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    Wisconsin Lawyer
    December 01, 2014

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel Blinka & Thomas Hammer

    Administrative Law

    Contested Case Hearings – Wis. Stat. § 227.42

    Haase-Hardie v. DNR, 2014 WI App 103 (filed 3 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The Wisconsin Department of Natural Resources (DNR) lawfully refused to grant a contested-case hearing on various issues related to air-pollution-control permits.

    SUMMARY: The DNR granted Haase-Hardie’s petition for a contested-case hearing on three issues related to air-pollution-control permits issued to Preferred Sands of Wisconsin LLC. However, the DNR refused to grant a contested-case hearing on four additional issues raised in Haase-Hardie’s petition, concluding Haase-Hardie had not demonstrated that those issues involved disputes of material fact. Haase-Hardie argued she was entitled to a contested-case hearing on all seven issues she raised because each issue involved at least one dispute of material fact.

    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.

    In the alternative, Haase-Hardie contended that she did not need to demonstrate disputes of material fact regarding every issue raised in the petition because, as long as any one of the issues involved a dispute of material fact, she was entitled to a contested-case hearing on all the issues. The circuit court dismissed her petition for judicial review.

    In a decision authored by Judge Stark, the court of appeals affirmed. In a lengthy analysis that is fact intensive (see ¶¶ 13-26), the appellate court agreed with the DNR and the circuit court that Haase-Hardie failed to demonstrate the existence of disputes of material fact regarding four of the issues raised in her petition for a contested-case hearing (a requirement of Wis. Stat. section 227.42(1)). [Note: This case was controlled by section 227.42 because Haase-Hardie was not a permit holder, permit applicant, or order recipient, nor did she submit comments in the public-comment process. See ¶ 11.]

    Applying the same statute, the court of appeals rejected Haase-Hardie’s argument that she was entitled to a contested-case hearing on each issue raised in the petition as long as she showed the existence of a dispute of material fact regarding one of the issues (see ¶¶ 2, 32).

    Civil Procedure

    Service of Process on Governmental Entity – Wis. Stat. § 990.001(4)(c) – Deadlines Falling on Saturdays

    Madison Metro. Sch. Dist. v. Evers, 2014 WI App 109 (filed 11 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The circuit court erred in concluding that service of process on a governmental entity was untimely despite the Saturday-extension rule codified in Wis. Stat. section 990.001(4)(c).

    SUMMARY: The Wisconsin Department of Public Instruction (DPI) rendered decisions adverse to the Madison Metropolitan School District (the District) in administrative actions. To obtain circuit court review of the DPI’s decisions, the District was required to file its petitions with the clerk of circuit court and to serve the petitions on the DPI or one of the DPI’s officials personally or by certified mail within 30 days after service of the decisions to be reviewed. See Wis. Stat. § 227.53(1)(a). The last day of this 30-day period fell on a Saturday (a day on which the DPI had no official office hours). The District filed the petitions before the Saturday deadline but served the petitions on the DPI by sending them via certified mail on the following Monday.

    The DPI moved to dismiss, arguing that service was untimely. The circuit court granted the motion, agreeing with the DPI that the Saturday-extension rule did not apply because the DPI did not need to be open on the Saturday deadline for the District to accomplish service by certified mail, one of the service options under Wis. Stat. section 227.53(1)(a). The circuit court thus concluded that the District failed to timely serve the petitions on the DPI. In a decision authored by Judge Lundsten, the court of appeals reversed.

    Section 990.001(4)(c) of the Wisconsin Statutes provides that, if the last day to perform certain acts with respect to a governmental entity falls on a Saturday, and the entity has no duly established official office hours on that Saturday, the last day for service is extended to the next day that is not a Sunday or legal holiday.

    The question before the appellate court was whether the Saturday-extension rule in section 990.001(4)(c) applies to the listed acts, including service on a governmental entity, regardless of whether the act is accomplished in person, by mail, or by some other means. “Unlike the circuit court and DPI, we conclude that the statute plainly does. We reject DPI’s view that, regardless whether the government entity to be served has official office hours, the statutory language conditions the Saturday extension rule on whether service can be accomplished on a Saturday. Accordingly, we conclude that the School District timely served its petitions on DPI” (¶ 3).

    Settlements – Payment Date – Interest

    Singler v. Zurich Am. Ins. Co., 2014 WI App 108 (filed 16 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The circuit court reasonably imposed a 30-day limit for payment of the settlement amount but erred in imposing a 12 percent interest rate instead of a rate of 5 percent per year.

    SUMMARY: On the eve of trial and following several failed attempts, the parties settled a personal injury lawsuit for $1.9 million. Plaintiff’s counsel sent a letter confirming the settlement on Jan. 18 and was told on Jan. 25 by insurer’s counsel that it would take “at least” one month to get the check authorized. At a hearing on Feb. 27, the settlement amount remained unpaid because the insurer (Zurich) and its insured (an Australian company) were still working through issues (for example, a $2 million self-insured retention). Eventually, the court ruled that payment was due within 30 days after the January 18 settlement and ordered Zurich to pay 12 percent interest from January 18 until March 27, when the settlement amount was finally paid (see ¶ 13). The interest charge came to more than $23,000.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Stark. First, Wis. Stat. section 628.46(1) did not control because it applies “where an insurer fails to pay an insurance claim within thirty days. Here, Zurich failed to pay a contractual settlement of an insurance claim within thirty days” (¶ 18). The statute’s limited sweep provides parties with flexibility in settling insurance claims (see ¶ 21). Nonetheless, the circuit court properly exercised its discretion in imposing a 30-day limit for payment of the settlement (see ¶ 22). A “reasonable time” is implied in any contract (see id.).

    Finally, the circuit court erred in assessing interest at a rate of 12 percent per year, an amount set forth in the Wis. Stat. section 628.46, which was not applicable. The correct rate of interest was five percent per year, as provided by Wis. Stat. section 138.04 (see ¶ 28).

    Criminal Procedure

    Unlawful Search – Trespass

    State v. Popp, 2014 WI App 100 (filed 30 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: Police officers violated the defendants’ Fourth Amendment rights by trespassing on their property and peering into their windows.

    SUMMARY: A law enforcement agency received an anonymous tip that certain residents of a trailer park were selling and producing drugs. After one resident denied consent to police officers to enter his trailer, the officers instead walked around the trailer and peered inside. The officers believed they saw incriminating evidence within the trailer, based on which a judge issued a search warrant. The defendants were charged with drug-related offenses. The circuit court denied their motion to suppress the evidence observed and found in the trailer.

    The court of appeals reversed in an opinion authored by Judge Curley. The police officers trespassed on the defendant’s property when they went up the trailer’s back steps and peered into its windows (see ¶ 20). The holding rests on two recent U.S. Supreme Court cases: Florida v. Jardines, 133 S. Ct. 1409 (2013), and United States v. Jones, 132 S. Ct. 945 (2012).

    Nor did the warrant attenuate the effects of the unlawful search (see ¶ 24). The court excised from the supporting affidavits the evidence obtained from the unlawful search; the balance of the affidavit did not give rise to probable cause for the search warrant (see ¶ 29). Nor could the state rely on the contents of an unverified anonymous phone call (see ¶ 30).

    Miranda Rights – Custody – Physical Evidence

    State v. Ezell, 2014 WI App 101 (filed 17 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The defendant’s incriminating statements should have been suppressed because of a Miranda violation, but physical evidence found on her person was lawfully seized and supports her conviction.

    SUMMARY: Prison guards detained the defendant while she was visiting her boyfriend in a correctional facility. She admitted that she was smuggling drugs to him. Drugs were found on her person. The circuit court denied the defendant’s motion to suppress, which was based on the guards’ failure to obtain a Miranda waiver before questioning her.

    The court of appeals affirmed in an opinion authored by Chief Judge Brown. The guards violated the defendant’s Miranda rights by not obtaining a waiver before questioning her. The main issue concerned whether she was in “custody” when questioned. The guards were law enforcement officers. “In these circumstances – having been requested by uniformed prison officers with handcuffs to move from a common area through a locked door into an interior, windowless room; being questioned about suspected crimes; and being told police are on the way – a reasonable person would consider herself to be in custody” (¶ 13).

    Despite the Miranda violation, physical evidence (drugs) found on the defendant’s person pursuant to a valid search supported her conviction. Wisconsin case law deviates from federal practice by suppressing physical evidence obtained in violation of Miranda, but only in situations in which the Miranda violation was “intentional.” The record here revealed no such intentional breach of Miranda (see ¶ 15).

    Unlawful Arrest – Detentions

    State v. Anker, 2014 WI App 107 (filed 16 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The defendant was arrested, not “detained,” by a warden, and the arrest was unlawful because it was not supported by probable cause.

    SUMMARY: Anker was arrested for sixth-offense operating while intoxicated (OWI) after he fled the scene of an accident. A conservation warden observed him walking out of a wooded area, barefoot, with a head wound. The warden arrested him. The circuit court ruled that probable cause supported the arrest.

    The court of appeals reversed in an opinion authored by Reserve Judge Cane. The key issue was whether the warden placed Anker under arrest or instead “detained” him as part of an investigation (see ¶ 15). The circuit court was “unassailably correct” in finding that Anker was under arrest: “Anker was ordered to stop, told he was under arrest, forcibly handcuffed, and taken to [the warden’s] vehicle to be given over to investigating authorities” (¶ 16).

    The court rebuffed the state’s “weak[]” arguments that Anker’s detention fell short of an arrest (see ¶ 18). “The State’s argument that the encounter was a valid Terry stop is without record support and contravenes state law” (¶ 24). The court of appeals remanded the case for hearings on whether the independent-source or inevitable-discovery doctrines apply.

    Statute of Limitation – Embezzlement – Discovery Rule

    State v. Simmelink, 2014 WI App 102 (filed 3 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: A special one-year clock in the statute of limitation applicable in embezzlement cases starts ticking when the aggrieved party discovers the loss – not when the victim should have, in the exercise of reasonable diligence, discovered the loss.

    SUMMARY: Prosecution for a felony generally must be commenced within six years after the commission of the crime. See Wis. Stat. § 939.74(1). Section 939.74(2)(b) creates an exception that allows for prosecution of certain misappropriation offenses beyond six years if the action is commenced “within one year after discovery of the loss by the aggrieved party” but no later than 11 years after commission of the offense.

    In this case, the defendant argued that the special one-year clock provided for in Wis. Stat. section 939.74(2)(b) starts ticking when the aggrieved party discovers the loss or with the exercise of reasonable diligence should have discovered the loss. In a decision authored by Judge Gundrum, the court of appeals concluded that “the one-year extension period in § 939.74(2)(b) begins to run only when the aggrieved party actually discovers the loss, not when it should have discovered the loss…” (¶ 7).

    Said the court, “we decline to rewrite Wis. Stat. § 939.74(2)(b) to add words or requirements which the legislature itself did not choose to include” (¶ 11).

    Sentence Credit – Time in Confinement Serving Unrelated Civil Commitment

    State v. Trepanier, 2014 WI App 105 (filed 16 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The defendant was entitled to sentence credit for time spent in pretrial custody on a felony charge even though he was simultaneously in custody serving a civil commitment on an unrelated matter.

    SUMMARY: Trepanier was charged with burglary, and he remained in pretrial custody unable to post cash bail on that charge for 171 days, at which point he was sentenced on the burglary. During 161 of the 171 days, he also was serving a civil commitment for failure to pay a fine in an unrelated case. The circuit court awarded the defendant 10 days’ sentence credit on the burglary sentence, but it concluded he was not entitled to credit for the 161 days during which he was unable to make cash bail on the burglary charge while he was also confined pursuant to the civil commitment order.

    In a decision authored by Judge Stark, the court of appeals reversed. It concluded that, even though Trepanier was in custody pursuant to the civil commitment order during the relevant 161 days, the custody was also in connection with the course of conduct for which the burglary sentence was imposed. Trepanier therefore was entitled to credit against the burglary sentence under the sentence-credit provisions of Wis. Stat. section 973.155(1)(a) (providing for credit “for all days spent in custody in connection with the course of conduct for which sentence was imposed”).

    Competency to Stand Trial – Postconviction Challenge to Competency

    State v. Smith, 2014 WI App 98 (filed 16 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The circuit court erred during postconviction proceedings when it found that the defendant was competent to proceed at the time of his trial and sentencing.

    SUMMARY: Smith was convicted by a jury of second-degree sexual assault and received a lengthy prison sentence. No challenge to his competency was raised during those proceedings. Postconviction counsel raised the issue of Smith’s competency to participate in postconviction proceedings; following hearings, the postconviction judge (not the same judge who presided over the trial and sentencing) determined that Smith was not competent to assist in postconviction proceedings and was unlikely to regain competence in a reasonable time.

    Postconviction counsel then filed a motion to vacate Smith’s conviction, arguing that Smith was not mentally competent at the time of his trial and sentencing. The postconviction judge denied the motion, finding that the individuals who interacted with the defendant at the time of trial and sentencing (that is, his trial counsel and the trial judge) did not raise competency concerns and that this was more persuasive evidence than the postconviction opinions of two mental health experts, who did not interview the defendant at the time of trial or sentencing but nonetheless concluded that the defendant was not competent at trial and sentencing.

    In a decision authored by Judge Kessler, the court of appeals reversed. It concluded that the record establishes a reason to doubt Smith’s competence at trial and sentencing (see ¶ 1).

    “[A]lthough there was no pretrial competency evaluation done and Smith did not testify at the postconviction hearing, two medical experts each provided evaluations, based on numerous historical and legal documents, concluding that Smith was incompetent at the time of his trial and sentencing. Nonetheless, the postconviction court concluded that Smith’s experienced [trial] counsel, and the judge who presided over both the trial and the sentencing, were in better positions to observe Smith. Because neither raised concerns, the postconviction court concluded that Smith, in fact, was competent both during trial and at sentencing. The postconviction court weighed more heavily the uninformed competence opinions of defense counsel and the trial court – who knew nothing of Smith’s extensive mental health history, the DOC records, the jail records [which documented ‘psychotic and bizarre behavior’ by Smith before and during trial] or the two experts’ opinions – and discounted the experts’ evaluations. In so doing, the postconviction court erred” (¶ 23).

    Accordingly, the court of appeals reversed the postconviction court and remanded this case for a new trial (see ¶ 26).

    Employment Law

    Wage Discrimination – Timeliness – Attorney Fees

    Rice Lake Harley Davidson v. LIRC, 2014 WI App 104 (filed 16 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: The petitioner’s wage- and sex-discrimination complaint was timely and supported by sufficient evidence, and she was entitled to attorney fees despite the reduced size of the award.

    SUMMARY: Mack worked at a Harley Davidson dealership from 2003 until her termination in 2009. She contended that the dealership paid her substantially less because she is a woman. An administrative law judge (ALJ) ruled that she had been discriminated against during a two-year period and also awarded her two-thirds of her attorney fees, reducing the award because she failed to recover her entire requested back pay. The Wisconsin Labor and Industry Review Commission (LIRC) affirmed the ALJ’s decision. The circuit court also affirmed.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Stark. First, the court held that Mack’s claim was timely. Applying due-weight deference (see ¶ 26), the court relied on case law that “is binding precedent and is directly on point” (¶ 34). It held that “compensation discrimination is actionable if an employee received payment within the 300-day period before filing his or her complaint pursuant to a discriminatory compensation decision. … If the employee received even one paycheck pursuant to the discriminatory compensation decision within 300 days before filing his or her complaint, the complaint is timely.” It is inconsequential whether the discrimination decision itself occurred within the 300-day period nor does it matter when the employee became aware of the discrimination (see ¶ 33).

    Second, the evidence supported LIRC’s finding of discrimination; this is necessarily a fact-intensive discussion.

    Third, Mack was entitled to attorney fees even though she received less than 10 percent of the award requested. Because Mack’s claim helps deter similar discrimination, the court rejected Harley’s contention that Mack’s attorney fees should be limited to the same percentage (see ¶¶ 63, 66).

    On cross-appeal, the court agreed with Mack that the circuit court erred by awarding her only two-thirds of her attorney fees for the work done by her lawyers in the circuit court. “The ALJ’s prior reduction in Mack’s attorney fees [by two-thirds] was not a valid basis to reduce the attorney fees Mack incurred in the circuit court proceedings” (¶ 68). The work done was reasonable (see ¶ 69).


    Injunctions – Adjournments

    Hill v. D.C., 2014 WI App 99 (filed 9 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: A temporary restraining order (TRO) in a harassment action can be extended only once for 14 days, not twice, on a finding that the respondent was not served with a copy of the TRO.

    SUMMARY: Hill petitioned the circuit court for a temporary restraining order against D.C. The circuit court granted the order, but the harassment injunction hearing was postponed twice because D.C. had not been served. The circuit court entered the injunction order on the third date.

    The court of appeals reversed in an opinion authored by Judge Brennan. The circuit court lost competency after the injunction hearing was adjourned for the second time. See Wis. Stat. § 813.125. Although the injunction hearing was held within the 14-day extension permitted by the statute, the legislature provided that the restraining order may be extended only once (see ¶ 8). By extending the order twice, the court lost competency to proceed (see ¶ 9).

    Public Records Law

    “Authorities” Subject to Public Records Law – Quasi-Governmental Corporations – Unincorporated Associations

    Wisconsin Professional Police Ass’n Inc. v. Wisconsin Counties Ass’n, 2014 WI App 106 (filed 18 Sept. 2014) (ordered published 29 Oct. 2014)

    HOLDING: An unincorporated association is not a “quasi-governmental corporation” within the meaning of Wisconsin’s public records law.

    SUMMARY: The Wisconsin Counties Association (the Association) is a nonprofit association. The plaintiffs sought records from the Association pursuant to Wisconsin’s public records law. The Association responded that the public records law does not apply to it. The plaintiffs filed suit seeking a declaration that the Association is subject to the law. The circuit court agreed with the Association and dismissed the plaintiffs’ complaint. In a decision authored by Judge Kloppenburg, the court of appeals affirmed.

    The public records law applies to persons and entities identified in the Wisconsin Statutes as “authorities.” See Wis. Stat. § 19.32(1). Within that statutory listing are “quasi-governmental corporation[s].” In this case, the plaintiffs contended that the Association was such an entity. The appellate court disagreed. It concluded that “the circuit court properly dismissed the [plaintiffs’] public records complaint because the Counties Association is not a corporation and, therefore, not an ‘authority’ by virtue of being a ‘quasi-governmental corporation’ under Wis. Stat. § 19.32(1)” (¶ 12).

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