Wisconsin Lawyer
Vol. 75, No. 10, October 2002

Supreme Court Digest

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

Labor Law Criminal Procedure

Property Law Sexually Violent Persons

Criminal Procedure

Judicial Notice of an Element of a Penalty Enhancer - Constitutional Error - Application of the Harmless Error Rule

State v. Harvey, 2002 WI 93 (filed 9 July 2002)

The defendant was charged with possession of cocaine with intent to deliver. To this charge the state added a penalty enhancer alleging that the underlying offense occurred within 1,000 feet of Penn Park in the city of Madison. This penalty enhancer increased the potential maximum imprisonment for the underlying crime by five years.

At trial, over the defendant's objection, the circuit court took judicial notice that Penn Park is a "city park" within the meaning of the penalty enhancer statute. See Wis. Stat. § 961.49(1)(b)1. It instructed the jury that it was to accept the judicially noticed fact as true. The defendant was convicted of the enhanced offense and the court of appeals affirmed the conviction.

In a majority decision authored by Justice Sykes, the supreme court affirmed the court of appeals. The court began its analysis by examining the jury instruction described above. The court relied on Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that the elements of a penalty enhancer (other than a prior conviction) are elements of the offense, which must be submitted to the jury and proven beyond a reasonable doubt. The court concluded that a jury instruction that directs a jury to accept as true a judicially-noticed fact that constitutes an element of the crime "is indistinguishable from a mandatory preclusive presumption on an elemental fact, which is unconstitutional...." (¶ 5)

The court further held that under State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991), and Neder v. United States, 527 U.S. 1 (1999), this type of constitutional instructional error is subject to application of the harmless error rule. It concluded that the error was harmless because in this case it cannot be and is not disputed that the park in question is a city park. "It is clear beyond a reasonable doubt that a properly instructed, rational jury would have found the defendant guilty of the enhanced offense. Under these circumstances, the error cannot have contributed to the verdict" (¶ 48).

Justice Crooks filed a concurring opinion that was joined by Justice Wilcox. Chief Justice Abrahamson filed a dissent that was joined by Justice Bradley.

Detention During Execution of Search Warrant - Voluntariness of Consent to Search

State v. Vorburger, 2002 WI 105 (filed 16 July 2002)

Police obtained a warrant to search a motel room for controlled substances. While that warrant was being obtained, officers observed three people, including Amerie Becker, approach the room. When one of the individuals inserted a key into the lock, the officers approached the trio, handcuffed them and performed pat-down searches but discovered no weapons. The trio was detained in the motel hallway, each separated from the others. The time was about 9:20 p.m. An officer told Ms. Becker that she was being detained and was not free to leave while the officers conducted an investigation, but that she was not under arrest. Early in the detention Becker asked to use the bathroom but ultimately declined to do so when a female officer told her that she would have to accompany her.

The search warrant arrived at the motel at about 10:05 p.m. and was executed about 10 minutes later. Fourteen pounds of marijuana were found during the search. Just after

10:30 p.m. an officer began questioning Becker. She was taken into a nearby room, her handcuffs were removed, and she was advised of her Miranda rights. At approximately 11:15 p.m. the interrogating officer told other officers that Becker had given consent for a search of the apartment she shared with another one of the detained persons. Becker was then transported to the apartment and during the search numerous controlled substances were found.

Several Fourth Amendment questions were raised in connection with the facts as described above. In a majority decision authored by Justice Prosser, the supreme court concluded that: 1) the investigative stop and detention of Becker constituted a seizure for Fourth Amendment purposes; 2) the stop and initial detention of Becker and the others were based on reasonable suspicion that they were about to commit a crime and the stop and initial detention were therefore lawful; 3) the officers acted reasonably in detaining Becker during the execution of the warrant even though the subject motel room was not registered to her; 4) the length of the detention related to the procurement and execution of the search warrant was roughly 70 minutes and this period of detention was not unreasonable given the time of day and the distance separating police headquarters, the residence of the judge who issued the search warrant, and the motel; 5) the officers acted reasonably in detaining Becker for questions after the warrant was executed, and the detention did not escalate into an arrest; and 6) Becker's consent to search her apartment was voluntarily given.

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justices Bablitch and Bradley.

Labor Law

Civil Service Employees - Wrongful Discharge - Use of "After-acquired Evidence" to Limit Award of Damages

Board of Regents v. Personnel Comm'n, 2002 WI 79 (filed 28 June 2002)

The appellant was a longtime employee of the University of Wisconsin-Milwaukee (UWM) Police Department. He was terminated from that position but successfully challenged that discharge before the Wisconsin Personnel Commission (the commission). During a hearing on damages for the wrongful discharge, the commission refused to permit UWM to admit evidence related to additional alleged misconduct committed by the officer during his employment with UWM. UWM had discovered this evidence after the discharge and argued that the evidence should have been admitted to limit any award of back pay to the officer. [UWM's theory was that this additional misconduct would have warranted termination and thus would limit the back pay due for the wrongful discharge.] The circuit court reversed the commission's decision to exclude this evidence, and the court of appeals certified the appeal to the supreme court.

The supreme court first considered whether the commission properly excluded UWM's evidence of the officer's subsequent misconduct when it was offered, without prior notice, during a hearing on damages to reduce the amount of back pay for the officer's wrongful discharge. In a majority decision authored by Justice Bablitch, the supreme court concluded that the commission properly exercised its discretion in excluding this evidence because the officer did not receive proper notice, consistent with due process and the civil service statutes, prior to the introduction of this evidence. It held that UWM was required to provide notice to the officer as contemplated by the civil service statutes and as required under due process before it could introduce evidence related to the alleged misconduct that occurred after the unlawful discharge. "Notice and a proper hearing addressing this misconduct is required to remain faithful to the due process interests of civil service employees in Wisconsin and to remain consistent with the policies of security of tenure and impartial evaluation prior to termination" (¶ 30).

The court also considered whether the commission properly denied fees and costs to the officer based on its conclusion that UWM's disciplinary actions against the officer were substantially justified. On the facts of this case and, granting great weight deference, the supreme court upheld the commission's determination.

Chief Justice Abrahamson did not participate in this decision. Justice Sykes filed a dissenting opinion.

Property Law

Condominiums - Definition of "Condominium Unit" - Conveyance of Riparian Rights

ABKA Ltd. Partnership v. Department of Natural Resources, 2002 WI 106 (filed 16 July 2002)

ABKA purchased the Abbey Harbor Marina on Geneva Lake in 1973. Over time the marina came to include 407 boat slips. Until 1995 the slips were rented to the public on a seasonal basis.

In 1995 ABKA filed a condominium declaration in order to convert the marina into a condominium form of ownership under Wis. Stat. chapter 703. The declaration provided for the creation of 407 units, with a unit defined as a four-by-five-by-six inch "lock box" to be located in the Harbor House. The configuration was similar to a set of small post office boxes. The unit definition in the declaration also provided that each unit would include "as an appurtenance standard riparian rights of owners of waterfront real estate under Wisconsin law, and the use of an assigned boat slip...."

In a majority decision authored by Justice Bradley, the supreme court concluded that the lock boxes are not "units" within the meaning of the condominium statutes. The statutory definition of a "unit" provides that it is a "part of a condominium intended for any type of independent use...." Wis. Stat. § 703.02(15). The court concluded that the lock boxes are not intended for any type of independent use within the meaning of the statute but, rather, they are phantom units that do not meet the statutory definition. In contrast to the lock boxes, the boat slips are clearly intended for a type of independent use (docking a boat), but the slips are not the "units" under ABKA's declaration. Nor could the court identify any legislative intent to permit a boat slip to be conveyed as a condominium unit. Because the lock boxes are not units within the meaning of the statute, there are no valid units and therefore there was no valid condominium conveyance of real property.

Without a valid condominium unit, the transfer of riparian rights that ABKA's declaration purports to accomplish is in violation of Wis. Stat. section 30.133, which provides that "no owner of riparian land that abuts a navigable water may convey, by easement or by similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water." Under section 30.133, riparian rights must be conveyed as attached to something; in this case, they are attached to nothing. The court concluded that ABKA violated the public trust doctrine because it attempted to convey condominium property contrary to section 30.133.

The court also held that the Department of Natural Resources had jurisdiction over ABKA's conversion of its marina to a condominium form of ownership.

Justice Bablitch filed a concurring opinion.

Justice Sykes filed a dissenting opinion that was joined by Justice Prosser.

Sexually Violent Persons

1999 Amendments to Wis. Stat. Chapter 980 - Double Jeopardy, Ex Post Facto and Due Process Challenges Rejected

State v. Rachel, 2002 WI 81 (filed 1 July 2002)

This case involved a number of constitutional challenges to several 1999 amendments to the sexually violent persons law (Wis. Stat. chapter 980). The primary impact of these amendments is to limit a chapter 980 respondent's ability to obtain supervised release. For example, under prior law, the circuit court could order commitment to supervised release immediately after the chapter 980 trial, and an institutionalized individual could petition for supervised release after six months of institutional placement. Under the 1999 amendments the circuit court no longer has the option to order commitment directly to supervised release after trial, and the individual must wait at least 18 months to petition for supervised release.

The respondent claimed that these amendments constitute ex post facto legislation and violate his right against double jeopardy. When analyzing these two claims, the threshold question is whether chapter 980 is civil or criminal in nature. Resolving this question is essential because to violate the Due Process or Ex Post Facto clauses, a statute must be criminal rather than civil in nature. In a majority decision authored by Justice Wilcox, the supreme court concluded that the amended statute is not criminal or punitive in nature and, consequently, a commitment under chapter 980 does not violate either the Double Jeopardy or Ex Post Facto clauses.

The court reached this conclusion by applying the "intent-effects test" derived from Hudson v. United States, 522 U.S. 93 (1997). The court concluded that the legislature intended that chapter 980 be a civil commitment statute, passed for the purposes of control and treatment of the individual. It further held that the respondent did not show "by the clearest proof" that the statute is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.

The respondent also challenged the 1999 amendments on due process grounds. The court concluded that the amendments do not put chapter 980 in violation of substantive due process guarantees. "The statute continues to serve the compelling state interests of treatment of the dangerously mentally ill and protection of the public, and is narrowly tailored to meet those interests" (¶ 70).

Justice Bradley filed a concurring opinion. Chief Justice Abrahamson and Justice Bablitch filed dissents.

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