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    Wisconsin Lawyer
    September 01, 2013

    Court of Appeals Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online.

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

    Civil Procedure

    Pleading – Relation-Back Rule – Special Assessments

    CED Props. LLC v. City of Oshkosh, 2013 WI App 75 (filed 1 May 2013) (ordered published 26 June 2013)

    Holding: The “relation-back” rule of pleading did not apply in a challenge to special assessments in which the property owner tried to challenge a second distinct assessment on the same building after the 90-day time limit expired.

    A property owner (CED) owned a building at the intersection of Jackson Street and Murdoch Street in Oshkosh. CED filed a notice of appeal and complaint with the circuit court challenging a $20,000 special assessment against its “Murdoch Street” property. Nine months later it filed an amended complaint challenging another $20,000 special assessment levied against its “Jackson Street” property – the same building, a different street. The city conceded on the Murdoch Street claim, but the circuit court ruled that CED’s challenge to the Jackson Street assessment was not timely filed. CED appealed.

    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.

    The court of appeals affirmed in an opinion written by Judge Gundrum. Section 66.0703(12) of the Wisconsin Statutes provides that an appeal of a special assessment must be made within 90 days. First, the court rejected CED’s contention that there was only one special assessment and that CED had identified the wrong dollar amount ($20,000 instead of $40,000) in its original complaint. The record showed that the city levied two special assessments – one running to each street (Jackson and Murdoch) (see ¶ 13).

    CED was not saved by Wisconsin’s “liberal policy of notice pleading” (¶ 14). Focusing on the original complaint, the court held that “[e]ven the most generous reading of the complaint does not allow an inference that CED was attempting to appeal the $19,404.93 Jackson Street special assessment” (¶ 18). Finally, the court held that while the relation-back rule, Wis. Stat. section 802.09(3), applies to appeals of special assessments, the rule did not save CED because the specific “occurrence/event” alleged in the original complaint was the Murdoch Street assessment, not the Jackson Street assessment.

    Judge Reilly dissented. He contended that the majority paid only “lip service” to the “liberal notice pleading rule” while reverting to the bygone practice of “strictly construing the complaint’s technical defects against the pleader” (¶ 26). Moreover, the majority “rewards the City for its failure to provide the statutorily required notice” to those affected by special assessments. Only though discovery did CED learn about the second Jackson Street assessment (see ¶ 29).

    Summary Judgment – Consumer-Debt Assignments – Palisades Rule

    Central Prairie Fin. v. Yang, 2013 WI App 82 (filed 29 May 2013) (ordered published 26 June 2013)

    Holding: The Palisades rule did not foreclose summary judgment against a debtor in a situation in which the assignee of credit card debt produced documentation to validate the existence and amount of the indebtedness under a contract with the original creditor and the transactions by which that indebtedness (and records of it) was assigned to it.

    Yang incurred credit card debt on an account issued by Chase Bank. Yang defaulted. Chase sold the debt to Central Prairie Financial, which obtained summary judgment against Yang despite Yang’s assertions that the records of the underlying Chase debt were inadequate under the rule in Palisades Collection LLC v. Kalal, 2010 WI App 38, 324 Wis. 2d 180, 781 N.W.2d 503.

    The court of appeals affirmed in an opinion written by Chief Judge Brown. This case involved “an ordinary action to collect money owed under a contract” (¶ 7). The special pleading requirements governing “creditors” thus did not apply because Central Prairie was the assignee of a consumer debt and did not regularly lend money to consumers (see ¶ 6).

    The court described in detail the abundant documentary evidence Central Prairie provided to prove the debts Yang owed Chase. “Palisades stands for the extremely narrow proposition that the hearsay exception for business records is not established when the only affiant concerning the records in question lacks personal knowledge of how the records were made” (¶ 9). In “stark contrast” to the meager documentation in Palisades, “Central Prairie has produced documentation to validate the existence and amount of the indebtedness under a contract with the original creditor, Chase, and the transactions by which that indebtedness (and records of it) was assigned to Central Prairie” (¶ 10). “In short, this is not a Palisades case” (¶ 14).

    Summary Judgment – Records – Palisades

    Bank of America v. Neis, 2013 WI App 89 (filed 20 June 2013) (ordered published 31 July 2013)

    Holding: In summary judgment proceedings in a foreclosure case, various documents, including the payment history, notice of intent to accelerate, and account information statements, were admissible as records of regularly conducted activities; the note and mortgage were admissible under other evidentiary doctrines.

    Bank of America obtained a judgment granting foreclosure on property owned by Neis. A key contention involved the admissibility of various records under the standards set forth in Palisades Collection LLC v. Kalal, 2010 WI App 38, 324 Wis. 2d 180, 781 N.W.2d 503.

    The court of appeals affirmed in an opinion written by Judge Blanchard that serves as an enormously helpful roadmap in applying Palisades and for summary judgment procedures generally. Because summary judgment must be based on admissible evidence, the court applied the hearsay exception for records of regularly conducted activities, Wis. Stat. section 908.03(6), to a range of documents, including the payment history, notice of intent to accelerate, account information statements, and the note and mortgage.

    The court held that all but the note and mortgage were covered by section 908.03(6) and satisfied the additional Palisades standards as well (see ¶ 22). Under this framework, the proponent of the evidence must make a prima facie showing of admissibility that may then be challenged by the opponent. In this connection, the court considered the affidavit and deposition of the records custodian in some detail with an eye toward her qualifications and her personal knowledge.

    As for the note and mortgage, those documents were admissible not under section 908.03(6) – the custodian could not provide the foundation for them – but under what is best known as the verbal-acts doctrine, well recognized by the case law and applicable to documents that create legal obligations or rights (such as mortgages and notes) (see ¶ 49). Finally, the court rejected several other issues that are case specific and not of any broader importance.

    Criminal Procedure

    Speedy Trial – Multiplicity

    State v. Lock, 2013 WI App 80 (filed 7 May 2013) (ordered published 26 June 2013)

    Holding: The right to a speedy trial was not violated for a defendant in custody facing federal charges and serving a life sentence for murder.

    State and federal prosecutors brought multiple charges against Lock. The opinion here pertains to the third of such cases, in which Lock was convicted of prostitution-related offenses involving a ring that operated for years between Wisconsin and Nebraska.

    The court of appeals affirmed in an opinion written by Judge Brennan. First, no error occurred when the trial judge essentially adopted the state’s brief in rejecting Lock’s motions for postconviction relief. No rule prohibits the adoption of a brief. And because the court of appeals independently reviews constitutional challenges anyway, Lock’s assertion was “inconsequential” (¶ 12).

    Turning to Lock’s constitutional claims, the court first held that a 14-month delay while Lock was being held in federal custody did not deny his right to a speedy trial. Simply put, because Lock was serving life terms for murder regardless, he was not prejudiced by the delay (see ¶ 22). Federal authorities declined to produce Lock for further state trials until his federal charges were addressed. Nor was there any evidence of collusion between state and federal prosecutors. Second, Lock was properly convicted of substantive conspiracy to commit prostitution and several completed prostitution offenses. This issue propelled the court’s discussion of Wis. Stat. section 939.72, which ordinarily prohibits convictions for both substantive conspiracy and the conspiracy’s object offense (see ¶ 34). Here the conspiracy was far broader than the specific offense with which Lock also was charged; thus, convictions for both conspiracy and the completed offenses were proper.

    Finally, prosecutorial misconduct did not deny Lock due process. This issue related to Lock’s speculation about whether the state knowingly granted sentencing concessions to a key prosecution witness who had been one of Lock’s confederates.

    Guilty Plea Proceedings – Informing the Accused of the “Nature of the Charge”

    State v. Robles, 2013 WI App 76 (filed 1 May 2013) (ordered published 26 June 2013)

    Holding: A guilty plea colloquy was not rendered deficient by the circuit judge failing to specifically use the term “felony” when advising the defendant about the nature of the charge to which she was entering a guilty plea.

    Robles pleaded guilty to and was convicted of felony identity theft. Before accepting Robles’ plea, the circuit court engaged in a plea colloquy with Robles that she concedes was sufficient in all relevant respects except that the court neglected to use the word felony. Robles filed a postconviction motion to withdraw her plea on the ground that she was not adequately informed of the nature of the charge, as required by Wis. Stat. section 971.08(1), solely because the court failed to inform her during the colloquy that the charge to which she was pleading was a felony. The circuit court denied her motion without an evidentiary hearing. In a decision authored by Judge Gundrum, the court of appeals affirmed.

    In addition to other requirements, Wis. Stat. section 971.08(1) requires a circuit court accepting a defendant’s plea to address the defendant personally and determine that the plea is made voluntarily with understanding of the “nature of the charge.” The statute does not further define this term. However, supreme court cases dealing with other guilty plea issues “inform us that our supreme court recognizes the term ‘nature of the charge’ as referring to the elements of the charged offense or, more precisely, the elements of the offense in relation to the facts associated with that charge. Second, they advise us that a circuit court’s plea colloquy duties related to the ‘nature of the charge’ can be satisfied ‘by summariz[ing] the elements of the crime charged by reading from the appropriate jury instructions or from the applicable statute’” (¶ 10).

    “Based upon the foregoing, we conclude that the ‘felony’ or ‘misdemeanor’ designation of a charge is not part of the ‘nature of the charge.’ Accordingly, a circuit court accepting a plea is not required to specifically inform the defendant of the applicable designation” (¶ 13). Therefore, the defendant failed to make out a prima facie case that the plea colloquy in her case was deficient.

    Interstate Agreement on Detainers – Calculating Time – Receipt of Notice by District Attorney

    State v. Thomas, 2013 WI App 78 (filed 29 May 2013) (ordered published 26 June 2013)

    Holding: Under the Interstate Agreement on Detainers, the clock on the 180-day window within which the defendant must be brought to trial begins to run when the prosecutor actually receives the defendant’s demand for a speedy trial.

    This case involves the Interstate Agreement on Detainers (IAD). See Wis. Stat. § 976.05. Section 976.05(3)(a) requires that a defendant be brought to trial “within 180 days after the prisoner has caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the ... complaint” (emphasis added). The issue before the court of appeals in this case was when did Thomas “cause[] to be delivered” his written request “to the prosecuting officer.”

    In 2009, Thomas was charged in Milwaukee County with several felony offenses. On March 11, 2010, while Thomas was serving a sentence in an Illinois prison, he caused a certified letter to be sent to the Milwaukee County District Attorney’s Office and to the clerk of the Milwaukee County Circuit Court notifying the recipients that he was serving a sentence in Illinois and requesting that a final disposition be made of the complaint pending against him in Wisconsin. On March 15, 2010, an employee of Information Management Services Distribution (Information Management) received and signed for both of the defendant’s letters. One of the letters was then directed to the Milwaukee County District Attorney’s Office, which received the letter on March 18, 2010.

    The question before the court was whether the IAD’s 180-day time limit began to run on March 15, 2010 when the defendant’s letter was received by Information Management or, alternatively, on March 18, 2010 when the district attorney’s office received the letter.

    In a decision authored by Judge Brennan, the court of appeals concluded that the clock began to run on March 18. There was no evidence demonstrating that Information Management was an agent of the district attorney’s office; thus, the defendant failed to demonstrate that his speedy trial request was delivered to the prosecuting officer when it was received by Information Management on March 15 (see ¶ 18).

    Said the court, “[t]he purpose of the IAD is to prompt prosecutors to bring defendants to trial, which a prosecutor cannot do until he or she actually receives notice of the speedy trial request. The warden’s receipt of the request, or Information Management’s receipt of the request, does not give the prosecutor that notice …. By requiring that the speedy trial request be actually received by the district attorney before the 180-day clock starts running, the legislature was acknowledging that only the prosecutor (not a mail room) is in a position to timely move the prisoner on to trial” (¶ 20).

    Breach of Plea Agreement – Statement of Police Officer Victims at Sentencing

    State v. Stewart, 2013 WI App 86 (filed 11 June 2013) (ordered published 31 July 2013)

    Holding: The state did not breach a plea agreement when police officer victims advocated at sentencing for a sentence longer than that which the prosecutor recommended pursuant to the plea agreement.

    The defendant shot at police officers who were executing a search warrant at a residence where he was staying; he wounded one officer in the arm and his shots narrowly missed the other officer. Pursuant to a plea agreement, the defendant entered guilty pleas to three felonies, and the prosecutor agreed to recommend a sentence of “25 years globally” for the three crimes, consisting of 15 years’ initial confinement followed by 10 years’ extended supervision.

    At the sentencing hearing, the prosecutor repeated his agreed-on recommendation of a global 25-year sentence, and the circuit court received, without objection from the defendant, both oral and written impact statements from both police officers. Both officers told the court that they wanted Stewart to be sentenced to the maximum time allowable for each count. The circuit court, noting that it “was struck by the victim impact reports,” sentenced the defendant to a package that amounts to 25 years’ initial confinement followed by 15 years’ extended supervision.

    On appeal, the defendant argued that the state breached the plea agreement when the officers asked the court to impose maximum sentences. In a decision authored by Judge Brennan, the court of appeals concluded that because the officers were speaking as victims and not as agents of the state when they requested the maximum sentences, the state did not breach the plea agreement.

    Said the court, “the police officers were not speaking to the court as investigating officers, but as victims of a crime, which they have a right to do. In Wisconsin, every crime victim has the right ‘to make a statement to the court at disposition.’ … A victim’s right to provide a statement at sentencing expressing his or her view as to disposition is to be ‘honored and protected … in a manner no less vigorous than the protections afforded criminal defendants.’ Wis. Stat. § 950.01. Neither § 950.01 nor the Wisconsin Constitution except police officer crime victims from the right to provide an impact statement at sentencing. Because the officers here were speaking in their capacity as victims, and not as agents of the State, the State did not breach the plea agreement, and Stewart’s constitutional right to the enforcement of the agreement was not violated” (¶ 15) (citations omitted).

    The defendant argued that, if the police officers were in fact speaking as victims, State v. Harvey, 2006 WI App 26, 289 Wis. 2d 222, 710 N.W.2d 482, required the prosecutor to expressly disavow the police officers’ requests for the circuit court to impose the maximum sentence. The court of appeals disagreed. “Harvey does not stand for the proposition that a prosecutor must disavow a victim’s sentencing recommendations when they differ from the plea agreement …. Nor do we impose such a requirement now” (¶ 19). 

    Sentencing – Religious References by Sentencing Judge

    State v. Betters, 2013 WI App 85 (filed 18 June 2013) (ordered published 31 July 2013)

    Holding: The circuit court did not abuse its sentencing discretion by improperly relying on religious considerations.

    Defendant Betters agreed to plead guilty to one count of repeated sexual assault of the same child and one count of possession of child pornography. A third count, repeated sexual assault of another child, was dismissed and read in. During the sentencing proceeding, the circuit court first observed that the three primary objectives of a sentence are protection of the public, punishment of the defendant, and rehabilitation. It then analyzed Betters’s character and the gravity of the offenses.

    During its lengthy sentencing remarks, the court stated that “every child is a gift from God,” and it commented that Betters’s conduct toward the boys was “an abomination in the sight of God and in the sight of man, and … totally unacceptable.” The court imposed lengthy consecutive sentences. Betters filed a motion for postconviction relief, arguing that the court erroneously exercised its sentencing discretion by relying on religious considerations. The circuit court denied the motion.

    In a decision authored by Judge Mangerson, the court of appeals affirmed. Said the court, “[t]aken as a whole, the sentencing transcript in this case demonstrates that the court considered proper factors and linked them to appropriate sentencing objectives. Although the court used religious language, sparingly, during its analysis, Betters has failed to show that it is highly probable or reasonably certain his sentence was based on the court’s religious convictions. We stress again that the court’s invocations of a religious deity were ill-advised. However, not every ‘ill-advised word’ will create reversible error. The transcript reflects that the court’s offhand religious references addressed proper secular sentencing factors” (¶ 20) (citation omitted).  

    Those secular factors included the duty to protect the innocent (see ¶ 17) and the court’s suggestion that the defendant’s sexual abuse was no more offensive to the court’s religious sensibilities than it was to well-established social norms (see ¶ 18). Thus, the appellate court concluded that the court properly exercised its sentencing discretion. “The judge’s comments do not suggest Betters required a longer sentence to ‘pay religious penance’” (¶ 20) (citation omitted). 

    Substitution of Judge – Substitution Against Judge Originally Assigned to the Case

    State v. Bohannon, 2013 WI App 87 (filed 11 June 2013) (ordered published 31 July 2013)

    Holding: The circuit court did not err in denying the defendant’s request for substitution of judge.

    The judicial substitution statute provides in part that “[a] written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.” Wis. Stat. § 971.20(4). In this case, defendant Bohannon did not file such a request when his case was first assigned to a trial judge. Several months after arraignment, the case was transferred to a second judge. Later still, as a result of judicial rotation, his case was reassigned to the original judge. The defendant then filed a substitution request against the original judge. The request was denied, and the case was ultimately tried before the original judge.

    The defendant appealed, contending that his substitution request should have been granted because another subsection of section 971.20 makes special provisions for substitutions when a “new judge” has been assigned to the case. The defendant argued that the original judge was actually a “new judge” because his case had been transferred from the original judge to a different judge before being transferred back to the original judge.

    In a decision authored by Judge Curley, the court of appeals affirmed. It concluded that the judge who tried the case was the “original” judge for purposes of the substitution law – not a “new judge” (¶ 22). Accordingly, the defendant was required to file his substitution request against the trial judge when his case was first before her and before arraignment (see ¶ 26).

    Election Law

    Photo ID Law – 2011 Wis. Act 23 – Constitutionality of Statute Upheld Against Facial Challenge

    League of Women Voters of Wis. Educ. Network Inc. v. Walker, 2013 WI App 77 (filed 30 May 2013) (ordered published 26 June 2013)

    Holding: In a facial challenge to 2011 Wisconsin Act 23 (the photo ID law), the plaintiffs failed to demonstrate that the law is unconstitutional beyond a reasonable doubt.

    In 2011 Wisconsin Act 23, the legislature enacted statutes under which, with narrow exceptions, all persons seeking to vote must present one of several specified forms of photo identification to election officials. The League of Women Voters of Wisconsin Education Network Inc. (the League) sought a declaration in the circuit court that the photo identification requirement is facially invalid under article III of the Wisconsin Constitution. This case did not present a challenge to the photo identification requirement on any other state or federal constitutional ground.

    The circuit court agreed with the League and entered a judgment declaring the requirement unconstitutional and enjoining state officials from enforcing the challenged statutory provisions. In a decision authored by Judge Blanchard, the court of appeals held that the League failed to carry its heavy burden of overcoming the presumption that the photo identification requirement is, on its face, constitutional. Accordingly, the court of appeals reversed the circuit court’s decision.

    The appellate court began its analysis by characterizing the League’s principal arguments as follows: 1) the photo identification requirement impermissibly constitutes an “additional qualification” to vote not contained in article III; 2) the requirement is unconstitutional under the article III right to suffrage because it imposes a restriction that is on its face so burdensome that it effectively denies potential voters their right to vote and is therefore constitutionally unreasonable; and 3) in creating the requirement, the legislature exceeded the express authority granted to it under article III.

    Responding to these arguments, the appellate court first concluded that “the League’s ‘additional qualification’ argument is defeated by concessions the League makes and by Wisconsin Supreme Court precedent addressing the authority of the legislature to enact laws allowing officials to ascertain at the polls which potential voters are qualified to vote. The League has not shown that the photo identification requirement is on its face an ‘additional qualification’ for voting, as opposed to a voter registration regulation that allows election officials ‘to ascertain whether the person offering to vote possessed the qualifications required’” (¶ 3) (citation omitted).

    The appellate court further rejected the League’s implied argument that the requirement is unconstitutional under the article III right to suffrage because it imposes a restriction that is, on its face, so burdensome that it effectively denies potential voters their right to vote, and is therefore constitutionally unreasonable. “We express no opinion as to whether such an argument might have merit if supported by fact finding regarding the burdens imposed. However, in this facial challenge in which the League does not rely on any fact finding or evidentiary material, the implied argument falls short” (¶ 4).

    Finally, as to the argument that, even if the photo identification requirement is not an “additional qualification” or constitutionally “unreasonable,” the legislature nevertheless exceeded its authority in enacting the requirement, the court concluded that “this argument collapses with a concession by the League, which we believe is a warranted concession. The concession is that the legislature has implicit but broad constitutional authority to establish a voting registration system under which election officials may require potential voters to identify themselves as registered voters, including by requesting photo identification” (¶ 5).

    [EDITORS’ NOTE: In a footnote, the court noted that another challenge to Act 23 is pending before District II of the court of appeals. In Milwaukee Branch of the NAACP v. Walker, No. 2012AP1652, the plaintiffs make arguments not made in this case. “In particular, they argue that judicial review of Act 23 requires heightened scrutiny, and they appear to rely on due process and equal-protection-based arguments. Plaintiffs there also make fact-based arguments that the League does not make here. For example, the plaintiffs in the District II case argue that they have demonstrated as a factual matter that enforcement of Act 23’s provisions would ‘severely burden a significant number of qualified voters but [are] not reasonably necessitated or designed to deter fraud or otherwise effect an important government interest’” (¶ 7, n.2).]

    Employment Law

    Sick-Leave Benefits – County Employees

    Pasko v. Milwaukee Cnty., 2013 WI App 91 (filed 18 June 2013) (ordered published 31 July 2013)

    Holding: Two retired county employees were entitled to be paid for their unused sick time as provided by various union contracts and county ordinances.

    Two former Milwaukee County employees, Pasko and Porth, brought these consolidated cases to determine their sick-leave benefits upon retirement. The circuit court ruled in the retirees’ favor.

    The court of appeals affirmed in an opinion written by Judge Fine. The court held that Champine v. Milwaukee County, 2005 WI App 75, 280 Wis. 2d 603, 696 N.W.2d 245, was “dispositive of the core issue” (¶ 1). Both plaintiffs started work as county employees before moving into management positions. Both are now retired county employees. The opinion canvasses the undeniably generous county benefit provisions that the county has belatedly tried to roll back in recent years.

    “The circuit court correctly held that Pasko and Porth were entitled to accumulate uncapped sick-leave hours by virtue of the union contracts that governed their work for Milwaukee County before they accepted promotion to non-union managerial positions, and that those accumulations vested before they took their non-union management positions” (¶ 13).

    Nor did they waive their vested interest when they accepted the management positions. The circuit court properly found “(1) that Milwaukee County did not show that either Pasko or Porth intentionally gave up [his] right to the accumulated non-capped sick leave, and also (2) that they did not have the requisite knowledge, actual or constructive, from which that relinquishment could be found” (¶ 17). A final, fact-intensive, issue involved the calculation of their unused sick leave.

    Family Law

    Termination of Parental Rights – Stipulations

    Ronald J.R. v. Alexis L.A., 2013 WI App 79 (filed 8 May 2013) (ordered published 26 June 2013)

    Holding: In a termination of parental rights (TPR) case, the mother was bound by her stipulation waiving her right to appeal.

    Ronald sought to terminate Alexis’s parental rights to his and her child. As grounds, he alleged continuing denial of periods of physical placement (Alexis had drug issues) and her failure to assume parental responsibility. The circuit court granted summary judgment on the denial-of-physical-placement grounds, finding that an order denying placement had been in effect for more than one year. Ronald and Alexis then stipulated that Alexis would give up her right to appeal the summary judgment determination in exchange for Ronald dropping the failure-to-assume-parental-responsibility grounds. The court conducted a colloquy and accepted the stipulation. In a later hearing, Alexis’s parental rights were terminated. Despite the stipulation, Alexis appealed on constitutional grounds.

    The court of appeals affirmed in an opinion written by Chief Judge Brown. TPR cases are civil cases, although they are similar to criminal cases in some respects. Parties may waive their right to appeal by stipulation. Stipulations are binding although courts can relieve parties from them in appropriate cases.

    Alexis argued that had she known about the constitutional issue now raised by current counsel, she would not have stipulated to waive her right to appeal. The court rejected this position. “It goes without saying that if a party has the authority to waive the right to appeal via stipulation, it means that all viable appellate arguments, known or unknown, are also waived. Stipulations to waive an appeal do not come with an unseen asterisk noting that if the party thereafter becomes aware of a good argument to make on appeal, that party may back out of the bargain. If such were the case, stipulations to waive an appeal would become meaningless” (¶ 10).

    The court reasoned that Alexis surely weighed the risks and rewards of the stipulation. In hindsight she regrets the decision, “[b]ut hindsight does not make a stipulation invalid” under Wisconsin law (¶ 11). The circuit court properly exercised its discretion when accepting the stipulation after a methodical colloquy with Alexis. Finally, interests of justice did not warrant relieving Alexis of the stipulation.

    Termination of Parental Rights – Appeals – Timeliness – Habeas Corpus

    Amy W. v. David G., 2013 WI App 83 (filed 29 May 2013) (ordered published 26 June 2013)

    Holding: A parent may use the writ of habeas corpus in a termination of parental rights (TPR) case in which the attorney negligently missed the deadline for appeal, which by statute cannot be extended.

    Amy W. filed an action to terminate the parental rights of her child’s father, David G. After the court terminated David’s rights, the Office of the State Public Defender (SPD) appointed counsel to pursue an appeal. That lawyer, however, failed to file a timely appeal. Moreover, by statute the court of appeals cannot extend the time for filing a notice of appeal in a TPR case not filed by a representative of the public. Wis. Stat. § 809.82(2)(b). The SPD then filed this petition for a writ of habeas corpus.

    Judge Neubauer granted the writ of habeas corpus, finding all elements had been satisfied. First, the writ applied even though neither David nor his daughter was “restrained” of his or her liberty. “The question in such matters is not physical restraint but the assertion of a lawful right to retain custody of the child” (¶ 7). Second, the action implicated constitutional protections: “TPR proceedings merit greater protections because they implicate a parent’s fundamental liberty interest in the ‘companionship, care, custody, and management’ of his or her children’” (¶ 8).

    “Finally, David has no other remedy” (¶ 9). It was not his fault that his former counsel missed the appellate deadline. Former counsel’s performance was both deficient and prejudicial, as described in the opinion (see ¶ 11). Case law holds that the relief must be suited to the scope of the violation, so the court granted David’s petition and extended the time to file the notice of appeal (see ¶ 13).


    UM/UIM – “Toy” ATVs

    Paskiewicz v. American Family Mut. Ins. Co., 2013 WI App 92 (filed 26 June 2013) (ordered published 31 July 2013)

    Holding: A small all-terrain vehicle driven by a 3-year-old child was a “land motor vehicle” that fell within the policy’s UM/UIM coverage.

    A man and his 3-year-old granddaughter visited Michelle Paskiewicz. While operating a “miniature all-terrain vehicle,” the child ran into Michelle’s leg, causing serious injury. The Paskiewiczes sued their insurer, Acuity, under their uninsured and underinsured motorist (UM/UIM) coverage. The circuit court granted summary judgment in favor of Acuity on grounds that the vehicle was a “child’s toy” and hence not covered by the policy (see ¶ 3).

    The court of appeals reversed in an opinion authored by Judge Gundrum. It held that the policy’s term “land motor vehicle” was unambiguous and covers the vehicle driven by the 3 year old (see ¶ 6). The opinion describes the “miniature” ATV in some detail and also summarizes a persuasive Arizona case.

    “Significantly, Acuity has identified no language in the policy which would exclude a motor-powered vehicle which operates on land, such as the Meerkat50-4A, from coverage based upon its size, the speed at which it can travel, or its primary use being for the entertainment or recreation of children. According to the manufacturer, the Meerkat50-4A weighs over 150 pounds and is designed to travel at speeds exceeding 20 miles per hour. These facts are not so insignificant as to lead to the conclusion that the Meerkat50-4A somehow does not ‘count’ as a ‘land motor vehicle’” (¶ 9).  

    Stacking – UIM

    Westra v. State Farm Mut. Auto. Ins. Co., 2013 WI App 93 (filed 18 June 2013) (ordered published 31 July 2013)

    Holding: In applying the various seemingly irreconcilable stacking statutes, the court held that the insured was barred from recovering UIM coverage limits from two vehicles.

    Westra was severely injured while riding a motorcycle when he was struck by an underinsured driver. Westra recovered the limits of the tortfeasor’s policy as well as the underinsured motorist (UIM) limits on his own insured motorcycle plus the UIM (and medical payment limits) on two of his other vehicles. He also sought the UIM limits from policies on two other vehicles, which State Farm denied based on the policies’ antistacking provision.

    The circuit court ruled that Wis. Stat. sections 631.43(1) and 632.32(6)(d) are “irreconcilable because the former prohibited anti-stacking provisions in all insurance policies, but the latter allowed insurers to limit the stacking of underinsured motorist coverage to the coverage limits for three vehicles. Because the statutes could not be harmonized, the court decided the more specific statute, § 632.32(6)(d), should govern. The court further concluded the plain language of § 632.32(6)(d) unambiguously permitted the anti-stacking provision in State Farm’s policies” (¶ 7). The court granted summary judgment in favor of State Farm.

    The court of appeals affirmed in an opinion written by Judge Stark that agreed with the circuit court’s reasoning. The court rejected Westra’s manifold arguments that Wis. Stat. sections 631.43(1) and 632.32(6)(d) could be “harmonized.” It also held that section 632.32(6)(d), the more specific statute, permitted the policy’s antistacking provision (see ¶ 28). Moreover, even if the provision is deemed an exclusion under the policy, it is nonetheless a permissible exclusion (see ¶ 30).

    Motor Vehicle Law

    OWI – Seventh Offense – Confinement in Prison Not Mandated

    State v. Williams, 2013 WI App 74 (filed 11 April 2013) (ordered published 26 June 2013)

    Holding: The circuit court erred when it concluded that it was required to impose a minimum three-year prison term for a seventh-offense operating while intoxicated (OWI) conviction.

    The defendant was convicted of OWI. This was his seventh impaired-driving conviction. Under the OWI law’s penalty provisions, seventh, eighth, and ninth offenses are classified as Class G felonies. The ordinary maximum penalty for a Class G felony is a fine not to exceed $25,000, imprisonment not to exceed 10 years (consisting of a prison term of not more than 5 years followed by an extended-supervision term of not more than 5 years), or both. A special provision in the OWI penalty statutes provides that for seventh, eighth and ninth offenses, “the confinement portion of a bifurcated sentence … shall be not less than 3 years.” Wis. Stat. § 346.65(2)(am)6.

    The issue in this case was whether the circuit court erred when it concluded that it was required by the statute cited above to impose on the defendant a prison term of not less than three years. In a majority decision authored by Judge Sherman, the court of appeals concluded that the circuit court did indeed err in its interpretation of the statute.

    “Although [§ 346.65(2)(am)6.] references the imposition of a bifurcated sentence, and specifies the minimum term of incarceration in the event that a bifurcated sentence is imposed, nothing in the plain language of [§ 346.65(2)(am)6.] mandates or requires that a bifurcated sentence be imposed” (¶ 9). However, “in the event that a bifurcated sentence is imposed on a defendant who is found guilty of a seventh offense OWI, the circuit court must impose a minimum period of incarceration of three years” (¶ 12).

    Judge Blanchard filed a dissenting opinion.

    Real Property

    Driveway-Access Permit – Revocation

    J&E Investments LLC v. Division of Hearings & Appeals, 2013 WI App 90 (filed 25 June 2013) (ordered published 31 July 2013)

    Holding: The Wisconsin Department of Transportation (DOT) properly revoked a driveway-access permit that had been granted to a commercial property.

    J&E owned a two-story, multitenant commercial building and two parking lots on a busy street. The DOT revoked a driveway-access permit it had granted to a prior owner in the 1960s. J&E appealed but the Division of Hearings and Appeals (DHA) upheld the DOT. The circuit court affirmed the DHA’s decision.

    The court of appeals affirmed in an opinion written by Judge Curley. The court applied “due weight review” to the DHA’s decision (see ¶ 13). It held that the DOT was authorized to revoke the permit under Wis. Stat sections 86.073 and 86.07(2) (see ¶ 18). Nor was this statutory authority limited to permits issued after 1983, when the former statute was enacted (see ¶ 19).

    The court also upheld the finding that J&E had reasonable alternative access, a factual finding (see ¶ 22). Further, it concluded that an estoppel argument was not properly before the court.

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