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    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.

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

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    Civil Procedure

    Notice of Claim – Time of the Event

    Mayo v. Boyd, 2014 WI App 37 (filed 4 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: The notice-of-claims statute, Wis. Stat. section 893.82(2), requires that claimants set forth “the time” of the event only when the exact time can be reasonably determined.

    SUMMARY: Mayo and Hayslett were passengers in a state-owned van driven by Boyd, a state employee. Boyd allegedly failed to require that the passengers use their seatbelts. Mayo and Hayslett were injured when Boyd lost control of the van, which overturned and rolled several times. They filed a notice of claim as required by Wis. Stat. section 893.82(3). The circuit court dismissed the suit because the notice of claim did not include the time of the events.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The court of appeals reversed in an opinion authored by Judge Brennan. “The sole issue before us on appeal is whether the circuit court properly dismissed Mayo and Hayslett’s complaint for allegedly failing to comply with Wis. Stat. § 893.82(3)’s requirement that a plaintiff’s notice of claim include ‘the time … of the event giving rise to the claim’” (¶ 7).

    Mayo’s and Hayslett’s claims did not “arise from a singular event occurring at a fixed moment in time. Rather, their claims against Boyd are based on numerous events that transpired over a duration of time, beginning when they got into the van and were not required or told to wear seat belts, continuing as they travelled down the road to their destination, and finally ending when the van overturned causing their injuries” (¶ 10). It was “unreasonable” to require Mayo and Hayslett to set forth an “exact moment” (id.).

    In so holding, the court rebuffed the notion that an “approximate time” sufficed. The statute requires a precise time when one can reasonably be determined. “To be clear, our holding today does not conflict with Wis. Stat. § 893.82(2m)’s requirement that plaintiffs strictly comply with the notice requirements set forth in § 893.82(3). … Rather, we conclude that § 893.82(3)’s time-of-the-event requirement only requires a plaintiff to include the time of the event giving rise to a claim when it is possible to do so. To require otherwise essentially bars recovery for plaintiffs with claims that are not set in a single moment in time and creates an absurd result” (¶ 13).

    Concealed-Carry Law

    Denial of License to Carry Concealed Weapon – Conviction of Misdemeanor Crime of Domestic Violence

    Evans v. Wisconsin Dep’t of Justice, 2014 WI App 31 (filed 27 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: The Wisconsin Department of Justice (DOJ) properly denied the petitioner’s application for a concealed-carry license on the basis of a prior misdemeanor crime of domestic violence.

    SUMMARY: Evans appealed the circuit court’s order upholding the DOJ’s decision to deny his application for a license to carry a concealed weapon. The denial was based on the DOJ’s conclusion that Evans’ 2002 conviction for disorderly conduct was a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A) (see ¶ 2).

    As pertinent here, 18 U.S.C. § 921(a)(33)(A) requires that the qualifying crime have, “as an element,” the use of physical force. It also requires that the crime be committed by a person who has at least one of several specified relationships with the victim. The specified relationships include that of a person “similarly situated to a … parent … of the victim.” 18 U.S.C. § 921(a)(33)(A)(ii).

    Wisconsin’s disorderly conduct statute provides that “[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor” (emphasis added).

    Evans was convicted in 2002 on a charge of disorderly conduct that was alleged in the complaint to have involved “violent, abusive and otherwise disorderly conduct.” “Because ‘violent’ conduct necessarily implies the use of physical force, [the court of appeals in a decision authored by Judge Lundsten] conclude[d] that Evans’ conviction for disorderly conduct has the use of physical force as an element” (¶ 12).

    The court was not confronted with determining whether Evans’ disorderly conduct conviction would have satisfied the physical force requirement had he been charged with engaging in “violent, abusive or otherwise disorderly conduct” (which would have tracked the language of the statute) (¶ 20).

    The appellate court further concluded that Evans’ 2002 disorderly conduct conviction contained the element of having been committed by a person who has a specified domestic relationship with the victim (see ¶ 26). The victim was Evans’ stepdaughter. The court concluded that a stepparent is “similarly situated to a parent of the victim” as required by the federal statute quoted above (see ¶ 30).

    Accordingly, the court of appeals affirmed the circuit court’s order upholding the DOJ’s decision to deny Evans’ application for a license to carry a concealed weapon.

    Criminal Procedure

    Warrantless Blood Draw – Absence of Exigent Circumstances – Good-Faith Exception to Exclusionary Rule Applied

    State v. Reese, 2014 WI App 27 (filed 20 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: The good-faith exception to the exclusionary rule applied to results of a warrantless blood test obtained after the defendant’s operating while intoxicated (OWI) arrest, despite the absence of exigent circumstances.

    SUMMARY: Among the issues on appeal in this case was whether the results of a blood test obtained in a warrantless blood draw following Reese’s criminal OWI arrest should have been suppressed. Reese argued that suppression was warranted under the U.S. Supreme Court’s recent opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013), because there were no exigent circumstances that would have justified a warrantless blood draw. The blood draw in this case occurred before release of the McNeely decision.

    In a decision authored by Judge Sherman, the court of appeals concluded that suppression of the blood test evidence was not warranted. Although the warrantless search violated the Fourth Amendment as interpreted in McNeely because of the absence of exigent circumstances, the court determined that, under the good-faith exception, the exclusionary rule should not be enforced. The good-faith exception is applied “when the officers conducting an illegal search acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment and if the exclusion would not deter future unlawful police conduct” (¶ 21) (internal quotations and citations omitted).

    In this case “the police officer … was following the ‘clear and settled precedent’ when he obtained a blood draw of Reese without a warrant. The deterrent effect on officer misconduct, which our supreme court characterized as ‘the most important factor’ in determining whether to apply the good faith exception, would … be nonexistent in this case because the officer did not and could not have known at the time that he was violating the Fourth Amendment. At the time of the blood draw the officer was following clear, well-settled precedent established by the Wisconsin Supreme Court, which the court has stated ‘is exactly what officers should do.’ Accordingly, because the officer reasonably relied on clear and settled Wisconsin Supreme Court precedent in obtaining the warrantless blood draw and because exclusion in this case would have no deterrent effect, we conclude that the blood draw evidence should not be suppressed” (¶ 22) (internal quotations and citations omitted).

    Sentencing – Bifurcated Prison Sentences for Enhanced Misdemeanors

    State v. Lasanske, 2014 WI App 26 (filed 26 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: For purposes of bifurcating the prison sentence of a defendant convicted of an enhanced misdemeanor, the confinement portion of the sentence may not exceed 75 percent of the total length of the sentence and the extended supervision term may not be less than 25 percent of the length of the confinement portion.

    SUMMARY: With very few exceptions, whenever a court sentences a person to “imprisonment in the Wisconsin state prisons” for a felony or a misdemeanor, the court must impose a bifurcated sentence – which consists of a period of confinement in prison followed by a term of extended supervision.

    Here the court of appeals tackled the issue of how to bifurcate a prison sentence for a defendant convicted of a misdemeanor who faces a prison sentence because of the application of a penalty enhancer. The defendant was convicted of two misdemeanors, each carrying a maximum penalty of nine months’ imprisonment; however, because he was a habitual offender, each sentence could be “increased to not more than 2 years.” See Wis. Stat. § 939.62(1)(a).

    In a decision authored by Chief Judge Brown, the court of appeals concluded that “[d]etermining the bifurcated structure of a misdemeanor begins under Wis. Stat. § 973.01(2)(a) with the applicable maximum term of imprisonment for the misdemeanor, plus additional imprisonment authorized by any applicable penalty enhancement statute. The confinement portion ‘may not exceed 75% of the total length of the bifurcated sentence.’ Sec. 973.01(2)(b)10. The extended supervision portion ‘may not be less than 25% of the length of the term of confinement in prison imposed under par. (b).’ Sec. 973.01(d)” (¶ 9).

    The defendant was subject to up to two years’ imprisonment on each count to which he pleaded guilty. Because the court determined that he should be sentenced to prison, his sentence had to be bifurcated, with no more than 75 percent of the total length of the bifurcated sentence as confinement and no less than 25 percent of the length of the confinement as extended supervision (see ¶ 12).

    The actual sentence the court imposed was 12 months’ confinement followed by 12 months’ extended supervision on each count with the sentences to be served consecutively. The sentences thus complied with the enhanced-misdemeanor bifurcation rules articulated in this decision.

    Expungement of Conviction – Procedures for Implementing Expungement Order

    State v. Hemp, 2014 WI App 34 (filed 4 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: Expungement is not self-executing on completion of sentence; it is the defendant’s responsibility to petition the court for expungement within a reasonable time (that is, as soon as practicable) following the issuance of a discharge certificate.

    SUMMARY: Hemp was convicted in 2009 of possession of THC with intent to deliver. The circuit court placed him on probation and stated that the conviction could be expunged after Hemp successfully completed probation. Approximately one year after he was discharged from probation and after he had been charged with several new crimes allegedly committed after the discharge, Hemp petitioned the circuit court for expungement of the 2009 conviction.

    The circuit court denied the petition, taking into consideration that Hemp’s desire for expungement “did not ripen until he was charged with new offenses” and that he was tardy in seeking expungement (¶ 5). The circuit court characterized the petition as effectively asking the court to ignore Hemp’s recent behavior and to assist him in the defense of his new charges by ordering an expungement of the old charge (see ¶ 16).

    In a decision authored by Judge Kessler, the court of appeals affirmed. Pursuant to Wis. Stat. section 973.015(2), a defendant is not entitled to expungement of his or her record unless “(1) he [or she] successfully completes his sentence; (2) the controlling authority issues a certificate of discharge; and (3) that certificate is forwarded to the circuit court. All three of these steps must be completed before a record will be expunged. The successful completion of probation was only the first step Hemp needed to complete. Therefore, Hemp’s record was not immediately expunged upon completion of his sentence” (¶ 9).

    The court further concluded that it is the defendant’s responsibility to provide the court with his or her discharge certificate (see ¶ 13), and that this must be done “within a reasonable time following the issuance of a discharge certificate. We conclude that § 973.015 requires a petitioner to forward his discharge certificate as soon practicable” (¶ 15).

    In this case, the circuit court properly found Hemp’s petition to be untimely (see ¶ 16). Moreover, “[t]he circuit court … properly exercised its sentencing discretion by noting the relevance of Hemp’s new criminal charges, which had proceeded through a probable cause finding, and denied his request for expungement” (id.).


    Confrontation – Lab Tests – Unavailable Analyst

    State v. Griep, 2014 WI App 25 (filed 19 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: Controlling case law permitted a laboratory supervisor to testify in the place of the unavailable lab analyst who actually performed the blood-alcohol concentration (BAC) test.

    SUMMARY: Griep was arrested for operating a vehicle while intoxicated. A sample of his blood was sent to a laboratory, which reported his BAC as 0.152. The analyst who tested Griep’s blood was unavailable to testify at the trial, so the state introduced testimony by a lab supervisor who lacked personal knowledge of the testing in this case but who testified to the lab’s protocols and his opinion that proper tests had been conducted in this instance. Griep objected on grounds of denial of his confrontation rights. The circuit court denied his objections, and Griep was convicted. He then appealed the conviction.

    The court of appeals reluctantly affirmed in an opinion written by Chief Judge Brown. The opinion opens with a frank acknowledgment that this case “raises a recurring and unsettled question of law: … [namely,] may the State submit evidence of a driver’s blood alcohol level at trial when the analyst who did the actual testing is unavailable to testify?” (¶ 1). Although “the law is not clear,” the court affirmed based on Wisconsin case law that was recently cited and discussed by the Wisconsin Supreme Court and is “binding state court precedent” (¶ 3).

    The opinion features a gloomy triptych of federal case law that has engendered considerable confusion and uncertainty. Recently, though, the Wisconsin Supreme Court favorably cited an older case, State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, that concerned analogous facts.

    “Under the reasoning of Barton, the availability of a well qualified expert, testifying as to his independent conclusion about the ethanol testing of Griep’s blood as evidenced by a report from another state lab analyst, was sufficient to protect Griep’s right to confrontation. No binding federal precedent clearly overrules Barton” (¶ 22). The court of appeals closed by observing that the U.S. Supreme Court might grant certiorari in a similar Seventh Circuit case, “[s]o, a definitive answer may be on the horizon” (¶ 23).

    Expert Testimony – Bases – Confrontation

    State v. Heine, 2014 WI App 32 (filed 22 Jan. 2014) (ordered published 26 March 2014)

    HOLDING: No reversible error occurred when the state’s expert reasonably relied on a toxicology report in forming his opinion about the victim’s cause of death.

    SUMMARY: Heine was charged with reckless homicide for having supplied heroin that killed an individual (the victim). At trial, the state introduced a toxicology report revealing the presence of heroin in the victim’s body. Although three employees of the toxicology laboratory testified, none of them had “any hands-on testing duties” (¶ 3). The medical examiner, a physician, relied on the report when forming his opinion that the victim died of a heroin overdose.

    The court of appeals affirmed in an opinion written by Judge Fine. The court applied the 2011 revisions to Wis. Stat. sections 907.02 and 907.03 (see ¶ 5). Relying on federal case law construing the parallel federal rules, the court distinguished an expert’s reliance on inadmissible data from the separate issue of whether that same information should be disclosed to the jury (see ¶ 12).

    The confrontation right also qualifies the reliance and disclosure options, but the case law is manifestly unsettled and confused. Assuming without deciding that it was error to “admit” the toxicology report into evidence under controlling confrontation case law, the court held that such error was harmless (see ¶ 14).

    “It was perfectly reasonable and consistent with both Wis. Stat. Rule 907.03 and Heine’s right to confront his accusers, for Dr. Tranchida to take into account the toxicology report in firming up his opinion as to why the victim died. Heine was fully able to confront Dr. Tranchida and challenge his opinion and his supporting reasons. … Heine was not deprived of his right to confrontation, and the trial court’s receipt of the toxicology report into evidence was harmless beyond a reasonable doubt because, as we have already noted, Dr. Tranchida could have given his opinion exactly as he gave it without referring to the report” (¶ 15).


    Legal Malpractice – Claims-Made Policies – Untimely Notice – Prejudice

    Anderson v. Aul, 2014 WI App 30 (filed 19 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: Although a legal malpractice carrier did not receive timely notice under a claims-made policy, the absence of any prejudice defeated the insurer’s motion for summary judgment.

    SUMMARY: Attorney Aul represented the Andersons in a real estate matter. In December 2009, the Andersons hired a different lawyer, who demanded that Aul pay the Andersons more than $100,000 because of their dissatisfaction with his legal services. Aul hired counsel, but it was not until March 9, 2011, that Aul advised his legal malpractice carrier, Wisconsin Lawyers Mutual Insurance Co. (WILMIC), of the Andersons’ letter. This was approximately 11 months after the end of the April 2009 to April 2010 policy period. The Andersons sued Aul in March 2012. WILMIC intervened, moved for summary judgment, and was dismissed because Aul had failed to provide timely notice under his claims-made policy.

    The court of appeals reversed in an opinion authored by Judge Neubauer. Aul’s 2009-10 policy with WILMIC is a “claims made and reported policy” (¶ 6). The Andersons conceded that Aul’s notice to WILMIC was untimely and that they bear the burden of persuasion, but argued that the circuit court erred by not considering whether the late notice prejudiced the insurer (see ¶ 9). Case law “belied” WILMIC’s contention that prejudice need not be shown (¶ 12).

    “WILMIC makes no argument that its ability to investigate, evaluate and defend this claim was impaired by Aul’s late notice. Furthermore, WILMIC did not dispute below, and does not contest on appeal, Aul’s assertion that ‘formal discovery had not yet started, no depositions were taken, and no deadlines were approaching denying WILMIC adequate time to investigate and defend the claim’” (¶ 14). The “undisputed facts establish that WILMIC was not prejudiced by Aul’s untimely notice of the Andersons’ claims” (¶ 16).

    Excess Policy – Illusory Coverage

    Hernandez v. Liberty Mut. Ins. Co., 2014 WI App 36 (filed 28 Jan. 2014) (ordered published 26 March 2014)

    HOLDING: An insurer’s interpretation of its other-insurance clause rendered a policy’s excess coverage illusory; hence, the clause was invalid.

    SUMMARY: The plaintiff was seriously injured when his motorcycle was struck by a “Zipcar” insured by Liberty Mutual. Liberty paid the $300,000 limits under its liability coverage but denied coverage under an excess policy based on the wording of its other-insurance clause. The circuit court found that Liberty’s construction of that clause rendered the excess coverage illusory, rendering the clause invalid.

    The court of appeals affirmed in an opinion written by Judge Brennan. “The issue before this court is whether Liberty’s interpretation of the Other-Insurance Clause – that the underlying Liability Policy can trigger the clause’s “other valid and collectible insurance” provision – creates coverage under the Wisconsin Endorsement that is illusory. We conclude that it does and affirm” (¶ 15).

    The opinion closely parses pertinent statutes and applicable policy language. The court concluded as follows: “In short, Liberty cannot: (1) require Zipcar to maintain the Liability Policy to receive coverage under the Excess Policy; (2) grant all permissive users coverage in the Wisconsin Endorsement; and then (3) exclude all those same permissive users from coverage based upon coverage under the Liability Policy pursuant to the Other-Insurance Clause. To do so, in this instance, violates Wis. Stat. § 632.32(5)(c) and renders the Wisconsin Endorsement illusory” (¶ 27). The court “reformed” the policy to provide coverage.

    Judge Fine dissented, contending that the various clauses did not render coverage illusory (see ¶ 32). The majority’s response to the dissent appears at paragraph 26.

    Municipal Law

    Extraterritorial-Plat-Approval Authority – Restrictions on Land Use

    Lake Delavan Prop. LLC v. City of Delavan, 2014 WI App 35 (filed 12 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: The city of Delavan acted outside its jurisdiction by using its extraterritorial-plat-approval power to deny a proposed plat based on land use.

    SUMMARY: In 2004 and 2006, Lake Delavan Property Co. LLC (the company) purchased land in the town of Delavan in Walworth County, with the intention of subdividing the land and building approximately 600 single-family homes. Although the land is in the town, it is within the city’s extraterritorial-plat-approval jurisdiction, which extends to land within one and one-half miles of the city’s limits. It is undisputed that, at the time of purchase, the land was zoned residential by Walworth County. The town’s and county’s long-range plans designated the area as “urban density residential (less than 5.0 acres per dwelling).”

    In 2011, the city amended its subdivision ordinance to restrict land division within its extraterritorial jurisdiction to a density of no more than one lot per 35 acres and a minimum lot size of one acre. In 2012, the company submitted a preliminary subdivision plat for development of the land for the city’s approval. The city denied approval. The company sought certiorari review and a reversal of the city’s decision; the circuit court granted judgment in favor of the company, reversing the city’s decision to deny approval of the plat. In a decision authored by Judge Neubauer, the court of appeals affirmed.

    A municipality may exercise some control over the regulation of land outside its own geographical border. First, Wis. Stat. section 236.10(1)(b) authorizes a municipality to exercise extraterritorial-plat-approval authority as set forth in Wis. Stat. section 236.45, which addresses local subdivision regulation. For small cities, such as Delavan, this authority extends to land within one and one-half miles adjacent to their boundaries.

    Second, Wis. Stat. section 62.23(7a) establishes a procedure for a city and neighboring towns to work cooperatively to accomplish extraterritorial zoning within the city’s extraterritorial zoning jurisdiction, which, for small cities, extends for one and one-half miles adjacent to the city’s boundaries. The extraterritorial zoning must be done by a joint committee comprised of members from both the city and each of the affected neighboring towns (see ¶ 7).

    Under the provisions of Wis. Stat. section 236.45(3)(b), “a city may not (1) deny approval of a plat (2) on the basis of the proposed land use (3) within the extraterritorial plat approval jurisdiction (4) unless the denial is based on zoning regulations passed cooperatively with neighboring towns” (¶ 11).

    In this case, the court concluded that “[t]he City’s thirty-five-acre density restriction is an improper use of its extraterritorial plat approval authority to rezone land over which it has no independent zoning authority. While the City has the authority to review extraterritorial subdivision plats, it cannot use this authority to impose land use restrictions. The City can only impose extraterritorial land use restrictions under its extraterritorial zoning authority, which must be exercised in conjunction with neighboring towns. See Wis. Stat.§ 62.23(7a). Here, the City improperly used its extraterritorial plat approval authority to supersede the residential zoning that was in place” (¶ 12).

    “The City’s ordinance purports to be a permissible land division restriction on extraterritorial plats, but in effect it is extraterritorial zoning, which the City may not accomplish independent of the Town of Delavan” (¶ 1).

    Sexually Violent Persons

    Discharge Hearings – New Research

    State v. Richard, 2014 WI App 28 (filed 19 Feb. 2014) (ordered published 26 March 2014)

    HOLDING: New research on the interpretation and scoring of risk assessments for sex offenders supported the petitioner’s request for a discharge hearing.

    SUMMARY: Richard’s long history of sexual assaults, dating to the 1970s, resulted in his commitment under Wis. Stat. chapter 980 as a sexually violent person. The circuit court denied his petition for a discharge hearing on grounds that he had not presented “new research” pointing to a different outcome.

    The court of appeals reversed in an opinion written by Judge Mangerson. “We conclude that when a petitioner alleges that he or she is no longer a sexually violent person, and supports his or her petition with a recent psychological evaluation applying new professional research to conclude that the petitioner is no longer likely to commit acts of sexual violence, the petitioner is entitled to a discharge hearing under Wis. Stat. § 980.09” (¶ 1).

    The court canvassed the new research and competing policy imperatives. The court said that the concern for finality supports the rule “that an expert opinion based solely on facts or professional knowledge or research considered by the experts who testified at the commitment trial is insufficient to warrant a discharge hearing” (¶ 16).

    But this was not the situation here. “To summarize, a petition alleging a change in a sexually violent person’s status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research” (¶ 20). The court discussed some of this new research in considerable detail, rejecting on various grounds the state’s contention that the research did not support a discharge hearing.

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