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    Wisconsin Lawyer
    November 01, 2015

    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 D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Sentence Credit – Good Time – Revocation of Probation

    State ex rel. Baade v. Hayes, 2015 WI App 71 (filed 26 Aug. 2015) (ordered published 30 Sept. 2015)

    HOLDING: The defendant was not entitled to have the good time he earned while serving time in the county jail as a condition of probation applied as a sentence credit to his confinement time when he went to prison after probation was revoked.

    SUMMARY: Defendant Baade received a four-year prison sentence (two years’ confinement followed by two years’ extended supervision) after being convicted of a crime. The circuit court stayed the prison sentence and placed Baade on probation for three years with the condition that he serve one year in the county jail. He was released from jail after serving nine months (early release occurring because county jail inmates earn good time in the amount of one-fourth of their term). Baade failed to comply with the rules of probation, his probation was revoked, and he was sent to prison.

    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 Division of Hearings and Appeals (DHA) awarded Baade nine months’ sentence credit against his two years’ confinement time. Baade argued in a petition for certiorari to the circuit court that he was also entitled to the three months of “good time” he earned while on probation as a credit against his prison sentence. The circuit court agreed with Baade, and the DHA appealed.

    In a decision authored by Judge Reilly, the court of appeals reversed. Wisconsin Statutes section 973.155(4) provides that “inmates ... serving sentences of one year or less and confined in a county jail, house of correction or county reforestation camp” are entitled to sentence credit for “earned good time.”

    The appellate court concluded that “§ 973.155(4) is not applicable to Baade as Baade had a sentence of more than one year, and therefore, he is not entitled to the good time earned during his failed probationary period to be applied as sentence credit to his confinement time in prison” (¶ 4). “To give Baade sentence credit of ninety days for time he never spent in confinement is contrary to the very basis of this state’s truth-in-
    sentencing legislation” (¶ 10).


    Local Regulation of Firearms – Wis. Stat. section 66.0409

    Wisconsin Carry Inc. v. City of Madison, 2015 WI App 74 (filed 6 Aug. 2015) (ordered published 30 Sept. 2015)

    HOLDING: A local agency’s rule prohibiting a person from traveling on a city bus with a weapon was not preempted by Wis. Stat. section 66.0409 (Local Regulation of Firearms).

    SUMMARY: This case involves the validity of a rule adopted by the city of Madison’s Transit and Parking Commission that prohibits a person from traveling in a city bus with a weapon (hereinafter the bus rule). Wisconsin Carry Inc. (a self-described “gun rights organization”) brought suit asking the circuit court to declare that the bus rule is preempted by Wis. Stat. section 66.0409.

    This statute provides that “[with exceptions not relevant here], no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.” The statute defines political subdivision as a “city, village, town or county.” See Wis. Stat. § 66.0409(1)(b).

    The circuit court declined to issue the requested declaration, concluding that section 66.0409 limits preemption to municipal “ordinances” and “resolutions” enacted or adopted by a “city, village, town or county,” and that the bus rule here (a municipal agency rule) does not fit within these legislatively specified words. In a decision authored by Judge Lundsten, the court of appeals affirmed.

    The precise preemption issue addressed by the appellate court was whether Wis. Stat. section 66.0409 preempts a municipal agency rule (see ¶ 6). “Applying the language of Wis. Stat. § 66.0409 as written, we agree with the circuit court and the City that the statute plainly preempts only ‘ordinances’ and ‘resolutions.’ And, we agree, it is clear that the bus rule is not an ‘ordinance’ or ‘resolution’ under case law providing generally accepted meanings for those terms…” (¶ 8).

    The court noted that it would have been a simple matter for the legislature to use language that clearly prohibits local-agency regulation of firearms by including additional language or more expansive language in the pertinent statute as some other states have done (see ¶ 11). Instead, the Wisconsin legislature “chose limited language that does not cover the bus rule” (¶ 13).

    Municipal Law

    Intergovernmental Cooperation Agreements – Change of Boundary Lines

    City of Kaukauna v. Village of Harrison, 2015 WI App 73 (filed 26 Aug. 2015) (ordered published 30 Sept. 2015)

    HOLDING: An intergovernmental cooperation agreement that transferred land between the participating municipalities did not violate Wis. Stat. section 66.0301(6).

    SUMMARY: In 2013, the village of Harrison (the village) was created from land within the town of Harrison (the town). Shortly thereafter, the town and the village (hereinafter Harrison) entered into an intergovernmental cooperation agreement that transferred additional land to the village and provided for the sharing of services between the two communities.

    The cities of Kaukauna and Menasha, the village of Sherwood, and individual property owners (the plaintiffs) filed an action seeking to void the transfer of lands from the town to the village. They argued that the intergovernmental cooperation agreement was void because it involved a “major” boundary change that exceeds the scope allowed by statute, and that Harrison did not strictly comply with the notice requirements specified in Wis. Stat. section 66.0301(6). The circuit court granted summary judgment to Harrison, finding that the agreement did not exceed the authority granted by section 66.0301(6) and that Harrison had properly complied with statutory notice requirements.

    In a decision authored by Judge Reilly, the court of appeals affirmed. It rejected the plaintiffs’ argument that Wis. Stat. section 66.0301 permits only “modest boundary changes incidental to” the sharing of services between governments and requires prehearing notice apprising property owners of the effects of the intergovernmental agreement on the boundary lines (¶ 7).

    “The [plaintiffs] concede that Wis. Stat. § 66.0301(6) ‘is silent on the scope of the boundary change[s]’ permitted via intergovernmental agreements, yet they argue that the statute must be read to allow only limited boundary changes necessary to accomplish the statute’s ‘primary goal of sharing services between municipalities.’ Otherwise, they say, the statute leads to ‘absurd and unconstitutional results.’ We disagree. The [plaintiffs’] argument would require us to read language into the statute that is not there and that is contrary to the plain language of the statute, which permits agreements affecting ‘all or a portion of the common boundary line[s],’ and allows for boundary changes to remain in place after any sharing of services between governments has ended. No absurd or unconstitutional results occur even if one construes Harrison’s boundary change to be ‘major’ rather than modest or incidental” (¶ 8) (citations omitted).

    The plaintiffs also contended that the intergovernmental agreement was void on grounds that Harrison failed to satisfy statutory notice requirements. They argued that the notices should have informed property owners that approval of the agreement would result in relocating many of them or their neighbors into the new village.

    The appellate court disagreed. “Both notices provided by Harrison made reference to ‘boundary line adjustments between the Town of Harrison and the Village of Harrison’ as being part of the intergovernmental cooperation agreement. This complied with the minimal notice requirement of Wis. Stat. § 66.0301(6)(c)1.” (¶ 14).

    Real Property

    General Easements – Deeds

    Berg v. Ziel, 2015 WI App 72 (filed 25 Aug. 2015) (ordered published 30 Sept. 2015)

    HOLDING: A purchaser of real estate had a general easement for access based on a selection by prior landowners; the easement could not be extinguished by the current landowner, and the circuit court erred by relocating the easement.

    SUMMARY: Berg and Ziel are neighboring landowners. The only access to Berg’s land is an existing private road across Ziel’s property. When Berg bought the property, however, the general-easement description omitted specific description of any land in the section containing the easement. Nonetheless, Berg used the road to access his land from the date of purchase in 2004 until 2010 when this controversy arose (see ¶¶ 7-9).

    In 2010, Ziel constructed a new road on his property, demanding that Berg use the same road. Berg refused, in large part because of the expense of building a new road to his parcel. Following a bench trial, the court entered judgment extinguishing Berg’s original easement but granting him an easement in the new location proposed by Ziel (see ¶ 11).

    The court of appeals reversed in an opinion authored by Reserve Judge Cane. “The easements in this case are express easements – easements created by written grant in a deed” (¶ 14). Case law has held that “the trial court could not relocate the easement from the established access road” (¶ 17). “Under any reasonable view of the evidence, an owner of either the dominant or servient estate had selected the existing access road as the easement’s location [long before Berg bought the parcel]” (¶ 19). Alternatively, the intent of the “first deed” was to memorialize this same easement (see ¶ 20).

    The court declined to remand for a finding on whether Ziel lacked notice or was entitled to some other defense, because he was “deemed to have notice of Berg’s easement as a matter of law” (¶ 22).


    Dog Bite – Emergency Doctrine – Past Pain and Suffering

    Kelly v. Berg, 2015 WI App 69 (filed 18 Aug. 2015) (ordered published 30 Sept. 2015)

    HOLDING: A new trial was ordered because the circuit court improperly instructed the jury on the emergency doctrine and used a special verdict that was confusing with respect to damages for past pain and suffering.

    SUMMARY: The plaintiff was injured while rescuing her dog from attack by the defendant’s dog, a pit bull named Princess. A jury found in favor of the plaintiff, awarding her $5,000 for past medical expenses, other damages for posttraumatic stress disorder (PTSD)-related past pain and suffering, and $150,000 for non-PTSD-related past pain and suffering.

    In an opinion authored by Judge Stark, the court of appeals ordered a new trial. First, the circuit court erred by reading an instruction on the emergency doctrine, a rule usually applied in automobile cases. Unlike situations requiring an “instinctive” or “intuitive” reaction (¶ 19), the plaintiff “had time to contemplate her course of conduct before acting” (¶ 22).

    The court of appeals also ruled inapplicable the “rescue doctrine” and “defense of property” statute. Finally, the erroneous instruction prejudiced the defendant, especially in light of voir dire questions in which jurors indicated that they would “intervene” to save a pet in a “dog fight” (¶ 29).

    The court of appeals also held that the special verdict confused various categories of damages for past pain and suffering. For example, the special verdict improperly separated the plaintiff’s damages into subcategories tied to PTSD and non-PTSD damages (see ¶ 38).

    Defamation – Statute of Limitation – False Assertions – Punitive Damages

    Laughland v. Beckett, 2015 WI App 70 (filed 25 Aug. 2015) (ordered published 30 Sept. 2015)

    HOLDINGS: A Facebook page defamed the plaintiff, the action was filed within the applicable statute of limitation, and sufficient evidence supported general and punitive damages.

    SUMMARY: The defendant created a Facebook page directed at demeaning the plaintiff. Between January and April 2010, the defendant posted a series of insulting items about the plaintiff. In a bench trial, the judge found the postings defamatory and awarded general and punitive damages.

    The court of appeals affirmed in an opinion authored by Judge Kessler. First, the action, filed in July 2012, fell within the statute of limitation for all postings. In February 2010 the legislature amended the statute of limitation for defamation claims from a two-year to a three-year window. Case law holds that the statute did not begin to run until the defendant’s last publication in April 2010; hence, all the postings fell within the statute.

    Second, the factual record clearly showed that the defendant’s statements were not substantially true and were not protected opinions (for example, allegations of bank fraud). Moreover, evidence showed that the defamatory statements harmed the plaintiff’s reputation (the Facebook page had six “friends”).

    Finally, the record supported the trial judge’s findings of $15,000 in general damages and $10,000 in punitive damages. As to the latter, it seems that the defendant’s motive was to enhance his standing with a woman who was the plaintiff’s former girlfriend (see ¶ 39).

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