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    Wisconsin Lawyer
    February 01, 2016

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Law

    Switchblade Knives – Right to Bear Arms

    State v. Herrmann, 2015 WI App 97 (filed 24 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: The statute prohibiting the possession of a switchblade knife was unconstitutional.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: While showing his switchblade knife to a friend, the defendant “dropped” it and somehow lacerated his femoral artery. When responding to the 911 call, officers seized the switchblade. The defendant was charged with violating Wis. Stat. section 941.24(1) by possessing the switchblade knife. The circuit court rejected challenges to the statute’s constitutionality, convicted Herrmann, and fined him $100.

    The court of appeals reversed, holding that the statute was unconstitutional because it violated the defendant’s Second Amendment right to bear arms. Writing for the court, Judge Stark found Wis. Stat. section 941.24(1) unconstitutional as applied even under the more deferential “intermediate scrutiny” standard of review. The state failed to show that the statute protects the public from any “real” harm, as opposed to “merely conjectural” harm (¶ 12). For example, protecting the public from “surprise attacks” is hardly advanced by a statute punishing a person for possessing a switchblade in his own home – as here (¶ 13).

    Applying District of Columbia v. Heller, 554 U.S. 570 (2008), the court also observed “that the State’s total ban on the possession of switchblades significantly burdens Herrmann’s right to bear arms” by absolutely prohibiting “an entire class of arms protected by the Second Amendment even when kept or carried in the home for self-defense” (¶¶ 14, 16).

    Criminal Procedure

    Sentencing – Enhanced Misdemeanors – Bifurcated Sentences – Sentence Adjustment at 75 Percent

    State v. Anderson, 2015 WI App 92 (filed 5 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: A defendant who is convicted of an enhanced misdemeanor and who receives a bifurcated prison sentence may petition for sentence adjustment after serving 75 percent of his or her confinement term.

    SUMMARY: The question in the case is whether sentence adjustment under Wis. Stat. section 973.195 is available to reduce confinement time for persons serving an enhanced misdemeanor prison term. An enhanced misdemeanor prison term is imposed when 1) a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under Wis. Stat. section 973.01(1) (consisting of a term of confinement in prison followed by a term of extended supervision) is a possibility and 2) the court actually chooses to impose prison time (see ¶ 1).

    Wisconsin Statutes section 973.195 specifies that defendants serving bifurcated sentences for most felonies may apply for a reduction of confinement time after serving the “applicable percentage” of their confinement terms (either 85 percent or 75 percent depending on the grade of the felony); the statute does not articulate any “applicable percentage” for persons serving bifurcated sentences for enhanced misdemeanors.

    In a decision authored by Judge Lundsten, the court of appeals concluded that the legislature intended to afford persons serving time in prison for enhanced misdemeanors an opportunity for sentence adjustment (see ¶ 31) and that such individuals can petition for adjustment after serving 75 percent of their confinement terms (see ¶ 43).

    Sentencing – Consideration of Facts Related to an Expunged Conviction

    State v. Allen, 2015 WI App 96 (filed 24 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: The circuit court did not err in sentencing the defendant on new crimes when it took into account facts surrounding an expunged criminal record.

    SUMMARY: Defendant Allen was convicted of one count of homicide by intoxicated use of a motor vehicle as well as one count of injury by intoxicated use of a motor vehicle. At sentencing, the circuit court took into consideration that the defendant had previously been on probation supervision. The prior supervision was imposed following a conviction for substantial battery – a conviction that was subsequently expunged pursuant to Wis. Stat. section 973.015 (2013-14).

    On appeal, the defendant argued that the circuit court improperly considered the expunged conviction when imposing sentences for his new crimes. He relied on State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, to support his position.

    In a majority decision authored by Judge Brennan, the court of appeals rejected this argument. Leitner held that a sentencing court cannot consider “records of expunged convictions” but may consider “the facts underlying the record of conviction expunged under [Wis. Stat.] § 973.015” (¶ 14) (citation omitted).

    The defendant in this case urged that “facts” a court may consider under Leitner are limited to those facts surrounding the underlying expunged criminal act. The state responded that the “facts” a court can consider under Leitner include facts surrounding the entire underlying expunged criminal record (see ¶ 15).

    The court of appeals agreed with the state. “Here, the circuit court used the fact of Allen’s prior supervision to ‘elucidate his character’ – particularly his failure to learn of the consequences of breaking the law. The circuit court’s consideration of this fact was not an erroneous exercise of discretion…. [A] sentencing court must be permitted to consider all of the facts underlying an expunged criminal record, and not just those facts underlying the crime itself” (¶ 18) (citation omitted).

    The appellate court rejected the defendant’s argument that this holding would render Leitner meaningless. It observed that “[t]he sentencing court is still prohibited from using the record of conviction itself to enhance a sentence; the expunged record of conviction still cannot form the basis of repeater allegations; and the expunged record of conviction still may not be used to impeach a witness on cross-examination” (¶ 19).

    Judge Kessler filed a concurring opinion.

    Family Law

    Paternity – Same-sex Couples

    S.R. v. Circuit Court for Winnebago Cty., 2015 WI App 98 (filed 4 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: Parties challenging the constitutionality of various paternity statutes could not do so through an adoption action and without giving statutory notice to the Wisconsin attorney general.

    SUMMARY: A same-sex married couple gave birth to a child through artificial insemination. They brought a “joint petition for determination of parentage” through an adoption action. The circuit court denied the petition, observing that the parties were seeking not an adoption, but a declaratory judgment challenging various paternity statutes under recent federal decisions. The putative adoption action also had the effect of avoiding filing fees required for declaratory actions. Finally, the parties had not provided statutory notice to the Wisconsin attorney general, as is required by Wis. Stat. section 806.04 when parties contest the constitutionality of statutes.

    The court of appeals affirmed in an opinion authored by Judge Gundrum. It was undisputed that the parties’ adoption action did not seek an adoption (see ¶ 12). Rather, the parties’ intent was to use the adoption case to challenge the constitutionality of various statutes while avoiding the filing fees required of declaratory actions.

    Moreover, using the adoption action allowed them to proceed unilaterally in attacking the statutes, thus bypassing the Wis. Stat. section 806.04 requirement of providing notice to the attorney general. The failure to provide this notice when seeking declaratory relief on the basis that a statute is unconstitutional meant that the circuit court “was without competency to hear the matter and appropriately dismissed it” (¶ 14).


    Insured Vehicle – “Drive Other Car”

    Jackelen v. Russell, 2015 WI App 93 (filed 24 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: A nonowned vehicle was an “insured vehicle” under the policy, and coverage was not blocked by the “drive other car” exclusion.

    SUMMARY: Hope Russell’s husband, a Hertz employee, was allowed by Hertz to select any car on the Hertz lot for his own use during evenings and weekends. Hope Russell also was permitted to drive the car. While driving a Hertz vehicle one weekend, she was involved in a serious accident. The Russells owned another vehicle, a van, insured by Allstate. The Allstate policy covered nonowned vehicles, such as a Hertz vehicle, but also had a “drive other car” exclusion. The circuit court granted a declaratory judgment in favor of Allstate, finding no coverage on the Hertz vehicle.

    The court of appeals reversed in an opinion authored by Judge Curley. First, the court held that the Allstate policy’s “drive other car” exclusion requires a “vehicle specific analysis,” that is, whether the specific car driven by Hope Russell was “available or furnished for the regular use of a person insured” (¶ 17) (internal quotations omitted). The “regular use” analysis did not apply “to an entire fleet” of Hertz cars (¶ 19).

    Second, in finding that the specific vehicle was not available or furnished for Hope Russell’s regular use, the court considered “both availability for regular use and actual use” (¶ 25). On this record, the circuit court “impermissibly broadened the scope of the ‘drive other car’ exclusion by concluding that the ‘regular use’ analysis applied to the entire Hertz vehicle fleet” and included her husband’s access to it (¶ 30).

    Juvenile Law

    Repeated Sexual Assaults – Due Process – Equal Protection

    State v. Colton M. (In the Interest of Colton M.), 2015 WI App 94 (filed 3 Nov. 2015) (order published 16 Dec. 2015)

    HOLDING: A statute criminalizing repeated sexual assault of the same child was not unconstitutional as applied to the respondent, himself a juvenile.

    SUMMARY: Colton was charged in juvenile court with repeated sexual assaults of a child, D., when both were 15 years old. Colton and D. are one day apart in age. Colton had a history of sexual offenses. D. asserted that Colton assaulted him in different ways on three different occasions. On this basis Colton was found to have violated Wis. Stat. section 948.025(1)(e) for having repeatedly assaulted D. (see ¶ 5). The circuit court rejected Colton’s contention that the statute was unconstitutional as applied to him.

    The court of appeals affirmed in an opinion written by Judge Stark. The statute is not unconstitutionally vague. Conceding that a juvenile could “be both a victim and an offender” under the statute, the court upheld the circuit court’s determination that Colton had violated the statute while D. was an “unwilling participant” (¶ 11). Nor did Colton’s adjudication violate his equal protection rights. He was not “similarly situated” to D., who was not prosecuted. The record reflected D.’s unwillingness to participate in the sexual episodes (see ¶ 15).

    Moreover, prosecutors have great discretion in deciding whom to prosecute and for what. “The conscious exercise of some selectivity in the enforcement of a statute does not itself amount to an equal protection violation” (¶ 16).

    Municipal Law

    Police Powers – Special Assessments

    First State Bank v. Town of Omro, 2015 WI App 99 (filed 11 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: A municipality properly used its police power to build roads and levy assessments against some lots in a subdivision after a developer defaulted on its obligations.

    SUMMARY: The town and a developer entered into an agreement to develop a subdivision in 2004. The developer was responsible for building all roads. By 2009, the developer defaulted without having paved any roads.

    The bank foreclosed, acquiring ownership of numerous lots. By 2013, the bad condition of the roads compelled the town to use its police powers to pave them; the project was financed by special assessments levied against the lots, many of which were owned by the bank, which appealed pursuant to Wis. Stat. section 66.0703. The circuit court granted summary judgment in the town’s favor.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Reilly. It affirmed the part of the judgment ratifying the special assessments against the lots that abutted and therefore benefited from the roads. The town’s police powers validated this action, irrespective of the defunct development agreement (see ¶ 13). Specifically, the special assessment (mostly) complied with Wis. Stat. section 66.0703.

    As to three lots which did not abut the roads, however, the bank raised a material issue of fact whether those lots received any special benefit from the project
    (see ¶ 21). The opinion closely parses the town’s compliance with statutes regulating its police powers.

    Fire and Police Commissions – Power to Reconsider and Correct Error of Law

    Schoen v. Milwaukee Bd. of Fire & Police Comm’rs., 2015 WI App 95 (filed 24 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: When a quasi-judicial agency reaches a decision based on a mistake of the law it is required to apply, the agency has the inherent authority to reconsider and reach a decision by properly applying the applicable law

    SUMMARY: Schoen appealed a circuit court order affirming a decision of the City of Milwaukee’s Board of Fire and Police Commissioners (the Board) to discharge him. The Board first found that Schoen acted with excessive force, in violation of the Milwaukee Police Department Rules and Procedures. In determining the penalty, the Board, in an oral decision, initially announced a 60-day suspension for the violation. The Board reconsidered that decision before issuing its written decision, which imposed discharge as the penalty. The circuit court upheld the Board’s decision to discharge Schoen.

    The sole issue on appeal was whether the Board acted within its authority when, based on its conclusion that its earlier oral disciplinary decision was based on a mistake of law, it changed its oral decision to suspend Schoen and discharged him instead. Schoen contended that the Board had no authority to reconsider its decision, regardless of the reason.

    In a decision authored by Judge Kessler, the court of appeals affirmed. Correcting a mistake of law is neither specifically authorized nor specifically prohibited by the governing statute (Wis. Stat. § 62.50). Nonetheless the appellate court concluded that “the Board is a quasi-judicial body and was functioning as such when it held these hearings into alleged infractions of the rules and regulations of the Milwaukee Police Department” (¶ 19).

    “Where a quasi-judicial agency reaches a decision based on a mistake of the law it is required to apply, the agency has the inherent authority to reconsider and reach a decision properly applying the applicable law” (¶ 22).

    Towns – Fire Protection Fee

    Town of Hoard v. Clark Cty., 2015 WI App 100 (filed 12 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDING: A fee imposed by town ordinance for the cost of fire protection was lawful.

    SUMMARY: The question on appeal in this case is the legality of a town of Hoard ordinance, which imposes an annual charge on all property owners within the town for the cost of fire protection. Pursuant to the ordinance, the town charged Clark County, as the owner of a medical center in the town, $3,327.68 for fire protection for 2014. The town brought this action for declaratory relief in an effort to compel the county to meet its obligation under the ordinance.

    The county argued that 1) the charge to the county under the ordinance is a tax rather than a fee and the county is exempt from general taxes under Wis. Stat. section 70.11(2); and 2) even if the charge is a fee, the ordinance is not authorized under Wis. Stat. section 60.55(2)(b) because that statute only authorizes fees for fire protection services “actually provided” to a property owner and the charge imposed under the ordinance is not for services “actually provided” to the county’s property. The circuit court granted summary judgment in favor of the town.

    In a decision authored by Judge Kloppenburg, the court of appeals affirmed. It concluded that the undisputed facts demonstrate that the charge to the county is a fee – not a tax. The purpose, and not the name it is given, determines whether a governmental charge constitutes a tax. “[T]he primary purpose of a tax is to obtain revenue for the government, while the primary purpose of a fee is to cover the expense of providing a service or of regulation and supervision of certain activities” (¶ 12) (citation omitted).

    The appellate court concluded that “the [t]own demonstrated that the primary purpose of the charge is to cover the expense of providing the service of fire protection to the properties within its geographic boundaries and, therefore, the charge is a fee rather than a tax” (¶ 15).

    The appellate court further concluded that “Wis. Stat. § 60.55(2)(b) authorizes the [t]own to charge property owners a fee, set according to a written schedule established by the town board, for the cost of fire protection provided to their property, and the [t]own provided fire protection to the [c]ounty’s property” (¶ 10).

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