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    Wisconsin Lawyer
    September 01, 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

    Judgments – Statutory Interest

    Lands’ End Inc. v. City of Dodgeville, 2016 WI 64 (filed 12 July 2016)

    HOLDING: The circuit court properly awarded the statutory rate of interest in effect when the party recovered the judgment – not the rate in effect when an offer of settlement was made.

    SUMMARY: This case arises out of a running property tax dispute between the city of Dodgeville and a business, Lands’ End. The company challenged the 2008 property tax assessment on its headquarters and sought a refund, arguing the city had applied an erroneous valuation methodology (see ¶ 13). In July 2009, Lands’ End made an offer to settle but the city rejected it. The court of appeals eventually ruled in favor of Lands’ End, remanding the case with directions to enter a judgment of approximately $700,000 plus statutory interest and any other interest.

    The parties promptly contested the amount of interest, Lands’ End arguing it was entitled to 12 percent based on Wis. Stat. section 807.01(4) (2009-10), which was effective when it made the offer to settle, and the city asserting the correct rate was “1 percent plus the prime rate,” as provided in the amended statute in effect when Lands’ End recovered the judgment. The circuit court agreed with the city. The supreme court granted the city’s petition to bypass the court of appeals.

    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 circuit court in a lead opinion authored by Justice Abrahamson. The applicable rate was “1 percent plus the prime rate,” as reflected in the amended version of Wis. Stat. section 807.01(4) (2013-14) (¶ 3). The supreme court expressly overruled a contrary opinion by the court of appeals in Johnson v. Cintas Corp. No. 2, 2015 WI App 14, 360 Wis. 2d 350, 860 N.W.2d 515 (see ¶ 7). It also rejected Lands’ End’s contention that this amounted to a retroactive application of the amended statute because “Lands’ End had not recovered a judgment before the amended version of the statute took effect” (¶ 38).


    “In sum,” applying the “1 percent + prime rate” formula was “not retroactive, unfair, unreasonable, or unduly burdensome to Lands’ End” (¶ 64). Nor did this outcome deprive Lands’ End of some “vested interest” (¶ 67) or violate Wis. Stat. section 990.04 (repeal of statutes) (see ¶ 83) or equal protection (see ¶ 94).

    Justice Ziegler concurred, joining “much of the lead opinion’s analysis” but writing separately to address concerns about the court’s “jurisprudence on retroactive legislation” (¶ 117).

    Justice Prosser dissented, joined by Chief Justice Roggensack, in an opinion that closely examines the history and purpose of Wis. Stat. section 807.01(4).

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

    Constitutional Law

    Lifetime Prohibition on Certification of Certain Childcare Providers – Constitutionality of Wis. Stat. Section 48.685(5)(br)5.

    Blake v. Jossart, 2016 WI 57 (filed 6 July 2016)

    HOLDINGS: Wisconsin Statutes section 48.685(5)(br)5. does not deny equal protection or substantive due process nor does it create an “impermissible irrebuttable presumption.”

    SUMMARY: The Wisconsin Shares program (see Wis. Stat. § 49.155) provides subsidies to families meeting certain financial eligibility requirements. These subsidies eventually reach childcare centers and childcare providers, if they are licensed or certified. To acquire a license or certification, a person must meet the requirements set forth in Wis. Stat. section 48.685. If a person fails to obtain a license or certification because the person is ineligible under section 48.685, the person is ineligible to receive Wisconsin Shares dollars (see ¶ 7).

    In 2009, the Wisconsin Legislature approved 2009 Wisconsin Act 76, which substantially changed the circumstances under which the Department of Children and Families (DCF) can license and certify childcare providers in Wisconsin. One provision in the new law, Wis. Stat. section 48.685(5)(br)5., imposes a lifetime ban on licensure and certification for persons who have been convicted of specific crimes. This legislation was enacted following publication of a series of newspaper articles “detailing extensive fraud and abuse by childcare providers receiving funds through Wisconsin Shares” (¶ 11).

    After Act 76 took effect, the Racine County Human Services Department (Racine County) revoked the childcare certification previously issued to Sonja Blake because she had a 1986 conviction for misdemeanor welfare fraud. Under Wis. Stat. section 48.685(5)(br)5., the conviction made Blake ineligible for certification. Blake raised various constitutional challenges to the statute, which the circuit court rejected. In an unpublished opinion, the court of appeals affirmed. In a majority decision authored by Justice Prosser, the supreme court affirmed the court of appeals.

    Addressing Blake’s various constitutional challenges, the court concluded that 1) the lifetime ban on certification “rationally advances the State’s objective of eliminating fraud against the Wisconsin Shares program” and therefore withstands Blake’s claim that the law denies equal protection on its face (¶ 45); 2) the lifetime ban also withstands Blake’s claim that the law denies equal protection as applied to her inasmuch as she pointed to no evidence that she was treated differently from similarly situated childcare providers whose licenses have been revoked under the same statute (see ¶ 46); 3) the statute does not deny Blake substantive due process (see ¶¶ 47-51); and 4) the statute does not create an “impermissible irrebuttable presumption” (see ¶¶ 52-60).

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


    Circuit Courts – Subject Matter Jurisdiction – Competency

    City of Eau Claire v. Booth, 2016 WI 65 (filed 12 July 2016)

    HOLDINGS: 1) The circuit court had subject matter jurisdiction to enter a civil forfeiture under a municipal ordinance for a first-offense operating while intoxicated (OWI) violation that factually should have been charged as a second-offense OWI. 2) The circuit court lacked competency to exercise its jurisdiction in this case but the defendant forfeited her right to challenge the court’s competency.

    SUMMARY: This case involved the murky doctrines of a circuit court’s subject matter jurisdiction and its competency to exercise that jurisdiction. Subject matter jurisdiction refers to the power of the court to decide certain types of actions. Competency is defined as the power of a court to exercise its subject matter jurisdiction in a particular case. A circuit court’s ability to exercise the subject matter jurisdiction vested in it by the constitution may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction in individual cases (see ¶ 7).

    In 1992, the Eau Claire County Circuit Court entered a civil forfeiture judgment against the defendant for a first-offense OWI. The prosecutor did not know the defendant had a countable prior OWI conviction in 1990 in Minnesota, and thus the 1992 case should have been prosecuted in Eau Claire as a criminal second-offense OWI.

    In 2014, the defendant filed a motion to reopen and vacate the 1992 conviction, arguing that it was null and void because it should have been charged as a second-offense criminal OWI and the circuit court therefore lacked subject matter jurisdiction in that case. The 1992 conviction affected the penalties the defendant was facing in 2014 for her seventh, eighth, and ninth OWI offenses that were pending in Douglas County. The circuit court voided the 1992 conviction on subject-matter-jurisdiction grounds. The city of Eau Claire appealed, and its petition to bypass the court of appeals was granted.

    In a majority decision authored by Justice Rebecca G. Bradley, the supreme court reversed the decision of the circuit court. It concluded that mischarging the 1992 OWI affected the circuit court’s competency but not its subject matter jurisdiction (see ¶ 14).

    The defendant argued inter alia that the circuit court did not have subject matter jurisdiction because, if a complaint fails to state an offense known at law, no matter civil or criminal is before the court and this results in the court being without jurisdiction in the first instance. The majority disagreed because “first-offense and second-offense OWIs are both offenses known at law as set forth in our statutes” (¶ 16). Therefore, the circuit court had subject matter jurisdiction over the 1992 first-offense OWI action, and the 1992 civil forfeiture judgment is not void for want of subject matter jurisdiction (see ¶ 19).

    The supreme court next considered the competency of the circuit court to exercise its subject matter jurisdiction in the 1992 case. As indicated above, a circuit court “may lose competency to enter judgment in a particular case if statutory requirements are not met” (¶ 21). “Statutory noncompliance results in a lack of circuit court competency ‘[o]nly when the failure to abide by a statutory mandate is “central to the statutory scheme” of which it is a part’” (id.) (citation omitted). In this case, “the circuit court lacked competency to proceed to judgment in [the defendant’s] 1992 OWI case because mischarging a second-offense OWI as a first-offense OWI results in a failure to abide by mandatory OWI penalties central to the escalating penalty scheme” (¶ 22).

    When a court lacks competency to proceed to judgment, a challenge to a circuit court’s competency can be forfeited if not timely raised in the circuit court (see ¶ 21). In this case, the majority concluded, the defendant did indeed forfeit her challenge to the circuit court’s competency “when she failed to raise any objection to the first-offense OWI charge in the original 1992 action” (¶ 26). And it declined to exercise its inherent authority “to reach a challenge that [the defendant] forfeited and then waited 22 years to raise” (¶ 25).

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

    Criminal Law

    Using a Computerized Communication System to Facilitate a Child Sex Crime –
    Wis. Stat. Section 948.075(1r) – Flip Phone

    State v. McKellips, 2016 WI 51 (filed 28 June 2016)

    HOLDINGS: 1) Use of a “flip phone” involved a “computerized communication system” that was used to facilitate a child sex crime, 2) the statute under which the defendant was prosecuted is constitutional, 3) the jury instructions were accurate, and 4) a discretionary reversal was inappropriate.

    SUMMARY: The defendant, who coached a girls’ high school basketball team, was charged with using a “computerized communication system” to facilitate a child sex crime (Wis. Stat. § 948.075(1r)), along with several other related offenses. The victim was a girl on the basketball team. The defendant bought her the flip phone so they could communicate without her parents’ knowledge. A jury convicted the defendant of the Wis. Stat. section 948.075(1r) offense and obstruction but acquitted him on other counts. In a published decision, the court of appeals reversed on grounds that the jury instructions were erroneous. See 2015 WI App 31.

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Rebecca G. Bradley. “We hold the State satisfied its burden of proving the element, use of a ‘computerized communications system,’ because McKellips used his cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that he could have sexual contact with her” (¶ 2).

    Because the term “computerized communication system” was not defined in the statute, the court turned to the standard dictionary meaning of each of the three words, which distilled to this: “A group of interacting, interrelated, or interdependent elements forming a complex whole used to exchange thoughts or messages through a computer” (¶ 34). The element does not require use of the Internet (see ¶ 39).

    The court also rejected the defendant’s argument that the statute is unconstitutionally vague (see ¶ 40). Any “person of ordinary intelligence” understands the terms used in the statute (¶ 42). For similar reasons, the statute provides an objective standard of enforcement for police and prosecutors (see ¶ 45).

    Next, the court addressed the jury instructions, even though the defendant had technically forfeited raising the issue. Although certain parts could “have been more precisely worded,” the instructions as a whole were correct and any deficiencies were harmless. (¶¶ 49, 50) Finally, the court of appeals inappropriately used its discretionary authority under Wis. Stat. section 752.35 to reverse the convictions based on the jury instructions.

    Justice Abrahamson, joined by Justice Ann Walsh Bradley, dissented. They argued that the statute is unconstitutionally vague, and the jury instructions misstated the law.

    Justice Prosser did not participate in this decision.

    Criminal Procedure

    Search and Seizure – Exclusionary Rule – Inevitable Discovery Exception

    State v. Jackson, 2016 WI 56 (filed 1 July 2016)

    HOLDING: Physical evidence implicating the defendant in the commission of a homicide was admissible pursuant to the inevitable discovery exception to the exclusionary rule.

    SUMMARY: This case arose out of a stabbing death at a hotel in the town of Grand Chute. Police officers suspected that defendant Jackson, the victim’s wife, might have been involved in the death. They brought her to the Grand Chute Police Department and interrogated her for more than six hours without giving her a Miranda warning. Jackson made incriminating statements during the interrogation. At the end of the interrogation, Jackson agreed to go with detectives to her residence, where officers were already conducting a search pursuant to a search warrant. There, she revealed the location of the knife used in the stabbing and the bloody clothing she was wearing when she left the hotel.

    The defendant moved to suppress all evidence obtained in violation of her constitutional rights. The circuit court excluded not only Jackson’s statements but also the physical evidence obtained from her house, which the circuit court deemed fruit of the poisonous tree. In a published decision, the court of appeals reversed as to the physical evidence, concluding that the state had demonstrated that the officers searching the house would inevitably have discovered the knife and clothing during their search. See 2015 WI App 49.

    In a majority decision authored by Justice Prosser that considered only whether the physical evidence should have been suppressed, the supreme court affirmed the court of appeals. The state did not challenge suppression of the defendant’s statements.

    The exclusionary rule is a judicially created mechanism through which a defendant might obtain an order suppressing evidence that was obtained in violation of his or her constitutional rights. In Nix v. Williams, 467 U.S. 431 (1984), the U.S. Supreme Court approved the inevitable discovery exception to the exclusionary rule. Under the inevitable discovery doctrine, evidence obtained during a search that is tainted by some illegal act may be admissible if the tainted evidence would have been inevitably discovered by lawful means (see ¶ 47).

    The Wisconsin Supreme Court indicated that the present case “affords us an opportunity to evaluate the conditions that must exist for the State to demonstrate that it inevitably would have discovered evidence despite the fact that officers actually obtained the evidence as a result of a constitutional violation” (¶ 48).

    In a series of decisions, the Wisconsin Court of Appeals has developed a test for the application of the inevitable discovery doctrine. The cases provide that to prove inevitable discovery, the prosecution must demonstrate 1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct; 2) the leads making discovery inevitable were possessed by the government at the time of the misconduct; and 3) before the unlawful search the government also was actively pursuing some alternative line of investigation. See, e.g., State v. Schwegler, 170 Wis. 2d 487, 490 N.W.2d 292 (Ct. App. 1992).

    In this case the supreme court concluded that the better approach is to ask the following question: “Has the prosecution met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed?” (¶ 66). Accordingly, the factors identified in Schwegler and other cases “should be regarded as important indicia of inevitability rather than indispensable elements of proof” (id.).

    Said the court, “[d]emonstrated historical facts proving active pursuit of an alternative line of investigation at the time of the constitutional violation certainly help the State to substantiate its claim that discovery of otherwise excludable evidence was inevitable. However, requiring proof in allcases of active pursuit at the time of the constitutional violation risks exclusion of evidence that the State might demonstrate that it inevitably would have discovered” (¶ 65).

    The court then applied its interpretation of the inevitable discovery exception to the present case as follows: “Given that the officers began their search of Jackson’s residence pursuant to a valid warrant based on probable cause, the State has presented considerable evidence to show that the searching officers inevitably would have discovered the knife and bloody clothing in the garage if officers had not brought Jackson back to her residence. The officers searching Jackson’s residence began inside the house and methodically searched all bags and other containers that they encountered. Because the warrant allowed them to search both indoors and in the garage, the officers intended to carefully search the garage when they finished searching the house. By searching every bag and container in the garage, the officers eventually would have searched the garbage can containing the knife and clothing” (¶ 87).

    Finally, the court declined the defendant’s invitation to articulate a rule prohibiting application of the inevitable discovery exception when the state fails to prove the absence of bad faith on the part of the officers who committed the constitutional violation (see ¶ 67). “Because inevitable discovery is an exception to the exclusionary rule, it necessarily applies after some government misconduct has occurred that would otherwise justify the suppression of evidence as an appropriate remedy” (¶ 70).

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

    Sentencing – Consideration of Defendant’s Immigration Status

    State v. Salas Gayton, 2016 WI 58 (filed 6 July 2016)

    HOLDING: The circuit court did not erroneously consider the defendant’s immigration status when sentencing him.

    SUMMARY: Defendant Salas Gayton pleaded no contest to charges of homicide by intoxicated use of a vehicle, contrary to Wis. Stat. sections 940.09(1)(a) and 939.50(3)(d), and operating without a license, causing death, contrary to Wis. Stat. sections 343.05(5)(b)3.d. and 939.51(3)(a). The case arose out of an incident in which the defendant was driving the wrong way on a freeway near downtown Milwaukee.

    At sentencing, the circuit court focused its remarks on the serious crime of drunk driving and its potential consequences. It ultimately sentenced the defendant to 15 years’ initial confinement, the statutory maximum, followed by seven years’ extended supervision. The circuit court several times mentioned Salas Gayton’s immigration status, describing him as an “illegal alien,” “here illegally,” and an “illegal” (¶ 2). However, the court made clear that any unlawful conduct related to immigration represented no more than a “minor factor” or “minor character flaw.”

    In postconviction litigation, the defendant claimed that the circuit court erroneously exercised discretion by relying on an improper factor when it considered his immigration status at sentencing. The circuit court denied the motion. In an unpublished opinion, the court of appeals affirmed.

    In a majority decision authored by Justice Prosser, the supreme court affirmed the court of appeals. Said the supreme court, “Review of the circuit court’s sentencing comments in their entirety thus satisfy us that the court imposed a harsh sentence on Salas Gayton because of his dangerous conduct operating a vehicle while intoxicated and the tragic consequences of that act. Any references to his immigration status implicated the unlawful aspects of his presence in the United States, which were directly relevant to his conviction for homicide while operating a vehicle without a driver’s license” (¶ 37).

    With respect to the driver’s license, the supreme court noted that, in Wisconsin, a noncitizen may obtain a driver’s license by presenting certain documentation that proves lawful admission to or permanent or temporary residency in the United States. “There is no indication in the record that Salas Gayton possessed any documentation that would have allowed him to obtain a driver’s license as a noncitizen; therefore, his unlawful entry into the United States prevented him from possessing a license to operate the vehicle that he used on the day of the collision” (¶ 33).

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

    Chief Justice Roggensack did not participate in this decision.

    Postconviction Motion for Plea Withdrawal – Denial of Motion Without an Evidentiary Hearing

    State v. Sulla, 2016 WI 46 (filed 14 June 2016)

    HOLDING: On the specific facts of this case, the defendant was not entitled to an evidentiary hearing on his postconviction motion to withdraw his no-contest pleas.

    SUMMARY: Defendant Sulla was charged with four felonies. Pursuant to a plea negotiation he entered no-contest pleas to two of the felonies; the others were dismissed and read into the record for purposes of sentencing and restitution. [Editors’ Note: 1) A “read-in” charge is one that will be considered by the sentencing court, but the maximum penalty for the crime of conviction will not be increased; 2) the defendant may be required to pay restitution on the read-in charge; and 3) the defendant cannot be prosecuted for the read-in charge in the future (see ¶ 35). Counsel and courts should refrain from advising defendants that a read-in charge necessitates admitting guilt (see id.).]

    After receiving a substantial sentence, the defendant moved to withdraw his pleas on the basis that they were not made in a knowing, intelligent, and voluntary fashion. In short, the defendant claimed that he was misinformed by his lawyer and that because he was misinformed, he did not understand the effect the read-in charges would have at sentencing. In his affidavit the defendant averred that his lawyer “told [him] that agreeing to the read-in offense of arson was not admitting guilt and that it was just something the Court would ‘look at’ at sentencing” (¶ 4). The circuit court denied the postconviction motion without holding an evidentiary hearing. In an unpublished opinion, the court of appeal reversed. In a majority opinion authored by Justice Gableman, the supreme court reversed the court of appeals.

    This case required the supreme court to examine the circumstances under which a circuit court may deny a defendant’s postconviction motion for plea withdrawal without holding an evidentiary hearing. To resolve this question, the court looked to the Nelson-Bentley line of cases. SeeNelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972); State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

    Nelson/Bentley instructs that if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. However, if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing” (¶ 6) (internal quotations and citations omitted).

    Applying these principles, the majority concluded that “the postconviction court was not required to hold an evidentiary hearing before it determined whether Sulla had entered his pleas in a knowing, intelligent, and voluntary fashion. Here, the postconviction court properly exercised its discretion when it denied Sulla’s postconviction motion to withdraw his plea without first holding an evidentiary hearing because it applied the proper legal standard, examined the relevant facts, and engaged in a rational decision making process” (¶ 7).

    “Moreover, when we apply the Nelson/Bentley test to this case, we conclude that Sulla is not entitled to an evidentiary hearing on his postconviction motion to withdraw his plea. The record in this case, specifically the Plea Questionnaire/Waiver of Rights form and the transcripts from the plea hearing and the sentencing hearing, conclusively demonstrates that Sulla is not entitled to relief because he was correctly informed of and understood the effect of the read-in charges at sentencing” (id.).

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

    Court’s Duty to Advise Defendant Entering Plea About Potential Punishment – Remedy When Advice Is Erroneous

    State v. Finley, 2016 WI 63 (filed 12 July 2016)

    HOLDING: The defendant is entitled to withdraw his no-contest plea because, when he entered the plea, the circuit court misinformed him about the maximum statutory penalty he faced and he did not know what the maximum penalty was.

    SUMMARY: Wis. Stat. section 971.08(1)(a) provides that before the circuit court accepts a plea of guilty or no contest, it shall, among other things, “address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.”

    According to the supreme court, “The phrase ‘potential punishment’ has not been defined in the statutes or the case law. In analyzing whether a defendant was correctly advised of the potential punishment, our cases have looked to the maximum statutory penalty, that is, the maximum sentence provided for by statute” (¶ 4).

    In this case the circuit court incorrectly advised the defendant about the maximum statutory penalty. For the crime to which he pleaded no contest, the maximum statutory penalty (including certain penalty enhancers) was imprisonment for 23.5 years. At the plea proceeding, the court advised the defendant that he faced confinement in prison for 19.5 years. [Editors’ Note: In the terminology of Wisconsin’s truth-in-sentencing laws, a sentence to prison must be bifurcated into a term of confinement in prison followed by a term of extended supervision upon release from prison. The confinement term plus the extended supervision term equals the term of imprisonment.]

    Thus, the circuit court misstated the potential punishment the defendant faced if convicted. At sentencing the court imposed the maximum term of imprisonment. In postconviction proceedings the court denied the defendant’s motion to withdraw his plea but, “in the interest of justice,” reduced his sentence to the maximum represented to him when he entered his no-contest plea. In a published decision the court of appeals reversed, holding that the defendant is entitled to withdraw his plea. See 2015 WI App 79.

    In a majority decision authored by Justice Abrahamson, the supreme court affirmed the court of appeals. It concluded that “Finley was mistakenly informed by the circuit court that he faced a different potential punishment than the maximum statutory penalty, and Finley did not know the maximum statutory penalty” (¶ 74). The supreme court held that, under these circumstances, “[t]he case law tells us that … Finley was entitled to withdraw his plea” (¶ 95). The majority rejected the state’s argument that the proper remedy in this case and others like it is a reduction of the sentence to the potential punishment the defendant was told he could receive.

    Justice Ziegler and Justice Rebecca G. Bradley filed separate dissenting opinions.

    Sentencing – Risk Assessment Tools

    State v. Loomis, 2016 WI 68 (filed 13 July 2016)

    HOLDING: When “used properly,” a circuit court’s use of a COMPAS risk assessment at sentencing complies with due process.

    SUMMARY: Loomis pleaded guilty to several felonies and agreed that other charges would be read in for purposes of sentencing. The judge ordered a presentence investigation (PSI) that included a “COMPAS risk assessment,” which is described in the opinion at paragraphs 13-15. One of the read-in offenses involved a drive-by shooting that Loomis claimed he did not participate in but which the court considered as an aggravating factor at sentencing (see ¶ 20). Dissatisfied with his sentence, Loomis filed a postconviction motion, which the court denied. The court of appeals certified the question of whether the COMPAS risk assessment violated Loomis’s due process rights.

    The supreme court affirmed in an opinion authored by Justice Ann Walsh Bradley. Two issues were before the court. The first involved the use of the COMPAS instrument at sentencing, particularly the report’s “risk assessment portion” (¶ 33). Essentially, the court held that a COMPAS risk assessment can be used at sentencing but only under tightly circumscribed conditions, which are set forth in some detail (see ¶ 35).

    The risk assessment is not to be used to determine whether the offender will be incarcerated or to calibrate the severity of the sentence. Nor are the risk scores “the determinative factor in deciding whether the offender can be supervised safely and effectively in the community” (¶ 44).

    The court also listed a host of “cautions” about the report’s “accuracy” that must accompany the risk assessment (¶ 66). Still another “caution” related to the use of “group data” when sentencing individuals (¶ 74). Loomis attacked the report’s use of gender, but the court held that this promoted accuracy and was not impermissible.

    “Although it cannot be determinative, a sentencing court may use a COMPAS risk assessment as a relevant factor for such matters as: (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” (¶ 88).

    The court again underscored the need for judges to “explain the factors in addition to a COMPAS risk assessment that independently support the sentence imposed” (¶ 99). PSIs are to contain written limitations about a COMPAS risk assessment, which the court set forth at paragraph 100.

    On this record, the circuit court did not use the risk assessment improperly. Finally, the supreme court held, in a fact-intensive discussion that applied settled law, that the circuit court properly weighed the read-in offenses when sentencing (see ¶ 119).

    Chief Justice Roggensack concurred but wrote separately to emphasize that judges may consider, but not rely on, the risk assessments when sentencing (see ¶ 123).

    Justice Abrahamson concurred, writing separately to make two points: 1) a proper sentence consists of “a meaningful process of reasoning,” and 2) the trial judge’s “lack of understanding of COMPAS was a significant problem in this case” (¶ 133).

    Sentencing – Repeal of Positive Adjustment Time – Ex Post Facto Challenge

    State ex rel. Singh v. Kemper, 2016 WI 67 (filed 13 July 2016)

    HOLDINGS: See numbered paragraphs below for the holdings.

    SUMMARY: This is a review of a published decision of the court of appeals (see 2014 WI App 43) that involved an ex post facto challenge to the repeal of Wisconsin’s positive-adjustment-time (PAT) law. In 2009 Wisconsin Act 28 (Act 28) (effective Oct. 1, 2009), the legislature authorized certain persons serving prison sentences to earn PAT (and thus early release) for good behavior. The statute further provided that inmates sentenced on or after Dec. 31, 1999 (the effective date of Wisconsin’s first truth-in-sentencing laws) could begin earning PAT starting on Oct. 1, 2009.

    In 2011 the legislature passed 2011 Wisconsin Act 38 (Act 38), which repealed the early release provisions of Act 28; consequently, after Aug. 3, 2011, prisoners were generally precluded from earning PAT. Act 38 also created Wis. Stat. section 973.198, which preserved the opportunity for certain individuals to obtain early release based on PAT earned between Oct. 1, 2009 and Aug. 3, 2011, although it extended the amount of time an inmate is incarcerated by up to 90 days after he or she is eligible for early release (when compared to the early release date under Act 28).

    In 2008, petitioner Singh was charged with a felony; in 2010, he was placed on probation for three years with a three-year bifurcated sentence imposed and stayed. In July 2011, he committed another felony. After the second offense, his probation on the 2008 crime was revoked. He received a five-year bifurcated sentence on the 2011 crime to be served consecutively to his first sentence. He began serving his prison sentences in 2012. Thus, he committed his first offense before Act 28 went into effect, was sentenced while Act 28 was in effect, committed his second offense while Act 28 was in effect, and began serving his sentences after Act 28 was repealed.

    In 2012, Singh filed a petition for PAT. The Wisconsin Department of Corrections denied his request for early release because he did not serve any prison time while Act 28 was in effect. He then filed a petition for a writ of habeas corpus, which the circuit court denied. On appeal to the court of appeals, “Singh argued that the retroactive repeal of positive adjustment time and the enactment of Wis. Stat. § 973.198 were ex post facto laws. The court of appeals concluded that the retroactive repeal of positive adjustment time was unconstitutional, but that § 973.198 was not an ex post facto law” (¶ 23).

    A fractured supreme court (there were five separate opinions) affirmed in part and reversed in part the decision of the court of appeals. Writing the lead opinion, Justice Ann Walsh Bradley summarized the issues on which there was a majority decision and those that did not garner majority support as follows:

    1. “A majority of the court concludes that Wis. Stat. § 973.198 violates the constitutional prohibition against ex post facto laws because it makes the punishment for an offense more burdensome after it was committed. Five justices reverse the court of appeals determination on this issue (Abrahamson, J., Ann Walsh Bradley, J., Prosser, J., Ziegler, J., and Gableman, J.)” (¶ 1, n.1). Section 973.198 is the statute that lengthened by 90 days the date on which early release could occur under Act 38 as compared to the early release date under Act 28.

    2. “Likewise a majority of the court concludes that the retroactive repeal of positive adjustment time violates the ex post facto clause vis-à-vis the July 2011 offense. Five justices would affirm the court of appeals determination of that issue (Abrahamson, J., Ann Walsh Bradley, J., Prosser, J., Ziegler, J., and Gableman, J.)” (id.). The July 2011 offense occurred while Act 28 was in effect.

    3. “However, no majority has been garnered as to whether the retroactive repeal violates the ex post facto clause vis-à-vis the 2008 offense. Three justices conclude that it does (Abrahamson, J., Ann Walsh Bradley, J., and Prosser, J.); two justices conclude that it does not (Roggensack, C.J. and Rebecca G. Bradley, J.); and two justices do not address the issue (Ziegler, J., and Gableman, J.)” (id.). The 2008 offense occurred before the effective date of Act 28.


    Shiffra Rule – Remedy

    State v. Lynch, 2016 WI 66 (filed 13 July 2016)

    HOLDING: A divided supreme court was unable to reach an opinion, thus letting stand the court of appeals opinion in this case.

    SUMMARY: The circuit court ruled that the defendant, Lynch, had made an adequate showing for an in camera review of a crime victim’s mental health records. When the victim refused to disclose the privileged matters, the trial judge barred her from testifying based on case law. In a published decision, the court of appeals affirmed. See 2015 WI App 2.

    The case raised three issues. First, should the supreme court overrule the Shiffra/Green line of cases? See State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) modifiedby State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. Second, is witness preclusion the only remedy available when a witness refuses to disclose his or her confidential records? Third, may a circuit court compel production of the privileged material pursuant to Wis. Stat. section 146.82(2)(a)4.? (see ¶ 7).

    The supreme court could not agree on a decision; thus, the court of appeals’ decision controls. The lead opinion was written by Justice Gableman (joined by Chief Justice Roggensack and Justice Rebecca G. Bradley) and would have overturned Shiffra/Green. Justice Abrahamson and Justice Ann Walsh Bradley would uphold Shiffra/Green but allow additional remedies, including compelled production under Wis. Stat. section 146.82(2)(a)4. Justice Prosser would uphold Shiffra/Green and consider additional remedies but would not compel production under section 146.82(2)(a)4. Justice Ziegler would not overturn Shiffra/Green and interprets Shiffra as providing a single remedy of witness preclusion.


    Non-earnings Garnishments – Garnishable Amount – Impleading a Third Party into an Existing Garnishment Action – Partition of Real Estate

    Prince Corp. v. Vandenberg, 2016 WI 49 (filed 23 June 2016)

    HOLDINGS: The Wisconsin Department of Revenue (DOR) was entitled to garnish a specified portion of land-contract proceeds owed to the defendant, and the circuit court did not erroneously exercise its discretion in declining to partition the property in question.

    SUMMARY: James Vandenberg (James) and three others (the intervenors) owned a parcel of real estate as tenants-in-common. During the period of ownership, James accumulated personal debts that resulted in encumbrances being filed against the property. Thereafter, in 2011, James and the intervenors contracted to sell the property to Van de Hey Real Estate for $341,700 on a land contract, according to which Van de Hey would remit three equal payments of $113,900 on a specified schedule. The land contract also provided that James and the intervenors were obligated to deliver a warranty deed “free and clear of all liens and encumbrances” when the third and final payment was made.

    After Van de Hey made the first two payments, one of James’ creditors, Prince Corporation, filed a non-earnings garnishment summons and complaint, seeking to garnish Van de Hey’s final payment due under the land contract as partial satisfaction of a money judgment against James that had been docketed in 2010. After being permitted to intervene in Prince’s lawsuit, the intervenors filed a third-party summons and complaint, impleading the DOR as an interested party due to the DOR’s earlier filed tax warrants that resulted from James’ delinquent taxes.

    The DOR answered the third-party complaint setting forth its claim of an interest in the property because, in 2010, it had docketed state income tax warrants against James. Thereafter the intervenors moved for partition of the property, believing it to be the only method of conveying title to Van de Hey that would be free and clear of all liens and encumbrances.

    The circuit court concluded that 1) the DOR’s previously docketed tax warrants were superior to Prince’s money judgment, 2) the DOR may garnish from Van de Hay’s final payment the entirety of James’ interest in the land sale (one-fourth of the total contract price), and 3) partition of the property should be denied.

    In a published decision, the court of appeals affirmed. See 2015 WI App 55. In a majority decision authored by Chief Justice Roggensack, the supreme court affirmed in part and reversed in part the decision of the court of appeals.

    Three issues were before the supreme court: “(1) whether the DOR is entitled to garnish any portion of the final land contract payment; and, if so, (2) whether the DOR is entitled to garnish 1/4 of the final payment due on the land contract or 1/4 of the land contract’s full purchase price; and (3) whether the circuit court erroneously exercised its discretion in refusing to partition the property” (¶ 2).

    The supreme court concluded that the DOR is entitled to garnish a portion of the final land-contract payment. It rejected the intervenors’ claim that the DOR is not entitled to garnishment because it never filed a non-earnings garnishment summons and complaint after being impleaded in the action. “[O]nce a garnishment action is commenced under Wis. Stat. § 812.04(3) and the impleaded third party files an answer setting forth its claim to the property in the garnishee’s hands, the impleaded third party begins its garnishment” (¶ 28). The court concluded that the DOR’s answer sufficiently set forth its claim to the garnishable property at issue in the already commenced garnishment action.

    As for the DOR’s garnishable amount, the court of appeals held that the DOR could garnish James’ one-fourth share of the total land-contract price ($85,425) from Van de Hey’s final payment of $113,900. The supreme court disagreed.

    “[A] garnishor is entitled to garnish only the amount that the debtor could require be paid to him from the property in the hands of the garnishee when the garnishment is served” (¶ 34). Accordingly, “the DOR is entitled to garnish only James’ outstanding share of the final payment under the land contract. Stated otherwise, if 1/4 of each of the first two payments has been paid to James or on his behalf, James is entitled to $28,475 of the final payment on the land contract, and that is the amount available for the DOR to garnish” (¶ 37).

    Finally, the supreme court concluded that the circuit court did not erroneously exercise its discretion by refusing to partition the property (see ¶ 48).

    The circuit court had determined that “neither physical partition of the real estate nor judicial sale of the real estate would be equitable under the circumstances because any such action would have prejudicial effects on one or more interested persons. Specifically, the circuit court concluded that physical partition would be prejudicial to Van De Hey, holding equitable title, because Van De Hey had contracted to receive the entire property for the purchase price and had made two payments in furtherance of the land contract. The circuit court said that it was possible that partition could result in Van De Hey receiving an unencumbered 3/4 of the property from the intervenors and an encumbered 1/4 of the property from James. However, Van De Hey contracted to purchase the entire property ‘free and clear of all liens and encumbrances’” (¶ 50).

    “Partition also would result in reducing the security by 3/4 for others who have encumbrances on the real estate if their encumbrances were to remain on only James’s 1/4 interest rather than on the undivided interests in the property. Therefore, the circuit court refused to order partition as inequitable” (id.).

    Justice Abrahamson filed an opinion concurring in part and dissenting in part that was joined in by Justice Ann Walsh Bradley.


    Builder’s Risk – Homeowner’s Coverage

    Fontana Builders Inc. v. Assurance Co. of Am., 2016 WI 52 (filed 29 June 2016)

    HOLDING: The court of appeals erred when it determined that interpretation of a builder’s risk policy was a question of fact for a jury; the homeowner’s policy here did not “apply” as to terminate a builder’s risk policy that insured a very different interest in the same property.

    SUMMARY: In 2007, a fire destroyed a high-end “spec” home and its contents, worth more than $1 million. The home and its contents were covered by two policies: a homeowner’s policy and a builder’s risk policy. The occupants, the Accolas, were also the operators of Fontana Builders (the builder). The case presents a “factually complicated” (¶ 4) issue of insurance coverage that resulted in two jury trials and two appeals before this one.

    The supreme court reversed the court of appeals in an opinion authored by Justice Prosser. The court of appeals “incorrectly determined that interpretation of Assurance’s builder’s risk policy was a question of fact for a jury in this case, and we reaffirm the general principle that interpretation of insurance contracts presents a question of law for the court” (¶ 5). The “interpretation of an insurance contract becomes a question for the jury only when necessary to resolve factual disputes about the parties’ understanding at the time they entered into the contract” (¶ 45).

    Here there was a question of law about an ambiguity (see ¶ 55) regarding the phrase “when permanent property insurance applies” under the builder’s risk policy; that is, when the Accolas acquired the homeowner’s policy did it end coverage under Fontana’s builder’s risk policy? The court found “pivotal differences” between the Accolas as individuals and Fontana, the builder (¶ 62).

    “Because Fontana and the Accolas are not legally coextensive, the Accolas’ legal status relative to Fontana is identical to that of any third party that might have sought to purchase a home from Fontana. If the Accolas’ acquisition of a homeowner’s policy operated to terminate Fontana’s builder’s risk policy from Assurance, any third-party prospective purchaser acquiring a homeowner’s policy in anticipation of closing a sale could similarly terminate a builder’s risk policy containing this language” (¶ 65).

    “Leaving builders exposed to such uninsured risk of loss would thoroughly frustrate their reasonable expectations” (¶ 67). Thus, the Accolas’ occupancy of the unfinished home did not “alter Fontana’s insured interest” because construction continued (¶ 69).

    Justice Ann Walsh Bradley, joined by Justice Abrahamson, concurred. They shared the majority’s concern about potential purchasers being able to unilaterally terminate a builder’s risk policy but also agreed with the concurrence-dissent that there was no ambiguity in the word “applies” (¶ 72). The key was that the Accolas and Fontana held different interests (see ¶ 81).

    Justice Rebecca G. Bradley concurred in part but dissented on grounds that the homeowner’s policy terminated coverage under the builder’s risk policy (see ¶ 102).

    Duty to Defend – Exclusions – “Four-Corners Rule”

    Marks v. Houston Cas. Co., 2016 WI 53 (filed 30 June 2016)

    HOLDING: The insurer had no duty to defend its insured based on the policy language, including exclusions, under the “four-corners analysis”; the court also explicitly overruled “unsound” language in three earlier opinions regarding when an insurer can deny coverage but raise exclusions in later litigation involving its duty to defend.

    SUMMARY: Marks was the trustee of two different trusts. In that capacity, he carried professional liability insurance issued by Houston Casualty. From 2007 to 2009, Marks became embroiled in a large number of lawsuits filed throughout the United States (see ¶ 4). Marks tendered his defense to Houston Casualty, which informed him that it had no duty to defend in any of those lawsuits, which were unrelated to his role as trustee. The circuit court agreed that Houston Casualty had no duty to defend. In a published decision, the court of appeals affirmed. See 2015 WI App 44.

    The supreme court affirmed the court of appeals in a majority opinion, authored by Justice Ziegler, that thoroughly plumbs the law on an insurer’s duty to defend and the four-corners rule. “[O]nly two documents are germane in any four-corners analysis: the insurance policy and the complaint against the insured. No examination of extrinsic facts or evidence takes place” (¶ 39). The rule works to protect insureds (see ¶ 41).

    Although the lower courts found that the policy set forth an initial grant of coverage, the supreme court held that it “need not” and would not reach that issue because the policy’s business-enterprise exclusion obviated any “possible duty to indemnify” for the claims (¶ 47). “Conspicuously absent” from the plethora of claims against Marks was any mention of his position as trustee of the two trusts (¶ 51).

    The court also rejected two other contentions by Marks. First, the exclusion did not result in “illusory coverage,” an issue that turned on the details of the policy and the sundry arguments by Marks and Houston Casualty; in short, the exclusion created no conflict with the coverage provision (¶ 6).

    Second, Marks contended that “the business enterprise exclusion does not apply in this case 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 it is subsequently sued by its insured for breaching its duty to defend’” (¶ 61).

    In rejecting this argument, the court noted that Marks relied on three cases that “constitute a stunted strand of law that conflicts with our four-corners jurisprudence,” resulting in “uncertainty”
    (¶ 74). Those three cases, cited and much discussed in the opinion, were “unsound” and detrimental to the coherence and consistency of the law. “In order to resolve conflicting precedent in Wisconsin case law, we explicitly overrule any statements in these cases that suggest such an analysis is appropriate” (¶ 75).

    Justice Ann Walsh Bradley, joined by Justice Abrahamson, concurred, agreeing that the four-corners rule contemplates both exceptions and exclusions to coverage (see ¶ 82). She disagreed, however, that the four-corners analysis is restricted to only the two documents (the policy and the complaint) specified by the majority (see ¶ 84).

    Justice Rebecca G. Bradley also filed a concurrence.

    Duty to Defend – “Four-Corners Rule” – Policy Exclusions

    Water Well Solutions Serv. Grp. Inc. v. Consolidated Ins. Co., 2016 WI 54 (filed 30 June 2016)

    HOLDING: In duty-to-defend cases, courts will consider only the “four corners” of the complaint and the insurance policy; there are no exceptions that permit consideration of extrinsic evidence.

    SUMMARY: The underlying litigation concerns the failure of a water pump installed by Water Well in Waukesha. The city’s insurer sued Water Well for its alleged negligence. In turn, Water Well tendered its defense to its commercial general liability (CGL) insurer, which denied the defense tender because of the policy’s “Your Product” and “Your Work” exclusions. Water Well obtained its own counsel and eventually settled the pump claim but sued its CGL carrier for bad faith. The circuit court granted summary judgment in favor of the CGL insurer, finding no duty to defend. In a published decision, the court of appeals affirmed. See 2015 WI App 78.

    The supreme court affirmed in a majority opinion authored by Justice Rebecca G. Bradley. The court double-downed on the four-corners rule that it had clarified in a companion case, Marks v. Houston Casualty Co. (see synopsis above): “the four-corners rule requires a court to compare the complaint to the terms of the entire insurance policy in determining whether the duty to defend is triggered.… The longstanding four-corners comparison rule applies in all duty to defend cases, including cases such as this one where the policy provides an initial grant of coverage, the insurer made a unilateral decision to refuse to defend based on specific policy exclusions, and the insured asserts the underlying complaint is factually incomplete or ambiguous” (¶ 3).

    The court also rejected a proposed limited exception to this approach that would have applied when the insurer declines to defend based on a policy exclusion but without first having sought a coverage determination from a court (see ¶ 18).

    After extensively reviewing the case law, the court “unequivocally [held] that there is no exception to the four-corners rule in duty to defend cases in Wisconsin. This position is consistent with long-standing precedent” (¶ 24). The court disavowed any “passing reference” to possible exceptions in earlier cases and overruled language in one case [Berg v. Fall, 138 Wis. 2d 115, 122 405 N.W.2d 701 (Ct. App. 1987)] “suggesting that evidence may be considered beyond the four corners of the complaint in determining an insurer’s duty to defend its insured” (¶ 24). The four-corners rule protects insureds in various ways; the court noted that later discovery and amended pleadings may well trigger the duty to defend and expose an insurer to damages beyond indemnification.

    Insurers are “strongly encourage[d]” to follow one of three “judicially-preferred approaches” to resolving duty-to-defend questions rather than proceed unilaterally (¶ 27). “Liability for costs and attorneys fees may potentially be greater than what the insurer would have paid had it defended its insured in the first instance because an insurer that refuses to defend its insured cedes control of the defense to its insured and is liable for all reasonable expenses” (¶ 28).

    Applying the four-corners rule in this case, the court held that the CGL insurer had no duty to defend under terms of the Your Product exclusion.

    Dissenting, Justice Ann Walsh Bradley, joined by Justice Abrahamson, disagreed with the decision to forgo even a narrow exception to the four-corners rule, thus placing Wisconsin among the “dwindling number” (14) of states that have taken such a stance – one that turns a “blind eye to basic and heretofore well-recognized principles of insurance law: the duty to investigate, privity, and the broad application of the duty to defend” (¶ 44).

    Subrogation – Made-whole Doctrine

    Dufour v. Progressive Classic Ins. Co., 2016 WI 59 (filed 6 July 2016)

    HOLDING: An insurer did not act in bad faith, and the “made-whole” doctrine was not applicable when the insurer paid its insured “all he bargained for” under his policy.

    SUMMARY: Dufour was seriously injured while riding his motorcycle. The tortfeasor’s insurer paid its limits for bodily injury. Dufour’s own insurer, Dairyland, also paid its bodily injury limits for underinsured coverage and also paid him the full value of his wrecked motorcycle under the policy’s property damage coverage. It was undisputed that Dufour’s expenses for bodily injuries exceeded the limits paid by both insurers.

    Dairyland sought subrogation from the tortfeasor’s insurer for the amount it had paid Dufour for property damage. After Dairyland received this payment, Dufour demanded those proceeds under the made-whole doctrine. Dairyland refused and Dufour sued.

    The circuit court found no bad faith by Dairyland but granted summary judgment in Dufour’s favor regarding the subrogated property-damage payment (see ¶ 9).
    In an unpublished decision, the court of appeals affirmed on the ground that Dufour had not been made whole for his bodily injuries.

    The supreme court reversed in a majority opinion, authored by Chief Justice Roggensack, that reviews in depth the case law on the made-whole doctrine, especially the Garrity and Rimes cases. See Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977); Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982). “We conclude that, given the facts presented in the instant case, the made whole doctrine does not apply to preclude Dairyland from retaining funds obtained in subrogation even though Dufour has not recovered all of his bodily injury damages flowing from the accident” (¶ 49).

    First, Dairyland fully paid the limits on the bodily injury coverage as well as the full value of the damaged property (see id.). Second, Dufour had priority in recovering under the tortfeasor’s policy. Third, “by waiting until Dufour recovered all available proceeds under both insurance policies, Dairyland was not in competition with Dufour for a limited pool of funds” (¶ 50). Dairyland’s subrogation efforts did not affect Dufour’s recovery (see id.). The court refused to rewrite Dairyland’s policy to permit Dufour “to tap into his property damage policy limit in order to satisfy his remaining bodily injury loss” (¶ 51).

    The supreme court expressed serious concerns about the court of appeals’ decision in Valley Forge Insurance Co. v. Home Mutual Insurance Co., 133 Wis. 2d 364, 396 N.W.2d 348 (Ct. App 1986), cautioning “against its use” because of tension with other, later cases. It did not, however, overrule Valley Forge, which applies only when a settlement agreement obligated the injured party to indemnify the tortfeasor and its insurer for any later subrogation award, which was not the case here (see ¶ 52).

    Justice Abrahamson, joined by Justice Ann Walsh Bradley, concurred in part and dissented in part. They dissented because case law has been steadily “chipping away” at the made-whole doctrine (¶ 70).
    They concurred with the majority’s determination that Dairyland did not act in bad faith.

    Municipal Law

    Residency Requirements for Municipal Employees – Wis. Stat. Section 66.0502 – “Home Rule” Amendment of Wisconsin Constitution

    Black v. City of Milwaukee, 2016 WI 47 (filed 23 June 2016)

    HOLDINGS: 1) Wisconsin Statutes section 66.0502 precluded the city of Milwaukee from enforcing its residency requirements for municipal employees. 2) The Milwaukee Police Association’s 42 U.S.C. § 1983 claim failed because the Association did not show a deprivation of rights, privileges, or immunities protected by the U.S. Constitution or federal statutes.

    SUMMARY: Since 1938, the city of Milwaukee has required city employees to comply with a residency requirement or face termination of their employment. Its residency requirement is set forth in the city’s charter and requires city employees to reside within city limits. In 2013, the Legislature enacted Wis. Stat. section 66.0502 (see 2013 Wis. Act 20), which prohibits cities, villages, towns, counties, and school districts from requiring their employees to reside within their jurisdictional limits. The conflict between state statute and the city charter gave rise to this litigation.

    Article XI, section 3(1) of the Wisconsin Constitution, better known as the “home rule amendment,” gives cities and villages the power to create laws that deal with their local affairs. However, the supreme court has held that “a legislative enactment can trump a city charter ordinance either (1) when the enactment addresses a matter of statewide concern, or (2) when the enactment with uniformity affects every city or village” (¶ 26).

    In a majority decision authored by Justice Gableman, the supreme court concluded that Wis. Stat. section 66.0502 precludes the city from enforcing its residency requirement. The court assumed without deciding that “[section] 66.0502 is a matter of local affairs” and instead focused its attention on whether the statute uniformly affects every city and village (¶ 32). A statute satisfies the home rule amendment’s uniformity requirement “if it is, on its face, uniformly applicable to every city or village” (¶ 34).

    “In this case, the Legislature banned residency requirements throughout Wisconsin by enacting Wis. Stat. § 66.0502. We conclude that Wis. Stat. § 66.0502 (consistent with the home rule amendment) uniformly affects every city or village. We so conclude because the plain language of Wis. Stat. § 66.0502 demonstrates its uniform effect: Wis. Stat. § 66.0502 says that ‘no local governmental unit’ may have a residency requirement, and it goes on to define ‘local governmental unit’ to mean ‘any city, village, town, county, or school district’ in the State. Wis. Stat. § 66.0502(2)-(3) (emphasis added). Consequently, Wis. Stat. § 66.0502 uniformly bans residency requirements, and in so doing, it satisfies the home rule amendment’s uniformity requirement” (¶ 39).

    This case also involved a 42 U.S.C. § 1983 claim by the plaintiff Milwaukee Police Association that the city unconstitutionally deprived it of its “liberty interest in being free from ‘residency’ being required as a condition of municipal employment” when the city continued enforcement of its residency requirement after the Legislature enacted Wis. Stat. section 66.0502 (¶ 5).

    This claim failed “because the Police Association has not met the requirements necessary to prevail on a section 1983 claim. Specifically, the Police Association has not shown a deprivation of rights, privileges, or immunities protected by the Constitution or laws of the United States” (¶ 51).

    Justice Rebecca G. Bradley filed a concurring opinion. Justice Ann Walsh Bradley filed an opinion concurring in part and dissenting in part that was joined in by Justice Abrahamson.


    Medical Malpractice – Statute of Limitation – Accrual

    John Doe 56 v. Mayo Clinic Health Sys., 2016 WI 48 (filed 23 June 2016)

    HOLDING: Medical malpractice claims accrued on the date the plaintiffs suffered a “physical injurious change,” and their claims thus were barred by the statute of limitation.

    SUMMARY: Various unnamed plaintiffs, collectively “the Does,” sued various defendants for medical malpractice. The Does alleged that a defendant physician committed malpractice when performing their genital examinations as youths. The circuit court dismissed the claims based on the statute of limitation. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed in a majority opinion authored by Justice Rebecca G. Bradley. At the outset, the court addressed when an intentional crime, such as sexual assault, can also be medical malpractice (see ¶ 2). The case law cut in different directions, but in light of the facts before it, the court could not “hold as a matter of law that no claim exists under medical malpractice law” (¶ 5).

    Addressing the statute of limitation and the date of accrual, the court held that the Does suffered their injuries when the doctor “physically touched their genitals in an inappropriate way” (¶ 19). The court was “sympathetic” yet unpersuaded by the Does’ contention that they did not know the doctor was sexually assaulting them (¶ 23).

    In sum, “we conclude that the Does’ medical malpractice claims accrued on the date of the last genital examination. It was on that date that each suffered the ‘physical injurious change’ that triggered the start of the three-year statute of limitations. The psychological injuries, caused by the knowledge that Dr. Van de Loo had been criminally charged for similar touching of other boys, constituted a subsequent injury from the same tortious act (the inappropriate touching). This emotional manifestation based upon the previously completed physical injury (the improper touching of the boys’ genitals during the physical examination) does not restart the running of the statute of limitations” (¶ 24).

    Justice Ann Walsh Bradley dissented, joined by Justice Abrahamson. They agreed that the allegations constituted medical malpractice and that the “discovery rule” was not pertinent (see ¶¶ 29-30). The dissent contended, however, that the allegations here were not time barred by the three-year statute of limitation. The majority opinion, they argued, “conflates” statutes of repose and statutes of limitation while also “muddl[ing]” case law regarding the timing of injuries.

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