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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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    Agreements – Trigger Dates

    First Weber Grp. Inc. v. Synergy Real Estate Grp. LLC, 2014 WI App 41 (filed 20 March 2014) (ordered published 30 April 2014)

    HOLDING: The circuit court properly ruled that a dispute was not subject to arbitration, and the circuit court did not err in selecting a trigger date for the time limitation.

    SUMMARY: This litigation involves a dispute over fees and costs stemming from an earlier arbitration of disputed fees among realtors. The circuit court ruled that this dispute about fees and costs was not subject to arbitration because it was filed after expiration of the 180-day limitation period in the arbitration agreement.

    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 affirmed in an opinion written by Judge Blanchard, which addressed two issues. First, the circuit court correctly ruled that this dispute was not subject to arbitration. “In sum, assuming without deciding that there is a construction of the agreement to arbitrate that would, on its face, require arbitration of the fees-and-costs dispute, Graham undertook in the agreement to arbitrate an obligation to arbitrate only those disputes initiated within 180 days of closings or of the discovery of disputes with reasonable diligence, whichever came later. Because First Weber failed to point to clear and unmistakable language in the agreement to arbitrate showing that this issue was to be resolved in the arbitration process, the circuit court properly addressed the question of whether the fees and costs dispute here was subject to arbitration in light of the 180-day time limitation” (¶ 48).

    Second, the circuit court chose the correct trigger for the 180-day time limit, namely, a letter in which one party refused to pay any fees. It did not matter that those costs and fees had not yet been submitted because the arbitration agreement did not “by its terms call for a to-the-penny accounting of an arbitrable matter” (¶ 53). The trial judge “expressed no doubt or confusion” about what the parties were “seeking” and “resisting” (id.).

    Criminal Procedure

    Strip Searches – Suppression

    State v. Minett, 2014 WI App 40 (filed 19 March 2014) (ordered published 30 April 2014)

    HOLDING: Suppression of evidence is not an appropriate remedy for the violations of the statute governing strip searches that the defendant alleged.

    SUMMARY: Minett was charged with a drug-related offense. He brought a motion to suppress evidence, on grounds that he was subjected to an unlawful strip search. The circuit court denied the motion, and Minett was convicted. In a decision authored by Chief Judge Brown, the court of appeals affirmed.

    Minett argued that police officers violated several provisions of Wis. Stat. section 968.255, which governs strip searches. The alleged infractions included a lack of a written authorization, the failure to give Minett a copy of a required report, and the absence of a proper “witness” (¶ 6).

    The court held that suppression of evidence is not a remedy for the alleged statutory violations. First, the statute enumerates a variety of civil and criminal remedies for infractions other than suppression. Second, suppression would not be “germane” to the statute’s objectives.

    “This is a regulatory statute aimed at controlling law enforcement officers’ conduct via criminal penalties. It does not mention probable cause and authorizes no motions to quash or limit the search. So, while, in other cases, a suppression motion might be an appropriate remedy for a violation of the law that took place during a strip search – if, for instance, there was no probable cause for the search – where, as here, there was concededly no violation of any constitutional right but merely of the statute itself, the violation of the statute provides no basis for a suppression motion (¶ 10).

    Unlawful Search – “Security Adjustment”

    State v. Gordon, 2014 WI App 44 (filed 18 March 2014) (ordered published 30 April 2014)

    HOLDING: Because police officers unlawfully searched the defendant, the evidence (a gun and drugs) should have been suppressed.

    SUMMARY: Police officers stopped and searched the defendant as he walked down the street. The defendant had allegedly made a “security adjustment,” a gesture that, the officers claimed, indicated he might be carrying a gun. The circuit court denied the defendant’s motion to suppress drugs and a gun found during a search of his person. He then pleaded guilty.

    The court of appeals reversed in an opinion written by Judge Fine. The court said that the officers lacked an objectively reasonable belief that the defendant was armed (see ¶ 9). The circuit court relied on three factors: 1) the defendant was in a “high-crime area”; 2) he “recognized the presence of police”; and 3) he “patted the outside of his pants pocket” (¶ 14).

    These three factors did not add up to reasonable suspicion, individually or collectively. First, the defendant’s presence in a “high-crime area” added nothing to the calculus of reasonable suspicion, the court observing that “sadly, many, many folks, innocent of any crime, are by circumstances forced to live in areas that are not safe” (¶ 15). Second, a recognition of “police presence” is present in every Terry-stop case (¶ 16).

    Third, the “security adjustment” – essentially, a person patting his or her clothing – was not dispositive. “Permitting Terry stops of persons momentarily patting the outside of their clothing when the only additional facts are that those persons are in a high crime area and have seen a cruising police car would expand the individualized ‘reasonable suspicion’ requirement so far so as to negate it” (¶ 18).

    Revocation of Parole – Application of Presentence Credit

    State v. Obriecht, 2014 WI App 42 (filed 27 March 2014) (ordered published 30 April 2014)

    HOLDING: The Department of Corrections correctly applied the defendant’s presentence credit to the total time remaining on his sentence following revocation of parole rather than to the amount of reincarceration time ordered upon revocation.

    SUMMARY: Defendant Obriecht was sentenced under Wisconsin’s old indeterminate-sentencing law. He was paroled from prison in 2011. Later that year he violated the conditions of parole, and his parole was revoked. The Division of Hearings and Appeals (DHA) ordered that he be returned to prison for what the appellate court assumed was a fixed period of time shorter than the total time remaining on his sentence.

    The defendant filed a sentence-credit motion in which he argued that he was entitled to 107 days of presentence credit for time he spent in custody more than a decade earlier. The circuit court granted the motion and amended the underlying judgment of conviction to reflect 107 days of credit. The Department of Corrections (DOC) interpreted the amended judgment to reduce by 107 days the period of parole remaining after the defendant serves the reincarceration term ordered by the DHA; the DOC declined to reduce the reincarceration term by 107 days as the defendant sought. The circuit court concluded that the DOC properly interpreted the law in this regard.

    In a decision authored by Judge Kloppenburg, the court of appeals affirmed. Said the court, “the plain language of Wis. Stat. § 302.11(7)(am) and (b) requires that DOC apply Obriecht’s sentence credit to the remaining period of parole, rather than to the term of reincarceration ordered by DHA” (¶ 10).

    Sentencing – Ex Post Facto Challenge to Law Repealing Positive-Adjustment-Time Statutes

    State ex rel. Singh v. Kemper, 2014 WI App 43 (filed 26 March 2014) (ordered published 30 April 2014)

    HOLDING: The ex post facto clause was violated by denying the defendant a “positive-adjustment-time” (PAT) sentence reduction for crimes committed or for which the defendant was convicted and sentenced while the early release provision for PAT was in effect and before repeal of the PAT law.

    SUMMARY: In 2009, as part of its biennial budget bill (2009 Wis. Act 28), the Wisconsin Legislature enacted a statutory scheme that afforded prisoners various opportunities for early release, effective Oct. 1, 2009. This included early release after accumulation of PAT. Two years later, the legislature enacted 2011 Wisconsin Act 38, which repealed or modified the early-release provisions established in the 2009 act, effective Aug. 3, 2011.

    In 2010, defendant Singh was convicted of and sentenced for obtaining, in 2008, a controlled substance by fraud, a Class H felony. He was placed on three years’ probation with a three-year bifurcated sentence imposed and stayed. In July 2011, he committed another violation of the same statutory provision, for which he was convicted in November 2011. Singh’s probation on his first offense was revoked on Dec. 13, 2011, and two weeks later Singh was sentenced to a five-year bifurcated sentence on his second offense, to be served consecutively to his first-offense sentence. Singh’s first day in prison was Jan. 4, 2012; before that date, he had spent months in jail.

    On arrival in prison in 2012, Singh sought early release pursuant to the PAT provisions of the 2009 act. The Department of Corrections (DOC) declined to process the request, determining that with the enactment of the 2011 act, Singh was not eligible for early release. Singh petitioned the circuit court for a writ of habeas corpus, arguing that the retroactive application of the 2011 act to deny him PAT violates the ex post facto clauses of the U.S. and Wisconsin Constitutions. The circuit court denied the writ. Singh appealed.

    Singh was convicted and sentenced on his first offense and he committed his second offense when the early-release provisions of the 2009 act were in effect. The elimination of early release under the terms of the 2011 act results in a significant risk that Singh’s period of incarceration will be prolonged. Accordingly, in a decision authored by Judge Gundrum, the court of appeals held that “the portions of the 2011 act which eliminate Singh’s eligibility for early release under the 2009 act violate the ex post facto clauses when applied to these offenses” (¶ 10).

    The appellate court also concluded that the defendant was only eligible for PAT for days spent in prison. It rejected his argument that one can earn PAT for time spent in the county jail before arriving at prison. Said the court, “The plain reading of Wis. Stat. §§ 302.113(2)(b) and 304.06(bg)1. (2009-10) leads to the conclusion that only days actually spent in a prison are eligible for PAT consideration” (¶ 28).

    Motor Vehicle Law

    OWI – Counting Prior Convictions – Prior Illinois Suspension for Violating Illinois “Zero-Tolerance” Law

    State v. Hirsch, 2014 WI App 39 (filed 12 March 2014) (ordered published 30 April 2014)

    HOLDING: Counting suspensions for violations of the Illinois zero-tolerance law for purposes of enhanced operating-while-intoxicated (OWI) penalties in Wisconsin does not violate the Equal Protection Clause.

    SUMMARY: Wisconsin has an accelerated-penalty structure for OWI offenses such that each successive OWI conviction results in more severe penalties. Defendant Hirsch appealed from a judgment of conviction for OWI (sixth offense) and an order denying postconviction relief. He argued that Wis. Stat. section 343.307(1)(d), which defines the out-of-state OWI-related convictions that count as prior offenses for sentence-enhancement purposes, violates the Equal Protection Clause of the U.S. Constitution because his Illinois zero-tolerance suspensions count whereas Wisconsin absolute-sobriety violations would not. The two statutes are substantively identical.

    In a decision authored by Judge Neubauer, the court of appeals affirmed. Applying a rational basis standard to the defendant’s equal protection challenge, the court agreed with the state that “§ 343.307(1)(d)’s statutory inclusion of out-of-state convictions under a law that prohibits driving ‘with an excess or specified range of alcohol concentration’ does not violate the Equal Protection Clause, even if a consequence is to treat Illinois’ zero tolerance offenses differently than Wisconsin absolute sobriety offenses” (¶ 9).

    In 1989, the Wisconsin Legislature removed the requirement that out-of-state statutes be “in conformity” with Wisconsin law for violations of the out-of-state statutes to be counted for purposes of enhancing the sentences of repeat OWI offenders.

    Said the court, “[t]here is a rational basis for the legislative determination to dispense with the required conformity with Wisconsin law. Our legislature has control over Wisconsin’s absolute sobriety law, and it has defined the drinking age, the amount of alcohol that can be involved, and how the offenses are treated by courts and prosecutors. Our legislature has no such authority over out-of-state offenses. Our trial courts and bar are familiar with our absolute sobriety law, when it applies, how it is enforced, and how its penalties are administered. It was reasonable to eliminate the conformity requirement between Wisconsin offenses and the countless other variations of these types of offenses, when our legislature has no authority over how they are defined and applied by prosecutors and the courts, much less how other jurisdictions might redefine or apply such offenses over time. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. And, counting all such convictions serves the public good because an exception could lead to undercounting offenses that are defined or applied differently” (¶ 10).

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