In the author’s view, the cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2015-16 term.1
In Brief: Top 9 Recent Wisconsin Supreme Court Decisions
Click on the linked issue below to jump to the full description of the decision.
1. Method of Service Required for Notice-of-claim Statute
Sorenson v. Batchelder, 2016 WI 34, 368 Wis. 2d 140, 885 N.W.2d 362
ISSUE: Does delivering notice of claim by hand comply with Wis. Stat. section 893.82(5), which requires service of such notice on the attorney general by certified mail?
HOLDING: Because Wis. Stat. section 893.82(2m) mandates strict compliance with the requirements of section 893.82 to institute an action against a state employee and the statute requires service by certified mail, delivering notice of claim by personal service rather than by certified mail is ineffective.
2. Application of Modified Rate of Statutory Interest Under Wis. Stat. Section 807.01
Lands’ End Inc. v. City of Dodgeville, 2016 WI 64, 370 Wis. 2d 500, 881 N.W.2d 64
ISSUE: Where an offer of settlement was made and rejected under Wis. Stat. section 807.01 while the statute provided for 12 percent annual statutory interest on judgments and a judgment more favorable than the offer was later obtained after the statutory rate was reduced to the prime rate plus 1 percent, which interest rate applies to the judgment?
HOLDING: The amended interest rate of prime rate plus 1 percent applies to the judgment. This was not a “retroactive” application of the amendment and it did not violate the U.S. Constitution or Wis. Stat. section 990.04.
3. Grandparent Visitation Under Wis. Stat. Section 767.43(1)
S.A.M. v. Meister (In re Marriage of Meister), 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746
ISSUE: Does Wis. Stat. section 767.43(1) require a grandparent to prove a parent-child type relationship with the child to secure visitation rights, and does granting of visitation to grandparents based solely on notice to the parents and a best-interest determination intrude on parents’ fundamental due-process rights?
HOLDING: The statute does not require a grandparent who files a petition to secure visitation rights to prove that he or she has maintained a relationship similar to a parent-child relationship with the child, and granting visitation rights to grandparents when visitation is in the best interest of the child does not unconstitutionally infringe on parents’ constitutional rights.
4. State Law Prohibiting Municipal Public Employee Residency Requirements
Black v. City of Milwaukee, 2016 WI 47, 369 Wis. 2d 272, 882 N.W.2d 333
ISSUE: Does Wis. Stat. section 66.0502, which prohibits municipal residency requirements, violate the home rule amendment, Wis. Const. article XI, section 3(1), which permits cities and villages to determine their local affairs and government?
HOLDING: Section 66.0502 is permissible legislation within the home rule amendment because it meets the uniformity requirement, by uniformly banning residency requirements in any city, village, town, county, or school district.
5. Four-corners Rule of Insurance Contract Interpretation
Marks v. Houston Cas. Co., 2016 WI 53, 369 Wis. 2d 547, 881 N.W.2d 309
ISSUE: Can exclusions from coverage be considered in an analysis of whether an insurer has breached its duty to defend when the insurer declined to defend a lawsuit?
HOLDING: Because an insurance company’s obligation to defend is based on the entire insurance contract, courts can and should review exclusions to determine whether the insurer breached its duty to defend.
6. Status of Apartment Underground Parking Garage Under the Fourth Amendment
State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502
ISSUE: Did seizure of a defendant in the parking garage underneath his apartment building violate the Fourth Amendment on the ground that it was a warrantless entry into a constitutionally protected area (curtilage of the defendant’s home), and did the defendant have a reasonable expectation of privacy in the building’s underground parking garage for purposes of a Fourth Amendment search and seizure analysis?
holding: The parking garage did not constitute curtilage of the defendant’s home and thus the seizure did not occur in a constitutionally protected area; further, the defendant did not have a reasonable expectation of privacy in the parking garage.
7. Community Caretaker Function Exception to Warrant Requirement
State v. Matalonis, 2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567
ISSUE: Was a warrantless search by police of a home reasonable under the Fourth Amendment on the ground the police were performing a “bona fide community caretaker function” in searching for injured persons in the home?
HOLDING: Based on the totality of the circumstances before the police at the time, the police were exercising a bona fide community caretaker function. Given the exigent circumstances, obtaining a warrant was not feasible.
8. Review of Postconviction Retrospective Competency Determinations
State v. Smith, 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135
ISSUE: What is the standard of review on appeal of a circuit court’s “retrospective” competency determination made after an evidentiary hearing on a postconviction motion asserting that the defendant was not competent at the time of trial or sentencing?
HOLDING: Because competency determinations are functionally factual findings, they are reviewed under a “clearly erroneous” standard: whether the postconviction court’s finding of competency was “totally unsupported by facts in the record and, therefore, clearly erroneous.”
9. Use of the COMPAS Risk Assessment Tool in Sentencing
State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749.
ISSUE: Does the use of the COMPAS risk assessment at sentencing violate a defendant’s right to due process, either because defendants cannot challenge the COMPAS assessment’s scientific validity or because such assessments take gender into account?
HOLDING: If used properly, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s right to due process.
Method of Service Required Under the Notice-of-claim Statute
Sorenson v. Batchelder.2 When a plaintiff sues a state employee or officer for damages, compliance with the notice-of-claim statute, Wis. Stat. section 893.82, is a prerequisite to suit. The statute sets forth content requirements and also how notice must be served on the state. In Sorenson v. Batchelder, the supreme court accepted review to consider the service requirements of Wis. Stat. section 893.82.
Section 893.82(3) provides that “[n]o civil action or civil proceeding may be brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer’s, employee’s or agent’s duties ... unless within 120 days of the event causing the injury, damage or death” giving rise to the action or proceeding, the claimant “serves upon the attorney general written notice of a claim.…” Section 893.82(5) requires the notice to be sworn by the claimant and to be served on the attorney general “by certified mail.” Section 893.82(2m) requires the plaintiff to “compl[y] strictly with the requirements of this section.”
Lisa M. Lawless, Indiana 1992, is senior counsel at Husch Blackwell LLP, Milwaukee. The author thanks Joseph S. Diedrich, a 3L student at the U.W. Law School, for his research assistance and analysis.
Batchelder was driving a vehicle in his capacity as a state employee when he rear-ended a vehicle that in turn rear-ended Sorenson’s vehicle, and Sorenson incurred property damage and personal injuries. Within 120 days after the accident, Sorenson served notice of claim on the attorney general by hand at the attorney general’s office at the State Capitol. That service was accepted by a state employee. The next month, the state issued Sorenson a check for $241.45 as payment in full for damage while denying liability.
Two years later, Sorenson filed a negligence action against Batchelder. Batchelder moved to dismiss the action for improper service of the notice of claim, arguing that service did not strictly comply with the statute because it was provided by hand delivery rather than certified mail. The circuit court denied this motion, concluding that service was proper because the attorney general received the notice of claim. The court of appeals reversed, holding that the plain meaning of Wis. Stat. section 893.82(5) requires service by certified mail and Sorenson failed to strictly comply with this requirement.3
The supreme court agreed, affirming the court of appeals. The court held that personal service of a notice of claim does not satisfy Wis. Stat. section 893.82(5) “because [the statute] requires service of notice of claim on the attorney general by certified mail.” Further, Wis. Stat. section 893.82(2m) “mandates strict compliance with requirements of § 893.82 in order to institute an action against a state employee….”4
Because the case turned on the interpretation of Wis. Stat. section 893.82, the court first explained the general principles of statutory interpretation. If a statute’s meaning is plain, ordinarily the court stops the inquiry. A statute’s language is interpreted in its context, not in isolation but in relation to surrounding or closely related statutes; the interpretation should avoid absurd or unreasonable results. If the statute’s words have a plain, clear meaning, without ambiguity, the statute is applied according to that plain meaning.
A statute is ambiguous if it is capable of being understood reasonably in two or more senses. In that event, extrinsic sources can be consulted to determine the meaning. Extrinsic evidence such as legislative history also can be consulted to “‘confirm or verify a plain-meaning interpretation.’” Finally, the process of statutory interpretation involves “the ascertainment of meaning, not a search for ambiguity.”5
The parties agreed that the plain language of the notice-of-claim statute requires that notice be served by certified mail and that the statute requires strict compliance. The parties disagreed as to what constitutes strict compliance with the certified mail requirement.
Batchelder argued that certified mail service is the only method that strictly complies with the statute and therefore that personal service was inadequate. Sorenson argued that 1) strict compliance does not require “literal compliance” with the words of the statute, 2) hand delivery of notice fulfilled the purpose of the statute and provided the attorney general actual notice “more effectively than delivery by certified mail,” and 3) dismissal of her claim would lead to an “absurd result.”6
The court explained that the requirements of Wis. Stat. section 893.82 are not “general guidelines” but requirements with which a claimant must “strictly comply” to proceed with a claim. Strict compliance means “literal adherence to the words used in the statute.” Literal compliance with the statute “requires a claimant to serve notice of claim on the attorney general by certified mail pursuant to the plain language of § 893.82(5).” And “Sorenson’s choice of personal service is simply not service by certified mail.” Therefore, she did not strictly comply with the statute.7
Sorenson argued that providing notice by personal service fulfilled the purpose of the statute and the attorney general received actual notice of her claim. Essentially, Sorenson argued that she strictly complied with the statute by “substantially complying with it.”8
The court disagreed. The statute by its terms requires “strict” compliance, not “substantial” compliance. The court explained that Wis. Stat. section 893.82 “is not simply an actual notice statute.” The legislature “has chosen not to permit substantial compliance” and instead requires “strict compliance.” The court noted that a prior version of the statute provided for liberal construction and substantial compliance previously was sufficient, but the statute was amended to require strict compliance.9
The court rejected Sorenson’s argument that personal service constitutes “stricter compliance” or more effective service than certified mail and also rejected a federal decision holding that personal service fulfills the statute.10 Holding that personal service constitutes “stricter compliance” than service by certified mail would require the court to override the statute’s plain language. The court said that in the notice-of-claim statute, the legislature clearly had indicated certified mail as the mode of service, and when the legislature decides personal service is sufficient, it clearly says so. “Consequently, we decline to override the plain meaning of the statute and the choice of the legislature by declaring that personal service is more effective than service by certified mail.”11
Finally, the court rejected the argument that dismissal of the claim constitutes an absurd result. The statute requires strict compliance, and Sorenson could have complied. The court’s interpretation does not render the statute contextually inconsistent or contrary to its stated purpose. Requiring notice of claim by certified mail is plainly required by the statute and therefore does not bring about an absurd result. The legislature specifically chose the acceptable mode of service and the court reasoned that it could not “second guess its choice.”12
Explaining that it must enforce the statute as written, the court held that the statute “dictates the dismissal of Sorenson’s claim.” The court acknowledged that this result under the statute seems “harsh” and expressed sympathy for Sorenson’s situation. However, according to the court, the solution lies not with the court but with the legislature.13
Application of Modified Rate of Statutory Interest
Lands’ End Inc. v. City of Dodgeville.14 When the legislature amends statutes that affect litigation matters in substance or procedure, questions arise as to the effect of the statutory amendment on then-pending cases. For example, in 2011, the statutory rate of interest set forth in the offer-of-settlement statute, Wis. Stat. section 807.01, was reduced from 12 percent to the prime rate plus 1 percent.
In Lands’ End Inc. v. City of Dodgeville, the Wisconsin Supreme Court considered whether the reduced statutory interest rate applies to an offer of settlement made before the statutory rate was reduced, if the judgment was not obtained until after the rate change. Lands’ End made a statutory offer of settlement before the reduction in the statutory rate but obtained judgment after the reduction. Itargued that the application of the new, lower, statutory rate to its judgment was retroactive and that it had vested rights in the higher rate such that applying the reduced rate violated its constitutional rights under the U.S. Constitution’s Due Process and Equal Protection clauses.
This question arose in lengthy litigation between Lands’ End and the city of Dodgeville concerning the property tax assessment of the company’s corporate headquarters. Lands’ End challenged the 2008 tax assessment and sought a property tax refund. On July 1, 2009, Lands’ End made an offer of settlement to the city under Wis. Stat. section 807.01(4) for $724,000, which the city rejected. The circuit court denied Lands’ End’s motion for summary judgment and affirmed the city’s valuation.
Lands’ End appealed and the court of appeals ruled in its favor in 2013, directing the circuit court to enter judgment exceeding $724,000 in its favor plus statutory interest and other interest or costs that it may recover. Lands’ End argued for the higher statutory interest at the time of its offer of settlement (12 percent per year) and the city argued that the lower interest rate applied. The circuit court agreed, awarding interest at the prime rate plus 1 percent (then, 4.25 percent ). Lands’ End appealed and the city petitioned to bypass to the supreme court.15
The supreme court accepted the appeal on bypass and affirmed the circuit court.
The court first examined the amendment to Wis. Stat. section 807.01. Before the amendment, the statute provided that if a party made an offer of settlement and later recovered a judgment for greater than or equal to that amount, the offeror was entitled to interest on the amount recovered at the rate of 12 percent per year from the date of its offer until the judgment was paid. In 2011 the legislature amended the statute, setting the recoverable interest at an annual rate equal to 1 percent plus the applicable prime rate.16
Both versions of the statute shared three requirements for recovery of interest on a judgment: 1) an unaccepted offer of settlement, 2) recovery of a judgment, and 3) a judgment for greater than or equal to the amount of the offer. Interest cannot be imposed unless an actual judgment is entered in the case.17 Lands’ End met these three requirements and was entitled to an award of interest. The issue was the applicable rate of interest.
The court first held that applying the prime-rate-plus-1-percent rate in effect when Lands’ End recovered its judgment was not a “retroactive” application of the amended version of Wis. Stat. section 807.01 to Lands’ End’s judgment because it had not obtained the judgment before the amendment.18 The court noted that the 2011 legislation adopting the reduced statutory interest rate provided that it first applies to an execution of a judgment entered on the effective date of the subsection. Further, the amended statute did not reveal an intent that the statute apply retroactively.19
Next, the court held that the amendment did not take away or impair vested rights because the interest rate was contingent on an uncertain event in the future (recovering a judgment). At the time of the statutory amendment, Lands’ End’s right was contingent on an uncertain future event, that is, its recovery of a judgment greater than or equal to its statutory offer.20
The court rejected Lands’ End’s argument that it “perfected” or “accrued” a right to 12 percent statutory interest before the statute was amended. Under both versions of the statute, Lands’ End did not acquire a legally enforceable right to recover interest until it recovered a judgment. Therefore, a party has no right to recover interest from the date of an offer of settlement under either version of the statute unless the party recovered a judgment for as much as or more than the amount of the offer.21 And Lands’ End did not acquire the judgment while the prior version of the statute was in effect.
For these reasons, the court rejected Lands’ End’s argument that application of the prime-rate-plus-1-percent rate violated due process.22 Nor did it violate Wis. Stat. section 990.04,23 which prohibits repeal of a statute that defeats or impairs any civil liability for rights of action accrued under the statute before repeal. Because Lands’ End’s right to interest did not arise until it recovered a judgment, and Wis. Stat. section 807.01 was amended before that event, any reliance on Wis. Stat. section 990.04 was “misplaced.”24
Lands’ End also argued that application of the amended statutory interest rate violates the Equal Protection clauses of the federal and state constitutions by creating two distinct classes of persons who made an offer of settlement before the statutory amendments. One class obtained a judgment before the amendment, and the other did not. The prior class would receive the benefit of the 12 percent rate and the latter would only receive the prime-rate-plus-1-percent rate.
Because the statute does not implicate fundamental rights or a suspect classification, the court applied the rational-basis test. The court held that amending the offer-of-settlement statute to reduce the interest rate to near-market rates fulfills various legislative objectives, including to ensure fair compensation for the prevailing party and alleviate the burden of imposing liability far above market interest rates. The court reasoned that the legislature could reasonably conclude it is rational to treat persons with vested rights (judgments obtained before the amendment) differently than parties without vested rights (not obtaining judgments until after the amendment).25 Accordingly, there was no equal-protection violation.
The purpose of the offer-of-settlement statute, Wis. Stat. section 807.01, is in part to place parties in the same position they would have been in if the judgment amount had been paid immediately. The legislature tied the new interest rate to market rates, which would fairly and reasonably compensate for the loss of the time value of money.26
Lands’ Endcited Johnson v. Cintas Corp., a court of appeals decision holding that the applicable interest rate was the rate in effect at the time of the offer of settlement. Johnson held that it would be unconstitutional to apply the reduced rate to a party who made an offer when the 12 percent rate was in effect. Because its decision is contrary to Johnson, the court overruled Johnson.27
S.A.M. v. Meister (In re Marriage of Meister).28 Under Wis. Stat. section 767.43(1), people who have certain familial relationships with children or who have parent-child like relationships with children can petition to secure visitation with the children when their parents divorce. The circuit court must determine whether the visitation serves the best interest of the child. The supreme court interpreted Wis. Stat. section 767.43(1) in S.A.M. v. Meister to clarify the elements required to support a petition for grandparental visitation. Typically such petitions arise in the context of marital dissolution.
The petition in Meister was filed by the paternal grandmother, Carol Meister, in the context of the divorce of her son Jay from Nancy Meister. Carol sought visitation with her four grandchildren, Jay and Nancy’s children, after Nancy changed the terms of Carol’s informal visitation. Although she lived in Ohio, Carol had an active role in the children’s lives. She visited them in Wisconsin and they visited her in Ohio. She tutored the children during visits together and over the telephone. The children called her frequently, sometimes daily, when staying with their father.29 Carol’s petition sought continuing visits and phone contact with the children.
A family court commissioner initially granted Carol’s motion for visitation, but the circuit court denied the motion on de novo review. The court interpreted Wis. Stat. section 767.43(1) as requiring every petition to demonstrate a parent-child relationship and held that Carol’s “supportive relationship with the children did not elevate her to a parent-like role in their lives.”30
The Meister children appealed through their guardian ad litem. The court of appeals affirmed, citing Rogers v. Rogers, which interpreted Wis. Stat. section 767.43(1) to hold that grandparents filing a visitation petition must prove a parent-like relationship with the child to secure visitation.31 Applying Rogers, the court of appeals held that any person who seeks visitation rights under the statute must show a parent-child like relationship and affirmed the circuit court’s holding that Carol did not establish the necessary relationship.
Carol Meister died three weeks after the court of appeals’ decision was issued. The children filed a petition for review. The supreme court permitted the case to proceed, reasoning that it presented a question of great public importance that would occur frequently in the future.32 The court granted review to resolve the uncertainty created by the disjuncture between the plain language of Wis. Stat. section 767.43(1) and Rogers.
Wisconsin Statutes section 767.43(1) provides that on “petition by a grandparent, greatgrandparent, stepparent, or person who has maintained a relationship similar to a parent-child relationship with the child,” a court can grant reasonable visitation rights to that person upon notice to the parents and a determination by the court that “visitation is in the best interests of the child.”
Considering that plain statutory language, the court held that the element requiring a “relationship similar to a parent-child relationship” applies only to the undefined category of “persons” who petition for visitation rights. That category could include siblings, aunts or uncles, cousins, former foster parents, neighbors, or friends. Those persons must establish a parent-child type relationship to secure visitation. In contrast, under the statute, grandparents, greatgrandparents, and stepparents are not required to establish a parent-child type relationship.33
The court applied the “last-antecedent” canon of statutory construction under which qualifying or limiting clauses in a statute are to be referred to the next preceding antecedent unless the context dictates otherwise.34 Applying this rule, the phrase “who has maintained a relationship similar to a parent-child” follows the term “person.” The court held that a person seeking visitation rights must establish the parent-child type relationship “only if the person is not a grandparent, greatgrandparent, or stepparent.”35 Those persons may secure visitation if the court finds it to be in the child’s best interest. They are not required to prove a parent-child type relationship. The court in Meister therefore overruled Rogers.36
The children’s mother also argued that interpreting the statute not to require grandparents to prove a parent-child type relationship to secure visitation would unconstitutionally interfere with parents’ rights to raise their children. She argued that there must be larger barriers to usurping parents’ control than simply notice of a hearing and a best-interest inquiry. The court held that Wis. Stat. section 767.43(1) is consistent with parental constitutional rights because the consideration of a petition for visitation “requires that the deciding court give special weight to a fit parent’s opinions regarding the child’s best interest as part of any best interest determination.”37
State Statute Prohibiting Residency Requirements for Municipal Public Employees
Black v. City of Milwaukee.38 Traditionally, some Wisconsin municipalities imposed residency requirements on their employees. For example, since 1938, Milwaukee’s city charter has required city employees to reside within city limits or face termination of employment. In Black v. City of Milwaukee, the supreme court granted review of a case involving that residency requirement. In 2013, the legislature enacted Wis. Stat. section 66.0502, which prohibits cities, villages, towns, counties, and school districts from requiring their employees to reside within their jurisdictional limits. The Milwaukee residency requirement and this statute conflict.
The city claimed that it could continue to enforce its residency requirement pursuant to its home rule authority under Wis. Const. article XI, section 3(1). The home rule amendment was intended to provide municipalities with greater autonomy over local affairs while still retaining the legislature’s power to legislate. It gives municipalities the ability “to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.” Under this authority, a city can create a law that deals with its local affairs, but the legislature has the power to statutorily override the city’s law if the state statute “touches upon a matter of statewide concern or if the state statute uniformly affects every city or village.”39
Milwaukee claimed it could continue to enforce its residency requirement pursuant to its home rule authority notwithstanding Wis. Stat. section 66.0502. That requirement involved a matter of local affairs because the city has an interest in maintaining its tax base, in its employees sharing a common community investment, and in efficiently delivering services. The city argued that section 66.0502 cannot defeat the residency requirement, asserting that the statute does not “with uniformity” affect every city or village; that “uniformity” means actually affecting all municipalities “in equal measure uniformly”; and that section 66.0502 fails to satisfy the home rule amendment because it does not affect all cities in equal measure.40
The Police Association and the Fire Fighters Association contested Milwaukee’s residency requirement, arguing that residency requirements are matters primarily of state-wide concern, as the legislature provides in the statutory enactment, and that it is reasonable to presume that the legislature determined that residency requirements negatively affect the welfare of employees. They also argued that Wis. Stat. section 66.0502 trumps the city charter because it uniformly affects every city. The associations argued that the statute is facially uniform because it applies to all cities, villages, towns, counties, and school districts.41 Finally, they argued that the city unconstitutionally deprived employees of their liberty interest in being free from residency requirements.
Black presented two issues for the supreme court’s review: 1) whether Wis. Stat. section 66.0502 precludes the city from enforcing its residency requirement, and 2) whether the association members were entitled to relief and damages under 42 U.S.C. § 1983. The court held that the statute precludes the city from enforcing its residency requirement. For purposes of the home rule amendment, an enactment is uniform when it is facially uniform. The court reasoned that Wis. Stat. section 66.0502 is facially uniform because it applies to “any” city, village, town, county, or school district.42
The 2013 enactment, Wis. Stat. section 66.0502, provides that the legislature finds that public employee residency requirements “are a matter of statewide concern” and residency requirements in effect on July 2, 2013, do not apply and cannot be enforced. The city in turn passed a resolution directing officials to continue enforcing the city residency requirement and finding that section 66.0502 violates the city’s home rule authority. The city’s resolution also found that the issue of local residency is not a matter of statewide concern but a matter of local affairs and government.43
The Police Association sought a declaration that the city violated Wis. Stat. section 66.0502. The Fire Fighters Association intervened, seeking an adjudication of the constitutionality of the statute and an injunction against enforcement of the residency requirement.44
After filing suit, the associations moved for summary judgment. The circuit court held that Wis. Stat. section 66.0502 is consistent with the home rule amendment because it deals with a matter primarily of statewide concern and applies uniformly to all local government units. The statute withdrew the power to regulate residency from local governments. Finally, the city’s residency ordinance and resolution are unenforceable to the extent they fail to comply with section 66.0502. The court declined to award damages under 42 U.S.C. § 1983, holding that the city had not yet deprived anyone of the liberty interest created by section 66.0502.45
The parties appealed. The court of appeals affirmed the finding of no damage and reversed the holding regarding Wis. Stat. section 66.0502, holding that the statute does not involve a matter of statewide concern and does not affect all governmental units uniformly. The court expressed concern for the disproportionate impact of section 66.0502 on Milwaukee and that abolishing residency requirements could cause Milwaukee to suffer the same economic decline as cities such as Detroit.46
The supreme court explored the purpose of the home rule amendment. It was to confer upon cities and villages a measure of self-government not previously possessed. It permits cities and villages to determine their local affairs and government, subject only to the Wisconsin Constitution and to legislative enactments “of statewide concern as with uniformity shall affect every city or every village.”47
To review an enactment under the home rule amendment, the court applies a two-step analysis. First, it determines whether the statute concerns a matter of primarily statewide or primarily local concern. If the statute is primarily of statewide interest, the home rule amendment is not implicated and the analysis ends.
Second, if the statute concerns a matter of primarily local affairs, the court then examines whether the statute satisfies the uniformity requirement. If it does not, it violates the home rule amendment. The city argued that both elements are required to permit legislation to trump a city charter ordinance. The court rejected this argument, holding that it would require tossing out nearly a century’s worth of precedent.48
For the first step, the court considered whether the legislation was of statewide or local concern. Municipalities can regulate policy matters of purely local affairs under the home rule amendment, and state legislation that preempts or prohibits municipal regulation would be prohibited unless it was uniformly applied statewide.
If the legislation is of both statewide and local concern (a “mixed bag”), then the court must determine whether it is primarily of statewide or local concern. The court held that Wis. Stat. section 66.0502 is a mixed bag, concerning both statewide and local interests. The court did not reach whether the legislation was of primarily local or statewide concern, assuming without deciding that the statute is a matter of local affairs.49
The second step is to determine whether Wis. Stat. section 66.0502 affects every city or every village with uniformity, meaning facial uniformity, with the statute uniformly applicable to every municipality. Uniform impact is not required – merely uniform application. As the court explained: “As long as the statute, on its face, uniformly affects cities or villages throughout the State, the home rule amendment’s uniformity requirement is satisfied.”50
When the legislature wants to legislate on a matter of local affairs, it can do so if the law, on its face, uniformly affects every city or village. The court stated that Wis. Stat. section 66.0502 uniformly affects every city or village by its plain language. The statute “uniformly bans residency requirements” for any city, village, town, county, or school district. “[I]n so doing, it satisfies the home rule’s uniformity requirement.”51
The supreme court therefore held that Wis. Stat. section 66.0502 is consistent with the home rule amendment and that Milwaukee is precluded from enforcing its residency requirement. Finally, the court held that the 42 U.S.C. § 1983 claim failed because the Police Association did not show a deprivation of rights, privileges, or immunities protected by the U.S. Constitution or U.S. laws.52
Four-corners Rule of Insurance Contract Interpretation
Marks v. Houston Cas. Co.53 In the area of insurance coverage, Wisconsin law is well established that the courts apply a “four-corners” test under which the duty to defend is triggered by the allegations contained within the four corners of the complaint against the insured. In Marks v. Houston Casualty Co., the supreme court considered whether an insurer can rely on insurance policy exclusions in defending its denial of defense and resolved a conflict in the court of appeals on the role of exclusions in the determination whether an insurer has a duty to defend based on the four corners of the complaint.
In Marks, insured David Marks asked his professional liability insurer, Houston Casualty, to defend him in six lawsuits filed in 2007, 2008, and 2009 in five states. Houston Casualty informed him that it had no duty to defend him, and Marks then sued for coverage. The circuit court held the insurer had no duty to defend Marks and granted it summary judgment, based on a comparison of Marks’ insurance policy to the complaints’ allegations.
The court of appeals affirmed. The supreme court also affirmed, holding that the claims against Marks do not allege facts that, if proved, would constitute claims covered under the insurance policy. Therefore, Houston Casualty did not breach its duty to defend.54
Marks was a trustee of two trusts, ICT and ICT2, which owned a controlling interest in Titan. Houston Casualty issued a professional liability errors and omissions insurance policy to Marks. The policy provided coverage for any loss and claim expenses of the insured acting in “the profession described in Item 3 of the Declarations.” Item 3 of the Declarations identified Marks’ profession as solely “in the performance of services as the Trustee of” the ICT and ICT2, for a fee. The policy also contained a business-enterprise exclusion for liability arising out of the insured’s services or capacity as an officer, director, partner, trustee, or employee of a business enterprise not named in the declaration or a charitable organization or trust.55
The lawsuits involving Marks and Titan were filed throughout the United States. The complaints filed against Marks did not contain any language concerning ICT, ICT2, or Marks’ position as trustee of those entities. Instead, the complaints referred to Titan and Marks’ role as a member of the board of Titan and of other entities.
The circuit court granted Houston Casualty summary judgment, holding that although the allegations of the complaint fall within the insuring clause, the business-enterprise exclusion precluded coverage for the claims in the case. Therefore, Houston had not breached any duty to defend Marks. This holding was affirmed on appeal.56
The supreme court discussed general principles concerning insurance coverage and insurance contracts. “Liability insurance policies often contractually obligate an insurer both to defend and to indemnify its insured.”57 The duty to defend refers to the insurer’s responsibility to defend the insured from all actions brought against the insured based on alleged facts or circumstances falling within the purview of policy coverage, regardless of the action’s validity. An insurer’s duty to indemnify is the duty to pay all covered claims and judgments against the insured.58
Insurers and the courts make the initial determination on the duty to defend based on the four-corners rule. The duty to defend is triggered by the allegations contained within the four corners of the complaint against the insured. Where the allegations assert facts that, if proved, would constitute a covered claim, the insurer must appoint defense counsel without looking beyond the four corners.
As the court explained, only two documents are “germane to any four-corners analysis: the insurance policy and the complaint against the insured. No examination of extrinsic facts or evidence takes place.” In determining the duty to defend, the court first considers whether the insuring agreement makes an initial grant of coverage for the claims asserted. Then the court considers the policy’s exclusions to determine whether they preclude coverage.59
The court first examined the insurance policy to see if there was an initial grant of coverage for the six lawsuits. As noted, there is coverage for any loss and claim expenses of the insured acting in his capacity as trustee of ICT and ICT2. The courts below held that the business-enterprise exclusion precluded coverage when measured against the complaint’s allegations. Under that exclusion, the insurance policy “unambiguously precludes coverage for Marks’ activities as an officer or director of any business enterprise not named in the declarations.”60
None of the complaints mentioned Marks’ position as trustee with ICT or ICT2. Rather they mentioned his position as board member of Titan or other entities. The business-enterprise exclusion made clear that the policy did not provide coverage for Marks’ liability as a director or officer of Titan or other business entities not mentioned in the policy’s declarations. When Marks tendered the defense to Houston Casualty, it examined the policy and the complaints at issue and concluded that it had no duty to defend Marks based on the claims asserted.61
Marks argued that the business-enterprise exclusion did not apply because an insurer that unilaterally disclaims coverage and its duty to defend will be estopped from using policy exclusions or limiting language to litigate coverage if subsequently sued for breach of the duty to defend.62 Marks cited three cases, Radke v. Firemans Fund Insurance Co.,63 Kenefick v. Hitchcock,64 and Grube v. Daun.65
The court rejected his reliance on these cases, holding their analyses on the subject was faulty. For example, Kenefick stated a principle of law that is not accurate: that on determination of the duty to defend the court must ignore “any exclusionary or limiting terms and conditions of the policies.” The court rejected this holding, citing well-established law that “an insurance company’s obligation to defend is based on the entire contract.”66
The court also rejected the argument that an insurer that declines to provide a defense cannot rely on policy exclusions to protect itself against allegations of the duty to defend. In Marks, the circuit court properly examined the business-enterprise exclusion to determine whether Houston Casualty had breached its duty to defend.
The supreme court held that Grube, Kenefick, and Radke are “unsound in principle” and “detrimental to coherence and consistency in the law” to the extent “they suggest that exclusions may not be considered in an analysis of whether an insurer has breached its duty to defend its insured simply because the insurer declined to defend the lawsuit.” The court explicitly overruled any statements in those cases that suggest such an analysis is appropriate.67
Status of Apartment Underground Parking Garage Under the Fourth Amendment
State v. Dumstrey.68 The Fourth Amendment protects homeowners against warrantless searches and seizures in their homes.When a seizure occurs in an area outside the home on the person’s property, it is subject to Fourth Amendment protection if the area is considered to be part of the property’s “curtilage.”In State v. Dumstrey, the supreme court considered whether a parking garage underneath an apartment building constituted the curtilage of a tenant’s home such that it is protected by the Fourth Amendment.The court also considered whether a tenant has a reasonable expectation of privacy in a parking garage, thereby giving rise to Fourth Amendment protections.69
These questions arose in an operating while intoxicated (OWI) case against defendant Dumstrey. An off-duty Waukesha police officer observed Dumstrey driving erratically one evening. The officer watched the vehicle for some time and called dispatch to request a squad response to a possible intoxicated driver. The officer drove up to Dumstrey’s vehicle, making eye contact with him. The officer observed Dumstrey to be apparently intoxicated. He asked Dumstrey to pull over to await the squad car but Dumstrey did not comply. He repeated this request and Dumstrey drove away, toward his apartment complex. Dumstrey drove into a parking garage underneath one of the buildings. The officer followed him, parking his car underneath the garage door to keep it from closing.70
The officer entered the parking garage and approached Dumstrey’s vehicle. Dumstrey got out, and they had contact. After the officer showed his badge, Dumstrey stopped. The backup squad officer arrived, entered the parking garage, and asked investigative questions. Dumstrey was observed to be under the influence of alcohol. The officer arrested Dumstrey for OWI. Dumstrey later consented to a blood test, which indicated his blood-alcohol level was 0.178, more than twice the legal limit.71
Dumstrey did not challenge the fact that police had reasonable suspicion to stop him. He argued that the officers’ conduct violated the Fourth Amendment’s prohibition against unreasonable searches and seizures because it occurred during a warrantless entry into a constitutionally protected area, the curtilage of his home. Dumstrey moved to suppress, challenging the legality of the stop and subsequent arrest on the basis that his seizure occurred after a warrantless entry.72
At the suppression hearing it was established that Dumstrey lived in the apartment building above the parking garage. The building had approximately 30 tenants, and the garage had approximately 30 parking spaces. Residents paid for assigned parking places and used the garage only for parking and not for other purposes such as storage. They entered the garage only through a remote-controlled door or accessed it by an elevator from inside the apartment building.73
The circuit court denied the suppression motion, and Dumstrey pleaded guilty to second-offense OWI. The court of appeals affirmed, holding there was no Fourth Amendment violation because the parking garage did not constitute curtilage of Dumstrey’s home and he did not have a reasonable expectation of privacy in the parking garage.74
The supreme court granted review. The court first considered whether Dumstrey underwent a search or a seizure for purposes of the Fourth Amendment. There are two types of seizures. One is an investigatory “Terry” stop, in which a police officer can temporarily detain a person for purposes of investigating possible criminal behavior. For a Terry stop, there must be reasonable suspicion that a crime has occurred or is about to occur. Another type of seizure is an arrest. If police officers have probable cause to arrest, they might not need a warrant.75
Dumstrey conceded the officer had reasonable suspicion to make the stop and he did not challenge that the observations of his demeanor and odor gave rise to probable cause for arrest.
The court concluded that Dumstrey was not subjected to a search while stopped in the parking garage. He was arrested based on observations of his physical characteristics.76 However, Dumstrey was subjected to a seizure in the parking garage. The court considered whether the seizure occurred within a constitutionally protected area, thereby constituting a warrantless entry in violation of the Fourth Amendment.
Searches and seizures inside a home without a warrant are presumptively unreasonable. For a warrantless search inside a home to be legal, the state must prove that the warrantless entry was justified by exigent circumstances.The Fourth Amendment protection of a home “also extends to the curtilage of the residence.”77 “The curtilage is the area to which extends the intimate activity associated with the sanctity of a person’s home and the privacies of life,” andtherefore it has been considered “part of the home itself for Fourth Amendment purposes.” The Fourth Amendment protection against warrantless entry for arrest has also been extended to places where a person has a “legitimate expectation of privacy.”78
The court reasoned that it must separately consider whether the garage is “constitutionally protected curtilage” and whether there is a reasonable expectation of privacy in the garage. A fenced-in backyard constitutes curtilage of one’s home, thereby affording Fourth Amendment protection against warrantless entry for arrest. A basement of an apartment building was held not to be protected under the Fourth Amendment given the lack of reasonable expectation of privacy.79
An arrest outside the home can be unlawful, depending on the nature of the area. Four factors are considered to determine whether an area constitutes curtilage of a home: 1) proximity of the curtilage area to the home, 2) whether the area is included within an enclosure surrounding the home, 3) the nature of the uses to which the area is put, and 4) the steps taken by the resident to protect the area from observation by passersby. These factors are not applied mechanically but are used to assess whether the area in question is “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”80
Applying these factors in Dumstrey, the court considered the proximity of the parking garage to Dumstrey’s home. The court distinguished between the apartment building and Dumstrey’s actual home. The garage underneath the parking garage was not closely proximate to Dumstrey’s home, which does not constitute the entire apartment building. Dumstrey occupied only one of 30 units. This was quite different from a single-family home’s attached garage, which has consistently been held to be curtilage.81 In such settings, the garage is literally attached to the home itself.
The court reasoned that Dumstrey’s home could be located anywhere in the building as a whole. He took an elevator to the garage, potentially from several levels away. That was not closely proximate to the underground parking garage for Fourth Amendment purposes. The other tenants would not consider their apartments to be part of Dumstrey’s home.
As for the other curtilage factors, the parking garage was located within the same overall structure as the apartment building. The tenants’ apartments were within the building, too.82 Dumstrey’s garage is not surrounded separately from those of other tenants. Further, the use of parking in an underground garage does not warrant curtilage designation. The garage was not used to store belongings. Finally, Dumstrey could be observed in the parking garage by all the other tenants and their guests. The view of the garage was not shielded from others.83
Considering these factors, the court held that “the parking garage is not so intimately tied to Dumstrey’s home that it warrants Fourth Amendment protection as curtilage of his home.”84 The court also held that Dumstrey did not have a reasonable expectation of privacy in the parking garage for other reasons that would warrant Fourth Amendment protection against warrantless entry for arrest. Dumstrey and the building’s other individual tenants used the garage.Common areas in apartment buildings are by definition not private but shared areas. Dumstrey did not exercise dominion and control over the parking garage. Accordingly, the court held that Dumstrey did not harbor any reasonable expectation of privacy in the parking garage.85
The court held that “the parking garage underneath this apartment building does not constitute curtilage of Dumstrey’s home. We further conclude that Dumstrey has shown no reasonable expectation of privacy in the garage. Consequently, Dumstrey’s stop and subsequent arrest in the garage did not violate the Fourth Amendment’s prohibition against unreasonable seizures. Stated otherwise, the seizure did not occur after a warrantless entry into a constitutionally protected area.”86
Only six justices participated in the case, with two justices joining the lead opinion, two justices concurring in that opinion, and two justices dissenting.In the concurring opinion, Justice Prosser noted that the lead opinion leaves open the possibility of a “different conclusion if there were materially different facts.”87 He wrote separately because the opinion states the central question to be whether the parking garage underneath the apartment building constitutes curtilage of Dumstrey’s home such that it is protected by the Fourth Amendment. This characterization might imply that police cannot arrest a person on probable cause if the person is found within the curtilage of the person’s home unless the police have an arrest warrant or there is a well-recognized exception to the warrant requirement such as exigent circumstances.
According to Justice Prosser, that would be an inaccurate statement of law. Although it was not at issue in the case, Justice Prosser rejected the notion that the police cannot arrest a person on probable cause when the person is within the person’s own curtilage but not within the home. Such a broad principle “would constitute a serious mistake of law and an impractical hardship for law enforcement.”88
It should be noted that if the area surrounding the home is open to public view – such as the front yard or an unfenced back yard – there can be different standards for arrest. The law of arrest might differ from the law of search in relation to curtilage. The lead opinion cited cases for the broad proposition that the Fourth Amendment prohibits entry onto curtilage for the purpose of making a warrantless arrest. However, Justice Prosser explained that the cited cases do not foreclose all arrests on curtilage that is open to public view.
Anticipating different circumstances, Justice Prosser posited that “[s]urely, no expectation of privacy legitimately attaches to a person’s driveway or front yard, or even a backyard without special fencing, that is completely open to public view.”89 The warrantless arrest of a person in a “public place upon probable cause” does not violate the Fourth Amendment. Whatever a person knowingly exposes to the public, even in his or her own house or office, is not subject to Fourth Amendment protection.
An individual may be subject to arrest on probable cause based on matters subject to public view. Warrantless arrests have been upheld in places such as the common hallway of an apartment building or the yard, driveway, or porch or carport of a house.90
Community Caretaker Function Exception to the Warrant Requirement
State v. Matalonis.91 Each day, police officers serve various functions in carrying out their duty to protect and aid the public.They are sometimes called upon to locate and help injured persons, for example. In State v. Matalonis, the supreme court considered the “community caretaker” doctrine, an exception to the warrant requirement under the Fourth Amendment.
In Matalonis, police officers responded to a call for medical help. They encountered a battered and bloodied person, Antony Matalonis (the brother of the defendant, Charles Matalonis). Antony told the police different stories as to how he received his injuries, saying he was injured by different groups of persons or by four individuals and that he was beaten up outside a bar. Officers were told that Antony lived with his brother down the street.Antony was taken to the hospital. Police saw a blood trail in the snow outside the location to which they initially responded; the blood led to the home of Antony’s brother, Charles. Officers saw blood on the outside doors of Charles’s home. The officers heard loud banging noises once they reached Charles’s home. Charles let them in.Once inside, the officers saw more blood in the home.92
Charles was shirtless and breathing heavily when he opened the door. He appeared to be upset about something. Charles told the officers that he had gotten into a fight with Antony and Antony then left. Charles also said he lived alone. Because there was blood in the house, officers wanted to make sure no one else was injured. They directed Charles to remain seated in the living room and began looking for injured persons. The officers noticed blood in the home’s downstairs and on the stairs and the walls leading upstairs.
Once upstairs, the officers saw blood and a broken mirror on the floor. They also saw a locked door with blood spatters on it. During this search, officers noticed various pipes and utensils for smoking marijuana as well as a grinder and marijuana leaves. When outside the locked door, officers smelled a strong marijuana odor and heard a fan. The officers testified that they were interested in making sure there were no injured persons in the locked room, which was the only place they had not checked. The officers asked Matalonis for the key to the room, indicating they would have to break down the door if they were not given a key and explaining they needed to get into the room to ensure there were no injured persons there. The officers eventually obtained the key, which was in plain sight upstairs.
The officers unlocked the door and entered the room, announcing themselves. They did not discover any persons inside the room but when they opened the door they did see a large marijuana plant. The officers took evidence they saw in plain view and did not open any drawers or look for anything else.93
Charles Matalonis was charged with possession of drug paraphernalia and THC and manufacture or delivery of THC. He filed a motion to suppress the evidence, arguing that it was seized in a warrantless search of his residence without his consent. The circuit court denied the motion. Matalonis later pleaded no contest to certain charges, and others were dismissed. The court of appeals reversed the judgment and order denying the suppression motion, holding that the police officers were not exercising a bona fide community caretaker function and therefore the search violated the Fourth Amendment.94
The supreme court accepted review to consider whether the warrantless search by police of Charles Matalonis’s home, including the room secured by a locked, blood-spattered door, was reasonable under the Fourth Amendment. The court held that the officers reasonably exercised a “bona fide community caretaker function” when they searched the home. Accordingly the officers were not required to obtain a warrant before conducting the search, and the evidence of the marijuana production they obtained should not be suppressed.95
The Fourth Amendment to the U.S. Constitution and article I, section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures. The court explained that warrantless searches of homes “are presumptively unreasonable.” Police officers “wear many hats” and are charged with the duty to protect people from criminals, accidents, natural perils, and even self-harm. Police perform various functions in carrying out these duties. They may search for clues to solve crime, but they also search for missing children, parents, and incapacitated persons.96 The law of search and seizure recognizes this role. Accordingly, Wisconsin courts have held that a police officer “serving as a community caretaker to protect persons and property may be constitutionally permitted to perform warrantless searches and seizures.”97
The analysis of the community caretaker exception is the same under the U.S. and Wisconsin constitutions. The reasonableness of a search justified under the community caretaker doctrine is determined under a three-step test that considers whether 1) a search or seizure within the Fourth Amendment has occurred, 2) the police were “exercising a bona fide community caretaker function,” and 3) the public interest outweighs the intrusion on privacy such that the caretaker function was “reasonably exercised within the context of a home.”98
On the second element, whether the community caretaker function was “bona fide,” courts consider “the totality of the circumstances” at the time of the search. A police officer may be engaging in a valid community caretaker function while also having subjective law enforcement concerns. If the officer has an objective reasonable basis for the community caretaker function, that is not negated by the officer’s subjective law enforcement concerns.99
The third element requires a balancing test. Courts must consider 1) the degree of public interest and the exigency of the situation; 2) the circumstances, including the time, location, and degree of overt authority and force displayed; 3) whether an automobile is involved; and 4) the availability, feasibility, and effectiveness of alternatives to the type of intrusion actually used. Examination of these factors and consideration of reasonableness is determined not in hindsight but from the vantage point of the circumstances at the time. The question is whether the officers were engaged in a “bona fide community caretaker function” at the time. The officers’ knowledge at the time is therefore determinative.100
In Matalonis, the court held the officers were engaged in a bona fide community caretaker function when they searched the house and the locked room. The officers were responding to a medical call in the middle of the night and were confronted with a badly beaten and bloodied and highly intoxicated man (Antony Matalonis), who was so injured that he had to be taken to the hospital. The man gave inconsistent stories as to the cause of his injuries.
The officers saw blood on a door and stairway and a trail of blood, which led them to the residence in question. That residence had blood-stained doors, and officers heard loud bangs inside. Observing a significant amount of blood, the officers feared injured persons were inside the residence and called for backup. At the residence, defendant Matalonis answered the door, breathless and shirtless. He was upset and informed officers he had fought with his brother Antony, who had left. He told officers he lived alone. This story was contrary to Antony’s earlier statements.101
The officers requested and obtained entry into Matalonis’s home. Officers did so because there was blood in the house and they wanted to make sure no one else was injured. The court held that officers were engaged in a bona fide community caretaker function at the inception of the search. The officers were searching not for evidence but for injured parties. This is the quintessential community caretaker function. The court concluded the state established an objectively reasonable basis for that function. There was evidence supporting the possibility of another injured person, including blood in the house, the loud bangs heard while officers were outside, Antony’s original statement that multiple people were involved in his beating, and defendant Matalonis’s contrary statements. The officers had reason to not simply accept those statements and to explore further.102
Officers were performing the caretaker function even without knowing the identity of the other potentially injured persons. Police reasonably can check the welfare of unknown persons based on the circumstances. Considering the facts before the police in Matalonis, including the significant amounts of blood, the differing stories, and defendant’s statement he had fought with his brother Antony and that he lived alone, officers were concerned that Matalonis was not telling the truth. That, coupled with the loud noises heard before entering the home, provided an “objectively reasonable” basis for the officers to think an injured person might need their help. Accordingly, the court held, the officers were engaged in the exercise of a bona fide community caretaker function when they searched Matalonis’s home.103
The court considered whether the officers encountered evidence during the search that indicated the search was no longer necessary to fulfill the caretaker function or otherwise negated the purpose of the search. The caretaker function would have been fulfilled only after the officers checked the areas of the home where people could be located. Officers only searched in areas where blood was found, and they did not search drawers or places where people could not hide.
Additionally, the fact that officers saw numerous signs of drug use did not invalidate their caretaker search. While performing the caretaker function, police might encounter evidence of criminal activity. The officers had the welfare of potentially injured persons in mind when they obtained access to the locked room in question. Officers saw blood in many places, including on the locked door.
According to the officers, when Matalonis was questioned about the room behind the locked door, his breathing became faster and he looked nervous. The officers believed that they needed to check in the locked room for injured persons to fulfill their caretaker function.104 The court held that the officers’ bona fide community caretaker search continued for the duration of the search, including their search of the locked room.
The court held that the search conducted in performing the community caretaker function was objectively reasonable. Although the intrusion was substantial, the public interest served was likewise substantial. The intrusion was limited to the needs of the situation. Given the substantial blood and the other circumstances, the situation was exigent. If a person were injured, quick medical assistance would be necessary.
Further, the officers entered the home with Matalonis’s consent. The search of the home was without consent. Officers only searched areas where people could be found and did not search drawers and other smaller areas. The degree of authority and force was considerable, with officers asking Matalonis to stay seated in his living room. This was appropriate given the legitimate community caretaking function the officers were pursuing.
Given the exigent circumstances, obtaining a warrant was not practical. In addition, rather than breaking down the locked door, officers asked Matalonis for the key. They did not frisk Matalonis or hold a gun on him. The court held that the degree of force and authority was properly tailored to the needs of the situation105 and that less intrusive alternatives were not feasible. A warrant was not a feasible alternative.
Weighing all the factors, the court held that the officers’ exercise of the community caretaker function was reasonable because the public interest in the search outweighed Matalonis’s privacy interests. The officers reasonably exercised a bona fide community caretaker function when they searched the home. They were not required to obtain a warrant before the search. Accordingly the evidence of marijuana production they obtained should not be suppressed.106
Review of Postconviction Challenge to Defendant’s Competency to Stand Trial
State v. Smith.107 Criminal defendants sometimes challenge convictions on postconviction motions, asserting after the fact that they were incompetent to stand trial. In State v. Smith, the supreme court considered the standard for reviewing such a claim in the circuit court and the standard of review on appeal.
Smith was convicted of second-degree sexual assault at trial and received a 25-year prison sentence. He filed a postconviction motion to vacate the judgment, alleging that he was incompetent at the time of trial and sentencing. The postconviction court appointed psychiatric experts to evaluate Smith and conduct a “retrospective competency evaluation.” The court found that Smith was competent to stand trial and be sentenced. The court of appeals reversed this determination, and the state petitioned the supreme court for review.
On review, the state argued that the court of appeals improperly weighed evidence regarding competency rather than deferring to the postconviction court, failed to apply the “clearly erroneous” standard of review to the lower court’s determination, and exceeded its authority by engaging in fact finding on appeal.
The supreme court agreed and thus reversed the court of appeals. The supreme court held that the court of appeals failed to apply the clearly erroneous standard of review to the court’s finding of competency and improperly weighed evidence rather than deferring to the postconviction court’s finding. Applying the proper standard of review, the supreme court held that the circuit court’s finding of competency was not clearly erroneous.
At the original trial, Smith cooperated with his counsel and he cogently answered the court’s inquiries in colloquies. On Oct. 14, 2009, a jury convicted Smith of second-degree sexual assault.At the sentencing hearing held on Dec. 14, 2009, Smith gave a statement that was rambling and discussed irrelevant subjects.108
On June 18, 2010, postconviction counsel filed a motion to determine whetherSmith was competent to assist in postconviction proceedings. Two experts testified at evidentiary hearings, after which the judge determined Smith to be incompetent and ultimately that he was unlikely to regain competency for a reasonable time. In 2011, Smith filed a postconviction motion to vacate the conviction on the ground he was allegedly incompetent to stand trial and sentencing.109
The postconviction court ordered the psychiatric experts to conduct retrospective competency evaluations to aid in determining whether Smith had been competent at the time of trial and sentencing in 2009. A hearing was held in 2012. The experts testified as to Smith’s competency based on examinations in 2010 and 2011, jail and prison records, and portions of the sentencing transcript. Smith had a substantial (at least 20-year) history of mental illness and he was diagnosed as having psychotic disorder or schizophrenia.Smith’s rambling statements at sentencing were consistent with this diagnosis. The experts opined that it was doubtful Smith was competent at trial and sentencing.
Smith’s trial counsel also testified regarding Smith’s competency. The lawyer met with Smith several times throughout the trial representation and, he testified, he never had any reason to doubt Smith’s ability to understand the proceedings. Smith was able to assist in his defense both at trial and sentencing, in jury selection, plea negotiations, and discussions regarding taking the stand at trial. At sentencing, counsel knew Smith was very animated and angry and he believed this behavior was a result of anger, not mental health issues.110
The postconviction court issued its decision. Acknowledging the experts’ competence and experience, the court noted the significant period of time between the trial and when the experts formed their opinions. Those opinions did not have the benefit of having been formed via contact with Smith at the time of trial. Further, Smith’s counsel had 25 years’ experience, and he had no reason to question Smith’s competency. Finally, the trial judge was experienced and had multiple colloquies with Smith, which never raised competency concerns.
Reasoning that competency is a judicial legal determination, and considering all these factors, the postconviction court held that Smith did not meet his burden of proving incompetency at trial and sentencing.Based on the evidence, the court concluded Smith was competent at those times.111
The court of appeals reversed. Although the court of appeals acknowledged the clearly erroneous standard of review on appeal, the court appeared to apply a less deferential standard, explaining that the issue was whether the “whole record reveals a reason to doubt Smith’s competence at trial and sentencing.” The court of appeals further reasoned that less deference would be afforded because the postconviction judge was not the same judge who observed Smith at trial and sentencing.
The court of appeals held that the postconviction court erred when it weighed more heavily the opinion of trial counsel and the trial court and “discounted” the opinions of the experts who performed the retrospective competency evaluation. The court of appeals held that the expert reports and jail and prison records provide “ample evidence that there is reason to doubt Smith’s competence at the time of trial and sentencing”and thus it vacated the conviction and ordered a new trial.112
On review, the supreme court considered the standard of review applicable to the postconviction court’s determination. Because competency is a factual finding, that review must be conducted under the “clearly erroneous” standard. The court explained that this review properly was limited to whether the finding was “totally unsupported by the factsin the record.” This standard applies equally to retrospective competency determinations.113
The supreme court rejected the court of appeals’ suggestion that deference to the postconviction court was not warranted because it did not observe Smith at trial and sentencing. The postconviction court was also entitled to deference because it conducted an evidentiary competency hearing, at which it heard and appraised the testimony of the experts and of Smith’s trial counsel. That court was the only one in a position to weigh the evidence, assess credibility, and reach a determination regarding Smith’s retrospective competency. Therefore, on appeal, review must be limited to whether the competency determination was “totally unsupported by facts in the record and, therefore clearly erroneous.”114
The supreme court acknowledged that competency to stand trial is a judicial, not a medical, determination. Although suffering from mental illness, a defendant may be able to interact adequately with his or her counsel and sufficiently understand the proceedings. A circuit court should not make a competency determination simply on the basis of “rubber stamping” a psychiatrist’s report. The circuit court must weigh the evidence of competency. The court must decide the defendant’s mental capacity to understand and assist in the proceedings at the time (that is, in the past). Thus, retrospective competency determinations are inherently difficult.
The supreme court held that on appeal from the postconviction court’s determination of competency after a retrospective competency hearing, the issue was whether that factual finding was “totally unsupported by facts in the record and, therefore, clearly erroneous.”115 The court reviewed the postconviction court’s statement of reasons, including its evaluation of the expert opinions, trial counsel’s testimony, and the trial court’s original interactions with Smith during colloquies. Based on all of these considerations, the court found that Smith had been competent at the time of trial and sentencing.
The court of appeals’ decision placed the court in the shoes of the postconviction judge, weighing the evidence to come to its own determination regarding the weight and persuasiveness of the evidence. In this regard, the court of appeals “improper[ly] weigh[ed]” evidence. The postconviction court was not required to accept the testimony of experts and rubber stamp their conclusions. The supreme court held that the record contained evidence supporting the postconviction court’s finding of competency at trial and sentencing. Therefore, its determination was not “clearly erroneous.” The court of appeals was not at liberty to reverse that determination simply because it would have weighed the evidence differently.116
Use of the COMPAS Risk Assessment Tool in Sentencing
State v. Loomis.117 The courts and judicial system use research-based tools to assist in decisions to serve the goals of the criminal justice system and to benefit defendants and the public. For example, risk assessment tools are used to help reduce recidivism and increase public safety.
In State v. Loomis, the supreme court considered COMPAS, a tool used in the Wisconsin justice system. The court accepted certification from the court of the appeals of the question whether the use of the COMPAS risk assessment at sentencing violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity or because such assessments take gender into account. The court held that if used properly, observing certain limitations and cautions, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s right to due process.118
Loomis was charged with five counts based on allegedly being the driver in a drive-by shooting. He entered a guilty plea on two of the counts, attempting to flee a traffic officer and operating a vehicle without the owner’s consent. After accepting the plea, a presentence investigation (PSI) was conducted. The PSI report included an attached COMPAS risk assessment.119
COMPAS is a risk-need assessment tool the Department of Corrections uses when making placement decisions, managing offenders, and planning treatment. It is based on information from the defendant’s criminal file and an interview with the defendant. It includes a risk assessment designed to predict recidivism and a needs assessment considering issues such as housing, employment, and substance abuse. It includes risk scores for recidivism and violent recidivism based on the general likelihood that persons with a similar history will commit another crime following release. It does not predict the likelihood of recidivism for the individual.120
Loomis’s PSI report provided a description of how the COMPAS risk assessment should be used and cautioned that the risk assessment should not be used to determine severity of the sentence or whether an individual should be incarcerated. In determining Loomis’s sentence, the circuit court considered various factors for sentencing, including Loomis’s personal characteristics, the current criminal charges, and his criminal history. The court also considered the COMPAS risk assessment. The court sentenced Loomis to the maximum penalty for the two charges for which he entered a plea.121
In its decision denying Loomis’s postconviction motion challenging sentencing, the trial judge explained that he used the COMPAS risk assessment tool to corroborate his findings and that he would have imposed the same sentence even if he had not considered the COMPAS risk scores.122
Loomis appealed the circuit court’s denial of his postconviction motion in which he requested a resentencing hearing. The supreme court affirmed this denial, rejecting Loomis’s challenge to the consideration of the COMPAS risk assessment at sentencing.123
On certification, Loomis argued that use of the COMPAS risk assessment in sentencing violated due process because it violated his right to be sentenced based on accurate information, in part because of the proprietary nature of COMPAS and his right to an individualized sentence.
Although the supreme court agreed that Loomis could not review and challenge how the COMPAS algorithm calculates risk because it is proprietary, the court observed that Loomis could review and challenge the resulting risk scores set forth in the report. Also, he could review and challenge the answers to the questions relied on in the COMPAS report to compute the risk score, including questions regarding the number of parole violations and arrests.124
The court held that the use of a COMPAS risk assessment must be subject to certain cautions and limitations, which the court specifically identified.It directed that in the future any PSI containing a COMPAS risk assessment must include certain written cautions, including, for example, cautions regarding COMPAS’s proprietary nature and the lack of cross-validation of the data for a Wisconsin population. It also must disclose that COMPAS was not developed for use at sentencing but for use in making determinations regarding treatment, supervision, and parole.125
Loomis also challenged the fact that COMPAS considers gender in its risk determinations. Men on average have higher recidivism rates than women. The court noted that Loomis did not bring an equal protection challenge. The court reasoned that there is a factual basis for COMPAS’s use of gender in its statistical determinations.Indeed, gender should be taken into account to determine recidivism rates. The court held that COMPAS’s use of gender “promotes accuracy that ultimately inures to the benefit of the justice system including defendants.” Finally, the circuit court did not rely on Loomis’s gender in determining the sentence.126
Although a COMPAS risk assessment cannot determine the sentence, a sentencing court can use a COMPAS risk assessment as a “relevant factor” for issues such as the following: “(1) diverting low-risk prison-bound offenders to a non-prison alternative; (2) assessing whether an offender can be supervised safely and effectively in the community; and (3) imposing terms and conditions of probation, supervision and responses to violations.”127 The COMPAS risk assessment should not be used to determine the severity of the sentence or whether the offender will be incarcerated. It also should not be used as an aggravating or mitigating factor in determining the severity of the sentence. It should not be used as a determinative factor in deciding whether the offender can be supervised safely and effectively in the community.128
In Loomis’s case, the use of the COMPAS risk assessment tool did not violate due process. Notably, Loomis did not argue that other non-COMPAS factors the circuit court considered were insufficient to support his sentence. The circuit court would have imposed the same sentence even without the risk assessment, and the court was aware of the assessment’s limitations. The court considered factors particular to Loomis’s crimes and his criminal history.129
The supreme court concluded that “if used properly with an awareness of the limitations and cautions, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s right to due process.”130 In the opinion, the court set forth cautions that are to be used to inform courts of due process implications. Those cautions will enable sentencing courts to better assess the weight to be given COMPAS risk scores. The recommended cautions should be provided “in part to ensure that undue weight is not given to the COMPAS risk scores.”131
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Husch Blackwell LLP, Milwaukee
1 These totals do not include the court’s decisions issued in attorney discipline and bar admission cases.
2 2016 WI 34, 368 Wis. 2d 140, 885 N.W.2d 362.
3 Id. ¶¶ 4-8.
4 Id. ¶ 3.
5 Id. ¶¶ 11-13 (quoting State v Grunke, 2008 WI 82, ¶ 22, 311 Wis. 2d 439, 752 N.W.2d 769).
6 Id. ¶¶ 20, 21.
7 Id. ¶¶ 22-24.
8 Id. ¶ 27.
9 Id. ¶¶ 28-30.
10 Id. ¶ 35 (rejecting Weis v. Board of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis. 2011)).
11 Id. ¶ 39.
12 Id. ¶¶ 40-43.
13 Id. ¶¶ 44-45.
14 2016 WI 64, 370 Wis. 2d 500, 881 N.W.2d 64.
15 Id. ¶¶ 10-18.
16 Id. ¶¶ 22-27.
17 Id. ¶ 28.
18 Id. ¶ 38.
19 Id. ¶¶ 45-46; see also id. ¶¶ 131-142, 167-176 (Ziegler, J., concurring).
20 Id. ¶¶ 49-57.
21 Id. ¶¶ 67-77.
22 Id. ¶¶ 80-82; see also id ¶¶ 143-162, 177 (Ziegler, J., concurring).
23 Id. ¶¶ 83-93; see also id. ¶¶ 182-183 (Ziegler, J., concurring).
24 Id. ¶ 88.
25 Id. ¶¶ 94-111; see also id. ¶¶ 163-166, 178-181 (Ziegler, J., concurring).
26 Id. ¶¶ 58-60.
27 Id. ¶¶ 30-34, 114.
28 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746.
29 Id. ¶ 12.
30 Id. ¶ 3.
31 Rogers v. Rogers,2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347.
32 Meister,2016 WI 22, ¶ 18 n.10, 367 Wis. 2d 447.
33 Id. ¶¶ 22, 28.
34 Id. ¶ 29.
35 Id. ¶ 30.
36 Id. ¶¶ 25-26 (Rogers held that a grandparent is required to show a parent-like relationship with the child to secure visitation under the statute).
37 Id. ¶¶ 40, 46
38 2016 WI 47, 369 Wis. 2d 272, 882 N.W.2d 333, petition for writ of certiorari filed, Sept. 21, 2016.
39 Id. ¶ 2.
40 Id. ¶ 4.
41 Id. ¶ 5.
42 Id. ¶¶ 6, 7.
43 Id. ¶¶ 10-11.
44 Id. ¶¶ 13-14.
45 Id. ¶ 15.
46 Id. ¶¶ 16-18.
47 Id. ¶ 24.
48 Id. ¶¶ 25-27.
49 Id. ¶¶ 29, 32.
50 Id. ¶¶ 33-36.
51 Id. ¶ 39.
52 Id. ¶¶ 8, 40-51.
53 2016 WI 53, 369 Wis. 2d 547, 881 N.W.2d 309.
54 Id. ¶¶ 2-3.
55 Id. ¶¶ 4-6, 8, 48.
56 Id. ¶¶ 10-17, 32-33.
57 Id. ¶ 37.
59 Id. ¶¶ 39, 40.
60 Id. ¶¶ 46-48.
61 Id. ¶¶ 51, 54.
62 Id. ¶ 61.
63 217 Wis. 2d 39, 577 N.W.2d 366 (Ct. App. 1998).
64 187 Wis. 2d 218, 522 N.W.2d 261 (Ct. App. 1994).
65 173 Wis. 2d 30, 496 N.W.2d 106 (Ct. App. 1992).
66 Marks, 2016 WI 53, ¶ 67, 369 Wis. 2d 547.
67 Id. ¶¶ 71, 72, 75.
68 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502, cert. denied, 137 S. Ct. 43 (2016).
69 Id. ¶ 4.
70 Id. ¶¶ 5-8.
71 Id. ¶¶ 8-9.
72 Id. ¶¶ 2, 10.
73 Id. ¶ 10.
74 Id. ¶ 11.
75 Id. ¶ 17.
76 Id. ¶¶ 18-20.
77 Id. ¶¶ 21-23 (internal quotations and citation omitted).
78 Id. ¶ 23 (internal quotations and citation omitted).
79 Id. ¶¶ 30, 31, 33.
80 Id. ¶ 32 (internal quotations and citations omitted).
81 Id. ¶¶ 34, 35.
82 Id. ¶¶ 37-39.
83 Id. ¶¶ 40-45.
84 Id. ¶ 46.
85 Id. ¶¶ 46, 49, 50.
86 Id. ¶ 51.
87 Id. ¶ 53 (Prosser, J., concurring).
88 Id. ¶ 55 (Prosser, J., concurring).
89 Id. ¶¶ 59, 60 (Prosser, J., concurring).
90 Id. ¶¶ 60-61 (Prosser, J., concurring).
91 2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567, cert. denied, 2016 WL 3632900 (U.S. Oct. 11, 2016).
92 Id. ¶¶ 4-7.
93 Id. ¶¶ 8-20.
94 Id. ¶¶ 21-23.
95 Id. ¶¶ 2, 3.
96 Id. ¶ 29 (internal quotations and citations omitted).
97 Id. ¶ 30 (internal quotations and citation omitted).
98 Id. ¶ 31 (internal quotations and citation omitted).
99 Id. ¶ 32.
100 Id. ¶¶ 33, 35-36.
101 Id. ¶ 38.
102 Id. ¶¶ 39-42.
103 Id. ¶¶ 43-49.
104 Id. ¶¶ 50-53.
105 Id. ¶¶ 58-62.
106 Id. ¶¶ 66-67.
107 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135, petition for writ of certiorari filed, No. 16-6409 (Oct. 13, 2016).
108 Id. ¶¶ 3-4, 6-8.
109 Id. ¶¶ 9-10.
110 Id. ¶¶ 11-20.
111 Id. ¶¶ 21-22.
112 Id. ¶¶ 23-24.
113 Id. ¶¶ 26-30.
114 Id. ¶¶ 33-34.
115 Id. ¶¶ 37-38, 47, 49, 52, 55.
116 Id. ¶¶ 54-57.
117 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, petition for writ of certiorari filed, No. 16-6387 (Oct. 5, 2016).
118 Id. ¶¶ 6, 8.
119 Id. ¶¶ 11-12.
120 Id. ¶¶ 13-15.
121 Id. ¶¶ 16-17, 19, 22.
122 Id. ¶ 28.
123 Id. ¶¶ 5, 10.
124 Id. ¶¶ 53-55.
125 Id. ¶¶ 66, 100.
126 Id. ¶¶ 75-86.
127 Id. ¶ 88.
128 Id. ¶¶ 93-98.
129 Id. ¶¶ 102-104, 106-108.
130 Id. ¶ 104.
131 Id. ¶¶ 100, 104, 105, 110.