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    Wisconsin Lawyer
    July 28, 2016

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Civil Procedure

    Notice of Claim – Certified Mail – Personal Service

    Sorenson v. Batchelder, 2016 WI 34 (filed 12 May 2016)

    HOLDING: In an action against a state employee, a statute requiring service of a notice of claim by certified mail on the Wisconsin Attorney General (AG) was not fulfilled by personal (actual) service.

    SUMMARY: The plaintiff was involved in an automobile collision with a vehicle driven by a state employee. The plaintiff’s attorney filed a notice of claim with the AG by personal service. The circuit court denied the state’s motion to dismiss; the state argued that Wis. Stat. section 893.82(5) required that the claim be sent to the AG by certified mail but the judge reasoned that the AG had actual notice. In an unpublished opinion, the court of appeals reversed, concluding that the plain meaning of the statute required service by certified mail and that the plaintiff had failed to comply strictly with its requirement.

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

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

    The supreme court affirmed the court of appeals in a majority opinion authored by Chief Justice Roggensack. “We conclude that personal service does not comply with the plain language of § 893.82(5) because it requires service of notice of claim on the attorney general by certified mail. As § 893.82(2m) mandates strict compliance with requirements of § 893.82 in order to institute an action against a state employee,” the plaintiff’s actual service on the AG was insufficient (¶ 3).

    The “requirements of § 893.82 are not general guidelines”; rather, “a claimant must strictly comply with the words in the statute in order to proceed with his or her claim” (¶ 22). Literal compliance is required (see ¶ 24). Substantial compliance is not sufficient (see ¶ 27), even when actual notice is uncontested (see ¶ 32). The court reasoned that other cases may not be as clear cut; hence, the need for strict compliance.

    The court also rejected the argument that the plaintiff’s use of personal service constituted “stricter compliance” with the statute (¶ 38). Finally, the requirement of certified mail in all cases did not lead to an absurd result (see ¶ 43).

    Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley. The majority’s strict construction, they contended, was selective and made no practical sense. Literal compliance with the statute is not possible because the “attorney general no longer receives certified mail in his office in the Capitol” (¶ 48).

    Constitutional Law

    2011 Wisconsin Act 21 – Constitutionality

    Coyne v. Walker, 2016 WI 38 (filed 18 May 2016)

    HOLDING: 2011 Wisconsin Act 21 unconstitutionally vests the supervision of public instruction in officers who are not officers of supervision of public instruction, in violation of article X, section 1 of the Wisconsin Constitution. Consequently, Act 21 is void as applied to the Superintendent of Public Instruction (the Superintendent) and the Superintendent’s subordinates.

    SUMMARY: Plaintiffs sought a declaratory judgment that 2011 Wisconsin Act 21 (Act 21) is unconstitutional as applied to the Superintendent and the Department of Public Instruction (DPI). Among other things, Act 21 amended portions of Wis. Stat. chapter 227, which governs the procedures for administrative rulemaking and now allows the governor (and in some instances the secretary of administration) to permanently halt the rulemaking process.

    The circuit court concluded that Act 21 is unconstitutional as applied to the Superintendent because it gives superior authority over public instruction to officers who are not subordinate to the Superintendent. As a result, the circuit court permanently enjoined Gov. Scott Walker and Secretary of Administration Michael Huebsch from proceeding thereunder with respect to the Superintendent. In a published decision, the court of appeals affirmed. See 2015 WI App 21.

    The supreme court affirmed the court of appeals. In the court’s lead opinion, authored by Justice Gableman, the court held that “Act 21 is unconstitutional and therefore void as applied to the Superintendent of Public Instruction and his subordinates. Article X, § 1 requires the Legislature to vest the supervision of public instruction in officers of supervision of public instruction. The current statutory scheme requires the SPI to promulgate rules in order to supervise public instruction” (¶ 4).

    “Because Act 21 does not provide a way for the SPI and DPI to proceed with rulemaking if the Governor or Secretary of Administration withholds approval, Act 21 gives the Governor and the Secretary of Administration the power to ‘manage, direct, or oversee’ the primary means by which the SPI and DPI are required to carry out their supervisory duties. Thus, Act 21 unconstitutionally vests the supervision of public instruction in officers who are not officers of supervision of public instruction in violation of Article X, § 1. Consequently, Act 21 is void as applied to the SPI and his subordinates” (id.).

    Justice Abrahamson filed a concurring opinion in which she agreed that Act 21 is unconstitutional as applied to the Superintendent and the DPI; she did not, however, join the lead opinion (see ¶¶ 80-81).
    Justice Ann Walsh Bradley joined in Justice Abrahamson’s concurrence. Justice Prosser also filed a concurring opinion, concluding that “the challenged sections of Act 21 are as unnecessary as they are unconstitutional” (¶ 170).

    Chief Justice Roggensack filed a dissenting opinion that was joined in by Justice Ziegler and Justice Rebecca G. Bradley. Justice Ziegler filed a dissenting opinion that was joined in by Justice Rebecca G. Bradley.

    Criminal Procedure

    Joinder – Joinder of Crimes Based on Two or More Acts or Transactions

    State v. Salinas, 2016 WI 44 (filed 26 May 2016)

    HOLDING: Joinder of crimes based on two or more acts or transactions was lawful under the provisions of Wis. Stat. section 971.12(1).

    SUMMARY: This case concerns Wis. Stat. section 971.12(1), which describes when separate crimes may be joined in the same complaint. The statute provides as follows: “Two or more crimes may be charged in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.”

    The joinder statute is to be broadly construed in favor of initial joinder (see
    ¶ 31), and the initial decision to join crimes in the same prosecution is reviewed on appeal as a question of law using the de novo standard of review (¶ 30). Only the provision of Wis. Stat. section 971.12(1) relating to “2 or more acts or transactions connected together or constituting parts of a common scheme or plan” was at issue on this appeal.

    In Francis v. State, 86 Wis. 2d 554, 273 N.W.2d 310 (1979), the supreme court observed that the entire phrase “connected together or constituting parts of a common scheme or plan” has been interpreted, among other things, to mean “that the crimes charged have a common factor or factors of substantial factual importance, e.g., time, place or modus operandi, so that the evidence of each crime is relevant to establish a common scheme or plan that tends to establish the identity of the perpetrator” (¶ 37) (citation omitted).

    “Although Francis discusses joinder in terms of the crimes having substantial factors of a common scheme or plan that establish identity, the law is not so limited” (¶ 39). “In cases where identity is not at issue, however, the statutory phrase is not so limited” (id.).

    When Wis. Stat. section 971.12(1) is carefully parsed, the language “connected together or constituting parts of a common scheme or plan” actually provides for two separate bases for joining crimes arising out of two or more acts or transactions: 1) when the crimes are “connected together,” and 2) when the crimes “constitut[e] parts of a common scheme or plan.” In joinder cases following Francis, most of which are unpublished, the “common factor or factors of substantial factual importance” test employed in Francis has been used to analyze whether joinder is proper under either of the separate bases for joinder enumerated above as well as under an approach that combines the two bases (which actually happened in Francis) (see ¶ 37).

    Addressing joinder of crimes based on two or more acts or transactions that are connected together, the court in this decision noted that the phrase connected together is not defined in the statute nor has it been specifically defined by Wisconsin courts. “This is so because the words are self-defining” (¶ 42).

    However, when assessing whether separate crimes are sufficiently connected together for purposes of initial joinder, “we look to a variety of factors, including but not limited to: (1) are the charges closely related; (2) are there common factors of substantial importance; (3) did one charge arise out of the investigation of the other; (4) are the crimes close in time or close in location, or do the crimes involve the same victims; (5) are the crimes similar in manner, scheme or plan; (6) was one crime committed to prevent punishment for another; and (7) would joinder serve the goals and purposes of Wis. Stat. § 971.12” (¶ 43).

    As for the joinder of crimes based on two or more acts or transactions that constitute parts of a common scheme or plan, the court noted that it has not specifically defined common scheme or plan as that term is used in the joinder statute nor do the statutes contain a specific definition. “Because these are common words with known meanings, it is not necessary for us to provide a particular definition here” (¶ 45).

    The case against defendant Salinas involved the joinder of several sexual assault counts with witness-intimidation charges. The intimidation charges arose out of an earlier domestic violence prosecution but, in the view of the majority, are also sufficiently linked to the sexual assaults so as to be properly joined with the sexual assault charges. To understand the majority’s conclusions about the linkage, the facts (which consume almost 20 pages of the majority opinion and thus cannot be adequately recounted here) must be carefully studied.

    In the end, the majority opinion, authored by Justice Rebecca G. Bradley, concluded that joinder of the sexual assault counts and the witness-intimidation counts was proper under the connected together test, under the common scheme or plan test, and under an approach that combines these two tests (see ¶ 50).

    Justice Abrahamson filed a dissenting opinion that was joined in by Justice Ann Walsh Bradley.

    Effective Assistance of Counsel – Advising Defendant About Possible Wis. Stat. Chapter 980 Commitment

    State v. LeMere, 2016 WI 41 (filed 20 May 2016)

    HOLDING: The Sixth Amendment to the U.S. Constitution does not require defense counsel to inform a client about the possibility of a future Wis. Stat. chapter 980 commitment when the client enters a guilty plea to a sexually violent offense.

    SUMMARY: The defendant sought to withdraw his guilty plea to a charge of first-degree sexual assault of a child under the age of 13, claiming that his lawyer rendered ineffective assistance of counsel by not informing him of the possibility that he might be civilly committed under Wis. Stat. chapter 980 (Sexually Violent Persons Commitments) upon release from prison. The circuit court denied the motion and, in an unpublished decision, the court of appeals affirmed. In a majority decision authored by Justice Prosser, the supreme court affirmed the court of appeals.

    The court commenced its opinion by framing the issue on appeal as follows: “In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court of the United States held that the Sixth Amendment requires defense counsel to inform a client whether his plea to a criminal charge carries a risk of deportation. Here, we assess Padilla in a different context: Does the Sixth Amendment require defense counsel to inform a client about the possibility of civil commitment, under Wis. Stat. ch. 980, when the client enters a plea to a sexually violent offense?” (¶ 2) The majority concluded that it does not.

    Consequences that flow from a criminal conviction are often categorized as being either “direct” or “collateral.” “Direct consequences are those that have a definite, immediate, and largely automatic effect on the range of a defendant’s punishment” (¶ 31) (internal quotations omitted). “Collateral consequences, on the other hand, are indirect and do not flow from the conviction; rather, they may be contingent on a future proceeding in which a defendant’s subsequent behavior affects the determination or may rest not with the sentencing court, but instead with a different tribunal or government agency” (¶ 32) (internal quotations omitted).

    Before Padilla, state and federal courts evaluating the scope of the right to effective assistance of counsel almost unanimously concluded that the Sixth Amendment does not require lawyers to inform their clients of a conviction’s collateral consequences, including deportation (see ¶ 30). But in Padilla, the U.S. Supreme Court concluded that deportation cannot be viewed as merely a collateral consequence of a criminal conviction; the Court implied that deportation is a unique consequence of a criminal conviction rather than a collateral consequence (see ¶ 33) and that advice from counsel regarding deportation may be the basis for a claim of ineffective assistance (see ¶ 26).

    The unique character of deportation is evidenced by its severe and automatic nature (see ¶ 44), its intimate connection to the criminal process and its description by the U.S. Supreme Court as a “penalty,” (¶¶ 45-46), and its application only to noncitizens (see ¶ 47).

    In this case the majority concluded that a Wis. Stat. chapter 980 commitment “cannot be described as anything other than a classic collateral consequence” of a criminal conviction (¶ 50) and that the Sixth Amendment does not require defense counsel to inform a client about the possibility of a chapter 980 commitment (see ¶ 69).

    In so holding, the court identified many factors that differentiate the possibility of a chapter 980 commitment from the unique consequences of deportation. For example, a chapter 980 commitment is not intended to be permanent (see ¶ 53), it is rehabilitative rather than penal (see ¶ 56), the filing of a petition for a chapter 980 commitment is not inevitable for all persons convicted of sexually violent crimes (see ¶ 58), proving a chapter 980 case requires proving more than the existence of the underlying criminal conviction (see ¶ 63), and a chapter 980 commitment is not enmeshed in the criminal process (see ¶ 66).

    Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Justice Rebecca G. Bradley did not participate in this case.

    Family Law

    CHIPS – Termination of Parental Rights – Notice

    St. Croix Cty. Dep’t of Health & Human Servs. v. Michael D. (In re TPR to Matthew D.), 2016 WI 35 (filed 12 May 2016)

    HOLDING: In a termination of parental rights (TPR) proceeding arising from a continuing child in need of protection or services (CHIPS) case, the “plain language of § 48.415(2) requires that … the statutory notice requirements are satisfied when at least one of the CHIPS orders contains the written notice required under § 48.356(2).” The court withdrew language from an earlier case suggesting the statute required a “last order, six-months” wait rule.

    SUMMARY: Based on a continuing CHIPS case, the circuit court found that a young child’s mother was unfit and that it was in the child’s best interest for the court to terminate the mother’s parental rights. In an unpublished decision, the court of appeals reversed and remanded for vacation of the TPR petition because the last order the mother received did not contain written notice warning her about termination (see ¶ 13).

    The supreme court reversed the court of appeals in an opinion authored by Justice Rebecca G. Bradley. It emphasized that this is a TPR case, governed by Wis. Stat. section 48.415(2), not a CHIPS case. “The language of the TPR statute does not specifically mention the last order, the first order or use the term every order. Rather, it references one or more of the court’s written orders notifying a parent of applicable grounds for termination of parental rights” (¶ 17). Because one order, although not the last one, had included the written TPR notice, the statute’s requirements were met.

    The remainder of the majority opinion addressed Waukesha County v. Steven H. (In re TPR of Brittany Ann H.), 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, which had sparked conflicting precedent and confusion (see ¶ 18). Some courts read Steven H. as requiring that the last order filed six months before the TPR must contain the statutory notice while others did not, if sufficient notice had been otherwise provided (see ¶ 21).

    Clarifying Steven H., the court held that the “plain language of § 48.415(2) requires that in a TPR case where the underlying ground to terminate is based on continuing CHIPS, the statutory notice requirements are satisfied when at least one of the CHIPS orders contains the written notice required under § 48.356(2)” (¶ 24).
    Thus, “Steven H. did not create a bright-line ‘last order, six-months’ rule and we withdraw the language in Steven H. creating that suggestion” (id.). The holding “does not alter the statutory duty of the circuit court in CHIPS proceedings” to provide the notice required by Wis. Stat. section 48.356 (¶ 26).

    Clarity also demanded the withdrawal of language in Steven H. “suggesting the agency must wait six months after the last out-of-home placement order” before filing a TPR petition (¶ 27). Finally, the court found that sufficient evidence supported the TPR order in this case.

    Chief Justice Roggensack joined fully in the majority opinion but filed a concurrence, joined by Justice Rebecca G. Bradley, addressing the dissent’s criticism of Justice Rebecca G. Bradley’s participation in this and other cases.

    Justice Prosser also concurred, writing separately to explain how Steven H. meandered from the “strict terms” of the statute (¶ 72).

    Justice Rebecca G. Bradley’s separate concurrence addressed the dissent’s criticism of her participation in this case.

    A joint dissent by Justice Abrahamson and Justice Ann Walsh Bradley criticized the majority for departing from stare decisis in rejecting a “unanimous, workable, and settled precedent of this court” (¶ 86). The joint dissent also criticized Justice Rebecca G. Bradley’s participation in this, and other, cases (see ¶ 135).

    Public Records Law

    Pre-release Review – Employees – District Attorney

    Moustakis v. Wisconsin Dep’t of Justice, 2016 WI 42 (filed 20 May 2016)

    HOLDING: A district attorney was not an “employee” entitled to notice or pre-release judicial review of the decision by an authority to provide access to records pertaining to a “record subject.”

    SUMMARY: A newspaper sought records pertaining to a district attorney from the Wisconsin Department of Justice (DOJ). The district attorney brought an action under Wis. Stat. section 19.356(4) to restrain the DOJ from releasing the records. The circuit court dismissed the action and, in a published decision, the court of appeals affirmed. See 2015 WI App 63.

    The supreme court affirmed in a majority opinion authored by Justice Abrahamson. The case raised a single question: “Is a district attorney an ‘employee’ as that term is used in Wis. Stat. § 19.356(2)(a)1. and defined in § 19.32(1bg) such that the district attorney may maintain an action for notice and pre-release judicial review of records under § 19.356(4)?” (¶ 3). The court held that a district attorney is not an “employee” within the meaning of the narrow exception contained in those statutes (see ¶ 5).

    The court rejected two arguments supporting the district attorney’s status as a statutory “employee.” First, as the holder of a state public office, the district attorney does not qualify as an “employee” under the first part of the definition set forth in Wis. Stat. section 19.32(1bg) (see ¶ 36). Second, the court also agreed with the DOJ that the district attorney was employed by an “authority” and thus did not fall within a second category covering “an individual employed by an employer other than an authority” (¶ 48) (emphasis added).

    “Because the records at issue do not fall within the narrow exception to the general rule that a ‘record subject’ is not entitled to notice or pre-release judicial review of the decision of an authority to provide access to records pertaining to that record subject,” the district attorney could not maintain an action under Wis. Stat. section 19.356(4) to restrain the DOJ from providing the press access to the requested records (¶ 63).

    Concurring in part and dissenting in part, Chief Justice Roggensack agreed that the district attorney did not fall within the statutory exception for “employees.” She dissented on grounds that the majority chose not to address the DOJ’s obligations that must be met before the release of public records (see ¶ 66). The concurrence-dissent was joined in by Justice Ziegler and Justice Gableman.




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