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    Wisconsin Lawyer
    September 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

    Civil Procedure

    Jury Waiver – Contracts – Unconscionability

    Parsons v. Associated Banc-Corp, 2016 WI App 44 (filed 10 May 2016) (ordered published 29 June 2016)

    HOLDINGS: 1) A prelitigation waiver of the right to jury trial was invalid because of one party’s delay in raising the issue. 2) Any prelitigation waiver requires a showing of “actual knowledge” of the right waived, which was not present here. 3) The waiver was both procedurally and substantively unconscionable.

    SUMMARY: Taft and Carol Parsons sued a bank for violating the state’s anti-racketeering statute and for negligently hiring, training, and supervising a loan officer. The case involved a home equity loan and a construction loan on a townhouse project. The Parsons demanded a jury trial but at a late date the bank asserted that Taft had waived the right to a jury trial when he signed a promissory note some 10 years earlier. The trial judge granted the bank’s motion, also finding that the waiver extended to Carol.

    The court of appeals reversed in an opinion authored by Judge Kessler. First, the bank forfeited its right to raise the waiver issue when it delayed raising this issue for three years after the start of litigation (see ¶ 22). Equitable estoppel also barred the bank’s untimely claim of a jury waiver (see ¶ 23).

    Second, a prelitigation contractual waiver of a jury trial requires a showing that the person has “actual knowledge of the rights being given up.” The bank failed to meet its burden on this point (see ¶ 30).

    Third, the waiver was unconscionable both procedurally and substantively. Procedural unconscionability stemmed from the coercive manner in which the waiver was obtained (see ¶ 35). The waiver was substantively unconscionable because its breadth rendered the Parsons’ right to jury trial meaningless (see ¶ 37).

    Criminal Procedure

    Jury Instructions – Incorporating “New Law” into Instructions

    State v. Bryzek, 2016 WI App 48 (filed 18 May 2016) (ordered published 29 June 2016)

    HOLDING: The circuit court erred when it instructed jurors to determine the defendant’s guilt based on a legal standard more detrimental to him than the standard in effect when he committed key acts underlying his conviction.

    SUMMARY: In 1996, E.B., defendant Bryzek’s mother, executed a general durable power of attorney (POA) naming Bryzek as her agent. Through the POA, E.B. granted Bryzek the authority to, among other things, “[m]ake gifts of any kind, including gifts to my agent,” that is, Bryzek.

    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.

    In 2012, the state charged Bryzek with theft by a bailee in violation of Wis. Stat. section 943.20(1)(b) and (3)(c), alleging that between May 2007 and November 2010, Bryzek, acting as agent for his mother pursuant to the POA, used more than $38,000 of her funds for his personal purposes. Because the amount Bryzek allegedly stole exceeded $10,000, the charge was a Class G felony.

    For a finding of guilt, the state was required to prove four elements that constitute the crime of theft by a bailee. The standard jury instruction provides as follows for the second element: “The defendant intentionally used the money without the owner’s consent and contrary to the defendant’s authority. The term ‘intentionally’ means that the defendant must have had the mental purpose to use the money without the owner’s consent and contrary to the defendant’s authority” (¶ 4).

    However, the state requested and the circuit court agreed (over the defendant’s objection) to add the following language to the instruction for the second element: “The ‘authority’ of a Power of Attorney means that despite any provisions to the contrary in the power of attorney, an agent who has accepted appointment shall act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, if those expectations are not known, in the principal’s best interest; act in good faith; and act only within the scope of authority granted in the power of attorney” (id.).

    The added language was derived from Wis. Stat. section 244.14(1) – a statutory provision that took effect in 2010 after many of the defendant’s criminal acts had already been committed. The jury convicted the defendant as charged.

    The defendant filed a postconviction motion seeking a new trial, which the postconviction court granted after determining that the modified jury instruction inappropriately was based on and used “new law” (¶ 5). In a decision authored by Judge Gundrum, the court of appeals affirmed.

    Said the appellate court, “By modifying the jury instruction as it did, the trial court invited jurors to determine Bryzek’s guilt based upon a standard more detrimental to him than the standard in effect at the time he committed key acts underlying his conviction” (¶ 9). The law before the enactment of Wis. Stat. section 244.14(1) permitted an agent to grant himself or herself gifts so long as the POA specifically permitted such conduct; it did not qualify that permission by inviting fact finders to consider the “reasonable” expectations or best interest of the principal “despite” the explicit gifting authority provided by the principal (¶ 15).

    “Because the modified instruction did not fairly state the law applicable to Bryzek’s acts and led the jury to apply the wrong law when it determined whether the State had proven its case beyond a reasonable doubt, the postconviction court did not err in ordering a new trial” (¶ 9).

    Juvenile Sentencing for First-degree Intentional Homicide – Constitutional Challenges to Sentencing Scheme – Correction of Erroneous Determination of Eligibility for “Parole”

    State v. Barbeau, 2016 WI App 51 (filed 22 June 2016) (ordered published 27 July 2016)

    HOLDINGS: 1) The error of the court and counsel in thinking that defendant Barbeau would be eligible to petition for release to parole supervision as opposed to extended supervision does not warrant a modification of Barbeau’s sentence. 2) To the extent that Barbeau has standing to raise constitutional challenges to the statutory scheme under which he was sentenced, they lack merit.

    SUMMARY: Antonio D. Barbeau, a few months’ shy of his 15th birthday, pleaded no contest to first-degree intentional homicide for the murder of his great-grandmother in 2012. He was sentenced to life imprisonment with the right to seek release to parole supervision on his 50th birthday in 2048, after 35 years’ imprisonment. The circuit court later discovered that under Wisconsin’s truth-in-sentencing statutes in effect since Dec. 31, 1999, Barbeau was actually eligible for release to extended supervision and not parole. The court, the district attorney, and defense counsel all agreed that the judgment should be amended so that Barbeau would be eligible for release to extended supervision in 2048.

    However, before the judgment was amended, Barbeau, with new counsel, moved for resentencing, arguing that the error in imposing a parole eligibility date rather than an extended supervision eligibility date was a new factor that warranted modifying his sentence so that he would be eligible for release to extended supervision after 20, instead of 35, years of imprisonment. The circuit court amended the judgment to reflect eligibility to apply for extended supervision in 2048. Barbeau appealed.

    In a decision authored by Judge Neubauer, the court of appeals affirmed. It rejected Barbeau’s contention that the error at sentencing is a new factor that justifies a modification of his sentence (see ¶ 1).

    “Barbeau fails to show by clear and convincing evidence that, under the old and new scheme, the circuit court’s determination of when he would be eligible for release to either parole or extended supervision is different” (¶ 17). Put another way, “Barbeau has failed to show by clear and convincing evidence that, whether the court considers an eligibility date for release on extended supervision or parole, the determination is not functionally and substantively the same.” (¶ 19).

    The appellate court also rejected Barbeau’s arguments that the statutory scheme he was sentenced under violates the prohibitions against cruel and unusual punishment contained in the federal and state constitutions.

    “To the extent Barbeau has standing to raise any of his constitutional claims, they lack merit. Barbeau did not receive a sentence of life imprisonment without the possibility of supervised release. In any event, the imposition of such a sentence on a juvenile is not constitutionally impermissible provided it leaves room for the exercise of the court’s discretion to impose something less in light of the juvenile’s age. Barbeau did not receive the mandatory minimum of twenty years’ imprisonment but, even if he had, such is not constitutionally disproportionate to Barbeau’s crime of first-degree intentional homicide, even for a juvenile” (¶ 50).

    “Finally, while Barbeau will not be eligible to seek release until 2048, he has failed to show that the consideration of whether he is not a danger to the public [the standard for release to extended supervision on a life sentence] deprives him of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (id.)

    Miranda – Custody – Compelled Statements – “Fruits”

    State v. Quigley, 2016 WI App 53 (filed 15 June 2016) (ordered published 27 July 2016)

    HOLDING: The defendant was not in Miranda-type custody when questioned by police officers so no Miranda waiver was required; under Kastigar v. United States, 406 U.S. 441 (1972), however, reversible error occurred when he made compelled statements to his probation agent and the state could not show that its evidence was independent of those coerced statements.

    SUMMARY: Police officers who suspected the defendant was acting inappropriately with an underage female investigated and eventually unearthed evidence of his sexual misconduct, which included recorded images on a cell phone. Key evidence included the many statements the defendant made to police officers and the shifting statements made by the underage victim, P.R.

    The circuit court denied the defendant’s motion to suppress, which he based on an alleged Miranda violation and the re-interview of P.R. after the defendant was compelled to speak with his probation agent. The defendant pleaded guilty and appealed.

    The court of appeals reversed the convictions in an opinion authored by Judge Neubauer. First, the court rejected Quigley’s claim that police violated his Miranda rights. The issue boiled down to whether Quigley was in Miranda-type custody when police continued to question him at the police station. Conceding the facts presented a “close question” (¶ 37), the court found no error by the trial judge or ineffective assistance by trial counsel.

    “In sum, [Detective] Melichar’s advisement to Quigley that he was not under arrest and was free to leave, which Quigley acknowledged, combined with other factors such as the lack of any physical restraint in the waiting or interview rooms that would have prevented Quigley from leaving, and the conversational and nonaccusatory tone of the interview, lead us to conclude that a reasonable person in Quigley’s position would not have considered himself to be in custody” (¶ 43). Absent custody, the Miranda rights did not attach.

    Reversible error occurred, however, when prosecutors violated the Kastigar doctrine. Quigley made a compelled statement about the offense to his probation agent, as required by terms of his probation. Police later re-interviewed P.R., who changed her statement. The government bore the burden of showing that any evidence it uncovered after the compelled statement, including P.R.’s later interview, was independent of the compelled statement (see ¶¶ 49, 56).

    The government failed to carry its burden, as required by the Kastigar doctrine. The court emphasized that what mattered was “what in fact happened,” not what the government “would have done” (¶ 52).

    Penalty Enhancer – Computer Sex Crimes

    State v. Heidke, 2016 WI App 55 (filed 28 June 2016) (ordered published 27 June 2016)

    HOLDING: The penalty enhancer for the crime of using a computer to facilitate a child sex crime was constitutional on its face and as applied.

    SUMMARY: The defendant, Heidke, pleaded guilty to using a computer to facilitate a child sex crime based on his communications with a fictive 15-year-old boy who was actually a detective. The circuit court rejected his challenge to the constitutionality of the penalty enhancer found in Wis. Stat. section 939.617(1). This penalty enhancer sets a mandatory minimum sentence of five years for the conviction of using a computer to facilitate a child sex crime contrary to Wis. Stat. section 948.075(1r).

    The court of appeals affirmed in an opinion authored by Judge Curley. First, the penalty enhancer for this offense was not irrational based on the court’s review of the legislative history, including testimony supporting it (see ¶ 12). Nor was it irrational just because the completed offense of child sexual assault carries no mandatory minimum sentence. The use of a computer and the Internet to “coax a child into sexual activity” is a “dangerous and evil activity with devastating consequences when completed.” “Strong measures” are appropriate to prevent this (¶ 16).

    Second, the penalty enhancer was not unconstitutional as applied to the defendant. The fact-intensive analysis considered the purported age of the victim, the defendant’s admission that he liked to “hook up” with younger guys, and evidence showing his house was “designed for sophisticated and, some might argue, deviant sexual practices” (¶ 19).


    Spousal Privilege – Expert Testimony

    State v. Schmidt, 2016 WI App 45 (filed 10 May 2016) (ordered published 29 June 2016)

    HOLDINGS: 1) Sufficient evidence supported the conviction, 2) the defendant waived the marital privilege, and 3) the circuit court properly excluded expert testimony offered by the defense.

    SUMMARY: The defendant was convicted of two counts of first-degree intentional homicide in the shooting death of a woman and her brother. The circuit court denied his postconviction motions.

    The court of appeals affirmed in an opinion authored by Judge Hruz. First, sufficient evidence supported the defendant’s conviction for killing the brother, a necessarily fact-intensive issue that is addressed in detail by the court.

    Second, while being interrogated by police officers, the defendant waived the spousal (“marital”) privilege regarding an incriminating statement he had made to his wife earlier about wanting to kill both himself and the woman, with whom he had been romantically involved. Under Wis. Stat. section 905.11, “[t]he controlling principle of waiver is the privilege holder’s voluntary disclosure of ‘any significant part’ of the matter or communication” (¶ 50). The circuit court’s waiver finding was reasonably based on the defendant’s disclosures to police officers about that otherwise privileged communication (see ¶ 40).

    Third, the circuit court did not deny the defendant his constitutional right to present a defense by excluding proffered expert testimony “regarding influences that could affect a child’s memory”
    (¶ 54). The issue necessitated a detailed discussion of State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 777. The evidence “had a razor-thin degree of relevancy” (¶ 86) and little probative value (see id.), and it invited “rank speculation” (¶ 87).


    Appraisal Panel – Scope of Authority

    St. Croix Trading Co. v. Regent Ins. Co., 2016 WI App 49 (filed 24 May 2016) (ordered published 29 June 2016)

    HOLDING: The circuit court correctly vacated an appraisal award because the appraisal panel exceeded its authority.

    SUMMARY: An insurer and its insured disputed the value of property damage to a building caused by a “wind loss.” The insurer estimated the damage at approximately $3,200 while the insured estimated the loss at more than $100,000. The insurer invoked the policy’s “appraisal clause.” A panel consisting of three appraisers certified the replacement cost at approximately $7,000 and actual value loss at approximately $3,000. The circuit court granted the insured’s motion to vacate the appraisal award on grounds that the panel exceeded its authority by deciding coverage instead of merely loss values (see ¶ 6).

    The court of appeals affirmed in an opinion authored by Judge Kessler. No Wisconsin cases have addressed this point, so the court looked to “a long line of other jurisdictions that have also restricted an appraisal panel’s authority to consider coverage” (¶ 18). Relying on a Minnesota case, the court held that “the appraisal panel was thus contractually limited to the factual task of valuing: (1) the items of property and (2) the amount of the loss” (¶ 14). The panel’s consideration of coverage “was in direct contradiction of the specific language of the insurance contract” (¶ 17).

    Lemon Law

    Accord and Satisfaction – Reasonable-use Value – Obstructing Timely Refund

    Klismet’s 3 Squares Inc. v. Navistar Inc., 2016 WI App 42 (filed 5 May 2016) (ordered published 29 June 2016)

    HOLDINGS: 1) The dealer failed to show accord and satisfaction, 2) the circuit court properly found the truck’s reasonable-use value, and 3) there was no evidence that the buyer obstructed payment of a refund.

    SUMMARY: Klismet’s purchased a truck from Navistar, and the truck soon developed serious problems. In a trial to the court, the judge awarded Klismet’s substantial damages and also awarded attorney fees in excess of $200,000 (see ¶ 8).

    The court of appeals affirmed in an opinion authored by Judge Sherman. Three issues surfaced in the appeal. First, the judge properly found that Navistar had not established accord and satisfaction (see ¶ 13). The argument was necessarily fact intensive, but much of it relates to checks cashed by a bank to pay off the lien (see ¶ 17).

    Second, the circuit court properly determined the reasonable allowance for the use of the vehicle, especially its determination that 300,000 miles was a more appropriate denominator for the truck’s useful life than 100,000 miles (see ¶ 29). Third, Navistar pointed to “no facts” showing that Klismet’s intentionally prevented Navistar from refunding the purchaser’s money within the 30-day statutory period under the lemon law.

    Motor Vehicle Law

    OWI – Implied Consent – Admissibility of Test Results When Chemical Test Not Conducted in Compliance with Wis. Stat. Section 343.305(6)(a)

    State v. Wiedmeyer, 2016 WI App 46 (filed 18 May 2016) (ordered published 29 June 2016)

    HOLDING: Failure to comply with the requirements of Wis. Stat. section 343.305(6)(a) did not render the results of chemical testing on the defendant’s blood inadmissible per se in his operating while intoxicated (OWI) trial.

    SUMMARY: The defendant was prosecuted for OWI; the results of chemical testing on his blood revealed the presence of restricted controlled substances. Wisconsin Statutes section 343.305(6)(a), which is part of the implied consent law, provides that for chemical analyses of blood or urine to be considered “valid under this section,” they must have been performed substantially according to methods approved by the State Laboratory of Hygiene and by an individual possessing a valid permit to perform the analyses issued by the Wisconsin Department of Health Services (DHS). It further provides that the DHS shall approve laboratories for the purpose of performing these chemical tests.

    The analyst who tested the defendant’s blood for controlled substances did not have a permit from the DHS to conduct tests for controlled substances. “As it turns out, DHS does not issue such permits and has never issued them before. In addition, the lab where the testing was performed was not approved by DHS because DHS does not approve laboratories as contemplated by the statute” (¶ 4).

    Based on these deficiencies, the defendant moved to suppress the test results, arguing that the results were “invalid” under Wis. Stat. section 343.305(6)(a) and thus inadmissible against him. The circuit court rejected the defendant’s argument and concluded that the test results were not inadmissible.

    In a decision authored by Judge Hagedorn, the court of appeals affirmed. Said the court, “The plain language of Wis. Stat. § 343.305(6)(a) states that testing must meet certain requirements ‘to be considered valid under this section.’ The obvious, and in our view correct, inference is that validity applies only to ‘this section’ – § 343.305 – not other statutes. The testing requirements of § 343.305(6)(a), therefore, do not preclude admission of noncomplying tests. Other statutory provisions establishing a sufficient foundation are in full force and effect. One example would appear to be Wis. Stat. § 907.02 – permitting scientific testimony if it would be helpful to the trier of fact” (¶ 8).

    Wisconsin Statutes section 343.305(5)(d) provides that results of testing for controlled substances that is done in accordance with section 343.305(6)(a) “are admissible” at an OWI trial. Wisconsin Statutes section 343.305(6)(a) “establishes a nonexclusive foundation that, if met, permits admissibility [of the test results.] A proper foundation, though, may be established through another statutory mechanism, and if it is, the test results may be admitted” (¶ 12).

    In sum, “[a]lthough failure to comply with Wis. Stat. § 343.305(6)(a) rendered the test results of [the defendant’s] blood invalid under § 343.305, the results are not per se inadmissible. Should this case proceed to trial, a court may admit the test results if the State finds another way to lay the proper foundation” (¶ 14).

    OWI – Amending the Charge – Approval of the Court – Wis. Stat. Section 967.055(2)(a)

    State v. Corvino, 2016 WI App 52 (filed 14 June 2016) (ordered published 27 July 2016)

    HOLDING: The circuit court did not err when it refused to allow the state to amend a felony OWI to a misdemeanor OWI; it had the inherent authority to order the state to file an information charging the defendant with a felony OWI.

    SUMMARY: Under Wis. Stat. section 346.65(2)(am)4., fourth-offense OWI is a misdemeanor, “[e]xcept as provided in subd. 4m.” Subdivision 4m. provides that, when the defendant committed an offense resulting in a countable conviction within the five years preceding the current offense, fourth-offense OWI is a Class H felony. In this case the state filed a criminal complaint charging defendant Corvino with one count of fourth-offense OWI as a Class H felony.

    The parties later reached a plea agreement under which Corvino agreed to plead guilty or no contest to a misdemeanor OWI-fourth offense charge. However, the circuit court rejected the plea agreement, concluding that, under Wis. Stat. section 967.055(2)(a), the state was required to apply to the court before amending the OWI-fourth charge from a felony to a misdemeanor. The court further concluded such amendment would be inconsistent with the public’s interest in deterring intoxicated driving and was therefore impermissible under Wis. Stat. section 967.055(2)(a). The court ordered the state to file an information charging Corvino with fourth-offense OWI as a felony. Corvino appealed from that order.

    In a decision authored by Judge Stark, the court of appeals affirmed. “We agree with the circuit court that Wis. Stat. § 967.055(2)(a) prohibited the State from amending the OWI charge against Corvino from a felony to a misdemeanor without prior court approval. We further agree that the circuit court properly exercised its discretion by refusing to allow the State to amend the charge and by rejecting the proffered plea agreement. Finally, we conclude the circuit court had inherent authority to order the State to file an Information charging Corvino with fourth-offense OWI as a felony” (¶ 2).

    Public Records Law

    Motor Vehicle Accident Reports – Police Incident Reports – Driver’s Privacy Protection Act

    New Richmond News v. City of New Richmond, 2016 WI App 43 (filed 10 May 2016) (ordered published 29 June 2016)

    HOLDINGS: 1) The circuit court correctly concluded that the police department was permitted to release unredacted copies of the accident reports requested by the plaintiff newspaper without violating the federal Driver’s Privacy Protection Act (DPPA). 2) The circuit court erred when it concluded that 18 U.S.C. § 2721(b)(1), the DPPA exception allowing disclosure for use by a governmental agency in carrying out its “functions,” permitted the police department to release an incident report in response to the newspaper’s public rec- ords request on grounds that responding to public records requests is a “function” of the police department.

    SUMMARY: New Richmond News (the newspaper) requested two accident reports and two incident reports from the City of New Richmond Police Department, pursuant to the Wisconsin Public Records Law. The police department ultimately provided the reports, but it redacted information identifying individuals referenced in both of the accident reports and in one of the incident reports (which involved a theft of gasoline).

    The police department contended these redactions were required by the DPPA. The DPPA was enacted in 1994 to limit the release of an individual’s personal information contained in his or her driver’s license record to people who had a legitimate and lawful need for the information (see ¶ 5). The newspaper then sued the city of New Richmond, alleging the police department’s failure to provide unredacted copies of the requested reports violated the public records law.

    The circuit court granted the newspaper judgment on the pleadings, concluding the DPPA did not prohibit the department from providing unredacted copies of the reports. In a decision authored by Judge Stark, the court of appeals affirmed in part and reversed in part the circuit court’s decision.

    The appellate court concluded that “the police department was permitted to release unredacted copies of the accident reports requested by the Newspaper, pursuant to the DPPA exception allowing disclosures specifically authorized under state law, if such use is related to the operation of a motor vehicle or public safety. See 18 U.S.C. § 2721(b)(14). Wisconsin law specifically requires police departments to release accident reports upon request. See Wis. Stat. § 346.70(4)(f)” (¶ 2). The court of appeals thus affirmed the decision of the circuit court with respect to the accident reports.

    However, the appellate court reversed the circuit court’s decision that the DPPA did not prohibit the department from releasing an unredacted copy of the incident report requested by the newspaper. “The circuit court concluded 18 U.S.C. § 2721(b)(1), the DPPA exception allowing disclosure for use by a government agency in carrying out its functions, permitted the police department to release the incident report in response to the Newspaper’s public records request because responding to public records requests is a ‘function’ of the police department” (id.). The appellate court believed that accepting that conclusion would lead to results that are in direct conflict with the DPPA.

    “[I]nterpreting the agency functions exception in the manner advocated by the Newspaper – that is, that the exception allows unfettered disclosure of personal information in response to public records requests – would be inconsistent with the manifest purpose of the DPPA and would therefore be unreasonable” (¶ 43).

    “We therefore reverse the circuit court’s determination that release of the incident report was permissible under § 2721(b)(1) by virtue of the public records law. Nevertheless, we remand for a determination of whether release of the incident report serves some other function of the police department, beyond mere compliance with the public records law, such that release of the unredacted report was otherwise permitted under § 2721(b)(1)” (¶ 3).

    Finally, the appellate court noted that there is a factual dispute regarding whether the redacted information in the incident report involving the theft of gasoline was obtained from Department of Motor Vehicles (DMV) records or merely verified using those records. “[I]f the redacted information in the incident report requested by the Newspaper was obtained from other sources and was merely verified using DMV records, it would not be subject to the DPPA. If, on the contrary, the information was obtained from DMV records, or was substantively altered upon verification in order to conform to DMV records, then it would be subject to the DPPA” (¶ 52).

    Accordingly, the appellate court directed the circuit court on remand to determine, as a threshold matter, whether the redacted information in the incident report was obtained from DMV records (see ¶ 4).

    Disclosure of Immigration Detainer Forms – 8 C.F.R. § 236.6 – Balancing Test

    Voces de la Frontera Inc. v. Clarke, 2016 WI App 39 (filed 12 April 2016) (ordered published 25 May 2016)

    HOLDING: The circuit court correctly concluded that the respondent sheriff must disclose to the plaintiff unredacted immigration detainer forms that were the subject of the petitioner’s public records request.

    SUMMARY: In February 2015, Voces de la Frontera Inc. submitted a public records request to Milwaukee County Sheriff David Clarke requesting copies of all I-247 immigration detainer forms received by Sheriff Clarke from U.S. Immigration and Customs Enforcement (ICE) since November 2014. Sheriff Clarke provided copies of 12 I-247 forms, from which the following information was redacted: 1) subject ID, 2) event number, 3) file number, 4) nationality, and 5) a series of boxes pertaining to immigration status. Sheriff Clarke subsequently produced revised redacted I-247 forms, this time disclosing the nationalities of the detainees.

    Voces filed a writ of mandamus in Milwaukee County Circuit Court seeking full disclosure of the four redacted items under Wisconsin’s public records law. The circuit court granted the writ. In a decision authored by Judge Brennan, the court of appeals affirmed.

    Sheriff Clarke argued that the public records law (Wis. Stat. §§ 19.31-.37) does not require disclosure of the redacted portions of the 12 detainer forms at issue here because federal law (8 C.F.R. § 236.6)
    specifically exempts disclosure of the redacted portions. The appellate court disagreed with Clarke and agreed with Voces that the federal exemption to disclosure does not apply here because the jail inmates in question were not in federal custody and, therefore, the federal law does not preempt the public records law. “Under the plain language of 8 C.F.R. § 236.6, for the redacted parts of the I-247 forms to be exempt from disclosure, the prisoner in question must be held on behalf of the federal government…” (¶ 28).

    Clarke did not dispute the fact the prisoners in question here were being held on state charges that had not yet expired. Federal custody would only begin when the state custody ends (see ¶ 28). The I-247 form is simply a detainer that requested the sheriff to hold the person named on the form for 48 hours after state custody ends to allow the U.S. Department of Homeland Security to determine whether it will take the prisoner into federal custody. “In short, receipt of an I-247 form by a local law enforcement agency does not convert a state prisoner into a federal detainee in the custody of ICE” (¶ 33).

    The appellate court also agreed with Voces that Clarke failed to meet his burden of showing that the public interest in nondisclosure outweighs disclosure, “given Wisconsin’s very strong legislative intent and public policy favoring disclosure” (¶ 18).

    (Editors’ Note: The Wisconsin Supreme Court has granted a petition to review this decision.)


    Powers of Sheriff – Appointment of Deputies

    Milwaukee Deputy Sheriffs’ Ass’n v. Milwaukee Cty., 2016 WI App 56 (filed 1 June 2016) (ordered published 27 July 2016)

    HOLDINGS: A sheriff lacks constitutional or statutory authority to hire as many deputies as he or she deems appropriate, and the county’s budget authorizing fewer appointees than requested by the sheriff was not arbitrary and unreasonable.

    SUMMARY: In his 2015 budget request, Milwaukee County Sheriff David Clarke asked the county for funding for an additional 119 deputy sheriff positions and an additional 58 correctional officer positions. The county’s 2015 budget authorized only an additional 17 deputy sheriff positions.

    In response, Sheriff Clarke and the Milwaukee Deputy Sheriffs’ Association jointly filed a complaint against the county seeking declaratory and injunctive relief and a writ of mandamus. All claims in the complaint related to the number of new deputy sheriff positions created by the 2015 budget. Specifically, the sheriff sought a declaration that the 2015 budget was arbitrary and unreasonable, that the 2015 budget created unsafe and unreasonable working conditions, and that the 2015 budget prevented him from fulfilling his constitutional and statutory duties.

    Ultimately, the sheriff sought relief in the form of an order requiring the addition of 10 deputy sheriff sergeants, seven correctional officer lieutenants, 75 deputy sheriffs, and 43 correctional officers. The circuit court granted the county’s motion to dismiss, concluding that the sheriff did not plead sufficient facts showing that he was entitled to relief.

    In a decision authored by Judge Brash, the court of appeals affirmed. It concluded that 1) the sheriff does not have constitutional authority to appoint law enforcement officers (see ¶ 11); 2) the sheriff’s argument that he has unilateral statutory authority to determine the total number of deputies to be appointed lacks merit (see ¶ 13); 3) the county’s 2015 budget is not arbitrary or unreasonable because, as indicated above, the sheriff lacks constitutional or statutory authority to hire as many deputies as he deems proper and moreover the budget does not prohibit the sheriff from fulfilling his constitutional duties – “albeit through the use of overtime” (¶ 18); and 4) the circuit court’s denial of the sheriff’s petition for a writ of mandamus was an appropriate exercise of discretion because the sheriff “cannot prove any facts that would entitle him to relief and he therefore has no probability of success on the merits” (¶ 20).


    Experts – Closings – Plain Error – Ineffective Assistance

    State v. Cameron, 2016 WI App 54 (filed 7 June 2016) (ordered published 27 June 2016)

    HOLDINGS: The trial judge was under no sua sponte duty to conduct a Daubert admissibility hearing, the prosecutor’s closing argument was not plain error, trial counsel was not ineffective, and discretionary reversal was not warranted.

    SUMMARY: Cameron was convicted of homicide and assorted felonies. An accomplice placed the defendant at the crime scene and identified him as the shooter. The state also offered evidence of cell phone mapping. On appeal, Cameron challenged his conviction on multiple grounds.

    The court of appeals affirmed in an opinion authored by Judge Kessler. The court reviewed the issues on cell phone mapping evidence and the prosecutor’s closing argument for plain error in light of trial counsel’s failure to object.

    First, the trial judge was under no sua sponte duty to conduct an admissibility hearing on the reliability of cell phone mapping (see ¶ 13). Case law fully supported this view. Moreover, the expert opinion testimony on cell phone mapping “centered on stipulated phone records obtained from cell service providers” (¶ 14). Finally, Wisconsin cases have held that “a witness need not be an expert to take the information provided by a cell phone provider and transfer that information onto a map” (¶ 15) (internal quotes and citation omitted).

    Second, the prosecutor did not impermissibly vouch for the credibility of the state’s key witness, an accomplice, during closing arguments (see ¶ 17) and properly introduced evidence relating to the plea bargain it had offered him (see ¶ 20).
    The prosecutor’s closing argument to the effect that the accomplice had testified truthfully was not “egregious” when viewed in context (¶ 22).

    Third, trial counsel was not ineffective by failing to object to the cell phone mapping evidence, which has been found admissible in previous cases. Some cases have held that mapping is so well-established that a Daubert hearing [see Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993)] is unnecessary (see ¶ 26).

    Fourth, the court refused to grant a new trial in the interest of justice. This power is used only in “exceptional cases,” a threshold that Cameron failed to meet (¶ 32). His arguments on this ground rehashed those the court had already rejected.

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