consider the income and assets actually "available" to the applicant. An individual is prohibited from divesting himself or herself of assets in order to meet the limits.

The definition of "assets" is significant in cases involving MA eligibility and the term is statutorily defined as follows: "the term 'assets,' with respect to an individual, includes all income and resources of the individual and of the individual's spouse, including any income or resources which the individual or such individual's spouse is entitled to but does not receive because of action ... by the individual or such individual's spouse."

The facts in this case were not in dispute. The petitioner was initially determined to be eligible for MA benefits in 1993 when a "community spouse asset allocation" was completed, transferring certain assets to her husband. The husband died in 1994 leaving a will that bequeathed all of his assets and property to a grandson, while leaving his wife (the petitioner) nothing. The petitioner did not object to the admission of the will to probate, nor did she file any elections or requests for classification of marital property or allowances.

The petitioner continued to receive MA benefits until 1995 when the Department of Health and Social Services notified her that it was terminating her eligibility because she "is refusing to take action to claim the statutorily required portion of a deceased spouse's estate." The department ultimately terminated the petitioner's MA eligibility, relying in part upon the definition of "assets" quoted above and upon an interpretation of that definition contained in the MA Handbook, which states that divestment actions that cause income or assets not to be received "because of action" by the spouse include "refusing to take action to claim the statutorily required portion of a deceased spouse's or parent's estate." The petitioner sought judicial review and the circuit court reversed the department's decision. In a decision authored by Judge LaRocque, the court of appeals reversed the circuit court.

The appellate court concluded that reasonable persons could attribute different meanings to the word "action" as it is used in the definition of assets quoted above. It could mean, as the petitioner argued, only affirmative or active conduct. It could also mean, as the department contended, "acts of omission" as well. Because the statute is ambiguous, the court considered its purpose. Medical Assistance is a joint federal-state program aimed at providing medical services to the poor and needy. The divestment provisions of that program are an attempt to prevent the government, and therefore the taxpayers, from having to subsidize the medical care of individuals who are, but for divestment, able to pay the cost of their own care. The department's interpretation of the statute referred to above is consistent with this purpose: A failure to file a claim for one's statutorily required share of an estate results in the government subsidizing the health care of that individual when, but for the failure to file, the individual would be able to pay the cost of his or her own care.

Giving due weight to the department's final decision and order, the court of appeals concluded that the petitioner's decision not to file a claim against her husband's will was an "action" within the meaning of the statute because her decision resulted in exactly the type of divestment which that provision was designed to address.

Judge Cane filed a dissenting opinion.

Motor vehicle law

OWI - Administrative Suspension - Finding of No Probable Cause - Issue Preclusion in Subsequent Criminal Prosecution

State v. Kasian, No. 96-1603-CR (filed 27 Dec. 1996) (ordered published 28 Jan. 1997)

The defendant was arrested for OWI. He submitted to a chemical test that showed he had a prohibited alcohol concentration and he therefore was notified that his operating privileges were administratively suspended pursuant to Wisconsin's Administrative Suspension law. See Wis. Stat. 343.305(7). The defendant sought a Department of Transportation administrative review of his suspension pursuant to section 343.305(8). At the administrative hearing the defendant argued that probable cause did not support his arrest. This is an issue at the administrative hearing and the hearing examiner agreed with the defendant's position. Accordingly, the administrative suspension was lifted.

Thereafter the state issued a criminal complaint charging the defendant with OWI and operating a motor vehicle with a prohibited alcohol concentration. The defendant raised various challenges to the prosecution, including a motion to suppress the chemical test evidence because the police did not have probable cause to arrest him. He took this argument one step further and contended that because the issue of probable cause had already been conclusively decided against the state in the administrative suspension proceeding, the state was precluded from arguing against his motion to suppress in the criminal prosecution. The circuit court denied the motion to suppress and the defendant pled guilty to the OWI charge.

The principal issue on appeal was whether the circuit court was obligated on grounds of issue preclusion to follow a prior administrative determination by the Department of Transportation that probable cause did not support his arrest. In a decision authored by Judge Nettesheim, the court of appeals concluded that the circuit court was not precluded from litigating the issue of probable cause on the merits. Accordingly, it affirmed the defendant's conviction.

Issue preclusion is designed to limit the relitigation of issues that have been actually litigated in a previous action. Wisconsin courts have moved away from a formalistic approach to issue preclusion in favor of a more equity-based approach. Among the reasons the court cited for holding that a probable cause determination in a DOT administrative review proceeding does not preclude consideration of the same issue at the circuit court level in a criminal proceeding were: 1) under the statutes the state has no mechanism for causing the hearing examiner's decision to be reviewed; 2) the administrative suspension hearing is highly informal and does not create or invite an "adversary proceeding" in the traditional sense of that phrase; 3) the statutes make no provision for any entity to serve as the prosecutor in the administrative suspension hearing; 4) the DOT proceeding is not of the quality or extensiveness that the law requires for issue preclusion to apply; and 5) as a matter of public policy the state should not lose potentially important and relevant evidence on the basis of the cursory administrative proceeding envisioned by the administrative suspension statute.

Open records law

Police Reports - Reports Documenting Use of Deadly Force by Police Officers

State ex rel. Journal/Sentinel Inc. v. Arreola, No. 95-2956 (filed 17 Dec. 1996) (ordered published 28 Jan. 1997)

A newspaper reporter made an open records request for certain information from the Milwaukee Police Department. In sum, the reporter sought copies of reports filled out when a police officer discharges his or her weapon. The police records custodian denied the request, indicating that the information would not be released because it involved internal personnel matters. Among other things the city also contended that disclosure: 1) would adversely affect the police department's ability to conduct effective investigations; 2) would impinge on officers' reputational and privacy interests; 3) would give the requestor greater access to the records than the employee has; 4) would impinge upon the department's ability to attract and retain competent personnel; and 5) would discourage victims and witnesses from providing information.

The circuit court issued a writ of mandamus requiring the city to release certain of the documents requested and the court of appeals, in a decision authored by Judge Wedemeyer, affirmed in part and modified in part.

The appellate court held that the public is entitled to inspection of all the factual information regarding the use of deadly force by the police. It interpreted this information to include: 1) who discharged a weapon; 2) when it was discharged; 3) the general circumstances surrounding the incident; and 4) the names and identifying information of any victims or witnesses, unless those individuals have requested confidentiality.

The court further concluded that the public is not entitled to inspect those portions of the reports prepared by police supervisors that contain conclusions, recommendations or other comments involving potential or actual disciplinary actions. The court also held that officers' home addresses should not be subject to disclosure. These items must be redacted because the privacy concerns attached to such outweigh the public's right to access this limited information.

Paternity

Putative Father - Blood Tests - "Parental Fitness"

Thomas M.P. v. Kimberly J.L., No. 96-0697 (filed 10 Dec. 1996) (ordered published 28 Jan. 1997)

Thomas filed a paternity action attempting to establish that he was the father of Kimberly's baby. He claimed that the child was conceived during a "romantic relationship" but Kimberly claimed that Thomas had "raped" her. The trial court conducted a "pre-blood test hearing" and determined that it was not in the child's best interest to establish whether Thomas was the father.

The court of appeals, in an opinion written by Judge Cane, reversed. Section 767.48 of the Wisconsin Statutes "expressly provides the alleged father of a child the right to a determination of paternity, regardless of the circumstances of the case or the circumstances out of which paternity may have arisen." Thus, the Legislature has not provided for a "best interests" hearing. Nor has the Legislature eliminated the standing of an alleged father even where the mother claims that she was raped by him. Thomas's fitness to be a parent must be decided in the context of an action to terminate parental rights. Finally, the court held that the Legislature's classifications did not violate the equal protection clause.

Property

Damages - Illegal Tree Cutting - Offsets

Tydrich v. Bomkamp, No. 96-2086 (filed 27 Dec. 1996)(ordered published 28 Jan. 1997)

The plaintiff appealed a damage award under section 26.09 of the Wisconsin Statutes for the unlawful cutting of 35 large trees on his farm. The court of appeals, in an opinion written by Judge Deininger, affirmed.

First, the court rejected the plaintiff's argument that he was entitled to the "highest market value" of the cut logs and that the trial judge erred in deducting tree cutting costs from the timber's market value, leaving him with only the "stumpage value." Tracing the legislative history of section 26.09, the court observed that the Legislature had repealed a "highest market value" provision and that section 26.09 contemplated a "common law" remedy. Second, the trial court acted properly when it offset the net sale proceeds that the plaintiff received for the logs against the statutory double damage award.

Torts

Governmental Immunity - Equitable Actions Seeking Injunctive Relief

Johnson v. City of Edgerton, No. 96-0894 (filed 5 Dec. 1996) (ordered published 28 Jan. 1997)

The plaintiffs appealed from a summary judgment dismissing their action against the City of Edgerton. They sued the city for injunctive relief and damages when they were unable to gain access to their property from the unimproved "stub-end" of a city street. The circuit court dismissed the action, concluding that the city was immune from suit under the "governmental immunity" provisions of section 893.80(4) of the Wisconsin Statutes for its refusal to open the street to the plaintiffs' lot line.

One of the critical issues before the court of appeals was whether the immunity granted by the statute cited above is limited to actions in tort, or whether it extends to equitable actions seeking injunctive relief. In a decision authored by Chief Judge Eich, the court of appeals concluded that the official immunity provisions of the statute are not limited to tort or money-damage actions, but are equally applicable to actions which, like the plaintiffs,' seek injunctive relief against a governmental subdivision or employee.

Governmental Immunity - Discretionary Acts - Exceptions

Bauder v. Delavan-Darien School District, No. 95-0495 (filed 27 Nov. 1996)(ordered published 28 Jan. 1997)

The plaintiff was injured when a deflated soccer ball struck him in the eye during a school gym class, which had been moved inside because of bad weather. The trial judge dismissed the complaint against the school district on the ground of governmental immunity.

The court of appeals, in an opinion written by Judge Brown, affirmed. First, the teacher's actions were discretionary. The teacher moved the class inside because of bad weather. He also decided to deflate the soccer ball to reduce the chance of injury. These decisions were not rendered "ministerial" because state statutes require school districts to provide physical education classes.

Second, this case did not fall within any of the recognized "exceptions" to the governmental immunity defense. The deflated soccer ball did not present a "known present danger"; nor was it "clear and absolute" that school gyms should be used "only for basketball and nothing else." The court also rejected the assertion that the teacher's discretionary decisions fell outside the "context" of the governmental activity (teaching gym). The supreme court has limited this latter exception to cases involving medical discretion.

Third, the plaintiff had no nuisance claim. (Nuisance is not affected by governmental immunity.) In a nutshell, using a gym to teach a physical education class did not create a nuisance under any reasonable construction of the facts.

Wisconsin Lawyer