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    Wisconsin Lawyer
    December 01, 2015

    Top 9 Recent Wisconsin Supreme Court Decisions

    During its 2014-2015 term, the Wisconsin Supreme Court issued 53 decisions covering a wide range of subjects. Although all those decisions are important to Wisconsin law, below is a sampling of the most notable supreme court decisions from last term. Listed first are civil cases in order of release date, followed by criminal cases in their order of release. 

    Lisa M. Lawless

    Wisconsin State Capitol at Dusk in Winter

    Photo: Richard Hurd

    In the author’s view, the cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2014-15 term.1

    CIVIL CASES

    Proving “Threats … of Suicide” for Involuntary Commitment

    Outagamie Cnty. v. Michael H. (In re Mental Commitment of Michael H.).2 The supreme court interpreted the involuntary commitment statute, Wis. Stat. section 51.20, in Outagamie County v. Michael H. (In re Mental Commitment of Michael H.). To prevail in an involuntary commitment petition, a county must prove by clear and convincing evidence that the subject of the commitment petition is mentally ill and a proper subject for treatment and that the person is a danger to himself or herself or others.3 At issue in Michael H. was the “danger” element of the statute and specifically, the standard for finding proof of “suicidal threats.”

    In Michael H., Outagamie County filed a petition for involuntary commitment of Michael. After a jury determined he was a danger to himself, Michael was subject to commitment for six months.4 Michael appealed. He conceded he was mentally ill and the proper subject of treatment but disagreed that he was a danger to himself. Michael argued that there was insufficient evidence to allow the conclusion that there was a substantial probability he would injure himself based on threats of suicide or impaired judgment. On Michael’s appeal, the supreme court considered the proof necessary to establish “recent threats … of suicide.”

    The incidents leading to Michael’s commitment occurred when he came to Wisconsin for a week-long family visit. Michael had moved to Minnesota after a hospitalization in Wisconsin for mental illness. He told family members he moved to Minnesota to avoid a court order that he take antipsychotic medication. When Michael arrived from Minnesota, relatives could tell that his symptoms had returned. Michael acted distressed and on several occasions during his visit asked to be taken to the hospital. After several days of disturbing and delusional behavior, Michael told his mother that something was “not right in my head … I can’t think straight.”5 His mother convinced him to go to the hospital.

    At the hospital, Michael answered “yes” to a nurse who asked if he was suicidal. When his mother privately asked him about his suicide plan, Michael said it was hard to explain and was too long, and then he ran from the hospital. When police officers found him, Michael told them that he wanted to harm himself. Michael was placed in emergency detention, and a jury trial was held on the county’s petition for his involuntary commitment.6 The jury found by clear and convincing evidence that Michael was a danger to himself.

    On appeal, Michael challenged the conclusion that he was a danger to himself. He argued that the sole evidence of this element was the fact that he answered “yes” to the nurse who asked if he was suicidal. Michael argued that this was merely evidence of “thoughts” and not clear and convincing evidence of “threats.” He argued that the common meaning of “threat” is an intention to act, and he said that he did not express an intention to act on suicidal thoughts. Michael asserted he took no act in furtherance of those thoughts.7 There was no evidence he had a specific intentional plan for suicide. Michael argued the evidence also failed to show substantial probability of injury based on impaired judgment.

    Because the statute does not define “threat,” the supreme court considered common meanings of the word: “an expression of an intention to inflict injury” and “an indication of impending danger or harm.”8 Research indicates that “suicidal” is used both by persons who intend to act and persons without such intentions. In situations in which there is credible evidence supporting an inference that a person who affirms he or she is suicidal has the intention to act, a jury’s conclusion of dangerousness will not be reversed on the ground that the person was not specific enough in articulating his or her intent. Applying these principles, the court found that the facts as to Michael’s statement and behavior satisfied the common meaning of suicide threat.

    The court held that “an articulated plan is not a necessary component of a suicide threat.”9 The court explained that “[i]f we were to hold otherwise, it would require a person in a confused mental state to articulate a plan before obtaining treatment through involuntary commitment. That would write into the statute a potential barrier to treatment that is inconsistent with its purpose.”10

    Affording the jury’s determination the necessary deference, the court accordingly affirmed the determination, finding that credible evidence supported the verdict.11

    Scope of Courts’ Determination on Motion to Compel Arbitration

    First Weber Grp. Inc. v. Synergy Real Estate Grp. LLC.12 In Wisconsin, arbitration is a favored way of resolving disputes, and courts presume agreements to arbitrate to be valid. Wisconsin’s procedures regarding arbitration are codified in Wis. Stat. chapter 788. First Weber Group Inc. v. Synergy Real Estate Group LLC discusses the role of the courts in enforcing arbitration agreements and determining whether a dispute must be arbitrated. First Weber presented the supreme court the opportunity to delineate which subjects are to be determined by the court on a motion to compel arbitration, and which are left to be decided in the arbitration forum. This case teaches that courts have a limited role regarding arbitration.

    First Weber sought to recover a real estate commission that it paid to Graham. Pursuant to the rules of the real estate association to which the parties belonged, First Weber and Graham arbitrated the claim for refund of the commission. The arbitrator ordered Graham to repay the commission. He did not do so. First Weber then filed an action in court under Wis. Stat. chapter 788, to confirm the arbitration award and obtain an order requiring payment of the judgment.

    Under the parties’ agreement, First Weber also was entitled to an award of attorney fees and costs (hereinafter costs) incurred in enforcing the arbitration award. Accordingly, on its confirmation motion, First Weber also asked for an award of costs. The circuit court confirmed the arbitration award but denied a costs award, reasoning that they are not recoverable under Wisconsin’s general cost statutes, Wis. Stat. chapter 814.

    With the confirmation motion resolved in court, First Weber then returned to the real estate association, to file a request to arbitrate its claim against Graham for costs. The association scheduled the arbitration but Graham refused to participate. First Weber then filed an action in court under Wis. Stat. section 788.03 to obtain an order requiring Graham to arbitrate. On that motion, there was no dispute that the claim for costs fell within the parties’ agreement to arbitrate, that is, the claim was “arbitrable.”

    However, Graham opposed arbitration on the ground that the request was untimely under the association rules. The rules provide that an arbitration must be filed within 180 days after the closing of the sale or the raising of a dispute. The association may allow exceptions to this time limitation. The circuit court denied First Weber’s motion to compel arbitration on the ground that the request was untimely under the association’s rules. The Wisconsin Court of Appeals affirmed.

    In a unanimous decision that comprehensively examines the role of the courts in determining arbitrability, the supreme court reversed, holding that the dispute must be arbitrated. The court held that the timeliness of the arbitration was not for the court to determine – rather, timeliness is an issue to be decided in the arbitration forum, absent the parties’ agreement providing otherwise. The court explained that upon a petition to compel arbitration, a court’s sole role is to determine whether the parties have agreed to arbitrate the particular dispute. That is termed “substantive arbitrability.”

    Absent the parties’ agreement otherwise, the court may not decide other matters relating to “procedural arbitrability,” such as whether the request to arbitrate was timely made.

    The supreme court held that the circuit court was required to grant the petition to compel arbitration because the parties agreed the dispute was arbitrable (substantive arbitrability). However, the court should not have decided any issues of “procedural arbitrability” such as whether the request to arbitrate was timely made under the association’s rules.

    Surveying Wisconsin law and law from other jurisdictions, in First Weber the court explained the difference between substantive and procedural arbitrability. The former is properly resolved in court.

    Issues of procedural arbitrability, however, are to be resolved in the arbitration, and they include claims of “waiver, delay, or a like defense to arbitrability.”13 The determination of prerequisites such as time limits and other conditions precedent are to be decided in the arbitration. “Questions of mere delay, laches, statute of limitations, and untimeliness raised to defeat compelled arbitration are issues of procedural arbitrability exclusively reserved for resolution by the arbitrator.”14 As the court explained, “[t] he vast majority of state courts hold that these procedural issues are presumptively for an arbitrator to decide.”15 The courts presume that issues of substantive arbitrability are to be decided by the courts.16

    The supreme court concluded that these presumptions are consistent with Wisconsin law. In Wisconsin, courts decide substantive arbitrability to determine whether the dispute is subject to an agreement to arbitrate. This is to protect parties from being compelled to arbitrate a dispute they did not agree to arbitrate.17

    On the other hand, the “rationale behind the presumption associated with procedural arbitrability is that it advances the public policy of encouraging arbitration and enforcing arbitration agreements” and “prevents courts from ruling on the merits of an underlying claim when determining whether to compel arbitration.”18

    If an arbitration agreement “could” cover the subject matter of the dispute (the issue of substantive arbitrability), “the court must order arbitration and resolve all doubts as to the scope of the agreement in favor of compelling arbitration.”19 Issues such as Graham’s timeliness and estoppel defenses against arbitration are procedural arbitrability issues to be determined in the arbitration process, rather than by a court.20Accordingly, the supreme court reversed the court of appeals’ decision and remanded for an order requiring arbitration of First Weber’s claim for costs.

    Consideration for Restrictive Covenants Given by Existing At-will Employees

    Runzheimer Int’l Ltd. v. Friedlen.21 In Runzheimer International Ltd. v.Friedlen, the supreme court considered the consideration necessary to support a restrictive covenant agreed to by an at-will employee. Friedlen had worked for Runzheimer for more than 15 years when the company required all employees to sign restrictive covenants. Friedlen was given two weeks to review the covenant, after which he was required to sign it or be fired. Friedlen signed the covenant and continued working for Runzheimer for 29 months before being terminated in 2011.22 Friedlen then obtained employment with CRS, one of Runzheimer’s competitors. Runzheimer sued Friedlen and CRS, asserting breach of the restrictive covenant.

    CRS and Friedlen moved for summary judgment, arguing the covenant lacked consideration. The circuit court granted the motion against three of Runzheimer’s four claims. The court concluded that Runzheimer’s promise not to fire Friedlen immediately if he signed the covenant was an “illusory promise” and did not supply consideration to support the covenant because the employer retained the “unfettered right” to terminate Friedlen at any time, including immediately after he signed the covenant.23

    Runzheimer appealed, and the court of appeals certified the case to the supreme court, posing the following issue of first impression: whether an employer’s forbearance of the right to terminate an at-will employee in exchange for the employee’s signing a restrictive covenant constitutes lawful consideration.24

    Reviewing fundamental contract law principles, the supreme court explained that consideration is defined as a detriment incurred by the promisee or a benefit received by the promisor at the request of the promisor. Neither the benefit nor the detriment “need be actual.” A promise for a promise, or an exchange of promises, will constitute consideration for any bilateral contract.25

    The court reviewed Wisconsin case law relating to issues of consideration and employee restrictive covenants. First, it is well established there is “lawful consideration” when an employer requires that an at-will employee sign a restrictive covenant as part of the hiring process.26This is true even though the employer is free to terminate the employment relationship at any time.

    Second, the supreme court considered NBZ Inc. v. Pilarski,27 in which the court of appeals held that there was no lawful consideration in a situation in which an employer asked an existing at-will employee to sign a restrictive covenant but did not condition employment on giving the covenant or promise to do anything in exchange for the covenant. Under those circumstances, the court held that the covenant was unenforceable.28

    Third, the supreme court considered Star Direct Inc. v. Dal Pra,29 which held that an employer can require new at-will employees to sign restrictive covenants although the employer does not require existing at-will employees to do so.30

    Considering the law of other jurisdictions, the court explained that only a “distinct minority” of jurisdictions hold that a promise not to fire is not lawful consideration for a restrictive covenant. The majority of jurisdictions find forbearance of the right to terminate an at-will employee to be lawful consideration on the basis that the employee is obtaining an expectation of continued employment, “which is not worthless or illusory.”31 The court explained that it does not matter that the promise not to fire is for an indeterminate time because the duration of the promise “goes to the adequacy of consideration, not the existence of lawful consideration.”32 Courts will not examine the adequacy of consideration.

    Accordingly, the supreme court concluded that there was lawful consideration supporting Friedlen’s restrictive covenant to Runzheimer because “both parties agreed to give up a legal right. The inquiry ends there.”33

    The circuit court was concerned that Runzheimer could have immediately fired Friedlen and for that reason it found the promise not to fire illusory. The supreme court rejected this reasoning, noting that “[e]xisting contract principles adequately address such a situation.” For example, a theory of fraudulent inducement could be used to void the contract if the employer induces the covenant and then immediately fires the employee. Or, an employer engaging in such conduct may breach the covenant of good faith and fair dealing.34

    In a concurring opinion, Chief Justice Abrahamson reasoned that if the employer merely promised only to forbear from immediately firing Friedlen, then the promise “was illusory” and could not serve as consideration. The concurring opinion reasoned that the majority’s invocation of the protection of fraudulent inducement and good faith “in effect transforms the parties’ at-will employment contract into an employment contract for a reasonable duration. Understood this way, I agree with the majority opinion.”35 The majority opinion can be read to suggest that Runzheimer implicitly promised to refrain from firing Friedlen for a “reasonable time” after signing the covenant.36

    Public Records Requests When There is No Record

    Journal Times v. Police & Fire Com’rs Bd.37 In Journal Times v. Police & Fire Commissioners Board, the Racine Journal Times (the newspaper) filed a mandamus action under the public records law, Wis. Stat. section 19.37(1)(a), arising from its request for information from a special meeting of the Racine Police and Fire Commission (the commission) regarding the hiring of a chief of police. The newspaper sought an award of fees and costs, arguing that it prevailed in whole or in substantial part in the action.

    Lisa M. LawlessLisa M. Lawless, Indiana 1992, is a litigation attorney and the appellate team leader at Whyte Hirschboeck Dudek S.C., Milwaukee.

    The newspaper argued that it substantially prevailed because the commission twice denied the request and misapplied the standard for denying a public records request.38 The newspaper filed the action to obtain a document that it was led to believe existed, but the request was denied. The newspaper argued that the commission did not timely respond to the request. Further, in the commission’s responses to the requests, the commission did not inform the newspaper that no documents existed. Instead, the commission disclosed that fact for the first time after the mandamus action was filed. The newspaper argued that under Newspapers Inc. v. Breier,39 the commission is barred from asserting that the record did not exist.

    The commission, in turn, argued that the newspaper did not prevail in substantial part. The newspaper is a sophisticated requester and it requested information, not a record.40 The commission provided the requested information even though it was not required to do so. Further, it could not have unlawfully denied the request because no document existed at the time of the request.

    The newspaper requested information regarding voting at a closed session meeting of the commission held on Feb. 20, 2012.41 After filing the mandamus action, the newspaper was given the requested information. The newspaper moved for attorney fees, arguing it prevailed in substantial part in the action. The circuit court dismissed the mandamus action, granting judgment to the commission. The court of appeals reversed and remanded for a determination of a fee award.

    The supreme court reversed, holding that the newspaper did not prevail in substantial part because the commission did not unlawfully deny or delay the release of the subject record. The court explained that the Public Records Law grants access to “records,” not “information.”42 On Feb. 22, 2012, the newspaper requested information, not a record, asking for “the vote of each commissioner” from the special meeting held on Feb. 20. That same day, it followed up to request the “recorded motions and votes” of each commissioner, including who made the motion and who seconded it.43

    It was undisputed that no records containing this information existed at the time of the request. Notes were not taken at the special meeting, and minutes were not drafted. On March 7, 2012, the commission “denied” the request without providing a particularized ground for the denial and without informing the newspaper that no documents existed. The commission responded a second time on March 9, 2012, raising safety concerns of the commissioners relating to the meeting.44 The commission further expressed willingness to release the “specifics of the vote” within five business days after the hiring of the new police chief.45

    On March 12, 2012, the newspaper insisted on receiving the information immediately on grounds the public should know how the decision was made. It filed the mandamus action on March 16, 2012. On March 22, 2012, the commission provided the requested information, but did not provide a record, because none then existed.46

    Noting that the newspaper did not bring an Open Meetings Law action, the supreme court observed that the Public Records Law and Open Meetings Law have different purposes and different vehicles of enforcement. The court reasoned that the newspaper cannot seek relief under the Public Records Law for the failure to keep records. That is an issue under the Open Meetings Law.47

    The court observed that the public records request could be interpreted to request “information,” not a “record.” The commission was not required to provide information in response to a records request.48Although a records request “need not be made with exacting precision” to be deemed a valid request, the court reasoned that the newspaper “is a requester and wordsmith with experience and sophistication.”49

    The court considered whether the commission could assert the absence of a record in the mandamus action when it did not assert that fact in its initial response to the public records request. The court held that a court may consider whether a record existed when the public records request was made, even though the custodian’s response to the request did not specifically state the record does not exist. A court may consider whether the requested record is exempt from disclosure even though the custodian did not assert the grounds before filing of a mandamus action.50

    Observing that the newspaper’s requests and the commission’s response were lacking somewhat in clarity, the supreme court reasoned that “[b]oth parties contributed to any misunderstanding, if there was one, of what was being requested and the sufficiency of the responses.”51 The court observed that the case was complicated by the parties’ mistakes that exacerbated confusion about what was being requested and the fact that no records existed. But these “misunderstandings do not equate to a public records law violation such that the [n]ewspaper prevailed ‘in substantial part.’”52

    Accordingly, the court held that the newspaper did not prevail in substantial part in the action because the commission did not unlawfully deny or delay the release of the subject record and no record was produced as a result of the lawsuit.53 The court held that the commission responded to the newspaper with “reasonable diligence” and released the requested information while maintaining it was not required to do so and at a time when no record existed.54 The commission provided more information than the Public Records Law required and no record existed to produce.55

    Justice Abrahamson, joined by Justice Walsh Bradley, agreed that the newspaper was not entitled to recover attorney fees and costs even though in their view many of the newspaper’s arguments were “correct.”56 The concurring justices agreed that the newspaper did not prevail in whole or in substantial part in the mandamus action. But they disagreed with the majority’s suggestion that the public records request was inadequately worded to constitute a record request.57

    In addition, the concurring justices agreed with an amicus brief of the Department of Justice, which asserted that the commission “was obligated to respond to the [n]ewspaper’s record request by stating that the requested record did not exist.”58 By not clearly informing the newspaper up front that the records did not then exist, the commission effectively “sandbagged” the newspaper.59 Justice Abrahamson reasoned that had the commission promptly informed the newspaper that the record did not exist, the newspaper would have known that it could not compel the commission to disclose the nonexistent record under the Public Records Law. Consequently, the newspaper would not have filed a mandamus action and it instead could have sought to compel the commission to create the record under the Open Meetings Law.60

    Expecting that similar scenarios may occur in the future, the concurring opinion suggested that guidance for record custodians would help advise how best to respond to requests for nonexistent records. The concurring justices advocated the position advocated by the Department of Justice: When “a record custodian knows it has no responsive record, the custodian must notify the requester as soon as practicable and without delay that the requested record does not exist.” 61

    Accrual of Survival and Wrongful Death Claims

    Christ v. Exxon Mobile Corp.62 The court considered the accrual of wrongful death and survival claims and the application of the discovery rule in Christ v. Exxon Mobile Corp. Christ was a tort action filed by former employees and the estates and beneficiaries of former employees of an Eau Claire manufacturing plant against several defendants, including Exxon. The action alleged that the former employees’ injuries and deaths resulted from exposure to benzene in the workplace.

    The defendants moved to dismiss the complaints of eight of the plaintiffs, arguing that their claims were time barred under Wis. Stat. section 893.54 because they were filed more than three years after the deaths of the injured employees. The circuit court agreed, dismissing those claims. The court of appeals summarily reversed that dismissal.

    The defendants argued that the claims could not have accrued later than the deaths of the employees they represent because the discovery rule in survival and wrongful death claims does not extend to third parties, that is, persons other than the decedents. The plaintiffs argued that nothing in the law so limits the discovery rule and the rule applies to both survival claims and wrongful death claims, such that the claims may accrue after an injured person’s death if the third party’s discovery of the claim is reasonable.63

    The supreme court agreed with plaintiffs’ argument, affirming the decision of the court of appeals. The court discussed the discovery rule it adopted in 1983 in Hansen v. A.H. Robins Co.64 and the policies underlying the rule. Considering Hansen, the court held that the discovery rule applies in wrongful death and survival actions, and a claim may accrue after the date of the injured person’s death.65

    The court explained that “[i]n the absence of a legislatively created rule to the contrary, claims accrue when there is a ‘claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it.” 66 “These criteria are not met ‘until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of the injury but also that the injury was probably caused by the defendant’s conduct or product.’”67

    Applying these principles to the case at hand, the court held that “the applicable statute of limitations began to run when the survival claims and wrongful death claims were discovered, provided that the plaintiffs are able to show that they exercised reasonable diligence in investigating and discovering their claims.”68

    The court first considered the history of wrongful death and survival claims. Such claims did not exist at common law. At common law, tort claims were extinguished if either the injured person or the tortfeasor died before the victim recovered damages.69 Also, family members of deceased victims had no cause of action for loss of financial support or companionship suffered as a result of the death of their relative.

    This changed with the adoption of statutes permitting survival actions and wrongful death claims. As far back as 1839, survival actions were permitted by statute. Damages for injuries sustained by a tort victim before death may be pursued in a survival action. These are claims the deceased could have pursued but for his or her death. They are brought by personal representatives to benefit the decedent’s estate. Survival actions are permitted by Wis. Stat. section 895.01.

    In 1857, the legislature permitted wrongful death claims, that is, claims for injuries suffered after death.70 In wrongful death claims, plaintiffs can seek damages for loss of society and companionship. The court explained that such claims are “derivative tort claims,” in that they depend on the death of the injured person along with a tort claim under which the injured person would have been able to recover had he or she not died. If the decedent’s own claim would have been barred, then the claim of the decedent’s statutory beneficiary likewise would be barred.71

    The discovery rule, in contrast, is a much more recent doctrine of Wisconsin law. The rule was adopted in 1983 in Hansen, a case involving personal injuries arising from the “Dalkon shield” intrauterine device. Hansen announced the rule applicable to all tort claims not specifically covered by a legislatively created discovery rule: “tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first.” Hansen overruled all cases holding that tort claims accrue at the time of the negligent act or injury.72

    A few years later, in Borello v. U.S. Oil Co., the supreme court explained that “Hansen stands for the proposition that mere knowledge of the fact of an injury and nothing more will not trigger the commencement for the period of limitations.”73

    Hansen did not involve a death and therefore did not consider the matters at issue in Christ.74 In Christ, the defendants argued that the discovery rule does not apply to wrongful death claims, citing Terbush v. Boyle,75 which held that wrongful death claims accrue at death. However, Terbush was decided nearly 50 years before Hansen. The cases cannot be reconciled. Accordingly, the court held in Christ that “[f]or all practical purposes, Terbush was overruled by Hansen and Borello, and it is expressly overruled here.”76

    The court rejected the notion that the discovery rule applies only to decedents in wrongful death actions and not to third parties. The discovery rule applies to plaintiffs in wrongful death actions. Because such claims are derivative, if the decedent would not have had a claim if he or she had not died, then the surviving relatives likewise have no claims.77 But a claim may accrue after the decedent’s death. Discovery of the identity or cause of the death might not occur until after the victim’s death.

    The court considered the hypothetical of a hit-and-run causing instant death. The victim might not know the identity of the driver, but the victim’s beneficiaries could discover that fact after the death. Under those circumstances, only the third party would be able to discover the identity of the tortfeasor.78 The discovery rule should apply in those circumstances, providing three years to sue from the date the tortfeasor’s identity was or should reasonably have been discovered.

    The court rejected the defendants’ argument that the statute of limitations accrues on the date of death and it cannot accrue after death. Such a rule would be inconsistent with Hansen. The defendants’ theory would bar a claim if the identity of the tortfeasor were discovered more than three years after the death. 79 Further, the court held that the court of appeals was not “wrong” in its unpublished decision in McIntyre v. Forbes,80 which held that a wrongful death claim for a 1980 homicide accrued when the victim’s killer was charged with the crime in 2009.81

    Likewise, for survival claims, the plaintiff may assert the discovery rule, and the court rejected the argument that the accrual of survival claims occurs no later than the date of death. The court reasoned that the personal representative pursuing a survival claim “stands in the shoes” of the decedent for purposes of the discovery rule. The discovery rule makes it possible for those claims to accrue after the decedent’s death. Survival claims accrue on the date the injury is discovered or in the exercise of reasonable diligence should be discovered either by the decedent or by “an appropriate third party (often the decedent’s personal representative), ‘whichever occurs first.’”82

    Finally, the court noted several caveats regarding the discovery rule. Inherent in the discovery rule is an obligation of reasonable diligence, which applies to decedents and their third-party representatives. Further, defendants have the burden of raising the statute of limitations as an affirmative defense. Also, plaintiffs, of course, still have the burden of proving the elements of their tort claim; it is not “relaxed” by the passage of time for older cases “kept alive by the discovery rule.”83

    Finally, public policy considerations might weigh against the application of the discovery rule and so its use may not be appropriate in a particular case. In some cases, requiring a tortfeasor to defend against very old claims may place an unreasonable burden on such parties. The discovery rule does not mean that claims “will always proceed; it is up to the courts to balance the equities in such cases.”84

    CRIMINAL LAW

    Denial of Defendant’s Exercise of Right to Testify

    State v. Anthony.85 State v. Anthony considered the circumstances under which a criminal defendant may be held to forfeit his or her right to testify on his or her own behalf when the defendant refuses to follow court rulings regarding relevant evidence. It also considered whether such a ruling is subject to the harmless-error standard of review.

    In 2010, Eddie Lee Anthony killed S.J., the mother of his children, beating her and stabbing her 45 times with an ice pick while their children hid in a closet in the next room. The cause of death was ruled to be multiple sharp and blunt-force injuries. Anthony did not deny killing S.J., and his theory at trial was self-defense. In his trial on charges of first-degree homicide, Anthony wished to testify as the sole eyewitness to the crime.

    The circuit court refused to allow Anthony to testify on grounds that it posed a substantial risk of disrupting the trial process. Anthony insisted on several occasions that he would inform the jury of his 1966 conviction for armed robbery and 12-year imprisonment, which he contended were wrongful. He wanted to share his view that the conviction was racially motivated and also that the pending murder charges were racially motivated.

    The circuit court ruled that these proposed subjects of testimony were irrelevant, explaining the basis for this ruling several times. Each time the court explained this ruling, Anthony became increasingly agitated, to the point that the judge summoned extra sheriff’s deputies into the court room, and insisted numerous times that he would disobey the ruling. Anthony emphatically said that he would “keeping saying it. You got to carry me out of here.” He also said that he planned to tell the jury everything he could remember dating back to when he was five years old.86

    After the state’s presentation of its case, the circuit court engaged in a discussion with counsel and Anthony regarding his intention to testify. The court warned him numerous times that he would not be permitted to testify if he insisted on going into his prior conviction and other irrelevant subjects. The circuit court tried to make sure that Anthony understood he would not be permitted to testify about his self-defense theory if he insisted on disobeying the court’s evidentiary ruling.87

    Given Anthony’s repeated refusal to follow the court’s rulings and adamant insistence he would testify broadly on the irrelevant subjects, the circuit court held that Anthony forfeited his right to testify at trial. The court explained that it considered less extreme measures, such as allowing testimony but providing limiting instructions to the jury. The court reasoned that this was not feasible under the circumstances and would only disrupt the trial proceedings.

    The supreme court explained that the constitutional right to testify is grounded in “personal autonomy” and cannot be waived by counsel. The circuit court must conduct a colloquy with the defendant to ensure that the defendant’s waiver of his or her right to testify is knowing and voluntary. The right to testify cannot be lost by silence. At the same time, however, the right to testify is “not absolute.” For example, there is no right to commit perjury. Nor is there a right to present “irrelevant evidence.”88

    The supreme court explained that the right to present testimony “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”89 Numerous procedural and evidentiary rules control the presentation of evidence and they do not offend the defendant’s right to testify. These rules, however, may not be “‘arbitrary or disproportionate to the purposes they are designed to serve.’”90

    Considering these principles, Anthony presented the supreme court with a question neither it nor the U.S. Supreme Court had ever decided: can a criminal defendant forfeit his or her right to testify through conduct incompatible with the assertion of the right? The court held that the right to testify is subject to waiver, with respect to inaction in asserting the right.91 Waiver is the “‘intentional relinquishment or abandonment of a known right.’”92 Deciding the novel issue presented in Anthony, the court held that “the right to testify may, in appropriate cases, be subject to forfeiture where conduct incompatible with the assertion of the right is at issue.”93

    In reaching this conclusion, the court cited Illinois v. Allen, a U.S. Supreme Court case holding that a criminal defendant could be held to forfeit his constitutional right to be present at trial by engaging in speech and conduct so noisy, disorderly, and disruptive that it was difficult or impossible to carry on the trial.94 The Wisconsin Supreme Court held that Allen’s rationale “logically extends to the context of the right to testify, given that a corollary to removal may be denial of that right.”95

    The court predicted that the U.S. Supreme Court would reach the same conclusion under Rock and Allen. The court explained: “Surely, the preservation of dignity, order, and decorum in the courtroom constitutes a legitimate interest in the criminal trial process that may outweigh a defendant’s right to testify in certain circumstances.”96 Further, the court noted that it has previously held that “a criminal defendant may forfeit his or her constitutional right to counsel through manipulative or disruptive conduct.”97

    In those circumstances, the court has advised, circuit courts should take four steps before determining that the defendant has forfeited his or her right to counsel through conduct, including giving explicit warnings as to the specific consequences if the defendant persists in specified conduct; engaging in a colloquy warning the defendant of the effect of those consequences; providing a clear ruling when the court finds forfeiture; and entering factual findings to support the ruling.98

    Accordingly, the court held that a criminal defendant “may forfeit his or her right to testify through conduct incompatible with the assertion of the right in appropriate cases. However, we stress that a circuit court’s determination on forfeiture must be guided by Rock’s balancing test. Thus, a forfeiture determination may not be arbitrary or disproportionate to the purposes it is designed to serve.”99 The court held that a court need not remove a defendant from the courtroom to justify denial of the right to testify.

    In Anthony, the court held that to determine whether a defendant forfeited his or her right to testify by conduct, “the appropriate inquiry is to consider the totality of the circumstances in order to assess whether the defendant interfered with the circuit court’s ability to protect that right.”100 This inquiry “must be guided by Rock’s balancing test – the forfeiture determination must not be arbitrary or disproportionate to the purposes it is designed to serve. In other words, a complete denial of the right to testify must be reasonable under the circumstances of the case.”101

    Applying this test, the supreme court held that the circuit court denied the defendant the right to testify based on legitimate interests in the criminal trial process. Those interests were the court’s ability to control the presentation of evidence so as to ensure the fairness and reliability of the criminal trial process and the preservation of dignity, order, and decorum in the courtroom.102

    The court held that the record showed that permitting Anthony to testify likely would have confused or misled the jury. Introduction of Anthony’s irrelevant testimony would not have helped the jury ascertain the truth. For example, the evidence of Anthony’s testimony regarding his 1966 conviction would have created the danger of a trial-within-a-trial, which would be a waste of time and confusing to the jury.

    Also, the court found that the record is “clear” that Anthony posed a “serious threat” to the dignity, order, and decorum of the courtroom. Anthony grew increasingly angry and animated in insisting on testifying to the irrelevant subjects, and he appeared close to the “breaking point.” For example, Anthony threatened that he would have to be carried out of the courtroom if he could not testify as he wished. When a defendant displays such “disruptive conduct,” the court held, “we find it rational to conclude that a circuit court has a legitimate interest in placing reasonable limitations on the right to testify.”103

    Finally, the court considered whether the complete denial of the right to testify was “reasonable under the circumstances” and whether the forfeiture holding was “arbitrary or disproportionate to the purposes it was designed to serve.”104 The court found that the denial was reasonable and was neither arbitrary nor disproportionate. The circuit court considered less restrictive alternatives to forfeiture but ultimately opted against them under the circumstances. The circuit court “was not required to put Anthony on the stand and wait for the fireworks. The criminal trial process deserves better.”105

    The court held that “Anthony forfeited his right to testify by displaying stubborn and defiant conduct that presented a serious threat to both the fairness and reliability of the criminal trial process and the preservation of dignity, order, and decorum in the courtroom.”106 The court held that the forfeiture determination was not arbitrary or disproportionate to the purposes it was designed to serve.

    Accordingly, the circuit court did not err in denying Anthony the right to testify. Even if such ruling were erroneous, the evidentiary ruling denying Anthony the right to testify would be subject to a harmless-error analysis. Even if error were assumed, it would be “harmless beyond a reasonable doubt,” given the “overwhelming evidence of Anthony’s guilt.”107

    Discretionary Reversal in Interests of Justice

    State v. Kucharski.108 In a double-murder case turning on the evidence presented of the defendant’s mental responsibility, the supreme court reviewed a court of appeals’ decision granting the defendant a new trial under the “rarely used power of discretionary reversal” of a conviction under the miscarriage of justice standard, Wis. Stat. section 752.35.109 The supreme court reversed the grant of a new trial, holding that the court of appeals erroneously exercised its discretion because it applied the improper standard of review to the circuit court’s factual findings and substituted its judgment for the fact-finder, to reweigh the evidence.

    Kucharski was charged with two counts of intentional homicide for the murder of his parents. He claimed to have killed them because of voices he heard. He pleaded not guilty by reason of mental disease or defect (NGI). He pleaded no contest to the guilt phase and waived a jury on the responsibility phase.

    At trial, one physician testified as the sole witness for the defense, and his and another physician’s reports and materials were admitted into evidence. The defendant’s physician-witness testified that Kucharski’s symptoms of schizophrenia were so severe on the night of the murders that he lacked substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the law. Other physicians’ opinions agreed with these general conclusions.

    The state did not present witnesses at trial. It did not dispute Kucharski’s mental illness, but it argued that the evidence of Kucharski’s actions showed he had substantial capacity to appreciate the wrongfulness of what he did and to conform his conduct to the law.110

    Regarding the evidence of mental responsibility, the circuit court held that Kucharski failed to meet his burden of proving he was not responsible. Although Kucharski suffered from schizophrenia, the circuit court held that the physicians’ opinions that he was not mentally responsible “were speculative and insufficient to overcome other evidence from which it could be inferred that he appreciated the wrongfulness of his conduct and had the capacity to conform his conduct to the requirements of the law.”111

    The court found that Kucharski made statements soon after the crimes that he understood his conduct was wrongful and illegal.112 He knew he needed a lawyer and that he would go to jail for the killings. Further, there was evidence from which it could be inferred that he could conform his conduct to the requirements of the law, including the fact that he did not comply with the voice that commanded him to kill himself or engage in a shootout with police.

    Ultimately, the circuit court found that Kucharski did not sustain the burden of proving the lack of substantial capacity to conform his conduct to the law. The circuit court rejected the conclusions of the physicians’ opinions, finding them based on speculation as to what happened.113

    Considering the evidence, the circuit court found that Kucharski had substantial capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the law. The circuit court held that Kucharski failed to meet his burden on the issue of responsibility. Accordingly, he was convicted and sentenced to consecutive life sentences.

    On appeal, Kucharski raised several different claims. The court of appeals, however, focused solely on his motion for a new trial under Wis. Stat. section 752.35, which allows a discretionary reversal based on a finding of miscarriage of justice. Under the statute, justice has miscarried if “there is a substantial probability that a new trial would produce a different result.” The supreme court has held that “only in exceptional cases” is it appropriate for an appellate court to exercise its discretion to grant a new trial under this statute.114

    The court of appeals held that the statutory standard for discretionary reversal was met because Kucharski proved by the greater weight of credible evidence that he was not mentally responsible for the murders. The dissenting judge of the court of appeals panel would have affirmed the circuit court, on grounds that the credibility of witnesses, the weight of the evidence, and determination of whether the defendant met his or her burden are the province of the circuit court.115

    Before the supreme court, the state argued that the circuit court appropriately weighed the evidence in a way that is consistent with State v. Sarinske,116 which held that a circuit court is not required to accept the opinion of an expert, even if uncontradicted. The state argued that the court of appeals improperly substituted its judgment for that of the fact-finder. Kucharski, on the other hand, argued that the very nature of the miscarriage of justice test “necessitates substitution of the appellate court’s judgment for that of the factfinder” and the appellate court should have “unfettered discretion to review the record without deference to the factfinder’s conclusions.”117

    On review, discretionary rulings are upheld “unless they are reached under an incorrect view of the facts or the law.” If the court of appeals made a discretionary ruling “based upon a mistaken view of the law,” the decision will ordinarily be reversed.118 Applying this standard of review, the court held that the court of appeals made its discretionary order based on a mistaken view of the law. It is an erroneous exercise of discretion for the court of appeals “‘to shortcut [established] procedures … when there is no apparent reason for doing so.’”119

    The court of appeals’ reason for the reversal was that the defendant “had met his burden” of proving lack of mental responsibility for the crimes. The supreme court held that goes “too far” upon a review of a question of fact. Further, it was error to set aside findings of fact without evaluating them under the proper standard of review.120 Assessing the credibility of witnesses is the function of the jury or the judge, in cases where the jury is waived. The fact-finder “has the great advantage of being present at trial.” An appellate court may substitute its judgment for that of the fact-finder only when the evidence relied on by the fact-finder “is inherently or patently incredible.”121

    The determination reviewed on appeal, whether the defendant met his burden of proof on the issue of mental responsibility, “is a question of fact, subject to a clearly erroneous standard of review.”122 The court of appeals held that there is a substantial probability that a new trial would produce a different result because the defendant met his burden of proving lack of mental responsibility, finding that the evidence was “very strong” and comprised the greater weight of the credible evidence.123

    The supreme court said that the court of appeals erred in performing a new weighing of the evidence and holding that Kucharski met his burden because those determinations “are unquestionably issues of fact, not law.”124 The court of appeals thereby engaged in an “improper de novo weighing of the evidence.”125 However, when the evidence is reviewed under the proper standard of review, the supreme court found that there is not a probability of a different result on retrial such that a new trial in the interest of justice is warranted. Accordingly, the court reversed and remanded to the court of appeals for determination of Kucharski’s remaining unaddressed claims.126

    The discretionary reversal by the court of appeals was based on four grounds. First, it was undisputed that Kucharski suffered from schizophrenia.127

    The second ground was that the expert testimony was “uncontroverted.” The experts opined that the mental illness rendered the defendant unable to appreciate the wrongfulness of his conduct and to conform his conduct to the law.

    On this point, the supreme court explained: “But the opinions of experts are not dispositive. The trier of fact retains the sole responsibility for determining whether the defendant has met his burden.”128 An expert’s opinion need not be accepted by the trier of fact, and this is especially true when the experts relied substantially on information provided by the defendant. The court noted that was the case in Kucharski. The experts based their opinions on a meeting with Kucharski and they did not have information from other persons such as victims or witnesses.

    The court discounted this second ground, citing Sarinske, a case involving consideration of expert opinions on appellate review of the decision in a mental responsibility trial. Sarinske held that a trier of fact may reject the opinions of an expert, even if there is no contrary testimony, when the basis for the expert opinion is substantially derived from the defendant.129 Thus, the circuit court in Kucharski had no obligation in its role as fact-finder to accept the conclusion of experts who relied on the defendant for their reports.130

    The third ground found by the court of appeals in support of discretionary reversal was a lack of evidence of alternative explanations for Kucharski’s behavior.131 The supreme court rejected the argument, noting that such approach would seem to improperly shift the burden of proof on an NGI plea to the state.

    Finally, the court of appeals weighed the evidence suggesting Kucharski appeared to understand the illegality of his actions and refrained from committing suicide and concluded it did not mean that he was “generally able to control his behavior or appreciate its wrongfulness at the time of the shooting.” Noting that this is “the crux of the court of appeals’ reasoning,” the supreme court rejected this conclusion, holding that this constitutes “a bare reweighing of what the evidence means, which is not permitted by a reviewing court.”132

    The court rejected the argument that “the very nature” of the miscarriage of justice test “necessitates substitution of the appellate court’s judgment for that of the factfinder.”133 Adopting this formulation of the test would mean that a sufficiency of the evidence claim could be converted into a miscarriage of justice claim, and thus evade the stringent standard for reviewing findings of fact of the trier of fact. “Put a different way, a reversal in the interest of justice is not intended to put the reviewing court in the shoes of the trier of fact in a way that is otherwise not permitted.”134 The reviewing court must apply the proper standard of review to the circuit court’s factual findings.

    Moreover, on a discretionary reversal, the appellate court should only reverse and remand for determination by another jury – not reverse and substitute the court’s ultimate determination. The supreme court cited State v. Hintz, a case considering the sufficiency of the evidence and a discretionary reversal, which held that the ultimate question of whether the evidentiary burden was met would be for the trier of fact and not for the reviewing court. It is the function of the fact-finder to resolve this issue and, if reversed, the matter should be remanded for determination by another jury.135

    The court held that Kucharski is not one of the rare exceptional cases in which reversal is warranted. There was no finding that the circuit court’s findings were clearly erroneous. Therefore, the court of appeals was obligated to uphold the circuit court’s finding that Kucharski failed to prove a lack of mental responsibility for the crimes.

    The supreme court held that the circuit court drew proper inferences from the evidence and found those inferences more reliable than the doctors’ opinions and properly distrusted the self-report basis for those opinions. “When the evidence is reviewed under the proper standard, there is not a probability of a different result on retrial such that a new trial in the interest of justice is warranted.”136

    Finally, the court provided guidance for reviewing courts considering arguments for reversal under Wis. Stat. section 752.35. Discretionary reversal arguments should be reached only after the appellate court first addresses other claims of error and determines them to be unsuccessful. In Kucharski, the court of appeals did not reach the other arguments for reversal. Accordingly, the supreme court reversed and remanded for the court of appeals to resolve the unresolved arguments.137

    Reasonable Suspicion of Traffic Law Violations Supports All Traffic Stops

    State v. Houghton.138 In State v. Houghton, the supreme court considered whether an officer’s reasonable suspicion that a motorist is violating or has violated a traffic law is sufficient for the officer to initiate a traffic stop of the offending vehicle. The court also considered whether an objectively reasonable mistake of law may form the basis for a finding of reasonable suspicion.139

    In Houghton, the court reviewed a court of appeals decision reversing Houghton’s conviction for possession of THC with intent to deliver. Houghton pleaded guilty to the charge after the circuit court denied a motion to suppress evidence obtained during the course of a traffic stop.

    Houghton gave the court an opportunity to explain the standard necessary for police officers to lawfully initiate a traffic stop and to reconcile prior Wisconsin case law with recent rulings from the U.S. Supreme Court. Houghton considered “whether an officer’s reasonable suspicion that a motorist is committing a traffic violation is always sufficient for the officer to stop the motorist, or whether some stops require probable cause.” It also considered the effect of recent case law related to objectively reasonable mistakes of law by law enforcement officers.140

    Houghton was pulled over in a traffic stop in Walworth County after a police officer observed his vehicle traveling on a highway without a front license plate and with an air freshener and a GPS unit visible in the front windshield. Upon approaching the vehicle, the officer detected the odor of marijuana, which led him to search Houghton’s car. The search revealed 240 grams of marijuana and marijuana distribution paraphernalia.

    On a motion to suppress this evidence, Houghton argued that the officer lacked reasonable suspicion to justify the stop because the lack of a front license plate and the items in the windshield were not violations of Wisconsin law. The state argued that reasonable suspicion is sufficient for police officers to initiate any type of traffic stop and that the officer had such suspicion to initiate the stop of Houghton’s vehicle for the absence of a front license plate, items in the front windshield (a violation of Wis. Stat. section 346.88), and a missing side mirror.141

    On appeal, the court of appeals reversed, holding that there was no statutory violation and therefore no probable cause to conclude that a statutory violation occurred. The court noted that the U.S. Supreme Court had recently granted certiorari in Heien v. North Carolina, which concerned whether a reasonable mistake of law could provide grounds for a traffic stop.142 The supreme court granted the state’s petition for review after holding the petition in abeyance pending the decision in Heien, which was issued in December 2014.143

    First, the court considered whether reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops, or whether some stops require the presence of probable cause to believe a violation has occurred. As the court explained, the existence of multiple standards necessary to justify traffic stops was implied in State v. Gaulrapp, in which the court held that a traffic stop is “generally reasonable” if the officers have probable cause to believe that a traffic violation has occurred or have grounds to reasonably suspect a violation has been or will be committed.144

    This implied dual standard was maintained in State v. Longcore, in which the court reasoned that an officer did not act on a suspicion that warranted further investigation but on an observation of a violation being committed in his presence, thus requiring the observations to meet the probable-cause standard.145 Houghton urged the court to approve this dual standard and hold that an investigative stop may be based on reasonable suspicion but a stop for an observed violation must be based on probable cause.

    The court rejected the dual standard, reasoning that prevailing law holds that “reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops.”146 Applying Berkemer v. McCarty, the court reasoned that the detention of a motorist pursuant to a traffic stop is “presumptively temporary and brief.”147

    Applying the rationale of Terry v. Ohio, the court found that weighed against the public interest in safe roads, the temporary and brief detention of a traffic stop is an appropriate manner in which a police officer may approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.148

    Revisiting an issue that has seen significant development over the past year, the court then considered whether a seizure based on an “objectively reasonable mistake of law” violates the constitutional protections against searches and seizures contained in the Fourth Amendment to the U.S. Constitution and article I, section 11 of the Wisconsin Constitution.149 In State v. Brown150 and Longcore,151 Wisconsin courts had held that a seizure predicated on a police officer’s mistake of law was invalid under the Fourth Amendment.

    Longcore involved a traffic stop made on the mistaken belief that a car with a missing rear window violated Wis. Stat. section 347.43(a), which required safety glass in all cars. The officer pulled the car over and discovered the driver was operating with a suspended license. The circuit court held the stop was valid on the basis that the officer’s interpretation of the traffic regulation was reasonable. The court of appeals reversed, holding that because no violation of the traffic laws in fact occurred, there could be no probable cause of a violation. Longcore held that a lawful stop cannot be predicated on a mistake of law.152

    In Brown, the court was faced with a similar situation. Decided in 2014, Brown held that a seizure predicated on a police officer’s mistake of law is invalid under the Fourth Amendment. Police officers stopped Brown’s vehicle because of the belief that an unlit bulb in the car’s tail lamp violated Wis. Stat. section 347.13. The officers searched the vehicle and found a concealed firearm.

    The Brown court held there was no probable cause or reasonable suspicion to stop Brown’s vehicle and therefore evidence from the search should have been suppressed. The court applied prior case law to hold that if the officers’ interpretation of the law were incorrect, the stop would be unconstitutional “because a lawful stop cannot be predicated upon a mistake of law.”153 The court concluded that Brown’s tail light did not violate the statute because having only one unlit bulb does not by itself constitute a violation.

    The U.S. Supreme Court ruled to the contrary in December 2014 in Heien. In Heien, the U.S. Supreme Court considered the issue of a seizure premised on a police officer’s mistake of law. In that case, a North Carolina police officer stopped a vehicle because of an inoperable brake light. When issuing the written warning for the broken light, the officer became suspicious and asked for and obtained consent to search the vehicle, leading to the discovery of a bag of cocaine. In fact, having only one operable brake light was not a violation of North Carolina law.

    In Heien, the Supreme Court considered whether the officer’s mistake of law could have provided the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. The Supreme Court held that an objectively reasonable mistake of law could give rise to reasonable suspicion for the traffic stop. Because the officer’s mistake about the brake-light law was reasonable, the stop was lawful under the Fourth Amendment. The Supreme Court reasoned that “[t]o be reasonable is not to be perfect”; the Fourth Amendment allows for some mistakes on the part of governmental officials, giving them “fair leeway for enforcing the law in the community’s protection.”154

    In Houghton, the Wisconsin Supreme Court took the opportunity to revisit Brown and Longcore in light of Heien. The court first noted that Brown cited federal court case law holding that a mistake of law cannot provide the basis for a traffic stop. However, Heien abrogated those cases.155 The court has “traditionally understood the Wisconsin Constitution’s provision on search and seizure to be coextensive with the Fourth Amendment.”156 The relevant portions of the federal and state constitutions regarding searches and seizures are “virtually identical.” The court’s “standard practice dictates that we interpret the search and seizure provision of the Wisconsin Constitution consistently with the search and seizure provision of the United States Constitution.”157

    Accordingly, the court adopted Heien as a controlling interpretation of the Fourth Amendment by the U.S. Supreme Court, holding that “an objectively reasonable mistake of law by a police officer can form the basis for reasonable suspicion to conduct a traffic stop. All Wisconsin cases holding otherwise are hereby overruled to the extent they conflict with this holding.”158

    Finally, the court considered the traffic statutes to determine whether there was an objectively reasonable mistake of law. Regarding the items on the windshield, Wis. Stat. section 346.88 requires an unobstructed windshield. The court noted that subsection (3)(a) prohibits signs, posters, or other nontransparent materials or things of a similar nature on the front windshield of a car and that subsection (3)(b) prohibits the placement of items on a windshield that would “obstruct the driver’s clear view through the windshield.”

    Although finding the question a “close case,” the court rejected the state’s argument that these provisions create an absolute prohibition of any items on a vehicle’s front windshield. Subsection (3)(a) prohibits specific items from the windshield. An item violates subsection (3)(b) only if it constitutes a “material obstruction,” even if minor. To be an obstruction, an item must have more than a de minimus effect on the driver’s clear view.159

    The court then turned to whether the officer made a mistake of law that was objectively reasonable. The officer interpreted the statute to prohibit the placement of any object on the front windshield. The court held that this interpretation “was objectively reasonable” because the statute had never been interpreted before and the statutory construction question was a close call.160

    The other possible traffic violation was Houghton’s missing front license plate. The state conceded that the interpretation that a front license plate was required on Houghton’s vehicle was objectively unreasonable. The applicable statute, Wis. Stat. section 341.15, requires a front license plate only when two license plates are issued for the vehicle. The officer’s belief that the missing plate was a violation was an unreasonable mistake of law to the extent it assumed that all vehicles must have a front plate. That belief would usually be unreasonable because out-of-state cars regularly travel through Wisconsin.161

    However, if the officer observes indicia that a vehicle without a front plate is from Wisconsin – such as a Wisconsin plate on the back of the car – then the officer may have reasonable suspicion to stop the vehicle for the missing front plate. Other indicia of a Wisconsin car would be markings of a Wisconsin business.

    Applying these principles to the facts of Houghton, there was no indicia that Hougton’s car was from Wisconsin. Indeed, the back of the vehicle had a Michigan license plate.162 Accordingly, the court held that any belief of a Wisconsin law violation from the missing front license plate would be neither a reasonable mistake of law nor a reasonable mistake of fact.

    Termination of John Doe Proceeding Investigating Campaign Finance Violations

    State ex rel. Two Unnamed Petitioners v. Peterson, State ex rel. Schmitz v. Peterson, State ex rel. Three Unnamed Petitioners v. Peterson.163 The Wisconsin Supreme Court’s final decision in the 2014-15 term was in three cases that arose from a John Doe proceeding originally initiated in Milwaukee County and subsequently expanded to Iowa, Dodge, Dane, and Columbia counties. The cases were overseen by a single John Doe judge and organized by a single special prosecutor. The investigation occurred over several years and was the subject of much litigation. The investigation concerned alleged illegal campaign coordination between certain issue advocacy groups and candidates for elective office.

    To further the investigation, the special prosecutor sought and received wide-ranging subpoenas and search warrants for 29 organizations and individuals, seeking millions of documents created over several years.164 Various targets (the “Unnamed Movants”) moved to quash the subpoenas and search warrants and obtain the return of seized property. The John Doe judge, the Hon. Gregory Peterson, granted the motions to quash and ordered the return of all seized property.

    The supreme court had three cases before it. The first, Two Unnamed Petitioners, was an original action in the supreme court seeking a declaration of rights that the special prosecutor’s theory of the case was invalid under Wisconsin law. The petitioners sought a declaration confirming the ruling of the John Doe judge quashing subpoenas and requiring the return of seized items. They argued that coordinated issue advocacy of the kind alleged by the special prosecutor is not regulated under Wis. Stat. chapter 11, the state campaign finance law.165

    In the second case, Schmitz v. Peterson, the special prosecutor sought a supervisory writ and an appeal from the judge’s decision, arguing that Judge Peterson improperly quashed the subpoenas and search warrants because the records in the John Doe investigation establish a reasonable belief that the Unnamed Movants violated state campaign finance law.166 The supreme court granted a petition to bypass the court of appeals to decide the petition.

    The third case was a petition for a supervisory writ and a review of the decision of the court of appeals, Three Unnamed Petitioners, that broadly challenged whether the John Doe proceeding could be initiated in five separate counties under a single John Doe judge and whether the special prosecutor was properly appointed. The court of appeals denied the supervisory writ.167

    In the John Doe investigation, affidavits submitted in support of search warrants alleged that there may have been coordination between campaign committees and other related independent groups in violation of Wis. Stat. chapter 11. The special prosecutor’s theory of the case was that independent groups and candidate committees worked “hand in glove” such that the independent groups became mere subcommittees of the candidate’s committee, thus triggering reporting and disclosure requirements of Wis. Stat. section 11.10(4) and the coordinated issue advocacy amounted to an unlawful in-kind contribution to the candidate committee.168

    The John Doe investigation expanded beyond Milwaukee to other counties. A single special prosecutor was appointed to oversee all the investigations. In October 2013, the judge authorized 29 subpoenas duces tecum to certain Unnamed Movants. The judge also authorized search warrants for the homes and offices of other Unnamed Movants. Those warrants were executed at approximately 6 a.m. on Oct. 3, 2013, involving raids at the targets’ homes.

    The court observed that “[t]he breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing.” Millions of documents were subpoenaed or seized. In executing the search warrants, deputies seized business papers, computer equipment, phones, and other devices. The documents were obtained without regard to their relevance to the alleged violations of Wis. Stat. chapter 11.169

    Judge Peterson granted motions to quash the subpoenas and the petitions to return the seized property on Jan. 10, 2014. He held that the subpoenas do not show probable cause that the moving parties committed any violation of the campaign finance laws and that he was “persuaded the statutes only prohibit coordination by candidates and independent organizations for a political purpose, and political purpose, with one minor exception here … requires express advocacy. There is no evidence of express advocacy.”170

    Judge Peterson reasoned that before there can be “coordination,” there must be “political purposes.” Without “political purposes, coordination is not a crime.” Acts are for “political purposes” when they are made to influence the recall or retention of a person holding office. Acts for “political purposes” include making a communication that expressly advocates the recall or retention of a clearly identified candidate.

    Judge Peterson noted that the prosecutor is not claiming that any of the independent organizations “expressly advocated. Therefore, the subpoenas failed to show probable cause that a crime was committed.” The same conclusions apply to the search warrants. Further, Judge Peterson held that the subpoenas were not valid because they were based on an invalid interpretation of law.171

    In Two Unnamed Petitioners, the original action, the unnamed petitioners argued that Judge Peterson correctly quashed the subpoenas and search warrants. The supreme court interpreted the term “political purposes” in Wis. Stat. section 11.01(16). The court held that under the First Amendment of the U.S. Constitution and article I, section 3 of the Wisconsin Constitution, “political purposes” is constitutionally overbroad and vague if it is not given a limiting construction and applied only to express advocacy and its functional equivalent.172 This conclusion invalidated the special prosecutor’s theory of the case and ended the John Doe investigation. Accordingly, the court granted the Unnamed Movants’ requested relief.

    The supreme court first discussed the principles underlying the First Amendment. A “major purpose” of the First Amendment is to protect “the free discussion of governmental affairs,” including the discussion of political candidates. The U.S. Supreme Court has thus held that the First Amendment “‘has its fullest and most urgent application precisely to the conduct of campaigns for political office.’” Political speech is a “fundamental right” that is “afforded the highest level of protection.”173 As a result, the court explained, it must conduct a “close examination” of the specificity of statutory limitation when it imposes criminal penalties in an area involving such fundamental First Amendment interests.

    The government may regulate and impose burdens on free speech in the political context in certain limited circumstances. In the context of campaign finance, these permitted regulations include disclosure and reporting requirements and contribution limits on candidates. These regulations are designed to prevent corruption and the appearance of corruption of public officials. The U.S. Supreme Court has drawn a distinction between discussion of issues and candidates and the advocacy of election or defeat of candidates and has held that the compelling government interest that justifies regulation of “express advocacy (the prevention of quid pro quo corruption)” might not apply to regulation of issue advocacy.174

    The Court discussed the Seventh Circuit decision in Wisconsin Right To Life Inc. v. Barland (Barland II), which interpreted the term “political purposes” under Wis. Stat. section 11.01(16). In Barland II, the court held that the government’s authority to regulate extends “‘only to money raised and spent for speech that is clearly election related [that is, express advocacy]; ordinary political speech about issues, policy, and public officials[, that is, issue advocacy,] must remain unencumbered.’” In the area of campaign finance law, the First Amendment requires a heightened degree of regulatory clarity and a “close fit” between the means chosen by the government and its end.175

    The special prosecutor alleged that the Unnamed Movants engaged in “illegally coordinated issue advocacy,” specifically that the coordination between the movants and independent groups “is so extensive” that the independent groups became subcommittees of the candidate’s campaign and that the coordinated issue advocacy amounts to an “in-kind contribution” under the Wisconsin Administrative Code. The court held that these theories, “if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues” and that the special prosecutor’s theories find no support in Wis. Stat. chapter 11.

    Further, the term “political purposes” is both overbroad and vague and thus must be interpreted to be limited to “express advocacy and its functional equivalent.” This limiting construction will ensure that “all issue advocacy will remain unencumbered.”176

    The court explained that Wis. Stat. chapter 11 regulates “disbursements” and “contributions,” and the phrase “political purposes” is used in the definitions of these terms.177 If an act is not done for “political purposes,” then it is not a “contribution” or a “disbursement” and it is not subject to regulation under chapter 11.

    The court held that the special prosecutor disregarded these principles in his conduct of the John Doe investigation. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is “beyond the reach of [Ch. 11].”

    The “lack of clarity in Ch. 11, which the special prosecutor relies upon, leads us to the unsettling conclusion that it is left to government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is ‘too much’ coordination.” If the special prosecutor’s broad theories were the law, then there is the danger that every candidate in every campaign in which an issue advocacy group participates would have their own John Doe proceeding to determine the extent of the coordination. The court concluded that “[t]his is not, and cannot, be the law in a democracy.”178

    In Barland II, the Wisconsin Government Accountability Board conceded the potential overbreadth and vagueness of the term “political purposes” and suggested a construction that would limit “political purposes” to “‘express advocacy and its functional equivalent.’” The Seventh Circuit adopted this proposed limiting construction in Barland II and the supreme court adopted this construction in its decision. The effect of this construction places “issue advocacy” beyond the reach of Wis. Stat. chapter 11.179

    Applying the limiting construction, the court held that Wis. Stat. chapter 11 did not regulate the alleged conduct of the Unnamed Movants. The special prosecutor has not alleged any “express advocacy.” And issue advocacy, “whether coordinated or not,” is beyond the reach of Wis. Stat. chapter 11. Accordingly, the court held that this conclusion “ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.” As a result, “the investigation is closed.” The court directed the special prosecutor and district attorneys to cease all activities in the investigation, return all seized property, and destroy all copies of documents obtained through the investigation.180

    In Schmitz v. Peterson, the special prosecutor sought a supervisory writ to reverse Judge Peterson’s decision to quash the subpoenas and search warrants. Applying the standard for granting a supervisory writ, the supreme court held that the special prosecutor failed to show that Judge Peterson “violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor.”

    Judge Peterson exercised his discretion under the John Doe statutes to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge’s discretionary acts, the court denied the special prosecutor’s petition for a writ and affirmed Judge Peterson’s quash order.181

    In Three Unnamed Petitioners, the court considered the Unnamed Movants’ petition for a supervisory writ challenging the original John Doe judge’s acceptance of an appointment, convening a multicounty John Doe proceeding, and appointing a special prosecutor. The court held that the judge did not violate a plain legal duty in these respects and accordingly affirmed the decision of the court of appeals.182

    Finally, Justice Prosser issued a concurring opinion in which four justices joined part IV, holding that the appointment of special prosecutor Schmitz was not legal.183 The concurring justices held that a John Doe judge does not have the statutory powers of a court. Judicial power to appoint a special prosecutor is governed by statute, Wis. Stat. section 978.045, and a theory of “inherent authority” to appoint a special prosecutor cannot be permitted to trump the statute.184

    Endnotes

    1 The 53 decisions’ total excludes attorney disciplinary opinions.

    2 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d 603.

    3 Id. ¶ 28.

    4 Id. ¶¶ 1, 19.

    5 Id. ¶ 15.

    6 Id. ¶ 18.

    7 Id. ¶¶ 3, 32.

    8 Id. ¶¶ 4, 34.

    9 Id. ¶¶ 6, 43.

    10 Id. ¶ 43.

    11 Id. ¶¶ 42, 44.

    12 2015 WI 34, 361 Wis. 2d 496, 860 N.W.2d 498.

    13 Id. ¶ 37 (quoting BG Grp. PLC v. Republic of Argentina, 134 S. Ct. 1198, 1207 (2014) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983)).

    14 Id.  (quoting 1 Larry Edmonson, Domke on Commercial Arbitration § 15:4 (3d ed. 2014)).

    15 Id.

    16 Id. ¶ 45.

    17 Id. ¶¶ 44, 45.

    18 Id. ¶ 45.

    19 Id. ¶ 46.

    20 Id.

    21 2015 WI 45, 362 Wis. 2d 100, 862 N.W.2d 879.

    22 Id. ¶¶ 2, 10.

    23 Id. ¶ 3.

    24 Id. ¶ 4.

    25 Id. ¶ 21.

    26 Id. ¶ 22 (citing Wisconsin Ice & Coal Co. v. Lueth, 213 Wis. 42, 43, 250 N.W. 819 (1933)).

    27 185 Wis. 2d 827, 837, 520 N.W.2d 93 (Ct. App.1994).

    28 Runzheimer Int’l Ltd., 2015 WI 45, ¶ 31, 362 Wis. 2d 100.

    29 2009 WI 76, ¶ 18, 319 Wis. 2d 274, 767 N.W.2d 898.

    30 Runzheimer Int’l Ltd., 2015 WI 45, ¶¶ 33, 35, 362 Wis. 2d 100.

    31 Id. ¶¶ 38, 39.

    32 Id. ¶ 49.

    33 Id. ¶ 50.

    34 Id. ¶¶ 51-54.

    35 Id. ¶ 68 (Abrahamson, C.J., concurring).

    36 Id. ¶ 85 (Abrahamson, C.J., concurring).

    37 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563.

    38 Id. ¶ 5.

    39 89 Wis. 2d 417, 279 N.W.2d 179 (1979).

    40 Journal Times, 2015 WI 56, ¶ 6, 362 Wis. 2d 577.

    41 Id. ¶ 2.

    42 Id. ¶¶ 6, 54.

    43 Id. ¶¶ 18, 19.

    44 Id. ¶¶ 20-22, 31.

    45 Id. ¶ 23.

    46 Id. ¶¶ 24, 26, 28.

    47 Id. ¶¶ 45-47, 51, 54.

    48 Id. ¶ 54.

    49 Id. ¶ 105.

    50 Id. ¶¶ 62, 69, 76.

    51 Id. ¶ 105.

    52 Id. ¶ 77.

    53 Id. ¶¶ 54, 105.

    54 Id. ¶¶ 92, 105.

    55 Id. ¶ 77.

    56 Id. ¶ 109 (Abrahamson, J., concurring).

    57 Id. ¶¶ 112, 117 (Abrahamson, J., concurring).

    58 Id. ¶ 113 (Abrahamson, J., concurring).

    59 Id. ¶ 117 (Abrahamson, J., concurring).

    60 Id. ¶ 153 (Abrahamson, J., concurring).

    61 Id. ¶¶ 155, 156 (Abrahamson, J., concurring).

    62 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602. 

    63 Id. ¶¶ 2-4, 11.

    64 113 Wis. 2d 550, 335 N.W.2d 578 (1983).

    65 Christ, 2015 WI 58, ¶¶ 5, 28, 29, 362 Wis. 2d 668.

    66 Id. ¶ 5.

    67 Id.

    68 Id. ¶ 6.

    69 Id. ¶ 18. 

    70 Id. ¶ 21.

    71 Id. ¶¶ 22-23.

    72 Id. ¶¶ 29 (quoting Hansen, 113 Wis. 2d at 560), 34, 35.

    73 130 Wis. 2d 397, 409, 388 N.W.2d 140 (1986).

    74 Christ, 2015 WI 58, ¶ 30, 362 Wis. 2d 668.

    75 217 Wis. 636, 259 N.W. 859 (1935).

    76 Christ, 2015 WI 58, ¶ 56, 362 Wis. 2d 668.

    77 Id. ¶ 46.

    78 Id. ¶ 40.

    79 Id. ¶¶ 43-44.

    80 No. 2013AP611, 2013 WL 6670582 (Wis. Ct. App. Dec. 19, 2013).

    81 Christ, 2015 WI 58, ¶ 45, 362 Wis. 2d 668.

    82 Id. ¶ 62 (quoting Hansen, 113 Wis. 2d at 560).

    83 Id. ¶ 67.

    84 Id. ¶ 68.

    85 2015 WI 20, 361 Wis. 2d 116, 860 N.W.2d 10.

    86 Id. ¶¶ 3-6.

    87 Id. ¶ 33.

    88 Id. ¶¶ 47-48.

    89 Id. ¶ 50 (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)).

    90 Id. (quoting Rock, 483 U.S. at 56).

    91 Id. ¶¶ 53, 56.

    92 Id. ¶ 54 (quoting State v. Ndina, 2009 WI 21, ¶ 29, 315 Wis. 2d 653, 761 N.W.2d 612 (internal quotations omitted)).

    93 Id. ¶ 56.

    94 Id. ¶ 57 (citing Illinois v. Allen, 397 U.S. 337 (1970)).

    95 Id. ¶ 59.

    96 Id. ¶ 60.

    97 Id. ¶ 61.

    98 Id. ¶ 62.

    99 Id. ¶ 64.

    100 Id. ¶ 73.

    101 Id.

    102 Id. ¶¶ 74, 75, 80.

    103 Id. ¶¶ 80-83.

    104 Id. ¶ 84.

    105 Id. ¶ 94.

    106 Id. ¶¶ 10, 95, 106.

    107 Id. ¶¶ 11, 96-107.

    108 2015 WI 64, 363 Wis. 2d 658, 866 N.W.2d 697.       

    109 Id. ¶¶ 1, 8.

    110 Id. ¶ 3.

    11 1Id. ¶ 20.

    112 Id. ¶ 4.

    113 Id. ¶ 21.

    114 Id. ¶¶ 5, 23.

    115 Id. ¶ 6.

    116 91 Wis. 2d 14, 48, 280 N.W.2d 725 (1979).

    117 2015 WI 64, ¶ 7, 363 Wis. 2d 658.

    118 Id. ¶¶ 8, 22.

    119 Id. ¶ 23 (quoting State v. Evans, 2004 WI 84, ¶ 20, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds byState ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900 (citations omitted)).

    120 Id. ¶ 8.

    121 Id. ¶ 24 (quoting Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965)).

    122 Id. ¶¶ 9, 27.

    123 Id. ¶ 26.

    124 Id. ¶ 10.

    125 Id. ¶ 11.

    126 Id. ¶¶ 11-12.

    127 Id. ¶ 29.

    128 Id. ¶ 30.

    129 91 Wis. 2d at 48-49.

    130 2015 WI 64, ¶ 32, 363 Wis. 2d 658.

    131 Id. ¶ 33.

    132 Id. ¶ 34.

    133 Id. ¶ 35.

    134 Id. ¶ 36.

    135 Id. ¶ 10 (citing 200 Wis. 636, 229 N.W.2d 54 (1930)).

    136 Id. ¶ 46.

    137 Id. ¶¶ 41, 47.

    138 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143.

    139 Id. ¶ 79.

    140 Id. ¶ 2.

    141 Id. ¶¶ 4, 11.

    142 Id. ¶ 16.

    143 Id. ¶ 17 (quoting 135 S. Ct. 530 (2014)).

    144 Id. ¶ 27 (citing 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996)).

    145 Id. (citing 226 Wis. 2d 1, 594 N.W.2d 612 (Ct. App. 1999)).

    146 Id. ¶ 30.

    147 Id. (quoting 468 U.S. 420, 437 (1984)).

    148 Id. (citing 392 U.S. 1 (1968)).

    149 Id. ¶ 31.

    150 2014 WI 69, ¶ 22, 355 Wis. 2d 668.

    151 226 Wis. 2d at 3-4.

    152 2015 WI 79, ¶¶ 34, 35, 364 Wis. 2d 234.

    153 Id. ¶ 39.

    154 Id. ¶ 44. (quoting 135 S. Ct. at 536).

    155 Id. ¶ 48.

    156 Id. ¶ 49.

    157 Id. ¶ 50 (quoting State v. Agnello, 226 Wis. 2d 164, 180-81, 593 N.W.2d 427 (1999)).

    158 Id. ¶ 52.

    159 Id. ¶¶ 61-62.

    160 Id. ¶¶ 70-71.

    161 Id. ¶¶ 72-73, 76.

    162 Id. ¶ 78.

    163 2015 WI 85, 363 Wis. 2d 1, 866 N.W.2d 165.

    164 Id. ¶ 2. Most of the records of the investigation and the court filings were under seal, so the court did not disclose the underlying facts.

    165 Id. ¶¶ 3, 38.

    166 Id. ¶¶ 4, 39.

    167 Id. ¶¶ 5, 37.

    168 Id. ¶¶ 16, 19, 56.

    169 Id. ¶¶ 27-29.

    170 Id. ¶ 34.

    171 Id. ¶ 36 (citing Wis. Stat. § 11.01(16)).

    172 Id. ¶ 41.

    173 Id. ¶¶ 45, 47 (quoting McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434, 1441 (2014)).

    174 Id. ¶ 48 (footnote omitted).

    175 Id. ¶¶ 50, 51 (quoting Barland II, 751 F.3d 804, 810 (7th Cir. 2014)). 

    176 Id. ¶¶ 55-57.

    177 Id. ¶ 62.

    178 Id. ¶ 64

    179 Id. ¶¶ 65, 67 (quoting Barland II, 751 F.3d at 833).

    180 Id. ¶¶ 75, 76, 135; see also id. ¶ 133 (“[O]ur conclusion today ends this unconstitutional John Doe investigation.”).

    181 Id. ¶¶ 77, 78, 99, 136.

    182 Id. ¶¶ 100, 101.

    183 Id. ¶¶ 203-239.

    184 Id. ¶ 239.


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